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 .
The person with whom the agreement was made, owning land in the neighborhood which might be benefitted by reason of the restriction, may no doubt proceed in equity for its enforcement. If on the other hand he has no land to be benefitted by the enforcement of the restriction, he cannot, by the weight of authority6'4
62. See article by Professor J. B. Ames, in 1 Harv. Law Rev. at p. 8, et seq., Lectures on Legal History p. 263, et seq.
63. See article by Professor Ames in 17 Harv. Law Rev. at p. 178, note, Lectures on Legal History at p. 385.
64. Forman v. Safe Deposit & Trust Co., 114 Md. 574, 80 Atl. 298; Genung v. Harvey, 79 N. J. Eq. 57, 80 Atl. 955; St. Stephens Church v. Church of Transfiguration, 201 N. Y. 1; Los Angeles, University v. Swarth, 107 Fed. 798, 54 L. R. A. 262, 46 C. C. A. 647. See Trustees v. Lynch, 70 N. Y. 440; Dana v. Wentworth, 111 Mass. 191.
A contrary view is adopted in Van Sant v. Rose, 260 Hi. 401, 103 N. E. 194, criticized in 9 111.
Law Rev. at p. 58, 27 Harv. Law at p. 493, 16 Mich. Law Rev. at p. 97. In Massachusetts it has been decided that the original vendor, who has disposed of all his land, may properly join in a suit by one of his vendees against another to enforce a re -striction. Riverbank Improvement Co. v. Bancroft, 209 Mass. 217, 34 L. R. A. (N. S.) 730, 95 X. E. 216. That the heirs of a promisee who disposed of all his land cannot enforce the restriction, see Graves v. Deterling, 120 N. Y. 447, 24 N. E. 655.
In England the fact that the promisee had parted with all liis property was considered not to preclude him from enforcing the restriction when its violation subjected him to a possible liaobtain such relief, a view which accords with the general practice of courts of equity, to give relief only in favor of one who shows an interest in the subject matter of the suit.
As regards the right of one claiming under the person with whom the agreement was made, to enforce the agreement, the cases are usually to the effect that, provided the agreement was intended to benefit particular land belonging to the promisee, rather than the promisee personally, and not otherwise, any purchaser of the whole or of part of that land is entitled to enforce the agreement to the same extent as the promisee himself could have enforced it.65 In such case the benefit of the agreement passes as incident to the land which the agreement was intended to benefit, in the same manner as the benefit of a covenant runs with the land at law.66 The question ordinarily arises in connection with a restrictive agreement entered into by the grantee of land with his grantor, who subsequently transfers adjoining land, in whole or in part, to another, who undertakes to assert the agreement as against the original grantee or one claiming under such grantee. In some cases the fact that the person with whom the agreement was made had at the time neighboring land which might be benefitted by compliance with the restriction appears to be regarded as sufficient to show that the agreement was intended to benefit the bility for breach of covenant of title. Spencer v. Bailey, 69 Law Times, 179.
65. Keates v. Lyon, 4 Ch. App. 218; Renals v. Colishaw, 9 Ch. Div. 125, 11 Ch. Div. 866; Leek v. Meeks, - Ala, - , 74 So. 31; Berryman v. Hotel Savoy Co., 160 Cal. 559, 37 L. R. A. (N. S.) 5, 17 Pac. 677; Hay v. St. Paul M. E. Church, 196 111. 633, 63 N. E. 1040; Sharp v. Ropes, 110
Mass. 381; Skinner v. Shepard, 130 Mass. 180; Beals v. Case, 138 Mass. 138; Clapp v. Wilder, 176 Mass. 332, 50 L. R. A. 120, 51 N. E. 692; De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329, 24 Atl. 388; Equitable Life Assur. Soc. of United States, v. Brennan, 148 N. Y. 661, 43 N. E. 173; Duester v. Alvin, 74 Ore. 544, 145 Pac. 660. 66. Ante, Sec. 389.
