The question whether the defendant's covenant ran with the land, or whether he was capable *Page 232 of making a covenant having that effect, was not specifically raised by any exception taken at the trial, or to any finding or refusal to find of the trial court. The court found that Almira S. Coe and the defendant, her husband, made a deed of the lands described in the complaint purporting to convey them in fee simple to Nancy Fisher, and "that said deed contained covenants of seizin, right to convey, against incumbrances, quiet enjoyment, further assurances and warranty, which covenants were made by the defendant and Almira S. Coe jointly." No exception was taken to this finding. As conclusion of law the court found that the covenants were broken, and that the plaintiffs were entitled to recover against the defendant the amount there mentioned. To this conclusion the defendant excepted. And he requested the court to find that "Almira S. Coe and the defendant made, executed and delivered to Nancy Fisher a deed conveying the premises described in the complaint, which deed contained covenants of warranty, seizin and quiet enjoyment." The court so found. This was the only request to find having relation to the character of the defendant's covenant. And the defendant's request that the court find as conclusion of law that the complaint be dismissed was refused, and exception taken. Those were the only exceptions taken by the defendant. It is true the court found that Roberts conveyed the premises to Almira S. Coe, and that she then entered into the occupancy and continued in it until the conveyance to Nancy Fisher, who then went into possession. And it appeared as evidence that the deed made by the defendant and his wife contained the covenant made by them, that the wife was lawfully seized of a good, absolute and indefeasible estate of inheritance in fee simple of the premises, also the usual covenants of quiet enjoyment, further assurances and of warranty. But the court did not specifically find, nor was it requested to find, that the defendant had no interest in the premises at the time of the conveyance, nor was any motion to dismiss the complaint made at the trial on that or any ground. Facts not found, and which the court was not requested to find, are not entitled to consideration in this court for the *Page 233 purpose of reversing the judgment. (Burnap v. National' Bank,96 N.Y. 125.)
The possession of the premises was delivered to and taken by the grantee pursuant to the deed of conveyance in question. This was sufficient estate to carry the covenants of warranty as an incident to the land to the assignee of the grantee, and on his behalf to support an action upon such covenant upon being evicted by title paramount. (Beddoe's Exr. v. Wadsworth, 21 Wend. 120; Fowler v. Poling, 6 Barb. 168; Slater v. Rawson, 6 Metc. 439; Wead v. Larkin, 54 Ill. 489; 5 Am. R. 149.)
But treating as found the fact that the covenant of seizin in the deed was that it was in the defendant's wife, the question arises whether the defendant's covenant of quiet enjoyment, etc., ran with the land. He was a grantor named in the deed, and the covenants were made by him and his wife jointly; and the grantee took by the conveyance an estate in the land. One of the recognized differences between a covenant which is and which is not available to the assigns of a grantee in a deed of conveyance is that the former relates to the estate, is made for its benefit and tends to enhance its value, while the other is collateral to it and does not pass beyond the covenantee. (Shep. Touch. 161, 176.) The former in case of grant in fee does not rest upon privity of estate with the covenantor, but privity, so far as essential for the transmission of the covenant from the covenantee, is with the latter. (Norcross v. James,140 Mass. 188, 189; Norman v. Wells, 17 Wend. 136, 150, 151; Pollock's Law of Contracts [5th ed.] 226; 2 Chitty on Contracts [11th Am. ed.] 1383, 1388; Holmes on Common Law, 404.) And upon the proposition that a covenant intended to benefit the land made to the owner by a stranger to the title may become attached to and go with the land and be available to a subsequent owner of it, the Pakenham Case (Y.B. 42 Edw. III, 3) has frequently been referred to and cited by elementary and judicial writers. There the Prior with the consent of his convent, for himself and his successors, by deed covenanted with the owner that he and his *Page 234 convent would sing, etc., in such owner's chapel on the manor. It was held that this covenant was annexed to and passed with the land of which the chapel was a part. The doctrine of that case has been questioned by Sugden and Washburn, but the view of the former, as represented by his later editions, is that the doctrine of privity of estate is not applicable to covenants entered into by a vendor. (Sugd. on Vend. [14th ed.] c. 15, § 1, pl. 14 et seq.) And it may be observed that the Prior's case has quite generally been cited and its principle stated with apparent approval in England and in this country. (Shep. Touch. 176; Coke Lit. 385a; Bacon Abr., Covenant E.; Spencer's Case, 5 Coke, 16; Smith's Leading Cases, 22, 26; Vyvyan v. Arthur, 1 Barn. C. 410, 415; Norman v. Wells, 17 Wend. 136, 151;Allen v. Culver, 3 Denio, 284, 289, 301; Dickinson v.Hoomes, 8 Gratt. 353, 403; Van Rensselaer v. Read, 26 N.Y. 574; Norcross v. James, 140 Mass. 190; Holme's Com. Law, 395; Hamilton on Cov. 96.)
