as the court stated, it was an agreement which would have run at law according to the weight of American authority, had it been a covenant; and although it was not a covenant, the court decided that it would be inequitable not to charge against defendant or his dominant land, the stipulated portion of the expense of keeping up the waterpower in which the defendant had an appurtenant property interest. The court charged it against the land.

§ 88. Same (continued). 3. We considered the effect of restrictive agreements which raise equitable easements in the preceding chapter. It is to be noted in this connection that restrictive agreements which are intended to run with the land at law, may raise equitable easements whether or not they have the requisites of covenants which run. For instance, a covenant by a lessee for himself, his representatives and assigns, that no intoxicating liquors shall be sold on the premises leased, cannot be enforced as a covenant at law against a sub-tenant (§ 83, above); but in equity, the sub-tenant may be enjoined from breaking the restriction because it may be enforced as an equitable easement against him.

It is frequently said that an agreement raising an equitable easement runs in equity, and that persons who take the servient land with notice or as volunteers are bound to perform the promisor's contract. This is not true, though superficially it seems a short expression of the legal result. The contract does not run in equity. It raises in favor of the promisee and his successors in possession of the dominant land, a right in the servient land to restrict the use thereof; and it is infringement of this

right, not breach of a contract, that gives rise to his cause of legal complaint against others than the promisor. This will be perceived more clearly if we recollect that these equitable easements are enforceable not merely against successors to the interest of the promisor, but also against persons totally disconnected with his title, such as mere occupants, trespassers, or adverse possessors (8). In fact the contract operates in equity as a grant of an incorporeal right in the servient land.

4. If X contracts in writing to convey land to Y and then conveys it to Z, who takes with notice of the contract or takes without giving value, Y can compel Z to convey the land to him upon tendering performance of his part of the contract with X. Z is not bound to perform X's contract in this case; but he is bound to respect the equitable right to the land which is raised by the contract in favor of Y and he infringes this right if he keeps the land from Y. This is discussed at length in the articles on Trusts and Equity in Volume VII of this work.

5. Certainly it may be stated that there is no general principle or rule independent of statute that agreements to do an affirmative act, made by the owner of a piece of land and intended to bind the successive possessors of the land, will bind either them or the land in their hands (9). The cases in which either the land or its subsequent possessors will be bound are limited to the classes discussed in the preceding pages and perhaps some analogues.

§ 89. Running of benefits of contracts. We have al

(8) 17 Harvard Law Review, 177.

(9)

Hayward v. Brunswick Bldg. Society, 8 Q. B. D. 403.

ready considered the running of the benefits of covenants between lessor and lessee of land, and dominant and servient owners. The benefit of a contract generally is assignable as a property interest. However, unless the contract is negotiable, as is a promissory note for a certain sum of money payable to order or bearer, the assignee of the benefit can sue and recover only in the name of the original promisee, except where a statute has changed the common law in this respect. In many of our states there have been statutes passed which enable the assignee to sue in his own name.

If it is clearly indicated that the benefit of a promise is intended by the parties thereto to inure at all times to the possessor for the time being of a certain lot of land, there seems to be no objection in most of our states to permitting the benefit to run with the possession of that land without express separate assignment (10). If a possessor subsequent to the promisee sues for breach of such a contract (that is, does not sue for violation of an equitable easement or some other right in the land), he sues as assignee or beneficiary of it. Whether he sues in his own name or in that of the promisee will depend upon the local procedural law.

(10)

Shaber v. St. Paul Water Power Co., 30 Minn. 179; National Bank v. Segur, 39 N. J. L. 173. Cf. Lyon v. Parker, 45 Me. 474.

LANDLORD AND TENANT.

BY

JOHN ROMAIN ROOD,

LL. B. (University of Michigan)

Professor of Law, University of Michigan.

CHAPTER I.

CREATION AND NATURE OF THE RELATION.

§ 1. In general. The relation of landlord and tenant is usually created by contract express or implied, by which one party, called the lessor, having some interest in the land leased, grants to the other party to the contract, called the lessee or tenant, the right to possess and use the leased land in fee and forever; or during the life of the tenant or some other; or for a fixed and