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.

building lots, it being intended that all purchasers of such lots shall improve them, in accordance with such plan, for the common benefit of all. In such a case, the purchaser of any one lot might properly be allowed in equity to enforce a restrictive agreement entered into by a prior purchaser of another lot, as being an assignee of the common vendor, and as intended to be benefited thereby. But when the person seeking to enforce the agreement is one who purchased before, and not after, the purchase by the person against whom it is sought to enforce it, different considerations intervene. Though he might properly enforce the agreement made with his vendor before his purchase, he cannot be regarded as an assignee of the right to enforce an agreement made after his purchase. His right, therefore, to enforce a restriction upon the use of the land, must be based, not upon the agreement made by the subsequent purchaser, but rather upon the theory that each purchaser buying a lot with notice of a general plan of improvement impliedly assents thereto, and may therefore be compelled to comply therewith at the suit of the owner of any other lot, without reference to the order in which the lots may have been sold.25 In Massachusetts the enforcement of these restrictions upon the use of land in favor of one other than the original vendor of the land are exclusively cases in which a general building plan or uniform mode of use or improvement has been established and made a part of the particular conveyances or sales, either by express agreement or by representation or suggestion.26

But

25 De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329; Winfield v. Henning, 21 N. J. Eq. 188, 2 Gray's Cas. 502; Tallmadge v. East River Bank, 26 N. Y. 105, 2 Gray's Cas. 497; Barron v. Richard, 8 Paige (N. Y.) 351; Spicer v. Martin, 14 App. Cas. 12; Mac kenzie v. Childers, 43 Ch. Div. 265; Parker v. Nightingale, 6 Allen (Mass.) 341, 83 Am. Dec. 632. See article by Edward O. Keasbey, Esq., in 6 Harv. Law Rev. 280.

26 Parker v. Nightingale, 6 Allen (Mass.) 341, 83 Am. Dec. 632;

in other jurisdictions an agreement by a vendee of land is regarded as binding, in favor of the vendee, of other land without reference to the fact that it was or was not in pursuance of a general plan. 27

358. Defenses to enforcement.

If the original plan of improvement has been abandoned, or the character of the neighborhood has been changed so as to defeat the purpose of the covenant or agreement, it will not be enforced;28 nor will the agreement be enforced if the party seeking its enforcement has been guilty of laches or acquiescence in defendant's violation of the agreement.29 But the fact that the person entitled to enforce the agreement has ac

Linzee v. Mixer, 101 Mass. 512; Tobey v. Moore, 130 Mass. 448; Sanborn v. Rice, 129, Mass. 387; Whitney v. Union Ry. Co., 11 Gray (Mass.) 359, 71 Am. Dec. 715; Sharp v. Ropes, 110 Mass. 381; Hills ▼. Metzenroth, 173 Mass. 423.

27 Clark v. Martin, 49 Pa. St. 289; Coudert v. Sayre, 46 N. J. Eq. 386; Hayes v. Waverly & P. Ry. Co., 51 N. J. Eq. 345; McMahon v. Williams, 79 Ala. 288. See Peck v. Conway, 119 Mass. 546, 2 Gray's Cas. 508.

28 Bedford v. Trustees of British Museum, 2 Mylne & K. 552; Peek v. Matthews, L. R. 3 Eq. 515; Trustees of Columbia College v. Thacher, 87 N. Y. 311; Duncan v. Central Passenger Ry. Co., 85 Ky. 525; Ammerman v. Deane, 132 N. Y. 355, 28 Am. St. Rep. 584; Page v. Murray, 46 N. J. Eq. 325; Coughlin v. Barker, 46 Mo. App. 54; Moore v. Murphy, 89 Hun (N.. Y.) 175; Jackson v. Stevenson, 156 Mass. 496, 32 Am. St. Rep. 476. See Landell v. Hamilton, 175 Pa. St. 327, 177 Pa. St. 23.

29 Sayers v. Collyer, 28 Ch. Div. 103; Knight v. Simmonds [1896] 2 Ch. 294; Whitney v. Union Ry. Co., 11 Gray (Mass.) 359, 71 Am. Dec. 715; Linzee v. Mixer, 101 Mass. 512; Payson v. Burnham, 141 Mass. 547.

So it was held that, if the owner of a lot had, by building a wall rendered a restriction upon the height of buildings on the next lot. partially valueless to his lot, he could not enforce the restriction so as to prevent the construction of buildings no higher than the wall. Landell v. Hamilton, 177 Pa. St. 23.

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