Hyperlawhypertext legal database Bradley v. Walker 59 N.Y. Super. Ct. 334

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Bradley v. Walker

59 N.Y. Super. Ct. 334 27 Jones & S. 334 Court N.Y. Super. Ct. Decision date 1891-05-04 English

Contents

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MARY E. BRADLEY, Appellant v. ISAAC WALKER, Respondent.

Headnote

Injunction, order of ex parte, vacation of, when it should he continued durr ing the pendency of the action.
This action is brought by plaintiff to enjoin and restrain defendant, his agents,, etc., from building or permitting the.building or erection or use or maintenance of any structure, upon an alleged reserved space of land between the street line and a line drawn parallel thereto and eight feet therefrom, and that any structure already erected or in process of erection, in violation of the agreement set forth in the complaint, be ordered and adjudged tobe removed by defendant, and that the defendant be so enjoined during the pendency of the action; and for one thousand dollars damages.
The complaint alleges the ownership in 1846 of sixteen lots of hind on the northerly side of Thirteenth street, between Broadway and Fifth avenue, in divers persons, naming the alleged respective owners of each lot. It further alleges that such owners agreed in writing to reserve or lease a space in front of said lots, as lies between the street and a line drawn parallel to said street, and a distance of eight feet therefrom, as and for an open space or court which should never at any time thereafter be appropriated for, or be in any manner occupied by, any edifice, building or wall, orbe in any manner obstructed other than by the necessaiy steps for entrance, verandas and balconies, platforms and pedestals and iron fences and railings connected therewith, and enclosing the same, and the foundations and copings upon which said iron fence or railing may be placed. An alleged copy of the agreement is annexed to the complaint. This agreement and the complaint recites that lot No. 47 was owned by Alonzo A. Alvord; that Susan Alvord (who was the" wife of Alonzo A. Alvord) acquired a triangd- . lar strip of land between lot No. 47 (one of said lots) and Thirtieth street from James W. Anderson and wife in 1883, but afterwards the owners of ■ said lots and parties to said agreement built houses on said lots in aoeordanee with the sámeV that by virtue of certain mesne conveyances from Lewis Beach, an owner, and one of the parties to said agreement, the plaintiff became seized of one of these lots; that defendant, by like conveyances fromAlgnzti A. Alyoi'd.and'Susan Alvord, his wife, became seized of said lot No.' 47,"together with the said triangular piece, and is building and threatens to build an addition and projection in front of the building on his lot on the space reserved as an open space or court in front of said lots by said agreement.
An ex parle- order of injunction was made in the case by Judge Tbuax forbidding the violation of the covenant in the said agreement and the erection of said addition and projection. This order was vacated by the order of Judge Dugro and its continuance during the pendency of the action denied. This appeal is from the last-named order.
It seems that Judge Dugro conceded that the merits were entirely with the
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appellant, but that the injunction should be vacated upon a question of law, namely : That the covenant which was violated, having been executed in 1846 by Mrs. Alvord, who wuis a married woman, although it was acknowledged by her, was not so acknowledged separate and apart from her husband, and that, therefore, no estate passed, and the defendant was not bound by the equity of the covenant.
Held, that the covenant was not a conveyance within the statutory meaning of that term respecting the acknowledgment of conveyances by married women. It did not purport to grant or convey any estate, and none passed or was intended to pass by it. r Its objects were expressed by these words: “ The parties to these presents have agreed with each other to improve their said lots * * by leaving eight feet * * on the front thereof as an open space or court.” It was intended to insure uniformity of construction in the entire block that one might build his house back from the street eight feet without the light, air or vision being cut off by projections on either side. The execution of the plan by the parties was all that was necessary to make it binding upon those who agreed to it, or their successors in interest or estate. Such an agreement was a wise and beneficent one, and alike beneficial to all the owners. The objection to the defective acknowTedgment is personal to Mrs. Alvord, for she might at any time have corrected it, and no intervening right or equity prevents this from being done by her now if it were necessary; but it is not necessary. Mrs. Alvord is still living and has never repudiated the covenant and does not seek to do so. The houses were built on this block, in confirmity to this covenant, over thirty years ago. The houses were erected and the covenant consummated during the life of the husband whos e agreement (even regarded as a . conveyance) was valid while he lived by virtue of his exclusive right of • control and of 'sale. When the covenant was executed the land of the Alvords received a benefit, and on it was created a corresponding charge which, like other charges, recognized in equity, becomes effective when . declared so by the courts. A wife under the law existing at the time might by her sole act charge her estate in equity under some circumstances in which she had not the power of conveyance. Mrs. Alvord charged her ■■ estate in this instance. It needed no conveyance or writing to create this easement, even if the right conferred rises to the dignity of that title. The act or consent of all those interested was sufficient.
