passed by such land; that in pursuance of this grant the grantees, by their bond, dated August 6, 1709, and recorded in the registry of deeds, (and upon which this action was founded,) after reciting the grant to them and the condition on which it was made, bound themselves, their heirs, executors, administrators and assigns, to the agents of the plaintiffs, in the sum of fifty pounds, forever after to make and maintain such portion of the highway; that on March 21, 1710, an indenture recit ing the grant and condition, was entered into between the grantees, and Richard Cooper and Francis Adams, by which the westerly part of the land was granted to Cooper and Adams subject to the same condition; that in January, 1711, Cooper and Adams, by indenture, made a partition of the land conveyed to them, recognizing in such indenture, the obligation on themselves, their heirs and assigns, to perform the condi tion; that by an indenture dated March 12, 1713, between Adams and Eleazer Dunham, Adams granted to Dunham the land assigned to him upon such partition, and Dunham bound himself, his heirs, executors, administrators and assigns, to maintain that portion of the highway which passed by such land; that on January 1, 1734, the lot of land so conveyed to Dunham was granted by Samuel Kempton to Thomas Kempton, by a deed in which it was provided that the grantee, his heirs and assigns, should maintain the wall on the bank adjoining on the upper side, the full breadth of the land thereby sold; that in 1814 this lot of land was conveyed to the defendant; that between 1734 and the date of the deed to the defendant, there had been several conveyances of it, but in none of them was any notice taken of the obligation

should do it; and that covenant was enforced for and against the successors of those who were parties to the deed. But in that case it appeared that there was, according to the view of the Master of the Rolls, a common law liability, independently of that covenant, to repair the sea-wall, so that it would be very different from the case of creating a new liability the covenant there was framed in such a way as to create a grant by the different persons who took, on partition, portions of the property, of a rent-charge out of their lands, in order to provide for the expense. The covenant was in this form. The parties covenanted for themselves, &c., 'severally and respectively, in manner following, that is to say, that the charges, damages, and expenses of or attending the keeping and maintaining the walls and gutts of or belonging to the said lands, fresh marsh lands, hereditaments and premises hereby granted and released, or intended so to be, in good order and repair, shall be borne and paid by them (naming them), their respective heirs and assigns, out of the said lands and hereditaments hereby divided in proportion, and by an acre-scot to be from time to time for that purpose made thereon and payable thereout in the same proportions in ready money.' So although in terms it was a covenant, it was a covenant by these parties that the expense should be paid out of their proportions of the land by an acre-scot payable thereout in the same proportions in ready money. That is, therefore, really a grant by each of the parties of a rent charge of so much money as would be equivalent to his proportion of the total expense of repairing the sea-wall."

In Sharp v. Cheatham, 88 Mo. 498 (1885), where there was an agreement under seal between the owners of adjoining premises, that one should build a party wall, and the other pay half its cost when he used it, it was held that although the covenant to pay did not run with the land at law, yet in equity, a purchaser with notice of the covenant would be compelled to pay.

resting upon Barnaby and Shurtleff and their heirs and assigns, or of any condition upon which the grantees were to hold the land; that the highway and the wall had been suffered to get out of repair, and that the plaintiffs had been obliged to pay considerable sums of money to indemnify individuals for damages sustained in consequence thereof, and to put the highway and wall in repair.

If the court should be of opinion, that proof of notice or demand, or usage as to the repairs, was material, a new trial was to be granted; but if they should be of opinion, that the plaintiffs could maintain the action, independently of such evidence, the defendant was to be defaulted and the damages to be assessed by the court.

Eddy and W. Thomas, for the plaintiffs.

Warren and Beal, for the defendant.

PUTNAM, J., delivered the opinion of the court. The plaintiffs must maintain, that the land which was granted to Barnaby and Shurtleff, was originally charged with the payment or performance of this bond, and that it continued so charged in the hands of their assignees, and so in the hands of the defendant; that the original covenantors made a covenant to this effect with the inhabitants of Plymouth in respect of the land. But it is perfectly clear, that the town of Plymouth had no interest whatsoever in the land granted to Barnaby and Shurtleff, after the conveyance of the same to them. The town might have conveyed the land upon a condition, that the grantees should make or maintain the highway, and might have reserved a right of entry for any breach of that duty. But they did no such thing. The only condition they required in the deed, was, that the grantees should give a bond to maintain the highway.

