holding under him that they would be restrained from violating the agreement. And Platt, in his work above cited, seems to concede that a court of equity might enforce against a grantee a covenant contained in a deed poll, although an action of covenant could not be maintained": Atlantic Dock Co. v. Leavitt, 54 N. Y. 35, 13 Am. Rep. 556.

m. Criticism of Exceptions.-The supreme court of Connecticut has criticised the exceptions to the general rule in its decision in the case of Hinsdale v. Humphrey, 15 Conn. 431. This criticism will be found on page 27 of this note. The supreme court of Pennsylvania bas also criticised the exceptions to the general rule, which criticism will be found in the extract from Maule v. Weaver, 7 Pa. 329; ante, p. 357.

IV. Effect of the Abolition of Distinction Between Sealed and Unsealed Instruments.

In many of the states all distinction between sealed and unsealed instruments has been abolished by statute, except in case of corporate seals: Dyer v. Gill, 32 Ark. 410; Ortman v. Dixon, 13 Cal. 34; Edwards v. Dillon, 147 Ill. 14, 37 Am. St. Rep. 199, 35 N. E. 135; Williams v. Haines, 27 Iowa, 251, 1 Am. Rep. 268; Gibbs v. McGuire, 70 Miss. 646, 12 South. 829; Landauer v. Sioux Falls Imp. Co., 10 S. D. 205, 72 N. W. 467; Garrett v. Belmont Land Co., 94 Tenn. 459, 29 8. W. 726; Murray v. Beal, 23 Utah, 548, 65 Pac. 727. In these states, therefore, the question of the common-law liability of a grantee under a deed poll, or under any other sealed instrument, cannot arise as that of a covenantor. His liability will be in an action of debt, in an action of assumpsit, or on an implied contract.

V. Liability of Grantee on Real Covenants.

a. In General.-A grantee or covenantee, under a covenant running with and restricting the use of land, or imposing burdens upon it, is bound by it, and may be sued for its breach: Stanislaus Water Co. v. Bachman, 152 Cal. 716, 93 Pac. 858, 15 L. R. A., N. S., 359; Perkins Mfg. Co. v. Williams, 98 Ga. 388, 25 S. E. 556; Walker v. Kesner, 86 Ill. App. 244; Hardy v. Pecot, 113 La. 350, 36 South. 992; Commercial Wharf Co. v. Winsor, 146 Mass. 559, 16 N. E. 560; Morse v. Aldrich, 42 Mass. (1 Met.) 544; Poage v. Wabash etc. R. Co., 24 Mo. App. 199; Burbank v. Pillsbury, 48 N. H. 475, 97 Am. Dec. 633; Bridgewater v. Ocean City R. Co., 62 N. J. Eq, 276, 49 Atl. 801, 63 N. J. Eq. 798, 52 Atl. 1130; Armstrong v. Wheeler, 9 Cow. (N. Y.) 88; Trotter v. Hughes, 12 N. Y. 74, 62 Am. Dec. 137; Haywood Homestead Tract Assn. v. Miller, 26 N. Y. Supp. 1091, 6 Misc. Rep. 254; Trustees of Columbia College v. Thacher, 87 N. Y. 311, 41 Am. Rep. 365; Hodge v. Sloan, 107 N. Y. 244, 1 Am. St. Rep. 816, 17 N. E. 335; Phoenix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400; Birdsall v. Tieman, 12 How. Pr. 551; Astor v. Hoyt, 5 Wend. (N. Y.) 604; Van Horne v. Crain, 1 Paige (N. Y.), 455; Astor v. Miller, 2 Paige Am. St. Rep., Vol. 126-24

(N. Y.), 68; Tillotson v. Boyd, 4 Sand. (N. Y.) 516; Mygatt v. Coe, 42 N. Y. Supp. 734; Hickey v. Lake Shore etc. R. Co., 51 Ohio St. 40, 46 Am. St. Rep. 545, 36 N. E. 672, 23 L. R. A. 396; West Virginia etc. R. R. Co. v. McIntire, 44 W. Va. 210, 28 S. E. 686.

