A covenant affecting real property, made with a covenantee who possesses a transferable interest therein, is annexed to the estate, son v. Bloodgood, 1 Johns. Cas. 51; Anderson v. Van Alen, 12 Johns. 343.

(l) Jones v. Witter, 13 Mass. 304; Stocks v. Dobson, 19 E. L. & E. 96.

(m) Junes v. Witter, 13 Mass. 304.

(n) Goodwin v. Cunningham, 12 Mass. 193; Green v. Hatch, id. 195; Jenkins v.

Brewster, 14 id. 291; Phillips v. Bank of Lewiston, 18 Penn. St. 394; Conant v. Seneca County Bank, 1 Ohio St. 298.

(o) Ainslie v. Boynton, 2 Barb. 258; Sanborn v. Little, 3 N. H. 539.

(p) Eno v. Crooke, 10 N. Y. (6 Seld.) 60.

1 Notice is equally necessary to protect the assignee against such payment by the debtor to the assignor. Heermans v. Ellsworth, 64 N. Y. 159. - The assignee of a judgment takes it subject to equities between the original parties and to any payments by the judgment debtor before notice of the assignment. Noble v. Thompson Oil Co. 79 Penn. St. 354. - K.

and is transferable at law, passing with the interest in the realty to which it is annexed; (q) and it is often called a " covenant running with the land." If such covenants be made by the owner of land who conveys his entire interest to the covenantee, they are annexed to the estate, and the assignee of that estate may bring his action on the covenants in his own name. (r) But the assignee must take the estate which the covenantee has in the land, and no other; nor can he sue upon the covenants if he takes a different estate. (s) But it is said that the assignee cannot sue upon the covenants unless the estate passes to him; and therefore cannot sue upon the covenants that the grantor is lawfully seized of the land, and has a good * right to convey; for if these be broken, no estate passes to the assignee, and being broken before the assignment, they have become personal choses in action and so not assignable. (t)

(q) " A covenant is real when it doth run in the realty so with the land that he that hath the one, hath or is subject to the other, and so a warranty is called a real covenant." Shep. Touch. 161.

(?) Thus if A, seized of land in fee, conveys it by deed to B, and covenants with B, his heirs, and assigns, for further assurance, and then B conveys to C, and C to D, D may require A to make further assurance to him according to the covenant, and on refusal, may maintain an action against him by the common law. Meddlemore v. Goodale, 1 Rol. Abr. 521. See also Campbell v. Lewis, 3 B. & Ald. 392.

(s) He is not in fact an assignee of the covenantee unless he takes the same estate; for an assignment, by the very definition of the word, is " a transfer, or making over to another, of one's whole interest, whatever that interest may be; and an assignment for his life or years differs from a lease only in this, that by a lease one grants an interest less than his own, reserving to himself a reversion; in assignments he parts with his whole property, and the assignee consequently stands in the place of the assignor." 1 Steph. Com. 485. There is a difference, however, in this respect, between the estate or interest in the land and the land itself; for there may be an assignment of a part of the land, and the assignee may have his action. This distinction is taken by Lord Coke. " It is to be observed," says he, "that an assignee of part of the land shall vouch as assignee. As if a man makes a feoffment in fee of two acres to one, with warranty to him, his heirs and assigns, if he make a feoffment of one acre, that feoffee shall vouch as assignee; for there is a diversity between the whole estate in part, and part of the estate in the whole, or of any part. As if a man hath a warranty to him, his heirs and assigns, and he makes a lease for life, or a gift in tail, the lessee or donee shall not vouch as assignee, because he hath not the estate in fee-simple whereunto the warranty is annexed." Co. Litt. 385, a. See also Holford v. Hatch, Dougl. 183; Palmer v. Edwards, id. 187, n; Van Rensselaer v. Gallup, 5 Denio, 454; Astor v. Miller, 2 Paige, 68, 78; Van Home v. Crain, 1 Paige, 455.

