Bealmear v. Tippett , 145 Md. 568 ( 1924 )

The question raised by exceptions to the ratification of the sale reported in this case is whether the real estate proposed to be conveyed to the purchasers is subject to certain restrictive covenants. The sale was made under an agreement which provided for the release of the purchasers in the event of a judicial determination that the land is not free of such restrictions. The property consists of a tract of land containing about sixteen acres situated on the north side of Liberty Lawn Avenue and the west side of Garrison Avenue in the suburbs of Baltimore. It was sold to the appellants by the appellee, as committee of Rose Leach, who acquired title on April 10, 1919, from St. Raphael's Institute of Providence. The deed to Miss Leach contained restrictive covenants which had also been included in a deed to the Institute from George R. Webb and wife, dated May 16, 1918, and which were to become operative if the land was subdivided into lots, and then only until January 1st, 1930. The land had been conveyed to Mr. Webb from the Forest Park Company by two deeds, one executed on November 6, 1908, and the other on May 16, 1916, in neither of which were there any restrictive provisions.

On the south side of Liberty Lawn Avenue, opposite the land sold in this proceeding, are numerous improved building lots. These were originally included, with the land now in question, in a tract of nearly fifty acres which was conveyed by George R. Webb and wife, in 1905, to the Forest Park Company. The lots to the south of Liberty Lawn Avenue were platted by the company and were conveyed by it to various purchasers subject to restrictions similar in terms and duration to those mentioned in the deeds from St. Raphael's Institute to Miss Leach and from Mr. Webb and wife to the Institute. Every covenant for such restrictions was on the part of the grantor alone and the "grantee, his heirs and assigns." It was declared to run with the land conveyed, but the grantor did not covenant that the use of the remaining land should be similarly restricted. In each deed containing restrictive covenants there was a provision that they were subject to "be at any time in any manner changed with respect to the whole of the said property or any of the lots into which it may be divided * * * with the mutual written consent of the said grantors, their heirs or personal representatives and the owner or owners for the time being of the land to be affected by such change." The Forest Park Company parted with its title to every portion of the original tract referred to, and its corporate existence has been ended by a decree of dissolution. Simultaneously with his conveyance to St. Raphael's Institute of Providence, Mr. Webb agreed in writing to indemnify it against any claim of "purchasers of the Forest Park lots" that the restrictions provided in their deeds should apply also to the property which the Institute had purchased. The agreement stated that the restrictions covenanted in those deeds applied only to the lots thereby conveyed.

The essential inquiry is whether there is any existing interest on behalf of which the restrictive covenants we have mentioned can be enforced in regard to the property with which we are concerned in this case. In order to answer that inquiry in the affirmative we should have to discover in the terms of the deeds, or in satisfactory proof of a uniform plan of development, an intention that the covenants should bind all portions of the land. Beetem v. Garrison, 129 Md. 664. The provisions of the deeds failed to reveal such a purpose. They omit any agreement that the restrictions should bind the grantor's remaining land, or should apply to property other than that granted in each instance, and the covenants on the part of the grantor, in every deed, are strictly individual. Safe Deposit Company v.Flaherty, 91 Md. 489; Wood v. Stehrer, 119 Md. 143; Lowes v. Carter, 124 Md. 678.

There is no common grantor capable of enforcing the restrictions for the benefit of any interest. The Forest Park Company has been dissolved, and Mr. Webb, its predecessor in title and the succeeding owner and grantor of the northern portion of the land, has died, after having divested himself of all his interest in the property. St. Raphael's Institute of Providence, by its conveyance to Miss Leach, terminated its interest in the title now under investigation. Consequently no right of enforcement against the present owner of the northern tract exists under the terms of any of the deeds by which it has been transferred. Foreman v. Sadler's Executors, 114 Md. 574;Boyd v. Park Realty Company, 137 Md. 36. The fact that some of the deeds for the tract north of Liberty Lawn Avenue include restrictions like those provided by the deeds for lots to the south of the avenue is not a sufficient indication that the covenants were intended to be reciprocally enforceable by the respective grantees. Boyd v. Park RealtyCompany, supra; Ringgold v. Denhardt, 136 Md. 136; Summers v. Beeler, 90 Md. 474.

