By the Court.
Daly, J.Mrs. Drake, by the agree*133ment which she entered into with the plaintiff, under seal, granted to him the use of six inches of the lot number 120 Water street, for the purpose of erecting a party wall, and covenanted, for herself, her heirs and assigns, that whenever she should erect a new building on her lot, she would pay to the plaintiff, his heirs or assigns, one half part of the value of such portion of the party wall as she might find it necessary to use for such new building.
This was a grant of an easement. It was an incorporeal hereditament, and the covenant connected with it bound and was a charge upon the land; (Weyman's Executors v. Ringgold, 2 Bradford, 55; Breckenridge v. Ingram, 2 Ves. 663; Co. Litt. 19, 20; 2 Bl. 19; Brewster v. Kitchell, 1 L. Ray. 317; 1 Smith’s Leading Cases, Notes to Am. ed. p. 92 ;) for a covenant will run with an incorporeal hereditament; (Balby v. Wells, 3 Wils. 26; Mayor of Congleton v. Pattison, 10 East, 130; North v. Ipswich Factory, 5 N. Hamp. 192; Platt on Cov. 469.)
The defendant, Penfold, as devisee in trust, took the land subject to this covenant, and having erected a store upon the lot, and made use of the party wall, he became liable to pay one half the value of it. (2 Crabbe on Real Property, 1,088 ; 1 Smith’s Lead. Cases, note of Am. ed. p. 93.)
An action for the breach of this covenant could not be maintained against the personal representatives of Mrs. Drake, for it was not broken during her lifetime. (Platt on Cov. 457.) If she had held under a lease, and her executor had entered and made use of the party wall, the executor would be liable de bonis testatoris. (Anon. Dyer, 324, b. pl. 34; Bull v. Wheeler, Cro. Jac. 647; Dean and Chapter of Bristol v. Gyse, 1 Saund. 111.) But the estate at her death passed to the defendant, Penfold; he has made use of the wall, and if the covenant cannot be enforced against him, the plaintiff is without a remedy.
The agreement between Mrs. Drake and the plaintiff recites that the parties have agreed that the division wall of their houses shall be taken down by the plaintiff, and that he shall *134erect, “in the place thereof,” a party wall twelve inches thick, on the division line of the said lots; and she then covenants that he may take down the division wall then standing, and erect, in the place thereof, a twelve inch party wall, one half of which in breadth and height is to rest on the ground owned by the respective parties. Whatever may have been the state of things previous to the entering into this agreement, I think it is plain, from the terms of it, that the “ division line” upon which the new party wall was to be erected was that made by the old “ division wall,” and assuming that to be the line intended, the plaintiff erected the new party wall upon the place or site of the old one, and thus discharged his covenant.
Seaman was a competent witness of the defendant. He was not necessarily a party, and the plaintiff, by making him a party, could not deprive the defendants of the..benfit of his testimony. The legal estate was in Penfold. He held it as trustee during the life of Seaman, Seaman standing in the relation of cestui que trust, and there was no occasion for making him a party. (1 R. S. 729, §§ 60,61; Having v. Hodgkinson, 4 Eng. Law and Eq. 462; Code, §§ 398, 399.)
The judgment is entered up jointly against all the defendants for the damages claimed. There can be no judgment against Seaman and wife for damages resulting from the breach of the covenant. The legal estate is not in them. The wall was not taken by them, for there is no evidence that they put ■up the building. The pleadings allege Penfold to be the sole owner, and the judgment should be against him alone.
We could rectify this error by affirming the judgment as to Penfold, had Seaman not been offered and excluded as a witness; but for this error the case must go back to the referee.
Judgment reversed, and case referred back to the referee; costs to abide the event.