[371] (breaks before heading)

The principal contracts known to the common law and suable in the King's Courts, a century after the Conquest, were suretyship and debt. The heir, as the general representative of his ancestor's rights and obligations, was liable for his debts, and was the proper person to sue for those which were due the estate. By the time of Edward III. this had changed. Debts had ceased to concern the heir except secondarily. The executor took his place both for collection and payment. It is said that even when the heir was bound he could not be sued except in case the executor had no assets. /1/

But there was another ancient obligation which had a different history. I refer to the warranty which arose upon the transfer of property. We should call it a contract, but it probably presented itself to the mind of Glanvill's predecessors simply as a duty or obligation attached by law to a transaction which was directed to a different point; just as the liability of a bailee, which is now treated as arising from his undertaking, was originally raised by the law out of the position in which he stood toward third persons.

After the Conquest we do not hear much of warranty, except in connection with land, and this fact will at once [372] account for its having had a different history from debt. The obligation of warranty was to defend the title, and, if the defence failed, to give to the evicted owner other land of equal value. If an ancestor had conveyed lands with warranty, this obligation could not be fulfilled by his executor, but only by his heir, to whom his other lands had descended. Conversely as to the benefit of warranties made to a deceased grantee, his heir was the only person interested to enforce such warranties, because the land descended to him. Thus the heir continued to represent his ancestor in the latter's rights and obligations by way of warranty, after the executor had relieved him of the debts, just as before that time he had represented his ancestor in all respects.

If a man was sued for property which he had bought from another, the regular course of litigation was for the defendant to summon in his seller to take charge of the defence, and for him, in turn, to summon in his, if he had one, and so on until a party was reached in the chain of title who finally took the burden of the case upon himself. A contrast which was early stated between the Lombard and the Roman law existed equally between the Anglo-Saxon and the Roman. It was said that the Lombard presents his grantor, the Roman stands in his grantor's shoes, — Langobardus dat auctorem, Romanus stat loco auctoris. /1/

Suppose, now, that A gave land to B, and B conveyed over to C. If C was sued by D, claiming a better title, C practically got the benefit of A's warranty, /2/ because, when he summoned B, B would summon A, and thus A [373] would defend the case in the end. But it might happen that between the time when B conveyed to C, and the time when the action was begun, B had died. If he left an heir, C might still be protected. But supposing B left no heir, C got no help from A, who in the other event would have defended his suit. This no doubt was the law in the Anglo-Saxon period, but it was manifestly unsatisfactory. We may conjecture, with a good deal of confidence, that a remedy would be found as soon as there was machinery to make it possible. This was furnished by the Roman law. According to that system, the buyer stood in the place of his seller, and a fusion of the Roman with the Anglo-Saxon rule was all that was needed.

Bracton, who modelled his book upon the writings of the mediaeval civilians, shows how this thought was used. He first puts the case of a conveyance with the usual clause binding the grantor and his heirs to warrant and defend the grantee and his heirs. He then goes on: "Again one may make his gift greater and make other persons quasi heirs [of his grantee], although, in fact, they are not heirs, as when he says in the gift, to have and to hold to such a one and his heirs, or to whomsoever he shall choose to give or assign the said land, and I and my heirs will warrant to the said so and so, and his heirs, or to whomsoever he shall choose to give or assign the said land, and their heirs, against all persons. In which case if the grantee shall have given or assigned the land, and then have died without heirs, the [first] grantor and his heirs begin to hold the place of the first grantee and his heirs, and are in place of the first grantee's heir (pro herede) so far as concerns warranting to his assigns and their heirs [374] according to the clause contained in the first grantor's charter, which would not be but for the mention of assigns in the first gift. But so long as the first grantee survives, or his heirs, they are held to warranty, and not the first grantor." /1/

Here we see that, in order to entitle the assign to the benefit of the first grantor's warranty, assigns must be mentioned in the original grant and covenant. The scope of the ancient obligation was not extended without the warrantor's assent. But when it was extended, it was not by a contrivance like a modern letter of credit. Such a conception would have been impossible in that stage of the law. By mentioning assigns the first grantor did not offer a covenant to any person who would thereafter purchase the land. If that had been the notion, there would have been a contract directly binding the first grantor to the assign, as soon as the land was sold, and thus there would have been two warranties arising from the same clause, — one to the first grantee, a second to the assign. But in fact the assign recovered on the original warranty to the first grantee. /2/ He could only come on the first grantor after a failure of his immediate grantor's heirs. The first grantor by mentioning assigns simply enlarged the limits of his grantee's succession. The assign could vouch the first grantor only on the principles of succession. That is to say, he could only do so when, by the failure of the first grantee's blood, the first grantee's feudal relation to the first grantor, his persona, came to be sustained by the assign. /3/

[375] This was not only carrying out the fiction with technical consistency, but was using it with good sense, as fictions generally have been used in the English law. Practically it made little difference whether the assign got the benefit of the first grantor's warranty mediately or immediately, if he got it. The trouble arose where he could not summon the mesne grantor, and the new right was given him for that case alone. Later, the assign did not have to wait for the failure of his immediate grantor's blood, but could take advantage of the first grantor's warranty from the beginning. /1/

If it should be suggested that what has been said goes to show that the first grantor's duty to warrant arose from the assign's becoming his man and owing homage, the answer is that he was not bound unless he had mentioned assigns in his grant, homage or no homage. In this Bracton is confirmed by all the later authorities. /2/

