#### James S. Simmons, Appellant, *v.*Francis I. Crisfield, Respondent.

Fourth Department,

January 8, 1908.

Beal property — executor’s deed with mutual restrictive covenants — remaining parcel bound by covenant.

An executor ,not appointed trustee of lands devised,, but clothed with a naked-power of sale, may, on selling.a portion of the lands, subject them, together with the portion unsold, to a covenant restricting the position of the building line on both.

When the deed containing -such restrictive covenant is recorded, a purchaser of. the remaining portion, having also actual notice of the restriction, will be held in equity to take subject to the covenant, although it was not embodied in his deed.

Appeal by the plaintiff, James S. Simmons, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Monroe on the 30th- day of September, 1907, upon the decision of the court, rendered after a trial at the Monroe Special Term, sustaining the defendant’s demurrer to the complaint.

*William Ogden Campbell,*for the appellant.

*Horace McGuire,*for the respondent.

Williams, J.:

The interlocutory judgment should be reversed, with costs, and the demurrer overruled, with costs, with leave to plead over on payment of costs of the demurrer and of this appeal.

The action was brought to restrain the defendant from erecting any building on a city lot nearer than twenty feet to the street In February, 1897, Julia IT. ITurd died seized of two adjoining lots, Hos. 21 and *22,*on the east side of Colvin street, Rochester, H. Y., each forty feet front and one hundred and fifty feet deep. She left a will, in which, among other things, she in effect gave these two lots to certain devisees named, appointed executors, and authorized and empowered such executors and the survivors of them to sell and convey any real estate which she owned at the time of her decease. One of the executors only qualified and served. In'April, *2021907, the said executor sold and conveyed to the plaintiff lot 22, and inserted the following covenants in the deed, viz.: *“*The party of the second part, for himself, his heirs and assigns, covenants and agrees with the party of the first part, his successors and assigns, that the front wall of any building erected on the premises hereby conveyed shall stand back at least twenty (20) feet from the east line of Colvin Street; *and*the party of the first part, as such, executor as aforesaid, covenants and agrees with the party of the second part, his heirs and assigns, that on the lot adjoining the above-described premises to'the south, thereof, to wit, lot twenty-one (21), * * * the front wall of any building erected thereon shall stand back at least twenty (20) feet from the east line of Colvin Street.”

This deed was recorded two days after it was given. In June, 1907, the said executor sold and conveyed to the defendant lot 21, making no reference to the covenants in the former deed of lot 22.

When the defendant took his deed he knew of the former conveyance to the plaintiff and of the covenants therein contained.

The defendant, immediately after taking his conveyance, commenced the erection of a dwelling house and store on his lot, the front wall to be upon the easterly margin of the .street, and not twenty feet therefrom, in violation of the covenants containéd in plaintiff’s conveyance of his lot', and refused, on request of plaintiff, to comply with such covenants. Thereupon the plaintiff commenced this action.

There, is no equity here in favor of defendant. ■ He took his deed, not only with the notice that the recording of the former deed gave him, but as alleged in the. complaint, and admitted by the demurrer, with actual knowledge of the covenants in plaintiff’s deed, and he seeks now to deprive the plaintiff of the benefit of the covenants in liis deed, which were valuable to liim, and for which he may be assumed to have paid a consideration. The. plaintiff’s property would certainly be more valuable .if buildings on the defendant’s propérty were erected twenty feet back from the street than if they were located on the margin of the street. The defendant bought and took a deed of his lot, with his eyes wide open, and with the.chances of succeeding upon the bare, naked proposition that the executor had no power to make the covenant in the plaintiff’s deed ; that it was void and could have no effect upon defend*203ant’s interest in his lot, or his right to erect buildings wherever he liked thereon. The executor was not a trustee under the will of the deceased, and was not vested with the title to these two lots, lie had a bare, naked power of sale. The title was in the devisees under the will. The executor' had power to sell, and did sell and convey both lots. It was sought to bind the purchasers of both lotu and their successors and assigns by restrictive covenants as to the? erection of buildings for the benefit of both purchasers. The covenants were mutual and reciprocal, and were, therefore, enforcible if entered into by parties competent to make the same. *(Equitable Life Assurance Society*v. Brennan, 148 N. Y. 661, and the cases therein referred to.) The right to the enjoyment of such covenants passes as appurtenant to the premises, and will be enforced in courts of equity. *(Wetmore*v. *Bruce,*118 N. Y. 319, 322, and cases therein referred to.)

Ho objection could be made by the devisees under the will, after the giving of both deeds, to the deeds or the covenants therein contained. They had thereafter no interest to object. The two deeds together transferred the whole title to both lots, and the deeds were valid even if the covenants were ineffectual.

The whole controversy is between the two grantees under the deeds. The defendant by accepting his deed, with knowledge actual, as well as by the record, of the covenants in plaintiff’s deed, took only such title as remained in the executor after giving plaintiff’s deed. He should be said in equity at least to have voluntarily become a party to the covenants in plaintiff’s deed, and to have taken his title subject thereto.

We see no reason why he should be permitted, under the circumstances, to question the validity and binding effect upon him of ■ these covenants.

We think, therefore, that the plaintiff is entitled to the relief asked for in his complaint.

All concurred.

Interlocutory judgment reversed, with costs, with leave to plead over upon payment of the costs of the demurrer and of this appeal.