In Perkins Mfg. Co. v. Williams, 98 Ga. 388, 25 S. E. 556, the court held that the grantee was not responsible for the acts of the third person to whom the grantee had leased the land under the same conditions that the grantee himself held it. In Walker v. Kesner, 86 Ill. App. 244, the court said in substance: "The tendency of our courts is toward a greater liberality in matters of pleading, in order that substantial justice may be speedily done; but they have not as yet so far departed from the common-law rules of pleadings as to permit a recovery by covenant under the declaration which sets up a breach of implied warranty or a tort: Walker v. Kesner, 86 Ill. App. 244. And in Empire Bridge Co. v. Larkin Soap Co., 109 N. Y. Supp. 1062, 59 Misc. Rep. 46, it is said that, "Where one grants a parcel of land to which there is no access from the highway save one over the lands retained by the grantor, and in the grant covenants that he will provide a right of way to the highway by laying out and dedicating for public use a street or streets to form such right of way, such covenant is enforceable by and against subsequent purchasers from the parties, though the grantor did not expressly covenant except for himself."

A grantee under a deed poll containing covenants running with the land binding himself and heirs, who enters into possession of the estate conveyed is not liable for a breach occurring after he has sold the same to a subsequent grantee: Hickey v. Lake Shore etc. R. R. Co., 51 Ohio St. 40, 46 Am. St. Rep. 545, 36 N. E. 672, 23 L. R. A. 396; Poage v. Wabash etc. R. Co., 24 Mo. App. 199; Kellogg v. Robinson, 6 Vt. 276, 27 Am. Dec. 550.

b. Covenants Restricting Building or the Use of Buildings bind grantees who take with notice of the extent and nature of the restrictions: Wahl v. Stoy (N. J.), 66 Atl. 176; Brigham v. H. G. Mulock Co. (N. J.), 70 Atl. 185; Leaver v. Gorman (N. J.), 67 Atl. 111; Newbery v. Barkalow (N. J.), 71 Atl. 752; McNichol v. Townsend (N. J.), 70 Atl. 965; Francis v. Ziering, 112 N. Y. Supp. 647; Haywood Homestead Tract Assn. v. Miller, 26 N. Y. Supp. 1091, 6 Misc. Rep. 254; O'Connor v. Bauer, 111 N. Y. Supp. 869, 127 App. Div. 854; Clark v. Devoe, 124 N. Y. 124, 21 Am. St. Rep. 652, 26 N. E. 275. See, on this subject the note to Wakefield v. Van Tassell, 95 Am. St. Rep. 215. Equity will restrain the violation of a covenant entered into by grantee, restrictive of the use of lands conveyed, not only against the grantee covenantor, but also against all subsequent purchasers with notice of the covenant, whether it run with the land or not: Leaver v. Gorman (N. J.), 67 Atl. 111; Brigham v. H. G. Mulock Co., 70 Atl. (N. J.) 185.

C. Covenants in Restraint of Trade or in Use of Property.-Every owner of real property has the right to deal with it so as to restrain

its use by his grantees so long as the restriction is made reasonable, with a due regard to public policy, and without creating an unlawful restraint on trade. Conditions and restrictions in a deed inserted with a view to assert this right by forbidding the use of the property for objectionable trades, businesses and purposes, have been often upheld: See the note to Wakefield v. Van Tassell, 95 Am. St. Rep. 221. Where a grantee binds himself by a covenant in his deed, limiting the use of the land purchased in a particular manner so as not to interfere with the trade or business of the grantor, and the covenant is valid as between the parties, it is also binding upon and may be enforced against a grantee of the covenantor, taking title with notice of the restriction; and this, although the assignees of the covenantor are not mentioned or referred to. It is not necessary that the covenant should be one technically running with the land; it is sufficient that the purchaser has notice of it: Hodge v. Sloan, 107 N. Y. 244, 1 Am. St. Rep. 816, 17 N. E. 335. For other authorities in support of this proposition, see Judd v. Robinson, 41 Colo. 222, 124 Am. St. Rep. 128, 92 Pac. 724; Taylor v. Owen, 2 Blackf. (Ind.) 301, 20 Am. Dec. 115; Mayor etc. of City of Baltimore v. Garrett (Md.), 69 Atl. 429; Hisey v. Eastminster Presbyterian Church, 130 Mo. App. 566, 109 S. W. 60; Leaver v. Gorman (N. J.), 67 Atl. 111; Trustees Columbia College v. Thacher, 87 N. Y. 311, 45 Am. Rep. 365.

d. On Covenants Against Nuisances.-Covenants in a deed against nuisances on the premises create easements for the benefit of other respective land owners; it is unnecessary to insert them in subsequent conveyances to bind subsequent grantees: Birdsall v. Tieman, 12 How. Pr. (N. Y.) 551; Barrow v. Richard, 8 Paige (N. Y.), 351. Where such covenants have been inserted in a deed by an original owner, a subsequent grantee, or his lessee, whose conveyances contain no such covenants, may be perpetually restrained by injunction from erecting a steam engine on the premises: Birdsall v. Tieman, 12 How. Pr. (N. Y.) 551.

