86 A. 986 | Md. | 1913
In April, 1910, Robert L. Werntz instituted a suit in ejectment against Charles G. Feldmeyer in the Circuit Court for Anne Arundel County, to recover possession of the premises in the City of Annapolis, known as No. 48 Maryland avenue. The size of the lot was said to be 20 by 90 feet, adjoining the Annapolis Opera House, formerly known as The Masonic Hall, and the declaration sought a recovery of the land and $1,200 damages. *287
To this declaration the defendant, appellant here, filed — first, a plea of non cul. The case was then removed to Baltimore City for trial, and after its removal there, additional pleas were filed, the second being a plea upon equitable grounds; the third, that the defendant was holding the property under the provisions of a lease thereof set out in the equitable plea; and fourth, that the defendant so holding the property had performed all stipulations and covenants contained in the lease to be by him performed; and the fifth plea set up, that the matter in controversy was res adjudicata.
The plaintiff demurred to the second and third pleas, and filed a motion of ne recipiatur as to the plea of res adjudicata, and the demurrer and motion were subsequently sustained.
The action of the lower Court in this regard presents the first matter for consideration. An appeal from the final judgment in a civil action brings up for review the action of the trial Court in its rulings on demurrers to pleas and replications, and no bill of exceptions or writ of error designating the point of law is necessary. Kendrick Roberts v. Warren Brothers,
The sufficiency or insufficiency of equitable pleas has been frequently before this Court, and the authorities were very fully collected in Bond v. Murray, 84 Atl. Rep. 655, where it was stated that a defense which is a good defense at law, can not be pleaded on equitable grounds, because it is only such a defense as could not formerly have been pleaded at law, that is now let in on equitable grounds. The equitable plea in this case set up the following matters: that on the 16th January, 1875, the property which is the subject-matter of the suit, was in the possession of the Trustees of the Annapolis Lodge No. 89, Ancient Free and Accepted Masons of Anne Arundel County, who on that date leased the land to Charles H. Hopkins and Spedden V. Wilson for a term of twenty years from that date. The lease is set out in full, and that paper recites that in contemplation of the lease, *288 Hopkins and Wilson had erected, at their own expense, a two-story frame building on the lot 20 by 90, south of and adjoining the Masonic Hall; that the Trustees, the party of the first part to the lease, were to have the full use of the second story of the building to be used by them in conjunction with a large room in the Masonic Hall, which is used for giving theatrical and other public entertainments, and for such other reasonable purposes to which the parties of the first part should see fit to apply them; that the parties of the second part were to pay all taxes and assessments levied and to be levied upon the lot so leased and the dwelling or dwellings erected thereon, and then follows this provision:
*289"Third. That they will further during the continuance of said lease keep the second story of said building in good and proper repair; that they will permit such portion of said lot as is not covered by said building to be used in common with them as a yard for the said Masonic Hall, and that they will not permit intoxicating liquors to be sold in said building during the continuance of said lease. And the said parties of the first part, for themselves, their heirs and assigns, covenant and agree that during the continuance of said lease, that they will pay the ground rent which shall accrue from time to time upon said lot. And it is herein further provided that at the termination of this lease, the said parties of the first part shall either lease said lot to the party of the second part or their assigns for another period of twenty years, subject to all the terms and conditions of this lease, or shall have the right to purchase of the said party of the second part, their heirs and assigns, the building aforesaid, as follows: If the parties are not able to agree upon the value of said building, then each of them shall appoint one appraiser to assess and value said property, and should said appraisers be unable to agree, then they the appraisers shall have the power to call in a third party as umpire, and the decisions of said appraisers shall be conclusive among the parties."
The plea then goes on to recite that on the 21st of January, 1875, Spedden V. Wilson assigned all his interest under the lease to James W. Holland, and a full copy of that assignment is given; that on June 13th, 1882, James W. Holland assigned to Charles G. Feldmeyer all his interest in the lot so acquired from Wilson, and a copy of that assignment is inserted in full; that on January 23rd, 1890, Charles H. Hopkins assigned all of his interest under the lease to Charles G. Feldmeyer, and that assignment is also fully set out.
The plea further recites that when the original term of twenty years expired, the lessors and their successors did not exercise the option to purchase, already mentioned in the original lease, made no offer to appoint appraisers for a valuation of the property, and gave no legal and sufficient notice to vacate; that the improvements erected by the defendants cost in the neighborhood of $3,000, and concludes, that to permit the plaintiff to recover in the action would allow him to escape the payment of the cost of improvements in accordance with the stipulations of the lease.
The facts set up by this equitable plea have thus been somewhat fully recited for the reason that this plea is almost identical with a plea filed on equitable grounds in the case of Carpenter
v. Wilson,
The demurrer to the third plea was also sustained, and properly so. That plea was as follows: "And for a third plea, the said defendant says: that he is holding and in possession of said property in the declaration mentioned under the provisions of the original lease set out in the equitable plea and that said lease is still in force and effect."
