Wahl v. Barroll

8 Gill 288 | Md. | 1849

Dorsey, O. J.,

delivered the opinion of this court.

On the 17th of April, 1833, Micajah Merryman, Jr., by indenture of lease in the usual form, demised a lot of ground therein described in the city of Baltimore, to J. Gross and J. J. Gross, for ninety-nine years, renewable forever, reserving a yearly rent of $75. Soon after, J. Gross assigned and conveyed all his interest in the demised premises to J. J. Gt'oss, his joint lessee. On the 12th of August 1841, J. J. Gross sub-leased about a moiety of the said lot to a certain John Ry-land, for the unexpired term of the original lease, save one year, reserving to the sub-lessor, his executors, administrators and assigns, the yearly rent of $37.50, who covenanted, that upon the payment thereof, &c., the sub-lessee should hold the sub-demised premises free and clear of any other or greater-rent. And on the day last mentioned, J. J. Gross assigned the ground-rent issuing out of the sub-demised premises, and his reversionary interest therein, to one Daniel B. Banks. John Ryland having died intestate, D. B. Banks, his administrator, assigned all the decedent’s interest in the sub-lease to the present complainant; and sometime afterwards, to wit, on the 21st of September, 1843, assigned to him also, with the said last mentioned ground-rent, the reversionary interest under the original lease, which D. B. Banks had in the subleased lot. On the 29th of September, 1843, J. J. Gross assigned to Benjamin C. Barroll, in the usual form, all the residue of the lot leased to him by Merryman, not included in the sub-lease to Ryland, subject to the payment of the ground-rent in the original lease. J. J. Gross having become insolvent, B. C. Barroll, on the 13th of January, 1845, assigned all his interest in the premises to Nicholas Carroll Spence, the other defendant. The complainant, since the acquisition of his title as aforesaid, having been compelled, since the acquisition of title, as above mentioned by B. C. Barroll, to pay a portion of the rent reserved in the original lease from Merry-man, and to make a like payment, since the assignment from Barroll to Spence, filed in the chancery court the bill before us, against the defendants, Barroll and Spence, to coerce them to reimburse him the amounts by him paid as aforesaid to said Merryman, and to obtain “an indemnification from the lot of ground assigned, as aforesaid, to the said Nicholas Carroll Spence, against all responsibility for the whole of the said yearly rent of $75, and to have the said yearly rent, paid out of the said lot of ground so owned by the said Nicholas Carroll Spence, and to have the portion thereof owned and possessed by the said Nicholas Carroll Spence, charged with the whole of said yearly rent.” Micajah Merryman not having been made a party to these proceedings, it is apparent that the complainant seeks not to impair or change his rights, to collect his rent from any part of the lot by him originally leased to Gross and J. J. Gross.

To show his claim to the relief sought, the complainant insists, that the covenant of J. J. Gross, in the sub-lease made to Hyland, that he should hold the lot thereby demised, free and clear of any other or greater rent than that reserved therein, was a covenant running with the land, which bound the residue of the entire lot leased by Merryman to Gross, and charged it with the whole rent of $75, reserved to Merryman; and exempted the lot sub-leased to Hyland from liability for the payment of any part thereof. For such a principle no authority has been referred to, which gives to it the slightest support. And the reverse is satisfactorily shown by the case of Cook vs. the Earl of Arundel, et alios, reported in ITardress, 87. Whore it was held, that if a party holding lands charged with a ground-rent, grant part of those lands, and covenant that the lands granted should be discharged of the rent, it is not a real covenant which runneth with the land, and chargeth the land not granted with the whole rent: the court being “clear of opinion, that it was no more than an ordinary and personal covenant, which must charge the heir only in respect of assets, and not otherwise, and thereupon the bill was dismissed.” Which bill was filed to charge the land not granted with the entire rent.

Although the covenant to Ryland, as to exemption from any other or greater rent than that reserved in the sub-lease, did not run with or bind the residue of the lot not sub-demised to Ryland, in respect to which it was regarded as a mere personal covenant; yet it did run with, and bind the reversionary interest of Gross in the sub-leased lot, and as against Gross and his assignees of such reversion, Ryland and his assignees would have had their remedy, if charged with any other or greater rent than that specified in the sub-lease. But unfortunately for the plaintiff, he has himself become the assignee of the reversionary title of the lot sub-leased to Ryland, which sub-lease he held under assignment, and thereby, by operation of law, as far as the rights of the plaintiff are concerned, the sub-lease and all the covenants therein contained are merged and extinguished, and he holds the sub-leased lot in the same manner, and upon the same terms and conditions as if no such sub-lease had ever been made, and he had acquired title to the lot, and the unexpired term therein, as specified in the original lease, under regular assignments from Gross, the original lessee, and those claiming under him. Sufficient authorities for this are found in Webb vs. Russell, 3 T. R., 393, and Hughes vs. Robotham, ex'cr of J. S., 1 Cro. Eliz., 303.

The plaintiff appears to regard the assignment of D. B. Banks and J. J. Gross to Benjamin C. Barroll, stating, that the lot assigned was to be held subject to the originally reserved ground-rent, &c., as demonstrating that the lot thus assigned, which passed but about a moiety of the lot originally leased by Merryman to Gross, should pay the whole ground rent reserved on the entire lot, and that the sub-leased part of the lot should pay no portion thereof. This construction of the contract of the parties cannot be sustained. Had those words, “subject to the originally reserved ground-rent,” been wholly omitted in the deed of assignment, the assignee’s obligation to pay the rent, stated in the original lease, would have been the same, with or without their insertion. When thus used, they are not intended as terms of compact, creating a new obligation, having no existence without them, but as merely descriptive of the existing condition of the property, designed by the assignment to be transferred to the assignee. And this view of the subject is fully sustained by the case of Wolveridge vs. Steward, 30 Eng. C. L. R., 312: where A, by indenture, executed by himself and B, assigned to B certain premises, “subject to payment of the rent, and performance of the covenants and agreements, reserved and contained in the original lease.” B entered under this assignment, and afterwards assigned over to a third person. Held, that B was not liable in- covenant to A for rent, which the latter had been called upon to pay in consequence of the default of B’s assignee, “the words subject to the payment of rent, &c., being words of qualification, &c., not of contract.” In the language of Lord Tenter den, referred to in the above case, as used in Mills vs. Harris, Michælmas term, 1820, “Those words were not of agreement, but were merely descriptive of the obligations to which the assignee would be liable, as between him and the lessor.”'

The decree of the chancellor dismissing the complainant’s bill of complaint is affirmed, with costs, as well in this court as in the court of chancery.

decree affirmed, with costs.