#### M. Sexauer, Appellant, v. John Wilson and John M. Krausa.

1 Covenants running with land: agreement to maintain division fence. In determining whether a covenant in a deed will run with the land the questions are (1) whether the parties intended to charge the land; and (2) whether the burden is one which may be imposed consistently with policy and principle; and the intent to charge the land in the hands of grantees may be gathered from the language of the instrument though no such express words are used; hence an agreement to perpetually maintain a division fence is a covenant running with the land.

2 Covenants: liability of grantee for performance. A grantee i*358n accepting a deed containing covenants to be performed by-him becomes bound for their performance.

3 Same. A grantee is not personally liable upon a covenant running with the land after he has parted with the title.

*Appeal from Polk District*Court.— Hon. Hugi-i BbennaN, Judge.

Tuesday, November 19, 1907.

PlaiNtipp conveyed to John Wilson ten acres of land out of a half section then owned by him, and in the deed inserted this clause: “ The grantee herein further agrees to

perpetually maintain a tight fence sufficient to stop hogs and all other live stock between said land described above and all property of the grantor herein adjacent thereto.” No line fence then existed, but Wilson erected partition fences, as agreed, soon thereafter, and maintained them during his occupancy of the premises, from 1889 until 1904, when he conveyed the land to defendant Krausa. The latter immediately took possession, but failed to keep the fences in repair. Finally, plaintiff repaired them at an expense of $18, for which he seeks recovery. Upon proof of the foregoing facts, the court directed a verdict for defendants. From judgment entered thereon the cause, being properly certified, plaintiff appeals.

*Affirmed,*as to Wilson. *Reversed*as to Krausa.

*Dale & Harvison,*for appellant.

*Miller & Wallingford*and *T. L.*Sellers, for appellees.

Ladd, J.

1. Covenants with land* ínahftTfedí0 visionfence. The testimony of plaintiff failed to show the existence of a division fence at the time the deed was executed by him to Wilson containing the latter’s w agreement to perpetually maintain a tight fence sufficient to stop hogs and all other livestock between the land above described and' all property of the grantor herein adjacent thereto.” This *359being so, the subject of the covenant was not *in esse,,*and, as the clause does not indicate by the use of the word “ assigns ” that the grantee’s successors in interest are to be bound, appellees contend that the covenant was personal, and did not run with the land. They rely on *Spencer's*case, 5 Coke, 16, 1 *Smith's Leading Cases,*and authorities in this country in which it is cited with apparent approval or applied as controlling. See *Hartung v. Witte,*59 Wis. 294 (18 N. W. 175) ; *Gulf, C. & S. F. Ry. Co. v. Smith,*72 Tex. 122 (9 S. W. 865, 2 L. R. A. 281) ; *Newburg Petroleum Co. v. Weere,*44 Ohio St. 604 (9 N. E. 845) ; *Bronson v. Coffin,*108 Mass. 185 (11 Am. Rep. 335); *Ft. Wayne Water Power Co. v. Board of Commissioners,*24 Ind. App. 514 (57 N. E. 146) ; *Thompson v. Rose,*8 Cow. (N. Y.), 269; *Hansen v. Meyer,*81 Ill. 321 (25 Am. Rep. *282); Woodruff v. Trenton Water Power Co.,*10 N. J. Eq. 506; *Lynn v. Mt. Savage Iron Co.,*34 Md. 603; *Bream v. Dickerson,*2 Humph. (Tenn.) 126.

*Spencer’s*case, as reported by Lord Ooke, appears to be a series of seven resolutions by the judges concerning covenants, “ which of them would run with the land, and which of them are collateral and do not go with the land, and when the assignee shall be bound, without naming him, and where not; and where he shall be bound, although he be expressly named, and where not.” This covered many points not involved. It is said in the first resolution that:

> When the covenant doth extend to the thing *in esse,*parcel of the demise, the thing to be done by force of the covenant is *quodam modo*annexed and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee., although he be not bounden by express words; but, when the covenant doth extend to a thing which is not in being at the time of the demise made, the same cannot be appurtenant or annexed to a thing which hath no being. As if the lessee covenanteth to repair the houses demised to him during the term, the same is parcel'of the contract, and extendeth to the support of the thing demised, and therefore is *quodam modo*annexed and appurtenant to houses, and *360shall bind the assignee, although he is not bound expressly by the covenant. But in the case at bar the covenant doth concern a thing which was not *in esse*at the time of the demise made, but to be newly built after, and therefore shall bind the covenantor, his executors or administrators, and not the assignee, for the law will not annex the covenant' to a thing which hath no being.

