2.
The subject will be considered with reference, 1. To the kind of claim
or obligation on which this action may be maintained. 2. The form of the
declaration. 3. The plea. 4. The judgment.
3.-
1. To support this action, there must be a breach of a promise under
seal. 6 Port. R. 201; 5 Pike, 263; 4 Dana, 381; 6 Miss. R. 29. Such
promise may be contained in a deed-poll, or indenture, or be express or
implied by. law from the terms of the deed; or for the performance of
something in futuro, or that something has been done; or in some cases,
though it relate to something in presenti, as that the covenantor has, a
good title. 2 Saund. 181, b. Though, in general, it is said that
covenant will not lie on a contract inpresenti, as on a covenant to
stand seized, or that a certain horse shall henceforth be the property
of another. Plowd. 308; Com. Dig. Covenant, A 1; 1 Chit. PI.. 110. The
action of covenant is the peculiar remedy for the non-performance of a
promise under seal, where the damages are unliquidated, and depend in
amount on the opinion of a jury, in which case neithor debt nor
assumpsit can be supported but covenant as well as the action of debt,
may be maintained upon a single bill for a sum certain. When the breach
of the covenant amounts to misfeasance, the covenantee has an election
to proceed by action of covenant, or by action on the case for a tort,
as against a lessee, either during his term or afterwards, for waste; 2
Bl. R. 1111; 2 Bl. R. 848; but this has been questioned. When the
contract under seal has been enlarged by parol, the substituted
agreement will be considered, together with the original agreement, as a
simple contract. 2 Watt's R. 451 1 Chit. Pl. 96; 3 T. R. 590.
4.
- 2. The declaration must state that the contract was under seal and it
should make profert of it, or show some excuse for the omission. 3 T.
11. 151. It is not, in general, requisite to state tho consideration of
the defendant's promise, because a contract under seal usually imports a
consideration; but when the performance of the consideration
constitutes a condition precedent, such performance must be averred. So
much only of the deed and covenant should be set forth as is essential
to the cause of action: although it is usual to declare in the words of
the deed, each covenant may be stated as to its legal effect. The breach
may be in the negative of the covenant generally 4 Dall. R. 436; or,
according to the legal effect, and sometimes in the alternative and
several breaches may be assigned at common law. Damages being the object
of the suit, should be laid sufficient to cover the real amount. Vide 3
Serg. & Rawle, 364; 4 Dall. R. 436 2 Yeates' R. 470 3 Serg. &
Rawle, 564, 567; 9 Serg. & Rawle, 45.
5.
- 3. It is said that strictly there is no general issue in this action,
though the plea of non est factum has been said by an intelligent
writer to be the general issue. Steph. Pl. 174. But this plea only puts
in issue the fact of scaling the deed. 1 Chit. Pl. 116. Non infregit
conventionem, and nil debet, have both been held to be insufficient.
Com. Dig. Pleader, 2 V 4. In Pennsylvania, by a practice peculiar to
that state, the defendant may plead covenants and under this. plea, upon
notice of the special matter, in writing, to the plaintiff, without
form, he may give anything in evidence which he might have pleaded. 4
Dall. 439; 2 Yeates, 107; 15 Serg. & Rawle, 105. And this evidence,
it seems, may be given in the circuit courts of the United States in
that state without notice, unless called for. 2 W. C. C. R. 4 5 6.
6.
- 4. The judgmeut is that the plaintiff recover a named sum for his
damages, which he has sustained by reason of the breach or breaches of
covenant, together with costs.
COVENANT,
contracts. A covenant, conventio, in its most general signification,
means any kind of promise or contract, whether it be made in writing or
by parol. Hawk. P. C. b. 1, c. 27, 7, s. 4. In a more technical sense,
and the one in which it is here considered, a covenant is an agreement
between two or more persons, entered into in writing and under seal,
whereby either party stipulates for the truth of certain facts, or
promises to perform or give something to the other, or to abstain from
the performance of certain things. 2 Bl. Com. 303-4; Bac. Ab. Covenant,
in pr.; 4 Cruise, 446; Sheppard, Touchs. 160; 1 Harring. 151, 233 1
Bibb, 379; 2 Bibb, 614; 3 John. 44; 20 John. 85; 4 Day, 321.
