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 .
While the right to enforce in equity an agreement or covenant of a restrictive character as against a subsequent purchaser with notice thereof is generally recognized, the judicial expressions as to the principle underlying such enforcement are singularly inharmonious. In some cases, the doctrine appears to be regarded as merely an equitable application of a legal rule that the burden as well as the benefit of a covenant which touches and concerns the land will run with the land, a view which is necessarily restricted to such states as have adopted the rule that the burden of a covenant runs with the land at law.36 In a considerable number of cases the right of enforcement appears to be based on the theory that, in the view of a court of equity, an easement in the land is created by an agreement of this character.37
49 Tex. Civ. App. 542, 109 S. W. 418.
34. See Sprague v. Kimball, 213 Mass. 380, 100 N. E. 622.
35. See Clanton v. Scruggs, 95 Ala. 279, 10 So. 757.
36. Ante, Sec. 390.
37. Mcmahon v. Williams, 79 Ala. 288; Weil v. Hill, 193 Ala. 407, 69 So. 438; Tinker v. Forbes, 136 111. 221, 26 N. E. 503; Hutchinson v. Ulrich, 145 111. 336, 21 L. R. A. 391, 34 N. E. 556; Clark v. Mcgee, 159 111. 518, 42 N. E. 965; Herrick v. Marshall, 66 Me. 435; Leader v. La Flamme, 111
Me. 242, 88 Atl. 859; Dawson v Western M. R. Co., 107 Md. 70, 14 L. R. A. (N. S.) 809, 126 Am. St. Rep. 337, 15 Ann. Cas. 678, 68 Atl. 301; Hogan v. Barry, 143 Mass. 538, 10 N. E. 253; Ladd v. City of Boston, 151 Mass. 585, 21 Am. St. Rep. 481, 24 N. E. 858; Chase v. Walker, 167 Mass. 293, 45 N. E. 916; Brown v. O'brien. 168 Mass. 484, 47 N. E. 195; Riverbank Improvement Co. v Chadwick, 228 Mass. 242, 117 N. E. 244; Allen v. City of Detroit, 167 Mich. 464, 133 N. W. 317, 36 L. R. A. (N. S.) 890; Bowen v.
This latter theory has been adopted by the later English cases,38 and has been there applied to the extent of holding that, as a legal easement requires a dominant as well as a servient tenement,39 so an " equitable easement," requires a dominant tenement, that is, such an easement can be created by a restrictive cove nant only if the covenantee has an interest in the land sought to be benefitted, with the result that if the covenantee has not such an interest, a purchaser from the covenantor, although taking with notice of the covenant, is not affected thereby.4"
The theory referred to, that a restrictive agreement operates to create an easement for the purposes of a court of equity, though favored by the later English cases, and frequently referred to with approval by most respectable American courts, is by no means entirely satisfactory.40a If what is in form a
Smith, 76 N. J. Eq. 456, 74 Atl. 675; Trustees of Columbia College v. Lynch, 70 N. Y. 440; Muz-zarelli v. Hulshizer, 163 Pa. St. 643, 30 Atl. 291; Green v. Creigh-ton, 7 R. I. 9.
38. The adoption of this view by the English courts dates from the dictum, entirely uncalled for, of Jessel, M. R., in London & Southwestern Ry. Co. v. Gomm, 20 Ch. D. 562. that "the doctrine of Tnlk v. Moxhay, 2 Phil. 774, rightly considered, appears to me to be 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." See, in support of this view, editorial notes in, 28 Harv. Law Rev. at p. 201, 31 Id. at p. 876.
39. Ante, Sec. 348.
40. Formby v. Barker (1903),
2 Ch. 539; Millbourn v. Lyons (1914), 1 Ch. 34; London County Council v. Allen (1914), 3 K. B. 642. In the latter case two of the three judges indicate dissatisfaction with the theory which compelled such a decision.
Likewise, on the analogy of easements, it has, in Massachusetts, been decided that the benefit of a restrictive agreement by the grantee of land would not pass on a subsequent conveyance of neighboring land in which the promisee had merely an undivided interest, since a contrary view would involve in effect a reservation of an easement in favor of a person not of a party to the conveyance, that is, the owner of the other undivided interest. Hazen v. Mathews, 184 Mass. 388, 68 N. E. 838.
