mon law, to sue(g) the lessee or his assignee for breach of a covenant, whether express or implied(h), for non-payment of rent, or non-performance of services in the nature of rent, or for not keeping(i) the premises in repair, though it does not appear that any action could have been sustained, at common law, for breach of other(j) covenants relating to the land. The learned(k) annotators of Saunders's Reports consider the better opinion to be, that covenants in leases did not, at common law, run with the reversion; but the authority of Lord Coke, on a subject so often repeated by him, seems to outweigh any dicta to the contrary. An action of debt for rent lay, at common law(), by the assignee of the reversion of demised premises against the lessee, or his assignee; for it was said, that where the reversion comes lawfully to any person, either by grant or by devise, he shall have the rent along with the reversion, and may recover the rent by debt, or by distress, as the law creates a privity.

62. By the Irish Statute(m), 10 Car. I. Sess. 2, c. 4, which is transcribed from the English Statute, 32 Hen. VIII. c. 34, after reciting, that by the common law no stranger to any covenant, action, or condition shall take any advantage or benefit of the same by any means or ways in the law, but only such as be parties or privy thereunto, it is enacted, that all persons and bodies politic, their heirs, successors, and assigns, being grantees or assignees of the reversion of any lands or hereditaments (n) from the king, or from any other person or persons, and their heirs, executors, successors, and assigns, and every of them, shall have and enjoy like advantages against the lessees, their executors, administrators, and assigns by entry for nonpayment of the rent, or for doing of waste or other forfeiture; and also shall have and enjoy all and every such like and the same advantage, benefit, and remedies by actions only, for not performing other conditions, covenants, or agreements contained and expressed in the indentures(o) of

(g) Pakenham's case, Year Book, 42 Edw. III. fo. 3, cited in Spencer's case, 5 Rep. 16, and in Co. Litt. 385, A.; Alfo v. Hennings, Owen, 152; Athowe v. Heming, 1 Ro. Rep. 80; 2 Bulst. 281, S. C.; Brett v. Cumberland, 1 Ro. Rep. 359; 2 Ro. Rep. 63; 3 Bulst. 163; Vyvyan v. Arthur, 1 B. & Cr. 410, by Bayley, Justice; Com. Dig. Covenant, B. 3; 1 Ro. Abr. 521, Covenant, K. 6; Glover v. Cope, 1 Show. 284; Skinn. 296-305; 3 Lev. 326; Carth. 205; 4 Mod. 80, S.C.

(h) Harper v. Burgh, 2 Lev. 206; Duchess of Chandos v. Brownlow, 2

Ridg. Parl. Ca. 406.

(i) Brett v. Cumberland, 1 Ro. Rep. 359; 1 Cro. Jac. 521.

(j) 2 Sugd. Vend. 468.

(k) Thursby v. Plant, 1 Saund. 240, note 3 and O Platt on Covenants,

531.

(1) John D— v. T. F, Year Book, 5 Hen. VII. fo. 18 B. pl. 12; Bro. Abr. Dette, pl. 140.

(m) 10 Car. I. Sess. 2, c. 4, s. 1, Irish; 32 Hen. VIII. c. 34, s. 1, English.

(n) See Ld. Portmore v. Bunn, 1 B. & Cress. 694-698, 3 D. & Ry. 145, S. C. (0) This Statute is confined to leases

their leases, demises, or grants against all and every the said lessees and farmers and grantees, their executors, administrators, and assigns, as the said lessors or grantors themselves, or their heirs or successors should or might have had and enjoyed at any time or times, in like manner and form as if the reversion of such lands, tenements, or hereditaments had remained and continued in the said grantors or lessors, their heirs or successors and by the second section(p), it is enacted, that all farmers, lessees, and grantees of lands, tenements, or hereditaments for term of years, life, or lives, their executors, administrators, and assigns shall and may have like action, advantage, and remedy against all and every person and persons, and bodies politic, their heirs, successors, and assigns, which have or shall have any gift or grant of the King's Majesty or of any other person or persons of the reversion of the same lands, tenements, or hereditaments(q) so letten, or any parcel thereof, for any condition, covenant, or agreement contained or expressed in the indentures of their lease or leases, as the same lessees or any of them might and should have had against the lessors and grantors, their heirs or successors.

63. This Statute removed any doubts respecting the right of an assignee of the reversion to sue upon and have the benefit of covenants entered into by a lessee with his lessor, but the Act(r) was construed only to extend to covenants running with the land, and affecting(s) the nature, quality(t), profits, or mode(u) of enjoyment of the premises, and not to collateral covenants.

