Summary
In Bird v. Salt Hill Corp., 282 App. Div. 1047, 128 N YS.2d 125 (2d Dept. 1953), aff'd 2 N.Y.2d 1000, 163 N YS.2d 613, 143 N.E.2d 348, a plaintiff was permitted to enforce a restrictive covenant which did not appear in his chain of title (cf. Buffalo Acad. of the Sacred Heart v. Boehm Bros., 267 N.Y. 242, 196 N.E. 42) because defendant had actual notice, through a title abstract, of its existence in another deed. At least on matters of actual knowledge, equity does not distinguish between real and personal property.
Summary of this case from In re DavidoffOpinion
December 7, 1953.
Appeal by defendants Salt Hill Corporation and Nelson, its president, from a judgment enjoining them from using certain real property owned by the corporate defendant for business purposes, including a commercial airport and a "Farmers' Market and County Fair." Judgment affirmed, with costs. We are of opinion that the trial court correctly found that appellants, prior to and at the time of the taking of title to said premises, had notice of the restrictive covenant in question. The abstract of title which they employed in connection with the taking of title indicated the presence of restrictive covenants. That should have suggested an inquiry which, if diligently prosecuted, would have disclosed the covenant (see Williamson v. Brown, 15 N.Y. 354, 362, 364, and Kingsland v. Fuller, 157 N.Y. 507, 511).
Nolan, P.J., Wenzel, MacCrate and Schmidt, JJ., concur;
Under the proof in this record it may not be held that the corporate appellant, at the time of taking title, had notice of the restrictive covenant in question. Furthermore, the covenants in the Bird and Julsrud deeds are personal and may not be enforced against the grantors' assignees. The covenants are not connected with a general plan of development. ( Clark v. Devoe, 124 N.Y. 120; Buffalo Academy of Sacred Heart v. Boehm Bros., 267 N.Y. 242.)