[Leg. Int., Vol. 30, p. 380.]

GEORGE BRICKER vs. CHARLES GROVER & JOHN GROVER.

A grantee who takes a conveyance with full knowledge of a covenant in relation to the land made by the grantor, but not contained in the deed from the grantor to the complainant, will be restrained by injunction from a violation of the covenant.

In equity. Motion to continue special injunction. Opinion delivered November 15, 1873, by

PEIRCE, J.-The plaintiff, in 1873, by an instrument of writing under seal, agreed to purchase of the defendant, Charles Grover, the lot or piece of ground and stable, No. 3805 on the north side of Market street, west of Thirty-eighth street, in the city of Philadelphia, and a lot contiguous thereto on Thirty-eighth street, for the price or sum of nineteen thousand five hundred dollars.

At the same time a further agreement was made between the parties as follows, viz:

In consideration of the above agreement on the part of George Bricker, I hereby agree with him that I will not at any time erect or cause to be erected on the lot of ground belonging to me, situate on the west side of Thirty-eighth street, at the distance of sixty feet northward from the north side of Market street, containing in front forty feet, and extending of that width in depth thirty feet, any stable of any kind, and I agree hereby to execute such further papers as may be necessary to secure to him my full performance of this agreement.

CHARLES GROVER, [L. 8.]

Afterwards, on the 6th day of May, A. D. 1873, the defendant, Chas. Grover, by deed duly executed, conveyed the said two first mentioned properties to the plaintiff, but the deed contained no covenant or recital of the agreement not to erect a stable on the last mentioned property.

Subsequently, on the 28th of October, 1873, the defendant, Chas. Grover, conveyed the lot on which he had covenanted not to erect a stable, to his son, John J. Grover, the other defendant, for the consideration of forty-eight hundred dollars, who avers that the said lot is so valuable only for a stable, and that if he is prevented from erecting said stable, the property will be of little value to him for any other purpose. He admits that he knew of the agreement not to build a stable on this lot, but that he was advised and believes, that it is only personal in its operation against the defendant, Charles Grover, and that it is not a Covenant running with the land.

The defendant, John J. Grover, is about to erect a stable on the said lot, and the bill is filed to prevent him from so doing.

It is not necessary for the purposes of this application to determine whether the covenant of Charles Grover, not to erect a stable on said lot, is a covenant running with the land, or is a mere personal obligation. It is an important rule of equity, that a party taking with notice of an equity, takes subject to that equity. The meaning of this doctrine is, that if a person acquiring property has, at the time of acquisition, notice of a prior equity binding the owner in respect of that property, he shall be assumed to have contracted for that only which the owner could honestly transfer, viz., his interest, subject to the equity as it existed at the date of the notice. The exact extent to which this doctrine will be carried where a covenant has been made by the owner of land, the

burden of which does not at law run with the land, does not appear to be positively settled. If, however, the covenant be one respecting the land, and not purely collateral, there appears to be no reason why the doctrine of notice should not apply, or why the assignee of the land, knowing that the covenant has modified his assignee's ownership, should not be presumed to have contracted for it, subject to that modification : Adams' Equity, 151, 152.

It is the doctrine of a court of equity, that whatsoever is the agreement concerning any subject, real or personal, though in form and construction purely personal, and suable only at law, yet in this court it binds the conscience, and as against the party himself, and any claiming under him, voluntarily or with notice, raises a trust: Legard vs. Hodges, 1 Vesey, Jr., 477.

A purchaser with notice of a previous agreement between the grantor and another, takes the land subject to the agreement: Smith vs. Gibson, 1 Yeates, 291.

In Tulk vs. Moxhay, 2 Phillips' Ch. Rep. 778, Lord Chancellor Cottenham said, that the question does not depend upon whether the covenant runs with the land, is evident from this, that if there was a mere agreement and no covenant, this court would enforce it against a party purchasing with notice of it; for if an equity is attached to the property by the owner, no one purchasing with notice of that equity, can stand in a different situation from the party from whom he purchased. The remaining question is, whether the plaintiff can have an adequate remedy in pecuniary damages for breach of this covenant.