> Second resolution: “It was resolved in this case, if the lessee had covenanted for him and his assigns that they would make a new wall upon some part of the thing demised, that forasmuch as it is to be done upon the land demised that it should bind the assignee; for, although the covenant doth extend to a thing to be newly made, yet it is to be made upon the thing demised, and the assignee is to take the benefit of it, and therefore shall bind the assignee by express words.”

Subsequent decisions leave it exceedingly doubtful whether the court so decided. In the English notes to *Spencer’s*case, in 15 *English Ruling*Cases, 244, the author says that Anonymous case in Moore, 159, 300, has been identified as a report of the final determination of *Spencer’s*case. The court is there reported to have held that: “ Notwithstanding that covenants lack words [assigns], yet each, by acceptance of possession, has made himself subject to all covenants concerning the land, but not to collateral covenants; and covenants of reparations and building of walls or houses are covenants inherent to the land with which the assigns without special words shall be charged.” Chief Baron Pollock, in speaking for the Court of Exchequer, in *Minshull v.*Oaks, 11 H. & N. 793, suggested that “the explanation may be that Lord Coke reported a variety of arguments and opinions .expressed, while Moore gave the ultimate decision,” and noted that no reason was given in *Spencer’s*case for the alleged difference between where the assignee is named and is not named, and that the reason for binding the one is equally applicable to the other. Attention is directed to the circumstance that the resolutions were never acted on, and that,. according to Moore, the decision was the other way, as was *361that in *Smith v. Arnold,*3 Salk, 4. There the question was whether the assignee of a.'lessee for life who had covenanted for himself and as executor to erect an outhouse on the demised premises might be charged in an action on the covenant if the outhouse was not built; and the decision was as follows : “ It was insisted that he could not, because the assignor had covenanted only for himself, the executors, and administrators, leaving out the word ‘ assigns,’ which is very true; but adjudged that the assignee by the acceptance of the possession of the lands had made himself subject to all the covenants which run with the land, of which repairing is one, building is another, and to such he is bound without being named by that special word ‘ assigns,’ but not to any collateral covenants.” In the case of *Bally v. Wells,*3 Wilson’s Reports, 24, determined in 1769, the word “assigns” appears in the covenant, but the court, after quoting, though not fully, the resolutions in *Spencer’s*case, said by illustration : “ As if lessee for life covenants for him, his executors and administrators, to build a wall within his term and aft-erwards he assigns over his estate, the grantee of the reversion shall have covenant against the assignees, and notwithstanding the covenant wants the word ‘ assigns,’ yet every assignee by accepting the possession hath made himself subject to all covenants concerning the land, and not to collateral covenants and covenants of repair and building walls or houses, are covenants inherent in the land with which the assigns, without especial words, shall be'charged.” The case of *Doughty v. Bowman,*17 L. J. (N. S.) 111, though sometimes cited, has no bearing on the question. The author of the English notes to *Spencer’s*case in 1 *Smith’s Leading Oases*(8th Ed.) 155, while conceding the strong resemblance to Anonymous case reported by Moore, points out differences which leave the matter in some doubt. Certain it is, however, that no definite pronouncement on the particular case presented appears in Lord Coke’s report of *Spencer’s*case, and, in view of the latter decisions, it ought not to be said *362tbat tbe use of “ assigns ” as a technical word is or ever has been essential to the running of a covenant with the land at the common law. There never was ground for a rational distinction between the assignee named and not named as to things not *in esse.*As to the benefit or burden of such a covenant, these would be in exactly the same-position, and, if this is good ground for holding an assignee named, it is equally good for holding one not named. Moreover, as remarked in the annotation in *Smith’s Leading Gases,*the covenant may as well be said to be annexed, not to the thing not *in esse,*but to the land itself upon which the thing is to be made or done, and in respect of which, and not of the thing not *in esse,*there is privity of estate, which is held by many of the decisions to be the foundation of the running of covenants.

