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 his vendor, and with notice of which he purchased." The person thus affected by the agreement as to the use of the land may be a purchaser, a lessee,2 or even, it has been decided, a mere occupant of the land. There is some difficulty in explaining this doctrine so far as it involves an enforcement in equity of rights which are denied at law, and in some cases in this country the right to relief in equity in such a case seems to be based, not on the English theory of relief against a purchaser with notice, but on the theory that, by the covenant, an easement is created. This latter theory is, however, itself unsatisfactory in some respects, and is in

Co., 51 N. J. Eq. 345; Burbank v. Pillsbury, 48 N. H. 475, 97 Am. Dec. 633; Town of Middletown v. Newport Hospital, 16 R. I. 319; Watrous v. Allen, 57 Mich. 362, 58 Am. Rep. 363; St. Andrew's Lutheran Church's Appeal, 67 Pa. St. 512; Frye v. Partridge, 82 Ill. 267; Hutchinson v. Ulrich, 145 Ill. 336; Peabody Heights Co. of Baltimore v. Willson, 82 Md. 186; Newbold v. Peabody Heights Co. of Baltimore, 70 Md. 493; McMahon v. Williams, 79 Ala. 288; Coudert ▼. Sayre, 46 N. J. Eq. 386; Kirkpatrick v. Peshine, 24 N. J. Eq. 206; Trustees of Columbia College v. Lynch, 70 N. Y. 440; Hodge v. Sloan, 107 N. Y. 244, 1 Am. St. Rep. 816; Hills v. Miller, 3 Paige (N. Y.) 254, 24 Am. Dec. 218.

2 Wilson v. Hart, 1 Ch. App. 463; Spicer v. Martin, 14 App. Cas. 12; Parker v. Nightingale, 6 Allen (Mass.) 341, 83 Am. Dec. 632. Mander v. Falcke [1891] 2 Ch. 554.

The theoretical difficulties of the doctrine are well presented in Sims, Covenants, c. 11.

• McMahon v. Williams, 79 Ala. 288; Tinker v. Forbes, 136 Ill. 221; Herrick v. Marshall, 66 Me. 435; Hogan v. Barry, 143 Mass. 538; Ladd v. City of Boston, 151 Mass. 585, 21 Am. St. Rep. 481; Beals v. Case, 138 Mass. 138; Peck v. Conway, 119 Mass. 546; Brown v. O'Brien, 168 Mass. 484; Chase v. Walker, 167 Mass. 293; Trustees of Columbia College v. Lynch, 70 N. Y. 440; Green v. Creighton, 7 R. I. 9; Tinker v. Forbes, 136 Ill. 221; Hutchinson v. Ulrich, 145 Ill. 336; Clark v. McGee, 159 Ill. 518; Muzzarelli v. Hulshizer, 163 Pa. St. 643; Fuller v. Arms, 45 Vt, 400.

sufficient to explain all the cases in which relief has thus been granted against an assignee of the land.

349. Character of agreement.

In England, an agreement will thus be enforced in equity against a subsequent purchaser or occupant only when it is restrictive of the use of the land, and not when it calls for the performance of some positive act by the occupant thereof." In this country, occasionally, an agreement not restrictive in its nature has thus been enforced. In the great majority of cases, however, the agreement enforced has been restrictive. Thus, agreements not to use land for building,' or for a particular business,1o or for other than residence pur

The covenants thus enforced against an assignee of the covenantor are, as hereafter stated, usually restrictions upon the character or location of the building to be erected, or business to be maintained, on the land, and such covenants are, in some of the cases last cited, said to create easements of light, air, and prospect. They are, however, sometimes enforced when their violation could hardly involve any interference with light, air, or prospect, as in the case of a deviation of a few inches from a building line. If easements are created by stipulations of this character, they may no doubt be enforced at law, though this does not appear to have been attempted, and, as easements constituting rights in rem, they could be enforced at law, even against the original covenantor, only by an action on the case or its equivalent, and not by an action of contract.

