Opinion
No. 52/7.
02-26-1923
FORT et al. v. FIELD.
Jehiel G. Shipman, of Newark, for complainants. Horace C. Grice, of Newark, for defendant.
Bill for Margaretta Fort and others, executors, etc., against Josie D. Field. Decree for claimants.
Jehiel G. Shipman, of Newark, for complainants.
Horace C. Grice, of Newark, for defendant.
FIELDER, V. C. Complainants are the vendors of lands in the village of South Orange under a written contract of sale wherein defendant is the purchaser. The contract covers more land than is involved in this controversy, defendant having accepted title to a part of the land she contracted to purchase, paying a portion of the purchase price, but having refused to take title to the balance thereof, on the ground that the title thereto is not marketable and the bill is filed to compel defendant to specifically perform her contract by taking title to the remainder of the land agreed to be conveyed.
Complainants' title and power to convey come through the last will and testament of former Governor John Franklin Fort, who died November 17, 1920, seized of all the land described in the contract. His will was duly admitted to probate in Essex county, and it is conceded that complainants can convey a good and marketable title, if the title held by Governor Fort was good.
John G. Vose owned a tract of land 250 feet front on the easterly side of Charlton avenue, by 200 feet deep on the northerly side of Raymond avenue, in which are included the two lots hereinafter called the Jewett lot and the Durbrow lot. The tract 250 feet by 200 feet was conveyed by Vose to Emeline M. Griffen by deed dated April 10, 1873, recorded May 13, 1873, in Book T-16 of Deeds for Essex County, p. 490, by which deed the grantee, for herself, her heirs and assigns, covenanted with Vose, his heirs and assigns, that the land conveyed should not at any time thereafter be used (among other things) "for the erection of any buildings of any kind or description, excepting one dwelling house with the appropriate gardens, cottage," etc., designating a number of outbuildings and structures which would be includedwithin the exception and concluding with the words "and other buildings and offices appropriate for a gentleman's country residence." The covenant provided that it should attach to the land and run with its title and be inserted in all future conveyances and other instruments whereby the title to the lands conveyed should be transferred or affected and that the covenant should forever thereafter be recognized, sustained, and upheld and that it should be lawful not only for Vose, his legal representatives or assigns, but also for the owner or owners of any of the property mentioned in the deeds thereinbefore recited (meaning ten deeds by which the land in question and surrounding lands, comprising in the whole a tract of about 210 acres which had been conveyed to Vose), to institute and prosecute any suit or proceeding at law or in equity, for a violation, or threatened violation, of the covenant.
The tract 250 feet front by 200 feet deep, conveyed by Vose to Griffen, was subdivided by subsequent conveyances. Governor Fort acquired title to that portion of it involved in this controversy, by two deeds, one from Kate R. Durbrow and husband, dated July 19, 1915, recorded July 19, 1915, in Book H-56 of Deeds for Essex County, p. 244, which conveys a plot on the northeast corner of Charlton and Raymond avenues, having a frontage of 125 feet on the easterly side of Charlton avenue, by 188.69 feet deep on the northerly side of Raymond avenue, and the other, for the lot adjoining on the north, from Josephine G. Jewett and husband, dated May 28, 1914, recorded May 28, 1914, in Book M-54 of Deeds for Essex County, p. 272, having a frontage of 108.30 feet on the easterly side of Charlton avenue, by 194.24 feet in depth. The land conveyed by both deeds formed a plot of land with a total frontage of 233.03 feet on the easterly side of Charlton avenue, by 188.69 feet in depth on its southerly side along Raymond avenue and 194.24 feet in depth on its northerly side, being but slightly less in area than as originally conveyed by Vose to Griffen.
The deed from Mrs. Durbrow contains a clause that
"The lands herein described and conveyed herein are conveyed by express agreement between the parties hereto, subject to building and other restrictions of record affecting the said lands and premises, if any."
The deed from Mrs. Jewett contains a clause that
"The party of the second part for himself, his heirs and assigns, hereby covenants and agrees that this conveyance is made subject to the covenants and restrictions set out in the deed recorded in Book T-16 of Deeds for Essex County, on page 490 et seq., in so far as said covenants and restrictions may, at the present time or hereafter, be operative or valid."
