Hollander v. Central Metal Co. , 109 Md. 131 ( 1908 )

The Central Metal and Supply Company of Baltimore City, "a corporation duly incorporated under the laws of the State of Maryland," having purchased the leasehold estate in a certain lot of land in Baltimore City, brought this suit on the 31st day of May, 1907, against the appellants, as the present owners of the reversion in said lot, for a specific performance of the covenant in the lease of the lessor, "her heirs and assigns," upon payment of the amounts specified therein, to convey the fee to the lessees, their "heirs and assigns." The bill alleges that the defendants, Charles Hollander and Elsie Hollander, his wife, and Lee M. Hollander are non-residents, and that the plaintiff, in January, 1907, addressed a letter to these defendants notifying them of its desire to redeem the ground rent under the lease, and prepared and forwarded to them for execution, a deed from them to the plaintiff of the fee in said lot, which they refused to execute on the ground that "the said rent is not redeemable." After an order of publication had been passed against the non-resident defendants, Charles S. Hollander and wife filed a motion to rescind the order, and to quash the proceedings, on the ground (1) that a suit for the specific performance of a contract is a suit in personam, and can not be maintained against a non-resident on service by publication, and (2) that the order of publication in this case does not contain a sufficient description of the property to inform the defendants of the property involved in the suit. Sometime after this motion was filed, Lee M. Hollander filed a similar motion, alleging as an additional reason for rescinding the order as against him, that at the time of the bringing of the suit he was a resident of the State of Maryland.

The case of Worthington v. Lee, 61 Md. 530, was for specific performance of a covenant for a renewal of a lease for ninety-nine years, renewable forever, and for an injunction to restrain an action of ejectment for the recovery of the premises. Some of the non-resident defendants appeared and pleaded to the jurisdiction of the Court to grant relief, while against others interlocutory decrees were entered in default of appearance and answer. The notice to non-residents was by publication, and the Court in dealing with the case as against the non-resident defendants, said, "If the application was for a sale of the property, or for a simple conveyance thereof, those objects could be accomplished by the appointment of a trustee, as provided by the Code, Art. 16, Secs. 67, 135. But those provisions of the statute do not apply in a case like the present, where the object of the decree is to secure to the plaintiff the specific execution of the covenant, whereby she is entitled to obtain a renewed lease, with important and valuable personal covenants of the lessors, and without which it would not be an instrument of the character contemplated by the covenant decreed to be performed. The Court could direct a lease for ninety-nine years to be made by a trustee, but not with covenant for renewal, and other personal covenants, to bind personally the owners of the reversion, their heirs and assigns. The Court could, through the instrumentality of a trustee, direct the conveyance of an estate, or the transfer of a right, but not the making of personal covenants, in the absence of the parties, to bind them personally, and those who may stand in privity with them. The Court possesses no such power as that inherently and the statute does not confer it."

In the case of Hart v. Samson, 110 U.S. 151, cited and relied on in Worthington v. Lee, supra, the Court said: "It would doubtless be within the power of the State in which the land lies to provide by statute that if the defendant is not found within the jurisdiction or refuses to make or to cancel a deed, this should be done in his behalf by a trustee appointed by the Court for that purpose." And in the case of Arndt v.Griggs, 134 U.S. 316, in passing upon a Nebraska Statute, and dealing with the right of the State to provide for notice to non-resident defendants, the Court said that the State had "control over property within its limits; and the condition of ownership of real estate therein, whether the owner be a stranger or a citizen, is subject to its rules concerning the holding, the transfer, liability to obligations, private or public, and the modes of establishing titles thereto. It cannot bring the person of a non-resident within its limits — its process goes not beyond its borders — but it may determine the extent of his title to real estate within its limits; and for the purpose of such determination may provide any reasonable methods of imparting notice."

Sec. 117 of Art. 16 of the Code of 1904, is as follows: "If in any suit in chancery, by bill or petition, respecting in any manner the sale, partition, conveyance or transfer of any real or personal property lying or being in this State, or to foreclose any mortgage thereon, or to enforce any contract or lien relating to the same, or concerning any use, trust or other interest therein, any or all of the defendants are non-residents, the Court in which such suit is pending may order notice to be given to such non-residents, of the substance and object of such bill or petition, and warning them to appear by a day therein stated." Sec. 127 of Art. 16, provides how the notice shall be given, and Sec. 91 authorizes the Court, whenever the execution of a deed of any kind is decreed, to appoint a trustee to execute it.

