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Facts of Particular Case to Be Considered.

Whether a covenant affects the quality, value, or mode of enjoyment of the estate, must be determined by the facts of each particular case.1

(3) Restrictive Covenants. - Where the necessary privity of estate exists between the covenantor and the covenantee, as in case of landlord and tenant, or where only a subordinate estate in the land is conveyed, covenants restricting the use of the premises for trade or building purposes run with the land so as to bind an assignee of the covenantor.2

Equitable Relief. — Courts of equity, however, irrespective of whether a privity of estate exists or whether the covenants run with the land, upon equitable grounds enforce such covenants against purchasers with notice.3

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Covenant to Issue Pass Over Railroad. Dickey v. Kansas City, etc.. Rapid Transit R. Co., 122 Mo. 223, it was held that a covenant by a railroad company in the grant of its right of way, to issue a perpetual pass to the grantor, did not run with the right of way so as to bind the successor of the covenantor.

Covenant for Maintenance of Grantor. - A covenant by the grantee for the maintenance of the grantor does not run with the land, being merely personal. Harkins v. Doran, (Pa. 1888) 15 Atl. Rep. 928. See also Divan z. Loomis, 68 Wis. 150, wherein it was held that. the burden of the covenant for support could not be shifted to a subsequent grantee without the consent of the covenantee. Still however, such a covenant may impose a charge on the lands in the hands of a subsequent grantee, and where such subsequent grantee fails to support the original grantor, such grantor has been allowed to recover the possession of the land during his lifetime. Martin v. Martin, 44 Kan. 295.

1. Covenants Held to Affect the Quality, etc., of the Estate Conveyed. Cockson v. Cock, Cro. Jac. 125: Hurst v. Rodney, I Wash. (U. S.) 375: Thomas v. Vonkapff, 6 Gill & J. (Md.) 372; Astor v. Miller, 2 Paige (N. Y.) 68; Lattimer v. Livermore, 72 N. Y. 174; Norman v. Wells, 17 Wend. (N. Y.) 146; Van Rensselaer v. Dennison, 35 N. Y. 393; Worthington v. Hewes, 19 Ohio St. 66; Crawford v. Witherbee, 77 Wis. 419. Covenant to Maintain Fence. The burden of a covenant to maintain fences around the land granted affects the land granted in the conduct or management thereof so as to run with the land. Dey v. Prentice, 90 Hun (N. Y.) 27; Hartung v. Witte, 59 Wis. 294.

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Covenant Not Affecting the Quality, etc., of the Estate Covenant to Reconvey. A general covenant on the part of the grantee to reconvey is personal only and does not run with the land. Van Doren v. Robinson, 16 N. J. Eq. 256. See also Maynard v. Polhemus, 74 Cal.

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runs with the land so as to bind the successor of the grantee. Gilmer v. Mobile, etc., R. Co., 79 Ala. 569, 58 Am. Rep. 623. 85 Ala. 422.

Covenant as to Drainage. A covenant by a railroad company to drain the water on a particular side of the right of way granted binds its successor. Peden v. Chicago, etc., R. Co., 73 Iowa 328, 5 Am. St. Rep. 680.

Covenant for Forfeiture. - In Ruddick v. St. Louis, etc., R. Co., 116 Mo. 25, 38 Am. St. Rep. 570, it was held that a covenant by a railroad company, the grantee of a right of way, for forfeiture, on its failure to furnish the grantor with passes over its road, ran with the land so as to bind its successor.

2. Trade Restrictions. Sutton v. Head, 86 Ky. 156, 9 Am. St. Rep. 274; Clement v. Burtis, 121 N. Y. 708, 31 N. Y. St. Rep. 902; Snyder's License, 2 Pa. Dist. Rep. 785.

Building Restrictions. Wilkinson v. Rogers, 10 Jur. N. S. 5; Winfield v. Henning, 21 N. J. Eq. 188; Barron v. Richard, 3 Edw. Ch. (Ň. Y.) 96; Clement v. Burtis, 121 N. Y. 708, 31 N. Y. St. Rep. 902.

Covenant Against Sale of Liquor. In Gilmer v. Mobile, etc., R. Co., 79 Ala. 569, 58 Am. Rep. 623, a covenant by a railway company in the grant of its right of way, not to permit the sale of liquor on the premises, was held to run with the land and bind its successor. The decision was based on the ground that the imposition of the restriction and the reservation of a right to cultivate the iand conveyed created a sufficient privity of estate.

