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 3 1924 018 770 127 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31 92401 87701 27 
 
A TREATISE 
 
 ON 
 
 COVENANTS WHICH RUN WITH LAND 
 
 OTHER THAN 
 
 COVENANTS FOR TITLE 
 
 BY 
 
 HENRY UPSON SIMS 
 
 Of the Birmingham (Ala.) Bar 
 
 CHICAGO 
 CALLAGHAN & COMPANY 
 
 1901 
 
COPYEIGHT, 1901 
 
 BY 
 
 CALLAGHAN & COMPANY 
 
TO 
 
 JOHN CHIPMAN GRAY, ESQ., LL.D. 
 
 OF THE Boston Bar 
 
 ROYALL PROFESSOR OF LAW IN 
 
 HARVARD UNIVERSITY 
 
 THIS ESSAY IS DEDICATED, WITH HIS CONSENT, IN GRATEFUL RECOGNITION OF 
 
 HIS EFFORTS IN AIDING THE AUTHOR AND HIS FELLOW STUDENTS 
 
 TO AN UNDERSTANDING OF THE LAW OF REAL PROPERTY 
 
PREFACE. 
 
 For a long while there was a general impression in this 
 country that the power to charge real property with the 
 burden of agreements affecting its use would be very unfor- 
 tunate, as it must hamper the transmission of land, and op- 
 erate as an impediment to commerce. And where such 
 agreements are incautiously made, there is much to support 
 the opinion that they are dangerous. But in recent years, 
 it has become evident that the free changing of property 
 and the shifting of titles, which it was formerly so plausibly 
 desired to advance, has worked in some instances more hard- 
 ship than where its exchange is rendered more difficult. As 
 cities increased in number and size, and land and building 
 came to involve great sums of money, it began to appear 
 that the continued use of property in a particular locality 
 for the same purpose was a very important element in the 
 value and desirability of an investment. It became impor- 
 tant as well to the public in making outlays in local improve- 
 ments, as to the individuals who expended their money upon 
 the confidence that their buildings could have a permanent 
 use for the purpose for which they were built. Thus later in 
 the building of new towns of great promise, and in the build- 
 ing of great houses in old towns, it became desirable to have 
 some guaranty that the uses to which localities were assigned 
 should be permanent. 
 
 The importance of these matters was recognized long ago 
 in old countries, and their laws grew into a shape pretty well 
 calculated to effect justice. But in America nearly all local- 
 ities were so new, and land was so plentiful, that there was 
 
 v 
 
Tl PEEFACE. 
 
 little appreciation of the importance of permanency in real 
 property values until irreparable damage was suffered. 
 
 It is apparent that our legal profession has been too little 
 mindful of the relation between the principles upon which 
 the law of real property rests and the principles governing 
 the agreements which may be entered into by property-hold- 
 ers to affect their possessions. But with a former commercial 
 antipathy to the existence of any connection between agree- 
 ments and the use of property, lawyers and judges have not 
 had much occasion to inform themselves upon the questions 
 involved; and their overlooking them is not surprising. 
 Moreover, the law has been very difEcult to study, as early 
 American precedents were rare, and the early English law 
 was in great confusion owing to the various interpretations 
 put upon yet older English authorities. 
 
 While there were several means through which the old 
 law affected the use of property by agreement of the par- 
 ties, — sometimes by stipulations or conditions, sometimes by 
 the reservation or granting of easements, sometimes by for- 
 mal agreements called covenants, — all but covenants were 
 by nature so limited in their scope that they were of little 
 service to carry out what the parties often desired. Cove- 
 nants, therefore, for more than a hundred years have been 
 used in English law to express the purposes of the parties; 
 and at once the question became very important how far 
 these covenants could attach to the land so as to bind those 
 who were successors in title to the property-holders who made 
 the agreements. 
 
 The law upon covenants that run with land in all recent 
 times has been acknowledged to be in a very chaotic state; 
 and it is with a view to seeing what it was historically, that 
 this work has suggested itself. The author has come to be- 
 lieve that covenants are properly used to affect property in 
 the hands of successors to the titles of covenanting parties, as 
 well where the land is burdened as where the land is bene- 
 
PEEFACE. Vii 
 
 fited; and that the modem English doctrine supported by 
 some American courts, greatly curtailing the running of the 
 burdens of covenants, is probably based upon a misinterpre- 
 tation of the Common Law. 
 
 It is therefore desired to convince the reader that covenants 
 should run more broadly with the land than was conceived 
 by the learned editors of Smith's Leading Cases in their 
 notes to Spencer's Case; and after showing that the Ameri- 
 can law generally sustains a broader running of covenants, 
 to add some historical reasons for the soundness of the Amer- 
 ican decisions. 
 
 It is not pretended that these chapters shall present ex- 
 haustive research into the depths of the law. Such a labor 
 the reader will hardly think necessary. ISTor would he be 
 warranted in giving time to the following of such a pursuit 
 except in the wake of great scholars. It would seem neces- 
 sary, however, to examine the law ourselves through the de- 
 cisions in the Year Books, as this seems never to have been 
 done for us. But for the early law that brought about these 
 decisions, it is enough to rely upon the conclusions gath- 
 ered by such writers of the early day as Bracton, or better, 
 those gathered by such students of the present day as Sir 
 Frederick Pollock, Mr. Maitland, or Mr. Justice Holmes. 
 Indeed the collateral work of such scholars can hardly be 
 overvalued even in the study of later decisions; for one 
 should be ever mindful that the decisions as we have them 
 from the time of King Edward the First are mere sum- 
 marized statements which are to be compared rather by their 
 general drift than by their line of reasoning. They are 
 more useful than our own decisions because they are of a 
 time nearer the rise of the principles, and so likely to con- 
 tain them; but the judges who made those decisions were 
 often more ignorant of the sources of the law than we are 
 to-day. Even the great Bracton, writing about the middle of 
 the thirteenth century, came long enough after the law had 
 
Till PREFACE. 
 
 begun to crystallize to make grave mistakes in its course, to 
 say nothing of his tendency to throw over the vs^hole a too 
 great shadow of the Eoman law caught in his study of the 
 works of Azo of Bologna, the great Italian master of Civil 
 and Canon Law. 
 
 It has seemed unavoidable to ask the reader to examine the 
 Tear Books himself as far back as Edward the First; for 
 Coke, the chief author on whom we generally rely, has given 
 way to an ever ready tendency to invent reasons for what he 
 found to be strange, however inaccurately they approached 
 what has been found to be the historical truth, and since his 
 day the decisions and commentaries have done little more 
 than reflect his comments. To one writer on the history of 
 covenants, however, the reader will find himself indebted for 
 very great assistance. Mr. Justice Holmes in his invaluable 
 lectures on "The Common Law" has given us a theory of 
 covenants running with the land leading to a conclusion 
 which cannot be far from the truth. But the lectures of 
 course were not intended to be of much use to the practitioner, 
 and so serve only as a basis for farther work. 
 
 As the running of covenants is primarily a question of 
 common law, rather than of equity, and as the American 
 courts have gone farther than the English in allowing the 
 operation of covenants at common law, more space has been 
 given to the investigation of their status in common law 
 courts. But for the aid of any persons seeking the law in 
 jurisdictions confining the rights to equity, the English 
 doctrine of equitable easements has been discussed; and in 
 either branch a collection of all the cases has been attempted. 
 
 Moreover for the sake of completeness, a chapter on cove- 
 nants in leases and their operation under the Statute of 32 
 Henry VIII, Chapter 34, has been inserted. 
 
 The author acknowledges helpful criticism from Mr. John 
 Chipman Gray and from Mr. James De Witt Andrews. 
 
 Birmingham, Alabama, July 4, 1900. 
 
CONTENTS. 
 
 PAGE 
 
 Preface, ........ v 
 
 List of Abbeeviations, ..... xl 
 
 Table of Cases, ...... xvii 
 
 Inthodtjotion, . . . . . . . .11 
 
 CHAPTER 
 
 I. — ■Dbfinitions, . . . . . . .17 
 
 11.^ — The Pbinciples of Common Law Wakeantt which 
 
 CoNTKOL Running Coybnants, . . .33 
 
 III. — Origin of Covenants which Run with Land, . . 45 
 
 IV. — The Law of Covenants down to the Statute op 33 
 
 Henrt VIII, . . .... 58 
 
 V. — The Statute of 32 Henry VIIX, Chapter 34, and its 
 
 Effects, ... ... 71 
 
 VI. — Covenants in Leases, . . 83 
 
 VII. — The Running of Benefits and Burdens with Pee 
 
 Estates in Modern Law, .... 134 
 
 I. — Benefits of Covenants, .... 135 
 
 II. — Burdens of Covenants, .... 140 
 
 VIII. — The Parties Affected by Covenants in Modern Law; 
 
 and, iNCIDBNTAiLY, OF THE EXTINGUISHMENT OF COVE- 
 NANTS, ....... 174 
 
 IX. — Of the Several Requirements of Covenants, . . 188 
 
 §1. — Of Seals, and the Running of Parole Agree- 
 ments AND Stipulations for the Grantees in 
 Deeds-Poll, ...... 188 
 
 §2. — Of the Necessity of a Grant between the 
 Parties; and of the Separate Execution of 
 THE Covenant Near the Time of Such Grant, 195 
 §3. — Of the Character of the Grant, whether of 
 
 Corporeal or Incorporeal Hereditaments, . 198 
 §4. — Of the Matter of Covenants, . . . 303 
 
 §5. — Of the Necessary Wording of Covenants and 
 THBiB Construction; and of the Naming of 
 the Parties, ..... 203 
 
 ix 
 
X CONTENTS. 
 
 CHAPTER PAGE 
 
 X. — Of the Classes of Covenants most Fbeqttently Oc- 
 
 CUBBING, .... . . 309 
 
 §1. — Covenants as to the Maintenance of Fences 
 
 AND Walls and Mill-Dams, . . . 311 
 
 §2. — Covenants as to the Building and Use of 
 
 Pabtt-Walls, . , . . .214 
 
 §3. — Covenants as to the Leaving Open of Wats 
 
 AND Pabks, . . . . . .220 
 
 §4. — Covenants Compelling ob Eesteicting Build- 
 ing TO A Pabticulab Line, . . 224 
 §5. — Covenants Eestbictinq the Kinds of Uses of 
 
 Peopeety in a Pabticulab Locality, . . 227 
 
 XI. — Enfobcement of Covenants in Equity and Equitable 
 
 Easements, ..... 231 
 
 XII. — Of Omitted Mattebs, and Concluding Suggestions, . 365 
 
 Appendix A. — Fobm fob Pakty-Wall Agreement. (1) Whebb 
 
 it is Cebatbd Simultaneously with a Geant of 
 
 Land between the Paetibs. (2) Wheee theeb is 
 
 no Gbant of Land between the Pabtibs, . . 367 
 
 Appendix B. — Fobm fob any Common Covenant which Euns 
 
 WITH Land, ...... 272 
 
 Index, . . . . . . . . .275 
 
nST OF ABBEEVIATIONS. 
 
 ENGLISH AND IRISH REPORTS. 
 
 A. C- Api)eal Cases, House of Lords and Privy 
 
 Council. 
 
 A. & E Adolphus & Ellis, Queen's Bench. 
 
 Amb Ambler, Chancery. 
 
 Atk _ Atkyns, Chancery. 
 
 B. & AM Barnwall & Alderson, King's Bench. 
 
 B. & B Broderlp & Bingham, Common Pleas. 
 
 B. & C ».... Barnwall & Cresswell, King's Bench. 
 
 B. & S Best & Smith, Queen's Bench. 
 
 Bing. N. C Bingham's New Cases, Common Pleas. 
 
 Bridgman's Judgmentsj 
 
 (Sir Orlando) Common Pleas. 
 
 Brooke, Abr. Cov Brooke's Abridgment of Year Books, sub- 
 ject of Covenant. 
 
 Brooke, Ass _- Brooke's Assizes. 
 
 Brooke, Gar Brooke's Abridgment, subject of War- 
 ranty. 
 
 Brooke, N. C Brooke's New Cases. 
 
 Brooke, Vouch Brooke's Abridgment, subject of Vouch- 
 ers. 
 
 Brownl - Brownlow's Reports (early). 
 
 Bulst Bulstrode's Reports (early). 
 
 C. B ». Common Bench, Common Pleas. 
 
 Oh Law Reports, Chancery. 
 
 Ch. '9—, or [189—] Ch Law Reports [189—], Chancery. 
 
 Ch. D Chancery Division. 
 
 Chitty Chitty, King's Bench. 
 
 C. M. & R -. - Crompton, Meeson & Roscoe, Exchequer. 
 
 C. & M Crompton & Meeson, Exchequer. 
 
 Co Coke's Reports, Queen's Bench. 
 
 Comb Comberwell (early). 
 
 C. P. D Law Reports, Common Pleas Division. 
 
 Cro. Car - Croke's Reports under Charles L 
 
 Cro. Bliz Croke's Reports under Elizabeth. 
 
 Cro. Jac Croke's Reports under James L 
 
 xi 
 
Xll LIST OF ABBEEVIATIOJSrS. 
 
 D. & L Drury & Lowndes. 
 
 De G. M. & G De Gex, Macnaughten & Gordon, Chan- 
 cery. 
 
 Doug. . „ Douglas, King's Bench. 
 
 Dyer Dyer (early). 
 
 East East, King's Bench. 
 
 E. & B Ellis & Blackburn, Queen's Bench. 
 
 Eq _ Law Reports, Equity, Chancery. 
 
 Eq. Cas. Abr Equity Cases Abridged (early). 
 
 Ex Exchequer Reports. 
 
 Fitz. Abr ».. Pitzherbert's Abridgment of the Year 
 
 Books. 
 
 Hardres Hardres' Reports (early). 
 
 H. Bl Henry Blackstone, Common Pleas. 
 
 H. & N. Hurlston & Norman, Exchequer. 
 
 H. L. C House of Lords Cases. 
 
 Hob Hobart's reports (early). 
 
 Ir. '9—, or [189—], Ir , Irish Reports. 
 
 Ir. C. L., N. S Irish Common Law, New Series. 
 
 Jones Ir. Eq Jones' Irish Equity, Chancery. 
 
 Kay ~ Kay, Chancery. 
 
 Keen Keen, Chancery. 
 
 Keilway Keilway's Reports (early). 
 
 Lev Levinz's Reports (early). 
 
 L. J. Ch Law Journal Reports, Chancery. 
 
 Lofft Lofft's Reports. 
 
 L. R. C. P Law Reports, Common Pleas. 
 
 L. R. Ex_ Law Reports, Exchequer. 
 
 Ij. R. Q. B Law Reports, Queen's Bench. 
 
 L. Raym Lord Raymond, King's Bench and Com- 
 mon Pleas. 
 
 M. & K Milne & Keen, Chancery. 
 
 Mod Modern Reports (early). 
 
 Moore Moore's Reports (early). 
 
 M. & Sel Maule & Selwyn, King's Bench. 
 
 M. & W Meeson & Welsby, Exchequer. 
 
 P. C »Law Reports, Privy Council. 
 
 Phill Phillips, Chancery. 
 
 PoUexfen Pollexfen's Reports (early). 
 
 Q. B Queen's Bench Reports. 
 
 Q. B. '9—, or [189—], Q. B.Law Reports [189—], Queen's Bench. 
 
 Q. B. D Queen's Bench Division. 
 
 Roll Rolle's Reports (early). 
 
 Salk Salkeld's Reports (early). 
 
 Sim Simon, Chancery. 
 
 Sim. & Stu Simon & Stuart, Chancery. 
 
LIST OF ABBEEVIATIONS. Xlll 
 
 T. R Durnford & East's Term Reports, King's 
 
 Bench. 
 
 Tyr Tyrwhitt, Exchequer. 
 
 Ves. or Ves. Jr Vesey, Junior, Chancery. 
 
 Vern Vernon's Reports (early). 
 
 Wils Wilson's Reports. 
 
 Wms.' Saund Sergeant Williams' Edition of Saunders' 
 
 Reports (early). 
 
 W. R. '93 [1893], Weekly Reporter. 
 
 Y. B Year Books, Reports Under the Early 
 
 English Kings. 
 Y. & C Younge & Collyer, Equity Cases in the 
 
 Exchequer. 
 
 AMERICAN REPORTS. 
 
 Abb. N. C Abbott's New Cases, New York. 
 
 Ala Alabama Reports. 
 
 Allen Allen's Reports, Massachusetts. 
 
 Ark _ Arkansas Reports. 
 
 Atl. Rep Atlantic Reporter. 
 
 Barb Barbour's Reports, N. Y. Law. 
 
 Barb. Ch Barbour's Reports, Chancery, N. Y. 
 
 Blkf Blackford's Reports, Indiana. 
 
 Brad Bradwell's Reports, Illinois. 
 
 Browne Browne's Reports, Penna. 
 
 Bush Bush's Reports, Kentucky. 
 
 Cal California Reports. 
 
 Clark Clarke's Reports, New York. 
 
 Clark., Ch Clarke's Reports, Chancery, N. Y. 
 
 Comst Comstock's Reports, N. Y. 
 
 Conn Connecticut Reports. 
 
 Cow Cowen's Reports, N. Y. 
 
 Cr. C. C Cranch's U. S. Circuit Ct. Reports. 
 
 Curtis Curtis' U. S. Circuit Ct. Reports. 
 
 Cush Cushing's Reports, Mass. 
 
 Dall Dallas' Reports, U. S. Supreme Ct. 
 
 Daly Daly's Reports, New York. 
 
 D. & B Devereux &. Battle's Rep. Nor. Car. 
 
 E. D. Smith E. D. Smith's Reports, New York. 
 
 Edw. Ch Edwards' Chancery Reports, New York. 
 
 Fed. Rep , . Federal Reporter. 
 
 Fla Florida Reports. 
 
 Ga Georgia Reports. 
 
 G. & J Gill & Johnson's Reports, Maryland. 
 
 Gray Gray's Reports, Mass. 
 
XIV LIST OF ABBREVIATION'S. 
 
 Halst Halstead's Reports, New Jersey. 
 
 Harrington Harrington's Reports, Delaware. 
 
 Heisk Heiskell's Reports, Tennessee. 
 
 Hilton Hilton's Reports, New York. 
 
 How Howard's Reports, U. S. Supreme Court. 
 
 How. Pr Howard's Practice Reports, N. Y. 
 
 Hump Humphrey's Reports, Tenn. 
 
 Hun Hun's Reports, New York. 
 
 Ill Illinois Reports. 
 
 111. App Illinois Appeals Reports. 
 
 Ind , Indiana Reports. 
 
 Ind. App Indiana Appeals Reports. 
 
 Iowa Iowa Reports. 
 
 J. & S Jones & Spencer's Reports, N. Y. 
 
 Johns Johnson's Reports, N. Y. 
 
 Kan Kansas Reports. 
 
 Ky Kentucky Reports. 
 
 La. Ann Louisiana Annual Reports. 
 
 Lea Lea's Reports, Tennessee. 
 
 Mass Massachusetts Reports. 
 
 Md _ Maryland Reports. 
 
 Me Maine Reports. 
 
 Met Metcalf s Reports, Mass. 
 
 Mich Michigan Reports. 
 
 Minn Minnesota Reports. 
 
 Miss Mississippi Reports. 
 
 Mo Missouri Reports. 
 
 Mo. App Missouri Appeals Reports. 
 
 N. C North Carolina Reports. 
 
 Neb Nebraska Reports. 
 
 N. E. Rep North Eastern Reporter. 
 
 Nev Nevada Reports. 
 
 N. H ..New Hampshire Reports. 
 
 N. J. L New Jersey Law Reports. 
 
 N. J. Eq New Jersey Equity Reports. 
 
 N. Y New York Reports. 
 
 N. Y. St. Rep New York State Reporter. 
 
 N. Y. Super. Ct New York Superior Ct. Reports. 
 
 N. Y. Supp New York Supplement. 
 
 0. C. C ...Ohio Circuit Ct. Reports. 
 
 0. Dec Ohio Decisions. 
 
 0. St Ohio State Reports. 
 
 Ont Ontario Reports. 
 
 Pac. Rep Pacific Reporter. 
 
 Paige Paige's Reports N. Y. Chancery, 
 
 Pa Pennsylvania Reports. 
 
LIST OF ABBEEVIATIONS. XV" 
 
 Pa. Co. Ct Pennsylvania County Ct. Reports. 
 
 Pa. Dlst. Ct. ._ Pennsylvania District Ct. Reports. 
 
 Pet Peters' Reports, U. S. Supreme Ct. 
 
 Pick Pickering's Reports, Mass. 
 
 Phila Philadelpliia Reports. 
 
 Rawle ». Rawle's Reports, Penna. 
 
 R. I Rhode Island Reports. 
 
 Rich Richardson's Reports, So. Car. 
 
 Sandf Sandford's Reports, New York. 
 
 S. & R Sergeant & Rawle's Reports, Penna. 
 
 S. C _ South Carolina Reports. 
 
 S. W. Rep South Western Reporter. 
 
 Taylor Taylor's Reports, Nor. Car. 
 
 Tex Texas Reports. 
 
 Th. Cas Thompson's Cases, Tenn. Chancery. 
 
 U. S United States Supreme Ct. Reports. 
 
 U. S. App._ United States Court of Appeals Reports. 
 
 Va Virginia Reports. 
 
 Vt '. Vermont Reports. 
 
 Wall Wallace's Reports, U. S. Supreme Ct. 
 
 Wash. C. C Washington's U. S. Circuit Ct. Reports. 
 
 W. & S Watts & Sergeant's Reports, Penna. 
 
 Wend Wendell's Reports, New York. 
 
 Wis Wisconsin Reports. 
 
 Wkly. Law Bui Weekly Law Bulletin, Ohio. 
 
 W. N. C Weekly Notes of Cases, Penna. 
 
 Wright Wright's Reports, Ohio. 
 
 W. Va West Virginia Reports. 
 
 Yates Yates' Reports, Penna. 
 
 TEXT BOOKS. 
 
 Bac. Abr Bacon's Abridgment of the Law. 
 
 Bl. Com -. . Blackstone's Commentaries on the Laws 
 
 of England. 
 
 Bract Bracton de Legibus et Consuetudinibus 
 
 Anglise. 
 
 Co. Lit Coke's Institutes, or Commentaries upon 
 
 Littleton. 
 
 Com. Dig., Vouch Comyn's Digest of the Laws of England, 
 
 under subject of Voucher. 
 
 F. N. B Fitzherbert's Natura Brevium. 
 
 Fleta seu Commentarius Juris Anglicanl. 
 
 Glan Glanville de Legibus. 
 
 Gray Cas. Prop Gray's Cases on the Law of Real Prop- 
 erty. 
 
XVI LIST OF ABBEEVIATIOlSrS. 
 
 Hist. Eng. Law History of Early English Law, Pollock 
 
 and Maitland. 
 
 H. C. L ,The Common Law, Holmes. 
 
 Kent Com Kent's Commentaries. 
 
 Lit Littleton's Tenures of England. 
 
 Note Book Bracton's Note Book. 
 
 Pol. & Mait History of English Law, Pollock and 
 
 Maitland. 
 
 Rawle Covts Rawle's Covenants for Title. 
 
 Shep. Touch Sheppard's Touchstone. 
 
 Smith, L. C Smith's Leading Cases, edited. 
 
 Sugden V. & P The Law of Vendors and Purchasers, Sug- 
 
 den (Lord St. Leonards). 
 Vin. Abr. Sup Supplement to Vlner's Abridgment. 
 
 GENERAL. 
 
 Hil Hilary Term of the English Courts. 
 
 Mich Michaelmas Term of the English Courts. 
 
 R. S Revised Statutes. 
 
 S. C ....Same Case. 
 
TABLE OF CASES. 
 
 Page 
 
 Ackerman v. Shelp, 3 Halst 125 23 
 
 Adams and Kensington Vestry (Re), 24 Ch. D. 199, 27 idem. 394.. 113 
 
 Adams v. Van Alstyne, 25 N. T. 232 213 
 
 Aldridge v. Feme, 17 Q. B. D. 212 ,. 113 
 
 Allen V. Dickinson, 9 Q. B. D. 632 113 
 
 Allen V. Wooley, 1 Blkf. 149 95, 100 
 
 Allenspach v. Wagner, 9 Col. 127 114 
 
 Almy V. Greene, 13 R. I. 350 93 
 
 Andrew v. Aitken, 22 Ch. D. 218 244 
 
 Andrew v. Walcott, 16 Barb. 21 86, 126n 
 
 Andrus v. St. L. Smelting Co., 130 U. S. 643 , 19 
 
 Angus V. Dalton, 3 Q. B. D. 85 22 
 
 Armstrong v. Wheeler, 9 Cow. 88 95 
 
 Astor V. Hoyt, 5 Wend. 603 113, 125 
 
 Astor V. Miller, 2 Paige 68 , 125 
 
 Atlantic Dock Co. v. Leavitt, 54 N. Y. 35 195, 195n, 249 
 
 Attoe (Alton) v. Hemming, 2 Bulst. 281 99, 106 
 
 Atty. Gen. v. Dean and Canons of Windsor, 8 H. L. C. 391 13 
 
 Austerberry v. Oldham, 29 Ch. D. 750 136, 147, 241, 243, 244, 246 
 
 Avery v. Ry., 106 N. Y. 142 137n, 157, 169, 207, 223, 244 
 
 Baehelour and Gage's Case, Cro. Car. 188 93 
 
 Baddeley v. Vigurs, 4 E. & B. 71 132 
 
 Badger v. Boardman, 16 Gray 559 206n, 249 
 
 Bailey v. Richardson, 66 Cal. 416 95, lOSn, 114, 132, 133 
 
 Bailey (Bally) v. Wells, 3 Wils. 25 107, 200 
 
 Bailie v. Rodney, 27 Wis. 172 114 
 
 Bale V. Horton, Vaughan 360 39 
 
 Bald Eagle Valley Ry. v. Nittany Valley Ry., 171 Pa. 284 
 
 137n, 150, 169, 177, 206n, 244, 247, 259 
 
 Baltimore v. White, 62 Md. 362 _ 162, 223 
 
 Barclay v. Raine, 1 Sim. & Stu. 449 136, 143 
 
 Barker v. Damon, 3 Mod. 337 59, 82, 83, 84 
 
 Barron v. Richard, 3 Edw. Ch. 96 137n, 251 
 
 Barrow v. Richard, 8 Paige 359 155 
 
 Batley v. Foederer, 3 Pa. Dist. Ct. 167 150, 172 
 
 2 xvii 
 
XVlll TABLE OF CASES. 
 
 Page 
 
 Beach V. Barons, 13 Barb. 305 112 
 
 Beamish v. Beamish, 9 H. L. C. 274 13 
 
 Bean v. Stoneman, 104 Cal. 49 137n, 163, 206n 
 
 Beardman v. Wilson, L. R. 4 C. P. 57 96 
 
 Bedford (Duke of) v. British Museum, 2 M. & K. 552 236, 261 
 
 Bery v. White, Sir 0. Bridgman's, Judg. 82 117 
 
 Bickford v. Parsons, 5 C. B. 920 87 
 
 Bimson v. Bultman, 3 App. Div. 198 249, 251 
 
 Birmingham Can. Co. v. Cartwright, 11 Ch. D. 421 187, 239 
 
 Bishop Y. Quintard, 18 Conn. 395 201 
 
 Blackmore v. Boardman, 28 Mo. 420 -. 110 
 
 Blooh V. Isham, 28 Ind. 37 159, 219 
 
 Blount V. Harvey, 6 Jones 186 208 
 
 Bonetti v. Treat, 91 Cal. 223 84, 93, 183 
 
 Book of Entries, 32 - 49 
 
 Bouscaren v. Brown, 40 Neb. 422 93 
 
 Bowdre v. Hampton, 6 Rich. 208 85 
 
 Bowes V. Law, 9 Eq. 636 239, 255 
 
 Bradford Oil Co. v. Blair, 113 Pa. 83 lOSn, 114 
 
 Bradley v. Walker, 14 N. Y. Supp. 315 197, 201, 206n, 247, 255 
 
 Bream v. Dickerson, 2 Hump. 126 108n, 114 
 
 Brett (Sir J.) v. Cumberland, 3 Bulst. 363 51 
 
 Brett (Sir J.) v. Cumberland, 1 Roll. 359 240 
 
 Brew V. Van Deman, 6 Heisk, 433 163, 176, 223, 245 
 
 Brewer v. Marshall, 18 N. J. Eq. 377, 19 id. 537. .167, 176, 230, 248, 256 
 
 Brewster v. Kidgill, 12 Mod. 166 141,199 
 
 Bricker v. Grover, 10 Phila. 91 248, 255 
 
 Bridges v. Lewis, 3 Q. B. 603 _. 87 
 
 Bright V. Hutton, 3 H. L. C. 388 13 
 
 Brinkley v. Hamberley, 67 Md. 169 94 
 
 Brolasky v. Hood, 6 Phila. 193 Ill 
 
 Bronson v. Coffin, 108 Mass. 175, 118 id. 156 
 
 152, 153, 160n, 172, 177, 201, 208, 211, 212, 213 
 
 Brooke, Abr., Gov. 32 65, 67, 106 
 
 Brooke, Ass. 22 39 
 
 Brooke, Gar. 23 40 
 
 Brooke, N. C. 95n _ 178 
 
 Brooke, Voucher 71 33 
 
 Brookes v. Smith, Tho. Cas. 226 108n 
 
 Buckerldge v. Ingram, 2 Ves. Jr. 664 272 
 
 Buckley's Case, 11 Co. 48 51 
 
 Buckworth v. Simpson, 1 C. M. & R. 834 87, 89 
 
 Budd V. Marshall, 5 C. P. D. 481 113 
 
 Burnett t. Lynch, 5 B. & C. 589 94 
 
 Butler V. Archer, 12 Ir. C. L., N. S. 104 147n, 199n 
 
TABLE OF CASES. XIX 
 
 Page 
 
 Oalder v. Chapman, 52 Pa. 359 129n 
 
 Caledonian Rys. v. Walker's Trustees, 7 A. C. 275 13 
 
 Callard v. Callard, Moore 687 237 
 
 Callen v. McDonald, 79 Ala. 96 114 
 
 Calvert v. Bradley, 16 How. 580 _ 125 
 
 Camp V. Scott, 47 Conn. 366 99 
 
 Carley v. Lewis, 24 Ind. 23 95n, 159 
 
 Carson v. Percy, 57 Miss. 97 137, 137n, 164, 168, 177, 206n, 246, 255 
 
 Carter v. Williams, 9 Eq. 678 238, 249, 254 
 
 Charless v. Froebel, 47 Mo. App. 45 94n 
 
 Chicago Attachment Co. v. Davis Mac. Co., 25 N. B. Rep. 669 111 
 
 Child V. Douglas, Kay 560, 5 De G. M. & G. 739 238, 244 
 
 Childs V. Clark, 3 Barb. Ch. 52 84, 95 
 
 Chipman v. Emeric, 5 Cal. 49 Ill 
 
 Chudleigh's Case, 1 Co. 122b 176 
 
 Church of Incarnation v. Williams, 5 Pa. Co. Ct. 641 149 
 
 Cincinnati v. Springer, 23 Wkly. Bui. 250 136n, 206n 
 
 Clark V. Clark, 17 Nev. 124 75 
 
 Clark V. Dewey, 124 N. Y. 120 206n 
 
 Clark V. Martin, 49 Pa. 289 137n, 206n, 247, 259 
 
 Clement v. Burtis, 121 N. Y. 708 158, 172, 230 
 
 Clement v. Putnam, 68 Vt. 285 159, 248 
 
 Clements v. Welles, 1 Eq. 200 113 
 
 Coburn v. Goodall, 72 Cal. 498 93 
 
 Cockson V. Cock, Cro. Jac. 125 112, 202 
 
 Coghlin V. Barker, 46 Mo. App. 54 166, 206n, 248, 2'55, 261 
 
 Cole V. Hughes, 57 N. Y. 444 156, 219 
 
 Coles V. Sims, Kay 56, 5 De G. M. & G. 1 238, 254 
 
 Collamer v. Kelley, 12 la. 319 75, 96 
 
 Collins V. Plumb, 16 Ves. 434 136, 143, 204 
 
 Columbia College (Trustees of) v. Lynch, 47 How. Pr. 273 
 
 158, 176, 197, 245, 248 
 
 Columbia College (Trustees of) v. Thatcher, 87 N. Y. 311 261 
 
 Conduitt V. Ross, 102 Ind. 166 159, 160, 202, 21'8, 219 
 
 Congham v. King, Cro. Car. 221 98 
 
 Congleton v. Pattison, 10 East 130 109, 112, 115n 
 
 Conover v. Smith, 17 N. J. Eq. 57 108n 
 
 Conrad v. Smith, 5 W. N. C. 402 149, 177, 200, 206n 
 
 Consol. Coal Co. v. Peers, 39 111. App. 453, 166 111. 361 93 
 
 Consumers' Ice Co. v. Bixter, 84 Md. 437 84n 
 
 Cooke V. Chilcott, 3 Ch. D. 694 146, 243, 254 
 
 Coppinger v. Armstrong, 4 111. App. 637 114 
 
 Cornish v. Stubbs, L. R. 5 C. P. 334 89 
 
 Coudert t. Sayre, 19 Atl. Rep. 190 167, 206n, 248, 258, 261 
 
XS TABLE OF CASES. 
 
 Page 
 
 Countryman v. Deck, 13 Abb. N. C. 110 
 
 137n, 158, 190, 194, 206ii, 213, 245 
 
 Cowell V. Springs Co., 100 U. S. 55 21 
 
 Cox V. Bishop, 8 De G. M. & G. 815 240 
 
 Craig V. Summers, 47 Minn. 189 96 
 
 Crater v. McCormicIi, 4 Col. 197 202, 218 
 
 Graveling v. Dehart, 54 N. J. L. 338 93 
 
 Crawford v. Witherbee, 77 Wis. 419 110, 161, 206n. 
 
 Cro. Eliz. 24 ,.106 
 
 Cro. Jac. 218, 6 40 
 
 Cronin v. Watkins, 1 Tenn. Ch. 119 - 92, lOSn 
 
 Crosse v. Raw, L. R. 9 Ex. 209 113 
 
 Curtiss V. White, Clark Ch. 389 137n, 206n 
 
 Cuthbertson v. Irving, 4 H. & N. 742 127 
 
 Cutter V. Williams, 3 Allen 196 137n, 152, 198 
 
 Dailey v. Beck, 4 Clark 58 137n, 150, 168, 206ii 
 
 Damb v. Hoffman, 3 E. D. Sm. 361 93 
 
 Dana v. Wentworth, 111 Mass. 291 178, 250, 251 
 
 Daniel v. Stepney, L. R. 7 Ex. 327, L. R. 9 Ex. 185 241 
 
 Dartmouth College v. Clough, 8 N. H. 22 98, 99 
 
 Davidson v. Cox, 11 Neb. 250 124 
 
 Deane v. Caldwell, 127 Mass. 242 93 
 
 DeGray v. Monmouth Beach &c. Co., 15 N. J. Eq. 329 167, 248, 257 
 
 Demarest v. Willard, 8 Cow. 206 96 
 
 Denman V. Prince, 40 Barb. 213 155, 197, 198, 206n, 214 
 
 Dewey v. Dupuy, 2 W. & S. 553 93 
 
 Dey V. Prentice, 90 Hun 27 137n, 158, 206n, 207, 223 
 
 Dexter v. Beard, 7 N. Y. Supp. 11, 130 N. Y. 549. . . .137n, 158, 206n, 24g 
 
 Divan v. Loomis, 68 Wis. 180 247 
 
 Doe V. Bettison, 12 East 305 110 
 
 Doe V. Dean of Windsor, 5 Co. 25 112 
 
 Doherty v. Allman, 3 A. C. 709 113 
 
 Dolph V. White, 12 N. Y. 296 114 
 
 Donelson v. 'Polk, 64 Md. 501 84, 95, 97 
 
 Dorsey v. Ry., 58 111. 65 108n, 160, 206n, 213 
 
 Drake v. La Coe, 157 Pa. 17 85, 95 
 
 Duffey V. Ry., 2 Hilton 496 158 
 
 Dumpors Case, 4 Co. 119 Ill 
 
 Dunbar v. Jumper, 2 Yates 74 137n, 149, 206n. 
 
 Dunn v. Barton, 16 Fla. 765 99n 
 
 Dyer 14, 69 105 
 
 Dyer 114 , 105 
 
 Dyer 343b, 55 , 40' 
 
 Dynevor (Lord) v. Tennant, 32 Ch. D. 420, 13 A. C. 279 132 
 
TABLE 05 CASES. XXl 
 
 Page 
 
 Easterby v. Sampson, 9 B. & C. 505 112 
 
 Eaton V. Jacques, 2 Doug. 455 124, 125 
 
 Egremont (Earl of) v. Keene, 2 Jones Ir. Eq. 307 200 
 
 Electric City Co. v. West &c. Co., 41 Atl. Rep. 458 151n 
 
 Elliott V. Jolinson, L. R. 2 Q. B. 120 88 
 
 Ely V. Hergesell, 46 Mich. 325 ^... 86 
 
 Evans v. Cook, 11 Nev. 69 75 
 
 Everett v. Remington, '92, 3 Ch. 148 238, 255 
 
 Ewre V. Strickland, Cro. Jac. 240 240 
 
 Fagg V. Dobie, 3 T. & C. 96 97, 183 
 
 Fennell v. Guffey, 139 Pa. 341 114 
 
 Fisher v. Lewis, 1 Clark 428 76, 149, 182, 200 
 
 Fitch V. Johnson, 104 111. Ill 20, 137n, 160, 201, 206n, 214 
 
 Fitzherberts, Abr., Cov. 21, 24, 26, 27, 29 46 
 
 Fitzherberts, Abr., Cov. 27 47 
 
 Fitzherberts, Abr., Cov. 30 ., 62 
 
 Fleetwood v. Hull, 23 Q. B. D. 35 113 
 
 Fletcher v. McParlane, 12 Mass. 431 93 
 
 Forbes v. Moffiatt, 18 Ves. 384 , 133 
 
 Frederick v. Callahan, 40 la. 311 108n, 114 
 
 Fresno Canal Co. v. Dunbar, 80 Cal. 530. . . .163, 172, 176, 181, 201, 206n 
 Friery Brew. &c. v. Singleton, '99, 1 Ch. 86 92n 
 
 Garton v. Gregory, 3 B. & S. 90 114 
 
 Georgia So. Ry. v. Reeves, 64 Ga. 462 162, 194, 201 
 
 Gerzebeck v. Lord, 33 N. J. L. 240 95 
 
 Gibson v. Holden, 115 111. 199 115, 160, 202, 206n, 217, 218, 223 
 
 Gibson v. Porter, 15 S. "W. Rep. 871 163 
 
 Giddings v. Smith, 15 Vt. 344 77 
 
 Gilmer v. Mobile &c. Ry., 79 Ala. 579, 85 id. 422 164, 169, 197 
 
 Glover v. Cope, 3 Lev. 326 87, 107 
 
 Glover v. Wilson, 2 Barb. 264 85, 95 
 
 Goldsworth v. Knights, 11 M. & W. 337 126, 127n 
 
 Goudy V. Goudy, Wright 410 166, 247 
 
 Graves v. Deterling, 120 N. Y. 447 137n, 157, 206n, 207 
 
 Green v. Canby, 24 Md. 127 161 
 
 Green v. Creighton, 7 R. L 1 137n, 159, 176, 206n, 226 
 
 Greenaway v. Hart, 14 C. B. 340 120 
 
 Greenleaf v. Allen, 127 Mass. 248 , 93 
 
 Grey v. Cuthbertson, 2 Chitty 282 107 
 
 Guentzer v. Juch, 4 N. Y. Supp. 39. . .137n, 158, 172, 181, 202, 206n, 218 
 Guinzburg v. Claude, 28 Mo. App. 258 84 
 
 Halford v. Hatch, 1 Doug. 183 99 
 
XXll TABLE OF CASES. 
 
 Page 
 
 Hall V. Box, 18 W. R. 820 239, 244, 255 
 
 Hall V. Ewin, 37 Ch. D. 74 113 
 
 Hall V. Geyer, 14 O. C. C. 229 166, 195, 202, 218, 249 
 
 Halle V. Newbold, 69 Md. 265 162, 169, 172, 230, 253ii, 255 
 
 Hamm v. Water Co., 30 Minn. 185 137n, 197 
 
 Hammond v. Ry., 16 S. C. 569 207 
 
 Hansen v. Meyer, 81 111. 321 108n 
 
 Harkins v. Doran, 15 Atl. Rep. 928 247 
 
 Harley v. King, 2 C. M. & R. 18 97 
 
 Harper v. Burgh, 2 Lev. 206 , 52 
 
 Harris v. Frank, 52 Miss. 155 98 
 
 Harris v. Goslin, 3 Harring. 338 108n, 114 
 
 Harrison v. Good, 11 Bq. 338 239, 244, 255 
 
 Harsha v. Reid, 45 N. Y. 415 172, 197 
 
 Hart V. Lyon, 90 N. T. 663 157, 202, 206n, 218 
 
 Hartley v. Hodson, 4 C. P. D. 367 113 
 
 Hartung v. Witte, 59 Wis. 285 108n, 161, 207, 213 
 
 Harvey v. McGrew, 44 Tex. 412 99 
 
 Hatcher v. Andrews, 5 Bush 561 163, 172, 230 
 
 Hayes v. N. Y. Goldmining Co., 2 Col. 273 74, 86, 110, 198 
 
 Haynes v. Ry., 38 Hun 17 158, 248 
 
 Hayward v. Bldg. Soc, 8 Q. B. D. 403 146, 199, 240, 242, 243 
 
 Hazlett V. Sinclair, 76 Ind. 488 137n, 160, 176, 206n, 213 
 
 Heidorn v. Wright, 6 Ohio Dec. 315 255, 256 
 
 Hemingway v. Fernandes, 13 Sim. 228 112 
 
 Hendrix v. Hickson, 69 Mo. App. 197 93 
 
 Herbaugh v. Zentmyer, 2 Rawle 159 149, 206n 
 
 Herbert v. Dupaty, 42 La. Ann. 343 114 
 
 Hickey v. Ry., 36 N. E. Rep. 672 166, 191, 206n 
 
 Hills V. Miller, 3 Paige 254. . . .156, 171, 176, 197, 198, 223, 247, 249, 259 
 
 Hilton V. Ry., 25 Mo. App. 322 166 
 
 Hines v. Ecker, 34 Mo. App. 650 Ill 
 
 Hinze v. Thomas, 7 Md. 346 84, 95, 97 
 
 Hobart, 31, 13 40 
 
 Hodge V. Sloan, 107 N. Y. 244 206n, 248 
 
 Holder v. Taylor, Brownl. 23 51 
 
 Holmes v. Buckley, 1 Eq. Cas. Abr. 27 243 
 
 Holmes v. Seller, 3 Lev. 305 51 
 
 Hooper v. Clark, L. R. 2 Q. B. 200 112 
 
 Home's Case, Y. B. 2 H. IV, 6 17n, 54, 57, 63, 64, 65, 67, 69, 197 
 
 Home V. Miller 136 Pa. 640 150, 168, 197, 202, 218 
 
 Hotley V. Scot, LofCt 316 118 
 
 Hottell V. Farmers' &c. Ass., 53 Pac. Rep. 327 166, 230 
 
 Houldsworth v. Glasgow Bank, 5 A. C. 317 13 
 
 Howard Mfg. Co. v. Water Lot Co., 53 Ga. 689 162, 214, 226 
 
TABLE OF CASES. XXlll 
 
 Pago 
 
 Huddell (Re), 16 Fed. Rep. 373 86 
 
 Huling V. Chester, 19 Mo. App. 607 165, 202, 206ii, 218, 219 
 
 Humble v. Langston, 7 M. & W. 517 94 
 
 Hunt V. Danforth, 2 Curt. C. C. 592 114 
 
 Hunt V. Gardine, 53 N. J. L. 530 93 
 
 Huntingdon (Lord) v. Mountjoy, 4 Lev. 147 50 
 
 Hurd V. Curtis, 19 Pick, 459 151, 175, 197 
 
 Hurley v. King, 2 C. M. & R. 18 182, 183 
 
 Hurst V. Rodney, 1 Wash. C. C. 375 149, 194 
 
 Hyde v. Dean & Canons of Windsor, Cro. Eliz. 552 106, 204, 240 
 
 Indianapolis Water Co. v. Nulte, 126 Ind. 373 159 
 
 Isherwood v. Oldenow, 3 M. & Sel. 396 84, 85, 118 
 
 Jay V. Richardson, 31 L. J. Ch. 398 238 
 
 Jeffries v. Jeffries, 117 Mass. 184 154, 172, 194, 251 
 
 Jeffrey v. Neale, L. R. 6 C. P. 240 113 
 
 Jennings v. Alexander, 1 Hilton 154 99 
 
 Jewell V. Lee, 14 Allen 145 206n, 249, 251 
 
 Johnson v. Bates, 16 J. & S. 180 108n, 114 
 
 Johnson v. Sherman, 15 Cal. 287 124, 182n 
 
 Jones V. Cloak, Hardres. 48 51 
 
 Jourdain v. Wilson, 4 B. & Aid. 266 114 
 
 Journay v. Brackley, 1 Hilton 447 182n 
 
 Joy V. Boston Penny Sav. Bk., 115 Mass. 60 202, 218, 259 
 
 Kane v. Sanger, 14 Johns. 89 95 
 
 Kearney v. Post, 1 Sanf. 105 86 
 
 Keates v. Lyon, L. R. 4 Ch. 218 20, 184, 185, 205, 244, 249, 258 
 
 Keath v. Day, 15 Vt. 660 95 
 
 Keilway, 46 B. pi. 5 178 
 
 Keilway, 130, pi. 104 _ 52 
 
 Kellogg V. Robinson, 6 Vt. 276 159, 213 
 
 Kemp V. Bird, 5 Ch. D. 549, id. 974 116, 239 
 
 Kennedy v. Owen, 136 Mass. 199 87 
 
 Kentucky Cent. Ry. v. Kenney, 82 Ky. 154 163, 213 
 
 Keppel V. Bailey, 2 M. & K. 517 
 
 144, 145, 162, 170, 202, 204, 236, 253, 254 
 
 Kettle River Ry. v. Eastern Ry., 41 Minn. 461 248 
 
 Kew V. Trainor, 150 111. 150 110, 112 
 
 Kimpton v. Walker, 9 Vt. 191 , 94n 
 
 King (The) v. Commrs. of Essex, 1 B. & C. 477 240 
 
 King V. Dickeson, 40 Ch. D. 596 177, 239, 253, 255 
 
 King V. Wright, 155 Mass. 444 137n, 152, 202, 218 
 
 Kirkpatrick v. Peshine, 24 N. J. Eq. 206 206n, 247, 255 
 
XXIV TABLE OF CASES. 
 
 Page 
 
 Knight's Case, 5 Co. 55b 102, lOa 
 
 Knight V. Simmonds, '96, 2 Ch. 264 171,261 
 
 Knight V. Thayer, 125 Mass. 25 129 
 
 Kunckle v. Wynick, 1 Dall. 326 93, 149, 176, 200 
 
 Lake Brie Ry. v. Priest, 31 N. B. Rep. 77 160, 194, 213 
 
 Lametti v. Anderson, 6 Cow. 302 114 
 
 Landell v. Hamilton, 175 Pa. 327 150, 171, 206n, 230, 247, 260, 261 
 
 Lansford v. Alexander, 4 D. & B. 40 98 
 
 Lawrence v. Whitney, 115 N. Y. 410 155, 197 
 
 Lee V. Payne, 4 Mich. 106 75, 95, 99 
 
 Lehman v. Dreyfus, 37 La. Ann. 587 114n 
 
 Leppla V. Mackey, 31 Minn. 75 75, 110 
 
 Lewis V. Gollner, 129 N. Y. 227 192, 206n, 247, 252, 255, 262 
 
 Lindsley v. Schneide, 59 Mo. App. 371 Ill 
 
 Littlefield v. Gatchell, 32 Me. 390 116 
 
 London and S. W. Ry. v. Gomm, 20 Ch. D. 562. .187, 220, 235n, 239, 243 
 
 London (City of) v. Richmond, 2 Vern. 421 97 
 
 Loring v. Bacon, 4 Mass. 575 50 
 
 Love V. Howard, 6 R. L 116 , lia 
 
 Lumby v. Hodgson, 16 East 99 89 
 
 Lydick v. B. & 0. Ry., 17 W. Va. 427 
 
 137, 137n, 164, 183, 193, 201, 203, 206n, 235, 245, 249, 25S 
 
 Lynn v. Mt. Savage Co., 34 Md. 603 161 
 
 Lyon V. Parker, 45 Me. 474 175, 19T 
 
 Maine v. Cumston, 98 Mass. 317 137n, 152, 191, 219, 241, 25» 
 
 Maine v. Davis, 32 Barb. 461 98 
 
 Maine v. Feather, 21 Barb. 646 , 158 
 
 Mann v. Stevens, 15 Sim. 337 145, 236, 254 
 
 Manners (Lord) v. Johnson, 1 Ch. D. 673 239, 244 
 
 Mansel v. Norton, 22 Ch. D. 769 90, 100 
 
 Marney v. Byrd, 11 Hump. 95 85 
 
 Marsh v. Brace, Cro. Jac. 334 95 
 
 Marshall v. Lippman, 16 Hun 110 84 
 
 Martin v. Martin, 44 Kan. 295 164, 191n, 245, 247 
 
 Martin v. O'Conor, 43 Barb. 514 96 
 
 Martin Pateshull's Case, Bract. 394b 180n 
 
 Martyn v. Williams, 1 H. & N. 817 200 
 
 Mason v. Smith, 131 Mass. 510 95, 113 
 
 Masury v. Southworth, 9 0. St. 340 76n, 108n, 112 
 
 May V. Sheehy, 4 Cranch C. C. 135 99 
 
 Mayhew v. Hardesty, 29 Md. 50 97, 99, 112 
 
 Maynard v. Polhemus, 74 Cal. 141 206n 
 
 McCormick v. Stowell, 138 Mass. 431 110 
 
TABLE OP CASES. XXV 
 
 Page 
 
 McCusker v. McEvey, 9 R. I. 528 129 
 
 McKee v. Angelrodt, 16 Mo. 283 125 
 
 McKenzie v. Cliilders, 43 Ch. D. 265 239, 255 
 
 McLean v. McKay, 5 P. C. 327 205, 239, 244 
 
 McMahon v. Williams, 79 Ala. 288 21, 164, 228n, 230, 244, 247 
 
 McMurphy v. Minot, 4 N. H. 251 125 
 
 McNeil V. Kendall, 128 Mass. 245 96 
 
 McQuesney v. Heister, 33 Pa. 435 96 
 
 McQuigg V. Morton, 39 Pa. 43 149 
 
 Merchants' Ins. Co. v. Mazange, 22 Ala. 168 74 
 
 Middlefield v. Knitting Co., 160 Mass. 267 153, 201, 214, 240 
 
 Midland Ry. v. Fiss, 125 Ind. 19 160, 194, 213 
 
 Miller v. Mendenhall, 43 Minn. 95 164 
 
 Miller v. Noonan, 12 Mo. App. 370 165, 197 
 
 Milnes v. Branch, 5 M. & Sel. 411 61, 147, 175, 199 
 
 Minshull v. Oakes, 2 H. & N. 793 107, 108 
 
 Mitchell V. Steward, 1 Bq. 541 238 
 
 Mithoff V. Hughes, 5 0. C. Ct. 129 166, 247, 255 
 
 Modern (12) 512 _ 39 
 
 Mohr V. Parmalee, 43 N. Y. Super. Ct. 320 158, 172, 202, 206n, 218 
 
 Monro v. Waller, 28 Ont. 29 f. 110, 112 
 
 Moore 27 106 
 
 Moore 123 106 
 
 Moore 159 107 
 
 Moore 179, pi. 318 61n, 66, 68 
 
 Moore 242 106 
 
 Moore 300 106 
 
 Morgan v. Hardy, 17 Q. B. D. 770 110 
 
 Morgan v. Ward, 12 W. N. C. 449 85 
 
 Morland v. Cook, 6 Eq. 252 146, 204, 239, 240, 241, 246 
 
 Morris v. Kennedy, '96, 2 Ir. 247 113 
 
 Morse v. Aldrich, 19 Pick. 449 75, 137n, 139, 151, 168 
 
 Mott V. Oppenheimer, 135 N. Y. 312 
 
 137n, 158, 181n, 197, 202, 206n, 218, 245 
 
 Moule V. Garrett, L. R. 5 Ex. 132, 7 id. 101 94, 94n 
 
 Murray v. Jayne, 8 Barb. 612 193 
 
 Murphy v. Minot, 4 N. H. 251 76 
 
 Muzzarelli v. Hulshizer, 163 Pa. 643 137n, 150, 206n, 230, 244, 247 
 
 Myers v. Burns, 33 Barb. 401 110 
 
 Mygatt V. Coe, 142 N. Y. 78 86, 124, 125, 125n 
 
 Nat. Bank of Dover v. Segur, 39 N. J. L. 173 166, 252n, 262 
 
 Nesbet v. Nesbet, Taylor (N. C.) 82 84 
 
 Newburg Pet. Co. v. Weare, 44 0. St. 604 76ii 
 
XXVI TABLE OF CASES. 
 
 Page 
 
 Norcross v. James, 140 Mass. 188 19, 154, 230, 240 
 
 Norfleet v. Cromwell, 64 N. C. 1 164, 197, 201, 203, 206n, 214, 256 
 
 Northern Trust Co. v. Snyder, 46 U. S. App. 179 112 
 
 Norval V. Pascoe, 34 L. J. Ch. 82 200 
 
 Nye V. Hoyle, 120 N. Y. 195 137n, 155, 157, 197, 201, 214, 246 
 
 Pakenham's Case, Y. B. 42 E. Ill, 3 
 
 17n, 53, 57, 63, 64, 65, 67, 68, 69, 69n, 70, 139, 144, 176, 196, 197, 201, 204 
 
 Palmer v. Edwards, 1 Doug. 187 96, 98 
 
 Palmer V. Ekins, 2 L. Raym. 1550 126, 128n 
 
 Pargeter v. Harris, 7 Q. B. 708 127 
 
 Parker v. Nightingale, 6 Allen 341 248, 249, 251 
 
 Parrish v. Whitney, 3 Gray 516 153, 195, 211 
 
 Patty V. Bogle, 59 Miss. 491 84, 93 
 
 Peck V. Conway, 119 Mass. 546 249, 256 
 
 Peden v. Chi. &c. Ry. 78 la. 131, 83 id. 328...137n, 165, 177, 206n, 214 
 
 Peers v. Consol. Coal Co., 116 111. 361 84, 116n 
 
 Petroleum Co. v. Weare, 44 0. St. 644 108n 
 
 Pfaff V. Golden, 126 Mass. 402 93,114 
 
 Pfeiffer v. Matthews, 161 Mass. 487 152, 183, 202, 218 
 
 Philpot V. Hoare, Amb. 480 97 
 
 Phoenix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400 158 
 
 Pierce v. Kneeland, 16 Wis. 672 161, 168 
 
 Piggot V. Mason, 1 Paige 412 110, 130 
 
 Pike V. Leiter, 127 111. 287 _ 99, 110 
 
 Pilsbury v. Morris, 54 Minn. 492 164, 202, 218 
 
 Plymouth v. Carver, 16 Pick. 183 151 
 
 Poage V. Wabash Ry., 24 Mo. App. 199 165, 194, 256 
 
 Pollard V. Shaffer, 1 Dal. 230 110 
 
 Pomfret v. Ricroft, 1 Wms.' Saund. 322a 49 
 
 Portmore v. Bunn, 1 B. & C. 694 200 
 
 Post V. Kearney, 2 Comst. 394 113 
 
 Post V. Weil, 115 N. Y. 361 157, 183, 206n, 230, 247 
 
 Post V. West Shore Ry., 50 Hun 301 158, 196 
 
 Provident L. & T. Co. v. Fiss, 147 Pa. 232 149 
 
 Pyot v. Lady St. John, Cro. Jac. 329 99 
 
 Quackenboss v. Clarke, 12 Wend. 555 97, 99 
 
 Raby v. Reeves, 112 N. C. 688 137n, 163, 200, 206n 
 
 Randall v. Rigby, 4 M. & W. 130 61, 199 
 
 Kanger v. Bacon, 22 N. Y. Supp. 551 93 
 
 Ry. V. Bosworth, 46 0. St. 81 166, 176, 201, 213, 255, 256 
 
 Ry. V. Power, 43 N. E. Rep. 959 160, 213 
 
 By. V. Reno, 22 111. App. 420 137n, 206a 
 
TABLE OS CASES. XXVll 
 
 Page 
 
 Ray V. Sweeney, 14 Bush 1 _ 75 
 
 Raymond v. Fitch, 5 Tyr. 985 131 
 
 Raynor v. Lyon, 46 Hun 227 , 158, 172, 184, 248, 258 
 
 Reid V. Weissner, 40 Atl. Rep. 877 Ill 
 
 Renals v. Cowlishaw, 9 Ch. D. 125, 11 Ch. D. 866.. 239, 244, 249, 254 
 
 Rice V. Boston and Wore. Ry., 12 Allen 141 25 
 
 Richards v. Revett, 7 Ch. D. 224 205, 239, 254 
 
 Richardson v. Tobey, 121 Mass. 457 152, 206n, 218, 255, 256 
 
 Ritzman v. Spencer, 5 Pa. Dist. Ct. 224 149, 200, 206n, 255 
 
 Roach V. Wadham, 6 East 289 122, 142, 143, 222 
 
 Robblns v. Webb. 68 Ala. 363 164, 198, 230 
 
 Roche V. Ullman, 104 111. 11 161, 202,218 
 
 Rochester Lodge v. Graham, 65 Minn. 457 _ 130 
 
 Roe V. Dean of Windsor, 4 Co. 24 110 
 
 Roe V. Hayley, 12 East 464 _ 110 
 
 Rogers v. Humphreys, 4 A. & B. 299 123 
 
 Rolls V. Miller, 27 Ch. D. 71 , 113 
 
 Rowell V. Jewett, 71 Me. 408 , 21 
 
 Ruddick v. Ry., 116 Mo. 25 , 201,202 
 
 Russell V. Baber, 18 W. R. 1021 239 
 
 St. Albans (Bishop of) v. Battersley, 3 Q. B. D. 359 113 
 
 Saint Andrew's Church's Appeal, 67 Pa. 512 150 
 
 Saint Joseph Ry. v. Saint Louis Ry., 135 Mo. 173 96 
 
 Saint Louis Pub. Sch. v. Ins. Co., 5 Mo. App. 91 84, 95 
 
 Saint Louis etc. Ry. v. O'Baugh, 49 Ark. 418 201, 206n 
 
 Salisbury v. Shirley, 66 Cal. 223 84, 114 
 
 Sandwitch v. DeSilver, 1 Browne (Pa.) 221 - 113 
 
 Savage v. Mason, 3 Cush. 500 137n, 151, 218 
 
 Sayers v. Collyer, 24 Ch. D. 180, 28 Ch. D. 103 171, 238, 261 
 
 Sheidt V. Betz, 4 111. App. 431 95 
 
 Scott V. Lunt, 7 Pet. 596 _ 93, 137n, 200 
 
 Scott V. McMillan, 76 N. Y. 141 156, 219, 249 
 
 Shaber v. Water Co., 30 Minn. 179 114, 137n, 197, 206n 
 
 Sharp V. Cheatham, 88 Mo. 498 165, 202, 218, 219, 241 
 
 Sharp V. Ropes, 110 Mass. 351 245 
 
 Sharp V. Waterhouse, 7 E. & B. 816 136, 199 
 
 Shattuck V. Lovejoy, 8 Gray 204 ^ 110 
 
 Shaw V. Partridge, 17 Vt. 626 93 
 
 Sheets v. Selden, 1 Wall. 177 _ 87 
 
 Shreiber v. Creed, 10 Sim. 9 244,249 
 
 Shumway v. Collins, 6 Gray 227 ^ 96 
 
 Simonds v. Turner, 120 Mass. 328 113 
 
 Simons v. Van Ingen, 86 Pa. 330 - 86 
 
 Simpson v. Clayton, 4 Bing. N. C. 758 9& 
 
XXVlll TABLE OF CASES. 
 
 Page 
 
 Skinker v. Shepard, 130 Mass. 180 206n, 249 
 
 Smiley v. Van Winkle, 6 Cal. 605 - 96 
 
 Smith V. Arnold, 3 Salk. 4 107 
 
 Smith V. Eggleston, L. R. 9 C. P. 145 89 
 
 Smith V. Harrison, 42 0. St. 180 93 
 
 Smith V. Robinson, '93, 2 Q. B. 53 _ 113 
 
 Smith V. Simonds, Comb. 64 107 
 
 Snyder's License, 2 Pa. Dist. Ct. 785 137n, 150, 172, 206n, 230 
 
 Spencer's Case, 5 Co. 16a 9, 59, 78, 87, 105, 106, 107, 108, 
 
 108n, 109, 110, 113, 126, 200, 202 
 
 Spencer v. Austin, 38 Vt. 258 , 133 
 
 Springer v. Phillips, 71 Pa. 60 136n, 149, 200 
 
 Standen v. Christmas, 10 Q. B. 135 87, 88, 89, 189 
 
 Standish v. Lawrence, 111 Mass. Ill 152, 218, 255, 259 
 
 Star V. Rookesby, 1 Salk. 335 212 
 
 State V. Martin, 14 Lea 22 ,- 114 
 
 Steele v. Biggs, 22 111. 643 160 
 
 Steis V. Kranz, 32 Minn. 313 , 112 
 
 Sterling Co. v. Williams, 66 111. 393 137n, 201 
 
 Stewart v. Aldrich, 8 Hun 241 137n, 158, 202, 218 
 
 Stewart v. Ry., 102 N. Y. 601 96 
 
 Stockett V. Howard, 34 Md. 121 _ 114 
 
 Stoddard v. Emery, 128 Pa. 436 91 
 
 Sturgeon v. Wingfield, 15 M. & W. 224 126 
 
 Suydam v. Jones, 10 Wend. 180 „ 183 
 
 Taite v. Gosling, 11 Ch. D. 273 239, 244, 254 
 
 Talmadge v. East River Bank, 26 N. Y. 105 245, 250, 255, 257 
 
 Tallman v. Briscoe, 65 Barb. 369 125 
 
 Tardy v. Creasy, 81 Va. 553 167, 230, 248, 253n 
 
 Tatem v. Chaplin, 2 H. Bl. 133 112 
 
 Taylor v. Owen, 2 Blkf. 301 _ 114 
 
 Tenant v. Goldwin, 1 Salk. 360 49, 50 
 
 Thayer v. Smith, 7 R. I. 164 159, 214 
 
 Thomas v. Hayward, L. R. 4 Ex. 311 100 
 
 Thomas v. Poole, 7 Gray 83 159 
 
 Thomas v. Van Kapff, 6 G. & J. 381 112 
 
 Thompson v. Rose, 8 Cow. 266 108n 
 
 Thornton v. Court, 3 De G. M. & G. 293 126n 
 
 Thrale y. Cornwall, 1 Wils. 165 59, 83, 84 
 
 Thre'r (Lord) v. Barton, Moore 94 132n 
 
 Thursby v. Plant, 1 Wms.' Saund. 240, N. 3. .59, 66, 82, 83, 91, 95, 141 
 
 Tidswell v. Whitworth, L. R. 2 C. P. 326 113 
 
 Tobey v. Moore, 130 Mass. 448 154, 251 
 
 Todd V. Stokes, 10 Pa. 155 218 
 
TABLE OF CASES. XXIX 
 
 Toledo Ry. v. Cosand, 33 N. E. Rep. 251 , 160, 213 
 
 Tolman v. Coffin, 4 N. Y. 134, 8 N. Y. 465 108n 
 
 Tomblln v. Fish, 18 Brad. 439 ...161, 202, 218 
 
 Torrey v. Wallace, 3 Cush. 571 113 
 
 To-wn V. Needham, 3 Paige 546 126ii 
 
 Townsend v. Read, 13 Daly 198 131 
 
 Trask v. Graham, 47 Minn. 571 113 
 
 Trevivan v. Lawrence, 1 Salk. 276 128 
 
 Trustees of Columhia Col. v. Lynch, 47 How. Pr. 273.. .176, 197, 245, 248 
 
 Trustees of Columbia Col. v. Thatcher, 87 N. Y. 311 261 
 
 Trustees &c. v. Streeter, 64 N. H. 106 124 
 
 Tulk V. Moxhay, 2 Phill. 774 
 
 136, 145, 147, 148, 201, 205, 236, 238, 239, 241, 242, 243, 245, 249, 254 
 
 Twynam v. Pickard, 2 B. & Aid. 105 .99, 100, 104 
 
 Tyler v. Heidorn, 46 Barb. 439 154 
 
 Tyndall v. Castle, '93, W. R. 40 , 238, 244, 255 
 
 Univ. of Vt. V. Joslyn, 21 Vt. 52 85 
 
 Univ. Soc. V. Providence, 6 R. L 235 ., 113 
 
 Valllant v. Dodomede, 2 Atk. 546 97 
 
 Van Doren v. Robinson, 16 N. J. Eq. 256 246, 255, 261 
 
 Van Rensellaer v. Hayes, 19 N. Y. 68 158 
 
 Van Rensellaer v. Smith, 27 Barb. 104 154, 175 
 
 Varley v. Coppard, L. R. 7 C. P. 505 110 
 
 Vernon v. Smith, 5 B. & Aid. 1 99, 101, 110, 112 
 
 Viner, Gov. K. 19 110 
 
 Viner, Gov. 378 52 
 
 Viner, Vouch. 36 , 40 
 
 Viner, Vouch. 54 33 
 
 Vyvgan v. Arthur, 1 B. & C. 410 110, 112, 144 
 
 Wadham v. P. M. Genl., L. R. 6 Q. B. 644 113 
 
 Waggoner v. Wabash Ry., 185 111. 154 25 
 
 Walker's Case, 3 Co. 22b 84, 95, 101 
 
 Wall v. Hinds, 4 Gray 256 _ 93 
 
 Walsh V. Barton, 24 0. St. 28 .166, 177, 195 
 
 Walton V. Waterhouse, 2 Wms.' Saund. 418 127, 130 
 
 Washington Gas Co. v. Johnson, 123 Pa. 576 95 
 
 Waterbury v. Head, 12 N. Y. St. Rep. 361 176, 183 
 
 Watertown v. Cowen, 4 Paige 510 137n, 156, 206n, 223, 248, 249 
 
 Watson v. Gardner, 119 111. 312 114 
 
 Watts V. Ognell, Cro. Jac. 192 * 53 
 
 Weak V. Lower, Pollexf en 54 129 
 
XXS TABLE OE CASES. 
 
 Page 
 
 Webb V. Russell, 3 T. R. 401 - 
 
 59, 66, 83, 84, 129, 131, 133, 141, 142, 175 
 
 Webster v. Nichols, 104 111. 160 114 
 
 Weill V. Baldwin, 64 Cal. 476 137n, 163, 200, 206n 
 
 Werderman v. Soc. Gen, d'Electricite, 19 Ch. D. 246 199 
 
 Wertbeimer v. Wayne Cir. Judge, 83 Micb. 56 104, 112 
 
 West V. Dobb, L. R. 4 Q. B. 634 110 
 
 Western v. McDermott, 1 Eq. 449, 2 Cb. 72 145 
 
 West Va. Trans. Co. v. Obio Riv. etc. Co., 22 W. Va. 600 165 
 
 Weyman t. Ringold, 1 Brad. 40 _ 202, 218 
 
 Wbatman v. Gibson, 9 Sim. 196 145, 236, 244, 254 
 
 Wbeeler v. Earle, 5 Cusb. 31 104 
 
 Wbeeler v. Schad, 7 Nev. 204 85, 165, 176, 197, 198, 214 
 
 Wbeelock t. Thayer, 16 Pick. 68 , 151, 201 
 
 Whetstone v. McCartney, 32 Mo. App. 430 93n 
 
 White V. Patton, 24 Pick. 324 , 129 
 
 White V. Southend Hotel Co., '91, 1 Cb. 767 115a 
 
 White V. Whitney, 3 Met 81 86, 126n 
 
 Wbitlock's Case, 8 Co. 69b 117, 118, 119 
 
 Whitton V. Peacock, 2 Bing. N. C. 411 127n, 128n 
 
 Wiggins Ferry Co. v. Chi. etc. Ry., 73 Mo. 389 165, 190 
 
 Wilcox V. Campbell, 35 Hun. 254 158 
 
 Wilkinson v. Collier, 13 Q. B. D. 1 113 
 
 Wilkinson v. Pettit, 47 Barb. 230 110 
 
 Williams v. Baugh, 9 Lea 455 86 
 
 Williams v. Bosanquet, 1 B. & B. 238 125 
 
 Williams v. Earle, L. R. 3 Q. B. 739 110, 111 
 
 Willis V. East Trust and Bkg. Co., 169 U. S. 295 123 
 
 Wills V. Summers, 45 Minn. 90 113 
 
 Wilson Y. Gerbardt, 9 Col. 585 _ 93 
 
 Wilson V. Hart, 1 Cb. 463 238, 249, 254, 255 
 
 Winchester's (Mayor and Commonalty of) Case., Hob. 57 51 
 
 Wineman v. Phillips, 93 Mich. 223 Sa 
 
 Winfield v. Henning, 21 N. J. Eq. 188 176, 206n, 247, 251, 253 
 
 Witherbee v. Meyer, 84 Hun. 146 158 
 
 Woburn's (Prior of) Case, Y. B. 22 H. VI, 46 51 
 
 Wolveridge v. Steward, 1 Cr. & M. 644 94 
 
 Worley v. Hlneman, 6 Ind. App. 240 85 
 
 Wright V. Burroughs, 4 D. & L. 438 99 
 
 Wooliscroft V. Norton, 15 Wis. 198 137n, 161, 176, 202, 206n, 214 
 
 Yielding v. Fay, Cro. Eliz. 569 51 
 
 Young V. Wrigbtson, 24 Weekly Law Bui. 457 112 
 
TABLE OF CASES. XXXI 
 
 ANONYMOUS YEAR BOOK CASES. 
 
 Page 
 
 4 H. m, 51, Fitz. Nat. Brev. 145 47, 55, 61 
 
 Y. B. 20 E. I, 232 39, 42, 43 
 
 Y. B. 21 E. I, 136 _ 47, 52, 55, 62 
 
 Y. B. 21 E. I, 182 51, 53 
 
 Y. B. 30 E. I, 142 46 
 
 Y. B. 31 E. I, 142 62 
 
 Y. B. 31 B. I, 196 46 
 
 Y. B. 7 E. II, 236 40 
 
 8, E. II, Voucli, 237 40 
 
 Y. B. 1 E. Ill, 2 40 
 
 Y. B. 4 E. Ill, 57 47, 55, 62 
 
 Y. B. 7 E. Ill, 65 (same case on rehearing) 56, 62, 64 
 
 Y. B. 5 E. Ill, 100 49 
 
 Y. B. 11 E. Ill, 181 39 
 
 Y. B. 13 E. Ill, 50 40 
 
 Y. B. 18 E. Ill, 8 41 
 
 Y. B. 18 E. Ill, 23 49 
 
 Y. B. 38 E. Ill, 22 40 
 
 Y. B. 40 E. Ill, 14 41 
 
 Y. B. 43 E. Ill, 186 43 
 
 44 E. Ill, 16 _ 39 
 
 Y. B. 48 E. Ill, 2 70, 106 
 
 Y. B. 48 E. Ill, 186 33 
 
 Y. B. Mich. E. Ill, 50 , 39 
 
 Y. B. 1 H. IV, 1 70 
 
 Y. B. 19 H. VI, 33 , 178 
 
 Y. B. 21 H. VI, 41 33, 43 
 
 Y. B. 22 H. VI, 22 , 43 
 
 Y. B. 32 H. VI, 32 _ 70 
 
 Y. B. 8 E. IV, 6 178 
 
 Y. B. 22 E. IV, 1 _ 52 
 
 Y. B. 22 E. IV, 10 _ 39 
 
 Y. B. 22 E. IV, 14 _ 53 
 
 Y. B. 14 H. VII, 14 , 53 
 
 Y. B. 22 H. VII, 22 , 33 
 
 Y. B. 26 H. VIII, 3 ~ 4& 
 
INTRODUCTION, 
 
 We are taught to believe that the peculiar virtue of the 
 Common Law lies not so- much in its ancient principles as 
 embodying a theory, as in the fact that its flexibility enables 
 the advance of civilization to mould it into shapes consonant 
 with requirements ; so that in many instances parts which at 
 one time were almost fundamental principles have been 
 gradually changed or abandoned as circumstances required. 
 Thus the practical value of the Common Law is that a de- 
 cision is conceived to be law only until a new and different 
 one is made. But while a decision which represents what is 
 wisest for the present public good may well be proper com- 
 mon law although in conflict with the decisions of two hun- 
 dred years ago, at the same time the previous decisions are 
 always regarded as the safest guides to what is wisest for 
 the next decision to be ; and in the absence of a good reason 
 to reject them, by a sort of mediate inference they have 
 come to be regarded as binding law themselves. And so it is 
 that a vast collection of customs reached without decisions 
 and decisions the outgrowth of customs, added to from time 
 to time by statutory enactments, have come to be regarded as 
 one complex whole stretching from Domesday Book to the 
 present day and called the Common Law. 
 
 There have been many assertions of the theory that judges 
 declare, but do not make the law. See 2 Bl. Com., pp. 68, et 
 seq., Hargrove's Co. Lit. 66, and Cooley's note to Black- 
 stone just cited. But while Blackstone's argument that only 
 what is reasonable is law, so that a bad decision is not bad 
 law merely, but is not law at all, serves to explain the valid- 
 
 3 11 
 
12 UTTEODUCTIOW. 
 
 ity of a new decision in overruling an old one, it creates 
 greater difficulties in ascertaining the force of the new de- 
 cision as standing for itself. Blackstone divides law into 
 written and unwritten law. This sets aside such changes 
 in the law as were accomplished by statutory reform. But 
 the unwritten law necessarily involves conclusions made in 
 court, from accepted principles based on new circumstances ; 
 and to say that these are not always law, is to say that they 
 are not binding, which is begging the question, for it as- 
 sumes merely that any unwisdom in them when pointed out 
 will be readily corrected by another decision, of no more 
 intrinsic authority, but regarded because a subsequent ex- 
 pression of opinion by the respected arbiter. 
 
 This unwritten law, then, is potentially judge-made law; 
 and upon reflection it will appear that it is not necessarily 
 limited to corollaries and deductions from old principles. A 
 new decision upon the legal significance of new facts, though 
 representing merely the judge's opinion, thoroughly apart 
 from defective reasoning in deducing a conclusion from this 
 opinion and already established principles, is as much law 
 as the judge's reiteration of the old Saxon principle he ap- 
 plied. But this judge-made law, resting on the judges' own 
 conception of what is right, should not be forever binding 
 merely because it was expressed by the bench instead of the 
 bar. The force of such a system of law must always lie in 
 its wisdom, for the length of time during which it may have 
 been accepted unchanged should only militate to cause a 
 new judge to hesitate to condemn it as unwise. Recent de- 
 cisions are not infrequently reversed as unwise; and if a 
 court is certain of its position, there would seem no ground 
 to say that it cannot set aside a long line of decisions for- 
 merly accepted as law, if they are not in line with the court's 
 idea of right according to the general principles of the so- 
 called "law of the land." 
 
