Obligation to Erect and Maintain Fence. And the covenant has been held to be broken where the land sold is subject to a covenant that a certain fence should be erected and maintained.1 Restriction upon the Use of the Land. for certain purposes constitutes an against nuisances.3 (4) Subsequent Acts and Events. A restriction against the use of the land incumbrance, unless the restriction is Since this covenant, like the covenants of seizin and of right to convey, is broken, if at all, as soon as it is made, acts done or events occurring after the conveyance will not amount to a breach.a Mortgage Given by Grantor After the Conveyance. Hence, a mortgage on the premises given by the grantor after the conveyance to the covenantee is not a breach of the covenant against incumbrances.5 6. Covenant for Further Assurance-a. IN GENERAL. This is a covenant to do such further acts for the purpose of perfecting the covenantee's title as the latter may reasonably require, and it is broken when such a request is made and refused.7 b. ACTS WHICH MAY BE REQUIRED - General Principles. In determining whether a particular act comes within the meaning of the covenant for further assurance, the covenant will always be considered in connection with the other covenants of the deed and with the nature of the estate conveyed. 1. Obligation to Fence, an Incumbrance. - Burbank v. Pillsbury, 48 N. H. 475, 97 Am. Dec. 633; Kellogg v. Robinson, 6 Vt. 276, 27 Am. Dec. 550. See also Blain v. Taylor, 19 Abb. Pr. (N. Y. Supreme Ct.) 228. But compare Parish v. Whitney, 3 Gray (Mass.) 516. Condition to Erect Dwelling-house Within Specified Time. It has been held that it is not a breach of the covenant against incumbrances, that the grantor holds the land upon condition to erect a dwelling-house thereon within a certain time. Estabrook v. Smith, 6 Gray (Mass.) 572, 66 Am. Dec. 443. 2. Restriction on Use of Land an Incumbrance. See Floyd v. Clark, 7 Abb. N. Cas. (N. Y. C. Pl.) 136. For example, where the land sold was subject to a covenant that no ardent spirits should be sold therefrom, it was held that the covenant against incumbrances was broken. Hatcher v. Andrews, 5 Bush (Ky.) 561. 3. "No greater restriction is imposed in that case than such as the law imposes, and subject to which all property is held." Floyd v. Clark, 7 Abb. N. Cas. (N. Y. C. Pl.) 136, wherein it was held that a condition that a city lot shall not be used as a cemetery is not an incumbrance on the title. 4. Copeland v. McAdory, 100 Ala. 553; Foster v. Woodward, 141 Mass. 160. 5. Foster v. Woodward, 141 Mass. 160. 6. Force and Effect. For example, to levy a fine or to discharge a judgment or other incumbrance. King v. Jones, 5 Taunt. 418. In Davis 2. Tollemache, 2 Jur. N. S. 1181, Vice-Chancellor Stuart says: "The covenant for further assurance in a deed is a covenant intended to give full effect and operation to the estate and interest conveyed by the deed." In Cochran v. Pascault, 54 Md. 1, it is said that this covenant" relates both to the title of the vendor and to the instrument of conveyance to the vendee, and operates as well to secure the performance of all acts necessary for supplying any defect in the former as to remove all objections to the sufficiency and * It * * security of the latter." But see Armstrong v. Darby, 26 Mo. 517, wherein Napton, J., in delivering the opinion of the court, said: If the covenant for further assurance applies to any defect of title in the vendor, whether such defect can be supplied by the vendor or not, it is greatly more comprehensive than any other covenant for title, and may be said to render most of them totally superfluous. Why insert a covenant against incumbrances if the covenant for further assurance requires the vendor to buy up an outstanding mortgage or judgment and convey to the purchaser? Of what avail is the covenant of indefeasible seizin if all incumbrances must be removed under the covenant for further assurance?" A covenant that if the grantor should obtain title from the United States, he would convey the same with warranty was a covenant for further assurance, under which the covenantor could be compelled to convey his afteracquired title. Lamb v. Burbank, I Sawy. (U. S.) 227. 