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.
Instances of negative covenants running in Equity.
(e) Formby v. Barker, 1903, 2 Ch. 539 ; 72 L. J. Ch. 716.
The validity of these negative covenants, which is well established, is not affected by the rule against perpetuities (/), to which, they form an exception, nor by considerations as to their being in unreasonable restraint of trade, since they are always limited in space (m).
Validity of negative covenants not affected by rule against perpetuities or restraint of trade. Burden of affirmative covenant never runs.
(f) Tulk v. Moxhay, (1848) 2 Ph. 774 ; cf. Formby v. Barker, sup. ; and see Bristow v. Wood, (1844) 1 Coll. 480 (more fully, 14 L. J. Ch. 50), where the existence of a covenant by the vendor not to build houses of less than a certain value was held to be a good ground for relieving the proposed purchaser from his contract.
(g) Mann v. Stephens, (1846) 15 Si. 377 ; Coles v. Sims, (1854) 5 D. M. & G. 1 ; 23 L. J. Ch. 258 ; and see Patching v. Dubbins, (1853) Kay, 1 ; 23 L. J. Ch. 45, where the principle was affirmed.
(h) Whatman v. Gibson, (1838) 9 Si. 196.
(i) Western v. Macdermott, (18G6)2 Ch. 72 ; 36 L. J. Ch. 76 ; Lord Manners v. Johnson, (1875) 1 Ch. D. 673 ; 45 L. J. Ch. 404 ; cf. Sheppard v. Gilmore, (1887) 57 L. J. Ch. 6.
(k) Catt v. Tourle, (1869) 4 Ch. 654 ; see Luker v. Dennis, (1877) 7 Ch. D. 227 ; 47 L. J. Ch. 174 ; the case of a lease. The same principle applies to leasehold interests ; Parker v. Whyte, (1863) 1 II. & M. 167; Hemingway v. Fernandas, (1842) 13 Si. 228; 12 L. J. N. S. Ch. 130; Pobson v. Flight, (1865) 4 D. J. & S. 608; Wilson v. Hart, (1860) 1 Ch. 463 ; 35 L. J. Ch. 569 ; Clements v. Welles, (1865) 1 Eq. 200 ; 35 L. J. Ch. 265 ; Feilden v. Slater, (1869) 7 Eq. 523 ; 38 L. J. Ch. 379 ; Fleetwood v. Hull, (1889) 23 Q. B. D. 35 ; 58 L. J. Q. B. 341 ; Stuart v. Diplock , (1889) 43 Ch. D. 343; 59 L. J. Ch, 142; Clegg v. Hands, (1890) 44 Ch. D. 503 ; 59 L. J. Ch. 477 ; White v. Southend Hotel Co., 1897, 1 Ch. 767; 66 L. J. Ch. 387.
It may now be taken as settled law that the burden of an affirmative covenant cannot run with the land in Equity, any more than at Law (n).
With regard to the benefit of covenants made with the owner of the land, whether affirmative or negative, which will be more fully dealt with later on (o), it is sufficient here to state that by the common law there are certain cases in which it runs with the land to each successive transferee, provided that such transferee be in of the same estate which the original covenantee had, and that the covenantee, at the date of the covenant being entered into, had the land to which the covenant relates (p).
Benefit of covenants made with owner of the land.
A question not unfrequently arises on the sale of a building estate as to the devolution of the benefit and of the burden of covenants of this description. In the case of Keates v. Lyon (q), the subject was considered, and the earlier authorities reviewed by the Court of Appeal; and it was laid down that restrictions of this sort are not in the nature of a reservation to the vendor, devolving on his subsequent purchasers as attached to the property : but are enforceable in
Restrictive covenants on sale of building estate.
Keates v. Lyon.
(!) L. & 8. W. S. Co. v. Gomm,
(1882) 20 Ch. D. 562 ; 51 L. J. Ch. 530; Mackenzie v. Childers, (1889) 43 Ch. D. 265, 279 ; 59 L. J. Ch. 188.
(m) Tailors of Aberdeen v. Coutts, (1840) 1 Rob. A. C. 296, 324 ; Keppel v. Bailey, (1834) 2 M. & K. 517, 529 ; cited in notes to Spencer',s case, 1 Sm. L. C. 11th ed. at p. 86 ; Hodson v. Coppard, (1860) 29 Beav. 4 ; 30 L. J. Ch. 20 ; Catt v. Tourle, (1869) 4 Ch. 654. And there is no distinction on this point between noxious trades and the sale of liquor ; Earl of Zetland v. Hislop, (1882) 7 A. C. 427,445.
(n) Haywood v. Brunswick Building Society, (1882) 8 Q. B. D. 403 ; 51 L. J. Q. B. 73 ; L. § S. W. R. Co. x. Gomm, sup. at p. 583 ; Austerberry v. Oldham Corp., (1885) 29 Ch. D. 750 ; 55 L. J. Ch. 633; Clegg v. Hands, (1890) 44 Ch. D. 503, 519 ; 59 L. J. Ch. 477.
(o) Inf. p. 784 et scq.
(p) Spencer's case, (1583) 5 Co. 16 ; Webb v. Russell, (1789) 3 T. R. 393 ; Rogers v. Hosegood, 1900, 2 Ch. 388; 69 L.J. Ch. 652.
(?) (1869) 4 Ch. 218 ; 38 L. J. Ch. 357.
Equity, as entirely depending on the contract and intention of the parties : - an intention which is strongly evidenced where the land is being dealt with according to some prescribed plan : as where it forms part of an existing building scheme. In Keates v. Lyon, A. sold part of an estate to B., who entered into restrictive covenants for himself, his heirs and assigns, with A., his heirs, executors, administrators and assigns, as to the buildings to be erected thereon: but there were no similar covenants by A. in respect of the land retained; nor was there any general building scheme affecting the property. A. subsequently sold other portions of the estate to different purchasers, and afterwards bought back from B. the lot which he had sold to him. It was held, in a suit for specific performance, that the benefit of B.'s covenants did not pass to A.'s other purchasers ; and that persons claiming through A. could make a good title to the re-purchased land, discharged from the covenants. In this case, there was no evidence to show whether the other purchasers bought with notice of B.'s restrictive covenants, or were themselves similarly bound.
The principle governing this class of cases, as now well established, cannot be better expressed than in the language of Hall, V.-C. (r) : "that anyone who has acquired land, being one of several lots laid out for sale as building plots, where the Court is satisfied that it was the intention that each one of the several purchasers should be bound by, and should, as against the others, have the benefit of the covenants entered into by each of the purchasers, is entitled to the benefit of the covenant; and that this right - i.e., the benefit of the covenant - enures to the assign, in other words, runs with the land of such purchaser. This right exists not only where the several parties execute a mutual deed of covenant, but wherever a mutual contract can be sufficiently established."