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, 11 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 purpose 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: Mann v. 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. Andrew's Church Appeal, 67 Pa. St. 512; Clark v. Martin, 49 Pa. St. 989. 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 owners 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 holders 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 ened 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 purchaser 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 plaintiff 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 in building on the place; that the strips of eight feet in width on both sides

It is to be presumed

of the street should not be built upon, but kept open. that they would not have bought and paid their money except upon this assurance. It is to be presumed that, relying upon this assurance, they paid a larger price for the lots than otherwise they would have paid. Selling and conveying the lots under such circumstances and with such assurances, they therefore bound Davis, in equity and good conscience, to use and dispose of all the remaining lots so that the assurances upon which Maxwell and others had bought their lots would be kept or fulfilled. This equity attached to the remaining lots, so that any one subsequently purchasing from Davis any one or more of the remaining lots, with notice of the equity as between Davis and Maxwell and others, the prior purchasers, would not stand in a different situation from Davis, but would be bound by that equity": Tullmadge v. East River Bank, 26 N. Y. 105, 107. The meaning of this, of course, is, that such an equity or negative easement in land for the benefit of adjacent land may be created by a parol agreement or understanding between the original owner and purchasers of different parts of the land, and that notice of this agreement, actual or constructive, will bind a subsequent purchaser of one of the tracts in like manner as it would have bound the original owner, from whom he purchased. This case stretches the doctrine of preceding cases further than any case in the books known to the writer.

It has been held to be sufficient that the defendant buys with notice that it is claimed that there are restrictions which will prevent the defendant from acquiring a right, as purchaser of the lots, to build outside of a prescribed building line. It has been also said that the uniformity of the position of all the houses which have previously been built, namely, the fact that they all front upon one line, is probably sufficient alone to put a subsequent purchaser on inquiry as to the existence of an agreement for a building line: Tallmadge v. East River Bank, 26 N. Y. 105, 111. It is the settled law that in order to sustain a proceeding in equity to restrain the violation of such a restriction it must be shown that the defendant took the land with notice, either express or constructive, that the restriction existed, and that it was intended for the benefit of the plaintiff's estate. In declaring this principle, it has been added: "It is vital to the rights of the parties, because, as the case stands, the plaintiff is not entitled to avail himself of the equitable principle that the defendant has taken his estate with notice of a stipulation for the benefit of the estate now owned by the plaintiff which in equity, by accepting the grant, the defendant would be bound to observe": Badger v. Boardman, 16 Gray, 559, 561; citing Whitney v. Union R'y Co., 11 Gray, 359; 71 Am. Dec. 715. In conformity with this view, the general rule has been stated to be, that if parties purchase land with notice of a covenant concerning it, but which does not run with the land, equity will not permit them to do anything contrary to the true meaning of that covenant: Tulk v. Moxhay, 2 Phill. Ch. 774; Patching v. Dubbins, Kay, 1. But on this subject it has been ruled that the owner of the land charged with such servitude is bound by the covenants in the deed of his remote grantor by which it was created, although it is not mentioned at all in the deed under which he immediately takes, that is, in the deed to him, and although he has no knowledge of it in fact; for as he derives his title under a deed which contains the covenant, he is bound to take notice of its provisions: Peck v. Conway, 119 Mass. 546; citing to this point, Whitney v. Union R'y Co., 11 Gray, 359; 71 Am. Dec. 715. Upon the question, What will amount to evidence of notice in a particular case? it has been ruled that where land had been laid out for building a row of houses on a general plan, according to which no

building was to be erected within six feet from the projected road in front of the row, a purchaser of oue of the plats, being aware of the general scheme, and buying subject to the terms of the printed form of contract relating to the whole estate, which restrained him from building within six feet from the road, and knowing that another plat had been previously sold and built upon according to the general scheme, must have been considered to have known that the previous purchaser had bought subject to a similar restriction: Child v. Douglas, Kay, 565. It is believed that in respect of this question of notice there is a distinction between notice of the fact of the covenant and notice of the effect of it. The distinction is believed to be that stated above, that the owner of land will be conclusively presumed to have notice of any covenant in a deed which constitutes his chain of title, and that in so far as that covenant necessarily burdens his land he takes subject to it, whether he has actual notice of it or not. This seems to be an unavoidable conclusion from the truism that a grantee takes only what his grantor conveys. On the other hand, although there may be a restrictive covenant in his chain of title, it does not follow that he will have notice from the words of the covenant themselves that the effect of the covenant is to impose a servitudə upon his land for the benefit of adjoining or adjacent land belonging to some one else; the language of the deed may be equally consistent with a purpose on the part of the covenantee to impose the restriction for his own personal benefit to effect some present or collateral purpose of his own. It is upon this distinction that nearly all the cases separate.

