As to the first part of these arguments, I am disposed to think the case of Milnes v. Branch, 5 M. & S. 411, is an authority directly in point in favor of the defendants. It is true that Lord St. Leonards appears to disapprove of this decision (2 Vendors and Purchasers, 14th ed. p. 591, note); but I must regard it as a binding authority till it is overruled.

With regard to the second point, I think that the plaintiff's contention must prevail. The only distinction on which the defendants relied to take the case out of the ordinary rule as to persons in possession of land being bound to perform covenants relating to it of which they have notice, was that, though an equity to use property or to abstain from using it in a particular way may be so attached to land, a liability to repair or do similar acts cannot. I see no reason for this distinction, and it is directly opposed to the case of Cooke v. Chilcott, 3 Ch. Div. 694.

The result is that there must be judgment for the plaintiff, with costs. There will be no damages, the parties having agreed that if it is formally decided that the defendants are to put the buildings in repair, they must be repaired to the satisfaction of a gentleman agreed upon.

The defendants appealed.

Ambrose, Q. C., and Henry (Crompton with them), for the defendants.

Addison, Q. C., and R. H. Collins, for the plaintiff.

BRETT, L. J. This appeal must be allowed. I am clearly of opinion, both on principle and on the authority of Milnes v. Branch, that this action could not be maintained at common law. Milnes v. Branch must be understood as it always has been understood, and as Lord St. Leonards (Sug. V. & P. 14th ed. p. 590) understood it; and it will be seen, on a reference to his book, that he considers the effect of it to be that a covenant to build does not run with the rent in the hands of an assignee.

This being so, the question is reduced to an equitable one. Now the equitable doctrine was brought to a focus in Tulk v. Moxhay, 2 Pb. 774, which is the leading case on this subject. It seems to me that that case decided that an assignee taking land subject to a certain class of covenants is bound by such covenants if he has notice of them, and that the class of covenants comprehended within the rule is that covenants restricting the mode of using the land only will be enforced. It may be also, but it is not necessary to decide here, that all covenants also which impose such a burden on the land as can be enforced against the land would be enforced. Be that as it may, a covenant to repair is not restrictive, and could not be enforced against the land; therefore such a covenant is within neither rule. It is admitted that there has been no case in which any court has gone farther than this, and yet if the court would have been prepared to go farther, such a case would have arisen. The strongest argument to the contrary is, that the reason for no court having gone farther is that a mandatory injunction was not in former times grantable, whereas it is now; but I cannot help thinking, in spite of

this, that if we enlarged the rule as it is contended, we should be making a new equity, which we cannot do.

I think also that Cox v. Bishop, 8 De G. M. & G. 815; 26 L. J. Ch. 389, shows that a Court of Equity has refused to extend the rule of Tulk v. Morhay in the direction contended for, and that if we decided for the plaintiff we should have to overrule that case. But it is said that if we decide for the defendants we shall have to overrule Cooke v. Chilcott. If that case was decided on the equitable doctrine of notice, I think we ought to overrule it. But I think there is much to show that the ground of the decision was that Malins, V. C., was of the opinion wrongly as it now turns out - that the covenant ran with the land, and the decision of the Court of Appeal appears to have proceeded on an admission.

