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* condition or restriction is inserted, which is shown, either by its nature, or position of the property, or words of the deed, or other evidence, to be inserted for the benefit of the other lots, there is created a perpetual servitude apon the land in favor of the other lots": Washburn on Easements, 4th ed., 115. The following statement of the rule was made by Mr. Justice Soule, in a caso in Massachusetts: “It often happens that owuers of land, which they design to put into the market in lots for dwelling-houses, insert in the deeds of the several lots a uniform set of restrictions as to the purposes for which tho land may be used, and as to the portions of it which may be covered by buildings. So far as these restrictions are reasonable in their character, they are upheld and enforced by courts of equity in favor of the original owner, so long as he continues to own any part of the tract for the benefit of which the restrictions were created, as well as in favor of the owner of any one of the lots into which the tract was divided, and against the owner of any of the lots who attempts to set the restrictions at naught": Sanborn v. Rice, 1:9 Mass. 387, 396. “That such a purpose is a legitimate one, and may be carried out consistently with the rules of law, by reasonable and proper covenants, conditions, or restrictions cannot be doubted. Every owner of real property has the right so to deal with it as to restrain its use by his grantees within such limits as to prevent its appropriation to purposes which will impair the value or diminish the pleasure of the enjoyinent of the land which he retains. The only restriction on this right is, that it shall be exercised reasonably, with due regard to public policy, and without creating any unlawful restraint of trade *: Whitney v. Union R'y Co., 11 Gray, 359; 71 Am. Dec. 715. Nor can there be any doubt that in whatever form a re. straint is placed on real estate by the terms of the grant, whether it is in the technical form of a condition or covenant, or of a reservation or exception in the deed, or by words which give to the acceptance of the deed by the grantee the force and effect of a parol agreement, it is binding, as between the grantor and the immediate grantee, and can be enforced against him by suitable process, both at law and equity: Whitney v. Union R’y Co., 11 Gray, 359; 71 Am. Dec. 715.
The fact that the deed contains a condition of forfeiture of the estate and reverter of title for a violation of the covenant does not oust the remedy of the covenantes in equity. On the contrary, the remedy in equity, being less severe to the vendor, is more reaso
sonable, and hence to be preferred: Watrous v. Allen, 57 Mich. 362; 58 Am. Rep. 363. That the fact that a penalty or forfeiture is imposed for doing a prohibited act affords no objection to the interposition of equity to enjoin the doing of the act, see Coles v. Sims, Kay, 56; Barrett v. Blagrave, 5 Ves. 555; Harily v. Martin, 1 Cox, 26. On analogous grounds, specific performance will be decreed, notwithstanding the contract liquidates the damages: Fox v. Scard, 33 Beav. 327; Howard v. Woodward, 10 Jur., N. S., 1123. Equity will not enforce the condition of forfeiture, because equity does not decree forfeitures; that condition is onforceable only in the legal forum: Watrous V. Allen, 57 Mich. 362; 58 Am. Rep. 363. That equity will not enforce forfeitures, see Crane v. Dwyer, 9 Mich. 350; 80 Am. Dec. 87; White v. Port Huron etc. R. R. Co., 13 Mich. 356; Wing v. Railey, 14 Mich. 83; Horsburg v. Baker, 1 Pet. 232; Living. stone v. Tompkins, 4 Johns. Ch. 415; 8 Am. Dec. 598; Smith v. Jewett, 40 N. H. 539; Warner v. Bennett, 31 Conn. 468.
If the covenant of reservation is one which the parties have the right to make, the original covenantee will be entitled to the aid of a court of equity to restrain its violation as long as he lives and remains the owner of the property, although it may be a covenant persoval to him and not running with the land: Parker v. Nightingale, 6 Allen, 341; 83 Am. Dec. 632; White ney v. Union R’y Co., 11 Gray, 359; 71 Am. Dec. 715; Badger v. Board. man, 16 Gray, 559; Peck v. Conway, 119 Mass. 540.
