Bogardus v. Caragher

Headnote

Vendor and purchaser — Cloud on title — Covenants.

A deed from the city of lands under water recited that it was the inten. tian of the parties that there should forever remain adjoining said premises certain slips for the use of vessels, and contain'd a covenant by the grantee, for himself, hisjheirs, representatives and assigns, to erect and maintain wharves or streets twenty-five feet wide along said slips into the river on the premises so conveyed. It also contained a reservation by the city of the right to open one or more streets across the premises so granted without compensation. Subsequently a further grant was made extending further into the river, and on the latter premises the wharves and streets were constructed. The city has exercised its option and opened streets on said premises. Held, that the aforesaid covenants do not constitute a cloud on the title of a subsequent grantee of a portion of the premises first granted.

Submission of controversy without action.

Plaintiff contracted to sell to defendants a lot of land, and the building thereon, situated on the north side of Broome street, twenty-five feet west of Mangin street,- free and clear of all incumbrances, by the usual full covenant and warranty deed. Such deed was delivered, but defendant retained $200 of the purchase price, claiming that the title was not free and clear, but was incumbered by certain provisions and covenants in a former deed. The premises in question were a part of certain lands underwater which were conveyed by the city in 1787, to one Marinus Willett, subject to an annual rent. The grant included lands from De: lancey to Broome streets inclusive, and from what is now Goerch street 200 feet into the East river. The grant recited that it was the intention of the parties that there should remain forever, for the use of the city, slips for vessels, 100 feet wide, in front of Delancey and Broome streets, and contained a covenant by Willett, for himself, his heirs, executors and assigns, to erect and maintain wharves or streets along said slips twenty-five feet wide, and extending 200 feet into the river, upon the land which he was to fill in. It also reserved the right to the city to open one or more streets from north to south, across said premises, without compensation.

Said rent was subsequently released, and the city, in 1830, opened Goerck and Mangin streets through said premises. In 1825 the city made a further grant to Willett of lands under water extending 600 feet further into the river, containing similar provisions as to maintaining piers, wharves and slips. Willett filled in and made the land on the last granted premises and erected the wharves or streets upon such premises. Streets have also been opened by the city on the last mentioned premises.

Defendant claims that the covenants in the first grant are binding on the grantees and assigns of Willett and run with the land, and are a cloud on plaintiff’s title and an incumbrance, and could be enforced by the city, and that the title is thus rendered unmarketable. Plaintiff demands judgment that her title is in fee simple, free and clear from incumbrances; that such covenants are

not incumbrances and clouds on her title ; that the deed tendered was in conformity and full compliance with her contract and that defendant pay her the sum of $200 so retained.