Another rule on which there are vast stores of forgotten learning will show how exactly the fiction fell in with the earlier law. Only those who were privy in estate with the person to whom the warranty was originally given, could vouch the original warrantor. Looking back to the early [376] procedure, it will be seen that of course only those in the same chain of title could even mediately get the benefit of a former owner's warranty. The ground on which a man was bound to warrant was that he had conveyed the property to the person who summoned him. Hence a man could summon no one but his grantor, and the successive vouchers came to an end when the last vouchee could not call on another from whom he had bought. Now when the process was abridged, no persons were made liable to summons who would not have been liable before. The present owner was allowed to vouch directly those who otherwise would have been indirectly bound to defend his title, but no others. Hence he could only summon those from whom his grantor derived his title. But this was equally well expressed in terms of the fiction employed. In order to vouch, the present owner must have the estate of the person to whom the warranty was made. As every lawyer knows, the estate does not mean the land. It means the status or persona in regard to that land formerly sustained by another. The same word was used in alleging a right by prescription, "that he and those whose estate he hath have for time whereof memory runneth not to the contrary," &c.; and it will be remembered that the word corresponds to the same requirement of succession there.

To return to Bracton, it must be understood that the description of assigns as quasi heredes is not accidental. He describes them in that way whenever he has occasion to speak of them. He even pushes the reasoning drawn from the analogy of inheritance to extremes, and refers to it in countless passages. For instance: "It should be noted that of heirs some are true heirs and some quasi [377] heirs, in place of heirs, &c.; true heirs by way of succession quasi heirs, &c. by the form of the gift; such as assigns," &c. /1/

If it should be suggested that Bracton's language is only a piece of mediaeval scholasticism, there are several answers. In the first place it is nearly contemporaneous with the first appearance of the right in question. This is shown by his citing authority for it as for something which might be disputed. He says, "And that warranty must be made to assigns according to the form of the gift is proved [by a case] in the circuit of W. de Ralegh, about the end of the roll,"&c. /2/ It is not justifiable to assume that a contemporary explanation of a new rule had nothing to do with its appearance. Again, the fact is clear that the assign got the benefit of the warranty to the first grantee, not of a new one to himself, as has been shown, and Bracton's explanation of how this was worked out falls in with what has been seen of the course of the German and Anglo-Saxon law, and with the pervading thought of the Roman law. Finally, and most important, the requirement that the assign should be in of the first grantee's estate has remained a requirement from that day to this. The fact that the same thing is required in the same words as in prescription goes far to show that the same technical thought has governed both.

I have said, Glanvill's predecessors probably regarded warranty as an obligation incident to a conveyance, rather than as a contract. But when it became usual to insert the undertaking to warrant in a deed or charter of feoffment, it lost something of its former isolation as a duty standing by itself, and admitted of being [378] generalized. It was a promise by deed, and a promise by deed was a covenant. /1/ This was a covenant having peculiar consequences attached to it, no doubt. It differed also in the scope of its obligation from some other covenants, as will be shown hereafter. But still it was a covenant, and could sometimes be sued on as such. It was spoken of in the Year Books of Edward III. as a covenant which "falls in the blood," /2/ as distinguished from those where the acquittance fell on the land, and not on the person. /3/

The importance of this circumstance lies in the working of the law of warranty upon other covenants which took its place. When the old actions for land gave way to more modern and speedier forms, warrantors were no longer vouched in to defend, and if a grantee was evicted, damages took the place of a grant of other land. The ancient warranty disappeared, and was replaced by the covenants which we still find in our deeds, including the covenants for seisin, for right to convey, against incumbrances, for quiet enjoyment, of warranty, and for further assurance. But the principles on which an assign could have the benefit of these covenants were derived from those which governed warranty, as any one may see by looking at the earlier decisions.

For instance, the question, what was a sufficient assignment to give an assign the benefit of a covenant for quiet enjoyment, was argued and decided on the authority of the old cases of warranty. /4/

[379] The assign, as in warranty, came in under the old covenant with the first covenantee, not by any new right of his own. Thus, in an action by an assign on a covenant for further assurance, the defendant set up a release by the original covenantee after the commencement of the suit. The court held that the assignee should have the benefit of the covenant. "They held, that although the breach was in the time of the assignee, yet if the release had been by the covenantee (who is a party to the deed, and from whom the plaintiff derives) before any breach, or before the suit commenced, it had been a good bar to the assignee from bringing this writ of covenant. But the breach of the covenant being in the time of the assignee, ... and the action brought by him, and so attached in his person, the covenantee cannot release this action wherein the assignee is interested." /1/ The covenantee even after assignment remains the legal party to the contract. The assign comes in under him, and does not put an end to his control over it, until by breach and action a new right attaches in the assign's person, distinct from the rights derived from the persona of his grantor. Later, the assign got a more independent standing, as the original foundation of his rights sunk gradually out of sight, and a release after assignment became ineffectual, at least in the case of a covenant to pay rent. /2/

Only privies in estate with the original covenantee can have the benefit of covenants for title. It has been shown that a similar limitation of the benefits of the ancient [380] warranty was required by its earlier history before the assign was allowed to sue, and that the fiction by which he got that right could not extend it beyond that limit. This analogy also was followed. For instance, a tenant in tail male made a lease for years with covenants of right to let and for quiet enjoyment, and then died without issue male. The lessee assigned the lease to the plaintiff. The latter was soon turned out, and thereupon brought an action upon the covenant against the executor of the lessor. It was held that he could not recover, because he was not privy in estate with the original covenantee. For the lease, which was the original covenantee's estate, was ended by the death of the lessor and termination of the estate tail out of which the lease was granted, before the form of assignment to the plaintiff. /1/

The only point remaining to make the analogy between covenants for title and warranty complete was to require assigns to be mentioned in order to enable them to sue. In modern times, of course, such a requirement, if it should exist, would be purely formal, and would be of no importance except as an ear-mark by which to trace the history of a doctrine. It would aid our studies if we could say that wherever assigns are to get the benefit of a covenant as privies in estate with the covenantee, they must be mentioned in the covenant. Whether such a requirement does exist or not would be hard to tell from the decisions alone. It is commonly supposed not to. But the popular opinion on this trifling point springs from a failure to understand one of the great antinomies of the law, which must now be explained.