The authorities in this state go so far as to hold that these covenants run with the land, and without any assignments of the covenants may be enforced by any owner or occupant.
Injunctions in this class of cases are granted and held almost as of course upon proof of a breach of the covenant. The defendant bought with knowledge of the covenant and took subject to it. It was binding upon the Alvords and is certainly valid as to the plaintiff, a remote grantee, charged with notice of the equity. The plaintiff fully established her right to equitable relief by injunction, and it was error to vacate the same. The order appealed from must be reversed and the application to continue the injunction granted, with costs.
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Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
Decided May 4, 1891.
Appeal from an order made at special term vacating an ex parte injunction, and denying an application to continue the same during the pendency of the action.
G. W. Cotterill, attorney and of counsel, for appellant, argued:—
I. One of the most meritorious and best settled principles of law is this, that where any one buys real estate, with notice of an equity attached to it, he buys at his peril. The proposition that an agreement solemnly executed under seal and entered into for common benefit, whereby houses are actually set back eight feet from the line, and have remained so forty-five years, can be repudiated and the entire street destroyed by reason of the facts that the acknowledgment of a married woman did not show that she was examined separate and apart from her husband, is so extraordinary as to require some reason or authority to sustain it. It is confidently believed in behalf of the appellant that no such authority or reason can be shown. On the contrary, the following propositions have been conclusively established: (1) Whoever purchases real estate with notice of any equity attaching to it, buys subject to that equity. (2) That equity may be even collected from transactions independently of written agreement. (3) The notice may be implied from circumstances alone. (4) It is not necessary that any covenant of this character should run with the land, either as matter óf law or fact. (5) It is not necessary that it should be contained in the deed to the purchaser. The underlying principle is that “whenever a person who acquires a legal title, or an equitable title or interest in a given subject matter—even for a valuable con
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sideration, but with notice that the subject matter is already affected by an equity or equitable claim in favor of another—takes it subject to that equity or equitable claim.” Pomeroy’s Eq. Jurisp., vol. 2, p. 14. The doctrine has been clearly stated in Hodge v. Sloan, 107 N. Y. 245 , 250. In this case the grantee agreed to limit the use of his land in such a manner as would not interfere with the business of the grantor, and the court held that—“In order to uphold the liability of the successor in title, it is not necessary that the covenant should be one technically attaching to and concerning the land and so running with the title. It is enough that a purchaser has notice of it. The question in equity being, as is said in Tulk v. Moxhay, 11 Beav. 571; 2 Phillips, 774 , not whether th.e covenant ran with the land, but whether a party shall be permitted to use the land inconsistently with the contract entered into by his vendor, and with notice of which he purchased. This principle was applied in Tallmadge v. East River Bank, 26 N. Y. 105 , where the equity in regard to the manner of improvement and occupation of certain land grew out of a parol contract made by the owner with the purchaser, and was held binding upon a subsequent purchaser with notice, although his legal title was absolute and unrestricted.” This case reviews many authorities and quotes Chancellor Cotterham as saying that where a covenant of this character has been entered into it would be most “unjust and unconscientious” not to enforce it. The opinion also quotes the case of Brewer v. Marshall, 4 C. E. Green. W. Eq. 537, wherein the Chancellor agrees with Chancellor Cotterham: in saying that “it will be found upon examination that these decisions proceed upon the principle of preventing a party having knowledge of the just rights of another from defeating such rights, and not upon the idea that the engagements enforced create easements or are -of a nature to run with the land.” The
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case of Tallmadge v. East River Bank, cited supra, maintains this doctrine' in its strongest aspect. One of the leading' cases on this subject, and cited as such, is Whitney v. Union Railway Company, 11 Gray (Mass.), 363. The authorities, however, in this state go so far as to hold that these covenants run with the land, and without an assignment of the covenants, are enforceable; and any owner as well as occupant can enforce the right. Trustees, etc., v. Cowen, 4 Paige, 511; Brown v. Jones, 23 Barb. 153 . One of the grounds upon which this right is put is “ when it appears by a fair interpretation of the words of a grant that it wras the intent of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, such right will be deemed appurtenant to the land of the grantor and binding.” Whitney v. Union R. R. Co., 11 Gray, 367 ; Hill v. Miller, 3 Paige, 455; Washburn on Real Prop., 649 (4th ed. ) On the general doctrine of the above cases this court ordered a projection of the Burlington flats (in the same street) to be removed. Dubois v. Darling, 44 N. Y. Supr. 436. And the defendant was enjoined from maintaining a tenement house. Ammerman v. Dean, 57 N. Y. Supr. 177. This doctrine has been somewhat extensively referred to by us, not simply for the purpose of showing the principles upon which it stands, but for the purpose of showing that these covenants are held sacred in equity and are enforced as a matter of strict justice. “ The injunction in this class of cases is granted almost as a matter of course upon the breach of a covenant. The amount of damages, and even the fact that the plaintiff has sustained any pecuniary damages, are wholly immaterial. In the words of one of the ablest of modern equity judges, “ it is clearly established by-authority that there is sufficient to justify the court interfering if there has been a breach of the covenant.
