Page:Harvard Law Review Volume 5.djvu/298

282 282 H AR VARD LA W RE VIE W. frequently extrinsic evidence is necessary to explain the written instrument upon this point, and when this is done certain rules of construction are applied. The instrument is construed so as to make the burden of the restriction as light as possible, and the right is held personal to the promisee unless the contrary inten- tion clearly appears. 1 If, however, the adjoining land belongs to the promisee, and is benefited by the restriction, there is a pre- sumption that it was intended to be appurtenant to that land, 2 particularly if there is any uniform scheme regarding the two lots, or reference to plans. 3 If this intention be manifest, equity has no difficulty in carrying it into effect : it presumes an assignment of the restriction by the owner when he sells the land to which it is attached, and an acceptance by the purchaser, whether he knows of the restriction or not. 4 When the intention is that the restriction shall inure to the benefit of land not owned by the covenantee, a stricter construc- tion still is demanded. The case usually arises when the owner of land divides it into building lots according to some scheme of improvement ; he sells the lots at different times, placing restric- tions upon them according to this scheme. It is evident that any particular restriction inures to the benefit of lots remaining unsold in the hands of the grantor ; but can it be made appur- tenant to lots sold previously? At the time the restriction is imposed, the grantor and the prior purchaser of lots, are strangers ; can the grantor donate the benefit of the restriction under such circumstances to a stranger ? It is held that he can, 5 and rightly, it would seem ; for there is never any objection to making a con- tract for the benefit of another, and a restriction is only a contract. But the courts are properly cautious in giving effect to such a trans- action. It makes little difference whether a restriction is personal to the covenantee or appurtenant to his land, but if it can be made 1 Badger v. Boardman, i6Gray, 559; Lowelllnst. for Sav. v. Lowell, 153 Mass. 530; Masters v. Hansard, 4 Chan. Div. 718; Keats v. Lyon, 4 Chan. App. 218. 3 Rerlals v. Cowlinshaw, 9 Chan. Div. 125; Peck v. Conway, 119 Mass. 546. • Childs». Douglass, Kay, 1; Tobey v. Moore, 130 Mass. 448. 4 Patching v. Dubbins, Kay, 560. 6 Collins v. Castle, 36 Chan. Div. 243; Spicer v. Martin, 14 App. Cas. 12; Notting- ham Brick Works v. Butler, 16 Q. B. D. 778; Parker v. Nightingale, 6 All. 341; Jeffries v. Jerfries, 117 Mass. 188; Payson v. Burnham, 141 Mass. 547; Hamlin v. Werner, 144 Mass. 396; Barrows v. Richards, 8 Paige, 351.