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es are here appendant to the manor。
Thorpe； C。 J。； to Belknap： 〃There are some covenants on which no one shall have an action； but the party to the covenant； or his heir； and some covenants have inheritance in the land； so that whoever has the land by alienation； or in other manner； shall have action of covenant； ＇or； as it is stated in Fitzherbert's Abridgment； /1/ the inhabitants of the land as well as every one who has the land； shall have the covenant；＇ and when you say he is not heir； he is privy of blood； and may be heir： /2/ and also he is tenant of the land； and it is a thing which is annexed to the chapel； which is in the manor； and so annexed to the manor； and so he has said that the services have been rendered for all time whereof there is memory； whence it is right this action should be maintained。〃 Belknap denied that the plaintiff counted on such a prescription； but Thorpe said he did； and we bear record of it； and the case was adjourned。 /3/
It will be seen that the discussion followed the lines marked out by the pleading。 One judge thought that ＇398＇ the plaintiff was entitled to recover as tenant of the manor。 The other puisne doubted； but agreed that the case must be discussed on the analogy of easements。 The Chief Justice； after suggesting the possibility of sufficient privity on the ground that the plaintiff was privy in blood and might be heir； turns to the other argument as more promising； and evidently founds his opinion upon it。 /1/ It would almost seem that he considered a prescriptive right enough to support the action； and it is pretty clear that he thought that a disseisor would have had the same rights as the plaintiff。
In the reign of Henry IV。； another case /2/ arose upon a covenant very like the last。 But this time the facts were reversed。 The plaintiff counted as heir； but did not allege that he was tenant of the manor。 The defendant； not denying the plaintiff's descent； pleaded in substance that he was not tenant of the manor in his own right。 The question raised by the pleadings； therefore； was whether the heir of the covenantee could sue without being tenant of the manor。 If the covenant was to be approached from the side of contract； the heir was party to it as representing the covenantee。 If； on the other hand； it was treated as amounting to the grant of a service like an easement； it would naturally go with the manor if made to the lord of the manor。 It seems to have been thought that such a covenant might go either way； according as it was made to the tenant of the manor or to a stranger。 Markham； one of the judges； says： 〃In a writ of covenant one must be privy to the covenant if he would have a writ of covenant or aid by the covenant。 But； peradventure； if the covenant ＇399＇ had been made with the lord of the manor； who had inheritance in the manor； ou issint come determination poit estre fait； it would be otherwise；〃 which was admitted。 /1/ It was assumed that the covenant was not so made as to attach to the manor； and the court； observing that the service was rather spiritual than temporal； were inclined to think that the heir could sue。 /2/ The defendant accordingly over and set up a release。 It will be seen how fully this agrees with the former case。
The distinction taken by Markham is stated very clearly in a reported by Lord Coke。 In the argument of Chudleigh's Case the line is drawn thus： 〃Always； the warranty as to voucher requires privity of estate to which it was annexed；〃 （i。e。 succession to the original covenantee；） 〃and the same law of a use 。。。。 But of things annexed to land； it is otherwise； as of commons； advowsons； and the like appendants or appurtenances 。。。。 So a disseisor； abator； intruder； or the lord by escheat； &c。； shall have them as things annexed to the land。 So note a diversity between a use or warranty； and the like things annexed to the estate of the land in privity； and commons； advowsons； and other hereditaments annexed to the possession of the land。〃 /3/ And this； it seems to me； is the nearest approach which has ever been made to the truth。
Coke； in his Commentary on Littleton （385 a）； takes a distinction between a warranty； which binds the party to yield lands in recompense； and a covenant annexed to the land； which is to yield but damages。 If Lord Coke had ＇400＇ meant to distinguish between warranties and all covenants which in our loose modern sense are said to run with the land； this statement would be less satisfactory than the preceding。
A warranty was a covenant which sometimes yielded but damages； and a covenant in the old law sometimes yielded land。 In looking at the early cases we are reminded of the still earlier German procedure； in which it did not matter whether the plaintiff's claim was founded on a right of property in a thing； or simply on a contract for it。 /1/ Covenant was brought for a freehold under Edward I。； /2/ and under Edward III。 it seems that a mill could be abated by the same action； when maintained contrary to an easement created by covenant。 /3/ But Lord Coke did not mean to lay down any sweeping doctrine； for his conclusion is； that 〃a covenant is in many cases extended further than the warrantie。〃 Furthermore； this statement； as Lord Coke meant it； is perfectly consistent with the other and more important distinction between warranties and rights in the nature of easements or covenants creating such rights。 For Lord Coke's examples are confined to covenants of the latter sort； being in fact only the cases just stated from the Year Books。
Later writers； however； have wholly forgotten the distinction in question； and accordingly it has failed to settle the disputed line between conflicting principles。 Covenants which started from the analogy of warranties； and others to which was applied the language and reasoning of easements； have been confounded together under the title of ＇401＇ covenants running with the land。 The phrase 〃running with the land〃 is only appropriate to covenants which pass like easements。 But we can easily see how it came to be used more loosely。
It has already been shown that covenants for title； like warranties； went only to successors of the original covenantee。 The technical expression for the rule was that they were annexed to the estate in privity。 Nothing was easier than to overlook the technical use of the word 〃estate；〃 and to say that such covenants went with the land。 This was done； and forthwith all distinctions became doubtful。 It probably had been necessary to mention assigns in covenants for title； as it certainly had been to give them the benefit of the ancient warranty； /1/ for this seems to have been the formal mark of those covenants which passed only to privies。 But it was not necessary to mention assigns in order to attach easements and the like to land。 Why should it be necessary for one covenant running with the land more than another？ and if necessary for one； why not for all？ /2/ The necessity of such mention in modern times has been supposed to be governed by a fanciful rule of Lord Coke's。 /3/ On the other hand； the question is raised whether covenants which should pass irrespective of privity are not governed by the same rule which governs warranties。
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