Who are bound by covenants. Who are not. Apportionment of $696. A covenant running with the land binds those only who acquire the whole estate of the covenantor in some part of the property. Davis v. Morris, 35 Barb., 227; Co. Litt., 385, a. $ 697. No one, merely by reason of having acquired an estate subject to a covenant running with the land, is liable for a breach of the covenant before he acquired the estate,' or after he has parted with it,2 or ceased to enjoy its benefits.3 1 Day v. Swackhamer, 2 Hilt., 4; Tillotson v. Boyd, 4 Sandf., 516; see Astor v. Hoyt, 5 Wend., 603. "Young v. Peyser, 3 Bosw., 308; Armstrong v. Wheeler, 9 Cow., 88; Childs . Clark, 3 Barb. Ch., 52; Wolveridge v. Steward, 3 M. & Scott, 561; rev'g S. C., 9 Bing., 60; Walker v. Reeve, 3 Doug., 19. Astor v. L'Amoreux, 4 Sandf., 524; Carter. Hammett, 18 Barb., 608; McIntyre v. Scott, 8 Johns., 169; Eaton v. Jacques, 1 Doug., 461. Although Eaton v. Jacques has been overruled in England (Williams v. Bosanquet, 1 Brod. & B., 238), its doctrine is law in this state. $ 698. Where several persons, holding by several covenants. titles, are subject to the burden,' or entitled to the benefit of a covenant running with the land, it must be apportioned among them according to the value of the property subject to it held by them respectively, if such value can be ascertained, and if not, then according to their respective interests in point of quantity.3 'Van Rensselaer v. Bradley, 3 Denio, 135; Van Rens selaer v. Gallup, 5 id., 454; Astor v. Miller, 2 Paige, 68 Cole v. Patterson, 25 Wend., 456. 'Van Rensselaer v. Jones, 2 Barb., 643. TITLE IV. EXTINCTION OF OBLIGATIONS. CHAPTER I. Performance.. II. Offer of performance. III. Prevention of performance or offer. IV. Accord and satisfaction. V. Novation. VI. Release. CHAPTER I. PERFORMANCE. SECTION 699. Obligation extinguished by performance. 700. Performance by one of several joint debtors. 701. Performance to one of joint creditors. 702. Effect of directions by creditors. 703. Partial performance. 704. Payment, what. 705. Application of general performance. S 699. Full performance of an obligation, by the party whose duty it is to perform it,' or by any other person on his behalf, and with his assent,' if accepted by the creditor, extinguishes it. 1 Performance by a third person, without authority from 'Kemp v. Balls, 10 Exch., 607; Jones v. Broadhurst, 9 of $700. Performance of an obligation, by one several persons who are jointly liable under it, extinguishes the liability of all.. $ 701. An obligation in favor of several persons is extinguished by performance rendered to any of them,1 except in the case of a deposit made by obligation ed by per extinguish formance. Perform of several ance by one joint debtors. Performof joint ance to one creditors. Effect of directions owners in common, or in joint ownership, which is regulated by the Title on DEPOSIT. 1 Shepard v. Ward, 8 Wend., 542; see Carman v. Pultz, 21 N. Y., 547. Husband v. Davis, 10 C. B., 650; Innes v. Stephenson, 1 Moo. & R., 145. This provision does not of course apply to partnerships, whose title is distinguished from joint ownership by section 175. $702. If a creditor, or any one of two or more by creditor. joint creditors, at any time directs the debtor to perform his obligation in a particular manner, the obligation is extinguished by performance in that manner, even though the creditor does not receive the benefit of such performance. Partial performance. Payment, what. Application of general ance. Thus, if the creditor directs money to be sent to him by mail, it is at his risk (Graves v. Amer. Exch. Bank, 17 N. Y., 207; Eyles v. Ellis, 4 Bing., 112). S 703. A partial performance of an indivisible obligation extinguishes a corresponding proportion thereof, if the benefit of such performance is voluntarily retained by the creditor, but not otherwise.' If such partial performance is of such a nature that the creditor cannot avoid retaining it, without injuring his own property, his retention thereof is not presumed to be voluntary." 