
    Cyrus Morse, v. Gilbert Garner.
    It appears to be an essential quality of a real covenant, that it relate to the realty, having for its object something annexed to, or inherent in, or connected with land, or other real property; and that a personal covenant does not bind the assignee of a covenanter, even though expressly named, but charges only the executor or administrator; and that it makes no difference if such personal covenant is connected with real covenants, so as to form one entire consideration.
    Ferries have no legal or necessary connection with land, but, like public roadsj arc public franchises which are granted to private persons for a limited time.
    A covenant, with the assignment of a ferry, by the owner of the landing places, in whom the ferry may be vested, has no more the qualities of a real covenant» than if it were made with a stranger to the land.
    Case maybe, in many instances, a convenient remedy, with assumpsit, on implied contracts; but not on special agreements; 6 Barn. &. Gres., 273.
    Tried before Mr. Justice Frost, at Columbia, Fall Term, 1846.
    This was an action on the case for disturbing the plaintiff’s right of ferriage, over the defendant’s ferry.
    It appeared that Pressly Garner died intestate, seized in fee of sundry tracts of land; and that, by purchase from the other distributees, the same became vested in Sarah Garner and Rebecca Morse, the wife of the plaintiff. A written instrument was produced, bearing date the 27th February, 1838, by which three persons, therein named, acting in behalf of the parties interested, made a division and allotment of certain parcels of land to each of them. To Sarah Garner, were assigned the house tract, forty acre tract, the ferry tract, and part of Water’s tract; and to Cyrus Morse, the hill tract, and Parker’s, Myer’s, and part of the Water’s tract. The division of the land, is followed by the statement of an agreement, between Cyrus Morse and Sarah Garner, that Cyrus Morse and wife, their overseer and negroes, should pass the ferry, free of toll, during their natural lives, or during their ownership of the lands, set off to them in the sa'd division. The instrument is signed by the pei’sons commissioned to make the division.
    By a memorandum in writing, signed by the parties interested, and dated 23d January, 1839, it is agreed that the foregoing partition should be confirmed by the Court of Equity, with the exception that the whole of Water’s tract should be assigned to Sarah Garner. A petition for partition by the parties, was filed in the Court of Equity, July 9th, 1839; wherein the agreement for partition, before stated, was recited, and a confirmation thereof prayed: the said agreement having been filed as an exhibit. The decree of the Court, referring to the agreement for partition, as set forth in the exhibit, orders that certain lands» (the same mentioned above,) should be allotted and assigned to Sarah Garner, in severally, in fee; and that the other lands named, should be allotted and assigned to Rebecca Morse, in severalty, in fee; and directs and prescribes the terms of the settlement of Rebecca Morse’s portion. The agreement for passing the ferry is not incorporated in the decree; nor, by the decree, charged on the lands assigned to Sarah Garner; nor is the agreement set out in the exhibit, in terms, confirmed.
    The defendant produced in evidence an agreement, under seal, between Sarah Garner and Cyrus Morse, dated 8th March, 1838. which recites the agreement for the privilege of passing the ferry toll free, reserved in the partition proposed by the Commissioners, and contains a covenant by Cyrus Morse, to furnish a hand to the ferry for one year, during freshets; and that Sarah Garner should have “an equal right of fishing at his fishing yard” during her natural life.
    Sarah Garner died in 1840, having devised the ferry tract to Thomas Garner. It was sold, under execution against Thomas Garner, by the sheriff, and bought by Gilbert Garner, the defendant, in 1842. The interest of the plaintiff, in one of the tracts assigned to Rebecca Garner, on the west side of Wateree River, was sold under execution by the U. S. Marshal, in 1840, and was purchased by Thomas Seay, in trust for Rebecca Morse. The plaintiff and wife live on this land, and cultivate it. They also cultivate a tract of the partitioned land, on the east side of the river. It was proved that, before the disturbance complained of, the plaintiff had wagoned a load of goods to Camden, and also one or two wagon loads of brick across the river. It did not appear that the wagons were stopped, or ferriage demanded; but, in consequence, the defendant’s ferryman had refused to permit the plaintiff’s plantation wagons and horses and negroes to pass; and had directed the negro at the ferry, to require the plaintiff to pay ferriage. This interruption of the plaintiff’s free use of the ferry, commenced about February, 1845. The plaintiff has a crossing place on his own land, and keeps a flat there; but it is farther by that way to States-burg, (where plaintiff gets his supplies,) than over the defendant’s ferry.
