Hill v. Towson Realty, Inc.

• Citation: 221 Md. 389,157 A.2d 796
• Decision Date: 11 February 1960
• Docket Number: No. 96,96
• Parties: Nannie Grason HILL et al. v. TOWSON REALTY, INC., et al.
• Court: Court of Appeals of Maryland

Page 389

221 Md. 389

157 A.2d 796

Nannie Grason HILL et al. v. TOWSON REALTY, INC., et al.

No. 96.

Court of Appeals of Maryland.

Feb. 11, 1960.

John Warfield Armiger, Towson (John Grason Turnbull, Towson, on the brief), for appellants.

Richard C. Murray and W. Lee Harrison, Towson (Paul J. Wilkinson, William B. Kempton and Sidney Blum, Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

Complainants' bill in equity seeking an injunction to prevent the use of any part of a sixteen acre parcel of land for any purpose other than the burial of the human dead and to require the appellees to vacate and remove structures theretofore erected or being erected thereon was dismissed, the chancellor finding that there had been no 'dedication' of the entire sixteen acres for the purposes of a cemetery; that there was no 'intention of reverter' evidenced in prior deeds transferring the property; and that there was, in fact, no impairment of the 'integrity' of the portion thereof actually used as a cemetery.

In 1890, William Grason and wife (ancestors of the plaintiffs) deeded unto John and Henry Longnecker the entire sixteen acre parcel of land. It is roughly triangular in shape, being bounded on the west by York Road, and on the east by Dulaney Valley Road, and it fans out as those two roads diverge northward from the center of Towson. This deed conveyed the property in fee simple and contained no restrictions or reservations, nor did it provide for any possibility of reverter or right of re-entry. However, the being clause contained a recital which, in part, stated:

'Being part of that * * * land which * * * was allotted to Benjamin Chew (upon condition that the said lot or parcel of land is to be used and maintained as a cemetery). * * * it being the intent of the parties hereto that said tract of land is to be kept and maintained as a cemetery.'

On November 25, 1891, The Prospect Hill Cemetery Company of Baltimore County was incorporated and it held title to the tract from December 7, 1891, until January 22, 1941, when it conveyed the same to Erwin Huber and Ethel B. Huber, his wife. There was no testimony with respect to the subject property for the 50 years this corporation was in title, other than offering into evidence a duplicate register of certificates for cemetery lots. The same form of certificate is still in use although the name of the cemetery has changed several times. These certificates purport to convey to the purchaser a lot of ground in the cemetery with the following habendum clause:

'To have and to hold the herein above granted land and premises, unto the said * * * his heirs and assigns, forever, in fee, for the purpose of sepulchre only; subject, * * * to such rules and regulations of said Company as are now in force, and to such other rules and regulations as may hereafter be adopted for the management of said Company and said Cemetery; * * *.' (Italics supplied.)

The certificates were signed in each instance by the president of the then cemetery company and witnessed by the secretary, but none was acknowledged.

Subsequent to the acquisition of this tract by the Hubers in 1941, an annual and perpetual care schedule was adopted which reflects the fact that lots sold prior to that time did not include any perpetual care, but such lot owners had been charged an annual fee for up-keep. The Hubers also adopted a schedule of burial charges effective December 1, 1946, and in January, 1941 had adopted rules and regulations which show that Mrs. Huber was the 'operating owner' of the property, and Mr. James H. Hope was the manager. These rules and regulations reflect the right of the ownership to regulate the cemetery in all respects.

On February 2, 1954, Mrs. Huber (then a widow), her son and daughter formed a corporation known as Prospect Hill Park, Inc., and on February 5th of the same year caused the property to be transferred to that corporation. This deed contained the usual warranties and was subject only to 'the rights of the owners of all lots heretofore sold for burial purposes.' On March 4, 1954, a portion of the northernmost part of the tract was sold to Baltimore County, Maryland, for the construction of the new Towson Beltway.

The corporation re-conveyed the balance of the tract to Mrs. Huber individually on July 29, 1957. Mrs. Huber next conveyed approximately 11 acres of the tract to L. Scott Brooks and wife on July 31, 1957, and later conveyed the 4 acres here involved to Towson Realty, Inc. on April 22, 1958. She finally sold the remaining portion of the original tract to the Towsontown Motor Hotel Corporation on November 6, 1958. Since the appellants complain that the original 16 acres has now been reduced to approximately 7 acres, it is important to note that this result was reached by the action of Mrs. Huber in conveying only 11 acres to Brooks some nine months prior to the deed to Towson Realty and the further action of Brooks in conveying only 7 of the 11 acres which he had received to a corporation known as 'Prospect Hill Cemetery, Inc.' as an operating company for the cemetery itself. The value of the improvements sought to be removed is in excess of $600,000.

The above summarizes a sufficient portion of the evidence to commence the consideration of the questions raised. More facts will be added as needed.

I and II.

The appellants' first two contentions may be combined for consideration. They argue (a) that 'a recital in a deed specifying the use which may be made of a property is binding upon the parties thereto and their privies'; and (b) that 'such recitals are effective means of demonstrating the owners' intention to dedicate and coupled with acceptance will constitute dedication.'

(a).

This contention of the appellants is, of course, based upon the recital heretofore quoted from the deed from the Grasons to the Longneckers in 1890. It is completely and fully answered by a line of Maryland cases, including Columbia Bldg. Co. v. Cemetery of Holy Cross, 155 Md. 221, 141 A. 525, 526. In that case, land of approximately the same area involved in the case at bar (about 16 acres) was conveyed, in fee simple, to a corporation, 'subject nevertheless that * * * the said lands to be held and used by the Cemetery of the Holy Cross * * * as a cemetery for the burial of deceased Catholics on such terms, under such regulations and as the Cemetery of the Holy Cross may hereafter agree upon and determine.' After holding and using the land as a cemetery for more than fifty years, the corporate grantee agreed to sell a portion thereof and to convey the same in fee simple by a good and merchantable title to the purchaser. The purchaser refused to consummate the purchase, because of the above mentioned proviso in the seller's deed. The Court recognized that there is nothing unlawful in creating a condition subsequent in a deed, and, while conditions that tend to destroy estates are not favored in law, if the language used clearly and unmistakably indicates an intention to create a condition subsequent, the intention controls. The Court pointed out, however, that there was nothing in the deed that indicated an intention on the part of the grantors that in the event changed conditions made it unwise or impracticable to continue to use the land or any part of it as a cemetery that it should revert to the heirs of the grantors if not so used, and held that the proviso was...