thing he doth grant or the like. But if the matter required to be, or not to be done by the covenant, be for the substance thereof unlawful, then is the covenant void, and doth not bind; as if one covenant to kill or rob a man, not to appear on inquests, or that he will forestal corn, or the like, these covenants are void. So if the thing to be done by a covenant, be in the nature of it impossible, as to go to Rome in three days, or to make a feoffment to his wife,* this is void. Touch. 164.

A covenant in particular, (being one part of a deed,) is subject to the general rules of exposition of all parts of deeds in general, as, 1st, to be always taken most strongly against the covenantor, and most in advantage of the covenantee, Plowd. 267; 2dly, to be taken according to the intendment of the parties; 3dly, ut res magis valeat, &c.; 4thly, when no time is limited for the doing the thing, it shall be done in reasonable time, and the like. Touch. 166.

In cases where the covenantees have, or are to have, several and separate estates or interests, in the premises; there, when the covenant is made to and with the covenantees, and each and every of them, in this case these words make the covenant several; as if the indenture demise black acre to A, white acre to B, and white acre to C, and the covenant runs in such words: in this case the covenant is several, and each may have action thereon separately. But if he demise to them jointly, the entirety of the three acres, and covenant in this manner; the covenant is joint, and not several; and the one may not bring an action of covenant, or plead alone, but both must join. Touch. 166. 1 Nels. 558.

If A and B do covenant for themselves jointly, without more words, the covenant is joint, and one of them, while

* But if a man covenant with a trustee to make a good estate of land to her in fee simple or otherwise, (as this may be done by a conveyance to trustees,) or to find her maintenance, or to give her so much by the year; these are good covenants. Touch. 164.

both are alive, cannot be charged without the other; and if one of them die, the survivor or his heirs are solely chargeable at law: but if they covenant for themselves severally, the covenant is several, and they must be sued apart: and if they covenant jointly and severally, then the covenant is joint and several, and they may be sued either way, at the election of the covenantee. Shep. Touch. Pres. ed. 180.

The common use of covenants, is for assuring of land; quiet enjoyment, free from incumbrances; for payment of rent, or concerning repairs and the like. And in deeds of covenant, sometimes a clause for performance with a penalty is inserted in the body of the deed; other times and more frequently, bonds for performance, with a sufficient penalty, are given separate, which last being sued, the jury must find the penalty; but on covenant, only the damages. Wood's Inst. 250.

Any one that is party to the deed, to whom the covenant is made, may take advantage of the covenant, but not a stranger; for if A covenant with B to do an act to C, who is no party to the deed, and A doth it not, B and not C must sue him upon the breach. Touch. 175.

If a feoffment be made in fee, and the feoffor doth covenant to warrant the land, or otherwise, to the feoffee and his heirs in this case the heir of the feoffee shall take advantage of this covenant: and so if in a lease of the inheritance the covenants from the lessee run to the lessor, his executors and administrators, without naming the heir; yet the heir shall have an action of covenant for breach, for the covenant runs with the inheritance. Touch. 175. 2 Lev. 92.

Executors and administrators shall take advantage of inherent covenants, that is to say, covenants concerning personalty carved out of the inheritance, although they be not named in the lease ;* and so it is if A covenant to do a

An executor, although he is not named, shall have an action of covenant in all cases by the common law, because he is privy; and quodam

thing that is lawful to B and it be not done, the executors and administrators of B may have an action of covenant for the not doing of it, though not expressly named in the instrument. Touch. 175.

Grantees of reversions shall have the like advantage against termors, (by action only,) for any covenant or agreement contained in their lease, as the lessors, their heirs or successors might. And so also lessees against grantees of reversions. Touch. 176.

Regularly all those that do seal and deliver the deed, and are named as parties thereto, and bound by the express words of the covenant, whether the covenant be collateral or inherent, are bound by the covenant contained in the deed; and if heirs, executors, administrators, or assigns, be named in the covenant, for the most part they are bound by the covenant. Touch. 177.

