Thin's case, Bro. Covenant, 32. Hil, 16 Jac. charged, albeit he be named; [for there is not If a lease be made rendering rent, and if it be in arrear that the lessee, his executors and assigns shall forfeit 3s. 4d. nomine pœnæ, and the lessee assign the term; in this case it seems the assignee shall be charged with the nomine pænæ; [for it is in the nature of a rent.] And in all the cases before, where a cove- P. 180. nant is broken, an action of covenant may be brought (52). But herein note, that howsoever Note. in divers of the cases before, assignees are chargeable upon a covenant, yet the lessee himself is not hereby discharged [from an express covenant; nor are his heirs, executors or administrators, when there is an express covenant against them;] but the lessor Election. or grantee of the reversion hath election to charge which of them he will. And therefore if a lessee covenant for him and his assigns to repair, and the lessee assign; in this case the lessor may have his action of covenant against either of them. And if a lessee covenant for him, his executors, administrators and assigns, to repair the houses demised, and he in reversion doth grant away his reversion, and the lessee assign his estate; in this case, albeit the grantee of the reversion have accepted the rent of the assignee of the term, yet he may still have an action of covenant against the executor of the lessee upon this covenant (53). So if a patentee (52) If a covenant is to make an estate in land, a suit in equity is most proper, because a court of equity can give the thing itself, which is a higher and more adequate remedy than damages only, which is all the law gives. Per Ld. Hardwick, 3 Atk. 87, in the case of Furnival v. Crew. See that case; and further when remedy may be had in equity upon a covenant, Com. Dig. Chancery (2 X. 6.) (53) But although he may bring such action against lessee, after acceptance of rent from assignee, yet he may not demand the rent of the lessor after such acceptance. Per Jerman, Just. Sty. 300, Whitway v. Pinsent. See the same distinction in 1 Sid. 492. [He may demand the rent of the lessor under the covenant, though he cannot demand it by reason of tenure; in other words, he may bring his covenant, though he cannot maintain an action of debt. And where houses, held under a lease for seven years, with covenants 10. When a cove nant shall be said covenant for him and his assigns to repair, and he If A. and B. do covenant for themselves jointly, Co. 5. 23. without more words; the covenant is joint, and one of them cannot be charged without the other, [while both are alive; and if one of them die, the survivor or his heirs are solely chargeable at law; but in equity, and for the benefit of a surety, the principal's estate will remain liable, though there be not any remedy at law.] But if they covenant for themselves severally, the covenant is several, and they may [read, must] be sued apart. And if they covenant jointly and severally, then the covenant is joint and several, and theymay be sued either way, at the election of the covenantee. [See Additions, in p. 166.] Co. 5. 23. Where the deed itself, wherein the covenants are Dyer, 20. to be gone and contained, or the estate on which the covenants, discharged; and as accessary to the principal, do depend, is gone and determined, there regularly the covenants are when not; and how. that the lessee shall repair, were assigned upon mortgage, the Court of Chancery, upon a bill filed by the lessor, inasmuch as the defendant was only a mortgagee, and never in possession, would not assist the plaintiff to oblige him to perform the covenant in specie, but left him to recover at law as far as he could, and dismissed the bill. Spark v. Smith, 2 Vern. 275. Pilkington v. Shatter, 2 Vern. 377. And it was in Lord Mansfield's time determined at law, that an action could not be maintained by the lessor against the mortgagee, although the mortgage was forfeited, unless he was in actual possession. Eaton v. Jaques, Dougl. Rep. 454. But that decision is overruled by Stone v. Evans. Woodfall's Land. & Ten. 103, engrafted into the text. On all covenants in fact, the lessor or covenantee has his election, in covenants which bind the assignee, to charge him or the covenantor himself, even though he has accepted rent from the assignee. Barnard v. Godschall, Cro. Jac. 309. Also Cro. Jac. 522. Cro. Car. 188, and 580. Roll. Abr. 522. But upon a covenant in law, after assignment of the term, and acceptance of rent from the assignee, covenant does not lie against the assignor. Jones, 223. 1 Sid. 447.] (54) See more amply what covenants bind an assignee, and in what cases covenant lies against him. Vin. Abr. Covenant (L.) (M.) Gilb. Covenant, 333. Bac. Abr. Covenant (E. 3.) 40 E. 3. 27. Bro. Surrender, B. R. Moile v. Co. 1. 98. Co. 4. 80. 18 E. 4. 