ROGERS
J.
This is
an appeal from the circuit court of Baltimore City. The
subject-matter of the appeal is a deed and agreement entered
into between the parties to this suit on May 2, 1905. The
deed in question conveyed to the appellants, Coggins & Owens
a strip of land 10 1/2 inches wide, and 168 1/2 feet long on
the east side of Charles street, 93 feet 5 inches south of
German street, in the city of Baltimore. The deed contained
certain covenants and conditions relating to the use of a
wall standing one-half on the land of the appellees, and
one-half on the land conveyed to the appellants, and to the
respective rights of the parties in subsequent extensions
upward and eastward of this wall. The appellees (plaintiffs
below) contended that the whole of this wall, that already
erected and that part erected subsequently to the making of
the deed of May 2, 1905, was a party wall, and that the
appellants (defendants below) had no right to open and
maintain windows in this party wall; and, further, that there
was a typographical error in the deed which should be
corrected in order to express the understanding and agreement
of the parties. After testimony taken in open court, and
argument by counsel, the full relief prayed was granted, with
costs, to the appellees, and it is from this decree that the
present appeal is taken.
The
testimony shows that the appellees had erected, some time
prior to April, 1905, on a lot in Baltimore City, known as 21
South Charles street, a three-story warehouse. That the
appellants, who owned the vacant lot adjoining that of the
appellees, approached Mr. James Carey, some time in April
1905, with a proposition to buy a strip of land 10 1/2 inches
wide on the north side of appellees' property, which
strip of land ran to the center line of the north wall of the
warehouse then standing, and therewith acquire one-half of
the north wall of the appellees' warehouse. After some
short delay, the appellees offered to sell for $2,500, but
the appellants only offered $1,500. The appellants then, by
letter of April 1, 1905, offered to buy for $1,800 the land.
The appellees made a counter proposition of April 4, 1905, to
sell the 10 1/2 inches of land for the sum of $1,800,
provided certain conditions and covenants were inserted in
the deed. Let us look at these letters:
"April
1, 1905. Mr. Francis K. Carey, City--Dear Sir: In regard to
the use of the north wall of No. 21 South Charles street,
in the construction of our warehouse on lot No. 19, with
reference to which the writer called upon you yesterday
morning, would say, we have talked the matter over between
ourselves, and have conferred with several builders.
Without exception they all state that the usual custom in
circumstances of this kind, is for the buyer to pay
one-half of the cost of building the wall and to buy half
of the ground, at the price per front foot that ground in
the vicinity is bringing. The offer of $1,500 made you
about conforms to this custom. After due consideration we
have concluded that the use of the wall, and the purchase
of ten and one-half twelfths (10 1/2/12) front feet of your
ground, would be worth $1,800.00 to us. And we hereby offer
you this amount for the concessions we ask. We request that
you take immediate action and give us your decision as
early as convenient. Yours truly, Coggins & Owens. F. V.
Coggins."
To
which appellees replied as follows: "21 S. Charles St.
Partition Wall. Messrs. Coggins & Owens, 102 North Frederick
street, Baltimore, Md.--Gentlemen: I acknowledge receipt of
your letter of April 1, 1905, in above matter. I am
authorized by the owners of the lot adjoining your lot on the
south to say [here follows description of the land],
including the right to that part of brick wall which is now
erected on said strip, upon the following conditions which
are to be made part of the transfer and to run with the land:
First. That the brick wall, part of which will be located on
said strip, and the balance on the remaining land of the
sellers, shall be used as a partition wall between the
warehouse now erected on the lot belonging to the sellers and
the warehouse to be erected on your adjoining lot. If
purchasers desire wall to run to a greater depth than the
north wall now standing, said wall is to be erected entirely
at their expense, and in the same line and of the same
thickness as the wall now standing, with the privilege to the
sellers to use this new part of said wall at any time as a
party wall, without any additional cost or charge therefor.
