[371] LECTURE XI.
SUCCESSIONS. - II. INTER VIVOS.
The principal contracts known to the common law and suable in the
King's Courts, a century after the Conquest, were suretyship and
debt. The heir, as the general representative of his ancestor's
rights and obligations, was liable for his debts, and was the
proper person to sue for those which were due the estate. By the
time of Edward III. this had changed. Debts had ceased to concern
the heir except secondarily. The executor took his place both for
collection and payment. It is said that even when the heir was
bound he could not be sued except in case the executor had no
assets. /1/
But there was another ancient obligation which had a different
history. I refer to the warranty which arose upon the transfer of
property. We should call it a contract, but it probably presented
itself to the mind of Glanvill's predecessors simply as a duty or
obligation attached by law to a transaction which was directed to
a different point; just as the liability of a bailee, which is
now treated as arising from his undertaking, was originally
raised by the law out of the position in which he stood toward
third persons.
After the Conquest we do not hear much of warranty, except in
connection with land, and this fact will at once [372] account
for its having had a different history from debt. The obligation
of warranty was to defend the title, and, if the defence failed,
to give to the evicted owner other land of equal value. If an
ancestor had conveyed lands with warranty, this obligation could
not be fulfilled by his executor, but only by his heir, to whom
his other lands had descended. Conversely as to the benefit of
warranties made to a deceased grantee, his heir was the only
person interested to enforce such warranties, because the land
descended to him. Thus the heir continued to represent his
ancestor in the latter's rights and obligations by way of
warranty, after the executor had relieved him of the debts, just
as before that time he had represented his ancestor in all
respects.
If a man was sued for property which he had bought from another,
the regular course of litigation was for the defendant to summon
in his seller to take charge of the defence, and for him, in
turn, to summon in his, if he had one, and so on until a party
was reached in the chain of title who finally took the burden of
the case upon himself. A contrast which was early stated between
the Lombard and the Roman law existed equally between the
Anglo-Saxon and the Roman. It was said that the Lombard presents
his grantor, the Roman stands in his grantor's
shoes,--Langobardus dat auctorem, Romanus stat loco auctoris. /1/
Suppose, now, that A gave land to B, and B conveyed over to C. If
C was sued by D, claiming a better title, C practically got the
benefit of A's warranty, /2/ because, when he summoned B, B would
summon A, and thus A [373] would defend the case in the end. But
it might happen that between the time when B conveyed to C, and
the time when the action was begun, B had died. If he left an
heir, C might still be protected. But supposing B left no heir, C
got no help from A, who in the other event would have defended
his suit. This no doubt was the law in the Anglo-Saxon period,
but it was manifestly unsatisfactory. We may conjecture, with a
good deal of confidence, that a remedy would be found as soon as
there was machinery to make it possible. This was furnished by
the Roman law. According to that system, the buyer stood in the
place of his seller, and a fusion of the Roman with the
Anglo-Saxon rule was all that was needed.
Bracton, who modelled his book upon the writings of the mediaeval
civilians, shows how this thought was used. He first puts the
case of a conveyance with the usual clause binding the grantor
and his heirs to warrant and defend the grantee and his heirs. He
then goes on: "Again one may make his gift greater and make other
persons quasi heirs [of his grantee], although, in fact, they are
not heirs, as when he says in the gift, to have and to hold to
such a one and his heirs, or to whomsoever he shall choose to
give or assign the said land, and I and my heirs will warrant to
the said so and so, and his heirs, or to whomsoever he shall
choose to give or assign the said land, and their heirs, against
all persons. In which case if the grantee shall have given or
assigned the land, and then have died without heirs, the [first]
grantor and his heirs begin to hold the place of the first
grantee and his heirs, and are in place of the first grantee's
heir (pro herede) so far as concerns warranting to his assigns
and their heirs [374] according to the clause contained in the
first grantor's charter, which would not be but for the mention
of assigns in the first gift. But so long as the first grantee
survives, or his heirs, they are held to warranty, and not the
first grantor." /1/
Here we see that, in order to entitle the assign to the benefit
of the first grantor's warranty, assigns must be mentioned in the
original grant and covenant. The scope of the ancient obligation
was not extended without the warrantor's assent. But when it was
extended, it was not by a contrivance like a modern letter of
credit. Such a conception would have been impossible in that
stage of the law. By mentioning assigns the first grantor did not
offer a covenant to any person who would thereafter purchase the
land. If that had been the notion, there would have been a
contract directly binding the first grantor to the assign, as
soon as the land was sold, and thus there would have been two
warranties arising from the same clause,--one to the first
grantee, a second to the assign. But in fact the assign recovered
on the original warranty to the first grantee. /2/ He could only
come on the first grantor after a failure of his immediate
grantor's heirs. The first grantor by mentioning assigns simply
enlarged the limits of his grantee's succession. The assign could
vouch the first grantor only on the principles of succession.
