Real Covenant

A covenant connected with a conveyance of realty, whereby an obligation to pass something real is created, or which is so connected with the realty that he who has the latter is entitled to the benefit of, or is bound to perform, the former. Fitzh. Nat. Brev. 145; Shep. Touch. 161; Piatt, Gov. 60, 62. A covenant which is so connected with the realty as to apply to the owner thereof, either In reference to benefit or obligation, whether he be a party to the instrument creating the covenant or not. A covenant by which the obligor underr takes to pass something real. Co. Litt. 384b; Stearns, Real Actions, 134. See 4 Kent, Comm. 472. A covenant by which the covenantor binds his heirs. 2 Bl. Comm. 304. Very considerable confusion exists among the authorities in the use of the term "real covenants." The definition of Blackstone, which determines the character of covenants from the insertion or noninsertion of the word "heir" by the covenantor, is pretty generally rejected. See Piatt, Cov. 61; 2 Bl. Comm. 304, note, 305, note. Of the other definitions, that which makes a real covenant an obligation to pass realty is the most ancient. Upon such a covenant the remedy was by voucher or warrantia chartae, and not by the action of covenant. Together with the disuse of real actions, these covenants gave place to the more mod- "real covenants" lost its ancient signification, and acquired its modem one, as given in the latter part of the first and in the second definition. The covenant to stand seised approaches perhaps more nearly than any covenant still in use to the ancient real covenant. Covenants are real only when they have entered into the consideration for which land, or some interest therein to which the covenant is annexed, passed between the covenantor and covenantee. 2 Washb. Real Prop. 662, 663. In England, all covenants for title are' held to be real covenants; in the United States, those only which are future in their operation come under this description. 10 Ga. 311. The object of these covenants is, usually, either to preserve the inheritance, as to keep in repair (3 Lev. 92; 9 Barn. & C. 505; 8 Cow. [N. Y.] 206; 17 Wend. [N. Y.] 148; 1 Ball. [U. S.] 210; 6 Yerg. [Tenn.] 512; 6 Vt. 276; 25 Pa. St. 257; 38 Eng. Law & Eq. 462; to keep buildings insured, and reinstate them if burned (Piatt, Cov. 185; 5 Barn. & Adol. 1; 6 Gill & J. [Md.] 372); to continue the relation of landlord and tenant, as to pay rent (5 East, 575; 1 Doug. 183; 1 Wash. C. C. [U. S.] 375; do suit to the lessor's mill (5 Coke, 18; 1 Bam. 6 C. 410; grind the tenant's corn (2 Yeates [Pa.] 74; 9 Vt. 91); for the renewal of leases (12 East, 469); or to protect the tenant in his enjoyment of the premises, as to warrant and defend (Shep. Touch. 161; 2 Mass. 433; 5 Cow. [N. Y.] 137; 1 Paige, Ch. [N. Y.] 455); to make further assurance (Cro. Car. 503); for quiet enjoyment (Cro. Eliz. 373; 3 Barn. & Aid. 392; 1 C. B. 402; 1 Dev. & B. [N. C] 94; 23 Me. 383); never to claim or assert title (7 Me. 97; 3 Mete. [Mass.] 121); to remove incumbrances (17 Mass. 586); to release suit and service (Co. Litt. 384b); to produce title deeds in defense of the grantee's title (4 Greenl. Cruise, Dig. 393; 10 Law Mag. 353-357; 1 Sim. & S. 449); to supply water to the premises (4 Barn. & Aid. 266); to draw water off from a mill pond (19 Pick. [Mass.] 449); not to establish another mill on the same stream (17 Weijd. [N. Y.] 136); not to erect buildings on adjacent land (4 Paige, Ch. [N. Y.] 510); to use the land in a specified manner (13 Sim. 228); generally to create or preserve easements for the benefit of the land granted (4 E. D. Smith [N. Y.] 122; 1 Brandf. [N. Y.] 40; 2 Greenl. Ev. § 240; 2 Washb. Real Prop. 648). See "Covenant."