    The jury were instructed that the plaintiff was not entitled to recover, because the instrument of partition was merely an executory agreement, which did not transfer the title of the lands; and that, by it, no real covenant was created, by which to charge the ferry tract, in the possession of the defendant, with the agreement respecting the plaintiff’s crossing: that the instrument was inoperative, unless confirmed by the parties, which they had agreed to do by a decree of the Court of Equity. That, although the decree did refer to the agreement, as contained in the exhibit filed, such reference did not incorporate all the terms of the agreement, into the decree; though they might have been so incorporated, if the decree had expressly and in terms confirmed the agreement, as set out in the exhibit: but that the decree merely assigned and allotted certain lands, according to the division of them therein made, and did not charge the land assigned to Sarah Garner, with the agreement to permit the plaintiff to pass the ferry, toll free. That the decree, in this respect, operated as a deed: and that the defendant having bought the title of Thomas Garner, the devisee of Sarah Garner, under execution, took the land unaffected by notice, and unencumbered by the agreement set out in the instrument of division. That the agreement in the instrument of partition was a mere personal contract, which did not pass with and inhere in the land in the possession of the defendant, and that they should find for the defendant.
    The jury found for the defendant, and the plaintiff appealed, and moved for a new trial, on the grounds annexed:
    1. That the plaintiff was not entitled to recover.
    2. That the partition of 27th February, 1838, was executory, not executed, and could not, with or without the confirmation of 23d January, 1839, enable the plaintiff to maintain the action.
    3. That the decree of the Court of Equity, in the case ex parte Sarah Garner, Cyrus Morse and Rebecca Morse, dated 15th July, 1839, did not confirm the partition in Exhibit B., or the terms upon which it was made, further than to allot to the respective parties the lands therein set off to them, and did not confirm plaintiff’s ferry exemption, or right to pass toll free.
    4. Plaintiff will also ask for a new trial, because the agreement of 8th March, 1838, between Sarah Garner and the plaintiff, concludes any one claiming under Sarah Garner, from setting up this defence.
    W. F. DeSaussure, for the motion.
    The partition was absolute, final and binding between these parties, without any proceedings in Equity. The signature, in some way of the feme covert, is sufficient to enable the Court of Equity to bind her property, and Sarah Garner did sign. A parcener may do that by agreement, which the law would compel; and the husband may do it for his wife, if the shares be equal. If all are of age, it shall be binding whether the shares are equal or not. In this case, they were equal. Yide act of-, 2 Stat. 471, and 3 Stat. 708, Act of 1748. As soon as a copar cener is of age, he may have partition and compel a minor to appear, and be bound by a guardian; Act of 1791. The husband and wife may agree and divide, if they arc parceners; 1 Coke, Lyttle-ton, 109 and 170, b; and 171, a; and husbands alone may, if equal division were made, bind the inheritance of their wives. This partition was good, and all were of age. Vide Coke Lyt., sec. 243 to sec. 256, as to the whole doctrine of partition.
    Was this a covenant real, and would it bind the purchaser at Sheriff’s sale. There was privity of estate between the original parties. The matter was not distinct, but connected witli and issuing out of the land, and affected its value. It was a servitude impressed upon Mrs. Garner’s estate. If deeds inter partes had been executed, this land would have been conveyed to Mrs. Garner, with this incumbrance. As to covenants real, Vide 3 Law. Lib., Platt on Covenants, 28, 29, 30, and 208; Spenser’s case, in 5 Coke, folio 16. This right of ferriage is to equalize the partition, and cannot be separated from it— it is one of its constituents. Whether Airs. Garner could discontinue the ferry, is not now the question, but whether Morse shall have the free use of it while in existence; if she should refuse to keep it up, the other question may then arise. This ferry is in esse, and appurtenant to, and running with the land, and binds the assignee. (Vide the case from Coke,) although no privity between him and the original party. If the thing had not essence, it would be different, or if it had been any collateral agreement, an agreement to do any thing, not of or on the land—as to make a house on another’s tract of land. Here it is part and parcel of the premises. A purchaser at Sheriff’s sale is an assignee at law, and stands as any other assignee. The assignor cannot divest, in assignment, the land of an appurtenant incumbrance, as this ferry is; Mayor of Cumber-ton v. Patterson, 10 East., 130; Webb v. Russell, 3 T. R., 393-Where there is privity of estate, the parties are bound; 5 Coke, 24. Here, there was no covenant for the assignee, still it run with the land, and he was bound; 1 Salk., 309 and 316; Buckley v. Pink.; a covenant to repair runs with the land. A covenant is personal only when it is independent of the land itself, Barry v. Wells, 3 Wilson, 25; 10 East., 136. Incorporeal hereditament may be the subject of an agreement that runs with the land. Allnott on Partition, 5 L. L., 62, gives certain remedies for rent, because of the contract being with the land, &c.; also, to the assignee. Coke Lyt., 169, a, changes the estate for oalty of partition. Coke Lyt., 170, a. If the form of a rent be used upon a partition, it will amount to a grant. In this partition, the ferry never was given entirely to Airs. Garner, but a part of it was reserved to Morse.
    Smaut, contra.
    