Haywood v. Brunswick Permanent Benefit Building Soc., 8 Q. B. Div. 403, 2 Gray's Cas. 493; Austerberry v. Corporation of Oldham, 29 Ch. Div. 750; London & S. W. Ry. Co. v. Gomm, 20 Ch. Div. 562, 5 Gray's Cas. 579. See De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329.

Carson v. Percy, 57 Miss. 97; Stehr v. Raben, 33 Neb. 437; Gould v. Partridge, 52 App. Div. (N. Y.) 40; Sharp v. Cheatham, 88 Mo. 498. See Whittenton v. Staples, 164 Mass. 319.

Tulk v. Moxhay, 2 Phillips, 774, 2 Gray's Cas. 478; Wood v. Cooper [1894] 3 Ch. 671; Peck v. Conway, 119 Mass. 546, 2 Gray's Cas. 508; Ladd v. City of Boston, 151 Mass. 585, 21 Am. St. Rep. 481; Phoenix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400.

10 McMahon v. Williams, 79 Ala. 288; Post v. Weil, 115 N. Y. 361.

11

poses, are thus enforceable, as are agreements not to build within a certain distance of the street, 12 or to erect no building of less than a certain cost,18 or of a style of construction other than that named.14

According to a few decisions, the agreement, even though restrictive, in order to be thus enforced against a subsequent purchaser, must "touch and concern" the land in favor of whose owner the agreement is made, by tending to the physical advantage of such land, it being insufficient that it increases its value indirectly by preventing the use of the adjoining property for a competing business.15 In England and New York, however, a different view apparently prevails.16

The right to thus enforce an agreement against a subsequent purchaser on equitable principles, is, at least in some jurisdictions, independent of the mode or incidents of its execution. It need not be a covenant,-that is, an agreement under seal,-and it is sufficient if it be oral, or merely

12 Am. St. Rep. 809; Collins Mfg. Co. v. Marcy, 25 Conn. 242; Watrous v. Allen, 57 Mich. 362, 58 Am. Rep. 363; Stines v. Dorman, 25 Ohio St. 580.

11 German v. Chapman, 7 Ch. Div. 271; Parker v. Nightingale, 6 Allen (Mass.) 341, 83 Am. Dec. 632; Trustees of Columbia College v. Lynch, 70 N. Y. 440.

12 Manners v. Johnson, 1 Ch. Div. 673; Linzee v. Mixer, 101 Mass. 512; Sanborn v. Rice, 129 Mass. 387; Ogontz Land & Improvement Co. v. Johnson, 168 Pa. St. 178; Coles v. Sims, 5 De Gex, M. & G. 1. 13 Bowes v. Law, L. R. 9 Eq. 636; Page v. Murray, 46 N. J. Eq. 325; Blakemore v. Stanley, 159 Mass. 6.

14 Keening v. Ayling, 126 Mass. 404; Landell v. Hamilton, 177 Pa: St. 23; Clark v. Martin, 49 Pa. St. 289.

15 Norcross v. James, 140 Mass. 188, 2 Gray's Cas. 511; Brewer v Marshall, 18 N. J. Eq. 337, 19 N. J. Eq. 537; Kettle River Ry. Co. v. Eastern Ry. Co., 41 Minn. 461; West Virginia Transportation Co. v. Ohio River Pipe Line Co., 22 W. Va. 600.

18 Luker v. Dennis, 7 Ch. Div. 227; Catt v. Tourle, 4 Ch. App. 654; Hodge v. Sloan, 107 N. Y. 244.

inferred from certain representations made upon the sale of land.17

350. Notice.

The notice to a purchaser necessary to render the agree ment enforceable against him in equity, as above stated, may be either actual or constructive.18 He is, it seems, charged with notice of anything showing or imposing such a restriction, which may be contained in a conveyance in the chain of title under which he claims.19 But he is not, it has been decided, chargeable with notice of a general plan by the uniformity of construction of buildings upon other lots sold.20

351. Persons entitled to enforce restriction.

The purchaser of a tract can enforce an agreement restrictive of the use of another tract, made with the former owner of both tracts, only if the agreement was originally intended to inure to the benefit of any such purchaser, or, in other words, was intended to benefit the land, rather than the promisee personally.21 Consequently, a vendee of a tract of land, seek

17 Spicer v. Martin, 14 App. Cas. 12; Mackenzie v. Childers, 43 Ch. Div. 265; Nottingham Patent Brick & Tile Co. v. Butler, 15 Q. B. Div. 261, 16 Q. B. Div. 778; Whitney v. Union Ry. Co., 11 Gray (Mass.) 359, 364, 71 Am. Dec. 715, 718; Tallmadge v. East River Bank, 26 N. Y. 105, 2 Gray's Cas. 497.

