Weiser v. Freeman
| Decision Date | 31 January 1910 |
| Docket Number | 243 |
| Citation | 75 A. 1021,227 Pa. 78 |
| Parties | Weiser v. Freeman, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 8, 1909
Reargued January 20, 1920
Appeal, No. 243, Jan. T., 1908, by defendant, from decree of C.P. No. 4, Phila. Co., March T., 1907, No. 2,771, on bill in equity in case of Henry S. Weiser and Henry Hendricks v George C. Freeman. Reversed.
Bill in equity for an injunction. Before AUDENRIED, J.
The facts are stated in the opinion of the Supreme Court.
Error assigned was decree awarding injunction.
The decree of the court below is reversed and the bill is dismissed at the costs of the appellees.
Preston K. Erdman and Charles B. Joy, with them Paul Freeman, for appellant. -- The clause mentioned by the trial judge created a building restriction in the nature of a covenant and not a condition. The grantor and his heirs have no right of entry for condition broken, and cannot enforce a forfeiture King v. Ry. Co., 99 Va. 625 (39 S.E. Repr. 701); City Mission v. Appleton, 117 Mass. 326; Paschall v. Passmore, 15 Pa. 295; Bradley v Trust Co., 7 Pa. Superior Ct. 419; Fidelity Ins., etc., Co. v. Fridenberg, 175 Pa. 500; Clark v. Martin, 49 Pa. 289; Crofton v. St. Clement's Church, 208 Pa. 209; Orne v. Fridenberg, 143 Pa. 487; Cassidy v. Mason, 171 Mass. 507 (50 N.E. Repr. 1027); Post v. Weil, 115 N.Y. 361 (22 N.E. Repr. 145); Meigs v. Lewis, 164 Pa. 597; Landell v. Hamilton, 175 Pa. 327; Ayling v. Kramer, 133 Mass. 12; Watrous v. Allen, 57 Mich. 362 (24 N.W. 104).
In Pennsylvania, where a building restriction is created by words apt at common law to create a condition, all rights, including any right of re-entry, pass with the conveyance of the dominant tenement, and do not remain in the original grantor and his heirs after they have conveyed away all their interest in the dominant tenement. The right to enter for condition broken passes as an appurtenance to the dominant tenement: McKissick v. Pickle, 16 Pa. 140; Fidelity Ins., etc., Co. v. Fridenberg, 175 Pa. 500; Slegel v. Lauer, 148 Pa. 236.
Therefore, we submit that Mifflin and his heirs have no right to re-enter even if this were held to be a condition, but that all rights are now vested in the dominant tenement, viz., No. 1208 Walnut street. The owners of that property, viz., the dominant tenement, have not complained of the breach of the restriction and consequently the plaintiffs cannot do so.
As examples of conditions enforced by the owner for the time being, where of conditions enforced by the owner for the time being, where the restriction was in the form of a condition, see also: Hansell v. Downing, 17 Pa.Super. 235; Clark v. Martin, 49 Pa. 289; Crofton v. St. Clement's Church, 208 Pa. 209.
Considered as a condition, the condition was broken in 1894 and 1904 by the erection of buildings which violated its terms. That neither the plaintiffs, nor the defendant, were the owners of their respective properties, when this condition was first broken: and considered as a common-law condition, when once broken it is gone forever: Dumpor's Case, 4 Coke's Reports, 119; Sharon Iron Co. v. Erie, 41 Pa. 341.
The plaintiffs' lot and defendant's lot have belonged to separate owners for over fifty years. The plaintiffs' lot could not be held responsible for violation of the restriction on the defendant's lot, the plaintiffs' lot having no part therein and not aiding it in any way.
In England this clause would be void as offending against the rule against perpetuities: Dunn v. Flood, L.R. 25 Ch. Div. 629.
There being no suggestion or intimation in this case that the heirs of the original grantor have taken any action upon the break of this restriction, the plaintiffs have not the right to an injunction. The possibility of danger is too remote: Crofton v. St. Clement's Church, 208 Pa. 209.
John G. Johnson, with him Randolph Sailer, for appellees. -- The condition in the Mifflin deed of 1828 is a technical common-law condition, for breach of which the grantor and his heirs may enter and enforce a forfeiture: Gray v. Blanchard, 25 Mass. 284; Clapp v. Wilder, 176 Mass. 332 (57 N.E. Repr. 692); Smith v. Barrie, 56 Mich. 314 (22 N.W. 816); Pabst v. Hamilton, 133 Cal. 631 (66 Pac. Repr. 10); Hamilton v. Elliott, 5 S. & R. 375; Sheaffer v. Sheaffer, 37 Pa. 525; Lehigh Coal & Navigation Co. v. Early, 162 Pa. 338; Fritz v. Menges, 179 Pa. 122; Sharon Iron Co. v. Erie, 41 Pa. 341; Post v. Weil, 115 N.Y. 361 (22 N.E. Repr. 145); Westenberger v. Reist, 13 Pa. 594; Watrous v. Allen, 57 Mich. 362 (24 N.W. 104).
