26 A.2d 891 | N.J. | 1942
This is an appeal from a mandatory injunction of the Court of Chancery compelling the defendants to remove or demolish certain buildings constructed by them in alleged violation of a restriction as to cost, running with the land; or, to bring the true cost thereof up to the amount of the minimum imposed by the restriction.
Complainants and defendants are the owners respectively of certain dwelling plots the title to which is derived from a common predecessor in ownership who originally subdivided a larger tract into streets and building lots, filed a map thereof, and sold from it to individual purchasers by deeds containing a series of restrictions as to use, including one prescribing the minimum of cost for any house or garage that might be erected upon the lot conveyed.
It is claimed that the phrasing of the restriction in question, as used in deeds out of the original grantor, notwithstanding an apparent limitation of its application to the particular lot conveyed by the individual deed, did, nevertheless, when considered with other factors, operate to establish a neighborhood scheme with reference to the entire tract. Defendants' buildings are alleged to be in contravention of the scheme so claimed to have been established. The lots owned by the defendants, however, were never conveyed directly by the original common owner; they were purchased by Hermine Kind, one of the complainants, at a sale in execution of a levy under a judgment in a suit against the corporate owner, Fidelity Corporation of New Jersey; the sheriff's deed to her contained no restrictions. She subsequently *184 conveyed to Haddon Township, imposing the restrictions in question, and Haddon Township later contracted to sell to the defendants, subject to said restrictions.
The following facts give rise to the issues presented in this case:
In 1924 and 1925 Fidelity Corporation of New Jersey developed two tracts of land, known as Plan No. 1 and Plan No. 2, respectively, the descriptive term "Haddon Homesteads" being applied to each tract. Maps of plotted lots and streets had been filed, and sales were made from Plan No. 1, comprising 99 contiguous lots numbered 1 to 99 inclusive, and Plan No. 2 comprising 86 contiguous lots numbered 100 to 185 inclusive. The lands affected by the decree under appeal, and owned by defendants Raymond E. Hanly and Hanly Brothers, Incorporated, are in the Plan No. 2 section, and are Nos. 180 and 181. The lots of the complainants McComb and Kind are Nos. 147 and 111, respectively, in Plan No. 2. The lot of the complainants Goldner is No. 99 in Plan No. 1. Complainants contend that both Plan No. 1 and Plan No. 2 were together the subject of the one general neighborhood scheme alleged. Upon their ownership of the lots named they base their claim of right to enforce against the defendants the said restrictions as the basis of an alleged general neighborhood scheme.
As the sales were made by the developer corporation, it included in its deed to the purchaser a series of restrictions. Of 74 lots conveyed, 56 had identical restrictions, the fourth of which reads, "The house to cost not less than $5,000, and the garage to cost not less than $350." In all the deeds the restrictions were substantially similar. The preamble in each case reads, "Subject to the following restrictions and conditions applying to the property hereby conveyed only." The significance of the word "only" in the preamble is of exceeding importance in the consideration and determination of the rights of the parties herein. In fact, it is the dispositive factor. We are constrained to the opinion that the learned Vice-Chancellor failed to ascribe to it its true weight, and that such failure led to an erroneous conclusion in this particular case. *185
As was said in the case of Scull v. Eilenberg,
But the complainants contend that in spite of the precaution taken by the original grantors to protect their unconveyed lands from the burden of the specific restrictions or the implication of a neighborhood scheme, such grantors, nevertheless, effected such a qualification of the use of their other lands because they or their agents orally represented to purchasers from time to time that their said other lands would have imposed upon them the same restrictions, as the lots might be conveyed in the course of subsequent sales. It *187 would be a dangerous rule that purchasers of lots may accept deeds containing a covenant of restriction imposed on the land conveyed, limiting such covenant to the particular land described in the deed, and then they or their successors in title subsequently be allowed to come in with oral testimony tending to subvert the terms of such covenant. In the instant case the oral representation alleged is that all lots would be conveyed with a like covenant. The covenant was that the buildings on the land should cost not less than a certain amount, but that it applied only to the land conveyed by the specific deed in question. The covenant must be read as a whole. The purchaser cannot retain the benefit of the part restricting the building cost and ignore the part which prevents it from having application to any other land than that which the purchaser buys. And to say that the owner in his written deed held the restriction to the land therein described only, but nevertheless held out orally to the purchaser that a like restrictive covenant would be incorporated in all future deeds, is simply to say that the seller was merely going to repeat the limiting words in his future deeds, the effect of which, of course, would be to continue the original protection it afforded to his unsold lands, and mean that he was not permitting the burden of a neighborhood scheme to fasten upon the land. So the contention of the complainants brings them no advantage from that direction.
We find, therefore, that the limitation of the restrictive covenant to the lands conveyed by the respective deeds in which such covenant was incorporated negatived any intention of the grantor to impose a neighborhood scheme upon the remaining unsold lands, and was in fact express notice that such a burden should not attach thereto.
The cause will be remanded for the purpose of having a decree entered in the Court of Chancery denying the injunctive relief sought, and dismissing the bill of complaint.
For affirmance — THE CHIEF-JUSTICE, BODINE, PERSKIE, PORTER, DEAR, RAFFERTY, JJ. 6.
For reversal — PARKER, CASE, DONGES, HEHER, COLIE, WELLS, HAGUE, THOMPSON, JJ. 8. *188