11 - Common Law by Oliver Wendell Holmes, Jr.

Dive into the rich history and intricate details of common law in the United States, exploring its evolution and significance through compelling narratives. (summary by TB27)

Episode Transcript

Speaker 1 (00:00):
Lecture eleven of the Common Law by Oliver Wendell Holmes Junior.
This recording is in the public domain. Successions two inter vivos,
the principal contracts known to the common law and suable
in the King's course a century after the conquest, were

(00:21):
sure to ship and debt. The heir, as the general
representative of his ancestors rights and obligations, was liable for
his debts, and was the proper person to suit for
those which would due the estate. By the time of
Edward the Third this had changed. Debts had ceased to
concern the heir, except secondarily. The executor took his place,

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both for collection and payment. It is said that even
when the heir was bound, he could not be sued,
except in case the executor had no assets. But there
was another ancient obligation which had a difference history. I
refer to the warranty which arose upon the transfer of property.

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We should call it a contract, but it probably presented
itself to the mind of Glanville's predecessors simply as a
duty or obligation attached by law to a transaction which
was directed to a different point. Just as the liability
of a bailey, which is now treated as arising from
his undertaking, was originally raised by the law out of

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the position in which he stood toward third persons. After
the conquest, we do not hear much of warranty except
in connection with the land, and this fact will at
once account for its having had a different history from debt.
The obligation of warranty was to defend the title, and

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if the defense failed to give to the evicted owner
other land of equal value. If an ancestor had conveyed
lands with the warranty, this obligation could not be fulfilled
by his executor, but only by his heir, to whom
his other lands had descended. Conversely, as to the benefit

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of warranties made to a deceased guarantee, his heir was
the only person interested to enforce such warranties, because the
land descended to him. Thus, the heir continued to represent
his ancestor in the latter's rights and obligations by way
of warranty after the executor had relieved him of the debts,

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just as before that time he had represented his ancestor
in all respects. If a man was sued for property
which he had bought from another. The regular course of
litigation was for the defendant to summon in his cellar
to take charge of the defense, and for him in
turn to summon in his if he had won, and

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so on until a party was reached in the chain
of title, who finally took the burden of the case
upon himself. The contrast, which was early stated between the
Lombard and the Roman law, existed equally between the Anglo
Saxon and the Roman. It was said that the Lombard
presents his grantera, the Roman stands in his gunter's shoes.

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Langovados that ocdorn Romanos that lorc acthois. Suppose now that
A gave land to B and B conveyed over to C.
If C was sued by D claiming a better title,
C practically got the benefit of A's wanty, because when

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he summoned B, B would summon A, and thus A
would defend the case in the end. But it might
happen that between the time when B conveyed to C
and the time when the action was begun, B had died.
If he left an heir, C might still be protected.
But supposing B left no heir, C got no help

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from a who, in the other event, would have defended
his suit. This, no doubt, was the law in the
Anglo Saxon period, but it was manifestly unsatisfactory. We may
conjecture for the good deal of confidence that a remedy
would be found as soon as there was machinery to
make it possible. This was furnished by the Roman law.

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According to that system, the bias stood in the place
of his cellar, and effusion of the Roman with the
Anglo Saxon wall was all that was needed. Bracton, who
modeled his book upon the writings of medieval civilians, shows
how this sword was used. He first put the case
of conveyance with the usual clause binding the granta and

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his heirs to want and offend the guarantee and his heirs.
He then goes on again, one may make his gift
greater and make other persons quasi airs of his guarantee,
although in in fact they are not heirs, as when
he says in the gift to have and to hold
to such a one and his heirs, or to whomsoever

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he shall choose to give or assign the said land,
and I and my heirs will want to the said
so and so and his heirs, or to whomsoever he
should choose to give or sign the said lamb and
their heirs against all persons, in which case, if the
guarantee shall have given or signed the land and then

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have died without heirs, the first gantor and his heirs
begin to hold the place of the first guaranty and
his heirs, and are in place of the first guarantees
heirs korhreede, so far as concerns wanting to his assigns
and their heirs, according to the clause contained in the

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first Gantor's charter, which would not be but for the
mention of the signs in the first gift, but so
long as a third as guaranty survives or his heirs
there held to warranty, and not the first granter. Here
we see that in order to entitle the assign to
the benefit of the first Granter's warranty, assigns must be

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mentioned in the original grant and covenant. The scope of
the ancient obligation was not extended without the wantor's assent,
but when it was extended, it was not by a
contrivance like a modern letter of credit. Such a conception
would have been impossible in that stage of the law.
By mentioning assigns, the first granter did not offer covenant

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to any person who would thereafter purchase the land. If
that had been the notion, there would have been a
contract directly binding the first granter to the assign as
soon as a land was sold, and thus there would
have been two warranties arising from the same clause, one
to the first guarantee, a second to the assign. But

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in fact the assign recovered on the original warranty to
the first guarantee. He could only come on the first
granta after a failure of the immediate grant as heirs
the first grant. By mentioning assigns simply enlarged the limits
of his guaranty's succession. The assign could vouch the first

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grant only on the principles of succession. That is to say,
he could only do so when, by the failure of
the first guarante's blood, the first guarantees's feudal relation to
the first granto his persona came to be sustained by
the assign. This was not only carrying out the fiction
with technical consistency, but was using it with good sense,

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as fictions generally have been used in the English law. Practically,
it made little difference whether the assign got the benefit
of the first Granto's warrantymediately or immediately. If he got it,
the trouble arose when he could not summon the mesnee grantor,
and the new rite was given him for that case alone. Later,

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the assign did not have to wait for the failure
of his immediate grantor's blood, but could take advantage of
the first Granto's warranty from the beginning. If it should
be suggested that what has been said goes to show
that the first Granto's duty to want arose from the
assigns becoming his man and owing homage, the answer is

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that he was not bound unless he had mentioned assigns
in his homage or no homage, and this bracton is
confirmed by all the later authorities. Another rule, on which
the vast doors of forgotten learning, will show how exactly
the fiction fell in with the earlier law. Only those

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who were privy in a state with the person to
whom the warranty was originally given could vouch the original warrantor.
Looking back to the early procedure, it will be seen that,
of course, only those in the same chain of title
could even immediately get the benefit of a former owner's wanty.