e. Liability of a Husband on Wife's Covenants.-Husband is liable on covenants in his wife's deed in which he joins: Mygatt v. Coe, 12 App. Div. 245, 42 N. Y. Supp. 734, 20 N. Y. Supp. 748, 44 Hun, 31, 31 N. Y. Supp. 1130, 142 N. Y. 78, 36 N. E. 870, 24 L. R. A. 850, 147 N. Y. 456, 42 N. E. 17, 124 N. Y. 212, 26 N. E. 611, 11 L. R. A. 646.

f. Liability of Wife on Husband's Covenants.-Where a wife joins with her husband in a lease of her lands, with covenants of quiet enjoyment, her heirs and devisees are not answerable after her death for any breach thereof-this for the reason that being a married woman she would not, while living, be bound: Foster v. Wilcox, 10 R. I. 443, 14 Am. Rep. 698.

g. Liability for Acts of Third Person.-A grantee is not liable for the acts of a third party: Perkins Mfg. Co. v. Williams, 98 Ga. 388, 5. E. 556; Tillotson v. Boyd, 4 Sand. (N. Y.) 516; Astor v. Hoyt,

5 Wend. (N. Y.) 604; Astor v. Miller, 2 Paige (N. Y.), 68. In Georgia the court holds that the grantee was not liable for the acts of a third person to whom the grantee had leased the land under the same condi tions that the grantee himself held it: Perkins Mfg. Co. v. Williams, 98 Ga. 388, 25 S. E. 556. On the same principles the courts of New York hold that the assignee of a lessee, or the grantee of an estate, is not liable for breaches of covenants running with the land, which were committed by those who have preceded him in the enjoyment of the estate: Tillotson v. Boyd, 4 Sand. (N. Y.) 516. In the case of Astor v. Miller, 2 Paige (N. Y.), 68, the court holds that “A mortgagee of leasehold premises who has never been in possession, or in the receipt of the profits of the estate, is not liable to an action upon the covenants contained in the lease, as the assignee thereof."

h. Liability of Subsequent Grantees. It is not necessary that a covenant between grantor and grantee should be one technically running with the land to be enforceable against a subsequent grantee, it being sufficient that he has notice of it: Andrews v. McCoy, 8 Ala. 920, 42 Am. Dec. 669; Morse v. Aldrich, 42 Mass. (1 Met.) 544; Stevens v. Annex Realty Co., 173 Mo. 511, 73 S. W. 505; Poage v. Wabash St. L. Ry. Co., 24 Mo. App. 199; Russell v. Pistor, 7 N. Y. (3 Seld.) 171, 57 Am. Dec. 509; Maurer v. Friedman, 125 App. Div. 754, 110 N. Y. Supp. 320; Birdsall v. Tieman, 12 How. Pr. (N. Y.) 551; Phoenix Ins. Co. v. Continental Ins. Co., 14 Abb. Pr. (N. Y.) 266; Bald Eagle Valley Ry. Co. v. Nittany Valley Co., 171 Pa. 284, 50 Am. St. Rep. 807, 33 Atl. 239, 37 Week. Not. Cas. 89, 29 L. R. A. 423.

1. Liability of Grantee as Bona Fide Purchaser.-A purchaser of land is presumed to investigate his title, and where any defect or restriction or covenant appears in the recorded chain of title, it is sufficient to charge him with notice: Daughaday v. Paine, 6 Minn. (304) 443; Maurer v. Friedman, 125 App. Div. 754, 110 N. Y. Supp. 320. It is held in Minnesota that it is crassa negligentia for the purchaser to rely solely upon an abstract of title without an examination of the title deeds; neither does the fact that this is the usual custom of the country raise any equity in his favor: Daughaday v. Paine, 6 Minn. (304), 443.

j. Liability of Grantee Pro Tanto.-A grantee, as part owner of estate, is liable pro tanto for the breach of the covenants contained in the deed conveying same: Astor v. Hoyt, 5 Wend. (N. Y.) 603; Astor v. Miller, 2 Paige (N. Y.), 68.

a.

