The proceedings by injunction to enforce the specific performance of a covenant, it is necessary for the complainant to show that he is beneficially interested in the performance of the covenant. general rule is that the complainant is not entitled to an injunction in any case unless it is shown that he has some vested right or interest that will suffer irreparable injury from the act which he seeks to restrain. Branch Turnpike Co. v. Board of Sup'rs of Yuba Co., 13 Cal. 190; Bank of California v. Fresno Canal & Irrigation Co., 53 Cal. 201, 203; City of New York v. Mapes, 6 Johns. Ch. 46; High, Inj. (3d Ed.) § 9. But there is a distinction to be observed, in enforcing covenants, between a case where the complainant seeks to prevent or abate a nuisance, and a case where the complainant has an interest or title to real estate, in favor of which there is a covenant securing a privilege or right binding in equity. In the latter case it is said that the covenantee has the right to have the actual enjoyment of his property modo et forma, in accordance with the stipulation in that behalf, and that it is no an swer to say that the act complained of will inflict no injury upon him. 2 High, Inj. § 1153; 1 Beach, Inj. § 480; Kirkpatrick v. Peshine, 24 N. J. Eq. 216. But in such case it is clear that the complainant must show that he has some interest or title in the land to be protected. This right or interest is the very foundation of his action. He must show that he is the owner of or has an interest in the premises in favor of which the benefit or privilege has been created; otherwise, he has no interest in the covenant and is a mere intruder. In Parker v. Nightingale, 6 Allen, 341, 83 Am. Dec. 632, the suit was brought by the plaintiff in behalf of himself and 11 others, each the owner of a dwelling house and lot on a certain street in Boston, to restrain the defendant Nightingale, another house and lot owner on the same street, from converting his dwelling house into a restaurant. The bill set forth that, before the erection of the said dwelling houses, the land upon and adjoining the street designated belonged to one Hayward; that upon his decease his heirs agreed among themselves that the land should be divided into house lots, and, when conveyed, the grantees should take subject to the condition that no buildings should be erected thereon except for dwelling houses. A lot was conveyed to the defendant upon such condition. Defendant leased the premises to another, who had taken steps to convert the dwelling house into a restaurant. Plaintiffs sought an injunction against such use of the premises. The court, through Bigelow, C. J., said: "A court of chancery will recognize and enforce agreements concerning the occupation and mode of use of real estate, although they are not expressed with technical accuracy, as exceptions or reservations out of a grant not binding as covenants real running with the land. Nor is it at all material that such stipulations should be binding at law, or that any privity of estate should subsist between parties, in order to render them obligatory, and to warrant equitable relief in case of their infraction. A covenant, though in gross at law, may nevertheless be binding in equity, even to the extent of fastening a servitude or easement on real property, or of securing to the owner of one parcel of land a privilege, or, as it is sometimes called, ‘a right to an amenity,' in the use of an adjoining parcel, by which his own estate may be enhanced in value or rendered more agreeable as a place of residence." After a further statement of the principles involved, it was held that the plaintiffs were entitled to equitable relief in the enforcement of the restriction contained in the conveyance to the defendant, as owners of the estates for whose benefit the restriction was originally designed; that the purpose of the restriction was to secure to each estate the benefit or advantage which would arise from the specific mode in which the adjoining premises were to be improved and occupied, giving a right or privilege of amenity in each lot within the restriction to the owners of all the other lots within the designated limits. The question arose in this case whether the original grantors were not necessary parties to the proceedings. Upon this question the court said: "In strictness, perhaps, the right or interest created by the restrictions, being a qualification of the fee, did not pass out of the original grantors, and now remains vested in them or their heirs. But, if so, they hold it only as a dry trust, in which they have no beneficial use or enjoyment, the entire usufruct being in their grantees and their assigns now holding the estates, for whose use and benefit it was intended. Such being the case, then the latter are proper parties to enforce the restriction, and the former, not having any present interest in it, need not be parties to the proceeding." This is the precise question in the present case, and determines that the complainant, having no present interest in the enforcement of the covenant under consideration, has no right of action against the defendants. In Sanborn v. Rice, 129 Mass. 387, 396, there was a bill to enforce certain restrictions contained in conveyances by a common grantor. Concerning such a restriction the court said: "It often happens that owners of land, which they design to put into market in lots for dwelling houses, insert in the deeds of the several lots a uniform set of restrictions as to the purposes for which the land may be used, and as to the portions of it which may be covered by buildings. So far as these restrictions are reasonable in their character, they are upheld and enforced by courts of equity in favor of the original owner, so long as he continues to own any part of the tract for the benefit of which the restrictions were created, as well as in favor of the owner of any one of the lots into which the tract was