Opinion of the Court.

Robbins claimed damages against the city for the injury done to his property, and an award of $4098 was afterwards made and paid to the bank, after it came into possession of the property as hereafter mentioned.

On the 10th of September, 1873, Hitz, the president of The German-American Savings Bank, and in its interest, made a contract with Robbins to purchase the whole property, of which the following is a copy:

"WASHINGTON, D. C., September 10th, 1873. "Agreement between Zenas C. Robbins and John Hitz, both of the city of Washington, District of Columbia.

“The said Robbins does hereby agree to sell unto the said Hitz, his heirs or assigns, the real estate at the northwest corner of square numbered four hundred and fifty-six (456) in the city of Washington, D. C., for the sum of one hundred and seventy thousand dollars, said property fronting one hundred (100) feet on Seventh Street and one hundred and twentynine (129) feet four and one half (43) inches, more or less, on F Street. Forty (40) feet on F Street, at the corner of Seventh Street, by one hundred (100) feet, more or less, in depth, is owned by said Robbins in fee. Twenty (20) feet on F Street, by one hundred (100) feet in depth, more or less, is a leasehold, with privilege of purchase, for $10,000.00. Twentythree (23) feet on F Street by one hundred (100) feet in depth, more or less, is a leasehold, with like privilege, for $8000.00. Twenty-three (23) feet on F Street by like depth is leasehold, with like privilege, for $12,000.00. Twenty-three (23) feet four and one half (4) inches on F Street by like depth is leasehold, with like privilege, for $12,000.00. Said sale is to date as October 1st, 1873.

"All taxes upon said property are to be paid by said Robbins, including the taxes for the year ending June 30th, 1873, and all rents up to October 1st, 1873, are to be received by him, provided none of said rents are payable in advance. All rents due on said leasehold property up to said October 1st, and all interest on incumbrances, are to be paid by said Robbins.

Opinion of the Court.

"All rents subsequent to said October 1st are to be received by said Hitz; said Hitz is to assume the incumbrances on said property, viz.:

"Any other incumbrances are to be paid by said Robbins, and the conveyance to said Hitz is to be free from any dower right in the wife of said Robbins.

"The purchase by said Hitz is conditional on his approval of the title to said property and the increase by the GermanAmerican Savings Bank of its capital stock according to law. "Z. C. ROBBINS. [SEAL.] "JOHN HITZ. [SEAL.]"

Robbins in his testimony says that immediately after signing this contract he went to Virginia to visit some friends, and did not return until the first of November, 1873. He says that he then found the Bank in possession of all the property, and proceeds as follows:

"A few days after my return from Virginia Mr. Hitz came to me and made me this proposition: He said that if I preferred to change the sale into a lease of the property perhaps we could make a new negotiation, and he made this proposition that he and his associates, Mr. Mattingly and Mr. Prentiss, would take the property on a ten years' lease; would pay the purchase money under the four leases; would pay the

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VOL. CXXVII-40

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incumbrances of record, amounting to $35,000; would pay me $600 a month during the term of the lease; pay all the taxes that might be assessed on the fee-simple property and leasehold estates, and would relieve me of all care and responsibility, expense, and charges of every name, nature, and description relating to the fee-simple and the leasehold estates during the whole term of the lease, provided I would embody in the lease the privilege of the purchase of my fee-simple property by the lessees for the sum of $93,000 at any time during the term of the lease. Another provision of the contract was, he gave me the option of a conveyance of the four leasehold estates by paying the several amounts of purchase money named in the leases, with eight per cent interest from the date of payment."

Thereupon the first agreement was abandoned, and the following agreement and lease, upon which the present rights and obligations of the parties depend, was entered into. We set it out at large, because it is the foundation of the whole controversy in the present suit, and almost every part of it is important in settling the rights of the litigants:

"This indenture, made this 25th day of October, a.d. 1873, by and between Zenas C. Robbins, of the first part, and John Hitz, William F. Mattingly, and Charles E. Prentiss, of the second part, all of the city of Washington, District of Columbia.