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It is not for the court, but for the plaintiff, to estimate the amount of damages that arises from the injury inflicted upon him. The moment the court finds that there has been a breach of the covenant, that is an injury, and the court has no right to measure it and no right to refuse to the plaintiff the specific performance of his contract, although his remedy is that which I have described—namely an injunction.” 3 Pomeroy's Eq. Jurisp., 1342, p. 372. The doctrine is well stated in a Rhode Island case. It is undoubtedly true, and has often been decided that when a tract of land is subdivided into lots and those lots are conveyed to separate purchasers, subject to conditions that are of a nature to operate as inducements to the purchaser, and to give to each purchaser the benefit of a general plan of building or occupation, so that each shall have attached to his own lot a right in the nature of an easement or incorporeal hereditament in the lots of the others, a right is thereby acquired by each grantee which he may enforce against any other grantee. Green v. Creighton, 7 R. I. 1 .
II. We show conclusively by the authorities cited below that the husband, Alonzo A. Alvord, had, by virtue of his marital right, the absolute and unqualified right to dispose of, and to sell all the interest of his wife, until the marriage relation ceased. In other words, she had no right to the property whatever as against him during her coverture. This agreement was entered into July 15, 1846; at this time the husband had the absolute disposition of the property by virtue of his marital right. On the 1st day of April, 1857, Alvord and his wife sold and conveyed these two lots to William Ryer and another. In the year 1857, the two houses were built on these lots, the Walker lot and the one next east. These are the two lots sold by Alvord and wife. It also appears by the affidavit of Mr. De Forest that his mother’s house was built in 1854 in conformity with and in reliance
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upon the covenants; and that all the houses have been built over thirty years; also in reliance upon the agreement. Now, Alonzo A. Alvord, the husband, did not die until the year 1862, as is shown by the affidavit of Mr. Hoyt, the attorney for the defendant. The houses were therefor erected and the agreement consummated during the life of the husband, whose agreement was therefore perfectly valid and in force by virtue of his exclusive right to sell. “ This right the law had cast upon the husband as an incident to the marital relation. It was his property, and remained subject to all the incidents of property in his hands.” Vartie v. Underwood, 18 Barb. 566 . The .marital right beforé stated is fully set forth and discussed in the well known work Ewells Leading Cases, where is found the leading case of Robertson o. Norris. The foot-notes to this decision refer to all the text-books as sustaining the same doctrine, and to more than fifty cases. Chancellor Kent states the same doctrine in his commentaries, 2 Kent Com. 132. In regard to this matter of covenant, all the authorities agreed in the language laid down in Tallmadge v. E. R. Bank, 26 N. Y. 109 , that the question is “ whether a party shall be permitted to use the land inconsistently with the contract entered into by his vendor and with notice of which he purchased. If an equity attached to the property, by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.”
III. The authorities hold that a married woman can charge her separate estate by the way of servitude, as in this case, and she would be completely estopped. 2 Bishop on Married Women, § 212. Citing—Armstrong v. Ross, 5 C. E. Green, 109; Wilson v. Brown, 2 Beasley, 277; Harrison v. Stewart, 3 C E. Green, 451. In Pilcher v. Smith, 2 Head, 208 (Tennessee), McKinney, J., says: “The legal disability
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of coverture or of infancy, carries with it no .license or privilege to practice fraud or deception on other innocent persons, nor will the disability be permitted to protect them in doing so.” In the case of Hinckley v. Smith, 51 N. Y. 21 , the court held that “ Coverture is not a defence to an action to compel the specific performance by a married woman of a contract for the purchase of land when she has a separate estate.” The allegation in the complaint and affidavit of Henry De Forest that all these owners built their houses in obedience to the covenant is not denied. All the other contracting parties and their grantees or representatives have spent large sums of money in the faith and confidence, not only that she in conjunction with her husband was seized in fee, but that she could not repudiate an act and at the same time retain the- consideration. She would therefore have no standing in equity, having the legal authority to contract for that estate. As to her separate estate she is in equity a feme sole, and as Story says, she is “ liable for all debts, charges, encumbrances and other engagements, which she does expressly or by implication charge thereon; for, having the absolute power of disposing of the whole, she may dispose of a part thereof.” Section 1399, of 2 Story, Eq.
