Dailey v. Beck's Executors , 1 Brightly 107 ( 1847 )

Gibson, C. J.

— The bent of my mind is, that the words relied on, create a covenant, though I have no little doubt on the subject. They appear to have been intended for more than description; for it seems to have been a substantial part of the contract, that the street should be opened to give access to the lot, without which it would have been of little value. It is described as bounded on the south “ by Beck street, to be laid open fifty feet wide, from Sixth to Seventh Street.” And the specification of the width seems to be matter of stipulation rather than of description; I am of opinion too, that this covenant while it remained unbroken ran with the land, though it related not to any thing to be done on the lot. But it is admitted by the pleadings, that it was broken in the time of the original grantors, and long before the plaintiffs purchased the property, and as there could, from the very nature of the covenant, be but one breach of it, there could be but one satisfaction. If there could be more, every succeeding day would give a new cause of action, and subject the grantor to interminable litigation. It results, that the whole injury was to be compensated in one action; and consequently that it could be maintained only by him who was owner at the time of the breach.

Demurrer to the fifth plea sustained, but the demurrers to the other pleas overruled; and judgment for the defendant.^*

* In Bellinger v. The Union Burial Ground Society, 10 Barr 135, the supreme court determined that a sale of a lot by a plan, on which a public street is laid out as one of tbe boundaries, and a conveyance describing it as a lot “ on Washington street, as the same shall hereafter be opened — and bounded on the south by said Washington street,” does not create a covenant, on which the grantors are liable; where the street was subsequently vacated by legislative authority, and the grantors entered upon and occupied the land over which it was laid out. Mr. Justice Coulter said — “the words must be understood to fix the terminus of the grant, and not a covenant that the public should keep the street open for ever — but even upon the concession of a covenant, it would seem that the defendants are discharged; the act alleged to be a disturbance or breach, is the act of the legislature, the sovereign power in the state — to whose acts, when within the pale of the constitution, all persons owe obedience as the law of the land.”

An action for the breach of the building covenant in a ground rent deed, cannot be maintained by the assignee of the ground rent, which was assigned to him after the breach occurred. Fisher v. Lewis, 3 Penn. L. J. 81.