McNichol v. Townsend

• Citation: 73 N.J.E. 276,67 A. 938
• Parties: McNICHOL et al. v. TOWNSEND.
• Decision Date: 05 October 1907
• Court: New Jersey Court of Chancery

67 A. 938

73 N.J.E. 276

McNICHOL et al.

v. TOWNSEND.

Court of Chancery of New Jersey.

Oct. 5, 1907.

Bill by Anastasia A. McNichol and others to enforce a restrictive building covenant. Order to show cause discharged.

Bourgeois & Sooy, for complainants. Thompson & Cole, for defendant.

LEAMING, V. C. Complainant seeks the enforcement of a certain restrictive stipulation which is contained in a deed of conveyance made to defendant's predecessor in title. Omitting unimportant details, the facts may be briefly stated as follows: October 19, 1888, one Brown owned several lots on States avenue, in Atlantic City. On that day he conveyed to one Graham a lot on the easterly side of the avenue at the corner of Pacific avenue. The deed of conveyance contained the restrictive clause now in question, which was in this language:

"Under and subject nevertheless to the following conditions and restrictions; that the house erected upon said lot shall be of good style and in keeping with the other properties on said United States avenue, to be built in line with the other houses and at a distance of not less than thirty two feet from the line of said United States avenue, and that the depth or width of the porch shall not be more than eight (8) feet, and that there shall be no stable, outside privy or outbuilding erected upon the same, and that no building erected upon said lot shall be used as a hotel, tavern, boarding house, or other like purpose."

By sundry mesne conveyance the title to this lot became vested in defendant with notice upon the part of defendant of the existence of the restrictive stipulation contained in the Graham deed. October 16, 1809, Brown conveyed to complainant a lot on the westerly side of States avenue, about 150 feet southerly of Pacific avenue. This deed contained a similar clause. Defendant is about to erect a building on his lot which is to extend to within six feet of the line of States avenue, and complainant seeks a preliminary injunction against this violation of the terms of the Graham deed above quoted.

The equitable grounds on which restrictions of this nature may be enforced at the instance of a subsequent grantee of the common grantor are well defined. One owning a tract of land may convey a portion of it, and by appropriate covenant or agreement may lawfully restrict the use of the part conveyed for the benefit of the unsold portion, providing that the nature of the restricted use is not contrary to principles of public policy. In such case, a subsequent purchaser of all or a part of the remaining land for the benefit of which the stipulation was made may in equity enforce the observance of the stipulation against the prior grantee upon the principle that the rights created by such a stipulation are transferable as part of the land to which they are attached (Coudert v. Sayre, 46 N. J. Eq. 386, 303, 19 Atl. 190), and such subsequent purchaser may in equity enforce the stipulation against a person who holds title under the prior purchaser, who has acquired title with notice of the...