Ostrander v. Livingston

3 Barb. Ch. 416 | New York Court of Chancery | 1848

The Chancellor.

It is perfectly evident that no such building has been erected, upon either of the lots leased to Brower, as was contemplated in the agreement between .the defendants and The Sterling Company, or as Brower cove nanted to build on each of those lots. True it was not required that the two story dwelling house with a brick front should cover the whole front of the lot of twenty-five feet in width. But the erection of such a house as is described in the agreement, if built partly on one lot and partly on the other, was not a compliance with the terms of that agreement, or with the covenants in the sub-leases, as to either of the lots. The complainant as the assignee of the interest of Brower, therefore, was not entitled to any benefit whatever under the agreement of January, 1827. For the covenant in that agreement in favor of the sub-lessees or assignees of particular lots, giving to them (he right to an independent, appraisal in reference to their improvements, was limited to such lots as should have been improved by such sub-lessees, or assignees, or those claiming under them, in the manner which was contemplated in that agreement.

The rights of the complainant, therefore, in reference to improvements, are no greater than they would have been if the agreement of January, 1827, had never been made. And the vice chancellor was right in supposing that under the covenant in the original lease the value of the whole leasehold premises, and the value of the whole of the improvements, were to be separately estimated; and that the lessors had the privilege of taking all the buildings at such valuation, or of conveying the whole of the premises demised, upon being paid the price at which the whole premises exclusive of improvements were valued ; at their election. That covenant in the original lease, therefore, was in its nature indivisible. And if the entire interest of the lessee in distinct parcels of the demised premises had been assigned to different individuals, all who were interested in the performance of the covenant, or in the different parcels of the demised premises, must have united in the appraisal; and in the purchase of the whole premises, if the lessors elected to convey the same at such appraisal.

This covenant, however, was so far modified, in favor of the sub-lessees or assignees of particular lots who should comply with the terms of the subsequent agreement, as to exempt the lots, underlet or assigned to them respectively, from this general appraisal. The effect of the subsequent agreement, therefore, was the same as if the particular lots which were leased or assigned, and built upon in conformity to the terms of the agreement, had formed no part of the premises originally demised to Holley. The bill shows that several other of the lots, of 25 feet by 100 feet, into which the first parcel of the demised premises was subdivided by The Sterling Company, were sublet to different persons. But who such persons were, whether any buildings were erected on their respective lots, and if so, whether they were erected in conformity to the provisions of the agreement of January, 1827, does not appear. No relief, therefore, could be granted upon this bill, even if the complainant had made out a case entitling him to equitable relief in other respects.

M. Livingston, jun., who is the legal assignee of a part at least of the premises originally demised, so far as relates to this covenant for appraisal, &c. appears to be a necessary party to any bill for a specific performance of that covenant by the lessors. It is true, the bill alleges that the consideration of Vernon’s assignment of the lease to him was in fact paid by the lessors. But that did not prevent the vesting of all Vernon’s interest under the lease in him, in equity as well as at law; as there could be no resulting trust in favor of the original lessors, upon the facts disclosed. (See 1 R. S. 728, § 51.)

The decree of the vice chancellor allowing the demurrer, and dismissing the bill, must therefore be affirmed, with costs; but it must be without prejudice to the rights of the complainant, if he has any, in any future litigation.