104 N.Y.S. 462 | N.Y. App. Div. | 1907
Lead Opinion
On August 10, 1870, James Lenox conveyed a plot of land, 102 feet 2 inches On Madison avenue by 195 feet on Seventy-third street, to one William Lalor by á deed containing the familiar covenant against nuisances, to. which was supera'dded a clause to the effect that the grantee “ will use or suffer the said'premises! to be. used for the erection of first-class private residences only.”
It does not appear in this action that Lenox owned any other real property in' the neighborhood. The lots now owned by. plaintiff and defendant respectively .are both comprised within the plot thus conveyed, and the question at issue is whether the restriction above recited still obtains against one of the lots included in said plot so that it may be enforced by the owner of another lot also so included. . . ■
In 1870 Lalor conveyed a one-third interest in said plot to James H. .Coleman by a deed containing no covenants except one against the grantor’s own acts, and containing no reference to the- covenants ' in the deed from Lenox to Lalor. ■ .
On July 1, 1871, Lalor and Coleman Conveyed the whole, plot to James E.-Coburn-by a full covenant,warranty deed which contained the following clause-: ' Subject to the covenants, conditions and restrictions against nuisances and, buildings contained in deed of James Lenox of the above described premises,” Simultaneously
Coburn, who was a builder, proceeded to erect houses on the several lots, and conveyed the same to different parties. In 1879, when the mortgages to the North American Life Insurance Com- - pany were foreclosed, the property now owned.by plaintiff was owned by one Mary H. Moore, and the property owned by defendant • was owned by one Artemas H. Holmes, the said Moore and. Holmes' " holding title under conveyances made to them or their predecessors in title by Coburn subsequent to the execution of the mortgages to the life insurance company and subject' thereto. It does not appear that any of these conveyances referred in any way to the restrictive covenants in the deed from Lenox to Lalor.i
In 1879 the mortgages held by the North American Life Insurance Company were foreclosed, and the lot now owned by plaintiff was conveyed by the referee to the said Mary H. Moore, then the ownér of the equity.of redemption thereof, and the lot now owned by deféndant was conveyed by said referee to Artemas H. Holmes, then the owner of the equity of redemption thereof. The -referee’s deed contained no reference whatever to any restrictions upon the property, or to any restrictive covenants contained in the deed from Lenox to Lalor.
It is a well-established rule of law respecting easements that a merger of titles to" the dominant and servient estates operates to extinguish the easement, as must necessarily be the case, and while such a restriction, as Lenox undertook to impose upon "the land which he conveydS. to Lalor is not, perhaps, technically an easement, it is closely analogous thereto and is frequently termed, a negative easement. Consequently it seems to be clear that Lalor held the plot conveyed to him free from any reciprocal rights or restrictions . in favor of any part of that plot as against any other. "What right Lenox may have reserved in behalf of other property owned by him, if there was any,, not included in the plot to Lalor, it is not necessary to consider.. Lalor, therefore, had the right- to deal with
We are, therefore, of the opinion that as between the several owners of lots embraced in the plot above described no restrictive covenants attach.
The judgment should, therefore, be reversed and the complaint dismissed, with costs in this court and the court below.
McLaughlin and Houghton, JJ., concurred ; Patterson, P. J., and Lambert, J., dissented,
Dissenting Opinion
(dissenting):
The defendant in this action is the owner of certain premises at the northwest corner of Madison avenue and Seventy-third street, in the city of New York. There is a dwelling house lipón such premises, and the defendanfclias filed plans with the building department under which it is proposed to transform this residence into a store, with offices overhead. The plaintiff is the owner of a house and lot between'. Seventy-third and Seventy-fourth streets on the westerly side of Madison avenue, adjoining the rear of defendant’s lot, and the latter has succeeded in his action for an injunction restraining the defendant from thus changing the residence into a business place. Both parties derive title from one James Lenox,
“ The said party, of the second part (Lalor), for himself, his heirs, executors, administrators and assigns, doth covenant, promise and agree to arid with the said party of the first part (Lenox), his heirs and assigns, that he will not at. any time hereafter erect, make, establish or carry on or suffer to be erected, made, established or carried on in any manner or any part of the above described and hereby granted premises, any livery stable, railroad depot, slaughter house, tallow, chandlery, steam engine, smith’s shop, forge, furnace, brass foundry, nail or other iron factory, or any manufactory for the making of glass, glue, varnish or vitriol, ink or turpentine, or for the tan-' ning, dressing or preparing or keeping of skins, hides or leather, or theatre, opera house, brewery, distillery, molasses or sugar refinery, lager 'beer or concert saloon,, or any manufactory, trade or business whatsoever which may be in anywise noxious or offensive to the neighboring inhabitants, but will use or suffer the said premises to-be used for the erection of first-class private residences only.”
. The court in the equity term granted, a permanent injunction. The defendant appeals.
The presumption here, as in every other case, where a restriction is inserted in a deed against undesirable structures or trades, is that the 'insertion was for the purpose of protecting rights which the. grantor had in adjacent property. (Post v. Weil, 115 N. Y. 361, 372.) The grantee, by accepting the deéd containing this restriction, assumed an obligation to devote the premises.within the limitations prescribed,, and' this agreement was enfórcible by any inter-" est entitled to invoke its protection. (Post v. Weil, supra.) It is conceded on the part of the appellant that the premises conveyed by Lenox to Lalor were obviously “ intended to be cut up into lots,” and this is manifest .by the fact that the covenant was. that the grantee would “ use or suffer" the said premised to be used" for tlie erection of first-class qjrivate residences only,” and' this' was the use "which was-actnally made of the premises, á number-of houses having'been subsequently erected upon the: premises described, each
“ Can there, then, be anything much more inequitable or contrary " to good conscience,” to quote the language of Chancellor Cottenham, in Tulk v. Moxhay (1 Hall & Tw. 105, cited with approval in Hodge v. Sloan, 107 N. Y, 244,252), “ than that a party who takes property at a less price because it is .subject to a restriction, should receive the full value fi;om a third party, and that such third party should then hold it unfettered hv the restriction under which.it is granted ? ” Obviously, such is not the law, and the appellant concedes that so far as Lenox, the original grantor, is concerned, he or his heirs is entitled to have this covenant enforced; but it is urged that as the grantor sold the entire parcel, and has no further interest in the same, that as between, the present owners of the subdivisions there is no right to injunctive relief.
