Smith v. Reidy

• Decision Date: 09 May 1921
• Docket Number: No. 49/492.,49/492.
• Citation: 113 A. 774
• Parties: SMITH et al. v. REIDY.
• Court: New Jersey Court of Chancery

113 A. 774

SMITH et al.

v. REIDY.

No. 49/492.

Court of Chancery of New Jersey.

May 9, 1921.

(Syllabus by the Court.)

Suit by Nathaniel E. Smith and others against Mary A. Reidy for specific performance. Bill dismissed.

Samuel Koestler, of Elizabeth, for complainants.

John J. Stamler, of Elizabeth, for defendant.

BUCHANAN, V. C. Complainants, as vendors, file their bill for specific performance of a contract of sale to defendant of a certain lot located at or near Elizabeth, N. J. The contract was duly acknowledged by the complainant wife as required by the statute. Deed has been tendered and refused.

The written agreement provided that complainants should convey free of all incumbrances. The complainant husband acquired title to the lot in question (which is part of a large real estate development tract) from the El Mora Land Company by bargain and sale deed without covenants or recital of any incumbrances. The El Mora Land Company was the grantee of the entire tract from one Doolittle, to whom it had been conveyed by the Old Colony Land Company.

In the deed from the Old Colony Land Company Doolittle bound himself, and his successors in title, to his grantor, and its successors in title, by certain restrictive covenants. This deed was duly recorded, and the covenants are, therefore, to the extent of whatever force and effect they may have, binding upon complainant and constitute incumbrances, at least prima facie, upon the title which complainants offer to defendant. For this reason defendant refused to accept the deed and pay the purchase money, and now contends that decree of specific performance should not be made against her.

The deed to Doolittle refers to a map of the tract laid out in blocks and lots, numbered, and specifically describes the premises thereby conveyed as—

"lots numbers 1 to 12, both inclusive, in block number 30; lots numbers 1 to 30, both inclusive, in block number 36; * * * lots numbers 1 to 22, both inclusive, in block number 49; also a gore of land of triangular shape formed by the intersection of Colonia road, Westfield avenue, and Princeton road, said gore being opposite block number 36."

It is this last mentioned "triangular gore" which is the lot comprised in the contract now before the court.

The covenants in question provide that neither Doolittle nor his successors in title shall cause or suffer the erection on any part of the said premises of any building except a dwelling house (and stable or garage) of a certain specified size and cost; that the front line of the house shall not be within 30 feet of the front line of the lot, and the foundations of the stable or garage not within 100 feet of the front line of the lot; the shortest street line of a lot abutting more than one street was to be deemed the front line of such lot. The covenants conclude with a specific provision that "the restrictions herein shall not apply to lots which are not at least one hundred feet deep and fifty feet wide," except that on none of such lots shall any nuisance be carried on, nor any manufacture or sale of liquor.

The defendant has not objected to the restrictions against nuisances, or the manufacture or sale of liquor, and by her answer consents to accept title subject to those restrictions, her objection to the title being to the building restrictions.

It seems very doubtful that any of the restrictions were intended to apply to the triangular gore, for one reason because the restrictive covenants specifically refer to "lots" and "blocks" and "lots numbered so and so" in blocks numbered "so and so," all as shown on the map, whereas the triangle is not numbered on the map either as a block or a lot, and is not referred to in the deed as a lot or block, but separately and expressly as "also a gore of land of triangular shape," etc. In addition, this triangle was, at the date of the deed to Doolittle, in actual use by the Old Colony Land Company for business purposes, namely, the purposes of its real estate business, and had on it a building which did not at all conform to the restrictions, either as to character or location; and this office building was continued in the same way by the new El Mora Land Company from that time (1905) down to a year or two ago, when it was accidentally destroyed by fire.

Furthermore, as to the building restrictions (which are the only ones which need be considered in this case), the deed expressly says that they shall not apply to any lots which are not at least 100 feet deep and 50 feet wide. The triangular gore is 56 feet wide at the base, and approximately 250 feet deep from the base to the point of the triangle, so that in one sense it might be called a lot at least 100 feet deep and 50 feet wide; but it certainly does not come within the description of a lot 100 feet deep and 50 feet wide, as it would be understood by the ordinary man. Such a lot would naturally and commonly be understood to be a lot 50 feet wide throughout an entire depth of 100 feet. The triangle in question does not comprise or contain any such rectangle of 50 by 100. Its width, at a distance of 100 feet back from the front line, is only about 35 feet.

I think there can be no doubt, therefore, that if defendant had taken title, and the present suit had been brought by a neighbor seeking an injunction against the breach of these covenants, such relief would be denied. It is thoroughly well settled that "courts of equity do not aid one man to restrict another in the use to which he may put his land, unless the right to such aid is clear"; and that where there is any doubt, from the language of the covenants, or from any other reason, whether the restrictions contended for actually apply to the lands in question, equitable relief will be denied. Fortesque v. Carroll, 76 N. J. Eq. 583, 75 Atl. 923, Ann. Cas. 1912A, 79; Rowland v. Andrus, 81 N. J. Eq. 175, 86 Atl. 391; Underwood v. Herman, 82 N. J. Eq. 353, 89 Atl. 21.

It does not necessarily follow, however, that because equitable relief would be denied in the enforcement of a doubtful covenant, a vendee who has contracted for a title without incumbrances will be compelled to accept a title where doubt exists as to whether or not it is subject to restrictive covenants. In the ordinary case a vendor must tender a marketable title, and a title that is defective or doubtful is not a marketable title, and equity will not compel the acceptance thereof by the vendee. On the same principle, it is obvious that where a vendee contracts for an unincumbered title, and there is doubt as to whether the title is...