in pleading. Tindal, C. J. in Wallaston v. Hakewell, 3 Man. & Grang. 322; 42 Eng. Com. Law Rep. 174.

8. What estate must pass to the assignee.

Such an interest as according to the case of Buckeridge v. Ingram, 2 Ves. jun. 652, would be a real hereditament, will pass to the assignee and make the assignee of the grantee liable to the action of the reversioner for a breach of a covenant in the original grant. Portmore v. Bunn, 1 Barn. & Cress. 694; 8 Eng. Com. Law Rep. 188.

In the case of a lease, there is a distinction between one who is an assignee of the whole term, and one who is but an under-tenant of the lessee. No action of covenant can be maintained by the lessor against such under-tenant for rent in arrear. Holford v. Hatch, Dougl. 182; 7 Har. & J. 122, 3. But if a lessee for years make an under-lease for a shorter term, and then grants his reversion, though for no longer than the under-lease was to continue, this will enable the grantee of the reversion to sue on such covenants in the under-lease as are incident to that reversion. Hughes v. Robotham, Poph. 30; Cro. Eliz. 302; Burton v. Barclay, 7 Bingh. 745; 20 Eng. Com. Law Rep. 321.

There is a great difference between a grantee or assignee of the reversion, and an assignee of the rent. The statute of 32 Hen. 8, ch. 34, applies to the former, Glover v. Cope, 4 Mod. 81; but not to the latter. Demarest v. Willard, 8 Cow. 210.

With respect to a grant by tenant in fee of a rent charge out of lands, it may be observed of the language in 12 Mod. 170, ascribed to Lord Holt, " that the assignee of the rent shall have covenant against the grantor, because it is a covenant annexed to the thing granted," that Lord Ellenborough inclined to view this language as extra-judicial. Putting aside that dictum, he found no authority to warrant the position that in the case of a conveyance in fee to certain uses, one of which was that the grantor should receive a rent, a covenant to pay the rent would run with it to an assignee thereof. The rent being reserved out of the original estate of the grantors, it was considered in an action by an assignee of the rent, against a person to whose use the premises were granted, subject to the rent, that the assignee had neither privity of contract nor privity of estate, in respect to the covenant; but the same was to be regarded as a covenant in gross. Milnes &c. v. Branch, 3 M. & S. 411. Lord Ellenborough said he did not see how the analogy as it regards covenants which run with the land

was to be applied unless it could be shewn that this is land; it might as well be applied to any covenant respecting a matter merely personal.

Where an action is brought by the plaintiff as assignee of the reversion, it is quite clear that it cannot be maintained unless he be assignee of the reversion to which the covenants in the instrument declared upon are annexed. Cardwell v. Lucas, 2 M. & W. 122.

Yet an action has been sustained by a remainderman, who was a tenant for life, for breaches of covenants contained in a lease which a previous tenant for life had made under a power. To the argument that the plaintiff must be assignee of the lessor or grantor, it was answered, that the person empowering the tenant for life to grant the lease, is, in the eye of the law, the lessor, and the plaintiff is his assignee. The lease proceeded out of the estate of that person, and the plaintiff is an assignee of that estate. The covenants were held to run with the estate out of which the lease issued, and to pass to the plaintiff and every person in succession, to whom the estate was given by the person creating the power. Isherwood v. Oldnow, 3 M. & S. 395; Whitlock's case (last resolution), 8 Rep. 70; Machel v. Dunton, 2 Leon. 33; Ashurst, J., Dougl. 572.

Though the lessee assign part of the land, yet if there remain in him all the estate in the residue that he ever had, there is such privity that an action of debt for the whole rent may be maintained against the first lessee by the lessor, or (if he has granted the reversion) by his assignee. Broom v. Hore, Cro. Eliz. 633.

