been previously discussed, and accordingly call for consideration in this connection.

That covenants run in favor of or against the owner of an estate for life or for years, or of the reversion expectant on such estate, is determined, or at least confirmed, by the provisions of the statute of 32 Hen. VIII, c. 34. The terms and effect of this statute having been already considered,1 the running of covenants made by or with the owner of land in fee simple will alone be here discussed.

These questions of the assignment of contractual benefits or liabilities by the transfer of land have always been considered in connection with "covenants," strictly so called,that is, contracts under seal; it being assumed, apparently without any judicial determination of the question, that a contract not under seal could not run with the land. The reason for this no doubt lies in the fact that formerly all written instruments were under seal; and even at the present day, owing to the necessity which exists in most jurisdictions that conveyances of land be under seal,2 and to the fact that agreements in regard to the use or enjoyment of land are rarely found except in such conveyances, questions as to the running of agreements not under seal are not likely to arise.

In the case of a deed poll,—that is, an instrument sealed by one only of the parties thereto,-a stipulation therein on the part of the person not sealing it is, by the weight of authority, regarded as the covenant of such person by reason of his acceptance of the conveyance, though there are well-con

That a contract not under seal will not run with the land, see Martin v. Drinan, 128 Mass. 515; Kennedy v. Owen, 136 Mass. 199; Poage v. Wabash, St. L. & P. Ry. Co., 24 Mo. App. 199. But see Burbank v. Pillsbury, 48 N. H. 475.

4 Co. Litt. 230b, Butler's note; Sheppard's Touchstone, 177; Finley v. Simpson, 22 N. J. Law, 311, 53 Am. Dec. 252; Hagerty v. Lee,

6

sidered opinions to the contrary. In order to create a covenant, neither the word "covenant," nor any other particular word, is necessary, and words of condition are frequently, as before stated, construed as words of covenant.7 Moreover, words of covenant have been sometimes construed as creating, not a covenant, but an easement, or a charge on the land in the nature of a lien.9

343. The running of benefits.

8

That the right to sue upon a covenant relating to land will pass to subsequent owners of the land, claiming under the covenantee, is generally conceded.10 Such a covenant is usu

54 N. J. Law, 580; Midland Ry. Co. v. Fisher, 125 Ind. 19, 21 Am. St. Rep. 189; Bowen v. Beck, 94 N. Y. 86, 46 Am. Rep. 124; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35, 13 Am. Rep. 556; Burnett v.. Lynch, 5 Barn. & C. 596; Kentucky Cent. R. Co. v. Kenney, 82 Ky. 154 (semble); Poage v. Wabash, St. L. & P. Ry. Co., 24 Mo. App. 199; Maynard v. Moore, 76 N. C. 158 (semble); Hickey v. Lake Shore & M. S. Ry. Co., 51 Ohio St. 40, 46 Am. St. Rep. 545. And see cases cited in Sims, Covenants, 190-194.

Platt, Covenants, 10; Maine v. Cumston, 98 Mass. 317, 2 Gray's Cas. 459; Parish v. Whitney, 3 Gray (Mass.) 516; Martin v. Drinan, 128 Mass. 515; Kennedy v. Owen, 136 Mass. 199; Maule v. Weaver, 7 Pa. St. 329; Hinsdale v. Humphrey, 15 Conn. 431; Trustees v. Spencer, 7 Ohio, 493; Johnston v. Muzzey, 45 Vt. 419, 12 Am. Rep. 214.

• Platt, Covenants, 28; Hartung v. Witte, 59 Wis. 285; Midgett v. Brooks, 34 N. C. 145, 55 Am. Dec. 405; Taylor v. Preston, 79 Pa. St. 436; Trull v. Eastman, 3 Metc. (Mass.) 121; Electric City Land & Improvement Co. v. West Ridge Coal Co., 187 Pa. St. 500.

7 See ante, § 68.

8 See ante, § 315.

• Fresno Canal & Irrigation Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112; Howard Mfg. Co. v. Water Lot Co., 53 Ga. 689; Martin v. Martin, 44 Kan. 295; Goudy v. Goudy, Wright (Ohio) 410.