So far as we have gone, we have found that, wherever [381] one party steps into the rights or obligations of another, without in turn filling the situation of fact of which those rights or obligations are the legal consequences, the substitution is explained by a fictitious identification of the two individuals, which is derived from the analogy of the inheritance. This identification has been seen as it has been consciously worked out in the creation of the executor, whose entire status is governed by it. It has been seen still consciously applied in the narrower sphere of the heir. It has been found hidden at the root of the relation between buyer and seller in two cases at least, prescription and warranty, when the history of that relation is opened to a sufficient depth.

But although it would be more symmetrical if this analysis exhausted the subject, there is another class of cases in which the transfer of rights takes place upon a wholly different plan. In explaining the succession which is worked out between buyer and seller for the purpose of creating a prescriptive right, such as a right of way over neighboring land to the land bought and sold, it was shown that one who, instead of purchasing the land, had wrongfully possessed himself of it by force, would not be treated as a successor, and would get no benefit from the previous use of the way by his disseisee. But when the former possessor has already gained a right of way before he is turned out, a new principle comes into operation. If the owner of the land over which the way ran stopped it up, and was sued by the wrongful possessor, a defence on the ground that the disseisor had not succeeded to the former owner's rights would not prevail. The disseisor would be protected in his possession of the land against all but the rightful owner, and he would equally be protected [382] in his use of the way. This rule of law does not stand on a succession between the wrongful possessor and the owner, which is out of the question. Neither can it be defended on the same ground as the protection to the occupation of the land itself. That ground is that the law defends possession against everything except a better title. But, as has been said before, the common law does not recognize possession of a way. A man who has used a way ten years without title cannot sue even a stranger for stopping it. He was a trespasser at the beginning, he is nothing but a trespasser still. There must exist a right against the servient owner before there is a right against anybody else. At the same time it is clear that a way is no more capable of possession because somebody else has a right to it, than if no one had.

How comes it, then, that one who has neither title nor possession is so far favored? The answer is to be found, not in reasoning, but in a failure to reason. In the first Lecture of this course the thought with which we have to deal was shown in its theological stage, to borrow Comte's well-known phraseology, as where an axe was made the object of criminal process; and also in the metaphysical stage, where the language of personification alone survived, but survived to cause confusion of reasoning. The case put seems to be an illustration of the latter. The language of the law of easements was built up out of similes drawn from persons at a time when the noxoe deditio was still familiar; and then, as often happens, language reacted upon thought, so that conclusions were drawn as to the rights themselves from the terms in which they happened to be expressed. When one estate was said to be enslaved to another, or a right of way was said to be a quality or [383] incident of a neighboring piece of land, men's minds were not alert to see that these phrases were only so many personifying metaphors, which explained nothing unless the figure of speech was true.

Rogron deduced the negative nature of servitudes from the rule that the land owes the services, not the person, — Proedium non persona servit. For, said Rogron, the land alone being bound, it can only be bound passively. Austin called this an "absurd remark." /1/ But the jurists from whom we have inherited our law of easements were contented with no better reasoning. Papinian himself wrote that servitudes cannot be partially extinguished, because they are due from lands, not persons. /2/ Celsus thus decides the case which I took for my illustration: Even if possession of a dominant estate is acquired by forcibly ejecting the owner, the way will be retained; since the estate is possessed in such quality and condition as it is when taken. /3/ The commentator Godefroi tersely adds that there are two such conditions, slavery and freedom; and his antithesis is as old as Cicero. /4/ So, in another passage, Celsus asks, What else are the rights attaching to land but qualities of that land? /5/ So Justinian's Institutes speak of servitudes which inhere in buildings. /6/ So Paulus [384] speaks of such rights as being accessory to bodies. "And thus," adds Godefroi, "rights may belong to inanimate things." /1/ It easily followed from all this that a sale of the dominant estate carried existing easements, not because the buyer succeeded to the place of the seller, but because land is bound to land. /2/

All these figures import that land is capable of having rights, as Austin recognizes. Indeed, he even says that the land "is erected into a legal or fictitious person, and is styled 'praedium dominans.'" /3/ But if this means anything more than to explain what is implied by the Roman metaphors, it goes too far. The dominant estate was never "erected into a legal person," either by conscious fiction or as a result of primitive beliefs. /4/ It could not sue or be sued, like a ship in the admiralty. It is not supposed that its possessor could maintain an action for an interference with an easement before his time, as an heir could for an injury to property of the hereditas jacens. If land had even been systematically treated as capable of acquiring rights, the time of a disseisee might have been added to that Of the wrongful occupant, on the ground that the land, and not this or that individual, was gaining the easement, and that long association between the enjoyment of the privilege and the land was sufficient, which has never been the law.

All that can be said is, that the metaphors and similes employed naturally led to the rule which has prevailed, [385] and that, as this rule was just as good as any other, or at least was unobjectionable, it was drawn from the figures of speech without attracting attention, and before any one had seen that they were only figures, which proved nothing and justified no conclusion.

