Levy v. Dundalk Co.

Parke, J., delivered the opinion of the Court. The pending appeal in the cause brings up for determination whether, on the facts of this record, a provision in a deed poll, that no part of any building erected or kept on the land conveyed shall be within seventeen feet of a designated street line, is a collateral or personal promise of the vendee, or imposes upon the land conveyed a restriction running with the land, which is enforceable ⁶⁴¹ in equity against the vendee, and his assignees with notice or without a valuable consideration. The substantial facts are not in controversy and they will be first stated. A portion of the land in Baltimore County of John W. Sparks was laid off before 1917 into alleys, streets and town lots for the purpose of advantageous sale.

The plat of this development was duly recorded, and shows that this particular area was bounded on the north by a way called Ventnor Terrace, on the east by one named Dundalk Avenue, which ran northwestwardly and southeastwardly, on the south by a third, designated Baltimore Avenue, and on the west by a fourth, to be known as Willow Avenue. The boundary thoroughfares on the north and on the south were parallel to each other, as was Patapsco Avenue, which was located midway between them. As shown by the Sparks plat, a small triangular piece of land, with an area of but 270 square feet, was situated in the northeastern corner of the tract. This unmarked bit of land had its apex in the southern margin of Vent-nor Terrace, a frontage of 45 feet on the western line of Dundalk Avenue, its base of 12 feet on an alley between it and Lot No. 35, and an altitude of 43 feet on a twenty-foot way which converged with Dundalk Avenue until their union at Ventnor Terrace.

This undesignated triangular piece of land, and Lot No. 35 of the plat, are in the northern block of lots between Ventnor Terrace and Patapsco Avenue. Lots Nos. 16, 15, 14, 13 and 12, on Dundalk Avenue, were in the southern block between Patapsco Avenue and Baltimore Avenue. The triangular piece of land, and Lots Nos. 35, 16, 15, 14, 13 and 12, are all of the lots which front on Dundalk Avenue, between Ventnor Terrace and Baltimore Avenue. The other lots of the division were to the west of those fronting on Dundalk Avenue.

Of these lots, Nos. 11, 10, 9, 8, 7, 6, and 5, along with the southern boundary of the corner lot, No. 12, front on the northern side of Baltimore Avenue. ⁶⁴² Dundalk Avenue is divided into east and west side Dundalk Avenue by the private right of way of an electric railway which is forty feet in width and runs, with the course of the avenue, between these parallel divisions. The carrier’s double railway tracks of T-rail construction occupy the company’s exclusive right of way, which effectually separates the use of the avenue. On the plat the width of the west section of Dundalk Avenue is given as twenty-five feet, which is inclusive of five feet for a sidewalk. A crossing of the railway tracks is made for Baltimore Avenue, but the other ways begin at the western boundary line of Dundalk Avenue and extend westwardly, through the Sparks development, with which this appeal is concerned, and the adjacent tracts, which form part of the present suburban settlements of Saint Helena and of Colgate Park.

The Dundalk Company obtained, on May 5th, 1917, title to all the lots in the Sparks development, except Lots Nos. 12, 15, 16 and 35, which faced on the west side of Dundalk Avenue, and the row of adjoining lots, Nos. 6, 7, 8, 9, 10 and 11, and the easternmost half of Lot No. 5, which, with the southern boundary line of Lot No. 12, had a frontage of 344 feet on the northern line of Baltimore Avenue. The frontage of all the lots on the west side of Dundalk Avenue and between Ventnor Terrace and Baltimore Avenue is 441 feet. Of the lots not conveyed, Nos. 15 and 16 have a continuous frontage, but are separated from Lot No. 35 by Patapsco Avenue, and from Lot No. 12 by an alley and Lots Nos. 13 and 14. The sum of the frontage of each of these excepted lots is 334 feet.