8. Pasc. 6 Car. gone also. And therefore if a lease for life or Where a covenant is become impossible to be Where there is an express covenant in a deed for quiet enjoying, the implied covenant is gone. Expressum facit cessare tacitum. * By a release of all covenants from the cove- Release. nantee the covenant is discharged, so as the release be by deed; for a covenant by deed cannot be *P. 181. discharged by words, [i.e. by an act equally solemn. The rule is, unum quodque dissolvitur, eodem modo quo ligatur.] And therefore if A. by deed covenant with B. to build a house by a day, and B. doth wish him to let it alone; this is no discharge of the covenant (57), [though it would diminish the damages.] If the lessor accept the rent of the lessee, or his B. R. Adjudged Bachelor's case, assignee, after a covenant broken; this [acceptance, if for a time after the breach, may dispense with a condition, though it] doth not discharge the breach of the covenant, but the lessor may sue for [on] it notwithstanding. And so we come to a Warranty, being a special kind of covenant, and therefore next in order to be spoken to. (55) So likewise if a parson, after making a lease, becomes non-resident. Cro. Eliz. 78. 245. (56) See accordingly Gilb. on Covenants, 472. (57) See fully in what cases and in what manner covenants shall be said to be suspended, defeated, discharged, or void, in Bac. Abr. Covenant (G.) Gilb. 470. 1 Wood, 397. 429. Com. Dig. Covenant (F.) Chancery (2 X. 3.) Vin. Abr. Covenant (O.) E E CHAP. VIII. Of a Warranty. [IN ancient times the doctrine of warranty was of great importance. It was one of the best guards or defences to a title. It created a defence only, and not a title. In modern practice a warranty is rarely of advantage to a title. In the first volume of Prest. Abstr. p. 409, a summary view is taken of the leading points which belong to warranties, as relevant to titles. Blackstone's examination of this subject as a general history of the law of warranties, and of the changes which have taken place, is well deserving of attention; but it is not in all its points correct. This chapter of Sheppard should then be read, and the learning should even, though obsolete in practice, be studied for the sake of its principles, and as the means of understanding various discussions which will present themselves to the student, when reading the books of Reports, and some of the elementary works. The observations of the editor will be principally directed to show in what manner, and to what extent, warranties are of importance in titles, under the practice of the present period. The statute book should also be consulted before the general learning of warranty shall be studied, since the statute law has in some cases, as under the statute de Bigamis, 13 Edw. 1, c. 6, (a statute very incorrectly translated,) created a warranty, or modified it; and, in various other instances, the statute law has prevented the effect of warranties, either generally, as warrants by tenants for life, (4 & 5 Ann, c. 16,) by tenants by the courtesy, or husbands seised in right of their wives, and tenants of estates of inheritance, and consequently tenants in tail (not being tenants in tail in possession,) with the qualification as to tenants by the courtesy, and husbands seised in right of their wives, that assets do not descend from the warrantor to the heir. And it may be doubted, whether the 4 & 5 Ann, c. 16, do not take away the effect of a warranty, by being tenant for life by the courtesy of England, even although assets may descend from him. In Finchley, 39. Co. super Lit. 365. Co. 1. 2. deed, in the 4 & 5 Ann, c. 16, there is a general Quid. A warranty is a covenant real (1), annexed to 1. Warranty. lands or tenements, [or rather to an estate of freehold or inheritance,] whereby a man [if named for that purpose, and in cases of warranty, by implication of law, though not named,] and his heirs are bound to warrant the same (2). Or it is where a man is bound to warrant the land or hereditament that another hath. [So that the warranty is knit to an estate which the warrantee hath or taketh.] And he that doth make this warranty is Warrantor. called the warrantor; and he to whom it is made Warrantee. the warrantee. There are two kind of warranties: 1. A war- 2. Quotuples. ranty in deed, or an express warranty, which is (1) Mr. Justice Blackstone (very improperly, as I conceive,) describes a warranty to be a kind of covenant real. It is, in fact, as the text defines it, a covenant real; and being, (as I apprehend,) a covenant real only, is one of the chief criterions to distinguish it from a covenant, which may be either real or personal, according to the different words used in the creation of it. (2) And either upon voucher, or by judgment in a writ of warrantia charta, to yield other lands and tenements to the value of those that shall be evicted by a former title, [which gives the party a compensation for the lands lost,] or else may be used by way of rebutter; Co. Lit. 365 a.; [which is a defence to the possession, by rebutting the right of the person entitled.] |