^{page 339 note 1} Rogers v. Hosegood [1900] 2 Ch. 388, 395Google Scholar; Cheshire, Modern Law of Eeal Property (4th ed.), pp. 208 et seq. Apparently assigns of the reversion were not bound by the lessor's covenants at common law; but this was altered by an early statute (ibid., p. 215). Decisions on this topic are ignored in the present essay, for reasons given post, note 48.

^{page 339 note 2} Other exceptions are: (i) Persons claiming as assignees of a conditional grant or licence to do what would otherwise be tortious may be sued at law on the condition: thus, if a grantor reserves to himself and his assigns the minerals beneath the land granted and power, conditional on compensating surface owners, to let down the surface, surface owners can sue his assigns for causing damage by subsidence (Westhoughton U. D. C. v. Wigan Coal Co. [1919] 1 Ch. 159, , C. A.Google Scholar; Aspden v. Seddon (1876) 1 Ex. D. 496)Google Scholar; (ii) a specialty by which a debtor expressly bound his heirs rendered them liable at common law to the extent of land inherited from him: Cheshire, op. cit., p. 744.

^{page 339 note 3} The burden of a covenant (other than in a lease) does not run with land at law: Renals v. Cowlishaw (1878) 9 Ch. D. 125, 128–9Google Scholar; Haywood v. Brunswick Building Society (1881) 8 Q. B. D. 403, , C. A.Google Scholar; L. S. W. Ry. v. Gomm (1881) 20 Ch. D. 562, 587, , C. A.Google Scholar; Austerberry v. Oldham (1885) 29 Ch. D. 750, , C. A.Google Scholar; Rogers v. Hosegood [1900] 2 Ch. 388, 395Google Scholar; L. C. C. v. Allen [1914] 3 K. B. 642, 654, , C. A.Google Scholar Compare Cheshire, op. cit. 296, to the effect that this point has never' definitely been decided, and contrast Holdsworth, History of English Law, vol. iii, 164, 165.

^{page 339 note 4} (1848) 2 Ph. 774.

^{page 339 note 5} Re Nisbet and Potts' Contract [1906] 1 Ch. 386, , C. A.Google Scholar, shows that the covenant may bind even subsequent owners who are not strictly his successors in title (e.g. a squatter and his successors). See, further, Holdsworth, History of English Law, vol. vii, pp. 146–7.

^{page 339 note 6} That the restriction attaches at once to the covenantor's land and remains attached to it until a purchaser for value acquires a legal estate therein without notice of the restriction, and does not merely arise afresh when the land passes to a purchaser with notice, was explained, obiter, by Jessel, M.R. in L. S. W. Ry. v. Gomm (1881) 20 Ch. D. 562, 583Google Scholar (the action concerned an option, not a restrictive covenant). As late as Rogers v. Hosegood [1900] 2 Ch. 388, , C. A.Google Scholar, this was not completely understood; both Eigby L.J. and Haldane Q.C. (p. 401) denied it in argument, but the judgment of the Court confirmed it (pp. 405–6). See also Osborne v. Bradley [1903] 2 Ch. 446, 451Google Scholar; L. C. C. v. Allen [1914] 3 K. B. 642, A., C., per Scrutton J. at pp. 666Google Scholaret seq. (with which compare Cheshire, op. cit. p. 299, which suggests that L. S. W. Ry. v. Gomm wrought an immediate change in the law.) See, further, note 14, post.

^{page 340 note 7} No objection was taken to such a provision in the covenant in Re Union Bank's Conveyance, Miles v. Easter [1933] Ch. 611, , C. A.Google Scholar; Ridley v. Lee [1935] Ch. 591Google Scholar; Drake v. Gray [1936] Ch. 451, , C. A.Google Scholar; White v. Bijou Mansions [1937] Ch. 610Google Scholar. Clearly it is not inconsistent with an intention that the burden shall run with the land.

^{page 340 note 8} L. C. C. v. Allen [1914] 3 K. B. 642, , C. A., at pp. 660, 664Google Scholar, citing Stokes v. Russell, 3 T. B. 678. If he still has the land equity may issue an injunction against him in the exercise of its concurrent jurisdiction (L. C. C. v. Allen, supra, at pp. 660–1); and against persons bound by privity of contract injunctions are, it seems, more freely given: see Osborne v. Bradley [1903] 2 Ch. 446, 451–2Google Scholar; and note 10, post.

^{page 340 note 9} Lord Cairns' Act, 1858; see now Judicature Act, 1925, s. 18. An illustration in connection with restrictive covenants is Osborne v. Bradley, supra.

^{page 340 note 10} See Kelly v. Barrett [1924] 2 Ch. 379Google Scholar (where the Court of Appeal refused to concur in Tomlin J.'s opinion that proof of damage is necessary); Elliston v. Readier [1908] 2 Ch. 374, 395Google Scholar; Osborne v. Bradley, supra, at pp. 451, 452. The same appears to apply to the remedy by injunction; but the cases here cited seem to show that Lord Cairns' oft-quoted dictum in Doherty v. Allman (1878) 3 App. Cas. 709, 719Google Scholar, that a Court of Equity has no discretion to refuse an injunction for breach of a negative covenant, should at least be corintied to cases where privity of contract exists between the parties.

^{page 340 note 11} Recent attempts to establish these defences ínclude Osborne v. Bradley, supra; Re Spencer Flats [1937] Ch. 86Google Scholar. But they have not often succeeded in actions on restrictive covenants; for this, Lord Cairns' dictum may be in part responsible—see preceding note.

^{page 341 note 12} S. 84 enables persons interested in restricted land (1) to apply to an official arbitrator for the discharge or modification of restrictive covenants on grounds very similar to those which would amount in equity to laches, acquiescence or undue hardship, or (2) to apply to the Court for an order declaring whether the freehold is affected by a restrictive covenant, and, if so, what is its nature and extent and whether it is enforceable by anyone. Thus, he is now able to take the initiative himself, e.g. Re Sunnyfield [1932] 1 Ch. 79Google Scholar; Re Ecclesiastical Commissioners for England's Conveyance [1936] Ch. 430Google Scholar; Re Bollard's Conveyance [1937] Ch. 473Google Scholar (original covenantor); fie Spencer Flats [1937] Ch. 86Google Scholar (appeal from arbitrator).

^{page 341 note 13} Ss. 10, 13; for restrictive covenants entered into after 1925 (other than between lessor and lessee) registration takes the place of notice: L. P. Act, 1925, as. 198 (1), 199 (1).

^{page 341 note 14} Millbourn v. Lyons [1914] 2 Ch. 231, A., C.Google Scholar; L. C. C. v. Allen [1914] 8 K. B. 642, A., C.Google Scholar The instructive Judgment of Scrutton, J. in this latter case shows that authorities were ignored to procure this result. A much quoted obiter dictum, against the then current of authority, by Jessel, M.R. in L. S. W. Ry. v. Gomm (1881) 20 Ch. D. 562, 583Google Scholar (an action on an option), that the doctrine of Tulk v. Moxhay appears to be an equitable extension of the doctrine of negative easements (he probably meant merely that the burden runs with the restricted land: see Rogers v. Hosegood, post, at p. 405) was raised by Collins, L.J. in Rogers v, Hosegood [1900] 2 Ch. 388 at pp. 405, 406Google Scholar (a very obscure passage, probably obiter) to the status of an authority that the burden will not run unless there is a dominant tenement; and finally this dictum of Collins L.J. (and another, equally obscure, at p. 407) was followed by two of the judges in Formby v. Barker [1903] 2 Ch. 539, A., C., after an unsuccessful attempt (at p. 546)Google Scholar to elicit from counsel the earlier authorities to the contrary. See, further, note 6, ante, and compare Cheshire, op. cit. 299.

^{page 341 note 15} See the authorities cited ante, note 10. Nothing has been seen of this alleged distinction in the more recent cases on this subject.

^{page 342 note 16} E.g. The Prior's Case (1368) Co. Litt. 385a, cited Rogers v. Hosegood [1900] 2 Ch. 888, 395Google Scholar; Forster v. Elvet Colliery [1908] 1 K. B. 629, 635, 640Google Scholar; Re Ballard's Conveyance [1937] Ch. 473, 482Google Scholar. Also Spencer's Case (1583) 5 Co. Rep. 16a. See, further, Holdsworth, History of English Law, vol. iii, pp. 161 et seq.