The remaining discontinuous frontage of 107 feet on the west side of Dundalk Avenue is the combined frontage (62 feet) of the adjoining lots, Nos. 13 and 14, and of the triangular lot whose situation and impractical dimensions of a frontage of 45 feet, a base of 12 feet, and an altitude of 43 feet, make it apparently of negligible value for residential or commercial occupation. While the lots'laid off in the Sparks tract were subject to certain use restrictions relative to the sale of alcoholic ⁶⁴³ liquors on the premises,.neither the lots which had been previously conveyed before the grant to the Dundalk Company, nor those conveyed to it, were subject to any building restrictions. The Dundalk Company acquired in 1917 other extensive tracts of land in Dundalk and its vicinity, and on July 13th, 1918, conveyed a large part of its holdings to the United States Shipping Board Emergency Fleet Corporation. By this deed the company transferred all of its lots in the Sparks tract, except the lots numbered 13 and 14, and the small unnumbered triangular piece which has been described, and which, for brevity, will be called Lot A. Thus the restrictions imposed in the conveyance to the corporation could not affect any of the lots on the west side of Dundalk Avenue in the blocks between Baltimore Avenue and Ventnor Terrace, since all either had been previously conveyed, without building restrictions, by the company’s predecessor in title, or were held without building restrictions by the company.

It was not until the Dundalk Corporation, by its deed of March 30th, 1922, conveyed Lots Nos. 13 and 14 to the Trustees of St. Helena Lodge No. 171 I. O. O. F., their successors and assigns, in fee, that any building restriction was imposed upon any of the several lots fronting on the west side of Dundalk Avenue, between Ventnor Terrace and Baltimore Avenue. In this deed poll the lots are described merely by reference to their numbers on the plat of the Sparks land, and the provisions with respect to the restrictions are found in the habendum and tenendum, which reads: “To have and to hold the said lot of ground unto and to the use of the said Trustees of Helena Lodge, No. 171, I. 0. 0. F., their successors and assigns, in fee simple, subject to the following conditions and restrictions, and to have the same effect as if signed by the said party of the second part.” The restrictions imposed are five in number, and the first four relate to the use of the premises and to the reservation to the grantor, its successors and assigns, of every interest and estate of the grantor in the various ways and easements ⁶⁴⁴ appurtenant to the premises granted. The first restriction is the one with which this appeal is concerned, ánd it is of this form: “First: That no part of any buildings erected or kept on said land shall be within seventeen (17) feet .of Dundalk Avenue.” The grantee did not sign the deed, nor did the instrur ment contain any express term or stipulation whereby the grantee agreed for itself, its successors and assigns, to be bound by the restrictions last quoted.

Nor does the grantor undertake for itself and its successors and assigns that the small triangular Lot A, which is the only remaining parcel of land owned by the grantor between Ventnor Terrace and Baltimore Avenue, and any other of its lots forming any part of the development, shall be subject to this building restriction. ■* From the time of the purchase of the Sparks land in 1917 until the conveyance in 1922, and for some years after, the division of Dundalk Avenue which was west of the private right of way of the railway and between Ventnor Terrace and Baltimore Avenue was a country dirt road; and not one of the lots which fronted on Dundalk Avenue, within the area specified, was then improved. It was not until 1929-30 that buildings began to be erected. At the present time all these lots are occupied by structures for various business purposes, except Lots Nos. 13 and 14 and the triangular piece here called A. None of the buildings thus erected are set seventeen feet back from Dundalk Avenue, nor do they conform to any other distance. The lots purchased by the Lodge became by mesne conveyances the property of the complainants, who had notice of the provisions of the deed of the Dundalk Company to the Lodge, since not only that deed is of record, but the later deeds in their chain of title are of record and refer either directly to the provisions or to the original deed.