2.
It differs from an express assumpsit in this, that the former may be
verbal, or in writing not under seal, while the latter must always be by
deed. In an assumpsit, a consideration must be shown; in a covenant no
consideration is necessary to give it validity, even in a court of
equity. Plowd. 308; 7 T. R. 447; 4 Barn. & Ald. 652; 3 Bingh. 111.
3. It is proposed to consider first, the general requisites of a covenant; and secondly, the several kinds of covenants.
4. - 1. The general requisites are, 1st. Proper parties. 2d. Words of agreement. 3d A legal purpose. 4th. A proper form.
5.
- 1st. The parties must be such as by law can enter into a contract. If
either for want of understanding, as in the case of an idiot or
lunatic; or in the case of an infant, where the contract is not for his
benefit; or where there is understanding, but owing to certain causes,
as coverture, in the case of a married woman, or duress, in every case,
the parties are not competent, they cannot bind themselves. See Parties
to Actions.
6.
- 2d. There must be an agreement. The assent or consent must be mutual
for the agreement would be incomplete if either party withheld his
assent to any of its terms. The assent of the parties to a contract
necessarily supposes a free, fair, serious exercise of the reasoning
faculty. Now, if from any cause, this free assent be not given, the
contract is not binding. See Consent.
7.
- 3d. A covenant against any positive law, or public policy, is,
generally speaking, void. See Nullity; Shep. Touchs. 163. As an example
of the first, is a covenant by one man that he will rob another; and of
the last, a covenant by a merchant or tradesman that he will not follow
his occupation or calling. This, if it be unlimited, is absolutely void
but, if the covenant be that he shall not pursue his business in a
particular place, as, that he will not trade in the city of
Philadelphia, the covenant is no longer against public policy. See Shep.
Touchs. 164. A covenant to do an impossible thing is also void. Ib.
8.
- 4th. To make a covenant, it must, according to the definition above
given, be by deed, or under seal. No particular form of words is
necessary to make a covenant, but any words which manifest the intention
of the parties, in respect to the subject matter of the contract, are
sufficient. Sec numerous examples in Bac. Abr. Covenant, A Selw. N. P.
469; Com. Dig. Covenant, A 2; 3 Johns. R. 44; 5 Munf. 483.
9.
In Pennsylvania, Delaware, and Missouri, it is declared by statute that
the words grant, bargain, and sell, shall amount to a covenant that the
grantor was seised of an estate in fee, free from all incumbrances done
or suffered by him, and for quiet enjoyment against his acts. But it
has been adjudged that those words in the Pennsylvania statute of 1715,
(and the decision will equally apply to the statutory language in the
other two states,) did not amount to a general warranty, but merely to a
covenant that the grantor had not done any act, nor created any
incumbrance whereby the estate might be defeated. 2 Bin. 95; 11 S. &
R. 111, 112; 4 Kent, Com. 460.
10.
- 2. The several kinds of covenants. They are, 1. Express or implied.
1. An express, covenant, or a covenant in fact, is one expressly agreed
between the parties and inserted in the deed. The law does not require
any particular form to create an express covenant. The formal word
"covenant" is therefore not indispensably requisite. 2. Mod. 268; 3 Keb.
848; 1 Leon, 324; 1 Bing. 433; 8 J. B. Moore, 546; 1 Ch. Cas. 294; 16
East, 352; 12 East, 182 n.; 1 Bibb, 379; 2 Bibb 614; 3 John. 44; 5
Cowen, 170; 4 Day, 321 4 Conn. 508; 1 Harring. 233. The words "I
oblige;" "agree," 1 Ves. 516; 2 Mod. 266; or, "I bind myself to pay so
much such a day, and so much such another day;" Hardr. 178; 3 Leon. 119,
Pl. 199; are held to be covenants; and so are the word's of a bond. 1
Ch. Cas. 194. But words importing merely an order or direction that
other persons should pay a sum of money, are not a coveiaant. 6 J. B.
Moore, 202, n. (a.)
11.
- 1. An implied covenant is one which the law intends and implies,
though it be not expressed in words. 1 Common Bench Rep. 402; co. Lit.
