ancient warranty, has done away the value of this distinction; and the usual personal covenants inserted in a conveyance of the fee, are, 1. That the grantor is lawfully seised; 2. That he has good right to convey; 3. That the land is free from encumbrances; 4. That the grantee shall quietly enjoy; 5. That the grantor will warrant and defend the title against all lawful claims. The covenants of seisin, and of a right to convey, and that the land is free from encumbrances, are personal covenants, not running with the land, or passing to the assignee; for, if not true, there is a breach of them as soon as the deed is executed, and they become choses in action, which are not technically assignable. But the covenant of warranty, and the covenant for quiet enjoyment, are prospective, and an actual ouster or eviction is necessary to constitute a breach of them. They are,

Bradshaw's case, 9 Co. 60

Muscot v. Ballet, Cro. J. 369. Glinieter D. Audley, T. Raym. 14. Hamilton v. Wilson, 4 Johns. Rep. 72. Logan . Moulder, 1 Arkansas' Rep. 323. Lomax's Dig. vol. ii. 271. Clark v. Swift, 3 Metcalf, 390. Greenby v. Wilcox, 2 Johns. Rep. 1. Keer v. Shaw, 13 ibid. 236. Booth v. Stark, 1 Conn. Rep. 244. Mitchell v. Waruer, 5 ibid. 597. Withy v. Mumford, 5 Cowen's Rep. 137. Birney v. Hann, 3 Marshall's Rep. 324. Innis v. Agnew, 1 Ohio Rep. 389. Parsons, Ch. J., in Marston v. Hobbs, 2 Mass. Rep. 439. Bickford v. Page, ibid. 455. Chapman v. Holmes, 5 Halsted's Rep. 20. Garfield v. Williams, 2 Vermont Rep. 327. Ch. J., in Thayer v. Clemence, 22 Pick. 493. The covenant of warranty is not broken without eviction by paramount title, and many circumstances have been held to be tantamount to an ouster in some of the states and denied in others. See the cases pro and con cited by Mr. Wilcox, in his learned note to 10 Ohio Rep. 317–335. In New-Hampshire, Massachusetts, and Ohio, a seisin in fact, and whether by right or wrong, has been held to satisfy the covenant of seisin. 1 N. H. Rep. 175. 2 Mass. Rep. 439. 3 Ohio Rep. 220. 307. But this construction of the covenant of seisin does not do it justice, and it does not prevail in other states.

Emerson v. Proprietors in Minot, 1 Mass. Rep. 464. Kelly v. Dutch Church, 2 Hill's Rep. 105. If the ouster be lawful, the tenant may yield to a dispossession, and have his remedy on his covenant without involving himself in a law suit to defend a bad title. Hamilton v. Cutts, 4 Mass. Rep. 349. Mr. Justice Wilde, in Sprague v. Baker, 17 Mass. Rep. 589, was inclined strongly to the opinion that if an encumbrance be enforced and discharged after an assignment by the covenantee, the assignee ought to be able to sue on it as principally concerned in it.

therefore, in the nature of real covenants, and they run with the land conveyed, and descend to heirs, and vest in assignees or the purchaser. The distinction taken in the American cases is supported by the general current of English authorities, which assume the principle that covenant does not lie by an assignee, for *472 a breach done before his time. On the other

