Welitoff v. Kohl
| Decision Date | 14 October 1929 |
| Docket Number | No. 122.,122. |
| Citation | 147 A. 390 |
| Parties | WELITOFF v. KOHL. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Appeal from Court of Chancery.
Suit by Nathan Welitoff against Henry Kohl. From the decree (143 A. 628) complainant appeals. Modified.
Gross & Gross, of Jersey City (Isaac Gross, of Jersey City, of counsel), for appellant.
Edwards & Smith, of Jersey City (Edwin F. Smith, of Jersey City, of counsel), for respondent.
The respondent, Kohl, in 1923, conveyed in fee simple premises on Gifford avenue in Jersey City to one Jaffe; the deed (which was duly recorded) containing the following restrictive covenant, viz.: "Subject also to the condition that no building shall be constructed or erected upon said premises or any part thereof nearer than fifteen feet to the building line of Gifford Avenue." Jaffe gave Kohl a purchase-money mortgage for $60,000, which contained the same restriction. At the time of this conveyance the Improvements fronting on Gifford avenue in this location were exclusively high-class private residences all setting back 15 feet from the street building line, but neither prior to nor since the imposition of the restriction in the Kohl conveyance above mentioned were any such restrictions imposed on any of such adjoining and neighboring properties. At the time of the imposition of the restriction in the Kohl deed to Jaffe, Kohl did not own any property in the neighborhood which might be benefited by an observance of the restrictive covenant, nor does he now own any such other property, and the purchase-money mortgage above mentioned has been purchased from and assigned by him to a third party who has released the property in question from the restriction contained in such mortgage. Jaffe has since conveyed to Realty Security Corporation and the latter to South Center Realty Company by deeds each containing the restriction, and the South Center Realty Company has conveyed to complainant, Welitoff, by deed omitting the restrictive language. High apartment houses have now been erected on Gifford avenue on lots adjoining the lot in question (one on each side of it) and extending to within 9 feet of the Gifford avenue building line. Welitoff, desiring to likewise improve his lot, has applied to Kohl for a release of the restriction which Kohl has refused to give, asserting a right thereunder to prevent Welitoff's proposed improvement should he attempt to go forward with it. Welitoff is in peaceable possession of the property, and no suit has been commenced to enforce the restriction. He, therefore, filed this bill to quiet his title as against said alleged restriction, praying the court to decree that the restriction has no binding effect upon his title to said premises and that such title is free, clear, and discharged therefrom. The defendant respondent, Kohl, by way of counterclaim, prayed an injunction restraining a breach of the covenant.
The facts are all admitted, but Kohl claims an alleged interest in the preservation of the restrictive force of the covenant in that it will secure to him a practical means of collecting an additional consideration for the original grant which he made to Jaffe. He says that at that time he must be presumed to have accepted a less consideration for the conveyance which he made reserving the restriction than the consideration he might have received for a conveyance clear of restriction. He says this must be so because the courts have said that obviously a restricted property is less valuable than one which is unrestricted. Consequently, he says the difference between these two considerations is the measure of the damage he will, as he claims, be entitled to collect from Welitoff for breach of covenant should the latter violate the restriction in the manner proposed, and that, pending such collection and as security therefor, the restriction should not be held invalid and ineffective.
The learned Vice Chancellor in effect adopted this view and advised the decree appealed from, whereby the injunction asked for by the counterclaim was denied and the relief prayed for in the bill of complaint, thereby declaring the restriction invalid and ineffective, was granted, but "upon condition that Kohl be reimbursed by Welitoff for so much (the amount to be ascertained by further proceedings in open court or upon a reference) as he may be able to prove he sacrificed by way of consideration through the imposing of such restrictive covenant upon said premises."
We think that the injunction asked by the counterclaim was properly denied, and that the relief prayed for in the bill to quiet complainant's title was properly granted, but that it was error to impose the condition for so-called reimbursement.
The relief prayed for in the bill is exactly what the act (1909) prescribes under the circumstances here admitted to exist, but (even assuming that Kohl would have the right to recover substantial damages for a breach of the covenant when and if such breach should occur, which, for the reasons hereinafter pointed out, under the circumstances here existing, he would not) the imposition of the condition is wholly beyond the authority conferred by the act and would also seem to be equally beyond the jurisdiction of the court of chancery.
Section 1 of the act (P. L. 1909, p. 233 [4 Comp. St. 1910, p. 5405, § 16]) provides: "When any person is in peaceable possession of lands in this State, claiming to own the same in fee simple under a deed of conveyance therefor, * * * and in such deed there is no covenant, condition or agreement for the forfeiture and payment of sums of money or penalties on breach thereof, or restrictions, and it is claimed or asserted by anyone that said lands are subject to covenants, conditions or agreements for the forfeiture and payment of sums of money or penalties on breach thereof, or restrictions, contained in earlier deeds in the chain of title, and no suit shall be pending to enforce or test the existence of validity of such covenants, conditions, agreements or restrictions, it shall be lawful for such person so in possession to bring and maintain a suit in the Court of Chancery to settle the existence and validity of such covenants', conditions, agreements or restrictions, and to clear up all doubts and disputes touching and concerning the same," etc. And section 6 (4 Comp. St. 1910, p. 5407, § 21) provides that the final determination and decree in such suit shall fix and settle the rights of the parties with respect to the existence and validity of such covenants, conditions, agreements, and restrictions. This latter section is...
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