14 N.Y.S. 315 | The Superior Court of the City of New York and Buffalo | 1891
The covenant was not a conveyance, within the statutory meaning of that term, respecting the acknowledgment of conveyances by married women. 1 Rev. St. p. 758, § 10. It did not purport to grant or convey any estate, and none passed, or was intended to pass, by it. It is somewhat analogous to the right conferred in McLarney v. Pettigrew, 3 E. D. Smith, 111, in which it was held that an agreement that beams might be inserted in the wall of plaintiff’s house, for the permanent support of the adjoining house, did not convey an interest in real estate, and did not require a writing. The same principle has been applied to party-walls. Bosworth, J., in Maxwell v. Bank, 3 Bosw., at page 146, said: “ We regard it as settled law that when the owners of adjoining lots agree, .though verbally, that each
Alonzo A. Alvord, the husband, did not die until 1862, and the houses were therefore erected and the agreement consummated during the life of the husband, whose agreement, even regarded as a conveyance, was valid, while he lived, by virtue of his exclusive right of control and of sale. Ewell, Lead. Cas. 478; 2 Kent, Comm. 132; Vartie v. Underwood. 18 Barb. 566. When the covenant was executed the land of the Alvords received a benefit, and on it was created a corresponding charge, which, like other charges recognized in equity, becomes effective when declared so by the courts. 2 Bish. Mar. Worn. § 212. A wife, even under the then existing law, might, by her sole act, charge her estate in equity under some circumstances in which she had not the power of conveyance. Id.; 2 Story, Eq. Jur. § 1399; and see cause collated in Voorhies’ Code 1859, p. 173. She charged it in this instance. It needed no conveyance or writing to create the easement, even if the right conferred arises to the dignity of that title. The act or consent of those in interest was sufficient. This is established by the case of Tallmadge v. Bank, 2 Duer, 614, affirmed 26 N. Y. 105, where the equity in regard to the manner of improvement and occupation of certain land grew out of a paroi contract made by the owner with the purchaser, and it was held binding upon a subsequent grantee with notice-, although his legal title was absolute and unrestricted. This ease reviews many authorities, and quotes Chancellor Cottenham as saying that, where a covenant of this character has been entered into, it would be most “unjust and unconscientious” not to enforce it. The opinion also quotes the case of Brewer v. Marshall, 19 N. J. Eq. 537, wherein the court agrees with Chancellor Gottenham in saying that “it will be found upon examination that these decisions proceed upon the principle of prevent-
We are next called upon to consider the objection urged by the defendant that 10 feet of the front of the building is not affected by the covenant. This triangular piece was purchased by Susan Alvord, November 23, 1853, to straighten the line of her lot, and the whole parcel was sold together as one lot, April 1, 1857; and it was built upon during that year, in conformity to the requirements of the covenant; and thus the entire structure is brought within its provisions by the principles declared in Tallmadge v. Bank, supra. The point as to change of character of the neighborhood is equally without merit. Where the use of land is restricted to private residences, and changes in the neighborhood unfit the property for that use, this circumstance may operate to defeat the covenant in that regard. Trustees v. Thacker, 87 N. Y. 311. The necessity presented for relaxing the rule in that case does not exist here. The covenant is of a different character, and falls within the principles decided in Lottimer v. Livermore, 6 Daly, 505, affirmed 72 N. Y. 174, in which it was held that a covenant for the enjoyment of light, air, and vision was not discharged by a mere change of neighborhood, as there was no reason why an adjoining property owner by that circumstance should have less of either than his covenant called for. The plaintiff established her right to equitable relief by injunction, and it was error to vacate the temporary writ. The order appealed from must therefore be reversed, and the application to continue the injunction granted, with costs. All concur.