after stating the Case: It is very generally held here and elsewhere that the “grantee in a deed poll, containing covenants and stipulations purporting to bind him, becomes bound for their performance, though he does not execute the deed.” Maynard v. Moore, 76 N. C., 158, approved in Long v. Swindell, 77 N. C., 181; Fort v. Allen, 110 N. C., 191; Bank v. Loughlan, 122 N. C., 613; Burbank v. Pittsburg, 48 N. H., 475; Bowen v. Beck, 94 N. Y., 86; Easter v. R. R., 14 Ohio State, 48; Ga. So. Ry. v. Reeves, 64 Ga., 492; Smith’s Lead. Cases, 9 Amer. Ed., pp. 222-223.
This deed, therefore, from plaintiff and wife to the Wallace Lumber Company, in section VII, contains affirmative stipulation that the grantee “shall construct and build a standard-gauge railroad, to be completed, etc.; that the trees sold in this deed are not to be removed.from the land except by said railroad, and, in case of failure, a pecuniary penalty of specified amount is collectible by the grantor, the plaintiff; and the defendant, the Cumberland Lumber Company, having taken an "assignment of the entire contract, to wit, “all the rights, title, and interest to all the standing timber and timber rights, together with all rights of way, etc., and all other rights, privileges, and easements conveyed and contained in said deed,” and being-in the present ownership and enjoyment of these rights, etc., must come under the obligations of the covenant and be held responsible for the liabilities legally and necessarily incident to *486it. In Norfleet v. Cromwell, 70 N. C., 634, imported also on a former appeal, 64 N. C., 1, defendant, tbe grantee of lands draining into a canal, was sued for bis pro rata of necessary repairs thereto on a covenant made by defendant’s grantor. After bold-ing defendant liable by reason of tbe covenant, being one running witb tbe land, tbe Court, on page 641 of tbe second appeal, proceeded as follows: “Independently of tbis, however, there are two' arguments which might be out of place in a mere court of law, but which a court of equity is entitled to notice, that must be considered conclusive of the question:
“1. The consideration for the covenant was the grant of an easement which became appurtenant to the land, and passed with it to the defendant on his purchase. This easement he has accepted and enjoyed, and it is his only title to drain the land into the canal. The principle is generally conceded, and it is certainly equitable, that when the benefit and burden of a contract are inseparably connected, both must go together, and liability to the burden is a necessary incident to the right to the benefit. Qui sentit commodum sentire debet et onus; Notes to Spencer's case, 1 Smith L. C., 143; Savage v. Mason, 3 Cushing, 318; Coleman v. Coleman, 7 Harriss, 100.” The principle is eminently sound and has been approved with us in different cases and in other courts of recognized authority. Younce v. Lumber Co., 148 N. C., 34; R. R. v. R. R., 147 N. C., pp. 368-385; R. R. v. Bank, 42 Neb., 469; Smith v. Rodgers, 14 Ind., 224.
The present defendant, then, having taken over the contract with full notice and knowledge of the terms, and being bound by its covenants to build the railroad, as far as this could be effected by agreement between the parties, has elected to repudiate the obligation, and, it having been fully established that this agreement to build the road over the land was allowed substantial effect in reducing the selling price of the timber, under the general equitable principle of indebitatus assumpsit, as stated in our former decision, the defendant should make good the loss which the plaintiff has suffered, to be properly admeasured by the difference between the contract price and the actual values. *487Tbe rights of tbe parties have been properly adjusted, under these principles, and we find no reason for disturbing tbe results of tbe trial. It bas been repeatedly beld in tbis State tbat these contracts, conveying standing timber, are contracts concerning realty, and must be so considered and dealt with in determining tbe rights of tbe parties, and, tbis being true, several of tbe authorities heretofore cited are to tbe effect tbat tbe covenant in question here is one running with tbe land (Norfleet v. Cromwell, supra; Ga. Ry. v. Reeves, supra; Burbank v. Pittsburg, supra), and as such binding on tbe present owner to tbe extent tbat tbe same is lawful, whether with or without notice; see generally on tbis subject, tbe well considered case of Wiggins v. Pender, 132 N. C., 628; but, it having been clearly established tbat tbe Cumberland Company bas taken an assignment of tbe entire contract, with full notice and knowledge of its terms, we rest our decision on tbe principle tbat tbis company, having accepted tbe benefits of tbe contract, must also come under its burdens and tbe legal liabilities incident to them. We are not unmindful of tbe fact tbat tbe suit was instituted to collect tbe penalty, and tbat tbis is tbe specific prayer for relief, but all of tbe issuable and relevant facts having been made to appear both by allegation and proof, tbe relief may be awarded according to tbe facts established, and tbe prayer for relief is not of tbe substance. There is no error, and tbe.judgment in plaintiff’s favor must be
Affirmed.