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1 N. Y. 564. Both of these cases are cited with appar- who put it or suffered it to be placed upon the land, ent approval by the court in Ford v. Cobb. In Godard believing that he had fully protected himself by his v. Gould the plaintiff had sold certain machinery to be agreement with the owner of the land. Of course the put up in a paper mill, reserving the title until the annexation must be such that it is possible for the machinery should be paid for. The purchaser placed property to be regarded as a chattel. If it is so atit in the mill in such a manner that it would have tached to the land that it is necessarily a part of the been a part of the realty but for the agreement that realty, no agreement can make it personalty. The the title should not pass. The court held that an in- true test, there being an intention that it should renocent purchaser, without notice of the mill property, tain its original character, is whether it can be rewhose deed purported to convey all the machinery, ! moved without material injury to itself and to the took subject to the rights of the vendor of the ma- | freebold. The doctrine is well stated in Sword v. Low, chivery, and the court sustained an action for the con- | 13 N. E. Rep. 826: “There seems to be a great unanimversion of such machinery brought by such vendority in the authorities that things personal in their against the purchaser of the realty, who refused to nature may retain their character of personalty by allow the former to take away the machinery, the the express agreement of the parties, although atpurchase price thereof not having been paid. To samo tached to the realty in snch manner as that, without effect is Dame v. Dame, 38 N. H. 429; S. C., 75 Am. such agreement they would lose that character, proDec. 195; Russell v. Richards, 1 Fairf. 429. See Rus-vided they are so attached that they may be removed sell v. Richards, 10 Me. 4:29; 11 id. 371; Ilillborne v. without material injury of the article itself or of the Brown, 12 id. 162; Tapley v. Smith, 18 id. 12; Bewick freehold. It is not held that parties may by contract v. Fletcher, 41 Mich. 6:25; 8. C., 3:2 Am. Rep. 170. The make property real or personal at will, but that when language in Tift v. Horton, 53 N. Y. 377, is broad an article personal in its nature is so attached to the enough to lead to the same conclusion. “Had the realty that it can be removed without material injury mortgagees taken their mortgage upon the lands after to it or to the realty, the intention with which it is the boilers and engine had been placed thereon under attached will govern; and if there is an express agreethis agreement, they would have had no right to pre mnent that it shall remain personal property, or it vent the removal of them by the plaintiffs, on the hap from the circumstances attending it is evident or inay pening of the contingencies contemplated by it. The be presumed that such was the intention of the parrights of a subsequent mortgagee are no greater than ties, it will be held to have retained its personal char. those of a subsequent grantee, and he, it is held, can acter.” What is evidence of this intention? The not claim the chattels thus annexed, and must seek concluding portion of the opinion just quoted ex. his remedy for their removal by virtue of such an presses what is undoubtedly the rule, that no express agreement, upon the covenants in his conveyance of understanding is necessary to preserve the original the land."

character of the chattel. The question is one of iuMaine seems inclined to depart from the doctrine tention. Taking a chattel mortgage on the property laid down iu Russell v. Richards and subsequent cases. has been held to be sufficient evidence of an intention In Fifield v. Me. Cent. R. R. Co., 62 Me. 80, the court to have the property remain personalty. Ford v. say: “ The case of Russell v. Richards does not accord Cobb, 20 N. Y. 344; Eaves v. Estes, 10 Kang. 314; with the adjudged cases in Massachusetts and New Sword v. Low, 13 N. E. Rep. 826. In this last case tho Hampshire in this respect, and the general course of court seems to have considered this as sound law, decision is against it."

although it stated that there was some variance Some of the authorities hold that the chattel bé among the authorities on the point. The writer fails comes a fixture even as to one who is not a purchaser | to find any such variance, and on priucip ese defor value without notice. It has been decided that a cisions are unquestionably sound. Whether the mortprior mortgagee of the land, who did not lend his gage is executed before or after the chattel has been money on the strength of the chattel being a fixture, | athixed to the realty can make no difference, provided but who took his mortgage before the chattel was at. it was the intention of the parties before it was so antached to the land, can claim the same as against the nexed that it should remain personal property. person who sold the chattel with the understanding

