
    Henry Lienow versus Asa Ellis.
    Where an action of covenant broken is founded on privity of contract between the parties, their executors or administrators, it is transitory ; but when it is founded on privity of estate, it is local, and must be sued in the county where the land lies.
    This was an action of covenant broken by the plaintiff, as assignee of one Montgomery R. Bartlet. The declaration states a conveyance, by deed executed by the defendant, to Bartlet, in fee simple, of a lot of land, which appears to be in the county of Middlesex, and which is bounded by other lands in the deed mentioned ; but there is no averment in what town or county the land is situate. The declaration also states a covenant in the same deed by the defendant to Bartlet, his heirs and assigns, that the said land was free of all encumbrances ; and also a conveyance in fee by deed executed by Bartlet to the plaintiff. The breach of the covenant is assigned, by averring that, at the time when Ellis conveyed to Bartlet, the land was under a mortgage made by Ellis to the Hon. Francis Dana, who, after the conveyance by Bartlet to the plaintiff, entered by judgment of law, for a breach of the condition of the mortgage.
    The defendant demurred generally to the declaration, and the plaintiff joined in demurrer.
    
      Fuller, of counsel for the defendant,
    among other exceptions to 
      the declaration, objected that the action arises from privity of estate, and not from privity of contract, and ought, therefore, to have been brought in the county of Middlesex, in which the land lies.
    
      Selfridge and Bourne, for the plaintiff,
    acknowledged the defendant’s position to be correct, as at common law ; but they contended that our statute of 1784, c. 28, (by which it is provided “ that where the plaintiff and defendant both live within the commonwealth, all personal or transitory actions shall be [ * 332 ] brought in the county where one of the * parties lives,”) had done away the common law as to this point; and they cited a case reported in a book called “ Precedents of Declarations.” 
    
    
      
       Page 35, Ingalls vs. Corliss. This case, however, was between the grantor and grantee.
    
   Parsons, C. J.

It is the opinipn of the Court that the exception urged by the counsel for the defendant must prevail. When the action of covenant is founded on privity of contract between the parties, their executors or administrators, it is transitory, and may be sued as a transitory action ; but when it is founded on privity of estate, the action is then local, and must be sued in the county where the land lies. In the case before us, if the plaintiff can maintain an action of covenant upon the covenant on which he declares, he must maintain it as assignee of Bartlet, by virtue of his conveyance of the land; and his privity is a privity of estate, and not of contract.

After this opinion was delivered, the plaintiff had leave to discontinue, upon payment of costs.  