^{page 342 note 17} The rules which govern this matter are stated more fully hereafter.

^{page 342 note 18} Forster v. Eivet Colliery [1908] 1 K. B. 629, A., C.Google Scholar, affirmed on appeal sub nom. Dyson v. Forster [1909] A. C. 98Google Scholar (covenant to pay compensation to surface owners for subsidence caused by working minerals).

^{page 342 note 19} Rogers v. Hosegood [1900] 2 Ch. 388, 395Google Scholar.

^{page 342 note 20} Ibid. at p. 394.

^{page 342 note 21} Presumably this word should have been in the past tense, for when Farwell J. spoke freeholds no longer devolved directly upon the deceased's heir: Land Transfer Act, 1897.

^{page 343 note 22} Rogers v. Hosegood [1900] 2 Ch. 388, per Farwell, J. at pp. 397–8Google Scholar.

^{page 343 note 23} ‘ In my opinion there can be no difference between law and equity in construing such covenants…. I cannot see how such a covenant could run in equity if it did not run at law ’: per Farwell J., Rogers v. Hosegood, supra, at pp. 897–8. That this statement, though rather too sweeping (for, on appeal, it was held that equity will go farther than the law, in exceptional circumstances: see Collins L.J. at p. 404), blazed the trail, can be seen from subsequent dicta; thereafter judges usually inquire simply whether the benefit of the covenant would run at law: Kelly v. Barrett [1924] 2 Ch. 379, 411, per Warrington, L.J.Google Scholar; Torbay Hotel v. Jenkins [1927] 2 Ch. 225, per Clauson, J. at pp. 239, 240Google Scholar (‘ equity, so far as the benefit of the covenant is concerned, merely follows the law, and is resorted to only for the purpose of furnishing the form of remedy (e.g. injunction rather than damage) or of removing such difficulties as that which in fact arose in Rogers v. Hosegood… ’); Re Ballard's Conveyance [1937] Ch. 473, per Clauson, J. at pp. 478–9Google Scholar (‘ the question who can be sued upon the covenant … may depend upon equitable considerations. When, however, the question is who can sue on such a covenant, the question becomes one of law in the strict sense ’). These dicta of Clauson J. appear to imply even that equity's jurisdiction here, though operating against persons who are not bound at law, is ordinarily concurrent only, and are striking evidence of the direction which judicial opinion has taken. In the former case the learned judge actually said (citing the Strathcona Case [1926] A. C. 108, 124)Google Scholar that equity, in such cases, ‘ is exercising its concurrent and auxiliary jurisdiction…and follows the law ’. And in Re Ballard, although the question before him concerned land which was still in the hands of the actual covenantor (who was bound even in law by the covenant), this fact was not mentioned nor was it relevant, for the question at issue (under L. P. Act, 1925, s. 84 (2)) was whether the land was affected by the restriction.

^{page 343 note 24} (1848) 2 Ph. 774, at p. 777.

^{page 343 note 25} Keates v. Lyon (1869) 4 Ch. App. 218, 226Google Scholar; Formby v. Barker [1903] 2 Ch. 539, , C. A., at pp. 547, 555Google Scholar.

^{page 343 note 26} Non-execution by the intended covenantor is not necessarily fatal at law; for if the deed grants land to him he takes the land subject to the conditions on which it is granted: Formby v. Barker, supra, per Vaughan Williams L.J. at p. 549; Elliston v. Reacher [1908] 2 Ch. 665, per Cozens, Hardy M.R.Google Scholar (during argument at p. 669), citing Co. Litt. 230b. Moreover the law may imply in a conditional grant a covenant to observe the condition: Westhoughton U. D. C. v. Wigan Coal Co. [1919] 1 Ch. 159, 189, , C. A.Google Scholar

^{page 344 note 27} Formby v. Barker, supra, at pp. 647, 555. Cf. Re Rutherford's Conveyance [1938] W. N. 69, where Simonds, J.Google Scholar appeared to doubt whether the benefit is then assignable. Equity does not, of course, enforce the contents of a document if the parties did not intend it to bind them or if (as in Re Rutherford's Conveyance) their intentions cannot be ascertained. Hence, as in Elliston v. Reacher, supra, the Court must be satisfied that the failure to execute the covenant was not due to some decision by the parties to have no such covenant or obligation.

^{page 344 note 28} Kelsey v. Dodd (1881) 52 L. J. Ch. 34, per Jessel, M. R. at p. 39Google Scholar; Forster v. Elvet Colliery [1908] 1 K. B. 629, , C. A.Google Scholar; Westhoughton U. D. C. v. Wigan Coal Co. [1919] 1 Ch. 159, , C. A.Google Scholar

^{page 344 note 29} Forster v. Elvet Colliery, supra (covenant ‘ with the said lessors and as separate covenants with other the owners or owner occupiers or occupier of the said lands … or any part thereof ’ to pay compensation for subsidence: held, future owners could not sue as original covenantees, but could sue as owners of land to which the benefit was annexed); Westhoughton U. D. C. v. Wigan Coal Co., supra (similar covenant ‘ with the said lessors their heirs or assigns or the lessees tenants or occupiers of the said lands ’: held, a subsequent lessee cannot sue as original covenantee nor has he an estate to which the benefit was annexed). On similar reasoning it follows that s. 78 (1) of the L. P. Act, 1925, does not enable a covenantee's successor to sue as an original covenantee: see post, notes 47, 97.

^{page 344 note 30} Forster v. Elvet Colliery (see previous note) the words of the covenant owners and occupiers for the time being ' were held to include each person (including Forster) who at the date of the covenant owned any part of the lands concerned. Forster, therefore, as an original covenantee, could have enforced the covenant (and, the covenant being annexed to the land of each owner, purchasers or devisees from such owners could enforce it). See also Re Ecclesiastical Commissioners' Conveyance [1936] Ch. 430Google Scholar (restrictive covenant by purchaser in 1887, ‘ with the Commissioners and their successors and also as a separate covenant with their assigns owners for the time being of the land adjoining the land hereby conveyed ’: held, all the then owners of adjoining lands previously acquired from the Commissioners were original covenantees).

^{page 345 note 31} Unlike a deed poll (a deed made by and expressing the active intention of one party only), an indenture is a deed to which two or more persons are parties and which evidences some act or agreement between them: Halsbury, Laws of England (2nd ed.). vol. x, p. 189. For the origin of indenting, each ‘ party ’ having one of the ‘ parts ’ (containing a copy of the deed) into which the parchment was cut by an indented (or wavy) line, see op. cit. p. 190. After October 1, 1845, a deed may take effect as an indenture though not describing itself as such, and though not indented (see, now, L. P. Act, 1925, s. 56 (2)).

^{page 345 note 32} Forster v. Elvet Colliery, supra; White v. Bijou Mansions [1937] Ch. 610, 623Google Scholar. The rule applied equally to persons claiming an immediate legal interest in land (though not, it seems, a future or an equitable interest, or an interest in personalty) under an indenture (though not a deed poll): ibid.per Simonds J. at pp. 623—625.

^{page 345 note 33} As from October 1, 1845. It abolished the rule also in respect of grants of interests in land (see previous note).

^{page 345 note 34} The reason appears to be that ‘ respecting any tenements or hereditaments ’ (the words of the section) have the same significance as ‘ relating to land ’— a phrase which, when applied to the benefit of a covenant, was usually, intended to mean running with the land: per Farwell, L.J., Forster v. Elvet Colliery [1908] 1 K. B. 629, at pp. 639, 640Google Scholar.

^{page 345 note 35} Forster v. Elvet Colliery, supra, C. A.; the covenant here was capable of running with the land, so the section was applied. On appeal, the House of Lords, per Lord Macnaghten, confirmed the decision but doubted whether the section should be thus confined: Dyson v. Forster [1909] A. C. 98, 102Google Scholar. Despite this dictum, the Court of Appeal, regarding it as obiter, has twice held itself bound by its own decision in that case—viz. that the section is confined to covenants which run with the land: Westhoughton U. D. C. v. Wigan Coal Co. [1919] 1 Ch. 159Google Scholar; Grant v. Edmondson [1931] 1 Ch. 1 (where Farwell, L.J., at p. 28Google Scholar, nevertheless expressed the view that if the section is so interpreted the reference therein to covenants ‘ might just as well have been omitted altogether ’). Compare Luxmoore, J., Re Ecclesiastical Commissioners' Conveyance [1936] Ch. 430Google Scholar, who appeared (obiter, at pp. 437—438) to regard Lord Macnaghten's expression of doubt (above) as stronger than these decisions of the Court of Appeal.

