infraction of that agreement; or are mere personal covenants binding the company only as such, and not authorizing the plaintiff, as successor in ownership of the grist-mill, to sue for the infraction of the agreement. "A covenant is said to run with the land when either the liability to perform it or the right to enforce it passes to the assignee of the land": 8 Am. & Eng. Ency. of Law, 134. When the company made those covenants it passed no estate in the mill property to Hurxthal. The company and he were strangers in estate. To create a covenant real there must be a privity in estate between the parties otherwise it is simply a personal obligation, neither binding nor benefiting the land in the hands of heirs, devisees or assigns: Lydick v. Baltimore etc. R. R. Co., 17 W. Va. 427; West Virginia Trans. Co. v. Ohio River etc. Co., 22 W. Va. 631, 46 Am. Rep. 527; 2 Minor's Institutes, 715. "It is not sufficient that the covenant is concerning land, but to make it run with the land there must be a privity of estate between the parties, and the covenant must have relation to an interest created or conveyed in order that the covenant may pass to the grantee of the covenantee": 8 Am. & Eng. Ency. of Law, 147. "A covenant does not run with the land unless contained in a grant thereof, or of 93 some estate therein": Fresno Canal Co. v. Rowell, 80 Cal. 114, 13 Am. St. Rep. 112, 22 Pac. 53. It is true that this covenant has one element of a covenant real in the fact that it benefits the estate of the covenantee, the mill property; but it lacks another material element-privity in estate as the company conveyed no interest in the mill, but merely made a personal obligation on the company touching the mill. So this covenant is not, in its inherent nature, a real covenant. But does its language make it such? The agreement makes the obligation of Hurxthal to pay for maintaining the dam run with the land. It seems under law above stated this would not perhaps make it a covenant real; but it was clearly a lien in its terms as an equitable mortgage. There is no such provision as to the covenants made by the company, and we infer it was not so intended. But there is the clause assignees of Hurxthal What is the effect of in law that if a cove

in the agreement giving the right to the to continue the agreement for five years. that clause? It seems to be well settled rant is not, in nature and kind, a real covenant, the mere declaration of the parties that it shall run with the land will not make it a real covenant, though so stated in the document: 8 Am. & Eng. Ency. of Law, 134; 2 Washburn on Real Prop

erty, secs. 1203, 1205; Gibson v. Holden, 115 Ill. 199, 56 Am. Rep. 146, 149. Under this authority I do not see how a covenant not one of such nature as to run with land could by declaration in the agreement be made such, so as to place an obligation on the land in the hands of subsequent owners; but this covenant is one not placing the burden on the Hurxthal mill, but benefiting it, and the company agreed that benefit should go to the use of the assigns of Hurxthal. The point is not without difficulty; but it does seem to me that under these circumstances this consent of the company, while it would not place a burden on the company property, would give the mill property of Hurxthal the benefit of the covenant, so as to enable the plaintiff as alienee to sue upon it. I do not know that it will add anything to the strength of the position, in a legal point of view, to rely upon the fact that the company accepted from the plaintiff pay for one year's maintenance of the dam. If the covenant does not give her right, it would be doubtful whether an oral agreement would do so under the statute of fraud, as being a contract not performable in one year, though the statute is not 94 pleaded. This is not material, however, because I hold that the plaintiff is entitled to sue for a breach of covenant occurring during her ownership, by reason of the clause giving the benefit of the agreement to the assignee of Ben Hurxthal. There can be no question but that the plaintiff is a privy in the estate with Ben Hurxthal, and an "assign" within the meaning of that word used in said agreement; for she purchased at the judicial sale, which by law cast upon her the entire estate of Ben Hurxthal, and she is as much an assignee of the property from Ben Hurxthal as if he had conveyed it to her: 8 Am. & Eng. Ency. of Law, 146; Rawle on Covenants for Title, sec. 213; Tiedeman on Real Property, sec. 860; Mygatt v. Coe, 142 N. Y. 78, 36 N. E. 870. So the plaintiff can recover if the defendant failed in its covenants after the plaintiff acquired the property, March 16, 1899, the date of her purchase at the court sale. Upon these questions of fact, in view of a new trial, we decline to pass. Therefore plaintiff's first instruction is good, and defendant's first and second bad, because denying right to sue.

Another question arising in the case comes from the claim of the company that the matter in controversy in this suit was adjudicated finally, and the plaintiff barred by reason of the decree in the suit of the administratrix mentioned above brought to convene the creditors of Ben Hurxthal's estate. The

