Lowes v. Carter
| Decision Date | 13 January 1915 |
| Docket Number | 62. |
| Parties | LOWES v. CARTER. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court No. 2 of Baltimore City; James M. Ambler Judge.
Suit by Elizabeth Tracy Lowes against M. Filmore Carter. From a decree for defendant, plaintiff appeals. Reversed and remanded.
Argued before BOYD, C.J., and BRISCOE, BURKE, URNER, STOCKBRIDGE and CONSTABLE, JJ.
Jefferson D. Norris and Geo. Dobbin Penniman, both of Baltimore (Edwin T. Dickerson, of Baltimore, on the brief), for appellant. Osborne I. Yellott, of Baltimore (C. A. Fairbank, Jr., of Baltimore, on the brief), for appellee.
In June, 1906, the appellant purchased from Frank H. Phelps a lot of ground in the suburbs of Baltimore forming part of a subdivision known as "Ridgewood Park." At that time Mr. Phelps was the owner of the greater part of the land embraced in the subdivision. His deed to the appellant, which referred to a plat of all the lots in Ridgewood Park contained covenants that the lot conveyed should be used for residence purposes only; that not more than one dwelling should be built on the lot, and at a cost of not less than $3,500; that the front of the dwelling should conform to the line already established by other buildings on the same side of the avenue on which the appellant's lot abutted; that no stable should be erected within 75 feet of any street; and that no fence or detached outbuilding should be maintained on the premises. These covenants were expressed as binding the grantee and her heirs and assigns, and as running with the land, for the ensuing period of 15 years. They were followed in the deed by a covenant on the part of the grantor:
"That each and every one of the lots of ground now owned by the said party of the first part in Ridgewood Park, as designated on the plat above referred to, shall be subject to all of the restrictions above enumerated, whether the said lots be sold or retained by the said party of the first part not to include any temporary structures used in connection with improving property."
Subsequently to this conveyance Mr. Phelps executed deeds for other lots in the subdivision which were subjected to restrictions similar to those just mentioned. In 1912 he mortgaged 17 of the lots then remaining in his ownership to secure a loan of $14,000. The mortgage contained no restrictions as to the use of the property, and made no reference to the covenant for that purpose in the appellant's deed. Upon a foreclosure of the mortgage the 17 lots it covered were sold, and the title conveyed to the appellee, who was thereafter preparing to build 14 dwellings on 5 of the lots, at a cost of $3,250 for each of the houses, when he was required to meet the present suit for an injunction.
The theory of the appellant's bill is that the effect of the covenants in her deed was to subject the grantor's remaining lots to the specified restrictions, and to bind his subsequent grantees to their observance. It is accordingly asserted that the appellee, having purchased a part of the land after the restrictions had been thus imposed upon it by an instrument duly executed, acknowledged, and recorded, is bound by the covenants, and is acting in violation of their terms in undertaking to erect more than one dwelling upon a single lot as platted and at less than the prescribed cost. The appellee's answer to the bill relies upon the fact that the mortgage under which he obtained title placed no limitations upon the use of the property, and avers that, when he received his deed for the lots upon which he was about to build, he had no knowledge of the covenants upon which the appellant bases her suit. It is denied that the restrictions in question have any binding effect upon the remaining land of the grantor, and it is alleged that their insertion in the appellant's deed afforded no constructive notice of their existence or terms to subsequent purchasers.
The proof in the case shows that the appellee had no actual knowledge of the covenants in the appellant's deed until after his own title had been acquired. It appears from the testimony that, while the title was examined and insured for the appellee by a title guaranty company, and while the conveyance to the appellant was noted in the course of the investigation, her deed was not scrutinized farther than was necessary to ascertain that it did not grant any of the lots bought by the appellee, and the restrictions contained in the recorded instrument were consequently not observed. The absence of actual knowledge on the part of the appellee as to the provisions here in controversy being satisfactorily shown by the evidence, and the court below being of opinion that no constructive notice resulted from the recording of the covenants in the appellant's deed, the conclusion was reached that there was no ground for the relief sought by the bill of complaint, and it was accordingly dismissed.
The nature of the interest created by covenants imposing conditions like those now under inquiry upon the use of land conveyed or reserved has been considered and settled by repeated decisions of this court. In the case of Thruston v. Minke, 32 Md. 487, it was held that the effect of a restriction as to the height of a building to be erected on a leased lot of ground, adjoining another building of which the lessor was an owner, was to create a right or interest in the nature of an incorporeal hereditament or easement appurtenant to the contiguous property and arising out of the parcel of land demised by the lease. The opinion in that case quoted, as appropriate to the facts there under review, the rule stated in Whitney v. Union R. Co., 11 Gray, 359, 71 Am. Dec. 715, that:
"When *** it appears, by a fair interpretation of the words of a grant, that it was the intent of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of the other land owned by the grantor, and originally forming, with the land conveyed, one parcel, such right will be deemed appurtenant to the land of the grantor and binding on that conveyed to the grantee, and the right and burden thus created will respectively pass to, and be binding on, all subsequent grantees of the respective lots of land."
This principle was said in Halle v. Newbold, 69 Md. 271, 14 A. 662, to be equally applicable whether the conditions or servitudes were imposed upon the land conveyed in favor of that retained, or upon the land reserved in favor of that granted. The question in the latter case was whether a covenant in a deed as to the character and cost of buildings to be erected on the ground retained by the grantor constituted such an incumbrance as to relieve from his purchase one who had contracted for a clear title. It was held that the covenant created an easement or servitude on the land, and that it was therefore incumbered within the meaning of the agreement of sale. The decisions of this court to which we have just referred were cited in Newbold v. Peabody Heights Co., 70 Md. 500, 17 A. 372, 3 L. R. A. 579, as supporting the general doctrine that a restrictive covenant between a vendor and vendee, in respect to the use of the property, is enforceable in a court of equity, regardless of the question as to whether or not, in a legal sense, it could be said to run with the land. In Peabody Heights Co. v. Wilson, 82 Md. 198, 32 A. 386, 1077, 36 L. R. A. 393, the same rule was applied, and the inquiry whether the conditions limiting the use of the property involved in the suit created a servitude or easement affecting the title was answered in the affirmative. A similar characterization of such restrictive covenants was adopted in Summers v. Beelet, 90 Md. 479, 45 A. 19, 48 L. R. A. 54, 78 Am. St. Rep. 446, Safe Deposit Co. v. Flaherty, 91 Md. 499, 46 A. 1009, Foreman v. Sadler's Executors, 114 Md. 577, 80 A. 298, and Wood v. Stehrer, 119 Md. 147, 86 A. 128, and the principle of these cases was applied also in Russell v. Zimmerman, 121 Md. 340, 88 A. 337, and Linthicum v. W. B. & A. Electric R. Co., 124 Md. 263, 82 A. 917, October term, 1914.
In some of the cases cited...
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