Tulk v. Moxhay

2 Phillips 774, 41 Eng. Rep. 1143 (1848)


In 1808, Tulk (P) sold vacant property in London called Leicester Square to Elms. P also owned several homes that formed the Square. Elms promised that no one would build on this property and that his heirs and assigns would keep and maintain the piece of land as a pleasure ground and square garden enclosed by an iron railing. The deed also held that the lawful inhabitants of the Square, which were tenants of P, on the payment of reasonable rent should have keys at their own expense and privilege be allowed to use the square and pleasure grounds. The deed also held that the grounds were to be uncovered by any buildings. Elms conveyed the property by mesne conveyances into the hands of Moxhay (D) whose deed contained no similar covenants with his vendor, but D admitted that he had purchased the land with the notice of the covenant of the 1808 deed. D had notice of the covenant but intended to build on the property anyway. P obtained an injunction against the construction of any building. D appealed.