Reports of CASES ADJUDGED in the HIGH COURT OF CHANCERY before Sir WILLIAM PAGE WOOD, Knt., Vice-Chancellor. By EDWARD E. KAY, of Lincoln's Inn, Esqr., Barrister-at-Law. 1853 to 1854-16 to 17 Vict. 1854.

[1] PATCHING v. DUBBINS. Nov. 3, 4, 1853.

[S. C. affirmed, 23 L. J. Ch. 45. See M'Lean v. M'Kay, 1873, L. R. 5 P. C. 336.]

Covenant. Construction. Acquiescence. Costs.

The purchase-deed of a house in a terrace contained a covenant on the part of the vendor, unexplained by any recital, that no building should be erected on any part of the land of the vendor lying on the east side of the said terrace and opposite to the plot of land thereby conveyed. The owners of the other houses had also similar covenants. Held, that the latter words were not merely descriptive of the position of the land, but restricted the general meaning of the former words; and that the covenant applied only to that part of the land which lay immediately opposite, and was of the width of the plot conveyed.

The general rule that the construction must be taken most strongly against the grantor, modified by the necessity of giving effect to every word of the instrument, if it can reasonably be done.

According to Tulk v. Moxhay (2 Ph. 774), if parties purchase land with notice of a covenant concerning it, but which does not run with the land so as to bind them at law, equity will not permit them to do anything contrary to the true meaning of that covenant.

Delay in taking legal proceedings and other acts not amounting to acquiescence in the infringement of a right.

To deprive a Plaintiff of a legal right at the hearing of the cause a case of acquiescence must be shewn much stronger than such as would be a sufficient defence to an interlocutory application by him, and must amount not only to positive license, but to an implication of an actual grant.

A Plaintiff litigating a question depending upon the construction of a doubtful instrument, not being a will, if the construction be decided against him, must pay the costs of the suit.

By an indenture, bearing date the 18th of August 1830, and made between James Edwards, of the first part, Richard Patching, the father, of the second part, and William John Faithfull, of the third part, in consideration of the sum of one hundred and twenty-four pounds, three shillings, the said James Edwards conveyed to the said Richard Patching, the father, his heirs and assigns, a certain piece of land at Brighton, called Windsor Terrace, situate on the west side [2] of a road then intended and since made, together with the messuage or tenement and other buildings then standing on the said piece of land, and numbered 7 in Windsor Terrace aforesaid, to hold the same unto the said Richard Patching, the father, and his assigns for his V.-C. XIV.-1

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life, with remainder to the use of the said William John Faithfull, and his executors and administrators, during the life of the said Richard Patching, the father, in trust for the said Richard Patching, the father, and his assigns, with remainder to the use of the heirs and assigns of the said Richard Patching, the father, for ever. And in the said indenture the said James Edwards did, for himself, his heirs, executors and administrators, covenant, promise and agree with and to the said Richard Patching, the father, his heirs and assigns, that no building whatever, except monuments and tombs, should at any time be erected on any part of the land belonging to the said James Edwards, lying on the east side of the said terrace, and opposite to the plot of land thereby conveyed.

There were no recitals in this indenture.

Richard Patching, the father, died in the year 1850, having, by his will, devised the land so conveyed to him to his two sons, Richard and John Patching, in fee. In 1851 Richard Patching, the son, released his interest therein to his brother, John Patching, absolutely.

The piece of land so conveyed to the said Richard Patching, the father, was the last at the northern end of several building lots then set out by the said James Edwards, and then or since built upon, and forming with the buildings thereon a terrace or row of seven houses, called Windsor Terrace, and numbered, from south to north, 1 to 7. This terrace overlooked the land described in the indenture as "belonging to the said James Edwards, lying on the east side of the terrace." James Edwards [3] had conveyed the other houses in the terrace to different parties, with whom he had covenanted in the same terms. The land of James Edwards opposite to the terrace was separated from it by a road, and extended in front of the whole of the terrace, and also for a considerable distance beyond it towards the north.

This land was used as a burying-ground, with the exception of a strip about forty-two feet wide, lying by the side of the road, which commenced opposite No. 6 Windsor Terrace, and extended past No. 7 to the northern extremity of the burialground.

This strip of land was used as the garden to a house belonging to and formerly occupied by James Edwards, which was situated on the same side of the road as No. 7, and a few yards to the north of it. This house would have been the centre house in Windsor Terrace if the terrace had been completed according to the original plan; and it was at first intended to convert the whole of the land opposite into a burial-ground, as appeared by a drawing which was made an exhibit in the cause. The burying-ground was annexed to a Dissenting chapel, which stood in the northwestern corner of it. James Edwards was the officiating minister at this chapel.