A covenant whereby a man binds himself to pass a real thing, as lands or tenements; as, a covenant to levy a fine, etc. Shepp. Touchst. 161; Fitzh. N. B. 14f); Co. Litt. 384 b. A covenant, the obligation of w’hich is so connected with the realty that he who has the latter is either entitled to the benefit of or liable to perform the other. 2 Bla. Com. 304, Coleridge’s note; Stearns, Real Act. 134; 4 Kent 472. A covenant by which the covenantor binds his heirs. 2 Bla. Com. 304. Those by which a single covenantor undertakes the performance of the covenant. It frequently happens that each one of several covenantors binds himself to perform singly the whole undertaking. The words commonly used for this purpose are “severally,” “each of us.” Still more commonly the undertaking is both joint and several. It is the nature of the interest, and not the form of the covenant, which determines its character in this respect; Calvert v. Bradley, 16 How. (U. S.) 580, 14 L. Ed. 1066; Capen v. Barrows, 1 Gray (Mass.) 376. Very considerable confusion exists among the authorities in the use of the term real covenants. The definition of Blaokstone which determines the character of covenants from the Insertion or noninsertion of the which makes a real covenant an obligation to pass realty is the most ancient. The second definition is that now ordinarily understood when the term “real covenant” is employed. The benefit of such covenants will always run with the land and can be enforced by any vendee, no matter how remote. The burden, however, will not run with the land so as to be capable of enforcement unless there be privity either of contract or estate between the plaintiff and the defendant; Spencer’s Case, 1 Sm. L. C. 115. These covenants are of various kinds. Some are used in lieu of the ancient warranty. Of these the most common are covenants of warranty, both general and special, covenants of seisin, that the vendor has a good right to convey, for quiet enjoyment, for freedom from incumbrances, and for further assurance. Wms. R. P. 447. In regard to all these, it may be said that in England the right of action passes to and vests in the party in whose time the substantial breach occurs, and who ultimately sustains injury: Rawle, Cov. 324. In the United States, however, the covenants for seisin, for right to convey, and against incumbrances are usually construed to be broken as soon as made and cannot enure to the advantage of subsequent grantees. Covenants of warranty and for quiet enjoyment are, however, prospective, and no breach occurs until eviction, actual or constructive; id. 313. See Covenant, and the various titles thereunder. Other real covenants now in use are as follow s: either to preserve the inheritance, as to keep in repair; 9 B. & C. 505; Norman v. Wells, 17 Wend. (N. Y.) 148; Pollard v. Sh a after, 1 Dali. (U. S.) 210, 1 L. Ed. 104; Kellogg v. Robinson, 6 Vt. 276, 27 Am. Dec. 350; 88 E. L. & E. 462; to keep buildings insured, and reinstate them if burned; 5 B. & Aid. 1; Thomas’ Adm’rs v. Vonlcapff’s Ex’rs, 6 Gill & J. (Md.) 372; to continue the relation of landlord and tenant, as to pay rent; Herbaugh v. Zentmyer, 2 llawle (Pa.) 159; Hurst v. Rodney, 1 Wash. C. C. 375, Fed. Cas. No. 6,987; to do suit to the lessor’s mill; 5 Co. 18; 1 B. & C. 410; to grind the tenant’s corn; Dunbar v. Jumper, 2 Yeates (Pa.) 74; for the renewal of leases; Moore 159; or to protect the tenant in his enjoyment of the premises, as to warrant and defend, never to claim or assert title; Fairbanks v. Williamson, 7 Greenl. (Me.) 97; Trull v. Eastman, 3 Mete. (Mass.) 121, 37 Am. Dec. 126; to release suit and service; Co. Litt. 384 b; to produce title-deeds in defence of the grantee’s title; Dig. tit. xxxii. c. 27, § 99; 1 S. & S. 449; to supply water to the premises; 4 B. & Aid. 266; to draw water off from a mill-pond; Morse v. Aldrich, 19 Pick. (Mass.) 449; not to establish another mill on the same stream; Norman v. Wells, 17 Wend. (N. Y.) 136; not to erect to use the land In a specified manner; 13 Sim. 228; generally to create or preserve easements for the benefit of the land granted; Keteltas v. Penfold, 4 E. D. Sm. (N. Y.) 122; Weyman’s Ex’rs v. Ringold, 1 Bradf. (N. Y.) 40. See 2 Oreenl. Ev. § 240; 2 Washb. R. P. 648; Spencer’s Case, 1 Sm. L. C. 115.