Brown v. O'Brien

47 N.E. 195, 168 Mass. 484, 1897 Mass. LEXIS 274

Opinion

Allen, J.

Where an independent covenant is inserted in a mortgage, it does not necessarily expire with the payment and discharge of the mortgage, but it is a matter of construction whether it was intended to survive the mortgage or not. Ober v. Brooks, 162 Mass. 102. Green v. Low, 22 Beav. 625. In the present case, it is quite clear that the covenant was intended to survive. The debt secured by the mortgage was payable in five years. The mortgagor covenanted with the grantee and her heirs and assigns that no building or part of a building should be erected upon the granted premises for five years from the date of the mortgage, and that no building or part of a building erected thereafter upon the granted premises should be more than two stories in height, and that these covenants should be binding upon and available to heirs and assigns, and run with the land for the benefit of the adjoining land of the grantee; and in the condition it was further provided that, upon payment and other performance by the grantor, the deed, with the exception of the covenants above recited, should be void. This clearly shows an intention that the operation of the covenants should not cease with the discharge of the mortgage.

The covenant that the land should not be used for buildings of over a certain height was in effect the grant of an easement in favor of the adjoining premises, the violation of which by the defendant was rightly restrained. Chase v. Walker, 167 Mass. 293. Ladd v. Boston, 151 Mass. 585. Hogan v. Barry, 143 Mass. 538.

Decree affirmed.