Hemsley v. Marlborough Hotel Co.

• Decision Date: 14 August 1901
• Parties: HEMSLEY v. MARLBOROUGH HOTEL CO.
• Court: New Jersey Court of Chancery

50 A. 14

62 N.J.E. 164

HEMSLEY

v. MARLBOROUGH HOTEL CO.

Court of Chancery of New Jersey.

Aug. 14, 1901.

Bill by Frederick Hemsley against the Marlborough Hotel Company for an injunction. Dismissed.

The complainant and the defendants owned lots in Atlantic City, the title to which came to them from common grantors. The complainant seeks to enjoin the defendants from an alleged violation of a covenant contained in deeds in the chain of title to the defendants, which covenant is in the following words: "Also that no building whatever shall ever be erected upon the above-described lot or piece of ground except as and for use as a dwelling house." There follows a specification of special structures the erection of which are forbidden. This covenant, so far as it relates to matters involved in the present case, will be styled the "dwelling covenant." The complainant charges, and it is not denied, that the defendants are about to erect upon their plot a large boarding house or hotel. The manner in which the complainant and defendants are related can be best stated by a reference to the accompanying diagram:

The original lot, bounded by Pacific, Indiana, and Ohio avenues and the ocean, was in 1879 owned by Hamilton Disston and George F. Lee. On May 28, 1879, Lee and Disston made a deed of dedication of a street 60 feet in width, marked "Park Place," and of the park, marked "Brighton Park." Attached to the dedication deed was the diagram above displayed, and reference was made to the plan of lots upon it, with a statement that the plan was to be recorded. The property now owned by the complainant is lot No. 1, Disston cottage, and No. 2 and No. 3, on said diagram. The lots owned by the defendants are Nos. 14 to 20, inclusive, on the diagram. As already remarked, the titles to the tracts of both parties came from Disston and Lee. The title to lots No. 2 and No. 3, now belonging to complainant, is traced thus: Disston sold on May 28, 1879, to George F. Lee, his undivided interest in lots Nos. 2 and 3, as well as in Nos. 4, 5, and 6. On September 11, 1879, Lee conveyed the same lots to Mary Disston. The first of these deeds did not, but the latter deed did, contain a covenant against buildings other than dwellings, similar in language to the covenant already set out. It also contained a covenant against the sale of liquor. On May 18, 1880, Mary Disston conveyed lots Nos. 2 and 3 to Albert H. Disston, and he, on March 4, 1881, conveyed them to one Corinth, who again, on October 20, 1881, conveyed to Mary Disston. The title to the Disston cottage lot No. 1, also now owned by complainant, came through a deed from Lee and Disston to Mary Disston, made May 28, 1879. This deed contains no dwelling restrictions, but a covenant against liquor selling only. By these deeds it is perceived the title to lots 1, 2, and 3 came to Mary Disston. On October 1, 1895, the trustees under her will, in conjunction with her husband, made a deed of these lots to the complainant, Frederick Hemsley. The defendants trace their title for lots Nos. 15 and 16 through a deed from Lee and Disston to Amelia Sparks, dated September 10, 1879. For lots Nos. 17, 18, 19, and 20 the title is traced through deed from Lee and Disston to Mary Disston, made May 10, 1880, and for lot No. 14 through a deed made by Lee and Disston on February 10, 1880, to Hinman Lander Hall. Each of these deeds contained a dwelling house restriction in the form already set out.

Samuel H. Grey, for complainant.

