veyancing 404; 2 Simons 343; 2 B. & Ad. 105; 1 M. & S. 355; 4 Id. 53; Rawle on Covs. 343); just as a lessee and a reversioner of land may sue separately for the injury to their respective rights from a trespass to the land. The current of American authority, so far as the question has arisen, is in an opposite direction. In St. Clair vs. Williams, 7 Ohio, 2d part 111, and also in Tapscott vs. Williams, 10 Ohio 442, the distinction is taken between a division of the land and a division of the estate, and while it is said that each party may sue separately, in the former case, it is held to be otherwise in the latter case. These same views are entertained in the later case of McClare vs. Gamble, 27 Penn. St. 288. The reasons for the distinction are not perfectly obvious, and the rule is open, to a great extent, to the same objections, in Mr. Preston's view, in case of a division of the land itself. However the rule may be ultimately settled, there are certainly some advantages in permitting separate actions, which may be sufficient to counterbalance any supposed inconvenience to the covenantor. In White vs. Whitney, 3 Met. 87 (before referred to), Č. J. SHAW says, in substance, that if two parties own distinct interests in an estate derived from a common grantor, the one as a mortgagee, the other as a purchaser of the equity of redemption, both parties will be entitled to the benefit of the common grantor's covenants according to their respective interests. It is suggested, however, that in case suit were to be brought, before either foreclosure or redemption, there might arise some question as to the method of proceeding.

4. Of the release of covenants, and the effect thereof.

This branch of the subject includes two principles so well established as to require only a distinct statement of them. One is, that any owner of land may discharge the covenants that run with it, so that such discharge shall be binding upon himself and his estate. 40 Me. 293; 13 N. H. 467; 33 Miss. 117; 1 Basle S. C. 405; 4 Cush. 504; 19 Wend. 334. The other is, that one who parts with his interest in land, is thereby divested of all power, afterwards, to release covenants running with it, so as to affect

subsequent owners. 29 Me. 527; 12 N. H. 413; 30 Me. 346; 13 Missouri 271; Cro. Car. 503; 13 Iredell (Law) 193.

Two highly important inquiries remain, which have received little or no consideration from legal writers. The first is, To what extent does the release by one while owner of the land, of covenants still unbroken, intercept the rights of subsequent owners? It is sometimes stated that a release by the owner of land totally nullifies the covenants for all purposes, and as to all parties; and a dictum in Middleman vs. Goodale, 1 Cro. Car. 503, is cited to that effect. We conceive, however, that this statement is open to considerable qualification. The question has usually been incidentally presented in cases where an owner of land has sought to make a covenantor competent to testify in support of the title, by releasing him from his covenant liabilities; and the objection has been urged, that as the covenants run with the land, the covenantor still remains liable to future owners, and is therefore still incompetent as a witness. This view seems to have met with favor in Abby vs. Goodrich, 3 Day 433, though the decision was on other grounds. In the later case of Clarke vs. Johnson, 5 Day 373, the whole court seems to have been of the opinion that the covenantor would remain liable to future owners, after a release by the owner for the time being; still, a majority of the court held that it was sufficient that the witness was disinterested when offered, notwithstanding some contingent future interest; but BALDWIN, J., regarded this continuing liability an insuperable obstacle to the competency of the witness. In Ford vs. Wadsworth, 19 Wend. 334, under similar circumstances, the court held the released covenantor to be a competent witness. The court, CowEN, J., concedes the continuing liability to future owners, and considers this an argument rather for than against his competency. For, "supposing him to testify with this view, he would be influenced to terminate his eventual liability by favoring the plaintiff." The same decision was made in Cunningham vs. Knight, 1 Basle's S. C. 399, on the same grounds. The question came up in the same form in Field vs. Snell. 4 Cush. 504. Here the release was under seal, and was recorded in the registry of deeds. The court, DEWEY, J., under

these circumstances, considered it unnecessary to decide whether the covenantor would remain responsible to future owners, because if he did not, he was certainly a competent witness, and if he did remain responsible, then, a fortiori, as according to the above cases, was he competent. The case of Littlefield vs. Getchell, 32 Me. 320, decides that the released covenantor is a competent witness, and without any discussion, or citation of authorities, assumes that a continuing liability to future owners would be an obstacle, declares that this does not exist, and farther asserts, that the registry of deeds is not designed to be used to record releases of covenants. These are the principal cases on this subject. None seems to have arisen between a subsequent purchaser and a party released in order to testify; and the statutes of many of the states allowing interested parties to testify, render this particular class of cases somewhat less important. We apprehend the law in relation to the release of covenants, to be substantially as follows. An owner of the land may totally discharge covenants running with it. For it would be absurd to say that a party who has once become a covenantor can never terminate his liability by an arrangement with those interested in the covenants.