GUY C. H. CORLISS. that he was to retain the title to or a lien upon the Grand Forks, Dakota. same for the purchase price. Burk v. Hollis, 98 Mass. 55; Copeland v. Richardson, 6 Gray, 5:36; Frankland v. Moulton, 5 Wis. 1; Hunt v. Bay State Iron Co., 97 | NEGOTIABLE INSTRUMENTS - GUARANMass. 299. The court in Brennan v. Whitaker, ex

TORS-NOTICE. pressly declined to decide whether these cases were sound, and the tenor of the opinion is certainly

SUPREME COURT OF MICHIGAN, JUNE 8, 1888. against them. Unless they are founded upon the prin. ciple that the chattels were so annexed to the land that they could not be removed without material in

ROBERTS V. HAWKINS. jury either to the land or to the chattel, they have In a suit against the guarantor of payment of a promissory nothing to stand upon. The contrary was held in Tift note before delivery, it is no defense that no notice of its v. Horton; Miller v. Wilson (Iowa), 33 N. W. Rep. 128, non-payment at maturity was given the guarantor by the and in Tibbets v. Moore, 23 Cal. 208; First Nat. Bk. v. holder, within a reasonable time, nor that no steps were Elmore (Iowa), 3 N. W. Rep. 547. If the chattel be taken by the holder to enforce payment from the maker, comes a fixture in spite of the agreement to the con nor that at the maturity of the note, and for some time trary, so that a prior mortgagee of the land can claim thereafter, the maker was solvent; but afterward, and a superior lien on it, then the agreement is not effec before suit against the guarantor, became insolvent. tual to preserve the original character of the property as personalty, eveu as to the owner of the land, who

Norris & Norris, for appellant. has so expressly agreed. There is no escape from this

J. C. Fitz Gerald and Charles Chandler, for appellee. conclusion. The prior mortgagee can claim no greater right than the owner, as he has not been misled to ! LONG, J. January 12, 1884, one Lyman D. Follett his prejudice, but on the contrary will receive addi- | made his promissory note as follows: “ $1,000.00. tional security without his request or intervention, | Grand Rapids, Mich., January 12, 1884. One year after and at the expense of the former owner of the chattel | date I promise to pay to the order of Helen M. Rob

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erts one thousand dollars, with interest at eight per declaration was sufficient in the first two counts to alcent per annum. Value received. Lyman D. Follett."

alue received. Lyman D. Follett." | low a recovery thereunder. And defendant signed an indorsement on the back | The obief error complained of is the exclusion of the thereof as follows: "For value received, I bereby entire defense, and the direction of a verdict for plain. guaranty the payment of the within note. L. E. tiff. On the trial the plaintiff proved by a witness that Hawkins." On the delivery of tbis note to the plain. | the application for the loan, the loaning of the money, tiff, she paid Follett $1,000. January 8, 1885, seven the giving of the note and guaranty, and after read. days before this note became due, Follett paid one ) ing the note and guarantyin evidence, rested. year's interest; and neither at that time nor at the The defendaut was then called and sworn as a witmaturity of the pote, was the same presented to Follness in his own behalf, and was asked by his counsel : lett or defendant for payment. No notice of payment Question. When that vote became due, in January,' was given defendant then or at any time prior to June 1885-January 15—was any notice given you of the fact 8, 1887. January 15, 1886, Follett paid the interest for that it remained unpaid ?" To this question counsel the next year, and January 17, 1887, for the year fol for plaintiff objected, that the same was irrelevant and lowing.