That is to say, he could only do so when, by the failure of the
first grantee's blood, the first grantee's feudal relation to the
first grantor, his persona, came to be sustained by the assign.
/3/
[375] This was not only carrying out the fiction with technical
consistency, but was using it with good sense, as fictions
generally have been used in the English law. Practically it made
little difference whether the assign got the benefit of the first
grantor's warranty mediately or immediately, if he got it. The
trouble arose where he could not summon the mesne grantor, and
the new right was given him for that case alone. Later, the
assign did not have to wait for the failure of his immediate
grantor's blood, but could take advantage of the first grantor's
warranty from the beginning. /1/
If it should be suggested that what has been said goes to show
that the first grantor's duty to warrant arose from the assign's
becoming his man and owing homage, the answer is that he was not
bound unless he had mentioned assigns in his grant, homage or no
homage. In this Bracton is confirmed by all the later
authorities. /2/
Another rule on which there are vast stores of forgotten learning
will show how exactly the fiction fell in with the earlier law.
Only those who were privy in estate with the person to whom the
warranty was originally given, could vouch the original
warrantor. Looking back to the early [376] procedure, it will be
seen that of course only those in the same chain of title could
even mediately get the benefit of a former owner's warranty. The
ground on which a man was bound to warrant was that he had
conveyed the property to the person who summoned him. Hence a man
could summon no one but his grantor, and the successive vouchers
came to an end when the last vouchee could not call on another
from whom he had bought. Now when the process was abridged, no
persons were made liable to summons who would not have been
liable before. The present owner was allowed to vouch directly
those who otherwise would have been indirectly bound to defend
his title, but no others. Hence he could only summon those from
whom his grantor derived his title. But this was equally well
expressed in terms of the fiction employed. In order to vouch,
the present owner must have the estate of the person to whom the
warranty was made. As every lawyer knows, the estate does not
mean the land. It means the status or persona in regard to that
land formerly sustained by another. The same word was used in
alleging a right by prescription, "that he and those whose estate
he hath have for time whereof memory runneth not to the
contrary," &c.; and it will be remembered that the word
corresponds to the same requirement of succession there.
To return to Bracton, it must be understood that the description
of assigns as quasi heredes is not accidental. He describes them
in that way whenever he has occasion to speak of them. He even
pushes the reasoning drawn from the analogy of inheritance to
extremes, and refers to it in countless passages. For instance:
"It should be noted that of heirs some are true heirs and some
quasi [377] heirs, in place of heirs, &c.; true heirs by way of
succession quasi heirs, &c. by the form of the gift; such as
assigns," &c. /1/
If it should be suggested that Bracton's language is only a piece
of mediaeval scholasticism, there are several answers. In the
first place it is nearly contemporaneous with the first
appearance of the right in question. This is shown by his citing
authority for it as for something which might be disputed. He
says, "And that warranty must be made to assigns according to the
form of the gift is proved [by a case] in the circuit of W. de
Ralegh, about the end of the roll,"&c. /2/ It is not justifiable
to assume that a contemporary explanation of a new rule had
nothing to do with its appearance. Again, the fact is clear that
the assign got the benefit of the warranty to the first grantee,
not of a new one to himself, as has been shown, and Bracton's
explanation of how this was worked out falls in with what has
been seen of the course of the German and Anglo-Saxon law, and
with the pervading thought of the Roman law. Finally, and most
important, the requirement that the assign should be in of the
first grantee's estate has remained a requirement from that day
to this. The fact that the same thing is required in the same
words as in prescription goes far to show that the same technical
thought has governed both.
