Ferguson v. Beth-Mary Steel Corp.

• Decision Date: 25 April 1934
• Docket Number: 46.
• Citation: 172 A. 238,166 Md. 666
• Parties: FERGUSON v. BETH-MARY STEEL CORPORATION.
• Court: Maryland Court of Appeals

172 A. 238

166 Md. 666

FERGUSON v. BETH-MARY STEEL CORPORATION.

No. 46.

Court of Appeals of Maryland

April 25, 1934

Appeal from Circuit Court of Baltimore City; Albert S. J. Owens Judge.

Bill by the Beth-Mary Steel Corporation against William E. Ferguson. Decree for complainant, and defendant appeals.

Affirmed.

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

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

George Weems Williams and Boyd B. Graham, both of Baltimore (Marbury, Gosnell & Williams, of Baltimore, on the brief) for appellee.

DIGGES Judge.

William E. Ferguson, the appellant, is a citizen and resident of Baltimore city, Md. By an agreement dated November 21, 1933 between him and the appellee, the appellant agreed to buy and the appellee agreed to sell a tract, piece or parcel of land situate, lying, and being in Baltimore county, particularly described by courses and distances, and containing one acre of land, more or less. By the terms of the agreement, the conveyance of the land covered by the agreement was to be made within ten days of its date, otherwise the agreement to become null and void, at the option of the seller. The purchase price was $5,000, upon receipt of which in full, at any time during the term of the agreement, the seller agreed to convey said land in fee simple to the purchaser, his heirs and assigns, with a good and marketable title, subject, however, only to the following restrictions, provisions, conditions, and reservations, to be set out in the deed and held to run with the land in favor of the seller, its successors and assigns, and to be binding upon the purchaser, his heirs and assigns, his and each of his lessees and tenants, sublessees or subtenants, as part of the consideration for the conveyance. There then follow certain reservations, provisions, conditions, and restrictions, which it is conceded by the parties are not involved in the question now presented.

The one acre, which is the subject of the contract of sale, is a portion of a larger tract of land containing 117 acres and a fraction, which by deed dated March 10, 1925, was conveyed to the appellee by the Dundalk Company, a corporation. The relations between the Dundalk Company and the Beth-Mary Steel Corporation, the appellee, were very close. One was a subsidiary of the other; and the witness Stingley, at the time of the deed of March 1925, was vice president of the Dundalk Company, and superintendent of real estate of the appellee. He had general supervision of the arrangements between the two companies which culminated in the execution of that deed. Mr. Stingley, after having had read to him the language contained in the first paragraph of restrictions appearing in the deed from the Dundalk Company to the appellee, of March 1925, was asked:

"Now, as agent of the Dundalk Company were you familiar with the deed from the Dundalk Company to Beth-Mary, and particularly with the language that I just read you? A. Yes, sir.

Q. Was it the intention of the Dundalk Company by the use of this language that I just read you, taken from the deed of March 10, 1925, to subject all of the land conveyed therein to the Sparks restrictions or to the restrictions set forth in the deed from the Eastern Land Company to Benjamin I. Sparks and wife? A. No, sir.

Q. What was the purpose? A. The purpose was to refer to the restrictions contained in the two deeds from Sparks and wife, and the Eastern Land Company to Sparks.

Q. Then am I to understand that it was not the intent of the Dundalk Company to create new restrictions which could be enforced by the Dundalk Company? A. No, no intention whatsoever.

Q. Was it the intent of the Beth-Mary Steel Corporation to create new restrictions? A. No, sir.

Q. In other words, Mr. Stingley, it is just simply a reference to the covenants affecting certain definite portions of the land conveyed? A. Yes, sir.

Q. And to simply call attention to those covenants? A. Yes, sir.

Q. And not to apply those covenants to all of the whole tract? A. That is right, sir."

On cross-examination this witness testified:

"Q. Subsequent to the deed of 1925 and subsequent to the re-acquiring of portions of the property described in the deed of 1925, had you made any conveyances of any portion of your general holding down there in which you have restricted the land so sold against its use for distillery purposes? A. You are talking about Dundalk?

Q. Yes. A. We have, yes, sir. In the residential section, we, of course, put general restrictions on, that includes distilleries and selling of liquors.

Q. Do I understand you to say that you have approximately divided up your entire holding, and some portion you dedicated or set aside for dwelling purposes and others for business purposes? A. That is correct.

Q. Do you mean to say that only as to the portion which you have set aside for dwelling purposes that you recorded restrictions which would prohibit use for distillery purposes? A. That is correct.

The Court: And this piece of property is not in that section?

Q. (by Mr. Fairbank) This one acre of land more or less contracted to be sold to Ferguson, what particular section of your entire hold is that located in, that is whether it is located in the residential section or the section devoted or set aside for business? A. That is located on the Baltimore & Ohio Railroad dedicated for industrial purposes."

The Dundalk Company was the owner of a large tract of 800 or 900 acres in the general vicinity of Dundalk, which it had acquired from several different grantors. A portion of this large holding was the land mentioned and described in a deed dated November 29, 1913, from John W. Sparks to Benjamin I. Sparks, containing 93 acres more or less. The habendum clause of this deed contained this language: "To have and to hold the lot of ground above described, unto and to the use of the said Benjamin I. Sparks, his heirs and assigns, in fee simple, forever, subject however to the following condition, which is hereby entered into by the party of the second part for himself, his heirs and assigns, with the said John W. Sparks, his heirs and assigns, as a part of the consideration for this deed; that at no time shall any part of said land be used or occupied for the manufacture, brewing, distilling or the sale of spirituous or malt liquors, nor shall the lots or any part thereof, or any building erected thereon, or any part thereof, at any time hereafter, be used or occupied as a drinking saloon."

Another portion of the large holding of the Dundalk Company was mentioned and described in a deed from the Eastern Land Company to Benjamin I. Sparks dated April 7, 1917, conveying one acre of land more or less. This deed contains certain restrictions, covenants and agreements between the parties to the deed, and binding their heirs, successors, and assigns, as a part of the consideration for the conveyance. Among these covenants and restrictions are: That the premises conveyed shall be used and occupied for residence purposes only, and not otherwise; that no nuisance of any kind shall be maintained or allowed thereon, or any use thereof made or permitted which shall be noxious or dangerous to health; and that the grantor agrees that restrictions will be imposed upon property lying within a block of the tract of land hereby conveyed, prohibiting the location thereon of any saloon, manufacturing establishment, or business shops.

The record discloses that within the boundaries of the 93-acre tract of land which was conveyed by the Dundalk Company to the appellee there is included a small tract, possibly 5 or 6 acres, of the Benjamin I. Sparks land, which he had obtained from John W. Sparks by the deed of November 29, 1913, and also a very small portion of land which was located within a block of the one-acre tract obtained by Benjamin I. Sparks from the Eastern Land Company by deed of April 7, 1917; that the one acre of land sold to the appellant is a distance of approximately 2,500 feet from the portions of land upon which were imposed restrictions heretofore mentioned in the deeds to Benjamin I. Sparks, and Benjamin I. Sparks...