of tenement-houses.55 All such covenants must be performed in a reasonable time, or on a failure to perform an assignee of the land, after the lapse of such reasonable time, will take it discharged of the restrictions.56

A restrictive covenant may be personal only and not run with the land even in equity. Thus where it is apparent that a restriction was intended for the benefit of the grantor's immediately adjoining property, other grantees of other lots may not enforce it.57 Reservations of easements of the character denoted may be released by quitclaim of the owner of the dominant tenement.58

Covenants Running with the Land, and Connected with Estates for Years. Covenants between landlord and tenant, though not usually differentiated from covenants running with estates of inheritance,59 do stand on a better modern footing. A grantor of an estate in fee has since the Statute of Quia Emptores no reversion or reverter,60 and even though the deed contain a condition subsequent, the right of grantor and his heirs to re-enter is but a possibility of reverter.61 But even since the abolition of feudal tenures, a tenure of a lesser kind subsists between landlord and tenant, and the landlord upon a demise has a reversion62 which he may grant, devise or assign, and since the statute of 32 Hen. VIII, chap. 34,63 the assignee of such reversion enjoys all the rights of the assignor arising on covenants in a prior lease.64 By the same statute, re-enacted here, tenants under a lease, their assigns or representatives have the same right of action against the assigns of lessor for breach of covenants other than title that they had against the original lessor.65

55 Kurtz v. Potter, 44 App. Div. 262; Hurley v. Brown, id. 480; Holt v. Fleischman, 37 Misc. Rep. 172; revd., 75 App. Div. 593; Kitching v. Brown, 180 N. Y. 414; Marx v. Brogan, II App. Div. 480; cf. McClure v. Leaycraft, 97 id. 518; revd., 183 N. Y. 36; Lewis v. Ely, 100 App. Div. 252.

56 Hurley v. Brown, 44 App. Div. 480; cf. de Lima v. Mitchell, 49 Misc. 171, 175.

57 Barney v. Everard, 32 Misc. Rep. 648; Moller v. Presbyterian Hospital, 65 App. Div. 134; Fout v. Lucas, 38 Misc. Rep. 284.

58 Uihlein v. Matthews, 172 N. Y. 154; Lewis v. Ely, 100 App. Div. 252.

59 Norcross v. James, 140 Mass. at p. 191.

60 Supra, pp. 183, 198, 353; Van Rensselaer v. Ball, 19 N. Y. at p. 104; Upington v. Corrigan, 150 id. 143, 151.

61 Nicoll v. N. Y. & E. R. R. Co., 12 N. Y. at p. 133; Vail v. L. I. R. R. Co., 106 id. 283; Berenbroick v. St. Luke's Hospital, 23 App. Div. 339.

62 Burton, Compend. 147, 317; Litt., $132; Cruise, Dig., tit. I, p. 223: Saunders v. Hanes, 44 N. Y. 353, 3€1. 63 Platt, Covenants, chap. III, p. 527; and see above, pp. 756-763.

64 1 R. S. 747, § 23; Real Prop. Law, § 223.

65 Supra, pp. 756-763.

Prior to the statute 32 Hen. VIII it is the better opinion that at common law covenants ran with the land but not with the reversion.66 Covenants that ran with the land prior to 32 Hen. VIII, chap. 34, a fortiori continue to run with it. Although the words of this act are very general and taken literally would comprehend every covenant expressed in the lease, yet it is well settled that it extends only to covenants which touch and concern the thing demised, and not to collateral covenants.67 The statute 32 Henry VIII, chap. 34, was re-enacted heres and indeed it is said that the New York Revised Statutes were but a transcript.69 This being so, the construction of the original English Act has always been very potent here.70 Lord Coke conceived that under the statute 32 Hen. VIII, chap. 34, such conditions as are incident to the reversion, as rent, or as were for the benefit of the estate, as for not doing of waste, keeping the house in repair, fencing, and the like, passed with the reversion; but that a covenant to pay a sum in gross, an agreement to deliver corn, wood or the like, did not pass with it.71 So the liability of the assignee of the reversion did not extend to covenants broken before the assignment, as a covenant to build within a certain time then past.72 Nor was such assignee liable for any covenants broken after he assigned over.73 The leading English case on the subject of the running of covenants between landlord and tenant is Spencer's Case,74 and indeed it has been said that all the modern cases have been but a commentary on the seven resolutions there adopted.75

The decisions in New York bearing on covenants between landlord and tenant and which run with the land or the reversion may next be considered.76

66 Note to Spencer's Case, I Smith, Lead. Cas. 28.

Spencer's Case, 1 Smith Lead. Cas. 28; Munro v. Syracuse, Lake Shore & Northern R. R. Co., 128 App. Div. 388; and see p. 759, supra. 68 1 R. S. 747; supra, pp. 756-763; Norman v. Wells, 17 Wend. 136.

