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call attention to the unusually careful analysis of the difficult subject of Assignments in Chapter VI.

Mr. Hilliard's book is evidently the result of much intelligent labor, and as a complete, methodical and well digested summary of the present law, will be of great value to the profession-especially since the recent vote of the House of Representatives appears for the present at least to have settled the question of a new and permanent national law of bankruptcy.

J. T. M.

COMMENTARIES ON THE LAW OF BAILMENTS, with Illustrations from the Civil and Foreign Law. By JOSEPH STORY, LL.D., one of the Justices of the Supreme Court of the United States, and Dane Professor of Law in Harvard University. Seventh Edition; Revised, Corrected, and Enlarged, by EDMUND H. BENNETT. Boston Little, Brown & Co., 1863.

Mr. Bennett has here presented us with the seventh edition of what the learned author calls "the first fruits of the Professorship founded" in the oldest of the American universities, "by the bounty of the Hon. Nathan Dane, whose name and fame have thus become indissolubly identified with American jurisprudence in all its departments; and with the interests and the success of juridical learning, throughout the world, even to the end of time." It is perhaps not too much to say, that if this book had been the only result of the founder's munificence, as it was not a tithe, perhaps, it would have rendered all after generations his debtors in a large and willing obligation.

This book was originally the most perfect of Judge Story's numerous and valuable treatises upon all the departments of the law which fell under his somewhat extensive and miscellaneous department; and we feel sure the work has not lost, either in the original symmetry of its proportions, or the thoroughness of its details, through the inattention or the haste of its editors, since the decease of the author. The present edition is considerably enlarged, especially in the important chapters upon Innkeepers and Common Carriers, since the last edition, by the same editor, in 1857.

This book is now almost the only one in use embracing the same field, and it contains all that could be expected in one volume upon so broad a subject; and so well arranged, and with so perfect an analysis, in the full table of contents and index, as to make its contents more accessible than is common in books of that extent, and embracing so great a number of topics. The new matter is worth twice the cost of the volume to any practising lawyer.

very

I. F. R.

THE

AMERICAN LAW REGISTER.

MARCH, 1863.

COVENANTS FOR TITLE RUNNING WITH THE LAND.

(CONCLUDED.)

II. OF THE PRACTICAL RULES WHICH REGULATE COVENANTS FOR TITLE IN RUNNING WITH THE LAND.—(Continued.)

2. Of the rights and remedies of the respective parties on a breach of covenants for title running with the land.

It is customary in this country for every grantor to covenant anew for the title to land, so that a series of covenants comes into the hands of the last grantor, with a right of action on any or all of them, which have been made since the occurrence of the defect which occasioned the breach. It is therefore reasonable that intermediate covenantors who have covenanted, relying on the validity of prior covenants, should in some way be protected. With a view to this, it was formerly understood that the mere prospective liability of any intermediate covenantor, was of itself sufficient to authorize him, when a breach happened for which he might be sued, to proceed at once against any prior covenantor who was also liable for the same breach. But the effect of this would be, that as soon as a breach happened, not only the last

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grantee, but every intermediate one, might proceed against any and all covenantors before themselves, or they might all proceed against the first covenantor; and as one suit would not bar another, the same party might be subject to pay damages to several different parties for a single breach of the same covenant. The decision in Kane vs. Sanger, 14 Johns. 89, was apparently designed to obviate this difficulty. It was there held that a grantee, by taking covenants from his immediate grantor, thereby divested himself of all right of action on prior covenants, these remaining exclusively for the benefit of intermediate covenanting grantors. This rule would manifestly subvert the whole theory of covenants running with the land, when subsequent transfers were accompanied with covenants; detaining the covenants in the hands of the first covenantee and remitting every grantee to his own covenantor. The case of Booth vs. Starr, 1 Conn. 244, first exposed the unsoundness of the law of Kane vs. Sanger, and established certain principles which afford a satisfactory disposition of the whole matter. They are,

1st. That the owner at the time of breach, whether he has or has not taken covenants from his own grantor, may sue the first covenantor, and any or all intermediate ones.

2d. That an intermediate covenantor does not retain the right of action against prior covenantors, merely because of a prospective liability on his own covenants.

3d. That an intermediate covenantor is entitled to sue on prior covenants, when he has been subjected to injury on account of his

own covenants.

