Caullett v. Stanley Stilwell & Sons, Inc.

• Decision Date: 21 April 1961
• Docket Number: No. A--18,A--18
• Citation: 67 N.J.Super. 111,170 A.2d 52
• Parties: Paul R. CAULLETT and Evelyn Caullett, Plaintiffs-Respondents, v. STANLEY STILWELL & SONS, INC., a corporation of the State of New Jersey, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 111

67 N.J.Super. 111

170 A.2d 52

Paul R. CAULLETT and Evelyn Caullett, Plaintiffs-Respondents, v. STANLEY STILWELL & SONS, INC., a corporation of the State of New Jersey, Defendant-Appellant.

No. A--18.

Superior Court of New Jersey, Appellate Division.

Argued March 27, 1961.

Decided April 21, 1961.

Carl Olsan, Keansburg, for appellant (Seymour R. Kleinberg, Keansburg, attorney; Carl Olsan, Keansburg, of counsel and on the brief).

Whitney Crowell, Red Bank, for respondents (Crowell & Crowell, Red Bank, attorneys).

Before Judges CONFORD, FREUND and KILKENNY.

The opinion of the court was delivered by

FREUND, J.A.D.

This is an action in the nature of a bill to quiet title to a parcel of land in the Township of Holmdel. Defendant appeals from the entry of summary judgment in favor of plaintiffs.

Defendant, a developer, by warranty deed conveyed the subject property, consisting of a lot approximately one acre in size, to the plaintiffs for a consideration of $4,000. The deed was delivered on January 13, 1959. Following the collapse of negotiations directed towards agreement on the construction by defendant of a dwelling on the transferred premises, the present suit was instituted.

The focal point of the action is a recital in the deed, inserted under the heading of 'covenants, agreements and restrictions,' to the effect that:

'(i) The grantors reserve the right to build or construct the original dwelling or building on said premises.'

The item is one of those designated in the instrument as 'covenants running with the land * * * (which) shall bind the purchasers, their heirs, executors, administrators and assigns.'

In support of their motion for summary judgment, plaintiffs set forth that no contract exists or ever did exist between the parties for the construction of a dwelling or building on the premises. The principal officer of the defendant corporation, in a countering affidavit, stated that one of the foremost considerations in fixing the price of the lot, and one of the primary conditions of the sale as it was effected, was the understanding that when the purchasers declared themselves ready and able to build, defendant would act as general contractor.

The trial judge held that the provision in question was unenforceable and should properly be stricken from the deed. He granted plaintiffs the relief demanded in their complaint, namely, an adjudication that: (1) defendant has no claim, right or interest in and to the lands by virtue of the clause in question; (2) defendant has no interest, right or cause of action against plaintiffs by virtue of the covenant; and (3) the clause in question is stricken from the deed and declared null, void and of no further force and effect.

The central issue argued on the appeal is whether the recital constitutes an enforceable covenant restricting the use of plaintiffs' land. Defendant urges that it comprises an ordinary property restriction, entered into for the benefit of the grantor and his retained lands. Plaintiff maintains that the clause is too vague to be capable of enforcement and that, in any event, it amounts to no more than a personal covenant which in no way affects or burdens the realty and has no place in an instrument establishing and delimiting the title to same.

While restrictive covenants are to be construed realistically in the light of the circumstances under which they were created, Javna v. D. J. Fredericks, Inc., 41 N.J.Super 353, 358, 125 A.2d 227 (App.Div.1956), counter considerations, favoring the free transferability of land, have produced the rule that incursions on the use of property will not be enforced unless their meaning is clear and free from doubt, Hammett v. Rosensohn, 46 N.J.Super. 527, 535--536, 135 A.2d 6 (App.Div.1957), affirmed 26 N.J. 415, 140 A.2d 377 (1958); Bruno v. Hanna, 63 N.J.Super. 282, 285, 164 A.2d 647 (App.Div.1960); Griscom v. Barcelonne, 90 N.J.Eq. 369, 107 A. 587 (Ch.1919); Grossman v. Abate, 19 N.J.Super. 516, 88 A.2d 658 (Ch.Div.1952). Thus, if the covenants or restrictions are vague or ambiguous, they should not be construed to impair the alienability of the subject property. For a concise and cogent discussion of the unenforceability of restrictive covenants because of vagueness, see Sutcliffe v. Eisele, 62 N.J.Eq. 222, 50 A. 69 (Ch.1901). Also see Fortesque v. Carroll, 76 N.J.Eq. 583, 75 A. 923 (E. & A. 1910); Newbery v. Barkalow, 75 N.J.Eq. 128, 133, 71 A. 752 (Ch.1909); Wilson v. Ocean Terrace Garden Apartments, Inc., 139 N.J.Eq. 376, 380, 51 A.2d 549 (Ch.1947).