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The ground on which a man was bound to want
was that he had conveyed the property to the person
who summoned him. Hence a man could summon no one
but his granter, and the successive vouchers came to an
end when the last vouchie could not call on another
from whom he had walked. Now, when the process was abridged,

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no persons were made liable to summons who would not
have been liable before. The present owner was allowed to
vouch directly those who otherwise would have been indirectly bound
to defend his title, but no others. Hence he could
only summon those from whom his guantl derived his title.

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But this was equally well expressed in terms of the
fiction employed. In order to vouch, the present owner must
have the estate of the person to whom the warranty
was made. As every lawyer knows, the estate does not
mean the land. It means the status or persuona in
regard to that land. Formerly sustained by another. The same

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word was used in alleging a rite by prescription that
he and those whose estate he has have the time
whereof memory runneth not to the contrary, et cetera. And
it will be remembered that the word corresponds to the
same requirement of succession. There to return to Bracton, it

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must be understood that the description of a signs as
quasi heredes is not accidental. He describes them in that
way whenever he has occasion to speak of them. He
even pushes the reasoning drawn from the analogy of inheritance
to extremes, and refers to in countless passages. For instance,

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it should be noted that of airs, some are true heirs,
and some quisi airs in place of heirs et cetera,
true heirs by way of succession, quisi airs et cetera,
by the form of the gift, such as a science,
et cetera. If it should be suggested that Bracton's language

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is only a piece of medieval scholasticism, there are several answers.
In the first place, it is nearly contemporaneous with the
first appearance of the rite in question. This is shown
by his citing authority for it as for something which
might be disputed, he says, and that warranty must be

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made to as signs according to the form of the
gift is proved by a case in the Circuit of W.
Dourali about the end of the role, et cetera. It
is not justifiable to assume that a contemporary explanation of
a new rar had nothing to do with its appearance. Again,

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the fact is clear that the assign got the benefit
of the warranty to the first guarantee, not of a
new one to himself, as has been shown, and Bracton's
explanation of how this was worked out falls in with
what has been seen on the course of the German
and Anglo Saxon law, and with the pervading thought of

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the Roman law. Finally, and most important, the requirement that
the assign should be in of the first guarantee's estate
has remained a requirement from that day to this. The
fact that the same thing is required in the same
words as in prescription goes far to show that the
same technical thought is governed both. I have said, Lanville's

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predecessors probably regarded warranty as an obligation incident to a
convey is, rather than as a contract. But when it
became usual to insert the undertaking to want in a
deed or charter of fiefman, it lost something of its
former isolation as a duty standing by itself, and admitted

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of being generalized. It was a promise by deed, and
a promise by deed was a covenant. This was a covenant,
having peculiar consequences attached to it, no doubt. It differed
also in the scope of its obligation from some other covenants,
as will be shown hereafter. But still it was a

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covenant and could sometimes be sued on as such. It
was spoken of in the yearbooks of Edward the Thurd
as a covenant which fools in the blood, as distinguished
from those where the equittance fell on the blood and
not on the person. The importance of this circumstance lies
in the working of the law of warranty upon other covenants,

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which took its place when the old actions for land
gave way to more modern and speedier forms. Warrantors were
no longer vouched in to defend, and if a guaranty
was evicted, damages took the place of a grant of
other land. The ancient warranty disappeared and was replaced by

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the covenants which we still find in our deeds, including
the covenants for season, for right to convey, against incumbrances,
for quiet, enjoyment of warranty, and for further assurance. But
the principles on which an assign could have the benefit
of these covenants were derived from those which governed warranty,

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as anyone may see by looking at the earlier decisions.
For instance, the question what was a sufficient assignment to
give an a sign the benefit of a covenant for
quiet enjoyment was argued and decided on the authority of
the old cases of warranty. The assign as in warranty,

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came in under the old covenant with the first covenant t,
not by any new right of his own. Thus, in
an action by an assign on a covenant for further assurance,
the defendant set up a release by the original covenant
t after the commencement of the suit. The court held
that the assignee should have the benefit of the covenant.

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They held that although the breach was in the time
of the assime, yet if the release had been by
the COVENANTI, who is a party to the deed and
from whom the plaintiff derives before any breach or before
the suit commenced, it had been a good bar to
the assignmee from bringing this fit of covenant. But the

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breach of the covenant being in the time of the
assime and the action brought by him and so attached
in his person, the covenante cannot release this action wherein
the assignee is interested the covenant T. Even after assignment
remains the legal party to the contract. The assign comes

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in under him and does not put an end to
his control over it until by breach and action a
new right attaches in the assign's person, distinct from the
rights derived from the persona of his granta. Later the
assign got a more independent standing, as the original foundation
of his rights sunk gradually out of sight, and release

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after assignment became ineffectual, at least in the case of
a covenant to pay rent. Only privies in a state
with the original covenant T can have the benefit of
covenants for title. It has been shown that a similar
limitation of the benefits of the ancient warranty was required

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by its earlier history before the assign was allowed to sue,
and that the fiction by which he got that right
could not extend it beyond that limit. This analogy also
was followed. For instance, a tenant entail Mail, made a
lease for years with covenance of right to let and
required enjoyment, and then died without issue Mail. The lessee

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assigned the lease to the plaintiff. The latter was soon
turned out, and thereupon brought an action upon the covenant
against the executor of the lessel. It was held that
he could not recover because he was not privy in
a state with the original covenant T for the lease,
which was the original covenant. T's estate was ended by

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the deaths of the lesser and termination of the estate
tale out of which the lease was granted before the
form of assignment to the plaintiff. The only point remaining
to make the analogy between covenants for title and warranty
complete was to acquire signs to be mentioned in order
to enable them to sue. In modern times, of course,

