Equity Sittings.-Answers to Queries.-The Editor's Letter Box.

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The Legal Observer.

SATURDAY, NOVEMBER 14, 1835.

"Quod magis ad NOS

Pertinet, et nescire malum est, agitamus.

HORAT.

ON THE CONSTRUCTION OF CO- | feoffee covenanted for himself, his heirs and VENANTS IN EQUITY,

assigns, with the feoffor, the owner of the
adjoining land, his heirs, executors, admi-
nistrators, and assigns, not to use the land
in a particular manner, with a view to the
more ample enjoyment by the feoffor of
such adjoining lands. The enfeoffed lands
came into the possession of the trustees of
the British Museum, and by the subsequent
acts of the feoffor, or of those claiming un-
der him, the character and condition of the
adjoining lands were greatly altered; and
the question was, whether the covenant was
still binding on the feoffee. This was con-
sidered with great care by Lord Eldon, C.
and Sir Thomas Plumer, M. R., who sat
Lord Eldon, in
together for that purpose.
that it was not. Among other things he
characteristic d judgment, decided

a very

said :

Suppose, again, that the moment after Mr.

"When

In a conveyance in fee, the grantees covenanted with the grantors, who were lessees of water-works, not to sell or dispose of water from a well to the injury of the prod In one part of it he thus adverts to what prietors of the said water-works, their heirs, was at one time classic legal ground, but executors, administrators, and assigns. A which is, owing to the great migrations westquestion arose whether this covenant bound ward, gradually ceasing to be so. assignees. Lord Eldon, C., said, "the Bedford Square was built, it is impossible to Court will interfere in many cases to re- doubt that the owners of houses on the east strain a breach of covenant, but I never met value attached to them, because the residents side of that square thought that an increased with such a covenant as this, upon which I in those houses would have the Museum on must try in each instance whether the act one side and the square on the other. So with of selling the specified quantity of water is respect to Gower Street, every one remembers a prejudice to the proprietors of these that the houses on the east side were always water-works. I cannot imagine what ju- advertised as much more valuable than those risdiction a court of equity can have upon former there was a prospect of the country on the west; and why? Because from the inhabitants could have a refreshing walk from extending to Islington; and because also their their own homes through the fields, as far as Queen Square, which was then the northern extremity of that part of the metropolis. It was no doubt imagined that the Duke of Bedford could never be advised to cover this land with buildings." Lord Eldon, as many of our readers will recollect, occupied for several years the large house on the eastern side of Bedford

such a covenant."

In a case which came before the Court in 1822, but which has been only recently reported, land had been conveyed in fee by the Duke of Bedford, by deed of feoffment, subject to a perpetual ground-rent, and the

a Smith v. Fromont, 2 Swanst. 330. b Collins v. Plumb, 16 Ves. 454.

Duke of Bedford v. Trustees of the British Square, and had no doubt often taken the Museum, 2 Myl. & K. 552.

VOL. XI.-No. 301.

refreshing walk" to which he here alludes. C

18

On the Construction of Covenants in Equity.

confess myself unable to say, that this is one of the cases in which the Court ought to give relief by injunction. The difficulties I have stated, are difficulties I am unable to get over, and I state them without prejudice. Having done so, I must request the Master of the Rolls to state what view he has taken of the case."

The Master of the Rolls was of the same opinion.

