a similar covenant would be violated by a subsequent demise of an underlying strata of mineral, so worked as to cause the floor of the lessee's mine to fall.1 However, in the sale of the surface of land the fact that the minerals underlying the same had previously been sold and worked out, would not constitute a breach of a covenant for quiet enjoyment, even though the surface should subsequently subside by reason of the removal of the minerals. The covenant could only relate to the condition of the premises at the time of the conveyance and would not cover conditions resulting from prior defects. But the covenant for quiet enjoyment protects the possession of the covenantee and any interference with this right, subsequent to the transfer, would constitute a breach.4

1 Glasgow v. Hurlet Alum Co., 3 H. L. C., 25; MacSwinney, supra. The lessee of an oil lease has an implied covenant of right of entry and quiet enjoyment and while a second lease will not constitute a breach of this covenant any interference with the possession or working of the lease by the lessor will. Knotts v. McGregor (W. Va.), 35 S. E. Rep. 899. In an oil or gas lease there is an implied covenant of quiet enjoyment and any dispossession of the lessee will afford damages. Knotts v. McGregor (W. Va. 1901), 35 S. E. Rep. 899. There is also an implied covenant on the lessee's part of diligence and continuous operation. Huggins v. Dally (W. Va.), 99 Fed. Rep. 606; 48 L. R. A. 320.

2 Spoor v. Green, L. R., 9 Ex. 99; Mor. Min. Dig., pp. 398-399.

3 For comments on this case, see MacSwinney on Mines, pp. 210–211. Schuylkill Co. v. Schowell, 57 Pa. St. 271. Eviction constitutes a breach. Walker v. Tucker, 70 Ill. 527; Peck v. Hiler, 24 Barb. 178; Tiley v. Mayers, 43 Pa. St. 304. "At common law, the mere fact of unwork. ability to profit' affords no ground for reducing or throwing up a lease of minerals which are in their nature subject to many vicissitudes. There is in such a case no legal warranty on which the lessee can rely." Gowan v. Christie, 5 Moak, 114; L. R., 2 Sc. App. 273. M. M. D. 197. mines were demised at a certain royalty per ton upon the coal which might be got, and also at the rent of £300 a year, or so much thereof as, with the royalty, should amount to that sum, such rent of £300 to be a minimum rent for the coal demised. And the lessee covenanted to pay the rents, and to work the mine: Held, that a court of equity wouldnot restrain an action by the lessor for the minimum rent, although the

"Cool

In the case of a breach

§ 518. Covenants of warranty. of a covenant of warranty in the conveyance of mines and mining property, the same general rules of law are applicable as in the breach of similar covenants in conveyances of other species of realty. It has been held that a covenant that land conveyed is free from incumbrances is violated by a prior lease of the minerals, existing at the time of the conveyance, and under which the lessees had covenanted to remove all the ore in the land, and had, in fact, removed the same and the pillars supporting the surface, which caused a subsidence of the surface subsequent to the transfer.1 And so a sale and transfer of all the minerals contained in a tract, with privileges and easements connected with their removal, is a breach of a covenant of warranty that such land is free from all incumbrances. A mere parol license to mine, however, will not constitute a breach of a covenant against incumbrances, nor would the existence of a lease to mine be held a breach of such a covenant, if the lessees had conducted no mining operations thereunder at the time of the execution of the covenant, or caused no injury to the land.1 Neither would a lease and operations resulting in injury to

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coal proved to be not worth the expense of working; but that if the lessor were to sue upon the lessee's covenant to work the mine, the court would interfere. Ridgway v. Sneyd, 1 Kay, 627; M. M. D. 196.

1 Taylor v. Shafto, 8 B. & S. 228; Shafto v. Johnson, 8 B. & S. 252; MacSwinney on Mines, pp. 210-211 et sub.

2 Stambaugh v. Smith, 23 Ohio St. 585; Mor. Min. Dig., p. 399. A reservation of minerals, which it is stipulated shall only be worked by subterranean workings, is a covenant running with the land. Electric Co. v. West Ridge Coal Co., 187 Pa. St. 500; 41' Atl. Rep. 458. One who buys with notice of a prior deed of the mineral in the land cannot sue for breach of a covenant of warranty. Sanders v. Rowe, 48 S. W. Rep. 1083.

3 Gesner v. Cairns, 2 Allen (N. B.), 595; Mor. Min. Dig., p. 399. 4 Spoor v. Green, L. R., 9 Ex. 99; Mor. Min. Dig., supra; MacSwinney on Mines, pp. 210, 211.

the land constitute a violation of such covenant, where the lease had expired prior to the sale and there had been no operation thereunder subsequent to such time.1

The owner of

§ 519. Who may maintain the action. the legal interest is the only party who can maintain the action for breach of a covenant.2 A third party cannot be joined in the action. Those alone are legally interested who are parties to the covenant, and although others may be beneficially interested, they cannot be joined as parties to the suit. It is the general rule of law that the party for whose benefit a contract is made in the name of another, can maintain an action for the breach thereof, the same as the party in whose name the contract is originally made. This is a general rule of pleading, and applies as well to simple written instruments as to contracts under seal. But it has been held in England, in an action on the covenant, that where the lessor authorizes another to execute a lease for him and in his behalf, and the party authorized signed his own name to the lease, he would be the proper party to sue upon the covenant, although the covenants on the part of the lessee were with the lessor by name. The

