Ehrman v. Mayer

Miller, «J., delivered the opinion of the Court. This appeal is from an order sustaining a demurrer io, and dismissing the bill of complaint, filed by the appellant against the appellees. The relief -prayed for by the bill, is that the defendants may be required either to convey to the complainant the naked fee held by them in a certain lot of ground in the City of Baltimore, or to execute to him a new lease thereof for ninety-nine years, renewable forever, subject to a merely nominal rent. The facts of the case so far as disclosed by the bill and ‘ «•‘•onipaiiying exhibits are substantially as follows: in íáepteinber, 1182, John Eager Howard executed a lease to John Hoos, of lot Ho. 649 in Howard’s addition to Baltimore Town, for ninety-nine years, with the usual covenant for perpetual renewal, reserving a yearly rent of “ fifteen pounds, nine shillings and four-pence, current money.” This lot has a frontage on Howard, street of about one hundred and sixty-nine feet. In January, 1828, the executors of Howard, under a power contained in his will, sold and conveyed the reversion in this lot with the incident rent to John Hoffman, and on the 2nd — 620 — of November, 1832, Hoffman conveyed tlie same to Lucretia Sears. Having thus become the owner of the reversion in the entire lot, Mrs. Sears on the 3rd of November, 1832, accepted a surrender from, one Eli Lilly, of his leasehold interest in a large part of the lot, consisting of about one hundred and twenty-two feet of its frontage, and on the same day she executed two leases for ninety-nine years, renewable forever, of the part so surrendered, one to Sommer and Smith for sixty feet, and the other to Lilly for sixty-two feet and six inches, reserving in each lease an annual rent of $300. It does not appear, nor is it averred, that she ever made any disposition of her reversion in the residue of the lot, consisting of a frontage of about forty-six feet, which she had acquired under the deed from Hoffman. She died in 1845, and the defendants are the trustee and cestuis que trust, who hold the legal and equitable interest in her property under her will. In June, 1864, Ehrman, the complainant, purchased from Gardiner and Matthews their leasehold interest in a lot fronting twenty-two feet on Howard street, which is conceded to be part of the residue of the lot abov'e mentioned, not embraced in the two leases of November, 1832. The deed by which this interest was conveyed to Ehrman, recites that the grantors acquired their title under an assignment from one John Harman, executed in April, 1851, subject to a yearly rent of $88, and they convey to Ehrman, subject to the same rent. No conveyance is produced showing how Harman acquired his title, nor is anything further stated in reference to the complainant’s title. The bill, however, admits that the lot thus conveyed to the complainant forms part of the lot originally leased by Howard to Hoos, and from this admission, as well as what is stated in the several conveyances above referred to, it must be assumed that the complainant derives his title from Hoos, the original lessee, through mesne assignments and sub-leases. Such being the state of the case, the — 621 — complainant, in his bill, avers and insists that he is in fact the owner of his lot in fee, and is entitled to a conveyance of the naked or technical paper title to the reversion therein held by the defendants, upon two grounds. 1st. That Mrs. Sears, by receiving and accepting a surrender of the leasehold interest in a pari of the lot, in November, 1832, and granting new leases thereof, reserving new and increased rents, thereby extinguished the ivhole original rent reserved-under the lease from Howard, and complainant’s lot, therefote, by operation of law, became released and relieved from the payment of any part of that rent, 2nd. Because no part of the original rent reserved by the Howard lease has, in the memory of any one now living, been paid by the owner of the lot now held by the complainant, and this lot has always been treated as discharged and'relieved from the payment of any portion of that rent. First. To sustain the first position, the appellant’s counsel insists that the rent reserved under our peculiar leases with covenants for perpetual renewal; is in the nature of a rent charge, which cannot be subdivided or apportioned. And where the party having the rent, purchases any portion of the land charged with its payment, the whole rent is thereby extinguished. But conceding this to be the case with respect to a rent charge, it is clearly not so, and never has been, with respect to a rent service, but just the contrary. In Littleton’s Tenures, sec. 222, the common law upon the subject is thus stated: “ Also, if a man hath a rent charge to him and his heirs, issuing out of certain land, if he purchase any parcel of this to him and his heirs, all the rent charge is extinct, and the annuity also, because the rent charge cannot by such manner be apportioned ; but if a man which hath a rent servicepurchase parcel of the land, out of which the rent is issuing, this shall not extinguish all hut for the par — 622 — cel; for a rent service in such case may he apportioned according to the value of the land.” And in his comments upon this section, Lord Coke says, that such rent services as were not within the Statute Quia Emptores, were apportionable at common láw: “ as if a man maketh a lease for life or years, reserving a rent, and the lessee surrender part to the lessor, the rent shall be apportioned; so if the lessor recovereth part of the land in an action