Eliakim Morse versus Gardner Aldrich et al., 19 Pick. 449

' Wilde J. afterward drew up the opinion of the Court. The defendants are charged as the heirs of Stephen Cook, their ancestor, with the breach of a covenant made by him with the plaintiff, and the question submitted to the Court is, wli'ether this covenant is such as is binding upon the heirs of thé'covenantor ?

And the decision of this question depends on another, namely, whether the covenant is a real covenant, running with the land, which the defendants inherit from their ancestor, the covenantor ? ' It is" generally true, as has been argued by the defendants’ zounsel, that, by the principles of the common law, the heir is not bound by the covenant of his ancestor, unless it be stipulated by the terms of the covenant, that it shall be performed by the heir ; and unless assets descend to him from his ancestor sufficient to answer the charge. Platt on Cov. 449; Dyer 14 a, 23 a; Barber v. Fox, 2 Saund. 136.

If therefore the heir be not named in the covenant, it will be binding only on the covenantor, his executors and administrators, although the heir may take by descent from the covenantor assets sufficient to answer the claim. But this principle is not to be applied to real covenants running with the land granted or demised, and to which the covenants are attached for the purpose of securing to the one party the full benefit of the grant or demise, or to the other party the consideration on which the grant or demise was made.

Such covenants are said_ to be inherent in the land, and will bind the heir or the assignee though not named. For as he is entitled to all the advantages arising from the grant or demise, it is but reasonable that he should sustain all such burdens as are annexed to the land. Platt on Cov. 65. When a covenant is said to run with the land, it is obviously implied that he who holds the land, whether by descent from the covenantor, or by his express assignment, shall be bound by the covenant.

Tfie heir may be charged as an assignee, for he is an assignee in law, and so an executor may be charged as the assignee of the testator. Derisley v. Custance, 4 T. R. 75; Jac. Law Dict. Assigns. And a devisee may be charged in the like manner, and is entitled to the benefit of any covenant running with the land. Kingdon v. Nottle, 4 Maule & Selw. 53. If then the covenant in question runs with the land, it is clear that the defendants are liable ; and it is immaterial whether the heirs and assigns of the covenantor are naméd in the covenant, or not, quia transit terra cum onere. Bally v. Wells, 3 Wils. 29.

To create a covenant which will run with the land, it is necessary that there should be a privity of estate between the covenantor and covenantee. Spencer’s case, 5 Co. 16; Cole’s case, Salk. 196; 3 Wils. 29; Webb v. Russell, 3 T. R. 402; Keppell v. Bailey, 2 Mylne & Keen, 517; Vyvyan v. Arthur, 1 Barn. & Cressw. 410.

In these cases, and in most of the cases on the same subject, the covenants were between lessors and lessees ; but the same privity exists between the grantor and grantee, where a grant is made of any subordinate interest in land ; the reversion or residue of the estate being reserved by the grantor, all covenants in support of the grant, or in relation to the beneficial enjoyment of it, are real covenants anil will bind the assignee. This principle is decisive of the present action.

It appears by the deed of Stephen Cook, the defendants’ ancestor, to William Hull, that the former conveyed to the latter a tract of land adjoining the mill pond in question, “ with the full and free privilege of using and improving the said mill pond within certain limits, with the full liberty of ingress and egress, to dig out and carry away the whole or any part of the soil in said pond, and to divide the same pond, as described in the deed, into six separate and distinct fish ponds.” William Hull conveyed the premises to the plaintiff; after which, disputes arose between Cook and the plaintiff relative to their respective rights, and for settling the same they entered into sundry covenants in relation to said grant, and qualifying the same ; for the breach of one of which this action was brought.

At the time these covenants were made, there was a privity of estate between the parties in that part of the mill pond described in the grant to Hull. The covenant in ques-was made in reference to the plaintiff’s right and interest under that grant, and was manifestly intended to confirm it, and to secure the plaintiff in the enjoyment thereof. This covenant therefore, upon the principles stated, is a real covenant, running with the land, and is binding on the heirs of the covenantor. Judgment on the verdict.