Where the lease is by a mortgagee, a covenant by the lessee to pay to the lessor and his assigns, until payment and satisfaction of the mortgage debt, runs with the land, and does not become a covenant in gross until that event happens. Whitaker v. Harold, 11 Adol. & El., N. S. 171; 63 Eng. Com. Law Rep. 171. In this case, the plaintiff traced title by deeds not averred to have been executed by the mortgagor; tracing only from the mortgagee, he put himself in the situation of assignee of the mortgagee only; as such he maintained an action against the assignee of the lessee. S. C. 159.

If the covenant was only with the mortgagor, it has been considered in England that such covenant cannot run with the land. Though he had an equity of redemption, an interest which a court of equity would take notice of, yet he was regarded as having no interest in the land of which a court of law could take notice. The covenant with him to pay rent was deemed a collateral covenant, in like manner as if it had VOL. II.—6

Webb v. Russell, 3 T. R.

been entered into with a stranger. 402. It being thus held that the covenant, not being made with the person who had the legal estate, did not run with the land, and that the assignee could not maintain an action on the covenant, the consequence was that the covenant was considered as a covenant in gross, and that the mortgagor was allowed to maintain an action upon it. Stokes v. Russell, 3

T. R. 678; 1 H. Bl. 565.

The principle that a covenant with a lessor, who has only an equitable title, is a covenant in gross and does not run with the land, so as to give a right of action for or against an assignee, was acted on in Whitton v. Peacock &c. 2 Bingh. N. C. 411; 29 Eng. Com. Law Rep. 375.

There is a case in which the court of exchequer was supposed to have intimated that the assignee of a lessor, who had only an equity of redemption, might maintain covenant. Gouldsworth v. Knights &c. 11 M. & W. 337. But the court did not so determine. It made no determination inconsistent with the rule, that where the lease discloses that the land is mortgaged, and that the lessor has only the equity of redemption, the covenant for payment of rent is a covenant in gross. Pargeter v. Harris, 7 Adol. & El., N. S. 708; 53 Eng. Com. Law Rep. 708. That rule may still be regarded as prevailing in England, notwithstanding the cases of Wakefield v. Brown, 9 Adol. & El., N. S. 209; 58 Eng. Com. Law Rep. 209; and Magnay v. Edwards, 13 Com. Bench (4 J. Scott) 494; 76 Eng. Com. Law Rep. 494; 20 Eng. Law & Eq. 264.

The supreme court of Massachusetts had before it an action on covenants in a conveyance purporting to be in fee; the covenants being of warranty and seisin, and that the premises were free of all incumbrances except a mortgage deed. It does not appear that the case of Webb v. Russell was cited; but the court held that the conveyance was of an estate to which covenants real would attach, and which covenants might pass with the estate to a grantee or assignee. White v. Whitney, 3 Metcalf 83, 4.

In Virginia, where covenants of warranty were contained in a deed made by two persons, one of them in possession of the estate and the other having in the subject an interest which depended on the double contingency of the former dying without issue living at his death, and of the latter surviving him, Moncure, J. said, that if that double contingency had occurred, the deed would have operated, at least by estoppel, to pass the interest of the latter, and his covenant would then have run with the land; and he thought if it be

necessary to make this covenant run with the land that some estate should pass from the covenantor to the covenantee, it might well be contended that this case came up to that requisition. Dickinson v. Hoomes's adm'r, 8 Grat. 402.