There is, of course, no doubt that as between the covenantor and the cove. nantee the latter may maintain an action for dainages for a breach of the covenant; and it is equally clear that he may have an injunction to restrain its breach without showing actual damage: German v. Chapman, 7 Ch. Div. 271; Richards v. Revitt, 7 Ch. Div. 226; Hall v. Wesster, 7 Mo. App. 56, 62. And where there has been a sale of a large tract of land laid off into lots upon the condition of certain restrictions in the use of every one of the lots, which restrictions are inserted in every one of the deeds, one of the vendees, it has been held, is equally entitled to an injunction against another of the vendees to restrain him from violating the restrictions, irrespective of the question of actual damages: Hall v. Wessler, 7 Mo. App. 56, 62.
Where land is sold subject to such a restrictive covenant, and the lan. guage of the deed and the situation of the land with reference to other land of the grantor retained are such as to make it clear that the restriction in the deed upon the use of the land sold was intended for the benefit of the land retained, this is beld to create a negative easement, or, as the courts sometimes say, an equity in the land sold for the benefit of the land retained, such as binds all the successors in title of the land subject to the easement, provided they have notice thereof, express or constructive: Tulk v. Mochay, 2 Phill. Ch. 774; Whatman v. Gibson, 9 Sim. 196, 207; Mann v. Slephens, 15 Sim. 377; Coles v. Sims, Kay, 56, 69; Child v. Douglas, Kay, 560, 571; Jeffries v. Jeffries, 117 Mass. 185; Sanborn v. Rice, 129 Mass. 396; Parker v. Nightingale, 6 Allen, 341; 83 Am. Dec 632; Peck v. Conway, 119 Mass. 546, 549; Whitney v. Union R’y Co., 11 Gray, 359, 364;71 Am. Dec. 715; Renals v. Corlishaw, 9 Ch. Div. 125, 129; affirmed, 11 Ch. Div. 866; Clark v. Martin, 49 Pa. St. 289; Western v. McDermott, L. R. 1 Eq., 499, 504; affirmed, L. R. 2 Ch. 72; Hills v. Miller, 3 Paige, 254; 24 Am. Dec. 218; Barrow v. Richard, 8 Paige, 354; Brouwer v. Jones, 23 Barb. 153; Linzee v. Mixer, 101 Mass. 512; Gilbert v. Peteler, 38 N. Y. 165; 97 Am. Dec. 785; Atlantic Dock Co. v. Lear. itt, 54 N. Y. 35; Watrous v. Allen, 57 Mich. 362; 58 Am. Rep. 363. This doctrine is variously expressed in judicial opinions. Such a restriction has been held to be in the nature of a servitude, the benefit of which would become attached to the other estates retained or contemporaneously or subse. quently conveyed by the grantor as a legal right or easement, and would pags with them as appurtenant: Jeffries v. Jeffries, 117 Mags. 185. To the same effect are Peck v. Conway, 119 Mass. 546, 549; Whitney v. Union R'y Co., 11 Gray, 359, 364; 71 Am. Dec. 715. The doctrine has been expressed with great clearness by Bigelow, J., in the case last cited, which may perhaps be regarded as the leading American case on the question. The doctrine was thus expressed by Vice-Chancellor Hall, after reviewing the previous decisions in the English courts of chancery on the subject: “Any one who has acquired land, being one of several lots laid out for sale or building plats, where the court is satistied it was the intention that each one of the several purchasers shoull be bound by, and should as against the others have the benefit of, the covenants entered into by each of the purchasers, is entitled to the benefit of the covenant; and this right, that is, the benetit of the covenant, inures to the assign of the first pur. chaser, – in other words, runs with the land of such purchaser. .... This right," continued he, “exists not only where the several parties execute a mutual covenant, but wherever the mutual contract can be sufficiently established. A purchaser may also be entitled to the benefit of a restrictive covenant entered into with his vendor, upon their heirs, where bis vendor has contracted with him that he shall be the assign of it; that is, of the benefit of the covenant. And such a covenant need not be ex. pressed, but may be collected from the transaction of sale and purchase. In considering this, the expressed or otherwise apparent purpose or object of the covenant, in reference to its being intended to be annexed to other prop. erty, or to its being only obtained to enable the covenantes more advanta geously to deal with his property, is important to be attended to. Whether the purchaser is the purchaser of all the land retained by his vendor when the covenant was entered into is also important. If he is not, it may be im. portant to take into consideration whether his vendor has sold off part of tho land 80 retained, and if he has done so, whether or not he has so sold subject to a similar covenant; whether the purchaser claiming the benefit of the coveLant has entered into a similar covenant may not be so important": Renale v. Coulishar, 9 Ch. Div. 125, 129. This decision was affirmed on appeal, and one of the lords justices (Baggallay) went so far as to adopt entirely the language of Vice-Chancellor Hall, above quoted.
