100 N.Y.S. 970 | N.Y. App. Div. | 1906
The plaintiff is the owner of a piece of property at the northeast corner of West End avenue and Ninety-ninth street in the city of New York, extending 100 feet 11 inches toward the middle of the block and 102 feet deep. On July 14, 1905, he entered into a written contract with the defendant for the sale of said property, the defendant to pay $1,000 on the signing of the contract and the date for closing was therein fixed for August 1, 1905. The said contract contained the following clause : “ The deed shall be a full covenant warranty deed in proper form and shall be duly executed and acknowledged by the seller at the seller’s expense to convey to the purchaser or the purchaser’s assigns the absolute fee of the above premises free of all incumbrances.” The defendant purchaser declined to take upon the ground that the said real property was subject to. the covenants and restrictions contained in an agreement bearing date the 21st day of November, 1890, recorded in the register’s office in the county of New York on the 2d day of June, 1891; that the covenants and restrictions contained in said agreement created a cloud upon the title of said real property, preventing and prohibiting the erection thereon of flat and apartment houses, the class of improvement intended to be erected thereon by the defendant, and that plaintiff could not convey said real property free and clear of all incumbrances as provided in the contract of sale. The agreement alluded to, dated November 21, 1890, was under seal, was signed by the plaintiff by his attorney, and was recorded. The material parts thereof are as follows: “ This indenture made this twenty-first day of November, one thousand eight
Said agreement so executed and recorded has been in existence
If such be the fact, if it be a valid and binding agreement, undoubtedly it is a restrictive covenant and hence an incumbrance, and the defendant was warranted in declining to complete a contract which provided that the plaintiff should convey the land to him with fiill warranty deed free from all incumbrances. In fact, the precise structure he intended to erect when he engaged to purchase the property is specifically prohibited by the provisions of the covenant.
The plaintiff contends that said agreement is not a cloud upon his title because it is void and ineffectual, and in this proceeding he asks for a judgment that said agreement be declared null and void and of no effect.
It appears that at the time of the execution of the agreement Samuel W Bowne, one of the signers thereof, was not the owner of record of the piece of land to which his name was attached on the diagram annexed to the agreement; that although he had bought and paid for the property, he had conveyed it to his wife, who, at the time of execution of the agreement in question, was the owner of record, and that she had not signed the agreement nor authorized her husband to sign it for her and knew nothing about it. It is claimed that these facts are established by the judgment of this court in the case of Kurtz v. Potter (44 App. Div. 262 ; affd., 167 N. Y. 586). In. that case the plaintiff brought an action to enjoin the defendants from continuing the use of-the premises No. 804 West End avenue for any purposes other than those of private families or buildings for churches, according to the terms and condi-. tions of the agreement hereinbefore set forth. The property in
It should be noted, perhaps, that there was another ground upon which the decision óf the court was put, and that was that there was no evidence to show that the covenants contained in the agreement had been violated; that the sole effect thereof was that the first building erected on said land within twenty years should be a private dwelling, and that that covenant had not been violated ; that the use of the building after its erection was not covered by the agreement.
The plaintiff’s contention is that inasmuch as the agreement provided that it should not be binding upon said parties or any of them' until all said parties had executed the same, and inasmuch as it has been judicially determined that Samuel W. Bowne, although mentioned as one of the parties who did execute it, was not the owner of the property, therefore, the agreement, although of record for difteen years, and observed by all the parties thereto and by himself, yet never took effect.
It may be assumed that all the parties- to the agreement supposed at the time of the execution thereof that Samuel W. Bowne was the owner of the property, and it is, of course, evident that the intention of the agreement was to secure mutual protection and the preservation of this neighborhood for twenty years for strictly residential purposes. That purpose has been accomplished up to the present time, and so far as each of the signers of the agreement is concerned, it is an executed contract.
The decision in Kurtz v. Potter (supra) was not based upon the
This agreement, which is under seal, is made between certain enumerated parties, and in its recital states that they are the owners of certain specified property. In further sections of the agreement the parties' thereto are referred to as parties, and it concludes with the clause : “ This contract shall not be binding upon said parties or any of them until all said parties have executed the same.” All the said parties did execute the same and all said parties have observed the same, and I think when we come to interpret an executed contract under seal, that it is a very serious question whether any party thereto can question the recital of facts as inducement therefor. I understand the purpose of a recital is to estop the parties to a deed from questioning its truth, and that the rule of law applicable is that where the instrument under seal contains a recital of a fact upon the truth of which the validity of a contract is dependent, in the absence of the reformation of the contract on the ground of mistake, such recital is conclusive upon the parties.
Further, it seems to me that the doctrine of equitable estoppel may be invoked as between the parties to this agreement. The plaintiff who signed it lias reaped the benefit of the signatures of the other parties thereto who have kept their agreement and retained this neighborhood for residential purposes as contemplated and provided for.
, Again, the contract expressly states that each of the parties thereto covenants and agrees each for himself with each of the other of said parties, severally and respectively, and it is not at all clear that one of the parties who signed can be relieved of the obligations thereunder to others.who signed and who have performed, by reason of the fact that years afterwards it was discovered that there was a mistake as to the actual ownership of one of the parties thereto.
Here is a sealed instrument of record which, if valid, creates an incumbrance upon the property, which recites that • its signers are all owners of the property covered by it, which is as between the parties thereto.and each of them a several agreement respectively, which has been observed for fifteen years and which the plaintiff ■himself signed and from the restrictions- in which lie presumably has received advantages. There is nothing upon the! record which suggests the defect in the original agreement here claimed. In my opinion it cannot be said, in the absence of the other parties to.- said agreement, that this title is so free from reasonable doubt that specific performance, of this contract should be required by the court..
Under the stipulation, therefore, judgment should be rendered for the .defendant, relieving him from any obligation to complete •the purchase under the contract of sale, and that the plaintiff be directed to repay him the moneys paid on said contract, with costs.
O’Brien, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Judgment directed for defendant relieving him from obligation to complete -purchase under contract of sale, and that plaintiff be directed to repay him the moneys paid on- said contract, with costs.
Sic.