is such a change of circumstances that performance of the covenant ought not to be required. It was likened to the case of The Duke of Bedford v. the Trustees of the British Museum (3). I think Mr. Palmer, with the ability and sense with which he has conducted the whole of this business, did not press that strongly in his reply: and he was perfectly right in doing so, because there is a manifest and plain difference between the two cases. In the case of The Duke of Bedford v. the Trustees of the British Museum the party who was seeking against the other the performance of the covenant, had himself, by his own acts, placed the property under such different circumstances that it was perfectly manifest there was no reciprocity; the parties were not in any way in the same situation; but in the reply it went rather upon a different footing. different footing. There has been, not a difference with regard to the original argument, but a difference with regard to a particular point; it was said that a passage was made through the north side of Leicester Square, and consequently (although according to an act of parliament) that that of itself would vary the covenant. I am clearly of opinion that that could not be so. It is said that an act of parliament has been forced upon all these parties for a new street, not touching the property in question, but thereby making a great thoroughfare, having a tendency to alter the sort of persons who might like to inhabit that particular place. But that thoroughfare through the upper part of it does not alter it at all in this respect to persons residing in the square; it does not follow that they might not desire to have a pleasant garden in the middle of the square. I do not think it in the least alters that.

Then the reply turned upon the point of acquiescence. In 1808 this covenant was made. Looking at the particular meaning of that deed, I can only conjecture-I will not place any weight upon it, but I should have supposed that the purchaser of that piece of ground, under such a deed as this, had apprehended it was worth his while to pay the money he paid, hoping to get some revenue from it by means of the garden

(3) 2 Myl. & K. 552; s. c. 2 Law J. Rep. (N.S.) Chanc. 129.

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and the keys. Manifestly one thing is plain; if such were the case, his only hope to induce persons to get admission into the garden was to keep it in a neat and ornamental condition, so as to entice people to come out of their houses, and having gone to the expense of having keys, to pay for them. But it has been grossly neglected; it has become, what is called in the eloquent language of Chancery pleading in the answer, a disgrace and reproach to the neighbourhood, and that boys broke in," and I do not know what they did there. This has been done with the permission of those who have been the owners of the place, and who had power over it, and not with the permission of Mr. Moxhay, as he only became owner (although he had a right of contract previously) in the month of August last. However, for a long series of years from the description I have received, it has been in such a condition that nobody would give a farthing to go into it, and they would be very anxious to avail themselves of the right to stop out of it. This being the condition of the place, the argument is, that the inhabitants of the square have never come and offered to pay their money; they have never asked the defendant or anybody else to keep it in order. I cannot say that that seems to me to be a reason why this injunction should be refused. That is the argument here, that there has been such an acquiescence, that the Court, even if it saw right to interfere on other grounds, ought not to interfere upon this ground. I think that I cannot act upon that. I do not think the grounds stated are grounds why the Court should not exercise the jurisdiction, if it has jurisdiction, which I must, in the present state of authority, conceive the Court has.

Then it is said that this form of injunction is erroneous; and I very much incline to think it does require variation, and I have considerable difficulty about it. I do not mean to conceal that there is a difficulty as to what, upon a fair construction of this covenant, is this gentleman's right to deal with this property. I am only considering now that this argument is correct, and not advancing any authority or more than is necessary for me to do. It is said that he is bound to keep it open

and uncovered, and to have it in a neat and ornamental state, which he confesses he has not done. He insists that he has no occasion to do it unless he pleases. I think he is under some terms, which will shew that he cannot leave it in that foul and disgraceful state which he maintains he has a right to do if he thinks fit. I do not think that he will find that can be maintained. He must do something now to prevent it. What he has done, as I understand, has been this, that instead of keeping this as a neat and ornamental garden, for which he is to give keys to the inhabitants, they paying a certain sum, he has up to this moment not done anything. It may not be inconsistent with that, but he says, "All I am doing is making two walks to go across the square, and I shall have gates which are to be at each entrance, and I am not doing anything else;" unless I understand him to say, that he is going to have fences six feet high on each side of this walk, which I think he does say. Now, I believe myself, if he has such walks as those two across this square, he can hardly make a greater nuisance of the place than it is now. Consider what they will be at night. But whether he intends to do anything more he will not say. He says, "I have a right to use this as my own, I have the right which has been exercised for many years before 1839, to keep this in so foul and disgraceful a state. I do not mean to do that, but I do mean to say, that I have a right, if I think fit, to remove that statue, which is an ornament there, and I have a right to build as high as I please, if I think fit to do so;" and he insists upon that right at the time when he is doing something which I do not mean now to say is clearly and beyond all doubt a violation of the contract, but which, if it is maintained, will, I think, as has been said on the other side, be certainly a step towards doing something which may be a much more serious violation of the covenant than this.

