A-\ GROUND RENTS IN MARYLAND; WITH AN INTRODUCTION CONCERNING THE TENURE OF LAND UNDER THE PROPRIETARY. BY LEWIS MAYER, Of the Baltimore Bar. WITH AN ARTICLE ON MANORS IN MARYLAND BY JOHN JOHNSON, [K. AND THE RECORD OF THE COURT-BARON AND COURT- LEET OF ST. CLEMENT'S MANOR, REPRINTED FROM THE PUBLICATIONS OF THE JOHNS HOPKINS UNIVERSITY. U ALTI MORE: CUSHINGS & BAILEY. 1883. Entered according to Act of Congress in the year 1883,by OTSHIN&S & BAILEY, in the office of the Librarian of Congress at Washington. PBESS OF ISAAC FEIEPHNWALD, BALTIMORE, ID. PREFACE. A treatise on Ground Rents in Maryland, a form of investment peculiar to this State, and which is now attracting a good deal of attention, it was thought, might prove acceptable to lawyers, students of law, investigators of local institutions, and to those who, from a business point of view or otherwise, might be interested in the matter. The undersigned has accordingly written this little book, in the hope that it may serve its purpose of fur- nishing definite information on the subject in question. As speculation on the origins of all things is now in vogue, an undertaking of this sort would be incom- plete, if it did not offer some suggestions as to the origin of our system of ground rents. It was, there- fore, necessary to make Lord Baltimore's Charter the starting point of the historico-legal portion of the work. From that instrument the tenure of land under the Proprietary is traced and explained; the evolution of ground rents out of that tenure is then shown, and reasons are assigned why they happened to assume their present form. The plan pursued in considering ground rents, was to divide the subject under such heads as were sug- gested by the form of the renewable lease for ninety-nine years, present under each head the appropriate rules of law in this branch of jurisprudence, and follow with decisions of our Court of Appeals as illustrations of the application of those rules. The aim and endeavor have been to produce a handy book containing an accurate and reliable state- ment of the Law of Ground Rents in Maryland. Whether the effort has been successful, must depend on the judgment of the profession. The article by Mr. Johnson, the scion of a family, of eminent Maryland lawyers, and the Record of St. Clement's Manor, in the Appendix, throw much light on the history of manors in the times of the Province. LEWIS MAYER. CONTENTS. TENURE OF LAND UNDER THE PROPRIETARY . g •GROUND RENTS IN MARYLAND: I. ORIGIN OF LEASES FOR NINETY-NINE YEARS RENEWABLE FOREVER . 43 II. FORM OF THE LEASE . * . .51 III. SOB-LEASES 58 IV. ESTATE OF THE LESSOR ..... 62 V. ESTATE OF THE LESSEE ..... 68 VI. RELATION OF LANDLORD AND TENANT . 74 VII. TAXES- 94 VIII. DISTRESS, RE-ENTRY AND ACTIONS ON COVE- NANTS ...gg 99 IX. REDEEMABLE GROUND RENTS . ...120 X, PROHIBITION IN FUTURE OF IRREDEEMABLE GROUND RENTS ..,... 127 APPENDIX : OLD MANORS IN MARYLAND ..... 137 RECORD OF THE COURT-BARON AND CGURT-LEET OF ST. CLEMENT'S M'ANOR ,,.... 15* THE TENURE OF LAND UNDER THE PROPRIETARY. "X-A^ [> THE CHARTER. The source of the tenure of land in Maryland is the charter from Charles I., granting, on the 20th of June, 1632, to Cecil, the second Baron of Baltimore, the territory included within the limits of this State. By virtue of this charter, Lord Baltimore became the owner of the soil of Maryland—literally " monarch of all he surveyed"—absolute lord and proprietary of the province and the head of its government, standing in loco regis. The charter, after granting, with great particularity of description, the lands and waters of the region (erected by it into a province by the name of Mary- . land), and all things contained in them and jurisdiction over them, to the Baron of Baltimore, his heirs and assigns, declared that he should have such authority as the Bishop of Durham ever had within the county pala- tine of Durham. A county palatine was so called in the English law because, as Blackstone explains, the owner thereof had royal rights as fully as the King had in his palace [in palatid). The grant, by thus referring to the greatest privileges that had ever been enjoyed by a sub- ject, conferred powers of the highest nature. These powers are further declared in other parts of the char- ter; such as, to enact laws with the advice, assent and approbation of the freemen of the province, or of their deputies or delegates, to be called together for the framing of laws (in point of fact the Assembly passed the laws, and the proprietary approved or vetoed them without being required to submit them to the King or his privy