Lydick v. B. & O. R. R.

Green, PRESIDENT, announced the opinion of the Court: The only question presented by the record in this case is: Was the declaration in this case fatally defective on general demurrer? In considering this question we must determine, what was the character of the contract made by Edward Hogan with the defendant, that in consideration of his granting it a right of way through his farm it would construct and maintain forever for the use and benefit of a mill on his farm and for its present and future owners a railroad switch connecting its road with the door of themill. We will first consider what would have been the character of this contract, had it been instead of a verbal a written contract under seal. • Would it have been a real covenant or merely a personal covenant; that is, would it have been a covenant [running with the lánd, that is, one which enured to the benefit of all subsequent owners of the mill, and for the breach of which any subsequent owner might bring an action of covenant against the defendant, or was it a mere personal covenant, for the breach of which no one could ever sue except Edward Hogan ? If this contract was personal and did not enure to the benefit either in law or equity of any grantee of this mill, it is obvious, that the case stated in the declaration is one on which the plaintiff can base no suit. The counsel for the defendant in error insist, that it . . , ’ is necessary to the creation and existence of a real covenant, that there should be a privity of estate between the parties. 4 Kent Com. 11th ed. pp. 472, 473. This view _of Chancellor Kent is by no means undisputed. Highly respectable authorities hold, that a stranger may covenant with a, land-owner in such a manner as to at437 taeh the benefit of the covenant to the land and have it run with it in favor of any one who may become the owner thereof. This can only be done however according to these authorities, when the covenant is to do some act for the benefit of the estate and upon the land itself. 'Washburne in his treatise on real property, book 2, p_ 15, vol. 2, p. 262 of 3d ed. says, that these views are advocated by the editor of the American edition of Smith’s Leading Cases, 1 Smith’s Lead. Cas. 5th Am. ed. 124, 140 et seq; that they are favored by the English commissioners upon real property; 3d Rep. of Eng. Com. 52, and is assumed to be law, per Jewett, Judge, in Allen v. Calver, 3 Denio 284, 301, and by Judge Moncure in Dickinson v. Hoomes’s adm’r et al., 8 Gratt. 353, 403. To sustain these views reference is also made to Pakenham’s Case, year book 42 Edward III, 3 pt. 14, fully stated in 2 Sug. Vend. (6th Am. from 10 Eng. ed.) 473, which case is commonly known as the Prior and Convent Case, and also to Coke’s opinion, Co. Lit. 384 b. See also Rawle Cov. 335, and Keppell v. Bailey, 2 Myl. & K. 517, 539. But Washburn himself agrees with Chancellor Kent, that it requires a privity of estate to give one man a right to sue another, where there is no privity of contract between them. It is not necessary in this case to determine, which of the views is sound. For in the ease before us the requisite privity of estate, exists according to the views of Washburn, who holds such privity to be necessary. He says: - (Wash, oh Real ProperLy, vol. 2, pp. 262, 263, 3d ed.) “ Where one, who makes a covenant with another in respect to land, neither parts with nor receives any title or interest in the land at the same time with and as a part of making the covenant, it is at best a mere personal one, which neither binds his assignee, nor enures to the benefit of the assignee of the covenantee, so as to enable the latter to maintain an action in his own name. It is not easy to define in a few words what is meant in all cases, by the expression 'privity of estate.’ But it is — 438 — apprehended, that in the matter of a covenant running with land the language of Wilde, Judge, in Hurd v. Curtis, furnishes a sufficient clue. There the respective parties owning independent estates entered into certain covenants with each other as to kinds of wheels they should respectively use in their several mills. The grantee of one of these estates ivas sued by the cove-nantee, who had retained his estate, for breaking tbe covenant in the use of wheels in the granted estate. Wilde, Judge, said: ‘We are of opinion, that this action cannot be maintained, as there was no privity of estate between the contracting parties. Their estates were several, and there was no grant of any interest in the real estate of either party, to which the covenant could be annexed/ (19 Pick. 459, 464). So where one of two adjacent owners of land covenanted with the other, that if he would erect a par ty-wall between their estates, the former would pay the latter for one half of it whenever he should use it, it was held to be a personal covenant, and not to run with the land, so as to bind the purchaser of the covenantor’s land who should erect a building against the party-wall. (Block v. Isham, 16 Am. Law Reg. 8; Weld v. Nichols, 17 Pick. 543.) But it is not necessary to create the relation of feudal