seph Smith of the third part, after reciting the said agree- The Plaintiff claimed under the assigns of Samuel Morris. The Defendants derived their title in like manner from Thomas Jones, and they were in possession of the hereditaments and premises formerly belonging to him. In June, 1853, the Defendants pulled down the house on these premises, and commenced building upon the site, and upon the ground in front, a Baptist Chapel, which projected eighteen feet beyond the eastern front of the Plaintiff's house in Cambray-place. The Plaintiff employed his solicitor to see the plan of the chapel, and communicate with the Defendants' architect, to whom the Plaintiff's solicitor stated, that a building on the proposed plan would be contrary to some restrictive covenant affecting the land, which he believed to exist, and asked to see the covenants in the Defendants' title deeds. This was refused; and it was not until the 2nd of September, 1853, that the Plaintiff obtained drafts or copies of some of the building agreements, and the other deeds of the Defendants, which were then submitted to counsel; and on the 21st of the same month, in pursuance of the opinion of counsel, the Plaintiff served the Defendants with notice not to proceed with but to remove so much of their building as extended beyond the line of the front of his house, or that he should apply to the Court of Chancery for an injunction to compel them to do so. 1852. COLES บ. SIMS. Statement. 1853. COLES v. SIMS. Statement. The Defendants continuing to build, the Plaintiff then filed the bill in this suit, stating the above-mentioned facts, and charging, that, at the time when the Defendants purchased the said premises they had notice of the covenants in the agreement of the 1st of September, 1823, and in the conveyance to Thomas Jones, dated the 21st of November in that year, and praying for an injunction to restrain the Defendants, their servants, agents, and workmen from proceeding with the building of the said chapel upon the said piece of ground beyond the front of the Plaintiff's house in Cambray-place; and from allowing the building already erected upon the said last-mentioned piece of ground, so far as the same extended beyond the front of the Plaintiff's said house, to continue thereon; and from erecting any other building upon the said piece of ground, so as to extend beyond the front of the Plaintiff's said house. This was an interlocutory motion for an injunction in the terms of the prayer. The Plaintiff made an affidavit, repeating the allegations in the bill, but pledging his belief only to the correctness of the statements of the various deeds and transactions of which he had not actual knowledge. The Defendants, in their affidavits, did not deny that they had notice of the agreement and of the conveyance to Jones, or that these deeds were in the terms above set forth; but they stated, that, on the first intimation of objection, they had requested the plaintiff, if he meant to take legal proceedings, to do so at once; and that the chapel was now almost roofed in and had cost about 9501. Argument. Mr. Rolt, Q. C., and Mr. Faber for the motion. The Defendants being assigns of Shewell, with notice of his covenant in the agreement with Morris, from whom the Plaintiff claims by divers assignments, and with notice of Jones's covenant to Shewell, are bound in equity to observe these covenants: Whatman v. Gibson (a), Tulk v. Morhay (b), Mann v. Stephens (c).—They required to see the deed of conveyance to Jones of the 21st of November, 1823, but the production of this deed was refused. Mr. Russell, Q. C., and Mr. Elderton, contrà.-The Defendants deny the existence of the agreement relied on by the Plaintiff. There is no proof of it, except the belief of the Plaintiff. But, if it ever did exist, it was determined by the deed of conveyance to Morris, which was thenceforth the only instrument which could be looked at to determine the rights of Morris as between him and Shewell. Even if the deed between Shewell and Jones can be resorted to, the covenants of Jones with Shewell in that deed would not run with the land for the benefit of Morris or his assigns. If a purchaser covenant with a vendor to do any act on the land conveyed to him, that covenant will not run with all the other land of the vendor; for he might have 1000 acres and convey them to 1000 different purchasers. Could it be said that the covenant would run for the benefit of them all? The equitable obligation cannot be carried further than the legal obligation of the covenant. [The VICE-CHANCELLOR.-That was not the view of Lord Cottenham in Tulk v. Moxhay (b).] The Plaintiff can have no more relief againt the Defendants than Shewell could have had. But as the conveyance to Jones was prior to the conveyance to Morris, Shewell's covenant with Morris could not bind the land which then belonged to Jones; and, moreover, in the conveyance to Morris, there are none of the covenants which Shewell agreed that he should give to Jones; therefore Shewell could not claim the benefit of Jones's covenants with him, not having fulfilled his covenants with Jones. [The VICE(a) 9 Sim. 196. (b) 11 Beav. 571; 2 Ph. 774. (c) 15 Sim. 377. 1853. COLES v. SIMS. Argument. 1853. COLES v. SIMS. CHANCELLOR.-But it does not appear that Shewell never procured Morris to enter into such covenants by another instrument. They would not be in that deed of conveyance to Morris of course.] It is part of the Plaintiff's case Argument. that Shewell had fulfilled his part of the agreement with Jones, otherwise the Plaintiff could not ask for the performance of Jones's dependent covenant; therefore it is for the Plaintiff to prove that Morris did so covenant with Jones. Equity will not interfere in these cases, unless there is considerable mischief, which cannot be compensated by daImages at law, which is not the case here: Attorney-General v. The Sheffield Gas Company (a). Moreover, the delay which has occurred is a sufficient defence to this motion: Spurrier v. Hancock (b). Judgment. VICE-CHANCELLOR SIR W. PAGE WOOD: Mr. Russell has raised several points with respect to the law of this case. The first was, that there was no proof of any agreement at all between Shewell and Morris; the second, that if there were such an agreement, it was terminated by the deed which was made between Shewell and Morris, upon the execution of which the agreement had performed all its functions. The third point was, that if that were not so, and the effect was, that the parties were thrown back upon the deed between Shewell and Jones, the covenants of Jones would not run with the land for the benefit of the assigns of the covenantee, although it might run as against the assigns of the covenantor; and, independently of that, it was argued that there is no privity between the Plaintiff and Shewell, or between him and Jones, which could entitle the Plaintiff to insist in equity upon any relief under the covenant between Jones and Shewell. It was said further, that there are certain covenants on the part of Shewell which he has not performed, and that (b) 4 Ves. 667. (a) 17 Jur. 677. therefore Shewell could not insist upon this right against the Defendants, and still less could those do so who claimed by assignment from him. First, then, as to the agreement itself, I think that, for the purposes of this motion, upon the evidence before me, I must take the agreement to exist, or rather to have existed. The affidavit verifying the bill states, that, to the belief of the Plaintiff, this agreement, which is set forth in the bill, was executed, being, as it is stated, an agreement for sale from Shewell to Morris. It states also, that the Plaintiff believes the agreement to be in the possession of the Defendants; that however, the Defendants have denied. The affidavit further states, that the Plaintiff believes that an indenture was executed, dated the 21st. of November, 1823, which he also believes, and which is now admitted, to be in the possession of the Defendants. That deed contains recitals to this effect:-It recites "the said sales" to Morris and the other purchasers; which might be ambiguous, and might mean only the fact of the sales, but that the deed goes on to recite a covenant by Shewell for himself, his heirs and assigns, that, when he should convey to the said purchasers, he would require them and each of them, their and each of their heirs and assigns, to enter, on their and each of their parts and behalves, into all and singular the several covenants, provisoes, and agreements mentioned and contained in the several contracts so entered into by them for the purchase of their respective lot or lots of the said ground, or such of the said covenants, agreements, and provisoes as should be then necessary and be in existence. It is therefore averred, that the agreement is to the ef fect stated in the bill, and that the deed in the Defendants' possession contains these recitals of that agreement for the sale by Shewell to Morris, and also a covenant by VOL. 1. F E. K. W. 1853. COLES v. SIMS. Judgment. |