69 Norman v. Wells, 17 Wend. 136; Dolph v. White, 12 N. Y. at p. 302.

70 Ibid., supra.

71 Co. Litt. 215; Vin. Abr., tit.

Covenant, K. 3; Bacon, Abr., Covenant, E. 6; Webb v. Russell, 3 Term Rep. 393.

72 Griscott v. Green, 1 Salk. 199; St. Saviours Southwark v. Smith, 3 Burr. 1271; 1 Black, 351; s. p., Tillotson v. Boyd, 4 Sandf. 516.

73 Boulton v. Canon, 1 Freem. 336. 745 Co. 16b; 1 Smith, Lead Cas. 75 Norman v. Wells, 17 Wend, at P. 147.

76 And see generally on this head, Chaplin, Landl. & Ten, 272 seq.

Rent. A covenant to pay rent runs with the land and passes with the reversion, but assignees of a term are liable for the rent only while in actual possession.78

Repairs. The contract of a landlord to repair the demised premises does not inure to a stranger,79 but it runs with the reversion so as to bind a grantee of the reversion. So a covenant to repair the demised premises runs with the land so as to bind an assignee of the tenant,81 and it runs or passes to a grantee of the reversion.82

To Erect Buildings and Pay for Same. A covenant to pay for buildings erected by tenant runs with the reversion, and the right to enforce it runs with the land and inures to the assignee of the term.83 But when the covenant concerns a thing not in esse, heirs and assigns of covenantor are not bound unless expressly named.84 Taxes, Assessments. A covenant to pay taxes or assessments runs with the land and binds an assignee of the term.85

Covenants for Renewal. Covenants for renewal in a lease run with the land,86 even if the lease is renewable forever.87

In short, an

Assignee of Land Liable for all but Personal Covenants. assignee of the land is liable for all covenants in the lease which are not personal or collateral.88 A covenant relating to a thing not

77 Van Wicklen V. Paulson, 14 Barb. 654; Tate v. Neaky, 52 App. Div. 78, 80; Broadwell v. Banks, 134 Fed. Rep. 470.

78 Dolph v. White, 12 N. Y. 296, 300; Durand v. Curtis, 57 id. 7; Demarest v. Willard, 8 Cow. 206; 'Stone v. Auerbach, 117 N. Y. Supp. 734.

79 Sterger v. Van Sicklen, 132 N. Y. 499.

80 Allen v. Culver, 3 Den. 284; Norman v. Wells, 17 Wend. 136, 148; Mott v. Oppenheimer, 135 N. Y. 312; Silberberg v. Tracktenburg, 109 N. Y. Supp. 814; s. c., 58 Misc. Rep. 536.

81 Allen v. Culver, 3 Den. 284, 296; Demarest v. Willard, 8 Cow. 206; Jacques v. Short, 20 Barb. 269; Holsman v. De Gray, 6 Abb. Pr. 79; Myers v. Burns, 33 Barb. 401.

82 Lehmaier Div. 495.

v. Jones, 100 App.

83 Schoelkopf v. Coatsworth, 166 N. Y. 77; Douglaston Realty Co. v. Hess, 124 App. Div. 508; cf. Matter of Henshaw, 37 Misc. Rep. 536.

84 Ovington Brothers v. Henshaw, 47 Misc. Rep. 167; Schwenker v. Picken, 91 App. Div. 367; Crawford v. Krollpfeiffer, 122 id. 848; Douglaston Realty Co. v. Hess. 124 id. 508, 510.

85 Martin v. O'Conner, 43 Barb. 514; Post v. Kearney, 2 N. Y. 394; Lehmaier v. Jones, 100 App. Div. 495; Stone v. Auerbach, 117 N. Y. Supp. 734.

86 Downing v. Jones, 11 Daly, 245; Wilkinson v. Petit, 47 Barb. 230; Robinson v. Beard, 140 N. Y. 107. 87 See pp. 162, 312, supra, and Broadwell v. Banks, 134 Fed. Rep.

