Leaver v. Gorman

• Decision Date: 04 June 1907
• Citation: 67 A. 111,73 N.J.E. 129
• Parties: LEAVER v. GORMAN.
• Court: New Jersey Court of Chancery

67 A. 111

73 N.J.E. 129

LEAVER

v. GORMAN.

Court of Chancery of New Jersey.

June 4, 1907.

Bill by Emma E. Leaver against John D. Gorman to enjoin breach of a restrictive building covenant Injunction allowed in part, and refused in part.

Charles E. Cook, for complainant Collins & Corbin, for defendant

STEVENS, V. C. The complainant is the owner of two improved lots of land in Asbury Park—one on the north side of Sewell avenue and the other on the south. The defendant is the equitable owner of two lots on the north side of the same avenue, one a lot 24 by 100, known as "lot No. 141," and the other a vacant lot adjoining, 50 by 100, On defendant's first-mentioned lot for several years prior to 1901 there stood a livery stable. In 1901 the livery business was discontinued, and the then owner commenced to make and bottle mineral water, sold principally to summer residents of the resort. The manufacture, conducted on a small scale, changed hands and was finally acquired by defendant, who proposes to erect on his vacant lot a storeroom and other conveniences to be used in connection with this business. The complainant objects to this contemplated use, on the ground that Sewell avenue is a residence street, and that the deeds conveying lots on it contain (inter alia) a covenant against the erection of factories.

As is well known, the park was laid out by Mr. Bradley, its founder, about the year 1872. In nearly all the deeds which he made he caused to be inserted the following, or a very similar, covenant: "The said party of the second part, for himself, his heirs, executors, administrators, and assigns covenants that he and they shall never use said premises, or cause the same to be used, for the sale of intoxicating liquors or for any manufacturing purposes whatever, and that no hog pen shall ever be erected thereon." This covenant, so far as Mr. Bradley was concerned, was replaced by the similar and somewhat broader covenant contained in the quitclaim deed from Bradley to Sexton, the then owner, made in 1889; but, inasmuch as the complainant had acquired from Bradley title to one-half of lot 158 and lot 159 on May 1, 1876, the benefit of the covenant in the Taylor deed passed to her at that time, and was unaffected by the subsequent quitclaim of 1889. This covenant is contained in the deeds both in complainant's and defendant's chain of title, and the question is whether complainant is in a position to enforce the covenant against defendant The law has been so completely settled in a series of decisions (Brewer v. Marshall, 19 N. J. Eq. 537, 97 Am. Dec. 679; Lennig v. Ocean City Ass'n, 41 N. J. Eq. 606, 7 Atl. 491, 56 Am. Rep. 16; De Gray v. Monmouth Beach Clubhouse, 50 N. J. Eq. 329, 24 Atl. 388; Mulligan v. Jordan, 50 N. J. Eq. 363, 24 Atl. 543; Hayes v. Waverly & Passaic R. R. Co., 51 N. J. Eq. 345, 27 Atl. 648; Trout v. Lucas, 54 N. J. Eq. 361, 35 Atl. 153; Roberts v. Scull, 58 N. J. Eq. 396, 43 Atl. 583; Ocean City Ass'n v. Hcadley, 62 N. J. Eq. 322, 50 Atl. 78) that I have only to apply the principle. The law is this: 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 grantee covenantor, but against all subsequent purchasers having notice of the covenant, whether it run with the land or not There is, however, this distinction: The original grantor in imposing the covenant upon the grantee either may or may not bind himself. If he does not bind himself, then his grantee, having no right of action against him, cannot pursue any other grantee to whom he may subsequently convey the whole or a part of the remaining lands. In the case of the lands in question Mr. Bradley chose to remain unbound. In none of the multitude of deeds offered in evidence does it appear that he covenanted to impose the restrictions in question upon the lands remaining in his hands. The consequence is that, while a subsequent grantee of Mr. Bradley of one lot could enforce the covenant against a prior grantee of another lot, a prior...