Wiegman v. Kusel

• Decision Date: 22 December 1915
• Docket Number: No. 10291.,10291.
• Citation: 110 N.E. 884,270 Ill. 520
• Parties: WIEGMAN et al. v. KUSEL et al.
• Court: Illinois Supreme Court

270 Ill. 520

110 N.E. 884

WIEGMAN et al.

v.KUSEL et al.

No. 10291.

Supreme Court of Illinois.

Dec. 22, 1915.

Error to Superior Court, Cook County; Denis E. Sullivan, Judge.

Bill in equity by Herman H. Wiegman and others against Charles H. Kusel and others. The bill was dismissed, and plaintiffs bring error. Reversed and remanded, with directions.Anderson E. Martin and Alvah T. Martin, both of Chicago (Newton Wyeth, of Chicago, of counsel), for plaintiffs in error.

Julius Stern, of Chicago, for defendants in error.

CARTER, J.

Plaintiffs in error filed in the superior court of Cook county a bill for injunction to restrain defendants in error from erecting a building on certain lots, on the ground that the said action would be in violation of restrictions as to a building line. Defendants in error answered, and a hearing was had before the court, and a decree entered finding in favor of defendants in error; the bill being dismissed. From that decree this writ of error was sued out.

The stipulation of facts in the record shows that the lots in question face north on West Monroe street, between Forty-Seventh and Forth-Eighth avenues. They are a part of Hobart's subdivision, platted in 1874. The plat contains no building line restrictions as to said lots. Twenty-four lots, all in the north half of block 3 and including those owned by the parties to this proceeding, belonged to Davenport Galbraith in 1888. E. A. Cummings & Co. were then acting as the agents of said Galbraith, and sole all of said 24 lots to various purchasers during 1888 and the years immediately following. Plaintiff in error Wiegman at that time purchased lot 21 and the east 9 feet of lot 22. His deed, and each of the deeds to the other 23 lots from Galbraith, contained the following provision:

‘This deed is granted upon the express condition and stipulation that no building be erected upon said above-described premises prior to January 1, 1898, costing less than $2,000, the necessary outbuildings of any residence excepted. Said second party also agrees not to build within 30 feet of the north line of said premises.’

Most, if not all, of these lots were sold at an auction sale conducted for the owner by said E. A. Cummings & Co., which latter firm had prepared maps and descriptive literature, in which was stated, among other things, ‘Building line 30 feet back from street.’ The abstract of title covering the lots of defendants in error includes a copy of the building restriction as contained in the deed above mentioned. The lots of defendants in error were originally conveyed to other parties, the deeds containing said restriction. Said lots were afterward repurchased by Galbraith, and were later by him conveyed to another party by deeds containing no reference to the building restriction. Thereafter defendants in error purchased these lots from the grantees of Galbraith.

The principal question in this case is whether, under the circumstances shown here, defendants in error were bound by the building line restriction in the original deeds. Where there was a general plan or scheme made for the benefit of each purchaser at the time of the purchase, such plan has been enforced between grantees where lots were sold and agreements made with each purchaser as to the building line. We have held that the inference is that the agreements were intended for the common benefit of all the purchasers. That intention is manifested by the character of the transaction, and each may enforce the restrictive agreement against each of the others. Hays v. St. Paul M. E. Church, 196 Ill. 633, 63 N. E. 1040; Childs v. Douglas, 5 De G., M. & G. 739; Clark v. McGee, 159 Ill. 518, 42 N. E. 965;Sharp v. Ropes, 110 Mass. 381; Whatman v. Gibson, 9 Sim. Ch. 196.

[1] Counsel for defendants in error contends that the agreement in each deed was personal to the parties and was not a covenant running with the land; that while the original grantee of the deed was bound by it his grantees would not be. The decision of this question does not depend upon whether the covenant runs with the land. In the leading case of Tulk v. Moxhay, 2 Phill. Ch. 774, this question is discussed at length. It was there said (page 776):

‘It is now contended, not that the vendee could violate that contract, but that he might sell the piece of land, and that the purchaser from him may violate it without this court having any power to interfere. It that were so, it would be impossible for an owner of land to sell part of it without incurring the risk of rendering what he retains worthless. It is said that, the covenant being one which does not run with the land, this court cannot enforce it; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor and with notice of which he purchased. Of course, the price would be affected by the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price in consideration of the assignee being allowed to escape from the liability which he had himself undertaken. That the question does not depend upon whether the covenant runs with the land is evident from this: That if there was a mere agreement, and no covenant, this court would enforce it against a party purchasing with notice of it, for if an equity is 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.’

This doctrine as here laid down has been quoted with approval by this court in Frye v. Partridge, 82 Ill. 267. The right to enforce this restriction upon the use of the land is based, not upon the agreement made by the subsequent purchaser, but upon the theory that each purchaser buying a lot with notice of a general plan of improvement impliedly assents thereto and can be compelled to comply therewith at the suit of the owner of any other lot, without reference to the order in which the lots were sold. Parker v. Nightingale, 6 Allen (Mass.) 341, 83 Am. Dec. 632; 1 Tiffany on Real Prop. § 352. An owner has a right to sell his property upon such terms and conditions as he may think proper, and if the terms are accepted by the grantee and are not objectionable in law they will...