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 question of who may enforce a restrictive agreement as to the use of land has arisen most frequently in connection with agreements entered into in furtherance of some general plan or scheme of improvement devised by the owner of land upon its division into building lots, it being intended that the purchasers of lots shall, for the common benefit of all, utilize the lots only in accordance with such plan. The cases are to the effect that when such a general plan exists, any purchaser of a lot with knowledge of such plan may assert the restrictions involved therein as against any other purchaser.80 In spite of the unanimity with which the purchaser to enforce the subsequent agreement of another purchaser might he supported on the ground that the beneficiary of a contract, although not a party thereto, can maintain suit thereon.83 In jurisdictions which do not concede such a right to the beneficiary of a contract, the view might perhaps be adopted that what the prior purchaser in such case is allowed to enforce is, not the agreement entered into by the subsequent purchaser, but an agreement to the same effect, entered into by the common vendor, either expressed, or inferred from the existence of a common plan of improvement. That is, if different persons purchase lots from A and there is a common plan of improvement brought by A to the knowledge of each purchaser, this evidences an agreement by A with each purchaser that the lots subsequently to be sold by him shall not be utilized in violation of such plan, and this agreement can be enforced as against any subsequent purchaser (with notice thereof) from A, without regard to the agreement in this regard between such subsequent purchaser and A. It must be conceded, however, that such a theory has but rarely been judicially asserted,84 and the courts, in adjudicating the right of purchasers
273; Johnson v. Robertson, 156 Iowa, 64, 135 N. W. 585.
78. Rogers v. Hosegood (1900), 2 Ch. 388, 407; Child v. Douglas, Kay 560, 571.
79. King v. Dickson, 40 Ch. D. 596; Graham v. Hite, 93 Ky. 474, 20 S. W. 506; Jewell v. Lee, 14 Allen (Mass.) 145, 92 Am. Dec. 744; Dana v. Wentworth, 111 Mass. 291; Korn v. Campbell, 192 N. Y. 490, 37 L. R. A. (N. S.)
1, 127 Am. St. Rep. 925, 85 N. E. 687; Lewis v. Ely, 100 N. Y. App. Div. 252; Wright v. Pfrimmer, 99 Neb. 447, 156 N. W. 1060; Contra Winfield v. Henning, 21 N. J. Eq. 188; Boyden v. Roberts, 131 Wis. 659, 111 N. W. 701 (two judges dissenting).
80. Spicer v. Martin, 14 App. Cas. 12; Mackenzie v. Childers, 43 Ch. Div. 265. Alderson v. Cutting, 163 Cal. 503, 126 Pac. 157; Mccourts, when the matter has been presented, have accepted this doctrine, there is a singular and disappointing lack of explanation of the principle on which it is to be regarded as based. As between two purchasers of different lots at different times, the right of the later purchaser to enforce the agreement of the earlier purchaser is readily explicable on the theory that the existence of the general plan shows an intention that such agreement shall enure to the benefit of all the lots not then disposed of by the common vendor, so that, upon the subsequent sale of one of these latter lots, the purchaser thereof will, in accordance with the rule before stated,81 be entitled to enforce the agreement. But this does not explain how an earlier purchaser is enabled to enforce a restrictive agreement entered into at a later date by a later purchaser. An agreement cannot well pass on a transfer of land unless there is an agreement then in existence to pass.82 In some of the states the right of the prior under a common plan to enforce restrictions as between themselves, base this right in terms not upon the implication of an agreement by the common vendor, but upon the express agreements entered into by the purchasers themselves. Furthermore the Statute of Frauds might possibly operate to deprive of legal effectiveness an agreement so implied from oral statements as to a general plan. Another explanation which has been given of the rights of enforcement as between various purchasers is that the equity "springs from the presumption that each purchaser has paid an enhanced price for his property, relying on the general plan, by which all the property is to be subjected to the restricted use, being carried out, and that while he is bound by and observes the covenant, it would be inequitable to him to allow any other owners of lands, subject to the same restrictions, to violate it."85 And it has also been said that in such case the covenant is enforceable by any grantee against any other upon the theory that there is a mutuality of covenant and consideration which binds each, and gives to each the appropriate remedy.80
Neil v. Gary, 40 App. D. C. 397, 46 L. R. A. (N. S.) 1113; Parker v. Nightingale, 6 Allen (Mass.) 341, 83 Am. Dec. 632; Evans v. Foss, 194 Mass. 513, 9 L. R. A. (N. S.) 1039, 80 N. E. 587; Allen v. Barrett, 213 Mass. 36, 30 Ann. Cas. 820, 99 N. E. 575; Allen v. Detroit, 167 Mich. 464, 36 L. R. A. (N. S.) 890, 133 N. W. 317; Reed v. Hazard, 187 Mo. App. 547, 174 S. W. Ill; Winfield v. Henning 21 N. J. Eq. 133; De Gray v. Mon: mouth Beach Club House Co., 50 N. J. Eq. 329, 24 Atl. 388, 67 N. J. Eq. 731, 63 Atl. 1118; Mulligan v. Jordan, 50 N. J. Eq. 363, 24 Atl. 543; Hyman v. Tash - (N. J. Eq.) -, 71 Atl. 742; Tallmadge v. East River Bank, 26 N. Y. 105; Barron v. Richard, 8 Paige (N. Y.) 105; Wallace v. Clifton Land Co., 92 Ohio St. 349, 110 N. E. 94; Hooper v. Lottman, - Tex. Civ. - , 171, 171 S W. 27; Boyden v. Roberts, 131 Wis. 659, 111 N. W. 701.
It has been held that if one includes in a common plan not only his own land, but adjoining land which he does not own, and he subsequently acquires this land, a purchaser of lots therein from him takes it subject to the plan. Schmidt v. Palisade Supply Co., - N. J. Ch. - , 84 Atl. 807. The equitable obligation in effect attaches to the land when it is .acquired by him. See 13 Columbia Law Rev. at p. 77.