162 N.E. 600 | NY | 1928
Martha A. Gaines owned real property on the corner of Jane street and Eighth avenue, in the borough of Manhattan. In the year 1923 it was in the market and the president of plaintiff, which is a real estate broker, approached the owner and drafted a letter which he addressed to his corporation and which was signed by Mrs. Gaines. In this letter she authorized plaintiff to act as her broker and named her terms of sale. No mention was made concerning any restrictive covenant on the premises. Within the stipulated time, plaintiff *109 procured a purchaser who was ready to buy on the terms and conditions stated in the owner's letter to the broker, but when the time for closing arrived, a covenant embraced in a deed of the premises executed in the year 1834 and unknown both to the owner and to the broker caused the title company to refuse to insure the title or to loan money on a mortgage and caused the prospective purchaser to refuse to take title. This covenant provides that if at any time the grantee, his heirs or assigns should permit upon the premises a cemetery, slaughter house, manufactory of gunpowder, glue, varnish, vitriol, turpentine, a tannery, blacksmith shop, forge or furnace or any other occupation usually deemed unwholesome, noxious or offensive, "then said premises and every part thereof shall revert to said party of the first part and their heirs, * * *."
The possibility of reverter included in this covenant renders the title unmarketable. In view of the existence of statutes and ordinances which prohibit the maintenance of most of the objectionable structures enumerated in the deed, the ordinary covenant against nuisances has in recent years lost much of its force. Yet, even in populous cities, a blacksmith shop or a forge has not been wholly outlawed. The expression "any other occupation usually deemed * * * offensive" has been interpreted to include many which do not amount to a nuisance. (Rowland v.Miller,
The question in the case most closely litigated relates to the broker's duty to investigate the title. Both owner and broker acted in good faith; neither was aware of the covenant nearly a century in age. The established rule in this State does not impose any obligation upon the broker to become acquainted with the title. This broker performed its part of the agreement when it procured a purchaser ready to buy according to the terms offered in the owner's letter. In Smith v. Peyrot (
The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in the Appellate Division and in this court.
CARDOZO, Ch. J., POUND, ANDREWS, LEHMAN and KELLOGG, JJ., concur; CRANE, J., not sitting.
Judgment accordingly.