131 Wis. 659 | Wis. | 1907
Lead Opinion
The following opinion was filed March 19, 1907:
The important question presented for consideration under the assignments of error is the effect which should be given to the Johnston-Weiss agreement set out in the statement of facts as regards the property described therein. The deed to Weiss and the Johnston-Weiss contract were executed contemporaneously ás parts of one transaction, and hence upon familiar principles must be read together as one instrument. Blakeslee v. Rossman, 43 Wis. 116; Gillmann v. Henry, 53 Wis. 465, 10 N. W. 692; Stapleton v. Brannan, 102 Wis. 26, 78 N. W. 181; Security T. & L. Ins. Co. v. Ellsworth, 129 Wis. 349, 109 N. W. 125. Both instruments were executed in pursuance of a general scheme, as set forth in the agreement, for the purpose of preserving the character of the Forest den property as first-class residence property “by the present owners and future purchasers of the same.” The agreement expressly prohibiting the use of the property for other purposes named therein clearly refers to all property described, as well that retained by Johnston as that conveyed to Weiss. The deed and agreement were recorded in the office of the register of deeds of the proper county. It seems manifest from the express terms of the agreement, to the effect that it should be binding on all purchasers of any portion of the property and upon the heirs, executors, administrators, and assigns of each party, and that the covenant should run with the land, that the parties intended to impress the property with an equitable servitude in the nature of a restriction. This restriction obviously was re-
It is insisted, however, by appellants that the restriction cannot be enforced because not inserted in the deeds to either defendants or plaintiffs; that there was no agreement that the restriction should be inserted in the deed from Johnston of the Johnston tract; that there is-no evidence that subsequent purchasers of the Johnston tract should have the benefit of the covenant against each other; and that there is no evidence that the covenant was part of the subject matter of the purchase by any defendant. The agreement itself meets all these objections. It was designed by its terms to be a general plan or scheme for the enhancement of the value of the property by the protection of all purchasers of any portion of the property from the use of any other portion otherwise than for
“If it appeared that the parties to that conveyance intended' to create or reserve a right in the nature of a servitude or easement in the estate granted, which should he attached to and he deemed an appurtenance of the whole of the remaining-parcel belonging to the grantor, of. which the plaintiff’s land forms a part, then it is clear, on the principles declared in the recent decision of Whitney v. Union R. Co. 11 Gray, 359, that the plaintiff would he entitled to insist on its enjoyment, and to enforce his rights hy a remedy in equity.”
The controlling question in all cases seems to he whether the grantor intended to create an equitable servitude which should he appurtenant to the estate or intended for the mutual benefit of the respective grantees of portions of the estate for whose benefit the covenant was made. Beals v. Case, 138 Mass. 138; Tobey v. Moore, 130 Mass. 448; Hano v. Bigelow, 155 Mass. 341, 29 N. E. 628; Badger v. Boardman, 16 Gray, 559; Summers v. Beeler, 90 Md. 474; 45 Atl. 19; Hopkins v. Smith, 162 Mass. 444, 38 N. E. 1122; Clark v. McGee, 159 Ill. 518, 42 N. E. 965. Whenever it fairly appears from the words of the grant that it was the intention of the parties to-preserve a right in the nature of an equitable servitude in the property granted for the benefit of -other land owned by the grantor and embraced within the same tract as the parcel granted, such servitude becomes appurtenant to the land of the grantor, and the burden thus created will pass to and be binding upon subsequent grantees of different portions of such-tract. Whitney v. Union R. Co. 11 Gray, 359; Parker v. Nightingale, 6 Allen, 341; Linzee v. Mixer, 101 Mass. 512; Peck v. Conway, 119 Mass. 546; Clark v. Martin, 49 Pa. St. 289; Watrous v. Allen, 57 Mich. 362; St. Andrew’s L. Ch. Appeal, 67 Pa. St. 512; Mann v. Stephens, 15 Sim. 377. The question is one resting upon the intention of the grantor respecting the restriction or servitude, and whether the restriction in the conveyance should apply ..to the portion con
Under the second and third assignments of error the question of notice is discussed. It is not claimed by appellants that record of the agreement would not constitute constructive notice if it were entitled to record, but it is insisted that it was not entitled to record within the recording acts. It is argued that the agreement does not create an “estate or interest” in land. But the statute goes further than merely providing that only an instrument which creates an' “estate or interest” in land shall be entitled to record. It provides that “every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected in law or equity,” is a “conveyance” within the meaniiag of the recording act. Even if it be conceded that the restriction in the agreement
It is further contended that the erection of the proposed clubhouse, and boat landing to be used in connection therewith, does not constitute a violation of the restriction imposed upon the Forest Cien property under the Johnston-Weiss agreement. The restriction is against the sale or use of any portion of the Forest Cien property “for hotel, club, or camping purposes, or for any reformatory, charitable, or penal institution.” It is quite clear from the language of the restriction as well as from the provisions in other parts of the agreement that it was intended by the parties to the agreement that the use of the property by all clubs should be restricted. Obviously the word “club” in this agreement was used in its most comprehensive sense, and intended to embrace just such a clubhouse as the plaintiffs propose to construct. The term “club” is defined by Webster as “An association of persons for the promotion of some common object, as literature, science, politics, good fellowship, etc.” The clubhouse here-intended to be constructed, as appears by the' established facts, to be used in connection with a pier, or landing place
Tbe case presents many interesting questions, all of which have received careful consideration by tbe court, and for tbe reasons given in tbe foregoing opinion it is considered by tbe court that tbe judgment below should be .affirmed.
By the Gourt. — Tbe judgment of tbe court below is affirmed.
Dissenting Opinion
The following opinion was filed April 30, 1907:
(dissenting). I think tbe judgment in this case should be reversed, and will briefly state my reasons for my conclusion: John Johnston, Jr., originally owned tbe entire properly, and in October, 1892, sold 13.40 acres thereof to Weiss, and at tbe same time Johnston and Weiss made a written agreement that tbe character of tbe whole property as first-class residence property should be preserved by them and by future purchasers and that no |>art thereof should be at any time occupied, used, or sold by them or by their heirs, personal representatives, or assigns for club purposes. This agreement was duly recorded and was. entitled to record, and could doubtless be enforced by either party or bis privies by
The law does not favor perpetual restrictions upon the alienation or lawful use of lands, and in my judgment no case was made here calling upon a court of equity to create restrictions.
A motion for a rehearing was' denied May 21, 1907.