Raney v. Tompkins, 70

• Decision Date: 17 January 1951
• Docket Number: No. 70,70
• Citation: 78 A.2d 183,197 Md. 98
• Parties: RANEY et ux. v. TOMPKINS et ux.
• Court: Maryland Court of Appeals

Page 98

197 Md. 98

78 A.2d 183

RANEY et ux. v. TOMPKINS et ux.

No. 70.

Court of Appeals of Maryland.

Jan. 17, 1951.

James H. Pugh, Rockville, for appellants.

L. Vernon Miller, Baltimore (Albert M. Bouic and Wm. V. Bouic, Rockville, on the brief), for appellees.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

HENDERSON, Judge.

The question raised in this appeal is whether a restrictive covenant in a deed, against the use of land retained by the grantors for purposes of a gasoline filling station, is enforceable by the grantees against assignees of the grantors. Summarizing the material facts, it appears that on March 20, 1942 George C. Shoemaker and wife, the owners of a triangular parcel of land in Montgomery County, known as Triangule Park, conveyed one corner of the tract, designated as parcel A, to the appellees for use as a filling station. There were some 67 lots laid out upon the portion of the tract retained, the two immediately adjacent being designated as lot number 1 in block lettered 'F', and lot number 5 in block lettered 'E'.

This deed, between Shoemaker and wife 'parties of the first part', and Tompkins and wife 'as tenants by the entirety, parties of the second part', contained the following covenant: 'And the said parties hereto of the first part for themselves, their heirs and assign covenant and agree with the said parties hereto of the second part, their heirs and assigns, that for a period of twenty-five years from the date hereof, they will not sell, lease, demise, encumber or convey to anyone other than the said parties hereto of the second part lot numbered One (1) in Block lettered 'F' and Lot numbered Five (5) in Block lettered 'E' in the subdivision hereinbefore mentioned, for use as a gasoline station or as a location to sell automobile tires and automobile accessories and that they will not sell, lease, demise, encumber or convey to anyone, other than the parties hereto of the second part, any of the land owned by the said parties hereto of the first part lying between the road known as the Kensington-Wheaton Road, the Brookeville-Washington Pike (Georgia Avenue Extended) and the Viers Mill Road for use as a gasoline station.'

On July 19, 1945 Shoemaker and wife conveyed the retained portion of Triangle Park to Fleming and Mangan as joint tenants. This deed contained the following provision: 'Subject to the restrictions on the entire tract as set out in deed of record * * * [dated March 20, 1942] viz., that for twenty-five years from March 20, 1942, Lot 1, Block 'F' and Lot 5 Block 'E', cannot be used as a location for a gasoline station or for the sale of automobile tires, and accessories and for the same period, none of the remainder of the entire tract can be used as the location of a gasoline station.'

On February 5, 1948, Fleming and Mangan conveyed three lots at one of the other corners of the triangle to the appellants. This deed contained the following provision: 'Subject, however, to a covenant of record against the use as a gasoline station on any part of said lots created in a certain deed * * * [dated March 20, 1942].'

In 1949 the appellants obtained a permit and informed the appellees of their intention to erect and operate a filling station on the corner lot acquired by them. Thereupon the appellees brought a proceeding to enjoin their proposed action. After hearing, the Chancellor issued an injunction, as prayed, for the period of 25 years from March 20, 1942. The appeal is from that decree.

The first point raised by the appellants is that the limitation in time to twenty-five years applies only to the adjacent lots, not to the lot where they propose to erect a filling station; being unlimited as to time, they contend it is unreasonable and unenforceable, citing Whitmarch v. Richmond, 179 Md. 523, 529, 20 A.2d 161, and Meade v. Dennistone, 173 Md. 295, 305, 196 A. 330, 114 A.L.R. 1227. Assuming, without deciding, that a covenant of unlimited duration might be or become unenforceable under some circumstances, we think the time limitation applies to the lot in question, so that the premise upon which this argument rests is unsupportable. Whatever ambiguity there may be in the language of the original covenant, there would seem to be none in the restatement of its effect in the second deed in the chain of title under which the appellants claim. In any event, it requires no grammatical distortion to read the twenty-five year phrase as limiting both of the clauses that follow. We think the construction adopted by the chancellor was correct.

The chief contention of the appellants is that the covenant is personal to the parties to the original agreement and does not run with the land; hence the grantees cannot enforce it against assignees of the grantors.

It appears to be well settled that 'a grantor may impose a restriction, in the nature of a servitude or easement, upon the land that he sells or leases, for the benefit of the land he still retains; and if that servitude is imposed upon the heirs and assigns of the grantee, and in favor of the heirs and assigns of the grantor, that it may be enforced by the assignee of the grantor against the assignee, with notice, of the grantee.' Halle v. Newbold, 69 Md. 265, 270, 271, 14 A. 662, 663. The same principle applies where the condition is imposed upon the land retained in favor of the land sold. Halle v. Newbold, supra. In that case Mr. Poe argued that there was neither privity of estate nor privity of contract, but it was held to be unnecessary to decide whether the covenant ran with the land or not. In Newbold v. Peabody Heights Co., 70 Md. 493, 500, 17 A. 372, 374, 3 L.R.A. 579, Chief Judge Alvey said that it was a general principle of equity 'that a restrictive covenant entered into between a vendor and vendee, or lessor and lessee, in respect to the manner of using the property, would be enforced by a court of equity as against the vendee or lessee, and his assigns, without respect to the question as to whether the covenant did or did not, in a legal sense, run with the land. The relief may be furnished either by way of injunction or upon application for specific performance, according to the circumstances of the case calling for the exercise of equitable jurisdiction', citing the leading case of Tulk v. Moxhay, 2 Phillips 774. That case was also cited with approval in the more recent cases of Kleis v. Katcef, 160 Md. 627, 636, 154 A. 558; Meade v. Dennistone, 173 Md. 295, 303, 196 A. 330, 114 A.L.R. 1227; and Levy v. Dundalk Co., 177 Md. 636, 645, 11 A.2d 476.

The appellants...