Halle v. Newbold
| Decision Date | 13 June 1888 |
| Parties | HALLE v. NEWBOLD. |
| Court | Maryland Court of Appeals |
Appeal from circuit court of Baltimore city.
Argued before ALVEY, C.J., MILLER, BRYAN, ROBINSON, MCSHERRY, and STONE, JJ.
John J. Dobler, for appellant.
John P. Poe, for appellee.
In 1855 the heirs of Caroline Donaldson owned in fee a tract of land lying on Fulton street, in Baltimore city. Thomas Donaldson who was one of the heirs of Caroline Donaldson, took, in 1855, a deed from the other heirs for a lot on Fulton street to himself in severalty. In the deed from the other heirs of Caroline Donaldson to Thomas Donaldson there is this covenant: "And the said parties of the first part [the grantors] hereto, for themselves, their heirs, executors administrators, and assigns, do hereby covenant with the said Thomas Donaldson, his heirs and assigns, that no improvement shall be built upon any of the lots now belonging to the parties to these presents, and bounding upon said Fulton street, inferior to that which George B. Taylor and John W. Jevens have contracted with the party of the second part hereto [Thomas Donaldson] severally to erect on the piece of ground hereinbefore described and conveyed, which said party of the second part has contracted to sell in two lots of equal size to said Taylor and Jevens, towit, a house not less than twenty feet on said Fulton street, and of proportionate depth, and three stories in height, or a cottage equal in value, as an improvement, to such a house as that just described." Thomas Donaldson subsequently died, leaving Mary E. P. Donaldson, his wife, all his real estate for life, with full power of sale. In March, 1888, the said Mary E. P. Donaldson, and the other heirs of Caroline, sold and conveyed a lot of land on Fulton street to Daniel M. Newbold in fee, "subject, however, to the operation and legal effect, if any, of the covenants contained in a deed from John J. Donaldson et al. to Thomas Donaldson, recorded among the land records of Baltimore city, aforesaid, in Liber E, D, No. 99, folios 162 and 166, and of the covenant between John J. Donaldson et al. and John W. Jevens et al., recorded among the land records, aforesaid, in Liber G, E, S, No. 185, folios 252, 256." Newbold subsequently leased a part of said lot, fronting 14 feet 8 inches on Fulton street, to George H. Callis, and then sold the rent reserved in said lease to Philip Halle, the appellant, to whom he guarantied a clear title.
The question of the effect and operation of the covenant in the deed of 1855 from the heirs of Caroline Donaldson to Thomas Donaldson is the one presented for our determination. It is apparent from the above statement of facts that if the covenants in the deed of 1855 from John Donaldson et al. to Thomas Donaldson are effective, either because it runs with the land, or can be enforced by a court of equity as an easement or servitude, that the title is not clear, but incumbered with conditions that may most materially affect the value of the lot. A house 20 feet front cannot be built on a lot of 14 feet 8 inches, and the purchaser has only the choice between leasing the lot unimproved, or purchasing the right to build a house of less frontage by procuring a release of the condition. We cannot distinguish this case, in principle, from the case of Thurston v. Minke, 32 Md. 487, 571. In that case, Thurston and Minke were tenants in common of an hotel, and a vacant lot adjoining, in the town of Cumberland; Thurston owning one and Minke three-fourths of the property. Thurston leased to Minke, for a long period, his interest in the vacant or unimproved part of the property. It was provided in the lease that the lessee should not erect any building on the vacant lot which should be higher than the present level of the third story and floor of the hotel building. Thurston filed a bill in equity, alleging that Minke was about to construct a building on the vacant lot higher than was permitted by the covenant in the lease, and praying for an injunction. This court decided that the effect of the...
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