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essence of a new law is-a rule for future cases. Per Kent, Ch. J., in Dash v. Van Kleeck, 7 Johns. 502.
There is no reason or justice in the Statute stepping in and conferring upon this lessee security for the payment of a sum of money which he failed to take for himself, — to wit, the security of assigns, — and to give to him an additional right of action, which he did not have by his contract of his own making, or by operation of law. No such a case could have been within the intendment of the Statute. We hold that the Statute does not apply to this covenant, made before its passage. The judgment will be affirmed. .
Note. — On the running of a covenant with an interest by estoppel, see Cuthbertson v. Irving, 4 H. & N. 742; 6 H. & N. 135.
eg bare on Telejami
father of the the prior wrot aut
(Reported Year Book, 42 Edw. III. 3, pl. 14.] ONE Laurence Pakenham brings a writ of covenant as heir against a prior, and alleges by his writ, that he does not keep the covenant made between one J., his ancestor, to wit, the grandfather of the plaintiff, whose heir he is, and one his (the prior's predecessor, that the prior and the convent would sing every week in a chapel in his manor of K., for him and his servants, &c.
Belknap. Neither the plaintiff nor his servants are living in the said manor, wherefore judgment of the writ.
Cavendish. This goes to the action, wherefore if you wish this to be your answer, we wish to imparl. Belknap. The deed of which you have made profert means that he
that head fourn is to sing for him and his servants, and when he and his servants are a. not living within the said manor, you cannot maintain this writ.
Cavendish. Then this goes to the action, wherefore if you wish to make this answer, we wish to imparl.
And then Belknap did not dare to demur, but said that the plaintiff had a brother older than himself, who was heir to his ancestor, to whom the action should be given, wherefore judgment, whether you, who are a younger son, and not heir, ought to have an action.
Cavendish. The plaintiff is tenant of the manor where the singing is to be done, wherefore it is reasonable that the action should be maintained by him, wherefore judgment, and we pray damages.
znante in B. Braumants not to build a wall Banigu 5C, in bonud? Probably the bundan dannot
the land bonus clicthante when to the
Belknap. And inasmuch as you have brought your writ as heir, and you have an elder brother, judgment if you have an action as heir, &c.
Ad alium dien. Cavendish says that the said J., great-grandfather of the plaintiff, enfeoffed one G. of M. of the said manor, who enfeoffed the plaintiff and one Alice, bis wife, of the said manor, to them and to their heirs of their two bodies begotten, and for default of issue, the remainder to J. and his heirs, so the plaintiff is tenant of the manor, and to no one else does it belong to have an action except to hiun, wherefore judgment, and we pray our damages, and also we say, that since the feoffment the singing has been done time out of mind.
Belknap. And inasmuch as you have brought this writ as heir, and yet you do not deny, that there is a nearer heir to him who made the covenant, to whom the action should be given rather than to you, therefore we pray that you may be barred.
Cavendish. And we pray judgment, because we are tenants of the manor by purchase, and privy to the ancestor who made the covenant, and also the services have been done time out of mind, wherefore judgment.
Belknap. Although he is privy in blood, and although he has purchased the land, yet inasmuch as he has brought this writ as heir, and he is not heir, and to no one is an action of covenant given except to him who made the covenant or his beir, therefore we do not understand that an action, &c.
FYNCHEDEN, J. I have seen it here in terms adjudged that two parceners made partition of land between them, and the one parcener made a covenant with the other, to acquit her and her heirs of a suit, which was due from the land, and the parcener aliened the land to a stranger, and afterwards the suit was in arrear and the stranger brought a writ to acquit him of the suit against the parcener, and the writ was maintained, notwithstanding he was a stranger to the covenant, so here.
Belknap. I grant it in your case, because the acquittance fell on the land, and not on the person; and here the covenant is to the person.
FYNCHEDEN, J. And if you grant me that that is law, then much more strongly in the other case, for in the case that I have mentioned of the suit, it was maintained because he was tenant of the land from which the suit was due, and so is it here, he is tenant of the manor where the chapel is, and in the chapel it is to be done, wherefore, &c.
WYCHINGHAM, J. If the king grants warren to another who is tenant of a manor, he shall have warren in the whole manor, and if he aliens the manor, yet the warren does not pass by the grant, because it is not appendant to the manor, wherefore no more here does it seem that the services are appendant to the manor.
