172 Mich. 457 | Mich. | 1912
Lead Opinion
(after stating the facts). The bill seems to ,have been filed solely in reliance upon the contract, and the answer meets the averments of the bill. The prayer for relief is that defendants be enjoined from erecting or causing to be erected upon said lot any building or
To fully define the rights of the parties, it is necessary to pass upon the agreement. Defendants contend that the agreement by its terms was not to go into effect until executed by the owners of all of the 50 lots, and that, as only a bare majority (26) signed, the contract never became effective or binding on those who did sign. A careful examination of the contract convinces us that it will not support this construction. The parties are described as—
“Owners of one or more lots in the Chandler Ave. subdivision * * * described as lots 50 to 74 both inclusive, situate on the north side of said Chandler Ave. and also lots numbered from 25 to 49 both inclusive, situate on the south side of Chandler Ave.”
Nowhere in the contract does it appear that the owners of all of the lots described (numbered from 25 to 74) must sign the contract before it shall become operative or binding upon those who did sign. Moreover, the testimony
We think the mutual agreement to observe the restriction was an adequate consideration passing from each signer to the other signers, and likewise that it was valuable, clearly not so valuable as if all had signed, yet having a tendency to raise and maintain the character of Chandler avenue as a residence street.
It is next contended by defendants that the agreement constitutes a purely personal covenant, binding upon nobody but those who signed, if binding upon them. The contract reads:
“In consideration of the mutual covenants herein contained (we) do hereby agree to and with each other, and for our and each of our heirs, executors, administrators and assigns, as follows.”
The word “assigns” comprehends all those who take either immediately or remotely from or under the assignor, whether by conveyance, devise, descent or act of law. 1 Words & Phrases, p. 577, and cases cited. There is no doubt that these defendants, who hold their title from Vogt, who signed the contract, come within the legal definition of the word. The expressed purpose of the contract, and the fact that it was so executed as to entitle it to record, clearly demonstrates that it was intended to be binding not alone upon the signers but upon all their successors in title as well. That the remedy may be had by and against the grantees of the respective parties, is authoritatively settled. Watrous v. Allen, 57 Mich. 362 (24 N. W. 104, 58 Am. Rep. 363); Whitney v. Railway Co., 11 Gray (Mass.), 359 (71 Am. Dec. 715); De Gray v. Club House Co., 50 N. J. Eq. 329 (24 Atl. 388); Atlantic Dock Co. v. Leavitt, 54 N. Y. 35 (13 Am. Rep. 556); Brouwer v. Jones, 23 Barb. (N. Y.) 153; Hubbell v. Warren, 8 Allen (Mass.), 173. See, also, 5 Am. & Eng. Enc. Law (2d Ed.), p. 11 et seq.
It is further urged that the restriction has been waived. by the complainants as to lot 49. It is shown that upon the rear end of said lot a barn some 35 by 37 feet was erected without protest, after the contract was executed. We are not .called upon here to determine what outbuildings are reasonable and necessarily appurtenant to a dwelling house for a single family. The erection of the structure contemplated by defendants, whether a flat building or stores, cannot be justified upon the ground that it is a necessary appurtenance to a single dwelling. The fact that it may be less obnoxious than the barn has no bearing upon the question.
The claim is made that to enforce the restriction as to the rear portion of lot 49 would be of no advantage to complainants, while it would cause serious loss to the defendants. We do not think it can be said that the erection of such a structure would not be injurious to lots 45 and 47, owners of both of which signed the contract.
The view presented by the rear end of a row of stores or of a flat building is, we believe, considered neither attractive nor artistic. This building would abut upon the easterly line of lot 47 for nearly half its length, and would be but 50 feet distant from lot 45.
The decree of the court below will be so modified as to enjoin defendants from erecting any structure upon lot 49, except such as are permitted by the restrictive covenants contained in the agreement. Complainants will recover costs of this appeal.
Dissenting Opinion
(dissenting). I am unable to agree with my Brother Brooke. As he states, the original
“It is further expressly understood that the said above premises are subject to the building restriction now existing on said subdivision, and that the said party of the second part assumes all obligations in conformity with said building restriction.”
In Tillotson v. Gregory, 151 Mich. 128 (114 N. W. 1025), the subject of the building restriction imposed upon lots in this subdivision was considered. It was said:
“A careful reading of the tabulation made of the conditions in the deeds will not disclose a general, uniform, and certain plan of improvement, except that these lots were to be used for residence purposes, as distinguished from business pusposes, and the building line was to be 20 feet from the street line, and the houses were to cost not less than $2,500 and $4,000, according to location.”
This ruling supports the injunction against erecting stores upon lot 49, which affords complainants relief from the injury immediately threatened.
However, I agree that the force and effect of the instrument made in October, 1904, by some of the lot owners, is involved and ought to be determined, and upon that point am of opinion that the covenant contained in the instrument is not binding upon the present owner of lot 49. In the first place, the instrument intended to apply to 50 lots was executed by the owners of but 26 lots. In and of itself, therefore, it would not, and could not, accomplish the purpose therein stated, which was—
“ That for the purpose of making and maintaining said Chandler avenue as a desirable residence street for private families, we do hereby agree, for the consideration hereinbefore mentioned, that we nor either of us will erect or cause to be erected any other than a single dwelling house on each lot planned and designed to be occupied as a dwelling for a single family; that we will not build such dwelling house nearer than twenty (20) feet from the Chandler avenue street line, said twenty (20) feet not to include the porch of such dwelling house, nor nearer than*465 five (5) feet from the side line of our said lots, so that a distance of ten (10) feet between the buildings shall be maintained on said Chandler avenue; that said buildings shall be built of either brick, stone or frame, and shall cost at least the sum of twenty-five hundred dollars ($2,500).”
In fact, the record discloses that Chandler avenue is not a street of single dwellings, and not one on which the dwellings erected are uniformly distant from street and side lines. In the second place, the instrument creates no easement upon lots, and is not binding upon the assigns of those who executed it. It contains a covenant, which is simply a contract, and is purely personal to those executing the instrument, relating only to their own acts. Easements —incumbrances on land — must be created by apt words, and a perpetual easement is not to be inferred from language clearly consistent with a mere personal undertaking.
“ In construing the covenant, it is to be observed that the grantor, although speaking for himself and his successors, to the grantee and his successors, confined the restriction to himself alone, by agreeing that he, the grantor, would neither erect nor cause to be erected any building that should be regarded as a nuisance. According to the literal, and hence natural, interpretation of this language, the parties meant that the grantor should not personally do or cause to be done any of the inhibited acts. No doubt could arise as to the correctness of this construction, if the parties had not agreed in behalf of themselves and their assigns. The substance of the covenant, however, is limited to the covenantor, and purports to restrict his action only. While the capacity in which he assumes to contract is in behalf of himself and others, the actual contract, or the thing agreed not to be done, is limited to his own acts. Clearly the inconsistency cannot be dispelled . by subordinating substance to form, or by holding that the actual agreement is of less importance than the capacity in which it was made.”
This is the language of the court of errors of New York in construing a covenant contained in the very deed of the land. Clark v. Devoe, 124 N. Y. 120, 124, 125 (26
