Morris & Morris v. Tuskaloosa Manufacturing Co. , 83 Ala. 565 ( 1887 )

STONE, C. J.

— Baugh, Kennedy & Co., copartners, owned a large tract of land in the country, on which they had erected and were operating cotton-mills, a private enterprise. They sold to one Cree a half acre of their lands, described by metes and bounds — the contract of sale expressing certain reservations in the grantors. Two deeds to Cree are found in the transcript. The first bears date December 10, 1875, and purports to have beén executed by Baugh, Kennedy & Co. in their partnership name. It is, in form, an ordinary deed of bargain and sale, with covenants of warranty implied from the words “grant, bargain, sell and convey.” It contains this condition in the habendum clause, declared to be “absolute and perpetual, viz., that said lot is to be used by the party of the second part [Oree], his heirs and assigns, as a residence only, and not for the purpose of a trading-house, or house or place for the sale of groceries, liquors, or merchandise of any kind or description whatever.” This paper, perhaps, failed to convey the legal title, for more reasons than one, but we need not specify them.

Baugh, Kennedy & Co. became bankrupt, and their assignees, reciting that Cree had paid the purchase-money, ten dollars, to the said Baugh, Kennedy & Co., conveyed the lot to Cree by quit-claim deed, bearing date in 1879. That deed contains “the following conditions and reservations: the said lot or parcel of land to be used by said vendee only as a residence, or homestead, and not otherwise; and in particular, no mercantile transaction, or other business by any person occupying the same.” Cree, by deed without covenants, dated in 1883, conveyed the lot to Morris, one of the appellants, who, in company with his son, commenced to do a mercantile business on the lot.

The lands on which the cotton-mills were situated — the entire tract which had been of the estate of Baugh, Kennedy & Go. — together with everything” connected with the manufacturing enterprise, were sold at bankrupt sale, and a company became the purchasers, and received the conveyance. They thereupon incorporated themselves under the name of the “Tuskaloosa Manufacturing Company,” and are now operating the mills in that name. The present bill, filed by the corporation, prayed and obtained an injunction against Morris & Morris, restraining them from conducting a mercantile business on said lot; and at the hearing, the injunction was made perpetual. From that decree the present appeal was prosecuted. The sole question is, whether the reservation in the deed should be enforced by injunction. The attack is made on the right, not on the remedy; for, if the right be conceded, and its enforcement be not against public policy, there is no question that injunction is the only redress which is efficient and adequate. — Parkman v. Aicardi, 34 Ala. 393; Webb v. Robbins, 77 Ala. 176; McMahon v. Williams, 79 Ala. 288.

The following facts are clear and indisputable: Baugh, Kennedy & Co. owned the lands in fee. Both parties to this controversy claiming derivatively from them, each is estopped from disputing their title. Owning the land in fee, they could not be compelled to sell or dispose of it, except by the assertion of the right of eminent domain, not pertinent to this case, nor claimed to be. Having' the right to sell, that company could sell and convey a fee, or less than a fee; and the quantum of interest they would sell and convey, must, of necessity, have depended on the agreement they and the purchaser might make. They sold and conveyed a title limited in its use, with a restriction that it should not be employed as a place for the sale of merchandise. The purchaser accepted the conveyance, with this limitation imposed on his right of use. He can not complain, for he purchased and paid for only a qualified use. And the limitation being expressed in the face of his title, all men coming in under him are charged with knowledge of it. — Johnson v. Thweatt, 18 Ala. 741; Dudley v. Witter, 46 Ala. 664. The benefit of this reservation, or servitude, follows the lands of the seller — the dominant estate — into whose hands soever it may-pass, and against any and all persons who succeed to the servient estate, with notice, actual or constructive, of the limitation or servitude resting upon it.— Washb. Easements, (4th. Ed.) 37; Webb v. Robbins, 77 Ala. 176; McMahon v. Williams, 79 Ala. 288.

