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The distinction as to the course in which real and personal covenants go to the representatives of the person with whom the covenants are made, Le Blanc, J. observes, is a clear one; "real covenants run with the land and either go to the assignee of the land or descend to the heir, and must be taken advantage of by him alone; but personal covenants must be sued for by the executor" or administrator. 1 M. & S. 365.
3. On a real covenant, heir had a right of action at common law.
It is extremely well settled at common law, without referring to the statute of 32 H. 8, ch. 34, that covenants which run with the land will pass to the person to whom the land descends. Ld. Kenyon, C. J. in Webb v. Russell, 3 T. R. 401.
According to Fitzherbert, if a man make a covenant by deed to another and his heirs to enfeoff him and his heirs, and will not do it, and the covenantee dieth, his heir shall have a writ of covenant upon that deed; and also his assignees shall have a writ of covenant where the covenant is made to him and his assigns. Fitz. N. B. 341,  C.; Shep. Touch. 171; Wootton v. Cooke, Dyer 217, (337); Anders. 53.
An heir sued an executor upon his testator's covenant in a lease and release to do all reasonable acts for the farther conveyance of premises which, upon the covenantee's death, descended from him to the plaintiff. The ancestor had required the vendor to perform his covenant, but had not sued him instantaneously for his neglect; waiting for the event. The ultimate damage was not sustained in the ancestor's lifetime; but after his death the heir was evicted. It was considered that the covenant run with the land, and that the heir had a right of action. King v. Jones &c. 1 Marsh. 107; 5 Taunt. 418; 1 Eng. Com. Law Rep. 139. What is laid down in Fitzherbert seemed to the court of king's bench decisive in support of the action. For, said the court, here the party professes to convey a fee in the lands, and covenants with the heir, that he will do all things necessary to assure the same that a fee may descend to the heir if it be not intercepted by the ancestor, and the ancestor has not intercepted it, and the heir is damnified inasmuch as a fee has not descended to him, which it would have done if the party had fulfilled his covenant and performed the act required. Jones &c. v. King, 4 M. & S. 188.
When the lessor has granted a term to continue for three lives, and covenanted that the lessee and his heirs should quietly enjoy during the said term, the heir of the lessee, if
evicted during that term, it is clear, may maintain an action of covenant. Evans v. Guynne &c. 4 Barn. & Cress. 261; 10 Eng. Com. Law Rep. 327.
Or if the lessee covenant to repair and to leave the premises in repair at the end of the term, the heir of the lessor may maintain an action for breach of that covenant, against the lessee and his executors; and this, notwithstanding the covenant may have been with the lessee, his executors or administrators, without naming heirs. Lougher v. Williams, 2 Lev. 93. For the covenant runs with the land, and goes to the heir, without naming him. Lougher v. Williams; Spencer's case, 5 Rep. 16a; Dean and Chapter of Windsor's case, 5 Rep. 24a.
In Virginia, there was much doubt as to the propriety of maintaining an action of debt by an heir for the penalty of a bond given to his ancestor, with condition for the quiet holding and enjoying a plantation, though the condition had been broken by an eviction since the descent of the land to the heir. Eppes's ex'or v. Demoville, adm'r, 2 Call 22. Two judges (Lyons and Roane) were of opinion against the action; considering that the action of debt on the bond could only be maintained by the personal representative of the obligee. But a majority of the court (Pendleton, P., Carrington and Fleming) gave judgment in favour of the heir; considering that he is as much the legal representative of the obligee as to the real estate, as the executor is as to the personal, and that with the land the heir takes all deeds relating thereto, whether for conveying the title, or protecting the quiet enjoyment. In their opinions, the judges refer to and rely on 3 Bac. Abr. 57, 65, 453; 4 Id. 285; Rolle's Abr. 919; Wentw. 12, 63, 74; Co. Lit. 162, 292; Yelv. 215.
4. On a real covenant right of action at common law against the heir.
It is generally true, that by the common law the heir is not bound by the covenant of his ancestor unless it be stipulated by the terms of the covenant that it shall be performed by the heir, and unless assets descend from him sufficient to answer the charge. Dyer 14a, 23a; Barber v. Fox, 2 Saund. 136; Platt on Cov. 449. If therefore the heir be not named in the covenant, it will be binding only on the covenantor, his executors and administrators, although the heir may take by descent from the covenantor assets sufficient to answer the claim. 19 Pick. 453.
But this principle is not applied to real covenants running with the land granted or demised, and to which the covenants are attached for the purpose of securing to the one party the full benefit of the grant or demise, or to the other party the consideration on which the grant or demise was made. Such covenants are said to be inherent in the land, and will bind the heir, though not named. For as he is entitled to all the advantages arising from the grant or demise, it is but reasonable that he should sustain all such burdens as are annexed to the land. Platt on Cov. 65; 19 Pick. 453; 1 Rawle 133. A tract of land adjoining a mill pond was conveyed "with the full and free privilege of using the said mill pond within certain limits, with the full liberty of ingress and egress, to dig out and carry away the whole or any part of the soil in said pond, and to divide the same pond, as described in the deed, into six separate and distinct fish ponds." Between the grantor and the grantee's assignee a covenant was made, intended to confirm the assignee's right and interest under the grant, and to secure him in the enjoyment thereof. On this covenant an action was maintained by the assignee against the heirs of the covenantor. Morse v. Aldrich &c. 19 Pick. 449. Three of the heirs having conveyed to the other two, these two were charged jointly as assignees. Morse v. Aldrich &c. I Metcalf 544.
