Shanfelter v. Horner

Roberts, J., delivered the opinion of the Court. This is an action of ejectment brought by the Comptroller of Baltimore, as trustee for the city, against the defendant, the tenant in possession of the Imperial Hotel property in said city. Issues were joined on the plea of not guilty, and the verdict and judgment being for the plaintiff, the defendant has appealed. The facts are, that the defendant and one Charles C. Duffy, as partners, leased from Charles J. Bonaparte the premises in question, on the 28th of March, 1892, for a term of five years, beginning May 1st, 1892, at a rental of $800 per month (which was subsequently in — 626 — creased), payable on the first day of each calendar month during said term. Shortly thereafter Duffy died, and on June 5th, 1893, his personal representatives' and the defendant made another agreement with Bonaparte, by which the interest of Duffy’s estate in said lease was transferred to the defendant. By the terms of this agreement the defendant was accepted by Bonaparte as "sole tenant and debtor,” ánd the estate of Duffy was released from all liability on account of said lease. There can be no question on the evidence, which the record presents, that the defendant not only recognized and treated Bonaparte as his landlord, but after said Bonaparte, by his deed of date September 1st,' 1893, conveyed said property to the appellee, • the appellant treated the appellee as his landlord and fully recognized him as such. Looking to the terms of the original agreement of lease between Bonaparte and Duffy and the defendant, we find this provision, that, "if the rent hereby stipulated to be paid shall, at any time during the continuance of any tenancy created, or to arise in pursuance of this agreement of lease, be for more than ninety days due and in arrear, then the said tenancy shall be at once, and'without notice of any kind, determined, and the party of the first part become and be entitled to immediate possession of the premises aforesaid, provided he shall so elect, but not otherwise.” It is not pretended that the plaintiff did not elect. • ' Referring to the deed from Bonaparte to the defendant, we find that said property is conveyed, “with the right' of the said James R. Horner, trustee, to enforce all the covenants and provisions of said lease, as fully and in the same manner as said Bonaparte could enforce the same, in the event of any future default upon the part of the said Shanfelter or any one claiming under him;” and further, that said property is conveyed “in trust, that said Horner shall hold said property hereby intended to be conveyed, and collect all the rents, income and revenues to be derived therefrom, when the same shall mature and accrue, for the sole and separate use of the Mayor and City Council of Baltimore, &c.” — 627 — The record contains three exceptions. The first and third relate to the prayers, and the second to the evidence. At the close of the plaintiff’s case, the defendant offered a prayer, by which he sought to take the case from the consideration of the jury. This prayer will be considered in connection with the prayers offered at the conclusion of the case. The second exception is taken to the refusal of the Court to allow the appellant to state why he did not pay any rent for the leased property after the first of December, 1893. We have not been referred to any authority which tends to sustain the relevancy or materialty of this question. It does not belong to that class of questions, to determine the relevancy of which it is necessary that it should have been answered. But under the issues in this case, the question of itself and by itself was properly disallowed. As said by the appellant’s attorney in his brief, “The forfeiture vcl non of the lease depended upon his act. not upon his motives.” It is admitted that no rent was paid after the date named, and if we correctly understand the statement of the counsel for the appellant, in this Court, it is not contended that the appellant had any valid excuse for not paying the rent due by him. But in any event, we think no just reason has been assigned why the rent was not paid. We find no error in' the proposition of law submitted by the appellant for the instruction of the jury, and granted by the Court, which, together with the prayer of the appellees refused by the Court, constitute the third bill of exceptions. This prayer of the appellant presents the chief contention in this appeal. It is as follows : “ The defendant prays the Court to instruct the jury that the plaintiff is not entitled to recover, unless they find that the plaintiff demanded payment of the precise sum due on the most notorious part of the demised premises at a convenient time before sunset on the day it was due, and that of these facts there is no evidence.” If this prayer correctly states the rule of law which ought to obtain in this State in the forfeiture of a lease for the nonpayment of rent, it is quite clear that it has not been followed — 628 — in this case. But we think the appellant has misconceived the true meaning and legal effect of the condition contained in his agreement of lease with Bonaparte. It will be seen, by reference to its terms, that a re-entry was not requisite to have entitled the lessor to determine the tenancy, for it is expressly provided thereon, that if the rent shall be for