Radey v. Parr

• Decision Date: 20 February 1931
• Parties: RADEY et al. v. PARR et al.
• Court: New Jersey Court of Chancery

153 A. 628

RADEY et al.

v. PARR et al.

Court of Chancery of New Jersey.

Feb. 20, 1931.

Syllabus by the Court.

The doctrine of implied covenants, as exemplified in Lennig v. O. C. Ass'n, 41 N. J. Eq. 606, 7 A. 491, 56 Am. Rep. 16, does not embrace the conveyance of a lot with reference to a filed map which in no manner suggests restricted use of any of the lots on the tract, even though the vendor by parol represents to the purchaser that the tract is to be wholly devoted to residential purposes, and a sign board on the tract measurably indicates that purpose.

Syllabus by the Court.

Our court of last resort has determined that in this state servitudes cannot be imposed upon land by parol transactions beyond the extent which has been recognized by the English chancery.

Syllabus by the Court.

The exceptional circumstances in which parol engagements may be effective to compel the owner of real estate to forego the benefits of his legal title are embraced in three situations: (1) A parol contract for the sale of real estate which has been part performed by delivery of possession. (2) Actual, positive fraud, as distinguished from moral wrong. (3) Where the parol promise is admitted in the answer and the benefit of the statute is not at the same time claimed.

Syllabus by the Court.

Restrictive covenants in a deed of conveyance, which are expressly reserved for the benefit of the vendor, cannot be enforced by the vendee or his assigns.

Additional Syllabus by Editorial Staff.

Suit by John H. Radey and others against John T. Parr and others for an injunction.

Restraint pendente lite denied, and motion to strike out bill denied with directions.

Robert J. Tait Paul, of Camden, for complainants.

Boyle & Archer, of Camden, for defendants John T. and Teresa M. Parr.

S. Lewis Davis, of Camden, for defendants Collingswood Hosiery Mill and Edwards Const. Co.

LEAMING, Vice Chancellor.

The bill seeks to restrain defendants from erecting or operating a hosiery mill on certain lots in violation of an agreement by a former owner of the land to the effect that the lots would be used only for residential purposes.

At the time that agreement was made, defendant Parr was the owner of a tract of land at Collingswood, N. J., which he had laid out in streets and lots; the plan had been filed by him and approved by the borough commissioners. The tract comprised twenty-two lots (all owned by Parr) of suitable size and locations for residential purposes; none of the lots have yet been built upon. Complainant Radey purchased from Parr lot No. 22, and complainant Herold lot No. 8, in reliance upon the representation of Parr that the tract was to be maintained as an exclusive residential tract. Defendant the Collingswood Hosiery Mill has since purchased from Parr lots 9 to 14, inclusive, with knowledge of Parr's representation to complainants, and that company now proposes to erect on those lots and operate a hosiery mill; this mill will be directly in front of the lots owned by complainants.

At the return of an order to show cause for preliminary restraint a written stipulation of facts has been agreed upon by the parties.

That part of the stipulation presently to be considered is as follows:

"The Defendant, John T. Parr, at the time of the conveyances to the Complainants, Radey and Herold, by express representations, guaranteed unto them that the tract in question was to be developed and maintained as an exclusively residential tract, and the prices charged by the Defendant, John T. Parr, were paid on the representation that the lots were purchased in an exclusively residential location and by reason thereof, according to said Defendant, John T. Parr, were worth the prices which were being asked, which varied from Two Thousand Dollars to Twenty-five Hundred Dollars.

"At or about the time the sales in question were made, but before the passage of title unto the respective purchasers, there was erected on the tract, facing Bettlewood Avenue, the main thorofare nearest the tract, a large sign with the plan of lots drawn upon the same, bearing the words—'Exclusive Locations,' in letters about ten inches high, and in smaller letters, approximately six inches high, the words—'Convenient Reasonable Attractive.'

"The Complainants, Radey and Herold, purchased the respective properties from the Defendant, John T. Parr, relying on the representations which said Defendant, John T. Parr, made that the tract was to be exclusively developed as a residential tract, and the Defendant, John T. Parr, thereafter continued to represent unto prospective purchasers that the tract was to be reserved exclusively for residential purposes, until the recent sale to the Defendant, The Collingswood Hosiery Mills.

"The Defendant, The Collingswood Hosiery Mills, or its Trustee, purchased Lots Nos. 9 to 14, inclusive, from the Defendant, John T. Parr, with the knowledge of the representations and warranties that had been made to the purchasers of Lots Nos. 8 and 22 by the said Defendant, John T. Parr, and with knowledge of the existence of the sign which was set upon the property, and also with knowledge of the restrictions which were in the Knight Estate Deed.

"The only lots sold by the Defendant, John T. Parr, on the tract described in the map, aforesaid, have been the two sales to the Complainants, Radey and Herold, and the alleged sale or agreement to sell to the Defendant, The Collingswood Hosiery Mills; no houses or buildings have been erected on any of the lots sold."

At the argument it was conceded that the representations of Parr referred to in the stipulation above quoted were by parol.

Complainants contend that the sign referred to in the stipulation, in connection with the parol representations of Parr, invoke the doctrine of implied covenants against business uses, within the principles defined in Lennig v. Ocean City Ass'n, 41 N. J. Eq. 606, 7 A. 491, 493, 56 Am. Rep. 16; Bridgewater v. Ocean City Railroad Co., 62 N. J. Eq. 276, 49 A. 801, affirmed 63 N. J. Eq. 798, 52 A. 1130; and Bridgewater v. O. C. Ass'n, 85 N. J. Eq. 379, 96 A. 905. These Ocean City Cases are based upon a filed map with reference to which conveyances of lots were made. That map,...