Mitchell v. Beulah Polk Packham

This is a bill filed in the Circuit Court of Baltimore City by the appellee, to compel the specific performance by the appellant, of a written contract by which he agreed to purchase from her for the sum of thirty-five hundred dollars, a certain described parcel of unimproved real estate in Baltimore City, and by which she agreed, upon payment of the purchase-money, to convey said land to him by a deed to be executed at his expense, which should convey the property by a good and merchantable title. The sum of one hundred dollars was paid on the signing of the agreement, on September 19th, 1905, but the appellant refuses to pay the residue of the purchase-money and to accept a conveyance of the property because he alleges that the appellee cannot convey a good and merchantable title thereto, by reason of certain conditions and provisions contained in a deed from the North Baltimore Land and Improvement Company of Baltimore to Mary Polk, from whom the appellee derives her title, which conditions and provisions he alleges create a cloud upon her title. This deed bears date November 23rd, 1892, while the appellee’s title was acquired under a deed from the Packham Glass Company of Baltimore City bearing date January 19th, 1904. The conditions and provisions contained in the deed from the North Baltimore Land and Improvement Company of Baltimore City, are four in number.

The first of these conditions is that no intoxicating beverages shall be sold or offered for sale on the premises, and that no saloons or places for sale of intoxicating drinks, and no slaughter houses or factories of any kind, or nuisances of any description shall be ⁶⁹⁴ erected on the property; and the fourth is that no stable or stables shall be erected on said property within seventy feet of the building lines of Tenth street, west, or forty feet of Pressbury street. The bill, however, alleges, and the answer admits, that the appellant has abandonéd and waived all objections to the appellee’s title to the property in question, so far as refers to said first and fourth conditions, and they may,therefore, be dismissed from consideration, except to observe that they are both general aud' unqualified restrictions upon title, the one forbidding any sale of any intoxicating liquor, or the erection of' any place for the sale of liquor, or of any slaughter house, factory or nuisance of any description on the property, and the other forbidding the erection of any stable within certain lines. The remaining conditions which are relied on are as follows: “2nd. That not more than two dwellings shall be erected on said property within ten years next after the date of these presents.” “3rd.

That such dwellings so erected upon the property shall set back at least fifteen feet from the building lines of Tenth street, west, and Pressbury street, and shall each aggregate in the cost of erection not less than three thousand dollars. ” The Circuit Court being of opinion that these conditions and restrictions relied on by the defendant were no longer effective or of any binding force, decreed the specific performance asked, and from that decree this appeal has been taken. It is fundamental law that in the interpretation of written contracts and instruments, it is the duty of the Court to ascertain, if possible, the intention of the parties, as manifested by the terms of the whole instrument, and the instrument in this case being a deed, it is equally fundamental that it must be construed most beneficially,for the grantee. Md. Coal Co. v. Cumberland & Penn. R. R., 41 Md. 343 .

There is nothing in this deed, nor anywhere in this record, to suggest why these restrictions were made, or