This plea involved a conclusion of law, rather than embodying a statement of fact, and as to the nature of the then holding of the premises by the defendant, the question was one to be raised by appropriately framed prayers, not by alleging legal conclusions by way of plea. Code 1904, Art. 75, sect. 2, 1 Poeon Pleading and Practice, sect. 549; Aetna Indemnity Co. v.Fuller,
The fifth plea, as already said, was a plea of resadjudicata, yet for some reason which does not appear in the record, the Court declined to receive such plea by the granting of the motion ne recipiatur. If, as matter of fact, there had been prior litigation between the same parties involving the same subject-matter, carried to a point of final determination upon the merits, there was no reason why the defendant should not be permitted to show that fact. Whether it is necessary to specially plead it, or whether evidence of such prior adjudication can be given under a general issue plea, may be open to considerable question, but Mr. Poe, in his valuable work on Pleading, sects. 655 and 656, lays it down as better practice to plead a defense of this character specially. *291 If the defendant failed to establish the matter thus pleaded by proof, it could not avail him; while, on the other Land, if he could so establish it, he was entitled to have the pleadings so framed as to permit him to offer the evidence. It was therefore error on the part of the trial Court to grant the motion of nerecipiatur.
The first bill of exceptions in this case relates to evidence. The plaintiff, Robert L. Werntz, was under examination, and he was asked as to the rental value of the property in question; to which objection was made, but the objection was overruled and the witness permitted to answer. The declaration in this case was for the restitution of the premises, and for $1,200 damages; the lease upon which the defendant relied named no rental whatever; if the plaintiff, upon a proper construction of the terms of the agreement, was entitled to the restitution of the premises, he was likewise entitled to recover damages, and one element of those damages would consist in the rentals of the property of which he had been deprived. It was, therefore, proper upon his theory of the case, that he should be thus permitted to testify as to the rentals value as bearing upon the question of damages.
The second exception was to the ruling of the Court, excluding from consideration the record of a prior litigation between the same parties, in regard to the same subject-matter and which had been terminated by a verdict for the defendant. This was a natural consequence from the granting of the motion of nerecipiatur as to the defendant's fifth plea. In order to determine fully whether the exclusion of this record was or was not correct, it becomes necessary to examine the proceedings in the two cases with some degree of particularity. The present plaintiff acquired his title to the property in the month of March, 1907, and on the 26th of that month, in a letter addressed to the defendant, made a demand for the rent of the premises; no rent having been received, and liability for rent having been denied, Mr. Werntz instituted a suit in ejectment in the Circuit *292
Court for Anne Arundel County to the April Term, 1908; to this the defendant filed various pleas, the second of which was a plea upon equitable grounds, almost identical with the plea upon equitable grounds filed in the present case; the first and fourth pleas were identical, and there were two additional pleas, to which a demurrer was sustained, and which it is therefore not necessary to consider. The property described in the declaration in this suit, was a lot 20 by 90 feet, known as No. 48 Maryland avenue, and was testified on cross-examination by Mr. Werntz to be the identical property for which the present suit was brought. The parties to the record in that case were the same as in the present proceeding, and the case was terminated by a verdict of the jury before which it was tried, in favor of the defendant, under instructions of the Court. What is necessary for a valid defense by way of res adjudicata is succinctly stated inJohnson v. Stockham,
The appellee, upon this branch of the case, places reliance upon the case of Wisconsin v. Torinus,
This leads to a consideration of the third exception which was reserved by the defendant to the ruling of the Court on the prayers in the case.
The first prayer of the defendant sought to take the case from the jury upon the ground that the plaintiff had offered no evidence legally sufficient to entitle him to recover under the pleadings, and the second and third prayers of the defendant were predicated on the defendant's theory of the lease that there had been an implied renewal for a twenty year term. All three of these prayers were refused by the trial Court. One of the stipulations of that lease was: "That at the termination of this lease the said parties of the first part shall either lease said lot to the party of the second part or their assigns for another period of twenty years subject to all the terms and conditions of this lease, or shall have the right to purchase of the said parties of the second part, their heirs and assigns, the building aforesaid, as follows:" It is a concessum in the case that when the original twenty year term expired in 1895 nothing whatever was done either by way of executing a renewal lease, or a purchase of the property. The general rule in such cases is laid down in 24 Cyc. 993 (c), that "where a lessor covenants for a renewal or to pay for the improvements, the option rests with him to do one thing or the other. The lessee cannot compel a renewal and if the landlord elects to renew, the tenant cannot require payment for improvements." And the same general rule is contained in 18 Am. Eng. Ency. 199, where it is said, "that the new periodical tenancy created by holding over is presumed to be upon the same terms as the preceding tenancy." And such was the holding in McBrier v. Marshall, 126 Pa. St. 390, where a tenant under a lease for five years held over after the expiration of the term, and was thereby construed to have renewed the lease for another period of five years. The rule in England is apparently clear, that "if there be a lease for a year and by consent of *295
both parties the tenant continues in possession afterwards, the law implies a tacit renovation of the contract. They are supposed to have renewed the old agreement." Right v. Darby, 1 Term Rep. 159; Dougal v. McCarthy (1893), L.R. 1 Q.B. Div. 739. In this country there is some apparent conflict of decision, attributable in the main to the special phraseology of the lease in the particular case. For example the case of Hall v.Myers,
It also follows from what has been said, that the first prayer of the defendant should have been granted.
For the errors in sustaining the demurrer to the equitable plea, the granting of the motion of ne recipiatur and exclusion of the evidence tending to support the plea of res adjudicata, and the refusal of the first prayer of the defendant, the judgment below must be reversed.
Judgment reversed without awarding a new trial, the appelleeto pay the costs above and below. *297