The Vice-Chancellor :
The great question is, upon the effect of the covenants in the deeds against offensive trades and business; and, how far the complainant can avail himself of them ?
This is an important question, not only as respects this particular property, but in regard to other parts of the city, where a large amount of real estate is held under deeds and leases containing similar covenants or conditions. The clause inserted in a few of the deeds executed by Mr. Mercein for the lots which he first sold, are in the form of conditions, the legal effect of which would be to defeat the estate granted, in case [100]*100of a breach of the condition; but no other person than the grantor or his heirs can, at law, take advantage of the condition and re-enter for a forfeiture or breach. In the subsequent deeds and those under which both the complainant and defendants held, this provision is introduced by way of covenant; and though it is expressed to be a covenant mutually made between the parties to the deed, their heirs and assigns, its only object can be to restrain the grantee and his heirs and assigns, and not the grantor and his heirs ; for having sold and conveyed the fee simple of the lots, the grantor and his heirs can have no use or enjoyment of the property afterwards, and, therefore, no need of covenants on their part restraining them in the use or enjoyment. We are, therefore, to regard it as a several covenant of the grantee made to and with the grantor; but it is nevertheless a covenant “ running with the land” and, as such, is binding upon the heir of the covenantor and any subsequent purchaser under him, as assignee of the land : for the covenant follows the land, and becomes obligatory upon those who succeed to the same land, whether by descent or purchase : 2 Sugden Vend. 78 ; Platt on Cov. 461.
The object of these covenants, on the part of purchasers, and the reason for making it either a condition of the sale of each lot or for requiring such covenants, is very manifest. Mr. Mercein owned all the lots in the block, which, from their locality, were calculated for good dwelling houses and for forming a highly respectable neighborhood. In disposing of the lots, it was very important to him that the sale of one lot should not impair the value nor prejudice the sale of the rest; and hence he took care to lay the purchasers under the restriction contained in the covenants as to the use to be made of the lots; thus endeavoring to enhance their value and to encourage the erection of elegant houses, instead of suffering any of the lots to be depreciated by the introduction of stables or manufactories or business of any kind that might prove offensive or injurious to the character of adjoining lots or of the immediate neighborhood. In this respect, the covenants were to operate for the personal benefit of Mr. Mercein, while he remained the owner of any lot in the block; but if he has sold or should sell off every lot and part with all his interest in the [101]*101property, (and it does not appear by the bill how the fact is) then he would seem no longer to have any interest in the covenants, since, by a breach, which subsequently might be committed, he could not be injured. But the question is not now upon the continuing effect of the covenants in favor of Mr. Mercein or as to his rights and the remedies which he could pursue for a non-performance. The question now is, between the different grantees of Mr. Mercein in respect to their several lots, whether one of such grantees or a purchaser under him can claim any benefit of the covenant made to and with Mr. Mercein or can have any remedy against another grantee for a breach of such covenant ? These covenants, upon their face, purport to include the “ heirs and assigns” of both contracting parties. It has already been observed how far these covenants bind the “heirs and assigns” of the covenantor or purchaser, as covenants running with the land. They bind in respect to the particular lot conveyed, to which the covenant relates ; but where is the land to which the covenant attaches itself in the hands of Mercein and follows upon his transfer or conveyance to a third person, so as to give that third person the benefit of the covenant, as his assignee ? There is none.
Selling one lot to A. in fee, and taking A’s. covenant, restricting the use to be made of the lot, and then conveying an adjoining lot to B. upon similar terms, does not constitute B. the assignee of A’s covenant. If Mr. Mercein, as the owner of land, had granted a term of years to A., taking his covenant as to the manner of using the land, and had then sold the reversion of the same land to B. in fee : here, the covenant of A. would follow the conveyance of the reversion to B., and the latter would be the assignee entitled to sue at law for a violation subsequent to his purchase. It is very obvious, that the present complainant does not stand in that situation, nor is he clothed with the legal rights of such an assignee.
I have met with one case bearing some analogy to the present—that of the Duke of Bedford v. The Trustees of the British Museum, in the 2d of Sugden on Vendors, app. 361, but no where else reported. There, the duke had become the owner of Southampton House, the former owner of which, in selling other ground on which the museum stood, had taken a covenant from the purchaser, that he, the purchaser, would [102]*102not erect buildings on the ground conveyed to him to the northward of the line of Southampton House. Southampton House was afterwards pulled down; and on the side of it, adjacent to the museum gardens, houses had been built by the Duke of Bedford—and the question was, whether, in equity, he had a right to restrain the trustees of the British Museum from erecting buildings in the museum gardens to the northward of the line designated, contrary to the letter of the covenant. The vice-chancellor, before whom the cause was first heard, had difficulty in his own mind, as to the construction to be given to the covenant; whether it was a covenant intended to afford additional security for certain rents reserved out of the lands conveyed to the covenantor; and if so, then he appears to have considered that it was not a covenant running with the land not granted, that is, with the land upon which Southampton House was built, so as to give the subsequent owners of this land a right of action at law, as assignee of the covenant; and if no action at law could be sustained, then he considered there could be no remedy in equity.
