Norcross v. James

• Decision Date: 23 October 1885
• Citation: 140 Mass. 188,2 N.E. 946
• Parties: NORCROSS and others v. JAMES and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 188

2 N.E. 946

NORCROSS and others

v.JAMES and others.

Supreme Judicial Court of Massachusetts.

Filed October 23, 1885.

This was a bill in equity to restrain the defendants from working a quarry in breach of a covenant in a deed from one Luke Kibbe, Jr., to William N. Flynt. The case was reported to the full court on an agreed statement of facts, the material parts of which appear in the opinion.

James G. Dunning, for plaintiff.

Chas. L. Long, for defendant.

HOLMES, J.

One Kibbe conveyed to one Flynt a valuable quarry of six acres, bounded by other land of the grantor, with covenants as follows: “And I do, for myself, my heirs, executors, and administrators, covenant with the said Flynt, his heirs and assigns, that I am lawfully seized in fee of the afore-granted premises; that they are free of all incumbrances; that I will not open or work, or allow any person or persons to open or work, any quarry or quarries on my farm or premises in said Long Meadow.” By mesne conveyances the plaintiffs have become possessed of the quarry conveyed to Flynt, and the defendants of the surrounding land referred to in the covenant. The defendants are quarrying stone in their land like that quarried by the plaintiffs; and the plaintiffs bring their bill for an injunction. The discussion of the question under what circumstances a land-owner is entitled to rights created by way of covenant with a former owner of the land has been much confused since the time of Lord COKE, by neglecting a distinction, which he stated with perfect clearness, between those rights which run only with the estate in the land and those which are said to be attached to the land itself: “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.” Chudleigh's Case, 1 Coke, 122b; S.C. 1 Poph. 70, 71.

Rights of the class represented by the ancient warranty, and now by the usual covenants for title, are pure matters of contract, and from a very early date down to comparatively modern times, lawyers have been perplexed with the question, how an assignee could sue upon a contract to which he was not a party. West, Symboleog. I. § 35; Wing.Max. 44, pl. 20, 55, pl. 10; Co.Litt. 117a; Sir Moyle Finch's Case, 4 Inst. 85. But an heir could sue upon a warranty of his ancestor, because for that purpose he was eadem persona cum antecessore. See Y.B. 20 & 21 Edw. I. 232, (Rolle's Ed.;) Oates v. Frith, Hob. 130; Bain v. Cooper, 1 Dowl.Pr.Cas.(N.S.) 11, 14. And the conception was gradually extended in Bract qualified way to assigns, where they were mentioned in the deed. Bract. fol. 17b; 67a, 380b; 381; Fleta, III. c. 14, § 6; 1 Britt.(Nich.Ed.) 255, 256; Y.B. 20 Edw. I. 232-234, (Rolle's Ed.;) Fitz.Abr. “Covenant,” pl. 28; Vin.Abr. “Voucher,” N, p. 59; Y.B. 14 Hen. IV., 56; 20 Hen. VI. 6, 34b; Old Natura Brevium, “Covenant,” 67, B, C, in Rastell's Law Tracts Ed. 1534; Dr. & Student, I. c. 8; F.N.B. 145, A; Co.Litt. 384b; Com.Dig. “Covenant,” B 3; Middlemore v. Goodale, Cro.Car. 503, 505; S.C., W. Jones, 406; Philpot v. Hoare, 2 Atk. 219. But in order that an assignee should be so far identified in law with the original covenantee he must have the same estate,-that is, the same status or inheritance,-and thus the same persona quoad the contract. But, as will be seen, the privity of estate which is thus required is privity of estate with the original covenantee, not with the original covenantor; and this is the only privity of which there is anything said in the ancient books. See further, Y.B. 21 & 22 Edw. I. 148, (Rolle's Ed.;) 14 Hen. IV., pl. 5. Of course we are not now speaking of cases of landlord and tenant, and it will be seen that the doctrine has no necessary connection with tenure. F.N.B. 134, E. We may add that the burden of an ordinary warranty in fee did not fall upon assigns, although it might upon an heir, as representing the person of his ancestor. Y.B. 32 & 33 Edw. I. 516, (Rolle's Ed.)

On the other hand, if the rights in question were of the class to which commons belonged, and of which easements are the most conspicuous type, these rights, whether created by prescription, grant, or covenant, when once acquired were attached to the land, and went with it, irrespective of privity, into all hands, even those of a disseizor. “So a disseizor, abator, intruder, or the lord by escheat, etc., shall have them as things annexed to the land.” Chudleigh's Case, ubi supra. See 1 Britt. (Nich.Ed.) 361; Keilw. 145, 146, pl. 15; F.N.B. 180, N; Sir H. Nevil's Case, Plowd. 377, 381. In like manner, when, as was usual, although not invariable, the duty was regarded as falling upon land, the burden of the covenant or grant went with the servient land into all hands, and of course there was no need to mention assigns. See cases supra et infra. The phrase consecrated to cases where privity was not necessary was transit terra cum onere. Bract. fol. 382, a, b; Fleta, VI. c. 23, § 17. See Y.B. 29 Edw. I. 360, (Rolle's Ed.;) Keilw. 113, pl. 45. And it was said that “a covenant which runs and rests with the land lies for or against the assignee at common law, quia transit terra cum onere, although the assignee be not named in the covenant.” Hyde v. Dean of Windsor, Cro.Eliz. 552; Id. 457; S.C., Co. R. 24a; Moore, 399.

It is not necessary to consider whether possession of the land alone would have been sufficient to maintain the action of covenant. It is enough for our present purposes that it carried the right of property. Neither is it necessary to consider the difficulties that have sometimes arisen in distinguishing rights of this latter class from pure matters of contract, by reason of their having embraced active duties as well as those purely passive and negative ones, which are plainly interests carved out of a servient estate and matters of grant. The most conspicuous example is Pakenham's Case, Y.B. 42 Edw. III. 3 pl. 14, where the plaintiff recovered in covenant as terra-tenant, although not heir, upon a covenant or prescriptive duty to sing in the chapel of his manor. Spencer's Case, 5 Coke, 16a, 17b. Another which has been recognized in this commonwealth is the quasi easement to have fences maintained. Bronson v. Coffin, 108 Mass. 175, 185;S.C. 118 Mass. 156. Repairs were dealt with on the same footing. They were likened to estovers and other rights of common. 5 Coke, 24a, b; Hyde v. Dean of Windsor, ubi supra. See F.N.B. 127; Spencer's Case, ubi supra; Ewre v. Strickland, Cro.Car. 240; Brett v. Cumberland, 1 Rolle, 359, 360; and other examples might be given. See Bract. 382, a, b; Fleta, VI. c. 23, § 17; Y.B. 20 Edw. I. 360; Keilw. 2a, pl. 2; Y.B. 6 Hen. VII. 14b, pl. 2; Co.Litt. 384b, 385a; Cockson v. Cock, Cro.Jac. 125; Bush v. Cole, 12 Mod. 24; S.C. 1 Salk. 196; 1 Show. 388; Carth. 232; Sale v. Kitchingham, 10 Mod. 158. The cases are generally landlord and tenant cases; but that fact has nothing to do with the principles laid down.

When it is said, in this class of cases, that there must be a privity of estate between the covenantor and the covenantee, it only means that the covenant must impose such a burden on the land of the covenantor as to be in substance, or to carry with it, a grant of an easement or quasi easement, or must be in aid of such a grant, (Bronson v. Coffin, ubi supra,) which is...