196 A. 727 | N.J. Super. Ct. App. Div. | 1938
Benjamin Kurtz is the owner of a lot of land in the city of Camden, whereon John Cazello, the lessee, in conjunction with Frank Caromano, proposes to open a saloon and sell intoxicating liquors under a license heretofore granted to Caromano. The bill, filed by several owners of lots in the same tract, sought to enjoin the proposed use as contrary to a restrictive covenant which appears infra. Chancery dismissed the bill. Complainants appeal.
The lands of the complainants, as well as that of defendant Kurtz, all came from a tract owned and developed by real estate men known in the case as Cramer and Griffee, who acquired the tract in 1892, charted the same into streets and building lots (approximately one hundred and sixty) and filed the map in the office of the county register of deeds. Thenceforth, until January 1st, 1920, all conveyances, save two, out of these common grantors contained the following covenant:
"It is hereby specially covenanted and agreed by and between the parties hereto that the said party of the second part, his heirs and assigns, shall not at any time use and occupy the said premises nor allow them to be used or occupied for the manufacture, storage or sale of intoxicating liquors and this for the mutual benefit of peace and good order to the grantor the said party of the second part and the other grantees of said parties of the first part."
The exceptions were a deed to the Westminster Presbyterian Church and a deed from one to the other of the common grantors. The various lots owned by the several parties to the litigation were conveyed out of the common grantors in the following chronological order and at the times indicated: Ideal Building and Loan Association, 1895; Clarke, 1898; Kurtz, 1909; Roles, 1914; Graham, 1919; Pile, 1923. The deeds out of Cramer and Griffee for the Clarke, Building and Loan Association, Kurtz, Roles and Graham lots all contained the covenant; although the deed to Kurtz, being from one of the intermediate owners, did not. The deeds into Roles and Graham contained the covenant. The deed into Pile did not. Nevertheless, Pile took, and Graham *176 and Roles also, with actual knowledge of the covenant, which was held out to them, and relied upon by them, as an inducement to the purchase of the lots. To this time there have been no violations of the covenant and there has been no change in the neighborhood conditions.
Appellants do not claim either upon the personal covenant of any grantee or upon the existence of a neighborhood scheme. Their reliance, deducible from the printed briefs and clearly stated at the oral argument, is exclusively upon the theory that the restrictive covenant created an equitable easement (a descriptive word used in the cases although not technically correct) as enunciated in Coudert v. Sayre,
"The doctrine now in force on this subject I understand to be this: that when it appears by the true construction of the terms of a grant that it was the well-understood purpose of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, no matter in what form such purpose may be expressed, whether it be in the form of a condition, or covenant, or reservation, or exception, such right, if not against public policy, will be held to be appurtenant to the land of the grantor, and binding on that conveyed to the grantee, and the right and burthen thus created and imposed will pass with the lands to all subsequent grantees. And any grantee of the land to which such right is appurtenant, acquires, by his grant, a right to have the servitude or easement, or right of amenity, as it is sometimes called, protected in equity, notwithstanding that his right may not rest on a covenant which, as a matter of law, runs with the title to his land, and notwithstanding that it may also be true that he may not be able to maintain an action at law for the vindication of his right. The cases in which this doctrine has been recognized and enforced are quite numerous, but only a few will be cited. Brewer v. Marshall, 4 C.E. Gr. 537;Kirkpatrick v. Peshine, 9 C.E. Gr. 206; Gawtry v. Leland, 4Stew. Eq. 385; Whitney v. Union Railway Co., 11 *177 Gray 359; Parker v. Nightingale, 6 Allen 341; Schwoerer v.Boylston Market Association,
While the appellants do not, in so many words, concede that the tenor of their argument excludes complainants Ideal Building and Loan Association and Clarke from its favorable application, we think that the admission is implicit and that, whether so or not, the result is inevitable. These two owners acquired before the conveyance out of the common grantors to Kurtz's predecessors, whereas the language of the Coudert Case carries the easement to the remaining lands owned by the grantors, whether the ownership stays in the grantors or passes to subsequent grantees. Moreover, the common grantors did not bind themselves. This phase of the rule is more specifically stated in Leaver v. Gorman,
"The law is this: A court of equity will restrain the violation of a covenant entered into by a grantee, restrictive of the use of lands conveyed, not only against the grantee covenantor, but against all subsequent purchasers having notice of the covenant, whether it run with the land or not. There is, however, this distinction: The original grantor, in imposing the covenant upon the grantee, either may or may not bind himself. If he does not bind himself, then his grantee, having no right of action against him, cannot pursue any other grantee to whom he may subsequently convey the whole or a part of the remaining lands. In the case of the lands in question, Mr. Bradley chose to remain unbound. In none of the multitude of deeds offered in evidence does it appear that he covenanted to impose the restrictions in question upon the lands remaining in his hands. The consequence is that while a subsequent grantee of Mr. Bradley of one lot could enforce the covenant against a prior grantee of another *178 lot, a prior grantee could not enforce the covenant against asubsequent grantee."
To similar effect is Bowen v. Smith,
"The equitable grounds on which restrictions of this nature may be enforced at the instance of a subsequent grantee of the common grantor are well defined. One owning a tract of land may convey a portion of it, and by appropriate covenant or agreement may lawfully restrict the use of the part conveyed for the benefit of the unsold portion, providing that the nature of the restricted use is not contrary to principles of public policy. In such case a subsequent purchaser of all or a part of the remaining land for the benefit of which the stipulation was made may in equity enforce the observance of the stipulation against the prior grantee upon the principle that the rights created by such stipulation are transferable as part of the land to which they are attached (Coudert v. Sayre, 46 N.J. Eq. (1 Dick.)386), and such subsequent purchaser may in equity enforce the stipulation against a person who holds title under the prior purchaser, who has acquired title, with notice of the restriction, upon the principle which prevents a party having knowledge of the just rights of another from defeating such rights. Brewer v. Marshall, 19 N.J. Eq. (4 C.E. Gr.) 537,542. As no privity exists between the subsequent purchaser from the common grantor and the original grantee or the persons holding under him, the right of action is necessarily dependent upon the existence of the fact that the stipulation was originally made for the benefit of the remaining land of the common grantor."
The doctrine of equitable easement is, we think, soundly expounded in the foregoing excerpts from chancery opinions. We conclude that the decree should be affirmed as to the prior owners, Ideal Building and Loan Association and Clarke.
The complainants, Graham, Roles and Pile, are subsequent grantees of the common grantors, and the fact that the restriction is for their benefit as well as for that of the common grantors *179
is evident from the words of the covenant — "for the mutual benefit of peace and good order to the grantor the said party of the second part and the other grantees of said parties of the first part." The vice-chancellor rightly determined that the provisions and omissions of the covenant — particularly the omission of a reciprocal obligation upon the remaining lands — were such that there was no neighborhood scheme (Scull v.Eilenberg,
Under the circumstances of the case we think that the relief sought should be granted to the appellants Graham, Roles and Pile. Although Pile's deed did not contain the restrictive covenant, yet he was a subsequent grantee and therefore within the class of those for whose benefit the restriction was imposed; not only did he, as we have said, have actual knowledge that the tract was a restricted area but he had that knowledge direct from Cramer, one of the common grantors, and acted upon it as an inducing factor in making the purchase.
The record will be remitted to the court of chancery to be there disposed of in a manner consistent with our findings.
For affirmance — None.
For reversal — THE CHIEF-JUSTICE, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 12.