Drake v Gray    Sale of land – Restrictive covenants – No building scheme – Devolution of benefit of
covenants – Subsequent purchaser of part of land retained.
Testator gave his residuary estate upon trust for sale and directed his trustees to divide the
proceeds between his three sons, who took absolutely, and his two daughters, whose shares
were settled. Certain unsold realty was partitioned between the five children, and in the
partition deed all the land was subjected to certain restrictions. There was no building
scheme. The covenant imposing the restrictions was in the following form: “The trustees [to
whom the daughters’ land was conveyed] do hereby for themselves and their assigns to the
intent and so that the covenants hereinafter contained shall be binding on the lands and
premises hereby assured into whosoever hands the same may come but not so as to render the
trustees or any of them personally liable in damages for any breach thereof after he or she
shall have parted with all interest in the respective premises hereby assured covenant with the
respective parties hereto of the first second and third parts and other the owner or owners for
the time being of the remaining hereditaments so agreed to be partitioned as aforesaid and not
hereby assured that the trustees their heirs and assigns will at all times hereafter perform and
observe” etc … The plaintiff was a subsequent purchaser with notice of the covenant of a
small part of the land then conveyed to the trustees on behalf of one of the daughters.
Assuming the plaintiff was entitled to enforce against the purchaser the original covenant
there was an admitted breach of one of the restrictions:—