As easements were said to belong to the dominant estate, it followed that whoever possessed the land had a right of the same degree over what was incidental to it. If the true meaning had been that a way or other easement admits of possession, and is taken possession of with the land to which it runs, and that its enjoyment is protected on the same grounds as possession in other cases, the thought could have been understood. But that was not the meaning of the Roman law, and, as has been shown, it is not the doctrine of ours. We must take it that easements have become an incident of land by an unconscious and unreasoned assumption that a piece of land can have rights. It need not be said that this is absurd, although the rules of law which are based upon it are not so.

Absurd or not, the similes as well as the principles of the Roman law reappear in Bracton. He says, "The servitude by which land is subjected to [other] land, is made on the likeness of that by which man is made the slave of man." /1/ For rights belong to a free tenement, as well as tangible things.... They may be called rights or liberties with regard to the tenements to which they are owed, but servitudes with regard to the tenements by which they are owed .... One estate is free, the other subjected to slavery." /2/ "[A servitude] may be called an arrangement by which house is subjected to house, farm to [386] farm, holding to holding." /1/ No passage has met my eye in which Bracton expressly decides that an easement goes with the dominant estate upon a disseisin, but what he says leaves little doubt that he followed the Roman law in this as in other things.

The writ against a disseisor was for "so much land and its appurtenances," /2/ which must mean that he who had the land even wrongfully had the appurtenances. So Bracton says an action is in rem "whether it is for the principal thing, or for a right which adheres to the thing, ... as when one sues for a right of way, ... since rights of this sort are all incorporeal things, and are quasi possessed and reside in bodies, and cannot be got or kept without the bodies in which they inhere, nor in any way had without the bodies to which they belong." /3/ And again, "Since rights do not admit of delivery, but are transferred with the thing in which they are, that is, the bodily thing, he to whom they are transferred forthwith has a quasi possession of those rights as soon as he has the body in which they are." /4/

There is no doubt about the later law, as has been said at the outset.

We have thus traced two competing and mutually inconsistent principles into our law. On the one hand is the conception of succession or privity; on the other, that of rights inhering in a thing. Bracton seems to have vacillated a little from a feeling of the possibility of conflict between the two. The benefit of a warranty was confined to those who, by the act and consent of the [387] grantee, succeeded to his place. It did not pass to assigns unless assigns were mentioned. Bracton supposes grants of easements with or without mention of assigns, which looks as if he thought the difference might be material with regard to easements also. He further says, that if an easement be granted to A, his heirs and assigns, all such by the form of the grant are allowed the use in succession, and all others are wholly excluded. /1/ But he is not speaking of what the rights of a disseisor would be as against one not having a better title, and he immediately adds that they are rights over a corporeal object belonging to a corporeal object.

Although it may be doubted whether the mention of assigns was ever necessary to attach an easement to land, and although it is very certain that it did not remain so long, the difficulty referred to grew greater as time went on. It would have been easily disposed of if the only rights which could be annexed to land were easements, such as a right of way. It then might have been said that these were certain limited interests in land, less than ownership in extent, but like it in kind, and therefore properly transferred by the same means that ownership was. A right of way, it might have been argued, is not to be approached from the point of view of contract. It does not presuppose any promise on the part of the servient owner. His obligation, although more troublesome to him than to others, is the same as that of every one else. It is the purely negative duty not to obstruct or interfere with a right of property. /2/

[388] But although the test of rights going with the land may have been something of that nature, this will not help us to understand the cases without a good deal of explanation. For such rights might exist to active services which had to be performed by the person who held the servient estate. It strikes our ear strangely to hear a right to services from an individual called a right of property as distinguished from contract. Still this will be found to have been the way in which such rights were regarded. Bracton argues that it is no wrong to the lord for the tenant to alienate land held by free and perfect gift, on the ground that the land is bound and charged with the services into whose hands soever it may come. The lord is said to have a fee in the homage and services; and therefore no entry upon the land which does not disturb them injures him. /1/ It is the tenement which imposes the obligation of homage, /2/ and the same thing is true of villein and other feudal services. /3/

The law remained unchanged when feudal services took the form of rent. /4/ Even in our modern terms for years rent is still treated as something issuing out of the leased premises, so that to this day, although, if you hire a whole house and it burns down, you have to pay without abatement, because you have the land out of which the rent issues, yet if you only hire a suite of rooms and they are burned, you pay rent no longer, because you no longer have the tenement out of which it comes. /5/

[389] It is obvious that the foregoing reasoning leads to the conclusion that a disseisor of the tenant would be bound as much as the tenant himself, and this conclusion was adopted by the early law. The lord could require the services, /1/ or collect the rent /2/ of any one who had the land, because, as was said in language very like Bracton's, "the charge of the rent goes with the land." /3/

Then as to the right to the rent. Rent was treated in early law as a real right, of which a disseisin was possible, and for which a possessory action could be brought. If, as was very frequently the case, the leased land lay within a manor, the rent was parcel of the manor, /4/ so that there was some ground for saying that one who was seised of the manor, that is, who possessed the lands occupied by the lord of the manor, and was recognized by the tenants as lord, had the rents as incident thereto. Thus Brian, Chief Justice of England under Henry VII., says, "If I am disseised of a manor, and the tenants pay their rent to the disseisor, and then I re-enter, I shall not have the back rent of my tenants which they have paid to my disseisor, but the disseisor shall pay for all in trespass or assize." /5/ This opinion was evidently founded on the notion that the rent was attached to the chief land like an easement. Sic fit ut debeantur rei a re. /6/

Different principles might have applied when the rent was not parcel of a manor, and was only part of the reversion; that is, part of the landlord's fee or estate out of [390] which the lease was carved. If the lease and rent were merely internal divisions of that estate, the rent could not be claimed except by one who was privy to that estate. A disseisor would get a new and different fee, and would not have the estate of which the rent was part. And therefore it would seem that in such a case the tenant could refuse to pay him rent, and that payment to him would be no defence against the true owner. /1/ Nevertheless, if the tenant recognized him, the disseisor would be protected as against persons who could not show a better title. /2/ Furthermore, the rent was so far annexed to the land that whoever came by the reversion lawfully could collect it, including the superior lord in case of escheat. /3/ Yet escheat meant the extinction of the fee of which the lease and rent were parts, and although Bracton regarded the lord as coming in under the tenant's title pro herede, in privity, it was soon correctly settled that he did not, but came in paramount. This instance, therefore, comes very near that of a disseisor.

