/5/
The language commonly used, however, throws doubt and darkness
over this and every other question connected with the subject. It
is a consequence, already referred to, of confounding covenants
for title, and the class last discussed, [404] under the name of
covenants running with the land. According to the general opinion
there must be a privity of estate between the covenantor and
covenantee in the latter class of cases in order to bind the
assigns of the covenantor. Some have supposed this privity to be
tenure; some, an interest of the covenantee in the land of the
covenantor; and so on. /1/ The first notion is false, the second
misleading, and the proposition to which they are applied is
unfounded. Privity of estate, as used in connection with
covenants at common law, does not mean tenure or easement; it
means succession to a title. /2/ It is never necessary between
covenantor and covenantee, or any other persons, except between
the present owner and the original covenantee. And on principle
it is only necessary between them in those cases--such as
warranties, and probably covenants for title--where, the
covenants being regarded wholly from the side of contract, the
benefit goes by way of succession, and not with the land.
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