Heald v. Ross

EMERY, V. C.

Bill by Daniel A. Heald and others against Peter A. Ross and others. Demurrer to bill. Overruled.

The bill is filed to enforce the payment of charges upon lands of defendant Ross, being assessments for the maintenance of Llewellyn Park, in Orange, Essex county, which are claimed to be liens upon the lands by virtue of express charges thereon in the deeds of defendant's predecessors in title, of which charges defendant had notice. The cause is heard upon demurrer to the bill, which discloses the following substantial facts bearing upon the question of the assessment and the lien therefor upon the lauds in question: Llewellyn S. Haskell executed a deed to trustees dated February 28, 1857, which recited, inter alia, his ownership of 50 acres of land, particularly described, and his purpose to devote this tract to the purposes of a private pleasure ground under the name of Llewellyn Park, to be used and enjoyed by certain persons who then were or might thereafter become the owners or occupants of certain other lands and premises in Orange, in the manner and on the terms prescribed, and recited also Haskell's ownership in fee of other lands in the vicinity of the park within the boundaries of four roads named, and containing about 275 acres. The deed, after these and otherits privileges, advantages, and appurtenances, and also an express conveyance of the easement to the park, upon the terms and conditions of the trust deed, and subject to its provisions in respect to the payment of the assessments, which, while they remained unpaid, were made liens and incumbrances upon the lands, payment of which might be obtained through proceedings in chancery; and the deeds also contained full covenants of title and warranty. One of these deeds, dated April 25, 1890, by Thompson to Sawyer, was also made expressly "subject to the payment of certain taxes and assessments upon said premises, and payable to the treasurer of Llewellyn Park, amounting to $18-4.56." On March 18, 1891, Flora Sawyer conveyed to Malcomson, defendant's grantor, the lands in question, with the privileges and the advantages and with the appurtenances. The covenants for title expressly reach to the lands, "with the appurtenances thereto belonging," and the conveyance was made subject to all the covenants, conditions, and restrictions contained in the deed from Thompson to Sawyer, and which contained the express covenants as to the annual taxes for the park being liens on the premises. On June 8, 1895, Malcomson conveyed the lands, "with the hereditaments and appurtenances thereto belonging or appertaining," to the defendant Ross, in fee, by a deed of bargain and sale without covenants, in consideration of one dollar. This deed to defendant contained no express reference to the easement to the park, or to any of the previous deeds, but the bill alleges that Ross is not the beneficial owner, but holds the lands on a secret trust for Malcomson, and that this conveyance was made for the purpose of putting the legal title in Ross by an instrument not containing a reference to the antecedent deeds or the trust deed, and that its purpose was to give some supposed advantage to Malcomson in defense of a suit brought to collect the unpaid taxes and assessments. The bill further charges that Ross accepted his deed with full notice of the charges on his lands as contained in the deeds of title above referred to (and on demurrer this must be taken as true). As to the assessment and payment of the taxes, the bill alleges (paragraph 4) that after the execution of the trust deed (December 28, 1857) the persons who were by its terms entitled to vote on the second Monday in January in each year, and particularly in January, 1886, and each year thereafter, at a place in Llewellyn Park, fixed from time to time by the trustees for the time being, "at a meeting held for that purpose in accordance with the terms of the trust deed," chose managers "by a majority of votes of those entitled to vote under the terms of the said trust deed," each person casting one vote for every acre of land owned or occupied by the person voting and subject to such assessment; and that at the meeting in each year, by a like majority of votes, a tax or assessment for the park and the state taxes was Imposed upon all persons having the right to the use and enjoyment of the park (except one Charles Harrison, who was exempt under the trust deed), never exceeding $10 per year. The bill further alleges (paragraph 20) that the taxes and assessments imposed on defendant's lands from 1870 to 1885, inclusive, were paid by the respective grantees and owners of the lands (naming them), or some of them, and that the taxes imposed in the manner hereinafter stated, and in accordance with the provisions contained in the trust deed, from 1886 to 1897, inclusive, have not been paid, although demand of payment has been made upon the owners of the premises from time to time; and that at the time of filing the bill (December 6, 1898), there was due and owing for taxes imposed, as aforesaid, upon the lands conveyed by the Sawyer and Malcomson deeds, $56.80 for each year; in all, $681.60, besides interest. The defendants to the bill are Malcomson, Ross, and also the previous owners, Thompson and Sawyer, and others made parties as claiming under them by mortgages or otherwise. The defendant Ross specifies seven grounds of demurrer: "(1) Than it appears by the facts pleaded that the moneys in question are not a charge on the lands sought to be sold;

(2) that it is not alleged that the defendants, or any of them, are or were persons having a right to the use and enjoyment of the park;

(3) that it is not alleged that the meeting at which the taxes were voted was held at a place in said Llewellyn Park; (4) that no case for discovery or relief is shown; (5) that the taxes were not assessed by an instrument in writing, signed by the party to be charged; (6) that there is no right in others, without the presence or participation of the owners, to levy assessments or taxes on defendant's lands; (7) that there is no allegation that the taxes were not in excess of the amount required."

