Covenant

In practice. The name of a common-law form of action ex contractu, which lies for the recovery of damages for breach of a covenant or contract under seal. Stickney v. Stickney, 21 N. H. 68. In the law of contracts. An agreement, convention, or promise of two or more parties, by deed in writing, signed, sealed, and delivered, by which either of the parties pledges himself to the other that something is either done or shall be done, or stipulates for the truth of certain facts. Sabin v. Hamilton, 2 Ark. 490; Co.m. v. Robinson, 1 Watts (Pat) 160; Kent v. Edmondston, 49 N. C 529. An agreement between two or more parties, reduced to writing and executed by a sealing and delivery thereof, whereby some of the parties named therein engage, or one of them engages, with the other, or others, or some of them, therein alao named, that some act hath or hath not already been done, or for the performance or non-performance of some specified duty. De Bolle v. Insurance Co., 4 Whart (Pa.) 71, 33 Am. Dec. 38. Classification. Co.venants may be classified according to several distinct principles of division. According as one or other of these is adopted, they are: Express or implied; the former being those which are created by the express words of the parties to the deed declaratory of their intention, while implied covenants are those which are inferred by the law 'from certain words ini a deed which imply (though they do not express) them. Express covenants are also called covenants "in deed," as distinguished from covenants "in law." McDonough v. Martin, 88 Ga. 675, 16 S. E. 59, 18 U R. A. 343; Co.nrad v. Morehead, 89 N. C. 31; Garstang v. Davenport, 90 Iowa, 359, 57 N. W. 876. Dependent, concurrent, and independent. Covenants are either dependent, concurrent, or mutual and independent The first depends on the prior performance of some act or condition, and, until the condition is performed, the other party is not liable to an action on his covenant In the second, mutual acts are to be performed at the same time; and if one party is ready, and offers to perform his part, and the other neglects or refuses to perform his, he who is ready and offers has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act. The third sort is where either party may recover damages from the other for the injuries he may have received by a breach of the covenants in his favor; and it is no excuse for the defendant to allege a breach of the covenants on the' part of the plaintiff. Bailey v. White, 3 Ala. 330; Tompkins v. Elliot, 5 Wend. (N. Y.) 407 ; Gray v. Smith (C. Ct) 76 Fed. 534. Principal and auxiliary; the former being those which relate directly to the principal matter of the contract entered into between the parties; while auxiliary covenants are those which do not relate directly to the principal matter of contract between the parties, but to something connected with it. Inherent and collateral; the former being such as immediately affect the particular property, while the latter affect some property collateral thereto or some matter collateral to the grant or lease. A covenant inherent is one which is conversant about the land, and kuit to the estate in the land ; as, that the thing demised shall be quietly enjoyed, shall be kept in repair, or shall not be aliened. A covenant collateral is one which is conversant about some collateral thing that doth nothing at ali, or not so immediately, concern the thing granted; as to pay a sum of money in gross, etc. Shep. Touch. 161. Joint or several. The former bind both or ali the covenantors together; the latter bind each of them separately. A covenant may be bath joint and several at the same time, as regards the covenantors; but, as regards the covenantees, they cannot be joint and several for one and the same cause, (5 Coke, 19a,) but must be either joint or several only. Covenants are usually joint or several according as the interests of the covenantees are such; but the words of the covenant, where they are unambiguous, will decide, although, where they are ambiguous, the nature of the interests as being joint or several is left to decide. Brown. See Capen v. Barrows, 1 Gray (Mass.) 379; In re Slingsby, 5 Coke, 18b. General or specific. The former relate to land generally and place the covenantee in the position of a specialty creditor only ; the latter relate to particular lands and give the covenantee a lien thereon. Brown. Executed or executory; the former being such as relate to an act already performed; while the latter are those whose performance is to be future. Shep. Touch. 