would enforce it against a party purchasing with notice of it; for if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased." His Lordship then commented on some of the previous cases, and concluded thus:“With respect to the observations of Lord Brougham in Keppel v. Bailey, he never could have meant to lay down that this court would not enforce an equity attached to land by the owner, unless under such circumstances as would maintain an action at law. If that be the result of his observations, I can only say that I cannot coincide with it."

Tulk v. Moxhay has been ever since acknowledged as the leading case on this subject, and the principle thereof always followed by the court, and scarcely questioned in argument (i). Indeed the tendency has been to extend the application of the principle and to remove technical objections to its operation.

In a late case before the Master of the Rolls, he laid down that a vendor who had sold a piece of land to a purchaser subject to covenants in restraint of building, and had afterwards sold an adjoining piece of land to another purchaser, could not, after the latter sale, release the first purchaser from his covenant. The second purchaser had entered into similar covenants with the common vendor, and the Master of the Rolls held "that each purchaser could prevent the violation of these covenants by the other, and that this reciprocal right is handed down from successor to successor indefinitely, so that every one who receives a sub

(i) Patching v. Dubbins, Kay, 1; Coles v. Sims, 5 De G. M. & G. 1.

stantial injury by the breach of this covenant is entitled to the assistance of the court for redress" (j).

In the case of Piggott v. Stratton (k), the defendant Stratton held two plots of land, A. and B., on a lease for 999 years, subject to covenants which preserved to the houses on plot A. a sea-view over plot B. The defendant underlet A. to one Harbour, to whom he showed the covenants of his lease, and asserted that he could not by reason of them block up the sea-view. The underlease contained a covenant by the defendant that he would perform the covenants contained in his original lease. The defendant afterwards surrendered his original lease to the ground landlord, and took a new lease not containing the former restrictions. His assignee proceeded to build on B., so as to obstruct the sea-view from A. Wood, V. C., at the suit of Harbour's assignee, restrained the defendant and his assignee from so building on B., on the ground of the representations by the defendant that he could not block up the view from A.; but he considered that the covenant in the underlease was limited in its operation to the period during which the original lease subsisted, and was destroyed by its surrender. But the Court of Appeal, Lord Campbell, and Knight Bruce and Turner, L. JJ., held that the plaintiff's legal rights under the covenant were not affected by the defendant's surrender, that he could after the surrender have maintained an action at law on the covenant, and that he was on that ground entitled to an injunction. They also thought that had the covenant been gone at law,

(j) Western v. Macdermot, L. R., 1 Eq. 507; 35 Law J. Rep., N. S., Ch. 195; affirmed by the Lord Chancellor, Dec. 4, 1866. (k) Johns. 341; 1 De G. F. & J. 33.

an injunction would have been granted by a court of equity, on the ground taken by the Vice-Chancellor.

In Child v. Douglas (1), the defendant took by conveyance from persons exercising a power of appointment contained in a settlement, subject to a covenant not to build within a certain distance of an intended street. The plaintiff was a purchaser from the persons who took under the limitations in the settlement in default of appointment. Wood, V. C., held that the plaintiff had an equity to enforce this covenant against the defendant. He said, "It is argued, that the conveyance of part of this land to the defendant having been made under the operation of the joint power, and his covenant having been entered into with the donees of the power only, it in no way binds the land with regard to those persons who come in subject to the power under the limitations in the settlement; and therefore, although the question whether the covenant runs with the land may be immaterial, in no sense can the covenantees be considered to be trustees of the covenant for the persons who take under the subsequent limitations. I think, however, that any remainderman would be extremely surprised if he were told, that, though he had joined in executing this conveyance and imposing this condition on the purchaser, yet, when he came into possession of the rest of the property, under the settlement, the whole benefit of the condition, which he had endeavoured to obtain, was at an end, and that he could have no advantage from it. The real truth is, that the court invariably regards stipulations of this kind with reference to the benefit of the property which

(1) Kay, 560; reversed on another point, 5 De G. M. & G. 739.

is reserved by the vendor; and looking at every possible analogy, even at law, I think I am bound to hold, that a covenant of this kind, though not strictly a reservation, is yet so analogous to it, that it would clearly enure to the benefit of parties interested under the settlement, like the reservation of a right of way in a similar conveyance.'

In that case the objection was also raised that there was no reciprocal covenant for the benefit of the purchaser from the vendor as to the property retained by him. The plaintiff on his purchase had himself entered into a similar covenant with the vendor, but the ViceChancellor thought that, even had he not done so, the objection could not be sustained. "The reciprocal advantage," he remarked, "here obtained by the defendant, is, really, the conveyance of the land; and it cannot be said, that for want of a reciprocal advantage, which he did not stipulate for, he cannot be compelled to perform that which he has expressly covenanted to do," and he pointed out that Tulk v. Moxhay was similar in this respect.

In Coles v. Sims (m) an attempt was made to take the case out of the rule on the ground that the vendor had covenanted with B. that he would procure A. to enter into certain covenants with B., and that this had not been done. Turner, L. J., said it was not necessary to say what the effect of this might have been if it had been shown that A. had been applied to by B. to execute these covenants and had refused to do so; but he took it that the party who insisted on the point must show that application had been made to the other party to join in the conveyance.

(m) 5 De G. M. & G. 1.

Courts of equity will, however, act with caution in enforcing covenants of this nature, and will neither too hastily infer their existence, nor will extend their operation beyond what the construction of the instrument requires. In the case of the Feoffees of Heriot's Hospital v. Gibson (n), the governors of the hospital and the magistrates of Edinburgh, when selling certain lots of land for building in the line of an intended new street, exhibited a plan which represented certain old buildings, not the property of the hospital or magistrates, as taken down, so as to make the street of even width throughout its length. The charter granted to the purchasers contained nothing about any obligation on the grantors to purchase and remove these old houses, but the court of session held that the magistrates were bound to remove them. This decision was, however, reversed by the House of Lords, who held that the mere exhibition of a plan of a new street at the time of the sale of a piece of ground in the line of such intended street, did not of itself amount to an engagement that all that was exhibited on the plan should be carried into effect, more especially where the purchase was effected by a distinct contract put into the form of a charter, in which nothing was said about that which the purchaser now claimed on the ground of its having been represented on the plan. Their Lordships were much pressed with a case of Deas v. Magistrates of Edinburgh (o), in which Lord Mansfield had expressed himself strongly in favour of a right similar to that now claimed by the respondents; but their Lordships observed that Lord Mansfield had not actually given

(n) 2 Dow. 301.

(0) House of Lords, April 10, 1772; 2 Dow. 304.