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such a requirement, if it should exist, would be purely
formal and would be of no importance except as an
earmark by which to trace the history of a doctrine.
It would aid our studies if we could say that,
wherever signs are to get the benefit of a covenant
as privies in estate with the covenant t they must

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be mentioned in the covenant. Whether such a requirement does
exist or not would be hard to tell from the
decisions alone. It is commonly supposed not to. But the
popular opinion on this trifling point springs from a failure
to understand one of the great antiinomies of the law,
which must now be explained. So far as we have gone,

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we have found that wherever one party steps into the
rights or obligations of another without in turn filling the
situation a fact of which those rights or obligations are
the legal consequences. The substitution is explained by a fictitious
identification of the two individuals, which is derived from the

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analogy of the inheritance. This identification has been seen as
it has been consciously worked out in the creation of
the executor, whose entire status is governed by it. It
has been seen still consciously applied in the narrower sphere
of the air. It has been found hidden at the

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root of the relation between buyer and seller in two
cases at least prescription and warranty, when the history of
that relation is open to a sufficient depths. But although
it would be more symmetrical if this analysis exhausted the subject,
there is another class of cases in which the transferred
rights takes place upon a wholly different plan. In explaining

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the succession which is worked out between buyer and seller
for the purpose of creating a prescriptive right, much as
a right of way of a neighboring land to the
land ort nsant, it was shown that one who, instead
of purchasing the land, had wrongfully possessed himself of it
by force would not be treated as a successor and

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would get no benefit from the previous use of the
way by his decisive But when the former possessor has
already gained a right of way before his turned out,
a new principle comes into operation. If the owner of
the land over which the way ran stopped it up
and pursued by the wrongful possessor, a defense on the

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ground that the decisor had not succeeded to the former
owner's rights would not prevail. The decisor would be protected
in his possession of the land against all but the
rightful owner, and he would equally be protected in his
use of the way. This rule of law does not
stand on a succession between the wrongful possessor and the owner,

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which is out of the question. Neither can it be
defended on the same ground as a protection to the
occupation of the land itself. That ground is that the
law defends possession against everything except a better title. But
as has been said before, the common law does not
recognize possession of a way. A man who has used

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away ten years without title cannot sue even a stranger
for stopping it. He was a trespasser at the beginning.
He is nothing but a trespasser. Still there must exist
aright against the servient owner before there is a right
against anybody else. At the same time, it is clear

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that a way is no more capable of possession because
somebody else has a right to it than if no
one had. How comes it then that one who has
neither title nor possession is so far favored. The answer
is to be found not in reasoning, but in a
failure to reason. In the first lecture of this Court,

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the sort with which we have to deal was shown
in its theological stage to borrow Kant's well known physiology
as where an axe was made the object of criminal process,
and also in the metaphysical stage, where the language of
personification alone survived, but survived to cause confusion of reasoning.

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The case put seems to be an illustration of the latter.
The language of the law of easements was built up
out of similes drawn from persons at a time when
the noxated isisio was still familiar, and then, as often happens,
the language reacted upon thought, so that conclusions were drawn

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as to the rights themselves from the terms in which
they happened to be expressed. When one estate was said
to be enslaved to another, or a right of way
was said to be equality or incident of a neighboring
piece of land, men's minds were not alert to see
that these phrases were only so many personifying metaphors, which

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explain nothing unless the figure of speech was true or gone.
Deduced the negative nature of servitudes from the rule that
the land owes the services, not the person predium non
bezona serwit or said roguan the land alone being bound,
it can only be bound passively. Austin called this an

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absurd remark. But the jurists from whom we have inherited
our law easements were contented with no better reasoning. But
Pinion himself wrote that servitudes cannot be partially extinguished, because
they are due from lands, not persons. Celsus thus decides
the case which I took from my illustration. Even if

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possession of a dominant estate is acquired by forcibly ejecting
the owner, the way will be retained, since the estate
is possessed in such quality and condition as it is
when taken. The commentator Cord of Frois tersely adds that
there are two such conditions, slavery and freedom, and his

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antithesis is as old as Cicero. So in another passage,
Celsus asks, what else are the rights attaching to land?
But qualities of that land? So Justinian's institutes speak of servitudes,
which inhere in buildings. So Powerless speaks of such rights

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as being accessory to bodies. And thus, as God of Frois,
rights may belong to inanimate things. It easily followed from
all this that a sale of the dominant estate carried
existing easements, not because the buyer succeeded to the place
of the seller. But because land is bound to land,

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all these figures import that land and is capable of
having rights, as Austin recognizes. Indeed, he even says that
the land is erected into a legal or fictitious person,
and is styled prayerium dominans. But if this means anything
more than to explain what is implied by the Roman metaphors,

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it goes too far. The dominant estate was never erected
into a legal person, either by conscious fiction or as
a result of primitive beliefs. It could not sue or
be sued like a ship in the admiralty. It is
not supposed that its possessor could maintain an action for

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an interference with an easement before his time as an
heir could for an injury to property of the here
Dita's jake ens. If land had even been systematically treated
as capable of acquiring rights, the time of a decisive
might have been added to that of the wrongful occupant

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on the ground that the land and not this or
that individual, was gaining the easement, and that long association
between the enjoyment of the privilege and the land was sufficient,
which has never been the law. All that can be
said is that the metaphors and similes employed naturally led
to the rule which has prevailed, and that as this

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rule was just as good as any other, or at
least was unobjectionable, it was drawn from the figures of
speech without attracting attention, and before any one had seen
that they were only figures which proved nothing and justified
no conclusion. As easements were said to belong to the
dominant estate, it followed that whoever possessed the land had

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a right of the same degree over what was incidental
to it. If the true meaning had been that away
or other easement admits of possession and is taken possession
of with the land to which it runs, and that
its in enjoyment is protected on the same grounds as possession.
In other cases the sort could have been understood, but

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that was not the meaning of the Roman law, and
as has been shown, it is not the doctrine of ours.
We must take it that easements have become an incident
of land by an unconscious and unreasoned assumption that a
piece of land can have rights. It need not be
said that this is absurd, Although the rules of law

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which are based upon it, are not so absurd or not.
The similes, as well as the principles of the Roman
law reappear in Bracton. He says, the servitude by which
land is subjected to other land is made on the
likeness of that by which man is made the slave
of man. For rights belong to a free tenement, as

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well as tangible things. They may be called rights or
liberties with regard to the tenements to which they are owed,
but servitudes with regard to the tenements by which they
are owed. One estate is free, the other subjected to slavery.
A servitude may be called an arrangement, by which house
is subjected to house, farm to farm, holding to hoarding.