^{page 345 note 36} L. P. Act, 1925, s. 207, and Seventh Schedule.

^{page 345 note 37} Apparently the Courts feel some doubt whether the new section is retrospectively applicable to pre-1926 covenants. In Grant v. Edmondson, supra, the Court of Appeal ignored the new section and applied the original section (covenant dated 1867). In Re Ecclesiastical Commissioners' Conveyance, supra, Luxmoore J. mentioned both sections, but semble applied the new section (covenant dated 1887). In White v. Bijou Mansions [1937] Ch. 610, Simonds, J.Google Scholar applied both sections alternatively, with identical results on the question before him (covenant dated 1890), and expressly refrained (at p. 622) from deciding which was the appropriate section. Compare Zetland v. Driver [1937] Ch. 651Google Scholar, where the covenant was dated 1928 and was therefore governed solely by the later section.

^{page 346 note 38} In White v. Bijou Mansions, supra, Simonds J. gives a neat account of the origin and scope of the mischiefs which the earlier section was designed to remedy, and proceeds to criticize the innovations contained in the new section on various grounds (pp. 623—625).

^{page 346 note 39} Thus the new words, ‘ any covenant … over or respecting land ’ (unlike the words of the earlier section: see note 34, ante) are not particularly appropriate to covenants which run with a covenantee's land. Indeed, the word ‘ over ’ implies that a covenant is within the section if it concerns only land of the covenantor, and that it is then irrelevant to inquire whether it concerns land of the covenatee or even whether he has any land.

^{page 346 note 40} Re Ecclesiastical Commissioners' Conveyance [1936] Ch. 430, 438Google Scholar. This dictum appears to have been obiter, for his conclusion (at p. 441) shows that the covenants before him did in fact run with the lands concerned. ‘ In my judgment the original covenantees and the persons deriving title under them can still sue on the covenants in question although the original covenantees were not parties to the conveyance. ’ Two subsequent decisions (White v. Bijou Mansions, ante; Zetland v. Driver, ante), in which the covenants were not such as would run with the land, did not consider the point—the section being held inapplicable for other reasons (see notes 44—47, post).

^{page 346 note 41} The general requirements for effective annexation are described in subsequent paragraphs.

^{page 346 note 42} E.g. White v. Bijou Mansions [1937] Ch. 610Google Scholar; Re Ecclesiastical Commissioners' Conveyance, supra; Forster v. Elvet Colliery [1908] 1 K. B. 629, , C. A.Google Scholar, affirmed sub nom. Dyson v. Forster [1909] A. C. 98Google Scholar. In Forster v. Elvet Colliery this result was reached by construing a covenant with the vendor and ‘ with the owners for the time being ’ of adjoining lands, as meaning primarily the present owners of such lands. A similar course was adopted also in Westhoughton U. D. C. v. Wigan Coal Co. [1919] 1 Ch. 159, , C. A.Google Scholar, and in Re Ecclesiastical Commissioners' Conveyance, supra.

^{page 346 note 43} An exception exists where the properties are part of a so-called ‘building schema’ (see note 37, post). That the covenant is intended to be made with all owners within the scheme is there sufficiently shown by the surrounding facts.

^{page 347 note 44} White v. Bijou Mansions [1937] Ch. 610Google Scholar, followed, as to Act, L. P., 1925, s. 66, in Zetland v. Driver [1937] Ch. 651Google Scholar.

^{page 347 note 45} [1937] Ch. 610; affirmed on appeal [1938] W. N. 88, the appellants conceding this point.

^{page 347 note 46} [1937] Ch. 651.

^{page 347 note 47} Fergus Morton K. C. (as he then was) argued for the plaintiff that s. 78 (1) of the L. P. Act, 1925, applied to the covenant (‘ A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and his successors in title … and shall have effect as if such successors … were expressed ’), and that it must therefore be read as a covenant ‘ with the vendor and his successors in title ’, and so would include the plaintiff as an original covenantee. The learned judge (Bennett J.) did not deal specifically with this argument; but there would appear to be two possible answers to it: (1) s. 78 applies only to a covenant ‘ relating to land ’ of the covenantee, and so is presumably confined (ante, note 34) to covenants which run with the land (this present covenant did not so run; had it done so, the plaintiff could have sued simply as the owner of the land); (2) only persons presently identified by the covenant can be original covenantees (ante, notes 28, 29).

^{page 347 note 48} Ancient though they were, their activities at common law had hardly extended beyond covenants for title (Rogers v. Hosegood [1900] 2 Ch. 388, 396Google Scholar; Holdsworth, History of English Law, vol. iii, 158—163); and these are now commonly implied by statute (with or without modification), whereupon they run with the covenantee's estate by force of the statute: L. P. Act, 1925, s. 76 (6) (7). Moreover, although at common law the covenants of a lease might run with the land, several judicial warnings show that the rules as to covenants between landlord and tenant are sui generis and inapplicable elsewhere: Haywood v. Brunswick Building Soc. (1881) 8 Q. B. D. 403, , C. A., 410Google Scholar; Austerberry v. Oldham (1885) 29 Ch. D. 750, , C. A., 781Google Scholar; Grant v. Edmondson [1931] 1 Ch. 1, , C. A., 32Google Scholar.

^{page 348 note 49} Re Ballard's Conveyance [1937] Ch. 473, 479—480Google Scholar. In Kelly v. Barrett [1924] 2 Ch. 379Google Scholar (restrictive covenant annexed to road retained by covenantee, surface of road subsequently taken over by local authority, successor to subsoil sues on covenant), Tomlin J. held that plaintiff could not sue the covenantor's successor because, inter alia, he does not ‘ sue in respect of the estate or interest which belonged to his predecessor ’ (p. 396). The Court of Appeal affirmed the decision, but not, semble, on this ground; and it would seem that it cannot be supported on this ground, for questions of area appear to be irrelevant (see notes 60, 61, post).

^{page 348 note 50} ‘ The questions which have arisen with respect to the devolution of the benefit of [restrictive] covenants have been decided without reference to any technical distinctions depending upon the covenants running or not running [at law] with the land ’: Keates v. Lyon (1869) 4 Ch. App. 218, 223Google Scholar.

^{page 348 note 51} As to building schemes, see post, § 4. That they enable a vendor to take covenants in favour of plots previously sold is not really exceptional, semble (see notes 30, ante, 31 post).

^{page 348 note 52} Torbay Hotel v. Jenkins [1927] 2 Ch. 225 (covenantee had previously sold the land concerned), at pp. 239, 240Google Scholar; Rogers v. Hosegood [1900] 2 Ch. 388, 395Google Scholar. Some passages in Keates v. Lyon, supra, at pp. 226, 227 (see also Reid v. Bickerstaff [1909] 2 Ch. 305, 326)Google Scholar, suggest that a covenant may conceivably be annexed in equity to land which the covenantee expects to acquire in the future; but this seems to be inconsistent with later decisions. Even the burden of the covenant does'not now run in equity if, at the date of the covenant, the covenantee has no land to be benefited by it: see note 14, ante.

^{page 348 note 53} Rogers v. Hosegood [1900] 2 Ch. 388Google Scholar. The covenantees had previously mortgaged the land, and so had but an equity of redemption at the date of the covenant. The point was not raised before Farwell J., but was raised and decided in the Court of Appeal (at p. 404). Although counsel for the plaintiff (Haldane Q.C. at p. 401) claimed only that the covenant ran with the equitable ownership, the Court said that it ran with the land.

^{page 349 note 54} Spencer's Case (1583) 5 Co. Rep. 16Google Scholar (fourth resolution, quoted Cheshire, op. cit. 213).

