First United Pentecostal Church v. Seibert

Thompson, J., delivered the opinion of the Court. In this case the complainants-appellees sought to enjoin The First United Pentecostal Church of Hagerstown, appellant, from operating a church in a converted dwelling house which had been recently purchased by the church. The case turns upon who has the right to enforce agreements restricting the use of real property. We conclude that the complainants failed to show that any of them were proper persons to enforce the equitable servitudes involved herein and therefore we reverse a decree of the Circuit Court for Washington County granting the requested injunction.

On March 14, 1913, by deed from Lewis J. Orrick, committee, an approximately 187 acre tract of land was granted to Charles E. Hammond. The land was shown on a plat entitled “Prospect Place” and is located in or near the corporate limits of Hagerstown, Maryland. This information was supplied by the briefs. The deed is not in the record.

The plat, however, was introduced into evidence and shows that the tract, divided into 476 numbered building lots and ten other large lots designated A through J, lies to the north side of South Prospect Street, which despite its name runs in an ⁴³⁶ east-west direction. The lettered parcels of land lie to the extreme northern portion of the plat and the lowered numbered lots lie to the south. In the center of the plat is Linwood Road, which runs north and south. In the southern most sector of the plat lies Sherman Avenue which runs east and west parallel to and one block north of South Prospect Street.

The next street running east and west is Wellington Avenue which is a very long block north of Sherman Avenue. The precise lot with which we are concerned in these proceedings is numbered 161 and lies at the southeast corner of Linwood Avenue and Wellington Avenue. Only a few of the conveyances from Mr. Hammond were introduced into evidence. We will summarize those in chronological order: By deed dated October 29, 1913, Mr. Hammond conveyed three (3) lots, numbered 166, 167 and 168, to David Durben. 1 The deed contained the following restrictions: “The grantees upon the acceptance of this Deed for themselves their heirs, successors and assigns, covenant as follows: 1.

That no factory or saloon, of any kind hospital asylum and no institution of kindred nature and no charitable institution shall be erected or maintained on the premises hereby conveyed. 2. That there shall not at any time be more than two residences on any lot of fifty (50) feet. 3. That no single residence or dwelling house shall be erected on any lot of fifty (50) feet costing less than $1500.00 and no double house on such lot costing less than $2000.00 and that no old building for residence purposes be moved upon or erected on the property hereby purchased. 4. That no residence or dwelling house will be erected or kept on the said land wholly or within 25 feet of the curb line of Linwood Road said condition not to apply to verandas or porches. 5.

The said Charles E. Hammond hereby reserves all right title and ⁴³⁷ interest in and to the trees now planted on said Linwood Road the said grantees hereby promise not to mutilate said trees in any way whatsoever nor to uproot them. 7. That a proper grade will be furnished by the grantor herein and accepted by the grantees for a distance not exceeding the building line herein named. 9. That said lots shall never be sold or leased to any person or persons of African Descent.” 2 On May 9, 1917, Mr. Hammond conveyed to Clarence V. Eldridge, 3 the bulk of the platted land, approximately 319 lots and all ten lettered blocks comprising 138.4 acres, by metes and bounds descriptions rather than by lot numbers. Of these 329 pieces of property only 32 lots were restricted by the following language: “The grantee upon the acceptance of this deed for himself, his heirs and assigns, covenants with the grantor, his heirs and assigns, that upon the building lots designated as lots Nos. 26, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 214, 215, 217, and 218 as designated upon the plat of “PROSPECT PLACE” recorded in Plat Book 1 Folio 114, one of the land records of Washington County and included in the property hereinbefore granted, the following restrictions and conditions will be observed, to wit: — 1.

That no shop, store, factory, saloon or business house of any kind, no hospital, asylum and no institution of kindred nature and no charitable institution shall be erected or maintained on any of the said lots hereby conveyed, but that any ⁴³⁸ improvements which may be hereinafter erected on the said premises shall be used and occupied for residence purposes only and not otherwise. 2. There shall not at any time be more than two residences on any lot of fifty (50) feet. 3. That no single residence or dwelling house shall be hereafter erected on any lot of fifty (50) feet costing less than $1500.00 and no double house on such lot costing less than $2500.00 and that no old building for residence purposes shall hereafter be moved upon or erected on the property hereby purchased. As to lot #26 limits to be $2500 and $3500 respectively. 4.

That the fifty (50) feet building line as shown on the plat hereinbefore referred to will be observed. 5. That no stable, chicken-house, closet, or any other outbuildings shall be hereafter placed on said lot that will be objectionable or unsightly, but that all objectionable features will be concealed by the grantees, to the best of their ability. 6. That said lots shall never be sold or leased to any person or persons of African Descent.” Therefore, as shown by this record, after these conveyances, Mr. Hammond retained all but one of the lots on South Prospect Street, all of the lots on the south side of Sherman Avenue and all lots to the east of Linwood Avenue and south of a stone quarry, which was not owned by him but which bordered on the east side of Linwood Road. On December 14, 1918, Mr. Hammond conveyed to Clarence V. Eldridge 4 42 lots numbered 161-165, 175-184, and 187-213, comprising approximately 15.73 acres, by metes and bounds description.

