I am unable to concur in the reversal of this judgment and am of the opinion that the cause was properly decided at the Special Term. (See St. Stephen's Church v. Church of Transfiguration, 59 Misc. Rep. 560.) The .plaintiff seeks to have the court obliterate from a deed a covenant which was not simply personal between the parties to that deed, but which was solemnly declared to be one which ran with the land. It placed a restriction upon the use of property. The transfer of the property was really made by one religious corporation to another and restricted the use of the property to religious purposes or church uses. While the deed from the defendant-was originally made to Mr. Quintard, it is nevertheless conceded that that gentleman held the title- only until the permission, of the diocesan authorities of Hew York to transfer the property could be obtained.
It is indisputable that by the delivery to and acceptance of the deed by the plaintiff, it became bound to the observance of that • covenant. The court is now asked to destroy it because it is inconvenient to the plaintiff to be bound by it. There is no adjudicated case which is authority for this action, nor, in my judgment, can it ..be supported by principle. The argument of the plaintiff seems to proceed upon the theory that the covenant is a cloud upon title and, therefore, may be removed by a court of equity. A covenant-may be an incumbrance, and Courts of equity have power to remove adverse titles and incumbrances which affect title,-but the essential condition to the exercise, of jurisdiction in such cases is and always has been that the outstanding title or incumbrance, although in form Valid, must as matter of fact be invalid.
I ain not. prepared to assent to the proposition that a covenant *177running with the land, which is wrought into the very deed by which the plaintiff claims title, can be said to be an incumbrance which is- invalid and which a court of equity should interfere to remove. The majority of the court appear to be of the opinion, that authority is to be found for this action in what was decided by Chancellor Kent in Hamilton v. Cummings (1 Johns. Ch. 517). That case merely decided that the court had power to order a bond or other instrument to be delivered lip to be canceled whether the instrument is or is not void at law.or whether it be void on the face of it or by matters shown by proofs in the case. But the court did not decide and it has never been decided that a court of equity could strike out from a valid instrument a covenant or a- condition which by the express agreement of the parties was made a part of their contract. The question does not arise now with reference to a court of equity enforcing this covenant. It is true that the cases ordinarily relating to. restrictive covenants are those arising in connection with the interests of neighborhood property owners, and this is a simple case of one religious corporation making a deed of property to another religious corporation with the intent and object of having the property conveyed used only for religious purposes; but I am unable to see why such a covenant could be destroyed by. a court of equity simply because of inconvenience to the grantee, who desires to avoid the effect of that covenant in order that the property may be made more available to it commercially. Courts of equity are not constituted for the purpose of destroying covenants. They may refuse- to enforce them when equitable considerations are presented such as appeared in Trustees of Columbia College v. Thacher (87 N. Y. 311) ; but covenants, provisions and conditions of deeds are not to be expunged and virtually a new deed made by the court contrary to the agreement of the parties deliberately entered into, as in this case.
I, therefore, dissent.
Laughlin, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.