the same contract of the State, and is, therefore, said to be in privity of estate. When this second tenant assigns, he transfers the privity of estate, and ceases to be liable upon the contract, because he ceases to have connection with the contract. He had but one relation, the privity of estate, and has parted with that, and thus become a stranger to the transaction. Such would be the result under the operation of the feudal or common law.

If this tenant in fee makes a lease for years, he creates another right or estate. His lessee takes the right of possession under the new contract of lease. The lessor still remains the party of the second part to the grant of the State. So far as concerns his relation to the State, his position remains unchanged by his lease for years. But by reason of his thereby parting with the immediate right of possession, his right under the contract of the State is called the reversion; that is, it is a right to the lands whereby he can resume the possession at the termination of his lease for years. This lease for years creates an additional privity of contract and an additional privity of estate. When the lessee for years assigns his tenancy, his assignee holds the possession under the contract of lease for years, and is thus said to be in privity of estate with the lessor, who is the tenant of the State. If the lessor assigns his estate in fee, he is said to assign his reversion, and his assignee becomes the party to the relation of privity of estate with the assignee for the term for years. The tenant for years in such case holds possession under the contract of lease, of which the grantee of the reversion has become the party of the first part by becoming the assignee and party of the second part of the grant in fee of the State. If rents are reserved, they belong to the owner of the reversion, and the assignee of the term is liable to pay them. There is a contract existing between the parties, which, although made by others, has come to the parties by assignment. Under that contract, the one party holds of the other the right of possession to the lands, and, therefore, is liable thereupon to fulfill all the stipulations or covenants contained

therein, touching or concerning the premises. Such covenants are said to run with the land as a burden, and such is the manner of their running. The relation thus formed between the parties is called privity of estate, and constitutes the relation of landlord and tenant. Such is the conventional mode of constituting that relation, and there is no other.

1 Platt on Leases, 9 to 18; Preston on Conveyancing, 124; Taylor's Lan. and Ten. § 16; Hope v. Booth, 1 B. & Adol. 4; 20 E. C. L. 574; Parmenter v. Webber, 8 Taunt. 593; Sackett v. Barnum, 22 Wend. 605; Sims v. Humphrey, 4 Denio, 188; Everston v. Sutton, 5 Wen. 284; The People v. Simpson, 28 N. Y. 55.

There is no doubt that the rule of law which makes covenants run with the land as a burden, applies to all leases of lands, where the common law system obtains, except where the statute has provided against such application. So far, there seems to be a uniform concurrence of all the authorities.

2. It should, however, be borne in mind, that the covenant, in such case, only binds the assignee, and does not reach persons in possession as under-tenants, or those who have acquired an interest in any way, except by assignment. The under-lessee or under-tenant holds under another contract, and is not, therefore, in privity of estate under the first lease. It has been a doctrine, settled ever since the decision of Holford v. Hatch, Dougl. R. 183, that a landlord cannot maintain an action of covenant for rent against an undertenant.

Upon the same principle, it was held, in Quackenbush v. Clarke, 12 Wen. 555, that the defendant was not liable upon a lease for years, because no assignment had been made to him, although he was in possession, and had purchased the rights of the lessee, had received from him the lease, and had declared himself owner of the premises. The court remarked, that "as the liability of the assignee rests upon his estate, it is clear that, when it is shown that no estate is vested in the defendant, it follows that he is not liable as assignee."

These cases also serve to illustrate what is meant by the

term privity of estate. The person, to be liable as assignee, must hold the land under the lease containing the covenant; that is, he must have become the party of the second part thereto, by means of the assignment. A right or interest acquired in any other manner will not make him liable.

There is an elementary rule that "where a man, upon gift or lease, will reserve to him a rent service, it behooveth that the reversion of the lands and tenements be in the donor or lessor. For if a man will make a feoffment in fee, or will give lands in tail, the remainder over in fee simple, without deed, reserving to him a certain rent, this reservation is void, for that no reversion remains in the donor, and such tenant holds his land immediately of the lord, of whom his donor held."