Edward M. Colie, for complainants.

Jos. A. McCreery and Mr. Malcomson, for defendant Ross.

EMERY, V. C. (after stating the facts). As to the third specification of demurrer, which relates to the form of making the assessments and the person making the same, I am of opinion that this specification is not well founded in point of fact, and that the allegations of the bill in respect to the manner of making the assessment are sufficient. The fifth specification is based on the contention that the statute of frauds is applicable to the case, but I think this statute has no bearing or application in the case. So far as the origin of the charge is concerned, the question here is whether an express charge upon defendant's lands, made in writing, under seal, by his predecessors in title, in favor of the owners of adjoining lands, over which defendant's lands have an easement by grant as appurtenant thereto, in valid against defendant, who took his landswith notice of the charge. The seventh specification must be overruled. This objection is based on an assumption of the right of the annual meeting to fix a charge for the maintenance of the park, etc., but is intended to claim (as I understand it) that the complainants must, in order to recover the amount so fixed, allege and prove that the amount so fixed was necessary for the purposes. The only express limitation in the trust deed of the power of the annual meeting is the restriction of the tax to $10 per acre, and, if the action of the annual meeting in fixing the tax within these limits (which is alleged in the bill) can be reviewed at all, it certainly must be upon affirmative allegations set up and proved by way of defense, showing such excess of assessment over the necessary expenditures as to justify the court in setting the same aside, either wholly or in part. Prima facie, and on demurrer, the statements of the bill in reference to the amount of the assessments are sufficient.

The other specifications raise the substantial ground of demurrer mainly argued at the hearing. This was that under the trust deed only the occupants of the lands were entitled to vote, or have the use of the park; and that the owner, unless also an occupant or resident upon his lands, was not entitled to the use of the park, or to a vote at the annual meeting, nor were his lands liable to the charge. This contention was based upon the construction of the trust deed and the effect to be given to a qualification or limitation which appears in the deed. The deed designates seriatim and by numbers the four classes of persons entitled, and after this designation of parties entitled occurs the clause, "so long and for such time only as they shall severally reside upon the said lands and premises within the limits aforesaid." The question is whether this limitation applies solely to the fourth class of persons designed, viz. one Charles Harrison, and purchasers from him of certain outside lands, or whether it included all the four classes of persons; the first class being Haskell, his heirs and assigns, which class includes the defendant. My conclusion, upon an examination of the entire deed, is that the limitation applied only to the fourth class, viz. Harrison and the purchasers from him, and that Haskell and his grantees of the 275 acres were entitled to the use of the park, and entitled to vote as owners of the lands, without being actual occupants or residents thereof. But the construction of the trust deed upon this point is not the decisive point for the purposes of the present suit, for it will be noticed that upon the record the defendant is the owner of lands, which in fact have attached to them by express grant the easement in question as an easement appurtenant, part of the consideration for this express grant of the lands and easement being the imposition of a charge upon the lands conveyed in favor of the legal owners of the servient lands, and the persons charged with the care and preservation of the servient lands for the benefit of the easement to defendant's lands. The bill expressly alleges that the deeds to defendant's predecessors in title from Wiswall down to Malcomson conveyed the easement to the park in question as appurtenant to the lands, and that the deed to defendant Ross conveyed the same land and premises conveyed to Malcomson. The easement, if conveyed, was appurtenant to the lands, and passed to defendant Ross under his conveyance of the lands with the appurtenances. The conveyance of the easement in these deeds was not limited or qualified by occupancy or residence on the lands. In view of these allegations, which must be taken as true, that the easement to the park was in fact conveyed to defendant by the deeds, the point now to be decided is whether defendant can, on demurrer, raise the question that he has, under the trust deed, no title or right to the easement or to the use of the park merely as owner, but only as occupant or resident of his lands, and that no recovery can be had unless it is alleged that he is such occupant. In effect, defendant by demurrer claims to set up a de-feet in his title to the easement conveyed by his deed, by reason of the provisions of the trust deed, as a deed paramount to his title, and limiting the easement to the period of occupancy or residence on his lands. Such defect of title might, perhaps, be set up affirmatively as a defense or answer to the complainants' bill seeking to enforce the charge made in their favor by defendant's deeds, but, as it now seems to me, only if it should be alleged and proved by defendant not only that the title was defective, but that an eviction from the easement conveyed by the deed, actual or constructive, has taken place. This is the rule where failure or defect of title is set up as a defense to purchase-money mortgages given upon lands. Glenn v. Whipple, 12 N. J. Eq. 50 (Williamson, Ch.; 1858); Hulfish v. O'Brien, 20 N. J. Eq. 230, affirmed on appeal on this point 22 N. J. Eq. 471, 472 (Err. & App.; 1871). The easement to the park was here originally conveyed to Wiswall by warranty, and the benefit of this covenant ran with the lands and inured to the defendant without regard to the absence of covenants in his deed. Kellog v. Piatt, 33 N. J. Law, 328, 330 (Sup. Ct; 1869). In actions on such covenants, failure of title and eviction, actual or constructive, must be shown by the covenantee (Id. 335; Scriver v. Smith, 100 N. Y. 471, 477, 3 N. E. 675 [1885]); and the objection of failure of title and eviction is allowed in equity to prevent circuity of action, must here be raised by the defendant, and is for him to set up and prove affirmatively. Certainly, the objection of failure or defect of title cannot prevail in defendant's favor on demurrer to a bill which alleges defendant's title to the easement.

