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through Ames, J., said: “The only ground upon which the plaintiff can rest her claim that the restriction in question was intended to operate for the benefit of all the purchasers, and to establish a general plan of building by which each one would acquire a right in the nature of an easement in tho land pur. chased by the others, is to be found in the fact that in his transactions with two separate and independent purchasers the grantor conveyed a portion of the land in each case subject to the terms and conditions set forth in the bill of complaint. It is true that of these conditions the one prohibiting the prosecution of any offensive trade or manufacture upon the premises, or the using of them for the keeping of swine, or of a livery-stable, would in practice bo beneficial to the neighborhood generally. But it is to be remembered that the grantor had himself built a dwelling-house in that immediate neighbor. hood, and a provision which he made for the prevention of nuisances may have been intended for the benefit of that particular house. It is undoubt. edly true, and has often been decided, that where a tract of land is subdivided into lots, and those lots are conveyed to separato purchasers, subject to conditions that are of a nature to operate as an inducement to the purchase to give to each purchaser the benefit of a general plan of building or occupation, so that each shall have attached to his own lot a right in the nature of an eagement or incorporeal hereditament in the lots of the others, a right is thereby acquired by each grantee which he may enforce against any other grantee. But in the case at bar there is nothing from which the court can infer that the restriction contained in the deed from Heath to the defendant was intended for the benefit of the estate now owned by the plaintiff. No such pnrpose can be gathered from the plan, or from the situation of the property with reference to other land of the grantor. It purports to be a condition imposed by the grantor, and the deed points out the mode in which he, bis heirs or devisees, may enforce it. Neither of the deeds under which these parties respectively claim purports to give to the grantee any such right against any other grantee. For aught that appears, the con. dition may have been intended for the benefit of the grantor or his family, as long as they continued to own the dwelling-house. The burden of proof is upon the plaintiff, if she insists upon giving to that condition any wider application, and this burden we do not find that she has sustained ": Sharp v. Ropes, 110 Mags. 381, 385.
Another illustration of the foregoing principle is found in a case decided by Vice-Chancellor Shadwell in 1839, where a deed dated in 1827, made between J. Pitt, of the one part, and the other persons who had executed the deed, of the other part, recited that Pitt, being seised in fee of the lands de. lineated in the plan annexed (being a plan of a town called Pittville), and baving in contemplation to establish a spå at or near the north end of the lands, and to erect a pump-room at or near the spot marked on the plan, and to lay out the rest of the lands for buildings, pleasure-grounds, roads, etc., bad caused the plan to be drawn, whereby the mode in which the lands were intended to be laid out, and the purposes for which they were intended to be converted and used, were described, in order that the beauty and regularity of the whole design might be forever thereafter preserved, subject only to mch alterations as should be made or approved of by Pitt, his heirs or assigns, and as should not destroy the general beauty of the same design, and that each of the other parties to the deed had purchased, or agreed to pur. cbase, one or more of the pieces of land described in the plan, as set out for building. The deed then contained covenants by Pitt, his heirs and assigns, to build the pleasure-grounds, roads, etc., and to keep them in repair, and other covenants prescribing the manner in which the pleasure-grounds, roado, etc., should be enjoyed and used by the occupiers of the houses to be erected on the building.ground, and that Pitt, his heirs or assigns, would, in every agreement which should be entered into by him or them for the sale of any part of the said ground, require the purchaser to covenant with him, his heirs and assigns, not to erect any messuage on any part of the ground which might lessen in value any other of the messuages erected or to be erected at Pittville. Thereafter, in 1833, Pitt agreed to sell lots 2, 3, 4, and 6 of the building-ground to Stokes, and Stokes agreed with Pitt to erect throe houses on those lots, and agreed with him that each house should stand back twenty. five feet from the western boundary of the lots, and that he (Stokes), bis heirs or assigns, would not do or suffer to be done on the lots, or in any building to be erected thereon, any act, deed, etc., which might be deemed a paisance, injury, or annoyance, or which might lessen in value any adjoining or noighboring lands or property, or any houses to be erected thoroon. Stokes built two houses on lots 2 and 3, and in 1833 Pitt conveyed these lots to him, and Stokes, for himself, his heirs and assigns, entered into a covenant with Pitt, his heirs and assigns, with respect to these