tioners' counsel, the court of errors at all qualified or overruled the rule of these previous cases. No such qualification was declared, and Rowan v. Congdon was in part based on proof of a misapprehension existing at the time of the sale, by reason of which a purchaser who was willing to give 150 per cent. advance at that time was not then procured. It is also the law of this court that for the same reason, and upon the same principles, the rule is to be applied to private sales made by guardians and others under authority of the court of chancery. Leary's Case, 50 N. J. Eq. 383, 25 Atl. 197. The general settled rule therefore is that where the sale is made for a fair price and in good faith, and there is no irregularity, fraud, mistake, or legal surprise, with which the purchaser is or ought to be chargeable, the subsequent offer by another bidder of a higher price is not of itself sufficient reason for refusing confirmation of a sale or of reopening the confirmation. Nearly all public and private sales by officers of the court now require confirmation, and to allow such sales to be opened by the mere increase of the bid at the time fixed for confirmation would practically result in the subversion of the entire system of sale by officers, either public or private, and would make their first contract of sale merely the starting point for bids on the property, instead of a bona fide, genuine sale. In the present case the increase offered was $53,000 in cash payment (less than 10 per cent.), the other terms of the contract not being proposed to be changed. The fact that the power company is now said to be ready to pay the entire amount in cash cannot be considered as affecting the purchasers' right, either under the contract or the confirmation. No such offer was made by it on May 14, 1901, and at that time no objection was made by any stockholder to the amount to be secured by mortgage. So far as the rights of the purchasers to the protection of the order confirming the sale can be affected by any offer of another bidder, it must be an offer previous to or at the time of confirmation. For manifestly a different or more advantageous offer, made more than a month after the confirmation, and made after the opening and operation of the plant purchased, and after the purchasers' rights under the contract have by its terms become vested, is practically an offer to buy the purchasers' property with the value, if any, since given to it by their purchase, and to buy it for the benefit of the new bidder and the stockholders. There were special reasons in this case why the mere increase of the bid by less than 10 per cent. should not have deprived the purchasers of the benefit of the contract.

It appears by the record in the case-the bill filed by Jacob S. Rogers and others, the answer filed by the petitioner Longbottom and others, by the circular letter of the receivers, inviting bids, by the negotiations for

sale and the contract finally made-that the resumption of the business formerly carried on by the company on an extensive scale, and its continued operation in the city of Paterson, was desired by all these parties and by the city of Paterson, and by transportation companies interested in the continuance of the business. The receivers, availing themselves of this condition of affairs, were enabled to offer to purchasers certain privileges or advantages from the city and these companies, connected with the operation of the plant. These privileges tended to attract purchasers, and were substantial benefits secured to the stockholders in the disposition of the property. Smith & Holran, the purchasers in this case, made the granting of these privileges a condition of their bid, and, on their 'part, in consideration of making these conditions, and for the purpose of enabling the receivers, or any one else who should be delegated, to undertake the work of obtaining them from the parties interested, agreed, as appears by their written proposals, that the new company to be organized by them would, as quickly as possible, open and operate the works, and keep them located in the city of Paterson. The contract finally made contained provisions for the conveyance or assurance of these privileges or rights on behalf of the city and the companies, and contained also a provision (sixth) that the new company should, as promptly as may be, open and operate the plant in the city of Paterson. The final deposit of the amount of the cash payment ($102,000) was by the contract (article 3) to be deposited by the purchasers when the receivers had obtained (among other things) the conveyances and assurances of the privileges and rights from these outside parties. The whole sum has, as appears by the answers and affidavits, been deposited "as required by the contract"; and, as I understand the contract and the affidavits of the purchasers and the receivers, the only thing remaining to be executed under the contract, before the conveyance is made to the new company, is the payment of $250,000 in cash, as its working capital, which is, by the contract, to be actually paid in before the transfer of title to the new company. This capital is subscribed, and the purchasers say they are able to complete the contract, and the receivers say the purchasers I will be able to complete it. Whether the power company, on its part, would have been willing originally, and before the Smith & Holran contract, to continue the operation of the plant in Paterson, is open to some question, in view of the affidavit of Mr. Pennington, counsel for the receivers, that in his conversation with a representative of the power company, after the execution of the Smith & Holran contract, he (Mr. Pennington) stated to him that it would be impossible to obtain the privileges from the city of Paterson for the power company, inasmuch as the representative of this company had stated that, in