7. Breach. Smoot v. Coffin, 4 Mackey (D. C.) 407; Fields v. Squires, Deady (U. S.) 366. Where a vendor covenanted to procure a reconveyance to himself of such portions of the land described in the deed as he might have conveyed to others, or to convey other lands of equal value, etc., it was held that the vendor must procure such conveyance within a reasonable time; and eight years is not a reasonable time for the purpose. Vance v. Pena, 41 Cal. 686. 8. What Acts May Be Required. - Zabriskie v. Baudendistel, (N. J. 1890) 20 Atl. Rep. 163. For example, if they are general, extending to all paramount titles and incumbrances, then this covenant will be construed as general also; but if they are limited to defects of title has been said that in a covenant to do all "reasonable acts" for further assurance, "a reasonable act means such an act as the law requires." Must Be Lawful. - The act must, of course, be lawful.2 Must Be Necessary. And since the law will not require an unnecessary act, the act must be necessary.3 Hence, no further act can be required unless the grantee's title is shown to be imperfect.1 Must Be Practicable. The act required must be practicable. Levy of a Fine. - In England, a covenant to do all lawful and reasonable acts for further assurance is held to include the levying of a fine, though not named. Removal of Incumbrances. It has been said that the vendor may, under this covenant, be called upon for the removal of a judgment or other incumbrance.7 But this statement is, perhaps, too general. The proposition has been limited to the case of an incumbrance created by the grantor.9 -- c. REQUIRING FURTHER ASSURANCE — Usual Mode. The usual mode of requiring further acts is for the purchaser to submit to the grantor a draft of the intended assurance, with the opinion of counsel as to its necessity and propriety, and a tender of the vendor's necessary costs.1 or incumbrances created by the vendor, then the covenant is so likewise. This is clear from the fact that the purpose of this covenant is to enable a grantee to call upon his grantor to remedy defects in the title or remove incumbrances, the existence of which defects or incumbrances has been covenanted against. The statement in 2 Sugd. Vend. (14th ed.) 612, that “if the title prove bad and the defect can be supplied by the vendor," the covenant for further assurance may be resorted to, must be understood as referring to cases where this covenant stands alone or where the other covenants are limited. See Rawle Covenants (5th ed.), § 104. Thus in Armstrong v. Darby, 26 Mo. 517, it was held that the implied covenant against incumbrances being restricted to those done or suffered by the grantor, he could not, under the implied covenant for further assurance, be required to discharge a mortgage created by his grantor. Thus a If the estate or interest conveyed be limited, then, though the covenants be general, their operation is necessarily restricted, and the covenant for further assurance cannot require the conveyance of a greater estate. tenant in tail who mortgaged all the property to which he was entitled in possession, reversion, remainder, or expectancy, or otherwise howsoever," with a covenant for further assurance, could not be compelled to execute a disentailing deed. Davis v. Tollemache, 2 Jur. N. S. 1181. See also Taylor v. Dabar, I Ch. Ca. 274; Smith v. Baker, i Y. & Coll. 223. 1. Wood, B., in Warn v. Bickford, 9 Price 43. 2. Act Must Be Lawful. Lord Cairns, in Heath . Crealock, L. R. 10 Ch. 31. 10 5. Act Must Be Practicable. As to illness, lunacy, or death of the covenantor, whereby the act required ceases to be reasonable or practicable, see Anonymous, Moo. 124; Nash v. Ashton, T. Jones 195, Skinner 42; Pet's Case, I Leon. 304. Requiring Levy of Fine where Wife Refuses to Join. It was formerly held that a covenantor could, as a matter of course, be required to levy a fine, and that if his wife refused to join, he could be imprisoned till she consented. Boulney v. Curteys, Cro. Jac. 251; Middlemore v. Goodale, Cro. Car. 503; Hall v. Hardy, 3 P. Wms. 189. But this was long ago doubted, and is wholly repugnant to modern ideas. Outram v. Round, 4 Vin. Abr. 203; Emery v. Wase, 8 Ves. Jr. 505; 2 Story's Eq. (13th ed.), $$ 731-735. 6. Innes v. Jackson, 16 Ves. Jr. 366; King v. Jones, 5 Taunt. 