Page:Harvard Law Review Volume 5.djvu/297

RESTRICTIONS UPON THE USE OF LA A ^ . 28 £ however, that are apparently inconsistent. 1 It has been held that when part of a quarry or a clay pit was sold with a covenant that no stone or clay should be sold therefrom, such covenant was personal and did not run with the land. In both cases the intention of the parties seems clearly to have been that both the benefit and burden of the contract should adhere to the land ; and the decisions must be supported upon the ground that the contracts were illegal because designed to create a monopoly. In a New York case a view was taken contrary to that of the two cases cited. 2 Given a valid contract, intended to run with the land, such as equity has the power to enforce, the question becomes one of constructive trust. Such a contract is binding upon one who takes as volunteer, 3 or with notice, unless there has been a mesne con- veyance to a purchaser for value without notice. 4 The notice may be actual or constructive. In the United States, the registry system supplies constructive notice. Aside from this, a pur- chaser is bound by notice of everything that appears in his title- deeds, 5 or from the character of the land in the neighborhood, as when all the houses in a block are built upon some uniform plan. 6 The law is not clear upon the point how far one having notice of a restriction is bound to find out from extrinsic evidence for whose benefit the restriction was intended. In Parker v. Night- ingale 7 a purchaser was held to notice of the fact that his land had been part of a partition between tenants in common, and that there had been a parol agreement among them concerning restrictions. The rule seems to be that a purchaser who knows of the restriction is bound to notice of all facts aiding in its construction which the exercise of reasonable diligence would disclose. The question who may enforce the restriction is, perhaps, the most important part of the subject. There are three possibilities : the restriction may be for the benefit of the promisee personally, of other land of his, or of somebody's else land. The question is determined according to the intention of the parties. Most 1 Norcross v. James, 140 Mass. 188 ; Brewer v. Marshal), 19 N. J. Eq. 537. 2 Hodges v. Sloan, 107 N. Y. 224. 8 Wolfe v. Frost, 54 Sand. Ch. 72; Toll Br. Co. v. Vreeland, 4N. J. Eq. 157. 4 Nottingham Brick Works v. Butler, 16 Q. B. D. 778. 6 Wilson v, Hart, L. R. 1 Chan. 463. 6 Spicer v. Martin, 14 App. Cas. 12. 7 6 All. 341.