bill brought before the court for adjudication the question whether the company had a valid debt against the estate. Though the bill presented this matter very indefinitely, yet it presented it and made the company the defendant, and it could not have presented it for any other purpose than for adjudication. I apprehend that a bill of that character need not specify the debts against the estate with particularity which would be called for in suits of a different character, the suit in question being only one to bring the assets of a decedent before the court for adjudication, and the creditors and their debts come in before the commissioners without pleading or formal issue. Section of chapter 86 of the Code makes such a suit the vehicle of relief to all creditors, whether parties or not, or whether their debts are specified or not in the bill. The section provides that evidence respecting the claim of any creditor may be taken just as if such creditor were made a formal party and his rights set up in the bill. The reference to a commissioner enables that creditor 95 to present his claim and present his evidence, and gives to that evidence just the same effect as if the matter were set up in the bill. In this instance the company was made a formal party. Even if it were not so, I doubt not but that the company would have been barred of its demand had it not presented it in the case, because section 9 of that chapter so operates. For stronger reasons would it have been so barred, as it was made a party and its claim presented to the court. If it would be a bar on one side, it ought to be also on the other. The answer of the company set up its demand as arising out of that agreement with full definiteness for compensation for the maintenance of the dams for four years at seventy-five dollars per year. Much evidence was taken on both sides upon the question whether the company was entitled to that compensation. Depositions were taken on the side of the estate to show that the company had not maintained the dam of the requisite height to give sufficient water to the grist-mill, and had not been maintained in the manner demanded by the written agreement; and depositions were taken by the company to repel this charge and to show that the agreement had been complied fully. Thus, a specific controversy arose before the commissioner. It is true this controversy was not made by formal issue in pleading; that is never done or very rare in such a suit; but the bill, the answer, the depositions show what that controversy was. The company demanded three hundred dollars for maintaining the dam, and the estate sought by recoupment to entirely or partially defeat the de

Am. St. Rep., Vol. 97-61

mand by reason of the breach of the agreement by the company. There could be no other issue. The commissioner rejected the company's debt. Why? Only because he thought the contract had not been complied with by the company. There could be no other reason, since the contract provided that Hurxthal was to pay a fixed amount, and there was no claim of payment, and nothing could defeat the demand under the facts shown, but breach of the agreement. If the company complied with its contract, it was entitled to its debt; if it had not, then its demand would be defeated by recoupment in whole or in part. The court held the company entitled to its full demand, and thus inevitably decided that there was no cause based on the company's failure to comply with its agreement to deny its demand. The estate could have omitted to make defense by recoupment and have 96 sued in an action of law, and the decree then would not have bound the estate; but it presented this defense and took much evidence to sustain it. The matter was fully litigated and passed on by the court. Is the matter after long litigation in that suit again open? That decree settled that the dams had been maintained and repaired at the height and in the manner required by the agreement, and that it had not been violated up to the death of Ben Hurxthal. The plaintiff, as a privy in estate under him, is bound by this decree as showing that there was no default or violation of the agreeInent before Hurxthal's death. The plaintiff must prove a breach later, not a mere continuance of the state of things before his death.

It is contended that the declaration seeks damages including time during Hurxthal's life; but I construe it as claiming damages only accruing during the plaintiff's ownership. I do not think there was any call for a new assignment of damages during plaintiff's ownership. The declaration is limited to the plaintiff's ownership. I therefore think that the defendant's instructions 4 and 5 saying that said adjudication precluded the plaintiff from any recovery are bad. That adjudication only applies to Ben Hurxthal's lifetime. It was a contest between his estate and the company. I think that defendant's instruction 6 is bad. It declares that the decree would preclude recovery, unless the evidence showed that there was some failure of the defendant to keep the covenant which did not exist when the evidence was taken in the chancery case, but which occurred afterward. The objection to this instruction is that it goes back only as far as the taking of evidence, instead of the date of Hurxthal's death. If there was a breach

after his death which entailed damage on the plaintiff after she became owner, she could sue. Defendant's instruction 8 is good, except that it fixes the date of the commissioner's report as the date up to which the decree operates as res judicata, instead of the date of Hurxthal's death.

The plaintiff has given instruction 2, saying that if the plaintiff succeeded to the rights of Ben Hurxthal under the agreenent, and that the dam in Greenbrier river was not high enough to give a seven foot head of water as provided in the contract, and that it was not substantially complied with to furnish such head of water, then there was a total breach of the agreeament 97 in that respect, and "the plaintiff may elect to treat the entire contract as abrogated, and has right to recover whatever damages she has sustained, if any, since March 16, 1899, up to the present time, excluding the time during which Pierpoint and Ammonet had a lease of the mill; also all future damages which they believe must necessarily result from such total breach from the present time down to the end of the five years' renewal of said contract-that is, to June 13, 1904." This instruction is erroneous. It also told the jury that if there had been such total breach they must find for the plaintiff, and in estimating damages must exclude from consideration the plaintiff's evidence tending to show partial breaches occurring since the institution of the action, such as allowing debris to collect against the trestles and the bridge across the race, and leaving open the gates at the foot of the log pond. This material instruction treated the agreement as an entire contract, and allowed the jury to say that if once broken as to the dams and trash, it was broken in toto and for the whole time of its duration, and that entire or permanent damages for that duration, for the past and future, might be at once recovered. If this be so, then it would follow that the decision in the chancery suit would operate as a complete bar to any recovery. But I do not think so, as I have above stated and limited the operation of the chancery suit. The instruction allows a recovery clear through till the 13th of June, 1904, for damages before and after this commencement of the suit. Such is not the character of this contract. The plaintiff is entitled to only such damages as were actually received from the breach of the agreement. That was error. There may be a recovery of the entire or permanent damages in case of injury permanently and durably affecting the estate in value, and the declaration must show an intent to claim for such permanent injury. Our cases hold that if the cause of injury is in nature permanent, and a