tenure between the covenantor and covenantee, in order that a covenant should run with the land (Van Renssalaer v. Read, 26 N. Y. 578). And a covenant may run with a rent, as with the land itself. Where one granted land to a railroad company for the purposes of their road, and covenanted for himself and his assigns to fence it and to keep it fenced, it was held to be a covenant which ran with the land and bound his grantee. Demarest v. Willard, 8 Cow. 206; Willard v. Tillman, 2 Hill 274. * * * * * j>uf jf one simply covenants with a stranger to build a house or repair a mill-dam, it is not easy to see how it can be other than a personal covenant, or howr it can make any difference in its character in — 439 — that respect, whether the act is to be clone upon the cov-enantee’s land or that of a stranger.” syllabus 5. It is unnecessary for us to determine, whether this would in the case put by Washburn make a difference, as some eminent lawyers insist; for in the case before us the defendant was not a stranger, but as apart of the contract claimed to run with the land and by this contract received an interest in the laud, a right of way over it for its road, which obviously according to the views of Mr. Washburn made a privity of estate. Mr. Washburn on page 263, vol. II of this work says: “ It is conceived in accordance with this idea that such covenants and such only, run with land as concern the land itself, in whosesoever hands i^may be, and become united with and form part of, the consideration for which the land or some interest in it is parted with, between the covenantor and covenantee.” This I apprehend is true, when the covenant is on the part of the grantor; but if the covenant is on the of the grantee of an interest in the land or a right of way over it, or an incorporeal hereditament issuing out of it and the covenant concerns the land in whosesoever hands it may be, and becomes united with it, so that whenever sold it must enter into the consideration and enhance the price, such covenant is real and runs with the land. In such case there is privity of estate between the parties. Thus it was held in Savage v. Mason, 3 Cush. 500, that a covenant in a deed of partition between tenants in common, which provided that party walls might be erected on the dividing lines between their shares, and each would pay one half of the expense of every such wall before using it, was for the benefit of the land, and would pass as such, both as to the right conferred and the obligation imposed, to all persons claiming by descent or assignment under the original parties to the deed the court says at page 505 : “ The covenant can by no means be considered as merely personal or collateral and detached from the — 440 — lan<T There was a privily of estate between the con-parties in the land to which the covenant was annexed. The covenant is in terms between the. parties and their respective heirs and assignees; it has direct and immediate reference to the'land; it is beneficial to the owner as owner and to no other person ; it is in truth inherent in and attached to the lands, and necessarily goes with the land into the hands of the heirs or assignee.” This case in connection with the case of Block v. Isham, 16 Am. L. Reg. 8, referred to in 2 Wash. 263 above quoted, illustrates well what is meant by privity of estate. For according to Washburn, “if one of two adjacent owners of land covenanted with the other, if he would erect a party wall, the former would pay the latter one half of it whenever he should use it, it was held to be a personal covenant, and not to run with-the land, so as to bind the purchaser of the covenantor’s land, who should erect a building against the party wall.” It would be otherwise, we have seen, if the parties had been tenants in common and such covenant was made in the partition, for then the requisite privity of estate would exist between the parties. See also Wild v. Nichols, 17 Pick. 543. So a covenant by the grantee of one parcel of land for the benefit of other adjacent land of the grantor will pass to a subsequent assignee of the latter tract and may be enforced by him against the original covenantor. It is a covenant running with the land. See Woodruff v. The Trenton Water Power Co., 2 Stock. Ch. 489. If the covenant had been made by the grantee of a right of way as in the case before us, and was for the benefit of an adjacent mill owned by the grantor, it is obvious such a covenant would on the authority of this case run with the land; for a covenant will run with an incorporeal hereditament such as rent or a right of way as with the land itself. See Bailey v. Wells, 3 Wilson 26; Morse v. Aldridge, 19 Pick. 449. This is admitted by Washburn. See 2 Washburn on Real Property 263. So in Skarp v. Waterhouse, 7 El. & Bl. 816; (Eng. — 441 — Com. L. R. vol. 90, p. 815.) Where the owners of a mill by a deed, wherein they were granted the privilege of draining refuse on the land of another, covenanted to supply pure water for the consumption of the horses, &c., of the owners for the time being of this land, it was held, that this was a covenant