Page:Harvard Law Review Volume 5.djvu/294

278 278 HARVARD LA W REVIEW. The contract creates an equitable interest in land, and is within the Statute of Frauds. 1 If it is not in writing it will not be en- forced unless there has been part performance, or expenditure of money on the faith of it, sufficient to create an estoppel. 2 In Browne on the Statute of Frauds (4th ed.), § 269, the contrary state- ment is made ; but the cases cited are not about restrictions, but personal contracts, or contracts concerning boundaries. There is, however, a distinction between a restriction and an ordinary trust in regard to the Statute of Frauds. In case of a trust, the name of the cestui must be in the written instrument. This is because the gist of the trust is the payment of the trust fund to the cestui, and the trust is wholly uncertain unless his name appears. The gist of a restriction is the doing or not doing certain acts to certain land. If the acts and the land are stated in writing, the court considers the statute satisfied, and will gather the other terms of the restriction by reading the writing as a whole in the light of surrounding circumstances. For this reason it is unnecessary that the writing should state to whom the benefit of the restric- tion shall accrue, whether to the covenantor personally or in favor of some other parcel of land. " This is a question of fact to be determined by the intention of the vendor, and that question must be determined upon the same rules of evidence as any other question of intention." 3 The ownership and character of build- ings in the neighborhood, 4 plans, 5 building schemes, 6 the exist- ence of similar restrictions upon other lots, 7 even parol agree- ments among neighbors, 8 may be shown as bearing upon the probable intention of the contracting parties. It is generally stated that restrictions, as the name implies, are limited to agreements of a negative character. 9 This is not strictly true. Any agreement that equity will enforce between the contracting parties will equally be enforced as a restriction against a purchaser of the land. Equity decrees performance of a contract only where it can properly carry out its decree. It 1 Hubbell v. Warren, 8 All. 173; Wolfe v. Fiske, 4 Sand. Ch. 72; Rice v. Roberts, 24 Wis. 461. 3 Wolfe v. Fiske, supra. 8 Lord Esher in Nottingham Brick Works v. Butler, 16 Q. B. D. 778, at 784. • Spicer v. Martin, 14 Aff. Cas. 12, at 25. 6 Collins v. Castle, 36 Chan. Div. 243, at 251-2. • Nottingham Brick Works v. Butler, supra. 7 Childs v. Douglass, Kay, 560. 8 Parker v. Nightingale, 6 All. 341. • Heywood »» Brunswick Bldg. Soc., 8 Q. B. D. 403.