divided, and against the owner of any of the lots who attempts to set the restrictions at naught." In Clark v. Martin, 49 Pa. 289, each grantee of adjoining lots had covenanted not to build on the rear portion of his premises above a certain height. The complainant had become the purchaser of a lot adjoining that which the defendant had bought, subject to the condition, and it was held that he was entitled to an injunction against a violation of the covenant on the ground that the condition was imposed for the benefit of such adjoining lot. The court declared it to be plain "that the duty created by the condition and restriction is a duty to the owner of the adjoining lot, whoever he might be." In Watrous v. Allen, 57 Mich. 362, 24 N. W. 104, the grantor conveyed premises with the condition that, if spirituous or intoxicating liquors should be sold or kept for sale on the granted premises, the title to the premises should revert to and vest in the grantor, his heirs and assigns. The condition was treated as a covenant, and enforced by injunction in favor of the assignee of the grantor, on the ground that the restriction was inserted in the deed for the benefit of the grantor as the owner of the land and of lots in the vicinity contiguous to the granted premises, and that whatever rights, interests, and benefits the grantor had by virtue of the restriction belonged to the complainant. In Whitney v. Railway Co., 11 Gray, 359, 71 Am. Dec. 715, it was held that plaintiff's right to equitable relief in the enforcement of a restriction as to the use of certain premises was because she was the owner and occupier of a part of the estate for the benefit and advantage of which the restriction was imposed, and therefore had a present right and interest in its enforcement. In Graves v. Deterling, 120 N. Y. 447, 24 N. E. 655, the plaintiffs sought to recover possession of certain property upon the ground that the abandonment of its use as a park worked a forfeiture, and that they, as heirs of the grantor, were entitled to the reversionary title. The court construed the restriction in the deed of conveyance as securing a benefit of the grantors and their heirs by way of forfeiture or reversion, and that, as the whole title to the park and the contiguous lots passed from plaintiffs' ancestor in his lifetime, they inherited no right to either, and, having title to neither the park nor to any land for the benefit of which the park was created, they had no foundation upon which to base an action. In these and other cases that might be cited, where the complainant has maintained his right to the remedy by injunction, he has shown that he had some interest or estate to protect for the benefit of which the covenant had been created. In the last case cited, the complainants failing to show such an interest, the complaint was dismissed upon the ground that the complainants had no right or interest upon which an action could be founded. And in reason and principle this must be the rule upon the subject. In general terms, the benefit of a condition in a grant is reserved to the grantor and his heirs without regard to the ownership of other property; but, where the grant contains a restriction in the nature of a covenant that has relation to a benefit to adjoining property, the restriction can only be enforced in favor of the title to such adjoining property. In the case at bar it is alleged in the bill that complainants and others were the owners of large tracts of land adjoining the city of Los Angeles, including the land in question; that representatives of the proposed university urged upon the complainants the donation. of a tract of land for part of the campus of the university, setting forth the many benefits that would accrue to the owners of land in the vicinity of such an institution, in drives, walks, trees, shrubs, and flowers, college buildings, residences for professors, and in the many sales of lots of land that would be made to those preferring homes amid refinement and culture, where their children could have the advantages of a Christian education; and in furtherance of such plans, and to assist in the establishment of said university, many subscriptions of money and land were thus solicited and received from the owners of land in the vicinity of said campus, and to this purpose complainants and others, relying upon these representations, agreed to subscribe and did subscribe, as a gift, the land in question, to be used exclusively as a campus for said proposed uni versity. But the complainants do not show in their bill, and it is not shown by affidavit or otherwise, that they are now the owners of or have any interest in any lands in the vicinity of the university buildings or the campus connected therewith, but, on the contrary, it is averred upon information and belief, in one of the affidavits, that the complainants have no such interest. The inference is, therefore, that the complainants are not in any way interested in the benefit arising from the restriction or limitation placed upon the granted estate by the terms of the covenant contained in the deed, and that the complainants will not be damaged by the failure of the defendants to comply with the terms of the covenant. They are therefore not in a position to maintain this action. We are of the further opinion that it does not appear that the proposed explorations for oil on the land in question will be a substantial violation of the restriction contained in the covenant under consideration. The educational institution now upon the premises is to be continued, and the proposed operations upon the tract of land now in use as a campus will probably be of a temporary character. The general purpose of the original grant will not be defeated, but may be materially advanced in the pecuniary results to be derived from the development of the wealth supposed to be under the surface of the land. The interlocutory decree will therefore be reversed, and