C. L. Cole, D. J. Pancoast, and Richard V. Lindabury, for defendant.

REED, V. C. (after stating the facts). The defendants, in the first place, deny that the structure about to be erected is in violation of the covenant. Ordinarily, the structure in question, intended to be in all respects excepting the sale of liquor a hotel, could not be properly styled a dwelling. When, however, the purpose of the restriction is manifested by the designated structures which are specially forbidden, it becomes a close question whether, within the meaning of the parties to the contract, a building in which people dwell, although for brief and uncertain periods, comes within the forbidden class of structures. But, conceding that the structure contemplated is not a dwelling, what are the complainant's rights to enforce the covenant? It is entirely settled that, where an owner sells a portion of his land, he can impose a restriction, not obnoxious to public policy, upon the use of his remaining land (Brewer v. Marshall, 19 N. J. Eq. 537, 97 Am. Dec. 679), or upon the portion sold (Coudert v. Sayre, 46 N. J. Eq. 386, 19 Atl. 190), which covenant the owner or his grantee can enforce. When such a covenant is included in the deed to a grantee, and such covenant is made for the benefit of the remaining land of the vendor, the right to enforce the covenant passes to a subsequent grantee of the vendor. The questions primarily propounded are: Does the complainant stand in the attitude of a subsequent purchaser from the vendor with whom defendants' predecessor in title made his or her covenant? and, secondly, was such covenant made for the benefit of the land subsequently sold to the complainant's predecessor in title? The first deed in complainant's chain of title was from Disston to Lee, putting a title in severalty in Lee to lots Nos. 2 and 3. The title to lot No. 1 passed from Lee and Disston on May 28, 1879. The first deed in defendants' chain of title was to Amelia Sparks dated September 10, 1879. The Sparks deed, therefore, containing the covenant against buildings other than dwellings, was made subsequent to the first deeds in complainant's chain of title; and even if the deed from Lee to Mary Disston on September 11, 1879, should be regarded as a deed from a vendor in common with the Sparks deed, yet the latter was acknowledged by one of the grantors on the 11th of September, and so neither can be regarded as possessing priority of time in the date of their execution. It cannot be said, therefore, that when the predecessors in title of Mr. Hemsley bought they took the land with the benefit of the restrictive covenant contained in the Sparks deed attached to it. So far, then, as the complainant's right to enforce the covenant contained in the Sparks deed, or in any other of the defendants' deeds, such right must rest upon a general scheme or understanding that all the lots plotted should be sold for residential purposes, and that each deed therefor should contain a restriction against other use. In respect to the restriction against buildings other than dwellings, there is no trace of a general understanding or scheme in respect to such covenants. The plot itself attached to the dedication deed indicates nothing but a division of the land into lots, upon which land is a dedicated street and park. Nor does the dedication deed itself contain any allusion to such a restriction. It does contain an agreement that the grantees of such lots shall covenant not to sell spirituous liquors. Nor does the method adopted in selling the lots show uniformity in the matter of restrictions. In most of the deeds, I think, there were restrictions against factories and objectionable buildings of like character. The dwelling restriction was only incorporated in a few of the deeds. The Adams lot had been sold before the execution of the dedication deed, with only a factory restriction; and lots Nos. 7, 8, 9, and 10 were afterwards sold with factory restrictions only. Long before the present defendants bought the site upon which they proposed to erect a boarding house or hotel, the neighborhood was studded with boarding houses. Lots 7, 8, and 9 were the sites of buildings used by the Mercer Memorial Home as a boarding house. Lot No. 10 was covered by the Revere Hotel, and lot No. 11 by the Runnymede Hotel. These lots were conveyed, as already remarked, without dwelling-house restrictions. But, in addition, lots Nos. 12 and 13, conveyed to Hall with such restrictions, were each sites of buildings used as boarding houses. Upon lot No. 12 was the Glasslyn, and upon No. 13 the Chatham. These were, if the present structure will be, breaches of the covenant, which have remained unchallenged by the complainant, or any other grantee. In regard to the use of the property now belonging to the defendants it appears that Lewis T. Bryant, who sold to John J. White, who sold to the defendants, bought the property from the Female Academy of the Sacred Heart The building upon the land was used in part as a boarding school while owned by the academy. Mr. Bryant bought on May 31, 1900, and took possession on the 1st of June. He changed the interior of the house, and used it during the season as a hotel or boarding house under the name, exhibited upon two signs, of the Waverly Villa. No objection to its use as such was interposed by any one. Indeed, the building upon lot No. 1, known as the "Disston Cottage," was and is used by the complainant as an annex to his hotel, and in it guests are lodged in the same manner as in the main building. It thus appears that there was nothing in the transaction to exhib't an understanding that the dwelling-house restriction was to be common to all grantees, and was to be inserted in all deeds for the benefit of the lands conveyed to the different purchasers, or that each purchaser was to be burdened with his own and benefited by the other covenants. These features were declared by Vice Chancellor Green in the case of De Gray v. House Co., 50 N. J. Eq. 329-340, 24 Atl. 388, to be essential to a scheme which would confer upon one grantee the right to enforce a covenant made by another grantee with the common vendor. The dwelling-house covenant is not to be found in all the deeds executed by Lee and Disston, nor in all the deeds executed by Mary Disston, who is also a common grantor of land owned by the complainant, and some of the land owned by the defendants, upon which a part of its...