Kotesky v. Davis ( 1959 )

355 Mich. 536 (1959) 94 N.W.2d 796

KOTESKY
v.
DAVIS.

Docket No. 5, Calendar No. 47,431.

Supreme Court of Michigan.

Decided February 20, 1959.

Ira D. Bare, for plaintiffs.

Howard J. Bueche, for defendants.

DETHMERS, C.J.

This is an appeal from a decree for specific performance of a land contract. Plaintiffs have paid the purchase price in full. Defendants refuse to convey and have served notice of intention to forfeit the contract on the ground that plaintiffs have violated its restriction reading as follows:

"The above land shall be used for residential and/or agricultural purposes only. The above land shall not be used as a storage or sales place for used autos, auto parts, trucks, junk, tin cans, paper, or garbage."

The alleged violation consists of plaintiffs' use of the parcel of land involved as a roadway for access from a highway to other residential property.

Defendants had owned other parcels adjacent or near to the one in question, but had sold them before entering into the contract with plaintiffs. The record does not disclose that defendants owned or had any interest in other property in that vicinity either at the time of trial, commencement of suit, or sale to plaintiffs, and it affirmatively appears to the contrary.

Nothing can be claimed for defendants' position here on the theory of reciprocal negative easement inasmuch as it is not alleged or shown that defendants or any other prior common owner of this and adjacent parcels had imposed restrictions during the period of such common ownership upon this or the other parcels.

"If the owner of 2 or more lots, so situated as to bear the relation, sells 1 with restrictions of benefit to the land retained, the servitude becomes mutual, and, during the period of restraint, the owner of the lot or lots retained can do nothing forbidden to the owner of the lot sold. * * * It must start with a common owner. Reciprocal negative easements are never retroactive; the very nature of their origin forbids. They arise, if at all, out of a benefit accorded land retained, by restrictions upon neighboring land sold by a common owner." Sanborn v. McLean, 233 Mich. 227, 229, 230 (60 A.L.R. 1212).

See, also, Eveleth v. Best, 322 Mich. 637.

As far as an express restriction in a land contract is concerned, the vendor's interest in the property generally will support the restriction while the contract remains executory and the vendor has an interest in preserving his security. Sloman v. Cutler, 258 Mich. 372. That vendor's interest of the defendants ended, however, when plaintiffs paid the purchase price in full and became, except for the question of violation of the restriction, entitled to conveyance. Support for the restriction on that basis ceased at that time.

"Restrictions are not favored in law." Putnam v. Ernst, 232 Mich. 682, 688; Johnson v. Fred L. Kircher Company, 327 Mich. 377, 382.

"Where a restriction is confined within reasonable bounds, and the party in whose favor it is made has an interest in the subject matter of the restriction, or others in privity with him have such interest, it will be sustained." 7 Thompson on Real Property (Perm ed), § 3571, citing Grigg v. Landis, 21 NJ Eq 494; and Los Angeles Terminal Land Co. v. Muir, 136 Cal 36 (68 P. 308). Defendants here are not shown to have an interest in the subject matter of the restriction or privity with others who have one, inasmuch as they own no other property, and did not at the time of sale to plaintiffs, which the restriction might benefit, and they retain no interest in the parcel in question. Such equity will not aid to enforce restrictions on the free use of real estate not favored in law.

Defendants' position is not helped by the fact of their ownership of neighboring parcels prior to the sale to plaintiffs on any theory of an interest in defendants in benefiting their previous grantees. As said in Godley v. Weisman, 133 Minn 1, 4 (157 N.W. 711, LRA1917A, 333):

"It may be conceded that where the owner of a lot subject to no building restrictions conveys it, and in the deed inserts restrictive covenants, those covenants cannot, in the absence of some general building scheme or plan, be regarded as inuring to the benefit of contiguous property previously conveyed by him, and prior grantees cannot enforce such covenants. De Gray v. Monmouth Beach Club House Co., 50 NJ Eq 329 (24 A 388); Mulligan v. Jordan, 50 NJ Eq 363 (24 A 543); Summers v. Beeler, 90 Md 474 (45 A 19, 48 LRA 54, 78 Am St Rep 416); Doerr v. Cobbs, 146 Mo App 342 (123 S.W. 547)."

Disposition of the case on the above grounds leaves it unnecessary to determine the question raised by defendants whether other persons are necessary parties to this action. Challenge to the propriety of including Murray Davis as a party defendant comes too late, when raised for the first time on appeal.

Decree affirmed, with costs to plaintiffs.

CARR, KELLY, SMITH, BLACK, EDWARDS, VOELKER, and KAVANAGH, JJ., concurred.