Second. That in case you elect to build your wall higher than
the north wall of the warehouse
belonging to the sellers, the right is reserved to the
sellers, if they hereafter add to the height of their
warehouse, to use said additional wall as a party wall,
without any additional cost to them. Third. That in case
either the warehouse belonging to the sellers or the
warehouse to be erected by you is so far destroyed by fire as
to either cause the destruction of said partition wall or
necessitate its being taken down, it shall be immediately
rebuilt at the joint cost of the owners of the lot now owned
by the sellers and the owners of the lot now owned by you,
and in case either has to build at his expense, the other
shall not use said wall until he shall pay his proportionate
part of the cost of shall be due and payable within thirty
days (30) after the completion of said wall. Fourth. If, in
the erection of your warehouse, any injury is done to the
said wall or to the warehouse owned by the sellers, or its
contents, the cost of such injury is to be paid by you, and
you are to guaranty the sellers against all loss or injury
which may happen to them, by reason of the use by you of the
said wall as a partition wall. Fifth. You are to pay to the
sellers the sum of eighteen hundred dollars ($1,800) in cash,
upon the execution and delivery of the deed which is to be
prepared by you in a manner satisfactory to me, for the
purpose of carrying out the above conditions. The title to
the land to be in fee simple and marketable, subject to the
easement on the twenty (20) feet in the rear of Wine Alley,
which easement prevents the erection of party wall on this
part of the lot; and, if the title is not satisfactory to
your attorney, the transaction will be declared off, and all
parties released from any obligation. In reference to the
price of eighteen hundred dollars ($1,800), the sellers did
not think they would consider a lower figure than two
thousand dollars ($2,000), but have now decided to accept
this figure, with the conditions contained in this letter.
Sixth. The transaction is to be completed within thirty (30)
days from the date of this letter. You will observe, of
course, that the hesitation we feel about the matter is due
to the fact that we have already narrowed our lot by building
our north wall entirely on our land. If the wall is at any
time destroyed, and you or the then owners of your lot should
take the same position with us that was taken by the Diamond
Match Company, and should refuse to unite in the erection of
a partition wall, we would have to build the wall again
entirely upon our own property and would narrow our lot by
nearly a foot more, which would be out of the question. We
therefore wish the transaction to take such shape as to give
permanency to the partition wall without regards to the plans
of either party. In other words, we wish to have an absolute
guaranty running with the land that, in case the wall is
destroyed, a similar wall will at once be erected on the same
ground, at the joint cost of the owners of the two lots. Very
truly yours, Francis K. Carey."
Answer
of Coggins & Owens: "Baltimore, April 7, 1905. Mr.
Francis K. Carey, Calvert Building, City--Dear Sir: We beg to
acknowledge receipt of your proposition. We have turned your
letter over to our attorney, Mr. Horton S. Smith, who will
investigate the title and arrange the transfer. We wish to
thank you for having given this matter your prompt attention,
and we appreciate your efforts in our behalf. Again thanking
you, we are, Yours truly, Coggins & Owens."
In
October, of 1905, Francis K. Carey addressed the following
letter to appellants: "Oct. 30, 1905. Estate of James
Carey. Party Wall 21 S. Charles Street. Messrs. Coggins & Owens, Baltimore, Maryland--Gentlemen: My brother calls my
attention to the fact that in building your warehouse
adjoining the warehouse owned by the estate of James Carey,
you have opened windows in the party wall overlooking the
rear of our lot adjoining you on the south. Under the
agreement of May 2, 1905, between your firm and the estate of
James Carey, no such right was reserved to you, and it is
necessary that the matter should be given your immediate
attention. I will be glad to have a talk with you at my
offices if you will make an engagement with me by telephone.
There are serious practical reasons why it is out of the
question for these windows to remain, which I will be glad to
explain to you when we meet. Very truly yours, Francis K.
Carey."
Then
followed several letters between Mr. Willis, counsel for
Coggins & Owens, and Mr. Carey, which resulted in a
declination on the part of Messrs. Coggins & Owens to close
the windows.
On the
21st of December, 1905, the appellees...
