The land had been conveyed in consideration of a rent charge and a covenant to build and repair buildings.
Held: A mortgagee of the land was not liable on the covenant either at law or in equity even though he had notice of it.
Brett LJ said that Tulk -v- Moxhay: ‘decided that an assignee taking land subject to a certain class of covenants is bound by such covenants if he has notice of them, and that the class of covenants comprehended within the rule is that covenants restricting the mode of using the land only will be enforced. It may be also, but it is not necessary to decide here, that all covenants also which impose such a burden on the land as can be enforced against the land would be enforced … It is said that if we decide for the defendants we shall have to overrule Cooke v. Chilcott, 3 Ch. D. 694. If that case was decided on the equitable doctrine of notice, I think we ought to overrule it.’
Cotton LJ said: ‘Let us consider the examples in which a court of equity has enforced covenants affecting land. We find that they have been invariably enforced if they have been restrictive, and that with the exception of the covenants in Cooke v. Chilcott 3 Ch. D. 694, only restrictive covenants have been enforced.’ and that Tulk v. Moxhay: ‘lays down the real principle that an equity attaches to the owner of the land
The covenant to repair can only be enforced by making the owner put his hand into his pocket, and there is nothing which would justify us in going that length.’
Cotton LJ, Brett LJ
(1881) 8 QBD 403, (1881-1882) 8 QBD 403, [1881] UKLawRpKQB 160
Commonlii
England and Wales
Cited by:
Cited – London and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
Lists of cited by and citing cases may be incomplete.
Land, Equity
Updated: 19 January 2022; Ref: scu.260255
