Erichsen v. Tapert

138 N.W. 330, 172 Mich. 457, 1912 Mich. LEXIS 942

• Court: Michigan Supreme Court
• Decided: November 8, 1912
• Docket: Docket No. 138
• Status: Published

Opinions

Brooke, J.

(after stating the facts). The bill seems to ,have been filed solely in reliance upon the contract, and the answer meets the averments of the bill. The prayer for relief is that defendants be enjoined from erecting or causing to be erected upon said lot any building or buildings other than a barn or other outbuildings appurtenant to a single dwelling house for said lot, and, that they be perpetually enjoined from using any dwelling thereon for any other than dwelling purposes for a single family. It is obvious that the decree as entered affords no protection to complainants if, as they aver, defendants should conclude to build in place of the stores a flat building for residence purposes only, upon the rear portion of the lot in question. In such event, complainants would be compelled to file another bill to determine whether they are entitled to the relief sought in this proceeding. We think the meaning and effect of the agreement was fairly in issue in the court below, and that a determination of that issue should have been there made. In holding the defendants precluded from erecting structures for business purposes upon said lot, the court was clearly right, under our former decision. That decision did not, however, rest upon the agreement here in question. If it was in existence at the time of the trial of Tillotson v. Gregory in the lower court, it was not produced.

To fully define the rights of the parties, it is necessary to pass upon the agreement. Defendants contend that the agreement by its terms was not to go into effect until executed by the owners of all of the 50 lots, and that, as only a bare majority (26) signed, the contract never became effective or binding on those who did sign. A careful examination of the contract convinces us that it will not support this construction. The parties are described as—

“Owners of one or more lots in the Chandler Ave. subdivision * * * described as lots 50 to 74 both inclusive, situate on the north side of said Chandler Ave. and also lots numbered from 25 to 49 both inclusive, situate on the south side of Chandler Ave.”

Nowhere in the contract does it appear that the owners of all of the lots described (numbered from 25 to 74) must sign the contract before it shall become operative or binding upon those who did sign. Moreover, the testimony in the case clearly shows that, when the contract was circulated among the lot owners, those who signed were advised that it was not thought possible to secure the signatures of all those who owned lots in the specified area.

We think the mutual agreement to observe the restriction was an adequate consideration passing from each signer to the other signers, and likewise that it was valuable, clearly not so valuable as if all had signed, yet having a tendency to raise and maintain the character of Chandler avenue as a residence street.

It is next contended by defendants that the agreement constitutes a purely personal covenant, binding upon nobody but those who signed, if binding upon them. The contract reads:

“In consideration of the mutual covenants herein contained (we) do hereby agree to and with each other, and for our and each of our heirs, executors, administrators and assigns, as follows.”

The word “assigns” comprehends all those who take either immediately or remotely from or under the assignor, whether by conveyance, devise, descent or act of law. 1 Words & Phrases, p. 577, and cases cited. There is no doubt that these defendants, who hold their title from Vogt, who signed the contract, come within the legal definition of the word. The expressed purpose of the contract, and the fact that it was so executed as to entitle it to record, clearly demonstrates that it was intended to be binding not alone upon the signers but upon all their successors in title as well. That the remedy may be had by and against the grantees of the respective parties, is authoritatively settled. Watrous v. Allen, 57 Mich. 362 (24 N. W. 104, 58 Am. Rep. 363); Whitney v. Railway Co., 11 Gray (Mass.), 359 (71 Am. Dec. 715); De Gray v. Club House Co., 50 N. J. Eq. 329 (24 Atl. 388); Atlantic Dock Co. v. Leavitt, 54 N. Y. 35 (13 Am. Rep. 556); Brouwer v. Jones, 23 Barb. (N. Y.) 153; Hubbell v. Warren, 8 Allen (Mass.), 173. See, also, 5 Am. & Eng. Enc. Law (2d Ed.), p. 11 et seq.

The fact that the restriction is created in an instrument independent of the deed conveying title is of no consequence, as long as there is a valuable consideration moving to and from the signers.

It is further urged that the restriction has been waived. by the complainants as to lot 49. It is shown that upon the rear end of said lot a barn some 35 by 37 feet was erected without protest, after the contract was executed. We are not .called upon here to determine what outbuildings are reasonable and necessarily appurtenant to a dwelling house for a single family. The erection of the structure contemplated by defendants, whether a flat building or stores, cannot be justified upon the ground that it is a necessary appurtenance to a single dwelling. The fact that it may be less obnoxious than the barn has no bearing upon the question.

The claim is made that to enforce the restriction as to the rear portion of lot 49 would be of no advantage to complainants, while it would cause serious loss to the defendants. We do not think it can be said that the erection of such a structure would not be injurious to lots 45 and 47, owners of both of which signed the contract.

The view presented by the rear end of a row of stores or of a flat building is, we believe, considered neither attractive nor artistic. This building would abut upon the easterly line of lot 47 for nearly half its length, and would be but 50 feet distant from lot 45.

The decree of the court below will be so modified as to enjoin defendants from erecting any structure upon lot 49, except such as are permitted by the restrictive covenants contained in the agreement. Complainants will recover costs of this appeal.

Moore, C. J., and Steere and Stone, JJ., concurred with Brooke, J.