The plaintiffs claim to recover upon the writing declared upon, as a covenant which runs with the land. But with what land is this covenant running? No right or estate in any land is conveyed by the covenantors to the inhabitants of the town. Nor did the town, in their

deed, reserve any right of entry or any interest whatever in the land which they granted to Barnaby and Shurtleff. But on the contrary, the town conveyed the land on a condition, that the grantees would give a bond that they would maintain the highway. The grantees gave a bond to that effect, and thereupon the estate vested in them absolutely.

We think it very clear, that the bond was a personal obligation of the obligors, not subjecting the land which the town had conveyed to them, in any other way than any of the estate of the obligors might be liable to the performance of their personal covenants or obligations. The circumstance, that the obligors bound themselves, their heirs, executors, administrators and assigns, did not give to the town any particular lien or interest in any real estate of the covenantors. There was no privity in estate between the covenanting parties, which would be necessary to exist in order to the creation of a covenant to run with the land. We are of opinion, therefore, that the defend

ant is not liable, as he is the assignee of the land so granted by the town to Barnaby and Shurtleff, under whom the defendant claims to hold it.1

MORSE v. ALDRICH.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1837.

[Reported 19 Pick. 449.]

THIS was an action of covenant. The cause was tried before Putnam, J.

In 1794 Stephen Cook, the defendants' ancestor, conveyed to William Hull, in fee, a tract of land in Watertown, containing about thirteen acres; with the privilege of using and improving the land and mill pond west of the same tract, for the purpose of fish ponds, baths, &c., within certain bounds described, including a portion of the grantor's mill pond; and the "full liberty of ingress, egress, and regress to and from any part of the said described land and water, to dig out and carry away the whole or any part of the soil, &c.; to build such causeways and dams as may be necessary to divide the same into six separate and distinct fish ponds."

Hull conveyed the same premises to the plaintiff.

Afterward, in November, 1809, an agreement under seal was made by and between Cook and the plaintiff, in which, in consideration of the covenants on the part of the plaintiff, Cook covenants with the plaintiff, his heirs and assigns, "that he will draw off his said pond when thereto requested by said Morse, in the months of August and September, not exceeding six working days in the whole, in each year, for the purpose of giving said Morse an opportunity of digging and carrying out mud, &c., as long as there may be mud in said pond, and no longer." It was upon this clause that the present action was brought. In the same agreement are other covenants, some concerning Morse's land and Cook's mill pond, and some concerning the discontinuance and costs of certain actions then pending between Cook and Morse. Cook does not covenant, in express terms, for his heirs or assigns.

It was contended by the plaintiff that the covenant above recited was a covenant running with the land, and therefore binding upon the defendants, who derive their title to their estate as heirs of Cook, as to four fifths thereof, and as assignees by quitclaim, of one of his heirs, as

1 In Wiggins Ferry Co. v. Ohio & Miss. R. Co., 94 Ill. 83 (1879), a ferry company, owning land independent of its ferry, granted to a railroad company certain easements over said land, and the railroad company, in consideration thereof, covenanted with the ferry company always to employ the ferry company to carry its freight and passengers across the river. The franchises and property of the railroad company were assigned to another company. It was held that the covenant did not run against the latter company.

to the other fifth. And this construction was supported at the trial, against the objection of the defendant. The plaintiff claimed the right to take the mud, &c., for the purpose of manuring his land.

The plaintiff requested the defendants to draw off the pond in September, 1835, in order that he might get out the mud, but the defendants refused.

The plaintiff claimed a right to dig and carry out the mud in and from every part of the pond; but the defendants contended that he was limited to the line of his own land, which runs through the pond, the plaintiff owning the land on one side, and the defendants owning the land on the other side of this line. The judge ruled the point in favor of the plaintiff.

While Cook was in the occupation of the pond, the plaintiff enjoyed the privilege of taking the mud, and afterwards, whenever he requested to have the pond drawn off, until 1835. Cook died in 1833.

