between the date of the entry of the judgment nisi and of the judgment final. On these facts it was held that, while the judgment final might be entered nunc pro tunc, the date of its actual entry must be expressed, and that only from such date would the judgment be a lien upon real estate. Justice Depue says: "Judgment entered at this time as of a prior day cannot, under the statutes referred to, have relation as a lien upon the defendant's property prior to the date of actual entry; and, if execution be issued thereon, the command of the writ will be to levy upon the lands, tenements, and hereditaments whereof the defendant was seised at the time of the actual entry of the judgment. The defendant's property is in the hands of the receiver and under the control of the federal court. * * An execution, if issued, would be of no avail against the defendant's property."

It does not expressly appear in the opinion that judgment nisi had been entered, but the minutes of the court show that it was and in the same form in which it was entered here-the entry was "ordered that judgment be and hereby is entered * nisi.' The aim of the experienced practitioners who made the application in that case was to secure for their client a lien upon the lands in the hands of the receiver which should antedate the receivership. The Supreme Court apparently refused to give it to them. If they had it already in the judgment nisi, why should they have applied, and why should the Supreme Court have taken pains to say that judgment final entered nunc pro tunc as of the date of the judgment nisi would only bind lands from the date of its actual entry? One would have thought that the court would have said, if it had supposed that the judgment nisi gave a lien: "It makes no difference when the lien of the judgment final first attaches because you have a lien already." As our present corporation act expressly vests the legal title to all the property of the insolvent corporation in the receiver immediately upon his appointment, there can be no lien, not even an apparent lien, unless it attaches prior to that time.

It seems to me that in view of this situation it would be unbecoming in an equity judge to express an opinion upon a point of practice so peculiarly within the province of the Supreme Court and of such great practical importance. Fortunately the Chancellor has power to refer the question to the Supreme Court under section 79 of the chancery act (P. L. 1902, p. 537), and this is a case in which I think it is more than proper to exercise it. An order will be made referring the question of the effect of the judgment nisi to that tribunal.

The order advised by Vice Chancellor Stevens

is as follows:

"The Chancellor sends the following questions or matter of law to the Supreme Court for its opinion to be certified thereon; that is to say: "(1) Is the above entry on the minutes of the Supreme Court dated June 3, 1913, a judgment on which execution may issue, or is it a rule for judgment nisi causa on which no execution can issue?

"(2) Is such entry, standing alone, a judgment that affected or bound the aforesaid lands from the time of its actual entry on the minutes of the Supreme Court within the meaning of section 2 of the act concerning judgments?

"(3) Did the entry of judgment final on March 5, 1914, have the effect of so altering or qualifying the effect of the entry or judgment nisi of June 3, 1913, that the judgment in the action can only operate as a lien upon real estate from the date of its actual entry on March 5, 1914?

"(4) Is there any judgment in said action which now relates back, so that it binds the said lands of the Russell-Robinson Company, title to which passed by operation of law (sec

tion 68 of corporation act) to the receiver on June 10, 1913, or the money into which they have been converted?"

And it is further ordered that upon the return of such certificate the respective parties may apply for such further order or adjudication as may be proper.

Argued June term, 1914, before GUMMERE, C. J., and GARRISON and MINTURN, JJ.

Lum, Tamblyn & Colyer, of Newark, and Gilbert Collins, of Jersey City, for receiver. Kalisch & Kalisch, of Newark, for claimant.

GARRISON, J.

[1-3] The judgment en. tered on June 3, 1913, is one upon which execution may issue. This was expressly decided in Erie Railway Co. v. Ackerson, 33 N. J. Law, page 33 (1868). This decision has not been overruled.

[4] The case of McNamara v. N. Y., L. E. & W. R. R. Co., 56 N. J. Law, 56, 28 Atl. 313 (1893), dealt not with the effect of a judg ment nisi entered prior to the discharge of an outstanding rule to show cause, but solely with the effect of a judgment final entered after such a rule had been discharged, holding with respect to such final judgment that, although entered nune pro tunc as of the time of the filing of the postea, it would be a lien on lands only from the date of its actual entry.

There is no conflict between the rule stated

by Judge Elmer in the earlier case and that stated by Judge Depue in the later one; they are to be read together. The practice thus laid down is that upon filing the postea, a judgment nisi may be entered upon which, notwithstanding a rule to show cause has been allowed, an execution may issue, which will, however, be rendered void if such rule is made absolute, but which, if such rule is discharged and judgment final is entered as of the date of such judgment nisi, remains in full force and effect as to lands of which the judgment debtor was seised at the time of the actual entry of such judgment nisi; but this result cannot be obtained by the mere entry of judgment final nunc pro tune as of the time of the filing of the postea. This last clause is the contribution of the McNamara Case, and is all that that case decided upon this point, as appears by the opinion of Mr. Justice Depue, who cited the earlier case of Erie R. R. Co. v. Ackerson without a suggestion that it was disapproved, still less that it was repudiated and overruled. To overrule a practice decision of 25 years' standing in any such fashion as this would be at total variance with the judicial habit of this court, and pre-eminently so in the case of Mr. Justice Depue, whose punctiliousness as a practitioner was only equaled by his solicitude for stare decisis.