139, b; Vaugnan's Rep. 118; Rawle on Covenants, 364. There are some
words which of themselves do not import an express covenant, yet being
made use of in certain contracts, have a similar operation and are
called covenants in law. They are as effectually binding on the parties
as if expressed in the most unequivocal terms. Bac. Ab. Covenant, B. A
few examples will fully explain this. If a lessor demise and grant to
his lessee a house or lands for a certain term, the law will imply a
covenant on the part of the lessor, that the lessee shall during the
term quietly enjoy the same against all incumbrances. Co. Litt. 384.
When in a lease the words "grant," 1 Mod. 113 Freem. 367; Cro. Eliz.
214; 4 Taunt. 609; "grant and demise, " 4 Wend. 502; "demise," 10 Mod.
162; 4 Co. 80; Hob. 12; or " demiserunt," I Show. 79 1 Salk. 137, are
used, they are so many instances of implied covenants. And the words
"yielding and paying" in a lease, imply a covenant on the part of
lessee, that he will pay the rent. 9 Verm. 151; 3 Penn. 461, 464.
12.
- 2. Real and personal. 1st. A real covenant is one which has for its
object something annexed to, or inherent in, or connected with land or
other property. Co Litt. 334; enk 241; Cruise, Dig. tit. 32, c. 25, s.
22; Platt. on Cov. 60, 61; 2 Bl. Com. 304. A covenant real, which
necessarily runs with the land, as to pay rent, not to cut timber, and
the like, is said to be an inherent covenant. Shep. To. 161. A covenant
real runs with the land and descends to the heir; it is also transferred
to a purchaser. Such covenants are said to run with the land, so that
he who has the one is subject to the other. Bac. Ab. Covenants, E 2. See
2 Penn. 507; 10 Wend 180; 12 Mass. 306; 17 Mass. 586; 5 Cowen, 137; 5
Ham. 156; 5 Conn. 497; 1 Wash. C. C. 375; 8 Cowen 206; 1 Dall. 210; 11
Shep. 283; 6 Met. 139; 3 Mete. 81; 3 Harring. 338; 17 Wend. 136.
13.
- 2. As commonly reckoned, there are five covenants for title, viz: 1.
Covenant for seisin. 2. That the grantor has perfect right to convey. 3.
That the grantee shall quietly possess and enjoy the premises without
interuption, called a covenant for quiet enjoyment. 4. The covenant
against incumbrances. 5. The covenant for futher assurance. 6. Besides
these covenants, there is another frequently resorted to in the United
Staes, which is relied on more, perhaps, than any other, called the
covenant of warranty. See Rawle on Covenants for Title, where the import
and effect of these covenants are elaborately and luminously discussed.
14.
- 3. A personal covenant relates only to matters personal, as
distinguished from real, and is binding on the covenantur during life,
and on his personal representatives after his decease, in respect of his
assets. According to Sir William Blackstone, a personal convenant may
be transformed into a real, by the mere circumstance of the heirs being
named therein, and having assets by descent from the covenantor. 2 Bl.
Com 304. A covenant is personal in another sense, where the covenantor
is bound to fulfil the covenant himself; as, to teach an apprentice.
F.N.B. 340, A.
15.
Personal covenants are also said to be transitive and intransitive; the
former, when the duty of performing them passes to the covenantor's
representatives; the latter, when it is limited to himself; as, in the
case of teaching an apprentice. Bac. Ab. h.t.
16.
As they affect each other in the same deed, covenants may be divided
into three classes. 1st. Dependent covenants are those in which the
performance, of one depends on the performance of the other; there may
be conditions which must be performed before the other party is liable
to an action on his covenant. 8 S. & R. 268; 4 Conn. 3; 1 Blackf.
175; John. 209; 2 Stew. & Port. 60; 6 Cowen 296; 3 Ala. R. 330; 3
Pike 581; 2 W. & S. 227; 5 Shep. 232; 11 Verm. 549; 4 W. C. C. 714;
Platt on Cov. 71; 2 Dougl. 689; Lofft, 191; 2 Selw. N. P. 443, 444. To
ascertain whether covenants are dependent or not, the intention of the
parties is to be sought for and regarded rather than the order or time
in which the acts are to be done, or the structure of the instrument, or
the arrangements of the covenant. 4 Wash. C. C. 714; 1 Root, 170; 4
Rand. 352; 4 Rawle, 26; 5 Wend. 496; 2 John. 145; 13 Mass. 410; 2 W.
