This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Even at Common Law, although contract rights as a general rule could not be assigned, contracts which were intended by the parties to operate between them solely because of their respective estates in or relation to certain realty would pass from the owner of such estate to his grantee. If a covenant would pass to the assignee of the reversion, it was said to run with the reversion. A covenant was said to run with the land when it ' was binding upon any grantee to whom the original grantee might convey the land.1 To be distinguished from these two classes of contracts are those which are intended to operate between the parties thereto without reference to their estates in realty, though such contract may be part of the transaction whereby such realty is conveyed by one party to the other. Such covenants are said to be personal covenants.2 A right of action on a covenant running with the land cannot be assigned apart from the land.3 So if A conveys to B by warranty deed, and B conveys to C without warranty, C may enforce A's warranty. B cannot retain the benefit of such covenant apart from the land, nor can he assign it without such realty.4 To run with the land the covenant must show in some form the intent that it shall inure to the benefit of ultimate grantees. However, if the habendum clause is to the grantee, his heirs and assigns, a covenant of warranty will run with the land even if the word "assigns" is not in the covenant.5 It is generally said that covenants must "touch and concern" the realty conveyed in order to run with the land. A contract not contained in a conveyance of some estate in realty cannot run with the land.6 Covenants of warranty,7 for quiet, enjoyment,8 that grantor and those claiming under him would never claim any interest or esate in the land conveyed,9 a contract by an adjoining lot owner to pay the other one half the cost of constructing a party wall when he should make use of it,10 a contract to operate a street railroad,11 or to build a side-track,12 and a covenant to erect a depot in consideration of a grant of a right of way,13 run with the land up to the time that they are broken. A covenant of right to convey,14 or a covenant of seizin/5 or a covenant against encumbrances,16 are each by the weight of authority broken when made, if at all, and therefore cannot run with the land. In England17 and in some American jurisdictions18 such covenants are held to be continuing covenants and to run with the land. This question is complicated with considerations of what constitutes a breach.
3 Blakistone v. Bank, 87 Md. 302; 39 Atl. 855; Herter v. Goss, etc., Co., 57 N. J. L. 42; 30 Atl. 252.
4 Herter v. Goss, etc., Co., 57 N. J. L. 42; 30 Atl. 252; Greene v. Duncan, 37 S. C. 239; 15 S. E. 956.
5 Williams v. Gallyon, 107 Ala. 439; 18 So. 162; Moody v. New-mark, 121 Cal. 446; 53 Pac. 944.
6 Smith v. Trust Co., 12 App. D. C. 192; Baker v. Dobbins, 87 Ga. 545; 13 S. E. 524.
7 Lyman v. Ry., 190 111. 320; 52 L. R. A. 645; 60 N. E. 515; Hickey v. Ry., 51 O. S. 40; 46 Am, St. Rep. 545; 23 L. R. A. 396; 36 N. E. 672.
2 Lisenby v. Newton, 120 Cal. 571; 65 Am. St. Rep. 203; 52 Pac. 813; Lincoln v. Burrage, 177 Mass. 378; 52 L. R. A. 110; 59 N. E. 67; Brown v. Southern Pacific Co., 36 Or. 128; 78 Am. St. Rep. 761; 47 L. R. A. 409; 58 Pac. 1104; Clement v. Bank, 61 Vt. 298;' 4 L. R. A. 425; 17 Atl. 717.
3 Ravenal v. Ingram, 131 N. C. 549; 42 S. E. 967.
4Ravenal v. Ingram, 131 X. C. 549; 42 S. E. 967.
5 Wiggins v. Pender, 132 X. C. 628; 61 L. E. A. 772; 44 S. E. 362.
6 Hurxthal v. Boom Co., 53 W. Va. 87; 97 Am. St. Rep. 954; 44 S. E. 520.
7 Peters v. Bowman, 98 U. S. 56; Wead v. Larkin, 54 I11. 489; 5 Am. Bep. 149; Asher Lumber Co. v. Cornett (Ky.), 63 S. W. 974; Thomas v. Bland, 91 Ky. 1; 14 S. W. 955; Troxell v. Stevens, 57 Neb. 329; 77 X. W. 781; Walton v. Campbell, 51 Neb. 788; 71 N. W. 737; King v. Kerr, 5 Ohio 154; 22 Am. Dec. 777; Kenney v. Norton, 10 Heisk. (Tenn.) 384; Tillotson v. Prichard, 60 Vt. 94; 6 Am. St. Bep. 95; 14 Atl. 302; MeConaughey v. Bennett, 50 W. Va. 172; 40 S. E. 540.
8 Butler v. Barnes, 60 Conn. 170; 12 L. E. A. 273; 21 Atl. 419; Fisher v. Parry, 68 Ind. 465; Schwallback v. Ry., 69 Wis. 292; 2 Am. St. Bep. 740; 34 X. W. 128.
9 Trull v. Eastman, 3 Met. (Mass.) 121; 37 Am. Dec. 126.
10 Parsons v. Baltimore, etc., Association, 44 W. Va. 335; 67 Am. St. Rep. 769; 29 S. E. 999; citing Hart v. Lyon, 90 N. Y. 663. But in Lincoln v. Burrage, 177 Mass. 378; 52 L. R. A. 110; 59 X. E. 67, a similar covenant was held not to run with the land in favor of the grantor personally.
11 Lakeview Land Co. v. Traction Co., 95 Tex. 252; 66 S. W. 766.
12 Missouri, etc., Ry. v. Carter, 95 Tex. 461; 68 S. W. 159.
13 Lyman v. Ry., 190 111. 320; 52 L. R. A. 645; 60 X. E. 515.