Plaintiffs herein seek to enforce a restrictive covenant contained in a deed from one Mary E. Dilks to Fred Cristelli et ux. , the latter being a predecessor in defendants' chain of title, dated December 12, 1950, on two grounds: (1) Mary E. Dilks, who is the common grantor of the plaintiffs and defendants, being the owner of a large tract of land, imposed said restrictions in furtherance of a "neighborhood scheme" upon said tract of land, and (2) in the event that they fail to prove the existence of a neighborhood scheme, they seek the enforcement of the restrictive covenant as subsequent grantees of a portion of the tract remaining in the said Mary E. Dilks at the time of the conveyance to Cristelli. Said restrictive covenant reads as follows:
"No building shall be constructed upon the premises except a dwelling house and such other out buildings as hereinafter provided. The actual cost of any dwelling which may be constructed upon the premises shall be of the value of at least $7,000.00. Any out buildings which are to be constructed must be constructed at least 50 feet behind the dwelling house line."
The question of a neighborhood scheme has heretofore been disposed of, this court having held that the plaintiffs failed in various vital respects to establish a neighborhood scheme.
Defendants, by way of defense to the second asserted ground for relief, assert that since the conveyance by Mary E. Dilks, the common grantor, to the predecessor in title of plaintiff Frank Mango, preceded the conveyance by her to Cristelli, he has no right to enforce said covenant. They as well assert that the other plaintiffs have no such right, although the deeds to them from Mary E. Dilks post-date the conveyance to Cristelli, since they had entered into a binding agreement of sale with Mary E. Dilks prior to the conveyance to Cristelli.
I find as a fact that the common grantor, Mary E. Dilks, did not bind herself at the date of the conveyance to Frank Mango or at the time of the agreements with the rest of the plaintiffs, to impose any restrictions upon the
balance of the land to which she then had title. Leaver v. Gorman , 73 N.J. Eq. 129 (Ch. 1907).
Generally, a restrictive covenant imposed upon land by a grantor in a conveyance of a portion of a tract of land, if such restrictions are for the benefit of the balance of the land retained by the grantor, may be enforced by him or a subsequent grantee of the whole or a part of said retained land. This result is based upon the theory that the restrictive covenant so imposed was for the benefit of said grantor and his remaining lands, and the subsequent grantee may as well enforce said restrictive covenant upon the principle that the rights created by such stipulation are transferable as part of the land to which they are attached. However, unless the grantor binds himself to impose similar restrictions upon the lands, the title to which then remains in him, the prior grantee cannot enforce a restrictive covenant contained in a conveyance to a subsequent grantee. This result follows from the fact that the prior grantee, having no right of action against the grantor, cannot pursue any other subsequent grantee. Clarke v. Kurtz , 123 N.J. Eq. 174 (E. & A. 1937); Leaver v. Gorman , 73 N.J. Eq. 129 (Ch. 1907); Bowen v. Smith , 76 N.J. Eq. 456 (Ch. 1909); Bright v. Forest Hill Park Development Co. , 133 N.J. Eq. 170 (Ch. 1943).
Absent a neighborhood scheme or an agreement on the part of Mary E. Dilks to so bind herself by the insertion of a similar restriction in subsequent conveyances, the plaintiffs, Frank Mango et ux. , whose deed ante-dated that to defendants, cannot enforce the restrictive covenant contained in the deed to defendants.
There remains for consideration, therefore, the question of whether the other plaintiffs, having entered into binding agreements to purchase a portion of the Dilks tract prior to the date of the conveyance to defendants' predecessors in title, are as well barred from the relief here sought.
When an enforceable binding agreement of sale of real estate is entered into the vendee becomes the equitable owner of the land and the vendor holds a mere naked legal estate as trustee of the ...