Mitchell v. Packham

• Decision Date: 06 March 1906
• Citation: 63 A. 219,103 Md. 693
• Parties: MITCHELL v. PACKHAM.
• Court: Maryland Court of Appeals

63 A. 219

103 Md. 693

MITCHELL v. PACKHAM.

Court of Appeals of Maryland

March 6, 1906

Appeal from Circuit Court, Baltimore County; Henry D. Harlan, Judge.

Suit by Beulah Polk Packham against George T. Mitchell. From a decree for plaintiff, defendant appeals. Affirmed.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, SCHMUCKER PEARCE, JONES, and BURKE, JJ.

John P O'Ferrall, for appellant.

George Whitelock and David Fowler, for appellee.

PEARCE, J.

This is a bill filed in the circuit court of Baltimore City by the appellee, to compel the specific performance by the appellant, of a written contract by which he agreed to purchase from her for the sum of $3,500, a certain described parcel of unimproved real estate in Baltimore City, and by which she agreed, upon payment of the purchase money, to convey said land to him by a deed to be executed at his expense, which should convey the property by a good and merchantable title. The sum of $100 was paid on the signing of the agreement, on September 19, 1905, but the appellant refuses to pay the residue of the purchase money and to accept a conveyance of the property because he alleges that the appellee cannot convey a good and merchantable title thereto, by reason of certain conditions and provisions contained in a deed from the North Baltimore Land & Improvement Company of Baltimore to Mary Polk, from whom the appellee derives her title, which conditions and provisions he alleges create a cloud upon her title. This deed bears date November 23, 1892, while the appellee's title was acquired under a deed from the Packham Glass Company of Baltimore City bearing date January 19, 1904. The conditions and provisions contained in the deed from the North Baltimore Land & Improvement Company of Baltimore City are four in number. The first of these conditions is that no intoxicating beverages shall be sold or offered for sale on the premises and that no saloons or places for sale of intoxicating drinks, and no slaughter houses, or factories of any kind, or nuisances of any description shall be erected on the property; and the fourth is that no stable or stables shall be erected on said property within 70 feet of the building lines of Tenth Street West, or 40 feet of Pressbury street. The bill, however, alleges, and the answer admits, that the appellant has abandoned and waived all objections to the appellee's title to the property in question, so far as refers to said first and fourth conditions, and they may therefore be dismissed from consideration, except to observe that they are both general and unqualified restrictions upon title, the one forbidding any sale of any intoxicating liquor, or the erection of any place for the sale of liquor or of any slaughter house, factory, or nuisance of any description on the property; and the other forbidding the erection of any stable within certain lines. The remaining conditions, which are relied on, are as follows: "(2) That not more than two dwellings shall be erected on said property within 10 years next after the date of these presents. (3) That such dwellings so erected upon the property shall set back at least 15 feet from the building lines of Tenth Street West, and Pressbury street, and shall each aggregate in the cost of...