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On the 14th of December, in the same year, Lamb conveyed back to Cheeseman the forty-eight acre lot. On the 3d of January, 1842, Cheeseman conveyed to Lamb another part of the Swope farm in two lots. One was a lot of seven acres adjoining the creek, and north of and adjoining the twelve and a half acre lot; the other was a strip of one acre, leading from the seven acre lot eastwardly to the road, and including the land over which the right of way had before been granted. On the same day Cheeseman executed to Lamb a bond in the penalty of $5,000, secured by a mortgage on part of the Swope farm not conveyed. The conditions of the bond and mortgage (which were both in the same words), contained this recital: that Cheeseman, in consideration of $1,650, had, by deed of the same date, conveyed to Lamb a lot of seven acres, part of the Swope farm; that the principal value of said lot consisted in the valuable beds of marl upon it; that there were divers like beds of marl upon the residue of the Swope farm; that said sum was paid, not only as the consideration for said lot, but upon the express agreement between the parties that neither Cheeseman, his heirs or assigns, nor any other person holding said farm, should, within thirty years from the date, dig, sell, remove, or suffer to be dug, sold, or removed from off the said farm, any part or parcel of the marl thereon, except for the use of the farm, "so that the said marl, or any part thereof, should not be sold or otherwise brought into competition with the marl of the said James W. Lamb," and upon the further agreement that for any violation of said covenant by the said Cheeseman, his heirs, executors, administrators or assigns, or other persons holding said farm under him or them, said Cheeseman, his heirs, executors or administrators should pay to said Lamb, his heirs, executors, administrators or assigns, the sum of $500. The condition was, that if they did not so dig or sell, and if they paid up such penalties, the obligation and mortgage should be void.

On the 6th of September, 1842, Lamb conveyed back to Cheeseman the seven acre lot, except a triangular part containing about one tenth of an acre, retained to give access from the one acre strip (used as a way) to the twelve and a half acre lot, this being the means of communication from that lot to the Cross Keys road. Lamb conveyed the twelve and

a half acre lot, the one acre used for a way, and the tenth of an acre reserved from the seven acre lot, to the complainant Brewer, by two deeds, one dated March 3, 1847, the other dated January 3, 1848, the last deed conveyed the one acre used as a road, and the tenth of an acre reserved from the seven acre lot. And on the same day Lamb assigned to Brewer the bond and mortgage given to him by Cheeseman. Cheeseman, by four deeds made at different times, conveyed to the defendant, Marshall, the rest of the Swope farm not conveyed to Brewer.

Both the defendants have at different times dug, removed and sold from the seven acre tract and other parts of the Swope farm, marl by the ton and measured quantity, since 1842; and the defendant, Marshall, was continuing to do so until the injunction.

These facts appear by the bill and are admitted by the

answer.

The opinion of the Chancellor is reported in 3 C. E. Green, 338.

BROWNING, for appellant.

J. WILSON, for respondents.
BEASLEY, C. J.

The facts out of wlrich this controversy has arisen, so fully appear in the statement which prefaces this opinion, that I do not deem it necessary to repeat them in extenso. It will answer every present purpose to say that one George Cheeseman was originally the owner in fee of the several tracts of land now respectively owned by the appellant, Mr. Brewer, and by the respondent, Mr. Marshall; that on the 23d day of February, 1841, he conveyed to the grantor of the appellant the lands now held by the latter, and also by the same instrument another tract of twenty-eight acres, and that in this deed there was a covenant in the following words, viz:"Also the said George Cheeseman, his heirs or assigns, are not to sell any marl by the rood or quantity from off his premises adjoining the above property." The tract described in this covenant as that to which the restriction was to apply is now owned by the respondent, Mr.

Marshall, who, notwithstanding the covenant just quoted, has exercised and still claims the right to sell marl therefrom. Before proceeding to test the strength of this position it should be premised that this respondent is not in a situation to deny that, at the time he acquired his rights, he had notice of this covenant. The law conclusively charges him with such information, because the deed which contains this restrictive agreement constitutes one of the muniments of his own title. The covenant is contained in the conveyance of the forty-eight tract to the grantor of the appellant and that tract was re-conveyed by such grantor to Cheeseman, the original owner, who then conveyed it to the respondent, thus incorporating in the chain of the title of the latter the covenant in question. In this position of things the respondent is chargeable, by incontestable legal presumption, with full knowledge of the existence of the stipulation in question, for the rule upon that subject is settled by a long series of decisions, as will appear from the cases collected in the voluminous notes to the case of LeNeve v. Le Neve, 2 Lead. Cas. in Eq. 182. It is to be assumed, therefore, as an incontrovertible fact, that when the respondent took his conveyance he was aware that his grantor had covenanted, both for himself and his assigns, that no marl should be sold from off the premises so conveyed. This presumption obviously makes the attitude of the respondent an unfair one. He knew that Mr. Cheeseman's vendee, who is now represented by the appellant, had paid his money in purchase of this stipulation and in reliance on its honest performance, and consequently that it was the duty of Mr. Cheeseman, in the fair discharge of his obligation, not to sell this land free as to its uses. But the respondent stands upon his strict legal rights, and insists that the covenant in question is not either of a character to run with the title, nor to create an easement in the land, and that consequently, he takes such land, as the assignee of the covenantor, unbound by such obligation.

