Martin v. Weinberg, 19

• Decision Date: 08 December 1954
• Docket Number: No. 19,19
• Citation: 205 Md. 519,109 A.2d 576
• Parties: John F. MARTIN et ux. v. Jacob WEINBERG et al.
• Court: Maryland Court of Appeals

Page 519

205 Md. 519

109 A.2d 576

John F. MARTIN et ux. v. Jacob WEINBERG et al.

No. 19.

Court of Appeals of Maryland.

Dec. 8, 1954.

W. Harvey Beardmore, Annapolis, and Edwin H. Brownley, Baltimore (Albert J. Goodman, Annapolis, on the brief), for appellants.

James C. Morton, Jr., Annapolis (Rouse & Morton, Annapolis, on the brief), for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from a decree permanently enjoining the appellants from using lots 27 and 28, Block O, Murray Hill, in the City of Annapolis, for a parking lot. The question turns on the validity and enforceability of certain restrictions in the deeds.

In 1890, the owners of nine of the ten tracts into which a large tract had been divided by the heirs of James Murray, subdivided these tracts into lots according to a plat known as 'Melvin's plan of Murray Hill', which was placed on record in 1896. In 1914, four exchange deeds, which further partitioned certain of the lots among some of the Murray heirs, were placed on record. Each deed contained restrictions, of which the following are typical:

'Upon these express conditions, nevertheless, that the said Sarah Murray Hartshorne, her heirs and assigns, shall not build or erect, or suffer to be built or erected, a building of any character whatever in those portions of Lots Number '22' in Block 'I', and Number '3', in Block 'K', lying between the Northeasterly line of Southgate Avenue and a building line parallel therewith and distant twenty-five (25) feet Northeasterly therefrom; * * * nor in those portions of Lots Numbers 19, 21, 35 and 37 in Block 'O' lying between the Southwesterly line of Steele Avenue and a building line parallel therewith and distant twenty (20) feet Southwesterly therefrom.

'And Further, shall not build or erect or suffer to be built or erected, more than one dwelling house, with the necessary outbuildings incident thereto, on each of Lots Number 22, in Block 'I' * * *, Numbers 19, 21, 35 and 37 in Block 'O', all of which said dwelling houses shall be used for residence purposes only; and which said dwelling houses in each of Lots Number 22 in Block 'I', * * * shall cost not less than Three Thousand ($3,000.00) Dollars each and those on each of Lots Numbers * * * 19, 21, 35 and 37 in Block 'O', shall cost not less than two thousand ($2,000.00) each.'

It is conceded that not all of the lots conveyed were made subject to the restriction as to use for residence purposes, but it may be stated generally that the restriction applied to all lots fronting on Southgate and Steele Avenues, with the exception of lots 39, 41, 43, 45 and 47 in Block O, adjacent to the rear of certain business properties fronting on West Street, and three lots in Block K, in the same situation. It is true that there were also a few lots in Block O not conveyed in the four deeds and hence unrestricted.

It was shown in the testimony that a resurvey was made in 1932 and placed on record in 1938. This was occasioned by the opening of a new diagonal street known as Fifth Street, and included a renumbering of the lots in the various blocks. Lots 27 and 28, Block O, fronting on Steele Avenue, now comprise all of lots 31, 33, 35 and 37 of the original plat, except for the portions now in the bed of Fifth Street and in the new lots across said street. In addition, lot 27 comprises a small corner of lot 32, formerly fronting on Stewart Avenue, which was unrestricted, and a small corner of lot 39, which was likewise unrestricted.

This suit was originally instituted by the appellees against Robert Taylor and Clara E. Taylor, his wife, who acquired lots 27 and 28 from the Murray heirs. The deed of lot 28 to the Taylors in 1952 contained the provision 'subject to restrictions of record pertaining to this development'. This sale was effected in 1938 by Mr. Lazenby, a real estate agent. A letter to him from the Murray heirs stated that 'lot 28 is made up of portions of lots 33, 35, 37 and 39, as shown on the original plat of Murray Hill,' and the division of the proceeds was agreed upon. He testified that he advised the purchasers the property was restricted to use for residence purposes only. The appellants purchased lots 27 and 28 from the Taylors in 1953, while the present suit was pending. There can be no doubt that they had actual knowledge of the claimed restriction.

The appellants do not challenge the fact that the appellees are assignees from the Murray heirs of lots in the immediate vicinity, but contend that the restriction in ineffective because it does not bind the heirs and assigns of the grantors, although it does expressly bind the heirs and assigns of the grantees. Another clause in each deed recited that 'The interest hereby conveyed by the said parties of the first part in the above described premises, being an undivided three-fourths (3/4) interest therein now vested in them, and the other undivided one-fourth (1/4) interest being now vested in said parties of the second part, the purpose of this deed is to vest in said parties of the second part the whole title to said described premises in severalty.' Each grantee thus retained a one-fourth interest in the particular lots wherein the three-fourths interest was conveyed, and in turn conveyed his undivided interest in the other lots. We think the deeds must be construed together. 'Deeds made by tenants in common among themselves for the partition of land should be construed together as one instrument, and the general intent of all the deeds should govern.' 4 Thompson, Real Property (Perm. Ed.) § 1963. Before the conveyances the four heirs held all of the lots involved in common. After the conveyances, each was the grantee of a three-fourths interest from the other heirs. We find from the deeds themselves, and the surrounding circumstances, clear evidence of an intention to bind all of the lots involved. Cf. Silberman v. Uhrlaub, 116 App.Div. 869, 102 N.Y.S. 299. The situation is unlike that where land is retained by a grantor without a covenant to bind his assgins. Here no purchaser from any of the parties could take title to any lot except by assignment from a grantee. In legal effect, we think the acceptance of mutual deeds subject to the conditions stated amounted to promises by the grantees, their heirs and assigns, to abide by the restrictions. Levy v. Dundalk Co., 177 Md. 636, 643, 11 A.2d 476. Since the promises can be implied from the deeds and surrounding circumstances it is unnecessary to rely upon a uniform general scheme or plan of development. Raney v. Tompkins, ...