Services and rent, then, were, and to some extent are still, dealt with by the law from the point of view of property. They were things which could be owned and transferred like other property. They could be possessed even by wrong, and possessory remedies were given for them.

No such notion was applied to warranties, or to any right which was regarded wholly from the point of view of contract. And when we turn to the history of those remedies for rent which sounded in contract, we find that they were so regarded. The actions of debt and covenant [391] could not be maintained without privity. In the ninth year of Henry VI. /1/ it was doubted whether an heir having the reversion by descent could have debt, and it was held that a grantee of the reversion, although he had the rent, could not have that remedy for it. A few years later, it was decided that the heir could maintain debt, /2/ and in Henry VII.'s reign the remedy was extended to the devisee, /3/ who, as has been remarked above, seemed more akin to the heir than a grantee, and was more easily likened to him. It was then logically necessary to give assigns the same action, and this followed. /4/ The privity of contract followed the estate, so that the assignee of the reversion could sue the person then holding the term. /5/ On like grounds he was afterwards allowed to maintain covenant. /6/ But these actions have never lain for or against persons not privy in estate with the lessor and lessee respectively, because privity to the contract could never be worked out without succession to the title. /7/

However, all these niceties had no application to the old freehold rents of the feudal period, because the contractual remedies did not apply to them until the time of Queen Anne. /8/ The freehold rent was just as much real estate as an acre of land, and it was sued for by the similar remedy of an assize, asking to be put back into possession.

[392] The allowance of contractual remedies shows that rent and feudal services of that nature, although dealt with as things capable of possession, and looked at generally from the point of view of property rather than of contract, yet approach much nearer to the nature of the latter than a mere duty not to interfere with a way. Other cases come nearer still. The sphere of prescription and custom in imposing active duties is large in early law. Sometimes the duty is incident to the ownership of certain land; sometimes the right is, and sometimes both are, as in the case of an easement. When the service was for the benefit of other land, the fact that the burden, in popular language, fell upon one parcel, was of itself a reason for the benefit attaching to the other.

Instances of different kinds are these. A parson might he bound by custom to keep a bull and a boar for the use of his parish. /1/ A right could be attached to a manor by prescription to have a convent sing in the manor chapel. /2/ A right might be gained by like means to have certain land fenced by the owner of the neighboring lot. /3/ Now, it may readily be conceded that even rights like the last two, when attached to land, were looked at as property, and were spoken of as the subject of grant. /4/ It may be conceded that, in many cases where the statement sounds strange to modern ears, the obligation was regarded as failing on the land alone, and not on the person of the [393] tenant. And it may be conjectured that this view arose naturally and reasonably from there having been originally no remedy to compel performance of such services, except a distress executed on the servient land. /1/ But any conjectured distinction between obligations for which the primitive remedy was distress alone, and others, if it ever existed, must soon have faded from view; and the line between those rights which can be deemed rights of property, and those which are mere contracts, is hard to see, after the last examples. A covenant to repair is commonly supposed to be a pure matter of contract. What is the difference between a duty to repair, and a duty to fence? The difficulty remains almost as great as ever of finding the dividing line between the competing principles of transfer, — succession on the one side, and possession of dominant land on the other. If a right in the nature of an easement could be attached to land by prescription, it could equally be attached by grant. If it went with the land in one case, even into the hands of a disseisor, it must have gone with it in the other. No satisfactory distinction could be based on the mode of acquisition, /2/ nor was any attempted. As the right was not confined to assigns, there was no need of mentioning assigns. /3/ In modern times, at least, if not in early law, such rights can be created by covenant as well [394] as by grant. /1/ And, on the other hand, it is ancient law that an action of covenant may be maintained upon an instrument of grant. /2/ The result of all this was that not only a right created by covenant, but the action of covenant itself, might in such cases go to assigns, although not mentioned, at a time when such mention was essential to give them the benefit of a warranty. Logically, these premises led one step farther, and not only assigns not named, but disseisors, should have been allowed to maintain their action on the contract, as they had the right arising out of it. Indeed, if the plaintiff had a right which when obtained by grant would have entitled him to covenant, it was open to argument that he should be allowed the same action when he had the right by prescription, although, as has been seen in the case of rent, it did not follow in practice from a man's having a right that he had the contractual remedies for it. /3/ Covenant required a specialty, but prescription was said to be a sufficiently good specialty. /4/ Where, then, was the line to be drawn between covenants that devolved only to successors, and those that went with the land?

The difficulty becomes more striking upon further examination of the early law. For side by side with the personal warranty which has been discussed hitherto, there was another warranty which has not yet been mentioned [395] by which particular land alone was bound. /1/ The personal warranty bound only the warrantor and his heirs. As was said in a case of the time of Edward I., "no one can bind assigns to warranty, since warranty always extends to heirs who claim by succession and not by assignment." /2/ But when particular land was bound, the warranty went with it, even into the hands of the King, because, as Bracton says, the thing goes with its burden to every one. /3/ Fleta writes that every possessor will be held. /4/ There cannot be a doubt that a disseisor would have been bound equally with one whose possession was lawful.

