Walker v. Renner , 60 N.J. Eq. 493 ( 1900 )

The opinion of the court was delivered by

Depue, Chief-Justice.

The bill in this case sets out that the complainants were owners of a tract of land situated at the top of the Palisades, in the county of Hudson; that the complainants, desiring to establish an attractive neighborhood for residences, caused a map of said property to be made, entitled “Map of El Dorado, Weehawken, Hudson County, N. J.,” which was filed in the office of the register of Hudson county October 27th, 1895. This map shows that the tract of land was laid out in streets, with lots designated thereon. Among the' lots so designated more than one hundred were marked as lots twenty-five feet front and rear and one hundred and five feet in depth. With'a view to sales, the complainants had a deed prepared and printed in blank, which contained certain building restrictions, among which is the following:

“And the party of the second part doth hereby further covenant and agree to and with the parties of the first part, their heirs and assigns, for and in behalf of himself, his heirs and assigns, that the lot [with a blank left for the letter s] hereby to be conveyed is not to be subdivided, and that no more than one residence is to be erected upon the same.”

By a deed dated September 12th, 1895, the complainants conveyed to one Frederick Gamm lots 15 and 16 by numbers, referring to the map. In the deeds for these two lots, in the clause of restriction, the word “lot” is left without any sign of plurality inserted. Hnder that deed Gamm erected a single dwelling on lots Nos. 15 and 16, treating them as one lot. Subsequently, on March 27th, 1896, the complainants conveyed to the said Gamm lots 13 and 14, adjoining 15 and 16 on the east, and fronting on the same street. They are described as lots 13 and 14 on the map, without any further. description. In the latter deed the language of the restriction is that

“the party of the second part hereby further covenants and agrees to and with the said parties of the first part for and in behalf of himself that the lots hereby conveyed is not to be subdivided, and that no more than one residence is to be erected upon the same.”

Gamm subsequently conveyed to the defendant, Renner, who commenced to erect a dwelling on each of the said lots. This bill was filed to enjoin the erection of more than one building on the two lots. The court of chancery, on the construction of this deed, granted the injunction prayed for. Hence this appeal.

The controversy in this case arises upon the construction to be given to the clause restricting the use of these lots. Restrictions of this character are valid, and are regarded as for the benefit of the owners of the tract to be improved and made profitable by sales of lots, and also for the advantage of persons who have become purchasers on the faith of the scheme of improvement adopted. Nevertheless, all restrictions upon the use of land conveyed in fee which restrain the grantee from exercising the rights of an owner are strictly construed. The vice-chancellor construes the restriction in the deed now in question for lots numbers 13 and 14 as restraining Gamm and his grantees from erecting more than one building on the two lots. This construction is based on the word “lots” and “upon the same” in the restrictive clause. This construction of the restriction, we think, is not justified.

The scheme of improvement adopted by the complainants, contemplated the sale of lots twenty-five by one hundred feet each, with no restriction on the use for building purposes, except that no more than one residence was to be erected upon each of such lots. This was the scheme of improvement on the faith of which others became purchasers of the lots in this tract of land. Purchasers who bought two lots were at liberty to erect a single dwelling on both lots, but a purchaser taking title for any number of lots was at liberty to erect upon each lot a residence, unless the restriction in the deed clearly restrained him from doing so. The language of this restriction is: “The lots hereby conveyed”- — that is, the two lots mentioned in the deed- — -“is not to be subdivided.” The division of the tract of land into lots twenty-five by one hundred feet was made by the complainants in their original scheme of improvement, which contemplated the use of each lot twenty-five by one hundred feet for a single dwelling. The language of the restriction in the deed now in question was not to the effect that no more than one building should be built upon these two lots, but it provides that the two lots “is not to be subdivided,” &c. In the use of the lots conveyed, the defendant, in proposing to erect a building on each lot as the lots were divided in the scheme of improvement, does not subdivide any lot. His purpose is to appropriate the two lots he had bought in compliance with the general plan of improvement adopted by the complainants.

Taking the restriction in the deed now in question in connection with the plan of improvement adopted by the complainants, we think that the restrictive clause in this deed should apply only where the purpose of the grantee is to subdivide the lots conveyed into lots less in size than designated on the map, and that the words that “no more than one residence is to be erected upon the. same” applied to each one of the lots conveyed by this deed, and not to both the lots as one tract, subject to the same restriction.

The order appealed from should be reversed.

For reversal — The Chancellor, Chief-Justice, Yan Syckel, Dixon, Garrison, Lippincott, Gummere, Collins, Bogert, Hendrickson, Adams, Yredenburgi-i, Yoorhees — 13.

For affirmance — Ludlow—-1.