I think the Chancellor, in the opinion which he has sent up in this case, has clearly shown, that these premises, on which the defense has been rested, are well founded, for I quite agree that the covenant under consideration neither runs with the land, nor is it, in effect, the grant of an easement.

But the difficulty with me has been, whether granting these premises, the conclusion follows that the complainant is not entitled to relief in this court, the point is this: there is a class of cases in which equity will charge the conscience of an alienee of land with an agreement relating to such land, where clearly the agreement neither creates an easement' nor runs with the title. This rule has been too frequently acted upon and is too deeply seated in our legal system, to be passed by unnoticed or to be rejected as unsound. I regard it as a part of the law. Thus, if title deeds be deposited as a security for money, and a creditor, knowing these facts, takes a subsequent mortgage on the same property, he will be postponed to the equitable mortgage of the prior creditor, and a trust will be raised in him to the amount of such equitable incumbrance. Birch v. Ellames, 2 Anst. 427. So if lands are held in trust, or the owner of lands is under a contract to sell or lease them, and a subsequent purchaser has notice of such facts, he will, in equity, stand in the place of his grantor and be chargeable with the same duties and contracts. "In such cases," says Judge Story, "he will not be permitted to protect himself against such claims, but his own title will be postponed and made subservient to theirs. It would be gross injustice to allow him to defeat the just rights of others by his own iniquitous bargain. He becomes, by such conduct, particeps criminis with the fraudulent grantor." 1 Story's Eq. Jur., § 395. It will be observed that it is a feature common to all these instances, that the party in fault acquires the legal title in an unrestricted form, but in disregard of the known equitable rights of others, and that these same elements exist in the case now before this court. But there is also another clearly defined line of cases illustrative of the same rule. I mean that class of decisions which hold that an agreement between the owners of several parcels of lands, that the buildings to be erected thereon shall not be applied to certain specified uses, is obligatory. Such stipulations have been repeatedly held to be obligatory, not only upon such owners, but upon their alienees taking with notice. Whatman v. Gibson, 9 Sim. 196, was of this description. In that case the owner of a piece of ground, which was laid out in building lots, having sold some of them, he and the purchas

ers executed a deed, whereby it was agreed that it should be a condition of the sale of all the lots, that the several proprietors should observe all the stipulations of the deed, among which was one prohibiting the use of any building as a tavern. This restriction was declared to be binding, in equity, on a purchaser with notice, although he had not executed the deed, but claimed derivatively through a purchaser who had. This decision, Sir Edward Sugden observes, is fully warranted by the older cases: Vend. & Pur., 2 Vol. p. 185. And the same principle will be found exemplified in the following series of adjudications, which extend down almost to the present moment: Tulk v. Moxhay, 2 Phill. 774; Coles v. Sims, 5 De Gex M. & G. 1; Mann v. Stephens, 15 Sim. 3:6; Western v. Mac Dermot, Law Rep. 1 Eq. 499; S. C. Law Rep. 2 Ch. App. 72; Bristow v. Wood, 1 Coll. 480; Brouwer v. Jones, 23 Barb. 153; Coleman v. Coleman, 7 Harris, 100.

It will be found upon examination that these decisions proceed upon the principle of preventing a party having knowledge of the just rights of another, from defeating such rights, and not upon the idea that the engagements enforced create easements or are of a nature to run with the land. In some of the instances the language of the court is very clear on this point. Thus in Wilson v. Hart, Law Rep. 1 Ch. App. 463, which was a suit to compel the observance of a covenant not to use any building erected on a building plot as a beer shop, the defendant who was the assignee of the covenantor, was enjoined, although Sir G. J. Turner, L. J., in delivering the judgment, declared that, in his opinion, the covenant did not run with the land, that it did not purport to bind assigns, and that it seemed to be a covenant directed not against the use of the land, but against the personal use and enjoyment of the building to be erected upon the land.

Nor is this doctrine without illustration in our own courts. It was enforced in the case of Van Dorn v. Robinson, 1 C. E. Green, 256. This was a suit founded on a covenant in a conveyance, whereby the grantee agreed to re-convey to the grantor whenever he, the grantee, should quit the actual possession of the premises. The grantee conveyed to a stranger who took the title with constructive notice of the covenant. Chancellor Green maintained that this was a mere personal

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