nants. 5 Rep. 17. a. 13. There are some words which, when used in par- Implied coveticular contracts, will create a covenant. Thus the 4 Rep. 806. words grant or demise, in a lease for years, create a covenant in law, for quiet enjoyment of the lands demised, during the term; so that if the lessee be evicted by the lessor, or by any other person claiming a lawful title to the land, he may bring an action thereupon. So if a lease for years be made, reserving or Giles v. yielding and paying a certain rent, these words will Hooper, create a covenant for payment of the rent. Carth. 135. 1639. 14. Lord Mansfield has observed, that the distinc- 3 Burr. R. tion between implied covenants, by operation of law, and express covenants, is, that express covenants are taken more strictly; for a man may, without consideration, enter into an express covenant, under hand and seal. 15. An express covenant will qualify the generality Qualified by of an implied covenant, and restrain it so as that it express ones. shall not extend further than the express covenant. 16. A person made a lease of a house by the words demise, grant, &c. and the lessor covenanted that the lessee should enjoy the house during the term, without eviction by the lessor, or any claiming under him. The lessee was evicted by a person who did not claim under the lessor. It was held by Popham, Ch. Just., and all the other Judges, that the express covenant qualified the generality of the covenant in law, and restrained it by the mutual consent of both parties, that it should not extend further than the express covenant. Nokes's case, 4 1 1 Mod. 113. Vésey, 101. ral covenants, 17. Where several persons enter into a covenant, Joint and seve they may either bind themselves altogether, or else they may only bind each of themselves severally; from which arises a distinction between joint and several covenants: and a covenant of this kind may also be both joint and several. 18. Where a person covenants with two or more, and with each of them; if each of the covenantees Slingsby's case, 5 Rep. 18. Jenk. 262. takes a several interest or estate, the covenant is several; but if the covenantees take a joint interest in the subject matter of the covenant, it is a joint covenant. As if a man by an indenture demises to A. Black Acre, to B. White Acre, and to C. Green Acre, and covenants with them and every of them, that he is lawful owner of all the said acres ; in that case, as the interests are several and distinct, the words "every of them," will make the covenant several. But if the three acres had been demised to them jointly, then the words, every of them, would have been void. For a man by his covenant (unless in repect of several interests,) cannot make it first joint, and then several, by means of the words, every of them. Because, although several persons may bind themselves, and every of them, and so the obligation shall be joint or several, at the election of the obligee; yet a man cannot bind himself to three and to each of them, to make it joint or several at the election of several persons, for one and the same cause; for the Court would be in doubt 1 Saund. 153. for which of them to give judgment; also the covenantor would be several times charged with one and the same thing: and therefore the words, and every of them, are in such case of no effect, and do not sever the joint cause of action. Eccleston v. Johnson v. Wilson, Willes, 248. Northumberland v. Erring, ton, 5 Term Rep. 522. 19. If two lessees covenant jointly and severally, at the beginning of a lease, these words will extend to all their subsequent covenants; notwithstanding the intervention of covenants on the part of the lessor. 20. In a lease of coal mines, made by the Duke of Northumberland to G. Errington and John Ward, there was a string of covenants introduced by these words: "And the said G. Errington and J. Ward for themselves jointly and severally, and for their several and respective heirs," &c., and then came a proviso in these words: " and it was thereby declared by and between the said parties, and the said duke did thereby covenant, that it should be lawful for the les sees to sell a certain quantity of a particular sort of coals, they the said G. Errington and J. Ward paying and accounting to the duke for the same."-An action was brought by the duke against the executors of G. Errington, upon these words; and the question was, whether they amounted to a several covenant. It was determined, that the general words at the beginning of the covenants by the lessees, "jointly and severally, in manner following," extended to all their sub- 1 East, 497. sequent covenants, which were therefore all joint and several. Anderson v. Martin, 1 Inst. 384. 