Hutchinson v. Ulrich

• Decision Date: 03 April 1893
• Citation: 145 Ill. 336,34 N.E. 556
• Parties: HUTCHINSON et al. v. ULRICH et al.
• Court: Illinois Supreme Court

145 Ill. 336

34 N.E. 556

HUTCHINSON et al.

v.ULRICH et al.¹

Supreme Court of Illinois.

April 3, 1893.

Error to circuit court, Cook county; Murray F. Tuley, Judge.John W. Showalter and Eastman & Schumacher, for plaintiffs in error.

Wilson, Moore & McIlvaine, for defendants in error.

The facts fully appear in the following statement by CRAIG, J.:

This was a bill brought by Charles L. Hutchinson, Alison W. Harlan, James Mullen, George W. Chamberlain, and Alice M. Lawton against Russel Ulrich and W. Irving Beman to enjoin the erection of a ‘flats' building or apartment house on the corner of Greenwood avenue and Forty-Fourth street, Chicago. In the circuit court a decree was rendered dismissing the bill for the want of equity, but without prejudice to the right of the complainants to sue at law. The complainants excepted to the decree, and sued out this writ of error. Affirmed.

The facts out of which this litigation arose may be briefly stated. In March, 1889, plaintiff in error Charles L. Hutchinson, being owner of a strip of land fronting on Greenwood avenue, and extending from Forty-Fourth to Forty-Fifth street, made and duly recorded a plat, whereby he divided the property into a block of 12 lots, numbered from 1, on the corner of Forty-Fourth street, to 12, on the corner of Forty-Fifth. Each lot has a frontage of substantially 50 feet, and a depth of something over 150. In making a plat, Hutchinson fixed a building line 30 feet from the lien of Greenwood avenue. In April, 1889, he sold to plaintiff in error Mullen lot numbered 10. The deed, being otherwise in the ordinary form, contained the following words: ‘It is understood and agreed as part of the consideration above expressed that the purchaser is to erect on the premises described herein a single dwelling, costing not less than $7,500, said dwelling to be commenced within a period of forty-five days from this date. It is further agreed that the seller will sell the remaining lots fronting on Greenwood avenue in said block to parties who will cause to be erected single dwellings only on each lot of fifty feet.’ Mullen built on lot 10 a house for a private residence, which cost him more than $14,000. Meantime Hutchinson proceeded to sell the other 11 lots. Before the close of the year 1890 he had sold and conveyed all except lots 1 and 2. In October, 1891, and after his various deeds conveying the other 10 lots had been recorded, he sold and conveyed to one Parrish lots 1 and 2. Afterwards, and after the deed to Parrish had been recorded, Parrish's grantee, Loomis, conveyed lots 1 and 2 to defendants in error, Ulrich and Beman, who, having procured from Peabody a loan for the purpose, commenced to erect on the two lots a flat or apartment building upon each of the lots, the buildings to be four stories high, with a partition on the line between the buildings. The deed from Hutchinson to Parrish, conveying lots 1 and 2, contains the following clause: ‘It is understood and agreed as a part of the consideration expressed above that only a single dwelling is to be constructed or placed upon each fifty-foot lot, and that no building shall be constructed or placed upon the east thirty feet of said premises.’ Parrish conveyed to Loomis by warranty deed without any restriction, and Loomis conveyed to Ulrich and Beman, the defendants, by warranty deed without restriction.

CRAIG, J., (after stating the facts as above.)

It will be observed that plaintiff in error Mullen was the first purchaser from Hutchinson of one of the 12 lots which Hutchinson had platted and owned. In the deed from Hutchinson to Mullen is found a covenant that the grantor will sell the remaining lots fronting on Greenwood avenue in said block to parties who will cause to be erected single dwellings only on each lot of 50 feet. We think it is clear that this covenant inured to the benefit of all subsequent purchasers of the remaining 11 lots from Hutchinson, and by the terms of the covenant an easement was created in their favor as to all of the 11 lots sold after the execution of the Mullen deed. Dock Co. v. Leavitt, 54 N. Y. 35. It will also be observed that the deed from Hutchinson to Parrish conveying lots 1 and 2, the property now held by the defendants, and upon which they are erecting the structure in question, contains the following prohibition: ‘It is understood and agreed as a part of the consideration expressed above that only a single dwelling is to be constructed or placed upon each fifty-foot lot, and that no building shall be constructed or placed upon the east thirty feet of said premises.’ If, therefore, there has been any violation of this clause in the deed made to Parrish by the defendants, who claim under him, and who are bound by any condition in any deed in their chain of title made to any of the grantees, the purchasers from...