Although it may be doubted whether the mention of a.s.signs was ever necessary to attach an eas.e.m.e.nt to land, and although it is very certain that it did 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 eas.e.m.e.nts, such as a right of way. It then might have been said that these were certain limited interests 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 servient owner. His obligation, although more troublesome to him than to others, is the same as that of every one else. It is the purely negative duty not to obstruct or interfere with a right of property. /2/
[388] But although the test of rights going with the land may have been something of that nature, this will not help us to understand the cases without a good deal 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 ear strangely 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 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 hands soever it may come. The lord is said to have a fee in the homage and services; and therefore no entry upon the land which does not disturb them injures him. /1/ It is the tenement which imposes the obligation of homage, /2/ and the same thing is true of villein and other feudal services. /3/
The law remained unchanged when feudal services took the form of rent. /4/ Even in our modern terms for years rent is still treated as something issuing out of the leased 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 rent no longer, because you no longer have the tenement out of which it comes. /5/
[389] It is obvious that the foregoing reasoning leads to the conclusion that a disseisor of the tenant would be bound as much as the tenant himself, and this conclusion was adopted by the early law. The lord could require the services, /1/ or collect the rent /2/ of any one who had the land, because, as was said in language very like Bracton"s, "the charge of the rent goes with the land." /3/
Then as to the right to the rent. Rent was treated in early law as a real right, of which a disseisin was possible, and for which a possessory action could be brought. If, as was very frequently the case, the leased land lay within a manor, the rent was parcel of the manor, /4/ so that there was some ground for saying that one who was seised of the manor, that is, who possessed the lands occupied by the lord of the manor, and was recognized by the tenants as lord, had the rents as incident thereto. Thus Brian, Chief Justice of England under Henry VII., says, "If I am disseised of a manor, and the tenants pay their rent to the disseisor, and then I re-enter, I shall not have the back rent of my tenants which they have paid to my disseisor, but the disseisor shall pay for all in trespa.s.s or a.s.size." /5/ This opinion was evidently founded on the notion that the rent was attached to the chief land like an eas.e.m.e.nt. Sic fit ut debeantur rei a re. /6/
Different principles might have applied when the rent was not parcel of a manor, and was only part of the reversion; that is, part of the landlord"s fee or estate out of [390] 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. A disseisor 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 payment to him would be no defence against the true owner. /1/ Nevertheless, if the tenant recognized him, the disseisor would be protected as against persons who could not show a better t.i.tle. /2/ 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 escheat. /3/ Yet escheat meant the extinction of the fee of which the lease and rent were parts, and although Bracton regarded the lord as coming in under the tenant"s t.i.tle pro herede, in privity, it was soon correctly settled that he did not, but came in paramount. This instance, therefore, comes very near that of a disseisor.
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 such notion was applied to warranties, or to any right which was regarded wholly from the point of view of contract. And when we turn 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 [391] could not be maintained without privity.
In the ninth year of Henry VI. /1/ 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, /2/ and in Henry VII."s reign the remedy was extended to the devisee, /3/ who, as has been remarked above, seemed more akin to the heir than a grantee, and was more easily likened to him. It was then logically necessary to give a.s.signs the same action, and this followed. /4/ The privity of contract followed the estate, so that the a.s.signee of the reversion could sue the person then holding the term. /5/ On like grounds he was afterwards allowed to maintain covenant. /6/ But these actions have never lain for or against persons not privy in estate with the lessor and lessee respectively, because privity to the contract could never be worked out without succession to the t.i.tle. /7/
However, 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. /8/ 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 a.s.size, asking to be put back into possession.
[392] 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 approach much nearer to the nature of the latter than a mere duty not to interfere with a way. Other cases come nearer still. The sphere of prescription and custom in imposing active duties is large in early law. Sometimes the duty is incident to the ownership of certain land; sometimes the right is, and sometimes both are, as in the case of an eas.e.m.e.nt. When the service was for 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 boar for the use of his parish.