case that company became the purchaser, it would not undertake to run the works permanently in Paterson, or at least that part of Paterson. The case shows, I think, that the stockholders in this case, by reason of these special privileges from outside parties secured by or with the assistance of the receivers, on the faith of the special assurances of Smith & Holran, by their letter and contract, have obtained by the negotiation of this special and complicated contract an advantage which the stockholders could not otherwise have secured, and have obtained a price which, as appears by the affidavits, is about $50,000 less than the price fixed by Rogers himself for a sale, before it went into the hands of the receivers, and is more than three times as large as the proposition or suggestion previously submitted verbally to the receivers by the power company, which proposition was not apparently based on the continuance of the operation of the plant. In view of these special circumstances relating to the negotiation and completion of the contract, the purchasers had an additional claim to the benefit of their contract, and neither they nor the receivers should be deprived of it by the mere increase of the bid made by the power company at the time of the presentment of the contract for confirmation. Upon the case as now presented, and treating it in the most favorable light for petitioner, viz. as if the sole question were whether the contract should be approved notwithstanding the offer made in open court by the power company, I conclude that the contract was one which should have been approved, and that from that point of view the application to set aside the order confirming the sale should be denied. But the petitioner and the purchasers do not now stand in the same position as at the time of the order confirming the sale. Neither the petitioner nor any other stockholder has appealed from the order. In the meantime the purchasers have taken possession of the plant pursuant to the express provision of the contract, and have commenced its operation by the new company on a scale so extensive that the sale could not be set aside without an apparently enormous loss and injury to them and to the new company, to say nothing of the interference with the rights which may have since been secured by the new company from the city of Paterson and the transportation companies on the faith of the confirmation of the contract of sale, and in order to carry out its provisions. The change in the situation of the purchasers and of the receivers since the confirmation, and the delay of the petitioner in making his application to set aside the order, are sufficient reasons for refusing to disturb the order. It is principally because of the purchasers' rights under the contract and its confirmation, and because they are not in any way connected with any of the circumstances relied on in the petition as a reason for reopening the sale, that I de

cline to disturb it; but it is only just and proper to add that, in my judgment, the case shows that the receivers are not chargeable with any improper or inequitable dealing towards the power company in reference to the presentation of its bid after the execution of the Smith & Holran contract. Under the entire facts and circumstances of the case, as now disclosed, they were, in my opinion, justified at the time of making the contract in believing that the power company did not intend to make a bid to them for the property, and the charge that the subsequent increased bid of the power company was induced by them on the assurance that it would be accepted if made is not substantiated. As to the claim that the position of Mr. Rogers, the principal stockholder, was not fairly represented to the court by his counsel, who was also counsel for the receivers, this, even if true, is manifestly a matter which could not affect the purchasers, and which could not in any event, and if Rogers himself now complained of it, operate further than to induce the court now to consider whether his objection to the sale at the time would have been sufficient reason to refuse to affirm the contract. As I consider on the whole case that the contract was one which should have been approved, and as it now appears (1) that the contract was made after consultation with Mr. Rogers, and with his express approval; (2) that he has not appealed from the order, nor applied to set it aside; and (3) that he has encouraged the purchasers in the carrying out of the contract since its execution, and has accepted a lease from the new company for a portion of the property to be conveyed to it under the contract; and (4) that he does not in his own behalf make any complaint of the action of his counsel,-his present objection to the sale presented by way of affidavit to the petition of Longbottom cannot be considered as presenting any basis for action of the court to revoke the order. The application to set aside the order confirming the sale must therefore be denied, and the contract as confirmed must stand, to be enforced both by the receivers and the purchasers.

