runs with the land, every perfon, who takes under the original lease, is liable to it. To this purpose the defendant, although he had not strictly taken the whole of the leffee's intereft, in point of duration, was to be confidered as his affignee. A devifee, an executor, an affignee under the bankrupt laws, or one who purchases a term from the fheriff under an execution, are affignees in law to the effect of being liable to covenants for rent, &c.; although the transfer to them does not amount to a forfeiture under a covenant not to affign. The landlord is entitled to look for the rent to the perfon in poffeffion, and ought not to be driven to the neceffity of finding out the original leffee, and bringing his action against him.

On the other fide it was infifted, that there was not a better known diftinction in the law, than that between an affignee and an undertenant. Only affignees of the whole term, whether by actual affignment, or by devise, fale under an execution, &c. are liable to the covenants for rent, &c.: for, if there is a reverfion of a day by the immediate leffee, there is no privity between the undertenant and the first leffor.

Lord Mansfield.-This is an action of covenant by a leffor against an under-leffee; and the fingle queftion is, whether the action can be maintained against him, as being fubftantially an affignee. For some time we have had great doubts; we have bestowed a great deal of confideration on the fubject, and looked carefully into the books: and it is clearly fettled, (and is agreeable to the text of Littleton,) that the action

cannot be maintained, unless against an affignee of the whole term.

$25. It has been ftated in a former title, that, upon the diffolution of the monafteries by Hen. 8., most of their eftates were granted to private perfons ; who could not take advantage of the conditions contained in the leafes that had been formerly made of thofe eftates, which produced the ftatute 32 Hen. 8. c. 34. This act extends to covenants as well as to conditions; it being thereby enacted that the affignees of reverfions fhall have fuch like and the fame advan. tage, & by action only, for not performing the covenants contained in the faid leafes, as the leffors or grantors themselves, or their heirs or fucceffors, might have had.

$26. It was refolved in 25 Eliz., that this act extends only to covenants, which touch or concern the thing demifed, and not to collateral covenants and, therefore, the intent of the ftatute was not to transfer any privity of contract, but to annex the covenants, touching or concerning the land demised, to the reverfion; so that they might pass as annexed and incident to the reverfion.

§ 27. In a modern cafe it was refolved by the Court of King's Bench, that, if a mortgagor and mortgagee make a lease, in which the covenants for the rent and repairs are only with the mortgagor and his affigns, the affignee of the mortgagor cannot maintain an action for the breach of these covenants; because they

are

§ 27

are collateral to his grantor's intereft in the land, and
therefore do not run with it, And Mr. Serjeant
Shepherd, in arguing this cafe, ftated that there were
three relations at common law, which might exist
between the leffor and leffee, and their respective
affignees. First, privity of contract; which is created
by the contract itself, and fubfifts for ever between
the leffor and leffee. Secondly, privity of eftate;
which fubfifts between the leffee, or his affignee in
poffeffion of the estate, and the affignee of the rever
fioner. And, thirdly, privity of contract and estate;
which exifts, where both the term and reversion
remain in the original covenantors,
original covenantors. The ftatute
32 Hen. 8. feems to have created a fourth relation; a
privity of contract in refpect of the eftate, as between
the affignees of the reverfion, and the leffees or their
affignees. The ftatute annexes, or rather creates, a
privity of contract between those, who have privity
of eftate; and, when the one fails, the other fails
with it.

It was alfo refolved in this cafe, that, if a tenant for a term of years lease for a lefs term, and affign his reverfion, and the affignee take a conveyance of the fee, by which his former reverfionary interest is merged; the covenants incident to that reverfionary interest are thereby extinguished,

S 28. Lord Coke obferves, that an affignee of part 1 Inft. 2154 of the estate of the reverfion may take advantage of a condition, and confequently of a covenant: as, where a reverfion in fee is granted for life, the grantee

fhall

1 Inft. 215 b.

And all claim

ing under the Grantor.

But a grantee

fhall have the benefit of the covenants.

of part of the reverfion fhall not take advantage of a covenant; and therefore, if a reverfion confifts of three acres, and two of the acres are granted, the covenants are destroyed.

§ 29. His lordship also observes, that, if the reverfion is conveyed by means of the statute of uses, the perfon to whom it is thus conveyed is a fufficient affignee within the statute; because he comes in by the act and limitation of the party, although he is in in the post. But such, as come in by act in law, as the lord by efcheat, fhall not derive any benefit from the statute.

S 30. As affignees of grantees or leffees are bound by all covenants real, annexed to the estate granted Init. 384 a. or leased, and which run with the land; so are they entitled to the benefit of all fuch covenants as are entered into by the grantors or leffors, and may maintain an action on them,

5 Rep. 17 a.

$ 31. Thus, in Spencer's cafe it was refolved, that, if a perfon made a leafe for years by the words, "grant" or "demife," which imply a covenant for quiet enjoyment, and the affignee of the leffee was evicted, he should have a writ of covenant. For it was but reasonable he fhould have fuch benefit of the demife, as the original leffee might have had: and the leffor had no other prejudice than that to which his special contract with the original leffee bound him.

§ 32. A court of equity will give its affiftance to an affignee againft all perfons claiming under the grantor of an estate, to procure him the benefit of the covenants contained in the grant, which run with the thing granted.

§ 33. A. and K. his wife, being feised in right of Holmes v. Buckley, the said K. of two pieces of ground, by indenture 1 Ab. Eq. 27. 25 January 1622, granted a watercourse to one J. H. and his heirs, through the said two pieces of ground; and by the deed did covenant for them, their heirs and affigns, from time to time to cleanse the fame; and that all fines and recoveries, levied and fuffered, or to be levied and fuffered, of the faid grounds fhould be and enure to the strengthening and confirming the faid watercourse according to the faid grant: and, afterwards, a recovery was had, and a deed executed, declaring the uses to be as aforefaid. The watercourse, by mefne affignments, came to the plaintiff, and the faid two pieces of ground to the defendant, who built on the fame, and much heightened the ground that lay over the watercourfe, and made it much more chargeable and inconvenient to repair; and, as it was alledged (and in part proved), the building had much obftructed the watercourse; so the bill was for establishing the enjoyment of the watercourfe, and that the defendant, and all claiming under him, might from time to time cleanse the fame, according to the covenant. It was objected, that the covenant, being perfonal, was not at all strengthened by the recovery; and that the plaintiff and thofe under whom he claimed, being fenfible of