Charles T. Maddox and Adolph Aur vs. John White, 4 Md. 72

Ecclestos, J., delivered the opinion of this court. The bill in this case was filed on the equity side of Baltimore county court, by the appellee against the appellants. It states that the complainant, as the owner of a building in the city of Baltimore, which for some time had been, and still was, used as a post office, on the first day of June 1848, demised several apartments of the building to James M. Buchanan, then postmaster of the United States for the city of Baltimore. The demise being for the term of four years from the 1st of July ensuing.

That it was stipulated that the premises should be used as the Baltimore post office ; and that at the expiration of the term, the premises should be restored to the possession of the complainant, in the order and condition they were when demised, reasonable wear and tear excepted.

That in virtue of this contract Buchanan, as postmaster, entered upon or retained possession of the premises, and continued to use the same for the purposes of a post office, from the 1st of July 1848, until some time during the year after; ■when he resigned or was removed from the office of postmaster, and the defendant, Maddox, was appointed his successor.

Whereupon Maddox, as postmaster, and in virtue thereof, assignee of Buchanan, entered upon the premises, and was accepted as tenant of the same, by the complainant, and occupied the demised property as a post office until about the month of August 1851, at which time Maddox removed the post office, and placed the premises, or the principal part thereof, in the possession of the defendant Aur, with directions or authority to the said Aur, to convert and use the same for the purposes of a beer establishment, or depot for the sale of beer and other fermented liquors.

And the bill avers, that at the time of filing the same, Aur, claiming as assignee of Maddox, was actually engaged in tearing down partitions and committing other material waste and injury to the properly, and making alterations in the arrangement thereof, with a view of fitting it up for the purposes of preparing and selling beer and other fermented liquors ; and that he avowed his purpose of establishing and opening a depot or place for sale of such liquors, as soon as he could make the necessary alterations- And the complainant insists, that by the terms of the agreement, the demised premises were to be used as a post office exclusively, and the appropriation thereof to a different purpose, would be a fraud on the agreement; that the alterations proposed to be made would materially injure the property, and lessen its value, and directly violate the stipulation requiring the premises to be restored in like order and condition as at the time of the demise j that the conversion thereof to the purposes intended by Aur, would be exceedingly offensive and a nuisance to the complainant and his family, who reside in an adjacent building, and to his tenants occupying parts of the same building ; and he apprehended he would lose those tenants and be compelled to leave the premises occupied by them vacant, or appropriate them to other purposes.

The bill prays for an injunction to restrain the defendants from using the demised property for any other purposes than those of a post office — and especially from altering or changing the order or condition thereof, by tearing down partitions or other fixtures, or making repairs or erections thereon, to fit the same for the purposes of a depot, for the manufacture, preparation or sale of beer, or other fermented liquors, or committing other waste or injury to the premises.

An injunction was granted, and then the defendants appeared and filed a demurrer to the bill, assigning for cause of demurrer the following reasons. 1st. That the complainant has not stated such a case in his bill as entitles him to the injunction or relief prayed for against the defendants. 2nd. That if the matters stated entitle the complainant to any relief against the defendants, his remedy is at law and not in equity. 3rd. That according to the complainants own showing the .Postmaster General of the United States and the United States should have been made parties.

After argument the court below overruled the demurrer and ordered the defendants to answer. From this order and also from the order granting the injunction this appeal is taken. Believing the appellee entitled to an affirmance on the merits, we deem it unneccessary to notice the preliminary questions, presented on hisjpart, in regard to the regularity of the appeal. On behalf of the appellants, in relation to the first and second grounds of demurrer, it was contended, that there was no privity between the complainant and defendants ,• but more especially so in reference to Aur.

That his acts complained of were those of a stranger and mere trespasser, which would not authorise the interposition of acourtof equity, by an injunction; but if the complainant Was entitled to relief his remedy could only be-at law.- It was conceded by the appellant’s counsel, that a landlord, by injunction, could restrain injuries to his property, committed, or about to be committed by his tenant, when for similar acts by a stranger he could not have such relief.

That a lessor may, by injunction, prevent his lessee, or those claiming or holding under him, or acting by his authority, from converting the demised premises to uses inconsistent with the terms of the contract, and from making material alterations for such purposes, as also from committing other kinds of waste, will be found fully sustained by, 5 Ves., 555. 1 John. Ch. R., 435, and 4 Sandf. Ch. R., 587. Which authorities are referred to by the court below. See also Eden on Injunctions, 377 and 378, and 2 Story’s Eq., sec., 913.

As this case comes before us upon demurrer, we are to consider all the averments in the bill as true. And under the allegations therein contained, in connection with the exhibit therewith filed, we cannot consider either of the defendants as a stranger and mere trespasser, in the view insisted upon by appellants, but we agree with the county court in thinking the principles established in the authorities referred to are applicable to this case. Nor was there any error in overruling the third objection presented by the demurrer. The United States and the Postmaster General were not necessary parties.

No injury was done to the complainant by them or either of them, which it was important for him to restrain by the injunction, nor had he any ground on which to ask relief against them. In the case of Barret vs. Blagrave, 5 Ves., 555, a sub-lessee, or rather his wife, during his insanity, was violating a stipulation contained in the original lease ; which the lord chancellor restrained by injunction. The bill did not make the original lessees parties, but the sub-lessee and his wife were the only defendants.

The orders of the county court will be affirmed with costs to the appellee, and a decree will be signed to that effect, and remanding the cause for further proceedings. Orders affirmed and cause remanded.