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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. 806. 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. 806, 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, 9Gill 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 dces 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 foc. 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.
3 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't v. Miller's er’ors, 6 Munf. 170.
8. Rules as to covenants prescribed by the statute of 8 do 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
covenants," 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 covenantec, 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, bis 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 the grantor had covenanted that he, his heirs and personal representatives, will forever warrant and defend the said property unto the gradtee, his heirs, personal representatives and assigns, against the claims and demands of the grantor, and all persons claiming or to claim by, through or under him.
$ 12. The words " with general warranty,” in the granting part of any deed, shall be deemed to be a covenant by the grantor “that he will rarrant generally the property hereby conveyed.". The words " uith special warranty," in the granting part of any deed, shall be deemed to be a covenant by the grantor
" that he will warrant specially the property hereby conveyed."
$ 13. A cotenant by the grantor in a deed for land, “ that he has the right to convey the said land to the grantee,” shall have the same effect as if the grantor had covenanted that he has good right, full power and absolute authority, to convey the said land, with all the buildings thereon and the privileges and appurtenances thereto belonging, unto the grantee, in the manner in which the same is conveyed or intended so to be by the deed, and according to its true intent.
$ 11. A covenant by any such grantor, " that the grantee shall have quiet possession of the said land,” shall have as much effect as if he covenanted that the grantee, his heirs and assigns, might, at any and all times thereafter, peaceably and quietly enter upon and have, hold and enjoy, the land conveyed by the deed or intended so to be, with all the buildings thereon and the privileges and appurtenances thereto belonging, and receive and take the rents and profits thereof, to and for bis and their use and benefit, without any eviction, interruption, suit, claim or demand whatever. If to such covenant there be added “free from all incumbrances,” these words shall have as much effect as the words "and that freely and absolutely acquitted, exonerated and forever discharged, or otherwise by the said grantor or his heirs saved harmless and indemnified, of, from and against any and every charge and incumbrance whatever."
$ 15. A covenant by any such grantor, " that he will execute such further assurances of the said lands as may be requisite,” shall have the same effect as if he covenanted that he, the grantor, bis heirs or personal representative, will at any time, upon any reasonable request, at the charge of the grantee, his heirs or assigns, do, execute, or cause to be done or executed, all such further acts, deeds and things, for the better, more perfectly and absolutely conveying and assuring the said lands and premises, hereby conveyed or intended so to be, unto the grantee, his heirs and assigns, in manner aforesaid, as by the grantee, his heirs or assigns, his or their counsel in the law, shall be reasonably devised, advised or required.
$ 16. A covenant by any such grantor " that he has done no act to incumber the said lands," shall have the same effect as if he covenanted that he had not done or executed, or knowingly suffered, any act, deed, or thing whereby the lands and premises conveyed, or intended so to be, or any part thereof, are, or will be, charged, affected or incumbered in title, estate, or otherwise. $ 17. In a deed of lease, a covenant by the lessee “ to
the rent,” shall have the effect of a covenant that the rent reserved by the deed shall be paid to the lessor, or those entitled under him, in the manner