3. In an action to enjoin the building of a hotel on certain lots as being in violation of restriction in a deed to other lots by the same grantor it appeared that such latter deed was made subsequent to that of plaintiff, that the plot of the land itself contained no restrictions as to the character of the buildings, and that the method adopted in selling was not uniform in the matter of restrictions. Many years before defendant bought the land in question, that land originally owned by the common grantor was studded with hotels, while that of defendant had been occupied by a boarding school, used subsequently as a hotel; all without objection from any one. Held, that no right to enforce the restriction was conferred on plaintiff, since there was no general scheme or understanding that the restriction as to hotels was to be common to all grantees, and was to be inserted in all deeds, or that each purchaser was to be burdened with his own and benefited by the other covenants.

4. The burden of showing that a covenant in a deed as to certain restrictions was made for the benefit of the vendor's remaining lands, and not merely for that of the vendor personally, is on the purchaser of such remaining lands.

5. The purpose of a grantor, with whom a restrictive covenant is made, may be evidenced not only by the language of the covenant itself, but also by other language in the deed containing the covenant.

6. In an action to enforce a covenant in a deed restricting the building of hotels, it was shown that hotels were built on lots adjoining defendant, which had been a part of the land of the common grantor, and that the presence of such hotels had been acquiesced in for sev eral years. One of the owners in defendant's chain of title testified that he told plaintiff that he intended building a hotel, and that the latter made no objection. Subsequently they talked over the plans together, and plaintiff said the lot was a good site for a hotel. They spoke of the hotel restriction, plaintiff then referring the witness to his lawyer. Later, on seeing the lawyer, the latter asked why witness had not gone ahead with the building, as plaintiff expected it to be well under way at that time; the gist of their conversation then being as to a restriction as to the building line. Witness as well as defendant spent much money, and went ahead with the hotel's construction. Held, that plaintiff, having acquiesced in the violation of the restriction and permitted the expenditure of money, could not enforce the restriction by injunction.

Bill by Frederick Hemsley against the Marlborough Hotel Company for an injunction. Dismissed.

The complainant and the defendants owned lots in Atlantic City, the title to which came to them from common grantors. The complainant seeks to enjoin the defendants from an alleged violation of a covenant contained in deeds in the chain of title to the defendants, which covenant is in the following words: "Also that no building whatever shall ever be erected upon the above-described lot or piece of ground except as and for use as a dwelling house." There follows a specification of special structures the erection of which are forbidden. This covenant, so far as it relates to matters involved in the present case, will be styled the "dwelling covenant." The complainant charges, and it is not denied, that the defendants are about to erect upon their plot a large boarding house or hotel. The manner in which

The

The original lot, bounded by Pacifio, Indiana, and Ohio avenues and the ocean, was in 1879 owned by Hamilton Disston and George F. Lee. On May 28, 1879, Lee and Disston made a deed of dedication of a street 60 feet in width, marked "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. 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 defendants are Nos. 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 28, 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 11, 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 cove

nant already set out. It also contained a covenant against the sale of liquor. On May 18. 1880, Mary Disston conveyed lots Nos. 2 and 3 to Albert H. Disston, and he, on March 4, 1881, conveyed them to one Corinth, who again, on October 20, 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 28, 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 1, 1895, the trustees under her will, in conjunction with her husband, made a deed of these lots to the complainant, Frederick Hemsley. The defendants trace their title for lots Nos. 15 and 16 through a deed from Lee and Disston to Amelia Sparks, dated September 10, 1879. For lots Nos. 17, 18, 19, and 20 the title is traced through deed from Lee and Disston to Mary Disston, made May 10, 1880, and for lot No. 14 through a deed made by Lee and Disston on February 10, 1880, to Hinman Lander Hall. Each of these deeds contained a dwelling house restriction in the form already set out.

Samuel H. Grey, for complainant. C. L. Cole, D. J. Pancoast, and Richard V. Lindabury, for defendant.

