46 N.J. Eq. 386 | New York Court of Chancery | 1890
The ease which the complainant lays before the court, as the foundation for the relief he seeks, is one of extreme novelty. Stated generally, it must be said that the complainant is before the court asking to be relieved, as against the defendant, from the ■obligation of a covenant which he made voluntarily, fully understanding what he was doing, entirely uninfluenced by fraud, and without the least mixture of accident or mistake. To present his case so that it may be easily understood, it will be necessary to state the facts out of which it arises somewhat in detail.
The covenant which the complainant asks to have nullified is contained in a deed made by John G. Vose and wife to the complainant, bearing date the 15th day of May, 1867. The deed conveys four acres of land. The land is described in the deed, as “ being part of the estate called Montrose,” the different parts ■of which, the deed says, were conveyed to Mr. Vose by ten different conveyances, the dates of which, together with the names ■of the grantors and the dates and places of registry, are all recited. Immediately following the description of the land conveyed, the deed says, the premises conveyed by it are shown on map of Montrose, dated January 1st, 1867, which is filed in the ■office of the register of Essex county, and consist of a portion of lot No. 16 on said map. By this deed the complainant, for himself, his heirs and assigns, covenanted with his grantor, his
“ Or for any other purpose whatsoever which can or may be unwholesome or offensive to the neighboring inhabitants, or for the erection of any buildings of any kind or description, excepting one dwelling-house, with the appropriate gardener’s cottage.”
The covenant then designates a number of other buildings,, and concludes with these words, “ and other buildings and offices-appropriate for a gentleman’s country residence.” The complainant further covenanted for himself, his heirs and assigns,, that the covenant he had just made, restricting the uses to which, the land conveyed to him could be appropriated, should attach to the land and run with its title, and that the covenant should be inserted in all future conveyances and other instruments, whereby the title to his land should be transferred or affected, and that the covenant should forever thereafter be recognized, sustained and upheld; and that it should not only be lawful for-the complainant’s grantor, his legal representatives or assigns,, but also for the owner or owners of any of the property mentioned in the deeds thereinbefore recited — meaning the ten deeds-by which the land called the Montrose estate had been conveyed to the complainant’s grantor — to institute and prosecute any suit or proceeding, at law or in equity, for a violation, or threatened violation, of the covenant • it being understood, as the covenant declares, that the covenant should not be enforced personally-against the complainant unless he was the owner of land to-which it related when its violation was threatened or committed..
These are the restrictions which the complainant voluntarily consented should be put upon the uses to -which the land conveyed to him might be appropriated when he accepted its title. It is not claimed or pretended that the deed to him does not, in every respect, conform precisely to his contract of purchase, and give him just such a title as by his contract he was entitled to-
So far nothing has been said respecting the defendant’s position in the case. His connection with the complainant arose in this way: The complainant’s grantor, on the 1st day of June, 1868, conveyed to Samuel Schoch two tracts adjoining the four acres conveyed to the complainant the previous year. These two tracts lie adjacent to each other, and form one body. One of-the tracts contains one and seventy-five hundredths acres, and the other one and fifty-nine hundredths acres. The deed to Mr. Schoch states that these two tracts are shown as lots Nos. 9 and 10 on a map of property at Montrose, dated April, 1868, and filed in the office of the register of the county of Essex. They were conveyed subject to a restriction, respecting the uses to
The complainant does not ask for a decree declaring that the whole of his covenant is without force in favor of the defendant, but merely that such declaration be made so far as his covenant restricts the number of dwellings which may be erected on his land. As to the other parts of his covenant, he asks no declaration or other aid. The reason it has become important to the complainant to get the declaration he asks, if he can, is this: In 1881 he conveyed one acre of his four to another person, who subsequently erected a dwelling on it. He still retains the title to the other three, so that it will be perceived, if the defendant is entitled to the benefit of the complainant’s covenant* and will have a' right to seek redress against him if he violates it, that the complainant has, by his own act, placed the three acres- which he still retains in a position where his right to use them as a site for a dwelling may always be challenged by the owner of the defendant’s land. This is the situation which has induced the complainant to attempt to free himself from his obligation.