In determining whether a covenant will run with the land, the material inquiries always are (1) whether the parties meant to charge the land; and (2) whether the burden is one that can be imposed consistently with policy and principle. That a covenant to maintain a division fence touches and concerns the land itself, and for this reason appropriately may be the subject of such a covenant, is fully confirmed by the authorities. *Kellog v. Robinson,*6 Vt. 276 (27 Am. Dec. 550); *Hazlett v. Sinclair,*76 Ind. 488 (40 Am. Rep. 254) ; *Brown v. Railway Co.,*36 Or. 128 (58 Pac. 1104, 47 L. R. A. 409, 78 Am. St. Rep. 761) ; *Easter v. Railway,*14 Ohio St. 48; *Burbank v. Pillysburg,*48 N. H. 475 (97 Am. Dec. 633) ; *Brownson v. Coffin,*108 Mass. 175 (11 Am. Rep. 335). See note to *Gibson v. Holden*(Ill.) 56 Am. Rep. 161*et seq.;*Washburn on Easements, 5. Covenants intended to charge the land may be shown by the employment of the word “ assigns,” and also may be quite as strongly indicated by other language contained in the deed, and generally the intention of the parties is to be ascertained from the tenor of the instrument, the nature of the thing to be done, its relation to the property, the period *363of its continuance, and the like. Thus in *Masury v. Southworth,*9 Ohio St. 340, the court held that a covenant to keep the buildings insured during the term of lease runs with the land, even though the word “ assigns ” was not used, saying: “ Our conclusion is that the word ‘ assigns ’ is not used in a technical sense and as the only word appropriate for the purpose, but that equivalent words, or any clear manifestation of intent, will suffice. We think the real question must be, the covenant being one which may be annexed to the estate and run with the land, whether such was the intention of the parties, as expressed in the deed. The important consideration is whether the covenant is annexed to the estate and runs with the land. If this be so, rights and liberties of those who take the estate and possess the land during the term flow from the privity of estate, and not from any assignment of right of contract. If the covenant cannot or does not run with the land, no words of assignment can create a privity of estate. If a privity of estate be created, no words of assignment are necessary.” As bearing hereon, see, also, *Fitch v. Johnson,*104 Ill. 111, and *Bald Eagle Valley Ry. Co. v. Nittany Valley Ry. Co.,*171 Pa. 284 (33 Atl. 239, 29 L. R. A. 423, 50 Am. St. Rep. 807) ; *Brown v. Railway Co., supra; Duffy v. Railway Co.,*2 Hilt. (N. Y.), 496; *Kellog v. Bobinson, supra; Brockmeyer v. Sanitary Dist.,*118 Ill. App. 49; *Railroad Co. v. Bosworth,*46 Ohio St. 81 (18 N. E. 533) ; *Midland Ry. Co. v. Fisher,*125 Ind. 19 (24 N. E. 756, 8 L. R. A. 604, 21 Am. St. Rep. 189) ; Platt on Covenants, 65; *Harris v. Goslin,*3 Har. (Del.) 338; *Peden v. Railway Co.,*73 Iowa, 328; *Kennedy Bros. v. Insurance Co.,*119 Iowa, 29; *Teachout v. Lodge of I. O. O. F.,*128 Iowa, 380. Eeverting to the covenant in suit, it will be observed that Wilson as grantee of plaintiff agreed (1) to maintain a división fence of a particular character; and (2) to do so perpetually. The thing to be done and continued inhered in the land and was such as might be annexed to the freehold as a covenant running with the land; and from the promise *364that the maintenance should he perpetual, to continue longer than either party could have anticipated Wilson or his representative would survive, the intention of the parties that it run with the land is fairly to be inferred. Having so intended, the covenant should be construed accordingly. In other words, “ the covenant did not relate solely to something not *in esse*at the time it was made, but related to the land so directly and in such a manner ” that a third person taking title from the covenantor will be bound thereby.