lots and the houses thereon, sim. ilar to the last-mentioned stipulation in the agreements Stokes subsequently gave up to Pitt lots 4 and 5, of which he had the contract of purchase, as already stated, and abandoned his contract of purchase as to them, and then sold his house on lot 3 to the plaintiff. Pitt afterwards agreed to sell lots 4 and 5 to Creed. The agreement between Pitt and Creed stipulated that the house to be erected on those lots should stand back, not twenty-five but ten feet at least froin the western boundary thereof, and it also contained a stipulation for protecting the adjoining property from injury, sto., similar to that in the agreement with Stokes. Both Stokes and Creed executed the deed of 18:27. Creed began to build a house on his lots thirteen feet distant from the western boundary, which was twelve feet in advance of the plain. tiff's house, and which the plaintiff alleged would be a nuisance or an annoy. ance to hiin, and would lessen the value of his house, and consequently would be a violation of the covenant in the deed of 1827, and of the agreement of 1833. The vice-chancellor held that the plan annexed to the deed of 18:07 was merely a general plan, and was not intended to be strictly adhered to, but that its vieta Is might be varied by Pitt, and, with his sanction, by the purchasers froin bills, and that the plaintiff was not entitled to avail himself, as against either Creed or Pitt, of the covenants of 1827 or of the agreement of 1883 for the purpose of preventing the completion of Creed's house in the manner intended, or the performance by Pitt of the agreement with Creed. The foregoing statement is transcribed from the syllabus of the case. The report of the case, and also the opinion of the vice-chancellor, are long and tedious. The vice-chancellor placed his judgment substantially on the ground that in the agreement of 1833 the purchaser, Stokes, was not covenanting as to the mode of using lots 2 and 3 so as to affect lots 4 and 5, or as to the mode of using lots 4 and 5 so as to affect lots 2 and 3. He said: “If he was the purchaser of the whole, it would be absurd to say that he should be restricted in the use of a part, 80 as not to injure the remainder; for, being the owner of the whole, he would not, of course, use one part so as te injure the remainder. In my opinion, therefore, no part of this covenant in the agreement of April, 1833, is capable of being made to bear on the ques. tion." Secondly, he took the view that Stokes having failed to carry out his agreement of purchase as to lots 4 and 5, which Pitt afterwards sold to the defendant Creed, the covenants of 1833 in respect of those lots lapood, anil fell back into the hands of Creed, and the case became exactly as though snch covenants had never been entered into; and thirdly, that inasmuch as the plaintiff could claim only under Stokes, and as Stokes had not taken any stipulation from Pitt for enforcing against Pitt the stipulatiou which Part might have enforced against Stokes, the whole matter was left at large: Schreiber v. Creed, 10 Sim. 9.
A case was decided in the English court of appeal in 1876 on the follow. ing state of facts: The owner of an estate granted a lease of a plat of ground to A, who covenanted that he, his executors, administrators, and assigns, would not, during the term, do on the premises anything which should be an annoyance to the neighborhood or to the lessor or liis tenants, or which shoald diminish the value of the adjoining property, and that he would not build, or allow to be built, on the ground any building or erection, without first submitting the plans to the lessor and obtaining his approval. Some years later, the landlord granted a lease of an adjoining plat to B, who en. tered into a similar restrictive covenant. Within twenty years, A cominenced, with the approval of the lessor, to build upon his ground, so as to darken the windows of B's house. B thereupon brought the pre-ent bill in equity to restraio A from erecting, and also to restrain the lessor from approving, the building which A was about to erect. The court held that B was not entitled to relief, either on the principle that the lussor could not derogate from his grant, or on the ground that the restrictive covenants in A's lease inared to the benefit of B. In giving his judgment, James, L J., said: “The defendants, the Crystal Palace Hotel Company, are owners of a property under the demise of a term of years, and are erecting on it a build. ing which may lawfully be erected, unless they have put themselves under an obligation not to do so. The plaintiff is the owner of an adjoining property ander another demise for a term of years from the same lessors, of later date than that of the defendants. He therefore cannot have acquired any rights against them, except under some grant which could lawfully be made. Now, the lessors could not grant anything so as to derogate from the rights of their prior grantee. The respondent therefore was obliged to re«t bis case on the covenants entered into by the defendant's pre-lecessor entitled with the grantor; and the question is, whether those corenants bring the case within the rule which says that the owner of two tenements who grants one of them cannot derogate from his own grant by anything he does on the property which he reserves, the