running with the land. Syllabuse. In Murray v. Jayne, 8 Barb. 613, certain commissioners were authorized by a statute to drain certain drowned lands in Orange county, and to tax the owners of such drowned lands to raise the funds necessary. They were also authorized to procure a right of way for a canal through any land for this purpose on compensating the owner; the amount to be paid the owner for such right of way to be agreed upon by the owner and the commissioners to be ascertained in a manner prescribed by the law. The commissioners opened a canal thi’ough the land of a person, which land covered in part these drowned lands and was liable to taxation. The owner authorized the commissioners to open the canal, it being agreed, that in consideration thereof they would not tax his land, till it was ascertained what was a just compensation for the right of way for the canal, and that these taxes should be deducted from the amount of the land-owner’s compensation for the right of way of the canal. The court held, that had this agreement been under seal, it would have been a covenant running with the land. This differs but little from the case before us on this point. The agreement by the railroad company in consideration of a right of way through the farm of Edward Hogan to make a switch to his mill-door on the farm establishes a privity of estate between the parties to the same extent, that the agreement in this New York case established such privity of estate; and the character of the covenant in the case before us was more obviously for the benefit of any owner of the mill, than was the character of the covenant for the benefit of the land in the New York case. We are therefore of the opinion, — 442 — that if this agreement between Edward Hogan and the defendant had been under seal, it would have been a covenant running with the land. Syllabus 1. Syllabus 2. By the common law no ahose in action could be assigned ; and this general rule applied to parol contracts as well as to covenants. To this rule there were two exceptions. Among parol contracts a bill of exchange could be assigned or transferred. But to constitute a bill of exchange two things were essential, first, that it should not be under seal, and' secondly, that it should be an unconditional order for the payment of money and nothing else. So there was one species of contract under seal, which at common law could be assigned or transferred, that is, a real covenant. It too was required to have certain requisites, which were absolutely necessary to its being a real covenant. It must affect land, that is, tend to increase or diminish its value in the hands of its owner, and it must be under seal, as its very name imparts. A covenant real is assigned or transferred by the transfer of the legal title of the land to which it is attached. See Randolph’s adm’r v. Kinney, &c., 3 Rand. 396. No transfer of the equitable title could have the effect iñ a court of law of transferring a covenant real to the equitable owner. See Beardsley v. Knight, 4 Vt. 471; VanCourt v. Moore, 26 Mo. 92. Of course a parol contract cannot be a covenant real, and therefore it can not run with the land, and can not therefore be sued on in a court of law by the grantee of the land which it affects. See Murray v. Jayne, 8 Barb. 612; Beckford v. Parrins, 5 C. B. 920; Parish v. Whitney, 3 Gray 576. But wherever the nature of the agreement is such, that it would have passed with the land, had it been sealed, subsequent purchasers of the estate to which it relates, who are substantially and beneficially interested in its performance, may enforce it in equity. Murray v. Jayne, 8 Barb. 612. This is done upon the principle, upon which courts of equity recognize and. enforce the rights — 443 — of the assignee of a parol contract, though it be not a bill of exchange, which alone was transferrible at law. And so a court of equity would recognize the equitable owner of lands to be entitled to the benefit of a covenant real running with the land or to a parol contract, which, if sealed, would amount to a covenant real. Syllabus 7. SylIabua 3' In the case of Murray v. Jayne, 8 Barb. 612, the facts of which we have heretofore stated, the court being of opinion, that the parol contract of the commissioners not to tax plaintiff’s land in consideration of the right of way granted by the grantor of the plaintiff to these commissioners, if it had been put in the form of a covenant, would have been a covenant real running with the land, and the grantee of the land was therefore entitled to the benefit of it in a court of equity, though not at law. The court therefore specifically enforced this verbal contract at the instance, not of the party with whom the contract was made, but at the instance of the grantee of the land for whose benefit this verbal contract was made. Upon the authority of this case it is clear, that a verbal agreement, made by a railroad company to build and maintain a switch to a mill on a tract of land in consideration of a right of way for the road through such tract, would be specifically enforced in a court of equity at the instance