94 A. 780 | Md. | 1915
The question presented by the record in this case is the right of the appellees to the specific performance of an agreement for renewal, contained in a lease from the predecessor in title of the present appellant, to the appellees, eleven in *215 number. The paper out of which the controversy arises is as follows:
"Baltimore, Md., April 30th, 1908.
"This Lease, Made this 30th day of April, one thousand nine hundred and eight, by Louis Sinsheimer, of Baltimore City, as party of the first part, and Ernest Kaiser, Henry Harman, William Kerner, Louis Hugel, Henry Hugel, Thomas Little, William Hugel, John Walz, John Eigner and William Pfaffenberger, trading as the Prospect Point Fishing Club, as parties of the second part.
"Now, whereas, in consideration of the payment of the annual rent of fifty dollars payable by the parties of the second part to Louis Sinsheimer, quarterly in advance, beginning on the first day of May, 1908, the said Louis Sinsheimer does hereby lease for a period of five years renewable for an additional period of twenty years at Sixty Dollars per year, unto the said Ernest Kaiser, Henry Harman, William Kerner, Louis Hugul, Henry Hugul, Thomas Little, Wm. Hugel, John Walze, John Eigner and Wm. Pfaffenberger, trading as Prospect Point Fishing Club, all that tract or parcel of land lying in Baltimore County, and described as follows:
"Viz: Beginning for the same at a stone placed at a pine tree at a head of a small cove emptying into Dark Head and running northeasterly alongside said cove ninety feet to a pine tree marked "S.E."; thence southeasterly along said cove one hundred and thirty-six feet to a stone alongside of a tree on the bank of Dark Head; thence running southwesterly along Dark Head two hundred and eighty feet to a stake in the bank on said Dark Head; thence running westerly two hundred feet to a stone; thence northeasterly by a straight line to the place of beginning.
"Being the same piece or parcel of ground which by lease dated the 30th day of April, 1903, was leased by the parties of the second part, viz: Ernest Kaiser, Henry Harman, Wm. Kerner, Jouis Hugel, Henry *216 Hugel, Thomas Little, Wm. Hugel, John Walz, John Eigner and Wm. Pfaffenberger, trading as the Prospect Point Fishing Club.
"The parties of the second part do further agree that they will not conduct upon said premises any saloon, hotel or bawdy house, and will not interfere with other tenants on said premises.
"It is also further agreed that if the said rent shall be in arrears thirty days, then the said Louis Sinsheimer shall have the right to distrain for the same.
"It is also further agreed that the said parties of the second part shall not assign this lease without the written consent of said Louis Sinsheimer, nor sublet a portion of said ground leased.
"It is further agreed that the improvements placed by the parties of the second part shall be removable by them at the expiration of their term.
"Witness our hands and seals this thirtieth day of April, one thousand nine hundred and eight.
"Jno. E. Eigner.
"Louis Sinsheimer, "Wm. Pfaffenberger, "Ernest Kaiser, "Geo. W. Kerner, "Henry Harman, "Louis Hugel, "Henry Hugel, "William Hugel, "John Walz, Jr., "Thomas M. Little."
The appellees had originally entered upon the property referred to in the lease in April, 1903, five years before the signing the paper just quoted. Sinsheimer, who is named as lessor in the paper, in April, 1909, conveyed a tract of fifty-three acres, including that leased to and occupied by the appellees, to the present appellant. The lease was, therefore, in force and the appellees in occupancy of the property at the time of the transfer from Sinsheimer to King. *217 The five-year period named in the lease having expired, the appellees filed a bill to require King to carry out the agreement embodied in the following language contained in the lease: "The said Louis Sinsheimer does hereby lease for a period of five years renewable for an additional period of twenty years at sixty dollars per year * * * all that tract or parcel of land, etc." Mr. King seeks to avoid the execution of a renewal lease for a period of twenty years, and various grounds are set up to sustain his contention.
To maintain a bill for specific performance it is requisite, and conceded, that the agreement which the Court is asked to require to be performed must be fair, just, reasonable, bonafide, certain in all its parts, and made upon a good and valuable consideration. Griffith v. Frederick Co. Bank, 6 G. J. 424, and numerous cases since. While a decree for specific performance is never ex debito justitice, the rules controlling a court of equity, where this nature of relief is asked, have been so often and so clearly stated that it is unnecessary now to repeat them.