Now, I think that in the state of the claim which the defendant makes to do what he pleases, after this matter has been brought into question under the circumstances, which I do not think immaterial, that several years ago he was about to do something else, and that upon that occa

sion he entered into some treaty with the plaintiff in this case, shewing what he thought about doing at that time, something ought to be done by this Court; although I should be most anxious not to do, in the least degree, more than seems to me to be perfectly warranted by the covenant which was entered into by Mr. Elms, of which this gentleman had full notice. How far to go with that injunction, or whether to go any further than say he shall not build there, that he shall keep it open and uncovered, is what I certainly feel some doubt about. I think that portion of the injunction which relates to the trees ought to be discharged.

As to the rest, I think that I might not unsafely continue it. But I should really wish, if counsel desire that I should do what is right on both sides, that they would give me some assistance, my anxiety being to do that which should protect these parties until the question should be finally settled between them, and not to impose any more restraint upon Mr. Moxhay than is necessary for that particular purpose. I do not go the whole length asked by the plaintiff as to the neat and ornamental order, but I must restrain the defendant from converting or using the square garden, or removing the iron railings in such a manner as is inconsistent with the use of it as an open garden and pleasure ground.

Dec. 21, 22.-The defendant moved before the Lord Chancellor, by way of appeal, that the order of the Master of the Rolls might be discharged.

Mr. R. Palmer, in support of the motion. Mr. Rolt and Mr. Shebbeare, contrà, were not called upon.

The LORD CHANCELLOR. I have no doubt whatever upon the subject; in short, I cannot have a doubt upon it, without impeaching what I have considered as the settled rule of this Court ever since I have known it. That this Court has authority to enforce a contract, which the owner of one piece of land may have entered into with his neighbour, founded, of course, upon good consideration, and valuable consideration, that he will either use or abstain from using his land in any manner

that the other party by the contract stipulates shall be followed by the party who enters into the covenant, appears to me the very foundation of the whole of this jurisdiction. It has never, that I know of, been disputed. In the case in the House of Lords of Heriot's Hospital, in Scotland (4), there was raised this question, and this question only: whether a plan exhibited at the time the conveyance was taken could be considered as part of the contract. There had been some authorities treating it as part of the contract: the Court of Session had so considered it, not upon principles confined to the law of Scotland at all, but upon principles applicable to the law of both countries. When it came to the House of Lords, that was the only matter which Lord Eldon and Lord Redesdale had to consider. It never entered into the contemplation of either of those noble Lords (as far as I recollect, at least from the report of that case,) that there was any question as to the jurisdiction of a court of equity (equity being administered by the Court of Session in Scotland), or that the party might so bind himself. And there is not now any question raised as to that; only it is contended that this Court will not enforce the covenant.

It is not disputed that a party selling land may, by some means or other, provide that the party to whom he sells it shall conform to certain rules, which the party selling may think proper to lay down as between themselves. They may so contract as to bind the party purchasing to deal with the land according to the stipulation between the parties. Now, here there is no question about the contract, because here the purchaser of the area of Leicester Fields takes it subject to the following stipulation:-[His Lordship then read the covenant].

