And as covenants entered into by a vendor with a purchaser run with the land in the possession of his representatives or assignees, so on the other hand covenants entered into by a purchaser with the vendor, respecting the land, will also run with the land, and charge the representatives or assignees of the purchaser in respect of it.

It is not, however, sufficient 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 (f). Therefore, it seems that if the estate was, at the time of the conveyance, mortgaged in fee, and the purchaser should enter into a covenant respecting the land with the vendor, the covenant would not bind the assignees of the land, but would be a mere covenant in gross; for the vendor would, in contemplation of law, be a mere stranger, and consequently there could be no privity of estate between him and the purchaser.

And even where there is a privity of estate at the time of the covenant, yet if a subsequent purchaser do not take the estate of the original purchaser, he will not be bound by the covenant. It seems difficult to conceive that this ease can exist. It occurred, however, in the late ease of Roach v. Wadham (g); an estate was conveyed to such uses as the purchaser should appoint; and in default of appointment, to himself in fee, yielding and paying to the vendors, their heirs and assigns, a perpetual fee farm rent, which rent the purchaser, for himself, his heirs, and assigns, covenanted to pay; the estate was afterwards conveyed to a purchaser; and as it was holden, that the purchaser was in under the power, and not by virtue of the first purchaser's estate, it was admitted, on all hands, that an action brought against him by

(f) Per Lord Kenyon, Webb v. Russell, 3 Term Rep. 398; Stokes v. Russell, ibid. 678; af

firmed in the Exchequer Chamber, 1 H. Blackst. 562.

(g) 6 East. 289.

the

the original vendor, for the fee farm rent, was not maintainable, for he had not the estate of the first purchaser, but took as if the original conveyance had been made to himself. This decision leads to the observation, that wherever a purchaser is to enter into a covenant, which it is intended shall run with the land, the vendor ought to insist upon the purchaser taking a conveyance in fee, and should not permit the estate to be limited to the usual uses to bar dower.

The proposition before stated, that it is not sufficient 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, seems to apply as well to covenants entered into by a vendor, as to covenants entered into by a purchaser. But the consequences of this doctrine are truly alarming. In a great proportion of cases, the vendor has either mortgaged the estate in fee, or is a mere cestui trust; and if his covenants were to be deemed covenants in gross, the assignees of the land could only compel performance of the covenants by the circuitous mode of using the name of the first purchaser or his representatives, whom at the distance of some years it might be very difficult to

trace.

que

It seems impossible to get over the objection, by the form of the covenant; for although the vendor covenant with the purchaser, his heirs, and assigns, yet the assignee of the lands will not be entitled to the benefit of the covenant, unless it run with the land under the general rule of law (h). The only mode by which the difficulty can be avoided is, to require the vendor to take a conveyance to himself in fee, or to the usual uses to bar dower, previously to executing a conveyance to the purchaser; and this, I believe, has been sometimes done since it was first suggested in this work. If,

(h) See Tempest's case, Clayt.

60; and see Palm. 558, and Roach v. Wadham, ubi sup.

indeed,

indeed, the objection should be thought to exist, it might also be thought, that where the vendor conveys the estate to the purchaser under the usual power of appointment, the covenants will not run with the land: but this, it is conceived, would be carrying the rule much too far; and there seems to be some ground to contend, that even in Roach v. Wadham, as the power was coupled with an interest, the second purchaser might have been held to have come in under, and to stand in the place of the first purchaser, so as to satisfy the rule of law, although he did not actually, as it was determined, take the estate of the first purchaser (¿). The point, however, was considered as clear, and was not discussed either at the bar or upon the bench.

SECTION II.

Of their general Construction.

Ir hath already been observed (k), that the covenants usually entered into by a vendor, seised of the inheritance, are, 1st, that he is scised in fee: 2dly, that he has power to convey: 3dly, for quiet enjoyment by the purchaser, his heirs,

(i) See and consider Co. Litt. 215, b. s. 10; Glover v. Cope, 1 Show. 284; Hurd v. Fletcher, Dougl. 43; Duke of Marlborough

9 I

v. Lord Godolphin, 2 Ves. 61; and see 3 Wils. 26, at the bottom. (k) Supra, ch. 9.

and

and assigns: 4thly, that the land shall be holden free from incumbrances: and lastly, for further assurance.

The five covenants are several and distinct, but the first and second of them are synonymous; for if a man be seised in fee, he has power to sell (). But the converse of this proposition is not universally true (m).

A man having merely a power to appoint an estate, cannot be said to be seised in fee of the estate, although he has a right to convey; and accordingly, in cases of this nature, it is usual to omit the first covenant, and to insert a covenant, that the power was well created, and is not suspended or extinguished.

Covenants for title are either general and unlimited, extending to the acts of all the world, or limited and restricted to the acts of certain persons named in the deed; and under this branch of our subject we may consider, Ist, to what, and against whose acts general and limited covenants extend: 2dly, in what cases restrictive words shall or shall not extend to all the covenants in the deed: and 3dly, to what remedy a purchaser is entitled under covenants for the title, in case he is evicted, or the title prove bad.

I. First then, 1. Although covenants are general and unlimited, and are not restricted to the acts of persons elaiming lawfully, yet it is now, perhaps, settled (n), although

(1) Nervin v. Munns, 3 Lev. 47; Browning v. Wright, 2 Bos. and Pull. 13.

(m) See 4 Cruise's Dig. 78, s. 30.

(*) Dudley v. Foliott, 3 Term Rep. 584; see Dy, 238, a. marg. ;

and Crosse v. Young, 2 Show.425, and the cases cited in the note to 3 Term Rep. 587; in some of which, however, the point was not decided, but a distinction was taken between express and implied covenants,

the

the contrary was formerly holden (0), that such a covenant shall not extend to a tortious eviction, but to evictions by title only; because the law itself defends every one against a wrongful entry; and therefore, if a purchaser be disturbed in his possession by a person having no title, he has a remedy at law against the wrong doer; and if he be legally evicted, he may recover against the vendor, in an action on the covenant. Lord C. J. Vaughan (p) adduces the four following reasons why the covenants should not extend to tortious evictions: 1. It is unreasonable, as the vendor cannot prevent the entry; 2. the vendee has his remedy against the wrong doer, and therefore ought not to charge an innocent person; 3. the vendee would have a double remedy for the same injury; 4. it might open a door to fraud, for the purchaser might secretly procure a stranger to make a tortious entry, that he might charge the covenantor with an action. And there is a case in the year-books in the reign of Henry VIII. where the question was, whether a general covenant in a lease should extend to an eviction by one who had no right. Englefield said, that he should not have a writ of covenant against his lessor when he is ousted by tort, for there is no mischief, because he may have a writ of trespass, or an ejectione firma against the person who ousted him; but if he was ousted by one who had a title paramount against whom he could have no relief, then he may have a writ of covenant against his lessor, Quod fuit concessum per plusieurs (q).

2. But where a vendor covenants to indemnify a purchaser against a particular person by name, there it seems that the covenant shall extend to an entry by that person,

(0) Mountford v. Catesby, Dy. 328, a.; see 1 Ro. Abr. 430, pl. 12; Shep. Touch. 166, 170; Anon. 1 Freem, 450, pl. 612;

21 2

Anon. 2 Ventr. 46; Anon. Laft. 460.

(p) Vaugh. 122.

(2) T. 26 H. 8, pl. 11.

be