The condition has not been destroyed nor the right of reentry lost by the heirs of Samuel Mifflin, by reason of any violation of its terms, nor is there any evidence in this case that the condition was ever broken. If such evidence did exist, it would not avail the defendant: Lehigh Coal & Nav. Co. v. Early, 162 Pa. 338; Lynch v. Gas Co., 165 Pa. 518.
Forfeiture for breach of condition would involve the land of the plaintiffs, and they are entitled to equitable protection by injunction to prevent this result.
In the United States common-law conditions do not offend against the rule against perpetuities, whatever may be the rule in England: Hopkins v. Grimshaw, 165 U.S. 342 (17 S.Ct. Repr. 401).
The danger to appellees of the loss of their entire estate by breach of condition is constant and imminent, and entitles them to an injunction: Hood v. Penna. Society, 221 Pa. 447; Campbell v. Shrum, 3 Watts, 60; Blank v. Kline, 155 Pa. 613; Kelly v. Ry. Co., 200 Pa. 229; Whitney v. Union Ry. Co., 77 Mass. 359; Parker v. Nightingale, 88 Mass. 341; Linzee v. Mixer, 101 Mass. 512.
The words of the deed of 1829 from James Cooper to Sarah K. Carpentier, read in the light of the surroundings of the parties and subject to the grant, disclose a clear intent to create a restriction over No. 1210 Walnut street in the nature of a covenant running with the land of plaintiffs, which equity will enforce by injunction: Landell v. Hamilton, 175 Pa. 327; Muzzarelli v. Hulshizer, 163 Pa. 643.
Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ., on reargument.
In 1825, Samuel Mifflin purchased at sheriff's sale a lot of unimproved land situated on the southeast corner of Dean (now Camac) and Walnut streets, in the city of Philadelphia containing in front on Walnut street sixty-four feet and extending in depth southward 110 feet to Chancellor street. When he made this purchase he resided with his wife in a house which formed part of her separate equitable estate. It stood on the lot now known as No. 1208 Walnut street, east of and immediately adjoining the vacant land which Mifflin had purchased at sheriff's sale. In 1827 he conveyed to John Bonsall the western portion of this land, containing in front on Walnut street twenty-two feet and extending southward of that width, along the east side of Dean street, 110 feet to Chancellor street. That lot, however, is not involved in this controversy. In 1828, Mifflin sold to James Cooper the remaining portion of the land which he had purchased at sheriff's sale. The lot sold to Cooper contained in front on Walnut street forty-two feet and extended of that width southward 110 feet to Chancellor street. In the conveyance to him the following appears in the habendum clause: "Under the condition that no building or part of a building, other than steps, cellar doors, eaves, cornices, etc. (as specified in a certain indenture recorded in deed book, M.R. No. 13, p. 491), shall be erected on said lot within three feet of the line of the said Walnut street and under the condition also that no building or part of a building or other obstruction (except a bath house and privy and walls or fences not exceeding eight feet in height from the level of the ground) shall be built or erected on the easternmost twenty-one feet of the said hereby granted lot further south than fifty-nine feet from the original line of the said Walnut street." Upon the land purchased from Mifflin, Cooper erected two contiguous dwellings, one of them known as No. 1210 and the other as No. 1212 Walnut street. The house No. 1210 stands upon the eastern half of the ground and No. 1212 upon the western half. The house No. 1210 is twenty-one feet wide, is built without back buildings and lies wholly north of the line parallel with and fifty-nine feet south of the original line of Walnut street. The land between the south end of the house and Chancellor street was left open, except for privy and walls less than eight feet high, in accordance with the restriction in the deed from Mifflin to Cooper. The main building of the house No. 1212 as constructed by Cooper was twenty-one feet wide and forty-four feet deep. It had back buildings which extended southward about fifty-one feet and were in part eight feet wide and in part fourteen feet six inches wide. The western wall of this house contained no openings for windows. The back buildings were lighted by windows in their east wall. In 1829, Cooper and wife conveyed to Sarah K. Carpentier the lot of ground on which the house now known as No. 1210 has been erected. The deed to Mrs. Carpentier recited the conveyance to Cooper by Mifflin of the forty-two feet wide lot under the condition which has been quoted above, and granted the eastern half of the lot to Mrs. Carpentier, to have and to hold "under the conditions aforesaid." The defendant is now seized in fee of the house and lot known as No. 1210 Walnut street, his title thereto relating back to that of Mrs. Carpentier. Each deed in his chain of title recites that the property is subject to the condition as set forth in the deed from Mifflin to Cooper,...
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