more than ninety days due and in arrear, the tenancy shall be at once, and without notice of any kind, determined. We •do not agree with the appellant that this condition must be held subject to the common law requirements set out in the prayer now under consideration. To do so, would be to ignore the whole tendency of modern legislation as illustrated in the enactments of the various States of the Union, •and especially in our own State, in the Act of 1872, ch. 436. Lord Tenterden, speaking as to the construction proper to be placed upon conditions of this character in Doe & Davis v. Elsam, 1 M. & M. 189, said: “I do not think provisoes of this sort are to be construed with the strictness of conditions at common law. These are matters of contract between the parties, and should, in my opinion, be construed as other contiacts. The parties agree ta a tenancy on certain terms, and there is no hardship in binding them to those terms. In my view of cases of this sort, the provisoes ought to be construed according to fair and obvious construction, without favor to either side.” There never was any just reason for giving to the condition contained in an agreement for a lease an interpretation totally at variance with the canons of construction usually applied in the ascertainment of the true meaning of contracts made in the ordinary affairs of life, and we are unwilling to sanction it now. Sedgwick & Wait in their work on the Trials of Title to Land, § 367, say: That in all cases where an estate for years is granted on condition, and the lease declares that the estate shall cease and determine on the breach of the condition, without any clause of re-entry or other •qualifications, the estate will ipso facto cease as soon as the •condition is broken. Parmelee v. O. & S. R. R. Co., 6 N. Y. — 629 — 74; see Morten v. Weir, 70 N. Y. 247. Mr. Washburn, in his work on Real Property, vol. 1, p. 505, speaking of the effect of a condition subsequent, says: “Again, it is held that a condition can only be taken advantage of, if broken, by the lessor, or his assigns * * * and if the estate of the tenant be one for life, the reversioner can only defeat it by entry. But, if it be for years, no entry is necessary, unless it is stipulated in the lease that the lessor shall re-enter, and in this case he may, after breach, bring ejectment without first making a formal entry.” Roberts v. Davey, 4 B. & Ad. 664; Hughes v. Palmer, 19 C. B. 405 ; Shattuck v. Lovejoy, 8 Gray, 204; Gamhart v. Finney, 40 Mo. 449; Doe v. Birch, 1 M. & W. 402; and, again, the same author, on p. 513, further says: “Sometimes the parties agree that upon the non-payment of the rent the lessor may enter for breach of the condition without previous demand, and in such case a previous demand is unnecessary.” Doe v. Masters, 2 B. & C. 490; Assoc. v. Howland, 5 Cush. 214; 2 Platt Leases, 338 ; Byrane v. Rogers, 8 Minn. 281; Sweeny v. Garratt, 2 Disney, 601. To like effect is Gear on Landlord and Tenant, § 71, who says: “ Conditions subsequent are those by the forfeiture or non-performance of which an estate already vested may be defeated. * * * If a lease for an estate for years declares expressly that it shall terminate upon a breach of a condition subsequent, and contains no clause of re-entry, it will then end ipso facto; but, if it contains a clause of re-entry, it is only voidable by re-entry.” Parmelee v. R. R., supra. In a note to 1 Broome & Hadley's Commentaries, 604, it is stated that “ In the case of a condition to determine a freehold estate, entry or claim is requisite; but in case of a condition of a lease for years, declaring that it shall be void in a certain event, the reversioner may treat the terms as having absolutely determined when the event happens, without any entry." Coming now to the case of Cooke v. Brice, 20 Md. 397, we think it strongly supports the case of the appellee. — 630 — The condition in that case was, “ That in case the rent reserved shall be in arrears and unpaid for the space of six months the lease shall be void.” In this case the condition is mpre explicit and direct, and leayes nothing to inference, and, if we adopt Lord .Tenterden’s excellent rule of construction, we will experience, no -difficulty in saying that the Court below committed.no error in rejecting the appellant’s prayer. (Decided June 20th, 1895.) There yet remains for out consideration the question as to the plaintiff’s right to maintain the action in the manner in which it has been brought. It is contended that the character of a party, whether acting indirectly or in a representative capacity, must appear. If in the progress of the case in the Court below it had appeared that the plaintiff had no interest therein authorizing him to maintain the, .action, it would have been then and there an easy matter to have availed of his lack of authority to sue. But instead of seeking to take action on the question, the defendant allowed the plaintiff to prove without objection by the very terms of the deed from Bonaparte to the plaintiff that he held the property in trust for the Mayor and City Council of Baltimore, &c. We think it clearly appears from the evidence that the appellee, as trustee, held such an interest in the property as authorized him to maintain this action. Finding no error in the rulings of the Court below, we affirm its judgment. Judgment affirmed with costs.