5. What right of action an assignee had at common law.
At common law, if a person seized of land leased it for a term of years, at a yearly rent, and then granted the rent, and the lessee attorned, it was considered that although the privity of estate remained with the lessor, yet that the attornment being a consent to the grant, made a privity of contract, and the assignee of the rent might maintain an action of debt for it against a lessee in possession of the land, and in the perception. of the profits. Robins v. Cox, 1 Lev. 22; Allen v. Bryan, 5 Barn. & Cress. 512; 11 Eng. Com. Law Rep. 292; 1 Wms. Saund. 241d.
At common law also, a privity of estate might be created by a covenant with the grantee and his assigns, applying specifically to the land; and such covenant would run with the land. McCrady's ex'ors ads. Brisbane, 1 Nott & McCord 104. Thus where an estate of inheritance was granted in fee, with a covenant for further assurance, and the grantee assigned, the grantee's assignee might maintain covenant against the original grantor. Middlemore v. Goodall, Cro. Car. 503.
There was a like rule in the case of a lease for years. Noke v. Awder, Cro. Eliz. 373, 436. In such case if the lessee assigned his interest and covenanted with the assignee and his assigns for the quiet enjoyment of the premises, such covenant would sustain an action by the assignee of such assignee for the breach of it. Lewis v. Campbell, 8 Taunt. 715; 3 Barn. & Ald. 392; 4 Eng. Com. Law Rep. 258; 5 Id. 322.
It is a mistake then to suppose that the right of an assignee to maintain an action on a real covenant is derived entirely from the statute of 32 Hen. 8. That statute does not extend to covenants upon estates in fee or in tail, but only upon leases made for life or for years. Cro. Eliz. 863. It refers, says Richardson, J., only to the remedies for and against the grantees and assignees of the reversion. It does not apply to the remedies between the lessors and the assignees of lessees. These cases are provided for by the common law. Lewis v. Campbell, 8 Taunt. 715; 4 Eng. Com. Law Rep. 262. It is now conceded that at common law covenants ran with the land; the question is whether they ran with the reversion. Sergeant Williams thought it the better opinion that the assignee of the reversion could not bring an action of covenant at common law. 1 Wms. Saund. 240, note 3. Bayley, J. thought he could in some cases. Vyvyan v. Arthur, 1 Barn. & Cress. 410; 8 Eng. Com. Law Rep. 114. This was considered a case of a covenant running with the land at common law. Recently the view has been taken that at common law covenant could be brought by and against the assignee of the lessee but not of the lessor. 1 Wms. Saund. 240 a, note (a); 1 Smith's Leading Cases 27..
6. Operation of the statate of 32 Hen. 8, c. 34; this statute enacted in Virginia.
At the time that the statute of 32 Hen. 8, c. 34, was passed, an immense quantity of land passed from the dissolved monasteries to the king and from the king to the most favoured and powerful of his subjects. Much of this land was on lease, and the king and parliament were anxious that the assignees of the reversion should be in as good a situation as the lessors were. 5 Barn. & Ald. 1; 7 Eng. Com. Law Rep. 6.
The statute of 32 H. 8, c. 34, enacted for the benefit of the grantees of reversions, that they should have the like advantages against the lessees, their executors, &c. by entry for non-payment of the rent, and should have and enjoy all and every such advantages, benefits and remedies, by action only, for not performing other conditions, covenants or agreements
contained in the leases, against the lessees as the lessors or grantors had. The statute also gives, or recognizes in, the lessees the same remedy against the grantees of the reversion which they might have had against their grantors. 13 Com.
Bench (4 J. Scott) 489. Under this statute, the grantees or assignees stand in the same situation and have the same remedy against their lessees as the heirs at law of individuals or the successors (in the case of corporations) had before the statute. Ld. Kenyon, 3 T. R. 402; Best, J. 5 Barn. & Ald. 1.
From the statute of 32 Hen. 8, was taken the New York act in 1 R. L. of 1813, p. 363, 4, § 1, 2; 1 R. S. p. 747 of 1st and p. 739 of 2d edi. § 23, 24; and the Virginia act in 1 R. C. 1819, p. 452, § 26, 27. The latter act is substantially preserved in the Code of 1849, p. 567, ch. 138, § 1, 2, as follows:
§ 1. A grantee or assignee of any land let to lease, or of the reversion thereof, and his personal representative or assigns, shall enjoy against the lessee, his heirs, personal representative or assigns, the like advantage, by action or entry, for any forfeiture, or by action, upon any covenant or promise in the lease, which the grantor, assignor or lessor or his heirs, might have enjoyed.
§ 2. A lessee, his personal representative or assigns, may have against a grantee or alienee of the reversion, or of any part thereof, his heirs or assigns, the like benefit of any condition, covenant or promise in the lease, as he could have had against the lessors themselves, and their heirs and assigns; except the benefit of any warranty, in deed or law.
7. What is a sufficient assignment.
In an action of covenant by assignees of a lessor against the lessee, if the assignment be by a husband in right of his wife, there may be a question as to the interest which he takes in his wife's lands. 1 Co. Lit. 351 a; Id. 326 a. A lease having been made by a person who afterwards devised to the wife, the issue was whether the husband did by indenture convey to the plaintiffs the reversion of which he and his wife. were seized in right of the wife, to hold to the plaintiffs during the coverture of the wife with the husband. The inden
ture professed to be made by him and his wife, but was not executed by her; and it passed no more than his interest. But the court said, that was an estate during the joint lives of himself and his wife, which was all that he professed to convey by the terms of the deed. Robertson &c. v. Norris, 11 Adol. & El. N. S. 916; 63 Eng. Com. Law Rep. 916.
If a lessee for a term of years demise for a longer term, such demise operates in law as an assignment, and may be so treated