That the agreement need not be between parties to a conveyance, see Lewis v. Gollner, 129 N. Y. 227; Trustees of Columbia College v. Lynch, 70 N. Y. 440.

18 Wilson v. Hart, 1 Ch. App. 463; Spicer v. Martin, 14 App. .Cas. 12.

19 Peck v. Conway, 119 Mass. 546, 2 Gray's Cas. 508; Poage v. Wabash, St. L. & P. Ry. Co., 24 Mo. App. 199; Brewer v. Marshall, 19 N. J. Eq. 537; Duncan v. Central Passenger Ry. Co., 85 Ky. 525. See Norfleet v. Cromwell, 64 N. C. 1.

20 Bradley v. Walker, 138 N. Y. 291, overruling dictum in Tallmadge v. East River Bank, 26 N. Y. 105, 111.

21 Keates v. Lyon, 4 Ch. App. 218, 2 Gray's Cas. 480; Renals v. Cowlishaw, 9 Ch. Div. 125, 11 Ch. Div. 866, 2 Gray's Cas. 489; Mas

ing to enforce such an agreement against a vendee from the same person of an adjoining tract, must show that the agree ment was so intended, and this he may do by evidence as to the situation and condition of the property, and the surrounding circumstances. 22 An intention that purchasers shall enjoy the benefit of the agreement is, it seems, invariably presumed from the fact that the lots purchased were laid off for sale as building lots, with no intention on the part of the purchaser so laying them off to retain any portion of the property for his own enjoyment.28

According to the English cases, the restriction must have actually entered into the subsequent purchase,—that is, the purchaser must, as it were, have purchased the right to take advantage of the agreement.24

§ 352. Purchasers under common plan.

The question of the enforcement of these rights in equity has most frequently arisen in connection with agreements entered into in furtherance of some general scheme of improvement devised by the owner of land upon its division into ter v. Hansard, 4 Ch. Div. 718; De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329; Sharp v. Ropes, 110 Mass. 381, 2 Gray's Cas. 504; Jewell v. Lee, 14 Allen (Mass.) 145, 92 Am. Dec. 744; Skinner v. Shepard, 130 Mass. 180; Beals v. Case, 138 Mass. 138; Badger v. Boardman, 16 Gray (Mass.) 559; Clapp v. Wilder, 176 Mass. 332; Lowell Sav. Institute v. City of Lowell, 153 Mass. 530; Equitable Life Assur. Soc. v. Brennan, 148 N. Y. 661.

22 Nottingham Patent Brick & Tile Co. v. Butler, 15 Q. B. Div. 261, 16 Q. B. Div. 778; Spicer v. Martin, 14 App. Cas. 12; Collins v. Castle, 36 Ch. Div. 243; Hano v. Bigelow, 155 Mass. 341; Tobey v. Moore, 130 Mass. 448; Peck v. Conway, 119 Mass. 546; Peabody Heights Co. v. Willson, 82 Md. 186; Coughlin v. Barker, 46 Mo. App. 54.

23 Nottingham Patent Brick & Tile Co. v. Butler, 16 Q. B. Div. 778; Spicer v. Martin, 14 App. Cas. 12; Collins v. Castle, 36 Ch. Div. 243; Parker v. Nightingale, 6 Allen (Mass.) 341, 83 Am. Dec. 632. See Sharp v. Ropes, 110 Mass. 381, 2 Gray's Cas. 504.

24 Renals v. Cowlishaw, 9 Ch. Div. 125, 11 Ch. Div. 866, 2 Gray's Cas. 489; Spicer v. Martin, 14 App. Cas. 18.