This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In England it is apparently the law that the burden of a covenant by the owner of land in fee simple, made with one other than his lessee, will not run so as to be enforceable against a transferee of the land.12 In this country, on the other hand, there are a number of decisions to the effect that covenants by the owner of land will bind transferees of the land,13 though in a few
11a. See 1 Tiffany, Landlord & Ten. p. 885. That transfer of the land after breach does not transfer the right of action for such breach, see Gulf Coast & Coke Co. v. Musgrove, 195 Ala. 219, 70 So. 179.
12. Pollock, Contracts (7th Ed.) 237; 1 Smith, Lead. Cas. (10th Ed.) 75-85. See Brewster v. Kidgill, 12 Mod. 166; Brewster v. Kitchin, 1 Ld. Raym. 317; Keppel v. Bailey, 2 Mylne & K. 517; Austerberry v. Corporation of Oldham, 29 Ch. Div. 750.
13. Robbins v. Webo, 68 Ala. 393; Gilmer v. Mobile, & M. R. Co., 79 Ala. 569; Alderson v. Cutting, 163 Cal. 503, 126 Pac. 157 (semble); Hottell v. Farmers' Protective Ass'n, 25 Colo. 67, 71 Am. St. Rep. 109, 53 Pac. 327; Georgia Southern R. Co. v. Reeves, 64 Ga. 492; Dorsey v. St. Louis A., &.T. H. R. Co., 58 111. 65.; Fitch v. Johnson, 104 111. 1ll; Hazlett v. Sinclair, 76 Ind. 488, 40 Am. Rep. 254; Conduitt v. Ross, 102 Ind. 166, 26 N. E. 198; Sexauer v. Wilson, 136 Iowa, 357, 14 L. R. A. (N. S.) 185, 15 A.
& E. Ann. Cas. 54, 113 N. W. 941; Ranney v. Childs, 96 Kan. 483, 152 Pac. 621; Sutton v. Head, 86 Ky. 156, 9 Am. St. Rep. 274, 5 S. W. 410; Chesapeake & Ohio Ry. Co. v. May, 157 Ky. 708, 163 S. W. 1112. De Logny's Heirs v. Mercer, 43 La. Ann. 205 (semble); Leader v. Laflamme, 111 Me. 242, 88 Atl. 859; Phoenix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400 (dictum); Dexter v. Beard, 130 N. Y. 549, 29 N. E. 983; Denman v. Prince, 40 Barb. (N. Y.) 213; Dey v. Prentice, 90 Hun (N. Y.) 27, 35 X. Y, Supp. 563; Easter v. Little Miami R. Co., 14 Ohio St. 48 (dictum); Huston v. Cincinnati, & Z. R. Co., 21 Ohio St. 236; Pittsburg, C. & St. L. Ry. Co. v. Bosworth, 46 Ohio St. 81, 2 L. R. A. 199, 18 X. E. 533 (dictum); Hickey v. Lake Shore, & M. S. Ry. Co., 51 Ohio St. 40, 23. L. R. A. 396, 46 Am. St. Rep. 545, 36 N. E. 672 (dictum) St. Andrews' Church Appeals, 67 Pa. St. 512; Landell v. Hamilton, 175 Pa. St. 327, 34 L. R A. 227, 34 Atl. 663; Electric City Land & Improvement Co. v. West Ridge Coal
2 R. P. - 14 states the English view appears to have been adopted.14 Occasionally a covenant of an affirmative character appears to have been regarded as enforcible in equity, on the same theory on which negative or restrictive
Co., 187 Pa. St. 500, 41 Atl. 458; Wooliscroft v. Norton, 15 Wis. 198. Crawford v. Witherbee, 77 Wis. 419, 9 L. R. A. 561, 46 N. W. 545.
14. West Virginia Transportation Co. y Ohio River Pipe Line Co., 22 W. Va. 600; Brewer v. Marshall, 18 N. J. Eq. 337, 19 N. J. Eq. 537 (dictum); Tardy v. Creasy, 81 Va. 553, 59 Am. Rep. 676; Costigan v Pennsylvania R. Co., 54 N. J. L. 233, 23 Atl. 810; Lynn v. Mount Savage Iron Co., 34 Md. 603 (semble).
It has been said quite recently, by the New York Court of Appeals, that the burden of a covenant will not ordinarily run with the land, two or three covenants being however referred to as exceptions to this rule. Miller v. Clary, 210 N. Y. 127, 103 N. E. 1115. Compare Morehouse v. Woodruff, 218 N. Y. 494, 113 N. E. 512.
In Massachusetts, apart from the cases of landlord and tenant, the burden of a covenant will not run with the land, as a general rule, it has been said, unless "the covenant either creates a servitude or a restriction in the nature of a servitude in favor of a neighboring parcel, or else is in some way incident to and inseparable from such a servitude; or, if attached to the dominant estate, appears to be the quid pro quo for the easement enjoyed." Holmes, S. J., in Lincoln v. Burrage, 177 Mass. 378, 52 L. R. A. 110, 59 N. E. 67;. Compare Norcross v. James, 140 Mass. 188, 2 N. E. 946. Morse v. Aldrich, 19 Pick. (Mass.) 449, and Bronson v. Coffin, 108 Mass. 175, 118 Mass. 156, 11 Am. Rep. 335, which seem to favor the running of the burden. The later decisions in this state upon this subject, especially those in which the opinion of the court was delivered by Holmes, C. J., are in accord with the views expounded by him in his work "The Common Law," pp. 392-406.
14. Gilmer v. Mobile, & M. Ry. Co., 79 Ala. 569, 58 Am. Rep. 623; Bartlett v. State, - Ind. -, 114 N. E. 692; Louisville H. & St. L. Rwy Co. v. Baskett, - (Ky.) - , 121 3. W. 957; Kneale v. Price, 29 Mo. App. 227; Bur-bank v. Pillsbury, 48 N. H. 475; Pittsburg C, & St. L. Ry. Co. v. Bosworth, 46 Ohio St. 81, 2 L. R. A. 199, 18 N. E. 533.
In Carnegie Realty Co. v. Carolina C, & O. Ry. Co., 136 Tenn. 300, 189 S. W. 371, it was held that a transfer did not impose the burden of the covenant on the transferee if the latter did not make any claim under the transfer and did not take possession. This does not accord with the view ordinarily asserted in connection with the running of covenants in leases. See 1 Tiffany. Landlord & Ten., p. 975.
Covenants are so regarded, as against a purchaser with notice of the covenant.14a
The fact that the burden of a covenant passes to the transferee is not, it would seem, sufficient in itself to relieve the original covenantor from liability thereon, the same principle being applicable as in the case of landlord and tenant.15 In several cases, however, the covenantor has been regarded as immune from liability for violations occurring after he has parted with title, on a construction of the language to this effect, as being in accord with the presumable intention of the parties to the covenant.16
While ordinarily the cases do not assert any requirement that the transferee of land have notice of a covenant made by a previous owner, in order that he may be bound thereby, they occasionally do so;16a and the courts, it is conceived, would be reluctant to impose liability upon one under a covenant of which he had neither actual or constructive notice. Usually the transferee of land would be chargeable with notice of the covenant by reason of the fact that it occurs in a conveyance in the chain of title, or in a conveyance of adjoining land made by a previous owner whose name appears in the chain of title.