Bealmear v. James , 147 Md. 274 ( 1925 )

Loader James and Elizabeth, his wife, on October 26th, 1922, entered into a written contract with Cleveland R. Bealmear for the sale of a lot of ground at the southwest corner of Roland Avenue and Merryman's Lane, in what is now known as Hampden, in that portion of Baltimore City known as the Old Annex. The contract contained a provision reading as follows: "It is understood there is no title restriction or zoning restrictions as to store-front improvements on said lot."

The vendee refused to comply with the terms of the contract on the ground that the lot in question was subject to certain building restrictions known as the "Hampden Association restrictions" established and provided for by the constitution and by-laws of the Hampden Association. The vendors contend that these restrictions have long since been abandoned and did not at the time of the contract affect the property in question. The vendors, relying upon that theory, filed in Circuit Court No. 2 of Baltimore City their bill of complaint against the vendee, setting out the facts to which we have referred and asking for a specific performance of the contract of sale. The vendee answered setting up as a defense to the suit the restrictions referred to and testimony was taken in connection with these pleadings. At its conclusion the court decreed that the contract of sale be specifically enforced and from that decree this appeal has been taken.

It appears from the evidence that in or about 1857, in a case pending in the Circuit Court for Baltimore County between John N. McJilton and others and Sarah A. Mankin and others, an instrument called the constitution of the Hampden Association was filed. Just what that suit was, or in what connection the instrument referred to was filed, or what rights the persons executing it or assenting to it had at that time to encumber the property referred to in it, does not appear. It does appear, however, from the instrument itself that the purpose of the association was the purchase of about four hundred and fifty acres of ground, then known as the property of Gen. Harry Mankin, which includes a large part of what is now the town of Hampden, a part of Baltimore City, and by that constitution that property was to be laid off in streets and avenues and lots, and all the lots were to be subject to these restrictions; that is, the buildings to be erected on the lots were to be set back at least twenty feet from the line of Central Avenue, now known as Roland Avenue, and the portions of other avenues eighty feet wide and fifteen feet from the line of narrower avenues, and no slaughter house or anything that might be regarded by the trustees as a nuisance was to be allowed on the premises, nor any distillery or manufactory of lager beer or other liquor, nor place for the sale of intoxicating liquors.

These restrictions are said to have been embodied in the deeds to the purchasers of the several lots into which the whole tract was divided, but how the covenants ran or to whom they ran or in what form they were is not disclosed. It is not contended, however, that these covenants were not valid, or that they did not run with the land, or that the several lot holders were not privileged to insist upon their observance inter sese. Manifestly we could not pass upon those questions upon the facts before us and for the purpose of this opinion, but without so deciding, we will assume that these covenants were valid and enforceable inter sese by the purchasers of the lots into which the Mankin property was divided.

The real contention of the vendors was that these restrictions had been abandoned and that the lot owners had so far and so long acquiesced in a disregard of the restrictions that they cannot now be heard to insist upon their enforcement.

The evidence in the case, including a number of photographs, shows that the restriction which required buildings on lots on Central, or Roland Avenue, as it is now known, to be at least twenty feet from the street, has been in a number of instances violated, but on the other hand it shows that in the block in which the particular lot under consideration here is located there have been no violations of the restriction, and it does not appear that persons owning lots in that block have been in any way injured or affected by the violations, and it cannot be assumed as a matter of law that they have waived or surrendered their right to insist upon a strict compliance with the covenant, because they did not attempt to restrain violations of the restriction in all parts of that very large tract of ground, when they themselves were not directly injured thereby.

The question of abandonment or waiver in such a case may be shown by parol, since it is largely a matter of the intention of the parties, but no such abandonment or waiver will be presumed from the mere fact that the owner of property for the benefit of which restrictions have been created has not taken steps to prevent violations of such restriction, where his property is not affected by such violations. 15 C.J. 1254; Devlin on RealEstate, page 1870.

It cannot be said, therefore, beyond a reasonable doubt, that this property may not be subject to the restriction, nor can it be said that other persons owning other lots affected by the restriction, who are not before the court in this case, will not be permitted to enforce it.

Whether this restriction has been waived or abandoned generally is a matter of fact depending upon acts and conduct, and we would not attempt in this proceeding to determine the rights of lot holders, which might be very seriously affected by such a decision, because such persons are neither before the court nor represented. In Miller's Equity, par. 694, it is said, in speaking of a decree for specific performance: "The decree being a judgment in personam and not in rem binds only those who are parties to the suit and those claiming under them; and in no way decides the question in issue as against the rest of the world. Therefore, doubts on the title of an estate are liable to be discussed between the owner of the estate and some third person not before the court and not bound by its decision. If there be any reasonable chance that some third person may raise a question against the owner of the estate after the completion of the contract, the court considers this to be a circumstance which renders the bargain a hard one for the purchaser, and one which in the exercise of its discretion it will not compel him to execute." The same authority says in paragraph 692: "The general rule is that the purchaser will not be compelled to take a title which is not free from reasonable doubt and which might in reasonable probability expose him to the hazards of litigation"; and in 25 R.C.L., page 274, it is said: "Specific performance of a contract for the purchase of land will not be decreed where the vendor cannot show a clear title, but merely one concerning which there is a reasonable doubt * * * It is immaterial that it is doubtful whether the defect will ever incommode the purchaser. If there is any reasonable chance that some third person may raise a question against the owner of the estate after the completion of the contract, the court considers this a circumstance which renders the bargain a hard one for the purchaser, and one which it will not, in the exercise of its discretion, compel him to execute."

Now under the circumstances of this case, manifestly it cannot be conclusively or finally said upon the testimony before us, which relates to only a few violations of these restrictions in a tract of city property containing over four hundred acres in a period of over sixty years, when the restrictions appear to have been observed in the immediate vicinity of the lot in question, that the owners of other lots on the same block cannot insist upon the application of the restrictions to that lot.

In our opinion, therefore, the complainants were not entitled to the relief sought in their bill of complaint, and it should have been dismissed, and it therefore becomes necessary to reverse the decree appealed from and dismiss the bill.

Decree reversed and bill dismissed with costs to theappellant.