Summers v. Beeler

Pea.rce, J., delivered the opinion of the Court. This is a bill in equity filed by the appellants to restrain the appellees from erecting upon their own premises, adjoining those of the appellants, a bay-window, in violation, as the appellants claim, of restrictions contained in conveyances for their respective premises from a common vendor, to whom their titles are traced through mesne conveyances. A preliminary injunction was granted, and was dissolved upon hearing, and thereupon this appeal was taken. Rev. C. L. Keedy, being the owner of a tract of land in Hagerstown, on the east side of Mulberry street, laid out the tract into twenty-eight lots, fourteen of which fronted on Mulberry street, and fourteen extended back eastward, fronting on King street, as shown in the accompanying plat, which was recorded among the Land Records of Washing ⁴⁷⁸ ton County, but without anything thereon, or in the description of the lots which accompanied the plat, to indicate any restrictions upon the use of the lots or any of them.

In the subsequent sale and conveyance of these lots fronting on Mulberry street, certain restrictions as to the building line to be observed were inserted in some of the deeds, while in others there were no restrictions whatever. Lots i, 2, 14, 3 and ‘5 were the first sold, and in the order named, without any restriction as to their use. These conveyances were all made between June 28th, 1888, and November 23rd, 1888. ^{477 478} Lot 5 was conveyed to C. P. Mason and W. M. Keedy, and the first house built upon any of the lots was erected here in the spring of 1889 standing back eight feet from the east line of Mulberry street. On No. 1, a church has been built with a covered vestibule, extending beyond the eight-foot line.

On No. 2, three dwellings have been built, each with a two-story bay-window, extending beyond the eight-foot line. On lots 7, 10 and 14, houses have been built, each with a one-story front porch extending beyond the line. On lot 8, a house was erected in 1889, the front wall of which is on the eight-foot line, with an enclosed porch, making it a one-story bay-window, extending beyond the line. All the other houses on the Mulberry street lots have steps extending beyond the eight-foot line.

All these lots, except 1, 2, 14, 3 and 5 were sold and conveyed with substantially the same restriction as to building, that is, “that no building or other improvement shall be located, built or constructed upon said lot closer to the west marginal line thereof, than a line running parallel thereto and bounding the west wall of the house owned by C., P. Mason and Wm. M. Keedy upon lot No. 5.” No. 11 is owned by Mrs. Summers, one of the appellants, and No. 10, by Mrs. Beeler, one of the appellees, who is now building a house thereon with a bay-window, extending three feet beyond the line of the Mason and Keedy house on No. 5, to which she is limited by the original con ⁴⁷⁹ veyance of her lot No. io, and the appellants are seeking to restrain the erection of this bay-window. Lot 11 was originally conveyed to the Danzer Lumber Co. by deed dated January 2nd, 1890, containing the restriction above mentioned, and the title thereto has passed to Mrs. Summers by mesne conveyances, each of which- refers to the restriction in the original deed. Lot 10 was originally conveyed to Norman B. Scott by deed dated Dec. 16th, 1890, with the same restriction, and the title thereto has in like manner passed by mesne conveyances to Mrs. Beeler, each conveyance referring to the original restriction.

