
    JOHN BROOKS v. WILLIAM SMITH.
    (S. C., Thomp. Cas., 226-233.)
    Jackson,
    April Term, 1860.
    1. ACTIONS. Assignee may sue upon covenants running'' witii land.
    Where premises are leased íor a term, there is no privity between the purchaser by conveyance in fee oí the reversion and the assignee of the lease; but by the act of 32 Hen. VIII. [eh. 34], an action upon the covenants contained in the lease which ran with the land or “touch and concern” the thing demised, will lie in favor the one and against the other. Before this statute such action did not lie. [This statute made covenants running with the land run with the reversion also. See Cronin v. Watkins, I Tenn. Chy., 125, 126; Hite v. Parks, 2 Tenn. Chy., 373, and the cases cited with this syllabus.]
    Cited with approval: Spencer’s Case, 5 Coke, 16; 1 Smith’s Leading Cases, 122, 115 (6th Am. ed. by Hare & Wallace, p. 129); Bream v. Dickerson, 2 Hum., 126.
    2. COVENANTS. What run with the land, and sued on by assignee.
    Covenants in a lease to surrender up the premises in good condition at the expiration of the term, to cut no timber growing' thereon except for certain specified purposes, run with the land, and may be sued upon by the assignee of the reversion, though, the word “assigns” is not used. [Covenants of warranty run with the land. See note 130 under sec. 3142 of the Code.]
    Cited with approval: Shelby v. Hearne, 6 Yer., 512.
    3. SAME. Same. Rights and liabilities of assignees.
    But in such case no right of action accrues to the assignee of the reversion except for breaches of such covenants after the assignment; and the assignee of the lease is not liable for breaches of the covenants unless shown to have been made after the assignment to him.
    Cited with approval: Shelby v. Hearne, 6 Yer., 512, 514; Addison on Con., 979.
    4. SAME. Assignees of lease not bound, when.
    Covenants which do not run with the land are not binding on the assignees of the lease, unless they are expressly named and bound in the covenants.
    Cited: Addison on Con,, 979.
    5. SAME. Not running with the land and merely personal.
    Covenants in a lease on the part of the lessee to build a shop and houses upon the leased premises, to construct and put up certain machinery in the shop, and to do certain work for the lessor in said shop to be built, do not run with the laud, and are merely personal, and do not bind the assignees of the lease, unless perhaps the lease expressly extends to and binds the assignees. [See note and citations to first syllabus.]
    6. SAME. What runs with the land, and what not — general doctrine stated.
    A covenant to do something to a thing in existence at the time runs with the land and binds the assignee, even without the w.ord “assigns;” but if it be to erect something- on the premises, the assignees are not bound, unless they are expressly bound.
    Cited: Addison on Con., 979.
    7. DEMURRER. Bad in part, is bad in toto.
    Where the declaration is good in- part, and bad in part, a demurrer to the whole declaration will be overruled; but if confined to the defective parts of the declaration it will be sustained. [See note 19 under sec. 4659 of the Code.]
    Cited with approval: 1 Chit. PI., 663, 664.
    8. SAME. General, operates only as motion to dismiss.
    A general demurrer, not setting forth the particular objections relied upon, operates only as a motion to dismiss, and can be of no avail, if a good cause of action is shown in the declaration, though imperfectly stated. [See Code, secs. 4655-4659, and notes.]
    Cited: Code (1858), see. 2934 (Shannon’s Code, sec. 4655).
   Caruthers, J.,

delivered the opinion of the court:

Action of covenant by the purchaser of a lessor against the assignee of the lessees. Demurrer to the declaration sustained by the circuit judge, and appeal in error.

The case made in the declaration is, that Parrott God-win, being the owner of a tract of land in Grainger county, entered into and executed certain articles of agreement under seal with Byons and Olovinger, of which profert is made, by which "he leased to them, for the term of five years from the 1st of January, 1854, a lot of ground, part and parcel of said tract of land.” By which articles they bound themselves to build upon said lot a shop, of dimensions and descriptions therein set forth, and to furnish the same with turning lathes, grindstone, water works, etc. They were to have the privilege of water, timber, etc., necessary for the work. It is also provided that the lessees were to do all the blacksmith work of the lessor, he fmnishing the iron during the term. On his part, the said Godwin, for the work and buildings, covenanted “that the said Ryons and Clovinger should have the use of the said shop and all the machinery belonging thereto, the two small houses then occupied by them, with the cleared land around them, with the privilege to use firewood from Godwin’s land during the term.” They were also* to have the privilege of talcing timber enough to. build a frame house and have the use of it, but they were to cut no timber that would malee plank, except for the erection of said building. And the said Ryons and Clovinger further bound themselves to deliver to Godwin, at the end of the term, “all the said houses and the shop, and all the tools that may be used in said shop, except such as are used in common blacksmith shops, in good condition except the wear of the same.” For a-breach of these covenants by either, he was to forfeit to the other $100 and all damages.”

