Blain v. Everitt , 1872 Md. LEXIS 64 ( 1872 )

Miller, J.,

delivered the opinion of the Court.

This appeal is from an order granting an injunction and appointing a receiver.

The bill and exhibits show that the complainants having purchased at trustee’s sale a tract of land in Prince George’s county, containing about seven hundred and ninety-two acres, made a written agreement with the defendant, on the 12th of January, 1870, by which they agreed to sell and ho to purchase, one undivided eighth part thereof for $2,968.13, payable in instalments; he also agreeing to pay one-eighth of all expenses incurred in the purchase of the whole tract, and in improving the same, including the building of houses, since the 10th of November, 1869, and to move with his family on the land and farm a portion of it on such terms as are usual in that part of Maryland.

Under this contract the complainants put the defendant in possession of about one-half the land, but difficulties having subsequently arisen between them, owing, as the bill charges, to the bad conduct of the defendant and his neglect and mismanagement of the property of the complainants, who had in the meantime received their deed for the land from the trustee, determined to terminate their connection with the defendant, and proposed and entered into another agreement with him on the 12th of January, 1871, annulling, as they aver, the former contract.

So far as it is necessary to state the terms of this latter agreement, it appears the complainants thereby agree to pay the defendant $100, to refund to him the money he had then advanced under the previous contract, amounting to $1,855.08, t,o allow him and his family to remain in the dwelling house, and to work certain designated parts of the land, which he on his part agreed to work to the best advantage and in such crops as he thought proper, and • “ to vacate the dwelling house and land on or before the Isá day of January, 1872;” he was also to have one-half of all the crops, including the provender made on the land during the year 1871, and they reserved the right to enter and make improvements upon the property and to seed<the land in the fall of 1871.

The bill filed on the 29th of January, 1872, contains numerous statements and charges. We shall notice only those the complainants’ counsel have deemed most material. They are in substance as follows: The complainants aver they have in good faith performed their part of the contract of January, 1871, have paid to the defendant the $100, and tendered to him the whole amount he had advanced under the agreement' of January, 1870, which he has declined to receive, and have permitted him with his family to occupy the dwelling house, and to work and cultivate, as their tenant, for the year 1871, that part of the laud they agreed he should work. They charge that his management and cultivation since January 1871, has" been very destructive and injurious to the land itself and the buildings thereon-; that he has permitted a large new tobacco house to be blown down and destroyed, for want of care and proper attention; that he has refused, and still refuses, to pay the rent due for the year 1871 — being one-half the crops — and is converting the same to his own use in reckless and utter violation of his said contract; that during the year 1871 he has cut and used for fuel valuable timber trees,, has permitted all the fencing to be destroyed, has refused to repair the fences as he should have, done, although complainants have furnished on the place four or five thousand rails which have become more or less destroyed; that on the 4th of January, 1872, they, in pursuance of the agreement of January, 1871, demanded of him to vacate at once with his family the said dwelling house and lands, but he has positively refused to do so, and fraudulently threatens to destroy the buildings remaining on the place, and to destroy every thing on the place belonging to complainants, and to injure the land and premises in every manner and way he can, and they have reason to believe and fear from his repeated menaces and threats that he will do so; that he has already done in fraud of their rights great injury to the property and committed repeated and great waste and damage to it. They aver the property is not safe and secure in his hands, nor are the last nor will the future rents and profits of the same be safe in his hands, but the same will be reckléssly and fraudulently destroyed and wasted so that they will be utterly lost to the complainants who are entitled to the same; and they also charge and aver that the defendant is insolvent, and that they will have no security for their indemnity if he is permitted to remain in possession and to receive the rents and profits of the property. They further charge that he fraudulently intends and affirms that he will hold on to the possession of the property in utter disregard of complainants’ rights and of his solemn agreement as aforesaid, and they believe and therefore charge, if he is permitted to remain in possession, that he will wantonly destroy and injure the property, and they will not be able to make the improvements on the lands by the erection of buildings which they design to do, and their loss will be great and irreparable. In view therefore of the fraudulent proceeding of the defendant and the wrongs and injuries already done to the complainants, and those threatened to be done by him, they are advised they are entitled to relief in the premises by the granting of an injunction and the appointment of a receiver.

The prayer of the bill is that an injunction be issued enjoining, restraining and forbidding the defendant from further using or occupying the said property, lands and dwellings thereon, and enjoining and forbidding him to attempt further to cultivate the said lands, or any part thereof, or. in any manner interfering with the same or any part thereof, and also for appointment of a receiver for the said property with power and authority to take possession of and preserve the same in all respects, and to farm and cultivate the said land, and to collect, receive and take care of all the rents, crops, issues and profits thereof, to be accounted for in this Court, until the further order of the Court, and for full and general relief in the premises.

