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Updated: May 2, 2025
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.
In Bromage v. Genning, a prohibition was sought in the Kings' Bench against a suit in the marches of Wales for the specific performance of a covenant to grant a lease, and Coke said that it would subvert the intention of the covenantor, since he intends it to be at his election either to lose the damages or to make the lease.
"Thank you, Mr. Black," returned Wallace; "of course I shall only be too glad to escape from the consequences of my unfortunate position; but do not misunderstand me: although neither a spy nor a Covenantor I am a loyal subject, and would not now be a deserter if that character had not been forced upon me, first by the brutality of the soldiers with whom I was banded, and then by the insolence of my comrade-in-arms to your daughter "
Privity of estate, as used in connection with covenants at common law, does not mean tenure or easement; it means succession to a title. /2/ It is never necessary between covenantor and covenantee, or any other persons, except between the present owner and the original covenantee.
According to the general opinion there must be a privity of estate between the covenantor and covenantee in the latter class of cases in order to bind the assigns of the covenantor.
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