Another view, however, was urged, as the one that might be taken of the covenant, viz. that it was intended not to secure the rents merely, but to prevent such a use of the land granted, as might tend to diminish either the valuable or pleasurable enjoyment of the land, adjoining on which Southampton House was built. The vice-chancellor, therefore, stated the question to be, whether, upon the whole of the deed, it did appear that the covenants had been so framed, as to afford evidence of an agreement between the parties and those who should represent them, as being owners of Southampton House, on the one hand, and, on the other, as being owners of the land adjoining, that the latter would never use this land but in the manner prescribed, either to the prejudice or the profit or pleasure of Southampton House 1 If the deed afforded evidence that such were the intentions of the parties to the instrument, then he said there was a clear remedy at law against the act sought to be performed and a clear remedy in a court of equity by way of injunction, to restrain the commission of that act.
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The Vice-Chancellor :
The great question is, upon the effect of the covenants in the deeds against offensive trades and business; and, how far the complainant can avail himself of them ?
This is an important question, not only as respects this particular property, but in regard to other parts of the city, where a large amount of real estate is held under deeds and leases containing similar covenants or conditions. The clause inserted in a few of the deeds executed by Mr. Mercein for the lots which he first sold, are in the form of conditions, the legal effect of which would be to defeat the estate granted, in case [100]*100of a breach of the condition; but no other person than the grantor or his heirs can, at law, take advantage of the condition and re-enter for a forfeiture or breach. In the subsequent deeds and those under which both the complainant and defendants held, this provision is introduced by way of covenant; and though it is expressed to be a covenant mutually made between the parties to the deed, their heirs and assigns, its only object can be to restrain the grantee and his heirs and assigns, and not the grantor and his heirs ; for having sold and conveyed the fee simple of the lots, the grantor and his heirs can have no use or enjoyment of the property afterwards, and, therefore, no need of covenants on their part restraining them in the use or enjoyment. We are, therefore, to regard it as a several covenant of the grantee made to and with the grantor; but it is nevertheless a covenant “ running with the land” and, as such, is binding upon the heir of the covenantor and any subsequent purchaser under him, as assignee of the land : for the covenant follows the land, and becomes obligatory upon those who succeed to the same land, whether by descent or purchase : 2 Sugden Vend. 78 ; Platt on Cov. 461.
The object of these covenants, on the part of purchasers, and the reason for making it either a condition of the sale of each lot or for requiring such covenants, is very manifest. Mr. Mercein owned all the lots in the block, which, from their locality, were calculated for good dwelling houses and for forming a highly respectable neighborhood. In disposing of the lots, it was very important to him that the sale of one lot should not impair the value nor prejudice the sale of the rest; and hence he took care to lay the purchasers under the restriction contained in the covenants as to the use to be made of the lots; thus endeavoring to enhance their value and to encourage the erection of elegant houses, instead of suffering any of the lots to be depreciated by the introduction of stables or manufactories or business of any kind that might prove offensive or injurious to the character of adjoining lots or of the immediate neighborhood. In this respect, the covenants were to operate for the personal benefit of Mr. Mercein, while he remained the owner of any lot in the block; but if he has sold or should sell off every lot and part with all his interest in the [101]*101property, (and it does not appear by the bill how the fact is) then he would seem no longer to have any interest in the covenants, since, by a breach, which subsequently might be committed, he could not be injured. But the question is not now upon the continuing effect of the covenants in favor of Mr. Mercein or as to his rights and the remedies which he could pursue for a non-performance. The question now is, between the different grantees of Mr. Mercein in respect to their several lots, whether one of such grantees or a purchaser under him can claim any benefit of the covenant made to and with Mr. Mercein or can have any remedy against another grantee for a breach of such covenant ? These covenants, upon their face, purport to include the “ heirs and assigns” of both contracting parties. It has already been observed how far these covenants bind the “heirs and assigns” of the covenantor or purchaser, as covenants running with the land. They bind in respect to the particular lot conveyed, to which the covenant relates ; but where is the land to which the covenant attaches itself in the hands of Mercein and follows upon his transfer or conveyance to a third person, so as to give that third person the benefit of the covenant, as his assignee ? There is none.
