On September 27, 1920, the parties entered into a contract of purchase and sale of plot No. 12 on a map entitled "Grenwolde, Property of the Great Neck Shores Corporation, situated at Great Neck, Nassau County, New York." The map shows upwards of thirty plots laid out on attractive and symmetrical lines. Some of the plots have been sold. The property, which had been conveyed to plaintiff by such corporation, was to be conveyed by warranty deed free from all incumbrances subject to the covenants and restrictions in a declaration of restrictions, made and executed by such corporation, dated September 30, 1913. The declaration and map reveal a plan to sell lots pursuant to building restrictions enforcible by any purchaser of a lot against any other lot owner who violates such restrictions. (Korn v.Campbell, 192 N.Y. 490.) The purchase price was $42,500. The purchaser refused to perform on his part on the ground that the vendor could not convey good and marketable title because of violations of certain restrictive covenants respecting the location of buildings. Whereupon plaintiff brought this action to compel specific performance of the contract.
The declaration of restrictions contains among others the following restrictive covenants: "No building, nor any portion or projection thereof, shall be erected or permitted within fifty feet of any front street nor within *Page 83 ten feet of any boundary line on either side of any lot, nor within five feet of any rear lot line," but any two adjoining plot owners may agree in writing to the erection of a garage having one side on the boundary line.
It also provides: "Any particular restriction, condition, covenant or agreement herein contained, may be annulled, waived, changed or modified by the Company as to any property owned by it, and with the consent of the owner thereof, as to any property sold, provided the same can be done without injury to the purchasers."
The court found: "That the house erected upon said property extended to within 44.83 feet of the front at which said premises were located," and "That the garage erected upon said property extends to within five feet of the rear lot line of the lot of said premises and touches the same," but refused to find as requested by the defendant either: "That the said violations of restrictions injured the purchasers of other properties in said development," or "That no waiver of said violations of said restrictions by the Great Neck Shores Corporation or by any of the purchasers of lots was ever recorded or tendered to defendant," or "That the violation of said declaration of restrictions aforesaid rendered the title tendered unmarketable." It held that the deed tendered by plaintiff to defendant was a valid deed and "that said deed when delivered to defendant would convey a good marketable title to said Plot No. 12 on the terms of said contract."
Defendant must succeed if plaintiff cannot make out a marketable title. The question for determination in this court is whether, as matter of law, on the findings, the court has compelled the purchaser to subject himself to "a reasonable, decent probability of litigation" (ALDERSON, B., in Cattell v.Corrall, 4 Y. C. Ex. 228, 237) at the suit of the purchasers of other restricted *Page 84 lots. The court will not, to use a hackneyed phrase, compel the purchaser "to buy a law suit" or force him to take an unmarketable title. While it has no power to prevent a future attack on a good title or to insure a purchaser against litigation, specific performance may not be decreed unless the title is free from reasonable doubt. (Crocker Point Assn. v.Gouraud, 224 N.Y. 343.) But when it has been said in general terms that the purchaser cannot be required to complete the purchase if the use of the real property contracted for is substantially restricted, the court has had before it, not minor present violations of the character complained of here, but substantial restrictions upon the future use of the property. (Bull v. Burton, 227 N.Y. 101, 112.) This case, therefore, rests upon its own facts as to which there can be no serious dispute. If plaintiff's title to plot No. 12 is marketable, so far as incumbrances thereon are concerned, so that it may at all times and under all circumstances be forced on an unwilling purchaser after final judgment herein, specific performance should be decreed. (Moore v. Williams, 115 N.Y. 586, 593;Irving v. Campbell, 121 N.Y. 353; Holly v. Hirsch,135 N.Y. 590.)
As indicated by the findings, the question arises in two particulars as to whether the restrictions have been technically violated: First, the house extends within 44.83 feet, that is 5.17 feet less than fifty feet from the front street; and,secondly, the garage is within five feet of the rear lot line. Plaintiff contends that as the house was built before the restrictions were placed upon plot No. 12, it is not subject to such restrictions. A question arises whether it may be permitted to remain in its present location without violating the restrictive covenant which is in terms not only against building within the fifty-foot limit but also against permitting the building to remain within such limit. "Erected or permitted" are the words of the covenant. But the difficulty of assuming that it was the *Page 85 intention of the corporation to bind itself to move the house is almost, if not entirely, insuperable. No ground for saying that such was the intention suggests itself, as the words apply sensibly only to buildings subsequently erected.
