Codman v. Bradley
87 N.E. 591
Mass.
1909
Check Treatment
Knowlton, C.. J.

The plaintiffs, as trustees under the will *366of Maria P. Codman and owners of the premises numbered 176 Tremont Street, Boston, brought this bill in equity against the owners and the lessee of the premises numbered 171 Tremоnt Street, to enforce a restriction upon the land of the defendants and others, which required all buildings to be set back a certain distance from the easterly line of the street. This restriction was created by an indenture made on May 29, 1857, between the owners of lots numbered 176 and 177 as parties of the first рart, and the several owners of lots 171 to 175 inclusive, as parties of the second part. The parties of the first part were the five children of Henry Cоdman, and the parties of the second part included the predecessors in title of the present defendants who then owned lot number 171. The partiеs of the first part were the owners of a supposed right of entry for a breach of condition into these five lots, or either of them, if, at any time, the owner should fail to comply with a condition inserted in the deed of his lot from John Amory, dated October 12, 1811, conveying it subject to the condition that, “ All the said housеs to be erected on said house lots shall be erected on a right line, . . . two feet and nine inches at least from the westerly boundary of said lots on Cоmmon street,” which is now Tremont Street. The parties of the first part in the indenture of 1857 were the owners of all rights which the grantor had under these conveyanсes of the five lots. By the indenture, they released all these rights to the respective persons who were then the owners of the five lots, and the parties of the second part, namely, these several owners, covenanted with the parties of the first part “ and their heirs and assigns, that none of the fivе houses now standing on the lots aforesaid shall be extended in any part beyond the present front line of said houses, and that no other building or buildings which may be hereafter erected instead of them, or any of them, shall in any part extend or project beyond the said front line, unless all the then owners of said fivе lots shall consent in writing to such extension or projection, and unless all the then owners of the estates now numbered 176 and 177 on said Tremont street shall also consent in writing thereunto.” This indenture was made for a good consideration, as between the parties of the first part and the parties of the seсond part, as well as between the several owners of the five lots. Under *367the deeds of 1811 there was a right of entry in the grantor for a breach of the сondition in case the house to be erected on one of these lots was erected otherwise than in compliance with the condition. When the indenture of 1857 was entered into, it was evidently considered by the parties that the condition remained in force, and that a release of it might matеrially affect the value of the property. If the construction of the original deeds was doubtful as applied to conditions then existing, a releаse of all the rights under them, whatever they might be, would constitute a valuable consideration. Kerr v. Lucas, 1 Allen, 279. Dunbar v. Dunbar, 180 Mass. 170, 172. The right reserved under each of the original ‍​‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌‌‌‌‌‌‌​​​‌‌​‌‌​‌‌​‌‌‌​​​‌​‌‍deeds was inheritаble and devisable. Hayden v. Stoughton, 5 Pick. 528. Austin v. Cambridgeport Parish, 21 Pick. 215. It is not contended, and it could not successfully be contended, that the right of Catherine Elizabeth Codman, or of Henry Codman the younger, рassed to their trustees under their respective conveyances. This right was not within the description in either deed of trust. See Rice v. Boston & Worcester Railroad, 12 Allen, 141.

The contention of the dеfendants that their estate was not bound because the owners of the five estates covenanted “ severally and not jointly nor one for any othеr, for themselves and their respective successors, heirs and assigns,” is not well founded. This does not mean that the four trustees who jointly owned the defendants’ еstate covenanted severally and as individual owners, and not jointly, as to this ownership; but that the several owners of the five lots covenanted sevеrally, each as the owner of his own lot, and not jointly with the owners of the other lots, as to their respective holdings. The four trustees holding the defendants’ еstate covenanted as a single owner of that property.

Nor is it material that the parties of the first part then owned different interests in lots 176 and 177. John Amory Codman owned the whole of lot 177 and no part of lot 176, while the other four had formerly owned ‍​‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌‌‌‌‌‌‌​​​‌‌​‌‌​‌‌​‌‌‌​​​‌​‌‍176 as tenants in common, but Henry Codman had conveyed his one-fourth interest to trustees, and Catherine E. Codman had also conveyed her like interest to trustees. But each of them owned a beneficial interest as cestui que trust. The interest of Maria P. Codman was bound and her *368interests under the writing were protected by the act of her guardian, she then being a minor, and by her subsequent deed after she became of full age, jоining with her trustees in confirming the previous execution of the indenture.

