Fitzsimmons v. South Realty Corp.

• Citation: 159 A. 111,162 Md. 108
• Decision Date: 02 March 1932
• Docket Number: 101.
• Parties: FITZSIMMONS v. SOUTH REALTY CORPORATION.
• Court: Court of Appeals of Maryland

159 A. 111

162 Md. 108

FITZSIMMONS v. SOUTH REALTY CORPORATION.

No. 101.

Court of Appeals of Maryland

March 2, 1932

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

Bill by South Realty Corporation against Carroll F. Fitzsimmons. From the decree in favor of the complainant, defendant appeals.

Affirmed.

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

Michael F. Delea, of Baltimore, for appellant.

Coady & Farley, of Baltimore, for appellee.

PATTISON J.

The appellee, the South Realty Corporation, by written agreement or contract of sale, sold a lot or parcel of ground situated in Baltimore county, Md., in fee simple unto the appellant Carroll F. Fitzsimmons, at and for the sum of $7,000, of which amount $500 was paid in cash at the time of the execution of the contract, and the balance was to be paid within thirty days thereafter. It appears that the lot so sold was acquired by the appellee by deed of conveyance from the A. J. Watkins Realty Corporation, and that the corporation last named had acquired it by deed of conveyance from one Clara Bell, who had acquired it by deed of conveyance from Henry C. Kaufman.

The deferred payment was not made at the time it became due and owing, and, as a result thereof, the South Realty Corporation filed its bill of complaint alleging the sale as stated Fitzsimmons' refusal to pay the deferred payment of purchase money, and its readiness and willingness to convey the property upon the payment of the balance of the purchase money. The bill concluded by asking for the specific performance of the contract of sale.

The defendant filed his answer admitting the execution of the contract of sale and his refusal to pay the deferred payment of purchase money. He gave as a reason for his refusal to pay the same that the South Realty Corporation did not have a marketable feesimple title in said property, because of the following restrictions and limitations found in the afore-mentioned deeds (from Henry C. Kaufman to Clara Bell, and from Clara Bell to the A. J. Watkins Realty Corporation):

"First: That at no time shall any part of the said land be used or occupied for the manufacture, brewing, distilling or sale of spirituous or malt liquors, nor shall the said lot or any part thereof or any building erected thereon at any time hereafter be used or occupied as a tavern, drinking saloon, bone boiling establishment, tannery, slaughter house, glue, soap, candle, starch or gunpowder manufactory, nor for other offensive or dangerous purposes, nor for the keeping of pigs or other animals of like offensive character, nor shall any signs for advertising purposes be erected or placed thereon.

Second: No barn, stable, crops, garage or other outbuilding shall be erected nearer to Leeds Avenue on which said lot has two fronts, than one hundred feet, nor be less than ten feet in any dimensions. Third: That no building, excepting outbuildings, shall be erected, upon said lot which shall cost less than twenty five hundred dollars and that no part of any building erected upon said lot including porch, veranda, bay windows and all projections shall be at least twenty five feet away from Leeds Avenue, and that the main front of any main building erected upon said lot shall face the sixty eight feet, two inches line of said lot and shall be parallel thereto as nearly as architecturally proper and possible."

In the deed from A. J. Watkins to the South Realty Corporation, these restrictions and limitations are omitted.

The plat found in the record made by Henry C. Kaufman, the developer, in July, 1915, and filed for record among the land records of Baltimore county on September 17, 1919, consisted of two parcels of land lying and being on the westward side of Leeds street. The first of these was acquired by Henry C. Kaufman and Annie S. Kaufman, his wife, as tenants by the entireties from the Leeds Land & Improvement Company by deed dated June 25, 1896. The second parcel was acquired by Henry C. Kaufman from L. Frank Gerber and wife, by deed dated November 2, 1908. The parcel held by Kaufman and wife was divided into six lots, five of which were designated as A, B, C, D, and E. The sixth lot, which adjoined the second parcel of land, had no designation. On January 29, 1913, Annie S. Kaufman, the wife, died, at which time Henry C. Kaufman, the husband, became the owner in fee simple of said lot or parcel of land. At this time he was likewise the owner in fee of the second parcel acquired by him in 1908 from Gerber and wife. This parcel of land was divided into twenty-two lots numbering one to twenty-two, inclusive. On December 1, 1916, he sold and conveyed the lot in question, which was lot No. 1 on the plat, unto Clara Bell, the wording of the grant being "unto Clara Bell, her heirs and assigns, in fee simple, forever, subject however, to the restrictions, conditions and limitations hereinafter mentioned," which restrictions, conditions, and limitations have hereinbefore been set out in full. In 1919, he conveyed to different purchasers the entire lot formerly held by him and his wife, adjacent to lot No. 1, the lot here in question, the conveyances therefor containing no restrictions or limitations whatever.

After the sale of lot No. 1, some of the remaining lots were sold, others were leased, and others remained unsold at the death of Kaufman. Some of those sold or leased contained the restrictions named, some restrictions differing from those mentioned, and others no restrictions or limitations whatever. For instance, lot No. 3, separated from lot No. 1 by lot No. 2, having only a frontage of fifty feet, was sold without restrictions.

Henry C. Kaufman died on February 12, 1921, leaving a last will and testament by which he devised and bequeathed all his title or interest remaining in him in the lands mentioned to Harry J. Kaufman and Walter C. Kaufman, trustees, in whom were vested full power of sale. Thereafter, the said trustees conveyed unto those to whom the lots had been leased for the term of ninety-nine years, renewable forever, a fee-simple title, inserting in the deed of conveyance certain restrictions and limitations in most instances varying from the restrictions and limitations contained in the deed in question. This was done whether the lease did or did not contain restrictions or limitations.

In the stipulation or agreed statement of facts found in the record it is conceded that in none of the deeds or leases for the lots mentioned was found any "wording binding the heirs, assigns, or successors of the grantors, grantees, lessors or lessees, as to said 'covenants, conditions,...