81 Md. 621 | Md. | 1895
delivered the opinion of the Court.
This is an action of ejectment brought by the Comptroller of Baltimore, as trustee for the city, against the defendant, the tenant in possession of the Imperial Hotel property in said city. Issues were joined on the plea of not guilty, and the verdict and judgment being for the plaintiff, the defendant has appealed. The facts are, that the defendant and one Charles C. Duffy, as partners, leased from Charles J. Bonaparte the premises in question, on the 28th of March, 1892, for a term of five years, beginning May 1st, 1892, at a rental of $800 per month (which was subsequently in
Referring to the deed from Bonaparte to the defendant, we find that said property is conveyed, “with the right' of the said James R. Horner, trustee, to enforce all the covenants and provisions of said lease, as fully and in the same manner as said Bonaparte could enforce the same, in the event of any future default upon the part of the said Shanfelter or any one claiming under him;” and further, that said property is conveyed “in trust, that said Horner shall hold said property hereby intended to be conveyed, and collect all the rents, income and revenues to be derived therefrom, when the same shall mature and accrue, for the sole and separate use of the Mayor and City Council of Baltimore, &c.”
We find no error in' the proposition of law submitted by the appellant for the instruction of the jury, and granted by the Court, which, together with the prayer of the appellees refused by the Court, constitute the third bill of exceptions. This prayer of the appellant presents the chief contention in this appeal. It is as follows : “ The defendant prays the Court to instruct the jury that the plaintiff is not entitled to recover, unless they find that the plaintiff demanded payment of the precise sum due on the most notorious part of the demised premises at a convenient time before sunset on the day it was due, and that of these facts there is no evidence.” If this prayer correctly states the rule of law which ought to obtain in this State in the forfeiture of a lease for the nonpayment of rent, it is quite clear that it has not been followed
Coming now to the case of Cooke v. Brice, 20 Md. 397, we think it strongly supports the case of the appellee.
There yet remains for out consideration the question as to the plaintiff’s right to maintain the action in the manner in which it has been brought. It is contended that the character of a party, whether acting indirectly or in a representative capacity, must appear. If in the progress of the case in the Court below it had appeared that the plaintiff had no interest therein authorizing him to maintain the, .action, it would have been then and there an easy matter to have availed of his lack of authority to sue. But instead of seeking to take action on the question, the defendant allowed the plaintiff to prove without objection by the very terms of the deed from Bonaparte to the plaintiff that he held the property in trust for the Mayor and City Council of Baltimore, &c. We think it clearly appears from the evidence that the appellee, as trustee, held such an interest in the property as authorized him to maintain this action. Finding no error in the rulings of the Court below, we affirm its judgment.
Judgment affirmed with costs.