The fact now shown to us that a judgment nisi had been entered in the McNamara Case does not alter the fact that such judgment was not placed before the court for

Story's Eq.

[3] The next ground is that the covenant is personal to, and enforceable only by, the defendant's grantor, the Ocean City Gardens Company. The principle that uniform re

"No building of any description whatever and no porch, fence or other structure of any kind, shall at any time be erected on or over the lots hereby conveyed within twelve feet of the lot line facing the street, or within four feet of the side lines of said lot (excepting where a party may own two or more contiguous lots, in which case a dwelling or hotel may be erected on any part of the lot or lots the owner thereof may desire without regard to the intervening line or lines; provided the same is not built within four feet of the outside lines of said contiguous lots, nor within twelve feet of the lines thereof facing the street).”

There are others which have no bearing on this dispute. The four complainants own, separately, lots in block 9 and 10, fronting on Bay road. Block No. 9 is bound by Bay road and Simpson road, Battersea road and North street, parallel streets, respectively. The defendant owns six adjacent lots in block 9; three front on the easterly side of Bay road, and three on the westerly side of Simpson road, abutting in the rear, and are numbered on the map as 901, 902, and 903, 942, 943, and 944. Lots 901 and 944 are bounded on the southerly side of North street. The complainants and defendant hold immediately from the Gardens Company, and all of the deeds contain the restrictions above quoted, except that buildings, etc., on the lots fronting on the westerly side of Bay road are restricted to 20 instead of 12 feet from the street. On lot 903, facing Bay road, and lot 942, facing Simpson road, being the lots furthest from North street, the defendant erected two dwelling houses, in compliance with the restrictions. The remaining four lots he divided transversely into six lots, and on two built houses, facing North street four feet from the street line, but more than 12 feet from either Bay or Simpson roads, which constitute the breach complained of. A demurrer ore tenus in bar of a recovery was interposed, and three grounds were assigned.

[1, 2] The first is that there is no such unity of interests as would justify a joint action by separate lot owners. In pointing out the instability of this objection, it need only be suggested that the right to enforce the covenant inures to each of the complainants as members of a class who may join in seeking redress of a wrong which is common to them all. Marselis et al. v. Morris Canal & B. Co., 1 N. J. Eq. (Saxt. ch.) 31. Besides, an objection for misjoinder of parties, first made on final hearing, will be regarded as immaterial, where it appears that no injustice will be done the parties by the decree.

as a part of a community scheme, are made for the benefit of all who, as lot owners, participate in the project has been so firmly established by numerous authorities, both in this country and England, that in this day it De Gray is not open to serious discussion. v. Monmouth Beach Club House Co., 50 N. J. Eq. (5 Dick.) 329, 24 Atl. 388; Morrow v. Hasselman, 69 N. J. Eq. (3 Robb.) 612, 61 Atl. 369; Barton v. Slifer, 72 N. J. Eq. (2 Buch.) 812, 66 Atl. 899. And indeed, the defendant does not question it, but he urges that the rule is not applicable because of a subjoined limitation in all of the deeds, which he argues vests all interest in the covenants absolutely in the grantor. It reads:

"The description by metes and bounds herein set forth shall be conclusive upon the parties, their heirs, successors and assigns, and shall never be construed so as to enlarge said description or embrace land or rights in land not within said metes and bounds.'

It does not so impress me. The stipulation simply defines the exclusive construction to be given to the description of the land as contained in the deed and leaves unimpaired the rights which flow to other lot owners from the covenant which, as Chief Justice Beasley said in Brewer v. Marshall, 19 N. J. Eq. (4 C. E. Green) 537, 97 Am. Dec. 679, are enforced "upon the principle of preventing a party having knowledge of the just rights of another, from defeating such rights, and not upon the idea that the engagements enforced created easements, or are of a nature to run with the land." Moreover, the defendant fails to accord the proper significance to be given to a further covenant, which reads:

[defendant] for himself, his heirs, executors and "And the said party of the second part hereto administrators and assigns, doth hereby covenant, promise and agree to and with the said party of the first part hereto [common grantor] its successors and assigns, not to violate nor fail to comply with any or all of the above-mentioned conditions, restrictions, regulations or provisions, but faithfully to keep and perform the same."

This embraces the complainants. They, and all other purchasers of lots, are assigns, in the true sense of the word. No one, other than the grantees of the Gardens Company, come within that category. So, we have in expressed terms the defendant's agreement that his undertakings should vest beneficially in the complainants.

