Blain v. Taylor

Clerks, J.

Undoubtedly, although a covenant is made by one for “ himself and his assigns,” yet if the thing to be done is merely collateral, and in no respect concerns the land, an assignee is not bound. For instance, if a lessor covenants in the lease to build a house upon other land than his, or to grind at the lessor’s mill, according to the custom, all the corn, grain, or malt which the lessee may have occasion to use or spend, these covenants are not binding on the grantee or assignee.

Where a lessee covenanted for himself, his executors, administrators, and assigns, not to hire persons to work in the mill, situated on the premises demised, who were settled in other parishes, without a parish certificate; this covenant washolden not to run with the land, or to be obligatory upon the assignee of the lease. The covenant must be such as g?er se, and not merely from collateral circumstances, affects the value of the land. (The Mayor, &c., of Congleton a. Pattison, 10 East, 130.)

The covenant in the case before us, however, -is not collateral, but relates to the land itself. The keeping of a fence or partition in repair affects the land as much as keeping a house, or any other building on the premises, in repair. In Watertown a. Cowen. (4 Paige, 510) it was decided by the Chancellor that a covenant not to erect a building in a common or public square, owned by the grantor in front of the premises conveyed, was a covenant running with the land, and passed to a subsequent grantee of the premises without any special assignment of the covenant. The case most in point is that of Kellogg a. Robinson (6 Vermont, 276), in which it was holden that a covenant in a • deed of conveyance, that the grantee shall maintain the partition fence between the lands conveyed and other lands of the grantor, was a covenant running with the land. But I consider that the statute (laws of 1854, § 9) is conclusive on this subject, in cases like that under consideration.

It expressly enacts that it shall be the duty of every owner of land adjoining any railroad, who has received, or whose grantor has received, a specific sum for compensation for fencing along the line of land taken for the purpose of said railroad, and has agreed to build and maintain a lawful' fence on the line of said road, to build and maintain said fence; and it fnrtherpro vides, that if said owner, his heir, or assignee shall not within thirty days after notice build such fence, or if built, shall neglect to maintain said fence, the railroad company may build or repair, as the case may be, and may maintain an action against the person so neglecting, for the purpose of recovering the expenses thereof. It is quite clear then that the plaintiff would be liable, by the terms of the agreement, forever to maintain in good and sufficient condition the fences on both sides of that portion of the Hew York and Harlem Railroad running through the farm which the defendants have agreed to sell to the plaintiffs. This is a liability to which a grantee would not be subjected, if no such agreement had been made, and no such compensation had been received by Robert L„ Reade, a former owner of the farm. The statute relating to division fences” imposes no liability of this kind.

Therefore, as it is not in the power of the defendants to convey this farm pursuant to their contract, free from all encumbrances, the plaintiff is entitled to recover.

The demurrer must be overruled, with cost's; and judgment thereon for the plaintiffs, with liberty to defendants to answer within ten days, on payment of costs.