Kirkpatrick v. Peshine, 24 N.J. Eq. 206

Kirkpatrick v. Peshine

24 N.J. Eq. 206 | New York Court of Chancery | 1873

The Chancellor.

The questions presented in this case are, whether the defendants are bound by the covenant between the complainant and his vendors (who are their vendors also); whether the complainant may enforce the performance of the covenant in the deed to Mrs. Peshine; and whether, if those questions are determined in the affirmative, the defendants are disregarding the obligation resting upon them, and violating the rights of the complainant. In other words, it is insisted, on the part of the defendants, that they owe no duty to the complainant, that no privity exists between them and him, whether under the covenant between him and his vendors, or that contained in the deed to Mrs. Peshine; and they deny that they have violated, or are about to violate, either the one or the other.

The vendors of the complainant were, at the time of making their covenant with him, the owners of the whole of the land between the complainant’s lot and Broad street, including the land subsequently sold a.nd conveyed to Mrs. Peshine. That covenant was made, on their part, upon a sufficient and valuable consideration, the agreement of the complainant to erect a costly dwelling-house for his own residence upon the property sold to him, and to so place it on his lot as practically to widen the narrow but eligible street known as Lagrange street, between Pennsylvania avenue and Broad street, and to give it the advantages of what is known as a “ place; ” an agreement made by the complainant, in •consideration, and only in consideration, of the agreement on the part of his vendors, that they would secure to him the benefit of such location of his house, by putting their grantees of the.remaining land under obligation, that the houses to be erected on the lots to be conveyed to them should be so erected as to conform to the line thus established. Such an *213agreement was necessary to secure the complainant against irreparable injury to arise from so locating his house; for, to .set his house back, leaving the owners of the remaining lots under no restriction as to the location of the houses on their lots, would be to incur the risk of irreparable damage to his property, by reason of such location of his house, it being obvious, that should the owners of the property between his lot and Broad street build their houses in advance of his, further towards or on the line of Lagrange street, his property would be, ipso facto, damaged. The arrangement was for their mutual advantage. It enhanced the value of their respective properties.

The existence of the covenant was known to the defendants -when Mrs. Reshine took her deed, and she took her conveyance subject to the restriction and obligation imposed by it. The statements in the bill, on the subject of notice to the defendants, are not denied or disputed by the answer.

The agreement between Messrs. Mackin, MeClane, and Keasbey with the complainant, is one to which equity will give effect as against a subsequent grantee, with notice. It is one of that class of cases in which equity will charge the conscience of a grantee of land with an agreement relating to the land, although the agreement neither creates an easement nor runs with the land. The jurisdiction of courts of equity over contracts and covenants, is not confined to cases where an action at law can be maintained, but extends to cases where an action at law is not maintainable. Covenants controlling the enjoyment of land, though not binding at law, will be enforced in equity, provided the person into whose hands the land passes, has taken it with notice of the covenants. Kerr on Injunctions 530; Swgden on Vendors 596. “The question,” said Lord Cottenham, in Tulk v. Moxhay, 2 Ph. 774, “ is not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.”

“ Reason and justice,” said Lord Justice Knight Bruce, in *214DeMattos v. Gibson, 4 DeG. & J. 282, “seem to prescribe', that at least, as a general rule, where a man, by gift or purchase, acquires property from another, with knowledge of a previous contract, lawfully, and for a valuable consideration* made by him with a third person, to use and employ the property for a particular purpose in a specified manner, the acquirer shall not, to the material damage of the third person, in opposition to the contract, and inconsistently with it, use the property in a manner not allowable to the giver or seller.” See also Dietrichsen v. Cabburn, 2 PA. 52; Child v. Douglas, 1 Kay 560; Gilbert v. Peteler, 38 Barb. 488, 514; Parker v. Nightingale, 6 Allen 341; Tallmadge v. East River Bank, 26 N. Y. 105; Hills v. Miller, 3 Paige 254; Barrow v. Richard, 8 Paige 351; Seymour v. McDonald, 4 Sandf. Ch. 502; Brewer v. Marshall, 4 C. E. Green 537.