Courts of equity will decree performance of a contract for land, not because of the particular nature of land, but because the damages at law, which must be calculated upon the general value of land, may not be a complete remedy to the purchaser, to whom the land purchased may have a peculiar and special value; Story's Equity Jur., § 716. This is the general rule, and all contracts or questions touching the enjoyment of land fall within the principle of this rule. Therefore, courts of equity will restrain nuisances affecting the permanent enjoyment of land; and repeated or continuing trespasses on land; and breach of agreements affecting the enjoyment of land.

In this case the defendant covenanted not to erect or cause to be erected a stable on the adjoining lot belonging to him. The plaintiff had been in business with the defendant, Charles Grover, on the premises sold by him to plaintiff, as keepers of a sale stable. The defendant, John J. Grover, says, that the lot purchased by him adjoining the plaintiff's property, is so valuable only for a stable. It may be readily perceived how the erection of a stable on the adjoining lot would affect the value of the plaintiff's property. But what would be the measure of damages in such a case it is not so easy to decide. It is enough that it impairs the peculiar use and enjoyment of the property which the plaintiff purchased with the covenant that the defendant, Charles Grover, would not erect a stable on the adjoining lot, and of which John J. Grover had notice when he bought the adjoining lot from his father. In such a case a court of chancery always enjoins.

The special injunction is continued.

Hon. Benjamin Harris Brewster, for the plaintiff.
Hon. William A. Porter, for defendants.

[Leg. Int., Vol. 30, p. 392.]

BACON VS. MORRIS et al.

A return of nulla bona is not sufficient to found a bill under the act of 1863, making the officers of certain corporations liable in equity for their debts.-The return must set out that no real or personal property of the corporation was exhibited to the officer, sufficient to satisfy the debt, as required by the act.

Demurrer to bill in equity. Opinion delivered November 22, 1873, by LUDLOW, J.-The defendants in this bill are the officers of "The Philadelphia Pressed Brick Works Co.," and an effort is now made to make them liable for the debts of the concern under the provisions of the act of July 18, 1863, entitled, "an act for mechanical manufacturing, mining and quarrying purposes."

If the provisions of the act have been complied with, doubtless the plaintiffs in this bill have an equitable remedy; but the act is in its nature, so far as officers are concerned, a highly penal one, and its provisions must be strictly pursued.

By the 41st section of the law, a judgment or any other creditor may file a bill in equity, 1st. Where a judgment has been recovered. 2d. Where the corporation neglects "for the space of thirty days" after a demand on execution, either to pay the amount due with officers' fees, or to exhibit to the officer, real or personal estate, subject to be taken in execution, sufficient to satisfy the same, and when the execution shall be returned unsatisfied.

The 42d section provides, that "after the execution shall be so returned," the judgment creditor may file a bill in equity, etc. Clearly the official act of the sheriff must include something more than a mere return of "nulla bona," for this return may be made, and yet real and personal estate of the corporation may exist subject to levy and sale.

As a preliminary measure, the return of the sheriff will either produce a fund for the payment of the debt, or will presumptively prove that the corporation has no assets to answer the demand of the execution. An attempt has been made by an amendment to cure a defect in the bill, and so far as the first cause of demurrer is concerned, is successful; but how do we know that real estate, subject to levy and sale was not exhibited, and that by proper legal process the debt may not at this moment be in course of collection?

It is true the amendment declares that no exhibit of real or personal estate was made, but the sheriff does not so return the writ, and in the absence of this legal return to the fieri facias, while it may be true, as stated in the amendment, that payment has not (yet) been made, it may also be as true, that real estate exists, by a sale of which the debt may be paid. We are obliged to sustain this demurrer for the second reason assigned upon our record.

Demurrer sustained.

Charles E. Morris, Esq., for demurrer.
Charles E. Morgan, Esq., contra.

[Leg. Int., Vol. 30, p. 392.]

JOSHUA P. B. EDDY et al. vs. THE BOARD OF HEALTH.

The power of the board of health does not extend to the removal of tenants from their houses, and closing up the latter, unless justified by the existence of a pestilential disease. Such action will be restrained by injunction.

