Anderson v. Critcher ( 1841 )

Dorsey, J.,

delivered the opinion of this court.

The declaration in the case before us contains three counts, to all of which the defendant demurred. To the first two counts the court ruled good the demurrer; and from such their decision no appeal has been prosecuted. The demurrer to the third count was overruled, and from the judgment of the county court overruling that demurrer, the present appeal has been prayed. We deem it unnecessary from the view we have taken of this case to determine, whether the agreement entered into by the parties be a lease, or a mere agreement for a lease, nor do we consider it necessary to decide on the sufficiency of many of the grounds of demurrer which have been discussed before us. There is nothing in the agreement from which it can be, with any degree of certainty, ascertained, whether the demised premises be in the State of Maryland, or where they are located. The appellants insist that they lie m Maryland, and that the instrument of writing on which the present action of covenant is founded, is for the term often years, determinable however within the term, at the will of the appellant, upon his giving notice to the appellee, on or before the month of June, otherwise the term will continue for another year. With this construction of the agreement we concur, and if it be conceded that the demised premises lie in Maryland, we think the court erred in overruling the demurrer. Because the agreement not being acknowledged and recorded agreeably to the registration laws of the State, it passed at law no title whatever in the demised premises to the appellant, and consequently the covenant for the payment of rent which is dependent on the appellant’s title, or interest in the demised premises created by the agreement, is wholly inoperative and void; and no such action of covenant can be maintained thereon, whether regarded as a lease or a covenant for a lease. If the appellant has under colour of this agreement, occupied the property intended to be demised, the appellee’s remedy for the rent is not in covenant; but if the occupation be without his assent, it is trespass quare clausum fregit; if with consent, an action for use and occupation, or an assumpsit upon an agreement from year to year of similar import with that ineffectually executed, and which the law implies as existing between the parties.

Should the demised premises not lie in Maryland, we think the demurrer ought to have been sustained; because the agreement declared on in the third count is not the agreement given on oyer, either according to its tenor, or true intent and meaning, as we interpret it.

The judgment of the county court is reversed, and procedendo awarded.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.