
    Mary E. Bradley, App’lt, v. Isaac Walker, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed May 4, 1891.)
    
    Married women—Conveyance—Covenant—Acknowledgment
    A covenant was signed by defendant’s grantors and others, in 1846, whereby they agreed to reserve an open space in front of certain lots, and not build thereon. One of the grantors was a married woman, and the covenant was not acknowledged by her separate and apart from her husband, as was then required by 1 Rev. Stat., 758, § 10, for all conveyances by married women. Held, that the covenant was not a conveyance within the statutory meaning of the term, and that defendants could be enjoined from building upon the reserved space.
    Appeal from an order made at special term, February 9, 1891, vacating an ex parte injunction theretofore obtained forbidding the violation of a covenant, and denying an application to continue said injunction pendente lite.
    
    The covenant was signed by the defendant’s grantors and others, .and they thereby agreed to reserve an open space in front of certain lots and not build thereon.
    The court below conceded that the merits were with the appellant, but vacated the injunction on a question of law, viz. :■ That ■the covenant which was violated having been executed in 1846, br Mrs. Alvord, who was a married woman, although acknowledged by her, was not so acknowledged separate and apartfrom, her husband, and that, therefore, no estate passed and the defendant was not bound by the equity of the covenant.
    
      G. W. Cotterill, for app’lt; Henry Hoyt, for resp’t.
   McAdam, J.

—The covenant was not a conveyance within the statutory meaning of that term, respecting the acknowledgment ■of conveyances by married women. 1 B S., 758, § 10. It did not purport to grant or convey any estate and none passed or was intended to passed 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. Bos worth, J., in Maxwell v. East River Bank, 3 Bosw., at p. 146, said: “We regrrd 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. Alvold 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 * * * 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 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 making 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/ms 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 acknowlegment required by a married 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 confirmation, would have related back to the time when the act needing ratification 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. Ewell’s Leading Cases, 478 ; 2 Kent’s Com., 132; Vartie v. Underwood, 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 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 pow;er of conveyance. Id., Story’s Eq. 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, aff’d 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 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 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, N. J. 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 oía nature to run with the latid.’’

Tallmadge v. East Riven 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 were to be set back eight feet No mention oí this whatever was made in the conveyance. 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 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 Bank, 3 Bosw., 124; Perkins v. Coddington, 4 Robf., 647; Greene v. Creighton, 7 R. I., 1.

One of the leading cases on this subject is Whitney v. Union Railway Company, 11 Gray (Mass.), 364, where the same opinion is held in the following language :

“ In like manner, 7>y 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 fulfill 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 ground 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 grant will be deemed appurtenant to the land of the grantor, and binding.’! Whitney v. Union R. R. Co., 11 Gray, 365; Hills v. Miller, 3 Paige,. 455.

“Cresswell, J., seems to regard it rather as a negative servitude upon the land adjacent to the tenement, than an operative ease- ’ ment in favor of tenement itself.” Washburn on Real Prop., 4th1 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., 436.

And a defendant was enjoined from maintaining a tenement, house. Amerman v. Dean, 57 N. Y. Supr., 175; 26 N. Y. State Rep., 165.

This doctrine has been somewhat extensively referred to by usr not merely to illustrate the principles upon which it stands, but for the purpose of showing that these covenants are held sacred in equity, ánd 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. Eq. Jurisp., p. 3722, § 134; Bispham Prin. of Eq., p. 514, § 461, and see Steward v. Winters, 4 Sandf., 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 oí 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 the 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 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 attention 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. Juris., 14; Hodge v. Sloan, 107 N. Y., 245, 250; 11 N. Y. State Rep., 770; Trustees of Columbia College v. Lynch, 70 N. Y., 450. It was binding on the Alvords and is certainly valid as to him, a remote grantee charged with notice of the prior equity. Id. 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, Fovember 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. Thacher, 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; aff’d 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.

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.

Sedgwick, Oh. J., and Freedman, J., concur  