^{page 349 note 55} In Westhoughton U. D. C. v. Wigan Coal Co. [1919] 1 Ch. 159, 170Google Scholar. Swinfen Eady M. R. evidently assumed this to be so at law, when he indicated that had the plaintiff's lease existed at the date of the (positive) covenant he could have sued the covenantor (a subjacent lessee) under R. P. Act, 1845, s. 5; for the section was held to apply only to a covenant running with the land (ante, note 35). It is so by statute as regards the benefit of covenants for title given to the purchaser of a lease: L. P. Act, 1925, ss. 76 (1), (6); 77 (1), (5); replacing similar provisions of the Conveyancing Act, 1881'. It is so in equity also – e.g. when a building scheme exists: Pearce v. Maryon-Wilson [1935] Ch. 188Google Scholar; Spicer v. Martin (1889) 14 App. Cas. 12, 25Google Scholar.

^{page 349 note 56} In Forster v. Elvet Colliery [1908] 1 K. B. 629, C. A., per Cozens, Hardy M. R., at p. 636Google Scholar, and again inWesthoughton U. D. C. v. Wigan Coal Co. [1919] 1 Ch. 159, C. A., per Swinfen, Eady M. R., at pp. 169, 170Google Scholar, it was indicated that the positive covenants, there made vith (inter alia) ‘ the occupiers or occupier for the time being ’ of subjacent land at the date of the covenant, could run with the estates of present occupiers; for it was implied that E. P. Act, 1845, s. 5, would enable them to enforce the covenant, and this section was held to apply only to covenants running with the land. But see note 58, post, as to the dangers of arguing by analogy on this subject.

^{page 349 note 57} Grant v. Edmondson [1930] 2 Ch. 245Google Scholar; [1931] 1 Ch. 1, C. A.;Torbay Hotel v. Jenkins [1927] 2 Ch. 225, 299Google Scholar; Haywood v. Brunswick Building Society (1881) 8 Q. B. D. 403, A., C.Google Scholar (summarized post, note 59). Wolstenholme and Cherry's Conveyancing Statutes (12th ed.), p. 356, suggests that, since the Law of Property Act, 1925, defines ‘ land ’ as including a rentcharge (s. 205 (1) (ix)) and enacts (s. 78) that a covenant ‘ relating to land ’ is deemed to, be made with the covenantee and his successors in title, the position is now reversed. But in Grant v. Edmondson the covenant was made with the covenantee and his successors in title, yet it did not run with the rentcharge. Moreover, the words ‘ relating to land ’ appear to confine the operation of this section to covenants which would run with land at common law: see notes 34, 47, ante.

^{page 349 note 58} In Grant v. Edmondson, supra, the Court of Appeal was not clear whether earlier decisions that covenants cannot be annexed to a rentcharge rest upon its incorporeal nature or whether the rule is merely arbitrary (e.g. Lawrence L.J. at p. 26). Romer L.J. (at p. 28) thought all the common law rules as to covenants running with land so arbitrary and illogical as to preclude any reasoning by analogy. In Miles v. Branch (1816) 5 M. & S: 411, 417, borough, Lord EllenGoogle Scholar said that though covenants can run with land, a rentcharge is not land (meaning, presumably, that it is not a corporeal interest). See also Co. Lit. 47a, 121a (quoted Holds worth, History of English Law, iii, 165) to the effect that a thing incorporeal cannot properly be append ant to a thing incorporeal.

^{page 349 note 59} The facts ofHay wood v. Brunswick Building Society, supra (vendor sold land in consideration of a rentcharge and a covenant to build on the land; held, his successor to the rentcharge cannot sue purchaser's successor on the covenant (i) because the burden of a positive covenant cannot run with land; (ii) because the benefit of a covenant cannot run with a rentcharge) show that the value of a rentcharge may well be much affected by the observance or non-observance of covenants as to the user of the land charged thereby. In Torbay Hotel v. Jenkins, supra, there was a restrictive covenant, but no attempt had been made to annex the benefit of it to the rentcharge reserved by the covenantee.

^{page 350 note 60} This was so at law as to covenants for title: Rogers v. Hosegood [1900] 2 Ch. 388, 396Google Scholar. In Westhoughton U. D. C. v. Wigan Coal Co. [1919] 1 Ch. 159, 176Google Scholar (action at law on positive covenant), Duke, L.J. said, obiter: ‘ The reasons which underlie the common law rule as to the destruction of a condition by the severance … of the estate which was subject to the condition do not seem to me to apply to the case of a covenant. ’ Compare the rule that, despite s. 136 of the Law of Property Act, 1925, an assignment of part of a chose in action operates only in equity: Williams v. Atlantic Assurance Co. [1933] 1 K. B. 81Google Scholar. See also note 20, post, for an obscure dictum which might almost be read to mean that covenants cannot at law be annexed to every part of the land.

^{page 350 note 61} E.g. Drake v. Gray [1936] Ch. 451, , C. A.Google Scholar This and similar decisions are considered post in relation to the other essentials of effective annexation.

^{page 350 note 62} Westhoughton U. D. C. v. Wigan Coal Co., supra, per Cozens-Hardy M.R. (Eve J. concurring), at pp. 170, 171. Duke L.J., at p. 176, appeared to doubt it, but thought it unnecessary to decide. It is historically correct, however: see Holds worth, History of English Law, viol. iii, 158.

^{page 350 note 63} Westhoughton U. D. C. v. Wigan Coal Co., supra, at pp. 170, 171; Tate v. Gosling (1879) 11 Ch. D. 273Google Scholar. Presumably equity would also allow derivative equitable owners (e.g. for life or in tail) to enforce the covenant, either directly or via their trustees.

^{page 350 note 64} Holds worth, History of English Law, viol. iii, 158.

^{page 350 note 65} In Torbay Hotel v. Jenkins [1927] 2 Ch. 225, Clauson, J. indicated, at p. 239Google Scholar, that apart from the ‘ building scheme ’ cases (post, § 4) this is the only respect in which equity departs from the common law rules or annexation.

^{page 350 note 66} Whether the benefit would pass with the land to a squatter appears not to have been decided (cp. note 5, ante). It is regarded as annexed to the land although made with a mere equitable owner: see note 63, ante.

^{page 351 note 67} Thus Clauson, J. in Re Ballard's Conveyance [1937] Ch. 473, 479Google Scholar, purporting to state and apply to a restrictive covenant the common law rules, said: ‘ The first question is: what is the land for the benefit of which the ’ covenant was taken? The next question will be: Is the person who claims to enforce the covenant seised of the land by title derived through or under the original covenantee?'

^{page 351 note 68} The alternative form is almost invariably, used. ‘Touch and concern’ (e.g. Rogers v. Hosegood [1900] 2 Ch. 388, 404Google Scholar) is rare.

^{page 351 note 69} See Re Bollard's Conveyance [1937] Ch. 473, 482Google Scholar.

^{page 351 note 70} The distinction between things ‘ in esse ’ and things ‘ in posse ’ (Cheshire, op. cit. 213) appears not to have arisen in relation to restrictive covenants, perhaps because, although such a covenant may concern something not yet in existence (e.g. the user or enjoyment of houses not yet built) it does not compel the covenantor to do anything.

^{page 351 note 71} See Rogers v. Hosegood, supra. Farwell J. said, at p. 395: ‘ Adopting the definition of Bayley J. in Congleton Corporation v. Pattison [quoted Cheshire, op. cit. 211] the covenant must affect the land as regards mode of occupation, or it must be such as per se, and not from collateral circumstances, affects the value of the land ’, and he held (without considering the question of ‘ collateral circumstances ’) that the latter alternative was satisfied. The Court of Appeal, at p. 404, said merely that the restrictive covenants in question undoubtedly ‘ touched and concerned ’ the land so as to run at law, but indicated at p. 407 that they would not run at law if ‘ merely personal and collateral ’. For the application of this rule in common law cases see Forster v. Elvet Colliery [1908] 1 K. B. 629, A., C.Google Scholar; Dyson v. Forster [1909] A. C. 98Google Scholar.

^{page 351 note 72} In Rogers v. Hosegood, supra, at pp. 395, 401, Farwell J. applied only the ‘ value ’ test, and counsel in the Court of Appeal relied on it. In Forster v. Elvet Colliery, supra, at pp. 635, 638, 640, all three judges of the C. A. stated it BB the test to be applied, Cozens-Hardy M.R. (at p. 635) stating it to be the common law test for cases not between lessor and lessee. But in Dyson v. Forster, supra, at.p. 102 (followed by Duke, L.J. in Westhoughton U. D. C. v. Wigan Coal Co. [1919] 1 Ch. 159, 175)Google Scholar the House of Lords, per Lord Macnaghten, stated the rule more widely: ‘ The question is, Does this covenant affect the nature, quality or value of the land, or is it a covenant simply collateral? ’ The three last-mentioned were purely common law decisions.