In order to make a covenant run with and accompany the reversion in demised premises, it must not only concern the land, but a privity(v) of estate must exist between the covenanting parties, and by force of the Statute a privity of contract is created between those who had a privity of estate, and is annexed to the reversion and transferred from reversioner to reversioner. An assignee of the reversion is entitled to the benefit of all covenants running with the land, entered into by a lessee with his lessor, provided such assignee be owner of the reversion immediately expectant on the term in the demised premises, and provided the estate of the reversioner be the same, or be derived(w) out

:

under seal see Brydges v. Lewis, 2 Gale & Dav. 763.

(p) 10 Car. I. Sess. 2, c. 4, s. 2, Irish; 32 Hen. VIII. c. 34, s. 2, English. (g) See the Duchess of Chandos v. Brownlow, 2 Ridg. Parl. Ca. 409. (r) Co. Litt. 214, A.

(s) Mayor of Congleton v. Pattison, 10 East, 135.

(t) Vyvyan v. Arthur, 1 B. & Cress. 416; 2 D. & Ry. 670, S. C.

(u) Jourdain v. Wilson, 4 B. & Ald. 266-268.

(v) Webb v. Russell, 3 T. R. 393402; Stokes v. Russell, 3 T. R. 681; Russell v. Stokes, in error, 1 H. Bla. 562. (w) Cardwell v. Lucas, 2 Mees. & W.

111.

of the same estate, which the lessor enjoyed at the time of granting the lease.

64. If the immediate reversion(x) expectant on a lease of demised premises become merged in some other reversion in the same land, the privity of estate will be destroyed, and not only the benefit of the covenants, but the rent and all remedies for its recovery will be lost. A termor for ninety-nine years, having made a lease for eleven years, assigned his reversion in the premises, and the assignee having purchased the reversion in fee, whereby his term merged in the inheritance, it was determined(y), that by reason of the merger of the term for ninetynine years, no action would lie at the suit of the assignee of the lessor's estate for breach of any of the covenants in the underlease.

A person possessed of a lease for 100 years made an underlease for twenty years, reserving rent with clause of re-entry, and the inheritor having afterwards conveyed the reversion in fee to a purchaser, who also bought the residue unexpired of the term of 100 years, it was resolved (2) that the purchaser should not have either the rent or benefit of re-entry, because the reversion of the term, to which they were incident, was extinguished in the reversion in fee; but if a lease for years be granted by the owner in fee rendering rent, the subsequent creation and surrender of a particular estate in the reversion will not affect the remedies of the reversioner against the lessee for rent: if the owner in fee demise for years at a rent, and afterwards grant the rent and reversion in mortgage for years, a re-assignment(a) of the mortgaged premises to the inheritor will not prejudice his right to the rent and covenants, because the same reversion continues in existence out of which the lease was derived. Husband and wife being seised to them and the heirs of the husband, by indenture demised for years, and the lessee covenanted with them and the heirs of the husband to keep the premises in repair: the husband and wife conveyed the reversion(b) to a purchaser, who brought an action of covenant, as assignee of the husband, against the lessee for not repairing; and upon an objection that the action should have been brought as assignee of both husband and wife, the Court held it was maintainable, as the life-estate of the wife

(x) Webb v. Russell, 3 T. R. 393; Roach v. Wadham, 6 East, 289; 2 Smith, 376; Thorn v. Woolcombe, 3 B. & Adol. 586.

(y) Webb v. Russell, 3 T. R. 393; Lord Tenterden said, in Thorn v. Woolcombe, 3 B. & Adol. 591, that the decision in Webb v. Russell caused a great

deal of feeling in Westminster Hall.

(z) Lord Treasurer v. Barton, Moor, 94; Chaworth v. Phillips, Moor, 876. (a) Lord Treasurer v. Barton, Moor,

94.

(b) Major v. Talbot, Cro. Car. 285; W. Jones, 305; Preston on Merger, 443.

was by the conveyance united to and consolidated with the inheri

tance.

65. Where an estate is sold, subject to an express covenant for payment of a fee-farm rent to the vendor, his heirs and assigns, if a subsequent purchaser do not take the estate of the original purchaser, he will not be bound by the covenant: an estate was conveyed to a trustee, his heirs and assigns, to such uses as the purchaser should appoint, and in default of appointment to the purchaser in fee, yielding and paying to the vendor, his heirs and assigns, a fee-farm rent, which the purchaser for himself, his heirs and assigns, covenanted to discharge the estate being afterwards(c) resold, was limited and appointed under the power to another purchaser, and it was determined that an action of covenant by the original vendor for recovery of the fee-farm rent against the second purchaser could not be supported, because the second purchaser being in under the power had not the estate of the first purchaser, and was not bound by his covenant to pay the rent, as the second purchaser came in paramount to and was not privy in estate with the first purchaser.

