154 A. 558 | Md. | 1931
Charles F. Lee and James J. Stehle, who were in the real estate business at Annapolis, purchased from James M. Munroe, by deed dated June 3rd, 1919, a parcel of land fronting about 240 feet on the north side of West Street in Annapolis, running north about 200 feet, and then to the west about 500 feet, where it came to a dead end. Through the center they ran a 30-foot street with 6-foot sidewalks and an 18-foot driveway. The tract is divided into thirty lots, four of them fronting on West Street and twenty-six on Munroe Court, the name given to the subdivision. Two of the lots, Nos. 2 and 33, are at the intersection of West Street and Munroe Court, and two, Nos. 1 and 32, front only on West Street.
By deed dated June 10th, 1921, Lee and Stehle conveyed to Moses Katcef, appellee, and Sarah his wife, since deceased, a parcel of land at the southeast corner of the property, fronting 30 feet on West Street and running north 100 feet; that is, a strip 30 by 70 from lot 34 and 30 feet off the rear or east end of lot 32, making a lot 30 by 100, on which Katcef erected a frame dwelling house which set back 20 feet from West Street. The parcel was sold free of restrictions, but the setback becomes important later on.
By deed dated July 25th, 1921, Lee and Stehle undertook to convey lot 33, and the parts of lot 32 and 34 not previously conveyed, to Katcef, so that the latter then owned the whole of the three lots. This deed recites:
*629"That the said lot of ground is granted and conveyed subject to the following conditions and restrictions:
"1st. That no spirituous or fermented liquors shall be made or sold upon the said ground or buildings to be erected thereon, the same to be used for residence purposes only.
"2nd. That said lot shall never be conveyed, leased or rented to any negro or persons of African descent.
"3rd. That no dwelling or other building, including porches, shall be erected upon said lot or ground within twenty feet from the building line.
"4th. That no dwelling shall be erected on said lot of ground under the cost of thirty-five hundred dollars ($3,500.00) and no double dwelling or wooden fence shall be erected thereon.
"5th. And the said parties of the first part for themselves, their heirs and assigns, hereby agree not to sell, convey, lease or rent any of the lots mentioned in the aforesaid sub-division without the conditions and restrictions under which the said lot hereby conveyed is sold except Lots Nos. 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22, the dwellings to be erected thereon not to cost under twenty-five hundred dollars ($2,500.00)."
On the same day, July 25th, 1921, Katcef and his wife conveyed the property, described in the deed of that date from Lee and Stehle, to Abraham Greengold and Lily Greengold, his wife, "subject nevertheless to all the conditions and restrictions contained in the deed of the property hereby conveyed from Charles F. Lee et al. to Moses Katcef and wife as above referred to." On September 3rd, 1926, Lee and Stehle, in order to correct an error in the description of the deed of July 25th, 1921, made another deed to the Katcefs, which included all of lots 32, 33, and 34, and which contained the conditions and restrictions already quoted, and thus applied them to the first Katcef deed. By deed dated September 8th, 1926, Katcef and wife again conveyed to Greengold and wife the property intended to be conveyed to them on July 25th, 1921, and again subjected the Greengold lots to the conditions and restrictions of the deeds from Lee and Stehle to the Katcefs. By deed of September 26th, 1926, the Greengolds conveyed to Louis N. Phipps and May E., his wife, and they, by deed of February 15th, 1927, conveyed to Dr. J. Oliver Purvis, both deeds reciting that the conveyances were made subject to the conditions and restrictions of the deed from Katcef and wife to the Greengolds.
By deed of February 5th, 1929, Dr. Purvis conveyed to Frank M. Kleis and Anna L. Kleis, his wife, the appellants, "subject, however, to all the conditions and restrictions set *630 out in a deed from Moses Katcef and Sarah Katcef, his wife, dated September 8, 1926" (the deed of correction to the Greengolds). The appellants, disregarding the location and use restrictions, obtained from the City of Annapolis a permit to erect a motion picture theater on the land bought from Dr. Purvis, and had excavated the lot to the level of West Street, when they were enjoined on a bill filed by Moses Katcef to enforce the conditions and restrictions contained in the deeds herein mentioned, and it is from a decree making the injunction perpetual that this appeal is taken.
