The technical expression for the rule was that they were annexed
to the estate in privity. Nothing was easier than to overlook the
technical use of the word "estate," and to say that such
covenants went with the land. This was done, and forthwith all
distinctions became doubtful. It probably had been necessary to
mention assigns in covenants for title, as it certainly had been
to give them the benefit of the ancient warranty; /1/ for this
seems to have been the formal mark of those covenants which
passed only to privies. But it was not necessary to mention
assigns in order to attach easements and the like to land. Why
should it be necessary for one covenant running with the land
more than another? and if necessary for one, why not for all? /2/
The necessity of such mention in modern times has been supposed
to be governed by a fanciful rule of Lord Coke's. /3/ On the
other hand, the question is raised whether covenants which should
pass irrespective of privity are not governed by the same rule
which governs warranties.
These questions have not lost their importance. Covenants for
title are in every deed, and other covenants are [402] only less
common, which, it remains to show, belong to the other class.
Chief among these is the covenant to repair.
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