 It has not been overlooked that there has been a recent 
 
INTBODUCTION. 13 
 
 tendency in the House of Lords to regard its former de- 
 cisions as absolutely binding and unchangeable. This is 
 very thoroughly traced in Sir Frederick Pollock's "First 
 Book on Jurisprudence" in the Chapter on "Case Law and 
 Precedents." Lord Campbell is chiefly responsible for the 
 doctrine, though it is recognized by his successors. The 
 leading cases seem to be Bright v. Hutton, 3 H. L. C. 388 ; 
 Atty. Gen. v. Dean and Canons of Windsor, 8 H. L. C. 391; 
 Beamish v. Beamish, 9 H. L. C. 274, and Houldsworth v. 
 ■City of Glasgow Bank, 5 A. C. 317. But see the opinions in 
 Caledonian Eailway Co. v. Walker's Trustees, 7 A. C. 275, 
 which seem to reduce the view to the idea merely that a re- 
 versing decision is to be avoided if possible. It is needless 
 "to remind the reader that the Supreme Court of the United 
 iStates on more than one occasion has deliberately reversed 
 itself, for instance in the "Legal Tender Cases," and lately 
 in the "Income Tax Cases," the last of which reversed the 
 theory of a century's accepted decisions. 
 
 But if a court can set aside a previous decision settled 
 along original lines, a fortiori it may overrule decisions based 
 upon a misconception of older legal principles, especially 
 "where it appears that the decisions further back were differ- 
 ent, and seem wiser for present use than those in the books of 
 today. 
 
 Concretely, the modern law in England has now become al- 
 most intelligently settled, and has been concurred in by some 
 of our states, that there is no such thing as a covenant or 
 agreement running in all directions as an attachment to land. 
 The utmost that is admitted is that such covenants exist to 
 bind persons who had notice of their nature and creation. 
 On the other hand, it is maintained by some English law- 
 writers, and it is supported by decisions in many of the 
 states in America, that there was such a thing as a covenant 
 running as an attachment to land, and that the early Com- 
 mon Law sustains such a position. It is moreover main- 
 
14 INTEODUCTIOIT. 
 
 tained that the existence of such covenants is salutary, that 
 they should be recognized, and that any present law denying 
 their existence should be reversed. 
 
 To prove that there were such covenants in the old law, 
 is to prove that the ability to run with land is not a quality 
 in agreements antagonistic to the main principles of the com- 
 mon law; to examine the old law and to find some agree- 
 ments which seemed to have that quality ; and finally, to 
 prove that those creations cannot be classed under other rec- 
 ognized forms of the Common Law. This is the systematic 
 statement of the steps. But to follow this system involves 
 enormous labor. After proving abstractly that the Com- 
 mon Law recognized the systematic shifting of the personal 
 obligation, it would be necessary to look over the whole 
 field of the law for every form of shifting obligation which 
 followed the land, to eliminate the recognized classes, such 
 as easements, for instance, and if there were a residuum, to 
 prove that it was the elementary form of covenants. After 
 this there would be the necessity of tracing these covenants, 
 through the formative period of the law, before it would be 
 possible to see how to use them in the law of today. 
 
 Of course such a process is undesirable. In order to avoid 
 the examination of unfertile fields of the Common Law, the 
 way to find whether the quality of running with land would 
 be an attribute of covenants antagonistic to Common Law, 
 is to look in the Common Law for some principle in whiek 
 could be an origin of covenants, to study that principle, 
 and then to prove that running covenants could have an origin, 
 in nothing else. After an origin is found, and the nature 
 of that origin is studied, it will then be time to examine 
 more strictly the evidence we have for the existence of run- 
 ning covenants and the complete recognition of them through 
 the formative period of the law. 
 
 This mode of procedure has been decided upon in this 
 work, and when it has been thus proved that covenants as. 
 
INTEODUCTIOIf. 15 
 
 such, did run with land at old Common Law, the modern law 
 will be taken up and it will be shown how the modern Eng- 
 lish judges came to reject them, and to what extent they 
 liave been rejected or received in America. It is hoped 
 that in the course of this demonstration the usefulness of 
 covenants will appear; and whatever may be the promise of 
 their recognition in England, that there is excellent oppor- 
 tunity in America to extend their use in new localities and 
 gain for them more complete recognition in older states. 
 
 It is apparent that the process of investigation here prom- 
 ised, as well as the logical statement of it, is almost entirely 
 synthetic. Wtile the investigator at first assumes the defini- 
 tion of a covenant, and proves that it is derived from one 
 principle of the Common Law, that is, warranty, and is not 
 contained under other terms of the Common Law, the as- 
 sumption of the nature of the covenant is only tentative, for 
 he afterward builds up by synthesis the actual principle of 
 covenants, as well as the principles of warranty from which, 
 he tries to demonstrate that covenants are derived. So that 
 to tabulate the demonstration in analytic forms, or to follow 
 the a posteriori reasoning so pleasing in such writers as 
 Blackstone, is impossible. 
 
 It is appreciated that to the average reader the synthetic 
 method of reasoning is very unattractive; and if everybody 
 knew that warranties had such a history, and that covenants 
 are what it is attempted to prove them, their recognized 
 qualities could be tabulated and the discussion could follow 
 the table. But as it is, all that can be had at the start is a 
 definition of what it shall be attempted to prove is a run- 
 ning covenant, and descriptions of the other admitted terms 
 of law which resemble covenants and from which it is en- 
 deavored to distinguish them, — namely, conditions, rights 
 gained by prescription or lapse of time, and easements. 
 
 Of course, however, it is not to be forgotten that any defini- 
 tion is entirely artificial. Definitions, so called, of terms 
 
16 IWTEODUCTION. 
 
 of law are only what certain students think are definitions 
 of those terms; and do not in themselves prove that their 
 subjects may not have more qualities than they ascribe to 
 them. By this it is not desired to raise the question of the 
 logical soundness of all expressed reasoning, but merely to 
 guard the reader not to conclude that certain agreements, 
 which he may think are pure covenants, are easements or 
 something else, because included in what someone else classes 
 as easements. 
 
 It has been attempted in the first chapter to select from 
 other writers definitions or descriptions of the several terms 
 other than covenants which run with land, which embrace 
 only what everybody admits are embraced by those terms. 
 The definition given of covenants which run with land is 
 merely an epitome of what the writer will attempt to show 
 is a covenant which runs with land. 
 
A TREATISE ON COVENANTS WHICH RUN WITH 
 
 LAND OTHER THAN COVENANTS 
 
 FOR TITLE. 
 
 CHAPTEK I. 
 
 DEFINITIONS. 
 
 A covenant which runs with land is a promise by the 
 grantor of land to be active or passive in the nse of related 
 land-' for the benefit of the granted land, or a promise by 
 the grantee of land to be active or passive in its use for the 
 benefit of related land of the grantor, which promise 
 
 1 It has been suggested that covenants may be made by a grantor 
 of land, to do something on the granted land, for its benefit or by the 
 grantee of land to do something on related land of the grantor for 
 its benefit; and that these cases are not covered by the definition. 
 
 Aside from cases of purely personal agreements, which will be 
 explained later in this chapter, the only cases that have presented 
 themselves involving such covenants are cases where ecclesiastics 
 covenanted to furnish singing upon related land other than that 
 which they are supposed to have received as grantees. These cove- 
 nants might not be personal merely, and perhaps the definition 
 should be made to cover them. But they appear only in the two 
 celebrated Year Book cases, Pakenham's Case and Home's Case (see 
 chapter III), and these cases are so confusedly reported that they 
 have not been thought clear enough to warrant the extension of the 
 definition to cover such covenants. 
 
 It may be noted that the definition covers incorporeal as well as: 
 corporeal hereditaments, if land be regarded as comprehending' 
 both. Thus a covenant to pay a ground rent is a covenant by the 
 owner of the related burdened land to be active in its use for the 
 benefit of the granted land — that is, the rent. It will appear later 
 that the running of covenants with incorporeal hereditaments is not 
 universally recognized, however. 
 
 17 
 
18 DEFINITIONS. 
 
 must be signed by the promisor in the deed or as a separate 
 instrument under seal at about the same time ; and of which 
 promise the effect is to bind the promisor and his lawful suc- 
 cessors to the burdened land for the benefit of the promisee 
 and his lawful successors to the benefited land, and to give 
 each the power to enforce his right in his own name. 
 
 This definition is not beyond dispute in many points. It 
 has not been attempted to frame a definition which will be 
 generally accepted, as so much of the nature of covenants is 
 unsettled that probably no such definition could be framed 
 which would be of much service in beginning the study of 
 the subject. This definition was framed merely to contain 
 the principles which will be maintained in the succeeding 
 chapters, and any dissent from those principles must be post- 
 poned for investigation when those principles themselves are 
 discussed. But by assuming this definition, it is thought 
 much time will be saved the investigator, as it furnishes an 
 opportunity to contrast the principles of these covenants with 
 those of other forms of law, and serves to give a clear idea of 
 what it is to be attempted to demonstrate. 
 
 The principles of covenants, as applied by modern courts, 
 are not infrequently clearer than the language of the de- 
 cisions ; and so the principles of covenants must be very care- 
 fully distinguished in order to avoid the disastrous confusion 
 of rights, sometimes occasioned by inopportune language 
 found in some decision. 
 
 All covenants which run with land have been sometimes 
 erroneously considered to involve merely the principles of 
 covenants for title; and even where the covenants about 
 to be studied have been distinguished from covenants 
 for title, they have been at times confused with conditions 
 attached to estates, with rights gained by prescription, that 
 is to say, easements resting upon a supposed long-lost grant, 
 with rights resting upon "custom" in a particular locality, 
 and with easements created by deeds of the parties. 
 
DEFINITIOITS. 19 
 
 But the principle of the covenants defined above is so dif- 
 ferent from the principles of other forms of law that if once 
 thoroughly distinguished, no confusion need arise. These 
 covenants are not the same in principle as covenants for title, 
 .although it will be assumed that they both have their origin 
 in the Common Law warranty. Covenants for title in mod- 
 ern law are successors of warranty, designed for that purpose 
 ^lone (Eawle on Covenants for Title, Chapter I), and have 
 merely to do with fortifying the grantee of land in his title 
 by giving him a hold upon his grantor if the land is taken 
 awaj. They are "the ultimate assurance given, upon which 
 the plaintiff could rely, a guaranty against disturbance by a 
 superior title." Andrus v. Saint Louis Smelting Co., 130 U. 
 S. 643. The six modern forms of covenants for title, the 
 covenant of the grantor's seisin, the covejiant of the grantor's 
 right to convey, the covenant against incumbrances upon the 
 title, the covenant for the grantee's quiet enjoyment of the 
 premises, the covenant that the grantor will give further as- 
 surances of title if demanded, and the American covenant 
 that the grantor will warrant and defend the title, have all 
 to do only with the responsibility of the grantor and his 
 personal successors for the complete and honest transfer of 
 title to the land to the grantee according to the contract of 
 sale. The remaining land of the grantor is bound, but it is 
 bound only as all a man's property is broadly bound, as se- 
 curity for his obligations. Their object is the same as the 
 object of the old warranty — the indemnification of the 
 grantee against any chance of loss by defect in title to the 
 property. With the covenants treated in this work, however, 
 the principle is the linking of properties together so as to 
 make one piece more useful by the obligation of the owner 
 of the other. Norcross v. James, 140 IVIass. 188. And while 
 it will be shown, that this is a development of the principles 
 upon which the feudal warranty depended, it in no sense in- 
 volves the principle of warranty or a covenant obligation for 
 
'/ 
 
 20 DEFINITIONS. 
 
 title. It has nothing to do with security in possession. 
 Hence it appears also that while the grantee of land can never 
 have occasion to make a covenant for title or bind the re- 
 ceived land in any way thereby, either party to the instru- 
 ment of grant can make one of these other covenants and can 
 bind himself and the subsequent owners of his land to do 
 something for the benefit of land of the other party. 
 
 It therefore appears that the value of the covenant for title 
 is in the financial responsibility of the grantor ; but the value 
 of the other covenants is in the performance of the cove- 
 nants themselves. In Fitch v. Johnson, 104 Illinois 111, the 
 court said, "The acts embraced within the covenant being es- 
 sential to the use and enjoyment of the purchased estate, it 
 must be assumed their performance was intended by the 
 parties to be coextensive with the estate conveyed. . . . 
 and we are aware of no means by which such intention can 
 be made certainly effectual except by holding, as we do, the 
 covenant runs with the servient estate, and that the assignee 
 thereof is personally liable thereon." And indeed, as will 
 appear later, so far is this performance of the covenant rec- 
 ognized as the important matter in England, that in the 
 British courts the burden of no covenant is recognized as. 
 running with the land which cannot be enforced specifically. 
 Keates v. Lyon, L. E. 4 Ch. 218. 
 
 If, then, the principle of the covenants in question is dis- 
 tinguished from that of those other covenants which run with 
 land usually classed as covenants for title, their principle 
 must be distinguished from that of so-called conditions sub- 
 sequent in deeds which must be observed by the grantees, 
 and from the principles of the several kinds of real rights 
 and easements, above referred to, which often resemble cove- 
 nants in their operation. 
 
 The underlying principle of all conditions subsequent in 
 grants of land is that they prescribe terms upon which the 
 land shall revert to the grantor. The condition may be that 
 
DEFINITION'S. 21 
 
 subsequent to receiving tlie land the grantee must not do 
 some particular thing, or it may be that he must do some re- 
 quired thing. But in either case, if the grantee fails to per- 
 form the condition, his right to the land ceases, and the es- 
 tate reverts to the grantor as a matter of right; Eowell v. 
 Jewett, 71 Me. 408 ; and he may enter or bring ejectment, 
 as in Covt^ell v. Springs Co., 100 U. S. 55. 
 
 The condition is merely a provision; the covenant is al- 
 ways a chose in action. Hence the formal distinction 
 pointed out through the old law, that "A condition must be 
 the words of the grantor." Bacon Abr., Condition (A). So 
 while a condition may be inserted in an indenture, or deed of 
 grant signed by both the grantor and grantee, it may be just 
 as effective if in a deed-poll, or instrument which the grantee' 
 merely accepts without signing. A covenant, however, is es- 
 sentially a promis e signed by the person to be bound thereby, 
 whether grantor or grantee. This distingTiishing principle 
 of conditions, utterly different from the idea of a chose in 
 action, avoids all confusion with covenants. 
 
 The difference between covenants and all forms of ease- 
 ments may be stated with equal clearness. Kemembering 
 that covenants are choses in action, they are always claims 
 upon a person, while all easements are merely claims upon 
 land, and never upon the person who owns the land. In 
 McMahon v. Williams, 79 Ala. 288, the court said, "An 
 easement may consist either in suffering something to be 
 done or in abstaining from doing something on the servient 
 tenement. . . . The effect of the deed is to qualify the 
 nature of the estate granted. . . . The grantees took the 
 fee expressly burdened with a servitude." 
 
 The easement being therefore a right against land, it fol- 
 lows that the character of rights which can be subjects of 
 easements, is reasonably limited to rights which land can 
 suffer — that is, passive rights. According to the best Eng- 
 lish authorities, there can be no active easements owed by 
 
22 DEFINITIONS. 
 
 land. "An easement is a privilege without profit, which the 
 owner of one tenement has a right to enjoy in or over the 
 tenement of another person, by reason whereof the latter is. 
 obliged to suffer or refrain from doing something on his own 
 tenement for the advantage of the former." — Goddard on 
 Easements, p. 2, Bennett's ed. 
 
 Covenants, on the other hand, being personal obligations, 
 can of course be either active or passive, can obligate the 
 promisor either to do something or not to do something. 
 
 The distinction between covenants which run with land,, 
 and rights based upon prescription or custom, would seem 
 clear enough ; but as in the early development of the law the 
 nature of the rights has been confused, as will appear in suc- 
 ceeding chapters, it is best to get a clear idea now of what 
 "prescription" and "custom" in this connection mean, and 
 their essential distinction from covenants. 
 
 Prescription, says Blackstone, II Com. 263, is "when a 
 man can show no other title to what he claims than that he 
 and those under whom he claims have immemorially used 
 to enjoy it." And while prescription later came to be 
 founded upon a written grant presumed to be lost, and has. 
 its origin like covenants in the act of the parties, yet the 
 gist of its nature is in its unprovable age; it is a privilege 
 so old that it cannot be disproved; and if it were not old,, 
 it would not be prescription. See a full explanation of pre- 
 scription by Cockburn, C. J., in Angus v. Dalton, 8 Q. B. D. 
 85. Therefore prescription is established without writing 
 in fact; while a covenant depends upon a provable promise 
 under seal signed by the promisor. In prescription the act 
 of the parties is presumed ; in covenant the act of the parties 
 must be proved. 
 
 So rights gained by custom must have the same indefi- 
 nitely remote origin, as it is called, beyond legal memory;, 
 and indeed it has been held that in America a customary 
 right is impossible, as the country was settled within the limit 
 
DEFINITIONS. 23 
 
 of legal memory as fixed in England to be the reign of Rich- 
 ard I. Ackerman v. Shelp, 3 Halstead (IST. J.), 125. 
 
 Moreover, a right gained by custom must be applied to a 
 place in general, and not to any particular persons. Bacon 
 Abr., Custom (A) ; and therefore custom cannot be based 
 even upon a lost written contract between the parties, while a 
 covenant is dependent upon proof of the act of the parties 
 creating it. 
 
 But perhaps the readiest means of distinguishing between 
 covenants which run with land and these other rights is to 
 note with emphasis their legal effects. By the definition 
 a covenant which runs with land is a promise "the effect of 
 which is to bind the promisor and his lawful successors to 
 the burdened land for the benefit of the promisee and his 
 lawful successors to the benefited land." According to this 
 the covenant binds the person of the owner of the burdened 
 land, provided he comes by his title legally, and benefits the 
 owner of the benefited land provided he comes by his title 
 legally. That is to say, a covenant affects the person, not 
 the land; and affects only those persons who possess a legal 
 chain of title; so that it excludes disseisors from its effects. 
 Whether they may be held responsible as equitably bound, 
 is not the point now, but merely that they are not technically 
 reached by the covenant in its Common Law effect. 
 
 It requires but a glance, then, to see that covenants are 
 radically different in their effect from all other similar forms 
 of law. Prescription and custom operate to confer the right 
 upon the possessor of the land, whoever he may be. And 
 granted easements are rights gained by one piece of land 
 against another piece of land without regard to who is ex- 
 ercising the easements, as owner of the land. As to rights 
 gained by prescription, Littleton, §183, says, "Of such things 
 which are regardant or appending to a manor a man may 
 prescribe that he and those whose estate (que estate) he hath 
 were seised of the manor, and of those things as regardant or 
 
24 DEFINITIOiSrS. 
 
 appendant to the manor." And Coke adds, "A disseisor 
 shall plead a que estate." While as to custom Coke says (Co. 
 Lit. 113b), "A custom which is local, is alleged in no person, 
 but laid within some manor or other place." And Mr. Jus- 
 tice Holmes, in "The Common Law," p. 382, and Sir Fred- 
 erick Pollock and Mr. Maitland, in Hist. Eng. Law, vol. 1, 
 p. 14:7, explain that all easements when once established 
 were regarded as property of which the owner was seised, 
 just as he was seised of the land to which they were at- 
 tached. They were a part of the land. 
 
 But from conditions in their effect covenants even more 
 radically differ. With regard to the burdens imposed, the 
 covenant, being personal in its nature, merely holds the per- 
 son bound by it to perform his obligation ; and if he fails, he 
 has committed a breach of obligation which throws his 
 obligee, the beneficiary of the covenant, upon his right to an 
 action at law for his damages. As the covenant confers a 
 right against the person only, the obligee has merely the 
 rights which he would have for the breach of any other sort 
 of personal obligation. 
 
 The condition, however, while operating to affect the per- 
 son, it is true, affects him only secondarily; its direct effect 
 is upon the estate. Littleton, §325, says that estates upon 
 condition are so called "because that the estate of the feoffee 
 is defeasible if the condition be not performed." Thus the 
 condition operates upon the estate only, without regard to 
 who owns it; and if not complied with may take away the 
 estate, if the grantor choose, so as to cut off the tenure en- 
 tirely. 
 
 So also with regard to the benefits conferred the differ- 
 ence in effect between covenants and conditions is great, 
 although in both forms of law the right to the benefit seems 
 purely personal. The benefit of the covenant, as asserted 
 above, can run to any legal holder of the land, whether heir 
 or assign. Whereas the strict benefit of the condition — the 
 
DEFINITIONS. 25 
 
 Tight of re-entry on default by the grantee to comply with 
 the condition, the old law allowed only to the grantor or 
 Ms heir; he could not assign it. Lit. §347; 4 Kent, Com., 
 123 ; Eice v. Boston & Worcester Ey., 12 Allen 141 ; Wag- 
 goner V. Wabash Ey., 185 Illinois 154. 
 
 Thus it is that the effect of the burden of the covenant is 
 probably narrower than the effect of the burden of the condi- 
 tion, in that the covenant extends only to successors of the 
 covenantor, while the condition falls upon any holder of the 
 estate. And at the same time the effect of the benefit of the 
 covenant is broader than that of the condition, in that the 
 covenant extends to every successor of the convenantee, while 
 the condition — the right of entry — extends only to the donor 
 or his heirs. This distinguishing peculiarity seems to have 
 no historical significance, but shows the total unlikeness of 
 ihe two forms of law. 
 
 So much for the abstract distinctions in nature and effect 
 io be found between covenants and other forms of law.^ But 
 
 1 It has been suggested that there may be a difference between 
 covenants in deeds which are expected to be enforced specifically 
 and stipulations in deeds the noncompliance with which merely 
 affords damages. At a moment's thought it will appear that the 
 distinction is merely illusory, arising from a confusion of the field 
 •of running covenants with the field of simple contracts. In simple 
 contracts some provisions go to the essence of the whole contract, 
 and a nonperformance of them renders the defaulting party devoid 
 of any rights under the contract; while other stipulations are con- 
 strued to be collateral, so that the failing party may have rights 
 Tinder the contract not forfeited, but yet be liable to an action for 
 damages on account of breach of the stipulation. But a covenant 
 which runs with land is never entered into with the idea that its 
 iDreach will defeat the conveyance. The parties never expected any- 
 thing but an action for damages on its breach. True enough it may 
 Tje enforced in equity sometimes, but that is only in cases where the 
 breach consists in an attempt to do something which it was cove- 
 nanted not to do, and a court of equity would restrain by an injunc- 
 tion. But equity would enforce every covenant, and for that matter, 
 every stipulation In simple contracts, the same way, if it had any 
 machinery with which to do so. 
 
 Thus there is nothing in the idea of such a distinction. 
 
26 DEFINITIONS. 
 
 the difference in the concrete between covenants and other 
 forms of law is equally as apparent. It is affirmed in the 
 definition that covenants confer active or passive obligations 
 concerning the use of the land. That would embrace such 
 agreement as that by a grantor that all his tenants should 
 grind their corn at a mill on the granted premises ; an agree- 
 ment by a prior that he would furnish singing in a chapel on 
 the premises;^ an agreement by the grantor of certain prop- 
 erty that the contiguous property should not be used for 
 trade. These are certainly legitimate covenants, and as they 
 are not privileges which one piece of land can suffer and an- 
 other piece of land exercise, they must be the exclusive 
 subject of covenants, unless they can be enforced as customs. 
 But there seems little more reason in saying that custom can 
 compel a person to sing or to take his corn to a particular 
 mill, or not to build a shop on his land, than to say that he 
 can grant the obligation to sing as an easement, or to say 
 that the obligee is seised of the right that a shop shall not 
 be put upon the adjoining land. But strange to say, it is 
 maintained that such rights were obtained by custom, and 
 that they are in the nature of active easements ; and this mat- 
 ter will require full discussion in a later chapter. Of course 
 they could be conditions, so that the obligor would be obliged 
 to perform them or give up his property; but the means of 
 enforcing them if conditions would not be by action for dam- 
 ages, but by re-entry and an ousting of the defaulting 
 obligor from the possession or by an action to recover the 
 land itself. 
 
 If, then, there has been shown a sufficient distinction be- 
 tween a covenant which runs with land and other similar 
 forms of law, it is now time to explain the definition of these 
 covenants in detail, so as to understand the individual quali- 
 ties therein asserted to belong to a running covenant. 
 
 First, it is "a promise ... in a deed or a separate 
 
 1 See ante, page 1, note. 
 
DEFINITIONS. 27j 
 
 instniment under seal." In this it is like every Common 
 Law specialty. The seal, except where dispensed with by 
 statute, constitutes its formal importance as a written instru- 
 ment; so that the writing itself, not the promise which it 
 contains, is the obligee's property. It must be delivered and 
 accepted like every specialty; and it must fill all require- 
 ments of specialties. There is no necessity to give authorities 
 as to what specialties must be ; any Common Law authority is 
 clear enough on them. 
 
 The apparent distinction between covenants and ordinary 
 specialties which lies in the fact that the assignee of land af- 
 fected by covenants sues or is sued in his own name, while 
 the assignee of a specialty commonly sues in the name of 
 the assignor, is only an apparent distinction. The old law, 
 as we shall see, gave rights to successors only where they were 
 mentioned in the covenant by the terms "heirs and assigns ;" 
 and it would seem that as an outgrowth of warranty, this 
 must enable these parties to sue in their own names, just as 
 they probably did in express warranty, where in turn they 
 derived the custom from implied warranty; and in implied 
 warranty, as vidll be seen in the next chapter, it was clearly 
 proper for each landholder to sue in his own name. 
 
 Secondly, the covenant is to be "active or passive in the use 
 of the land." The common phrase is that it must "touch 
 or concern" the land. No covenant will run which is per- 
 sonal merely, and can be performed without the obligor 
 owning the land, or which can benefit one not owning the 
 particular land to be benefited. Thus if A sells a piece of his 
 land to, B and covenants to cut B's hay for him yearly, this 
 covenant will not bind A's vendee of the remainder of the 
 land; for anybody can cut B's hay without regard to his 
 proximity to B. And the same would be the case if B, in 
 consideration of A's selling him a piece of his land, should, 
 covenant to cut A's hay. These are merely personal cove- 
 nants, and would not run beyond the agreeing parties. But 
 
28 DEFINITIONS. 
 
 otherwise if A in selling part of his land to B, covenanted 
 that he and his successors would take their corn to a mill 
 on the granted land to be ground ; for none but B or his suc- 
 cessors could take this corn to the mill, and A or his suc- 
 cessors would be the only direct beneficiaries. 
 
 Thirdly, the covenant must be "in a deed granting the land, 
 or made about the time of the grant." This requirement is 
 chiefly historical. It followed the requirement of the old 
 warranty, from which it will be maintained later than cove- 
 nants derive their origin. But the requirement has been 
 followed generally because it is salutary. It prevents a too 
 frequent exercise of the right to bind land, and restricts it to 
 those eases only where the covenant figures in the general 
 value of the land in a sale. The reason why it is sufficient 
 that the covenant be executed about the same time as the 
 grant, is that it may be then presumed that it was a part of 
 the whole transaction. A similar requirement, though not 
 so well established, is that the grant should be a part of land 
 the remainder of which is retained by the grantor. That is, 
 that the land burdened and the land benefited should be con- 
 tiguous or nearly so. It is believed that this requirement 
 does obtain. Certainly it is the usual condition of things ; 
 and the principle of this requirement was a principle of 
 warranty, as of course in subinfeudation the grantor had an 
 interest in the granted premises. But how thoroughgoing 
 this requirement is in covenants the reader will be left to 
 discover when he comes to the old cases. At least the two 
 pieces of land must be related, however, and it seems that 
 both pieces must be the property of the grantor at the time 
 of the grant which accompanies the covenants.^ 
 
 - Numerous interesting cases suggest themselves, some of which 
 would seem to warrant the running of accompanying covenants, 
 but upon which the author can now recall no satisfactory cases at 
 Common Law indorsing the running. For instance, A and B might 
 each own a piece of property, the two being contiguous, and for 
 some reason they might effect an exchange. Why could not cove- 
 
DEFINITIOlSrS. 29 
 
 Fourthly, the effect of covenants, as set forth in the defini- 
 tion, has been made quite clear already. The definition 
 means that it shall bind by its burden the owner of the land 
 burdened and his heirs and assigns, and no others — thoseJn 
 privity j)f estate vt^ith him, as it is technically called. It does 
 not bind those who get the estate by forcible ousting of the 
 owner. And what is said of the burdened land is true also 
 of the benefited land ad infinitum. But to the idea that the 
 heirs and assigns have no rights unless mentioned, there is 
 some qualification in modem law. The old law required 
 that heirs and assigns be included in the original covenant if 
 they were to be burdened or benefited by the covenant, be- 
 cause the old law required explicitness in everything. But 
 whether this old requirement must be observed to-day may 
 well be doubted. 
 
 With these main points explained the reader is prepared 
 to begin the study of covenants. It only remains Lo give 
 instances of the common covenants occurring to-day, and 
 then to pass to the examination of the rise and history of 
 covenants from their assumed source. 
 
 The early covenants were solely for the individual uses of 
 
 the contracting parties, that the grantor might retain some 
 
 hold upon the usefulness to him of the granted land, or that 
 
 the grantee might be given some special inducement to buy 
 
 the land. They were covenants to pay granted ground rents,, y 
 
 covenants not to allow other mills to be built which would 
 
 interfere with the business of those sold, covenants to furnish 
 
 nants made in the exchange run with these pieces? Again, not 
 infrequently A owns related properties, X and Y; and sells X to 
 B, who makes certain covenants with regard to Y. Later A sells 
 Y to C, who makes similar covenants with regard to X. Now C can. 
 enforce B's covenant; but outside of equity can B enforce C's cove- 
 nant? There would seem to be lacking privity of estate — i. e., 
 succession in title — between them. As to this last stated case, refer- 
 ence may be made to enforcement of covenants in equity. Chap. 
 XI, and as to the general subject of the position of strangers to the 
 covenant, see Chap. IX, sec. 2. 
 
30 DEFINITIONS. 
 
 a certain share in the repairs of a dam, covenants to allow 
 a millpond to be drawn off to obtain alluvial deposit, and 
 all the various agreements which render adjoining properties 
 of mutual service in the carrying out of some particular 
 purpose. These covenants practically tied the two properties 
 together, and as the use of large tracts of property might be 
 hampered in future by these agreements, they were thought 
 to be dangerous, and hence fell under general condemnation. 
 But as later civilization began to make it of great importance 
 that large tracts should be retained in some special use, the 
 former disadvantage of tying them together by covenants 
 came to be an advantage instead. Thus to-day the common- 
 est instances of covenants are found in their use in conform- 
 ing the fractions of large tracts to interdependent useful- 
 ness. 
 
 The chief cases are: 
 
 1. Covenants as to the maintenance of fences and 
 
 walls ; 
 
 2. Covenants as to the building and use of party- 
 
 walls ; 
 
 3. Covenants as to the leaving open of ways or parks ; 
 
 4. Covenants restricting building to a particular line 
 
 and 
 
 5. Covenants restricting the kinds of buildings in a 
 
 locality. 
 
 But of course many occasions present themselves still in 
 the various applications of these main divisions which re- 
 quire the terms of the covenants to be both to do and not to 
 do particular things; and indeed there are still many cove- 
 nants which cannot be brought under these classes, though 
 too unlike to make a class themselves. 
 
 It is well to state here that these classes refer only to 
 covenants in grants of complete fees. In leases for life or for 
 years, the grantor retains a very close interest in the very 
 property leased ; so there are all sorts of covenants which he 
 
DEFIBTITIONS. 31 
 
 finds it to his interest to insert in the writing. The useful- 
 ness of these covenants has never ceased to be recognized, and ■ 
 their ability to run both with the lease and with the reversion 
 has never been denied in any country or state where the 
 Common Law is in vogue. Moreover, in the thirty-second 
 year of the reign of King Henry VIII of England, Parlia- 
 ment enacted a statute, recorded as 32 H. VIII, ch. 34, 
 which declared that such covenants in leases should run. 
 
 The main purpose of this statute was to declare the bind- 
 ing effect of all contracts of lease destroyed by the statutes of 
 mortmain, which caused forfeiture to the crown of the es- 
 tates of the Roman Church. Many of these estates were 
 leased to individuals, and the crown wanted to hold the con- 
 tracts of the lessees intact. But why this statute was drawn 
 to cover all leases, is difficult to say. The fact that it was so 
 broadly drawn, however, has furnished a ground for saying 
 that the burdens of covenants not in leases do not run; and 
 in all recent decisions the English and some American courts 
 have assigned that statute as proof. 
 
 To return, then, to the classes of covenants in grants of 
 fees, it will be noticed that the last two of these classes are 
 all in substance covenants not to do particular things ; that 
 is to say, they are restrictive covenants. So some of the 
 modern English judges, recognizing that they are passive 
 covenants, and in this quality resemble true easements, al- 
 though in fact they do not confer rights which are incor- 
 poreal hereditaments, held that they were a species of ease- 
 ment. And go, while they denied that a covenant could 
 run with land so as to bind successors to the land, they held 
 that where successors Ijnew of such a covenant as to the use 
 of the land, they were morally bound to regard it, and in a 
 court of equity could be held to do so. Hence developed the 
 so-called equitable easement; which must always be a re- 
 strictive agreement. 
 
 The third class, too, while conferring a right very like an 
 
32 DEFIiq-ITIONS. 
 
 easement, is treated sometimes as a mere restrictive cove- 
 nant. 
 
 But the first and second classes of covenants above given, 
 are not restrictive, and have never had any systematic ex- 
 planation. It has been said that the right to exact of a neigh- 
 bor to build a fence is a spurious easement also, and that 
 the agreements as to party-walls can be distributed under 
 equitable charges upon land and trusts. But how far this 
 is satisfactory the reader must decide for himself when he 
 examines them in subsequent chapters. At present the reader 
 is probably anxious to investigate the origin of covenants, 
 and the reason for maintaining that they run with land in. 
 the way described in the definition. 
 
 In accordance with the introduction, some origin for cove- 
 nants in the principles of the Common Law must be as- 
 sumed and then proven; and as already indicated, it seems- 
 best to look for the source of covenants in the Common Law 
 warranty. Warranty was one of the features of all feudal 
 tenure. When the feudal lord enfeoffed a tenant of land, 
 the old custom implied that he warranted the possession of 
 that much land to the tenant; and agreed that if the tenant 
 served him or paid him his rent, he would keep the tenant in 
 possession ; or if the tenant was driven out by some one who 
 had a better right to the land, he would give the tenant other 
 land of the same value. This warranty was merely an im- 
 plied contract. But in later days, when the forms of feudal 
 obligation were altered by statute or custom, as we shall see 
 in the next chapter, it became common to express this con- 
 tract in writing under seal, and this writing was called an. 
 express warranty. Thus it was a written agreement concern- 
 ing the granted land, and would seem a very likely origin 
 for all covenants which run with land. 
 
 Let us now examine the principles of this warranty to see 
 whether its qualities are not in accord with those attributed 
 to running covenants. 
 
CHAPTEE II. 
 
 THE PRINCIPLES OF COMMON LAW "WABEANTT WHICH CON- 
 TROL RUNNING COVENANTS. 
 
 The origin of covenants being therefore assumed to be in 
 warranties, the next step is to pay a limited attention to the 
 law of warranty in order to have a conception of the opera- 
 tion of its derivative. As no reference can be made to any 
 limited account of warranties adapted to the purpose it has 
 seemed unavoidable to make an abstract of their salient prin- 
 ciples here.-^ Covenants could only have sprung from ex- 
 press warranties ; but as express warranties represent merely 
 the crystallization of implied warranties, the implie d war- 
 ranty must be regarded as the basis of theirlaw. Coke 
 called warranty a covenant real because it was concerned 
 with the land and was available only to one who had been 
 disturbed in his possession of the land warrantied. Y. B. 
 43 E. Ill, 186 ; Y. B. 21 H. VI, 41 ; Y. B. 22 H. VII, 22 ; 
 Brooke, Voucher 71 ; Viner, Voucher 54. It would seem, 
 however, that the relation of warrantor and warrantee was 
 originally merely a contract of which the guaranty of the 
 possession of a certain amount of land was a later incident. 
 2 Pol. & Mait. Hist. Eng. Law, 287. The chief idea was the 
 protection furnished the tenant in return for the duties im- 
 posed upon him. The Lord was his defender in any difficulty 
 
 1 A very good description of the origin and development of war- 
 ranty may be found in "Lectures on the Constitution and Laws of 
 England," by Francis Stoughton Sullivan, of the University of Dublin 
 (in the last century), Lecture 12. It is merely descriptive, however, 
 and does not explain how warranties came to have the effects which 
 it asserts that they produce. For the citation the author is indebted 
 to Mr. James DeWitt Andrews. 
 
 33 
 
84: THE PEIWCIPLES OF COMMON LAW WAEEANTT 
 
 that might arise. In certain instances a landholder would 
 surrender his land to a powerful Lord only to carry out the 
 fiction of tenure by receiving it again.^ 
 
 This personal character of warranty survived the whole 
 feudal period, even after the notion was common that war- 
 ranty was a mere incident of tenure ; for at no time could a 
 disseisor of the tenant avail himself of the warranty. Brac- 
 ton f. 380 b; H. C. L. 386. But in time, as estates became 
 settled, and the giving and taking of land was no longer a 
 fiction, the chief value of the warranty became the tenant's 
 assurance of a hold upon the land granted him, and his 
 claim upon other land of the grantor if he should be ousted 
 from his possession.^ This personal contract grew to have 
 the effect of binding the land out of which the parcel was 
 granted, or if necessary, other lands of the grantor. How 
 this originated can only be surmised, but that it was the 
 law in Bracton's day is very clearly laid down. He says land 
 may be bound expressly, or by implication where the grantor 
 has other lands of value at the time. Bracton f. 382. And to 
 this end he cites a case where the assignee of the assets of 
 the warrantor was held to be bound to make good the war- 
 ranty, f . 387 b ; and he thinks it should bind the Lord hold- 
 ing the assets by escheat, f. 393 b. 
 
 That it first bound the land out of which the parcel was 
 granted may be especially significant. He says that where 
 the heir has not enough of that land he should make it up 
 from other lands descended from the ancestor who war- 
 ranted, f. 387 b. 
 
 1 See Maitland, Domesday Book and Beyond, pp. 71, 74. 
 
 a "Note I to Co. Lit 384b contains a full discussion of the oper- 
 ation of the -word 'grant' to imply a warranty. The legal import of 
 this term appears, in conveyances in fee simple, to have changed 
 ■with the alteration made in the relative situations of grantor and 
 grantee by the statute of Quia Emptores; but it may be observed, 
 as to its etymon, that it is merely a contraction of the verb 'guarantir' 
 'to warrant.' " Vin. Abr. Sup. tit. Grant, p. 15. 
 
■WHICH CONTROL EUNNING COVENAIfTS. 35 
 
 Every grant of a freehold implied this warranty ; and ex- 
 cept as altered by statute, its benefits continued in England 
 down to the abolition of all real actions in 1834, 3 and 4 
 "Wm. IV; Lit. sec. 143. But its occasion was limited. The 
 Statute of Gloucester confined the word "grant" to implying 
 a warranty for the life of the grantor only ; and the Statute 
 of Quia Emptores, 18 E. I (A. D. 1290), dispensed with 
 implied warranty almost entirely, for by making the feoffee 
 hold of the original lord instead of the immediate assignor, 
 no implication of warranty could be made for an estate in 
 fee. This was the occasion, then, for the hitherto rather un- 
 common express warranty to become universal, and for al- 
 lowing the old implied warranty to survive only in homage 
 ancestral. It survived in holdings by homage ancestral, for 
 in those there had been no assignments, the rights of both 
 tenants and lord descending continuously to their heirs with- 
 out interruption by any alienation. 
 
 Blackstone says, though without quoting authority, that ex- 
 press warranties had originated as a method of accomplish- 
 ing the alienation of the fee, which had been impossible 
 wfithout the consent of the heir, II Bl. Com. 301 ; and 
 later authorities believe this statement correct. Certain it 
 is that in the early law the heir had a right in the land during 
 the lifetime of the ancestor, II Pol. & ]\Iait. 246. So it was 
 customary to state in a deed that the heir consented to the 
 alienation, id. 249. And though by Henry II's time the 
 judges decided that alienation inter vivos was possible with- 
 out consent of heirs, II Pol. & Mait. 247, and this became 
 established by 1188, II Pol. & Mait. 310, in the meanwhile 
 the desire to alienate had discovered the express warranty 
 "which bound the heir and made his consent unnecessary. II 
 Pol. & Mait. 310, 311. This became the established use 
 about the year 1200 ; and from this probably arose the use of 
 warranty as a rebutter against the heir's claim to the inherit- 
 ance. 
 
36 THE PEINCIPLES OF COMMON LAW WAEEANTT 
 
 But how it was that the heir was bound by the warranty is 
 a more difficult point. Bracton's later law that the land 
 was bound was necessarily a derivation, else the law would 
 have been reasoning in a circle. It has been maintained that 
 it arose from the medieval idea of succession, based upon 
 the conception of identity of ancestor and heir. The histori- 
 cal support for such an explanation is very strong, Holmes, 
 Com. Law 346-7; and as the law was already becoming 
 merely a collection of effects resulting from the survival of 
 different tendencies whose causes had disappeared, such an 
 explanation may be correct. But if true, this notion of 
 identity between ancestor and heir was advancing in war- 
 ranty at the same time that the notion of identity was de- 
 creasing in the ownership and rights in the land. The 
 ancestor was binding the heir by a new obligation on the 
 ground of their being the same person, utilizing it as a device 
 to strip the heir of a right in property which the heir was 
 claiming as a different person, — through the law hitherto 
 dominant that the possession and rights of heirs should be 
 protected. Trom Bracton's day on we saw that the heir was 
 bound to warrant only to the extent of assets received; but 
 from Glanvill it appears that assets were not always nec- 
 essary, Glanv. VII, c. 2 (Beames' ed. 150), ib. c. 8 (Beames' 
 ed. 168), though later writers have explained that conflict by 
 the rather unlikely suggestion that the possibility of receiv- 
 ing assets was enough, Co. Lit. 373a, II Bl. Com. 301 ; and 
 while this indicates identity as well as anything else, yet 
 concurrent with this law was the necessity to name the heir 
 or assign to bind him. Besides, it appears that duties and 
 rights were allowed to arise by the mere mention in places 
 where identity would hardly explain. Such is the obligation 
 to pay X or his attorney. 
 
 So it is suggested that these obligations of the heir were 
 somehow dependent upon the mere mention of him, the con- 
 tract that the ancestor put upon him. "As to the hereditary 
 
WHICH CONTEOL EUNNIN'G COVENANTS. 37 
 
 transmission of a liability, this we take it was not easily 
 conceived, and when an Anglo-Saxon testator directs that his 
 ■debts be paid, this, so far from proving that debts can nor- 
 mally be demanded from those who succeed to the debtor's 
 fortune, may hint that law is lagging behind morality." — II 
 PoL &Mait. 256.1 
 
 It also suggests itself that an express mentioning of the 
 teir was allowed to bind him in express warranty, because 
 lie had always been bound by the implied warranty, it being 
 ■overlooked that the implied warranty which bound the heir 
 was really not the ancestor's warranty, but the heir's ovm 
 new warranty arising on his receiving the tenant's homage. 
 
 But whatever be the origin of its effect the early express 
 warranty soon came into very general use as a rebutter as 
 well as a guaranty; and while it worked fairly enough so 
 long as the ancestor had a fee in the land alienated, and 
 merely deprived the heir of lands which would have de- 
 scended from the warrantor, it was soon used to very harsh 
 ■effect as a sword against the heir by "rebutting" or barring 
 any and all claims the heir might make to the warranted 
 land, though the descent would not have been from the war- 
 rantor. A father, tenant by courtesy, began to alienate in 
 :fee with warranty, and so by letting the warranty fall upon 
 ihe heir would cut him out of his inheritance. This had to 
 be remedied by statute; and in 6 Edward I the Statute of 
 •Gloucester provided that these alienations should be voidl 
 against the heir except to the extent of the value of assets 
 received by descent from the father. The purpose of this 
 
 1 It is unnecessary to cite cases to show tlie unwillingness of the 
 law In a somewhat later period to hold heirs and successors to the 
 strictest moral obligations where there was no expressed indication 
 of an assumption of the obligation on their part. Such is the law of 
 ■uses well through the year books, so that heirs of a trustee were 
 not bound to the trust, and a wife got dower in the lands held to 
 uses. For a collection of these cases see Mr. J. B. Ames' Cases on 
 Trusts, 2nd ;Ed., pp. 345, 374. 
 
38 THE PEINCIPLES OF COMMOIT LAW WAEEANTY 
 
 statute seems sometimes to have been misunderstood, for it 
 is quite droll to read Mr. Butler's note to Co. Lit. 365a, ex- 
 plaining how the rebutter is merely of no effect in alienations 
 of fees-simple to which the ancestor had right. 
 
 But this statute did not remedy all the evils, for holders of 
 conditional fees, which would have been assets by descent, in 
 alienating the fees would use a warranty to cut off the heir 
 from reclaiming them; and so upon the enactment of that 
 celebrated statute De Donis Conditionalibus which created 
 estates-tail, 13 E. I, the courts construed it in analogy to 
 the Statute of Gloucester, and decided that the alienation 
 with warranty of an estate-tail would not bind the heir 
 except to the value of other assets received by descent. It is 
 evident from these restrictions that the law of Bracton, f. 
 61a, that a warranty can never bind the heir beyond the as- 
 sets received by descent, had not become unquestionably fixed 
 at the time of enacting these statutes. 
 
 But the requirement of assets to produce the rebutter in 
 these instances gave the confused impression later that in 
 other instances the old law still survived that a warranty 
 would be operative to bar the heir though he got nothing by 
 descent. Glanvill, writing before these statutes, said that 
 assets were not necessary. Then came the statutes. Then 
 Bracton's statement shows that the law had developed with 
 the steadily advancing ideas of justice to relieving the heir 
 entirely when without assets descended from the warrantor. 
 The whole fiction of collateral and lineal warranties as re- 
 butters, it is submitted, was allowed to survive from a failure 
 to notice when these statutes had been enacted ; for Littleton 
 says, sec. 711, "And note, that as to him that demandeth fee 
 simple by any of his ancestors he shall be bound by warranty 
 lineal which descendeth upon him unless he be restrained by 
 some statute." And so it was held that while on account of 
 the Statute of Gloucester a father tenant by courtesy could 
 not rebut his son by his warranty in alienating the land in 
 
WHICH CONTEOL EUNNING COVENANTS. 39 
 
 fee, the land descending to the son from the mother, yet a 
 father life-tenant might bar a son who happened to be a 
 remainder man (though in that case also there was no de- 
 scent to the son from the father), because the statute did not 
 name that case. This was elaborately set forth by Chief Jus- 
 tice Vaughn in Bale v. Horton, Vaughn 360, citing Holt in 
 12 Mod. 512. Compare, however, an apparently contrary 
 decision in Y. B. Mich. E. Ill, 50. 
 
 It is unnecessary here to go into the elaborate refinements 
 which arose in connection with lineal and collateral war- 
 ranties. For us it is of no use whatever, and for the student 
 of law history no writer will ever be able to supplant Little- 
 ton on that subject. Writing, as he did, at a time when their 
 use was at its height, he has probably told all about them that 
 it was ever of use to know. Moreover their origin has been 
 simply and carefully told in the first chapter of Eawle on. 
 Covenants for Title ; and it could be but rewriting his story 
 of them to discuss them here. 
 
 Meanwhile Bracton's notion that the warranty bound the 
 land found occasion for development, and the theory of iden- 
 tity of ancestor and heir received a blow. In Y. B. 20 E. I, 
 232, the court had said 'that the heir is the person of his 
 ancestor and so covered by a warranty.' But warranty being 
 a Common Law relation, the courts could not conceive that it 
 could cover more than one heir, and that the heir by the 
 Common Law. So a trouble arose when the warranty came 
 to be used in connection with gavelkind lands and borough- 
 english in its operation as a rebutter. Littleton, sec. 718, 
 says that in gavelkind only the heir at Common Law has the 
 warranty descend upon him; and in sec. 736 it is pointed 
 out that the eldest son only is bound; and Coke, 386a, 
 realizing the mere personal relation, points out that it is the 
 difference between a lien real and a lien personal. See also 
 Co. Lit. 376a ; and Brooke, Ass. 22, saying that it bars the 
 oldest only, and citing 44 E. Ill, 16. And note Y. B. 22 E. 
 
40 THE PEIJSrCIPLES OF COMMOH" LAW WAEEAH'TT 
 
 IV, 10, that a younger son cannot be vouched [called into 
 court to warrant] even though he had assets by descent. Sin- 
 gularly enough the case seems never to have arisen where 
 the effect of the rebutter had to be decided in connection with 
 the rights of female co-heirs by the Common Law. Perhaps 
 such a decision would have clearly explained whether the 
 operation of warranty was a personal succession or the mere 
 wish of an ancestor. 
 
 But however the judges decided the operation of the re- 
 butter in gavelkind, when the actual warranting by giving 
 more land for the land warranted came up, they could not 
 stand the injustice of the eldest son bearing the whole burden 
 while the others took their estates free. So in T. B. 11 E. 
 Ill, 181, the court said obiter that all having assets might be 
 called to warrant ; and they finally settled upon the rule that 
 the eldest must be summoned on strength of the warranty, 
 but all on their possession. Viner Voucher 36 ; Y. B. 38 E. 
 Ill, 22 ; Dyer 343b, 55 ; Hobart. 31 pi. 13 ; Cro, Jac. 218, 6. 
 
 It must not be conceived, however, that warranty had de- 
 veloped into a lien real. Eor while its effect had become lim- 
 ited to binding assets received by descent, Y. B. 7 E. II, 236, 
 Y. B. 13 E. Ill, 50, Brooke Gar. 23, and that while they were 
 in the hands of the prosecuted party, Y. B. 1 E. Ill, 2, F. 
 ISr. B. 134 I, citing 8 E. II Vouch. 237, the successor could 
 be held only when he had been expressly named. Brae. f. 
 380b, 6 ; F. K B. 134 H. ; Cf. Eleta, Bk. 2, ch. 62, sec. 10. 
 
 The rule may be deduced, then, that warranty bound lands 
 in the hands of the successor when the express contract indi- 
 cated that it should. That is to say, it ran with lands to suc- 
 cessors in the estate of the warrantor, and ran only as the 
 warrantor intended. 
 
 We come now to inquire who might have the benefit of the 
 warranty; and incidentally how it was enforced. Speaking 
 broadly its benefits ran to the grantee and the lawful succes- 
 sors to his title in the estate. It was enforced in one of two 
 
"WHICH CO]SrTKOL EUNNING COVENANTS. 41 
 
 Tvays; and as the Common Law was economical, these ways 
 were not concurrent. See F. ]S[. B. 134, 1 ; Com. Dig. Vouch. 
 Al ; 3 Bl. Com. 300. If the title of the tenant were in ques- 
 tion under a writ of entry, or other real action, his remedy 
 on the warranty was by voucher. He called or vouched his 
 grantor to warranty, and when the warrantor appeared, he 
 took the place of the tenant in defending the action. And 
 if judgment were given for the demandant in the action, the 
 tenant got judgment over against the warrantor for an equal 
 amount of land. Bract, f. 380b. 
 
 If, however, the action against the tenant were an assize to 
 prove the right to the land, he could summon his warrantor 
 by writ of warrantia chartae, as it was called; and if the 
 tenant lost in that action, the same judgment gave him judg- 
 ment over against his warrantor for damages. IsTow this right 
 to the tenant existed by implication wherever there was ten- 
 ure or homage, in the absence of stipulation to the contrary. 
 Bract, f. 3Y, sees. 10, 11. It existed before the Statute of 
 Quia Emptores in all cases. Glanvill Bk. 9, ch. 15. But as 
 that statute destroyed subinfeudation, and an assignment 
 brought no homage to the assignor, it destroyed implied war- 
 ranty by the assignor. So after that period implied warranty 
 of a fee existed, as we have seen above, only to tenants who 
 were descendants of original tenants, and who held of de- 
 scendants of original lords. This was tenure by homage an- 
 cestral, and was of course not affected by the statute. But 
 it existed to tenants in tail or for life ; for such holdings al- 
 ways are carved out of a reversion, and so are not affected by 
 the statute of Quia Emptores. Y.B. 18 E. Ill, 8 ; Y. B. 40 E. 
 Ill, 14; E. ISr. B. 134G; Lit., sec. 738; Co. Lit. 384b, 387a. 
 An implied warranty could not extend to a lessee for years 
 either before or after the Statute of Quia Emptores, for a ten- 
 ant for years held not his own possession, but his lessor's ; 
 Co. Lit. 389a, 384a, and Butler's note; and therefore there 
 was no tenure. This was hardly an accurate conclusion if 
 
42 THE PEINCIPLES OF COMMON I^W "WAEEAH'TT 
 
 the relation between landlord and tenant was merely personal, 
 but warranty had come to be considered an incident of tenure. 
 Cf . Holmes' Com. Law, p. 371 et seq. 
 
 Express warranty, however, had a very much broader oper- 
 ation. The Statute of Quia Emptores did not cut off express 
 warranties. In fact, we have seen that it enlarged them ; for 
 contract could vary the Common Law, Bract, f. 37, and ex- 
 press warranty could go wherever it was willed. It always- 
 had to be in writing, however, Lit. sec. 703, Co. Lit. 386a, 
 Shep. Touch., 186; and the writing was strictly followed. 
 Y. B. 20 E. I, 232.1 g^^ ^he method of calling to warranty 
 the first warrantor at once was not the earliest custom. It 
 seems that the attacked tenant called his own grantor, and 
 he in turn his grantor, until the grantor finally responsible 
 was reached. 
 
 Only in case of the death of the immediate grantor without 
 heirs could an assignee vouch his assignor's assignor. Erom 
 the connection in which Bracton lays this down Mr. Justice 
 Holmes thinks it clear that Bracton based it on the theory 
 that an assign was a quasi heir, and that the obligation fell 
 on him from his identity with the assignor. H. C. L. 374 ; 
 Bract, f. 17b. But be that as it may, in time the assignee 
 or his heirs was able to vouch to warranty the original war- 
 rantor, and so the law of express warranty reached its climax. 
 The right never extended to any but those mentioned. Bract, 
 f. 389b, sees. 7, 8, 11; but when so indicated it could extend- 
 to assigns. Bract, f. 380b, sec. 6, and f. 381 ; Co. Lit. 384-5 ; 
 Shep. Touch., 198. 
 
 But the personal nature of the contract of warranty still 
 survived. The right to enforce the warranty was not one 
 
 1 Bracton gives this form of express warranty: "I and my 
 heirs warrant to him and his heirs so much; or to him, his heirs 
 and assigns and the heirs of his assigns, or assigns of his assigns 
 and their heirs. And we will acquit and defend them in all that 
 land and its appurtances against everybody." Cf. Rawle, Govts, for 
 Title, p. 5, n.; Co. Lit. 383b. 
 
WHICH CONTEOL EUNNIITG COVEM"AIirTS. 43 
 
 "which any one could secure merely by having possession of the 
 land warranted. The tenant must be in of the same estate 
 as the original warrantee. He must be his heir or his legiti-' 
 mate assignee to have the benefit of the contract. Y. B. 43 
 E. Ill, 186 ; Y. B. 21 H. VI, 41 ; Y. B. 22 H. VI, 22. And 
 a disseisor could never enforce the warranty enforceable by 
 his disseisee. Y. B. 20 E. I, 232 ; Bract, f. 53a ; H. C. L., 387. 
 
 It is evident then, that the rule deduced for the running 
 of the benefit of express warranties is the same as that for the 
 running of their burden. It ran to those successors in estate 
 of the original warrantee to whom the original parties indi- 
 cated an intention that it should run. 
 
 Such are the principal features of the law of warranty 
 throughout the formative period of our present law. What 
 has become of it is of little importance in our present inquiry. 
 It existed under certain changes down to the abolition of all 
 real actions in 1834, Statute 3 & 4 Wm. IV; but had fallen 
 into comparative disuse since the development of covenants 
 for title. 
 
 After the Statute De Bigamis allowed damages for breach 
 of warranty it was but a matter of time before damages would 
 become universal. As warranties were in some cases sued on 
 as covenants (see supra), in time covenants instead of war- 
 ranties appeared in deeds. Mr. Kawle tells us that covenants 
 for title gained universal use after the Statute of Uses, 27 
 H. VIII, Ch. 29. As that statute dispensed with real convey- 
 ances, he thinks the old method of giving a real warranty 
 of title gave way as no longer fitting to the newer form of 
 conveyance generally in writing. But as the written war- 
 ranty had been for so many years in full sway, there would 
 seem nothing incongruous in the continuance of their use in 
 deeds of bargain and sale. While on the other hand, words 
 of covenant instead of words of warranty would be the direct 
 outcome of the right of remuneration in damages for failure 
 of title. It is not a surprise therefore to see Mr. Eawle him- 
 
 5 
 
44 PEINCIPLES OF COMMOISr LAW WAEEANTT. 
 
 self say that these covenants were frequently used before 
 Xing Henry's twenty-seventh year ; so that their use was per- 
 haps only enlarged as a consequence of the Statute of Uses. 
 
 But to learn much or little of these far-reaching covenants 
 it is indispensable to refer at once to Eawle on Covenants 
 for Title. Suffice it to say for the purpose in hand that those 
 covenants are confined to successors in of the same title — to 
 those who enjoy privity of estate ; and that the liability rests 
 upon the covenantor or his bound representatives who hold 
 assets by descent. As the remuneration is a matter of dam- 
 ages, assigns of the bulk of the land from which the parcel is 
 granted have never been regarded as bound to assist ; the law 
 has slipped away from them. 
 
CHAPTER III. 
 
 OEIGIN OF COVENANTS WHICH EUN WITH LAND. 
 
 As it has seemed most satisfactory to derive these cove- 
 nants from the early express warranties in deeds, it is at once 
 necessary to explain the grounds for such a conclusion as well 
 as to suggest reasons why other theories seem less to be 
 recommended. 
 
 It is probable that written warranties were among the earli- 
 est written contracts,-' although they may have been enforced 
 differently from other written contracts when they related to 
 a freehold, as the damages for breach of warranty were first 
 given in the form of other lands. But it is not difficult to 
 prove that the contractual relation was always so prominent 
 in warranties that they were commonly regarded as cove- 
 nants. 
 
 As we have seen, the express warranty followed the im- 
 plied warranty in time and the implied warranty applied 
 only to freeholds, so until statutes made recovery on all war- 
 ranties possible in damages instead of in land, it is not sur- 
 prising that their enforcement was limited to voucher.^ But 
 terms for years, being chattels and not involving tenure, were 
 regarded as incapable of implying warranty, so where war- 
 ranties were inserted in early leases for years, it would be 
 but natural to see them considered as simple covenants, as 
 there was nothing else to consider them. That this differ- 
 ence between freeholds and terms for years was rudimental 
 is evident from its duration in the minds of lawyers long after 
 damages could be recovered on any warranty. In Y. B. 26 
 
 1 II Pollock & Maitland Hist, of Eng. Law, p. 222. 
 2 For explanation of voucher see ante pp. 40, 41. 
 
 4.'> 
 
46 OEIGIIT OF COVEjSTANTS WHICH EUIT WITH LAjSTD. 
 
 H. VIII, 3, Brown J. said, "There is a diversity between 
 covenant real as a warranty of the fee or frank tenement, and 
 warranty of a chattel, for if I enfeoff you with warranty you 
 have no longer advantage of that covenant if you are not 
 tenant of the land. But if I lease land for a term of years 
 with warranty, the lessee has a brief of covenant against one 
 notwithstanding that he is ousted of his term — ^which was 
 granted by the whole court." 
 
 Very early, then, we see covenant brought on warranties in 
 leases. Bracton's Note Book, p. 204; and Fitzherbert says, 
 Abr. Gov. 21, "In time of Ed. I, note that it was agreed 
 clearly by all the justices and sergeants that if a man lease 
 land for a term of years and die during the term, if the lord 
 oust the termor, the tenant shall have action of covenant 
 against the heir at full age during his tenancy." And see 
 Fitz. Abr. Cov. 29, time Ed. I; also ib. 27; also ib. 26, 
 Mich. 34 E. 1 ; also ib. 24, Hil. 19 E. III. 
 
 A singular conclusion to the contrary was reached in Y. B. 
 30 E. I, 142, although the identity of covenant and warranty 
 was impressed all the more deeply upon the court. Covenant 
 on a warranty was brought by an assignee against an assignor 
 of a term for years, and the court held the writ would not 
 lie; because warranty would not lie where there had been 
 no seisin and there could not be warranty of a term for years. 
 Then this writ sought damages, 'which meant a tort, and 
 there had been no tort.' But the Statutes of Merton, 20 H. 
 Ill, 1 (A. D. 1235), Marlbridge, 52 H. Ill, 16 (A. D. 
 1267), and Gloucester, 6 E. I, 1 (A. D. 1278), had in the 
 meantime given the alternative of damages instead of other 
 land in cases of warranty, so but for other methods of pro- 
 cedure there would be opportunity to bring covenant every 
 time. 
 
 Covenant was allowed without comment in Y. B. 31 E. I, 
 196 ; and any subsequent infrequency of its appearance may 
 be attributed to the universal economy of the Common Law, 
 
OEIGIN OP COVENANTS WHICH RUN WITH LAND. 47 
 
 possessing already tlie exclusive methods of enforcing war- 
 ranty by means of the old voucher and the warrantia ehartae, 
 Tvhich were described in the previous chapter. 
 
 Leases are enough, however, to prove the important point 
 in this connection, that covenant was allowed on warranties 
 beyond the original parties. Assignees brought covenant on 
 these warranties in ISTote Book pi. 804, 2 Pol. & Mait., p. 
 222, Fitz. Abr. Gov. 27, time E. I; and thus was accom- 
 plished the first step in conforming the running of covenants 
 to the running of warranties. Covenants should run because 
 they were used as warranties, and express warranties ran be- 
 cause implied warranties ran. 
 
 Having reached the point, then, where the form of an 
 action on a running right might be "covenant," the step was 
 very easy to confuse its substance, and to allow other rights 
 conferred by covenant to run like the one running right which 
 was being enforced by an action of covenant ; and so we look 
 for other covenants affecting the land to run about the same 
 time. It would not surprise us in the light of previous dis- 
 cussion if they should have been only covenants in leases; 
 but either because the lawyers did not at first see that cove- 
 nant should not be brought on a fee warranty, or because 
 the whole idea of contract and warranty was one in their 
 minds, they allowed covenants other than warranties to run 
 with freehold estates in land. 4 H. Ill, 51, given in F. JST. B. 
 145; Y. B. 21 E. I, 136; Y. B. 4 E. Ill, 57. 
 
 It would seem clear enough, then, so far, how covenants 
 run with the land like warranties ; but it is here that a differ- 
 ent theory presents the argument that they diverge. It sug- 
 gests that covenants which run with the land are in the nature 
 of easements or rights issuing out of the land and have noth- 
 ing to do with warranties whatever.^ The material effect of 
 such a theory is not different so far as the practical working 
 
 1 For the elaboration of the theory that covenants are the result 
 of services see Holmes, The Common Law, p. 390 et seq. 
 
48 OEIGIN OF COVENANTS "WHICH EUN WITH LAND. 
 
 to-day is concerned. It would serve only to dispense with any 
 necessity of privity of estate and allow any holder of the 
 land to which the covenant is supposed to be attached to en- 
 force or be bound by the covenants. For a theoretical under- 
 standing of the law, however, the question is, of course, rudi- 
 ment al. 
 
 So far as covenants for warranty run with land it is thus 
 maintained by the supporters of the easement theory that 
 they have developed into the covenant for title alone, — and 
 indeed this origin of covenants for title seems beyond ques- 
 tion; Coke refers to warranty as a covenant real, Co. Lit. 
 365a, — while they say that other covenants affecting land are 
 not personal covenants at all, but are of the nature of rights 
 in the land like easements. 
 
 But the advocates of that theory do not contend that these 
 covenants originated in easements proper. Such a position 
 would be untenable. The easement from the earliest day, 
 while originating perhaps in a contract, had nothing to do 
 with imposing a personal relation. It was a grotesque con- 
 ception of an existing hereditament, a possession of an imag- 
 inary realty abstracted from land. 2 Pol. & Mait. 147, H. C. 
 L. 384. And as the obligation was by the land and not by the 
 person, the necessary conclusion was that this obligation by 
 the land could be only passive.-' Goddard on Easements, p. 
 
 1 "Easement is a privilege that one neighbor hath of another, by 
 writing or prescription, without profit; as a way or sink through 
 his land or such like. Kitch. f. 105." Termes de la Ley, Rastell's 
 edition, p. 319. 
 
 "An easement is a privilege without profit, which the owner of one 
 tenement has a right to enjoy in respect of that tenement in or over 
 the tenement of another person, by reason whereof the latter is 
 obliged to suffer or refrain from doing something on his own tene- 
 ment for the advantage of the former." Goddard on Easements, 
 p. 2. Bennett's ed. 
 
 Washburn on Easements, p. 38, says "it may be created 
 by a covenant of the owner of one estate with the owner 
 of another estate, that he should have a right to enjoy certain 
 
OEIGIH" OF COVENAH-TS WHICH EUIT WITH LAND. 4:9 
 
 17, points out that an easement is imposed upon the land, not 
 upon the person of the servient owner ; "therefore an obliga- 
 tion imposed upon him to do something for the benefit of the 
 dominant tenant is not an easement ; or in other words, there 
 can be no easement rendering it compulsory for the servient 
 owner to do something." So in Pomfret v. Eicroft, 1 Wm. 
 Saund. 322a, it was laid dovm that the grantor of a right 
 of way is not bound to repair the way, but the grantee can 
 enter and repair. 
 
 But while covenants may have nothing to do with proper 
 easements, a basis is found by ]VIr. Justice Holmes and others 
 for their development from certain improper or spurious ease- 
 ments, as they are called. These imposed active obligations 
 upon land and were enforced from an early day. Such was 
 the obligation to fence, or the obligation to repair. T. B. 18 
 E. Ill, 23, where there was an order to repair and damages 
 given. 11 E. II, cur. clau. 5 L., 5 E. Ill, 100, which were 
 orders to fence cited in Eitzherbert. And for the writs de 
 curia reparanda, and de curia claudenda, means of enforc- 
 ing repairs and fencing, see Eitzherbert Hat. Brev. 127, 128. 
 
 But it may well be doubted whether such a duty could ever 
 be imposed by the Common Law. In Tenant v. Goldwin, 1 
 Salk. 360, s. c. 2 Ld. Eaym. 1089, the question came to the 
 attention of Lord Holt, and he expressed himself as of the 
 opinion that such a right was impossible at the Common Law, 
 but that the writ- de reparatione f acienda must be based upon 
 a custom of the particular locality. And there is little doubt 
 that Eitzherbert thought the same thing ; for in Eitzherbert's 
 Natura Brevium 128, upon the writ de curia claudenda, it is 
 said that prescription must be alleged,' for if the claim be by 
 indenture or composition he shall be put to his writ of cove- 
 nant, citing 22 H. VI, and Book of Entries fol. 32 to sup- 
 port him. 
 
 profits or privileges out of the former." But for this he cites only 
 American cases, neeeasarily modern. Cf. Goddard, on Basements, 
 p. 89. 
 
50 OEIGIIT OF COVBNAITTS WHICH ETJN WITH LAND. 
 
 Gale on Easements, p. 530, also conies to the conclusion 
 that there was no such spurious easement at Common Law 
 as that to repair, believing Holt's view in Tenant v. Goldwin 
 sound ; and an able American opinion to the same effect was 
 delivered by Chief Justice Parsons in Loring v. Bacon, 4 
 Mass., 575. 
 
 Unluckily, however, there seem to be no cases where these 
 spurious easements had been created by writing at a time 
 when their decision would have been conclusive in support 
 of their having such a nature as would admit of it; as the 
 cases of obligation to repair were worded and decided as cove- 
 nants without expressly indicating the nature of the right, 
 whether against the land or the person. And little reliance 
 can be placed upon the wording of the writings by which 
 clearly proper easements have been enforced, partly because 
 they have arisen after the question of the nature of the cove- 
 nant had been confused, and partly because the discussion 
 of them had been after the law had lost whatever strictness 
 it may once have bad as to the wording of the instrument by 
 which a clearly definable right was intended to be granted. 
 
 And for the same reasons, conversely, the use of the word 
 ''grant," importing a covenant, would be of little assistance 
 to prove that a covenant is a grant of a right in the land, after 
 the formative period of the law had passed. Sheppard's 
 Touchstone, p. 231, tells us that while the words "dedi" and 
 "concessi" were the most apt to import a grant, others might 
 be used as well. And in Sir Orlando Bridgman's Convey- 
 ances, p. 165, in a covenant to pay taxes, the covenantor ex- 
 pressly did "covenant and grant to and with," etc., to pay 
 -taxes and assessments. "Covenant" operated as a grant in 
 Xord Huntingdon v. Mountjoy, 4 Lev., 147 ; and in Viner's 
 Abridgment under Grant, p. 51, may be found the following: 
 ^'Proviso semper and the vendee covenants with the vendor, 
 [his heirs and assigns that the vendor, his heirs and assigns 
 may dig for ore in the wastes of the manor sold ; this is a new 
 
OEIGIW OF COVENANTS WHICH KUN WITH LAND. 51 
 
 grant of an interest to vendor to dig in the wastes, and not 
 a bare covenant, but vendor cannot divide such interests. 
 Yendor may assign to several, but they must work together." 
 So in Hob. 51, a "grant" by the Bishop of Winchester that 
 the mayor might build on vacant lots in the city was taken 
 as a license or covenant. Mayor and Commonalty of Win- 
 chester's Case. But compare contra Jones v. Cloak, Hard. 
 48, citing Buckley's Case, 2 Co. Eep. and 11 Co. Kep., 48. 
 And note Holmes v. Seller, 3 Lev., 305, Vin. Gr., 104. 
 
 Moreover, an agreement to repair amounted to a covenant 
 in Sir J. Brett v. Cumberland, 3 Bulst., 363 ; s. c. Cro. Jac, 
 399 ; s. c. Popham, 136. Holder v. Taylor, Brownl. 23 ; s. c. 
 Hob. 12, pi. 24. 
 
 But at any rate these spurious easements or customs when 
 established by prescription did attach to the land itself and 
 the question resolves itself into this: Can these running 
 obligations be established by act of the parties ? and when 
 similar obligations are established by clear covenants, do they 
 necessarily have the same effect and run without reference 
 to privity of estate, attaching to the land itself, however ac- 
 quired ? 
 
 Customs were not limited to fencing and repairing. There 
 was the duty, based upon custom, to keep a bull and a boar 
 for the use of a parish. Yielding v. Fay, Cro. Eliz., 569. 
 And there were numerous instances of the duty, based upon 
 prescription, for a prior to provide singing periodically in a 
 chapel on a certain manor. Y. B. 21 E. I, 182 (semble) ; 
 Y. B. 22 H. YI, 46, Prior of Wobum's Case, where "cessavit" 
 was allowed against the abbot for not singing in the plain- 
 tiff's chapel. 
 
 Two active duties established by contract and generally 
 thought to go with the land itself, were homage and rent; 
 and on these some importance is laid. But the duty seems 
 iardly of the nature in question. The obligation of homage 
 was to the lord, and however tenants disseised each other. 
 
62 OEIGISr OF COVENANTS WHICH RUN WITH LAND. 
 
 the lord was not affected so long as the tenant chose to give 
 him homage and he chose to take it. It was clearly a personal 
 relation/ one of the features of the contract of warranty 
 itself ; and each new occupant became a tenant when the lord 
 accepted his homage.^ It hound the land, because the lord ex- 
 pected it of every occupant of the land, and if one tenant 
 disseised another the lord would turn the disseisor out if he 
 did not give the homage. So far as the lord was concerned 
 there was no disseisin of him until the tenant refused to give 
 the homage. Holmes, Com. Law, 288, citing Bracton f. 46b. 
 
 And the same may be said of the active duty involved in 
 rent ; for only when the disseising tenant refused to attorn to 
 the lord, and to pay him rent, did the lord lose his right of 
 distraint and become disseised. Holmes' Com. Law. 389. 
 
 In the sense of rents granted between parties other than 
 in the feudal relation it is true that rent did attach to the 
 land so as to give right against disseisors. And in this sense 
 rent does furnish an analogy to the other cases of customs. 
 The instances of rent so attached to the land and binding any 
 holder are too numerous to require mention, as rent has al- 
 ways been recognized as a subject of grant ; and is, at least in 
 later years, as often enforced by .action of covenant perhaps 
 as in any other way. Thus it was held that the term 
 "reddendo" in a deed imported a covenant to pay rent. Viner 
 Abr. Covt., p. 378 ; Harper v. Burgh, 2 Lev., 206. 
 
 But it seems that in the early year book cases when rent 
 was enforced by covenants the rent was stipulated for by 
 means of a covenant; see T. B. 21 E. I, 136; and in Y. B. 
 
 1 Bracton, f. 382, says that the lord who has taken homage is 
 bound to a warranty through the homage taken by him; unless, 
 indeed, it is stipulated to the contrary. Bracton, f. 390b. 
 
 2 Note Keilway, 130 pi. 104. The court there said: "For if any 
 true tenant be disseised, if I wish I can then accept the disseisee 
 [disseisor?] for my tenant, and then is the fee simple in the disseisor, 
 and he holds this of me, for he cannot compel the lord to avow 
 upon him." 
 
OEIGIN OF COVEJTANTS WHICH EUH" "WITH LAND. 53 
 
 22 E. IV, 1, covenant was allowed because the rent was 
 granted in a fine, and the court said a fine was a covenant 
 in itself. Y. B. 22 E. IV, 14, is not clear, but in Y. B. 14 
 H. VII, 14, where the action was against a disseisor the form 
 of action was debt. And of. Watts v. Ognell, Cro. Jac. 192. 
 Moreover rent had so long been regarded as a right distinctly 
 capable of actual possession that these other rights under 
 present considerations rising subsequently, however similar to 
 rent in some respects, need be by no means identical in 
 nature. 
 
 Homage and rent must be left out of consideration, and we 
 return to the rights clearly based upon prescription and their 
 handling in connection with covenants. Of these the forma- 
 tive period of the law gives us three cases. In Y. B. 21 E. 
 I, 182, covenant was brought for not singing in a chapel, the 
 plaintiff alleging that he was seised of the singing. . The de- 
 fense was that so alleging he could not sue in covenant. The 
 court said, "Do you think he could not recover even if he 
 had not alleged seisin?" The case went off on the question 
 whether the plaintiff was to furnish chalices and vestments, 
 so it may seem that they were inclined to allow the action, 
 though the right was distinctly based upon prescription. But 
 it does not indicate that a covenant establishing such a duty 
 would not confer a different kind of right from that based 
 upon prescription. 
 
