Bealmear v. Tippett

• Citation: 125 A. 806,145 Md. 568
• Decision Date: 10 April 1924
• Docket Number: 50.
• Parties: BEALMEAR ET AL. v. TIPPETT.
• Court: Court of Appeals of Maryland

125 A. 806

145 Md. 568

BEALMEAR ET AL. v. TIPPETT.

No. 50.

Court of Appeals of Maryland

April 10, 1924

Appeal from Circuit Court of Baltimore City; Henry Duffy, Judge.

"To be officially reported."

Action between Richard B. Tippett and Cleveland R. Bealmear and another. From an order made on exceptions to the ratification of a sale of real estate, the latter appeal. Affirmed.

Argued before THOMAS, PATTISON, URNER, ADKINS, OFFUTT, and DIGGES JJ.

C Alex. Fairbank, Jr., of Baltimore, for appellants.

Richard B. Tippett, of Baltimore (Richard B. Tippett & Sons, of Baltimore, on the brief), for appellee.

URNER J.

The question raised by exceptions to the ratification of the sale reported in this case is whether the real estate proposed to be conveyed to the purchasers is subject to certain restrictive covenants. The sale was made under an agreement which provided for the release of the purchasers in the event of a judicial determination that the land is not free of such restrictions. The property consists of a tract of land containing about 16 acres situated on the north side of Liberty Lawn avenue and the west side of Garrison avenue in the suburbs of Baltimore. It was sold to the appellants by the appellee, as committee of Rose Leach, who acquired title on April 10, 1919, from St. Raphael's Institute of Providence. The deed to Miss Leach contained restrictive covenants which had also been included in a deed to the Institute from George R. Webb and wife, dated May 16, 1918 and which were to become operative if the land was subdivided into lots, and then only until January 1, 1930. The land had been conveyed to Mr. Webb from the Forest Park Company by two deeds, one executed on November 6, 1908, and the other on May 16, 1916, in neither of which were there any restrictive provisions.

On the south side of Liberty Lawn avenue, opposite the land sold in this proceeding, are numerous improved building lots. These were originally included, with the land now in question, in a tract of nearly 50 acres which was conveyed by George R. Webb and wife in 1905 to the Forest Park Company. The lots to the south of Liberty Lawn avenue were platted by the company, and were conveyed by it to various purchasers subject to restrictions similar in terms and duration to those mentioned in the deeds from St. Raphael's Institute to Miss Leach and from Mr. Webb and wife to the Institute. Every covenant for such restrictions was on the part of the grantor alone and the "grantee, his heirs and assigns." It was declared to run with the land conveyed, but the grantor did not covenant that the use of the remaining land should be similarly restricted. In each deed containing restrictive covenants there was a provision that they were subject to "be at any time in any manner changed with respect to the whole of the said property or any of the lots into which it may be divided, * * * with the mutual written consent of the said grantors, their heirs or personal representatives, and the owner or owners for the time being of the land to be affected by such change." The Forest Park Company parted with its title to every portion of the original tract referred to, and its corporate existence has been ended by a decree of dissolution. Simultaneously with his conveyance to St. Raphael's Institute of Providence Mr. Webb agreed in writing to indemnify it against any claim of "purchasers of the Forest Park lots" that the restrictions provided in their deeds should apply also to the property which the Institute had purchased. The agreement stated that the restrictions covenanted in those deeds applied only to the lots thereby conveyed.

The essential inquiry is whether there is any existing interest on behalf of which the restrictive covenants we have mentioned can be enforced in regard to the property with which we are concerned in this case. In order to answer that inquiry in the affirmative we should have to discover in the terms of the deeds, or in satisfactory proof of a uniform plan of development, an intention that the covenants should bind all portions of the land. Beetem v. Garrison, 129 Md. 664, 99 A. 897. The provisions of the deeds fail to reveal such a purpose. They omit any agreement that the restrictions should bind the grantor's remaining land, or should apply to property other than that granted in each instance, and the covenants on the part of the grantor, in every deed, are strictly individual. Safe Deposit Co. v. Flaherty, 91 Md. 489, 46 A. 1009; Wood v. Stehrer, 119 Md. 143, 86 A. 128; Lowes v. Carter, 124 Md. 678, 93 A. 216.

There is no common grantor capable of enforcing the restrictions for the benefit of any interest. The Forest Park...