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signs that they will not so build "; but the objection to such & construction is, that it requires something to be inserted that the grantor never assented to. He did not agree that his executors, or his administrators, or his assigns should not build, but only that he would not build. He used no words that connected any one except himself with the restriction against building, or that imposed an obligation in that regard upon any other person. It was not a general covenant “not to erect," as in Phænic Ins. Co. v. Continental Ins. Co., 87 N. Y. 400, but a special covenant that the grantor would not erect, showing an intention to contract against the acts of one person only.
While effect should be given to every word of a written instrument, if possible, it is necessary sometimes to reject a part as surplusage; and it is never allowable, in order to prevent that, or to effect any other result, to insert that which the parties did not agree to. A personal covenant binds the heirs, executors, and administrators in respect to assets, so that the word "assigns" only need be rejected as surplusage, in order to relieve the case of all difficulty. A strained construction that has no foundation to rest upon except the single word "assigns," used in the descriptive and unsubstantial way already mentioned, should not be resorted to when it involves a serious result to the grantor with but slight benefit to the grantee, because it is improbable that, under such circumstances, such a result was intended. Hence only by the use of plain and direct language of the grantor should it be held that he created a right in the nature of an easement and attached it to one parcel as the dominant estate, and made the other servient thereto for all time to come. We think that the language used by the parties permits no such result. We agree with the learned general term that the construction contended for by the plaintiff “would be giving a scope to the covenant far beyond what the language used requires, and beyond what the grantees of lot No. 22 had a right to assume in accepting a conveyance of that lot. An encumbrance affecting lot No. 22 for the sole benefit of lot No. 24, and in a conveyance of lot No. 24, into which a purchaser would hardly look for encumbrances upon lot No. 22, will not be inferred by a forced construction of the covenant, or any amplification of its language beyond its natural meaning.”
In London etc. R'y Co. v. Bull, 47 L. T. Rep. 413, upon which the plaintiff relies, the title of the grantee and his lessees was subject to the covenant. The entire language used by the contracting parties, and the circumstances surrounding them when they contracted, showed an unmistakable intention that the restriction should be permanent, and apply to any one who owned or occupied the land. The grantee was the covenantor, and the court did not hold him liable on his covenant for the acts of his assigns, but awarded an injunction against the owners and occupants. While we are unable to concur in all that was said by the court in that case, we do not regard the result as opposed to the principle of our judgment upon this appeal.
In Norman v. Wells, 17 Wend. 136, the defendant was held liable upon the ground that the act claimed to have been a violation of the covenant was his own act, "of which he is annually receiving the avails by way of rent."
We think that the covenant in question was personal to the defendant, and was solely against his own acts; that it did not make him liable for the acts of his grantees or of the subBequent owners; and that as he neither did the acts complained of, nor caused them to be done, no cause of action was established against him.
The order should be affirmed, and judgment absolute rendered against the plaintiff, with costs.
CONTRACTS, CONSTRUCTION OF, GENERALLY: Davis v. Robert, 89 Ala. 402; 18 Am. St. Rep. 126, and note 130. It is the duty of the court to 80 con. Btrue a deed as to carry out the intent of the parties making it, if no legal obstacle lies in the way: Bassett v. Budlong, 77 Mich. 338; 18 Am. St. Rep. 404, and note 409.
EASEMENT CONSTRUCTION OF GRANT. — The construction of a grant of e right of way cannot be aided by parol negotiations, but the language of the grant itself, when uncertain or ambiguous, must be regarded in the light of surrounding circumstances and the situation of the parties: Herman v. Roberts, 119 N. Y. 37; 16 Am. St. Rep. 800. And see, as to construction of grants of easements, Emans v. Turnbull, 2 Johns 313; 3 Am. Doc. 437; Gayetty v. Bethune, 14 Mass. 49; 7 Am. Deo. 188
NOYES V. ANDERSON.
(124 NEW YORK, 176.] COURT OF EQUITY HAS POWER TO RELIEVE PARTY AGAINST FORTEITURI
and from penalty incurred, without willful neglect on his part, by tho breach of a condition subsequent, upon the principle of equity juris. prudence that a party having a legal right shall not be perunitted to avail himself of it for the purposes of injustice or oppression. A mort gagee, for a good consideration, agreed not to foreclose his mortgage, which was then due, until one year after the mortgagor's death, provided that during said period prior mortgages on the same property, which, with his mortgage, exceeded its value, remained unforeclosed, and no interest thereon remained unpaid for more than thirty days after due, "and so long as no taxes or assessments on the said premises remain unpaid and in arrears for more than thirty days." Through the failure, but not willful neglect, of the mortgagor's agent, with whom, she being absent, she had left money sufficient to make payment, a sewer assessment remained unpaid for more than thirty days. But upon learning this fact the mortgagor promptly paid the assessment the day before the summons was served upon her in an action to foreclose the mortgage. Held, that she should be relieved from the consequences of her default in the payment of the assessmento ACTION to foreclose a mortgage. The defendant, in her answer, set up the agreement referred to in the opinion. The trial court directed judgment for the plaintiff, which was reversed by the general term of the court of common pleas for the city of New York, and the plaintiff appealed. Other facts are stated in the opinion.
