P (Tulk) was the owner of the land in dispute in 1808 and conveyed the interest in the land in fee to Elms, and the deed of conveyance contained the covenant – the piece of land from the Elms passed by divers mesne conveyance.
- D manifested an intention to build upon the land that had a covenant upon it.
- P filed a bill of injunction to stop the D from building upon the land which was restricted due to the covenant.
Can the D sell the land to a new purchaser with the intentions of violating the covenant on the land?
For if an equity is attached to the property by the owner, no one purchasing with notice of the equity can stand in a different situation from the party from whom he purchased.
- D purchased the land with a covenant attached to it as to not use the land for any other purpose that as a square garden.
- The resale price would be affected by the covenant, and nothing could be more inequitable than the original purchaser should be able to sell the property the next day at a greater price, in consideration of the assignee being allowed to escape liability which he had himself undertaken.
The covenant runs with the land to the new purchaser, and the new purchaser has to adhere to the covenant that was on the land.