Glenn v. Canby

Cochran, J., delivered the opinion of this Court. The demurrer in this case presents the question whether a covenant of a mortgagor, for himself, his representatives, and assigns, to pay a mortgage debt, binds, the assignee of’ the mortgaged property; or in other words, whether by force of the term assigns, such a covenant runs with the-land. The mortgage exhibited here, shows that the debt secured was a loan made to enable the mortgagor to improve the-property described in the mortgage ; it also contains a clause declaring that the covenant to pay the debt, with others, relating to insurance and taxes, should run with the land ; and it was insisted, on these grounds, that the-covenant in question, should be held to bind the appellee, to whom the property was subsequently assigned by the-mortgagor. We have concluded, however, that these considerations have no immediate bearing on the .point to be-decided.

The legal operation and effect of the covenant,, in that particular, must be determined by its subject matter, and not by the terms in which it is expressed. The-established doctrine is, that a covenant to run with the land must extend to the land, so that the thing required to-be done will affect the quality, value, or mode of enjoying the estate conveyed, and thus constitute a condition-annexed, or appurtenant to it; there must also be a privity of estate between the contracting parties, and the