The Great Neck Shores Corporation owned a tract of land at Great Neck, Nassau county, New York, which it divided, as shown on a map, into thirty-four lots, and of which at the time of the commencement of this action, twenty-one had been sold. All of the lots were subject to certain restrictions as to location and character of buildings. The map and restrictions were filed in the Nassau county clerk's office on the 10th of October, 1913. On September 27, 1920, the parties to this action entered into a written contract for the purchase and sale of lot number twelve, as laid down on the map. The lot was to be conveyed by warranty *Page 78 deed, "free from all encumbrance subject to covenants and restrictions in `Declaration of Restrictions' dated Sept. 30, 1913 filed in Nassau County Clerk's office October 10, 1913; and to all covenants, agreements and restrictions contained in any other instruments of record affecting said premises. And to said covenants running with the land * * *." The purchase price was $42,500, of which $4,250 was paid on the signing of the contract, $20,500 by assuming two mortgages, and $17,750 to be paid on delivery of the deed on October 18, 1920. The date for the delivery of the deed was subsequently postponed to October 27, 1920. On that date plaintiff tendered a deed of the property, which defendant refused to accept, upon the ground that the title was not marketable because buildings upon the lot violated certain restrictive covenants. This action was thereupon brought to compel him to specifically perform. The answer denied that the plaintiff could give a good title, and set up as an affirmative defense and by way of counterclaim that the title tendered was unmarketable, and demanded judgment for the return of $4,250 paid at the time the contract was executed.
At the trial it appeared, as shown by the findings, that there is a dwelling on the lot, a substantial portion of which is located 44.83 feet from the front street line and in the rear of the lot is garage located within five feet of the rear lot line and a portion of which touches the line of an adjoining lot.
The trial court found the location of these buildings did not render the title unmarketable and that the deed tendered, when delivered to defendant, would convey a good and marketable title. From a judgment entered to this effect an appeal was taken to the Appellate Division, where the same was unanimously affirmed. Appeal by permission of this court followed.
Does the location of the dwelling and garage render the title unmarketable? The answer to the question depends *Page 79 upon the restrictions imposed as to the location or maintenance of buildings.
The declaration of restrictions provided, among other things, that: "The property shown on said map is held and shall be conveyed subject to the restrictions, conditions, covenants, charges and agreements set forth in the various subdivisions of this Declaration, to wit:
"First. The restrictions, conditions, covenants, charges, and agreements set forth in this Declaration shall affect all of the property shown on the aforesaid map. * * *
"Sixth. No building, nor any portion or projection thereof, shall be erected or permitted within 50 feet of any front street, nor within 10 feet of any boundary line on either side of any lot, nor within 5 feet of any rear lot line except * * *. Any two adjoining plot owners may agree in writing to the erection of a garage having one side on the boundary line. * * *
"Fifteenth. All of the restrictions, conditions, covenants, charges and agreements contained herein, shall run with the land and continue until January 1, 1930, * * *.
"Sixteenth. The provisions herein contained shall bind and inure to the benefit of and be enforceable by the Company or by the owner or owners of any property shown on said map, their legal representatives, heirs, successors and assigns, and failure by the Company or any property owners to enforce any of such restrictions, conditions, covenants, charges and agreements herein contained, shall in no event be deemed a waiver of the right to do so thereafter."
The location of the dwelling and garage is a clear violation of the sixth restrictive covenant. The dwelling is more than five feet nearer the front street than is permitted and the owner of the adjoining lot has not agreed in writing that the garage might touch on the boundary line. The violation of this restrictive covenant, in my opinion, renders the title unmarketable. It certainly is not free from doubt. Under the sixteenth *Page 80 declaration of restrictions, the provision that the restrictions should be for the benefit of and enforcible by the owner of any property shown on the map enables an owner of any of the lots to institute a proceeding to have the dwelling moved back so that it will not be less than fifty feet from the front street. The fact that proceedings have not heretofore been instituted for that purpose does not prevent or in any way interfere with a proceeding being hereafter instituted. Delay in moving does not establish a waiver. The wording of the covenant specifically so provides.
But it is urged that the restriction as to location of the dwelling does not apply, because it was constructed before the declaration of restrictions was filed. I am unable to appreciate the force of the suggestion, since the restrictive covenant is directed against maintenance as well as location. The language is: "No building, nor any portion or projection thereof, shall be erected or permitted." It is quite evident, when the corporation divided the tract into lots according to the map, and filed with the map the declaration of restrictions, and thereafter sold lots according to the map and restrictions, it limited not only the construction of buildings, but their maintenance. The violation, therefore, of the restrictive covenant may be restrained at the suit of one who owns property, or for whose benefit the restriction was established, irrespective of whether there were privity either of estate or of contract between the parties, or whether an action at law were maintainable. It is well settled that where a uniform plan of improvement restricting the use to which each parcel of a tract can be put is adopted, and parcels are sold with reference thereto, mutual negative easements are created irrespective of the order of the conveyances. (EquitableLife Assur. Society v. Brennan, 148 N.Y. 661; Sharp v.Ropes, 110 Mass. 381.) If the owner of one lot can permit a dwelling *Page 81 to be erected or maintained nearer the front street than the covenant provides, then other owners of lots can do likewise, an easy way to wipe out the covenant and thus destroy the entire scheme which the owner had when the tract was divided into lots, and in view of which it is fair to assume purchases were made. The negative covenant was for the benefit of lot owners. It was so intended and the owner of any lot has the right to see that such covenant is kept and enforced. (Booth v. Knipe, 225 N.Y. 390;Korn v. Campbell, 192 N.Y. 490; Hano v. Bigelow,155 Mass. 341; Oliver v. Kalick, 223 Mass. 252; Hartt v.Rueter, 223 Mass. 207.)
To entitle a vendor to specific performance he must be able to tender a marketable title. A purchaser is not compelled to take property, the possession of which he may be obliged to defend by litigation. (McPherson v. Schade, 149 N.Y. 16.) He should have a title that will enable him to hold the land purchased free from probable claim by another; a title which, if he wishes to sell, would be reasonably free from doubt. If it be not so, then specific performance should be refused. (Vought v. Williams,120 N.Y. 253; Fleming v. Burnham, 100 N.Y. 1.) The title to the lot in question, by reason of the location of the dwelling thereon, does not measure up to this requirement.
The location of the garage, I also think, renders the title unmarketable. The restrictive covenant provides that a garage could be located as is the one in question, provided there were an agreement in writing between the adjoining lot owners. There has been no such agreement. Any agreement, if one has been made, so far as appears, was oral and it is at least fairly to be inferred, might not be enforcible against subsequent owners of the adjoining lot. Where there is a defect in the record title to land which can be supplied only by resort to parole evidence, and the title may depend upon questions of fact, the general rule is that the purchaser *Page 82 will not be required to perform his contract. (Irving v.Campbell, 121 N.Y. 353; Holly v. Hirsch, 135 N.Y. 590.) The same rule applies to apparent incumbrances. (Moore v.Williams, 115 N.Y. 586.)
I am of opinion, for the reasons stated, that the plaintiff cannot give a marketable title.
The judgments appealed from, therefore, should be reversed, the complaint dismissed, and judgment directed for the defendant on his counterclaim, with costs in all courts.