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of the parties. Andrews v. Ellison fc. 6 J. B. Moore 198;
. 17 Eng. Com. Law Rep. 24; Wood v. Miners Co. 7 Man. Gr. & Scott 936; 62 Eng. Com. Law Rep. 936. Any words in a deed which shew an agreement to do a thing make a covenant. Com. Dig. tit. Covenant (A2). The court is to look at the whole of the instrument and if they find it contains a clear agreement to do any act, whether in the way of covenant, proviso or exception, then an action may be maintained on the instrument for the breach of such agreement. Saltoun &c. v. Houstoun f*c. 1 Bingh. 433; 8 Eng. Com. Law Rep. 368; Andrews v. Ellison 8.c. 6 J. B. Moore 199; 17 Eng. Com. Law Rep. 24; Sampson 8c. v. Easterby, 9 Barn. & Cress. 505; 17 Eng. Com. Law Rep. 431; S. C. 6 Bingh. 644; 19 Eng. Com. Law Rep. 191. It will be found in these cases that where words of recital or reference manifested a clear intention that the parties should do certain acts, the courts have, from these, inferred a covenant to do such acts, and sustained actions of covenant for the non-performance, as if the instruments had contained express covenants to perform them. 5 Adol. & El. N. S. 683; 48 Eng. Com. Law Rep. 683.
Wherever, says Baron Park, the court can collect from the instrument an engagement on the one side to do or not to do something, it amounts to a covenant, whether it is in the recital or in any other part of the instrument. Great N. Railway Co. v. Harrison, 12 Com. Bench (3 J. Scott) 609; 74 Eng. Com. Law Rep. 609.
The agreement of both parties in an instrument under the seals of both that one should give the other a sum of money for certain of his lands, amounts to a covenant by the vendor to convey as well as by the vendee to pay. Pordage v. Cole, 1 Saund. 319; 6 Man. Gran. & Scott 175; 13 Com. Bench (4 J. Scott) 516 ; 60 Eng. Com. Law Rep. 174; 76 Id. 516.
An agreement of one man to transport salt, and of another to pay him therefor imporis an implied covenant on the part of the latter to allow and permit the former to transport the salt, and to furnish him with the agreed quantities for that purpose; the implied covenant of the one is the correlative of the express covenant of the other. White's adm'x v. Toncray, 5 Grat. 179.
A deed of bargain and sale for land, after setting out the parties to the deed and specifying the land and the interest conveyed, goes on as follows: “To have and to hold the above described piece or parcel of land free and clear from me, my heirs, executors, administrators and assigns, and from all other persons whatsoever, unto the said J. M. &c."
This clause was held by the supreme court of North Carolina to contain a covenant for quiet enjoyment. Midgett v. Brooks, 12 Iredell 147.
Where a clause of warranty being found in a demise not of a freehold interest, but of a term for years only, is not strictly and properly a warranty, the court looking at the words of the warranty may yet consider that they do, in their plain and literal meaning, import an agreement on the part of the lessor that the lessee shall enjoy the land demised during the term mentioned in the lease, and hold that they amount to a covenant to that effect. Williams v. Burrell, 1 Man. Gr. & Scott 429; 50 Eng. Com. Law Rep. 429.
The words, “the farm house and buildings being previously put in repair and kept in repair by the said Elizabeth Jones, (the lessor), were held to amount to a covenant by her to put and keep the premises in repair. Cannock v. Jones, 3 W. H. & G. 238.
So in many other cases there may be enough in the instrument to enable the court to gather and to collect from it a covenant. Corbyn v. Leader, 6 C. & P. 32; 10 Bingh. 275; 25 Eng. Com. Law Rep. 131, 266.
A covenant thus gathered and collected from the instrument, is not such an implied covenant as is to be considered merely a covenant in law; it differs nothing in its operation or legal consequences from an express covenant. Williams v. Burrell, 1 Man. Gr. & Scott 430; 50 Eng. Com. Law Rep. 430. Although a covenant in law might extend no farther than to protect such estate as the lessor could lawfully grant, which, in this case, was a term of years determinable with her own life, the court considered the covenant as if it were an express covenant for quiet enjoyment, extending to the term purported to be granted, and held consequently that the defendants were liable thereon as executors of the covenantor.
