duty may accrue in future, the covenant is broken whenever the liability to a suit arises.1 § 237. Same subject. It will be sufficient, as we have already seen,2 to prove the breach substantially as laid; but it must also appear that the covenant is substantially broken. If the allegation is of a total loss or destruction, it will be supported by proof of a partial loss; for it is the loss or damage, and not the extent of it, which is the substance of the allegation. So, where the tenant covenanted to keep the trees in an orchard whole and undefaced, reasonable use and wear only excepted, the cutting down of trees past bearing was held to be no breach; for the preservation of the trees for fruit was the substance of the covenant. But where the breach assigned was, that the tenant had not used the farm in a husband-like manner, but, on the contrary, had committed waste, evidence of acts not amounting to waste was held inadmissible; for the waste was the substance of the allegation.5 § 238. Notice of breach. In regard to the averment of proof of notice to the defendant, a distinction is taken between things lying more properly in the knowledge of the plaintiff, and things lying in the knowledge of the defendant, or common to them both. In the former case, the plaintiff must aver and prove notice to the defendant. But where the party bound has the same means of ascertaining the event on which his duty arises, as the party to whom he is bound, neither notice nor request is necessary to be proved. § 239. Where defendant is assignee. Where the defendant is sued as assignee of the original covenantor, and the issue is on the assignment, it will be sufficient for the plaintiff to give evidence of any facts from which the assignment may be inferred; such as possession of the premises leased, or payment of rent to the plaintiff. For it is never necessary either to allege or prove the 13 Com. Dig. 110, Condition, I; Lewis v. Crockett, 3 Bibb, 196. 2 Ante, vol. i. §§ 56-74. 2 Stark. Ev. 248, cites Good v. 5 Harris v. Mantle, 3 T. R. 307. 3 Ante, vol. i. § 61. Hill, 2 Esp. 690. 6 Chitty on Plead. 286; Keys v. Powell, 2 A. K. Marsh. 253; Peck v. McMurtry, Id. 358; Muldrow v. McCleland, 1 Littell, 1. 7 Williams v. Woodward, 2 Wend. 487; Id. 563; Derisley v. Custance, 4 T. R. 75; Platt on Cov. 64; Holford v. Hatch, Doug. 178; Hare v. Cator, Cowp. 766. On the liability of an assignee, see Platt on Cov. 400-465. In the declaration against an assignee, the assignment is alleged as in the following precedent of a declaration by a lessor, against the assignee of his lessee, for non-payment of rent. "In a plea of covenant. For that whereas heretofore, to wit, on the day of title of the adverse party with as much precision as in stating one's own. Yet if the plaintiff does allege the particulars of the defendant's title, he must prove them as laid.1 Under an issue on the assignment, the defendant may show that he holds as an under-tenant, and not as an assignee; 2 or, that he is an assignee, not of all, but only of a part of the premises. He may also show in defence, under a proper plea, that the covenant was broken, not by himself, but by another person, to whom he had previously assigned all his interest in the premises; and in such case it is not necessary for him to prove either the assent of the assignee, or notice to his own lessor of the assignment. It has been held, that where the lessee of a term of years assigns his interest by way of mortgage, the mortgagee is not liable to the landlord, as assignee, until he has entered upon the demised premises; but this doctrine has since been overruled, and the mortgagee held liable as assignee, before entry. But an executor is not liable as assignee, without proof of an actual entry.7 by a certain indenture then made between the plaintiff of the one part and one C. D. of the other part, one part whereof, sealed with the seal of the said C. D., the plaintiff now brings here into court, the plaintiff demised and leased to the said C. D. a certain messuage, lands, and premises situated in- to have and to hold the same to the said