lessees to deter mine lease. ALSO, and it is hereby further declared and agreed, that it Power for shall be lawful for the said C. D., E. F., and G. H., their executors or administrators, at any time during the continuance of the said term hereby granted, on giving twelve calendar months' notice at the least in writing of such purpose and intent to the said A. B., his heirs or assigns (a), before the expiration of any one year of the said term hereby granted, to determine and make void these presents, and thereupon, at the expiration of such notice, the rents, royalties, payments, covenants, stipulations, conditions, and agreements in these presents reserved and contained, by and on the part and respective behalfs of the said C. D., E. F., and G. H., their executors, administrators, or assigns, having been well and faithfully paid, observed, and performed, and the possession of the said hereby demised premises, and all mines, pits, shafts, engines, machinery, erections, and buildings, stock, minerals, ores, and other materials and things then being in, upon, or about the said mines, pits, and other the premises hereby demised, having been peaceably and quietly delivered up to the said A. B., his heirs or assigns, in such and the same manner as is by these presents provided at the expiration or other sooner determination of the said term of twenty-one years; then and in such case, at the expiration of such notice, the said term hereby granted shall cease and these presents become void, any thing hereinbefore contained to the contrary notwithstanding: AND the said A. B. doth hereby for himself, his heirs, executors, and administrators, covenant, promise, and agree, with and to the said C. D., E. F., and G. H., their executors, administrators, and assigns, that they, the said C. D., E. F., and G. H., or some or one of them, their or some or one of their executors, administrators, and assigns, paying the yearly and other rents, royalties, and payments hereinbefore respectively reserved or made payable, at the several days and times hereinbefore appointed for payment thereof, and observing, performing, fulfilling, and keeping all and singular the covenants, provisoes, conditions, stipulations, and agreements in these presents observed, mentioned, and contained respectively, which on the lessees' parts ought (a) See Roe dem. Bamford v. Hayley, 12 East, 444. Covenant by enjoyment. lessor for quiet Penalty upon lessees. to be observed, performed, and fulfilled, paid, and kept. respectively, shall and may peaceably and quietly have, hold, use, occupy, possess, and enjoy the said mines, pits, and premises hereby demised together with the several powers, liberties, privileges, matters, and things hereby respectively granted, for the term hereby granted, (determinable as aforesaid,) without any denial, hinderance, or interruption of, from, or by the said A. B., his heirs or assigns, or any person or persons claiming by, from, or under him or them, or by, from, or under his or their acts, means, consent, or procurement: AND for the due performance of all and every the covenants, stipulations, and agreements, by and on the parts and respective behalfs of the said C. D., E. F., and G. H., their heirs executors, administrators, and assigns, in these presents contained, they, the said C. D., E. F., and G. H., for themselves jointly, and their heirs, executors, and administrators, and each of them severally, for himself, his heirs, executors, and administrators, bind themselves and himself unto the said A. B., his heirs and assigns, in the sum ofl. of lawful current money of England, to be recovered as liquidated damages; (a) and that it shall be sufficient for the said A. B., his heirs or assigns, to give these presents in evidence, in any of her Majesty's courts of record, to recover the same. (b) IN WITNESS, &c. COVENANTS. WHAT COVENANTS RUN WITH THE LAND. A covenant is said to run with the land when either the liability to perform it, or the right to take advantage of it, passes to the assignee of the reversion. A covenant is said to run with the reversion when either the liability to perform it, or the right to take advantage of it, passes to the assignee of the reversion. (a) See antè, vol. iii. p. 104. (b) Where several persons took a lease of mines for the purpose of working them in partnership, and the managing partner became indebted to the concern, his interest in the partnership is in the first place applicable to satisfy his debt to the concern. Fereday v. Wightwick, 1 Ry. & Moo. 45. ; S. C. 1 Taml. 250. There are three relations at the Common Law which may exist between the lessor and lessee, and their respective assignees : First, Privity of Contract. This is created by the contract itself, and subsists for ever between lessor and lessee. After the lessee has assigned over this, privity is not destroyed, although the privity of estate is destroyed and takes effect in the assignee. Secondly, Privity of Estate, which subsists between the lessee or his assignee in possession of the estate, and the assignee of the reversioner. Thirdly, Privity of Contract and Estate, which both exist where the term and reversion remain in the original covenantors. A fourth relation was created by the stat. 32 Hen. 8. c. 34., viz. a Privity of Contract in respect of the Estate, as between the assignees of the reversion and the lessees or their assignees. This statute did not transfer any privity of contract depending upon personal covenants to the assignee of the reversion, nor does it in fact create any privity of estate, but it annexes or rather creates a privity of contract between those who have privity of estate; that is, it annexed to the reversion such covenants only which concerned the land itself as to repair, but not to pay a sum of money at common law; the covenant did not pass by the assignment of the reversion because it was a mere personal contract. 1 Saund. 238.; 3 Mod. 336.; Thrale v. Cornwall, 1 Wils. 165. see Spencer's Case, post, p. 31. LORD COKE considered that an assignee of the reversion could maintain an action of covenant for rent at the common law, for the rent goes with the reversion; and so by consequence the covenant also. Athowe v. Heming, 1 Rep. 81. And Mr. JUSTICE BAYLEY, in Vyvyan v. Arthur, 1 Barn. & Cress. 