It was formerly bounded on the northwesterly side for a few hundred feet on its South street end by the lands of the female seminary (owned by Miss Dana), and in the rear of the seminary lot it is bounded on that northwesterly side by land of the defendant Lidgerwood. On the southwest end it is bounded by lands of Mr. Foote. On the southeast side by other parties. Its only connection with any highway is its junction with South street.

In the year 1897 the Headleys caused about two-thirds of this strip next to South street to be laid out and plotted on a map into building sites, and, with a view of their sale, caused a road to be laid out on the map from South street along and near to the southeasterly side of the tract, but not touching the same, and ending at the bottom of a steep bluff on their own land.

The reason for their stopping at this point with their scheme was that the remainder of the land, about six hundred feet in length of the strip, was low and flat and unfit for building purposes, except perhaps of a very cheap class of dwellings.

Over the part of the land here in question the lots were laid out about one hundred and sixty-seven feet in depth and seventyfive feet in front.

At the time of the making of the contract here in question they had all been sold and built upon from South street down the new street, except ten at the extreme end.

Of these, the three farthest southwest were, by reason of the configuration of the land, unavailable and unsalable as separate

lots.

Of those that had been sold and conveyed the one farthest from South street was owned, built upon and occupied by Mrs. Romaine, whose husband, William J. Romaine, was a real estate agent, and had the lots in his hands for sale on behalf of the Headleys, who lived in a suburb of Philadelphia.

The Headleys had blue prints of their map made and circulated for use in selling, but they had never filed it in any public office.

This blue-print map did not include the whole tract, but only so much as covered the road and lots facing on it.

As before remarked, the road (called Headley road) is laid out wholly on the lands of the Headleys. It kept some fourteen feet away from the southeasterly side of the tract, and ended, so to speak, in the midst of it.

The Headleys worked and graded on the ground about one thousand four hundred feet in length of this road, stopping at the top of the bluff, from whence the land descended rather abruptly and irregularly to the lowland before mentioned, leaving about two hundred and fifty feet of the lower end of the paper road untouched and unaltered and covered with a thick growth of small trees and brush.

No part of the road was ever accepted or worked by the municipal authorities, and it was never used by the public beyond the residence, of Mrs. Romaine.

Over that part of the road which is here called in question there was growing brush and small saplings.

The Headleys, in making conveyance of lots, mentioned the Headley road, and inserted, in several instances, a limitation. against building nearer than a certain number of feet from the side of the road. These allusions to the road will be referred to farther on. No mention was made of the map.

The complainant in the latter part of the year 1902 opened negotiations with Mr. Romaine for the purchase of the southwest end of the whole tract, including about four and one-half of the most southwesterly of the lots laid out on the map, of which about seventy-five or one hundred feet (defendant's surveyor says eighty-four feet) faced on the road as actually worked on the ground. The negotiation included all of the road as laid out on the map within those lines. The quantity in the tract so negotiated for was five acres, and its northeasterly end was roughly marked on the ground by a stake set up, and in due course it was surveyed and a description thereof made. The beginning point was four hundred feet southwest from Mrs. Romaine's lot.

This lot would give the complainant a large building site on comparatively high ground with an outlet to South street over Headley road.

As I interpret the evidence the parties came to a substantial

3 Robbins.

Stevens v. Headley.

agreement on the 21st of January, 1903.

This is fixed by a

letter from Mr. Romaine to complainant of that date. But owing to the necessity of measurements on the ground and other details, the agreement (set out in full in the bill) was not finally settled and executed until April 7th. Judge Vreeland, who was counsel for the Headleys, prepared an agreement in March and sent it to them, and it was by them recast and executed on that day, April 7th, and forwarded to Judge Vreeland.

This sale left still belonging to the Headleys four hundred feet of frontage on Headley road, or a little over five lots, seventy-five feet front each, between the complainant's lot and the Romaine lot. Hence the contract contained a restriction against the complainant building on his lot nearer than twentyfive feet to the northeasterly front of it and against the Headleys building on their remaining lots nearer than forty feet to the Headley road. It also provided for a right of way from the lot to be conveyed to South street by the Headley road, which is described by metes and bounds.

It also contained the following significant clause:

"And the said Wm. T. Headley and Helen T. Headley the younger hereby further agree that they will procure the execution and delivery to them by all the owners abutting on what is known as the 'Headley road' of a release of any and all right, title and interest of such abutting owners (if any) of, in and to any right of way or easement over the lot hereby agreed to be conveyed, or any part thereof."

The Headleys anticipated and encountered little difficulty in procuring these releases, because the parties interested would at once infer, and could be assured that the complainant purchased for the purpose of erecting a dwelling for himself, which would result in insuring the permanent character of the neighborhood, and in cutting off all danger of the low flat land on the southwest end of the tract being devoted to the erection of cheap cottages for laborers, whose existence along the possible extension of the Headley road would, to say the least, not increase the desirability as residences of the high-class dwellings already erected on that road.

Such a use of that low land was contemplated by the elder Mrs. Headley, and was an obstacle in the way of her joining in the conveyance to the complainant, and this was known to Mr. J. H. Lidgerwood, the brother and agent of the defendant W. V. V. Lidgerwood, as early as February 27th, 1903, as appears by his letter of that date to his brother, the defendant, who was a resident of London.

In the meantime the defendant Lidgerwood, who, as we have seen, owns the land on the northwest side of the Headley tract, commencing in the rear of the seminary lot, instructed his brother, John H. Lidgerwood, a New York business man, residing in Morristown, to open negotiations for the purchase of the two lots (Nos. 10 and 11) next adjoining Mrs. Romaine's.

His object in doing this, as declared in his testimony (taken by commission) and explained at the hearing by a map, was to obtain access from his land to South street by way of the Headley road. Besides, his land immediately adjoining those two lots is high, and would make a valuable addition to them, and the union of his land and the two lots (10 and 11) would greatly increase the value of each, especially the high land of Lidgerwood, which is small in extent and area and so situate as to be of little value by itself.

Mr. John H. Lidgerwood employed for this purpose the defendant Edward K. Mills, who opened negotiations at once with Mr. Romaine. Throughout their negotiations they used a blue-print copy of the original map and also a vellum copy of it produced by Mr. Mills, which showed a slight variation in the lines of the lots as laid on the original map, which had to be observed in locating the two lots for which Mr. Mills was negotiating.

The only obstruction to an immediate sale to Lidgerwood was the price demanded by the Headleys, viz., $9,000 for the two lots. Mr. Mills offered $6,000.

He negotiated entirely in his own name.

The first interview between Mr. Mills and Mr. Romaine, the date of which is recollected by Mills, was on the 21st of February, 1903. On that occasion Mills swears he first heard of the Stevens' purchase verbally concluded a month before. He