Motion to continue special injunction. Opinion delivered November 22, 1873, by

PEIRCE, J.-The plaintiff, Eddy, is the owner, and the other plaintiffs are tenants of the properties, Nos. 629 and 631 Bainbridge street, in the city of Philadelphia. The board of health appointed a sanitary committee to inspect the district in which these properties are situate, who reported respecting these properties that the yards were to be cleansed, cellars cleaned, disinfected, and closed; also, shanty or frame building in the rear to be thoroughly cleansed, vacated and closed. The board of health thereupon gave notice to the tenants to remove therefrom or they would be forcibly ejected, and they ordered the houses and premises to be at once closed. The power of the board of health to abate nuisances and the causes of them, and to enforce sanitary regulations, is very great, and the courts never interfere with the legitimate use of their power; but to the contrary, excuse an excessive exercise of the power in cases where there is great peril to the public health, even when the city of Philadelphia is responsible for damages for the unlawful exercise of their power, as is shown in the recent case of Sumner vs. The City of Philadelphia, 30 Legal Intelligencer, 329. But the exercise of a power which is clearly unlawful, and which has no great public necessity to excuse it, will be restrained by the courts, no matter how praiseworthy the motives may be which prompted it. The board of health, in view of the possible approach of cholera to our city last summer, took active and praiseworthy measures to guard the city against pestilence, and so far as relates to the lawful measures adopted by them for the removal of nuisances, and all causes of disease, they have the hearty approval of all our citizens. When, however, they claim to remove citizens from their homes, and close up their houses, they must have either the sanction of law for it, or they must be justified by great public necessity, which demands such action, because there is no other way to avert the threatened peril-upon the same principle that buildings may be blown up to prevent the spread of a great conflagration.

This leads us to inquire into the law which would justify such action by the board of health. The powers conferred upon the board of health are statutory, and are to be found in the several acts of assembly conferring these powers upon them. The constitutions of the United States and the State of Pennsylvania both provide, that the people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures; and that no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation. The cases in which the board of health may enter private dwellings and remove persons therefrom, or close them up, are confined exclusively to cases of pestilence or contagious disease, by virtue of the 15th, 22d and

23d sections of the act of 29th of January, 1818. Their power to remove nuisances is also well defined, and before they can enter upon occupied or enclosed property to search for nuisances they must obtain a warrant prescribed by the 27th section of the act of 1818: Kennedy vs. The Board of Health, 2 Barr, 366; Baugh vs. Sheriff, 7 Phila. 82. And then if the owners or occupiers of the premises, on due notice, shall refuse or neglect to remove the nuisances, the board of health shall remove them and charge the expense to the owner of the property. In the cases of the bone-boiling establishments in certain wards of the city, the board of health appears to be empowered by the act of 29th of March, 1865, to enter the premises without warrant and abate the nuisance. In this case the power of the board of health was limited to the removal of the alleged nuisance, or cause of nuisance, and did not extend to the removal of the plaintiffs from their houses and the closing of them up, as there was no existence or allegation of existence of a pestilential disease there to warrant them in so doing.

The affidavits of the defendants also exhibit that they were doing what the law required them to do, viz., removing or had removed the alleged nuisances from the premises at the time they were required by the board to remove from and close up their houses. The most that the board of health could do in such a case would be to remove or cause to be removed the nuisances complained of. The law looks with too jealous an eye upon the right of every man to the peaceful possession of his house, his castle, the dwelling-place of himself and family, to permit him to be ejected from it, except in a clear case of right. No such right or authority in law has been shown in this case.

The special injunction is continued.
John A. Burton, Esq., for plaintiffs.
Robert N. Willson, Esq., for defendants.

[Leg. Int., Vol. 30, p. 416.]

HARDING vs. DEVITT et al.

1. The agreement of partners to make real estate part of the common stock must be in writing, and ought to appear of record.

2. Where the possession of the plaintiff, who was one of the tenants in common is disputed by the others, an issue should be framed and the facts found by the jury.

Opinion delivered December 6, 1873, by

PAXSON, J.-William W. Harding claims to be the owner in fee of an undivided one-fourth part of premises No. 427 Walnut street, and brings this bill for partition of the same against the defendants, Joseph E. Devitt, Nicholas P. Murphy, and Jeremiah L. Hutchinson, whom he alleges to be the owners respectively of the remaining three-fourths thereof.

The defendants allege that the said property belongs to the firm of Joseph E. Devitt & Co., composed of said defendants, and J. Morris Harding, a brother of the plaintiff; that said firm is insolvent, and that J. Morris Harding is indebted to it in a considerable amount.

The answer denies both the title and the possession of the plaintiff. The latter bought the undivided one-fourth part belonging to his brother Morris, and holds a deed therefor.