57 Md. 612 | Md. | 1882
delivered the opinion of the Court.
This appeal is from an order sustaining a demurrer io, and dismissing the bill of complaint, filed by the appellant against the appellees. The relief -prayed for by the bill, is that the defendants may be required either to convey to the complainant the naked fee held by them in a certain lot of ground in the City of Baltimore, or to execute to him a new lease thereof for ninety-nine years, renewable forever, subject to a merely nominal rent. The facts of the case so far as disclosed by the bill and ‘ «•‘•onipaiiying exhibits are substantially as follows:
in íáepteinber, 1182, John Eager Howard executed a lease to John Hoos, of lot Ho. 649 in Howard’s addition to Baltimore Town, for ninety-nine years, with the usual covenant for perpetual renewal, reserving a yearly rent of “ fifteen pounds, nine shillings and four-pence, current money.” This lot has a frontage on Howard, street of about one hundred and sixty-nine feet. In January, 1828, the executors of Howard, under a power contained in his will, sold and conveyed the reversion in this lot with the incident rent to John Hoffman, and on the 2nd
1st. That Mrs. Sears, by receiving and accepting a surrender of the leasehold interest in a pari of the lot, in November, 1832, and granting new leases thereof, reserving new and increased rents, thereby extinguished the ivhole original rent reserved-under the lease from Howard, and complainant’s lot, therefote, by operation of law, became released and relieved from the payment of any part of that rent,
2nd. Because no part of the original rent reserved by the Howard lease has, in the memory of any one now living, been paid by the owner of the lot now held by the complainant, and this lot has always been treated as discharged and'relieved from the payment of any portion of that rent.
First. To sustain the first position, the appellant’s counsel insists that the rent reserved under our peculiar leases with covenants for perpetual renewal; is in the nature of a rent charge, which cannot be subdivided or apportioned. And where the party having the rent, purchases any portion of the land charged with its payment, the whole rent is thereby extinguished. But conceding this to be the case with respect to a rent charge, it is clearly not so, and never has been, with respect to a rent service, but just the contrary. In Littleton’s Tenures, sec. 222, the common law upon the subject is thus stated: “ Also, if a man hath a rent charge to him and his heirs, issuing out of certain land, if he purchase any parcel of this to him and his heirs, all the rent charge is extinct, and the annuity also, because the rent charge cannot by such manner be apportioned ; but if a man which hath a rent servicepurchase parcel of the land, out of which the rent is issuing, this shall not extinguish all hut for the par
For these reasons, we are of opinion, the complainant has not made out a case entitling him to the relief first prayed in his bill,- and this brings us to the alternative relief claimed, which we shall consider very briefly. There can we think, be no question as to his right to ■obtain relief by way of a renewal of the lease, but he can only do this under a bill making proper averments, and bringing before the Court the necessary and proper parties. What averments such a bill must contain, who should be parties to it, upon what conditions the owners of the reversion will be compelled to renew, and whether they can be required to execute more than one renewed lease for the entire residue of the lot not covered by the deeds of 1832, are all questions of importance and some of them not free from difficulty, but the present case does not call for a decision of any of them. The complainant asks that there may. be made to him a renewed lease of this lot subject to a merely nominal rent, and this, if we are right in the views already expressed, he is clearly not entitled to demand or receive. The rent reserved under the original lease, was a substantial money rent, and the part thereof to be apportioned to this lot, will still constitute a substantial and not a mere nominal sum. The result then is, that the order appealed from, must be affirmed, but the affirmance will be made without prejudice to the complainant’s right to file a new bill as above indicated.
Order affirmed without prejudice.