 The next case is Pakenham's Case, Y. B. 42 E. Ill, 3, 
 where the right was established by a distinct covenant by the 
 defendant's predecessor to sing in a chapel of the plaintiff's 
 ancestor, and there is certainly great doubt what was the 
 ground of the decision. After being turned out of court on 
 his claim as being heir, being only a younger son, the plain- 
 tiff proved himself assign of the manor and alleged privity of 
 estate. The court spoke of personal covenants, privity of 
 estate, grants, and prescription, and finally allowed the plain- 
 tiff his action; Thorpe allowing it apparently both on ac- 
 
54 ORIGIN OP COVENANTS -WHICH BUN WITH LAND. 
 
 count of privity of estate and because he alleged the running 
 of the duty time out of mind ; and Finchden because it was. 
 a covenant, while Wyckinham seemed to think the covenant 
 would not run. As there seems not to have been any passing- 
 of land between the original parties, the case may have been 
 based upon prescription, or it may have been based upon the 
 idea that the right created by the covenant attached to the 
 plaintiff's land; but if it does decide that this duty can be 
 created by a covenant, it stands for the proposition merely 
 that under circumstances which show such an intention a 
 covenant may operate as a grant ; it does not decide that all 
 covenants are grants of incorporeal hereditaments. 
 
 The third case is Home's Case, Y. B. 2 H. IV, 6. There 
 the plaintiff alleged a covenant between the defendant's prede- 
 cessor and his own ancestor to sing in a, certain chapel, but 
 it was not proved clearly that the plaintiff owned the chapel 
 though he seems to have proved himself heir. One of the 
 judges said that if the covenant runs upon possession of the 
 manor the plaintiff as heir should not have action. But some- 
 how they thought that the matter was merely spiritual and it 
 mattered not whether the plaintiff owned the manor or not, 
 as he would derive as much good from the singing in the 
 chapel of another; and so they allowed the action. It can 
 hardly be said, therefore, that the case decides anything. It 
 says nothing to indicate the right as an incorporeal heredita- 
 ment, and if it gave the action merely because the plaintiff 
 was heir it is no longer law. 
 
 The first case then was a right based upon prescription, 
 probably enforced by an action of covenant ; the second was a 
 covenant, perhaps enforced as conferring a right like those 
 based upon prescription ; the third adds nothing. Then the 
 
 > most that the three cases represent is that certain incorporeal 
 rights may be created by covenant and run as easements, and 
 
 , may be enforced by the action of covenant. If the cases de- 
 cide this their soundness may well be doubted in the light of 
 
OEIGIBT OF COVENANTS WHICH EUN WITH LAND. 55 
 
 the rise and theory of easements. Certainly no basis for 
 imposing such rights in land can be traced to a rudimentary 
 theory in the Common Law. Everything would seem to point 
 to the soundness of- Lord Holt's conclusion that active obliga- ^ 
 tions when inhering in the land are mere local customs en- 
 forced by the courts. 
 
 But assuming that the law does accord- with the construc- 
 tion of these three cases in support of active easements. before 
 it is accepted that every active duty created by covenants in- 
 heres in the land as an incorporeal hereditament it is neces- 
 sary to examine other early cases enforced clearly as cove- 
 nants. 
 
 In Fitzherbert's I^atura Brevium, 145-, a case from 4 H. 
 Ill, 57, is noted. "A man covenants that neither he nor his 
 heirs shall erect any mill in such a place, and afterwards he 
 erects a mill, and an action of covenant is thereby brought 
 by the heirs,, and well." It can hardly be said that this agree- 
 ment is by nature an incorporeal hereditament nor can it be 
 assimilated to a right based upon prescription. 
 
 Again in Y. B. 21 E. I, 136, the assignee of a covenantee 
 sued on a covenant to grant a rent if the covenantee's land 
 would not produce sixteen shillings' worth. The rent had nolT 
 been granted, but it was a covenant to grant a rent, the cove- 
 nant being with E., his heirs and assigns. There was no 
 incorporeal hereditament granted here, and it was enforced 
 against the covenantor's heir. 
 
 But the case which seems to throw most light on the ques- 
 tion is in Y. B. 4 E. Ill, 57. N. Abbot de H. brings covenant 
 against Eobert de C. upon a covenant between the Abbot's. 
 predecessor and one Roger, the defendant's ancestor. Roger 
 had granted a mill to the Abbot and his successors, and cove- 
 nanted that neither Roger nor his heirs would build another 
 mill on the same tenement without the Abbot's consent. After 
 considerable argument it appeared that a mill had been built 
 in the ancestor's time and the heirs had merely refused to 
 
56 OEIGIN OF COVENAITTS WHICH EUN WITH LAND. 
 
 tear it down. It was questioned whether an action could be 
 brought by the successor against the heir and whether there 
 could be judg-ment that the mill be torn down. Finally the 
 court ordered the defendant to answer over, the defendant, 
 however, calling for judgment on the count because it was 
 sought to hold him to the ancestor's covenant without prov- 
 ing assets by descent. 
 
 So in 7 E. Ill, 65, the case came up again, the Abbot ask- 
 ing judgment for time past and a destruction of the mill 
 for the future. The defendant's counsel said, "Tou do not 
 assign any tort that Robert has done, nor do you assign any 
 tort in our time; for you assign that the mill was built in 
 time of your predecessors and our ancestors." The Court 
 replied, "If it be law that the covenant is binding between 
 the parties and the heirs of one party and the successors of 
 the other party so that the covenant is perpetual, the covenant 
 will first also hold against the heir of the party as against 
 the party himself. So if he shall be able entirely to perform 
 the covenant in its nature, he shall do it ; and if not he shall 
 do what he can. And if he be tenant of the mill he shall de- 
 stroy the mill for the future," etc. 
 
 But that did not seem to satisfy all, for Shard replied, 
 *'Sir, the record appears that Eobert thus continued the tort 
 which his ancestor did," but added, "Still he is tenant of 
 the min, and so he can destroy the mill." But the defendant 
 said, "The covenant is not made to destroy the mill, and more 
 it is framed upon negative words which do not bind in law," 
 citing the promise not to sow land as unenforceable. To 
 which the Court said that would be so were there no covenant, 
 but a covenant made it otherwise. 
 
 Though the case may have been the enforcement of the 
 ancestor's covenant, there was no question that the covenant 
 could bind the parties' heirs and successors perpetually, for 
 breaches in their own time of holding, l^or is there any 
 suggestion that the nature of the right is anything but a 
 
ORIGIN OP COVENANTS WHICH BUN "WITH LAND. 57 
 
 covenant. The parties all describe it as such, operating on 
 the person of the successors in title, provided they hold the 
 land. And as the case has nothing of the muddiness that 
 pervades Pakenham's Case and Home's Case, it may be ac- 
 cepted without much hesitancy as indicative of the state of ' 
 the law. 
 
 And why should not the form of the covenant indicate 
 best its origin? Why should he name his heirs and assigns 
 if it were not originally necessary that they be named as in 
 warranty? Surely much would be necessary to prove any- 
 thing but a personal relation in such an obligation. The 
 party covenants for his successors in title to perform the 
 agreement to the successors in title of the covenantee. Unless 
 some broader intent can be proved, why should others be in- 
 cluded ? It will be assumed, then, in discussing the law of 
 covenants that they have their origin in warranty, and that 
 only privies in estates are concerned in their operation. 
 
OHAPTEE IV. 
 
 THE LAW OF COVENAM-TS DOWN" TO THE STATUTE OF 
 32 HENET VIII. 
 
 It was attempted in the preceding chapter to prove that 
 the action of covenant early operated to enforce the relation 
 of warranty, and that the right to make use of such an action 
 was allowed to run with the land. It was also shovm that 
 almost simultaneously with that practice covenants to per- 
 form other obligations than warranty were enforced between 
 land holders other than the original parties to the covenant. 
 This was introduced to show that the running of these cove- 
 nants originated in the running of warranty with the land. 
 But irrespective of their origin, those cases prove another 
 and more important fact, and that is that these covenants 
 to perform various duties did run, benefits and burdens, with 
 certain lands. Singularly enough this has been almost uni- 
 versally denied in modern times, and while, as we shall see 
 later, there have probably been no modern decisions on the 
 point in England, there has been a great deal of dictum and 
 enough cursory discussions of the subject to have a great 
 effect upon the law. 
 
 What brought about the idea that covenants could not run, 
 it is difficult to say. Presumably it arose from a miscon- 
 ception of the full purpose of the Statute of 32 H. VIII, c. 
 34, and a misunderstanding of the preamble of that statute. 
 The statute will be examined in the next chapter, to see how 
 far it warranted an inference that at its passage covenants 
 did not run, but later judges so expressed their conclusion as 
 to the Common Law. And as some very great judges made 
 these statements, they have been quite generally accepted 
 
 58 
 
THE STATUTE OE 32 HENBT VIII. 59 
 
 ever since. I Wm. Saunders, 240, n. 3, to Thnrsby v. Plant ; 
 Barker v. Damon, 3 Mod., 337; Thrale v. Cornwall, I Wils., 
 165, and Webb. v. Eussell, 3 T. E., 401, give some of tbe 
 instances where the opinion was expressed that covenants 
 did not run generally with the land at Common Law. But 
 perhaps the chief medium in bringing about a frequent re- 
 iteration of that notion is the collection of cases and their 
 exposition given in the notes to Spencer's Case in the various 
 editions of Smith's Leading Cases. And to greater compli- 
 cate matters, it appears from the study of cases there made 
 that the benefit of covenants was allowed to run with land to 
 others than the contracting parties, and that the limitation 
 of the Common Law fell only upon burdens. It becomes in- 
 teresting, then, to see what was the law of covenants running 
 with the land down to the Statute of 32, H. YIII, and then 
 to see what effect that statute had upon the law. 
 
 Regarding warranty as a basis, it may be tentatively ex- 
 pressed that the benefits and burdens of covenants should 
 run alike so far as heirs and assigns are mentioned in the 
 covenant, the lands themselves always being assets to meet 
 the claim. There should be the transfer of some sort of in- 
 terest in land; privity of estate should be necessary, and 
 somehow the covenant should affect the land. 
 
 Several difficulties must have arisen from the essential 
 difference between the obligation to warrant and almost any 
 other obligation that a covenantor might assume. In the 
 first place a warranty necessarily affected directly the land 
 conveyed, so no question could arise as to the relevancy of the 
 obligation to the land in whose hands soever the land might 
 be. But as a man might covenant to do any conceivable thing, 
 the point might often be raised that a particular covenant 
 was too remote to be allowed to follow the land to new parties. 
 From this quandary the medieval lawyers were not without. 
 an escape. They asserted that covenants to run must touch or 
 concern the land, and judging upon this uncertain require- 
 
 6 
 
60 THE LAW OP COVENANTS DOWN TO 
 
 ment they ruled out many covenants as merely personal, and 
 enforceable between the original parties alone. 
 
 In tbe second place, a warranty, involving the possible duty 
 to give other property to the value of the property granted, 
 was necessarily a direct burden on any other land the war- 
 rantor might have, and especially upon that out of which the 
 parcel was granted. That is, it immediately concerned all the 
 warrantor's lands. But a covenant, thotigh touching and 
 benefiting the covenantee's land, might have no connection 
 whatever with lands of the covenantor. Such was the 
 covenant of a prior to sing periodically in a landowner's 
 chapel. If the prior's covenant did not burden any particular 
 land, there would be no reason why it should be anything 
 but a personal obligation. It is evident that the trouble is 
 fundamental. Warranties from their nature can rest as obli- 
 gations upon the grantor's side only, as it is he who must 
 furnish more land; while covenants can lie as obligations 
 upon either the grantor or grantee. Therefore, the burden 
 must directly affect the covenantor's land, though he be the 
 grantee. 
 
 In the third place, the warranty, it will be remembered, 
 did not bind alone the remainder of that parcel out of which 
 the warranted portion was granted. It bound secondarily all 
 other lands of the warrantor. So from similarity it would 
 seem that it is enough if the burden of a covenant affected 
 any land of the covenantor. But it generally appears, pos- 
 sibly to avoid remoteness, that covenants bind only particular 
 lands, the grantor's covenant burdening only the remainder 
 of the land from which the parcel passed, and the grantee's 
 binding the particular land received. The ordinary case is 
 such as a covenant not to build beyond a line on the granted 
 premises, for the benefit of remaining lots, a covenant to keep 
 clean a drain from the grantor's premises through the granted 
 premises, a covenant to keep up a way on the granted prem- 
 ises for the benefit of the grantor's premises. While this 
 
THE STATUTE OF 32 HENET VIII. 61 
 
 may not be absolutely followed in the requirement that the 
 grantee's covenant affect other lands of the grantor; for in 
 some~"cases, as vfhere a land company may grant its last lot 
 with restrictions, the grantor may have no other lands left ;^ 
 so far as has been observed the grantee's covenant must bur- 
 den the received premises, and no other. 
 
 A fourth problem will arise as to whether it is necessary 
 that land pass between the parties, as in case of warranty, 
 in order to institute a covenant which can run. While, as 
 was seen in the first chapter, there is some doubt as to that 
 in the early cases, it has been generally settled in modern 
 times that a covenant cannot run in the air. Indeed in Eng- 
 land an incorporeal hereditament is not enough to insure 
 the running of a covenant. Eandall v. Eigby, 4 M. & W., 
 130 ; Mines v. Branch, 5 M. & Sel., 411. But for the law 
 on this point reference may be had to later chapters. 
 
 Tor the verification of propositions thus set forth it is nec- 
 essary to examine the reported cases of covenants gathered in 
 their order from the Year Books. The first case we have on 
 covenants is given by Fitzherbert, F. IST. B., 145, note, and 
 purports to be taken from the roll of 4 H. Ill, 51, which is 
 not in print. It is as follows: "A man covenants that 
 neither he nor his heirs shall erect any mill in such place, and 
 afterwards he erects a mill, and an action of covenant is there- 
 upon brought by the heir, and well." And Fitzherbert con- 
 tinues, "and so it is if the lessor oust the lessee and dies, or 
 tenant in tail leases for years and dies and the issue ousts the 
 termor, he shall have covenant against the executors." 
 
 It is not stated that this was accompanied by the passing 
 of land, but from Fitzherbert's talk about leases, it would 
 appear that he thought that it was. The covenant touched or 
 concerned both pieces of land, and it would seem that it was 
 intended to burden the land of the covenantor, for he cove- 
 nanted that his heir should not build. The enforcing it be- 
 
 1 And see Moore, 179, pi. 318, post, p. 66. 
 
62 THE LAW OF COVBITANTS DOWIT TO 
 
 tween heirs for the breach of the ancestor means nothing, how- 
 ever ; for the executor had not yet developed and the covenant, 
 though personal, might have been enforced in the same way. 
 But the statement in Fitz. Abr., Govt. 30, giving Mich. 18 
 H. Ill, that "action of covenant was maintained by assign 
 by agreement of court for term of years," if true, would show 
 that at least benefits could run to assigns. That the benefit 
 may ru.n seems to be farther proved by the next two cases. 
 In Y. B. 21 E. I, 136, there was a covenant by W. to one 
 Roger, his heir and assigns that W. would enfeoff the cove- 
 nantee, his heirs and assigns of 16 shillings rent in ITapitone 
 if it could not be conveniently provided from other lands of 
 the said Koger. The action of covenant was brought by 
 Roger's assignee against the heir of the covenantor. This 
 seems to be a sort of guaranty that certain lands of Roger, 
 possibly granted him by W., should yield 16 shillings rent. 
 The holding the heir again proves nothing, but it appears 
 clearly that an assign can sue on a covenant, although he 
 may have been merely assignee of the rent which W. had 
 covenanted to grant. Y. B. 31 E. I, 142, allows an assignee 
 to sue on a covenant of warranty, so, however cloudy the pre- 
 vious case might be alone, taken together there is little doubt 
 . that all that time covenants could run, at least so far as bene- 
 fits are concerned. 
 
 The running of burdens, finds recognition in Y. B. 4 E. 
 Ill, 5Y, reheard in Y. B. T E. Ill, 65, and as this is the only 
 case except those running against corporations sole, and 
 those involving the burdens in leases, it must be carefully 
 considered. The case has been discussed already in the third 
 chapter to show that covenants were not regarded as creating 
 mere incorporeal hereditaments. The action was brought by 
 an abbot against an heir whose ancestor had granted a mill 
 to the abbot's predeoessoT, covenanting that neither the 
 grantor nor his heir would build another mill on the same 
 tenement without the abbot's consent. The covenant had 
 
THE STATUTE OF 32 HEKET VIII. 63 
 
 iDeen broken in the covenantor's own life time, and the case 
 involved miich discussion about holding heirs on ancestors' 
 -covenants. But the remark of the defendant, "ISTor do you 
 assign any tort in our time, for you assert that the mill was 
 built in the time of your predecessor and our ancestors," and 
 the reply of the court, "if it be law that the covenant is bind- 
 ing between the parties, and the heirs of one party and the 
 successors of the other party so that the covenant is perpetual, 
 the covenant will first hold against the heir of the party as 
 against the party himself," and the subsequent statement, 
 "Sir, the record appears that Robert has continued the tort 
 which his ancestor did," — all show the idea accepted that the 
 burden of a covenant can run with the land, though this one 
 may have been enforced as a personal covenant of the an- 
 cestor. 
 
 Other ordinary features in the running of covenants clearly 
 appear ; there was a grant of land, and the covenant touched 
 both pieces and bound the remaining portion of the land of 
 the grantor. There was privity of estate between all the par- 
 ties, and the heir was expressly named as bound. 
 
 It was said that this was the only case clearly setting forth 
 the running of burdens, not because there is anything in other 
 cases to point out a contrary view, but because other cases 
 have been claimed to rest upon other principles. The next 
 two cases were Pakenham's Case and Home's Case, in which 
 the burden was enforced against an abbot's successor, and 
 it has been suggested that the defendant, being a corporation, 
 was perhaps bound personally as an entity without reference 
 to the running of the covenant. It is very doubtful, however, 
 whether the conception of a corporate entity had by that 
 time sufficiently impressed itself upon the lawyers to enable 
 them to conceive of such an effect. Land given to a corpora- 
 tion sole had to be given to the abbot and his successors, and 
 while the idea of a special capacity of holding as bishop or 
 abbot may have been realized, at the rise of these cases it is 
 
64 THE LAW OF COVEITANTS DOWN TO 
 
 not likely that the notion that the successor was the same per- 
 son and not a new person and that the obligation was the 
 same obligation and not a new obligation were yet to be ex- 
 pected. Compare the discussion of fictitious persons in 
 I Pollock and Maitland's Hist. Law, 485, et seq. The idea 
 of a corporation as a never dying person is very different 
 from the idea of identity of ancestor and heir ; for while the 
 latter may be recognized by Bracton, in his time the idea of 
 personal right accruing to an abbot and being transmitted 
 to his successors is clearly repudiated. "Each successive 
 abbot might sue for lands of which the church had been dis- 
 possessed during the abbacy of one of his predecessors, but if a 
 claim for compensation in respect of some unlawful act, such 
 as an abstraction of the church's goods, accrued to one abbot, 
 it died with him and was not competent to his successor. 
 Actio personalis moritur cum persona, and here the person 
 wronged is dead, for he was a natural person and could die. 
 To make the law otherwise a clause in the Statute of 1267 
 was necessary (St. Malbridge)." I Pol. & Mait., p. 485. 
 
 If, then, the connection between predecessor and successor 
 in a corporation sole was not the identity of a corporate en- 
 tity, it was the same as the relation between any ancestor 
 and heir ; and it was handled as the same thing in the case in 
 7 E. Ill, just discussed, where the court said, "If it be law 
 that the covenant is binding between the parties, and the heirs 
 of one party and the successors of the other party so that the 
 covenant is perpetual." Therefore actions allowed for 
 breaches occurring during the holding of successors must sus- 
 tain the running of burdens, as a covenant broken by the 
 holder of the land and affecting him personally as successor 
 or heir of course binds him for the sole reason that he is 
 successor to the land. In Home's Case and in Pakenham's 
 Case, however, while the breach was by the successors, the 
 nature of the covenant was such that it has been doubted 
 whether it did really bind them as holders of land. The 
 
THE STATUTE OF 32 HENEY VIII. 65 
 
 covenant vs^as a covenant to sing or to hold service in a chapel 
 on the covenantee's land. This Mr. Justice Holmes calls a 
 service and says the burden of it "does not fall upon 
 land even in theory, but the benefit . . . might go at 
 Common Law with land which it benefited." H. C. L., p. 
 405. But it must be observed that in neither Pakenham's 
 Case nor Home's Case was the obligation upon the defendant 
 discussed, all the argument being about the running of the 
 benefit. So while the duty was a peculiar one, considering 
 that it was an obligation binding upon a successor in title as 
 a successor's obligation apart from any idea of corporate 
 continuance, it is not improbable that it was interpreted as 
 an obligation binding the successors as holding some ecclesi- 
 astical possession. 
 
 The fact that it ran without a grant of freehold, and the 
 question whether it was an attempt to create an incorporeal 
 hereditament by means of a covenant have been considered 
 in the third chapter. Indeed if it was an attempt to create 
 an incorporeal hereditament, it can hardly have been any- 
 thing else than a burden imposed upon some land and run- 
 ning as such. As an obligation imposed as an easement or in- 
 corporeal hereditament it is not conceivable as anything else, 
 for all easements are rights gained against land, the peculiar- 
 ity of this being merely its active nature. 
 
 One other case recognizing the running of the burden of 
 covenants is reported in Brooke's Abridgment, Covenant, 32. 
 It professes to abstract a case decided in 25 H. VIII, and 
 was probably the last case involving these covenants before 
 the Statute of 32 H. VIII. Brooke says that an assignee of 
 a lease for years imposing a covenant to repair, was held 
 liable to the lessor on the covenant, adding that the assignee 
 may sue the lessor also on covenants by him. Before the 
 Statute of 32 H. VIII, there was no essential difference be- 
 tween the assignee of a lease subject to a covenant and the 
 assignee of a fee subject to a covenant, so far as so called 
 
66 THE LAW OP COVENANTS DOWN TO 
 
 privity of contract was concerned ; so there really appears no 
 reason why the proof of the running in one case should not 
 prove the running in the other. The later lawyers were un- 
 willing to grant that, however, and so the statement was made 
 probably on the authority of this case, though not declaredly 
 so, that before the Statute of 32 H. VIII, at Common Law 
 covenants ran with the lease, but not with the reversion. 
 I Wm. Saund., 240, IST. 3; on Thursby v. Plant; Webb v. Eus- 
 sell, 3 T. K., 401, per Lord Kenyon. So, however convincing 
 the case in Brooke may be to the investigator, it would be 
 generally accepted as of little value in supporting the argu- 
 ment that the burden of covenants run with land. 
 
 Little appears in the cases immediately after the statute 
 to throw great light on the law before the statute was enacted. 
 Indeed the question seems to have been little discussed. Moore 
 reports a case, however, decided late in Elizabeth's reign, 
 which seems to endorse the running of benefits; and while 
 it comes too late to be convincing proof of the early law, it 
 may be regarded as cumulative evidence. Moore 179, pi. 
 318, reports that, "a man made feoffment by deed indented, 
 receiving rent, suit at court, and relief, and by the deed the 
 feoffor granted that if the feoffee, his heirs or assigns should 
 be distrained to perform several services reserved in the deed, 
 then it should be allowable to the feoffee, his heirs and assigns 
 to distrain in the manor of D. and hold the distress until 
 they should be satisfied by so much as they had sustained in 
 damages by reason of the said distress. The feoffee made 
 feoffment over, and accordingly he moved if the second 
 feoffee might distrain, and the court said so because the cove- 
 nant ran with the land. And per Perriam, J., if the word 
 'assigns' was not there nevertheless the word 'heirs' would 
 avail to guarantee the distress to the assign." 
 
 The learned editor of Smith's Leading Cases seems to 
 liave overlooked this case, for he does not rely upon it in 
 making his distinction between the running of benefits and 
 
THE STATUTE OF 32 HENEY VIII. 67 
 
 the running of burdens. But while the case makes no such 
 distinction, as the distinction has been taken by this im- 
 portant reviewer and later judges, the case will not weigh 
 much to prove that covenants generally run with land. It 
 ■does help to this extent, however, that it attacks the sound- 
 x.ess of statements that covenants running at Common Law 
 were confined to leases, and if acceptable to that end, it elim- 
 inates Sergeant Williams, Lord Kenyon, and their associates 
 from those to be met in the argument as to the running of 
 covenants, and leaves only the editor of Smith's Leading 
 Cases and more recent judges. 
 
 But before laying aside the early law recurrence must be 
 had to Pakenham's Case and Home's Case to investigate 
 other points not so thorough-going but yet very important in 
 an interpretation of the law. In Pakenham's Case, Y. B. 42 
 E. Ill, 3, there was a covenant by a prior for himself and 
 his successors to sing in a certain manor of the plaintiff's 
 ancestor, but it does not appear that the covenantee's heirs 
 and assigns were mentioned. As a matter of fact the plain- 
 tiff turned out to be a younger son and so could claim only 
 as an assign. Mr. Justice Holmes says it is generally taken 
 that assigns were not mentioned, and presents the absence of 
 mention as evidence that the right conferred by the cove- 
 nantor was a hereditament and not a mere covenant. The 
 conveyance of such a service could hardly require mention of 
 assigns, it is true, if properly made ; but granting that such 
 was here intended, conveyed in the language of a covenant, 
 it is strange that all the requirements of covenants were not 
 carried out, as earlier authorities seemed to require in as- 
 sumed obligations the mention of assigns. Moreover the 
 exact wording of the covenant is not given, so it is not ex- 
 actly safe to assume that assigns were not named. It was 
 very early to find the law carrying a covenant according to 
 the real intention of the parties instead of confining the 
 running to the letter of the creating instrument. Brooke, 
 
68 THE LAW OF COVENANTS DOWN TO 
 
 Covenant, 32 (discussed above), reporting from 25 H. YIII, 
 that the assigns of a lease may sue the lessor, adds that it 
 might be done without the assign being named, and for this he 
 cites 48 E. III. But as no such statement is reported in 48 
 E. Ill, Brooke's . statement can hardly be relied upon. So 
 the first clear statement of such an implication appears in the 
 case reported above from Moore, 179, pi. 300, where the 
 benefit of a covenant was allowed to run to an assign, and 
 Perryam J. said that the word "assigns" was not there, but 
 that the word "heirs'" would avail to guarantee the distress 
 to the assigns. Not very much, therefore, can be deduced, 
 one way or the other, from the alleged omission of assigTis 
 from the covenant in Pakenham's Case. 
 
 But a larger difficulty with the case, if it is to be regarded 
 as a precedent for the law of covenants, is that there was 
 apparently no transfer of land between the original parties ; 
 indeed the covenanting prior seems to have had no connection 
 whatever with the land on which he had to sing. Mr. Sugden 
 does not admit this, but thinks the prior had an interest in 
 the land. But if there were such an interest in the prior, it 
 would hardly serve to simplify matters. It seems unavoid- 
 able to say that if the case is really the running of covenants, 
 it does gainsay the idea of the necessity for a conveyance — 
 unless it could be said that, like the grant of a rent, it was 
 the grant of the service together with a covenant that the 
 service should be performed. This is of course untenable, 
 however. 
 
 But the most important question raised by Pakenham's 
 Case is the necessity for privity of estate in the parties to 
 whom covenants are to run. To be sure, there was privity 
 in Pakenham's Case ; but if assigns need not be named, and 
 if there need not be any conveyance of distinct property, and 
 if, as some of the judges thought, the covenant is annexed to 
 the land as a part of it, why should not the covenant run to 
 
THE STATUTE OF 32 HENEY VIII. 69 
 
 any possessor in recognized possession of the land, irre- 
 spective of his method of procuring it. 
 
 It has been shown in the third chapter why it seems likely 
 that covenant ran only to those in privity of estate. Privity 
 of estate refers to those who were legal and rightful succes- 
 sors to the estate of the parties to the covenant. Indeed it 
 probably means successors to land granted by one of the cove- 
 nanting parties from a parcel held by the other; for in the 
 time of implied warranty tenure always made a privity of 
 estate between every holder of the parcel and every holder 
 of the rest of the land, subinfeudation not being destroyed. 
 As this was the law of warranty^ this would be expected in 
 the law of covenants. But if this is the law of covenants 
 some of the judges in Pakenham's Case certainly had in 
 mind something else. They may not all have thought that 
 it was the ordinary covenant ; one thought that it would not 
 run at all. But the most satisfactory disposition of the case 
 seems to be to regard it as an attempt to make a local custom, 
 enforceable as a right to be acquired by prescription, have 
 the effect of a covenant and as such run with the land. The 
 case, then, is of little service to the law of covenants, beyond 
 revealing the acceptance of the notion that covenants can 
 run with land.^ 
 
 Almost as much trouble has been raised by Home's Case, 
 T. B. 2 H. IV, 6. The action was by an heir against a 
 prior's successor for not performing divine services in the 
 ancestor's chapel. The plaintiff had evidently tried to count 
 both as heir and as holder of the land. If the plaintiff sued 
 as heir the case would occasion no difficulty; for it would 
 have been merely enforcing a personal covenant to the an- 
 cestor.^ But the court seemed to halt between that and the 
 
 1 For discussion of Pakenham's Case see Co. Lit., 385a; Smith's 
 Leading Cases, Note to Spencer's Case, 8th edition; Sugden on 
 Vendors and Purchases, 14th ed., p. 586; Rawle on Covenants for 
 Title, 5th ed., p. 295, note; Holmes Com. Law, p. 395. 
 
 2 As a personal covenant it is rather surprising that the plaintiff 
 
70 THE STATUTE OP 32 HBISTET VIII. 
 
 notion that he sued as landholder ; and while it was proved 
 that he was not holder of the land as assignee proper bnt in 
 his wife's right, yet the court seemed to think that he should 
 have his action because he could get as much good out of the 
 singing in another's chapel as in his own; though this is 
 hardly a good reason. 
 
 As there appears no grant of land in this case, the recogni- 
 tion of the plaintiff's right as landowner could only be on 
 the principle of Pakenham's Case ; and again we get nothing 
 from the case but the mere fact that covenants may run with 
 land, for the court seems to have thought that the plaintiff 
 could sue either as heir or as landholder. H. C. L., 399. Mr. 
 Sugden, however, says that the case decides that privity is. 
 necessary, and thinks this is confirmed in Y. B. 1 H. IV, 1. 
 — Sug. V. & P., 14th ed., p. 588. 
 
 Considering, then, that nothing has so far been discovered 
 to controvert conclusively the soundness of the propositions 
 tentatively expressed at the beginning of this chapter and 
 embraced in the definition in Chapter I, we are now prepared 
 to examine the statute of 32 Henry VIII, Chapter 34, whick 
 may be called for convenience the Statute of Leases, to learn 
 what effect it had upon the Common Law, and to make what 
 inferences are possible from it as to the law before it was 
 enacted. 
 
 could sue as heir at this time, for the executor had already been 
 developed. In Y. B. 48 E. Ill, 2, Percy says that not even the exec- 
 utor could be sued on a covenant. This must have been among the 
 last cases of such general right to heirs. In 32 H. VI, 32, Littleton 
 says the heir may be sued in covenant on a lease for ouster if he 
 have been mentioned and have effects; but if it is to build a house 
 [a personal covenant, it would seem] then the action of covenant 
 must be against the executor. 
 
CHAPTEE V. 
 
 THE STATUTE OE 32 HESTEY VIII^ CHAPTEE 34, AND ITS 
 
 EFFECTS. 
 
 THE STATUTE.— Where before this time divers, as well 
 temporal as ecclesiastical and religious persons, have made 
 sundry leases, demises and grants to divers other persons, 
 of sundry manors, lordships, ferms, meases, lands, tene- 
 ments, meadov?s, pastures or other hereditaments, for term 
 of life or lives, or for term of years, by writing under their 
 seal or seals, containing certain conditions, covenants and 
 agreements to be performed, as well on the part and be- 
 half of the said lessees and grantees, their executors and as- 
 signs, as on the behalf of the said lessors and grantors, their 
 heirs and successors; (2) and forasmuch as by the Common 
 Law of this realm, no stranger to any covenant, action or 
 condition, shall take any advantage or benefit of the same, 
 by any means or ways in the law, but only such as be par- 
 ties or privies thereunto, by the reason whereof, as well all 
 grantees of reversions, as also all grantees and patentees of 
 the King our sovereign lord, of sundry manors, lordships, 
 granges, ferms, meases, lands, tenements, meadows, pas- 
 tures, or other hereditaments late belonging to monasteries, 
 and other religious and ecclesiastical houses dissolved, sup- 
 pressed, renounced, relinquished, forfeited, given up, or by 
 other means come to the hands and possession of the King's 
 majesty since the fourth day of February, the seven and 
 twentieth year of his most noble reign, be excluded to have 
 any entry or action against the said lessees and grantees, 
 their executors or assigns, which the lessors before that time 
 might by the law have had against the same lessees for the 
 
 71 
 
fr2 THE STATUTE OF 32 HENET VIII^ 
 
 breach of any condition, covenant or agreement comprised 
 in the indentures of their said leases, demises and grants; 
 (3) be it therefore enacted by the King, our sovereign lord, 
 the lords spiritual and temporal and the commons, in this 
 present parliament assembled, and by authority of the same, 
 That as well all and every person and persons, and bodies pol- 
 itic, their heirs, successors and assigns, which have or shall 
 have any gift or grant of our said sovereign lord by his letters 
 patents of any lordships, manors, lands, tenements, rents, 
 parsonages, tithes, portions, or any other hereditaments, or 
 of any reversion or reversions of the same, which did belong 
 or appertain to any of the said monasteries, and other re- 
 ligious and ecclesiastical houses, dissolved, suppressed, re- 
 linquished, forfeited, or by any other means come to the 
 King's hands since the said fourth day of February, the seven 
 and twentieth year of his most noble reign, or which at any 
 time heretofore did belong or appertain to any other person 
 or persons, and after came to the hands of our said sover- 
 eign lord, (4) as also all other persons being grantees or 
 assignees to or by our said sovereign lord, the King, or to 
 or by any other person or persons than the King's highness, 
 and the heirs, executors, successors and assigns of every 
 of them, (5) shall and m.ay have and enjoy like ad- 
 Vantages against the lessees, their executors, administrators 
 and assigns, by entry for non-payment of the rent, or for 
 doing of waste or other forfeiture; (6) and also shall and 
 may have and enjoy all and every such like, and the same 
 advantage, benefit and remedies by action only, for not per- 
 forming of other conditions, covenants or agreements con- 
 tained and expressed in the indentures of their said leases, 
 demises or grants, against all and every the said lessees and 
 farmers and grantees, their executors, administrators and 
 assigns, as the said lessors or grantors themselves, or their 
 heirs or successors, ought, should, or might have had and 
 enjoyed at any time or times, (7) in like manner and form 
 
CHAPTEE 34, AND ITS EFFECTS. 73 
 
 as if the reversion of such lands, tenements or heredita- 
 ments had not come to the hands of our said sovereign lord, 
 or as our said sovereign lord, his heirs and successors, should 
 or might have had and enjoyed in certain cases, by virtue 
 of the act made at the first session of this present parlia- 
 ment, if no such grant by letters patents had been made by 
 his highness. 
 
 II. Moreover be it enacted by authority aforesaid, That 
 all farmers, lessees and grantees of lordships, manors, lands, 
 tenements, rents, parsonages, tithes, portions, or any other 
 hereditaments for term of years, life or lives, their executors, 
 administrators and assigns, shall and may have like action, 
 advantage and remedy against all and every person and per- 
 sons and bodies politic, their heirs, successors and assigns, 
 vs'hich have or shall have any gift or grant of the King, our 
 sovereign lord, or of any other person or persons, of the 
 reversion of the same manors, lands, tenements, and other 
 hereditaments so letten, or any parcel thereof, for any con- 
 dition, covenant or agreement contained or expressed in 
 the indentures of their lease and leases, as the same lessees, 
 ■or any of them might and should have had against the said 
 lessors and grantors, their heirs and successors; (2) all ben- 
 efits and advantages of recoveries in value by reason of any 
 warranty in deed or in law by voucher or otherwise only 
 excepted. 
 
 THE LAW IlSr THE SEVERAL STATES EELATIVE TO THE STATUTE 
 OF 32 HENRY VIII, OH. 34. 
 
 Throughout the United States and territories the subject 
 matter of the Statute of 32 H. VIII, c. 34, has been handled 
 in various ways. In a majority of jurisdictions, the statute 
 has been in effect re-enacted. While the wording is al- 
 ways different from the original statute, the same end has 
 probably been attained, though several of the statutes have 
 been fuller, enacting some of the constructions put upon the 
 
74 THE LAW IN" THE SEVEEAL STATES EELATIVE 
 
 original statute. Nearly all the states whicli have attempted 
 to codify the Common Law are included in this number. 
 
 Other jurisdictions, however, have merely generally en- 
 acted that the English Common and Statute Law down to a 
 certain time shall be considered part of the law of those jur- 
 isdictions, so far as not in conflict with particular enact- 
 ments; and these, of course, may be taken as enacting the 
 English Statute in term. 
 
 Still other jurisdictions have made no enactment on the 
 subject, though early decisions have indicated that the Eng- 
 lish Statutes have been generally accepted along with the 
 Common Law. While several others have given no expres- 
 sion, judicial or otherwise, of a general acceptance, but have 
 enforced this particular statute without comment; and this 
 will probably be the case with others where no decision has. 
 so far appeared. 
 
 In one state, Ohio, it has been held that the Statute of 32 
 H. VIII is not in force at all, and hence some misconception 
 of the Common Law has followed. 
 
 The following list of code and statute references and de- 
 cisions in the absence of statutes has been inserted for con- 
 venience in ascertaining the law in the several states. It 
 has not been attempted to give always the last edition of stat- 
 utes, as it is not a subject that would be ordinarily changed. 
 In all cases the year of the edition is indicated, however, and 
 it is generally the latest edition : 
 Alabama. — The English Statute seems to have been accepted. 
 
 Merchants Ins. Co. v. Mazange, 22 Ala. 168. 
 Arkansas. — The Common and Statute Law generally re-en- 
 acted. See K. S. 1894, §600. 
 California. — Statute re-enacted. Civil Code ed. 1880^ 
 
 §§1460-1466. 
 Colorado. — English Law accepted. Cf. Hayes v. N. Y. Gold 
 
 Mining Co., 2 Col. 273. 
 Connecticut. — No statutory enactment. 
 
TO THE STATUTE OF 32 HEITKY VIII^ CH. 34. 75 
 
 Delaware.— Re-enacted. E. C. 1893, c. 120, §1647. 
 
 Dakota.— Ee-enacted broadly. Code 1877, §§817-826. 
 
 Florida. — No reference to statute. 
 
 Georgia. — ISTo statutory reference. 
 
 Idaho.— Ee-enacted. E. S. 1887, §§2876-7. 
 
 'Illinois. — Ee-enacted. St. 1896, c. 80, §§14-15. 
 
 Indiana.— Ee-enacted. E. S. 1896, §5218. 
 
 Iowa. — Eng. Law apparently accepted. CoUamer v. Kelley, 
 12 la. 319. 
 
 Kansas. — G-eneral re-enactment of Common Law. E. S. 
 1897, p. 99. 
 
 Kentucky. — ISTo statutory enactment, but all statutes before 
 Jac. 1 ar6- accepted. See Eay v. Sweeney, 14 Bush. 1. 
 
 Louisiana. — ISTo statutory enactment. 
 
 Maine. — No statutory enactment. 
 
 Maryland. — Good by acceptance. Cf. Alex. Brit. Stats, in 
 Force in Md., p. 335. 
 
 Massachusetts. — No statutory enactment, but apparently ac- 
 cepted. Morse v. Aldrich, 19 Pick. 449. 
 
 Michigan. — No statutory enactment. Apparently accepted. 
 Lee V. Payne, 4 Mich. 106. 
 
 Minnesota. — English Law accepted. Cf . Leppla v. Mackey, 
 31 Minn. 75. 
 
 Mississippi.— Ee-enacted. See Code 1892, §§ 2539, 2540. 
 
 Missouri. — General enactment of Common Law and Stat- 
 utes before 4 Jac. I. See E. S. 1889, §6561. 
 
 Montana. — Ee-enacted. Civil Code, §§1274-5. In Montana 
 covenants in grants, benefits and burdens run by Civ. 
 Code, §1983, et seq. 
 
 Nebraska. — No statutory enactment. 
 
 Nevada. — In force by construction of Act. Oct. 30, 1861, 
 adopting the Common Law, replaced by Gen. St. 1885,, 
 §3021. See Evans v. Cook, 11 Nev. 69 ; Clark v. Clark, 
 17 Nev. 124. 
 
76 THE LAW IM" THE SEVEEAL STATES EELATIVE 
 
 New Hampshire. — No statutory enactment, but apparently 
 accepted. Murphy v. Minot, 4 N. H. 251. 
 
 New Jersey.— Ke-enacted. Gen. Stat. 1896, p. 880, 
 §§135-6. 
 
 New Mexico. — No statutory enactment. 
 
 New York.— Ee-enacted. 1 E. S. 747, §§23, 24. Vol. 2, 
 9th ed. by Bks. & Bro., p. 1820. 
 
 North Carolina.— Ee-enacted. Code 1893, §§1331-2, 1765. 
 
 North Dakota.— Ee-enacted. E. C. 1895, §3367. 
 
 Ohio. — No statutory reference; apparently the statute is 
 not in force.-* 
 
 Oklahoma.— Ee-enacted. St. 1893, §3740. 
 
 Oregon. — No statutory enactment. 
 
 Pennsylvania. — Ee-enacted as to recovery of possession Feb. 
 20, 1867, P. L. 30, §1. General Common Law and 
 Stat, generally enacted Jan. 28, 1777 ; see Eep. & Lewis 
 Dig. 106, 1— Cf. Pisher v. Lewis, 1 Clark 428. 
 
 Ehode Island. — Ee-enacted loosely; see G. S. 1896, p. 661; 
 and Eng. Stat, before Independence taken as part of 
 Common Law, id. p. 1108. 
 
 South Carolina. — Not included in Eng. Statutes Ee-enacted 
 in 1712 (see Grimke S. C. Public Laws) ; and no statu- 
 tory reference. 
 
 South Dakota.- — See Dakota. 
 
 1 In Masury v. South worth, 9 Oh. St. 340, the court said: "It has 
 been decided by this court that the statute of 32 H. VIII, c. 34, is 
 not in force in this state, and that an assignee of the reversion can 
 not maintain an action upon the covenants in the lease. But if the 
 covenant be assignable in equity, so that an action might have been 
 maintained in the name of the assignor, or relief obtained by a suit 
 in equity, our code of civil procedure operates upon the remedy, 
 even more extensively than the Stat, of 32 H. VIII, c. 34. For 
 whether the covenant be collateral or inhere in the land, if it be 
 assigned, the assignee not only may, but, as the party beneficially 
 interested, must sue in his own name." But compare Newburg 
 Petroleum Co. v. Weare, 44 Oh. St. 604, where this decision seems ta 
 iave been overlooked. 
 
TO THE STATUTE OF 32 HENEY VIII, CH. 34. 7T 
 
 Tennessee. — Common Law and English Statutes enacted 
 generally in Laws JSTor. Car. and endorsed in Constitu- 
 tion of Tenn. 1796, Art. 10, §2. See Scott's Laws of 
 Tenn. 1715-1820, vol. 1, pp. 226, 535. 
 Texas. — Common Law generally enacted. See Sayle's Tex. 
 
 Civ. Stats. Art. 3258. 
 LTtah. — ISTo statutory enactment. 
 
 Vermont. — Common Law adopted generally ; see Stat. ISQ-i, 
 §898; and see Giddings v. Smith, 15 Vt. 344, that this 
 probably includes early English Statutes. 
 Virginia.— Ee-enacted. See Code 1887, §§2781, 2782. 
 Washington. — JSTo statutory enactment. 
 West Virginia.— Ee-enacted. Code 1891, c. 93, §§1-2. 
 Wisconsin.— Ee-enacted ; see Stats. 1889, §§2194, 2195. 
 Wyoming. — Common Law and Statutes adopted; see Code 
 1887, §498. 
 At the time of enactment of this statute of 32 Henry VIII, 
 c. 34, many lands belonging to the church had come into the 
 hands of the King by operation of the statutes of mortmain, 
 after all evasions invented by the clergy had been of no avail. 
 As this property was not ancient desmesne, the particular 
 crown property, but such as the King could grant out again, 
 much of it had been granted over to patentees and other par- 
 ties whom the 1st section of the Statute of Leases recounts. 
 Much of this land, however, was subject to leases when it fell 
 into the hands of the King, and coming as it did by for- 
 feiture, the King lost many of the usual incidents of leases 
 which so far help to protect the property. He could not enter 
 upon failure of rent or upon waste ; for these were privileges 
 which a grantor only or his heirs could exercise. He could 
 not claim conditions or covenants in the lease, for these all 
 required a privity or personal succession to be enforced. All 
 these, then, were great hindrances to the grantees of the 
 King in their full enjoyment of the property granted, and 
 gave rise to the statute which we are considering. 
 
78 THE LAW IjN" the SEVEEAL STATES EELATn'E 
 
 The statute, then, gave a right to all executors, heirs or 
 assigns of the King to enter for failure of rent or for waste. 
 And it gave to all such the same rights on all covenants and 
 conditions which the original lessors might have had. 
 
 It is especially to be noted that the statute did not cover 
 covenants in anything but leases, though it is probable that 
 many of the lands so regranted must have been benefited by 
 covenants running at that time with properties owned in fee. 
 Whether it was only because loss of such covenants was 
 not presented to the legislators that fee properties were not 
 included we cannot tell. It would seem strong to say that it 
 is evidence that other covenants were regarded as incor- 
 poreal rights and for that reason ran with the bound and 
 benefited land into whose-so-ever hands they might come. We 
 have no evidence that the law treated covenants by the lessee 
 in leases in any way differently from covenants by the grantee 
 of fees at any time ; so if the 'statute is evidence of anything, 
 the requirement of privity in leases shows that privity was 
 always necessary to take advantage of covenants. And as 
 nobody claims that the covenant of a lessee for years to repair 
 can be called an easement to the reversioner, it must be 
 proved that the law contemplated a difference between that 
 covenant and such a covenant by a fee owner as to keep clear 
 a drain, or it is likely that privity was always necessary. 
 
 ISTow the statute gives to these grantees all the rights 
 which the original lessors had. The lessors had all rights 
 against the lessees and their heirs and assigns when men- 
 tioned. So the grantees get the right to sue without being 
 mentioned in the original lease, to claim all the benefits and 
 to enforce the burdens where successors of the lessee were 
 mentioned. Moreover, as the statute mentions all covenants, 
 it should have given rights however nearly the covenants con- 
 cerned the land ; though how far this last was carried out will 
 appear later in the consideration of Spencer's Case. 
 
 Then the statute, after remedying the evil caused by lack 
 
TO THE STATUTE OF 32 HENEY VIII^ OH. 34. Y9 
 
 of privity between the lessor and the King, does not confine 
 these privileges to grantees of the King, but adds that they 
 shall pass to all assignees of reversion. These assignees, 
 being of the parties, however, did not lack privity and so far 
 as they were mentioned in the leases as beneficiaries got noth- 
 ing more by the statute. Indeed, Mr. Sugden says that as 
 far as privity existed the statute was merely declaratory, 
 Sugden, V. & P., 14 ed., p. 582. To a certain extent, how- 
 ever, it was effective in that it gives to all assigns the rights 
 of all covenants, and that whether they were mentioned or 
 not. 
 
 ITow to note what was done on the lessee's side by the 
 statute. Mr. Sugden says, that the legislators added the 
 second clause merely to avoid seeming to give everything to 
 the lords and nothing to the tenants. The one chief benefit 
 they could have received from the reversioners was the bene- 
 fit of warranty, but that the statute expressly excepted, 
 though if Bracton's notion was true that warranty bound a 
 lord by escheat they would probably have had that other- 
 "wise. The statute enacts that the lessees or their assigns might 
 have the same remedies against these new grantees which the 
 lessees might have had against the original lessors. And, 
 whatever Mr. Sugden meant, this was a new right ; for it dis- 
 pensed with the requirement of privity, it dispensed with 
 the requirement of mention, and it dispensed with the re- 
 quirement that the covenant should closely concern the land. 
 But this is all that the statute granted to assignees of lessees. 
 
 It is readily noted, then, that the statute is directed chiefiy- 
 against the absence of privity, and that it did not assume that 
 it was before impossible for either benefits or burdens to 
 run with the land. On the contrary it is especially assumed 
 that they could run, for it will be noticed that the statute says 
 nothing about giving rights to the covenantee against as- 
 signees of the covenantor. It gives assignees of the cove- 
 nantee in reversion rights which the original covenantee had ; 
 
80 THE LAW IN THE SEVERAL STATES EELATIVE 
 
 and it gives assignees of the covenantee in lease those rights 
 against assignees of the covenantor which the original cove- 
 nantee had ; and surely it will not be claimed by any one that 
 this verbiage was all idle and that the covenantee had no 
 right to enforce the burden of the covenant beyond the cove- 
 nantor himself. But as the statute says nothing to make 
 burdens of covenants run, they must run because of the Com- 
 mon Law alone, and it is clear that the notion of the statute 
 assuming that the burden of a covenant will not run is utterly 
 without foundation. Therefore the much exaggerated ef- 
 fect of the Statute of 32 Henry VIII, c. 34, is reduced to 
 this alone: It dispenses with any requirement of privity 
 for an action of covenant on the agreements in leases ; it dis- 
 penses with the requirement of mentioning the executors, 
 heirs, or assigns for the privileges of action except in the case 
 of the burden of the lessee's covenant, an exception which 
 has been wisely overlooked; and it dispenses with the re- 
 quirement that the covenant should closely concern the land. 
 The last two points we shall find that Lord Coke mixed up ; 
 so that the effect is probably reduced to the dispensing with 
 privity in the reversion alone. 
 
 If this conclusion is sound we have but just secured a 
 sound basis for work. Three hundred years of decisions have 
 come down to us based on a misconception or a confused con- 
 ception of the Common Law, and they present the discour- 
 aging labor of being sifted out to see how far it is possible 
 to return toward the simple state of the law from which they 
 rose. The chief blessing of the Common Law presents at 
 once its chief drawback. That pliability which enables it to 
 yield to the requirements of civilization we find has bent it 
 so far away from the truth that it will take a Court of Titans 
 to pull it back. The cumulative mass of decisions ever di- 
 rected to granting the plaintiff the benefits the judges hon- 
 estly believed to be possessed, has been shifted from one 
 ground to another, now giving full rights to the assignee, now 
 
TO THE STATUTE OF 32 HENBY VIII;, CH. 34. 81' 
 
 denying them after death and administration of the cove- 
 nantor — until finally the point has been reached in England 
 and in some of our states where a plaintiff can obtain only 
 a limited equitable relief and in many cases is without help 
 entirely. 
 
OHAPTEE VI. 
 
 COVEN"A]SrTS IN LEASES. 
 
 At the expense of breaking somewhat into the line of rea- 
 soning it seems best to consider here the operation of cove- 
 nants in leases since the statute in England, and the result- 
 ing law under the same or later local statutes in America. 
 The English statute was said to dispense with the necessity of 
 privity of estate between succeeding holders of the reversion. 
 That statute was broad enough to cover not only grantees of 
 forfeited lands in the hands of the King or lords, but also 
 all grantees or assigns of lands, which would include as- 
 signees or disseisors who might be in possession of the lands 
 of the lessor. But there is much doubt whether the average 
 American statute is so broad. As there is no occasion to con- 
 sider forfeited lands, in the United States, the average statute 
 re-enacting the British statute provides for assignees of the 
 lessor and assignees of the lessee, and as these can in their 
 nature be only in privity of estate, the statute cannot be said 
 to supplant privity at all. This is true, too, of the normal 
 case of transfer of reversions between lessor and assignee in 
 England, so that in the majority of cases, the statute seems 
 unnecessary. But the later judges fail to accept the fact that 
 in these cases the covenants ran by the Common Law. Even 
 Sergeant Williams says "the better opinion seems to be that 
 the assignee of the reversion could not bring an action of cove- 
 nant at Common Law, but it is given by the Statute of 32 H. 
 VIII, c. 34," Thursby v. Plant, I Wm. Saund. 240, N. 3, 
 though his citations for this are all decisions made one or 
 two centuries after the statute, — Barker v. Damon, 3 Mod. 
 
 88 
 
COVENANTS IN LEASES. 83 
 
 .337; Thrale v. Cornwall, I Wils. 165; Webb v. Kussell, 3 
 T. E. 401. 
 
 It is unnecessary to rehearse here the historical proofs 
 "why such a position is unsound; but as the lawyers thought 
 the right was given by the statute it is important to see how 
 they decided that the statute accomplished it. Having the 
 operation of the statute in assignments of the land forfeited 
 to the King, and realizing that there was no succession by act 
 of the parties in those cases, the natural suggestion would be 
 that the statute operated always by transferring privity of 
 estate. But as privity of estate in the sense of voluntary 
 succession occurred every day long before the statute, it 
 "would not explain matters to say that the statute operated 
 Iby transferring privity of estate; so the idea arose that 
 the statute operated to transfer privity of contract. Mean- 
 Tvhile the correct idea of what was privity of estate seems to 
 have been confused, and it became an argued question 
 w^hether the statute operated to transfer the one or the other. 
 The real meaning of the idea that the statute operated by 
 transferring privity of estate probably was that the statute 
 attached the covenant to the property, and then the assign- 
 jnent carried both covenant and property to an assignee. 
 Thus in Barker v. Damon, 3 Mod. 337, the court admitted 
 that the assignee of a reversion could bring covenant at 
 Common Law for matters on the land, but thought that the 
 statute attached to the land other covenants and that the as- 
 signee's rights to sue on these lay in privity of estate. 
 
 But Sergeant Williams' principal case of Thursby v. Plant 
 ield that the statute transferred privity of contract, and Ser- 
 geant Williams came to the same conclusion. This did not 
 satisfy a subsequent editor of that case, however; for it is 
 pointed out, I Wm. Saund., p. 241, note, that if the statute 
 transferred to the assignee the privity of contract, how could 
 it be that the original lessor could still sue ? — a question of 
 course unanswerable, as two people cannot be the same con- 
 
84 COVENAISTTS IN LEASES. 
 
 tracting party at the same time, even though the statute 
 could change parties. As the position had been refused, 
 moreover, that the statute operated by transferring privity 
 of estate, the only position left is to say that the statute 
 operates only to dispense with the necessity of privity of 
 contract. But Sergeant Williams had already admitted that 
 privity of contract was not necessary before the statute, for 
 he said in the same note that covenants probably ran witk 
 the lease side at Common Law, though not with the reversion. 
 If, then, covenants ran with the lease at Common Law, as 
 there seems no doubt from the year book citations above, 
 the truth must lie in the idea that the statute attaches the 
 covenant to the land so that it runs to any one within the 
 terms of the statute, or the statute is in the ordinary case of 
 assignment merely declaratory. 
 
 The practical question in the whole matter is whether an 
 assignee's action on the covenant is local or transitory. The 
 sub-commentator to Williams concludes that as the action is 
 given by the statute it need not be local, I Wm. Saund., p. 
 241, note; and see Thrale v. Cornwall, I Wils. 165 ; Webb v. 
 Eussell, 3 T. K. 393 ; Isherwood v. Oldenow, 3 M. & Sel. 
 396. But however sound that may be, the notion that has 
 generally gotten hold is that the action is based on privity of 
 estate, and is probably local in most jurisdictions ; and so in 
 America generally in states where covenants run with a fee. 
 1 Smith's Leading Cases, 8th ed., p. 235 ; Sugden, Vend, and 
 Pur., 14th ed., p. 583 ; Barker v. Damon, 3 Mod. 377 ; Walk- 
 er's Case, 3 Co. 22b, (semble) ; Salisbury v. Shirley, 66 Cal. 
 223 ; Bonetti v. Treat, 91 Cal. 223 ; Peers v. Consol. Coal 
 Co., 166 111. 361; Hintz v. Thomas, 7 Md. 346; Donelson 
 V. Polk, 64 Md. 501; Patty v. Bogle, 59 Miss. 491; St. 
 Louis Pub. School v. Boatman Ins. Co., 5 Mo. App. 91; 
 Guinzburg v. Claude, 28 Mo. App. 258; Childs v. Clark, 
 3 Barb., Ch. 52 ; but compare Marshall v. Lippman, 16 Hun. 
 110; Nesbit v. ISTesbit, Taylor (ISTor. Car.) 82 (semble); 
 
COVEITANTS IN LEASES. 85 
 
 Morgan v. Yard, 12 W. N. C. 449 ; Drake v. Lacoe, 157 Pa. 
 17 (semble) ; Bowdre v. Hampton, 6 Kich. 208, 223. In 
 Worley v. Hineman, 6 Ind. App. 240, 248, and Univ. of Vt. 
 V. Joslyn, 21 Vt. 52, the action is made transitory by statute. 
 
 In Wheeler v. Schad, 7 Nev. 204, it appears that an action 
 on a covenant in a grant need not be local. 
 
 In Isherwood v. Oldenow, Lord Ellenborough suggested 
 that however the question might be argued in the matter of 
 covenants in grants, a lease, even from remote times, v^as only 
 a contract of which an entry was the consummation; and 
 locality could have nothing to do with any rights arising on 
 a purely contractual relation- This would seem evidently the 
 loot of the matter, except that there is no ground even for 
 a distinction between leases and grants. We have seen that 
 warranty was really nothing but a contract, and while under 
 ■the feudal law it became an incident to the holding of every 
 estate, the express warranty in terms extended or limited 
 the running at the will of the parties. Privity of estate 
 served merely to indicate who were meant to be included 
 tinder the designation "heirs" or "assigns" to take advantage 
 of the contract. True enough, to get the real advantage of the 
 old warranty in the judgment that the voucher have other 
 lands, the vouching to warranty must have had a local nature, 
 as only a local court could carry out a judgment to give 
 the voucher other lands ; but so far as giving damages are con- 
 cerned, that the action be brought at the place where the land 
 lies is as unnecessary as in case of any other action on a 
 contract. Further evidence that the assigTiee's obligation is 
 <iistinctly contractual may be dediiced from the holding that 
 where the lease contains an express covenant the assignee 
 even cannot be sued on an implied contract for use and occu- 
 pation. Glover v. Wilson, 2 Barb. 264 ; Marney v. Byrd, 11 
 Hump. 95. 
 
 It is perhaps unnecessary to point out that the weight of 
 American decisions that action on the covenant is local should 
 
86 COVENANTS Iisr LEASES. 
 
 constitute no decisive reason for continuing such law, as the 
 real question is the proper forum for an action of contract, 
 and not the locality for any peculiar real proceedings. 
 
 One difficulty arises with the idea that actions depend en- 
 tirely on the contract assumed and that assignees sue by vir- 
 tue of being specified and not by their owning the land. So 
 long as the assign is intended to take, the action may not be 
 local; but how about involuntary assignees — purchasers at 
 sale under mortgage, tax sales, and executions at law ? That 
 such purchasers are in by privity of estate there is no doubt, 
 for the law professes to sell the debtor's title and right and 
 no other. But are they assigns within the meaning of the 
 original covenantor when he agreed to be liable to assigns ? 
 Did not assigns mean voluntary assigns ? We know that the 
 law is very particular in other branches to restrain the bene- 
 fits or consequences of conditions where they were not volun- 
 tarily granted. Witness the law of restraints and forfeitures, 
 upon alienation of property. But there is universal accept- 
 ance of the notion that such vendees have all the rights of 
 the contract. Hayes v. IST. Y. Gold Mining Co., 2 Col. 273 ■ 
 White V. Whitney, 3 Met. (Mass.), 81 (by statute) ; Ely v.. 
 Hergesell, 46 Mich. 325 ; Kearney v. Post, 1 Sanford, 105 ; 
 Andrews v. Walcott, 16 Barb. 21 ; Mygatt v. Coe, 142 'N. Y. 
 T8 ; Simons v. Vanlngen, 86 Pa. 330 ; Williams v. Baugh, 
 9 Lea 455 ; Re Huddell, 16 Fed. Rep. 373 ; several of the 
 cases being covenants for title in fees, though the point is- 
 the same. 
 
 So far as leases are concerned it may be said that the word- 
 ing of the statute is enough to cover all assigns, and so they 
 may be included in the rights ; but it is hardly necessary to- 
 remind the reader that the notion of an involuntary assignee 
 was entirely unknown to the framers of the Statute of 32 
 H. VIII, as mortgage or execution sales were creatures of 
 the later law, and the remedies by early statutes merely gave 
 possession of the lands to hold for the profits until debts were 
 paid. 
 
COVENANTS IN LEASES. 87 
 
 It is surprising that the notion that actions rest upon priv- 
 ity of estate should have gained such hold in the light of the 
 parallel cases of leases not under seal. It is well settled that 
 the statute does not cover such leases. Glover v. Cope, 3 
 Lev. 326 ; Selwyn's Nisi Prius., Gov. V., p. 441, 13th ed. 
 Parke B. in Buckworth v. Simpson, 1 G. M. & E. 834 
 assumption of counsel in Bridges v. Lewis, 3 Q. B. 603 
 Standen v. Christmas, 10 Q. B. 135 ; Bickford v. Parsons, 
 5 C. B. 920 ; I Smith's Leading Gases, 9th ed., note to Spen- 
 cer's Case ; Sheets v. Selden, I Wall. 177 ; Kennedy v. Owen, 
 136 Mass. 199. 
 
 Eights and obligations contained in these leases therefore 
 can be enforced by assignees only as in assignments of any 
 other chose in action — by suit in the name of the original 
 parties. Bickford v. Parsons (supra) ; and see I Smith's 
 Lead. Gas., 9th ed., p. 181. For enforcing that right there 
 has never been any suggestion that locality must be observed. 
 
 The parallel law of leases not under seal has been extended 
 in a very interesting way, involving some quite difficult 
 questions. While it was clear enough that personal contracts 
 or obligations could be enforced only in the name of the 
 original parties, it was realized that the main rights of land- 
 lords were in no way dependent upon such recourses. The 
 chief claim upon the tenant — the claim for rent — and the 
 right to distrain for it, were not personal claims ; and dis- 
 traint would always enable the reversioner to get his rent, 
 subject only to the necessity of a suit in replevin if the 
 tenant denied his right. Moreover, by the Statute 11 Geo. 
 II, c. 19, sec. 14, attornment by the tenant was done away 
 with; and after that an action of debt was admitted to lie. 
 Per Lord Denman in Standen v. Cbristmas, 10 Q. B. 136. 
 But when the assignee sought to bring assumpsit for use 
 and occupation a contract was to be implied and further 
 invention became necessary, for the Common Law thoroughly 
 observes the maxim that no contract can be implied where 
 
88 COVEH-ANTS IN LEASES. 
 
 another clearly exists, and in these cases there existed the 
 lease contract between the assignor and the lessee. 
 
 But as the point generally arose on an ordinary lease in 
 "writing from which the seal had been omitted, it was said 
 that the lessor having named his assigns, intended them to 
 have the benefit of the contract and contracted for them as 
 well as for himself. On this ground such an action was al- 
 lowed in the assignee's name. Standen v. Christmas, 10 Q. 
 B. 135; Cf. Elliott v. Johnson, L. E. 2 Q. B. 120. But 
 does not the theory prove too much ? The lessor must contract 
 as agent of a future assignee, and the assigTiee must ratify 
 either when he sues for use and occupation or before that 
 time. That is to say, the conception is a double contract, one 
 between the lessee and the lessor for himself, and another 
 between the lessee and the lessor as agent for an indicated 
 possible assignee. But though such a state of affairs is con- 
 ceivable, it may be asked, if the lessor can be agent to con- 
 tract for use and occupation by the tenant, why can he not 
 contract as agent for those other agreements in the lease, as 
 repairing, etc., which Lord Denman expressly confined to 
 covenants and thought enforceable by those assignees only 
 who are covered by the statute ? It would seem evident, on 
 the whole, that no such agency was intended. 
 
 In certain of the United States which recognize the right 
 of a beneficiary under a contract to sue in his own name at 
 law, the matter might be more easily handled. If the lessor 
 be taken to have covenanted with the lessee to do certain 
 things for the lessor himself as well as for the lessor's assign, 
 it might indeed be argued that though the formal lease con- 
 tinued, the assignee of the lessor might enforce the agreement. 
 Such an application of the doctrine would be novel, how- 
 ever, and it would be probably very limited in its operation, 
 perhaps being confined to the payment of rent or agreements 
 to do certain specific things. As the right of beneficiaries 
 to sue at law on contracts is not recognized in England, such 
 
COVENAH'TS IN" LEASES. 89 
 
 was not the meaning of Lord Denman in Standen v. Christ- 
 mas. 
 
 It is hardly within the province of this essay to discuss 
 how the assignment of the reversion should carry with it the 
 right to sue in the name of the assignor for benefits of con- 
 tracts made with him personally. Such a question belongs 
 rather to the study of the relation between landlord and 
 tenant. 
 
 But though no new contract can be implied between the 
 assignee of the reversion and the lessee while the former 
 contract of occupation between the assignor and the lessee 
 still continues, yet presumptions can be made very naturally 
 at the termination of the prior contract of lease. So where 
 the leases are short, and a new landlord has come in, there 
 is no difficulty in presuming a renewal of the same contract 
 though between different parties. This was done in Buck- 
 worth V. Simpson, 1 C. M. & K. 834. And comparison may 
 be made with Lumby v. Hodgson, 16 East, 99. 
 
 In Cornish v. Stubbs, L. E., 5 C. P. 334, a landlord had 
 leased by parole with right to discontinue on a week's notice. 
 The lease gave the tenant certain licenses. The lessor hav- 
 ing died, the plaintiff, his son, accepted the regular rent. The 
 court held that there was an implied continuance of the 
 former lease with its privileges, one of which was a reason- 
 able time for the tenant to remove his effects. Mr. Justice 
 Willes held that it was a contract right annexed to the land, 
 as the law annexed such rights to tenures at will and for 
 life. This uncertain doctrine was disregarded, however, in 
 Smith V. Eggleston, L. R., 9 C. P. 145, and it was made a 
 question for the jury whether the old lease was affirmed by 
 the new lessor. It is needless to remark the soundness of this 
 last view of the situation. 
 
 But whatever difiiculty may be encountered in the ex- 
 planation of the running of benefits in parole leases, in the 
 carrying of burdens, it is believed no difficulty is encountered. 
 
90 COVENANTS IN LEASES. 
 
 In Mansel v. Norton, 22 Ch. D. 769, one M., possessed of 
 lands in fee, prepared a lease for seven years with covenants 
 to pay for all the tenant's property to be found on the farm 
 at the end of the lease. The lease was never executed, and 
 so the holding was by parole, il. died, willing another term 
 for one thousand years in trust, and subject to the terms 
 willed the farm to the plaintiff for life. The plaintiff en- 
 tered, and at the end of the seven years' term paid the tenant 
 for the property on the land and brought his bill to recover 
 the amount from the estate of M. The court, Sir George 
 Jessel, held that the obligation to pay for the tenant's prop- 
 erty was one running with the land and that the plaintiff as 
 owner of the land was primarily responsible and could not 
 recover. 
 
 This decision, better than any other, brings out the fact 
 that the gist of the matter of the running of agreements is 
 the relation of principal and surety. If the covenant was one 
 intended to run with the land, the land was to be ultimately 
 liable, into whose hands soever it should come. An assignee 
 was expected to take it, benefits and burdens alike. The 
 plaintiff, therefore, having assumed what it was contemplated 
 that he should assume, had no right to recover against the 
 personal representative who took the place of the former 
 owner as mere surety of the carrying out of the agreement. 
 Of course it was immaterial whether the lease was under 
 seal or merely parole.^ 
 
 The principle will come out more clearly in a discussion 
 of parties to actions and their respective rights. So without 
 
 1 In saying that between the parties the land is regarded as ulti- 
 mately liable, it is not to be understood that the covenant binds the 
 land itself like an easement, affecting the possessor, however he 
 come into title. Such an idea of covenants was repudiated in 
 Chapter III. All that is meant here is that parties legally assigning 
 the land among themselves usually consider that the burden of an 
 agreement is to be met by the proceeds or general value of the 
 land; and that the land presumably cost the owner more or less in. 
 consideration of the obligation attached to it. 
 
COVENAM-TS IN LEASES. 91 
 
 stopping to examine how far the courts would have enter- 
 tained a bill by the representative against this devisee for the 
 value of the tenant's property had the devisee refused to pay 
 and the representative paid the tenant, let us proceed at once 
 to consider the parties to actions in the ordinary case of leases 
 under seal. 
 
 For convenience let the parties be taken up in their order 
 with regard to both benefits and burdens. 
 
 So long as the lessor remains in possession of the reversion 
 his rights or liabilities are of little importance, as it is but a 
 matter of contract. But after he has assigned the reversion 
 and his assignee has gained full rights, whether by the stat- 
 ute of 32 H. VIII, or otherwise, it becomes important to 
 know whether the lessor's obligations and rights still con- 
 tinue. His rights must continue at least in name, as the 
 covenant was distinctly with him, I Wm. Saund., Thursby v. 
 Plant, note, p. 241 (but see Stoddard v. Emery, 128 Pa. 
 436, contra, which is not to be sustained) ; but whether the 
 lessor can recover nominal damages or full damages the 
 courts seem not to have decided. If the breach by the lessee 
 occurred during the lessor's ownership of the reversion there 
 would seem no reason why the lessor's damages should not 
 be full, as the assignee can recover for those breaches only 
 which occur after he receives assignment (see the same cita- 
 tion) ; but for breaches after the lessor has assigned, nominal 
 damages should be all he should recover, as full damages 
 would be held in trust for his assignee and the assignee can 
 sue the delinquent for himself and does not need the assignor 
 to sue for him. The lessor's duties, however, must continue 
 full, and he must trust to his right against his assignee to 
 recoup for any outlay to which he is subjected after the 
 assignment. 
 
 While the courts seem to have had little occasion to con- 
 sider the lessor's burdens continuing after he has assigned, 
 they have had much to say about the lessee's burdens continu- 
 
92 COVENANTS IN LEASES. 
 
 ing after he has assigned ; and it is believed that the point is 
 the same. On the other hand the lessee's continuing benefits 
 have met with a noticeable lack of consideration, so that any 
 rights he may have after he has assigned his term may be 
 passed over as similar to those of the lessor after he has 
 assigned the reversion. The assignment of the term would 
 not destroy the original lessee's right to sue for covenants 
 subsequently broken, though it would seem to carry with it 
 to the assignee a complete legal right to sue at law for cove- 
 nants broken during his holding. Then the original lessee 
 would be compelled to hold in trust for his assignees any- 
 thing he might receive on breaches after assignment, while 
 at the same time the assignee would have his action at law, 
 although he would be allowed full satisfaction but once.-' 
 
 If the lessee was not obliged to pay over to the assignee 
 any money thus received, then this would mean that the 
 covenantor's payment to the lessee would be no defence to the 
 assignee's demand. In England this might frequently hap- 
 pen, although with us the records would give the covenantor 
 ample notice of the assignment. In Cronin v. Watkins, 1 
 Tenn. Ch. 119, it was held that a covenantor who has paid 
 the lessee without notice of the assignment is not liable to 
 the assignee, as the registration could give no notice that a 
 merely personal obligation of the lessor had been shifted 
 to the assig-nee. But the suit was in equity, and in the as- 
 signor's name, it being held that the covenant did not run at 
 law without the mentioning of assigns, and it might possibly 
 be held that registration is no notice of the transfer of a 
 covenant which cannot be recognized as transferred at law. 
 
 1 This principle is evident from the decision in Friery etc. Brew- 
 eries V. Singleton [1899], 1 Ch. 86. There a lessee for years had 
 agreed to assign his lease and the prospective assignee had entered 
 and had even paid some of the rents to the lessor. But when the 
 prospective assignee sought, in his own name, to enforce the lessor's 
 covenant in the lease, the court held that this plaintiff was not the 
 person to enforce the covenant, he not being the legal owner of the 
 lease. The lessee himself still had the right. 
 
COVENANTS IN LEASES. 93 
 
 Now, as to the lessee's burdens continuing after assign- 
 ment. While the lessee's right to the possession under a 
 lease for years is merely a contract, so that it is a little more 
 confusing to speak of this right to possession as being pri- 
 marily burdened by the lessee's covenant as the freehold in 
 land may be said to be burdened by the lessor's covenants; 
 yet when a lessee assigns his right he assigns something which 
 can be readily conceived as carrying burdens and benefits, 
 as well as a reversion ; and as the possessor of the lease is the 
 one to be primarily liable, the relation of principal and 
 surety is the same. It will be seen that the decisions fully 
 sustain this position. Thus after the lessee assigns his term, 
 he is of course still liable to the reversioner on the covenants. 
 Bachelour and Gage's Case, Cro. Car. 188 ; Scott v. Lunt, 7 
 Peters 596; Coburn v. Goodall, Y2 Cal. 498; Bonetti v. 
 Treat, 91 Cal. 253 ; Wilson v. Gerhardt, 9 Col. 585 ; Con- 
 solidated Coal Co. V. Peers, 39 111. App. 453 ; same case, 
 59 111. App. 595, 166 111. 361 ; Fletcher v. McFarlane, 12 
 Mass. 431 ; Pfaff v. Golden, 126 Mass. 402 ; Deane v. Cald- 
 well, 127 Mass. 242; Greenleaf v. Allen, 127 Mass. 248; 
 Wineman v. Philips, 93 Mich. 223 ; Patty v. Bogle, 59 Miss. 
 491; Hendrix v. Dickson, 69 Mo. App. 197; Bouscaren v. 
 Brown, 40 Neb. 422; Hunt v. Gardine, 53 N. J. L. 530; 
 Smith V. Harrison, 42 O. St. 180; Kunckle v. Wjniick, 1 
 Dall. 326; Dewey v. Dupuy, 2 W. & S. 553; Eanger v. 
 Bacon, 22 K T. Supp. 551; Almy v. Greene, 13 K. I. 350; 
 Shaw v. Partridge, 17 Vt. 626. Nor is he any less liable 
 because the lessor has accepted rent from the assignee, which 
 he had done in Bachelour and Gage's Case and in several of 
 the American Cases just cited. See also Damb v. Hoffman, 
 3 E. D. Smith 361; Wall v. Hinds, 4 Gray 256; Graveling 
 V. DeHart, 54 N. J. L. 338.^ But if the lessee be required 
 
 1 Of course the lessor can have but one satisfaction of the cove- 
 nant. Whetstone v. McCartney, 32 Mo. App. 430. It is often said 
 that the lessee is not liable after assignment on implied covenants. 
 
94 COVEITANTS IH" LEASES. 
 
 to sustain the full obligation after assigning the term, it is 
 said that there is an implied covenant by the assigns to in- 
 demnify him. Burnett v. Lynch, 5 B. & C. 589 ; Wolver- 
 idge V. Steward, 1 Cr. & M. 644 ; Humble v. Langston, 1 M. 
 & W. 517 ; Moule v. Garrett, L. E., 5 Ex. 132, L. E., 7 Ex. 
 101; Brinkley v. Hamberley, 67 Md. 169. 
 
