Editorial Committee of the Cambridge Law Journal

Real Property. Positive Covenant. Deed. PerpetuityAuthor(s): H. W. R. WadeSource: The Cambridge Law Journal, Vol. 15, No. 1 (Apr., 1957), pp. 35-38Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4504431 .

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C.L.J. Case and Comment 37

since they had been used at all times under the terms of the deed, and on those terms only. If that important element is kept in

mind, it may after all appear that the decision does not go very far out of the ordinary run. An owner who has no right to use

the necessary roads or sewers will soon have to come to terms

with the proprietors thereof, and if he is enabled to do so under

a deed which safeguards him against paying an undue contribution, he may well congratulate himself. The argument that novel burdens can thus be imposed upon land is countered in theory at least by the fact that the plot-owner does not have to adopt the deed unless he wishes to do so. What remains, nevertheless, is a model example showing how, in a suitable case, the rule

against positive covenants binding successors in title can be cir- eumvented. It can now be classed alongside the device of an

enlargeable lease (Law of Property Act, 1925, s. 153 (8); Challis, Real Property, p. 335) as a means of making covenants run with land which could not otherwise do so. All that the covenantee need do is to reserve control of some essential facility, and impose positive covenants in connection with it. Vendors who take restrictive covenants are often in a position to do this, particularly in the case of building schemes.

While it says much for the skill of the authors of the deed of 1851 that their intricate scheme of covenants should have proved so effective, it ought to be observed that the rule as to deeds has been applied in a much wider form than in any previous case. The only precedent cited by Upjohn J. is a reference to Co.Litt. 230b interjected by Lord Cozens-Hardy M.R. in argument in Elliston v. Reacher [1908] 2 Ch. 665, but the principle played no

part in the Court of Appeal's decision. Stray references to the doctrine always lead directly back to this text of Littleton, which Coke illustrated by some cases from the year-books. Those cases deal with the problem of suing a person who has been made party to a deed, but has omitted to execute it; and the doctrine is, that if one of the parties to a deed takes the benefit of it, he can be sued upon it even though he did not execute it. An accurate statement, presumably, is that of Lord Denman CJ. in Webb v.

Spicer (1849) 13 Q.B.D. 886 at p. 893: "a man may be bound

by the covenants of a deed in which he is described as a party, though he does not execute it, if he assent to it, and take a benefit under it." It is in the same guise that the doctrine appears in R. v. Houghton-le-Spring (1819) 2 B. & Aid. 875, and it is only as to a party that the rule is stated in Norton on Deeds, 2nd ed., 26. It must be doubtful whether any wider rule has hitherto existed, despite Upjohn J.'s statement that "it is conceded that

This content downloaded from 193.105.154.127 on Fri, 13 Jun 2014 05:42:49 AMAll use subject to JSTOR Terms and Conditions

This content downloaded from 193.105.154.127 on Fri, 13 Jun 2014 05:42:49 AMAll use subject to JSTOR Terms and Conditions