161. Affirmative or negative; the former being those in which the party binds himself to the existence of a present state of facts as represented or to the future performance of some act; while the latter are those in which the covenantor obliges himself not to do or perform some act. Declaratory or obligatory; the former being those which serve to limit or direct uses; while the latter are those which are binding on the party himself. 1 Sid. 27; 1 Keb. 337. Real and personal. A real covenant is one which binds the heirs of the covenantor and passes to assignees or purchasers; a covenant the obligation of which is so connected with the realty that he who has the latter is either entitled to the benefit of it or is liable to perform it; a covenant which has for its object something annexed to, or inherent in, or connected with, land or other real property, and runs with the land, so that the grantee of the land ls invested with it and may sue upon it for a breach happening in his time. 4 Kent, Comm. 470; 2 Bl. Comm. 304; Chapman v. Holmes, 10 N. J. Law, 20; Skinner v. Mitchell, 5 Kan. App. 366, 48 Pac. 450; Oil Co. v. Hinton, 159 Ind. 398, 64 N. E. 224 ; Davis v. Lyman, 6 Conn. 249. In the old books, a covenant real is also defined to be a covenant by which a man binds himself to pass a thing reni, as lands or tenements. Termes de la Ley ; 3 Bl. Comm. 156; Shep. Touch. 161. A personal covenant, on the other hand, is one which, instead of being a charge upon real estate of the covenantor, only binds himself and his personal representatives in respect to assets. 4 Kent, Comm. 470; Carter v. Denman, 23 N. J. Law, 270; Hadley v. Bemero, 97 Mo. App. 314, 71 S. W. 451. The phrase may also mean a covenant which is personal to the covenantor, that is, one which he must perform in person, and cannot procure another person to perform for him. Transitive or intransitive; the former being those personal covenants the duty of performing which passes over to the representatives of the covenantor; while the latter are those the duty of performing which is limited to the covenantee himself, and does not pass over to his representative. Bac. Abr. Cov. Disjunctive covenants. Those which are for the performance of one or more of several things at the election of the covenantor or covenantee, as the case may be. Platt, Cov. 2l. Absolute or conditional. An absolute covenant is one which is not qualified or limited by any condition. The following compound and descriptive terms may also be noted: Continuing covenant. One which indicates or necessarily implies the doing of stipulated acts successively or as often as the occasion may require; as, a covenant to pay rent by installments, to keep the premises in repair or insured, to cultivate land, etc. Mo-Glynn v. Moore, 25 Cal. 395. Full covenants. As this term is used in American law, it includes the following: The covenants for seisin, for right to convey, against incumbrances, for quiet enjoyment, sometimes for further assurance, and almost always of warranty, this last often taking the place of the covenant for quiet enjoyment, and indeed in many states being the only covenant in practical use. Rawle, Cov. for Title, § 21. Mutual covenants. A mutual covenant is one where either party may recover damages from the other for the injury he may have received from a breach of the covenants in his favor. Bailey v. White, 3 Ala. 330. Separate covenant. A several covenant; one which hinds the several covenantors each for himself, but not jointly. Usual covenants. An agreement on the part of a seller of real property to give the usual covenants binds him to insert in the grant covenants of "seisin," "quiet enjoyment," "further assurance," "general warranty," and "against incumbrances." CSv. Code Cai. j 1733. See Wilson v. Wood, i7 N. J. Eq. 216, 88 Am. Dec. 231; Drake v. Barton, 18 Minn. 467 (Gil. 414). The result of the authorities appears to be that in a case where the agreement is silent as to the particular covenants to be inserted in the lease, and provides merely for the lease containing "usual covenants," or, which is the same thing, in an open agreement without any reference to the covenants, and there are no special circumstances justifying the introduction of other covenants, the following are the only ones which either party can insist upon, namely: Covenants by the lessee (1) to pay rent;
(2) to pay taxes, except such as are expressly payable by the landlord;
(3) to keep and deliver up the premises in repair; and
(4) to allow the lessor to enter and view the state of repair; and the usual qualified covenant by the lessor for quiet enjoyment by the lessee. 7 Ch. Div. 561. Specific covenants.

