As to the costs. The original bill must be dismissed with costs, because the vendors, apprised of the objection, instituted an improper suit. As to the second suit. The vendors took no steps to amend the original bill, and to frame it properly to obviate the objection to the title. Mr. Todd had therefore no means of obtaining a specific performance of the agreement, but by the institution of the second suit; the vendors resisted and failed; Mr. Todd succeeded, and a specific performance was decreed. There was no inconsistency on the part of Mr. Todd. The will of Mr. Burton rendered it necessary that the accounts should be taken. All the parties to the second suit were interested in the accounts. The vendors must be at the expense of clearing the title, by taking the accounts; and, therefore, Mr. Todd is entitled also to the costs of the second suit.

No. XX

Duke of Bedford v. Trustees of the British Museum.

Mr. Shadwell thus stated the case to the Lord Chancellor.-The nature of the case is this; I can state it very shortly: Lady Rachael Vaughan, prior to her marriage with Lord William Russell, was seised in fee of the land on which the Museum now stands, which was parcel of another portion of land called Longfield and Babersfield; and she made a conveyance, by which she vested the legal estate of the whole of those lands in trustees, and also the legal estate of Southampton House, which was her own inheritance, in trust for her. She then married Lord William Russell, and by a deed dated 1675, to which she was a party as well as Lord William Russell and the trustees of the legal estate were parties, she and Lord William Russell and the trustees together were empowered by the deed to grant and convey the ground on which the Museum stood. By that conveyance to Ralph Montagu, Ralph Montagu covenanted, among other things in a general way, that he would not erect buildings on the ground which was conveyed to him, to the northward of the line of Southampton House. The covenant he made was a covenant not with the trustees in whom the legal estate was, but it was with Lady Rachael Vaughan and her heirs and assigns. That is the general nature of the case. After that Lord William Russell died, and the legal estate in the remainder of the land which had not been conveyed to Ralph Montagu, was re-conveyed by Lady Rachael Vaughan, and then by assignments and descents the legal estate of the land in the adjacent land, the Museum garden, has descended and become vested in the present Duke of Bedford. By the deed, which was a conveyance to Ralph Montagu, *a rent was reserved of 51. annually, which has been paid by the present Duke of Bedford; and besides that, there was also a reservation of a rent of 31. per day, in case any buildings should be erected in contravention of the covenant;

(n) Vide supra, p. 734.

and that rental of 31. a day is secured by a power of entry and dis

tress.

The question now arises whether, inasmuch as Southampton House has been pulled down and demolished, but on the site of it and on the land adjacent to the Museum gardens, houses have been built by the Duke of Bedford and his tenants, whether or not he has a right in equity to restrain the trustees of the British Museum from making buildings in the Museum gardens, contrary to the letter of the covenant which was made by Ralph Montagu with Lady Rachael Vaughan? That is the general nature of the case. When the case was heard before the Vice-Chancellor, this difficulty occurred in his Honor's mind: he thought that the covenant was not a covenant which ran along with the land; that is, that inasmuch as the rent of 51., which was the annual rent, was only reserved out of the land granted to Ralph Montagu; and inasmuch as the rent of 31. per day in the event of buildings being made, was only reserved out of the land granted to Ralph Montagu, that it could not be said that the covenant not to build on the land granted to Ralph Montagu, was a covenant that ran with the land which was not granted to Ralph Montagu; and therefore his Honor thought, that inasmuch as the covenant could not at all be said to run with the land, so that no action at law could be sustainable,― he thought that a court of equity could not interfere to give the parties a more beneficial remedy and a more beneficial right than had been reserved to themselves by the form of the conveyance.

