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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 &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 ex'or v. Pope's adm'r &c. 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 express 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 &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 &c. 3 Dana 482. 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. 1 464; 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, 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. 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 &c. 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 &c. 3 Barn. & Adol. 189; 23 Eng. Com. Law Rep. 55. When there are two express covenants, for example, one that the lessor has power to

grant, the other that the lessee shall enjoy without interruption from any claiming under the lessor, the generality of the one is not qualified by the other. Norman v. Foster, 1 Mod. 101; Fraser v. Skey, 2 Chitty's Rep. 646; 18 Eng. Com. Law Rep. 441; Bender v. Fromberger, 4 Dall. 436; Duvall v. Craig, 2 Wheat. 58.


But there is a great difference between a case where the covenant for title was express, as it was in several cases above cited, and in Gainsford v. Griffiths, 1 Saund. 59; Hesse v. Stevenson, 3 Bos. & Pul. 565; and Barton v. Fitzgerald, 15 East 530; and the case of a covenant implied in the word demise. That the generality of the covenant in law contained in the word demise, is restrained by an express covenant for quiet enjoyment, was laid down in Nokes's case, as reported by Lord Coke, in 4 Rep. 80b. Expressum facit tacitum cesMerrill &c. v. Frame, 4 Taunt. 329. There is some difference between the report of Nokes's case, in 4 Rep. 80b, and that in Cro. Eliz. 674; but Lord Coke's report is taken to be correct. The rule of Nokes's case, as reported by him, has been constantly acted on. Line v. Stephenson &c. 4 Bingh. N. C. 678; 33 Eng. Com. Law Rep. 492; Morris v. Harris, 9 Gill 27; 2 Caines's Rep. 192; Kent v. Welch, 7 Johns. 260; Vanderkaer v. Vanderkaer, 11 Id. 122. Though under that rule, the word demise does imply a covenant for title, it is only when there is no express covenant inconsistent with such a construction. 5 Bingh. 183; 35 Eng. Com. Law Rep. 77.

6. Of conditions and exceptions; how construed; and the rules for construing covenants generally.

It is sometimes a question whether a particular stipulation is a condition or a covenant. The difference between the two is pointed out in Willson &c. v. Phillips, 2 Bingh. 13; 9 Eng. Com. Law Rep. 296. There the stipulation was considered a covenant rather than a condition.

Where a defendant had agreed to erect certain buildings within the period of 18 months, "the whole of which were to be left to the superintendence of the plaintiff and E. J., the defendant's son," it was held that there was an absolute covenant to do the work within 18 months, and that the succeeding clause was inserted for the benefit of both parties, which they were at liberty to avail themselves of if they should think fit to do so; but that it did not amount to a condition, neither a condition precedent or concurrent. Cannock v. Jones, 3 W. H. & G. 238; 5 Id. 713, 14.

Where in a grant or lease there is an exception, as to the meaning of which there is any reasonable degree of doubt, it has been said the words of the exception are to be considered as the words of the grantor or lessor, and to be construed in favour of the grantee or lessee. 5 Rep. 106. This rule has been recognized and acted on in modern as well as ancient times. Earl of Cardigan v. Armitage, 2 Barn. & Cress. 197 ; 9 Eng. Com. Law Rep. 63; Bullen v. Denning, 5 Barn. & Cress. 842; 11 Eng. Com. Law Rep. 384. It has been laid down, too, to be a rule that a covenant is to be taken most strongly against the party making it, Tindal, C. J., 9 Bing. 24; 23 Eng. Com. Law Rep. 252; and to be also a rule that a covenant, the effect of which is to restrict the covenantor in the use and enjoyment of his freehold, is to be construed strictly against the covenantee. Holroyd, J., in Mayor of Liverpool v. Tomlinson, 7 Dow. & Ry. 556; 16 Eng. Com. Law Rep. 298.

These rules, however, are subordinate to another, that in construing agreements as well as statutes, the court is bound to put on them that meaning which is the plain, clear and obvious result of the language used. Tielens v. Hooper, 5 W. H. & G. 833; Betts v. Turner, 1 Johns. Cas. 69; Moss v. Stipp, 3 Munf. 166.

7. How agreement is to be performed where it is for the sale and conveyance of land.

Upon the principles of the common law any one undertaking to do an act or cause it to be done, is bound to do it, or cause it to be done at his peril, and to find the means of doing it unless it cannot be possibly done without the active concurrence of the party with whom the contract is made. Green, J. in Fairfax v. Lewis, 2 Rand 35. If the agreement cannot be performed according to the words, he shall perform it as near to the intent of the agreement as he can. Leber v. Kauffelt, 5 W. & S. 445. If an actual impossibility were shewn, he might go to a court of equity to restrain proceedings in action on the covenant; he shewing that he had done all in his power to fulfill it. Littledale, J. 7 Adol. & El. 798; 34 Eng. Com. Law Rep. 231.

It is a rule in England that in the conveyance of real property where no special provision is made in the contract, the expense of the conveyance falls upon the purchaser, and in the absence of any stipulation to the contrary it becomes his duty to prepare and tender such conveyance; and the same practice prevails with regard to terms for years and railway

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