On this bill with the accompanying exhibits the Court passed the order from which this appeal is taken, directing the injunction to issue as prayed, and at the same time appointing a receiver to take charge of the real estate mentioned in the bill, and to cultivate, manage and' collect the rents and profits due or arising therefrom, and requiring the defendant to deliver the same to the receiver, subject however to any future.order of the Court.

It is plain the whole scope and purpose of this bill, the ultimate object it seeks to' attain, is to oust the defendant of possession of the land and dwelling house. This has been done by means of a receiver and the writ of injunction in the form asked for and granted. These have been made to perform the office of a writ of habere facias possessionem. Thus the main object of the bill has been attained by the order appealed from, passed on an ex parte application, without allowing the defendant an opportunity to be heard. No authority or precedent for such a proceeding has been cited, and it would be strange ifhihy could be found. The only effectual remedy the defendant had was to suspend the operation of the order by an immediate appeal, which he has very properly taken.

What was the relation between these parties? The bill avers and the exhibits show the defendant was' tenant of the complainants for the year 1871, under an agreement to render as rent a portion of the crops raised upon the land, and to quit the premises at the end of that year. .The law clothed the landlords with ample power to terminate that tenancy at its expiration, and summarily eject the tenant if he held over. If they failed to take the necessary steps to that end, does this give them the right to ask a Court of Equity to remove him? If by reason of this failure the defendant has acquired the right to continue their tenant at sufferance or for another year, has equity jurisdiction to intervene and oust him because he is a bad manager or cultivator, or is vicious1 and disagreeable to his landlords, or is insolvent? Cases not unfrequently occur where a receiver of-rents and profits1 of x-eal estate may he appointed even on an ex parte application, where the main object of the bill is some relief properly cognizable in equity, and the purpose is to preserve and secure them for the benefit of those ultimately entitled. In such cases the averment of insolvency of the party in possession and receipt of the rents and profits, is most important in making out that strong and special case of imminent danger of loss always required as essential to a departure from the old rule, not to make such an appointment in any case, under any circumstances, before answer. Thus in Clark vs. Ridgely, 1 Md. Ch. Dec., 70, the complainants claimed title to a trust real estate and the rents and profits thereof, and sought by their bill a sale for the purpose of partition and an account of the rents and profits from the party in possession. The bill also asked for a receiver, and we may assume the Chancellor would have made the appointment at once, axxd rightfully, if there had been an averment that the party in the enjoyment of the rents and profits was insolvent and unable to account for the same. So in Hannah K. Chase’s Case, 1 Bland, 206, where a widow was seeking dower in real estate (the Fountain Inn, in Baltimore,) and an account of rents and profits from the time her title accrued, the Chancellor, upon averment and proof that the party in whose hands and control the property was, and who was in the actual receipt of its rents and profits, was insolvent, appointed a receiver because that averment and proof showed the rents and profits to be exposed to imminent danger, or indeed to inevitable loss. Where a money fund is the subject of controversy, cases of settlement of partnership on dissolution, and others of like character, are familiar instances where the exercise of this power by Courts of Equity has been beneficially exerted. But none of these bear any analogy to the case before us. Title to the land as between these parties is not made a subject of litigation by this bill. It merely states a case in which the relation of landlord and tenant exists, and the object is to amove the tenant. For that purpose full and adequate remedy has been provided by law without the aid of equity. The law has also provided ample and summary means for the landlord to collect his rent. When this bill was filed the process of distraint was open to the complainants for the rent due and in arrear for the year 1871, whether that was a money rent or a portion of the crops. If any right of possession in the defendant now exists, it is in virtue of that relation and by reason of the complainants’ neglect to take in time the proper steps to eject him. If a landowner has upon his lands, by agreement or default, a negligent and insolvent tenant bound to pay rent in money or in kind, that fact cannot give a Court of Equity power to amove him and work the land during the tenancy by means of .a receiver. To sustain- a pretension like this would open a novel and most extensive head of equity jurisdiction, and equity Courts might soon find themselves engaged in working and managing half the farms in the State. If he is a mere naked trespasser the law also furnishes ample means of redress.

(Decided 21st May, 1872.)

The only ground of interference by a Court of Equity in a case like this is to prevent waste or acts of irreparable injury. If that had been the relief sought, and the injunction confined to this preventive remedy, we should have affirmed the action of the Court below in granting the injunction. For that purpose the averments of the bill are sufficient, and the case would fall within the numerous decisions of this Court, settling the law upon that subject. There is no prayer for such specific relief in the bill, but under the prayer for general relief the complainants may apply for a modified injunction covering this ground, which may be granted if the Court below, on considering the bill and answer (the latter of which this Court is not at liberty to notice on this appeal) or on further application, shall .deem it proper. For that purpose the cause, on reversal of the order appealed from, will be remanded.

Order reversed and , cause remanded.