Howard v. Carpenter
22 Md. 10
Md.
1864
Check Treatment
BaRTOl, J.,

delivered the opinion of this Court.

•The Circuit Court for Baltimore County, from whose judgment, this appeal was taken, instructed the jury “that there being no evidence in the cause of any notice to the defendant to quit the premises in question, or of any demand or request that he should surrender the possession thereof, given or made prior to the institution of these proceedings, the plaintiff is not entitled to recover.” One of the points made by the appellant in the argument *23was, that the instruction was erroneous, in assuming that Carpenter was tenant, which was a question of fact that ought to have been submitted to the jury. In this view we do not concur, the facts stated in the bill of exceptions were all admitted in writing; and where lacts are so admitted it is unnecessary for the jury to pass upon them. It is exclusively within the province of the jury to find all inferences of fact, from facts stated, while the Court is precluded from so doing, and are confined to the facts stated. See Evans’ Practice, 316, 317, where the cases on this subject are collected, see also 17 Md. Rep., 402. But the legal consequences or conclusions from the facts so admitted are for the Court. In this case the question whether the relation of landlord and tenant existed between the parties, and whether the tenancy of Carpenter was such as to make a notice to quit, or a demand of possession requisite to entitle the appellant to maintain the action of ejectment, was a question of law to be determined by the Court upon the consideration of the facts agreed on in the written statement. This question is the only one now presented to us for decision. In the case, between these parties, before this Court at December Term 1857, (11 Md. Rep., 259,) some points were decided which go very far towards determining the present controversy. That was a bill filed by the appellee against the appellant and Lady Stafford, to enforce the execution of a lease for ninety-nine year’s of the premises in question, and also to restrain by injunction the prosecution of this action of ejectment. The same facts were proved in that case, as are here agreed on in the written statement; together with some other proof offered in support of the bill, not embraced in this bill of exceptions. Upon consideration of all the evidence in that cause, this Court refused to grant the relief prayed, dissolved the injunction and dismissed the bill; expressly deciding that the written order of Stimpson, under which the appellee went into possession, *24“was not of itself a lease for ninety-nine yars, nor an agreement for a lease for that term, which a Court of Equity could enforce, being defective, if for no other reason, in not showing what rent was to be paid/’ It was also then decided that the description of the land found in the partition case, as “in the tenancy of Carpenter for the term of ninety-nine years, &c.,” did not estop the appellant “from denying the title of Carpenter, who was not a party to the partition case.” A reference to the decision of this Court will show that the case was not considered as one of an imperfect execution of the power of leasing, by Mrs. Catón; but as a case of the non-execution of the power, and for that reason the aid of the Court was denied to the appellee.” The facts presented to the Court in this case are, as far as they go, identical with those contained in the Chancery cause above referred to, reported in 11 Md. Rep. Besides the recital of facts showing the appellant’s title in fee; they cpnsist simply of the fact that the appellee went into possession under Stimpson’s order of the 21st of May 1846, and the further fact, that after the death of Mrs. Catón, in a cause in Chancery wherein the Marchioness of Wellesley and others were complainants, and Emily McTavisli and others were defendants; but in which the appellee was not a party, the land in question was described as “in the tenancy of William H. Carpenter for the term of ninety-nine years, at an average rent of $219.83 yearly, and payable in the months of January and July.” The aj)pellee contends that this recital or description in the Chancery proceedings, amounts to an admission, by the parties under whom the appellant derived his title, that the appellant was in possession as tenant for the term of ninety-nine years, which is sufficient to defeat this action. Such, we think, is not its legal purport or effect. The fact admitted, is that in the Chancery proceedings the land was so described. Such a description cannot have the effect of a lease for that term, nor *25could it operate at all upon the rights of the parties in this suit, except by way of estoppel, and the decision in 11 th Maryland, has settled that point adversely to the position now assumed by the appellee. Without enlarging upon the question of estoppel, we refer to the decision of this Court in the case cited. In the opinion of this Court, the facts set out in the written statement before us, do not in law, constitute the appellee a tenant for the term ninety-nine years. But it is argued that the facts stated show the relation of landlord and tenant to exist between the parties, and that being lawfully tenant, the appellee was entitled to notice to quit, or demand of possession, before ejectment could be maintained against him. We have examined the authorities cited in support of this position, but consider most of them inapplicable to the state of facts before us : and where there is an apparent conflict in the decisions, we think the weight of authority is opposed to the position contended for by the appellee. Here there is no fact showing that Carpenter was recognized as tenant by the appellant, or those under whom he derived title; no rent was paid by him. The fact appears that he went into possession by the permission of Mrs. Caton’s agent, as evidenced by Stimpson’s order. His possession was permissive, not tortious in the begin-ing, and was continued under the expectation and with the purpose of acquiring a lease of the property for the term of ninety-nine years. No lease was ever executed, nor any definite contract for a lease entered into between the parties. This we think amounts to a tenancy at sufferance; and in such case, the weight of authority establishes the position contended for by the appellant, that no notice or demand of possession is necessary to enable the owner to maintain ejectment. Doe, ex. d. Knight vs. Quigley, 2 Camp., 505. Doe, dem. Stansway vs. Rock, 4 Man. & Gr., 30, (43 Eng. C. L. R., 25, 27.) Jackson vs. Chase, 2 Johns. R., 84. Decker vs. Adams, 7 Halst., 99, *26101. Simpkins vs. Ashurst, 1 Crompt. Mees. & Ros., 261. Doe, dem. Bourne vs. Burton, 6 Eng. L. & Eg. R., 825. Whiteside & McGee vs. Jackson, 1 Wend., 418. Jackson, ex dem. Shipley et al. vs. Moncrief, 5 Wend., 26. According to tbe principles' recognized and established by these authorities, we think the Circuit Court erred in their instruction to the jury, and we are further of opinion that upon the agreement of facts contained in the bill of exceptions the appellant was entitled to judgment. Under the provisions of the Act of 1826, it would be conrpetent for this Court to enter such judgment as ought to have been given by the Court below; but for reasons which will hereafter appear, we deem it proper to remand the case to the Circuit Court on■ procedendo, so that judgment may be there entered in conformity with this opinion. We are led to adopt this course, on account of the motion made in this (Court on hehalf of the appellants, to strike out the use entered hy Thomas S. Alexander and George W. Dobbin, Esquires, and upon which, in the present state of the record and of the evidence, this Court is unable to decide. In the sworn statements and answers of Messrs. Alexander and Dobbin filed in this Court, it is alleged that those gentlemen have in their possession evidence, in the form of letters from their client, Lady Stafford, showing her agreement and contract to give them twenty acres of the land in question, contingent upon their successful prosecution of the suit. After which it appears her Ladyship dismissed them from her service, and employed other couusel, which it was competent for her to do; but she could not thereby deprive them of the benefit of their contract: and if such contract he established to the satisfaction of the Court, they will he entitled to have it enforced, and their rights protected to the extent of their interest. Upon this question, however, we forbear to pass a judgment, leaving it for the determi*27nation of tbe Circuit Court, upon the testimony which may hereafter be produced in that Court.

Decided June 30th 1864.

Judgment reversed, and procedendo awarded.