Gibbs v. Gale , 7 Md. 76 ( 1854 )

Le Grand, C. J.,

delivered the opinion of this court.

The bill in this case stales, substantially, that a certain George B. Stewart being seized in fee of a large tract of land lying on West River, leased five acres of it to the firm of Crouch and Randall, to be used as a landing for steamboats and other vessels, and for the transaction of commercial business; .that besides paying a large rent, the lessees covenanted therein to make improvements, and that the lessor covenanted on his part, during the continuance of the lease, not to rent any other landing on his tract of land as a steamboat landing; that the lease was to continue five years, renewable every five years, for the period of twenty-five years; that since the lease, Stewart sold the whole tract of land in fee to the appellee, Gale, including the reversion of the part leased to Crouch and Randall. The bill then states that Gale had knowledge of the demise to Crouch and Randall, but regardless of the covenants contained in the lease, has built a wharf on this land, immediately adjoining this leasehold, and rented it to tbe appellee, Stranberg, as a public landing for the steamboat Champion, and avows his determination to do so. The bill prays an injunction to restrain the appellee, Gale, from renting any part of his tract of land to be used as a steamboat landing, and to restrain Stranberg from using any part of it as such.

The appellant is the assignee of Crouch and Randall.

To the bill, Gale, in his answer, replied, that the covenant contained in the lease from his grantor, Stewart, was, and in fact was intended to be, nothing more that a personal covenant, binding only Stewart and not his assigns.

After the coming in of the testimony which had been ordered to be taken, tbe court dissolved the injunction that had been granted on the filing of the bill. It is from this order of dissolution the appeal has been taken.

The covenant in the lease which gave rise to this controversy is as follows: “The said George B. Stewart on his part promises and agrees, that he will not rent or lease any other landing on his said tract of land as a public landing to any steamboat company whatsoever.”

It was to the true interpretation and legal meaning of (his covenant, the respective counsel of the parties addressed their ability and learning. On the part of the complainant it was contended:—1st, that it is a covenant running with the whole tract of land possessed by Stewart, of which the demised premises are a part, and as such binding on his assigns; and 2nd, that if the covenant be not of such character, still it would he a fraud, of winch a court of equity would take cognizance, to allow the appellee, Gale, to build, or to authorise to be built, another steamboat wharf on the tract, he having become the owner of the whole tract, including the demised premises, with full knowledge of the equities existing between Stewart and his original lessees and their assignees.

These propositions were denied by the appellees.

In the view we have of the effect of the evidence, it is not important we should indicate what would be our opinion of the character of the contract,per se, between the parties, and the obligations which it legally and equitably devolved on them.

The testimony in the cause was introduced on the part of the defendant without exception to its admissibility or competency, and this brings us to the inquiry as to its effect on the interpretation which we are to place on the contract in this case, because of the provisions of the act of 1832, chapter 302.

It is not essential that we should review all the evidence, and we shall therefore confine ourselves to that part of it which bears directly on the question of the interpretation of the covenant. Thomas M. Grouch, one of the original lessees, testifies, '' that a paper shown to him was intended for the lease, 'but not executed for certain reasons;’ that one of the principal reasons will show itself on the bottom of the paper. He required Stewart to put a covenant in it binding himself \ his heirs and assigns, to give himself and his partner the exclusive steamboat privilege for the whole land during the term of the lease. That was the reason why it was not executed. Stewart afterwards agreed to insert the said covenant for himself, provided deponent would give a bond for the keeping in order of the road from the Quaker burying-ground to the landing, which deponent, thinks is in the deed as executed. Stewart stated as a reason why he would not do so, was, that in case he should sell his property, which he then had no intention of doing, it would depreciate this property and be considered as an incumbrance.'”

George B. Stewart, testifies, that he had seen the paper, (the original draft of the lease, and referred to in the testimony of Crouch,) and that it “was submitted to witness by Mr. Crouch. Witness had several objections to it, which the paper shows. The object was to lease the property now in controversy. Does not remember the objections, but the other lease which was recorded was taken from the draft now shown him:—a copy with alterations, the objectionable features of the draft being removed from the copy.” On reference to the copy of this original draft, and on comparison of it with the lease actually executed, it will be seen that the words “heirs and assigns” were erased, and the lease executed without them.

From these circumstances it is clear, that the original lessor refused to bind his heirs or assigns, and communicated a knowledge of this indisposition to one of his lessees, and that the agreement was, that the obligation should only be personal in its character and in nowise binding his heirs or assigns.

But it is said that these facts can have no influence in the decision of this cause, because to allow them any would be to violate a well established principle of the law of evidence, which prohibits the introduction of parol evidence to contradict or vary a written instrument. There is no difference of opinion as to the principle; but the question here is, whether the act of 1832, chapter 302, in the absence of objection made in the court below, does not, in t he particular case, modify and control it? The fifth section of that act provides: “That hereafter, in all causes in the court of chancery or any county court, as a court of equity, all objection to the competency of witnesses and the admissibility of evidence, and to the sufficiency of the averments of the bill or petition, shall be made by exceptions filed in the cause, and no point relating to the competency of witnesses or the admissibility of evidence, or sufficiency of the averments of the bill or petition, shall be raised in such causes in the Court of Appeals, or noticed or determined, or acted upon by the Court of Appeals, unless it shall plainly appear in the record, that such point had been raised by exceptions, as aforesaid, in said court of chancery or county court,” &c.

The language of the act is very full and explicit. It is, that “all objections” to “the admissibility of evidence” shall be made m the court below; and further, that “no point” relating (o the admissibility of evidence “shall ba raised” in the Court of Appeals, or “noticed or determined or acted upon by the Court of Appeals.”

An objection to the admissibility of evidence in any cause can only be properly founded on the hypothesis, that such testimony violates the law of evidence in this, that the law prohibits the proof in the manner proposed of the particular fact, or of its irrelevancy to the subject matter of inquiry. In the case now before us, it cannot be contended that the testimony was irrelevant to the subject of investigation, for it is to that, and to nothing else, it applies. The objection, therefore, must rest upon the principle, that it is incompetent, in the mode resorted to, to prove what the' evidence was adduced to establish. The only objection to the introduction of parol evidence in any case, is that which the law creates, and is no more binding than any other principle of law. Like any other rule of evidence, it is subject to the power of the legislature to abolish or modify it in every case, or to modify or annul it under particular circumstances. We think this has been done by the act of 1832, where the objection has not been taken-in the court below. It is not our province to determine the expediency of such legislation;' that is a matter confided to another and independent branch of the State government.

It was ingeniously argued by the counsel for the appellant, that although he could not in this court object to the admissibility of the evidence, nevertheless, he had the right to insist it should not be considered in the decision of the case. In this view we cannot concur. If the testimony be in the cause, it must be considered and allowed its full force, and this has been the uniform decision of the Court of Appeals under the act of 1S32. The cases of Cross vs. Cohen, 3 Gill, 269; Sindall and Wife vs. Campbell, 7 Gill, 76; Jones vs. Hardesty, 10 Gill & Johnson, 419; Trump vs. Baltzell, 3 Md. Rep., 304; Clagett & Hill, vs. Hall, 9 Gill & Johns., 91; Duncan vs. Maryland Savings Institution, 10 Gill & Johns., 299; are sufficient to establish this.

Holding, that by the testimony it is manifest the contract was as it is represented in the answer of the defendant, Gale, and thinking vve are bound under the act of 1832 to give it full effect, we accordingly affirm the action of the court below, without determining what would have been our opinion of the proper construction of the particular covenant, had it been submitted to our judgment free from the influence of the parol proof.

Order affirmed.