In the next reign the converse proposition was decided, that an assignee of the reversion was entitled in like manner to the benefit of the covenant, because "it is a covenant which runs with the land." /2/ The same law was applied, with still clearer reason, to a covenant to leave fifteen acres unploughed for pasture, which was held to bind an assignee not named, /3/ and, it would seem, to a covenant to keep land properly manured. /4/If the analogy which led to this class of decisions were followed out, a disseisor could sue or be sued upon such covenants, if the other facts were of such a kind as to raise the question. There is nothing but the novelty of the proposition which need prevent its being accepted. It has been mentioned above, that words of covenant may annex an easement to land, and that words of grant may import a covenant. It would be rather narrow to give a disseisor one remedy, and deny him another, where the right was one, and the same words made both the grant and the covenant. /5/The language commonly used, however, throws doubt and darkness over this and every other question connected with the subject. It is a consequence, already referred to, of confounding covenants for title, and the class last discussed, [404] under the name of covenants running with the land. According to the general opinion there must be a privity of estate between the covenantor and covenantee in the latter class of cases in order to bind the assigns of the covenantor. Some have supposed this privity to be tenure; some, an interest of the covenantee in the land of the covenantor; and so on. /1/ The first notion is false, the second misleading, and the proposition to which they are applied is unfounded. Privity of estate, as used in connection with covenants at common law, does not mean tenure or easement; it means succession to a title. /2/ It is never necessary between covenantor and covenantee, or any other persons, except between the present owner and the original covenantee. And on principle it is only necessary between them in those cases--such as warranties, and probably covenants for title--where, the covenants being regarded wholly from the side of contract, the benefit goes by way of succession, and not with the land.
If now it should be again asked, at the end of this long discussion, where the line is to be drawn between these two classes of covenants, the answer is necessarily vague in view of the authorities. The following propositions may be of some service.
*A. With regard to covenants which go with the land:--*(1.) Where either by tradition or good sense the burden of the obligation would be said, elliptically, to fall on the land of the covenantor, the creation of such a burden is in theory a grant or transfer of a partial interest in [405] that land to the covenantee. As the right of property so created can be asserted against every possessor of the land, it would not be extravagant or absurd to allow it to be asserted by the action of covenant.
*(2.) Where such a right is granted to the owner of a neighboring piece of land for the benefit of that land, the right will be attached to the land, and go with it into all hands. The action of covenant would be allowed to assigns not named, and it would not be absurd to give it to disseisors.
*(3.) There is one case of a service, the burden of which does not fall upon land even in theory, but the benefit of which might go at common law with land which it benefited. This is the case of singing and the like by a convent. It will be observed that the service, although not falling on land, is to be performed by a corporation permanently seated in the neighborhood. Similar cases are not likely to arise now.
*B. With regard to covenants which go only with the estate in the land:--In general the benefit of covenants which cannot be likened to grants, and the burden of which does not fall on land, is confined to the covenantee and those who sustain his persona, namely, his executor or heir. In certain cases, of which the original and type was the ancient warranty, and of which the modern covenants for title are present examples, the sphere of succession was enlarged by the mention of assigns, and assigns are still allowed to represent the original covenantee for the purposes of that contract. But it is only by way of succession that any other person than the party to the contract can sue upon it. Hence the plaintiff must always be privy in estate with the covenantee.