The lot purchased by Governor Fort from Mrs. Jewett was vacant, and immediately after its purchase he commenced the erection of a dwelling house thereon, which was completed about March, 1915, and in which he thereupon took up his residence and continued to live until his death. When he purchased the adjoining corner lot from Mrs. Durbrow in July, 1915, there was a dwelling house on that lot, facing Charlton avenue. Governor Fort moved that house from its foundation to the rear of the Durbrow lot, placing it on a new foundation facing Raymond avenue and leaving the old foundation remaining. The present situation, with respect to the plot conveyed by Vose to Griffen, is that the portion of it acquired by Governor Fort is now occupied by two dwelling houses and the foundation for a third.
The contract to convey set out in the bill of complaint included the Jewett lot and a portion of the Durbrow lot, with other property. Defendant accepted a deed from complainants for the Jewett lot and such "other property," but refused to accept a deed for the portion of the Durbrow lot covered by the contract, the sole ground for her refusal being that the erection of two dwelling houses, and the foundation for a third, constitute a violation of the covenant contained in the deed from Vose to Griffen restricting the lands therein described to a single dwelling house and that such covenant will prevent her from erecting a dwelling house on the corner of Charlton and Raymond avenues.
That the letter of the covenant has been violated must be conceded, but complainants contend that the covenant is a nullity and unenforceable as to the lands in question, because the population of South Orange has greatly increased since the restriction was imposed by the Vose deed in 1873 and the character of the neighborhood has so changed that the original plan or scheme of large country estates, which Vose had in mind, cannot be carried out; because it would be against public policy and in restraint of trade, considering the increase in population, housing conditions, and the change in the character of the neighborhood, now to enforce a restriction limiting the use of a plot of land 250 feet by 200 feet to a single dwelling; because persons deriving title through deeds from Vose have indicated no intention to enforce this restriction and similar restrictions affecting their adjacent property and have acquiesced in and permitted a violation of this particular restriction and of similar restrictions affecting adjacent property; and because there has been a general violation of covenants and restrictions, similar to the one in question, by those entitled to enforce this covenant and a general acquiescence in such violation by those concerned, which violation and acquiescence amount to an abandonment and estoppel.
It is alleged in the bill of complaint, admitted by the answer and shown by the evidence, that Vose conveyed various parcels of the 210-acre tract, without uniformity as to restrictions governing the number of dwelling houses to be erected upon the parcels thus conveyed and in many instances without any restriction of such nature; that the owners of lands embraced within the 210-acre tract have permitted and acquiesced in many violations by others, of similar restrictions governing the number of dwelling houses to be erected upon separate plots within said tract and have themselves violated such restrictions and that such building restrictions have been generally ignored by their violation; that Governor Fort violated the restriction in question in 1914 by erecting a dwelling house on the Jewett lot and that such violation was permitted and has continued without objection from anyone, although all property owners in the vicinity had ocular notice of his intention to violate it and of his actual and continued violation of it; that since 1873 the population of South Orange has increased from less than 2,000 to over 7,000 and housing conditions in the village are congested; that the village, because of the increased number of inhabitants and the limits of its area is no longer suitable for the ownership of large country estates; that many dwelling houses have been erected within the 210-acre tract and in the immediate neighborhood of the property in question, on lots having a frontage of 100 feet or less and that the average frontage of lots within said tract upon which single dwelling houses are now being erected is 100 feet.
I conclude that the admitted facts disclose an intent on the part of Vose and those claiming under him, for whose benefit the restrictive covenant in question was made, not to observe the spirit and intent of the covenant and to abandon it and to generally acquiesce in its violation, and that it would be inequitable, under such conditions and because of the departure from the neighborhood scheme or plan as originally contemplated, to now enforce it, and that such covenant, in so far as it restricts the use of that part of the Durbrow lot which is described in the contract in this suit to the erection of a single dwelling house, is a nullity and unenforceable. Page v. Murray, 46 N. J. Eq. 325, 19 Atl. 11; Ocean City Ass'n v. Chalfant, 65 N. J. Eq. 156, 55 Atl. 801, 1 Ann. Cas. 601; Chelsea Land, etc., Co. v. Adams, 71 N. J. Eq. 771, 66 Atl. 180, 14 Ann. Cas. 758; Sanford v. Keer, 80 N. J. Eq. 240, 83 Atl. 225, 40 L. R. A. (N. S.) 1090; Fisher v. Griffith Realty Co., 88 N. J. Eq. 204, 101 Atl. 411. Defendant's contention that, because of the covenant as applied to the number of dwelling houses to be erected upon the Jewett and Durbrow lots, the title tendered to her is not marketable, is without force, and she will be decreed to specifically perform her contract.