Tulk v Moxhay
| Jurisdiction | England & Wales |
| Judgment Date | 22 December 1848 |
| Date | 22 December 1848 |
| Court | High Court of Chancery |
English Reports Citation: 47 E.R. 1345
HIGH COURT OF CHANCERY
S. C. 2 Ph. 774; 41 E. R. 1143 (with note).
1 H. a TW. 105. TULK V. MOXHAY 1345 [105] tulk v. moxhay. Dec. 21, 22,1848. [S. C. 2 Ph. 774; 41 E. R. 1143 (with note).] A purchaser of land, which was conveyed to him in fee-simple, covenanted for himself, his heirs, executors, administrators, and assigns, with the vendor, his heirs, executors, and administrators, that the land should be used and kept in ornamental repair as a pleasure garden, for the benefit of the occupiers of houses in the neighbourhood which belonged to the vendor. Held, that the vendor was entitled to an injunction as against the assigns of the purchaser, to restrain them from building upon the land, although the character of the neighbourhood had been greatly changed by the increase of building there, and its privacy as a place of residence had been very much diminished by the opening of thoroughfares, and the occupiers of the vendor's houses had ceased to use the garden, or to pay for the privilege of doing so; and although the vendor had not obtained any decision, in a Court of law, whether the covenant did or did not run with the land, so as to be binding on the parties who claimed under the original purchaser. The jurisdiction of this Court, in such cases, is not fettered by the question whether the covenant does or does not run with the land. This was a motion by way of appeal from the Master of the Rolls to dissolve an injunction. In the month of July 1808, the Plaintiff was seised in fee-simple not only of the piece of ground which formed the open space or garden in Leicester Square, but also of several houses situated in that square. By an indenture of release, dated the 15th of July 1808, and made between the Plaintiff, of the one part, and Charles Elms, of the other part, after reciting that the Plaintiff was seised of that piece of land in fee-simple, and had contracted to sell it to Elms, but not reciting that that contract was made subject to any condition, in consideration of 210, the Plaintiff conveyed to Elms, in fee-simple, "all that piece or parcel of land, commonly called Leicester Square Garden or pleasure-ground, with the equestrian statue then standing in the centre thereof, and the iron railings and stonework round the garden, and all easements or ways, &c., to hold the same to Elms, his heirs and assigns for ever." And in that indenture there was contained a, covenant by Elms, in the words following :-" And the said Charles Elms, for himself, his heirs, executors, administrators, and assigns, doth covenant, promise, and agree to and with the said Charles Augustus Tulk, his heirs, executors, and administrators, in manner following-that is to say, that he, the said Charles Elms, his heirs and assigns, shall and will, from time to time, and at all times for ever hereafter, at his and their own proper costs and charges, keep and main-[106]-tain the said piece or parcel of ground and square garden, and the iron railing round the same, in its present form, and in sufficient and proper repair as a square garden arid pleasure-ground, in an open state, uncovered with any buildings, in a neat and ornamental order; and shall not nor will take down, nor permit or suffer to be taken down or defaced, at any time or times hereafter, the equestrian statue now standing or being in the centre of the said square garden, but shall and will continue and keep the same in its present situation, as it now is; and also, that it shall be lawful to and for the inhabitants of Leicester Square aforesaid, tenants of the said Charles Augustus Tulk, and of John Augustus Tulk, Esq., his father, their heirs and assigns, as well as the said Charles Augustus Tulk and John Augustus Tulk, their heirs and assigns, on payment of a reasonable rent for the same, to have keys (at their own expense), and the privilege of admission therewith annually, at any time or times, into the said square garden and pleasure-ground." The bill then stated, that the said piece of garden ground had continued in an .open state, and uncovered with any buildings; and that the same had been and continued a garden or pleasure-ground, and planted with trees and shrubs, so as to be an ornament to the square, and a benefit to the inhabitants of the houses there; that the Defendant had become the owner of that piece of ground by virtue of a C. xxvn.