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No. 29—April Term, 1924. Filed June 20, 1924. THE SARATOGA BUILDING AND LOAN CORPORATION, A CORPORATION, Vs. THE ROLAND PARK APARTMENT STABLES COMPANY, A CORPORATION. Appeal from the Circuit Court No. 2 of Baltimore City. Submitted on briefs by C. Alex. Fair banks, Jr., for appellant, Semmes, Bowen Semmes for appel lee. The cause was submitted on briefs to PATTISON, URNER, ADKINS, OFF UPT, DIGGHS and BOND, Jr. Restrictive Covenants in Deeds—For ‘“Resi dence Purpose” Includes a Residential Apartment House, A rule of constriction applicable to restrictive covenants in deeds, is that they should be given no greater effect than their terms clearly intend, and any doubt as to their meaning should be resolved in favor of the grantee. The words “residence purposes” are sus ceptible of being construed as including the erection of a residential apartment house. ARNER, J.— The Roland Park Company of Balti more City, on December 1, 1920, con veyed to the Roland Park Apartment Stables Company of Baltimore County, a lot of ground containing about one and one-half acres and forming a part of the land which the grantor corpora tion had acquired for the purposes of suburban improvement. ‘The deed con veying the lot referred to contains cer tain covenants restricting its use, among which are the following: “1. That no shop, store, factory, saloon, business house of any kind, other than stables, no hospital, asylum or institution of like or kindred nature, and no charitable institution shall be erected or maintained on said premises, but the said premises shall be occupied and used by the said Roland Park Apartment Stables Company its succes sors and assigns, including all tenants, either for stables or for residence pur poses and not otherwise. “2. That no residence or dwelling house shall be erected or kept on said land costing less than three thousand (3,000) dollars, and any building erect ed on said land within ten (10) years from date of this deed, shall be built according to plans which shall have been approved by the architect of the said Roland Park Company of Balti more City.” The lot thus conveyed has not been used for residence purposes, but stables and public garages have been main tained on it for many years. _ Recently the Roland Park Apartment Stables Company contracted to sell and convey a portion of the lot to the Saratoga Building and Land Corporation under an agreement which provided that the title should be “free of any building re striction that would prohibit the erec tion of an apartment house to be de signed and occupied for residential purposes.” Because of doubt as to the ability of the vendor to convey a title free of such a restriction, the vendor has refused compliance with the con tract of purchase. In this suit for spe cific performance the only question is whether an objection to the title on that ground is sustainable. The appeal is from a decree requiring the agree ment of purchase to be specifically per formed. On the plat herewith reproduced the lot here in question is designated as Lot 1, Block 9, Plat 2, fronting 370 feet on Woodside Road and 123 feet on Up land Road. It is in a section of the Rpland Park area which has been de voted, in part to other than residence purposes. At the southwest corner of the same block is the stable of the Bal timore Country Club, erected under the permissive terms of the conveyance made to it in 1906. On the opposite side of Woodside Road is a car barn of the United Railways and Electric Company. The entire block on which it stands, and which is almost wholly used for railroad purposes, was con veyed to the Railways and Electric Company by the Roland Park Company prior to the execution in 1900 of the deed to the Roland Park Apartment Stables Company for the lot now in controversy. Prior to that time also the Roland Park Company itself had erected on Block 21, shown on the plat, a large business building, three stories in height, with five stores on the first floor and with residential apartments on the second and third floors, and sub sequently it built a three-story brick apartment house on the same block, containing six separate five-room apart ments. The portion of the Roland Park Apartment Stables Company's lot which is not included in the contract of sale now sought to be enforced is occupied by large concrete buildings which have been used for a long period of time as a public garage and an automobile re pair shop. The cost of the apartment house proposed to be built by the pur chaser on the lot with which we are here concerned will not be less than $3000 for each apartment, and the building will be used for residential purposes exclusively. In the deeds for practically all of the properties con veyed by the Roland Park Company, other than those to which we have spe cially referred, there are restrictive covenants which include the following: “19. That no shop, store, factory, saloon, or tsiness' House of any’ Kind, no. hospital, asylum. or, institution of Time.or, kindred nature; and, no chari table institution, shall be erected or maintained on the premises conveyed, but the same premises shall be occupied and used for residential purposes only, and not otherwise. (2) That there shall not at any time be more than one residence or dwelling house on the land hereby conveyed.” There is an agreement in the record as to the facts we have stated. In our judgment the Court below cor rectly decided that the proposed erec tion of an apartment house on the lot mentioned in the bill of complaint is not prohibited by the restrictive cove nats as to its use and is not contrary to the general plan of improvement of the area in which it is included. There is a material difference between the re strictions imposed upon lots in the ex clusively residential areas of Roland Park and those specified in the deed for the ground to which this suit relates. The deeds for lots of the former class uniformly covenanted that they should be used for residence purposes only and that at no time should there be more than one residence or dwelling on the lot conveyed, while in the deed to the Roland Park Apartment Stables Com pany there was no limitation upon the number of buildings to be erected on the lot and its use solely for stable pur poses was expressly permitted. Since 1900 no purchase of a Roland Park lot as the site of a private dwelling could have been made in the belief that all portions of the land included in the de velopment were to ‘be improved accord ing to a uniform plan. The prior con veyance and the actual use of lots, in the section shown by the accompanying plat, for railway, business, apartment house and stable purposes prevented such an expectation. ‘There is no suffi cient ground for a conclusion that the erection of an apartment house, of suit able cost, on the land affected by this suit, should be forbidden as a violation of the plan of residential development to which other lots in Royal Park are uniformly subject. The question as to whether an apartment house may right fully be erected on the land must, therefore, be determined with sole ref erence to the terms of the restrictive covenants in the deed by which it was conveyed to the present owner. Beetem vs. Garrison, 129 Md. 664; Bealmear vs. Tippett, 144 Md. —. A rule of con struction applicable to such covenants is that they should be given no greater effect than their terms clearly intend, and any doubt as to their meaning should be resolved in favor of the gran tee. Meredith vs. Danzier, 142 Md. 582; Wood vs. Stehrer, 119 Md. 143; Peabody Heights Company vs. Willson, 82 Md. 186.” It was designed that the land in the immediate vicinity of the lot to which the covenants apply should be largely available for commercial uses, and the limitation of the particular lot to use for residence purposes, as an alterna tive to the erection of stables, must be constructed with due regard to the nature of the authorized use of the adjacent properties. ‘The location of the plaintiff’s lot, in close proximity to the non-residential structures we have mentioned, and its actual use in the past, and its continued availability in the future, for the maintenance of stables, consistently with the terms of the deed by which it was granted, are facts justifying a liberal interpretation of the covenant in regard to the nature of the residence use which it intended to permit. The words “residence pur poses” are susceptible of being con strued as including the erection of a residential apartment house, and in view of the conditions shown by the record, we think such a construction is reasonable and should be adopted. As our conclusion is based upon the special facts of this case, we shall not under take a discussion of the cases, cited in the briefs, in which the applicability of restrictive covenants under materially different conditions has been consid ered. . Decree affirmed with costs.
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The Daily Record
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Wed, Jul 09, 1924
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