Coudert v. Sayre

• Decision Date: 04 January 1890
• Citation: 19 A. 190,46 N.J.E. 386
• Parties: COUDERT v. SAYRE.
• Court: New Jersey Court of Chancery

19 A. 190

46 N.J.E. 386

COUDERT

v. SAYRE.

Court of Chancery of New Jersey.

Jan. 4, 1890.

(Syllabus by the Court.)

On final hearing on bill and answer, and proofs taken in open court.

Robert L. Lawrence, for complainant. Thomas N. McCarter, for defendant.

VAN FLEET, V. C. The case which the complainant lays before the court as the foundation for the relief he seeks is one of extreme novelty. Stated generally, it must be said that the complainant is before the court asking to be relieved, as against the defendant, from the obligation of a covenant which he made voluntarily, fully understanding what he was doing, entirely uninfluenced by fraud, and without the least mixture of accident or mistake. To present his case so that it may be easily understood, it will be necessary to state the facts out of which it arises somewhat in detail.

The covenant which the complainant asks to have nullified is contained in a deed made by John G. Vose and wife to the complainant, bearing date the 15th day of May, 1867. The deed conveys four acres of land. The land is described in the deed as "being part of the estate called 'Montrose,'"the different parts of which, the deed says, were conveyed to Mr. Vose by 10 different conveyances, the dates of which, together with the names of the grantors and the dates and places of registry, are all recited. Immediately following the description of the land conveyed, the deed says the premises conveyed by it are shown on the map of Montrose, dated January 1, 1867, which is filed in the office of the register of Essex county, and consist of a portion of lot No. 16 on said map. By this deed the complainant, for himself, his heirs, and assigns, covenanted with his grantor, his heirs and assigns, that the land conveyed by the deed should not at any time thereafter be used or occupied for the erection or maintenance of any slaughter-house. The covenant then designates by name almost every kind of building which may be used for trade or manufacture, and then says, "or for any other purpose whatsoever which can or may be unwholesome or offensive to the neighboring inhabitants, or for the erection of any buildings of any kind or description, excepting one dwelling-house, with the appropriate gardener's cottage." The covenant then designates a number of other buildings, and concludes with these words: "And other buildings and offices appropriate for a gentleman's country residence." The complainant further covenanted for himself, his heirs and assigns, that the covenant he had just made, restricting the uses to which the land conveyed to him could be appropriated, should attach to the land, and run with its title, and that the covenant should be inserted in all future conveyances and other instruments whereby the title to his land should be transferred or affected, and that the covenant should forever thereafter be recognized, sustained, and upheld, and that it should not only be lawful for the complainant's grantor, his legal representatives or assigns, but also for the owner or owners of any of the property mentioned in the deeds thereinbefore recited,—meaning the 10 deeds by which the land called the "Montrose Estate" had been conveyed to the complainant's grantor,—to institute and prosecute any suit or proceeding, at law or in equity, for a violation, or threatened violation, of the covenant; it being understood, as the covenant declares, that the covenant should not be enforced personally against the complainant unless he was the owner of land to which it related, when its violation was threatened or committed.

These are the restrictions which the complainant voluntarily consented should be put upon the uses to which the land conveyed to him might be appropriated when he accepted its title. It is not claimed or pretended that the deed to him does not in every respect conform precisely to his contract of purchase, and give him just such a title as by his contract he was entitled to receive; nor is it pretended that the deed puts a single restriction on the use of the land which the complainant did not deliberately agree to by his contract of purchase. Hence, in the discussion of this case, it must be regarded as a fact entirely free from dispute that every fetter or restriction which these covenants place upon the land in question was placed there with the complainant's full consent, and, in addition, that he bargained for a title thus clogged, and only paid such price for the land as he believed it to be fairly worth, subject to a perpetual restriction as to the purposes for which it could be used. There can be no doubt that the dominion which the law gives every landowner over his land, who owns it in fee, invests him with good right and full power, when he conveys a part, to impose such limitations upon its use as will prevent his grantee, and those claiming under him, from making such use of the part conveyed as may impair or diminish the value of the part which he retains. As was said by Mr. Justice BIGELOW, afterwards chief justice of the supreme court of Massachusetts, in Whitney v. Railway Co., 11 Gray, 359-363: "Every owner of real property has the right so to deal with it as to restrain its use by his grantees within such limits as to prevent its appropriation to purposes which will impair the value, or diminish the pleasure of the enjoyment, of the land which he retains. The only restriction on this right is that it shall be exercised reasonably, with a due regard to public policy, and without creating any unlawful restraint of trade."

