England and Wales High Court (King's Bench Division) Decisions

IN THE KING'S BENCH

Spencer and his wife brought an action of covenant against Clark, assignee to S. and the case was such: Spencer and his wife by deed indented demised a house and certain land (in the right of the wife) to S. for term of 21 years, by which indenture S. covenanted for him, his executors, and administrators, with the plaintiffs, that he, his executors, administrators, or assigns, would build a brick wall upon part of the land demised, etc. S. assigned over his term to J. and J. to the defendant; and for not making of the brick wall the plaintiff brought the action of covenant against the defendant as assignee: and after many arguments at the Bar, the case was excellently argued and debated by the Justices at the Bench: and in this case three points were unanimously resolved by Sir Christopher Wray, Chief Justice, Sir Thomas Gawdy, and the whole Court. And many differences taken and agreed concerning express covenants, and covenants in law, and which of them run with the land, and which of them are collateral, and do not go with the land, and where the assignee shall be bound without naming him, and where not; and where he shall not be bound although he be expressly named, and where not^[1].

1. When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quodammodo annexed and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee^[2] although he be not bound by express words: but when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hat no being: as if the lessee covenants to repair the houses demised to him during the term, that is parcel of the contract, and extends to the support of the thing demised to him during the term, that is parcel of the contract, and extends to the tenant to houses, and shall bind the assignee although he be not bound expressly by the covenant: but in the case at Bar, the covenant concerns a thing which was not in esse at the time of the demise made,^[3] but to be newly built after, and therefore shall bind the covenantor, his executors, or administrators, and not the assignee, for the law will not annex the covenant to a thing which hath no being.

2. It was resolved that in this case if the lessee had covenanted for him and his^[4] assigns, that they would make a new wall upon some part of the thing demised, that for as much as it is to be done upon the land demised, that it should bind the assignee; for although the covenant doth extend to a thing to be newly made, yet it is to be made upon the thing demised, and the assignee is to take the benefit of it, and therefore shall bind the assignee by express words. So on the other side, if a warranty be made to one, his heirs and assigns, by express words, the assignee shall take benefit of it, and shall have a^[5] warrantia chartae, F. N. B. 135. & 9 E. 2. Garr' de Charters 30. 36 E. 3 Garr. 1. 4 H. 8. Dyer 1. But although the covenant be for him and his assigns, yet if the thing to be done be merely collateral to the land, and doth not touch or concern the thing demised in any sort, there the assignee shall not be charged. As if the lessee covenants for him and his assigns to build a house upon the land of the lessor which is no parcel of the demise, or to pay any collateral sum to the lessor, or to a stranger, it shall not bind the assignee, because it is merely collateral, and in no manner touches or concerns the thing that was demised, or that is assigned over; and therefore in such case the assignee of the thing demised cannot be charged with it, no more than any other stranger.

3. It was resolved, if a man leases^[6] sheep or other stock of cattle, or any other personal goods for any time, and the lessee covenants for him and his assigns at the end of the time to deliver the like cattle or goods as good as the things letten were, or such price for them; and the lessee assigns the sheep over, this covenant shall not bind the assignee, for it is but a personal contract, and wants such^[7] privity as is between the lessor and lessee and his assigns of the land in respect of the reversion. But in the case of a lease of personal goods there is not any privity, nor any reversion,^[8] but merely a thing in action in the personalty, which cannot bindany but the covenantor, ^[9] his executors, or administrators, who represent him. The same law, if a man demises a house and land for years, with a stock or sum of money rendering rent, and the lessee covenants for him, his executors, administrators, and assigns, to deliver the stock or sum of money at the end of the term, yet the assignee shall not be charged with this covenant: for although the rent reserved was increased in respect of the stock or sum, yet the rent did not issue out of the stock or sum, ^[10] but out of the land only; and therefore as to the stock or sum the covenant is personal, and shall bind the covenantor, his executors and administrators, and not his assignee: and it is not certain that the stock or sum will come to the assignee's hands, for it may be wasted, or otherwise consumed or destroyed by the lessee, and therefore the law cannot determine at the time of the lease made, that such covenant shall bind the assignee.

4. It was resolved, that if a man makes a feoffment by this word ^[11] dedi, which implies a warranty, the assignee of the feoffee shall not vouch; but if a man makes a lease for years by this word concessi ^[12] or demisi, which implies a covenant, if the assignee of the lessee be evicted, he shall have a writ of covenant; for the lessee and his assignee hat the yearly profits of the land which shall grow by his labour and industry for an annual rent, and therefore it is reasonable when he hath applied his labour, and employed his cost upon the land, and he evicted (whereby he loses all), that he shall take such benefit of the demise and grant, as the first lessee might, and the lessor hath no other prejudice than what his special contract with the first lessee hat bound him to.

