A warranty was a covenant which sometimes yielded but damages, and a covenant in the old law sometimes yielded land.  In looking at the early cases we are reminded of the still earlier German procedure, in which it did not matter whether the plaintiff’s claim was founded on a right of property in a thing, or simply on a contract for it. 1 Covenant was brought for a freehold under Edward I., 2 and under Edward III. it seems that a mill could be abated by the same action, when maintained contrary to an easement created by covenant. 3 But Lord Coke did not mean to lay down any sweeping doctrine, for his conclusion is, that “a covenant is in many cases extended further than the warrantie.”  Furthermore, this statement, as Lord Coke meant it, is perfectly consistent with the other and more important distinction between warranties and rights in the nature of easements or covenants creating such rights.  For Lord Coke’s examples are confined to covenants of the latter sort, being in fact only the cases just stated from the Year Books.

Later writers, however, have wholly forgotten the distinction in question, and accordingly it has failed to settle the disputed line between conflicting principles.  Covenants which started from the analogy of warranties, and others to which was applied the language and reasoning of easements, have been confounded together under the title of [401] covenants running with the land.  The phrase “running with the land” is only appropriate to covenants which pass like easements.  But we can easily see how it came to be used more loosely.

It has already been shown that covenants for title, like warranties, went only to successors of the original covenantee.  The technical expression for the rule was that they were annexed to the estate in privity.  Nothing was easier than to overlook the technical use of the word “estate,” and to say that such covenants went with the land.  This was done, and forthwith all distinctions became doubtful.  It probably had been necessary to mention assigns in covenants for title, as it certainly had been to give them the benefit of the ancient warranty; 1 for this seems to have been the formal mark of those covenants which passed only to privies.  But it was not necessary to mention assigns in order to attach easements and the like to land.  Why should it be necessary for one covenant running with the land more than another? and if necessary for one, why not for all? 2 The necessity of such mention in modern times has been supposed to be governed by a fanciful rule of Lord Coke’s. 3 On the other hand, the question is raised whether covenants which should pass irrespective of privity are not governed by the same rule which governs warranties.

These questions have not lost their importance.  Covenants for title are in every deed, and other covenants are [402] only less common, which, it remains to show, belong to the other class.