21. Covenants are divided into real and personal. Covenants real. Covenants real are those which have for their object 6 Jenk. 241. something annexed to, or inherent in, or connected with land, or other real property. Thus where three coparceners purchased land in fee, and covenanted that the survivors should convey to the heirs of such as should die first; this was resolved to be a covenant real. 22. It was held in Spencer's case, that when a co- 5 Rep. 16. venant extends to a thing in esse, parcel of the demise; the thing to be done by force of the covenant is quodammodo annexed and appurtenant to the thing demised. But when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hath no being. But if a lessee covenants to repair the houses demised to him, during the term; that is parcel of the contract, and extends to the support of the thing demised, and therefore is quodammodo annexed to the houses. 23. A. granted a watercourse to B. and his heirs, through Black Acre and White Acre; and covenanted for himself, his heirs and assigns, to cleanse the same; and that fines and recoveries levied, &c. of the said grounds should be and enure to confirm, &c. Afterwards a recovery was had, and a deed executed, declaring the uses as aforesaid. The Court held, that Holmes v. Ab. Eq. 27. Buckley, Brewster v. 1 Ld. Raym. 12 Mod. 171. 3 Wils. R. 25. this was a covenant real, and made good by the recovery. 24. A. tenant in fee simple granted a rent-charge out of lands, and covenanted for himself and his heirs to pay it without deduction. Lord Raymond held, Bally v. Wills, that this was a personal covenant: but the three other Judges held that this was a covenant real, being in the nature of a grant; or at least a declaration going along with the grant, showing in what manner the thing granted should be taken. Tatom v. 2 H. Black. 133. Extend to all claiming under the grantee. Spencer's case, ante, § 22. Lougher y. Williams, 2 Lev. 92. Brudnell v. 2 Wils. 143. Į Inst. 384. a. 25. The essential difference between a real and a personal covenant is, that a real covenant runs with the land, and extends to all who claim the land under the grantee, for it descends to the heir, and is also transferred to a purchaser. Therefore where a covenant real is entered into by a grantee or lessee, it will not only bind such grantee or lessee, but also his assignee; and the grantor or lessor, or his heir, may at any time bring an action on such covenant. 26. Thus, where in a lease for years the lessee covenanted with the lessor, his executors, and administrators, to repair, and leave in repair at the end of the term; in an action of covenant brought by the heir, it was objected that it lay not for him; but it was answered, that it was a covenant running with the land, and should go to the heir, though not named: and it appeared that it was intended to continue after the death of the lessor, his executor being named. 27. But where the lessor was only tenant for life, it was held, that his heir was not entitled to the benefit of covenants made with the lessor; because the lease determined by his death. 28. As the assignees of grantees or lessees are bound by all covenants real, annexed to the estate granted or leased, and which run with the land; so are they entitled to the benefit of all such covenants as are entered into by the grantors or lessors; and may maintain an action on them. 29. Thus, in Spencer's case it was resolved, that if 5 Rep. 17.a. a person made a lease for years, by the words grant or demise, which create a covenant for quiet enjoyment; and the assignee of the lessee was evicted, he should have a writ of covenant. For it was but reasonable that he should have such benefit of the demise, as the original lessee might have had; and the lessor had no other prejudice than that to which his special contract with the original lessee bound him. 30. By the statute 32 Hen. VIII. c. 34. § 2. it is enacted, that all feoffees and grantees of any lordships or hereditaments, for years, life, or lives, shall have the like action and remedy against all persons having reversions of such lordships or hereditaments, for any covenants contained in their leases, as they might have had against the lessors or grantors, their heirs or suc cessors. 31. A court of equity will give its assistance to an assignee, against all persons claiming under the grantor of an estate, to procure for him the benefit of the covenants contained in the original grant, and which run with the thing granted. vid. Tit. 13. c. 2. § 48. 32. Thus, in the case of Holmes v. Buckley, the Ante, 23. watercourse by mesne assignments came to the plaintiff; and Black Acre and White Acre to the defendant, who built on the same, and much heightened the ground that lay over the watercourse, by which it became more chargeable and inconvenient to repair; and, as it was alleged, and in part proved, the building had much obstructed the watercourse. So the bill was for establishing the enjoyment of the watercourse; and that the defendant, and all claiming under him, might from time to time cleanse the same, according to the covenant. It was objected, that the covenant being personal, was not at all strengthened by the recovery; and that the plaintiff, and all those under whom he claimed, being sensible of it, had for forty years cleansed the same at their own charge. The |