Page:Harvard Law Review Volume 10.djvu/38

12 12 HARVARD LAW REVIEW. the present writer in the Harvard Law Review for January, 1893,^ with especial reference to the application of the principle to restrictions arising out of the adoption of a general plan for the use and improvement of a tract of land divided and sold to different persons. It was pointed out in that article, that in some of the leading cases the action of the court in granting an injunction was based on purely equitable grounds, and that it was held that the obligation arose out of acquiring the property with notice of the agreements made with respect to it. In Duke of Bedford v. British Museum, 2 one of the earliest cases on the subject, the action of the court was put on that ground. In Tulk v. Moxhay, Lord Chancel- lor Cottenham said: "The question is not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into with his vendor, and with notice of which he has purchased." So also in Whitney v. Union Railway Company,^ Chief Justice Bige- low, of Massachusetts, said : " An agreement restricting the use of land is binding on an assignee with notice, not because he is an assignee, but because he has taken the estate with notice of a valid agreement concerning it which he cannot equitably refuse to per- form " ; and Chief Justice Beasley, in a leading case in New Jersey,* said: "The principle on which equity enforces the burden of a covenant against an alienee is that of preventing a party having acquired land with knowledge of the rights of another from defeat- ing such rights, and not upon the idea that such engagements create easements which run with the land." Whatman v. Gibson^ was one of the first of the English cases in which relief was granted upon the principle of carrying out a general plan for the improvement of land, and Vice Chancellor Shadwell said that all the parties to the deed were bound by it, and that he saw "no reason why, there being an agreement, all persons who came in with notice should not be bound by it, each proprietor being manifestly interested in preserving the uniform- ity and respectability of the row." In a case in New Jersey,^ the doctrine of obligation arising out of notice was applied to the use of personal property which a 1 6 Harvard Law Review, 280. 2 I M. & K. 522 (1822) ; 2 Phill. 774 (1848). » II Gray, 359.
 * Brewer v. Marshall, 19 N. J. Eq. 537 (1868).
 * 9 Sim. 196(1838).
 * Manhattan Manufacturing & Fertilizing Co. v. Van Keuren, 23 N. J. Eq. 251.