WILLIAM E. HARRIS and wife vs. JOHN GOSLIN, assignee of J. COULBOURN

WILLIAM E. HARRIS and wife vs. JOHN GOSLIN, assignee of J. COULBOURN. A covenant in a lease to pull down old cliimnies and put up new ones is a covenant running- with the land, and binds the assignee of the lessee though not named. A covenant to keep up all repairs of a mill does not bind the lessee to insure against natural wear and decay, but only to do ordinary repairs. Action of covenant on a lease against an assignee of the lessee. In July, 1832, Wm. Neall leased a saw-mill and farm to J. Coul-bourn for eight years, at $300 per jear, the lessee covenanting fori himself, 1st: to pay the rent; 2d: “to keep up all repairs of the mill:” and the lessor covenanting “to allow the said Coulbourn $50 out of| the rent, which the said Coulbourn is to tear down the stack of chitn-nies and put up one on the east end of the cook-house, and one on I the west end of the shed, the one in the cook-house to be an outside| chimney.” The lessee entered and assigned the term to Goslin, the defendant.! Neall, the lessor died, having devised the property to plaintiff’s wife] The breaches were for not keeping the mill in repair; and not build-f ing the cliimnies. It appeared in evidence that the mill was not in running order at the expiration of the term; that it would cost $40 to set her going] and #150 to, put her in the same condition as at the beginning of the term. And for the defendant it was proved that a saw-mill woulcl need thorough repairs every twelve or fifteen years, with ordinarjl repairs in the meantime. His counsel, therefore, contended — lst| That the covenant to keep up all repairs, meant only incidental and not general repairs; and that it did not bind the defendant to restori] the property to.the same condition in which it was at the beginning of the term. 2d. That tho covenant of Coulbourn to build the chir nies, was not a covenant running with the land, and did not bind the assignee, who was not named in the lease. That it was an independent, personal covenant, binding on Coulbourn alone. The plaintiff’s counsel, contra, insisted that the covenant to tear down the old chimney and put up a new one, respected a thing in esse, and was a covenant running with th,e land, so as to bind the .assignee of the lessee though not named. 2d. That the covenant for repairs was a general covenant, without exception of natural wear and decay; and required that the mill should be at all times kept in a. condition to do as much work as at the beginning of the lease. Cullen and J, A. Bayard-, for plaintiff. Ridgely and Houston, for defendant. [MAJORITY — Booth, Chief Justice,] Booth, Chief Justice, charged the jury: — I. If a covenant extends to a thing in esse, parcel of the land demised, or the thing to be done by virtue of the covenant is in a manner annexed to and appurtenant to the land demised, or tends to the support of the thing demised, or directly affects the nature, quality or value of the thing demised, or ■the mode of occupying it, the assignee of the lessee is bound, although he be not named in the lease. (1 Wheat. Selw. 490, &c.; 1 Leigh JV. P. 620.) The payment or allowance of the §50, out of the rent is, however, in this case a condition precedent to the obligation of building the chimnies, and must be proved to have been paid or allowed either to Coulbourn or Goslin. If paid to either, the defendant is liable to the extent of the cost of tearing down and putting up the chimnies, according to the requirements of the lease. 2. The ■covenant to keep up all repairs did not bind the lessee to do more than ordinary repairs. A different construction would make the ten-lant an insurer against natural wear and decay; and, on a long lease in reference to mill property, would in effect bind him to re-build; for it was in evidence that a saw-mill would wear out and require re-building in twelve or fifteen years. Where the covenant is to keep the premises in good and substantial repair and condition, the tenant is only bound to keep up the house as an old house, and not [to give the plaintiff the benefit of new work: keeping the premises in [substantial repair is a sufficient compliance with the covenant. (Leigh N. P. 616; Roscoe Ev. 314.) The plaintiff had a verdict for §45.