de Gray v. Monmouth Beach Clubhouse Co.

• Decision Date: 28 May 1892
• Citation: 24 A. 388,50 N.J.E. 329
• Parties: DE GRAY v. MONMOUTH BEACH CLUBHOUSE CO. et al.
• Court: New Jersey Court of Chancery

24 A. 388

50 N.J.E. 329

DE GRAY

v. MONMOUTH BEACH CLUBHOUSE CO. et al.

Court of Chancery of New Jersey.

May 28, 1892.

(Syllabus by the Court.)

Bill by Richard De Gray against the Monmouth Beach Clubhouse Company and others to enjoin them from erecting a certain building. Heard on bill, answers, and proofs. In junction dissolved, and bill dismissed.

W. A. Heisley and R. Wayne Parker, for complainant.

E. Q. Keasbey and A. Q. Keasbey, for defendants.

GREEN, V. C. The title of the lands known as the "Monmouth Beach Property," purchased by a number of individuals, was vested in two of their number as joint tenants, who held the title in trust for the owners. By deed dated October 2, 1871, acknowledged October 11, 1871, Daniel Dodd and Francis Mackin, the then trustees, conveyed to Richard De Gray lot No. 20, as laid down on the map of the Monmouth Beach property, made by K. Fosburgh in September, 1871, said lot being 100 feet front and rear, and about 450 feet deep, running from the east side of Ocean avenue to the Atlantic ocean, and being the southeasterly corner of Ocean avenue and Beach road. Beach road is laid out on the map as running from the clubhouse property, hereafter mentioned, to the ocean. The deed contains the following covenant: "And the said party of the second part, for himself, his heirs and assigns, doth hereby covenant, to and with the said Daniel Dodd and Francis Mackin, their heirs, executors, and administrators, that he, the said party of the second part, his heirs or assigns, will not, at any time hereafter, erect or permit, upon any part of the said lot, any hotel, drinking saloon, gaming house, slaughter house, furnace, manufactory, brewery, distillery, or building for the curing of fish, or for any other uses or purposes that shall depreciate the value of the neighboring property for dwelling houses." The deed was recorded in Monmouth county clerk's office, October 18, 1871. By deed also dated October 2, 1871, and acknowledged October 11th, Daniel Dodd and Francis Mackin, the then trustees, conveyed to Benjamin F. Robinson lot No. 22, as laid down on said map, being 100 feet front and rear, running from the east side of Ocean avenue to the Atlantic ocean, and being the northeasterly corner of Ocean avenue and Beach road. This deed contained the same covenant as the former, and was recorded September 11, 1872. This lot was conveyed by deed dated September 2, 1879, by Benjamin F. Robinson and wife to Sarah Seymour Houghton, wife of Matthew H. Houghton, and was therein declared to be conveyed "subject to all the conditions contained in said deed from Dodd and Mackin to the said Robinson." By deed dated October 17, 1871, and recorded November 3, 1871, the same trustees conveyed lot No. 24, subject to the same covenant, to Jacob S. Wetmore. The title to this lot, by various mesne conveyances, all recorded in Monmouth county clerk's office, passed to one Samuel Blagden, by whom it was conveyed to the said Richard De Gray by deed dated October 24, 1879. Each of these deeds, except that from George W. Brown, sheriff, to Blagden, and that from Blagden to complainant, contained the covenant. October 25, 1876, Daniel Dodd and Anthony Q. Keasbey, the then trustees, conveyed to Richard De Gray lot No. 26, running from Ocean avenue to the Atlantic ocean, and lying north of and adjoining lot 24. The deed thereof contained the same covenant, and was acknowledged October 27, and recorded October 31, 1876.

