Cheatham v. Taylor

• Decision Date: 16 June 1927
• Citation: 148 Va. 26
• Parties: CHEATHAM v. TAYLOR, ETC.
• Court: Virginia Supreme Court

Page 26

148 Va. 26

CHEATHAM v. TAYLOR, ETC.

Supreme Court of Virginia, Wytheville.

June 16, 1927.

1. BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS — Privity — Case at Bar. — The instant case was a petition for appeal from a decree ordering appellant to comply with a building restriction that no house should be built on appellant's property the front line of which should be nearer than twenty feet to the line of the street. Both appellant and complainants purchased their lots abutting on the street from a land company and the deeds from the land company contained the restriction. Appellant contended that there was no privity of contract or obligation between complainants and appellant, that the covenant in the deeds was a mere personal covenant between the grantor and the grantees.

Held: That it was not necessary, in order to sustain the equitable remedy, that there should be any privity of either estate or contract, if it clearly appears that the restriction was created for the benefit of the complainants among others, or their grantor, and that the defendant had notice, actual or constructive, of the restriction.

2. BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS — Third Persons not Parties to the Instrument — Question of Intention. — Whether or not third persons, not parties to the instrument, are within its purview, is one of intention, and this intention may appear either from the instrument alone, or from the instrument with the aid of the surrounding facts and circumstances. 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.

3. BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS — Privity — Suit By Party Intended to be Benefited — Doctrine of Tulk Moxhay. — When, on a transfer of land, there is a covenant or even an informal contract or understanding that certain restrictions in the use of the land conveyed shall be observed, the restrictions will be enforced by equity, at the suit of the party or parties intended to be benefited thereby, against any subsequent owner of the land except a purchaser for value without notice of the agreement. Although the principal purposes of such agreements are to regulate the style and costs of buildings, to restrict their location to certain distances from the street and to residential purposes, the principle of the doctrine of Tulk Moxhay is applicable to other kinds of restrictions on the use of land, and equitable easements are created for many miscellaneous purposes.

4. BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS — Petition for Whose Benefit Made — Intervention of Court of Equity — Prevention of Third Persons Violating the Equitable Rights of Others — Notice. — It was found from experience that the common law doctrines of easements and servitudes, and of covenants running with the land, were too narrow in their application, and left many substantial rights unprotected, and so courts of equity have intervened for the protection of such rights, making the intention of the parties the criterion of the existence of the right, and, when found to exist, enforcing it whether created by covenant or by simple contract. The equity is the prevention of a third person from violating the equitable rights of another of which he has notice, actual or constructive. In the establishment of the right, the intention of the parties is of great importance, but when once established no notice is necessary except of the existence of the right, and this notice may be actual or constructive.

5. BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS — Enforcement in Equity — Privity — Injunction — Persons Who May Enforce Restrictive Agreements — Intention. — Equity will enforce restrictive covenants against takers with notice of the servient tenement; privity is not necessary to entitle the injured party to sue; the proper method to protect and enforce the covenant is by injunction; the right to enjoin is not dependent upon the existence of a right of action at law; the right of a third person to the protection of the covenant is an equitable right by whatever name called; and the determination of the person who is entitled to sue is dependent on the intention of the parties to the covenant as disclosed by the language of the covenant, and the facts and circumstances surrounding its execution.

6. BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS — Reasonableness — Injunction — When Granted — Conscience of the Court — Changed Conditions. — An injunction to enforce a building restriction or restrictive agreement is addressed to the conscience of the court and will not be granted where it would be unfair and inequitable to do so, as where a residential section has become a business section and the enforcement of the covenant would be of little benefit to the covenantee, but cause serious pecuniary loss to the covenantor or his assigns, nor where it is contrary to public policy, as an undue restraint of trade. The contract to be enforceable must be reasonable.

7. BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS — Enforcement in Equity — Persons Not Parties to the Instrument. — Court of equity will enforce restrictive covenants in conveyances of real estate where the intention of the parties is clear in creating them, and the restrictions are reasonable. And the covenant will be enforced at the instance of "persons who are not parties to the instrument containing the restrictions."

8. BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS — Burden of Proof — Uniform Scheme of Development. — While the burden of proof is on the person claiming the benefit of the restriction, it is said that if a uniform scheme of development of improvement is proved to have been the intention of the parties, equity will carry it out at the suit of any of the lot holders; provided, of course, he has not by his own conduct shut the doors of the court.

9. COVENANTS — Covenant Running with the Land — Third Persons — Building Restrictions — Case at Bar. — Covenants running with the land create personal rights and obligations in third persons not parties to the covenants, and are usually made for that purpose. In the instant case, whether the covenant be strictly a covenant running with the land or not, in a purely technical sense, it was an agreement that the lot purchased should at all times stand bound by the restrictive provision. It was part of the contract of grantee, the appellant, and even upon the theory that his contract of purchase was the sole measure of his obligation to respect the rights of other purchasers of lots, his lot was bound, into whosesoever hands in might pass, by the restrictive covenant that a house on the lot should not be nearer the street than twenty feet.

10. APPEAL AND ERROR — Assignments of Error — Errors not Assigned will Not be Considered — Case at Bar. — The instant case was an appeal from a decree ordering appellant to comply with the terms of a building restriction. The lots of appellees were conveyed by common grantor previously to the lot of appellant. The question has been raised in some jurisdictions as to the right of the first purchaser to enforce the restrictive covenant contained in the deed of the second purchaser. But no such assignment of error was made in the petition in the instant case, and, under repeated decisions of the Supreme Court of Appeals, errors not assigned in the petition will not be considered.

11. BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS — Notice of Restrictive Agreement — Case at Bar. — The instant case was a suit for injunction by complainants against defendant to enforce a building line restriction. Defendant contended that the suit could not be maintained because he had no notice of the rights claimed by the complainants in their bill. Complainants' lots and defendant's lot had been purchased from a land company. A resolution of a board of directors of the company establishing the building line and advertisements for the company setting out this building line were not recorded and the recorded map did not show any building line restriction.

Held: That while it would have been better if the recorded map had shown the building line or if the deeds to the earlier grantees had contained a covenant by the grantor that like restrictions would be placed on subsequent grantees, these provisions were not essential prerequisites that the same result was otherwise accomplished. When the common grantor made the earlier conveyances, there was an implied promise on its part, especially in view of the resolution of its board of directors and advertisement, that the entire property covered by the resolution should be subject to the restriction, and for a violation of this promise it could have been enjoined by a purchaser of one of the lots. An equity attached to the lots sold which the common grantor could neither violate nor alienate to a purchaser with notice.

12. BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS — Notice of Restrictive Agreement — Case at Bar. — In the instant case, an injunction to enforce a building line restriction, appellant had constructive notice that a building plan was laid out by the recorded map.

Held: That the right to build nearer the street than the building line was never conveyed to him.

13. COVENANTS — Covenant for the Benefit of Third Persons — Enforcement by Third Persons. — Where a covenant is for the benefit of third persons they have the right to enforce it in their own names, under section 5143 of the Code of 1919, independent of the equitable doctrine of Tulk Moxhay, but in the instant case a suit to enjoin one from the breach of a building line restriction, the court relied on both the statute, Code of 1919, section 5143, and the equitable doctrine of Tulk Moxhay.

14. BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS — ...