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is such a change of circumstances that per- and the keys. Manifestly one thing is formance of the covenant ought not to be plain ; if such were the case, his only hope required. It was likened to the case of The to induce persons to get admission into the Duke of Bedford v. the Trustees of the British garden was to keep it in a neat and ornaMuseum (3). I think Mr. Palmer, with the mental condition, so as to entice people to ability and sense with which he has con- come out of their houses, and having gone ducted the whole of this business, did not to the expense of having keys, to pay for press that strongly in his reply: and he was them. But it has been grossly neglected; perfectly right in doing so, because there it has become, what is called in the eloquent is a manifest and plain difference between language of Chancery pleading in the anthe two cases. In the case of The Duke swer, “a disgrace and reproach to the of Bedford v. the Trustees of the British neighbourhood, and that boys broke in," Museum the party who was seeking against and I do not know what they did there. the other the performance of the covenant, This has been done with the permission had himself, by his own acts, placed the of those who have been the owners of the property under such different circumstances place, and who had power over it, and not that it was perfectly manifest there was no with the permission of Mr. Moxhay, as he reciprocity; the parties were not in any only became owner (although he had a way in the same situation ; but in the reply right of contract previously in the month of it went rather upon a different footing. August last. However, for a long series of There has been, not a difference with regard years from the description I have received, to the original argument, but a difference it has been in such a condition that nobody with regard to a particular point; it was said would give a farthing to go into it, and that a passage was made through the north they would be very anxious to avail themside of Leicester Square, and consequently selves of the right to stop out of it. This (although according to an act of parlia. being the condition of the place, the argument) that that of itself would vary the ment is, that the inhabitants of the square covenant. I am clearly of opinion that that have never come and offered to pay their could not be so. It is said that an act of money; they have never asked the defenparliament has been forced upon all these dant or anybody else to keep it in order. parties for a new street, not touching the I cannot say that that seems to me to property in question, but thereby making be a reason why this injunction should a great thoroughfare, having a tendency to be refused. That is the argument here, alter the sort of persons who might like that there has been such an acquiescence, to inhabit that particular place. But that that the Court, even if it saw right to interthoroughfare through the upper part of it fere on other grounds, ought not to interdoes not alter it at all in this respect to fere upon this ground. I think that I persons residing in the square ; it does not cannot act upon that. I do not think the follow that they might not desire to have grounds stated are grounds why the Court a pleasant garden in the middle of the should not exercise the jurisdiction, if it square. I do not think it in the least has jurisdiction, which I must, in the prealters that.
sent state of authority, conceive the Court Then the reply turned upon the point of has. acquiescence. In 1808 this covenant was Then it is said that this form of injuncmade. Looking at the particular meaning tion is erroneous; and I very much incline of that deed, I can only conjecture-I will to think it does require variation, and I not place any weight upon it, but I should have considerable difficulty about it. I do have supposed that the purchaser of that not mean to conceal that there is a diffipiece of ground, under such a deed as this, culty as to what, upon a fair construction had apprehended it was worth his while to of this covenant, is this gentleman's right pay the money he paid, hoping to get some to deal with this property. I am only revenue from it by means of the garden considering now that this argument is cor
rect, and not advancing any authority or (3) 2 Myl. & K. 552; s. c. 2 Law J. Rep. (N.s.)
more than is necessary for me to do. It Chanc. 129.
is said that he is bound to keep it open
and uncovered, and to have it in a neatsion he entered into some treaty with the and ornamental state, which he confesses plaintiff in this case, shewing what he he has not done. He insists that he has thought about doing at that time, someno occasion to do it unless he pleases. I thing ought to be done by this Court; think he is under some terms, which will although I should be most anxious not to shew that he cannot leave it in that foul and do, in the least degree, more than seems to disgraceful state which he maintains he me to be perfectly warranted by the covehas a right to do if he thinks fit. I do nant which was entered into by Mr. Elms, not think that he will find that can be of which this gentleman had full notice, maintained. He must do something now How far to go with that injunction, or to prevent it. What he has done, as I whether to go any further than say he shall understand, has been this, that instead of not build there, that he shall keep it open keeping this as a neat and ornamental and uncovered, is what I certainly feel garden, for which he is to give keys to the some doubt about. I think that portion of inhabitants, they paying a certain sum, he the injunction which relates to the trees has up to this moment not done anything. ought to be discharged. It may not be inconsistent with that, but As to the rest, I think that I might not he says, “ All I am doing is making two unsafely continue it. But I should really walks to go across the square, and I shall wish, if counsel desire that I should do what have gates which are to be at each entrance, is right on both sides, that they would give and I am not doing anything else;" unless me some assistance, my anxiety being to I understand him to say, that he is going do that which should protect these parties to have fences six feet high on each side until the question should be finally settled of this walk, which I think he does say.. between them, and not to impose any more Now, I believe myself, if he has such restraint upon Mr. Moxhay than is neceswalks as those two across this square, he sary for that particular purpose. I do not can hardly make a greater nuisance of the go the whole length asked by the plaintiff place than it is now. Consider what they as to the neat and ornamental order, but I will be at night. But whether he intends must restrain the defendant from convertto do anything more he will not say. He ing or using the square garden, or removsays, “I have a right to use this as my ing the iron railings in such a manner as own, I have the right which has been is inconsistent with the use of it as an exercised for many years before 1839, to open garden and pleasure ground. keep this in so foul and disgraceful a state, I do not mean to do that, but I do mean D ec. 21, 22.- The defendant moved beto say, that I have a right, if I think fit, fore the Lord Chancellor, by way of appeal, to remove that statue, which is an orna- that the order of the Master of the Rolls ment there, and I have a right to build as might be discharged. high as I please, if I think fit to do so ;' and he insists upon that right at the time Mr. R. Palmer, in support of the motion. when he is doing something which I do not Mr. Rolt and Mr. Shebbeare, contrà, mean now to say is clearly and beyond were not called upon. all doubt a violation of the contract, but which, if it is maintained, will, I think, as The LORD CHANCELLOR. — I have no has been said on the other side, be cer- doubt whatever upon the subject; in short, tainly a step towards doing something I cannot have a doubt upon it, without which may be a much more serious vio- impeaching what I have considered as the lation of the covenant than this.
settled rule of this Court ever since I have Now, I think that in the state of the known it. That this Court has authority claim which the defendant makes to do to enforce a contract, which the owner of what he pleases, after this matter has been one piece of land may have entered into brought into question under the circum- with his neighbour, founded, of course, stances, which I do not think immaterial, upon good consideration, and valuable hat several years ago he was about to do consideration, that he will either use or something else, and that upon that occa- abstain from using his land in any manner that the other party by the contract stipu- that there shall be no buildings erected upon lates shall be followed by the party who that space. It is now contended, not that enters into the covenant, appears to me Elms, the vendee, could violate that conthe very foundation of the whole of this tract-not that he could build immediately jurisdiction. It has never, that I know after he covenanted not to build, or that of, been disputed. In the case in the this Court could have any difficulty, if he House of Lords of Heriot's Hospital, in had made that attempt, in preventing him Scotland (4), there was raised this question, from building—but that he might sell that and this question only: whether a plan piece of land as if it were not incumbered exhibited at the time the conveyance was with that covenant, and that the person to taken could be considered as part of the whom he sold it might at once, without contract. There had been some authorities the risk of the interference of this Court, treating it as part of the contract: the violate the covenant of the party from Court of Session had so considered it, not whom he purchased himself. upon principles confined to the law of Now, I do not apprehend that the jurisScotland at all, but upon principles appli- diction of this Court is fettered by the cable to the law of both countries. When question, whether the covenant runs with it came to the House of Lords, that was the land or not. The question is, whether the only matter which Lord Eldon and a party taking property, the vendor having Lord Redesdale had to consider. It never stipulated in a manner binding by the law entered into the contemplation of either of and principles of this Court to use it in those noble Lords (as far as I recollect, at a particular way, will be permitted by this least from the report of that case,) that Court to use it in a way diametrically there was any question as to the juris- opposite to that which the party has covediction of a court of equity (equity being nanted for. If that be so, what has become, administered by the Court of Session in not only of all those cases before the Vice Scotland), or that the party might so bind Chancellor, which have been now referred himself. And there is not now any ques. to, and in which he has considered it as a tion raised as to that; only it is con matter not in dispute, but of the case of the tended that this Court will not enforce the British Museum, before Lord Eldon ? He covenant.
did not enter into that question, and it It is not disputed that a party selling does not seem to have been contended land may, by some means or other, pro- before him or before Sir John Leach by vide that the party to whom he sells it those who argued it, although Sir John shall conform to certain rules, which the Leach took that view of it. And so far as party selling may think proper to lay the arguments before Lord Eldon, which down as between themselves. They may have been very shortly reported, go, we do so contract as to bind the party purchasing not know exactly what passed. But lookto deal with the land according to the ing at the ground Lord Eldon took, parstipulation between the parties. Now, ticularly in the case of Heriot's Hospital, here there is no question about the con- it must have occurred to his mind that if tract, because here the purchaser of the such a covenant was found to exist-if such area of Leicester Fields takes it subject had appeared to be the agreement between to the following stipulation :-[His Lord the parties, this Court would interpose and ship then read the covenant).
protect the party selling against the vioHere, then, upon the face of the instru- lation of the covenant into which he had ment, not left in any doubt, or with any entered. Of course, the party purchasing evidence to be supplied dehors the instru- the property under such restriction, gives ment, the owner of the houses erected less for it than he would have given if he disposes and sells land adjoining to those had bought it unincumbered. Therefore, houses with an express covenant on the can there be anything much more inequitpart of the purchaser, his heirs and assigns, able or contrary to good conscience, than
that a party who takes property at a less (4) The Feoffees of Heriot's Hospital v. Gibson, price because it is subject to a restriction, 2 Dow, 301.
should receive the whole value from a third
party, and that such third party should then hold it unfettered by the restriction under which it was granted ? That would be most inequitable, most unjust, and most unconscientious; and as far as I am in. formed, this Court never would sanction any such course of proceeding; but, on the contrary, has always acted upon this, that you, who have the property, are bound by the principles and law of this Court to submit to the contract you have entered into ; and you will not be permitted to hand over that property, and give to your assignee or your vendee a higher title, with regard to interest as between yourself and the vendor, than you yourself possess,
That is unconnected with the equitable doctrine of a covenant running with the land. If the Court finds in the instrument itself, not in the shape of a covenant or recital, anything which shews the Court what was the understanding between the parties, the case becomes free from all those difficulties which exist where contracts are attempted to be inferred from the exhibition of a plan. Then you have it upon the face of the instrument itself; nay, a plan attached to the instrument is part of the instrument, and is evidence.
All which the decisions have settled, is this, that you cannot go out of the instrument and by evidence dehors the instrument, raise a new case by the exhibition of a plan not attached to, and therefore not forming part of the instrument. If there be a plan attached to the instrument, that plan may be considered as evidence of the contract entered into between the parties. There is no question about the legal liability, which is best proved by this : that if there be a merely legal agreement, and no covenant-no question about the covenant running with the land—but the party who takes the land takes it subject to the equity which the owner of the property has created-if he takes it, subject to that equity created by the party through whom he has derived title to it; is it not the rule of this Court, that the party who has taken the property with knowledge of the equity, is liable to the equity? Is not this an equity attached to the property, by the party who is competent to bind the property? If a party enters into an agree
New Series, XVIII.-Chanc.
ment for a lease and then sells the property, the party buying the property with knowledge of that agreement cannot set up his title against the party claiming the benefit of that contract; because if there had been an equity attaching to the property in the owner, the owner is not permitted to give a better title to the purchaser with notice, than he himself possessed. The other party is entitled to the benefit of the contract, and to have it exercised and carried into effect against the person who is in possession, unless that party can shew he purchased it without notice. Here there is a clear, distinct and admitted equity in the vendor, as against Mr. Elms; and as to the party now sought to be affected by it, it is not in dispute that he took the land with notice of the covenant: indeed, it appears on the face of the instrument which is the foundation of the title. It seems to me to be the simplest case that a court of equity ever acted upon, that a party cannot have a better title than the party under whom he claims.
Without adverting to any question about a covenant running with land or not, I consider this piece of land is purchased subject to an equity created by a party competent to create it: and the present defendant took it with distinct knowledge of such equity existing; and such equity ought to be enforced against him as it would be against the party who originally took the land from Mr. Tulk. I say nothing of the doctrine supposed to be laid down by Lord Brougham, because I have not had an opportunity of examining exactly how it stands; therefore, I may not very distinctly understand it. Undoubtedly, it cannot be supposed that Lord Brougham intended to lay this down, that this Court would not consider any equity attaching to land, and such as this Court would enforce, except in cases in which it might be enforced at law. It is clear that could not be the intention of Lord Brougham, however the opinion he expressed may appear; and I say nothing about that, nor do I give any opinion about it, -I could not venture to do so without critically examining the expressions attributed to him. If there be any such, I can only say I do not coincide with that doctrine. I consider the rule of law is not
the legacy absolutely, without any settlement being made.
at all the measure of the administration of equity. In short, it would be obvious, if it were so, that there could be no contract interfering with the fee simple, or the management of it. If a man has, in law, a fee simple, cannot he in equity contract with that in a way which may be beneficial or not be injurious to his neighbour? I cannot understand how that doctrine can exist, co-extensively with the jurisdiction which the Court is in the habit continually of exercising.
I think, therefore, that the Master of the Rolls is quite right.
In that case of Mann v. Stephens I do not know whether that point was raised: in all probability it was not. I did not advert to it according to any report that I have; but it is directly in point, not only so far as my decision went, but on the case as argued before the Vice Chancellor, and decided by the Vice Chancellor, and affirmed on the only point at all affecting the present question by me, namely, that these parties -neither of them being parties to the covenant, but both having derivative titles, one under the vendor and one under the vendee-had given effect to the contract between the vendor and vendee to bind those who claim under them. The party had obtained possession of the land from the covenantor, with knowledge of the contract he had entered into. That case could not stand with this case if the order of the Master of the Rolls was wrong. My opinion is they are both right, and that this motion must be refused, with costs.
This was the petition of Sophia Mary Arnold, a legatee under the will of her father, and it stated that George Arnold, a Lieut.-Colonel in the East India Company's service, by his will, dated the 18th of September 1828, gave and bequeathed to his dear child, Sophia Mary Arnold, the petitioner, the sum of 15,0001. stock, to be kept in trust by his executors till she should attain the age of twenty-one years, or marry with the consent of her mother and the half of his executors then living, whichever might happen first, when this sum, with the accumulated interest, was to be settled on the said Sophia Mary Arnold, but failing her attaining the age of twentyone years, or having issue by such marriage, then the sum was to devolve upon persons therein mentioned. The petitioner was an infant at the death of the testator, but had since attained the age of twentyone, without having been married. The bill was filed for the administration of the estate of the testator ; the petitioner prayed that her share might be transferred into her name by the executors. The only question raised was, whether the petitioner was entitled to the legacy absolutely, or whether it was to be settled upon her.
Mr. Bethell and Mr. Piggott, for the petitioner, contended that the words “to be settled" in the testator's will were too vague to be given effect to by the Court ; had the legacy been directed to be settled on her and her children, it would have been different. They cited
Young v. Macintosh, 13 Sim. 445.
Law J. Rep. (n.s.) Chanc. 48.
Mr. Joshua Williams appeared for other parties.
Legacy-Direction to settle.
A testator gave to his daughter the sum of 15,0001., to be kept in trust by his executors till she should attain the age of twenty-one, or marry with consent, whichever might first happen, when this sum was to be settled on his said daughter; but failing her attaining twenty-one, or having issue by such marriage, then the money to devolve upon others. The daughter attained the age of twenty-one, without having been married :-Held, that she was entitled to
The Vice CHANCELLOR. — It is plain that the testator had only a confused notion of what he intended. There is no direction to settle, except in the event of such a marriage as that contemplated, namely, a marriage before twenty-one with the consent of the mother and half of the executors; the testator goes on to say, “failing her attaining the age of twenty