Henry Kellogg vs. Sussanah Robinson, 6 Vt. 276

The opinion of the court was pronounced by Phelps, J. — The sufficiency of this declaration depeuds upon the inquiry, whether it shows, upon its face, a subsisting legal incumbrance upon the land conveyed. It is argued on one side, that the “ stipulation,” as it is termed, in the deed from David Robinson to Noah Smith is in the nature of a mere personal covenant between the parties to that deed, not running with the land, nor binding upon the subsequent grantees.

On the other hand, it is insisted, that the obligation attends the inheritance, and is of course an incumbrance upon the land, into whatever hands it may pass. There are certain covenants concerning the realty so necessarily connected with it as to pass with it of necessity, and operate between other parties than the original parties to the covenant.

Of this nature is the covenant of warranty in the deed of bargain and sale — a covenant against waste — a covenant to repair buildings — a covenant not to cut timber, or plough up meadow land, and the like. \ The reason why these covenants run with the land is, that unless they do so, they cannot be effectual; nor can the party for whose benefit they are created derive from them the benefit intended. There is another class of covenants of a doubtful or equivocal character, and which may be treated either as merely personal, or as annexed to and running with the land.

With respect to these, it is doubtless competent for the contracting parties, to make them either the one or the other, as they think expedient. When, therefore, the party covenants for himself and his as- ■ signs, it evinces an intent to bind the land, and the obligation becomes connected with, and qualifies his estate.

Thus it is "said, in Spencer’s case, (5 Coke’s Rep. 16,) “iflessee covenants for himself and his assigns, to build a new wall upon the land, this shall bind the assignee, because named, and he is to taJce the benefit thereof ' The latter part of this reason, however, has reference to another class of cases, where the thing covenanted for has no necessary connection with the land, and with respect to which no tenant could legally bind another.

Thus it is said by Coke, “ But although the covenant be for himself and his assigns, yet it is otherwise, if the thing to be done be merely collateral to the land and not concerning the thing demised in any sort, as a covenant to build a house, upon the land of the lessor, not parcel of the demise.” It seems therefore, that with respect to the question, whether a given covenant runs with the land or not, the nature and purpose of the covenant is the. first criterion, and, where this is not decisive, the intent of the parties, as expressed in their deed, will determine. “ When,” says Ld.

Coke, “ the covenant extends to a thing in esse parcel of the demise, the thing to be done is in a manner annexed and appurtenant to the thing demised, and shall run with the land, and shall bind the assignee, although he be not bound by express words; — as if the lessee covenant to repair houses,” &c. But if the thing be collateral, as he expressed it, and not concerning the land, the assignee is not bound if named-. What then is the nature of the “ stipulation” or covenant in question?

It is thus set forth in the declaration : “And the said Henry further says, that in the deeds of said premises from David Robinson to Noah Smith, dated in 1783 and 1797, is contained a stipulation that the said Noah is to make the whole of the fence, and to maintain the fence around said premises, or that part of said fence adjoining said Robinson’s land.” We take the fence described to be the partition fence between the premises conveyed and David Robinson’s land; and of course necessary to be maintained, for the benefit of the occupier.

The stipulation 'éontains- two parts: 1st, £ To build the fence.’ Whether the obligation thus far would be considered as running with the land, is perhaps somewhat questionable. In Bally vs. Wells, 3 Wils, 25, it is said, that “ if lessee covenants to build a wall, and assigns over his estate, the grantee of the reversion shall have covenant against the assignee, notwithstanding the covenant wants the word ‘ assignsyet every assignee, by accepting the possession, hath made himself subject to all covenants concerning the land, but not to collateral covenants.

So, for a covenant which runs with the land, an action lies for or against tire assignee, although not namedj quia terra transit cum onere.” Upon the authority of that case, the obligation would be held to run with the land. But it is not necessary to decide this point, as that part of the covenant has probably been long since at an end. The second part of the stipulation is, {to maintain the fence,’ &c. This is an obligation in perpetúan. That it concerns the land, and is not “collateral,” is not to be questioned.

It is equally clear, that Robinson, the covenantee, could not have the full benefit of it, unless it runs with the land. It is npt to be supposed, that the parties intended Smith should be bound after parting with the land, nor that the obligation to maintain the fence should cease with a transfer of the estate. Besides, where is the distinction between a covenant to repair houses, (the case put by Coke,) and a covenant to maintain the fences ? Where the covenants run in perpetúan, there can be no difference.

It is argued, that the fence not being in esse at the date of the covenant, the latter does not run with the land. The decision in Wilson conflicts with this argument. At the saqie time, such a covenant certainly concerns the land, a thing in esse. The maintenance of fences is necessary to the enjoyment of the estate. And the objection is no better founded than a similar objection to a covenant to repair houses would be, upon the -ground that the particular separations were not in esse at the date of the covenant. If we consider the' fence itself as the principal thing, yet the argument has no better foundation.

The first part of this stipulation is satisfied by building the fence: then comes the latter part, to maintain it; which, when it becomes operative, concerns a thing in esse. It has reference to a thing contemplated as existing, and which must actually exist when the covenant takes effect. If we regard the stipulation in the light of a condition of the grant, and in a deed poll, it could hardly be otherwise — all difficulty vanishes. If it be a condition, instead of a .covenant,, whoever takes the estate, takes it cum oncre.

We are of opinion upon the question, that a covenant in a convey-anee, to buil.d and maintain the fences, runs with the land. There is, however, another objection to this declaration, which is not so easily obviated. Admitting that the deed from David Robinson to Noah Smith created an incumbrance upon the land in the hands of Smith, yet this declaration shows no privity in estate between him and either of these parties. It is not alleged that the defendant derived her title from N.

Smith, nor are any facts stated, from which it appears that she, or her grantee, the plaintiff, are privy to, or bound by the terms of that deed. For aught that appears, the title of the defendant, and which she conveyed to the plaintiff might have been derived from a different source, and might have been adverse to the title of Robinson. For this reason the declaration is most decidedly bad. Judgment that the declaration is insufficient. The plaintiff on motion, had leave to amend.