Kleis v. Katcef

⁶²⁸ Sloan, J., delivered the opinion of the Court. Charles F. Lee and James J. Stehle, who were in the real estate business at Annapolis, purchased from James M. Munro'e, 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-sis on Mun-roe Court, the name given to the subdivision.

Two of the lots, FTos. 2 and 33, are at the intersection of West Street and Munro'e Court, and two, FTos. 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: “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. ⁶²⁹ “4th.

That no dwelling shall he 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 he creeled 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 ISTos. 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 wlM conveyed the property, described in the deed of that date from Lee and Stehle, to Abraham Greengold and Ifily Green-gold, Ms wife, “subject nevertheless to all the conditions and restrictions contained in the deed of the property hereby conveyed from Obarles 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 Green-gold 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 K. 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 tlie conditions and restrictions set ⁶³⁰ out iu a deed from Moses Katcef and Sarah Katcef, his wife, dated- September 8, 1926” (the deed of correction to the G-reengolds). 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 lote 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, 32 Md. 487 ; Halle v. Newbold, 69 Md. 265 , 14 A. 662 ; Clem v. Valentine, 155 Md. 19 , 141 A. 710 . 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., 107 Md. 70 , 68 A. 301 ), and that because the conditions imposed in the deed to the appellee and his wife did not extend to their assigns and the heirs and assigns of their survivors, the appellee has no enforceable interest or easement in the lot conveyed to the appellants by Dr. Purvis.

Ringgold v. Denhardt, 136 Md. 136 , 110 A. 321 . This contention, however, is based on the theory that the conditions and restrictions have been so generally disregarded by Lee and Stehle and their grantees that ⁶³¹ they are to be treated as abandoned, and therefore not enforceable by any of the present owners, of lots in the subdivision. As stated in Bealmear v. Tippett, 145 Md. 568, 571, 125 A. 806 , 807: “The essential inquiry is whether there is any existing interest on behalf of which the restrictive covenants-we have mentioned can be enforced in regard to- the property with which we are concerned in this case-. In order to answer that inquiry in the affirmative we should have to discover in the terms of the deeds, or in satisfactory proof of a uniform plan of development, an intention that the covenants should bind all portions of the land.” In Wood v. Stehrer, 119 Md. 143 , 86 A. 128, 129 (followed in Ringgold v. Denhardt, 136 Md. 136 , 110 A. 321 ), Wood’s grantors conveyed to him a lot 50 by 190 feet, in which his deed contained the covenant that “no dwelling house shall be erected or permitted to be erected by himself, his heirs or assigns, at a cost less than $2,500.00; that no- building shall be erected within thirty-five feet of the building line,” etc. The grantors, Roth and Simon, covenanted “that they will not grant, convey, assign or lease any of the ground they now own or shall hereafter acquire in the same locality * * * to anyone except under and subject to the aforesaid restrictions, conditions and limitations,” but they did not require their heirs and assigns-to do likewise.

Later they conveyed to Stehrer, without restrictions, a lot 150 by 190, adjoining the Wood lot. Wood sought a decree to restrain Stehrer from erecting or locating buildings, o-n his lot which did not comply with the restrictions contained in his (Wood’s) deed. In the opinion deny-Wood’s contention, this court said (page 148 of 119 Md., 86 A. 128, 130): “The covenant does not provide that the grantors will use or hold the remainder of the property subject to the same restrictions imposed on the lot conveyed to- the appellant. There is nothing in it which would have prohibited the grantors from erecting s-uch improvements- as Stehrer was about to- erect.

If it was intended to attach to-the land remaining in the- grantors the restrictions, conditions, and limitations imposed on the lot conveyed to appel ⁶³² lant (Wood), surely it would have been so stated; but they ■only covenanted that ‘they will not grant, convey, assign, or lease any of the grounds,’ etc.¿ except under and subject to the aforesaid restrictions, etc. As the covenant does not attempt to regulate the use of the remaining property by the .•grantors, and does not bind or refer to their heirs and assigns, it is not to be presumed that it was intended tO’ include them.” In distinguishing the covenant in that case from the one in Lowes v. Carter, 124 Md. 678 , 93 A. 216, 217 , where, after sales had been made with restrictions, seventeen lots Lad been mortgaged without restrictions, this court said: “The language of the covenant we are now considering admits of no doubt that it was intended to bind the reserved land of •the grantor, not only while he held the title, but also after it .had passed from his ownership. It was declared that ‘each .and every one of the