19 N.J. Eq. 537 | N.J. | 1868
The opinion of the court was delivered by
The facts out of which this controversy has arisen, so fully appear in the statement which prefaces this opinion, that I do not deem it necessary to repeat them in extenso. It will answer every present purpose to say, that one George Cheeseman was originally the owner in fee of the several tracts of land now respectively owned by the appellant, Mr. Brewer, and by the respondent, Mr. Marshall; that on the 23d day of February, 1841, he conveyed to the grantor of the appellant, the lands now held by the latter, and also, by the same instrument, another tract of twenty-eight acres, and that in this deed there was a covenant in the following words, viz. “ Also, the said George Cheeseman, his heirs or assigns, are not to sell any marl, by the rood or quantity, from off his premises adjoining the above property.” The tract described in this covenant as that to which the restriction was to apply, is now owned by the respondent, Mr.
I think the Chancellor, in the opinion which he has sent
It will' be found upon examination, that, ihese decisions proceed upon the principie of preventing a party having knowledge of the just rights of another, from defeating such 2'ights, and not upon the idea that the engagements enforced create easements or are of a nature to run with the land, In some oí the instances the language of the court is very dear on this point. Thus in Wilson v. Hart, Law Rep. 1 Ch. App. 463, which was a suit to compel the observance of a covenant not to use any building erected on a building plot as a beer shop, the defendant, who was the assignee of the covenantor, was enjoined, although Sir G. J. Turner, L. J., in delivering the judgment, declared that, in his opinion, the
Uor is this doctrine without illustration in our own-courts. It was enforced in'the case of Van Doren v. Robinson 1 C. E. Green 256. This wap a suit founded on a covenant in a conveyance, whereby the grantee agreed to re-convey to the grantor whenever he, the grantee, should quit the actual possession of the premises. The grantee conveyed to a stranger, who took the title with constructive notice of the covenant. Chancellor Green maintained that this was a mere personal covenant; that it neither ran with the lands nor bound the alienee at law, but that it would be enforced against such alienee in equity, when he was chargeable with notice of the original contract. And in Holsman v. Boiling Spring Bleach. Co., 1 McCarter 347, the same accurate jurist-maintained the right of equity to exert its authority, in proper cases, to prevent injustice.without any dependency on the merely legal rights of the parties. And I think it is also manifest from the case of Rogers v. Danforth, 1 Stockt. 294, that Chancellor Williamson was of the same mind on this subject, for he remarked, with reference to a covenant touching lands, that he does not think that it follows that because a suit at law cannot be maintained, a Court of Chancery may not protect the rights of the parties under it.
Prom this review of the authorities, I am entirely satisfied that a court of equity will sometimes impose the burthen of a. covenant relating to lands on the alienee of such lands, on a principle altogether aside from the existence of an easement or the capacity of such covenant to adhere to the title. So far I think the law is not in doubt, and the only question in this case, which I have regarded as possessed of auy material difficulty, is whether the covenant now in controversy is embraced within the proper limits of this branch of equitable jurisdiction. The inquiry is, have courts of equity ever gone the length of enforcing contracts similar to the one now
But, in the second place, it seems to me that this covenant, on which this suit rests, is illegal in itself, and absolutely void. The substance of this covenant is, that neither the former owner of these premises, nor his assigns, shall sell by the quantity any marl taken from these lands. This is not a restriction on the use of the land, for the marl can be dug up and used upon the land; but the restriction is on the sale of the marl after it shall have been dug up. Marl of course is an article of merchandise, and the covenant restrains traffic
In conclusion, I may say that I have not overlooked the claim of the appellant to restrict the use of the lands of the respondent by force of the covenant contained in the bond and mortgage of the date of the 23d January, 1842. This covenant would be quite as objectionable as the one already considered, with regard to imposing incidents on real property so as to pass with the same from hand to hand. It is liable therefore to the first objection above stated by me, and which I think decisive of this controversy. FTor, in my opinion, can it be said to be beyond the scope of the second objection. It is to the effect that the marl from the lands of the covenantor shall not be sold so as to be brought into competition with the marl of the covenantee. It is obvious that under so broad a covenant as this, the covenantee could drive the covenantor from every accessible market in the country. I do not find any case which sanctions so broad a restriction. But it is not necessary to pursue this inquiry, for as this case is now presented the complainant is not in a position to ask the aid of this court with regard to this covenant embodied in the bond and mortgage. It will be observed that this agreement prohibits the selling of marl taken from the lands adjoining the seven acre tract, so as to bring such marl in competition with that to be derived from such tract. The appellant is now the owner of but a small part of this seven acre tract, and from which portion he has never taken any marl. If it be true then that the respondent has taken or intends to take marl from his property which adjoins the seven acre tract, such acts cannot be even technical breaches of the covenant now in question, for as the appellant has not worked that portion of the seven acre tract which still remains to him, it is obvious that the prohibited competition has not occurred. In this respect, the appellant has not suffered, nor is he threatened with substantial loss, and, consequently, on this head has no standing in a court of equity.
The decree was affirmed by the following vote :