The first contention on behalf of the appellant is that the agreement is too uncertain in its character to admit of a decree for specific performance. Several grounds are urged as to the supposed indefiniteness of the agreement; thus, the fact that the property is in the State of Maryland nowhere appears in the agreement is given as a basis for the supposed indefiniteness, and the case of Ellis v. Park,
Objection is also made to the description as contained in the lease. While it may well be that the description could have been more precise, it can not be assumed, as the appellant does, that a surveyor could not go upon the ground and identify and mark it out definitely. Certain distinct landmarks are called for, and if any one of them should not be found it would be a comparatively easy matter to reverse the call from another, and so fully locate the premises. The case largely relied on in this contention is the case of Gorter v. Gale,
In the case of Duvall v. Myers, 2 Md. Ch. 401, which was a bill filed alleging a contract with regard to the cutting of wood, the paper set up as the contract was not signed by one of the parties, and the signature of the other was disputed, and the case did not present one in which there was any contract or agreement shown. In Geiger v. Green, 4 Gill, 472, there was no contract, merely a license for the digging of ore, and it was, therefore, properly held not to present a case for the specific performance of a contract.
In Gelston v. Sigmund,
The argument further is, that the appellees were not entitled to the relief which they sought by their bill, because of a lack of mutuality in the contract. Just what is meant by the term "mutuality" in a case of this character is nowhere better expressed than in Spear v. Orendorf,
It has been strongly urged upon the Court, that the original lease having been for five years, with an agreement of *220
renewal for twenty years, operates as an extension of the original term to a term of twenty-five years, and that, therefore, since the lease was not sealed, witnessed or acknowledged, that it did not comply with section 1 of Article 21 of the Code. There can be no question that the paper called a lease was not executed in the form prescribed by statute to be valid, as a conveyance or transfer of an interest in land, for any period above seven years. The question in this case is, whether the provision mentioned in the agreement is to be regarded as an extension of the term, or an option for another term, or an agreement to lease at a subsequent time for a twenty-year term. The cases construing the proper meaning to be ascribed to the term "renewal" or "renewable" are by no means uniform. Something of a collection of them will be found in 7thWords and Phrases, page 6086, and 4th Words and Phrases, 2nd Series, pages 268 and 269. A careful examination of the cases there cited tends to the conclusion that the construction to be given to the words "renewal" and "renewable" is controlled by the intention of the parties at the time when the paper is executed. Under the facts of this case, where the term, under the "renewal," was to be different from that provided in the original lease and attended by different legal consequences, and at a different rent, it would seem clear that what was contemplated was not an extension of the lease of 1908, but the giving of a new lease. See Kollock v. Scribner,
Some reliance also appears to have been placed upon the decision of this Court in Stewart v. Gorter,
If the provisions contained in this lease be regarded merely in the light of an option, it is none the less enforceable. SeeBrantly on Contracts (2nd Ed.), sec. 146 and page 333; Smith
v. Bangham, 28 L.R. A (N.S.) 523 and note; Thistle Mills v.Bone,
The evidence shows without contradiction that the increased amount of the rent was duly tendered to Mr. King when it fell due in 1913, and again tendered to him six months later, upon both of which occasions it was refused, and there is nothing in the record upon which an argument can be fairly based of laches upon the part of the appellees such as to disentitle them from the relief sought. See Banks v. Haskie,
The decree appealed from will, therefore, be affirmed, except in one particular. By that decree it was provided: "And it is further adjudged, ordered and decreed that the said lease shall be executed in duplicate and that one of said duplicates shall be delivered to the lessor and lessees, respectively, upon the payment by the lessees to the lessor of all arrears of rent from May 1st, 1913, to the date of said delivery." There was no provision in the original agreement for any execution in duplicate; a lease for twenty years to be valid must, under section 1 of Article 21, be executed with certain formalities, and duly recorded, and that is all that the appellees in this case had the right to demand. This clause of the decree should, therefore, be modified by striking out the requirement of its execution in duplicate, and the delivery of a duplicate copy to each of the parties hereto.
There was one argument which was strenuously pressed as a reason for the refusal to award a decree for specific performance, namely, that under a lease for twenty years the appellees would by virtue of the Act of 1900, be entitled at any time after the expiration of five years, to redeem the property by the payment of the value of the rent, capitalized on a basis of 6%. This argument, however, is without force. The Act of 1900 was in full operation and had been for a number of years at the time when the agreement now involved was made, and it must be presumed that the agreement was made in full contemplation of this Act. Moreover, the increased amount of rental to be paid may well have been fixed because of the fact that the lessee under a lease for twenty years would be entitled to such right.
For the reasons given the decree of the Circuit Court of Baltimore City will be affirmed in part and reversed in part, and the case remanded in order that a decree may be entered in accordance with this opinion, costs to be paid by the appellant.
Affirmed in part and reversed in part, and cause remanded;costs to be paid by the appellant. *223