Lewis v. Ridge, Cro. E. 863. Comyn's Dig. tit. Covenant, B. 3. Lucy v. Levington, 2 Lev. 26. Andrew v. Pearce, 4 Bos. § Pull. 158. Covenants which run with the land, are exceptions to the rule of the common law that choses in action cannot be assigned. They cannot be separated from the land and transferred without it, but they go with the lands, as being annexed to the estate, and bind the parties in respect to the privity of estate. But this is to be understood with the qualification that the covenants will pass where the possession goes from one person to another by deed, and there is afterwards a total failure of title, and a subsequent eviction. Beddoe v. Wadsworth, 21 Wendell, 120. The assignee, by reason of the privity of estate, is entitled to the benefit of, and is bound by all covenants running with the land. Spencer's case, 5 Co. 17, b. Spencer's case is memorable in the English judicial history, for the refined distinctions which have been raised on the vexed question, what covenants do and do not run with the land. Serjeant Williams, in his notes to 1 Saund. 240, n. 3, says, that the better opinion seems to be, that the assignee of the reversion could not bring an action of covenant at common law prior to the statute of 32 Henry VIII., and that at common law covenants ran with the land, but not with the reversion. The numerous decisions, English and American, on this intricate head of the law of real property are very industriously collected in Smith's Leading Cases, under the title of Spencer's case. Law Library, U. S. vol. 27. If a lessor grants over his reversion, he shall not have an action for rent due after his assignment, for the privity of contract follows the estate. Walker's case, 3 Co. 22. And the assignee or purchaser of a covenant of warranty running with the land, who is evicted, may sue any one or more of the covenantors, whether immediate or remote, but he must show a damage to himself from the breach alleged, by first making satisfaction upon his own covenant to the person evicted; in like manner as the holder of negotiable paper may sue his immediate or any prior endorser, after he has taken up the paper from the holder below him. Kingdon v. Nottle, 1 Maule & Selw. 353. 4 ibid. 53. Withy v. Mumford, 5 Cowen's Rep. 137. Markland v. Crump, 1 Dev. & Battle, 94. In Norman v. Wells, 17 Wendell, 136, Mr. Justice Cowen discusses at large the doctrine of inherent covenants running with the land, and of an assignable character, in contradistinction to those which are collateral or personal. The numerous authorities are fully and ably reviewed from the leading authority of Spencer's case, 3 Co. 16, and that of Bally v. Wells, 3 Wils. 27, which is a condensation of the resolutions

hand, it was decided by the K. B., in Kingdon v. Nottle, that a covenant of seisin did run with the land, and the assignee might sue, on the ground that want of seisin is a continual breach. The reason assigned for this last decision is too refined to be sound. The breach is single, entire, and perfect in the first instance. It is, however, to be regretted, that the technical scruple that a chose in action was not assignable, does necessarily prevent the assignee from availing himself of any, or all of the covenants. He is the most interested, and the most fit person to claim the indemnity secured by them, for the compensation belongs to him, as the last purchaser, and the first sufferer.

The general covenant, that the grantor will warrant and defend the title, (and which is usually the concluding and sweeping covenant in a deed,) is also a personal covenant, binding on the personal representatives of the covenantor; and it is not a covenant real, in the sense of the old feudal law, confining the remedy to voucher, or warrantia charta. It is in effect a covenant for quiet enjoyment." The ancient remedy is inadequate and inexpedient, and has become entirely obsolete."

in the other, and he concluded that to render a covenant available to the assignee of a lease, it must be touching or concerning the thing demised, as effecting the value of the reversion, or the term, or influencing the rent.

⚫ 1 Maule & Selw. 355. 4 Ibid. 53. In Ohio, the covenant of seisin, when the covenantor is in possession claiming title, is held to be a real covenant running with the land. But if he be not in possession, and the title be defective, it is in the nature of a personal covenant, and is broken as soon as made, and never attaches to the land. Adm'r. of Backus v. M'Coy, 3 Ohio Rep. 211. This was in accordance with the English decisions in Maule & Selwyn; but those decisions have been severely criticised, and condemned, by the Supreme Court of Connecticut, in Mitchell v. Warner, 5 Conn. Rep. 497.

Caldwell v. Kirkpatrick, 6 Alabama Rep. N. S. 60.

• Parsons, Ch. J., in Gore v. Brazier, 3 Mass. Rep. 544, 545, and in Marston v. Hobbs, 2 ibid. 438. Townsend v. Morris, 6 Cowen's Rep. 123; and Tilghman, Ch. J., in Bender v. Fromberger, 4 Dall. Rep. 442. A covenant to execute and deliver a good and sufficient deed of the land in fee, means an operative and effectual conveyance, one that carries with it a good and

The distinction between the covenants that are in gross, and covenants that run with the land, (and which are covenants real, annexed to or connected with the estate, and beneficial to the owner of it, and to him only,) would seem to rest principally on this ground, *that to make a covenant run with the land, there *473 must be a subsisting privity of estate between the covenanting parties. A covenant to pay rent, or to produce title deeds, or for renewal, are covenants of the latter character, and they run with the land.

