This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
We have seen that covenants are occasionally entered into as well by the purchaser with the vendor, as by the vendor with the purchaser; and that such covenants will sometimes, both at Law and in Equity, bind a purchaser who accepts the benefit of a conveyance, though he does not execute it (y) ; but it is conceived that this can only be so, on the principle, either that the performance of the covenant is a condition of the grant, or else that the quantum of the grant is restricted by the covenant (z).
Vendor's remedies at Law and in Equity on purchaser's covenants.
(r) Coventry v. L. B. & 8. C. B. Co., sup. ; Hobbs v. M. B. Co., (1882) 20. Ch. D. 418 ; 51 L. J. Ch. 320 ; and see Re Baroness Bateman and Barker, 1899, 1 Ch. 599 ; 68 L. J. Ch. 380.
(s) Per curiam, in Moody v. Corbett, (1866) L. R. 1 Q. B. 510 ; 35 L. J. Q. B. 131. See, too, Smith v. S.,
(1869) L. R. 3 Ex. 282, 287 ; 38 L. J. Ex. 37.
(t) Hooper v. Bourne, (1877) 3 Q. B. D. 279.
(u) Hobbs v. M. B. Co., (1882) 20 Ch. D. 418; 51 L. J. Ch. 320.
(x) London and Greenwich B. Co. v. Goodchild, (1844) 8 Jur. 455 ; 13 L. J. Ch. 224.
Covenants entered into by vendors and purchasers (a) are, broadly speaking, of one or other of two kinds, viz., affirmative and negative, the distinction carrying with it important consequences. The following remarks, it must be premised, have no application to the law as to covenants between lessor and lessee, which stands in this respect on an altogether special footing both at common law and by statute. Putting this exception aside, it may be broadly stated that the leading incident of the distinction between affirmative and negative covenants is, that it is only in the case of the latter that the burden, - i.e., the liability to be sued, - as distinguished from the benefit, or right to sue, runs with the land. It must further be added that by the common law the burden never runs in any case.
Classification of covenants.
Distinction between affirmative and negative covenants.
First, as to the principle upon which the burden of a negative covenant has been held to run in Equity. The leading cases upon the subject are Tulk v. Moxhay (b), and London and South Western R. Co. v. Gomm (c). The covenant in the former case was affirmative in its terms, but was held to imply a negative; and the doctrine laid down by the Court was explained by Jessel, M. R., in the latter of the two cases referred to, in the following words (d) : - "Where there is a negative covenant, expressed or implied, as, for instance, not to build so as to obstruct a view, or not to use a piece of land otherwise than as a garden, the Court interferes on one or other of the above grounds " (viz., that the doctrine of Talk v. Moxhay is either an extension in Equity of the doctrine of Spencer's case to another line of cases, or else an extension in Equity of the doctrine of negative easements). "This is an equitable doctrine, establishing an exception to the rules of common law which did not treat such a covenant as running with the land, and it does not matter whether it proceeds on analogy to a covenant running with the land, or on analogy to an easement. The purchaser took the estate subject to the equitable burden, with the qualification that, if he acquired the legal estate for value without notice, he was freed from the burden. The qualification, however, did not affect the nature of the burden; the notice was required merely to avoid the effect of the legal estate, and did not create the right, and if the purchaser took only an equitable estate he took subject to the burden, whether he had notice or not." It is here distinctly laid down, - and it is conceived with perfect accuracy, - that the question of notice to the purchaser has nothing whatever to do with the question whether the covenant binds him, except in so far as the absence of notice may enable him to raise the plea of purchaser for valuable consideration without notice.
True principle of negative covenants running in Equity.
(y) Sup. p. 585.
(z) See and consider Aspden v. Seddon, (1876) 1 Ex. D. 496; 46 L. J. Ex. 353.
(a) See generally on the subject the Third Report of Real Property
Commissioners, 1 Dav. 116; and Spencer's case, (1583) 1 Sm. L. C.
(b) (1848) 2 Ph. 774.
(c) (1882) 20 Ch. D. 562 ; 51 L. J. Ch. 530.
(d) lb. 583.
The principle of Tulk v. Moxhay does not extend so as to entitle the personal representative of a vendor who sold all his land in the neighbourhood to the covenantor, to maintain an action for an injunction against the assign of the purchaser for a breach after the vendor's death of a covenant restrictive of the user of the land (e).
The following are instances of negative covenants which Courts of Equity have recognized as running with the land : - Where A. covenanted with his vendor to keep a certain plot of land unbuilt upon, and the land was afterwards sold to B., who had notice of the covenant, the original vendor was held entitled to an injunction restraining B. from violating the covenant (f). So, where a vendor had covenanted with a purchaser not to build on his land remaining unsold, a person claiming through the vendor was held bound by the covenant (g). So, where on a sale of a building estate, there was a general deed of covenant, prohibiting the various purchasers from using, or allowing their lots to be used, for certain purposes, persons claiming through purchasers, who had been parties to this deed, were restrained from using their lots for any of the prohibited purposes (h). Where there was a covenant by purchasers of adjoining lots not to build on the garden spaces which were specified in the general building plan, a person claiming through one of the original covenantors was restrained from throwing out a bow window into the garden at the back of his house (/). And where a brewer sold a piece of freehold land, and the purchasers covenanted that the vendor, his heirs and assigns, should have the exclusive right of supplying beer to any public-house erected, the covenant was held to imply the negative, and an alienee of a purchaser was restrained from supplying his own beer to a public-house which he had erected upon the land (k).