Foreman v. Sadler's Executors

Burke, J., delivered the opinion of the Court. The appeal in this case is from an order of the Circuit Court of Baltimore City hy which a sale of a lot of ground located at the southwest corner of Edmondson avenue and Eighteenth street in Baltimore City made by the appellees, as executors of Warren H. Sadler, deceased, to the appellant was finally ratified and confirmed. The record shows that on the 4th of April, 1895, William A. Oahs and others conveyed to the Lyndhurst Improvement Company of Baltimore City, a corporation, a tract of land containing two hundred and eighty-six acres, more or less, located partly in Baltimore City and partly in Baltimore County, and that on the same day that company executed a purchase money mortgage on the whole tract to the Guardian Security Trust and Deposit Company of Baltimore City to secure an issue of two hundred and forty thousand dollars of six per cent, coupon bonds. On September 18th, 1899, the company conveyed in fee to Esther C. Lambdin three parcels of said land, each parcel being described in the deed by metes and bounds.

The restriction complained' of in this case is found in the habendum clause of this deed, and is as follows: “Provided, however, that the property herein mentioned shall he used only for residence purposes and that each dwelling erected thereon shall not cost less than $4,- ⁵⁷⁶ 000.00) and further provided that no liquors shall be sold on the premises.” Dy deed dated May 16th, 1900, Esther C. Lambdin and husband conveyed in fee to Warren H. Sadler and wife, subject to the same restriction, one of these lots (the lot sold to the appellant), as tenants by the entirety. Mrs. Sadler died before her husband, and by operation of law he became the sole owner of the lot, subject to the legal effect, if any, of the restriction mentioned. The sole claim made by the appellant is that the title to the lot is now subject to the operation and effect of the restrictive covenant contained in the deeds from the Lyndhurst Company to Mrs. Lambdin and •from Mrs. Lambdin and husband to Sadler and wife, and that either of said - grantors could enforce that covenant against him as the grantee of the lot. The only question, therefore, presented by this appeal is: Can the appellees convey to the appellant a title to the lot sold free and clear of the restrictions imposed by the deeds referred to as to the mode of improvement and use of the property?

This restriction did not create a condition subsequent. It has been held repeatedly by decisions of this Court and else- • where that words in a grant indicating the use to which property is to be applied do not of themselves create a condition subsequent. Kilpatrick v. Baltimore, 81 Md. 195 ; Faith v. Bowles, 86 Md. 13 ; Baltimore City v. Day, 89 Md. 555 . It is shown that the Lyndhurst Improvement Company sold and conveyed in fee to various persons parcels of the tract without restrictions of any hind, and that the restriction found in the deed to Mrs. Lambdin is the only one imposed by the company in any of its conveyances.

The mortgage to which we have referred was foreclosed, and all the property owned by the Lyndhurst Company at the date of the foreclosure was sold free and clear of any restrictions. The evidence shows that Mrs. Lambdin in dealing with the property acquired under the deed from the Lyndhurst Company ⁵⁷⁷ violated and disregarded the restrictions in important respects. She sold unimproved portions of the property without restrictions and improved other portions by erecting’ dwelling houses costing less than four thousand dollars, which she sold free of the restrictions. Mrs. Lambdin has disposed of all the property acquired by the deed of September 18th, 1899, from the Lyndhurst Company, except possibly a strip, not connected in any way with the lot sold in these proceedings one foot wide and one hundred and ten feet long.

Upon this state of facts we have no difficulty in affirming the decree of the lower Court. The law upon the subject of restrictive covenants affecting real estate has been fully treated in cases in this Court. Thurston v. Minke, 32 Md. 487 ; Halle v. Newbold, 69 Md. 265 ; Newbold v. Peabody Heights Company, 70 Md. 499 ; Peabody v. Wilson, 82 Md. 186 ; Summers v. Beeler, 90 Md. 474 ; Dawson v. Western Maryland, R. R. Co., 107 Md. 70 . There is nothing in the language of the two deeds (the deed from the Lyndhurst Company to Mrs. Lambdin and the deed from her and her husband to Mr. and Mrs. Sadler) to indicate an intention on the part of the parties to them to confer upon any other persons a right to enforce the restrictions contained in those deeds, and the acts and conduct of the parties respecting the property show that no such right was intended to be conferred.

There are cases where the covenants or restrictions upon the use and enjoyment of the property granted, although exr pressed in such terms as to be binding by way of contract only upon