Opinion
Submitted February 14th, 1941.
Decided April 25th, 1941.
1. Complainants and four others purchased the premises in question in order to prevent the threatened construction of a business thereon. The conveyance to them, as tenants in common, contained a restriction identical with that inserted in their deed to defendants' predecessor in title, forbidding the erection of any building other than a dwelling house on the premises. Defendants have begun to alter the dwelling on the lot so that it may be used as a retail store. Decree restraining defendants from using the building or any addition thereto for any purpose other than a dwelling or from altering or adding to the building so that it may be adapted for use other than a dwelling, and commanding defendants to remove additions begun for such prohibited use and to restore the building so that it shall be adapted for a dwelling only, granted.
2. The fact that complainants' grantor quit-claimed to defendants his right to enforce the restriction in question, does not prejudice complainants in the enforcement of an identical covenant between them and their grantee, defendants' predecessor in title.
3. Complainants were tenants in common with four others under the conveyance by which they formerly owned the premises. Their rights under the restrictive covenant in question are therefore several and may be enforced at the suit of less than all of them.
4. Since the rights of the covenantees are several, the standing of complainants to enforce the covenant is not affected by the action of the other four covenantees in selling their homes in the neighborhood.
5. The lack of restrictions on the lots of complainants and those formerly owned by the other four covenantees, is immaterial in complainants' enforcement of the covenant. This is not a case of a neighborhood scheme.
6. A neighborhood scheme cannot be established by restrictions on a single lot.
7. Changes in the neighborhood have not been so great as entirely to nullify any benefits that complainants might have by the continued observance of the restrictions in question.
8. The restrictions inserted by complainants and their co-tenants in their conveyance to defendants' predecessor in title were stated to "run with and be binding on the premises." They are enforceable not only against complainants' grantee but against anyone, including defendants, who accepted title under the grantee with knowledge of the restrictions.
On appeal from a decree of the Court of Chancery advised by Vice-Chancellor Bigelow, who filed the following opinion:
"In 1921, one Harry Rosenberg began the erection of a business building on a lot owned by him at the corner of Elmora and Linden avenues, in Elizabeth. Seven other property owners in the neighborhood, believing that business on Rosenberg's lot would be undesirable, bought the property. A few months later, they re-sold to Peter and Kristian Ostergaard. The deed contained the following:
"`The premises herein described are conveyed subject to the following restrictions, which covenants shall run with, and be binding on, the premises herein conveyed. That there shall not be erected on the premises herein described more than on building, which said building shall not be used for any purposes than a dwelling house, and shall be so constructed as to be adapted for a one-family or two-family dwelling only."
"By several mesne conveyances title to the corner lot finally vested in defendants Benjamin Weiner and wife who commenced altering the dwelling house on the premises so that it might be used as a retail store. Thereupon, three of Ostergaard's grantors instituted this suit in which they pray that defendants be restrained from breaching the restrictions in the deed to Ostergaard.
"The defendants have filed an answer by which several alleged defenses are presented.
"In the deed from Rosenberg to complainants and their colleagues, were restrictions identical with those later inserted in the deed to Ostergaard. Rosenberg, in February, 1940, quit-claimed to defendants his right to enforce these restrictions. Quite obviously this quit-claim by a third party does not prejudice complainants in the enforcement of a covenant made by the Ostergaards with them and their co-grantors.
"The seven were tenants in common and not joint tenants. Their purpose in exacting the restrictive covenant from the Ostergaards, was the protection of the lots which they severally owned. Or perhaps I should put it, their purpose was to protect the enjoyment each had in his home nearby. Their rights under the covenant are therefore not joint but several and may be enforced at the suit of less than all of them. 1 Restatement — Contracts § 128; see especially illustration 2.
"The answer shows that complainants' co-grantors have sold their homes and have so abandoned the right to enforce the covenant made by the Ostergaards. But since the rights of the covenantees were several, the standing of complainants to enforce the covenant is not affected by the action of the other four covenantees.
"The lack of restrictions on the lots of complainants and the other grantors to the Ostergaards is immaterial. They did not enter into the transaction on which they rely for the benefit of anybody except themselves. This is not a case of a neighborhood scheme.
"The answer also says that the covenant was inserted in the deed for the purpose of establishing a neighborhood scheme and that the complainants have abandoned the purpose. This is plainly a sham. A neighborhood scheme cannot be established by restrictions on a single lot.
"Lastly, the answer says that the character of the neighborhood has so changed as to make it `non-sensical' to enforce the restriction. This, too, is sham. The affidavits clearly show what stores and business houses there are in the neighborhood. On two of the corners of Linden and Elmora avenues are stores. Two or three blocks to the north there are several business establishments but the whole block in which the lot in question is located, is devoted solely to residences. The restrictions still perform their intended function of repelling the invasion of business. Certainly the changes in the neighborhood have not been so great as entirely to nullify any benefits that complainants might have by the continued observance of the restrictions.
"The restrictions on the Ostergaards' title are stated to `run with and be binding on the premises.' They are enforceable not only against the Ostergaards but against anyone, including defendants, who accepted title under the Ostergaards with knowledge of the restrictions.
"The answer will be struck. Complainants are entitled to a final decree restraining defendants from using the building on the premises described in the bill, or any addition to the building, as a store or for any purpose other than as a dwelling house; and from altering or adding to the building, so that the building or any addition shall be adapted for store use or other use than as a one-family or two-family dwelling. The decree should also command the defendants to remove the additions which have been begun for such prohibited use and to restore the building so that it shall be adapted for a dwelling only."
Mr. Harry J. Weiner, for the defendants-appellants.
Mr. Milton A. Feller and Mr. Peter L. Hughes, Jr., for the complainants-respondents.
The decree under review will be affirmed, for the reasons expressed in the opinion of Vice-Chancellor Bigelow.
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, THOMPSON, JJ. 15.
For reversal — None.