quiet enjoyment can only be broken by an eviction or ouster by title paramount. Dickinson v. Hoomes's adm'r &c. 8

Grat. 396.

11. Of covenants in leases; which of them do not bind an assignee.

Lord Coke says, "although the covenant be for him and his assigns, yet if the thing to be done be merely collateral to the land, and doth not touch or concern the thing demised in any sort, then the assignee shall not be charged. As if the lessee covenants for him and his assigns, to build a house upon the land of the lessor, which is no parcel of the demise, or to pay any collateral sum to the lessor, or to a stranger, it shall not bind the assignee, because it is merely collateral, and in no manner touches or concerns the thing that was demised or that is assigned over; and therefore in such case the assignee of the thing demised cannot be charged with it no more than any other stranger." Spencer's case, 5 Rep. 16b; Flight v. Glossopp, 2 Bingh. N. C. 125; 29 Eng. Com. Law Rep. 279.

Though with the land there be let personal property, a covenant by the lessee to deliver the personal property, or the value thereof, at the end of the term, is personal only, and binds only his personal representative, not the assignee of the lease. Allen v. Culver, 3 Denio 295.

Where lands are subject to the payment of rent, if a part be granted with a covenant by the grantor that such shall be discharged of the rent, this is only a personal covenant; not a real covenant which runs with the land; and therefore one to whom the other lands are granted, cannot, by virtue of it, be charged with the whole rent. Cook v. Arundel &c. Hardres 87; Wahl v. Burrell &c. 8 Gill 293.

12. Covenants which run with the land for or against an assignee of a lessor or lessee.

As, according to the 4th resolution in Spencer's case, 5 Rep. 16a, a covenant in law for title will pass with the estate; so an express covenant either for title or quiet enjoyment, will equally pass and be available for the assignee of the lessee or the executor of such assignee. Williams v. Burrell, 1 Man. Gr. & Scott 433; 50 Eng. Com. Law Rep. 433. Although, in Andrew v. Pearce, 4 Bos. & Pul. 158, it was held that the assignee of the lessee could maintain no action against the executor of the lessor on the covenant for quiet enjoyment,

yet this was on the ground that the lease had become void. by the lessor's death before the assignment; a fact which did not occur in Williams v. Burrell, 1 Man. Gr. & Scott 433; and which is adverted to in 8 Grat. 401.

Although in Wahl v. Burrell, 8 Gill 293, cited ante, p. 90, the covenant of Gross in the sub-lease to Ryland, that he should hold the lot thereby demised free and clear of any other or greater rent than that reserved therein, did not run with or bind the residue of the lot not sub-demised to Ryland, in respect to which it was regarded as a mere personal covenant; yet it did run with and bind the reversionary interest of Gross in the sub-leased lot, and against Gross and his assignees of such reversion, Ryland and his assignees would have had their remedy if charged with any other or greater rent than that specified in the sub-lease; but for the fact that the assignee of Ryland (the sub-lessee) had become the assignee of Gross, of his reversionary title in the lot embraced in the sub-lease, whereby the sub-lease and the covenants therein were merged and extinguished. S. C.

A lessor covenants to supply the tenements demised with a sufficient quantity of good water, at the rate of three guineas per annum for each house. Jourdain v. Wilson, 4 Barn. & Ald. 266; 6 Eng. Com. Law Rep. 420. He covenants with the lessee and his assigns not to let or establish any other place or seat on a certain stream of water, to be used for sawing mahogany, or any description of veneers, except to the lessee or his assigns. Norman v. Wells, 17 Wend. 146. For a breach of these covenants an action might be maintained by the assignee of the lessee.

A covenant by the lessee to lay out a given sum of money in rebuilding or repairing the premises, in case of damage by fire, would clearly be a covenant running with the land, that is, such a covenant as would be binding on the assignee of the lessee, and which the assignee of the lessor might enforce. Shep. Touch. 176; Abbott, C. J., in Vernon v. Smith, 5 Barn. & Ald. 1; 7 Eng. Com. Law Rep. 7. A defendant covenanted not expressly in those words, but that he would insure the premises to the amount of £ 800 against damage by fire, which covenant, under the statute of 14 Geo. 3, ch. 78, § 83, entitled the owner of the estate, in case the house insured were burnt, to have the amount laid out in rebuilding it; the action by the assignee of the lessor was maintained. Vernon v. Smith. In a state in which that statute of George is not in force, there may be a covenant by a mortgagor who has effected insurance on improvements on the lot conveyed, that the insurance shall be renewed, and in case of loss that the sum in

sured shall be immediately applied to rebuilding. Such a covenant, it is considered in Maryland, will run with the land. Thomas's adm'rs v. Vonkapff's ex'ors, 6 Gill & J. 381.

A covenant that a lessor will, at the end of the term, grant another lease, runs with the land. Gawdy, J. in Spencer's case, Moore 159. Though it is not beneficial to the estate granted in the strict sense of the words, (for it has no effect. until that estate is at an end,) yet it is beneficial to the owner as owner, and to no other person. Best, J. in Vernon v. Smith, 5 Barn. & Ald. 1; 7 Eng. Com. Law Rep. 7. "By the term collateral covenants, which do not pass to the assignee, are meant," says Best, J., "such as are beneficial to the lessor without regard to his continuing the owner of the estate." This principle, he observes, "will reconcile all the Vivyan v. Arthur's adm'x, 1 Barn. & Cress. 410; 8 Eng. Com. Law Rep. 115. "The general principle,” he states, "is, that if the performance of the covenant be beneficial to the reversioner, in respect of the lessor's demand, and to no other person, his assignee may sue upon it; but if it be beneficial to the lessor, without regard to his continuing owner of the estate, it is a mere collateral covenant, upon which the assignee cannot sue."

cases.