The prayer of the bill and the covenant here sought to be enforced is for conveyance to the appellee of the lot described in the lease, and while the Court could not enforce a decree requiring a non-resident to execute a deed for the property, its decree may be made effective under the provisions of the Code, by the appointment of a trustee to convey the title of the appellants, and to that end the proceedings are in rem and notin personam. Miller's Equity Procedure, Sec. 120; White v.White, 7 G. J. 208; 22 Am. Eng. Ency. of Law, 917;Phelps on Juridical Equity, Secs. 85, 223.

The order of publication, which is set out in the record, in addition to describing the land as the "lot of ground on the East side of a ten foot alley in the rear of Lombard and Frederick Streets in the City of Baltimore;" and as being subject to the annual ground rent of thirty-six dollars "created by the lease from Charlotte Bolgiano to Robert Bolton and others, dated July 18, 1835, and recorded in Liber T.K. No. 262, folio 294, etc.," states that an undivided one-third interest in the reversion in said lot is vested in Edward Hollander, trustee for Amelia Hollander, for life, remainder to Charles S. and Levi M. Hollander, and that the remaining two-thirds interest is vested in said Charles S. and Levi M. Hollander, "as by reference to Liber R.O., No. 2243, folio 93 will appear," and that the plaintiff notified the defendants by letter of its desire to redeem said rent, and prepared and had sent to them for execution, a deed from them to the plaintiff for their interest in said lot which they declined to execute and returned. The reference to the lease under and by virtue of which the defendants received the annual rent of thirty-six dollars, to their interest in the reversion, and to the letter and deed sent to them, could have left no doubt in their minds as to the land referred to, and we think was sufficient notice to the defendants of the subject matter of the suit. Mewshaw v. Mewshaw, 2 Md. Ch. 12; Phelps on Juridical Equity, 313.

The petition of Lee M. Hollander was answered by the plaintiff, denying that he was a resident of the State of Maryland, and again alleging that he was a non-resident. The matter, as stated in the opinion of the Court below, was submitted, without proof, on the petition and answer, and his motion, and the motion of Charles S. Hollander, was, and we think properly, overruled. Where a case is submitted on petition and answer, the truth of the facts alleged in the answer is taken to be admitted, but the privilege of having a case so heard belongs only to the petitioner. The record does not disclose who set this motion down for hearing, but as the plaintiff in this case had no right to do so on the petition and answer, we must assume that it was done at the instance of the petitioner. Miller's Equity Procedure, Sec. 255 and notes.

After these motions were overruled, the defendants demurred to the bill on the following grounds: (1) that the bill does not show plaintiff's right to take advantage of the covenant in the lease; (2) that the plaintiff does not offer to comply with the terms of the covenant; (3) that the covenant is not one running with the land, and cannot be enforced by the assignee of the lessees against the assignees of the lessor; and (4) that the covenant cannot be enforced against the assignee of the reversion because it violates the Rule against Perpetuities.