We are now ready for a case /5/ decided under Edward III., which has been discussed from the time of Fitzherbert and Coke down to Lord St. Leonards and Mr. Rawle, which is still law, and is said to remain still unexplained. /6/ It shows the judges hesitating between the two conceptions to which this Lecture has been devoted. If they are understood, I think the explanation will be clear.

Pakenham brought covenant as heir of the covenantee against a prior, for breach of a covenant made by the defendant's predecessor with the plaintiff's great- grandfather, that the prior and convent should sing every week in a chapel in his manor, for him and his servants. The defendant first pleaded that the plaintiff and his servants were not dwelling within the manor; but, not daring to [396] rest his case on that, he pleaded that the plaintiff was not heir, but that his elder brother was. The plaintiff replied that he was tenant of the manor, and that his great-grandfather enfeoffed a stranger, who enfeoffed the plaintiff and his wife; and that thus the plaintiff was tenant of the manor by purchase, and privy to the ancestor; and also that the services had been rendered for a time whereof the memory was not.

It is evident from these pleadings that assigns were not mentioned in the covenant, and so it has always been taken. /1/ It also appears that the plaintiff was trying to stand on two grounds; first, privity, as descendant and assign of the covenantee; second, that the service was attached to the manor by covenant or by prescription, and that he could maintain covenant as tenant of the manor, from whichever source the duty arose.

Finchden, J. puts the case of parceners making partition, and one covenanting with the other to acquit of suit. A purchaser has the advantage of the covenant. Belknap, for the defendants, agrees, but distinguishes. In that case the acquittance falls on the land, and not on the person. /2/ (That is to say, such obligations follow the analogy of easements, and, as the burden falls on the quasi servient estate, the benefit goes with the dominant land to assigns, whether mentioned or not, and they are not considered from the point of view of contract at all. Warranty, on the other hand, is a contract pure and simple, and lies in the blood, — falls on the person, not on the land. /3/)

Finchden: a fortiori in this case; for there the action [397] was maintained because the plaintiff was tenant of the land from which the suit was due, and here he is tenant of the manor where the chapel is.

Wichingham, J.: If the king grants warren to another who is tenant of the manor, he shall have warren, &c.; but the warren will not pass by the grant [of the manor], because the warren is not appendant to the manor. No more does it seem the services are here appendant to the manor.

Thorpe, C. J., to Belknap: "There are some covenants on which no one shall have an action, but the party to the covenant, or his heir, and some covenants have inheritance in the land, so that whoever has the land by alienation, or in other manner, shall have action of covenant; [or, as it is stated in Fitzherbert's Abridgment, /1/ the inhabitants of the land as well as every one who has the land, shall have the covenant;] and when you say he is not heir, he is privy of blood, and may be heir: /2/ and also he is tenant of the land, and it is a thing which is annexed to the chapel, which is in the manor, and so annexed to the manor, and so he has said that the services have been rendered for all time whereof there is memory, whence it is right this action should be maintained." Belknap denied that the plaintiff counted on such a prescription; but Thorpe said he did, and we bear record of it, and the case was adjourned. /3/

It will be seen that the discussion followed the lines marked out by the pleading. One judge thought that [398] the plaintiff was entitled to recover as tenant of the manor. The other puisne doubted, but agreed that the case must be discussed on the analogy of easements. The Chief Justice, after suggesting the possibility of sufficient privity on the ground that the plaintiff was privy in blood and might be heir, turns to the other argument as more promising, and evidently founds his opinion upon it. /1/ It would almost seem that he considered a prescriptive right enough to support the action, and it is pretty clear that he thought that a disseisor would have had the same rights as the plaintiff.

In the reign of Henry IV., another case /2/ arose upon a covenant very like the last. But this time the facts were reversed. The plaintiff counted as heir, but did not allege that he was tenant of the manor. The defendant, not denying the plaintiff's descent, pleaded in substance that he was not tenant of the manor in his own right. The question raised by the pleadings, therefore, was whether the heir of the covenantee could sue without being tenant of the manor. If the covenant was to be approached from the side of contract, the heir was party to it as representing the covenantee. If, on the other hand, it was treated as amounting to the grant of a service like an easement, it would naturally go with the manor if made to the lord of the manor. It seems to have been thought that such a covenant might go either way, according as it was made to the tenant of the manor or to a stranger. Markham, one of the judges, says: "In a writ of covenant one must be privy to the covenant if he would have a writ of covenant or aid by the covenant. But, peradventure, if the covenant [399] had been made with the lord of the manor, who had inheritance in the manor, ou issint come determination poit estre fait, it would be otherwise," which was admitted. /1/ It was assumed that the covenant was not so made as to attach to the manor, and the court, observing that the service was rather spiritual than temporal, were inclined to think that the heir could sue. /2/ The defendant accordingly over and set up a release. It will be seen how fully this agrees with the former case.

The distinction taken by Markham is stated very clearly in a reported by Lord Coke. In the argument of Chudleigh's Case the line is drawn thus: "Always, the warranty as to voucher requires privity of estate to which it was annexed," (i.e. succession to the original covenantee,) "and the same law of a use .... But of things annexed to land, it is otherwise, as of commons, advowsons, and the like appendants or appurtenances .... So a disseisor, abator, intruder, or the lord by escheat, &c., shall have them as things annexed to the land. So note a diversity between a use or warranty, and the like things annexed to the estate of the land in privity, and commons, advowsons, and other hereditaments annexed to the possession of the land." /3/ And this, it seems to me, is the nearest approach which has ever been made to the truth.