C. D. and his assigns from the day of for the full term of years then next ensuing; yielding and paying therefor to the plaintiff the clear yearly rent of -, payable [here describe the mode and times of payment], which rent the said C. D. did thereby for himself and his assigns covenant to pay to the plaintiff accordingly. By virtue of which demise, the said C. D. on the day of entered into the same premises, and was possessed thereof for the term aforesaid. And after the making of said indenture, and during the term aforesaid, to wit, on the day of [naming any day before the breach], all the estate and interest of the said C. Ď. in said term, then unexpired, by an assignment thereof then made, came to and was vested in the defendant, who thereupon entered into the said demised premises and became possessed thereof, and continued so possessed from thence hitherto [or until the -day of. Now, the plaintiff in fact says, that after the making of said assignment, and during the said term, and before the commencement of this suit, to wit, on theday of the sum of of the rent aforesaid became due and was owing to the plaintiff from the said defendant, and still is in arrear and unpaid, contrary to the covenant aforesaid." 1 Stephen on Pleading, pp. 337, 338; Turner v. Eyles, 3 B. & P. 456, 461; 2 Phil. Ev. 151 (7th ed.); ante, vol. i. § 60. 2 Holford v. Hatch, 1 Doug. 182; Earl of Derby v. Taylor, 1 East, 502. Hare v. Cator, Cowp. 766. Pitcher v. Tovey, 1 Salk. 81; Taylor v. Shum, 1 B. & P. 21. Eaton v. Jaques, 2 Doug. 455. It is still held, that the mortgagee of a ship is not liable as owner, until he takes possession. Brooks v. Bondsey, 17 Pick. 441; Colson v. Bonzey, 6 Greenl. 474; Abbott on Shipping, p. 19; Briggs v. Wilkinson, 7 B. & C. 30. Williams v. Bosanquet, 1 B. & Bing. 238; 4 Kent, Comm. 145; Woodfall's Law of Landl. & Ten. p. 183 (5th ed. by Wollaston). Sed quære; and see Astor v. Hoyt, 5 Wend. 603; Astor v. Miller, 2 Paige, 68; Bourdillon v. Dalton, 1 Esp. 234; Cook v. Harris, 1 Ld. Raym. 367; Co. Lit. 46 b; Rex v. St. Michaels, 2 Doug. 630, 632; Blaney v. Bearce, 2 Greenl. 132; McIver v. Humble, 16 East, 199. 7 Buckley v. Pirk, 1 Salk. 316; Jevans v. Harridge, 1 Saund. 1 n. (1), by Williams. § 240. Where plaintiff is assignee. But where the plaintiff claims as assignee, he must precisely allege and prove the conveyances, or other mediums of title, by which he is authorized to sue.1 If he claims as assignee of a covenant real, he must show himself grantee of the land, by a regular legal conveyance, from a person having capacity to convey.2 And in regard to covenants real, on which any grantee of the land may sue the grantor in his own name, or may be sued, it may not be improper here to observe, (1) that they are always such as have real estate for their subject-matter; and (2) that they run with the land, that is, that they accompany the lawful seisin, and are prospective in their operation. If there is no seisin, the covenant remains merely personal.3 The object of these covenants is threefold: (1.) To preserve the inheritance; such as covenants to keep in repair; and covenants to keep the buildings insured against fire, and, if they are burned, to reinstate them with the insurance 1 Steph. on Plead. p. 338. In an action by an assignee, his title is set forth as in the following precedent of a declaration by a grantee of the reversion, against the lessee of his grantor, for non-payment of rent: "In a plea of covenant. For that whereas heretofore, to wit, on the day of one J. S. was seised in his demesne as of fee of and in the following described messuage, land, and tenements, situated in -[here describe the premises]. And being so seised, on the same day, by a certain indenture made between him of the one part and the defendant of the other part, one part whereof, sealed with the seal of the said defendant, the plaintiff now here brings into court [or, which indenture, being in neither part in the possession, custody, or control of the plaintiff, he cannot produce in court], the said J. S. demised the same premises to the defendant [here