(t) This is the established doctrine in this country, and it would seem to be in accordance with the older authorities in England. Shep. Touch. 170; Greenby v. Wilcocks, 2 Johns. 1; Mitchell v. Warner, 5 Conn. 497; Marston v. Hobbs, 2 Mass. 439; Ross v. Turner, 2 Eng. (Ark.) 132; Fowler v. Poling, 2 Barb. 300; Ballard v. Child, 34 Me. 355; Thayer v. Clemence, 22 Pick. 490, per Shaw, C. J. Chancellor Kent says: " The covenants of seizin, and of a right to convey, and that the land is free from incumbrances, are personal covenants, not running with the land, or passing to the assignee; for, if not true, there is a breach of them as soon as the deed is executed, and they become choses in action, which are not technically assignable. But the covenant of warranty, and the covenant for quiet enjoyment, are prospective, and an actual ouster or eviction is necessary to constitute a breach of them. They are, therefore, in the nature of real covenants, and they run with the land conveyed, and descend to heirs, and vest in assignees or

The right to sue for existing breaches does not pass to the assignee, - being mere personal choses in action, (u) - unless they be continuing breaches. As if there be a covenant to repair, which is broken and the need of repair remains, and the assignee takes the property in that condition, he may sue on the covenant, (v) But if there be arrearages of rent, the breaches of the covenant to pay are each entire, giving a distinct right of action, and on the death of the landlord these arrearages go to the personal representative and not to the heir. (w)

Covenants between landlord and tenant, lessee and reversioner, run with the land. If one who owns in fee conveys to another a less estate, such as a term of years, and enters into covenants with the grantee, which relate to the use and value of the property granted, the right of action for a breach of these covenants which the grantee has, passes to his assignee, so long as this less estate continues. (x) Such are covenants to repair, to grant estovers for repair or for firewood, to keep watercourses * in good order, (y) or to supply with water; (z) also covenants for renewal, (a) for quiet enjoyment, (b) and the usual warranties for quiet possession. (c) But if one having no estate in the land grants with covenants of warranty, as no estate passes, and nothing except by estoppel, the assignee cannot sue on these covenants, for a lessee by estoppel cannot pass anything over. (d) the purchaser. The distinction taken in the American cases is supported by the general current of English authorities, which assume the principle that covenant does not lie by an assignee for a breach done before his time. On the other hand it was decided by the K. B., in Kingdon v. Nottle, 1 M. & Sel. 355, 4 id. 53, that a covenant of seizin did run with the land, and the assignee might sue on the ground that want of seizin is a continual breach. The reason assigned for this last decision is too refined to be sound. The breach is single, entire, and perfect in the first instance." 4 Kent, Com. 471. The case of Kingdon v. Nottle was severely criticised and condemned by the Supreme Court of Connecticut, in Mitchell v. Warner, 5 Conn. 497, and it cannot be considered as law in this country.

(u) St. Saviour's Churchwardens v. Smith, 3 Burr. 1271; Tillotson v. Boyd, 4 Sandf. 516.

(v) Mascal's Case, Moore, 242, 1 Leon. 62; Vivian v. Campion, 1 Salk. 141, Lord Raym. 1125; Sprague v. Baker, 17 Mass. 586.

(w) Anon. Skin. 367; Midgley v. Lovelace, Carth. 289, 12 Mod. 46.

(x) Spencer's Case, 5 Rep. 17 b.

(y) Holmes v. Buckley, Prec. Ch. 39, 1 Eq. Ca. Abr. 27, pl. 4.

(z) Jourdain v. Wilson, 4 B. & Ald. 266.

(a) Roe v. Hayley, 12 East, 464.

(b) Noke v. Awder, Cro. E. 436.

(c) Campbell v. Lewis, 3 B. & Ald. 392.

(d) Noke v. Awder, Cro. E. 436; Whit-ten v. Peacock, 2 Bing. N. C. 411.