Thomas Allison, for the appellant.
BRADLEY, J. The agreement of October 2, 1885, by which the plaintiff agreed that no proceedings should, upon certain conditions, be taken to enforce the bond and mortgage during the life of Mrs. Anderson, and for one year thereafter, was founded upon a good consideration; and inasmuch as she had been in default in payment of the sewer assessment more than thirty days at the time of the commencement of this action, the main question is, whether she was, under the cir. cumstances, entitled to relief against the consequences of such default. At the time the agreement was made, the principal Bum secured by the bond and mortgage had become due and payable. The prior mortgages, amounting to twenty thousand dollars, with that held by the plaintiff, amounted to a sum exceeding the value of the premises, so that the only value of the equity of redemption to the defendant was in the obsery
AM. ST. REP., VOL XXI. -42
ance of the plaintiff's agreement to postpone the foreclosure of the mortgage. In view of those circunstances, and of the fact that the defendant was known to be insolvent, it is evi. dent that the purpose of the agreement was to protect her equity of redemption. This was her estate in the premises, and the right to her enjoyment of it was wholly dependent upon the forbearance of the foreclosure of the plaintiff's mortgage, provided no action should be taken on the prior mortgages. And the arrangement resulting in the agreement was made to enable her, so far as the observance of its provisions permitted, to have the benefit of such estate during her life. The right, therefore, to maintain this action to foreclose the mortgage was dependent upon the failure of the defendant to perform some condition in the agreement, and a forfeiture of her right to the further protection under it of her equity of redemption.
The power of a court of equity, in cases properly requiring it, will be exercised to relieve a party against forfeitures and from penalties. And this is upon the principle of equity jurisprudence, that a party having a legal right shall not be permitted to avail himself of it for the purposes of injustice or oppression. The doctrine was applied to relieve a mortgagor from the forfeiture to which he was subjected, and an obligor from the penalty with which he was chargeable by the common law on default. It is also not only available to cases of leases, where forfeiture of the term and entry are provided for as the consequences of non-payment of rent on the day it becomes due, but is extended to other cases, and more especially to those (although not necessarily confined to them), where the default resulting in forfeiture is in payment of money, as in such case adequate compensation can be made: Pomeroy's Eq. Jur., secs. 433, 450, 451. This relief will not be afforded in cases where the default and forfeiture have been occasioned by the willful neglect of the party seeking it. Nor will it ordinarily be given where the breach is of a condition precedent, although that rule may not be without exception. In the present case, the default was in the performance of a condition subsequent, because the right of the plaintiff under the contract vested on its delivery, subject to the provision that it should be avoided or rendered ineffectual by a subsequent breach of the conditions, or any of them, upon the observance of which the defendant's right given by the contract depended. And the defeat of such right by her default, which
the plaintiff by this action seeks to make available for the foreclosure of the mortgage, would result in a forfeiture from which, or the consequences of it, the court, upon the principle before mentioned, may have relieved the defendant, if in other respects she was entitled to the interposition of its equitable powers for that purpose. The stipulation of the plaintiff's agreement essentially differs, in its nature and object, from a provision in a mortgage to the effect that the principal sum shall become due on a specified default in the payment of interest as provided by it. In the latter case, provision is so made for the time when the principal sum may become due, and that time is regulated by an event which may or may not occur, so far as it is dependent upon the default of the mortgagor. The consequence so produced is not deemed a forfeiture. The result is, maturity of the principal debt at the time, not definitely fixed, when the mortgage is made, but specifically stipulated for in that instrument. And in such case the court, as a rule, will not grant relief to the mortgagor from the effect of his default, when nothing is done on the part of the mortgagee to render it unconscionable for him to avail himself of it: Noyes v. Clark, 7 Paige, 179; 32 Am. Dec. 620; Malcolm v. Allen, 49 N. Y. 448; Bennett v. Stevenson, 53 N. Y. 508. But the case at bar must be considered and determined in the light of the undisputed facts and circumstances under which the agreement was made, and in reference to the purpose represented by it. The money secured by the mortgage was due at that time. The parties made no stipulation modifying the terms of the bond and mortgage, nor in terms extending the time of payment, although the right to pay it would exist while foreclosure was suspended. Payment, evi. dently, was not contemplated. Nor was the mere extension of the time of payment of the mortgage debt the object or purpose of the agreement. And the conditions which the defendant was required to perform were independent of such debt, and did not embrace the payment of any part of it. The purpose was to obtain and give protection to the defendant's estate, consisting of her equity of redemption, that she might have the beneficial enjoyment of it during her life, subject only to certain conditions to be by her performed. The primary purpose of the arrangement represented by the agreement was to secure to Mrs. Anderson, for such time, so far as it would have that effect, the estate she then had in the premises, which could not be retained by her without the suspen