opinion in this case the court said: "It is contended that the defendants, by being unable to enforce the stipulation in question, only lose what they knew or were bound to know was legally null; that they have all that they supposed they were getting, namely, a promise which might be kept, though incapable of legal enforcement; and that if they were content to accept such promise, and if there is another good and sufficient consideration, they may be held upon their promise. But this argument cannot properly extend to a case where a part of an entire and inseparable consideration is positively vicious, however it might be where it was simply invalid as in Parish v. Stone.1 The law visits a contract founded on such a consideration with a positive condemnation, which it makes effectual by refusing to support it, in whole or in part, where the consideration cannot be severed.""" In a leading case before the Supreme Court of Indiana it was held that a contract by

tracts in total restraint of trade by mentioning in the contract each subdivision of the State; and when it is objected that the limits are unreasonable, it will be answered that the plaintiff seeks to enjoin the defendant from pursuing the business in only one of the cities or towns mentioned in the contract." More v. Bonnet, 40 Cal. 251; S. C., 6 Am. Rep. 621, 622. “Where an entire promise is made on one entire consideration, and part of that consideration is illegal, it may avoid the entire contract." Robinson v. Green, 3 Met. 159, 161. Where there are several considerations recited as the ground of a promise, and any of them be frivolous and insufficient or illegal, and the others are good and sufficient, then the good may be severed from the bad and the promise upheld. But if the bad be so connected with the good as to make the consideration an entirety and incapable of

severance, the whole promise is void. Webb v. Allington, 27 Mo. App. 559.

There

Parish v. Stone, 14 Pick. 198. "All the cases put are those of failure of consideration, where the consideration was single and entire, and went to the whole note, and was good and sufficient at the time the note was given, but by some breach of contract, mistake or accident, had afterwards failed. the rule is, if the consideration has wholly failed or the contract been wholly rescinded, it shall be a good defense to the note. But if he have partially failed only, it would tend to an inconvenient mode of trial, and to a confusion of rights, to try such question in the suit on the note as a partial defense, and, therefore, the party complaining shall be left to his cross-action." Ibid., p. 210.

2 Bishop v. Palmer, 146 Mass. 469, 475.

which one formerly dealing in oil in the city of H, agreed not to prosecute such business within the State of Indiana, the city of Indianapolis excepted, for the period of five years, is not divisible, and being void as to the restriction within the State, is void as to the restriction in the city of H.1 In an elaborate and well considered opinion by Chief Justice Jordan, the court said: "It is a recognized principle that when a contract is or can be so separated in parts as to constitute two agreements, one illegal and the other legal, the latter may be enforced and the transaction pro tanto sustained. But it is otherwise where the contract in its nature is not divisible. The contract before us is not of this character and does not come within the provisions of the rule stated, and it must either stand or fall as an entirety. The restraint of the trade or business as therein stipulated as to territory, was manifestly too large and is, therefore, in violation of the principles of public policy to which we have referred, and, consequently, void, and cannot in any respect be enforced." In a leading case in California, the court said: "The very essence and mainspring of the agreement, the illegal object was to form a combination among all the manufacturers of lumber at or near F, for the sole purpose of increasing the price of lumber, limiting the amount thereof to be manufactured, and to give plaintiff control of all lumber manufactured,' etc. This being the inducement to the agreement, and the sole object in view, it cannot be separated and leave any subjectmatter capable of enforcement. The good can

not be separated from the bad, or rather the bad enters into and permeates the whole contract so that none of it can be said to be good, and, therefore, the subject of an action."

§ 49. Limitations in Conveyances. It is well established that a stipulation in a deed that the land conveyed shall not be used for a specified purpose or purposes, or

1 Consumers' Oil Co. v. Nunnemacher. 142 Ind. 560; s. c., 41 N. E. Rep. 1048.

2 Consumers' Oil Co. v. Nunne

macber, 142 Ind. 560, 568; s. C., 41 N. E. Rep. 1048.