3. What words do not amount to a covenant.
It is not enough that a man has sealed and delivered a deed to maintain an action of covenant against him. A father or guardian may sign an indenture of apprenticeship to consent that his son or ward shall bind himself as an apprentice. If the father covenant that the son shall faithfully serve, an action will lie against the father for a breach of that covenant. Cuming v. Hill, 3 Barn. & Ald. 59; 5 Eng. Com. Law Rep. 220; but not otherwise. There may be words shewing what were the duties of the apprentice, yet unless the father or guardian has entered into a covenant for their performance, an action of covenant. will not lie against him.Blunt v. Melcher, 2 Mass. 231; Ackley v. Hoskins, 14 Johns. 374.
There must be words that are meant to operate as an agreement, and not merely as words of condition or qualification. Com. Dig. Covenant (A 3); 1 Roll. Abr. 518; Wolveridge v. Steward, 3 Moore & Scott 561; 30 Eng. Com. Law Rep. 315; Wahl v. Barroll f'c. 8 Gill 294, 5. A mortgage deed may have a proviso, that if a party pay a certain sum of money at a specified time, then the deed shall be void ; but an action will not lie on this proviso for the non-payment of the money; not an action of covenant, Drummond's adm'rs v. Richards, 2 Munf. 337; nor an action of debt, Barrell v. Glover &.c. 2 Gill 171. This shews that it is not enough that there are words importing an acknowledgment of liability; that such words are not always construed as a new engagement. Where a deed sets out the instrument under which the liability arose, and does not expressly affirm that liability, a covenant to pay is not necessarily implied. Courtney v. Taylor, 6 Man. & Grang. 870; 46 Eng. Com. Law Rep. 470.
The effect of a covenant is not given to a writing which was intended to be, and is, a mere statement of facts, made for the purpose of shewing that the real attitude and obligation of the parties to the writing were different from what might be implied from that which would be implied from the face of the note. Lytle's er'or v. Pope's adm'r Soc. 11 B. Monroe 311.
The court must be satisfied that the language does not merely shew that the parties contemplated that the thing might be done; it must amount to a binding agreement that the thing shall be done. James v. Cochrane, 7 W. H. & G. 177.
4. When there is an erpress covenant, effect to be given to
intention as expressed.
Where parties have expressly covenanted to perform certain acts, it does not follow that they must be held to have impliedly covenanted for every act convenient or even necessary for the perfect performance of their express covenants.
. “ It is one thing," says Lord Denman, " for the court to effectuate the intention of the parties to the extent to which they may have, even imperfectly, expressed themselves, and another to add to the instrument all such covenants as upon a full consideration the court may deem fitting for completing the intentions of the parties, but which they, either purposely or unintentionally, have omitted. The former is but the application of a rule of construction to that which is written; the latter adds to the obligations by which the parties have bound themselves, and is of course quite unauthorized, as well as liable to great practical injustice in the application. Aspdin v. Austin, 5 Adol. & El., N. S. 684; 48 Eng. Com. Law Rep. 684; Dunn v. Sayles, Id. 685. Upon this principle the court of appeals of Kentucky has decided that a writing, acknowledging the receipt of property from another for sale, does not import a covenant to pay over the money, Wilcosen f'c. v. Rix, 1 H. K. Marshall 421; and that neither from a covenant to sell tobacco at New Orleans for the best price that can be obtained, (Harris v. Ogg, 1 J. J. Marshall 411, nor from an instrument, acknowledging the receipt of a note for collection, can there be implied a covenant to pay the money when collected. Wenzell v. Breckenridge's ex'x fc. 3 Dana
In this case, though the instrument was without a seal, the action of covenant was brought under the Kentucky statute of 1812, mentioned in 1 Rob. Pract. 319; and the opinion of the court was, that no words had been used which could fairly be interpreted into a covenant to pay the money.