The bill charges that the plaintiff, on the 9th day of January, 1907, obtained by deed from Benjamin Krulewitch, administrator, the leasehold property, a description of which is set out in the bill and in the plaintiff's deed filed with the bill; that the lot of ground so obtained by the plaintiff is subject to an annual ground rent of thirty-six dollars, created by a lease from Charlotte Bolgiano to Robert Bolton and others, dated July 18, 1835, and recorded among the Land Records in Liber T.K., No. 262, folio 294, c., and a certified copy of which is filed with the bill; "that the said lease contains a covenant on the part of said lessor, her heirs and assigns, that at any time during the continuance of said demise at the request and cost of said lessees, their heirs or assigns, and on their paying six hundred dollars, with all rent accrued and accruing, said lessor, her heirs and assigns, would cause to be delivered to said lessees, their heirs and assigns, a good and sufficient deed in fee simple, of and for the said property;" and that the plaintiff bought said property "upon the express condition that the said rent could be extinguished at its option at any time;" "that the reversion in and to said lot, with the right to collect the annual rent of thirty-six dollars, is now vested in said defendants, as follows: (a) Edward Hollander, trustee, one of the above-named defendants and trustee in the case of EdwardHollander v. Amelia Hollander et al., in the Circuit Court of Baltimore City (Docket 24A, folio 245), holds a one undivided third interest therein, for Amelia Hollander, another of the above-named defendants, for life, with remainder to Charles S. Hollander and Lee M. Hollander, other above-named defendants, absolutely. (b) Said Charles S. Hollander and Lee M. Hollander hold the other two-thirds undivided interest therein; as would appear by reference to the deed to said named defendants of said lot of ground, dated May 10, 1905, and recorded among the said Land Records in Liber R.O., No. 2143, folio 93, c." That the plaintiff notified the non-resident defendants by letter of its desire to redeem said ground rent, and in January, 1907, prepared and had sent to them for execution, a deed to the plaintiff of their interest in said lot, which deed they refused to execute on the ground that by the terms of said lease the rent was not redeemable; that on the 20th of May, 1907, the plaintiff tendered to Edward Hollander, trustee, $210.30, it "being one-third of the said redemption money, together with the proportionate part of the accruing rent to the date thereof, and likewise, on May 31, 1907, tendered to Arthur W. Machen, Jr., Esq., solicitor of the defendants, Charles S. Hollander and Elsie Hollander, his wife, and Lee M. Hollander, the sum of $420.60, being their two-thirds share of said redemption money, together with their proportionate part of the accruing rent to said date;" and that at the same time plaintiff handed to said trustee and said solicitor a draft for a new deed, "requesting them, and each of them, to have the same properly executed so as to vest" the plaintiff "with an absolute fee simple title in and to the property," which deed is filed with the bill, and which they refused to execute or to have executed; and that said Machen was the solicitor of the defendants "in this matter." The prayer of the bill is for leave to bring into Court the sum of $630.90 so tendered, and that a trustee may be appointed to convey to the plaintiff the reversion in said lot, etc.

(1) The general rule is that the bill must state clearly plaintiff's right to the relief prayed, and counsel for the appellants insist that in compliance with this rule, the bill should have set out all of the assignments from the original lessees down to the plaintiff, in order to show the right of the plaintiff, as assignee of the leasehold estate, to the benefit of the covenant sought to be enforced. The leasehold interest was conveyed by the lease to the lessees, their executors, administrators and assigns, and the bill charges that the plaintiff is the owner of the leasehold property described in said lease by virtue of the deed from Benjamin Krulewitch, administrator. If the covenant is one that runs with the lease, in favor of the assignee of the lessees, the right to the leasehold interest created by the lease entitles the owner to the benefit of the covenant. In Spencer's Case, 1 Smith's Leading Cases, p. 77, "It was resolved that the assignee of the assignee should have an action of covenant. So of the executors of the assignee of the assignee; so of the assignee of the executors or administrators of every assignee, for all are comprised within this word (assignees), for the same right which was in the testator, or intestate, shall go to his executors or administrators." The bill in substance alleges that the plaintiff is the assignee of the leasehold interest or estate created by said lease. It was not necessary to allege all the circumstances tending to prove that fact. While "every material fact to which the plaintiff means to offer evidence ought to be distinctly stated in the premises; for otherwise he will not be permitted to offer or require any evidence of such fact. A general charge or statement, however, of the matter of fact is sufficient; and it is not necessary to charge minutely all the circumstances which may conduce to prove the general charge; for these circumstances are properly matters of evidence, which need not be charged in order to let them in as proofs." Story's Equity Pleadings, Sec. 28 (5th Ed.); Miller's Equity Procedure, Sec. 92; Phelps onJuridical Equity, Secs. 49, 55; Mewshaw v. Mewshaw, supra;Dennis v. Dennis, 15 Md. 73. The covenant is, at the request, etc., of the lessees, "their heirs and assigns," to convey to the lessees, their heirs and assigns, etc., yet the manifest intention of the parties to the lease, as gathered from the whole instrument, was to give to the lessees and those claiming under them, viz: "their executors, administrators and assigns," the benefit of the covenant. This, however, is not an action at law for a breach of the covenant, and the doctrine of specific performance does not depend upon such technical distinctions. Wherever, and without regard to the form and technical character of the contract, performance of a covenant in respect to lands would have been decreed between the parties to it, it will, in the absence of controlling intervening equities, "be decreed as between persons claiming under them in privity of estate, or of representation, or of title." 2 Story's Eq., Secs. 788-790, 714, 715, 791 (5th Ed.); Worthington v. Lee, supra.