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No passage has met my eye in which Bracton expressly
decides that an easement goes with the dominant estate upon
a disseisin. But what he says leaves little doubt that
he followed the Roman law in this, as in other things.
The writ against a decisal was for so much land
and its supertinences, which must mean that he who had

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the land, even wrongfully, had the impertinences. So Bracton says,
an action is in rem whether it is for the
principal thing, or for right which adheres to the thing,
as when one soothes for right of way, Since rights
of this sort are all in corporeal things, and are
quasi possess and reside in bodies, and cannot be got

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or kept without the bodies in which they inhere, nor
in any way had without the bodies to which they belong.
And again, since rites do not admit of delivery, but
are transferred with the thing in which they are, that is,
the bodily thing, he to whom they are transferred forthwith
has a quasi possession of those rights as soon as

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he has the body in which they are, there is
no doubt about the later law. As has been said
at the outset, we have thus traced two competing and
mutually inconsistent principles into our law. On the one hand,
is a conception of succession or privity, on the other

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that of rights inhering in a thing. Bracton seems to
have vacillated a little from a feeling of the possibility
of conflict between the two. The benefit of a wanty
was confined to those who, by the act and consent
of the guarantee succeeded to his place. It did not
pass to a signs unless a signs were mentioned. Bracton

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supposes grants of easements with or without mention of the signs,
which looks as if he thought the difference might be
material with the guard to easements. Also, he further says
that if an easement be granted to a his heirs
and as signs, all such by the form of the
grant are allowed the use in succession, and all others

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are wholly excluded. But he is not speaking of what
the rights of a decisor would be as against one
not having a better title, and he immediately adds that
they are rights over a corporeal object, belonging to a
corporeal object. Although it may be doubted whether the mention
of a science was ever necessary to attach an easement

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to land, and although it is very certain that it
not remain so long the difficulty referred to grew greater
as time went on. It would have been easily disposed of.
If the only rights which could be annexed to land
were easements such as a right of way. It then
might have been said that these were certain limited interests

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in land less than ownership in extent, but like it
in kind, and therefore properly transferred by the same means.
That ownership was a right of way, it might have
been argued, is not to be approached from the point
of view of contract. It does not presuppose any promise
on the part of the serving owner. His obligation, although

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more troublesome to him than to others, is the same
as that of everyone else. It is the purely negative
duty not to obstruct or interfere with the right of property.
But although the tests of rights going with the land
may have been something on the nature, this will not
help us to understand the cases without a good deal

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of explanation. For such rights might exist to active services
which had to be performed by the person who held
the servient estate. It strikes our heirs chrangely to hear
a right to services from an individual called a right
of property as distinguished from contract. Still, this will be
found to have been the way in which such rights

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were regarded. Bracton argues that it is no wrong to
the lord for the tenant to alienate land held by
free and perfect gift, on the ground that the land
is bound and charged with the services into whose handsoever
it may come. The lord is said to have a
fee in the homage and services, and therefore no entry

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upon the land, which does not disturb them injures him.
It is the tenement which imposes the obligation of homage,
and the same thing is true of villain and other
feudal services. The law remained unchanged when feudal services took
the form of rent, even in our modern terms. For years,

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rent is still treated as something issuing out of the
least premises, so that to this day, although if you
hire a whole house and it burns down, you have
to pay without abatement, because you have the land out
of which the rent issues. Yet if you only hire
a suite of rooms and they are burned, you pay

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rent no longer, because you no longer have the tenement
out of which it comes. It is obvious that the
foregoing reasoning leads to the conclusion that a decisior of
the tenant would be bound as much as the tenant himself,
and this conclusion was adopted by the early law. The

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lord could require the services or collect the rent of
anyone who had the land, because, as was said in
language very like practics, the charge of the rent goes
with the land. Then, as to the right to the rent,
rent was treated in early law as a real right

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of which a deceasing was possible, and for which a
possessory action could be brought, if, as was very frequently
the case, the least land lay within a manner, the
rent with a parcel of the manner, so that there
was some ground for saying that one who was seized
of the manner, that is, who possessed the lands occupied

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for the lord of the manner, and was recognized by
the tenants as lawd had the rents as incident there too.
Thus Bryan, chief Justice of England under Henry the Sevants, says,
if I am deceased of a manner, and the tenants
pay their rent to the Diceasar, and then irienter, I
shall not have the back rent of my tenants which

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they have paid to my deceasar, but the Diceasar should
pay for all in trespass or assize. This opinion was
evidently founded on the notion that the rent was attached
to the chief land like an easement seig feet word
to the antoor rai array. Different principles might have been

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applied when the rent was not parcel of a manner
and was only part of the reversion, that it is
part of the landlord's fee or estate out of which
the lease was carved. If the lease and rent were
merely internal divisions of that estate, the rent could not
be claimed except by one who was privy to that estate.

(35:37):
A de caesar would get a new and different fee
and would not have the estate of which the rent
was part. And therefore it would seem that in such
a case the tenant could refuse to pay him rent,
and that the payment to him would be no defense
against the true owner. Nevertheless, if the tenant recognized him,

(35:59):
the diseasar would be protected as against persons who could
not show a better title. Furthermore, the rent was so
far annexed to the land that whoever came by the
reversion lawfully could collect it, including the superior lord in
case of es cheat. Yet eschiat meant the extinction of

(36:20):
the fee of which the lease and rent were parts.
And although Bracton regarded the lord as coming in under
the tenant's title for hereede in privity, it was soon
correctly settled that he did not, but came in paramount.
This instance therefore comes very near that of a de caesar.

