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THE

AMERICAN LAW REGISTER.

FEBRUARY, 1863.

COVENANTS FOR TITLE RUNNING WITH THE LAND.

COVENANTS which ran with the land were of early origin, and many of them were in common use, in leases and other contracts respecting lands, long before the introduction of the modern "Covenants for Title." See Spencer's Case, 5 Coke's Rep. 16 a.

When, therefore, covenants were contrived as securities for the title to land, having all the requisites for running with the land, they naturally became subject to existing rules for the regulation of other covenants so far as these were applicable to them. This fact serves to explain the frequent reference, in the following discussion, to adjudications on such other covenants for illustrations and authority; but this will be avoided beyond what is strictly auxiliary to our purpose.

Much confusion prevails in the branch of law under consideration, and indeed throughout the whole subject of "Covenants for Title." There appear to be three principal causes for this confu

sion.

First. The "Covenants for Title" are an artificial system, of a flexible nature, which has been left to judicial skill to shape by legal principles and needful rules, to the purpose for which they

VOL. XI.-13

(193)

are designed. Many rules, which have been adopted because recommended by the exigencies of particular cases, have afterwards been found to lead to unforeseen and most undesirable results, thus giving occasion for numerous retractions and qualifications.

Secondly. Narrow views contained in certain early cases have too much escaped deserved criticism, and have unduly influenced subsequent decisions.

Thirdly. There has been, in many instances, a strange misconception of the effect of previous decisions, and a confounding of cases, which, however they may superficially resemble each other, are, in fact, radically different.

Much progress has recently been made towards removing these evils. Both the English and American Courts have not scrupled to reject old authorities in favor of more liberal views when necessary; and a considerable approach has been made towards establishing this branch of the law on a proper basis. It will be our aim to give an intelligible and accurate statement of the existing law, in a manner that shall also present the changes and progress in it, adding such observations and criticisms as seem to be appropriate.

The following plan, though to some extent arbitrary, will assist the execution of the work :

I. OF THE PRINCIPLES WHICH REGULATE COVENANTS FOR TITLE IN RUNNING WITH THE LAND.

1. Of what is meant by "running with the land."

2. With what covenants for title may run.

3. To what extent the doctrine of running with the land contravenes the common law rule against the assignment of choses in action.

4. How far running with the land renders covenants for title "real covenants."

5. From what the ability of covenants for title to run with the land is derived.

(a) Of the words of the covenants.

(b) of the nature of the covenants.

First. The subject-matter of the covenants.

Second. The relation of the covenanting parties to each

other, and to that which the covenants concern.

II. OF THE PRACTICAL RULES WHICH REGULATE COVENANTS FOR TITLE IN RUNNING WITH THE LAND.

1. What estate is requisite to enable covenants for title to run with the land.

(a) The transmission of antecedent covenants.

(b) The creation of new covenants.

(c) of trust estates and mortgages.

2. Of the rights and remedies of the respective parties upon breach of covenants for title running with the land.

3. Of the division of the remedy on covenants for title which run with the land.

4. Of the release of the covenants for title which run with the land, and the effects thereof.

5. Of equities existing between the original covenanting parties and the effects thereof.

III. WHICH OF THE COVENants for titLE RUN WITH THE LAND

I. Of the principles which regulate covenants for title in run ning with the land.

Under this head are included some topics which might, with propriety, be classed in the subsequent divisions, but which seem essential to a complete view of the fundamental principles of the subject.

1. What is meant by "running with the land." The phrase "running with the land," as descriptive of covenants in general, is ambiguous, denoting either that the covenantor confers a benefit upon the estate of the covenantee, or imposes a burden upon that of the covenantor. Note to Spencer's Case, Smith's Lead. Cas. Only the former meaning applies to covenants for title; and when Chancellor KENT, speaking of these, 4 Kent 470, says, "they do not run with the land, but affect only the covenants, &c.," the context makes it obvious that he has in mind only the latter signifi

cation.

This phrase conveniently and forcibly indicates the intimate

connection of certain covenants with estates in land, and their peculiarity in passing as incidents upon the transfer of such estates. Other expressions are sometimes used for the same purpose, for example, inherent in the land:" Co. Litt. 384; Platt on Covs. 60, 61;"knit to the estate in the land:" Preston's Abstracts, Covenants; entwined about the estate:" 4 Hawks's Reports 833. It is needless to comment upon the numerous definitions of the covenants in question. The fundamental idea of them all is a peculiar assignability, or "negotiability." 17 Wend. 136, 148. The following is thought to be accurate, and is suited to the range of the proposed discussion:

Covenants for title run with the land when, being either expressed or implied by words of grant (Rawle on Covs. 533), in a conveyance of land, they are of such a nature that they become valuable incidents to the ownership of the estate, and until in some way arrested, pass with it through any series of transfers, whether by act of the parties or of law, so that the owner for the time being is entitled to claim in his own name from the original covenantor all the benefits and securities arising out of them.

2. With what may covenants for title run? Mr. Hare has strongly controverted (Note to Spencer's Case,) the case of Mitchell vs. Warner, 5 Conn. 497, as deciding that a covenant of warranty did not embrace water resting on the land. We think an examination of the case will show that the decision is only to the effect that a right of entering for the purpose of drawing off water is not an eviction from the land, though the Court considered it an incumbrance. Doubtless, as Mr. Hare maintains, the better doctrine is that of Bally vs. Wells, 3 Wilson 26, that covenants for title may run even with incorporeal hereditaments; and it may be said generally that they will run with whatever may properly be secured by

them.

3. To what extent the doctrine of running with the land contravenes the common law rule against the assignment of choses in action. The law of covenants running with the land is commonly said to be an exception to the common law rule, which forbids the assignment of rights of action. Rawle on Covs. 338; Note to Spen

cer's Case, Smith's L. C.; 4 Kent 525; 1 Dev. & Bat. 94; 3 Wilson 26. This view, though to a certain extent correct, is subject to some limitations, as is evident from the fact that in innumerable cases it is held that, when the covenants are once broken they no longer run with the land, for the sole reason that they have BECOME choses in action, and therefore incapable of assignWithout any extended discussion, we lay down the qualifications which seem necessary, and which, if observed, will prevent confusion on this subject.

ment.

(a) The running of covenants with the land differs from an ordinary assignment of a chose in action, in the fact that the covenants. are not recognised, as per se the subjects of the assignment, only the land is properly considered as assigned, and the covenants pass with it, as if ex necessitate as incidents.

(b) When by breach the covenants have become strictly choses in action, they are subject to the ordinary rule, and no longer pass even as incidents upon assignment of the land.

4. How far running with the land renders covenants for title "real covenants."

The words "real" and "personal" are often used to describe covenants for title in a way calculated to produce confused and erroneous impressions. 9 Rich. Law Rep. 374. Instances abound in which these covenants are all called "personal;" 4 Kent 470 et seq.; 1 Sumner 263; 36 Me. 170, 2 Vt. 327; while in other equally numerous instances some or all of them are designated as "real." 5 Blackf. Rep. 232; 4 Johns. 120; 1 M. & S. 355; 4 Id. 53.

The true distinctions are readily explained. A "real covenant” is ordinarily defined as one which has for its object something annexed to, or inherent in, or connected with land or other real property. Co. Litt. 384; Platt on Covs. 60, 61; 2 Bl. Com. 301. Such covenants usually run with the land, and only such; whence it is said that "the essential difference between a real and personal covenant is, that a real covenant runs with the land." 2 Green. Evid. 240. Therefore, when it is desired to distinguish those covenants for title which run with the land from others which de not, the former are called "real" and the latter "personal" cove

nants.

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