Summary
In Sanford v. Keer, 80 N.J. Eq. 240; 83 Atl. Rep. 225: "and such purchasers are induced to buy the lots by and in reliance upon representations, either public or private."
Summary of this case from McComb v. HanlyOpinion
07-16-1909
SANFORD v. KEER.
Frank E. Bradner, for the motion. Raymond, Mountain & Van Blarcom, opposed.
Suit by Margaret J. Sanford against Ernest F. Keer. Heard on motion for preliminary injunction to enforce a restrictive building covenant. Denied.
Frank E. Bradner, for the motion. Raymond, Mountain & Van Blarcom, opposed.
HOWELL, V. C. Mrs. Sanford files her bill to restrain Mr. Keer from violating a covenant in a deed of conveyance. On April 29, 1905, Mrs. Sanford and her husband, now deceased, were owners of an estate by the entirety in a large tract of land, of which the lot in question is a part. On that day they conveyed this lot to Edward Weston by a particular description and subject to certain restrictions, among which was that there should not be erected upon it any building other than a private dwelling house for one family only, which should cost not less than $5,000 and should be built 39 feet back from the curb line, and "that no stable or outbuilding at any time hereafter shall be erected or placed on the premises above described and hereby conveyed, and that the grade of said lot shall be made to correspond with the grade of the lots adjoining the lot hereby conveyed on which dwellings are erected." Weston conveyed the land to Keer, subject to the same restrictions, on May 18, 1907. Mr. Sanford subsequently died, leaving Mrs. Sanford as the survivor, by virtue of which she claims the right to enforce the covenant. The defendant Keer has announced his intention to erect on the lot a garage for the storage of an automobile, and by his answer he declares that such is his intention. Mrs. Sanford notified him that she would stand on the restrictive covenant, and she brings her suit to enforce the same.
The defendant answers, and exhibits affidavits tending to show that long prior to the purchase of this lot by the defendant, Keer, and indeed prior to the purchase of the same lot by Weston, his predecessor in title, the Sanfords had devised and had announced a general plan or scheme for restricting the entire tract which they owned in that neighborhood by certain restrictions, which are set out in the affidavits, and that Mrs. Sanford has conveyed many lots out of the tract containing no restrictions of the character announced and declared by her, and some lots without any restrictions whatever, and that she has permitted at least two automobile garages to be erected upon the tract, and therefore has abandoned the general scheme of restriction, so that the defendant, Keer, is entitled to erect on the said premises the garage in question.
The primary allegation of the complainant is that she had not adopted or announced any general plan for the restriction of the use of the property, but that she intended to restrict each lot as she sold it by such separate and distinct restrictions as she might think necessary for that particular lot. Her statement is met by the affidavits of several people, who had conversations with her and who became purchasers of portions of the tract, to the effect that she had stated to them that she had adopted a uniform restriction, and stating what it was. On this point the defendant's affidavits have thrown such grave doubt upon the question involved that I am unable to say, as the result of the exparte statements, which is the fact. Neither am I prepared to say on this preliminary motion what effect the subsequent acceptance of a deed by Keer containing the restrictions above recited has upon his previously acquired notice of the general plan. This point must therefore be reserved for the final hearing.
It is quite clear from the affidavits that, if there was at any time a general scheme for the restriction of the use to which the lots on this plot should be put, that scheme has been violated by the complainant, and in fact has been wholly abandoned by her. If there was no general plan, then I fail to see how she could be seriously damaged in view of the fact that she is maintaining a garage on her own property, which is part of the larger tract in question, and much nearer to her house than a garage erected upon Keer's would be. Besides, there is evidence by Mr. Bond and Mr. Scarlett, who are expert real estate authorities, that at the present time a garage is not considered to be detrimental to the value of real estate.
Neither do I think that the injunction is necessary to protect the complainant's ultimate right, if it shall be adjudicated upon final hearing that she has any right in the premises. She has brought her suit, which is notice to Keer that she claims the right, and as between herself and Keer has established a lis pendens. There are no third persons whose rights are affected, and therefore the act respecting notice of lis pendens (P. L. 1902, p. 477) has no application. So far as the lis pendens is concerned, it stands on the class of decisions of which Haughwout v. Murphy, 22 N. J. Eq. 531, is an example. The complainant has protected herself by filing her bill and issuing subpoena, and whatever the defendant does after that he does at his own peril. She has given notice in the most solemn and efficient form possible. In Morrow v. Hasselman, 69 N. J. Eq. 612, 61 Atl. 369, Hasselman began the erection of his house on December 5th. Complainant discovered it December 10th, and on December 11th gave notice in writing. On December 26th the bill was filed. The building in question was completed after the suit was begun. The court says: "The completion of the building under these circumstances must be considered to have been at the defendant's risk, and complainant is entitled to a mandatory injunction to enforce the covenant." Therefore it is quite plain that if Mr. Keer should proceed to the erection of his garage, and the final decree in this case should go against him, it would be the duty of the court to issue a mandatory injunction to compel its removal. I do not mean to indicate in any manner what might be the result in case the complainant should bring an action at law for damages for the violation of the covenant. The situation in a court of law will be governed by rules that do not prevail in a court of equity, and, while this court might deem it impossible to enjoin the violation of the covenant, substantial damages may be recovered in an action at law. In my opinion, therefore the motion for an injunction should be denied. Let the costs abide the event of the suit.