Freeman v. Hurst , 1 Va. Col. Dec. 167 ( 1753 )

Debt upon a Bond Conditioned for the performance of Covenants in an Indre. The Deft, pleads Covenants performed. The Pit. assigns these Breaches. 1. That the Grantors were not Seized in fee and had not Power to Convey the Premises. 2. That the Land was Evicted by an.older Title in Ejectm’t brought See.

The Defts. rejoin That Hurst the Grantee died before the Eviction To which the Pits, have Demurred and the sole question is Whether the Adm’r can maintain an Action for the breach of Covent

I think he cannot, but that the Heir ought to have the Action.

[167] There are some Covent’s of which none shall have the Advantage but the Party or his Heirs 42. Ed. 3. 4. Fitzg. Covenant 17. And those Covenants are such as are knit to the Estate Palmer 558. 2. Lev. 13. 92. 1 Vent. 148. 161. Raym’d 213. 2. Saund. 367. All Covenants for the Security of a Title are knit to the Estate, and the Heir shall have the Advantage of the Breach of them unless the breach of them be Committed in the lifetime of the Ancestor. There the Exor may maintain an Action. So it is ruled in the Case of Lucy and Lovingston 1. Vent. 175. 176. 2. Lev. 26. But it is Admitted that if the Breach be after the death of the Ancestor the Heir must bring the Action, And the reason is plain, Because the Heir Sustains the Loss In the Case of Bull and Trankaster Winch 19. the Pit. as Ex’or brought Action and Declared, that the Deft. Enfeoffed his Testor in certain Lands and Covenanted that he was Seized of a good Estate in fee And assigns a breach, and after a Verd’t upon a Motion in Arrest of Judgm’t it was held by Hobart and Winch, that this Coven’t was annexed to the Land, And the Exor cou’d not maintain his Action

So it is Clear that the Adm’r in this Case cou’d not have maintain’d an Action of Covenant. But this is an Action of Debt upon the Bond for the performance of y’e Covenants And the Heir cou’d not have an Action upon the Bond. Which must be agreed

Ans’r. The Bond and the Covenants cant be seperated. But the Bond depends upon the Covenants, where the Covenants are void, the Bond for performance of them is void also

Soprani and Barnardi vs. Skarro. Yelv. 19. and the same point is admitted Yelv. 13. If an Obligation be given for the paym’t of Rent, and a Stranger enters whereby the Rent is discharged, the Oblig’n is discharged also. Brook. Title. Obi. pi. 6.

Therefore if there be a Connexion between the Bond and the Coven’t one that has no right to an Action upon the Covenant cannot have an Action upon the Bond. Besides the Right and the Remedy must be Inseperable. And it is a Contradiction to say, that one Man has a Right to a Thing, and that another shall have a remedy to recover it. Whatever an Ex’or or Adm’r recovers is Assets. But if the Pit. in this Case shou’d recover he must Account to the Heir. So that to give them a Judgment will Occasion a Circuity of Action, which is against the Wisdom and Policy of the Law.

This I think is clear reasoning, and I pray Judgm’t for the Deft. (tamen[?]).

But the Cause was ended by Compromise without Argument.