New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1864-02-04
TFAE ANTE-EsENT CASES,


effect of each being to r6ailirm the right of the
plaintiffs to recover on the covenants for breach
| Of which these and the numerous cases identical
in principle were brought. The opinions have
been published in pamphlet, proceeded by the
points Of the counsel on both sides, and by a
statement in the form of circular letter from
two Of the defendants counsel, commenting
upon the decisions Of the Court and upon the
general aspect Of the controversy at present.
We collect from all these an account of what
is now settled by the Courts, and OF what IL still
claimed by the defendants; dealing with the sub
jet no otherwise than IA a question of law.
We take the facti as they appear in the case
of Van Rensselaer, V. Read which does not mate
rally differ from the others. The plaintiff g
ancestor, Stephen Van Rensselaer,, deceased in
I7S9 sold and conveyed certain lands to George
Reed who in consideration thereof covenantcd
to deliver yearly III bushels of wheat and four
fat fowls, and to perform one days service with
carriage and horses. The covenants, by the
terms of the instrument of conveyance, bound
the heirs and assigns of the coyenantor, and
ran TO the heirs and assigns Of the coyenantce
The defendant in the present case became the
owner of the estate of George Reed in 1910, and
the plaintiff sues on the covenants as dcyisee un-
der the will of his father. Various points were
Originally relied on in support of the gen
eral proposition that the defendant. was
not bound to the performance of the cove
nants into which the original grantee of his es-
tate had entered; in Other words, that the cove
nants were personal, and did,not run with the
land. The present case raised the further cues
ton whether, admitting that the covenant was
real, and that the plaintiff had the right under
it 10 disrain for the rent, he had also the right
to maintain an action at common law, ~ by
statute, on the covenants themselves.
In tracing the history Of the controversy as it
has been carried on in the courts and in the
Legislature, we find a number Of questions raised
at different times and disposed Of by judicial
decisions or by legislative enactmcn's.
It's settled that, since the act Of l7s7 con-
corning tcnurcf, it has not been possible in this
| State by conveyance in Zee 10 create any
tenurcs, or feuda obligations between landlord
and tenant Conveyance therefore, such a.
these, could not ~ considered as leases, but are
len 70 operate ~ assignments, and the burdens
Of the covenants do not rest upon the heirs Of
the coycnantor as an inherited acryitude, or by
virtue of any tenure Of the land, or possibility OF
rcylrter Oh the part Of the grantor. IL wa at
one time supposed that this decision put an end
to such claims as theprcsent; but the Courts sub
seauently discovered that an act passed in 1905
might be made the foundation OF their renewal
That act, in the language of the Court OF Ap-
peals in 1859, "placed the a,signocs Of both
parties upon grants in fee upon the same foot
ing which was occupied by the assignecs Of the
parties to a lease for life or for years" Apply
ing It to these cases, the Court bound the heirs
and assigns OF the coyenantors in the same
manner to the performance Of the covenants as
If they had been covenants in a lease, and with
similar effect as if the statute of l7o7 had never
been passed.
But the Legislature interviewed between the
Courts and the suiton, and in 1860 pa sed an
act declaring " that the act Of 1906 and its SUBJ
sequcnt reGnactmcnts shall not apply to deeds
of CONVEYANCE in fee made before the pas age of
that act, nor to such deeds hereafter to be
made Tho Courts thcrcupon went still
further than they had gone before, and
decided explicitly that the covenants en-
tered into by the grantce OF the lands in behalf
of himself, his heirs and assigns, are covenants
real, which run with the land, and are binding
upon the heirs and assigns Of the coycnantorI
successfully; and that devise or assignment OF
the rent gives 10 The deysee or assignee at least
the equitable interest in the rent, and the right
to equitable remedies for is recovery without
any aid from the statute of 1905, which the act
of 1860 partially repealed. The Cour, had pre-
yiously determined that the reservation Of the
annual tribute III the deeds was u rent charge in
fee descendblc TO heirs, and dcysable and as
Hguabe in all respects like other incorporeal
Entertainments. and the decisions taken to-
gothcr thus once more, in spite Of the statute Of
IcGO. which Wa intended hy the Legislature to |
be remedial, bound TIE heirs and assigns Of the
first coyeuautor to the performance Of the
covenants for the benefit OF the heirs Of the
coycuantce.
Without reference to the statutes, judge
Seldcn. who delivered the opinion OF the Court |
Of Appeals, concscly sums up the decided
points, heretofore enumerated:
Prom the foregoing statement twill be seenthal the
Walton OF c reu n question valid that .hc covenant los e.
Payment real running with the land binding the