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man to a woman for the performance of an agreement" to live together" in a state of fornication, Walker v. Perkins, 1 W. Bl. 517; 3 Burr. 1568; or upon any agreement to pay money in consideration of future unlawful cohabitation; or upon a bond to secure money payable under such agreement, 3 El. & Black. 650; 77 Eng. Com. Law Rep. 650; or to indemnify against a note that is void, Collins v. Blantern, 2 Wils. 349; or upon any contract for a matter or thing prohibited by statute. Bartlett v. Viner, Carth. 252. A court of law will not lend its aid to enforce the performance of a contract between parties which appears upon the face of the record to have been entered into by both the contracting parties for the express purpose of carrying into effect that which is prohibited by the law of the land. This principle was acted on in Paxton v. Popham, 9 East 408, and the Gas light and Coke Co. v. Turner, 5 Bingh. N. C. 688; 35 Eng. Com. Law Rep. 268; in each of which cases the action was on a bond or covenant. " It would, indeed," says Tindal, C. J., “be inconsistent with reason and principle, to hold that by the mere ceremony of putting a seal to an instrument, that is, by the voluntary act of the parties themselves, a contract which was void in itself, on the ground of its being in violation of the law of the land, should be deemed valid, and an action maintainable thereon in a court of justice.” S. C. The authorities clearly shew that a bond or covenant which springs from and is the creature of the illegal agreement, cannot be enforced.
Fisher v. Bridges, 2 El. & Black. 118; 3 Id. 642; 75 Eng. Com. Law Rep. 118; 77 Id. 642; 25 Eng. Law and Eq. 207.
A like doctrine is maintained in the United States. Gray v. Hook, 4 Comstock 457, 459. The charge of Washington, J. in Toler v. Armstrong, 4 Wash. C. C. R. 299, stood the test of examination; his judgment was affirmed by the supreme court of the United States. Armstrong v. Toler, 11 Wheat. 268. The same principle is maintained in the state courts-of Massachusetts in Wheeler v. Russell, 17 Mass. 281; Fuller v. Dame, 18 Pick. 479; and White v. The Franklin Bank, 22 Id. 183; of Pennsylvania in Mitchell v. Smith, 1 Binn. 110; of New York in Neller v. Clark, 20 Wend. 24; 4 Hill 424; and Gray v. Hook.
The principle is applied to contracts made to influence unduly the operations of government. Wood v. McCann, 6 Dana 369; Hatzfield v. Gulden, 7 Watts 152; Cloppenger v. Hepbaugh, 5 W. & S. 315; Fuller v. Dame, 18 Pick. 472; Gray v. Hook, 4 Comstock 456.
“ It is,” says Mr. Justice Grier, "an undoubted principle of the common law, that it will not lend its aid to eniorce a
contract to do an act that is illegal; or which is inconsistent with sound morals or public policy; or which tends to corrupt or contaminate, by improper influences, the integrity of our social or political institutions. Hence all contracts to evade the revenue laws are void. Persons entering into the marriage relation should be free from extraneous or deceptive influences; hence the law avoids all contracts to pay money for procuring a marriage. It is the interest of the state that all places of public trust should be filled by men of capacity and integrity, and that the appointing power should be shielded from influences which may prevent the best selection; hence the law annuls every contract for procuring the appointment or election of any person to an office. The pardoning power, committed to the executive, should be exercised as free from any improper bias or influence as the trial of the convict before the court; consequently, the law will not enforce a contract to pay money for soliciting petitions or using influence to obtain a pardon. Legislators should act from high considerations of public duty. Public policy and sound morality do therefore imperatively require that courts should put the stamp of their disapprobation on every act, and pronounce void every contract the ultimate or probable tendency of which would be to sully the purity or mislead the judgments of those to whom the high trust of legislation is confided.” Marshall v. Baltimore fo Ohio R. R. Co. 16 How. 334.
