Boyden v. Roberts

111 N.W. 701, 131 Wis. 659, 1907 Wisc. LEXIS 243

• Court: Wisconsin Supreme Court
• Decided: May 21, 1907
• Status: Published

Opinions

The following opinion was filed March 19, 1907:

Kerwin, J.

The important question presented for consideration under the assignments of error is the effect which should be given to the Johnston-Weiss agreement set out in the statement of facts as regards the property described therein. The deed to Weiss and the Johnston-Weiss contract were executed contemporaneously ás parts of one transaction, and hence upon familiar principles must be read together as one instrument. Blakeslee v. Rossman, 43 Wis. 116; Gillmann v. Henry, 53 Wis. 465, 10 N. W. 692; Stapleton v. Brannan, 102 Wis. 26, 78 N. W. 181; Security T. & L. Ins. Co. v. Ellsworth, 129 Wis. 349, 109 N. W. 125. Both instruments were executed in pursuance of a general scheme, as set forth in the agreement, for the purpose of preserving the character of the Forest den property as first-class residence property “by the present owners and future purchasers of the same.” The agreement expressly prohibiting the use of the property for other purposes named therein clearly refers to all property described, as well that retained by Johnston as that conveyed to Weiss. The deed and agreement were recorded in the office of the register of deeds of the proper county. It seems manifest from the express terms of the agreement, to the effect that it should be binding on all purchasers of any portion of the property and upon the heirs, executors, administrators, and assigns of each party, and that the covenant should run with the land, that the parties intended to impress the property with an equitable servitude in the nature of a restriction. This restriction obviously was re-garcled of value to the whole property and. inserted for the benefit of those who might become owners of separate parcels and for their mutual protection. No reason is perceived why such a restriction should not be as binding in equity upon any grantee of a portion of the premises with notice as if inserted in a deed to him. Clearly the restriction was impressed upon all the property, and upon the transfer of any portion it passed to the grantee burdened with the restriction. It is apparent from the established facts that the agreement was executed in pursuance of a general scheme for the benefit and improvement of the property and not for the benefit of the grantor alone, and that each purchaser with notice took the portion conveyed with the right to enforce the restriction against other grantees of portions of the property charged with the restriction. 2 Pom. Eq. Jur. (3d ed.) § 689; 4 id. § 1342; 3 id. § 1295. The very object of the restriction was to enhance the value of the property by making it desirable for residence property, and such enhanced value was obviously intended to-be secured by imposing upon all the property a servitude in the nature of a restriction which could be enforced by the grantees inter sese.

It is insisted, however, by appellants that the restriction cannot be enforced because not inserted in the deeds to either defendants or plaintiffs; that there was no agreement that the restriction should be inserted in the deed from Johnston of the Johnston tract; that there is-no evidence that subsequent purchasers of the Johnston tract should have the benefit of the covenant against each other; and that there is no evidence that the covenant was part of the subject matter of the purchase by any defendant. The agreement itself meets all these objections. It was designed by its terms to be a general plan or scheme for the enhancement of the value of the property by the protection of all purchasers of any portion of the property from the use of any other portion otherwise than for first-class residence property. It was by the terms of the agreement made a covenant running with the land, for the manifest purpose of securing its observance by the owner of any portion as against the owner of any other portion. This right by each grantee was a valuable right, and was therefore a part of the subject matter of the purchase. So the covenant in the form of a restriction being appurtenant to the land and every parcel of it, the right to enforce it at least in equity by any grantee against any other grantee passed with the land. The whole tract of land being by the Johnston-Weiss agreement impressed with an equitable servitude for the benefit of all purchasers under the scheme that the property should be preserved for first-class residence property, and other uses named prohibited, each grantee is entitled to enforce such restriction in equity. 2 Pom. Eq. Jur. (3d ed.) § 689; 1 Jones, Real Prop. in Conv. § 780. Where the general plan or scheme of an agreement restricts property to a certain use and prohibits other uses, it is immaterial whether the cove: nant runs with the land or not, where the agreement is made for the mutual benefit of all the land though held by different owners. In such case equity will enforce such servitude as between the several grantees of parts of the premises with notice. 1 Jones, Real Prop. in Conv. §§ 780, 781, 782; Austerberry v. Oldham, L. R. 29 Ch. Div. 750; Jeffries v. Jeffries, 117 Mass. 184, 188; De Gray v. Monmouth Beach C. H. Co. 50 N. J. Eq. 329, 24 Atl. 388; Coles v. Sims, 5 De Gex, M. & G. 1; Nottingham P., B. & T. Co. v. Butler, L. R. 15 Q. B. Div. 261; Winfield v. Henning, 21 N. J. Eq. 188. Most of the cases cited by counsel for appellants turn upon the fact that the restrictive covenant was for the benefit of the grantor alone, hence was not enforceable between grantees. But in these cases the right to enforce a restrictive covenant appurtenant to the property between grantees is recognized: Badger v. Boardman, 16 Gray, 559; Sharp v. Ropes, 110 Mass. 381; Haines v. Einwachter (N. J. Eq.) 55 Atl. 38; Hemsley v. Marlborough H. Co. 62 N. J. Eq. 164, 50 Atl. 14. In Badger v. Boardman, 16 Gray, 559, 560, the court said:

“If it appeared that the parties to that conveyance intended' to create or reserve a right in the nature of a servitude or easement in the estate granted, which should he attached to and he deemed an appurtenance of the whole of the remaining-parcel belonging to the grantor, of. which the plaintiff’s land forms a part, then it is clear, on the principles declared in the recent decision of Whitney v. Union R. Co. 11 Gray, 359, that the plaintiff would he entitled to insist on its enjoyment, and to enforce his rights hy a remedy in equity.”

The controlling question in all cases seems to he whether the grantor intended to create an equitable servitude which should he appurtenant to the estate or intended for the mutual benefit of the respective grantees of portions of the estate for whose benefit the covenant was made. Beals v. Case, 138 Mass. 138; Tobey v. Moore, 130 Mass. 448; Hano v. Bigelow, 155 Mass. 341, 29 N. E. 628; Badger v. Boardman, 16 Gray, 559; Summers v. Beeler, 90 Md. 474; 45 Atl. 19; Hopkins v. Smith, 162 Mass. 444, 38 N. E. 1122; Clark v. McGee, 159 Ill. 518, 42 N. E. 965. Whenever it fairly appears from the words of the grant that it was the intention of the parties to-preserve a right in the nature of an equitable servitude in the property granted for the benefit of -other land owned by the grantor and embraced within the same tract as the parcel granted, such servitude becomes appurtenant to the land of the grantor, and the burden thus created will pass to and be binding upon subsequent grantees of different portions of such-tract. Whitney v. Union R. Co. 11 Gray, 359; Parker v. Nightingale, 6 Allen, 341; Linzee v. Mixer, 101 Mass. 512; Peck v. Conway, 119 Mass. 546; Clark v. Martin, 49 Pa. St. 289; Watrous v. Allen, 57 Mich. 362; St. Andrew’s L. Ch. Appeal, 67 Pa. St. 512; Mann v. Stephens, 15 Sim. 377. The question is one resting upon the intention of the grantor respecting the restriction or servitude, and whether the restriction in the conveyance should apply ..to the portion conveyed only, or to the other lands of the grantor included in a general scheme for the benefit of all the lands of the grantor embraced within such scheme, and the form of the instrument used to create such restriction or servitude is not material. Words of covenant are as effectual as words of grant. Hogan v. Barry, 143 Mass. 538, 10 N. E. 253; Ladd v. Boston, 151 Mass. 585, 24 N. E. 858; Jones, Easements, § 113; Tallmadge v. East River Bank, 26 N. Y. 105; Curtiss v. Ayrault, 47 N. Y. 73; Schwoerer v. Boylston M. Asso. 99 Mass. 285; Gilmer v. Mobile & M. R. Co. 79 Ala. 569, 58 Am. Rep. 623; Trustees v. Lynch, 70 N. Y. 440; Wetmore v. Bruce, 118 N. Y. 319, 23 N. E. 303; Atlantic City v. New A. P. Co. 67 N. J. Eq. 284, 58 Atl. 729; Horn v. Miller, 136 Pa. St. 640, 20 Atl. 706. In Greene v. Creighton, 7 R. I. 1, tenants in common by deed dedicated a strip of land to be used as a highway, upon which their lots, on both sides of it, were to front, inserting in such deed a covenant “for themselves, their heirs and assigns, respectively,” that no building should, be erected within eight feet of the street line. This covenant was held “a grant, in fee, to each, of a negative easement in the land of all, and as such capable, upon the disturbance of the easement, of being enforced by the appropriate remedies at law and in equity.” It is considered that the Johnston-Weiss agreement was sufficient to impress all of the Forest Glen property, as well that portion retained by Johnston as that conveyed to Weiss, with a servitude in the nature of a restriction which passed as appurtenant to the property. 1 Jones, Real Prop. in Conv. § 784; Jones, Easements, § 110; Peabody H. Co. v. Willson, 82 Md. 186, 32 Atl. 386; Burbank v. Pillsbury, 48 N. H. 475; Amerman v. Deane, 132 N. Y. 355, 30 N. E. 741. Some point is made by counsel for appellants to the effect that the restriction in question did not enter into the consideration for the purchase by defendants of their respective parcels. Upon the facts established by the findings it cannot be said that the Testriction was not an inducement to purchase. On the contrary it is quite obvious that it materially affected the value of the property for first-class residence purposes. The defendants all had notice of this restriction, and it cannot he .said that it did not furnish an inducement, or enter into the consideration of the purchase. Hills v. Miller, 3 Paige Ch. 254; Tallmadge v. East River Bank, 26 N. Y. 105. The restriction being intended to apply to all of the property included in the Forest Glen tract, no covenant was necessary in the deeds from either Weiss or Johnston in order to enable the respective grantees with notice of the terms of the agreement to enforce the restriction inter sese. Jones, Easements, §§ 110, 113; Whatman v. Gibson, 9 Sim. 196; St. Andrew's Luth. Ch. Appeal, 67 Pa. St. 512; Watrous v. Allen, 57 Mich. 362, 24 N. W. 104; Curtiss v. Ayrault, 47 N. Y. 73; Rowland v. Miller, 139 N. Y. 93, 34 N. E. 765; Ladd v. Boston, 151 Mass. 585, 24 N. E. 858; Greene v. Creighton, 7 R. I. 1; Gilmer v. Mobile & M. R. Co. 79 Ala. 569, 58 Am. Rep. 623; Wetmore v. Bruce, 118 N. Y. 319, 23 N. E. 303; Barrow v. Richard, 8 Paige Ch. 351; 1 Jones, Real Prop. in Conv. §§ 784, 791, 792; Burbank v. Pillsbury, 48 N. H. 475.

