Tizer v. Tizer , 162 Md. 489 ( 1932 )

The appellants and the appellees, on June 9th, 1930, entered into the following agreement, which was signed and sworn to before and witnessed by a notary public:

"Turner Sta., Maryland. June 9, 1930.

"Agreement.

"Between Frank Tizer, Steve, Mary and Agnes, property owners.

"The house is located at Turner Sta., Maryland Ave., Balnew Md. on lots numbered 84 and 85.

"John Nagy, Mary Tizer, and Agnes Tizer have made preparations to rent the building.

"Terms.

"(1) The rent for the first five years will be $100.00 each month until June 15, 1935. From June 15, 1935 to June 15, 1940 the rent will be raised to $110.00 each month. The property owners will not be able to raise the rent until after the term of the agreement expires. The rent must be payable on the 15th of every month.

"(2) The property owners may sell the building, but the new owners will have to keep the same agreement, which is unchangeable.

"(3) This agreement will go into effect on June 15, 1930 — until June 15, 1940. The agreement will run in a term of ten years.

"(4) When the term of ten years is over the tenants will — have first rights to open up a new business under a new agreement.

"(5) The property owners must turn the building over to the tenants in good condition, and must keep it in a good condition through the ten year term making all repairs necessary and in three years time they must build a garage.

"(6) The property owners require the tenants to obey the rules of the State of Maryland. They are in no way responsible for any of the State rules broken.

"(7) When the tenants decide on selling the business, the property owners will leave them at their liberty.

"Signed and sworn to this 9th day of June, 1931.

"Frank Tizer, "Steve Tizer, "X Mrs. Mary Tizer, "Mrs. Agnes Tizer, "John Nagy.

"James K. Weeder, Notary Public."

The case comes to this court on appeal from the Circuit Court for Baltimore County, from a judgment of that court on its verdict, sitting as a jury, in favor of the appellees. The action was one of replevin by the appellees for the recovery of certain goods and chattels which had been distrained by the appellants for rent alleged to have been due and in arrears in respect to the tenancy alleged to have been created by the above agreement.

The facts as appearing from the record are: That the property covered by the lease is owned by Frank Tizer and Steve Tizer, the appellants, and their respective wives, as tenants by the entirety, each pair being entitled to a half interest as tenants in common, and said respective half interests being held by the entirety; that there are two lots covered by the lease, Nos. 84 and 85, upon which two lots, or a portion of both lots, there is erected a building which under the agreement was to be occupied by the appellees during the term of the lease as a restaurant; that the appellees took possession of the property under the agreement, which became effective June 15th, 1930, and continued to occupy it until the 14th day of November, 1930, without paying the rent as stipulated in the agreement, which was $100 per month; that the appellants, on the 18th of November, 1930, through their bailiff, distrained the chattels and personal property, belonging to the appellees and being on the property in question, in satisfaction of five months' rent, amounting to $500; that the property so distrained was replevied by the appellees on November 21st, 1930, and turned over to them by the sheriff.

To the replevin suit the appellants filed pleas, the first being that they did not commit the wrongs alleged; second, that the goods and chattels mentioned in the declaration aforesaid were duly levied upon and seized under a lawful writ of distraint for rent due; and, for a third plea, made avowry, admitting the taking of the property replevied, but justifying the taking under the distraint proceeding for rent due under the terms of the lease or agreement hereinbefore referred to.

To the avowry the appellees filed pleas as follows: First, that at the time of suing out the distress there was no rent due and in arrears; second, that the avowants did not demise the premises to them as alleged; and, third, that the plaintiffs did not hold and possess the premises under a demise from the avowants as their tenants.

Upon these pleadings the case was submitted to the court sitting as a jury, and the avowants offered testimony showing the distraint for rent as having been made regularly and in conformity with the law. They further produced in evidence the agreement of renting, this agreement being produced by the witness Steve Tizer, one of the appellants, who identified each and every of the signatures thereon, and further testified that he was present and saw the respective parties sign the same; that he had not received any rent; that the rent to be paid was $100 per month, "and the three partners were to pay it, that is the tenants under the agreement who had gone into the restaurant business, into a partnership for the conduct of that business." On cross-examination this witness testified: "Agnes Tizer is my wife, I am collecting rent from her and Frank Tizer's wife and John Nagy; she is manager and owner; and Mary Tizer mentioned as a property owner in the agreement is Frank Tizer's wife, and witness and Frank Tizer were brothers; that there are two lots under the restaurant; those lots are owned by Frank Tizer, Mary Tizer * * * the two Tizers and wives." At this point the record states: "It was here admitted that the property covered by the lease in this case is owned by Frank Tizer and Steve Tizer and their respective wives as tenants by the entireties; each pair being entitled to half interest as tenants in common and said respective half interests being held by the entireties." The witness, continuing his testimony, said: "The numbers of the two lots under this building are 84 and 85; witness could not tell for sure who owns number 84; witness and Agnes Tizer own one of those lots, the deed is in their two names and the other lot is in the name of Frank Tizer and Mary Tizer; there are two separate deeds, they were made out simultaneously; and thereupon attorney for defendants (avowants) excepted to the character of evidence just hereinbefore reported and the court overruled said objection." This constitutes the first exception.

