Bradley v. Walker , 1891 N.Y. Misc. LEXIS 1968 ( 1891 )

McAdam, J.

The covenant was not a conveyance, within the statutory meaning of that term, respecting the acknowledgment of conveyances by married women. 1 Rev. St. p. 758, § 10. It did not purport to grant or convey any estate, and none passed, or was intended to pass, by it. It is somewhat analogous to the right conferred in McLarney v. Pettigrew, 3 E. D. Smith, 111, in which it was held that an agreement that beams might be inserted in the wall of plaintiff’s house, for the permanent support of the adjoining house, did not convey an interest in real estate, and did not require a writing. The same principle has been applied to party-walls. Bosworth, J., in Maxwell v. Bank, 3 Bosw., at page 146, said: “ We regard it as settled law that when the owners of adjoining lots agree, .though verbally, that each will erect a building or store on his own lot, and that the dividing wall shall be a party-wall, and shall be used to support the beams and roof of each building, and they build according to such agreement, and with a view to execute it, neither can remove or do anything to impair the ability or sufficiency of such wall, so long, at least, as the buildings continue in a condition to sub-serve in every substantial respect the uses for which they were erected. ” The covenant executed by Mr. and Mrs. Alvord and their neighbors indicated no purpose to convey. Its object is expressed in these words: “The parties to these presents have agreed with each other to improve their said lots * * * by leaving, eight feet * * * on the front thereof as an open space or court.”' It was intended to insure uniformity of construction in the entire block, that one might build his house back eight feet, without having the light, air, or vision cut off by projecting buildings on either side, and the execution of the plan, in consummation of the understanding, was all that was necessary to making it binding on those who agreed to it, or their successors in interest or estate. Such an agreement is a wise and beneficent one, alike beneficial to all the adjoining owners. The agreement was made July 14, 1846, and, though the title stood in the name of Mrs. Alvord, the husband, under then existing laws, had, by virtue of his marital right, the jus disponendi of the property until his marital relation ceased. He and his wife joined in the execution of the covenant. The record shows a proper acknowledgment by him, but the certificate as to her is not in conformity to the technical requirements of the then existing statute, in regard to the form of acknowledgment required by a married woman. The objection to the defective acknowledgment is personal to her, for she might at any time have corrected it by anew acknowledgment or deed of confirmation, which, by way of ratification, would have related back to the time when the act needing confirmation was performed. Ho intervening right or equity prevents this from being done now, if it were necessary, but it is not. Mrs. Alvord is still living, but has never repudiated the covenant, and does not seek to do so. The houses on the block have been built over 40 years, and all in conformity to the covenant.

Alonzo A. Alvord, the husband, did not die until 1862, and the houses were therefore erected and the agreement consummated during the life of the husband, whose agreement, even regarded as a conveyance, was valid, while he lived, by virtue of his exclusive right of control and of sale. Ewell, Lead. Cas. 478; 2 Kent, Comm. 132; Vartie v. Underwood. 18 Barb. 566. When the covenant was executed the land of the Alvords received a benefit, and on it was created a corresponding charge, which, like other charges recognized in equity, becomes effective when declared so by the courts. 2 Bish. Mar. Worn. § 212. A wife, even under the then existing law, might, by her sole act, charge her estate in equity under some circumstances in which she had not the power of conveyance. Id.; 2 Story, Eq. Jur. § 1399; and see cause collated in Voorhies’ Code 1859, p. 173. She charged it in this instance. It needed no conveyance or writing to create the easement, even if the right conferred arises to the dignity of that title. The act or consent of those in interest was sufficient. This is established by the case of Tallmadge v. Bank, 2 Duer, 614, affirmed 26 N. Y. 105, where the equity in regard to the manner of improvement and occupation of certain land grew out of a paroi contract made by the owner with the purchaser, and it was held binding upon a subsequent grantee with notice-, although his legal title was absolute and unrestricted. This ease reviews many authorities, and quotes Chancellor Cottenham as saying that, where a covenant of this character has been entered into, it would be most “unjust and unconscientious” not to enforce it. The opinion also quotes the case of Brewer v. Marshall, 19 N. J. Eq. 537, wherein the court agrees with Chancellor Gottenham in saying that “it will be found upon examination that these decisions proceed upon the principle of prevent-