I have said, Glanvill's predecessors probably regarded warranty
as an obligation incident to a conveyance, rather than as a
contract. But when it became usual to insert the undertaking to
warrant in a deed or charter of feoffment, it lost something of
its former isolation as a duty standing by itself, and admitted
of being [378] generalized. It was a promise by deed, and a
promise by deed was a covenant. /1/ This was a covenant having
peculiar consequences attached to it, no doubt. It differed also
in the scope of its obligation from some other covenants, as will
be shown hereafter. But still it was a covenant, and could
sometimes be sued on as such. It was spoken of in the Year Books
of Edward III. as a covenant which "falls in the blood," /2/ as
distinguished from those where the acquittance fell on the land,
and not on the person. /3/
The importance of this circumstance lies in the working of the
law of warranty upon other covenants which took its place. When
the old actions for land gave way to more modern and speedier
forms, warrantors were no longer vouched in to defend, and if a
grantee was evicted, damages took the place of a grant of other
land. The ancient warranty disappeared, and was replaced by the
covenants which we still find in our deeds, including the
covenants for seisin, for right to convey, against incumbrances,
for quiet enjoyment, of warranty, and for further assurance. But
the principles on which an assign could have the benefit of these
covenants were derived from those which governed warranty, as any
one may see by looking at the earlier decisions.
For instance, the question, what was a sufficient assignment to
give an assign the benefit of a covenant for quiet enjoyment, was
argued and decided on the authority of the old cases of warranty.
/4/
[379] The assign, as in warranty, came in under the old covenant
with the first covenantee, not by any new right of his own. Thus,
in an action by an assign on a covenant for further assurance,
the defendant set up a release by the original covenantee after
the commencement of the suit. The court held that the assignee
should have the benefit of the covenant. "They held, that
although the breach was in the time of the assignee, yet if the
release had been by the covenantee (who is a party to the deed,
and from whom the plaintiff derives) before any breach, or before
the suit commenced, it had been a good bar to the assignee from
bringing this writ of covenant. But the breach of the covenant
being in the time of the assignee, ... and the action brought by
him, and so attached in his person, the covenantee cannot release
this action wherein the assignee is interested." /1/ The
covenantee even after assignment remains the legal party to the
contract. The assign comes in under him, and does not put an end
to his control over it, until by breach and action a new right
attaches in the assign's person, distinct from the rights derived
from the persona of his grantor. Later, the assign got a more
independent standing, as the original foundation of his rights
sunk gradually out of sight, and a release after assignment
became ineffectual, at least in the case of a covenant to pay
rent. /2/
Only privies in estate with the original covenantee can have the
benefit of covenants for title. It has been shown that a similar
limitation of the benefits of the ancient [380] warranty was
required by its earlier history before the assign was allowed to
sue, and that the fiction by which he got that right could not
extend it beyond that limit. This analogy also was followed. For
instance, a tenant in tail male made a lease for years with
covenants of right to let and for quiet enjoyment, and then died
without issue male. The lessee assigned the lease to the
plaintiff. The latter was soon turned out, and thereupon brought
an action upon the covenant against the executor of the lessor.
It was held that he could not recover, because he was not privy
in estate with the original covenantee. For the lease, which was
the original covenantee's estate, was ended by the death of the
lessor and termination of the estate tail out of which the lease
was granted, before the form of assignment to the plaintiff. /1/
The only point remaining to make the analogy between covenants
for title and warranty complete was to require assigns to be
mentioned in order to enable them to sue. In modern times, of
course, such a requirement, if it should exist, would be purely
formal, and would be of no importance except as an ear-mark by
which to trace the history of a doctrine. It would aid our
studies if we could say that wherever assigns are to get the
benefit of a covenant as privies in estate with the covenantee,
they must be mentioned in the covenant. Whether such a
requirement does exist or not would be hard to tell from the
decisions alone. It is commonly supposed not to. But the popular
opinion on this trifling point springs from a failure to
understand one of the great antinomies of the law, which must now
be explained.
So far as we have gone, we have found that, wherever [381] one
party steps into the rights or obligations of another, without in
turn filling the situation of fact of which those rights or
obligations are the legal consequences, the substitution is
explained by a fictitious identification of the two individuals,
which is derived from the analogy of the inheritance. This
identification has been seen as it has been consciously worked
out in the creation of the executor, whose entire status is
governed by it. It has been seen still consciously applied in the
narrower sphere of the heir. It has been found hidden at the root
of the relation between buyer and seller in two cases at least,
prescription and warranty, when the history of that relation is
opened to a sufficient depth.
But although it would be more symmetrical if this analysis
exhausted the subject, there is another class of cases in which
the transfer of rights takes place upon a wholly different plan.
In explaining the succession which is worked out between buyer
and seller for the purpose of creating a prescriptive right, such
as a right of way over neighboring land to the land bought and
sold, it was shown that one who, instead of purchasing the land,
had wrongfully possessed himself of it by force, would not be
treated as a successor, and would get no benefit from the
previous use of the way by his disseisee. But when the former
possessor has already gained a right of way before he is turned
out, a new principle comes into operation. If the owner of the
land over which the way ran stopped it up, and was sued by the
wrongful possessor, a defence on the ground that the disseisor
had not succeeded to the former owner's rights would not prevail.