-43 1346 TULK V. MOXHAY 1 H. &TW.107. title derived from Elms, and that lie had formed a plan, or scheme for erecting certain lines of shops and buildings thereon; but that the Plaintiff objected to such scheme, as being contrary to the aforesaid covenant, and injurious to the Plaintiff's houses in the square; that the Defendant had, nevertheless, proceeded to cut down several of the trees and shrubs, and had pulled down part of the iron railing, and had erected a hoarding or boards across the said piece of ground. [107] The bill charged, that, at the time when the Defendant purchased the piece. of ground, and also when he took possession thereof, and also when he committed the acts complained of, he had notice of the covenant. The bill prayed, that the Defendant, and his agents and workmen, might be restrained from cutting down the trees and shrubs on the said piece of garden ground, and from pulling down or removing the iron railing round the same; and from setting up, or erecting, or continuing on the said piece of garden ground, any house, shop, or other building, or any scaffolding, hoarding, or boards, for the purpose of building; and from taking down, or permitting or suffering to be taken down or defaced, the said equestrian statue in the centre of the said square garden, or from doing or committing, or permitting or suffering to be done or committed, any waste, spoil, destruction, or nuisance to be in or upon the said piece of garden ground. An ex parte injunction was obtained from the Master of the Eolls, and the Defendant then put in his answer. He deduced his title as follows :-Charles Elms died in 1822, and on his death Harriet Filewood came into possession of the piece of land as devisee under his will. She died in 1834, having devised this property to Robert Barron, who sold it in the same year to John Inderwick, for 400; and, in 1839, Mr. Hyams entered into an agreement to purchase it for 451. The Defendant became entitled to the benefit of that agreement; but no conveyance of it was executed to him until 1848. The Defendant, by his answer, stated, that the inhabitants of Leicester Square and of the Plaintiff's houses had entirely ceased to use this piece of ground as a garden and pleasure-ground, or to pay any sum for the privilege of admission ; and that, for many years before the Defendant [108] purchased it, it had been in a ruinous condition, and not in an ornamental state, but altogether out of repair; that Tulk never took any steps to enforce the covenant, or to have the site of the ground improved ; that the square was no longer a quiet place of residence, but that a thoroughfare had lately been made through it from Long Acre to Piccadilly; that he proposed to open two footpaths diagonally across the square, putting up gates and fences; that he had not yet fixed on any plan for building on it; or as to the ultimate use he should make of it; but he reserved by his answer the right to make all such use of the land as he might thereafter think fit, and lawfully could do; and he also submitted to the Court, that the covenant did not run with the land, and did not bind him as assignee. The Defendant applied to the Master of the Eolls to dissolve the injunction, which his Lordship refused to do, and merely made some variations in the order. The effect of the injunction, as varied, was to restrain the Defendant, his workmen, &c., from converting or using the piece of ground and square garden in the bill mentioned, and the iron railing round the same, to or for any other purpose than as a square garden and pleasure-ground, in an open state, uncovered with buildings, until the hearing of this cause, or the further order of this Court. The motion to dissolve the injunction was now renewed before the Lord Chancellor. Mr. R. Palmer, in support of the application. The Defendant rests his case partly on the change in the character of the property since the conveyance to Elms, and partly on the ground that the covenant did not run with the land so as to be binding upon the Defendant; [109] or that, at all events, this Court ought not to interfere by injunction until the Plaintiff has established his right at law. The parties to the sale in 1808 intended a certain mutuality; certain benefits were to be received from the payment of annual sums for the privilege of using the garden; and as that consideration has entirely failed, and that part of the contract is, in fact, abandoned by the inhabitants, it would be inequitable to compel the Defendant any longer to perform the other part of it. And the advantages of the square as a place 1H.&TW. 110. TULK V. MOXHAY 1347" of residence are so changed by circumstances, that such a piece of open ground is of little use : The Duke of Bedford v. The Trustees of the British Museum (2 My. & K. 552 ;. Sugden's Vend. & Purch. Appendix, 1113, llth edit.). But the chief question is, whether the covenant of Elms is binding at law upon the Defendant; and if not, whether the Defendant will be bound by it in equity. The land might, no doubt, have been secured for the use of the occupiers of the houses in the neighbourhood, if such had been the contract between the parties. Mr. Tulk might, If he had thought it necessary, have employed the intervention of trustees, or created a term of years, or conveyed a fee-simple conditional, reserving a right of re-entry, or have secured the same object by other legal means. But he did not do so. The covenant was entered into with him, his heirs, executors, and administrators, and is...
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