^{page 351 note 73} Forster v. Elvet Colliery, supra, per Cozens-Hardy M.R. at p. 635.

^{page 351 note 74} See note 72, ante.

^{page 352 note 75} Zetland v. Driver [1937] Ch. 651, 660Google Scholar (both ‘ value ’ and ‘ mode of occupation ’ tests applied to a restrictive covenant); Re Ballard's Conveyance [1937] Ch. 473, 480Google Scholar. In Kelly v. Barrett [1924] 2 Ch. 379, Tomlin, J.Google Scholar held value irrelevant if the restrictive covenant will ‘ secure a particular character to the land ’ (p. 660). The tests applied in the C. A. were: (i) per Warrington L.J. (p. 411), may the land be reasonably regarded as capable of being affected by the performance or breach of the obligation; (ii) per Sargant L.J. (pp. 414, 415), the occupation or enjoyment of the land must be capable of being affected by the prohibited user; (iii) per Pollock M. R. (p. 403), the restrictive covenant ‘ must have some connexion with ’ the covenantee's land, ‘ in the sense of an interest which unites the two pieces of land ’, otherwise it is too remote.

^{page 352 note 76} Thus, in Kelly v. Barrett, supra, all four judges were unanimous that, though a restrictive covenant may conceivably ‘ touch or concern ’ the site and soil of a road and be annexed to it, a subsequent owner of the mere subsoil of the road cannot, as such, enforce it, for it does not ‘ touch or concern ’ the mere subsoil. Decisions on annexation where the plaintiff has only part of the land concerned turn usually on the 3rd rule, post.

^{page 352 note 77} See note 83, post.

^{page 352 note 78} [1937] Ch. 651.

^{page 352 note 79} This argument may be correct for ‘ building scheme ’ cases; here it may suffice, in an action by the original vendor on behalf of the owners of the various plots, that the covenant benefits the area as a whole: Northbourne v. Johnston [1922] 2 Ch. 309Google Scholar. See note 55, post.

^{page 353 note 80} Zetland v. Driver, supra, at p. 661.

^{page 353 note 81} In Re Bollard's Conveyance [1937] Ch. 473, at pp. 481, 482, J., ClausonGoogle Scholar indicated (consistently, it is thought, with the authorities) that the question whether a covenant ‘ touches or concerns ’ the land is a question of fact, not of the intention of the parties. In Zetland v. Driver, supra (at pp. 654, 655), counsel contended (i) that this was a stronger case because (unlike Re Ballard) the covenant was expressly intended to run with ‘ every part ’ of the land, and (ii) that if the covenant is intended to run the onus should be on the defendant to prove that it does not ‘ touch or concern ’ the whole of the land; but the learned judge ignored these contentions.

^{page 353 note 82} In Re Ballard this was clearly so (ibid. p. 480). In Zetland v. Driver the statement of facts suggests it, for nothing is said of any intervening sales.

^{page 353 note 83} In each case the learned judge stated this to be so; but whereas this may have been the ratio decidendi of Re Ballard (see pp. 480, 481), that case was treated' in Zetland v. Driver (p. 658) as deciding that the covenant must touch or concern every part of the land, and was so applied (at p. 660).

^{page 353 note 84} [1900] 2 Ch. 388, 396, per Farwell J.; also per Collins L.J. (referring to Renals v. Cowlishaw, post), at pp. 407, 408. The effect of surrounding circumstances is most striking in the cases on building schemes: ibid, at pp. 397, 408. Building schemes are considered hereafter (post, § 4).

^{page 353 note 85} Ibid, at p. 397.

^{page 353 note 86} Renals v. Cowlishaw (1879) 11 Ch. D. 866, per James, L.J. at p. 868Google Scholar; Re Union Bank's Conveyance, Miles v. Easter [1933] Ch. 611, at pp. 620, 621 (Tomlin J.), 628, , C. A.Google Scholar

^{page 353 note 87} Per Greene, L.J., Drake v. Gray [1936] Ch. 451, 466Google Scholar.

^{page 353 note 88} A still stronger indication, frequently found, of intention to run is ‘ with the vendor and his successors in title [or heirs and assigns ] or other the owner or owners for the time being of the said lands or any part thereof ’. See Re Union Bank's Conveyance, Miles v. Easter [1933] Ch. 611, 624Google Scholar; Drake v. Gray, supra, at pp. 459, 463.

^{page 354 note 89} See Reid v. Bickerstaff [1909] 2 Ch. 305, per Cozens-Hardy, M.E. (pp. 320, 321), and Buckley, L.J. (p. 325)Google Scholar; Re Sunnyfield [1932] 1 Ch. 79, 84Google Scholar; Re Ecclesiastical Commissioners' Conveyance [1936] Ch. 430, 437Google Scholar.

^{page 354 note 90} Re Union Bank's Conveyance, supra, C. A., at p. 628; Drake v. Gray, supra. This is usually done by stating that the covenant is (i) with the covenantee and his successors, owners for the time being of, or (ii) for the benefit of, ‘ the land or any part thereof ’. But in rare circumstances, as in Drake v. Gray, such clear indications are not essential. It is not enough, semble, that the covenant is expressed to be made ‘ with the covenantee and other the owners or owner for the time being ’ of the land concerned (ibid.), for ‘ owners ’ may mean merely concurrent owners of the whole.

^{page 354 note 91} [1900] 2 Ch. 388.

^{page 354 note 92} (1878) 9 Ch. D. 125; (1879) 11 Ch. D. 866, C. A.

^{page 354 note 93} See note by Mr. H. A. Hollond, 49 L. Q. R. 483.

^{page 354 note 94} Re Union Bank's Conveyance, Miles v. Easter [1933] Ch. 611, , C. A., 629Google Scholar.

^{page 354 note 95} Rogers v. Hosegood [1900] 2 Ch. 388, 396Google Scholar; fie Union Bank's Conveyance, supra, C. A., at p. 629. Apparently, however, the word ‘ assigns ’ has always been a sufficient indication that the burden is intended to run with the covenantor's land—presumably because the burden of a contract, unlike the benefit, is not assignable per se. By L. P. Act, 1925, s. 79, a restrictive covenant is now deemed to extend to subsequent owners and occupiers of the restricted land, unless it expresses a contrary intention.

^{page 354 note 96} Compare Re Ecclesiastical Commissioners' Conveyance [1936] Ch. 430, 440, where Luxmoore, J.Google Scholar is reported as saying that s. 58 enabled assigns of the covenantee's land, or even of any part thereof, to take the benefit of a covenant. In fact a., 58 did not say what kind of assigns are deemed to be included in the covenant. The word ‘ assigns ’ is frequently found in these covenants. But, although the common law may have regarded it as an important indication that the covenant was intended to run, equity did not: hence its unimportance in restrictive covenants. See the dicta, during argument, in Renals v. Cowlishaw (1878) 9 Ch. D. 125, 129 (per Hall, V.-C.)Google Scholar; ibid. (1879) 11 Ch. D. 866, 868 (per James L.J.). See also Rogers v. Hosegood [1900] 2 Ch. 388, 397Google Scholar, that the rules of construction applied to restrictive covenants by law and equity are identical (the covenant there was made before the Act of 1881, but expressly mentioned ‘ assigns ’). The probable function, therefore, of s. 58 was to remove a possibility that a covenant would not run at law if it lacked the word ‘ assigns ’. See Forster v. Elvet Colliery [1908] 1 K. B. 629 (an action at law on a positive covenant), where Cozens-Hardy, M.R., at pp. 635, 636Google Scholar, implied that the common law had required words of limitation if a covenant was to run— ‘ heira ’ to cover heirs or devisees of the covenantee, ‘ assigns ’ to include his grantees—and that s. 58 implies those words for that reason: the other dicta state that s. 58 implies those words, to what end is not disclosed; on appeal sub nom. Dyson v. Forster [1909] A. C. 98Google Scholar the section was not mentioned (cf. Wolstenholme and Cherry's Conveyancing Statutes, 12th ed. i, 360, which citeB the latter case alone as ‘ an example of the operation of this section ’).