THORPE, C. J., to Belknap. There are some covenants on which no man shall have an action, except the party to the covenant or his heir,
and some covenants have inheritance in the land, so that he who has Resorgnistru the land by alienation, or in some other way, shall have an action of tatloucine covenant, and when you say, that he is not heir, he is privy in blood, atelieur and may be her, and also he is tenant of the land, and it is thing
to which is annexed to the chapel which is within the manor, and so annexed to the manor, and so he has said that the services have beentu
Belknap. He has not counted in his count on such a prescription. Heu V .
too at c. Eith
the grantee con rius shall have the rent, notwithstanding that he had not a specialty, and it was not denied, &c.
but the sundan dunnot, Beau, not to bealda wallou is land
Frauto of a caussue, Butthon a's grantee ken Sue B'Ognute. ANONYMOUS.
COMMON PLEAS. 1582
[Moported Noore, 170, PL 318.]
The feoffee made a feoffment over.
And now he moved if the second feoffee could distrain ; and the court said Yes, because the covenant ran with the land ; and if the word "assigns” had not been in the deed, nevertheless the word “heirs” would have warranted distress to the assignee, by PERYAM, Justice.2
1 See Brewster v. Kidgill, 12 Mod. 166 ; post, p. 674; Milnes v. Branch, 5 M. & S. 411 ; post, p. 684 ; 1 Sm. L. C. (9th ed.) 87 et seq.
2 See Allen v. Culver, 3 Denio, 284, 301.
In Austerberry v. Oldham, 29 Ch. Div. 750 (1885), A. conveyed the fee of a strip of land, running through the middle of his estate, to trustees, to form part of a road, and in the conveyance the trustees covenanted with A., his heirs and assigns, that they the trustees, their heirs and assigns, would make the road and keep it in repair. The trustees made the road. A. afterwards sold his estate to the plaintiff, and the trustees sold the road to the defendants, both parties taking with notice of the covenant to repair. It was held by the Court of Appeal (Cotton, LINDLEY, and Fry, L. JJ.) that the plaintiff could not enforce the covenant against the defendants.
The opinion of LINDLEY, J., on the question of the covenant running with the land was as follows (pp. 780–783) : —
PLYMOUTH v. CARVER.
[Reported 16 Pick. 183.] This was a covenant broken for not repairing a highway, and a wall by which the side of the road was supported.
By an agreed statement of facts it appeared that on May 9, 1709, and on August 1, 1709, the plaintiffs granted to Abiel Shurtleff and James
“The first question which I will consider is whether that covenant runs with the land, as it is called, — whether the benefit of it runs with the land held by the plaintiff, and whether the burden of it runs with the land held by the defendants; because, if the covenant does run at law, then the plaintiff, so far as I can see, would be right as to this portion of his claim. Now, as regards the benefit running with the plaintiff's land, the covenant is, so far as the road goes, a covenant to repair the road ; what I mean by that is, there is nothing in the deed which points particularly to that portion of the road which abuts upon or fronts the plaintiff's land, it is a covenant to repair the whole of the road, no distinction being made between the portion of that road which joins or abuts upon his land and the rest of the road: in other words, it is a covenant simply to make and maintain this road as a public highway ; there is no covenant to do anything whatever on the plaintiff's land, and there is nothing pointing to the plaintiff's land in particular. Now it appears to me to be going a long way to say that the benefit of. that covenant runs with the plaintiff's land. I do not overlook the fact that the plaintiff as a frontager has certain rights of getting on to the road ; and if this covenant had been so worded as to show that there had been an intention to grant him some parti. cular benefit in respect of that particular part of his land, possibly we might have said that the benefit of the covenant did run with this land ; but when you look at the covenant, it is a mere covenant with him, as with all adjoining owners, to make this road, a small portion of which only abuts on his land, and there is nothing specially relating to his land at all. I cannot see myself how any benefit of this covenant runs with his land.
“But it strikes me, I confess, that there is a still more formidable objection as regards the burden. Does the burden of this covenant run with the land so as to bind the de. fendants? The defendants have acquired the road under the trustees, and they are bound by such covenant as runs with the land. Now we come to face the difficulty: Does a covenant to repair all this road run with the land ; that is, does the burden of it descend upon those to whom the road may be assigned in future? We are not deal. ing here with a case of landlord and tenant. The authorities which refer to that class of cases have little, if any, bearing upon the case wbich we have to consider, and I am not prepared to say that any covenant which imposes a burden upon land does run with the land, unless the covenant does, upon the true construction of the deed containing the covenant, amount to either a grant of an easement, or a rent-charge, or some estate or interest in the land. A mere covenant to repair, or to do something of that kind, does not seem to me. I confess, to run with the land in such a way as to bind those who may acquire it.