& S. 227; 4 W. & S. 527; Willis, 157; 7 T. R. 130; 8 T.R. 366; 5
B. & P. 223; 1 Saund. 320 n.
17.
- 2d. Some covenants are mutual conditions to be performed at the same
time; these are concurrent covenants. When, in these cases, one party is
redy and offers to perform his part, and the other refuses or neglects
to perform his, he who is ready and offers, has fulfilled his
engagement, and may maintain an action for the default of the other,
though it is not certain that either is obliged to do the first act. 4
Wash. C. C. 714; Dougl. 698; 2 Selw. N. P. 443; Platt. on Cov. 71.
18.-
- 3d. Covenants are independent or mutual, when either party may
recover damages from the other for the injury he may have received by a
breach of the covenants in his favor, and when it is no excuse for the
defendant to allege a breach of the covenants on the part of the
plaintiff. 2 Wash. C. C. R. 456; 5 Shepl. 372; 4 Leigh, 21; 3 Watts
& S. 300; 13 Mass. 410; 2 Pick. 300; 2 John. 145; 10 John. 203;
Minor 21; 2 Bibb, 15; 3 Stew. 361; 1 Fairf. 49; 6 Binn. 166; 2 Marsh.
429; 7 John. 249; 5 Wend. 496; 3 Miss. 329; 2 Har. & J. 467; 4 Har.
& J. 285; 2 Marsh. 429; 4 Conn. 3.
19.
Covenants are affirmative and negative. 1st. An affirmative covenant is
one by whicb the covenantor binds himself that something has already
been done or shall be performed hereafter. Such L convenant will not
deprive a man of a right lawfully enjoyed by him independently of the
covenant; 5 as, if the lessor agreed with the lessee that he shall have
thorns for hedges growing upon the land, by assignment of the lessor's
bailiff; here no restraint is imposed upon the exercise of that liberty
which the law allows to the lessee, and therefore he may take hedge-bote
without assignment. Dy. 19 b, pl. 115; 1 Leon, 251.
20.
- 2d. A negative covenant is one where the party binds himself that he
has not performed and will not perform a certain act; as, that he will
not encumber. Such a covenant cannot be said to be performed until it
becomes impossible to break it. On this ground the courts are unwilling
to construe a covenant of this kind to be a condition precedent.
Therefore, where a tailor assigned his trade to the defendant, and
covenanted thenceforth to desist from carrying on the said business with
any of the customers, and the defendant in consideration of the
performance thereof, covenanted to pay him a life annuity of 190, it was
held that if the words "in consideration of the performance thereof,"
should be deemed to amount to a condition precedent, the plaintiff would
never obtain his annuity; because as at anytime during his life he
might exercise his former trade, until his death it could never be
ascertained whether he had performed the covenant or not. 2 Saund. 156; 1
Sid. 464; 1 Mod. 64; 2 Keb. 674. The defendant, however, on a breach by
plaintiff, might have his remedy by a crossaction of covenant. There is
also a difference between a negative covenant, which is only in
affirmance of an affirmative covenant precedent, and a negative covenant
which is additional to the affirmative covenant. 1 Sid. 87; 1 Keb. 334,
372. To a covenant of the former class a plea of performance generally
is good, but not to the latter; the defendant in that case must plead
specially. Id.
21.
Covenants, considered with regard to the parties who are to perform
them, are joint or several. 1st. A joint covenant is one by which
several parties agree to perform or do a thing together. In this case
although there are several covenantors there is but one contract, and if
the covenant be broken, all the covenantors living, must be sued; as
there is not a separate obligation of each, they cannot be sued
separately.
22.
