Opinion
No. 51/413.
07-20-1922
HOLMAN v. PARKER et al.
Carr & Carroll, of Camden, for complainant. Joseph C. Haines, of Camden, for defendant Bennett. Albert E. Burling, of Camden, for defendant Parker.
Suit by Frederick L. Holman against Ellis Parker and others.
Decree for complainant.
Carr & Carroll, of Camden, for complainant.
Joseph C. Haines, of Camden, for defendant Bennett.
Albert E. Burling, of Camden, for defendant Parker.
LEAMING, V. C. No material facts are here in dispute. The single question for determination is whether there can be said to be any substantial doubt touching the meaning of the restrictive building covenant which complainant seeks to enforce.
It is an established rule that courts of equity will not aid one in the enforcementof restrictive covenants of this nature unless his rights are clear; that such covenants are to be strictly construed against the person claiming the right to enforce them; that when vague or uncertain or the right to relief is doubtful relief must be denied. Fortesque v. Carroll, 76 N. J. Eq. 583, 75 Atl. 923, Ann. Cas. 1912A, 79; Goater v. Ely, 80 N. J. Eq. 40, 82 Atl. 611; Meaney v. Stork, 80 N. J. Eq. 60, 83 Atl. 492; Ocean City Land Co. v. Weber, 83 N. J. Eq. 476, 91 Atl. 000, affirmed 84 N. J. Eq. 505, 94 Atl. 1102.
It is admitted by defendants that on December 31, 1919, defendant Parker conveyed to complainant a portion of land then owned by him, and that by an agreement between the same parties, a copy of which is annexed to the bill, the land retained by defendant Parker was restricted in its use in favor of complainant. Prior to that time the Parker land was subject to a restrictive building covenant in favor of complainant identical in all respects with the covenant then agreed upon between complainant and Parker, except the distance the restricted area extended from Gilmore street. The new covenant merely reduced the restricted area from 65 feet in width to 50 feet in width; complainant by the agreement waiving the benefit of the covenant as to the extra 15 feet.
The restrictive covenant thus agreed upon was as follows:
"That no building other than a dwelling house or cottage and to be used as such solely shall at any time hereafter be erected on any part of the land of the said Ellis Parker extending from the southerly line of the land of the said Frederick L. Holman [complainant] southward to Chestnut street within fifty feet from the westerly line of Gilmore street."
Defendant Bennett is now in possession of the land so retained by Parker (except as to 10 feet frontage thereof on Gilmore street) under a contract of purchase, and proposes to build on the restricted area a row of four cottages for residence purposes.
The defendants are clearly bound by the covenant above quoted. Their defense is that the covenant cannot properly be understood as restricting the number of buildings on the restricted area, but should be understood as restricting the class of buildings which are privileged to be there erected; that is, forbidding the erection of any building except those of the defined type.
The difficulty encountered in accepting the view last stated is that the plain language of the covenant is to the contrary. The covenantor has in exact language engaged to erect no building other than a dwelling house or cottage on the restricted territory. If the mutual intent was to engage to erect no building other than dwelling houses and cottages on the restricted territory, the remedy should be reformation, since the clear and unmistakable meaning of the terms of the covenant are to the contrary.
The land retained by Parker at the time he conveyed to complainant was not in area more than could appropriately be devoted to a single residence property. It was at that time but 160 feet in frontage on Gilmore avenue. The same may be said of the similar covenant of Parker's predecessor in title. His frontage at the time he executed his covenant to complainant was but 185 feet Obviously the mere assumed possibility that the amount of frontage retained may have been more than the covenantor would have devoted to the use of one residence building cannot justify a doubt as to the meaning of language that is clear, definite and certain.
The recognized rule requiring a high degree of certainty touching a complainant's right to relief in a case of this nature has impelled me to earnestly search for some circumstance that could suggest a reasonable doubt as to the meaning of the covenant, and I have been unable to find any circumstance of that nature.
I will advise the restraint sought.