Shea v. Evans

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a decree dismissing the bill filed by the appellants against the appellee, which sought to compel the latter to specifically perform a contract for the purchase of sixteen lots laid out in what is called Buxton Heights in Baltimore County. The only written evidence of the contract is an account stating that Mrs. Evans bought of McGuire and Shea, sixteen lots at Buxton Heights known as Bos. 1, 2, 3, etc., (giving the number of each), stating the consideration to be $3,000.00, crediting that “By cash on account of sale $50.00” and showing balance due $2,950.00. That was signed by Mrs. Evans and was dated Oct. 22, 1907.

It will be observed that the contract is very meagre—not stating when the balance of the purchase money was to be paid, where the description of the lots could be ascertained, whether there is a plat on record, or the character of title held by the vendors. Some testimony was taken as to the value of the lots, but in the view we take of the case it will be unnecessary to discuss that. The defense mainly relied on by the defendant was that the plaintiffs made such misrepresentations to induce her to purchase, that a Court of Equity should not specifically enforce the contract, if otherwise binding. It is proper to' say that the plaintiffs deny that charge, and claim that the defendant had every opportunity to inform ' herself of the actual condition of the property.

The lots were advertised for sale at public auction on September 28, 1907, and the appellee seems to have been first attracted to them by that advertisement. She together with some others was present at the appointed time, but the weather was very bad, and no sales were made. Afterwards the appellants ²³¹ sought to interest the appellee in the lots. Mr. McGuire, one of them, dealt with her, persauded her to go over the property at a la'.er time, and sold her the lots stated in the account.

He endeavored at first to get her to give $300 for each lot, with ten per cent, discount for cash, then $1,000 for the sixteen, aTerwards $3,500 and finally accepted her offer of $3,000.00. He then made out the account and had her sign it. Two days later the two appellants and the appellee went to the office of Mr. Bansemer, who was her attorney, and Mr. Shea handed him a memorandum of restrictions to go in the deed, which was as follows: “That no part of any building shall be erected nearer to the avenue or street front than fifteen (15) feet; that no bam, stable, coop, or other outbuilding shall likewise be erected nearer to the avenue or street front than fifty (50) feet.” Afterwards Mrs. Evans called on Mr..McGuire and said she wanted a provision inserted in the deed that Maywood Avenue was to bo macadamized, which he said was not necessary, and then she referred to the fact that there was no electric road there, and finally demanded the $50 she had paid them. The next morning Mr. Bansemer notified Mr. McGuire that Mrs. Evans had decided “to cancel that contract,” to use the language of the witness.

She claims that misrepresentations were made as to an electric road to be constructed,, as to macadamizing the avenue, and as to certain proposed purchasers for some of the lots. But what seems to us to be the most material objection to the enforcement of the contract is the fact that the use of the property is subject to a number of restrictions, which are not shown to have been brought to her attention before she made the purchase or to have been agreed upon by her. The following admission'is stated in the record: “ATotu.—It is admitted by counsel for the plaintiffs, at the request of counsel for the defendant, that the restrictions under which the title to the lots in question must be conveyed by the plaintiffs, are as follows, to wit: 'That the parties of the second part, the vendee, will not at any time within fif ²³² ■teen years from the day of the date of the deed for said premises, erect or build, or, cause or permit to be erected or built, upon said premises, or any part thereof, any hotel, tavern, drinking saloon, blacksmith, carpenter or wheelwright shop, ■steam mill, tannery, slaughter house, skin drying establishment, livery stable, glue, soap, candy or starch manufactory, or use for any offensive purpose or occupation; that no part of any building shall be erected nearer to the avenue or street front from fifteen feet; that no barn, stable, coop or other ■outbuilding shall likewise be erected nearer to the avenue or street front than fifty feet; and that no dwelling house costing less than two thousand dollars shall be erected or built upon said premises, within fifteen years from the date of the deed that may convey the aforesaid premises to the vendee.’ ” It is true Mr. Shea swore that on the day the lots were offered at public auction he told Mrs. Evans of the various restrictions, but she positively denied any knowledge of them. Mr. McGuire, who had most of the dealings with, her, admits that he did not tell her., and said that so far as he knew, she never shw the