Blum Bros. v. Berg ( 1914 )

Opinion by

Henderson, J.,

There is no ambiguity in the ninth paragraph of the lease from Dobson to Blum Brothers. It is there expressly agreed that the lessor shall not break through or suffer or permit to be broken through by anyone at any time during the continuance of the lease the west wall of the building to which it refers. When the appellants became the purchasers of the Dobson building they not only had notice of the tenancy of Blum Brothers but by the terms of the deed to them acquired title “under and subject nevertheless to all the terms and conditions, covenants, renewals, rights and privileges of the lease from Dobson to Blum Brothers.” As a result of their purchase they held the property bound by the covenant of Dobson with respect to the west wall. Under such circumstances equity will compel a purchaser either to specifically execute the covenant of the former owner or will restrain the purchaser from violating it irrespective of the consideration whether the covenant is or is not one which runs with the land. A party taking with * notice of an equity takes subject to that equity, and the purchaser of an estate who has notice of an existing right in or connected therewith held by a third party is liable in equity to the same extent and in the same manner as the person from which the purchase was made. Where, therefore, an owner of land enters into a covenant concerning its use and the land is afterward sold to one who has notice of the covenant the purchaser will take the premises bound by the covenant and is subject to be compelled in equity to observe its terms: Daniels v. Davison, 16 Ves. 249; Tulk v. Moxhay, 11 Beav. 571; Whitney v. Union Ry., 11 Gray, 359; Barrow v. Richard, 8 Paige, 351; Tallmadge v. East River Bank, 26 N. Y. 105; Columbia College Trustees, etc., v. Lynch, 70 N. Y. 440; Winfield v. Henning, 21 N. J. Eq. 188; Shields v. Titus, 46 Ohio, 528; Willoughby v. Lawrence, 116 Ill. 11; St. Andrews Lutheran Church’s App., 67 Pa. 512; Bald Eagle Valley R. R. Co. v. Nittany Val. R. R. Co., 171 Pa. 284; Electric City Land, etc., Co. v. West Ridge Coal Co., 187 Pa. 500; Parker v. Nightingale, 6 Allen, 341; 3 Pomeroy’s Equity Jurisprudence, sec. 1295. When the appellants made an opening in the west wall of the Dobson building they violated the contract between Dobson and the appellees and standing as they do in Dobson’s place with reference to the lease became subject to the application of the plaintiff for equitable relief. It is not pretended that the defendants had any justification for disregarding the covenant made by Dobson, and the court acted clearly within its equitable authority in granting the injunction to restrain any additional violation of the agreement not to make or permit any others to make openings in the west wall. The intention of the defendants to make other openings may be inferred from the making of one opening. This act was in disregard of the covenant in the lease for the plaintiff’s protection and may be assumed to be the expression of an intention to wholly ignore the restriction on the defendants’ title during the continuance of the Blum Brothers lease.

The appellants defend against the decree on the ground that the plaintiff does not come into court with clean hands. This defense arises out of the eighth paragraph of the lease between Dobson and Blum Brothers wherein it is provided as follows: “The party of the second part may make changes, alterations, additions and improvements to the premises hereby demised. Provided however that the party of the second part shall not remove the light well from the ceiling of the second floor to the roof, if its removal in any way interferes with or deprives Berg Brothers, the tenants of the first and second floors, of light or any other right they may be entitled to. Neither shall the party of the second part make any changes, alterations or improvements that will in any way interfere with, damage, molest or injure any of the other tenants of the building.” The appellants allege that the plaintiff made openings in the east wall of the Dobson building from a building occupied by them adjoining the Dobson building and that as a result of the making of these openings the rate of insurance on the goods of the defendant in the basement and first and second floors of the Dobson building was increased. They also contend that the plaintiff changed the location of some machinery in the sub-basement of the Dobson building thereby increasing the heat and vibration in the floors occupied by the defendants. It is not questioned that the plaintiff had authority from Dobson to make the openings in the east wall. That authority was expressly given in writing at the time the lease was executed at which time there were other tenants in the Dobson building than Berg Brothers. The lease was dated May 26, 1902, and provides that the lessee assumes all responsibility of compelling the tenants of the third, fourth, fifth, sixth and seventh floors to vacate all the building. The use of the word “other” shows the intention to distinguish between Berg Brothers and the other occupants whose enjoyment of their respective tenements might be impaired by changes made by the new tenants. But if their case is covered by the provision quoted it is clear that it was not the understanding of the landlord that the prohibition apply to anything necessarily or probably following from the making of the openings. Both parties to the lease understood that the Blum Brothers building was to be connected with the upper floors of the Dobson building by openings. If the appellants’ contention on this branch of the case is to be sustained the permission to make the openings in connection with the provision against damage, molestation or injury becomes contradictory of and inconsistent with the purpose which both lessor and lessee had in mind with regard to the openings. Dobson was under no obligation to Berg Brothers to refrain from making openings in the east wall of his building and Berg Brothers stand in his place with reference to the title to the property and to the lease. Dobson made no complaint and was not in a legal or equitable situation to make complaint that the rates of insurance were increased because of the openings made in the east wall. None of the openings were made after Berg Brothers acquired title, and the injury of which they complain must have been in contemplation by Dobson and Blum Brothers when the lease was made or was a necessary incident of the change in the wall permitted by Dobson as to which the appellants have no standing to complain. Further complaint is made in regard to the change in the machinery in the basement. With respect to this the court found that the change consisted of the installing of modern machinery in place of old; that the additional machinery made no appreciable increase in the heat or vibration and that the new arrangement was really of benefit to the Dobson building. This change was made in the life of Dobson without objection on his part and evidently with his consent. In the face of the finding of fact by the learned trial judge this part of the appellants’ defense must be considered groundless.

With respect to a mandatory injunction the rule is different from that enforced in a prayer for a restraining injunction. It was said in Wakeling v. Cocker, 208 Pa. 651, that it requires a much stronger case to move a chancellor to put forth his strong arm to compel a positive act on the part of a defendant than to restrain him from committing a wrongful one. The same principle is expressed by the president judge of this court in McIntyre v. Jones, 9 Pa. Super. Ct. 543. The authority of a court of equity to issue a mandatory injunction is well established, but it is an authority to be exercised with great care and in the exercise of a sound discretion. The court has found that no actual or prospective damage to the plaintiff was proved in the testimony except the cost of filling up the opening in case the complainant became the tenant of the Dobson basement which cost would be about $25.00. In view of this finding we think the conclusion reached in Wakeling v. Cocker, supra, should control our decree. In that case there was a finding of fact that no serious injury had been done to the plaintiff and that whatever injury he had suffered could be compensated by an action for damages. So it is in this case. The complainant is standing on a legal right which entitles it to a restraining injunction, but in the absence of evidence of injury from the breach of the contract already committed by the defendants we are of the opinion that the case is not one which calls for a mandatory injunction. The decree is therefore modified by striking out as much thereof as commands the defendants to close up the opening made by them in the basement wall.

As modified the decree is affirmed at the cost of the appellants.