418, 1 Marsh. 107. 7. Incumbrance Requiring Removal of. Heath, J., in King v. Jones, 5 Taunt. 427, I Marsh 107, affirmed in Jones v. King, 4 M. & S. 188. 8. Mr. Rawle intimates that the proposition that the purchaser may require a judgment or other covenant to be removed must be taken with some qualification. See Rawle on Covenants for Title, § 104. 9. Colby v. Osgood, 29 Barb. (N. Y.) 339. In Missouri the statutory covenant for further assurance has been held to apply only to such incumbrances as were created by the covenantor or over which he had control, and not to those arising collaterally by the acts of others. Armstrong v. Darby, 26 Mo. 517; Koenig v. Branson, 73 Mo. 634; Walker v. Deaver, 79 Mo. 664; Luther v. Brown, 66 Mo. App. 227. 10. Dart. Vend. (6th ed.) 888; 2 Sugd. Vend. (14th ed.) 614. Before bringing an action on a covenant for Time of Making Request. The request must not be unreasonably delayed, and if there is by the covenant a time limited within which acts of further assurance are to be done, the purchaser must make the request within the time named.1 -- Sufficiency of the Request. It is sufficient if the purchaser makes a general request, even if the assurance is to be such as shall satisfy his counsel. 2 d. SUFFICIENCY OF DEED EXECUTED IN PURSUANCE OF THE COVENANT. A deed executed in pursuance of this covenant need not itself contain covenants of title, unless this be expressly covenanted for.4 7. Time of Breach - Covenant of Seizin. - While the courts of our different states do not agree as to the force and effect of the covenant of seizin, and, as a consequence, do not always agree as to what constitutes a breach of the covenant, yet with one exception they seem to be agreed that the covenant of seizin is a covenant in præsenti, so that if broken at all it is broken at the time when it is made. 5 further assurance, the grantee must notify the grantor of the kind of assurance devised, or tender the same, giving a reasonable time for consideration. Miller v. Parsons, 9 Johns. (N. Y.) 336. Where the Covenant Is to Make "Such Further Assurance as Counsel Shall Advise," the purchaser must tender the intended assurance to the Covenantor. Higginbottom's Case, 5 Coke 19b; Bennet's Case, Cro. Eliz. 9. Here the purchaser himself, though learned in the law, cannot advise. Rosewel's Case, 5 Coke 19 b. And the counsel is the purchaser's counsel. Higginbottom's Case, 5 Coke 19 b. 1. Nash v. Ashton, T. Jones 195, Skinner 42. 2. General Request Sufficient. Pudsey v. Newsam, Yelv. 44, 1 Brownl. 84, Moo. 682. 3. Baker v. Bulstrode, 2 Lev. 95, T. Raym. 232, reported differently in 1 Mod. 104. 4. Deed Executed in Pursuance of the Covenant. -"Where the conveyance is really a further assurance, the purchaser must be supposed to have already obtained all such covenants for title as he was entitled to." 2 Sugd. Vend. (14th ed.) 615. This differs from the case of an agreement to convey" by reasonable assurance,' which would now be held to mean a deed with the usual covenants. It was formerly held, however, that such assurance might be without covenants, and even without a seal. Shep. Touch. 168; Coles v. Kinder, Cro. Jac. 571; Wye's Case, 2 Leon. 130; Pudsey v. Newsam, Yelv. 44; Lassels v. Catterton, 1 Mod. 67. 5. Ohio. According to the construction which has been adopted in Ohio if the grantor does not have seizin at the time of making the conveyance, the covenant is at once broken. Innes v. Agnew, 1 Ohio 386; Wetzell v. Richcreek, 53 Ohio St. 62. So far the doctrine in that state agrees with the doctrine of actual seizin as it is elsewhere understood. But the similarity stops here. In the other states which have adopted the covenant of seizin the covenant is satisfied by a seizin on the part of the grantor at the time of the conveyance; if he has seizin at that time, no seizin can subsequently occur by the dispossession of the grantee in consequence of the assertion of an outstanding superior title. In Ohio, however, the covenant will be broken whenever the grantee is evicted by the holder of a para Anderson v. Knox, 20 Ala. 156; Sayre v. Sheffield Land, etc., Co., 106 Ala. 440. Arkansas. Logan v. Moulder, 1 Ark. 313, 33 Am. Dec. 338; Abbott v. Rowan, 33 Ark. 593; Benton County