(2) The second objection to the bill is that the plaintiff does not offer to bear the "cost and charge" of the conveyance of the fee to him, which, it is claimed, include a counsel fee to the defendants for the examination of plaintiff's title in order to ascertain if he is legally entitled to the benefit of the covenant. In the case of Oelrichs v. Spain, 15 Wall. 21, the Court held that counsel fees were not recoverable in a suit on an injunction bond, the condition of which was to satisfy and pay "all costs, damages and charges" which should be occasioned by such writ of injunction, and said that the disallowance of such fees "rests on a solid foundation, and that the opposite rule is forbidden by the analogies of the law and sound public policy." This case was cited and relied on in Wood v. State, use ofWhite, 66 Md. 61, where, in a suit on an injunction bond, the Court held that the plaintiff could not recover fees paid counsel for procuring a dissolution of the injunction. In Johnson v.Glenn, 80 Md. 369, a provision in a mortgage authorizing "the payment of all expenses incident to such sale," was said to include services of an auctioneer, cost of advertising, etc., but not an allowance for commissions. Counsel fees "are not allowable" as costs "in the absence of a statute or in the absence of some agreement or stipulation specially authorizing the allowance thereof." 11 Cyc. 104. While parties must be left to contract as they please, in the absence of a clear undertaking to do so, one party to a contract should not be required to pay for services rendered for the benefit of the other, and whatever may have been held on the subject elsewhere, under the dcisions in this State the "cost and charge" which the plaintiff under the lease is required to pay, cannot be held to include a counsel fee to the defendants for examination of the plaintiff's title.

(3) The next ground of the demurrer is that the covenant to convey the fee to the lessees, "their heirs and assigns," is not a covenant running with the land. In Glenn v. Canby,24 Md. 127, the Court stated as the established doctrine, "that a covenant to run with the land must extend to the land, so that the thing required to be done will affect the quality, value, or mode of enjoying the estate conveyed, and thus constitute a condition annexed or appurtenant to it; there must also be a privity of estate between the contracting parties, and the covenant must be consistent with the estate to which it adheres, and of such a character that the estate will not be defeated or changed by a performance of it." This is the doctrine asserted by Mr. Poe in 1 Poe's P. P. 253 (1st Ed.), and reiterated by this Court in Whalen v. B. O.R.R. Co., 108 Md. 11. InTaylor's Landlord and Tenant, Sec. 261 (7th Ed.), it is said that "In order that a covenant may run with the land, its performance or non-performance must affect the nature, quality or value of the property demised, independent of collateral circumstances, or must affect its mode of enjoyment. It must not only concern the land, but there must be a privity of estate between the contracting parties." "In order that a covenant may run with the land, that is, that its benefit or obligation may pass with the ownership, it must respect the thing granted or demised, and the act covenanted to be done or omitted must concern the land or estate conveyed. Whether a covenant will or will not run with the land does not, however, so much depend on whether it is to be performed on the land itself as on whether it tends directly or necessarily to enhance its value or render it more beneficial and convenient to those by whom it is owned or occupied, for if this be the case every successive assignee of the land will be entitled to enforce the covenant." 11 Cyc., 1080. "Such covenants, and such only, run with land as concern the land itself. in whatsoever hands it may be, and become united with, and form a part of, the consideration for which the land, or some interest in it, is parted with, between the covenantor and covenantee." Washburn on RealProperty, Sec. 1205.

That the covenant in this case is within these requirements, as affecting the interest in the land demised, as enhancing the value thereof, and as forming a part of the consideration for the acceptance of the lease by the lessees, would seem to be free of doubt. The learned counsel for the appellants contend, however, that the performance of the covenant would defeat the estate of the lessor, and change the character of the estate of the lessee, and that it therefore falls within the restrictions of Glenn v.Canby, supra. But in Taylor's Landlord and Tenant, Sec. 262, it is said: "The right of renewal constitutes a part of the tenant's interest in the land, and a covenant to renew is consequently binding upon the assignee of the reversion. So the grant of an additional term or the right to purchase is, for many purposes, to be considered a continuation of the former lease; and if there is nothing in the lease to show that suchright or renewal was intended to be confined personally to the lessee, they will enure to his assignees or executors, without their being particularly named."