5. Tenant by the curtesy, or any other who comes in in the post. shall not vouch (which is in lieu of an action). But if ^[13] a ward be granted by deed to a woman who takes husband, and the woman dies, the husband shall vouch by force of this word grant, although he comes to it by act in law. ^[14]So if a man demises or grants land to a woman for years, and the lessor covenants with the lessee to repair the houses during the term, the woman marries and dies, the husband shall have an action of covenant as well on the covenant in law on these words (demise or grant) as on the express covenant. The same law is of tenant by statute-merchant or statute-staple, or elegit of a term, and he to whom a lease for years is sold by force of any execution, shall have an action of covenant in such case as a thing annexed to the land, although they come to the term by act in law; as if a man grants to lessee for years, that he shall have so many ^[15] estovers as will serve to repair his house, or as he shall burn in his house, or the like, during the term, it is as appurtenant to the land, and shall go with it as a thing appurtenant, into whose hands soever it shall come.

6. If lessee for years covenants to repair the houses during the term, ^[16] it shall bind all others as a thing which is appurtenant, and goeth with the land in whose hands soeverthe term shall come, as well those who come to it by act in law, as by the act of the party, for all is one having regard to the lessor. And if the law should not be such, great prejudice might accrue to him; and reason requires, that they, who shall take benefit of such covenant when the lessor makes it with the lessee, should on the other side be bound by the like covenants when the lessee makes it with the lessor.

7. It was resolved that the assignee ^[17] of the assignee should have an action of covenant. So of the executors of the assignee of the assignee; so of the assignees of the executors or administrators of every assignee, for all are comprised within this word (assignees) for the same right which was in the testator, or intestate, shall go to his executors or administrators: as if a man makes a warranty to one, his heirs and assigns, the assignee ^[18] of the assignee shall vouch, and so shall the heirs of the assignee: the same law of the assignee of the heirs of the feoffee, and of every assignee. So every one of them shall have a writ of warrantia chartae. Vide 14 E. 3. Garr. 33. 38 E. 3.21. 36 E. Gar. 1. 13 E. 1 Garr. 93. 19 E. 2. Garr. 85, etc. For the same right, which was in the ancestor, shall descent to the heir in such case without express words of the heirs of the assignees.

Observe reader your old books, for they are the fountains out of which these resolutions issue, but perhaps by these differences the fountains themselves will be made more clear and profitable to those who will make use of them. For example ^[19] in 42 E. 3. 3. the case is; grandfather, father, and two sons, the grandfather was seised of the manor of D. whereof a chapel was parcel, a prior with the assent of his convent by deed covenanted for him and his successors, with the grandfather and his manor, for the lords of the said manor and his servants, etc. The grandfather did enfeoff one of the manor in fee, who gave it the younger son and his wife in tail; and it was adjudged, that the tenants in tail, as ^[20] terretenants (for the elder brother was heir) should have an action of covenant against the prior, for the covenant is to do a thing which is annexed to the chapel, which is within the manor, and so annexed to the manor, as it is there said. And Finchden related, that he had seen it adjudged, that two ^[21] coparceners made partition of land, and did one covenant with the other to acquit him of suit, which was due, and that coparcener to whom the covenant was made did alien, and the suit was arrear; and the feoffee brought a writ of covenant against the coparcener to acquit him of the suit; and the writ was maintainable, notwithstanding he was a stranger to the covenant, because the acquittal fell upon the land: but if such covenant were made to say divine service in the ^[22] chapel of another, there the assignee shall not have an action of covenant, for the covenant in such case cannot be annexed to the chapel, because the chapel doth not belong to the covenantee, as it is adjudged in ^[23] 2 H. 4. 6. b. But there it is agreed, that if the covenant had been with the lord of the mannor of D. and his heirs, lords of the manor of D. and inhabitants therein, the covenant shall be annexed to the manor, and there the terretenant shall have the action of covenant without privity of blood. Vide 29 E. 3. 48. & 30 E. 3. 14. Simpkin ^[24] Simeon's case, where the case was, that the Lady Bardolph by deed granted a ward to a woman who married Simpk. S. against whom the Queen brought a writ of right of ward, and they vouched the Lady Bardolph, and afterwards the wife died, by which the chattel ^[25] real survived the husband (and resolved that the writ should not abate) the vouchee appeared, and said, what have you to bind me to warranty? The husband shewed, how that the lady granted to his wife before marriage the said ward; the vouchee demanded judgment for two causes.