None of the lots were restricted. This tract lying to the east of Linwood Avenue, south of the quarry, and to the north of lots 82-100, included lot no. 161 with which we are primarily concerned in these proceedings. ⁴³⁹ We now turn to explicate the specific genesis of title to lot no. 161. In the 1918 conveyance from Hammond to Eldridge lot no. 161, among other lots, was conveyed without restriction by a general warranty deed giving further assurances in which the grantor stated: “I have done no act to encumber said property.” On January 15, 1923, Charles A. Eldridge and wife and Russell A. Eldridge and wife conveyed lot no. 161 to Industrial Service and Sales Corporation. The lot was further conveyed on April 27, 1925 by Industrial Service and Sales Corporation and Hyman Kushel, Trustee, to Carl Ridenour and his wife.

In this conveyance, the grantor conveyed by general warranty deed giving further assurances that he had done no act to encumber said land which was expressly subject to the following conditions and restrictions imposed by the grantor without reference to whether or not they would bind the successors of either party to the deed or inure to the benefit of other purchasers in the development: “1. That the land hereby conveyed shall be used for residence purposes only. 2. That the building line shown on the plat hereinafter referred to, being 50 feet inside of the front line, will be strictly observed. 3. That no residence is to be erected on any lot hereby conveyed other than a single or double dwelling house. 4.

That no dwelling house shall be erected on any 50 foot lot costing less than $3500.00. 5. That no dwelling will be erected facing or adjoining any of the 15 foot alleys. 6. That this property shall never be sold or leased, to any person not a member of the Caucasian race.” The appellant church was conveyed lot no. 161 by deed dated March 16, 1973, from Hazel M. Coleman, widow. It contained a recital as follows: “The above described property is conveyed subject to the conditions and restrictions contained in the deed from Industrial Service and Sales Corporation ⁴⁴⁰ to Carl Ridenour and wife dated April 27, 1925 and duly recorded. ...” Whether the appellees are proper parties to seek enforcement of the restrictions presents our threshold question.

Under historic property concepts, a restrictive covenant could be enforced by the parties thereto, but only where it was found that the covenant ran with the land and the successors were in privity of estate with the original covenantor or covenantee could successors to the original parties enforce the covenant. This ancient doctrine has given way to more modern theories in which suits for enforcement are brought in courts of equity which do not require privity of estate. R. Reno, The Enforcement of Equitable Servitudes In Land, 28 Va. L. Rev. 951 , 973 (1942).

In Maryland, it has long been recognized that courts of equity, under appropriate facts, will enforce restrictive agreements, albeit under varied terminology, e.g., reciprocal negative easements, implied equitable reciprocal servitudes or merely equities attached to land. Turner v. Brocato, 206 Md. 336, 346 , 111 A.2d 855 (1955). See C. Clark, Real Covenants and Other Interests Which “Run with Land ” 170-86 (2d ed. 1947); but see 3 Tiffany, The Law of Real Property § 861 (1939). Though modern courts have refused to be bound by technical rules in determining the right to enforce such restrictive agreements in courts of equity, they always have required that the covenant be made with or for the benefit of the party seeking to enforce it.

Clem v. Valentine, 155 Md. 19, 25 , 141 A. 710 (1928). Who was intended to benefit from the covenant, with the correlative right to enforce the /restrictions, presents a fact question which turns upon the intention of the original parties to the agreement. Club Manor v. Oheb Shalom Congregation, 211 Md. 465, 475 , 128 A. 2d 405 (1957). See Restatement of Property § 544 (1944); Annot., 51 A.L.R.3d 556 , 567 (1973).

The intent of the covenantor and covenantee is manifested in either of two mutually exclusive situations. In one, the intent is that the agreement apply exclusively to the original ⁴⁴¹ parties — a personal covenant. In the other, the covenant may be intended to flow to the subsequent purchasers of other lots or tracts of land — a covenant running with the land. The law in this area was clearly stated in McKenrick v. Savings Bank of Baltimore, 174 Md. 118, 128 , 197 A. 580 (1938), quoted in Turner v. Brocato, supra at 345-46: “ ‘These cases sufficiently establish as the law of this state these principles: That one owning a tract of land, in granting a part thereof, may validly impose upon the part granted restrictions upon the use thereof for the benefit of the part retained, and upon the part retained for the benefit of the part granted, or upon both for the benefit of both; that, where the covenants in the conveyance are not expressly for or on behalf of the grantor, his heirs and assigns, they are personal and will not run with the land, but that, if in such a case it appears that it was the intention of the grantors that the restrictions were part of a uniform general scheme or plan of development and use which should affect the land granted and the land retained alike, they may be enforced in equity; that covenants creating restrictions are to be construed strictly in favor of the freedom of the land, and against the person in whose favor they are made; and that the burden is upon one seeking to enforce such restrictions, where they are not specifically expressed in a deed, to show by clear and satisfactory proof that the common grantor intended that they should affect the land retained as a part of a uniform general scheme of development.’ ” For a further expression of the same principles: “ ‘Where the same vendor, selling to several persons plots of land, parts of a larger property, exacts from each of them covenants imposing restrictions upon the use of the plots sold, without putting himself under any corresponding obligation, it is a question of fact whether the ⁴⁴² restrictions are merely matters of agreement between the vendor himself and his vendees, imposed for his own benefit and protection, or are meant by him, and are understood by the buyers, to be for the common advantage of the several purchasers.

If the restrictive covenants are simply for the benefit of the vendor, purchasers of other plots of land from the vendor cannot claim to take advantage of them. * * * “ ‘The question whether it is intended [that] each of the purchasers shall be liable, in respect of those restrictive