In the case of Maughlin v. Perry, 35 Md. 352, the covenant on the part of the lessor was as follows: "And the said party of the first part, for himself, his heirs and assigns, doth hereby covenant and agree with the party of the second part, his heirs and assigns, to sell and convey unto the party of the second part, his heirs and assigns, the above described property and premises for the sum of fifteen hundred dollars at any time before the expiration of this lease or tenancy." The lessor died after having sold the property, and suit was brought by the assignees of the lessee against the assignee of the lessor for a specific performance of the covenant, and the Court, in affirming a decree requiring the defendant to convey the property to the plaintiff in accordance with the terms of the covenant, said: "As a part of the consideration of the lease constituting the contract between the parties, Wells, the lessor, covenanted to sell the property to Hynson, his lessee, for fifteen hundred dollars, at any time during the existence of the lease. This was a continual obligation running with the lease on the part of the lessor, with the option in the tenant to accept the same or not, within that time. But, it seems, Wells, before the right of Hynson to make his election had determined, made sale of the property to Maughlin, and died. Maughlin, with notice of the recorded contract between the parties, can acquire no greater right than possessed by Wells." The certain and definite rule deducible from the authorities cited then is that if the covenant, as in this case, touches and concerns the land or estate demised, enhances the value thereof, and forms a part of the consideration for the acceptance of the lease by the lessee, a Court of equity will decree specific performance, not only as between the parties to the contract, but, in the absence of intervening equities controlling its conscience, also as between those claiming under them in privity of estate. 24 Cyc. 1026; Gear on Landlord and Tenant, Sec. 84; Laffan v.Nagle, 70 Am. Dec. 678; Robinson v. Perry, 68 Am. Dec. 455;Kerr v. Day, 53 Am. Dec. 526; Hager v. Buck, 8 Am. Rep. 368; Spencer's Case, 1 Smith's Leading Cases, 75.