Litt. sec. 215; Co. Litt. 142 b

This shows, also, that it is indispensable that a covenant, in order to run with an estate as a burden, must be incident as a benefit to the immediate reversion of that estate. At least the covenantee must have been the owner of the reversion when the covenant was made. It is a familiar rule that rent is incident to the reversion, and it is equally true of all covenants in a lease concerning the premises. The lessor must be the covenantee, or the covenant will not attach to the estate to bind the assignee. If the covenant be made to pay to, or do for, another, it may be good as a personal contract, but will not bind the assignee.

Dolph v. White, 12 N. Y. 296.

The principle of that distinction is obvious. No one but the lessor can be the reversioner, for the reversion is the right left in the lessor after he has made a lease; and no one but the lessor and his grantees of the reversion can be brought within the relation called privity of estate. Consequently, unless the covenant was made to the lessor, it could not be connected with the privity of estate; that is, it would not be incident to the contract under which the land was held by the tenant, and would be no part of that contract.

It has never been questioned, at common law, that the rule

which makes covenants run with the land as a burden, applies to a contract of lease. A general retrospect as to the rule itself, and its origin, points directly to that conclusion. It is one of the distinguishing features of feudalism, beginning with the feudal system, and ending wherever that system ends.

It needs no argument to show that a covenant which runs with the land as a burden rests upon a rule of law which makes the lessee's agreement binding on his assignee, and upon any person who may succeed to his estate in the land. It is said to run as a burden because it is made by law to bind all who may succeed to the estate. The same thing may be as well expressed by saying that the law makes the agreement of the lessee a personal servitude, and attaches it as such to the land. It is precisely that rule which constitutes the essence of feudalism, and the personal servitude which belongs to it. And feudalism, like slavery, is a political institution, designed to divide the people into two general classes, the laboring and the non-laboring, and to put the former in subjection to the latter; and, having arranged the division and subjection for one generation, to establish the line between the classes, so that it shall continue unchanged through successive generations. Slavery divided the people by making one class own the other, and maintained the line from one generation to another, by allotting to the child the status of the mother. Feudalism made the division by assigning to the one class the ownership of the land, and to the other the right to work it under contract of rents or services to the owner, and maintained the line between the classes by making the children of each class inherit the position of their ancestors. The child of the slave mother was born to the subjection due from the mother. The child of the feudal tenant inherited the right of possession of the father, and along with that right the servitude attached thereto. The law made him liable to fulfill the agreement of the lessee, without the right on his part to exercise any volition in regard to it. It was not only a personal servitude, but a personal servitude of an involuntary character. It was as involuntary in its character as the

personal servitude which rested upon the ownership of one person by another. The law imposed the servitude in either case without consulting the person to serve. The child born to an inheritance of an estate in land, and along with it, to the obligations to serve, was afforded no more choice in the matter than the child born to slavery, because his mother was a slave. And where the lands of a country were generally burdened with such obligations, the laboring classes were as much excluded from the exercise of volition in regard to the obligations which the law imposed upon them, as the slave was in his subjection to his master. Neither knowledge of the existence of the obligation, nor assent to its operation, is required to be alleged or proved in order to make out the liability. It is only necessary to show the plaintiff to be the owner of the reversion which was left in the lessor when the lease was made, and the defendant to be the assignee of the estate which the lessee took by the lease; and the law imposes the liability upon the assignee to fulfill the covenants of the lessee contained in the lease.

It has been decided in Damainville v. Mann, 32 N. Y. 197, that to make the assignee of the lessee liable for rent, on the ground of privity of estate only, such assignee must be in possession of the demised premises. But that doctrine cannot be supported upon principle or authority. If a party has become the legal owner of the estate by the assignment, he has become the party of the second part to the lease which created it. There is no rule which requires actual possession to make him the assignee. The court, in this case, professedly had very imperfect ideas as to what constituted privity of estate, and finally concluded that actual possession was a necessary element in that relation. It is readily perceivable what led them into that error. They confounded the assignee of a lessee with a mortgagee; and because they found that in Eaton v. Jaques, Douglass, 455, it had been held that if a term is assigned by way of mortgage, with a clause of redemption, the lessor cannot sue the mortagee as assignee of all the estate of the mortgagor, even after the