Appeal, No. 254, March T., 1953, from order of Court of Common Pleas of Allegheny County, April T., 1953, No. 356, in case of Samuel Caplan v. City of Pittsburgh. Order affirmed.
Marjorie Hanson Matson, with her Maurice Parker, for appellant.
David Stahl, Assistant City Solicitor, with him Anne X. Alpern, City Solicitor, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This is an action to quiet title to real estate under the provisions of Rule 1061 (b) (2) and (3) of Pennsylvania Rules of Civil Procedure. The alleged cloud relates to a clause in the deed to plaintiff's predecessor in title. The court below overruled preliminary objections to defendant's answer and new matter and dismissed the complaint. This appeal followed.
The City of Pittsburgh, the defendant, acquired title at a tax sale to 819 Fifth Avenue in that city. After the period of redemption had expired the city sold the premises to Solomon Caplan, father of plaintiff, for $4,000. The sale was made pursuant to an agreement between the city and buyer that no damages would be claimed for the future widening of Fifth Avenue. The agreement of sale, containing the clause in question, was approved by the City Council and by the Court of Common Pleas: Act of May 21, 1937, P.L. 787, as amended, 72 PS 5878 (a) et seq. Thereafter the city deeded the premises to Solomon Caplan, who as grantee made the following covenant in the deed: "THE GRANTEE, or his successors in title hereby covenant and agree that if, at any time in the future, the City of Pittsburgh by proper action condemns for street widening purposes for public use the following part of the above described real estate, no claim for damages will be filed or expected by the above grantee or his successors in title." The portion of the real estate affected by the covenant is an area of approximately 21 by 22 feet, and is described in the deed by metes and bounds. The deed was recorded. By devise and various mesne conveyances Samuel Caplan, the plaintiff, is now the owner of such real estate.
Plaintiff maintains that the covenant created an interest in land, which was not then vested, but which was to commence "at any time in the future" when the city might condemn the described portion for street widening purposes, and should an interest be thus created it would be void as a violation of the rule against perpetuities. As an alternate reason for striking down the covenant plaintiff argues that even though it be held that the clause does not create an interest in land, nevertheless the clause is void as a covenant running with the land since such covenants are only enforceable when they create "land interests, easements or servitudes". Plaintiff therefore maintains that the covenant is void and constitutes a cloud upon the title which he seeks to have removed.
Despite the learning, research and effort expended by counsel, it is apparent that the covenant does not create an interest in land effective in futuro. If the grantee by the covenant sought to create an interest which might possibly commence beyond the "period of life or lives in being and twenty-one years, allowing for the period of gestation", unquestionably such interest would be void for remoteness under the rule against perpetuities: Warren's Estate, 320 Pa. 112, 182 A. 396; Harrah Estate, 364 Pa. 451, 72 A.2d 587, and the many cases therein cited. But as pointed out by Gray in The Rule Against Perpetuities, sec. 329, p. 360 (4th Ed. 1942): "The Rule against Perpetuities concerns rights of property only, and does not affect the making of contracts which do not create rights of property. Thus a promise... on a future event is good, although such event may not happen within twenty-one years after lives in being,..." (Italics supplied)
In order for covenants to run with the land ordinarily they must affect the land and are intended to pass with it. ...