#### Emma C. Schermerhorn and Others, on Behalf of Themselves and All Others in the Same Situation with Themselves who May Choose to Come in and Contribute to the Expense of this Action, Respondents, *v.*Charles M. Bedell, Appellant.

Fourth Department,

July 7, 1914.

Real property — restrictive covenants—building line — injunction — no mutuality of covenants — rights of grantee whose deed contains no restrictions — equity—violation of restrictions by plaintiff.

Where the owner of a tract of land induces purchasers to buy lots by representations that the tract is restricted, and that all lots sold will be subject to the same restrictions as to building line and character of building as are contained in the pureh'asers’ deeds, equity will protect such purchasers against the grantor, and also against subsequent purchasershaving knowledge of the facts.

*446But where the owner of the tract, after selling a large part of the lots subject to such restrictions, by deeds which, however, did not contain any covenant on his part that the remainder of the tract should be subject to the same restrictions, although oral representations to that effect were made, sold a lot to defendant by a deed which contained no restrictive covenants, and it appears that defendant had no actual knowledge of any restrictions on the tract until after he had made his purchase and begun building, and that there was not in his chain of title anything which pointed to any restrictions in respect to buildings to be erected on the lot, he will not be enjoined at the suit of other lot owners in the tract from building an apartment house within one foot of the sidewalk line. This, although there was a twenty-two-foot building line restriction in the deeds of the plaintiff lot owners.

It was not defendant’s duty to search all the titles growing out of the division of the tract, nor will he be presumed to have knowledge of the restrictive covenants therein.

¡Nor should he be held to have had constructive notice that the whole tract, including his lot, was restricted by reason of these covenants and of the general location of the buildings already erected on the tract.

Defendant had a right to rely on his own chain of title, and having paid a valuable consideration, cannot be deprived of his rights to build on ¡his lot, unless he had notice of all the facts essential to bind the original grantors.

Furthermore, where it appears that the plaintiff lot owners themselves have disregarded the building lineas fixed in their deeds, and have built substantial porches within the line, in one case to witnin eleven feet of the sidewalk, they are estopped from claiming that the original twenty-two-foot building line still applies to the other lots of the tract.

Appeal by the defendant, Charles M. Bedell, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the Tth day of July, 1913, upon the decision of the court after a trial at the Onondaga Special Term.

The judgment required the defendant to remove a building which he had constructed on lot 1 of block 4 of the Ballard tract (so called) from that portion of the lot which runs parallel with McKinley avenue, in the city of Syracuse, and extends eleven feet southerly from the south line of said street, within one year from the service upon him of a certified copy of the judgment.

*William Rubin,*for the appellant.

*Park & Bonsted [George F. Park*of counsel], for the respondents.

*447Merrell, J.:

The plaintiffs seek a mandatory injunction against the defendant, requiring him to remove that portion of the building which he has erected on lot 1 of block 4 of the Ballard tract (so called), in the city of Syracuse, N. Y., from that portion of the lot which is within twenty-two feet of McKinley avenue. The plaintiffs are the owners in fee simple of four lots, situate in the Ballard tract (so called), in the city of Syracuse, and are lot 1 of block 1, and lots 6, 7 and 8 in block 4 of the Ballard tract. The defendant is the owner of lot 1 of block 4 of the Ballard tract, and has recently erected an apartment house upon said lot, the walls of which extend to a point one foot from the sidewalk line on McKinley avenue, and face South Salina street. The plaintiffs have each constructed dwellings upon their respective lots. The tract upon which these lots are located was originally owned by one William Ballard, who died in the year 1881, leaving a last will and testament in which he devised the tract of land to his widow, Harriet Ballard, for life, and after her death to his children, William J. Ballard, Stephen Ballard, Alfred Ballard and Jennie Ballard. The said Alfred Ballard is the defendant’s grantor. After the death of William Ballard his widow and devisees divided the tract into four blocks, known as blocks 1, 2, 3 and 4, and are intersected by McKinley avenue, State street and South Salina street. The tract was evidently laid out for residential purposes and a map was filed in the Onondaga county clerk’s office, setting forth the division of the tract into lots and giving their dimensions, on or about March 13, 1896. After such division into lots the same were sold to various grantees, and, with the exception of lot 7 in block 1, lot 3 in block 1, and lot 1 in block 4, all of the deeds contained a restrictive covenant in substantially the following form: *“*The party of the second part agrees to place all buildings on said lot 22 feet from street line; he also agrees to erect no buildings on this lot to be used for store, saloon, hotel or factory purposes.”

