Every evening, Wilmington daily commercial., 1906-03-08
SECOND EDITION
DEMURRER OVERRULED
In tbe Suit for the Possession
Of the Property 10. 42O
Market Street
IN THE GHANCERY COURT
an Important Decision Handed Down
This Morning.
INTERESTING POINTS INVOLVED
A Lease Held to Conflict With
a Sale.
COMPLICATION FOLLOWS DEATH
an Important Decision Handed Down
This Morning.
INTERESTING POINTS INVOLVED
A Lease Held to Conflict with
a Sale.
COMPLICATION FOLLOWS DEATH

Chancellor Nicholson today handed
down q decision in the case of Elias S. r.
Butler and Walter l.. Butler. trading as
Z. 5. r. Butler & Son vs. William Topllis
Charles Iopkis, James P. Laskaris and
James G. Laskaris, which involved sew
eral interesting points of law.
The Chancellor, in his decision, over
rules the demurrer of the respondents.
The case was argued before the Chan
cellor some weeks ago by Harry Emmons
and Anthony Higgins, solicitors for the
complainants, and Harry P. Joslyn and
William 5. Hilles for the respondent
The question at issue is over the pos
session OF the property No. APO Market
street, which for many years was occupied
by +. ;. X. Butler 4 Son. The Chancellor
in his decision says:
The bill in this cause was filed by the
eomplainants, lessees Of the late Mrs.
Margaret Jones Iinges, trustee under
the will OF Margaret Ross Jones, deceased,
10 restrain William Iopkis and Charles
Topkis two Of the respondents from
proceeding further in certain suit in
stituted by them before Justice of the
peace against the said complainants and
James P. and James G. Laskaris for an
alleged holding over after notice to quit
the Market street property.
The said William Topkis and Charles
1opks have demurred to the bill and
therefore the questions involved, which
are very interesting are presented free
from the embarrassment of conflicting
testimony and troublesome issues Of
facts. The facts of the case as set out in
the decision are as follows:
The property came to Mrs. Tinges under
the win OF the late Margaret Ross Jones.
who died in 1890 and who was Mrs.
Iinges' aunt. At the death of Mrs.
Tinges in 1895, the property under the
will OF Mrs. Jones went to the children
Of Margaret Tinges and Leroy Webster,
Samuel g. Patterson and Amelia Webster,
with the Security Trust and Safe Deposit
Co as trustee.
In 1892 Mrs. Tinges negotiated with
the firm of Butler & Son to sell the prop
erty but on account of flaw in the title
the sale was not made. She then made
lease with Butler & Son for Is years
commencing on March 25th, 1892, and to
end on March 25th, 1907, for the net
rental of $3.50 a year; the lessee TO pay
all taxes, insurance and water rent and
10 do all repairs. The property was also
improved by the lessee at a cost of 81 600
Mrs. Tinges, the trustee. died June 9th,
1898, in her seth year, with nearly nine
years Of the lease still to run, and the
Security Trust and Safe Deposit Co.
thereupon assumed the duties Of trustee
and from that time on continued to re-
ceive the rents as they fell due under the
lea for about six years until the 25th
day OF December, 1904, at which time
the property had been conveyed to VIII
liam and Charles Topkis by deed dated
December 23d, 1904 it having been sold
TO them at public sale on the 9th day Of
June, 1904. II is not explained how the
flaw in the title was disposed Of.
August 18th, 1904, L. S. r. Butler
Son sub-let the property to James p. anC
James G.. Lasbaris for the balance of theil
term, and have made them defendants
in the bill because Of their refusal to ioir
with them as compainants. The pur
chasers notified both the complainant
and Laskaris, who is now in possession o
the property, to vacate by March 25th
1905, and subsequently commenced sum
mary proceedings against them unde
the provisions of the statute for tenant
holding over after notice to quit, beior
Alton G. Pyle, justice of the peace.
Upon the filing of the bill a restraining
order was granted and a demurrer wa
filed on May Sth, 1905. The respondent
sale contained in the will did not includ
power to lease, and that therefore Mrs
hinges, the trustee, had no power to max
a lease extending beyond her benefcia
life estate, although she had the Who'll
legal estate.
In his decision Chancellor Nicholso
says: Much has been said in the argr
ment in respect TO the nature of summar
possessory proceedings before a justic
Of the peace, and upon the questio
whether there is jurisdiction in this coul
10 restrain proceedings under the statut
for holding over or forcible entery an,
detainer, but l can see no ground upo
which such proceedings can be excepte
from the general rules governing the n
lation Of courts Of equity to legal PR
ceedings in general.
In concluding he says: "The con
Plainants in this cause have by the
bill made such a case as entities thel
to relief and that therefore the demurrC
must be overruled."