The validity of the covenant between the original parties is not disputed. No claim is made that the covenant was originally Avithout force, because against public policy, or- beyond the
It would appear, then, to be entirely clear that the validity of the covenant under consideration, both as against the complainant and any person who may succeed to his title with notice of the covenant, is free from the least doubt. It follows, necessarily, that the making of the covenant was effectual in putting a bur-then on the land conveyed for the benefit of the land retained. This being so, it would seem to follow, as a logical sequence, that the defendant, by the acquisition of a part of the land benefited by the covenant, has succeeded, in respect to that land, to the covenantee’s rights under the covenant. The covenant, it will be remembered, expressly declares that it shall be láwful for any person who shall become the owner of any of the land described in the ten deeds recited in the conveyance to the complainant, to maintain an action for a violation of the covenant against such person as may be the owner of complainant’s land when the violation is committed. The language of the covenant makes it certain, beyond all doubt, that the parties mutually intended that' the restrictions put upon the land conveyed should have the effect to confer an important benefit on the grantor’s
Indeed, under the principle established by the decision of the supreme court, in National Bank at Dover v. Segur, 10 Vr. 173, I think it must be held that the covenant in question runs with the land held by the defendant, so that if it shall be broken, while he still retains the title, he may maintain an action at law for its breach. The action in that case grew out of the following facts: Segur was doing business at Dover as a private banker; he had commenced the erection of a banking-house on a lot he owned there; while the building was in course of erection he agreed to sell the building and lot to one Hoagland; the contract stated that Hoagland’s object in making the purchase was to form a banking corporation, and then convey the property to such corporation; Segur agreed that when the corporation commenced business he would withdraw from business, and not reengage in business, as a private banker, in the borough of Dover, at any time within ten years thereafter; he also agreed that his covenant to withdraw and abstain from business should run with the land he had agreed to convey, and that, in case he broke it, the owner of the land, at the time the breach was committed, ■should have a right to maintain an action at law against him for its breach. After the property had been conveyed to the bank,
But, as I understand the authorities, the defendant’s right to the benefit of the complainant’s covenant does not at all depend upon the defendant’s ability to maintain an action at law against, the complainant for its breach. 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, 4 Stew. Eq. 385; Whitney v. Union Railway Co., 11 Gray 359; Parker v. Nightingale, 6 Allen 341; Schwoerer v. Boylston Market Association, 99 Mass. 285; Hills v. Miller, 3 Paige 254; Coles v. Sims, 5 DeG., M. & G. 1; Western v. MacDermott, L. R., 1 Eq. Cas. 499; S. C. on appeal, L. R., 2 Ch. App. 72.
The discussion thus far has, I think, demonstrated that two things may be considered settled : First, that the covenant under consideration was originally valid; and, second, that so long as: the covenant shall remain in force, any grantee of the land bene
It is more difficult to describe the other ground. The deed ■to the complainant, it will be remembered, states that the four ■acres conveyed by it consist of a portion of lot No. 16, shown on a map of Montrose, dated January 1st, 1867, and filed in ■the register’s office. No map of that date was ever filed. No map was filed until November, 1869, and the one then filed, the ■proofs show, was made in the spring of 1868. The complainant says that his purchase was made under the map of 1867, and ■that his grantor, between the date of the conveyance to him in May, 1867, and the conveyance to Mr. Schoch in June, 1868, caused a new map of Montrose to be made, by which the land ■composing that estate was entirely changed in its arrangement and division from the arrangement and division originally made -and appearing on the map of 1867. These changes consisted in Jaying out new roads, where none appeared on the map of 1867,
The argument by Avhich it is attempted to maintain this claimi is this : that the complainant’s grantor, by referring to the map-of 1867 in the deed by which the four acres Avere conveyed, made the map a part of the deed, and that Avhen the deed and map are read together, it must be seen that one of the promises,, made by implication tó the complainant Avhen he purchased, was that the arrangement and division of the land composing-the estate of Montrose, delineated on the map of 1867, should, be maintained foreArer for the common benefit of the oAvners of the land. From this condition of affairs, it is contended, that it-results, as a matter of laAv, that the complainant’s grantor became subject to an implied co\renant to maintain inAdolate the-arrangement and diAÚsion then existing, which, if broken, would extinguish the complainant’s covenant. It cannot be disputed, that where the owner of a tract of land cuts it up or divides it in such manner as to give one part an additional \ralue because-of rights which, under the division, are given to it in the other part, and then causes a map or plan of his division, showing.
His claim is, that the court, on looking at his deed and the map to which it refers, must see that it was the mutual understanding of his grantor and himself, at the time the.four acres were conveyed to him, that the arrangement and division of the land in question, appearing on the map of 1867, should be maintained forever. On the facts now before the court, I do not think it is possible to see anything of the kind. It is true that the complainant’s deed refers to the map of 1867, but there is not a word of proof in the case from which it can be inferred that the complainant made his purchase by that map, or that it wms exhibited to him at any time' prior to the delivery of his deed, or when his deed was delivered. The complainant was not examined as a witness, and there is nothing before the court, as evidence, which would support even a suspicion that the complainant, in acquiring the title to the four acres, was in the slightest degree controlled or influenced by the map. But more: the complainant’s deed furnishes conclusive evidence that he
But, had the opposite conclusion on this point been reached, I would still be of opinion that no case had been shown which ■entitled the complainant to the decree he asks. The proposition on which he rests his right -to relief is, that where two persons become bound to each other by different covenants, made at the .same time, that a breach by one party of his covenant extinguishes the covenant of the other. I know of no such rule of law. The complainant, it is important to remember, is not before the court resisting an attempt by the defendant to compel him to abide by the strict letter of his covenant. In such a posture of affairs, it would undoubtedly be the right of the court, -as well as its duty, to look at. the'conduct of the parties to the litigation, and also at the conduct of their predecessors in right -and duty, to see how they had dealt with each other in respect to the covenant, and also to contrast the condition of the property ■when the litigation arose with its condition when the covenant was
Under the form of action adopted in this case, the defendant is entitled to a decree, adjudging that the complainant’s covenant is valid, and that the defendant, as the owner of land lying adjacent to that owned by the complainant, is entitled to the benefit of the complainant’s covenant. The question whether, if the-complainant should hereafter commit a breach of his covenant, the defendant would be entitled to a decree for specific performance, in view of the facts now before the court, has not, of course,, received the slightest consideration. The defendant is entitled; to costs.