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1 Spoor v. Green, supra; see Taylor v. Shafto, 8 B. & S. 228, holding to a contrary doctrine; and see also Shaw v. Stenton, 2 H. & M. 858, and Demmett v. Atherton, L. R., 7 Q. B. 327; MacSwinney on Mines, supra. "A warranty of title upon sale of the surface, reserving minerals, is broken by the existence of an outstanding lease of the minerals, under which the lessees are bound to get all the coal without leaving support to the surface." Taylor v. Shafto, 8 B. & S. 228; M. M. D. 197.

2 Taylor's Land. & Ten., § 664.

3 Ante, idem. Smith v. Emery, 7 Halst. 53.

4 Bliss on Code Pleading, §§ 55-58, and cases cited. An easement of right of way, not excepted in a covenant of warranty, is a breach of covenant, for which covenantee can recover, although he had knowledge of easement. Sherwood v. Johnson, 62 N. E. Rep. 645.

5 Berkley v. Hardy, 5 B. & C. 355.

general rule of equity practice that parties jointly interested in the subject of the action must be joined as plaintiffs or defendants, applies to actions by several covenantees in an action on the covenant. The rule of survivorship also applies to actions by joint covenantees, and where one or more of the joint covenantees is dead, the death of such covenantee should be set up in the petition, and when their interests are joint they must all join in the action, although the covenant may be several; 2 but if their interests are several each may sue, although the covenant may be joint.3

§ 520. Against joint and several covenantors. The same rule of pleading applies in regard to those against whom an action on the covenant may be brought. It can only be brought against the party who has executed the instrument. Where the covenant is joint all the covenantors must be joined as defendants, and where it is joint and several they can either be sued jointly or separately. Where there has been a demise, and the covenant is implied from the conveyance, the action must be brought against the party who demised, although there may be others joined in the lease by way of confirmation.' The survivor only of two joint covenantors can be sued for a breach and where both are dead the representative of the survivor

1 See Bliss on Code Pleading, supra. 2 Bliss on Code Pleading, §§ 45-67.

3 Ante, idem. Wait's Act. & Def. (Vol. 2), p. 369. Only the personal representative of covenantee can maintain suit after his death. Richard v. Bent, 59 Ill. 38; s. c. 14 Am. Rep. 1; Wait's Act. & Def. (Vol. 2), rp. 398-399.

4 Bliss Code Pleading, §§ 67–45.

5 Duke of Northumberland v. Ernington, 5 T. R. 522; Buckner v. Hamilton, 16 Ill. 487.

6 Euspv. Dormithorn, 2 Burr. 1196; Wait's Act. & Def. (Vol. 2), p. 369. 7 Smith v. Pocklington 1 Cr. & J. 445.

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is the proper party to sue for the breach.1 One covenantor cannot affirm an act which he did not previously authorize, and make himself liable for a breach resulting as a consequence of such act, and, in a joint covenant, where the breach occurs by reason of the wrongful act of one of the covenantors, those who would otherwise have been liable, if the wrongful act had been joint, cannot be held liable for this breach; but the covenant, so far as the breach is concerned, would be considered several, and the party whose tort occasioned the breach could alone be held for the consequences of his wrongful act. Executors and administrators can also be sued on the covenants of their testator, and where the covenant is joint, they can be held jointly responsible for a breach occurring after the death of the covenantors. But if the covenant is one that terminates with the death or disability of the covenantor, or one to be performed by him personally, the executor or administrator cannot be held to a performance of the covenant, and where the breach occurs during the life of the testator, his executor might be sued in his representative

1 Bundy v. Williams, 1 Root (Com.) 543; Lang v. Keppell, 1 Burr. (Penn.) 123.

2 Taylor's Land. & Ten., § 668.

3 Coleman v. Sherwin, 1 Salk. 137.

4 Wait's Act. & Def. (Vol. 2), pp. 360, 361. Where the covenant runs with the land the action can also be brought against the heir, if property has descended to him. Plummer v. Marchant, 3 Burr 1380; McClurk v. Gamble, 27 Pa. St. 290; Chapman v. Holmes, 10 N. J. Saw.) 20. The assignee of a lease is bound by the covenants of the lease the same as the original lessee and can be sued for breach thereof. Ind. Nat. Gas & Oil Co. v. Hinton, 64 N. E. Rep. 224. In an action for royalty by lessor against assignee of oil lease the burden of establishing the assignment is on the lessor. Heller v. Dailey, 63 N. E. Rep. 490.

5 See, as to personal covenants and contracts and the right to sue thereon after death of covenantor, Bliss on Code Pleading, § 48, p. 64; 1 Chitty's Pleading, 51; Schultzer v. Johnson, 5 B. Mon. 497.