The real contention in this case is, that the reservation or limitation was incorporated in the deed for the purpose of retaining in the manufacturing company a monopoly in the .sale of merchandise; that such monopoly is contrary to public policy, and that the court of chancery, which is a court of conscience, will not lend its aid to the perpetuation of such a scheme. The authorities mainly relied on in support of this argument are, Trustees of Columbia College v. Thacker, 87 N. Y. 313; s. c., 41 Amer. Rep. 365; and Foll's Appeal, 91 Penn. St. 434; s. c., 36 Amer. Rep. 671. In the first of these cases, two land proprietors owned adjacent lands in the city of New York. The lands were high up town, beyond the range of business enterprises, and were well adapted to family residences. For mutual benefit they entered into a covenant, one with the other, “that only dwelling-houses should be erected thereon, and not to carry on, or suffer any kind of manufactory, trade, or business thereon.” There does not appear to have been any inducement to this contract and covenant, save the profit or comfort each was expected to derive from its observance, nor any consideration, other than the mutual agreement of the parties. No change of property took place, and neither acquired lands from the other. It was, at most, only an interchange of an easement or servitude each landholder imposed on lands previously owned, and still retained by him. In the growth of the city, business enterprises pressed upon the lands embraced in the covenant, and an elevated street railway was constructed, which passed the premises, and rendered them much less desirable as sites for private residences. A bill was filed by one of the parties to the covenant, to hold the other to its observance. Belief was denied, on the ground of the changed conditions. Among other things, the court, quoting many authorities, said: “Though the contract was fair and just when made, the interference of the court should be denied, if subsequent events have made performance so onerous, that its enforcement would impose great hardships upon him, and cause little or no benefit to plaintiff.”

One marked difference between that case and the one we have in hand is, that while, in our case, no change of condition is claimed, in that very great changes had taken place, and the ruling was based mainly on the change.

The case of Foll's Appeal, supra, was properly disposed of. Many reasons may be urged why relief should not have been granted in that case, not the least potent of which is the fact, that the purpose and prayer of the bill were to obtain specific performance of an executory contract for the purchase of bank-stock, a species of personal property. The court denied relief, because it appeared that the object of the purchase was to obtain control of the bank — a national bank — by becoming owner of a majority of the stock. The court said: “While the legal right of the complainant to buy up sufficient of the stock of this bank to control it in the interest of himself and Mends may be conceded, it is by no means clear that a court of equity will lend its aid to help him. A national bank is a quasi public institution. While it is the property of its stockholders, and its profits enure to their benefit, it was nevertheless intended by the law creating it that it should be for the public accommodation.” We might further extend the quotation, but consider it unnecessary. The decision might have been safely placed on the single ground, that the bill prayed the specific performance of a contract for the sale of personal property, and gave no special reason of merit why the general rule in such cases should be departed from. Equity will not, in general, decree the specific performance of contracts concerning chattels, unless such chattels have some “special value to the owner,” or are “unique, rare, and incapable of being reproduced in money.” — 3 Pom. Eq. §§ 1401 — 2.

Neither of these cases, in our judgment, sustains the position taken by appellant’s counsel. Neither of them presents the case of a purchase of a partial, qualified, or restricted interest in realty, taking possession under a conveyance containing reservations, and afterwards throwing off the restraints and maintaining a right to the unqualified use. Nor have we been referred to any case which asserts that doctrine. To recognize such doctrine, would be to place a very dangerous restraint on the power of alienation, which is supposed to be inherent in the ownership of property. In the cases of Webb v. Robbins, and McMahon v. Williams, supra, the same complaint of monopoly might have been urged as in this case. Yet, in each of those cases, we granted relief to the successor of the grantor, giving full effect to the easement or servitude, reserved to the grantor in the contract and conveyance. And Pomeroy, vol. 8, § lá42, says, that “restrictive covenants in deeds, leases and agreements, limiting the use of land in a specified manner, or prescribing a particular use, which create equitable servitudes on the land, will be specifically enforced in equity by means of an injunction, not only between the immediate parties, but also against subsequent purchasers with notice, even when the covenants are not of the kind which technically run with the land.” Sprague v. Snow, 4 Pick. 54; Cowdry v. Colburn, 7 Allen, 9; Parker v. Nightingale, 6 Allen, 341; Hubbell v. Warren, 8 Allen, 173; Brewer v. Marshall, 4 C. E. Green, 543; Washb. Easements, 114-5, et seq.

In what we have said above, we have founded the complainant’s right to relief on the reservations expressed in the deed to Cree, and have held that it imposed an infirmity and easement on the half-acre sold, in favor of the owner of the estate out of which it was carved. We have also held, that the reserved power and right followed the lands, into whose hands soever they have passed, and fastened the infirmity and easement on any and all persons who acquired title under Cree, the original grantee. We have not considered, and do not consider, whether the Tuscaloosa Manufacturing Company, a private corporation, has the power under its charter of engaging in a mercantile adventure. The absence of right in the defendants is fatal to their asserted claim, and the reserved rights of the grantors and their successors to have the servitude respected and enforced is none the less availing, even if it be shown that by incorporation the manufacturing company has lost all power to engage in selling merchandise. Denying power to one, does not confer it on the other.

Affirmed.

Somerville, J., not sitting.