v. Rutherford, 33 Ark. 640. Connecticut. - Mitchell v. Hazen, 4 Conn. 495, 10 Am. Dec. 169; Mitchell v. Warner, 5 Conn. 497. Illinois. - Brady v. Spurck, 27 Ill. 478; King v. Gilson, 32 Ill. 348, 83 Am. Dec. 269; Baker v. Hunt, 40 Ill. 264, 89 Am. Dec. 346; Frazer v. Peoria County, 74 Ill. 282; Jones v. Warner, 81 Ill. 343; Tone v. Wilson, 81 Ill. 529; Clapp v. Herdman, 25 Ill. App. 509. Indiana. Reasoner v. Edmundson, 5 Ind. Iowa. Brandt v. Foster, 5 Iowa 295; Camp Маіне. Cushman v. Blanchard, 2 Me. 266, II Am. Dec. 76; Hacker v. Storer, 8 Me. 232; Fairbrother v. Griffin, 10 Me. 95. Covenant of Right to Convey. The covenant that the grantor has a good right to convey, like the covenant of seizin, is a covenant in præsenti, and is broken, if at all, as soon as it is made.1 Covenants of Warranty and for Quiet Enjoyment. Since there can be no breach of the covenants of warranty and for quiet enjoyment before there is an eviction. of the grantee, the breach of these covenants takes place at the time of the eviction.2 Where the Breach Is by the Entry of the True Owner on Vacant Land. It has been held that where the land conveyed is vacant, and the covenants are broken by the subsequent entry of the true owner, the breach occurs when the true owner takes, or at least claims, the possession.3 Covenant Against Incumbrances. The covenant against incumbrances as found in England and the United States respectively is not, it appears, precisely the same. In England that covenant is prospective in operation, being usually connected with the covenant for quiet enjoyment, as that the purchaser "shall enjoy," etc., " and that free of all incumbrances." But in the United States the covenant is expressed in the present tense, as that the premises "are free from all incumbrances." Since, then, it is a covenant in præsenti, it is broken, if at all, at the time of the conveyance.* New Jersey. 2 Am. Dec. 354. New York. Bingham v. Weiderwax, I N. Y. 509: Mott v. Palmer, I N. Y. 564; Fowler . Poling, 2 Barb. (N. Y.) 303; Greenby v. Wilcocks, 2 Johns. (N. Y.) 1, 3 Am. Dec. 379; M'Carty v. Leggett, 3 Hill (N. Y.) 134; Hamilton v. Wilson, 4 Johns. (N. Y.) 72, 4 Am. Dec. 253: Morris v. Phelps, 5 Johns. (N. Y.) 49, 4 Am. Dec. 323; Abbott v. Allen, 14 Johns. (N. Y.) 248; Mygatt v. Coe, 124 N. Y. 212, reversing 44 Hun (N. Y.) 31. Lot v. Thomas, 2 N. J. L. 386, North Carolina. L. (13 N. Car.) 30. Pennsylvania. St. 229. South Carolina. Wilson v. Forbes, 2 Dev. Wilson v. Cochran, 46 Pa. - Pringle v. Witten, 1 Bay (S. Car.) 256, 1 Am. Dec. 612; Johnson v. Veal, 3 McCord L. (S. Car.) 449; Mackey v. Collins, 2 Nott & M. (S. Car.) 186. Tennessee. - Ingram v. Morgan, 4 Humph. (Tenn.) 66, 40 Am. Dec. 626. Westrope v. Chambers, 51 Tex. Vermont. - Garfield v. Williams, 2 Vt. 327; 558. Rombough v. Koons, 6 Wash. Missouri. The covenant of indefeasible seizin which, under the provisions of the Missouri statute, is implied from the use of the words" grant, bargain, and sell," is broken at once if the grantor at the time of his conveyance has neither title nor possession. Adkins v. Tomlinson, 121 Mo. 487. But this covenant has been construed to be more than a covenant in the present tense, and it has often been held that it runs with the land to the extent that if the covenantee takes any estate, however defeasible, or if possession accompanies the deed, and though title pass, yet in either event the covenant runs with the land and inures to the subsequent grantee upon whom the loss falls. Dickson v. Desire, 23 Texas. Eustis v. Cowherd, 4 Tex. Civ. App. 343: Alvord v. Waggoner, (Tex. Civ. App. 1895) 29 S. W. Rep. 797; Jones v. Paul, 59 Tex. 41. Vermont. Pierce v. Johnson, 4. Vt. 247; Wilder v. Davenport, 58 Vt. 642. 3. Moore v. Vail, 17 Ill. 185; Allis v. Nininger, 25 Minn. 525; Brown v. Allen, 88 Hun (N. Y.) 402. 4. Covenant Against Incumbrances Broken when Made Alabama. Thomas v. St. Paul's M. E. Church, 86 Ala. 138; Copeland v. McAdory, 100 Ala. 553. Illinois. Richard v. Bent, 59 Ill. 38. 