^{page 355 note 97} Thus, (i) it refers only to covenants ‘ relating to the lan ’ of the oovenantee, and so is apparently restricted to covenants which are capable of running with the land—see note 34, ante; (ii) it does not (cf. s. 79) permit exclusion by an expressed contrary intention—query whether (i) corrects this difficulty; (iii) it does not imply any words (e.g., ‘ or any part thereof ’) adequate to annex the covenant to every portion of the land—see note 90, ante (compare Luxmoore J.'s dictum, ante, note 96); (iv) it enacts that the covenant is deemed to be made with (inter alios) ‘ the owners and occupiers for the time being ’: so far as this means present owners (and perhaps even present ‘ occupiers ’—but the dicta as to this word are conflicting, see Forster v. Elvet Colliery [1908] 1 K. B. 629, 636, 687, 641Google Scholar) it may thereby operate, with the help of L. P. A., 1925, s. 56, to make them original covenantees (see note 30, ante): so far as it means future owners and occupiers, it seems to be surplusage except as evidence of intention to run (see notes 29, 47, ante).

^{page 355 note 98} Counsel, in Zetland v. Driver [1937] Ch. 651, 653, 654Google Scholar, urged that (taken with s. 56 of the L. P, A., 1925) it enables a covenantee's successor to sue as an original covenantee. But this cannot (see note 47, ante) be supported. levible.

^{page 355 note 99} See note 20, ante.

^{page 355 note 1} Rogers v. Hosegood [1900] 2 Ch. 388, 408Google Scholar.

^{page 356 note 2} Formby v. Barker [1903] 2 Ch. 539, per Bomer, L.J. (during argument), at pp. 542, 543Google Scholar; Chambers v. Randall [1923] 1 Ch. 149, 157Google Scholar; Re Bollard's Conveyance [1937] Ch. 473, 478Google Scholar. Presumably he or his representatives retain any right to sue for damages for breaches committed while he had the land (see Formby v. Barker, supra, per Vaughan Williams L.J., at pp. 549, 550), Compare ‘building schemes’—original vendor may sue as trustee for his purchasers, semble; see Kelly v. Barrett [1924] 2 Ch. 379, 389 (Tomlin, J. during argument)Google Scholar; Northbourne v. Johnston [1922] 2 Ch. 309Google Scholar; post, § 4, note 55.

^{page 356 note 3} And if it was annexed to every part of the land, the sale of a part precludes him from giving a complete release—except as against himself and any land still in his hands: Keates v. Lyon (1869) 4 Ch. App. 218Google Scholar; Rogers v. Hosegood [1900] 2 Ch. 388, 398Google Scholar; Osborne v. Bradley [1903] 2 Ch. 446, 454Google Scholar; Kelly v. Barrett [1924] 2 Ch. 379, 390Google Scholar. Aliter if the covenant gives him full power to do so, semble, as is usual in ‘ building schemes ’; see also Zetland v. Driver [1937] Ch. 651, 658Google Scholar (a covenant may be so framed as to run until a specified event).

^{page 356 note 4} Re Bollard's Conveyance [1937] Ch. 473, 482Google Scholar; Rogers v. Hosegood [1900] 2 Ch. 388, 395Google Scholar. The covenantee is therefore free to release it (unless he has assigned it specifically with the land): Reid v. Bickerstaff [1909] 2 Ch. 305, per Cozens-Hardy, M.R. at p. 320Google Scholar.

^{page 356 note 5} See post, § 4, as to building schemes.

^{page 356 note 6} Rogers v. Hosegood supra, per Farwell J. at p. 394. See also arguments of Counsel ibid. p. 401; Dyson v. Forster [1909] A. C. 98, 100Google Scholar.

^{page 356 note 7} Reid v. Bickerstaff [1909] 2 Ch. 305, , C. A.320Google Scholar.

^{page 356 note 8} Judicature Act, 1873, s. 25 (6), replaced by Law of Property Act, 1925, s. 136. If as has been said (Torkington v. Magee [1902] 2 K. B. 427, 430Google Scholar), the enactment applies only td a right which the common law did not regard as assignable, it may be inapplicable to a covenant which touches or concerns land.

^{page 357 note 9} Re Union Bank's Conveyance, Miles v. Easter [1933] Ch. 611, , C. A.629, 630, takes this point as to assignees of the covenant (see further notes 14, 2, pp. 341, 339, ante)Google Scholar.

^{page 357 note 10} Formby v. Barker [1903] 2 Ch. 539, C. A., per Romer, L.J. (during argument) at p. 546Google Scholar.

^{page 357 note 11} Formby v. Barker, supra; Chambers v. Randall [1923] 1 Ch. 149Google Scholar. Nor, a fortiori, can they assign the benefit of it: Re Rutherford's Conveyance [1938] W. N. 69Google Scholar.

^{page 357 note 12} Renals v. Cowlishaw (1878), 9 Ch. D. 125, per Hall, V.-C. at pp. 129—131Google Scholar. This much quoted judgment has been adopted with enthusiasm by many subsequent decisions—e.g. ibid. (1879) 11 Ch. D. 866, C. A.; Spicer v. Martin (1889) 14 App. Cas. 12 (where also it was said that the decision should not be extended)Google Scholar.

^{page 357 note 13} E.g. throughout the judgments of Bennett, J. and the Court of Appeal in Re Union Bank's Conveyance, Miles v. Easter [1933] Ch. 611Google Scholar(where there was in fact an express assignment; but other dicta there showed that it is not in fact so limited—see note 14, post); Re Sunnyfield [1932] 1 Ch. 79, 85Google Scholar; Cheshire, op. cit. 204.

^{page 357 note 14} Renals v. Cowlishaw, supra, at pp. 129, 130, 131; Re Union Bank's Conveyance, Miles v. Easter, supra, at pp. 628 (quoting Hall V.-C), 632 (‘ independent transaction ’), 638 (‘ in the contract of sale ’); Drake v. Gray, [1936], Ch. 451, 455Google Scholar; White v. Bijou, Mansions, [1937] Ch. 610, 622Google Scholar (implying that a covenant may be assigned ‘ by implication ’).

^{page 357 note 15} See now Law of Property Act, 1925, s. 62.

^{page 357 note 16} ‘ It may well be that the right to sue thereon cannot be said to belong, or to be reputed to belong, thereto; but I express no final opinion on this point ’— per Farwell, J., Rogers v. Hosegood [1900] 2 Ch. 388, 398Google Scholar.

^{page 357 note 17} Apparently the fact that the purchase includes the whole of the land may help to raise an inference that the vendor intended the benefit of the covenant to pass with it; Renals v. Cowlishaw, supra, per Hall V.-C. at pp. 129, 130; Reid v. Bickerstaff [1909] 2 Ch. 305Google Scholar, per Buckley L.J. at p. 325. See also note 20, post.

^{page 358 note 18} See the decisions of Sargant, J. in Ives v. Brown [1919] 2 Ch. 815Google Scholar, and Northbourne v. Johnston [1922] 2 Ch. 309Google Scholar, as explained by him in Chambers v. Randall [1923] 1 Ch. 149, 159Google Scholar, and by the Court of Appeal in Re Union Bank's Conveyance, Miles v. Easter [1933] Ch. 611, 633, 634Google Scholar. See, further, note 26, post.

^{page 358 note 19} [1933] Ch. 611, at pp. 629–638.

^{page 358 note 20} Romer L.J. delivering the judgment of the Court, stated (ibid. at p. 630) when dealing with express assignments, that equity here permits assignments to ‘ persons to whom the benefit of the covenant could not have been assigned at law. For at law … it would have to be assigned as a whole or not at all ’. Whether this means that even the common law allowed express assignment with the whole of the land, or merely that statutory assignments of a chose in action must comprise the whole of it (ante, note 60), is not clear.