— Covenant against incumbrances. A covenant that there are no incumbrances on the land conveyed ; a stipulation against ali rights to or interests in the land which may subsist in third persons to the diminution of the value of the estate granted Bank v. Parisette, 68 Ohio St. 450, 67 N. E. 896; Shearer v. Ranger, 22 Pick. (Mass.) 447; Sanford, v. Wheelan, i2 Or. 301, 7 Pac. 324.

— Covenant for further assurance. An undertaking, in the form of a covenant, on the part of the vendor of real estate to do such further acts for the purpose of perfecting the purchaser's title as the latter may reasonably require. This covenant is deemed of great importance, since it relates both to the title of the vendor and to the instrument of conveyance to the vendee, and operates as well to secure the performance of all acts necessary for supplying any defect in the former as to remove all objections to the sufficiency and security of the latter. Platt, Cov.; Rawle, Co.v. §§ 98, 99. See Sugd. Vend. 500; Armstrong v. Darby, 26 Mo. 520.

— Covenant for quiet enjoyment. An assurance against the consequences of a defective title, and of any disturbances thereupon. Platt, Cov. 312; Rawle, Co.v. 125. A covenant that the tenant or grantee of an estate shall enjoy the possession of the premises in peace and without disfurbance by hostile claimants. Poposkey v. Munkwitz, 68 Wis. 322, 32 N. W. 35, 60 Am. Rep. 858; Stewart v. Drake, 9 N. J. Law, 141; Kane v. Mink, 64 Iowa, 84, 19 N. W. 852; Chestnut v. Tyson, 106 Ala. 149, 16 South. 723, 53 Am. St. Rep. lOi ; Christy v. Bedell, 10 Kan. App. 430, 61 Pac. 1095.

— Covenants for title. Covenants usually inserted in a conveyance of land, on the part of the grantor, and binding him for the completeness, security, and continuance of the title transferred to the grantee. They comprise "covenants for seisin, for right to convey, against incumbrances, or quiet enjoyment, sometimes for further assurance, and almost always of warranty." Rawle, Cov. § 21.

— Covenants in gross. Such as do not run with the land.

— Covenant not to sue. A covenant by one who had a right of action at the time of making it against another person, by which he agrees not to sue to enforce such right of action.

— Covenant of non-claim. A covenant Gometimes employed, particularly in the New England states, and in deeds of extinguishment of ground rents in Pennsylvania, that neither the vendor, nor his heirs, nor any other person, etc., shall claim any title in the premises conveyed. Rawle, Cov. § 22

— Covenant of right to couvey. An assurance by the covenantor that the grantor has sufficient capacity and title to convey the estate which he by his deed undertakes to convey.

— Covenant of seisin. An assurance to the purchaser that the grantor has the very estate in quantity and quality which he purports to convey. 11 East, 641; Rawle, Cov. § 58. It is said that the covenant of seisin is not now in use in England, being embraced in that of a right to convey; but it is used in several of the United States. 2 Washb. Real Prop. 648; Pecare v. Chouteau, 13 Mo. 527; Kincaid v. Brittain, 5 Sneed (Tenn.) 121; Backus v. McCoy, 3 Ohio, 221, 17 Am. Dec. 585; De Long v. Sea Girt Co., 65 N. J. Law, 1, 47 Atl. 491.

— Covenant of warranty. An assurance by the grantor of an estate that the grantee shall enjoy the same without interruption by virtue of paramount title. King v. Kilbride, 58 Conn. 109, 19 Atl. 519; Kincaid v. Brittain, 5 Sneed (Tenn.) 124; King v. Kerr, 5 Ohio, 156, 22 Am. Dec. 777; Chapman v. Holmes, 10 N. J. Law, 26.

— Covenant running with land. A covenant which goes with the land, as being annexed to the estate, and which cannot be separated from the land, and transferred without it. 4 Kent, Comm. 472, note. A covenant is said to run with the land, when not only the original parties or their representatives, but each successive owner of the land, wlll be entitled to its banefit, or be liable las the case may bs) to its obligation. 1 Steph. Co.mm. 455. Or, in other words, it is so calied when either the liability to perform it or the right to lake advantage of it passes to the assignee of the land. Tiliotson v. Prichard, 60 Vt. 94, 14 Atl. 302, 6 Am. St. Rep 95 ; Spencer's Case, 3 Coke, 31; Gilmer v. Railway Co., 79 Ala. 572, 58 Am. Rep. 623; Conduitt v. Ross, 102 Ind. 166, 6 N. E. 198

— Covenant to convey. A covenant by which the covenantor agrees to convey to the covenantee a certain estate, under certain circumstances.