It thus appears that the complainant is the owner of lot No. 20, separated by the Beach road from defendants' lot No. 22, called the "Robinson Lot," both lots having been conveyed by the trustees on the same day, viz., October 2, 1871: that he is also the owner of lot No. 24, adjoining the Robinson lot on the north, and also of lot No. 26, the next lot thereto,—all of which were conveyed by the trustees subject to the same covenant. The complainant has a grant from the state of the riparian rights in front of his property, including the one half of the Beach road lying adjacent to lot No. 20. By deed dated December 3, 1878, Ed ward A. Walton and Samuel Dodd, the then trustees, conveyed to Sarah S. Houghton, wife of Matthew H. Houghton, four tracts of land, part of the Monmouth Beach property,—the first being a circular shaped lot, on which stands the clubhouse, known as "Sea-View Cottage Plot," laid out and shown on the said map of the Monmouth Beach property, excepting thereout certain lots, which had been theretofore conveyed by the trustees; subject, also, to a lease to Matthew H. Houghton for the term of five years from January 1, 1876. The second, third, and fourth tracts conveyed were other portions of the Monmouth Beach property. This deed contains the same covenant inserted in the before mentioned deeds, followed by this proviso: "But this covenant is not to apply to the clubhouse mentioned in the tract first above described, and heretofore occupied by Matthew H. Houghton." Sarah S. Houghton and her husband, by deed dated November 20, 1890, conveyed to the Monmouth Beach Clubhouse Company, incorporated under the laws of New Jersey, four tracts of land,—the first being the clubhouse tract; the second and third, two other of the tracts conveyed to her by the deed from Walton and Dodd, "subject to the covenants and restrictions, and with the express reservation and exemption, as to the clubhouse, contained in said deed;" the fourth, lot No. 22, conveyed to her by Benjamin F. Robinson and wife, referring specifically to the deed from them, dated September 2, 1879, and the record thereof; and also conveying the riparian rights conveyed by the state to the parties of the first part of said deed. The bill, as originally filed by Mr. De Gray, sought to enforce the covenant contained in these deeds, by enjoining the building of a large house upon the clubhouse tract, and the erection of a commodious bathing house on the Robinson lot.

It is settled that a court of equity will restrain the violation of a covenant entered into by a grantee, restrictive of the use of lands conveyed, not only against the covenantor, but against all subsequent purchasers of the lands with notice of the covenant, irrespective of the questions whether the covenant is of a nature to run with the land, or whether it creates an easement: provided, however, that its enforcement is not against public policy. Tulk v. Moxbay, 2 Phil. Ch. 774, (said by Brett, L. J., in Haywood v. Society, 8 Q. B. Div. 403, 407, to be the leading case on the subject;) Mann v. Stephens, 15 Sim. 376; Bristow v. Wood, 1 Colly. 480; Coles v. Sims, 5 De Gex, M. & G. 1; Wilson v. Hart, 1 Ch. App. 468; Feilden v. Slater. L. R. 7 Eq. 523; Richards v. Revitt, 7 Ch. Div. 224; Patman v. Harland, 17 Ch. Div. 359; Brewer v. Marshall, 19 N. J. Eq. 537; Winfield v. Henning, 21 N. J. Eq. 188; Coudert v. Sayre, 46 N. J. Eq. 386, 19 Atl. Rep. 190. Chief Justice Beasley, in Brewer v. Marshall, supra, at page 543, referring to several of the cases, says: "It will be found upon examination that these decisions proceed upon the principle of preventing a party having knowledge of the just rights of another from defeating such rights, and not upon the idea that the engagement enforced created easements, or are of a nature to run with the land." While Sir George Jessel, M. R., in Railway Co. v. Comm., 20 Ch. Div. 562, at page 563, speaking of Tulk v. Moxhay, said: "The doctrine of that case, rightly considered, appears to be either an extension in equity of the doctrine of Spencer's Case, 1 Smith, Lead. Cas. 145, 5 Coke, 16a, to another line of cases, or else an extension in equity of the doctrine of negative easements,"—the principle as stated by the chief justice in Brewer v. Marshall will be found to be recognized as the governing one, not only in the cases he refers to, but in others in which the rule has been considered. De Mattos v. Gibson, 4 De Gex & J. 276; Piggott v. Stratton, 1 De Gex, F. & J. 33; Keates v. Lyon, 4 Ch. App. 218; Richards v. Revitt, supra; Spicer v. Martin, 14 App. Cas. 12; Mackenzie v. Childers, 43 Ch. Div. 265; Clegg v. Hands, 44 Ch. Div. 504.

This rule of equity being an encroachment on the general doctrine of the common law, that the burden of a covenant does not run with the land, (Spencer's Case, 1 Smith, Lead. Cas. 145; Austerberry v. Corporation of Oldham, 29 Ch. Div. 750,) its application is not to be extended beyond the class of cases in which it has been heretofore enforced, (Brewer v. Marshall, supra, at page 546,) and is to be confined to negative covenants, (Haywood v. Society, supra; Hall v. Ewin, 37 Ch. Div. 74; Railway Co. v. Comra, supra.) The equity thus enforced arises from the inference that the covenant has, to a material extent, entered into the consideration of the purchase, and that it would be unjust to the original grantor to permit the covenant to be violated. Lord Cottenham, in Tulk v. Moxhay, supra, at page 777, says: "It is said that, the covenant being one which does not run with the land, this court cannot enforce it; but 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. Of course, the price would be affected by the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken." Cotton, L. J., in Hall v. Ewin, supra, at page 79, says: "As 1 understand Tulk v. Moxhay, the principle there laid down was that if a man bought an underlease, although he was not bound in law by the restrictive covenants of the original lease, yet, if he purchased with notice of those covenants, the court of chancery could not allow him to use the land in...