of a subsequent owner of the mill, who had an equitable or legal title derived, from the original promisee. It is also clear, that no action would lie on such verbal agreement by such subsequent owner of the land. As a bill of exchange or other negotiable paper in the hands of an assignee is free from the equities, to which it was liable before assignment, so covenants running with land, when in the hands of a grantee of the land, are free from the equities which may have existed against the original covenantor. Thus in Saydum v. Jones, 10 Wend. 180, an agreement between the grantor and grantee, that the grantee should be liable for the payment of a mortgage, which the grantor had executed, — 444 — was held inadmissible in an action brought against the 'the covenantor on his covenant of warranty by a subsequent grantee of the land, who had been evicted. So in a like action the covenantor can not reduce his liability by showing that the consideration paid for the land was less than that expressed in the deed, though this might be done, if the suit on the warranty had been brought by the original grantee of the land, (see Greenvants v. Davis, 4 Hill 643); but while such is the rule with reference to the equities .between the original cove-nantor and covenantee, yet the effect of an actual release by a covenantee would be to bar a common law action brought by his grantee, who acquired the land after such release. See Littlefield v. Getchell, 32 Minn. 392. It is, however, questionable whether in this country under our registry acts a purchaser of the land could be deprived of any right, which appears on the face of his title papers, by a release not recorded and not made known to him. See Field v. Snell, 4 Cush. 50. Be this as it may, it would seem that if there was no original covenant running with the land, but only such a verbal contract as would, had it been put in the form of a covenant, been a covenant running with the land, though a court of equity would enforce specifically such a parol agreement, at the instance of any future owner of the land, yet as his right in such a case would be a mere equity, it would be subject to a superior equity prior in time, which existed between the original parties to the agreement, and if they had set it aside by contract made before the land was conveyed to the purchaser, he could not enforce it, and if modified by the original parties by contract before the conveyance to the purchaser, he could in a court of equity only enforce it in its modified form. These conclusions follow from the subsequent purchaser having only an equitable and not a legal right, when the original contract affecting the land was a mere verbal contract. Syllabus 8. Having reviewed most of the law bearing on points — 445 — presented in this case we will now consider the direct question involved in the'ease, that is: Ought the declaration in this ease to be considered as presenting a case, on which the plaintiff has a right to recover ? The declaration is obviously very inartificially drawn. A very large portion of it is surplusage. Throughout it there is set forth at considerable length that, which is merely evidence, in violation of the rule, that whatever is alleged in pleading must be alleged with certainty. See Stephens on pleadings, Tyler’s ed. of 1872, from 2d London ed., p. 310. So there is stated unnecessarily matter, of which the court takes notice ex officio. Idem 312. The rule, that surplusage is to be avoided, is violated in a great variety of ways in this declaration. It sets out uselessly the provision of the contract between Edward Hogan and the defendant in reference to the two cattle-stops, as the violation of this part of the contract is not complained of. See Idem 364. It sets out uselessly the reasons assigned by the defendant, why it was unwilling to maintain the switch according to its contract, and various conversations between the plaintiff and defendant’s agents. It also sets forth uselessly the names of the various agents of the defendant, who made certain contracts and their authority to make such contracts instead of stating the contracts according to their legal effect as made by the defendant. It is true, that surplusage is and never was a subject of demurrer according to the maxim utile per inutile non vitiatur. Idem p. 365. But to combine with the requisite certainty and precision the greatest possible brevity is now justly considered as the perfection of pleading. The evils, which result from a violation of the rule, that surplusage is to be avoided, are well set forth in the fourth volume of Minor’s Institutes, pp. 363, 365. The rule, that pleadings must not be ambiguous or doubtful in meaning, is repeatedly violated in this declaration, thus in one part it is alleged, that “said Hogan (meaning I presume J. E. Hogan) transferred his in — 446 — terest in said contract to S. B. Purdv.” The only contract previously spoken of. Was the contract of the defendant to make and maintain the switch, yet-I presume that what it was intended to assert was, that J. E. Hogan transferred his interest in the land to S. B. Purdy. So