Opinion
04-07-1900
FAIRMOUNT CEMETERY ASS'N OF CITY OF NEWARK v. TRUSTEES. OF FIRST PRESBYTERIAN CHURCH IN NEWARK et al.
Joseph N. Tuttle, for complainant E. B. Williamson, for defendants.
Suit by the Fairmount Cemetery Association of the City of Newark against the trustees of the First Presbyterian Church in Newark and others. Defendants demur to the bill. Demurrer overruled.
Joseph N. Tuttle, for complainant E. B. Williamson, for defendants.
PITNEY, V. C.The facts disclosed in the bili and admitted by the demurrer are as fol lows: At and before the 21th of May, 1854, the defendant corporation, a religious society in Newark, was the owner of a tract of land situate in the vicinity of Newark, known as the "Parsonage Woodland," and certain gentlemen, a score or more in number, residents of Newark, were desirous to organize a cemetery association and to lay out a cemetery upon that woodland. The parties agreed upon a conveyance by the defendant of the land in question for the sum of $20,000, with the reservation to it of the right to reserve a tract of half an acre, to be chosen and located by the church, "for the purposes of a church building." In pursuance of that arrangement a conveyance of the woodlot was made on the 24th of May, 1854, by the church to Joseph N. Tuttle and Roswell Van Buskirk, two of the purchasers, as joint tenants and not as tenants in common, in consideration of $20,000. At the same time, and as a part of the same transaction, Tuttle and Van Buskirk executed a declaration of trust, declaring that they held the same in trust for the actual purchasers (naming them), and, as to one-half acre, "to reconvey the same to the said the trustees of the First Presbyterian Church in Newark when the said half acre should be located by them for a church site, to be located, in the judgment of said trustees, on any part of the tract." That on the 27th of September, 1854, the board of trustees of the defendant corporation adopted a resolution as follows: "A request from the purchasers of the parsonage woodland on the South Orange road, that the board would locate the site to be reserved for the purpose of a church, according to the condition imposed by the resolution of the congregation authorizing the sale, having been laid before the board, it was, on motion, resolved that the president locate the site for the church aforesaid on the easterly end of the front line of the said premises; the dimensions of the front and depth of the lot reserved to be determined at his discretion, provided the boundaries so determined by him include a half acre." Shortly after the adoption of that resolution the half-acre lot was actually located by metes and bounds. Afterwards, on the 9th of February, 1855, the projectors of the cemetery, for whose benefit the title was held by Tuttle and Van Buskirk, caused themselves to be incorporated by an act of the legislature under the name and style of the Fairmount Cemetery Association of the City of Newark, and on the 19th of June, 1855, Tuttle and Van Buskirk executed two deeds of conveyance,—one to the complainant, of the whole premises, except the half acre chosen by the church, the exception being in these words: "The remaining half acre, part of said premises, having been reeonveyed to the said trustees of the First Presbyterian Church, pursuant to contract; they having located and designated the said half acre, agreeable to the condition of the originalsale, as that part of said premises which they have, since the conveyance made by them, resolved to reserve for church purposes." And at the same time they made a conveyance to the defendant of the half acre in question, by metes and bounds, which deed contained this clause: "Being a part of the same land and premises conveyed to the said Joseph N. Tuttle and Roswell Van Buskirk by the said party of the second part on the twenty-fourth day of May, eighteen hundred and fifty-four. And this triangular lot, as above described, and which contains, by estimate, fifty-hundredths of an acre, having since that time been located by the said party of the second part, and reserved as a site for a church, is reconveyed to them for that purpose, pursuant to the understanding and agreement made and entered into between the parties to the original conveyance; and the said party of the second part hereby consent and agree that the said premises shall be used and occupied only for a church or place of worship, and for no other purpose or purposes whatsoever." This deed was accepted by the defendant. Tuttle, one of the grantors in that deed, died on the 12th of August, 1886, leaving Van Buskirk surviving; and after his death Van Buskirk, at the request of the defendant, executed a deed of quitclaim, dated February 23, 1889, by which he released and quitclaimed to the defendant the restriction confining the use of the half-acre lot to church purposes. That release contains a recital in these words: "And whereas, it is desired by the said the trustees of the First Presbyterian Church in Newark to convey the premises mentioned and described in the last-mentioned deed, and hereinafter more particularly described, freed from the condition stated in the last above mentioned conveyance, and the said Joseph N. Tuttle having heretofore departed this life: Now, this indenture witnesseth," etc. This release by Van Buskirk was without the knowledge or consent of the complainant, and the defendant at the time of the filing of the bill was about to sell and convey the half-acre lot free from the restriction contained in the conveyance to it by Tuttle and Van Buskirk. The prayer of the bill is for a perpetual injunction against its so doing, or making use of the deed of release.
The questions raised are: First, whether or not the restriction in the deed from Tuttle and Van Buskirk to the church inured to the benefit of the complainant, owning the adjoining land; and, second, if so, is it a proper case for the interposition of this court?
I am of the opinion that both questions must be resolved in favor of the complainant. It is quite plain that it was part of the original contract of sale from the defendant to the promoters of the cemetery scheme that the lot should be reserved for use for church purposes only. The declaration of trust made by the grantees at the time the deed was delivered to them indicates this, and the resolution of the church as to the location of the half acre also indicates it. Then the church accepted the deed with that restriction in it, and it must have known, from the previous declaration of trust, that Tuttle and Van Buskirk were mere trustees, without any personal interest in the premises, and that that restriction was not for their personal benefit, but for the benefit of the adjoining property. In fact, the benefit of such a restriction must of necessity attach to the ownership of land, and will not be recognized or enforced by any court at the instance of a mere covenantee at large, not the owner of any land affected thereby. In the absence, then, of any statement in the bill that Tuttle and Van Buskirk were at that time individually interested in any other land in the neighborhood, except the original wood-lot, which could be affected by the enforcement of the restriction, the presumption arises that the restriction must have been for the benefit of the balance of the original wood-lot, whether at the moment of the making of the deed to the defendant for the half acre they were the owners of that lot or not. The fact is, as we have seen, that the two deeds were dated the same day, and executed at the same time; so that, in order to give any force whatever to the restriction, it must have inured to the benefit of the complainant, as the owner of the parsonage woodlot. For these reasons, I am of the opinion that the restriction inured to the benefit of the complainant.
In the next place it is alleged in the bill and admitted, and in fact must be inferred from the procuration from Van Buskirk of the release of that restriction, that the defendant intends to devote that lot to other than church purposes, and to put it in the market for general sale. Now, that will be a clear breach of the restriction, and the complainant will lose the benefit of the restriction unless it shall be able to prove that the grantee had notice of the restriction put upon the lot, and that it inured to the benefit of complainant's lands. To do that, the complainant must rely upon notice to the purchaser of the contents of the books of record of the defendant and the declaration of trust, which are not matters of public record; it not appearing that the declaration of trust was ever recorded. The complainant should not be subjected to such a risk. I am of the opinion that it is, under the circumstances, inequitable for the defendant to make the least use of the Van Buskirk release, and that the complainant is entitled to a decree that that release is not binding on the complainant, and that the restriction is in full force and effect, and that the defendant should be restrained from making any use of the release, or from conveying or attempting to convey to any person free and clear of the restriction in question.