IV. It is, however, well settled that even if a woman .has not power to bind herself by covenant personally she. has power to bind her assignees. This was expressly decided in the case of Warne v. Routledge, 18 Equity Cases, 497.
V. The agreement was not a conveyance. The statute in force at this time declared that “ the acknowledgment of a married woman residing within this State to a conveyance purporting to be executed by her, shall not be taken unless in addition to the requisites contained in the preceding section she acknowledge, on a private examination apart from her husband, that she executed such conveyance freely
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and without any fear or compulsion of her husband,' nor shall any estate of such married woman pass by any conveyance not so acknowledged.” 1 R. S. 758, § 10. The defendant has shown considerable industry in citing a great'number of cases bearing upon this point, but it will be observed that all of them actually related to deeds of conveyance, whereby title, ownership and estate pass. In none of them was there any allusion to air, light or vision. It is well settled that neither light, air nor prospect can be the subject of a direct grant. u They can only be secured by covenant, agreement or condition.” Gerard’s Titles to Real Estate, p. 667, note. As laid down by all the text writers, the right under this covenant was an incorporeal hereditament and is therefore incapable of conveyance. Washburn, 4th ed., p. 649. A servitude is not the subject of conveyance, but only of covenant, and there is no change whatsoever of ownership. McLarney v. Pettigrew, 3 E. D. Smith, 111.
VI. It also appears that when the mutual agreement was entered into all the other parties actually transferred to the husband and wife, Alvord, all their interest in the light, air and prospect in front of their houses. This being transferred to them, they subsequently transferred all their rights to their grantees ; who asserted the same against the other parties and built accordingly. In other words, they held the other • parties strictly to the agreement, by building, and, as we say, “ in conformity to the covenant,” and which is nowhere denied. This would be sufficient of itself to bring the case within the doctrine of the St. Mark’s Place Case. Tallmadge v. E. R. Bank, 26 N. Y. 105 .
VII. The claim is made by the defendant that ten feet of the front of this building is not within the terms of the covenant on the ground that lot 47 was bounded on the south by a diagonal line running
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northeast, as shown on the diagram at page 21 of the case. It, however, appears that the land south of the diagonal line was purchased by Susan Alvord on the 26th day of November, 1853, and that the whole parcel was sold together on the first day of April, 1857, as one lot and was built upon in that year. It also appears by the express words of the agreement as follows: “ And whereas, the parties to these presents have agreed with each other to improve their said lots by leaving all such part of each thereof as lies between the said Thirtieth street and a line drawn parallel to the said street, and at the distance of eight feet therefrom, as and for an open space or court.” ' It also appears by the affidavit of Hy. W. De Forest that “ the houses on the north side of Thirtieth street between Fifth avenue and Broadway, excepting the ones on the corners, are all built on a line 8 feet from the street line, so as to present an unbroken and even front and in obedience to and conformity with the covenants contained in the agreement referred to above.” This is not denied, and it therefore stands admitted. Hence it is conclusive that the covenantees intended that the covenant should cover the gore or triangular space. There was an executed act which gave this all the force and effect of an executed contract, and it therefore comes squarely within the decision in the case of Tallmadge v. E. R. Bank, 26 N. Y. 109 .
VIII. It is conceded that this agreement was executed in 1846 by Alvord and his wife. In 1857 they conveyed to William Ryer, who built the houses in the same year in conformity to the covenant. If the interest under the agreement was real estate, or a right to an easement, there has been at least 33 years adverse possession and, indeed, with the knowledge and acquiescence of all the parties. This contention is supported by the opinion of Judge Earl in Ward v. Warren, 82 N. Y. 265 . The doctrine of adverse pos
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session as regards light, air and prospect is ably discussed in' the case of Parker v. Foot, 19 Wend. 216 , where it was held that where there was an enjoyment of the easement for the period of twenty years, uninterrupted and not by leave or favor and was under a claim or assertion of right with the knowledge and acquiescence of the owner, even a grant will be presumed.
Henry Hoyt, attorney and of counsel, for respondent, argued:—
