
    Homer Knapp, Resp’t, v. George J. Hall, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1893.)
    
    Deed—Restrictions as to use of premises—Knowledge of purchaser.
    In an action to enjoin defendant from building a bouse within fifteen feet of the street line, it appeared that M. & W. were the owners of a parcel of city land which they divided into 117 lots, which were placed on the market and a firm of real estate agents employed to conduct the sale ; they sold a number of the lots subject to the condition that the houses to be ■erected thereon should stand not less than fifteen feet back from the street line. J. purchased four lots, subject to such condition, and sold one to plaintiff; defendant purchased two lots without condition and commenced to build within fifteen feet of the street line. Defendant testified that he did not know that there were any conditions'on the lots purchased by him, although he knew there were on others; that he inquired of M. and was told by him and his attorneys that there were not; that he had the title examined and received a like report. M. & W. testified that before any of the lots were sold they informed the real estate agents that those in question were withdrawn from the market, and that they understood it was generally known that they were to be sold without restrictions. Held, that the finding that defendant knew that the sales made to plaintiff and others were made under the oral representations that the restriction should cover all the lots, including those purchased by him, was against the weight of evidence.
    Appeal from a judgment entered upon a decision of the Monxoe equity term.
    
      Theodore Bacon, for app’lt; John F. Dorthy, for resp’t.
   Haight, J.

This action was brought to enjoin the defendant from building a house within fifteen feet of the street line.

In 1887, Fred S. Hinges and Cass Williams were the owners of a parcel of land in the city of Rochester known as the Beech wood 'Tract, which they caused to be surveyed and mapped, dividing it into 117 city lots. The lots were then placed upon the market, .and the firm of Culver & Crane, real estate agents, was employed to conduct the sale. This firm sold a number of the lots subject to the following conditions: That the building or dwelling house to be erected thereon shall stand not less than 15 feet back from the front of the lot and from the line of the avenue, an d shall not be of less value than $1,500, and the main part shall be two full stories high, and the bam or other buildings or structures appurtenant to such building or buildings shall be put on the rear portion of the lot; and that no wine, spirituous or malt liquors shall be made, manufactured, kept for sale or sold on the premises for a profit or otherwise. On the 5th day of October, 1888, one James Harden purchased four lots, including lot Ho. 76, subject to the conditions and restrictions aforesaid, which last mentioned lot he conveyed to the plaintiff on the 18th day of December, 1890. On the 10th day of April, 1891, the defendant purchased adjoining lots, Hos. 77 and 78, without conditions or restrictions of any kind, and commenced to build thereon, within 15 feet of the street line.

The trial court found as facts, that the defendant, before he purchased lots 77 and 78, had knowledge and notice that the covenants and restrictions mentioned had been imposed by the grantors upon all the lots of the tract lying west of Chamberlain street. An exception has been taken to this finding: and the only question which we shall consider is, as to whether it is against the-weight of evidence.

The conditions and restrictions mentioned were inserted in the deeds of the purchasers of lots in this tract, but there is nothing in their deeds as to any covenant or agreement on the part of the grantors that the other lots in the tract shall only be sold upon-like conditions and restrictions. We shall assume, however, that to each purchaser the agents of the grantors stated and represented that all of the lots would be sold subject to the conditions and restrictions named. We shall also assume that the defendant knew that the prior purchasers of lots had taken them subject to-these conditions and restrictions. This, however, is not enough to entitle the plaintiff to maintain his action. He must show that the defendant also knew that at the time the plaintiff purchased his lot he was induced to make such purchase under the representations" of the grantors or their agents that the same conditions and restrictions were to be extended to the lots purchased by the defendant. Has this fact been established? As we have seen, there is nothing in the deeds or in the records thereof that shows that such representations were made. The plaintiff testified to an admission on the part of the defendant to the effect that he knew of the restrictions on the Beechwood Tract before he purchased, that he paid a big price for the lots and proposed to utilize them as he saw fit, or to his tiwn personal advantage. The defendant did not, however, admit that he knew that the conditions and restrictions covered all of the lots of the tract, including those purchased by himself. On the other hand, he testified that he did not know that there were any restrictions upon the lots purchased by him ; that he inquired of Hinges, the grantor, and was informed that there wrere not; that he also inquired of the grantors’ attorneys who had drawn the deeds conveying the lots in the tract, and was informed that they were all right: that he had the title examined by attorneys, and received a like report.