The Vice-Chancellor gave the following judgment:-This is an application to me on the part of the Duke of Bedford to grant an injunction to restrain the trustees of the British Museum from building on the land which they hold in that character to the northward of the ancient line of Southampton House: and the foundation of the application rests upon the grant which was made by the trustees of Lady Rachael Russell, and by her appointment to Mr. Ralph Montagu, who originally built Montagu House; and it is then said, that Ralph Montagu is to be taken to have covenanted with Lady Rachael Russell, her heirs and assigns, that he never would build to the northward of that particular line. Then that the trustees are about to infringe that covenant, and that this Court will interfere to restrain that infringement. The policy of the law of England does not allow that the owner of land, when he thinks fit to part with it, is to impose any captious restraint upon the lawful enjoyment of the land; and those who seek to enforce a covenant which affects to restrain a particular lawful use and enjoyment of land, must, according to the acknowledged principle of the law of England, show that they have some interest in that restraint, and that it is not for a captious or arbitrary purpose.

The covenant is in terms made with Lady Rachael Russell and her heirs and assigns simply. In terms, therefore, it is a mere personal covenant. It is a covenant with Lady Rachael Russell and those who in all times after her should become entitled to receive the rent of 51. a year, which is one of the conditions of the grant in fee: and looking at the covenant according to those terms, the question would be, is the interest of the Duke of Bedford, as the heir or assign of Lady Rachael Russell in that 51. a year, to be materially affected by the erection of these intended buildings to the northward of the line of Southampton

*House? The question is, if the Duke of Bedford, as the heir or assign, was treating simply in that character, could he establish in a court of justice that his interest in this perpetual rent of 51. a year will be injured by the buildings now sought to be erected? because if he is entitled to an action at law for damages, he is necessarily entitled to the injunction of this Court to restrain that breach of covenant. It is not, however, contended in argument, that it is possible for the Duke of Bedford and for his counsel here to represent that his interest in this 51. a year will be in any manner lessened by the buildings now sought to be erected, but on the contrary, it is perfectly plain that the erection of additional buildings would give an additional security, as it would give more value to the land, and of course not diminish the legal interest of the Duke of Bedford in that rent; and if it rested there, it certainly would not be contended here that it would be possible to call for the interference of this Court by way of injunction.

It is, however, said, that according to the true effect of this instrument, it is plain that the agreement of these parties with respect to these covenants was made not for the purpose of affording additional security for the rent of 51. a year, but for the purpose of preventing such a use of this land, as should tend to diminish either the valuable or pleasurable enjoyment of the land adjoining-the valuable and pleasurable enjoyment of the land upon which Southampton House was built, and that the law will permit those restraints; so that I who am possessed of a particular property of which I have the personal enjoyment, that I have a right so to deal with land which belonged to me, and which is contiguous to mine; that I have a right so to deal with it, if I think fit to alienate it, as to restrain any use which may tend either to diminish the pleasure or the profit of the land which I retain. The question, therefore, is, whether upon the whole of this deed it does appear that these covenants have been so framed as to afford evidence of an agreement that Mr. Ralph Montagu entered into with Lady Rachael Russell and those who represented her, as being the owners of Southampton House and the land adjoining, that he would never use this land but in the manner prescribed, either to the prejudice of the profit or pleasure of Southampton House? If this deed does afford evidence of such an intention to the parties to the instrument, there is a clear remedy at law against the act which is now sought to be enforced, and, as I before observed, a clear remedy in a court of equity by way of injunction to restrain the commission of

that act.

The consideration, therefore, is, as I first suggested to the bar, as to what would ultimately appear to be the real question between the parties, whether this deed does or does not afford evidence of an agreement not between Lady Rachael Russell and Mr. Montagu personally, but between Mr. Montagu and those who claim under him the subject of the grant, and between Lady Rachael Russell and those who claim under her Southampton House and the site of that house. It did appear to me the first moment the case was opened, that such ultimately must be the question in this case. It has been argued with all the ability and ingenuity which the bar could afford-after all the research that the authority of the Court could afford, but I confess the principle remains untouched in my mind. If this deed does afford evidence

at law that such was the agreement of these parties, than this Court will follow the law, and will act upon the same agreement, and will interfere to prevent the commission of the act. But if a court of law declares that this deed affords no evidence of such an agreement, I cannot admit the principle that a court of equity can read this instrument to have a different effect than a court of law. A court of equity cannot say, that although a court of law has declared that the instrument affords no evidence of an agreement, that it will, upon the facts stated, collect that the intention of the parties was to that effect, or act upon the facts thus specified. My opinion is, that a court of equity, in the construction of an agreement, must follow the law; and if at law the construction is the same as in equity, its powers will be given for a different purpose, namely, for the purpose of restraining injury, and not of giving damages. I must, therefore, according to my view of the case, send the question to a court of law to determine what the intention of the parties really was; but I will relieve the parties from any disability of obstruction they may receive in a court of law in respect of the form of this covenant; and whatever the parties may feel will facilitate the real decision of the question at law, I will take care to afford them. I will take care that they shall have every facility to enable a court of law to decide the actual question that is meant to be submitted.