Coke, in his Commentary on Littleton (385 a), takes a distinction between a warranty, which binds the party to yield lands in recompense, and a covenant annexed to the land, which is to yield but damages. If Lord Coke had [400] meant to distinguish between warranties and all covenants which in our loose modern sense are said to run with the land, this statement would be less satisfactory than the preceding.

A warranty was a covenant which sometimes yielded but damages, and a covenant in the old law sometimes yielded land. In looking at the early cases we are reminded of the still earlier German procedure, in which it did not matter whether the plaintiff's claim was founded on a right of property in a thing, or simply on a contract for it. /1/ Covenant was brought for a freehold under Edward I., /2/ and under Edward III. it seems that a mill could be abated by the same action, when maintained contrary to an easement created by covenant. /3/ But Lord Coke did not mean to lay down any sweeping doctrine, for his conclusion is, that "a covenant is in many cases extended further than the warrantie." Furthermore, this statement, as Lord Coke meant it, is perfectly consistent with the other and more important distinction between warranties and rights in the nature of easements or covenants creating such rights. For Lord Coke's examples are confined to covenants of the latter sort, being in fact only the cases just stated from the Year Books.

Later writers, however, have wholly forgotten the distinction in question, and accordingly it has failed to settle the disputed line between conflicting principles. Covenants which started from the analogy of warranties, and others to which was applied the language and reasoning of easements, have been confounded together under the title of [401] covenants running with the land. The phrase "running with the land" is only appropriate to covenants which pass like easements. But we can easily see how it came to be used more loosely.

It has already been shown that covenants for title, like warranties, went only to successors of the original covenantee. The technical expression for the rule was that they were annexed to the estate in privity. Nothing was easier than to overlook the technical use of the word "estate," and to say that such covenants went with the land. This was done, and forthwith all distinctions became doubtful. It probably had been necessary to mention assigns in covenants for title, as it certainly had been to give them the benefit of the ancient warranty; /1/ for this seems to have been the formal mark of those covenants which passed only to privies. But it was not necessary to mention assigns in order to attach easements and the like to land. Why should it be necessary for one covenant running with the land more than another? and if necessary for one, why not for all? /2/ The necessity of such mention in modern times has been supposed to be governed by a fanciful rule of Lord Coke's. /3/ On the other hand, the question is raised whether covenants which should pass irrespective of privity are not governed by the same rule which governs warranties.

These questions have not lost their importance. Covenants for title are in every deed, and other covenants are [402] only less common, which, it remains to show, belong to the other class.

Chief among these is the covenant to repair. It has already been observed that an easement of fencing may be annexed to land, and it was then asked what was the difference in kind between a right to have another person build such structures, and a right to have him repair structures already built. Evidence is not wanting to show that the likeness was perceived. Only, as such covenants are rarely, if ever, made, except in leases, there is always privity to the original parties. For the lease could not, and the reversion would not be likely to, go by disseisin.

The Dean of Windsor's Case decides that such a covenant binds an assignee of the term, although not named. It is reported in two books of the highest authority, one of the reporters being Lord Coke, the other Croke, who was also a judge. Croke gives the reason thus: "For a covenant which runs and rests with the land lies for or against the assignee at the common law, quia transit terra cum onere, although the assignees be not named in the covenant." /1/ This is the reason which governed easements, and the very phrase which was used to account for all possessors being bound by a covenant binding a parcel of land to warranty. Coke says, "For such covenant which extends to the support of the thing demised is quodammodo appurtenant to it, and goes with it." Again the language of easements. And to make this plainer, if need be, it is added, "If a man grants to one estovers to repair his house, it is appurtenant to his house." Estovers for [403] repair went with the land, like other rights of common, /1/ which, as Lord Coke has told us, passed even to disseisors.

In the next reign the converse proposition was decided, that an assignee of the reversion was entitled in like manner to the benefit of the covenant, because "it is a covenant which runs with the land." /2/ The same law was applied, with still clearer reason, to a covenant to leave fifteen acres unploughed for pasture, which was held to bind an assignee not named, /3/ and, it would seem, to a covenant to keep land properly manured. /4/

If the analogy which led to this class of decisions were followed out, a disseisor could sue or be sued upon such covenants, if the other facts were of such a kind as to raise the question. There is nothing but the novelty of the proposition which need prevent its being accepted. It has been mentioned above, that words of covenant may annex an easement to land, and that words of grant may import a covenant. It would be rather narrow to give a disseisor one remedy, and deny him another, where the right was one, and the same words made both the grant and the covenant. /5/

The language commonly used, however, throws doubt and darkness over this and every other question connected with the subject. It is a consequence, already referred to, of confounding covenants for title, and the class last discussed, [404] under the name of covenants running with the land. According to the general opinion there must be a privity of estate between the covenantor and covenantee in the latter class of cases in order to bind the assigns of the covenantor. Some have supposed this privity to be tenure; some, an interest of the covenantee in the land of the covenantor; and so on. /1/ The first notion is false, the second misleading, and the proposition to which they are applied is unfounded. Privity of estate, as used in connection with covenants at common law, does not mean tenure or easement; it means succession to a title. /2/ It is never necessary between covenantor and covenantee, or any other persons, except between the present owner and the original covenantee. And on principle it is only necessary between them in those cases — such as warranties, and probably covenants for title — where, the covenants being regarded wholly from the side of contract, the benefit goes by way of succession, and not with the land.

If now it should be again asked, at the end of this long discussion, where the line is to be drawn between these two classes of covenants, the answer is necessarily vague in view of the authorities. The following propositions may be of some service.