(36:42):
Services and rent then were, and to some extent are
still dealt with by the law from the point of
view of property. They were things which could be owned
and transferred like other property. They could be possessed even
by wrong and possessory remedies were given for them. No

(37:02):
such notion was applied to warrantees, or to any right
which was regarded wholly from the point of view of contract.
And when returned to the history of those remedies for
rent which sounded in contract, we find that they were
so regarded the actions of debt and covenant could not
be maintained without privity. In the ninth year of Henry

(37:26):
the six it was doubted whether an heir having the
reversion by descent could have debt, and it was held
that a grantee of the reversion, although he had the rent,
could not have that remedy for it. A few years
later it was decided that the heir could maintain debt,
and in Henry the seventh's reign, the remedy was extended

(37:49):
to the devisi, who, as has been remarked above, seemed
more akin to the air than a grante, and was
more easily likened to him. It was there meeno logically
necessary to give a signs the same action, and this
followed the privity of contract followed the estate, so that
the assignee of the reversion could sue the person then

(38:13):
holding the term unlike grounds. He was afterwards allowed to
maintain covenant. But these actions have never lain for or
against persons not privy in a state with the lesser
and the less see, respectively, because privity to the contract
could never be worked out without succession to the title. However,

(38:34):
all these niceties had no application to the old freehold
rents of the feudal period, because the contractual remedies did
not apply to them. Until the time of Queen Anne.
The freehold rent was just as much real estate as
an acre of land, and it was sued for by
the similar remedy of an assize asking to be put

(38:56):
back into possession. The allowance of contractual remedies shows that
rent and feudal services of that nature, although dealt with
as things capable of possession and looked at generally from
the point of view of property rather than of contract,
yet approached much nearer to the nature of the latter
than a mere duty not to interfere with the way.

(39:19):
Other cases come nearer. Still, the sphere of prescription and
custom in opposing active duties is large. In early law.
Sometimes the duty is incident to the ownership of certain land,
sometimes the right is, and sometimes boats are as in
the case of an easement, when the service was for

(39:41):
the benefit of other land, the fact that the burden,
in popular language, fell upon one parcel was of itself
a reason for the benefit. Attaching to the other. Instances
of different kinds are these. A parson might be bound
by custom to keep a bull and a ball the
use of his parish. A right could be attached to

(40:04):
a manner by a prescription to have a convent sing
in the manner chapel. A right might be gained by
like means to have certain land fenced by the owner
of the neighboring lot. Now it may readily be conceded
that even rights like the last two, when attached to land,
were looked at as property and were spoken of as

(40:25):
the subject of grant. It may be conceded that, in
many cases where the statement sounds strange to modern ears,
the obligation was regarded as failing on the land alone,
and not on the person of the tenant, And it
may be conjectured that this view arose naturally and reasonably
from there having been originally no remedy to compel performance

(40:49):
of such services, except a distress executed on the servient land.
But any conjectured distinction between obligations for which the primitive
remedy was distress alone and others, if it ever existed,
must soon have faded from view. And the line between
those rights which can be deemed rights of property and

(41:11):
those which are mere contracts is hard to see. After
the last examples. A covenant to repair is commonly supposed
to be a pure matter of contract. What is the
difference between a duty to a pair and a duty defense.
The difficulty remains almost as great as ever, of finding
the dividing line between the competing principles of transfer succession

(41:36):
on the one side, and possession of dominant land on
the other. If a right in the nature of an
easement could be attached to land by prescription, it could
equally be attached by grant if it went with the land,
in one case, even into the hands of a diseaser,
it must have gone with it. In the other no

(41:56):
satisfactory distinction could be based on the mode of acquisition,
nor was any attempted. As the right was not confined
to a science, there was no need of mentioning a science.
In modern times, at least, if not in early law,
such rights can be created by covenant as well as
by grant, and on the other hand, it is ancient

(42:19):
law that an action of covenant may be maintained upon
an instrument of grant. The result of all this was
that not only a right created by covenant, but the
action of covenant itself might in such cases go to
a science, although not mentioned at a time when such
mention was essential to give them the benefit of a warranty. Logically,

(42:43):
these premises led one step farther, and not only a
signs not named, but diseases should have been allowed to
maintain their action on the contract, as they had the
right arising out of it. Indeed, if the plaintiff had
a right which, when obtained by grant, would have entitled
him to covenant, it was open to argument that he

(43:04):
should be allowed the same action when he had the
right by prescription. Although as has been seen in the
case of ren It did not follow in practice from
a man's having arright that he had the contractual remedies
for it. Covenant acquired a specialty, but prescription was said
to be a sufficiently good speciality. Where then was the

(43:27):
line to be drawn between covenants that devolved only to
successes and those that went with the land. The difficulty
becomes more striking upon further examination of the early law.
For side by side with the personal warranty, which has
been discussed hitherto, there was another warranty which has not
yet been mentioned, by which particular land alone was bound.

(43:52):
The personal warranty bound only the warrantor and his heirs.
As was said in a case of the time of
Edward the Third, no one can bind the signs to warranty,
since warranty always extends to heirs who claim by succession
and not by assignment. But when particular land was bound,
the warranty went with it, even into the hands of

(44:15):
the king, because, as Bacton says, the thing goes with
its burden to every one. Fleeta writes that every possessor
will be helmed. There cannot be a doubt that a
deceasar would have been bound equally with one whose possession
was lawful. We are now ready for a case decided
under Edward. The sert which has been discussed from the

(44:37):
time of fitz Herbert and Coke down to Lord Saint
Leonard's and mister Wall, which is still law and is
said to remain still unexplained. It shows the judges hesitating
between the two conceptions to which this lecture has been devoted.
If they are understood, I think the explanation will be clear.

