87 N.Y. 400, Phoenix Ins. Co. v. Continental Ins. Co.
| Docket Number | . |
| Citation | 87 N.Y. 400 |
| Date | 17 January 1882 |
| Parties | THE PHNIX INSURANCE COMPANY, Respondent, v. THE CONTINENTAL INSURANCE COMPANY, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
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Argued December 7, 1881.
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COUNSEL
William Allen Butler for appellant. Exceptions and restrictions in a deed are to be construed strictly against the grantor. (Duryea v. Mayor, 62 N.Y. 592, 596.) The covenant constituted a valid agreement between the grantor and
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grantee, and their respective successors in title, that the strip of land in question should not be built upon by the grantee and his successor in title, except upon payment by them of $1,500 to the grantor or his successors in title. (Clement v. Cash, 21 N.Y. 253; Cotheal v. Talmage, 9 Id. 551; Dunlop v. Gregory, 10 Id. 241; Bagly v. Peddie, 16 Id. 469; Dakin v. Williams, 17 Wend. 447; S. C., 22 Id. 201; Leggett v. M. L. Ins. Co., 53 N.Y. 394; Holmes v. Holmes, 11 Barb. 137; Reynolds v. Bridge, 6 El. & Bl. 528.)The plaintiff having an adequate remedy at law in case of the violation of the covenant for the stipulated sum agreed upon as the measure of damage therefor, was not entitled to the aid of a court of equity to give effect to the first clause of the covenant in disregard of the second clause, which was entitled to equal weight with the first. (Woodward v. Gyles, 2 Vern. 119; Skinner v. White, 17 Johns. 357,369; Carnes v. Nesbitt, 7 H. & N. 160; S. C., Id. 778, 781, 782; Sainter v. Ferguson, 1 McN. & G. 286; Vincent v. King, 13 How. Pr. 234; Barnes v. McAllister, 18 Id. 534; Nessle v. Reese, 29 Id. 382, 383; French v. Macale, 2 D. & W. 269; Long v. Bowring, 33 Beav. 585; Dooley v. Watson, 1 Gray, 414; Howard v. Hopkins, 2 Atk. 371; Clarke v. Mason, 1 Denio, 516; Hardy v. Martin, 1 Cox, 64, note; Chase v. Allen, 13 Gray, 42; Leary v. Lafflin, 101 Mass. 344; Linde v. Thompson, 2 Allen, 456; Mundy v. Culver, 18 Barb. 336; Lea v. Whitaker, L. R., 8 C. P. 70; 2 Vern. 119; 1 McN. & G. 286; 7 H. & N. 778; 14 Ves. 468; 13 How. Pr. 234; 18 Id.534; 29 Id. 382; French v. McCale, 2 D. & W. 279, 284; City of London v. Pugh, 4 Bro. Par. Cas. 395; 2 Story's Eq. Jur. [[12th ed.], § 1318; Cushing v. Drew, 97 Mass. 445; Clement v. Cash, 21 N.Y. 253, 256, 257.) The covenant in question not being made a condition of the grant, and containing no words of re-entry or forfeiture, and being strictly inter partes, no rights of neighboring owners or of the public being affected by it, operated simply as a continuing agreement, binding upon the parties to it, and upon their respective successors in title. (Gilbert v. Peteler, 38 N.Y. 165; Trustees v. Lynch, 70 Id. 440.) If an easement was created in, or a servitude impressed
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upon the strip of land in question by the covenant under consideration, no user was necessary to strengthen it, or give it validity. (Child v. Chappell, 9 N.Y. 246, 256; Brouwer v. Jones, 23 Barb. 153; Barrow v. Richard, 8 Paige, 351.)