(4) The remaining ground of the demurrer is that the covenant cannot be enforced because of the Rule against Perpetuities. The nearest approach to a correct definition of a perpetuity is found, this Court said in Graham v. Whitridge. 99 Md. 248, inLewis on Perpetuities, and is as follows: "A future limitation, whether executory or by way of remainder, and of either real or personal property, which is not to vest until after the expiration of, or will not necessarily vest within, the period fixed and prescribed by law for the creation of future estates and interests, and which is not destructible by the person for the time being entitled to the property subject to the future limitations except with the concurrence of the individual interested under that limitation." In Gray on Perpetuities, Sec. 230 (2nd Ed.), the author says, that covenants for perpetual renewal are treated as an exception to the Rule against Perpetuities, but that it is "hardly necessary to create an exception to meet the case — the covenant to renew is a part of the lessee's present interest." And, in Sec. 230b, that "An option to a tenant for years to purchase a fee, exercisable at a remote time, is bad as violating the Rule against Perpetuities. * * * The only reason for considering the Rule against Perpetuities as inapplicable to such an option is the analogy to covenants for renewal treated in the two preceding sections. But the exemption from the Rule in the case covenants for renewal is either an exception which there is no reason to extend, or is to be explained, as it is in Sec. 230, on the ground that the covenant to renew is a part of the present interest, a ground which cannot well be taken when the present interest is a tenancy for years, and the interest to be purchased is a fee." While the statement of Mr. Gray, that the option to a tenant to purchase is bad, is supported by the authorities cited by the appellants, the distinction he makes between such an option and a covenant for renewal is not altogether satisfactory. The application of the Rule is not determined by the character of the estate or interest conveyed, but by the answer to the question, will it necessarily vest within the time fixed by the Rule? If the fee covenanted to be conveyed in the covenant under consideration is to be regarded as a future limitation, it may not of course necessarily vest under the terms of the covenant within the prescribed time. Likewise the estate to be conveyed to the lessee under the covenant for a renewal of the lease, at the option of the lessee, and upon payment of a fine, etc. If the covenant to renew is a part of the lessee's present interest, so is the covenant for a conveyance of the fee. The estate acquired under the new lease, while of the same character, is for a different term, and just as much a new and distinct estate as the estate acquired under the covenant for the conveyance of the fee. If the estate conveyed to the lessee, and the lessee's present interest, is, in the one case, not a term for ninety-nine years, but a term for ninety-nine years with theright of renewal, so, in the other case, the estate conveyed to the lessee, and the lessee's present interest, is not a definite term, but the term coupled with the right to acquire the fee. In this connection we may again refer to the statement inTaylor's Landlord and Tenant, supra, that "the grant of an additional term, or of a right to purchase is, for many purposes, to be considered a continuation of the former lease." But however this may be, our predecessors, in view of the fact that titles to property of great value in Baltimore City, and elsewhere in the State, are held under leases of the character of the one in this case (the forms of which, generally used, are suggested inLatrobe's Justices' Practice, pp. 463, 464 (7th Ed.), andCarey's Forms and Precedents, pp. 364-365), have somewhat relaxed the technical rules applicable to such estates, for the purpose of enforcing the contracts of the parties thereto. InBanks v. Haskie, 45 Md. 207, where a bill was filed for specific performance of a covenant for renewal in a lease for ninety-nine years, renewable forever, the Court in discussing the character of estates created by such leases said: "This character of tenure is, so far as we know among the States, peculiar to Maryland. It has not been generally adopted so far as we are informed in any other State. It was introduced here in colonial times, and has been a favorite system of tenure from a very early period. A large city has been built, and improved, and a vast majority of the real estate in Baltimore is now held under it. It is not open to any of the objections against perpetuities. Property is not thereby placed extra commercium. On the contrary, these leasehold interests devolve upon the personal representatives of the owner, are in terms made assignable, and they, as well as the ownerships in fee under the denomination of `ground-rents,' are subjects of daily transfer, and are constantly sought for a safe investment of capital. It is a peculiar description of tenure which has been sustained by our Courts, and approved and fostered by our people. While the ground rents from their nature are usually of a fixed value, the leasehold interests are more or less fluctuating. In many, and indeed in most cases, they have largely increased in value with the growth of the city. And most extensive and costly improvements have been and are daily made by owners of such interests on grounds thus leased."

Again in the case of Myers v. Silljacks, 58 Md. 319, speaking of leases of this character, JUDGE ALVEY said: "We all know that estates dependent upon leases like the one before us are exceedingly common in this State, and particularly so in the City of Baltimore. Both the reversionary freehold and the leasehold estates are the subjects of daily transfers and assignments, and they constitute a considerable portion of the substantial wealth of the people. While the one estate is subject exclusively to the law that governs real property, the other is mainly controlled by the law that governs personalty; the one estate passing by descent, and being subject to the law of partition among heirs, while the other is the subject of administration, and is governed by the law that directs distribution of the personal estate. Both estates alike are the subjects of mortgage and judgment liens, and are constantly being sold and transferred in the enforcement of such charges. It is of the utmost importance, therefore, that the tenure be maintained with entire certainty; that the true relation of the parties to the property be at all times fully recognized, so that their exact rights may be known and enforced, and that third parties may know how to deal with respect to those rights." And again, in the case of Worthington v. Lee, supra, the Court said, that the above cases fully state the reasons why this Court "has applied a more liberal doctrine to these cases than that applied in the English Courts; and it has done so with special reference to the peculiar nature and condition of the local titles that exist in the City of Baltimore." Without detracting from the great weight and respect to which the authorities cited by appellants are justly entitled, we must adhere to the previous decisions of this Court, and hold that the lease in question did not place the propertyextra commercium, and that the rights of the parties under the covenants therein are "not open to any of the objections against perpetuities."

It follows from what we have said, that the decree of the Court below must be affirmed.

Decree affirmed, with costs and cause remanded.

Subsequently the following supplemental opinion was delivered by THOMAS, J.:

Since the filing of the opinion in this case our attention has been called to the agreement of counsel and the certificate of the Clerk of the Circuit Court of Baltimore City, filed in this Court on the day of the argument, whereby it appears that the petition and motion of Lee M. Hollander was set down for hearing by the plaintiff.

