On appeal from the former Court of Chancery.
For affirmance: Chief Justice Vanderbilt and Justices Case, Heher, Wachenfeld, Burling and Ackerson. For reversal: None. The opinion of the court was delivered by Case, J.
The appeal is from a decree in Chancery commanding the removal of portions of a garage building and restraining defendants henceforth from violating enumerated building restrictions. John Eyre Shaw, the common predecessor in title of the lots involved herein and of other land in the neighborhood, conveyed out by deeds related to a map and containing the following covenants: --
"Under and subject nevertheless to the following restrictions, covenants and conditions which are hereby made a part of the consideration for this conveyance. * * * That not more than one building
shall be erected upon a single lot as mapped on said plan of lots nor shall any one who shall own more than one lot which may be contiguous, erect more than one building on any single lot as planned. That no building shall be erected nearer the front property line of any avenue or street than fifteen feet, nor nearer to either of the side or rear lines of said lots than three feet, provided that where a party may own two or more contiguous lots then a building may be erected on any part of said lots without regard to the intervening side lines, provided the same is not within the said distance of three feet from the outside lines of said contiguous lots * * *. And it is expressly understood and agreed that the said several covenants above specified shall attach to and run with the land and it shall be lawful not only for the said grantors, their heirs or assigns but also for the owner or owners of any lot or lots adjoining in the neighborhood of the premises hereby granted, deriving title from or through the said grantor, his heirs or assigns, to institute and prosecute at his, her or their own cost any proceedings at law or in equity against any person or persons violating or threatening to violate the same; and that the object of the covenants is to secure the health, beauty, ornamentation and value of the premises. And it is expressly understood and agreed that the foregoing covenants and conditions are accepted and agreed to by the grantor and grantee and shall bind their heirs, executors, administrators or assigns and that any conveyance hereafter made by the grantor or grantors, their heirs, executors or assigns, shall have inserted in the deed or deeds the foregoing covenants and conditions."
By mesne conveyances stemming from the John Eyre Shaw deeds lot number 19 came to Blanche K. Dougherty and lot number 20 to defendant Isadore Rosenberg, whose wife is defendant Anna Rosenberg. Each lot contained a dwelling, with a small detached garage at the rear. Rosenberg's immediate grantor was the Guarantee Trust Company, whose deed to him was, by its terms, "subject, however, to any and all restrictions, if any, of record".
Miss Dougherty died August 27, 1939, seized of lot number 19, leaving a will and a codicil thereto which were admitted to probate by the Surrogate of Atlantic County on November 27, 1939. The original will left the residuary estate, in which was lot number 19, to Rev. Augustine H. Rufe, and named him as sole executor. The codicil provided that in the event of the death of Mr. Rufe the executorship should go to Rev. Henry A. Evans and also that if Mr. Rufe should predecease the testatrix "the said residue and remainder of my estate I do hereby
give, devise and bequeath to Rev. Henry A. Evans to be disposed of in the manner and form which I have instructed Reverend Augustine H. Rufe". Augustine H. Rufe predeceased the testatrix. Harry A. Evans had long been in the occupancy of lot number 19 and upon Miss Dougherty's death took over as owner, resided there, paid off a $6,000.00 mortgage from his own funds, made personal expenditures for improvements and otherwise assumed the burdens and privileges of ownership.
On January 20, 1947, Rosenberg demolished the south wall of his garage, which paralleled the complainant's property side line at a distance of more than two feet, and commenced construction of a new wall three or four inches from the line and extending eighteen feet further towards the street. Complainant immediately gave notice to Rosenberg that the proposed building violated the restrictive deed covenants and that he would take the necessary legal steps toward enforcement. On March 1, 1947, he filed the bill herein. The work was temporarily discontinued, but on May 19, 1947, was resumed and carried to completion. The court found that the facts, including the restrictive covenants, established a neighborhood scheme which the reconstruction violated, and thereupon granted the relief noted above.
The bill alleged ownership in fee in the complainant, grounding title in the Dougherty will. Rosenberg answered admitting ownership as claimed, but at the beginning of the trial his counsel asked and was granted leave to amend the answer by denying ownership so that a construction of the will on the subject of title might be had. At the close of the trial defendants' counsel, consistently with the amendment to Rosenberg's answer and the course of the trial, contended that "If the instructions referred to in the will (of Blanche K. Dougherty) are valid, Rev. Evans holds the estate in trust; if they are invalid, or if the trust fails for any reason, he holds the estate in trust for the heirs-at-law of the deceased testatrix" and argued thereon that complainant had no right of action. The Vice Chancellor, in coming to his decision, considered that this argument presented three possibilities as to the status of [1 NJ Page 596] the title with consequent results as follows: first, as alleged in the bill, the complainant is the owner in fee; or, second, the will of Blanche K. Dougherty created a valid trust of which complainant is the trustee, and in this status the complainant is vested with the legal title; or, third, the will of Blanche K. Dougherty attempted to create a trust which failed in whole or in part, and if this be so the devise created a resulting trust of which complainant is the trustee and therefore vested with legal title. Then, expressing the opinion that the allegations of the bill were sufficient without change, but nevertheless to the end that the pleading should precisely allege title in the alternative as thus fully tried, argued and considered, the court directed that the bill be amended accordingly; and the amendment was made simultaneously with the entry of the decree. Defendants now assert that they were injured in that, as they say, they had no opportunity to answer or to be heard on the amended bill. Technically, they say they were not afforded procedural due process. The contention lacks reality. The controversy was on whether or not the will put complainant in sufficient authority to maintain the suit. What the court did at the end was to amend the bill to conform nicely to the matters which were tried, argued and decided as a result of the belated amendment to the answer. The practice of permitting amendments to make the pleadings conform to the issues as tried is of long standing. Cf. Van Riper v. Claxton, 9 N.J. Eq. 302, 306 (Ch. 1853); Hampton v. Nicholson, 23 N.J. Eq. 423, 428 (Ch. 1873). Van Houten v. Van ...