In 1849 James Edwards sold part of the northern end of the garden land at a considerable distance from Windsor Terrace to the trustees of the Brighton Dispensary, who had since erected a dispensary thereon.

In March 1852 William Verrall was in treaty with James Edwards for the purchase of a portion of the same strip of garden land, including all that part of it which lay directly opposite to No. 7 Windsor Terrace, for the purpose of building a hall thereon for a society called the "Odd Fellows." Having heard, however, from the Plaintiff of [4] the existence of the covenant not to build opposite his house, William Verrall declined to complete such purchase, but agreed instead to purchase from James Edwards another piece of the same garden land, no part of which was immediately opposite to No. 7, but which was situated directly opposite to the house and land adjoining No. 7 on the north side. In May 1852, previously to the completion of this agreement, the Defendants' solicitor was informed by the Plaintiff's solicitor of the terms of the covenant. The piece of land was afterwards conveyed to the Defendants in fee as trustees for the Odd Fellows Society. Excavations for the purpose of building were commenced upon the land so purchased on the 1st of June 1853. On the 20th of the same month the laying of the first stone was publicly announced, and the stone was laid with public ceremony on the 27th. The building was then continued, with some interruption in July, until August 30th, when it had reached the height of fifteen feet.

The Plaintiff averred that he did not know of the Defendants' purchase until the preparations for building were commenced upon the land. He then instructed

his solicitor to obtain the opinion of counsel as to the construction of the covenant in the deed of 1830; and on the 28th of June 1853 a case upon this question was laid before counsel accordingly. On the 1st of August 1853 the Plaintiff's solicitor wrote to the solicitor of the Defendants to inform him that an injunction would be applied for if the building were continued. On the next day the Defendants' solicitor requested a copy of the covenant, which the Plaintiff's solicitor sent to him; and on the 4th of the same month the Defendants' solicitor answered that it appeared to him that the covenant in the Plaintiff's conveyance did not affect the land in question; and that the Defendants had no notice of any restriction, and that the Plaintiff must adopt such course as he might be advised. A draft bill was [5] immediately prepared; but the Plaintiff's house being in mortgage to certain persons, some of whom refused to consent to their names being used as parties, the Plaintiff paid off the mortgage and took a reconveyance; and on the 27th of August he filed the bill in this suit againt the trustees of the land so purchased for the Odd Fellows Society, praying that the Defendants and their agents, builders and servants, might be restrained by injunction from erecting any building whatever, except monuments or tombs, on any part of the land so sold to the said Defendants; and that they might be directed to pull down the building so erected by them as aforesaid.

In addition to the facts above stated, there was an affidavit of Mr. Stredwick, a member of the Society of Odd Fellows, who deposed that some time between April 1852 and the 25th of June, and again in September in that year, he informed the Plaintiff, in conversation, of the purchase made by his society for the purpose of building their hall; and that the Plaintiff made no objection, but said he did not care so that it was not directly opposite his house. The Plaintiff had not had an opportunity of answering this affidavit. There was also some evidence that the Plaintiff, soon after the commencement of the building, had told the Defendants' builder that he must stop the erection as soon as he got as high as the monuments or tombs. The builder, however, deposed that the Plaintiff had never given any notice to him, or, to his knowledge, to anyone employed by him, to cease from erecting the said building. It was also in evidence that the Plaintiff had stated on one occasion that he could have prevented the erection of the dispensary if he had thought fit.

An interlocutory motion for an injunction was refused without costs on the 29th of September last; and, by arrangement between the parties, the cause now came on for hearing upon a motion for decree.

[6] Mr. Rolt and Mr. C. Marett, for the Plaintiff, said that one ground of defence would be that the covenant by Edwards was not in terms for himself and his "assigns," and that, therefore, the Defendants were not bound; but they contended that the covenant related to the land, and from its nature and the privity of estate between the covenanting parties it would run with the land, and therefore bound assigns of the covenantor though not named. The law on this point was summed up in Sugden's Vendors & Purchasers, Concise View, page 485, where, speaking of real covenants, he says, "As they relate to the land an assignee may maintain an action on them, although they were entered into with the original grantee and his heirs only:" Spencer's case (5 Rep. 16 a.), Keppell v. Bailey (2 My. & K. 517), Tatem v. Chaplin (2 H. Bla. 133). But even if the covenant did not run with the land the evidence proved that the Defendants had notice of it, and they were therefore bound in conscience, on the authority of Tulk v. Moxhay (2 Ph. 774).