VI. Liability of Grantee on Personal Covenants.

In General. Only the covenantor or his executors or administrators are bound on a personal covenant: Maynard v. Polhemus, 74 Cal. 141, 15 Pac. 451; Gould v. Stanton, 16 Conn. 12; Kytle v. Kytle, 128 Ga. 387, 57 S. E. 748; Wood v. Wood, 58 Ky. (1 Met.) 512; Sullivan v. Carberry, 67 Me. 531; Pyle v. Gross, 92 Md. 132, 48 Atl. 713; Stanton . Sauk Rapids Co., 74 Minn. 286, 77 N. W. 1; Van Doren v. Robinson, 16 N. J. Eq. 256; Houston v. Zahm, 44 Or. 610, 76 Pac. 641, 65 L. R. A. 799. A mere personal covenant, not running with the land

nor binding the alienee, will be enforced against the alienee in equity only where he is chargeable with notice of the contract: Van Doren v. Robinson, 16 N. J. Eq. 256. In Pyle v. Gross, 92 Md. 132, 48 Atl. 713, the supreme court of Maryland held that a married woman's inchoate right of dower is a mere chose in action, and the fact that she joins with her husband in signing a deed containing a covenant of warranty in order to release her right of dower in the estate conveyed, the property not relating to her separate estate either real or personal, does not make her liable for a breach of the covenant.

b. Liability of a Lessee.—An action of covenant for rent will not lie against a lessee where the lease is a deed poll, signed by the lessor only, although the lessee may have accepted the lease, and occupied and held under it during his full term, without paying the rent reserved; in other words, the lessee is not liable if he has not sealed and signed the lease: Hinsdale v. Humphrey, 15 Conn. 431; Trustees of Hocking County v. Spencer, 7 Ohio (pt. 2), 149; Johnson v. Muzzy, 45 Vt. 419, 12 Am. Rep. 214.

c. Liability in Equity of Assignee with Notice.-Although not bound at law on personal covenants, assignees who have taken with notice may be held liable in equity: Van Doren v. Robinson, 16 N. J. Eq. 256.

d. Liability of Assignee for Covenants Broken While not a Legal Assignee: Astor v. Hoyt, 5 Wend. (N. Y.) 603; Armstrong v. Wheeler, 9 Cow. (N. Y.) 88; Hurley v. Brown, 60 N. Y. Supp. 846; Tillotson v. Boyd, 4 Sand. (N. Y.) 516; St. Saviour's Churchward v. Smith, 3 Burr. 1271.

VII. Privity of Estate and Contract.

To bind a grantee, there must be either privity of estate or of contract between the parties-i. e., between the original grantee and the grantee of the first covenantee: Allen v. Greene, 19 Ala. 34; St. Louis etc. Ry. Co. v. O'Baugh, 49 Ark. 418, 5 S. W. 711; Ross v. Turner, 7 Ark. 132, 44 Am. Dec. 531; Fresno Canal etc. Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112, 22 Pac. 53; Waycross Air Line Co. v. Southern Pine Co., 115 Ga. 7, 41 S. E. 271; Tucker v. McArthur, 103 Ga. 409, 30 S. E. 283; Dalton v. Taliaferro, 101 Ill. App. 592; Keegan v. O'Callaghan, 35 Ill. App. 142; Conduitt v. Ross, 102 Ind. 166, 26 N. E. 198; Indianapolis Water Co. v. Nulte, 126 Ind. 373, 26 N. E. 72; Hazlett v. Sinclair, 76 Ind. 488, 40 Am. Rep. 254; Barkley v. Steers, 47 La. Ann. 951, 17 South. 438; Smith v. Kelley, 56 Me. 64; Pyle v. Gross, 92 Md. 132, 48 Atl. 713; Dawson v. Western Maryland R. R. Co., 107 Md. 70, 68 Atl. 301; Norcross v. James, 140 Mass. 188, 2 N. E. 946; Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep. 335; Bickford v. Page, 2 Mass. 455; Mason v. Kellogg, 38 Mich. 132; Kettle River R. Co. v. Eastern R. Co., 41 Minn. 461, 43 N. W. 4C9, 6 L. R. A. 111; Miller v. Noonan, 83 Mo. 343, affirming 12 Mo. App. 370; Wheeler v. Schad, 7 Nev. 204; Burbank v. Pillsbury, 48 N. H. 475, 97 Am. Dec. 633; Costigan v. Pennsylvania R. Co., 54 N. J. L. 233, 23 Atl. 810; Trustees Columbia College v. Lynch, 70 N. Y. 440, 26 Am.