410., expressed himself of the same opinion in some cases; but in most cases such an action cannot be maintained. To take the benefit of the statute there must be a privity of estate between the parties. In Webb v. Russell (3 Term Rep. 393., post, p.50.), where a mortgagor and mortgagee made a lease, in which the lessee's covenants were only with the mortgagor and his assigns, and the assignee of the mortgagee brought an action against the lessee for breach of covenant in the lease, LORD KENYON said it was extremely well settled at common law, without referring to the stat. 32 Hen. 8. c. 34., that covenants which run with the land will pass to the person to whom the land descends. And that statute enacted for the benefit of the grantees of reversions, that they should have the like advantages against the lessees, their executors, &c. by entry for non-payment of the rent, and should have and enjoy all and every such advantages, benefits, and remedies, by action only, for not performing other conditions, covenants, or agreements contained in the leases, against the lessees, as the lessors or grantors had. The statute also contains a clause, giving the lessees the same remedy against the grantees of the reversion which they might have had against their grantors. Therefore, under this statute, the grantees or assignees stand in the same situation and have the same remedy against their lessees as the heirs at law of individuals, or the successors (in the case of corporations), had before the statute. It becomes, therefore, necessary to inquire whether this action of covenant could have been maintained by the heirs of the person from whom the plaintiff derives her title. It was stated, his lordship said, that Stokes was only a mortgagor, who had parted with his whole term to the mortgagee; and the declaration goes Webb V. Russell. Rule by Lord Kenyon. Explained by on to state that the whole interest which was vested in him he had transferred to the mortgagee. Therefore, in point of law, his lordship could not conceive how this covenant, made with Stokes, can be said to run with the land; for Stokes is stated in the declaration to have no interest whatever in the land, and yet both the implied covenant, arising from the "yielding and paying," and also the express covenants, are entered into with Stokes. It is not sufficient that a covenant is concerning the land, but in order to make it run with the land, there must be a privity of estate between the covenanting parties. But here Stokes had no interest in the land of which a court of law could take notice, though he had an equity of redemption, an interest which a court of equity would take notice of. These, therefore, were collateral covenants. And though a party may covenant with a stranger to pay a certain rent in consideration of a benefit to be derived under a third person, yet such a covenant cannot run with the land. But even supposing that these covenants had been entered into (not with Stokes but) with Webb (the mortgagee), who had an interest in the land, the subsequent transaction which is stated in the declaration puts an end to this question. It appears that the person entitled to the reversion of the ninety-nine years' term (the mortgage term), expectant on the determination of the eleven years' term created by the lease, afterwards acquired in her own person the absolute inheritance of the land, in consequence of which the reversion attendant on the lease granted to the tenant no longer existed. Another estate totally different arose by the extinguishment of the intervening estate. Moore, 94., is very applicable. There a person made a lease for one hundred years, and the lessee made an under lease for twenty years, rendering rent, with a clause of re-entry; afterwards the original lessor granted the reversion in fee, and the grantee purchased the reversion of the term; and it was held, that the grantee should not have either the rent or the power of re-entry, for the reversion of the term to which they were incident was extinguished in the reversion in fee. And though this case was only determined at the assizes, yet it was afterwards recognised in the Court. His lordship then said that, considering these are covenants entered into with a stranger, that do not run with the land; considering also that the rent is incident to the reversion out of which the term is carved, and that that reversion is gone; with all the inclination which the Court had to support the action,--that it cannot be supported. Thus establishing this rule, that there must be a privity of estate between the covenanting parties, to make a covenant run with the land. (See Thorne v. Woolcombe, per LORD TENTERDEN, 3 Barn. & Adol. 591.) Sir Edward Sugden, in observing upon this rule, says, "What LORD KENYON decided was this, that a lessee could not make covenants, entered into by him with a stranger, run with the land, although by their nature they properly would run with it; for there was no question about their running with the reversion, as there was none vested in the covenantee, who was a mortgagor without any estate, the legal reversion upon the lease being vested in the mortgagee, by whom, in conjunction with the mortgagor, this lease was granted. The rule, therefore, denies to a lessee the power to charge the assignee of the lands with covenants entered into with a stranger, however directly relating to the lands." (2 Vend. & Pur. 469.) And in a subsequent case (Stokes v. Russell, 3 Term Rep. 678.), where Stokes, the mortgagor, brought cove nant against the lessee, the Court expressed their clear opinion that Stokes was entitled to recover; and LORD KENYON observed, that the consequence of their opinion in Webb v. Russell, when they held that these covenants, not being made with the person who had the legal estate, did not run with the land, and that the assignee of the mortgagee could not maintain an action on the covenants (and with the legality of which judgment they were perfectly satisfied), was, that these must be considered as covenants in gross, and that of course the mortgagor might maintain an action upon them. See also 2 East, 580., 1 Hen. Black. 362., 3 Barn. & Adol. 591., 3 Co. 23 a. In Spencer's case, 5 Co. 18 a. (see 1 Smith's Lead. Ca. 22.; Spencer's case. Wilm. Op. 344.), it was held that the statute 32 Hen. 8. c. 34. extends only to covenants that run with the land, and not to collateral covenants. That statute does not continue the contract as between the lessor and the lessee; it only continues the contract as annexed to the estate. This is the leading case, and is referred to in all cases where the question arises, whether a covenant runs with the land or with a particular reversion. S. SPENCER and his WIFE brought an action of covenant against CLARK, assignee to J., assignee to S. The case was, Spencer and his wife demised a house and land (in the right of his wife), to S. for twenty-one 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. 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, these points were unanimously resolved by the whole Court, and many differences taken and agreed concerning express covenants, and covenants in law, and which of them would 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. when not. 1. When the covenant extends to a thing in esse, parcel of the de- When a covemise, the thing to be done by force of the covenant is quodammodo nant runs with annexed and appurtenant to the thing demised, and shall go with the the land and land, and shall bind the assignee 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 hath 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, and therefore is quodammodo annexed appurtenant 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, 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 assigns, that they would make a new wall upon some part of the thing demised, that forasmuch as it is to be done upon the |