Lord Eldon ultimately decided, that under the circumstances, the acts of the parties, the alteration of the property, &c., the right to relief in equity was at an end.

No. XXI.

Rea v. Williams, Exch. (o).

The plaintiff Rea and one Pritchard purchased jointly a lease made by the Duke of Beaufort for the life of another person, and they jointly took the profits of it for some time; but afterwards they conveyed the estate to the defendant Williams, in consideration of 3001., as was expressed in the conveyance, though no part of the money was ever paid, and Williams acknowledged by his answer, that he was a mere trustee for the parties; but no declaration of trust was ever executed, nor did it any way appear with what view the estate was vested in the defendant, any further than it was believed it was done to screen it from execution, they being both of them much indebted. Afterwards Pritchard died intestate, and the defendant Williams took out administration to him, but there was not assets enough to pay all his debts. This cause came on to a hearing on the bill and answer, and the question was, whether the trusts of the estate belonged to Rea the survivor, as the whole estate indisputably would, if the legal estate had continued in the two purchasers? To prove the trust would survive, were cited, 1 Vern. 217; Eq. Cas. Abr. 291; 2 Vern. 556, 683.

(0) Vide supra, p. 902.

Mr. Wilbraham, to show this trust did not survive, took a distinction between 2 Vern. 556, and the present case; for there, he said, was an express limitation of the trust to the two daughters, so they might take jointly; but this is a resulting trust only, and no express limitation; and equity, which discourages joint tenancies, may construe that to be a tenancy in common; Salk. 158. If a joint tenant for years mortgages his part of the term, this a severance of the joint tenancy, 2 Vern. 683.

Reynolds, Chief Baron.-I think the joint tenancy of the trust in this case was not severed: every one who has an estate has two rights in him, a legal estate and an equitable interest; nothing passed by the conveyance to the defendant but the legal estate, and the equitable interest resided in the two purchasers, and remined as it originally was, the consequence of which is, that it must go to the plaintiff by survivorship. Carter, Thompson and Fortescue were of the same opinion; and Fortescue said, he saw no difference between an express and an implied trust.

No. XXII.

Lechmere v. Lechmere (p), Ch. E. T. Geo. II.

This case was elaborately argued upon the appeal. The argument lasted four days. Upon the first question Lord Talbot delivered his opinion at considerable length. Upon the second question he pronounced the following judgment:

A

The second question is as to the satisfaction, whether what descended to the heir at law is to be considered as a satisfaction of what he is entitled to under this covenant. As to questions of satisfactions where they are properly so, they have always been between debtor and creditor or their representatives. As to Mr. Lechmere I do not consider him as a creditor, but as standing in the place of his ancestor, and thereby entitled to what would have vested in his ancestor. constructive satisfaction depends on the intention of the party, to be collected from circumstances. But then the thing given must be of the same kind, and of the same or a greater value. The reason is plain, for a man may be bountiful as well as just; and if the sum given be less than the debt, it cannot be intended as a satisfaction, but may be considered as a bounty; and if the thing given is of a different nature, then, also, as the intention of the party is not plain, it must be considered as a bounty. But I do not think the question of satisfaction properly falls within this case, for here it turns on what was the intention of my Lord Lechmere in the purchases made after the articles, for as to all the estates purchased precedent to the articles, there is no color to say, they can be intended in performance of the articles; and as to the leasehold for life, and the reversion in fee expectant on the estates for life, it cannot be taken they were purchased in pursuance of the

(p) Vide supra, p. 921.