Kraft v. Egan

Briscoe, J., delivered the opinion of the Court. The bill in this case is filed for a specific performance of a contract for the sale of land and improvements thereon. The original and supplemental hills, demurrers thereto, and order of Court thereon, are, by agreement of counsel, omitted from the record, and the questions to be passed upon by the Court arise upon a demurrer to an amended bill. The contract is set out in the — 251 — bill, and is in these words. “This agreement made this 11th day of March, 1891, between John G. Kraft and Peter Forney Winebrenner, of the City of Baltimore, in the State of Maryland, of the one part, and Charles E. Egan of said city of the other part. Witnesseth, that the said Kraft and Winebrenner have sold to said Egan all their land and improvements thereon, together with the boiler and elevator on the east side of Belt street, and south of Cross street, running to the Port Warden’s line, owned by said Kraft and Winebrenner and occupied as a packing house by P. E. and D. E. Winebrenner; which is subject to a ground rent of $600 a year. The terms of sale are twenty-seven thousand five hundred dollars for said property, of which the sum of one hundred dollars has been paid this day, — and thirty-nine or forty-nine hundred dollars more, — making, say, four thousand dollars or rive thousand dollars, shall he paid within thirty days from this date, and the balance within five years from first day of May, 1891, with interest semi-annually from that day. Possession to he given on 1st May, 1891. ’faxes to he adjusted to 1st May, 1891, in due proportion, also the ground rent to he paid up to 1st of April, 1891. Thirty days to he allowed from this day for the examination of title and the drawing of a deed to said Egan, and a mortgage from him to said Kraft and Winebreimer for the balance of the purchase money; said mortgage to contain the covenants, clauses and conditions usual in the City of Baltimore. ” The hill sets out that the complainants had performed all the conditions of the contract, and were willing and ready to deliver possession of the property, and had tendered possession thereof on the first day of May, 1891; that they were willing to accept either the sum of $ 3,900 or the sum of $4,900, within the period limited by the contract; to execute á proper deed, and to take a mort — 252 — gage to secure balance of purchase money, in accordance with the terms of the agreement. The defendant demurred to the hill and assigned as cause of demurrer: First, — That the contract is too uncertain to be enforced. Second, — That the contract is incomplete. Third, — That the interest and estate of the plaintiffs in the property is not such as was sold to the defendant. Fourth, — That the title to the property was clouded and embarrassed by a reasonable doubt. Fifth, — That the subject-matter of the contract is not sufficiently described. The principal question in the case arises upon the sufficiency of the description of the property sold as set out in the contract; and whether the appellants could make a good and valid title to the property sold, on the first day of May, 1891. It is contended on the part of the appellee, that the description that the property is situated “on the east side of Belt street and south of Cross street, running to the Port Warden’s line, owned by said Kraft and Winebrenner, and occupied as a packing house by P. F. and D. E. Winebrenner,” is uncertain and indefinite, because it does not state the city or State in which the property lies; and that parol testimony would have to be resorted to in order to establish the house and land on the east side of Belt street and south of Cross street and occupied by P. F. and D. E. Winebrenner. But this objection we do not think can he sustained. The parties between whom the contract is made are mentioned in the agreement as of the City of Baltimore, in the State of Maryland. The contract refers to Belt street and Cross street and to the Port Warden’s line, and states that the property is occupied as a packing house by persons who are named, and that it is owned by the — 253 — vendors, who reside in the City of Baltimore, Maryland. In addition to this a mortgage to secure a portion of the purchase money, with the conditions usual in the City of Baltimore is provided by the contract; and the bill alleges “that before the date of said agreement the defendant had been on the land, so sold to him, three or four times, and had examined the same, and well knew its location and situation in the City of Baltimore and had negotiations with reference to purchase of same.” Here we think is reasonable certainty in the description, which is all the law requires upon this subject. In the case of ‘‘Robeson and Maxwell vs. Hornbaker and Barber, 3 N. J. Eq., (2 Green,) 60, the Court held that it will not refuse a decree for specific performance, merely because the agreement doth not state in what county or State the lands agreed to be conveyed lie, provided the description of the premises is not thereby rendered altogether indefinite. In the case of Shardlow vs. Cotterel, L. R., 20 Ch. Div., 90, the following receipt alone was held a sufficient description: “Received of Mr. A. Shardlow the sum of £21 as deposit on property purchased at £420, at Sun Inn, Pinxton, on the above date, that is 29 March, 1880. Mr. George Cotterel, Pinxton, owner.” In the case of Ogilvie vs. Foljambe, 3 Merivale, 53 and 68, which is approved in Hurley vs. Brown, 9 Mass., 545, “Mr. Ogilvie’s house,” was held a sufficient description and that parol evidence was admissible to identify the property. The contracts sought to be enforced in those cases were all less certain and definite than the one in this case. The next and remaining objection is made to the sufficiency of the title of the appellants, under this deed. What was, then, their title? On the 8th of November, 1866, the property had been leased by Anna H. Howard and Jane G. Howard to Wm. Numsen and John A. — 254 — Allers for 99 years, renewable, at the yearly rent of $600; and on the 11th of November, 1869, sub-leased by Numsen and Allers to the plaintiffs for the residue of the term, save one year, reserving an annual rent of $1500, with a covenant that the sub-lessors would pay the original rent of $600 or save the sub-lessees harmless from it. On the 18th of August, 1870, the sub-lessors, Numsen and Allers, executed a deed and release to the sub-lessees, the appellants in this case, for the residue of the term, subject to the rent of $600, reserved by the original lease. It is very manifest from an examination of this deed, that it was the clear intention of the grantors to assign the whole of their leasehold interest, thereby extinguishing the sub-lease. The habendum clause is as follows: For “all the residue of the term yet to come and unexpired therein, with the benefit of renewal forever, subject to the payment of the annual rent of $600 as mentioned in said lease from Anna H. and Jane G. Howard to said parties of the first part, but free, clear •and discharged from any other or greater rent reserved by the aforesaid sub-lease from the parties of the first part to the parties, of the second part, as above mentioned; and the said parties of the first part covenant to warrant specially the property hereby granted, and to execute such further assurances as may be requisite. ” The deed not only conveys the whole term as originally created, but specifically states that it shall be subject only to the original rent of $600, and shall be free, clear, and discharged from any other rent reserved by the sub-lease. And when this clause of the deed is considered in connection with what precedes it, we think it is clear that there was a surrender to the tenants of the sub-lease, and therefore a surrender of the rent thereunder, leaving .the term subject only to the original rent of $600. We — 255 — are therefore of the opinion that the title to this property is free from doubt, and, as the description is ample, the plaintiffs are entitled to a decree for specific performance. Entertaining these views, we shall reverse the order, with costs, from which this appeal is taken, and remand the cause. (Filed 8th June, 1892.) Order reversed, and cause remanded.