470.

88 Dolph v. White, 12 N. Y. 296,

301.

in esse but to be done on the land, does not bind the assignee of the term unless he is named in the covenant.89 But it seems that though not named he may be constructively bound.90

Right to Demand a Sum Certain on Surrender. The right to demand from the landlord a sum certain on condition of tenant's surrender of land runs with the land.91 So a covenant to surrender premises in good condition,92 but not one to return money deposited as security for rent.93

£4

Restrictive Covenant is an Incumbrance. A restrictive covenant is an incumbrance, and unless disclosed in a contract of sale renders a title not a "marketable title" such as a seller is ordinarily bound to convey. Unless the instrument containing such a covenant is recorded, a subsequent purchaser, without actual notice, takes the land discharged of the restriction, and the mere existence of a party wall may not be actual notice.95 Restrictive covenants are always to be strictly construed, so as not to extend their import.9

96

Covenants May Run with Incorporeal Hereditaments. How far the burden and advantage of covenants run upon devolutions or transfers of title to incorporeal hereditaments may be regarded as doubtful. But in America it is said that covenants may run with incorporeal as well as corporeal hereditaments.97

89 Tallman v. Coffin, 4 N. Y. 134; Coffin v. Talman, 8 id. 465; Johnston v. Bates, 48 N. Y. Super. Ct. 180; Ovington Brothers v. Henshaw, 47 Misc. Rep. 167; Tobey v. Mattimore, 54 id. 231.

Conlen v. Rizer, 109 id. 537; de Lima v. Mitchell, 49 Misc. Rep. 171; Oppenheimer v. Knepper Realty Co., 50 id. 186; Dieterlen v. Miller, 114 App. Div. 40; Goodrich v. Pratt, id. 771; Altmann v. McMillan, 115 id. 235;

90 Matter of Coatsworth, 37 App.. Hein v. Schwoerer, id. 295; Eckel v. Div. 295, 303.

Spitzer, 58 Misc. Rep. 467; cf. Korn v. Campbell, 192 N. Y. 490.

95 Brower v. Williams, 44 App. Div. 337; cf. a case in England in 1905, In re Nesbitt v. Pott's Contract, 53 Wr. 297; 4 L. J. R. 310; Korn v. Campbell, 119 App. Div. 401.

96 Clark v. Jammes, 87 Hun, 215; McDonald v. Spang, 55 Misc. Rep. 332; cf. Freer v. Glen Springs Sanitarium Co., 131 App. Div. 352.

97 Van Rensselaer v. Read, 26 N. Y. 558, 577; 2 Col. Law Rev. 555.

§ 259. When contract to lease or sell void. A contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is void, unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the lessor or grantor, or by his lawfully authorized agent.

Formerly section 224, Real Property Law of 1896, chapter XLVI, General Laws:

§ 224. When contract to lease or sell void. A contract for the leasing for a longer period than one year, or for the sale of any real property, or an interest therein, is void, unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the lessor or grantor, or by his lawfully authorized agent.98

Section 224 was formerly 2 Revised Statutes, 135, sections 8, 9:

§ 8. Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party, by whom the lease or sale is to be made.9

§ 9. Every instrument required to be subscribed by any party, under the last preceding section, may be subscribed by the agent of such party lawfully authorized.1

Statute of Frauds. There is abundant proof that the English Statute of Frauds,2 which first made written proof indispensable to certain contracts and conveyances, was adopted as part of the law of the Province of New York, although that statute was passed after the province had a settled form of government of its own.3 At the time of the general re-enactment and revision of the great English Statutes extending to New York and adopted by the first Constitution of the State, the English Statute of Frauds was reenacted in the great revision of the statutes by Jones and Varick in 1787, and thence, through various revisions, passed into t Revised Statutes.5

98 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, 8 460. 99 Repealed, chap. 547, Laws of 1896.

1 Repealed, chap. 547, Laws of 1895.

2 29 Car. II, ch: p. 3.

3 Preamble to chap. 1678, 5 Colonial Laws of N. Y. 689; Cahill Iron Works v. Pemberton, 30 Abb. N. C. 450, 454; Fowler, Pers. Prop. Law, pp. 133-137, and cases there cited. 42 J. & V. 88.

5 Supra, pp. 802, 804.