103 N.J. Eq. 39 | N.J. Ct. of Ch. | 1928
The parties to this suit are owners of adjoining lots, with dwellings on Madison avenue, Madison, parts of a seven-acre tract once owned by Francis S. Lathrop. Mr. Lathrop restricted the tract to two dwellings, and later released the restriction as to number. The defendant is using her dwelling as an inn, and the complainant claims that she is bound by the covenant, and seeks to restrain its violation. In 1866, Mr. Lathrop conveyed the tract to Antoinnette Van Voorst, who covenanted, inter alia, "That no buildings excepting dwelling houses and the necessary outbuildings shall be erected thereon. And at no time shall there be thereon more than two dwelling houses with the outbuildings for the same." The covenant ran to the grantor, "his heirs, executors and administrators [and * * * his assigns, being owners of adjoining property]." At that time Mr. Lathrop owned forty and more additional acres adjoining or in the vicinity, *40
and presumably others held by grant from him. The title to the tract eventually came to Hannah C. Young in 1897 through mesne
conveyances, and in one or more of the deeds, in the chain of title, the covenant was omitted. In that year Mr. Lathrop, and others in interest, released the restriction on the number of houses to be erected. Mrs. Young split up the tract and conveyed the complainant's lot on Madison avenue to one Duryea in 1900, who, in 1907, conveyed to the complainant. These conveyances were made subject to the restriction. Mrs. Young conveyed defendant's lot, adjoining the complainant's on the east, to one Baker in 1923, and also all her land eastward on the avenue. The covenant was not mentioned in the deed. When Baker conveyed to Ford and he to the defendant, in January, 1927, the conveyances were made subject to the restriction. Mrs. Young disposed of the remainder of the tract west of the complainant's lot free of restriction. Every one who took title to the seven acres, or to lots after it was split up, was amply charged with notice of the rights that sprang from the covenant and are bound to respect it. But bound to whom? At law, not to any one but the covenantee, Mr. Lathrop, "and his assigns, being owners of adjoining property," and to those upon whom their title devolved, if the covenant ran with their lands or was assigned with the grant; and, in equity, not to the complainant, unless it appears that the covenant was taken for the benefit of the owner of the seven acres; and that can hardly be asserted. The covenant is a burden on the owner of the land, not a benefit, and was, obviously, imposed for the protection of the remaining lands of the grantor, to preserve the then rurality of the surroundings. That is evident from the restriction to two dwellings to the tract. The modification of the restriction in this respect did not alter the commitments of the covenant nor change its character as a burden. When Mrs. Young obtained permission to build as many dwellings as she saw fit, and then sold the tract in parcels, there was no new undertaking implied between her and her purchasers, or among theminter sese. Her conveyances to them, subject to the covenant, simply evidenced their obligation to the covenantee, not one to her or to each other. The *41
reference to the covenant in their deeds, obviously, was only to mitigate the force of the therein warranty of title and covenant against encumbrances. There is nothing from which the inference may be drawn that the restriction to dwellings was thence to be for the benefit of the owners of the parcels. There is nothing that resembles, in the least, a general building scheme, as inScull v. Eilenberg,
Winfield v. Henning,
In Greene v. Creighton, supra, the owners of a tract of land conveyed to the city of Providence a strip for Halsey street, with a covenant that all houses should be set back a given distance from the street line. Later, the defendant acquired a lot on the street and sold it with covenants and was sued for breach. The title was not as warranted and recovery followed. The analogy to Winfield v. Henning is remote.
The doctrine of Winfield v. Henning cannot be followed to sustain an injunction in this case. The covenant may be enforceable by the covenantee, but, as among owners of the several subdivisions of the seven-acre plot, they owe no duty one to the other to observe it, and the bill will be dismissed. *45