All covenants concerning title run with the land, with the exception of those that are broken before the land passes.

sufficient title. Clute v. Robinson, 2 Johns. Rep. 595. Judson v. Wass, 11 ibid. 525. Carpenter v. Bailey, 17 Wendell, 244.

Lord Kenyon, in Webb v. Russell, 3 Term Rep. 402. Lord Ellenborough, in Stevenson v. Lambard, 2 East's Rep. 580. Roach v. Wadham, 6 ibid. 289. Bayley, J., in Paul v. Nurse, 8 Barnw. & Cress. 486. Hurd v. Curtis, 19 Pick. Rep. 459. ↳ Spencer's case, 5 Co. 16, a. Vyvyan v. Arthur, 1 Barnw. & Cress. 416. Vernon v. Smith, 5 Barnw. & Ald. 1. Roe v. Haley, 12 East's Rep. 469. Covenant for rent will not lie against the assignee of the lessee, if he assigns his interest in the premises before the rent becomes due. Paul v. Nurse, 8 Barnw. & Cress. 486. The assignee is liable only for covenants broken while he continues assignee. He is liable only on the privity of estate; and he may discharge himself of liability for subsequent breaches, by assigning to another. Lekeux v. Nash, Str. Rep. 1221. Valliant v. Dodemede, 2 Atk. Rep. 546. Churchwardens v. Smith, 3 Burr. Rep. 1271. Taylor v. Shum, 1 Bos. & Pull. 21. Armstrong v. Wheeler, 9 Cowen's Rep. 88. But he is liable for a breach incurred in his own time, though the action be not commenced until after he has assigned the premises. Harley v. King, 2 Cromp ton, Meeson & Roscoe, 18. The New-York Revised Statutes, vol. i. 747, sec. 24, would seem impliedly to have destroyed all remedy by action by assignees of lessees against assignees of lessors upon covenants against encumbrances, or relating to the title or possession of the premises demised. There must have been some mistake in the arrangement or language of the section, for the provision in the statute of 32 Hen. VIII., c. 34, was adopted in all the prior revisions of the statute law of New-York, and it never could have been the intention to abolish it.

© An able writer in the London "Law Magazine," No. 22, art. 4, discusses the character of the covenant for the production of title deeds, and concludes that the benefit of this covenant will run with the land of the covenantee, so long as a privity of estate subsists between the owners of the several estates to which the deeds relate, but no longer.

There are implied, as well as express covenants concerning land, and the former run with the land. The grant of a water course implies a covenant by the grantor not to disturb the grantee in the enjoyment of it. Any disturbance in the enjoyment of property contrary to the grant of the party creating the disturbance, is a breach of covenant. In Pennsylvania, Delaware, Illinois, Indiana, Missouri, Mississippi, and Alabama, it is declared by statute, that the words grant, bargain and sell, in conveyances in fee, shall, unless specially restrained, amount to a covenant that the grantor was seised of an estate in fee, freed from encumbrances done or suffered by him, and for quiet enjoyment as against his acts. But, in Grantz v. Ewalt, it was adjudged that those words, in the Pennsylvania statute of 1715, (and the decision will equally apply to the same statutory language in the other states,) did not amount to a general warranty, but merely to a covenant that the grantor had not done any act, nor created any encumbrance, whereby the estate

might be defeated. Upon this construction, the *474 words of the statute *are divested of all dangerous

tendency; and they amount to no more than did the provision in the English statute of 6 Anne, c. 35, sec. 30, upon the same words. It may not be very inconvenient that those granting words should imply a covenant against the secret acts of the grantor; but beyond that point, there is great danger of imposition upon the ignorant and the unwary, if any covenant be implied, that it is not stipulated in clear and precise terms.

• Russell v. Gulwell, Cro. E. 657. Bayley, J., in Seddon v. Senate, 15 East's Rep. 78, 79.

b 2 Binney's Rep. 95. Latham v. Morgan, 1 Smedes & Marshall, Miss. Ch. Rep. 611. S. P.

• Where a deed contains an express covenant, as of warranty, that constitutes the extent of the liability of the grantor and does away the implied covenants. Vanderkarr v. Vanderkarr, 11 Johns. Rep. 122. Weems v. McCaughan, 7 Smedes & Marshall, 422.