ance to Bovell, Denison had mortgaged all that remained to him of Bellevue, as well as the land sold to Dr. Bovell, to the Canada Permanent Building and Savings Society to secure a large sum of money. The portion purchased by Dr. Bovell was released by the Company when sold to him, but the remaining land, including the alleged square, was subsequently sold by the society under the power of sale contained in their mortgage to one F. W. Coate, and conveyed to him by indentures bearing date respectively August 9th and November 10th, 1866.

In the year 1868, one Shirley Denison, son of the defendant Denison, purchased back from Coate the portion of the land so sold to him which had constituted the family residence of the Denisons; and on the occasion of the marriage of the said Shirley Denison in 1869, he conveyed this land to his father.

The defendant Denison strove to shew also on his own unsupported parol evidence that though this conveyance from his son was absolute in form, it was really subject to certain trusts in favour of his (defendant's) daughters.

In the year 1870, the defendant Denison, when about to contract a second marriage, by deed dated April 30th of that year, reconveyed about half of the land to his said son, and one John H. Wiun, on certain trusts in favour of his daughters, amongst whom was the defendant Ellen L. Denison.

By indenture of June 8th, 1871, Bovell conveyed the land by the indenture of August 15th, 1860, conveyed to him, to the plaintiffs Salter VanKoughnet and Agnes VanKoughnet for valuable consideration.

Shirley Denison having previously died, J. H. Winn, the surviving trustee under the last mentioned deed, and in pursuance of its trusts, on September 21st, 1880, conveyed to the said Ellen L. Denison the land upon which the house complained of in this suit was being erected.

On October 30th, 1880, Ellen Louisa Denison entered into an informal agreement in writing with the defendant Ellen Winn, a spinster, whereby she agreed to lease the

land so conveyed to her for a term of years, and Ellen Winn went into possession of the said land, and began the erections complained of.

The other defendants, James Browne, Laura K. Browne, and Edith M. Denison, had also, since the making and registration of the above mentioned conveyance of August 15th, 1860, acquired and at the time of suit held a title to some parts of what the plaintiff alleged and sought to shew to be the "Bellevue Square," affected by the restrictive covenant in question.

The defendants Denison and Ellen Winn sought to shew amongst other things acquiescence and delay, as a defence against the plaintiffs' claim, on the ground that Bovell lived on the land now claimed by the plaintiffs for several years after the execution of the deed to him of August 15th, 1860, and during that time had full knowledge that the land, called by the plaintiffs Bellevue Square, was being divided into lots and sold for building purposes, but never objected to such building or complained of it in any way.

To shew the position of the land in question, the plaintiffs produced at the hearing a general map of the city of Toronto, published in the year 1857, which is the plan referred to in the judgment. Amongst other letters and documents produced at the hearing was a letter, dated March 26th, 1872, from the plaintiff Salter VanKoughnet, to the defendant R. B. Denison, or Major Denison as he is there called. This letter is specially referred to by His Lordship, and was as follows:

"TORONTO, March 26, 1872.

"MY DEAR MAJOR,-Understanding that you have it in contemplation to alien portions of the remaining part of the old Bellevue estate still under your control, I think it right to remind you, as you must have forgotten it, of the covenant contained in your conveyance to Dr. Bovell (whose title has passed to me) that the plot in question was always to remain unbuilt upon, except one residence with the necessary out-buildings, including Porter's Lodge. This no doubt has escaped your memory. Yours, etc., "S. J. VANKOUGHNET."

45-VOL. I O. R.

On the back of this letter there was an endorsement which is set out in the judgment.

The defendants in the first instance demurred to the statement of claim, and the hearing on demurrer is reported 29 Gr. 485.

The case now came on for hearing and examination of witnesses on May 3, 1882, at the Spring Sittings, at Toronto, when judgment was reserved.

Maclennan, Q. C., for the plaintiffs. The defendant Denison having given a covenant, was bound to pay off the mortgages on the property so as to protect the covenant. The writing of October 30, 1880, is not under seal, and is merely an agreement, and does not put Ellen Winn in the position of a purchaser for value without notice: Tulk v. Moxhay, 11 Beav. 571; S. C. 22 Phill. 774.

Blake, Q. C., for the defendants. The evidence of the defendant R. B. Denison shews that he took the deed of 1869 in trust for the benefit of the family; the reason of the transaction should be considered; why did the son buy at all? The so-called covenant does not run with the land; it is merely a personal matter, and the word "assigns" is not used in it; it is only an undertaking that so long as the defendant R. B. Denison had the property it should not be built upon: Wilson v. Hart, L. R. 1 Ch. 463; Keates v. Lyon, L. R. 4 Ch. 218. Bellevue Square" was never dedicated, and is too indefinite: City of Toronto v. McGill, 7 Gr. 462. The plaintiffs are estopped by the conduct of Bovell, and by their own. If Bovell did not choose to come to the Court promptly, a subsequent purchaser is in no better position; and the plaintiff's have waited till the house was erected before coming to the Court.

