Glenn v. Canby

Cochran, J., delivered the opinion of this Court. The demurrer in this case presents the question whether a covenant of a mortgagor, for himself, his representatives, and assigns, to pay a mortgage debt, binds, the assignee of’ the mortgaged property; or in other words, whether by force of the term assigns, such a covenant runs with the-land. The mortgage exhibited here, shows that the debt secured was a loan made to enable the mortgagor to improve the-property described in the mortgage ; it also contains a clause declaring that the covenant to pay the debt, with others, relating to insurance and taxes, should run with the land ; and it was insisted, on these grounds, that the-covenant in question, should be held to bind the appellee, to whom the property was subsequently assigned by the-mortgagor. We have concluded, however, that these considerations have no immediate bearing on the .point to be-decided. The legal operation and effect of the covenant,, in that particular, must be determined by its subject matter, and not by the terms in which it is expressed. The-established doctrine is, that a covenant to run with the land must extend to the land, so that the thing required to-be done will affect the quality, value, or mode of enjoying the estate conveyed, and thus constitute a condition-annexed, or appurtenant to it; there must also be a privity of estate between the contracting parties, and the covenant must be consistent with the estate to which it adheres, and-of such a character that the estate will not be defeated or changed by a performance of it. If, however, on the other hand, the covenant does not extend to, nor affect the quality, value or mode of enjoying the land conveyed, and is131 merely collateral to it, or is of such a character that a performance of it will defeat the estate of the party claiming the performance, then it does not run with the land, nor hind the assignee of the covenantor, though he he expressly included by the general term assigns. Spencer vs. Clark, 1 Smith’s Lead. Ca. 115, 2 Sug. on Vend., 178. Platt on Cov., 3 Law Lib., 205, 215, 3 Term, R., 393, 8 East, 487, 10 East, 130. (Decided March 2nd, 1866.) Tested by these general principles, this is clearly a personal, and not a real covenant. It is for the payment of a debt of the mortgagor — a liability, personal in its nature, that neither relates to, nor affects the quality, condition or value of the land, and the performance of it would at once divest the covenantees of their interest in it. The fact that the debt was contracted for the purpose of improving the property, does not enlarge the operation, nor change the character of the covenant, and as its performance will not affect the land, we conclude that the appellee is not hound by it, and that the demurrer was properly sustained. Judgment affirmed.