together with all appurtenances thereto belonging together with land under and adjoining said house as now used with it," is a description which may include adjoining lands covered with buildings, as well as vacant land, the description including and carrying all land adjoining the dwelling house which was then used with that house. Hammond v. Abbott, 166 Mass. 517 (44 N. E. Rep. 620). A deed, conveying “a road and right of way over and across" land "to be forever appurtenant to " adjoining land of the grantee, and providing that neither party shall "nor shall his successors in interest, grant or give to any other person a right of way over said road," conveys only an easement for a right of way, and not a fee simple title. Peterson v. Machado, Cal. (43 Pac. Rep. 611). Where a contract of sale and the warranty deed executed pursuant thereof describes the land as "being lot No. 3, as designated in the plot of partition above mentioned, less a strip 25 feet wide on the north side of said lot No. 3, and adjoining the southerly line of the Chilhowee Land Company, transferred by deed made and executed the 19th day of March, 1890, to the said Chilhowee Land Company, which deed also dedicates to public use, for a street or avenue, an additional strip parallel with the adjoining said granted strip of 25 feet, leaving as the amount of land thereby conveyed, 95 18-100 acres," it is to be construed as a warranty as to the amount of land conveyed. Hall v. McCammon, Tenn. (37 S. W. Rep. 1026). For construction of particular deeds, see Mungen v. Swanson, 110 Ala. 414 (20 So. Rep. 88); Hall v. Sterling Iron & Railway Co., 148 N. Y. 432 (42 N. E. Rep. 1056).

Sec. 148. Recitals in deeds. Recitals in a deed under which one claims concerning incumbrances upon the property are notice to him of such incumbrances. Zear v. Boston

Safe-Dep. & T. Co., 2 Kan. App. 505 (43 Pac. Rep. 977) ; Reichart v. Neuser, 93 Wis. 513 (67 N. W. Rep. 939). Recitals in a deed as to the relationship of the parties thereto are binding on persons claiming under it. Despain v. Wagner, 163 Ill. 598 (45 N. E. Rep. 129). Recitals in deeds do not bind strangers holding adversely and claiming title by adverse possession. Florida So. Ry. Co. v. Burt, 36 Fla. 497 (18 So. Rep. 581).

Sec. 149. Restrictions upon alienation. In construing Ind. Rev. Stat. 1894, § 8382, providing that "the absolute power of aliening lands shall not be suspended by any limitation or condition whatever, contained in any grant, conveyance or devise, for a longer period than during the existence of a life or any number of lives in being at the creation of the estate conveyed, granted, devised and therein specified," it is held that an absolute restriction upon the alienation of a devise in fee for a definite period of time not depending upon the duration of a life or lives in being at the time of the creation of the estate, is void. Fowler v. Duhme, 143 Ind. 248 (42 N. E. Rep. 623). A subsequent agreement by one to whom the legal title to land has been conveyed, with a third person, who furnished the consideration for such conveyance, that he will not convey the land without the latter's consent, is void, under Cal. Civ. Code, § 711, providing that "conditions restraining alienation, when repugnant to the interest created, are void." Prey v. Stanley, 110 Cal. 423 (42 Pac. Rep. 908).

Sec. 150. Restriction as to use of property. A condition that the premises are to be used for "dwelling house purposes only" is violated by the use of a portion thereof for a meat and vegetable store. One defending a violation of a condition restricting the use of the premises on the ground that no damage is done must show such to be the fact "beyond possibility of doubt." Cornish v. Weissman, N. J. Eq.

(35 Atl. Rep. 408). Where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and improvement of the property, by which it is divided into streets, avenues and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction, to be inserted in each deed to a purchaser, and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject to and to have the benefit thereof, and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan, one purchaser and his assigns may enforce the covenant against any other purchaser and his

assigns, if he has bought with knowledge of the scheme, and the covenant has been part of the subject matter of his purhase, but this right is purely an equitable one and can only te enforced as such. Trout v. Lucas, 54 N. J. Eq. 861 (35 Atl. Rep. 153).

Sec. 151. Restrictions against using property for saloon purposes. A grantor who has conveyed a lot with the restriction that "no store or saloon shall be erected or placed" thereon, may enjoin a violation of this restriction although he has conveyed other lots in the vicinity without any such restriction, and leased a store opposite for a saloon, where it appears that the particular restriction was placed in the deed for the protection of his store and residence in the immediate vicinity. Reilly v. Otto, 108 Mich. 330 (66 N. W. Rep. 228). Where a vendee purchases property without any restrictions as to its use being made, commences the erection of buildings thereon and subsequently accepts a deed which prohibits the sale of liquor upon the premises, relying upon the representations of the vendor's agent that the condition will not be enforced against him, the condition will not be enforced against his tenant. Woodhaven fun. L. Co. v. Solly, 148 N. Y. 42 (42 N. E. Rep. 404). A provision in a deed that "the premises hereby conveyed are not to be used for a saloon or dramshop purposes" creates a negative covenant, not a condition, and such a covenant is not void as being in restraint of trade; nor does a grantor acquiesce in the use of premises for saloon purposes in violation of such restriction, so as to lose his right to enjoin the same, by entering such saloon and taking a drink therein or by remaining silent while other parties maintain an action to enjoin the violation of the covenant. A breach of such covenant may be enjoined, and it is no defense to such action to show that the character of the neighborhood where the property is situated has so changed as to defeat the purpose of the condition, unless it be shown that the change in circumstances has resulted from some acts of the grantor in the deed, or those holding under him, or that the enforcement of the covenant will work a serious injury to the property or property rights of the grantee in the deed, or the party against whom it is sought to