- 2d. A several covenant is one entered into by one person only. It
frequently happens that a number of persons enter into the same
contract, and that each binds himself to perform the whole of it; in
such case, when the Contract is under seal, the covenantors are
severally bound for the performance of it. The terms usually employed to
make a several covenant are " severally," or " each of us." In
practice, it is common for the parties to bind themselves jointly and
severally, and then the covenant is both joint and several. Vide Hamm.
on Parties 19; Cruise, Dig. tit. 32, c. 25, s. 18; Bac. Ab. Covenant D.
23.
Covenants are executed or executory. 1st. An executed covenant is one
which relates to an act already performed. Shep. To. 161.
24. - 2d. An executory covenant is one to be performed at a future time. Shep. To. 161.
25.
Covenants are obligatory or declaratory. 1st. An obligatory covenant is
one which is binding on the party himself, and shall never be construed
to raise a use. 1 Sid. 27; 1 Keb. 334.
26. - 2d. A declaratory covenant is one which serves to limit and direct uses. 1 Sid. 27; 1 Heb. 334.
27.
Covenants are principal and auxiliary. 1st. A principal covenant is one
which relates directly to the principal matter of the contract entered
into between the parties; as, if A covenants to serve B for one year.
28.
- 2d. An auxiliary covenant is one, which, not relating directly to the
principal matter of the contract between the parties, yet relates to
something connected with it; as, if A covenants with B, that C will
perform his covenant to serve him for one year. In this case, if the
principal covenant is void, the auxiliary is discharged. Anstr. 256.
29.
Covenants are legal or illegal. 1st. A legal covenant is one not
forbidden by law. Covenants of this kind are always binding on the
parties.
30.
- 2d. An illegal covenant is one forbidden by law, either expressly or
by implication. A covenant entered into, in violation of, the express
provision of a statute is absolutely void. 5 Har. & J. 193; 5 N. H.
Rep. 96; 6 N. H. Rep. 225; 4 Dall. 298; 6 Binn. 321; 4 S.& R. 159; 1
Binn. 118; 4 Halst. 252. A covenant is also void, if it be of immoral
nature; as, a covenant for future illicit intercourse and cohabitation; 3
Monr. 35; 3 Burr. 1568; S. C. 1 Bl. Rep. 517; 1 Esp. 13; 1 B. P. 340;
or against public policy; 5 Mass. 385; 7 Greenl. 113; 4 Mass. 370; 5
Halst. 87; 4 Wash. C. C. 297; 11 Wheat. 258; 3 Day, 145; 2 McLean, 464; 7
Watts, 152; 5 Watts & S. 315; 5 How. Miss. 769; Geo. Decis. part 1,
39 in restraint of trade, when the restraiut is general; 21 Wend. 166;
19 Pick. 51; 6 Pick. 206; 7 Cowen, 307; or fraudulent between the
parties; 5 Mass. 16; 4 S. & R. 488; 4 Dall. 250; 7 W. & S. 111;
or third persons; 3 Day, 450; 14 S. & R. 214; 3 Caines, 213; 15
Pick. 49; 2 John. 286 12 John. 306.
31.
Covenants, in the disjunctive or alternative, are those which give the
covenantor the choice of doing, or the covenontee the choice of having,
performed one of two or more things at his election; as, a covenant to
make a lease to Titus, or pay him one hundred dollars on the fourth day
of July, as the covenantor, or the covenantee, as the case may be, shall
prefer. Platt on Cov. 21.
32.
Collateral covenants are such as concern some collateral thing, which
does not at all, or not so immediately relate to the thing granted; as,
to pay a sum of money in gross, that the lessor shall distrain for rent,
on some other land than that which is demised, or the like. Touchs.
161; 4 Burr. 2446; 2 Wils. R. 27; 1 Ves. R. 56. These covenants are also
termed covenants in gross. Vide 5 Barn. & Ald. 7, 8; Platt on Cov.
69, 70.
COVENANT NOT TO SUE.
This is a covenant entered into by a party who had a cause of action at
the time of making it, and by which he agrees not to sue the party
liable to such action.
2.
Covenants of this nature, are either covenants perpetual not to sue, or
covenants not to sue for a limited time; for example, seven years.
3.
- 1. Covenants perpetual not to sue. These will be considered with
regard to their effect as relates, 1. To the covnantee; 2. To his
partners or co-debtors.
