86 Md. 63 | Md. | 1897
delivered the opinion of the Court.
The bill of complaint in this case was filed in the Circuit Court for Baltimore City to enforce the specific peformance of a contract made by the appellant with the appellee to buy an original ground rent of one hundred and forty dollars per annum issuing out of a lot No. 148 Forrest street, near Gay, in said city. The bill was demurred to, and the Court below sustained the demurrer, and on appeal to this Court the cause was remanded, without either affirming or
In the opinion remanding the cause (81 Md. 618) this Court said : “ Brock’s surrender of his lease, and the acceptance of another in its place, could have no effect against the mortgagee, or any tenant holding under the title derived from him. Consequently the second lease and the reservation of rent contained in it would be inoperative to bind the
The first question therefore is, have the complainants furnished such proof of the existence of these facts as will entitle them to a decree ? We think not. Of the witnesses who have testified in the cause, Mr. Rogers, Mr. Collett and Mr. Judik are the only persons who could state anything concerning these facts. After stating that the enclosure coincided with the description in the second lease, Mr. Rogers testified that some of the older tenants paid him rent, but he could not say whether any of the latter tenants had recognized him, or when he last collected any rent, but he thought that the Socrates Building Association was the last to pay any, and it was very remiss in its payments. It appears that during his ownership of the reversion there were two other succeeding holders of the record title, as originally described, prior to Overton; Mr. Rogers admits that sometime before the sale of the reversion to Collett the tenants had repudiated him, but he did not know “ what kind of repudiation it was.” When we examine the testimony of Mr. David S. Collett and Mr. J. Henry Judik it is discovered that neither of them testify that the assignees of the original leasehold, who claim title under the mortgage, had taken possession of the lot enclosed by Brock, and paid the rent reserved to the reversioner. Mr. Collett’s testimony
But was this contract in all respects full, fair and honest in the beginning, and such that may be fairly and conscientiously required to be performed ? The ground rent which was sold to appellant was “ an old, original, irredeemable and well secured rent for one hundred and forty dollars,” on 418 Forrest street, near Gay. This was the statement of the advertisement as well as of the auctioneer. The meaning of this language is that the ground rent offered for sale was well secured and irredeemable, and that it was ■created for the sum of one hundred and forty dollars and had been in existence many years. The proof is that it was neither .an “ old” nor an original rent for that sum, but a rent for two hundred and forty dollars to be reduced to one hundred and forty dollars. But assuming ex gratia argumenti that this makes no difference to the purchaser, was it true that it was “well secui'ed?” In addition to the fact that no such ground rent exists on the property as enclosed and occupied by Brock, the preponderance of the testimony shows conclusively that it was not a well secured rent. And a review of the whole case shows vety plainly that the acquisition of the leasehold estate, subject to a rent of two hundred and forty dollars, which had really been abandoned
Decree reversed and bill dismissed.
(Decided June 22nd, 1897).
In disposing of the second appeal, Russum, J. delivered the opinion of the Court.
The appeal in this case is taken from an order of the Circuit Court for Baltimore City dismissing the petition of the defendant for the rescission of the decree passed in this cause, on the 26th day of May, 1896, and for a rehearing. It is settled by repeated decisions in this Court that a petition for a rehearing is in the nature of a motion for a new trial, and is addressed to the sound discretion of the Court,
The appeal must, therefore, be dismissed with costs.
Appeal dismissed.