78 N.Y.S. 647 | N.Y. App. Div. | 1902
Lead Opinion
This is an appeal from a judgment dismissing the complaint in an action in which the relief sought is a perpetual injunction to restrain the defendant from erecting on premises adjoining those
Perley Holt, in the year 1866, erected a first-class dwelling house on the premises conveyed to him, and placed the front of his building on a line with the fronts of the adjoining houses. The house, so built by him has ever since its erection been used as a family residence, and the title thereto, through various conveyances, became, vested in the plaintiff in October, 1899, and she has since then been the owner and in possession • of the same. The defendant is the owner of adjoining property on the west of the plaintiff’s premises.
In dismissing the complaint, the learned judge found that the defendant’s premises were sold at public auction, under a judgment in a partition suit between the devisees of Ann Bushnell, to Henry Morganthau, who assigned his bid to the defendant, and the defendant took a deed from the referee on payment of the purchase price. The deed contained no reference to the covenant of Ann Bushnell, contained in her deed to the plaintiff’s predecessor in title, and the defendant claims that it was not until January 29, 1901, that the existence of the covenant came to his notice. At that time he had obtained and filed in the building department plans for the erection upon the premises of a seven-story apartment house to cost about $100,000 (which house has since been erected on the land), and the defendant had made a contract for the excavation of the foundation which had actually been begun and he was negotiating contracts for the erection of the entire building. The learned judge decided that both covenants contained in the deed from Ann Bushnell- to Perley Holt with regard to the erection of first-class dwelling houses upon the property conveyed as well as upon the property retained by the grantor, were positive covenants operating only upon the first houses thereafter to bé'erected on the property or any part thereof, and that they did not now restrict the plaintiff from
We are not able to concur with the learned judge at Special Term in the conclusion he has reached. The covenant in this case was made by Mrs. Bushnell, the owner of a tract of land, for the benefit of her grantees and also for her own benefit. It is a necessary result of the finding of the court below that if the covenants were operative only as to the first house thereafter to be erected on the land they did not run with the land. That is not a correct view as we understand it of the covenant relating to the restricted line upon which houses were to be erected. That covenant, which is the only one requiring consideration (for we do not regard the erection of this apartment house as being a violation of the covenant as to the character of buildings permitted), is one the effect of which was to give easements of light and air to adjoining properties. It is intimated that it was held in Hurley v. Brown (44 App. Div. 480) that covenants such as those in this ease do not run with the land; but the court did not so decide. It only expressed a doubt whether the covenant there considered ran with the land so as to be enforeible against a subsequent grantee. It did not decide the point, but it did expressly hold that where there was a restriction against building within twenty feet of a particular line, there could be no question of the efficacy of that restriction. (See, also, Levy v. Schreyer, 27 App. Div. 282; Zipp v. Barker, 40 id. 1; affd., 166 N. Y. 621.)
It is urged by the respondent that the restrictive covenant is not binding upon him, because he never had notice of its existence and there was nothing disclosed which would put him upon inquiry before he completed his purchase and took title to the land. In Trustees v. Lynch, (70 N. Y. 440) the restrictive covenant was declared to be a right in perpetuity going with and attaching to the land in the hands of all subsequent grantees taking title with notice of its existence, and many authorities are cited to sustain the proposition that where an equity is attached to property, in order to bind a purchaser with that equity, he must have notice of it. Thus in Tulk v. Moxhay (2 Phill. Ch. 774) it is said that “if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.” The language of courts and judges has been very uniform and very decided upon this subject, and all agree that whoever purchases lands upon which the owner has imposed an easement of any kind, or created a charge which would be enforced in equity against him, takes the title subject to all easements, equities and charges however created, of which he has notice. (See, also, Acer v. Westcott, 46 N. Y. 384; Clark v. Devoe, 124 id. 120; Equitable Life Assurance Soc. v. Brennan, 148 id. 661.) But in the case now before us there was that upon record which gave the purchaser notice of the existence of the restrictive covenant which operated to give Perley Holt an easement of light and air over the restricted area of the defendant’s premises. The covenant was contained in a deed of adjoining property which came from the same grantor, the source of the defendant’s title. In 1866 Ann Bushnell owned the whole plot of 145 feet; the defendant takes from her devisees. In examining the title it was to be found that in 1866 Ann Bushnell, the owner of the whole tract, conveyed a portion of it, retaining another portion for herself. Her deed to Holt
While the deed from Ann Bushnell to Perley Holt is not directly within the defendant’s chain of title, yet it is intimately related to-the land retained by Mrs. Bushnell when she made the covenant. We think the existence of this deed with the covenants upon the record must be regarded as constructive notice to the defendant. It is true that the specific enforcement of the covenant binding the defendant not to build beyond the line of the plaintiff’s house rests within the discretion of the court, but, upon this record, we see no-reason for withholding the relief to which the plaintiff was entitled! when this action was begun.
The judgment appealed from should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
Ingraham, Hatch and Laughlin, JJ., concurred.
Concurrence Opinion
I concur with Mr. Justice Patterson. At common law an ease.ment or right in real property could be created by grant, and when such easement or right was thus created, the fact that a purchaser of the servient estate took it without knowledge of the grant, was no defense to an action brought to enforce it. The defendant’s-
In Mott v. Oppenheimer (135 N. Y. 312) an agreement had been entered into by P. and A., who were the owners of adjacent lots in the city of Few York, whereby it was provided that either party, his heirs or assigns, might erect a certain party wall, the center line of which should coincide with the dividing line of their lots. It was held that this was an agreement that ran with the land, but the defendant there claimed that he took title to the land without notice of the covenant. Judge Gray, in delivering the opinion of the court, says : “ If the agreement constituted a charge upon the defendants’ lands, I think it quite immaterial whether the
Judgment reversed, new trial ordered, costs to appellant to abide event,