Chief among these is the covenant to repair.  It has already been observed that an easement of fencing may be annexed to land, and it was then asked what was the difference in kind between a right to have another person build such structures, and a right to have him repair structures already built.  Evidence is not wanting to show that the likeness was perceived.  Only, as such covenants are rarely, if ever, made, except in leases, there is always privity to the original parties.  For the lease could not, and the reversion would not be likely to, go by disseisin.

The Dean of Windsor’s Case decides that such a covenant binds an assignee of the term, although not named.  It is reported in two books of the highest authority, one of the reporters being Lord Coke, the other Croke, who was also a judge.  Croke gives the reason thus:  “For a covenant which runs and rests with the land lies for or against the assignee at the common law, quia transit terra cum onere, although the assignees be not named in the covenant.” 1 This is the reason which governed easements, and the very phrase which was used to account for all possessors being bound by a covenant binding a parcel of land to warranty.  Coke says, “For such covenant which extends to the support of the thing demised is quodammodo appurtenant to it, and goes with it.”  Again the language of easements.  And to make this plainer, if need be, it is added, “If a man grants to one estovers to repair his house, it is appurtenant to his house.”  Estovers for [403] repair went with the land, like other rights of common, 1 which, as Lord Coke has told us, passed even to disseisors.

In the next reign the converse proposition was decided, that an assignee of the reversion was entitled in like manner to the benefit of the covenant, because “it is a covenant which runs with the land.” 2 The same law was applied, with still clearer reason, to a covenant to leave fifteen acres unploughed for pasture, which was held to bind an assignee not named, 3 and, it would seem, to a covenant to keep land properly manured. 4

If the analogy which led to this class of decisions were followed out, a disseisor could sue or be sued upon such covenants, if the other facts were of such a kind as to raise the question.  There is nothing but the novelty of the proposition which need prevent its being accepted.  It has been mentioned above, that words of covenant may annex an easement to land, and that words of grant may import a covenant.  It would be rather narrow to give a disseisor one remedy, and deny him another, where the right was one, and the same words made both the grant and the covenant. 5