40a. The covenants thus enforced against an assignee of the contract not to use the land in a particular manner creates an easement as to the use of the land, it should, one would suppose, create it for the purposes of a court of law as well as of a court of equity. It is difficult to understand how language which, when under consideration in a court of equity, is regarded as creating an easement can, when under consideration in a court of law, be regarded as creating a contract only.41 It is no doubt true that an easement can be created by what are in form words of covenant,42 but that is by reason of the construction placed upon these words as being in effect words of grant, for the purpose of a court of law as well as of equity. It is somewhat noticeable that even courts which emphasize the theory of "equitable easement" for the purpose of making effective a restrictive covenant as against a subsequent purchaser of the land, ordinarily regard words of covenant restrictive of the use of land as creating, for other purposes, merely a covenant.43 That is, the courts ignore the possible operation of such words as creating an equitable easement rather than a covenant, except when it is convenient to regard them as creating such an easement for the purpose of making them effective against a subsequent purchaser.
The more satisfactory theory, it is conceived, in regard to the enforceability in equity of restrictive covenantor are, as hereafter stated, usually restrictions upon the character or location of the building to be erected, or business to be maintained, on the land, and such covenants are, in some of the cases last cited, said to create easements of light, air, and prospect. They are, however enforced even when their violation could not involve any interference with light, air, or prospect, as in the case of a deviation of a few inches from a building line, or a restriction as to the use to be made of the land, or the cost of the building thereon.
41. See the remarks of Wilde, J., in Hurd v. Curtis, 19 Pick. (Mass.) 459, quoted ante, Sec. 391, note 29.
42. Ante, Sec. 361.
43. See 1 Tiffany, Landlord & Tenant, Sec. 123.
Agreements against purchasers with notice is that equity regards such an agreement as vesting in the promisee a right to specific enforcement by means of an injunction or otherwise, not only as against the original promisor, but also as against a subsequent holder of the property, if not a purchaser for value without notice.44 If the right to equitable relief could not thus be asserted as against a subsequent holder of the property, the result would be that the promisee could be deprived of such right, in practically every case, by a collusive transfer on the part of the promisor. The doctrine, properly regarded, appears to be closely analagous to that by which the equitable right to specific performance of a contract is enforced as against a subsequent holder of the property, not a bona fide purchaser for value, by a decree requiring him to make a conveyance in conformity to the contract, as well as to the doctrine that a trust may be enforced as against a purchaser from the trustee under like circumstances. Such a right as to the use of land, created by contract and capable of enforcement as against a subsequent holder of the land, resembles likewise an equitable lien created by a contract subjecting the land to a pecuniary claim by way of security for the claim.
It has in England been decided that one who acquires the land by adverse possession takes it subject to a restrictive agreement to which it was subject in the hands of the rightful owner.45 This decision appears,
At p. 119, 17 Harv. Law Rev. at p. 415, 21 Id. 139; De Gray v. Monmouth Beach Club House Co., 50 X. J. Eq. 329, 24 Atl. 388; Cotton v. Cresse, 80 N. J. Eq. 540, 85 Atl. 600, 49 L. R. A. (N. S.) 357.
44. See the discussion in Sug-den, Vendors & Purchasers (14th Ed.) 802 et seq. Maitland. Equity 165; articles by Prof. J. B. Ames in 17 Harv. Law Rev. at p. 174, Lectures on Legal History, 381; by T. Cyprian Williams, Esq., in 51 Solicitors' Journal 141; by Pro-fesor Harlan F. Stone, in 18 Columbia Law Rev. at p. 291; editorial notes in 4 Law Quart. Rev.
45. Re Nisbet & Potts' Contract (1905), 1 Ch. 391, (1906) 1 Ch. 386.
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1438 Real Property. [$ 397 to some extent at least, to be based on the theory, referred to in the preceding paragraph, that the right created by such an agreement is in the nature of an easement. Attention has been called by an able writer46 to the difficulty of harmonizing this decision, which in effect regards an equitable claimant as unaffected by the fact that the holder of the legal title is barred under the statute of limitation, with the rule47 that a cestui que trust is barred when the holder of the legal title is barred, and suggestions have been made that in view of this decision, the rule that a cestui que trust is barred when the holder of the legal title is barred must be regarded as having been superseded as a result of the language used in the Statute of Limitations now in force in that country.48