Magee v. Palmer — 150 A.D. 356

Majority

p. 356

Daniel Magee, Appellant, v. Irene M. Palmer and Others, Respondents.

Second Department,

April 26, 1912.

Headnote

Real property — vendor and purchaser — mutual restrictive covenants — conveyance by deed not containing covenant — when easement extinguished.

Where the grantor and grantee of adjoining lots made mutual covenants not to build a stable upon either parcel, but the grantor, after subsequent conveyances by his grantee, conveyed his parcel by a full covenant deed, with warranty against incumbrances, the purchaser being chargeable with constructive notice of the restriction gained no easement in the other lot and hence the title to the latter is not unmarketable.

Appeal by the plaintiff, Daniel Magee, from a judgment of the City Court of Yonkers, entered in the office of the clerk of said court on the 25th day of January, 1912, upon the decision of the court dismissing the complaint upon the merits.

William J. Wallin, for the appellant.

Thomas M. Smith [Henry Martyn Baird, Jr., with him on the brief], for the respondents.

The defendants agreed to sell plaintiff lot No. 180 Wood-worth avenue, Yonkers, and the latter sued for the deposit upon the ground .that the title was not marketable. One Sanger owned lots Nos. 180 and 182, and in December, 1889, conveyed, to one Muller lot No. 180 “ To have and to hold * * * subject to the express condition and limitation to which the said party of the second part, for himself his heirs executors and assigns hereby covenants and agrees, that no stable ■public or. private shall be erected or allowed on the land hereby conveyed and the parties of the first part, for themselves their executors and assigns hereby-covenant and agree to and with said party of the second part, that no stable public or private will be erected or allowed on the adjoining lot No. 182 Woodworth Avenue, and that when the said lot 182 Woodworth Avenue, is sold by them or their heirs executors or assigns that it shall be sold subject to such restriction.” Muller, in 1903, conveyed to one Palmer subject to such restriction, to which the grantee agreed, and the defendants inherited from Palmer. In 1896 Sanger conveyed lot 182 to Morrell without restriction and with covenant against incumbrances. Although the restriction upon No. 180 is stipulated in the form of a condition, yet it is evident that the parties intended to make mutual covenants for reciprocal restrictions on Nos. 180' and 182. (Graves v. Deterling, 120 N. Y. 447 ; Clement v. Burtis, 121 id. 708.) In such case Sanger could not enforce the restriction upon .No. 180 if he violated it as to No. 182. When Sanger conveyed No. 182 to Morrell he violated his agreement. In fact, he and Morrell agreed to disregard the easements, for the conveyance was by a full covenant deed. Morrell had constructive notice of the restriction, and knowing of the obligation of Sanger to restrict 182, preferred to take it without restrictions and with covenants that such' restrictions should not exist to disturb his estate. If, then, the owner of No. 180 would erect thereon a stable, the owner of No. 182 could not restrain him, inasmuch as he did not purchase an easement in No. 180 in favor of 182, but knew by the very terms of his deed that such easement did not exist, and .could not unless No. 182 were subjected to a similar servitude. All this would appear to a proposed pup-

p. 358

chaser of No. 180 from the deeds, without resort to extrinsic • evidence, and establish that the title was marketable.

The judgment should be affirmed, with costs.

Jenks, P. J., Cajrr, Woodward and Ríen, JJ., concurred.

Judgment of the City Court of Yonkers affirmed, with costs.

Cases cited

Graves v. Deterling 120 N. Y. 447 N.Y. 1890-06-03 p. 356