Generally speaking, no illegality being disclosed by the agreement, the court is unable to pronounce against it as illegal, until the illegality is pleaded and admitted or proved. Jones v. Waite, 9 Clark & Fin. 109; Wood v. McCann, 6 Dana 369. Illegality on the face of the instrument was shewn in Martin fc. V. Amos, 13 Iredell 201, and often appears in actions upon covenants in restraint of trade.
3. Rule as to bond or covenant in restraint of trade.
The authorities in respect to bonds and covenants in restraint of trade were reviewed, and the principle to be extracted from them defined in Hitchcock v. Coker, 6 Adol. & El. 438; 33 Eng. Com. Law Rep. 98; and Mallan 8c. V. May, 11 M. & W. 667. The principle thus established has been since recognized as beyond controversy. Rannie v. Irvine, 7 Man. & Grang. 969; 49 Eng. Com. Law Rep. 969; Pemberton v. Vaughan, 10 Adol. & El. 87; 59 Eng. Com. Law Rep. 87; Hastings fc. v. Whitley, 2 W. H. & G. 611; Elves v. Crofts, 10 Com. Bench (J. Scott) 259; 70 Eng. Com. Law
A contract excluding a party from carrying on any where or at any time a particular trade or business is illegal. Alger F. Thatcher, 19 Pick. 51. But there may be a covenant not to carry on such trade or business within a prescribed distance; the courts sustain as valid, a restriction reasonably limited as to space. Elves v. Crofts, 10 Com. Bench (J. Scott) 259; 10 Eng. Com. Law Rep. 259. The prescribed limits were deemed not unreasonable in Pierce v. Fuller, 8 Mass. 223; Perkins v. Lyman, 9 Id. 522; Stearns v. Barret, 1 Pick. 450; Palmer foc. v. Stebbins, 3 Id. 188; Pierce v. Wooduard, 6 Id. 206; Nobles v. Bates, 8 Cow. 307; Chappel v. Brockway, 21 Wend. 157; Pyke v. Thomas, 4 Bibb 486.
A covenant in restraint of trade, is sometimes divisible, and held reasonable and valid as it regards the exercise of a particular business in a certain section of country, and unreasonable and void for a greater distance. Chesman v. Namby, 2 Str. 739; 2 Ld. Raym. 1456; Mallan foc. v. May, 11 M. & W. 667; Price v. Green, 16 Id. 352; Nicholls v. Stratton, 10 Adol. & El., N. S. 346 ; 59 Eng. Com. Law Rep. 346.
4. Bond or covenant may be good in part, and void for the
That bonds and other deeds may, in many cases, be good in part, and void for the residue, where the residue is founded in illegality, but not malum in se, is a doctrine of the common law, recognized from an early period. Pigot's case, 11 Rep. 27b. Notwithstanding the case of Lee v. Coleshill, Cro. Eliz. 529, the doctrine is still maintained in all cases where the different covenants or conditions are severable, and independent of each other, and do not import malum in se. Nerman v. Newman, 4 M. & S. 66. And though in Norton v. Simmes, Hob. 14, a distinction was taken between a bond void by statute and by common law, the distinction prevails only when the statute has not confined its prohibitions to the illegal conditions, covenants or grants, but has expressly, or by necessary implication, avoided the whole instrument to all intents and purposes. Malaverer v. Redshaw, 1 Mod. 35. It is considered in other cases that there is no distinction between bonds and other deeds containing covenants or grants not malum in se, but illegal at the common law, and those containing conditions, covenants or grants illegal by the express prohibitions of statutes; but that the bonds or other deeds are void as to such conditions, covenants or grants which are illegal, and are good as to all others which are legal and unexceptionable in their purport. This doctrine has been maintained and acted on by the supreme court of the United States. Postmaster General v. Early, 12 Wheat. 136; Smith v. U. S. 5 Peters 293; Brown v. U.S. Id. 373; U. S. v. Bradley, 10 Peters 363; the court regarded it as established by the cases of Mouse v. Leake, 8 T. R. 411; Kerrison v. Cole, 8 East 236; Wigg v. Shuttleworth, 13 Id. 87; How v. Synge, 15 Id. 440; Greenwood v. Bishop of London, 5 Taunt. 727; 1 Marsh. 292; Thompson v. Pilcher, 6 Taunt. 359; 2 Marsh. 61.