Montague (the feoffor) had in discharge of the original engagement built this great mansion fit for the pleasurable residence of a nobleman or gentleman of fortune, and had also, according to the covenants, erected suitable offices, and the ornamental banqueting house and summer house, the Duke of Bedford had then put a public brewhouse in the vicinity of the garden, what would the Montague family have said? And yet there is nothing here from which it can be pretended, that there is an express prohibi"It is not on the ground, that the party tion of such a proceeding. Neither do I say applying for relief has conducted himself imwhether the Bedford family could have built a properly so contrary to the agreement, as to public brewhouse to the north of this mansion; deprive himself of that remedy, that the assistbut suppose such a thing had been done, and ance by injunction may be refused; but the the Duke of Montague had then said, "You question is, whether, from the altered state of have spoilt my banqueting house and summer the property, altered by the acts of the party house, unless I am to drink nothing but porter, himself, he has not thereby voluntarily waived I must therefore build a wall, which will like- and abandoned all that controul which was apwise prevent the smoke of the engines of the plicable to the property in its former state. It brewhouse coming from the north." Will it be was perfectly competent to the plaintiff to make contended, that in such a case the Bedford what use he pleased of his contiguous lands; family could come to a Court of Equity for he was not fettered in so doing by any previous protection, on the ground that the Duke of obligation to the contrary; and when he took Montague was going to build a wall higher upon himself to act in the manner in which he than the covenants permitted; or even, we will has acted, and to cover the vacant ground with suppose, an immense brewhouse, they having buildings, the question is, whether, having reon their part religiously kept their covenants, gard to the mutual dealings between the parties by making two archways through which his with respect to the property, as it stood both grace might go and take the salubrious air, originally and afterwards, it is consonant with which it was intended he should have? If the the principles of equity to interpose at this time parties have so dealt with regard to the legal of day. In that point of view, it appears to be rights, that the object of the one party is de-a consideration of great importance, more espefeated, is the other to do what he pleases, while cially with reference to property in the metrothe first is not at liberty to call upon that other polis, how far parties shall now be permitted to to account for doing that which he himself is, go back, and revive all the objections arising by the deed, prohibited from doing? I do not out of long antecedent covenants and engagethink, that a Court of Equity is to act by reci- nents, and to give them such an application to procity of covenant: I rather mistake what has the buildings of the metropolis in its present been held to be the doctrine of Courts of rapidly increasing state, that, while one party Equity, during the whole course and practice is left at liberty to obtain the most profitable of my life, if this Court does not say to parties consideration for his land, every obligation who are so circumstanced, confine yourselves which is in the nature of restriction, shall be to your legal remedies, if you have any, and do enforced by that party, as against the owner of not come here in cases of this description, to the adjoining land. The question is not to be ask of the Court to give you more relief than determined on the letter of the contract. By could be obtained in a Court of Law.' Upon the letter of the contract, the duke is under no this point, I am anxious to have the opinion of positive engagement to leave the northern the Master of the Rolls; first, making most boundary open; but the question is, whether, respectfully this single observation, upon a according to good faith, and the true undersubject which calls for vigilant attention, that standing of the parties at the time when this if there be a question in a Court of Equity, the contract was entered into, the terms of the endecision of which will render the consideration gagement had not reference to the property, of it in Courts of Law unnecessary, it is then the while it remained in its then state. There were duty of the Court of Equity first to decide that here two large mansions-one erected, the question. If, for example, it should happen in other to be erected, contiguous to each otherthis case, that after the parties had gone to trial, to be enjoyed by two noble families, with their and the defendant had obtained a verdict at appendages of gardens and offices; and the law, this Court would, nevertheless, have given question is, whether the obligation did not no relief: then, it is for the interest of the remain so long as those two mansions resuitors, that they should be told so in the first mained, the parties mutually contemplating all instance, and not in the last stage of the pro- the enjoyment to be derived from every thing ceedings. Why is this Court to send them to which could contribute reciprocally to their law, and afterwards to tell them when they beauty, ornament, and use. It is to be recolcome back, that nothing can be done for them lected, that the piece of ground in question was here? If that is to be the course, it is better bought for the very purpose; and it is an oblito dismiss them out of Court at once, and in gation cast upon the purchaser, if he builds at the first instance, let the result of the applica-all, that he shall erect one mansion only--one tion to a Court of Law be what it may." I do large fair mansion, with suitable gardens and

On the Construction of Covenants in Equity.- New Equity Arrangements.