There is no satisfactory proof of any such uniformity of plan for the development of the lands on the north and south sides of Liberty Lawn Avenue as to entitle the southern lot-holders to enforce the restrictive covenants of the deeds for the land to the north of the dividing thoroughfare. The disposition of the northern area was not in conformity with the plan of development for the part of the tract lying to the south. That portion was subdivided into lots which were sold and used for ordinary residence purposes, while there was no such subdivision of the sixteen acre tract to the north, and it was conveyed to St. Raphael's Institute of Providence to be used, contrary to one of the restrictions, for its corporate purpose of maintaining an Orphan Asylum. While the deed to the Institute provided for restrictions like those specified for the lots south of the avenue, yet its grantor simultaneously agreed in writing that the use of the land he was then conveying should not be subject to those limitations. This was in effect an exercise of the right of modification which the deed reserved. In view of the fact that every deed imposing restrictions contains such a reservation, which permits changes of plan as to the improvement and use of any lot by agreement of the grantor with its owner, it can hardly be said that a definite and uniform plan of development of the remaining land was assured to the grantee in any deed.

It was provided in the deeds from Mr. Webb to St. Raphael's Institute of Providence, and in its deed to Miss Leach, that if the land thereby conveyed should be subdivided into lots, "the roads, avenues, streets or alleys and pavements, curbing and gutters shall be laid out, opened, graded, macadamized, paved and constructed to conform with the construction, workmanship and material, and with the lines and dimensions of the roads, avenues, streets or alleys and pavements, curbing and gutters as now laid out and constructed on the adjoining land of the Forest Park Company * * *." This provision is said to show a uniform design for the development of the tracts on both sides of Liberty Lawn Avenue. There was uniformity also in the other restrictive provisions, but, as applicable to the land in litigation, they were to be effective only in the event of its subdivision into lots prior to 1930. Even if that event occurred, the restrictions were subject to modification by agreement of the owner and the grantor, or his successors, without reference to any other property interests, and they were actually so modified, as already noted.

The grantees of the other lots could not enforce the restrictions covenanted in the deeds for the land purchased by the appellant unless there was a general plan of improvement adopted for the whole tract of which their lots had formed a part, and their purchases were made and their deeds accepted in reliance upon the execution of such a design. Boyd v. ParkReally Company, Ringgold v. Denhardt, Summers v. Beeler,supra. In this case no purpose was manifested by the common grantor that the northern and southern portions of the original tract should be developed according to a uniform plan. The use for which the land north of the avenue was conveyed, without subdivision, differed greatly from the purposes for which the other land was subdivided, developed and sold. The contractual and other conditions proved in the case do not support the theory of a general and uniform plan upon which the right of the other grantees to enforce the covenants of the deeds for the land involved in this proceeding might be asserted.

The record shows that Mr. Webb, the grantee, who first provided for restrictions on the northern part of the land, was owner of nearly all of the capital stock of the Forest Park Company, which granted the southern lots subject to similar restrictions, and his control of the company is said to indicate a community of purpose in reference to the entire development. It is not necessary to determine how far that consideration is material, since our view of the case would be the same if the Forest Park Company itself had made the conveyance by which the present owner's title was vested.

Reference is made in the record to violations of the restrictions imposed upon the lots south of Liberty Lawn Avenue; and a decision that they were unenforceable against the purchasers of lots in that area is said to have been rendered by Circuit Court No. 2 of Baltimore City. It is not our duty to express in this case any opinion as to the rights of the owners of such lots to enforce the restrictive covenants among themselves, and we decide only that they were not entitled to enforce the restrictions against the land which is the subject of the sale reported in this case, and that the exceptions to the ratification of the sale were properly overruled.

Order affirmed, with costs.