William Lalor and wife conveyed to one James H. Coleman an undivided one-third interest in the premises conveyed to Lalor, and in the deed from Lalor and his wife to Coleman there was. no mention of these restrictions,.but there was no partition of the premises, so 'that Coleman merely became' the .owner of an undivided one-third, all.of the premises being subject to the restrictive covenant. On the 1st day of July, 1871, the said William Lalor and James H. Coleman, and their respective wives, conveyed the whole of the said plot of ground to one James' E. Coburn by full covenant and warranty deed conveying' the property subject to certain specified mortgages, and containing the following words, viz.: “ Subject to the covenants, conditions' and restrictions against nuisances and buildings contained in deed of James Lenox of the above described premises.” “ The language of courts and' jukges 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 hé has notice.” (Holt v. Fleischman, 75 App. Div. 593, 599.) It is very certain that Coburn, by accepting this deed, “.subject to the covenants,” etc., contained
It seems clear, then, that the property came into-'the ownership of Coburn in exactly the same condition that it passed to Lalor from Lenox. Coburn, to raise money to complete his purchase, subdivided the premises into eleven lots, and mortgaged each by a separate • mortgage to the Xorth American Life Insurance Company, so that -the lots now oivned by the plaintiff and defendant, respectively, were covered by distinct mortgages. Xeither of these mortgages contained any reference to the restrictive covenant in the original deed. However, as Coburn could'get. no higher title, than that which Lalor held, he could not enlarge his ownership in the premises by merely omitting a reference to this restriction, which was contained'in the deed from which the title descended, and was, therefore, record notice to all who became interested in the ,premises. These two mortgages appear to have remained unpaid and. unf'oreclosed until the year 1879, when they were both foreclosed. Thé lot now owned -by the plaintiff was sold by the referee in foreclosure to - one Mary A. Moore, who at the time was the.owner.of the -equity of redemption, and the deed to her followed the language Of the mortgage, containing no reference to the restrictive clause. The lot now owned by the defendant was sold by the referee to .the Ai-temas H. Holmes, who was the then- owner of the equity of redemption, and the deed was in substance the same as that under which the'plaintiff’s predecessor took title. JBy mesne.conveyances from Mr. Holmes, who was the purchaser of the defendant’s property, the title passed to one Jacob Tallman. in the year 1887. Xeither' the. deed from Mr. Ilohnes, nor any of the' intermediate deeds down to the one which conveyed to Tallman, -contained any reference to the Lenox restrictions, but when. Tallman came to take ' ■ his warranty deed, it was made .“ subject to the covenant against nuisances and as to buildings contained in a certain deed made' by • James Lenox to. William Lalor, dated the 10th day of August, 1870, and recorded in the office of the register aforesaid/’ etc. - The defend
It appears that while the entire plot was -in the possession of Coburn eleven private residences were constructed upon the premises, and that they have been occupied as such private residences down to the present time, except that three of the original houses . have been torn down-and- replaced by superior structures, still conforming to the requirements of the restrictive covenant in the original deed. This is a practical construction of the deed; every purchaser must be deemed to have purchased with reference to the condition as it existed at the time of the transaction, and at all tiines both the plaintiff and defendant had notice of the fact that this was a residential block, and the deed from which they derive title, and which was duly recorded, told them at all times that only buildings of a like character could be erected upon any of these eleven lots. Each must be presumed, therefore, to have purchased only the right to erect and. maintain a first-class private residence upon his lot, and as ho one of them could gain any higher fight, each one'of them has an equitable right to insist that no one of them shall disregard the conditions.. Lenox, in selling the premises in 1810, exacted, as.lie had a right to do, a covenant restricting the use of the premises. It is conceded that it was contemplated that the property should be cut up into building lots for private residences, and this purpose was fully carried out,- and in the contemplation of equity every purchaser of one of these lots thus limited took the right to enforce the same restriction against his neighbor. It does not do to say that it was a right reserved alone to the original grantor, for this would make the rights of purchasers in good faith to depend upon the mere caprice of Lenox. . One might be permitted to do any of the prohibited things, while all the others might be deprived of the beneficial use ,of their property by reason of such acts. ■ As we have already indicated, the, law presumes that such restrictions are made fdr the benefit of the grantor’s adjacent property, and from all that appears in the record, Lenox may own all of-the property in that neighborhood outside of the block, or he may have owned
There is no evidence in this case which would'warrant the' conclusion that the character of the locality had so changed'as to make it ’-inequitable to enforce this covenant against the defendant; the plainly avowed purpose of the change is -to enable the defendant to secure "higher rentals for a business house than she can secure in its present form; and thus to get what neither she nor any of her. predecessors in title from Lenox ever bargained and paid for. We think, as against the plaintiff in this action, she has no such right, and that the judgment of the court at Special Term is in harmony with the'; authorities controlling within' this jurisdiction.
Tlie judgment appealed from should be affirmed, with costs.
Patterson, P. J., concurred.
Judgment reversed and complaint dismissed* with costs to appellant in this court and in the court below, . '-
