Benjamin Joy, and William Sullivan, Esquires, all of Boston, in the county of Suffolk, and Commonwealth of Massachusetts, witnesseth: Whereas the above-named parties are before the ensealment of these presents seised in fee as tenants in common of sundry pieces or lots of land, situated at said Boston, in the westerly part thereof, on the slope of what is known by the name of Mount Vernon, and bordering on Pinckney Street, Cedar or George Street, and on Sumner, formerly called Olive Street, which pieces or lots are delineated on the annexed plan, and which are hereinafter particularly described, and which pieces or lots of land they have agreed to divide between them, so that each of the said parties may hold his part thereof in severalty, to him, his heirs and assigns forever, as is hereinafter particularly expressed and declared, It is therefore hereby covenanted and agreed by and between the said parties, and their heirs, executors, administrators, and assigns, that they will hereafter stand seised of the premises in severalty, in the manner following: "

The indenture then proceeds to describe particularly the pieces and lots of land set out and conveyed in severalty to each of the said parties, and, after describing the same, contains the following clause:

"And it is hereby agreed, and each of the said parties, for himself severally, and for his heirs, executors, administrators, and assigns, covenants and agrees with the other parties, jointly and severally, and with their and each of their heirs, executors, administrators, and assigns, that the following shall be regarded as perpetual and fundamental covenants, conditions, and articles, in the partition by these presents made, and deemed to run with the land hereby divided, and that all deeds, grants, leases, conveyances, or other instruments, whatsoever, to be made by either of said parties, or their heirs or assigns, of or concerning the land or any part of it, hereby set off and divided to him in severalty, and all buildings thereon to be erected, shall be and forever remain subject to all and singular the said covenants, conditions, and articles, by each of them, their heirs and assigns to be faithfully kept and performed."

The third of these perpetual, fundamental covenants which were to run with the land, as before expressed, was as follows:

"Third, the centre of party walls, of every brick or stone building, may be placed upon the lines dividing said lots from contiguous lots. and the owner of such contiguous lots, whenever he shall make use of the same, in any building, shall pay [for] one half of the wall by him so used."

In this partition among the parties to the indenture, lot numbered thirty-six on Pinckney Street was set off and conveyed to Benjamin Joy, with the covenants and agreements aforesaid.

It appeared, that this lot numbered thirty-six was conveyed by the heirs of Joy, on the 5th of January, 1835, to John F. Loring and Henry Andrews, and by Loring and Andrews, by a deed dated November 29, 1839, to Ezekiel W. Pike, "together with all the rights, easements,

and privileges thereto belonging, subject to all the conditions and restrictions contained in a certain deed of division made between H. G. Otis and others, dated," &c. Pike entered upon and took possession of the lot, under the deed to him, and built a brick dwelling-house thereupon, and placed the centre of the party wall of the westerly side of the house upon the line dividing lot thirty-six from the contiguous lot thirty-seven, on the plan referred to in the indenture.

Pike, by a deed dated December 1, 1840, conveyed lot numbered thirty-six to Luther S. Cushing and wife, "together with all the rights, easements, and privileges thereto belonging, and the house thereon standing, and subject to all the restrictions and conditions contained in a certain deed of division made between H. G. Otis and others," &c. Cushing and wife, by a deed dated December 1, 1841, conveyed the same estate to the plaintiffs, "together with the said dwelling-house, with all the rights, easements, and privileges thereto belonging, and subject to all the conditions and restrictions " referred to in the said last above-named deed. The plaintiffs thus trace a title to themselves to lot numbered thirty-six from the said Benjamin Joy.

It further appeared, that in the partition made by the indenture above mentioned, lot numbered thirty-seven, which was contiguous to lot numbered thirty-six, was set off and conveyed to Jonathan Mason, named in the indenture, with the covenants and agreements aforesaid, and that the same lot numbered thirty-seven was set off to the defendant, as one of the heirs of the said Jonathan Mason, upon a division of his estate.

