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Hawkins v. Reyburn

Decided: June 11, 1952.

CHARLES W. HAWKINS, ET AL., PLAINTIFFS,
v.
ROBERT L. REYBURN, ET AL., DEFENDANTS



Schettino, J.s.c.

Schettino

Plaintiffs seek judgment quieting title to their property on Fourth Avenue, Asbury Park, New Jersey. This litigation arises out of certain provisions contained in a deed in the chain of plaintiffs' title from John and Jane Langford to Jacob R. Borden. Defendants are heirs of the Langfords.

In 1870 and 1871, James A. Bradley acquired a large tract of land which he developed as Asbury Park. Bradley conveyed the premises in question to Langford by deed dated September 4, 1875. He therein included two provisions, which appeared as well in most of the early deeds out of Bradley.

One provision reads:

"The said premises is hereby conveyed subject to the following conditions, to wit: That no house cottage or other building shall ever be erected thereon nearer the line of said Fourth Avenue than twenty five feet. And also, that the maximum grade of said Lot shall not exceed four feet above the level of the sidewalk in front of same."

The other provision reads:

"Subject, nevertheless, to the following covenants and conditions: 'The said party of the second part, for himself, his heirs, executors, administrators, and assigns, covenants that he and they shall never use said premises, or cause the same to be used for the sale of intoxicating liquors, or for any manufacturing purpose whatever, and that no hog pens shall ever be erected thereon, and it is hereby

mutually made a part of this sale, that any violation of the above conditions, shall cause the title to revert to the said party of the first part.'"

The deed from the Langfords to Borden, dated June 24, 1879, contained the following:

"The said premises is hereby conveyed subject to the following conditions, to wit: That no house cottage or other building shall ever be erected thereon nearer the line of the said Fourth Avenue than twenty five feet (25 ft.). And also that the maximum grade of said lot shall not exceed four feet above the level of the sidewalk in front of same. And subject nevertheless to the following covenants and conditions: 'The said party of the second part for himself, his heirs, executors administrators and assigns, covenants that he and they shall never use said premises or cause the same to be used for the sale of intoxicating liquors, or for any manufacturing purpose whatever, and that no hog-pens shall ever be erected thereon, and it is hereby mutually made a part of this sale that any violation of the above conditions shall cause the title to revert to the said party of the first part.'"

These provisions are verbatim reproductions of the provisions in the deed from Bradley to Langford, with a minor difference as to format only, and are followed immediately by a recital that the premises are the same conveyed by Bradley to Langford by the deed already mentioned.

The second quoted provision of the Bradley deed created a condition subsequent, for the breach of which title might be defeated. As stated above, other deeds made by Bradley contained like provisions. It appears that at later dates Bradley executed numerous agreements with owners of property thus affected, whereby the condition subsequent was terminated as to their properties; and covenants to the same effect, but of a purely restrictive nature, were substituted. By his will, Bradley empowered his ...


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