"Whereas the said party of the first part is seized in fee simple of all that certain parcel of land in square numbered four hundred and fifty-six (456), in the city of Washington, D. C., contained within the following metes and bounds: Beginning for the same at the northwest corner of said square and running thence east along the line of F Street forty (40) feet, and running south with this width one hundred (100) feet, it being the same that was conveyed to the said party of the first part by George S. and Juliana Gideon, executors of Jacob Gideon, deceased, by deed dated July 21, 1869, and recorded in Liber D, No. 10, folio 288 et seq., of the land records of the District of Columbia:

"And whereas the said party of the first part has a lease

Opinion of the Court.

hold interest in a certain part of lot numbered fourteen (14) in said square, particularly described in a certain indenture of lease from George S. Gideon, trustee for Catharine C. Gideon, to the said party of the first part, dated November 30, 1864, and duly recorded in Liber N, C. T., No. 52, folio 101 et seq., of said land records, with the privilege of purchasing said property in fee simple for the sum of eight thousand ($8000) dollars, and has also a leasehold interest in a certain other part of said lot numbered fourteen (14), particularly described in a certain indenture of lease from Catharine N. Shanke and John Hitz and wife to the said party of the first part, dated May 31, 1865, and duly recorded in Liber N, C. T., No. 57, folio 456, of said land records, with the privilege of purchasing said property in fee simple for the sum of twelve thousand ($12,000) dollars; and has also a leasehold interest in a certain other portion of said lot fourteen (14) and a part of lot numbered fifteen (15) in said square, particularly described in a certain indenture of lease from George S. and Juliana Gideon, executors of Jacob Gideon, deceased, to the said party of the first part, dated May 31, 1865, and duly recorded in Liber N, C. T., No. 59, folio 128 et seq., of said land records, with the privilege of purchasing said property in fee simple for the sum of twelve thousand ($12,000) dollars; and has also a leasehold interest in a certain part of lot numbered thirteen (13) in said square, particularly described in a certain indenture of lease from George S. Gideon, trustee for Christiana Larner, to the said party of the first part, dated November 30, 1864, and recorded in Liber N, C. T., No. 52, folio 106 et seq., of said land records, with the privilege of purchasing said property in fee simple for the sum of ten thousand ($10,000) dollars, the whole of said property, fee simple, and leasehold interests, having a front on Seventh Street west in said square of one hundred (100) feet and on F Street north of one hundred and twenty-nine (129) feet three and one-half (34) inches:

"Now, therefore, this indenture witnesseth: That the said party of the first part, for and in consideration of the rents, covenants, and agreements hereinafter reserved and contained to be paid down and performed by the said parties of the

Opinion of the Court.

second part and the survivor of them, his heirs, executors. administrators or assigns, does hereby assign, transfer, and set over unto the said parties of the second part and the survivors and survivor of them, his executors, administrators, and assigns, all said leasehold interests in said several parcels of land and said leases, and the unexpired portion of said several terms, together with all the rights and privileges and subject to the obligations in said several leases contained, and does also hereby demise, lease, and to farm let unto the said parties of the second part and the survivors and survivor of them, his executors, administrators, and their and his assigns, all of said parcels of land so held in fee simple as aforesaid by the said party of the first part for the term of ten years from and after the first day of November, A.D. 1873, and thence next ensuing, and fully to be complete and ended, they and he yielding and paying unto the said party of the first part, his heirs and assigns, the sum of six hundred (600) dollars per month on the first day of each and every month during the said term, and observing and performing all and singular the covenants and agreements set forth in these presents on their and his part to be observed and performed; and the said parties of the second part, for themselves and each of their heirs, executors, and administrators, do hereby covenant with the said party of the first part, his heirs and assigns, in manner following, to wit: That they, the said parties of the second part, and the survivors and the survivor of them, his heirs, executors, and administrators and their and his assigns, shall and will pay or cause to be paid said monthly rent as hereinabove stipulated, and shall and will pay and cause to be paid the incumbrances of record against said property, or any portion thereof, the same being two deeds of trust of twenty-five thousand and ten thousand dollars, respectively, and shall and will exercise the said several privileges of purchasing in fee simple granted in said leases by paying or causing to be paid said several amounts of purchase money as provided in said leases, and shall and will pay or cause to be paid all taxes and assessments hereafter levied or imposed upon said property or any portion thereof; and the said party of the first part, for him