(44:57):
Pakenham brought covenant as heir of the covenant t against
a prior the breach of a covenant made by the
defendant's predecessor with the plaintiff's great grandfather that the prior
and convent should sing every week in a chapel in
his manner for him and his servants. The defendant first

(45:17):
pleaded that the plaintiff and his servants were not dwelling
within the manner, but not daring to rest his case
on that, he pleaded that the plaintiff was not heir,
but that his elder brother was. The plaintiff replied that
he was tenant of the manner and that his great
grandfather in fieft a stranger who in fiefed the plaintiff

(45:39):
and his wife, and that thus the plaintiff was tenant
of the manner by purchase and privy to the ancestor,
and also that the services had been rendered for a
time whereof the memory was not. It is evident from
these pleadings that the signs were not mentioned in the covenant,
and so it has always been taken. It also appears

(46:02):
that the plaintiff was trying to stand on two grounds,
first privity as descendant and a sign of the covenant
t Second, that the service was attached to the manner
by covenant or by prescription, and that he could maintain
covenant as tenant of the manner from whichever source the
duty arodse Finchton j. Puts the case of parsoners making

(46:26):
petition and one covenanting with the other to acquit of suit.
A purchaser has the advantage of the covenant belknap for
the defendants agrees, but distinguishes. In that case the acquittance
falls on the land and not on the person. That
is to say, such obligations follow the analogy of easements,

(46:49):
and as of the burden falls on the quasi servian
estate the benefit goes with the dominant land to assigns,
whether mentioned or not, and they are not considered from
the point of view of contract at all. Warranty, on
the other hand, is a contract pure and simple, and
lies in the blood forms on the person, not on

(47:10):
the land. Finchton a. Forty uri in this case, for
there the action was maintained because the plaintiff was tenant
of the land on which the suit was due. And
here he is tenant of the manner where the chapel
is Witchingham j. If the king grants one to another

(47:31):
who is tenant of the manner, he shall have one,
et cetera. But the warren will not pass by the
grant of the manner, because the warren is not appendant
to the manner. No more does it seem the services
are here appendant to the manner thought c. J. To Belknap.

(47:51):
There are some covenants on which no one shall have
an action but the party to the covenant or his heir.
And some covenants have inherited in the land, so that
whoever has a land by alienation when other manner, shall
have action of covenant. Or, as it is stated in
fitz Herbert's abridgment. The inhabitants of the land, as well

(48:14):
as everyone who has the land, shall have the covenant.
And when you say he is not air, he is
privy of blood and may be air. And also he
is tenant of the land. And it is a thing
which is annexed to the chapel, which is in the manner,
and so annexed to the manner. And so he has

(48:34):
said that the services have been rendered for all time
whereof there is memory. Whence it is fight, this action
should be maintained. Balknab denied that the plaintiff counted on
such a prescription, but Thorpe said he did, and we
bear record of it, and the case was adjourned. It
will be seen that the discussion followed the lines marked

(48:57):
out by the pleading. One judge thought that the plaintiff
was entitled to recover as tenant of the manner. The
other puny doubted, but agreed that the case must be
discussed on the analogy of easements. The Chief Justice, after
suggesting the possibility of sufficient privity on the ground that
the plaintiff was privy in blood and might be heir,

(49:20):
turns to the other argument as more promising and evidently
founds his opinion upon it. It would almost seem that
he considered a prescriptive right enough to support the action,
and it is pretty clear that he thought that a
deceasar would have had the same rights as the plaintiff.
In the Reign of Henry the Fourth, another case arose

(49:43):
upon a covenant very like the last, but this time
the facts were reversed. The plaintiff counted as air but
did not allege that he was tenant of the manner.
The defendant, not denying the plaintiff's descent, pleaded in substance
that he was not tenant of the manner in his
own right. The question raised by the pleadings therefore, was

(50:06):
whether the heir of the covenant t could sue without
being tenant of the manner. If the covenant was to
be approached from the side of contract, the heir was
party to it as representing the covenant T. If, on
the other hand, it was treated as amounting to the
god of a service like an easement, it would naturally

(50:27):
grow with the manner if made to the lord of
the manner. It seems to have been thought that such
a covenant might go either way, according as it was
made to the tenant of the manner, or to a stranger. Markham,
one of the judges, says, in a writ of covenant
one must be privy to the covenant if he would
have a writ of covenant or aid by the covenant.

(50:51):
But peradventure, if the covenant had been made with the
lord of the manner, who had inheritance in the manner, oh,
he seemed come determination. Why estree faith it would be otherwise,
which was admitted. It was assumed that the covenant was
not so made as to attach to the manner, and

(51:13):
the court, observing that the service was rather spiritual than tempore,
were inclined to think that the heir could sue the
defendant accordingly over and set up a release. It will
be seen how fully this agrees with the former case.
The distinction taken by Markham is stated very clearly in

(51:33):
a report by Lord Coke in the argument of Chudley's case.
The line is drawn thus always the warranty as to
voucher requires privity of estate to which it was annexed
i e. Succession to the original covenant t And the
same law of a use, but of things annexed to land.

(51:54):
It is otherwise as of commons at thousands and intruder,
or the law by his cheat et cetera, shall have
them as sings annexed to the land. So note a
diversity between a use or warranty and the like things
annexed to the estate of the land in privity, and
commons ad thousands and other hereditaments annexed to the possession

(52:19):
of the land. And this, it seems to me, is
the nearest approach which has ever been made to the truth. Coke,
in his commentary on Lyttleton three eight five A, takes
a distinction between a warranty which binds the party to
yield lands in a recompense, and a covenant annexed to
the land, which is to yield but damages. If Lord

(52:43):
Coke had meant to distinguish between warranties and all covenants, which,
in our loose modern sense, are said to run with
the land, this statement would be less satisfactory than the
preceding A warranty was a covenant which sometimes yielded but images,
and a covenant in the old law sometimes yielded land.

