heir and devisee. Liability of devisee jointly. And by s. 4, that in case there shall not be any heir at law against whom jointly with the devisee a remedy is thereby given, the creditor shall have his action against such devisee solely (a). Real estate of deceased By the common law the heir, when sued upon an obligation of the ancestor, might plead riens per descent, that is to say, that he had not any lands by descent from the ancestor at the time of suing out the writ, and though he had aliened the lands descended before the suing out of the writ, he was entitled to the verdict on that issue, unless it could be proved that he had aliened them for the purpose of defrauding the plaintiff of his debt (b). But by the statute 3 Wm. & Mary, c. 14, s. 5 (re-enacted by 1 Wm. IV. c. 47, s. ), the heir at law in such case was made answerable for the debts and covenants to the value of the land so aliened by him. And by s. 6, of the same statute (re-enacted by 1 Wm. IV. c. 47, s. 7), it is provided to the effect that to the plea by the heir of riens per descent the plaintiff may reply that he had lands, tenements, or hereditaments, from his ancestor before the writ brought, and if upon issue joined thereupon it be found for the plaintiff, the jury shall enquire of the value of the lands, tenements, or hereditaments so descended, and thereupon judgment shall be given and execution shall be awarded to the value of the lands as if the debt were his own. By the same statute 3 Wm. & Mary, c. 14, s. 7, (re-enacted by 1 Wm. IV. c. 47, s. 8) it is enacted to the effect that devisees shall be made liable and chargeable in the same manner as the heir at law, notwithstanding the lands devised shall be aliened before the action brought (c). Contracts under seal which do not expressly bind the heir made assets remain, as at common law, without any remedy by action for the pay against the heir or devisee, and under the above statutes contracts binding the heir were not made a charge upon the land itself (d); but by the statute 3 & 4 Wm. IV. c. 104, all ment debts. (a) As to this statute see 2 Wms. Saund. 8 d; Chitty's Statutes, tit. Wills. (b) See 2 Wms. Saund. 8, (n.); Brown v. Shuker, 1 C. & J. 583. (c) See further as to the liabilities of heirs and devisees and the proceedings against them, 2 Wms. Saund. 7, 8; Bullen and Leake, Prec. Pl. 2nd ed. 145, 509. (d) Richardson v. Horton, 7 Beav. 112. the real estate of a deceased person has been made assets to be administered in Courts of Equity for the payment of his debts as well due on simple contract as on specialty, provided that in the administration of assets by Courts of Equity under that Act, all creditors by specialty in which the heirs are bound shall be paid the full amount of the debts due to them before any of the creditors by simple contract or by specialty in which the heirs are not bound shall be paid any part of their demands (a). annexed to The benefit of covenants annexed to real estate or, as it Covenants is called, running with the land, as covenants for title, to re- real estate. pair, and the like, are assigned in law with the land to the heir or devisee of the deceased owner, if the estate be freehold, and to the executor, only if the estate is a chattel interest in the land (b). And if such covenants are broken in the lifetime of the deceased, so that he has acquired a right of action upon them, but no damage has accrued to his personal estate, the right of action runs in like manner with the land (c). Accordingly, where an executor brought an action upon covenants for title contained in a conveyance of land to the testator, charging breaches in the testator's lifetime, but not showing any damage to the personal estate, it was held that he could not recover (d); and the devisee of the same land having brought an action for the same breaches of the same covenants, it was held that he was entitled to maintain the action and to recover in respect of the deterioration in the value of the land by reason of the defective title (e). So, upon a covenant contained in a deed of conveyance of land to make further assurance upon request, the heir of the covenantee may bring an action for a breach of covenant in refusing to make such assurance upon a request made by the ancestor in his lifetime, whereby after the death of the ancestor the heir was ejected (f). But it is said that the executor may sue for a breach of covenant running with the land, committed in the lifetime of the covenantee, (a) See ante, p. 87. (b) See ante, p. 625. (c) Kingdon v. Nottle, 1 M. & S. 355. (d) Kingdon v. Nottle, supra. Covenants in respect of any damage caused thereby to the personal real estate. estate (a). annexed to Contracts land. Where the covenant, though concerning the realty, does not run with the land, so that the heir or devisee cannot sue upon it, the executor is the only party entitled to bring the action; as, upon a covenant in a lease not to cut trees, (the trees being excepted from the demise, and the covenant, therefore, being collateral and not running with the land), the executor was held entitled to sue for a breach committed in the lifetime of the covenantee (b); and upon a covenant to repair contained in a lease made by a tenant for life, and therefore expiring with his estate, the executor was held entitied to sue (c); nor is any special damage to the personal estate essential to the right of action in such cases (d). also, where the testator had been evicted in his lifetime in consequence of a defect in the title, so that there were no heirs or assigns of the land, it was held that the damages belonged to the executor who was entitled