Clark v. Martin

• Decision Date: 22 March 1862
• Citation: 49 Pa. 289
• Court: Pennsylvania Supreme Court
• Parties: Clark <I>versus</I> Martin.

49 Pa. 289

Clark versus Martin.

Supreme Court of Pennsylvania.

March 22, 1862.

CERTIFICATE from Nisi Prius.

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S. C. and S. H. Perkins, for appellant.—The restriction must have been imposed for the benefit of the property now held by complainant. There is no other purpose for which it can be supposed it was intended. Complainant knew of its existence, was careful to be assured of his right to it before purchasing; and its advantage must have entered into the consideration he paid. Defendant never paid for its release or extinguishment. The general terms of the release of the ground-rent must be restricted by the recitals: Rapp v. Rapp, 6 Barr 48; Kirby v. Taylor, 6 Johns. Chanc. 251; Jackson v. Stackhouse, 6 Cowen 122; Cole v. Gibson, 1 Vesey, Sr. 504. It was the estate in the ground-rent alone which became merged; and even if it be conceded that the restriction is annexed to the estate in the rent it is not merged: Preston on Merger 454.

The clause imposing the restriction, notwithstanding the words "upon condition," is not necessarily to be treated as a condition. It is a covenant, or agreement; or, if not a covenant, creates an easement for the benefit of the adjoining property; and the only property which it adjoins is that now owned by complainant. A clause will never be construed as a condition when its language can be resolved into a covenant: Paschall v. Passmore, 15 P. S. R., 3 Harris 307. See also Cromwell's Case, 2 Co. 71 a; Touchstone, p. 122. Any words which import an agreement will make a covenant: 3 Com. Dig. 263, Covenant A. 2. And see Hoyt v. Carter, 19 Barb. S. C. Rep. 212. The complainant, even if unable to bring an action of covenant, is yet entitled to the aid of a court of equity to enforce the covenant or agreement made for the benefit of the estate which he now owns: Blecker v. Bingham, 3 Paige Ch. Rep. 246; Barrow v. Richard, 8 Id. 351; Bronwer v. Jones, 23 Barb. S. C. Rep. 153; Tulk v. Moxhay, 2 Phillips Ch. Rep. 774; Biddle v. Ash, 2 Ashmead 221; Mann v. Stephens, 15 Simons Ch. Rep. 377; Miller v. Hill, 3 Paige Ch. Rep. 254; Whatman v. Gibson, 9 Simons Ch. Rep. 196; Cole v. Sims, 23 Eng. Law & Eq. Rep. 584; Talmadge v. East River Bank, 2 Duer Rep. 614; Hodson v. Coppard, 7 Jur. N. S. 11.

The interference of equity may be justified on the ground of compelling specific execution of a contract: Scott v. Burton, 2 Ashmead 324; Barret v. Blagrave, 5 Vesey 555; Stuyvesant v. The Mayor, &c., of New York, 11 Paige Ch. Rep. 414; 1 Smith's Leading Cases, 5th Amer. edit., Hare & Wallace's Notes, p. 145.

The additional one foot in height allowed as a modification of the restriction, was not material; and in no way changes or affects the restriction, or the relative position of the properties; Duke of Bedford v. Trustees of the British Museum, 2 Myl. & K. 552; so as to render the interference of equity for its enforcement improper.

The defendant is estopped from denying the existence of the restriction just as he found it in force when he purchased the corner property. It is a case of estoppel in pais. Pickard v. Sears, 6 Ad. & El. 469; Gregg v. Wells, 9 Id. 97; Freeman v. Cooke, 2 Exch. Rep. 663; Hamilton v. Hamilton, 4 Barr 194; 2 Smith's Leading Cas., 5th Amer. edit. 649, 653; Waters' Appeal, 35 P. S. R., 11 Casey 523; Dezell v. Odell, 7 Hill N. Y. 219; Wood v. McGuire, 15 Georgia 202; McCravey v. Remson, 19 Alabama 430.

