Abrams v. Sheehan

Stewart, J., delivered the opinion of the Court. We find no error in the refusal of the 2nd and 7th prayers of the avowants. Their right to recover was not a necessary conclusion, from the particular facts enumerated in these prayers. Every other material fact, to make out their case, seems to have been assumed as proved. The prayers were objectionable on another ground—they assert an erroneous principle as to notice. I.f the avowants had sufficient information to put them on enquiry as to the title to the property they were about to purchase, they are affected with notice. Price avid Bevans vs. McDonald, et al., 1 Md., 403. The 3rd and 4th prayers of the avowants were properly refused. Whether the order of the 28th November, 1870, is upon its face, and by its literal expression, applicable to rent already due and in arrear, is immaterial. The true intention of the parties executing the paper, must govern; and its natural import and construction is to be found, not so [458] much in a technical adherence to its isolated terms, as from a reasonable interpretation of its provisions, under the circumstances connected with it, éxplanatory of its meaning and purpose. Md. Ins. Co. vs. Bossiers, 9 G. & J., 120. This order refers to antecedent orders, which were admissible and necessary to a proper understanding of its meaning, and they must be referred to for that purpose. They all use similar expressions as to the rent, and it is obvious, from their terms and import, they were intended to apply to accruing rent. The 8th and 9th prayers of the avowants were properly refused. They embrace the same questions, and refer alone to the acts and declarations of Susan Schofield, the wife, in regard to the rent. They assume that notwithstanding the avowants had notice of the orders for the rent, before the date of their mortgage, they are not to be precluded from the recovery of the rent accruing after their purchase. The orders were given to Mr. Fowler by Mr. Schofield, on account of the rents now in controversy, with his wife’s assent and authority, and the money advanced thereon was used by husband and wife in carrying on a hotel. It is stated in Taylor’s Landlord & Tenant, sec. 428, that an order from a landlord on his tenant, to pay accruing rent to a third person, operates as an assignment of such rent, and that the tenant is bound to pay to such person, whether he has accepted the order or not, and notwithstanding a subsequent notice from the landlord not to pay. According to the proof in this case, the obligation of the tenant is, if possible, made stronger, because the orders upon the tenant were not only given to Fowler, but accepted by Sheehan, the tenant, who made himself responsible for the payment of the rent to Fowler, as it accrued, at least so far as Schofield and wife were concerned. Fowler thus acquired an equitable lien on the rent. Although it was the separate property of the wife, Schofield the husband, as well as his wife, was interested in [459] the lease, and acted as the agent of his wife so far as she was concerned. By the term of the lease the receipt of either was authorized for the payment of the moneys arising therefrom. The husband and wife could thus in conjunction manage the property. Unger and Wife vs. Price, 9 Md., 552 ; Tiernan vs. Poor, 1 G. & J., 216; Brundige vs. Poor, 2 G. & J., 1; Hall and Hume vs. Eccleston, 37 Md., 310. It would be gross injustice towards others, upon Fowler thus advancing the money, and upon the tenant thus dealing with the husband and wife in good faith, to permit the wife herself, much more those claiming under her with notice, under such circumstances to repudiate any responsibility in such transactions. This the wife does not attempt in this case ; on the contrary she recognizes the authority of her husband in the settlement of the rent, and does not pretend to deny the validity of the dealings between her 'husband and the tenant. But the avowants claiming under her, insist she is not to be held bound thereby, and that they are entitled to the rent. The wife recognizes the adjustment of the rent accruing under the lease, and would be estopped from setting up any claim thereto, and certainly the avowants claiming under her with notice, can acquire no better right than she possessed, and are equally estopped. This being the condition of the rent assigned and pledged for the payment of the money advanced; the avowants in taking a mortgage upon the property, and purchasing the same with full knowledge of these facts, are bound by all the equities which the tenant could enforce against the vendors. Their title ought and must be postponed to the right of the tenant, and subject to his responsibility under the equitable assignment of the rent, and his agreement to pay the same. To hold otherwise would result in gross injustice. Md. and N. Y. Coal and Iron Co. vs. Wingert, 8 Gill, 170; [460] Owings vs. Miller & Mayhew, et al., 29 Md., 144 ; Story’s Equ. see. 395 ; Kerr on Frauds, 183. (Decided 24th June, 1874.) The prayers assume the avowants had notice which relieves the case of all embarrassment from questions, as to what shall be the character of the notice to affect parties actual or implied and constructive. The case of Martin vs. Martin, 7 Md., 370, referred to in the briefs on both sides, where the property had been- rented, after the lien of the judgment against -it, has but little application to the questions now involved. It was held in that case that the purchaser at the sheriff's sale was entitled to the rent falling due after the accrual of his title, though the landlord against whom the judgment had been entered, had anticipated its payment by orders on the tenant, which had been accepted by the tenant. That they afforded no lien to the prejudice of the plaintiff in the judgment, and that persons dealing with the tenant in reference to the rent accruing from the land, acquired rights subordinate to the judgment lien. The judgment as a lien on the property afforded sufficient notice to the world. There is no doubt the rent is an incident to the reversion, and the assignee is entitled to it accruing after the assignment, where there has been no severance or reservation of the rent, or other just and equitable appropriation, or discharge of the same; but this right to the rent is subject to all the equities or just demands of the tenants or other incumbrances affecting and controling the payment of the rent. The right of the reversioner is not necessarily superior to all other demands. The avowants are affected and estopped by the notice they had of the arrangement of the rent in dispute between their vendors and the tenant, and have no just or legal claim to the same, upon the hypothesis of the 8th and 9th prayers. Judgment affirmed.