Bartell v. Senger

• Decision Date: 09 June 1931
• Docket Number: 4.
• Parties: BARTELL ET AL. v. SENGER ET AL.
• Court: Maryland Court of Appeals

155 A. 174

160 Md. 685

BARTELL ET AL. v. SENGER ET AL.

No. 4.

Court of Appeals of Maryland

June 9, 1931

Appeal from Circuit Court No. 2 of Baltimore City; Eugene O'Dunne, Judge.

Suit by Joseph Bartell and others against Frank Senger and others. From the decree, complainants appeal.

Affirmed.

Argued before URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Louis J. Jira, of Baltimore (Dobihal & Novak, of Baltimore, on the brief), for appellants.

John J Neubauer, of Baltimore (Frank J. Pintner and Evan D Llewelyn, both of Baltimore, on the brief), for appellees.

OFFUTT J.

The appellants own and occupy leasehold property known as 3325 East Monument street in Baltimore city, and the appellees own and occupy the adjoining property, also leasehold, known as 3323 East Monument street. Each lot is improved by a two-story brick dwelling, which is one of a solid block of houses, all of which are substantially alike in appearance and each of which has a porch extending across its entire front. Each of these porches is apparently partly inclosed by a brick parapet or wall extending from the surface of the ground a short distance above the porch floor, and the roof of each is supported by a pillar at each of its two corners nearest the street.

Prior to this suit Frank Senger and Marie Senger, his wife, the appellees, undertook to inclose the open space between the brick wall and the roof of their porch with removable glazed casements, bronze screens, and a "single light screen door."

To prevent the proposed change, Joseph Bartell and Bessie Bartell, his wife, the appellants, filed the bill of complaint in this case, in which they charged that it violated certain "covenants, conditions and restrictions" in an agreement contained in a lease hereinafter referred to as the Cadden lease, from the Columbia Building Company to James R. Cadden, dated April 5, 1926, and in which they prayed that the appellees be enjoined from altering the "architectural design of the said porch," and that a mandatory injunction be issued commanding them to restore the porch to its "original condition." Appellants further stated that they acquired their property from Frank Novak June 29, 1928, that the appellees acquired their property from Edward W. Auld February 13, 1928, that both properties "adjoin each other and that both were originally when erected by the same builder, of the same architectural design," but there is nothing stated in the bill to indicate when or how Novak or Auld acquired title to the property or that there was any privity between them and either the Columbia Building Company or Cadden. The part of the lease to Cadden invoked by the appellants is as follows: "The aforegoing lease is made and accepted between the parties hereto upon the following conditions which conditions are to run with the land and are made a part of the consideration of these lease to wit 1. The said Lessee for himself his executors administrators and assigns covenants that the houses erected on the above described lots of ground shall not be used as stores for the sale of any kind of intoxicating liquor of any sort nor are said houses to be converted into stores. This covenant is not to apply to No. 3321 Monument Street being the fourth above described lot as the said lot is already improved by a store. 2. That the porches on the houses erected on said lots shall remain as they are for the period of ten years from the date hereof and no architectural change shall be made therein nor shall the same be changed in any particular this covenant however not to include painting or screens used for the purpose of excluding the sun or mosquitoes from said porches." A demurrer to the bill having been overruled, and a demurrer to defendants' answer having been sustained, defendants finally filed an amended answer in which, while declining to admit that the "restrictions or covenants" were enforceable, they denied that if enforceable they would be violated by the proposed improvement. Testimony was taken mainly in connection with the latter issue, and at the close of the case the chancellor dismissed the bill on the ground that the "enclosure" violated neither the "letter or spirit of the covenant." This appeal from that decree presents two questions: (1) Whether the appellants have the right to enforce the so-called covenants or conditions in a court of equity; and (2) if they have, will the proposed improvement violate the agreement that the porches shall for ten years "remain as they are * * * and no architectural change shall be made therein nor shall the same be changed in any particular this covenant however not to include painting or screens used for the purpose of excluding the sun or mosquitoes from said porches"?

It appears from an examination of it that, in that part of the Cadden lease which refers to the use of the leased property, the restrictions are indifferently described as "conditions" and as "covenants," as though the two terms were synonymous. But that is not so, for a covenant "differs from a condition, both in the language that constitutes it, and in the consequences which follow from a breach. For while the breach of a covenant merely gives the covenantee the right to maintain a personal action, the breach of a condition works or may work, a forfeiture of the estate." Venable's Syllabus 106.

The ambiguous and obscure character of the language in which the stipulation is stated, considered in connection with its subject-matter, forbids the inference that it was intended to operate as a technical condition. The stipulation necessarily related to future acts, and if a condition at all was a condition subsequent. But such conditions "are not favored in law," and are strictly construed, Venable's Syllabus, 108. And where the very language out of which they are said to arise itself raises a doubt as to whether the parties intended them to operate as "conditions," or as "covenants," it will be assumed that their intention was to create a covenant rather than a condition. Id.; Foreman v. Sadler's Ex'rs, 114 Md. 577, 80 A. 298.

But while the effect of the stipulation does not annex a condition to their title to the property, it may nevertheless constitute such an agreement as a court of equity will enforce in a suit between the original parties, or, where the deed containing the agreement expressly states that it is made for the benefit of the heirs and assigns of the grantee or lessee, in a suit inter sese between them. Thruston v. Minke, 32 Md. 494; Halle v. Newbold, 69 Md. 269, 14 A. 662; Newbold v. Peabody Heights Co., 70 Md. 500, 17 A. 372, 3 L. R. A. 579; Wood v. Stehrer, 119 Md. 143, 86 A. 128; Jones v. Real Estate Company, 149 Md. 271, 131 A. 446; Clem v. Valentine, 155 Md. 19, 141 A. 710. But where it does not appear from the express terms of the deed that it was made for and on behalf of the assigns of the lessee or grantee for their benefit, it cannot be enforced in a suit inter sese between them, unless it appears that the restrictions were an integral part of some scheme or plan for the uniform development or use of the land described in the deed, and that it was the intention of the parties thereto to bind "all portions of the land," Bealmear v. Tippett, 145 Md. 571, 125 A. 806, 807, or that they were "meant for the common advantage of a set of purchasers," Boyd v. Park Realty Corp., 137 Md. 41, 111 A. 129, 130; Nottingham Brick & Tile Company v. Butler, 15 Q. B. Div. 268; Beetem v. Garrison, 129 Md. 665, 99 A. 897; Foreman v. Sadler's Ex'rs, 114 Md. 577, 80 A. 298, and that the parties to the suit derived their title from a common vendor who imposed the restrictions upon the land affected, Ringgold v. Denhardt, 136 Md. 142, 110 A. 321; Dawson v. W. Md. R. Co., 107 Md. 74, 68 A. 301, 14 L. R. A. (N. S.) 809, 126 Am. St. Rep. 337, 15 Ann. Cas. 678, and that the defendant took with notice.

In determining whether the language employed in the stipulation is...