It must be constantly kept in mind that in every case of this kind the paramount and controlling question to be determined by the chancellor upon an interpretation of the deed containing the covenant, in connection with the surrounding circumstances and other applicatory evidence, is, whether the covenant was really intended for the benefit of the land retained, or whether it was intended to subserve some purpose personal to the covenantee, so that after parting with the land retained he might be still at liberty to release the covenant at his pleasure. As a general rule, such a covenant will be regarded as having been intended for the benefit of other land retained by the covenantee, since, as a general rule, it could have no other purpose. This will be obvious if we consider the case of an owner of two adjoining city lots selling one of them and imposing upon it a restriction as to the manner in which it shall be used; prohibiting its use for a livery-stable, a dram-shop, or the like; or prescribing a building line within a given distance from the line of the street on which it fronts. In such a case it is difficult to understand that the covenant could have had any other purpose than to benefit the land retained by prohibiting uses of the land sold, which, though not unlawful, would work more or less annoyance to an occupier of the land retained, and further diminish its value. If after imposing such a restriction upon the use of the land sold for the benefit of the land retained the owner subsequently sells the land retained to another grantee, it is undeniably logical and obviously just that the negative easement or equity which he has created in the land first sold for the benefit of the land afterwards sold passes to the second grantee and to his successors indefinitely. At least, equity will so regard it; for this is the sense and substance of the engagement. In giving the opinion of the supreme court of Pennsylvania so holding, Lowrie, C. J., said: "In a proceeding in the common-law form, it would be necessary to inquire into the form in which the right is reserved, in order to decide whether it should be sued for as a condition or a covenant, or as a simple con.ract. But in the equity form of proceeding we inquire only into its sub

stantial elements,

What does it assure, and to whom? Here the duty of the defendant is so plain that one may read it running; it is clearly inscribed on every link of the chain of his title to the lot. He took his title expressly on the terms already briefly mentioned. He was not to erect on the back part of his lot any building higher than ten feet, afterwards changed to eleven. To whom, then, does he owe the duty? No one doubts that it is to the grantor, who reserved or imposed the duty, and to his heirs and assigns. But did the grantor reserve this duty to himself, his heirs and assigns, as a mere personal duty, and thus retain in himself or them the vain right of saying: "That lot is not mine, but the owner is subject to my pleasure in the mode of building on it'? Common sense forbids this, and the law would not allow itself to be troubled with such vain engagements. . . . . Common sense cannot doubt its purpose, and thus it becomes plain that the duty created by the condition and restriction is a duty to the owner of the adjoining lot, whoever he might be. Very plainly, also, it is a duty that admits the right of the owner of the adjoining lot to have the privilege or appurtenance of light and air over the defendant's lot, and that admits this to be so far subject or servient to that, that the buildings on this must, for the benefit of that, be so limited in height, according to the condition of the deeds. So such stipulations are always regarded when the form of remedy is selected and allowed, which can admit of treating the case according to the very substance of the contract": Clark v. Martin, 49 Pa. St. 289, 297.