Hone of the deeds contained any covenant on the part of the grantor or grantors that the remainder of the tract should be governed by and be subject to the same restrictions in respect to buildings as were contained in the several deeds to the indi*448vidual grantees. All of these restrictive covenants are persona! in nature, and there is nothing upon the récord to show that any building restrictions of any kind or nature were ever imposed upon lot 1 of block 4 now owned by the defendant.

The plaintiffs claim that certain representations were made at the time of several of the sales to the now owners of lots upon the Ballard tract, to the end that the whole tract was subject to the same building restrictions set forth in their deeds, and the learned trial court has found that such representations were made to certain of the grantees, and from the evidence and the situation of the property and the nature of the deeds given to nearly all of the lot owners, it is apparent that it was the original plan of the Ballard heirs to restrict the erection of buildings upon the whole tract within twenty-two feet of the street line, and that such plan was uniform in respect to the frontage on all of the streets intersecting said tract.

The various purchasers, including the plaintiffs, have erected dwellings upon all of the Ballard lots, with the exception of lot 1 of block 1, lot *1T*of block 2, lots 2 and 3 of block 4, and lot 15 of block 3. The main walls of all of the dwellings facing upon McKinley avenue are substantially twenty-two feet from the margin of the avenue, with the exception of the dwellings erected upon the lots cornering upon State street and McKinley avenue. The main portion of the building on the southeast comer is thirteen and four-tenths feet and the bay window is eleven and four-tenths feet from the street line of McKinley avenue; the main portion of the building on the northeast corner is eighteen and seven-tenths feet and the bay .window is seventeen and two-tenths feet from the street line of McKinley avenue; the main portion of the building on the southwest corner is seventeen and nine-tenths feet and the bay window is fifteen and four-tenths feet from the street line of McKinley avenue; and the main portion of the building on the northwest comer, owned by the plaintiff Tennant, is eleven feet and the bay is nine feet distant from the street line of McKinley avenue. The trial court has held that in front of each house on McKinley avenue was a porch which was constructed in connection with the house and averages between thirteen and fifteen feet from the street line. While steps or *449ornamental portions might be considered mere incidental encroachments, a porch in the nature of those erected in front of each house on McKinley avenue is a substantial part of the house and is a building within the terms of the restriction. So that it is evident that each of the owners of lots on the Ballard tract facing McKinley avenue, including the plaintiffs, have themselves violated the terms of the restrictive covenants contained in their respective deeds, and that the plaintiff Tennant has built substantially eleven feet over the restricted line. Whether these encroachments were the result of a general understanding or deliberate violations of the covenants contained in the respective deeds of the lot owners does not clearly appear.

The plaintiffs claim that, before purchasing his lot, it was the duty of defendant to search all the titles growing out of the division of the Ballard tract, and that he should be presumed to have knowledge of the restrictive covenants contained in all the deeds from the Ballard heirs, and that by reason of these covenants and the general location of the dwellings on McKinley avenue, he should be presumed to have had notice that the entire tract, including defendant’s lot, was subject to the same building restrictions contained in the plaintiffs’ deeds and the deeds of other lot owners, and that the court should hold that the defendant, at the time he purchased the premises, had constructive notice of those facts.

The trial court has held that the defendant had no actual notice of any restrictions until after he had begun the construction of his building; that there was no restriction in the immediate chain of title to defendant’s lot, or in any of the conveyances or maps which passed title to defendant’s lot, and these findings seem to be in conformity with the evidence in the case. Alfred H. Ballard, who was the defendant’s grantor, testified that the building restrictions did not cover the corner lots, and the most that can be claimed is that to some of the grantees representations were made by the grantors and their agents that the entire tract would be sold subject to the same building restrictions contained in the plaintiffs’ deeds. If the plaintiffs were induced to purchase their respective lots by such representations, equity would protect them against the grantors and also against *450subsequent purchasers having knowledge that plaintiffs were so induced to purchase and that the whole tract was subject to the same building restrictions contained in plaintiffs’ deeds. *(Tallmadge*v. *East River Bank,*26 N. Y. 105.)