of waste, or entereth for a forfeiture in part, the rent shall be apportioned.” Qoke Litt., 148a. The reasons upon which this distinction rests, as given by Lord Coke and Chief Baron Gilbert need not be stated at length. It is sufficient for our present purpose, that such distinction has in fact existed from the earliest period of the common law. By the same authority (Littleton, sec. 213,) rent service is defined to he “where the tenant holdeth his land of his lord by fealty and certain rent, or' hy homage, fealty and certain rent, or by other services and certain rent;” and in Smith’s concise and admirable lectures on the Law of Landlord and Tenant, (marginal page 90,) it is said that “every rent reserved upon a lease is a rent service, and is accompanied by that which is the incident of every rent service, namely, a right on the part of the lessor to distrain for it.” In leases like the one now before us, as well as in other leases of land, the rent most commonly reserved, is the yearly payment of a certain sum of money. According then, to the authorities referred to, (and none higher can be adduced,) if in such case, the lessee surrenders a part of the land to the lessor, the rent for the remainder is not extinguished, but apportioned. Woodfall’s Land. & Ten., (10í/¿ Ed.,) 361, 362. We hold then that apportionment, and not extinguishment, was the result of the conveyances of November, 1832, and that a proportionate part of'the original rent reserved in the lease of 1182, remained,-fastened upon the residue of the lot not embraced in those deeds. / — 623 — Second. Tn our opinion, the second position is equally unavailing and untenable. The hill does not aver that the complainant or those under whom he claims the lot in controversy, ever acquired title thereto by adverse possession. But even if that were the case, he would be compelled to stand upon or assert such a title at law, for it is very clear that a party whose title confessedly originates solely in a disseisin, lias no right to ask a Court of equity to reinforce that title by decreeing a conveyance of the paper title, by the true owner. But, if the theory of extinguishment by surrender be out of the case, the bill, as we understand it, concedes that the relation of landlord and tenant did exist, after the conveyances of 1832, between the then owner of the reversion and the then owner or owners of the leasehold interest in the residue of the lot not affected by these conveyances, and the argument is, that as no part of the original rent reserved by the Howard lease, has ever, in the memory of any one now living, been paid by any owner of the leasehold interest in the particular lot now held by the complainant, and that as that lot has always been treated as discharged and relieved from the payment of any portion of that rent, the law will presume some act of the parties in interest, relieving this lot from payment of any part of that rent, or its extinguishment quoad this lot. But, upon these facts alone, the law, in our judgment, raises no such presumption, and clearly not in a case where it is conceded the relation of landlord and tenant once existed between the parties under a lease like the present. On the contrary, in Campbell vs. Shipley, 41 Md., 81, where a similar lease was under consideration, the authorities were reviewed, and it was held to be well settled, that when the relation of landlord and tenant has been created, the possession of the tenant is consistent with the title of the landlord, and the mere non-demand and non-payment of rent, are not sufficient to bar the landlord’s title, whatever effect they may have, if long continued, upon — 624 — ■his right to recover the rent; and not only is the tenant precluded from relying on his possession to bar his landlord, but also all persons who come in under or derive possession from the tenant in any manner however remotely. In. such cases, possession is presumed to be in accordance with the title, and this presumption will hold until some notorious and unequivocal act of exclusion shall have occurred. (Decided 1st March, 1882.) For these reasons, we are of opinion, the complainant has not made out a case entitling him to the relief first prayed in his bill,- and this brings us to the alternative relief claimed, which we shall consider very briefly. There can we think, be no question as to his right to ■obtain relief by way of a renewal of the lease, but he can only do this under a bill making proper averments, and bringing before the Court the necessary and proper parties. What averments such a bill must contain, who should be parties to it, upon what conditions the owners of the reversion will be compelled to renew, and whether they can be required to execute more than one renewed lease for the entire residue of the lot not covered by the deeds of 1832, are all questions of importance and some of them not free from difficulty, but the present case does not call for a decision of any of them. The complainant asks that there may. be made to him a renewed lease of this lot subject to a merely nominal rent, and this, if we are right in the views already expressed, he is clearly not entitled to demand or receive. The rent reserved under the original lease, was a substantial money rent, and the part thereof to be apportioned to this lot, will still constitute a substantial and not a mere nominal sum. The result then is, that the order appealed from, must be affirmed, but the affirmance will be made without prejudice to the complainant’s right to file a new bill as above indicated. Order affirmed without prejudice.