Affecting Easement Granted. In Dexter v. Beard, (Supreme Ct.) 7 N. Y. Supp. 11, it was held that a covenant by the grantee of a right of way, that the right of way shall not be built upon, runs with the land.

3. Equitable Enforcement. - Hodson v. Coppard, 29 Beav. 4; Feilden v. Slater, L. R. 7 Eq. 523 Kettle River R. Co. v. Eastern R. Co., 41 Minn. 461; Bricker v. Grover, 10 Phila. (Pa.) 91; Middletown v. Newport Hospital, 16 R. I. 319. See also the title BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS, vol. 5, p. 2.

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b. COVENANTS CONFERRING BENEFITS (1) In General. A covenant conferring an immediate, permanent, and beneficial effect on the use to which land of the covenantee is designed to be applied may run with the land benefited so as to be enforceable by an assignee of the covenantee.1

Covenantee Must Be Owner of Land to Be Benefited. To enable such a covenant, however, to run with the land, the covenantee must, at the time the covenant is entered into, be the owner of the land to be benefited thereby.2

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(2) Subject of Covenant. In order, however, that the benefits of a covenant may run with the land benefited, it is necessary that the covenant affect the quality, value, or mode of enjoyment of the estate independent of collateral circumstances; that is, that the covenantee shall be interested in the performance of the covenant as owner of the land.3

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Minnesota. 30 Minn. 179.

- Baltimore v. White, 62 Md.

- Shaber v. St. Paul Water Co.,

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New Jersey. Woodruff v. Trenton Water Power Co., 10 N. J. Eq. 489; Brewer v. Marshall, 18 N. J. Eq. 337; National Union Bank v. Segur, 39 N. J. L. 173; Coudert v. Sayre, 46 N. J. Eq. 386.

New York. - Allen v. Culver, 3 Den. (N. Y.) 284; Watertown v. Cowen, 4 Paige (N. Y.) 510, 27 Am. Dec. 80; Norman v. Wells, 17 Wend. (N. Y.) 136; Avery v. New York Cent., etc., R. Co., 106 N. Y. 142; Whitney v. Richardson, 59 Hun (N. Y.) 601.

Ohio. - Cincinnati, etc., R. Co. v. Bosworth, 46 Ohio St. 81.

Pennsylvania. — Dunbar v. Jumper, 2 Yeates (Pa.) 74.

West Virginia. - Lydick v. Baltimore, etc., R. Co., 17 W. Va. 427.

Particular Covenants the Benefit of Which Runs with the Land. In Batavia Mfg. Co. v. Newton Wagon Co., 91 Ill. 230, a covenant by the grantor in a deed conveying land with water power, to keep the dam in repair, was held to run with the land conveyed so as to entitle an assignee of such land to sue thereon.

Covenant for Access to Land. - A covenant providing for access to the land runs with the land. Avery v. New York Cent., etc., R. Co., 106 N. Y. 143. See also Dailey v. Beck, Bright. (Pa.) 107.

Covenant to Fence Right of Way. - The benefit of a covenant by the grantee of a right of way for a railroad to fence the right of way will run with the land retained by the covenantor. Lake Erie, etc., R. Co. v. Power, 15 Ind. App. 179; Toledo, etc., R. Co. v. Cosand,

6 Ind. App. 222; Midland R. Co. v. Fisher, 125 Ind. 19: Cincinnati, etc., R. Co. v. Bosworth, 46 Ohio St. 81. Compare Gulf, etc., R. Co. v. Smith, 72 Tex. 122.

To Maintain Division Fences. And also a covenant to maintain division fences will run with the land. Hazlett v. Sinclair, 76 Ind. 488.

Covenant as to Manner of Construction of Road

bed of Railway. - In St. Louis, etc., R. Co. v. O'Baugh, 49 Ark. 418, it was held that a covenant by a railway company to build its tracks above the overflow ran with the land benefited and entitled a widow as temporary owner to sue for breach thereof. See also Peden v. Chicago, etc., R. Co., 73 Iowa 328, 5 Am. St. Rep. 680, wherein it was held that a covenant by a railway company in the grant of its right of way, to drain the surface water in a certain way, inured to the benefit of a subsequent grantee of the land retained by the grantor.

2. Covenantee Must Be Owner of Land Benefited. - Shaber v. St. Paul Water Co., 30 Minn. 179. In Spencer's Case, 5 Coke 18, 1 Smith's L. Cas. 68, it was said that it was adjudged in 2 Hen. IV. 6, b, that where a covenant was made to say divine service in the 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 does not belong to the covenantee.