the bill dismissed. (107 Fed. 819.) FOURTH NAT. BANK OF ST. LOUIS et al. v. ALBAUGH et al. No. 1,455. NATIONAL BANK-PERSONALTY OF DECEASED PRESIDENT-CONFLICTING CLAIMS -CONTEST WITH RECEIVER-CROSS-EXAMINATION OF PARTY-EFFECT-RIGHT TO CONTRADICT WITNESS-ADMISSIONS. In a contest between the receiver of a national bank and creditors of its deceased president as to the right to personalty transferred by the latter to the vice president by three several bills of sale, the creditors claimed the property under two of the bills, as having been executed for their security; and their claim was supported by the vice president, who was made a party to the cause, and claimed to be the president's surety as to the creditors in question. The receiver claimed under the third and earlier bill, which he averred was made in favor of the vice president, as trustee, to secure a large sum owed the bank by the president. To sustain the claim of the creditors, the vice president was called to prove the execution and delivery of the bills on which they relied, and the attending circumstances. Held that, the bill on which the receiver relied having been produced and identified on the cross-examination, it was competent for the receiver to inquire concerning its purpose, without making the vice president his own witness in any such sense as to be concluded by his statements, and hence the receiver was not precluded from thereafter showing admissions by the vice president in support of the receiver's claim, though contradicting statements made on the cross-examination. Held, further, that the admissions made by the vice president were competent as against the creditors, because they could only claim the fund in right of the vice president, in whose favor two of the bills of sale were executed, on the principle of subrogation. Appeal from the Circuit Court of the United States for the District of Kansas. This is a controversy between Morton Albaugh, receiver of the First National Bank of Emporia, Kan., on the one hand, and the Fourth National Bank of St. Louis, Mo., and the First National Bank of New York and F. Harvey on the other, respecting the ownership of a certain fund now in the possession of said receiver. The controversy arises in this way: When a receiver was appointed for the First National Bank of Emporia the two banks aforesaid (hereafter referred to as the "St. Louis Bank" and the "New York Bank") held notes amounting to about $40,000 which were either made or indorsed by C. S. Cross and William Martindale. Harvey also held a note for $10,000 which was signed by Cross and indorsed by Martindale. Cross was president of the First National Bank of Emporia, but he committed suicide about the time that the bank was placed in the hands of a receiver. Martindale was vice president of the bank. Cross was the owner of a large amount of unincumbered live stock and personal property on what was known as his "Sunny Slope Farm," near Emporia, Kan. After the death of Cross, and on or about November 16, 1898, Martindale, as is claimed, took possession of the property, doing so, as it is also claimed, under and by virtue of the following bills of sale, which had been executed by Cross in his lifetime: "For and in consideration of one dollar and other valuable considerations, the receipt of which is hereby acknowledged, I do hereby sell, transfer, and assign to W. Martindale, as trustee, all my personal property of every kind and description, and wheresoever located, except the contents of my house where I am now living, in Emporia, Lyon county, Kansas, and excepting all my policies of life insurance. This sale does not include the notes pledged to my mother for the indebtedness I owe her, amounting to $8,375 and interest, which does not include this $4.500 Davis and Cross note. The property which I transfer to the said Martindale is partially described as follows: All my live stock, cattle, hogs, and horses now on Sunny Slope farm, Lyon county, Kansas, together with all other personal property thereon or on farms adjoining; also all notes, stocks, and bonds and mortgages, excepting, as before stated, those securing my indebtedness to my mother, Sue S. Cross. The said Martindale, as trustee, is first to protect H. C. Whitley and himself upon a certain bond in the Lyon county court. After that, he is to pay himself for any paper upon which he and I are mutually makers or indorsers. The balance, if any, to be paid the First National Bank of Emporia, Kansas, for all matters I owe them. Given under my hand and seal this 15th day of July, 1898. C. S. Cross." "Emporia, Kansas, Nov. 15, 1898. "For one dollar and other valuable consideration, the receipt of which is hereby acknowledged, I hereby sell, transfer, and assign unto W. Martindale and his assigns all my right, title, and interest to the following personal property, located in Emporia township, Lyon county, Kansas, and upon what is known as 'Sunny Slope Farm,' and the leased lands thereunto contiguous; all my cattle, horses, and hogs; all feed, implements, hay, grain, etc.; and all other personal property located thereon, whether specifically described hereon or not. Given under my hand and seal the date above written. "C. S. Cross." Prior to the execution of the aforesaid instruments, and on March 4, 1898, Cross had executed another bill of sale in favor of Martindale, which was as follows: "Bill of Sale of Personal Property. "Know all men by these presents that in consideration of one dollar and other valuable considerations, the receipt of which is hereby acknowledged, I do grant, sell, transfer, and deliver unto W. Martindale, as trustee, his heirs, executors, administrators, and assigns, the following goods and chattels, viz.: All of my personal property, of every kind and description, and wherever located, with the exception of my personal effects, insurance policies, and the contents of my house in Emporia, Lyon county, Kansas, to have and to hold, |