The Duke of Bedford v The Trustees of the British Museum
| Jurisdiction | England & Wales |
| Judgment Date | 06 July 1822 |
| Date | 06 July 1822 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 1055
HIGH COURT OF CHANCERY
S. C. 2 L. J. Ch. (N. S.), 129; see Squire v. Campbell, 1836, 1 My. & Cr., 481. Distinguished, Mitchell v. Steward, 1866, L. R. 1 Eq., 548; Western v. MacDermott, 1866, L. R. 2 Ch., 74; see Peek v. Matthews, 1867, L. R. 3 Eq., 518; Kilbey v. Haviland, 1871, 24 L. T. 355; German v. Chapman, 1877, 7 Ch. D., 278. Followed, Doherty v. Allman, 1878, 3 App. Cas., 730. Applied and explained, Sayers v. Collyer, 1883-84, 24 Ch. D., 183; 28 Ch. D., 103; see Mackenzie. v. Childers, 1889, 43 Ch. D., 276; Knight v. Simmonds [1896], 2 Ch., 298. Distinguished, Osborne v. Bradley, [1903], 2 Ch., 452.
[552] the duke of bedford v. the trustees of the british museum. July 6, 1822. i(The reporters are indebted for the statement of this case to the kindness of Mr. Jacob.) [S. C. 2 L. J. Ch. (N. S.), 129; see Squire v. CampMl, 1836, 1 My. & Or., 4X1. Distinguished, Mitchell v. Steward, 1866, L. R. 1 Eq., 548; Western v. MacDerniott, 1866, L. K. 2 Ch., 74; see Peek v. Matthews, 1867, L. R. 3 Eq., 518; KiWei/ v. Haoiland, 1871, 24 L. T. 355 ; German v. Chapman, 1877, 7 Ch. D., 278. Followed, Doherty v. AUnicm,, 1878, 3 App. Gas., 730. Applied and explained, Sai/urs v. (,'olli/ei; 1883-84, 24 Ch. D., 183; 28 Ch. D., 103; see Mach-nzif. v. t'/W??v ,~1889, 43 Ch. D., 276 ; Knight v. Simmowh [1896], 2 Ch., 298. Distinguished, Oxhorm v. Bnulli'i/, [1903], 2 Ch., 452.] Where land is conveyed in fee, by deed of feoffment, subject to a perpetual ground-rent, and the feoffee covenants for himself, his heirs and assigns, with the feoffor, the owner of adjoining lands, his heirs, executors, administrators, and assigns, not to use the land in a particular manner, with a view to the more ample enjoyment by the feoffor of such adjoining lands, and the subsequent acts of the feoff'or, or of those claiming under him, have so altered the character and condition of the adjoining lands that, with reference to the land conveyed, the restriction in the covenant ceases to be applicable according to the intent and spirit of the contract, a Court of Equity will not interpose to enforce the covenant, but will leave the parties to law. Whether upon such a covenant there could be any remedy at law against the assigns of the covenantor, qiuere. By a settlement, made in the year 1669, on the marriage of the Lady Rachel Vaughan with the Honourable William Russell, afterwards Lord Russell, a messuage called Southampton House, and the appurtenances, together with some fields adjoining, .situate at Bloomsbury in the parish of St. Giles, in the county of Middlesex, and then the property of Lady R. Vaughan, were conveyed to trustees, upon such trusts as she .alone should, in manner therein mentioned, appoint. By indenture of feoffment of the 19th of June 1675, made between the Honourable William Russell and Lady Rachel Vaughan, his wife, of the first part, the trustees of the settlement of the second part, and the Right Honourable Ralph Montagu of the third part, it was witnessed that, in consideration of £2600 to the said William Russell and his wife, paid by the said Ralph Montagu, and of the covenants thereinafter mentioned, on his part to be performed, and of 5s. paid to the trustees (which sums were acknowledged to have been received for the absolute purchase of the piece of ground thereinafter mentioned), they the said William Russell and his wife, and by their direction and appointment [553] the trustees, granted, bargained, sold, aliened, released, enfeoffed, and confirmed unto the said Ralph Montagu, his heirs and assigns, a piece of land lying in a field called Baber's Field, in St. (liles, containing seven acres and twenty-five perches, described in a map annexed, and abutting eastward in part upon the messuages lately erected by Mary Hudson, and in other part upon other part of Baber's Field, northwards on Baber's Field aforesaid, westward in part upon the messuage then in the occupation of John Morris, and in other part upon Baber's Field 1056 DUKE OF BEDFORD V. TRUSTEES OF BRITISH MUSEUM 2 MY. & K. BM. aforesaid, southward upon Great Russell Street in Bloomsbury aforesaid; and also the wall encompassing the said parcel of ground; and also five feet and four inches of ground in breadth, extending the whole front of the said ground abutting upon Great Russell Street, and lying without the south wall, to be pallisaded, and as a security for the said wall; and also a way and free passage for foot, horses, coaches, carts, and all manner of carriages