In the reign of Henry IV., another case 2 arose upon a covenant very like the last.  But this time the facts were reversed.  The plaintiff counted as heir, but did not allege that he was tenant of the manor.  The defendant, not denying the plaintiff’s descent, pleaded in substance that he was not tenant of the manor in his own right.  The question raised by the pleadings, therefore, was whether the heir of the covenantee could sue without being tenant of the manor.  If the covenant was to be approached from the side of contract, the heir was party to it as representing the covenantee.  If, on the other hand, it was treated as amounting to the grant of a service like an easement, it would naturally go with the manor if made to the lord of the manor.  It seems to have been thought that such a covenant might go either way, according as it was made to the tenant of the manor or to a stranger.  Markham, one of the judges, says:  “In a writ of covenant one must be privy to the covenant if he would have a writ of covenant or aid by the covenant.  But, peradventure, if the covenant [399] had been made with the lord of the manor, who had inheritance in the manor, ou issint come determination poit estre fait, it would be otherwise,” which was admitted. 1 It was assumed that the covenant was not so made as to attach to the manor, and the court, observing that the service was rather spiritual than temporal, were inclined to think that the heir could sue. 2 The defendant accordingly over and set up a release.  It will be seen how fully this agrees with the former case.

The distinction taken by Markham is stated very clearly in a reported by Lord Coke.  In the argument of Chudleigh’s Case the line is drawn thus:  “Always, the warranty as to voucher requires privity of estate to which it was annexed,” (i.e. succession to the original covenantee,) “and the same law of a use ....  But of things annexed to land, it is otherwise, as of commons, advowsons, and the like appendants or appurtenances ....  So a disseisor, abator, intruder, or the lord by escheat, &c., shall have them as things annexed to the land.  So note a diversity between a use or warranty, and the like things annexed to the estate of the land in privity, and commons, advowsons, and other hereditaments annexed to the possession of the land.” 3 And this, it seems to me, is the nearest approach which has ever been made to the truth.

Coke, in his Commentary on Littleton (385 a), takes a distinction between a warranty, which binds the party to yield lands in recompense, and a covenant annexed to the land, which is to yield but damages.  If Lord Coke had [400] meant to distinguish between warranties and all covenants which in our loose modern sense are said to run with the land, this statement would be less satisfactory than the preceding.