ever, was done, and deeds of conveyance were made subject to the condi tion. The purchaser of one end of the land also purchased from a stranger a lot opposite thereto, on the other side of the street. It was held that such purchaser could not maintain a bill in equity against the purchaser of an. other portion of the land to restrain the latter from violating the condition. The court proceeded upon the view stated in the preceding paragraph; and in the course of its opinion, given by Bigelow, C. J., it also said: “There is nothing in the case before us which in any degree tends to show that there was any intent on the part of the grantor or grantee in the original deed by which the condition was annexed to that grant that the land now owned by the parties to this suit to give any other or different effect to the condition than that which would result from it at common law. It does not appear that the original grantor had in contemplation the division of the land into separate lots or parcels which would be held by different owners, or that the condition was inserted in the grant for the purpose of creating a restriction on the use of the land as between subsequent grantees of different lots or parcels thereof. And this constitutes the precise distinction between the case at bar and that of Parker v. Nightingale, 6 Allen, 341, 83 Am. Dec. 632, on which the plaintiff mainly relies in support of his case. There it was made to appear that a condition annexed to a grant of an estate was imposed in order to render the occupation of adjacent estates more convenient and advantageous, and that the existence of such condition entered into and formed part of the consideration of the grant of estates which were intended to be benefited thereby. So far as we are able to see, there is nothing to indicate that the original grantor of the premises, in annexing the condition, had any intent to regulate or control the possession or enjoyment of the premises for the benefit of subsequent owners or grantees of the estate, or any part of it, but that it was imposed by him solely for his own private and personal benefit, as the owner of other lots in the vicinity, in which the present plaintiff has no interest whatever": Jewell v. Lee, 14 Allen, 145, 150; 92 Am. Dec. 744.

In another case in Massachusetts, J. S., the owner of a tract of land, laid it out in lots, and recorded in the registry of deeds a plan, showing the streets and lots, with their dimensions. On the north side of one of the streets were five lots, numbered consecutively from 6 to 10, and on the south side a large lot. J. S. conveyed this large lot without restriction, and built a house on lot 10, standing twenty feet back from the street. He then conveyed lot 8 and part of lot 7 to the plaintiff's grantor, by deeds containing a provision that for fifteen years no building should be placed on the granted premises within twenty feet of the street, and that no trade offensive to dwelling-houses in that neighborhood should be carried on, and that a violation of either of these restrictions should not work a forfeiture, but that J. S., his heirs or devisees, might enter upon the land and remove anything violating the restrictions. J. S. afterwards conveyed the rest of lot 7 and also lot 6 to the defendant, by deeds containing the same provision. The court held that the plaintiff could not maintain a bill in equity to restrain the defendant from erecting a building on lot 6 within twenty feet of the street. It was not claimed that in regard to any of the lots there was any written covenant by the grantor, and it did not appear that there was any express stipulation or direct assurance on his part that any person who should purchase a lot on the north side of the street should have the benefit of a restriction binding all the other purchasers to leave an open space between their dwelling-houses and the street. The court, speaking

through Ames, J., said: "The only ground upon which the plaintiff can rest her claim that the restriction in question was intended to operate for the benefit of all the purchasers, and to establish a general plan of building by which each one would acquire a right in the nature of an easement in the land purchased by the others, is to be found in the fact that in his transactions with two separate and independent purchasers the grantor conveyed a portion of the land in each case subject to the terms and conditions set forth in the bill of complaint. It is true that of these conditions the one prohibiting the prosecution of any offensive trade or manufacture upon the premises, or the using of them for the keeping of swine, or of a livery-stable, would in practice be beneficial to the neighborhood generally. But it is to be remembered that the grantor had himself built a dwelling-house in that immediate neighborhood, and a provision which he made for the prevention of nuisances may have been intended for the benefit of that particular house. It is undoubt. edly true, and has often been decided, that where a tract of land is subdivided into lots, and those lots are conveyed to separate purchasers, subject to conditions that are of a nature to operate as an inducement to the purchase to give to each purchaser the benefit of a general plan of building or occupation, so that each shall have attached to his own lot a right in the nature of an easement or incorporeal hereditament in the lots of the others, a right is thereby acquired by each grantee which he may enforce against any other grantee. But in the case at bar there is nothing from which the court can infer that the restriction contained in the deed from Heath to the defendant was intended for the benefit of the estate now owned by the plaintiff. No such purpose can be gathered from the plan, or from the situation of the property with reference to other land of the grantor. It purports to be a condition imposed by the grantor, and the deed points out the mode in which he, his heirs or devisees, may enforce it. Neither of the deeds under which these parties respectively claim purports to give to the grantee any such right against any other grantee. For aught that appears, the con dition may have been intended for the benefit of the grantor or his family, as long as they continued to own the dwelling-house. The burden of proof is upon the plaintiff, if she insists upon giving to that condition any wider ap plication, and this burden we do not find that she has sustained ": Sharp v. Ropes, 110 Mass. 381, 385.