(53:04):
In looking at the early cases, we are reminded of
the still earlier German procedure, in which it did not
matter whether the plaintiff's claim was founded on a right
of property in a thing or simply on a contract
for it. Covenant was brought for a free hold under
Edward the first and under Edward the third. It seems

(53:25):
that a mill could be abated by the same action
when maintained contrary to an easement created by covenant. But
Lord Coke did not mean to lay down any sweeping doctrine,
for his conclusion is that a covenant is in many
cases extended further than the one tea. Furthermore, this statement,

(53:47):
as Lord Coke meant, it, is perfectly consistent with the
other and more important distinction between born teas and rights
in the nature of easements or covenants creating such rights.
For Lord Koch's examples are confined to covenants of the
latter sought, being in fact only the cases just stated
from the yearbooks. Later writers, however, have wholly forgotten the

(54:11):
distinction in question, and accordingly it is fatal to settle
the disputed line between conflicting principles covenance, which started from
the analogy of quarantees and others, to which was applied
the language and reasoning of easements have been confounded together
under the title of covenance running with the land. The

(54:33):
phrase running with the land is only appropriate to covenants
which pass like easements, but we can easily see how
it came to be used more loosely. It has already
been shown that covenance for title, like warrantys, went only
to successes of the original covenant t The technical expression

(54:53):
for the rule was that they were annexed to the
estate in privity. Nothing was easier than to overlook the
technical use of the word estate and to say that
such covenance went with the land. This was done, and
forcewith all distinctions became doubtful. It probably had been necessary
to mention a science in covenance for title, as it

(55:16):
certainly had been to give them the benefit of the
ancient warranty. This seems to have been the form mark
of these covenants, which passed only to privies. But it
was not necessary to mention a science in order to
attach easements and the like to land. Why should it
be necessary for one covenant running with the land more

(55:37):
than another, And if necessary for one, why not for
all the necessity of such mention in modern times has
been supposed to be governed by a fanciful rule of
Lord Coax. On the other hand, the question is raised
where the covenants which should pass irrespective of privity, are
not governed by the same rule which governs warranties. These

(56:00):
questions have not lost their importance. Covenants for title are
in every deed, and other covenants are only less common,
which it remains to show belong to the other class.
Chief among these is the covenant to repair. It has
already been observed that an easement of fencing may annexed

(56:21):
to land, and it was then asked what was a
difference in kind between a right to have another person
build such structures and a right to have him repair
structures already built. Evidence is not wanting to show that
the likeness was perceived, only as such covenants are rarely,
if ever made, except in leases. There is always privity

(56:43):
to the original parties, for the lease could not and
the reversion would not be likely to go by this season.
The Dean of Windsor's case decides that such a covenant
binds an assignee of the term. Although not named, it
is reported in two books of the Highest Authority, one
of the reporters being Lord Coke, the other Kruk, who

(57:06):
was also a judge. Kruk gives the reason thus full covenant,
which runs and rests where the land lies for or
against the assignee at the common law queer transit terin Kumonee.
Although the Assignmese be not named in the covenant. This
is the reason which governed easements, and the very phrase

(57:29):
which was used to account for all possesses being bound
by a covenant binding a parcel of land to warranty.
Cook says, for such covenant which extends to the support
of the seeing demised, is koor d'mordel a pertinent to it,
and goes with it again the language of easements. And

(57:50):
to make this planer if need be, it is added,
if a man grants to one Istova's to repair his house,
it is a pertinent to his house estoubas for a
pair went with the land like other rites of common which,
as Lord Coke has taught us, passed even to diseases.

(58:11):
In the next reign, the converse proposition was decided that
an assignee of the reversion was entitled in like manner
to the benefit of the covenant because it is a
covenant which runs with the land. The same law was
applied with still clearer reason to a covenant to leave
fifteen acres unplowed for pasture, which was held to bind

(58:32):
an assigne not named, And it would seem to a
covenant to keep land properly manured. If the analogy which
led to this class of decisions were followed out, a
diseasar could sue or be sued upon such covenants. If
the other facts were of such a kind as to
raise the question. There is nothing but the novelty of

(58:54):
the proposition which need prevent its being accepted. It has
been mentioned above that words or covenant may annex an
easement to land, and that words of guand may import
a covenant. It would be rather narrow to give a
his caesar one remedy and deny him another. Where the
right was one, and the same words made both the

(59:15):
grant and the covenant. The language commonly used. However, through
it doubt and darkness over this and every other question
connected with the subject. It is a consequence already referred
to of confounding covenants. The title and the class last
discussed under the name of covenants running with the land.

(59:36):
According to the general opinion, there must be a privity
of estate between the covenant tour and the covenant t
in the latter class of cases, in order to bind
the assigns of the covenanteur. Some have supposed this privity
to be tenure, some an interest of the covenant t
in the land of the covenanteur, and so on. The

(59:59):
first notion is false, the second misleading, and the proposition
to which they are applied is unfounded. Privity of estate,
as used in connection with covenants at common law, does
not mean tenure or easement. It means succession to a title.
It is never necessary between covenanter and covenant t or

(01:00:22):
any other persons, except between the present owner and the
original covenant t and on principle, it is only necessary
between them in those cases such as warranties and probably
covenance for title, where the covenance being regarded wholly from
the side of contract, the benefit goes by way of

(01:00:43):
succession and not with the land. If now it should
be again asked at the end of this long discussion,
where the line is to be drawn between these two
classes of covenants, the answer is necessarily vague. In view
of the authorities. The following propositions may be of some service.

