Brooks v. Water Lot Co.

By the Court. — Nisbet, J. delivering the opinion. [1.] The action was brought in this case by the plaintiffs below, on a covenant by the defendant, in plaintiff’s deed to him. The covenant was, that he would use the land only for a specified purpose. The breach assigned is, that he had constructed upon it machinery contrary to his stipulations. The defendant pleaded that he had sold one-half of the land to others, and that they ought to be united in the action. Upon demurrer, this plea was rightfully held'insufficient. Between the plaintiff and the defendant, (the original covenantor,) there is privity of contract. The covenant, as to the defendant, «s personal. Between the assignees of the defendant and the plaintiff there is privity of estate. The covenant of the defendant runs with the land, and the assignees are liable to the plaintiff, but' according to different principles. They and the defendant are not jointly liable to the plaintiff — their rights of defence are different. They are liable in respect of the land with which the covenant runs, and only according to> the truth of the case, their liability may be apportioned. Being purchasers of only a moiety of the land, they are liable to that extent only. Not so with the original covenantor, for by his contract he is liable to the whole extent of the injury sustained. Hare vs. Cator, 2 Cowp. 766. 2 East, 575. 4 Kent, 473, note. Stra. 1221. 3 Burrow, 1271. 9 Cowen, 88. 2 Greenleaf’s Ev. §239. 1 Doug. 182. 1 East, 502. 5 Coke, 17, b. 3 Ibid. 22. 17 Wend. 136. 5 Reps. 24, a. 4 B. & A. 266. I Chitty’s Plead. 107. [2.] This was a plea in abatement, and being demurred' to at the first term, was ruled out. It is complained that such a plea cannot be heard and determined at the first term. ¥e think it can. It is dilatory and goes not to the merits; for that reason it must be filed, and if demurred to, may be,, and regularly ought to be decided at the first term. Let the judgment be affirmed.