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.
Effect of partial acquiescence.
(I) Pease v. Coats, (1866) 2 Eq. 688 ; see cases cited, sup. p. 134.
(m) Bird v. Lake, (1863) 1 H. & M. 338 ; Smith v. Hancock, 1894, 2 Ch. 377; 63 L.J. Ch. 477.
(o) Turner v. Marriott, V.-C. K.,
31 July, 1866.
(p) Western v. McBermott, (1666) 1 Eq. 499; 35 L. J. Ch. 190; Lord Manners v. Johnson, (1875) 1 Ch. D. 673; 45 L. J. Ch. 404. See as to construction of covenant not to erect "more than two dwelling-houses," Hawes v. Scott, (1896) 40 Sol. J. 373.
(q) Western v. McDermott, (1867) 2 Ch. 72 ; 36 L. J. Ch. 76; Jackson v. Winnifrith, (1882) 47 L. T. 243; Chitty v. Bray, (1883) 48 L. T. 860.
(s) Per L. J. Turner in Lloyd v. I. C. § D. R. Co., (1865) 2 D. J. & S. at p. 578 ; 34 L. J. Ch. 401 ; Richards v. Revitt, (1877) 7 Ch. D. 224; 47 L. J. Ch. 472 ; Meredith v. Wilson, (1893) 69 L. T. 336.
(t) Hooper v. Bromet, (1903) 89 L. T. 37; (1904) 90 L. T. 234; Rowell v. Satchell, 1903, 2 Ch. 212 ; 73 L. J. Ch. 20.
(«) Rochdale Canal Co. v. King, (1851) 2 Si. N. S. 78, 89 ; Duke of
Northumberland Y.Bowman, (1887) 56 L. T. 773.
(x) L. C. &D. R. Co. y. Bull, (1883) 47 L. T. 412.
(y) Gaskin r. Balls, (1879) 13 Ch. D. 324.
(a) See Kemp v. Sober, (1851) 1 Si. N. S. 517; ef. Duke of Bedford v. Trustees of British Museum, (1822) 2 M. & K. 552 ; Roper v. Williams, (1822) T. & R. 18 ; Peek Y.Matthews, (1867) 3Eq. 515; German v. Chapman, (1877) 7 Ch. D. 271, 279; 47 L. J. Ch. 250 ; Knight v. Simmonds, 1896, 2 Ch. 294 ; 65 L. J. Ch. 583 ; Hep-worth v. Tickles, 1900, 1 Ch. 108; 69 L. J. Ch. 55.
And, though the Court will not entertain frivolous applications, it yet will, in any doubtful case, restrain a violation of a deliberate engagement: thus, where an agreement had been entered into between neighbouring landowners as to their mutual user of rights of water, the Court restrained a clear violation of the contract by one of the parties, without entertaining the question as to how far or whether the other was prejudiced thereby (c) : and, in another case, the Court, with reference to an infringement of a covenant by using adjoining premises as a school, well observed that "the feeling of anxiety is damage " (d).
It has been held that the establishment of a national school is not a "nuisance " within the strict legal meaning of the term(e).
Relief granted though the damage sustained is trivial.
(«) Mitchell v. Steward, (1866) 1 Eq. at p. 543 ; 35 L. J. Ch. 393.
(c) Dickenson v. G. J. C. Co., (1852) 15 Beav. 260 ; Tipping v. Eckcrsley, (1855) 2 K. & J. 264; Johnstone v. Hall, (1856) ib. at p. 420 ; 25 L. J. Ch. 462 ; Leech v. Schweder, (1874) 9 Ch. 465, n. ; 43 L. J. Ch. 487. See as to a covenant to ' keep open and uubuilt on," Graham v. Corp. of Newcastle, (1892) 67 L. T. 790.
(d) Kemp v. Sober, (1851) 1 Si. N. S. 517, 520; sup. pp. 776,778. As to keeping a school being a breach of a covenant to use the premises as a private dwelling-house only, see also Wickenden v. Webster, (1856) 6 E. & B. 387; 25 L. J. Q. B. 264 ; Johnstone v. Hall, (1856) 2 K. & J. 414; 25 L. J. Ch. 462; so, as to keeping a boarding-house, Ifobson v. Tulloch, 1898, 1 Ch. 424; 67 L. J. Ch. 205. And it makes no difference that no benefit or profit is derived from the school or institution, and that it is wholly charitable ; German v. Chapman, (1877) 7 Ch. D. 271 ; 47 L. J. Ch. 250 ; Alt.-Gen. v. Corp. of Manchester, 1893, 2 Ch. 87 ; 62 L. J. Ch. 459 (a hospital) ; Soils v. Miller, (1884) 27 Ch. D. 71; 53 L. J. Ch. 682; and sec judgment of Cotton, L. J., in Tod-Heatley v. Benham, (1888) 40 Ch. D. 80; 58 L. J. Ch 83.
Any covenant, the benefit or burden of which runs with the land, which gives a present right to an interest in land which may arise at a period beyond the legal limit, is void, notwithstanding that the person entitled to the benefit of it may release it(/). Thus, a covenant by a purchaser, that he, his heirs, and assigns, will re-convey to the vendor at any time, on being required to do so, at a fixed price, is void as transgressing the rule against perpetuities (g). So, too, an unlimited power of re-entry in the event of a breach of covenant (h). The rule only applies to limitations of property ; hence, a purely personal covenant - e.g., to pay money in an event which may only arise at a distant period of time, -is not obnoxious to the rule (i), nor is a covenant by vendor or purchaser restricting the user of land (/>•).
Covenants void as contrary to rule against perpetuities.
As regards covenants for title and for production, etc, of title deeds, they stand on the same footing as other affirniative covenants, the benefit of which runs with the land, though the burden does not (I) ; and the Conv. Act, 1881 (w), which enacts, that the benefit of an implied covenant for title is to run with the land simply declares the law. But in the case of an acknowledgment for production, or undertaking for safe custody (n), there is this important difference ; that by the Statute the burden of the acknowledgment, or undertaking, is made to run so as to bind the individual having possession or control of the documents, so long only as he has such possession or control.
Covenants for title and production.
(e) Harrison v. Good, (1871) 11 Eq. 338 ; 40 L. J. Ch. 294, where the covenant was not to do or suffer anything which might he deemed a nuisance; but see Wanton v. Coppard, 1899, 1 Ch. 92; 68 L. J. Ch. 8; Walter v. Selfe, (1851) 4 De G. & S. 315; 20 L. J. Ch. 443; Sole v. Barlow, (1858) 4 C. B. N. S. 334 ; 27 L. J. C. P. 207 ; with which ef. Bamford v. Turnley, (1862) 3 B. & S. 66; Att.-Gcn. v. Cole, 1901, 1 Ch. 205; Sanders-Clark v. Grosvenor, §e. and d'Allessandri, 1900, 2 Ch. 373 ; 69 L. J. Ch. 579 ; and see judgment of Sir W. Erle in Brand v. Summer-smith B. Co., (1867) L. R. 2 Q. B. at pp. 246, 248; 4 H. L. 171; 38 L. J. Q. B. 265. As to what is an annoyance, Tod-Seatley v. Ben ham, (1888) 40 Ch. D. 80 ; 58 L. J. Ch. 83 ; Woody. Cooper, 1894, 3 Ch. 671 ; 63 L. J. Ch. 845. As to what is a nuisance, eee Kerr on Injunctions,