Hemsley v. Marlborough Hotel Co. The original lot, bounded by Pacific, Indiana, Ohio avenues and the ocean, was in 1879 owned by Hamilton Disston and George F. Lee. On May 28th, 1879, Lee and Disston made a deed of dedication of a street sixty feet in width, Market Park Place, and of the park marked Brighton Park. Attached to the dedication deed was the diagram above displayed, and reference was made to the plan of lots upon it, with a statement that the plan was to be recorded. The property now owned by the complainant is lot No. 1, Disston cottage, and No. 2 and No. 3 on said diagram. The lots owned by the defendant are numbers 14 to 20, inclusive, on the diagram. As already remarked, the titles to the tracts of both parties came from Disston and Lee. The title to lots No. 2 and No. 3, now belonging to complainant, is traced thus: Disston sold, on May 28th, 1879, to George F. Lee his undivided interest in lots Nos. 2 and 3 as well as in Nos. 4, 5 and 6. On September 11th, 1879, Lee conveyed the same lots to Mary Disston. The first of these deeds did not, but the latter deed did, contain a covenant against buildings other than dwellings, similar in language to the covenant already set out. It also contained a covenant against the sale of liquor. On May 18th, 1880, Mary Disston conveyed lots Nos. 2 and 3 to Albert H. Disston, and he, on March 4th, 1881, conveyed them to one Corinth, who again, on October 20th, 1881, conveyed to Mary Disston. The title to the Disston cottage, lot No. 1, also now owned by complainant, came through a deed from Lee and Disston to Mary Disston, made May 28th, 1879. This deed contains no dwelling restrictions but a covenant against liquor selling only. By these deeds it is perceived the title to lots 1, 2 and 3 came to Mary Disston. On October 1st, 1895, the trustees under her will, in conjunction with her husband, made a deed of these lots to the complainant, Frederick Hemsley. The defendant traces its title for lots Nos. 15 and 16 through a deed from Lee and Disston to Amelia Sparks, dated September 10th, 1879. For lots Nos. 17, 18, 19 and 20 the title is traced through a deed from Lee and Disston to Mary Disston, made May 10th, 1880, and for lot No. 14 through a deed made Hemsley v. Marlborough Hotel Co. by Lee and Disston on February 10th, 1880, to Hinman Lander Hall. Each of these deeds contained a dwelling-house restriction, in the form already set out. Mr. Samuel H. Grey, for the complainant. Messrs. Clarence L. Cole, David J. Pancoast and Richard V. Lindabury, for the defendant. REED, V. C. The defendant, in the first place, denies that the structure about to be erected is in violation of the covenant. Ordinarily the structure in question, intended to be in all respects, excepting the sale of liquor, a hotel, could not be properly styled a dwelling. When, however, the purpose of the restriction, as manifested by the designated structures which are specially forbidden, is sought, it becomes a close question whether, within the meaning of the parties to the contract, a building in which people dwell, although for brief and uncertain periods, comes within the forbidden class of structures. But conceding that the structure contemplated is not a dwelling, what is the complainant's right to enforce the covenant? It is entirely settled that where an owner sells a portion of his land, he can impose a restriction, not obnoxious to public policy, upon the use of his remaining land (Brewer v. Marshall, 4 C. E. Gr. 537), or upon the portion sold (Coudert v. Sayre, 1 Dick. Ch. Rep. 386), which covenant the owner or his grantee can enforce. When such a covenant is included in the deed to a grantee and such covenant is made for the benefit of the remaining land of the vendor, the right to enforce the covenant passes to a subsequent grantee of the vendor. The questions primarily propounded are, does the complainant stand in the attitude of a subsequent purchaser from the vendor, with whom defendant's predecessor in title made his or her covenant; and secondly, was such covenant made for the benefit of the land subsequently sold to the complainant's predecessor in title? The first deed in complainant's chain of title was from Disston Hemsley v. Marlborough Hotel Co. to Lee, putting a title in severalty in Lee to lots Nos. 2 and 3. The title to lot No. 1 passed from Lee and Disston on May 28th, 1879. The first deed in defendant's chain of title was to