Case Summary
| Citation | Tulk v. Moxhay(1843-60) All ER Rep. 9 |
| Keywords | sec 10, 11 tpa, conditions |
| Facts | The claimant, Tulk, owned several properties in Leicester Square, London, and sold one such property to another, making the purchaser promise to not build on the property so as to help keep Leicester Square ‘uncovered with buildings’ and creating an equitable covenant. The purchaser subsequently sold the land and it underwent multiple transactions, and was eventually purchased by the defendant, Moxhay. Whilst Moxhay was aware of the covenant attached to the land at the time of the transaction, he claimed it was unenforceable as he had not been a party to the original transaction in which the covenant had been made. |
| Issues | Whether the covenant that does not run with the land can be enforced? Whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his seller with notice of which he purchased? |
| Contentions | |
| Law Points | For the beneficial enjoyment of his own immovable property, a third person has the right independently of any interest in the immovable property of another to direct the enjoyment in a particular manner of the latter’s property, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby. But not against a transferee for consideration and without notice of the right or obligation nor against such property in his hands. In equity, a negative covenant or agreement restricting the user of the land as aforesaid, attaches itself to the land and runs with it. It is binding on the purchaser who has notice of the covenant. Such covenant should be negative and this rule does not apply in case of positive or affirmative covenant. The transferor may impose conditions restraining the enjoyment of land if such restrictions are for the benefit of adjoining land of the transferor. The court noted that the price would be affected by the covenant but then nothing would be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken. |
| Judgement | The court held that no one purchasing with notice of an equity can stand in a different situation from that of the party from whom he purchased; and therefore X, who was aware of the conditions in the contract, irrespective of their character, was bound by it. |
| Ratio Decidendi & Case Authority |
Full Case Details
In 1808 the plaintiff, being then the owner in fee of a vacant piece of ground in Leicester
Square, London, as well as of several of the houses forming the square, sold the piece of ground
by the description of
‘‘Leicester Square Garden or Pleasure Ground, with the equestrian statue then standing in
the centre thereof and the iron railing and stone work round the same,’’
to one Elms in fee. The deed of conveyance contained a covenant by Elms, for himself, his heirs,
and assigns, with the plaintiff, his heirs, executors, and administrators.
‘‘that Elms, his heirs, and assigns should, and would from time to time, and at all times
thereafter at his and their own costs and charges, keep and maintain the said piece of ground
and square garden and the iron railing round the same in its then form, and in sufficient and
proper repair as a square garden and pleasure ground, in an open state, uncovered with any
buildings, in neat and ornamental order; and that it should be lawful for the inhabitants of
Leicester Square, tenants of the plaintiff, on payment of a reasonable rent for the same, to
have keys at their own expense and the privilege of admission therewith at any time or times
into the said square garden and pleasure ground.’’
The piece of land so conveyed passed by divers mesne conveyances into the hands of the
defendant, whose purchase deed contained no similar covenant with his vendor, but he admitted
that he had purchased with notice of the covenant in the deed of 1808. The defendant having
manifested an intention to alter the character of the square garden, and asserted a right, if he
thought fit, to build upon it, the plaintiff, who remained owner of several houses in the square,
filed this bill for an injunction. An injunction was granted by the Master of the Rolls, to restrain
the defendant from converting or using the piece of ground and square garden and the iron railing
round the same to or for any other purpose than as a square garden and pleasure ground in an open
state, and uncovered with buildings. The defendant moved to discharge that order.
LORD COTTENHAM, L.C. – That this court has jurisdiction to enforce a contract between the
owner of land and his neighbour purchasing a part of it that the purchaser shall either use or abstain
from using the land purchase in a particular way is what I never knew disputed. Here there is no
question about the contract. The owner of certain houses in the square sells the land adjoining, with a
covenant from the purchaser not to use it for any other purpose than as a square garden. It is now
contended, not that the vendee could violate that contract, but that he might sell the piece of land, and
that the purchaser from him may violate it without this court having any power to interfere. If that
were so, it would be impossible for an owner of land to sell part of it without incurring the risk of
rendering what he retains worthless. It is said that, the covenant being one which does not run with the
land, this court cannot enforce it, but the question is not whether the covenant runs with the land, but
whether a party shall be permitted to use the land in a manner inconsistent with the contract entered
into by his vendor, with notice of which he purchased. Of course, the price would be affected by the
covenant, and nothing could be more inequitable than that the original purchaser should be able to sell
the property the next day for a greater price, in consideration of the assignee being allowed to escape
from the liability which he had himself undertaken. That the question does not depend upon whether
the covenant runs with the land is evident from this, that, if there was a mere agreement and no
covenant, this court would enforce it against a party purchasing with notice of it, for if an equity is
101
attached to property by the owner, no one purchasing with notice of that equity can stand in a
different situation from that of the party from whom he purchased. There are not only cases before the
Vice-Chancellor of England, in which he considered that doctrine as not in dispute, but looking at the
ground on which LORD ELDON disposed of Duke of Bedford v. British Museum Trustees [60 ER
1055], it is impossible to suppose that he entertained any doubt of it. In Mann v. Stephens [60 ER
665] before me, I never intended to make the injunction depend upon the result of the action, nor does
the order imply it. The motion was, to discharge an order for the commitment of the defendant for an
alleged breach of the injunction, and also to dissolve the injunction. I upheld the injunction, but
discharged the order of commitment on the ground that it was not clearly proved that any breach had
been committed, but, there being a doubt whether part of the premises on which the defendant was
proceeding to build, was locally situated within what was called the Dell, on which alone he had
under the covenant a right to build, and the plaintiff insisting that it was not, I thought the pendency of
the suit ought not to prejudice the plaintiff in his right to bring an action if he thought he had such
right, and, therefore, I gave him liberty to do so.
With respect to the observations of Lord Brougham in Keppell v. Bailey [39 ER 1042], he never
could have meant to lay down, that this court would not enforce an equity attached to land by the
owner unless under such circumstances as would maintain an action at law. If that be the result of his
observations, I can only say that I cannot coincide with it. I think this decision of the Master of the
Rolls perfectly right, and, therefore, that this motion must be refused with costs.
