Page images
PDF
EPUB

wherever there is an agreement under hand and seal, covenant lies.

Williamson v. 7. Where a person obliged himself to warrant Codrington, 1 Vel. Ř.50. and for ever defend the lands conveyed: It was held

by Lord Hardwicke not to be a warranty, but a covenant.

le

V

Implied S 8. There are some words, which, when used in Covenants.

particular contracts, will create a covenant. Thus, if 4 Rep. 80 b. a person makes a lease for years by the words conces 5 Rep. 17 a.

or demisi, grant or demise, they will create a covenant for quiet enjoyment of the lands demised : and, if the lessee be evicted by the leffor, or by any person claim. ing a lawful title to the land, he may bring an action thereupon.

Giles v.
Hooper,
Carch. 135.

S 9. So, if a lease for years be made, reserving or yielding and paying a certain rent; these words will create a covenant for payment of the rent.

3 Burr. R. ' $10. Lord Mansfield has said, that the distinction 1639. AD: R.250. between implied covenants by operation of law, and

express covenants, is, that express covenants are taken more stri&ly: for a man may, without consideration, enter into an express covenant, under hand and seal.

Noke's Cafe, $11. An express covenant will qualify the gene4 Rep: 80 6. rality of an implied covenant, and restrain it; so that i Mod. 113. i Vesey 101. it shall not extend farther than the express covenant.

Joint and several Covenants.

: S 12. Where several persons enter into a covenant, they may either bind themselves altogether, or else

they

they may bind each of themselves severally : from whence arises a distinction between joint and several covenants. A covenant of this kind may also be both joint and several.

Cove

S 13. If two lefsees covenant jointly and severally at the beginning of a lease, these words extend to all their subsequent covenants, notwithstanding the intervention of covenants on the part of the lessor.

S 14. In a lease of coal-mines made by the Duke Duke of N.

v. Errington, of Northumberland to G. Errington and John Ward, Term R. there was a string of covenants introduced by these 5221 words, “ And the said G. Errington and . Ward “ for themselves jointly and severally, and for their “ several and respective heirs, &c.Then came a proviso in these words, “ And it was thereby declared 6 by and between the said parties, and the said Duke . " did thereby covenant that it should be lawful for “ the lefsees to sell a certain quantity of a particular “ sort of coals, they the said G. Errington and J. Ward paying and accounting to the Duke for the fame.An action was brought by the Duke against the executors of G. Errington, upon these words : and the question was, whether they amounted to a several covenant.

It was determined, that the general words at the beginning of the covenants by the lessees—“ jointly “ and severally in manner following,”-extended to all their subsequent covenants ; which were, therefore, all joint and several.

F 2

§ 15. Where

Slingsby's S 15. Where a person covenants with two or more Care, 5 Rep. 18.

persons, and with each of them, if each of the coveTenk, 262. nantees takes a several interest or estate, the covenant

is several. But, if the covenantees take a joint interest in the subject matter of the covenant, it is a joint covenant: as, if a man by indenture demises, to A. Black-acre, to B. White-acre, to C. Green-acre, and tovenants with them and every of them, that he is lawful owner of all the said acres; in that case, as the interests are several and distinct, the words “ every of " them,” will make the covenant several. But, if the three acres had been demised to them jointly, then the words“ every of themwould have have been void : for a man, by his covenant (unless in respect of several interests) cannot make it first joint and then several, by means of the words “ every of them.For, although several perfons may bind themselves and every of them, and fo the obligation shall be joint or several at the election of the obligee; yet a man cannot bind himself to three and to each of them, to make it joint or several, at the election of several persons, for one and the same cause: for the court would be in doubt, for which of them to give judgement; also, the covenantor would be several times

charged with one and the fame thing : and therefore Johnson v. the words, " and every of them," are in such case of Wilson, Willesk. 248. no effect, and do not sever the joint cause of action.

Covenants S 16. Covenants are divided into real and personal. real.

lift 284.6. Covenants real are those which have for their object Law of Cov. fomething annexed to, or inherent in, or connected c u. Shep. T.161. with, land, or other real property; and, as such covenants descend to the heir, and are transferred to the Congham v. purchaser of the land by the conveyance, they are faid Cro. Car. 221. to run with the land.

nants

King,

claiming

$ 17. In consequence of this doctrine, where a Bind all covenant is entered into by the grantee or leffee, which under the relates to the land, it will bind not only such grantee Grantee. or lessee, but also the assignee of such grantee or lessee; and the grantor or leffor, or their heirs, may at any time bring an action on such covenant.

S 18. It was resolved in 25 Eliz. that, where a Spencer's

Case, covenant extends to a thing in effe, parcel of the 5 Rep. 16.4. demise, the thing to be done by force of the covenant is quodammodo annexed and appurtenant to the thing demised, and shall go with the land and bind the assignee; though he be not bound by express words. But, when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to a thing which does not exist.

Williams,

S 19. Where, in a lease for years, the leffee cove. Lougher *. nanted with the leffor, his executors and administrators, Lev. oz. to repair ; and the leffor died : It was held that his heir might bring an action on the covenant; for it was annexed to the land, and went to the heir, though he was not named. And it appeared that it was intended to continue after the death of the lessor, his executor being named.

xecuto

Roberts,

$ 20. But, where the lessor was only tenant for life, Bradnell v. it was held, that his heir was not entitled to the 2 Willi'k.

benefit 143.

F 3

benefit of covenants made with him ; because the lease determined by his death.

$ 21. Although the assignee be liable to the covenants which run with the land, yet that circumstance will not discharge the assignor, who will still continue liable to them.

Barnard v. S 22. An action of covenant was brought by the
Godscall,
Cro. Jac. 309. lessor of a house against the lessee, for not repairing it

after warning given. The defendant pleaded that,
long before that warning, he had assigned over his
term to 7. S., from whom the plaintiff afterwards
received the rent.

It was determined, that the action against the lessee was maintainable, notwithstanding the assignment, and acceptance of rent,

$ 23. If the tenant be not assignee of the whole term, he is then in fact only an undertenant, and is not liable to an action on the covenant,

Holford v.
Hatch,
Doug. 182.

rre

§ 24. An action of covenant was brought for rent in arrear against the defendant, as assignee of one Saunders. On the trial it appeared, that the defendant was in possession of the premises during the time when the rent in arrear became due ; but that, by the deed under which he held, they were conveyed to him by Saunders for a day or two less than the original term. For the plaintiff it was contended, that, the covenant for rent being one of those which

runs

« PreviousContinue »