I. The agreement upon which plaintiffs rely, a copy of which is annexed to the complaint, contains no proof of execution by Susan Alvord, nor is there a subscribing witness to the signature. In its present form it must be rejected as evidence, and extrinsic evidence is inadmissible to prove its due execution. On the motion, which, if granted, in the court below, would have entailed serious injury and great pecuniary loss on defendant, plaintiff was bound primarily to present satisfactory proof to the court of her ability to establish the agreement which is the foundation of her cause of action, and the necessity for exacting such proof becomes apparent from the agreement itself, which purports to have been executed in 1846, over forty years ago. The agreement in question, as it appears of . record, shows that there is no subscribing witness to the execution by Susan Alvord, and her acknowledgment thereof is defective, for the reason that no separate acknowledgment and examination were made. “ The acknowledgment of a married woman residing within this state to a conveyance purporting to be executed by her, shall not be taken, unless in addition to the requisites contained in the preceding section she acknowledged, on a private examination apart from her husband that she executed such conveyance, freely and without any fear or compulsion of
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her husband; nor shall any estate of such married woman pass by any conveyance not so acknowledged.” There can be no presumption in favor of the validity of an acknowledgment, the form is statutory and must be strictly observed, and if not, the general presumption of law is that the wife was acting under the compulsion of husband. A Deed of Contract conveying or agreeing to convey an estate, where the legal estate is in a feme covert, if not acknowledged by her according to the statute, is void in equity as well as law. Knowles & Hume v. McCainley, 10 Paige Ch. 342 . No estate passes except the conveyance is acknowledged as required by law. The disabilities of the wife are only removed by a strict compliance with the statute. Elwood v. Klock, 13 Barb. 54 . The deed of a feme covert not acknowledged according to the statute, forms no consideration for a promise to pay the purchase money. Martin v. Dewelly, 6 Wend. 14 . Citing Jackson v. Stevens, 16 Johns. 114 ; Jackson v. Cairns, 20 Ib. 303 ; Doe v. Howland, 8 Cow. 277 . A deed executed by a feme covert is not binding on her until acknowledged, and her subsequent acknowledgment does not relate back to the time of the acknowledgment of the deed. Jackson v. Stevens, 16 Johns. 109 . Where a wife does not acknowledge according to the statute her right is not divested. Jackson v. Cairns, 20 Johns. 303 . To the same effect: People v. Galloway, 17 Wend. 538 . The deed of a feme covert is void at common law, not merely voidable; and though she acknowledge the execution after her husband’s death, this shall not relate to the time of the original execution. It can be made operative only in virtue of an acknowledgment under the statute. Doe v. Howland, 8 Cow. 277 . By the principles of the common law, if the wife, at the time of or during marriage, were seized of an estate of inheritance in land, the husband upon the marriage became seized of the freehold jure uxoris,
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and he took the rents and profits during their joint lives. After her decease, if entitled to it, he had his estate of courtesy therein. If she survived him, she took the estate in her own right. If the wife dies before the husband, without having had issue, her heirs immediately succeed to her estate. 2 Kent, 130, 133; 2 Blackstone, 126; Vartie v. Underwood, 18 Barb. 561 .
II. It is sought by the complaint herein to attach the covenants and condition of the agreement alleged to have been made in 1846 to the triangular strip of land lying between said lot 47 and the northerly side of 30th street, which was acquired six years thereafter by Susan Alvord, in 1853. This was after the enabling statutes of 1848 and 1849, and consequently the husband of said Susan Alvord had no interest in such land. The principles of law adopted in cases where one having no title to lands executes a deed thereof or mortgage thereon Avith covenants of seizin and of title, and afterward acquires title, it inures to the benefit of . the grantee or mortgagee, and the grantor or mortgagor and his privies in estate, in blood and law, are estopped from questioning that, at the date of the deed or mortgage the grantor or mortgagor had title, is not applicable to this case. Teft v. Munson, 57 N. Y. 97 . There is nothing in the agreement or complaint which indicates or contemplates that any subsequently acquired property' shall be subject to its terms, nor is there anything in said agreement Avhereby Susan Alvord claimed or pretended that she was the then owner of the triangular strip, and that she contracted with reference to it. Estoppel cannot be urged against a person who has no power to contract. A feme covert not being bound by a covenant of warranty contained in a deed executed by her and her husband jointly, for the purpose of con\r eying land which the husband holds in the right of his wife, such covenant will not operate by way of estoppel sc
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as to vest an interest subsequently acquired by her in the grantee in the deed. Carpenter v. Schermerhorn, 2 Barb. Ch. 314 ; Martin v. Dewelly, 6 Wend. 9 ; Clowes v. Vanderheyden, 17 Johns. 167 . A feme covert cannot bind herself personally by a covenant or contract during her coverture. Therefore, a deed executed by husband and wife, with covenant of warranty, does not estop the wife, in an action of execution against her, after the death of her husband, from setting up a subsequently acquired interest in the same lands. Jackson ex dem. Clowes v. Vanderheyden, 17 Johns. 167 . The doctrine that a wife is bound - by her covenant of warranty, entered into during coverture, is considered by Chancellor Kent, 2 Kent’s Com. 140, as at war with the established principle of the common law. Martin v. Dewelly, 6 Wend. 14 .
III. As tor feme coverts, the law is the same with respect to their power of contracting, as of infants, for they have no will but the will of their husbands, and in this equity follows the law. That a wife cannot contract either at law or in equity is decided by Sutherland, J., in Martin v. Dewelly, supra.

