Sec.

388.

General considerations.

389.

The running of benefits.

390.

The runnings of burdens.

391.

Privity of estate.

392.

The nature of the covenant.

393.

Party wall agreements.

Sec. 388. General considerations

Covenants with the owner of land, which are calculated to render its enjoyment more beneficial, may in some, if not all, cases, be enforced by a subsequent owner of the land; and, on the other hand, covenants made by the owner of land, restricting in some mode the freedom of its enjoyment, may, by some authorities, be enforced against a subsequent owner of the land. Covenants the benefit or burden of which may thus pass to subsequent owners of the land are said to "run with the land." Rights created by such covenants in favor of or against transferees of the land are strictly in personam, and not in rem; but as incidents of the land, following it into the hands of subsequent owners, they are somewhat similar in effect to proprietary rights in another's land such as have been previously discussed, and accordingly call for consideration in this connection.

That covenants in connection with leases run in favor of or against the owner of an estate for life or for years created by the lease, or of the reversion expectant on such estate, is determined, or at leasl confirmed, by the provisions of the statute of 32 Hen. VIII.c. 34. The terms and effect of this statute having been already considered,1 the running of covenants made by or with the owner of land in fee simple not in connection with a lease, will alone be here discussed.

These questions of the assignment of contractual benefits and liabilities by the transfer of the land in connection with which the contract was made have usually been considered in connection with "covenants," strictly so called, that is, contracts under seal. In England, owing to the general practice of sealing formal legal instruments affecting land, the question of the running of a contract not under seal appears not to have been the subject of judicial determination, so far as appears; and the fact that the running of covenants in leases was, by the statute of 32 Hen. 8, expressly confined to covenants in indentures of lease may well have tended to confirm the view that in no case can an agreement not under seal run with the land. In this country there are one or two decisions that a contract not under seal will not run with the land2 and at least one case indicative of a contrary view.3 In any state in which private seals have been abolished or their efficacy destroyed, the fact that a contract is or is not under seal is obviously immaterial upon the question whether it runs with the land.

In the case of a deed poll, - that is, an instrument sealed by one only of the parties thereto, - a stipulation therein on the part of the person not sealing it is, by the weight of authority, regarded as the covenant of such person by reason of his acceptance of the conveyance,4 though there are well-considered opinions to the contrary.5 In order to create a covenant, neither the word "covenant," nor any other particular word, is necessary,6 and words of condition are frequently, as before stated, construed as words of covenant.7 Moreover, words of covenant have been sometimes construed as creating, not a covenant, but an easement,8 or a charge on the land in the nature of a lien.9

1. Ante, Sec. 56(a).

2. Martin v. Drinan, 128 Mass. 515; Kennedy v. Owen, 136 Mass, 199; Poage v. Wabash, St. L. & P. Ry. Co., 24 Mo. App. 199.

3. Burbank v. Pillsbury, 48 N. H. 475. That an oral contract will not run, see St. Louis, A. & T. H. R. Co., v. Todd, 36 111. 409; Guilfoos v. N. Y. Cent. R. Co., 69 Hun (N. Y.) 593, 23 N. Y. Supp. 925; Bartlett v. State, - Ind. -.

114 N. E. 692

4. Co. Litt. 230b, Butler's note; Sheppard's Touchstone, 177; Georgia Southern R. Co. v. Reeves, 64 Ga. 492; Sanitary District of Chicago v. Chicago Title & Trust Co., 278 111. 529, 116 N. E. 161; Midland Ry. Co. v. Fisher, 125 Ind. 19, 8 L. R. A. 694, 21 Am. St. Rep. 189, 24 N. E. 758; Sex-auer v. Wilson, 136 Iowa, 357, 14 L. R. A. (N. S.) 185, 15 A. & E.