In Virginia where a covenant stated that the covenantor had received of the covenantee notes on men in this state for collection to a specified amount and he would be bound to the covenantee for the amount, the court of appeals decided that the covenant was not to pay at all events, but that the covenantor would use reasonable diligence in collecting the debts and would pay the amount collected upon request. Lockridge v. Carlisle, 6 Rand. 20.
The meaning, in a lease, of the word datus has been already adverted to; ante, 1 Rob. Pract. 417. A deed having no operation until delivery, when there is to it no date or an impossible date, the word date used in it must mean delivery; but if it has a sensible date, that word in other parts of the deed may mean the day of the date and not of the delivery ; in such case it is considered that the party executing the deed agrees that the day therein mentioned shall be the date for purposes of computation. Styles v. Wardle, 4 Barn. & Cress. 908; 10 Eng. Com. Law Rep. 468; Lewis v. Hillard, 1 Sid. 374. The habendum of the lease is considered as marking the duration of the lessee's interest while its operation as a grant is merely prospective. Wyburd v. Tuck, i Bos. & Pul. 464; Shaw v. Kay, 1 W. H. & G. 411.
A bill of sale of a slave bears date the 1st of September, but is actually executed and delivered on the 14th of October following; the covenant of warranty is expressed as usual in the present tense. Must it be taken as relating to the day on which it was executed, although the actual sale took place the 1st of September, and although it was the design of the parties in giving that date to the writing to make the covenant relate to that day? The court of appeals of Kentucky has given a negative answer to this question. The extraneous fact that the writing was not executed until a day subsequent to that on which it bears date was not allowed to change the construction of the instrument and defeat the intention of the parties. Butler v. Elliston, 4 Dana 88. Such a fact might,
a however, be shewn, when the shewing it would not defeat but carry out the intention. Cordle v. Burch, 10 Grat. 482.
5. How far one covenant or clause is qualified by another.
It has often been a question how far a covenant is to be controlled or qualified by another clause in the deed. Hesse v. Stevenson, 3 Bos. & Pul. 565; Saward v. Anstey, 2 Bingh. 519; 9 Eng. Com. Law Rep. 506. The authorities warrant the court in comparing the clause under immediate consideration with all which precedes and follows it (even though not forming parts of the same sentence, and with the nature of the obligation entered into for the purpose of discovering and effectuating the intention really expressed by the parties. Ld. Denman, C. J. 6 Adol. & El. 634; 33 Eng. Com. Law Rep. 155. General introductory words of one covenant for title may be applied to another in which they are not found, where from what is found in other parts of the deed, it appears that such must have been the intention of the parties. Nind v. Marshall, 3 J. B. Moore 703; 1 Brod. & Bingh. 319; 5 Eng.
5 Com. Law Rep. 95; 7 Man. Gr. & Scott 341; 62 Eng. Com. Law Rep. 341. A covenant which if taken by itself is general may thus be qualified by words introducing the whole series of covenants; it may be qualified by a preceding or subsequent restricted covenant when the two are connected together by words which extend to both. Browning v. Wright, 2 Bos. & Pul. 13; Foord v. Wilson, 8 Taunt. 543; 4 Eng. Com. Law Rep. 208; Stannard v. Forbes fc. 6 Adol. & El. 572; 33 Eng. Com. Law Rep. 155.
There seems, however, to be but one English case where a general covenant has been held to be qualified by others, unless in some way connected with them. That case is Milner v. Horton, McClel. 647. The court of king's bench having considered that case, has not felt bound by its authority; a covenant for title which was general and unqualified in itself, and unconnected with any words in the qualified covenant, it considered must, in a court of law, be regarded as an absolute covenant for title. Smith v. Compton 8c. 3 Barn. & Adol.
fc& 189; 23 Eng. Com. Law Rep. 55. When there are two express covenants, for example, one that the lessor has power to