Dorr v. Harrahan

Ames, J. This case closely resembles in many respects the preceding one of Linzee v. Mixer, ante, 512, and falls within the same rule. The grantee in each case holds only a qualified and limited title, and is carefully restricted as to the kind of building that he shall erect, and the use that he shall make of it. In each case, he is endeavoring to get rid of the condition which made a material part of the title that he purchased and accepted, and to acquire a larger title than his deed gives him. In this case, there has been nothing on the part of the grantors bearing any resemblance to acquiescence, and there is no suggestion that they have been guilty of any loches that should interfere with the enforcement of their rights. The defendant insists that such conditions and restrictions in a deed are not to be favored, and that they are not to be extended, by implication, beyond the most bare and literal interpretation of the terms in which they are expressed. He admits that, by the deed, he can build nothing but a dwelling-house; but he also insists that he is at liberty to change this dwelling-house, when built, into a place of business. The deed provides, that the “ buildings, when erected, are not to be occupied for the purpose of carrying on any offensive trade or calling whatever ; ” and he claims that, under a literal construction of this expression, he may establish a grocery in his dwelling-house, provided it be conducted, as it may be, in an inoffensive manner. But this mode of dealing with the condition deprives it of all force whatever, and seems to us to be a mere evasion. There is nothing in the condition that appears to be unreasonable, or contrary to the policy of the law; and there is no reason for doing violence to the language in which it is expressed, or perverting its true meaning. Some kinds of industry might be carried on in a dwelling-house without any inconvenience whatever to the neighborhood. The house might be occupied by a physician or a lawyer, perhaps by a chemist or photographer, and a portion of it set apart as an office or place of business, without any offence or objection. All this would be allowable under the deed. But to change a dwelling-house into a grocery, a work 535 shop, or a market, would be a very different matter. The condition cannot fairly be construed as having any other meaning than to prescribe the kind of building that shall be erected, and the manner in which it shall be used and occupied. Even if the bald and literal construction contended for by the defendant could be sustained, it is by no means certain that under his answer it would be of any avail to him. He admits that in building his house he had it in view to finish a part of it for use as a grocery. Injunction made perpetual, with costs for the plaintiffs.