Selling one lot to A. in fee, and taking A’s. covenant, restricting the use to be made of the lot, and then conveying an adjoining lot to B. upon similar terms, does not constitute B. the assignee of A’s covenant. If Mr. Mercein, as the owner of land, had granted a term of years to A., taking his covenant as to the manner of using the land, and had then sold the reversion of the same land to B. in fee : here, the covenant of A. would follow the conveyance of the reversion to B., and the latter would be the assignee entitled to sue at law for a violation subsequent to his purchase. It is very obvious, that the present complainant does not stand in that situation, nor is he clothed with the legal rights of such an assignee.
I have met with one case bearing some analogy to the present—that of the Duke of Bedford v. The Trustees of the British Museum, in the 2d of Sugden on Vendors, app. 361, but no where else reported. There, the duke had become the owner of Southampton House, the former owner of which, in selling other ground on which the museum stood, had taken a covenant from the purchaser, that he, the purchaser, would [102]*102not erect buildings on the ground conveyed to him to the northward of the line of Southampton House. Southampton House was afterwards pulled down; and on the side of it, adjacent to the museum gardens, houses had been built by the Duke of Bedford—and the question was, whether, in equity, he had a right to restrain the trustees of the British Museum from erecting buildings in the museum gardens to the northward of the line designated, contrary to the letter of the covenant. The vice-chancellor, before whom the cause was first heard, had difficulty in his own mind, as to the construction to be given to the covenant; whether it was a covenant intended to afford additional security for certain rents reserved out of the lands conveyed to the covenantor; and if so, then he appears to have considered that it was not a covenant running with the land not granted, that is, with the land upon which Southampton House was built, so as to give the subsequent owners of this land a right of action at law, as assignee of the covenant; and if no action at law could be sustained, then he considered there could be no remedy in equity.
Another view, however, was urged, as the one that might be taken of the covenant, viz. that it was intended not to secure the rents merely, but to prevent such a use of the land granted, as might tend to diminish either the valuable or pleasurable enjoyment of the land, adjoining on which Southampton House was built. The vice-chancellor, therefore, stated the question to be, whether, upon the whole of the deed, it did appear that the covenants had been so framed, as to afford evidence of an agreement between the parties and those who should represent them, as being owners of Southampton House, on the one hand, and, on the other, as being owners of the land adjoining, that the latter would never use this land but in the manner prescribed, either to the prejudice or the profit or pleasure of Southampton House 1 If the deed afforded evidence that such were the intentions of the parties to the instrument, then he said there was a clear remedy at law against the act sought to be performed and a clear remedy in a court of equity by way of injunction, to restrain the commission of that act. But a court of equity would only follow the law upon such an agreement and give the same construction to it and merely restrain where a court of law could give [103]*103damages. He concluded to send the case to a court of law, to determine what the intention of the parties really was. On the hearing before Lord Eldon, it is stated that he ultimately decided, that, under the circumstances, considering the acts of the parties and the alteration of the property, &c., the right to relief in equity was at an end.
The grounds of Ld. Eldon’s determination are not given, which, perhaps, is to be regretted; but, from the reasoning of the vice-chancellor in the case, it would seem that the principle on which that case proceeded was that the remedy in equity was to be graduated by the remedy at law upon the covenant or agreement and where no right of action at law could be traced to the party asking the injunction, he was not entitled to it.
It appears to me, however, that this is too narrow and limited a view to be taken of the powers and jurisdiction of the court in cases of this sort; and that, after all, the true doctrine which governs the case is to be found in Hills v. Miller, 3 Paige, 254, and in cases of that class.
With respect to the question, whether the business of a coal yard is an offensive trade or business or is among the number of things guarded against by the covenants, depends upon evidence. Enough is shown by the bill to bring it within the prohibition as a private nuisance, if not a public one. The defendant cannot, upon demurrer, gainsay the facts alleged in the bill. How far this court interferes to restrain a nuisance of any sort, I will not now inquire. Upon the ground of a privilege or easement created by the covenants, which it is competent for this court to protect the parties in the enjoyment of, and which constitute an equity in this bill, the demurrer must be overruled. Order accordingly,
) In affirming this decision, Chancellor Walworth said: “ There can be no doubt, if the allegations in the bill are true, that the use of lots 12 and 13 as a coal yard is a clear violation of the covenants of the grantees of those lots. The language of the covenant shows that several other uses of the lots far less offensive than this are, in terms, prohibited, on the ground that they would probably be offensive to the neighborhood. The allegation in the bill on this subject, though it is a little poetical, cannot be considered a mere poetic fiction, as it is sworn to by the complainant and is admitted by the demurrer.” “'Making all due allowance for the coloring which the pleader has given to this naturally dark picture, it is perfectly certain that this keeping of a coal yard upon any of these lots is a business offensive to the neighboring inhabitants according to the spirit and intent of these restrictive covenants.”