The disseisor would be protected in his possession of the land
against all but the rightful owner, and he would equally be
protected [382] in his use of the way. This rule of law does not
stand on a succession between the wrongful possessor and the
owner, which is out of the question. Neither can it be defended
on the same ground as the protection to the occupation of the
land itself. That ground is that the law defends possession
against everything except a better title. But, as has been said
before, the common law does not recognize possession of a way. A
man who has used a way ten years without title cannot sue even a
stranger for stopping it. He was a trespasser at the beginning,
he is nothing but a trespasser still. There must exist a right
against the servient owner before there is a right against
anybody else. At the same time it is clear that a way is no more
capable of possession because somebody else has a right to it,
than if no one had.
How comes it, then, that one who has neither title nor possession
is so far favored? The answer is to be found, not in reasoning,
but in a failure to reason. In the first Lecture of this course
the thought with which we have to deal was shown in its
theological stage, to borrow Comte's well-known phraseology, as
where an axe was made the object of criminal process; and also in
the metaphysical stage, where the language of personification
alone survived, but survived to cause confusion of reasoning. The
case put seems to be an illustration of the latter. The language
of the law of easements was built up out of similes drawn from
persons at a time when the noxoe deditio was still familiar; and
then, as often happens, language reacted upon thought, so that
conclusions were drawn as to the rights themselves from the terms
in which they happened to be expressed. When one estate was said
to be enslaved to another, or a right of way was said to be a
quality or [383] incident of a neighboring piece of land, men's
minds were not alert to see that these phrases were only so many
personifying metaphors, which explained nothing unless the figure
of speech was true.
Rogron deduced the negative nature of servitudes from the rule
that the land owes the services, not the person,--Proedium non
persona servit. For, said Rogron, the land alone being bound, it
can only be bound passively. Austin called this an "absurd
remark." /1/ But the jurists from whom we have inherited our law
of easements were contented with no better reasoning. Papinian
himself wrote that servitudes cannot be partially extinguished,
because they are due from lands, not persons. /2/ Celsus thus
decides the case which I took for my illustration: Even if
possession of a dominant estate is acquired by forcibly ejecting
the owner, the way will be retained; since the estate is
possessed in such quality and condition as it is when taken. /3/
The commentator Godefroi tersely adds that there are two such
conditions, slavery and freedom; and his antithesis is as old as
Cicero. /4/ So, in another passage, Celsus asks, What else are
the rights attaching to land but qualities of that land? /5/ So
Justinian's Institutes speak of servitudes which inhere in
buildings. /6/ So Paulus [384] speaks of such rights as being
accessory to bodies. "And thus," adds Godefroi, "rights may
belong to inanimate things." /1/ It easily followed from all this
that a sale of the dominant estate carried existing easements,
not because the buyer succeeded to the place of the seller, but
because land is bound to land. /2/
All these figures import that land is capable of having rights,
as Austin recognizes. Indeed, he even says that the land "is
erected into a legal or fictitious person, and is styled
'praedium dominans.'" /3/ But if this means anything more than to
explain what is implied by the Roman metaphors, it goes too far.
The dominant estate was never "erected into a legal person,"
either by conscious fiction or as a result of primitive beliefs.
/4/ It could not sue or be sued, like a ship in the admiralty. It
is not supposed that its possessor could maintain an action for
an interference with an easement before his time, as an heir
could for an injury to property of the hereditas jacens. If land
had even been systematically treated as capable of acquiring
rights, the time of a disseisee might have been added to that Of
the wrongful occupant, on the ground that the land, and not this
or that individual, was gaining the easement, and that long
association between the enjoyment of the privilege and the land
was sufficient, which has never been the law.
All that can be said is, that the metaphors and similes employed
naturally led to the rule which has prevailed, [385] and that, as
this rule was just as good as any other, or at least was
unobjectionable, it was drawn from the figures of speech without
attracting attention, and before any one had seen that they were
only figures, which proved nothing and justified no conclusion.
As easements were said to belong to the dominant estate, it
followed that whoever possessed the land had a right of the same
degree over what was incidental to it. If the true meaning had
been that a way or other easement admits of possession, and is
taken possession of with the land to which it runs, and that its
enjoyment is protected on the same grounds as possession in other
cases, the thought could have been understood. But that was not
the meaning of the Roman law, and, as has been shown, it is not
the doctrine of ours. We must take it that easements have become
an incident of land by an unconscious and unreasoned assumption
that a piece of land can have rights. It need not be said that
this is absurd, although the rules of law which are based upon it
are not so.
