TULK V MOXHAY,(1848) 2 CH. 774

TULK V MOXHAY, (1848) 2 CH. 774

 

FACTS

• X was the owner of a vacant land and several houses surrounding it (forming a square) had sold the vacant land to E, who covenanted that he would keep it in the same condition and would maintain the ground.
• Finally, Y purchased it, and he wanted to construct a building thereon, although he had notice of the covenant.
• X filed a suit and an injunction restraining Y from building.

ISSUE

The question that court observed was not whether the covenant does not run with the land, but whether the party be permitted to use the land in a manner, inconsistent with the contract entered?

 

HELD

The court in this case laid down two rules:

• Covenants between the transferor and the original transferee are always enforceable.
• Negative covenant are binding on the subsequent transferee with notice.

It was held that no one purchasing with notice of an equity can stand in a different situation from that of the party from whom he purchased, and therefore Y was aware of the conditions in the contract and was bound by it.

The general rule of TPA is that the purchaser gets all the rights which the transferor had in that property. But in the above case, the transfer was subjected to beneficial enjoyment of transferor’s property. The rule in this case forms an exception to section 11 and is also incorporated in section in para one of section 40.