So far nothing has been said respecting the defendant's position in the case. His connection with the complainant arose in this way: The complainant's grantor, on the 1st day of June, 1868, conveyed to Samuel Schoch two tracts adjoining the four acres conveyed to the complainant the previous year. These two tracts lie adjacent to each other, and form one body. One of the tracts contains 1 75-100 acres, and the other, 1 59-100 acres. The deed to Mr. Schoch states that these two tracts are shown as lots Nos. 9 and 10 on a map of property at Montrose, dated April, 1868, and filed in the office of the register of Essex county. They were conveyed subject to a restriction, respecting the uses to which they could be appropriated, precisely similar to that contained in the deed to the complainant, except that their owner has a right to erect two dwellings, such as would be suitable for a gentleman's country residence, on each tract. These two tracts were on the 23d day of October, 1877, conveyed by Mr. Schoch to the defendant, who, soon after his purchase, expended in the erection of a large and handsome dwelling, and other buildings, and in improving and beautifying the whole surface of the tracts, over $35,000. The proofs show that the defendant made his purchase after he had examined the complainant's deed. The defendant swears that the complainant's covenant restricting the uses to which his land could be appropriated operated as a strong inducement to him to purchase. It was by means of the conveyances from the complainant's grantor to Mr. Schoch, and from Mr. Schoch to the defendant, that the defendant has acquired whatever right he now has to the benefit of the complainant's covenant.

The complainant does not ask for a decree declaring that the whole of his covenant is without force in favor of the defendant, but merely that such declaration be made so far as his covenant restricts the number of dwellings which may be erected on his land. As to the other parts of his covenant, he asks no declaration, or other aid. The reason it has become important to the complainant to get the declaration he asks, if he can, is this: In 1881, he conveyed one acre of his four to another person, who subsequently erected a dwelling on it. He still retains the title to the other three. So that it will be perceived, if the defendant is entitled to the benefit of the complainant's covenant, and will have a right to seek redress against him if he violates it, that the complainant has by his own act placed the three acres which he still retains in a position where his right to use them as a site for a dwelling may always be challenged by the owner of the defendant's land. This is the situation which has induces the complainant to attempt to free himself from his obligation.

The validity of the covenant between the original parties is not disputed. No claim is made that the covenant was originally without force because against public policy, or beyond the capacity of the contracting parties. Covenants of this kind, which either add to the value or desirability of the land retained or conveyed, and which do not in any way impose an unreasonable restraint upon trade or industry, have, as I think an examination of the authorities clearly shows, uniformly been upheld and enforced. The purpose of the covenant in question is manifest. There can be no doubt that its purpose was to confer a benefit on the grantor's adjacent land, by restricting the number of habitations which should be erected on the four acres, thus securing forever to the grantor's adjacent land full protection against the discomfort and danger resulting from being surrounded by a dense population, and also the advantages arising from an attractive prospect, and an almost unobstructed view over the four acres, together with the benefit that would flow from a free and unobstructed passage of light and air over the four acres. The benefits which the grantor intended by the covenant to confer on his adjacent land are in all material respects substantially like those which would be conferred by a giant of land abutting on other laud of the grantor, which he by his grant covenants shall forever remain open as a park or garden. It is well settled that a covenant of the kind just mentioned will, whether it runs with the land or not, be enforced, not only against the covenantor, but also against any person...