Dumoulin v. Burfoot

Dumoulin v. Burfoot

The covenant extended to the whole property south of Wellesley Street including the parcel fronting on Amelia Street because the land was undivided and any part of it constituted a portion of a lot fronting on Wellesley or Sumach streets within the deed's description; vendors could not subdivide to narrow the operation of the covenant.

Citation
(1893) 22 SCR 120
Parties
Appellants (defendants): John Philip Dumoulin and Others, Rector, etc.; Respondent (plaintiff): George Burfoot
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
1 May 1893
Procedural Posture
Appeal Contract / On Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario
Outcome
Appeal dismissed with costs.
Legal Topics
Restrictive Covenants, Sale of Land, Construction of Deed, Building Restrictions, Subdivision and Notice
Source Language
English
Contract Property Equity Restrictive Covenants Sale of Land Construction of Deed Building Restrictions Subdivision and Notice

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Parties

John Philip Dumoulin and Others, Rector, etc.

Appellants (defendants)

George Burfoot

Respondent (plaintiff)

Procedural Posture

Appeal Contract / On Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario

Legal Issues

  1. 1 Whether the restrictive covenant in the deed extended to the parcel fronting on Amelia Street which did not literally front Wellesley or Sumach streets
  2. 2 Whether land not subdivided into lots can be treated as portions of lots fronting on named streets for covenant purposes
  3. 3 Whether vendors could subdivide or convey parcels so as to avoid obligations in their deed

Ratio Decidendi

The covenant extended to the whole property south of Wellesley Street including the parcel fronting on Amelia Street because the land was undivided and any part of it constituted a portion of a lot fronting on Wellesley or Sumach streets within the deed's description; vendors could not subdivide to narrow the operation of the covenant.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.
  • Clause 5 of the trial judgment varied to direct a reference to ascertain damages occasioned by the defendants' breach of the covenant in their deed (damages to be for breach, not for erection of buildings).