in some of the cases the point in dispute was not the liability of the defendant, but the right of the plaintiff to sue upon the covenant. As thus stated, the rule has been adopted and applied very generally. Among the leading cases in

this country are:

Allen v. Culver, 3 Denio, 284; Dolph v. White, 12 N. Y. 296;

Hurd v. Curtis, 19 Pick. 459; Taylor v. Owen, 2 Black's R. 301; and Ingersoll v. Sergeant, 1 Wharton, 337.

It should be borne in mind that the first if not the chief point to be determined, is not how and when the covenantor becomes liable, but how and when his covenant becomes equally binding on others. It is easy to understand that the covenantor is liable upon such contracts as upon all others, by force of that rule of the law which binds a man to do as he has agreed. As it is generally expressed in the books, he is liable by reason of privity of contract. But persons other than the covenantor cannot be made liable without applying another and a different rule. That there is a rule of law which, when applicable, makes third persons personally liable, is undeniable. That such rule does not apply to every instrument containing covenants, nor to all the covenants indiscriminately in any instrument, is equally certain.

So far, there is no debatable ground. The ground of debate and litigation has been chiefly, if not entirely, limited to the determination of the point when that rule of law is applicable. It is usually said, that it applies where there is a privity of estate between the parties; that is, where the party claiming the benefit of the covenant is in privity of estate with the party against whom he makes the claim; and that it applies nowhere else. The doctrine thus stated is as well settled as anything can be by authority, as will appear before the close of this chapter. Indeed it may be truly said, that it has never been seriously questioned, either in adjudicated cases, or by elementary writers, in this country or in England.

To master the subject, therefore, we have only to understand what is meant by privity of estate, how it is made up,

and who are parties to such a relation. In arriving at such a result, there are many things to be understood and borne in mind. We must know what is meant by individual property in lands, how such property is acquired, and how held; that individuals do not own lands as they own personal property; that they have no such thing as absolute ownership of lands; that the absolute and ultimate right of property in and to all the lands within the territory of the State, is in the State, and always remains there; that it never passes from the State, and cannot be made to pass, to an individual, either by lapse of time, or by any instrument of conveyance.

The People v. Trinity Church, 22 N. Y. 47; 4 Kent Com. 424; 2 Bl. Com. 51; The People v. Conklin, 2 Hill, 74; Sims v. Humphrey, 4 Denio, 187, 188; Englishbe v. Helmuth, 3 N Y. 294; DePeyster v. Michael, 6 N. Y. 467; St. John v. West, 4 How. Pr. R. 329-333.

It must be remembered that individual rights in land rest upon a contract, and continue to exist only so long as is provided by the terms of the contract. This is a familiar idea in regard to estates for life and terms for years. As to estates in fee, we call the tenant the landowner, although it is equally true that he has nothing but a contract right of possession. When the right of possession is fixed, as it is in all estates in fee, to continue until such time as the tenant shall die intestate, and without heirs who have, by the laws of the State, capacity to hold a fee, it is an estate in fee; and is regarded as the highest estate known to our laws. But it is as true of such an estate, as of one limited for life or years, that it is nothing more than a contract right of possession. The reason or cause which has led, in this country, both lawyers and laymen to regard a tenant in fee the landowner, is, because his tenure is allodial, instead of feudal. It is true, that an individual may show that he has a title in fee by proving occupancy under claim of such title for twenty years. But this mode of establishing title is only a mode of evidence, and operates by being taken as sufficient proof of a grant by the State.

It must also be borne in mind that the grant of an estate

in fee is a contract within the provisions of the constitution of the United States, which prohibits a State from passing any law impairing the obligation of contracts;

Fletcher v. Peck, 6 Cranch, 87, 136; New Jersey v. Wilson, 7 id. 164; The People v. Platt, 17 John. 195; Atwater v. Woodbury, 6 Conn. 223, 230; Osborne v. Humphrey, 7 Conn. 341; Story on the Constitution, § 1376.

and is, therefore, a contract to all intents and purposes. An examination of these authorities will be entirely convincing that the owner of an estate in fee, like the owner of an estate for life, or of a term for years, has only a contract right of possession of the lands he claims, differing not at all in that respect from a lease for life or years, and only differing in the time to which the right of possession is limited by the terms of the contract. All these contracts are subjected to the same rules of construction in regard to the subject of covenants running with the land as a burden, except so far as the statutes have expressly otherwise provided.

