January Term, 1901.
George E. Milliman, for the appellant.
Henry M. Hill and Scott Cummings, for the respondents.
The restriction in the deed that the premises of the appellant should not be used for the sale of intoxicating liquors was a valid condition running with the land. ( Plumb v. Tubbs, 41 N.Y. 442.)
Whether that covenant was destroyed by the subsequent quitclaim deed depends upon the intention of the parties at the time the deed was delivered. That intention is to be gathered from the instruments themselves and from all the circumstances and facts surrounding their execution. The quitclaim deed was delivered at the solicitation of Mrs. Matthews. It was for the particular purpose of clearing up the title to the narrow strip two and one-half feet in width. McManus was not asserting title to this strip; he was effectually estopped by the agreement of May 4, 1898, from claiming ownership to it. That agreement was based upon mutual covenants, and it made the brick wall upon his premises a party wall and assured to him a right of way along this strip in controversy, and on the assumption that title to it was in Mrs. Matthews. These facts are incompatible with any claim by him to this property adverse to Mrs. Matthews. If he managed to extort money from her as a consideration for the quitclaim deed it was not for the reason that he was parting with any right in the land, but because in her stress she needed the deed to secure her loan. That the parties did not intend that their rights were to be construed solely by the deed is obvious from the fact that contemporaneously with that conveyance they entered into a written agreement which reaffirmed their prior contract and explained what the intention was as to the extension of the west wall of the Matthews building. This is a cogent circumstance, indicating that the parties regarded the agreement as still in force and not annulled by the subsequent deed. It is not an independent agreement but a distinct adoption of the first contract. It would have been very easy for the parties to make the latter agreement a substitute for the preceding one, and in unequivocal terms to provide for its revocation. They abstained from doing this, and apparently were careful to recognize that agreement, and there is no suggestion in the oral proof that it was to be superseded by the deed. In view of these circumstances, it seems clear that the intention of the parties was to keep in life this first contract.
The reservation of the right of way in the quitclaim deed was proper, because that easement passed along the very piece of land which induced the deed, and that reservation in the deed, therefore, does not militate against the contention that the parties expected their original agreement was still operative.
The undisputed evidence shows, and the trial court has found, that the tenants of Mrs. Matthews leased with full knowledge of the covenant in the first agreement precluding her from selling intoxicating liquors on her premises. They, therefore, took title for the purpose of operating a liquor saloon at their peril. ( Hodge v. Sloan, 107 N.Y. 244; Rowland v. Miller, 139 id. 93.)
The judgment should be affirmed, with costs to the respondents.
All concurred, except McLENNAN, J., not voting.
Judgment affirmed, with costs.