He framed the complex question of the case as : " Can a racially restrictive covenant be enforced at law by a suit for damages against a co-covenantor who allegedly broke the covenant ? " The Court decided the answer in the negative.
12.
This is a question of the benefit running, and ever since " The Prior's case " it has been held that the covenantor is liable because of his covenant given to the owner of the dominant tenement and not because of his relationship to any servient tenement.
13.
He said in his work upon Littleton that it was " to give damages to the party grieved . " If a successor in title were not allowed to sue it would mean that the covenantor could break his contract with impunity, for it is clear that the original owner, after he has parted with the land, could recover no more than nominal damages for any breach that occurred thereafter.
14.
It is upon this principle, implicit if not expressed ( i . ) that the courts, ever since 1368, have held that a covenant made with the owner of land for its benefit can be enforced against the covenantor, not only by the original party, but also by his successors in title . ( See " The Prior's case ", which is set out by Lord Coke in his work on Littleton, at p . 384a, and in his report of " Spencer's case " ); ( ii . ) that the Courts of Common Law in the seventeenth and eighteenth centuries repeatedly enforced promises expressly made in favour of an interested person; ( See " Dutton v Poole ", approved by Lord Mansfield in " Martyn v Hind " ); ( iii . ) that Lord Mansfield held that an undisclosed principal is entitled to sue on a contract made by his agent for his benefit, even though nothing was said about agency in the contract; ( See " Rabone v Williams " cited in " George v Clagett " ); and ( iv . ) that Lord Hardwicke decided that a third person is entitled to sue if there can be spelt out of the contract an intention by one of the parties to contract as trustee for him, even though nothing was said about any trust in the contract, and there was no trust fund to be administered . ( See " Tomlinson v Gill " .)