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3. Collateral Benefits to Land Insufficient. Lyford v. North Pac. Coast R. Co., 92 Cal. 93; Wiggins Ferry Co. v. Ohio, etc., R. Co., 94 İll. 83; Brewer v. Marshall, 18 N. J. Eq. 337. Collateral Covenants - Meaning of Term. Vernon v. Smith, 5 B. & Ald. 1. 7 E. C. L. 3, Best, J., said: By the terms' collateral covenants which do not pass to the assignee are meant such as are beneficial to the lessor, without regard to his continuing the owner of the estate. See also Vyvyan v. Arthur, 1 B. & C. 410, 8 E. C. L. 175.

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Covenant for Payment of Money. In Graber v. Duncan, 79 Ind. 565, it was held that a covenant by the grantor to pay certain taxes upon the land conveyed was a personal contract with the grantee, and not a covenant running with the land, and therefore an accord and satisfaction thereof to the grantee while he holds the title discharges the contract so that his assignee cannot recover for its breach. See also Chaplain v. Briscoe, 5 Smed. & M. (Miss.) 198; Mason v. Rogers, 109 Pa. St. 319.

In Cincinnati v. Springer, 23 Cinc. Wkly. L. Bul. 250, however, a covenant that the amount of the condemnation money for a strip of land retained by the grantor, joining the lot con

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Not Necessarily for Performance of Act on the Land. - The covenant, however, need not be for the performance of an act upon the land if the thing covenanted for be for the benefit of the same and tends to increase its value in the hands of the holder.1

c. COVENANTS AS TO QUANTITY. - A covenant that the tract conveyed contains a specific quantity of land stands on the same footing with a covenant of seizin, and is broken, if at all, as soon as made, and does not run with the land.2

d. COVENANTS OF WARRANTY

(1) In General. The covenant of warranty is universally treated in all common-law states as a covenant in futuro, and it is a well-settled rule that such a covenant, until there has been a breach thereof, runs with the land.3

veyed, should, when the strip was condemned, go to the grantee, was held to be a covenant running with the land so as to entitle the heirs of the grantee to the benefit thereof.

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Party-wall Agreement. In Huling v. Chester, 19 Mo. App. 607, it was held that though a party-wall agreement between adjoining landowners, whereby one was to erect the party wall and the other to pay one-half the cost thereof whenever he might use the same, conveyed an easement so as to create the necessary privity of estate, still the benefit of the covenant did not run with the land of the person entitled to receive the money, as it was not to be paid for the benefit of his land. See also Crater v. McCormick, 4 Colo. 196; Gibson v. Holden, 115 Ill. 199, 56 Am. Rep. 146; Bloch v. Isham, 28 Ind. 37, 92 Am. Dec. 287, distinguished in Conduitt v. Ross, 102 Ind. 166; Joy v. Boston Penny Sav. Bank, 115 Mass. 60; Hart v. Kucher, S. & R. (Pa.) 1; Kenny v. Mackenzie, 12 Ont. App. 346. See also the title PARTY WALLS.

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1. Act Not to Be Performed on Land. v. Holden, 115 Ill. 199, 56 Am. Rep. 146; Shaber v. St. Paul Water Co., 30 Minn. 179; Norman v. Wells, 17 Wend. (N. Y.) 136.

In Shaber v. St. Paul Water Co., 30 Minn. 179, the benefit of a covenant between the owner of land upon a creek, embracing a water privilege, and a water company proposing to divert water from a lake out of which the creek flowed, covenanting for the maintenance of a certain stage or volume of water in the lake so that the quantity flowing into the creek should not be diminished, was held to run with the land of the covenantee.

In Norman v. Wells, 17 Wend. (N. Y.) 136, it was held that the benefit of a covenant by the lessor of a mill site, not to establish any other mill upon the stream to be used for the purpose of the mill leased, ran with the land and entitled an assignee to sue thereon.

As to covenants restricting the uses of land and their equitable enforcement, see the title BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS, vol. 5, p. 2.

2. Covenant as to Quantity. - Salmon v. Vallejo, 41 Cal. 481, wherein it was also held that the fact that there was no proof, until long after the conveyance, by which the breach could be established, was immaterial as regards the question whether the covenant ran with the land. See infra, this title, By and Against Whom Enforceable — When Broken upon Delivery of Deed.