    1 Cowen & Hill, Title, Decree. A decree is not allowed to be evidence of the nature of the estate. This Is a covenant personal; to sustain the plaintiff’s position, it should be a covenant real—it should be of the realty; Wheclock v.-_—, 16 Pick., 68. To draw water from a pond, is not a privilege running with the land. Taylor v. Fluell, 2 Blackfort’s Ohio Rep., 301; Lee’s Nisi Prius, 208. In this case the estate had changed hands; 7 Petersdorff Abridg., 94, margin.
   Frost J.

delivered the opinion of the Court.

A majority of the Court concur with the Circuit Judge, that the proposed partition, set out in the instrument, dated 27th February, 1838, was not confirmed by either of the deeds, relied on for that purpose, so as to give to the agreement, contained in that instrument, that the plaintiff should cross the ferry, toll free, the force and effect of a covenant; and that the decree of the Court of Equity operated only to vest in the parties, in severalty, the lands which were, by the deed, assigned to them respectively.

This view of the case is conclusive against the plaintiff’s grounds of appeal; since on the confirmation of the agreement respecting the ferry, by the deeds of the parties or by the decree, as one of the terms of partition, the agreement is rested, that it operates as a covenant real, and binds the defendant as assignee of the ferry tract and ferry.

Even if it were admitted that the agreement operates as a covenant, it is not a covenant real which inheres in the land or ferry, and passes with either, so as to bind the defendant, as assignee. 4 Cruise, 397, defines covenants real to be those ‘'which have for their object something annexed to, or inherent in, or connected with land or other real property.” In Shepherd’s Touchstone, they are defined to be “ such as do run with the realty, so much in the land, that he that hath the one hath or is subject to the other.” In Spencer’s case, 3 Coke, 16, they are described, as “those which touch or concern the realty.” By the second resolution, in that case, it is affirmed that, though a covenant names assignees, yet, if the thing to be done be merely collateral to the land, the assignee shall not be charged; as if the lessee covenants to pay a collateral sum to the lessor or to a stranger, or to build on land of the lessor, not parcel of the demise, “the assignee can no more be charged than any other stranger.” By the third resolution, it is affirmed, that if one lease personal goods for a time, and covenants for hire, and his assigns to return them, this covenant shall not bind the assignees, because there is not any privity or any reversion; but merely a thing in action, in the personalty, which cannot bind any but the covenantor, and his executors and administrators, who represent him. And so, if one demise land for years, with a flock of sheep, rendering rent, and covenant for himself and his assigns, to return the flock of sheep, yet the assignee shall not be charged with this covenant; for although the rent was increased in respect of the flock of sheep, yet the rent did not issue out of the stock, but only out of the land. Without ruling that point, it may be conceded, for argument!' that in the terms “realty” and “other real property,” are comprehended not only land or real estate, properly so called, but also chattel interests in land and real hereditaments.

