Conford, Foley and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.
This is an appeal by 17 defendants-class representatives, appointed as such by the Chancery Division for some 1,000 lot owners who are members of defendant Packanack Lake Country Club and Community Association (Association), in plaintiffs' action to secure an adjudication of the invalidity of a covenant, apparently common to their deeds and those of all the other lot owners, prohibiting alienation except to persons who are members of or approved for membership in the Association. The covenants were originally imposed "for the benefit of the remaining lands" of the grantor which exacted them, that being Packanack Lake, Inc., seemingly an instrumentality of the Association (or vice versa).
Defendants-class representatives were selected as such by the court from among all the lot owners interested, because they were members of the elected board of governors and board of directors of the Association. The covenant was adjudicated void, without contest, by final judgment in July 1966, a result mandated by our decision in Tuckerton Beach Club v. Bender, 91 N.J. Super. 167 (App. Div. 1966). In accord, Mountain Springs Ass'n v. Wilson, 81 N.J. Super. 564 (Ch. Div. 1963).
The cited cases hold that restrictive covenants of this type are void as an unreasonable restraint on alienation. There is no doubt that these decisions are sound and that based upon them and the long-standing common-law principles that underlie them the New Jersey courts would not sustain the validity or enforceability of the covenants here involved.
The appealing defendants do not challenge the substantive declaration in the Chancery Division judgment that the covenants are void. Indeed, they could not, as their answer to plaintiffs' amended complaint states that "they will consent to a judgment against them invalidating the subject restrictions burdening plaintiffs' properties," as well as that they do not desire to enforce, nor do they claim any interest in the restrictions. Moreover, defendant Association itself, of which all the lot owners in the represented class are members, has by its answer to the amended complaint renounced any interest in or desire to enforce the restrictions.
The only purported grounds for this appeal are procedural objections to the designation by the trial court of defendants as class representatives. Defendants were unable at oral argument to respond to inquiries from the court as to how they as individuals were, in view of the foregoing, aggrieved by the judgment. Nor were they prepared to say how any of the class of lot owners represented by them were prejudiced in any substantial sense thereby in view of (a) the unquestionable and conceded invalidity of the restrictive covenants as a matter of law, and (b) the fact that their major contention on this appeal is that the judgment in this case will not be res judicata against the non-party lot owners because the class here is a so-called spurious one, coming within R.R. 4:36-1 (c), as to which the judgment cannot be res judicata against any person not brought in as a party or intervening.
Defendants argue that their "constitutional rights" were violated in having been forced against their will to act as class representatives of the other lot owners. The contention is frivolous. They were not compelled to do anything and were free to take such position in the litigation as they
voluntarily chose, and they chose not to contest plaintiffs' substantive claim for relief.
Defendants' real position on this appeal can be understood, if at all, only as purportedly protective of the interests of such of the class of lot owners as may at some time wish to enforce the restrictive covenant against plaintiffs, and we shall consider it as such.
The major ground of appeal is stated above as "(b)." It is true as a matter of law that if the class here is spurious rather than true, as argued by defendants, the judgment does not bind any of the class who do not join in the action. 3 Moore's Federal Practice (2 d ed. 1966), R. 23, § 23.11 ; Terrell v. Humble Oil & Refining Co., 80 N.J. Super. 51, 57 (App. Div. 1963).*fn1 That question, in turn, depends upon whether the rights of the other lot owners to enforce the covenant in plaintiffs' deeds are "joint, or common" within R.R. 4:36-1(a) (true class), or "several" within (c) of that section (spurious class). If the former, and if all other requisites of the rule are met, the judgment binds all members of the class whether or not they join the class by affirmative action; otherwise not. 3 Moore, op. cit.; Terrell v. Humble Oil & Refining Co., supra. Defendants argue that the rights of the lot owners are several, not joint; plaintiffs contend to the contrary. No case is cited by either side which we find to be precisely in point in relation to a ...