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450 32 H. 8, CAP. 34, COVENANTS. pendent agreement, not quodam modo, but nullo modo annexed or appurte- nant to the thing leased. In the case of the mere personalty, the covenant doth concern or touch the thing demised: for it is to restore it or the value at the end of the term; but it doth not bind the assignee, because there is no privity, as there is in the case of a realty between the lessor and lessee and his assigns, in respect of the reversion; it is merely collateral in one case; in the other it is not collateral, but they are total strangers to one another, without any line or thread to unite and tie them together, and to constitute that privity which must subsist between debtor and creditor to support an action. He adds, after citing several cases, "all these cases clearly prove that 'inherent' covenants, and such as tend to the support and maintenance of the thing demised, where assigns are expressly men- tioned, (vide, however, Minshull v. Oakes infra,) follow the reversion and the lease, let them go where they will." And, "to carry the lien of a per- sonal obligation over to an assignee, and to make him the object of an action at the suit of a person with whom he did not originally contract, he must in all cases be named, and there must also be a privity between the as- signee and the person to whom he becomes engaged, and the covenant must respect the thing leased. The chose in action, which of itself is not assign- able, loses that property under these circumstances, and in a waiting de- pendent state follows its principal, and assignees of leases become liable to assignees of reversions, and vice versa;" which sentence has, perhaps, in it a sound of anti-climax. In Bally v. Wells, a lessee of tithes covenanted, for himself and his as- signs, that he would not let any of the farmers in the parish have any part of the tithes, which covenant was held to run with the tithes, and bind the assignee against whom an action was brought for the breach of it; see S. C. 3 Wils. 25. So in Glenn v. Canby, 24 Md. 127, the Court observed that the established doctrine was, that a covenant to run with the land must extend to the land, so that the thing required to be done will affect the quality, value or mode of enjoying the estate conveyed, (the meaning of which expressions is explained and illustrated in Mayor of Congleton v. Pattison, 10 East, 136,) and thus constitute a condition annexed or ap- purtenant to it; there must also be a privity of estate between the con- tracting parties, and the covenant must be consistent with the estate to which it adheres, and of such a character that the estate will not be de- feated or changed by a performance of it. Accordingly, implied covenants,14 Spencer's case, 4th Resolution, see Vyvyan v. Arthur, 1 B. & C. 410—express covenants, such as, to reside 343 constantly on the premises,* Tatem v. Chaplin, 2 H. Black. 133;— to repair, Dean of Windsor's case, 5 Rep. 24 a; Thomas v. Von Kapff infra; —to repair the demised premises and all other buildings which might there- after be erected on the land during the term, it being considered that the covenant was not a covenant absolutely to do a new thing, but to do some- thing conditionally, viz. if new buildings were erected on the demised pre- mises, to repair them, as when built they would be part of the thing de- l< See Poe's Pleading, sec. 330. As to dedication by implied covenant, see note 9 to 4 E. 1, St. 3, c. 6. |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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