— Covenant to stand seised. A conveyance adapted to the case where a person seised of land in possession, reversion, or vested remainder, proposes to convey it to his wife, child, or kinsman. In its terms it consists of a covenant by him, in consideration of his natural love and affection, to stand seised of the land to the use of the intended transferee. Before the statute of uses this would merely have raised a use in favor of the covenantee; but by that act this use is converted into the legni estate, and the covenant therefore operates as a conveyance of the land to the covenantee. It is now almost obsolete. 1 Steph. Comm. 532; Williams, Seis. 145; French v. French, 3 N. H. 261; Jack-Bon v. Swart, 20 Johns. (N. Y.) 85.

A writ or action that anciently lay for non-performance of any covenant in writing; a modern form of action ex contractu which lies for the recovery of damages for breach of a contract under seal; a promise or an express statement by or in a deed between two or more persons and sealed by one or more of them. Covenant against incumbrances: a covenant that property conveyed is not incumbered. Covenant alternative, or disjunctive: a covenant for the performance of one or more of several things at the election of the covenantor or the covenantee. Covenant collateral: a covenant conversant about something collateral to the matter of the undertaking. Covenant declaratory: a covenant which serves to limit or direct uses. Covenant dependent: a covenant which depends on some prior act or condition; a covenant the obligation to perform which depends on the performance of another. Covenant for further assurance: a covenant to do such further reasonable acts as may be necessary to complete a transfer. Covenant for quiet enjoyment: a covenant or assurance against the consequences of a defect of title. Covenant in deed, or in fact, or expressed: a covenant expressed in words, or inserted in a deed in specific terms. Covenant in law, or implied: a covenant implied by law from words in a deed which do not express it. Covenant inherent: a covenant conversant about the land, and knit to the estate in the land granted. Covenant of non-claim: a covenant that neither the covenantor nor any other person shall claim title to the property conveyed. Covenant of right to convey: a covenant of assurance that the grantor has capacity and title to convey. Covenant of seisin: a covenant of assurance that the grantor has the estate both in quantity and quality which he assumes to convey. Covenant of warranty: a covenant of assurance binding the heirs of the covenantor, and passing to assignees, or to the purchaser. Covenant running with land: a covenant which goes with the land, as being annexed to the estate, and which cannot be separated from the land, and transferred without it. Such is any covenant concerning title, except a covenant broken before the land passes. Covenant to convey: a covenant by which the covenantor undertakes to convey a certain estate. Covenant to stand seised to uses: a species of conveyance under the statute of uses by which a man seized of lands covenants, in consideration of blood or marriage, that he will stand seized to the use of his wife, or kinsman, for life, in tail or in fee. Covenant in gross: a covenant that does not run with the land. Covenant of title, or real covenant: a covenant of seisin, of right to convey, against incumbrances, for further assurance, of quiet enjoyment, or of warranty.

An agreement, a made by a deed, or contained persons, and sealed by one dependent on some prior or concurrent, when each party must aver performance it, before seeking to enforce They are also in deed, by law. They are inherent granted, or collateral, when run -with the land into Court for the District of Columbia, Circuit Courts of the United States; holding a special term, has the power Courts of the United States. This of cases arising under the copyright and other special cases. There is Court of the United States^ where is applied to the Kirufs courts, esor his successors, on the Norman from the King, of which the jurisdicauthority. 116. The term Popular to such courts as existed before the Witenagemote), which were national, popuas the hundred, county, and borough Record is one which has power to of its authority. The records of a kept on parchment, and written in other courts as conclusive evidence and these records are in many cases matters therein contained. land of a manor. Court-rolls: the of surrenders and admittances, wills, affecting the lands of the manor. tribute. who knowingly receives an outlaw. promise, or an express statement, in a deed, between two or more or more of them. Covenants are act or condition, or independent; is dependent on the other, and either of his own or readiness to perform the other against the other party. expressed in the deed, or in la.vT, implied when relating directly to the land affecting some other matter. They the hands of other grantees, or they classes: of seisin, that convey; against of quiet enjoyment; times called real which run with the land. sonal, and cannot be