a mansion in such a situation, and on so mag

19

Certain

offices attached to it-his understanding being, by the Canal Company, which for articles that he should have all the advantages which of limestone and ironstone was restricted to the site then possessed; unless, indeed, it is to 24d. a ton per mile, and it also empowered be presumed that he could undertake to erect the Canal Company by agreement with the nificent a scale, with all the obligations thrown land owners, itself to construct auxiliary upon himself; and none, on the contrary, ex-rail-roads, on which tolls not exceeding 5d, pressed or implied, imposed upon the other a ton per mile might be charged. party who had subjected him to those obliga-land-owners and owners of iron-works, and tions. This understanding between the parties among others the lessees of the Beaufort results from every part of the agreement. The works, formed a joint-stock company, and party whom the duke represents, covenants that Mr. Montague shall have the unlimited enjoy-under the powers given them by the act, ment of the property conveyed, with all that constructed a rail-road connecting a limebelonged to it. It is quite evident, from the quarry, called the Trevil Quarry, with the expression with respect to the opening into the several iron-works, and with the rail-roads fields, that it was in the contemplation of the of the Canal Company. In the partnership parties, that the land to the north should re- deed of the Rail-road Company, the lessees main fields or open ground; and in the parts of of the Beaufort works covenanted for themthe deed referring to the streets to the southward, and the contiguous buildings to the east selves, their heirs, executors, administraand west, there is not a syllable which indicates tors, and assigns, with the other shareholdan intention that the northern boundary was ers, their executors, administrators, and not to remain open. It was that which princi- assigns, so long as the covenantors, their expally induced Mr. Montague to build. If the ecutors, administrators, or assigns should subject matter of the contract is changed; if, occupy the Beaufort works, to procure all from the alterations which take place in the the limestone used in the said works from lapse of time, both noble families quit their residences, and the mansion which had been the Trevil Quarry, and to convey all such built ceases to be a place of residence for a limestone, and also all the ironstone from family of this description, and becomes appro- the mines to the said works, along the priated to other purposes, a new set of interests Trevil rail-road, and to pay 5d. a ton per and rights would be applicable to it in its altered mile for the same. Upon a bill filed by the state. Who is it that has created this altera- shareholders of the rail-road to enforce this tion? The party who now seeks to enforce the obligation which applied to the property in its covenant against a person who had purIt was perfectly competent to chased the Beaufort works with notice of the Duke of Bedford to build to the northward the partnership deed, Lord Brougham, C., all the streets he has built, and to surround and held: that the covenant did not run enclose Montague house with buildings for with the land, so as to bind assignees at trade and commerce, or in any way he thought law, and that a court of equity would not, proper; but, having so done, can it be said to by holding the conscience of the purchaser be equitable or consonant with justice, after to be affected by the notice, give the covehaving induced a man to build a suitable mansion, after having surrounded him with build- nant a more extensive operation than the ings, and blocked up all that tempted him to law allowed to it. build, and precluded him from the pleasurable or profitable enjoyment of his mansion, to insist on its remaining in the state in which, by the letter of the deed, the party is bound to preserve it? At law such conduct may be no defence. Notwithstanding his having altered the state of the property, the duke may still be WE are informed, from what we consider entitled to the benefit of the covenant, and if good authority, that a bill for separating the so, let him take his legal remedy; but the ques-judicial from the political functions of the tion is, whether a Court of Equity must not Chancellor, is to be one of the earliest meaconsider how far it is reasonable to permit a sures introduced by the present Governparty who has so dealt with the property, and altered its condition, to obtain his remedy by ment in the ensuing session. We have althe interposition of this Court." The bill was ready repeatedly considered this subject, accordingly dismissed. and given all the information in our power relating to it. There have of course been many rumours afloat in the profession respecting the persons destined to fill the two situations to be created by the bill. One of them tells us with perfect gravity, that Lord Plunkett is to hold the political moiety of the office: but we cannot believe

former state.

In the last case on this subject, the Monmouthshire Canal Act provided that upon auxiliary rail-roads made by private individuals, under the authority of the act, the tolls should not exceed the rate charged

Keppell v. Bailey, 2 Myl. & K. 517.

THE NEW EQUITY ARRANGE-
MENTS.

The 21 G. 3, c. 67, authorizes peace officers to seize and secure persons improperly driving any cattle in London or Westminster, who are liable to penalties and im-larging the powers of several acts now in prisonment; and the Court of Mayor and Aldermen of London to make rules for regulating drivers of cattle, and to determine offences; with various clauses as to warrants of distress, appeal, &c.