Coles v Sims
| Jurisdiction | England & Wales |
| Judgment Date | 16 January 1854 |
| Date | 16 January 1854 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 768
BEFORE THE LORDS JUSTICES.
S. C. Kay, 56; 2 Eq. R. 951; 23 L. J. Ch. 258; 18 Jur. 683; 2 W. R. 151. See Western v. MacDermott, 1866, L. R. 2 Ch. 74; Keates v. Lyon, 1869, L. R. 4 Ch. 223; Renals v. Cowlishaw, 1878, 9 Ch. D. 129; Patman v. Harland, 1881, 17 Ch. D. 357; Russell v. Watts, 1885, 10 App. Cas. 603; Shephard v. Gilmore, 1887, 57 L. J. Ch. 9; Nottingham Patent Brick and Tile Co. v. Butler, 1889, 15 Q. B. D. 269; Mackenzie v. Childers, 1889, 43 Ch. D. 279.
Reports of CASES HEARD and DETERMINED by the LORD CHANCELLOR and the COURT OF APPEAL IN CHANCERY. 1854-55. By J. P. DE GEX, S. MACNAGHTEN, and A. GORDON, Esqrs., Barristers - at - Law. 1855. Vol. V. [NOTE.-The Cases in this Volume before the lord chancellor are reported by Messrs. macnaghten & gordon; and those before the Lords Justices of the Court of Appeal by Mr. de gex.] [1] coles v. sims. Before the Lords Justices. Jan. 16, 1854. [S. C. Kay, 56; 2 Eq. E. 951; 23 L. J. Ch. 258; 18 Jur. 683; 2 W. R. 151. See Western v. MacDermott, 1866, L. R, 2 Ch. 74 ; Keates v. Lyon, 1869, L. R. 4 Ch. 223; Renals v. Cowlishaw, 1878, 9 Ch. D. 129 ; Patman v. Harland, 1881, 17 Ch. D. 357 ; Russell v. Walts, 1885, 10 App. Gas. 603 ; Shephard v. Gilmare, 1887, 57 L. J. Ch. 9 ; Nottingham Patent Brick and Tile Co. v. Butler, 1889, 15 Q. B. D. 269 ; Mackenzie v. Childers, 1889, 43 Ch. D. 279.] On an agreement to sell part of a vendor's land, the vendor and purchaser entered into mutual covenants prohibiting building except in a specified manner, on the sold and unsold parts, with a stipulation for payment of liquidated damages in case of breach of covenant. Held,- 1. That a subsequent owner of the unsold part, claiming through the grantor by means of deeds, one of which referred to the deed containing the prohibitory clause, but not to that clause, was bound by the prohibition in equity. 2. That the circumstance of the grantor not having performed a covenant, to obtain for the grantee a direct covenant from the former purchaser, did not constitute a defence, it not appearing that any application had been made to the grantor for that purpose. 3. That notice of a right to prevent building, and of an intention to enforce it, given before any expense was incurred, followed by a bill for an injunction, though not filed till four months afterwards, was sufficient to exclude a defence on the ground of laches, it appearing that the Plaintiff could not sooner establish his right to enforce the prohibition. 4. That the clause as to liquidated damages did not exclude the interference of the Court by interlocutory injunction. This was an appeal from an order of Vice-Chancellor Wood, upon a motion granting an injunction to restrain the Defendant from building in a manner at variance with a covenant. The case is reported below in Mr. Kay's Reports, page 56, but a covenant for the payment of liquidated [2] damages (set out infra, p. 3), on which the argument on the appeal mainly turned, is not there noticed, having for the first time been brought to the attention of the Court upon the appeal. JDEO. M. 60.3. COLES V. SIMS 769 The following is a short summary of the facts of the case :- By an indenture, dated the 1st of September 1823, and made between John Shewell, of the one part, and Samuel Morris, of the other part, in consideration of 700 to be paid to John Shewell by Samuel Morris, Shewell, for himself, his heirs, executors and administrators, covenanted with Morris, his heirs and aasigns, to convey to him or them certain pieces of land, part of a larger piece belonging to Shewell. By the same deed Morris (as to the pieces of land agreed to be conveyed to him), for himself, his heirs, executors, administrators and assigns, covenanted with Shewell, his heirs and assigns, and Shewell (so far as respected the rest of the land) for himself, his heirs, executors, administrators and assigns, covenanted with Morris, his heirs and assigns^ as follows ; viz., that Morris, his heirs and assigns, should build two dwelling-houses on the pieces of land covenanted to be sold to him, to range with the fronts of all the messuages which should be thereafter built on the other parts of the land, with other stipulations as to the character and position of such buildings ; and that no building of any other description whatsoever should at any time thereafter be erected, built or set up, in or upon or against the eastern front of the messuages, or any of them, or upon the said ground in front thereof, but that the ground on the eastern front of the messuages should be laid out as pleasure-ground, and should be [3] for ever thereafter used as a flower-garden and pleasure-ground, and that no shrub or tree should be planted in the same ground which should grow or extend ten feet in height from the ground. And Shewell covenanted not to dispose of any of the other parts of the piece of land unless subjected to the like