 The judges have distinctly called this the implied contract 
 of suretyship. Thus Baron Parke said in Humble v. Langs- 
 ton, "The assignee of a lease becomes liable to the lessor for 
 the performance of all the covenants which run with the land, 
 and the lessee is also liable in the nature of a surety as be- 
 tween himself and the assignee for the performance of the 
 same covenants." And Lord Denman in Wolveridge v. 
 Steward thus worded it fully : "The effect of the assignment 
 is, that the lessee becomes a surety to the lessor for the as- 
 signee, who as between himself and the lessor, is the prin- 
 cipal, bound, whilst he is assignee to pay the rent, — and the 
 surety after paying the debt, or discharging the obligation to 
 which he is liable has this remedy over against the prin- 
 cipal."! 
 
 e. g. Charless v. Proebel, 47 Mo. App. 45. It is evident that this is 
 but another way of saying that there is no longer any covenant at 
 all. The covenant Is implied from the fact that the lessee is in 
 possession of the premises, and if there has been a complete assign- 
 ment, there is no longer any reason to imply a contract between the 
 lessor and the former lessee. This is set forth with great clearness 
 in Consumers' Ice Co. v. Bixter, 84 Md. 437. 
 
 What is an implied covenant should not be a matter of doubt. 
 It is drawn from acts, not from writings. Any expression of the 
 parties indicating that a covenant was intended, would seem in 
 nature an express covenant. So Kimpton v. Walker, 9 Vt. 191, that 
 "yielding and paying" makes an implied covenant seems hardly to 
 be sustained. 
 
 1 In Moule v. Garrett, L. R. 7, Ex. 101, in the Exchequer Chamber, 
 Mr. Justice Willes expressed the same principle in broader language, 
 as follows: "I am of the same opinion, on the ground that where 
 fi party is liable at law by immediate privity of contract, which con- 
 tract also confers a benefit, and the obligation of the contract is 
 common to him and to the defendant, but the whole benefit of the 
 
COVENANTS IN LEASES. 95 
 
 The liability of the lessee after the term has been assigned 
 is confined, however, to action of covenant. Thus the action 
 of debt, not being a purely contractual claim, after the 
 lessee has assigned the term and the assignee has once paid 
 rent to the lessor, the lessee is no longer liable to the lessor 
 for the rent in an action of debt. Walker's Case, 3 Co. Kep. 
 24 a. b. ; Marsh v. Brace, Cro. Jac. 334 ; Thursby v. Plant, 
 1 Wm. Saund. 240. 
 
 Coming now to the rights and liabilities of assignees, it 
 should be remembered first of all, both with regard to as- 
 signees of the term and assignees of the reversion, that they 
 are concerned only with those breaches of covenants which 
 •occur during the continuance of their legal proprietary right 
 to the estate. Not being parties to the original covenant, 
 when they have assigned over their holdings such assignees 
 are no more concerned with subsequent breaches than they 
 were with breaches occurring before they received assign- 
 ment. Bailey v. Richardson, 66 Cal. 416; Scheldt v. Betz, 
 4 111. App. 431; Allen v. Wooley, 1 Blkf. 149; Hintz v. 
 Thomas, 1 Md. 346 ; Donaldson v. Polk, 64 Md. 501 ; Mason 
 V. Smith, 131 Mass. 510 ; Lee v. Payne, 4 Mich. 106 ; St. 
 Xouis Pub. Schools v. Boatman Ins. Co., 5 Mo. App. 91 ; 
 Xane v. Sanger, 14 Johns. 89; Glover v. Wilson, 2 Barb. 
 254 ; Childs v. Clark, 3 Barb. Ch. 52 ; Armstrong v. Wheeler, 
 9 Cow. 88 ; Gerzebeck v. Lord, 33 IST. J. L. 240 ; Washn. 
 Gas. Co. V. Johnson, 123 Pa. 576 ; Keith v. Day, 15 Vt. 
 
 contract is taken by the defendant; the former is entitled to he 
 indemnified hy the latter in respect of the performance of the obliga- 
 tion." The notion that the land is the principal obligor was also 
 indorsed in Carley v. Lewis, 24 Ind. 23. 
 
 Where the assignee of the lessee has sublet, however, the sub- 
 lessee is not a principal to the original lessee; there is no privity of 
 contract between them, and he is not liable at law to the lessee who 
 ias paid the rent. See Bonner v. Tottenham etc. Society [1899], 
 1 Q. B. 161. Of course the explanation is that the sublessee is not the 
 holder of the land so far as the original lessee is concerned. The 
 sublessee merely holds possession for the lessee's assignee. 
 
96 COVENANTS IN LEASES. 
 
 660; and see 1 Sm. Lead. Cas., 8th Am. ed., 211. By a 
 statute in Pennsylvania the assignee of a lease subject to a 
 ground rent is made liable for rent due before he accepts 
 assignment, but he is not liable for interest on that sum. 
 McQuesney v. Hiester, 33 Pa. 435. 
 
 But very nice questions may arise as to what constitutes 
 an assignment. Thus where the alleged assignment imposed 
 different covenants or exacted a different rent from the orig- 
 inal lease it has been held, it would seem properly, that there 
 was no assignment, but a mere sub-letting, and the assignee 
 was not liable to the original lessor. CoUemer v. Kelley, 12 
 la. 319; Shumway v. Collins, 6 Gray 227; Dunlap v. Bul- 
 lard, 131 Mass. 161 ; McNeil v. Kendall, 128 Mass. 245 ; 
 Drake v. LaCoe, 157 Pa. 17 ; Martin v. O'Connor, 43 Barb. 
 514. But apparently in Palmer v. Edwards, 1 Doug. 187, 
 note, and in Beardman v. Wilson, L. E., 4 Co. P. 57 ; Smiley 
 V. VanWinkle, 6 Cal. 605 ; Stewart v. Ky., 102 1^. T. 601 ; 
 Craig V. Summers, 47 Minn. 189 ; and St. Joseph Ry. v. St. 
 Louis Ey., 135 Mo. 173, the contrary conclusion was 
 reached, based on the idea stated by Coke that there cannot 
 be a sub-lease unless there is something of a reversion left 
 in the sub-lessor. As a lease for years is in principle a 
 contract, however, it is difficult to see how it can be assigned 
 otherwise than in its completeness ; so that any change in the 
 obligation would be making a new contract. But text writers 
 have indorsed Coke's view. 1 Woodfall, Landlord and Ten- 
 ant, 258 ; Taylor, idem, sec. 16. 
 
 Some question has arisen, too, as to what constitutes an 
 assignment of the reversion. Thus the assignment of the 
 rent for a lease is not considered an assignment of the re- 
 version, and covenants do not run with it. Demarest v. Wil- 
 lard, 8 Cowen 206. This is, of course, thoroughly sound, 
 if the assignor reserved the other rights against the tenant, 
 as waste or anything that would indicate that as lessor he 
 was still interested in the property. The only difficulty that 
 
COVENASTTS IK LEASES. 97 
 
 could arise would be in determining whether a certain in- 
 artificial writing was intended to assign the whole reversion 
 or the rent only. That would be but a matter of interpreta- 
 tion in each case. 
 
 While the assignee is concerned with liabilities only which 
 arose during his holding, yet a curious line of cases is to be 
 found upon the liability of the assignee for breaches which 
 occurred during his holding, but for which he is sued after 
 assigning over his interest in the term. There would seem 
 to be no reason why he should not be liable in an ordinary 
 action at law. As the breach of the contract obligation had 
 given rise to a legal duty to pay money, it would seem im- 
 material that the relation had so changed that he could be 
 subjected no longer to a new liability. It has been shown 
 that the legal obligation was personal; and this particular 
 duty has never been transferred to another. In England 
 the liability is legal, Harley v. King, 2 C, M. and K. 18 ; 
 and a dictum may be found to the same effect in Quacken- 
 boss V. Clarke, 12 Wend. 555, 557 ; but in Maryland it was 
 early held that the liability was one enforceable only in 
 equity, Hintze v. Thomas, 7 Md. 346 ; and this case has 
 since been followed in that state until it has become acknowl- 
 edged law, though its soundness is now questioned even by 
 the Maryland Court itself. Mayhew v. TIardesty, 8 Md. 
 479 ; Lester v. Hardesty, 29 Md. 50 ; Donelson v. Polk, 64 
 Md. 501. 
 
 The origin of the Maryland doctrine is attributed in part 
 to a supposed statement of Baron Alderson, while sitting in 
 equity in Fagg v. Dobie, 3 Y. & C. 96, that the action could 
 not be maintained at law, and in part to the unquestionable 
 right to maintain the suit in equity if the right did not 
 exist at law. City of London v. Richmond, 2 Vern., 421 ;■ 
 Philpot V. Hoare, Ambler, 480; Valliant v. Dodemede, 2 
 Atk. 546. But it is submitted that Baron Alderson did not 
 make so broad a statement, for Fagg v. Dobie involved a verj 
 
yS COVENANTS IN" LEASES. 
 
 different principle. The question there was whether an as- 
 signment over of a term to a beggar would relieve from re- 
 sponsibility on the lease, and Baron Alderson thought that 
 such an assignment, if not fraudulent, would relieve from 
 responsibility, but added that for actions already accrued, 
 equity would relieve. While the implication made by the 
 Maryland Court is not violent, it will be noted that Baron 
 Alderson's statement really amounted to saying that if the 
 right against the action was lost under those circumstances 
 equity would relieve against such injustice.-'^ 
 
 It is not to be expected, however, that any other jurisdic- 
 tion will intelligently follow Maryland in its holding ; so its 
 existence in that state is not of general concern. 
 
 It is by no means infrequent that one of the parties to a 
 lease, instead of assigning the whole of the interest he may 
 possess, as in the former cases, assigns but a part of it ; and in 
 certain sorts of such assignments covenants which are sep- 
 arable in their effect may be carried to the assignees in the 
 same way as if all the interest had been assigned. By ob- 
 servation it will appear that these partial assignments may be 
 of several kinds. The lessee may assign part of his holding 
 for all the remainder of the term, or he may assign all or 
 part of the holding for part of the term. So the lessor may 
 assign all the reversion in part of the land, or part of the 
 reversion in all or part of the land. 
 
 In the first of these, where the lessee assigns part of the 
 holding for all the remainder of the term, the covenants may 
 run. Palmer v. Edwards, 1 Doug. 187 ; Congham v. King, 
 Cro. Car. 221 ; Simpson v. Clayton, 4 Bing. I^. 0. 758, 780 ; 
 Harris v. Frank, 52 Miss. 155 ; Main v. Davis, 32 Barb. 461 ; 
 Dartmouth College v. Clough, 8 New H. 22 ; Lansford v. 
 Alexander, 4 Dev. & Bat. 40. So in the third case where 
 the lessor assigns all the reversion in part of the land cove- 
 
 1 For the discussion of the ability thus to avoid liability see 
 post, p. 182, and note. 
 
COVEH'AH'TS IH LEASES. 99 
 
 Hants may run. Twynam v. Pickard, 2 B. & Aid. 105 ; Pike 
 V. Leiter, 127 111. 287. And likewise in the fourth case, 
 where the lessor assigns part of the reversion in all the land 
 the covenants may run; and so it would seem, even though 
 the reversion is assigned for years only. Co. Lit. 215a; At- 
 toe V. Hemmings, 2 Bulst. 281; Wright v. Burroughs, 4 D. 
 & L. 438, same case, 3 C. B. 685. 
 
 In the second case, however, where the lessee assigns all 
 or part of the holding for only part of the term, the covenants 
 do not run, for the assignment in this case is a mere sublet- 
 ting. Halford v. Hatch, 1 Doug. 183 ; Camp v. Scott, 47 
 Conn. 366, 377 ; Mayhew v. Hardesty, 8 Md. 479 ; Lee v. 
 Payne, 4 Mich. 106 ; Dartmouth College v. Clough, 8 IST. H. 
 22; Quackenboss v. Clark, 12 Wend. 555; Jennings v. Alex- 
 ander, 1 Hilton 154; May v. Sheehy, 4 Cranch C. C. 135; 
 Harvey v. McGrew, 44 Texas 412. And in Quackenboss v. 
 Clark the court went so far as to hold that the lease must 
 be assigned in form, it would seem, even though the whole re- 
 raainder of the term be assigned ; for possession they regarded 
 as merely prima facie proof of assignment.^ The reasons 
 for all these distinctions will appear clearly from the sequel. 
 
 It is worthy of especial note that in assignments of the 
 reversion, assignments for years carry the assumption of 
 covenants as though the land were assigned. The possessor 
 of a long term may sublet a part of it with covenants, and 
 then assign his whole interest in the term, as in Vernon v. 
 Smith, 5 B. & Aid. 1 ; Pyot v. Lady St. John, Cro. Jac. 329. 
 Or the owner of land in fee may lease for a term with cove- 
 nants and then assign the reversion for a longer term, as in 
 some of the cases cited above. The assignee of the residue 
 of the term or the assignee for years of the reversion takes 
 the assignor's present interest in the tenement, and as the 
 
 1 This exemption of the sublessee as a defendant applies only to 
 actions at law; of course he must be made defendant to a motion 
 for an injunction, as in Dunn v. Barton, 16 Pla. 765. 
 
100 COVEITANTS IN LEASES. 
 
 period assigned extends beyond the time of the former leas© 
 the benefits and burdens of that are supposed to be conveyed, 
 too, the ordinary instance of benefits being the rents of the 
 former lease. 
 
 Such a set of decisions are not necessarily overruled there- 
 fore by Hansel v. Norton, 22 Ch.D.729 (stated above). There 
 the assigTiment of the reversion for a term of one thousand 
 years evidently created only a dry trust, and was not intended 
 to carry the benefits of the seven years' lease existing ; so that 
 the reversioner for life was held to the burdens of the seven 
 years' lease, as he probably received the benefits. 
 
 On theory, however, it is believed to be difficult to sustain 
 the cases of assignment of the reversioner's rights with a 
 second longer term created by him. For two persons separ- 
 ately to have entire right to the possession of the same land 
 from the same person at the same time, is impossible. And 
 where a greater term is conceived to be granted out of the re- 
 version, this is of course done. At Common Law possession 
 of the second term could not be given without forcible ouster 
 of the first lessee. The notion technically called a surrender 
 in law is based upon the soundness of this proposition. There- 
 fore the granting of the second term can amount only to the 
 grant of a term to begin at the expiration of the existing term 
 plus the assignment of the rent to be gotten from that term. 
 Such a grant, however, would be but the grant of a future 
 interest ^ giving no rights to possession whatever until the 
 lease in question should be done; and this second grantee 
 could gain no right to sue on covenants. Allen v. Wooley, 
 1 Blkf. (Ind.) 14-9. 
 
 It is evident that if privity of estate determines the run- 
 ning of covenants, these covenants could not run, as the 
 second termor has not received the estate which the rever- 
 sioner had at the time of the first lease. But though it has 
 been explained above that privity of estate is merely a means 
 
 1 II Bl. Com. 144; Gray, Rule against Perpetuities, sec. VI. 
 
COVENANTS IN LEASES. 101 
 
 of determining -what assigns were intended by the lessor or 
 by the f ramers of the statute to have the benefit of covenants ; 
 the natural conception would be that those are assigns within 
 the meaning of the term who succeed to the lessor's present 
 interest in the estate out of which the first term is carved. 
 If the lease granted were for years, then the lessor has an 
 estate in possession ; for the lessee for years is always holding 
 "the lessor's possession; and it is the successor to this estate 
 in possession who is to have the benefit and the burden of 
 covenants, as he must succeed to the benefits or burdens of 
 "the existence of the lease. 
 
 The cases therefore seem clearly anomalous, and if law, 
 indicate merely a bold construction of the Statute of 32 
 Henry VIII to carry out the intention of the parties at the 
 •creation of the second term out of the reversion. There seems 
 io be no decision on the subject in America, and it is to be 
 hoped that the cases will not be followed. 
 
 It requires only a hasty glance, on the other hand, to 
 see that cases like Vernon v. Smith cause no such difficulty. 
 Where a lessee sublets, by a sort of fiction he is assimilated to 
 the possessor of a freehold. His sublessee holds of him, and 
 his assignee steps into his place and gains all his rights and 
 responsibilities toward the sublessee. The assignor's present 
 interest is gone. Attornment even to the original lessor is 
 ■dispensed with by statute as we have seen. 
 
 It is evident from this reasoning that the difference in the 
 law between partial assignments and subleases in the run- 
 ning of covenants is not based upon convenience or acci- 
 dent, but is fundamental. In a partial assignment of the 
 land held in lease for the whole of the term the land is 
 merely severed into two parts, and there exist two leases, 
 ■each in possession. While in the case of the sublease, extend- 
 ing over but part of the term, to hold of the original lessor 
 would be to create two terms, only one of which could be 
 in possession, followed by another in future, which could not 
 
102 COVENANTS IN LEASES. 
 
 be existent at all, — a reductio ad absurdum. That this is. 
 the law with regard to subletting, is evidence of the unsound- 
 ness of the line of cases just discussed. 
 
 One point more is to be noticed in reference to partial 
 assignments. The covenant running with the severed hold- 
 ing must be a severable covenant, as a covenant to repair, a 
 covenant to insure, a covenant to keep the land in cultiva- 
 tion, or the like. Where the lease contains a covenant to 
 do some one thing or to yield some one benefit the law cannot 
 undertake to decide what proportion must be assumed by each 
 party. Such is a covenant to pay a lump sum of rent. 
 Walker's Case, 3 Co. 23. So Lord Coke says the statute 
 does not extend to "covenants for payment of a sum in 
 gross, delivery of corn, wood or the like." Co. Lit. 215b. It. 
 is easy to see also how the law of conditions in leases was 
 worked out in the same way, making, however, the converse 
 of the former case. The Statute of 32 Henry VIII had 
 declared that conditions should pass to assignees of re- 
 versions the same way as covenants. But a condition the law 
 regarded very strictly, allowing neither more nor less to be 
 done in enforcing it than was expressly stated. And so when 
 the breach was committed by the lessee there was the right 
 to the lessor, it was conceived, to destroy the whole term only. 
 If, therefore, the lessor had aliened part of the land in fee,. 
 he had no right to enter all the land to oust the lessee ; and 
 so the condition was destroyed. That seems to have been 
 the ground of Knight's Case, 5 Co. 5.5b; and Mr. Justice 
 Holroyd commenting on it in Twynam v. Pickard, 2 B. & 
 Aid. 105, is reported to have said, "It was expressly held 
 that the severance of any part of the reversion destroyed the 
 whole condition (which was entire, and the breach of which 
 gave one entire right of entry into the whole premises on 
 non payment of rent)." But the learned Justice adds, "That 
 being so, the lessor at Common Law would have no right, in 
 
COVENANTS IN LEASES. 103 
 
 such a case, to vacate the lease by entry, and consequently 
 his assignee would not have that right under the Statute." 
 
 It is hardly necessary to say that Mr. Justice Holroyd's 
 addition is unsound, as the right of entry does not pass to 
 the assignee after the assignment, but all rights that the 
 lessor had before the assignment, passed to the assignee on the 
 assignment; so the fact that after the assignment the lessor 
 had no right of entry left could have nothing to do with the 
 matter. The conclusion, however, merely shows that the 
 court was not certain of its position; and it would indeed 
 seem that in the whole matter the law has been guilty of 
 inconsistency. The condition in Knight's Case was entry for 
 non-payment of rent, and as rent was a lump sum, not to 
 come out of any particular part of the land, of course it could 
 not be apportioned any more than a covenant. The reason, 
 however, is not satisfactory ; conditions are construed strictly 
 for the benefit of him in possession, and the condition must 
 clearly have occurred. But when the condition has occurred, 
 that is no reason why the lessor should have to turn the lessee 
 out of all the land, if he chooses to turn him out of a part 
 only. And so if the condition had been the maintaining of 
 certain repairs on particular parts of the land, that is to say, 
 if the undertaking had been severable so as to apply definitely 
 to each part of the land, the reasoning of Knight's Case would 
 not have been sufficient to show that the lessor might not turn 
 the lessee out of one part, and the assignee have turned him 
 out or have left him in the other part. The trouble would 
 seem deeper rooted than that. The true reason going through 
 the whole question is that a lease is an entire contract, giving 
 rise to a whole term, and that term cannot be severed into 
 anything else so long as it exists at all. The moment it is 
 severed, it becomes merely two new terms, and that should 
 require the consent of all parties. JSTow, whatever be the 
 nature of the undertaking, whether divisible or not, when the 
 breach occurs, he only can enter who has a right to destroy 
 
104 COVENANTS IN LEASES. 
 
 the whole term. The contract is one contract, and cannot be 
 made two without the lessee's consent. So since the lessor 
 can no longer enforce the contract, nobody can. 
 
 This was probably what Lord Coke meant ; but this would 
 have caused the later courts no end of trouble. The notion 
 is thoroughgoing. If the lease is one entire contract for 
 conditions, it is one entire contract for covenants ; and if 
 that be the case, the assignee of part of the reversion in part 
 of the land cannot sue on covenants to perform severable 
 obligations unless the lessee should consent to the dissolu- 
 tion of the term into two terms. And that was exactly what 
 Mr. Justice Holroyd was preparing to say that the partial 
 assignee could do in that very case of Twynam v. Pickard. 
 Of course the confusion would never have arisen if sever- 
 able and inseverable obligations with condition had been 
 before the court at the time -they were considering the prac- 
 tical advantage of severing covenants. But the matter is not 
 of great importance when it is remembered that partial as- 
 sigTiments of the covenantor or of the lessee under condition 
 must always amount to giving his consent to the novation ; 
 and that will reduce the cases to a, great extent. 
 
 It is interesting to note that with respect to conditions 
 subletting does not form an.exception as it does in the run- 
 ning of covenants. As the sublessee is not rcognized as a 
 different person from the lessee, his acts must be the same 
 as those of the lessee himself; so if the condition is broken 
 the lessor's right to enter arises, and the term may be brought 
 to an end. Wheeler v. Earle, 5 Cush. 31 ; Wertheimer v. 
 Wayne Circuit Judge, 83 Mich. 56 (semble). 
 
 It is perhaps fitting now to consider whether every legal 
 successor of the covenanting parties to leases has the rights 
 and obligations of covenants. It has been seen that at Com- 
 mon Law rights and burdens went only to those who were 
 named. It has been attempted to show that under the liberal 
 reading of the Statute of Leases all requirements of naming 
 
COVEN"ANTS IN LEASES. 105 
 
 "Were dispensed with. But it remains to be said that under 
 the influence of Lord Coke, whose master mind has had more 
 to do with framing the later Common Law than any other 
 English Judge, the statute was interpreted to have a much 
 narrower effect. While it was never held after the statute 
 that the heir must be named to be bound by the covenants,^ 
 it was expressly held that in certain cases the assigns will 
 Tiot be bound without being expressly named. This was de- 
 cided in Spencer's Case, 5 Co. 16a, unquestionably the lead- 
 ing case on covenants in leases. Spencer had leased land for 
 years by deed in which the lessee covenanted for himself, his 
 €xecutors, and administrators that he would build a brick 
 wall about part of the land demised. The lease then by two 
 assignments came to the defendant, and Spencer sued him for 
 & breach of the covenant. The court held that "when the 
 covenant extended to a thing in esse, parcel of the demise, the 
 thing to be done by force of the covenant is quodammodo 
 annexed and appurtenant to the thing demised, and shall go 
 with the land, and shall bind the assignee although he be not 
 bound by express words ; * * * bxxt in the case at bar, 
 the covenant concerns a thing which- is not in esse at the 
 time of the demise made, but to be newly built after, and 
 therefore shall bind the covenantor, his executors or admin- 
 istrators, and not the assignee, for the law will not annex 
 the covenant to a thing which hath no being." 
 
 ISTo better proof of the idleness of the distinction can be 
 given than that the court proceeded to hold that it was 
 possible to annex the covenant to a thing not in esse if the 
 assigns were included in the covenant. This decision was 
 made forty-two years after the Statute of 32 Henry VIII, 
 
 1 In 28 H. VIII, Dyer, 14, 69, only four years before the statute, it 
 ■was held that a covenant by a lessee to build a house runs against 
 executors without being named, but not against heirs. Lord Coke 
 does not notice this, so it could hardly have formed the basis of 
 the reasoning in Spencer's Case. 
 
106 COVENANTS IN LEASES. 
 
 but it seems to have been the origin of the distinction which 
 has becorae so famous. It cites no authority itself. 
 
 This was in 25 Eliz. It had been held already in 3 Eliz. 
 that the word, "assigns," need not be inserted to insure the 
 running of a covenant to repair, Moore 27, without any at- 
 tention being paid to a further distinction. And in 39 Eliz., 
 Hyde v. Deane and Canons of Windsor, Cro. Eliz. 552, it 
 was held generally that covenants running with the land 
 could bind assignees though they were not mentioned, it being 
 added that it did at Common Law, the arg-ument against the 
 decision being based on Y. B. 48 E. Ill 2, and Dyer 114^ 
 that not even the executor could be bound without mention,, 
 and 25 H. VIII in Brooke, Covenant 32, that the assign, 
 must always be named. 
 
 There have been doubts even that Spencer's Case was 
 really what it is reported to have been by Coke. An anony- 
 mous case in 26 Eliz., one year later than the date Coke 
 assigns to Spencer's Case, is reported by Moore (Moore 300), 
 which has been taken to report the same proceedings. The 
 arguments on this point, as well as the relative importance of 
 that decision, have been so carefully expressed by the editor 
 of Smith's Leading Cases that it would seem best to follow 
 it verbatim. 
 
 "The case no doubt bears a strong resemblance to Spen- 
 cer's, but there are good grounds for contending that it is 
 not the same, as well from the difference in the statements of 
 the case as from the fact that Spencer's Case was in the 
 Queen's Bench, while that in Moore, as appears from the 
 names of the judges and counsel concerned in it, must have 
 been in the Common Pleas. (See Dugdale, Grig. Judc, 48, 
 Chronica Series, 94, 95; Eoss Judges of England, Vol. 6,. 
 p. 158; Moore, 123, pi. 269; 242 pi. 381, Cro. Eliz. 24). 
 Moreover, in reports of cases determined not long after, Spen- 
 cer's Case is cited from Coke and not from Moore (see Alton 
 v. Hemmings, 2 Bulst. 281, 12 Jac. 1, before Lord Coke 
 
COVENANTS IN LEASES. 107 
 
 himself; and Smith v. Simonds, Comb. 64, 3 Jac. II). 
 (JSTevertheless, as early as 3 W. & M. the two cases seem to 
 have been regarded as the same. See Glover v. Cope, 1 
 Show., at p. 287, where Spencer's Case is cited, according 
 to the report, by How arguendo from Moore, 159). It may 
 also be remarked in reference to the judgment in MinshuU 
 v. Oakes, so far as it rests on a supposed judgment in Bally 
 V. Wells, to the contrary of Spencer's Case, that, though such 
 a statement does appear in the report in Wilson, it is not to be 
 found in the report of the same case in Wilmot's ]Srotes of 
 Cases (see p. 341) ; and as the opinion of the court was de- 
 livered byWilmot, C. J., himself, this is probably the more ac- 
 curate report of the two. Indeed the statement in Wilson would 
 seem to be a clear mistake, as a little further on the true 
 eifect of Spencer's Case is cited, and the court are reported 
 to have said: 'We rather chose to adhere to Lord Coke's 
 authority, that such a covenant will not bind the assignee 
 unless he be named.' In Wilmot's notes of cases, the point 
 is simply put aside as not necessary to the decision of the 
 case before the court, and no opinion is expressed upon it." 
 While it seems clear, therefore, that Chief Baron Pollock's 
 discussion in MinshuU v. Oakes, 2 H. & W. 793, was a little 
 hasty in considering Spencer's Case the same, it is by no 
 means clear that he would not have said the same thing not- 
 withstanding his error. If the case in Moore 159 was a 
 different case it was really a decision overruling Spencer's 
 Case (though in a different court), as it was clearly decided 
 differently; and the case cited by Gawdy must have been 
 a decision before Spencer's Case, clearly decided differently. 
 Moreover, as Chief Baron Pollock says, Smith v. Arnold, 3 
 Salk. 4, was directly contrary, and in Bally v. Wells, 3 Wils. 
 25, the contrary is stated. So, though Grey v. Cuthbertson, 
 2 Chitty 282, while a merely blind following of Spencer's 
 Case, must have the weight of a decision ; it would seem that 
 
108 COVENAITTS IB" LEASES. 
 
 the reasoning in MinshuU v. Oakes indicates what the law 
 in England would be held to-day. 
 
 In America, however, the state of the law on this worri- 
 some point has not been worked out so satisfactorily. The 
 American editor to the ninth edition of Smith's Leading 
 Cases says the distinction has been generally ignored, vol. 1, 
 p. 208, as has indeed been the case in the instances he men- 
 tions. But those courts which pay the most attention to care- 
 ful consideration of old English decisions, have followed, 
 as might have been feared, the mistakes as well as the wisdom 
 of the great judge whose dixit meant more than the law; 
 while in others the distinction in Spencer's Case seems to 
 have been followed to the extent of overruling previous de- 
 cisions in the jurisdiction to the contrary. Some states, too, 
 have settled the question by code or statute. But in any 
 jurisdictions where a statute does not conflict, whether the 
 question has come up or not there would seem no reason to 
 fear that a decision could not be obtained in accord with 
 Minshull v. Oakes. The cases are given in the note.^ 
 
 But the decision upon the insertion or omission of "as- 
 signs" is not by any means the most important feature of 
 
 1 In the following jurisdictions tlie last decision indicated the 
 necessity of including assigns: Bailey v. Richardson, 66 Cal. 416, 
 by Statute; Harris v. Goslin, 3 Harrington 338 (semble); Hansen 
 T. Meyer, 81 111. 321; Conover v. Smith, 17 N. J. Eq. 57; Tollman 
 v. Coffin, 4 N. Y. 134, s. o. 8 N. Y. 465; and see Johnson v. Bates, 
 16 J. & S. 180; Thompson v. Rose, 8 Cow. 266; Brookes v. Smith, 
 Thompson Cases 226; Bream v. Dickinson, 2 Hump. 126; Cronin v. 
 Watkins, 1 Tenn. Ch. 119; Hartung v. Witte, 59 Wis. 285. Cf. Dorsey 
 v. Ry., 58 111. 65. 
 
 In the following jurisdiction the last decision indicates that as- 
 signs need not be named: Frederick v. Callahan, 40 la. 311 (by 
 Const, of State of la.) ; Bradford Oil Co. v. Blair, 113 Pa. 83; Masury 
 V. Southworth, 9 0. St. 340. 
 
 In Masury v. Southworth the court held that the Statute, 32 H. 
 VIII, did not hold in Ohio, but where rights would exist in equity 
 they might be enforced in law in the party's own name. Petroleum 
 Co. V. Weare, 44 Ohio St. 604, did not notice this case, but seemed 
 to accept the statute as running in Ohio, and followed Spencer's Case. 
 
COVENANTS IN LEASES. 109 
 
 Spencer's Case. The case is very important as interpreting 
 that the Statute of 32 H. VIII was not intended to change 
 the law in confining the running of covenants to those which 
 touched or concerned the land. The second resolution con- 
 tinues, "But though the covenant be for him and his assigns, 
 yet if the thing to be done be merely collateral to the land, 
 and doth not touch or concern the thing demised in any 
 sort, the assignee shall not be charged." Although the ques- 
 tion what touches or concerns the land is not so broad here 
 as it is in considering covenants in general, because the lease 
 and the reversion both cover the same piece of land, yet the 
 question is hardly certain at any view, since it had no certain 
 origin/ £;vAny method of determining what covenants con- 
 cern Ittie land can be no more than choosing some test which 
 covers all or nearly all the decisions. As a prime question 
 there is no way to determine that a covenant concerns the 
 land. It is a question that each judge must decide for him- 
 self, jiist as he decides that a piece of evidence is admissible 
 as logically bearing upon the subject, or that a certain amount 
 of evidence is enough to go to the jury; as he decides that 
 certain actions amount to contempt, or that a particular peti- 
 tioner is liable to such injury as warrants an injunction; as 
 he decides that a certain act of a legislature is what a reason- 
 able assemblyman might consider due process of law. All 
 these questions may be rendered easier by the holdings of pre- 
 vious judges, but after all they give room for very varying 
 opinions^The Common Law warranty clearly concerned the 
 land and 'its derivative covenant for title concerns it just as 
 closely, but when that step is passed the trouble begins. Sev- 
 eral tests have been suggested by courts in passing upon indi- 
 vidual cases, and perhaps one is as much assistance as 
 another. Lord EUenborough said a covenant would run "if 
 it affected the nature, quality, or value of the thing demised, 
 independently of collateral circumstances; or if it affected 
 the mode of enjoying it." Congleton v. Pattison, 10 East 
 
110 COVEH"AITTS IN" LEASES. 
 
 130. Perhaps Vyvyan v. Arthur, 1 B. & C. 410, involving 
 a covenant to grind corn on the land at the lessor's mill, 
 would not fall within this test; but it would certainly fall 
 within the negative test given by Mr. Justice Best in Vernon 
 V. Smith, 5 B. & Aid. 1, which involved a covenant to keep 
 insurance with which to rebuild a house : "A covenant in a 
 lease which the covenantee cannot, after his assignment, take 
 advantage of, and which is beneficial to' the assignee as such, 
 will go with the estate assigned." This test the learned justice 
 applied again in Vyvyan v. Arthur. On the other hand, 
 Thomas v. Hayward, L. E. 4 Ex. 311, would seem to have 
 been within both the tests and yet the covenant by the lessor 
 not to build another spirit shop within a half mile of the de- 
 mised premises, was held to run to an assignee of the lessee. 
 As the only guide, therefore, can be the decisions, the follow- 
 ing collection of covenants which have been held capable of 
 running has been inserted for convenience in reference : 
 
 A covenant for renewal of the lease. Doe v. Bettison, 12 
 East 305 ; Piggot v. Mason, 1 Paige 412 ; Pike v. Leiter, 127 
 111. 287; Blackmore v. Boardman, 28 Mo. 420; Leppla v. 
 Mackey, 31 Minn. 75 ; Wilkinson v. Pettit, 47 Barb. 230 ; a 
 covenant to cancel the lease on notice, Boe v. Hayley, 12 East 
 464; a covenant to repair, Spencer's Case, 5 Co. 16a; Boe v. 
 Dean of Windsor, 5 Coke 24 ; Hayes v. IST. Y. Mining Co., 2 
 Col. 74; Williams v. Earle, L.E., 3 Q.B.739 ; Pollard v. Shaf- 
 fer, 1 Dal. 230 ; Crawford v. Wetherbee, 77 Wise. 419 ; Myers 
 V. Burns, 33 Barb. 401 ; a covenant to leave the possession 
 peaceable to lessor and in good repair, Viner Abr. Gov. K. 
 19 ; Morgan v. Hardy, 17 Q. B. D. 770 ; to repair and renew 
 fixtures and machinery, Morgan v. Hardy, 17 Q. B. D. 770 ; 
 a covenant not to assign without the lessor's consent, Williams 
 V. Earle, L. K., 3 Q. B. 739 ; West v. Dobb, L. E., 4 Q. B. 
 634; Varley v. Coppard, L. E., 7 C. P. 505 ; McCormick v. 
 Stowell, 138 Mass. 431; Shattuck v. Lovejoy, 8 Gray 204; 
 Kew v. Trainor, 150 111. 150 ; Monro v. Waller, 28 Ont. 29 ; 
 
COVEKANTS IN LEASES. Ill 
 
 or not to sublet, Brolasky v. Hood, 6 Phila. 193. It is inter- 
 esting to note in connection with the covenant not to assign 
 without the lessor's consent that though the covenant is 
 broken the lease must pass, Chi. Attachment Co. v. Davis 
 Sewing Machine Co., 25 ~S. E. Rep. 669 (111.) ; whereas if 
 the lease had contained a condition it would have been for- 
 feitable and at an end upon entry by the lessor. Dumpor's 
 Case, 4 Coke 119. Therefore, for any breaches of other 
 covenants occurring after this wilful breach the new assignee 
 will be liable, while the assignor, if himself an assignee, will 
 not be. This is discussed in Williams v. Earle. Compare, 
 however, Hynes v. Ecker, 34 Mo. App. 650, contra. In 
 Chipman v. Emeric, 5 Cal. 49, and in Eeid v. Weissner & 
 Sons Brewing Co., 40 Atl. Eep. 877 (Md.), by an analogy to 
 ■conditions, it was held that one consent to assignment where 
 there was a covenant against assignment without the lessor's 
 •consent would destroy the covenant in future. To avoid this, 
 an ingenious but probably unnecessary arrangement was 
 made in Lindsley v. Schneide Brewing Co., 59 Mo. App. 
 371, whereby the assignee agreed to carry out the lessee's 
 covenants in consideration that the lessor consented to the 
 alienation. The court properly held that this had the addi- 
 tional effect of making this assignee liable on the covenants 
 ■even after he had again reassigned, an obligation which he 
 would not have had but for the collateral agreement. 
 ■''"^In Williams v. Earle the true explanation seems to ap- 
 pear. An action was allowed against the assignee of a lessee 
 for assigning over; but a difference was pointed out between 
 a covenant not to assign and a covenant for heirs and as- 
 signs not to assign without assent. The first was never any- 
 thing but a personal covenant affecting the land only 
 collaterally. c4 
 
 It is evident also that the action for the breach of cove- 
 nant to assign must therefore be brought after the land has 
 passed away, which is a clear proof that liability on cove- 
 
112 COVENAU-TS IN LEASES. 
 
 Hants broken before assignment but enforced afterwards ia 
 cognizable at law and not necessarily in equity, as was held 
 by the cases from Maryland discussed above. Kew v. 
 Trainor, 150 111. 150 ; Monro v. Waller, 28 Ont. 29. 
 
 A condition has been held to run which provides that the 
 land be as well stocked with game on its relinquishment as 
 at the beginning of the lease, Hooper v. Clark, L. K. 2 Q. 
 B. 200 ; a covenant runs to discharge the lessor from all or- 
 dinary or extraordinary burdens. Doe v. Dean of Windsor, 
 5 Co. 25 ; not to plow part of lands leased, Cockson v. Cock, 
 Cro. Jac. 125 ; to reside on the premises, Tatem v. Chaplin, 
 2 H. Bl. 133 ; a covenant to revalue the lease at periods. 
 Young V. Wrightson, 24 Weekly Law Bui. 457 ; a covenant 
 not to carry on a particular trade, Congleton v. Patteson, 10 
 East 136; Wertheimer v. Wayne Circuit Judge, 83 Mich. 
 56 ; Steis v. Kranz, 32 Minn. 313 ; a covenant to maintain 
 the insurance on a building where by statute the insurance 
 must go to rebuilding, Vernon v. Smith, 1 B. & Aid. 1 ; 
 Masury v. Southworth, 9 Ohio St. 340 ; ISTor. Trust Co. v. 
 Snyder, 46 U. S. App. 179 and 579 ; and it has been decided 
 that a covenant to insure will run with the lease where the 
 lessee can apply to rebuilding or give to the lessor at the 
 lessee's election, Thomas v. Van Kapff, 6 G. & J. 381 ; May- 
 hew V. Hardesty, 8 Md. 479. A covenant to grind at the 
 lessor's mill all the grain to be grown on the land will run 
 against a subsequent assignee of the lessee, Vyvyan v. Ar- 
 thur, 1 B. & C. 415 ; Beach v. Barons, 13 Barb. 305 ; so a 
 covenant to build a mill adapted to the working of mines on 
 the land, Easterby v. Sampson, 9 B. & C. 505. In Heming- 
 way V. Fernandes, 13 Sirh. 228, the lessee of a colliery cove- 
 nanted to build a railway over the land in lease and to haul 
 all coal from that mine as well as other mines of the lessee 
 over this railway, paying the lessor at a fixed rate per ton. 
 It was held that the covenant ran notwithstanding it was for 
 carrying coal not dug on the land, though this feature of the 
 
COVEITA:?fTS IN LEASES. 113 
 
 covenant would seem almost as much collateral as the sup- 
 position in the second resolution of Spencer's Case. A les- 
 see's covenant will run not to do such acts as will in any way- 
 cause danger of forfeit of a liquor license to the premises, 
 Fleetwood v. Hull, 23 Q. B. D. 35 ; so a covenant by the lessor 
 to sell the fee to the lessee, Ee Adams & Kensington Vestry, 
 24 Ch. D. 199, 27 id. 394; a covenant by lessee not to carry 
 on any business, EoUs v. Miller, 2Y Ch. D. Tl; and a cove- 
 nant not to carry on a particular trade, Clements v. Welles, 
 
 1 Eq. 200 ; Bishop of St. Albans v. Battersley, 3 Q. B. D. 
 359 ; or a noisome business, Hall v. Ewin, 37 Ch. D. 74; so 
 a covenant to pay taxes and assessments which do not include 
 fines upon landlord for breach of duty, Tidswell v. Whit- 
 worth, L. E. 2 C. P. 326. And see on this subject of cove- 
 nants to pay taxes and assessments Jeffrey v. ISTeale, L. E. 
 6 C. P. 240 ; Crosse v. Eaw, L. E. 9 Ex. 209 ; Hartley v. 
 Hodson, 4 C. P. D. 367; Budd v. Marshall, 5 C. P. D. 481; 
 Allen V. Dickenson, 9 Q. B. D. 632 ; Wilkinson v. Collier, 13 
 Q. B. D. 1; Aldridge v. Feme, 17 Q. B. D. 212; Smith v. 
 Eobinson, [1893], 2 Q. B. 53 ; Torrey v. Wallace, 3 Cushing 
 442; Mason v. Smith, 131 Mass. 510; Wills v. Summers, 45 
 Minn. 90 ; Trask v. Graham, 47 Minn. 571 ; Astor v. Hoyt, 
 5 Wend. 603; Sandwitch v. De Silver, 1 Brown (Pa.) 221; 
 Love V. Howard, 6 E. I. 116 ; Univ. Soc. v. Providence, 6 
 E. I. 235 ; Post v. Kearney, 2 Comst. 394 ; Simonds v. Tur- 
 ner, 120 Mass. 328. 
 
 A covenant to retain and preserve the land where the lease 
 was for 999 years was held to run; Doherty v. AUman, 3 A. 
 C. 709 ; so a covenant by the Postmaster General that the 
 Post Office should be kept on the premises, Wadham v. P. 
 M. Genl., L. E. 6 Q. B. 644. In Morris v. Kennedy, [1896], 
 
 2 Ir. 247, the lessor had covenanted to make a street in front 
 of the premises within one year, and the assignee of the 
 lessee did not get the premises until after that time, so it 
 
114 COVEITANTS I2T LEASES. 
 
 "was held that the covenant was broken before he got it and 
 no action would lie. 
 
 A covenant to supply water will run with the land, Jour- 
 dain v. Wilson, 4 B. & Aid. 266 ; Shaber v. St. Paul Water 
 Co., 30 Minn. 179 ; Harris v. Goslin, 3 Harr. 338 ; a cove- 
 nant to allow the lessee to use for three years land cleared by 
 him during the tenancy, Callen v. McDonald, 72 Ala. 96; a 
 covenant to pull down old chimneys and erect new, Harris 
 V. Goslin, 3 Harr. 338 ; a covenant by the lessor to purchase 
 improvements on the land, Hunt v. Danforth, 2 Curtis C. C. 
 592 ; Stockett v. Howard, 34 Md. 121 ; Bayley v. Eichardson, 
 66 CaL 416; Frederick v. Callahan, 40 la. 311; Lametti v. 
 Anderson, 6 Cow. 302, 6 Wend. 326. But see contra Wat- 
 son V. Gardner, 119 HI. 312; Johnstone v. Bates, 16 J. & S. 
 180; Bream v. Dickerson, 2 Hump. 126 ; and compare Bailie 
 V. Rodway, 27 Wise. 172, that it runs with notice. The im- 
 provements must be fixtures, however, Garton v. Gregory, 
 3 B. & S. 90. 
 
 So always a covenant by the lessee to pay rent, Salisbury 
 V. Shirley, 66 Cal. 223; AUenspach v. Wagner, 9 Col. 127; 
 Webster v. Nichols, 104 HI. 160; Pfaff v. Golden, 126 Mass. 
 402 ; Fennell v. Guffey, 139 Pa. 341 ; State v. Martin, 14 
 Lea 92 ; and a covenant to remove rubbish made by a quarry, 
 Coppinger v. Armstrong, 4 111. App. 637 ; and a covenant 
 hj a lessee to continue business. Oil Co. v. Blair, 113 Pa. 
 83. But an exclusive privilege of vending merchandise in 
 a town will not run, Taylor v. Owen, 2 Blkf. 301 ; and gen- 
 erally an agreement to pay a note or mortgage will not run, 
 Dolph V. White, 12 IST. Y. 296, and a covenant not to keep 
 a livery stable within five miles has been held not to run, 
 Herbert v. Dupaty, 42 La. Ann. 343.^ 
 
 1 It is needless to point out that tlie statute of 32 H. VIII, would 
 iave no operation under the Civil Law in Louisiana. Any running 
 of agreements would have to he on other principles. But It is held 
 in Louisiana that the purchaser of a lease is liahle on all the obliga- 
 tions of the lease. Lehman v. Dreyfus, 37 La. Ann. 587. 
 
COVENANTS IN LEASES. 115 
 
 Is it the law, then, that every covenant which thus touches 
 ■or concerns the land must run with the land ? or must the in- 
 tention of the original contracting parties determine whether 
 it shall run or not ? We see that the intention cannot make 
 the covenant run where it does not touch or concern the land. 
 This is embraced in the decisions in England, and has been 
 expressly decided in America, Gibson v. Holden, 115 111. 
 199. Any other law would be a direct denial of the privity 
 of contract, as it would furnish an easy pretext to avoid it. 
 
 It is certain, moreover, that the contract of assignment 
 
 cannot determine the running of the covenants by means of 
 
 the amount paid for the property, as the covenantor after 
 
 his obligation has been created cannot have it extended by 
 
 the contracts of others. Indeed it sometimes occurs that 
 
 though the contract of assignment contain no reference to the 
 
 covenant, an assignee can sue on covenants in the original 
 
 instrument. But while intention may not be able to procure 
 
 the running of a covenant, should the running attache as an 
 
 effect to every covenant of the character which concerns the 
 
 land, the intent merely operating to create a covenant? 
 
 That is to say, is running with the land an effect which the 
 
 law attaches willingly or unwillingly to a covenant which 
 
 benefits or burdens the land? This was of course not the 
 
 case with the old law of warranty; for the express warranty 
 
 limited the running as the warrantor intended. But the 
 
 Statute of 32 H. VIII has dispensed with that requirement, 
 
 and if the distinction of Lord Coke is dispensed with, the 
 
 contract must always have that effect. All this would be 
 
 simple enough but for one decision, and that is that the 
 
 lessor may expressly limit the liability to himself alone. 
 
 In Congleton v. Pattison, 10 East 136, it was held that a covenant 
 to employ only citizens of A would not run, as it does not concern the 
 land — making no difference whether the land is worked hy A citi- 
 zens or B citizens. But compare White v. Southend Hotel Co., [1891], 
 1 Ch. 767, holding that the benefit and burden of a covenant to sell 
 only wines bought of the l)fessor will run with the lease. 
 
116 COVENANTS IN LEASES. 
 
 Kemp V. Bird, 5 Ch. D. 549, 974. Of course this is against 
 the statute in allowing the lessor to have rights which are 
 not extended to his assignee, and at once throws the contract 
 back t-o the intention of the parties. 
 
 One other point may cause some difficulty, the right which 
 the covenantee has to release the covenant whenever he 
 chooses, so as to bar those claiming under him. Littlefield v. 
 Gatchell, 32 Me. 390; 1 Smith L. C, 8 Am. ed., 234. But 
 it should not be attempted to construe the statute unnat- 
 urally; and while the lessee must have had the right to re- 
 lease it, yet at the time of the assignment no such right 
 remained, and that should be all that is required to comply 
 with the statute. 
 
 If Kemp V. Bird is not to be sustained, then, it may be said 
 that the law only requires that the covenant touch or concern 
 the land, and that in leases, at least, intention has nothing to 
 do with the running of covenants. The statute attaches the 
 running of the covenant as an effect of every assignment of 
 the same estate.-* 
 
 The result of this conclusion must be that the importance 
 of privity of estate is increased, not, however, because privity 
 of estate indicates who might have been meant by the par- 
 ties in contracting for assigns, but because, regardless of in- 
 tention, only those in privity of estate can well be called "as- 
 signs" within the meaning of the statute, upon which the 
 responsibility of the running has been thrown. But here a 
 line of decisions has broken away, and places the running 
 upon intention again, utterly disregarding the fact that in 
 the particular instances no privity of estate exists. This 
 would seem an anomaly, and must at least be confined to the 
 
 1 Of course it is always a question of intention whether a given 
 stipulation is a covenant or a condition. Peers v. Consol. Coal Co., 
 59 111. App. 595; but that is a different matter, and can best await 
 discussion in the next chapter. Moreover, the statute, 32 H. VIII, 
 expressly transfers conditions as well as covenants. 
 
COVENAITTS IS LEASES. 117 
 
 cases in which it occurs, namely, remaindermen after life- 
 tenants with the privileges of exercising powers ; for it is 
 evident that the decisions are the product of hard cases devel- 
 oping gradually from an innocent beginning. 
 
 The first of these cases was Whitlock's Case, 8 Co. 69b. 
 Whitlock settled his estate by fine on himself for life with 
 a remainder to his son in tail and a remainder over, reserv- 
 ing to himself, however, the power to grant leases. Then 
 he leased for a term to one Hearn, reserving rent and taking 
 covenants to himself, his heirs and assigns. The question 
 was whether the remainderman could sue on the covenants, 
 and the court held that the lease being the mere exercise of 
 a power, was created out of the original fine; and the re- 
 mainderman was but the assignee of the reversion and could 
 maintain the suit. Of course there is nothing anomalous 
 aboiit this. 
 
 The next case is Bery v. White, Sir Orlando Bridgman's 
 Judgments, 82. In this case Sir Charles Howard, possessed 
 of a fee, levied a fine to himself for life, remainder to Rob- 
 ert Howard for life, remainder to his first and other sons in 
 tail, remainder over, with power to any freeholder to make 
 leases. C. Howard and R. Howard entered and leased for 
 ninety-nine years, reserving rent to R. Howard, his heirs 
 and assigns. R. Howard died during the term and his first 
 son, the lessor of the plaintiff, entered and leased. The ques- 
 tion was on the legality of Sir R. Howard's lease. The 
 court admitted the distinction from Whitlock's Case, but said 
 that the lease, though made by a different person from the 
 original fee owner, was nevertheless a part of the original 
 fine and good; that the reservation would have been good 
 if the words, "R. H., his heirs and assigns," had been 
 omitted, and their insertion should not vitiate the lease. So 
 the owner of the freehold for the time being should sue just 
 as if the reservation had been by the first owner, as in Whit- 
 lock's Case. The court also suggested that the words "heirs 
 
118 COVEH-ANTS IN" LEASES. 
 
 and assigns" were general, but it did not rely on this. 
 While, therefore, the method of the court might be very vio- 
 lent in striking out the covenantees and making it a mere 
 open covenant which would fit in anywhere, the operation of 
 the covenant is accomplished without anomaly. 
 
 But in the next case of Hotley v. Scot, Lofft 316, the 
 anomaly begins. One Astley, seised in the right of his wife 
 of a life estate with power to make present leases, leased for 
 years, reserving rent and with a clause of re-entry to himself, 
 his heirs and assigns. He died, and the remainderman 
 sought to sue, exactly how does not appear. The lease seemed 
 to have been made under the impression that Astley was. 
 owner of the fee, and it was so worded. The court. Lord 
 Mansfield, held that "heirs and assigns" was indefinite, and 
 referred to the owner of the reversion. There is no sug- 
 gestion about the covenant being conceived as being with 
 the owner of the fee, but it was a covenant with Astley on 
 which it was expressed that heirs and assig-ns of the original 
 owner might sue merely because so intended. 
 
 Then comes Isherwood v. Oldenow, 3 M. & Sel. 382, 
 which is distinctly a case of covenant. A was seised of a fee 
 and willed to B for life, remainder to C for life, remainder 
 over, with power to any freeholder to make leases. B leased 
 for a term, reserving rent to himself, B and such other per- 
 son as should be owner of the freehold, and the lessee cove- 
 nanted with "B, his heirs and assigns," for payment to B 
 or such other person as should be owner of the freehold, to 
 repair, and other covenants. B died and C entered and 
 sued for arrears of rent and for breach of other covenants. 
 The motion was in arrest of judgment for the plaintiff. 
 Lord EUenborough recited Coke's holding in Whitlock's 
 Case, and decided that the lease dated back to the first crea- 
 tion of the power, and then said that reservations in those 
 leases were good, it was not for the court at this time to be 
 holding that the assignee of the original freehold could not 
 
COVENANTS IN LEASES. 119 
 
 sue on these covenants. "It is too mnch, therefore, for us at 
 this time of day to pronounce that all which has hitherto 
 been esteemed and done as valid has been error ; particularly 
 when we have the text of Lord Coke in Whitlock's Case to 
 the same effect. No question was made at the time upon the 
 propriety of those decisions, or of the prolatum of law which 
 we find in them." 
 
 How the court failed to grasp the point is hard to see. 
 Certainly they do not seem to have intended to hold that 
 privity of estate is not necessary to the running of the cove- 
 nant ; while in this case it cannot be held that the life-tenant 
 was making a covenant to date back as a covenant with the 
 original grantor. Indeed, that could not be, as he must in 
 that case act as agent of the original grantor ; and the agency 
 could not be, as the original grantor was already dead. But 
 Justice LeBlanc said, p. 403 : "The argument is that he 
 cannot have this action, because he must be the assignee of 
 the person of the lessor or grantor. But he is the assignee of 
 the person who, in the eye of the law, is the lessor because 
 the person empowering the tenant for life to grant the lease 
 is, in the eye of the law, the lessor. One argument against 
 this mode of considering it has been that the lessee could 
 not maintain covenant against the heirs of the devisor. But 
 I do not think that it is necessary that all the remedies 
 should be mutual as between the assignee of the lessor and 
 the lessee ; because mutuality was not so much the object of 
 the statute, as it was to give those persons who at the Com- 
 mon Law were strangers a power to enforce covenants which 
 they had not before." And Justice Bayley said: "This 
 shows that a lease to be made by tenant for life by virtue of 
 such a power entirely originates and takes its essence out of 
 the estate from which the power is derived, and inures as a 
 limitation of the use in pursuance of it. If this be so, then 
 it will follow that the covenants made with the lessee are 
 to pass to every person to whom the person creating the power 
 
120 COVEJSTANTS IN LEASES. 
 
 has afterwards given any interest. They pass to the first 
 tenant for life, then to the second tenant for life; and the 
 reason is because he has an interest derived not from the first 
 tenant for life, but from the person creating the power." 
 
 After this decision Greenaway v. Hart, 14 C. B. 340, is 
 not a surprise to us. Estates were limited by indenture to A 
 in trust for the use of B, with power to B to make leases. B 
 leased, reserving rent and with covenants and right of re- 
 entry to "B, his heirs and assigns." The report is very bad, 
 but the situation seems to have been that the court held that 
 the lease was made out of the legal estate by the o^vner of the 
 equitable estate, B. The plaintiff, then, seems to have been 
 the owner of the legal reversion. The court, Mr. Justice 
 Cresswell, after an elaborate discussion of the cases, con- 
 cluded thus, "If [B] had been tenant for life of the legal 
 estate, with remainders, there would have been abundant 
 authority for holding that the word 'assigns' meant 'assigns 
 of the settlor' and that a remainderman would have the ben- 
 efit of the proviso, although neither heir nor assign of [B]. 
 The difiiculty arises from the circumstances of his having no 
 legal estate, and therefore the right of re-entry could not 
 for any time be well reserved to him. If, however, the res- 
 ervation of rent is to be treated as general, and the covenants 
 to pay rent and repair, such as the persons entitled to the 
 reversion may take advantage of, there can be no doubt that 
 the right to re-enter for breach of them was intended to be 
 given to the same persons ; and it having been held that the 
 word assigns may be construed to mean the party entitled 
 to the reversion, the power of re-entry may be considered as 
 given to [B], who could not avail himself of it, and to the 
 owner of the reversion, who could: and the plaintiffs, now 
 filling that character, are entitled to recover." 
 
 The law is thus practically established in England, but 
 fortunately there seems to be no American decision on the 
 
COVENANTS IN LEASES. 121 
 
 subject, and it is to be hoped that the English cases will not 
 find a support in other jurisdictions. 
 
 On the operation of powers, however, the cases just dis- 
 cussed are sound precedents. Whenever a power is created 
 and its execution accomplished, of course it must relate back 
 and be read into the original instrument, so that the ap- 
 pointee is the lessee of the original creator of the power. So 
 any covenants which this creator had made, or which ran 
 with his seisin, must run to the appointee of the power who 
 could sue or be sued on them. And this of course would be 
 equally true of powers to appoint to uses, as the Statute of 
 Uses would at once operate to transfer the legal estate to the 
 appointee and so make the way easy for the covenants to run. 
 But the question presents itself in these cases how far cove- 
 nants by the appointor will run to the assigns of the ap- 
 pointee. The question was first raised by Lord St. Leonards, 
 referring especially to covenants for title. Sugden, V. & P., 
 13 ed., 579. Mr. Sugden there maintained that the ap- 
 pointor's covenant would run, and that even though the ap- 
 pointment be merely that of a use. "It is supposed by some," 
 he says, "that such covenants are merely collateral for want 
 of legal privity. But the purchaser takes the legal fee by 
 the act of the seller — the seller, therefore, cannot be deemed 
 a stranger, if that would be deemed an objection to the cove- 
 nants attaching — and it is indifferent to this question out of 
 what seisin the use of the purchaser is served, as it becomes 
 a legal estate in his hands, with which the covenants entered 
 into with him in respect of that estate may run. I am not 
 aware of even a plausible argument against this view." 
 
 While a covenant for title is the most natural covenant 
 for the appointor to make, there is no reason why it should 
 be confined to that. Any other covenant which would not 
 involve going upon the appointed land, might be made by 
 the appointor. And if the covenant could be made in case 
 of appointing fees, it could be made in appointing leases. 
 
122 COVENANTS IN LEASES. 
 
 As the appointor is not, however, in any sense a reversioner^ 
 it has nothing to do with the Statute of 32 H. VIII. There- 
 fore we must postpone for the present the consideration of 
 the running of the burdens to assignees of any lands of the 
 appointor, and are left to consider whether the benefit of the 
 covenant can run to the assignee of the appointee; that is, 
 whether the covenant can run at all. If it can, the principle 
 is thoroughgoing and it is possible to make a covenant run 
 without the passing of an estate between the original parties. 
 J\lr. Sugden says that as an estate passes by the act of the 
 appointor, that is enough. But that depends upon whether 
 a power is more than a mere irrevocable agency. True 
 enough, it survives the creator or quasi-principal, but the 
 estate conveyed is only the estate of the principal. 
 
 Compare the case of an escrow, which is a clearer form of 
 agency. ■■■ An escrow is really the converse of a power. Both 
 survive the creator. Neither the donee of the power nor 
 the escrowee holds the title to the land ; while in neither case 
 can subsequent acts of the quasi-principal avoid the creation. 
 In the case of the power the condition of completion is a 
 voluntary act of the intermediary; in the case of the escrow 
 the condition of completion is a voluntary act of the recipient 
 of the estate. In either case the intermediary is by hypoth- 
 esis a stranger to the grant between the parties. It would 
 hardly be assumed that the escrowee's covenant is anything 
 more than a personal one; yet Mr. Sugden thinks that the 
 donee of the power can make a covenant which will run. But 
 he has no cases sustaining the position, and the Real Prop- 
 erty Commissioners doubted it and advised legislation.^ In- 
 deed, in the only case on the subject, Koach v. Wadham, 6 
 East 289, the notion is almost denied. Mr. Sugden says of 
 the case, "If under a power of appointment in A, a new 
 
 1 The deed in escrow becomes a valid deed on delivery by the 
 third person after the condition is performed. Cooley's Bl. Com., 
 V. 1, n., p. 535. 
 
 2 Real Property Commission, Third Report, p. 52. 
 
COVENANTS IN LEASES. 123 
 
 power of appointment be created in B ■with whom A cove- 
 nants for title in the usual way, and B afterwards executes 
 his power in favor of C, the covenants will not run with the 
 land in his hands." Sugden, V. & P., 13 ed., p. 580. 
 
 In one case, however, there may be more safe support for 
 Mr. Sugden's position, and that is where the powers are gen- 
 eral. If the donee could exercise the power in favor of him- 
 self, then it might be said that his appointing is only an 
 appointing to himself and a conveyance to his appointee; 
 so that his covenants would run. But it is not believed that 
 that method of reasoning has been employed except in sus- 
 taining appointments to persons not within the purview of 
 the power. 
 
 Three other subjects present themselves before laying 
 aside the discussion of leases. As they can hardly be said 
 to bear any particular relation to each other, they may be 
 taken up in any succession seeming to recommend itself; so 
 they are presented in what is assumed to be their relative im- 
 portance. 
 
 The first is the relation of covenants in leases to mort- 
 gages of the reversion and of the lease. First of the rever- 
 sion. So far as the English Law is concerned. Lord Denman 
 seems to have expressed it satisfactorily and finally in Rod- 
 gers V. Humphreys, 4 A. & E. 299. He said: "If there be 
 a lease, and such lease is prior to the mortgage, the mort- 
 gagee has the same rights against the lessee and those claim- 
 ing under him that the mortgagor had, and no other remedy 
 than he had, and his remedy must be on the lease as assignee 
 of the reversion, as long as the lease is in existence, and the 
 tenant acknowledges his title ; but if the lease be subsequent 
 to the mortgage, then the mortgagee may treat the lessee and 
 all those who may be in possession as %vrong-doers, and may 
 bring an ejectment, but he cannot distrain, or bring any 
 action for the rent they have contracted to pay." Compare 
 Willis V. Eastern Trust and Banking Co., 169 U. S. 295. 
 
124 COVEITAIsrTS IN LEASES. 
 
 Of course this presupposes the English doctrine that a 
 mortgage is a passing of the legal title, and with such a law 
 the running of the covenants could not be avoided, although 
 the mortgagor remaining in possession would get the real 
 benefit of many kinds of covenants. In America, however, 
 the law is very much more fair ; for the ordinary American 
 law is that a mortgage is but a lien, though it may be dif- 
 ficult to show how such a notion can be sustained upon Com- 
 mon law principles. If the mortgagor still retains the title, 
 then there is no difficulty in holding him to the benefits and 
 burdens, Trustees & c. v. Streeter, 64 N. H. 106; while the 
 mortgagee is excluded from both. Johnson v. Sherman, 15 
 Cal. 287; Davidson v. Cox, 11 ISTeb. 250. But see contra 
 Mygatt V. Coe, 142 IST. Y. 78, that the mortgagee may claim 
 benefits. 
 
 If the court of any state must hold that the mortgage 
 passes title, and hence that the covenants pass on to the mort- 
 gagee, it may be suggested that the mortgagor in possession 
 may still be reached by the process employed to reach the 
 assignee where the covenantor has been subjected to a judg- 
 ment on the covenant. The land is always ultimately bound 
 to sustain the liability, and the possessor must save harm- 
 less any one whom the law has subjected to a burden. ISTo 
 decision has been presented, however, which involves this 
 notion. 
 
 Mortgages of the lease have occasioned a good deal of dif- 
 ficulty, although the law as finally settled develops the same 
 difference between England and America that exists in mort- 
 gages of the reversion. As a lease for years is merely a 
 chattel, practically dependent upon the possession, it was 
 at first conceived in England that a mortgage of such a term 
 need not convey the legal title unless the mortgagee assumed 
 possession ; so Lord Mansfield in Eaton v. Jacques, 2 Doug. 
 455, held that the burdens of the lessee's covenants would not 
 run to a mortgagee unless in possession. But for the trans- 
 
COVENAISTTS IS LEASES. 125 
 
 fer of title to a lease, entry is not necessary, Co. Lit. 46b, 
 and since therefore a mortgagee out of possession might have 
 the legal title, it appeared to later courts that he must have 
 it; so it was later held that he also succeeded to the cove- 
 nants, and Williams v. Bosenquet, 1 B. & B. 238, overruled 
 Eaton V. Jacques and established the English Law. 
 
 In fact the mortgage of the term usually transfers the 
 title in England, because otherwise the mortgagee would 
 have no security but an equitable charge on the term, not 
 binding on a subsequent purchaser of the term without no- 
 tice; and for that reason, of cotirse, the mortgagee prefers 
 to have the legal title even though it might be attended with 
 the burdens of covenants. In America, however, the general 
 conception of a mortgage, by the aid of records, gives the 
 mortgagee of the term all his rights as mortgagee without 
 taking the legal title which remains in the mortgagor until 
 the mortgagee takes possession usual upon his acquiring 
 title. Therefore in America a mortgagee of a term out of 
 possession does not get the burdens or benefits of the cove- 
 nants. Astor V. Miller, 2 Paige 68 ; Astor v. Hoyt, 5 Wend. 
 603 ; McMurphy v. Minot, 4 IST. H. 251 ; McKee v. Angel- 
 rodt, 16 Mo. 283 ; Tallman v. Briscoe, 65 Barb. 369 ; Mygatt 
 V. Coe, 142 ]Sr. Y. TS ; Calvert v. Bradley, 16 How. 580.i 
 
 1 In Mygatt v. Coe. 142 N. Y. 78, Pinch, J., for the court, said: 
 "Under the old system which regarded the mortgage as transferring 
 to the mortgagee the entire legal estate, leaving in the mortgagor 
 only an equity which courts of law could not recognize, it was neces- 
 sary to say and was said that the covenants running with the land 
 followed the legal estate into the hands of the mortgagee, where 
 it remained entire and complete, and the grantees of the equity hav- 
 ing no legal estate could have no right to the covenants which 
 already belonged to another. It was so held in Mayor of Carlisle v. 
 Blamire, 8 Bast 487, but the injustice of the doctrine drew upon the 
 ingenuity of equity to supply a remedy, and where the grantee 
 holding covenants had executed a mortgage, and thereafter having 
 been evicted from the premises by a paramount title, his grantor 
 and covenantor settled with the mortgagee by paying the mortgage 
 in full discharge of the covenants, and so assuming to cancel them. 
 
126 COVENANTS IN LEASES. 
 
 The second problem presented is the application to cove- 
 nant of the law of title by estoppel. The learned editor of 
 Smith's Leading Cases (notes to Spencer's Case, 8th edition, 
 p. 209), says about this: "When the question arises on the 
 covenants contained in a lease, the peculiar estoppel which 
 exists between landlord and tenant will preclude a denial of 
 the title of the lessor, not only as between the original par- 
 ties, but where third persons are in question. The law was 
 so held in Palmer v. Ekins, 2 Lord Kaymond, 1550, which 
 is sustained in the language of Baron Parke in Goldsworth 
 V. Knights, 11 M. & W. 337, and Sturgeon v. Wingfield, 15 
 idem 221, although these cases were decided on other 
 
 the grantee was allowed by a decree in equity to sue the covenantor 
 at law, and the latter was restrained from setting up as a defense 
 in any manner the deed or deeds of mortgage which had diverted the 
 covenants from the main line of succession. Thornton v. Court, 3 
 De G. M. & G. 293. By this circuitous route the just result was 
 reached of dividing the benefit of the covenants between mortgagee 
 and owner of the equity of redemption according to their respective 
 rights, and the same just distribution is effected under our system 
 by a different process. We regard the mortgagor as retaining the 
 legal estate, and the mortgagee as having a lien upon it for his 
 security. The covenants, therefore, run to both mortgagee and 
 grantee of mortgagor in proportion to their respective rights, and 
 the covenant is divisible accordingly. A very clear exposition of 
 this doctrine will be found in White v. Whitney, 3 Met. 87, and it 
 has been asserted in Town v. Needham, 3 Paige 546, and Andrews v. 
 Wolcott, 16 Barb. 25." 
 
 Finch, J., did not properly state the position of the court in Thorn- 
 ton V. Court, however. There, as the report of the case clearly 
 shows, the covenantor went to the mortgagee and by paying him 
 and taking a release, sought to cut out the plaintiff. This the court 
 would not allow, and charged the covenantor with the plaintiff's 
 loss; as but for his act in taking the release the mortgagee would 
 have reconveyed with the benefits to the mortgagor, the plaintiff. 
 It is inexplicable how the learned judge should have misconstrued 
 the court in Thornton v. Court to be devising a scheme to avoid 
 the rules of law when it was merely preventing an attempt at fraud. 
 As appears from Thornton v. Court, in England the covenants are 
 returned to the mortgagor on his paying the mortgage debt by simply 
 transferring to him the legal title to the lease. 
 
COVENANTS IN LEASES. 127 
 
 groTinds. And the question would seem to have been set at 
 rest in England by the recent decision of Cuthbertson v. Ir- 
 ving, 4 H. & N. 742, Y57, where the court adopted the rule 
 laid down by Sergeant "Williams in the notes to Walton v. 
 Waterhouse, 2 Saund. 418, that while the lessee remains in 
 possession under the lease, he cannot set up any defense in 
 the nature of a plea of nil habuit in tenementis against the 
 lessor or those claiming under him by assignment, who was 
 said to have as much right to the benefit of the estoppel as if 
 they were parties to the letting, and not merely assigns. 
 There can be no doubt of the wisdom and propriety of this 
 decision, because the estoppel of a lease really grows out of 
 an implied contract that the lessee shall be bound until ac- 
 tually or constructively evicted, whether the lessor is or is 
 not the owner of the land, on the faith of which [contract ?] 
 the landlord gives, and the tenant obtains possession, and 
 which would be worth comparatively little if it could not be 
 transferred to a purchaser of the reversion. It was, how- 
 ever, concluded in Cuthbertson v. Irving on the authority 
 of Pargeter v. Harris, 7 Q. B. 708, that if the true state of 
 the case appeared on the face of the lease, there would be no 
 estoppel, and the lessee would be free to rely on the lessor's 
 want of title as an answer to a suit for the rent."-' 
 
 1 That an estoppel runs to assignees of the reversion see Co. Lit. 
 352; 4 Co. 53. 
 
 It is auite clear that Whltton v. Peacock, 2 Bingham N. C. 411, 
 is not a case to the contrary, although Baron Parke's explanation 
 of the case in Goldsworth v. Knights (supra) may not have been 
 that of the court. The facts, summarized by Baron Parte, are as 
 follows: "A copy-holder devised his estate to another, without 
 surrendering to the use of his will. The devisee of the devisee 
 * * * demised part of the copyhold by deed, and the lessee cove- 
 nanted to pay rent, and assigned the lease. The heir-at-law of the 
 devisor afterwards surrendered to the use of the second devisee, who 
 afterwards demised another part of the copyhold to the same lessee, 
 and Instead of granting a fresh lease to the lessor [lessee?] of the 
 part before demised, took a covenant from him to perform the 
 covenants in that lease. The lessor afterwards surrendered the 
 
128 covES'AjsrTS in leases. 
 
 Where the reversion by estoppel is assigned after the lease 
 has been made, of course the assignee is bound by the cove- 
 nants, as good title on receipt by the lessor, would go by first 
 right to the lessee in possession, and the covenants at once 
 being attached would pass on to the person who was assignee 
 of the reversion. Trevivan v. Lawrence, 1 Salt. 276. But 
 the diiEcult case arises where the estoppel is involved in the 
 passing of title to the reversion. Suppose A pretends to sell 
 land to B, and conveys a pretended title, then A receives a 
 good title, and at once leases to C with covenants ; is B 
 bound by the covenants of A ? and can he sue C on covenants 
 in the lease? Or is B bound by no covenants although the 
 lease is good ? Or is the lease bad so that there are no rights 
 or liabilities between B and C at all ? For the present the 
 registration is dispensed with. There are three positions. 
 If the covenants are binding between B and C, then it must 
 be because A on receiving good title became constructive 
 trustee for B, and having title leases to C, so as to give pos- 
 session rightfully. Then A as the proper holder, at least of 
 the reversion, would have a right to demand a subseqiient 
 conveyance, and as such would be assignee of the reversion, 
 and the covenants would operate. The actual subsequent 
 conveyance to B would not be necessary, however, as it had 
 
 copyhold to another; and the question was whether the surrenderee 
 could maintain an action on these covenants against the assignee 
 of the lessee." 
 
 The decision gives no reasons for holding that he cannot; but 
 Baron Parke says there was a clear reason. "The reversion hy es- 
 toppel on the first lease was not a copyhold transferrable by sur- 
 render and admittance." By referring to the arguments of counsel 
 in Whitton v. Peacock, however, it is apparent that this was not the 
 claim of the defense, but that it rested upon a question of fact 
 whether the tenants did not hold in a way that would prevent them, 
 from pleading nil habuit to the statement that the lessor had title 
 at the time he made the lease — an averment which they claimed the 
 plaintiff must make. The matter is immaterial for American cases, 
 as we have no copyholds, and the main doctrine of Palmer v. Elkins 
 Is not refuted. 
 
COVENAK-TS IN LEASES. 129 
 
 previously been attempted, so the law might consider that 
 done. For this position of the covenants no case has pre- 
 sented itself. The more likely solution, however, would be 
 the second. The land would fall into A's hands as a trust,, 
 and the lease to C would be good, while the reversion would 
 run to B by estoppel; but the covenants being made with A 
 after the actual deed on which the estoppel rests, the parties 
 would be strangers, and covenants would not run between 
 B and C. Compare Webb v. Russell, 3 T. E. 393. While 
 there may be troubles in sustaining the reasoning, this would 
 be the conclusion fairest to the parties if the lease to C is to 
 be considered good.* 
 
 By the third and last supposition, however, the question 
 would turn entirely on the right of A to make the lease. 
 And if estoppel is to operate at all, it would seem that the 
 conclusion must be that the lease is entirely bad; and so all 
 covenants which it contains would be ineffective on the land. 
 The notion of title inuring by estoppel seems to have had 
 nothing to do with the equitable notion of a trust, although 
 both may have originated in the idea that what should be 
 done shall be considered done. The old estoppel was one 
 of the inexplicable anomalies of the Common Law. The 
 title related back and confirmed the earlier conveyance, very 
 much like the doctrine of ratification in the law of agency. 
 Weale v. Lower, PoUexfen 54; White v. Patton, 24 Pick,. 
 324 ; Knight v. Thayer, 125 Mass. 25 ; McCusker v. McEvey,, 
 9 E. I. 528. See 6 Gray Cases Prop. 586. This, then, com- 
 pletely shuts out the subsequent conveyances and anything 
 that hinges on them; and such, it is submitted, would be- 
 the probable conclusion in case of covenants under the pres- 
 ent law. 
 
 The registration laws have been considered ineffective 
 
 1 This would be likely to be tbe law in Pa., where the lease would 
 be good. Calder v. Chapman, 52 Pa. 359. Cf. 6 Gray Cases Prop., 
 p. 489. 
 
130 COVElSrANTS IN LEASES. 
 
 upon the conclusion in the Pennsylvania cases, and it is 
 likely that where those cases are followed these laws would 
 be again passed over. 
 
 It will of course be remembered that where there is no 
 estoppel there can be nothing to hold a covenantor to a suc- 
 cessor of the covenantee. So where a tenant for life leases 
 for a long term, or for another's life, there may be an estoppel 
 during the life of the lessor, but not against his heir ; and his 
 heir cannot bring covenant. 2 Wm. Saunders 418, n. 1 to 
 Walton V. Waterhouse. 
 
