139 A. 508 | Conn. | 1927
Minnie J. Dalton owned two adjoining lots in Waterbury, upon one of which stood a one-family dwelling-house in which she lived. She conveyed the vacant lot to Catherine McCarthy by a *111 warranty deed containing this clause: "Grantee agrees that in the event she shall erect a house on said property that same will be a single family house." Minnie Dalton continued to own and occupy this house until her death. Upon her death the administrator of her estate conveyed her house and lot to the plaintiff Bauby, who had actual knowledge of the restrictive covenant in her deed to Catherine McCarthy. Subsequently Catherine McCarthy conveyed the vacant lot to the defendant Annie Krasow by a deed warranting the same to be free of all incumbrances, but at the same time taking back from Annie Krasow an agreement whereby she agreed to save Catherine McCarthy harmless from any claim that might be made because of the restrictive covenant of which she had actual notice. Thereafter the defendant Annie Krasow commenced the construction of a three-family house upon her lot. The cellar of this house was completed and a portion of the frame up when this action was started and the house was completed before the case was tried.
The appeal from the refusal of the trial court to correct the finding is without merit. The motion to strike out the several paragraphs of the conclusions of the trial court is unnecessary. The soundness of these conclusions is properly attacked in reasons of appeal one, two and three. The other paragraphs of the finding which the appellant seeks to have stricken out were not found without evidence, and the paragraphs which the court was asked to add to the finding were either facts which were not admitted or undisputed, or were immaterial.
The trial court reached the conclusion that the clause in the deed from Minnie Dalton to Catherine McCarthy did not create an easement running with the land and was not binding upon the heirs and assigns *112
of the grantee. The question whether such a covenant runs with the land is material in equity only on the question of notice. If it runs with the land, it binds the owner whether he had knowledge of it or not. If it does not run with the land, the owner is bound only if he has taken the land with notice of it. InTulk v. Moxhay, 2 Phil. Ch. 774, the leading case upon this question, the court said (p. 777): "The question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased." The decisions proceed upon the principle of preventing one having knowledge of the just rights of another from defeating such rights, and not upon the theory that the covenants enforced create easements or are of a nature to run with the land. 2 Pomeroy's Equity Jurisprudence (4th Ed.) § 689; Berry on Restrictions on Use of Real Property, p. 417; 1 Jones on Law of Real Property in Conveyancing, § 780; 2 Tiffany on Real Property (2d Ed.) § 394; 21 A. L. R. 1284; Whitney
v. Union Ry. Co., 77 Mass. (11 Gray) 359, 364;Lewis Oyster Co. v. West,
The defendant Annie Krasow, when she bought this lot, had actual knowledge that her grantor, by a covenant in her title deed, had agreed not to build other than a one-family house upon the lot. She could not equitably refuse to perform this agreement if performance were sought by Minnie Dalton, the original covenantee.
The plaintiff Bauby is the successor in title of Minnie Dalton to the adjoining house lot which she retained when she conveyed the vacant lot by the deed containing the restrictive covenant. Whether he can enforce the covenant depends upon whether it was made for the benefit of the land retained by the grantor in the *113
deed containing the covenant, and the answer to that question is to be sought in the intention of the parties to the covenant as expressed therein, read in the light of the circumstances attending the transaction and the object of the grant. 1 Jones on Law of Real Property in Conveyancing, § 798; 2 Tiffany on Real Property (2d Ed) § 399; Berry on Restrictions on Use of Real Property, pp. 417, 437; 21 A. L. R. 1282; Peck v.Conway,
The language of the restrictive covenant in this deed throws little, if any, light upon the question of whether the intention was to benefit the land retained by the grantor, except as it might be said that the character of the restriction itself would indicate that its enforcement would be of benefit to the retained land. These two lots came to Minnie Dalton as one piece by a certificate of devise from her husband's estate. The house upon the lot which she retained was her homestead, in which she continued to live up to the time of her death. The other houses upon the same side of the street in that neighborhood were one-family houses, although there were some two- and three-family houses on the other side of the street. It is difficult to see how Minnie Dalton would have any interest in restricting the use of the lot sold except as owner of the property *115
retained by her. The nature of the restriction indicates that it was intended for the benefit of the house lot, to prevent such depreciation in its value as might result from the erection of a three-family house upon the adjoining lot. It seems to us that the fair inference, and the only one that could reasonably be drawn from the insertion of this restriction in the deed under the circumstances, is that its sole purpose was to protect the grantor's homestead by restricting the character of any house that might be built upon the adjoining lot. The covenant of the vendee was that she would build no other than a one-family house upon the lot. As we have seen, this covenant is binding upon her successor in title taking with notice. There is nothing to indicate that the parties intended that that agreement should terminate upon the death of the covenantee. It was manifestly intended to benefit her property and that benefit enures to her successor in title. Peck v. Conway,
It does not necessarily follow that plaintiff is entitled to a mandatory injunction directing the removal of defendant's house. Whether such an injunction should issue depends upon all the equities between the parties. 32 Corpus Juris, 147. When one has gone on wrongfully in a wilful invasion of another's rights in real property, the latter is entitled to have his property restored to its original condition even though the wrongdoer would thereby suffer great loss. It has been said that the result of denying a mandatory injunction in such a case would be to "allow the wrongdoer to compel innocent persons to sell their rights at a valuation." Tucker v. Howard,
It clearly appears from the finding that the purchase of the lot by the defendant Annie Krasow was made in good faith, and not for the purpose of avoiding the restriction of which she had knowledge but which she claimed was a personal covenant and not an appurtenance to the land of the plaintiff, and that she started the erection of a three-family house upon the lot under a claim of right. After the cellar was completed and a portion of the frame was up, this action was brought. No temporary injunction was sought by the plaintiff and the defendant completed the house at a cost of about $16,000. The house does not affect the light, air or vision of the plaintiff's house to any appreciable extent more than would a one-family house. Under all the circumstances of the case it would be inequitable to require the removal of defendant's house and an adequate remedy will be afforded the plaintiff by an award of damages for the depreciation in the value of his property caused by the violation of the restrictive covenant.
There is error and the cause is remanded to the