From these authorities, it appears to be an essential quality of a real covenant, that it relate to the realty, having for its object something annexed to, or inherent in, or connected with land or other real property ; and that a personal covenant does not bind the assignee of a covenantor, even though expressly named, but charges only the executor or administrator; and that it makes no difference if such personal covenant is connected with real covenants, so as to form one entire consideration.

The agreement, then, that the plaintiff should cross the ferry, toll free, if a personal covenant, is not converted into a real covenant, because it forms part of the consideration for the partition of the land, but must have the same effect, as if it were an independent contract.

A ferry is not land; nor, in this State, an incorporeal here-ditament. It does not issue out of land, nor is appurtenant to it. In Gourdin v. Davis, and Lehre, 1 Bail., 469, it was held that a ferry did not pass by a conveyance of the adjacent soil; nor was the rent, reserved on the lease of a ferry, extinguished by the lessee’s becoming the owner of the landing places. A covenant, with the assignment of a ferry, by the owner of the landing places, in whom the ferry may be vested, has, therefore, no more the qualities of a real covenant, than if it were made by a stranger to the land. Ferries, like public roads, are public franchises, and are granted to private persons, for a limited term. The owner of the landings is not recognized as having a right to have the ferry granted to him. The grant of it, does not differ from the assignment of a section of a public road to one, under an obligation to keep it in repair, and with authority to demand and receive toll from all persons who may use the road. If such toll-keeper should covenant with one of his neighbors that he might travel toll free, and afterwards assign his section of the road, the assignee would certainly not be bound by the covenant. And so if a mail contractor should covenant that one might ride in his coach, without charge, such an agreement would not bind an assignee of the mail contract and of the stock and coaches, A right of ferry is not then, an incorporeal hereditament, nor the subject of areal covenant; and a contract, though under seal, that one should pass, toll free, is a personal contract which does not bind an assig-nee of the ferry.

It may be proper to notice some of the views which have been presented to charge the defendant. The agreement that the plaintiff should cross the ferry, toll free, was not, by the decree, made a charge upon the ferry or ferry tract. Even if the agreement were comprehended in the decree, that would not give it an obligation beyond its legal effect and the intention of the parties, who did not bind their assigns, nor convert a personal contract into a real covenant. Nor if it be assumed that the defendant purchased with notice of the agreement, did that create a liability. The notice informed him of a mere personal covenant, which did not charge an assignee. Nor did the enjoyment of the privilege during the life of Sarah Garner, and while the ferry tract was owned by Thomas Garner, and after the defendant purchased until the interruption complained of, confer any right on the plaintiff. If the privilege was enjoyed from courtesy, or a mistaken liability, the defendant is not precluded from now asserting his rights. Nor can any claim be founded on the fact, that the defendant purchased from Thomas Garner, who was the devisee of Sarah Garner,and a volunteer. The law does not distinguish between a donee or devisee, and a purchaser for value, except for the protection of creditors. Equity makes a distinction so far as to refuse relief, when it is unconscientiously sought by a volunteer, and leaves him to his remedy at law.

An objection is also presented to the plaintiff’s recovery by the form of action. Case is certainly not the remedy for a breach of covenant; and in this form of action the plaintiff cannot recover on the alleged contract. The refusal of the defendant to carry the plaintiff across the ferry, is not charged as a violation of a public duty, but as the breach of a special contract. Case may be, in many instances, a convenient remedy with assumpsit on implied contracts, but not on special agreements; 6 Barn, and Cres, 273. So it lies for the disturbance of an easement; but the plaintiff has not been disturbed in the enjoyment of an easement; but has been refused the benefit of an alleged special contract to pass the ferry, toll free. The action should have been on the contract.

The motion is refused.

Evans J., Wakdlaw J., and Withers J., concurred.

Richardson J.,

dissenting. If the verdict should be justified by the refusal of a new trial, the plaintiff is estopped forever. But to my understanding the plaintiff had a clear case, in itself obscured only by the introduction of matter foreign to its simple merits. I am to prove this from the law and the facts.

