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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 cessare. Merrill &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
shares, notwithstanding that in respect to such shares the form of conveyance is simple and prescribed in terms by the act of parliament. In every case of the kind the vendee must tender the instrument to the vendor for execution before he can maintain any action for its non-execution. Stephens v. De Medina, 4 Adol. & El. N. S. 422; 45 Eng. Com. Law Rep. 422.
This is regarded in the United States as an exception to the general rule of law, and founded upon the practice of the profession in England as to conveyancing. No such practice prevails in Virginia or Massachusetts. Here if a man covenants
to execute, or to cause a third person to execute, a conveyance, it is no answer to an action for his breach of this covenant, that the vendee has not prepared or demanded such conveyance. Fairfax v. Lewis, 2 Rand. 35; Finney v. Ashley, 15 Pick. 552.
When a deed is to be delivered or tendered before there is a right to demand payment of purchase money, the description in the deed must be sufficient to embrace all the land agreed to be conveyed; and the deed must be in other respects sufficient to convey the title stipulated to be conveyed. Jones v. Gardner, 10 Johns. 276.
When a vendor acting in his own right and not as trustee contracts to give a sufficient deed to vest in the vendee "the title of the said farm," it is a valid objection to the deed that the wife of the vendor has not executed it with the solemnities required by law to bar her dower; in such case the title is considered to mean the legal estate in fee, free and clear of all valid claims, liens and incumbrances whatsoever. S. C.
But when the vendor goes no farther than to bind himself to give a good and sufficient deed for the premises, it has been considered in New York that this relates merely to the validity and sufficiency of the conveyance in point of law, to pass whatever right the vendor had in the lands to the vendee; and that the conveyance being without warranty or personal covenants, is no valid objection to it. Van Eps v. Corporation of Schenectady, 12 Johns. 442; Gazley v. Price, 16 Id. 269; Parker v. Parmelee, 20 Johns. 132; the court distinguishing this last case, which was an action at law for breach of covenant, from the bill in equity, in Clute v. Robinson, 2 Johns. 595, for specific execution, and from the action of assumpsit in Judson v. Wass, 11 Johns. 525, where failure of consideration could be set up as a defence. The covenant in
Parker v. Parmelee, was to execute a good warrantee deed of conveyance of the lot. The court did not consider this expression to mean that he will give a good title; "it is," said
Spencer, C. J. "to be a good warrantee deed of conveyance; the word good refers only to the instrument of conveyance; it does not mean that he will give a good warranted title." 20 Johns. 134.
So also in Pennsylvania a covenant to grant, convey and assign in fee simple is satisfied by a deed in fee simple with special warranty or without general warranty. Espy v. Anderson, 2 Harris 312.
On the other hand, in Virginia a contract for a conveyance from a vendor, acting in his own right and not as trustee, is generally regarded as a contract for a conveyance with general warranty. Here, it has been thought there may be good reasons why a vendee in contracting for the purchase of land should insist on having a conveyance from the vendor himself to the exclusion of one from his heirs; and when it appeared by the agreement that the vendor bound himself to execute a conveyance, and the vendee bound himself and his heirs to pay the purchase money on the day of the execution of the conveyance, it was considered necessary in an action against the vendee for the purchase money, to aver that such conveyance was made or tendered by the vendor; the executors of the vendor were unable to recover on the ground that a conveyance was made and tendered by the vendor's widow and heirs, which the vendee refused to accept; the court thought that he had a right, after the vendor's death to refuse such conveyance and waive the contract altogether. Spindle's adm'x v. Miller's ex'ors, 6 Munf. 170.
8. Rules as to covenants prescribed by the statute of 8 & 9 Vict.; and the Code of Virginia.
The Code of Virginia, p. 505, 6, 7, ch. 117, has the following provisions, taken chiefly from the statute of 8 & 9 Vict. p. 1242, ch. 119, p. 1262, ch. 124:
§ 9. When a deed uses the words "the said such covenant shall have the same effect as if it was expressed to be by the covenantor, for himself, his heirs, personal representatives and assigns, and shall be deemed to be with the covenantee, his heirs, personal representatives and assigns.
§ 10. A covenant by the grantor in a deed, "that he will warrant generally the property hereby conveyed," shall have the same effect as if the grantor had covenanted that he, his heirs and personal representatives, will forever warrant and defend the said property unto the grantee, his heirs, personal representatives and assigns, against the claims and demands of all persons whomsoever.
§ 11. A covenant by any such grantor, "that he will warrant specially the property hereby conveyed," shall have the same effect as if