Safe Deposit & Trust Co. v. Flaherty

Schmucker, J., delivered the opinion of the Court. This appeal is from an order sustaining the exceptions filed by the appellee to the ratification of a sale made to him, by the appellant as trustee, of two lots of ground in Baltimore City. The exceptions are based upon the claim that the title to the lots has been rendered unmarketable by certain alleged restrictive covenants or conditions as to their use contained in a deed made in April, 1847, °f the land of which they form part, from the Canton Company to Hugh Gelston. The obnoxious clause in the deed to Gelston is as follows : “ And the said party of the second part, for his heirs, executors, administrators and all persons claiming under him or them hereby agrees with the Canton Company of Baltimore aforesaid that these presents are upon the express condition that no buildings shall be erected on the premises aforesaid, for the purpose of prosecuting any business, trade, calling or manufacture prohibited by the existing laws of the State of Maryland, or the ordinances of the-city of Baltimore, aforesaid, or which shall cause or produce a nuisance injurious or prejudicial to any of the adjacent lots or calculated to prevent the beneficial use and occupation of the same, and that no such excepted business,, trade, calling or manufacture shall be prosecuted or carried on within the premises aforesaid, unless the consent of the aforesaid, the Canton Company of Baltimore, shall first be-had and obtained therefor, on penalty of rendering this indenture and all parts thereof void.” At the date of the deed to Gelston the Canton Company-owned considerable ground in the neighborhood, including that immediately adjoining the parcel sold to him.

It subsequently sold or leased to other persons all of the land ⁴⁹⁸ belonging to it in the same block with the Gelston lot without inserting in the conveyances therefor any restrictive clause similar to the one contained in the deed to him. Gelston’s lot was subdivided by him and came to be owned in separate parcels under mesne conveyances by a number of persons, all of whom in January, 1900, united in a written request to the Canton Company to release the land from the restrictions imposed upon it by the deed to Gelston in 1847. The Canton Company thereupon executed and delivered to them a deed of release and quitclaim on behalf of itself, its successors and assigns of all its title to the land and its right to rely upon or in any manner enforce the restrictions contained in the deed to Gelston; but this release expressly disclaimed any purpose to affect or impair the rights, if any there were, of other persons to whom the Canton Company might be held to be under obligations as trustee or otherwise to enforce the restrictions. The question for us to determine is whether in the present state of the title the restriction in the Gelston deed of 1847 imposes upon the lots sold to the appellee such conditions or limitations as to prevent the trustees from conveying them to him by a good and marketable title.

Inasmuch as the Canton Company has, in the most formal manner, released all of its interest in the lots and all right on its part to enforce the restriction, the issue before us is narrowed down to the inquiry whether any other person possesses the right to enforce it.' Of course no one who is a total stranger to the title has any such right. If the right exists at all, it must exist in favor of some one claiming under the Canton Company, which was the grantor in the deed to Gelston. By the premises of that deed an absolute and unqualified estate in fee in the land is conveyed to Gelston, and it is in the habendum alone