Page v. Murray

• Decision Date: 08 February 1890
• Citation: 19 A. 11,46 N.J.E. 325
• Parties: PAGE v. MURRAY et al.
• Court: New Jersey Court of Chancery

19 A. 11

46 N.J.E. 325

PAGE

v. MURRAY et al.

Court of Chancery of New Jersey.

Feb. 8, 1890.

(Syllabus by the Court.)

On May 10, A. D. 1873, Marshall L. "Ward and Peter Gerbert entered into a written agreement with the complainant, Henry A. Page, by which they were permitted to extend a road, called "Valley Street," which they had opened in certain lands owned by them in Orange, over the lands of Page, and into and through Clark place, (a private way belonging to Mr. Page,) to Montrose avenue, in consideration of their entering into the following covenant with reference to the use of their land: "And the said parties of the first part, in consideration of the above, and of the sum of one dollar in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged as aforesaid, do hereby covenant, promise, and agree to and with the said party of the second part, his heirs and assigns, forever, that neither the said parties of the first part, nor either of them, nor their or his heirs or assigns, shall or will, within the space or term of twenty years from the day of the date hereof, erect or maintain, or suffer to be erected or maintained, upon the said lands and premises of the said parties of the first part, within the bounds and limits aforesaid, or upon any part thereof, any hotel, tavern, ale or lager-beer saloon, restaurant, livery stable, slaughterhouse, smith or tin shop, forge, foundry, furnace, machine-shop, steam-engine, hat factory, tannery, brewery, distillery, circus, or any factory for the production of glue, varnish, vitriol, ink, soap, candles, storage of turpentine, or any building or other erection for the carrying on of any other trade or business noxious, offensive, or dangerous to the neighboring inhabitants, or any place or building in which shall be sold or exposed for sale any malt, vinous, spirituous, or intoxicating liquors, nor within said space or term of twenty years erect or maintain, or suffer to be erected or maintained, upon said lands and premises, or upon any part thereof, any building or other structure which shall severally cost less than the sum of three thousand dollars of lawful money, except such outbuildings as shall be necessary or convenient for the same as a place or places of residence or of business; it being understood and agreed that the foregoing covenant, and every part thereof, shall be attached to the above-described lands and premises of said parties of the first part, and shall run therewith, and shall be embodied in all future conveyances of the same to be made by them, their heirs or assigns, during the space or term aforesaid; and that it shall be lawful not only for the said Henry A. Page, his heirs or assigns, but also for any other person or persons deriving title from him or them, or either of them, whether mediately or immediately, for any of the said lands and premises belonging to him or either of them as aforesaid, to institute and prosecute any suit or other proceeding, at law or in equity, for any violation, or threatened violation, of said covenant, or any part thereof."

On December 15, 1873, Messrs. Gerbert & Ward, with their wives, conveyed a portion of their lands, which were within the agreement referred to, to one Willard E. Howell, by deed, duly recorded, containing the following covenant by the grantee: "And the said party of the second part doth, for himself, his heirs and assigns, covenant to and with the said parties of the first part, their heirs, executors, administrators, and assigns, that neither the said parties of the second part, nor his heirs or assigns, shall or will, within the said space or term of twenty years next hereafter, erect or maintain, or suffer to be erected or maintained, upon said lands and premises, or any part thereof, any building or structure which shall not severally cost at least the sum of three thousand dollars of like lawful money, in addition to such outbuildings as shall be necessary or convenient for said house or houses as a place or places of residence; it being understood and agreed that the foregoing covenant shall be attached to the above-described lands and premises, and shall run therewith; and that it shall be lawful, not only for the parties of the first part, or either of them, their heirs and assigns, but for any other person or persons deriving title from them, whether mediately or immediately, for any of said lands and premises conveyed unto the said parties of the first part aforesaid, to institute and prosecute any suit, or other proceedings at law or in equity, for any violation, or threatened violation, of the said covenant, or any part thereof; and also that said covenant shall not be enforced personally against any person or persons not being the owner or owners of said above-described land and premises, or a part thereof, at the time of such violation or threatened violation of said covenant, or any part thereof." On June 19, 1877, Howell, together with his wife, by deed which was duly recorded, conveyed to Charles P. Jacqui a portion of the lands which had been conveyed to him by Gerbert & Ward. This deed did not contain any restrictive covenant, and did not refer to the agreement between Gerbert & Ward and Page. On May 3, 1880, Jacqui conveyed to one Scott, by deed duly recorded, but without restrictive...