^{page 358 note 21} The rule is so stated (ibid. at p. 632, 638); but the reasoning on which it is founded (pp. 632, 633) suggests strongly that a subsequent assignment, not in pursuance of any undertaking given at the time of the sale, would be ineffective even if the covenantee was still possessed of some of the land. The question in the case was whether Easter, to whom the covenantee had purported to assign the benefit of two separate restrictive covenants by separate assignments, could enforce the restrictions: held (1) the assignment of the first covenant failed on grounds (ii) and (iii), and probably failed also on ground (v) (a); (2) the assignment of the second covenant failed on ground (v), the covenantee having previously disposed of the whole of his land (a similar decision is Re Rutherford's Conveyance [1938] W. N. 69Google Scholar).

^{page 358 note 22} Ante, § 2.

^{page 359 note 23} In Re Union Bank's Conveyance, Miles v. Easter [1933] Ch. 611Google Scholar, Romer L.J. delivering the judgment of the Court, analysed the cases, and proceeded (at p. 631): ‘ It is plain, however, from these and other cases, and notably that of Renals v. Cowlishaw, that if the restrictive covenant be taken not merely for some personal purpose or object of the vendor, but for the benefit of some other land of his in the sense that it would enable him to dispose of that land to greater advantage, that covenant, though not annexed to such land so as to run with any part of it, may be enforced against an assignee of the covenantor taking with notice, both by the covenantee and by persons to whom the benefit of such covenant has been assigned, subject, however, to certain conditions. In the first place, the “ other land ” must be capable of being benefited by the covenant—otherwise it would be impossible to infer that the object of the covenant was to enable the vendor to dispose of his land to greater advantage. … ’

^{page 359 note 24} James, L.J. in Renals v. Cowlishaw (1879) 11 Ch. D. 866, 868Google Scholar, appears to state this as a general rule applicable to all aasignees, whether of the land or of the covenant (he was perhaps thinking only of annexation). Bennett, J. in Re Union Bank's Conveyance, Miles v. Easter [1933] Ch. 611, 625Google Scholar, applied his dictum to express assignments; but the Court of Appeal (ibid. 632) applied only dicta from other cases: ‘ in the next place, this land must be “ ascertainable ” or “ certain ”, to use the words of Romer and Scrutton L.JJ. respectively ’ (i.e., in Formby v. Barker [1903] 2 Ch. 539, 554Google Scholar; L. C. C. v. Allen [1914] 3 K. B. 642, 672Google Scholar). Surrounding circumstances are ordinarily taken into account in construing a document: see ante, § 2, 3rd rule.

^{page 360 note 25} Hall, V.-C. in Renals v. Cowlishaw (1878) 9 Ch. D. 125, at pp. 129, 130Google Scholar (quoting from Master v., Hansard 4 Ch. D. 724) gave this as the test (he said also, at p. 129, that the fact that a plaintiff has acquired the whole of the land may be important; but this was evidently directed to the more general question whether the covenant was intended to run, or to be assignable, with a mere part of the land). See also Ives v. Brown [1919] 2 Ch. 315, 823Google Scholar; Chambers v. Randall [1923] 1 Ch. 149, 156Google Scholar; Re Union Bank's Conveyance, Miles v. Easter, supra, C. A. at pp. 681, 632.

^{page 360 note 26} Apparently the only cases of successful assignees are Ives v. Brown, supra (personal representatives of covenantee, i.e. assigns by operation of law), and Northbourne v. Johnston [1922] 2 Ch. 309Google Scholar (trustees of land for A, sold part, taking a covenant; then conveyed the remainder to A; A died, leaving X her executor and devisee; trustees assigned covenant to X). As to them, see note 18, p. 358, ante.

^{page 360 note 27} Re Union Bank's Conveyance, Miles v. Easter [1933] Ch. 611, 621Google Scholar.

^{page 360 note 28} Rogers v. Hosegood [1900] 2 Ch. 388, C. A., per Collins, L.J. at p. 408:Google Scholar ‘ When there is no indication in the original conveyance, or in the circumstances attending it, that the covenant is imposed for the benefit of the land reserved, or any particular part of it, then it becomes necessary to examine the circumstances under which any part of the land reserved is sold, in order to see whether a benefit, not orginally annexed to it, has become annexed to it on the sale, so that the purchaser is deemed to have bought it with the land ’. The same is clearly implied by Hall V.-C. in Renals v. Cowlishaw, supra, at p. 131; and by Cozens-Hardy, M.B. in Reid v. Bickerstaff [1909] 2 Ch. 305, 320Google Scholar (quoted in Millbourn v. Lyons [1914] 2 Ch. 231, , C. A.243Google Scholar). See, further, note 31, post.

^{page 360 note 29} E.g. Re Union Bank's Conveyance, Miles v. Easter, supra.

^{page 360 note 30} This ignores, of course, assignments of the purely legal right to sue the original. covenantor for damages. Such assignments may conceivably be divorced from the covenantee's land. But see note 8, p. 356, ante.

^{page 361 note 31} That identical facts may enable a covenant both to run and to be assignable is shown by the recent case Zetland v. Driver [1937]. Ch. 651, 658Google Scholar, in which Bennett J. held that a restrictive covenant can, if so expressed, run with the land until a prescribed event (e.g. sale) occurs, and thereafter pass with the land only if expressly assigned. There is, perhaps, no unequivocal authority that the rules coincide. But the benefit of a covenant in a ‘ building scheme ’ (post) is said to pass by implied assignment to a purchaser from the covenantee (Elliston v. Reacher [1908] 2 Ch. 374, 385, per Parker, J.Google Scholar; see note 42, post) and here it undoubtedly runs with the purchaser's land (e.g. ibid. at p. 392).

^{page 361 note 32} E.g. Whatman v. Gibson (1838) 9 Sim. 196Google Scholar; Coles v. Sims (1853) Kay 56Google Scholar. See Keates v. Lyon (1869) 4 Ch. App. 218Google Scholar. In Elliston v. Reacher [1908] 2 Ch. 374, 665, C. A.Google Scholar, a mutual deed of covenant was intended to be used, and a specimen copy shown to each purchaser, but it was never executed.

^{page 361 note 33} In fact the Real Property Act, 1845, s. 5, removed the difficulty as regards plots previously sold; for, thereafter, each purchaser could covenant ‘with the owners for the time being’ (without naming them as parties) of such plots (ante, § 2). But this was not fully realized until Dyson v. Forster [1909] A. C. 98Google Scholar, by which time special rules had been developed for building schemes to meet the difficulty.

^{page 361 note 34} See note 41, post.

^{page 361 note 35} A ‘building scheme’ may equally arise where the plots were leased (Spicer v. Martin (1889) 14 App. Cas. 12Google Scholar; Pearce v. Maryon-Wilson [1935] Ch. 188Google Scholar), or where the plots have already been built upon (Torbay Hotel v. Jenkins [1927] 2 Ch. 225Google Scholar). And even if there is technically no ‘ building scheme ’, the surrounding facts may justify analogous treatment (see Rogers v. Hosegood [1900] 2 Ch. 388, 397Google Scholar and cases there cited).

^{page 362 note 36} Renals v. Cowlishaw (1878) 9 Ch. D. 125, 129, per Hall, V.-C.Google Scholar (summarizing the effect of previous decisions); quoted with approval in Spicer v. Martin (1889) 14 App. Cas. 12, 23–24Google Scholar.

^{page 362 note 37} See Elliston v. Reacher [1908] 2 Ch. 374, 384Google Scholar, for the classic statement of the four essentials of a building scheme (summarized Cheshire, op. cit. 306). ‘ If these four points be established I think that the plaintiffs would in equity be entitled to enforce the restrictive covenants entered into by the defendants. or their predecessors with the common vendor irrespective of the dotes of their respective purchases ’—per Parker J. ibid. For the distinction between a building scheme and a mere building agreement, see Kelly v. Barrett [1924] 2 Ch. 379Google Scholar (particularly the judgment of Sargant L.J.).

^{page 362 note 38} The cases suggest that the production of such a plan is almost essential. Many failures have turned on the lack of an adequate plan; e.g. Osborne v. Bradley [1903] 2 Ch. 446Google Scholar; Reid v. Bickerstaff [1909] 2 Ch. 305Google Scholar; Kelly v. Barrett [1924] 2 Ch. 879Google Scholar; Torbay Hotel v. Jenkins [1927] 2 Ch. 225Google Scholar. ‘ Nor would it be reasonable for me to draw the inference that a person coming in and buying intends to be bound to an unknown number of unknown persons in respect of an estate which, so far as it has been sold, is undefined ’—per Farwell J., Osborne v. Bradley, supra, at p. 453.