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- Logan v. Moulder, 1 Ark. 313, 33 Am. Dec. 338; Ross v. Turner, 7 Ark. 132, 44 Am. Dec. 531. California.

470.

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Blackwell v. Atkinson, 14 Cal.

Connecticut. - Abby v. Goodrich, 3 Day (Conn.) 435; Booth v. Starr, 1 Conn. 244, 6 Am. Dec. 233; Butler v. Barnes, 60 Conn. 170; Mitchell v. Warner, 5 Conn. 497.

Georgia. Leary v. Durham, 4 Ga. 593; Redwine v. Brown, 10 Ga. 311.

Illinois. Brady v. Spurck, 27 Ill. 482; Brown v. Metz, 33 Ill. 339, 85 Am. Dec. 277; Claycomb v. Munger, 51 Ill. 373; Wead v. Larkin, 54 Ill. 489, 5 Am. Rep. 149.

Indiana. - Clark v. Redman, 1 Blackf. (Ind.) 381; Worley v. Hineman, 6 Ind. App. 240; Blair v. Allen, 55 Ind. 409; McClure v. McClure, 65 Ind. 483. Kentucky. - Lot v. Parish, I Litt. (Ky.) 393: Cummins v. Kennedy, 3 Litt. (Ky.) 118, 14 Am. Dec. 45; Bradford v. Long, 4 Bibb (Ky.) 225; Reed v. Hornback, 4 J. J. Marsh. (Ky.) 377; Pence v. Duvall, 9 B. Mon. (Ky.) 48; Thomas v. Bland, 91 Ky. 1.

Maine. Fairbrother v. Griffin, 10 Me. 91; Donnell v. Thompson, 10 Me. 174, 25 Am. Dec. 216; Brown v. Staples, 28 Me. 497, 48 Am. Dec. 504; Allen v. Little, 36 Me. 170; Crooker v. Jewell, 29 Me. 527; Wilson 2. Widenham, 51 Me. 566.

Massachusetts. -White v. Whitney, 3 Met. (Mass.) 81; Wyman v. Ballard, 12 Mass. 306; Sprague . Baker, 17 Mass. 586.

Mississippi. - White . Presly, 54 Miss. 313. Missouri. - Davis v. Burns, 1 Mo. 264; Dickson v. Desire, 23 Mo. 151; Chambers v. Smith, 23 Mo. 174; Magwire v. Riggin, 44 Mo. 512. Nebraska. - Real v. Hollister, 17 Neb. 661. New Hampshire. - Haynes v. Stevens, 11 N. H. 28; Fletcher v. Chamberlin, 61 N. H. 438; Moore v. Merrill, 17 N. H. 75, 43 Am. Dec. 593; Chandler v. Brown, 59 N. H. 370.

New Jersey. - Carter v. Denman, 23 N. J. L. 260; Chapman v. Holmes, 10 N. J. L. 20. New York. - Kane v. Sanger, 14 Johns. (N. Y.) 89; Rindskopf v. Farmers' L. & T. Co., 58 Barb. (N. Y.) 36; Town v. Needham, 3 Paige (N. Y.) 546, 24 Am. Dec. 246; Greenvault v. Davis, 4 Hill (N. Y.) 643; Beddoe v. Wadsworth, 21 Wend. (N. Y.) 120; Suydam v. Jones,

(2) Louisiana Rule. - In Louisiana, however, a remote grantee cannot sue upon a covenant of warranty in a deed to his grantor, unless he has taken an express subrogation of his vendor's right of action in warranty.1

e. COVENANTS OF SEIZIN, FOR RIGHT TO CONVEY, AND AGAINST INCUMBRANCES. Covenants of seizin, for right to convey, and against incumbrances, are, according to the doctrines of most jurisdictions, broken as soon as made, and do not, therefore, run with the land. These covenants will be treated in another place in this title.2

f. COVENANTS FOR QUIET ENJOYMENT. - The covenant for quiet enjoyment is a covenant in futuro, and until breach will run with the land.3

g. COVENANTS FOR FURTHER ASSURANCES.—The covenant for further assurances runs with the land, and an action thereon may be brought by the owner of the land at the time when the damages from a breach thereof accrue.

10 Wend. (N. Y.) 180, 25 Am. Dec. 552; Withy v. Mumford, 5 Cow. (N. Y.) 137; Garlock v. Closs, 5 Cow. (N. Y.) 143, note; Fowler v. Poling, 2 Barb. (N. Y.) 300.

