Halle v. Newbold

Stone, J., delivered the opinion of the Court. In 1855 the heirs of Caroline Donaldson owned in fee a tract of land lying on Fulton street, in Baltimore City. Thomas Donaldson, who was one of the heirs of Caroline Donaldson, toot in 1855 a deedfronithe other heirs, for a lot on Fulton street to'himself in severalty. In the deed from the other heirs’of Caroline Donaldson to Thomas Donaldson there is this covenant: “And the said parties of the first part (the grantors) hereto, for themselves, their heirs, executors, adminis-. ²⁶⁸ trators and assigns do hereby covenant with the said Thomas Donaldson, his heirs and assigns, that no improvement shall be built upon any of the lots now belonging to the parties to these presents, and binding upon said-Fulton street, inferior to that which George JB.

Taylor and John W. Jevens have contracted with the party of the second part hereto (Thomas Donaldson) severally to erect on the piece of ground herein before described and conveyed, which said party of the second part has contracted to sell in two lots of equal size to said Taylor and Jevens, to wit: a house not less than twenty feet on said Fulton street, and of proportionate depth, and three stories in height, or a cottage equal in value, as an improvement to such a house as that just described.” Thomas Donaldson subsequently died, leaving Mary E. P. Donaldson, his wife, all his real estate for life with full power of sale. In March, 1888, the said Mary E. P. Donaldson and the other heirs of Caroline sold and conveyed a lot of land on Fulton street to Daniel M. Newbold in fee “subject, however, to the operation and legal effect, if any, of the covenants contained in a deed from John J. Donaldson, et al., to Thomas Donaldson, recorded among the land records of Baltimore City aforesaid, in Liber E.. D., No. 99, folio 162, &c., and of-the covenant between John J. Donaldson, etal., and John W. Jevens, et al., recorded among the land records aforesaid in Liber G. E. S., No. 185, folio 252, &c.” Newbold subsequently leased a part of said lot fronting fourteen feet eight inches on Fulton street to George H. Callis, and then sold the rent reserved in said lease to Philip Halle, the appellant, to whom he guaranteed a clear title. The question of the effect and operation of the covenant in the deed of 1855, from the heirs of Caroline ²⁶⁹ Donaldson to Thomas Donaldson is the one presented for our determination.

It is apparent from the above statement of facts, that if the covenant in the deed of 1855 from John J. Donaldson and others, to Thomas Donaldson is effective either because it runs with the land, or can be enforced by a Court of equity as an easement or servitude, the title is not clear, but encumbered with conditions that may most materially affect the value of the lot. A house twenty feet front cannot be built on a lot of fourteen feet eight inches, and the purchaser has only the choice between leaving the lot unimproved, or purchasing the right to build a house of less frontage, by procuring a release of the condition. We cannot distinguish this case in principle from the case of Thruston vs. Minke & Humbird, 32 Md., 487 . In that case Thruston and Minke were tenants in common of a hotel and a vacant lot adjoining in the town of Cumberland, Thruston owning one-fourth and Minke three-fourths of the property.

Thruston leased to Minke for a long period his interest in the vacant or unimproved part of the property. It was provided in the lease that the lessee should not erect any building on the vacant lot which should be higher than the present level of the third story floor of the hotel building. Thruston filed a bill in equity alleging that Minke was about to construct a building on the vacant lot higher than was permitted by the covenant in the lease, and praying for an injunction. This Court decided that the effect of the condition in the lease was to create iCa right or interest in the nature of an incorporeal hereditament, or easement, appurtenant to the contiguous hotel property, and