OF THE RIGHT OF ACTION ON COVENANTS GENERALLY-EXPRESS
AND IMPLIED; BY WHAT WORDS CREATED; HOW TO BE CONSTRUED AND PERFORMED.
There are two kinds of covenants, viz., a covenant in law and a covenant in deed. 1 Co. Lit. 139b; which last is termed an express covenant. Vaughan's Rep. 118.
1. Of implied covenants.
A covenant in law, properly speaking, is an agreement which the law infers or implies from the use of certain words, having a known legal operation in the creation of an estate ; so that after they have had their primary operation in creating the estate, the law gives them a secondary force, by implying an agreement on the part of the grantor to protect and preserve the estate so by those words already created ; as if a man by deed demise land for years, covenant lies upon the word “demise," which imports or makes a covenant in law for quiet enjoyment; or if he grant land by feoffment, covenant will lie upon the word dedi. Tindal, C. J. in Williams v. Burrell, 1 Man. Gr. & Scott 429; 50 Eng. Com. Law Rep. 429; 7 Gill & J. 315.
The implied covenant created by the word demise in a lease made by tenant for life, will only extend to make him warrant the estate as long as he lived; though there may be an ouster by the remainderman after the death of the tenant for life and before the effluxion of the term, no action will lie against the executors of the lessor on his implied covenant. Dyer 257a; Bendloe 150; Brag: v. Wiseman, 1 Brownl. 22; Hyde v. Canons of Windsor, Cro. Eliz. 553; Shep. Touch. 160 ; Com. Dig. Covenant (C.); Adams v. Gibney, 6 Bingh. 656 ; 19 Eng. Com. Law Rep. 194. It was the lessee's fault to accept a lease without an express covenant for quiet enjoyment.
Such express covenant is material to be inserted where the grant is for life. Kent v. Welch, 7 Johns. 259. If a conveyance be of an estate of freehold there is not implied any covenant for quiet enjoyment by words of lease and demise. Fitz. N. B. 145; Bac. Abr. Covenant C; Pincombe v. Rudge, Yelv. 139, Hob. 4; Black v. Gilmore, 9 Leigh 448; nor any covenant of seisin or estate by the words grant, bargain, sell, alien and confirm, Frost Loc. v. Raymond, 2 Caines's Rep. 188. The dictum to the contrary of Lord Eldon in Browning v. Wright, 2 Bos. & Pul. 21, as to such words when used in a deed in fee, is regarded by Kent, C. J. as opposed to the whole stream of the book authorities. 2 Caines's Rep. 195.
A different rule may however be prescribed by statute. In Pennsylvania by virtue of an act passed in 1715 the words "grant, bargain, and sell," have the force of a general warranty unless restrained by subsequent expressions. Bender 5. Fromberger, 4 Dall. 440. Those words operate also as a covenant against incumbrances done or suffered by the grantor; in other words that the estate was not defeasible, by any act done by him. Funk v. Voneida fc. 11 S. & R. 111. And the effect of such words can only be limited "by express words contained in the deed;" they are not controlled by a special covenant, when such special covenant is not inconsistent with the general covenant. S. C.
In England it has long been established that where in a conveyance express covenants for warranty are introduced, none can be implied from the general words of conveyance. Stannard v. Forbes 8c. 6 Adol. & El. 634; 33 Eng. Com. Law Rep. 155. Such is understood to be the law of Virginia.
2. Of erpress covenants ; by what words created.
When there is an express covenant, containing a lawful stipulation for a particular event, the breach of that stipulation will give a right of action. Craig v. Pride, 2 Spears 121; White's adm'x v. Toncray, 5 Grat. 179; Butler v. O'Neall, Rice 182.
In order to constitute a covenant it is not necessary the word " covenant” should be expressly employed. Stevenson's case, 1 Leon. 324; Holles v. Carr, 2 Mod. 87. Nor indeed are any precise or technical words necessary. Whether there be a covenant or not depends on what appears to be the intention