^{page 362 note 39} In Elliston v. Reacher, supra, each prospective purchaser was given a copy of the sale plan, on which the common covenants were endorsed (and of a proposed mutual deed of covenant which contained them, but which was not in fact executed by the purchasers). The covenants need not be identical throughout the scheme (Reid v. Bickerstaff, supra, at p. 319), so long as each purchaser is fully informed of this (White v. Bijou Mansions [1938] W. N. 88, , C. A.Google Scholar).

^{page 362 note 40} The vendor need not himself make covenants with the purchaser as to plots still unsold (Nottingham Patent Brick Co. v. Butler (1886) 16 Q. B. D. 778, 784Google Scholar). Nor does a dispensing power, or power to release, invalidate the scheme: see Elliston v. Readier, supra, C. A. at pp. 672, 674 (where Farwell L.J. resiled from his apparent opinion in Osborne v. Bradley., supra, to the contrary); Ridley v. Lee [1935] Ch. 591, 602Google Scholar. Unless expressly reserved in every sale, the vendor under a building scheme has no such power (Pearce v. Maryon-Wilson [1935] Ch. 188, 192Google Scholar). The fact that a single purchaser buys several lots is no objection: Elliston v. Reacher, supra, at pp. 672, 673.

^{page 363 note 41} Spicer v. Martin (1889) 14 App. Cas. 12, 25Google Scholar. See also Elliston v. Reacher, supra, at pp. 384, 385; Reid v. Bickerstaff, supra, at pp. 319, 323. Moreover, such a purchaser may be bound in equity by the covenants in the scheme of which he was aware, although he does not (the vendor haying no dispensing power) expressly undertake them in his purchase deed: Knight v. Simmonds [1896] 1 Ch. 653Google Scholar; 2 Ch. 294; Rowell v. Satchell [1903] 2 Ch. 212Google Scholar. This follows from equity's attitude to a deed, see notes 24, 25, pp. 359—360, ante.

^{page 363 note 42} Parker J. in his famous judgment in Elliston v. Reacher [1908] 2 Ch. 374, at p. 385Google Scholar, said that equity's intervention ‘ has been sometimes explained by the implication of mutual contracts between the various purchasers, and sometimes by the implication of a contract between each purchaser and the common vendor, that each purchaser is to have the benefit of all the covenants by the other purchasers, so that each purchase [sic] is in equity an assign of the benefit of these covenants ’. He evidently preferred the latter alternative, for, as he explained, the implication of mutual contracts can hardly prevail unless the various sales are simultaneous. But he concluded as follows: ‘ It is, I think, enough to say, using Lord Macnaghten's words in Spicer v. Martin, that when the four points I have mentioned are established, the community of interest imports in equity the reciprocity of obligation which is in fact contemplated by each at the time of his own purchase ’.

^{page 363 note 43} E.g. Nottingham Patent Brick Co. v. Butler (1886) 16 Q. B. D. 1778, , C. A.784Google Scholar; Osborne v. Bradley [1903] 2 Ch. 446, 454Google Scholar; Elliston v. Reacher, supra, C. A. at p. 671; Reid v. Bickerstaff [1909] 2 Ch. 305, , C. A.319, 323, 324Google Scholar; Kelly v. Barrett [1924] 2 Ch. 379, 394, , C. A.398, 406, 409, 414Google Scholar; Torbay Hotel v. Jenkins [1927] 2 Ch. 225, 240Google Scholar.

^{page 363 note 44} See e.g. Torbay Hotel v. Jenkins, supra, at p. 240, where Clauson J. clearly indicated that equity is exercising (in contrast with its concurrent jurisdiction in ordinary cases of annexation) a purely exclusive jurisdiction.

^{page 364 note 45} Ante, § 2, 3rd rule as to annexation.

^{page 364 note 46} In Rogers v. Hosegood [1900] 2 Ch. 388, both Farwell, J. (at p. 397) and the Court of Appeal (at p. 408)Google Scholar treated the building scheme as a mere illustration of the general rule that a deed should be construed in the light of its surrounding circumstances. See also Kelly v. Barrett, supra, when the judgments of the Court of Appeal concentrated upon the effect of the documents so construed. Also Nottingham Patent Brick Co. v. Butler, supra, where Lord Esher M.R. (p. 784) said that the question whether the purchasers were intended to be bound inter se ‘must be determined by the same rules of evidence as every other question of intention’.

^{page 364 note 47} See the quotation (particularly the words italicized) from Parker J. given ante, note 37, p. 362, also Nottingham Patent Brick Co. v. Butler (1886) 16 Q. B. D. 778, 784Google Scholar, where Lord Esher M.R. stated, as though it is a characteristic peculiar to building schemes, that ‘ a Court of Equity will, in favour of any one of the purchasers, insist upon the performance of the covenants by any other of them, and will do so without introducing the vendor into the matter ’.

^{page 364 note 48} A strong illustration of the effect of surrounding circumstances in ordinary annexation is Drake v. Gray [1936] Ch. 451, , C. A.Google Scholar See also note 45, supra.

^{page 364 note 49} See ante, § 3.

^{page 364 note 50} Section 5; now L. P. A. 1925, s. 56. See, further, § 1, ante.

^{page 365 note 51} E.g. Forster v. Elvet Colliery [1908] 1 K. B. 629, , C. A.Google Scholar; ante, note 30, p. 344.

^{page 365 note 53} Even the existence of the scheme may be sufficiently proved by inference from surrounding facts, in the absence of direct evidence (from documents Or statements by the vendor) on the point: Kelly v. Barrett [1924] 2 Ch. 379, 899, per Pollock, M.R.Google Scholar

^{page 365 note 53} See note 41, p. 363, ante.

^{page 365 note 54} Parker, J. in Elliston v. Readier [1908] 2 Ch. 374, 385 (ante, note 42, p. 363)Google Scholar evidently preferred (2); see also various dicta, quoted in Re Birmingham Land Co. and Allday [1893] 1 Ch. 342Google Scholar, to the effect that the vendor exacts the covenant in order to raise the saleable value of other plots. Cozens-Hardy, M.R. in Reid v. Bickerstaff [1909] 2 Ch. 305, 319Google Scholar, perhaps supports (1): ‘ each purchaser became under an implied covenant or obligation to every other purchaser to conform to and obey the provisions of the scheme. ’ The judgments in Rogers v. Hosegood [1900] 2 Ch. 388Google Scholar, and in other cases (see note 43, p. 363, ante) appear to be equally consistent with either.

^{page 365 note 55} Indications that the original vendor is in some sense a trustee of the benefit of the covenant are (I) dicta suggesting that he cannot, unless the scheme reserves him the power, sell subsequent plots without imposing upon them the restrictions contemplated by the scheme (see Ridley v. Lee [1935] Ch. 591, 602Google Scholar; Elliston v. Reacher, supra, at pp. 389, 672)—but this probably rests merely on an implied term, enforceable by injunction, in his contract with previous purchasers (Mackenzie v. Childers (1890) 43 Ch. D. 265Google Scholar; Re Birmingham Land Co. and Allday, supra); (ii) the assumption that he can enforce the covenants, on behalf of the area as a whole, even after he has disposed of the whole of the land (this was apparently assumed in Kelly v. Barrett [1924] 2 Ch. 379Google Scholar; but plaintiffs failed to establish a building scheme; Tomlin J. in argument appeared to imply it, ibid, at p. 389); (iii) he can enforce the covenants without proving that any plots remaining in his hands can benefit from them, or at least the onus is on the defendant to prove the contrary, so long as they benefit the area as a whole (Northbourne v. Johnston [1922] 2 Ch. 309Google Scholar); (iv) a purchaser's covenant may be annexed, perhaps, even to other plots which he himself has bought or subsequently acquires (Elliston v. Reacher [1908] 2 Ch. 665, , C. A., 672, 673Google Scholar, shows that this does not vitiate the scheme as a whole; aliter, semble, if joint vendors sell plots to one of themselves—Ridley v. Lee, [1935] Ch. 591Google Scholar).

^{page 366 note 56} Osborne v. Bradley [1903] 2 Ch. 446, 460, per Parwell, J.Google Scholar