Mdlligan v. Jordan

• Decision Date: 18 June 1893
• Citation: 50 N.J.E. 363,24 A. 543
• Parties: MDLLIGAN v. JORDAN.
• Court: New Jersey Court of Chancery

24 A. 543

50 N.J.E. 363

MDLLIGAN

v. JORDAN.

Court of Chancery of New Jersey.

June 18, 1893.

Bill in equity by Annie C. Mulligan against Margaret A. Jordan. Decree for defendant.

Alfred Hugg, for complainant.

C. L. Coe and Joseph Thompson, for defendant.

GREEN, V. C. Complainant is the owner of a house and lot on North Carolina avenue, at Atlantic City, which she purchased from Elijah Roberts in 1889. Her deed contains a covenant that no building of any description shall ever be erected or placed upon the said lot nearer the westerly curb line of North Carolina avenue than 41 feet; that is, from the curb line to the front of the main building. She erected a cottage upon this property. Subsequent to the complainant's purchase and deed, the defendant purchased the premises adjoining on the east from Mr. Roberts, and her deed also contains the same covenant. She proceeded to erect a cottage upon her lot, which was completed in January, 1890. It has a piazza in front, and a covered way extending from the piazza to the street. This nation is brought by the complainant seeking to enforce the restrictive covenant against the defendant, on the allegation that the defendant has violated it, by building within the prescribed limits, alleging that the bay window of defendant's house, as well as the piazza and the covered way, are such violation. She asks a mandatory injunction requiring the defendant to move the house back, and for the removal of such erections as are within the prescribed limits. The defendant first raises the question whether this action can be maintained by the complainant.

The complainant's deed is prior to that of the defendant. There is no covenant to the complainant from Mr. Roberts, the grantor, that he holds the remainder of the property subject to the same restrictions, or that he will exact similar covenants from purchasers of the remaining property; nor is the complainant the express assign of defendant's covenant with Mr. Roberts; nor is there any covenant between the complainant and the defendant. The right of an owner of a lot to enforce a covenant (to which he is not a party or an assign) restrictive of the use of other lands is dependent on the covenant having been made for the benefit of this lot. Obviously, while a subsequent purchaser might, by the operation of this rule, acquire a right of action against a prior purchaser, the prior purchaser would acquire no rights from a covenant entered into by a subsequent...