166 A. 428 | Md. | 1933
The plaintiffs (appellees) are the tenants of the defendants Morris H. Wolf and Lena G. Wolf, his wife, and Benjamin Beck and Cecelia J. Beck, his wife (appellants), of the store room, now known as Nos. 5124 and 5126 Park Heights Avenue, in Baltimore, under a lease to the plaintiffs made April 8th, 1929, for ten years beginning December 1st, 1929, at the rental of $200 per month for the first five years, $225 per month for the next three years, and $250 per month the two last years. It was covenanted in the lease that the lessees would not use nor permit the use of the premises "for the purposes other than those of a lunch room and restaurant," and would "not handle on said premises canned goods for sale in original packages." The lessors on their part covenanted that they would not "at any time during the existence of this lease, rent any other property belonging to them in what is now known as the 5100 block of Park Heights Avenue (west side) for a lunch room and restaurant and * * * that the said lessors will not permit any tenant conducting a delicatessen store in the property belonging to them in said block to convert the same into a restaurant and/or lunch room as such." On June 6th, 1930, the defendants Morris H. Wolf and Benjamin Beck leased the store now known as 5112 Park Heights Avenue to Samuel Mazer and Annie Mazer, his wife, for the term of six years and two months beginning August 1st, 1930, at $100 per month, and it was stipulated in that lease that the lessees would not use nor permit the use of the premises "for the purpose other than those of a store *39 for the sale of delicatessen, including tobacco, soft drinks and confectionery," and it was therein further covenanted that they "may transfer this lease only for the same business as herein permitted," with the consent in writing of the lessors, and, on the 2nd day of September, 1930, with such consent, the lessees assigned the lease "without recourse * * * as to the terms and covenants" of the lease to Hyman Rubin and Elizabeth Rubin, his wife. Hyman Rubin died June 16th, 1931, and his wife has since conducted the business at 5112 Park Heights Avenue.
The plaintiffs, ever since they improved the premises leased by them, at a cost of $12,000, and installed fixtures and equipment at a cost of $18,000, in all, according to their testimony, $30,000, have been conducting a restaurant, as commonly understood, and there is no suggestion in the record to the contrary, but the complaint is that Mrs. Rubin has, in addition to the delicatessen business, embarked in the restaurant business, and that the lessors have permitted her to do it in violation of the covenant of the lessors with the plaintiffs, and of her covenant with the same lessors.
One of the landlords' contentions is that they should not have been included in the decree granting the plaintiffs injunctive relief, because the other tenant, Mrs. Rubin, is before the court and an effective remedy can be had against her. In the case ofSchmidt v. Hershey Dean,
Although there was no reference to it in the bill or answers, one of the plaintiffs, Andrews, testified that in February, 1932, he and his partner, John Leosatis, and his (Andrews') brother-in-law, formed a corporation under the name of "Pimlico Restaurant, Inc.," which was the sign on the window, the name under which the business theretofore conducted by them having been "Pimlico Restaurant," and that "around February" they assigned the lease to the corporation, and that after that time they paid the rent by the corporation's checks, which were accepted by Beck, who acted for the landlords and who "didn't say a word." The lessors' contention is that the bill should be dismissed because the evidence shows that the plaintiffs have parted with their interest in the lease to them from Wolf and Beck, and that, having no interest in the suit, they are not entitled to relief, and cite Bannon v. Comegys,
In the absence of any legally sufficient proof of an assignment in compliance with the requirements of the rules of evidence and the recording statutes, or other clear proof that the plaintiffs had no right to enforce or protect, the court must take the record as it is presented and decree accordingly. So, while the plaintiffs may not have a substantial interest in the lease, or may not be necessary or indispensable parties, which we do not here decide, are they proper parties and is the effect of the contention, if sound, to leave the suit without a plaintiff? The rule, in cases of assignment, as stated by Story's EquityPleading (10th Ed.), sec. 153, is: "In general, the person having the legal title to the subject-matter of the bill must be a party (either as plaintiff or defendant), although he has no beneficial interest therein; so that the legal right may be bound by the decree of the court. In cases, therefore, where an assignment does not pass the legal title, but only the equitable title to the property (as, for example, an assignment of a chose in action), it is usual, if it be not always indispensable, to make the assignor, holding the legal title, a party to the suit. `The true principle would seem to be' * * * `that, in all cases where the assignment is absolute and unconditional, leaving no equitable interest whatever in the assignor, and the extent and validity of the assignment is not doubted or denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the latter a party. At most, he is merely a nominal or formal party in such a case.'" SeeGrand United Order of Odd Fellows v. Merklin,
Under the recording acts of the state, Code, art. 21, sec. 1, no estate above seven years "shall pass or take effect unless the deed conveying the same shall be executed, acknowledge and recorded," and this provision has been held to apply with equal force to assignments of leases of more than seven years. Peterv. Schley's Lessee, 3 H. J. 211; Mayhew v. Hardesty,
Assuming that the assignment in this case was not executed and recorded as required by law, and we assume this, in the absence of proof, to be the fact, the plaintiffs, as lessees, can be sued at law by the lessors on the covenant to pay the rent (Consumers' Ice Co. v. Bixler,
The equitable assignee, the Pimlico Restaurant, Inc., was a proper, perhaps necessary, party plaintiff. Two of the three persons interested in the corporation are the record holders of the lease and testified in the case. If the suit had been against the record lessees as defendants, the decree would have bound the corporation to the same extent as though it had appeared and answered. This was expressly decided in Snavely v. Berman,
The object of the bill in this case is to restrain Mrs. Rubin from engaging in the same line of business as that of the Pimlico Restaurant, Inc., a corporation, which is not a party to the suit, and which, as such, cannot be given injunctive relief. Yet as it is represented in this case, and has actively participated in it, we see no reason why the questions at issue cannot be determined, the rights of the parties ascertained, and the controversy ended [notes to Story's Eq. Jur. (10th Ed.), sec. 154; Shartzer v. Mt. Lake Park Assn.,
It was provided by the decree in this case that the defendants be enjoined, during the term of the lease to the plaintiffs, "from selling upon the premises, 5112 Park Heights Avenue, and from offering by signs or other advertising methods, to furnish or sell meals on said premises, or the conducting of or knowingly permitting the conduct or operation of a restaurant or lunch room for the preparation or service of meals upon said premises, by whatever name such restaurant or lunch room may be called. (It being understood that this decree is not to be interpreted as preventing the defendants to sell and dispense at said premises hot coffee and cold sandwiches and beverages and articles of delicatessen variety (in which tobacco and confectionery are included)," which we agree conforms to the evidence given as to the character of business conducted by Mrs. Rubin before she added the lunchroom or restaurant business of which complaint has been made. The decree, therefore, will be affirmed.
Decree affirmed, with costs. *45