If therefore a covenantor, desiring to relieve himself from any contingent liability on his covenants, obtains, for a valuable consideration, a release of the covenants from the owner of the land, we have no doubt that this would avail against a subsequent purchaser. For, as is said by DEWEY, J., in Field vs. Snell, “all that the second grantee takes is the right to all covenants running with the land, that have not been legally discharged, or become choses in action in the name and right of some previous grantee." But as covenants for title are a valuable part of an estate, the release seems so far to partake of the nature of a conveyance of a portion of the estate, that the publicity of record ought to be required for the protection of purchasers. But when a release is not for the sake of any benefit to the covenantor, but for some collateral purpose, as to qualify him as a witness and there is no intention or design to do anything beyond that specific purpose, especially when, as is usual, no consideration is paid, and the

design of the release is as well, or even better accomplished by restricting the operation of the release to that specific design, we feel confident that the courts will sustain the claims of subsequent owners to the benefit of the covenants, especially when there is no notice of the release.

Our second inquiry concerns the effect of a release of the original covenantor on the rights of intermediate covenantors.

Suppose A. sells land to B., B. sells to C., and C. to D., all with warranty, and D. releases A. Can I afterwards maintain an action against B. or C., for a defect in the title at the time of A.'s conveyance which has caused a breach of the covenants? or does the release of A. bar any action for such a cause? It may be urged that the respective covenantor's covenants are independent of each other, and therefore a release of one can not affect another.

But the right of resort for indemnity to A., by B. and C., in case they are compelled by D. to satisfy their own covenants, seems to be entirely destroyed, since it was founded solely on the immediate liability of A. to D. If the release was for a valuable consideration, we think there is little doubt that it would be held to be a full satisfaction, at least against the party granting the release for any future breach for which the released party would have been liable. And in any case, it would seem very analogous to the rule which exonerates sureties when the creditor abandons securities from the principal debtor, to hold that the release of a remote grantor is a relinquishment of all right of action, for defects existing at the time of such grantor's conveyance. The court intimates in Cunningham vs. Knight, 1 Basle S. C. 399, that this would be the case, but there is no further authority on the question.

5. Of the effect of equities between the original covenanting parties.

Chief Justice LUMPKIN, in delivering the opinion of the court in the case of Martin vs. Gorden, 24 Geo. 537, which concerned covenants for titles, says, "The result of a careful examination of authorities establishes that subsequent purchasers are affected by equities between previous parties." None of the cases, how

ever, are given which were subjected to the "careful examination," and the context makes it very evident that the learned judge had in mind an entirely different class of cases than those relating to prior equities. Besides, MCDONALD, J., dissented from this opinion in a forcible discussion of the question, and fully confirmed his views by authorities. It appears to be fully settled by many adjudications, especially those in Alexander vs. Schreiber, 13 Missouri 271; Suydam vs. Jones, 10 Wend. 180; Kellogg vs. Wood, 4 Paige 578; and Brown vs. Staples, 28 Me. 497, that a subsequent purchaser without notice is wholly exempt from any equitable agreements between the original parties not to enforce the covenants, or in any way to modify or restrict their effect. And it is even questionable whether he is affected by mere notice. of an equity which does not appear on the instrument containing the covenants, without something to indicate an intention or expectation on his part to be bound by the equity.

III. WHICH OF THE COVENANTS FOR TITLE RUN WITH THE LAND. Having completed the general survey of the principles and rules that regulate covenants for title in running with the land, it remains to consider to what particular covenants for title these principles and rules are applicable.

The covenants some or all of which are ordinarily inserted in conveyances of land, are as follows-1. For seisin. 2. For right to convey. 3. Against incumbrances. 4. For quiet enjoyment. 5. For farther assurance (most common in England). 6. Of warranty (especially in this country). All of these, in theory, run with the land until broken. In England and some of the states, they do all, in fact, run with the land; but in many of the states, only the covenants for quiet enjoyment and of warranty have practically this capacity; the others, which are commonly called covenants in præsenti, that is, covenants for the present existence of certain facts, are said to suffer an instantaneous breach, by the non-existence of those facts, and thus to become disabled to run with the land. The following discussion will be confined mainly to the disputed covenants, and as the same considerations are generally alike appli