1853.

PATCHING

v.

DUBBINS.

Mr. Rolt and Mr. C. Marett, for the Plaintiff, said, that one ground of defence would be, that the covenant by Edwards was not in terms for himself and his "assigns," and that therefore the Defendants were not bound; but Argument. they contended, that the covenant related to the land, and from its nature and the privity of estate between the covenanting parties it would run with the land, and therefore bound assigns of the covenantor though not named. The law on this point was summed up in Sugden's Vendors & Purchasers, Concise View, p. 485, where, speaking of real covenants, he says, "As they relate to the land an assignee may maintain an action on them, although they were entered into with the original grantee and his heirs only:" Spencer's case (a), Keppell v. Bailey (b), Tatem v. Chaplin (c). But even if the covenant did not run with the land, the evidence proved that the Defendants had notice of it, and they were therefore bound in conscience, on the authority of Tulk v. Moxhay (d).

Another ground of defence would be, that the land on which the Defendants were building was not affected by the covenant, but that it only related to the piece of land immediately opposite to the house, and of the same width. If that were so, the covenant would not be infringed, though all the land opposite were built on except the small space directly in front. Such a construction was absurd, when the object of the covenant obviously was to secure the uninterrupted enjoyment of a prospect, and of light and air.

Another ground was, that the Plaintiff had acquiesced in a former breach of the covenant by allowing the Dispensary to be built upon the northern extremity of this land. The law on this subject was well understood since the case

of The Duke of Bedford v. The Trustees of the British Museum (a). It was, that acquiescence might be presumed, if person entitled to the benefit of a covenant of this kind altered the nature of the property to which it related, so as to shew that the covenant was of no value to him. [The Vice-Chancellor referred to Roper v. Williams (b).] But here the Dispensary could scarcely be seen from No. 7, by looking sideways from the windows; and certainly could not obstruct light, air, or prospect.

Another objection to the relief sought was, that the Plaintiff had delayed for a long time and allowed the Defendants to expend money in building, and therefore it was now too late to interfere. But the Defendants' solicitor was made aware of the covenant in May, 1852; and that was all the Plaintiff could do until some active steps in erecting a building were taken by the Defendants, and the natural reluctance of every one to commence a Chancery suit the Plaintiff's want of knowledge who were the purchasers his belief, though mistaken, that the building might be carried up to the height of a tombstone or monument without infringing the covenant-the taking counsel's opinion and paying off the mortgage, had all contributed to cause, and ought to excuse, the delay. The Plaintiff had, from the first, insisted upon his covenant, and made it known, as far as he could; and when the first stone of the building was advertised to be laid, he had directed his solicitor to obtain counsel's opinion as to his rights; and then the building was stopped for a time, which of course delayed his proceeding to sue.

Mr. Bacon and Mr. Hislop Clarke, for the Defendants, said, that the main question was, what was the real meaning of the covenant? It was consistent with all the facts

1853.

PATCHING

V.

DUBBINS.

Argument.

of the case, that the covenant should mean only that no building should be erected opposite to the particular house; and that Edwards should reserve the right of building on the other part of the garden land.

[The VICE-CHANCELLOR.-Your argument is, that the words "and opposite, &c." in the covenant are restrictive.]

The conjunction "and" must qualify the rest of the sentence, or it was unnecessary; for all the land for some distance belonged to Edwards.

Then, the parties by their acts, had put this construction upon the covenant, for the Dispensary had been built upon part of the garden without objection.

The delay was not satisfactorily accounted for. As to the mortgage on the Plaintiff's house, the mortgagee, who refused to be a Plaintiff, might have been made a Defendant. The Plaintiff had lost any right which he might have had by allowing the Defendants to lay out their money without interfering to prevent it.

The VICE-CHANCELLOR desired Mr. Rolt, in reply, to address himself only to the construction of the covenant, and to the case of delay made by the Defendants against the Plaintiff.

Mr. Rolt, in reply, contended, that "opposite" did not necessarily mean directly opposite only. Here the purpose for which the word was introduced gave it a more extensive meaning. It was used in the covenant as an additional description of the land, and not to restrict the preceding words. As to the delay, the Plaintiff could do nothing but make his covenant public until the building was commenced, and then he immediately took proceedings. The present application was for a decree, and not an inter

locutory motion for an injunction. The defence made on this point assumed, that, on account of the delay of a few months, thus excused, the Court would decree that the Plaintiff was for ever to lose an interest in land in the nature of an easement.

The VICE-CHANCELLOR reserved his judgment.

1853.

PATCHING

v.

DUBBINS.

Argument.

VICE-CHANCELLOR SIR W. P. WOOD:

This case came before me originally upon a motion for an injunction, and I was then clearly of opinion, that there had been such delay on the part of the Plaintiff that I could not accede to the application for an injunction upon an interlocutory proceeding. The parties then agreed, that the better course would be, that the matter should come on upon a motion for decree; and, accordingly, it is now ripe for the decision of the Court.

I think that the question must turn entirely upon the construction of the deed of 1830. Several other points have been raised and discussed at the hearing. The first was, as to the question whether the covenant runs with the land. That point appears to me to be entirely beside the present question between these parties, because, no doubt, according to the evidence in this case, distinct notice was given to the Defendants, before they purchased this property, of the existence of the covenant in the deed of 1830; and, therefore, according to Tulk v. Moxhay (a), and the authorities referred to in that case, the parties having had such notice must be considered to be bound, whether the covenant ran with the land or not, in such a manner as that a Court of equity would not permit them to do anything contrary to the true meaning of the covenant.

With respect to the question of acquiescence, as dis(a) 2 Ph. 774.

Nov. 4.

Judgment.

1853.

PATCHING

บ.

DUBBINS.

Judgment.

tinct from delay, it is said that there was, on a former occasion, an acquiescence by the Plaintiff, in permitting an Hospital to be built upon a part of the land, which clearly, according to the Plaintiff's construction of the covenant, would be within its terms. It has been argued, that the Plaintiff is, on this account, precluded from now raising this contest before the Court. I do not think that the principle of acquiescence, which was so fully discussed in the case of The Duke of Bedford v. The Trustees of the British Museum (a), will at all apply to a case of this description. Lord Eldon, in that case, goes fully into the reasons for the conclusion there adopted. The doctrine is very concisely stated by him in Roper v. Williams (b). His Lordship there says "I have often been in the habit of illustrating my view of such cases by referring to the stipulations contained in the Duke of Bedford's leases. In the lease of every house on the east side of that street is contained a covenant that there shall be no erection behind them exceeding a certain height. The landlord in such a case is stipulating not only for his own benefit, but for the benefit of all the tenants in that neighbourhood." That case has, therefore, clearly no application to the present. It was the case of a landlord taking from several tenants restrictive covenants against the erection of buildings by them, in order to secure one uniform plan for the benefit of them all. This case is just the converse of that. Here, the landlord has stipulated, for the benefit of each of the tenants, not to build upon the opposite land. I do not think that one of these tenants can be considered to hold his right for the benefit of all the other tenants who had similar covenants, or that any acquiescence on the part of any one of the tenants in an infringement, which, according to his construction of the covenant, does not injure him, can be material. That kind of acquiescence has nothing to do with the case.