Under the second and third assignments of error the question of notice is discussed. It is not claimed by appellants that record of the agreement would not constitute constructive notice if it were entitled to record, but it is insisted that it was not entitled to record within the recording acts. It is argued that the agreement does not create an “estate or interest” in land. But the statute goes further than merely providing that only an instrument which creates an' “estate or interest” in land shall be entitled to record. It provides that “every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected in law or equity,” is a “conveyance” within the meaniiag of the recording act. Even if it be conceded that the restriction in the agreement does not create “an estate or interest in real estate” witbin tbe meaning of sec. 2242, Stats. (1898), it seems clear under tbe authorities that tbe instrument is one by which tbe title to tbe real estate therein described is “affected in law or equity.” We think the authorities heretofore cited are ample upon this point, but in addition thereto we call attention to the following : Parker v. Nightingale, 6 Allen, 341; Crawford v. Witherbee, 77 Wis. 419, 46 N. W. 545; Linzee v. Mixer, 101 Mass. 512; Scudder v. Watt, 98 App. Div. 228, 90 N. Y. Supp. 605; Uihlein v. Matthews, 172 N. Y. 154, 64 N. E. 792; Halle v. Newbold, 69 Md. 265, 14 Atl. 662. It is argued by respondents that the plaintiff TJihlein had actual notice, but we do not deem it necessary to consider this question, since we hold that the agreement between Johnston and Weiss was entitled to record, and, having been duly recorded, was constructive notice.

It is further contended that the erection of the proposed clubhouse, and boat landing to be used in connection therewith, does not constitute a violation of the restriction imposed upon the Forest Cien property under the Johnston-Weiss agreement. The restriction is against the sale or use of any portion of the Forest Cien property “for hotel, club, or camping purposes, or for any reformatory, charitable, or penal institution.” It is quite clear from the language of the restriction as well as from the provisions in other parts of the agreement that it was intended by the parties to the agreement that the use of the property by all clubs should be restricted. Obviously the word “club” in this agreement was used in its most comprehensive sense, and intended to embrace just such a clubhouse as the plaintiffs propose to construct. The term “club” is defined by Webster as “An association of persons for the promotion of some common object, as literature, science, politics, good fellowship, etc.” The clubhouse here-intended to be constructed, as appears by the' established facts, to be used in connection with a pier, or landing place for steamboats, and tbe noise, smoke, and inconvenience necessarily attendant upon tbe nse of sncb landing place by steamboats, and tbe nse of sncb clnbbouse and golf gronnds in connection therewith, wonld be not ^only a violation of tbe. letter bnt of tbe spirit of tbe agreement. It cannot be donbted npon the established facts, as well as npon tbe face of the agreement itself, that the purpose of tbe parties was to preserve tbe character of tbe property as first-class residence property and to exclude sncb clubs and clubhouses therefrom as tbe plaintiffs propose to establish. But it is not necessary to go outside of tbe express terms of tbe agreement itself, because upon its face it clearly and in unequivocal terms prohibits tbe use of the property for hotel, club, or camping purposes, so that tbe restriction includes clubs of all kinds.

Tbe case presents many interesting questions, all of which have received careful consideration by tbe court, and for tbe reasons given in tbe foregoing opinion it is considered by tbe court that tbe judgment below should be .affirmed.

By the Gourt. — Tbe judgment of tbe court below is affirmed.