Hinges testified that shortly after the tract had been surveyed and put in the hands of Culver & Crane to sell, and before any of the lots had been sold, he withdrew from the agents lots 77, 78, 115 and 116, and informed them that these lots were to be withdrawn from the market, and were to be reserved for business purposes ; that lots 115 and 116 are separated from lots 77 and 78 by Chamberlain street; that in 1887 lots 115 and 116 were sold to the Rochester & Gflen Haven Railroad Company- without restrictions, which company has constructed a depot thereon, and that as he understood it, it was generally known that no restrictions were to be placed upon lots 77 and 78. Williams, the other grantor, also testified to the withdrawing of these lots, that they were to be reserved for business purposes, and were not to be restricted. Their testimony is corroborated by other witnesses.

The trial judge, in his opinion, says, that when Hinges and Williams reserved these lots “ nothing was said as to their exemption from such restrictions, and. it seems that Culver & Crane continued thereafter to assure purchasers, and in one instance at least in Mr. Hinges’ presence, that these restrictions covered the entire tract.” Assume this to be so, but where is the evidence that the defendant knew of such representations ?

Again, the trial judge says, “But the most conclusive evidence upon this point is defendant’s own admission, upon his cross-examination, that when he purchased lots 77 and 78 he knew that all the other lots had been sold subject to restrictions.” Very true. He knew this, but, as he testified, he did not know that they purchased under the representation that the restrictions should also cover the lots that he purchased.

The trial judge further states, “ With this information in his possession the duty was certainly imposed upon the defendant of ascertaining whether or not the restrictions which applied to the other lots in any manner affected those he was negotiating for.” He did inquire. He inquired of the grantors, and of the attorneys who had done the conveyancing upon the tract for the grantors; he had the records searched, and attorneys pass upon the title. But it is said, “ He appears to have scrupulously avoided making any inquiries of parties who were in a position to know the precise situation of affairs.”

Did not the grantors know the precise situation of affairs ? They were the parties who had executed the conditions and imposed the restrictions. And again, “Had he spoken to the owners of adjoining lots he might easily and speedily have ascertained that they had made their purchases upon assurance that all the lots were to be restricted alike, and his omission of this plain duty, it seems to me, establishes such negligence on his part as cannot be attributed to an ordinarily prudent man, and consequently charges him with the knowledge he ought to have possessed.” The present owners would have known nothing of the oral representations made by Hinges and Williams to induce purchasers to take the lots unless they were the original purchasers. It follows, therefore, that it was the duty of the defendant to look up the original purchasers of the lots and get their version as to what oral representations were made to them to induce them to purchase; that failing in this he must have conditions and restrictions imposed, upon the use of his premises.

This case was once considered by this court upon an appeal from an order denying the defendant’s motion to vacate and set aside an injunction pendente lite. 43 St. Rep., 95.

Lewis, J.,

in delivering the opinion of the court, says: “If the rights and interests of the appellant to the lands which he holds-under a deed containing upon its face no restrictions, are to-have easements or servitudes imposed upon them by the parol declarations and promises made to others by his grantors, the proceedings should not be based upon shadowy and uncertain evidence.” And yet the trial court has found that because the defendant neglected to look up the original purchasers and to question them as to what oral representations were made, that he is chargeable with knowledge that such representations were made. We think this is going too far. It would practically nullify the recording act and would permit titles to lands to be defeated if the purchaser neglects to inform himself as to the oral understandings of his neighbors. A purchaser of lands is chargeable-with notice of facts affecting the title which could be discovered, by an examination of the deeds or other muniments of title; and where there is an outstanding mortgage or lien unrecorded and he has had notice of its existence, it becomes his duty to inquire and ascertain the extent of the rights of the person holding the same. Williamson v Brown, 15 N. Y., 354; Cambridge Valley Bk. v. Delano, 48 id., 326; Ellis v. Horrman, 90 id., 466.

But these cases do not go to the extent of sustaining the respondent’s claim.

It appears to us that the defendant made all of the inquiry usually made by prudent men, and that the finding that he knew that the sales made to the plaintiff and other purchasers were-made under the oral representations that the conditions 'and restrictions named should cover all of the lots in the tract, including those purchased by him, is against the weight of evidence.

Judgment should be reversed and a new trial ordered, with costs to abide the final award of costs.

Dwight, P. J., Lewis and Macumber, JJ., concur.  