Nashua Hosp. Ass'n v. Gage

• Decision Date: 02 February 1932
• Citation: 159 A. 137
• Parties: NASHUA HOSPITAL ASS'N v. GAGE et al.
• Court: New Hampshire Supreme Court

159 A. 137

NASHUA HOSPITAL ASS'N

v. GAGE et al.

Supreme Court of New Hampshire. Hillsborough.

Feb. 2, 1932.

The evidence showed that the common grantor had laid the lots out into twenty-four building lots in 1850 and had sold them to various individuals, inserting condition in each deed against use for other than residential purposes. In intervening time, the nature of the neighborhood had largely changed, and uses contrary to restrictions had been made without objection. This practice began at least thirty years ago and had been incident of use of about twenty of the lots, and upon the filing of this bill to quiet title, as against claim of restrictions, owners of all but three of the lots allowed the bill to be taken pro confesso against them.

Exceptions from Superior Court, Hillsborough County; Matthews, Judge.

Bill in equity by the Nashua Hospital Association against Catherine A. Gage and others. The master's findings that defendants were estopped from asserting any claim against plaintiff were modified by the superior court, and plaintiff brings exception to the superior court's rulings.

Exception sustained, and decree for plaintiff.

Bill in equity to quiet the title to the plaintiff's land in Nashua. The case was sent to a master who found the facts.

In 1850, John H. Gage was the owner of a tract of land in the then outskirts of the village of Nashua, and laid the same out into twenty-four building lots. He sold the lots to various individuals, and in each deed inserted a condition against use for other than residential purposes, or building within a certain distance of the street line. In the intervening time the nature of the neighborhood has largely changed, and uses contrary to the restrictions have been made without objection from any one. This practice began at least thirty years ago and has been an incident of the use of about twenty of the lots.

The plaintiff now owns five of the lots upon which it maintains its hospital plant with the usual accessory buildings. Its use began in 1899, and has gradually increased since that time. Other facts are stated in the opinion.

The prayer of the bill is for a decree that the plaintiff holds its land free from the conditions, and that the defendants be enjoined from attempting to enforce the same.

The Gage heirs and the owners of all the lots were made parties. The heirs and the owners of all but three of the lots defaulted and as to them the bill was taken pro confesso.

The master ruled that the condition was for the benefit of the grantor and his heirs only, but also found that, if the, contesting defendants ever had any rights they had waived them, and that they had slept upon their rights. Upon these findings he ruled that they are now estopped from asserting any claim against the plaintiff.

In the superior court, Matthews, J., ruled that the restrictions were for the benefit of the several lot owners, and that, while they might be estopped as to past acts, they had the right to object to future violations of the conditions, and dismissed the bill. Transferred upon the plaintiff's exceptions to these rulings.

Hamblett & Hamblett and Robert B. Hamblett, all of Nashua, for plaintiff.

Doyle & Doyle, of Nashua, for defendants Luella J. and Jeremiah J. Doyle.

Frank B. Clancy, of Nashua, for defendant Lucy E. Shea.

John D. Warren, of Nashua, pro se.

PEASLEE, C. J.

Objection is made that the defendants' claim is not a cloud upon the title of the plaintiff! in any event, and that therefore the bill does not lie. If the restrictions are in force as claimed by the defendants, they constitute an incumbrance upon the plaintiff's property. Foster v. Foster, 62 N. H. 46. Whether they are now or ever have been in force as between these parties depends in part upon facts not shown by the recorded conveyances. The present proceeding is an appropriate one in which to have the facts found and a decree entered which will clear up the present indefinite state of the record. Hallett v. Parker, 69 N. H. 134, 39 A. 583, and cases cited.