immaterial, that the defeudant was not an indorser About June 8, 1887, the note being then two years nor guarautor of collection, but of payment of the and five montbs overdue, it was first presented to de | note. Counsel for the defendant then offered to show fendant, and payment demanded and refused. Au by the witness that he had no notice of the non-paygust 13 this suit was brought. On the trial, plaintiff, ment of the note prior to June 8, 1887; that he was an having proved the pote and guaranty, and its non- | accommodation guarantor without security ; that at payment, rested. Defendant then sought to make his or near the maturity of the note be inquired of the defense, as pleaded, and offered to show (1) that he maker, and was informed that it was paid; that at the was an accommodation guarantor, without cons r, without considera- | time the maker of tl

the note was solvent, and for some tion or security; (2) that at or about the maturity of considerable time thereafter-probably a year and the note, he inquired of the maker of the note if it that the defendant could, if he had any knowledge of was paid, and was told it was; (3) that neither at the its non-payment, have secured himself, or procured maturity of the note, nor at any subsequent time prior the latter to pay it; that when the defendant learned to June 8, 1887, was any notice of the non-payment of of the non-payment of the note the maker was insolthis note given to defendant, nor any demand made vent, and out of the State, and no security could have on him for the payment thereof; (4) that at the ma been obtained by the defendaut. The counsel then turity of this note, and for some considerable time saying "that this of course is the line of defense thereafter-at least a year-Follett, the maker of the marked out by the notice in the pleadings. It is all note, was solvent, and had property out of which de. covered by my brother's argument, and if we had no fendant could have procured him to pay the note or right to show that defense, then of course there reobtained security ; (5) that when defendant, on June mained nothing but for the court to direct a verdict 8, 1887, learned of the non-payment of this note, the | for the amount of the note, and interest." The court maker was insolvent, out of the jurisdiction, and that sustained the objection, and directed a verdict for he could then obtain no security or payment. The plaintiff. In considering this case the defendant's offer court direoted a general verdict for plaintiff on all the to prove this state of facts must be taken as true. In. counts of the declaration,

surance Co. y. Nlanufacturing Co., 31 Mich. 356. UnJudgment being entered on the verdict in favor of der this offer by the defendant the issue is made, is a plaintiff for the amount of the note, and interest, de person, not being a party to a promissory note, who at fendant brings the case into this court by writ of er- | its date and before delivery, and for the purpose of ror. The declaration contains three counts. The first having a loan made upon the strength of his guaranty, alleges tbe guaranty, demand of the maker at matur guarantees the payment of such note, liable thereon in ity, non-payment, and notice of said demand and non- | case the note is not paid at maturity, without notice payment by defendaut at maturity. The second al- | of non-payment having been given to him by the leges the guaranty, the refusal by maker to pay at | holder of the maturity of the note, or within a reason. maturity, and notice to defendant, at maturity, of able time thereafter, or that in case notice is not given maker's refusal. The third is the common counts in and no proceediugs taken to collect the note from the assumpsit, with copy of note annexed, and an alleged maker, and the maker of the note at the maturity indorsement on back of L. E. Hawkins, without any 1 thereof was solvent, and subsequently, and before suit guaranty over it. The plea is the general issue, with is brought on the guaranty, becomes insolvent, can potice of the defeuse of release by plaintiff, failure to such guarantor, when such action is brought against give notice of non-payment to defendant, and the coll him, set up such insolvency as a defense? The defense sequent damage and loss to him thereby.

being based on plaintiff's laches in not giving notice to It is claimed that the court erred in receiving the defendant of the non-payment of the note at maturnote and guaranty in evidence under the third countity, and the consequent damage to defendant thereby. in plaintiff's declaration for the reason that the note the correctness of the court's ruling depends on and guaranty offered were not the note and guaranty set whether or not there rested on the plaintiff the duty forth in that count; that the contract set out in to give such notice under any circumstances. The deplaintiff's third count was that defendant had indorsed fendant claims that his liability existed only on the his name in blank on the back of the note, pot payable happening of a contingency and the performance of a to his order; and that this would make him a maker condition; that whether or not that contingency hapof the note, and liable as such, while the note offered pened, or condition was performed, was matter pecuhad a guaranty of payment indorsed thereon. De- liarly within the kiowledge of the plaintiff, and not fendant olaimed that this was a variance, and that the | within his own; and that if plaintiff intended to assert court should have excluded the guaranty under the the performance of the condition, or the bappening of third count, and confined the verdict to a recovery

