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serenty-six feet in width, that is, eight feet on both sides wider than the original street, was perfectly consistent with an intention on the part of Davis to appropriate these strips of eight feet in width, on both sides of the original street, to the private use of the occupiers of the lots on both sides of the street; and the case shows that these strips of eight feet on each side have been enclosed in court-yards, with iron railings. The judge who tried the case at Special Term did not find as a fact that these strips of eight feet in width had been used by the public. There is no fact found, or admitted by the pleadings, from which an acceptance by the public of any intended dedication can be inferred. It appears to me plain, then, that the judgment in this case cannot be affirmed on the ground of dedication.
But I think the action could be maintained, and that the judgment below can be affirmed, on another principle.
From the facts found by the judge at Special Term, it appears that when the plaintiff Maxwell and others bought lots in St. Mark’s Place of Davis, they were shown the map or plan of St. Mark's Place, showing that the houses on both sides of the place were to be set back eight feet from the street, and that they bought on the assurance of Davis that that plan should be observed in building on the Place ; that the strips of eight feet in width on both sides of the street should not be built upon, but kept open. It is to be presumed that they would not bare bought and paid their money except upon this assurance.
It is to be presumed that, relying upon this assurance, they paid a larger price for the lots than otherwise they would have paid. Selling and conveying the lots under such circumstances and with such assurances, though verbal, bound Davis in equity and good conscience to use and di spose of all the remaining lots so that the assurances upon which Haswell and others had bought their lots would be kept or fulfilled. This equity attached to the remaining lots, so that any one subsequently purchasing from Davis any one or more of the remaining lots, with notice of the equity as between Davis and Maxwell and others, the prior purchasers, would not stand in a different situation from Davis,
In Tulk v. Mochay, 11 Beav. 571, a covenant by the grantee of a piece of land to use it as a private square was enforced against a pura chaser from the grantee with notice. The Lord Chancellor said the question was, not " whether the covenant ran with the land, but whether a party shall be permitted to use the land inconsistently with the contract entered into by his vendor, and with notice of which he purchased.” He then states this principle as an answer to the ques. tion; “ If an equity attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased." See also Patching v. Dobbins, Kay, 1; Coles v. Sims, Ia. 56; Rankin v. Huskinson, 4 Sim. 13; Whatman v. Gibson, 9 Id. 196 ; Schreiber v. Creed, 10 Id. 9: In Hiu v. Miller, 3 Paige,
254, where M. had purchased land in a
but would be bound by that equity;
village adjoining a public street, and it was at the same time agreed between him and the vendor that a triangular piece of ground belonging to the vendor on the opposite side of the street should never be built upon, but should be deemed public property ; and the vendor executed to M. a deed of the land sold, and a bond for the performance of the agreement as to the triangular piece of land, both instruments being duly proved and recorded ; and H. afterwards purchased of M. the land opposite the triangular piece, after being informed by him of the privilege secured by the bond, it was held, that H. was entitled to the benefit of the easement, and that M. could not, without his consent, be permitted to make a new arrangement with the holders of the legal estate in the triangular piece of land, by which buildings should be erected thereon.
In Barrow v. Richard, 8 Paige, 351, where the owner of a block of ground in the city of New York divided it into lots, and sold the lots from time to time to different individuals, and the conveyances of the lots contained mutual covenants between the grantor and grantees respectively against the erection of any livery stable, slaughter house, glue factory, &c., upon any part of the lots conveyed, or the carrying on of any manufactory, trade or business, which might be in any wise offensive to the neighboring inhabitants ; it was held that the covenants in the deeds of the different lots were for the mutual benefit of all the purchasers of lots on the block; and that, although a previons purchaser from the owner of the block could not sue at law upon the corenant in the deed to a subsequent purchaser, the Court of Chancery might protect him by injunction against the carrying on of any noxious business or trade upon the lot of such subsequent purchaser.
The plaintiff, Maxwell, in the principal case, bought two of the lots on St. Mark's Place, on which first-class dwelling-houses had been erected by Davis, according to the map or plan of St. Mark's Place, made and exhibited by him (the houses being set back eight feet from the street), on the 13th day of January, 1832, that being the date of Maxwell's deed. The facts found by the judge at Special Term, and the facts admitted by the pleadings, show that these lots were bought by Maxwell upon the assurance or agreement of Davis that all the houses on the Place, as shown on the map, were to be set back eight feet from the street, leaving the open space betwen the houses seventy-sis feet in width.
The judge at Special Term found that on the 11th of October, 1832, Davis conveyed to Moses Henriques two lots on Third Avenue, at the northeast corner of Third Avenue and Eighth Street (the strip of land of eight feet in width, which it was the object of this suit to restrain the defendant from building on, being a part of the northeast corner lot), and a lot on Eighth Street, next easterly of the corner lots ; that this deed was in the nature of a mortgage to secure the firm of Josephs & Co., of which Henriques was a member, for money loaned bị the firm to Davis, Davis still retaining the right to dispose of the property.
accounting to them for the same when sold; that on the 13th of Feb. ruary, 1833, Davis negotiated a sale of these lots to Edmund Wilkes, who on that day received a deed from Henriques and wife for the lots ; that at the time Davis sold these lots to Wilkes, he showed Wilkes the diagram of the Place, and declared his intention to set the building back eight feet from the original line of the street; that when Wilkes built the corner building now owned by the defendant, and also two other houses east of it, he erected them all on the line designated by Davis, and in conformity with the line of the other buildings previously erected by Davis on that street, carrying out the plan which Davis had previously formed of making St. Mark's Place a uniform street or Place of seventy-six feet in width.
