2 Phillips 774, 41 Eng. Rep. 1143
In 1808, the plaintiff, then owner in fee of a vacant piece of ground in Leicester Square and of several houses forming the square, sold the piece of ground by the description of "Leicester Square garden or pleasure ground, with the equestrian statue then standing in the centre thereof, and the iron railing and stone work round the same," to one Elms in fee.1 The deed of conveyance contained a covenant by Elms, for himself, his heirs, and assigns, with the plaintiff, his heirs, executors, and administrators, that Elms, his heirs, and assigns should, and would from time to time and at all times thereafter at his and their own costs and charges, keep and maintain the said piece of ground and square garden and the iron railing round the same in its then form and in sufficient and proper repair as a square garden and pleasure ground, in an open state, uncovered with any buildings, and that it should be lawful for the inhabitants of Leicester Square, tenants of the plaintiff, on payment of a reasonable rent for the same, to have keys at their own expense and the privilege of admission therewith at any time or times into the said square garden and pleasure ground.2
The piece of land so conveyed passed by divers mesne conveyances into the hands of the defendant.3 His purchase deed contained no similar covenant with his vendor, but he admitted that he had purchased with notice of the covenant in the deed of 1808.4 The defendant manifested an intention to alter the character of the square garden and asserted a right, if he thought fit, to build upon it.5
The plaintiff, who still remained owner of several houses in the square, filed a bill for an injunction, and an injunction was granted by the Master of the Rolls restraining the defendant from converting or using the piece of ground and square garden, and the iron railing round the same, to or for any other purpose than as a square garden and pleasure ground in an open state and uncovered with buildings.6
On a motion to discharge that order, Mr. R. Palmer for the defendant contended that the covenant did not run with the land so as to be binding at law upon a purchaser from the covenantor, and he relied on the dictum of Lord Brougham C. in Keppell v. Bayley to the effect that notice of such a covenant did not give a court of equity jurisdiction to enforce it by injunction against such purchaser.7
Whether a court of equity has jurisdiction to enforce a covenant restricting the use of land against a subsequent purchaser who acquired the land with notice of the covenant?8
This court has jurisdiction to enforce a contract between the owner of land and a neighbour purchasing a part of it.9 The latter shall either use or abstain from using the land purchased in a particular way.10 If an equity is attached to the property by the owner, no one purchasing with notice of that equity can be in a different situation from the party from whom he purchased.11
Yes. The plaintiff, who remained owner of several houses in the square, sold the piece of ground to Elms in 1808 subject to the covenant requiring it to be maintained as a square garden and pleasure ground in an open state.12 The land passed by divers mesne conveyances to the defendant, who admitted purchasing with notice of the 1808 covenant although his own deed contained no similar restriction.13 The defendant manifested an intention to alter the character of the garden and asserted a right to build upon it.14
Equity therefore enforces the restriction against the defendant because he took the property subject to the equity created by the original covenant.15
A court of equity has jurisdiction to enforce the covenant against the subsequent purchaser who acquired the land with notice.16
Whether the enforceability of such a covenant in equity against a purchaser with notice depends on whether the covenant runs with the land at law?17
The question does not depend upon whether the covenant ran with the land because if there was a mere agreement and no covenant this court would still enforce it against a party purchasing with notice.18
No. The defendant contended that the covenant did not run with the land so as to bind a purchaser at law, relying on the dictum in Keppell v. Bayley.19 The land reached the defendant through mesne conveyances without any fresh covenant in his deed, yet he purchased with express notice of the 1808 restriction.20 The court enforces the equity attached to the property by the original owner against any purchaser with notice, independent of whether the covenant itself runs at law.21
The enforceability of the covenant in equity against a purchaser with notice does not depend on whether the covenant runs with the land at law.22