Clement v. Burtis — 25 Abb. N. Cas. 346

Majority

p. 346

CLEMENT v. BURTIS.

N. Y. Court of Appeals;

June, 1890.

Headnote

1. Covenant running with, the land; condition subsequent.] A pr<H vision in the habendum clause of a deed, that the grant is “ upon the expressed condition, nevertheless, that the said party of the second part, his heirs or assigns, shall not at any time or times hereafter, erect, place, or permit or sufler to be erected, placed, or-put or remain in or upon the said premises, or any part or parcel thereof, any building or erection, or carry on any business, which shall or may cause or become a nuisance to others owning lands, or contiguous thereto,” does not create a condition subsequent, but is merely a covenant running with the land, and is, therefore, not such a defect in the title as will excuse a purchaser from completing his contract.^[2]

2. Vendor and purchaser; covenant against nuisance.] A general covenant against nuisance will not excuse a purchaser from completing his contract of purchase, as it binds the owner of the land

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no further than he would be bound by law, in the absence of' any covenant.^[2]

Appeal from a judgment of the general term of the supreme court, in the second department, affirming an order of the special term, directing Edward J. O’Flynn to complete a purchase of real estate.

The material facts appear in the opinion.

H. C. Conrady, for appellant.

H. C. M. Ingraham, for respondent.

Edward J. O’Flynn became a purchaser on a foreclosure sale of certain real estate, arid subsequently refused to complete his purchase, on the ground, as stated by him, that “ the title to a portion of said lands is derived through a deed of conveyance bearing date December 24, 1851, made by Richard L. Crook and his wife to Samuel Baldwin Chapman, and recorded in the Kings county register’s office, in liber 267 of Conveyances, at page 171, January 9, 1852, and that such lands were conveyed by said deed upon a condition subsequent therein expressed.” The habenct/wm in the deed from Crook and wife contains the-following clause: “ Upon the expressed condition, nevertheless, that the said party of the second part, his heirs or assigns, shall not at any time or times hereafter erect, place,, or permit or suffer to be erected, placed, or put or remain in or upon the said premises, or any part or parcel thereof, any building or erection, or carry on any business, which shall or may cause or become a nuisance to others owning lands, or contiguous thereto.”

The claim of the purchaser is that this clause in the deed creates a condition subsequent, and that there is, therefore,.

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•such a defect in the title that he should not be compelled to complete his purchase. We are of opinion that this clause •does not create a condition subsequent, but that it is a covenant running with the land. It is unnecessary for us now to .give our reasons for so holding, as they are found in our recent decisions in the cases of Avery v. Railroad Co. ( 106 N. Y. 142 ; s. c., 12 N. E. Rep. 619 ), and Post v. Weil ( 115 N. Y. 361 ; s. c., 22 N. E. Rep. 145 ).

We do not understand that the purchaser makes- any -complaint of this clause in the deed, provided it be simply a covenant running with the land. In that event it could not be harmful, because it would not bind the owner of the land further than he would be bound by the law, in the absence of any covenant.

We are, therefore, of the opinion that the order below -should be affirmed, with costs.

All concur, except Andrews, J., absent.

Cases cited

Avery v. New York Central & Hudson River Railroad 106 N. Y. 142 N.Y. 1887-06-07 p. 348
Post v. Weil 115 N. Y. 361 N.Y. 1889-10-07 p. 348