#### George *W.*Stines *v.*Miles Dorman.

A stipulation in a deed of conveyance, whereby tbe graritee, in part consideration for the conveyance, agrees for himself, his heirs, and assigns that the premises conveyed shall not be used or occupied as a hotel, so long as certain other property owned by the grantor shall be used for that purpose, binds both the grantee and all claiming under him, and may, in equity, be enforced by injunction.

Motion for leave to file a petition in error to reverse the judgment of the District Court of Ashtabula county.

In March, 1878, the defendant in error, Dorman, purchased of one Blakley, a hotel known as the “ Tremont House,” situate in the village of Conneaut, and, in part payment therefor, Dorman sold to Blakley the Commercial House, theretofore used as a hotel, situate in the same village, and formerly known as the Randolph House.

The deed of Dorman to Blakley contained the following r

*“*And as a further, additional, and valuable consideration for the . above sale and conveyance, it is stipulated, contracted, and agreed that on the part of the said grantee and for himself, his heirs and representatives, and assigns, that the property and premises above described shall not be used or occupied by said grantee, his heirs, representatives, or assigns, for a hotel or public boarding-house, for the accommodation of the traveling public or transient customers, while.the property known as the Tremont House, this day sold and conveyed to this grantor, shall be kept and used for such purpose, and said grantee hereby stipulates, contracts, and agrees that the same conditions and limitations shall be made a part of and attach to all leases, transfers, or assignments by him made of said property, and further that the-said grantee will not, directly or indirectly, in said village of Conneaut, engage in the business of keeping hotel or entertaining the public for hire, and in case of failure to observe,. *581keep, and perform, on the part of the said grantee, his covenants and agreements herein made, he obligates and binds himself, his representatives or assigns, to pay this grantor ■or his legal representatives, all damages he may suffer by reason thereof.

(Signed,) “ H. Blakley.

“ To have and hold the above granted and bargained premises with the appurtenances thereunto belonging, unto the said grantee, his heirs, and assigns forever, subject however to and controlled by the limitations and conditions above written.”

Blakley afterward sold and conveyed the Commercial House, subject to the agreements and limitations contained in the deed to him, to Hiram A. Blood, who subsequently ■conveyed it to the plaintiff in error, Stines. The deed to ■Stines contained none of the agreements and limitations of the deed from Dorman to Blakley.

Stines, soon after the said conveyance to him, opened said house as a hotel, whereupon Dorman, who was still keeping the Tremont House as a hotel, brought suit, alleging in substance, in his petition, the foregoing facts and asked for an injunction restraining Stines from keeping said hotel.

The District Court,, on appeal, granted the relief prayed for; and to reverse this judgment, this proceeding is now instituted.

*W. B. Chapman,*for the motion:

The contract is in restraint of trade, and therefore can not be upheld. *Lange*v. *Michael,*2 Ohio St. 519.

Before such a contract can be enforced, it must appear from . the pleadings and proofs : 1. That the restraint is partial; 2. Founded upon a valid consideration; and, 3. That the contract was reasonable and not oppressive. *Marshall*v. *Reynolds,*1 P. Williams, 181; *Ross*v. *Sedgbur,*21 Wend. 166; *Morris Run Coal Co.*v. *Barclay,*68 Penn. St. 166; *Crawford & Murray*v. *Wick,*18 Ohio St. 190; *Keeler*v. *Taylor,*53 Penn. St. 467.

*582Clearly this agreement is void as against public policy, it being without sufficient consideration; and there being no certain fixed period to limit its operation, it may be for ten or one hundred years, and therefore is not a partial, but general restraint of trade.

This agreement the parties seemed to anticipate would not be performed on the part of Blakley, and like that of *Lange*v. *Werk,*2 Ohio St. 519, and *Thomas*v. *Miles,*3 Ohio St. 274, the parties fix the penalty and the way and manner that Dorman should be compensated in that event.

This was not such a contract as will run with the .land. It was personal between the parties contracting. "Where there is no privity of estate, and the agreement sought to be enforced is an incumbrance or burden upon the land, it does not run with the land nor bind the assignee. 108 Mass. 175; 11 Am. R. 835; 1 Smith’s Leading Cases (6 Am. ed.), 147; 3 Term, 393; Ib. 678; 16 Pick. 183; 3 Gray, 517; 2 Blackf. 201; 54 N. Y. 444; 17 Ohio, 453; 14 Ohio St. 53; 9 Ohio St. 347.

When ought an injunction to be granted? The rule I believe to be correctly stated in *Steward*v. *R. R. Co.,*14 Ohio, 358; 1 Troubat & Haly’s Practice, 88, pt. 1; 3 Watts *&*Sergeant, 199.

*Simends $ Wade,*contra:

Stines is bound by the contract contained in the deed to Blakley and is estopped from denying notice. 1 Greenleaf Ev., sec. 23 *; Mayor of Congleden*v. *Patterson,*10 East, 135; St. Andrew’s Lutheran Church Appeal, 67 Penn. St. 512 ; *Clark*v. *Martin,*49 Penn. St. 289. And as to constructive notice: 1 Story’s Equity Jur. 431-433; 2 Washburn on Real Prop. 630; 50 Barb. 139; 54 N. Y. 35; 38 Barb. 514; 41 N. Y. 442; 101 Mass. 531; Ib. 513. 106 Mass. 313; 6 Allen, 341.

On contracts in restraint of trade, see 2 Ohio St. 519; 56 Penn. St. 194.

*583White, J.

We find no error in the judgment of the District Court.

It is unnecessary to determine whether the stipulation contained in the deed in question is to be regarded, technically, as a covenant running with the land. However this may be, it has, in equity, the effect of such covenant as against the grantee and his assigns.

The stipulation relates to the mode in which the premises conveyed are to be enjoyed, and qualifies the estate. This limitation on the use enters into the consideration of the ’ conveyance; and if not unlawful, it ought, upon plain principles of justice, to be enforced.

The law does not prohibit a grantor from imposing limitations or restrictions on the estate, nor does it require the grantee to take a greater interest than he purchases. If the effect of the stipulation is not to accomplish an illegal purpose, it is lawful; and where it affects the land or the mode of its enjoyment, its effect is to bind all deriving title under the conveyance in which the restriction is found.

That similar stipulations and restrictions in conveyances have been enforced, both as against the grantee and his assigns, is abundantly shown by the authorities. *Barrow*v. *Richard,*8 Paige, 351; *Whiteman*v. Gibson, 9 Simons, 96; *Western*v. McDermott, 2 Law R. Ch. Ap. 72; *Wilson*v. *Hart,*1 Law R. Ch. Ap. 463; *Tulk*v. *Moxhay, 2*Ph. Ch. *774; Atlantic Dock Co.*v. *Leavitt,*54 N. Y. 37.

It is claimed in argument that the restriction is void as being in restraint of trade.

This claim can not avail. It is not a contract in general restraint of trade, but is limited in its application to a specific parcel of real property, and forbids its use to a particular business.

The consideration is sufficient, for the restriction formed a material part of the consideration by which the property was obtained, and, under the circumstances, must be regarded as reasonable and not oppressive.

In regard to the claim that the plaintiff’s remedy is by action for damages, it is sufficient to say the remedy sug*584•gested is inadequate. The cause of action is continuous, and the nature of the damages such as not to be susceptible •of proper assessment by a jury.

*Leave refused.*

McIlvaine, C. J., Welch, Rex, and Gilmore, JJ., concurred.