ing a party having knowledge oí the just rights of another from defeating such rights, and not upon the idea that the engagements enforced create easements, or are of a nature to run with the land. ” Tallmadge v. Bank, supra, maintains this doctrine in its strongest aspect. In that case Davis exhibited a plan of intended location of lots on St. Mark’s place, showing that the houses were to be set back eight feet. Eo mention of this whatever was made in the conveyances. The court held that “it is to be presumed that they would not have bought and paid the money except upon this assurance. It is to be presumed that, relying upon this assurance, they paid a larger price for the lots than otherwise they would have paid. Selling and conveying the lots, under such circumstances and with such assurances, though verbal, bound Davis, in equity and good conscience, to use and dispose of all the remaining lots, so that the assurances upon which Maxwell and others bought their lots could be kept and fulfilled. This equity attached to the remaining lots, so that any one subsequently purchasing from Davis any or one or more of the remaining lots, with notice of the equity existing between Davis and Maxwell and others, the prior purchasers, would not stand in a different situation from Davis, but would be bound by that equity.” And the court further held “that the uniformity of the position of all the houses on St. Mark’s place was probably sufficient alone to put the defendant on inquiry.” See, also, Maxwell v. Bank, 3 Bosw. 124; Perkins v. Coddington, 4 Rob. (N. Y.) 647; Greene v. Creighton, 7 R. I. 1. One of the leading eases on this subject is Whitney v. Railway Co., 11 Gray, 363, where the same opinion is held in the following language: “In like manner, by taking an estate from a grantor with noti e of valid agreements made by him with the former owner of the property, concerning the mode of occupation and use of the estate granted, the purchaser is bound in equity to fulfill such agreements with the original owner, because it would be unconscientious and inequitable for him to set aside and disregard the legal and valid acts and agreements of his vendors in regard to the estate, of which he had notice when he became its purchaser. In this view the precise form or nature of the covenant or agreement is quite immaterial. It is not essential that it should run with the land.” The authorities, however, in this state, go so far as to hold that these covenants run with the land, and, without an assignment of the covenants, are enforceable, and any owner, as well as occupant, can enforce the riglit. Trustees, etc., v. Cowen, 4 Paige, 511; Brouwer v. Jones, 23 Barb. 153. One of the grounds upon which this right is put is: “When it appears, by a fair interpretation of the words of a grant, that it was the intent of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, such right will be deemed appurtenant to the land of the grantor, and binding.” Whitney v. Railroad Co., 11 Gray, 367; Hills v. Miller, 3 Paige, 255. “Cresswbll, J., seems to regard it rather as a negative servitude upon the land adjacent to the tenement than an operative easement in favor of the tenement itself.” Washb. Beal Prop. (4th Ed.) 649. On the general doctrine of the above cases, this court ordered a projection of the Burlington flats (in the same street) to be removed. DuBois v. Darling, 44 N. Y. Super. Ct. 436. And a defendant was enjoined from maintaining a tenement-house. Amerman v. Deane, 6 N. Y. Supp. 542. This doctrine has been somewhat extensively referred to by us, not merely to illustrate the principles upon which it stands, but for the purpose of showing that these covenants are held sacred in equity, and are enforced as a matter of strict justice. Injunctions in this class of eases are granted almost as of course, upon proof of a breach of the covenant. 3 Pom. Eq. Jur. p. 372, § 1342; Bisp. Eq. p. 514, § 461; and see Stewart v. Winters, 4 Sandf. Ch. 587. The Alvords compelled all the other property owners to build on the line, and held them to the agreement; and it is now claimed by their remote grantee that, although he had notice of the covenant, and knew of the prior equity, he can disregard it, and build out to the line of the street, and exclude the adjoining owners from light, air, and vision, on the technical ground that Mrs. Alvord was incompetent to contract, and that her husband’s power of control terminated with his death in 1862, and hence whatever vitality the covenant ever had ceased at that time. In other words, notwithstanding these facts, (1) that the covenant may have been valid in 1846; (2) that Mr. and Mrs. Alvord sold the property in 1857 with reference to it, and without repudiation; (3) that the covenant had been fully executed by the erection of buildings in conformity to its terms over 30 years ago, yet, in consequence of Mr. Alvord’s death in 1862, the covenant was spent, and is now inoperative. No logical reasons have been advanced to support such an extraordinary claim, and our attention has not been called to any direct authority which sustains the proposition stated. Thedefendant bought with knowledge of the covenant, and took subject to it. 2 Pom. Eq. Jur. p. 14; Hodge v. Sloan, 107 N. Y. 245, 250, 17 N. E. Rep. 335; Trustees v. Lynch, 70 N. Y., at page 450. It was binding on the Alvords, and is certainly valid as to him, a remote granted, charged with notice of the prior equity. Id.

We are next called upon to consider the objection urged by the defendant that 10 feet of the front of the building is not affected by the covenant. This triangular piece was purchased by Susan Alvord, November 23, 1853, to straighten the line of her lot, and the whole parcel was sold together as one lot, April 1, 1857; and it was built upon during that year, in conformity to the requirements of the covenant; and thus the entire structure is brought within its provisions by the principles declared in Tallmadge v. Bank, supra. The point as to change of character of the neighborhood is equally without merit. Where the use of land is restricted to private residences, and changes in the neighborhood unfit the property for that use, this circumstance may operate to defeat the covenant in that regard. Trustees v. Thacker, 87 N. Y. 311. The necessity presented for relaxing the rule in that case does not exist here. The covenant is of a different character, and falls within the principles decided in Lottimer v. Livermore, 6 Daly, 505, affirmed 72 N. Y. 174, in which it was held that a covenant for the enjoyment of light, air, and vision was not discharged by a mere change of neighborhood, as there was no reason why an adjoining property owner by that circumstance should have less of either than his covenant called for. The plaintiff established her right to equitable relief by injunction, and it was error to vacate the temporary writ. The order appealed from must therefore be reversed, and the application to continue the injunction granted, with costs. All concur.