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hould pass irrespective of privity are not governed by the same rule which governs warranties。
These questions have not lost their importance。 Covenants for title are in every deed； and other covenants are ＇402＇ only less common； which； it remains to show； belong to the other class。
Chief among these is the covenant to repair。 It has already been observed that an easement of fencing may be annexed to land； and it was then asked what was the difference in kind between a right to have another person build such structures； and a right to have him repair structures already built。 Evidence is not wanting to show that the likeness was perceived。 Only； as such covenants are rarely； if ever； made； except in leases； there is always privity to the original parties。 For the lease could not； and the reversion would not be likely to； go by disseisin。
The Dean of Windsor's Case decides that such a covenant binds an assignee of the term； although not named。 It is reported in two books of the highest authority； one of the reporters being Lord Coke； the other Croke； who was also a judge。 Croke gives the reason thus： 〃For a covenant which runs and rests with the land lies for or against the assignee at the common law； quia transit terra cum onere； although the assignees be not named in the covenant。〃 /1/ This is the reason which governed easements； and the very phrase which was used to account for all possessors being bound by a covenant binding a parcel of land to warranty。 Coke says； 〃For such covenant which extends to the support of the thing demised is quodammodo appurtenant to it； and goes with it。〃 Again the language of easements。 And to make this plainer； if need be； it is added； 〃If a man grants to one estovers to repair his house； it is appurtenant to his house。〃 Estovers for ＇403＇ repair went with the land； like other rights of common； /1/ which； as Lord Coke has told us； passed even to disseisors。
In the next reign the converse proposition was decided； that an assignee of the reversion was entitled in like manner to the benefit of the covenant； because 〃it is a covenant which runs with the land。〃 /2/ The same law was applied； with still clearer reason； to a covenant to leave fifteen acres unploughed for pasture； which was held to bind an assignee not named； /3/ and； it would seem； to a covenant to keep land properly manured。 /4/
If the analogy which led to this class of decisions were followed out； a disseisor could sue or be sued upon such covenants； if the other facts were of such a kind as to raise the question。 There is nothing but the novelty of the proposition which need prevent its being accepted。 It has been mentioned above； that words of covenant may annex an easement to land； and that words of grant may import a covenant。 It would be rather narrow to give a disseisor one remedy； and deny him another； where the right was one； and the same words made both the grant and the covenant。 /5/
The language commonly used； however； throws doubt and darkness over this and every other question connected with the subject。 It is a consequence； already referred to； of confounding covenants for title； and the class last discussed； ＇404＇ under the name of covenants running with the land。 According to the general opinion there must be a privity of estate between the covenantor and covenantee in the latter class of cases in order to bind the assigns of the covenantor。 Some have supposed this privity to be tenure； some； an interest of the covenantee in the land of the covenantor； and so on。 /1/ The first notion is false； the second misleading； and the proposition to which they are applied is unfounded。 Privity of estate； as used in connection with covenants at common law； does not mean tenure or easement； it means succession to a title。 /2/ It is never necessary between covenantor and covenantee； or any other persons； except between the present owner and the original covenantee。 And on principle it is only necessary between them in those casessuch as warranties； and probably covenants for titlewhere； the covenants being regarded wholly from the side of contract； the benefit goes by way of succession； and not with the land。
If now it should be again asked； at the end of this long discussion； where the line is to be drawn between these two classes of covenants； the answer is necessarily vague in view of the authorities。 The following propositions may be of some service。
*A。 With regard to covenants which go with the land：
*（1。） Where either by tradition or good sense the burden of the obligation would be said； elliptically； to fall on the land of the covenantor； the creation of such a burden is in theory a grant or transfer of a partial interest in ＇405＇ that land to the covenantee。 As the right of property so created can be asserted against every possessor of the land； it would not be extravagant or absurd to allow it to be asserted by the action of covenant。
*（2。） Where such a right is granted to the owner of a neighboring piece of land for the benefit of that land； the right will be attached to the land； and go with it into all hands。 The action of covenant would be allowed to assigns not named； and it would not be absurd to give it to disseisors。
*（3。） There is one case of a service； the burden of which does not fall upon land even in theory； but the benefit of which might go at common law with land which it benefited。 This is the case of singing and the like by a convent。 It will be observed that the service； although not falling on land； is to be performed by a corporation permanently seated in the neighborhood。 Similar cases are not likely to arise now。
*B。 With regard to covenants which go only with the estate in the land：
In general the benefit of covenants which cannot be likened to grants； and the burden of which does not fall on land； is confined to the covenantee and those who sustain his persona； namely； his executor or heir。 In certain cases； of which the original and type was the ancient warranty； and of which the modern covenants for title are present examples； the sphere of succession was enlarged by the mention of assigns； and assigns are still allowed to represent the original covenantee for the purposes of that contract。 But it is only by way of succession that any other person than the party to the contract can sue upon it。 Hence the plaintiff must always be privy in estate with the covenantee。
＇406＇ C。 It is impossible； however； to tell by general reasoning what rights will be held in English law to belong to the former class； or where the line will be drawn between the two。 The authorities must be consulted as an arbitrary fact。 Although it might sometimes seem that the test of the first was whether the service was of a nature capable of grant； so that if it rested purely in covenant it would not follow the land； /l / yet if this test were accepted； it has already been shown that； apart from tradition； some services which do follow the land could only be matter of covenant。 The grant of light and air； a well… established easement； is called a covenant not to build on the servient land to the injury of the light； by Baron Parke。 /2/ And although this might be doubted； /3/ it has been se