Hoffman v. McColgan

Roberts, J., delivered the opinion of the Court. The appeal in this case is taken from a decree of the Circuit Court No. 2, of Baltimore City. The material facts are, that on April 3d, 1894, the appellee executed a ninety-nine years’ lease, in the usual form, to a certain Thomas F. B. Clarke. The consideration therein was stated to be one dollar, and the rent reserved was at the rate of six dollars per front foot. The lease was recorded on the day of its execution, and shortly thereafter, on the same day, the.appellee and. said Clark entered into an agreement, by the terms of which Clark was to build certain houses upon the leased premises, according to the specifications in said agree [394] ment particularly set forth. By the terms of said agreement, the appellee promised to pay to said Clark, “as a bomis and not as a loan,” the sum of $500.00 upon each of said houses, during the progress of the work, in seven equal instalments, and upon the completion of said houses by said Clark, the appellee covenanted to deliver to said Clarke a full release for all ground-rent due and payable to the first of October, 1894. It was further stipulated therein, that upon the completion of said houses in all respects, according to the requirements of said agreement, and within ninety days thereafter, and upon thirty days’ notice from said Clarke, the appellee would loan, or procure to be loaned to said Clarke, the sum of seven hundred dollars upon each of said lots so improved; provided said lots should be clear of all lien claims, charges and incumbrances, other than the ground-rent reserved thereon. Shortly after the date of said agreement, Clarke commenced the erection of the buildings mentioned therein, and on May 26th, 1894, informed the appellant of the terms of his lease from the appellee, which was then on record, and thereupon he agreed in writing with the appellant to purchase from him a large lot of bricks, which were delivered by the appellant, and used in the erection of said buildings. In the course of construction of said houses, the appellee was, by the terms of his agreement with Clarke, required to make certain payments to him, which he accordingly did. Clarke becoming financially embarrassed, discontinued work on the buildings when the appellant filed his lien, for the purpose of subjecting the reversion of the appellee in said lots to the payment of his claims. So that the question, which we are now called upon to determine, is whether the appellee’s reversion in said leased premises can be subjected to the payment óf the claim of the appellant for the brick furnished by him and used in the construction of said buildings. It is, we think, very clear that the appellee had no knowledge of the financial condition of Clarke at.the time he contracted with him for the erection of the houses; and [395] that before making said contract, he made such inquiries as were well calculated to favorably impress him with his ability to execute his contract. The appellant’s own testimony shows that he knew from Clarke the nature of his contract with the appellee, and it was his duty, before delivering the bricks, to have satisfied himself as to the state of Clarke’s title to the lots built upon. Certainly he was not misled by any act or representation of the appellee, with whom he had no intercourse whatever. Although the bill charges bad faith, arising out of the alleged fact that the rent reserved by the appelleewhollydisproportionedtothevalue of theproperty, we fail to discover in the record anything justly tending to sustain any such contention. In this State little difficulty ought to be experienced in the determination of the question arising on this appeal. Section nine of Article sixty-three of the Code provides that “where a building shall be erected by a lessee or tenant for life, or years, of a farm or lot of ground, or by an architect, builder or other persons employed by such lessee or tenant, the lien shall only apply to the extent of the interest of such lessee or tenant.” This provision of law has been frequently before this Court for construction, and its plain manifest meaning has been uniformly maintained. When a statute of this State has been passed upon by this Court, and received careful consideration and definite determination, as is the case here, it seems to us to be a fruitless effort to go out of the State to find how far other Courts may have differed with us as to the meaning of one of our statutes. We shall now make brief reference to some of the cases which we consider decisive on the question before us. The first time this Court was called upon to consider the provision of the Code hereinbefore quoted, which is taken in totidem verbis from the 7th section of the Act of 1845, ch. 257, was in the case of Mills v. Matthews, 7 Md. 322. In that case Mills and Milburn entered into a written contract under seal, which was recorded the same day, and therein the former agreed to sub-lease to the latter, for ninety-eight [396] years, renewable forever, a lot of ground in the city of Baltimore ; Milburn agreeing to erect on the lot, at his own cost and expense, five brick dwelling houses, and Mills contracting to advance, as a loan to Milburn to aid him in the erection of the houses, the sum of $300 on each house. Milburn covenanted that the houses should be finished and that he would repay the money advanced and all interest thereon on or before the 1st of January, 1853. Milburn contracted for the materials. - The money was loaned as stipulated, and upon the failure of Milburn to complete the houses and comply with his contract, the property being sold, the question arose between Mills, who claimed to recover the advances made, and the material-men. This Court said, “ as by the Act of 1845, the liens of the material-men can only attach upon the interest of Milburn, they can only claim to the extent of his rights founded upon the agreement which gave them existence.” The Court further said in that case, that the liens of the material-men could only attach to the interest of Milburn. Then followed the cases of Gable v. The Preachers' Fund Society, 59 Md. 456; Lenderking v. Rosenthal, 63 Md. 34, and Beehler v. Ijams, 72 Md. 195, in all of which cases the doctrine as announced by this Court in Mills v. Matthews, supra, is sanctioned and affirmed. After careful examination of the doctrines announced by the Courts of other States, we have, on a state of facts such as the record in this case presents, found very few decisions at variance with the views herein expressed. Mr. Phillips, in his work on Mechanics’ Liens, §§ 89, 90, in concluding a thorough examination of this subject, says: “ It may therefore be asserted, unless the law-making power expressly or by necessary implication enact otherwise, that a lessee cannot, without the consent of the. lessor, bind the reversion to answer for the improvement or repairs which he may erect upon the premises.” It may be that loss and hardship have followed the appellant’s venture, but this is not such a case as Courts can relieve against, for the reason that it would never have been possible that loss could have come to the [397] appellant if he had exercised, in some reasonable degree, proper caution and prudence. But this he did not do, and has only himself to blame for his misfortune. The views herein expressed are in exact concurrence with those of the learned Judge who decided the case below, and we therefore affirm the decree. (Decided June 18th, 1895.) Decree affirmed with costs.