though there are two Hogans and two Purdys named in the declaration, yet in setting out the very contract sued on, it is indefinitely stated to have been made by the Messrs. Purdy and Hogan. Such defects as these may sometimes justify a general demurrer ; and the first of these ambiguties' which I have pointed out would probably vitiate this declaration, if the case probably intended to be stated would sustain the plaintiff’s action. The declaration also violates the rule against duplicity. See Stephens’s Pleadings, p. 242. The declaration sets out in one count two several causes of action, one on the contract made by the defendant with Edward Hogan, and the other, on the contract made by the defendant with S. B. Purdy and J. E. Hogan. This defect, it is true, could not now by reason of our statute be taken advantage of by demurrer, but so objectionable is it, that Minor in his Institutes regrets the passage of such statutes. See Minor’s Institutes, vol. 4, p. 939. Other defects might be pointed out in this declaration, but as we desire to dispose of the probable case intended to be stated by the plaintiff, and thus terminate the litigation, I will set forth what I presume was the plaintiff’s case, as intended to be stated in the declaration, and consider, whether as so stated it be a case in which he is entitled to recover. In 1848 one, Edward Hogan, was seized in fee simple of a tract of land of four hundred acres in Marshall county, on which was a flour-mill, when lie made a verbal contract with the defendant, whereby in consideration of Edward Hogan, giving it a right of way for its road through this farm it agreed with him to construct and maintain forever for the use and benefit of suid mill for the ose of its existing and future owners a — 447 — railroad switch on said land from said railroad to the door of the mill for the shipment of freight to and from this mill over said railroad. ' Said Edward Hogan on July 13, 1859, conveyed this tract of land to S. B. Purdy, who by a verbal contract for a valuable consideration paid to him, agreed to sell the said mill and four acres of land attached, including the ground on which said switch was to be built, to L. B. Purdy and J. E. Hogan and put them in possession thereof. They having an equitable title to this mill and four acres of land in 1869 made a parol agreement with the defendant, whereby it agreed in lieu of and as a substitute for said switch to stop their trains going each way on two specific days of each week, to receive for shipment and deliver freight at said mill. The consideration for’this agreement was a promise on the part of the said L. B. Purdy and J. E. Hdgan to dispense with the building and maintaining of said switch by the defendant for so long a time as they, L. B. Purdy and J. E. Hogan, please, and no longer. Afterwards J. E. Hogan sold for a valuable consideration his undivided moiety of the equitable fee simple in this land to his co-tenant, L. B. Purdy, and in 1872 he sold the equitable fee simple in said mill and four acres to the plaintiff. In-1875 the widow and heirs at law of S. B. Purdy, deceased, who then held the legal title of said mill and four acres, conveyed it to the plaintiff. The plaintiff, after he became the fee simple owner of this mill and four acres, assented to the contract, which had been made by the defendant with L. B. Purdy and J. E. Hogan as a temporary arrangement in lieu of the switch and to continue only during his pleasure, and the defendant renewed its promise made to them. But the defendant refused to build or maintain this switch, or to stop its trains at said mill to take on and put off freight, as required by the last named contract. Therefore the suit was brought. We have stated the whole substance of this declaration — 448 — “ more detail, than it would have been necessary to state it, if had been formally and correctly pleaded; and yet it has occupied only about one fourth of the space taken by the declaration actually filed. It is obvious, from what we have before said, that, so far as the plaintiff’s claim is based on the original verbal contract made by the defendant with Edward Hogan, he cannot recover in this action, as this verbal contract could not at law run with the land. But it is also clear from the law as above stated, that the plaintiff would have a right to ask a court of equity to specifically enforce this verbal contract, because if it had been put in the form of a covenant, it would have been a covenant real running with the mill, and as the owner of it deriving his title from the original covenantee he would have been entitled to the benefit of such covenant. Of course his right to ask for the specific execution of this verbal contract made by the defendant to maintain this switch would have been lost, if he had made a valid verbal contract with the defendant, whereby it was bound in lieu of the maintenance of this switch to stop its trains twice a week at the plaintiff’s mill to take on and put off freight. But if such contract had been made, the plaintiff could successfully maintain his action of assumpsit at lawfor the breach