:

56. Covenants affecting the enjoyment of tithes or other incorporeal hereditaments are governed by the same rules as covenants respecting lands: a lessee of tithes covenanted for himself(d) and his assigns not to let any of the farmers, then occupying the lands out of which the tithes were to be produced, have any part of the tithes without the lessor's consent in writing, and it was ruled that the assignee of the lessee was answerable in damages for a breach of the covenant. So an action for breach of covenant in nonpayment of rent reserved upon(e) a demise of the tolls of a fair or market, lies against an assignee of the lease by force of the Irish Statute(ƒ), 11 Anne, c. 2, s. 6, which enacts, that all persons taking any assignment of all the residue of any term for years, or for life or lives, their executors or administrators shall be liable to all the covenants whereunto the lessees, their execucutors or administrators, were liable by virtue of their leases; and an opinion was intimated by the Court in this case, that an action(g) might be maintained against the assignee independently of the Statute.

(c) Roach v. Wadham, 6 East, 289; 2 Smith, 376, S. C.; and see Doe dem. Wigan v. Jones, 10 B. & Cress. 459; 5 M. & Ry. 563; Tunstall v. Trappes, 3 Simons, 300; Skeeles v. Shearly, 8 Simons, 153; 2 Sugd. Vend. 463.

(d) Bally v. Wells, 3 Wils. 25; Wilmot's Judg. 341; and see Collins v.

Plumb, 16 Vesey, 454.

(e) Lord Lucan v. Gildea, K. B. Hil. 1831; Lord Egremont v. Kean, Exch. Hil. 1837; 2 Jones's Rep. 307.

(ƒ) 11 Anne, c. 2, s. 6, Irish. There is no corresponding English enactment. (g) But see James v. Blunck, Hardres, 88.

Where, however, a lessee of tithes covenanted for himself and his assigns with the owners of lands, to accept a reasonable composition, not exceeding 3s. 6d. by the acre from the tenants of the lands in lieu of tithes in kind for twelve years, in a suit by an underlessee of the tithes against a tenant of part of the lands for tithe in kind, it was ruled(h) that the covenant was personal and merely collateral to the tithes, and that the occupier was subject to payment of tithe in kind, as no privity existed between him and the underlessee. The grant of an interest in a right of way over the lands of other persons, or the grant of any real hereditament for a term of years, may operate(i) as the grant of an interest within the Statute of Reversions(), so as to render an assignee of the grantee liable to an action for breach of covenant by the reversioner, or by an assignee of the reversion. Lord Portmore and Bennett Langton by indenture(k) granted a license to one Raby to continue a channel open through the bank of a navigable river for a term of years, paying a yearly rent, and the King's Bench held, that the grant of such a hereditament was an interest which would enable() the reversioner to maintain an action against the assignee of the grantee.

67. Where a lease is executed by the lessee, who enters into possession under it, but is not executed by the lessor, the covenants of the lessee can only be annexed to the reversion(m) expectant upon a mere demise at will, and cannot be annexed to the reversion expectant on the determination of the term specified in the deed; and as the existence of a yearly holding can only be inferred from an occupation by the lessee for more than a year after his execution of the lease, or from a subsequent payment of rent, his covenants cannot be annexed to a reversion expectant on the determination of a yearly holding, which could not arise until after the execution of the lease and the entry of the lessee: a lease, therefore, which is not executed by the lessor, does not pass any estate to the lessee, and there is no reversion expectant upon it capable of being assigned, and no action can be maintained by the assignee of such supposed reversion for breach of any of the covenants contained in the instrument.

68. A distinction is to be observed between(n) the benefit of, or

(h) Brewer v. Hill, 2 Anstr. 413. (1) Lord Portmore v. Bunn, 1 B. & Cress. 699, by Bayley, J.

() 10 Car. I. Sess. 2, c. 4, Irish; 32 Hen. VIII. c. 34, English.

(k) Lord Portmore v. Bunn, 1 B. & Cress. 694; 3 D. & Ry. 145; and see

Platt on Covenants, 541.

(See Collins v. Plumb, 16 Vesey,

454.

(m) Cardwell v. Lucas, 2 Mees. & W. 111; Cooch v. Goodman, 2 G. & Dav. 159; 2 Q. B. Rep. 580, S. C.

(n) See the Third Report of the Real