H. J. Lewis Oyster Co. v. West

• Decision Date: 11 June 1919
• Citation: 107 A. 138,93 Conn. 518
• Court: Connecticut Supreme Court
• Parties: H. J. LEWIS OYSTER CO. v. WEST et al.

107 A. 138

93 Conn. 518

H. J. LEWIS OYSTER CO. v. WEST et al.

Supreme Court of Errors of Connecticut.

June 11, 1919

Appeal from Superior Court, Fairfield County; Howard J. Curtis and William M. Maltbie, Judges.

Action by the H. J. Lewis Oyster Company against Lucy T. West and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with directions.

The action is based on a covenant, Exhibit A, executed January 31, 1888, by Pehr F. West in the manner prescribed for conveyances of land. It recites the amicable adjustment of a controversy formerly existing between the parties, in respect of a lease and agreement for sale of the premises in question, made between Henry J. Lewis and a firm of which West was a member, and that-

" as part of said adjustment said Lewis has this day conveyed by warranty deed said premises [describing them] to said West for the sum of twenty-five hundred (2,500) dollars, paid by said West to said Lewis: Now, therefore, this agreement witnessed, that in consideration of the foregoing; and for the further consideration of one dollar in hand paid by said Lewis to said West, the receipt whereof is hereby acknowledged the said Pehr F. West hereby covenants and agrees for himself, his heirs, executors and administrators to and with the said Henry J. Lewis, his heirs and assigns as follows, to wit: In the event that the said West shall at any time hereafter sell all his oyster grounds in the sound and harbor of Long Island Sound, that he will at the option of the said Lewis to be expressed within six months from the time he shall receive written notice from said West, that he, West has sold said oyster grounds, reconvey by like warranty deed to said Lewis said dock and premises described herein for the sum of twenty-five hundred (2,500) dollars and such sum in addition thereto, as may be agreed upon between said Lewis and said West to be the fair value, at the time of such reconveyance of such permanent improvements as the said West may have made upon said premises subsequent to the purchase of the same from said Lewis, and if the said Lewis and said West cannot agree upon a fair value for said improvements that each party shall select one appraiser, and the two thus selected shall select a third, and the appraisal of any two of said appraisers of the value of said improvements shall be binding upon said Lewis and said West; also that he, the said West or his legal representatives will not sell or convey said dock and premises herein described to any other party than said Lewis, without first giving to said Lewis an opportunity to purchase the same on the terms herein set forth, and that the said Lewis shall have six months from the time he shall receive written notice that said dock and premises are for sale, in which to determine whether he will purchase the same."

The instrument was recorded on the Bridgeport land records.

In 1895 Lewis organized the plaintiff corporation and transferred to it his oyster business and the premises on which it had been conducted. Lewis died in 1902 without disposing of his rights under Exhibit A by will, and all of his heirs at law have assigned to the plaintiff. In 1907 West died, leaving a will in which he devised the premises to the defendant Lucy T. West. In June Mrs. West executed a so-called lease, Exhibit B, of the premises to the defendant Gottlieb for the term of 99 years at the agreed rental of $25,000 payable in the course of 10 years, with the privilege of renewal for another term of 99 years at an agreed rental of $1 for the additional term of 99 years. This instrument was expressed to be subject to possible rights of the heirs and assigns of Lewis under Exhibit A.

The superior court found that the defendant West intended by Exhibit B to convey all her interest in the premises and to terminate the plaintiff's right of purchase under Exhibit A, and that the defendant West had conveyed the premises in attempted violation of the covenant contained in Exhibit A.

An interlocutory judgment was entered, setting aside Exhibit B, and directing the defendant to execute and deliver to the clerk of the court a good and sufficient deed of the premises to the plaintiff. Subsequently the value of the permanent improvements was fixed at $4,600, and the final judgment directed the delivery of the deed to the plaintiff on the payment of $7,100 into court for the use of the defendant West.

Gager, J., dissenting in part.

Carl Foster, of Bridgeport, for appellant West.

John W. Banks and Joseph G. Shapiro, both of Bridgeport, for appellant Gottlieb.

