Tulk v.

Moxhay, Court of Chancery, England (1848)

Author: Bram

Parties: PL original landowner; DF is the grantee after variable conveyances.

Cause of action/remedy sought: The following is an equitable action for an injunction. 

Relief sought is to enjoin DF from building on the property which he conveyed 40 years ago.

Procedural History: Master of the rolls denied motion.  This court also denies the motion
with costs.

Facts: PL conveyed land by deed to grantee, with the provision that the land be used for a
garden and pleasure ground (for a reasonable fee).  After several mesne conveyances, land
came by deed (bargain and sale) to DF, who took with knowledge of the provision, but the
provision was not in the deed itself. 

Issue(s): Under English property law, does a covenant that ran with the land to the original
grantee and then transferred through variable conveyances to a successive grantee remain
intact, when the one who took with notice of the original covenant, built on the said land?

Holding: No.  This particular covenant did not run with the land, and thus there is no way to
enforce the original provision in the deed.  A promise to maintain a privately-owned park in
an open state, uncovered by buildings, was enforceable in equity against a successor-even
though the promise could not have been enforced as a real covenant.

Court's Rationale/Reasoning:  An equitable servitude, enforceable by an injunction in this

case, is a covenant respecting the use of land enforceable against successor owners or
possessors, regardless of its enforceability at law.  Equity requires that the parties intend the
promise to run, that a subsequent purchaser have actual or constructive notice of the
covenant, and that the covenant touch and concern the land.  Horizontal or vertical privity
are not essential in equity for the burden to run.  The benefit runs to all assignees, and
possibly to adverse possessors. (this reasoning is taken from the book)

Rule: The court has jurisdiction to enforce a K between the owner of land and his neighbor
purchasing part of it, that the latter shall either use or abstain from using the land purchased
in a particular way.

Did court avoid issues?: No.

Dicta: No.