COTTON, L. J. I am of the same opinion on both points. I think that a mere covenant that land shall be improved does not run with the land within the rule in Spencer's Case, 1 Sm. L. C. 8th ed. at p. 89, so as to give the plaintiff a right to sue at law. I also think that the plaintiff has no remedy in equity. Let us consider the examples in which a Court of Equity has enforced covenants affecting land. We find that they have been invariably enforced if they have been restrictive, and that with the exception of the covenants in Cooke v. Chilcott, only restrictive covenants have been enforced. In Tulk v. Moxhay, the earliest of the cases, Lord Cottenham says: "That this court has jurisdiction to enforce a contract between the owner of land and his neighbor purchasing a part of it, that the latter shall either use or abstain from using it in a particular way, is what I never knew disputed.” In that case the covenant was to use in a particular manner, from which was implied a covenant not to use in any other manner; and the plaintiff obtained an injunction restraining the defendant from using in any other manner, although the covenant was in terms affirmative. At p. 778, Lord Cottenham says: "If an equity is attached to property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased." This lays down the real principle that an equity attaches to the owner of the land. It is possible that the doctrine might be extended to cases where there is an equitable charge which might be enforced against the land, but it is not necessary to decide that now; it is enough to say that with that sole exception the doctrine could not be farther extended. The covenant to repair can only be enforced by making the owner put his hand into his pocket, and there is nothing which would justify us in going that length. We are not bound here by Cooke v. Chilcott, and I do not think that the rule of Tulk v. Moxhay can be extended as Malins, V. C., there extended it. In Morland v. Cook, Law Rep. 6 Eq. 252, there are perhaps some expressions of Romilly, M. R., which favor the opposite contention; but the fact of there being a deed of partition in that case makes it distinguishable. That is the only case besides Cooke v. Chilcott at all in favor of the plaintiff.

Cox v.

Bishop, 26 L. J. Ch. 389, is distinctly the other way. There the covenants affected the owner, but not the land; and although the defendant was full equitable owner, the court refused an injunction. Daniel v. Stepney, Law Rep. 9 Ex. 185, where there was merely a grant of a rent to be distrained for on land adjoining the land demised, does not seem to me to be in point, and such observations of Bramwell, B., in Aspden v. Seddon, 1 Ex. Div. 496, as might possibly assist the plaintiff, are extra judicial. There is therefore no ground for extending the equitable doctrine as we are asked to do.

LINDLEY, L. J. I am of the same opinion. The practical question is, whether the defendants, being mortgagees in possession, are bound to repair under the circumstances of the case. It is said that the obligation to repair is imposed upon them because they took a conveyance of the land with notice of the covenant, and Stephen, J., has thought himself bound by Tulk v. Moxhay and Cooke v. Chilcott.

Now I may first say that I do not think that the defendants could be hit by any process of circuity of action. As mortgagees they took the land subject to the rent-charge no doubt, so far as the liability to distress and re-entry were concerned. I do not think that either covenant runs with the land. Neither Milnes v. Branch, 5 M. & S. 411, nor Randall v. Rigby, 4 M. & W. 130, however, applies very closely. In Milnes v. Branch the plaintiff was not assignee in fee of the rent, having only a leasehold interest in that rent. In Randall v. Rigby the ques tion was whether debt or covenant was the proper form of action. There are dicta in the judgments, however, which favor the contention of the defendants in this case, and it is impossible not to see that the burden of the covenant does not run with the land. This is not a case of landlord and tenant; we must never lose sight of that distinction.

With regard to the question of notice, Tulk v. Moxhay shows that a restrictive covenant will be enforced; and so do Cox v. Bishop and Wilson v. Hart, Law Rep. 1 Ch. 463. But I think that the result of these cases is that only such a covenant as can be complied with without expenditure of money will be enforced against the assignee on the ground of notice. Especially does this appear from Wilson v. Hart, Law Rep. 1 Ch. 464, where a covenant not to use a house as a beershop was enforced against a purchaser's tenant from year to year. It is absurd to suppose that such a tenant could have been compelled to perform a covenant to repair.

The principle of Cooke v. Chilcott may or may not be applicable to this case, but the circumstances were wholly different. I should be sorry to overrule that case, and prefer to leave it to be reconsidered on some future occasion. It is enough to say that in the present case we have been asked to extend Tulk v. Moxhay as it has never been extended before, and we decline to do so.