Another ground of defence would be that the land on which the Defendants were building was not affected by the covenant, but that it only related to the piece of land immediately opposite to the house, and of the same width. If that were so the covenant would not be infringed though all the land opposite were built on except the small space directly in front. Such a construction was absurd, when the object of the covenant obviously was to secure the uninterrupted enjoyment of a prospect, and of light and air.

Another ground was that the Plaintiff had acquiesced in a former breach of the covenant by allowing the dispensary to be built upon the northern extremity of this land. The law on this subject was well understood since the case [7] of The Duke of Bedford v. The Trustees of the British Museum (2 My. & K. 552). It was that acquiescence might be presumed if a person entitled to the benefit of a covenant

of this kind altered the nature of the property to which it related, so as to shew that the covenant was of no value to him. [The Vice-Chancellor referred to Roper v. Williams (T. & R. 18).] But here the dispensary could scarcely be seen from No. 7 by looking sideways from the windows; and certainly could not obstruct light, air or prospect.

Another objection to the relief sought was that the Plaintiff had delayed for a long time and allowed the Defendants to expend money in building, and therefore it was now too late to interfere. But the Defendants' solicitor was made aware of the covenant in May 1852; and that was all the Plaintiff could do until some active steps in erecting a building were taken by the Defendants, and the natural reluctance of everyone to commence a Chancery suit, the Plaintiff's want of knowledge who were the purchasers, his belief, though mistaken, that the building might be carried up to the height of a tombstone or monument without infringing the covenant, the taking counsel's opinion and paying off the mortgage, had all contributed to cause, and ought to excuse, the delay. The Plaintiff had, from the first, insisted upon his covenant, and made it known as far as he could; and when the first stone of the building was advertised to be laid, he had directed his solicitor to obtain counsel's opinion as to his rights; and then the building was stopped for a time, which of course delayed his proceeding to sue.

Mr. Bacon and Mr. Hislop Clarke, for the Defendants, said that the main question was, what was the real meaning of the covenant? It was consistent with all the facts [8] of the case that the covenant should mean only that no building should be erected opposite to the particular house; and that Edwards should reserve the right of building on the other part of the garden land.

[THE VICE-CHANCELLOR. Your argument is that the words "and opposite," &c., in the covenant are restrictive.]

The conjunction "and" must qualify the rest of the sentence, or it was unnecessary; for all the land for some distance belonged to Edwards.

Then the parties by their acts had put this construction upon the covenant, for the dispensary had been built upon part of the garden without objection.

The delay was not satisfactorily accounted for. As to the mortgage on the Plaintiff's house, the mortgagee, who refused to be a Plaintiff, might have been made a Defendant. The Plaintiff had lost any right which he might have had by allowing the Defendants to lay out their money without interfering to prevent it.

The Vice-Chancellor desired Mr. Rolt, in reply, to address himself only to the construction of the covenant, and to the case of delay made by the Defendants against the Plaintiff.

Mr. Rolt, in reply, contended that "opposite" did not necessarily mean directly opposite only. Here the purpose for which the word was introduced gave it a more extensive meaning. It was used in the covenant as an additional description of the land, and not to restrict the preceding words. As to the delay, the Plaintiff could do nothing but make his covenant public until the building was commenced, and then he immediately took proceedings. The present application was for a decree, and not an inter-[9]-locutory motion for an injunction. The defence made on this point assumed that, on account of the delay of a few months, thus excused, the Court would decree that the Plaintiff was for ever to lose an interest in land in the nature of an easement. The Vice-Chancellor reserved his judgment.

Nov. 4. THE VICE-CHANCELLOR [Sir W. Page Wood]. This case came before me originally upon a motion for an injunction, and I was then clearly of opinion that there had been such delay on the part of the Plaintiff that I could not accede to the application for an injunction upon an interlocutory proceeding. The parties then agreed that the better course would be that the matter should come on upon a motion for decree; and, accordingly, it is now ripe for the decision of the Court.

I think that the question must turn entirely upon the construction of the deed of 1830. Several other points have been raised and discussed at the hearing. The first was as to the question whether the covenant runs with the land. That point appears to me to be entirely beside the present question between these parties, because, no doubt, according to the evidence in this case, distinct notice was given to the Defendants, before they purchased this property, of the existence of the covenant in the.