But in many cases the courts have found that such covenants were not intended by the covenantee for the benefit of any land retained by him. In one case, Sir C. J. Selwyn, L. J., answering an argument that such was necessarily the effect of such a covenant, said: "It is obvious that such a definition does not meet all cases, for cases may be put, in which a vendor might lawfully and reasonably insist upon such covenants, even when the covenants comprised the whole of the property to which he was entitled at the date of the covenant, as in the case of the purchase and sale of a strip of land adjoining a large park by a person who had at the time no interest in the park, but who hoped to inherit or purchase it. Assuming the vendor of the strip of land to purchase or inherit the park, and to sue the purchaser for breach of the covenant, the purchaser of the strip of land would, in a court of equity, be unable to justify a violation of the covenant by reason of the injury sustained by the vendor having arisen only in consequence of his subsequent acquisition of the park": Keates v. Lyon, L. R. 4 Ch. 218, 227. The doctrine, then, is, that an owner or lessee of land cannot have relief in equity in the form of an enforcement of such a covenant, or have an injunction against its violation, unless the court can infer from the language of the deed in which the covenant is contained, when construed in reference to the surrounding circumstances, an intention, on the part of the parties to the deed, to insert the covenant therein for the benefit of the particular property acquired by the plaintiff. Affirming this principle, it has been said: "Generally, when such a right or privilege is reserved, the purpose intended to be accomplished by it is stated in the conveyance, or can be gathered from a plan referred to therein, or from the situation of the property with reference to other land of the grantor. All parties then take with notice of the right reserved and the burden or easement imposed": Badger v. Boardman, 16 Gray, 559, 560; opinion by Bigelow, C. J. In another case the doctrine was thus stated by the same learned judge: "It is doubtless true that such may be the effect of a condition in a class of cases where it is apparent that the condition was annexed to a grant for the purpose of improving or rendering more beneficial

and advantageous the occupation of the estate granted, when it should become divided into separate parcels; and be owned by different individuals, or when the manifest object of a restriction on the use of an estate was to benefit an other tract adjoining to or in the vicinity of the land on which the restriction is imposed. But in the absence of any fact or circumstance to show such purpose or object, a condition annexed to a grant can have no effect or operation either at law or in equity beyond that which attaches to it by the rules of the common law. The benefit of the condition would in such cases inure only to the grantor and his heirs or devisees, and the burden of it would rest on the estate to which it was annexed, and on those who held it or any part of it subject to the condition. Indeed, no restriction on the use of land, and no condition annexed to its possession and enjoyment, can be for the benefit of the grantee or those holding his estate in the granted premises, unless it be as a consideration of some restriction on other land, which may operate as an advantage or convenience in the use and occupation of the granted premises. Inasmuch as a grantee can restrict the use of land of which he is the owner according to his own will and pleasure, it is clear that he can derive no bene. fit from a restriction or condition, as such, imposed on its use or enjoyment by any prior grantor ": Jewell v. Lee, 14 Allen, 145, 149; 92 Am. Dec. 744. Where the covenant is by the vendor himself, the rule is, that the restriction is taken most strongly against him, modified by the necessity of giving effect to every portion of the instrument, so far as it can reasonably be done. A good illustration of this is found in a case where the vendor of a number of building lots in a terrace inserted in each deed a covenant, on his part unexplained by any recital in the deed, that no building should be erected on any part of the land of the vendor lying on the east side of the terrace, and opposite to the plat of land thereby conveyed. It was held by Sir W. Page-Wood, V. C. (afterwards Lord Hatherley), that the words above Italicized were not merely descriptive of the position of the land, but that they restricted the general meaning of the former words; and that the covenant applied only to that part of the land which lay immediately opposite the lot of the covenantee in the particular deed. In the course of his opinion, he said: "There is no recital in this deed of an intention of any kind, and therefore the question is narrowed to the very words of the covenant itself. I had at first an inclination of opinion that if the words were doubtful, and it could be construed in favor of the defendants, the general rule would be this: that it being equivalent to a grant on the part of the vendor, the construction must be taken most strongly against the grantor. But, on the other hand, there is another rule of construction well established, namely, that it is right to give effect to every word, if it can reasonably and properly be done. I do not feel, therefore, at liberty to say that it is doubtful if in putting one construction upon this covenant I give complete effect to all the words, whereas I should be leaving a portion of the words without effect in giving to the covenant a contrary construction. If I take the construction of the plaintiff, I strike the words 'and opposite to the plat of land' out of the covenant; that is, the covenant would be just as intelligible in the sense of the plaintiff without those words as with them, or indeed much clearer. It would be effective if it were only any part of the land lying on the east side of the said terrace.' Those words alone would have given the plaintiff the right for which he now contends. Am I at liberty to say that the other words are superfluous, and wholly ineffective, and are merely thrown in as additional description? I do not think that would be a sound construction. The phraseology would be ill-selected. What I should have expected would have been lying on the east side of the

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