10 Pollock, Contracts (6th Ed.) 224; Sims, Covenants, 136; Sterling Hydraulic Co. v. Williams, 66 Ill. 393; Raby v. Reeves, 112 N. C. 688; Peden v. Chicago, R. I. & P. Ry. Co., 73 Iowa, 328, 5 Am. St Rep. 680; National Union Bank at Dover v. Segur, 39 N. J. Law, 173, 2 Gray's Cas. 468; Gaines' Adm'x v. Poor, 3 Metc. (Ky.) 503, 79 Am. Dec. 559; St. Louis, I. M. & S. Ry. Co. v. O'Baugh, 49 Ark. 418.

ally made by the grantor or grantee of land as an incident of the conveyance, that is, by one who has some relation to the title. The question has, however, occasionally arisen whether one who is neither a grantor nor grantee of the land may make a covenant with the owner thereof, the benefit of which will pass to a subsequent owner of the land,—that is, whether the benefit of a covenant may run, though there is no "privity of estate" between the covenantor and covenantee. The authorities are about equally divided upon the question.11

§ 344. The running of burdens.

In England it is apparently the law that the burden of a covenant by the owner of land in fee simple, made with one other than his lessee, will not run so as to be enforceable against a transferee of the land.12 In this country, on the other hand, there are a number of decisions to the effect that covenants by the owner of land will bind transferees of the land,13

11 That the benefit will pass with the land in such case, see Pollock, Contracts (6th Ed.) 224, note; Holmes, The Common Law, 405; Shaber v. St. Paul Water Co., 30 Minn. 179; Dickinson v. Hoomes' Adm'r, 8 Grat. (Va.) 353 (dictum); Gaines' Adm'x v. Poor, 3 Metc. (Ky.) 503, 79 Am. Dec. 559; Rawle, Covenants, § 203, note. The contrary view is taken in Sims, Covenants Running with the Land, 196; Sugden, Vendors (14th Ed.) 581 et seq.; Mygatt v. Coe, 124 N. Y. 212, 147 N. Y. 456; Lyon v. Parker, 45 Me. 474, 2 Gray's Cas. 457; Hurd v. Curtis, 19 Pick. (Mass.) 459 (dictum). Packenham's Case, Y. B. 42 Edw. III. 3, pl. 14 (translated in 2 Gray's Cas. 439), is cited on both sides of the discussion,-a not unnatural result of the obscurity of the report.

12 Pollock, Contracts (6th Ed.) 225; 1 Smith, Lead. Cas. Eq. (10th Ed.) 75-85. See Brewster v. Kidgill, 12 Mod. 166; Brewster ▼. Kitchin, 1 Ld. Raym. 317; Keppel v. Bailey, 2 Mylne & K. 517; Austerberry v. Corporation of Oldham, 29 Ch. Div. 750, 2 Gray's Cas. 441, note.

18 Georgia Southern R. Co. v. Reeves, 64 Ga. 492; Robbins v. Webb, 68 Ala. 393; Gilmer v. Mobile & M. Ry. Co., 79 Ala. 569; Hottell ▼. Farmers' Protective Ass'n, 25 Colo. 67: Dorsey v. St. Louis, A.

though in a few states the English view appears to have been adopted.14 The fact that the burden of a covenant passes to the transferee should not, it would seem, relieve the original covenantor from liability thereon, the same principle be

T. H. R. Co., 58 Ill. 65; Fitch v. Johnson, 104 Ill. 111; Conduit v. Ross, 102 Ind. 166, 2 Gray's Cas. 474; Hazlett v. Sinclair, 76 Ind. 488, 40 Am. Rep. 254; De Logny's Heirs v. Mercer, 43 La. Ann. 205 (semble); Sutton v. Head, 86 Ky. 156; Hickey v. Lake Shore & M. S. Ry. Co., 51 Ohio St. 40 (dictum); Huston v. Cincinnati & Z. R. Co., 21 Ohio St. 236; Easter v. Little Miami R. Co., 14 Ohio St. 48 (dictum); Pittsburg, C. & St. L. Ry. Co. v. Bosworth, 46 Ohio St. 81 (dictum); Phoenix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400 (dictum); Dey v. Prentice, 90 Hun (N. Y.) 27; Dexter v. Beard, 130 N. Y. 549; Denman v. Prince, 40 Barb. (N. Y.) 213; St. Andrew's Church's Appeals, 67 Pa. St. 512; Electric City Land & Improvement Co. v. West Ridge Coal Co., 187 Pa. St. 500; Landell v. Hamilton, 175 Pa. St. 327; Wooliscroft v. Norton, 15 Wis. 198; Crawford v. Witherbee, 77 Wis. 419. See, also, the decisions in notes 25-29, infra, to the effect that the burden will run when the covenant is made in connection with the grant of an easement.