It was also in evidence, that while the defendant held and was the owner of lot numbered thirty-seven, set off to him as aforesaid, a brick dwelling-house was erected thereupon, the easterly wall of which was the wall of the plaintiffs' house, the centre of the westerly side of which had been placed upon the party line, as aforesaid, on or before the first day of July, 1844, and the wall of the plaintiff's house thereupon and thereafter used.

On the 23d of December, 1845, a formal demand was made by the plaintiffs upon the defendant, for the value of the wall so used, which not being paid, this suit was brought to recover one half the value of the partition wall belonging to the plaintiffs, according to the covenant and provision in the indenture of partition.

It appeared, further, that by an agreement dated March 11th, 1844, between the defendant and Joseph Lincoln and Eber Taylor, the defendant agreed to convey lot numbered thirty-seven to them, at any time within three years from the 11th of March, 1844, upon the performance of their undertaking to build a brick dwelling-house on the same lot within a time specified, and to pay the defendant for the lot a specified sum at a time stated.

By a deed dated November 8th, 1844, the defendant conveyed lot numbered thirty-seven to Lincoln and Taylor, with the dwelling-house by them erected thereon, subject to all and singular the covenants, con

ditions, and articles contained in the indenture of partition between H. G. Otis and others.

It appeared, that the sum of $300, the agreed value of one half of said wall, was paid by Lincoln and Taylor, under a bond of indemnity, to Ezekiel W. Pike, above mentioned, after the completion of the house on lot numbered thirty-seven, in September, 1844.

Several points were stated in the argument, but the only one which requires any consideration, and the one on which the decision turns, is, whether the covenant in the indenture of partition, in regard to the wall of buildings to be placed on the lines dividing the lots, and providing for the use of and payment for such wall, and on which covenant this action is founded, is a covenant running with the land.

A mere statement of the covenant would seem sufficient to remove all doubt or question on this point. In the indenture of partition, the several parties agree and bind themselves and their representatives, that certain covenants, conditions, and articles therein contained shall be regarded as perpetual and fundamental, and deemed to run with the land thereby divided, and that all conveyances or other instruments whatsoever, to be made of or concerning the land, or any part of it, and all buildings thereon to be erected, shall be and forever remain subject to all and singular the said covenants, conditions and articles. The third of these perpetual and fundamental covenants, which the parties expressly declared should run with the land, provides that the centre of party walls of every brick or stone building may be placed upon the lines dividing said lots from contiguous lots, and that the owner of such contiguous lot, whenever be shall make use of the same in any building, shall pay for one half of the wall by him so used.

The intention of the parties to the indenture, that this covenant should run with the land, is express and clear. The provision in question is a most reasonable one, and no doubt was considered by the parties, and in fact is, highly beneficial, and not burdensome, to the land.

A covenant is said to run with the land, when either the liability to perform it or the right to take advantage of it passes to the assignee of the land. The liability to perform, and the right to take advantage of, this covenant, both pass to the heir or assignee of the land, to which the covenant is attached. This covenant can by no means be consid ered as merely personal, or collateral, and detached from the land. There was a privity of estate between the covenanting parties in the

land to which the covenant was annexed. The covenant is in terms between the parties and their respective heirs and assigns; it has direct and immediate reference to the land; it relates to the mode of occupying and enjoying the land; it is beneficial to the owner as owner, and to no other person; it is in truth inherent in and attached to the land, and necessarily goes with the land into the hands of the heir or assignee.

According to the report of the case, the defendant must be defaulted.' 1 "We concede the general doctrine, as contended for by appellant's counsel, that

ACTION of Covenant broken. In his writ, which is dated December 1, 1856, the plaintiff declares, in substance, that on the 4th day of April, 1849, the defendant by his deed, for a valuable consideration, received of Abner Coburn and others (named), owners of mills, dams and water power on Skowhegan Falls, bound and obliged himself to, and with each of the before-named persons, and to and with each of the grantees of either and all of them, and therein and thereby covenanted and agreed jointly and severally with each and all of the before-named persons, and with each and all of the grantees of either and all of them, that he would build a dam from &c., and would keep the same in perfect repair for the term of twenty years.