 The last subject to consider is the relation of covenants to 
 the law of merger of estates. 
 
 As the covenant is incident to the estate, an assignment 
 which gives the assignee the term together with the reversion 
 destroys the estate to which the covenant attaches, and the 
 covenant itself ceases at once. The reversion must be the 
 immediate reversion, however, for otherwise there can be 
 no merger. So where a sub-lessee assigned his holding to 
 the original lessor there was no extinction of the immediate 
 lessee's claims and his rights on a covenant for renewal still 
 survived. Piggot v. Mason, 1 Paige 412. 
 
 In Rochester Lodge v. Graham, 65 Minn. 457, A and B, 
 life-tenant and reversioner respectively in a piece of land, 
 joined in conveying to C the third story of a building upon 
 the land, B the reversioner covenanting with C to repair the 
 roof when necessary. A and B later united in conveying 
 their remaining interest in the property to the defendant. 
 The roof having fallen into disrepair, C sought to have the 
 cost charged against the land in the defendant's hands. But 
 the court held that the defendant should not be charged at 
 present, for so long as A lived he was enjoying A's life es- 
 tate, and B's covenant ran only with the reversion; so an 
 attempt at apportionment was made. 
 
 It would seem that the life estate merged in the reversion 
 and was lost; and as the covenant had been attached to B's 
 
COVENANTS IN LEASES. 131 
 
 free interest whicli still survived, changing from an estate in 
 reversion to an estate in possession, the defendant should 
 have been held to the covenant. 
 
 Of course if a right of action has accrued, though it be on 
 a covenant to pay rent in advance for a use of a lease which 
 afterwards merges, that particular right of action is not lost. 
 Townsend v. Eead, 13 Daly 198. 
 
 It is unnecessary to rehearse the law of merger, as it is 
 sufficient to remember that the doctrine of extinction of 
 covenants is thorough-going; and whenever an estate is 
 merged so as to extinguish the estate to which the covenant 
 is attached, assignees of the covenantee or covenantor can 
 no longer enforce or be subject to the covenant. Thus in 
 Webb V. Eussell, 3 T. E. 393, E. Webb, mortgagee of a term 
 for ninety-nine years held by one Stokes, leased with him to 
 the defendant for eleven years, the defendant covenanting. 
 Webb died and the plaintiff, his devisee and executrix, took 
 the mortgage. Later Stokes became possessed of the fee and 
 released it to the plaintiff who sued the defendant on his 
 covenants. But Lord Kenyon held that the estate for years, 
 having merged in the fee, the covenants, being incident to the 
 particular estate, were lost to the plaintiff.^ 
 
 There is no reason to believe that the original parties lose 
 their actions, however, and so here, however much the es- 
 tates merged, the plaintiff should have still had her right of 
 action as executrix of the original covenantee for causes 
 which accrued during his lifetime. 
 
 As the covenants attached to a piece of land are severable, 
 so that assignees of part of the reversion can enforce them, it 
 is similarly held that merger of part of the reversion de- 
 stroys the covenants only so far as affects the portion of the 
 
 1 It was noted that if tlie plaintiff had not claimed to hold both 
 estates in the same capacity she would not have been precluded, as 
 in fact there was no merger of estates held as executrix and those 
 held in her own name. This of course is immaterial, so far as the 
 doctrine is concerned. 
 
132 COVENAISrTS IK LEASES. 
 
 estate merged. So where the reversioner assigned to three 
 joint tenants, one of whom was a joint tenant with another 
 in the lease with covenants, whether one-third or one-sixtH. 
 only of the reversion is merged, the other two tenants in the 
 reversion can sue for a failure to repair the whole of the 
 premises, although their actual judgment will be for but two- 
 thirds of the adjudged damages. Baddeley v. Vigurs, 4 E. 
 & B. 71. 
 
 So far as extinguishment of the covenant is concerned, it 
 is noted that the case did not decide that a covenant would 
 not be extinguished where one of the persons to whom the 
 burden ran was at the same time one of those to whom the 
 benefit ran, for they say that in this case the obligation did 
 not arise until after the common person had died.-' 
 
 A clearer case is Lord Dynevor v. Tennant, 32 Ch. D. 420, 
 affirmed by the Court of Appeal in 33 Ch. D. 420, and by 
 the House of Lords in 13 A. C. 279. A lease was made to 
 make a canal, the lessors, three in number, reserving the 
 right to bridge the intended canal. The lessors afterward 
 divided their holding, one taking the land from which a par- 
 ticular passage crossed the canal. This he sold to the lessee ; 
 and it was held that whether the reservation was an easement 
 or a covenant, the estate of the lessee in that part of the 
 reversion had merged, and all rights to cross at that place 
 had gone. 
 
 A rather surprising decision was made, however, in Bai- 
 ley V. Richardson, 66 Cal. 416. A lessee sublet with cove- 
 nants and then assigned or surrendered his lease to his lessor. 
 The lessor received and collected from the sublessee the rents 
 reserved in the sublease. The court held that no merger was 
 brought about, as the lessor came in as an assignee of a re- 
 version, and not as owaer of the fee; and so was liable on 
 the lessee's covenants to the sublessee. 
 
 1 On the law of merger, cf. Lord Thre'r v. Barton, Moore 94. 
 And see fully in Preston on Conveyancing, Vol. 3. 
 
COVENANTS IN LEASES. 133 
 
 There appears no difference between this and the assign- 
 ment by a life-tenant in reversion to an owner of the fee, 
 as was the case in Webb v. Kussell; and that merger and 
 the extinction of covenants is inevitable in all such cases, is 
 unquestioned law. Indeed the English Legislature evidently 
 realized that extinction of covenants would not be confined 
 to cases like Webb v. Eussell, for they used very broad terms 
 to relieve against its injustice. Compare Mr. Sugden's state- 
 ment of the statute, Vend, and Pur., 14 ed., p. 583 : 
 "Where the reversion expectant upon a lease shall be surren- 
 dered or merged, the estate which shall for the time being 
 confer, as against the tenant under the same lease, the next 
 vested right shall, to the extent and for the purpose of pre- 
 serving such incidents to and obligations on the same rever- 
 sion as but for the surrender or merger thereof would have 
 subsisted, be deemed the reversion expectant upon the same 
 lease." 8 &. 9 Vict, c. 106, §9 ; see 7 & 8 Vict, c. 76, §9. 
 
 'No such American statutes have been presented; but as 
 Bailey v. Richardson can hardly be followed under the Com- 
 m.on Law in other states, the subject would seem one emi- 
 nently needful of statutory revision. 
 
 In Spencer v. Austin, 38 Vt. 258, A and B, tenants in 
 common, leased to C, reserving certain rights; B then con- 
 veyed his interest to D, and C conveyed half his lease to D. 
 The court in equity held that there was no merger in D to 
 ■defeat D's rights under the lease unless D had intended a 
 merger on receiving the conveyances. It would seem, how- 
 ever, that this decision was due to a misconception of the 
 English Law in Forbes v. Moffat, 18 Vesey 384. 
 
CHAPTEK VII. 
 
 THE ETTSTNING OF BENEFITS AND BTJEDEITS WITH PEE ESTATES 
 IN MODERN LAW. 
 
 Kecurring to the line of investigation interrupted by the 
 chapter on covenants in leases, it is now necessary to continue 
 the main question to what extent covenants of any sort other 
 than covenants for title have been allowed to run with land 
 in modern times. 
 
 For this it is best to follow the customary division of the 
 question, first as to the benefits of covenants, and secondly as 
 to the burdens of covenants^ That is to say, first, whether 
 the successor of the covenantee can enforce the covenant in 
 his own name against the covenantor ; and secondly, whether 
 the covenantee or his successor can enforce the covenant 
 against the successor of the covenantor. 
 
 The object of this chapter is entirely to work out an intel- 
 ligent state of the law, as well giving weight to the de- 
 cisions as bearing in mind what from the history of covenants 
 would naturally be expected to be the present law; and it 
 would seem that we should expect both the benefits and 
 burdens of covenants to run provided they are properly cre- 
 ated and are of such a nature as to assimilate themselves to 
 
 the crude notion of "concerning the land." 
 
 134 
 
THE EUNNING OF BENEFITS AND BUEDENS 135 
 
 Benefits of Covenants. — The general notion has been 
 long indorsed that the successors of covenantees can always 
 have the benefit of covenants, and that they can sue in their 
 own name at law. Exactly how this happened to be so gener- 
 ally agreed upon, it is hard to tell, as every other question of 
 covenants has become so entangled. The probable explana- 
 tion is that in the running of benefits the spirit of the original 
 use of the covenant was so apparent that its doubt never 
 seemed to appeal to the judges. It was more nearly approx- 
 imated to the law of warranty as that had been developed 
 in the covenant for title; which is in its essence the mere 
 running of a benefit. And as there was but a slight step 
 from one benefit to another, it was at once granted that the 
 .benefit of any covenant concerning the land might readily 
 run at law. It is believed, therefore, that these benefits were 
 accepted from a mediate reasoning from covenants for title 
 which in turn rested on charter warranty, that in turn com- 
 ing from the old warranty as a matter of damages rather 
 than a matter of kind. If instead of reasoning thus, the 
 judges had looked back and had seen that benefits ran from 
 a direct similarity to old warranty, as is evident from their 
 origin before the full development of title covenants, they 
 would hardly have come to the conclusion that benefits alone 
 can run. It is not, however, the first case in the law where 
 the real reason has passed into oblivion and a thinking but 
 incautious period has invented reasons which gave a bias to 
 the law. 
 
 Strangely enough, however, while this running of benefits 
 has been accepted, there is not, it is thought, a single Eng- 
 lish decision that such a benefit will run until comparatively 
 late days. There is no lack of them in America, it is true, 
 but at the same time the American courts were free in hold- 
 ing that burdens of covenants would run as well. The editor 
 
136 THE EUNNING OF BENEFITS AITD BUBDENS 
 
 of Smith's Leading Cases asserts as his conclusion that bene- 
 fits have been established as running, but he cites no cases 
 but cases of covenants for title and cases of leases, from the 
 cases in ISTorman French to the rise of the equitable doctrine 
 of Tulk V. Moxhay.^ A possible express indorsement of 
 the notion may be found in the case of Sharp v. Waterhouse, 
 7 E. & B. 816, where it was assumed that the devisee of land 
 benefited by a covenant in an indenture which granted an 
 easement might sue for the benefits of the covenant. But the 
 real decision on the facts was only that an apparent addi- 
 tional covenant was not intended to be a covenant, and indeed 
 this ease has been entirely overlooked in discussions upon 
 the subject. Moreover, the grant was only an easement, and 
 the running of covenants with easements is in great qtiestion 
 in England (see post, Ch. IX, sec. 3) ; so that Sharp v. 
 Waterhouse will hardly be a safe example of the law. Lord 
 Eldon even went so far as to question whether a benefit could 
 ever run in deciding Collins v. Plumb, 16 Vesey 434, which 
 he decided on other grounds ; and Lord Justice Lindley ques- 
 tioned whether any benefit could run in Austerberry v. Old- 
 ham, 29 Ch. D. 750. 
 
 But no one now denies that the benefit of a covenant does 
 run with the land. There is an equitable indorsement of it 
 in the decision in Barclay v. Eaine, 1 Sim. & Stu. 449 ; and 
 it has been frequently indorsed in dicta at law and in equity, 
 as by Lord Abinger in Raymond v. Eitch, 5 Tyr, 985, and 
 by Lord Justice Cotton in Austerberry v. Oldham, 29 Ch. D. 
 750, although other members of the court in that case 
 questioned it in connection with the decision that the burden 
 of a covenant would not run. 
 
 In America there is abundant authority that the benefit 
 of covenants runs with the land,^ and so far as has appeared 
 there is no decision that rejects it. 
 
 1 2 Phill. 774, see post, Chapter XI. 
 
 2 Cinti. V. Springer, 23 Wkly. Bui. 250; Springer v. Phillips, 71 Pa. 
 
WITH FEE ESTATES IN" MODEEN LAW. 137 
 
 In at least two American cases, however, Lydick v. B. & 
 O. Ey., 17 West Va. 427, and Carson v. Percy, 57 Miss. 97, 
 the reason given for the running of benefits is different from 
 the commonly accepted historical one. It is set out that 
 the covenant runs because it was part of the consideration 
 contracted for in the acceptance of the land. In short, that 
 it requires notice to the assignee of the land that it has the 
 benefit of covenants in order to allow him to enforce them. 
 It can hardly be said that these decisions were intended to 
 rest upon this reason, but if this theory is to be held the true 
 one it is at least very far-reaching. If one grant were made 
 without the express mention of the covenant, then the bene- 
 fit of the covenant would be forever lost, and no subsequent 
 mention of it would avail, as it would then form no part 
 ■of the consideration for the purchase. ISTor could that par- 
 ticular covenant be afterward revived, as the possessor of 
 the land once without the covenant, could never give to the 
 grantee from him more than as grantor he held; and the 
 connection with the original covenantor and his burdened 
 land would no longer exist for a new covenant. Moreover, 
 
 60; Dunbar T. Jumper, 2 Yates 74; Dailey v. Beck, 4 Clark 58; Clark 
 V. Martin, 49 Pa. 289; Muzzarelli v. Hulshizer, 163 Pa. 643; Ry. Co. 
 V. Ry. Co., 171 Pa. 284; Green v. Crelghton, 7 R. I. 1; Weill v. Bald- 
 ■win, 64 Cal. 476; Raby v. Reeves, 112 N. C. 688; Maine v. Cumston, 
 98 Mass. 317; Cutter v. Wms., 3 Allen 196; Carson v. Percy, 57 Miss. 
 97; Countryman v. Deck, 13 Abb. N. C. 110; Avery v. Ry., 106 N. Y. 
 142; Stewart v. Aldricb, 8 Hun. 241; Nye v. Hoyle, 120 N. Y. 195; 
 Graves v. Deterling, 120 N. Y. 447; Mott v. Oppenheimer, 135 N. Y. 
 312; Dey v. Prentice, 90 Hun. 27; Wooliscroft v. Norton, 15 Wise. 
 198; Snyder's License, 2 Pa. Dist. Ct. 785; Bean v. Stoneman, 104 
 Cal. 49; Ry. v. Reno, 22 111. App. 420; Sterling Co. v. Williams, 
 66 111. 393; Fitch v. Johnson, 104 111. Ill; Hazlett v. Sinclair, 76 
 Ind. 488; Peden v. Ry., 78 la. 131; Curtiss v. White, Clark Ch. 389; 
 Watertown v. Cowen, 4 Paige 510; Dexter v. Beard, 7 N. Y. Supp. 
 11; King v. Wright, 155 Mass. 444; Shaber v. Water Co., 30 Minn. 
 179; Hamm v. Same, ibid. 185; Guentzer v. Juch, 4 N. Y. Supp. 39; 
 Lydick v. B. & 0. Ry., 17 West Va. 427; CI, Scott v. Lunt, 7 Pet. 596; 
 Morse v. Aldrich, 19 Pick. 449; Savage v. Mason, 3 Gush. 500; and 
 cf. semble contra, Barron v. Richard, 3 Edw. Ch. 96. 
 
138 THE EUNNING OF BENEFITS AND BURDENS 
 
 if notice is important it becomes a difficult question what 
 shall constitute notice. Must it be in writing ? Must it be 
 in the deed ? Must it be in express words ? or shall it pass 
 with "all easements, appurtenances, &c." ? If this last is 
 sufficient, which is generally deemed sufficient to pass other 
 claims, then must it not be proven that the grantee under- 
 stood it to mean the benefit of covenants ? else the covenant 
 would not have been a consideration of the purchase. 
 
 It will be noted that this difficulty is not involved in war- 
 ranty or covenants for title, as the grantee may well be pre- 
 sumed to contract only for a good title. The difficulty is 
 fundamental, but it is hardly to be believed that the courts 
 would attempt to enforce such a notion of the running of 
 covenants, as well for the difficulty of proof in action as for 
 the difficulty of ascertaining whether there is a cloud upon 
 titles on the burden side of the land, (jt would seem safe to 
 presume that where the covenant is properly created and of 
 the nature to run with the land, its benefit can run until it 
 has been released or for other reasons it becomes unenforce- 
 able by the passing of time^ (See post, p. 171.) 
 
 But before leaving the subject of benefits, which have 
 been thus far considered from the standpoint of rights rec- 
 ognizable under the Common Law, the attention of the reader 
 must be called to certain conceivable views of the running of 
 benefits which, while equitable benefits in fact, have been 
 offered as explaining many cases at Common Law. So far 
 as the principles are exclusively equities, they will be con- 
 sidered in a later chapter, but to the extent that they are en- 
 forced by law, they must be noted here. And it might be 
 said, moreover, that on this theory the benefit may run be- 
 cause its running was contracted for, although the assignee 
 to whom it runs does not know of it when he buys from the 
 covenantee. This is not at variance with the reasoning just 
 above, that it is impossible for a covenant to run where there 
 is no notice, for it is a question of a trust, and for the benefit 
 
"WITH FEE ESTATES IN" MODEEH" LAW. 139 
 
 of a trust to run, references need not here be given that no- 
 tice is imnecessary. 
 
 In Morse v. Aldrich, 19 Pick. 449, there had been a grant 
 bet"ween the plaintiff's and the defendant's ancestors, con- 
 taining a covenant that the s"uccessors of the vendee might 
 periodically drain a pond on the land of the grantor for the 
 deposit of mud on the bottom, available as a fertilizer. The 
 defendant had notice of the covenant, and the plaintiff en- 
 forced his right by covenant at Common La"w. The sug- 
 gestion has been made that this right to the mud "was a 
 tangible right for "which the original vendee contracted, and 
 being conceivable as property, — a profit, — it may be ab- 
 stracted from the land of the grantor and, though incom- 
 pletely granted, should be regarded by the grantor and his 
 assig"ns as an equitable charge for the grantee and his as- 
 signs, thus going to them "whether they have notice or not. 
 The grantees and their assigns, then, having this equity, sue 
 for it in la"w under covenant, either as beneficiaries to the 
 original covenant, in states like ISTevs^ York, "where bene- 
 ficiaries may sue on contracts, or by the authority of Paken- 
 ham's Case, Y. B. 42 E. Ill, 3, "which enabled the o"wner of 
 an incorporeal hereditament to sue in covenant to enforce his 
 rights, as "was discussed in Chapter II. 
 
 The "whole theory is very involved, and apart from its ar- 
 tificiality, seems to have several grave difiiculties. It was 
 not taken by the court in Morse v. Aldrich, but is suggested 
 to explain that case and the party-wall cases to be discussed 
 later. 
 
 In the first place, it can only apply to those covenants 
 which amount to equitable incorporeal hereditaments. The 
 right must be a recognizable subject of property; for it 
 must be a charge upon the grantor. This is enough to show 
 that it does not explain all the cases. Then to bring the 
 right into a law court, it requires one of two methods, either 
 allowing beneficiaries on a covenant to sue in their o"wn 
 
140 THE RUNNING OF BENEFITS AND BUEDENS 
 
 names, a right by no means common in older jurisdictions, 
 or the enforcement of incorporeal hereditaments by cove- 
 nant, a very doubtful right itself, though it may have been 
 allowed at old Common Law. 
 
 Of course, as between assignees of the grantee and the 
 original grantor, if beneficiaries on contracts can sue, all 
 cases of the running of benefits are explained without any 
 charge; but that solution cannot explain English cases, as 
 in England beneficiaries cannot sue on contracts to which 
 they are not parties, and it does not explain beneficiaries' 
 rights against assignees of the grantor, as assignees of the 
 burdened property are complete strangers to the contract. 
 But however feasible this explanation of charges and the 
 suit in covenant for incorporeal rights may be for the sug- 
 gested cases, it seems unsatisfactory historically from the 
 other cases that have come down to us. Another opportunity 
 to consider it, however, will present itself in the investiga- 
 tion of the running of burdens, and in the collateral investi- 
 gation of rights in equity. 
 
 II. 
 
 Burdens of Covenants. — We come now to the mooted 
 question whether the burden of a covenant can be made to run 
 with the land to the assignee of the covenantor. From the 
 review of the cases (supra) down to the Statute of 32 Henry 
 VIII, 34, there would seem to be every reason to suppose 
 that burdens can run, and that they were made to run without 
 any hesitancy on the part of the early lawyers. Erom that 
 statute to the time of Lord Coke's reports there appears noth- 
 ing to change this view; and since Lord Coke's time the 
 doctrine that they cannot run seems to rest largely upon 
 rambling discussions in late cases. Without careful analysis 
 the judges have frequently begun their discussions by saying 
 that it seems fairly clear that before this statute covenants 
 ran with the lease but not with the reversion, and that the 
 
"WITH FEE ESTATES IN MODEEW LAW. lili 
 
 burden of a covenant would not run at Common Law.^ 
 Though the counsel in arguing in Webb v. Russell, 3 T. R, 
 393, went so far as to say that the Statute of 32 H. VIII 
 contains a mistake in its preamble, and by transposition was, 
 meant to state that covenants would run with the land, yet 
 whatever grounds that suggestion may have, the court paid 
 no attention to the suggestion, but followed the idea that 
 covenants will not run with reversions. 
 
 For the denial of the running of burdens, Brewster v. - 
 Kidgill has been thought to furnish a clear footing. The 
 case has been reported in many places and the exact holding- 
 is in much doubt; but the dicta of Lord Holt, one of the 
 judges, are fairly clear that he thought the burden of a cove- 
 nant should not run.^ The action was one of case for a rent 
 granted out of an estate of the defendant's predecessor who 
 had covenanted to pay the rent, free of all taxes, etc., upon 
 either the rent or the charged land. The defendant sought to 
 deduct a tax imposed by Parliament, and the court held that 
 he could not do so. They also held that the rent bound 
 the land, though whether as a grant or a covenant is not 
 clear. Holt said, "If this covenant should charge the land, 
 it would be higher than a warrantia chartae, which only 
 affects the land from the judgment therein given;" but ex- 
 actly what he meant by this is difficult to tell. It is true 
 that Littleton says that warrantia chartae binds only from 
 judgment given; but it is conceived that Plolt's comparison 
 is imperfectly made. Warranty may well have bound the 
 land in one sense, and yet have left the warrantee a certain 
 difficulty in reaching the lands so bound. The land was al- 
 ways alienable, of course, so long as there was not a judg- 
 ment against it; and if before that time the land had been 
 
 1 Serg. Wms.' note to Thursby v. Plant, 1 Wms. Saund., p. 
 240, n. 3. 
 
 2 The case is reported in 5 Mod. 369, 12 Mod. 166, 1 L. Raym. 317, 
 1 Salk. 340, Carth. 438, Holt 169, 669, Coml). 424, 466. 
 
142 THE KUlTimfG OF BENEFITS AND BtTEDENS 
 
 aliened the warrantee would have had his action for nothing, 
 as he would have to bring another action against the then 
 owner of the land to have his judgment executed. The 
 method of enforcing the warranty was always a personal 
 action ; and in that light there is no difference between this 
 and the working of covenants which bind the then owner 
 of the land, for when he aliens he is free, unless, of course, 
 he is the first covenantor, and a party himself to the cove- 
 nant. 
 
 But Holt's position rapidly gained support, and Lord Ken- 
 yon, in his decision in Webb v. Eussell (supra), notwith- 
 standing the argument of counsel, sustained the view that the 
 burden of the covenant would not run with the grant of 
 land. 
 
 But this, too, was merely dictum, and the question was 
 much longer to remain debatable in the English courts, for 
 grave doubts still entertained on this subject found occasion 
 for early expression in the celebrated case of Koach v. Wad- 
 ham, 6 East 289. In that case there was a conveyance to 
 one Coates to the use of such as Watts should appoint by deed 
 or will, and in default of appointment, to Watts in fee, re- 
 serving a rent which Watts covenanted for himself and as- 
 signs to pay. Watts then by deed appointed to one Wadham, 
 all joining, and Wadham covenanting to pay the rent. Wad- 
 ham willed to the defendant, whom the plaintiff sues in 
 covenant for the rent. Therefore the question was whether 
 the defendant took under the power, in which case he would 
 not have been privy to Watts' covenant, or under a grant 
 from Watts in default of appointment, in which case he 
 would have been privy to the covenant. That question Lord 
 Ellenborough, who delivered the opinion, admitted was de- 
 pendent upon whether Watts had intended an appointment or 
 a grant ; and taking all the circumstances into consideration, 
 Lord Ellenborough concluded that Watts intended an ap- 
 
■WITH PEE ESTATES IN MODEEKT LAW. 143 
 
 pointment, and so discharged the rule without discussing 
 whether the action of covenant would have lain or not. 
 
 Mr. Sugden, in his "Vendors and Purchasers," thinks this 
 ■decision may be taken as assuming that the burden of the 
 covenant was regarded as running, else he thinks there was 
 nothing to argue; for in neither case would the defendant 
 have been liable. But Mr. Sugden seems to have misunder- 
 stood the court's position. Admitting that the running of the 
 ■covenant was debatable, that question need not come up at 
 all if the court were decided that the conveyance was the 
 mere exercise of the power. This they decided to be the case, 
 and so the other question remained undecided. 
 
 It is exceedingly likely, however, that Lord EUenborough's 
 opinion was that the covenant would run, as appears from 
 his reference to a discussion which he evidently had with 
 the plaintiff's counsel. He says: "Though the plaintiff's 
 counsel at first insisted that the power was nugatory, and 
 that the conveyance necessarily operated on the interest of 
 Watts, yet he afterwards abandoned that ground in his reply, 
 and agreed that the only point was whether the conveyance 
 operated on the interest which Watts had, or as an execution 
 of the power, and that it was a question of mere intention. 
 And if that be so, it ought to appear very clearly that the 
 covenants and provisions in the deeds cannot take effect, if 
 the conveyance should be holden to operate as an appoint- 
 ment in order to authorize the court so to determine." * * 
 
 But the decision in Koach v. Wadham was not taken to 
 end the question in favor of the running of burdens, any more 
 than the earlier decisions had been entirely accepted the other 
 way; and the point still remained open. 
 
 Lord Eldon was in doubt about the law of covenants when 
 he decided Collins v. Plumb, 16 Vesey 434; and Sir John 
 Leach was not anxious to render an opinion upon them when 
 he decided Barclay v. Eaine, 1 Sim. & Stu. 449. We learn, 
 however, from a note in 7 Jarman's Bythewood 572, that Sir 
 
144 THE EUNNING OF BENEFITS AND BUEDENS 
 
 John Leach was of opinion that the burden of covenants could 
 run with land. 
 
 Next conies the implication from the decision in Vyvyani 
 V. Arthur, 1 B. & C. 410 (see p. 112), where the question^ 
 to be sure, was the running of a lessee's covenant to grind 
 corn at a mill of the lessor's to the assignee of the reversion. 
 But Bailey, J., and Holroyd, J., distinctly say that this cove- 
 nant they think operates by the Common Law and not under 
 the Statute of Leases, placing their decision upon what they 
 deem the atithority of Pakenham's Case in the year books 
 (see Ch. II). "The suits and services are to be rendered by 
 the lessee, his executors, administrators, and assigns to whom 
 the lands are leased; and this suit is to be rendered to the 
 mill of the lessor, his heirs and assigns ; so that it appears to 
 have been the intention that the assignees of the lessor and 
 lessee should be bound, for they are expressly named." 
 
 It is queer, after this decision, that Mr. Sugden granted 
 the point that covenants did not run with the reversion at 
 Common Law,-*^ while he still maintained that the burden of 
 covenants in grants would run with the land,^ 
 
 Following this comes the argumentative discussion of the 
 question by Lord Brougham as Chancellor in Keppel v. 
 Bailey, 2 M. & K. 517. The decision did not involve the 
 question, for it was on a lease holder's covenant with a Hall- 
 way Co. for the exclusive use of their road, the covenantee 
 suing the assignee of the covenantor. The court held the par- 
 ticular covenant a stranger's covenant and therefore not 
 capable of running, but Lord Brougham advanced a utili- 
 tarian doctrine, which is emphasized by the editor of Smith's 
 Leading Cases, and which has no doubt had great influence 
 upon the eventual outcome of the law. He points out that 
 while the running of benefits imposes no obligation which. 
 was not contemplated, and so not inequitable, yet the run- 
 
 1 V. & P., 14th ed., p. 583. 
 
 2 V. & P., 14th ed., p. 596. 
 
"WITH FEE ESTATES IN MODEEH" LAW. 145 
 
 ning of burdens may cause the fall of a liability upon one 
 who had subjected himself unawares, so that the enforcing 
 of a legal right might occasion the greatest injustice. The 
 suggestion no doubt seems strong, and must be considered be- 
 fore coming to a conclusion on the whole subject; but it is 
 opportune to remember that the experience of the greatest 
 jurists has taught us to be careful of a method of decision 
 supported by the apparent justice of a ease in disregard of the 
 deeper principles or analogies of the Common Law. It is 
 evident that Lord Brougham's distinction between benefits 
 and burdens can rest only on an exercise of the judge's power 
 to be followed only where there is not the least doubt that 
 such a course would receive the unanimous endorsement of 
 administrators of the law. 
 
 From about the time of Keppel v. Bailey the running of 
 burdens in England became less and less sustained. In 
 Whatman v. Gibson, 9 Sim. 196, and in Mann v. Stevens, 
 15 Sim. 33Y, restricted building covenants were enforced in 
 equity against assignees taking with notice, the court doubt- 
 ing whether there could be brought an action at law. And 
 in due time came the equity decision of Lord Cottenham 
 in Tulk V. Moxhay, 2 Phil. 774, from which date the fuller 
 recognition of equitable rights and the firm repression of all 
 future attempts to gain any recognition in law. 
 
 In only three other cases was the notion that burdens could 
 run at Common Law maintained by the courts. Lo'^d Eom- 
 illy believed that they could run and said so in two cases. In 
 Western v. McDermott, L. R. 1 Eq. 449, covenants by all the 
 householders in a row to preserve gardens were enforced by 
 injunctions. Lord Eomilly holding that the benefits and bur- 
 dens of the covenants ran with the land. But on appeal, 
 L. E. 2 Ch. 72, the court held it merely an indorsement of 
 TuUs V. Moxhay, and refused to decide the question of the 
 burdens running as covenants. Yet Lord Eomilly expressed. 
 
146 THE EUNNIH'G OF BENEFITS AND BURDENS 
 
 himself as of the same opinion in Morland v. Cook, 6 Equity 
 252. 
 
 Once more, in Cooke v. Cilcott, 3 Ch. D. 694, the Common 
 Law running of burdens was endorsed. There was a con- 
 veyance of land, the vendee covenanting to supply water to 
 other lots of the vendor. The vendor sold one of these lots 
 to the plaintiff, and the vendee sold the lot on which the 
 water was to the defendant, both having notice of the cove- 
 nants. The defendant refused to continue furnishing the 
 water, and the plaintiff sought relief in equity by a manda- 
 tory injunction. Vice-Chancellor Malins held that the bur- 
 den of the covenant ran with the land to the defendant, but 
 at any rate that notice of its existence made him liable. The 
 case seems to have been appealed, but the best explanation 
 of it appears in the argument of counsel in Hayward v. Bldg. 
 Society, 8 Q. B. D. 403. 
 
 "Cooke V. Chilcott," the learned counsel said, "is the only 
 instance in which the covenant was not a restrictive one, and 
 there Malins, V. C, was of opinion that the covenant ran 
 with the land ; so that it was not necessary in that case to 
 resort to the doctrine of notice. When that case came up 
 upon demurrer before the Court of Appeal there was no de- 
 cision on the present point, as on the pleadings the defendant 
 had admitted his liability on the covenant, and it was on 
 that ground alone that the Court of Appeal affirmed the 
 decision of the Vice-Chancellor." And then the learned 
 counsel endeavored to point out that there was really an 
 easement in Cooke v. Chilcott. 
 
 These three cases, however, had no permanent effect, for 
 close upon them comes the first and only decision at law that 
 the burden of covenants will not run with the land. In Hay- 
 ward V. Brunswick Building Society, 8 Q. B. D. 403, in the 
 Court of Appeal, the facts were that A., possessed of landj 
 had deeded it to B., reserving a yearly rent, and B. had 
 covenanted to repair and to produce the rent. A. assigned 
 
WITH FEE ESTATES IN MODEEIST LAW. 14T 
 
 the rent to the plaintiff, and B. assigned the land to the 
 defendant. The plaintiff sued the defendant for his failure 
 to repair. The facts were about the same as those in Milnes 
 V. Branch (post, p. 199), and Brett,TL. J., thought that case a 
 binding authority that the benefit of the covenant would not 
 run with the rent to the plaintiff. But Cotton and Lindley, 
 L. JJ., discussed the point of the burden running, and con- 
 sidered that allowing it to run would be an extension in 
 law of the equity doctrine of Tulk v. Moxhay, although they 
 admitted that the plaintiff here had no right to appear in 
 equity. They regarded Tulk v. Moxhay as limited to re- 
 strictive covenants, and without further discussion gave judg- 
 ment for the defendant. 
 
 Whatever may be said of this decision otherwise, it is not a 
 discussion of the question at all. So it must be admitted that 
 the law in England rests only upon the earlier dicta and 
 certain decisions in equity, of which probably the most im- 
 portant is Austerberry v. Oldham, 29 Ch. D. 750.^ There 
 land was conveyed out oT'a larger piece for the purpose of a 
 public roadj the trustees who received it covenanting to make 
 and repair the road. Assigns were named in the covenant. 
 Both properties were assigned with notice of the covenant, 
 and the assignee of the landed property sought by bill in 
 equity to compel the assignees of the road to keep it in repair. 
 The Court of Appeal, Cotton, Lindley, and Fry, L. JJ., held 
 
 1 In Butler v. Archer, 12 Irish C. L., N. S. 104, A granted land to 
 the defendant reserving a fee farm rent to him, his heirs and assigns, 
 and agreeing that an amount might be deducted from the rent for 
 repairs. A assigned the rent to the plaintiff, who sued the defendant 
 for arrears. The defendant sought to deduct repairs, claiming that 
 the agreement to allow it ran against the plaintiff; but the court 
 held that the deduction was not allowable, as burdens of covenants 
 did not run except with leases under Stat. 32, H. VIII. Some of the 
 court thought, however, that the rent less the repairs constituted the 
 whole reservation. It seems not to have been noticed, that to allow 
 the burden to run would have been, moreover, allowing a covenant 
 to run with an incorporeal hereditament, contrary to settled English 
 law. (See post, Ch. IX, sec. 3.) 
 
148 THE EUWNING OF BENEFITS ASTD BURDENS 
 
 that the burden of the covenants would not run, and doubted, 
 whether the benefits would run. They decided that there waa 
 no binding decision that burdens would run, and that it was 
 not such a restrictive covenant as could be enforced in equity. 
 
 Since that decision, 1885, the question seems not to have 
 been argued in England; and as it was a decision by the 
 Court of Appeal, it will probably be regarded as settling the 
 English law, unless it be raised in future in the House of 
 Lords. It is of course possible that the highest court may 
 yet change the condition of the law, especially as none of the 
 present advisors of that body has been a member of any of 
 the lower courts who have rendered the decisions containing 
 dicta against the running of covenants; but as the accepted 
 notion has come to be that the burdens will not run, a further 
 argument of the question is not likely to meet with encour- 
 agement. 
 
 So much for the English law. The weight of American 
 decisions, however, seems to follow the contrary view. 
 Worked out largely for themselves, without any English au- 
 thorities of recent date, it is rather to be expected that the 
 rational course of the law would lead the courts to a con- 
 clusion contrary to the English. And while some of the 
 states, which notably follow the yearly trend of English de- 
 cisions, have renounced the historical trend of covenants and 
 developed the notion of Tulk v. Moxhay, it may be said 
 broadly that those states are exceptions. Perhaps the early 
 acceptance of the burden of covenants may have been occa- 
 sioned by the accidental rise of cases which emphasized rather 
 the advantages than the objections to their running. Such 
 are the early party-wall agreements in Massachusetts, and 
 the mill grants in that and other states. Of course these de- 
 cisions in neighboring states and the easy confusion of the 
 English decisions on leases have rendered it comparatively 
 easy for newer states to extend the doctrine until it has be- 
 come well nigh universal. 
 
WITH FEE ESTATES IN MODEKN LAW. 149 
 
 For convenience it is thought not unwise to follow the de- 
 cisions out in the different states. They are taken up as nearly 
 as possible in the order in which the doctrine arose in the 
 several jurisdictions. 
 
 Probably the earliest American decisions on the running 
 of covenants are in Pennsylvania. In Dunbar v. Jumper, 
 2 Yeates 1i, A, the possessor of certain lands, sold a half 
 acre to B for a mill, "yielding and paying to A and his fam- 
 ily" the right to grind corn free at B's mill so long as they 
 should consume it on the plantation. It was a jury case, 
 and the jury were directed that the burden ran to B's assign. 
 So in Herbaugh v. Zentmyer, 2 Eawle l59, where a father 
 had sold land to his son, who had covenanted to pay a certain 
 amount of different cereals yearly, it was held that a pur- 
 chaser at mortgage sale of the son's estate was bound by the 
 ■covenant. It was added, however, that the covenant was but 
 an obligation to pay rent in kind instead of in money. But it 
 is clear from the earlier decision of Kunckle v. Wynick, 1 
 Dall. 305, that the notion of the distinction between debt 
 and covenant for rent had been emphasized ; so the case must 
 support the running of the covenant. 
 
 The covenants to pay ground rents were afterwards en- 
 forced in Pennsylvania expressly as covenants running with 
 -the land in Hurst v. Kodney, 1 Wash. C. C. 375 ; McQuigg 
 V. Morton, 39 Pa. 43 ; Conrad v. Smith, 5 Weekly Notes of 
 Cases 402; Springer v. Phillips, 71 Pa. 60; and Eitzman 
 T. Spencer, 5 Pa. Dist. Ct. 224. And in Fisher's Executors 
 V. Lewis, 1 Clark 422, the additional covenant to build for 
 the security of the ground rent was enforced against the 
 assignee of the covenantor; so there is not any doubt of the 
 full import of the decisions. See also Church of the Incar- 
 nation V. Williams, 5 Pa. Co. Ct. 641. But the assignee of 
 the rent is not bound by the burden of a covenant made by 
 his assignor who reserved the rent. Provident L. and T. Co. 
 ^r. Fiss, 147 Pa. 232. 
 
150 THE EUNNIISTG OF BENEFITS AND BUEDENS 
 
 In Dailey v. Beck, 4 Clark 58, a stipulation in a deed of 
 a lot that a certain street should be opened for the benefit 
 of the lot was held to be a covenant that could run with the 
 land until broken, though in that case it was broken in the 
 lifetime of the first grantor ; and in Muzzarelli v. Hulshizer, 
 163 Pa. 643, and Landell v. Hamilton, 175 Pa. 327, restrict- 
 ive building covenants were handled in equity as covenants 
 which bind the land, although in the latter case it was held 
 that the intention had not been that the covenant should be 
 perpetual. And see St. Andrew's Church's Appeal, 67 Pa. 
 512 ; Batley v. Poederer, 3 Pa. Dist. Ct. 167. 
 
 In Home v. Miller, 136 Pa. 640, A and B, owning adjoin- 
 ing lands, executed a recorded agreement as to the use of 
 the waters of a stream running between them. It was to 
 bind the heirs and assigns. The court held that these were 
 covenants running with the land on both sides and gave the 
 plaintifl^ damages at law for an alteration in the stream, 
 caused by the defendant. The court thought this was no 
 particular burden imposed upon either piece, but a fair ap- 
 portionment of uses for the benefit of each, whatever the 
 legal significance of that may be. Sse also Snyder's License^ 
 2 Pa. Dist. Ct. 785. 
 
 Pinally in Bald Eagle Valley Ey. Co. v. ISTittany Valley 
 Ey. Co., 171 Pa. 284, where a land company had executed 
 a mortgage to a trust company to secure an issue of bonds^ 
 of which a Railway Company was to take a large share, and. 
 the mortgage contained a covenant by the land company to 
 give all its traffic to the railroad company, it was held that 
 the railway could enforce this covenant against the assignee 
 of the land company by enjoining the building of another 
 railroad under contract with the assignee for a delivery of its. 
 traffic to the defendant railway company. The equitable 
 side of it will be discussed later, but the decision involves, 
 the burden of the covenant running with the land. 
 
 In commenting upon the Pennsylvania law it has been 
 
WITH FEE ESTATES IKT MODERN LAW. 151 
 
 said that in Pennsylvania the Statute of Quia Emptores has 
 never been held in force and that the relations of tenure 
 would explain the running of covenants there. Aside from 
 the fact that none of the Pennsylvania decisions is rested 
 upon that idea, it is submitted that the existence or non- 
 existence of Quia Emptores is immaterial. Of course the 
 existence of tenure would insure the running of covenants, 
 but it has been attempted to show that covenants found their 
 origin in express warranties rather than in implied war- 
 ranties, and we have seen that express warranties existed 
 and ran every way after the Statute of Quia Emptores had 
 cut off tenure entirely.^ 
 
 Massachusetts. — In Wheelock v. Thayer, 16 Pick. 68, and 
 Plymouth v. Carver, 16 Pick. 183, the question of burdens 
 of covenants was before the court, but it was held that the 
 grants there were not such as would allow the running of 
 covenants; and a similar decision was reached in Hurd v. 
 Curtis, 19 Pick. 459. In none of these cases, however, was 
 it thought that it was impossible for burdens to run with 
 the land. But in Morse v. Aldrieh, 19 Pick. 449, the court 
 held without doubts that the burden of a covenant did run 
 with the land. A conveyed land to B, covenanting that B 
 should have access to A's land for soil for certain purposes. 
 B conveyed to C, and C and A being in dispute over the 
 covenants, A covenanted to drain his pond at intervals that 
 C might get the deposit for fertilization. The property of 
 C came to the plaintiff, and that of A to the defendant. For 
 a refusal to carry out this covenant the plaintiff sued for 
 damages and was allowed to recover. See also Thomas v. 
 Poole, Y Gray 83. Then comes the first of the party-waU 
 decisions, the case of Savage v. Mason, 3 Cush. 500. A, 
 owning land, conveyed a lot to B with covenants that party- 
 
 1 The running of the burden of covenants has lately been rein- 
 dorsed in Pennsylvania in Electric City Land & Improvement Co. v. 
 West Ridge Coal Co., 41 Atl. Rep. 458. 
 
152 THE EUJSrifllTG OF BENEFITS AND BUEDENS 
 
 walls might be built, half upon each adjoining lot, the one 
 who first desired to build putting up the wall, and the other 
 owner or his assigns upon using the wall to pay haK the cost 
 of building it. The assign of B put up a wall, and the 
 assign of A's adjoining lot, on using the wall, was compelled 
 to pay half its value, according to the covenant. The court 
 held the burden to run, delivering the following much quoted 
 language: "A covenant is said to run with the land when 
 either the liability to perform it or the right to take advan- 
 tage of it passes to the assignee of the land." This case pre- 
 sented the rimning of covenants in its most advantageous 
 light, and very probably had much more to do with the de- 
 velopment of the law in America than its mere citation will 
 indicate. 
 
 The running of the party-wall covenants was afterwards 
 indorsed in Massachusetts by Cutter v. Williams, 3 Allen 
 196 ; Standish v. Lawrence, 111 Mass. Ill ; Kichardson v. 
 Tobey, 121 Mass. 457; King v. Wright, 155 Mass. 444; and 
 Pfeiffer v. Matthews, 161 Mass. 487. 
 
 In Maine v. Cumstom, 98 Mass. 317, the conveyances con- 
 taining the party-wall agreements were deeds poll expressing 
 the agreements as conditions ; but the court held that the ac- 
 ceptance of the deed implied the acceptance of the condition 
 and allowed the assign to be liable in contract. (See post, 
 Ch. IX, sec. 1.) 
 
 Bronson v. Coffin, 108 Mass. 175, before the court again in 
 118 Mass. 156, brought up the running of a covenant to 
 fence. A, owning land, granted a strip through it for the 
 building of a railroad and covenanted for himself, his heirs 
 and assigns perpetually to maintain a fence on his land the 
 length of the railway track. Later a part of the land not 
 immediately contiguous to the railroad was sold to the plain- 
 tiff, who now claimed that it was encumbered. The court 
 held that it did not encumber the whole land, but only the 
 part on which the fence was built ; that an easement in the 
 
WITH FEE ESTATES IN MODEEN LAW. 153 
 
 nature of an obligation to fence was created in the grantor's 
 land and that with this easement ran the covenant to fence 
 as a covenant running with the land. Of course this became 
 merely a covenant to do what the spurious easements imposed 
 anyway, but the case is an authority expressly that the burden 
 •of the covenant runs with the land; and this Mr. Justice 
 Oray intended, for he quoted the authorities to that effect 
 in Massachusetts. There has been an exceeding looseness in 
 the American decisions in speaking concurrently of easements 
 and covenants in many instances as if they meant the same 
 thing. Indeed Washburn says that an easement is the grant 
 of the obligation to do or refrain from doing a certain thing 
 on the land of the grantor; "or may be created by a cove- 
 nant." Whatever he meant to say by this, it is to be noticed 
 that Bronson v. CoflSn is no authority for anything more than 
 this : Granted that an easement was intended to be created, 
 this covenant will run with it. That an easement was in- 
 tended to be granted, Mr. Justice Gray concludes only from 
 the whole matter. It is believed that, bearing this in mind, 
 many of the cases involving easements in other jurisdictions 
 will be more easily handled. In Parrish v. Whitney, 3 Gray 
 516, the earlier decision that a stipulation for fencing would 
 not run with the land, it will be noted that the deed was 
 only a deed poll, and so of course the grantee had not cove- 
 nanted at all. 
 
 In Middlefield v. The Knitting Co., 160 Mass. 267, the 
 town had been bound to repair a bridge over a certain creek, 
 and the landowners along the creek, desiring to raise the 
 water by a dam for the purpose of milling to a height which 
 required a longer bridge, built the new bridge and covenanted 
 to repair it. The land and mill in question came to the de- 
 fendant, and the town sought by action of contract to get 
 damages for his failure to repair the bridge. Mr. Justice 
 Holmes, delivering the opinion, held that the burden fell 
 upon the defendant, but suggested that the covenant to repair, 
 
154: THE KUlTISrilTG OF BENEFITS AND BUEDENS 
 
 like the covenant to fence, was in the nature of a spurious 
 easement and formed an exception to the notion that the bur- 
 den of covenants will not run. For the notion that the cove- 
 nant to repair is in the nature of a spurious easement Mr. 
 Justice Holmes is the leading authority, and we have seen 
 that there is no authority in Massachusetts for the confusion 
 of spurious easements and covenants. Whether it is the step- 
 ping stone in Massachusetts for that court to repudiate its- 
 general doctrine that the burden of covenants will run with 
 the land, only the future can determine. But from Mr. 
 Justice Holmes' later opinion in equity in ISTorcross v. James, 
 140 Mass. 188, it would seem that he thought that all cove- 
 nants concerning the land would run, on the broad notion 
 that they were all easements. 
 
 For other examples of the burden of covenants enforceable 
 in Massachusetts see Jeifries v. Jeffries, 117 Mass. 184; 
 Tobey v. Moore, 130 Mass. 448. 
 
 New York. — In Van Eensellaer v. Smith, 27 Barb. 104, 
 the assignment of a rent reserved out of a grant in fee was; 
 held sufficient to carry the covenant to pay the rent. The 
 court explained that the Statute of Quia Emptores had never 
 been enforced in ITew York, the laws never having been 
 worded to re-enact it; and hence there might be tenure in 
 fee. Therefore a covenant to pay rent ran from the tenant 
 to the lord or the lord's assignee through the presence of 
 pure privity of estate, or ownership by lord and tenant in 
 the same property, as in leases at the present day. It has- 
 been attempted to show in connection with the Pennsylvania 
 cases that the existence or non-existence of the Statute of 
 Quia Emptores need have little to do with the law now, but it 
 is clear that its non-existence would insure the running of 
 covenants to pay rent. See also Tyler v. Heidorn, 46 Barb. 
 439. 
 
 But whether the absence of that statute alone is enough 
 to explain the running of other covenants in IsTew York 
 
WITH PEE ESTATES IN MODEEW LAW. 155 
 
 would seem of more doubt. The party-wall covenants cre- 
 ated in grants of easements, and binding not the easement 
 granted, but the land reserved, and indeed all covenants bind- 
 ing other land of the grantor, involve a different principle 
 from the pure privity of estate which is identity of owner- 
 ship by lord and tenant in the same land. Those covenants 
 seem rather to run by analogy than for any tenure existing 
 between the parties, and after all seem to involve recourse 
 to the express warranty to explain their operation. Thus 
 in Nye v. Hoyle (see post), there was a grant of land, but 
 the covenants of the grantor and grantee to repair the mill 
 dam were to be performed on different land from that 
 granted. It is clear from New York cases, however, that 
 whatever analogies were needed were strictly required to be 
 carried out, and no state is more careful to require the cove- 
 nants to accompany some kind of grant than New York. 
 Lawrence v. Whitney, 115 N. Y. 410. 
 
 Barrow v. Richard, 8 Paige 359, indicates that it was 
 thought that the burden of a covenant would run in New 
 York, but the decision itself was based upon equity. A 
 granted a lot to B, requiring of the grantee a covenant re- 
 stricting its use, but A seems to have made no covenants as 
 to the remainder. Then A sold off other land to C, who made 
 the same restrictive covenant. Upon C's breaking this cove- 
 nant the court thought B might not be able to sue C at law, 
 since the grant to B preceded that to C, so that B was not 
 an assignee of C's covenantee after the covenant; but for 
 the reason that the covenant was evidently intended for all 
 the surrounding lot owners, B was allowed to enjoin C in 
 equity. 
 
 The first New York case really deciding the running of 
 burdens seems to be Denman v. Prince, 40 Barb. 213. A, 
 owning land, granted a mill site to the plaintiff and cove- 
 nanted to pay half the cost of repairing the dam. The court 
 held that this covenant ran with the rest of A's land assigned 
 
 12 
 
156 THE EUI^NING OF BENEFITS AND BITEDENS 
 
 to the defendants, and that the plaintiff might recover the 
 defendant's share of the cost. In Hills v. Miller, 3 Paige 
 254, and in Trustees of Watertown v. Cowen, 4 Paige 510, 
 right to enforce the maintenance of open ground had been 
 sustained in equity, but the cases seem pretty clearly in- 
 stances of easements, so they need hardly be referred to 
 except for comparison. 
 
 Some doubt, however, was thrown upon the New York 
 law by two decisions upon party-walls, one by the Commis- 
 sion of Appeals in Cole v. Hughes, 64 IST. Y. 444, and the 
 other in Scott v. McMillan, 76 IST. Y. 141. In the former 
 of these cases the agreement was between two adjoining lot 
 owners, one to build the wall and the other to pay on user, 
 and the heirs and assigns of both were included in the cove- 
 nant, so that there is no doubt as to' the intention of the 
 parties. The one who built, however, assigned the right to 
 recover to one person and the land to another, and in time 
 the assignee of the adjoining lot obtained a half ovmership 
 in that lot also which had been iirst built upon. On building 
 himself, the assignee of the right of recovery sought to re- 
 cover half the value of the wall. In this state of affairs the 
 court held that the right of recovery did not go with the 
 land, as it did not benefit it ; and then decided that the duty 
 of paying did not run with the land to the defendants. They 
 noted a distinction between benefits and burdens, but said 
 ' that burdens could not run without a privity of estate ; and 
 that there had been no grant of interest in land here, so 
 that the obligation was purely personal. How far the mat- 
 ter of grant had been carried out will come up later, but the 
 decision is that the burden did not run because there had 
 been no grant ; and barring that point, the case is not trouble- 
 some. The other case, Scott v. McMillan, was substantially 
 the same as Cole v. Hughes, and followed it. 
 
 These cases are probably shaken, even on that point, by 
 
WITH FEE ESTATES IN MODEEN lAW. 157 
 
 Hart V. Lyon, 90 N. Y. 663, but they concern us no farther 
 at present. 
 
 In Avery v. IS^ew York Central Ey., 106 ]^. Y. 142, land 
 had been conveyed to the defendant's predecessor, the deed 
 stipulating that "This conveyance is upon express condition 
 that the said Railway Co., their successors or assigns, shall 
 at all times maintain an opening into the premises hereby 
 conveyed, opposite the hotel," etc. The court held this a cove- 
 nant running with the land, enforceable by the grantor's 
 lessee against the grantee's assign by a bill in equity to have 
 the fence opened. 
 
 In Post V. Weil, 115 'N. Y. 361, the "express condition" 
 in a former deed that a tavern should not be erected upon 
 the land in question was held to indicate an intention for a 
 covenant, but was held to be extinguished by the prior union 
 of the pieces in one party. At the suggestion of the counsel, 
 however, the court conceded that the covenant gave equitable 
 rights only. Still the mere question at issue was whether 
 the covenant was an incumbrance on the title ; and the court 
 deciding that it was not, the rest was dictum. But in l^je 
 V. Hoyle, 120 N. Y. 195, the decision in favor of the run- 
 ning of covenants was flat-footed. A and B owned adjoining 
 lands with water-privileges, and finding it possible to better 
 the condition of both, they covenanted to make a new water 
 power on the land of B in which A was to have one-third and 
 B two-thirds ownership ; and A was to repair the part of the 
 work on his land, while B repaired that on his. Also a piece 
 of land was granted by B to A for a mill site. The lands 
 descended and were assigned respectively to the plaintiff and 
 the defendant. Part of the work was washed away, and the 
 plaintiff repaired it all, seeking to recover the proportionate 
 amount due him from the defendant. The court held that 
 the covenants ran with the lands on both sides, and gave the 
 plaintiff his money. Compare also Graves v. Deterling, 120 
 N. Y. 447. 
 
158 THE EUNimTG OF BENEFITS AND BUEDENS 
 
 In Clement v. Burtis, 121 N. Y. 708, a covenant not to 
 erect any building that would be a nuisance was held a cove- 
 nant v^hose burden ran with the land, although the court 
 said it was no more than the law imposed upon every land 
 owner anyway; so it was not fully decisive. While the de- 
 cision does not so indicate, it would seem that there was 
 something more in the covenant than could have been en- 
 forced without it, as it was covenanted not to erect a build- 
 ing to be used as a nuisance, and it may well be doubted 
 whether equity would enjoin building anyway merely be- 
 cause an unlawful use was intended to be made of the build- 
 ing when it should be completed. But the question before the 
 court was whether the covenant was an encumbrance, and 
 that the court decided in the negative. 
 
 Mott V. Oppenheimer, 135 N. Y. 312, was another ease of 
 adjoining owners entering into a party-wall agreement, and 
 the court restrained an assign from using the wall until he 
 had paid his share, deciding very clearly that the covenant 
 bound the land. 
 
 The lower courts in New York have been particularly free 
 in holding that the burden of covenants runs with land, 
 either for enforcement in equity or for suit at law. In Coun- 
 tryman V. Deck, 13 Abb. IST. C. 110, a covenant to fence was 
 enforced in equity. In Stewart v. Aldrich, 8 Hun 241, a 
 party-wall agreement gave an action at law. And reference 
 may be made to Haynes v. B. K Y. & P. Ey., 38 Hun 17; 
 Eaynor v. Lyon, 46 Hun 227 ; Dey v. Prentice, 90 Hun 27 ; 
 Guentzer v. Juch, 4 IST. Y. Supp. 39 ; Mohr v. Parmalee, 43 
 K Y. Super. Ct. 320; Trustees of Columbia College v. 
 Lynch, 47 How. Pr. 273 ; Main v. Feather, 21 Barb. 646 ; 
 Van Kensellaer v. Hayes, 19 JST. Y. 68 ; DufFey v. K Y. & 
 H. Ey., 2 Hilton 496; Wilcox v. Campbell, 35 Hun 254; 
 Post V. West Shore Ey., 50 Hun 301 ; Witherbee v. Meyer, 
 84 Hun 146 ; Phoenix Ins. Co. v. Continental Ins. Co., 87 
 K Y. 400; Dexter v. Beard, 130 'N. Y. 549. It is evident. 
 
WITH FEE ESTATES IN MODEEN LAW. 159 
 
 "therefore, that there is not much doubt of the running of 
 covenants in New York. 
 
 Rhode Island. — In Green v. Creighton, 1 K. I. 1, Halsey's 
 heirs had deeded a strip of land to the City of Providence 
 for a street, and covenanted and agreed not to build beyond 
 eight feet of the line. The court held that this covenant ran 
 to the assigns of the various heirs and burdened the land. 
 See also Thayer v. Smith, Y K. I. 164, as to the effect of a 
 statute in Rhode Island that assigns, etc., under division 
 fence agreements must carry out the burdens when the cove- 
 nants are recorded. 
 
 Yermont. — An early decision in this state indicates a 
 tendency to indorse the running of covenants. Kellogg v. 
 Eobinson, 6 Vt. 276, decided that a stipulation in a deed 
 that a grantee should fence ran with the land. But there 
 appears no other decision until Clement v. Putnam, 68 Vt. 
 285, where the running of restrictive covenants in equity 
 was set forth. The law may be in some doubt therefore. 
 
 Indiana. — In Carley v. Lewis, 24 Indiana 23, the Indiana 
 court first indorsed the running of burdens by holding that 
 a covenant to pay rent would run with land. Then a some- 
 what contrary position was believed to be taken in Bloch v. 
 Isham, 28 Ind. 37. There adjoining property owners had 
 made a party-wall agreement ; and one party having built the 
 wall his assignee was not allowed to sue the assignee of the 
 adjoining lot upon user, as the court held the covenant to 
 pay merely personal. This case is cited by Washburn in 
 his Eeal Property as supporting the proposition that such a 
 party-wall agreement was merely personal, 2 Washburn Eeal 
 Prop. 262-3 ; but on a rehearing of Conduit v. Ross, 102 Ind. 
 166, the state court considered that Bloch v. Isham merely 
 decided that the benefit of that particular covenant did not 
 run, while allowing that the burden of the covenant might run 
 to the assignee. See also Indianapolis Water Co. v. Nulte, 
 126 Ind. 373. 
 
160 THE BUNKING OF BENEFITS AND BURDENS 
 
 Hazlett V. Sinclair, 76 Ind. 488, held that the burden of 
 a covenant to maintain a fence inserted in a grant would 
 run with the land, indicating that it amounted to an ease- 
 ment.^ But in Conduit v. Eoss, 102 Ind. 166, where Hauck 
 and Koss, owners of adjoining lots had made a party-wall 
 agreement, and Koss had built the wall which Hauck's as- 
 signee had used, it was held that the covenant was one which 
 ran with the land and Ross was allowed damages at law for 
 the assignee's refusing to pay his half the cost of the party- 
 wall. This has probably settled the law in Indiana. See 
 also Lake Erie Ey. v. Priest, 31 IST. E. Eep. 77 ; Toledo Ey. v. 
 Cosand, 33 E". E. Eep. 251; Ey. v. Power, 43 K E. Eep. 
 959; Midland Ey. v. Eiss, 125 Ind. 19, all covenants t» 
 fence. 
 
 Illinois. — Steele v. Biggs, 22 111. 643, contained a cove- 
 nant by the grantee for himself and assigns to pay for the 
 land granted him, and the court seem to have thought that 
 such a covenant would run. But there was a clear holding in 
 Dorsey v. St. L., A. & T. H. Ey., 58 111. 65, that the burden 
 of the covenant ran with the land and might be sued on 
 at law. The covenant was a grantee's agreement to fence, 
 but the court discussed the running of covenants from their 
 rise in warranties, with a clear indorsement of the running. 
 
 The more recent case of Pitch v. Johnson, 104 111. Ill, 
 was a covenant to repair a dam by a grantor of a mill and 
 water rights, and the court held that the burden of the cove- 
 nant was meant to run and must be allowed. The position 
 was assumed in the face of the great general doubt on the 
 question. So in Gibson v. Holden, 115 111. 199, the theory 
 was again indorsed though the facts did not involve a de- 
 
 1 It will be noted that this easement was granted by the grantee, 
 and so differs from the same easement in Bronson v. Coffin; so that 
 it must have operated as a grant back. Query whether such a thing 
 was possible until the title to the land had been received. The case 
 of easements of necessity, where there has been but one instrument, 
 is believed to be an exception to the general law. 
 
"WITH FEE ESTATES IN MODEllM" LAW. 161 
 
 cision. Decisions supported the running of party-wall agree- 
 ments in Roche v. Ullman, 104 111. 11, and in Tomblin v. 
 Fish, 18 Bradwell 439. 
 
 Wisconsin. — Wooliscroft v. ISTorton, 15 Wis. 198, is a clear 
 decision that the burden of covenants will run with the land. 
 A owned land and a waterpower. He sold a mill site, the 
 grantee covenanting to pay a proportionate share in repair- 
 ing the dam. The defendant, being the eventual assignee, 
 was sued at law for his share of repairs, and the court held 
 that the covenant was incident to the land and bound those 
 to whom the land subsequently might pass. 
 
 Next Pierce v. Kneeland, 16 Wis. 672, held that a cove- 
 nant in a mortgage that the mortgagor will pay solicitors' 
 fees binds the equity in the hands of a purchaser. Then in 
 Hartung v. Witte, 59 Wis. 285, a covenant by a grantee to 
 maintain a fence was held to bind a successor, though the 
 court was sufficiently under the influence of Spencer's Case 
 to hold that a covenant to build a fence — an erection not then 
 on the land — would not run without express mention of as- 
 signs. So in Crawford v. Witherbee, 77 Wis. 419, where A 
 sold to the plaintiff a share in the minerals in a piece of land 
 and covenanted to raise the minerals, it was held that the 
 burden of the covenant fell upon the defendant, A's as- 
 signee. 
 
 Maryland. — In Green v. Canby, 24 Md. 127, a mortgagor's 
 covenant for himself and assigns to pay the debt was held 
 not to subject an assign to liability to an action of covenant^ 
 as- the covenant was considered merely personal, but the 
 court said that a covenant which affects the quality and mode 
 of enjoyment of land might run with it. The court did 
 not clearly carry out this promise however ; for when it was 
 attempted to enforce in equity against an assignee a grantee's 
 covenant, it was held that an assignee could not be bound 
 without privity of estate, but that restrictive covenants might 
 be enforced where there was notice. Lynn v. Mt. Savage 
 
162 THE EUNNIWG OP BENEFITS AND BUEDENS 
 
 Iron Co., 34 Md. 603. Accordingly in Halle v. Newbold, 69 
 Md. 265, it was held that a grantee's covenant that buildings 
 of only a particular quality should be erected on the land, 
 "was a restriction binding upon those receiving with notice, 
 and an incumbrance on the land. But Baltimore v. White, 
 62 Md. 362, decided that covenants in a deed of partition 
 that the parties and their successors should have ingress 
 through certain alleys ran with the land, though they might 
 well have been regarded as easements anyway. 
 
 Georgia. — The burden of covenants seems clearly to run in 
 Georgia. In Howard Mnfg. Co. v. Water Lot Co., 53 Ga. 
 689, there were covenants to restrict a building line and to 
 bear a share of repairing a dam ; and the court admitted that 
 they ran with the land; while in Georgia Southern Ey. v. 
 Eeeves, 64 Ga. 492, a covenant by the grantee to build a depot 
 on a strip of land granted was held to bind the grantee's 
 assign. 
 
 North Carolina. — In ITorfleet v. Cromwell, 64 N. 0. 1, 
 there had been a grant of an easement for the use of a canal, 
 the grantor covenanting to share in the repairs. The court 
 held that the duty to repair was contingent upon the devel- 
 opment of a necessity for it, and the defendant, an assignee, 
 having renounced this contingent liability, was entitled to 
 notice before action was brought against him. But the opin- 
 ion discusses the running of the burden of covenants, and 
 concludes that the distinction of Lord Brougham in Keppell 
 v. Bailey and the view of the learned editor of Spencer's 
 Case in Smith's Leading Cases, are not sound, and that 
 burdens should run with the land. The learned judge limits 
 his conclusion, however, to cases "where the intent to create 
 an easement [the grant] is clear, where the easement is ap- 
 parent, and where the covenant is consistent with public pol- 
 icy, and so qualifies or regulates the mode of enjoying the 
 easement, that if it be disregarded, the easement created will 
 be substantially different from that intended." 
 
"WITH FEE ESTATES IN MODEEN LAW. 163 
 
 There has been no further discussion of the matter in 
 nSTorth Carolina, although in Eaby v. Eeeves, 112 N. 0. 688, 
 the benefit of a covenant to pay rent was allowed to run to 
 an assignee without indication that the running of covenants 
 Tvas confined to benefits. 
 
 California. — In Weil v. Baldwin, 64 Cal. 476, A sold to 
 the plaintiff a ditch to a reservoir on A's land, and they made 
 an indenture setting out the premises. The defendant took 
 A's land and sought to prevent the plaintiff from entering 
 the land. The parties had called the transfer to the plaintiff 
 of the ditch a sale, but the court held it a covenant running 
 with A's land, without admitting a sale of any interest. But 
 however clear the correctness of the decision may have been 
 on the facts, the court committed itself to the position of 
 covenants running as burdens. So in Fresno Canal Co. v. 
 Dunbar, 80 Cal. 530, where the grantee of a right from a 
 water company covenanted to pay rent, the court held that 
 the covenant bound the land as a lien, though it did not per- 
 sonally bind the assignee. And in Bean v. Stoneman, 104 
 Cal. 49, a covenant in a grant of land to allow water to run 
 to the land granted through other land of the grantor, was 
 held to bind that other land in the hands of the successor of 
 the covenantor. 
 
 Tennessee. — In Brew v. VanDeman, 6 Heiskell, 433, a 
 covenant in a grant to leave a way open was enforced as an 
 easement against assigns. 
 
 Kentuchy. — The court in Hatcher v. Andrews, 5 Bush 
 561, held that a covenant not to sell liquor on the land in 
 question was an encumbrance which would bind an eventual 
 vendee, and allow him to sue on a covenant for title. So in 
 Xy. Central Ey. v. Kenney, 82 Ky. 154, a statement in an 
 indenture passing land, evidently intended to have the effect 
 of a covenant to fence, was held to bind successors in title. 
 Then in Gibson v. Porter, 15 S. W. Eep. 871, an exception 
 
164: THE EUNNING OF BENEFITS AND BTJEDENS 
 
 of a road was enforced as an easement or covenant running 
 "with the land. 
 
 Minnesota. — Miller v. Mendenhall, 43 Minn. 95, decided 
 that the burden of a covenant in a deed vcould run, but the 
 opinion vt'as affected by the fact of notice of the covenant hav- 
 ing been given to the assignee. It appears from Pillsbury 
 V. Morris, 54 Minn. 492, however, that a party-wall agree- 
 ment runs as a charge upon land, so that it is possible that 
 the law in Minnesota will indorse the full running of bur- 
 dens. 
 
 Alabama. — In Eobbins v. Webb, 68 Ala. 393, a restrictive 
 covenant was held to run with land and to be enforceable in 
 equity; but in Gilmer v. Mobile & Montgomery Ry., 79 Ala. 
 569, the court delivered an elaborate opinion holding that the 
 burden of covenants can run at law. There was a grant of 
 land to the defendant's assignor for a right of way, and 
 the grantee covenanted to erect a station on the land. The 
 grantor reserved the right to cultivate the land, which the 
 court thought an easement. This was held sufficient privity 
 of estate to fulfill the requirement of privity and the court 
 held the defendant liable on the covenant to build a station. 
 The distinction between the running of benefits and the 
 running of burdens was repudiated. This case was affirmed 
 in 85 Ala. 422. Compare also McMahon v. Williams, 79 
 Ala. 288, where a restrictive covenant was enforced as a legal 
 easement. 
 
 Mississippi. — Kansas. — In Carson v. Percy, 57 Miss. 97, 
 and in Martin v. Martin, 44 Kan. 295, the burdens 
 of covenants to perform active services were enforced in 
 equity, the Mississippi case being a covenant to allow more 
 land upon which a wharf might be extended when the for- 
 merly used ground should cave in ; and the Kansas case being 
 a covenant to render sustenance and support to the grantor. 
 
 West Virginia. — The court in this state first broadly in- 
 dorsed the running of burdens in Lydick v. B. & O. Ry., 17 
 
WITH PEE ESTATES IN MODEEH" LAW. 165 
 
 W. Va. 427, thoiagh the case did not require a decision upon 
 the point, but later in W. Va. Transportation Co. v. Ohio 
 Kiver Pipe Line Co., 22 W. Va. 600, the court seemed to 
 take the opposite view, that the burden of a covenant would 
 not run; but again the case went off upon a different point. 
 
 loiva. — In Peden v. Chi., Kock Isl. & Pac. Ky., 78 Iowa 
 131, it was held that a covenant by a railway company on 
 receiving land, that water should be kept out from other 
 land of the grantor, ran with the land against the covenantor's 
 assigns so as to hold the defendant liable for failure of per- 
 formance. Compare Peden v. Same, 83 Iowa 328. 
 
 Nevada. — In Wheeler v. Schad, 7 IsTev. 204, the burden 
 of a covenant to share the expenses of repairs of a mill-dam 
 was held not to run, for the reason that it was made too long 
 after the grant of land for it to be one transaction. There 
 is little doubt, therefore, that in a proper case, the burden 
 of covenants will run in Nevada. 
 
 Missouri. — Exactly what is the Missouri law may be 
 doubted. In Wiggins Perry Co. v. Chi. & Alton Ey. Co., 73 
 Mo. 389, the plaintiff had covenanted with the defendant's 
 assignor, the assignment to defendant being in contempla- 
 tion, and the covenant expressly to be binding on the de- 
 fendant. The court held that the defendant could not be 
 bound by the covenant as a running burden, but was liable at 
 law on the contemplated obligation. (See p. 190.) In Huling 
 V. Chester, 19 Mo. App. 607, on the other hand, the burden 
 of a party-wall agreement between adjoining landholders was 
 held to run against an assignee. The position of the appellate 
 court that a covenant can run at law was reiterated in Poage 
 V. Wabash Ey., 24 Mo. App. 199 ; and compare Miller v. 
 ISToonan, 12 Mo. App. 370. But in Sharp v. Cheatham, 88 
 Mo. 498, the Supreme Court again held that the burden of 
 covenants would not run at law so as to enforce a party-wall 
 agreement. It was enforceable in equity, however; as was 
 
166 THE EUITNIlsrG OF BENEFITS AND BUEDENS 
 
 similarly held of restrictive covenants in Coughlin v. Barker, 
 46 Mo. App. 54. 
 
 In Hilton v. Ey., 25 JMo. App. 322, the agreement to fur- 
 nish a pass for life of the grantor to a railway of right of 
 way was held not to bind a purchaser of the railway at mort- 
 gage sale. 
 
 Colorado. — In a recent case, Hottell v. Farmers' Protec- 
 tive Assn., 53 Pac. Eep. 327, the Colorado Supreme Court 
 held that the burden of a covenant by the grantor of a grain 
 elevator and water power that the grantor would not use the 
 water for the purpose of running a mill on the reserved land 
 unless there was enough for the grantee also, ran with the 
 land and bound the assign of the covenantor. 
 
 Ohio. — In three states the law is settled that the burden 
 of covenants will not be enforced out of equity. But of 
 these Ohio holds that in equity relief is not confined to re- 
 strictive covenants. In MithofF v. Hughes, 5 'Ohio Circ. Ct. 
 120, the burden of a party-wall agreement was enforced in 
 equity; and in Ry. v. Bosworth, 46 O. St. 81, a covenant to 
 fence was said to be unenforceable against an assignee except 
 in equity, although the case was merely the refusal to allow 
 action at law. Compare also Hickey v. By., 36 IST. E. Eep. 
 672 ; Walsh v. Barton, 24 Ohio St. 28 ; Hall v. Geyer, 14 
 0. C. C. 229. And in Goudy v. Goudy, "Wright 410, a cove- 
 nant by a son to render his father support, inserted in the 
 deed passing the land to the son, was held to charge the land 
 in the hands of the son's heirs. 
 
 New Jersey. — It is probably the law in Wew .Jersey that 
 the burden of covenants will not run at law. The question 
 has never been decided precisely in an action at law, but 
 the language in several cases, and the common custom to sue 
 in equity in that state, seem to indicate that there is not much, 
 room to doubt the condition of the law. In ISTational Bank 
 of Dover v. Segur, 39 JST. J. L. 173, the court allowed the 
 benefit of a covenant to run because it was a benefit ; and in 
 
WITH FEE ESTATES IN MODERN LAW. 167 
 
 Brewer v. Marshall, 18 K J. Eq. 337, same case, 19 IST. J. 
 Eq. 537, the court refused to allow the burden of a covenant 
 to be enforced in equity as a burden enforceable against the 
 assignee personally. It is probable, moreover, that the court, 
 relying upon the customary soundness of the English de- 
 cisions has confined its remedies to cases of restrictive cove- 
 nants. Coudert v. Sayre, 19 Atl. Eep. 190 ; DeGray v. Mon- 
 mouth Beach Clubhouse Co., 15 IST. J. Eq. 329. 
 
 Virginia. — In Tardy v. Creasy, 81 Va. 553, the court 
 refused to enforce in equity a restrictive covenant against 
 all business, on the ground that it was in restraint of trade ; 
 but they clearly expressed the opinion that no pure covenant 
 could be made to run at law, so that Virginia may be con- 
 sidered in accord'with English law. 
 
 It is seen then that the American law may probably be 
 stated as allowing the burden of covenants to run with the 
 land; and in the previous chapters it has been attempted to 
 prove that such a condition of the law is not historically in- 
 correct. But it is suggested that most of the American 
 cases sustaining the Common Law running of burdens can be 
 distributed under two or three heads, and that these are little 
 more than the legal recognition of equitable charges; so 
 that it would be stretching the law to say that burdens of 
 covenants generally can run where they are properly created 
 and concern the land. This requires some investigation. One 
 class of cases involves covenants to pay ground rents, — chiefly 
 Pennsylvania cases. These rents, of course, could have 
 been granted rights and are a charge upon the land; so ad- 
 mittedly it will not do to place too much reliance upon the 
 enforcement of the collection of the rent by actions of cove- 
 nant. Another class of cases involves covenants to fence; 
 and if there was such a thing as a spurious easement imposing 
 the burden of fencing, those cases are eliminated. Still an- 
 other class of cases involves party-wall agreements ; and these, 
 it is argued, are charges upon the land, which, though hardly 
 
168 THE EUN'H"IH"G OF BENEFITS AND BUEDENS 
 
 assignable to any particular Common Law right, may never- 
 theless be called an illogical exception to Common Law prin- 
 ciples in so far as they are enforced at law, and so should 
 not be taken as ground for saying that covenants generally 
 can run. Covenants to allow streets, like Dailey v. Beck, 4 
 Clark 58 ; covenants to repair dams, like Home v. Miller, 136 
 Pa. 640 ; covenants to allow profits, like Morse v. Aldrich, 
 19 Pick. 449 ; covenants to pay fees, like Peirce v. Kneeland, 
 16 Wis. 672; covenants to furnish more land, like Carson v. 
 Percy, 57 Miss. 97, — in short, any covenant amounting to an 
 obligation to furnish money for a purpose which will benefit 
 the other land, are embraced in the class of cases which 
 involve charges upon the land, like the party-wall agreements. 
 