The covenant was not a conveyance within the statutory meaning of that term, respecting the acknowledgment of convejmnces by married women. (1 R. S., 758, sec. 10.) It did not purport to grant or convey any estate and none passed or was intended to pass by it.

It is somewhat analogous to the right conferred in McLarney v. Pettigrew, 3 E. D. Smith, 111, in which it was held that an agreement, that beams might be inserted in the wall of plaintiff’s house, for the permanent support of the adjoining house, did not convey an interest in real estate and did not require a writing. The same principle has been applied to party walls. Bosworth, J., in Maxwell v. East River

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Bank, 3 Bosw. 146 , said: “We regard it as settled law, that when the owners of adjoining lots agree, though verbally, that each will erect a building or store on his own lot, and that the dividing wall shall be a party wall, and shall be used. to support the beams and roof of each building, and they build according to such agreement, and with a view to execute it, neither can remove or do anything to impair the ability or sufficiency of such wall, so long at least, as the buildings continue in a condition to subserve in every substantial respect the uses for which they were erected.” The covenant executed by Mr. and Mrs. Alvord and their neighbors indicated no purpose to convey. Its object is expressed in these words. “ The parties to these presents have agreed with, each other to improve their said lots * * * # by leaving eight feet * * * * 0n the front thereof as an open space or court.” It' was intended to insure uniformity of construction in the entire block, that one might build his house back, eight feet, without having the light, air or vision cut off by projecting buildings on either side, and the execution of the plan in. consummation of the understanding was all that was necessary to make it binding on those who agreed to it, or their successors in interest or estate.