to sue upon the covenants for title (e). So The burden of a covenant running with the land cannot be annexed in law to an estate in the land, except in the case of covenants made between lessor and lessee; in which case the burden of such covenants may be made assignable with the term and with the reversion; upon the death of the termor the burden of such covenants passes with the term to the executor or legatee, and upon the death of the reversioner it passes with the reversion to his heir or devisee, or, if the reversion is a chattel interest, to his executor or legatee (ƒ). Upon a contract of sale of land the executor, and not the concerning heir, of the deceased purchaser becomes entitled in law to a right of action vested in the deceased for a breach by the vendor in not completing the purchase, and may recover the loss of interest on the deposit money, and the expenses of (a) Kingdon v. Nottle, 1 M. & S. 355, 364; 4 ib. 53, 57; Knights v. Quarles, 2 B. & B. 102, 105; and see Wms. Ex. 6th ed. 757. (b) Raymond v. Fitch, 2 C. M. & R. 588; ante, p. 619. (c) Ricketts v. Weaver, 12 M. & W. 718. (d) Ib. (e) Lucy v. Levington, 2 Lev. 26; 1 Ventr. 175. (f) See ante, p. 615, 625. investigating the title (a). And the executor, and not the heir, is entitled to a right of action vested in the deceased against an attorney for breach of, duty in investigating the title of land conveyed to the deceased (b). It is said "that if a man covenant by deed to another and his heirs to infeoff him and his heirs of the manor of D., and will not do it, and he to whom the covenant is made die, his heir shall have a writ of covenant upon that deed" (c); but this doctrine seems inconsistent with the principles of law above stated. In equity a contract for the sale of land is treated as if it was specifically executed from the date of the contract, so that, upon the death of the purchaser before completion, the equitable title to the land passes to his heir or devisee, who may insist upon specific performance against the vendor, and require the purchase money to be paid out of the personal estate of the deceased; and upon the death of the vendor before completion the right to the purchase money passes to his executor or administrator, who may insist upon specific performance against the purchaser and require the heir of the vendor to convey the land (d). The executor or administrator of a deceased person be- Bills of excomes entitled to the right of action upon all bills, notes, promissory change and and negotiable securities, of which the deceased was the notes. holder at the time of his death (e); and the executor or administrator is entitled to indorse and negotiate such securities; but he would become personally liable upon such indorsement (f). Where the deceased holder of a promissory note payable to order had signed his name on the note for the purpose of indorsement, but had not delivered it, and his executor delivered it to the proposed indorsee but did not indorse his name, it was held that there was no complete indorsement, and the person to whom it was so de (a) Orme v. Broughton, 10 Bing. 533. (b) Knights v. Quarles, 2 B. & B. 102. (c) Fitz. N. B. 145, C., cited and followed in Jones v. King, 4 M. & S. 188, 191. (d) Story, Eq. Jur. § 790; notes to Fletcher v. Ashburner, 1 White & Tudor, L. C. 3rd ed. p. 754; see (e) Timmis v. Platt, 2 M. & W. (f) Robinson v. Stone, 2 Strange, 1260; see per Buller, J., King v. Thom, 1 T. R. 487, 489; Childs v. Monins, 2 B. & B. 460. Joint Contracts party. livered acquired no right to sue upon it (a). The holder of a bill or note, by delivery of it for valuable consideration without indorsement, may create an equitable title, which either he or his executor may be compelled to complete (b). Upon the death of one of several persons jointly entitled under a contract, the legal right to sue for a breach of the contract remains in the survivors only, whether the breach occurred before or after the death of the joint party; the executor or administrator of the deceased person cannot sue either alone, or jointly with the survivors; upon the death of the last survivor, in whom solely the right became vested, his executor or administrator becomes entitled (c). If the deceased person was severally entitled under a contract, though others were also severally entitled with him, his executor becomes entitled and may sue (d). Upon the death of one of several persons jointly liable upon a contract, the liability devolves upon the surviving parties, and the representative of the deceased cannot be sued at law jointly with the survivors; the entire liability ultimately devolves upon the last survivor of the persons jointly liable, and after his death it is transferred to his executor or administrator in the same manner as the liability upon a contract made by him alone (e). Contracts which depend upon the existence, or the perdischarged by death of Sonal qualities, skill, or services of one of the parties are, in general, discharged by the death of that party (ƒ); as, a contract of marriage (g). The contract of an apprentice with his master to learn his art and serve him, without any mention of executors, was held to be discharged by the death of the master, because the apprentice is bound from a personal (a) Bromage v. Lloyd, 1 Ex. 32. (c) Wms. Ex. 5th ed. 1689; see (d) Wms. Ex. 5th ed. 1691; see ante, p. 217; Withers v. Bircham, 3 B. & C. 254. (e) See ante, p. 215. (f) 2 Wms. Ex. 5th ed. 560; per Parke, B., Siboni v. Kirkman, 1 M. & W. 418, 423; Wentworth v. Cock, 10 A. & E. 42; Beckham v. Drake, 8 M. & W. 846, 854. (g) See Chamberlain v. Williamson, 2 M. & S. 408. |