 In discussing the running benefits it was shown how diffi- 
 cult it is to evolve a sound theory by which these last charges, 
 granting that they are equitable charges upon the land, can 
 be enforced on principle at Common Law; so it will have 
 to be admitted that if the burdens of covenants do not run 
 generally, these cases constitute an anomalous exception to 
 Common Law principles. 
 
 But the reasoning of none of these classes of American 
 cases thus eliminated is based upon any idea that burdens 
 of covenants cannot run as legal obligations, as may be seen 
 from the general abstracts of the cases given in the preceding 
 pages ; so if these covenants run for some special reason, and 
 if the general doctrine is to be abandoned, that special reason 
 must appear from older law than the American judges seem 
 to have taken for their premises. But the first part of this 
 essay was devoted to proving that there was no settled old 
 law which would prove that the burdens of covenants could 
 not generally run with land; indeed, it was attempted to 
 prove the affirmative that burdens could generally run with 
 land, and it is not necessary here to rehearse the premises by 
 which the conclusion was reached. It would therefore appear 
 that even if the American cases could all be classified as 
 
WITH FEE ESTATES IN MODBEN LAW. 169 
 
 ■equitable charges upon the burdened land enforced by actions 
 at law, there is not sufficient ground to say that they are 
 enforced as anomalies, and to deny that they are mere Com- 
 mon Law covenants which from time immemorial have run 
 with land as Common Law rights. 
 
 But in fact the basis for the law of covenants is even 
 stronger than this. By examination of the American cases 
 it appears that they are not all readily classified under rents, 
 easements of fencing, and charges upon the land involving 
 the obligation to sustain an outlay of money. A large pro- 
 portion of them involve obligations which cannot be ex- 
 plained as money charges upon the land. Thus in Bald Eagle 
 Valley Ey. Co. v. Mttany Valley Ey. Co., 171 Pa. 284, the 
 covenant was to give all the traffic of a land company to a 
 particular railway. In Avery v. Ey. Co., 106 IST. Y. 142, 
 the obligation was to leave an opening in a fence. Halle v. 
 Newbold, 69 Md. 265, involved a covenant as to the particu- 
 lar sort of building to go upon the land. Gilmer v. Ey. Co., 
 79 Ala. 569, enforced a covenant by the company to put a 
 station on the land in question. And the mind at once recurs 
 to the numerous cases involving restriction as to the use of 
 land, such as refraining from the sale of liquors, or agree- 
 ments not to set a house beyond a fixed line. Eestrictive 
 covenants have found escape from the general question 
 through the modern English doctrine of "equitable ease- 
 mients," and will be discussed in a future chapter, but the 
 other covenants can certainly not be called easements in any 
 sense, as they are not passive ; so they must confirm the con- 
 clusion that in America generally the burden of covenants 
 can run with land, as a pure Common Law right. 
 
 But the English and the American conditions of the law, 
 contradictory as they seem to be, have not yet been contrasted 
 Tinder a considei'ation of the practical advantages that attach 
 to the one or the other. If the English law is really the 
 wisest for present use, then there should be no remonstrance 
 
170 THE EUNNIITG OF BENEFITS AlTD BUEDENS 
 
 against its adoption in an undecided jurisdiction, even though. 
 it might be thought historically incorrect. And if it can be 
 clearly proven the wisest, there might be good reason to at- 
 tempt to set aside the common American law in jurisdictions 
 where that has become well nigh settled. But if the Amer- 
 ican law has the more to recommend it, to those believing it 
 nearer sound historically there will be greater satisfaction, 
 in seeing it extended over new jurisdictions; while if it is. 
 not clearly unwise it will be nevertheless with great hesitancy 
 that it is attacked where it seems now accepted. 
 
 The wisdom of the English law was first maintained by 
 Lord Brougham in Keppell v. Bailey, where he noted the 
 undesirability of encumbering titles so as to impede their 
 ready transfer. The tendency of modern times has been to 
 relieve landed property of any bonds which restrict its trans- 
 ferability. Thus the principle of the rule against perpetuities 
 is the restriction upon the rise of future interests, to occur 
 at some unsettled future time, and thus tending to impare 
 the freedom of title. So the rules against unreasonable and 
 impossible conditions which would tend to create forfeitures 
 subsequent to the vesting of estates. And so especially is te 
 be remembered the impossibility in England of putting re- 
 straints upon alienation generally, so as to limit a man's- 
 responsibility for his indebtedness. The early recognition, 
 of fines and recoveries to avert the inability to alienate es- 
 tates-tail militated in the same direction ; and the never-to-be- 
 forgotten Statute of Uses, instituted to avert the accumula- 
 tion of estates not transferable and not attackable by the 
 ccftisent of the real owners themselves. 
 
 Another reason assigned by Lord Brougham, following- 
 really as a corollary from the former, is the unwisdom of 
 allowing lands to fall upon innocent purchasers fraught with 
 burdens, in many instances great, and throwing obligations 
 upon the owner which he neither contracted for, nor was per- 
 haps prepared to assume. 
 
WITH FEE ESTATES IN MODEEN LAW. 171 
 
 Of course such reasoning is strong, but it presents but one 
 side of the question. It may be noted first that the rule 
 against perpetuities and almost every evolution tending to 
 the freedom of property, is a case where the restraint was 
 imposed merely on the judgment or caprice of the owner 
 who created it. It limits the estate for no creation of right 
 to another estate. Those rules were invented against re- 
 straints which limit the usefulness of one holding without 
 correspondingly enlarging the usefulness of anothet. Such 
 is not the case with covenants. In short, while it is believed 
 that a covenant running is not an easement, the recommenda- 
 tion for covenants and for easements would seem the same; 
 and the arguments used against covenants have never brought 
 the law of easements into disrepute. But covenants, more- 
 over, do not present the same problem as other restraints 
 upon the free use of property. When the usefulness of the 
 covenant is over, its obligations fall at once into a dead letter. 
 As an action at law the damages must in time adapt them- 
 selves to the nominal injury ; and for an action in equity, the 
 court may either resort to the interpretation of the covenant 
 as being intended to end with its usefulness (see Landell v. 
 Hamilton, 175 Pa. 327), or more scientifically, may refuse 
 to command or enjoin where the enforcing of the order would 
 be more equitable than the breach of the covenant. Landell 
 V. Hamilton, 175 Pa. 327 ; (but cf . Hills v. Miller, 3 Paige 
 254); Sayers v. CoUyer, 24 Ch. D. 180, 28 Ch. D. 103; 
 Knight v. Simmonds, [1896], 2 Ch. 294, that the covenant 
 will not be enforced if the purpose no longer survives. 
 
 The other point of Lord Brougham, though not so iar- 
 reaching, has more practical strength. If it be assumed that 
 the burden runs without notice, then the purchaser, on being 
 made liable to the covenant, has the sole resource of return- 
 ing upon his grantor under his covenant against encum- 
 brances. That the burden of such covenants is an encum- 
 brance upon the title, it seems unreasonable to doubt, and 
 
 13 
 
172 THE BUSTJN'ING OF BENEFITS AlTD BUKDENS 
 
 it has indeed been generally so accepted. Snyder's License, 
 2 Pa. Dist. Ct. 785 ; Batley v. Foederer, 3 Pa. Dist. Ct. 167; 
 Bronson v. Coffin, 108 Mass. 175 ; Eaynor v. Lyon, 46 Hun 
 227; Mohr v. Parmalee, 43 N. Y. Super. Ct. 320; Fresno 
 Canal Co. v. Dunbar, 80 Cal. 530 ; Harsha v. Eeid, 45 K 
 T. 415 ; Guentzer v. Juch, 4 IST. Y. Supp. 39 ; Halle v. New- 
 bold, 69 Md. 265; Jeffries v. Jeffries, 117 Mass. 184; 
 Hatcher v. Andrews, 5 Bush 561. In Clement v. Burtis, 121 
 IST. Y. 708, apparently contra, the court held the covenant 
 not to erect a nuisance was no burden, as it imposed no 
 greater duty than the law imposed anyway. 
 
 But however this remedy may prove inefficient in par- 
 ticular cases, the English law is not without a parallel. In 
 England, where there are no general laws for recording mort- 
 gages, the purchaser may buy land subject to similar burdens 
 in utter ignorance of the obligation he has assumed. The 
 chagrin in either case is the same, and there is no reason 
 for the law to be different. The problem brings us back to 
 the conclusion reached in the previous chapter in the discus- 
 sion on proper parties. In every case the land is the debtor, 
 and the only question is who shall be its surety, the grantor 
 or the grantee. 
 
 But are there not positive advantages to be found in the 
 running of covenants ? It would seem that they are of ines- 
 timable value in apvportioning, and regulating and insuring 
 the proper use of land granted or retained. Nor can this 
 always be attained by the mere auxiliary grant of an ease- 
 ment. Where a mill site is granted, and water rights added, 
 how else than by covenants can the most convenient use be 
 regulated? or the division of repairs at the proper time be 
 insured to grantor and grantee ? Consider the convenience 
 of the covenant in the party-wall agreement to pay the pro- 
 portionate cost of the wall upon user, without the necessity 
 of resorting to any doctrine of quasi-contract to compel the 
 proper remuneration for benefits gained. The universal ac- 
 
WITH FEE ESTATES IH" MODEEN" LAW. 173 
 
 ceptance of the permanence of restrictive covenants has 
 showed the benefit to property in enforcing their burden.^ 
 But the vast number of active obligations to be imposed upon 
 the covenantor, and falling without what are ordinarily 
 classed as easements, gives testimony of the advantages to 
 be gained by the wise exercise of their use ; while the gradual 
 development of the notion that they must touch or concern 
 the land, may be and has been so easily handled that the 
 opportunity for such covenants to be used as a sword is in- 
 frequent indeed. And we have seen how their operation, 
 when their usefulness has ceased, may be so completely re- 
 duced as to render them practically nil — an advantage not so 
 readily availed of in the case of granted easements. 
 
 Upon the whole, therefore, it is believed that the American 
 law is probably right that the burden of covenants should 
 run with the land ; and in reaching this conclusion it is grat- 
 ifying to feel that it follows the conclusion of that great Eng- 
 lish student of real property. Sir Edward Sugden, Lord St. 
 Leonards, V. & P., 14 ed., p. 496. 
 
 1 It has not been thought to the point to include in this summing 
 up of the reasons why the burdens of covenants in general should 
 be allowed to run with land at law, the reasons set forth in the 
 preface why covenants maintaining particular uses of property 
 should be recognized as advantageous limitations upon the use of 
 property. Such limitations are all restrictive covenants, and pro- 
 vided their binding effect is recognized, it is generally immaterial 
 whether they are enforceable at law or are enforceable only in equity. 
 The reasons here given are directed to support the running of those 
 burdens, which not being in their nature restrictive, could not run 
 if not recognized in law courts. 
 
CHAPTER VIII. 
 
 THE PAETIES AFFECTED BY COVENANTS IN MODBEN LAW: 
 AND, INCIDENTALLT, OF THE EXTINGUISH- 
 MENT OF COVENANTS. 
 
 It was shown in the chapter on the Origin of Covenants 
 that they probably are derived from warranty, and that they 
 are not a species of easement ; so that they should run with 
 land in the way that warranty ran, and should not be re- 
 garded as a part of the land to which they are attached, as 
 easements are regarded as a part of the land. This conclu- 
 sion was reached only as a result of investigating authorities, 
 however, without attempting to supply the reasoning by 
 which the early lawyers followed the analogy between cove- 
 nants and warranties in working out effects. But now that 
 the modern law has been examined, and it has been shown 
 that in America at least this running covenant is still rec- 
 ognized, and that the benefits and burdens run with the 
 land as in early law; it becomes necessary to take up again 
 the question of the origin of covenants, whether in warranty 
 or in easement, and this time to study the reasons which 
 would lead to their having the effect of the one or the other, 
 so as to see their effect in modern law. If covenants which 
 run with land are derived from warranty, then it would be 
 more satisfying to know how the analogy in their operation 
 is to be worked out so as to affect mere privies in estate, and 
 not merely prove that the weight of ancient and modem law 
 has so established it. 
 
 This point was not involved in the study of leases, since 
 the Statute of 32 Henry VIII expressly extends the effect 
 
 174 
 
EXTINGUISHMENT OF COVENANTS. 175 
 
 of covenants in leases to all subsequent holders, whether in 
 privity of estate or not. 
 
 Unless these covenants are in the nature of easements, 
 then, they run only by privity of estate. By privity of es- 
 tate is meant succession by the assignee to the estate of his 
 assignor. 
 
 Originally the word seems to have indicated privity in the 
 creation of the estates with which the covenants weri to run. 
 It indicated the granting of land, being an assimilation to 
 tenure ; for before the Statute of Quia Emptores there was 
 a privity of estate between every grantor and grantee. As 
 a feature of subinfeudation the land might escheat to the 
 grantor, and therefore he always possessed an interest in 
 the land granted. There was thus a privity between the 
 persons. This seems still the law in IS'ew York, where the 
 Statute of Quia Emptores seems never to have been in ef- 
 fect. Van Eensellaer v. Smith, 27 Barb. 437. It is evi- 
 dently this notion of privity which gave rise to the 
 arguments that the grant of an easement would not be 
 enough to make covenants to run with two estates, and so 
 a fortiori that the covenant by a stranger could not run. 
 And this notion of privity meaning the passing of land be- 
 tween the parties to the covenant has had many supporting 
 decisions in America. Hurd v. Curtis, 19 Pick. 459, decided 
 that there must be such a privity of estate between the cove- 
 nanting parties ; and the Maine Court held similarly in Lyon 
 T. Parker, 45 Me. 474. Both these decisions quote Lord 
 Kenyon's statement in Webb v. Eussell, 3 T. K. 402, to that 
 effect. It is apparent that such was the rise of the notion 
 in England that the covenant would not run with rent as is 
 shown by Lord EUenborough in Milnes v. Branch, 5 M. & 
 Sel. 411, where he said: "I do not see how the analogy, 
 as regards covenants that run with the land, is to be ap- 
 plied unless it be shown that this is land. . . . The 
 Stat. H. VIII recites that at Common Law, such only as are 
 
176 PARTIES AFFECTED BY COVENANTS IN MODEEN 
 
 parties or privies to any covenant can take advantage of itt 
 here is neither privity of contract nor privity of estate; the 
 rent is reserved out of the original estate." 
 
 But we shall see that the law now allows covenants to 
 run with easements, and as the contrary was the mere ac- 
 cident in express warranty rather than the law, intention 
 still being the operating element, it must be accepted that 
 privity of estate now merely means succession to the estate 
 to which the covenant attaches. But the succession to the 
 estate must come by inheritance or assignment to the party 
 who seeks to enforce the covenants ; and whatever may have 
 been the court's opinion in Chudleigh's Case, 1 Co. K. 122b, 
 as explained by Mr. Justice Holmes (see H. C. L., p. 399), 
 and whether that was based on Pakenham's Case, and 
 whether Pakenham's Case was a misconception or not, the 
 law now in England and America is that there must be this 
 succession in estate. Green v. Creighton, 7 E. I. 1 ; Winfield 
 V. Henning, 21 N. J. Eq. 188 ; Waterbury v. Head, 12 N. 
 Y. St. Hep. 361 (also requiring privity between covenant- 
 ing parties) ; Woolescroft v. Norton, 15 Wis. 198 ; By. v. 
 Bosworth, 46 O. St. 81 (semble) ; Wheeler v. Schad, 7 Nev. 
 204; Brewer v. Marshall, 18 N. J. Eq. 337; Trustees of 
 Columbia Col. v. Lynch, 47 How. Pr. 273; Kunckle v. 
 Wynick, 1 Dall. 305. In Brew v. Vandeeman, 6 Heisk 433 ; 
 Hills V. Miller, 3 Paige 254; Hazlett v. Sinclair, 76 Ind. 
 488; and Fresno Canal Co. v. Dunbar, 80 Cal. 530, the 
 courts pronounced the rights easements, although created by 
 covenants; and so these decisions may appear contra; but 
 they involved regular subjects of easements, namely, ways 
 and in one case fencing. So not much can be drawn from 
 them as to -the necessity of ■privity in cases clearly involving 
 covenants. 
 
 Privity has been discussed in connection with leases, as 
 most of the cases have involved that subject; but the full 
 breadth of the term may well be reiterated, as indicating that 
 
LAW : EXTIITGUISHMENT OP COVENANTS. 177 
 
 all who accept the same estate are privies. Thus purchasers 
 at mortgage sale, can enforce the covenants. See the cases 
 involving Leases, and see also King v. Dickeson, 40 Ch. D. 
 596. And mortgagees, being supposed to take the title of 
 the mortgagor, get the benefit of being privies in estate and 
 can sue upon the covenants. Bald Eagle Valley Ey. Co. v. 
 Wittany Valley Ey. Co., 171 Pa. 284. So it would seem 
 that privity of estate exists though the holder intended to 
 buy a different title, and he can sue on the covenants ; for in 
 Conrad v. Smith, 5 W. JST. C. 402, the purchaser at a tax 
 sale was held to be bound by the covenant, unless the title 
 he bought was better than that of the former owner. 
 
 How far the estate may be severed is not so important a 
 question here as in the case of leases, for the question seems 
 hardly ever to have arisen in connection with fee estates. In 
 several instances lessees as assigns of partial interests have 
 enforced benefits of covenants which would run to the owner 
 of the fee, and have generally sued in their own names ; but 
 as the covenant is really the right of the owner of the fee, 
 and as we have seen from the early law that the lessee for 
 years is the mere holder of his reversioner's title, the proper 
 way would seem to be for a lessee for years to sue in the 
 name of the fee owner. This was done in one case, Carson 
 V. Percy, 57 Miss. 97. In Equity, however, the person really 
 at interest could bring the bill, and the English Cases where 
 the lessee sued in his own name were all in equity. 
 
 Where the land is severed, the intention must determine 
 whether the covenant went to all the estates or not. Thus 
 in Peden v. Ey., 78 la. 131, the benefit of a covenant to keep 
 water from land, was held to run to the vendees of each 
 part of the land. And in Bronson v. Coffin, 108 Mass. 175, 
 the burden of a covenant to fence, ran only to that part of 
 the land where the fence ran. See also Walsh v. Barton, 24 
 O. St. 28. Party-wall covenants and building restrictions, 
 when instituted by land companies, always run of course to 
 
178 PAETIES AFFECTED BY COVEIfANTS IN MODEEN 
 
 vendees of the various lots, which are in fact the result of 
 severing ; but it was necessary to prove an intention that the 
 covenant should run in Dana v. Wentworth, 111 Mass. 291. 
 
 So far as the benefit of covenants is concerned, then, the 
 fact and its reason are thus demonstrated that the running 
 is probably confined to heirs or assignees in privity of es- 
 tate. But as to the burden more examination is necessary. 
 
 If this covenant binds the land, as has been so repeatedly 
 said, and if the land is primarily liable, why is not the cove- 
 nant the same as something granted out of the land, so as to 
 affect it in every one's hands, whether in privity or not? 
 The question is rudimental, and for an answer it is neces- 
 sary to go back a little. It has been seen to be probably true 
 that the heir was held bound by a sale and a warranty merely 
 because the ancestor wished it so, and so by a mixture of 
 cause and effect the warranty was held to bind the land. 
 Bracton says that it bound the land, and this must have con- 
 tinued law, because we have seen that the younger sons in 
 gavelkind inheritance could be vouched to their inheritances, 
 though the Common Law warranty fell only on the eldest son. 
 This was all evidently the outcome of confusion and no 
 notion of charge on the conscience, because very much later 
 clear trusts did not bind the conscience of a purchaser with 
 notice. Anon, Keilway, 46 B. pi. 5 ; Anon, note Brooke, IT. 
 C, March Ti-., pi. 95 ; nor did they bind the heir of a trus- 
 tee. Y. B. 8 Ed. IV, 6. And see Ames' Oases on Trusts, 
 2d ed., p. 282, et seq. ; 345 et seq. But Bracton wrote all 
 this before the Statute of Quia Emptores, so subinfeudation 
 still existed. Therefore the lord by escheat whom Bracton 
 thought bound, was probably not the lord of the whole 
 seniory, but only a higher tenant, himself, and as the tenant 
 ield of him after the escheat it was not unreasonable that 
 the tenant's rights should not be prejudiced.^ And the 
 
 1 Compare Pol. & Mait., Vol. 1, p. 261, that on the escheat of the 
 feud a subtenant's burdens were not increased. 
 
law: extinguishment of covenants. 179 
 
 same would be true of the lord's assign if he was assign of 
 the seniory, and not assign merely of other parts of the 
 land/ for then the assign would be in the same position as 
 the former lord. But the law did not then make nice dis- 
 tinctions, and if the warranty bound in the one case, it 
 might well bind in the other. And hence the heir in gavel- 
 kind who held land must hand it over as having been part 
 of the estate from which the covenantee's land was cut. 
 
 There is, however, a great difference between these cases 
 and that of a disseisor. The law of warranty, however 
 twisted about, is always a law of contract based upon a per- 
 sonal relation, while a disseisor is a mere deforcer who as- 
 sumes or acknowledges no obligations. That the tenant who 
 has suffered by a disseisor's entrance upon the land, should 
 have claims against the disseisor is just enough, and in the 
 modern days of equity, there would be no doubt that he 
 would get his rights, but not on a Common Law principle. 
 The man who has a claim on land for a warranty would 
 certainly not be better off than the owner of a rent charge 
 out of the land. If the latter is disseised of his rent, he 
 must resort to such measures as the law allows to regain his 
 so-called possession of it, for he no longer has a claim on the 
 thing, but a mere chose in action. In this, however, even 
 the owner of a rent, is better off than the warrantee. For 
 granted that the warrantee has no longer a claim on the land, 
 he has nothing unless it is the right to have his warrantor 
 first eject the disseisor and then turn over part of the bound 
 land. 
 
 There appears to be no case of warranty enforced against 
 a disseisor, and as the situation must have occurred, the ab- 
 sence of litigation must point to the common opinion that the 
 disseisor was not bound. If covenants, then, ruu only by 
 analogy to warranties the law must be accepted as probably 
 
 1 That a whole estate might be assigned before Quia Emp. See 
 Pol. & Mait. Hist. Eng. Law, Vol. 1, p. 310 et seq. 
 
180 PARTIES AFFECTED BY COVENANTS IN MODEEN 
 
 correct in its assumption that privity of estate is necessary 
 on both sides of the covenant, and only successors in title 
 are bound by their obligations. 
 
 But even a greater difficulty arises in the question how far 
 the burden of the covenant is a personal obligation, to be 
 entirely fulfilled irrespective of the value of the land. The 
 early warranty perhaps bound the heir whether he had assets 
 or not; — Blaekstone says because it was assumed that the 
 ancestor would not die without leaving some assets.-^ But 
 whether that be true or not, it became law very early that 
 the heir was bound only to the extent of land descended, 
 whether the particular charged land, or other land from the 
 warranting ancestor. At any rate lands obtained from other 
 sources needed not be used f and there is no doubt that such 
 was the later law. If, therefore, covenant is to be enforced 
 by analogy to warranty, how can it be enforced against as- 
 signs as a personal claim unlimited by the value of the land ? 
 Or if enforced as such a personal claim, how can we say that 
 is founded upon warranty ? The answer must rest on two- 
 points, however their soundness is to be attacked. First, the 
 restriction of the liability in warranty must have rested on 
 the predominance of the idea in later days that warranty 
 was a mere action to enforce a claim on particular land and 
 for damages, and the sense of justice rebelled at holding a 
 successor to more than he received. The Statutes DeBig- 
 amis and Gloucester we have seen were based on the abuse of 
 the personal character of warranty, a character which in 
 particular cases they destroyed; so though warranty may 
 have been long regarded as only a lien ordinarily, as Brac- 
 ton's citation from 3 H. Ill would indicate (Of. Bract, f. 
 SSTb), yet warranty may not always have been so limited. 
 But secondly, it must be remembered that the law of cove- 
 
 1 2 Bl. Com. 301, Co. Lit. 373, Lit. 709. 
 
 2 Bracton 394b, citing Martin Pateshull's Case, 3 H. Ill, and see 
 supra, p. 40, for the establislied later law in accord. 
 
law: extiitguishment of covenants. 181 
 
 nants probably arose before the personal nature of the con- 
 tract of warranty fell out of sight, so when their analogy to 
 the covenant of warranty caused other covenants to run with 
 land those other covenants may have been treated as running 
 personal obligations because a covenant was a personal ob- 
 ligation, although voucher to warranty and therefore cove- 
 nant for warranty had become in practice a real and not a 
 personal action. This seems the only way to explain why 
 covenants running with land should carry obligations giving 
 a broader right than a mere right in rem. But in Fresno 
 Canal Co. v. Dunbar, 80 Cal. 530, the court held that the 
 burden of a covenant could not so run as to make an assign 
 personally liable, but constituted a lien upon the land which 
 could be foreclosed. The word "lien," however, is often 
 very loosely used on account of the frequency of statutory 
 claims termed liens ; and as there is no such thing as a lien 
 upon land in the Common Law, the claim referred to must 
 be an indorsement of the limitation of covenants in accord 
 with the law of warranty to the amount of assets received. 
 While it is believed that this is the only case^ taking this 
 position, it is remembered that the number of covenants is 
 very small which could involve by breach a damage greater 
 than the value of the property, so the point may not have 
 been often considered. 
 
 In Guentzer v. Juch, 4 IST. Y. Supp. 39, the court made 
 reference to the point in enforcing a party-wall agreement 
 and held that the property was primarily liable, though the 
 
 1 In Mott v. Oppenheimer, 135 N. Y. 312, in enforcing a party- 
 wall agreement, the court say: "Either the agreement was a com- 
 mon law obligation, personally enforceable by ordinary action, or it 
 -was an instrument which impressed with a lien the lands affected. 
 In either case the right to use the wall was absolutely granted and 
 the obligation to pay the value of the one half upon the premises 
 adjacent to those of the builder of the wall, when it was availed of, 
 if not personally assumed by the adjacent property owner, was en- 
 forceable against his land." 
 
182 PARTIES AFFECTED BY COVENAITTS IN MODERN 
 
 defendant, an eventual assignee, was personally liable for the 
 deficiency. So in Eisher's Executors v. Lewis, 1 Clark 422, 
 where the assignee of land charged with a ground rent had 
 reassigned the land to avoid liability from an impending 
 action, the court held him liable, saying that the defendant 
 could not in that way relieve himself of a responsibility al- 
 ready vested, else a secret assignment to an insolvent would 
 free him entirely. See also Hurley v. King, 2 C. M. & 
 E. 18. 
 
 It will always be noted, however, that the intention of the 
 parties is to make the land primarily liable, and the holder 
 is merely in the position of a surety. If therefore in Fisher 
 V. Lewis the assignor is compelled to pay the amount of 
 damages on the covenant, he should have his action over 
 against the holder of the land. For a fuller discussion of 
 this theory, reference may be had to the chapter on leases, 
 as in that connection more cases have occurred. It will be 
 noted, however, that the decision in Fisher v. Lewis rests not 
 on the notion of any personal warranty of the land after as- 
 signment, but upon a supposed fraudulent avoidance of re- 
 sponsibility accomplished by getting rid of the land. It was 
 assumed there, just as^ it has been assumed all along, that 
 the liability was not one of contract between the various as- 
 signees, but a Common Law liability appended to the pos- 
 session of the land and ceasing so far as the duty to the 
 covenantee is concerned the moment the property passes. 
 The doctrine of the case, then, is to regard the transfer as 
 void on account of fraud, but fraud not on one of the parties 
 to the transfer, but fraud upon the covenantee, who is sup- 
 posed, however, still to have an action against the original 
 covenantor as well as against the holder of the property at 
 the time of action brought.^ 
 
 1 It seems difllcult to discern any fraud in an assignee relieving 
 himself of a burden which came to him merely as holder of the land. 
 Journay v. Brackley, 1 Hilton 447; Johnson v. Sherman, 15 Cal.. 
 
LAW : EXTISTGUISHMElirT OF COVENANTS. 183 
 
 Of course if a right of action accrues while one person 
 holds the property, this right is not lost against him by his 
 assigning it over again, as it then becomes his personal obli- 
 gation aside from his proprietorship of the land. Thus in 
 Pfeiffer v. Matthews, 161 Mass. 487, where the plaintiff, 
 and A, had made a party-wall agreement, and the plaintiff 
 had built, A having assigned to the defendant and the de- 
 fendant to B, who built and then reassigned to the defendant, 
 again taking it back subject to a mortgage, the court held 
 the defendant not liable, but B who had used the wall. 
 
 In Lydick v. Balto. & Ohio Ey., IT W. Va. 427, the in- 
 teresting theory was laid down that covenants were negotiable 
 and were not affected by equities. See also Suydam v. 
 Jones, 10 Wend. 180. Of course there is no legal connection 
 between notes or bills and covenants, but the similarity in 
 the nature of each is at least striking. The right of each 
 new assignee of the covenantee is not the assignment of a 
 right, but is a new right arising from the nature of the ob- 
 ligation ; and of course, therefore, it is not barred by equities. 
 That they are negotiable, however, is not the proper way 
 to state it, for they are not until broken in the slightest degree 
 assignable apart from the land. 
 
 But the idea may well be of assistance in solving other 
 questions in the law of covenants which especially similate 
 bills of exchange. For instance, a covenant is extinguished 
 by the union of the covenantor and the covenantee in the 
 same person owning the land. See Post v. Weil, 115 E". Y. 
 361 ; Waterbury v. Head, 12 K T. St. Eeporter 361. But 
 the question is different where the covenantee has assigned 
 all or even part of the property for whose benefit the cove- 
 
 287 (lease cases); although the English Courts seem to have Indi- 
 cated a different opinion, Fagg v. Dohie, 3 Y. & C. 96; Hurley v. 
 King, 2 C. M. & R. 18. It is very clear, however, that the assignee 
 must transfer the title into some one else; he cannot by an attempt 
 at mere abandonment divest himself of liability. Bonetti v. Treat, 
 91 Cal. 223. 
 
184 PAETIES AFFECTED BY COVEH'AN'TS IH" MODEEN" 
 
 nant is made ; as then the covenant is not extinguished though 
 he regain the property burdened by the covenant. Thus in 
 Eaynor v. Lyon, 46 Hun 227, A had owned land and sold 
 part in lots to B who covenanted not to erect upon it build- 
 ings of a certain sort. Later A bought back those lots and 
 reconveyed them. On the question in equity whether the 
 lots were encumbered by the covenant, the court held that 
 they were, as the covenants were exacted as well for the 
 benefit of other lots sold since as for the part retained by A ; 
 and though these lots were regained, he could not release 
 those covenants. But in Keats v. Lyon, L. E. 4 Ch. 218, 
 under what appear to be exactly the same facts the English 
 Court of Appeal in Chancery came to the opposite conclu- 
 sion, not, however, rejecting the principles. They hold that 
 the running of the covenant's benefits depends upon the in- 
 tention of the original contracting parties, and under all 
 the circumstances they concluded that it was not intended 
 to run. That this conclusion rests rather upon a posteriori 
 developments than anything else is suggestive that it may 
 eventually lead to a rigid construction of intention to that 
 effect. "We think that an owner of land in the position in 
 which Sharp stood in the year 1842 can not be presumed to 
 have intended to fetter himself in the exercise of the power 
 which he indisputably possessed of dealing with the whole 
 of his estate as he thought fit; and as, notwithstanding the 
 sale of some portions of land, his power of dealing vdth 
 what he retained remained unaffected, it is, under the cir- 
 cumstances of this case, very difiicult to see how any distinc- 
 tion is to be drawn between his power of dealing with the 
 land so retained and with that which he resumed by the 
 purchase from Langton; and if it were to be held that a 
 mere conveyance of a small portion of the remaining land 
 amounts to evidence of such an intention on the part of the 
 vendor, the rule cannot be confined to conveyances in fee, 
 but must be extended to alienation for life and years ; and 
 
law: extinguishment of covenants. 185 
 
 the present case affords a remarkable instance of the in- 
 convenience which would result from such a rule, for as there 
 appear to have been some twenty conveyances of small pieces 
 of land, the concurrence of all these purchasers, and of all 
 persons claiming under them, would be necessary to any 
 ■such arrangement as that which was affected in 1846 ; and 
 as it would be extremely difficult if not impossible to obtain 
 the concurrence of all those persons, the practical result 
 would be to render a portion of the property inalienable ex- 
 cept under very onerous and depreciating conditions." — Per 
 Lord Justice Selwyn. 
 
 Perhaps the most interesting point, however, involved in 
 this discussion is the one whether the covenant can be extin- 
 guished as to one piece of the property and remain still alive 
 as to the rest. This question was not necessarily involved 
 in either of the cases just presented, as the question there 
 before the court was only whether the property was encum- 
 bered at all. Tet reference to the excerpt from Lord Jus- 
 tice Selwyn's opinion in Keats v. Lyon will show that he 
 thought such a state of affairs was probable, as it would seem 
 that the original vendor could release the covenant as run- 
 ning to the lands retained. The point goes to the essence of 
 covenants, and requires a decision upon their nature. The 
 covenant cannot be a single covenant with the first owner, 
 for his partial assignee can enforce it while he has the same 
 right left. And the assignee's right cannot be a new right 
 created after the covenant is made, for that would change 
 the contract. 
 
 I^or does it help matters to say that the covenant is one, 
 and that the first owner is merely barred from suing, for that 
 would be a personal defense, and in fact every successor 
 of his after the extinguishment is likewise barred. That 
 part of the covenant is clearly gone. 
 
 This, therefore, destroys the idea that covenants are ne- 
 gotiable, that is to say, that the nature of the instrument 
 
186 PAETIES AFPECTED BT COVE]SrAM"TS IB" MODERN 
 
 is a new right arising to each assignee on the designation 
 of the assignor. For aside from the utter lack of unity in 
 origin between the law of warranty and the custom of mer- 
 chants, the difficulty in hand presents itself. ISTo bill can 
 give two separate parties rights on the same obligation at 
 once, and extinguishment for once is extinguishment for all 
 time; whereas here one person's right is extinguished, com- 
 pletely, while another's is in full force. 
 
 One more supposition is left, that the covenant is an ob- 
 ligation to all future holders of the land, jointly or severally, 
 and each future holder can sue on his separate obligation or 
 extinguish it without affecting the right of his neighbor. 
 Who those future holders shall be is to be designated by the 
 original holder, and they have rights only if so intended. 
 To this, however, at least two difficulties present themselves. 
 First, the running of the burdens. As these cannot of 
 course depend upon designation they must depend upon 
 agency, and the impossibility of this was accepted as con- 
 sidered in the chapter on leases. Secondly, the designated 
 parties might not arise for many years if there were no im- 
 mediate new assignment, and therefore there would be noth- 
 ing to hinder the covenantor from cancelling their share 
 in the covenant; unless the extra contract be implied be- 
 tween, him and the owner that he do not cancel the "run- 
 ning" of the covenant, and such an additional contract would 
 make the assignee's means of enforcing the contract really" 
 the right of a beneficiary. 
 
 Upon the whole, therefore, it would seem that the principle 
 must be a peculiarity of the Common Law explained only by 
 analogy to warranty, and that in turn explained by the 
 feudal relation. 
 
 It is possible that a limit to the running of some cove- 
 nants may be found in the rule against perpetuities. Only 
 some covenants are affected because the rule is considered as 
 limiting only the future rise of hereditaments, and for the 
 
LAW : ESTINGUISHMENT OP COVENANTS. 187 
 
 covenant to be affected it must be something like a covenant 
 to sell property back again. The question is hardly germane 
 to this essay, and for a thorough investigation of the matter 
 reference must be had to some work exclusively devoted to 
 the working of that Kule ;^ but as this point has been brought 
 up in two conspicuous English Cases, it would perhaps be 
 amiss not to make some reference to them. In Birmingham 
 Canal Co. v. Cartwright, 11 Ch. D. 421, A, owning X and Y, 
 sold coal in X to B and covenanted, naming heirs and as- 
 signs on both sides, to sell X to B if he ever sold Y to anyone 
 else. B's assign seeks to enforce a specific performance of 
 this covenant against A's assign, and it was allowed, the court 
 holding that the right to obtain the land was not within the 
 rule against perpetuities as all the parties by uniting might 
 make a good title to the property, and so alienation .was not 
 restricted. But in London & South Western Ey. v. Gomm, 
 20 Ch. D. 562, where the covenant was that the grantee 
 would resell on demand, both the divisional Court and the 
 Court of Appeal disapproved the former decision on the 
 ground that the rule against perpetuities was offended by 
 the mere rise of the right in future beyond the proper time, 
 and as that was the case in these covenants the covenant was 
 void even though it need not be a hindrance to alienation. 
 So it must be accepted that the English Law, and probably 
 our own on the same interpretation of the rule, would hold 
 that these covenants may sometimes be void on account of 
 the rule against perpetuities. 
 
 1 See Gray, Rule against Perpetuities, sec. 330. 
 
CHAPTER IX. 
 
 OF THE SEVEEAL EEQUIEEMENTS OF COVENAITTS. 
 
 Section 1. Of Seals, and the Running of Parole Agreements and 
 Stipulations for the Grantees in Deeds-poll. 
 
 Sec. 2. Of the Necessity of a Grant between the Parties; and of 
 the Separate Execution of the Covenant near the Time of Such Grant. 
 
 Sec. 3. Of the Character of the Grant, whether of Corporeal or 
 Incorporeal Hereditaments. 
 
 Sec. 4. Of the Matter of Covenants. 
 
 Sec. 5. Of the Necessary Wording of Covenants and their Con- 
 struction; and of the Naming of the Parties. 
 
 SECTION 1. 
 
 OF SEALS^ AND THE EUNNIISTG OF PAEOLE AGEEEMENTS ANT) 
 STIPULATIONS FOE GEAJSTTEES IN DEEDS-POLL. 
 
 As the obligation of covenant is one of very early origin 
 it is not surprising to find it still lav? that a covenant must 
 be under seal; and in this there is no difference between 
 covenants in leases and covenants vehich run with larger es- 
 tates. Exactly why agreements not under seal should not 
 bind successors to the estate which they concern, and run 
 like covenants, it is hard to say. When covenants were first 
 instituted they were put under seal because all obligations 
 were under seal, and they could not have bound even the 
 agreeing parties without being so. But since the develop- 
 ment of the law of simple contract, there is no occasion to 
 seal what would bind the contracting parties anyway, un- 
 less it must be done to let the agreement run. The quality 
 of running with land was earned for express warranties and 
 covenants at a time when such obligations were naturally 
 
 188 
 
OF THE SEVEEAL KEQUIEEMENTS OF COVENANTS. 189 
 
 •under seal, and the custom survived the necessity until the 
 custom has probably made the seal again a necessity, though 
 now without a sound reason. It is well known that there 
 was no necessity for putting a deed under seal except to pre- 
 serve the warranties contained in it ; but as formal warran- 
 ties, which may have been peculiar obligations in requiring 
 seals, gave way to covenants for title even before the simple 
 contract was developed, there would seem no reason now 
 why the land, the assurance of title, and any agreement con- 
 cerning the enjoyment should not pass from party to party 
 without need of a seal. "Cessante ratione, cesset ipsa lex." 
 
 But the courts might well hesitate to make so radical a 
 change in the law after centuries of custom; so at this day, 
 it would be exceedingly risky to execute a covenant without 
 putting it under seal. Moreover, it would seem that the 
 agreement must be clearly undertaken by the covenantor and 
 signed by him ; so that the instrument must be ordinarily an 
 indenture signed by the grantor of the property and the 
 grantee if a covenantor. Yet some American cases have 
 gone very far in enforcing stipulations in deeds-poll as ef- 
 fective covenants by the grantee. It is true that in most of 
 these cases the courts said that the grantee by accepting the 
 deed-poll which contained the stipulation, ratified it and 
 became a party to the transaction; so that it is possible, 
 though hardly probable, that the courts did not realize that 
 they were enforcing merely a parole agreement, so far as 
 the grantee was concerned. 
 
 It is hardly necessary to point out to the reader that the 
 fact that the stipulation was in writing and not verbal, had 
 nothing to do with whether it was technically a parole agree- 
 ment. If an agreement is not sealed, it is parole, even 
 though written out ; the writing merejy constitutes unchange- 
 able evidence of what the agreement was. Standen v. Christ- 
 mas, 10 Q. B. 135, for instance, discussed in the chapter 
 
190 OF THE SEVERAL EEQUIEEMENTS OF COVEITAlSrTS. 
 
 on leases, was recognized as involving a parole lease, even 
 though, the lease was written out — it was not sealed. 
 
 Of course it would make no difference between the grantor 
 and the immediate grantee whether the latter was bound by 
 a covenant which he signed, or by a stipulation in a deed- 
 poll, the acceptance of which constituted a ratification of 
 agreements; but the grantee's assign is another person en- 
 tirely, and the general idea has always been that the grantee 
 has no authority in law to bind future assignees by the mere 
 acceptance or ratification of agreements without signing or 
 sealing them. But let us examine these cases. 
 
 In Countryman v. Deck, 13 Abb. IST. C. 110, A, owning 
 land, sold part to the defendant's assignor, conveying by a 
 deed-poll in which it was "provided always that the party of 
 the second part should fence and keep fenced the premises 
 above described." Both assigned, and the question was 
 whether the grantor's assign could bring a bill for specific 
 performance against the grantee's assign. The court held 
 that the intention showed a covenant and that the covenant 
 ran. 
 
 As the grantee did not sign the deed, his agreement was 
 parole, and as his assign was not a party to that agreement 
 we have just seen that the assign's being held to the perform- 
 ance of the covenant would seem to sustain the running of a 
 parole agreement; for the action was to enforce perform- 
 ance, and not one by which his conscience might be charged 
 on account of receiving undue advantages, subjecting him to 
 refunding under a quasi-contract. 
 
 In Wiggins Ferry Co. v. Chi. & Al Ky. Co., Y3 Mo. 389, 
 the plaintiff granted with covenants to A Ey., the covenants 
 to be binding on the defendant who was to be assignee from A 
 Ry., of the property. The defendant then received by a deed 
 stipulating that it should be bound. The court held that the 
 covenant could not run with the land ; but the defendant was 
 bound because of the express contemplation that it should be 
 
OF THE SEVEEAL EEQUIEEMENTS OF COVENANTS. 191 
 
 bound, and that contemplation implied a promise, the court 
 thought. The action was at law for a breach of this promise. 
 The court very apparently did not base the action upon the 
 right of a third party to sue as beneficiary on the contract be- 
 tween A Ky. and the defendant ; and as it was expressly held 
 that the covenant did not run, it must have been held here 
 that the defendant took the property with a charged con- 
 science and became constructive trustee of the property. But 
 instead of being proceeded against by a bill for a reconvey- 
 ance of the property on account of his failure to carry out the 
 trust, it was assumed that the defendant was unjustly en- 
 riched by its possession; so he was called upon to pay the 
 value of the obligation, and this action was allowed at law.^ 
 It would seem that the ease is authority for this. But such a 
 conclusion would not allow the plaintiff to sue again for a 
 renewed failure to carry out the agreement to fence. 
 
 In Hickey v. Ey., 36 N. E. Eep. 672 (Ohio), the railway 
 had conveyed land to the defendant by a deed-poll on condi- 
 tion that the owner should perpetually maintain fences. The 
 defendant sold, and the assignee not having maintained the 
 fence, the railway sued the defendant for the breach. This 
 the court held could not be done, as the condition was that 
 the "owner" should fence, and the defendant was no longer 
 owner, but otherwise the deed-poll, on being accepted, bound 
 to its condition. 
 
 Again this seems sound enough as between the original 
 parties, but upon assignment it does not explain the liability 
 of the assignee of the grantee, as he is not a party to the 
 contract with the first grantor, and yet the grantor seeks to 
 hold him to a contract obligation, not to the obligation of a 
 condition. 
 
 In Maine v. Oumston, 98 Mass. 317, an action in contract 
 was allowed against the assignee of land charged with a 
 
 1 Cf. Martin v. Martin, 44 Kan. 295, where the proceeding was in 
 equity. 
 
192 OF THE SEVEEAL EEQUIEEMENTS OF COVENANTS. 
 
 party-wall agreement in a deed-poll. The court here ad- 
 mitted that covenant could not be brought, but said that by 
 the acceptance of a deed, the defendant "assumed the per- 
 formance of the condition or stipulation, from which the 
 law will imply a promise on which an action may be main- 
 tained." The action is either upon a contract implied be- 
 tween the plaintiff and the defendant directly, arising upon 
 the use by the defendant of the plaintiff's wall; or more 
 likely as the party-wall agreement imposed a fixed money 
 charge upon the land, whether legal or equitable, the action 
 is the enforcing at law of the fixed claim with which the 
 defendant's conscience is charged in equity, just as any 
 liquidated claim in equity may generally be collected by 
 some action at law. It is, therefore, evident that wherever 
 the original deed imposed upon the grantee who accepted it, 
 a distinct charge, which is estimated all the time as a liqui- 
 dated sum of money, due to another person, there is no dif- 
 ficulty in holding the person who accepts the deed to a 
 knowledge of this charge, which would be good in equity; 
 and any person who receives from him with such knowledge 
 would likewise be bound, whether he ever signed the deed 
 as grantee or not. Thus the agreement of a grantee to pay 
 for the party-wall when he used it is only an equitable 
 charge upon the land, of the value of half the party-wall, 
 payable when the owner should make use of the wall. And 
 so an injunction may be obtained on these agreements, re- 
 straining the defendant from building until he has paid for 
 his share of the wall. Lewis v. GoUner, 129 IST. Y. 227. 
 
 But when the original stipulation is to refrain from some- 
 thing, or is to do something, or is any sort of condition 
 which may not constitute an equitable money charge upon 
 the land to be discharged by one satisfaction, then, though 
 the original grantee may be taken by his acceptance to im- 
 ply a promise to comply, every subsequent holder is a 
 stranger to the first contract, and if he is to be responsible to 
 
OF THE SEVEEAl. TSEQUIEEMEN-TS OF COVENANts. IDS'- 
 
 ike first grantor for the performance of the agTeement, it 
 must be upon the principle that a covenant can be created by 
 parole and may run by parole, or there is no legal principle 
 to subject him. 
 
 The loose reasoning by which the courts have enforced 
 these stipulations is very difficult to analyze. They gen- 
 erally speak of the idea that the acceptance of deeds vpith 
 conditions to do something binds the acceptor to the condi- 
 tions or covenants; but if they do realize that they are en- 
 forcing parole agreements, they never explain how assignees 
 from this grantee can be held to the creator of the conditions 
 between whom no contract was either expressed or implied. 
 If the courts were precise, the explanation offered would 
 probably be either the equity notion that whatever was in- 
 tended to be done should be taken to be done, or the more 
 artistic, but hardly more satisfactory idea of the English 
 courts, that these covenants are equitable easements or a sort 
 of trust. The first assumes that the burden of a covenant 
 can run at law; the latter does not assume that principle. 
 Granting that the covenant could be made good at law by 
 an indenture deed at first, then it is said that in equity it 
 should be good anyway. Even this may well be doubted, so 
 far as assignees are concerned, in cases of stipulations for 
 services, for there is no principle of equity which will com- 
 pel a person to perform any service for which he did not 
 himself agree with the person who seeks to enforce the per- 
 formance. But assuming that point, as in Lydick v. B. & 
 0. Ey., 17 W. Va. 427, and apparently in Murray v. Jayne, 
 8 Barb. 612, it was said that though a covenant may not be 
 perfectly framed to run at law, yet if its nature is such that 
 it can run, it will be enforced in equity; then by a general 
 confusion of legal and equity jurisdiction, the covenant 
 has been enforced as good at law. Of course, it is reasoning 
 in a circle to say that since the covenant is good in equity, al- 
 though imperfect at law, it shall be good at law because good 
 
194 OF THE SEVEEAL EEQUIEEMENTS OF COVEITAlirTS. 
 
 in equity, but some of the cases must have taken that posi- 
 tion. Countryman v. Deck, and any condition to perform 
 active services, clearly assumes that the covenant could be 
 made good by the grantee's signature, as it was shown in 
 earlier chapters that no active duty could be imposed upon 
 successors to lands except by these covenants. Countryman 
 V. Deck, however, was not a bill for a mandatory injunction, 
 which would have been based entirely on equity obligation, 
 but was a bill for specific performance which ordinarily is 
 based upon the recognition of a complete contract at law. 
 If this explanation of the running is not satisfactory, these 
 stipulations for active services must recognize the running 
 of parole covenants at law. 
 
 The other theory, the notion of the covenant being an 
 easement or a trust, of course would not require a grantee 
 with notice to sign the deed which bound him, if in fact the 
 covenant or stipulation is an easement or trust. We have 
 seen that this cannot explain active obligations, but whether 
 it can explain passive obligations and restrictions depends 
 upon the soundness of the notion of equitable easements, and 
 that question had best wait until the chapter on that sub- 
 ject. 
 
 Stipulations and unsigned covenants have probably been 
 enforced much more frequently than can be learned from 
 the reports of the cases, although the reports may not indi- 
 cate that the deeds have been deeds-poll ; for nowadays deeds 
 of indenture are very uncommon forms of conveyance, and 
 it is hardly probable that the many American cases enforcing 
 covenants have been all upon covenants signed by the 
 grantee. But it appears from the reports that stipulations 
 were in deeds-poll which were enforced against assigns in 
 Hurst v. Eodney, 1 "Wash. C. C. 375 ; Ga. So. Ey. v. Beeves, 
 64 Ga. 492 ; Poage v. Wabash Ky., 24 Mo. App. 199 ; Jef- 
 fries v. Jeffries, 117 Mass. 184 ; Midland Ey. v. Fisher, 125 
 Ind. 19; Lake Erie Ey. v. Priest, 31 N. E. Eep. 77 (Ind.) ; 
 
OF THE SEVERAL EEQUIEEMENTS OF COVBNAH-TS. 195 
 
 Post V. West Shore Ey., 50 Hun 301. And see Walsh v. 
 Barton, 24 O. St. 28 ; Hall v. Geyer, 14 0. 0. C. 229. Yet 
 in Parish v. Whitney, 3 Gray 516, the notion of the running 
 of such an agreement by the grantee of a deed-poll is thor- 
 oughly repudiated ; and see Atlantic Dock Co. v. Leavitt, 54 
 I^. Y. 35.1 
 
 SECTIOIT 2. 
 
 OF THE WBCESSITY OF A GRANT BETWEEN THE PARTIES ; AND 
 
 OF THE SEPARATE EXECUTION OF THE COVENANT 
 
 NEAR THE TIME OF SUCH GRANT. 
 
 It is next presented to consider whether or not the cove- 
 nant must be embraced in a grant and rise in connection 
 with some form of interest passing between the parties to 
 the covenant, or whether a covenant can run although made 
 "with one who is a stranger, as he is called; that is to say, 
 w^hether covenants by strangers to the title or to strangers 
 to the title will run with a particular piece of land. It is 
 clear that warranties after becoming fully developed were 
 not made by strangers, as the relation of tenure was the ex- 
 press consideration of the warranty, and the question whether 
 a stranger was bound could not arise. True enough after 
 the artistic manipulation of the warranty as a rebutter 
 against the heir's claim to inheritance was evolved as an 
 avoidance of the various early statutes, the collateral war- 
 ranty was really given without a conveyance of land; but 
 that invention was on its face a fiction, the pretense being 
 that this warrantor had conveyed the land warranted; and 
 
 1 In Atlantic Dock Co. v. Leavitt, 54 N. Y. 35, cited above, the 
 deed was apparently a deed-poll, although It contained express cove- 
 nants hy the grantee. But the attestation clause recited, "In witness 
 ■whereof the said parties have hereunto interchangeably set their 
 hands and seals the day and year first above written." So the court 
 leld that the grantee evidently sealed the deed, and decided that 
 his signature was not necessary at common law. 
 
196 OF THE SEVERAL EEQUIEEMENTS OF COVENAISTTS. 
 
 SO the fiction was really his figuring as a grantor, from which 
 relation alone his warranty could have run. It will be re- 
 membered, however, that the conclusion as to the running of 
 express warranties reached above, was that the rights and 
 the obligations ran largely because it was agreed that they 
 should run, and not entirely because of the running of im- 
 plied warranties. If that be so, then, why should not the 
 agreement alone be enough to make a stranger's covenants 
 run? It can onlv be answered that whatever might have 
 been done with express warranties, they did follow implied 
 warranties in this, that they were never made except in case 
 of actual grants. And as covenants were the offspring of 
 express warranties they would be expected to follow them 
 closely. But it is claimed that as a matter of fact they did 
 not so follow them, and as an instance of this Pakenham's 
 Case, Y. B. 42 E. Ill, 3, is cited in support of this posi- 
 tion. 
 
 That case has been discussed above, and need not be con- 
 sidered further here. It, indeed, seems probable that there 
 was no grant between the parties, although Mr. Sugden 
 thought that there was some relation of interest between 
 them. But it is evident that the court was in very great 
 doubt about the law, and if that doctrine was laid down it 
 cannot be said that the discussion of it was very intelligible. 
 
 Nor is it to be thought that such a principle has much to 
 recommend it. As it seems that these covenants can be used 
 to assure larger rights than mere easements, it would allow 
 the free creation of such duties utterly aloof from the equita- 
 ble distribution of privileges which was thought to recom- 
 mend them as an incident of grants. There would occur 
 cases, of course, where their use would be of great advan- 
 tage, but if the argument against all covenants running has 
 any weight at all, it will certainly be respected to limit the 
 operation to places where broad experiences only have re- 
 vealed their usefulness, and instances have not been common 
 
OF THE SEVEEAL EEQUIEEMENTS OF COVENAN-TS. 197 
 
 of the use of covenants by strangers. It is believed that 
 Pakenham's Case has not been followed in this regard in 
 England, unless Home's Case, Y. B. 2 li. IV, 6, is snch 
 a, case; although Coke said covenants of a stranger would 
 run. Co. Lit. 384b. 
 
 In modern times it has become settled in England, as we 
 shall see, that not even the grant of an easement is sufficient 
 to allow an accompanying covenant to run; and a fortiori 
 it is hopeless to expect the courts to indorse the running of 
 the covenant by a mere stranger. But the Eeal Property 
 Commissioners reported a recommendation that the matter 
 be settled by statute. See Sugden, V. & P., p. 685. 
 
 The American Law is generally settled that the covenant 
 writhout some sort of a grant is merely a personal obligation. 
 Hurd V. Curtis, 19 Pick. 459; Lyon v. Parker, 45 Me. 474; 
 Oilmer v. Ey., 79 Ala. 569; Hills v. Miller, 3 Paige 254; 
 ISTye V. Hoyle, 120 N. Y. 195 ; Denman v. Prince, 40 Barb. 
 213 ; Wheeler v. Schad, 7 Wev. 204 ; Harsha v. Eeid, 45 K 
 Y. 415 ; ISTorfleet v. Cromwell, 64 ~S. C. 1 (semble) ; Law- 
 rence V. Whitney, 115 IST. Y. 410; Miller v. I^oonan, 12 Mo. 
 App. 370, 83 Mo. 343 ; Trustees of Col. College v. Lynch, 
 47 How. Pr. 273. Bradley v. Walker, 14 IST. Y. Supp. 315, 
 if contra, would seem not law in New York. But compare 
 Home V. Miller, 136 Pa. 640. 
 
 In Mott V. Oppenheimer, 135 IST. Y. 312, there was no 
 grant, but there was a party-wall agreement by which either 
 party might build and the other pay on user. Only one 
 signed the agreement. The court said the fact that there was 
 no grant was overcome by the agreement that the covenant 
 should run. The action, however, was a petition to restrain 
 the defendant from using until he should pay for his share 
 of the wall. 
 
 In Minnesota the court held that the benefit of a covenant 
 by a stranger might run. Shaber v. St. Paul Water Co., 30 
 Minn. 179 ; and in an accompanying decision, Hamm v. 
 
198 or THE SEVEEAL EEQTJIEEMEITTS OF COVENANTS. 
 
 Same, id. 185. There was no careful discussion of the pointy 
 however. 
 
 But it is held not fatal that the covenant be expressed in 
 a separate instrument contemporaneous with the grant, as 
 the two instruments may be regarded as but one transac- 
 tion. Hills V. Miller, 3 Paige 254; Cutter v. Williams, 3 
 Allen 196; Denman v. Prince, 40 Barb. 213; Eobbins v. 
 Webb, 68 Ala. 393 ; Hayes v. N. Y. Gold Mining Co., 2 Col. 
 273. But in Wheeler v. Schad, 7 ISTev. 204, an intermission 
 of eleven days between the grant and the covenant was held 
 too great to regard the two as one transaction, and the cove- 
 nant did not run. 
 
 SECTION 3. 
 
 or THE CHAEACTEE OF THE GEANT^ WHETHEE OF COEPOEEAL 
 OE INCOEPOEEAL HEEEDITAMENTS. 
 
 Conceding, then, that the covenant must accompany a 
 grant in order to run, the next, question is what must be the 
 nature of the estate conveyed in order to pass the title. His- 
 torically, so far as warranties were concerned, the expecta- 
 tion would be that the tenement granted must be corporeal. 
 In the old status of tenure that was of course the case, and it 
 was so in the exercise of express warranties. But there seems 
 to be no reason why some incorporeal hereditaments, as rents 
 or profits, could not be warranted, after the warranty be- 
 came developed as an insurance of full enjoyment; and if 
 that be so, then why should not covenants run with them ? 
 
 Moreover, as the covenants run entirely by analogy, any- 
 way, the requirement of a grant would seem satisfied by the 
 grant of an easement as well as by the grant of a fee. Any 
 tendency it has to broaden the operation of covenants to a 
 dangerous degree is answered by the fact that the grants of 
 easements have been generally so used in America as to 
 make it evident that it is useful to have covenants run with 
 
OF THE SEVERAL EEQUIEEMENTS OF COVENANTS. 199 
 
 them; and as a great many decisions have drifted that way, 
 especially in cases on party-wall agreements, there would 
 seem little ground to discourage it in any American jurisdic- 
 tion. 
 
 The English Law, however, has become settled otherwise, 
 and as in any new jurisdiction English cases are sure to be 
 presented and argued from, it is very important for every 
 lawyer to be familiar with them from the beginning. In 
 Brewster v. Kidgell, 12 Mod. 166, Lord Holt stated that he 
 did not doubt that the assignee of a rent-charge to which 
 was attached a covenant to pay the rent could bring cove- 
 nant against the grantor; but the point of the case, as is 
 remembered, was whether the burden of the covenant to pay 
 the rent would run to the assignee of the land charged with 
 the rent. This dictum of Lord Holt was disapproved in 
 Milnes v. Branch, 5 M. & Sel. 411, where Lord EUenbor- 
 ough held that the assignee of a rent could not sue the owner 
 of the land on his covenant to pay rent and to build. And 
 this case was indorsed by Baron Parke in Randall v. Eigby, 
 4 M. & W. 130, 135. 
 
 But in Sharp v. Waterhouse, 7 E. & B. 816, the running 
 of the benefit of a covenant in the grant of an easement was 
 accepted without dissent. This decision made no impression, 
 however, for in Hayward v. Benefit Building Society, 8 Q. 
 B. D. 403, an action by the assignee of a rent on a covenant 
 for repairs by the grantee of the land, it was said that Milnes 
 V. Branch had settled the law that the covenant would not 
 run with an incorporeal hereditament.* These were all cases 
 on the question of the assignment of the rent carrying the 
 covenant in the original deed, but there appears no ground 
 for distinction between that and the case where the original 
 conveyance was the rise of the rent. Yet in Werderman v. 
 Societe Generale D'Electricite, 19 Ch. D. 246, the burden 
 
 1 Compare, however, Butler v. Archer, 12 Irish C. L. N. S. 104, 
 stated supra. 
 
200 OF THE SEVEEAL BEQUIEEMEWTS OF COVENAJSTTS. 
 
 of a covenant was enforced against the assignee of the 
 grantee of letters-patent; and while it was in equity, and 
 really has nothing to do with land, it may have some influ- 
 ence upon future decisions. Mr. Sugden thought covenants 
 would run with incorporeal hereditaments. V. & P., 14 ed., 
 p. 577. 
 
 There is no douht that covenants in leases of incorporeal 
 hereditaments ran both ways, but it will be remembered 
 that the Statute of 32 H. VIII mentions them as included; 
 and as the statute includes other rights which unquestionably 
 did not run at Common Law, as rights of entry, no deduc- 
 tion can be made from that fact. For English decisions in 
 leases see Bally v. Wells, 3 Wilson 25, a lease of tithes; 
 Portmore v. Bunn, 1 B. & 0. 694, a lease of the right to 
 make a canal; Martyn v. Williams, 1 H. & E". 817, a license 
 for years to look for clay; Earl of Egremont v. Keene, 2 
 Jones Irish Eq. 307, a grant for years of the customs of a 
 fair; Nerval v. Pascoe, 34 L. J. Ch. 82, a license to dig 
 for coal — all collected in 1 Smith's Leading Cases, 9 ed., in 
 notes to Spencer's Case. 
 
 As has been indicated, the universal law in America is 
 that covenants will run with the grant of incorporeal 
 hereditaments whether the covenant is made in the creation 
 of the hereditament, as a covenant to pay rent, or whether 
 the covenant is annexed to the hereditament so as to be con- 
 veyed by its assignment, as a covenant with an easement. In 
 Springer v. Phillips, 71 Pa. 60, the assignment of a rent 
 carried the covenant to pay it. So in Fisher v. Le%vis, 1 
 Clark 422, and Kaby v. Peeves, 112 N. C. 688, where the 
 grant for which the rent was exacted was merely a way; 
 and see Conrad v. Smith, 5 Wkly. Not. Cas. 402 ; Eitzman 
 v. Spencer, 5 Pa. Dist. Ct. 224 ; Scott v. Lunt, 7 Peters 596 ; 
 Kunckle v. Wynick, 1 Dall. 305. Weill v. Baldwin, 64 Cal. 
 476, involved the running of covenants with the grant of a 
 ditch. So a covenant can run when made in the grant of 
 
OF THE SEVEEAL EEQUIEEMEH"TS OF COVENANTS. 201 
 
 •a way. Ey. v. Keeves, 64 Ga. 492; Ruddick v. Ey., 116 
 Mo. 25 ; St. L. I. M. & S. Ey. v. O'Baugh, 49 Ark. 418 ; 
 Lydick v. Ey., 17 W. Va. 427. But see Ey. v. Bosworth, 46 
 O. St. 81, and Bishop v. Quintard, 18 Conn. 395, apparently 
 contra. So a covenant v?ill run with the grant of a water 
 privilege, Nye v. Hoyle, 120 N. Y. 195; Fitch v. Johnson, 
 104 111. Ill; Fresno Canal Co. v. Dunbar, 80 Cal. 530; 
 jfTorfleet v. Cromwell, 64 E". C. 1 ; Stirling Hydraulic Co. v. 
 Williams, 66 111. 393 ; but compare Wheelock v. Thayer, 16 
 Pick. 68, seemingly contra. And the covenant to fence ran 
 with the easement granted in the reserved land in Bronson 
 V. Coffin, 108 Mass. 175. 
 
 In Bradley v. Walker, 14 IST. Y. Supp. 315, a covenant to 
 Tefrain from building upon eight feet of parking was held 
 to run although there was no grant; but the case is really 
 a mere extension of the English doctrine of Tulk v. Moxhay, 
 2 Phil. 774. 
 
 In Middlefield v. Knitting Co., 160 Mass. 267, the privi- 
 lege was allowed to mill owners to raise a dam and so to 
 build a higher bridge, and this was enough to enable a cove- 
 nant of the mill owner to run. This case was handled by Mr. 
 Justice Holmes as the converse of Pakenham's Case, being 
 the running of a covenant against land for the benefit of the 
 public personified in a corporation, while Pakenham's Case, 
 Y. B. 42 E. Ill, 3, seemed to indorse the running of a cove- 
 nant against the successors of a corporation, for the benefit 
 of a particular piece of land. The case would seem anoma- 
 lous, and to be sustained only on Mr. Justice Holmes' own 
 theory that the execution of a covenant is the grant of an 
 easement. On that ground this covenant in Middlefield v. 
 Knitting Co. was the grant of an easement in gross to the 
 town. 
 
 But the most important instance of the running of cove- 
 nants with the grant of easements is the case of party-wall 
 agreements, where there has been no sale of land, but merely 
 
202 OV THE SEVERAL EEQUIEEMENTS OF COVEl^ANTS. 
 
 the executed agreement of adjoining property-owners that 
 one may build, the other, his heirs or assigns, covenanting to 
 pay their share of the expense of the party-wall on their sub- 
 sequent user. Such an agreement was enforced as running 
 with the land in Hart v. Lyon, 90 N. T. 663 ; Stewart v. 
 Aldrich, 8 Hun 241; Mott v. Oppenheimer, 135 IST. T. 312; 
 Conduitt V. Eoss, 102 Ind. 166; Joy v. Boston Penny Sav- 
 ings Bank, 115 Mass. 60 ; Huling v. Chester, 19 Mo. App. 
 607 ; Tomblin v. Tish, 18 Brad. 439 ; Eoche v. Ullman, 104 
 111. 11 ; Gibson v. Holden, 115 111. 199 ; Weyman v. Kingold, 
 1 Brad. 40; Mohr v. Parmalee, 43 K Y. Super. Ct. 320; 
 King V. Wight, 155 Mass. 444 ; Pfeiffer v. Matthews, 161 
 Mass. 487; Horn v. Miller, 136 Pa. 640; Hall v. Geyer, 14 
 O. C. Ct. 229 ; Guentzer v. Juch, 4 'N. Y. Supp. 39 ; Pills- 
 bury V. Morris, 54 Minn. 492. But see Crater v. McCor- 
 mick, 4 Col. 197, and Sharp v. Cheatham, 88 Mo. 498, 
 contra. 
 
 SECTION 4. 
 
 OF THE MATTEE OF COVENANTS. 
 
 It is perhaps well to refer in this chapter to the substance 
 of the covenants, although it is governed by the same rule 
 that plays so important a part in the law of covenants in 
 leases. To run the covenant must be one which touches or 
 concerns the land. This has been differently stated by nearly 
 every judge who laid it down. In Spencer's Case that ex- 
 pression itself is used. "They must be for the benefit of the 
 land," Cockson v. Cock, Cro. Jac. 125 ; or as Lord Brougham 
 put it, new and unusual incidents cannot be attached to the 
 land, either as benefits or burdens. Keppell v. Bailey, 2 M. 
 & K. 517. So it has sometimes been said that the covenant 
 must be to do something upon the land of the covenantor, 
 Euddick v. Ey., 116 Mo. 25 ; though it is believed that this 
 statement is too narrow. In Woolescroft v. Norton, 15 Wis. 
 
OF THE SEVERAL EEQUIEEMENTS OF COVEITANTS. 203 
 
 198, the limits were described so as to indicate that the cove- 
 nant must be presumably an advantage even to the land it 
 burdens. "Where the covenant is one about or affecting the 
 land devised or granted and tends directly and necessarily 
 to enhance its value or render it more beneficial to those by 
 vi^hom it is owned or occupied, the covenant is said to be inci- 
 dent to the land and binding upon those in whom it subse- 
 quently rests." 
 
 So it is held that the covenant must be consistent with 
 public policy, must regulate the mode of enjoying the grant, 
 and be such that in its absence the grant will be different 
 from what was intended. ITorfleet v. Cromwell, 64 JSTo. C. 1. 
 And some seem to think that the covenant must be part of the 
 consideration for buying the land. Lydick v. B. & 0. Ey., 
 17 W. Va. 427. 
 
 On the whole, therefore, it would seem that there is no real 
 rule which can govern new instances so as to rule them in or 
 out. From the cases the conveyancer can see what has been 
 the drift of the decisions, and they have been sufficiently 
 abundant for the grantor not to go far astray in judging 
 what the courts would sustain. 
 
 SECTION 5. 
 
 of the wecessaet woeding of covenants and theie con- 
 stetjction; and of the naming of 
 
 THE PAETIES. 
 
 We come now to examine the wording of covenants and 
 what will indicate, other things being sufficient, when it is 
 clear that a covenant exists. In England, where all formal 
 instruments are drawn with more care than characterizes 
 drafting with us, it is very rare that the question arises 
 whether a covenant was intended or not. A covenant there 
 is always clearly worded as a covenant, and the only ques- 
 tion in doubt is whether the words "heirs and assigns" must 
 
204 OF THE SEVEEAL EEQUIEEMENTS OF COVENANTS. 
 
 be inserted, whether in particular instances the covenant can 
 run when these mystic words have been omitted. This ques- 
 tion was rendered much more important by Coke's discussion 
 of it with reference to leases, referred to under the chapter 
 of this work on that subject; and his notion has been more 
 than once repeated in connection with the general law of 
 covenants running with the land. See Morland v. Cook, 6 
 Eq. 252. As a matter of custom now English grants which 
 contain covenants almost universally mention all successors 
 of the parties as included on both sides; and if the deriva- 
 tion of covenants set forth in the early part of this work is 
 the true one, of course historically the heirs and assigns 
 should be named, if included, as that was in early days the 
 only means of accomplishing their inclusion, the old law 
 implying nothing. On the other hand, Mr. Justice Holmes 
 thinks-* that the words need not be inserted, as he believes 
 the covenant an easement, and they were not necessary in 
 easements. He thinks their use arose from confusion, and 
 that certain decisions evince such a state of the law, e. g. 
 Hyde v. Dean of Windsor, Cro. Eliz. 552, ib. 457, s. c. 5 Co. 
 Eep. 24a. It will be remembered, too, that there is doubt 
 whether the word "assigns" was in the covenant in Paken- 
 ham's Case. 
 
 But whatever may have been the iirst requirements, there 
 has been a tendency in equity to lessen the strictness of nec- 
 essary form, as the intention of the parties was more fully 
 regarded, and as the matter of covenants is now in England 
 a matter of equity jurisdiction, it is of little importance 
 there whether the conveyancer omits successors or not. In 
 Collins V. Plumb, 16 Vesey 434, Lord Eldon said there was 
 a question whether the assigns, "if named," could sue; and 
 in Keppell v. Bailey, 2 M. & K. 517, Lord Brougham seems 
 to have thought that assigns must be named. But those 
 <jases were decided while the legal notion of running cove- 
 
 1 The Common Law, pp. 401 et seq. 
 
OF THE SEVEEAL EEQTJIEEMENTS OE COVEITAH"TS. 205 
 
 nants had not been entirely repudiated by the courts. After 
 Tulk V. Moxhay, and after the notion had become entirely 
 one of equity in England, there was no longer any fixed lim- 
 itation as to the matter. Thus in Keats v. Lyon, L. K. 4 Ch. 
 218, where the covenant had been by A, "his heirs and as- 
 signs" with B, "his heirs, executors and administrators," 
 Lord Justice Selwyn, in delivering the opinion of the court, 
 said : "It is true that in such cases the court does not require 
 any particular form of deed or covenant, but, as Lord Cot- 
 tenham observed, would enforce a contract if proved by a 
 mere agreement; but so far as the question may turn upon 
 the intention of Sharp, the vendor, it is not altogether im- 
 material to observe, that although in both the conveyances to 
 Langton in ISTovember, 1842, Langton is made to covenant 
 for himself, his heirs, and assigns, the covenant in both cases 
 is entered into with Sharp, his heirs, executors, and adminis- 
 trators only." 
 
 So in McLean v. McKay, 5 P. C. 327, and Kichards v. 
 Eevett, 7 Ch. D. 224, restrictive covenants were enforced in 
 equity without the express mention, it seems, of assigns in 
 the agreement. 
 
 It is indeed still maintained that a covenant is a formal 
 instrument, and in all formal instruments no one is bound 
 but him who contracts and is named. Yet it is also true that 
 the covenant is not the express contract of any particular 
 successor in title, but is allowed to bind successors, not by 
 agency, but by a peculiar principle of the Common Law, rest- 
 ing wholly on the will of the party who first makes th& 
 covenant. It is not, therefore, a question of formality, but 
 a question of indicated intention, both at law and in equity; 
 and in these times when the law is ready to infer anything 
 lying within the four corners of a writing, there should be no 
 doubt that the law should bind or release according to the 
 true construction of the intent without regard to any fanci- 
 ful wording which serves only to show the intent at last. 
 
206 OF THE SEVEEAL EEQUIEEMBITTS OF COVENAKTTS. 
 
 The American courts have been much freer to observe this 
 fact, and there has been no end of decisions here which let 
 covenants run both ways without any mention whatever of 
 any sort of successor. What should be enough to supplant 
 their mention, only the circumstances can prescribe; — "that 
 the covenant shall run with the land," "that the covenant 
 shall last forever," "that the agreement shall be perpetual" — 
 all leave not the slightest doubt of the real intention of the 
 parties.* 
 
 1 See Cincinnati v. Springer, 23 Weekly Bulletin 250; Dunbar v. 
 Jumper, 2 Yeates 74; Dailey v. Beck, 4 Clark 58; Landell v. Hamil- 
 ton, 175 Pa. 327; Clark v. Martin, 49 Pa. 289; Muzzarelli v. Hul- 
 shizer, 163 Pa. 643; Bald Eagle Valley Ry. v. Nittany Valley Ry., 
 171 Pa. 284; Green v. Creighton, 7 R. I. 1; Crawford v. Witherbee, 
 77 Wis. 419; Weil v. Baldwin, 64 Cal. 476; Dorsey v. Ry., 58 111. 65; 
 Raby v. Reeves, 112 N. C. 688; Richardson v. Tobey, 121 Mass. 457; 
 Carson v. Percy, 57 Miss. 97; Winfleld v. Henning, 21 N. J. Eq. 188; 
 Kirkpatriok v. Peshine, 24 N. J. Eq. 206; Countryman v. Deck, 13 
 ■ Abb. N. C. IIOL/Louis v. Golner, 129 N. Y. 227; Bradley v. Walker, 
 '14 N. Y. Supp. 315; Hodge v. Sloan, 107 N. Y. 244; Post v. Weil, 115 
 N. Y. 361; Graves v. Deterling, 120 N. Y. 447; Mott v. Oppenlieimer, 
 J^35 N. Y. 312; Dey v. Prentice, 90 Hun. 27; Wooliscroft v. Norton, 
 15 Wis. 198; Snyder's License, 2 Pa. Dist. Ct. 785; Bean v. Stoneman, 
 104 Cal. 49; Ry. y. Reno, 22 111. App. 420; Hickey v. Ry., 36 N. E. 
 Rep. 672 (Ohio); Ry. v. O'Baugh, 49 Ark. 418; Fitch v. Johnson, 104 
 111. Ill; Hazlett v. Sinclair, 76 Ind. 488; Peden v. Ry., 78 Iowa 131; 
 Huling V. Chester, 19 Mo. App. 607; Curtiss v. White, Clark Ch. 
 (New York) 389; Gibson v. Holden, 115 111. 199; Denman v. Prince, 
 40 Barb. 213; Watertown v. Cowen, 4 Paige 510; Dexter v. Beard, 
 7 N. Y. Supp. 11; Mohr v. Parmelee, 43 N. Y. Super. Ct. 320; Fresno 
 Canal Co. v. Dunbar, 80 Cal. 530; Shaber v. St. Paul Water Co., 30 
 Minn. 179; Norfleet v. Cromwell, 64 N. C. 1; Herbaugh v. Zentmeyer, 
 2 Rawle 159; Conrad v. Smith, 5 W. N. C. 402; Guentzer v. Juch, 4 
 N. Y. Supp. 39; Ritzman v. Spencer, 5 Pa. Dist. Ct. 224; Lydick'v. 
 Ry., 17 W. Va. 427; Coudert v. Sayre, 19 Atl. Rep. 190 (N. J.); 
 Coughlin V. Barker, 46 Mo. App. 54; Badger v. Boardman, 16 Gray 
 559; Jewell v. Lee, 14 Allen 145; Skinner v. Shepard, 130 Mass. 180. 
 Maynard v. Polhemus, 74 Cal. 141, if contra, cannot be supported in 
 the light of later decisions in the same court. 
 
