The Inhabitants of Plymouth versus Nathaniel Carver, 16 Pick. 183

Putnam J. delivered ‘the opinion of the Court. The plaintiffs must maintain, that the land which was granted to Barnaby and Shurtleff, was originally charged with the payment or performance of this bond, and that it continued so charged in the hands of their assignees, and so in the hands of the defendant; that the original covenantors made a covenant to this effect with the inhabitants of Plymouth in respect of the land.

But it is perfectly clear, that the town of Plymouth had no interest whatsoever in the land granted to Bar naby and Shurtleff, after the conveyance of the same to them The town might have conveyed the land upon a ''ondition. that the grantees should make or maintain the highway, and might have reserved a right of entry for any breach of that duty. But they did no such thing. The only condition they required in the deed, was, that the grantees should give a bond to maintain the highway. The plaintiffs claim to recover upon the writing declared upon, as a covenant which runs with the land.

But with what land is this covenant running ? No right or estate m any land is conveyed by the covenantors to the inhabitants of the town. Nor did the town, in their deed, reserve any right of entry or any interest whatever in the land which they granted to Barnaby and Shurtleff. But on the contrary, the town conveyed the land on a condition, that the grantees would give a bond that they would maintain the highway. The grantees gave a bond to that effect, and thereupon the estate vested in them absolutely.

We think it very clear, that the bond was a personal obligation of the obligors, not subjecting the land which the town had conveyed to them, in any other way than any of the estate of the obligors might be liable to the performance of their personal covenants or obligations. The circumstance, that the obligors bound themselves, their heirs, executors, administrators and assigns, did not give to the town any particular lien or interest in any real estate of the covenantors.

There was no privity in estate between the covenanting parties, which would be necessary to exist in order to the creation of a covenant to run with the land. We are of opinion therefore, that the defendant is not liable, as he is the assignee of the land so granted by the town to Barnaby and Shurtleff, under whom the defendant claims to hold it.