the contingency, wbereby alone defendant was to beunder the first two counts. As we view the case how come liable, it was her duty to do so within a reasonever this objection has no force. The plaintiff being able time, and in any event, before the maker of the entitled to recover under the first and second counts note became insolvent and a fugitive; that her negof the declaration, the defendant was not prejudiced in lect to do so, and the damage to him thereby, has rethe course taken by the court in not withdrawing all leased him from the obligation of his conditional conconsideration of the case under the third count. The tract. The position however of a guarantor of pay.

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ment as between him and the maker of the pote is that much good reason. Bellous v. Lovell, 5 Pick. 310;
of a surety. It is a common-law contract, and not a Davis v. Huggins, 3 N. H. 231; Page v. Webster, 15 Me.
contract known to the law-merchant. It 18 au abso- 249; Dennis v. Rider, 2 McLean, 451.
lute promise to pay if the maker does not pay, and the lu Train v. Jones, 11 Vt. 446, it is said: “An abso-
right of action accrues against tne guarantor at the luto guarauty that the debt of a third person shall be
moment the maker fails to pay. The guarantor would paid, or that he will pay it, imposes the same obliga-
not be discharged by any neglect or even refusal on tion upon the guarantor. In either case it is an abso-
the part of the holder of the note to prosecute the lute guaranty of the sum stipulated; and the creditor
principal, even if the maker was solvent at the matur is not bound to use diligence or to give reasonable 10-
ity of the note. aud subsequently became insolvent; tice of non-payment." Noyes v. Nichols, 28 Vt. 174.
and the fact that no notice of non-payment was given lu Bloom v. Warder, 13 Neb. 476, which was an ac-
the guarantor at the maturity of the note, or at any tion against the guarantors of payment of a promis-
time before bringing suit, would not affect the rights sory note, the court says: “This is an absolute con-
of the holder of the note against the guarantor. The tract for a lawful consideration, that the money ex-
guarantor's remedy was to have paid the note and pressed iu the note shall be paid at maturity thereof,
taken it up, and himself proceeded against the maker. at all events; and depeuds in no degree upon a de-
A guaranty is held to be a contract by wbich one per- | maud of payment of the maker of the note, or any
son is bound to another for the due fulfillment of a diligeuce on the part of the holder. Mere passiveness
promise or evgagement of a third party. 2 Pars. Cont. on the part of the holder will not release the guaran-
5:30. The contract or undertaking of a surety is a con- tor, even if the maker of the note was solvent at its
tract by one person to be answerable for the payment | maturity and thereafter became insolvent. Breed v.
of some debt, or the performance of some act or duty, Hillhouse, 7 Comu. 528; Bank v. Hopson, 53 id. 454;
in case of the failure of another person who is himself Foster v. Tolleson, 13 Rich. Law, 53; Machine Co. v.
primarily responsible for the payment of such debt or Jones, 61 Mo. 409; Barker v. Scudder, 56 id. 276; Nor-
the performance of the act or duty. 3 Add. Cont., ton v. Eastman, 4 Greenl. 521; Brown v. Curtiss, 2N.Y.
S1111; 3 Kent Com. 121; Wright v. Simpson, 6 Ves. | 225; Allen v. Rightinere, 20 Johus. 365; Bank v. Sin-
734.