Such an agreement is a wise and beneficent one, alike beneficial to all the adjoining owners. . The agreement was made July 14, 1846, and though the title stood in the name of Mrs. Alvord, the husband, under then existing laws, had by virtue of his marital right, the jus disponendi of the property .until his marital relation ceased. He and his wife joined in the execution of the .covenant. The record shows a proper acknowledgment by him, but the certificate as to her is not in conformity to the technical requirements of the then existing statute, in regard to the form of acknowledgment required by a married

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woman. The objection to the defective acknowledgment is personal to her, for she might at any time have corrected it by a new acknowledgment or deed of confirmation, which by way of ratification would have related back to the time when the act needing confirmation was performed. No intervening right or equity prevents this from being done now if it were necessary, but it is not. Mrs. Alvord is still living, but has never repudiated the covenant and does not seek to do so. The houses on the block have been built over thirty years and all in conformity to the covenant. Alonzo A. Alvord, the husband, did not die until 1862, and the houses were therefore erected and the agreement consummated during the life of the husband, whose agreement even regarded as a conveyance, was valid, while he lived, by virtue of his exclusive right of control and of sale. (Ewells Leading Cases, 478; 2 Kent's Com. 132; Vartie v. Underwrood, 18 Barb. 566 .) When the covenant was executed the land of the Alvords received a benefit, and on it was created a corresponding charge which, like other D charges recognized in equity, becomes effective when declared so by the courts. (2 Bishop on Married Women, 212.) A wife even under the then existing law might, by her sole act, charge her estate in equity under some circumstances in which she had not the power of conveyance. (Ib. Story's Eg. Jur., 1399, and see cases collated in Voorhies Code of 1859, p. 173.) She charged it in this instance. It needed no conveyance or writing, to create the easement, even if the right conferred arises to the dignity of that title. The act or consent of those in interest was sufficient. This is established by the case of Tallmadge v. The East River Bank, 2 Duer, 614 , affd. 26 N. Y. 105 , where the equity in regard to the manner of improvement and occupation of certain land grew out of a parol contract made by the owner with the purchaser, and
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it was held binding upon a subsequent grantee with notice, although his legal title was absolute and unrestricted.

This case reviews many authorities and quotes Chancellor Cottenham assaying, that where a covenant of this character has been entered into it would be most “ unjust and unconscientious ” not to enforce it. The opinion also quotes the case of Brewer v. Marshall, 4 C. E. Green, W. Eq. 537, wherein the court agrees with Chancellor Cottenham in saying, that “ it will be found upon examination that these decisions proceed upon the principle of preventing a party having knowledge of the just rights of another from defeating such rights, and not upon the idea that the engagements enforced, create easements or are of a nature to run with the land.”

Tallmadge v. East River Bank (supra), maintains this doctrine in its strongest aspect. In that case Davis exhibited a plan of intended location of lots on St. Mark’s Place, showing that the houses Avere to be set back eight feet. No mention of this whatever was made in the conveyances. The court held that, “ It is to be presumed that they would not have bought and paid their money except upon this assurance. It is to be presumed that relying upon this assurance, they paid a larger price for the lots than otherwise they would have paid. Selling and conveying the lots under such circumstances and with such assurances, though verbal, bound Davis in equity and good conscience to use and dispose of all the remaining lots so that the assurances upon which Maxwell and others bought their lots could be kept and fulfilled.' This equity attached to the remaining lots so that any one subsequently purchasing from Davis any one or more of the remaining lots, with notice of the equity existing between Davis and Maxwell and others, the prior purchasers, would not

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stand in a different situation from Davis, but would be bound by that equity.”

And the court further held “ that the uniformity of the position of all the houses on St.- Mark’s Place was probably sufficient alone to put the defendant on inquiry.” (See, also, Maxwell v. East River Bk., 3 Bosw. 124 ; Perkins v. Coddington, 4 Robt. 647 ; Green v. Creighton, 7 R. I. 1 .)

One of the leading cases on this subject is Whitney v. Union Railway Company, 11 Gray (Mass.), 363, where the same opinion is held in the following language : u In like manner, by taking an estate from a grantor with notice of valid agreements made by him with the former owner of the property, concerning the mode of occupation and use of the estate granted, the purchaser is bound in equity to fulfil such agreements with the original owner, because it would be unconscientious and inequitable for him to set aside and disregard the legal and valid acts and agreements of his vendors in regard to the estate, of which he had notice when he became its purchaser. In this view the precise form or nature of the covenant or agreement is quite immaterial. It is not essential that it should run with the land.”

