
    Edward M. M. Clark vs. Charles Scudder & others.
    An action by the assignee of the covenantee against the covenantor on a covenant concerning land is local, and cannot be maintained out of the county where the land is sitnated, although the land is out of the Commonwealth, and the defendant and plaintiff reside here.
    Action of contract, in the nature of covenant broken, upon a covenant contained in a deed of land in Illinois, made on the 27th of July, 1838, by the defendants, then and ever since re- ' siding within the Commonwealth, to Edward Hall, Jr. and William Hall, under whom, through several mesne conveyances, the plaintiff claimed.
    The covenant upon which the action was founded was in these words: “And that said premises, in the quiet and peaceable possession of the said parties of the second part, and their heirs and assigns, against all person or persons lawfully claiming or to claim the same, or any part thereof, they will forever warrant and defend.”
    At the trial in this court, the chief justice ruled “ that, as this was an action on a covenant running with the land, brought by an assignee of the covenantee, and the land being situated" out of this commonwealth, the court had no jurisdiction¡ ” and a nonsuit was entered, subject to the opinion of the full court.
    
      G. G. Hubbard, for the plaintiff.
    
      E. A. Dana, for the defendants.
   Metcalf, J.

This case cannot be distinguished from that of Lienow v. Ellis, 6 Mass. 331, where it was decided that an action of covenant concerning land, brought by the assignee of the covenantee against the covenantor, was local, and could be maintained only in the county where the land was situate. The same point was decided in the same way in White v. Sanborn, 6 N. H. 220, and Birney v. Haim, 2 Littell, 262. There is no privity of contract between the plaintiff and the defendants, but merely a privity of estate; and when an action is founded on privity of estate only, it is local, as is shown not only by the above cited cases, but by numerous other books. 1 Tidd’s Pract. (1st Amer. ed.) 373. 1 Selw. N. P. (11th ed.) 517. 1 Saund. Pl. & Ev. (2d ed.) 865. Mayor &c. of Berwick upon Tweed v. Shanks, 3 Bing. 460. The plaintiff contends, however, that as both he and the defendants are inhabitants of this state, he is without remedy, unless he can maintain an action here; and that, for this reason, the court should sustain this action. Lord Mansfield once yielded to this consideration (Cowp. 180) at nisi prius, but he was overruled. Doulson v. Matthews, 4 T. R. 503. See also Shelling v. Farmer, 1 Stra. 646 ; 1 Chit. Pl. (6th Amer ed.) 302; Story Confl. § 554. Nonsuit to stand.  