Joint and several Covenants. Slingsby's the lessee should enjoy the house during the term, without eviction by the lessor, or any claiming under him. The lessee was evicted by a person who did not claim under the lessor. It was held by Popham, Ch. Just., and all the other Judges, that the express covenant qualified the generality of the covenant in law, and restrained it by the mutual consent of both parties, that it should not extend further than the express covenant. 18. Where several persons enter into a covenant, they may either bind themselves altogether, or else they may only bind each of themselves severally: from which arises a distinction between joint and several covenants. A covenant of this kind may also be both joint and several. 19. Where a person covenants with two or more, and with each of them; if each of the covenantees takes a several interest or estate, the covenant is several; but if the covenantees take a joint interest in the subject matter of the covenant, it is a joint covenant. As if a man by an indenture demises to A. Black Acre, to B. White Acre, and to C. Green Acre, and covenants with them and every of them, that he is lawful owner of all the said acres; in that case, as the interests are several and distinct, the words, 66 every of them," will make the covenant several. But if the three acres had been demised to them jointly, then the words, every of them, would have been void. For a man by his covenant (unless in respect of several interests), cannot make it first joint, and then several, by means of the words, every of them. Because, although several persons may bind themselves, and every of them, and so the obligation shall be joint or several, at the election of the obligee; yet a man cannot bind himself to three and to each Eccleston v. Clipsham, of them, to make it joint or several at the election of several persons, for one and the same. cause: for the Court would be in doubt for which of them to give judgement; also the covenantor would be 1 Saund. 153. several times charged with one and the same thing: and therefore the words, and every of them, are in Willes, 248. such case of no effect, and do not sever the joint cause of action. 20. If two lessees covenant jointly and severally at the beginning of a lease, these words will extend to all their subsequent covenants; notwithstanding the intervention of covenants on the part of the lessor. Johnson v. Wilson, berland v. 522. 21. In a lease of coal mines, made by the Duke of Northum Northumberland to G. Errington and John Ward, Errington, there was a string of covenants introduced by these 5 Term Rep. words: "And the said G. Errington and J. Ward for themselves jointly and severally, and for their several and respective heirs, &c.," and then came a proviso in these words: " and it was thereby declared by and between the said parties, and the said Duke did thereby covenant, that it should be lawful for the lessees to sell a certain quantity of a particular sort of coals, they the said G. Errington and J. Ward paying and accounting to the Duke for the same."An action was brought by the Duke against the ex ecutors of G. Errington, upon these words; and the question was, whether they amounted to a several covenant. It was determined, that the general words at the beginning of the covenants by the lessees, "jointly and severally, in manner following," ex- Anderson tended to all their subsequent covenants, which were 1 East, 497. therefore all joint and several. v. Martin, 22. Covenants are divided into real and personal. Of Covenants Covenants real are those which have for their object Real. Jenk. 241. 1 Inst. 384 b. something annexed to, or inherent in, or connected with land, or other real property. Thus, where three coparceners purchased lands in fee, and covenanted that the survivors should convey to the heirs of such as should die first: this was resolved to be a covenant real. 5 Rep. 16. Holmes v. 23. It was held in Spencer's case, that when a covenant extends to a thing in esse, parcel of the demise; the thing to be done by force of the covenant is quodammodo annexed and appurtenant to the thing demised. But when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hath no being. But if a lessee covenants to repair the houses demised to him, during the term, that is parcel of the contract, and extends to the support of the thing demised, and therefore is quodam modo annexed to the houses. 24. A. granted a watercourse to B. and his heirs, 1 Ab. Eq. 27. through Black Acre and White Acre; and covenanted for himself, his heirs and assigns, to cleanse the same; and that fines and recoveries levied, &c. of the said grounds should be and enure to confirm, &c. Afterwards a recovery was had, and a deed executed, declaring the uses as aforesaid. The Court held, that this was a covenant real, and made good by the recovery. Brewster v. Kitchin, 1 Ld. Raym. 317. 12 Mod. 171. 25. A. tenant in fee simple granted a rent-charge out of lands, and covenanted for himself and his heirs to pay it without deduction. Lord Raymond Ballyv Wills, held, that this was a personal covenant; but the other three Judges held, that this was a covenant real, being in the nature of a grant; or at least a declaration going along with the grant, showing in what manner the thing granted should be taken. 3. Wils. R. Tatem v. 2 H. Black. 26. The essential distinction between a real and Extend to all a personal covenant is, that a real covenant runs with claiming under the the land, and descends to the heir; and is also trans- Grantee. ferred to a purchaser. Therefore, where a covenant real is entered into by a grantee or lessee, it will bind, not only such grantee or lessee, but also his assignee; and the grantor or lessor, or their heirs, Spencer's may at any time bring an action on such covenant. 27. Thus, where in a lease for years the lessee covenanted with the lessor, his executors, and administrators, to repair, and leave in repair at the end of the term; in an action of covenant brought by the heir, it was objected that it lay not for him : but it was answered, that it was a covenant running with the land, and should go to the heir, though not named and it appeared that it was intended to continue after the death of the lessor, his executor being named. Case, ante, § 23. Lougher v. Williams, 2 Lev. 92. v. Roberts, 2 Wils. 143. 28. But where the lessor was only tenant for life, Brudnek it was held, that his heir was not entitled to the benefit of covenants made with the lessor; because the lease determined by his death. 29. As assignees of grantees or lessees are bound 1 Inst. 384 by all covenants real, annexed to the estate granted or leased, and which run with the land; so are they entitled to the benefit of all such covenants as are entered into by the grantors or lessors; and may maintain an action on them. 30. Thus, in Spencer's case it was resolved, that 5 Rep. 17 if a person made a lease for years, by the words grant or demise, which create a covenant for quiet enjoyment; and the assignee of the lessee was evicted, he should have a writ of covenant. For it was but reasonable that he should have such benefit of the demise, as the original lessee might have had; and Vide Tit. 13. c. 2. § 53. ante, § 24. the lessor had no other prejudice than that to which his special contract with the original lessee bound him. 31. By the statute 32 Hen, VIII. c. 34, § 2. it is enacted, that all feoffees and grantees of any lordships or hereditaments, for years, life, or lives, shall have the like action and remedy against all persons having reversions of such lordships or hereditaments, for any covenants contained in their leases, as they might have had against the lessors or grantors, their heirs or successors. 32. A court of equity will give its assistance to an assignee, against all persons claiming under the grantor of an estate; to procure for him the benefit of the covenants contained in the original grant, which run with the thing granted, 33. Thus, in the case of Holmes v. Buckley, the watercourse by mesne assignments came to the plain, tiff; and Black Acre and White Acre to the defendant who built on the same, and much heightened the ground that lay over the watercourse, by which it became more chargeable and inconvenient to repair; and, as it was alleged, and in part proved, the building had much obstructed the watercourse. So the bill was for establishing the enjoyment of the water, course; and that the defendant, and all claiming under him, might from time to time cleanse the same, according to the covenant. It was objected, that the covenant being personal, was not at all strength. ened by the recovery; and that the plaintiff, and all those under whom he claimed, being sensible of it, had for forty years cleansed the same at their own charge. The Court was of opinion, that this being a covenant which ran with the land, was made good by the recovery; and though the plaintiff had cleansed |