The authorities, however, in this state go so far as to hold that these covenants run with the land, and without an assignment of the covenants, are enforcible ; and any owner as well as occupant can enforce the right. Trustees, etc., v. Cowen, 4 Paige, 511; Brouwer v. Jones, 23 Barb. 153 .

One of the grounds upon which this right is put is, “ when it appears by a fair interpretation of the words of a grant that it was the intent of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, such right will be deemed appurtenant to the land of the grantor and binding.” Whitney v. Union Ry. Co., 11 Gray,

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367 ; Hills v. .Miller, 3 Paige, 254. “ Cresswell, J., seems to regard it rather as a negative servitude upon the land adjacent to the tenement than an operative easement in favor of tenement itself.” Washburn on Real Prop., 4th ed., 649. On the general doctrine of the above cases, this court ordered a projection of the Burlington flats (in the same street) to be removed. Dubois v. Darling, 44 N. Y. Supr. Ct. 436 . And a defendant was enjoined from maintaining a tenement house. Ammerman v. Dean, 57 N. Y. Supr. Ct. 175 . This doctrine has been somewhat extensively referred to by us, not merely to illustrate the principles upon which it stands, but for the purpose of showing that these covenants are held sacred in equity and are enforced as a matter of strict justice.

Injunctions in this class of cases are granted almost as of course upon proof of a breach of the covenant. (3 Pom. Eg. Jurisp., p. 372, § 1342; Bispham Prin. of Eg., p. 414, § 461, and see Stewart v. Winters, 4 Sandf. Ch. 587 .) The Alvords compelled all the other property owners to build on the line, and held them to the agreement,- and it is now claimed by their remote grantee, that although he had notice of the covenant, and' knew of the prior equity, he can disregard it, and build out to the line of the street, and exclude the adjoining owners from light, air and vision on the technical ground that Mrs. Alvord was incompetent to contract, and that her husband’s power of control terminated with his death in 1862, and hence whatever vitality the covenant ever had, ceased at that time. In other’words, that notwithstanding these facts, (1) that the covenant may have been valid in 1846 ; (2) that Mr. and Mrs. Alvord sold the property in 1857 with reference to it, and without repudiation ; (3) that the covenant had been fully executed by the erection of' buildings ‘in conformity to its terms over thirty years ago, yet, in consequence

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of Mr. Alvord’s death in 1862, the covenant was spent and is now inoperative. No logical reasons have been advanced to support such an extraordinary claim, and our intention has not been called to any direct authority which sustains the proposition stated.

The defendant bought with knowledge of the covenant and took subject to it. (2 Pom. Eq. Jurisp., p. 14; Hodge v. Sloan, 107 N. Y. 245 , 250; Trustees of Columbia College v. Lynch, 70 Ib. 450.) It was binding on the Alvords and is certainly valid as to him, a remote grantee charged with notice of the prior equity. (lb.) We are next called upon to consider the objection urged by the defendant, that ten feet of the front of the building is not affected by the covenant. This triangular piece was purchased by Susan Alvord, November 23, '1853, to straighten the line of her lot,. and the whole parcel was sold together as one lot, April 1, 1857, and it was built upon during that year, in conformity to the requirements of the covenant, and thus the entire structure is brought within its provisions, by the principles declared in Tallmadge v. The East River Bk., supra. The point, as to change of character of the neighborhood is equally without merit. Where the use of land is restricted to private residences and changes in the neighborhood unfit the property for that use, this circumstance may operate to defeat the covenant in that regard. Trustees of Columbia College v. Thatcher, 87 N. Y 311 . The necessity presented for relaxing the rule in that case does not exist here. The covenant is of a different character, and falls within the principles decided in Lattimer v. Livermore, 6 Daly, 505 , affd. 72 N. Y. 174 , in which it was held that a covenant for the enjoyment of light, air and vision, was not discharged by a mere change of neighborhood, as there was no reason why an adjoining property owner by that circumstance should have less of either than his covenant called for.

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The plaintiff established her right to equitable relief by injunction, and it was error to vacate the temporary writ. The order appealed from must, therefore, be reversed and the application to continue the injunction granted, .with costs.

Freedman, J., concurred.

Cases cited