The allowance of contractual remedies shows that rent and feudal services of that nature, although dealt with as things capable of possession, and looked at generally from the point of view of property rather than of contract, yet approach much nearer to the nature of the latter than a mere duty not to interfere with a way.Other cases come nearer still.The sphere of prescription and custom in imposing active duties is large in early law.Sometimes the duty is incident to the ownership of certain land; sometimes the right is, and sometimes both are, as in the case of an easement.When the service was for the benefit of other land, the fact that the burden, in popular language, fell upon one parcel, was of itself a reason for the benefit attaching to the other.
Instances of different kinds are these.A parson might he bound by custom to keep a bull and a boar for the use of his parish.
A right could be attached to a manor by prescription to have a convent sing in the manor chapel. A right might be gained by like means to have certain land fenced by the owner of the neighboring lot. Now, it may readily be conceded that even rights like the last two, when attached to land, were looked at as property, and were spoken of as the subject of grant. It may be conceded that, in many cases where the statement sounds strange to modern ears, the obligation was regarded as failing on the land alone, and not on the person of the tenant.And it may be conjectured that this view arose naturally and reasonably from there having been originally no remedy to compel performance of such services, except a distress executed on the servient land. But any conjectured distinction between obligations for which the primitive remedy was distress alone, and others, if it ever existed, must soon have faded from view; and the line between those rights which can be deemed rights of property, and those which are mere contracts, is hard to see, after the last examples.A covenant to repair is commonly supposed to be a pure matter of contract.What is the difference between a duty to repair, and a duty to fence? The difficulty remains almost as great as ever of finding the dividing line between the competing principles of transfer,-- succession on the one side, and possession of dominant land on the other.If a right in the nature of an easement could be attached to land by prescription, it could equally be attached by grant.If it went with the land in one case, even into the hands of a disseisor, it must have gone with it in the other.No satisfactory distinction could be based on the mode of acquisition, nor was any attempted.As the right was not confined to assigns, there was no need of mentioning assigns. In modern times, at least, if not in early law, such rights can be created by covenant as well
as by grant. And, on the other hand, it is ancient law that an action of covenant may be maintained upon an instrument of grant. The result of all this was that not only a right created by covenant, but the action of covenant itself, might in such cases go to assigns, although not mentioned, at a time when such mention was essential to give them the benefit of a warranty.Logically, these premises led one step farther, and not only assigns not named, but disseisors, should have been allowed to maintain their action on the contract, as they had the right arising out of it.Indeed, if the plaintiff had a right which when obtained by grant would have entitled him to covenant, it was open to argument that he should be allowed the same action when he had the right by prescription, although, as has been seen in the case of rent, it did not follow in practice from a man's having a right that he had the contractual remedies for it. Covenant required a specialty, but prescription was said to be a sufficiently good specialty. Where, then, was the line to be drawn between covenants that devolved only to successors, and those that went with the land?
The difficulty becomes more striking upon further examination of the early law.For side by side with the personal warranty which has been discussed hitherto, there was another warranty which has not yet been mentioned by which particular land alone was bound. The personal warranty bound only the warrantor and his heirs.As was said in a case of the time of Edward I., "no one can bind assigns to warranty, since warranty always extends to heirs who claim by succession and not by assignment." But when particular land was bound, the warranty went with it, even into the hands of the King, because, as Bracton says, the thing goes with its burden to every one. Fleta writes that every possessor will be held. There cannot be a doubt that a disseisor would have been bound equally with one whose possession was lawful.
We are now ready for a case decided under Edward III., which has been discussed from the time of Fitzherbert and Coke down to Lord St.Leonards and Mr.Rawle, which is still law, and is said to remain still unexplained. It shows the judges hesitating between the two conceptions to which this Lecture has been devoted.If they are understood, I think the explanation will be clear.
Pakenham brought covenant as heir of the covenantee against a prior, for breach of a covenant made by the defendant's predecessor with the plaintiff's great- grandfather, that the prior and convent should sing every week in a chapel in his manor, for him and his servants.The defendant first pleaded that the plaintiff and his servants were not dwelling within the manor; but, not daring to rest his case on that, he pleaded that the plaintiff was not heir, but that his elder brother was.
The plaintiff replied that he was tenant of the manor, and that his great-grandfather enfeoffed a stranger, who enfeoffed the plaintiff and his wife; and that thus the plaintiff was tenant of the manor by purchase, and privy to the ancestor; and also that the services had been rendered for a time whereof the memory was not.
