Peabody Heights Co. of Baltimore City v. Willson
Decision Date | 20 June 1895 |
Citation | 32 A. 386,82 Md. 186 |
Parties | PEABODY HEIGHTS CO. OF BALTIMORE CITY v. WILLSON. [2] |
Court | Maryland Court of Appeals |
Appeal from circuit court of Baltimore city.
Bill by Peabody Heights Company of Baltimore City against William B Willson for specific performance of a contract to purchase land. From a decree dismissing the bill plaintiff appeals. Affirmed.
Argued before ROBINSON, C.J., and BRYAN, BRISCOE, McSHERRY, ROBERTS PAGE, and BOYD, JJ.
M. R Walter, for appellant.
John F Williams, for appellee.
William Holmes, being the owner of a tract of land adjoining Baltimore city, containing 36 acres, leased the same to the Peabody Heights Company for 99 years, renewable forever, upon the payment of a yearly rent of $9,000, with the right of redemption at any time within 10 years, on the payment of $150,000. After the execution of the lease, which is dated 14th October, 1870, but before its delivery, an agreement was, on the 19th October of the same year, entered into between Mr. Holmes and the Peabody Heights Company, by which, after reciting that there were matters of detail, connected with the sale and purchase of the property, which could not be conveniently set forth in the lease, the parties covenanted with each other that an agreement dated 20th September, 1870, with a memorandum attached thereto, dated the 13th of the same month, should be binding on them and their assigns, and "that the covenants, requirements, restrictions, and reservations therein should be as fully complied with and carried out as if they had been embodied in the lease." The memorandum of September 13th, attached to the agreement, purports to be, and is, a report to Holmes, the lessor, by his agent, Tinges, of the basis of an agreement for the sale of the property to the parties therein named, and who afterwards were to form a joint-stock company. By the terms proposed, the purchase money was not to exceed $175,000, of which sum $25,000 was to be paid within a stipulated time, and the balance, $150,000, was to be secured by a ground rent, payable and redeemable in the manner heretofore set forth. Holmes reserved for himself and his heirs and assigns, out of the tract of land, 400 feet on the west side of St. Paul street, and agreed to build thereon a "good dwelling house, as soon as practicable," setting it back 20 feet from the building line of said street. The purchasers were to form a joint-stock company, with a capital of $500,000, of which Holmes was to have one-fourth interest, and to be one of its directors so long as he retained his said interest. The purchasers were to open and develop the property as fast as practicable, but were not to call on the lessor for his one-fourth part of the expenses, but were to charge the same to his account, against the unpaid portion on ground rent. The memorandum then set forth the plan of the company, embracing its name, its object, capital stock, etc., and the following proposed by-laws: No. 1. No land to be sold or leased without a pledge to build speedily, design of buildings to be approved by the directors. No. 2. Buildings to be 20 feet back of building line, and front to be ornamented with shrubbery and flowers. No. 3. No nuisance, factories, lager-beer saloons, etc., to be permitted; clause in deed to this effect. No. 4, etc. "To regulate other proceedings." In accordance with the agreement, and memorandum which forms a part of it, the Peabody Heights Company was organized, and Holmes, the lessor, became the owner of one-fourth of its capital stock; was elected one of its directors, continuing as such until his death, in 1881. During his lifetime, and since his death, the company has made sundry conveyances to third parties of parts of said tract of land, in some of which there are no restrictive covenants at all; and in others the grantees covenanted to erect no building of less than a certain number of front feet, and to build 20 back of the building line of the street, and not to erect any lager-beer saloons, factories, etc. In two instances--one to Mrs. Polk, and the other to Charles P. Pitt--the conveyances are made subject to the rules and requirements of the company in reference to the character of the buildings to be erected, as provided by the by-laws of the company. Since Mr. Holmes' death the square containing 400 feet on St. Paul street, reserved by him, and on which he built a dwelling house, has been sold and conveyed to the Kelso Home for Orphans of the Methodist Episcopal Church, without any restrictions or conditions; and that corporation, by deed, 25th April, 1889, released all the land origmally leased to the Peabody Heights Company from the restrictive covenants and by-laws contained in the memorandum of the 13th September. And on April 27, 1893, John V. S. Findlay, trustee of the estate of William Holmes, the lessor, conveyed to the company the reversion in all the property leased to it by the lessor, thereby vesting the fee in the company. In this state of the title, the company sold to the appellee a lot on the west side of St. Paul street, and he is willing to accept a deed with the restrictive covenants therein contained, except such covenants as require him to "build speedily, the designs to be subject to the approval of the directors," and the other "to regulate other proceedings." These covenants or agreements, he contends, being made part of the lease finally executed and delivered, are binding on all purchasers with notice, and, as such, could be enforced by any of the grantees against the defendant or his assigns. This is a bill filed by the company to enforce the specific performance of the contract of purchase by the defendant, and the question is whether the restrictive covenants to which we have referred impose a servitude or easement in the nature of an incorporeal hereditament on the property, which may affect the defendant's title, or, in other words, whether the company can convey a title to the land sold to the defendant free and clear of the restrictions imposed as to the mode of improvement and use of the property.
When these restrictive covenants were before us in Newbold v Peabody Heights Co., 70 Md. 493, 17 A. 372, we said that although the covenants or agreements were not such, strictly speaking, as "to run with the land," yet they were of such a character as to create a right and equity in favor of the lessor, and those claiming under him, which a court of equity would enforce against the company and its grantees with notice, and for the reason that one who takes an estate with full knowledge of a covenant or agreement concerning it cannot equitably refuse to perform it. And we further said that these restrictive covenants were in all respects legal, and such as the owner of the land had a right to impose, and, this being so, they were enforceable, not only by the owner, but by those holding under him, against the company and its lessees and grantees with notice. The reversionary interest of Holmes in the...
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