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, 10 Sup. Ct. 557, 33 L. Ed. 918, in passing upon a Nebraska statute, and dealing with the right of the state to provide for notice to nonresident 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 nonresident 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." Section 117, art. 16, Code Pub. Gen. Laws 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 nonresidents, of the substance and object of such bill or petition, and warning them to appear by a day therein

stated."

Section 127 of article 16 provides how the notice shall be given, and section 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 nonresident 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 not in personam. Miller's Equity Procedure, 120; White v. White, 7 Gill. & J. (Md.) 208; 22 Am. & Eng. Ency. of Law, 917; Phelps on Juridical Equity, §§ 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 $36 "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

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 ap pear," 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 $36, 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. Meshaw v. Meshaw, 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 nonresident. 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, § 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 or 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 $36, 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, etc., 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

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 abovenamed defendants, and trustee in the case of Edward Hollander 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," etc.; that the plaintiff notified the nonresident 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

from the original lessees down to the plain. tiff, 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 Lead. Cas. (11th Ed.) 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 adminis trators of every assignee; for all are comprised within this word (assignees), for the same right wbich 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 Pleading (5th Ed.) § 28; Miller's Equity Procedure, § 92; Phelps on Juridical Equity, §§ 49, 55; Meshaw v. Meshaw, 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.. (5th Ed.) §§ 788-790, 714, 715, 791; Worthington v. Lee, supra.

to

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 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 val ue 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, § 84; Laffan v. Naglee, 9 Cal. 662, 70 Am. Dec. 678; Robinson v. Perry, 21 Ga. 183, 68 Am. Dec. 455; Kerr v. Day, 14 Pa. 112, 53 Am. Dec. 526; Hagar v. Buck, 44 Vt. 285, 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, 57 Atl. 609, 58 Atl. 36, 66 L. R. A. 408, in Lewis 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 (2d Ed.) § 230, 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 section 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 of covenants for renewal is either an exception which there is no reason to extend, or is to be explained, as it is in section 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 appel

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 pay. ment 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 99 years, but a term for 99 years with the right 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 in Taylor'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 in Latrobe's Justices' Practice [7th Ed.] pp. 463, 464, and Carey'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. In Banks V. Haskie, 45 Md. 207, where a bill was filed for specific performance of a covenant for renewal in a lease for 99 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 as safe investments of capital. It is a peculiar de