Appeal allowed.1

1 See Austerberry v. Oldham, 29 Ch. Div. 750.

APPEAL from the Superior Court of the city of New York. Action to restrain the defendants, who owned the lot on the northeast corner of Eighth Street and Third Avenue in the city of New York, from erecting a building thereon covering the whole lot, and to require them to leave a space of eight feet between the building and the line of the street, in conformity to the plan on which the dwellings of the plaintiffs and other proprietors of adjacent lots were located. From the pleadings, and the finding of the judge before whom the cause was tried, these facts appeared: In 1829, a strip of land, sixty feet in width from the Second to the Third Avenue, was conveyed to the city of New York for the purposes of a public street. It was accepted by the city, and became a part of Eighth Street, as it was then called. On and prior to February, 1831, and before any of the land had been built upon, one Davis became the owner of all the lots on both the sides of this street. Davis made a map of the street between the Second and Third Avenues, in which the street was shown as seventy-six feet wide, eight feet being added on each side. He called the avenue, thus widened, St. Mark's Place. This was before he sold or built on any of the lots. Soon thereafter, in conformity with this plan, Davis erected sixteen dwellinghouses on the south side of the street, and thirteen on the north side. They were of a superior class, all upon one uniform line, eight feet back from the original line of the street, the eight feet being devoted to doorsteps and areas enclosed in iron fences. When Davis sold any of the houses or lots, he exhibited this plan to the purchasers, and represented to all who had purchased that the street was always to remain as laid out, and that, when he so formed and laid out the street and built thereon, he gave up and dedicated the strip of eight feet of land on each lot to be used as a part of the Place in the manner it has since been used. It would appear that the effect of this plan of building was to save the sidewalk from the encroachment that it would otherwise have suffered from the projection of the doorsteps, and thus, in effect, to widen the available footpath. In October, 1832, after sales to the plaintiffs, Davis sold two lots to one Henriques. The conveyance, though absolute in form, appears to have been in the nature of a mere security, Davis retaining the right to dispose of the property and account for the proceeds. In 1833 he negotiated the sale of these lots to one Wilkes, showing to him the plan, or diagram before mentioned, and declaring his intention that the buildings to be erected thereon should be set back eight feet from the original line of the street.

On one of these lots, which was on a corner, Wilkes erected a building, owned by the defendant at the time of commencement of this suit, and which it was preparing to tear down. This building and two others erected by Wilkes were located in conformity to the line previously adopted and built upon by Davis. The deeds of Davis were absolute ✓ and unrestricted, conveying the legal title to the entire lots as bounded by the original line of the street. One of the mesne conveyances under which the defendant derived title refers to a "certain court-yard of eight feet in width," as included in the premises, and at the end of the habendum clause are the words: "Subject to all restrictions and covenants, if any exist, in relation to keeping the court-yard perpetually open as said court-yard." The defendant bought, it was found by the judge, with notice that it was claimed there were restrictions which would prevent it from acquiring a right, as purchaser of the lot, to build upon the eight feet described as court-yard.

The judge found, as a conclusion of law from these facts, that Davis had made a valid dedication of the eight feet of land on each side of the street, and that its validity is not affected by the fact that it was made with the intention and understanding that the proprietors of lots should be at liberty to enclose eight feet as an area or court-yard. He ordered judgment for the relief demanded in the complaint. The judg ment was affirmed at General Term, not on the ground of dedication, but on the ground that, the original purchasers having verbally agreed to, and executed a plan for, the improvement of the Place, they were bound to adhere to it, and the defendant, purchasing with notice, took subject to the same equity. The defendant appealed to this court. William Allen Butler, for the appellant. Richard Mott, for the respondent.

SUTHERLAND, J. It is very plain that this action could not be maintained on the ground that the strip of ground, eight feet in width, which it was the purpose of the action to restrain the defendant from building on, had been dedicated to the public. The deeds from Davis to Henriques, and from Henriques to Wilkes, which were deeds with full covenants, bound the lots on the original line of the street, sixty feet in width; thus including the strip of land in question. Usually, when land is dedicated to public use, the owner retains the legal title. No doubt there may be an express dedication by deed; but, as the public cannot be a grantee, or the grantees, when there is an express dedication by deed, the deed must be to an individual, or body corporate, capable of being a grantee, and of holding for the use of the public. Neither of the deeds before mentioned declared any such public use or trust; and the covenants in the deeds would seem to be inconsistent with an intention by such deeds to dedicate the strip of land to public The deeds from Davis to Maxwell, one of the plaintiffs, convey with full covenants to the street line, and without any restriction, stipulation, or dedication as to the eight feet. The making and exhibition of the map of St. Mark's Place by Davis, showing an open space of

use.