Land, so that it would enure to a subsequent purchaser of a part or the whole thereof.67 In other cases a contrary view is taken, that the person claiming the right to enforce the restrictive agreement as transferee of land which belonged to the promisee has the burden of showing that the agreement was intended to benefit the promisee's land rather than the promisee personally.68 Adopting the latter view, it is not entirely clear how this intention may be shown. In England and in two or three states the rule appears to be that, unless the restriction is in aid of some common plan or general scheme of development,69 it must be shown by the language of the instrument itself in which the agreement appears,70 construed with reference to the
67. Mcmahon v. Williams, 79 Ala. 288. Leek v. Meeks, - Ala. -, 74 So. 31; Roberts v. Porter, 100 Ky. 130, 37 S. W. 485; Herrick v. Marshall, 66 Me. 435; Peck v. Conway, 119 Mass. 546 (semble) ; Watrous v. Allen, 57 Mich. 362, 58 Am. Rep. 363, 24 N. W. 104; Hartwig v. Grace Hospital, 198 Mich. 725, 165 N. W. 827; Post v. Weil, 115 N. Y. 361, 5 L. R. A. 422, 12 Am. St. Rep. 809, 22 N. E. 145; Clark v. Martin, 49 Pa. 289; Muzzarelli v. Holshizer, 163 Pa. 643, 30 Atl. 291; Ball v. Mul-liken, 31 R. I. 36, 37 L. R. A. (N. S.) 623, Ann. Cas. 1912B, 30, 76 Atl. 789.
68. Keates v. Lyon, L. R. 4 Ch. 218; Berryman v. Hotel Savoy Co., 160 Cal. 559, 117 Pac. 677, 37 L. R. A. (N. S.) 5; Loomis v. Collins, 272 111. 221 111 N. E. 999; Sharp v. Ropes, 110 Mass. 381; Skinner v. Shepard, 130 Mass. 181; Lowell Institute for Savings v. Lowell, 153 Mass. 530, 27 N. E. 518; Hobart v. Weston, 223 Mass.
161, 111 N. E. 779; Coughlin v. Barker, 46 Mo. App. 54. Helm-eley v. Marlborough House Co., 62 N. J. Eq. 164, 50 Atl. 14; Mc-nichol v. Towsend, 73 N. J. Eq. 276, 67 Atl. 938, 73 N. J. Eq. 276, 70 Atl. 965.
69. Post, Sec. 400.
70. Renals v. Colishaw, 9 Ch. Div. 125; Reid v. Bickerstaff (1909), 2 Ch. 305. Judd v. Robinson, 41 Colo. 222, 124 Am. St. Rep. 128, 92 Pac. 724, 14 Ann. Cas. 1018; Helmsley v. Marlborough Hotel Co., 62 N. J. Eq. 164, 63 N. J. Eq. 804; Sailer v. Padolski, 82 N. J. Eq. 459, 88 Atl. 967; Skinner v. Shepard, 130 .Mass. 180; St. Patricks Religious etc., Ass'n v. Hale, 227 Mass. 175,
116 N. E. 407. See Beetem v. Garrison, 129 Md. 664, 99 Atl. 897; Equitable Life Ass'n. Soc. of United States v. Brennan, 148 N. Y. 661, 43 N. E. 173.
In Kiley v. Hall, 96 Ohio, 374,
117 N. E. 359, it was considered necessary, in order to enable the
1444 Eeal Property-. [Sec. 399 surrounding circumstances,71 but occasionally the view has been indicated that such an intention may be inferred from the surrounding circumstances alone, without reference to whether the instrument contains any indication of intention in this regard.72 Conceding that the intention to benefit the land must appear from the instrument itself in which the agreement occurs, the fact that the agreement is in terms with the promisee and his assigns would seem to be sufficient for this purpose73 and that the agreement was with the promisee and his heirs has been given this effect.74
In England the view has obtained that, although the agreement was not originally intended to benefit the land, the promisee may, upon the subsequent sale by him of the land, make the agreement enure to the benefit of the purchaser by the indication of an intention to that effect, that is, he may, as it were, annex the agreement to the land by making it. a part of the subject of the sale.75 Whether this power in the promgrantee of a lot to enforce a restriction inserted in the conveyance of a neighboring lot from the common grantor, that the latter grantee had reason to know either that the restriction in the deed to him was intended for the benefit of the owners of other lots, as well as of the grantor or that there was a common plan of improvement.
