Covenant v. Nuisance

Opinion. The provision in the mortgage at the end of the description, that “ no part of the premises conveyed is to be used for any trade, business or purpose that will prove a nuisance to the owners of the adjoining premises ” is inoperative as a covenant running with the land, and (2) does not restrain the use of the property for any lawful object. ' These are the two propositions involved, and before discussing them it may be conceded that a covenant against nuisances (properly so called) constitutes an incumbrance sufficient to warrant' a purchaser in rejecting a title (see cases collated in Van Derminden v. Essig, 2 City Ct. 38). First The provision is inoperative as a covenant running with the land, because it is neither a condition nor a covenant contained in a grant of the land. It is not even a covenant by the mortgagee in respect to the property. The use remained in the mortgagor, and the provision is, at most, an implied promise on the part of the mortgagor not to use the property during his possession for any purpose that might prove a nuisance to the adjoining owners. It was a promise that would have passed to the personal representatives of the mortgagee and would have been enforceable by them. It was solely for the benefit' of the mortgagee and his personal representatives, and would have been discharged by payment of the mortgage debt. No adjoining owner could have enforced it prior to or after payment of the mortgage. The mortgagee never owned the fee. He had no attribute of ownership in the land. A mortgage is a mere chose in action secured by a lien' upon the land (Packer v. Rochester & S. R. R. Co., 17 N. Y. 283; Power v. Lester, 23 Id. 527; Trium, 54 Id. 604). The foreclosure of the mortgage gave the mortgagee no ownership in the land. It merely merged the mortgage debt in the judgment. The purchaser at the master’s sale acquired the estate of the- mortgagor and the interest of the mortgagee. When the two interests [400] became united in the purchaser, the promise of the mortgagor terminated, and could be revived only by its continuance or recognition in subsequent grants by the purchaser. The purchaser did not revive or continue the promise, but extinguished it by the execution of grants conveying the fee of the property unrestricted. The master in chancery could create no charge on the land, and the reiteration of the' words added to the description created no limitation on the estate and imposed no valid restriction. The master was a mere conduit through whom the title of the mortgagor and interest of the mortgagee passed. He had no interest or estate of his own, and acted merely as the channel through which the interests of all parties passed to the purchaser at the judicial sale. The purchaser at this sale conveyed by full covenant warranty deeds, and his vendees acquired good title without any restriction whatever as to the use of the property. Covenants are not implied in conveyances (2 R. S. 6th ed. 119, § 161). Conditions leading to forfeiture or restricting the free use of property for lawful objects are strictly construed because they tend to impair and destroy estates. They will not be sustained by inference, nor unless the plain language of the covenant requires that punitive result (Woodworth v. Paine, 74 N. Y. 199. See also 64 N. Y. 33; 2 How. Pr. N. S. 391). I am clearly of opinion that the provision aforesaid is inoperative in respect to the title .offered by Mr. Muldoon. Second. The provision does not restrict the use of the property. It does not inhibit any particular trade, calling or purpose. It simply requires that the property shall not be used for any purpose that may “ prove a nuisance to the owners of the adjoining premises.” Why such a provision should be inserted in any conveyance is difficult to imagine, for the law, which is impressed upon ' every conveyance, inhibits such a use. No man can use his property in any manner that “ may prove a nuisance [401] to the owners of the adjoining property,” whether restricted by the language of the grant or not. The neighboring owners are not to determine whether the mode of occupation “ proves a nuisance ; ” this is left to the determination of the law. The provision, therefore, does not fall within that class of cases where a particular use, not per se a nuisance, is especially inhibited in the conveyance. Such a provision is an incumbrance. A general prohibition against “ unlawful ” uses is not. My opinion is that the words contained in the mortgage and in the master’s deed executed on the sale under foreclosure of the mortgage, constitute no objection whatever to the title offered. The title was passed on this opinion, the old house taken down, and a manufacturing establishment, put up covering the entire lot. No litigation followed.