Whitmarsh v. Richmond

⁵²⁵ Forsythe, J., delivered the opinion of the Court. The appeal in this case is from a decree of the Circuit Court No. 2 of Baltimore City, decreeing the specific performance of a contract of sale of real property, between the appellant and the appellees. From the bill of complaint, it appears that on the 7th day of June, 1940, the appellees entered into a contract with Frank B. Ober, giving him an option to purchase the fee simple property, and improvements, known as No. 5021 Park Heights Avenue, in Baltimore City. The option was to be exercised within ninety days, but by a letter of February 1st, 1941, the option was extended, and by a letter of February 3rd, 1941, Mr. Ober notified the appellees that he “exercised” the option contained in the contract of June 7th, 1940, as extended by the letter of February 1st, 1941.

On February 4th, 1941, Mr. Ober assigned all of his rights under the said “option and contract of purchase” to the appellant, William R. Whitmarsh. The appellant declined to carry out the said contract of purchase, asserting as a reason therefor that certain restrictive covenants on the property prohibited its use for the purpose for which he was seeking to acquire it. Thereupon, this bill for specific performance was filed. Testimony was taken, deeds, a plat and photographs of the property in question, and of the surrounding neighborhood, were filed as exhibits.

From the oral testimony, and from the photographs included in the record, it appears that practically all of the properties adjacent to the property here involved now aré being used for commercial purposes. The various business places consist of a drug store, restaurant, saloon, laundry, cleaning shop, market, bakery, delicatessen store, hardware store, two grocery stores, a bank, a cloak and suit shop, a doctor’s office and a funeral establishment. The restrictions objected to by the appellant were contained in a deed of January 9th, 1906, from the Den-more Land Company, of Baltimore City, to William C. Becker and Hattie E. Becker, his wife, under which deed, ⁵²⁶ after certain mesne conveyances, the appellees hold the present title. The restrictive covenants contained in the said deed are as follows: “The parties of the second part, for themselves, their heirs and assigns, hereby agree not to erect any building upon the said lot that shall cost less than $3000.00, and “That no factory, store, saloon, mill or manufacturing establishment of any kind or any other kind of business which may prove detrimental to the said surrounding property of the first party or which said party of the first part may deem detrimental to its property shall be on the lot hereby sold, it being understood and agreed that the parties of the second part are to build on the said lot for the purpose of a residence and for no other purpose.

Any privy well which may be dug on the said lot shall not be less than five feet deep and shall be bricked and cemented. “No fencing other than a hedge shall be erected on the said lot and it is further > agreed by the parties of the second part that they, their heirs or assigns, shall not sell, lease or assign this property to any person of negro extraction.” It is stipulated by the parties in'this case, that the property here involved comprises lots Nos. 9 and 10, on a recorded plat, a copy of which is filed as exhibit No. 7; that by deed of June 8th, 1910, William C. Becker and wife conveyed said lots to Charles R. Becker and wife, and that said deed contains no reference to the aforesaid restrictions, and does not impose any other restrictions on the property thereby conveyed. Then, by deed of August 6th, 1910, the said Charles R. Becker and wife conveyed the said two lots to Rachel E. Richmond, which deed likewise contained no reference to any restrictions. After the death of the said Rachel E. Richmond, intestate, the appellees here, as her heirs, became possessed of the said property. It is further stipulated by the parties hereto that the Denmore Land Company obtained the large tract of land, ⁵²⁷ of which the two lots here involved is a part, without restrictive covenants of any kind, and it is in the conveyance of the Denmore Company that any restrictive covenants first appear.

Also, it is stipulated that the Denmore Land Company was dissolved on November 8th, 1907, and that the company before its dissolution, and the receiver for the company, conveyed a number of lots in the same development, some under the same restrictions as the lots here involved, some with different restrictions, and some without any restrictions at all. The appellant contends that he sought the property for the special purpose of using it as a gasoline, and service station, and the testimony discloses that the Board of Zoning Appeals of Baltimore City passed a resolution, without protest, authorizing the construction of a gasoline and service station on the property. In dealing with questions involving restrictive covenants, this court has held “that a sound public policy favors the free and unrestricted use of land by the legal holder, and therefore alleged restrictive covenants should be construed strictly against the establishment and effect of such covenants, and liberally in support of the free use of the land.” Ferguson v. Beth-Mary Steel Corp., 166 Md. 666, 672 , 172 A. 238, 240 ; McKenrick v. Savings Bank of Baltimore, 174 Md. 118 , 197 A. 580 ;