clair, 60 N. H. 100; Guge v. Bank, 79 Ill. 62; Hunger-
In the case of Pain v. Packard, 13 Johns. 174 (de. ford v. O'Brien (Miun.), 34 N. W. Rep. 161.
cided in 1816), it was held that if the surety call upon It follows, that this being an absolute undertaking
the creditor to collect the debt of the principal, and on the part of the defendant as guarantor to pay the
he disregarded that request, and thereby the surety is amount of this note at maturity in the event of the
injured, as by the subsequent insolvency of the priu- default of payment by the principal, the guarantor
cipal, the surety was thereby discharged. A directly could not demand any diligence on the part of the
contrary decision was given by Chancellor Kent, upon holder of the note to collect the same from the priu-
argument and full cousideration, the following year. cipal. It was his duty to perform his contract that is,
King v. Baldwin, 2 Johns. Ch. 554. Two years later to pay the note upou default of the principal; and it is
the last decision was reversed by the Court of Errors no auswer for him to say that the principal was sol-
by the casting vote of the presiding officer, a layman, vent at the maturity of the note, and that the same
and against the opinion of the majority of the judges. could then have been collected of him by the holder,
King v. Baldwin, 17 Johns. 384.

and that he has since become insolvent. If he wished In the case of Brown v. Curtiss, 2N. Y. 228 (decided to protect himself against loss, he should hare kept in 1849), the action was brought against the guarantor his engagement with the holder of the pote, paid it of a promissory note. On the trial it was admitted upon default of the principal, taken up the note, and that there had been no demand of the maker, nor any himself prosecuted the party for whose faithful pernotice of non-payment, and that the note was dated formance of the contract he became liable. April 2, 1838, and payable six months after the date. The court properly directed the verdict for the The suit was brought against the guarantor in Septem- plaintiff, and the judgment of the court below must ber, 1845. The defendant offered to prove that from be affirmed with costs. the time the note fell due until the latter part of 1813, The other justices concurred. the maker was able to pay the note; that be then (To same effect, Newcomb v. Hale, 90 N. Y. 326; failed, and was insolvent at the time of the commence- | S. C., 43 Am. Rep. 173; Bank of Newberry v. Sinclair, ment of the suit, and still remained so. This evi- | 60 N. H. 100; S. C., 49 Am. Rep. 307.-ED.] dence was objected to, aud excluded, and verdict directed for plaintiff. The court says: “ The undertaking of the defendant was not conditional, like that of an indorser, nor was it upon any condition whatever.

INSURANCE-ACCIDENT-EXCLUDED It was an absolute agreement that the note should be

RISKS-KILLING BY ROBBER. paid by the maker at maturity. When the maker failed to pay, the defendant's contract was broken, KENTUCKY COURT OF APPEALS, MAY 28, 1888. and the plaintiff had a complete right of action against him. It was no part of the agreement that the plain

HUTCHCRAFT's Ex'r v. TRAVELLERS' INS. Co. OF tiff should give notice of the non-payment, nor that he

HARTFORD. should sue the maker, or use any diligence to get the money from him. * * i Proof that when the note A policy against death by "external, violent or accidental became due, and for several years afterward, the

means," contained a proviso that no claim should be maker was abundantly able to pay, and that he had

made under the ticket when the death may have been since become insolvent, would be no answer to this

caused by intentional .njuries inflicted by assured or any action. The defendant was under an absolute agree

other person. Held, that assured having been waylaid ment to see that the maker paid the note at maturity.

and killed for the purposes of robbery, there can be no If the defendant wished to have him sued he should

recovery under such policy. have taken up the uoto and brought the suit himself. William Lindsay and Rassell Mann, for appellant. The plaintiff was under no obligation to institute legal

James S. Pirtle, for appellee. proceedings."

