I am constrained to dissent from the view taken by the majority of my brethren of the power of the court to administer the equitable relief demanded by, and awarded to, the plaintiff. The plaintiff seeks to be relieved from the obligation of a covenant, assumed in the deed conveying to it the property in question and running with the land, which restricted its use to "church purposes only." The question of the case is whether the plaintiff is entitled to equitable relief. As an appeal to the equity powers of the court, it is necessary that the case shall fall under some recognized head of equity jurisdiction. I know of no branch of that jurisdiction, which would comprehend such an action as this. It is asserted, however, that the power of a court of equity "is co-extensive with the rights of persons to relief" and that the provisions of our Code are broad enough for the case. The first assertion is true, only, in a case of equitable cognizance. When a person brings an equitable action, he must maintain it upon some equitable *Page 13 ground. However elastic and discretionary the exercise of the power to grant equitable relief, I do not believe that it can be properly invoked by a party to cancel a covenant in his grant. I am not aware of any precedent and we are cited to none. Though in matters of apparent equity, as fraud, or breach of trust, precedents are not necessary, it is dangerous to extend the authority of the court further than the practice of former times. When Quintard, the plaintiff's warden, took title to the property for it, temporarily, he was not imposed upon, or deceived, with respect to the covenant. There is no charge of any fraudulent practices, or of mistake, in that respect. The plaintiff is seeking, affirmatively, to annul, as a cloud upon its title, an agreement, which entered into the consideration for the conveyance, upon the ground that it was invalid, because unenforceable. If the invalidity of the covenant can be established by extrinsic evidence, then the plaintiff can defeat any action brought to enforce it. Can it be true that it is a cloud upon the title? There is no adverse claim to the property and whether the restrictive covenant be valid or invalid, in either case, how can it create a cloud upon title? If invalid, the defect would, necessarily, appear in any proceeding by the defendant to enforce it. I do not think that the fact that a defense exists to its enforcement is sufficient to warrant a resort to an equitable action. (Washburn v. Burnham, 63 N.Y. 132,135; Town of Venice v. Woodruff, 62 id. 462, 467.)
Nor do I think that the action is maintainable within the provisions of section 1638 of the Code of Civil Procedure. That section provides, as the title of the article of the Code reads, for an "action to compel the determination of a claim to real property." No such claim is made here adverse to that of the plaintiff and, however broadened in its provisions by amendment, the section, still, does not seem properly applicable to such a case. It provides for actions "to compel the determination of any claim adverse to that of the plaintiff * * * to any estate in that property * * * or to any *Page 14 interest * * * including any claim in the nature of an easement therein * * * and also including any lien or incumbrance upon said property, of the amount of value of not less than two hundred and fifty dollars." I am at a loss to perceive how this covenant of the plaintiff, to use the property for "church purposes only," comes within the description of any of the claims referred to by the Code.
VANN and WILLARD BARTLETT, JJ., concur with HAIGHT, J., and CULLEN, Ch. J., concurs in result; HISCOCK and COLLIN, JJ., concur with GRAY, J.
Judgment accordingly.