be enforced. Star Brewery Co. v. Primas, 163 Ill. 652 (45 N. E. Rep. 145). The court say: "It is true, as a general thing, where the acts of the grantor, or those deriving their title under him, have altered the character and conditions of the adjoining lands so as to make the restriction of the covenant inapplicable according to the intent and spirit of the contract, that courts of equity refuse to interfere by injunction to prevent a breach of the covenant, and leave the parties to their remedy at law. Duke of Bedford v. Trustees of British Museum, 2 Mylne & K. 552; Page v. Murray, 46 N. J. Eq. 325 (19 Atl. Rep. 11); Duncan v. Railway Co., 85 Ky. 525 (4 S. W. Rep. 228); Peek v. Matthews, L. R. 3 Eq. 515; 'Roper v. Williams, 1 Turn. & R. 18; 2 High. Inj. (3d Ed.), § 1158; Sayers v. Collyer, 28 Ch. Div. 103. But in the present case the new saloons were not upon the appellee's land; nor was appellee, nor any one holding under him, responsible for their existence. The change produced by opening the new saloons was not his act, nor the act of any party claiming through or under him. Where the change in the condition of the surrounding property is such that a performance of the covenant in the deed would injure the grantee's property or make it yield less profit, or make it incapable of yielding any profit, the covenant will not be enforced, as being unreasonable and oppressive. Where, for instance, the covenant required that only dwelling houses, or dwelling houses of a certain price, should be erected, and that the premises should not be used for trade or business, and the neighborhood had so changed that only dwelling houses of a cheaper kind, or houses for trade or business, would be profitable, the court refused to enforce by injunction a performance of the covenant. Page v. Murray, 46 N. J. Eq. 325 (19 Atl. Rep. 11); Jackson v. Stevenson, 156 Mass. 496 (31 N. E. Rep. 691; 32 Am. St. Rep. 476); Trustees of Columbia College v. Thatcher, 87 N. Y. 311 (41 Am. Rep. 365); Amerman v. Deane, 132 N. Y. 355 (30 N. E. Rep. 741; 28 Am. St. Rep. 584); 2 Devl. Deeds, § 943."

Sec. 152. Restrictions as to the erection of buildings. A covenant that all buildings shall be set back from a certain line a given number of feet is not violated by the extension of an open porch within the prohibited distance.

Hawes v. Favor, 161 Ill. 440 (43 N. E. Rep. 1076). A forfeiture cannot be enforced for a violation of a condition against the erection of buildings on account of improvements made in pursuance of a municipal ordinance. Fidelity Ins. T. & S. D. Co. v. Fridenberg, 175 Pa. St. 500 (34 Atl. Rep. 848; 52 Am. St. Rep. 851). An earth filling is a "structure within the meaning of a covenant never to erect any "structure or building." Clement's Adm'rs v. Putnam, 68 Vt. 285 (35 Atl. Rep. 181). Conditions in a deed of a part of a tract of land as to the character of improvements to be made by the grantee may be enforced by a subsequent purchaser from the same grantor of another part of the tract. Roberts v. Porter,

Ky. (37 S. W. Rep. 485). Where the owner of land platted into lots has not by his plat or conveyances of lots established a definite and uniform plan as to building restrictions imposed upon purchasers, some receiving their conveyances without any such restrictions, some with one kind of restrictions and some with another, the purchaser of one lot cannot enforce the restrictions imposed on the purchaser of another lot. Clark v. McGee, 159 Ill. 518 (42 N. E. Rep. 965). The right of an adjoining lot owner to enforce a condition against the erection of buildings of a certain character may be waived by his erecting structures upon his lot of such a character as to render a compliance with the condition useless. Landell v. Hamilton, 175 Pa. St. 327 (34 Atl. Rep. 663; 34 L. R. A. 227) ; Landell v. Hamilton, 177 Pa. St. 23 (35 Atl. Rep. 242). The right to enforce a forfeiture for a breach of condition against the erection of buildings may be lost by laches. Fidelity Ins. T. & S. D. Co. v. Fridenberg, 175 Pa. 500 (34 Atl. Rep. 848; 52 Am. St. Rep. 851). And so may the right to have a mandatory injunction for the removal of buildings erected in violation of a condition. Trout v. Lucas, 54 N. J. Eq. 361 (35 Atl. Rep. 153). For construction of particular restrictions as to character of buildings to be erected, see Meigs v. Milligan, 177 Pa. 66 (35 Atl. Rep. 600); Roberts v. Porter, Ky. (37 S. W. Rep. 485); Equitable Life Assur. Soc. v. Brennan, 148 N. Y. 661 (43 N. E. Rep. 173).