Another illustration of the foregoing principle is found in a case decided by Vice-Chancellor Shadwell in 1839, where a deed dated in 1827, made between J. Pitt, of the one part, and the other persons who had executed the deed, of the other part, recited that Pitt, being seised in fee of the lands delineated in the plan annexed (being a plan of a town called Pittville), and having in contemplation to establish a spä at or near the north end of the lands, and to erect a pump-room at or near the spot marked on the plan, and to lay out the rest of the lands for buildings, pleasure-grounds, roads, etc., had caused the plan to be drawn, whereby the mode in which the lands were intended to be laid out, and the purposes for which they were intended to be converted and used, were described, in order that the beauty and regularity of the whole design might be forever thereafter preserved, subject only to such alterations as should be made or approved of by Pitt, his heirs or as signs, and as should not destroy the general beauty of the same design, and that each of the other parties to the deed had purchased, or agreed to pur chase, one or more of the pieces of land described in the plan, as set out for building. The deed then contained covenants by Pitt, his heirs and assigns, to build the pleasure-grounds, roads, etc., and to keep them in repair, and

other covenants prescribing the manner in which the pleasure-grounds, roads, etc., should be enjoyed and used by the occupiers of the houses to be erected on the building-ground, and that Pitt, his heirs or assigns, would, in every agreement which should be entered into by him or them for the sale of any part of the said ground, require the purchaser to covenant with him, his heirs and assigns, not to erect any messuage on any part of the ground which might lessen in value any other of the messuages erected or to be erected at Pittville. Thereafter, in 1833, Pitt agreed to sell lots 2, 3, 4, and 5 of the building-ground to Stokes, and Stokes agreed with Pitt to erect three houses on those lots, and agreed with him that each house should stand back twentyfive feet from the western boundary of the lots, and that he (Stokes), his heirs or assigns, would not do or suffer to be done on the lots, or in any building to be erected thereon, any act, deed, etc., which might be deemed a nuisance, injury, or annoyance, or which might lessen in value any adjoining or neighboring lands or property, or any houses to be erected thereon. Stokes built two houses on lots 2 and 3, and in 1833 Pitt conveyed these lots to him, and Stokes, for himself, his heirs and assigns, entered into a covenant with Pitt, his heirs and assigns, with respect to these lots and the houses thereon, similar to the last-mentioned stipulation in the agreement. Stokes subsequently gave up to Pitt lots 4 and 5, of which he had the contract of purchase, as already stated, and abandoned his contract of purchase as to them, and then sold his house on lot 3 to the plaintiff. Pitt afterwards agreed to sell lots 4 and 5 to Creed. The agreement between Pitt and Creed stipulated that the house to be erected on those lots should stand back, not twenty-five but ten feet at least from the western boundary thereof, and it also contained a stipulation for protecting the adjoining property from injury, etc., similar to that in the agreement with Stokes. Both Stokes and Creed executed the deed of 1827. Creed began to build a house on his lots thirteen feet distant from the western boundary, which was twelve feet in advance of the plaintiff's house, and which the plaintiff alleged would be a nuisance or an annoy. ance to him, and would lessen the value of his house, and consequently would be a violation of the covenant in the deed of 1827, and of the agreement of 1833. The vice-chancellor held that the plan annexed to the deed of 1827 was merely a general plan, and was not intended to be strictly adhered to, but that its details might be varied by Pitt, and, with his sanction, by the purchasers from him, and that the plaintiff was not entitled to avail himself, as against either Creed or Pitt, of the covenants of 1827 or of the agreement of 1883 for the purpose of preventing the completion of Creed's house in the manner intended, or the performance by Pitt of the agreement with Creed. The foregoing statement is transcribed from the syllabus of the case. The report of the case, and also the opinion of the vice-chancellor, are long and tedious. The vice-chancellor placed his judgment substantially on the ground that in the agreement of 1833 the purchaser, Stokes, was not covenanting as to the mode of using lots 2 and 3 so as to affect lots 4 and 5, or as to the mode of using lots 4 and 5 so as to affect lots 2 and 3. He said: "If he was the purchaser of the whole, it would be absurd to say that he should be restricted in the use of a part, so as not to injure the remainder; for, being the owner of the whole, he would not, of course, use one part so as to injure the remainder. In my opinion, therefore, no part of this covenant in the agreement of April, 1833, is capable of being made to bear on the question." Secondly, he took the view that Stokes having failed to carry out his agreement of purchase as to lots 4 and 5, which Pitt afterwards sold to the defendant Creed, the covenants of 1833 in respect of those lots lapsed,

and fell back into the hands of Creed, and the case became exactly as though such covenants had never been entered into; and thirdly, that inasmuch as the plaintiff could claim only under Stokes, and as Stokes had not taken any stipulation from Pitt for enforcing against Pitt the stipulation which Pitt might have enforced against Stokes, the whole matter was left at large: Schreiber v. Creed, 10 Sim. 9.

