At common law, covenants affecting leasehold interests are said to "run with the land, and not with the reversion"; that is to say, they pass upon an assignment of the lease, but not upon an assignment or transfer of the reversion. If a lessee assigns his lease, the assignee, in certain cases, will be bound to the landlord by the same liabilities, and entitled to the same rights, as his assignor. The extent to which this is so may be stated thus:
(1) Covenants in a lease which "touch and concern the thing demised" 95 pass to the lessee's assignee, and it is not necessary
94 Following substantially Anson, Cont (4th Ed.) 232.
95 As to the meaning of this term, see Masury v. South worth, 9 Ohio St S41; Wiggins Ferry Co. v. Railroad Co., 94 111. S3; Norman v. Wells, 17 Wend. (N. Y.) 136; Peden v. Railway Co., 73 Iowa, 32S, 35 N. W. 424, 5 Am. St Rep. 680; Kettle R. R. Co. v. Railway Co., 41 Minn. 461, 43 N. W. 469, 6 L. R. A. 1ll; Norfleet v. Cromwell, 70 N. C. 634, 16 Am. Rep. 787; Pittsburgh, Ft. W. & C, R. Co. v. Reno, 123 111. 273, 14 N. E. 195; Lyford v. Railroad Co., in such case that the covenants be expressed to have been made with the lessee "and his assigns." Of this class are covenants to repair, or to leave in good repair, or to deal with the land in any specified manner. Such covenants touch and concern the land, which is the thing demised.96
(2) Covenants in a lease which touch and concern the thing demised, but relate to something not in existence at the time of the lease, pass to the lessee's assignee only where the covenant is expressly made with the lessee "and assigns." 97
(3) In no case does the assignee of a lease acquire benefit or incur liability from merely personal or collateral covenants made between the lessee and landlord. For instance, where a lessee of land covenanted to use the premises as a schoolhouse, and the lessor covenanted not to build or keep any house for the sale of intoxicating liquor within a certain distance of the premises, it was held that the benefit of the lessor's covenant did not pass to the assignee of the lease.98
92 Cal. 93, 28 Pac. 103. See "Landlord and Tenant," Dec. Dig. (Key-No.) § 44; Cent. Dig. §§ 108-110.
96 Spencer's Case, 1 Smith, Lead. Cas. 168, and cases collected in note; GOR-DON v. GEORGE, 12 Ind. 408, Throckmorton Cas. Contracts, 328; Norman v. Wells, 17 Wend. (N. Y.) 136; Suydam v. Jones, 10 Wend. (N. Y.) 180, 25 Am. Dec. 552; Leppla v. Mackey, 31 Minn. 75, 16 N. W. 470; Donelson v. Polk, 64 Md. 501, 2 Atl. 824; Demarest v. Willard, 8 Cow. (N. Y.) 206; Callan v. McDaniel, 72 Ala. 96; Post v. Kearney, 2 N. Y. 394, 51 Am. Dec. 303; Fitch v. Johnson, 104 111. 1ll; Coburn v. Goodall, 72 Cal. 498, 14 Pac. 190, 1 Am. St. Rep. 75. See "Landlord and Tenant," Dec. Dig. (Key-No.) § 152; Cent. Dig. § 552.
97 Minshull v. Oakes, 2 Hurl. & N. 808; Spencer's Case, 1 Smith, Lead. Cas. 168; Hansen v. Meyer, 81 111. 321, 25 Am. Rep. 282; Newburg Petroleum Co. v. Weare, 44 Ohio St. 604, 9 N. E. 845; Bailey v. Richardson, 66 Cal. 416, 5 Pac. 910; Coffin v. Talman, 8 N. Y. 465; Tallman v. Coffin, 4 N. Y. 134; Mas-ury v. Southworth, 9 Ohio St. 340; Dorsey v. Railroad Co., 58 111. 65; Cronin v. Watkins, 1 Tenn. Ch. 119; Bream v. Dickerson, 2 Humph. (Tenn.) 126; Hartung v. Witte, 59 Wis. 285, 18 N. W. 175. See "Landlord and Tenant," Dec. Dig. (Key-No.) § 44; Cent. Dig. §§ 108-110.
98 Thomas v. Haywood, L. R. 4 Exch. 311. The lessee cannot, by assigning the lease, release himself from his express covenants - as to pay rent. He cannot escape this liability without the landlord's consent, and the latter's mere assent to the assignment does not amount to a release. Pfaff v. Golden, 126 Muss. 402; Oswald v. Fratenburgh, 36 Minn. 270, 31 N. W. 173; Green-leaf v. Allen. 127 Mass. 248; Nova Cesarea Harmony Lodge No. 2 v. White, 30 Ohio St. 569, 27 Am. Rep. 492; Harris v. Heackinan, 62 Iowa, 411, 17 N. W. 592; Wilson v. Gerhardt, 9 Colo. 585, 13 Pac. 705; Ghegan v. Young, 23 Pa. 18. If the landlord accepts the sublessee as tenant, and releases the lessee, it is otherwise. See Colton v. Gorham, 72 Iowa, 324, 33 N. W. 76. See "Landlord and Tenant," Dec. Dig. (Key-No.) §§ 44, 152, 208; Cent. Dig. §§ 108-110. 552, 821.
At common law, the assignment of his interest by the reversioner or landlord does not convey his rights and liabilities to his assignee. The law in this respect, however, was changed in England by a statute in the reign of Henry VIII," under which the assignee of the reversion is enabled to take the benefits and also incurs the liabilities of covenants entered into with his assignor. This statute is recognized as a part of the common law in some of our states, while in others similar statutes have been enacted.1 The rules as to the connection of the covenants with the thing demised apply to such as run with the reversion equally with those that run with the land; that is to say, they must "touch and concern the thing demised," and not be merely personal or collateral.2