Leverich v. Roy Et Ux
| Decision Date | 17 January 1949 |
| Docket Number | No. 30691.,30691. |
| Parties | LEVERICH et al. v. ROY et ux. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Kane County; Harry W. McEwen, Judge.
Suit by F. Stanley Leverich against Robert M. Roy and Helen J. Roy, his wife, to enforce a restrictive covenant in a deed of realty, for an injunction to restrain a further breach, for mandatory order compelling removal of structures said to constitute the breach, and for damages. From a decree dismissing the complaint for want of equity, the plaintiff appeals.
Cause transferred to Appellate Court.
Carleton A. Shults, of Aurora (D. W. Cockfield, of Aurora, of counsel), for appellants.
Reid & Ochsenschlager, of Aurora (Frank R. Reid, Jr., of Aurora, of counsel), for appellees.
A complaint was filed in the circuit court of Kane County by F. Stanley Leverich and others against appellees, Robert M. Roy and Helen J. Roy, his wife, to enforce an alleged breach of a restrictive covenant in a deed of real property. The complaint was for an injunction to restrain a further breach, and a prayer for a mandatory order to remove the structures said to constitute the breach, and for damages. The circuit court dismissed the complaint for want of equity.
The covenant claimed to have been breached among other things contained the following: ‘That said premises or any buildings erected thereon shall not at any time be used for the purpose of any trade, business or manufacture, or as a school, hotel, place or public resort or charitable institution; that no building shall be erected on said premises except a private dwelling house and outbuildings thereof, and no building erected thereon shall at any time be used except for such purpose; that said premises or any part thereof shall never be sold to a person or persons of a race other than the Caucasion Race.’ The premises of appellees were improved by certain additions wholly within the building, so that what before had been occupied by one family was after the improvement occupied by two families.
Appellants claim the covenant forbidding the erection upon the lot of anything except ‘a private dwelling house and outbuildings' was limited to a dwelling house occupied by one family only, and that appellees have breach said covenant by leasing a part of said dwelling house to another family.
Appellants seek to come to this court by direct appeal. It must be apparent we have no jurisdiction. No ground for direct appeal set out in section 75 of the Civil Practice Act, Ill.Rev.Stat. 1947, c. 110, s 199, could possibly apply, with the possible exception that a freehold might be involved. The subject matter of this suit is a breach of a covenant. The first words in the...
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Commissioners of Highways of Towns of Annawan v. U.S., s. 80-2168
...running with the land is a promise concerning the use and enjoyment of land agreed to by parties in privity. Leverich v. Roy, 402 Ill. 71, 73, 83 N.E.2d 335, 336 (1949); Purvis v. Shuman, 273 Ill. 286, 294-95, 112 N.E. 679, 682 (1916); Thompson on Real Property §§ 3152, 3155 (1962); Tiffany......
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Tree v. Continental Ill. Nat. Bank & Trust Co. of Chicago
... ... The Supreme Court has repeatedly held that in order for a freehold to be involved it must appear from the record: ... (1) that the title to real estate was put in issue by the pleadings and on appeal by assignment of error touching the freehold, Leverich v. Roy, 402 Ill. 71, 73, 83 N.E.2d 335; ... (2) that a freehold is directly and not collaterally, contingently and incidentally involved, Murray v. Sheridan, 411 Ill. 65, 67, 102 N.E.2d 822, and ... (3) that the necessary result of the judgment or decree is that one ... ...
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Cimino v. Dill
... ... "A covenant is an agreement between the parties to do or not to do a particular act." (Leverich v. Roy (1949), 402 Ill. 71, 73, 83 N.E.2d 335.) In other words, there must be a meeting of the minds between the covenanting parties. But, "A grantee who accepts a deed with a covenant imposing duties upon him is as much bound by such [a] covenant as though he had signed and sealed the deed." ... ...