Forman v. Safe Deposit & Trust Co. of Baltimore

• Decision Date: 13 January 1911
• Parties: FORMAN v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE et al.
• Court: Maryland Court of Appeals

80 A. 298

114 Md. 574

FORMAN v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE et al.

Court of Appeals of Maryland

January 13, 1911

Appeal from Circuit Court of Baltimore City; Alfred S. Niles, Judge.

The Safe Deposit & Trust Company of Baltimore and others executors, sold a lot to Alexander A. Forman, and from an order ratifying and confirming the sale, said Forman appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE THOMAS, PATTISON, and URNER, JJ.

German H. H. Emory, for appellant.

William M. Ballou and Charles F. Stein, for appellees.

BURKE J.

The appeal in this case is from an order of the circuit court of Baltimore city by which a sale of a lot of ground located at the southwest corner of Edmondson avenue and Eighteenth street in Baltimore city made by the appellees, as executors of Warren H. Sadler, deceased, to the appellant was finally ratified and confirmed.

The record shows that on the 4th of April, 1895, William A. Oakes and others conveyed to the Lyndhurst Improvement Company of Baltimore city, a corporation, a tract of land containing 286 acres, more or less, located partly in Baltimore city and partly in Baltimore county, and that on the same day that company executed a purchase-money mortgage on the whole tract to the Guardian Security Trust & Deposit Company of Baltimore city to secure an issue of $240,000 of 6 per cent. coupon bonds. On September 18, 1899, the company conveyed in fee to Esther C. Lambdin three parcels of said land, each parcel being described in the deed by metes and bounds. The restriction complained of in this case is found in the habendum clause of this deed, and is as follows "Provided, however, that the property herein mentioned shall be used only for residence purposes, and that each dwelling erected thereon shall not cost less than $4,000 and further provided that no liquors shall be sold on the premises."

By deed dated May 16, 1900, Esther C. Lambdin and husband conveyed in fee to Warren H. Sadler and wife, subject to the same restriction, one of these lots (the lot sold to the appellant), as tenants by the entirety. Mrs. Sadler died before her husband, and by operation of law he became the sole owner of the lot, subject to the legal effect, if any of the restriction mentioned. The sole claim made by the appellant is that the title to the lot is now subject to the operation and effect of the restrictive covenant contained in the deeds from the Lyndhurst Company to Mrs. Lambdin and from Mrs. Lambdin and husband to Sadler and wife, and that either of said grantors could enforce that covenant against him as the grantee of the lot. The only question, therefore, presented by this appeal is: Can the appellees convey to the appellant a title to the lot sold free and clear of the restrictions imposed by the deeds referred to as to the mode of improvement and use of the property?

This restriction did not create a condition subsequent. It has been held repeatedly by decisions of this court and elsewhere that words in a grant indicating the use to which property is to be applied do not of themselves create a condition subsequent. Kilpatrick v. Baltimore, 81 Md. 195, 31 A. 805, 27 L. R. A. 643, 48 Am. St. Rep. 509; Faith v. Bowles, 86 Md. 13, 37 A. 711, 63 Am. St. Rep. 489; Baltimore City v. Day, 89 Md. 555, 43 A. 798.

It is shown that the Lyndhurst Improvement Company sold and conveyed in fee to various persons parcels of the tract without restrictions of any kind, and that the restriction found in the deed to Mrs. Lambdin is the only one imposed by the company in any of its conveyances. The mortgage to which we have referred was foreclosed, and all the property owned by the Lyndhurst Company at the date of the foreclosure was sold free and clear of any restrictions. The evidence shows that Mrs. Lambdin in dealing with the property acquired under the deed from the Lyndhurst Company violated and disregarded the restrictions in important respects. She sold unimproved portions of the property without restrictions, and improved other portions by erecting dwelling houses costing less than $4,000, which she sold free of the restrictions. Mrs. Lambdin has disposed of all the property acquired by the deed of September 18, 1899, from the Lyndhurst Company, except possibly a strip, not connected in any way with the lot sold in these proceedings, 1 foot wide and 110 feet long. Upon this state of facts we have no difficulty in affirming the decree of the lower court. The law upon the subject of restrictive covenants affecting real estate has been fully treated in cases in this court. Thurston v. Minke, 32 Md. 487; Halle v. Newbold, 69 Md. 265, 14 A. 662; Newbold v. Peabody Heights Company, 70 Md. 499, 17 A. 372, 3 L. R. A. 579; Peabody v. Willson, 82 Md. 186, 32 A. 386, 1077, 36 L. R. A. 393; Summers v. Beeler, 90 Md. 474, 45 A. 19, 48 L. R. A. 54, 78 Am. St. Rep. 446; Dawson v. Western Maryland R. R. Co., 107 Md. 70, 68 A. 301, 14 L. R. A. (N. S.) 809, 126 Am. St. Rep. 337.

There is nothing in the language of the two deeds (the deed from the Lyndhurst Company to Mrs. Lambdin and the deed from her and her husband to Mr. and Mrs. Sadler) to indicate an intention on the part of the...