It is said by some authorities that the benefit of a covenant to do acts upon land of the covenantee, made with the "covenantee and his assigns," will run with the land though no estate passed between the cove nantor and covenantee; Rawle. Coy. 335; Year B. 42 Edw. III. 13; Allen v. Culver, 3 Den. (N. Y.) 301; but the weight of author ity is otherwise; 2 Sugd. Vend. 468; Platt, Coy. 461. Covenants concerning title gen erally run with the land; Carter v. Den man's Ex'rs, 23 N. J. L. 260; except those that are broken before the land passed; 4 Kent 473; Swasey v. Brooks, 30 Vt. 692. See COVENANT OF SEisIN, etc. "Until breach, covenants for title, without distinction be tween them, run with'the land tO heirs and assigns. But while this is well settled, a strong current of American authority has set in favor of the position that the cove nants for seisin, for right to convey, and, perhaps, against incumbrances, are what are called covenants in prceeenti,—if broken at all, their breach occurs at the moment of their creation. . . . These covenants, it is held, are then turned into a mere right of action, which is not assignable at law and can neither pass to an heir, a devisee, or a subsequent purchaser. A distinction is con sidered, by this class of cases, to exist, in this respect, between the covenants first named, and those for quiet enjoyment, of warranty, and for further assurance, which are held to be prospective in their charac ter;" Rawle, Coy. §§ 204, 205. See also Greenby v. Wilcocks, 2 Johns. (N. Y.) 1, 3 Am. Dec. 379.
Covenants in leases, by virtue of the stat ute 32 Hen. VIII. c. 34, which has been re enacted in most of the states, are assignable as respects assignees of the reversion and of the lease. The lessee continues liable on express covenants after an assignment by him, but not on implied ones ; 4 Term 98 ; but he is' liable to the assignee of the lessor on implied covenants, at common law ; Platt, Coy. 532; 2 Sugd. Vend. 466; Burton, It P. § 855. See 1 Washb. R. P. 526.
In case of the assignment of lands in par cels, the assignees may recover pro rata, and the original covenantee may recover accord ing to his share of the original estate re maining; 2 Sugd. Vend. 508; Rawle, Cov. § 215; Allen v. Little, 36 Me. 170; McClure's Ex'rs v. Gamble, 27 Pa. 288; White v. Whit ney, 3 Mete. (Mass.) 87; Dickinson v. Hoomes's Adm'r, 8 Gratt. (Va.) 407 ; Dough erty v. Duvall's Heirs, 9 B. Monr. (Fy.) 58. But covenants are not, in general, apportion able; McClure's Ex'rs v. Gamble, 27 Pa. 288.
See Spencer's case, 1 Sm. Lead. Cas. 206.
In Practice. A form of action which lies to recover damages for breach of a contract under seal. It is one of the brevia formata of the register, and is sometimes a concurrent remedy with debt, though never with as aumpsit, and is the only proper remedy where the damages are unliquidated in na ture and the contract is under seal; Fitzh. N. B. 340; Chit. Pl. 112, 113; 2 Steph. N. P. 1058. As to the early history of the action, see Salmond, 3 Sel. Essays, Anglo-Amer. L.
H. 324.
The action lies, generally, where the cove nantor does some act contrary to his agree ment, or fails to do or perform that which he has undertaken ; 4 Dane, Abr. 115; or does that which disables him from perform ance; Cro. Eliz. 449 ; 15 Q. B. 88; Heard v. Bowers, 23 Pick. (Mass.) 455.
To take advantage Of an oral agreement modifying the original covenant In an es sential point, the covenant must be aban doned and assumpsit brought; Lehigh Coal & Nay. Co. v. Harlan, 27 Pa. 429 ; Sherwin v. R. R. Co., 24 Vt. 347.
The venue is local when the action ie founded on privity of estate ; 1 Wms. Saund. 241 b, n.; and transitory when it is founded upon privity of contract. As between origi nal parties to the covenant, the action is transitory; and, by 32 Hen. VIII. c. 34, an action of covenant by an assignee of the reversion against a lessor, or by a lessee against the assignee of the reversion, is also transitory; 1 Chit. Pl. 274.
The declaration must, at common law, aver a contract under seal; 2 Ld. Rum. 1536 ; and either make profert thereof Or excuse the omission ; 3 Term 151; at least of such part as is broken; Bender v. Fromberger, 4 Dall. (U. S.) 436, 1 L. Ed. 898; Killian v. Herndon, 4 Rich. (S. C.) 196; and a breach or breaches ; Fortenbury v. Tunstall, 5 Ark. 263; Steele v. Curie, 4 Dana (Ky.) 381; which may be by negativing the words of the covenant in actions upon covenants of seisin and right to convey ; Rawle, Coy. § 176; or according to the legal effect ; but must set forth the incumbrance in case of a covenant against incumbrances ; id. § 86; and must allege an eviction in case of warranty; id. § 155. The disturbance must be averred to have been under lawful title; id. No con sideration need be averred or shown, as it is said to be implied from the seal ; but per formance OT an act which constitutes a condi tion precedent to the defendant's covenant, if there be any such, must be averred ; 2 Greenl. Ev. § 235 ; Nesbitt v. McGehee, 26 Ala. 748. The damages laid must be large enough to cover the real amount sought to be recovered ; Clarke v. McAnulty, 3 S. & R. (Pa.) 364; Jordan v. Cooper, id. 567.
There is no plea of general issue in this action. Under non eat facturn, the defend ant may show any facts contradicting the making of the deed; Haggart v. Morgan, 5 N. Y. 422, 55 Am. Dee. 350; Agent of State Prison v. Lathrop, I Mich. 438 ; as, personal incapacity; 2 Campb. 272 ; that the deed was fraudulent; Lofft 457; was not deliver ed ; 4 Esp. 255 ; or was not executed by all the parties ; 6 Maule & S. 341.
Non infregit conventionem and nil debet have both been held insufficient; Com. Dig. Pleader, 2 V, 4. As to the effect of cove nant performed, see COVENANTS PERFORMED.
The judgment is that the plaintiff recover a named sum for the damages which he has sustained by reason of the breach or breach es of covenant, together with costs.