Minch v. Saymon
| Decision Date | 24 July 1967 |
| Docket Number | No. C--1579,C--1579 |
| Citation | 233 A.2d 385,96 N.J.Super. 464 |
| Parties | Joseph A. MINCH and Marie Minch, his wife, Plaintiffs, v. Catherine E. SAYMON, widow, et al., Defendants. |
| Court | New Jersey Superior Court |
Aristo Dallavalle, Newark, for plaintiffs.
Sauer & Kervick, Cranford, for defendants (James F. Kervick, Cranford, appearing).
Plaintiffs have sued for relief against a covenant which by its terms limits the use of their property to a residential site for no more than three families. The property is at 20 Riverside Drive in Cranford and has a frontage of approximately 100 feet on that street. The covenant originated in a deed dated November 4, 1944 from Florine Beardslee to Benjamin H. Saymon and his wife Catherine. It was in the following form:
'And the parties of the second part, for themselves, their heirs and assigns, hereby covenant, promise and agree to and with the party of the first part, and her heirs and assigns, that they will not suffer or permit said premises to be used for any purpose other than a private dwelling place.'
On the date of her deed to Mr. and Mrs. Saymon, Mrs. Beardslee owned no other real estate in the vicinity of the property conveyed. She never acquired any subsequently. The absence of any other property of Mrs. Beardslee's which could be protected by enforcement of the covenant is a fact on which plaintiffs rely heavily. The case has its complications, however. Some years before 20 Riverside Drive was sold to the Saymons, Mrs. Beardslee had owned adjacent property and had conveyed part of it to her daughter Eleanor B. Haines and another part to her daughter Frances B. Heston. In 1938 Mrs. Haines and Mrs. Heston conveyed the lands which they had thus acquired from their mother to a corporation, English Village, Inc. Promptly thereafter the corporation built a very large apartment house upon, or partly upon, the former Haines-Heston lands. The apartment house is several stories high, forms a quadrangle and is called English Village. Individual apartments on the side of the quadrangle which faces the rear line of plaintiffs' property have a view of the Rahway River which flows just beyond Riverside Drive. The view would be cut off, of course, if a sizable apartment building were erected on plaintiffs' property.
When the covenant was inserted in the Saymon deed of November 4, 1944, Mrs. Haines and Mrs. Heston owned a majority of the shares of stock of English Village, Inc., which in turn was the owner of the large apartment house called English Village. After selling the home at 20 Riverside Drive to the Saymons, Mrs. Beardslee and her husband moved into one of the apartments, but their windows did not look out over their former home so it cannot be said that the covenant was taken for the benefit of Mrs. Beardslee's leasehold in English Village.
Other indications of the close connection between the Beardslee family and English Village, Inc. are these: Mr. Beardslee for a considerable period of time was president of the corporation and held that office at the time plaintiffs acquired title to 20 Riverside Drive, and down to the present time Mrs. Heston and Mrs. Haines and members of their immediate families have in the aggregate held more than half of the corporate stock. At the trial there was testimony from Mr. Heston, who is now the president of English Village, Inc. and has been a director since its formation. He said, among other things, that the restriction was inserted in the Saymon deed in an attempt to protect English Village.
The covenant which originated in the Beardslee-Saymon deed of November 1944 has been given formal recognition several times since. On November 8, 1954 Mr. and Mrs. Beardslee executed and delivered to Mrs. Saymon--by this time a widow--a formal instrument authorizing conversion of the house located at 20 Riverside Drive into a two-family dwelling. This grant was not recorded. On August 1, 1956 Mr. and Mrs. Beardslee executed and delivered to Mrs. Saymon another form of instrument authorizing in some detail certain structural charges designed to make the residence usable by two families. This instrument was recorded on September 25, 1956. It contained this language, located just above the signatures:
'* * * said changes and modifications of said covenants and restrictions to run with the land and except as herein and by the aforesaid grant changed and modified, the parties hereto ratify and confirm the aforesaid covenants and restrictions contained in the aforesaid deed dated November 4, 1944.
The parties hereto reaffirm an express intent to restrict the use of said premises to residential use and for a dwelling place of not more than two families.'
It appears that the modification agreement of August 1, 1956 was probably obtained by Mrs. Saymon in relation to a conveyance which she had contracted to make to Mr. Minch, one of the plaintiffs. On July 5, 1956 she and Mr. Minch had signed a contract of purchase and sale. One of the provisions of the contract was:
'The within conveyance to be made expressly subject to the following covenants and restrictions of record, incorporated in the deed, above referred to:
a. The party of the second part for themselves, their heirs and assigns hereby covenant, promise and agree to and with the party of the first part and her heirs and assigns, that they will not suffer or permit said premises to be used for any purpose other than a private dwelling place.'
On September 21, 1956 Mrs. Saymon executed a deed to plaintiffs. In spite of language of the contract calling for the restriction in question to be incorporated in the deed, that document is completely silent about any restriction and therefore terminated the contract's requirements. Caparrelli v. Rolling Greens, Inc., 39 N.J. 585, 590, 190 A.2d 369 (1963). However, shortly after taking title plaintiffs demonstrated their belief that the covenant had some degree of legal effect; on November 18, 1960 they obtained from Mr. and Mrs. Beardslee a modification agreement permitting changes in the house at 20 Riverside Drive to permit three-family use. This agreement also contains the same language (with minor and unimportant changes of form) quoted above from the agreement of August 1, 1956 running from Mrs. Beardslee and her husband to Mrs. Saymon. Plaintiffs never converted the house for three-family use; that is, they never acted upon the modification grant of November 18, 1960, and that grant was not recorded until July of 1965, apparently...
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