REED, V. C. (after stating the facts). The defendants, in the first place, deny 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 is manifested by the designated structures which are specially forbidden, 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 are the complainant's rights 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, 19 N. J. Eq. 537, 97 Am. Dec. 679), or upon the portion sold (Coudert v. Sayre, 46 N. J. Eq. 386, 19 Atl. 190), 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 defendants' predecessor in title made his or her covenant? and, sec

ondly, 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 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 28, 1879. The first deed in defendants' chain of title was to Amelia Sparks dated September 10, 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 11, 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 defendants' 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, and 10 were afterwards sold with factory restrictions only. Long before the present defendants bought the site upon which they proposed to erect a boarding house or hotel, the neighborhood 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 defendants it appears that Lewis T. Bryant, who sold to John J. White, who sold to the defendants, 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 31, 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 any one. 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 dwellinghouse 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. House Co., 50 N. J. Eq. 329-340, 24 Atl. 388, 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 the complainant, and some of the land owned by the defendants, upon which a part of its structure is to be built. Mary Disston's title to lots Nos. 1, 2, and 3 was, as already stated, conveyed by her testamentary trustees to the complainant in 1895. On October 15, 1883, she being the then owner of lots Nos. 17 to 24, inclusive, upon which the building of the Female Academy of the Sacred Heart was afterwards placed, sold those lots to the academy. Her deed contained a covenant against the erection of buildings except for dwelling houses, similar to the covenant already displayed. If this covenant was executed by Mary Disston for the benefit of lots Nos. 1, 2, and 3, then the complainant, standing in the attitude of a subsequent purchaser of those lots, has the right to enforce the covenant, unless precluded by some equitable consideration. The burden is upon the complainant to prove that the covenant was made for the benefit of those lots, and not merely for the benefit of Mary Disston. Substantially in the language of Lord Justice Bramhall employed in the case of Master v. Hansard, 4 Ch. Div. 724, quoted by Vice 50 A.-2

Chancellor Hall in Renals v. Cowlishaw, 9 Ch. Div. 125, the covenant must have been put in for the benefit of the purchasers of the remaining part of the land of Mary Disston, and not to enable her to make the most of her remaining property.

The purpose of a grantor with whom a restrictive covenant is made can, of course, be evidenced by the language of the covenant itself, or by other language in the deed which contains the covenant. It was so stated in the deed under consideration in the case of Rogers v. Hosegood [1900] 2 Ch. 388. Upon this ground the English appellate division in that case enforced a covenant entered into by a preceding grantee at the suit of a subsequent purchaser of the remaining land of a common grantor. So in the case of Coudert v. Sayre, 46 N. J. Eq. 386, 19 Atl. 190, a grantee, in addition to the restrictive covenant, further covenanted that the restrictive covenant should be enforceable not only by the grantor, his legal representatives and assigns, but also by the owners of any of certain other designated properties of the grantor. This restrictive covenant was held to be valid, and a subsequent grantee of a portion of the specified land was held to be entitled to the benefit of it. Upon inspection of the deed made by Mary Disston to the Academy of the Sacred Heart, nothing appears to indicate that the dwelling-house restriction was for the benefit of any one other than the grantor. Nor is there any provision for the insertion of similar covenants in other deeds to be made by the grantors. When we look for any other feature of the transaction which would disclose an intention that the covenant should attach to, and be for the benefit of, the other land of the grantor, there is entire absence of any evidence. The absence of a general scheme in the sales made by Mary Disston is even more pronounced than in the sales made by Lee and Disston. In fact, when she made the deed to the academy, she had already sold portions of lots 4, 5, and 6 without any dwelling restrictions. The complainant's case rests upon the one fact that at the time Mary Disston conveyed to the academy she was the owner of land separate from the land so conveyed. In the absence of any words in the deed to that effect, or any reference to a plan showing a general scheme for improvement, and that the grantee took the land with notice, express or implied, that the restriction was intended for the benefit of the remaining land, no right to sue passed to the subsequent grantee. Skinner v. Shepard, 130 Mass. 180. But, even if such a scheme had appeared either in the sales by Lee and Disston or by Mary Disston, the question would remain whether the plaintiff is not precluded from now enforcing against the defendants the restriction against the erection of buildings to be used as boarding houses. As was pointed out by Vice Chancellor Emery in Trout v. Lucas, 54 N. J. Eq.