The conveyances from the common grantor to the predecessors in title of all the present owners of lots on the Gage plan were upon condition, the terms of which were that: "In case of violation of either of the foregoing conditions on the part of said grantee or his heirs or assigns at any time hereafter this conveyance shall become void; the premises hereby conveyed shall be forfeited and shall be surrendered up to the person or persons to whom the same may revert." One claim of the plaintiff is that this is a covenant solely for the benefit of the grantor and his heirs, and that his grantees, either prior or subsequent to the deed to an offending party, took nothing by it. While the question does not appear to have been directly decided in this state, the reasoning of the court and the conclusions reached in Foster v. Foster, 62 N. H. 532, are based upon the idea that the grantor was the only party having interests growing out of the covenant. In considering the extent of the rights under the restriction as a breach of warranty in a deed later in the chain of title, no mention is made of any right of the other one hundred and four owners on the same street, holding under like restrictions, while the existence of the right of the grantor led to an order that before a new trial (which was ordered for other reasons) the original grantor should be cited in, there being an issue of abandonment raised by the defendant.

The earlier case, Burbank v. Pillsbury, 48 N. H. 475, 97 Am. Dec. 633, was cited in the Foster Case to another point; but any pertinence of the earlier case on this point was not suggested. The Burbank Case holds, first, that a recital in a deed that the grantee "agrees for herself and for her heirs and assigns" to forever maintain a certain fence amounted to a covenant running with the land "both ways," so that a later grantee of the land intended to be benefited could maintain assumpsit against a notified grantee of the original grantee for failure to keep the agreement. It also decides that, if the agreement implied from taking the deed were not to be treated as a covenant running with the land, it would be enforceable in equity as against all parties taking with notice.

Unless the situation in the Foster Case is to be differentiated from that in the Burbank Case, there is no apparent reason for not citing in the one hundred and four other owners, as well as the Amoskeag Company, in the Foster Case. The reasonable explanation of this situation is that the doctrine of the earlier case was not considered applicable to the facts of the later one; that the recital of the agreement and the condition inserted in the deed of the Amoskeag Company were thought to be solely for its own benefit.

The point as to other landowners could hardly have been overlooked, since it was urged in argument upon an earlier transfer of the same case (Foster v. Foster, 62 N. H. 46) that these rights constituted part of the incumbrance, while the defendant maintained that the deeds gave them no right at all. And upon the second transfer the claim of the defendant was reiterated. 142 Briefs and Cases, 429.

It would seem that these two cases are authority for the conclusion that, where a deed poll contains recitals of agreements by the grantee and his heirs, they may be treated as covenants running with the land; but where there is no such statement of undertaking by the grantee, or where the agreement is stated as a preamble to a condition subsequent, based upon restrictions upon the use of the property conveyed and with a provision for a forfeiture to the grantor and his heirs, there is nothing which runs with the land, and the rights" against the grantee are only such as are personal to the grantor and his heirs. If, in the Foster Case, the recital of the agreement of the grantee as to use, inserted in the deed as a preamble to a condition reserved to the grantor, did not create a right running with the grantor's land or a right enforceable by later grantees under the doctrine of the Burbank Case, much less does such a condition without any preamble whatever give rise to any rights, save those personal to the grantor and his heirs.

If this is the correct view of the law, the defendants have no standing. The bill has been taken pro confesso as to the grantor's heirs, and the only contesting parties are the present owners of three lots originally sold by him.

In First National Bank v. Portsmouth Sav. Bank, 71 N. H. 547, 53 A. 1017, the question whether mutual covenants concerning the use of land run with the land was left open; and the subject does not appear to have received further consideration in this jurisdiction. Elsewhere there has been a large amount of litigation over restrictive provisions in deeds, and the decisions relating thereto are very numerous. They are all collected and commented upon in an extended note in 21 A. L. R. 1281 et seq. Therefore it is not considered to be necessary to review in detail "that long head-roll of cases which it seems to be always thought necessary to cite in cases of this kind." James, L. J., in German v. Chapman, L. R. 7 Ch. Div. 271, 276.

The test for the right to claim the benefit of building restrictions inserted in the several deed of a lotted parcel of ground is now quite well defined, both in this country and in England. While there is still some conflict of authority and much diversity of reasoning, the fundamental requisites for reciprocal rights among such grantees, as laid down by the English Court of Chancery, have been generally recognized.

In Elliston v. Reacher, (1908) 2 Ch. 374, 384; lb. 665, the matter is stated as follows. "It must be proved (1) that both the plaintiffs and the defendants derive title under a common vendor; (2) that previously to selling the lands to which the plaintiffs and defendants are respectively entitled the vendor laid out his estate or a...