Gelston v. Sigmund , 1867 Md. LEXIS 53 ( 1867 )

Bartol, J.,

delivered the opinion of this Court.

This is an appeal from an order of the Circuit Court of Baltimore City granting an injunction upon a bill filed by the appellee.

In the same Court a similar injunction had before been granted on a bill and amended bill filed by the same complainant against the appellant and one Wolf M. Meyenberg. The respondents in the former case, (ante) after filing their answers and giving bond, had taken their appeal to this Court, whereby the injunction was stayed and its operation was suspended pending the appeal. (Blondheim et al. vs. Moore, 11 Md. Rep., 365.)

When this bill was filed that appeal was pending and undecided. The object of this proceeding seems to have been to have the injunction reinstated, upon the alleged ground of newly discovered equity in the complainant, growing out of a disclosure made in the answers of the defendants in the former case, to the effect that before the summary proceedings under the Code had been instituted by Gelston against the complainant, to obtain possession of the property occupied by the complainant as his tenant, he, Gelston, had made a contract with Wolf M. Meyenberg leasing the same for two years from the first day of July, 1866. That fact, it is supposed, if it had been known to the appellee, would have furnished him with a goad legal defence under the 5th section of the 53d Article of the Code of Public General Laws, to the proceedings at law instituted by Gelston and pending in the Court of Common Pleas.

This idea is altogether erroneous, and proceeds from a misconstruction of the section of the Code above referred to.

If the appellee were tenant of Gelston for a term which ended ‘on the 30th day of June, 1866, it would be no answer or legal defence to a proceeding instituted by Gelston to obtain restitution of the possession of the premises, that he had made a contract of lease of the same to Meyenberg to commence on the 1st day of July, 1866. Under his contract Gelston would he bound to Meyenberg to give him possession of the premises, and would therefore be entitled to maintain his proceeding under the Code, to oust the tenant wrongfully holding over ; such a lease to commence after the termination of the appellee’s term was executory merely, and would furnish no legal ground for asserting that there was an outstanding, adversary title in Meyenberg, as against Gelston, such as is mentioned in the 5th section of the 53d Article of the Code. Any claim or right of Meyenberg under his lease is not adversary to Gelston, but under and through him, and the proceedings at law instituted by Gelston to obtain the possession, were in the interest and for the benefit of Meyenberg, and could not be defeated by the appellee, by invoking to his aid the title of Meyenberg.

In our opinion this bill does not present any equitable ground whatever, entitling the appellee to the injunction prayed.

The proceeding is somewhat anomalous; and considering what had been disclosed by the proceedings in the former case, we think the Circuit Court ought summarily to have dismissed this bill, as presenting substantially the same case made by the original and amended bills before exhibited by the appellee in the same Court.

The appeal in the former case of Gelston & Meyenberg vs. Sigmund has been decided at the present term. The opinion of this Court therein pronounced, declared that the complainant was not entitled to the relief prayed, and the injunction was erroneously granted. If the proceedings in the first case be considered as incorporated in, and forming a part of the present, which is the most favorable aspect in which it can bo viewed, for the appellee ; though we do not decide that it can with propriety be so treated, then the decision already pronounced in that, would be conclusive of this ; there being, as we have before said, no new ground of equity alleged by the present bill, entitling the complainant to relief. Treating this as an original bill, standing only .upon the averments contained in it, there is no ground of equity whatever alleged entitling the appellee to the discover)'' prayed, or to the injunction. The bill sets out no right or title of the complainant in the property in question, or any right of possession in him as tenant or otherwise. The alleged contract of lease from G-elstou to Meyenberg conferred no' right upon the complainant, either as ground of defence in the proceedings at law or otherwise. I-n any aspect, therefore, in which this bill may be considered, the appellee is not entitled to relief.

(Decided 28th June, 1867.)

The order granting the injunction must be dissolved ■and the bill dismissed.

Order reversed and bill dismissed.