Page:Harvard Law Review Volume 5.djvu/300

284 284 HARVARD LAW RE VIE W. benefit follows each lot, 1 and the same is true of the burden ; but when part of land subject to a restriction is sold, one part can- not claim the benefit of the restriction over the other. 2 As has been said, the theory upon which equity makes the re- striction run with the land is by an implied assignment of the contract. The original parties to the contract upon parting with the land cease to have any real interest. The real parties in in- terest, the owners of the dominant 3 and servient 4 tenements, may bring suit and be sued without joining their predecessors in title ; and when a restriction inures for the benefit of several lots, the owner of one may bring suit without joining the other owners. 5 The whole subject of restrictions is still in its infancy. Outside England, Massachusetts, and New York, the cases are few, and even in those three jurisdictions the questions uncovered by deci- sions are not very numerous. Such cases as do exist seem, how- ever, completely to establish this proposition. Fresh questions, as they arise, are to be solved by answering one or both of these questions : (1) as against the party creating the restriction, is there a case for the specific performance of the contract ? (2) as against subsequent purchasers of the land, do the circumstances of his purchase give rise to a constructive trust ? Charles I. Giddings. 1 Schwoerer v. Boylston Market Ass., 99 Mass. 285. 2 Jewell v. Lee, 14 All. 145; King v. Dickinson, 40 Chan. Div. 596. 8 Nottingham Brick Works v. Butler, 16 Q. B. D. 778, at 784; Schwoerer v. Boylston Market Ass., supra. 4 Hall v. Ewin, 37 Chan. Div. 80. 6 Western v. M'Dermott, L. R. 2 Chan. 72; Harrison v. Goode, L. R. 11 Eq. 349.