The weight of authority, both in this country and in BENNETT, J. During the time that appellant's tes-
Eugland, suscains this doctrine, and we think with tator held two tickets of insurance in the appellee's

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oompany, insuring his life in the sum of $3,000 each the deed was willfully directed against him would not against death “through external, violent and acciden militate against the proposition that as to him the intal means," he was waylaid and assassinated for the jury was brought on by “accidental means." purpose of robbery. The appellee interposed two de- 2. That part of the proviso that is germane to the fenses to the appellant's action to recover these sums: second ground of defense is as follows: "And no claim First, that the appellant's testator having been killed shall be made under this ticket when the death or inby intentional" means,'' his death was not accidental jury may have been caused by dueling, fighting, wrestwithin the meaning of the terms of the policy which ling, lifting, or overexertion, or by suicide (felonious insured him against death “through exterual, violent or otherwise, sane or insane), or by intentiopal injurand accidental means;” second, that the proviso inies inflicted by the insured or any other person.” The the policy expressly exempted the appellee from lia- | fact that the insured engaged in a duel or fight, though bility in case the appellant's testator came to his forced upon him; the fact that he engaged in a wrestdeath through injuries intentionally inflicted by an ling match, however innocent; the fact that he enother person. These defenses will be disposed of in gaged in lifting, though never go cautious; the fact their order.

that he overexerted himself, though never so innocent 1. Iu each ticket the appellee covenanted to pay of an intention of doing 80-whereby he received in$3,000 to Hutchcraft's representative if he should be juries--are expressly excluded from the operation of killed “through external, violent and accidental | the policy. Also the fact that the insured commeans." Accidents are of two kinds: First, those that , mits suicide, although insane, therefore in a legal befall a person without any human agency; as the sense accidental, excludes him from the benefit of the killing of a person by lightning. Here the elemental | policy. The remaining clause stipulates for a further properties of lightulng and its flash are not caused or exemption of the appellee's liability in the event that controlled by human agency; but the fact that the intentional injuries are inflicted upon the insured by person was struck by unintentionally placing himself himself or any other person. It is contended by the within its range, is as to him an accident. Second, appellant that the meaning of this clause is, that "if those that are the result of human agency. The latter the insured intentionally inflicted injuries upon himare divided as follows: First. That which happens to self, or if any other person intentionally ina person by his own agency, as if he is walking or run flicted injuries upon him, with his consent, or ning, and accideutally falls and hurts himself. Here at his instance, then the appellee should not he falls by reason of his agency in walking or running, be liable.” A moment's reflection will show but be did not intend to fall. He did not foresee that that the clause will not admit of this construction. he would fall in time to avoid it. The fall was there The clause, when placed in juxtaposition with its anfore accidental. Second. That which befalls a person tecedents, reads as follows: "No claim shall be made by the agency of another person, without the concur- | under this ticket when the death or injury may have rence of the latter's will; as where one standing on a been caused by intentional injuries inflicted hy the inscaffold unintentionally lets a brick fall from his hand, sured or any other person.” The sentence, though and it strikes a person below. Here the dropping of awkwardly expressed, is complete, and clearly exthe brick, as it was not intended by the former, and presses the idea that if the insured intentionally kills was unforeseen by the latter, is in the broadest sense or injurez bimself by the infliction of bodily wounds, an accident. Third. That which a person intention he thereby breaks the condition of the policy; or that ally does, whereby another is unintentionally injured; | if he is intentionally killed or injured by any other as where one intentionally fires a gun in the air, and person, by the infliction of bodily wounds, the condiaccidentally shoots another person. Here the act of tion of the policy is thereby broken. Therefore to add firing the gun was intentional, but the shooting of the the words, “with his consent or at his instance," person was unintentional. Therefore on the part of ) would have the effect of torturing the meaning of the the person firing the gun, the shooting of the other language used beyond its legitimate import. By the would be accidental, though not in as broad a sense as | terms of the contract the company undertakes to in. in the former case, because some part of his act was | demnify against death or injury effected “through ex. intentional; but as to the person shot, it was by purely | ternal, violent and accidental means." By virtue of accidental means. Fourth. So also as we think, if one this undertaking the company would be liable if the person intentionally injures another, which was not death or injury should be effected by any external and the result of a rencounter or the misconduct of the violent means whatever that was as to the insured aclatter, but was unforeseen by him, such injury as to cidental, except in so far as the company by the prothe latter, although intentionally inflicted by the for- viso limited its liability; for it is a well-knowl rule of mer, would be accidental. When the injury is not the construction that where the undertaking of a party is result of the misconduct or the participation of the expressed in general terms, as in this case, and injured party, but is unforeseen, it is as to him acci- specified things, as in this case, are excepted dental, although inflioted intentionally by the other from the operation of the general terms, such party. It is conceded that in the three instances first terms are to be construed as covering all things comnamed the injury would be by accidental means. Nor | ing within their scope, except those that are expressly doubtless will it be denied that if a person were to excluded. As therefore the assassination of Hutchmaliciously fire his gun into a crowd of persons for the craft was as to him an unforeseen event-a casualtypurpose of general mischief, or were to maliciously | his taking off was through external, violent and accidenwreck a train of cars for the purpose of injuring | tal means. But we also think the clause of the proviso whoever may be on board, whereby one or more that excludes the appellee's liability, in case death or persons were shot or mashed, the casualty befall- | injury is intentionally inflicted by any other person, ing these persons, as far as they were coucerued, applies to this case. We think however that said would fall within the term of accidental means. clause was intended to apply to such injuries by other In other words, we do not regard it as essential, | persons as are intentionally directed against the inin order to make out a case of injury by acci- sured, and not to such injuries as the iusured may redental means, so far as the injured party is concerned,

