« EelmineJätka »
a good right, full power, and lauful and absolute authority to convey; and assigned a breach, that J. W. had not at the time of making the said indenture, nor at any time before or since, good right, full power, and lawful and absolute authority to convey or assure the premises to the plaintiff in manner aforesaid. The defendants prayed oyer of the indenture, (by which it appeared that J. W. covenanted for himself, his heirs, executors, and administrators, to make a cartway, and that the plaintiff should quietly enjoy without interruption, from himself or any person claiming under him, and lastly, that he, his heirs, or assigns, and all persons claiming under him, should make further assurance,) and then demurred; (after argument, it was holden, that the words “that he had a good right, full power, and lawful and absolute authority to convey,” were either part of the preceding special covenant “ that he was notwithstanding any act by him done to the contrary, lawfully and absolutely seised in fee;" or if not, that they were qualified and restrained by all the other special covenants to the acts of himself and his heirs.
Covenant for quiet enjoyment during a term," without the let, suit, interruption, &c. of J. M. his executors, administrators, or assigns, or any of them, or any other person or persons whomsoever, having or claiming any estate or right in the premises, and that free and clear, and freely and clearly discharged, or otherwise, by J. M. his heirs, executors, or administrators, defended, kept harmless, and indemnified from all former gifts, grants, &c. made or suffered by J. M. or by their or either of their acts, means, default, procurement, consent, or privity,” preceded by a covenant that the lease was a good lease, notwithstanding any act of J. M. and followed by a covenant for further assurance by J. M. his executors, administrators, and all persons whomsoever claiming, during the residue of the term, any estate in the premises under him or them ; it was holden m, Park, J. dissentiente, that the covenant for quiet enjoyment extended only against the acts of the covenantor and those claiming under him, and not against the acts of all the world. But where releasors covenanted, that, notwithstanding any act, &c. by them done to the contrary, they were seised of the land in fee; and also, that they, notwithstanding any such matter or thing as aforesaid, had good right to grant the
m Nind v. Marshall, 1 Brod. and Bingh.
See also Barton v. Fitzgerald, 15
1 Saund. 51. Hesse v. Stevenson, 8 B. & P. 568. Belcher v. Sikes, 3 B. & C. 185. Smith v. Compton, 3 B. & Ad. 189.
premises; and likewise, that the releasee should quietly enjoy the same without the lawful let or disturbance of the releasors, or their heirs or assigns, or for or by any other person : and that the releasee should be indemnified by the releasors and their heirs against all other titles, charges, and incumbrances, except the chief rent payable to the lord of the fee; it was holden, that the general words of the covenant for quiet enjoyment, were not, in necessary construction,
to be restrained by the language of the antecedent covenants for title and right to convey; although those antecedent covenants were certainly covenants of a limited kind, and provided only against the acts of the releasors; Lord Ellenborough, C. J. (who delivered the opinion of the court) observing, “that the covenant for title, and the covenant for right to convey, are indeed what is somewhat improperly called synonymous covenants; they are, however, connected covenants, generally of the same import and effect, and directed to one and the same object; and the qualifying language of the one may therefore properly enough' be considered as virtually transferred to and included in the other of them. But the covenant for quiet enjoyment is of a materially different import, and directed to a distinct object. The covenant for title is an assurance to the purchaser, that the grantor has the very estate in quantity and quality which he purports to convey, viz. in this case an indefeasible estate in fee simple. The covenant for quiet enjoyment is an assurance against the consequences of a defective title, and of any disturbances thereupon. For the purpose of this covenant, and the indemnity it affords, it is immaterial in what respects, and by what means, or by whose acts, the eviction of the grantee or his heir takes place; if he be lawfully evicted, the grantor, by such his covenant, stipulates to indemnify him at all events. And it is perfectly consistent with reason and good sense, that a cautious grantor should stipulate in a more restrained and limited manner for the particular description of title which he purports to convey, than for quiet enjoyment. The C. J. added, that he did not find any case in which it is held that the covenant for quiet enjoyment is all one with the covenant for title, or parcel of that covenant, or in necessary construction to be governed by it, otherwise than as, according to the general rules for the construction of deeds, every deed (as was said by Hobart, C. J. Winch, Rep. 93. Sir George Trenchard v. Hoskins,) is to be construed according to the “intention of the parties, and the intent ought to adjudged of the several parts of the deed, as a general issue out of the evidence; and the intent ought to be picked out of every part, and not out of one word only." Consistently, therfore, with that case, and with every other that I am aware of, we are warranted in giving effect to the general words of the covenant for quiet enjoyment; and which are entitled to more weight in this case, inasmuch as they immediately follow and enlarge the special words of covenant against disturbance by the grantors themselves; and to restrain the generality of these words, thus immediately preceded by express words of a narrower import, would be a much stronger thing than to restrain words of like generality by an implied qualification arising out of another covenant where no such general words occurred. The person using the general words, could not forget that he had immediately before used special words of a narrower extent.