[4] The remaining point is that the complainants are not damaged. In support of this, it is contended that facing the defendant's houses on, and erecting them four feet from, North street obstructs neither the light, air nor view to the complainant's premises

which are on Bay road, "around the corner" from the defendant's houses. The answer to this is that the interdependent covenant of the defendant casts an equitable burden on his land, or raises an equity, in favor of each of the owners of lots on the tract, and this, no matter how remote may be his location. And in this instance there is a very cogent reason for the application of this doctrine. Ocean City Gardens is essentially residential, and broad avenues, from house line to house line, inviting, if not insuring, floral decorations in front of homes, are obviously important factors in its exploitation, the advantage of which redounds to the whole community, especially in the enhancement of the value of lands within its limits. Can it then be said that a lot owner, however distinctly situate, is not materially injured by an infraction of this feature of the general scheme? Equity courts will not refuse relief in cases of this kind unless it clearly appears that the violation complained of will be so harmless that the maxim de minimis applies. Kirkpatrick v. Peshine, 24 N. J. Eq. (9 C. E. Green) 206; Morrow v. Hasselman, supra; Lignot v. Jaekle, 72 N. J. Eq. (2 Buch.) 233, 65 Atl. 221.

We will therefore consider whether the erection of the defendant's houses four feet from North street is a violation of that portion of the covenant which provides that no building shall be erected within 12 feet "of the lot line facing the street." The side lines of the defendant's lots, as shown on the map, are undoubtedly those which run at right angles to Bay road and Simpson road and parallel with North street, and, while the exterior longitudinal line of lots 901 and 944, bounded by North street, is a side line of these two lots, it is also "the lot line facing the street" and within the prohibition of the covenant forbidding buildings within 12 feet. The primary object to the parties, to be inferred from the covenant, as has already been observed, was to keep all buildings and structures that distance away from the highway, and the restriction in that respect in no wise conflicts with nor is it modified or qualified by the provision that buildings should not be erected within four feet of the side lines, because it clearly appears that the purpose of the side line restriction was solely for the benefit of adjoining lot owners. This was the view of Vice Chancellor Reed in the case of Waters v. Collins, 70 Atl. 984 (Docket 19, p. 426), referred to by Vice Chancellor Bergen in Chelsea Land & Improvement Co. v. Adams, 71 N. J. Eq. (1 Buch.) 771, 66 Atl. 180, 14 Ann. Cas. 758, in enforcing a covenant "that no building shall at any time be erected within twenty feet of the front property line of any street or avenue," which, as will be noted, was couched in language much less definite in application than the one now considered. And this, after reflection, seems to have been the construction placed upon his

The

the bill was filed he moved his houses back from North street a distance of 12 feet, and on the argument claimed immunity from further prosecution. With this altered situation the complainants are not content. They con-. tend that the general scheme, deducible from the covenants in the deeds and the plan to which the deeds refer, contemplates that buildings should be erected with the façade exposed to the street upon which the lot fronts. All that need be said on this score is that I find in neither one anything to this effect binding upon lot owners. The only limitations in the deeds as to buildings relate to their location and a minimum cost. map, it is true, shows front and side lines of lots, but nothing to indicate that purchasers are required to erect their buildings fronting on the street. The division lines of the lots, as laid down on the plan, point to no such exactions. Rather, the impression gathered from the map is that it was intended as an illustration of the scheme of improvement and for the more convenient identification of the location of the lots by numbers. The side line restriction in the deeds is, as I have said, for the benefit of adjoining owners, who alone have the right to enforce, or relieve from, its observance. This is manifested by the exception contained in the covenant, which provides that in case of the ownership of two or more contiguous lots by one person, the intervening side lines may be disregarded and a building erected over them, from which follows that if one person purchased all of the 44 lots in block 9, and erected a hotel covering the block, he could face it in a court, with rears to the four streets, or face it upon any one or more streets with the back to the remaining streets, without breaking his covenant, provided he remained beyond the inhibited 12 feet. And logically, if he owns but one lot, he may build the style of house or as many houses as his land will permit, facing them to suit his convenience or fancy, so long as they are of the minimum cost and not within the restricted area.

[5] The utmost that can be said in favor of the complainants' contention on this phase of the case is that their right to enforce the covenant is doubtful, which leads to a denial of the relief they pray. Howland v. Andrus, 81 N. J. Eq. (11 Buch.) 175, 86 Atl. 391. A decree may be entered granting an injunction restraining the defendant from building on his land, within 12 feet of North street, but issuance of the writ will be withheld until the further order of the court, motion for which may be made whenever the exigency of the case requires. This course is taken because of the insistence of the defendant at the hearing that he has the right to build on each of his six lots now fronting on North street, to within four feet of that street, notwithstanding that he forestalled the complainants by removing the two already built to their present location. The