REAL 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. 145; Co. Litt. 384 b.
A covenant, the obligation of which 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. Corn. 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 un dertakes the performance of the covenant. It frequently happens that each one of sev eral covenantors binds himself to perform singly the whole undertaking. The words commonly used for this purpose are "sever ally," "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. Brad ley, 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 Blackstone which determines the character of covenants from the insertion or noninsertion of the word "heir" by the covenantor, is pretty gen erally rejected. Of the other definitions, that Ir which makes a real covenant an obligation to pass realty is the most ancient. The sec ond definition is that now ordinarily under stood when the term "real covenant" is em ployed. The benefit of such covenants will always run with the land and can be enforc ed by any vendee, no matter how remote. The burden, however, will not run with the land so as to be capable of enforcement un less there be privity either of contract or es tate between the plaintiff and the defendant; Spencer's Case, 1 Sm. L. C. 115. These cove nants 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 in cumbrances, 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, Coy. 324. In the United States, however,
the covenants for seisin, for right to convey, and against incumbrances are usually con strued to be broken as soon as made and can not 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 follows: either to preserve the inheritance, as to keep in repair ; 9 B. & C. 505; Norman v. Wells, 17 Wend. (N. Y.) 148; Pollard v. Shaaffer, 1 Dall. (U. S.) 210, 1 L. Ed. 104; Kellogg v. Robinson, 6 Vt. 276, 27 Am. Dee. 550; 38 E. L. & E. 462; to keep buildings insured, and reinstate them if burned; 5 B. & Ald. 1; Thomas' Adm'rs v. Vonkapif's Ex'rs, 6 Gill & J. (Md.) 372 ; to continue the relation of landlord and tenant, as to pay rent; Herbaugh v. Zentmyer, 2 Rawle (Pa.) 159; Hurst v. Rodney, 1 Wash. C. C. 375, Fed. Cas. No. 6,937; 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 enjoy ment of the premises, as to warrant and de fend, never to claim or assert title; Fair banks v. Williamson, 7 Greenl. (Me.) 97; Trull v. Eastman, 3 Mete. (Mass.) 121, 37 Am. Dec. 126; to release suit and service; Co. Lite 384 b; to produce title-deeds in de fence of the grantee's title; Dig. tit. xxxii. c. 27, § 99; 1 S. & S. 449; to supply water to the premises; 4 B. & Ald. 266; to draw wa ter off from a mill-pond; Morse v. Aldrich, 19 Pick. (Mass.) 449; not to establish an other mill on the same stream; Norman v. Wells, 17 Wend. (N. Y.) 136; not to erect buildings on adjacent land; Trustees of Wa tertown v. Covven, 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 grant ed ; Keteltas v. Penfold, 4 E. D. Sm. (N. Y.) 122; Weyman's Ex'rs v. Ringold, 1 Bradf. (N. Y.) 40. See 2 Greenl. Ey. § 240; 2 Washb. R. P. 648; Spencer's Case, 1 Sm. L. C. 115.