[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 447 It is horn-book learning that a covenant relating to real estate does not run with the land unless it is of such a nature as to bind, not merely the parties thereto, but their grantees or successors in interest. A covenant is said to run with the land when either the liability to perform it, or the right to enforce it, passes to the assignee of the land. The question before us is not whether the plaintiff is the present owner of lands which are in fact benefited by such a covenant, but whether he has succeeded in framing a complaint which alleges such a covenant. The demurrer interposed by the defendants admits the facts which are set forth in the complaint, but does not admit the conclusions of the pleader. Tested by these simple elementary rules the complaint is obviously insufficient. Instead of setting forth the instrument containing the covenant, or pleading the covenant itself in hæc verba, the complaint apparently alleges the conclusions of its framer as to the nature and effect of the covenant. The allegation of the complaint is "the defendant * * * covenanted and agreed, by a covenant under seal, with its * * * grantors, to allow one carload per day loaded with grain (which car was to be furnished and loaded by the grantors, andto be in charge of a brakeman furnished by the grantors ifrequired) to be attached to any train going up from said lake upon said railroad, and to draw the same upon and by its trains upon the railroad aforesaid, using the lands so granted as aforesaid to the aforesaid lands of the plaintiff free of charge, and to draw the empty car back to the lake free of charge; that said covenant was entered into for the benefit of the premises aforesaid, now owned by the plaintiff, and to render them more valuable and useful as a place for conducting the said business of dealing in grain, ground or unground, and the performance thereof is of great value and practically necessary to the said premises and the successful and profitable conduct of the said business upon the same, and the covenant aforesaid is a covenant running with the land as to the plaintiff's premises aforesaid, and was by the parties thereto understood and intended to be a covenant *Page 449 running with the land, when entered into and ever since."
The only covenant alleged by the plaintiff is contained in the foregoing excerpt from the complaint. Where does the covenant begin and end? What portions of this quoted paragraph of the complaint set forth the words of the covenant and what part the language of the pleader? Suppose that it is possible to segregate from the rest of the paragraph that part which appears to contain the covenant, what is there to indicate that the pleader has not construed the covenant instead of quoting it? The manner in which the alleged covenant is referred to in connection with the context of the second paragraph of the complaint would seem to warrant the conclusion that the pleader has presented his idea of its effect and not a literal transposition of its terms. That this is not a fanciful or technical criticism of the complaint becomes evident when we compare its allegations with those of a former complaint which was held bad on demurrer. In the first complaint the allegation was that the defendant ore company had agreed "to draw upon any train on the railroad aforesaid, one car loaded with grain," etc. In the second complaint the allegation is that the ore company agreed "to allow one car per day loaded with grain to be attached to any train," etc. This agreement is alleged to have been made with the grantor. Whether it is a covenant at all, and if it is, whether it is a covenant which runs with the land so as to bind the assigns of the grantee for the benefit of the assigns of the grantor, must depend upon the accurate and precise language of the instrument in which the so-called covenant is contained. That instrument is not a part of the complaint. Without it no court should be called upon to determine the rights of the parties. The courts, no less than the defendants, are entitled to know just what the plaintiff has the right to claim. The complaint in its present form is not sufficient in that regard. In this view of the case it would be an idle ceremony to discuss the authorities which have been cited for our consideration by counsel for the respective parties. *Page 450
The order of the Appellate Division should be affirmed and the demurrer sustained, with costs to the respondents, with the usual leave to the plaintiff to plead over upon payment of costs. Both of the questions certified to us should be answered in the negative.
CULLEN, Ch. J., VANN, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur; HAIGHT, J., absent.
Order affirmed, etc.