It was proved that the defendants made a lease of their estate, subject to the plaintiff's right to have the pond drawn off and to take the mud, according to the covenant, and that they afterwards permitted the lessee to keep up the pond, contrary to the covenant, in consideration that the lessee would permit them to have the ice which should be made on the pond.

The plaintiff proved that there was a great quantity of mud in the pond; and the jury were directed to inquire particularly whether the damage would have been more or less if the plaintiff had been restrained to dig on his own land under the pond, for the year 1835. The jury found a verdict for the plaintiff for $25, as the damages sustained in 1835; and they found that there was so great a quantity of mud upon his own land that it would have made no difference that year whether he had been restricted to his own land, or had taken mud from any other part of the pond.

The questions reserved were: 1. Whether the covenant ran with the land, and was binding upon the defendants as the heirs of the covenantor; 2. Whether the privilege extended to the whole pond, or was restricted to the plaintiff's own land under the pond.

Mellen and Choate, for the defendants.

G. T. Bigelow, for the plaintiff.

ants are

WILDE, J., afterward drew up the opinion of the court. The defendcharged, as the heirs of Stephen Cook, their ancestor, with the breach of a covenant made by him with the plaintiff, and the question submitted to the court is, whether this covenant is such as is binding upon the heirs of the covenantor? And the decision of this question depends on another, namely, whether the covenant is a real covenant, running with the land, which the defendants inherit from their ancestor, the covenantor?

It is generally true, as has been argued by the defendants' counsel, that, by the principles of the common law, the heir is not bound by the covenant of his ancestor, unless it be stipulated by the terms of the

covenant that it shall be performed by the heir; and unless assets descend to him from his ancestor sufficient to answer the charge. Platt on Cov. 449; Dyer, 14 a, 23 a; Barber v. Fox, 2 Saund. 136. If, therefore, the heir be not named in the covenant, it will be binding only on the covenantor, his executors and administrators, although the heir may take by descent from the covenantor assets sufficient to answer the claim.

But this principle is not to be applied to real covenants running with the land granted or demised, and to which the covenants are attached for the purpose of securing to the one party the full benefit of the grant or demise, or to the other party the consideration on which the grant or demise was made. Such covenants are said to be inherent in the land, and will bind the heir or the assignee though not named. For as he is entitled to all the advantages arising from the grant or demise, it is but reasonable that he should sustain all such burdens as are annexed to the land. Platt on Cov. 65.

When a covenant is said to run with the land, it is obviously implied that he who holds the land, whether by descent from the covenantor, or by his express assignment, shall be bound by the covenant. The heir may be charged as an assignee, for he is an assignee in law, and so an executor may be charged as the assignee of the testator. Derisley v. Custance, 4 T. R. 75; Jac. Law Dict. Assigns. And a devisee may be charged in the like manner, and is entitled to the benefit of any corenant running with the land. Kingdon v. Nottle, 4 Maule & Selw. 53.

If then the covenant in question runs with the land, it is clear that the defendants are liable; and it is immaterial whether the heirs and assigns of the covenantor are named in the covenant, or not, quia transit terra cum onere. Bally v. Wells, 3 Wils. 29.

To create a covenant which will run with the land, it is necessary that there should be a privity of estate between the covenantor and covenantee. Spencer's Case, 5 Co. 16; Cole's Case, Salk. 196; 3 Wils. 29; Webb v. Russell, 3 T. R. 402; Keppell v. Bailey, 2 Mylne & Keen, 517; Vyvyan v. Arthur, 1 Barn. & Cressw. 410. In these cases, and in most of the cases on the same subject, the covenants were be tween lessors and lessees; but the same privity exists between the grantor and grantee, where a grant is made of any subordinate interest in land; the reversion or residue of the estate being reserved by the grantor, all covenants in support of the grant, or in relation to the beneficial enjoyment of it, are real covenants and will bind the assignee.

This principle is decisive of the present action. It appears by the deed of Stephen Cook, the defendants' ancestor, to William Hull, that the former conveyed to the latter a tract of land adjoining the mill pond in question," with the full and free privilege of using and improving the said mill pond within certain limits, with the full liberty of ingress and egress, to dig out and carry away the whole or any part of the soil in said pond, and to divide the same pond, as described in the deed, into six separate and distinct fish ponds."