112 N.Y.S. 243 | N.Y. Sup. Ct. | 1908
The plaintiff and one Swimm were, a.t one time, owners of adjoining lots in Brooklyn. In October, 1891, they entered into a written agreement, under seal, providing for the erection of a party wall on the dividing line of their respective premises. This agreement provided that the plaintiff should build the party wall and that Swimm or his grantees, assigns or legal representatives might use
The plaintiff contends that the covenant requiring payment for the use of the party wall runs with the land. He brings an action to procure a judgment declaring the amount in question a lien upon that portion of the land which is affected by the party wall structure and asles foreclosure and sale, if the amount be not paid within a period of time to be designated by the court.
In this action he malees both Burr and Eelgenhauer defendants. Both of the defendants demur to his complaint. Each of them contends that the covenant to contribute to the cost of the erection was personal to Swimm and did not run with the land and in no way binds them or either of them. Burr is not now the owner of any land affected by the party wall. If the covenant runs with the land it binds
It is true that in Bedell v. Kennedy, 38 Hun, 510, a similar covenant was held to run with the land and to bind personally the grantees who used the party wall; but this decision was unsupported by authority and in opposition to prior express rulings of the Court of Appeals, and I cannot consider it as a binding authority on this point. Therefore, assuming’ the plaintiffs contention that the covenant for contribution runs with the land, Burr, no longer owning the land, is neither a necessary nor a proper party to this action, as he did not expressly assume the burden of the covenant; and the complaint states no cause of action against him. Merely taking land “subject” to the burden of a lien creates no personal obligation on the grantee to satisfy the lien personally, the land itself being the exclusive source of satisfaction, without an express assumption of the obligation. If, however, the covenant does not run with the land, then no cause of action is stated against Eelgenhauer, the present owner of the land.
If a covenant is of such a nature that it can run with the land, under the long settled rules of law, then the question whether it does not run with the land is one dependent upon the intent of the parties. A covenant of this nature can be made to run with the land, if the parties so intend. Mott v. Oppenheimer, 135 N. Y. 312; Guentzer v. Juch, 51 Hun, 397; Bedell v. Kennedy, 38 id. 510. It seems to me indisputable that the parties to the covenant here in question did so intend. Swimm expressly bound his “ grantees ” and agreed that the covenants should run with the land. The agreement was recorded'pursuant to law, and all subsequent grantees had constructive notice. It is contended, however, that, under certain authorities in this State, Swimm’s covenant must be held to have been personal to himself and not to run with the land. These authorities are Cole v. Hughes, 54 N. Y. 445; Scott v. McMillan, 76 id. 141; Sebald v. Mulholland, 155 id. 455; Hart v. Lyon, 90 id. 663. Each
It will be seen, therefore, that the part of the opinion which held that a covenant of this character must be personal on the part of the adjoining owner 'and did not run with the land was in no way necessary to the decision and may be considered obiter. Furthermore, in that case, there was no express language binding “ grantees ” or providing that the covenant should run with the land. Likewise is the opinion in the Scott case, ut supra, which was decided expressly on the strength of the Cole case. Hor is the recent case of Sebald v. Mulholland, ut supra, any more in point. In that case the agreement for contribution was clearly personal to the builder of the wall, and the action was brought by a grantee of that person without any special or general assignment of the grantor’s rights for contribution under the party wall agreement. Then again the agreement for contribution expressly bound only the parties and their “ personal representatives.” There was no language whatever attempting expressly to bind “ grantees,” as there is in the case at bar. FT or is the decision in Hart v. Lyon, 90 H. T. 663, in any way determinative of the question now under consideration;
I am of the opinion, therefore, that the covenant here in question clearly runs with the land. The demurrer of the defendant Felgenhauer is, therefore, overruled, with leave to him to answer on the usual terms. The demurrer of the defendant Burr is sustained.
Ordered accordingly.