1853.

COLES

v.

SIMS.

Judgment.

The

Shewell to have inserted in the deeds which he might af-
terwards execute covenants to the effect of the said cove-
nants entered into in the said agreement. These are
statements plainly calling to the notice of the Defendants,
that there was in their possession an instrument which
clearly referred to the agreement. That instrument the
Defendants decline to produce. I cannot force them to do
so; but as they do not, I must take the statement of it by
the Plaintiff to be true, for the Defendants have the means
of disproving it if it were not so; but they do not.
Defendants' case then stands thus-there has been an
agreement by deed, executed by Shewell to Morris, and
subsequently a sale to Jones; and the deed then executed
by Jones recited that agreement, and contained a covenant
by Jones with Shewell and his assigns to the same effect
as the covenant with Morris, which was contained in the
original agreement; and it informed Jones that no convey-
ance to Morris was to be made for a certain time.
then it is said, that the subsequent deed of conveyance by
Shewell to Morris prætermitting all covenants, Shewell
must be taken, as between him and Morris, not to be
bound by his covenants in the agreement. I cannot, how-
ever, say that the equitable effect of all these arrange-
ments between the parties is gone, because of the legal
machinery for carrying them into execution; the transac-
tion being that the two parties having entered into an
agreement that certain buildings should be erected in a
certain way, and certain other things done in another way,
and there being afterwards an immediate sale of part of
the land to another person, the original vendor procured
the party to whom the sale was made to enter into a cove-
nant with him and his assigns, that he would observe the
very covenant which the vendor had undertaken to ob-
serve towards Morris.

But

I think, under these circumstances, that whatever equitable rights existed would be still preserved as between

Shewell and Morris. But, independently of that, suppose the case stood on the deed of conveyance to Jones alone, the case would then be, that at that time Shewell was the legal owner of the particular property agreed to be sold to Morris, giving exact notice to Jones of the position in which he stood with Morris, and that Jones agreed, with regard to this property, that there should be no building upon it except in a particular manner. If it stood upon that deed alone, would it not be precisely like the case of Whatman v. Gibson (a), which seems to be an answer to the argument, that a party has no remedy here unless he has also at law upon the covenant? In that case a deed was executed between the owner of land and purchasers of different lots, by which they covenanted and agreed, each with the others of them, that they would build in a certain specified manner; and further, that none of them would allow his premises to be occupied as a public house or for certain other purposes. The title on both sides was derived by the Plaintiff and the Defendant through several persons from the original covenanting parties, who only covenanted with one another and not for their assigns; but the Defendant, having notice of the covenant, was held to be bound by it.

It was argued in Whatman v. Gibson (a), and the ViceChancellor of England seems to have acquiesced in the view, that the covenant did not run with the land for the benefit of the parties then before him; for the lands. had gone through several hands on both sides, and the Plaintiff and Defendant derived their title by assignment from different persons who were parties to the deed of covenant. The Vice-Chancellor of England, during the argument, seems to have inclined against the Plaintiff. He says, "Fleming" (the original owner)

(a) 9 Sim. 196.

1853.

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SIMS.

Judgment.

1853.

COLES

v.

SIMS. Judgment.

"contained in himself both the future covenantors and
the future covenantees. I do not see how a party
can covenant with himself; besides, the Plaintiff never
executed this deed. How, then, can he claim relief
under it?" When he comes to give judgment, the Vice-
Chancellor says, that the Defendant "admits, by his
answer, that he does threaten and intend to use the
house numbered 7 as a family hotel and tavern. There
can be no doubt, therefore, that he has brought himself
within the words of the covenant in the deed." He then
observes, that, "though neither the conveyance to Cull
nor the conveyance to Austin (under which the parties
severally claim) has been produced”—(in that respect it
resembled this case),—" yet," he proceeds, "I must take
it as a fact, that those deeds recited that Cull and Austin
had executed the deed of February, 1799; and with respect
to that deed, it seems to me that the matter is to be consi-
dered in this Court, not merely with reference to the form
in which the covenants are expressed, but also with refer-
ence to what is contained in the preliminary part of the
deed, namely, that Fleming had determined, and proposed
and did thereby expressly declare, that it should be a gene-
ral and indispensable condition of the sale of all or any
part of the land intended to form the row, that the several
proprietors of such land, respectively, for the time being,
should observe and abide by the several stipulations and
regulations thereinafter contained or expressed in regard
to the several houses to be erected thereon, and in all other
particulars. Then follow the stipulations.
One of
them is, that none of the proprietors of any of the several
lots or parcels of land intended to form the row shall, at any
any time or times, . . . on any of the several lots or parcels
of land which shall be to them respectively belonging for the
time being" use the trade or business of a tavern or ale
house keeper. Then he says, "it is quite clear that all
parties who executed this deed were bound by it; and
the only question is, whether, there being an agreement,

all persons who come in as devisees or assignees under those who took with notice of the deed, are not bound by it? I see no reason why such an agreement should not be binding in equity on the parties so coming in with notice. Each proprietor is manifestly interested in having all the neighbouring houses used in such a way as to preserve the general uniformity and respectability of the row, and consequently in preventing any of the houses from being converted into shops or taverns." Therefore, taking the deed between Jones and Shewell alone, these two parties, having clearly agreed with each other that the property should be laid out in a particular way, all those who come in under them are bound in equity by their covenants, if they had notice of them.

Mr. Elderton's objection remains. He says, that Shewell himself could not come here for this relief, because he did not perform the agreement on his part. Shewell's agreement was, that he would procure Morris to enter into certain covenants. I think, however, that this question has not been fairly raised in this case. No doubt there are no such covenants as were agreed upon in the conveyance to Morris; but the Defendants were bound to state, if they intended so to insist, that Jones never had in any other form such covenants as Shewell agreed to procure for him. It may at this moment be possible, that, among other papers in the Defendants' possession, there may be a Ideed in which Morris has covenanted with Jones to the same effect as was stipulated in the agreement. I think, therefore, that the Defendants are not now entitled at the bar to insist upon that objection, in order to prevent the parties who come in under Shewell having the relief to which Shewell himself would have been entitled, because the point has never been properly raised against them. The real difficulty which I have felt is, as to the delay which has occurred. As to the words of the covenant, I have none. The delay is not by any means satisfactorily explained,

1853.

COLES

V.

SIMS.

Judgment.

1853.

COLES

v.

SIMS.

Judgment.

Minute of
Order.

and if it were not for the peculiar course of conduct taken by the Defendants, and the certainty that they were acting with the full knowledge, that, from the first moment when the Plaintiff knew that the covenant was about to be infringed, he intended to assert his rights, and that they spent every farthing which they have laid out with that knowledge; and if it were not also for the fact that they had in their own possession the very measure of their rights, I should have said that the delay which has taken place would have prevented the Plaintiff from obtaining relief by this interlocutory proceeding; and if the Defendants had given an undertaking to abide by the order of the Court at the hearing, I should not have done anything until that time.

His Honour recapitulated the circumstances which had occurred relative to the building, and the delay in suing, observing that the Plaintiff's delay was partly excused by the difficulty of obtaining information concerning the covenants, which the Defendants could have supplied but would not, and concluded by making an order granting an injunction, prefaced by a declaration to the following effect:

Order that the Defendants declining to abide by such order as the Court may make at the hearing of the cause, with reference to the removal of the building erected or to be erected in front of a line extending 33 feet 6 inches, running northwards from and in continuation of the front of the Plaintiff's house, or any part of such building, be restrained from proceeding with or erecting any building in front of such line.