In Keppell v. Bailey (2 Myl. K. 517), the doctrine of thePrior and Convent case had no necessary application to the question presented and determined. It was there held that a covenant made by the proprietors of an iron-works property to transport material for their works from a certain mine over an adjacent railroad was a personal covenant merely, and did not pass by the sale of the iron-works so as to charge the vendee with the obligation to perform. There was no relation of lessor and lessee between the parties, nor was there any connection between their estates. And to permit the covenant to run with the land and the burden of it to fall upon the vendee of the covenantor, privity of estate, which did not exist between them, was essential.
And such was the case of Hurd v. Curtis (19 Pick. 459), where Mr. Justice WILDE, in delivering the opinion of the court, said: "There is no exception to the rule that no covenant will run with the land so as to bind the assignee to perform it unless there were a privity of estate between the covenantor and covenantee." Such was also the case of Cole v. Hughes (54 N.Y. 444). There is no opportunity to doubt *Page 235 the essentiality of privity of estate between the original parties to a covenant to carry the burden of covenantor to his assignee. That was the principle upon which Bally v. Wells (3 Wilson, 25) was decided, and where Spencer's case was thoroughly considered and its doctrine applied. Nor can the soundness of the principle upon which Webb v. Russell (3 Durn. E. 393) was determined be questioned. There the action was upon the covenant in a lease against the assignee of the lessee to recover rent and for failure to repair. The demurrer to the declaration was sustained, because it appeared by it that the reversion was not in the plaintiff. The privity of estate requisite to support an action against the assignee of the lessee is only between the latter and the owner of the reversion. And the covenant in that lease was effectual to support the later action by the party having the reversion in Stokes v. Russell (Id. 678); Dolph v. White (12 N.Y. 296). Those cases do not necessarily have any application to the question in the present one. They had relation to covenants as burdens, which to run with the land must have the support of privity of estate between the covenanting parties, and generally rest upon the relation of landlord and tenant. There may occasionally have been some confusion given by dicta indicating that contracts which operate to create easements run with the land as burdens. This is not strictly correct. The contracts so operating are executed ones and create vested rights. A grant is not a covenant, and a covenant that runs with land is executory. The rule that covenants run with the land as a burden was founded upon or deduced from the feudal law, where the relation of landlord and tenant existed. That rule is not applicable to conveyances in fee of the entire estate of the grantor. The covenants of warranty are purely a matter of contract between the parties to the deed of conveyance containing them, and being beneficial in their relation to the estate, which the deed purports to convey, they become annexed to it when it passes from the covenantee to his assignee; and through the medium of the conveyance to the latter, become available to him, in case of breach, while he *Page 236 retains the relation of grantee to the land. (Bingham Real Estate, 429.) This is not founded upon privity of estate with the covenantor, and it rests upon privity of contract for the reason only that the conveyance by the covenantee operates as an assignment by him of the covenants of warranty taken by the latter from his covenantor. But the doctrine that such covenants pass with the estate from the covenantee is an exception to the general rule requiring privity of estate between covenantor and covenantee, and evidently was adopted upon commercial considerations deemed advantageous to the transmission of estates in fee, by giving the grantee the benefit of covenants of quiet enjoyment, contained in any of the conveyances in the line through which the grant to him may be traced. (Bingham Actions and Defenses, 401, 405, 406.) This character of such a covenant is recognized by the learned justice in Hurd v. Curtis. He says: "Covenants of title may be considered as an exception to the general rule, and the reason for the exception is very strong, for nothing can be more manifestly just than the party who loses his