And in all cases of inherent covenants, that is to say, covenants concerning the personalty carved out of the inheritance, where a man doth covenant for himself only, and doth not name his executors and administrators, or either of them, they are bound, and may be charged by the covenant notwithstanding. Ibid.

*

If a feoffment or lease be made to two, and there are divers covenants in the deed to be performed on the part of the feoffees or lessees, and one of them doth not seal; and he that doth not seal, doth notwithstanding accept of the estate, and occupy the lands conveyed or demised; in these cases, as touching all inherent covenants, as for payment of

modo, partly because he represents the person of the testator, more than the heir. Co. Lit. 208, 209. (a)

* Executors being bound in all cases, unless the act to be done by the covenantor, is merely personal; and even in such a case, they will be answerable, if the breach of covenant personally to be executed, happened in the life-time of their testator, and an action will lie against the executors, to recover a compensation in damages, for any such breach of covenant in the life-time of the party.

rent, and the accessaries thereof, as clauses of distress, of re-entry, of Nomine Pena, reparations, and the like, they are bound by these covenants, as much as if they did seal the deed. Touch. 177.

If a man covenant for himself and his heirs to do any thing whatsoever, thereby his heirs are bound. Ibid.

But the heir is only chargeable as heir, so far as he has, assets by descent from his ancestor sufficient to answer the charge. Pere. Wms. 177. Finch. Rep. 86.

If a man do covenant for himself only, to pay money, build a house, for quiet enjoying, or the like, and he doth not say in the covenant, his executors and administrators, yet hereby his executors and administrators are bound, and shall be charged. Touch. 178.

But upon a covenant implied for the doing of a personal act, an action of covenant will not lie against an executor, the party against whom such implied covenant is raised being bound only during his life. Moor. 74.

Where a covenant is broken, an action of covenant may be brought, but no cause of action arises until it is actually broken. Touch. 180. 5 Rep. 21.

But if the covenant is to convey or make an estate in land, a bill in equity is most proper, because a court in equity can by its decree give the thing itself, which is a higher and more adequate remedy than damages only, which is all the law gives. 3 Atk. 87.

And herein it is proper to observe, that although assignees may be chargeable, by the terms of the covenant, yet the lessee himself by assignment to them is in no wise discharged from his covenant; nor are his heirs, executors, or administrators, where there is an express covenant against them; but the lessor or grantor of the reversion hath election to charge which of them he will. Touch. 180.

* But if the breach happened during his life, it is otherwise, and the executor may be charged.

E

And although he may have accepted of rent from the assignee, he may bring his action of covenant against the lessee, his heirs, executors, or administrators, according to the terms of the covenant: but he cannot demand the rent of the lessee, after such acceptance, by reason of tenure; or bring any action of debt or assumpsit for the same, in respect of the tenure: his only remedy in this last case being by an action of covenant according to the express terms of the covenant. Sty. 300. Sty. 300. 1 Sider. 402.

But upon a covenant implied by law, after assignment of the term and acceptance of rent from the assignee, covenant does not lie against the assignor. Jones 223. 1 Sider. 447.

An assignee under an express covenant is bound from the date of the assignment, whether he enter or not; but he only continues so bound while he remains assignee, for he may at any time discharge himself from his obligation to the lessor or reversioner by an assignment, even to a beggar. Bing. & Brod. 238. Bull, N. P. 159.

And by stat. 49 Geo. 3, c. 121, s. 19, the assignees of a bankrupt's estate are never bound to pay rent, or perform covenants, until they elect to take the estate.

Where the deed itself, wherein the covenants are contained, or the estate on which the covenants, as accessary to the principal, do depend, is gone and determined, there regularly the covenants are gone also. Shep. Touch. 180.

And therefore, if a lease for life or years be surrendered, whereby the estate is gone; or a deed become void by razure, cancelment, or the like, and there be covenants contained in the deed; by these means the covenants are gone also. But this surrender doth not discharge the breach of covenant which was before the surrender. Ibid.

Where a covenant is become impossible to be done by the act of God, as when one doth covenant to serve another for a specific term of years, and he dies before the expiration of the term; by this the covenant, which is a mere personal covenant, is discharged. Ibid.