Absurd or not, the similes as well as the principles of the Roman
law reappear in Bracton. He says, "The servitude by which land is
subjected to [other] land, is made on the likeness of that by
which man is made the slave of man." /1/ "For rights belong to a
free tenement, as well as tangible things.... They may be called
rights or liberties with regard to the tenements to which they
are owed, but servitudes with regard to the tenements by which
they are owed .... One estate is free, the other subjected to
slavery." /2/ "[A servitude] may be called an arrangement by
which house is subjected to house, farm to [386] farm, holding to
holding." /1/ No passage has met my eye in which Bracton
expressly decides that an easement goes with the dominant estate
upon a disseisin, but what he says leaves little doubt that he
followed the Roman law in this as in other things.
The writ against a disseisor was for "so much land and its
appurtenances," /2/ which must mean that he who had the land even
wrongfully had the appurtenances. So Bracton says an action is in
rem "whether it is for the principal thing, or for a right which
adheres to the thing, ... as when one sues for a right of way,
... since rights of this sort are all incorporeal things, and are
quasi possessed and reside in bodies, and cannot be got or kept
without the bodies in which they inhere, nor in any way had
without the bodies to which they belong." /3/ And again, "Since
rights do not admit of delivery, but are transferred with the
thing in which they are, that is, the bodily thing, he to whom
they are transferred forthwith has a quasi possession of those
rights as soon as he has the body in which they are." /4/
There is no doubt about the later law, as has been said at the
outset.
We have thus traced two competing and mutually inconsistent
principles into our law. On the one hand is the conception of
succession or privity; on the other, that of rights inhering in a
thing. Bracton seems to have vacillated a little from a feeling
of the possibility of conflict between the two. The benefit of a
warranty was confined to those who, by the act and consent of the
[387] grantee, succeeded to his place. It did not pass to assigns
unless assigns were mentioned. Bracton supposes grants of
easements with or without mention of assigns, which looks as if
he thought the difference might be material with regard to
easements also. He further says, that if an easement be granted
to A, his heirs and assigns, all such by the form of the grant
are allowed the use in succession, and all others are wholly
excluded. /1/ But he is not speaking of what the rights of a
disseisor would be as against one not having a better title, and
he immediately adds that they are rights over a corporeal object
belonging to a corporeal object.
Although it may be doubted whether the mention of assigns was
ever necessary to attach an easement to land, and although it is
very certain that it did not remain so long, the difficulty
referred to grew greater as time went on. It would have been
easily disposed of if the only rights which could be annexed to
land were easements, such as a right of way. It then might have
been said that these were certain limited interests in land, less
than ownership in extent, but like it in kind, and therefore
properly transferred by the same means that ownership was. A
right of way, it might have been argued, is not to be approached
from the point of view of contract. It does not presuppose any
promise on the part of the servient owner. His obligation,
although more troublesome to him than to others, is the same as
that of every one else. It is the purely negative duty not to
obstruct or interfere with a right of property. /2/
[388] But although the test of rights going with the land may
have been something of that nature, this will not help us to
understand the cases without a good deal of explanation. For such
rights might exist to active services which had to be performed
by the person who held the servient estate. It strikes our ear
strangely to hear a right to services from an individual called a
right of property as distinguished from contract. Still this will
be found to have been the way in which such rights were regarded.
