Bealmear v. James

Offutt, J., delivered the opinion of the Court. Loader James and Elizabeth, his wife, on October 26th, 1922, entered into a written contract with Cleveland B. Bealmear for the sale of a lot of ground at the southwest corner of Boland Avenue and Merryman’s Lane, in what is now known ns Hampden, in that portion of Baltimore 'City known as the Old Annex. The contract contained a provision reading -as follows: “It is understood there is no title restriction or zoning restrictions as to store-front improvements on said lot.” The vendee refused to comply with the terms of the contract on the ground that the lot in question was subject to certain building restrictions known as the “Hampden Association restrictions” established and provided for by the constitution and by-laws of the Hampden Association. The vendors contend that these restrictions have long since been abandoned and did not at the time of the contract affect the property in question.

The vendors, relying upon that theory, filed in Circuit 'Court Ho. 2 of Baltimore City their bill of complaint against the vendee, setting out the facts to which we have referred and asking for a specific performance of the contract of sale. The vendee answered setting up as ²⁷⁶ a -defense to the suit the restrictions referred to and tes'ti-. mony was taken in connection with these pleadings. At its-conclusion' the court decreed that the contract of, sale he specifically enforced and from that decree this appeal has been taken.- It appears from the evidence that in or about 1857, in a ease pending in the Circuit Court for- B'altimore County between John ET. MoJilton and others and Sarah A. Mankin and others, an instrument Called the constitution of theHampden Association was filed.

Just what that suit was, or in what- connection the instrument referred to was filed, or what rights the persons executing it or assenting to it had. at that time to encumber the property referred 'to in it, doe-snot appear. It 'does appear, however, from the instrument itself that the purpose of the association was the purchase of about four hundred and fifty acres of ground, then known as the property of Gen. Harry Mankin, which includes a large part of what is now the town of Hampden, a part of Baltimore City, and by that constitution that property was-i o be laid off in -streets and -avenues and lot-s, and all the lot-s-were to be subject to these restrictions; that is, the buildings-to be erected on the lots were to be set back at least twenty feet from the line of Central Avenue, no-w known as Boland Avenue, and the portions of other avenues eighty feet wide- and fifteen feet from the line of narrower avenues, and no-slaughter house or anything that might be regarded by the-trustees as a nuisance was to be allowed on the premises, nor-any distillery or manufactory of lager beer or other liquor,, nor place for the sale of intoxicating liquors. These restrictions are said to'- have been embodied in the deeds to the purchasers of the several lots into -which the-whole tract was -divided, but how the covenants ran or to-whom they ran or in what form they were is not disclosed.

It is not contended, however, that these covenants-were not valid, or that they did not run with the land,, or that the several lot holders were not privileged to insist upon their observance inter sese. Manifestly we could not ²⁷⁷ pass upon those questions upon the facts before us and for the purpose of this opinion', but without so deciding, we will assume that these covenants' were valid -and enforceable inter stse by the purchasers of the loto into which the Manikin property was divided. The real contention of the vendors was that these restrictions had been abandoned and that the lot owners had so far and so long acquiesced in a disregard of' the restrictions that they cannot now be heard to insist upon their enforcement. The evidence in the case, including a number of photographs, shows that the restriction which required buildings on lots on Central, or Roland Avenue, as it is now known, to be at least twenty feet from the street, has been in a number of instances violated, but oil the othe'r hand it shows that in