property granted becoming entitled to ease. ments known as easements derived by the disposition of the own's of two tenements. The plaintiff contends that though the grantor, when he maile the grant ander which plaintiff claims, had ceased to lie the owner of the dofendant's tenemnent, he had a right which he could have used in such a way as to prevent the plaintiff's enjoyment of his property being interfered with in any way in which the grantor would not have been allowed to inte.fre with it if he had retained the defendant's property, and that this interest brings the case within the rule as to the owner of two tenements. It would be a novel extension of that doctrine to hold that not only the grantor can. not do anything to derogate from his own grant, but that he is obliged to take active steps to prevent other persons from doing what he migit not himself do. It cannot, in my opinion, be said that a right under a covenant is prop. erly within the meaning of this rule. Then the plaintiff says: "You, my lessor, couli, under the covenants entered into with you by your other lessee, have prevented this erection; you had and have that right; you have granted me a piece of ground with a house on it, and you ought to enforce those covenants for my benefit.' Now, when the plaintiff took his loase he had no knowledge of the nature of the title in the adjoining property; all be knew was, that the piece of property adjoining his had once been part of the same ostate; he knew nothing of the covenant; the grant to him contains no no tice of it; and it would be strange to say that a man who has taken a core nant for his own benefit can be prevented from dealing with it for his owu benefit because he has granted parcels of land to other people. The coredant is not mentioned in the plaintiff's lease, and it cannot have been the intention of the parties thus to restrict the use of a covenant which was entered into, not for the benefit of the owner of the estate, that he might be able to make the most of it. It would be too great an extension of the doc. trine of implied obligation to raise by implication a right in the nature of an oquitable assignment of the benefit of the covenant. There was no bargain as to enforcing the covenant for the benefit of the plaintiff, and we cannot imply one": Master v. Hansard, 4 Ch. Div. 718. The other larda justices concurred, in separato opinions.
JEPSON 0. KILLIAN.
(151 MASSACHUSETTS, 693.) DHORASED CONTRACTOR — RIGHT TO SHARE IN PROTIS. - It several porsons
secure and enter into a contract for the doing of work, and commence its performance, and then one of them dies, and others perform the contraot, thoy must account to the representativas of their docoased fellow-contractor for his share of the profite J. H. Butler, for the defendants. H. E. Ware, for the plaintiff.
HOLMES, J. This is a bill in equity for an account, brought by the administrator of one Putterill, seeking to recover a share of the profits arising from the performance of a contract by which the deceased and the defendants undertook to put in a brick conduit and to make certain excavations for the Boston Heating Company. The answer admits the contract, and the master finds that the deceased rendered some services in securing and in performing it. But he died very shortly after it was made, and the defendants went on and did nearly all the work without his aid.
The main contention of the defendants is, that Putterill's death put an end to his interest in the contract, and that his administrator is not entitled to any part of the profits. But nothing appears in the pleadings or in the master's report to take the contract with the heating company out of the general rule that the survivors must account with the representative of their deceased fellow-contractor for his interest. It does
that even as between the deceased and the heating company his estate did not remain liable for the performance of the contract. But whether it did or not, it was liable, so far as appears, to make good its share of any loss to the defendants, and was entitled to share in any gain: Schenkl v. Dana, 118 Mass. 236; King v. Leighton, 100 N. Y. 386, 393, 394; McClean v. Kennard, L. R. 9 Ch. 336; Newell v. Humphrey, 37 Vt. 265, 270. See Freeman v. Freeman, 136 Mass. 260; 142 Mass. 98.
However the value of Putterill's interest would have been ascertained had the question arisen before performance, there is no doubt that, as the defendants have gone on and have perforined the contract, his estate has a right to share the profits realized. The master's ruling to that effect is correct, and the defendant's exceptions thereto must be overruled: McClean v. Kennard, L. R. 9 Ch. 336; King v. Leighton, 100 N. Y. 386.
The report opens no other question. The master finds that Putterill's death made it necessary to employ the plaintiff in his private capacity, and has deducted the cost of his service from Putterill's share. This appears to be proper, and is not excepted to. The master makes no further allowance to the defendants, and there is nothing to show, as matter of law, that he ought to do so: See Schenkl v. Dana, 118 Mass. 236, 239; Robinson v. Simmons, 146 Mass. 167, 177.
SORVIVORSHIP OF ACTIONS. — As to what actions survive, roo extended note to Boor v. Lovrey, 63 Am. Rop. 525–539; note to Susong v. Vaiden, 30 Am. Rop. 66-68