In Halle v. Newbold, 69 Md. 270 , this Court, reviewing the cases of Thurston v. Mincke, 32 Md. 487 ; Whitney v. Union R. R., 11 Gray, 359 , and Clark v. Martin, 49 Pa. St. 289, says : “ These cases conclusively settle the law that a grantor may impose a restriction in the nature of a servitude or easement upon the land that he sells or leases, for the benefit of the land that he still retains ; and if that servitude is imposed upon the heirs and assigns of the grantee, and in favor of the heirs and assigns of the grantor, it may be enforced by the assignee of the grantor, against the assignee '(with notice) of the grantee.” The Court observed that in each of the cases reviewed, the grantor imposed the servitude upon the land he sold, in favor of the land he retained, while in the case then before the Court, the grantors imposed the condition upon the land they retained, in favor of the land they sold, but the Court said “ the principle in both cases is the same.” But the case no.w before us does not fall within either class of cases mentioned. Mr. Keedy sold and conveyed the plaintiffs’ lot No. 11, January 2nd, 1890; he had then sold and conveyed eight lots, Nos. 1, 2, 14, 3, 5, 9, 8 and 6, the first five without restriction, and the last three with the restriction mentioned, and he imposed upon the grantee of lot 11 the same restriction, but he imposed no servitude upon the land he retained, which embraced lot 1 o, in favor of the land he then sold, lot No. 11. ⁴⁸⁰ He sold and conveyed the defendant’s lot No. io, Dec. 16th, 1890, and he imposed the same restriction upon that lot which he had imposed upon lot 11. But this restriction cannot enure to his benefit as respects lot 11. upon the principle stated in 69th Md., because he had sold lot 11 nearly a year before; nor can it enure to the benefit of the plaintiff upon that principle as owner of lot 11, because there is no privity either of contract or estate, between the plaintiff and the defendant.

In Mulligan v. Jordan, 50 N. J. Eq. 363 (24 Atl. R. 543), it was held that a purchaser of a lot whose deed contains a covenant against the erection of any building within a certain distance of the curb line, cannot maintain an action against a subsequent purchaser of an adjacent lot from her grantor, for violation of a like covenant, when there was no such covenant between the two purchasers; and their grantor, although he required similar covenants from all purchasers, did not covenant with the first that he would exact them from subsequent purchasers. The Chancery Court of New Jersey is a Court of high repute, and has dealt with numerous questions of this character, and the facts of the case cited above are so closely analogous to the facts of this case that we cannot do better than adopt the following language from that opinion. “ The complainant’s deed is prior to that of the defendant. There is no covenant to the complainant from Mr. Roberts, the grantor, that he holds the remainder of the property subject to the same restrictions, or that he will exact similar covenants from purchasers of the remaining property; nor is the complainant the express assign of defendant’s covenant with Mr. Roberts ; nor is there any covenant between the plaintiff and the defendant.

The right of an owner of a lot to enforce a covenant (to which he is not a party or an assign), restrictive of the use of other lands, is dependent on the covenant having been made for the benefit of his lot. Obviously, while a subsequent purchaser might, by the operation of this rule, acquire a right of action against a ⁴⁸¹ prior purchaser, the prior purchaser would acquire no rights from a covenant entered into by a subsequent purchaser, unless there exists some condition which will entitle him to the benefit of such covenant.” The condition above mentioned has its illustration in another class of cases in which grantees from a common grantor, whose deeds contain restrictive covenants, conditions or reservations, have been allowed to enforce them inter sese, that is, cases, “ where although the covenant or agreement in the deed, regarded as a contract merely, is binding only on the original parties, yet in order to carry out the plain intent of the parties, it will be construed as creating a right or interest, in the nature of an easement appurtenant to the remaining land of the grantor at the time of the grant, and the right and burden thus created, will respectively pass to, and be binding on, all subsequent grantees of the respective lots of land.” Whitney v. Union R. R. Co., 11 Gray, 365 , quoted and approved in 69 Md. 270 . But, as is well expressed in Mulligan v. Jordan, supra, “ the right of grantees from a common grantor to enforce inter sese covenants entered into by each with said grantor, is confined to cases where there is proof of a general plan or scheme for the improvement of property, and its consequent benefit, and the covenant has been entered into as part of a general plan to be exacted from all purchasers, and to be for the benefit of each purchaser, and the party has bought with reference to such general plan or scheme, and the covenant has entered into the considei'ation of his purchase. ” In that case the Court proceeded to say “ the only fact which appears, is, that the same covenant is incorporated in the deeds of the complainant and defendant, and that Mr. Roberts has inserted the same covenant in each deed he made conveying any