A warranty was a covenant which sometimes yielded but damages, and a covenant in the old law sometimes yielded land.In looking at the early cases we are reminded of the still earlier German procedure, in which it did not matter whether the plaintiff's claim was founded on a right of property in a thing, or simply on a contract for it. Covenant was brought for a freehold under Edward I., and under Edward III.it seems that a mill could be abated by the same action, when maintained contrary to an easement created by covenant. But Lord Coke did not mean to lay down any sweeping doctrine, for his conclusion is, that "a covenant is in many cases extended further than the warrantie."Furthermore, this statement, as Lord Coke meant it, is perfectly consistent with the other and more important distinction between warranties and rights in the nature of easements or covenants creating such rights.For Lord Coke's examples are confined to covenants of the latter sort, being in fact only the cases just stated from the Year Books.
Later writers, however, have wholly forgotten the distinction in question, and accordingly it has failed to settle the disputed line between conflicting principles.Covenants which started from the analogy of warranties, and others to which was applied the language and reasoning of easements, have been confounded together under the title of covenants running with the land.The phrase "running with the land" is only appropriate to covenants which pass like easements.But we can easily see how it came to be used more loosely.
It has already been shown that covenants for title, like warranties, went only to successors of the original covenantee.
The technical expression for the rule was that they were annexed to the estate in privity.Nothing was easier than to overlook the technical use of the word "estate," and to say that such covenants went with the land.This was done, and forthwith all distinctions became doubtful.It probably had been necessary to mention assigns in covenants for title, as it certainly had been to give them the benefit of the ancient warranty; for this seems to have been the formal mark of those covenants which passed only to privies.But it was not necessary to mention assigns in order to attach easements and the like to land.Why should it be necessary for one covenant running with the land more than another? and if necessary for one, why not for all? The necessity of such mention in modern times has been supposed to be governed by a fanciful rule of Lord Coke's. On the other hand, the question is raised whether covenants which should pass irrespective of privity are not governed by the same rule which governs warranties.
These questions have not lost their importance.Covenants for title are in every deed, and other covenants are only less common, which, it remains to show, belong to the other class.
Chief among these is the covenant to repair.It has already been observed that an easement of fencing may be annexed to land, and it was then asked what was the difference in kind between a right to have another person build such structures, and a right to have him repair structures already built.Evidence is not wanting to show that the likeness was perceived.Only, as such covenants are rarely, if ever, made, except in leases, there is always privity to the original parties.For the lease could not, and the reversion would not be likely to, go by disseisin.
The Dean of Windsor's Case decides that such a covenant binds an assignee of the term, although not named.It is reported in two books of the highest authority, one of the reporters being Lord Coke, the other Croke, who was also a judge.Croke gives the reason thus: "For a covenant which runs and rests with the land lies for or against the assignee at the common law, quia transit terra cum onere, although the assignees be not named in the covenant." This is the reason which governed easements, and the very phrase which was used to account for all possessors being bound by a covenant binding a parcel of land to warranty.
Coke says, "For such covenant which extends to the support of the thing demised is quodammodo appurtenant to it, and goes with it."Again the language of easements.And to make this plainer, if need be, it is added, "If a man grants to one estovers to repair his house, it is appurtenant to his house." Estovers for
repair went with the land, like other rights of common, which, as Lord Coke has told us, passed even to disseisors.