Samuel Hand for respondent. The covenant of Smith, in the deed of Howland to him, bound him and the defendant as his assignee, in favor of the plaintiff as assignee of Howland's other land, in favor of which the covenant was made. (Atlantic Dock v. Leavitt, 54 N.Y. 35; Trustees of Watertown v. Cowen, 4 Paige, 510; Roberts v. Levy, 3 Abb. [ N. S.] 311; Co. Litt. 230, Butler's note 1.) Even if the covenant did not run with the land, and the plaintiff could have no action at law upon it, yet equity would intervene in his favor to restrain its violation, especially when the defendant, as in this case, has notice of the covenant, and his deed is expressly subject to it. (Atlantic Dock v. Leavitt 54 N.Y. 35; Trustees of Col. College v. Lynch, 70 Id. 440; Clark v. Martin, 49 Penn. St. 296; Mann v. Stephens, 15 Simons, 377; Whatman v. Gibson, 9 Id. 196; High on Injunc. [ 2d. ed.], § 851; Washburn on Real Prop. 285.) The covenant created a permanent negative easement for the benefit of the adjoining land, and a servitude upon the land conveyed to Smith. This was an easement appurtenant to the plaintiff's premises, and passed as an appurtenance to the land. (5 Seld. 255; Trustees of Watertown v. Cowen, 4 Paige, 510; Hills v. Miller, 3 Id. 254; Gilbert v. Peteler, 38 Barb. 488; S. C., 38 N.Y. 168; Brower v. Jones, 23 Barb. 153, 160; Tulk v. Moshay, 2 Phillips, 774; S. C., 11 Beav. 571; Barrow v. Richards, 8 Paige, 351; Roberts v. Levy, 3 Abb. [ N. S.] 311; Mann v. Stephens, 15 Simons, 377; Schwoerer v. Boylston Market, 99 Mass. 285; 2 Sugden on Vendors [14th Am. Ed.], 266.) Whether a clause gives any option to the covenantor to either pay the amount of liquidated damages, or conform to the covenant, or is an absolute covenant not to do the act, is a question of intention, to be gathered from the language and surrounding circumstances. (Chilliner v. Chilliner, 2 Ves. Sr. 528;
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Hoag v. McGinnis, 22 Wend. 163; Hosmer v. True, 19 Barb. 106; Staples v. Partin, 4 Id. 648; Peachy v. Somerset, 2 Lead. Cas. in Eq., Hare's note, 472; High on Injunc., § § 722, 723; Coles v. Sims, 5 De Gex, M. & G. 1; Dike v. Greene, 4 R. I. 286; 2 Story's Eq. Jur., § § 717, 923.) Where the main object to be attained is the prohibition of an act by covenant of a party not to do it, the fact that this is further secured by a stipulation, that if the covenant is violated, the covenantee may have a stipulated sum for damages, does not give an option to the covenantor to observe the covenant, or pay the sum to the covenantee. (Chilliner v. Chilliner, 2 Ves. Sen. 528; Gray v. Crosby, 18 Johns. 218, 219; French v. Macale, 2 D. & War. 269; Coles v. Sims, 5 De G., M. & G. 1; S. C., 1 Kay, 56; Stuyvesant v. The Mayor, etc., 11 Paige, 430; Parsons on Cont. 356, note q.; Clark v. Jones, 1 Denio, 516; Fonblanque's Eq. [ 4th Am. ed.] 130; Bird v. Lake, 1 H. & M. 111; Howard v. Hopkins, 2 Atk. 371; Fox v. Scard, 33 Beav. 327; Dike v. Greene, 4 R. I. 286; Dooley v. Watson, 1 Gray, 416; Pearson v. Williams, 24 Wend. 244; Gordon v. Broom, 4 Ired. Eq. 399; Story's Eq. Jur., § § 717, 927; Fonblanque's Eq. [ 4th Am. ed.] 130; High on Injunc., § § 722, 723.)
ANDREWS, CH. J.
In the deed from Howland and wife, to Smith, of the premises now owned by the defendant, the grantee, covenanted, for himself, his executors, administrators and assigns, with the grantors, their executors, administrators and assigns, not to...
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