I concur with Mr. Justice Patterson. At common law an ease.ment or right in real property could be created by grant, and when such easement or right was thus created, the fact that a purchaser of the servient estate took it without knowledge of the grant, was no defense to an action brought to enforce it. The defendant’s-*601grantor, when seized of this property, covenanted by a deed conveying the adjoining property that whenever she or her heirs or assigns should improve this property, such improvement should consist in the erection of one or more first-class dwelling houses, the front of which should be placed upon a line with the front of the other houses, that is, a line upon which the grantee of the adjoining premises covenanted to place the front of his buildings. The effect of this grant was that the owner of real property made a grant containing a covenant affecting the property then owned by the grantor. But for the Recording Act there could be no question but that this grant bound the property of the grantor and vested in the owner of the adjoining property a right to enforce this covenant whether a grantee of the property had notice of the grant or not. The conveyance in which this covenant was contained was a deed duly executed and acknowledged containing all the requisites of a grant and bound the party to it and “ her heirs or assigns.” The Recording Act (1 R. S. 756, § 1; Laws of 1896, chap. 547, § 241) provides that every conveyance of real estate may be recorded in the office of the clerk of the county where such real estate shall be situated, and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith and for a valuable consideration from the same vendor, his heirs or devisees of the same real estate or any portion thereof whose conveyance shall be first duly recorded. It is only because of the provision of this statute that the question of notice was material, but the deed containing the covenant was duly recorded in the office of the register of the county of Few York, where the real estate was situated, and thus the provisions of this section do not apply.
In Mott v. Oppenheimer (135 N. Y. 312) an agreement had been entered into by P. and A., who were the owners of adjacent lots in the city of Few York, whereby it was provided that either party, his heirs or assigns, might erect a certain party wall, the center line of which should coincide with the dividing line of their lots. It was held that this was an agreement that ran with the land, but the defendant there claimed that he took title to the land without notice of the covenant. Judge Gray, in delivering the opinion of the court, says : “ If the agreement constituted a charge upon the defendants’ lands, I think it quite immaterial whether the *602conveyance of the title to them expressed their subjection to the agreement or not. The fact could not be changed and the plaintiffs could not be deprived of any rights which they may have derived through such an agreement by an omission in the deed to the adjacent owner, and of this agreement the defendants had constructive notice from its public record, -if they did not have actual notice.” In discussing the question as to whether the covenant in that case was one running with the land, he said : “ The question whether a contract having relation to lands is personal, or whether it constitutes a "charge upon the lands, obviously, must be determined by a consideration of the expressed intentions of the parties and of the existence of any interest in the land raised by force of its covenants. Words of grant are not essential tó create the interest, and a covenant may be construed as a grant.” In Hart v. Lyon (90 N. Y. 663) the court held that such an intention was expressed because the- instrument creating the covenant bound the heirs and assigns of the grantor. This grant, creating a charge upon real property duly executed by the owner thereof and duly recorded, was, under the Recording Act, notice to all subsequent purchasers of the real estate, and the defendant was thus chargeable with notice of the covenant and took the estate conveyed to him subject thereto.
Judgment reversed, new trial ordered, costs to appellant to abide event,