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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
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 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 warrant generally the property hereby conveyed." The words "with 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 covenant 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.
§ 14. 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 his 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, his 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 pay 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
therein mentioned; and a covenant by him "to pay the taxes," shall have the effect of a covenant that all taxes, levies, and assessments upon the demised premises, or upon the lessor on account thereof, shall be paid by the lessee or those claiming under him.
§18. In a deed of lease, a covenant by the lessee that "he will not assign without leave," shall have the same effect as a covenant that the lessee will not, during the term, assign, transfer, or set over the premises, or any part thereof, to any person, without the consent, in writing, of the lessor, his representative or assigns. And a covenant by him that "he will leave the premises in good repair," shall have the same effect as a covenant that the demised premises will, at the expiration or other sooner determination of the term, be peaceably surrendered and yielded up unto the lessor, his representatives or assigns, in good and substantial repair and condition, reasonable wear and tear excepted.
§ 19. No covenant or promise by a lessee, that he will leave the premises in good repair, shall have the effect, if the buildings are destroyed by fire, or otherwise, without fault or negligence on his part, of binding him to erect such buildings again, unless there be other words shewing it to be the intent of the parties that he should be so bound.
§ 20. A covenant by a lessor "for the lessee's quiet enjoyment of his term," shall have the same effect as a covenant that the lessee, his personal representative and lawful assigns, paying the rent reserved, and performing his or their covenants, shall peaceably possess and enjoy the demised premises, for the term granted, without any interruption or disturbance from any person whatever.
§ 21. And if in a deed of lease it be provided that "the lessor may re-enter for default of days in the payment of rent, or for the breach of covenants," it shall have the effect of an agreement that if the rent reserved, or any part thereof, be unpaid for such number of days after the day on which it ought to have been paid, or if any of the other covenants on the part of the lessee, his personal representative or assigns, be broken, then, in either of such cases, the lessor, or those entitled in his place at any time afterwards, into and upon the demised premises, or any part thereof, in the name of the whole, may re-enter, and the same again have, re-possess, and enjoy, as of his or their former estate.
9. What is included in a covenant extending to the property conveyed; whether there is a warranty of the quantity of land.
The Code of Virginia, (ch. 117, § 7, p. 504,) like the statute of 8 and 9 Vict. p. 1942, ch. 119, and p. 1962, ch. 124, provides that every deed conveying land shall, unless an exception be made therein, be construed to include all buildings, privileges and appurtenances of every kind belonging to the lands therein embraced. A covenant extending to the property conveyed will, in Virginia, no less than in New York, include the fences as well as the trees, buildings, mines, quarries and other things granted. Mott v. Palmer, 1 Comstock 573.
Where there is no special warranty of quantity, and the quantity proves short of that mentioned in the deed, it has been attempted to sustain an action of covenant on the general warranty of the premises. Such an attempt has failed in South Carolina. Bauskett v. Jones, 2 Spears 68.
10. Of covenants in a lease; how far lessee is liable under a covenant to pay taxes &c.; effect of disturbing his quiet enjoyment; when rent is apportionable.
There is sometimes a difficulty in construing a covenant to pay taxes when it makes a distinction between "fresh taxes" and other taxes. Watson v. Atkins, 3 Barn. & Ald. 647; 5 Eng. Com. Law Rep. 411. The case is generally more clear when broad and general terms are used. Payne v. Barridge, 12 M. & W. 728.
A covenant by a lessee to discharge all rates, taxes and assessments which the premises shall be liable for or which shall be raised, levied or assessed on the same during the continuance of the lease, is not restricted to assessments authorized by the law existing at the execution of the lease; but binds the lessee or assignee to provide for all assessments, whether imposed according to laws then existing or those subsequently enacted. Post v. Kearney, 2 Comstock 396.
When there is a covenant for quiet enjoyment against any let, suit, disturbance or interruption by the defendant or others claiming, by, from or under him, these words imply a claim by title from the lessor. If therefore there be claim against him for rent due from him before the demise, a distress for such rent is not a proceeding within the terms of the covenant. Stanley v. Hayes, 3 Adol. & El. N. S. 106; 43 Eng. Com. Law Rep. 652.
On a covenant that the lessee shall during the term quietly enjoy the premises, the plaintiff should not commence his action until the arrival of the time prescribed for the term to begin. Ireland v. Bircham, 2 Bingh. N. C. 90; 29 Eng. Com. Law Rep. 266.
An eviction by a landlord of his tenant from part of the premises does not put an end to the tenancy or discharge the tenant from the performance of his covenant other than the covenant for the payment of rent. Newton v. Allen, 1 Adol.
& El. N. S. 518; 41 Eng. Com. Law Rep. 518; Morrison v. Chadwick, 7 Man. Grang. & Scott 283; 62 Eng. Com. Law Rep. 283. It does however create a suspension of rent. S. C.; 1 Wms. Saund. 204, note (2.)