in, by, through, and over the grounds of the said William Russell and Lady Rachel Vaughan, then used, or which thereafter should or might be used, in lieu of those that were then used for or as streets in the said parish unto the said piece of ground, or any part thereof, in case there should be any alteration thereof, and other ways belonging to the said premises, or then used with tho same; and alsa free liberty and authority to make or open two doors or passages out of and through the wall on the north part of the premises, and to continue the same; and also full power and free liberty to mako all such sewers, water-courses, sinks, gutters, drains, sewers, conveyances for bringing in of water, and other easements as should ba fit or necessary for the accommodation of the messuages and outbuildings intended to be built upon the said piece of land, under ground, and southwards unto the said places then used for streets, and unto and [554] into the common sewer belonging to the buildings in Bloomsbury, commonly called Southampton Buildings, and to continue the same, closing up the ground and making up the pavements that should be broken for doing the same; to hold the same to the usa of the said Ralph Montagu, and his heirs and assigns for ever, subject to a rent of £5 per annum to Lady R. Vaughan, her heirs and assigns, which he covenanted to pay, and for the recovery of which a power of distress was given. The deed then contained a covenant to levy a fine and covenants for title. In consideration of the premises, Ralph Montagu then covenanted with Lady R-Vaughan, her heirs, executors, administrators, and assigns, that in case he, his heirs or assigns, should erect any building upon the said ground, or any part thereof, he or they should erect and new-build upon the said piece of ground one fair and large mesiuage and dwelling-house, fit for him and his family to inhabit, composed of an uniform building, together with all convenient stables, coach-houses, and other out-offices suitable to the said mansion or dwelling-house; and, further, should also keep fenced in with a brick wall the residue of the said piece of ground, and should make thereout a convenient court yard, and on the back part thereof should leave space sufficient for convenient gardens and walks, and should not make any public or other way out of the said piece of ground unto the fields lying northwards of the same, save only two doors out of the said garden to be made for the accommodation of the inhabitants in the said chief mansion-house for walking into and taking the air in the said fields, nor should erect any public brewhouse on the said piece of ground, nor make any buildings on the said ground, save only convenient offices for the said chief messuage, and ornaments and conveniences for the [555] said garden, the walls of those to be of brick or stone, and not of timber; and further should pave, and make, repair, and amend the pavement from the outward wall of the said messuage to the middle of the street there, and should fix posts and pales in the street next to the said wall, to range even with the rest of the street; and should not make any watercourse, drain, or sewer out of the said piece of ground backwards northward unto the said field, nor erect any building on the outermost wall of the said ground next to the said field. He further covenanted with Lady R. Vaughan, her heirs and assigns, that if he, his heirs or assigns, or any of them, should at any time thereafter erect any buildings, of what nature soever, on the north end of the said piece of ground, and which should extend northward beyond the range and building of Southampton House, situate near thereunto, other than one or more summer house or houses, banqueting house or houses, for the accommodation of the garden to be made in the said ground, or what should be for the enlargement of the great mansion-house, or should make, or cause or permit to be made, any watercourse, drain, or sewer, out of the said ground, into the said fields backwards northward, or should build or make any public brewhouse upon the said piece of ground, then he, his heirs and assigns, should forfeit and pay to the said Lady R. Vaughan, her heirs and assigns, £3 per day so long as the said building or brew-house, watercourse, drain, or sewer should continue, and. until the said building or brewhouse should be taken down, and such watercourse, drain, or sewer should be stopped up, and the ground made in the same plight as it was in before the making. 1 MY. & K. 596. DUKE OF BEDFORD V. TRUSTEES OF BRITISH MUSEUM 1057 such watercourse, drain, or sewer...
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