ceive at the hands of the third persons who are atthat if the party injuring him should not have meant tempting to do mischief generally, or who are attempt. to do 80; for if the injured party had no agency in | ing to injure any particular individual other than the bringing the injury on himself, and to him it was une assured, or class of individuals, or any kind of propforeseen-a casualty-it seems clear that the fact that | erty; for in such cases it cannot be said that the in

jury was intentionally aimed directly and individually at the insured.

The judgment of the Circuit Court overruling the durrer of the appellee's answer is affirmed.

omission of all business or certain kinds of business,
or the erection or non-erection of buildiugs upon the
property, we see no reason to doubt the validity of an
agreement, fair and valid in other respects, which se-
cures that restraint. Indeed it seems well settled by

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NEW YORK COURT OF APPEALS ABSTRACT. by a grantor and assumed by a grantee, which is a re

striction as to the use of the land, may be enforced in CONTRACT - PUBLIC POLICY-RESTRAINT OF TRADE.

equity against the grantee and subsequent purchasers -One whose only business was selling sand from land with notice. Parker y. Nightingale, 6 Allen, 341, 344; which he owned, having refused to sell a piece of the

Burbank v. Pillsbury, 48 N. H. 475. Nor is it essen. land, on the ground that it would hurt his business, at tial that the assignees of the covenautor should be last agreed to do so on the vendee's stipulation not to Named or referred to. Morland v. Cook, L. R., 6 Eq. sell sand from it. Held, that the stipulation was pot 252. In Tulk v. Moxhay, 1 Hall & Tw. 105, it was said invalid. But the question prese:sted is, upon the con that the jurisdiction of the court in such cases is not ceded facts, really one of individual right, with which fettered by the question whether the covenant does or the question of public policy has little if any thing to

does not run with the land. Iu that case the purdo. Parties competent to contract have contracted,

chaser of the land, which was conveyed to him in feethe one to sell a portion of his land, but only upon simple, covenanted with the vendor that the land such conditions as will protect himself in the prosecu should be used and kept in ornamental repair as a tion of business carried on upon the residue, the other pleasure-garden, and it was held that the vendor was agreeing to buy for a consideration affected by that entitled to an injunction against the assiguee of the coudition, and enabled to do so only by acceding to

