Sullens v. Finney

• Decision Date: 25 June 1914
• Docket Number: 39.
• Citation: 91 A. 700,123 Md. 653
• Parties: SULLENS v. FINNEY.
• Court: Maryland Court of Appeals

91 A. 700

123 Md. 653

SULLENS v. FINNEY.

No. 39.

Court of Appeals of Maryland

June 25, 1914

Appeal from Circuit Court No. 2 of Baltimore City; James M. Ambler Judge.

"To be officially reported."

Suit by William B. Finney against Thomas Sullens. Decree for complainant, and defendant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and CONSTABLE, JJ.

C Alex. Fairbank, Jr., of Baltimore, for appellant.

Morrill N. Packard and Charles F. Stein, both of Baltimore, for appellee.

URNER J.

This is a suit by the vendor for the specific performance of an agreement for the purchase of real estate. The defense is that the title proposed to be conveyed is incumbered by certain building restrictions, and is therefore not of the character for which the contract of sale stipulates. It was held by the court below that the title was not open to this objection, and, from the resulting decree, the vendee has appealed.

The property embraced in the purchase consists of certain lots of ground forming part of a tract of land, situated in the suburbs of Baltimore, which has been developed for residence purposes under the name of "Edgecombe Park." It is shown by the record that the vendor's title was obtained in 1913 under proceedings for the foreclosure of a mortgage taken by him in 1907 upon a body of land containing 125 acres, a portion of which has in the interval been platted and subdivided for the development mentioned. The mortgage was executed by the Wylie Heights Company, which had just acquired the property, and it was given to secure a loan of $25,000 made to the company by the present appellee for application on the purchase money. There were preexisting loans to the amount of $100,000, the payment of which the company assumed. The plat showing the subdivision of a part of the tract into building lots, streets, avenues, and alleys, and indicating the building line for the houses to be erected, was placed on record in 1908. There were 338 lots included in the development. Seventy-nine of them had been sold prior to the foreclosure of the mortgage. In the deeds for 69 of the lots so disposed of were uniform covenants and agreements to the effect that the premises should be used solely for residence purposes; that only one dwelling should be built on each lot; that residences erected thereon should cost not less than $5,000 and should be located on the building lines established by the grantor company, and according to plans, including exterior color scheme, by it approved; that no stable or other outbuildings should be constructed and no wall or fence, except hedges, should be maintained on the lots conveyed, without the company's consent in writing; that after proper sewerage disposal had been provided by the company no cesspools should be maintained, and that no swine should be kept and no nuisances of any kind should be permitted on the premises; that the grantee, and his heirs and assigns, should pay 50 cents per month for each lot for the maintenance of the sewerage system to be connected with the property, until such time as it shall be served by the sewerage system of Baltimore. It was provided in each of the deeds by which the 69 lots in question were conveyed that the covenants and agreements we have indicated should run with and bind the lots respectively granted until January 1, 1930, when they should terminate. There was no covenant by the grantor company to hold or convey the remaining lots in the development subject to the same restrictions. In the conveyance of the other 10 lots, included in the 79 which were sold before the appellee obtained his title by foreclosure of the mortgage to which we have referred, there were two instances in which the only conditions imposed were against the sale of spirituous or malt liquors, three in which the deeds contained covenants similar to those applied to the 69 lots except as to the cost of the buildings, and there was a deed for 5 lots which was without any restrictions. Ten houses have thus far been erected in the development. The remaining 249 platted lots and the whole of the undeveloped portion of the original 125-acre tract have passed to the appellee under foreclosure of a mortgage which antedated the deeds for the 79 lots sold other parties and which contained no limitations whatever upon the use of the property. In the meantime the title of the Wylie Heights Company had been transferred to the Edgecombe Park Company by an absolute and unrestricted conveyance. Exceptions to the sale under which the appellee acquired the property were considered, and the action of the lower court overruling them was affirmed in Edgecombe Park Co. v. Finney, 121 Md. 320, 88 A. 143.

The appellant's objection to the title offered him by the appellee, as to the lots covered by the agreement of purchase involved in this suit, arises from the anticipation that the owners of lots which have been sold subject to restrictions may insist upon the observance of similar conditions in the use of the remaining lots embraced in the same development. This...