proceed, mutatis mutan dis, as far as this mark (*) in the preceding form]. And after the making of said indenture, to wit, on the day of, the said J. S., being seised of the reversion of said estate, by his deed of bargain and sale [or, if in any other form of conveyance, state it], duly executed, acknowledged, and recorded, and now here by the plaintiff produced in court, for a valuable consideration therein mentioned [bargained, sold], and conveyed the said reversion of and in the said premises to the plaintiff, to have and to hold the same with the appurtenances to the plaintiff and his heirs and assigns for ever; by virtue of which deed the plaintiff thereupon became seised of the said reversion according to the tenor of the same, and has ever since continued to be so seised thereof. Now the plaintiff in fact says that after the making of said deed [of bargain and sale] and during the said term [conclude as in the preceding form]." 2 Milnes v. Branch, 5 M. & S. 411; Roach v. Wadham, 6 East, 289; 2 Sugd. Vend. 479, 489-491; Randolph v. Kinney, 3 Rand. 394; Beardsley v. Knight, 4 Vt. 471. The action for breach of a covenant real lies only for him who held the land at the time of the breach. A mesne covenantee or owner has no right of action for damages, until he has paid them to those who have come in under himself. Chase v. Weston, 12 N. H. 413. 8 Platt on Covenants, p. 63; Shep. Touchst. 171; Spencer's Case, 5 Co. 16; Norman v. Wells, 17 Wend. 136; Nesbit v. Nesbit, Cam. & Nor. 324; Slater v. Rawson, 1 Met. 450. The nature of covenants real is discussed in 4 Cruise's Dig. tit. 32, c. 26, § 23, n. (Greenleaf's ed.). 4 Platt on Cov. 65, 267; Lougher v. Williams, 3 Lev. 92; Demarest v. Willard, 8 Cow. 206; Norman v. Wells, 17 Wend. 148; Pollard v. Shaaffer, 1 Dall. 210; Shelby v. Hearne, 6 Yerg. 512; Kellogg v. Robinson, 6 Vt. 276; Sampson v. Easterby, 9 B. & C. 505. 9 money.1 (2.) To continue the relation of landlord and tenant, &c.; such as to pay rent; 2 to do suit to the lessor's mill, or to grind the tenant's corn; and for renewal of leases.5 (3.) To protect the tenant in the enjoyment of the land. Of this class are, the covenant to warrant and defend the premises, to him and his heirs and assigns, against all lawful claims and demands; to make further assurance; to remove incumbrances; 8 (a) to release suit and service; to produce title-deeds in any action, in support or defence of the grantee; 10 for quiet enjoyment; 11 never to claim or assert title to the premises; 12 to supply the premises with water; 13 to open a street on which the land granted is bounded; 14 not to establish or permit another mill on the same stream which propels the mill granted; 15 not to erect a building on grounds dedicated by the covenantor to the public, in front of lands conveyed by the covenantor to the assignor of the plaintiff; 16 (b) or to use the land in a particular manner, for the advantage of 1 Vernon v. Smith, 5 B. & Ad. 1, per Best, J.; Platt on Cov. 185; Thomas v. Von Kapff, 6 G. & J. 372. Stevenson v. Lambard, 5 East, 575; Holford v. Hatch, 1 Doug. 183; Hurst v. Rodney, 1 Wash. C. C. 375. 8 This is a real covenant as long as the lessor owns both the mill and the reversion. Vivyan v. Arthur, 1 B. & C. 410; 42 E. III. 3; 5 Co. 18. Dunbar v. Jumper, 2 Yeates, 74; Kimpton v. Walker, 9 Vt. 191. Spencer's Case, Moore, 159; Platt on Cov. 470; 12 East, 469, per Ld. Ellen borough; Isteed v. Stonely, 1 And. 82. 6 Shep. Touchst. 161; Marston v. Hobbs, 2 Mass. 433; Withy v. Mumford, 5 Cow. 137; Van Horn v. Crain, 1 Paige, 455. 7 Middlemore v. Goodale, Cro. Car. 503. 8 Sprague v. Baker, 17 Mass. 586. But a covenant that the land is not incumbered, is personal only. Clark v. Swift, 3 Met. 390. 9 Co. Lit. 384 b. 10 4 Cruise, Dig. 393, tit. 32, c. 25, § 99 (Greenleaf's ed.); Barclay v. Raine, 1 Sim. & Stu. 449; Platt on Cov. 227; 10 Law Mag. 353-357. 11 Noke v. Awder, Cro. El. 373, 436; Campbell v. Lewis, 3 B. & Ald. 392; Platt on Cov. 470; Markland v. Crump, 1 Dev. & Bat. 94; Heath v. Whidden, 11 Shepl. 383; Williams v. Burrell, 1 M. G. & S. 402. 12 Fairbanks v. Williamson, 7 Greenl. 