SECOND: To what class of contracts the rule applies :

The rule of the common law, which makes the covenant of one person personally binding on another, not being applica ble to all contracts touching or concerning lands, the first point which presents itself, in the examination of the subject, is to determine to what contracts the rule is applicable. There are contracts executory and contracts executed; and contracts executed are divided into contracts of lease or demise, and contracts of assignment. All the contracts concerning lands belong to one of those three general classes; and the question is, to which of the three, as thus classified, does this rule of the feudal law apply, or does it apply to them all alike?

1. It applies to all contracts of lease or demise, except where the common law has been changed by statute. The rule in Spencer's case names that class of contracts as within the rule, and names no others. The assignee of the lessee is in privity of estate with the owner of the reversion, and is said to be liable by reason of that privity. He is not liable by the same rule of law which binds him to fulfill his own

agreements. He is not in privity of contract, for he was not a party to the making of the contract. It is not difficult to understand the relation called privity of estate, as constituted in such case. Sugden, in his work on Vendors, 713, 714, explains the phrase as follows: "There are three manner of privities, viz: 1. Privity in case of estate only. 2. Privity in respect of contract only. 3. Privity in respect of estate and contract together. The first, viz., privity of estate only, as between the grantee of the lessor's reversion and the lessee, or between the lessor and the assignee of the lessee, for no contract was made between them. The second, viz., privity in respect of contract only, which is personal privity, and extends only to the person of the lessor and the person of the lessee, as between the lessor and the lessee, after the latter has assigned over, for the privity of contract remains, although the privity of estate is destroyed; and yet this is between the lessor and lessee only, for in the very case, viz., an assignment by the lessee, there is no privity of contract between the lessor and the assignee, but there is a privity of estate between them. Third, viz., privity in respect of contract and estate together, as between the lessor and the lessee himself."

From the author's own exposition, it is obvious that there are only two kinds of privity, namely, privity of contract and privity of estate. His third privity is constituted by the joining of both between the same parties. It is clear, also, that the one, namely, privity of contract, is not assignable, but remains between the lessor and the lessee after the privity of estate is transferred to exist between other parties. In stating that the privity of contract remains, the author evidently meant only that the lessee would remain liable upon his personal covenant after he had assigned the estate.

In Walton v. Cronly, 14 Wen. 64, it was said by Sutherland, J., in delivering the opinion of the court, that "a lessee continues always liable upon the covenants contained in the lease, by virtue of the privity of contract, notwithstanding any assignment which he may make. His liability, in respect

to covenants which run with the land, rests both upon the privity of contract and of estate. Of the first, he cannot divest himself by assignment. Covenant for rent, therefore, may always be maintained against the lessee or his representatives, although he may have accepted rent of the assignee." In Auriol v. Mills, 4 Term R. 98, Lord Kenyon, Ch. J., said: "It is extremely clear that a person who enters into an express covenant in a lease continues liable on his covenant, notwithstanding the lease be assigned over." But this rule extends only to cases where there are express covenants. The same rule was adopted in

Post v. Jackson, 17 John. 239; and in Bachelor v. Gage, Cro. Car. 188.

Another elementary writer defines privity of estate as “the result of tenure. It subsists by the virtue of the relation of landlord and tenant."

2 Platt on Leases, 851.

It is not with the liability of the lessee we are now dealing, but with the liability of the assignce; and we have seen that the obligations of the latter rest upon the relation called the privity of estate. It is evident that that is a contract relation as strictly as a privity of contract. The parties thus related are connected by the contract, so far as the land is concerned, in the same manner as the parties who made the contract. Take for example the tenant in fee of the State, holding by an immediate grant from the State. The grant, as a contract of the State, secures to him a continuing right of possession. He is the party of the second part to the contract, and the State is the party of the first part. Between the parties there is a double relation, the one called the privity of contract, and the other the privity of estate. When this tenant in fee assigns all his estate to another, he transfers the privity of estate, but does not transfer the privity of contract. His liability, so far as it rested upon the privity of estate, is transferred to his assignce, but his liability resting on the privity of contract remains. His assignee becomes the tenant in fee of the State in his place, and is secured in his rights by