Raby v. . Reeves

16 S.E. 760, 112 N.C. 688

• Court: Supreme Court of North Carolina
• Decided: February 5, 1893
• Status: Published

Opinion

Shepherd, C. J.:

It is laid down in Bacon’s Abridgment (Yol. Y1II, Letter 8, Title Rent) that, “ as a general rule, no rent can issue out of an incorporeal inheritance which lies in grant, because they are such things in their nature as a man can never recur to for a distress.” It is also stated by the same author that “if a lease by deed for years of an incorporeal inheritance be made — reserving rent — such reservation is good by way of contract to 'bind lessee, and for non-performance lessor may bring debt.”

Ho, it seems, that in the present case, when the easement was granted, reserving twenty dollars per year, it was not rent, but a covenant, for the non-payment of which the grantor might have brought an action of debt.

Is this covenant a mere personal one, or does it run with the land? We think that the plaintiff grantee took the land subject to the easement, and if he interfered with its use the grantee of the easement would have an action against him. Being thus subject to the burden, he should, under the circumstances of this case, share the benefit and be entitled to collect the compensation.

As to the other point, his Honor very properly held that if the defendant accepted and acted under the deed he was bound by its covenants. Fort v. Allen, 110 N. C., 183.

We also concur in the ruling that there was evidence tending to show such acceptance, etc.

Affirmed.