If the covenant containing both the special and general words stood by itself, there would be no pretence for refusing effect to the larger words; and if this could not be done in favour of express words of a narrower import in the same covenant, I cannot possibly understand upon what ground it should be done in favour of implied words of narrower import, which occur in another separate covenant, addressed, as has been before said, to a distinct object."
Where A. by indenture, in consideration of a certain sum, in nature of a fine, and of a yearly rent, demised land for twenty-one years, and covenanted, at the end of eighteen years of the term, or before, on request of the lessee, to grant a new lease of the premises "for the like fine, for the like term of twenty-one years, at the like yearly rent, with all covenants as in that indenture were contained;" it was holden, that this covenant was satisfied by a tender of a new lease for twenty-one years, containing all the former covenants, except the covenant for future renewal.
In covenantP, the plaintiff declared upon an indenture, whereby the defendant demised to the plaintiff, for a term of years, certain parts of a messuage then lately parted off from the part occupied by the defendant, with certain easements belonging to the same, and a portion of an adjoining yard; and the defendant covenanted that he would permit the lessee (the plaintiff,) to have the use of the pump in the said yard jointly with the defendant, whilst the same should remain there, paying half the expenses of keeping it in repair. The plaintiff assigned for breach, that during the continuance of the lease, the defendant without reasonable cause, and in order to injure the plaintiff, took away the pump, although plaintiff was willing to have paid half the expenses of keeping the same in repair. On demurrer it was holden, that the breach was ill assigned; for the use (6) of the pump was not a specific subject of the demise; and by the introduction of the words, “whilst the same should remain there,” it appeared that the lessor meant to reserve to himself the liberty of removing the pump, from whatever capricious or unreasonable motive he might do so; and that it was not inconsistent with the stipulation, that the lessee should pay half the expenses of repair, whilst the pump remained on the demised premises.
o Iggulden v. May, 7 East, 237, af- p Rhodes v. Bullard, 7 East, 116.
firmed on error, in Exch. Chr. 2 N.R. 449.
Lessee covenanted, that he and assigns would insure the demised premises and keep them insured during the term, and deposit the policy with the lessor; it was holden 9, that the true construction of this covenant was, not that the lessee should effect one policy, and keep that policy on foot, but that the lessee and his assigns, should always keep the premises insured by some policy or another, and that it was a breach, if they were uninsured at any one time, and a continuing breach for any portion of time that they remained uninsured. Wherer a lessee of a house and garden for term of years covenanted with the lessor not to use or exercise, or permit or suffer to be used or exercised, upon the demised premises, or any part thereof, any trade or business, &c. without the license of the lessor, &c., and afterwards without the license of the lessor assigned the lease to a schoolmaster, who carried on his business in the house and premises, it was holden that the assignment was a breach of this covenant. But where the covenant' was not to exercise particular trades or businesses specified, “or any offensive trade,” it was holden, that it was not a trade to use the house as a lunatic asylum; the word trade in this covenant being applicable only to a business conducted by buying and selling. Where in covenantt for the further yearly rent stipulated for in case of converting pasture into tillage, the defendant pleaded that the plaintiff accepted the original rent as and for the rent due,
q Doe d. Flower v. Peck, 1 B. and Ad.
428. r Doe d. Bish v. Keeling, 1 M. & S.
s Doe d. Wetherell v. Bird, 2 Ad. and
Cr. and M. 734. See Astley v.
(6) The demise of the use of a thing is the demise of the thing itself. Pomfret v. Ricroft, 1 Saund. 321.
without demanding the additional rent, it was holden, that the right of the plaintiff to recover a sum of money as stipulated damages and as additional rent, was not waived by receiving the sum due for the original rent; aliter if it were a forfeiture.
III. Of the different kinds of Covenants :
with the Land.
1. Of Express Covenants, and herein of Express Covenants
running with the Land.
There is not any precise form of words necessary to constitute an express covenantq; any form of words or mode of expression in a deed, which clearly evinces an agreement, will amount to a covenant, for a breach whereof an action of covenant may be maintained. As if it be agreed between A. and B.", by deed, that B. shall pay to A. a sum of money for his lands on a certain day : these words amount to a covenant by A. to convey the lands to B. on that day. So if lessee for years covenant to repairs, “provided always, and it is agreed, that the lessor shall find great timber;" this word agreed will make a covenant on the part of the lessor to find great timber. Secus, if the word agreed had been omittedt. So if A. lease to B. on conditionu that he shall acquit the lessor of charges, ordinary and extraordinary, and shall keep and leave the houses at the end of the term in as good a plight as he found them; if he does not leave them in good repair, an action of covenant lies. So where covenant was
q Moor, 135.
274. T. Raym. 183. S. C. $ IR
br. 518. (C.) pl. ?.
t 1 Rol. Abr. 518. (C.) pl. 3.