*A. With regard to covenants which go with the land: —

*(1.) Where either by tradition or good sense the burden of the obligation would be said, elliptically, to fall on the land of the covenantor, the creation of such a burden is in theory a grant or transfer of a partial interest in [405] that land to the covenantee. As the right of property so created can be asserted against every possessor of the land, it would not be extravagant or absurd to allow it to be asserted by the action of covenant.

*(2.) Where such a right is granted to the owner of a neighboring piece of land for the benefit of that land, the right will be attached to the land, and go with it into all hands. The action of covenant would be allowed to assigns not named, and it would not be absurd to give it to disseisors.

*(3.) There is one case of a service, the burden of which does not fall upon land even in theory, but the benefit of which might go at common law with land which it benefited. This is the case of singing and the like by a convent. It will be observed that the service, although not falling on land, is to be performed by a corporation permanently seated in the neighborhood. Similar cases are not likely to arise now.

*B. With regard to covenants which go only with the estate in the land: —

In general the benefit of covenants which cannot be likened to grants, and the burden of which does not fall on land, is confined to the covenantee and those who sustain his persona, namely, his executor or heir. In certain cases, of which the original and type was the ancient warranty, and of which the modern covenants for title are present examples, the sphere of succession was enlarged by the mention of assigns, and assigns are still allowed to represent the original covenantee for the purposes of that contract. But it is only by way of succession that any other person than the party to the contract can sue upon it. Hence the plaintiff must always be privy in estate with the covenantee.

[406] C. It is impossible, however, to tell by general reasoning what rights will be held in English law to belong to the former class, or where the line will be drawn between the two. The authorities must be consulted as an arbitrary fact. Although it might sometimes seem that the test of the first was whether the service was of a nature capable of grant, so that if it rested purely in covenant it would not follow the land, /l / yet if this test were accepted, it has already been shown that, apart from tradition, some services which do follow the land could only be matter of covenant. The grant of light and air, a well- established easement, is called a covenant not to build on the servient land to the injury of the light, by Baron Parke. /2/ And although this might be doubted, /3/ it has been seen that at least one well-established easement, that of fencing, cannot be considered as a right granted out of the servient land with any more propriety than a hundred other services which would be only matter of contract if the law allowed them to be annexed to land in like manner. The duty to repair exists only by way of covenant, yet the reasoning of the leading cases is drawn from the law of easement. On the other hand, a covenant by a lessee to build a wall upon the leased premises was held, in Spencer's Case, not to bind assigns unless mentioned; /4/ but Lord Coke says that it would have bound them if it had purported to. The analogy of warranty makes its appearance, and throws a doubt on the fundamental principle of the case. We can only say that the application [407] of the law is limited by custom, and by the rule that new and unusual burdens cannot be imposed on land.

The general object of this Lecture is to discover the theory on which a man is allowed to enjoy a special right when the facts out of which the right arises are not true of him. The transfer of easements presented itself as one case to be explained, and that has now been analyzed, and its influence on the law has been traced. But the principle of such transfers is clearly anomalous, and does not affect the general doctrine of the law. The general doctrine is that which has been seen exemplified in prescription, warranty, and such covenants as followed the analogy mentioned Another illustration which has not yet been is to be found in the law of uses.

In old times a use was a chose in action, — that is, was considered very nearly from the point of view of contract, and it had a similar history to that which has been traced in other cases. At first it was doubted whether proof of such a secret trust ought to be allowed, even as against the heir. /1/ It was allowed, however, in the end, /2/ and then the principle of succession was extended to the assign. But it never went further. Only those who were privies in estate with the original feoffee to uses, were bound by the use. A disseisor was no more bound by the confidence reposed in his disseisee, than he was entitled to vouch his disseisee's warrantor. In the time of Henry VIII. it was said that "where a use shall be, it is requisite that there be two things, sc. confidence, and privity: ... as I say, if there be not privity or confidence, [4O8] then there can be no use: and hence if the feoffees make a feoffment to one who has notice of the use, now the law will adjudge him seised to the first use, since there is sufficient privity between the first feoffor and him, for if he [i.e. the first feoflor] had warranted he [the last feoffee] should vouch as assign, which proves privity; and he is in in the per by the feoffees; but where one comes into the land in the post, as the lord by escheat or the disseisor, then the use is altered and changed, because privity is wanting." /1/

To this day it is said that a trust is annexed in privity to the person and to the estate /2/ (which means to the persona). It is not regarded as issuing out of the land like a rent, so that while a rent binds every one who has the land, no matter how, a disseisor is not bound by the trust. /3/ The case of the lord taking by escheat has been doubted, /4/ and it will be remembered that there is a difference between Bracton and later authors as to whether he comes in as quasi heres or as a stranger.

Then as to the benefit of the use. We are told that the right to sue the subpoena descended indeed to the heir, on the ground of heres eadem persona cum antecessore, but that it was not assets. /5/ The cestui que use was given power to sell by an early statute. /6/ But with regard to trusts, Lord Coke tells us that in the reign of Queen Elizabeth [409] all the judges in England held that a trust could not be assigned, "because it was a matter in privity between them, and was in the nature of a chose in action." /1/ Uses and trusts were both devisable, however, from an early day, /2/ and now trusts are as alienable as any form of property.

The history of early law everywhere shows that the difficulty of transferring a mere right was greatly felt when the situation of fact from which it sprung could not also be transferred. Analysis shows that the difficulty is real. The fiction which made such a transfer conceivable has now been explained, and its history has been followed until it has been seen to become a general mode of thought. It is now a matter of course that the buyer stands in the shoes of the seller, or, in the language of an old law-book, /3/ that "the assign is in a manner quasi successor to his assignor." Whatever peculiarities of our law rest on that assumption may now be understood.

Previous | Contents | Text Version