Dickinson v. Mayor of Baltimore

| Md. | May 8, 1878

Stewart, J.,

delivered the opinion of the Court.

The appellant had leased to the appellee or its agent, a certain store or cellar, in the City of Baltimore, for the term of three years ; the term had expired and the property was surrendered to her.

Waste thereon, or injury thereto, being alleged to have been committed by the appellee during the tenancy, this action was brought for the recovery of damages therefor..

During the pendency of the action the appellant conveyed the property to the appellee.

This alienation was relied upon as a sufficient defence to the action, the appellee insisting that to enable the appellant to recover, it was necessary not only that she should hold the reversionary interest when the waste was done, hut at the time of the recovery.

The Superior Court entertained this view, and so ruled, in which we think there was error.

The right of the appellant otherwise to recover, seems not to have been questioned.

The law in regard to ancient and modern remedies for waste, is well stated in note 7, Greene vs. Cole, 3 Wms. Saunders, 252.

The action of waste as formerly known was a mixed action, being partly real and partly personal, and consisted in privity, and by it the owner of the inheritance in reversion, or remainder, in fee or tail, recovered against the tenant in dower, tenant by the curtesy or guardian in chivalry, the thing or place upon which the waste was committed, and also damages for the injury. It was therefore necessary that the plaintiff should be entitled to the property upon which the waste was committed, not only at the time of the waste, but when the recovery was had. There can be no doubt therefore, that the action of waste could only be brought by the person having the inheritance at the time when the waste was committed to his prejudice by the respective tenants aforesaid, and being confined in its operation, to the proprietor of the inheritance and the tenant of the land, between whom there existed a relation of privity to some extent, according to the nature of the tenure, if after the waste, the inheritance was alienated, and that privity broken up, the action of waste was gone. 1 Coke upon Lit., 53 a.

By the Statute of Marlbridge, 52 Henry 3, ch. 23, and of Statute 6, Ed. 1, ch. 5, the action of waste was given a wider range, and could be brought against lessee for life or years, or against the assignee of the same for waste done after the assignment. 1 Sharswood’s Blackstone, 283; 2 Blackstone’s Com., 178, n. 7; Greene vs. Cole, 3 Saunders Rep. , 252, n. 7.

To avoid the defective and inadequate remedy afforded by this action, as known to the common law, or as modified by the Statutes of Marlhridge and Gloucester, and to provide an effectual remedy or method of recovery against tenant or stranger, where no privity existed, better adapted to the exigencies of the case, the action on the case in the nature of waste, as it is denominated, was devised; which enables the party who has been injured in his reversionary right, to recover damages for the same, and whether he has become repossessed of the property after the injury, or has transferred the same, does not affect the claim for the damages committed to his property at the time it belonged to him. It extends to every case where one who has any reversionary interest or estate in the premises suffers I by the tortious act of the actual tenant or occupant. The! transfer of the estate afterwards cannot operate to condone!; the wrong.

It is an equitable action and not to be discountenanced by any technical consideration, hut must be sustained in all cases, and against all persons, who are by the common law or under the statutes aforesaid, liable to the action of waste. White vs. Wagner, 4 H. & J., 373, per Justice Johnson.

It can he brought by a party in remainder for life or years, as in fee or tail, who held the interest at the time of the injury. McLaughlin vs. Long, 5 H. & J., 113.

It entitles the party to recover for the actual damage committed, with costs, against any one who commits the wrong, whether lessee or stranger. 1 Wash. on Real Property, 153 ; 4 Kent Com., 83 ; Taylor’s Landlord and Tenant, sec. 688 ; Addison on Torts, 245.

The case of Bacon vs. Smith, 41 English Com. Law R., 571, is not in conflict with this view.

The husband and wife there were seized of the messuage for their joint lives and the life of the survivor ; and all of the husband’s interest became vested in the defendant, who permitted the waste during . the life-time of the husband.

It was held by the Oourt, that the wife who survived her husband could not maintain an action on the case, against the defendant in respect to such waste.

The ground of the decision was, that there was no vested interest in the wife at the period when the waste was committed.

The remark of Patterson, Judge, referring to Go. Litt., 53 5, that “ after waste done, there is a special regard to he had to the continuance of the reversion, in the same state that it was at the time of the waste done; and that the action of waste, is said, to ‘consist in privity,’” assumes that this has reference to the old form of action of waste.

That privity is no longer necessary, is well established, for the action may he brought against a stranger.

The further remark of Patterson, J., “that the- rule equally applies to the action on the case in the nature of waste,” seems merely his dictum, and we have not been able to find any case to sustain him in that view.

In the case of Dupree vs. Dupree, 4 N. C. R., 381, where it was held, that the purchase by the reversioner of the estate of the particular tenant after the waste committed, was no valid objection to his right of action, reference is made by the learned Judge (Battel,) who delivered the opinion of the Court, to the idea urged in the argument of that case, that there must exist a particular estate, and a reversion at the time when the action is brought, as well as when the waste was committed.

The counsel in that case relied upon Co. Litt., 53 b, and the remark of Patterson, J., but the Court held, that the action in the nature of waste, was not confined as the old action of waste was, to the owner of the inheritance against his tenant for life or years ; but can' be bought by a person in remainder or reversion, for life or years, as well as in fee or in tail; and against a stranger as well as against a tenant.

(Decided 8th May, 1878.)

That it may be brought also in the tenuit against a tenant after the term for life or years has expired, — that privity is not essential to the maintenance of the action, and nothing to forbid a remainder-man or reversioner after the purchase by him of a particular estate from recovering for the waste done before, — that the right to damage for the waste done does not depend on the tenure.

Upon what souud principle can it be held, because the reversioner of the estate, after the waste committed, has alienated her interest, (whether to the party committing the waste or to another, can make no difference,) she is to be precluded from a recovery? We know of none.

If the plaintiff here held the reversionary interest in • the property at the time the alleged waste was committed, she is entitled to recover for the same; and her alienation of the property subsequently, or during the pendency of the suit for damages, cannot operate to defeat her' right of recovery.

Judgment reversed, and new trial ordered.