/1/ A right could be attached to a manor by prescription to have a convent sing in the manor chapel. /2/ A right might be gained by like means to have certain land fenced by the owner of the neighboring lot. /3/ 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 the subject of grant. /4/ 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 [393] tenant. And it may be conjectured that this view arose naturally and reasonably from there having been originally no remedy to compel performance of such services, except a distress executed on the servient land. /1/ 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 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 repair, and a duty to fence? The difficulty remains almost as great as ever of finding the dividing line between the competing principles of transfer,--succession on the one side, and possession of dominant land on the other. If a right in the nature of an eas.e.m.e.nt 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 disseisor, it must have gone with it in the other. No satisfactory distinction could be based on the mode of acquisition, /2/ nor was any attempted. As the right was not confined to a.s.signs, there was no need of mentioning a.s.signs. /3/ In modern times, at least, if not in early law, such rights can be created by covenant as well [394]
as by grant. /1/ And, on the other hand, it is ancient law that an action of covenant may be maintained upon an instrument of grant. /2/ 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.s.signs, although not mentioned, at a time when such mention was essential to give them the benefit of a warranty. Logically, these premises led one step farther, and not only a.s.signs not named, but disseisors, 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 ent.i.tled him to covenant, it was open to argument that he should be allowed the same action when he had the right by prescription, although, as has been seen in the case of rent, it did not follow in practice from a man"s having a right that he had the contractual remedies for it. /3/ Covenant required a specialty, but prescription was said to be a sufficiently good specialty. /4/ Where, then, was the line to be drawn between covenants that devolved only to successors, 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 [395] by which particular land alone was bound. /1/ The personal warranty bound only the warrantor and his heirs. As was said in a case of the time of Edward I., "no one can bind a.s.signs to warranty, since warranty always extends to heirs who claim by succession and not by a.s.signment." /2/ But when particular land was bound, the warranty went with it, even into the hands of the King, because, as Bracton says, the thing goes with its burden to every one. /3/ Fleta writes that every possessor will be held. /4/ There cannot be a doubt that a disseisor would have been bound equally with one whose possession was lawful.
We are now ready for a case /5/ decided under Edward III., which has been discussed from the time of Fitzherbert and c.o.ke down to Lord St. Leonards and Mr. Rawle, which is still law, and is said to remain still unexplained. /6/ 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.
Pakenham brought covenant as heir of the covenantee against a prior, for 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 manor, for him and his servants. The defendant first pleaded that the plaintiff and his servants were not dwelling within the manor; but, not daring to [396] 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 manor, and that his great-grandfather enfeoffed a stranger, who enfeoffed the plaintiff and his wife; and that thus the plaintiff was tenant of the manor 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 a.s.signs were not mentioned in the covenant, and so it has always been taken. /1/ It also appears that the plaintiff was trying to stand on two grounds; first, privity, as descendant and a.s.sign of the covenantee; second, that the service was attached to the manor by covenant or by prescription, and that he could maintain covenant as tenant of the manor, from whichever source the duty arose.
Finchden, J. puts the case of parceners making part.i.tion, 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. /2/ (That is to say, such obligations follow the a.n.a.logy of eas.e.m.e.nts, and, as the burden falls on the quasi servient estate, the benefit goes with the dominant land to a.s.signs, 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,--falls on the person, not on the land. /3/)
Finchden: a fortiori in this case; for there the action [397] was maintained because the plaintiff was tenant of the land from which the suit was due, and here he is tenant of the manor where the chapel is.
Wichingham, J.: If the king grants warren to another who is tenant of the manor, he shall have warren, &c.; but the warren will not pa.s.s by the grant [of the manor], because the warren is not appendant to the manor. No more does it seem the services are here appendant to the manor.