1. Because no word of warranty was in the deed; as to that it was adjudged, that this word ^[26] (grant) in this case of grant of a ward (being a chattel real) did import in itself a warranty.

2. Because the husband was not assignee to the wife, nor privy. As to that it was adjudged, that he should vouch, for this warranty implied in this ward (grant) is in case of a chattel real so annexed to the land, that the husband who comes to it by act in law, and not as assignee, should take benefit of it. But it was resolved by Wray, Chief Justice, and the whole Court, that this word (concessi or demisi) in case of ^[27] freehold or inheritance ^[28] doth not import any warranty^[29] 11 H. 6. 41. acc', vide 6 H. 4. 12 H. 4. 5. 1 H. 5. 2. 25 H. 8. Covenant Br. 32. 28 H. 8. Dyer 28. 48 E.3.22. F. N. B. 145. C. 146, & 181. 9 Eliz. Dyer 257. 26 H. 8. 3. 5 H. 7. 18. 32 H. 6. 32. See the statute of ^[30] 32 H. 8. c. 24. 34. which Act was resolved to extend to covenants which touch or concern the thing demised and not to collateral covenants.

Note 1   For instances of covenants which do and of others which do not run with the land,vid. Touch 176. Com. Dig. Cov. C. 3vid. Ab. Cov. I. Bacon's Ab. Cov. E. 3. A covenant by a lessor that he would renew at the end of his term has been adjudged to run with the land and to bind the grantee of the reversion. Per Lord EllenburghRoe v. Hayley, 12 East. 469. A covenant for further assurance, as also a covenant for quiet enjoyment, runs with the estate to which it relates, whether it be an estate in fee or for a term of years, Middlemore v. Goodale, Cro. Car. 503.Campbelll v. Lewis, 3 Barn. & Ald. 392. and vid.Spencer v. Boyes, 4 Ves. 370. A covenant by a lessor to supply the premises demised, viz. two houses, with a sufficient quantity of good water at a rate therein mentioned for each house, is a covenant that runs with the land, and for the breach of which the assignee of the lessee may maintain an action against the reversioner; Jourdain v Wilson, 4 Barn. & Ald. 267. A covenant to insure against fire premises situated within the weekly bills of mortality, mentioned in 14 Geo. 3. c. 78 is a covenant that runs with the land, for the effect of the statute is to enable the landlord, by application to the governors or directors of the insurance office, to have the sum insured laid out in rebuilding the premises. And a covenant to lay out a given sum of money in rebuilding the premises. And a covenant tolay out a given wum of money in rebuilding or repairing the premises, in case of damage by fire, would clearly be a covenant running with the land.Vernon v. Smith, 5 Baru. & Ald 1. Also where A. being seised in fee of a mill and of certain lands, granted a lease of the lands for years, the lessee yielding and paying to the lessor, his heirs and assigns, certain rents and doing certain suits and services; and also doing suit to the mill of the lessor, his heirs and assigns, by grinding all such corn there as should grow upon the demised premises to the same person. The lessor afterwards demised the mill, and the reversion of the demised premises to the same person. The Court held that the reservation of the suit to the mill was in the nature of a rent, and that the covenant to render it resulting from the reddendum, was a covenant that ran with the land as long as the ownership of the mill belonged to the same person, Vyryan v. Arthur, 1 Barn. & Cress. 410. S. C. 2 Dow. & Ryl. 670. But a covenant not to hire persons to work in a mill, which was to be erected on the demised premises, who were settled in other parishes without a certificate, does not run with the land, and does not bind the assignee of the lessee though expressly named, Mayor of Congleton v. Pattison, 10 East. 130. Andvid. Canhan v. Rust, 8 Taunt. 227. S. C. 2 B. Moore, 164.Collins v. Plumb, 16 Ves. 454. It is not sufficient that a covenant in concerning the land, but in order to make it run with the land, there must be a privity of estate between the contracting parties, Webb v. Russell, 3 T. R. 402. Therefore where an estate was conveyed to a trustee in fee, to the use of such persons as W. should appoint, and in default of appointment to the use of W. in fee, and W covenanted in the same conveyance for himself, his heirs, and assigns, to pay a certain fee farm rent reserved out of the estate, to the vendors, their heirs, and assigns, it was held that the land was not bound in the hands of the appointee of W., by the covenant of W., for the appointee did not take the estate of W., to which his covenant was annexed, but took as if the original conveyance had been made to himself, Roach v. Wadham, 6 East. 289. Where the lessee of tithes agreed with the owner of lands for certain collateral considerations, not to take tithes in kind from the tenants of the lands for twelve years, but to accept a reasonable composition not exceeding 3s. 6d. per acre; and thereto bound himself and his assigns, it was held that the tithes are not bound by such a covenant of the lessee, Brewer v. Hill, 2 Anstr. 413. A covenant cannot run with a rent, Milnes v. Branch, 5 Maule & Sel. 411.    [Back]