Here, then, upon the face of the instrument, not left in any doubt, or with any evidence to be supplied dehors the instrument, the owner of the houses erected disposes and sells land adjoining to those houses with an express covenant on the part of the purchaser, his heirs and assigns,

(4) The Feoffees of Heriot's Hospital v. Gibson, 2 Dow, 301.

that there shall be no buildings erected upon that space. It is now contended, not that Elms, the vendee, could violate that contract-not that he could build immediately after he covenanted not to build, or that this Court could have any difficulty, if he had made that attempt, in preventing him from building-but that he might sell that piece of land as if it were not incumbered with that covenant, and that the person to whom he sold it might at once, without the risk of the interference of this Court, violate the covenant of the party from whom he purchased himself.

Now, I do not apprehend that the jurisdiction of this Court is fettered by the question, whether the covenant runs with the land or not. The question is, whether a party taking property, the vendor having stipulated in a manner binding by the law and principles of this Court to use it in a particular way, will be permitted by this Court to use it in a way diametrically opposite to that which the party has covenanted for. If that be so, what has become, not only of all those cases before the Vice Chancellor, which have been now referred to, and in which he has considered it as a matter not in dispute, but of the case of the British Museum, before Lord Eldon? He did not enter into that question, and it does not seem to have been contended before him or before Sir John Leach by those who argued it, although Sir John Leach took that view of it. And so far as

the arguments before Lord Eldon, which have been very shortly reported, go, we do not know exactly what passed. But looking at the ground Lord Eldon took, particularly in the case of Heriot's Hospital, it must have occurred to his mind that if such a covenant was found to exist-if such had appeared to be the agreement between the parties, this Court would interpose and protect the party selling against the violation of the covenant into which he had entered. Of course, the party purchasing the property under such restriction, gives less for it than he would have given if he had bought it unincumbered. Therefore, can there be anything much more inequitable or contrary to good conscience, than that a party who takes property at a less price because it is subject to a restriction, should receive the whole value from a third

party, and that such third party should then hold it unfettered by the restriction under which it was granted? That would be most inequitable, most unjust, and most unconscientious; and as far as I am informed, this Court never would sanction any such course of proceeding; but, on the contrary, has always acted upon this, that you, who have the property, are bound by the principles and law of this Court to submit to the contract you have entered into; and you will not be permitted to hand over that property, and give to your assignee or your vendee a higher title, with regard to interest as between yourself and the vendor, than you yourself pos

sess.

That is unconnected with the equitable doctrine of a covenant running with the land. If the Court finds in the instrument itself, not in the shape of a covenant or recital, anything which shews the Court what was the understanding between the parties, the case becomes free from all those difficulties which exist where contracts are attempted to be inferred from the exhibition of a plan. Then you have it upon the face of the instrument itself; nay, a plan attached to the instrument is part of the instrument, and is evidence.

All which the decisions have settled, is this, that you cannot go out of the instrument and by evidence dehors the instrument, raise a new case by the exhibition of a plan not attached to, and therefore not forming part of the instrument. If there be a plan attached to the instrument, that plan may be considered as evidence of the contract entered into between the parties. There is no question about the legal liability, which is best proved by this: that if there be a merely legal agreement, and no covenant-no question about the covenant running with the land-but the party who takes the land takes it subject to the equity which the owner of the property has created-if he takes it, subject to that equity created by the party through whom he has derived title to it; is it not the rule of this Court, that the party who has taken the property with knowledge of the equity, is liable to the equity? Is not this an equity attached to the property, by the party who is competent to bind the property? If a party enters into an agreeNEW SERIES, XVIII.-CHANC.

ment for a lease and then sells the property, the party buying the property with knowledge of that agreement cannot set up his title against the party claiming the benefit of that contract; because if there had been an equity attaching to the property in the owner, the owner is not permitted to give a better title to the purchaser with notice, than he himself possessed. The other party is entitled to the benefit of the contract, and to have it exercised and carried into effect against the person who is in possession, unless that party can shew he purchased it without notice. Here there

is a clear, distinct and admitted equity in the vendor, as against Mr. Elms; and as to the party now sought to be affected by it, it is not in dispute that he took the land with notice of the covenant: indeed, it appears on the face of the instrument which is the foundation of the title. It seems to me to be the simplest case that a court of equity ever acted upon, that a party cannot have a better title than the party under whom he claims.