Thorpe, C. J., to Belknap: "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 inheritance in the land, so that whoever has the land by alienation, or in other manner, shall have action of covenant; [or, as it is stated in Fitzherbert"s Abridgment, /1/ the inhabitants of the land as well as every one who has the land, shall have the covenant;] and when you say he is not heir, he is privy of blood, and may be heir: /2/ and also he is tenant of the land, and it is a thing which is annexed to the chapel, which is in the manor, and so annexed to the manor, and so he has said that the services have been rendered for all time whereof there is memory, whence it is right this action should be maintained." Belknap 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. /3/
It will be seen that the discussion followed the lines marked out by the pleading. One judge thought that [398] the plaintiff was ent.i.tled to recover as tenant of the manor. The other puisne doubted, but agreed that the case must be discussed on the a.n.a.logy of eas.e.m.e.nts. The Chief Justice, after suggesting the possibility of sufficient privity on the ground that the plaintiff was privy in blood and might be heir, turns to the other argument as more promising, and evidently founds his opinion upon it. /1/ 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 disseisor would have had the same rights as the plaintiff.
In the reign of Henry IV., another case /2/ arose upon a covenant very like the last. But this time the facts were reversed. The plaintiff counted as heir, but did not allege that he was tenant of the manor. The defendant, not denying the plaintiff"s descent, pleaded in substance that he was not tenant of the manor in his own right. The question raised by the pleadings, therefore, was whether the heir of the covenantee could sue without being tenant of the manor. If the covenant was to be approached from the side of contract, the heir was party to it as representing the covenantee. If, on the other hand, it was treated as amounting to the grant of a service like an eas.e.m.e.nt, it would naturally go with the manor if made to the lord of the manor. It seems to have been thought that such a covenant might go either way, according as it was made to the tenant of the manor 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. But, peradventure, if the covenant [399] had been made with the lord of the manor, who had inheritance in the manor, ou issint come determination poit estre fait, it would be otherwise," which was admitted. /1/ It was a.s.sumed that the covenant was not so made as to attach to the manor, and the court, observing that the service was rather spiritual than temporal, were inclined to think that the heir could sue. /2/ 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 a reported by Lord c.o.ke. In the argument of Chudleigh"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 covenantee,) "and the same law of a use.... But of things annexed to land, it is otherwise, as of commons, advowsons, and the like appendants or appurtenances.... So a disseisor, abator, intruder, or the lord by escheat, &c., shall have them as things 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, advowsons, and other hereditaments annexed to the possession of the land." /3/ And this, it seems to me, is the nearest approach which has ever been made to the truth.
c.o.ke, in his Commentary on Littleton (385 a), takes a distinction between a warranty, which binds the party to yield lands in recompense, and a covenant annexed to the land, which is to yield but damages. If Lord c.o.ke had [400] 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 damages, and a covenant in the old law sometimes yielded land. 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. /1/ Covenant was brought for a freehold under Edward I., /2/ and under Edward III. it seems that a mill could be abated by the same action, when maintained contrary to an eas.e.m.e.nt created by covenant. /3/ But Lord c.o.ke did not mean to lay down any sweeping doctrine, for his conclusion is, that "a covenant is in many cases extended further than the warrantie."
Furthermore, this statement, as Lord c.o.ke meant it, is perfectly consistent with the other and more important distinction between warranties and rights in the nature of eas.e.m.e.nts or covenants creating such rights. For Lord c.o.ke"s examples are confined to covenants of the latter sort, being in fact only the cases just stated from the Year Books.
Later writers, however, have wholly forgotten the distinction in question, and accordingly it has failed to settle the disputed line between conflicting principles. Covenants which started from the a.n.a.logy of warranties, and others to which was applied the language and reasoning of eas.e.m.e.nts, have been confounded together under the t.i.tle of [401] covenants running with the land. The phrase "running with the land" is only appropriate to covenants which pa.s.s like eas.e.m.e.nts. But we can easily see how it came to be used more loosely.
It has already been shown that covenants for t.i.tle, like warranties, went only to successors of the original covenantee.