It is not to be supposed from the foregoing that it is at all necessary, in order to have such a covenant enforced for the benefit of adjoining or adja. cent land, that it should be, in a technical sense, a covenant running with the land conveyed by the deed which contains the covenant. “The preciso form or nature of the covenant or agreement is quite immaterial. It is not essential that it should run with the land. A personal covenant or agreement will be held valid and binding in equity on a purchaser taking the estate with notice. It is not binding on him merely because he stands as an assignee of the party who made the agreement, but because he has taken the estate with notice of a valid agreement concerning it, which he cannot equitably refuse to perform”: Whitney v. Union R'y Co., 11 Gray, 359, 364; 71 Am. Dec. 713, 718; opinion by B gelow, J. In the leading Euglish caso in which the principle upon which courts of equity grant relief was formu. lated and applied by Lord-Chancellor Cottenhamn, that eminent judge said: " That this court has jurisdiction to enforce a contract between the owner of land and his neighbor purchasing a part of it, that the latter shall either use or abstain from using the land in a particular way, is what I never knew disputed. Besides that, the covenant being one which does not run with the laud, this court cannot enforce it. But the case is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by the vendor, and with notice of which he purchased. Of course the price will be affected by the covenant." And again he said: “That the question does not depend upon whether the covenant runs with the land is evident from this, that if there was a mere agreement, and no covenant, this court 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 ": T'ulk Moxhay, 1 Phill. Ch. 774, 777; quoted in Keates v. Lyon, L. R. 4 Ch. 222, and recognized in Child v. Douglas, Kay, 560. Quoting this language, it has been addled by Lord Justice Selwyn: “The questions which have arisen with re. spect to the devolution of the benefit of covenants of this kind have been decided upon similar principles, and equally without reference to any tech. nical objections depending upon the covenants running or not ruuning with the land": Keates v. Lyon, L. R. 4 Ch. 223. So in a later case, it is said by Vice-Chancellor Hall: “It is now well settled that the burden of a covenant entered into by a grantee, in fee, for himself, his heirs and assigns, although not running with the land, at law, so as to give a legal remedy against the owner thereof for the time being, is binding upon the owner of it for the timo being, in equity, he having notice thereof ": Renals v. Cowlishaw, 9 Ch. Div. 125, 129. It may be suggested, though not with absolute confidence, that the only distinction under this head is this: if the covenant is one which tech nically runs with the laud, it may bind the successors in title of the original covenantor, irrespective of the question of notice; for they would be held to take the land subject to any burdens attaching to it under the strict rule: of law, whether they had notice of such burdens or not; whereas if the covenant does not run with the land, they must have notice of it, actual or construc. tive; otherwise they occupy in respect of it the attitude of bona fide purchasers without notice, and it cannot be enforced against them in a court of equity.
Where the covenants are mutual, there is no difficulty whatever in dealing with this question. Thus where the owner of a particular piece of land, on which a row of houses was intended to be built, executed a deed reciting that it had been laid out, and was intended to be dealt with in a particular manner, and declared that it should be a general and indispensable condition of the sale of all or any part of that land that the several proprietors, for the time being, should observe and abide by the several restrictions and stipula. tions therein contained, and that he himself would at all times observe the like restrictions and stipulations, and these restrictions and stipulations were also enforced by mutual covenants, — although the question afterwards arose between subsequent purchasers of different portions of this piece of land, – it was lielu the owner was bound by, and that the other was entitled to en. force, the covenants: Whatman v. Gibson, 9 Sim. 196; decision by Vice-Chan. cellor Shadwell. But while, in the absence of special circumstances rendering the enforcement of such a covenant inequitable, which will be spoken of here. after, the fact that the grantor entered into similar covenants on his part in respect of the land retained places the right of a successor in title of such land to equitable relief in the form of an enforcement of the covenant or of an injunction to restrain its violation, entirely beyond question, yet it is not to be inferred from this that it is at all necessary, in order to such equitable relief, that there should be a mutuality of covenants. This is made very clear by the opinion of Sir W. Page-Wood (afterwards Lord Hatherley). Ha ruled that the objection to a motion for a restraining order that there were no reciprocal covenants was “no real objection.” “It only amounts to this," said he, " that the defendant, Douglas, has covenanted with the vendor not to perform certain acts, and has not thought fit to make the vendor enter into a covenant with him to take similar covenants from the future purchasers of the remaining land. The reciprocal advantage he reobtained by Douglas is really the conveyance of the land; and it cannot be said that for the want of a reciprocal benefit which he did not stipulate for he cannot be compelled to perform that which he has expressly covenanted to do.” Further on, he said: “I have felt some difficulty throughout in seeing how reciprocity could have anything to do with the question. Where a part of the remaining property of the vendor has been sold to another person, who must be said to havo bought the benefit of the former purchaser's covenant, and more especially when the subsequent purchaser has entered into a sinilar covenant on his own part, he must be said to have done this in cousivleration of those bene. fits, and even whether he actually knew or was ignorant that this covenant was in fact inserted in the other purchaser's deeds, because he must be taken to have bought all the rights connected with this portion of the land”: Child v. Douglas, Kay, 560, 569-571.