Note 2   Moor, 27. 399. Cro. El. 457. 552, 553. 1 Roll. 521, 522. Postea, 24. 1 Sand. 239. Cr. Jac. 125. Cr. Car. 222. 523. 1 Jones, 245. 1 Siderf. 157. 1 Anders. 82. 1 Show. 284.    [Back]

Note 3   Cr. El. 457. Cr. Car. 439. Dy. 14. pl. 69. 1 Anders. 82. Moor, 159. 399.    [Back]

Note 4   Cr. Car. 25. 188. 1 Jones, 223. 1 Roll Rep. 360. Moor, 159. 399.    [Back]

Note 5   F. N. B. 135. b. Co. Lit. 384. b.    [Back]

Note 6    2 Jones, 152. 1 Leon. 43. Swinb. 324. 1 Atk. 171.    [Back]

Note 7   Cr. Car. 188.    [Back]

Note 8   1 Leon. 43.    [Back]

Note 9   Swinb. 324.    [Back]

Note 10   Kelw. 153. b. 1 And. 4. Dyer, 56. pl. 15, 16. 212. pl. 37. 257. 38. 21 E. 4. 29. A. 3 Bulst. 291. 9 E. 4.1.b.    [Back]

Note 11   2 Inst. 275. 4 Co. 81.a. 1 Co. 2. b. Co. Lit. 384. a. Yelv. 139. Perk. Sect. 124.    [Back]

Note 12   4 Co. 81. a. Yelv. 139. Co. Lit. 384. a. Perk. Sect. 124. Dall. 101.    [Back]

Note 13   2 Roll. 743.    [Back]

Note 14   Cr. Jac. 73. 2 Inst. 276. F. N. B. 134. h. Hob. 12. 1 Vent. 44. 1 Roll. 521.    [Back]

Note 15   Post. 24. b. F. N. B. 181. n.    [Back]

Note 16   Ant. 16. a. b.Post. 24 b. Cr. Jac. 240. 309. 439. 1 Jones, 223. Cr. El. 373. 1 Sid. 157. 2 Vern. 275. 1 B. & B. 238.    [Back]

Note 17   1 Roll. 521. 1 Roll. Rep. 81, 82. 2 Bulst. 281. Owen, 151, 152.    [Back]

Note 18   Cr. El. 534. Co. Lit. 384 b.    [Back]

Note 19   Co. Lit. 384. a. 1 Roll. 520, 521. Br Covenant, 5. Statham Covenant, 3.    [Back]

Note 20   Co. Lit. 385. a. 8 Co. 145. a.    [Back]

Note 21   1 Roll. 521. Co. Lit. 384. b. 385. a. 42 E. 3. 3. b. Br. Covenant, 5. 1 Roll. Rep. 61.    [Back]

Note 22   1 Roll. 521.    [Back]

Note 23   Co. Lit. 385. a. Fitz. Covenant, 13. Br. Covenant, 17. F. N. B. 181. a.    [Back]

Note 24   Co. Lit. 384. a. 2 Roll. 743, 744. 3 Bulst. 165. Hob. 47. 1 Roll. Rep. 81. Cr. El. 436.    [Back]

Note 25   1 Roll. 345. Co. Lit. 351. a.    [Back]

Note 26   Co. Lit. 384. a. 101. b.    [Back]

Note 27   Co. Lit. 384. a.    [Back]

Note 28   Vid. note to Noke's case, 4 Rep. 80.    [Back]

Note 29   1 Sand. 238, 239. Cr. Car. 25. 222. 1 Anders. 82. 2 Jones, 152. Owen, 152. Stile, 316, 317. Co. Lit. 215.a.    [Back]

Note 30   32 H. 8. c. 34. Moor, 159. Cr. Jac. 523. 2 Bulst. 281, 282, 283.    [Back]