Sanford Stoddard and Philo C. Calhoun, both of Bridgeport, for appellee.

BEACH J.

This case has been twice argued. On the findings the court did not err in treating Exhibit B as a violation of the covenant not to convey the premises without giving the plaintiff, as assignee of Lewis, the opportunity of buying them on the agreed terms.

The case presents two other questions. Whether the covenants in Exhibit A bind the assignees of West who take with notice, and, if so, whether the covenant is void under the statute against perpetuities in force in 1888.

On the face of the covenant the intent to bind West, his heirs and administrators, in favor of Lewis, his heirs and assigns, is plainly stated. It is argued that the covenants are personal, because the parties are subsequently referred to as " said Lewis" and " said West" without repeating the words of inheritance, except that once the phrase " West and his legal representatives" occurs. Some authority for making this claim may be found in Clark v. Devoe, 124 N.Y. 120, 26 N.E. 275, 21 Am.St.Rep. 652, but with great respect we think that such a result violates the ancient rule of construction that-

" The law being the judge of an act, deed or bargain, consisting of divers parts, containing the will and intent of the parties, all tending to one end, doth judge of the whole, and gives every part his office to make up that intent, and doth not break the words in pieces." Earl of Clanricard et ux. v. Sidney, Hov. 275, quoted in Davis v. Lyman, 6 Conn. 249, 252; Easterbrook v. Hebrew Ladies' Orphan Asylum, 85 Conn. 289, 295, 82 A. 561, 41 L.R.A. (N. S.) 615.

The covenant in question is in its nature assignable. " The distinguishing feature of a real covenant is that it may be broken at a future time, and it is this quality which renders it assignable." 1 Swift's Dig. 370. All parts of the covenant may be reconciled by construing the words " said Lewis" as referring to the antecedent phrase " Henry J. Lewis, his heirs and assigns," contained in the same sentence; and it is more reasonable to suppose that the parties used the words " said Lewis" as a convenient abbreviation for the antecedent phrase in the same sentence than that they should first solemnly characterize the agreement as assignable and then intentionally deprive it of that quality.

It is noted that the defendant West who takes as devisee out of the original covenantor, takes by purchase, and the covenant of West is made for himself, his heirs and administrators, omitting the word " assigns." The omission of this word has often been held to be of no importance. " When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quodammodo annexed and appurtenant to the thing demised and shall go with the land and bind the assignee although he be not bound by express words." Spencer's Case, 1 Smith leading Cases, star page 68. For example, a lessor's covenant for the renewal of the lease binds the assignee of the reversion though assignees are not named in the covenant. 1 Swift, 358.

It was formerly held that a covenant made by the owner of the land would not, except in the case of a lease, burden the land so as to bind his assignee. But this rule does not apply to assignees who take with notice. 1 Smith Leading Cases, star page 102. In this case West covenants for himself, his heirs and administrators, intending thereby to incumber the land in their hands by an agreement for a conveyance on a contingency which may happen after his death. And Swift says:

" For a covenant which runs and rests with the land, an action lies for or against the assignee at common law, for the land passes with the incumbrance, quia transit terra cum onere, although the assignee be not named in the covenant." 1 Swift, 158.

It will be noted that Swift does not limit his statement to leases, probably because our recording system makes such a limitation unnecessary.

What Swift says is particularly applicable to this case, for, as the preamble to the covenant states, the conveyance from Lewis to West and the covenant by West for a reconveyance, on the contingencies named, were parts of one transaction, described therein as the adjustment of the prior controversy in respect of the same premises. In equity West never owned the absolute fee. He took the premises incumbered by the covenant for a reconveyance and it would be inequitable and inconsistent with the limitations of his own title for him to claim the right to convey the premises to an assignee with notice, free from the equitable incumbrance to which it was subject in the hands of himself, his heirs, executors, and administrators. If he could give a clear title to such an assignee, he could get one himself by a conveyance from his assignee, and thus defeat the covenant.

Whether the devise to Lucy T. West was a breach of the covenant need not be determined, for the finding is that the plaintiff has never had the notice or the opportunity to purchase to which it is entitled under Exhibit A, from which it follows that the six months within which the plaintiff might determine whether to...