Not only was there, in the present case, notice of the covenant which had been entered into between the complainant and his vendors, but there was, on the part of Mrs. Peshine, a covenant contained in her deed, binding her, so far as her land was concerned, substantially to the observance of the agreement; and the complainant is entitled to the benefit of the covenant. The defendants are clearly bound by the agreement made by Messrs. Mackin, McClane, aiid Keasbey with the complainant.

The remaining question, whether the defendants have violated the agreement, may be readily disposed of. It appears to me, free from difficulty. The defendants’ lot is about twenty-two feet front on Lagrange street. Their building, which is to be of brick and stone, and of three stories in height, is to occupy the whole width of the lot. When the bill in this cause was filed, their plan, it is admitted, contemplated, on the Lagrange street end, what is termed in the answer “ a bay window ” from the foundation to the roof. Since the order to show cause was served upon the defendants, the plan has, it is alleged, been modified, so that the so called bay window shall not extend, in height, above the first story. This “ bay window ” is not a projection from the wall of the *215house, but itself constitutes and is part of the wall. It is, indeed, all of the wall on the Lagrange street end, except eighteen inches at each corner. For eighteen inches from each comer of the building, on that end, the wall is at right angles to the front and rear walls of the house ; the rest of the wall is a three-sided projection, outside of the inner line of the strip of twelve feet, and occupying, at its widest part, four of the reserved twelve feet. It has a stone foundation, part of the foundation of the house. It is what is known as an “ octagon end,” by whatever other name it may be called, and is a clear violation of the agreement. That it is now proposed to build it no higher than the top of the first story, does not change its character, nor render it free from objection. It is impossible to resist the conclusion, that to permit its construction, would be to allow the defendants to frustrate the intention of the parties to the agreement.

In Child v. Douglas, 1 Kay 560, a case somewhat similar to the present, it was held, that building a wall or fence, of fifteen feet high, across a strip on which the defendant was bound by covenant not to erect a building, would be a violation of the covenant.

The defendants urge that, in the present case, the complainant, himself, has not conformed to his agreement; that in the erection of his own house, he violated it by placing his stoop — a platform and steps — from the house to the street, for the whole width of the twelve feet. I do not think so. The agreement was, that the main front wall of his house should be twelve feet from the line of Lagrange street, and it is not denied that his main front wall is in conformity with his agreement. The object in reserving the twelve feet, and in making the stipulation that the houses on the other lots should be on a line of twelve feet from the line of Lagrange street,- is evident. It was, that the complainant, and those who should build on the other lots, should have the advantage of the twelve feet for ventilation, light and prospect, and should have the benefit to arise to their property from placing their houses on the twelve feet line. The platform and steps *216are not an infringment either of the terms or spirit of the agreement.

It is further insisted by the defendants, that the inconvenience to the complainant, if the structure complained of in the bill be permitted, will be but slight, and that therefore, this court ought not to interfere, by its injunction, to restrain the defendants in the premises.

The rule on this head is correctly stated in Kerr on Injunctions 532. “ There may be cases in which the damage to arise from the breach of the covenant, would be inappreciable, and in which the court would refuse to interfere. But the case must be free from all possibility of doubt. It must be clear that there is no appreciable, or at all events no substantial damage, before the court will, upon the ground of smallness of damage, withhold its hand from enforcing the execution-The mere fact that a breach of the covenant is intended, is a sufficient ground for the interference of the court by injunction. A covenantee has the right to have the actual enjoyment of the property, modo et forma, as stipulated for by him. It is no answer to say that the act complained of will inflict no injury on him, or will be even beneficial to him. It is for the plaintiff to judge whether the agreement shall be kept, as far as he is concerned, or whether he shall permit it to be violated. It is not necessary that he should show that any damage has been done. It being established that the acts of the defendant are a violation of the contract, the court will protect the complainant in the enjoyment of the right he has purchased.

The order to show cause is made absolute.