As against the grantor in such case, it would not matter whether the covenants ran with the land or not. It is apparent, therefore, that the defendant, having no actual notice of the restrictions sought to be enforced, the plaintiffs cannot succeed, unless from the facts and circumstances of the case and the situation of the property the defendant would be deemed to have had constructive notice that lot 1 in block 4 was subject to the same building restrictions contained in plaintiffs’ deeds, and that plaintiffs were induced to purchase their respective lots by representations made by their grantors to the effect that the whole tract was subject to the same restrictions and would be so conveyed.

As before stated, there is nothing in the chain of title of defendant’s lot, nor in the chain of title of lot 3, block 1, which is the corner lot opposite defendant on the corner of South Salina street and McKinley avenue, which in any way points to any restrictions in respect to buildings to be erected on either of the two lots, nor is there any covenant contained in any of the deeds on the part of the grantors that either the remainder of the tract or the defendant’s lot would be subject to any restrictions whatever. The covenants contained in all of the deeds are personal in nature and are not mutual.

I do not think that even the most persistent searching of the titles would have revealed any covenant restricting the construction of buildings upon defendant’s lot, either directly or by implication. Nor do I think that the location of the houses on McKinley avenue and upon the other streets upon which the other lots are located was a circumstance from which notice could be implied that there was any restriction which affected lot 1 of block 4.

Nearly all of the owners had built over the restricted line, and even if the defendant had discovered the restrictions contained in the plaintiffs’ deeds he naturally would not have thought it necessary to inquire of those who had obviously violated the restrictive covenants. The plaintiff Tennant had *451himself built within eleven feet of the margin of McKinley avenue, and it could hardly be expected that persons violating the plain language of their own conveyances would ever claim that the defendant, building upon a lot having no restrictions in the chain of title, had no right to build within the twenty-two-foot line originally established in the other deeds. The defendant clearly had a right under the circumstances to rely upon his own chain of title, and having paid a substantial sum for his lot, could not be deprived of his rights to build thereon unless he had notice of all of the facts essential to bind the original grantors.

In a court of- equity the plaintiffs would be estopped by their own acts and encroachments from claiming that the original twenty-two-foot restriction now applies to the defendant’s lot. Even if notice of the restriction could be implied from the facts the court would be reluctant to grant the relief asked at the insistence of plaintiffs, who have themselves violated and ignored the covenants which they now seek to enforce against the defendant. Nor would it be equity to take as the present standard of building upon McKinley avenue the structure of the plaintiff Tennant, who has built eleven feet over the original twenty-two-foot line.

As before intimated, I do not think that the facts and circumstances of the case would warrant a holding that the defendant had constructive notice of any restrictions upon his lot. *(Bradley*v. *Walker,*138 N. Y. 292; *Knapp*v. *Hall,*70 Hun, 17; affd., 147 N. Y. 712.)

In the opinion of the trial judge *Holt*v. *Fleischman*(75 App. Div. 593) is said to be “on all fours like the present case.” But in that case the grantor owned 155 feet on Twenty-ninth street in New York city, and sold one lot to the plaintiff’s grantor by a deed which contained a covenant by the grantee that the front of the building to be erected there should be placed on a line with the front of the buildings to the easterly thereof, and *also a covenant by the grantor that all buildings to*be constructed on the balance of the lot should also be so built.

In *Tallmadge*v. *East River Bank,*also relied upon, the map of the premises from which the sales were made reserved a *452strip of eight feet upon each side of the street upon which no buildings should be built, and in *Bimson*v. *Bultman*(3 App. Div. 198), also relied on by the trial court, a map was issued and circulated, upon the reverse side of which there appeared an advertisement, at the end of which was the following statement: “The entire tract restricted and controlled by one

management. All buildings must be of brick or stone,” and in addition signs were placed upon the premises to the same effect.

In the above cases the respective defendants, having been put upon inquiry, could have ascertained the above facts. But in the case at bar, even if the defendant had made the most careful inquiry, no such documentary evidence could have been discovered.

Notwithstanding the great injury which these plaintiffs and other homemakers upon the Ballard tract have suffered by the defendant’s building, of which damage the photographs bear most convincing testimony, I am afraid they are without legal remedy.

The judgment appealed from should be reversed and plaintiffs’ complaint dismissed, with costs to the appellant.

All concurred.

Judgment reversed and complaint dismissed, with costs, including costs of this appeal.