Bracton argues that it is no wrong to the lord for the tenant to
alienate land held by free and perfect gift, on the ground that
the land is bound and charged with the services into whose hands
soever it may come. The lord is said to have a fee in the homage
and services; and therefore no entry upon the land which does not
disturb them injures him. /1/ It is the tenement which imposes
the obligation of homage, /2/ and the same thing is true of
villein and other feudal services. /3/
The law remained unchanged when feudal services took the form of
rent. /4/ Even in our modern terms for years rent is still
treated as something issuing out of the leased premises, so that
to this day, although, if you hire a whole house and it burns
down, you have to pay without abatement, because you have the
land out of which the rent issues, yet if you only hire a suite
of rooms and they are burned, you pay rent no longer, because you
no longer have the tenement out of which it comes. /5/
[389] It is obvious that the foregoing reasoning leads to the
conclusion that a disseisor of the tenant would be bound as much
as the tenant himself, and this conclusion was adopted by the
early law. The lord could require the services, /1/ or collect
the rent /2/ of any one who had the land, because, as was said in
language very like Bracton's, "the charge of the rent goes with
the land." /3/
Then as to the right to the rent. Rent was treated in early law
as a real right, of which a disseisin was possible, and for which
a possessory action could be brought. If, as was very frequently
the case, the leased land lay within a manor, the rent was parcel
of the manor, /4/ so that there was some ground for saying that
one who was seised of the manor, that is, who possessed the lands
occupied by the lord of the manor, and was recognized by the
tenants as lord, had the rents as incident thereto. Thus Brian,
Chief Justice of England under Henry VII., says, "If I am
disseised of a manor, and the tenants pay their rent to the
disseisor, and then I re-enter, I shall not have the back rent of
my tenants which they have paid to my disseisor, but the
disseisor shall pay for all in trespass or assize." /5/ This
opinion was evidently founded on the notion that the rent was
attached to the chief land like an easement. Sic fit ut debeantur
rei a re. /6/
Different principles might have applied when the rent was not
parcel of a manor, and was only part of the reversion; that is,
part of the landlord's fee or estate out of [390] which the lease
was carved. If the lease and rent were merely internal divisions
of that estate, the rent could not be claimed except by one who
was privy to that estate. A disseisor would get a new and
different fee, and would not have the estate of which the rent
was part. And therefore it would seem that in such a case the
tenant could refuse to pay him rent, and that payment to him
would be no defence against the true owner. /1/ Nevertheless, if
the tenant recognized him, the disseisor would be protected as
against persons who could not show a better title. /2/
Furthermore, the rent was so far annexed to the land that whoever
came by the reversion lawfully could collect it, including the
superior lord in case of escheat. /3/ Yet escheat meant the
extinction of the fee of which the lease and rent were parts, and
although Bracton regarded the lord as coming in under the
tenant's title pro herede, in privity, it was soon correctly
settled that he did not, but came in paramount. This instance,
therefore, comes very near that of a disseisor.
Services and rent, then, were, and to some extent are still,
dealt with by the law from the point of view of property. They
were things which could be owned and transferred like other
property. They could be possessed even by wrong, and possessory
remedies were given for them.
No such notion was applied to warranties, or to any right which
was regarded wholly from the point of view of contract. And when
we turn to the history of those remedies for rent which sounded
in contract, we find that they were so regarded. The actions of
debt and covenant [391] could not be maintained without privity.
In the ninth year of Henry VI. /1/ it was doubted whether an heir
having the reversion by descent could have debt, and it was held
that a grantee of the reversion, although he had the rent, could
not have that remedy for it. A few years later, it was decided
that the heir could maintain debt, /2/ and in Henry VII.'s reign
the remedy was extended to the devisee, /3/ who, as has been
remarked above, seemed more akin to the heir than a grantee, and
was more easily likened to him. It was then logically necessary
to give assigns the same action, and this followed. /4/ The
privity of contract followed the estate, so that the assignee of
the reversion could sue the person then holding the term. /5/ On
like grounds he was afterwards allowed to maintain covenant. /6/
But these actions have never lain for or against persons not
privy in estate with the lessor and lessee respectively, because
privity to the contract could never be worked out without
succession to the title. /7/
However, all these niceties had no application to the old
freehold rents of the feudal period, because the contractual
remedies did not apply to them until the time of Queen Anne. /8/
The freehold rent was just as much real estate as an acre of
land, and it was sued for by the similar remedy of an assize,
asking to be put back into possession.
[392] The allowance of contractual remedies shows that rent and
feudal services of that nature, although dealt with as things
capable of possession, and looked at generally from the point of
view of property rather than of contract, yet approach much
nearer to the nature of the latter than a mere duty not to
interfere with a way. Other cases come nearer still. The sphere
of prescription and custom in imposing active duties is large in
early law. Sometimes the duty is incident to the ownership of
certain land; sometimes the right is, and sometimes both are, as
in the case of an easement. When the service was for the benefit
of other land, the fact that the burden, in popular language,
fell upon one parcel, was of itself a reason for the benefit
attaching to the other.
Instances of different kinds are these. A parson might be bound
by custom to keep a bull and a boar for the use of his parish.
