Rosenthal v. Freeburger

Bartol, J.,

delivered the opinion of this Court.

This appeal is from an order of the Circuit Court of Baltimore city granting an injunction, and brings before us only the hill of complaint. This alleges that the appellee was, at the time of filing it, in the occupation of certain premises on Pennsylvania Avenue in Baltimore city, which he had so occupied for a number of years, and which he had originally rented of one Williamson, the then owner-thereof, at a yearly rent of $200, payable monthly. That-the appellant purchased said premises from Williamson,, promising the appellee that he should be his permanent, tenant of the same.

That after the purchase the appellant entered into an, agreement with the appellee, by which he bound himself to give the appellee a lease for five years at a rent of $200 a year, payable monthly, exclusive of water rent, and that in a few months after the purchase, the appellant gave the appellee notice to quit, and thereupon instituted proceedings before a Justice of the Peace and in a Court of Law, which resulted in a judgment awarding to the appellant as landlord the possession of the premises, because said agreement for a five years’ lease was void at law, where the relationship was treated as a tenancy at will, or from year to year.

The hill then charges that in equity the appellee is entitled to a decree for a specific performance of this agreement for a lease for five years, and to an injunction *80 restraining the appellant from any further proceedings under his judgment of restitution.

The agreement for a lease alleged in the bill, and on which the relief is prayed, is an agreement within the Statute of Frauds, and can only be evidenced in writing, unless there has been something done under it amounting to apart performance so as to take it out of the operation of the statute.

In the case of Spear vs. Orendorf, decided at the present' term, this Court had occasion to consider this subject, and to declare what will constitute a part performance of a parol contract so as to take it out of the statute ? The principles there stated are conclusive of this case. Here, according to the allegations of the bill, there were no acts done which under the well settled rules of law can be construed as a part performance of the alleged agreement.

The appellee as tenant, continued in possession after the purchase by appellant. “This is a mere continuance of the character which he all along filled, and any act which may be thus referred to a title distinct from the agreement cannot be considered as operating to take the case out of the statute.” Brennan vs. Bolton, 2 Drury & Warren, 354.

“In order to make the acts such as a Court of Equity will deem part performance of an agreement within the statute, it is essential that they should clearly appear to be done solely with a view to the agreement being performed.” “For if they are acts which might have been done with other views, they will not take the case out of the statute, since they cannot properly be said to be done by way of part performance of the agreement.” 2 Story’s Eq. Jur., sec. 762. See, also, Wills vs. Stradling, 3 Ves., 381. Frame vs. Dawson, 14 Ves., 386.

Considering that this bill does not present a case entitling *81 the appellee to relief, the order of the Circuit Court must be reversed, and the bill dismissed with costs.

( Decided November 28th, 1866.)

Order reversed and bill dismissed.