'Smith v. Brady, 17 N. Y., 187; Cunningham v. Jones, 20 id., 486; Pullman v. Corning, 9 id., 93. Ib. $ 704. Performance of an obligation for the delivery of money only, is called payment. $705. Where a debtor, under several obligations perform- to another, does an act, by way of performance,1 which is equally applicable to two or more of such obligations, such performance is applied as follows: 1. If, at the time of performance, the intention or desire of the debtor that such performance should be applied to the extinction of any particular obligation, is manifested to the creditor, it is so applied; 6 7 8 2. If no such application is then made," the creditor, within a reasonable time after such performance, may apply it toward the extinction of any obligation, performance of which was due to him from the debtor at the time of such performance; except that if similar obligations were due to him both individually and as a trustee, he must, unless otherwise directed by the debtor, apply the performance to the extinction of all such obligations in equal proportion;10 and an application once made by the creditor cannot be rescinded without the consent of the debtor;11 3. If neither party makes such application, within the time prescribed herein, the performance is applied to the extinction of obligations in the following order; and, if there is more than one obligation of a particular class, to the extinction of all in that class, ratably: (1.) Of an obligation due at the time of performance;12 (2.) Of an obligation not voidable at the option of the debtor;13 (3.) Of an obligation secured by a lien, or collateral undertaking;14 (4.) Of interest;15 (5.) Of the obligation earliest in date of maturity;16 (6.) Of the obligation which it is most for the interest of the debtor to extinguish.17 'This subject is usually treated exclusively with reference to payments of money, which have indeed furnished all the cases upon which decisions have been reported. Obviously, however, the same principles are equally applicable to all classes of contracts, as for example, where one has agreed, at various times, to deliver parcels of merchandise of the same species, such as wheat, flour, fruit, &c. Allen v. Culver, 3 Den., 284; Philpott v. Jones, 2 Ad. & El., 41. Rensselaer v. Roberts (5 Den., 470), somewhat dif ferent language is used. On the whole, it seems reasonable to lay down the rule as in the text. The slightest act manifesting such desire is sufficient (see Roberts v. Garnie, 3 Cai., 14). Allen v. Culver, 3 Den., 284; Philpott v. Jones, 2 Ad. & El., 41. • Ib. 'See Bridenbecker v. Lowell, 32 Barb., 9, 22; Allen v. Culver, 3 Den., 284, 291. But in many cases out of this state it has been held that the creditor may exercise this right at any time (Mayor of Alexandria v. Patten, 4 Cranch, 317; Haynes v. Waite, 14 Cal., 446; Mills v. Fowkes, 5 Bing. N. C., 455; see Philpott v. Ellis, 2 Ad. & El., 41). 'Arnold v. Mayor of Poole, 4 Man. & Gr., 860; Trotter v. Grant, 2 Wend., 413; Clark v. Burdett, 2 Hall, 197; Mills v. Fowkes, 5 Bing. N. C., 455; Van Rensselaer v. Roberts, 5 Den., 470. Niagara Bank v. Rosevelt, 9 Cow., 409; affirming S. C., Hpk., 579; Baker v. Stackpoole, 9 Cow., 420, 436. 10 See Bridenbecker v. Lowell, 32 Barb., 9. "Allen v. Culver, 3 Den., 284. "Thomas v. Kelsey, 30 Barb., 268; Hunter v. Oster houdt, 11 id., 33; Baker v. Stackpoole, 9 Cow., 420; Hall v. Clement, 41 N. H., 166. "Wright v. Laing, 8 B. & C., 165; Crookshank v. Rose, 5 Carr. & P., 19. 28 Pattison v. Hull, 9 Cow., 747; Dows v. Morewood, 10 Barb., 183; The Antarctic, Sprague, 206. To the contrary is Johnson's Appeal, 37 Penn. St., 268. People v. New York Co., 5 Cow., 331; Connecticut v. Jackson, 1 Johns. Ch., 13; French v. Kennedy, 7 Barb., 452; Williams v. Houghtaling, 3 Cow., 86. Dows v. Morewood, 10 Barb., 183; Wheeler v. Cropsey, 5 How. Pr., 288; Allen v. Culver, 3 Den., 284. "As to this point there is much controversy. The rule here stated, subject to all the preceding qualifications, is that which, as it appears to the commis. sioners, is supported by the weight of authority in this state (see Dows v. Morewood, 10 Barb., 183, 189; Pattison v. Hull, 9 Cow., 747). A payment is to be applied so as to stop the running of interest as soon as possible (Jencks v. Alexander, 11 Paige, 619). In Pennsylvania, the interest of the creditor is consulted by the court (Johnson's Appeal, 37 Penn. St., 268; Pierce v. Sweet, 33 id. 151). |