3 Mill & Lumber Co. v. Hayes, 76 Cal. 386, 393.

that it shall be used only for the particular purpose specified, is valid, and will be upheld in equity. In a leading case in Alabama, it was held that an express stipulation and reservation in a conveyance of land, part of a larger tract owned in fee by the vendor, that it shall be used as a residence only, and not for carrying on any trading or mercantile business, is not contrary to public policy, nor otherwise illegal; and a court of equity will enforce it against the purchaser, or a subpurchaser with notice, in favor of the vendor, or of a private corporation which has succeeded to his estate, although it may have no power to engage in a mercantile business.1 In a case before the New York

Court of Appeals, the court said: "The right sought to be enforced here is an easement, or, as it is sometimes called, an amenity, and consists in restraining the owner from doing that with and upon his property which he might lawfully have done, and hence is called a negative easement, as distinguished from that class of easements which compels the owner to suffer something to be done upon his property by another. Easements of all kinds may be created and exist in favor of any third person, irrespective of any privity of estate or community of interest between the parties, and in this respect there is no distinction between negative easements and those rights that are more generally known as easements, as a way, etc." It is the rule also

v. Union Ry. Co., 11 Gray, 359. G&G, as partners, owned and operated a livery stable in the town of R, as did H and also J Bros. The last named sold for merely the value thereof the personal property used in the business, a part to G & G and the remainder to H, but did not sell or lease the stable, and, in consideration of the purchase, made a written contract with them, agreeing not to engage in the business in the stable of J Bros., nor to permit others to do so, for a period of five years, and that $2,500 should be paid as liquidated damages for breach of the contract. There was a breach by act of one of the sellers, but H, having quit the business, refused to join G & G as plaintiffs, and, therefore, they made him a defendant. Held, that the written contract was upon sufficient consideration, and was valid. Johnson v. Gwin, 100 Ind. 466. Where real estate, consisting of certain lots and the buildings thereon, is sold, and in the granting portion of the deed conveying the same a clause is inserted, stating that the property is not to be used for hotel purposes for two years, it was held that such

restriction as to use of the property, being a limited one. was valid, and not an unreasonable restraint of trade. Mollyneaux v. Wittenberg, 39 Neb. 547; s. C., 58 N. W. Rep. 205. A covenant made by a vendor of real estate, that neither he nor his assigns will sell any marl from off the premises adjoining the tract conveyed, will not be enforced in equity against the alienee of the land intended to be burthened by such covenant. Such covenant should not be sustained on the ground that the principle on which alone it could rest would sanction the annexation to the land of any stipulation which human caprice might contrive. Such covenant is also illegal and void as being in general restraint of trade. Equity will enforce covenants connected with land in the hands of alienees, in some cases in which there is no legal remedy against such alienees; but such cases should not be unnecessarily multiplied. Brewer v. Marshall. 19 N. J. Eq. 537.

Trustees v. Lynch, 70 N. Y. 440, 447. "It would be unreason able and unconscientious to hold

that where a limitation in a conveyance is valid, as between the original parties, the covenant is binding upon a grantor of the covenantor, who has taken the title with notice of the restriction, and this will hold, although the assignees of the covenantor are not mentioned in the conveyance. It is not necessary that the agreement should be a covenant, technically, running with the land; it is sufficient that the purchaser has notice of it. and instructive case of Hodge v. Sloan, the court said: "Many other instances of restraint might be referred to, and where it is of such a nature as concerns the mode of occupying or dealing with the 'property purchased in the way of business operations, or even the omission of all business or certain kinds of business, or the erection or nonerection of buildings upon the property, we see no reason to doubt the validity of an agreement fair and valid in other

the grantees absolved from the covenant in equity for the technical reason assigned, that it did run with the land so as to give an action at law. A distinguished judge answered a like objection in a similar case by saying, in substance, that if an action at law could not be maintained, that was an additional reason for entertain ing jurisdiction in equity and preventing injustice. The action can be maintained for the establishment and enforcement of a negative easement, created by the deed of the original proprietor, affecting the use of the premises now owned and occupied by the defendants, of which they had notice, and subject to which they took title. There is no equity or reason for making a servitude of the character of that claimed by the plaintiffs in the lands of the defendant, an exception to the general rule which charges lands in the hands of a purchaser with notice with all existing equities, easements and serv

In the leading

itudes. The rule and its application does not depend upon the character or classification of the equities claimed, but upon the position and equitable obligation of the purchaser. The language of courts and of judges has been very uniform and very decided upon this subject, and all agree that whoever purchases lands upon which the owner has imposed an easement of any kind, or created a charge which would be enforced in equity against him, takes the title subject to all easements. equities and charges, however created, of which he has notice. Ibid., 450; citing Parker v. Nightingale, 6 Allen, 341; Cott v. Towle, L. R. 4 Ch. App. 654; Carter v. Williams, 18 W. R. 593, before V. C. James; Wolfe v. Frost, 4 Sandf. Ch. 72; Tulk v. Moxhay, 2 Phil. 774; Whiting v. Union R. Co., 11 Gray, 359; Gilbert v. Peteler, 38 Barb. 488; Barrow v. Richard, 8 Paige, 351; Greene v. Creighton. 7 R. I. 1; Brouwer v. Jones, 23 Barb. 153.