land by a defect of title should have the benefit of the covenants, which were intended to secure an indemnity for the loss. Such a covenant is dependent on the grant, is annexed to it, as part and parcel of the contract, and runs with the land in favor of the assigns of the grantee or covenantee." Then he proceeds to state, substantially, as before quoted, that to impose a burden upon the assignee the rule that there must be privity of estate between covenantor and covenantee is without exception. And the same distinction was observed by Judge EARL inCole v. Hughes, in his statement there made, that "there is a wide difference between the transfer of the burden of a covenant running with the land, and of the benefit of the covenant. The benefit will pass with the land to which it is incident, but the burden or liability will be confined to the original covenantor, unless the relation of privity of estate or tenure exists or is created between the covenantor and covenantee at the time the covenant is made." This is undoubtedly the rule upon the subject. And since the statute of quia *Page 237 emptores, where it was applicable, and in this state after the act of 1787 (Chap. 36, 1 R.L. 70), concerning tenures, of which the provisions of sections 3 and 4 of 2 Revised Statutes, 718, are a substitute, a conveyance in fee of the entire estate of the grantor has not permitted a covenant between him and his grantee to run with the land as a burden to charge the assigns of the latter. The fact that covenants of warranty of the grantor in a deed of such a conveyance pass to the assigns of the grantee is an exception to the general rule requiring privity of estate with the covenantor. And this is because they are treated as attached to the land as a benefit and pass with it as an incident. ThePrior's case has repeatedly received such judicial sanction in this state as to require some reason, which does not now occur to me, why, within its doctrine, a covenant, independent of the grant, made by a stranger to the title, to the owner of the land and intended for the benefit of his estate, and beneficial to it, may not as such become attached to and pass with it to a subsequent owner. This would not embrace all covenants beneficial to the estate, but only such as are solely for its benefit, and thus for the benefit of the owner alone in his relation to the lands. I do not pursue the consideration of that case, or seek by any reasoning to sustain or qualify it, because its authority is not deemed essential to the support of the view taken that the defendant's covenant in the present case passed with the estate in the land to the assigns of the covenantee. He was not a stranger to the terms of the grant, but he was one of the parties named as grantors in the deed by which the conveyance of the estate granted was made, and his covenants of warranty and further assurance were made jointly with his wife. His relation, so far as related to those covenants to the grantee, was no different, in any respect or for any purpose, than those of the wife, and they went with the estate to the assigns of the grantee. (King v. Jones, 5 Taunton, 418; Dickinson v.Hoomes, 8 Gratt. 353; Colby v. Osgood, 29 Barb. 339.) This, as before remarked, is not dependent upon privity of estate, for none exists between the covenantor and covenantee in a *Page 238 conveyance in fee in the legal sense of the term, nor between the former and the assigns of the latter, but the benefits of the covenants of warranty, taken by the grantee in the instrument by which the grant is made, pass to his assigns as an incident to the estate. And in Norman v. Wells (17 Wend. 149, 150), Mr. Justice COWEN gives the reason why such covenants are available to an assignee in the remark: "Why do charters and covenants for assurance and warranty and the like follow the land? Because they make part of its value." (2 Wn. R.P. [4th ed.] 286, 287.) And the learned justice in the case last cited approvingly refers to the fact that the court, in Vyvyan v. Arthur, proceeded upon the Prior's case (p. 151), and in commenting upon Keppell v.Bailey he does not adopt the dictum of the lord chancellor there in respect to that case. (Pp. 153-155.) It may be observed that what is usually stated in the books on the subject of privity of estate, has reference to the general rule applicable to the relation, arising out of leases between landlord and tenant, or one of them, and the assigns of the other, or between the assigns of both of them.