/1/ A right could be attached to a manor by prescription to have
a convent sing in the manor chapel. /2/ A right might be gained
by like means to have certain land fenced by the owner of the
neighboring lot. /3/ Now, it may readily be conceded that even
rights like the last two, when attached to land, were looked at
as property, and were spoken of as the subject of grant. /4/ It
may be conceded that, in many cases where the statement sounds
strange to modern ears, the obligation was regarded as failing on
the land alone, and not on the person of the [393] tenant. And it
may be conjectured that this view arose naturally and reasonably
from there having been originally no remedy to compel performance
of such services, except a distress executed on the servient
land. /1/ But any conjectured distinction between obligations for
which the primitive remedy was distress alone, and others, if it
ever existed, must soon have faded from view; and the line
between those rights which can be deemed rights of property, and
those which are mere contracts, is hard to see, after the last
examples. A covenant to repair is commonly supposed to be a pure
matter of contract. What is the difference between a duty to
repair, and a duty to fence? The difficulty remains almost as
great as ever of finding the dividing line between the competing
principles of transfer,-- succession on the one side, and
possession of dominant land on the other. If a right in the
nature of an easement could be attached to land by prescription,
it could equally be attached by grant. If it went with the land
in one case, even into the hands of a disseisor, it must have
gone with it in the other. No satisfactory distinction could be
based on the mode of acquisition, /2/ nor was any attempted. As
the right was not confined to assigns, there was no need of
mentioning assigns. /3/ In modern times, at least, if not in
early law, such rights can be created by covenant as well [394]
as by grant. /1/ And, on the other hand, it is ancient law that
an action of covenant may be maintained upon an instrument of
grant. /2/ The result of all this was that not only a right
created by covenant, but the action of covenant itself, might in
such cases go to assigns, although not mentioned, at a time when
such mention was essential to give them the benefit of a
warranty. Logically, these premises led one step farther, and not
only assigns not named, but disseisors, should have been allowed
to maintain their action on the contract, as they had the right
arising out of it. Indeed, if the plaintiff had a right which
when obtained by grant would have entitled him to covenant, it
was open to argument that he should be allowed the same action
when he had the right by prescription, although, as has been seen
in the case of rent, it did not follow in practice from a man's
having a right that he had the contractual remedies for it. /3/
Covenant required a specialty, but prescription was said to be a
sufficiently good specialty. /4/ Where, then, was the line to be
drawn between covenants that devolved only to successors, and
those that went with the land?
The difficulty becomes more striking upon further examination of
the early law. For side by side with the personal warranty which
has been discussed hitherto, there was another warranty which has
not yet been mentioned [395] by which particular land alone was
bound. /1/ The personal warranty bound only the warrantor and his
heirs. As was said in a case of the time of Edward I., "no one
can bind assigns to warranty, since warranty always extends to
heirs who claim by succession and not by assignment." /2/ But
when particular land was bound, the warranty went with it, even
into the hands of the King, because, as Bracton says, the thing
goes with its burden to every one. /3/ Fleta writes that every
possessor will be held. /4/ There cannot be a doubt that a
disseisor would have been bound equally with one whose possession
was lawful.
We are now ready for a case /5/ decided under Edward III., which
has been discussed from the time of Fitzherbert and Coke down to
Lord St. Leonards and Mr. Rawle, which is still law, and is said
to remain still unexplained. /6/ It shows the judges hesitating
between the two conceptions to which this Lecture has been
devoted. If they are understood, I think the explanation will be
clear.
Pakenham brought covenant as heir of the covenantee against a
prior, for breach of a covenant made by the defendant's
predecessor with the plaintiff's great-grandfather, that the
prior and convent should sing every week in a chapel in his
manor, for him and his servants. The defendant first pleaded that
the plaintiff and his servants were not dwelling within the
manor; but, not daring to [396] rest his case on that, he pleaded
that the plaintiff was not heir, but that his elder brother was.
The plaintiff replied that he was tenant of the manor, and that
his great-grandfather enfeoffed a stranger, who enfeoffed the
plaintiff and his wife; and that thus the plaintiff was tenant of
the manor by purchase, and privy to the ancestor; and also that
the services had been rendered for a time whereof the memory was
not.
It is evident from these pleadings that assigns were not
mentioned in the covenant, and so it has always been taken. /1/
It also appears that the plaintiff was trying to stand on two
grounds; first, privity, as descendant and assign of the
covenantee; second, that the service was attached to the manor by
covenant or by prescription, and that he could maintain covenant
as tenant of the manor, from whichever source the duty arose.
Finchden, J. puts the case of parceners making partition, and one
covenanting with the other to acquit of suit. A purchaser has the
advantage of the covenant. Belknap, for the defendants, agrees,
but distinguishes. In that case the acquittance falls on the
land, and not on the person. /2/ (That is to say, such
obligations follow the analogy of easements, and, as the burden
falls on the quasi servient estate, the benefit goes with the
dominant land to assigns, whether mentioned or not, and they are
not considered from the point of view of contract at all.