It is further averred that afterwards on the --day of --, 185 — , the said Godwin sold and conveyed in fee to the plaintiffs the said tract of land, a part of which he had so leased as aforesaid, to the said Ryons and Clovinger, the said sale and conveyance being made before the expiration of the said lease and before the breach of the said covenants.”

And before the breach the said “Ryon and Clovinger assigned their said lease to the defendant, who> took possession of said land so leased.”

The. breaches assigned in the declaration, are:

1. The said shop and houses were not built.

2. The machinery was not put up, and the grindstones and turning lathes were not constructed.

3. The work of the plaintiff was not done in said shop, though requested by him.

4. The premises, the houses and shop and the tools were not surrendered in good condition on the 1st of January, 1859.

5. The defendant did cut and use timber on said land, suitable for making plank, for other purposes and uses than making said houses.

The parties to this suit are not the parties to the covenant, but according to the averments of the declaration, the plaintiff is the purchaser by conveyance in fee of the reversion and the. defendant the assignee of the lease. There is no privity between the parties. The lease is exhibited, but not the assignments of either the reversion or lease. The lease, of which profert is made, has no .assignment upon it, nor is it even averred that there was a written assignment, but barely that it was assigned to, and possession taken by the defendant. The lease does not expressly embrace.the assignment of the parties. This suit cannot be maintained unless the covenants are such as to run with the land, or "touch and concern the estate,” as there is no privity between the parties.

By the common law for the want of privity, and because covenants run with the land, but not with the reversion, covenant could not be brought by the assignee of the reversion, and to remedy this the act of 32 Hen. VIII., was passed.

After reciting that, "by the common law no stranger to any covenant could take advantage thereof, but only such as were parties or privies thereto,” it gives reciprocal actions to and against the assignees of both parties to a lease. This statute, though general in its terms, and would seem to embrace all covenants that might be contained in a lease, was easily construed to apply only to such as "touch and concern” the thing demised and not collateral covenants. 5 Coke, 16, “Spencer’s Case,” brought into 1 Smith’s Leading Cases, 122, margin; Bream v. Dickerson, 2 Hum., 128.

The only difficulty now is to determine whether a. particular covenant “touches and concerns” the thing demised or not. In the leading case it was held that a covenant to build a brick wall upon the demised premises did not, and the assignee of the lessee was not liable unless the covenant in the lease expressly embraced him. But even that would not bind the assignee if the covenant had been to build a wall or a house anywhere else, for that would be merely collateral to the land, and does not touch or concern the thing demised. See second resolution in Spencer’s Case.

The doctrine of that and perhaps all other cases is, that a covenant to do something to a thing in existence at the time, as to repair the houses, cultivate the land in a particular manner, to reside on the premises, to let the lessor have free access to certain rooms in the house, etc., runs with the land and binds the assignee, even without the word “assigns;” but if it be to erect something upon the premises, such as a house, shop, machinery or wall, that does not bind the assignees, unless they are expressly named. Addison on Contr., 919. The last is the case before us.

In Shelby v. Hearne, 6 Yer., 512, 515, a covenant to occupy and leave the premises in tenantable repair at the expiration of the term, was held to run with the land in favor of the assignee of the reversion. But in such case the breach must occur after the assignment, for if it were before, the latter cannot sue.

In Bream v. Dickerson, 2 Hum., 126-130, the court decided that a covenant on the part of the lessor to' pay for such improvements as might be made by the lessee did not run with the land, or reversion, so as to make.the assignor of the same liable to the assignee of the lessee. These are the only cases we have on the subject.

According to these principles, independent of the imperfections alleged to' exist in the declaration, it will be seen that the plaintiff as assignee of the lessor, cannot maintain this action upon the covenants in this lease and the breaches set forth against the defendant, as assignee of the lessees, so far as the first three breaches are concerned. It would bo otherwise, perhaps, if the lease had expressly extended to and bound the assignees. He must look to Ryon and Clovinger, the covenantors, as to them.

The judgment sustaining the demurrer would be affirmed as to those covenants and breaches, if the demurrer had been specially confined to them. But it is general to the whole declaration, and cannot be sustained in part, 1 Chit. Pl., 663, 664. The stipulations in the covenant upon which the two last breaches are assigned are such as run with the land, and upon which the assignee of the lessees may be' made liable to the extent of the damage sustained, if any can be shown to have resulted to the plaintiff from the act of this defendant after the assignment of the lease to him.

It may be remarked also that this demurrer being general, and not setting forth the particular objections relied upon, it does not conform to the requirements of the Code, sec. 2934, and can be of no avail to the defendant, if a good cause of action is shown in the declaration, though imperfectly stated. That section abolishes general demurrers, and requires that the ground of the demurrer shall be specially stated. Without this the demurrer can answer no other purpose than to stand as a motion to dismiss.

Judgment reversed, and cause remanded for further proceedings.

Judgment reversed.  