But he did not deem it necessary that such estate should pass in order that the covenant may run with the land. For he adopted the view that where a covenant for something relating to the land is made, it is of no consequence whether the covenantor be the person who conveyed the land to the covenantee or be a mere stranger. 2 Lomax's Dig. 260, $29. "I can see no reason," said Moncure, J., "why these covenants, if in their nature they are such as can run with the land, should not run with the land as well when they are made by a stranger as when they are made by the donor; but I can see many reasons to the contrary. A person may be willing to purchase land, notwithstanding a flaw in the title, if he can fortify it by proper covenants. The owner may not be sufficiently responsible, but may be able to procure the assistance of responsible friends or creditors, or others may have sufficient interest to join him in the covenants." 8 Grat. 404. The judge was of opinion that the covenant would run with the land, even though the covenantor should be considered as a stranger to it; and that, even if the covenant did not run with the land, an assignee would have a right to enforce it for his benefit in the name of the covenantee. Id. For when it is evident, from the form of the transaction, that the intention of the parties was, that the original covenants should run with the land or remain with the covenantee for the benefit of his assignees, if they do not run with the land, but are covenants in gross, the covenantee should be considered as holding them for the benefit of the parties who claim by assignment under him. Riddell v. Riddell, 7 Simons 529; 10 Coud. Eng. Ch. Rep. 183; 2 Sug. on Vend. 726.

9. What covenants will run with the land.

The leading principles as to covenants, on which an assignee has or has not a right to sue or be sued, are laid down in Spencer's case, 4 Rep. 16a, and the resolutions there adopted have since been recognized and established. Bally v. Wells, 3 Wils. 25; Wilmot's cases 341; Gray v. Cuthbertson &c. 2 Chitty's Rep. 482; 18 Eng. Com. Law Rep. 397; 4 Dougl. 351; 26 Eng. Com. Law Rep. 398; Canham v. Rust, 8 Taunt. 227; 4 Eng. Com. Law Rep. 80; Tallman v. Coffin, 4 Comstock 136.

The words of the statute of 32 Hen. 8, allowing grantees of estates to have remedy by action for not performing conditions, covenants or agreements, Lord Coke limits to "such conditions as are incident to the reversion of the rent or for the benefit of the estate." Co. Lit. 2156. The statute extends to covenants "which touch or concern the thing demised and not to collateral covenants," 5 Rep. 18; Spencer's case, Moore 159; Shep. Touch. 176; not to covenants for the payment of a sum in gross, or for deliveries at the mansion house of the lessor of corn, wood or the like-deliveries inconsiderable in value, and of no use to the assignee unless he became the assignee of the mansion as well as the farm; there being a difference between such deliveries, and rents payable in corn or wood, without any stipulation as to the place where the articles were to be delivered. Co. Lit. 215b; Best, J. in Vernon v. Smith, 5 Barn. & Ald. 1; 7 Eng. Com. Law Rep. 6, 7.

In a case before Ld. Brougham, wherein the subject of covenants running with the land is considered, and the leading cases upon it collected, he says, "the covenant must be of such a nature as 'to inhere in the land,' to use the language of some cases; or 'it must concern the demised premises and the mode of occupying them,' as it is laid down in others; it must be quodammodo annexed and appurtenant to them,' as one authority has it; or as another says, 'it must both concern the thing demised and tend to support it, and support the reversioner's estate.'"' Keppel v. Bailey, 2 Mylne & K. 517; 1 Coop. Sel. Cas. 298; 8 Cond. Eng. Ch. Rep. 121; Ackroyd v. Smith, 10 Com. Bench (1 J. Scott) 187; 70 Eng. Com. Law Rep. 187. Examples may be seen in the adjudged cases. Morse v. Garner, 1 Strobhart 519; Savage &c. v. Mason, 3 Cush. 505.

The covenant in Sampson v. Easterby, 9 Barn. & Cress. 505, in the opinon of Lord Tenterden, tended according to the language of Wilmot, C. J. in Bailey v. Wells, Wilmot's notes 346, and the language in Shep. Touch. 176, to the support and maintenance of the thing demised, and therefore was considered by him to pass with the reversion. 17 Eng. Com. Law Rep. 433; 6 Bingh. 644; 19 Eng. Com. Law Rep.

192.

A

On the other hand the privilege or right in question in Ackroyd v. Smith, did not concern the premises conveyed or the mode of occupying them; it was not appurtenant to them. covenant, therefore, that such a right should be enjoyed, would not run with the land. This case illustrates the principle that it is not in the power of a vendor to create any rights not connected with the use or enjoyment of the land and annex