 In Clark v. Dewey, 124 N. Y. 120, the wording seemed to show 
 an especial meaning in the omission, as was the case in Hart v. Lyon 
 90 N. Y. 663. 
 
OP THE SEVEEAL EEQUIEEMENTS OF COVBH-ANTS. 207 
 
 In many American cases the question whether a covenant 
 existed has been more difficult than the mere decision on the 
 omission of heirs and assigns. If the intention shall operate 
 to make a covenant without one set of words, then why not 
 without others ? Indeed, why should the word "covenants" be 
 necessary? That brings it down to the interpretation of a 
 mere proviso or agreement or stipulation inserted in the 
 deed; and it may be very hard to tell in a particular case 
 whether the intention was to make a covenant or a condition 
 of forfeiture or an easement. Of course the law avoids con- 
 ditions if possible, for their effective consequence is the entire 
 forfeiture of estates when a smaller penalty would serve jus- 
 tice; but this aversion can be but a small limitation on the 
 difficulty of reading the intention. 
 
 In Graves v. Deterling, 120 IST. Y. 447, the court construed 
 an agreement that a park should not be built upon as a cove- 
 nant and not a condition, but said that express words could 
 not decide. "It must be determined from the apparent in- 
 tention to be derived from the locality of the expression in 
 the grant, and all the circumstances." So in a conveyance 
 to a railway stated to be "upon express condition that the 
 said railway, their successors or assigns shall at all times 
 maintain an opening into the premises hereby conveyed," the 
 proviso was held to be a covenant and not a condition. Avery 
 V. Ey., 106 K Y. 142. So in Dey v. Prentice, 90 Hun 27, 
 a stipulation that the grantee should fence was held a cove- 
 nant. See also Hammond v. Ey., 16 S. C. 569 ; Hartung v. 
 Witte, 59 Wis. 285. 
 
 In distinguishing between covenants and easements there is 
 not even so efficient an aid as an established rule to avoid the 
 one or the other when possible; for in far the majority of 
 cases there is no such consequence as in case of conditions. 
 The courts have therefore been very loose in many instances 
 in drawing the distinction, and have even used both words in 
 the same opinion in reference to the same right. There are 
 
208 OF THE SEVEEAL EEQUIEEMENTS OP COVENAB"TS. 
 
 some agreements which it would seem impossible to call 
 easements ; but there are others, as fencing and perhaps re- 
 pairs, according to a recent case, which might be either; 
 whereas there are still others, as agreements to leave a way 
 open or stipulations to leave a park, which are so much in 
 line with the ordinary grants of easements that it would seem 
 very strong to make them covenants. Of course the intention 
 must always determine, and that the court each instance must 
 decide ; but where the parties have used the word "covenant" 
 and name heirs and assigns, there would seem little doubt 
 that they intended nothing else, and it would be very strong 
 to call it an easement. In Blount v. Harvey, 6 Jones (IST. 
 C.) 186, the court said that a covenant will not be inter- 
 preted to be an easement as it is against the science of the 
 law. But Mr. Justice Gray in Bronson v. Coffin, 108 Mass. 
 175, said, "Words sounding in covenant only may operate 
 by way of grant of an easement, wherever it is necessary 
 to give them that effect in order to carry out the manifest 
 intention of the parties." 
 
 Bronson v. Coffin was a case of the grant of an easement 
 of fencing, coupled with a covenant to fence, as the court 
 interpreted it, and the opinion would seem an excellent guide 
 to the law. The old English decisions recognizing the ease- 
 ment of fencing, seem never to have indicated that a covenant 
 to fence was an easement, and the Massachusetts court did not 
 decide that it was. It merely implied from the covenant the 
 intention also to grant an easement, in effect admitting a 
 distinction between them. As has several times been pointed 
 out, however, this is not universally accepted without ques- 
 tion ; some believing them the same thing, treat them in the 
 same way.^ It is unnecessary here to take up that question 
 again, as it has been so fully discussed in the chapter on 
 the origin of covenants which run with land. 
 
 1 Holmes, The Common Law, pp. 401 et seq., contains the strong- 
 est argument for their identity. 
 
CHAPTEE X. 
 
 OF THE CLASSES OF C0VE1TAH"TS MOST FEEQUEWTLY OOCTJE- 
 
 EING. 
 
 Section 1. Covenants as to the maintenance of fences and walls 
 and mill-dams. 
 
 Sec. 2. Covenants as to the building and use of party-walls. 
 
 Sec. 3. Covenants as to the leaving open of ways and parks. 
 
 Sec. 4. Covenants compelling or restricting building to a par- 
 ticular line 
 
 Sec. 5. Covenants restricting the kinds of uses of property in a 
 particular locality. 
 
 All that has been hitherto said has been said of covenants 
 in general and is applicable to all covenants which touch or 
 concern the fee estates to which they are attached. The rules 
 applicable to the running of one kind, it is believed, are ap- 
 plicable to the running of every kind without exception. And 
 as the American law of covenants was traced out in the 
 several states, any desire to find the law in a particular state 
 may be satisfied by reviewing the decisions there as given in 
 Chapter VII. If the reports of the locality in question pre- 
 sent no decision upon covenants, the investigator may find 
 it well to review the given decisions of all the states to find 
 the general trend of the law. In short, it is believed that if 
 the right to be investigated is legitimate matter for a cove- 
 nant, and if its formalities conform to the requisites of cove- 
 nants given in Chapter IX, whether its running will be sus- 
 tained depends upon the general law in each particular state,, 
 and not upon whether the identical covenant has been allowed 
 to run in that state, or has been sustained in other states. In 
 points of law capable of being resolved into general prin- 
 ciples, there need be little fear but that courts will follow the 
 
 209 
 
210 OF THE CLASSES OP COVE]SrANTS 
 
 investigation of the principles if logically explained without 
 distinction between accidental facts. It was thought, there- 
 fore, that an examination of covenants on each subject sep- 
 arately would rather mislead than aid the investigator, as 
 no one subject of covenants has involved decisions upon all 
 the important principles; and all subjects would have to be 
 examined before coming to a complete and final conclusion 
 upon the law applicable to-day. But it has been suggested 
 that many points have been clearly decided upon each of 
 the covenants commonly met with in the law, and that it 
 would aid a quick investigation of those points to make a 
 brief array of the law on the common covenants separately. 
 This has been done, therefore, at the expense of somewhat 
 enlarging the work, but where any point has been clearly 
 and separately stated elsewhere in the volume time and space 
 have been saved by referring the reader to those statements. 
 In Chapter I, the common covenants which are attached to 
 fees were arranged in five classes and these classes will now 
 be briefly treated in the order there given. The examination 
 here given is limited, however, to their operation as rights at 
 law, just as all covenants have been treated up to this point in 
 the work. If the covenant be admitted not to run at law, the 
 process of reasoning applied in chancery by which some 
 covenants have been enforced as equitable easements which 
 are rights incapable of being conferred so as to operate at 
 law, is so long as to involve separate examination. And 
 indeed whatever be the effect of the covenant at law, if in- 
 vestigation is made of rights in equity, so different and so 
 much looser are the requirements of chancery in the limited 
 sphere in which equity can give relief, that it is necessary 
 to postpone the examination of all covenants in equity to the 
 next chapter. Moreover, where equitable rights exist the 
 requisite technicalities of form in them are so few that to 
 follow out each class of covenants separately in its operation 
 in equity would be useless repetition. 
 
MOST FEEQUENTLY OCCUEEING. 211 
 
 SECTION 1. 
 
 COVEITANTS AS TO THE MAINTENANCE OF FENCES AND WALLS 
 AND MILL-DAMS. 
 
 Covenants concerning fences and walls are usually cove- 
 nants both to build and maintain them, and have occurred 
 most commonly in America in connection with grants to 
 railroads of rights of way. The land owners along the line, 
 in granting the right of way for the railroad, usually exact 
 of the railroad company the engagement to keep their track so 
 guarded as to avoid the danger to any land owners of having 
 their cattle, when straying upon the track, killed by the 
 trains. The main question is whether such an engagement 
 to fence is a covenant or a granted easement. As the Ameri- 
 can habit is, however, to insert the agreement in the deed to 
 the railway company, and as the company rarely signs the 
 deed, as pointed out in Section 3, of Chapter IX, it may 
 well be doubted whether in such a case it can be ati easement ; 
 for easements must be signed like all grants. In such cases 
 as deeds-poll the agreement is a parole agreement, having the 
 effect of a covenant to the extent that parole agreements are 
 enforceable and the reader is referred to Section 1 of Chap- 
 ter IX for their discussion. See also Bronson v. Cnffin, 108 
 Mass. 175, explaining Parish v. Whitney, 3 Gray (Mass.) 
 516. 
 
 But to consider the formal case of the agreement to fence 
 signed by the person to be bound by it. There is some au- 
 thority to consider such an agreement as a grant of a spurious 
 easement; and if an easement, it runs with the land itself 
 and attaches to it without reference to how the possessor or 
 the beneficiary gets his title to the land. See Chapter III. 
 Mr. Justice Holmes, The Common Law, p. 392, believes that 
 the spurious easement to fence has long existed as such, and 
 logically points out that there is no difference between the 
 
212 OP THE CLASSES OF COVElTAN"TS 
 
 duty to fence and the duty to repair a fence when once built. 
 Early authorities endorsing the obligation to fence as one at- 
 tached to the land are Y. B. 19 H. VI 33, and Star v. Eookes- 
 by, 1 Salt. 335 ; though by referring to Chapter III it will 
 be seen that Lord Holt doubted whether the writ de curia 
 claudenda (the writ enforcing fencing) was Common Law 
 or local custom. But enough can be found to make it possible 
 for a court to decide that there is such a thing as an ease- 
 ment compelling the land owner to fence, and it may be a 
 question of construction in each case as to whether the duty is 
 an easement or a covenant. As was seen in Chapter III there 
 are no words which exclusively make one or the other; so 
 the sense and the four corners of the writing must determine 
 what was done. Let the reader refer to Section 5 of Chapter 
 IX for observations upon the interpretation of covenants. 
 If the obligation be an easement it may be held to give 
 broader rights in equity, though imperfectly drawn at law, 
 for it may be then a pure equitable easement, though no 
 decisions have been found of pure equitable easements of 
 fencing. But if an imperfect covenant, its running in equity 
 would be a question of money charge, as explained in Chap- 
 ter XL 
 
 As to the necessity of there being a grant of a fee, which 
 the duty to fence is to accompany, as seen in Sec. 3, Chapter 
 IX, in America, covenants may run with easements, while 
 in England, even before the running of the burdens of cove- 
 nants at law was rejected, it was settled that no covenant 
 could run with a mere easement. In America, moreover, 
 the easement is not always clearly expressed; it may be im- 
 plied in fact in the writing. In Bronson v. Coffin, 108 Mass. 
 175 (same case, 118 Mass. 156), the owner of land granted 
 the fee in a strip of his land to the railroad for its way and 
 himself covenanted to do the fencing. The court held that 
 the grantor impliedly granted also, out of the remainder of 
 his land, the spurious easement imposing upon himself the 
 
MOST FEEQUENTLY OCCUEEIITG. 213 
 
 obligation to fence, and tliat the burden of his covenant ran 
 ■with this easement. The apparent absurdity of implying 
 this easement with which the burden was to run, when the 
 grantor possessed the land itself out of which the easement 
 was taken, and with which the covenant could run, was due 
 to the necessity to determine the very important question 
 whether all the land was burdened by the covenant, or only 
 the part contiguous to the land on the other side of the fence. 
 The court held that only the part along the fence was bur- 
 dened, and that the remote land might be sold free of the 
 duty to maintain the fence ; and to make a line of limitation 
 the court invented the easement, which of course extended 
 only to the land actually supporting the fence. The conclu- 
 sion is exceedingly clever, and if the parties intended to 
 burden that part of the land only which was contiguous to 
 the fence, the decision is sound. It may well be doubted, 
 however, whether the parties thought anything about it, and 
 in that case the probability is that all the grantor's land 
 was bound. ISTo other such case has "presented itself, but 
 reference may be made to a dictum by Denio C. J. in Adams 
 V. Van Alstyne, 25 IsT. T. 232, 235, which would seem to 
 sustain in this the ordinary view of easements that, where 
 premises are burdened, every part is burdened alike. 
 
 Little else need be said about this class of covenants. They 
 have been enforced in the following cases, which are suiS- 
 cient to establish the general law. Covenants to fence : Bron- 
 son V. Coffin, 108 Mass. 175, s. c, 118 Mass. 156 ; Country- 
 man v. Deck, 13 Abb. ISTew Cas. (N. Y.) 110; Kellogg v. 
 Eobinson, 6 Vt. 276 ; Hazlett v. Sinclair, 76 Ind. 488 ; Lake 
 Erie Kailway v. Priest, 31 N. E. Kep. (Ind.) 77; Toledo 
 Ey. v. Cosand, 33 K E. Eep. (Ind.) 251 ; Ey. v. Power, 43 
 ISr. E. Eep. (Ind.) 959; Midland Ey. v. Eiss, 125 Ind. 19; 
 Dorsey v. St. L. &c. Ey., 58 111. 65 ; Hartung v. Witte, 59 
 Wis. 285; Ky. Cent. Ey. v. Kenny, 82 Ky. 154. Contra., 
 Ey. V. Bosworth, 46 Oh. St. 81. In Ehode Island a statute 
 
214 OF THE CLASSES OF COVEITANTS 
 
 makes these covenants to run, Thayer v. Smith, Y E. I. 164. 
 Covenant to build a wall : Peden v. Chi. etc. Ky., Y8 Iowa 
 131. Covenants to repair dams: Middlefield v. Knitting 
 Co., 160 Mass. 267; Denman v. Prince, 40 Barb. 213; E"ye 
 V. Hoyle, 120 N. Y. 195; Fitch v. Johnson, 104 111. Ill; 
 Wooliscroft V. Norton, 15 Wis. 198 ; Howard Mfg. Co. v. 
 Water Co., 53 Ga. 689 ; Wheeler v. Schad, 7 ISTev. 204; Nor- 
 fleet V. Cromwell, 64 N. C. 1. 
 
 SECTION 2. 
 
 COVENANTS AS TO THE BUILDING AND USE OF PAETT-WALLS. 
 
 These covenants are particularly important in the rebuild- 
 ing of old towns where land is of great value ; but they have 
 been quite broadly extended to the building of additions to 
 cities, where they are aimed chiefly at the reduction of the 
 cost of erecting buildings. Most commonly the agreement 
 contemplates the erection of a wall upon the division line 
 between two city lots, the wall resting half upon one lot and 
 half upon the other, and serving as the side supporting wall 
 of buildings to be built on each lot. Sometimes the build- 
 ings are built at the same time ; and then the agreement 
 has to do chiefly with the maintenance of the wall, or its 
 new erection in case of destruction. But oftenest one build- 
 ing is built before the other; and then the agreement de- 
 clares the status of the wall, and has to do with the respective 
 rights of the adjoining owners when the adjoining vacant 
 lot shall be built tipon, and the party-wall thereby employed. 
 In this case the usual agreement is that the lot owner who 
 builds first shall erect the wall upon the line at his sole ex- 
 pense, and the adjoining lot owner on desiring to build,, 
 shall pay to the owner of the party-wall one-half of its cost. 
 Of course, however, all sorts of agreements are drawn up, 
 having varied effects in law, but the gist of the transaction 
 is usually the same. 
 
MOST EEBQUSNTLT OCCTJERING. 215 
 
 The original status of the lot owners, before the execution 
 of the agreement is commonly one of two kinds. The first 
 is the not uncommon case where land is divided into lots 
 and sold by a company, and all the deeds to the lots contain 
 covenants that the adjoining lot holders may have party- 
 walls, each covenanting to allow his neighbor to build such 
 a wall, and covenanting to pay the neighbor or his assign 
 one-half the cost of the wall when he himself shall use it. 
 The second is where the adjoining land owners received deeds 
 to their lots without these covenants, but for their own econ- 
 omy execute such an agreement. 
 
 It is apparent that the first case occasions no difficulty, as 
 it is in accord with the usual requirements for the running 
 of covenants. So if the covenants are properly executed and 
 signed by the grantee as well as by the grantor; and the 
 intent is clear that either owner or his assign may build, 
 and the adjoining owner or his assign may use and pay, 
 the law will enforce the agreement and the second builder 
 will be bound to pay for his half of the wall when he uses it, 
 either to the first builder or to the first builder's assign of 
 the built property, according to the intent and wording of the 
 covenant. There was an original passing of land from the 
 Land Company to the first buyer and the lot sold and all the 
 lots retained were bound and benefited respectively for each 
 other. Therefore the subsequent buyer of the lot adjacent 
 to the former took his lot already burdened and benefited; 
 and the covenants run vnthout difficulty. 
 
 But the second case is not so easily explained. If the 
 adjoining owners already own their lots when they execute 
 the party-wall agreement, there is no passing of land between 
 them, and the question is how are the historical requirements 
 of covenants complied with, so as to enable the covenants to 
 run with the two adjoining pieces of land. If any grant 
 was made it would seem to be an easement of the use of the 
 ground covered by the half of the wall which will rest upon 
 
216 OF THE CLASSES OF COVENAlirTS 
 
 the land last built upon, the other owner building at once 
 and enjoying the easement to hold up the wall which he as 
 yet owns in entirety. 
 
 What, however, is the legal status ? If the grant of an ease- 
 ment can be clearly found, it has been pointed out that in 
 American law at least such a grant is sufficient. See Chapter 
 IX, Section 3. But while it is the general view that this 
 easement exists, it involves some difficulties. The present 
 conception of party-walls, when put up jointly, seems to be 
 that each party owns to the center of the wall with cross- 
 easements of support. This easement is of course actually or 
 impliedly granted at the time of making the wall. If, how- 
 ever, the builder owns the whole wall, then his easement m.ust 
 not be one of support for his half by the other half, but an 
 easement of the use of the surface of the ground, which ease- 
 ment would have to be terminated and the easement of sup- 
 port be granted at the time when the wall should be used. 
 But as no new easement is in fact granted, then it must 
 have been granted at the time of the agreement to operate 
 in futuro upon the payment by the other party of half of the 
 cost of the wall. Such an easement would then arise, for 
 the moment the easement of occupation ceased, the build- 
 er's property in the wall beyond his lot would pass as a 
 fixture to the other lot owner. But such a state of affairs is 
 comically complicated, to say nothing of the extreme rarity 
 of an easement to operate in futuro, though it may be indeed 
 possible. (Gray, Kule against Perpetuities, § 16 ; Lewis on 
 Perpetuities, 600. ) 
 
 On the whole the simplest theory, and the one as near the 
 intention of the parties as any, is that the wall on being 
 built is like any other party-wall, and being a fixture, belongs 
 to the owner of the land which it covers ; but the owner who 
 did not join in the construction is not to pay for his share 
 until he uses it, and covenants to that end. On this theory 
 the only easement implied at once, but which is sufficient to 
 
MOST FREQUENTLY OCCUEEING. 21Y 
 
 start the covenants to running, is the right granted by the one 
 land owner to the other who builds to enter the land of the 
 former for the purpose of building the wall. 
 
 This difficulty settled, the next is to solve the rights of the 
 parties as to the collection of the money from the later 
 builder, who is not to pay for his share until he uses the wall. 
 And this troiible may exist where there was an original grant 
 of land to start the covenants as well as when there was none. 
 It is the question of the intention between the parties as to 
 who should own the wall until both parties should pay. The 
 general interpretation is, that the first builder owns the whole 
 wall, exercising the easement as above indicated upon the 
 adjoining land; and if he sells his property before the ad- 
 joining lot owner builds that he conveys to his vendee title 
 to the whole wall and the right to collect the cost of half the 
 Tvall from the other when he builds. Thus the burden cove- 
 nant is interpreted to mean a covenant to pay half the cost 
 of the wall to him who owns the building at the time of user 
 of the wall. 
 
 But the writing will not always sustain this view. In 
 Gibson v. Holden, 115 111. 199, the agreement was between 
 Holden and one Armstrong, adjoining lot owners, that Hol- 
 den "might build a party-wall, all the cost to be paid by 
 Holden, and that Armstrong should pay half the cost when he 
 should use the wall." The court indorsed the general view, 
 b)ut held that the effect of the agreement here was Holden's 
 lending Armstrong the money for Armstrong's half of the 
 wall, to be paid back when Armstrong should use it ; so the 
 right to recover the cost did not run to Holden's assignee. 
 The conclusion of the court may have been sound as to the 
 intention expressed, for sometimes the parties will make clear 
 very peculiar intentions ; but the ordinary duty of the court 
 is to construe agreements when the parties merely intended 
 the general effect of the party-wall agreement without ever 
 having carefully worked out the means to that end. As sim- 
 
218 OF THE CLASSES OP COVENANTS 
 
 pie a theory as any, is the one which gives the least difficulty 
 about the existence of the easements to be worked out; and 
 as it works out as well for the collection of the money as 
 in establishing the legal status, it recommends itself for all 
 cases where a clear opinion to the contrary is not expressed. 
 The wall, on being built, like all party-walls, belongs to the 
 ovmers of the land covered, but the owner who did not join 
 in the construction is not to pay for his share until he uses 
 it, and covenants to that end. Then the builder, who sells 
 his land with all claims and appurtenances, transfers to his 
 assignee the right to the payment for the half share in the 
 wall when the duty to pay shall arise. 
 
 It is probably upon this theory that some of the cases hold 
 that the right to remuneration for half the cost is personal, 
 not passing as an appurtenance to the grantee of the builder. 
 Todd V. Stokes, 10 Pa. 155; Pillsbury v. Morris, 54 Minn. 
 492. 
 
 In the following cases party-wall covenants were enforced 
 which originated in a grant between the creating parties. 
 Savage v. Mason, 3 Cush. 500; Standish v. Lawrence, 111 
 Mass. Ill; Eichardson v. Tobey, 121 Mass. 457. 
 
 The greater number of cases, however, have been upon 
 running of agreements executed without the passing of land. 
 Such were held enforceable in Hart v. Lyon, 90 IST. Y. 663 ; 
 Stewart v. Aldrich, 8 Hun 241; Mott v. Oppenheimer, 135 
 ISr. Y. 312; Conduitt v. Eoss, 102 Ind. 166; Joy v. Boston 
 Penny Savings Bank, 115 Mass. 60; Huling v. Chester, 19 
 Mo. App. 607 ; Tomblin v. Fish, 18 Brad. 439 ; Eoche v. Ull- 
 man, 104 111. 11 ; Gibson v. Holden, 115 111. 199 ; Weyman 
 V. Eingold, 1 Brad. 40 ; Mohr v. Parmalee, 43 New York 
 Super. Ct. 320; King v. Wright, 155 Mass. 444; Pfeiffer v. 
 Matthews, 161 Mass. 487; Horn v. Miller, 136 Pa. 640; 
 Hall V. Geyer, 14 0. C. Ct. 229 ; Guentzer v. Juch, 4 N. Y. 
 Supp. 39 ; Pillsbury v. Morris, 54 Minn. 492. But see Crater 
 V. McCormick, 4 Colo. 197, contra, and Sharp v. Cheatham, 
 
MOST FKEQUENTLY OCCUEEING. 219 
 
 88 Mo. 498, which probably overrules the decision of the 
 lower court sustaining such covenants in Huling v. Chester, 
 given above. Bloch v. Isham, 28 Ind. 37, decided against 
 such a covenant, but the law of it was overruled in Conduitt 
 V. Eoss, 102 Ind. 166, given above. So, too, Cole v. Hughes, 
 54 ISr. Y. 444, and Scott v. McMillan, 76 ¥. Y. 141, deciding 
 against the running of such an agreement not originating in 
 a grant, are probably no longer law in New York, as will be 
 seen from the later decisions given above. 
 
 The Missouri decision against running in Sharp v. Cheat- 
 ham, 88 Mo. 498, indicated, however, that such a covenant 
 would run in equity, and that brings up the interesting ques- 
 tion how far such covenants as party-wall agreements can 
 run in equity when not allowed at law, or whether they can 
 be enforced at all in equity, not being restrictive covenants. 
 
 As already indicated, matters involving pure equity juris- 
 diction must be left to be considered systematically in the 
 next chapter. It may be well to point out here, however, 
 that equity would probably treat the running of the burden 
 of the agreement in such jurisdictions as do not allow the 
 running of the covenant, as a money charge of half the value 
 of the wall, binding upon the land in equity as any other 
 equitable money charge. But of this more in the next chap- 
 ter. 
 
 In the preceding Chapter IX, Section 1, the running of a 
 parole agreement about party-walls was discussed in con- 
 nection with Maine v. Cumston, 98 Mass. 317, which seemed 
 to support at law an unsealed agreement. Keference may 
 well be made to that section. 
 
 In equity on every theory which does not recognize the 
 running of the covenant as such, intention plays a most im- 
 portant part, and form is largely dispensed with. But while 
 this brings undoubted advantages when the agreement is 
 thus effective, it greatly embarrasses in many cases on ac- 
 
220 OF THE CLASSES OF COVEIYANTS 
 
 count of the limits of scope of circumstances in which it is 
 effective. 
 
 Unfortunately, it is necessary to note that every party- 
 wall agreement, conferring future rights to use the wall, upon 
 future indefinite holders of the land adjoining that of the 
 builder, and conferring rights to exact half the cost of the 
 wall in case of such use, upon future indefinite successors 
 of the builder, is an offense of the rule against perpetuities. 
 However the effect of the agreement is taken, the rule seems 
 to be offended. If, as was preferred above, the property in 
 the half of the wall resting on the edge of the vacant lot passes 
 to owner of the vacant lot at once, and he contracts that at 
 the time that he or any remote successor shall use the wall, 
 the user shall pay to the successor of the builder half the 
 value of the wall, a right to a sum is given to a person who 
 may not be determined within a life in being and twenty- 
 one years. On the other hand, if the effect of the agreement 
 is to let the builder own the wall, and to confer upon any 
 future owner of the adjoining lot the right to buy half of the 
 wall resting on his land, then clearly it confers a right to 
 property upon a person, not necessarily determined within 
 the life in being and twenty-one years. The right to buy 
 land thus conferred was held void in L. & S.-W. Ey. v. Gomm, 
 20 Ch. D. 562 (see Chapter VIII) ; and there appears no way 
 to escape the rule here. As yet, however, the point has never 
 been raised in a party-wall case, and such party-wall agree- 
 ments have been universally held good. 
 
 In the appendix have been inserted forms for party-wall 
 agreements. 
 
 SECTION" 3. 
 
 COVENATTTS AS TO THE LEAVIITG OPEN OF WATS AISTD PARKS. 
 
 Whatever may be said of other rights capable of being con- 
 ferred by covenants, these rights are undoubtedly capable 
 
MOST FEEQUENTLT OCCUEEIITG. 221 
 
 as well of being easements. They are rights over the property 
 of others, in the one case for passage merely, in the other 
 for all sorts of occupancy not of a permanent nature, and 
 for light and air. The commonest instance of the use of 
 covenants for ways is in the severance of property where the 
 grantor increases the usefulness of one piece retained or 
 granted by the agreement for a way over the other. While 
 the commonest cases of covenants to leave open large pieces 
 of land for parks are where land companies divide up plots 
 of ground into lots, the value of which is supposed to be en- 
 hanced by contiguity to an open area. Of course ways are 
 often instituted by land companies in the same way; but 
 when ways are provided for by companies they are 
 oftenest made permanent by dedication, a means probably 
 not so frequently used as a permanent guaranty of areas for 
 light or air, or small plots of parking. It is hardly necessary 
 to draw distinctions between covenants and the process called 
 dedication, especially as dedication is so frequently regu- 
 lated by statute. Suffice it to say, that by dedication a per- 
 manent use is usually instituted in the whole public, which 
 cannot be destroyed by mere agreement of the creating par- 
 ties ; whereas it is evident that covenants and most easements 
 are for particular parties, and may be extinguished by their 
 consent. 
 
 The distinction between covenants and easements has been 
 drawn at length in the first chapter ; but it must be reiterated 
 that in such cases as these ways or parks especially, it is 
 important to decide whether the right conferred is an ease- 
 ment or a covenant. This is not important in determining 
 whether those in privity of estate may enjoy it, but in de- 
 termining sometimes whether any right at all is created. 
 "While it was proven in the third chapter from the cases, even 
 of older times when conveyances were more nearly exact, 
 that there were no express words to convey easements or 
 covenants peculiarly; and that "grant" was often used to 
 
222 OF THE CLASSES OB" COVENANTS 
 
 make a covenant, and "covenant" to convey an easement; 
 at the same time it might well be feared that if the one was 
 clearly intended and expressed, in case of fatal deficiencies, 
 the other might not be allowed. True enough the doctrine 
 is as old as conveyancing, that if a conveyance is bad by 
 one theory it will be sustained if possible on another. See 
 Chapter III. But while that may obtain where merely the 
 general effect of a conveyance was intended, yet where the 
 question is whether one right was intended or another, the 
 courts might hold that the failure to grant one could not be 
 construed into another. The rights of different parties might 
 depend upon it. And while a bad easement might be held a 
 good covenant without injustice, as a covenant being only for 
 privies in estate would extend to fewer parties than an ease- 
 ment, yet certainly it would be unjust to hold a bad covenant 
 a good easement, as an easement would not be limited in its 
 operations to privies but would extend to all holders of the 
 land. But the whole ground is dangerous. We have seen 
 how the court in Koach v. Wadham, 6 East 289 (stated in 
 Chapter VII), held that certain acts of a grantor constituted 
 an appointment and not a grant, so that a covenant could 
 not possibly run to the appointee, when it might have been 
 held to run to the grantee; and while that is not exactly in 
 point, yet the decision resulted in relieving an assign of a 
 covenant obligation where assigns were named as intended to 
 be bound. Moreover, the construction may not be always 
 the direct cause of the subjection or non-subjection to liabil- 
 ity. If the right conferred is an easement, then its rights 
 may be abated by inconsistent user regulated by one clause of 
 the Statute of Limitations ; if it be a covenant, then the effect 
 of its breach will be regulated usually by another clause of 
 the Statute of Limitations. Again the method of execution 
 may have an important effect. If an easement, unless a 
 right of way of necessity (on the requirements of which some 
 work on easements may be examined), it must be signed by 
 
MOST FREQUENTLY OCCUEEIH-G. 223 
 
 the person granting. If a covenant, the additional require- 
 ment is found (see Chapter IX, Sec. 2) that a grant must 
 pass between the parties. 
 
 It is therefore apparent that the conveyancer and the inter- 
 preter must be careful as to whether an easement or a cove- 
 nant was conferred. When it is once clear what right has 
 been conferred there is nothing to be learned about the run- 
 ning in law courts of covenants for ways or parks which is 
 not true of all running covenants. For the requisites refer- 
 ence may be had to the various sections of Chapter IX. And 
 as they are in form restrictive covenants, and in essence 
 capable of being equitable easements, they will probably be 
 recognized as running at least in equity in all Common Law 
 jurisdictions. Their characteristics as rights in equity are 
 postponed until the next chapter, and as the reader will sur- 
 mise, they give less trouble in equity than any other cove- 
 nants. When formal requisites are eliminated, and the class 
 affected by the obligation limited to those who have notice of 
 it, as must be the case if the right be imperfectly conferred, 
 it makes little difference whether the right is called a cove- 
 nant or an easement. 
 
 Attention will be called to the frequent recognition of the 
 running of these covenants as covenants in America, and the 
 reader may then pass to the class of covenants to be discussed 
 in the next section. 
 
 Covenants or stipulations for ways were recognized as run- 
 ning in Dailey v. Beck, 4 Clark (Pa.) 58; Avery v. N. Y. 
 Cent. Ey. Co., 106 E". Y. 142 ; Baltimore v. White, 62 Md. 
 362; Brew v. Vandeman, 6 Heiskell 433; Gibson v. Porter, 
 15 S. W. Kep. 871 (Ky.). Covenants to leave ground open 
 were recognized in Hills v. Miller, 3 Paige 254, and Water- 
 town V. Cohen, 4 Paige 510. 
 
224 OF THE CLASSES OF COVEITANTS 
 
 SECTION 4. 
 
 COVENAI^TS COMPELLING OE EESTEICTING BUILDING TO A PAE- 
 TICULAE LINE. 
 
 It is very common in laying out additions to the residence 
 portion of cities where the houses are expected to extend the 
 full width of the lots, to require by covenants that the fronts 
 of houses shall not extend beyond a fixed line; and there 
 seems no reason why covenants should not be used in smaller 
 communities where ground is not so valuable to compel the 
 owners to build up to a particular line. The purpose for the 
 covenants is the same, namely to obtain a symmetry in the 
 properties which adds to the beauty, and therefore to the 
 value of the locality. But while covenants restraining the 
 building are of most frequent occurrence, no case has pre- 
 sented itself of a covenant compelling building to a line. As 
 the operation in courts of law would be the same, both forms 
 have been included in the subject of the section, though a 
 case involving covenants compelling building up to a line 
 does not seem to have been presented for litigation. In 
 courts of equity, however, the operation of the two covenants 
 would be different; for a covenant compelling building to a 
 line is not a covenant to be passive, while a covenant restrict- 
 ing to a line is a covenant to be passive. If an owner should 
 attempt to build back of a line up to which it was stipulated 
 that he should build, a court of equity might have some diffi- 
 culty in finding how to make him change it. If the house 
 were once completed, the court would hardly be justified in 
 making him tear it down, and of course it has no power to 
 make him add to it in front; while if it were possible to 
 tell beforehand that the owner was not going to build to the 
 line, the most the court could do would be to enjoin him 
 from building at all, which it would hardly be justified in 
 doing. 
 
MOST FBEQUENTLY OCCUEEING. 225 
 
 If, on the other hand, the owner should attempt to vio- 
 late a covenant restricting his line, and should begin to build 
 beyond it, it is apparent that the court would have no diffi- 
 culty whatever in enjoining him from building to the extent 
 that he should be advancing beyond the line. The reason 
 of this will appear clearly in the next chapter when the 
 rights and powers of equity will be discussed in connection 
 with all covenants. It is referred to here, only to show that 
 a covenant compelling building to a line is a covenant the 
 breach of which can be taken cognizance of only in a court 
 of law, where the rights of the injured sound in damages; 
 while the covenant restricting to a line can be regarded in law 
 where its breach gives right to damages, or may be enforced 
 in form in chancery as well as by injunction. 
 
 As the former covenant apparently has not been litigated, 
 no more need be said about it ; but the latter is very common, 
 so it had best be examined further. The right to restrict 
 building to a line is one of the most common of the restrictive 
 covenants, and in England constitutes, along with the cove- 
 nants in the next section, the greater part of the subject mat- 
 ter of so-called equitable easements. As shown in Chapter 
 VII the burdens of covenants do not run at law in England 
 at all, nor in the states of ISTew Jersey and Virginia. They 
 are enforced under certain conditions in equity where the 
 successors have notice of them ; and the theory under which 
 they have been enforced will appear in the next chapter to be 
 that they confer rights similar to easements. This is thor- 
 oughly apparent from the doctrine repeatedly referred to in 
 this book that all covenants which run with land are in the 
 nature of easements. The theory applied to restrictive cove- 
 nants is that the right to compel a man to leave his land 
 open to a line is an easement. And while this may be true 
 in cases where by the covenant the use of the property in 
 the front of each house is given to the city for parking, and 
 the easement is thus in the public ; it would seem to be untrue 
 
226 OF THE CLASSES OE COVENANTS 
 
 where the purpose of the covenant is to give the adjoining 
 owners a right to restrain each other to a line. Certainly 
 in this case it is not one of the historical subjects of ease- 
 ment. It is not for passage, occupation, outlook, or air. 
 It is merely for an appearance of symmetry. So, too, it 
 must be enforced in limine, or it is useless ; while all other 
 easements are enforced only to a reasonable degree. 
 
 The difficulty of regarding the right as an easement will 
 appear more distinctly in equity where formal matters are 
 largely disregarded and the gist of the right conferred by the 
 covenant is before the court for determination ; and as it has 
 never been maintained that the covenant granted an easement 
 binding at law, it may be doubted whether this easement is 
 anything but an equity creation. Its development is an ac- 
 complishment of the English courts, to take the place with 
 them of the legal running covenant. By calling restrictive 
 covenants equitable easements, they secured their running, 
 though the ordinary covenant they thought could not run. 
 As a covenant, this particular right has not been commonly 
 passed upon by courts of law. Since reparation for its breach 
 is so complete by injunction at the very outset of the build- 
 ing, there has been little or no occasion to plaintiffs to await 
 damage enough to warrant an action at law. 
 
 The examinations of cases in equity are postponed for the 
 next chapter, where the covenant attracts considerable at- 
 tention. But in Green v. Creighton, 7 E. I. 1, and Howard 
 Mfg. Co. v. Water Lot Co., 53 G-a. 689, the recognition of 
 the burden of the covenant as a burden at law seems to 
 have obtained. There is no reason to believe, however, that 
 the covenant would not be as thoroughly recognized at law as 
 any other, where the formal requisites of all covenants have 
 been observed as set forth in Chapter IX. But the decisions 
 may sometimes give trouble to the investigator. 
 
 Since the American courts have not very carefully exam- 
 ined the doctrine of equitable easements, they have sometimes 
 
MOST TEEQUENTLY OCCUBKIITG. 227 
 
 "taken the stand of allowing covenants to run as legal cove- 
 nants and at the same time have impliedly denied their run- 
 ning by recognizing the notion of so-called equitable ease- 
 ments. Moreover, this causes in equity the extraordinary 
 condition of having tv70 ideas of the identical right, an un- 
 usual lack of economy in Common Law jurisprudence. By 
 recognizing the restrictive covenant as good at law, they 
 recognize it as good in equity, so that for its enforcement 
 •on the legal theory notice would not be necessary in equity ; 
 while for its enforcement as an equitable easement, as we 
 shall see, notice would be necessary. 
 
 The running of benefits has not been separately noticed 
 because it was pointed out in Chapter VII that the running 
 of benefits of all covenants properly created is probably recog- 
 nized everywhere at law as well as in equity. 
 
 SECTION 5. 
 
 COVENANTS EESPECTING THE KINDS OF USES pE PEOPEETT IN 
 A PAETICULAE LOCALITY. 
 
 These covenants, like those discussed in the preceding sec- 
 tion which restrict building to a line, are in nature restrict- 
 ive covenants, and most easily enforced by injunction in 
 equity. They are all included under the English equitable 
 easement. But while one can see how a court, seeking to 
 sustain a restrictive building line covenant, might be led to 
 call the right to enforce the restriction an easement, it is 
 difiScult to find any pretense upon which to call the rights 
 treated in this section easements. This class of covenants 
 embraces covenants that property shall not be used for busi- 
 ness purposes, covenants that some special business undesir- 
 able, though not necessarily a nuisance to neighbors, shall not 
 be pursued on the property, and covenants that the same 
 "business for which one piece of property is sold shall not be 
 
228 OF THE CLASSES OF COVEH'AN'TS 
 
 allowed upon remaining property of the grantor. So, too,, 
 we hear of covenants that no houses of less than a particular 
 value shall be built upon the property in question. 
 
 It is useless to reiterate the ordinarily accepted subjects- 
 of easements. That was done to some extent in the preceding 
 section, and more fully treated in Chapter I and Chapter III. 
 Suffice it to say that no distinctly recognized legal easement, 
 executed as such, has been found conferring the rights in- 
 tended to be conferred by this class of covenants.-' And 
 while they are called in England equitable easements, as is 
 explained in the next chapter, the English courts admit that 
 they cannot be perfected as legal covenants, but are fanciful 
 creations of chancery. It may be well to note in passing that 
 they need cause no thought as to whether they are subjects 
 of dedication. Dedication is probably limited to public or 
 quasi public uses (Cf. 2 Blackstone Com. Cooley's ed., page 
 35, note,), while these covenants give rights to individuals 
 or some collection of individuals more or less small. 
 
 But whether regarding these rights as running covenants, 
 as may be done in America generally, where the burdens of 
 covenants run, or as merely equitable obligations, as is done 
 even where the running of covenants is repudiated, their 
 usefulness cannot be overestimated. They constitute the only 
 means by which permanent uses of property can be secured, 
 and so are almost essential as a basis for the safe investment 
 of large amounts of money in building in new localities. They 
 secure the character of residence districts, not only by ex- 
 press stipulation as to the cost of houses, but more effectually 
 by agreements that no offensive industries shall be allowed 
 in proximity. And while it is more difficult by agreement, 
 to regulate the locus of business, they may be very useful 
 
 1 In McMahon v. Williams, 79 Ala. 288, the agreement not to carry- 
 on a general -warehouse business -was called an easement. But the 
 court relied upon English cases of equitable easements, it would 
 seem, and do not discuss clearly the subject matter of easements. 
 
MOST PEEQUENTLY OCCUEEING. 229 
 
 in introducing business, to prevent profits from being de- 
 stroyed by too many business establishments of the same 
 Mnd. 
 
 It will be readily appreciated that some covenants of the 
 kind are very useful to land companies in the opening up of 
 their property ; and the decisions both in England and Amer- 
 ica show the great frequency of their employment. But it 
 is no less apparent that they may be of great service to 
 individual landowners in selling off part of their small prop- 
 erties without injury to themselves at the same time that 
 they can be used as inducements to the vendee to purchase. 
 
 At first blush there would seem great danger of their in- 
 discriminate and injudicious employment. But as the com- 
 mon means of enforcing them is in equity, on account of the 
 usual desire to stop their infringement in the first stage, it 
 will be realized that all equities may be considered in the 
 granting of an injunction. Moreover, if action be allowed 
 at law, damage is always to be governed by the real injury. 
 But of this more fully in the next chapter. 
 
 In England the use of these covenants has been very com- 
 mon ; but as they are not now recognized there out of chan- 
 cery, and as they constitute so large a proportion of the re- 
 strictive covenants which are the only covenants recognized 
 in England at all, the discussion of the English cases to- 
 gether with the discussion of the whole subject in equity, 
 both in England and America, is postponed for the next 
 chapter. 
 
 As to their formalities, in equity, like all covenants, the 
 requirements are not so explicitly followed as at law. Some- 
 times, indeed, the agreement may be verbal ; or may depend 
 upon some chart or plan shown to the parties to be bound at 
 the time they make their purchase. The cases are taken up 
 in the next chapter. But in law, there is no reason to believe 
 that the formal requisites are in any way different from 
 those laid down for covenants in general. So they may be 
 
230 OF THE CLASSES OF COVENANTS 
 
 followed out by referring at once to the various sections of 
 Chapter IX. 
 
 The occasion for considering these covenants in courts 
 of law has presented itself more frequently, for some rea- 
 son, than was the case with the restrictive covenants discussed 
 in the preceding section. In America, where most of the 
 states recognize the running of the burden of covenants, as 
 was seen in Chapter VII, these covenants were enforced as 
 running legal obligations, and so probably binding at law, 
 in Muzzarelli v. Hulshizer, 163 Pa. 643; Landell v. Hamil- 
 ton, 175 Pa. 327; Snyder's License, 2 Pa. Dist. Ct. 785; 
 Norcross v. James, 140 Mass. 188 ; Post v. Weil, 115 K Y. 
 361 ; Clement v. Burtis, 121 IT. Y. 708 ; Halle v. N'ewbold, 6& 
 Md. 265; Hatcher v. Andrews, 5 Bush 561; Bobbins v. 
 Webb, 68 Ala. 393 ; McMahon v. Williams, 79 Ala. 288 ; and 
 Hottell V. Parmers' Protective Assn., 53 Pac. Eep. 327 
 (Colo.). But in Brewer v. Marshall, 18 IST. J. Eq. 337, same 
 case, 19 IST. J. Eq. 537, and in other cases in ISTew Jersey it is 
 held that even restrictive covenants do not bind in law courts. 
 The same was decided in Tardy v. Creasy, 81 Va. 553. And 
 it is probably law in Ohio and Missouri that these covenants 
 do not bind at law. See Chapter VII. 
 
CHAPTEE XI. 
 
 ENFOECEMENT OF COVENANTS IN EQUITY AND EQUITABLE 
 
 EASEMENTS. 
 
 The scope of rights in equity for parties to agreements 
 running with land is necessarily narrower than would be the 
 scope where the covenants are recognized at law. This is 
 owing to the limits upon equity jurisdiction; for it has al- 
 ways been the theory that a court of equity could not compel 
 a delinquent to do anything which the court could not man- 
 age for him in case of his ultimate refusal. Thus a contract 
 for active services cannot be enforced because the court has no 
 way to compel the delinquent to serve., The so-called man- 
 datory injunction has been recognized in certain cases, but 
 the English courts have refused, as we shall see, to grant such 
 a remedy for the enforcing of covenants running with land. 
 At the outset, then, it is evident that any covenant to do 
 something, whether recognized as running at law or not, 
 cannot generally be enforced in equity, for the court's lack 
 of a means; so that when those covenants are imperfectly 
 made, if an assignee is unwilling to carry out the agreement, 
 the party who would complain is probably without a satis- 
 factory remedy of any sort. But if the problem of enforcing 
 covenants in equity is embarrassing in jurisdictions which 
 recognize the running of covenants at law, there would seem 
 to be even greater diiEculties where the notion has not been 
 accepted that the covenant would be a good running obliga- 
 tion at law. In such jurisdictions the problem for the court 
 of equity is not only how to enforce the agreement which 
 the parties contemplated, but what sort of agreements equity 
 could enforce, even if it has the means to enforce any at all. 
 
 231 
 
232 ENFORCEMENT OF COVENANTS IN 
 
 When the English courts decided that a covenant could 
 not run with the land as a Common Law right^ they at once 
 limited their theory of rights in equity to such rights as 
 could be enforced by injunction. They recognized what they 
 construed to be restrictive covenants, and confined their 
 recogTiition to them because these were the only sort of cove- 
 nants which the courts thought they could enforce in specie. 
 But although the English courts practically agreed to enforce 
 any sort of covenant that could be enforced specifically by 
 an injunction, they have never decided exactly what the 
 nature of the right is that they have been enforcing. It 
 is impossible to call it a covenant running with the land, 
 for enforcing a restrictive covenant by injunction is simply 
 granting specific performance of the covenant ; and as it has 
 been assumed by those courts that the covenant is not legally 
 binding upon assigns, to grant specific performance of it in 
 equity as a covenant is a contradiction. The right has there- 
 fore been referred to with a great deal of uncertainty, some- 
 times being called a sort of equitable easement, and sometimes 
 being classed as a sort of trust or a mere equitable charge. 
 It would seem, however, that it cannot find shelter within 
 any of these recognized classes of rights. It is not an ease- 
 ment, because it is not a right against the land ; and it is not 
 a right against the land, because it is assumed that it cannot 
 be made an executed right against the land binding at law, 
 for it cannot be granted out of the land. The English courts 
 always say that it binds only holders of the land with 
 notice; that is to say, like all rights in equity, it is a right 
 in personam, not a right in rem. 
 
 Moreover, it may be noted that many of the rights con- 
 ferred by these restrictive covenants have never been thought 
 capable of being subjects of easements; for instance a cove- 
 nant not to put a particular sort of building on a certain lot. 
 And while some restrictive covenants have conferred rights 
 very similar to easements, such may well be taken in equity 
 
EQUITY AND EQUITABLE EASEMENTS. 233 
 
 as easements at once; as covenants to leave wsljs or plots of 
 ground open for passing or for recreation purposes. 
 
 Nor may the right be well classed as a trust. If it were 
 a trust, by assumption it would be something separate and 
 distinct, capable of being held. In order to a trust, there 
 must be a res, something held in trust, which one party 
 holds as conceivable property, for the benefit in equity of 
 someone else. But in the case of a covenant in equity, there 
 is no res, for the land is not held to the benefit of the cove- 
 nantee, and the restriction or servitude is not property in 
 the hands of the owner of the land subject to it. The utmost 
 that can be conceived is the abstraction of the easement or 
 negative right as a privilege, but as the legal ownership of it 
 must be recognized in some one, and as the covenantee, by 
 hypothesis, is not the owner in law, then the legal owner 
 must be the owner of the land out of which it comes. But 
 the owner of the land cannot be conceived as owning a sep- 
 arate servitude in his ovm land; so the servitude cannot be 
 said to exist as a thing. 
 
 The nearest thing in law to the recognition of such separa- 
 tion of title is probably the separation of title in land held 
 as in common. A can own land in entirety, but hold an 
 undivided half as his own, and an undivided half in trust for 
 B. But it is evident that such a case is different from the 
 incorporeal charge, because the Common Law recognizes in 
 tenure in common two or more separate corporeal objects 
 of property as actually existent, though concrete; whereas 
 easements or servitudes, though conceived as separable, are 
 not recognized by the Common Law until actually separated 
 in title, for they are never corporeally separable from the 
 land out of which they arise. More concisely, the owner of 
 land in law may always be conceived as the owner of two 
 halves of the land, but the owner of the land may never be 
 conceived as the owner of the land and the owner of a servi- 
 tude against the land at the same time. Such is a peculiarity 
 
234 ENFOECEMEIiT OF COVEITANTS IN" 
 
 of Common Law that while the lawyers conceived a servi- 
 tude as property for certain purposes, they did not conceive 
 it as property for all purposes; they would not go full 
 length. This matter is made clearer in the third chapter of 
 this essay. 
 
 But, though the covenant be not a trust, it is not yet proven 
 not to be a sort of equitable charge, as a rent charge or an 
 equitable easement properly speaking. If there is such a. 
 thing as an equitable charge which cannot be made a legal 
 charge, then such a conception of covenants is possible. 
 Equitable rent-charges and equitable easements in general 
 are merely due to a recognition of rights which were never 
 completed at law; and while not in any sense trusts, as has 
 just been seen, they are enforceable in equity because grant- 
 able at law, and because as a last resort a court of equity can 
 imprison the delinquent until he consents to complete the 
 legal title by a conveyance good in law. Undoubtedly this 
 is the theory upon which principles of equity are based for 
 the specific enforcement of all trusts and contracts. Equity 
 will complete any rights which were left imperfect at law, 
 and it is believed that this is the limit of equity's remedial 
 jurisdiction. An apparent exception is the method of enforc- 
 ing express trusts ; for in case of the trustee's failure to carry 
 out the trust, equity will appoint a new trustee. But while 
 the various rights against the trustee are not merely rights- 
 incomplete at law, they are rights which could be perfected 
 at law, by ultimately compelling the trustee to convey the 
 trust to another, or to reconvey it to the grantor or his heirs. 
 
 The strength of an argument in support of enforcing cove- 
 nants in equity where they are not recognized at law, comes 
 down, therefore, to this: Although the courts assume that 
 there is no sufficient ground in the history of the Common 
 Law to recognize covenants running with the land, they 
 think that the usefulness of such covenants and the equity 
 in them commends them as desirable. So, although a court 
 
EQUITY AND EQUITABLE EASEMENTS. 235 
 
 of equity cannot perfect the legal rights by compelling the 
 parties to execute a covenant which will run, yet such cove- 
 nants as amount to contracts not to do something on the 
 land — restrictive covenants — will be specifically enforced 
 where it can be accomplished by injunction, and where the 
 parties were on such notice that they could have conducted 
 themselves in accordance with what was expected of them 
 without suffering injustice. It now remains to be seen how 
 far the courts have followed this line of suggestion and to 
 what extent they'have reached this conclusion. 
 
 Where it has been broadly stated, as in Lydick v. B. & O. 
 Ey., 17 W. Va. 427, that whenever a covenant is such as 
 could run, it will be enforced in equity though it will not run 
 at law, it must be taken that in that jurisdiction covenants 
 will run at law, and that the court treats that covenant as an 
 equitable charge, perfectable by compelling the parties to 
 execute a complete covenant. 
 
 The notion of the right in equity commonly called an 
 equitable easement, while perhaps new in its application, was 
 not intended to present anything more than the principles of 
 equity which had been recognized ever since that branch of 
 the law had been developed. The doctrine was developed in 
 England in connection with a repudiation of the doctrine 
 that covenants run with the land at law, and as it became at 
 once useful in taking the place of that older doctrine as a 
 remedy for the breach of such agreements, it became at 
 once customary to regard it as a substitute for any running of 
 covenants at law. Thus several statements were made about 
 it in later opinions which can hardly be said to be true, al- 
 though, of course, they have some truth in them. Witness 
 Sir George Jessel's view of a covenant in equity as either an 
 extension in equity of the doctrine of Spencer's Case or an 
 extension in equity of the doctrine of negative easements.* 
 
 1 L. & S. W. Ry. V. Gomm, 20 Ch. D. 562. 
 
 17 
 
236 EISTFOECEMENT OF COVENANTS IJST 
 
 Yet tlie idea was not confined to the mere running of cove- 
 nants proper, for the court regarded these equitable obligations 
 binding when oral as well as when written, and considered 
 them rather an equitable claim upon the land. So indeed 
 it may be questioned whether the principle has anything to do 
 with the running of agreements at all. It is true that at first 
 it seems to have been enforced as the running in equity of 
 covenants. In Whatman v. Gibson, 9 Sim. 196, Sir John 
 Leach enforced a covenant not to build an inn where the 
 assign had notice, though doubting whether it would run at 
 law, and again a similar agreement was treated as a covenant 
 in Mann v. Stevens, 15 Sim. 377 ; but the notion of distinct 
 equity rights seemed to control the court in the Duke of Bed- 
 ford V. The Trustees of the British Museum, 2 M. & K. 652, 
 and Lord Brougham repudiated the doctrine of covenants 
 running under any circumstances in Keppell v. Bailey, 2 
 M. & K 517. 
 
 But the real declaration of the application of general 
 principles of equity to cases of covenants came in Tulk v. 
 Moxhay, 2 Phil. 774 ; and this is always referred to as the 
 foundation of the doctrine of equitable easements. It was a 
 petition for an injunction to restrain the defendants from 
 building on an open square. The plaintiff had sold this 
 square to the defendant's assignor, who had covenanted to 
 allow it to remain open and to allow the plaintiff's tenants 
 the freedom of it. The defendant took title with notice of 
 the covenant. The court, Lord Chancellor Cottenham, al- 
 lowed the injunction. In the course of the opinion he is 
 reported to have said: "It is said that the covenant, being 
 one which does not run with the land, this court cannot en- 
 force it; but the question is not whether the covenant runs 
 with the land, but whether a party shall be permitted to use 
 the land in a manner inconsistent with the contract entered 
 into by his vendor, and with notice, of which he purchased." 
 * * * "That the question does not depend upon whether 
 
EQUITY AND EQUITABLE EASEMEM"TS. 237 
 
 ■the covenant runs with the land, is evident from this, that if 
 there was a mere agreement and no covenant, this court would 
 enforce it against a party purchasing with notice of it ; for if 
 an equity is attached to the property by the ovsmer, no one 
 purchasing with notice of that equity can stand in a different 
 situation from the party from whom he purchased." 
 
 It is very clear that Lord Cottenham thought the plaintiff 
 had a claim upon the land; but as the Common Law effect 
 of covenants is discarded, some other sort of claim must be 
 meant. Of course, if the intention of the parties had been 
 to throw some sort of recognizable claim upon the land, the 
 purchaser with notice of this intention would be bound by it. 
 But is there an instance where equity recognizes a claim 
 upon land which could not have been perfected at law ? Here, 
 however, it has been assumed that there could be no legal obli- 
 gation upon the land, that the covenantor could not have 
 bound his land by this means. His undertaking carried out 
 to its fullest extent, bound merely himself; and if he did 
 not also contract not to alien the land, how could his suc- 
 cessor, though purchasing with full knowledge, have his con- 
 science bound? To say otherwise would be to assume that 
 the covenantor could have bound the land, and had failed 
 to do so, — exactly the contradictory of what was assumed. 
 
 But it is said that the covenantor could have bound the 
 land by an easement granted, and so any attempt at that 
 would create a charge upon the land. Now a court of equity 
 might very well say that if an ultimate end was intended,, 
 and that possible, though the means attempted be inadequate, 
 that shall not bar the eilect of the end, and so the easement 
 shall be a charge upon the conscience of a successor. Indeed, 
 it is an old doctrine in some instances at law that a convey- 
 ance attempted imperfectly one way may be good by another 
 which was unwittingly fulfilled. See Callard v. Callard, 
 Moore 687, pi. 950, s. c. Popham 47. But this view throws 
 the right distinctly into the domain of easements, and it be- 
 
238 ENPOECEMENT OF COVENANTS IN 
 
 comes necessary to limit its effect to sucli covenants as could 
 be subjects of an easement. While this was hardly the view 
 Lord Cottenham had in mind, it is very evident that the right 
 in Tulk V. Moxhay could have been the subject of an ease- 
 ment, the right to keep a park unbuilt upon — for the purpose 
 of passing to and fro perhaps, or to enjoy light and air. 
 
 But though that case may be so explained, the trouble 
 begins when we reach the next case of Coles v. Sims, Kay 56, 
 appealed, 5 DeG. M. & G. 1, and Child v. Douglas, Kay 560, 
 5 DeGr. M. & G. 739, where the covenant was that buildings 
 should not extend beyond a line. What here is the subject 
 of the easement ? The right to keep buildings up to a line ? 
 It would seem that it must be an easement of light and air. 
 But neither the light nor the air would be materially inter- 
 fered with by an encroachment of several inches, indeed, sev- 
 eral feet beyond the agreed line ; and equity will not restrain 
 by injunction unless the damage is clear to the plaintiff. 
 Yet one foot, two feet, three feet would very materially de- 
 stroy the symmetry of the block, so that the covenant would 
 be entirely ineffective unless enforced in limine; and the 
 courts have required that the exact line be recognized. 
 
 Again come the covenants for some peculiar restriction 
 of the use of land, as in Mitchell v. Steward, 1 Eq. 541, 
 where the covenant was not to erect a tavern on the land. The 
 same covenant was enforced by injunction in Jay v. Richard- 
 son, 31 L. J. Ch. 398 ; Carter v. Williams, 9 Eq. 678 ; Sayers 
 v. CoUyer, 24 Ch. D. 180. So a covenant not to use the land 
 for business. Tyndall v. Castle, 1893, W. K 40; Everett 
 V. Eemington, [1892], 3 Ch. 148. These can hardly be called 
 subjects of easements ; and even though that view might be 
 possible, that it is not the one taken was evident from Wilson 
 V. Hart, L. E. 1 Ch. Ap. 463. The covenant was not to erect 
 a beer shop. Assigns were not mentioned in the covenant, 
 and the defendant was a lessee without express notice. The 
 court held that the covenant could not run to bind the land 
 
EQUITY AND EQUITABLE EASEMENTS. 239 
 
 as it was not so intended, but only the use by the person was 
 covered; yet the defendant took under such circumstances 
 that he should have inquired into the limitations, and so was 
 bound by the doctrine of Tulk v. Moxhay not to erect a beer 
 house. 
 
 It is settled, therefore, that the right extends to enforcing 
 any covenant intended to limit the form of erections on the 
 land either in the sort of buildings, the entire freedom from 
 buildings, or the locality of buildings. See in addition to 
 the cases already given, McLean v. McKay, 5 P. C. 327; 
 Lord Manners v. Johnson, 1 Ch. D. 673 ; Richards v. Eevett, 
 1 Ch. D. 224; Taite v. Gosling, 11 Ch. D. 273; King v. 
 Dickeson, 40 Ch. D. 596; McKenzie v. Childers, 43 Ch. D. 
 265 ; Bowes v. Law, 9 Eq. 636 ; Harrison v. Good, 11 Eq. 
 338 ; Kemp v. Bird, 5 Ch. D. 549, 974; Hall v. Box, 18 W. 
 E. 820; Eussell v. Baber, 18 W. R. 1021; Eenals v. Cowli- 
 shaw, 9 Ch. D. 125, 11 Ch. D. 866. 
 
 Of course the covenants to sell the land on certain occur- 
 rences could not be theoretically objected to, as they would 
 represent a clear equitable charge upon the land itself, so as 
 to necessitate its becoming a simple trust in the hands of any 
 bolder with notice ; as in the case of Birmingham Canal Co. 
 V. Cartwright, 11 Ch. D. 421, and L. & S. W. Ey. v. Gomm, 
 20 Ch. D. 562, both stated above, provided, of course, the 
 rule against perpetuities be not offended against. 
 
 And many more covenants may be discovered which may 
 be construed properly as easements. Thus in Moreland v. 
 Cook, 6 Eq. 252, original owners had divided land subject to 
 the agreement to maintain a seawall, and Lord Eomilly al- 
 lowed the assignee to bring a bill to compel another assignee 
 to pay his half of the repairs. It is probable that Lord Eom- 
 illy let this run on the main principle, afterward repudiated, 
 that the burden of a covenant would run with the land ; but 
 as such a right to have seawalls maintained seems sometimes 
 to have been acquired by prescription at Common Law (see 
 
240 EH'FOECEMEH'T OF COVENAISTTS IN 
 
 The King v. Commissioners of Sewers of Essex, 1 B. & 0, 
 47Y), there is good reason to hold it the subject of an ease- 
 ment and enforceable as such in equity. And so perhaps 
 the court in England might treat a covenant to fence in the 
 same way. Indeed it might have been more satisfactory if 
 the courts in establishing the theory of equitable easements, 
 had fortified themselves by taking Mr. Justice Holmes' the- 
 ory that all covenants were but easements, active or inactive, 
 for they could then have been charges on the land. But while 
 the covenant in Morland v. Cook was a covenant to repair 
 the seawall, it is by no means certain that the English Courts 
 would enforce a covenant to repair. In two Massachusetts 
 cases, where the opinions were delivered by Mr. Justice 
 Holmes, there was a tendency to treat an obligation to re- 
 pair, like an obligation to fence, as a spurious easement, 
 Middlefield v. Knitting Co., 160 Mass. 267, and Norcross 
 V. James, 140 Mass. 188, the latter pointing out the old 
 English tendency to liken repairs to estovers and other rights 
 of common. 5 Eep. 24 a. b. ; F. N. B. 127; Brett v. 
 Cumberland, 1 Boll. Rep. 359, 360; Ewre v. Strickland, 
 Cro. Jae. 240, etc. ; Hyde v. Dean of Windsor, Cro. Eliz. 
 552, 553. And so Mr. Justice Holmes, H. C. L., p. 402, 
 says: "It has already been observed that an easement of 
 fencing may be annexed to land, and it was then asked what 
 was the difference in kind between a right to have another 
 person build such structures, and a right to have him repair 
 structures already built." 
 
 But however the modern English Courts might acknowl- 
 edge the obligation to repair a fence, they are unwilling to 
 let the reason fall away and carry a covenant to repair gen- 
 erally any sort of structures. Hayward v. Brunswick Build- 
 ing Society, 8 Q. B. D. 403, decided that a covenant to repair 
 buildings on land received charged with a ground rent, could 
 not bind the assignee; for Lord Justice Brett said: "I 
 think . . . that Cox v. Bishop, 8 DeG. M. & a. 815, 26 
 
EQUITY AND EQUITABLE EASEMENTS. 241 
 
 L. J. Ch. 389, shows that a court of equity has refused to 
 extend the rule of Tulk r. Moxhay in the direction con- 
 tended for, and that if we decided for the plaintiff we should 
 have to overrule that case," though the court was considering 
 the case merely as antagonistic to the limitation to restrict- 
 ive covenants, and did not refer to the idea of a spurious 
 easement. And in Austerberry v. Oldham, 29 Ch. D. 750, 
 the Court of Appeal held that it could not thus enforce the 
 covenant to repair a road, where Lord Justice Cotton said 
 of Morland v. Cook, "So although in terms it was a cove- 
 nant, it was a covenant by three parties that the expense 
 should be paid out of their proportions of the land by an 
 acre-scot payable thereout in the same proportions in ready 
 money. That is, therefore, really a grant by each of the 
 parties of a rent charge of so much money as would be 
 equivalent to his proportion of the total expense of repair- 
 ing the seawall." So there is very little chance to explain 
 the anomalous equitable easement even by adopting the other 
 historical theory that all covenants are easements at Com- 
 mon Law. 
 
 Of course the covenant or agreement to pay a rent charge 
 would be binding upon the holder of the land with notice 
 under the ordinary principles of equity; and of the same 
 nature would be the American agreement to pay half the 
 cost of a party-wall. Sharp v. Cheatham, 88 Mo. 498, 
 Maine v. Cumston, 98 Mass. 317.-' And, indeed, it would 
 therefore make no difference whether the covenant so made 
 affected the particular land or any other land of the cove- 
 nantor, as he could create an equitable charge on any land. 
 In Daniel v. Stepney, L. E. 7 Ex. 327, A leased coal land 
 to B, who covenanted that if rent was not paid A might dis- 
 train on this land or other lands of B. B sold the other lands 
 to the defendant with notice of the agreement, and on B's 
 
 1 For a full discussion of this case see supra, p. 191. 
 
24:2 ENFOECEMENT OE COVENANTS IN 
 
 failure to pay the agreed rent A sought to distrain upon the 
 lands in the hands of the defendant. On trespass brought, 
 A sought to set up the covenant as an equitable plea. The 
 court held that the covenant could not bind these lands, 
 however it might bind the lands received from A ; but on ap- 
 peal to the Exchequer Chamber, L. E. 9 Ex. 185, the judg- 
 ment was very properly reversed. 
 
 But however questions involved in the cases on equitable 
 easements may trouble the student, or cause great doubt as 
 to the decisions in new jurisdictions, the English Courts 
 have reduced the whole matter to the question whether the 
 covenant is restrictive or not. If the covenant is one which 
 limits the covenantor's use of his land so that a court of 
 equity can enforce it by an injunction, it may be pretty well 
 accepted that one can enforce his claim by the aid of the 
 court. In Haywood v. Brunswick Building Society, 8 Q. B. 
 D. 403, Lord Justice Brett said : "Now the equitable doc- 
 trine was brought to a focus in Tulk v. Moxhay, 2 Phil. 774, 
 which is the leading case on this subject. It seems to me 
 that that case decided that an assignee taking land subject 
 to a certain class of covenants is bound by such covenants 
 if he has notice of them, and that the class of covenants com- 
 prehended within the rule is that covenants restricting the 
 mode of using the land only will be enforced. It may be 
 also, but it is not necessary to decide here that all covenants 
 also which impose such a burden on the land as can be en- 
 forced against the land, would be enforced. Be that as it 
 may, a covenant to repair is not restrictive, and could not 
 be enforced against the land; therefore such a covenant is 
 within neither rule. It is admitted that there has been no 
 case in which any court has gone farther than this, and yet 
 if the court would have been prepared to go further, such 
 a case would have arisen." And Lord Justice Cotton said: 
 "We find that they have been invariably enforced if they 
 have been restrictive, and that with the exception of the cove- 
 
EQUITY AND EQUITABLE EASEMENTS. 243 
 
 nants in Cooke v. Chilcott, only restrictive covenants have 
 been enforced." The court then disapproved Cooke v. Chil- 
 cott. And again in Austerberry v. Oldham, 29 Ch. D. 750, 
 the question being on a covenant to maintain a road, and 
 whether the principle of Tulk v. Moxhay could be applied to 
 it, Lord Justice Lindley said that after the two decisions of 
 Haywood v. Brunswick Building Society, 8 Q. B. D. 403, 
 and London & South Western Ry. Co. v. Gomm, 20 Ch. D. 
 562, that argument was untenable. 
 
 The old case of Holmes v. Buckley, 1 Eq. Cas. Abr. 27, 
 might be taken as the basis for another doctrine. That was 
 a case where a bill to enforce the cleaning of a water course 
 granted by the defendant's assignor with a covenant to 
 cleanse, was allowed to the grantee's eventual assignee. The 
 court held that it was a covenant running with the land on 
 both sides. But of this Lord Justice Lindley said in Auster- 
 berry v. Oldham: "In the first place it is quite plain that 
 there the plaintiff had a cause of action; he was entitled 
 to an injunction of some sort to restrain the defendants from 
 interrupting his water course. The right of the plaintiff 
 to enforce specifically the covenant to repair, or rather to 
 cleanse the water course is obscure, and we have not got the 
 •decree which was pronounced; and I confess that having 
 only that short note of it which is to be found in Equity 
 Cases Abridged, I fail to understand the exact grounds of 
 that decision, specifically enforcing that covenant to cleanse. 
 I doubt whether it was a decision to that effect ; but the case 
 is too loosely reported to be a guide on the point." 
 
 One of the principles proceeded upon all along was, we 
 see, that there was no way in equity to enforce any but a 
 restrictive covenant. But even after the recognition of the 
 power of the court to grant mandatory injunctions Lord Jus- 
 tice Brett thought that in spite of this, to enlarge the rule 
 would be to make a new equity, and that they could not do. 
 Haywood v. Building Society (supra) ; and see London & 
 
244 ENFOECEMENT OP COVENANTS IN 
 
 So. W. Ey. V. Gomm, 20 Ch. D. 562 ; Austerberry v. Old- 
 ham (supra). In Andrew v. Aitken, 22 Ch. D. 218, to- 
 gether with a covenant that a ground rent should issue, was 
 a covenant to build houses to insure the rent, and the court 
 held that probably the covenant bound the assignee to the 
 extent of allowing building, but would not hold him to do the 
 building himself. 
 
 The running of the benefit of the covenant in equity, of 
 course occasions no difficulty. If the burden is granted the 
 person intended to take advantage of it would have rights 
 aside from any notion of covenant or the legal running of 
 the covenant with the land. Thus Lord Justice Selwyn said 
 in Keats v. Lyon, L. R. 4 Ch. 218 : "The questions which 
 have arisen with respect to the devolution of the benefit of 
 covenants of this kind have been decided upon similar prin- 
 ciples, and equally without reference to any technical dis- 
 tinctions depending upon covenant running or not running 
 with the land." See also Whatman v. Gibson, 9 Sim. 196 ; 
 Eenals v. Cowlishaw, 9 Ch. D. 125 ; Shreiber v. Creed, 10 
 Sim. 9 ; Child v. Douglas, Kay 560, 5 DeG. M. & G. Y39 ; Mc- 
 Lean V. McKay, 5 P. C. 327 ; Lord Manners v. Johnson, 1 Ch. 
 D. 673 ; Taite v. Gosling, 11 Ch. D. 273 ; Tyndall v. Castle, 
 1893, W. K 40; Harrison v. Good, 11 Eq. 338; Hall v. 
 Box, 18 W. E. 820. 
 
 The American Law as to the rights and obligations in. 
 equity is not so clearly defined, because the rights in law 
 have been so generally indorsed; and wherever the court 
 would recognize the running at law, of course the covenantee 
 would get rights in equity to enforce the same covenant. 
 Muzzarelli v. Hulshizer, 163 Pa. 643; Bald Eagle Valley 
 Ey. V. Nittany Valley Ey., 171 Pa. 284 ; Avery v. Ey. 106 
 IST. Y. 147; McMahon v. Williams, 79 Ala. 288. But the 
 notion of equitable easements has not been uncommon, al- 
 though it has not been set out with the precision found in the 
 English Cases. The courts frequently speak of the ease- 
 
EQUITY AND EQUITABLE EASEMENTS. 245 
 
 ment as if it were a distinct easement at law, and at the 
 same time do not entirely cast away the idea that it was a 
 covenant running with the land. In Sharp v. Hopes, 110 
 Mass. 381, in considering the enforcing in equity of a build- 
 ing restriction the courts said : "It is undoubtedly true, and 
 has often been decided, that where a tract of land is divided 
 into lots, and those lots are conveyed to separate purchasers, 
 subject to conditions that are of a nature to operate as in- 
 ducements to the purchase, and to give to each purchaser the 
 benefit of a general plan of building or occupation, so that 
 each shall have attached to his own lot a right in the nature 
 of an easement or incorporeal hereditament in the lots of 
 the others, a right is thereby acquired by each grantee which 
 he may enforce against any other grantee." 
 
 Whether the court had in mind a fully legal easement or 
 merely an equitable easement is hard to decide. 
 
 In Mott V. Oppenheimer, 135 IST. Y. 312, a party-wall 
 agreement was held to run with the land because so intended 
 and either to constitute a Common Law obligation or a lien 
 on the land. The ISTew York court had already fully in- 
 dorsed the doctrine of Tulk v. Moxhay in carefully worded 
 language in Tallmadge v. East River Bank, 26 JST. Y. 105. 
 But in Truste^of Columbia College v. Lynch^ 4Y How. Pr. 
 (]Sr. Y.) 2Y3, an injunction was refused to restrain building 
 on an adjoining piece of land because the covenant had not 
 accompanied a grant of land, when it would be apparently 
 unnecessary to prove a grant if the covenant rested upon an 
 equitable charge of an easement and had nothing to do with 
 covenants running with the land. Compare also Brew, v. 
 Van Deman, 6 Heisk. 433, and Martin v. Martin, 44 Kan. 
 235. 
 
 Wor does it appear that the American courts are all agreed 
 in limiting the equitable doctrine of a charge to restrictive 
 covenants. In Countryman v. Deck, 13 Abb. N. C. 110, the 
 covenant to fence was enforced by an injunction ; and Lydick 
 
246 EITFOECEMEBTT OF COVEISTANTS IN 
 
 Y. B. & O. B.J., 17 W. Va. 427, held that the covenant to 
 maintain a switch did not run at law, for want of considera- 
 tion, but indicated that covenants parole not running at law 
 might be enforced in equity if of the nature to run. This 
 discussion was mere dictum, however. 
 
 Several cases, apparently the enforcement of covenants 
 not restrictive, may be explained as merely involving equita- 
 ble charges upon the land, and so clearly enforceable. It 
 must be admitted, nevertheless, that the courts have not al- 
 ways clearly put them upon this satisfactory basis. Carson 
 V. Percy, 57 Miss. 97, was a case where the owner of a plan- 
 tation along the Mississippi Eiver granted the plaintiff a 
 strip of it for a wharf with a covenant to deed him more if 
 the part granted should cave away. The plaintiff's bill for 
 specific performance was held enforceable against assignees 
 with notice. It might very well be an agreement to sell on 
 a certain future contingency, and so a charge upon all the 
 land ; but in that sense it is surprising that the defendant did 
 not set up the rule against perpetuities. The operation of 
 this rule was happily avoided in Van Doren v. Eobinson, 1& 
 ]Sr. J. Eq. 256, where the grantee of land had covenanted ta 
 resell to the plaintiff if she, the grantee, should cease to oc- 
 cupy the land, or that her heirs or assigns should resell it 
 on her death. The court held the covenant not to run with 
 the land, but to bind an assignee taking with notice. The 
 sale back would have to take place during or at the end of 
 a life in being, and thus there would not be a perpetuity. 
 Similarly a mere equitable charge was involved in ISTye v. 
 Hoyle, 120 N. Y. 195, where the covenant to bear a share 
 of the cost of repairing a dam was enforced in the form of a 
 bill to have the amount due the plaintiff refunded. The 
 case might well have been handled as Lord Justice Cotton 
 handled Morland v. Cooke in Austerberry v. Oldham (su- 
 pra). 
 