14 Am. Rep. 1. Covenant for Further Assurance. -The covenant for further assurance is broken when a proper request for the further assurance is made and is refused.1 IV. COVENANTS RUNNING WITH THE LAND - 1. Definitions - Covenants Running with the Land. - A covenant is said to run with the land when either the liability to perform it or the right to enforce it passes to the assignee of the land.2 Covenants Running with the Reversion. —A covenant is said to run with the reversion when the right of enforcement or the liability to performance passes to the assignee of the reversion.3 Real Covenants. · Covenants which run with the land are real covenants, and the fact that the covenant runs with the land is said to be a consequence of its character as a real covenant.4 2. Creation a. IN GENERAL.—Where the covenant is of such a character or nature that it may run with the land, no particular form of words is necessary in its creation in order that it may so run.5 Covenant Must Be a Real Covenant.— The covenant, however, must be one which from its character and nature may run with the land; otherwise it cannot, even by the express agreement of the parties, be so annexed to the land as to run therewith.6 Real Covenant May by Agreement Be Prevented from Running.— And, on the other hand, though the covenant be one which may run with the land, yet if it be clearly the agreement of the parties that it shall not so run, it will not be annexed to and run with the land." (Mass.) 390; Wyman v. Ballard, 12 Mass. 304; Kramer v. Carter, 136 Mass. 504. Missouri. - Buren v. Hubbell, 54 Mo. App. 617; Winningham v. Pennock, 36 Mo. App. 688. Nebraska. - Chapman v. Kimball, 7 Neb. 399; Cheney v. Straube, 35 Neb. 521; Campbell v. McClure, 45 Neb. 608; Bellamy v. Chambers, 50 Neb. 146. New Jersey. - Stewart v. Drake, 9 N. J. L. 139: Garrison v. Sandford, 12 N. J. L. 261. New York. Barlow . Saint Nicholas Nat. Bank, 63 N. Y. 399, 20 Am. Rep. 547; Huyck v. Andrews, 113 N. Y. 81, 10 Am. St. Rep. 432. Wisconsin. Eaton v. Lyman, 30 Wis. 41. 1. Fields v. Squires, Deady (U. S.) 388; Zabriskie v. Baudendistel, (N. J. 1890) 20 Atl. Rep. 163. 2. Definition Covenants Running with the Land. Dorsey v. St. Louis, etc., R. Co., 58 Ill. 65; Scheidt v. Belz, 4 Ill. App. 431; Wiggins Ferry Co v. Ohio, etc., R. Co., 94 Ill. 83; Savage v. Mason, 3 Cush. (Mass.) 505; Shaber v. St. Paul Water Co., 30 Minn. 182; Kettle River R. Co. v. Eastern R. Co., 41 Minn. 471. In Flaniken v. Neal, 67 Tex. 629, Gaines, J., in speaking of covenants running with the land, said: By this is meant that it is a covenant which accompanies a conveyance of the land and passes from one purchaser to another through each successive link in the chain of title.' 46 Heisk. (Tenn.) 433, Deaderick, J., in speaking of real covenants, said: "A covenant real is that whereby an obligation to pass something real is created, as lands or tenements, or the obligation of which is so connected with the realty that he who has the latter is entitled to the benefit of or liable to perform the other." 5. No Particular Form of Words Required. — Trull. Eastman, 3 Met. (Mass.) 124, 37 Am. Dec. 126; Brown v. McKee, 57 N. Y. 684; Masury . Southworth, 9 Ohio St. 341. See also supra, this title, Creation and Construction. 6. Covenant Must Be a Real Covenant. - Ackroyd v. Smith, 10 C. B. 164, 70 E. C. L. 164; Doughty v. Bowman, 11 Q. B. 444, 63 E. C. L. 444; Fresno Canal, etc., Co. v. Dunbar, 80 Cal. 530; Gibson v. Holden, 115 Ill. 199, 56 Am. Rep. 146; Glenn v. Canby, 24 Md. 127; Kettle River R. Co. v. Eastern R. Co., 41 Minn. 461; Brewer v. Marshall, 18 N. J. Eq. 337, 19 N. J. Eq. 537, 97 Am. Dec. 679; Masury v. Southworth, 9 Ohio St. 348. See also Mygatt v. Coe, 147 N. Y. 456; and the title BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS, vol. 5, p. 6. Covenant Imposing Burden. -In Masury v. Southworth, 9 Ohio St. 341, Gholson, J., said: "However clearly and strongly expressed may be the intent and agreement of the parties that the covenant shall run with the land, yet if it be of such a character that the law does not permit it to be attached, it cannot be attached by the agreement of the parties, and the assignee would take the estate clear of any such covenant. 7. Real Covenant May by Agreement Be Disconnected from Land. Fresno Canal, etc., Co. v. Rowell, So Cal. 114, 13 Am. St. Rep. 112; Masury . Southworth, 9 Ohio St. 348. Intention of Parties. In Mohr v. Parmelee, 43 N. Y. Super. Ct. 320, it was said that the criterion for determining whether a covenant |