Thomas S. Smith and Wm. L. Hirst, for defendant.—The clause in the deed from Henry to Drosddorf and Roberts is a condition. It follows immediately after the grant without dependence on any other sentence of the deed; the words are the words of the grantor, and not of the grantees; and are compulsory on the grantees not to do an act: Co. Lit. 201 a. The condition is repugnant to the grant, and therefore void. Smith on Real and Personal Property 62; 2 Crabb's Law of Real Property 795, sec. 2132; Littleton, sec. 360; Co. Litt. 223 a; Bac. Abr. tit. Condition L.; Touchstone 131-2. There was a reservation of a ground-rent; and a covenant on the part of the grantor for quiet enjoyment so long as the grantees paid the ground-rent.

If not void, the condition was extinguished by the verbal permission given to Cash to build in disregard of it. Smith on Real and Personal Property 54; Touchstone 159; Goodright v. Davies, Cowp. 803; Dickey v. McCullough, 2 W. & S. 88. The grant by deed from Henry to Cash, was either an apportionment of the condition, or a release of the condition upon condition, and in either case the condition was wholly discharged. If an apportionment, 2 Crabb's Real Property, tit. Condition; Winter's Case, Dyer 309; 1 Inst. 215 a; Knight's Case, 5 Co. 55, 58; Touchstone 159; Dumpor's Case, 1 Smith's Lead. Cas. 15; 1 Roll. Abr. 471; Brummell v. McPherson, 14 Ves. 173; Co. Lit. 297 b, 215 a. If a release of condition upon condition, Co. Lit. 274 b.; Com. Dig. tit. Condition, A 8; 2 Crabb's Real Property 805.

If neither void nor released, the condition goes with the estate in the rent, and the rent being extinguished upon its purchase by the defendant, who owned the lot out of which it was reserved, the condition is also extinct by merger.

It was personal to the grantor. There is nothing in the line of complainant's title giving him the benefit of the restriction. Nor is there anything in the deed creating it, to show that it was intended for the benefit of the adjoining property.

There was no general plan of building and mutual agreement and obligation, as in Talmadge v. East River Bank, and Cole v. Sims. No specific appropriation of the condition for the benefit of complainant's property, as in Hills v. Miller.

The defendant is a purchaser without notice of any intended benefit to the adjoining property from the condition: Tulk v. Moxhay; Hills v. Miller; Hilner v. Imbre, 6 S. & R. 401; Frost v. Beekman, 1 Johns. Ch. Rep. 298.

The opinon of the court was delivered, March 22d 1862, by LOWRIE, C. J.

In 1814, Drosddorf and Roberts bought the corner lot from Alexander Henry subject to a perpetual rent, and with the condition written in this deed, that they, their heirs and assigns, should not erect any building on the back part of it higher than ten feet; Henry being then the owner of the lot adjoining on the south. The corner lot afterwards passed successively to five different owners, the last of whom is the defendant Martin, and in all the deeds the same condition is repeated; so that Martin himself in 1858 purchased on these express terms. Of the adjoining lot, Alexander Henry died seised, and in 1851, his testamentary trustee conveyed it to the plaintiff Clark; and the rent reserved on the corner lot by Henry was purchased by Martin in 1860. Our question is, has Clark as owner of the adjoining lot, any such right to the condition or terms imposed upon Martin's title as entitles him to claim in equity that Martin shall be compelled to observe them? We think he has.

In a proceeding in the common law form it would be necessary to inquire into the form in which the right is reserved, in order to decide whether it should be sued for as a condition, or a covenant, or as a simple contract; but in the equity form of proceeding we inquire only into its substantial elements; what duty does it assure, and to whom?

Here the duty of the defendant is so plain that one may read it running; it is clearly inscribed on every link of the chain of his title to the lot. He took his title expressly on the terms already briefly...