13. Covenants which do not bind an assignee not named.

The right of action of a lessor, for a breach of a covenant by his lessee, cannot be extended to an assignee, without his being named in the covenant, when the subject matter of it does not relate to a thing in esse at the time of the demise, Grey v. Cuthbertson &c. 2 Chitty 482; 18 Eng. Com. Law Rep. 397; 4 Dougl. 351; 26 Eng. Com. Law Rep. 398; as if it be a covenant to build houses. Doughty v. Bowman, 11 Adol. & El., N. S. 448; 63 Eng. Com. Law Rep. 447.

Such a covenant falls within the first resolution in Spencer's case, that if "the covenant concerns a thing which was not in esse at the time of the demise made, but to be newly built after," it "shall bind the covenantor, his executors or administrators; and not the assignee" of the land when he is not named. Doughty v. Bowman.

If, after a lease containing such covenant, the lessee, by a mortgage, covenants to perform the covenants in his lease, or to indemnify the mortgagee against the breach of them, the mortgagor's liability under this last covenant will not pass with the land on a subsequent assignment by the lessee of his reversion, so as to enable the mortgagee to maintain an action for the breach of such covenant against the assignee. For

the mere covenant to perform the covenants of the lease, if it had stood without any alternative, would have had no other effect than if the former covenants had been reinserted, and would not have bound the assignee of the reversion to build, when it only professes to bind the covenantor, his heirs, executors or administrators. And if the covenant presents an alternative, it is merely a covenant to indemnify, which cannot pass with the reversion. Doughty v. Bowman.

14. Covenants which bind an assignee who is named.

Spencer's case lays down the rule that if the lessee covenant for him and his assigns to do anything on the land demised, it will bind the assignee though the covenant should extend to a thing to be newly made. 5 Rep. 17. In a case before Lord Ellenborough, of an assignee specifically named in the covenant, he said, "though it were for a thing not in esse at the time, yet being specifically named, it would bind him if it affected the nature, quality or value of the thing demised, independent of collateral circumstances, or if it affected the mode of enjoying it." Mayor &c. v. Pattison, 10 East 135. That, says Alexander, C. B., is the rule to be extracted from Spencer's case, and from all which have followed it. Easterby v. Sampson, 6 Bingh. 644; 19 Eng. Com. Law Rep. 192; Com. Dig. Covenant (B 3); Shep. Touch. 179; Bally v. Wells, Wilmot's Cas. 345; 3 Wils. 27, 8; Calvert v. Reid, 10 Barn. & Cress. 849; 21 Eng. Com. Law Rep. 184; Harris v. Coulburn's lessee, 3 Harrington 338.

A lease provides that the lessee or his assigns may, during the term, take down the house and erect other buildings, and that the buildings and improvements so erected and remaining at the end of the term shall then be valued, and the lessor or his assigns shall pay to the lessee or his assigns the amount of the valuation not exceeding $1,500. The supreme court of New York considered that, according to Spencer's case, had the lessee covenanted to erect buildings, his assignee would have been liable for a breach of such covenant; and that he must have a right of action for the violation of a corresponding covenant on the part of the lessor. Lemetti &c. v. Anderson, 6 Cow. 308. If, however, such covenant be with the lessor only, and not with his assigns, then the action for the breach of it must be brought in the name of the original covenantee or his personal representative. Thompson v. Rose, 8 Id. 266.

15. Covenants which bind an assignee whether named or not.

Some covenants bind the assignee of land whether named or not. 11 Adol. & El., N. S. 448. According to the 1st and 6th resolutions in Spencer's case, 5 Rep. 16a, he is bound by covenants quodam modo annexed and appurtenant to the thing demised. Tatem v. Chaplin, 2 H. Bl. 123; for example a covenant to pay rent, Hannen v. Ewalt, 6 Harris 11; or a covenant to repair. Bally v. Wells, 3 Wils. 89; Merceron v. Dowson, 5 Barn. & Cress. 479; 11 Eng. Com. Law Rep. 278.

A compensation stipulated to be paid for the use of land and personal property together, is not a sum in gross, but rent issuing out of the land. Newton v. Wilson, 3 H. & M. 470; Michie v. Wood's ex'or, 5 Rand. 571. The yearly value of the demised premises may be increased by letting therewith articles of personal property; but the rent is regarded as issuing out of the land alone. Allen v. Culver, 3 Denio 295.

A covenant by the lessee to pay the rent, or to guarantee the payment thereof, runs with the land, and plaintiff's who are assignees of the lessor and grantees of the reversion, may maintain an action for the breach of that covenant. S. C. 290, 301.

So if the lessee covenant to pay all rates, taxes and assessments for which the premises should be liable, rated or assessed, this covenant runs with the land; and for a breach of it, the lessor or his assignee may maintain an action against the assignee of the lessee, Post v. Kearney, 2 Comstock 394; and this notwithstanding there is a person holding as the under-tenant of the assignee. S. C.

Where the owner of the reversion has made a lease, reserving rent, and assigned the rent without assigning his reversionary interest, he can prosecute for the breach of a covenant to surrender up the premises in good repair at the end of the term. Demarest v. Willard, 8 Cow. 209. If the reversion be assigned, the right to prosecute upon the covenant to leave the premises in repair, belongs to the assignee of the reversion. Matures v. Westwood, Cro. Eliz. 599, 616; 8 Cow. 210; Kitchen &c. v. Buckly, 1 Lev. 109.

If the lessee has assigned, an action will lie against the assignee, on a stipulation to put premises in repair, or to deliver them up in repair. Martin v. Clue, 16 Eng. Law and Eq. 262 ; Allen v. Culver, 8 Denio 294.