In the case of Paul v. Nixon, reported in a note to Jones v. Magill, 1 Bland, 177, CHANCELLOR HANSON said: "If indeed the defendant was entitled to have the case set down for final hearing, on bill and answer, it must be on terms similar to those of the complainant's setting down, viz, that everything contained in the bill is true, that is to say, the rule must be reversed. But there is no such practice." Miller's Eq. Procedure, p. 319, note 4.

Who is a non-resident, is a mixed question of law and fact. The petitioner states in his petition "That he has lately been in Scandinavia for a year and a half for the purpose of studying philology, and is now in the city of New York for the purpose of using libraries there situated, but that your petitioner has never abandoned his residence and citizenship in the State of Maryland." It therefore appears that he has been out of the State at least a year and a half. The petition does not say when he expects to return to Maryland, or whether he intends to return at any certain time, and it may be that he intends to remain out of the State indefinitely. If he has been out of the State for a year and a half with no intention of returning, "or with the intention of returning at some indefinite time in the future, as circumstances may dictate or permit," he is a non-resident within the meaning of Section 123 of Art. 16 of the Code, and may be proceeded against as such, notwithstanding he may not intend to abandon his domicil in this State, for, as was said in Dorsey v. Kyle, 30 Md. 512, "In contemplation of the attachment law, the domicil may be in this State, while the actual residence is in another." The term "non-resident" in Sec. 123 of Art. 16 of the Code, means a "person who doth not reside in this State," as defined in the law relating to attachment.Dorsey v. Dorsey, 30 Md. 531; Miller's Eq. Procedure, Sec. 123, p. 160.

In the case of Dorsey v. Dorsey, supra, the defendant stated in his petition that he left his home in Maryland to visit his wife, who was then sick at her father's in Winchester, Virginia, with the intention of returning in a few days, but owing to the position of the armies about Winchester and Harper's Ferry he was unable to do so and was forced to wait for the close of the Civil War, although at all times intending to return. While he was absent from the State he was proceeded against as a non-resident, and the Court held that he was a non-resident within the meaning of the provision of the Code.

In the case of Risewick v. Davis, 19 Md. 82, in disposing of an exception to evidence offered to show the intention of the defendant to return to the State, at some indefinite time, the Court said: "Residence and domicil are sometime distinct things.In the matter of Thompson, 1 Wend. 43, it was decided that residence out of the State for the purpose of being subject to foreign attachment, did not import that domicil should be out of the State also. Frost v. Bresbin, 19 Wend. 14. In Haggart v. Morgan, 1 Seldon, 428, the defendant offered to prove that, at the time of taking out the attachment, he was not a non-resident, but a resident of the City of New York, that he had been absent about three years, attending a law-suit at New Orleans, and returned in the spring of 1848; the judge excluded the evidence, on the ground that the offer itself showed the debtor to be a non-resident, within the spirit of the Act. In the case at bar, the defendant had been absent four or five years, and non constat, but he might be absent as many years longer. The evidence being foreign to the issue, should have been excluded."

Mr. Poe says: "It may be stated, as the resutl of the authorities, that where a citizen of this State, domiciled here, goes abroad on business or pleasure for a brief period, without any intention of abandoning or changing his domicil, and with a fixed purpose to return at a definite or specified time, retaining and intending to retain, in the meantime, both his domicil and political citizenship, he cannot properly be treated as a non-resident within the meaning of the attachment law, simply because of his temporary absence from his residence and home. Where, however, he leaves the State and remains absent for any considerable period, without any intention of returning, or with the intention of returning at some indefinite time in the future, as circumstances may dictate or permit, he will be liable to be proceeded against as a non-resident, notwithstanding he may not have acquired a fixed residence in any other State or country." 2 Poe's P. P., sec. 506 (3rd Ed.).

On the facts stated in the petition we think the plaintiff had a right to proceed against the petitioner as a non-resident, and that, therefore, there was no error in the order of the Court overruling the motion to quash the proceedings against him. As we have said, the plaintiff had no right to have the matter set down for hearing on the petition and answer, but as it appears he did so, we must assume that it was done with the petitioner's consent, and he, therefore, has no right to complain if the motion was properly disposed of on the facts stated in his petition.