The specifications of demurrer do not expressly raise any question as to the validity of the trust deed or to the deeds through which defendant Ross claims title as imposing charges upon lands which are illegal or inoperative, but at the argument it was contended by defendant's counsel that, if complainant's construction of the deeds was correct, and it was held that under them the charge was imposed on the lands, and not upon the persons, then the charge was invalid, (1) because it violated the rule against perpetuities; (2) because it violated the statute relating to tenures of land (1 Gen. St. p. 879, § 128, being the statute quia emptores, 3 Westm. [18 Edw. L, c. 1]). These objections, as it seems to me, are founded upon a misapprehension of the real character of the equitable jurisdiction invoked. The object of the bill is to enforce a charge upon defendant's lands, which was imposed thereon by the express stipulation of the deeds under which he claims, and of which he had notice. The charge upon the lands was imposed originally as part of the consideration to be paid for the conveyance of the lands and of the easement in question; and the payments of the charge, when made, were received in trust for the preservation of the easement. The real equitable question, therefore, is whether the charge which, at the creation of the easement, was imposed for its preservation and continuance, can be enforced in equity, during the actual continuance of the easement and defendant's enjoyment or right to enjoy the easement, as appurtenant to his land. It is substantially a case of taking an estate cum onere, and the equitable jurisdiction is based on the fact that the charge expressly imposed by agreement upon the estate for the purpose of discharging the onus or burden is an equitable charge only, and its enforcement is based on the equitable doctrine of a trust imposed on the lands. In Clarke v. Southwick, 1 Curt. 297, 5 Fed. Cas. 981 (Fed. Cas. No. 2,863), certain mill owners by agreement associated themselves for the purpose of constructing reservoirs, etc., to improve the flow of the stream, and agreed that there should be a lien on their respective estates for the share of the expenses each was to pay and it was held that this agreement created an equitable lien on the lands of an owner which might be enforced against a purchaser of the lands with notice after the debts had been incurred. Curtis, J., says (5 Fed. Cas. 982): "Whenever the owner of real property agrees, in writing, for a valuable consideration, that a lien for a debt or duty shall exist on that property, in the view of a court of equity it does exist. Such an agreement is not executory merely, but, so far as respects the parties, and those claiming under them, as volunteers or with notice, it is executed. It creates a trust which this court will enforce, and by means of it work out, according to its modes of proceeding, the payment of the debt or the performance of the duty which the parties have manifested their intention to have thus secured." The trust deed for the park, under which, of course, no charge upon other lands benefited could be expressly made, stipulated as part of the consideration for undertaking the trust that this charge for the expenses should be imposed by Haskell in his deeds for the lands benefited, and the charges were thus imposed to carry out the stipulation. Defendant had notice of this consideration for the charge, and cannot equitably retain the benefit and repudiate the charge upon his lands. If a grant of an easement of way or water across grantor's lands and to grantee's lands in fee should be made, the way or water course to be kept in order, however, by the grantor, and part of the consideration was that the cost of keeping in order should be paid annually by the grantee or his assigns of the laud, and that the amount should be a lien upon the grantee's lands, can there be any doubt, not only that the grant is valid, but that, so long as the duty of maintenance is performed, the lands of the grantee are chargeable in equity with the burden of paying for the continuance and enjoyment of the easement? The present situation is analogous, the difference being rather against the present defendant, in that, the actual preservation of the easement being undertaken by persons selected by the defendant and other grantees of the casement, the case is one where the easement is conveyed subject to the grantee's preserving and maintaining it; and the present suit, although in form a suit by the trustees and managers, is substantially and in practical effect a suit for contribution between the owners of the dominant estates or lands for the moneys expended for the common benefit. The rule against perpetuities is invoked when the question is as to the validity of the limitation for the commencement of a future estate on the termination of an existing estate, and I fail to see how either this rule or the statute relating to tenures has any application to the case. The demurrer must be overruled.