This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In England, an agreement will thus be enforced in equity against a subsequent purchaser or occupant only when it is restrictive of the use of the land, and not when it calls for the performance of some positive act by the occupant thereof.10 And in the great majority of the
138 Am. St. Rep. 370, 92 N. E. 37; Allen v. Barrett, 213 Mass. 36, 99 N. E. 575; Compton Hill Imp. Co. v. Strauch, 162 Mo. App. 76, 141 S. W. 1159; Maine v. Mul-liken, 176 Mich. 443, 142 N. W. 782; Spilling v. Hutcheson, 111 V'a. 179, 68 S. E. 250.
8. Flynn v. New York, W. & B. R. Co., 218 N. Y. 140, 112 N. E. 913.
9. Riverbank Improvement Co. v. Chad\vick, 228 Mass. 242, 117 N. E. 244.
9a. Doan v. Cleveland Short Line Ry. Co., 92 Ohio St. 461, 112 N. E. 505; Ward v. Cleveland Ry.
Co., 92 Ohio St. 471, 112 N. E. 507; U. S. v. Certain Lands, 112 Fed. 622; Wharton v. United States, 153 Fed. 876.
10. Havwood v. Brunswick Permanent Benefit Building Soc. 8 J. B. Div. 403; Austerberry v. Corporation of Oldham, 29 Ch. Div. 750; London & S. W. Ry. Co. v. Gomm, 20 Ch. Div. 562. See De Gray y. Monmouth Beach Club House Co., 50 N. J. Eq. 329. That only a restrictive agreement will thus be enforced, see also Miller v. Clary, 210 N. Y. 127, 103 X. E. 1114 (semble).
Cases in this country the agreement enforced has been restrictive. Thus, agreements not to use specified land for building,11 or for a particular business,12 or for other than residence purposes,13 have been thus enforced, as have agreements not to build within a certain distance of the street,14 or to erect no building of less than a certain cost,15 or of a style of construe tion other than that named.10 In some cases,17 however, an affirmative agreement in connection with the land has been regarded as within the doctrine, with the effect that a purchaser from the promisor with notice of such an agreement, though he may not be personally liable for its 11011 performance, takes the land subject to the possibility that a court of equity will enforce its performance, or reparation for its non performance, by a decree in reference to the land. So an agreement by which, if one uses a wall constructed by his adjoining owner, he is to pay a
11. Tulk v. Moxhay, 2 Phillips, 774. Wood v. Cooper (1894) 3 Ch. 671; Herrick v. Marshall, 66 Me. 435; Peck v. Conway, 119 Mass. 546; Lad:l v. City of Boston, 151 Mass. 585, 21 Am. St. Rep. 481, 24 N. E. 858; Phoenix Ins. Co. v. Continental Ins. Co., 87 X. Y. 400; Hennen v. De-veny, 71 W. Va. 629, L. R. A. 1917A, 524, 77 S. E. 142.
12. Mcmanon v. Williams, 79 Ala. 288; Collins Mfg. Co.v. Marcy. 25 Conn. 242; Watrous v. Allen, 57 Mich. 362, 58 Am. Rep. 363, 24 N. W. 104; Post v. Weil, 115 N. Y. 361; 5 L R. A. 422. 12 Am. St. Rep. 809, 22 N. E. 145; Stines v. Dorman, 25 Ohio St. 580.
13. German v. Chapman, 7 Ch. Div. 271; Parker v. .Nightingale, 6 Allen (.Mass.) 341, 83 Am. Dec. 632. Trustees of Columbia College v. Lynch, 70 N. Y. 140.
14. Manners v. Johnson, 1 Ch. Div. 673; Coles v. Sims, 5 De Gex. M. & G. 1; Linzee v. Mixer, 101 Mass. 512; Sanborn v. Rice, 129 Mass. 387; Ogontz Land & Improvement Co. v. Johnson, 168 Pa. St. 178, 31 Atl. 1008; Brandenburg v. Lager, 272 111. 622. 112 N. E. 321.
15. Bowes v. Law, L. R. 9 Eq. 636. Page v. Murray, 46 N. J. Eq. 325, 19 Atl. 11; Blakemore v. Stanley, 159 Mass. 6, 33 N. E. 689.
16. Keening v. Ayling, 126 Mass. 404; Landell v. Hamilton, 177 Pa. St. 23, 35 Atl. 242; Clark v. Martin, 49 Pa. St. 289.
17. Flege v. Covington & C. Elevated R. & Transfer & Bridge Co., 122 Ky. 348, 121 Am. St. Rep. 463, 91 S. W. 738; Bailey v. Aga-wam Nat Bank, 190 Mass. 20. 3 L. R. A. (N. S.) 98, 112 Am. St. Rep. 296, 5 A. & E. Ann. Cas.
Certain amount named, has occasionally been regarded as enforcible against the land in the hands of a purchaser with notice as an equitable rather than a legal claim.18 The adoption of this view, that even an affirmative agreement may be enforced as against a purchaser with notice, involves merely a necessity of regarding such an agreement, if for the payment of money by the promisor to the promisee, as creating an equitable lien or charge on the lands,19 and if for the doing of another character of act, as justifying a decree for the specific performance of the agreement. If the agreement neither calls for the payment of money nor is of such a character that specific performance would otherwise be decreed, it would appear to be enforceable in equity as against such a subsequent purchaser to no greater extent than it is enforcible at law. Subject to such considerations, there would appear to be no objection to the application of the doctrine which we are now discussing to the case of an affirmative agreement, except as the particular court may regard it as impolitic thus to increase the burdens capable of imposition on land.20 According to a few decisions, the agreement, even though restrictive, in order to be thus enforced in equity against a subsequent purchaser, must "touch and concern" land belonging to the person in favor of whom the agreement is made, by tending to the physical advantage of such land, it being insufficient that it increases its value indirectly by preventing the use of the adjoining property for a competing business.21 That such an agreement preventive of competition may be enforced against a subsequent purchaser with notice is however recognized or assumed in a number of cases.22 And admitting that the agreement is valid between the original parties thereto, the fact that its chief operation is to restrain competition appears to be hardly a sufficient reason for permitting a subsequent purchaser with notice of the agreement to use the land in contravention thereof.23
553, 76 N. E. 449; Childs v. Boston & M. R., 213 Mass. 91, 99 N. E. 957. Carson v. Percy, 57 Miss. 97; Burbank v. Pillsbury, 48 N. H. 475; Gould v. Partridge, 52 N. Y. App. Div. 40, 64 N. Y. Supp. 870 (semble); Hinchman v. Consol. Arizona Smelting Co., 198 Fed. 407 (semble). As adverse to the enforcement of such an affirmative covenant, see Miller v. Clary, 210 N. Y. 127, 103 N. E. 1114.