These conclusions were afterwards adopted in Withy vs. Mumford, 5 Cowen 137, overruling Kane vs. Sanger, and they have since been enforced in numerous decisions in different states: 12 N. H. 413; 1 Aiken 239; 3 Cush. 222; 10 Wend. 180; 2 Penn. 507; 1 Dev. & Bat. 94; 1 Hawks 410; 5 Monroe 357; 10 Geo. 311; 1 Fairf. 91; 13 Basle S. C. 283; 36 Maine 170. As to the precise principle of the last of the above rules, some of the authorities intimate that when a covenantee becomes himself a grantor and covenantor, he still holds the former covenants for some pur

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poses; while others regard the covenant as extinguished so far as he is concerned, and afterwards revived by payment. In Markland vs. Crump, 1 Dev. & Bat. 94, this matter is illustrated by the analogy of negotiable commercial paper. The holder of a negotiable note is at liberty to sue, not only his immediate endorser, but any whose names appear upon the paper; but no endorser can sue those prior to himself until he has taken up the note from the last holder and holds it for his own use.

So, the covenants for title are considered as temporarily lodged with the last grantee, he being the one most interested in enforcing them. An intermediate grantor who conveys with covenants, stands in a position like that of an endorser; and when he has satisfied his own covenants, thereby "takes up," as it were, the covenants for his own use. Nor is it necessary for this purpose that he shall regain the estate to which the covenants are incident. For, although, when the covenants are once effectually broken, they cease to run with the land, to protect future owners, they still subsist, detached from the land, for the sole purpose of being satisfied for the indemnity of the parties entitled to it.

As an intermediate covenantor cannot sue until he has been himself damnified, he may be left without any indemnity by the neglect or refusal of the last grantee to proceed against any one, until the original covenantor becomes insolvent. It would seem to be just that an intermediate covenantor, suspecting that he should lose his indemnity in case the last grantee elects to proceed against him, should have the privilege of tendering the amount that might be realized, from his own covenants, and then resorting at once for his indemnity, to the prior covenantors. But for this, there is at present no authority. This topic has suggested several questions respecting damages, which appear never to have been adjudicated. Where the measure of damages is the value of the land at the time of eviction, there can be no difficulty; it would be immaterial to the last grantee whether he recovered from his immediate grantor or a more remote one, since the amount recovered would be the same in either case.

But in most of the states the measure of damages is the value

of the land at the time of the sale, or the consideration-money with interest. The last grantee would therefore naturally sue on a breach of a covenant running with the land, a later or more remote covenantor, according as the land has increased or diminished in value. Intermediate covenantors would not recover over the exact sums they had been compelled to pay; but in this there is no hardship, since each one pays only the consideration he received when he sold the land. It is held that a full recovery against any one covenantor, is a bar to any future recovery: 9 Ohio 595. But suppose A., B., C., and D. are successive grantors of land, who receive for it respectively $4000, $6000, $8000, and $10,000. If now E., the last grantee, succeeds in actually recovering from D. $7000, and proceeds against C. for farther damages; what amount can be recovered from C.? So far as he is concerned, the measure of damages is only $8000, of which 7000 has been already recovered. Must he pay $3000, or only $1000? Or, if all the grantors are sued simultaneously, as may be done, (9 Ohio 595; 12 N. H. 413; 1 Aiken 239), what is then the true measure of damages? Or again, if D. pays $7000, and C. $3000, what can they respectively recover over from A.? Can he who sues first obtain full payment, leaving the others unprovided for? It must be clear that no grantee can recover more than the largest sum which any one covenantor would be liable to pay, from all the covenantors together; and it would seem reasonable that when several have paid, there should be a pro rata distribution of the indemnity, which can be recovered over as among sureties.

Again, suppose an estate has depreciated in value so that the consideration-money has become less at each successive transfer, and the last grantee, doubting the solvency of the first covenantor, or for any cause, elects to sue a later covenantor from whom he recovers in full; is this covenantor who has paid, so fully invested with the rights of the last grantee, that he may recover from the first covenantor the whole consideration received by him, or only indemnity for what he has actually paid?

The latter rule would probably be the better one. A covenantor who has once satisfied his own covenants, is fully discharged from

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