A case was decided in the English court of appeal in 1876 on the following state of facts: The owner of an estate granted a lease of a plat of ground to A, who covenanted that he, his executors, administrators, and assigns, would not, during the term, do on the premises anything which should be an annoyance to the neighborhood or to the lessor or his tenants, or which should diminish the value of the adjoining property, and that he would not build, or allow to be built, on the ground any building or erection, without first submitting the plans to the lessor and obtaining his approval. Some years later, the landlord granted a lease of an adjoining plat to B, who entered into a similar restrictive covenant. Within twenty years, A cominenced, with the approval of the lessor, to build upon his ground, so as to darken the windows of B's house. B thereupon brought the present bill in equity to restrain A from erecting, and also to restrain the lessor from approving, the building which A was about to erect. The court held that B was not entitled to relief, either on the principle that the lessor could not derogate from his grant, or on the ground that the restrictive covenants in A's lease inured to the benefit of B. In giving his judgment, James, L. J., said: “The defendants, the Crystal Palace Hotel Company, are owners of a property under the demise of a term of years, and are erecting on it a build. ing which may lawfully be erected, unless they have put themselves under an obligation not to do so. The plaintiff is the owner of an adjoining property under another demise for a term of years from the same lessors, of later date than that of the defendants. He therefore cannot have acquired any rights against them, except under some grant which could lawfully be made. Now, the lessors could not grant anything so as to derogate from the rights of their prior grantee. The respondent therefore was obliged to rest his case on the covenants entered into by the defendant's predecessor entitled with the grantor; and the question is, whether those covenants bring the case within the rule which says that the owner of two tenements who grants one of them cannot derogate from his own grant by any thing he does on the property which he reserves, the property granted becoming entitled to ease. ments known as easements derived by the disposition of the owner of two tenements. The plaintiff contends that though the grantor, when he made the grant under which plaintiff claims, had ceased to be the owner of the de fendant's tenement, he had a right which he could have used in such a way as to prevent the plaintiff's enjoyment of his property being interfered with in any way in which the grantor would not have been allowed to inte. fore with it if he had retained the defendant's property, and that this interest brings the case within the rule as to the owner of two tenements. It would be a novel extension of that doctrine to hold that not only the grantor cannot do anything to derogate from his own grant, but that he is obliged to take active steps to prevent other persons from doing what he might not himself do. It cannot, in my opinion, be said that a right under a covenant is properly within the meaning of this rule. Then the plaintiff says: 'You, my lessor, could, under the covenants entered into with you by your other lessee, have prevented this erection; you had and have that right; you have granted me a piece of ground with a house on it, and you ought to enforce those

covenants for my benefit.' Now, when the plaintiff took his lease he had no knowledge of the nature of the title in the adjoining property; all he knew was, that the piece of property adjoining his had once been part of the same estate; he knew nothing of the covenant; the grant to him contains no notice of it; and it would be strange to say that a man who has taken a covenant for his own benefit can be prevented from dealing with it for his own benefit because he has granted parcels of land to other people. The covenant is not mentioned in the plaintiff's lease, and it cannot have been the intention of the parties thus to restrict the use of a covenant which was entered into, not for the benefit of the owner of the estate, that he might be able to make the most of it. It would be too great an extension of the doctrine of implied obligation to raise by implication a right in the nature of an equitable assignment of the benefit of the covenant. There was no bargain as to enforcing the covenant for the benefit of the plaintiff, and we cannot imply one": Master v. Hansard, 4 Ch. Div. 718. The other lords justices concurred, in separate opinions.

JEPSON V. Killian.

[151 MASSACHUSETTS, 593.}

DECEASED CONTRACTOR-RIGHT TO SHARE IN PROFITS. If several persons secure and enter into a contract for the doing of work, and commence its performance, and then one of them dies, and the others perform the contract, they must account to the representatives of their deceased fellow-contractor for his share of the profits.

J. H. Butler, for the defendants.

H. E. Ware, for the plaintiff.

HOLMES, J. This is a bill in equity for an account, brought by the administrator of one Putterill, seeking to recover a share of the profits arising from the performance of a contract by which the deceased and the defendants undertook to put in a brick conduit and to make certain excavations for the Boston Heating Company. The answer admits the contract, and the master finds that the deceased rendered some services in securing and in performing it. But he died very shortly after it was made, and the defendants went on and did nearly all the work without his aid.

The main contention of the defendants is, that Putterill's death put an end to his interest in the contract, and that his administrator is not entitled to any part of the profits. But nothing appears in the pleadings or in the master's report to take the contract with the heating company out of the general rule that the survivors must account with the representative of their deceased fellow-contractor for his interest. It does