Newbold v. Peabody Heights Co.

Alvey, C. J., after stating the case as above reported, delivered the opinion of the Court. The question is, whether the agreements of the 20th of September and the 19th of October, 1810, contain such restrictive covenants and conditions as will hind the parties to those contracts, and those claiming title through or under them; for if so, there would appear to be ground for the objection taken by the defendant. That the covenants and conditions referred to were not actually incorporated in the lease can make no difference, as to the effect that they may have upon the parties holding property embraced by the lease. Nor can it make any difference that the memorandum of the plan of the organization of the plaintiff company, and the conditions upon which such company was to hold and dispose of the property leased, was adopted only by reference to such memorandum in the subsequent agreements, and that the agreements were not recorded as parts of the lease.

Noonan vs. Lee, 2 Black, 499, 504 ; Nicholson vs. Rose, 4 D. &. J., 10. The covenant contained in the agreement of the 19th of October is very explicit, that the preceding agreement, with the memorandum attached, should be binding upon the parties and their assigns. They stipulate “that the covenants, requirements, restrictions, regulations and reservations contained therein shall he fully complied with and carried out, as if they had been embodied in the lease of the property therein referred to, or as if the said Peabody Heights Company had been one of the original contracting parties.” The reason and policy for the adoption of such conditions and restrictions are manifest; and that Mr. Holmes, the lessor of the property, attached great importance to the plan of improvement, and the restrictions and conditions em ⁵⁰⁰ bodied in tbe memorandum, is made apparent from tbe fact of his requiring the execution of the agreement of the 19th of October.

It was his purpose, by that agreement, to require that the Peabody Heights Company should be bound by the conditions and restrictions referred to as well as the individuals who originally contracted for the land ; and that the lease, though making no reference to the preceding agreements, should not be construed as a waiver on his part of the conditions and restrictions specified in the memorandum. The covenant, and the conditions and restrictions contemplated by it, were in all respects legal, and such as the owner of land has a right to impose. And being so, he and those holding under him, have the right to insist upon the enforcement of the covenant, not only as against the Peabody Heights Company, but as against every other person, acquiring right or title under that company with notice of the covenant. It may be very true that the covenant is not of a character to run with the land, in the strict legal technical sense of those terms ; but if it be of a character to create a right and an equity in favor of the vendor or lessor, and those claiming in his right, as against those holding and occupying the land, a Court of equity will assume jurisdiction and administer relief.

This is a well settled principle, and it has been considered and applied by this Court in two recent cases, — the case of Thruston vs. Minke, 32 Md., 487 , and Halle vs. Newbold, 69 Md., 265 , though in respect to facts somewhat different from those of the present case. But, in both of those cases, the general principle of equity was acted on and fully adopted, that a restrictive covenant entered into between a vendor and vendee, or lessor and lessee, in respect to the manner of using the property, would be enforced by a Court of equity, as against the vendee or lessee, and his assigns, without respect to the ques ⁵⁰¹ tion as to whether the covenant did or did not, in a legal sense, run with the land. The relief may he furnished either by way of injunction, or upon application for specific performance, according to the circumstances of the case calling for the exercise of equitable jurisdiction. In the leading case upon this subject, that of Tulk vs. Moxhay, 2 Phill., 774 , it was held that a covenant between a vendor and purchaser, on the sale of land, that the purchaser and his assigns should use or abstain from using the land in a particular way, would be enforced in equity against all subsequent purchasers with notice, independently of the question whether it be one which ran with the land so as to be binding upon subsequent purchasers at law.

In that case the principle, as applied by Courts of equity, is stated by Lord Chancellor Cotteííham with such admirable clearness that we cannot do better than to quote his