Warranty, on the other hand, is a contract pure and simple, and
lies in the blood,--falls on the person, not on the land. /3/)
Finchden: a fortiori in this case; for there the action [397] was
maintained because the plaintiff was tenant of the land from
which the suit was due, and here he is tenant of the manor where
the chapel is.
Wichingham, J.: If the king grants warren to another who is
tenant of the manor, he shall have warren, &c.; but the warren
will not pass by the grant [of the manor], because the warren is
not appendant to the manor. No more does it seem the services 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.
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 cases--such as
warranties, and probably covenants for title--where, 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, /1/ 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 seen that at
least one well-established easement, that of fencing, cannot be
considered as a right granted out of the servient land with any
more propriety than a hundred other services which would be only
matter of contract if the law allowed them to be annexed to land
in like manner. The duty to repair exists only by way of
covenant, yet the reasoning of the leading cases is drawn from
the law of easement. On the other hand, a covenant by a lessee to
build a wall upon the leased premises was held, in Spencer's
Case, not to bind assigns unless mentioned; /4/ but Lord Coke
says that it would have bound them if it had purported to. The
analogy of warranty makes its appearance, and throws a doubt on
the fundamental principle of the case. We can only say that the
application [407] of the law is limited by custom, and by the
rule that new and unusual burdens cannot be imposed on land.
The general object of this Lecture is to discover the theory on
which a man is allowed to enjoy a special right when the facts
out of which the right arises are not true of him. The transfer
of easements presented itself as one case to be explained, and
that has now been analyzed, and its influence on the law has been
traced. But the principle of such transfers is clearly anomalous,
and does not affect the general doctrine of the law. The general
doctrine is that which has been seen exemplified in prescription,
warranty, and such covenants as followed the analogy mentioned
Another illustration which has not yet been is to be found in the
law of uses.
In old times a use was a chose in action,--that is, was
considered very nearly from the point of view of contract, and it
had a similar history to that which has been traced in other
cases. At first it was doubted whether proof of such a secret
trust ought to be allowed, even as against the heir. /1/ It was
allowed, however, in the end, /2/ and then the principle of
succession was extended to the assign. But it never went further.
Only those who were privies in estate with the original feoffee
to uses, were bound by the use. A disseisor was no more bound by
the confidence reposed in his disseisee, than he was entitled to
vouch his disseisee's warrantor. In the time of Henry VIII. it
was said that "where a use shall be, it is requisite that there
be two things, sc. confidence, and privity: ... as I say, if
there be not privity or confidence, [408] then there can be no
use: and hence if the feoffees make a feoffment to one who has
notice of the use, now the law will adjudge him seised to the
first use, since there is sufficient privity between the first
feoffor and him, for if he [i.e. the first feoflor] had warranted
he [the last feoffee] should vouch as assign, which proves
privity; and he is in in the per by the feoffees; but where one
comes into the land in the post, as the lord by escheat or the
disseisor, then the use is altered and changed, because privity
is wanting." /1/
To this day it is said that a trust is annexed in privity to the
person and to the estate /2/ (which means to the persona). It is
not regarded as issuing out of the land like a rent, so that
while a rent binds every one who has the land, no matter how, a
disseisor is not bound by the trust. /3/ The case of the lord
taking by escheat has been doubted, /4/ and it will be remembered
that there is a difference between Bracton and later authors as
to whether he comes in as quasi heres or as a stranger.
Then as to the benefit of the use. We are told that the right to
sue the subpoena descended indeed to the heir, on the ground of
heres eadem persona cum antecessore, but that it was not assets.
/5/ The cestui que use was given power to sell by an early
statute. /6/ But with regard to trusts, Lord Coke tells us that
in the reign of Queen Elizabeth [409] all the judges in England
held that a trust could not be assigned, "because it was a matter
in privity between them, and was in the nature of a chose in
action." /1/ Uses and trusts were both devisable, however, from
an early day, /2/ and now trusts are as alienable as any form of
property.
The history of early law everywhere shows that the difficulty of
transferring a mere right was greatly felt when the situation of
fact from which it sprung could not also be transferred. Analysis
shows that the difficulty is real. The fiction which made such a
transfer conceivable has now been explained, and its history has
been followed until it has been seen to become a general mode of
thought. It is now a matter of course that the buyer stands in
the shoes of the seller, or, in the language of an old law-book,
/3/ that "the assign is in a manner quasi successor to his
assignor." Whatever peculiarities of our law rest on that
assumption may now be understood.