council) ; to establish courts; to preserve the peace of the province and secure good government; to remit and pardon crimes and offences ; to exact military duty from the inhabitants of the province and wage war against its enemies; to confer favors, rewards and hon- ors, and award titles and dignities; and to enjoy the taxes and subsidies payable in the ports, harbors and creeks within the province, for wares bought and sold, laden or unladen. It was also provided that the Crown should never impose any taxes within the limits of the province. This was equivalent to a disclaimer on the part of the English government of the right of taxing the colony; taxes, nevertheless, were afterwards im- posed, in spite of the charter immunity. What we are especially concerned with, however, are the powers contained in the eighteenth section of "the charter, which granted to the Baron of Baltimore, his heirs and assigns, full and absolute authority to assign, alien, grant, demise or enfeoff the lands of the province in fee simple or fee tail, or for term of life, lives or years; his grantees, "to hold of the Baron of Baltimore, his heirs and assigns, by so many, such and so great services, customs and rents," in free and common socage, as to the Baron of Baltimore 1I should seem fit and agreeable, and not immediately of the King. This section, by a nm-obstante clause, also provided that the statute of Quia Emptores Terrarum (18 Edw. I, c, i) should not apply to the proprietary and his immediate grantees. Kilty's Landholder's Assistant, 28. This statute was intended to prevent subin- feudation by intermediate lords. It had enacted that when a freeman sold his lands and tenements, the alienee should hold the same, not of the alienor, but of the alienor's superior lord, and by the same services and customs by which the lands had been holden by the alienor himself. The power of subinfeudation was perfected in the proprietary by the subsequent section of the charter, which conferred on him the power of erecting tracts or parcels of his lands into manors, cor- responding substantially to the same kind of estates existing in England, with the usual privilege to the lords of such estates of holding a domestic court, called the court-baron, for redressing misdemeanors and nui- sances within the manor, taking the oath of fealty to the lord from the tenants, entering on the court roll the transfers of property and deaths of freeholders, exacting the fines due on transfers of the freeholds and reliefs or heriots due on succession of the heirs, and for settling disputes of property among the tenants. To this was added the power of holding courts-leet, or view of frank-pledge, that is, a taking of security for the good behavior of the tenants and residents on the manor, a species of police court. I 2 Blackstone says (2 vol, 92) that, by reason of the statute Quia Emptores, " all manors existing in England must have existed as early as Edward I," so that Lord Baltimore was empowered to start the system anew in the wilderness, and borrow such immemorial customs of manors in the mother country as suited him. The grants of the proprietary were always held of one of his manors, named in the patents, which maintained the feudal tenure. From the clauses of the charter referred to, it appears that the proprietary was the sole tenant of the Crown and the exclusive landlord of the province ; that the proprietary was empowered to make grants of any estate or interest in his lands, to be holden directly of him by the same species of tenure under which he held the province of the Crown. McMahon's Hist. Md. 167, 168. The charter, in conferring on the proprietary absolute powers and rights within his palatinate, was careful to save to the King the faith and allegiance and sovereign dominion due to him. There were also provisions in the charter for the protection of the emigrants to Mary- land, as subjects and liegemen of the King, and for securing their allegiance to him as lord paramount. In fact, the province was a grand fief or honor held of the Crown by the tenure of free and common socage, then the most favored species of tenure known to the laws of England ; and by fealty only for all services, and not in capiie nor by knight's service. The proprietary> in acknowledgment, was required, by what was then 13 known as the tenure of petit sergeanty, to present to the King at his castle of Windsor, every year, on Tuesday in Easter week, two Indian arrows of the province ; and there was a reservation to the Crown of one-fifth of all gold and silver ore that might be found in the country.