Supplee v. Cohen

• Decision Date: 15 April 1912
• Citation: 80 N.J.E. 83,83 A. 373
• Parties: SUPPLEE et al. v. COHEN et al.
• Court: New Jersey Court of Chancery

83 A. 373

80 N.J.E. 83

SUPPLEE et al.

v. COHEN et al.

Court of Chancery of New Jersey.

April 15, 1912.

Bill by William C. Supplee and another against Therese Cohen and another. Decree for complainants.

The bill seeks the enforcement of a restrictive building covenant. The covenant which complainants seek to enforce is found in a written agreement wherein defendants agreed to sell to complainant William C. Supplee a certain house and lot, and among other things covenanted that no building should be erected on vendors' adjoining lot nearer than three feet from the line which separated the two lots. Pursuant to the agreement of sale defendants subsequently conveyed the lot to complainant Helen F. Supplee, who is the wife of William C. Supplee; the conveyance being made to the wife at the request of her husband. In the deed of conveyance no covenant was inserted touching the engagement of defendants not to build within three feet of the line between the property sold and the property retained. Subsequently defendant Therese Cohen erected a dwelling upon the lot retained by her in such manner that, while the foundations and main body of the buildings are three feet distant from the division line between the two lots, an overhanging bay window and the eaves of the house project to a point less than three feet from that line. The decree now sought is to compel defendants to remove the overhanging bay window and eaves, or to remove the building so that no part of the eaves and bay window will be nearer than three feet from the division line between the two lots.

James H. Hayes, Jr., and U. G. Styron, both of Atlantic City, for complainants.

Bourgeois & Coulomb, of Atlantic City, for defendants.

LEAMING, V. C. The covenant contained in the agreement of sale, which covenant complainants now seek to enforce, is as follows:

"And further, the parties of the first part do hereby agree to and with the party of the second part that they shall so provide that no building shall be erected upon the lot adjoining said premises on the west, nearer than three feet from the party line between said lots."

Defendants urge that the deed of conveyance which was made pursuant to the agreement of sale was necessarily operative to discharge all obligations arising under the agreement of sale. I am unable to adopt that view. That effect should only be given to such stipulations in the agreement of sale as could be appropriately discharged by the deed of conveyance. By the agreement of sale defendants agreed to "so provide" that no building should be erected on the adjoining lot in the manner stated. That engagement could not be fulfilled or its fulfillment appropriately secured by a clause to the same effect in the deed of conveyance to complainant. The engagement was, in effect, that defendants would not at any time build upon the adjoining lot contrary to the manner specified and would prevent their grantees from so doing. A covenant in the deed of conveyance to complainants would not have been operative to prevent a grantee of defendants' adjoining lot from building contrary to the covenant, for a grantee of that lot would not be charged by the record with notice of a covenant in complainants' deed. An appropriate method of perpetuating the covenant contained in the agreement of sale would be by a covenant in any deed of conveyance defendants should thereafter make of the adjoining lot owned by them.

I am convinced that complainants were entitled to rely upon defendants' engagement to protect them against the erection of adjoining buildings without any new engagement for that purpose being made at the time of the settlement, in the absence of any evidence to the effect that at the settlement either party understood that the covenant in question was waived.

By a cross-bill defendants seek to have the covenant in question reformed, alleging that the real agreement between the parties touching the location of any building thereafter to be built on defendants' lot was with reference to the main body of such building and did not include a restriction against an overhanging bay window or eaves. The evidence is clearly insufficient to justify a decree of reformation.

It is also contended in behalf of defendants that, even though the covenant should not be reformed, the restriction touching the distance the "building" should be erected from the line must be understood to refer to the main body of the building and not to overhanging bay windows or eaves. I am unable to adopt that view. The covenant is that no building shall be erected nearer than three feet from the division line. The language used is entirely clear and exact and certain in its meaning, and in the absence of some circumstance sufficient to disclose that the parties used the language adopted by them in a restricted sense, the covenant must be understood in accordance with the natural...