... So a
disseisor, abator, intruder, or the lord by escheat, &c., shall
have them as things annexed to the land. 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." /3/ And
this, it seems to me, is the nearest approach which has ever been
made to the truth.
Coke, in his Commentary on Littleton (385 a), takes a distinction
between a warranty, which binds the party to yield lands in
recompense, and a covenant annexed to the land, which is to yield
but damages. If Lord Coke had [400] meant to distinguish between
warranties and all covenants which in our loose modern sense are
said to run with the land, this statement would be less
satisfactory than the preceding.
A warranty was a covenant which sometimes yielded but damages,
and a covenant in the old law sometimes yielded land. In looking
at the early cases we are reminded of the still earlier German
procedure, in which it did not matter whether the plaintiff's
claim was founded on a right of property in a thing, or simply on
a contract for it. /1/ Covenant was brought for a freehold under
Edward I., /2/ and under Edward III.
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