of such contract. And if such a valid verbal contract had been made by L. B. Purdy and J. E. Hogan, while they were the equitable owners of this mill, the plaintiff could have had such valid verbal contract by the defendant to stop its trains twice a week at his mill specifically enforced; but he could not have brought an action of assumpsit upon such contract, because it was not made with him. It was however such a contract, that, if it had been put in the form of a covenant, it would have run with the land, and therefore on the principles which we have stated he could have had it specifically enforced. And as we have seen, that a previous owner of the land had a right to modify the original verbal contract, and this — 449 — modification would be binding on the plaintiff, whether he assented to it or not, and being binding on him and on the defendant, his assenting to it-afterwards would be no consideration, upon which the defendant could be bound by its promise to him, so that it cqnld be sued thereon at law, though it might have been enforced to perform this promise made to the previous owners, if made on a valuable consideration. The plaintiff could not therefore recover in an action of assumpsit on the verbal promise of the defendant made to the previous owners of this mill, L. B. Purdy and J. E. Hogan, even though it had been a valid promise sustained by a valuable consideration, nor on the renewal of such promise made to the plaintiff himself. He could only recover on a promise made to himself by the defendant on a valuable consideration. Had the defendant promised the plaintiff to stop its trains twice a week at his mill to carry off or deliver freight in lieu of the building and mainteinance of the switch, the plaintiff could have recovered in as-sumpsit. For the surrender by the plaintiff of his right to .compel in equity the defendant to build and maintain such switch would have been a valuable consideration, which would sustain the contract. It is well settled, that the compromise of even doubtful rights, whether legal or equitable, and their surrender would be a valuable consideration, which will sustain a promise, and of course the compromise of a valid claim and its surrender would be a valuable consideration, though the surrender of a claim which, was-clearly wrong would not be (according to some of the authorities at least), but perhaps even the surrender of a claim clearly wrong might be a valuable consideration, if such claim was bona /idebelieved by the plaintiff to be a valid claim. See Longridge v. Dorville, 5 B. & A. 117; Kerr v. Lucas, 1 Allen 280; Moon & McClun v. Fitzwater, 2 Rand. 442; O’Keson v. Barclay, 2 Pen. & Watts 531; Allen v. Backhous, 3 M. & W. 652; Stapleton v. Stapleton, 1 Atkins 10; Morey v. Newfane, 8 Barb. 645; Ed — 450 — wards v. Burgh, 11 M. & W. 641; Jarvis v. Sutton, 3 Porter 292; Wilbur v. Crane, 13 Pick. 289; Long et al. v. Towl, 12 Md. 550. Syllabus 9. But if the promise of the defendant was such as is stated in this declaration, if it had been made first and directly to the plaintiff instead of being merely renewed, it would have been invalid and could not have sustained an action of assumpsit, because there was no consideration to sustain such promise. The promise made as stated in the declaration is, that the defendant would stop 'its train twice a week at the mill in consideration of the other side not insisting on the building and maintaining by the defendant of the switch at that moment; but it was expressly understood, that there was no abandonment by the other party of its right to demand the building and maintaining of this switch, whenever they pleased to make the demand. This promise is based on no consideration and is therefore nudum pac-tum. The plaintiff has neither compromised or surrendered any right, nor has he suspended any right except momentarily. He has by such a contract in no possible manner prejudiced himself or benefitted the defendant, It is like the case when A. in consideration that B. would make to him an estate at will promises. This is no valuable consideration, for that he may presently after the estate made determine it. See 1 Viner’s Abr. 309; Richardson v. Mellish, 2 Bing. 229, (9 Eng. Com. L. R. 398.) The judgment of the circuit court of Marshall, of July 3d, 1878, must be set aside, reversed and annulled, and also the verdict of the jury in the circuit court; and the order of the circuit court made August 8, 1877, reversing and annulling the judgmentofthe county couit of Marshall, must be affirmed. And as.said order gave to the plaintiff a right to amend his declaration, this case is remanded to the circuit court, with instruction to sustain the demurrer to the plaintiffs ■ declaration, and dismiss his suit, unless within a reasonable time he files — 451 — an amended declaration, and with instructions to proceed with this case according to the principles laid down in this opinion, and further according to law; and it is adjudged that the plaintiff in error recover of the defendant his costs expended in this Court. The other Judges Concurred. Judgment Affirmed. Cause Remanded.