Where an owner of property divides it and sells a portion of it, and inserts In the deed of conveyance a restriction as to the use of the portion sold, it is very easy to insert in the deed a statement that this restriction is intended for the benefit of the land retained; for, as we shall see hereafter, this will not be presumed in all cases, and cases are found in the books where the absence of such a statement has been regarded as an important ingredient in a collection of circumstances influencing the court in its determination to refuse equi. table relief. See, for instance, Renals v. Cowlishaw, 9 Ch. Div. 125; affirmed, Il Ch. Div. 866. But it is not to be inferred that it is at all necessary to equitable relief that this purpose should be expressed in the deed. If from the situation of the land retained with reference to that conveyed, or from other attending circumstances, it becomes clear that it was the intention of the parties to grant a negative easement in the land sold for the benefit of the land retained, it does not make any difference whatever that this pur. pose is not expressed in the deed; and indeed in most of the cases where equitable relief has been granted the purpose was not so expressed: Mannv. Stephens, 15 Sim. 379; Patching v. Dubbins, Kay, 1; 2 Week. Rep. 2; McLean v. McCay, 21 Week. Rep. 798; Peck v. Conway, 119 Mass. 546; Green v. Creighton, 7 R. I. 1; Barrow v. Richard, 8 Paige, 351; 35 Am. Dec. 713; St. Andrero's Church Appeal, 67 Pa. Sto 512; Clark v. Martin, 49 Pa. St. 289. The reason is, that there could be no object in so stipulating except for the benefit of the land affected beneficially by the stipulation. As was said by Sir Montague Smith, in giving the judgment of the privy council: “There could be no object in stipulating that it (the land) should be left open for the benefit of both parties, unless it meant for the benefit of both parties as own. ers of the lands which adjoin the plat. Therefore the implication is natural and irresistible, that when the parties speak of leaving this piece open for the common benefit of both, they mean for the common benefit of both as bolders of the adjoining lands ": McLean v. McCay, 21 Week. Rep. 798.
According to a holding of the court of appeals of New York, it is not even necessary that the restrictive agreement should be put in any deed of conveyance, or that it should be shown by any writing. In that case, the owner of lots on both sides of a city street made a plan exhibiting a street as wid. eved eight feet on each side, and represented to several vendees of different lots that all the buildings to be erected on the lots which he had sold and should sell should stand back eight feet from the line of the street. The vendees erected buildings in conformity with this plan, none of them being restricted by their conveyances or bound by any covenant in respect to the extent or the mode of their occupation. It was held that a subsequent pur. chaser of one of these lots, with constructive notice of the facts, was not entitled, as against another purchaser, to build upon the eight feet adjoining the street. After conceding that the conclusion of the court could not be supported upon the principle that the eight-foot strip had been dedicated to public use, Sutherland, J., in giving the opinion of the court, said: “From the facts found by the judge at special term, it appears that when the plain. tiff Maxwell and others bought lots in St. Mark's Place of Davis they were shown the map or plan of St. Mark's Place, showing that the houses on both sides of the place were to be set back eight feet from the street, and that they bought on the assurance of Davis that that plan should be observed ip building on the place; that the strips of eight feet in width on both sides