afterward drew up the opinion of the Court. The plaintiff claims damages of the defendants for a breach by them of certain covenants contained in an indenture made by and between the plaintiff and several other persons, who were owners of mills on Charles river, at Newton Lower Falls, so called, the object and intent of the indenture being to limit and regulate the use of the waters of the river at their respective mills. The defendants were not parties to the indenture, but they have since purchased of two of the covenantors their mills mentioned in the indenture, and the question is, whether they are bound as assignees by any of the covenants between the contracting parties, as is alleged in the declaration.
To make a defendant liable to an action of covenant, there must be a privity between him and the plaintiff. Bally v. Wells, 3 Wils. 29. As there is no privity of contract between the plaintiff and the defendants, it follows that the defendants • are not liable in this action, unless there is a privity of estate between them. Where such a privity exists between the covenantor and the covenantee, and the covenantor assigns his estate, the privity thereby created between the assignee and the other contracting party, renders the former liable on all such covenants as regulate the mode of occupying the estate, and the like covenants concerning the same. And so if the covenantee assigns his estate, his assignee will have the benefit of similar covenants. These covenants are annexed to the land and run with it. But if there is no privity of estate between the contracting parties, the assignee will not be bound by, nor have the benefit of any covenants between the contracting parties, although they may relate to the land he takes by assignment or purchase from one of the parties to the contract. In such a case, the covenants are personal and are collateral to the land.
*463Covenants for 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 that 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 ; but 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. “ It is not sufficient,” as Lord Kenyon remarks, in Webb v. Russell, 3 T. R. 402, “that a covenant is concerning the land, but in order to make it run with the land, there must be a privity of estate between the covenanting parties.” And so the law has been laid down in all the cases turning on this point, ever since Spencer’s case.
A covenant to build a house on the land of a third person, is a mere personal covenant; but a covenant to build a house, or a new wall, on the land demised, will run with the land demised and bind the assignee, on account of the privity of estate between the covenanting parties. Spencer’s case, 5 Co. 16.
In Cole’s case, 1 Salk. 196, a house bad been leased, excepting two rooms, and free passage to them. The lessee assigned, and the assignee disturbed the lessor in the passage thereto, and for this disturbance the lessor brought covenant. The action was maintained, because of the privity of estate in the passage ; but it is laid down as clear law, that if the disturbance had been in either of the rooms, no action of covenant would have lain, because the rooms were excepted. As to them there was no privity of estate between the parties.
In Vyvyan v. Arthur, 1 Barn. & Cressw. 410, the owner of a mill, and certain lands, had leased the latter for a term of years, yielding and paying certain rents, and also doing suit to the mill of the lessor, by grinding all such corn there as should grow upon the demised premises ; and in an action of covenant brought by the assignee of the lessor of the mill and the reversion of the lands, against the lessee, it was held that th.e reservation of the suit to the mill was in nature of a rent ser*464vice, and that the implied covenant to render it, was a rea. covenant which would run with the land so long as the ownership of the mill and the reversion of the demised premises belonged to the same person. It seems to be difficult to reconcile this decision with the second resolution in Spencer’s case, and with other cases in which it has been decided that a covenant of a lessee to build a house upon the land of the lessor, not being parcel of the demise, is a collateral covenant not binding on the assignee. The distinction may be between covenants of this sort which are in the nature of rent, and those which are not. But however this may be, the decision does not impugn, but confirms the doctrine laid down in all the cases, that the assignee is not bound by, nor is he entitled to the benefit of a covenant, unless there is a privity of estate between the covenanting parties.
Considering this principle as well established by the cases cited, and many others not adverted to, we are of opinion that this action cannot be maintained, as there was no privity of estate between the covenanting parties. Their estates were several, and there was no grant of any interest in the real estate of either party, to which the covenants could be annexed. The stipulations in the indenture cannot be construed as grants and covenants at the same time. If they were grants, then an action of covenant is not the proper remedy for the violation of them ; and if covenants, the assignee is not bound, for want of privity of estate between the parties.
Nor can one covenant be considered as a grant, and the other as a covenant, for the stipulations are mutual, and if one is to be construed as a grant, the other should be construed in the same manner. If the stipulation that one party is to have the first preference of the use of the water for certain mills, is to be construed as a grant, the like stipulation, that the other party shall have the second preference, cannot consistently be construed as a covenant. And we ought not to give a strained construction to the indenture, for the purpose of extending the obligation of the contract to those who were not parties thereto. All the stipulations are covenants in form, were doubtless considered as such by the contracting parties, and must be so construed. As such they are mere personal covenants, accord-*465mg to all the authorities, and cannot be otherwise construed, without determining that all covenants concerning lands are real covenants, and binding on the assignee, however remote; which certainly cannot be maintained, either upon, authority or upon principle. Such an extension of the obligation of covenants might be productive of great mischief and confusion of rights and obligations of the purchasers and owners of real estate.
Declaration adjudged insufficient.