Thornton v. Schobe

Mr. Justice Denison delivered the opinion of the court. A demurrer to the complaint on the ground of insufficient facts was sustained; plaintiffs stood by their complaint ; the cause was dismissed and they bring error. *27 The point in question is whether the contract on which the complaint is based is void under the statute of frauds. It was stated and promised by defendant that if plaintiffs would buy certain portions of his land he would not build, upon certain of his remaining land near by, “any apartment house, garage or buildings used or to be used for business or store purposes, and that said territory was restricted territory, in which no store, garage, rooming' house or apartment house could be built or constructed.” The bill was to enjoin him from so doing. It alleged, of course, that the said promise was in consideration of their respective purchases, that they purchased and paid in reliance on it and that defendant was about to build a store in breach of it. Plaintiffs in error rely on part performance. We think, however, under Knoff v. Grace, 68 Colo. 527, 530, 190 Pac. 526, 10 A. L. R. 1492; Sprague v. Kimball, 213 Mass. 380, 384, 100 N. E. 628, 45 L. R. A. (N. S.) 962, Ann. Cas. 1914A, 431; Thomas Realty Co. v. Guthrie, 71 Colo. 98, 204 Pac. 330, their position cannot be maintained. Lewis v. Gollner, 129 N. Y. 227, 26 Am. St. Rep. 516, is a strong case for them, but $6,000 was there added to the purchase price of the lots to obtain the agreement not to build the offensive buildings near by. That distinguishes that case from this and from Knoff v. Grace, supra, and shows that in principle it is not in conflict with the latter. The $6,000 was full performance inconsistent with G-ollner’s theory of the contract. Plaintiffs in error also claim deceit by false representation, but we find in the complaint no statement that any representation of a present fact or past event was false. But they make the further point that an agreement restricting the use of land is not within the statute of frauds because it does not relate to an interest in land but merely to its use. We think he is right. Hall v. Solomon, 61 Conn. 476, 29 Am. St. Rep. 218, 23 Atl. 876; *28 Leinau v. Smart, 11 Humphreys (Tenn.) 308; Bostwick v. Leach, 3 Day (Conn.) 476. Just as profits on the purchase and sale of land are not an “estate or interest” in the land (Von Trotha v. Bamberger, 15 Colo. 1, 24 Pac. 883), so the method of use of land is not such estate or interest. See also 8 Am. & Eng. Enc. Law (1st Ed.), 701, 703; Storms v. Snyder, 10 Johns. (N. Y.) 109. In Rice v. Roberts, 24 Wis. 461, 1 Am. Rep. 195, the court holds that a contract not to build nearer than three feet of the street line was within the statute because giving an interest in or power over land, and Sprague v. Kimball, supra, holds building restrictions to be interests in or concerning lands. There are other cases which more or less directly support either side of this controversy, but we think that reason is with the plaintiffs in error, that an agreement not to build a certain sort of building on certain land is not a transfer of an estate or interest therein nor a trust or power over it. “Power” is used in the statute, as suggested by its connection with “trust,” in the technical sense of power to convey or otherwise dispose of the lands as in wills-, declarations of trust, trust deeds and letters of attorney, and does not embrace restrictions of use. It is claimed that the questions in the case have become academic because the buildings sought to be enjoined have been finished. We do not think this claim is sound. If one in the face of a pending suit for an injunction does the thing sought to be enjoined he cannot thus outwit equity and the court, but must restore the status quo. Smith v. Graham, 147 N. Y. Supp. 773; Turney v. Shriver, 269 Ill. 164, 109 N. E. 708; New Haven Clock Co. v. Kochersperger, 175 Ill. 383, 51 N. E. 629. Judgment reversed and cause remanded. Mr. Chief Justice Allen and Mr. Justice Whitford concur.