It is plain from the language of the indenture that the parties intended a restriction upоn each of the five lots in favor of the owners of lots 176 and 177, and their heirs and assigns, which should be for the benefit of the lots, whoever might be the owners of them. It is equally plain that equity will enforce such a restriction. It is not important to determine whether the instrument created a legal estate in the five lots, or рrecisely what legal estate it created, if any. It created a right enforceable in equity against all persons taking with notice of it, actual оr constructive, and this equitable right is in the nature of an easement, even if it rests on no broader principle than that equity will enforce a proper contract concerning land, against all persons taking with notice of it. Whitney v. Union Railway, 11 Gray, 359, 363, 364. Parker v. Nightingale, 6 Allen, 341, 345. In the present case it plainly appears that the intention of the рarties was that their respective promises should be for the benefit of the ‍​‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌‌‌‌‌‌‌​​​‌‌​‌‌​‌‌​‌‌‌​​​‌​‌‍promisees as owners of the neighboring land, and of subsequent owners of thеse lots. Such a promise may always be enforced in equity by an owner. Peck v. Conway, 119 Mass. 546. Welch v. Austin, 187 Mass. 256. Bacon v. Sandberg, 179 Mass. 396. Ivarson v. Mulvey, 179 Mass. 141. Bailey v. Agawam National Bank, 190 Mass. 20, 23. It is not necessary that the owner should be himself the promisee. Parker v. Nightingale, 6 Allen, 341. Hopkins v. Smith, 162 Mass. 444. Evans v. Foss, 194 Mass. 513. Bailey v. Agawam National Bank, 190 Mass. 20. Collins v. Castle, 36 Ch. D. 243. Rogers v. Hosegood, [1900] 2 Ch, 388. Gibert v. Peteler, 38 N. Y. 165. De Gray v. Monmouth Beach Club House Co. 5 Dick. 329. These considerations dispose of all questions founded on the nature of the ownership of lots 176 and 177 by the predecessors of the plaintiffs in title and others.

The рlaintiffs are not barred by loches. The work had been done before they discovered that the erection was outside of the ‍​‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌‌‌‌‌‌‌​​​‌‌​‌‌​‌‌​‌‌‌​​​‌​‌‍building line. As it was going on it was hiddеn from public view by the erection of a very high board fence which enclosed *369the premises along the sidewalk. Proceedings were commenсed promptly after the discovery. See Linzee v. Mixer, 101 Mass. 512, 527; Attorney General v. Algonquin Club, 153 Mass. 447.

ISTor have they waived their right to enforce this restriction by their failure to prosecute certain other owners who have built out certain projections in some of the higher stories of their buildings. Bacon v. Sandberg, 179 Mass. 396,399. Payson v. Burnham, 141 Mass. 547. Knight v. Simmonds, [1896] 2 Ch. 294. German v. Chapman, 7 Ch. D. 271. Mitchell v. Steward, L. R 1 Eq. 541.

The change in the use of the buildings on the street since the execution of the indenture does not affect the plaintiff’s right. The importance of the maintenance ‍​‌​‌‌‌​‌‌‌​‌​‌​‌‌​‌‌‌‌‌‌‌‌‌​​​‌‌​‌‌​‌‌​‌‌‌​​​‌​‌‍of a building line may be as great when buildings are used for purposes of business as when they are occupied only as dwellings. The case of Jackson v. Stevenson, 156 Mass. 496, is very different in its facts, and the decision is not applicable tо the present suit. See Evans v. Foss, 194 Mass. 513; Zipp v. Barker, 40 App. Div. (N. Y.) 1; S. C. 166 N. Y. 621.

We are of opinion that this is a case in which the plaintiffs are entitled to a remedy by injunction, and that they should not be forced to accept a violation of the contract with a payment of damages. Attorney General v. Gardiner, 117 Mass. 492. Sanborn v. Rice, 129 Mass. 387. Attorney General v. Algonquin Club, 153 Mass. 447. Evans v. Foss, 194 Mass. 513; Daly v. Foss, 199 Mass. 104. The defendants proceeded with knowledge of the prоvisions of the indenture, and took their chances of the effect of their conduct upon the plaintiff’s rights. Upon similar facts it has been the practice of the courts to grant a mandatory injunction. Besides cases above cited see Hills v. Metzenroth, 173 Mass. 423 ; Reardon v. Murphy, 163 Mass. 501; Hamlen v. Werner, 144 Mass. 396; Bagnall v. Davies, 140 Mass. 76; Creely v. Bay State Brick Co. 103 Mass. 514; Boland v. St. John’s Schools, 163 Mass. 229; O’Brien v. Goodrich, 177 Mass. 32.

Decree for the plaintiffs.