That plaintiff afterwards became part owner, by purchase from Abner Coburn and others, of a paper-mill and of a saw-mill, and of the water power aforesaid; that defendant has failed to perform his covenants, whereby the said plaintiff has been damnified.

The defendant pleaded the general issue and by brief statement set forth, (1) that the plaintiff is not a party to the obligation declared upon; (2) that his co-tenants are not joined with him, nor (3) are the obligees in said bond joined in said action; (4) the performance of said writing; (5) a waiver and discharge of his covenants by the obligees in said obligation before the commencement of this suit.

At the trial the plaintiff introduced, without objection, a copy of the obligation declared upon; also deeds, from some of the obligees named in the defendant's writing, conveying to plaintiff an undivided part of certain of the mills, and of the dam and water power. Whereupon the case was withdrawn from the jury to be submitted to the full court, on report of the case by Tenney, C. J. And if, in the opinion of the court,

where the relation of landlord and tenant does not exist, only such covenants as are beneficial to the estate will run with the land; but we do not regard the doctrine as applicable to cases where adjacent proprietors have, as in the present case, so contracted as to create mutual easements upon each other's estates, and entered into covenants with respect to the same. The new relation thus created, being of an intimate character, involving reciprocal duties with respect to each other's estates, may be regarded as an equivalent for the absence of tenure, so as to give effect to all covenants without regard to whether they are beneficial or onerous. However this may be, it is clear the rule contended for does not seem to be applied in this class of cases." Ullman, 104 Ill. 11, 20 (1882).

See Richardson v. Tobey, 121 Mass. 457; Sharp v. Cheatham, 88 Mo. 498.

Roche v.

the action is maintainable, it is to stand for trial; otherwise, the plaintiff to become nonsuit.

Abbott, for plaintiff.

Coburn and Wyman, for the defendant.

The opinion of the court was drawn up by

APPLETON, J. It appears that the defendant on April 4, 1849, by his bond of that date, "became bound and obliged jointly and seve rally" to Abner Coburn and others, "owners of mills, dams and water power on Skowhegan Falls," and also" unto the grantees of either or all of them" (naming the obligees in the bond), "to complete, maintain and keep in good and perfect repair, at all times, for and during twenty years from the first of April, a. D. 1849, said dam," &c., &c.

The plaintiff, as grantee of some of the obligees named in the bond. brings this action to recover damages for the injuries he has sustained by reason of the defendant's failure to perform his covenants.

It is a familar principle of law, that a bond or contract under seal cannot be assigned so as to enable the assignee to maintain an action in his own name. If the bond had been made to Coburn and others, and their assigns, it would not be pretended that an assignee could maintain an action on it in his own name. It does not strengthen the plaintiff's right of action because his only claim as assignee arises not from an assignment upon the bond, but by deed from some of the assignees.

The defendant is a stranger to the title. He contracts with certain individuals to do work upon a dam belonging to the obligees in the bond. The covenant is personal. There is no privity of contract between the plaintiff and the defendant, for the plaintiff was no party to the bond when it was executed.

Neither is there any privity of estate. "It is not sufficient," says Lord Kenyon, in Webb v. Russell, 3 T. R. 402, "that a covenant is concerning the land, but in order to make it run with the land, there must be a privity of estate between the covenanting parties." There being neither privity of contract nor of title, the action is not maintainable. Plymouth v. Carver, 16 Pick. 183; Hurd v. Curtis, 19 Pick. 458. Plaintiff nonsuit. TENNEY, C. J., RICE, CUTTING, MAY, and GOODENOW, JJ., concurred.