The technical expression 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 covenants went with the land. This was done, and forthwith all distinctions became doubtful. It probably had been necessary to mention a.s.signs in covenants for t.i.tle, as it certainly had been to give them the benefit of the ancient warranty; /1/ for this seems to have been the formal mark of those covenants which pa.s.sed only to privies. But it was not necessary to mention a.s.signs in order to attach eas.e.m.e.nts and the like to land. Why should it be necessary for one covenant running with the land more than another? and if necessary for one, why not for all? /2/ The necessity of such mention in modern times has been supposed to be governed by a fanciful rule of Lord c.o.ke"s. /3/ On the other hand, the question is raised whether covenants which should pa.s.s irrespective of privity are not governed by the same rule which governs warranties.
These questions have not lost their importance. Covenants for t.i.tle are in every deed, and other covenants are [402] only less common, which, it remains to show, belong to the other cla.s.s.
Chief among these is the covenant to repair. It has already been observed that an eas.e.m.e.nt of fencing may be annexed to land, and it was then asked what was the 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 to the original parties. For the lease could not, and the reversion would not be likely to, go by disseisin.
The Dean of Windsor"s Case decides that such a covenant binds an a.s.signee of the term, although not named. It is reported in two books of the highest authority, one of the reporters being Lord c.o.ke, the other Croke, who was also a judge. Croke gives the reason thus: "For a covenant which runs and rests with the land lies for or against the a.s.signee at the common law, quia transit terra c.u.m onere, although the a.s.signees be not named in the covenant." /1/ This is the reason which governed eas.e.m.e.nts, and the very phrase which was used to account for all possessors being bound by a covenant binding a parcel of land to warranty.
c.o.ke says, "For such covenant which extends to the support of the thing demised is quodammodo appurtenant to it, and goes with it."
Again the language of eas.e.m.e.nts. And to make this plainer, if need be, it is added, "If a man grants to one estovers to repair his house, it is appurtenant to his house." Estovers for [403]
repair went with the land, like other rights of common, /1/ which, as Lord c.o.ke has told us, pa.s.sed even to disseisors.
In the next reign the converse proposition was decided, that an a.s.signee of the reversion was ent.i.tled in like manner to the benefit of the covenant, because "it is a covenant which runs with the land." /2/ The same law was applied, with still clearer reason, to a covenant to leave fifteen acres unploughed for pasture, which was held to bind an a.s.signee not named, /3/ and, it would seem, to a covenant to keep land properly manured. /4/
If the a.n.a.logy which led to this cla.s.s of decisions were followed out, a disseisor 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 the proposition which need prevent its being accepted. It has been mentioned above, that words of covenant may annex an eas.e.m.e.nt to land, and that words of grant may import a covenant. It would be rather narrow to give a disseisor one remedy, and deny him another, where the right was one, and the same words made both the grant and the covenant. /5/
The language commonly used, however, throws doubt and darkness over this and every other question connected with the subject. It is a consequence, already referred to, of confounding covenants for t.i.tle, and the cla.s.s last discussed, [404] under the name of covenants running with the land. According to the general opinion there must be a privity of estate between the covenantor and covenantee in the latter cla.s.s of cases in order to bind the a.s.signs of the covenantor. Some have supposed this privity to be tenure; some, an interest of the covenantee in the land of the covenantor; and so on. /1/ The 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 eas.e.m.e.nt; it means succession to a t.i.tle. /2/ It is never necessary between covenantor and covenantee, or any other persons, except between the present owner and the original covenantee. And on principle it is only necessary between them in those cases--such as warranties, and probably covenants for t.i.tle--where, the covenants being regarded wholly from the side of contract, the benefit goes by way of 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 cla.s.ses of covenants, the answer is necessarily vague in view of the authorities. The following propositions may be of some service.