North Carolina. - Markland v. Crump, I Dev. & B. L. (18 N. Car.) 94, 27 Am. Dec. 230; Williams v. Beeman, 2 Dev. L. (13 N. Car.) 483; Lewis v. Cook, 13 Ired. L. (35 N. Car.) 196. Ohio.- Williams v. Holcomb, 4 Cinc. Wkly. L. Bul. 1147; King v. Kerr, 5 Ohio 156, 22 Am. Dec, 777.

Pennsylvania. Le Ray de Chaumont v. Forsythe, 2 P. & W. (Pa.) 507; Whitehill v. Gotwalt, 3 P. & W. (Pa.) 313.

South Carolina. M'Crady v. Brisbane, I Nott & M. (S. Car.) 104, 9 Am. Dec. 676. Tennessee. Lawrence v. Senter, 4 Sneed (Tenn.) 52; Pile v. Benham, 3 Hayw. (Tenn.) 176: Galliher v. Galliher, 10 Lea (Tenn.) 23; Kenney v. Norton, 10 Heisk. (Tenn.) 384; Hopkins v. Lane, 9 Yerg. (Tenn.) 79.

Texas. Flaniken v. Neal, 67 Tex. 629. See also Cassidy's Succession, 40 La. Ann. 827 (announcing the rule in Texas).

Vermont. Williams v. Wetherbee, I Aik. (Vt.) 233: Russ v. Steele, 40 Vt. 310; Clark v. Winchell, 53 Vt. 408; Wilder v. Davenport, 58 Vt. 642; Tillotson v. Prichard, 60 Vt. 94, 6 Am. St. Rep. 95.

Implied Warranty in Partition. The implied warranty in the partition of land, however, only runs in favor of the tenants and their heirs, and not in favor of a purchaser of the land. Jones v. Bigstaff, 95 Ky. 395, 44 Am. St. Rep. 245. See also Sawyers v. Cator, 8 Humph. (Tenn.) 280, 47 Am. Dec. 608.

Express Warranty in Partition. When, however, deeds in partition between cotenants contain express covenants of warranty, they will run with the land. Nunnally . White, 3 Metc. (Ky.) 584.

Covenantor Not in Possession. In Worley v. Hineman, 6 Ind. App. 240, it was held that where mortgaged and situated in another state is sold with covenants of warranty, such covenant will run with the land though the grantor did not have possession of the land, provided he was in a position to give possession to the

Covenantee.

Covenant Broken. — Of course the covenant of warranty becomes a mere chose in action after breach, and will no longer run with the land. Moore v. Merrill, 17 N. H. 75, 43 Am. Dec. 593; Peters v. Bowman, 98 U. S. 56.

1. Louisiana Rule.-Cassidy's Succession, 40

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North Carolina. Markland v. Crump, I
Dev. & B. L. (18 N. Car.) 94, 27 Am. Dec. 230.
South Carolina. - Jeter v. Glenn, 9 Rich. L.
(S. Car.) 374.
Wisconsin. Schwallback v. Chicago, etc.,
R. Co., 69 Wis. 292, 2 Am. St. Rep. 740.

4. Covenant for Further Assurances. - King v. Jones, 5 Taunt. 418; Middlemore v. Goodale, Cro. Car. 503; Bennett v. Waller, 23 Ill. 97; Collier v. Gamble, 10 Mo. 467; Roberts v. Levy,. 3 Abb. Pr. N. S. (N. Y. C. P.) 311; Ernst v. Parsons, 54 How. Pr. (N. Y. Supreme Ct.) 163; Colby v. Osgood, 29 Barb. (N. Y.) 339.

Nominal Breach. In King v. Jones, 5 Taunt. 418, it was held that the covenant for further assurances upon request ran with the land in favor of the heir who was evicted, though the covenantor neglected to levy a fine on a request by the purchaser in his lifetime, and that the heir could sue upon the request by the purchaser and the refusal made to him. See also Spoor v. Green, L. R. 9 Exch. 117; Platt v. Grand Trunk R. Co., 11 Ont. Rep. 246.