4.
- 1. A covenant not to sue the covenantee at all, has the effect of a
release to him, and may be pleaded as such to avoid a circuity of
action. Cro. EIiz. 623; 1 T. R. 446; 8 T. R. 486; 1 Ld. Raym 688; S. C.
Holt, 178; 2 Salk. 575; 3 Salk. 298; 12 Mod. 415, 548; 7 Mass. 153, 265;
16 Mass. 24; 17 Mass. 623. And see 11 Serg. & Rawle, 149.
5.
- 2. Where the covenantee is jointly and severally bound with another
to the covenantor, a covenant not to sue him will be no protection to
the other wbo may be sued on his several obligations and such a covenant
does not mount to a release to him. 2 Salk. 575; S. C. 12 Mod. 551; 8
T. R. 168; 6 Munf. 6; 1 Com. 139; 4 Greenl. 421; 2 Dana, 107; 17 Mass.
623, 628; 16 Mass. 24; 8 Mass. 480. A covenant not to sue, entered into
by only one of several partners, cannot be set up as a release in an
action by all the partners. 3 P. & D. 149.
6.
- 2. Covenant not to sue for - a limited time. Such a covenant does not
operate as a release, nor can it be pleaded as such, but is a covenant
only for a breach of which the obliger may bring his action. Carth. 63; 1
Show. 46; Comb 123, 4; 2 Salk. 573; 6 Wend. 471.
COVENANT FOR QUIET ENJOYMENT.
A covenant usually contained in a lease, by which the lessor covenants
or agrees that the tenant shall quietly enjoy the premises leased. 11
East, 641.
2.
Such a covenant is express or implied; express, when it is so mentioned
in the deed it is implied, either from the words used, or from the
conduct of the lessor. The words "grant" or "demise" are held to amount
to an implied covenant for quiet enjoyment, unless afterwards restrained
by a qualified express covenant. 1 Chit. Pr. 344.
COVENANT TO STAND SEISED TO USES. A species of conveyance which derives its effect from the statute of uses, and operates without transmutation of possession.
2.
By this conveyance, a person seised of lands, covenant's that he will
stand seised of them to the use of another. On executing the covenant,
the other party becomes seised of the use of the land, according to the
terms of the use; and the statute immediately annexes the possession to
the use. This conveyance has the same force and effect as a common deed
of bargain and sale; the great distinction between them is, that the
former can only be made use of among near domestic relations, for it
must be founded on the consideration of blood or marriage. 2 Bl. Com.
338; 2 Bouv. Inst. n. 2080; 4 Kent Com 480; Lilly's Reg.h. t.; 1 Vern.
by Raithby, 40, n.; Cruise, Dig. tit. 32, c. 10; 11 John. R. 337; 1
John. Cas. 91; 7 Pick. R. 111; 1 Hayw.,R. 251, 259, 271, note; 1 Conn.
R. 354; 20 John. R. 85; 4 Mass. R. 135; 4 Hayw. R. 229; 1 Cowen, R. 622;
3 N. H. Rep. 234; 16 John. R. 515; 9 Wend. R. 641; 7 Mass. R. 384.
COVENANT FOR TITLE.
An assurance to the purchaser that the grantor has the very estate in
quantity and quality which he purports to convey. 11 East, 642. See 4
Dall. Rep. 439.
COVENANTEE. One in whose favor a covenant is made.
COVENANTOR. One who becomes bound to perform a covenant.
2.
To become a covenantor a person must be sui juris, and intend, at the
time of becoming bound, to covenant to perform some act mentioned in the
covenant. He can be discharged from his covenant by performance, or, by
the act of the covenantee, as the non-performance of a condition
precedent, a release, or a rescission of the contract.
COVENANTS PERFORMED,
pleading. In Pennsylvania, the defendant may plead covenants performed
to an action of covenant, and upon this plea, upon informal notice to
the plaintiff, he may give anything in evidence which he might have
pleaded. 4 Dall. 439; 2 Yeates, 107; 15 S. & R. 105. And this
evidence, it seems, may be given in the circuit court without notice
unless called for. 2 Wash. C. C. R. 456.
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