“It is remarkable that the authorities upon this point, when they are examined, are very few, and it is also remarkable that in no case that I know of, except one which I shall refer to presently, is thore anything like Authority to say that a burden of this kind will run with the land. That point has often been discussed, and I rather think the conclusion at which the editors of the last edition of Smith's Leading Cases have come to is right, that no case has been decided which does establish that
Barnaby certain land, on condition that they should become bound by sufficient bonds to make and maintain a portion of the highway which
such a burden can run with the land in the sense in which I am now using that expression. The case of Holmes v. Buckley, 1 Eq. C. Ab. 27, looks a little like it at tirst; but the observation to be made on that case I think is this : In the first place, it is quite plain that there the plaintiff had a cause of action ; he was entitled to an injunction of some sort to restrain the defendants from interrupting his watercourse. The right of the plaintiff to enforce specifically the covenant to repair, or rather to cleanse the watercourse, is obscure, and we have not got the decree which was pronounced ; and I confess that having only that short note of it which is to be found in 'Equity Cases Abridged,' I fail to understand the exact grounds of that decision, specifically enfor. cing that covenant to cleanse. I doubt whether it was a decision to that effect; but the case is too loosely reported to be a guide on the point.
“Morland v. Cook, Law Rep. 6 Eq. 252, another case in which it was said that the covenant ran with the land, is intelligible on this ground, — that there was there that which amounted to the creation of a rent-charge for the repair of the sea-wall which was in question. That is intelligible enough ; and if the covenant in the present case amounted to anything of the kind, of course the observations I am now making would not be applicable.
“The case before Vice-Chancellor Malins of Cooke v. Chilcott, 3 Ch. D. 694, has been so shaken that I cannot rely upon it as an authority at all. I think the Vice-Chancel. lor did intimate an opinion that the covenant there would run with the land. I confess I doubt the correctness of that opinion. He decided the case upon another point, and upon that other point only has it been followed. There is no other authority that I am aware of that such a covenant as this runs with the land, unless it is Western y. Macdermott, Law Rep. 1 Eq. 499 ; 2 Ch. 72, where the Court of Appeal did not sanction 'the notion that the covenant in that case ran with the land, although the covenant was a purely restrictive covenant. I am not aware of any other case which either shows, or appears to show, that a burden such as this can be annexed to land by a mere covenant, such as we have got here ; and in the absence of authority it appears to me that we shall be perfectly warranted in saying that the burden of this covenant does not run with the land. After all, it is a mere personal covenant. If the parties had intended to charge this land forever, into whosesoever hands it came, with the burden of repairing the road, there are ways and means known to conveyancers by which it could be done with comparative ease; all that would have been necessary would have been to create a rent-charge and charge it on the tolls, and the thing would have been done. They have not done anything of the sort and therefore, it seems to me to show that they did not intend to have a covenant which should run with the land. That disposes of the part of the case which is perhaps the most difficult.
"The last point was this : that even if it did not run with the land at law, still, upon the anthority of Tulk y, Moxhay, 2 Ph. 774, the defendants, having bought the land with notice of this covenant, take the land subject to it. Mr. Collins very properly did not press that upon us, because after the two recent decisions in the Court of Appeal in Haywood v. Brunswick Perinanent Benefit Building Society, 8 Q. B. D. 403, and London and South Western Railway Company v. Gomm, 20 Ch. D. 562, that argument is untenable. Tulk v. Moxhay cannot be extended to covenants of this description. It appears to me, therefore, that upon all points the plaintiff has failed, and that the appeal ought to be dismissed, with costs."
The case of Morland v. Cook, L. R. 6 Eq. 252, was explained by COTTON, L. J. (p. 774), as follows :
" Then there was another case, before the late Lord Romilly, of Morland v. Cook, which was relied upon ; but that was really a case not turning upon that doctrine, because it was this : There was a deed of partition of land, all of which was below the sea. level, and was protected by a river or sea wall, and a covenant was entered into by the different parties to pay their proportion of the expense of repairing the sea-wall, whoever