No agreement in writing is offered as to the erection in the year 1916 of the garage having one side on the boundary line, but here the owner of the adjoining plot, No. 17, is the only person who can complain. By the terms of the declaration, he could consent in writing to the erection of the garage on the rear lot line. His garage is also located on the rear lot line and I am unable to comprehend what version of the rights of the parties could be put forth to challenge the appearance of actual consent or waiver or to insist upon the technicality of a written agreement.
Even if the declaration has actually been violated as to the location of the house, the corporation and the plaintiff have waived such violation. But their waiver is a nullity unless it may be said that no injury to the purchasers of other restricted lots has resulted. Restrictions of this nature would be of little value if the corporation and an individual lot owner might destroy the scheme for unity and symmetry of plan which make such restricted tracts desirable. How any such purchaser of another lot could establish in an action at law against the owner of plot No. 12, first, a violation of the restrictive covenant, and,secondly, money damages, is difficult, if not impossible to foresee. If such an action could be maintained the court would not compel specific performance. (Bull v. Burton, supra.) No suggestion is made that the market value of any other lot is less than it would be if the violations did not exist. The erection of a slaughter house, dance hall, livery stable or public garage and repair shop on one of the plots would tend to impair the value of other plots, but this slight deviation from the letter of the declaration could not have that effect, *Page 86 even if it were found to be a violation of its fair intent and meaning.
The purchaser, it is urged, may be subject to a suit in equity for a mandatory injunction to compel the owner to move back the house. Again, assuming the fact of violation for the purpose of the argument, does the existence of this possibility, which should at least make the trial court cautious, permit it to force the title on the purchaser? That a court of equity should successfully be invoked to grant the remedy of injunction merely for the purpose of stopping a dubious violation which, in its nature, can harm no one in any justiciable sense, is inconceivable. Equity does not do inequity. The law favors the free and unrestricted use of property and does not look for reasons oppressively to enforce restrictions not within the plainly expressed intention of the parties. (Trustees ofColumbia College v. Thacher, 87 N.Y. 311; Bull v. Burton,supra.)
Every title is in law and in fact either good or bad and equity will not compel a purchaser to take a bad title. A title may be doubtful because of the absence of parties who may be in a position to maintain either contention. At times it is difficult to foresee what action such parties may take, what evidence they may offer, what legal propositions they may put forth. When from the nature of things the court cannot be fully informed, it ought to doubt and, doubting, ought not to compel performance. But it is bound to do the best it can and decide what the law is if the facts are sufficiently developed to enable it to make a determination. As stated by HISCOCK, J., in Reformed P.D.Church v. M.A. Bldg. Co. (214 N.Y. 268, 279): "It seems to be the inalienable right of any person to start a lawsuit, but the court will not regard such possibility of action as a reason for refusing specific performance when a judgment is to be rendered which under the ordinary rule of stare decisis will control the determination of subsequent suits started for the same *Page 87 purpose." Although if sitting in a trial court, in the exercise of discretion, we might be reluctant to grant the relief of specific performance, yet limited as we are to the review of questions of law, we may not refuse to uphold the determination of such court if the judgment rests on discretion. (Cerf v.Diener, 210 N.Y. 156, 162.)
That the court was powerless to make its judgment in this case may not consistently be held. The essential facts are not in dispute. The only doubt arises as to what relief others may seek to claim on the basis of such facts. The purchaser will not be left open to serious attacks by other persons. The contingency of successful attack is so remote as to be negligible.
The judgment should be affirmed, with costs.
HISCOCK, Ch. J., HOGAN and ANDREWS, JJ., concur with McLAUGHLIN, J.; POUND, J., reads dissenting opinion, with whom CARDOZO and CRANE, JJ., concur.
Judgments reversed, etc.