69 Md. 1 | Md. | 1888
delivered the opinion of the Court.
This is, in some respects at least, a remarkable case. The bill is filed under sec. 99, Art. 16 of the Code as amended by the Act of 1886, ch. 232, for the sale of two and one-half acres of land, because it cannot be divided in kind, without loss or injury to the parties in interest. The lot of ground is subject to a leasehold estate of ninety-nine years, renewable forever, upon the payment of an annual rent of six cents, which leasehold estate is held in trust for the use and benefit of the High German Lutheran Church in Baltimore City.
The inheritance subject to this leasehold interest, belongs to seventy-five persons, and is valued at $125. The lot is not, according to the proof, susceptible of partition without loss and injury to the parties in interest, and thereupon the Court decreed it should be sold. What advantage the owners of the inheritance are to derive from a sale, is not apparent, certainly upon the face of the record, for the costs of suit to the' date of the decree amount to $167.55, to which must be added commissions to the trustee, cost for advertis
So in this case as the proof shows that the property will not divide in kind, ufithout loss or injury to the
There is however an objection to the decree below, and one on account of which it must be reversed, and the cause remanded. The defendants in- their answer allege that the lease granted to certain persons therein named for the use and benefit of the High German Lutheran Church is a void lease, because the beneficial lessees were unincorporated at the time it was made, and that the parties to the suit are entitled to the property, free and discharged of this alleged leasehold estate. If this be so, then the interest of the parties in the lot may be a valuable interest, and the Court ought undeij such circumstances to have withheld the bill, for a reasonable time, until the validity of the lease was tested, or at least to have given the parties an opportunity to test its validity. The delay could not possibly work any injury, for if the lot was sold subject to the lease, the proceeds of sale, it is clear, would not even pay the costs of suit. So there was no money for the parties from such a sale. And besides, where there is a question as to the quantity of interest to which the parties are entitled, the Court ought to stay the proceedings until that question is determined. Com. Dig. Chanc., (4 E.); Bishop of Ely vs. Kenrick, Bunb., 322; Blynman vs. Brown, 2 Vern., 232; Parker vs. Gerard, Ambler, 236.
As to making the owners of the leasehold interest original parties, it does not strike us there is any force in this objection. The bill was filed for the sale of the inheritance subject to this interest, and such a sale could not in any manner affect the interest of the lessees. And this being so, it was not necessary to make them parties. In Baring vs. Nash, 1 Ves. &
Decree reversed, and cause remanded.