The second and final exception is to the action of the court in granting, at the close of the avowants' case, the following prayer: "The plaintiff prays the court, sitting as a jury, to instruct itself that there has been no evidence offered in this case legally sufficient to entitle the defendants to recover and its verdict must therefore be for the plaintiffs for the goods mentioned in the declaration."

It will be seen that the record presents a case of two brothers owning, together with their respective wives as tenants by the entirety, two adjoining lots in Baltimore county; that there was erected by the owners a building which covered all or a portion of both lots; that the two wives, together with the other appellee, Nagy, desired to use this building for the conduct of a restaurant business therein; whereupon the agreement or lease of June 9th, 1930, was entered into, the lessors being the two husbands and their wives, property owners, and the lessees being the two wives and Nagy. There is no dispute that the lessees went into possession on the 15th day of June, and so remained, without the payment of rent, until the date of the distress proceedings. We have, therefore, a case of husband and wife, owning land as tenants by the entirety, renting to the wife the entirety property.

The question presented for decision by the second exception is, first, whether or not the relationship of landlord and tenant can exist between tenants by the entirety in respect to the entirety property; and, if this question be answered in the negative, second, are the appellees, the tenants, entitled on this record to make such defense?

It is firmly established as a general proposition, and particularly in this state, that a tenant is estopped to deny his landlord's title; or, in other words, that a party consenting to hold as lessee cannot afterwards deny the title of his acknowledged landlord. Goodsell v. Lawson, 42 Md. 348, at page 371; Anderson v. Critcher, 11 G. J. 450; Giles v. Ebsworth,10 Md. 333, at page 344; Funk v. Kincaid, 5 Md. 404; Alexanderv. Walter, 8 Gill, 189; Stott v. Rutherford, 92 U.S. 110,23 L.Ed. 486; Isaac's Lessee v. Clarke, 2 Gill, 1. This rule is so firmly fixed and universally applied that it would serve no purpose to here repeat the sound reasons upon which the rule rests.

Deciding the exceptions in the order stated, the court's action to which the first exception was taken was the overruling of an objection "to the character of evidence just hereinbefore reported." The form in which this objection was made cannot be approved, because of its indefiniteness and lack of certainty. It fails to apprise the appellate court of the exact ruling made by the trial court. It is impossible for us to say what the trial court considered "evidence just hereinbefore reported," whether it was the last question and answer of the witness, or a considerable part of his testimony. Without regard to the form of this objection, we assume that the only purpose could be to exclude the testimony given by the witness in respect to the holding of the property by entirety. If this be true, and the trial court had sustained the objection, there would still remain in the record the admission by both parties as to the property in question being owned as tenants by the entirety.

The rule which estops a tenant from denying his landlord's title is enforced and made effective by seasonable objection on the part of the landlord to evidence offered for that purpose by the tenant, and does not apply to cases where the landlord himself either proves or admits a condition of title which would preclude the creation of the relationship of landlord and tenant. The testimony and admissions of the appellants (landlords) which are properly before the court establish a tenancy by the entirety in respect to the rented property. We have, then, competent proof that a tenancy by the entirety exists in respect to the property in question in this case, wherein, under the lease or contract of renting, the husbands and wives are the lessors and the wives are the lessees. We are of the opinion that the relationship of landlord and tenant cannot be created as here attempted by the lease of June 9th, 1930. It is clear that no valid renting of the property could have been made by the husbands without the wives joining as lessors, because the wives are as much the owners of the property as the husbands. It is the same person being lessor and lessee under the same lease, and is equivalent to the owner of the property renting that property to himself. The estate is neither that of the husband with his wife, nor of the wife with her husband, but of husband and wife as one person. Keeping in mind the nature of this estate, and the former decisions of this court in Marburg v. Cole, 49 Md. 402; McCubbin v. Stanford,85 Md. 378, 37 A. 214; Brewer v. Bowersox, 92 Md. 567,48 A. 1060; Jordan v. Reynolds, 105 Md. 288, 66 A. 37; Reed v.Reed, 109 Md. 690, 72 A. 414; Frey v. McGaw, 127 Md. 23, 95 A. 960; Stieff Co. v. Ullrich,110 Md. 634, 73 A. 874; and Masterman v. Masterman, 129 Md. 167,98 A. 537, no conveyance of property so held can be made except by the joint act of the husband and wife, and this includes conveyance by way of lease as well as by fee simple deed or mortgage. In this case we have the conveyance made by all of the parties holding as tenants by the entirety, which would constitute a good lease if the lessees were not persons who were also necessarily lessors. The attempted lease of property by the owner, as lessor, to himself as lessee, constitutes an incongruity which the law cannot sanction. It creates the same situation as that presented where one person is at the same time grantor and grantee in a deed, which, if attempted, would result in conveying nothing, because, if the grantee owned the property, he could derive no further or better title by a conveyance from himself. So in this case, the wives being entitled to the use and occupation of the entirety property before the execution of the lease, they can acquire no better or greater right to occupy it by a lease to them executed by themselves jointly with their respective husbands.

For the reasons stated, the judgment must be affirmed.

Judgment affirmed, with costs to the appellees.