He also referred to McQueen v. Farquhar, 11 Ves. 478; Roper v. Williams, 1 T. & R. 18.

Black, on the same side. There is no evidence within the Statute of Frauds to identify the locus in quo; Stretton v. Stretton, 24 Gr. 20; McLean v. McKay, L. R. 5 P. C. 327, 335. The plaintiff takes after conveyance made to the

trustees for the children. He also referred to Otter v. Lord Vaux, 2 K. & J. 650; S. C. 6 DeG. M. & G. 638; Dart on V. & P., 5th ed., p. 37; Haywood v. Brunswick Benefit Building Society. 51 L. J. N. S. (Q. B. D.) 73.

One

Maclennan, Q.C., in reply. In order to constitute an express covenant, the law does not require any precise or technical language: Platt on Covenants, pp. 27, 28; Haywood v. Brunswick Benefit Society, ubi supra. violation of a covenant does not preclude a plaintiff from asking relief; there has been here no acquiescence: Gaskin v. Balls, L. R. 13 Ch. D. 325. The deed is registered, and it should be assumed that the clause was also registered, and if so it was notice to all.

He also referred to Mann v. Stephens, 15 Sim. 377; Patching v. Dubbins, Kay 1; Lord Manners v. Johnson, L. R. 1 Ch. D. 673; Coles v. Simes, Kay 67; Western v. McDermott, L. R. 2 Ch. 72; Van Wagner v. Findlay, 14 Gr. 53.

May 10th, 1882. BOYD, C.-The undertaking or agreement, which need not be in any particular form, appears on the face of the conveyance to Dr. Bovell, and that imports that the benefit of the restriction was to be enjoyed by the owners for the time being of the land conveyed, as being attached to that land for its protection and advantage. See Keates v. Lyon, L. R. 4 Ch. 225, 226, and Renals v. Cowlishaw, L. R. 11 Ch. D., 868, (per James, L. J.)

Here, moreover, we have the evidence of the plaintiff, which shows that when he contracted to purchase from Dr. Bovell he was largely influenced by the restrictive clause, and it was used by his vendor as an inducement for him to buy. This evidence is further corroborated by the letter written by plaintiff S. J. VanKòughnet to defendant Denison in less than a year after his purchase, calling Mr. Denison's attention to the fact of the existence of this stipulation, which the plaintiff supposed he was about to infringe. As laid down by Hall, V. C., in Renals v. Cowlishaw, L. R. 9

Ch. D. 129," a purchaser may be entitled to the benefit of a restrictive covenant entered into with his vendor by another, where his vendor has contracted with him that he shall be the assignee of it, that is, have the benefit of the covenant, and such covenant need not be expressed, but may be collected from the transaction of sale and purchase."

Here also is a restrictive covenant entered into by Dr. Bovell as to his use of the land, which binds it in the hands of the plaintiff, and in such cases the Court favours the holding of these mutual engagements as involving reciprocal rights: Western v. Macdermott, L. R. 1 Eq. 499 and 2 Ch. 72.

1 hold, therefore, that the benefit of the restriction passed to the purchaser of the land, as one of the advantages and privileges appurtenant to it, though the word "assign” is not there, and although the benefit of it was not formally transferred to the plaintiff.

The next question is, does the restriction relate to a particular and defined portion of land? Prima facie the description, "Bellevue Square," is sufficient to justify the reception of parol evidence to explain what was meant. As said by Lord Cottenham in Ricketts v. Turquand, 1 H. L. C. 472-490: "Here is a term which includes more or less land, according to what was meant by the term used, and all we are in search of is, the particular meaning of the expression which is used."

The general rule as to this kind of explanatory evidence is thus stated by Parke, J., in Doe dem. Templeman v. Martin, 4 B. & Ad. 785: "All facts relating to the subject matter, and object of the devise, such as that it was or was not in the possession of the testator, the mode of acquiring it, the local situation and the distribution of the property, are admissible to aid in ascertaining what is meant by the words used in the will." Or, as put by the same Judge when Lord Wensleydale in a case in the House of Lords of Baird v. Fortune, 7 Jur. N. S. 926, the condition of the property may be shewn and all circumstances necessary to place the Court in the position of the parties, so as to enable the Court to judge of the meaning of the instrument.