[from L. Fr. convenant, from convenir, to agree; L. Lat. conventio.] In conveyancing. The agreement or consent of two or more by deed in writing, sealed and delivered, whereby either or one of the parties promises to the other that something is done, or shall be done. Shep. Touch. 160. Termes de la ley. Plowd. 308. — A promise by deed. 2 Steph. Com. 108. — A species of express contract contained in a deed, to do a direct act, or to omit one. 3 Bl. Com. 155. This term is not usually employed as descriptive of any particular kind of deed, but is applied to those clauses of agreement contained in any instrument under seal, as a deed, lease, &c., whereby either party stipulates for the truth of certain facts, or binds himself to perform or give something to the other. 2 Bl. Com. 304. As a covenant by a grantor that he has a right to convey, that the grantee shall have quiet possession; and by a lessee that he will pay the rent, keep the premises in repair, &c. Id. ibid. 2 Hilliard's Real Prop. 372, et seq.

remedies. The name of an action instituted for the recovery of damages for the breach of a covenant or promise under seal. 2 Ld. Raym. 1536; F. N. B. 145; Com. Dig. Pleader, 2 V 2; Ib. Covenant, Al. The subject will be considered with reference, 1, to the kind of claim or obligation on which this action may be maintained; 2, The form of the declaration; 3, The plea; 4, The judgment. 1. To support this action, there must be a breach of a promise under seal. Such promise may be contained in a deed-poll, or indenture, or be express or implied by law from the terms of the deed; or for the performance of something in futuro, or that something has been done; or in some cases, though it relate to something in presenti, as that the covenantor has a good title. 2 Saund. 181, b. Though, in general, it is said that covenant will not lie on a contract tn presentt, as on a covenant to stand seised, or that a certain horse shall henceforth be the property of another. Plowd. 308; Com. ig. Covenant, A 1; 1 Chit. Pl. 110. The action of covenant is the peculiar remedy for the non-performance of a promise under seal, where the damages are unliquidated, and depend in amount on the opinion of a jury, in which case neither debt nor assumpsit can be supported. When the breach of the covenant amounts to misfeasance, the covenantee has an election to proceed by action of covenant, or by action on the case for a tort, as against a lessee, either during his term or aftertioned.. When the contract under seal has been enlarged by parol, the substituted will be considered, together with the original agreement, as a simple contract. 2 Watts’s R. 451; 1 Chit. Pl. 96; 3 T. R. 590. 2. The declaration must state that the contract was under seal; and it should make profert of it, or show some excuse for the omission, 3 T. T. 151. Itis not in general requisite to state the consideration of the defendant’s promise, because a contract under seal usually imports a consideration; but when the performance of the corsideration constitutes a condition precedent, such performance must be averred. So much only of the deed and covenant should be set forth as is essential to the cause of action: although it is usual to declare in the words of the deed, each covenant may be stated as to its legal effect. The breach may be in the negative of the covenant generally, 4 Dall. R. 436, or according to the legal effect, and sometimes in the alternative; and several breaches may be assigned at common law. Damages being the object of the suit, should be laid sufficient to cover the real amount. Vide 3 Serg. & Rawle, 364; 4 Dall..R. 436; 2 Yeates’s R. 470; 3Serg. & Rawle, 564, 567; 9 Serg. & Rawle, 45. 3. It is said that strictly there is no general issue in this action, though the plea of non est factum, has been said by an intelligent writer to be the general issue. Steph. Pl. 174; but this plea only puts in issue the fact of sealing the deed. 1 Chit. Pil. 116. Non infregit conventionem, and nil debet, have both been held to be insufficient.. Com. Dig. Pleader, 2 V 4. In Pennsylvania, by a practice peculiar to that state, the defendant may plead covenants performed, and under this plea, upon he may give any thing in evidence which he might have pleaded. 4 Dall. 439; 2 Yeates, 107; 15 Serg. & Rawle, 105. And this evidence may be given without notice, unless called for, 2 W.C.C. R. 456. 4. The judgment is that the plaintiff recover a named sum for his damages, which he has sustained by reason of the breach or breaches of covenant, together with costs.