 Of course this applies, too, with full strength to party- 
 
EQUITY AND EQUITABLE EASEl^nENTS. 247 
 
 •wall burdens and perhaps to covenants for fencing, as has 
 been suggested above. Martin v. Martin, 44 Kan. 295, also 
 must have been so regarded by the courts. A son on taking 
 land from his father agreed that his father should receive 
 support. The court of equity said it V7as a "covenant run- 
 ning with the land," a "condition subsequent," &c., but 
 clearly all that was meant was that it was a charge for sup- 
 port upon the land. A similar conclusion was reached in 
 Goudy V. Goudy, Wright (Ohio) 410; but apparently con- 
 trary decisions are Harkins v. Doran, 15 Atl. Eep. 928 
 (Pa.), and Divan v. Loomis, 68 Wis. 180. 
 
 In Bald Eagle Valley Co. v. Nittany Valley Co., 171 Pa. 
 284, a different principle was involved. There a land com- 
 pany had covenanted to give the plaintiff railway all the 
 land company's traffic, and the land company having as- 
 signed, an agreement was made by the assignee with the de- 
 fendant railway company to build another road, but an 
 injunction restrained this railway from doing so. As the 
 covenant could hardly be either a charge upon the land or a 
 restriction, the court had to discuss the sole question whether 
 the covenant would run, and the equity question was merely 
 the right to prevent a stranger from interfering with it, an 
 entirely different matter. 
 
 But on the whole, it may be said that/the English notion 
 of restrictive covenants as equitable easements has been very 
 generally accepted in America as a theory independent of the 
 legal notion of the covenant running with the land ; and it is 
 often enforced in jurisdictions which allow the legal run- 
 ning of covenants at the same time. McMahon v. Williams, 
 79 Ala. 288; Mithoff v. Hughes, 5 O. C. C. 120; Clark v. 
 Martin, 49 Pa. 289 ; Muzzarelli v. Hulshizer, 163 Pa. 643 ; 
 Landell v. Hamilton, 171 Pa. 327 ; Hills v. Miller, 3 Paige 
 254; Winfield v. Henning, 21 K J. Eq. 188; Kirkpatrick 
 V. Peshine, 24 IST. J. Eq. 206 ; Lewis v. GoUner, 129 K Y. 
 227 ; Bradley v. Walker, 14 K Y. Supp. 315 ; Post v. Weil, 
 
248 ENFOECEMENT OE COVEKAHTS IN" 
 
 115 ]Sr. Y. 361; Eaynor v. Lyon, 46 Hun 227; Watertown 
 V. Cowen, 4 Paige 510; Dexter v. Beard, 7 X. Y. Supp. 11; 
 Haynes v. Ry., 38 Hun 17 ; Trustees of Columbia College 
 V. Lynch, 47 How. Pr. 273 ; Coudert v. Sayre, 19 Atl. Rep. 
 190 (N. J.) ; Coughlin v. Barker, 46 Mo. App. 54; Degray 
 v. Monmouth Beach Club House Co., 50 N. J. Eq. 329; 
 Bricker v. Grover, 10 Phila. 91 ; Clement v. Putnam, 68 Vt. 
 285; Parker v. Nightingale, 6 Allen 341. But in Tardy 
 V. Creasy, 81 Ya. 553, the court refused to enforce a re- 
 strictive covenant, assig-ning among other reasons that no 
 charge could be enforced in equity vphich could not be made 
 the subject of a grant at law. The force of this conclusion 
 does not seem to have struck any other court. 
 
 An extreme case of restrictive covenants is Hodge v. Sloan, 
 107 !N". Y. 244, where the covenant not to sell sand was en- 
 forced by an injunction. But a similar covenant was disre- 
 garded in Brewer v. Marshall, 18 IST. J. Eq. 337, and 19 IST. 
 J. Eq. 537, and in Kettle River Ry. v. Eastern Ry., 41 Minn. 
 461 ; so that it may well be added that a mere restrictive 
 covenant is not enough in itself to run. Like every other 
 covenant it must touch or concern the land. In Brewer v. 
 Marshall the court say that a covenant to run must be for 
 something on the land or concerning the land ; and in Kettle 
 River Ry. v. Eastern Ry. it is said that while equity would 
 sometimes enforce what the law would not, equity would 
 enforce only covenants that related to the land. 
 
 In regard to naming the successors of parties to an agree- 
 ment constituting an equitable easement, it may be said that 
 whatever idea may be accepted at law as to the full binding 
 effect of the instrument which creates the covenant, and the 
 necessity to name the parties who are to be affected by it, 
 in equity it is universally recognized as enough to indicate 
 a clear intention to charge the property whether orally or by 
 instrument; and the court will determine who are to take 
 advantage of it according to the implied intent of the par- 
 
EQUITY AND EQUITABLE EASEMENTS. 249 
 
 "ties. In Tulk v. Moxhay Lord Cottenham said he would 
 enforce the agreement whether parole or under seal, and it 
 was so clearly expressed by all his successors. Vice-Chan- 
 cellor Hall, in Eenals v. Cowlishaw, 9 Ch. D. 125, said 
 "this right exists not only where the several parties execute 
 a mutual deed of covenant, but wherever a mutual contract 
 can be clearly established." "And such covenant need not 
 be express, but may be collected from the transaction of sale 
 and purchase." In Peck v. Conway, 119 Mass. 546, the 
 agreement was only a plan showed to the purchasers and 
 marking off building restrictions; and for other instances 
 see Atlantic Dock Co. v. Leavitt, 50 Barb. 135 ; Parker v. 
 JSTightingale, 6 Allen 341 ; Bimson v. Bultman, 3 App. Div. 
 (K Y.) 198; Hall v. Geyer, 14 O. C. C. 229. 
 
 ITor need the agreement be a part of the transaction of 
 conveyance. A development of the theory consequent upon 
 its resting upon equity principles only is that the agreement 
 ias been often merely collateral. Carter v. Williams, 9 Eq. 
 678 ; Hills v. Miller, 3 Paige 254 ; Watertown v. Cowen, 4 
 Paige 510; Lydick v. B. & O. Ey., 17 W. Va. 427. But^t 
 must always be clear that the obligation was intended to be 
 for the benefit of subsequent purchasers on the one hand, 
 or to bind assigns on the other handj Badger v. Boardman, 
 16 Gray 559 ; Jewell v. Lee, 14 Allen 145 ; Skinner v. Shep- 
 ard, 130 Mass. 180; and for this all the circumstances will 
 have to be considered. Shreiber v. Creed, 10 Sim. 9 ; Keats 
 V. Lyon, L. K. 4 Ch. 218. So several cases on party-wall 
 agreements limit the obligation to the original parties, as it 
 seemed so intended. Scott v. McMillan, 76 JST. Y. 141. Wil- 
 son V. Hart, 1 Ch. 463, seems, therefore, a curious decision. 
 A vendee covenanted not to erect a beer shop, and the court 
 ield that it was not intended to bind the land, but was merely 
 personal ; yet it was held that a lessee with notice was bound 
 to observe the agreement. 
 
 So if a collateral agreement can run if intended to do so, 
 
250 ENFOECEMEWT OF COVENANTS IN 
 
 since the equitable notion involves none of the technicalities 
 of the old law, it would seem unnecessary that any land 
 should pass between the contracting parties; for any owner 
 of land can contract so as to charge it in equity with the 
 obligation usually embraced in the covenants. The English 
 courts have given us no discussion of this so far; but it 
 seems to have been endorsed in America. Thus it very often 
 happens that the vendor of land exacts building restrictions 
 of a vendee of his lots without inserting any similar agree- 
 ment for himself as to the remainder of the land. The ven- 
 dees would not, therefore, be within the technical running 
 of the covenants as to each other ; but it is generally very clear 
 that the vendor intended every vendee to have the benefit of 
 the restriction, for it is rarely contemplated that the vendor, 
 usually a land company, shall retain any of the lots what- 
 ever. So if the vendees respectively cannot enforce the re- 
 striction, it might in time be unenforceable entirely. That 
 this would be the result was decided in Dana v. Wentworth, 
 111 Mass. 291. There "the owner of a parcel of land bound- 
 ing on a street conveyed it by a deed with a condition that 
 the grantee or his heirs or assigns, should not build on the 
 land within eight feet of the street. The grantee conveyed 
 the land in several lots. It was held that the grantor could 
 not maintain a bill in equity, for the benefit of the owners 
 of some of these lots to restrain the owner of another from 
 violating the condition, in the absence of evidence that the 
 condition was imposed as part of a general plan for the 
 benefit of the land granted, and of other land on the street.-' 
 This contingency was in the mind of the court in Tallmadge 
 V. East Kiver Bank, 26 K Y. 105. Sunderland, J., said: 
 "It is probable that the equity arising from the circumstances; 
 and assurances under which the lots were sold . . . was 
 mutual . . . and hence, that it would be easy to show 
 
 1 The abstract of this case is taken from the second volume of 
 Mr. John C. Gray's Cases on Property, p. 508, note. 
 
EQUITY AND EQUITABLE EASEMENTS. 251 
 
 that the equity was mutual as between his grantees, without 
 regard to priority of conveyances, so that the equity would 
 or might exist in favor of a subsequent grantee against a 
 prior grantee, as well as in favor of a prior grantee against a 
 subsequent grantee; but it is unnecessary in this case to ex- 
 amine or decide that question." See also Parker v. Night- 
 ingale, 6 Allen 341; Jeffries v. Jeffries, 117 Mass. 184; 
 Tobey v. Moore, 130 Mass. 448 ; Barron v. Eichard, 8 Paige 
 351. 
 
 The difficulty in these land company cases was rather 
 violently avoided in Bimson v. Bultman, 3 App. Div. (IST. 
 Y.) 198, by deciding that the oral imposition of a restric- 
 tion upon any one purchaser implied a similar restriction 
 upon the remaining land, so the case of one purchaser being- 
 restricted without all others being so was not likely to arise. 
 Whether such an implication could be made, however, when 
 the restriction against the purchaser was in writing, may 
 well be doubted, for though not contradicting the writing, it 
 would be violently adding to it. But in Jewell v. Lee, 14 
 Allen 145, the Massachusetts court seemed to think that no 
 restrictive covenant could be enforced unless the benefits 
 were reciprocal. But the strongest decision that the benefits 
 need not be confined in equity to those in succession from the 
 covenantee after the creation of the agreement, is Wingfield 
 V. Henning, 21 N. J. Eq. 188. The facts were the same as 
 in Dana v. Wentworth (supra) ; but one of the subgrantees 
 sought to enforce the restriction against another. The court 
 very properly allowed the plaintiff his injunction, saying: 
 "An action at law could not be maintained by the complain- 
 ant against the defendant on such a covenant. But in equity 
 their position is different. Both the parties are bound to 
 the grantors in the Coles deed to keep the front free from 
 buildings: each is subject to the easement over his lot in 
 favor of those subsequently deriving title from Coles, and 
 each is equitably and justly entitled to the advantage which 
 
 18 
 
252 EITFORCEMENT OF COVENANTS IN 
 
 the observance of this stipulation by his neighbor may be 
 to him. ... It seems equitable that the court should, at 
 his instance, compel the observance of this covenant." Coles 
 was the original grantor ; and all had notice. 
 
 These cases would seem to furnish ground enough to say 
 thatf'no transfer need exist between the original parties to the 
 agreement if it is clear that they intended to charge the lands 
 for their successors ; and if that proposition is established, 
 since one can charge in equity after acquired lands as well 
 as presently owned lands, it would seem unnecessary that the 
 covenantor should own any land at the time of his cove- 
 nant) He could charge any future possessions he might have, 
 and they would be equitably bound when they should come 
 into his hands. The covenant has thus been assimilated to 
 an equitable mortgage on future acquired property. This 
 was done in Lewis v. GoUner, 129 IST. Y. 227. G had a 
 contract for a lot, and was to put up a flat upon it, when the 
 plaintiff bought his contract from him, G agreeing that he 
 would not erect any flats in the plaintiff's immediate neigh- 
 borhood. This contract seems to have been by parole. Later 
 G bought another plot of ground near by and began the erec- 
 tion of a flat, but sold it to his wife with notice, and continued 
 to operate for her. The plaintiff was allowed to enjoin her 
 from building a flat. The court held the contract merely 
 personal, but one that attached to the land as an equitable 
 right as soon as the land was bought, so that it ceased to be 
 merely personal because it was intended to affect the use 
 and occupation of after-acquired land in that neighborhood; 
 and though the contract might remain personal, the contract 
 equity followed the land into the hands of a purchaser with 
 full knowledge of the facts. ^ 
 
 1 It was similarly held in Nat. Bk. of Dover v. Segur, 39 N. J. L. 
 173, that the benefit of a covenant ran at law when executed before 
 the land passed. In N. J. burdens of covenants do not run at law. 
 See Supra, Ch. VIl. '"' 
 
 In the consideration of the nature of an equitable restrictive 
 
EQUITY AND EQUITABLE EASEMENTS. 253 
 
 Of course it is not necessary that the equitable right orig- 
 inally created should be referred to as a renewed contract in 
 each reassignment. If the various parties taking have notice 
 of the circumstances the rights derived from the first con- 
 veyance can be enforced. King v. Dickeson, 40 Ch. D. 596 ; 
 Winfield v. Henning, 21 IST. J. Eq. 188. It would therefore 
 follow that it is immaterial whether notice come from the 
 grantor or from extraneous sources. 
 
 But how about the rights of a new assignee purchasing 
 with notice from an assignee who held without notice of the 
 burden or benefit ? This can best be answered after a fuller 
 consideration of the whole matter of notice. 
 
 In Keppell v. Bailey, 2 M. & K. 51Y, the first case which 
 fully repudiated the running of covenants at law, Lord 
 Brougham, L. C, said that notice to the assignee would be 
 immaterial; for to allow notice to continue the covenant 
 would be giving effect to a covenant for whose breach no 
 damages could be recovered. It is evident that Lord 
 Brougham had in mind the common covenant which was 
 either merely personal or ran with the land. It was complete 
 in itself, and could be regarded as nothing else, being in- 
 capable of conversion into a different legal charge as an ease- 
 ment, or a grant; and as was seen above. Lord Brougham 
 was perfectly right.^ He had decided that the covenant 
 was no legal charge, and he did not see how there could be 
 
 covenant, some doubt may arise as to whether it can be an 
 encumbrance upon title. Undoubtedly if there is no notice of 
 it, it has no effect, so it could be no encumbrance. But in 
 cases where A contracts to buy land of B, but finds out the restric- 
 tion before he receives title, there it would seem that the restriction 
 would affect him if he received title, so he could probably resist a 
 bill for specific performance by setting up an encumbrance. Compare 
 Halle V. Newbold, 69 Md. 265. 
 
 1 In Tardy v. Creasy, 81 Va. 553, it was stated as the view of the 
 court, one judge dissenting, that these restrictive covenants could not 
 be enforced in equity, as nothing could be a charge in equity which 
 could not be perfected at law. 
 
254: EISrFOECEME]N"T OF COVENAA^'TS IZST 
 
 an equitable charge if a legal charge was impossible. But 
 his successors thought otherwise. Accordingly Lord Cotten- 
 ham, in Tulk v. Moxhay, 2 Phil. 774, disapproved the con- 
 clusion of Lord Brougham, though evidently failing to notice 
 clearly Lord Brougham's meaning, and so laid down the 
 doctrine that the covenant could be an equitable charge ; and 
 for this of course notice was a necessity. 
 
 Again the action in Keppel v. Bailey, like most of the oc- 
 casions on which the question arose in equity, was a petition 
 for an injunction ; and the law at the time in England, and 
 indeed the history of the law of injunctions was that no 
 permanent injunction could be granted without an action 
 having been brought first at law; and by hypothesis this 
 could not be done as the covenant would not be cause of action 
 at law. It is strange that this point did not cause comment 
 by Lord Cottenham in Tulk v. Moxhay, especially as Lord 
 Brougham had indicated that the claim in Keppell v. Bailey, 
 if allowed, would preserve that for which no damage could 
 be gained at law. 
 
 : After Tulk v. Moxhay, then, the whole matter is treated 
 ias an equitable charge governed by the rules of equity in 
 [ connection with charges and trusts ; and the rights and lia- 
 bilities are the rights and liabilities of volunteers or pur- 
 chasers and holders with or without notice. It is of coiirse 
 not intended here either to summarize or explain those rights 
 and obligations. For that reference must be had to author- 
 itative works upon equity and trusts. It suffices for the 
 present purpose merely to prove that suchlnotice is necessary 
 for an assignee to be held in equity to the burdens of the 
 assig-nor. j Whatman v. Gibson, 9 Sim. 196; Mann v. Ste- 
 vens, 15 Sim. 377; Tulk v. Moxhay, 2 Phil. 774; Cooke v. 
 Chilcott, 3 Ch. D. 694; Coles v. Sims, Kay 56, 5 DeG. M. & 
 G. 1, 23 L. J. Ch. 37, 258 ; Wilson v. Hart, 1 Ch. 463 ; Car- 
 ter V. Williams, 9 Eq. 678 ; Eichards v. Revett, 7 Ch. D. 
 224; Taite v. Gosling, 11 Ch. D. 421; Eenals v. Cowlishaw, 
 
EQUITY AND EQUITABLE EASEMENTS. 255 
 
 9 Ch. D. 125, 11 idem 866 ; King v. Dickeson, 40 Ch. D. 
 596; McKenzie v. Childers, 43 Ch. D. 265; Tyndall v. 
 Castle, 1893, Wkly. K 40; Everett v. Eemington, [1892], 3 
 Ch. 148 ; Bowes v. Law, 9 Eq. 636 ; Hall v. Box, 18 W. E. 
 820; Harrison v. Good, 11 Eq. 338; Mithoff v. Hughes, 5 
 Ohio C. C. 120 ; Ey. v. Bosworth, 41 Ohio St. 81 ; Carson 
 V. Percy, 57 Miss. 9Y ; Kirkpatrick v. Peshine, 24 IST. J. Eq. 
 206; Vandoren v. Eohinson, 16 JST. J. Eq. 256; Tallmadge 
 V. East Eiver Bank, 26 N. T. 105 ; Lewis v. GoUner, 129 ]S[. 
 Y. 227 ; Bradley v. Walker, 14 IST. Y. Supp. 315 ; Eitzman 
 V. Spencer, 5 Pa. Dist. Ct. 224 ; Eichardson v. Tobey, 121 
 Mass. 457; Hall v. IsTewbold, 69 Md. 265; Conghlin v. Bar- 
 ker, 46 Mo. App. 54; Heidorn v. Wright, 6 Ohio Dec. 315; 
 Bricker v. Grover, 10 Phila. 91. 
 
 In American courts which recognize the running of the 
 burden of the covenant at law, the equity question could arise 
 only where the agreement was by parole and of such a nature 
 as not to bind the assign anyway at law. Where it would 
 bind at law of course notice would not be necessary to make 
 it binding in equity. One or two cases have been so worded 
 as to imply a necessity for notice of the burden to have it 
 run at law. Eitzman v. Spencer, 5 Pa. Dist. Ct. 224; 
 Standish v. Lawrence, 111 Mass. Ill (semble). But it is 
 believed that the idea arose from confusion. It would cer- 
 tainly seem that such a notion is not to be supported. 
 
 But notice is not always necessarily express. Any cir- 
 cumstance which puts the defendant reasonably in default 
 for not having examined the state of the property, might 
 give him constructive notice of such an obligation or re- 
 striction as is included in the covenant; and he is held 
 equally bound to observe it. Wilson v. Hart, 1 Ch. 463. 
 
 So even if the covenant be held merely a personal one, as 
 the covenant to resell on the grantee's ceasing to occupy. 
 Vandoren v. Eobinson, 16 IST. J. Eq. 256. But in the ab- 
 sence of a recorded deed, the mere occupation of property 
 
256 EHTOECEMENT OF COVENANTS IK" 
 
 will not give notice of an unusual burden, as the burden of 
 fencing. Ey. v. Bosworth, 46 Ohio St. 81. So it has been 
 several times held that one has constructive notice of any 
 restriction contained in any deed through which he claims 
 title. Peck v. Conway, 119 Mass. 546 ; Poage v. Wabash 
 Ey., 24 Mo. App. 199 ; Brewer v. Marshall, 19 IST. J. Eq. 
 537; Heidorn v. Wright, 6 Ohio Dec. 315. In the absence 
 of registration such a conclusion seems somewhat strong, 
 however. It is very rare that the agreement or stipulation 
 is not inserted in the first deed made subject to it; so the 
 proposition amounts to saying that the burden of any re- 
 strictive covenant or stipulation will run, whether the as- 
 signee has notice or not, merely because it was in some remote 
 deed to the property. That destroys the whole notion of 
 equitable claims and is probably very foreign to the ideas 
 of those judges who established the first conception of the 
 right. 
 
 But all questions of implied notice are of little im- 
 portance compared with the question how far the registra- 
 tion statutes in America have eliminated entirely the matter 
 of notice in equitable easements. If the registration of a 
 deed causes notice to all subsequent purchasers of the cove- 
 nants it contains, as well as of the actual existence of the 
 deed, — as, indeed, is probably law under most of the regis- 
 tration statutes : Eichardson v. Tobey, 121 Mass. 457 ; ISTor- 
 fleet V. Cromwell, 64 IST. C. 1, — ^then the result is that an 
 equitable easement, by means of the record, is the same as a 
 covenant which runs with land at law. How far-reaching 
 this would be, the courts will have to determine, as they 
 have not done so hitherto. 
 
 To recur, then, to the obligation of the person who has 
 notice taking from one who received without notice. The 
 person who receives without notice is found to hold abso- 
 lutely free of obligation either upon the land or upon his 
 conscience, and there can be no gainsaying that he is pre- 
 
EQUITY AND EQUITABLE EASBMEKTS. 25T 
 
 sumed to have paid the value of the property. To hold, then, 
 that one who happens to have notice cannot receive the title 
 free from him, would be to limit that vendor's free use of the 
 property, as he could hardly get full value. It is therefore 
 believed that after the title is once held free from equities no 
 equities can again revive, unless, indeed, it be repurchased 
 by some prior fraudulent vendor. See Ames' Cases on 
 Trusts, 2 ed., p. 286, note. 
 
 But on the side of the beneficiary the same reasoning does 
 not apply. It has been stated by some judges that the per- 
 sons benefited must have notice of the benefits of the cove- 
 nant. Probably the first party must have notice, or there 
 will be no agreement to start; but when once begun, why 
 should his assignee have to receive notice at the time of as- 
 signment in order to have the benefits of the charge ? It has 
 been frequently said that purchasers are presumed to have 
 regarded the covenant as part of the inducement to invest. 
 Tallmadge v. East Eiver Bank, 26 N. Y. 105 ; DeGray v. 
 Monmouth Beach Club House Co., 50 N. J. Eq. 329. But 
 if the charge is entirely a matter of intention by the cove- 
 nantor, and the benefit runs or not as he had intended, as 
 we have seen, why should an assignee's knowledge or ig- 
 norance be material ? The grantor who assigns to him can- 
 not retain the benefit, for the covenantor did not intend him 
 to have the benefit of the covenant except during his holding 
 of the benefited land. Moreover, it would not seem impor- 
 tant if one assign remained entirely ignorant of his benefits 
 during his whole period of holding, and his assign first dis- 
 covered the prior right. There would seem no reason whj 
 he should not enforce it. 
 
 But a different form of the question arises in considering 
 whether the covenant can be extinguished before an assign 
 has notice or before it reaches him. The point arises in the 
 power of a land company to release business restrictions. 
 after having sold parts of the land for the benefit of whick 
 
258 EMTOECEMEB'T OF COVENANTS IN 
 
 the restriction was imposed. Of course this would not affect 
 agreements which run with the land at law as in Eaynor v. 
 Lyon, 46 Hun 22Y. But in Keats v. Lyon, 4 Ch. 218, the 
 facts arose in England where the covenant at law would be 
 impossible. Tet the court treated it as a matter of inten- 
 tion, and so we have no decision on the point whether the 
 equity could be released as to those assignees who had no 
 notice. The principle, however, would seem to be that the 
 agreement is a contract by which the covenantor undertakes 
 to charge his land for the benefit of the other party or the 
 other party's assigns. The contract can be destroyed, of 
 course, whenever the parties to it shall desire ; and all futiire 
 rights can be cut off. Lydick v. Ey., 17 W. Va. 427. But 
 the covenantor has already charged the property for those 
 to whom the covenantee has already assigned ; and this being 
 complete in equity, would seem irrevocable, just as a trust 
 is irrevocable when completely declared whether the cestui 
 has notice of it or not.-^ That the equity claim cannot be 
 destroyed where there is notice to those who have already 
 purchased, see Coudert v. Sayre, 19 Atl. Eep. 190 (]Sr. J.). 
 This working similarity to the law of trusts on the benefit 
 as well as the burden side of covenants is therefore ap- 
 parent. 
 
 On this principle of trusts and equitable charges the 
 beneficiaries get their claim directly against the covenantor 
 by the nature of the original agreement, and do not at all 
 claim through the contractual relation between the original 
 parties, although that gave rise to the beneficiaries' rights. 
 It will be noted that no difiiculty presents itself in equity 
 upon the interpretation and analysis of the covenants them- 
 selves. It would seem to follow from the language of de- 
 cisions in the English courts that this was their view of the 
 notion of equitable easements. It is at first natural to con- 
 sider the rights as arising entirely from the contract itself, 
 
 1 See cases collected in Ames' Cases on Trusts, 2d ed., p. 233. 
 
EQUITY AND EQUITABLE EASEMENTS. 259 
 
 and tlius to hold the covenantee as trustee of the claim for 
 his subsequent assigns. That a cestui in fact has the right 
 in equity to enforce by injunction the covenant with his 
 trustee was decided in Eagle Valley Ey. v. ISTittany Valley 
 Ey., lYl Pa. 284. But an extension and multiplication of 
 trusts along that line is both unnecessary and likely to give 
 rise to difficulties as involved as the analysis of the rights of 
 parties to parole agreements at law. 
 
 Considering, then, that these peculiar rights in equity 
 exist, it must be asked again how thoroughly they may be 
 enforced by the courts. Where the charge is the obligation 
 to pay money, of course there is no reason why it should not 
 be enforced to the full extent; and it seems that this is the 
 law. Such are the cases of party-wall agreements, where the 
 charge is for an express sum; and some courts have gone so 
 far as to allow the action for that in contract as a liquidated 
 claim at law. See Maine v. Cumston, 98 Mass. 317, and 
 compare Standish v. Lawrence, 111 Mass. Ill ; Joy v. Bos- 
 ton Penny Savings Bank, 115 Mass. 60. But when the sub- 
 ject is a real easement it would ordinarily be questioned 
 whether the defendant had really entrenched upon the plain- 
 tiff's easement, and whether equity would grant relief. In 
 Hills V. Miller, 3 Paige 254, however, the court held that as 
 there was an easement, the court would enforce the right 
 though the plaintiff was unreasonable. Whether such strict 
 enforcement would always be granted may well be doubted. 
 In Clark v. Martin, 49 Pa. 289, abatement of a building 
 erected beyond the agreed line was ordered, though admit- 
 tedly harsh ; but in that case the building was entirely erected 
 in disregard of the motion to enjoin already made. 
 
 But the chief interest arises in connection with restrictive 
 covenants purely, after circumstances have arisen so as to 
 make their enforcement exceedingly harsh. Such is the situ- 
 ation which led the Pennsylvania court to hold that the 
 running of the covenant depends entirely upon the intention 
 
260 ENFORCEMENT OF COVENANTS IN 
 
 of the parties even as to the time that it is to run; and that 
 equity will not presume that it was the intention that the 
 property should be burdened long after the usefulness had 
 ended. Landell v. Hamilton, 175 Pa. 327. That such an 
 intention is possible, is to be admitted, and that it is emi- 
 nently desirable that it be discovered, cannot be doubted. 
 Indeed, it would not be unwise always to insert some clear 
 expression of intention in every restrictive agreement. But 
 it is exceedingly probable that such an intention would ordi- 
 narily be a judge-made contract for the parties. The parties 
 ordinarily have no intention on the subject; and from the 
 circumstances which give rise to the covenant any intention 
 that exists would probably be that it should run in per- 
 petuum. 
 
 But even at best, the intention only partially relieves mat- 
 ters; for often before the usefulness to the covenantee has 
 expired, the burden to the covenantor is out of proportion. 
 Yet the court in Landell v. Hamilton was compelled to say: 
 "Where the restriction, notwithstanding the change of use of 
 lands and buildings, still is of substantial value to the domi- 
 nant lot, equity will restrain its violation, where relief is 
 promptly sought." 
 
 On the whole, therefore, the safer method would seem to 
 be to eliminate intention entirely and treat the whole ques- 
 tion as a matter of equity jurisdiction. Where the breach 
 would injure the plaintiff materially, and the agreement does 
 not cause unreasonable restrictions under an enhanced bur- 
 den to the defendant, equity would be but fulfilling its duty 
 to enforce the agreement. But where conditions have so 
 changed since the creation of the covenant that the damage 
 to the servient tenement would be out of all proportion to 
 what it had formerly been, or to the benefit to the dominant 
 tenement, it would seem a distortion of the office of equity 
 to aid in imposing such injustice. The learned judge in 
 Landell v. Hamilton, 175 Pa. 327, continuing on this ground. 
 
EQUITY A]SD EQUITABLE EASEMENTS. 261 
 
 said: "There may, and doubtless will occur cases where 
 the restriction has ceased to be of any advantage. In such 
 cases equity will not interpose and retard improvements, 
 simply to sustain the literal observance of a condition or 
 covenant." In Sayers v. CoUyer, 24 Ch. D. 180, a restrict- 
 ive covenant was not enforced because it would be inequitable 
 io do so under the changed condition of circumstances. And 
 in Knight v. Simmonds, [1896], 2 Ch. 294, the court held 
 that a covenant would not be enforced when its purpose no 
 longer survives. See also Duke of Bedford v. Trustees of 
 British Museum, 2 M. & K. 552; Coughlin v. Barker, 46 
 Mo. App. 54; Coudert v. Sayre, 19 AtL Eep. 190 (IST. J.) ; 
 Trustees of Columbia College v. Thatcher, 87 IST. Y. 311. 
 
 Again the plaintiff must use due diligence in bringing his 
 cause before the court. If his tardiness amounts to laches, 
 he will be put out of court as in other claims in equity. 
 Sayers v. Collyer, 28 Ch. D. 103 ; Landell v. Hamilton (su- 
 pra) ; VanDoren v. Kobinson, 16 IST. J. Eq. 256. For these 
 questions it is enough to suggest the rights discovered by the 
 courts in the cases. Tor their elaboration it is of course nec- 
 essary to refer at once to works on equity jurisdiction from 
 whose realm the essayist would here studiously refrain. 
 
 And in conclusion let it be said that wherever the theory 
 of equitable easements has become established, and when- 
 ever in a new jurisdiction an advocate shall assume the re- 
 sponsibility to recommend it to the courts, it must be 
 recognized as necessary that it be considered and argued only 
 upon well-known principles of equity entirely apart from 
 the Common Law, or the law will become so confused as to 
 be more inextricable than any other question in the local 
 law. 
 
CHAPTEE XII. 
 
 OP OMITTED MATTERS^ AND CONCLtTDIKG SUGGESTIONS. 
 
 It is to be regretted that other interesting points about 
 covenants cannot be elaborated in proportion to the pleasure 
 to be derived from following them out. But as many of 
 these points have never been presented to the courts, it would 
 seem clear that their occurrence even to the practitioner 
 would be too infrequent to warrant their treatment in a 
 book; — especially as it is thought that the principles al- 
 ready discussed must be the basis for settling any new mat- 
 ter. One of the most interesting of these points is whether 
 a covenant can be executed to run with land hitherto to be 
 acquired. This has been partially considered by the courts 
 and the running endorsed in at least two cases, in the matter 
 of the running of a benefit in ISTat. Bk. of Dover v. Segur, 
 39 N. J. L. 173 ; and in the matter of the running of a 
 burden in Lewis v. Gollner, 129 IST. Y. 227. The latter case 
 was in equity, however, where there should be no doubt of 
 the running of either the benefit or the burden of certain 
 covenants, provided the court has reason to enforce them. 
 See Chapter XI. 
 
 On principle it will be apparent that the capacity to run 
 would depend upon the ability to grant the property in 
 future, with which the covenant is to run, as it has been con- 
 cluded in Chapter IX that for any covenant to run there 
 must be the passing of property at the time of the creation. 
 Of course the original parties could contract to sell any land, 
 and if the contract was concluded, either by the original con- 
 tracting parties, or by assignees of the contract, that partic- 
 ular contract when carried out would carry the covenant. 
 
 262 
 
CONCLUDING SUGGESTIONS. 263 
 
 But this is not exactly what is meant. What is meant is 
 "whether the covenant can be made now to attach to land in 
 futuro and then run. As by the Common Law land could 
 not be granted in futuro (see any work on real property), 
 covenants could probably not be executed to run in future 
 with fees. But as easements could be granted in futuro, 
 there seems no reason why party-wall covenants could not be 
 executed when the easement in futuro is granted, to run 
 when the easement passes. And so of any covenant which 
 runs with easements. But the reader must work it out for 
 himself when occasion arises. 
 
 Another matter which has been almost entirely omitted is 
 the operation of powers in connection with the running of 
 covenants with fees. Powers were discussed in connection 
 with covenants in leases, however, and very probably any 
 principle involved in their operation upon covenants run- 
 ning with fees is there covered. 
 
 But the two large subjects frequently treated fully in law 
 books on any subject, and omitted here, are Election of Rem- 
 edies and Damages; and their systematic and separate 
 statement might save the investigator some time. But to do 
 so in the case of the former would be to rehearse the book; 
 and to do so in the case of the latter has seemed unadvisable. 
 With regard to damages, it will be seen that the question when 
 applied to covenants is merely the question of damages upon 
 the breach of a simple contract. It involves no more nor less 
 the peculiarities of damages in breach of contracts, and had 
 best be investigated in some work on that subject. There 
 are probably more cases of covenants than of other contracts 
 where the amount of damages is immaterial, the question 
 being the existence of a right, and in actions to enforce this 
 right, nominal damages are all that is to be expected; but 
 these cases will be apparent on their presentation in prac- 
 tice. 
 
 With regard to the election of remedies, it will be noted 
 
264 OF OMITTED MATTERS, 
 
 that it has all along heen urged that in law there is only one 
 remedy for the right created as a covenant, and that is to 
 sue upon it as an ordinary covenant. When to regard the 
 right as an easement or some other form of law affording 
 a different remedy can only be intelligently stated by re- 
 viewing the preceding chapters, and then a statement might 
 be misleading. In equity there seems more room for choice 
 in cases where the covenant may be regarded either as a 
 covenant or as an equitable easement; but as may be drawn 
 from the discussion in Chapter X, Section 6, this alternative 
 is possible only where the courts probably have misunder- 
 stood the origin of both rights and so have allowed them 
 both. 
 
 The real occasion for the election of remedies is when the 
 matter of the covenant is such that it may be regarded either 
 as a running covenant or an equitable money charge. But 
 even here there should be little embarrassment after the 
 status of the law with regard to each is examined. It would 
 arise chiefly in cases of rent granted, or party-wall agree- 
 ments; and would amount practically to deciding whether 
 to sue at law or in equity; and that would involve no novel 
 questions. The law on the whole question has been discussed 
 more or less fully in the preceding chapters ; and the practice 
 in the sense of procedure in addition to being a local ques- 
 tion, has not been embraced in the subject matter of this 
 work. 
 
 Indeed, it has been sought to explain the principles of 
 covenants which must underlie their use in every condition ; 
 and it is thought that if these principles have been carefully 
 examined, there will be little difficulty in determining how 
 they must be applied and when to apply them. If it has been 
 proven, as it was attempted, that covenants are peculiar crea- 
 tions of the Common Law, and run with land as a result 
 of their nature long since developed, practice is an unim- 
 portant matter from its very simplicity. 
 
AND CONCJiUDING SUGGESTIONS. 265 
 
 But practice in its true sense of the proper application of 
 legal principles has constituted a very important part of this 
 "work. The law of running covenants, like the law of deeds 
 Gr the law of declared trusts, comes down to the question 
 whether there ever was, in the case at hand, such a covenant. 
 That is to say, whether the covenant was properly created.- 
 That is a matter of practice, a matter of conveyancing; and 
 that the author has attempted to treat thoroughly. An 
 epitome of instructions to that end, therefore, may well be 
 the best conclusion of the work. 
 
 In fine, to draw a covenant that would be thoroiighly good, 
 it is best of course to avoid those points that have caused the 
 law the most trouble. If possible, let there be something of 
 corporeal hereditament to pass; and if not that, have no 
 doubt that there is an expressly granted incorporeal heredita- 
 ment. Mention the heirs, executors, administrators, and 
 assigns of both parties, and express that it shall run with 
 the land. Let the covenant concern the use or enjoyment 
 of both pieces, and if it be a restrictive covenant state that 
 it shall last until its usefulness is ended. Then let the deed 
 be made an indenture and let the grantor and the grantee 
 both sign it with their seals. 
 
APPENDIX A. 
 
 FORM I. 
 
 I'OEM FOE AN AGEEEMENT AS TO THE BUILDIIT& AKD EEPAIEIITG 
 
 OE A PAETY-WALL IN A DEED GEANTING ONE OF THE 
 
 ADJOINING PIECES OF PEOPEETT UPON 
 
 WHICH THE WALL IS TO BEST. 
 
 State of , 
 
 County of 
 
 This indenture, executed this day of , 
 
 19 . . ., by and between A. B., of the City of , 
 
 County of , and State of , party of 
 
 the first part, and C. D., of the City of , County 
 
 of , and State of , party of the second 
 
 part, Witnesseth: That whereas the party of the first part 
 is seised and possessed in his own right of a certain lot or 
 
 parcel of land, situated in the City of , County 
 
 of , and State of , and designated 
 
 on the map of said city as Lots in Block : 
 
 And whereas the party of the first part has agreed to sell 
 to the party of the second part, and the party of the second 
 part has agreed to buy from the party of the first part out of 
 the land above designated the certain portion or lot herein- 
 after described: 
 
 Now, therefore, in consideration of dollars 
 
 ($ ), lawful money of the United States, in hand paid 
 
 to the party of the first part by the party of the second part, 
 the party of the first part does grant, bargain, sell, enfeoff, 
 and confirm unto the party of the second part and his heirs 
 
 all that lot or parcel of land situated in the City of , 
 
 County of , and State of , designated 
 
 on the plan of said city as Lot in Block , and 
 
 more particularly described as follows: 
 
 267 
 
268 APPEiroix. 
 
 (Here insert metes and bounds.) Being a part of the land 
 of the party of the first part designated above, together with 
 all and singular the hereditaments and appurtenances, rights, 
 or covenants, thereunto belonging or in anyways appertain- 
 ing: 
 
 To have and to hold unto the said C. D. and his heirs, to 
 the use of the said C. D. and his heirs, in fee-simple forever. 
 
 And the party of the first part, for himself, his heirs, 
 executors and administrators, covenants with the party of 
 the second part, his heirs, and assigns (for title). 
 
 And the party of the first part, for himself, his heirs, 
 executors, administrators, and assigns, covenants with the 
 party of the second part, his heirs and assigns, that if at any 
 time the party of the second part, his heirs, or assigns, should 
 wish to build upon said above conveyed parcel of ground so 
 that one of the walls of said building shall rest, half upon 
 said granted land, and half upon the ground now remaining 
 to the party of the first part, if at that time unbuilt upon, 
 he or they shall be at liberty to do so; and may erect said 
 
 wall, not to exceed inches in thickness or 
 
 feet in height, and said wall shall be a party-wall : and if at 
 any time the party of the first part, his heirs, or assigns, shall 
 use said party-wall as a wall sustaining a building on his or 
 their land, that he or they will, at the time of first so using 
 the wall, pay unto the then owner of the adjoining building 
 supported by the wall one-half the cost of the party-wall to 
 the extent that it is thus used. 
 
 And the party of the second part, for himself, his heirs, 
 executors, administrators, and assigns, covenants with the 
 party of the first part, his heirs and assigns, that if at any 
 time the party of the first part, his heirs, or assigns should 
 desire to erect such a party-wall he or they shall be at liberty 
 to do so; and if at any time the party of the second part, 
 his heirs or assigns, should desire to use the party-wall so 
 built, he or they will, at the time of first so using the wall, 
 
APPENDIX. 269 
 
 pay to the then owner of the adjoining building supported 
 by the wall, half the cost of the wall to the extent so used. 
 
 And each party, for himself, his heirs and assigns, cove- 
 nants with the other party, his heirs, executors, administra- 
 tors and assigns, that if ever such a wall shall be erected, the 
 owner of the above indicated adjoining lot may use it on the 
 aforesaid terms at any time, and that the wall may be re- 
 paired whenever necessary at the joint expense of the adjoin- 
 ing owners using it ; and that it may be raised to any extent 
 commensurate with the safety of the building on the said 
 adjoining lot, for the use of any of the parties using, on the 
 same conditions on which it was originally erected. 
 
 Witness our hands and seals this the day of 
 
 ,19.--. 
 
 A. B. (Seal.) 
 
 Witness: C. D. (Seal.) 
 
 Dower should be released according to the local statutes 
 regulating its release in the ordinary conveyance. 
 
 APPENDIX A. 
 
 FOEM II. 
 
 FOEM FOE AIT AGEEEMENT AS TO THE BUILDING AND EEPAIEING 
 
 OF A PAETY-WALL^ EXECUTED AS A SPECIAL INSTEU- 
 
 MENT BY TWO ADJOINING LOT OWNEES, WHEEE 
 
 ITS CEEATION IS NOT CONCUEEENT 
 
 WITH THE CONVEYANCE OF 
 
 EITHEE LOT. 
 
 State of , 
 
 County of 
 
 This indenture, executed this day of ^ 
 
 19 . . ., by and between A. B., of the City of , 
 
 County of , and State of , party of 
 
270 APPENDIX. 
 
 the first part, and C. T)., of the City of , County 
 
 of , and State of , P^-i'ty of the second 
 
 part, Witnesseth : 
 
 That whereas the party of the first part is seised and 
 possessed in his own right of a certain lot or parcel of land, 
 
 situated in the City of , County of , 
 
 and State of , and designated on the map of 
 
 said city as Lot in Block , fronting 
 
 feet on the side of Street in said city, 
 
 while the East ( ?) side line of said lot runs back in a straight 
 line feet from said street : 
 
 And whereas the party of the second part is seised and 
 possessed, in his own right, of another certain lot or parcel 
 of land in said city, designated on the map of said city as 
 
 Lot in Block , fronting feet on the 
 
 said side of said Street, and adjoining 
 
 the aforedescribed lot of the party of the first part, that is 
 to say, the West (?) side line of said lot of the party of the 
 second part being coincident with the East (?) side line of 
 the said lot of the party of the first part, for a distance of 
 feet from the said street : 
 
 And whereas it is desired by both parties to this instrument 
 that at any time a wall may be built upon the dividing line 
 between the said lots, to be a party-wall, resting equally on 
 each lot, and to be the supporting wall on one side for a 
 building or buildings on each lot : 
 
 !N"ow, therefore, in consideration of the covenants of the 
 party of the second part hereinafter made and expressed, 
 and one dollar in hand paid to the party of the first part by 
 the party of the second part, the party of the first part hereby 
 grants unto the party of the second part, his heirs and assigns, 
 as a right appurtenant to tlie said lot of the party of the 
 second part, the right to go to and fro upon the said lot of 
 the party of the first part, and to carry servants and any 
 materials, in any way necessary for the building of said wall. 
 
APPENDIX. 2Y1 
 
 !And likewise the party of the second part in consideration 
 of the covenants of the party of the first part, hereinafter 
 expressed, and one dollar in hand paid to the party of the 
 second part by the party of the first part, does hereby grant 
 Tinto the party of the first part, his heirs, and assigns, as a 
 right appurtenant unto the said lot of the party of the first 
 part, a similar right or easement on or over the said lot of 
 the party of the second part. 
 
 And each party, for himself, his heirs, executors, admin- 
 istrators and assigns, covenants with the other party, his 
 heirs and assigns that either party, his heirs or assigns, first 
 desiring to build such a wall, may do so at his own expense, 
 and that the other party, his heirs, or assigns, who shall desire 
 to use said wall for a support to a building, may do so, pay- 
 ing to the then owner of the building already supported by 
 the wall one-half the cost of the wall to the extent so used. 
 
 And each party, for himself, his heirs, executors, admin- 
 istrators and assigns, covenants with the other party, his 
 heirs and assigns, that if he or they shall so use the wall as 
 a later builder than the other party, he or they will at the 
 time of so using the wall, pay to the then owner of the build- 
 ing first supported by the wall, one-half the cost of the wall 
 to the extent so used: and that the said wall, if built, may 
 be repaired whenever necessary at the joint expense of the 
 adjoining owners using it ; and that it may be raised to any 
 extent commensurate with the safety of the building on the 
 lot other than that of which the ovmer desires to raise the 
 wall, on the same conditions on which it was originally 
 erected. 
 
 Witness our hands and seals this the day of 
 
 19... 
 
 A. B. (Seal.) 
 
 Witness: C. D. (Seal.) 
 
272 APPENDIX. 
 
 There may be doubt in any locality whether there may be 
 dower against such an easement as is here granted. It is a 
 somewhat different question from the question whether there 
 may be dower in such an easement ; and even about that there 
 may be some doubt. The wording of Blackstone and Little- 
 ton, on account of their use of general words, very probably 
 warrants dower. But Cooley, II Bl. Com. 132, n. 23, limits- 
 the language of Blackstone, though citing Buckeridge v. 
 Ingram, 2 Ves. Jr. 664. In that case the Master of the Rolls, 
 Sir Richard Pepper Arden, decided that the right to cut land 
 along a water way in working upon the water way and keep- 
 ing it up, was property in which there might be dower, ac- 
 cording to Co. Lit. 32 a. 
 
 Dower should therefore be released in making the above 
 party-wall agreement. 
 
 APPENDIX B. 
 
 GENERAL POEM POE ANT COVENANT IN A DEED INTENDED TO 
 
 ETJN WITH LAND IN WHICH AN ACTIVE COVENANT 
 
 IS GIVEN POE THE GEANTOE^ AND A 
 
 NEGATIVE COVENANT POE 
 
 THE GEANTEE. 
 
 State of Alabama, 
 County of Jefferson. 
 
 This indenture, made the day of , 
 
 19 . . ., by and between A. B., of the County of Jefferson and 
 State of Alabama, party of the first part, and C. D., of the 
 County of Jefferson and State of Alabama, party of the 
 second part, Witnesseth : 
 
 That whereas the party of the first part is seised and 
 possessed of a certain lot or parcel of land in the county 
 aforesaid, containing three acres, more or less, lying in the 
 S. E. quarter of the S. E. quarter of Section 29, Township 
 
APPENDIX. 273 
 
 17 South, Range 2 West, fronting 400 feet on the south side 
 
 of the Macadamized road, known as the Road, 
 
 and running back of even width 300 feet perpendicularly 
 thereto : 
 
 And whereas the said party of the first part has agreed to 
 sell to the party of the second part a certain portion of the 
 said parcel of ground, that is to say, the east 100 feet front- 
 ing on said road, running back of equal width through the 
 property, and the party of the second part has agreed to 
 purchase the same from the party of the first part : 
 
 Now, therefore, the party of the first part for and in con- 
 sideration of two thousand dollars ($2,000), lawful money 
 of the United States in hand paid him by said party of the 
 second part, receipt of which is hereby acknowledged, has 
 granted, bargained, sold and conveyed, and by these presents 
 does grant, bargain, sell and convey to the said party of the 
 second part and his heirs the said property above described, 
 more particularly described as follows: (Here insert metes 
 and bounds.) 
 
 Together with all and singular the hereditaments and 
 appurtenances thereto belonging or in anyways appertaining. 
 
 To have and to hold unto the said party of the second part 
 and his heirs to the sole and only proper use of the party of 
 the second part and his heirs in fee-simple forever. 
 
 And the party of the first part, for himself, his heirs, 
 executors and administrators, does covenant with the party 
 of the second part, his heirs, executors, administrators and 
 assigns (for title). 
 
 And the party of the first part, for himself, his heirs,, 
 executors and administrators, does covenant with the party 
 of the second part, his heirs, executors, administrators and 
 assigns that whereas there now exists upon the remaining 
 portion of the said land owned by the party of the first part, 
 a valuable overfiowing, or Artesian well, from which pipes 
 run carrying water to the parcel of land hereby conveyed, 
 
 n 
 
274 APPENDIX. 
 
 he and the said party of the first part, his heirs and assigns, 
 will keep the said well clean, and the pipes over his said 
 remaining land open, so that the party of the second part, his 
 heirs, or assigns may receive water, as long as there shall be 
 no public water main along said road fronting said properties. 
 
 And the party of the second part, for himself, his heirs, 
 and assigns, does covenant with the party of the first part, 
 his heirs, executors, administrators, and assigns, that so long 
 as the land now retained by the party of the first part shall 
 be used for residence purposes only, the said party of the 
 second part, his heirs and assigns, will use the parcel of land 
 herein granted for residence purposes only. 
 
 Witness their hands and seals, this the day of 
 
 , 19... 
 
 A. B. (Seal.) 
 
 Witness: C. D. (Seal.) 
 
 Dower should be released according to the local statutes 
 regulating its release in the ordinary conveyance. 
 
INDEX. 
 
 Page 
 
 ACTION of covenant erroneously held local 85 
 
 Of distraint for rent not personal 87 
 
 On implied contract not local 87 
 
 ALABAMA — Running of burdens at Common Law in 164 
 
 Statute law as to leases » 73 
 
 ARKANSAS — Statute law as to leases 73 
 
 ASSETS — Receipt of, necessary to bind successors to covenant. . 59 
 
 Receipt of, necessary to bind successors to warranty 36 
 
 ASSIGNMENT — Contract of, as to running of covenants 115 
 
 Effect of, upon parole agreements 191 
 
 Of lease, consent of lessor Ill 
 
 Partial. See Partial Assignments. 
 
 Rights and liabilities of parties to covenants in general 
 
 after assignment _ 183 
 
 Rights and liabilities of parties to leases after assignment. 91-96 
 
 What is, of lease or reversion 96 
 
 Whether liability can be avoided by 182 
 
 ASSIGNS— Affected by benefit of covenant in early law 62 
 
 Affected by burden of covenant in early law 62 
 
 Affected by warranty 42 
 
 Involuntary 86 
 
 Liability for breaches during holding enforced after assign- 
 ment 97 
 
 Naming of, necessary for binding to warranty 36 
 
 Naming of, as to necessity for, to bind to covenants in leases. 105 
 Naming of, law upon, in binding to covenants in leases in 
 
 America - 108 
 
 Naming of, in binding to covenants generally 204 
 
 Naming of, in binding to covenants in equity 248 
 
 Personally bound in warranty only to extent of assets re- 
 ceived, and explanation 180 
 
 Personally bound in covenant without limit, and explanation. 181 
 
 Rights and liabilities of, local or transitory 84 
 
 Rights and liabilities of, cease after assignment 95 
 
 Whether bound at common law by parole agreement -^ 191 
 
 BENEFITS OF COVENANTS— Confined at Common Law to 
 
 those In privity of estate 178 
 
 375 
 
276 IJSTDEZ. 
 
 Page 
 BENEFITS OF COVENANTS— Continued. 
 
 Effect of notice upon 257 
 
 Heirs and assigns affected by _ 62 
 
 In equity, running explained 244 
 
 In parole leases 88 et seq. 
 
 Running of, in old law 62 
 
 Running of, with fees at Common Law 135 
 
 Running of, unusual reason for 137 
 
 Running of, unusual theories as to, at law 138 
 
 What continue after assignment of lease 92 
 
 What continue after assignment of reversion 91 
 
 BRACTON — His idea of necessity for assets to bind to warranty. 36 
 His idea that warranty bound land 39, 178 
 
 BUILDING LINE— Covenants as to 224 
 
 Covenants compelling to build up to 224 
 
 Covenants restricting to, not easements 225 
 
 BURDENS OF COVENANTS— In parole leases 89 
 
 Obligation personal in its effect » 181 
 
 Running of, at Common Law discussed 140 
 
 Running of, allowed in early law 62 
 
 Running of, denied after 32 H. VIII 66 
 
 Running of, in England not allowed now 147 
 
 Running of, in Ireland, query 147n 
 
 Running of, in the several states - 149 
 
 Running of, conclusion as to American law 167 
 
 Running of, English and American law compared 169 
 
 Running of, theories as to 167 
 
 Running of, probable historical explanation 178 
 
 Running of, confined to those in privity of estate 180 
 
 Running of, in equity 244 
 
 (And see Notice.) 
 
 Running of. Limitation of by contract 115 
 
 Sometimes called a lien 181 
 
 What continue after assignment of lease 93 
 
 What continue after assignment of reversion 91 
 
 CALIFORNIA — Running of burdens at Common Law in 163 
 
 Statute law as to leases 73 
 
 COLORADO — Running of burdens at Common Law in 166 
 
 Statute law as to leases 73 
 
 COMMON LAW— Theory of 11 
 
 CONDITIONS— Avoided if possible in construing wording 207 
 
 Distinguished from covenants 21 
 
 Partial assignment Impossible 104 
 
 CONNECTICUT— Statute law as to leases 73 
 
INDEX. 
 
 277 
 
 Page 
 CONSIDERATION— Effect of, upon running 137 
 
 CONSTRUCTION, of wording governed by intention in leases. . 116n 
 
 A question of indicated intention in covenants generally.... 205 
 
 CONTRACT— Implied. See Implied Contract. 
 
 Limiting liability 115 
 
 Of assignment. See Assignment. 
 
 CORPORATION— Idea of corporation entity discussed 63 
 
 COVENANT— ACTION OP, for rent 52 
 
 For right based upon custom or prescription 53 
 
 For warranty 46 
 
 For warranty extended beyond the parties 47 
 
 Whether local or transitory 84 
 
 Which the sounder view 85 
 
 COVENANTS IN EQUITY. See Equity, Equitable Easements. 
 
 COVENANTS FOR TITLE, distinguished from covenants which 
 
 run with land 19 
 
 Operation confined to successors in privity of estate 44 
 
 Outgrowth of warranty 19 
 
 COVENANTS WHICH RUN WITH LAND, 
 
 Active, cannot be enforced in equity 231 
 
 Active duties embraced in 51 
 
 Assumed origin - 32 
 
 Classified _ 30 
 
 Definition 17 
 
 Definition merely tentative 18 
 
 Definition explained and requisites 26 
 
 Distinguished from conditions 20 
 
 Distinguished from covenants for title 19 
 
 Distinguished from custom 22 
 
 Distinguished from easements 21 
 
 Distinguished from prescription 22 
 
 Distinguished from stipulations ^ 25 
 
 Distinguished from warranty 59 
 
 Directions for drawing 265 
 
 Effect of - 23 
 
 Existence of express precludes implied 85 
 
 Express, distinguished in leases 109 
 
 Extinguishment of 184 
 
 Eorms for 267 
 
 May be active or passive 27 
 
 Merely a contract 85 
 
 Nature of right 185 
 
 Negotiable characteristics of 183 
 
 Peculiar Common Law right 186 
 
278 INDEX. 
 
 Pago 
 COVENANTS WHICH RUN WITH LAND— Continued. 
 
 Personal always 22 
 
 Privity of estate determining running denied 48 
 
 Requirements of at Common Law. See Requirements. 
 
 Specialty in form ^ 27 
 
 Suit in name of owner of land _. . 27 
 
 Theory of similarity to easements 48 
 
 Theory of similarity to easements refuted 57 
 
 Whether can bind in futuro 262 
 
 COVENANTS— WORDING OP, may mean "grant" 50 
 
 Expression of intention the object in construing 205 
 
 DAKOTA— Statute law as to leases 73 
 
 DAMAGES on breaches of covenant 263 
 
 on breaches of warranty 43 
 
 DEBT cannot be brought against lessee after assignment of lease 95 
 
 DECISIONS— Effect of 13 
 
 Their meaning 12 
 
 DEFINITION of covenants which run with land 17 
 
 DELAWARE— Statute law as to leases 73 
 
 DIRECTIONS for drawing and executing covenant summarized. 265 
 
 DISSEISOR may do homage 52 
 
 May pay rent 52 
 
 Not bound by warranty 43 
 
 Relations explained 179 
 
 DOWER — Necessity for release In executing covenants. 269, 272, 274 
 
 EASEMENTS— Definitions of 48n 
 
 Distinguished from covenants 21 
 
 Distinguished from covenants as to building lines 225 
 
 Distinguished from covenants in equity 232 
 
 Distinguished from covenants as to uses of property 228 
 
 Difficulty in distinguishing from covenants leaving open 
 
 ways or parks 221 
 
 Dower in 272 
 
 Equitable. See Equity, Equitable Easements. 
 
 Granted in futuro , . . . . 215 
 
 Implied with covenants for fencing 212 
 
 Implied with party-wall covenants 215 
 
 Nature of 48 
 
 No way to distinguish from covenants by wording 207 
 
 Of necessity 160n 
 
 Passive character of 48 
 
 Some may be good in equity as such 23& 
 
INDEX. 279 
 
 Page 
 
 EASEMENTS— Continued. 
 
 Spurious, existence doubted 49 
 
 Spurious, origin for covenants 49 
 
 Spurious, what are _ 49 
 
 ELECTION OF REMEDIES 263 
 
 EQUITABLE CHARGE— Covenants in equity not 232 
 
 Covenant to pay rent may be 241 
 
 Certain others may be - 239 
 
 Idea of, as to benefits 138 
 
 Idea of, as to burdens - 167 
 
 Operation of rule against perpetuities upon 239 
 
 Some clear American examples 246 
 
 EQUITABLE EASEMENTS apply to restrictive covenants only. 239 
 
 Cannot be made to bind land at law. 237 
 
 Compared with tenure in common 233 
 
 Generally accepted in America 247 
 
 History and development of 235 
 
 May sometimes be pure easements 239 
 
 May sometimes be good rent charges in equity 241 
 
 Not confined in America to rights unenforceable at law 245 
 
 Not recognized in Virginia 253n 
 
 EQUITY cannot enforce active covenant 231 
 
 Enforcement of covenants in, discussed 234 
 
 Extinguishment of covenants in 257 
 
 Intention important in 252 
 
 Laches » 261 
 
 Law in England a matter of restrictive covenants only 242 
 
 Law not limited to restrictive covenants in America 244 
 
 Law not enlarged by mandatory injunction 243 
 
 Notice in » 253 
 
 Personal covenant may run in 255 
 
 Registration laws affecting 256 
 
 Restrictive covenant in, alone enforceable 243 
 
 Restrictive covenant in, not a charge 234 
 
 Restrictive covenant in, not an easement 232 
 
 Restrictive covenant in, not a trust 233 
 
 Rights in, discussed , 231 
 
 Rights in, summary of 259 
 
 Transfer of land not necessary to running in 249 
 
 ESCHEAT— Effect on warranty 34 
 
 Effect explained _. . 178 
 
 ESCROW— Deed of 122 
 
 ESTOPPEI^Title by, affecting covenants in leases 12S 
 
 EXECUTION SALES— Effect of 86 
 
280 INDEX. 
 
 Paget 
 EXTINGUISHMENT OP COVENANT 
 
 By repurchasing land 184 
 
 In equity 257 
 
 Partial 185 
 
 FENCING— COVENANTS FOR , 
 
 Requisites for 212 
 
 Similarity to covenant for repairs 240 
 
 Whether easement or covenant » 211 
 
 FLORIDA — Statute law as to leases 73 
 
 FORMS 267 
 
 GAVELKIND, in warranty 39, 178 
 
 GEORGIA — Running of burdens at Common Law in 162 
 
 Statute law as to leases _ 73 
 
 GLANVILL— Idea of no necessity for assets to bind heir to war- 
 ranty 38 
 
 GRANT, in party-wall agreements 218 
 
 Necessary to running of covenant 197 
 
 Not necessarily the same instrument as covenant 198 
 
 Of what character 198 
 
 Of corporeal hereditament necessary in England 199 
 
 Of corporeal hereditament needless in leases 200 
 
 Of either in America 200 
 
 HEIR, benefited by covenant in old law 62 
 
 Bound by warranty 36 
 
 Burdened by covenant in old law 62 
 
 Consent of, necessary to alienation of land 35 
 
 Identity of between ancestor and heir 36 
 
 Naming of, to be bound by warranty 36 
 
 Naming of, as applied to covenant 59 
 
 Naming of, to be bound to covenant in lease 105 
 
 Naming of, to be bound in covenants generally 204 
 
 Naming of, in equity 248 
 
 Reason why warranty bound ^. . . 37 
 
 Right of, in land of ancestor 35 
 
 HOLMES — Theory of, as to covenants _. 48 
 
 HOMAGE— Effect of 52 
 
 Implies warranty 37 
 
 HOMAGE ANCESTRAL _ 35 
 
 IDAHO — Statute law as to leases 73 
 
 ILLINOIS — Running of burdens at Common Law in 160 
 
 Statute law as to leases , 73 
 
INDEX. 281 
 
 Page 
 
 IMPLIED— Contract precluded by express 85 
 
 Contract of suretyship 94 
 
 What is implied and express contract 94n 
 
 INDIANA — Running of burdens at Common Law in 159 
 
 Statute law as to leases 73 
 
 INCORPOREAL HEREDITAMENTS— 
 
 Running of covenants with 147n 
 
 Running of covenants with, allowable in America 200 
 
 Running of covenants with, not allowable at Common Law 
 
 in England 199 
 
 Running of covenants with, in leases 200 
 
 INJUNCTION — Mandatory, does not enlarge enforcement of 
 
 covenants in England 243 
 
 Means of enforcing covenants in equity 232 
 
 Only covenants so enforceable run in England 232, 242 
 
 INTENTION as to meaning of covenants in leases 115 et seq. 
 
 Expression of, generally determines meaning of covenants . . 205 
 Important in equity 252 
 
 IOWA — Running of burdens at Common Law in 165 
 
 Statute law as to leases 73 
 
 JUDGE-MADE LAW ^ 12 
 
 Exercise of 145 
 
 JUDGMENT— Effect of, on alienation 141 
 
 KANSAS — Running of burdens at Common Law in 163 
 
 Statute law as to leases _. . . . 73 
 
 KENTUCKY— Running of burdens at Common Law in 164 
 
 Statute law as to leases 73 
 
 KINDS of covenants in leases 109 
 
 LACHES 261 
 
 .XiAND, bound by warranty • 60 
 
 Conclusion as to whether bound by covenant 57 
 
 Explanation of binding of, by warranty 178 
 
 Ultimately liable for running covenant 90 
 
 Value of, limited recovery on warranty 180 
 
 Value of, does not limit recovery on covenant 181 
 
 What affected by covenant 28 
 
 What affected by warranty 60 
 
 X«AW— Moral laxity of early 37n 
 
 Written and unwritten 12 
 
 XiBASE — Assignment of. See Assignment. 
 
 For-years could not imply a warranty 45 
 
 Interest of grantor in , 30 
 
282 INDEX. 
 
 Page 
 LEASE— Continued. 
 
 Only a contract 85 
 
 Parole. See Parole Leases. 
 LESSEE — Liability of, after assignment confined to action of 
 
 covenant - 95 
 
 Rights and liabilities after assignment of lease 92 
 
 LESSOR — Rights and liabilities of after assignment of lease. . 61 
 
 Rights and liabilities of before assignment of lease 61 
 
 LIMITATIONS— Statutes of. Their effect to be considered in 
 
 distinguishing easements from some covenants 222 
 
 LOUISIANA— Statute law as to leases 73 
 
 Statute 32 H. VIII. not effective in 114n 
 
 MAINE — Statute law as to leases 73 
 
 MARYLAND — Running of burdens at Common Law in 161 
 
 Statute law as to leases 73 
 
 MASSACHUSETTS— Running of burdens at Common Law in 151 
 
 Statute law as to leases 73 
 
 MATTER OF COVENANTS in general 202 
 
 In leases 109 et seq. 
 
 MERGER OF ESTATES— Effect on covenants in leases 130 
 
 MICHIGAN— Statute law as to leases 73 
 
 MILLDAMS— Covenants as to 211 
 
 MINNESOTA — Running of burdens at Common Law in 164 
 
 Statute law as to leases 73 
 
 MISSISSIPPI— Running of burdens at Common Law in 164 
 
 Statute law as to leases 73 
 
 MISSOURI — Running of burdens at Common Law in 165 
 
 Statute law as to leases 73 
 
 MONTANA— Statute law as to leases 73 
 
 MORTGAGE SALES— As to privity of purchasers at sale 177 
 
 As to reversion and lease 123 
 
 Effect on covenant 86 
 
 MORTMAIN— Statutes of 31, 77 
 
 NEBRASKA — Statute law as to leases 73 
 
 NEVADA — Running of burdens at Common Law in 165 
 
 Statute law as to leases 73 
 
 NEW HAMPSHIRE— Statute law as to leases , 73 
 
 NEW JERSEY — Running of burdens at Common Law in 166 
 
 Statute law as to leases ^S 
 
 NEW MEXICO— Statute law as to leases 7$ 
 
IITDES. 283 
 
 Page 
 
 NEW YORK — Quia Emptores (Statute of) not operative in 175 
 
 Running of burdens at Common Law in 154 
 
 Statute law as to leases 73 
 
 NORTH CAROLINA— Running of burdens at Common Law in.. 162 
 
 Statute law as to leases 73 
 
 NORTH DAKOTA— Statute law as to leases 73 
 
 NOTICE— Affected by registration laws 256 
 
 Effect of, in equity discussed 253 
 
 Effect of, on extinguishment of covenants 257 
 
 Effect of, on running of covenants at law 138 
 
 Need not be express 255 
 
 What necessary at law 138 
 
 OHIO — Running of burdens at Common Law in 166 
 
 Statute law as to leases 73 
 
 OKLAHOMA— Statute law as to leases 73 
 
 OREGON— Statute law as to leases 73 
 
 PARKS — Covenants as to. See Ways. 
 
 PAROLE AGREEMENTS- In equity 236-249 
 
 Their running discussed as to grants 190 
 
 Their running at law explained and disapproved 193 
 
 What are 189 
 
 PAROLE LEASES— Action upon, not local 87 
 
 Enforced in names of original parties 87 
 
 Not covered by statute 32 H. VIII 87 
 
 Suggestions as to nature of 88 
 
 What are , 88 
 
 PARTIAL ASSIGNMENTS, classified in case of lease and rever- 
 sion 98 
 
 Effects of, in case of lease and reversions 98 et seq. 
 
 In order to, the covenant must be severable 102 
 
 Of lease distinguished from subletting 101 
 
 Of fee estates 177 
 
 Of conditions 102 
 
 Their effect on covenants in general 185 
 
 Theoretically impossible 103 
 
 PARTIES- Affected by covenants generally 57 
 
 Affected by covenants at Common Law 174 et seq. 
 
 Affected by warranty 43 
 
 Affected in equity 250 
 
 Affected in leases, and their rights 90 et seq. 
 
 Naming of, at Common Law generally 205 
 
 Naming of. In equity 248 
 
284 INDEX. 
 
 Page 
 
 PARTIES— Continued. 
 
 Original only, may enforce parole leases 87 
 
 Rights and obligations of, in party- wall agreements 217 
 
 PARTY- WALL AGREEMENTS— 
 
 Easement granted by implication 216 
 
 Forms for - 267 
 
 Grant of incorporeal hereditament sometimes involved 201 
 
 Legal status discussed 215 
 
 Rights and obligations of parties to 217 
 
 Rule against perpetuities involved 220 
 
 What grant requisite for - 218 
 
 PENNSYLVANIA— Quia Emptores (Statute of) not operative in. 150 
 
 Running of burdens at Common Law in 149 
 
 Statute law as to leases 73 
 
 PERPETUITIES— RULE AGAINST, 
 
 Affects equitable charges 239 
 
 Limits some covenants 186 
 
 Offended by party- wall agreements 220 
 
 POWERS — Operation of upon covenants in leases 121 
 
 Operation of, upon covenants with fees 263 
 
 Similarity of operation of, to that of escrow 122 
 
 PRACTICE 264 
 
 PRESCRIPTION— RIGHTS AND DUTIES BASED UPON. 
 
 Active duties, how created 51 
 
 Distinguished from covenants 22 
 
 Recognized spurious easements 51 
 
 When enforced by covenant 53 
 
 PRIVITY OF ESTATE— Affecting mortgage and tax sales 86 
 
 Asserted as affecting covenants 70 
 
 As to parties to covenants 174 
 
 Denial of connection with covenants 48 
 
 Explained _. 69 
 
 How affected by Statute 32 H. VIII 84 
 
 Meaning of 175 
 
 Serves to indicate parties meant by "heirs or assigns" 85 
 
 QUIA EMPTORES— See Statute. 
 
 REAL ACTIONS— Abolished 35 
 
 REAL PROPERTY COMMISSION 122 
 
 REBUTTER— Effect of , 37 
 
 In gavelkind 40 
 
 Use of warranty as 37 
 
 REGISTRATION LAWS— Effect on covenants in leases 129 
 
 Effect on covenants in equity and notice ^. 256 
 
INDEX. 285 
 
 Page 
 
 REMEDIES— Election of 263 
 
 RENT — Covenant to pay, may be equitable charge 241 
 
 Disseisin of 52 
 
 Enforced by covenant 53 
 
 Its nature 52 
 
 Right not personal 87 
 
 REPAIRS — Covenants as to, compared with covenants to fence., 240 
 
 REQUIREMENTS FOR COVENANTS, 
 
 As to sealing and signing 183 
 
 As to wording 202 
 
 As to grant » 197 
 
 Grant of corporeal hereditament necessary in England 199 
 
 Grant of corporeal or incorporeal hereditament in America. . 200 
 In equity less severe 248 
 
 RESTRICTIVE COVENANTS 
 
 In equity distinguished from other rights 233 
 
 Operation of, at law discussed 220, 224, 227 
 
 RHODE ISLAND — Running of burdens at Common Law in 159 
 
 Statute law as to leases 73 
 
 RUN — What covenants may run with lease 109 et seq. 
 
 RUNNING OF COVENANTS, Asserted as to lease, but denied 
 
 as to reversion 65 
 
 Denied as to burdens by early judges 59, 65 
 
 Discussed 141 
 
 Effect of intention on, in leases 115 
 
 In equity 241 
 
 Law of, as to burdens in the several states 149 
 
 Principle of, that of suretyship 90 
 
 Requisites for , 59 
 
 Theories as to, at law 138 
 
 Theory of editors of Smith's Leading Cases 67 
 
 RUNNING OF PAROLE AGREEMENTS with grants 188 
 
 RUNNING OF PAROLE LEASES discussed 88 
 
 SEALS — Originally necessary 188 
 
 Necessary in modern law 189 
 
 Not necessary in equity 250 
 
 SEVERANCE. See Partial Assignments. 
 
 SOUTH CAROLINA— Statute law as to leases 73 
 
 SOUTH DAKOTA— Statute law as to leases 73 
 
 STATUTE De Bigamis. Effect of 43 
 
 De Donis. Effect on warranty 38 
 
 Of Gloucester. Effect on warranty 35, 37 
 
286 INDEX. 
 
 Pago 
 STATUTE— Continued. 
 
 Of Quia Emptores. Effect on warranty _ 35 
 
 Not operative in New York 175 
 
 Not operative in Pennsylvania 150 
 
 Of 32 H. VIII., ch. 34, construed and examined 78 
 
 General idea of effect 82 
 
 Law as to the several states ,. 73, 114n 
 
 Purpose of 31, 77 
 
 Sugden's idea of 79 
 
 Text of _ 71 
 
 Whether transferring privity of estate or privity of con- 
 tract , 83 
 
 STIPULATIONS IN DEEDS discussed 25n 
 
 Running of, in deeds poll 190 
 
 SUBLETTING — A partial assignment of lease 99 
 
 In case of conditions 104 
 
 What is ,. 96 
 
 SUCCESSION— Idea of in early law 36 
 
 SURETYSHIP involved in running agreements 90 
 
 Theory as to explained 94 
 
 TAXES— Covenants to pay 113 
 
 Sales for, effect on covenants 86 
 
 TENANT — Attornment of, abolished 87 
 
 Protected by warranty 33 
 
 TENNESSEE — Running of burdens at Common Law In 163 
 
 Statute law as to leases 73 
 
 TESTS for running of covenants in leases 109 
 
 TEXAS — Statute law as to leases 73 
 
 TOUCHING AND CONCERNING THE LAND— Source of idea. . 60 
 
 What covenants are ,. .109 et seq. 
 
 TRANSFER OF LAND— Necessity for in warranty applied to 
 
 covenants 59, 61, 68 
 
 Not necessary in equity 249, 252 
 
 TRUST — Covenant in equity not a 233 
 
 TRUSTEE— Obligation of heirs of 37n, 178 
 
 USES— Effect of on heirs 37 
 
 USES OF PROPERTY— Covenants respecting, discussed 227 
 
 UTAH — Statute law as to leases 73 
 
 VERMONT — Running of burdens at Common Law in 159 
 
 Statute law as to leases 73 
 
 VIRGINIA — Running of burdens at Common Law in 167 
 
 Statute law as *o leases 73 
 
INDEX. 287 
 
 Page 
 
 VOUCHER explained 41 
 
 Who may vouch 42 
 
 WALLS — Covenants as to 211 
 
 Party-walls. See Party-walls. 
 
 WARRANTIA CHARTAE explained 41 
 
 WARRANTY — Action on not local, except to get new land 85 
 
 Assets received limit liability 36, ISO 
 
 Bound land 36, 39, 178 
 
 Connection of, with gavelkind 39, 179 
 
 Contract, in nature 33 
 
 Derivation of term 34n 
 
 Disseisin in relation to, explained 179 
 
 Disseisor not bound by - 43 
 
 Earliest contracts were 45 
 
 Effect upon estate-tail 38 
 
 Effect upon heir 36 
 
 Effect upon land 34 
 
 Escheat affecting 34, 178 
 
 Essentials of, applied to covenants 59 
 
 Express and implied 33 
 
 Express, the basis of covenants 33 
 
 Express, origin and purpose of 35 
 
 Express, who may enforce 42 
 
 Express, who may enforce, explained 179 
 
 Form for express 42n 
 
 How enforced 41 
 
 Implied, affected by statutes 35 
 
 Implied, involved in homage 37 
 
 Implied, a new warranty by heir 37 
 
 Implied, survives in homage ancestral 35 
 
 Implied, who may enforce 41 
 
 Lien real, so-called 39 
 
 Lineal and collateral 39 
 
 Personal relation 179 
 
 Possession of land a later incident of 33 
 
 Protection the gist of contract _. 33 
 
 Requirements to bind heir 36 
 
 Source of covenants 33 
 
 Use of, as rebutter 37 
 
 WASHINGTON— Statute law as to leases 73 
 
 WAYS AND PARKS— Covenants as to 220 
 
 Covenants as to resemble easements 221 
 
 Statute of Limitations affects ., 222 
 
288 INDEX. 
 
 Page 
 WEST VIRGINIA— Running of burdens at Common Law in 164 
 
 Statute law as to leases 73 
 
 WISCONSIN— Running of burdens at Common Law in 161 
 
 Statute law as to leases — 73 
 
 WORDING OF COVENANTS— No especial form of, to express 
 
 intention 205 
 
 WYOMING— Statute law as to leases 73 
 

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