Tulk v. Moxhay

Tulk v. Moxhay
Court of Chancery, England, 1848
2 Phillips 774, 41 Eng. Rep. 1143

Per LORD COTTENHAM, LC: If an equity is attached to property by the owner, no one purchasing with notice of that equity can stand in a different situation from that of the party from whom he purchased.

Appeal by the defendant from an order of LORD LANGDALE MR, in an action for an injunction.

In 1808 the plaintiff, being then the owner in fee of a vacant piece of ground in Leicester Square, London, as well as of several of the 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. The deed of conveyance contained a covenant by Elms, for himself, his heirs, and assigns, with the plaintiff, his heirs, executors, and administrators

"that Films, 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, in neat and ornamental order; 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."

The piece of land so conveyed passed by divers means conveyances into the hands of the defendant, whose 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. The defendant having manifested an intention to alter the character of the square garden, and asserted a right, if he thought fit, to build upon it, the plaintiff, who remained owner of several houses in the square, filed this bill for an injunction. An injunction was granted by the Master of the Rolls, to restrain 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. The defendant moved to discharge that order.

JUDGMENT:
LORD COTTENHAM LC:

That this court has jurisdiction to enforce a contract between the owner of land and his neighbour purchasing a part of it that the purchaser shall either use or abstain from using the land purchased in a particular way is what I never knew disputed. Here there is no question about the contract. The owner of certain houses in the square sells the land adjoining, with a covenant from the purchaser not to use it for any other purpose than as a square garden. It is now contended, not that the vendee could violate that contract, but that he might sell the piece of land, and that the purchaser from him may violate it without this court having any power to interfere. If that were so, it would be impossible for an owner of land to sell part of it without incurring the risk of rendering what he retains worthless. It is said that, the covenant being one which does not run with the land, this court cannot enforce it, but the question is not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, with notice of which he purchased. Of course, the price would be affected by the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken.

That the question does not depend upon whether the covenant runs with the land is evident from this, that, if there was a mere agreement and no covenant, this court would enforce it against a party purchasing with notice of it, for if an equity is attached to property by the owner, no one purchasing with notice of that equity can stand in a different situation from that of the party from whom he purchased. There are not only cases before the Vice-Chancellor of England, in which he considered that doctrine as not in dispute, but looking at the ground on which LORD ELDON disposed of Duke of Bedford v British Museum Trustees it is impossible to suppose that he entertained any doubt of it. In Mann v Stephens before me, I never intended to make the injunction depend upon the result of the action, nor does the order imply it. The motion was, to discharge an order for the commitment of the defendant for an alleged breach of the injunction, and also to dissolve the injunction. I upheld the injunction, but discharged the order of commitment on the ground that it was not clearly proved that any breach had been committed, but, there being a doubt whether part of the premises on which the defendant was proceeding to build, was locally situated within what was called the Dell, on which alone he had under the covenant a right to build, and the plaintiff insisting that it was not, I thought the pendency of the suit ought not to prejudice the plaintiff in his right to bring an action if he thought he had such right, and, therefore, I gave him liberty to do so.

With respect to the observations of LORD BROUGHAM in Keppell v Bailey he never could have meant to lay down, that this court would not enforce an equity attached to land by the owner unless under such circumstances as would maintain an action at law. If that be the result of his observations, I can only say that I cannot coincide with it. I think this decision of the Master of the Rolls perfectly right, and, therefore, that this motion must be refused with costs.

Appeal dismissed.