traffic, ultra vires? It is not in restraint of trade, for its express purpose and necessary effect are to increase both trade and population; not a single traveler or shipper outside the contracting party is affected in his selection of a route; the contract binds none of them.

It is not seldom those who have reaped benefits from a contract such as this seek to escape its obligation by taking refuge in that assumed turpitude which, on grounds of public policy, avoids the contract; but here, and it is a gratification to us to say it, the parties to this contract violated no law, restrained not others from engaging in business, did nothing of evil example or detrimental to public morals; therefore, there is no public policy which, in the absence of express legislative enactment, makes void this contract; as there clearly is no adequate remedy at law for repeated or continued violations of the defendant's covenants, they ought to be enforced in equity to the extent equity will take cognizance of their violation.

While the covenant to ship over plaintiffs' lines, on the faith of which plaintiffs enlarged their facilities for shipment and paid their money, will be enforced, our decree will go no further. The Central Pennsylvania railroad is a corporation, under the laws of the commonwealth, authorized to construct a line of railroad between certain terminals; its manifest duty is to construct its road for the benefit of the general public; no citizen can be restrained from giving its construction moral and material aid; public policy demands that it shall fulfill the objects 300 of its being. Admit that the officers of defendant company are giving it moral aid and encouragement because its construction will make it possible for defendants to violate their contract for shipment; this, at most, shows disregard of a moral obligation, without an infraction of the legal one, the actual shipment; the latter, equity can control; the former, it will not, both on grounds of public policy, and because its process would, to a great extent, be ineffectual. We cannot prevent men wanting to violate their contracts, while we can prevent the overt acts which constitute the breach; equity can enforce a tangible, substantial right of property under a contract, but it cannot make men good, and it is a very rare case in which it even tries to. With these defendants, however, who have pleaded, the case is different; we can restrain them from a flagrant violation of an essential covenant of their contract. The Nittany Valley Railroad Company and the Valentine Iron

Company affirmed the original contract which, in fact, gave them a business existence; they are bound to give their traffic to plaintiffs; this much of the contract is within the grasp of equity. Therefore, the decree of the court below sustaining the demurrer is reversed and set aside at costs of appellees, and it is adjudged and decreed that an injunction issue directed to the Nittany Valley Railroad Company and the Valentine Iron Company, their and each of their officers, agents, and employés, including the said J. W. Gephart, president of the Valentine Iron Company, restraining them from giving any traffic coming from or going to points upon the railroad of the said Nittany Valley Railroad Company, or coming to or going from the mines and furnaces of the said Valentine Iron Company, that may be owned or controlled by the said company, and originating upon said lands mentioned and described in agreement of the 22d of March, 1887, to the said Central Pennsylvania Railroad Company, or to any company or persons other than to the said plaintiffs. It is further ordered that the said contract be specifically performed in this respect; they, the said Nittany Valley Railroad Company and the said Valentine Iron Company are hereby ordered and directed to give all traffic coming from or going to points upon said railroad, or coming to or going from the property, mines, and furnaces of the said iron company, in so far as said traffic originates with, 301 or or is controlled by, them, the said companies, to them, the said plaintiffs, their successors or assigns. It is further ordered, this record and decree be remitted to the court below, that our order and decree may be carried into effect.

COVENANTS-ENFORCEMENT OF.-Specific performance of a personal covenant will be decreed, if it is of such a character and purpose that its performance was what was contemplated by the parties, and not mere damages for its breach: Lewis v. Gollner, 129 N. Y. 227; 26 Am. St. Rep. 516, and note. A covenant by an owner of land, to use or abstain from using it in such a manner as the other party to the contract specifies, will be enforced in equity against the grantees of the original contractors: Hodge v. Sloan, 107 N. Y. 214; 1 Am. St. Rep. 816. If a covenant of reservation is one which the parties have the right to make, the original covenantee will be entitled to the aid of a court of equity to restrain its violation as long as he likes and remains the owner of the property, although it may be a covenant personal to him, and not running with the land: Extended note to Ladd v. Boston, 21 Am. St. Rep. 485.

COVENANTS-SUCCESSORS IN INTEREST-WHEN BOUND BY. When land is sold subject to a restrictive covenant, and the language of the deed, and the situation of the land with reference to other land of the gran.or retained, are such as to make it clear that the restriction in the deed upon the use of the land sold was intended for the benefit of AX. ST. REP., VOL. L.-52

the land retained, this is held to create a negative easement, such as binds all the successors in title of the land subject to the easement, provided they have notice thereof, express or constructive: Extended note to Ladd v. Boston, 21 Am. St. Rep. 486.