The defendant holds through several mesne conveyances from Wilkes. The defendant bought with notice that it was claimed that there were restrictions which would prevent the defendant from acquiring a right, as purchaser of the lots, to build upon the eight feet described as a court-yard. The uniformity of the position of all the houses on St. Mark's Place was probably sufficient alone to put the defendant on
It is probable that the equity arising from the circumstances and assurances under which the lots were sold and conveyed by Davis, was mutual, as between him and his grantees respectively ; and hence, that it would be easy to show that the equity was mutual as between his grantees, without regard to priority of conveyances, so that the equity would or might exist in favor of a subsequent grantee against a prior grantee, as well as in favor of a prior grantee against a subsequent grantee; but it is unnecessary in this case to examine or decide that
The judgment of the Superior Court should be affirmed, with costs, on the ground of the equity in favor of the plaintiffs, as prior grantees, arising from the circumstances and assurances under which they took their conveyances and paid their money ; which equity attaches to the remaining lots, and can and ought to be enforced against the defendant, taking with notice, or under circumstances equivalent to notice, of the SELDEN, J., did not sit in the case ; all the other judges concurring.
equity in favor of the plaintiffs.
WINFIELD v. HENNING.
NEW JERSEY COURT OF CHANCERY. 1870.
(Reported 6 C. E. Green, 188.)
THE CHANCELLOR. The complainant owns a house and lot on the south side of South Fifth Street, formerly called also Gilbert Street, in Jersey City. The defendant owns a house and lot adjoining it on the west, and on the corner of South Fifth Street and Coles Street. These lots are part of a tract of one hundred feet square, at the southeast corner of Coles Street and South Fifth Street, which was conveyed by the devisees of John B. Coles to Keeney and Wheeler, on the first of May, 1854. In the deed the premises were designated by numbers, as four lots fronting on South Fifth or Gilbert Street, and the deed contained this provision : “ It being expressly understood and agreed that the houses which may be erected on Gilbert Street shall be set back ten feet from the southerly line of said street."
In May, 1857, Keeney conveyed his interest in this tract to Wheeler, who afterwards erected on it five two-story houses of twenty-feet front on South Fifth Street, ten feet from the south line of the street. After they were built, in May, 1858, he conveyed the house and lot of the complainant to a grantee, through whom the complainant derives title ; and one year after this he conveyed the house and lot of the defendant to a grantee, through whom the defendant claims title. The stipulation as to the placing houses ten feet from the street, is not contained in any deed after that to Keeney and Wheeler. The grantors in that deed owned a large number of lots in the vicinity, some of which were on the opposite side of the street, and retained them after the deed to Keeney and Wheeler.
The defendant, in May, 1870, commenced erecting an addition to the dwelling-house on his lot, which would occupy the ten feet between it and the street, by which the westerly view or prospect from the front of the complainant's house is cut off. The injunction restrains the defendant from proceeding with or completing that building.
The two questions in the case are, whether the defendant is bound by the stipulation or covenant in the deed from the Coles family, and if he is, whether the complainant has any right to compel its performance
. The provision or covenant in the deed is not like that in Spencer's Case, 5 Rep. 16, as was urged on the argument. It does not relate to
something collateral to the land, but to the land conveyed itself. In that case the covenant was to erect a brick wall on an adjoining lot. Nor does it relate to a thing not in esse, as a wall to be built; but it relates to the ten feet of the tract next to the street, and the negative stipulation not to erect houses on that is, in its legal effect, to keep it free from buildings; this is the only legal effect of the covenant; it does not oblige the grantees or their assigns to erect buildings at that distance, or to erect any houses at all.
The stipulation names no one as bound, neither the grantees, their heirs or assigns, but it is annexed to the land and the grant of it, and must therefore be co-extensive with the estate granted , which is to them, their heirs and assigns. In a'suit by the grantors there would be no question but that this stipulation would be enforced against any owner of this tract, or any part of it, who derived his title through this deed.
The question whether the complainant is entitled to enforce this stipulation, is not so clear. If any purchaser of the other lots retained by the Coles family at the giving of this deed, and injured by this erection, was the complainant, the authorities are numerous and decided that he would be entitled to the benefit of this stipulation. Tulk v. Moxhay, 11 Beav. 571; s. c. 2 Phil. 774; Barron v. Richard, 3 Edw. Ch. 96; Hills v. Miller, 3 Paige, 254.
But in this case both parties derive title from the covenantors, and not from the covenantee; and the question is, whether they are bound to each other by the covenants which Wheeler entered into with the Coles family, for the benefit of the property which they retained.
An action at law could not be maintained by the complainant against the
But in equity their position is different. Both parties are bound to the grantors in the Coles deed to keep this front free from buildings; each is subject to the easement over his lot, in favor of those subsequently deriving title from Coles, and each is equitably and justly entitled to the advantage which the observance of this stipulation by his neighbor may be to him. If all were relieved from the incumbrance, none perhaps could complain. But to be restrained from extending his own building to the street, and to have his neighbor on each side project in front of him, would be a much greater grievance to any of these lot owners than was contained in the stipulation in the deed through which he derived title ; and he has no power to compel the grantors to enforce the covenant. It seems equitable that this court should, at his instance, compel the observance of this covenant. This view is supported by the dictum of Lord Romilly in a case heard before him at the Rolls, in 1866, Western v. Macdermott, 1. Eq. Cas. L. R. 507; and by a decision of the Supreme Court of Rhode Island, Greene v. Creighton, 7 R. I. R. 1.
This easement was in existence at the time of the conveyance of the coznplainant's lot by Wheeler, who still retained the lot of the defendan t, which was the dominant tenement; and this space being left open
defendant on such covenant.