71. See Hays v. St. Paul M. E. Church, 196 111. 633, 63 N. E. 1040; Coughlin v. Barker, 46 Mo. App. 54; Clapp v. Wilder. 176 Mass. 332, 57 N. E. 692, 50 L. R. A. 120; Hennen v. Deveny, 71 W. Va. 629, L. R. A. 1917A, 524, 77 S. E. 142.
72. Peabody Heights Co. v. Wilson, 82 Md. 186, 36 L. R. A. 393, 32 Atl. 386, 1077; Forman v.
• Safe Deposit & Trust Co., 114 Md. 574, 80 Atl. 298; Badger v. Board-man, 16 Gray (Mass.) 559; Jewell v. Lee, 14 Allen (Mass.) 145, 92 Am. Rep. 744; Beals v. Case, 138 Mass. 138; Lowell Institute for Savings v. Lowell, 153 Mass. 530, 27 N. E. 518; Phoenix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400; Ball v. Mulliken, 31 R. I. 36, 76 Atl. 789, 37 L. R. A. N. S- 623; Hennen v. Deveny, 71 W. Va 629, L. R. A. 1917A, 524, 77 S. E. 142.
73. Mann v. Stephens, 15 Sim. 377; Nicoll v Flenning, 19 Ch. D. 258; Codman v. Bradley, 201 Mass. 361. 87 N. E. 591. See Mcmahon v Williams, 79 Ala. 288.
74. Helmsley v. Marlborough Hotel Co.. 68 N. J. Eq. 596, 61 Atl. 455.
75. Renals v. Cowlishaw, 9 Ch. Div. 125. 11 Ch. Div. 866. Cas.
I see to annex the agreement to the land is to be regarded as based on an intention in the promisor to confer on him such power, or is entirely independent of the intention of the promisor, does not clearly appear, and recognition of any such a power appears to lie unnecessary and confusing. As has been remarked by a writer of great discrimination: "The instances must be rare in which a promisor, willing to give the promisee the power of transferring the benefit of the agreement, would care whether the power were exercised by a double assignment of land and agreement or by the mere assignment of the land. Nor is it easy to see why this distinction should be of value to the promisee. For if the agreement be interpreted in the wider sense, as intended to give the benefit to the promisee and any assignee of the land as such, a promisee, wishing under exceptional circumstances to convey the land without the benefit, could easily release the restriction to the land about to be conveyed."76 This doctrine does not appear to have been adopted in this country.
There are occasional dicta to the effect that, even in the absence of a general plan,768 a restrictive agreement may be enforced by one who is neither the original promisee, nor a successor in interest of the latter, provided he owned neighboring land at the time of the agreement, and it was the intention that he should enjoy the benefit thereof.76b
If the agreement was for the benefit of particular land, not only a subsequent grantee in fee of such land, but a lessee thereof for years, is entitled to assert the agreement.77
489; Spicer v. Martin, 14 App. Cas. 12; Rogers v. Hosegood (900), 2 Ch. 388, 408; Nalder etc. Brewery Co. v. Harman, 82 Law Times 594.
76. Professor J. B. Ames, in 17 Harv. Law Rev. 174, Lectures on Legal History, 381.
76a. Post, Sec. 400.
76b. Hays v. St. Paul M. E. Church, 196 111. 633, 63 N. E. 1040; Doerr v. Cobbs, 146 Mo. App. 342. 123 S. W. 547. See editorial note, 12 Columbia Law Rev. 158, airl post, Sec. 400, note 83.
77. Taite v. Gosling, 11 Ch. D.
The right of a subsequent grantee of the land for the benefit of which the agreement was made to assert the agreement is, it has been decided, independent of whether he knew of its existence at the time of the conveyance to him.78
An agreement restricting the use of a particular tract of land is prima facie not to be construed as intended to restrict the use of one part of the tract in favor of another part thereof. For instance, an agreement by the grantee of land with his grantor that he will not make a particular use of the land conveyed cannot ordinarily be asserted by a subsequent purchaser of a part of that land as against the owner of another part.79