1st. A ferry is a personal franchise, to carry travellers across a river, or other water, from the terminus of a public road on the one side, to the terminus of a road on the other side. The ferry is to connect the two termini, and thus unite the two roads into one highway. The ferry is but a part of this highway. Ferries are called common highways, in the books:—for this definition, see title, Ferry, in Jacob’s, or any other Law Dictionary. The point to be observed is, that the ferry has no legal or necessary connexion with the lands, other than with the roads it so unites. The lands adjacent may belong to A. and the ferry to B., and the water may belong to C., subject only to the franchise of the ferry. (See the same authorities for instances.) It is precisely the same as a public road running through lands—the title is in the freeholder, subject to the public use for a road. The ferry is that road extended across the water. In the case of Gourdin v. Davis and Lehre, Bail., 466, this is plainly laid down. The defendants had leased the ferry of Gourdin, and then purchased the ferry landings,—just as the defendant Garner purchased the adjacent lands in the present instance. But it was decided that Davis and Lehre acquired no right to the ferry, by their purchase: they were still the tenants of Gourdin, as to the ferry, which was as atoll bridge; although both ferries and toll bridges are commonly chartered to the adjacent freeholder, which is convenient and just. So in the case before us; the defendant Garner purchased the ferry lands—so called,—but not the ferry itself. Still, in point of fact, Garner is found in possession of the ferry, claiming it under Thomas Garner, who seems to have claimed it under Sarah Garner, who had devised the ferry tract of land; not the ferry—to Thomas. Thomas, no doubt, like Gilbert, the defendant, and like Davis and Lehre, supposed the ferry had passed with the land. But this being a clear mistake, what avails the doctrine of covenants running with the land? Assuredly it has no application, although no doubt, it led the defendant to disregard Sarah Garner’s contract with Morse. Thus by imputing to himself the unincumbered ownership of the ferry, when he purchased, and as Morse’s exemption from toll was a mere personal covenant, the defendant supposed it availed not against him, G. Garner, now become the purchaser of the land, and incidentally of the ferry. But this being a mistake, how stands the case, when thus disencumbered? It is plainly this:—Sarah Garner was the owner of the franchise of the ferry, and happened to own the lands. Both parties claim under her. Morse purchased of her the right of passing toll free, as in the common case of a purchase to pass toll free during life, which is binding, as other mere personal contracts. No doubt of this. But Morse finds Gilbert Garner in possession of the ferry. Garner at first concedes, but presently denies his right to pass toll free; but upon what legal ground he did this, does not appear, except upon the aforesaid error. No other has been urged. But Sarah Garner could justify no such denial of Morse’s right. And Gilbert Garner, a mere volunteer’, or tenant, or executor, perhaps, can stand in no better right than Sarah. But to make the case too simple for question, he conceded Morse’s right to pass toll free up to February ’45, when having purchased the ferry lands, he concludes, like Davis and Lehre, (it is the very principle overruled in that case) that the ferry was inseparable from the lands. Upon this, his defence rests, and nothing else. But this being taken from the defendant, he cannot defend himself by saying he is not the legal owner. It is enough that he occupied the ferry, assuming to be the owner, and obstructed Morse’s right of passing. This is also a decided point, and essential to all travellers, who must look to the actual incumbent.

On the subject of a want of notice of Morse’s contract, if it could have availed—that is not pretended, and the converse actually appears. But the defendant simply intrenches himself behind his freehold in adjoining lands. Morse’s right could not have been enhanced if he had purchased the very lands, and the defendant has but the same law. What then is the true legal position of Gilbert Garner? It is this: he has taken possession of the personal estate of Sarah Garner—i. e., her franchise oi this ferry: he is therefore her executor in his own wrong: or a volunteer, or a tenant: let him have choice; but no such man can be in a better situation than Sarah Garner herself. But admit that his true legal position was lost sight of -in the misconception about covenants real, at the trial, and that it would be important to know how the defendant really stood; because he may still, by some other title, be the true owner of the ferry; and it might be, that Morse’s exemption does not bind him in his new character of the owner. If so, assuredly, justice to both parties calls for a further investigation. For it is plain that counsel, and thence it follows, that both the Court and jury adjudicated the case under mistaken impressions of its proper law. It has been truly a mis-trial, and ought to be reconsidered without prejudice. A verdict so obtained ought not to operate as an estoppel of Morse’s right forever. Had there been a non-suit merely, which is no legal bar, it would have been at our discretion. But not so where there is a final adjudication by verdict.  