Without adverting to any question about a covenant running with land or not, I consider this piece of land is purchased subject to an equity created by a party competent to create it: and the present defendant took it with distinct knowledge of such equity existing; and such equity ought to be enforced against him as it would be against the party who originally took the land from Mr. Tulk. I say nothing of the doctrine supposed to be laid down by Lord Brougham, because I have not had an opportunity of examining exactly how it stands; therefore, I may not very distinctly understand it.

Un

doubtedly, it cannot be supposed that Lord Brougham intended to lay this down, that this Court would not consider any equity attaching to land, and such as this Court would enforce, except in cases in which it might be enforced at law. It is clear that could not be the intention of Lord Brougham, however the opinion he expressed may appear; and I say nothing about that, nor do I give any opinion about it, I could not venture to do so without critically examining the expressions attributed to him. If there be any such, I can only say I do not coincide with that doctrine. I consider the rule of law is not

N

at all the measure of the administration of equity. In short, it would be obvious, if it were so, that there could be no contract interfering with the fee simple, or the management of it. If a man has, in law, a fee simple, cannot he in equity contract with that in a way which may be beneficial or not be injurious to his neighbour? I cannot understand how that doctrine can exist, co-extensively with the jurisdiction. which the Court is in the habit continually of exercising.

I think, therefore, that the Master of the Rolls is quite right.

In that case of Mann v. Stephens I do not know whether that point was raised in all probability it was not. I did not advert to it according to any report that I have; but it is directly in point, not only so far as my decision went, but on the case as argued before the Vice Chancellor, and decided by the Vice Chancellor, and affirmed on the only point at all affecting the present question by me, namely, that these parties -neither of them being parties to the covenant, but both having derivative titles, one under the vendor and one under the vendee—had given effect to the contract between the vendor and vendee to bind those who claim under them. The party had obtained possession of the land from the covenantor, with knowledge of the contract he had entered into. That case could not stand with this case if the order of the Master of the Rolls was wrong. My opinion is they are both right, and that this motion must be refused, with costs.

Legacy-Direction to settle.

A testator gave to his daughter the sum of 15,000l., to be kept in trust by his executors till she should attain the age of twenty-one, or marry with consent, whichever might first happen, when this sum was to be settled on his said daughter; but failing her attaining twenty-one, or having issue by such marriage, then the money to devolve upon others. The daughter attained the age of twenty-one, without having been married-Held, that she was entitled to

the legacy absolutely, without any settlement being made.

This was the petition of Sophia Mary Arnold, a legatee under the will of her father, and it stated that George Arnold, a Lieut.-Colonel in the East India Company's service, by his will, dated the 18th of September 1828, gave and bequeathed to his dear child, Sophia Mary Arnold, the petitioner, the sum of 15,000l. stock, to be kept in trust by his executors till she should attain the age of twenty-one years, or marry with the consent of her mother and the half of his executors then living, whichever might happen first, when this sum, with the accumulated interest, was to be settled on the said Sophia Mary Arnold, but failing her attaining the age of twentyone years, or having issue by such marriage, then the sum was to devolve upon persons therein mentioned. The petitioner was an infant at the death of the testator, but had since attained the age of twentyone, without having been married. bill was filed for the administration of the estate of the testator; the petitioner prayed that her share might be transferred into her name by the executors. The only question raised was, whether the petitioner was entitled to the legacy absolutely, or whether it was to be settled upon her.

The

Mr. Bethell and Mr. Piggott, for the petitioner, contended that the words "to be settled" in the testator's will were too vague to be given effect to by the Court; had the legacy been directed to be settled on her and her children, it would have been different. They cited

Young v. Macintosh, 13 Sim. 445.
Laing v. Laing, 10 Ibid. 315; s. c. 9
Law J. Rep. (N.s.) Chanc. 48.

Mr. Joshua Williams appeared for other parties.

The VICE CHANCELLOR. -It is plain that the testator had only a confused notion of what he intended. There is no direction to settle, except in the event of such a marriage as such a marriage as that contemplated, namely, a marriage before twenty-one with the consent of the mother and half of the executors; the testator goes on to say, "failing her attaining the age of twenty