RAILROADS-DISCRIMINATION.-Under a statute prohibiting unreasonable preference or advantage, a railroad corporation may lawfully enter into a contract for the carriage of goods for a particular individual or corporation at a lower rate in respect to large quantities of goods, and for longer distances than one who sends them small quantities or short distances: Hoover v. Pennsylvania R. R., 156 Pa. St. 220; 36 Am. St. Rep. 43, and note. A carrier may give reduced rates to customers agreeing to give it all their business, and refuse those rates to others who are not able or willing to so agree, provided the charges exacted from those not joining in the agreement are not excessive or unreasonable: Lough v. Outerbridge, 143 N. Y. 271; 42 Am. St. Rep. 712, and note.

CASES

IN THE

SUPREME COURT OF APPEALS

OF

VIRGINIA.

CARNEAL V. LYNCH.

[91 VIRGINIA, 114.]

PARTITION.-A LIFE TENANT OF ONE MOIETY OF LAND can maintain a suit for partition against the remaindermen of that moiety, whether in esse or not, and the owners in fee simple of the other moiety.

JUDICIAL SALE-OBJECTIONS TO TITLE.-Though the property sold has a frontage somewhat less than that stated in the notice of sale, the purchaser will not be released from his bid on that account, if there was a plat referred to in such notice as being in the commissioner's office, which showed distinctly the true frontage. If he saw this plat, he would not be relieved on proving that he did not examine it.

NOTICE.-MEANS OF KNOWLEDGE, with the duty of using them, are, in equity, equivalent to notice.

Suit in partition. The clause of the will referred to in the opinion of the court is as follows: "Sixth. I give to my two grandchildren, Wm. M. Lynch and Charles G. Lynch, children of my daughter, Martha R. Lynch, deceased, the house and lot situated at the corner of Grace and Jefferson streets, in the city of Richmond, Va., to be held by them for their joint and equal benefit during their lives, and, at the death of either of them, the share of the one so dying to pass to his issue, according to the statute of descents. Should either of my grandsons, Wm. M. and Charles G. Lynch, die without issue, the share of the one so dying to go to the surviving brother, or his issue, if any; shall both die without issue, the property named in this clause to pass to their sister, Mollie A. Lynch, or her issue, if any."

James Lewis Anderson, for the appellant.

Courtney & Patterson and Daniel Grinnan, for the appellees.

115 HARRISON, J. This is an appeal from a decree of the chancery court of the city of Richmond.

It appears from the record that Benjamin Sutton, by the sixth clause of his will, gave to his two grandsons, William M. Lynch and Charles G. Lynch, a certain house and lot on the corner of Grace and Jefferson streets, in Richmond, for their lives, with cross-remainders to their children, and, in the event of death of both without issue, then said property was to pass to their sister, Mollie A. Lynch, or her issue.

Charles G. Lynch died, leaving two children, who, under the terms of said will, are now the fee-simple owners of their father's moiety. On the twenty-seventh day of April, 1893, William M. 116 Lynch, the life tenant in one moiety of said property, filed his bill in the chancery court of Richmond, praying for a sale of this property for partition, and a reinvestment of the proceeds, and for general relief.

To this bill he makes as parties defendant, his own five children, remaindermen in his moiety, the two children of his brother Charles, fee-simple owners of their father's moiety, and his sister, Mollie A. Lynch. His children and his brother's children are all infants, and appear by guardian ad litem.

All the proceedings in the case are regular, full, and complete. The commissioner's report and the evidence fully establishes the propriety of granting the prayer of the bill. The court decreed the sale, and it was made in accordance with the terms prescribed to James D. Carneal. An upset bid was put in, and, at a second sale, said Carneal became the purchaser at eleven thousand five hundred and seventy-five dollars, and on the twenty-sixth day of June, 1893, the court entered a decree confirming said sale, but reserving to the purchaser leave to have the title examined within a reasonable time. Counsel for the purchaser examined the title, and made two objections thereto. The court overruled both objections, and on the ninth day of August, 1893, entered a decree fully confirming the sale to J. D. Carneal, and directing that he forthwith comply with the terms. It is from this decree that the case is before this court on appeal.

There are two assignments of error, which are the two objections made by the appellant to the title to the property. The first is that William M. Lynch being only a life tenant in one moiety of the land, the remaindermen of said moiety being unascertained, and the other moiety being owned in fee simple by infants, he, the said William M. Lynch, had no power in law to maintain a suit for partition and sale of the whole of said land.