2. Covenants; grantor for performance. II. No question is made but that acceptance of the deed by the grantee obligated him to perform the conditions of the covenant. There is a sharp conflict in the decisions, but this court appears to be committed to t*he*doctrine that in accepting a deed poll contain-jng covenants or conditions to be performed by him in consideration of the grant he becomes bound for their performance. *Peden v. Railway,*73 Iowa, 328; *Kennedy Bros. v. Insurance Co.,*119 Iowa, 29. And such is the voice of the great weight of authority. *Hickey v. Railway,*51 Ohio St. 40 (36 N. E. 672, 23 L. R. A. 396, and note, 46 Am. St. Rep. 545) ; *Georgia Southern R. Co. v. Reeves,*64 Ga. 492; *Burbank v. Pillsbury, supra; Schmucker v. Sibert,*18 Nan. 104 (26 Am. Rep. 765) ; *Maynard v. Moore,*76 N. C. 158; *Midland R. Co. v. Fisher,*125 Ind. 19 (24 N. E. 758, 8 L. R. A. 604, 21 Am. St. Rep. 189) ; decisions collected in 11 Cyc. 1045. The doctrine is an ancient one, being laid down in Shephard’s Touchstone, 117, as follows: “If feoffment or lease be made to two, . . . and there are divers covenants in the deed to be performed on the part of the feoffees or lessees, and one of them doth not seal . . . and he that doth not seal notwithstanding accept of the estate, and occupy the land conveyed or demised, in these eases, as touching all inherent covenants, . . . they are bound by these covenants as much as if theydo seal the deed.” ° An English author, after contending for the rule hereinafter mentioned, observes that, *365as to above stated that, “ Perhaps the doctrine has. been too long sanctioned to be now reversed. At all events, it is an introduction of an equitable principle into a court of law: the acceptance of a deed being considered equivalent to an actual execution by the lessee.” Platt on Covenants, 18. - Cases to the contrary proceed upon the theory that an action of covenant is of technical nature, and cannot be maintained, except against the person who by himself or some other person in his behalf has executed a deed under seal or under peculiar circumstances has agreed to do a certain thing. *Kennedy v. Owen,*136 Mass. 199 ; *Maule v. Weaver,*7 Pa. 329; *Johnson v. Muzzy,*45 Vt. 419 (12 Am. Rep. 214). Without entering upon a discussion of the merits of the controversy already discussed with much learning in the books, we are content to adhere to the equitable rule that acceptance of a deed poll hinds the grantee to the performance of covenants contained therein, supported as it is'by the better reasoned cases and' in effect approved by previous decisions of this court.

3. Same. III. Having found that the covenantor’s grantee is bound by the covenant, the next inquiry is whether the cove-nantor also is liable thereon subsequent to parting with the title. This necessarily depends on the intention of the parties to the first deed. While the covenant is personal in form, this is not controlling, for the deed must have been executed with the understanding that (1) Wilson, the grantee, would have no right to enter on the land after passing title to another in order to repair or replace the fence; (2) that he would enjoy nq benefit therefrom; and (3), owing to the nature of the covenant, neither he nor his representatives could perform by maintaining the fence perpetually. Of necessity the grantor must have relied on the land with which the covenant ntns to secure its performance, and, fairly construed, Wilson’s obligation was to make the fence and maintain it only during the time he owned the land. It could not have been his intention to assume an obligation *in pertetuum,*and, in event of disposing *366of the fee, to remain bound for life. On the other hand, the grantor naturally had in mind recourse on those who should own the land when the fence should need repair, rather than this grantee, who might be gone before this would he required. This conclusion seems reasonable, and has the support of *Hickey v. Railway,*51 Ohio St. 40 (36 N. E. 672, 23 L. R. A. 396, 46 Am. St. Rep. 545). It follows that the district court rightly dismissed the petition as to Wilson, but should have entered judgment against Krausa.

Judgment for Wilson affirmed, for Krausa *reversed.*