Approached from a direction compatible with the constructional principles set forth above, it is clear that the deed item in question is incapable of enforcement and is therefore not restrictive of plaintiffs' title. The clause is descriptive of neither the type of structure to be built, the cost thereof, or the duration of the grantees' obligation. While it might conceivably have been intended to grant to defendant a right of first refusal on construction bids on the property, this is by no means its palpable design. What, for example, would be its effect were plaintiffs to erect a structure by their own hands?

It must be remembered that a restrictive covenant is in its inception a mere contract, subject to the interpretative doctrines of contract law which focus on the parties' mutual purpose. See 3 Williston, Contracts (rev. ed. 1936), § 620, pp. 1787--88, nn. 5 and 6. A purported contract so obscure that no one can be sure of its meaning is incapable of remedy at law or equity for its alleged breach, cf. Bethlehem Engineering Export Co. v. Christie, 105 F.2d 933 125 A.L.R. 1441 (2 Cir. 1939), and therefore cannot constitute a valid impediment to title.

Moreover, assuming Arguendo that the clause is sufficiently definite to give defendant a primary option to build whenever plaintiffs should decide to construct a dwelling or building on the premises, it still cannot operate either as a covenant running with the land at law, or as an equitable servitude enforceable against the original grantee and all successors, having notice, to his interest.

In the first place, it is clear to us that the item in question does not satisfy the primary requirement of covenants directly restrictive of title to land--that they 'touch and concern' the subject property. To constitute a real rather than a personal covenant, the promise must exercise direct influence on the occupation, use or enjoyment of the premises. It must be a promise 'respecting the use of the land,' that is, 'a use of identified land which is not merely casual and which is not merely an incident in the performance of the promise.' 5 Restatement, Property, Scope Note to Part III, pp. 3147--48 (1944). Furthermore, in the language of the Restatement:

'Even when the promise identifies a specific tract of land as the sphere of action contemplated by it, the use of the land may be so incidental in the performance of the promise, or the promised action may be of such a casual and temporary character, as to prevent the promise from being a 'promise respecting the use of land' * * *. The use of land involved must be a primary consideration of the undertaking of which the promise is a part and the promise must contemplate a degree of permanency in the particular use. * * * (T)he use of land involved is too casual to bring the promise of either party within the scope of promises respecting the use of land * * * (in the case of) a promise to permit the draining through the land of the promisor upon a single occasion of a pond upon the land of the promisee.' (Ibid., at pp. 3150--51).

In substantial accord with the Restatement analysis are Dunn v. Ryan, 82 N.J.Eq. 356, 88 A. 1025, 49 L.R.A.,N.S., 1015 (E. & A. 1913), and Butterhof v. Butterhof, 84 N.J.L. 285, 86 A. 394 (E. & A. 1913), holding that the breach of deed provisions, to the effect that the grantee would provide support and maintenance for the grantor during the latter's natural life, does not affect the fee conveyed but at most gives rise to an action for damages for failure to perform a collateral covenant.

Thus, to qualify as a covenant properly affecting the subject property, the deed provision must define in some measurable and reasonably permanent fashion the proscriptions of and limitations upon the uses to which the premises may be put. Typical provisions, some of them included in the deed of the parties herein, limit the property to residential purposes, provide minimum setback and acreage requirements, proscribe certain architectural forms, and limit the number of set the minimum cost of future dwellings to be constructed on the land.

The provision here in issue is not of the variety described above. It pertains to the use of plaintiffs' land only in the very incidental fashion that refusal to allow defendant to build the original structure would seemingly preclude plaintiffs from constructing at all. This is at best a personal arrangement between the two parties, designed to insure defendant a profit on the erection of a dwelling in return, allegedly, for a comparatively low sales price on the land. While there is nothing in our law precluding such an arrangement, as a contract Inter partes, this form of contract, contemplating a single personal service upon the property, does not affect the title. And the stipulation between the parties in their...