conditions and restrictions as to building. The agreement also contained the following covenant:- " And the said John Shewell and Samuel Morris do hereby, for themselves, their heirs, executors and administrators, covenant to and with each other, that in default or non-performance of all or any or either of the covenants and agreements hereinbefore contained on their respective parts, the party making such default or non-performance shall pay to the other the sum of 100, to be recovered and recoverable as and for liquidated damages, as and for such default or non-performance the jury having only to find the fact of all or any or either of the said covenants not having been performed as hereinbefore expressed." In November 1823, Shewell sold other part of the piece of land to Thomas Jones, and by indentures of lease and appointment and release dated respectively the 20th and 21st of November 1823 (after reciting the sale to Morris), Shewell, in consideration of 1800, appointed and conveyed such other part of the piece of land to Thomas Jones, his heirs and assigns for ever; and Shewell thereby, for himself, his heirs and assigns, covenanted with Jones, hia heirs and assigns, that, in the several releases and appointments or other conveyances and assurances, which he should make and execute to the said Samuel Morris and other purchasers, and each of them, or to their heirs and assigns respectively, of the respective lots or lot of ground purchased, he the said [4] John Shewell, his heirs and assigns, should require the said Samuel Morris and such other purchasers, and each of them, and their and each of their heirs and assigns, to enter on their and each of their parts and behalfs, to and with the said Thomas Jones, his heirs and assigns, into all and several the covenants, provisoes and agreements mentioned in the several contracts, so entered into by them for the purchase of their respective lot or lots of the said ground, or such of the said covenants, agreements and provisoes as should be then necessary and be in existence. And Jones, for himself, his heirs, executors and administrators, covenanted with Shewell, his heirs and assigns, that Jones, his heirs, appointees and assigns would, when and in case he or they should build a messuage or messuages on the said piece of garden ground thereby conveyed, erect the front thereof in a line with the said messuage erected or intended to be erected by Morris. After several mesne conveyances, Morris's pieces of land became vested in the Plaintiff, and Jones's piece of land in the Defendants. In June 1853, the Defendants pulled down one of the houses erected on the land to which they became entitled through Jones, and commenced building a Baptist chapel upon it, not so as to be in a line with the house erected by Morris. In the same month the Plaintiff's solicitor stated to the Defendants, or one of them, that the Plaintiff objected to their building in a manner contrary to the stipulations of the deed of November 1823, and intended, if he could, to prevent their so doing. C. xxm.-25 770 COLES V. SIMS 8DBO.M.&0.8. In October 1853, the bill in the present suit was filed, [5] praying for an injunction to restrain the Defendants, their servants, agents and workmen, from proceeding with the building of the chapel upon the piece of ground beyond the front of the Plaintiff's house. The Vice-Chancellor made an order in the terms of the prayer of the bill. Subsequently to the order of the Vice-Chancellor, an affidavit was filed, stating, that on the 21st of December 1853, the Deponent applied to the solicitor of the vendors to know whether the deed of conveyance from Shewell to Morris contained any covenant on the part of Mr. Morris with Thomas Jones, and that the solicitor replied that it did not, and further said, that he was originally concerned for Samuel Morris and for John Shewell, and that there never was any covenant entered into by Samuel Morris with Thomas Jones respecting the ground and premises purchased by Samuel Morris or by Thomas Jones of John Shewell, and that the Deponent might see the original deed. That he did, on the 21st of December last, peruse the conveyance from John Shewell to Samuel Morris, and also inspected the several other title-deeds which the solicitors produced to him as those evidencing the title of the Plaintiff to the premises, and that no such covenant by Samuel Morris with Thomas Jones was contained in the conveyance to Samuel Morris, nor in any other deed or writing so shewn to him by the solicitor, but that there were in the conveyance to Samuel Morris covenants on the parts of Samuel Morris with John Shewell, some of which were to the like effect as those alleged in the Plaintiff's bill to be contained in the contract of the 1st of September 1823, and others different therefrom, but that the deed of conveyance did not contain the covenant contained in the articles of [6] agreement of the 1st of September 1823, respecting liquidated damages. A photographic...
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