14 West Virginia Transportation Co. v. Ohio River Pipe Line Co., 22 W. Va. 600; Brewer v. Marshall, 18 N. J. Eq. 337, 19 N. J. Eq. 537 (dictum); Tardy v. Creasy, 81 Va. 553, 59 Am. Rep. 676; Costigan v. Pennsylvania R. Co., 54 N. J. Law, 233; Lynn v. Mount Savage Iron Co., 34 Md. 603 (semble).

In Massachusetts, apart from the cases of landlord and tenant, the burden of a covenant will not run with the land, as a general rule, unless "the covenant either creates a servitude or a restriction in the nature of a servitude in favor of a neighboring parcel, or else is in some way incident to and inseparable from such a servitude; or, if attached to the dominant estate, appears to be the quid pro quo for the easement enjoyed." Holmes, C. J., in Lincoln v. Burrage, 177 Mass. 378. Compare Norcross v. James, 140 Mass. 188, 2 Gray's Cas. 511, Morse v. Aldrich, 19 Pick. (Mass.) 449, 2 Gray's Cas. 446, and Bronson v. Coffin, 108 Mass. 175, 118 Mass. 156, 11 Am. Rep. 335, 2 Gray's Cas. 328, which seem to favor the running of the burden. The later decisions in this state upon this subject, especially those in which the opinion of the court is delivered by Holmes, C. J., are generally in accord with the views expounded by that learned jurist in his work on The Common Law, pp. 392-406.

(753)

ing applicable as in the case of landlord and tenant. 15 ferent view has, however, occasionally been taken.16

345. Privity of estate.

A dif

In order that the burden of a covenant run with the land, there must be, it is generally stated, a "privity of estate" between the covenantor and covenantee.17 This expression, as used in connection with covenants running with estates in fee simple, refers apparently to the relation between the grantor and grantee of such an estate at the time of the conveyance. In other words, in order that there be such privity of estate that the burden of a covenant may run, the covenant must be entered into at the time of the making of a conveyance by the covenantee to the covenantor, or vice versa.18 Privity exists accordingly, it seems, in the case of

15 See ante, § 46.

10 Carr v. Lowry's Adm'x, 27 Pa. St. 257; Hickey v. Lake Shore & M. S. Ry. Co., 51 Ohio St. 40.

17 Cole v. Hughes, 54 N. Y. 444, 2 Gray's Cas. 465; Nye v. Hoyle, 120 N. Y. 195; Lyon v. Parker, 45 Me. 474, 2 Gray's Cas. 457; Sharp v. Cheatham, 88 Mo. 498; Town of Middletown v. Newport Hospital, 16 R. I. 319; Spence v. Mobile & M. Ry. Co., 79 Ala. 576; Wheeler v. Schad, 7 Nev. 204; Easter v. Little Miami R. Co., 14 Ohio St. 48; Hurd v. Curtis, 19 Pick. (Mass.) 459, 2 Gray's Cas. 449; Morse v. Aldrich, 19 Pick. (Mass.) 449; Bronson v. Coffin, 108 Mass. 175, 118 Mass. 156, 11 Am. Rep. 335, 2 Gray's Cas. 328; Hazlett v. Sinclair, 76 Ind. 488, 40 Am. Rep. 254; Webb v. Russell, 3 Term R. 402.

18 Gilmer v. Mobile & M. Ry. Co., 79 Ala. 569; Denman v. Prince. 40 Barb. (N. Y.) 213; Harsha v. Reid, 45 N. Y. 415; Lawrence v. Whitney, 115 N. Y. 410; Fresno Canal & Irrigation Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112; Binbank v. Pillsbury, 48 N. H. 475; Indianapolis Water Co. v. Nulte, 126 Ind. 373; Conduitt v. Ross, 102 Ind. 166, 2 Gray's Cas. 474; Hazlett v. Sinclair, 76 Ind. 488, 40 Am. Rep. 254 (semble); Smith v. Kelley, 56 Me. 64.

In Norcross v. James, 140 Mass. 188, 2 Gray's Cas. 511, it is said by Holmes, J., in delivering the opinion of the court, that the state ment that there must be "privity of estate between the covenantor and the covenantee, only means that the covenant must impose such a