Allen v. Lambden , 2 Md. 279 ( 1852 )

Tuck, J,

delivered the opinion of the court.

The appellee sued the appellant in covenant on the following instrument, which, it is admitted, was signed and sealed by Benjamin and Allen, and which, it is also admitted, was not stamped. It does not appear to have been executed by the appellee:

“Memorandum of articles of agreement entered into this eighth day of October, eighteen hundred and forty-eight, between Ann Lambden, of the city of Annapolis, State of Maryland, of the one part, and John L. Benjamin, of Anne Arundel county, of the other part: The said Ann Lambden

hereby agrees to rent to John L. Benjamin, the tavern house in the city of Annapolis, known as the Western Hotel, also the private dwelling and kitchen attached to the tavern, also the garden and yard, with the privilege of using the water from the pump standing in the yard, occupied by Mr. Edward Duvall, for one year, for the sum of two hundred and fifty dollars, said John L. Benjamin agreeing to give a security for the payment of the rent, and to pay the rent as follows: one-fourth of the rent every three months, the year commencing on the eighteenth day of October, and ending with the seventeenth day of October 1849; this article' also witnesseth, that James W. Allen agrees to be John L. Benjamin’s surety for the payment of the rent, according to the above stipulation, as -witness the hands and seals of the parties hereunto set, this eighteenth day of October, eighteen hundred and forty-eight. John L. Benjamin, ( Seal.)

James W. Allen, ( Seal.)”

The only question for our consideration is, whether this paper was admissible in evidence?

It is insisted on the part of the appellant, that this cause of action is a bond or obligation for the payment of money, and required to be stamped by the acts of 1844, ch. 280, and 1845, ch. 193. On the part of the appellee, however, it is contended, that this is a lease reserving rent and not necessary to be stamped, upon the authority of the case oí Burton, et al., vs. State, 3 Gill, 1.

Whatever may be thought of this instrument, as between the appellee and Benjamin, we do not consider it a lease as between her and the appellant. A lease imports a contract between lessor and lessee for the possession and profits of lands, &c., on the one side, and a recompense by rent or other consideration, on the other. 5 Bac. Abr. Lease, 433, 601, K., Ed. 1844. Arclib. Landlord and Tenant, 53 Law Lib., 1, 45. Conceding that the appellee can be considered a lessor by operation of this agreement, the appellant is certainly not her lessee. If there be any covenant on the part of the appellee, as between herself and Allen, it is that Benjamin shall have and enjoy these premises. In Bacon’s Abr., 602, Lease K, it is said, “If A covenants by articles with B, that he shall have and enjoy such land for such a time, this is a good and effectual present lease, because here are sufficient words to prove a contract, that the one shall relinquish the possession, and the other comes into it. But if the covenant had been with B, that C, a third person, should have or enjoy such land of A for such a time, or that the executors of B should have or enjoy them for such a time, this would be no lease to C or to the executors of B, but only a bare covenant with B.” Moreover, this is not an agreement between the appellee and Allen. It professes to be between her and Benjamin. Allen’s undertaking is altogether separate and distinct from any idea of his being the lessee, or of the appellee’s being his lessor. It is plain that he became surety only for the payment of the rent, according to the agreement between the other parties. We cannot ascribe to it, as far as Allen is concerned, any character but that of an obligation or agreement under seal, for the payment of money. Covenants are not, in terms, mentioned in the act of 1844, yet the Court of Appeals, under the other words of that act, considered that mortgages containing covenants to pay the debt, were within the act, though such instruments without covenants were not.

The counsel for the appellee suggests, that this case is within the principle of the decision in 3 Gill, 1, because the relation of landlord and tenant existed as between the appellee and Benjamin. We do not think that this fact relieves the case from the objection urged by the appellant. It would be unreasonable to say, that this instrument is a lease within the meaning of that decision, as between the parties to this suit, when there is no covenant or agreement which the appellant can enforce against the appellee. It is a mere security for the payment of the rent, as distinct from the lease and cannot be relieved from the payment of the stamp duty.

This court, in the case of Berry vs. Holmed, June 1850, decided that the affidavit allowed to be made by the 8th sec. of the act of 1844, ch. 280, maybe taken at any time before the trial, we shall therefore order a procedendo.

Judgment reversed and procedendo ordered.