
    Hayward Homestead Tract Association v. Miller.
    (Supreme Court—Monroe Equity Term,
    December, 1893.)
    An agreement between the owners of property restricting the right to erect buildings thereon may be made by parol, and when so- made, any person who receives a conveyance of lots which are included within it and subject to it, with full notice of the extent and nature of the restrictions, takes the land subject to those restrictions and is bound by them.
    Action to restrain the defendant from erecting a building upon lot 71 in the plaintiff’s tract in violation of the restrictions imposed thereon.
    
      
      David Hays, for plaintiff.
    
      P. Chamberlain, for defendant.
   Rumsey, J.

So far as this action is based upon the theory that the deed to the defendant forbade his erecting a building nearer to Peck street than fifteen feet, I still remain of the same opinion as when the injunction was dissolved. I thought then that the words “the said-street,” as used in the restriction, by fair construction referred to Goodman street only. At that time there was in the complaint no allegation by which it was sought to introduce any extrinsic considerations to aid in the construction of the deed. Since that motion was decided the complaint has been amended, and upon the trial evidence of the circumstances surrounding the transaction was given, from which it was sought to have the court change the construction which it had put upon the words of the deed. I do not think that testimony was sufficient to bring about the result which was sought. It was quite clear from that testimony that the deed was drawn by someone who was not accustomed to the drawing of deeds, and whose attention was not called to the necessity of using care in filling out the blanks. But there was no latent ambiguity in it. A latent ambiguity is said to exist where the description or word used and which is to be construed is equally applicable to two or more objects, and it is impossible from the words of the deed to decide to which it should be properly applied. The ambiguity insisted upon here arises from the claim that the words “ said street ” should be applied to both streets, and it is based, not upon any claim that the words themselves are ambiguous, but upon the proposition that it is evident that the draftsman made a mistake when he drew the deed, and did not carry out the intention of the parties. Such a condition of facts may sometimes afford a sufficient ground for reforming the deed, but it will never do to say that because a mistake was made and certain important parts of the deed were not properly drawn, that without reformation the deed should be construed as though it had been drawn as the grantor intended to draw it. The words said street,” mi*t, of necessity, only refer to one street and cannot refer to two. When the deed is examined to see which street is meant it is very clear, I think, that the proper grammatical construction requires the court to say that the street intended is the street upon which the lot is situated, Goodman street. I am, therefore, confirmed in the construction which 1 gave to this deed upon the motion to dissolve the injunction, that if the deed alone is to be decisive of the rights of the parties, the plaintiff has no standing in court.

But since that motion has been decided the complaint has been amended, and the case comes here, not only upon the plaintiff’s claim that the proper construction of the deed entitled it to an injunction, but also upon the further claim that the defendant is bound by the restriction which was put upon all the Tots of this tract by the agreement of the owners that no building should be erected within fifteen feet of any street line. That such an agreement may be made between the owners of property, having in view the enhancement of its value, and making the property more agreeable for resident purposes, has long been settled law. The agreement need not necessarily be made by any covenants contained in a deed nor by written contract between the parties, but it may be made by parol. Tallmadge v. East River Bank, 26 N. Y. 105; Trustees v. Lynch, 70 id. 440, 447. When such a contract has been made by parol any person who receives a conveyance of lots which are included within it and subject to it, with full notice of the extent and nature of the restrictions, takes the land subject to those restrictions and is bound by them. Whenever a question is raised as to his liability to conform to the restrictions the question is whether he had notice of them, and if he did, whether he shall be permitted to use the land inconsistently with the contract entered into by his vendor, and with notice of which he purchased. The rule is that if 1 an equity is attached to the property by the owner no one purchasing, with notice of that equity, can stand in a different >' situation from the party from whom he purchased. Tulk v. Moxhay, 11 Beav. 571; 2 Phil. 774. The case just cited is a leading case upon that point, and, so far as I can discover, it has been followed by the courts of England and of this country,- not only without objection, but with unqualified approval. Coles v. Sims, 5 DeG., M. & G. 1; 3 Pom. Eq. Juris. § 1295 and notes; Tallmadge v. East River Bank, 26 N. Y. 105 ; Hodge v. Sloan, 107 id. 244. In the above cases and authorities cited there will be found referred to a large number of other cases, laying down the same principle and citing the same cases. It is unnecessary, therefore, to indulge here in any long discussion upon the subject, because the law is so thoroughly „settled that the only question that can be presented is whether or not the facts of this case bring the parties within the well-established principle.

The only dispute here is, whether the defendant had notice of this restriction. He, himself, denies that he had notice of the special restriction until after he had obtained his deed. He does not deny that he was told that there were certain restrictions upon the lot with regard to the building of houses when he first talked of entering into the contract. His witness Richards says substantially the same thing, because lie-says that at the first talk he had with Bradshaw, when he went in the interest of the defendant, he was told that no liquor could be sold upon the premises ; that no inferior house could be built there, and that every building must be kept back fifteen feet from the street. It is true that Mr. Richards, upon his direct examination, said that he was told by Bradshaw that the building must be set back fifteen feet from Goodman street, and that nothing was said about the distance which it might be put from Peek street. But upon his cross-examination he says that Bradshaw told him that the building must, stand at least “ fifteen feet from the street,” and did not specify any particular street.

It is clear from the testimony of the defendant and his witness that he was aware that there were restrictions upon the lot which prevented his building within fifteen feet from some street, to say the least. Now, it is undisputed that the restrietion in fact was that no building should be put within fifteen feet of any street. It is hardly possible to conceive that Miller should have been misinformed with regard to these restrictions, and that he should have been told that no building should be erected at a less distance than fifteen feet from Goodman street, and, by inference, that he was at liberty to erect a building as near as he saw fit to Peck street. So much is to be said from a consideration of the evidence of the defendant and his witness. But when the plaintiff’s case is ■examined the fact of his knowledge of these restrictions is overwhelming. It is very clear to my mind that he was put in possession of that knowledge upon his talk with Mr. Bradshaw.- Although he was not clear as to the substance of the ■conversation, yet it is quite evident that he had in mind, when he talked to Miller, that there was a restriction as to building within fifteen feet of Peck street, and it is just as clear that he gave Miller to understand of its existence. Indeed, the ¡act of Miller in putting his buildings, which he erected in the-rear of lot II, at a distance of more than fifteen feet from .Peck street, at his very considerable inconvenience, is almost -conclusive that he had notice that the restrictions applied to that street. If the evidence of the two Palmers is to be added to that of Bradshaw, there can be no question that • he was given to understand what the nature and the extent of the <D restriction was, and that he knew all about it before he took his deed.

That being so, it would be a clear violation of the equitable rights of the other owners of this tract to permit him to break the rule which all of them have made for their joint advantage. The power of the court in such matters is well settled. There are no equitable considerations to relieve the defendant from the necessity of complying with these reasonable restrictions as to the erection of buildings upon that lot. He had notice of this claim of the plaintiff before he took his deed. He had notice again, as he says, in October, 1891; he acted upon the restriction when he built his house upon the rear of o his lot; he was advised of the plaintiff’s intention to insist upon the agreement almost as soon as he commenced the erection of the building in question, and if he has incurred any very considerable expense upon his lot in the face of this knowledge and notice, he has no one to blame but himself.

In view of all these facts I cannot resist the conclusion that the plaintiff is entitled, not only to relief by an injunction restraining the erection of the building, but to a mandatory injunction requiring the defendant to remove the building he has erected so that it will stand at a proper distance from Peck street.

Judgment accordingly.  