Lowes v. Carter 124 Md. 678 , 93 A. 216 . The Lots Nos. 13 and 14 are unimproved, but the plaintiffs proposed to erect upon them a large building for commercial use with the front of the building in' coin ⁶⁴⁵ cidence with the prevailing building line as determined by the structures erected to the north and south of their premises. As the building line which has been followed is not seventeen feet back from Dundalk Avenue, the plaintiffs were informed that the front projection of their proposed building must not come within this distance of seventeen feet. The position taken by the Dundalk Company would require the plaintiffs to keep, to their disadvantage, their building back of the front line ofthe others, and to sustain a loss in floor space of serious proportions.

Accordingly, the plaintiffs have brought this suit under the Declaratory Judgment Act (article 31A of Code; Acts of 1939, ch. 294) in order that their rights and obligations with respect to the provisions of the grant under which they derive their title may be considered and determined. The principles and rules of law which will determine the rights and obligations of the parties with reference to the instruments of title and the given facts and circumstances of the present record have been declared by numerous decisions. An agreement by the grantee not to build upon specified land within a certain distance of a specified object or line is a restriction upon the use of land which equity, under prescribed circumstances, will enforce against the grantee’s transferee who takes either with notice of the agreement, or without notice but for no valuable consideration. The question is not whether the agreement runs with the land, but whether a party who either takes title with notice or for no valuable consideration shall be permitted to use the land in a manner inconsistent with the contract entered into by his grantor.

Tulk v. Moxhay, 2 Phil. 774 ; Tiffany on Real Property, (2nd Ed.), secs. 394, 395. So, where the owner of land agrees with the buyer of a part of it that the latter shall either use or abstain from using the land purchased in a particular way, the contract may be specifically enforced between the vendor and vendee, since neither party to the agreement may equitably be permitted to use the land in a manner incon ⁶⁴⁶ sistent with the contract. Thus the question is fundamentally whether the contract as to the use of the land is enforceable in equity between the parties. If such an equity is attached to the land by the owner, no subsequent purchaser with notice, nor one who takes the land without giving value, can stand, in equity, in a different situation from the party from whom he bought.

Wolfe v. Frost, 4 Sandf. Ch. 72, 88. Under such circumstances, the equity which is attached to the property is not detached by the transmission of title. Thruston v. Minke, 32 Md. 487, 493 ; Lynn v. Mount Savage Iron Co., 34 Md. 603, 638 ; Halle v. Newbold, 69 Md. 265, 269-272 , 14 A. 662 ; Newbold v. Peabody Heights Co., 70 Md. 493, 501 , 17 A. 372 ; Peabody Heights Co. v. Willson, 82 Md. 186, 198-201 , 32 A. 386, 1077 ; Wood v. Stehrer, 119 Md. 143 , 86 A. 128 ; Foreman v. Sadler’s Executors, 114 Md. 574 , 80 A. 298 ; Ross v. McGee, 98 Md. 389 , 56 A. 1128 .

The equitable obligation, therefore, binds the promisor and his assignee not personally but in respect of his present ownership of the land. Thus the equitable obligation imposed ceases with the termination of the ownership of the land, because the restrictive agreement contemplates acts or restraints of the owner of the land. So, if a decree for specific performance be awarded, it must be against the instant owner of. the land. It follows that it is essential to the existence of the restriction upon the use or dominion of land (a) that there shall be a contract with reference to the use of the land; (b) that, at the time of the agreement which creates the restriction, the intention of the parties shall be that it run with, the land; and (c) that the contract be one which equity will specifically enforce. • 1.

The first requirement for the creation of a restriction in the use and enjoyment of land, that there must be a binding contract, is gratified by the contract implied from the acceptance of a deed containing a stipulation by words of reservation, provision, or condition. Vogeler v. Alwyn Improvement Corp., 247 N. Y. 131 , 159 N. E. 886, 887 ; Washburn’s Easements and Servitudes (4th ⁶⁴⁷ Ed.), sec. 3 pp. 114, 115; Jones on Easements, sec. 108. See Dawson v. Western Md. R. Co., 107 Md. 70 , 68 A. 301 . 2. The second requirement, that the parties intended their agreement not to be