Newbold v. Peabody Heights Co.
| Decision Date | 27 March 1889 |
| Citation | 17 A. 372,70 Md. 493 |
| Parties | NEWBOLD v. PEABODY HEIGHTS CO. OF BALTIMORE. |
| Court | Maryland Court of Appeals |
Appeal from circuit court of Baltimore city
The bill in this case was filed for the specific performance of a contract of purchase of certain real estate. The Peabody Heights Company, the plaintiff in the case, is a land improvement company organized for the purchase, improvement and sale or lease of real estate. In June, 1888, it sold to the defendant a parcel of ground, formerly in Baltimore county, but now within the limits of the city of Baltimore as extended. By the contract of sale the plaintiff agreed to make to the defendant a good and sufficient title in feesimple, free and discharged of all restrictions and incumbrances. To the title offered to be conveyed by the plaintiff the defendant objects, upon the ground that such title would be subject to certain restrictive covenants and conditions of which he has acquired notice since the time of the contract of purchase. It appears that William Holmes since deceased, being the owner of a parcel of land called "Lilliendale," containing about 36 acres, lying in that portion of Baltimore county recently annexed to the city of Baltimore, agreed with certain parties, who at the time contemplated the formation of a joint-stock improvement company (of which Holmes was to be a large stockholder) to execute a lease of such land, with certain conditions for the redemption of the ground rents, with the exception of a block or square of 400 feet front, which he reserved for his own use and purposes, and upon which he intended to build a residence. This agreement bears date the 20th of September 1870, and in it there is a stipulation to the effect that reference shall be made to a certain memorandum appended thereto, dated the 13th of September, 1870, for the better explanation of the agreement for the lease, and for further details in reference thereto, and especially as to the joint-stock company referred to in the agreement, and which memorandum, as stated, had been approved and agreed upon by the parties as the basis of the agreement for the lease to be thereafter executed to the company to be formed. The memorandum referred to had been made by Mr. George W. Tinges, a real-estate agent, acting for Holmes, and among other things it contained respecting the joint-stock company to be formed were certain conditions and restrictions, under the head of "Plan of Company," and "By-Laws," which were: The company contemplated by the agreement to which this memorandum was appended was duly incorporated on the 1st of October, 1870. The lease of the land was executed by Holmes to the company on the 14th of October, 1870, but without any special reference to the preceding agreement or memorandum. The lease was placed in escrow until certain conditions were performed, and in the mean time, that is to say, on the 19th of October, 1870, Holmes and the company executed, under hand and seal, what would appear to be an agreement supplemental to the lease, and to be considered in connection therewith. By this latter or supplemental agreement it is recited and agreed as follows: "Whereas, there were matters of detail agreed upon as the basis of the purchase and sale of the property aforesaid, which were contained in the agreement or contract of sale first above referred to, but which could not be conveniently set forth in the lease, and therefore the said William Holmes and the Peabody Heights Company 'do hereby covenant with each other that the agreement or contract of sale, with the memorandum attached thereto, dated 20th September, 1870, (and to which this agreement is now appended,) shall be binding upon them and their assigns, so that the covenants, requirements, restrictions, regulations, and reservations contained therein shall be fully complied with and carried out as if they had been embodied in the lease of the property therein referred to, or as if the said Peabody Heights Company had been one of the original contracting parties.' " It is shown that Holmes, in his life-time, and those representing his estate since his death, have conveyed portions of the property embraced in the lease to the company in extinguishment of the ground-rents, and that in none of such conveyances has any reference been made to the restrictions and conditions referred to in the agreement of the 19th of October, 1870. It is also shown that the plaintiff company has conveyed portions of the land acquired from Holmes to third persons, without making any reference to such restrictions or conditions, except in one instance, that of a conveyance to Mr. Polk, dated in 1872, which was made subject to the rules and regulations of the Peabody Heights Company, in regard to the character, location, and uses of the buildings upon the lot conveyed. The lease was duly recorded, and it appears that the agreements to which reference has been made were filed as exhibits by the company in an equity proceeding in Baltimore county circuit court in respect to the land, and that they have been recorded as part of that proceeding. The defendant, by his answer, while admitting some of the allegations of the bill, puts the plaintiff upon proof of others, and then avers that he is advised that not only the owners of the square of ground retained by Holmes, as mentioned in the bill, but that also all present owners of any part of the entire ground leased by Holmes to the plaintiff, and by it subsequently sold or leased, would have the right to compel the observance of the covenants, restrictions, and conditions referred to in the bill by any owner of the property sold to him, etc. Proof was taken, and a decree passed pro forma against the defendant, and he has appealed.
Argued before ALVEY, C.J., and MILLER, ROBINSON, IRVING, STONE...
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