97. And if the subject of the conveyance be an estate in expectancy, by an heir or devisee, and the conveyance is lawful, it attaches to the estate when it comes to the grantor, in whose hands it instantly enures to the benefit of the grantee, and thereupon the covenant becomes a covenant real. Trull v. Eastman, 3 Met. 121; Somes v. Skinner, 3 Pick. 52. 13 Jordain v. Wilson, 4 B. & Ald. 266. So a covenant by the grantor of a mill-pond and land, to draw off the water six days in a year, upon request, is a covenant real. Morse . Aldrich, 19 Pick. 449. 14 Dailey v. Beck, 6 Penn. Law Jour. 383. 15 Norman v. Wells, 17 Wend. 136. 16 Watertown v. Cowen, 4 Paige, 510. 650. (a) Or a covenant against incumbrances. Cole v. Kimball, 52 Vt. 639. (b) or to erect a building on certain And see s. P. Mann v. Stephens, 10 Jur. lands. Georgia Southern Ry. Co. v. Reeves, 64 Ga. 492. Cf. Gawtry v. Leland, 31 N. J. Eq. 385. the grantor; and the like. (a) When any of these covenants are broken, after the land has been conveyed to the assignee, the general rule is, that he alone has the right to sue for the damages; but if, by the nature and terms of the assignment, the assignor is bound to indemnify the assignee against the breach of such covenants, it seems that the assignor may sue in his own name.2 § 241. Covenant of seisin. To prove a breach of the covenant of seisin, it is necessary to show, that the covenantor was not seised in fact; for this covenant is satisfied by any seisin in fact, though it were by wrong, and defeasible. But though the covenantor was in possession of the land at the time of the conveyance, yet if he did not exclusively claim it as his own, the covenant is broken. (b) So, if there was a concurrent seisin by another, as tenant in common;5 or, if there was an adverse seisin of a part of the land, within the boundaries described in the deed. But if the possession by a stranger was not adverse, it is no breach. (c) § 242. Freedom from incumbrances. The covenant of freedom from incumbrances is proved to have been broken, by any evidence, showing that a third person has a right to, or an interest in, the land granted, to the diminution of the value of the land, 1 Hemminway v. Fernandez, 13 Sim. 228. 2 Griffin v. Fairbrother, 1 Fairf. 81; Bickford v. Paige, 2 Mass. 460; Kane v. Sanger, 14 Johns. 89; Niles v. Sawtel, 7 Mass. 444. 3 Marston v. Hobbs, 2 Mass. 433; Bearce v. Jackson, 4 Mass. 408; Twombly v. Henley, Id. 441; Prescott v. Trueman, Id. 627; Chapel v. Bull, 17 Mass. 213; Wait v. Maxwell, 5 Pick. 217; Wheaton v. East, 5 Yerg. 41; Willard v. Twitchell, 1 N. H. 177; Backus v. McCoy, 3 Ohio, 220. But see Richardson v. Dorr, Vt. 21; Lackwood v. Sturdevant, 6 Conn. 385. And see, as to this covenant, 4 Cruise's Dig. tit. 32, c. 26, § 48, n. (Greenleaf's ed.). If the grantor's seisin is alleged to have been defeated by an official sale for the non-payment of taxes, the plaintiff must prove the validity of the assessment and sale, with the same strictness as if he were the purchaser under the sale, enforcing his title in an ejectment. Kennedy v. Newman, 1 Sandf. 187. 4 Wheeler v. Hatch, 3 Fairf. 389. 5 Sedgwick v. Hollenback, 7 Johns. 376. 6 Wilson v. Forbes, 2 Dev. 30. But it is not necessary to prove an eviction. Bird v. Smith, 3 Eng. 368. 7 Commonwealth v. Dudley, 10 Mass. 403. (a) In National Union Bank v. Segur, 39 N. J. L. 173, it is said that a covenant which confers an immediate, permanent, and beneficial effect on the uses to which real estate is put will run with the land. (b) Where a grantor covenants against incumbrances for his heirs, but not for himself, as the covenant is broken as soon as made, he must be taken to have covenanted for himself. Otherwise, perhaps, as to warranty. Smith v. Lloyd, 29 Mich. 382. (c) A deed of land reciting a pecuniary consideration, and to take effect after the death of the grantor, upon condition of certain services to be rendered him, amounts to a covenant to stand seised to the grantor's use, though there is no relationship of blood or marriage between the parties. Trafton v. Hawes, 102 Mass. 530. |