It would seem, however, that in the American jurisdictions which hold that a technical breach of a covenant prevents it running with the land, the refusal to levy the fine at the request of the purchaser would have been such a breach as would have prevented the covenant from running with the land.

h. COVENANTS OF NON-CLAIM, AND FOR AFTER-ACQUIRED TITLE TO INURE. A Covenant of non-claim, that is, that neither the covenantor nor those claiming under him will ever claim any interest in the land conveyed, runs with the land.1

4. Covenant as a Grant of an Easement. — A covenant relating to land, though it may not run with the land in the technical sense of the word, may, however, operate as a grant of an easement or impose a servitude upon the land of the covenantor which will bind his land in the hands of subsequent purchasers.2

5. Covenant May Create Lien. — And a covenant relating to land and imposing a burden thereon, though not running with the land, may create a lien thereon, enforceable against the land in the hands of a subsequent purchaser taking with notice of the covenant.3

6. Conflict of Laws. In determining whether a covenant runs with the land the lex rei sitæ governs; 4 but in determining whether a deed contains a certain covenant the lex loci contractus governs.5

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V. BY AND AGAINST WHOM ENFORCEABLE 1. Remote Grantors and Grantees a. IN GENERAL. - At common law choses in action could not be transferred so as to enable the assignee to maintain an action thereon in his own name, but covenants real were an exception to the rule, and passed with the legal title to the land, vesting in the owner for the time being the right of action for a breach thereof. But such covenants could not pass to assignees as independent contracts; by their connection with an estate in land, and not otherwise, they became transmissible with it."

1. Covenant of Non-claim. White v. Erskine, 10 Me. 306; Fairbanks v. Williamson, 7 Me. 96; Trull v. Eastman, 3 Met. (Mass.) 121, 37 Am. Dec. 126; Kimball v. Blaisdell, 5 N. H. 533, 22 Am. Dec. 476.

Remote Grantee May Set Up Covenant of Nonclaim as Estoppel. In Fairbanks v. Williamson, 7 Me. 96, it was held that where land is conveyed with a covenant that neither the grantor nor his heirs shall claim any estate in the land conveyed, the covenant, though not a technical warranty, is a covenant real which runs with the land, and may be set up by a subsequent grantee to estop the grantor or those claiming under him from claiming the land. But when the covenantor had neither the title nor the possession of the land, the Covenant could not be transferred to the assignee of the grantee so as to enable him to derive any benefit from it. Pike v. Galvin, 29 Me. 187.

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2. Covenant May Operate as a Grant of an Easement. - Willoughby v. Lawrence, 116 Ill. II; Mackey v. Harmon, 34 Minn. 168; Kettle River R. Co. v. Eastern R. Co., 41 Minn. 472; Brewer v. Marshall, 18 N. J. Eq. 337; Mott v. Oppenheimer, 135 N. Y. 312; Norfleet v. Cromwell, 64 N. Car. 1; West Virginia Transp. Co. v. Ohio River Pipe Line Co., 22 W. Va. 633, 46 Am. Rep. 527.

For a discussion of this subject see the title, EASEMENTS.

3. Covenant May Create Lien. Fresno Canal, etc., Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112. In this case an owner of land agreed to take water from an irrigation company and pay annual amounts therefor, the agreement stipulating that the covenants therein should run with the land. It was held that the contract was a lien on the land which was en

forceable against subsequent purchasers with notice.

In Des Moines, etc., R. Co. v. Wabash, etc., R. Co., 135 U. S. 576, it was held that an agreement for the arrangement of traffic between two companies, providing that damages for the breach of the agreement shall be a continuing lien upon the lines of the two parties, will not constitute a lien running with the several railroad lines.

4. Lex Rei Sitæ. — In Fisher v. Parry, 68 Ind. 465, it was held that in determining whether a covenant runs with the land so as to entitle a subsequent grantee to sue for a breach thereof the lex rei sita governs. See also Cassidy's Succession, 40 La. Ann. 827.

5. Lex Loci Contractus. - In Bethell V. Bethell, 54 Ind. 428, 23 Am. Rep. 650, it was held that the lex rei sita did not govern in determining whether a deed containing the words

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grant, bargain, sell, and convey," implied a covenant of seizin, and hence that a deed executed in Indiana conveying land situated in Missouri did not contain a covenant of seizin. 6. Lydick v. Baltimore, etc., R. Co., 17 W. Va. 427.

7. Covenants Pass by Connection with Estate. Originally, the common law did not permit the assignment of things in action, and it followed that a covenant, regarded from the direction of a contract, could not pass beyond the covenantee. But the old warranty seems to have been viewed rather as an incident of than as pertaining to the estate conveyed, and was attached to that estate. It could not pass to assignees as an independent contract, but by its connection with an estate in land became transmissible with it. Out of that peculiarity sprang the necessity of privity of estate to enable the subsequent assignee to vouch, or call

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