(01:01:04):
A with regard to covenants which go with the land. One,
where either by tradition or good sense, the burden of
the obligation would be said elliptically to fall on the
land of the covenant. The creation of such a burden is,
in theory a grant or transfer of a partial interest

(01:01:25):
in that land to the covenant. T As the right
of property so created can be asserted against every possessor
of the land, it would not be extravagant or absurd
to allow it to be asserted by the action of covenant. Two.
Where such a right is granted to the owner of
a neighboring peace of land for the benefit of that land,

(01:01:49):
the right will be attached to the land and go
with it into all hands. The action of covenant would
be allowed to assigns not named, and it would not
be absurd to give it to diseases. Three. There is
one case of a service, the burden of which does
not fall upon land, even in theory, but the benefit

(01:02:11):
of which might go at common law with the land
which it benefited. This is the case of singing and
the like by a convent, it will be observed that
the service, although not falling on land, is to be
performed by a corporation permanently seated in the neighborhood. Similar
cases are not likely to arise now, b with a

(01:02:35):
guard to covenants which go only with the estate in
the land. In general, the benefit of covenants, which cannot
be likened to gods, and the burden of which does
not fall on land, is confined to the covenant t
and those who sustain his persona, namely his executor or heir.
In certain cases of which the original and type was

(01:02:58):
the ancient warranty, and of which the modern covenants for
title are present examples, the sphere of succession was enlarged
by the mention of a science and a signs are
still allowed to represent the original covenant T for the
purposes of that contract, but it is only by way

(01:03:18):
of succession that any other person than the party to
the contract consume upon it. Hence the plaintiff must always
be privy in a state with the covenant t. See.
It is impossible, however, to tell by general reasoning, what
rights will be held in English law to belong to

(01:03:39):
the former class, or where the line will be drawn
between the two. The authorities must be consulted as an
arbitrary fact. Although it might sometimes seem that the test
of the first was whether the service was of a
nature capable of grant, so that if it rested purely
in covenant, it would not follow the lad Yet if

(01:04:01):
this tests were accepted, it has already been shown that,
apart from tradition, some services which do follow the land
could only be matter of covenant. The grant of light
and air a well established easement is called a covenant
not to build on the serviant land to the injury
of the light by barren park. And although this might

(01:04:24):
be doubted, it has been seen that at least one
well established easement, that of fencing, cannot be considered as
a right granted out of the servant land with any
more propriety than a hundred other services, which would be
only matter of contract if the law allowed them to
be annexed to land. In like manner, the duty to

(01:04:45):
repair exists only by way of covenant. Yet the reasoning
of the leaving cases is drawn from the law of easement.
On the other hand, a covenant by lessie to build
a wall upon the least premises was held in Spencer's
case not to buy the signs unless mentioned. But Lord
Koch says that it would have bound them if it

(01:05:08):
had purported to the analogy of warranty makes its appearance
and throws a doubt on the fundamental principle of the case.
We can only say that the application of the law
is limited by custom and by the rule that new
and unusual burdens cannot be imposed on land. The general

(01:05:28):
object of this lecture is to discover the theory on
which a man is allowed to enjoy a special right
when the facts out of which the right arises are
not true of him. The transfer of easemans presented itself
as one case to be explained, and that has now
been analyzed, and its influence on the law has been traced.

(01:05:49):
But the principle of such transfers is clearly anomalous and
does not affect the general doctrine of the law. The
general doctrine is that which which has been seen exemplified
in prescription, warranty and such covenance as followed the analogy.
Another illustration which has not yet been mentioned, is to

(01:06:11):
be found in the law of uses. In all times
a use was a chose in action, that is, was
considered very nearly from the point of view of contract,
and it had a similar history to that which has
been traced in other cases. At first it was doubted
whether the proof of such a secret trust or to

(01:06:31):
be allowed, even as against the heir. It was allowed. However,
in the end and then the principle of succession was
extended to the assign but it never went further. Only
those who were previes in a state with the original
thefe to uses were bound by the use. A deceizar

(01:06:52):
was no more bound by the confidence reposed in his
disease than he was entitled to vouch his diseases Wanter.
In the time of Henry the Eights, it was said
that where a use shall be tis requisite that there
be two things s c. Confidence and privity. As I say,

(01:07:13):
if there be not privity or confidence, then there can
be no use. And hence, if the Thethies make a
fiefment to one who has notice of the use, now
the law will adjudge him seized to the first use,
since there is sufficient privity between the first Fifa and him.
For if he i e. The First Fifa had wanted

(01:07:36):
he the last thefi should vouch as a sign which
proves privity, and he is in the purr by the thethies.
But where one comes into the land in the post
as the lord by Eschit or the Diseasar, then the
use is altered and changed, because privity is wanting. To

(01:07:57):
this day it is said that a trust is annexed
in privity to the person and to the estate, which
means to the persona. It is not regarded as issuing
out of the land like a rent, so that while
a rent binds everyone who has the land, no matter
how it is, Caesar is not bound by the trust.
The case of the lord taking by Eschit has been doubted,

(01:08:21):
and it will be remembered that there is a difference
between Bracton and later authors as to whether he comes
in as qusai Herees or as a stranger. Then as
to the benefit of the use, we are told that
the right to sue the subpoena descended indeed to the
heir on the ground of herez E and them Vessona,

(01:08:43):
Kum and de Gesore, but that it was not assets.
The kisstue Keuz was given power to sell by an
early statute but with regard to trust, Lord Cope tells
us that in the reign of Queen elizabeths Or, all
the judges in England held that a trust could not
be assigned, because it was a matter in privity between them,

(01:09:06):
and was in the nature of a chose in action.
Uses and trusts were both divisible. However, from an early
day and now, trusts are as alienable as any form
of property. The history of early law everywhere shows that
the difficulty of transferring a mere right was greatly felt

(01:09:28):
when the situation of fact from which it sprung could
not also be transferred. Analysis shows that the difficulty is real.
The fiction which made such a transfer conceivable has now
been explained, and its history has been followed until it
has been seen to become a general mode of thought.

(01:09:48):
It is now a matter of course that the buyer
stands in the shoes of the seller, or in the
language of an old law book, that the assign is
in a manner quasi's successor to his assigner. Whatever peculiarities
of our law rest on that assumption may now be understood.

(01:10:08):
End of the Common Law by Oliver Wendell Holmes, Junior