The question for determination, as stated by the appellants, is, "Are these restrictions operative and effective and will a court of equity enforce them inter sese upon the application of the appellee against the appellants in connection with lot 31 and that portion of lots 32, 33 and 34 now owned by them?" The appellee contends that the restrictions are enforceable against all owners in the Munroe Court subdivision and between the parties as a right reserved by the appellee for the benefit of the parcel of land retained by him. In effect, the position taken by the appellee is that, if the restrictions cannot be sustained as a development plan, they can be as a burden put on the appellants' property by the appellee for the benefit of the latter's land. That this can be done has long and recently been held by this court. Thruston v. Minke,
The appellants insist that the restrictions are invalid because they do not in terms bind the heirs and assigns of any of the parties to the deeds containing the restrictions (Dawson v.Western Maryland Ry. Co.,
As stated in Bealmear v. Tippett,
In distinguishing the covenant in that case from the one inLowes v. Carter,
In the instant case Lee and Stehle covenanted in twenty-three of their deeds "for themselves, their heirs and assigns * * * not to sell, convey, lease or rent any of the lots mentioned in the aforesaid subdivision without the conditions and restrictions under which the said lot is hereby conveyed is sold except" that on lots Nos. 9 to 22, inclusive, no buildings to cost less than $2,500 should be erected. They did not (compare Wood v.Stehrer,
Mr. Tiffany, in Outlines of Real Property, 358, says: "The notice to a purchaser necessary to render the agreement enforceable against him in equity * * * may be either actual or constructive. He is, it seems, charged with notice of anything showing or imposing such a restriction which may be contained in a conveyance in the chain of title under which he claims." In the oft-cited case of Clark v. Martin,
Mr. Lee testified that "the property was not suitable at that time for business purposes and we made an effort first to sell it without restrictions, but the people wanted it for residential purposes and for that reason those restrictions *634 were placed on the property." On the lots the deeds for which contained no restrictions, the houses were set back from 11.6 feet to 27.15 feet; the latter being on lot 31, now owned by the appellants. Eleven houses were set back more than 20 feet from the street line, one, the appellee's, 19.9 feet, five from 15 to 18 1/2 feet, twelve from 12 to 14 feet, and one 2 feet; the last mentioned being located on a circle 75 feet in diameter which cut into the lots at that end of the court 30 feet. It will thus be seen that the buildings erected on the lots have not been located in accordance with the building line restriction, and none of the owners have objected to the erection of any of the dwelling houses as located. With the exception of the erection of one double house in the subdivision, all other restrictions have been observed. So far then, as the building line provision is concerned, it cannot be applied inter sese among the lot owners, but it is otherwise as to the other restrictions, which have been, until the present instance, respected.
But the decision in this case is not dependent on the building plan of the whole subdivision and of every lot therein. It has been decided in this court (Thruston v. Minke,
The appellee bought parts of lots 32 and 33, fronting 30 feet on West Street, on which he erected a dwelling house which met the conditions applied to the subdivision. He later bought lot 34 and parts of lots 32 and 33 with the restrictions, so that he then owned the three lots; these parcels making one lot fronting 74 feet on West Street and 100 feet on Munroe Court. Later Katcef took from Lee and Stehle a deed of correction which imposed all the restrictions on the lot he retained and still owns, as well as on the adjoining lands now owned by the appellants. The situation was disclosed in every deed from Lee and Stehle down to the appellants. The appellants' deed advised them that the property they purchased could only be used for residential purposes. In inserting these provisions, the appellee was protecting his residence against the erection of a business or commercial *636
building next door. Such motives have been expressly upheld by this court. Peabody Heights Co. v. Wilson,
In Clark v. Martin,
Without further prolonging this opinion, we think we have shown sufficient reasons for saying the appellants acquired their property through the appellee charged with the restrictions imposed by him, which are contained in his deed from Lee and Stehle, and that the injunction against the erection of a theater by the appellants was properly granted.
Decree affirmed, with costs. *637