*A. With regard to covenants which go with the land:--
*(1.) Where either by tradition or good sense the burden of the obligation would be said, elliptically, to fall on the land of the covenantor, the creation of such a burden is in theory a grant or transfer of a partial interest in [405] that land to the covenantee. As the right of property so created can be a.s.serted against every possessor of the land, it would not be extravagant or absurd to allow it to be a.s.serted by the action of covenant.
*(2.) Where such a right is granted to the owner of a neighboring piece of land for the benefit of that land, the right will be attached to the land, and go with it into all hands. The action of covenant would be allowed to a.s.signs not named, and it would not be absurd to give it to disseisors.
*(3.) There is one case of a service, the burden of which does not fall upon land even in theory, but the benefit of which might go at common law with 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 regard to covenants which go only with the estate in the land:--
In general the benefit of covenants which cannot be likened to grants, and the burden of which does not fall on land, is confined to the covenantee and those who sustain his persona, namely, his executor or heir. In certain cases, of which the original and type was the ancient warranty, and of which the modern covenants for t.i.tle are present examples, the sphere of succession was enlarged by the mention of a.s.signs, and a.s.signs are still allowed to represent the original covenantee for the purposes of that contract. But it is only by way of succession that any other person than the party to the contract can sue upon it. Hence the plaintiff must always be privy in estate with the covenantee.
[406] C. It is impossible, however, to tell by general reasoning what rights will be held in English law to belong to the former cla.s.s, 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 land, /1/ yet if this test 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 eas.e.m.e.nt, is called a covenant not to build on the servient land to the injury of the light, by Baron Parke. /2/ And although this might be doubted, /3/ it has been seen that at least one well-established eas.e.m.e.nt, that of fencing, cannot be considered as a right granted out of the servient 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 repair exists only by way of covenant, yet the reasoning of the leading cases is drawn from the law of eas.e.m.e.nt. On the other hand, a covenant by a lessee to build a wall upon the leased premises was held, in Spencer"s Case, not to bind a.s.signs unless mentioned; /4/ but Lord c.o.ke says that it would have bound them if it had purported to. The a.n.a.logy of warranty makes its appearance, and throws a doubt on the fundamental principle of the case. We can only say that the application [407] of the law is limited by custom, and by the rule that new and unusual burdens cannot be imposed on land.
The general 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 eas.e.m.e.nts presented itself as one case to be explained, and that has now been a.n.a.lyzed, and its influence on the law has been traced. 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 has been seen exemplified in prescription, warranty, and such covenants as followed the a.n.a.logy mentioned Another ill.u.s.tration which has not yet been is to be found in the law of uses.
In old 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 proof of such a secret trust ought to be allowed, even as against the heir. /1/ It was allowed, however, in the end, /2/ and then the principle of succession was extended to the a.s.sign. But it never went further.
Only those who were privies in estate with the original feoffee to uses, were bound by the use. A disseisor was no more bound by the confidence reposed in his disseisee, than he was ent.i.tled to vouch his disseisee"s warrantor. In the time of Henry VIII. it was said that "where a use shall be, it is requisite that there be two things, sc. confidence, and privity:... as I say, if there be not privity or confidence, [408] then there can be no use: and hence if the feoffees make a feoffment to one who has notice of the use, now the law will adjudge him seised to the first use, since there is sufficient privity between the first feoffor and him, for if he [i.e. the first feoflor] had warranted he [the last feoffee] should vouch as a.s.sign, which proves privity; and he is in in the per by the feoffees; but where one comes into the land in the post, as the lord by escheat or the disseisor, then the use is altered and changed, because privity is wanting." /1/
To this day it is said that a trust is annexed in privity to the person and to the estate /2/ (which means to the persona). It is not regarded as issuing out of the land like a rent, so that while a rent binds every one who has the land, no matter how, a disseisor is not bound by the trust. /3/ The case of the lord taking by escheat has been doubted, /4/ and it will be remembered that there is a difference between Bracton and later authors as to whether he comes in as quasi heres 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 heres eadem persona c.u.m antecessore, but that it was not a.s.sets.