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r 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 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 n