CHAPTER III.

RIGHTS IN PERSONAM CONCERNING THE USE OF LAND.

§ 81. Distinctions. The ordinary rights of a landpossessor, discussed in Chapter I, and profits and easements, discussed in Chapter II, are rights enforceable against the world in general, or what are known technically as rights in rem. The contract rights which we are to consider in this chapter are good against only particular persons, namely the promisor and the successive possessors of a parcel of land, holding under title from him. Rights, good against particular persons only, are known technically as rights in personam.

§ 82. Obligation of contracts generally unassignable. Generally, if X makes a contract with Y, no person but X is bound, during X's lifetime, to perform the obligation which he thereby assumes. We need not consider here what becomes of it upon X's death. If X engages Z to satisfy the contract demand in his place, Z voluntarily assumes to perform a new duty and incidentally to satisfy X's, and is not bound merely by force of the original agreement.

§ 83. Covenants in leases binding assigns. Now let us suppose that X leases property to Y and covenants in the lease that he will keep the buildings in repair during the term of the lease. If X then transfers his landlord's interest to Z, Z will be bound on the covenant to repair whether or not he had notice of it when he took the trans

fer. He is bound merely because he has succeeded to the position of X as landlord. He must take that position with all its duties. He cannot escape them even by making an agreement with X that X shall see to their performance. Likewise a landlord may hold the assignee of the original lessee, on the lessee's covenants as tenant; but he cannot hold a sub-tenant, because he is not a subtenant's landlord (1).

§ 84. Same (continued). There are several additional points to be particularly noticed with respect to these obligations between landlord and tenant.

1. In order that it may "run with the land" or "with the reversion," as the technical expressions go, an agreement must be a covenant-that is, an agreement under seal. Simple contract obligations do not "run." Probably in some states this rule has been changed by statutes; but it is never advisable to omit having each party to a lease or conveyance affix his seal as well as his signature.

2. The original parties to the covenant always remain bound. After they have ceased to be possessed of the burdened interest in the land, however, they are responsible only as quasi sureties (2).

3. Each successor to the position of landlord or of tenant is bound to performance of the obligations attached to his interest and is entitled to the benefits accruing during the time of his holding and no longer (3).

4. The only covenants which will run either as to benefit or burden are those relating to the rights and duties

(1) Holford v. Hatch, 1 Doug. 183. (2) Mason v. Smith, 131 Mass. 510. (3) Mason v. Smith, 131 Mass. 510.

of landlord as landlord, and of tenant as tenant of the particular piece of land leased. If, for instance, the lessee covenants in the lease to pay the landlord's debt to a third person, or to repair a building other than those leased; or if the lessor covenants to sell the lessee groceries at current market prices, the covenant is collateral to the relationship of landlord and tenant and will not run (4). In some doubtful cases, the naming of "assigns" and "personal representatives" as persons to be bound, will have the effect of making the covenants apparently of the proper sort and purpose to run; and generally it is advisable to covenant for "executors, administrators and assigns" in any case where it is intended that the covenant shall "run." See the article on Landlord and Tenant, Chapter III, elsewhere in this volume.

§ 85. Covenants between owner of incorporeal right and possessor of servient land. Let us consider another class of cases. X creates an easement over his land in favor of Y and the two enter into covenants with respect to the maintenance of the easement or defining their respective rights and duties concerning it. Such covenants, pertaining to the relationship of the holder of an easement and the possessor of the servient land, bear an analogy to covenants between landlord and tenant in that they concern reciprocal interests in the same piece of land. In most American jurisdictions they are held to run both as to benefit and burden, under restrictions and rules similar to those set forth with respect to landlord and tenant cov

(4) Thomas v. Hayward, L. R. 4 Ex. 311.

enants in the preceding section (5). Covenants between the owner of any other incorporal right in land and the possessor of the servient land fall into the same class.

§ 86. Burden of contracts generally does not run at law. Aside from covenants which fall into one of the classes discussed in the two preceding subsections, there are no contracts the burden of which will run at law so as to render successive possessors of the burdened interest personally liable in an action at law for damages for failure to perform during their respective tenures (6).

§ 87. Running of the burden of obligations in equity. 1. A covenant good against a certain person at law may be specifically enforced against him in equity under circumstances determinable by application of the principles governing the remedy of specific performance. See the article on Equity Jurisdiction in Volume VII of this work.

2. In some cases, an agreement which would have run at law but for the lack of a seal and which does not merely restrict the use of the promisor's lot may be enforced against it as an equitable charge, and, perhaps, against a subsequent possessor personally, in order to prevent him from obtaining a benefit inequitably. The decisions on this point are not numerous and therefore the law cannot be said to be entirely clear. However, we have at least one good authority. In the case of Whittenton Manufacturing Co. v. Staples (7) the supreme court of

(5) Morse v. Aldrich, 19 Pick. (Mass.) 449; Fitch v. Johnson, 104 Ill. 111.

(6) Hurd v. Curtis, 19 Pick. (Mass.) 459. (7) 164 Mass. 319.

Massachusetts had to decide a question raised by these facts: The Taunton Manufacturing Co. owned a tract of land along a stream, which contained several mill-sites. The company built a large reservoir upstream for the benefit of these mill-sites. It conveyed one of them to the predecessor in title of the defendant and stipulated in the deed that a right to some benefit from the water-power created by the dam and reservoir above should pass as appurtenant to the land conveyed, and that the grantee, "his heirs and assigns, grantees of these premises, should be responsible for one-fifth of the damages which might be paid the proprietors of neighboring lands for flowing them by damming the stream on the retained land of the grantor. The grantee did not sign or seal the deed -that is, it was a deed poll. Therefore, according to the law of Massachusetts, the stipulation to pay a portion of the flowage damages was not a covenant of the grantee. The question was whether defendant, who had purchased the granted mill-site with notice of the stipulation, could in any way be charged with the payment.

The court held that by the deed an appurtenant easement in the water-power raised by the dams on the land retained by the Taunton Manufacturing Company was granted to defendant's predecessor. This land was owned by the plaintiff at the time the claim sued on accrued. Therefore plaintiff and defendant occupied the relationship of servient and dominant possessors. The stipulation concerning flowage charges clearly related to the burden of maintaining the conditions on the servient land necessary to full enjoyment of the easement. Therefore,