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ment gave the right to the company to maintain the trestle that crossed the race leading to the said grist-mill at the point where the trestle then stood, and also to maintain the bridge across the race which then stood across it, and to use said trestle and bridge, and bound the company to keep the trestle and bridge free from such trash as might impede the flow of water through the race to said grist-mill. For maintaining said dams the agreement bound Ben Hurxthal to pay the company seventyfive dollars per year, and said “the obligation to pay the same shall, in addition to being a personal one, be a covenant running with the land and binding upon said Ronceverte Flour Mills, mill-race and water-power into whosesoever hands they may pass.” The agreement contained the language: “This agreement shall continue in force for the period of five years next ensuing the date thereof, and at the option of the said party of the second part, his heirs, representatives or assigns, to be exercised by notice in writing to said party of the first part given within the said five years, shall continue in force ten years from date thereof."

Several years after the date of the agreement Ben Hurxthat died and Josie M. Hurxthal, as his administratrix, brought a chancery suit to convene all the creditors of said decedent's estate, ascertain their debts and sell his real estate, including said grist-mill property, to pay such debts, and under a decree in that case the 91 said grist-mill was sold on March 16, 1899, and purchased by Josie M. Hurxthal, the plaintiff in the action of covenant. On the 13th of June, 1899, Josie M. Hurxthal gave a written notice to the said company that she would extend the operation of the said agreement for the additional period of five years as provided therein. She paid seventy-five dollars to said company for the maintenance of said dams for one year after the 13th of June, 1899. In her bill in the said chancery suit brought by Mrs. Hurxthal as her husband's administratrix to convene her husband's creditors she specified various debts against her husband's estate and its lands as stated that “the St. Lawrence Boom and Manufacturing Company claims a debt against said Ben Hurxthal, which was contested by him.” The said company presented its claim in that suit before the commissioner for three hundred dollars against Hurxthal's estate for compensation under said agreement for the maintenance of said dams for four years during the life time of the said Hurxthal. The estate of Hurxthal contested this demand of the company and took evidence to repel it and

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the company took evidence to sustain it. The commissioner disallowed the claim. Then the company filed its answer to the bill, setting up the said agreement and claiming the said three hundred dollars for keeping up the said dams for the said four years, the said company having been made a formal party defendant to the bill filed by said administratrix. The case was referred back to the commissioner to report the debts of said estate, and before him both sides took evidence to sustain and repel such demand, and the result was that the commissioner again rejected said demand as a claim against the estate; but upon an exception to his report by the company the court allowed the said demand and decreed it as a debt against Hurrthal's estate, but only as a general debt, and not as a lien on the grist-mill property. Then the company appealed the case to this court because of the refusal of the circuit court to decree its debt as a lien under said agreement, and accord to it its proper preference over other debts, and this court declared it such lien, as will be seen in Hurxthal v. Hurxthal, 45 W. Va. 584, 32 S. E. 237. Afterward, as first above stated, Josie M. Hurxthal brought said action of covenant against said company, claiming that the company had not kept the covenant contained in said agreement of the 13th of June, 1894, but had broken the same in failing to maintain the said 92 dam across Greenbrier river and said two dams at the foot of said log pond at the height stipulated by said agreement, and in suffering and permitting debris to accumulate in the mill-race at the points where the company's bridge and trestle crossed said race, thereby preventing the flow of a sufficient quantity of water to the plaintiff's grist-mill to operate the same.

A question going to the very root of the case, because involving the very right of the plaintiff to sue upon the agreement on which her suit is based, arises upon the plaintiff's first instruction saying, that if she, before the 13th of June, 1899, gave the company written notice that she elected to extend the agreement of the 13th of June, 1894, for five years after the 13th of June, 1899, then the plaintiff had succeeded to the rights of Ben Hurxthal under that agreement. This involves the question whether the covenants in said agreement binding the company to maintain the dams as therein provided, and not to suffer or permit the accumulation of trash in the millrace, are covenants real running with the grist-mill property and inuring to the benefit of the plaintiff as its owner derivately from Ben Hurxthal, and thus entitling her to sue for an

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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 in the agreement giving the right to the assignees of Hurxthal to continue the agreement for five years.

What is the effect of that clause? It seems to be well settled in law that if a covenant 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, 131; 2 Washburn on Real Prop

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erty, secs. 1203, 1205; Gibson v. Holden, 115 III. 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, kowever, 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 conreyed 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

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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 y 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 80, 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 deniand 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

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