The right of action upon covenants in leases is dependent upon privity of estate existing between the owner of the reversion and the lessee or his assigns; and the covenants of the lessee are for the benefit of the reversion, and go with it. They pass to his assignee as a burden. Notwithstanding that situation, it was held in Allen v. Culver (3 Denio, 284) that the grantee of the lessor of the reversion could maintain an action against the person who, by a separate instrument made at the same time as the lease, had become surety of the lessee for the payment of the rent. This could rest on the ground only that the covenant of the surety was, in practical effect, inseparable in point of liability with that of the lessee. There privity of estate was not only requisite, but the covenant of the surety was not united in the same instrument with that of the lessee, and by which the demise to him was made. That case, therefore, goes further than is necessary for the support of the liability of the defendant upon his covenants to the assignee of the covenantee. In the view taken of the case at *Page 239 bar, that of Nesbit v. Nesbit, (1 Taylor [N.C.] 82), has no essential bearing upon the question here presented. There the parties, who made the deed poll, neither had nor pretended to have any estate in the land, but it appeared by it that they received the consideration in behalf of their daughter, who had the title, and on her behalf bargained and sold the premises, and covenanted that when she arrived at age she would execute further assurance, etc., and if she nulified the sale they would refund to the purchaser double the amount of the purchase-money paid by him, and pay him the damages sustained. She afterwards married, and her husband asserted the title of his wife and entered into possession of the premises which had been conveyed by such purchaser to another, who brought action upon the covenant against the executors of the covenantor. It was finally held that the action could not be supported, for the reason that it appeared upon the face of the declaration that the defendant's testator neither had nor pretended to have any title, and in support of the determination was cited Noke v. Awder (1 Croke's Eliz. 373), upon which no comment is needed.
In the Nesbit case it appeared by the deed that no estate could pass from the grantors to the grantee, which was essential to carry the covenant, and without which there was nothing to which it could be attached as an incident, or to furnish a medium of transmission of the covenant to the assignee. In the present case there was an estate in the land conveyed, and with it the covenants of warranty contained in the deed passed to the assigns of the covenantee. Those of the defendant, made jointly with the wife, no less than hers, were beneficial to the grant and to the estate granted, became an incident to the land and passed with the estate from the covenantee.
The further question, and the one mainly considered in the court below, is whether the defendant's covenant was available to the plaintiffs. They became mortgagees of Nancy Fisher while she occupied the premises under the grant from the defendant and his wife. Mrs. Fisher afterwards conveyed to Fuller, and he to Clara B. Leavitt, all of whom respectively *Page 240 entered into possession under the several conveyances. While the action of ejectment against Leavitt, which resulted in her eviction by title paramount, was pending, the plaintiffs commenced their action to foreclose the mortgage made by Fisher, in which decree was obtained, pursuant to which the land was sold and purchased by the plaintiffs. They never acquired the possession, and, therefore, were not evicted, but before they obtained the deed of the sale upon the decree, the eviction of Mrs. Leavitt had been accomplished. For those reasons it is insisted, on the part of the defendant, that the plaintiffs took no right of action upon the covenant of warranty against the covenantor. This would be so if their rights as purchasers had relation in time to that when the sheriff's deed was made to them, because then there had been a breach of the covenant, and it had become a mere chose in action, and a conveyance by Leavitt then made would have been ineffectual to afford any remedy upon it by her grantee. But that was not the situation when the mortgage was made. The foreclosure and sale, in practical effect, eliminated the defeasance from the mortgage. The plaintiffs, as purchasers, took the estate which the mortgagor had at the time the mortgage was given, and to that time, and the situation in that respect as it then was, their rights derived from the sale had relation. (Rector, etc., of Christ Church v. Mack,93 N.Y. 488; Lewis v. Cook, 13 Iredell [Law], 193; White v.Whitney, 3 Metc. 81.)
Mrs. Leavitt was a party defendant in the foreclosure action, and whatever estate or right, by way of equity of redemption, she had was cut off and barred and taken by the plaintiffs, who, as purchasers, became assignees of the interest she had acquired by her purchase of the premises. (Howell v. Leavitt, 90 N.Y. 238. ) But for the mortgage and its foreclosure, her right as incident to the estate conveyed to her was, upon eviction, to seek indemnity by action upon any covenant running with the land to her. And this right of Mrs. Leavitt, annexed to the land as incident to the estate she had purchased, was, as such, taken by the purchasers upon the mortgage foreclosure, and they alone could maintain an action upon the covenant. *Page 241 For the reasons already given, this did not embrace the covenants of her immediate grantor. The consideration of the mortgage was $15,000. That, and not the amount for which the judicial sale was made, was properly made basis of damages and recovery by the plaintiffs. (Greenvault v. Davis, 4 Hill, 643.)
A different question in this respect may have been presented if a person other than the mortgagees had purchased the property on the foreclosure sale.
The court found that to be the actual amount loaned, and the payment of which the mortgage was made to secure was that sum.
The judgment should be affirmed.
All concur with FOLLETT, Ch. J., except BRADLEY, HAIGHT and BROWN, JJ., dissenting.
Judgment reversed.