Amelia Sparks, dated September 10th, 1879. The Sparks deed, therefore, containing the covenant against buildings other than dwellings, was made subsequent to the first deeds in complainant's chain of title. And even if the deed from Lee to Mary Disston on September 11th, 1879, should be regarded as a deed from a vendor in common with the Sparks deed, yet the latter was acknowledged by one of the grantors on the 11th of September, and so neither can be regarded as possessing priority of time in the date of their execution. It cannot be said, therefore, that when the predecessors in title of Mr. Hemsley bought, they took the land with the benefit of the restrictive covenant contained in the Sparks deed attached to it. So far, then, as the complainant's right to enforce the covenant contained in the Sparks deed, or in any other of the defendant's deeds, such right must rest upon a general scheme or understanding that all the lots plotted should be sold for residential purposes, and that each deed therefor should contain a restriction against other use. In respect to the restriction against buildings other than dwellings, there is no trace of a general understanding or scheme in respect to such covenants. The plot itself attached to the dedication deed indicates nothing but a division of the land into lots, upon which land is a dedicated street and park. Nor does the dedication deed itself contain any allusion to such a restriction. It does contain an agreement that the grantees of such lots shall covenant not to sell spirituous liquors. Nor does the method adopted in selling the lots show uniformity in the matter of restrictions. In most of the deeds, I think, there were restrictions against factories and objectionable buildings of like character. The dwelling restriction was only incorporated in a few of the deeds. The Adams lot had been sold before the execution of the dedication deed, with only a factory restriction; and lots Nos. 7, 8, 9, 10 were afterwards sold with factory restrictions only. Long before the present defendant bought the site upon which it proposed to erect a boarding-house or hotel the neighbor Hemsley v. Marlborough Hotel Co. hood was studded with boarding-houses. Lots 7, 8 and 9 were the sites of buildings used by the Mercer Memorial Home as a boarding-house. Lot No. 10 was covered by the Revere Hotel and lot No. 11 by the Runnymede Hotel. These lots were conveyed, as already remarked, without dwelling-house restrictions. But, in addition, lots Nos. 12 and 13, conveyed to Hall with such restrictions, were each sites of buildings used as boarding-houses. Upon lot No. 12 was the Glasslyn and upon No. 13 the Chatham. These were, if the present structure will be, breaches of the covenant, which have remained unchallenged by the complainant or any other grantee. In regard to the use of the property now belonging to the defendant, it appears that Lewis T. Bryant, who sold to John J. White, who sold to the defendant, bought the property from the Female Academy of the Sacred Heart. The building upon the land was used in part as a boarding-school while owned by the academy. Mr. Bryant bought on May 31st, 1900, and took possession on the 1st of June. He changed the interior of the house and used it during the season as a hotel or boarding-house, under the name, exhibited upon two signs, of the Waverly Villa. No objection to its use as such was interposed by anyone. Indeed, the building upon lot No. 1, known as the Disston Cottage, was, and is, used by the complainant as an annex to his hotel, and in it guests are lodged in the same manner as in the main building. It thus appears that there was nothing in the transaction to exhibit an understanding that the dwelling-house restriction was to be common to all grantees, and was to be inserted in all deeds for the benefit of the lands conveyed to the different purchasers, or that each purchaser was to be burdened with his own and benefited by the other covenants. These features were declared by Vice-Chancellor Green, in the case of De Gray v. Monmouth Beach Club House, 5 Dick. Ch. Rep. 329, 340, to be essential to a scheme which would confer upon one grantee the right to enforce a covenant made by another grantee with the common vendor. The dwelling-house covenant is not to be found in all the deeds executed by Lee and Disston, nor in all the deeds executed by Mary Disston, who is also a common grantor of land owned by |