purchaser to restrain them from building upon the it, and he therefore binds himself by contract to limit land. Upon the appeal, the chancellor (Cottenham) the use of the land purchased in a particular manner. said: "I have no doubt whatever upon the subject. There seems no reason why he and his grantee, taking In short, I cannot have a doubt upon it, without imtitle with notice of the restriction, should not be | peaching what I have considered as the settled rule of equally bound. The contract was good between the this court ever since I have known it. Where the original parties, and it should, in equity at least, bind owner of a piecc of land enters into contract with his whoever takes title with notice of such covenant. By neighbor, founded, of course, upon a valuable or other reason of it the vendor received less for his land; and good consideration, that he will either use or abstain the plain and expressed intention of the parties from using his land in such a manner as the other would be defeated if the covenant could not be en party by the contract particularly specifies, it appears forced as well against a purchaser with notice as to me the very oundation of the whole of its jurisdioagainst the original corenantor. In order to uphold tion to maintain that this court has authority to enthe liability of the successor iu title, it is not necessary

force such a contract. It has never that I know of that the covenant should be one technically attaching been disputed." The questiou before the court was to and concerning the land, and so running with the

stated to be whether a party taking property with a title. It is enough that a purchaser has notice of it; stipulation to use it in a particular manner, will be the question in equity being, as is said in Tuik v. Mox permitted by the court to use it in a way diametrically hay, 11 Beav. 571; 2 Phil. Ch. 774, not whether the opposite to that which the party has stipulated for. covenant ran with the laud, but whether a party shall “Of course," he says, “the party purchasing the be permitted to use the land inconsistently with the I property which is under such restriction gives less contract entered into by his vendor, and with notice for it than he would have given if he had bought os which he purchased. This principle was applied in it unincumbered. Can there then be any thing much Tallmadge v. Bank, 26 N. Y. 105, where the equity in more inequitable or contrary to good conscience, than regard to the manner of improvement and occupa that a party who takes property at a less price because tion of certain land grew out of a parol contract made it is subject to a restriction should receive the full by the owner with the purchaser, and was held bind value from a third party, and that such third party ing upon a subsequent purchaser with notice, although should then hold it unfettered by the restriction under his legal title was absolute and unrestricted. In Trus which it was granted? That would be most inequittees v. Lynch, 70 N. Y. 440, the action was brought to able, most unjust and most unconscientious; and as restrain the carrying on of business on certain premi far as I am informed, this court never wonld sanction ses in the city of New York of which the defendant any such course of proceeding." And in language was owner, upon the ground that the premises were very applicable to the case before us, he adds: “Withsubject to a covenant reserving the property exclu out adverting to any question about a covenant runsively for dwelling-houses. The court below held, I ning with land or not, I consider that this piece of among other things, that the covenant did not run land is purchased subject to an equity created by a with the land, and that the restriction against carry. party competent to create it; that the present defend. ing on any business on the premises was liable to con) ant took it with distinct knowledge of such equity exflict with the public welfare, and judgment was given isting; and that such equity ought to be enforced for the defendant. Upon appeal it was reversed; the against him, as it would have been against the party covenant held to be biuciing upon a subsequent who originally took the land from Mr. Tulk." This grautee with notice, as well upon the original cove case is cited and followed, as to restrictive covenants, mantor. So the restraint may be against the use of the | in many cases. Brown v. Railwar Co.. 2 (). B. Div. premises for one or another particular purpose, as that 406; Railway Co. v. Gomm, 20 Ch. Div. 562, 576. Each mo building thereou shall be used for the sale of ale. case will depend upon its own circumstances, and the beer, spirits,' eto., “or as an inn, public-house or jurisdiction of a court of equity may be exercised for beer-house" (Carter v. Williams, L. R., 9 Eq. 678); | their enforcement, or refused, according to its discreand it is said a man may covenant not to erect a mill tion (Trustees v. Thacher, 87 N. Y. 311); but where the on his own lands (Mitchel v. Reynolds, 1 P. Wms. 181). agreement is a just and honest one, its judgment Many other instances of restraint might be referred should not be iu favor of the wrong-doer. Such seems to; and where it is of such nature as concerns the to us the character of the covenant in question. It is mode of occupying or dealing with the property pur restrictive, not collateral to the land, but relates to its chased in the way of business operations or eveu the use; and upon the facts found, the plaintiff is entitled

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