Stilwell v Blackman

ACTION.

By a conveyance, dated November 30, 1955, Mrs. Helen Margaret Hardinge Martin, the predecessor in title of the plaintiff, Miss Muriel Joan Stilwell, conveyed to Major Frederick George Stone, the predecessor in title of the defendant, Herbert William Blackman, a piece of land at Yateley in the county of Southampton. Clause 2 of the conveyance contained a restrictive covenant in the following terms:

“The purchaser with intent and so to bind (so far as applicable) the property hereby conveyed into whosoever hands the same may come and to benefit and protect the adjoining property of the vendor hereby covenants with the vendor that he the purchaser and his successors in title will at all material times hereafter observe and perform the stipulations and restrictions in relation to the property hereby conveyed, which are set out in the schedule hereto.”

The schedule referred to contained three clauses, of which the second was material to the present case, namely:-

“(b) Not to use the said land for any purpose whatsoever except as a private garden and for keeping hens not exceeding 24 in number for his own use.”

By a conveyance, dated August 1, 1957, Mrs. Martin conveyed to the plaintiff the whole of the property referred to in the conveyance of November 30, 1955, as the “adjoining property of the vendor,” together with the benefit of the restrictive covenant, which was expressly assigned in the following terms:-

“Together also with the benefit of the covenants binding on the adjacent land contained in the said deed of conveyance, [i.e., that of November 30, 1955] with power in each case in the name of the vendor but at the cost in all respects and sole risk of the purchaser and the persons deriving title under her to sue upon and enforce the said covenants.”

The land, subjected to the burden of the restrictive covenant was conveyed by Major Stone to the defendant, by a conveyance dated August 16, 1961. The defendant asked to be relieved of the burden of the restrictive covenant but the plaintiff refused. The defendant then started parking derelict cars in increasing numbers on his land. The plaintiff built a house on the western portion of her land which lay nearest to the burdened land, and on November 13, 1964, she conveyed to one Geoffrey Victor Girdler the eastern portion of her land which lay furthest from the burdened land and on which her original cottage stood. On November 20, 1964, Girdler conveyed to the defendant the land acquired by him under the conveyance of November 13, 1964. That conveyance contained a recital that the purchase money paid to the plaintiff upon the conveyance by her to Girdler had been provided by the defendant, and that Girdler had since held the land on trust for him.

On February 19, 1965, the plaintiff issued a writ claiming an injunction to restrain the defendant from using the burdened land or any part thereof for the parking of any vehicle or vehicles or for any other purpose whatsoever except as a private garden or for keeping hens not exceeding 24 in number for his own use, and damages. The defence as amended denied that the benefit of the restrictive covenant was vested in the plaintiff. It was contended that the benefit had been annexed by the conveyance of 1955 to the whole of the property of the vendor then adjoining the burdened land and that the plaintiff having conveyed away a portion of that land the covenant was not longer enforceable. The defendant admitted that he had used, and intended unless restrained to continue to use, the land otherwise than as a private garden or for the keeping of hens, namely for the parking of vehicles, but denied that such user or intended user was wrongful. Further facts are stated in the judgment.