The purchase-deed of a house in a terrace contained a covenant on the part of the vendor, unexplained by any recital, that no building should be erected on any part of the land of the vendor lying on the east side of the said terrace and opposite to the plot of land thereby conveyed. The owners of the other houses had also similar covenants. Held, that the latter words were not merely descriptive of the position of the land, but restricted the general meaning of the former words ; and that the covenant applied only to that part of the land which lay immediately opposite, and was of the width of the plot conveyed.
The general rule that the construction must be taken most strongly against the grantor, modified by the necessity of giving effect to every word of the instrument, if it can reasonably be done.
According to Tulk v. Moxhay (2 Ph. 774), if parties purchase land with notice of a covenant concerning it, but which does not run with the land so as to bind them at law, equity will not permit them to do anything contrary to the true meaning of that covenant.
Delay in taking legal proceedings and other acts not amounting to acquiescence in the infringement of a right.
To deprive a Plaintiff of a legal right at the hearing of the cause a case of acquiescence must be shewn much stronger than such as would be a sufficient defence to an interlocutory application by him, and must amount not only to positive license, but to an implication of an actual grant.
A Plaintiff litigating a question depending upon the construction of a doubtful instrument, not being a will, if the construction be decided against him, must pay the costs of the suit.
Citations:
(1853) Kay 1, [1853] EngR 894, (1853) 69 ER 1
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Citing:
Considered – Tulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .
Lists of cited by and citing cases may be incomplete.
Land, Equity, Costs
Updated: 29 April 2022; Ref: scu.183262
