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nant to stand seized, or that a certain horse shall henceforth be the property of another. Plowd. 308; Com. Dig. Covenant, A 1; 1 Chit. PI. 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 afterwards for waste. 2 Bl. R. 1111; 2 Bl. R. 848; but this has been questioned. 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. PI. 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. R. 151. It is 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 consideration 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, 304; 4 Dall. R. 436; 2 Yeates's R. 470; 3 Serg. & 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. PI. 174; but this plea only puts in issue the fact of sealing the deed. 1 Chit. PI. 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 notice to the plaintiff, without form, 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.
COVENANT, contracts. A covenant in its most general signification, means any kind of promise or contract, whether it be made in writing or by parol. Hawk. P. C. b. 1, c. 27, § 7, s. 4. In a more technical sense, and the one in which it is here considered, a covenant is an agreement between two or more persons, entered into in writing and under seal, whereby either party stipulates for the truth of certain facts, or promises to perform or give something to the other, or to abstain from the performance of certain things. 2 Bl. Com. 303, 4; Bac. Ab. Covenant, 4 Cruise, 446; Sheppard, Touchs. 160; 1 Harring. 151, 233; 1 Bibb, 379; 2 Bibb, 614; 3 John. 44; 20 John. 85; 4 Day, 321. It differs from an express assumpsit in this, that the former may be verbal, or in writing not under seal, while the latter must always be by deed. In an assumpsit, a consideration must be shown; in a covenant no consideration is necessary to give it validity, even in a court of equity, Plowd. 30S; 7 T. R. 447; 4 Barn. & Aid. 652; 3 Bingh. 111.
It is proposed to consider, first, the general requisites to make a covenant; and secondly, the several kinds of covenants.
§ 1. The general requisites are, 1st, proper parties; 2dly, an agreement; 3dly, a legal purpose; 4thly, a proper form.
1st. The parties must be such as by law they can enter into a contract. If either for want of understanding, as in the case of an idiot or lunatic; or in the case of an infant, where the contract is not for his benefit; or where there is understanding, but owing to certain causes, as coverture in the case of a married woman, or duress, in every case, the parties are not competent, they cannot bind themselves. See Parties to Actions.
2dly. There must be an agreement. The assent or consent must be mutual; for the agreement would be incomplete if either party withheld his assent to any of its terms. The assent of the parties to a contract necessarily supposes a free, fair, serious exercise of the reasoning faculty. Now, if from any cause, this free assent be not given, the contract is void. See Consent.
3dly. A covenant against any positive law, or public policy, is generally void. See Nullity; Shep. Touchs. 163. As an example of the first is a covenant by one man that he will rob another; and of the last, a covenant by a merchant or tradesman that he will not follow his occupation or calling. This, if it be
unlimited, is absolutely void; but, if the covenant be that he shall not pursue his business in a particular place, as, that he will not trade in the city of Philadelphia, the covenant is no longer against public policy. See Shep. Touchs. 164. A covenant to do an impossible thing is also void. Ib.
4thly. To make a covenant, it must, according to the definition above given, be by deed, or under seal. The law does not seem to have appropriated any set of words, absolutely required in creating a covenant. Any words which manifest the intention of the parties, to perform an act are sufficient. See numerous examples in Bac. Abr. Covenant, (A); Selw. N. P. 469; Com. Dig. Covenant, A 2; 3 Johns. R. 44; 5 Munf. 483. In Pennsylvania, Delaware, and Missouri, it is declared by statute that the words grant, bargain, and sell shall amount to a covenant that the grantor was seised of an estate in fee, free from all incumbrances done or suffered by him, and for quiet enjoyment against his acts. But it has been adjudged that those words in the Pennsylvania statute of 1715, (and the decision will equally apply to the statutory language in the other two states,) did not amount to a general warranty, but merely to a covenant that the grantor had not done any act, nor created any incumbrance where, by the estate might be defeated, 2 Binn. 95; 4 Kent, Com. 460.
§ 2. The several kinds of covenants. They are,
1. Express or implied. 1. An express covenant, or a covenant in fact, is one expressly agreed between the parties and inserted in the deed. 2. An implied or covenant in law, is one which the law intends and implies, though it be not expressed in words; as if a lessor demise and grant to his lessee a house or lands
for a certain term, the law will intend a covenant on the lessor's part, that the lessee shall during the term, quietly enjoy the same against all incumbrances. Co. Litt. 384; Bac. Abr. Covenant, (B).
2. Real and personal. 1. Covenants real are such as are annexed to estates, and descend to the heirs of the covenantee; such covenants are said to run with the land, so that he that has the one is subject to the other. Bac. Abr. Covenant, E 2. A covenant of warranty, and the covenant for quiet enjoyment are in the nature of real covenants. 4 Kent, Com. 459. 2. A personal covenant is one annexed to the person, as if a man covenants to serve another, F. N. B. 340, A.
3. Dependent and independent. 1. Those covenants are dependent, in which the performance of one depends on the prior performance of the other; and, therefore, till this prior condition is performed, the other party is not liable to an action on his covenant. 8 Serg. & Rawle, 268. 2. Covenants are independent, when either party may recover damages from the other for the injury he may have received by a breach of the covenants in his favour, and when it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff. 2 W. C. C. Rep. 456. There is also a sort of covenants which are mutual conditions to be performed at the same time; and, in these, if one party was ready and offered to perform his part, and the other neglected or refused to perform his, he who was ready and offered, has fulfilled his engagement, and may maintain an action for default of the other, though it is not certain that either is obliged to perform the first act. Dougl. 688.
Covenants are to be construed to be either dependent or independent
of each other, according to the intention and meaning of the parties, and the good sense of the case; and technical words should give way to such intention. 1 T. R. 645; 6 T. R. 668,571 ; 7 T. R. 130; 1 Saund. 320, n. 4.
COVENANT, AFFIRMATIVE. An affirmative covenant is one by which the covenantor binds himself that something has already been done or shall be performed hereafter. Such a covenant will not deprive a man of a right lawfully enjoyed by him independently of the covenant; as if the lessor agreed with the lessee that he shall have thorns for hedges growing upon the land, by assignment of the lessor's bailiff; here no restraint is imposed upon the exercise of that liberty which the law allows to the lessee, and therefore he may take hedge-bote without assignment. Dy. 19 b, pl. 115; 1 Leon. 251.
COVENANTS, in the disjunctive or alternative, are those which give the covenantor the choice of doing, or the covenantee the choice of having performed one of two or more things at his election; as a covenant to make a lease to Titus, or pay him one hundred dollars on the fourth day of July, as the covenantor, or the covenantee, as the case may be, shall prefer. Platt on Cov. 21.
COVEN ANTS.COLLATERAL. Collateral covenants are such as concern some collateral thing, which does not at all, or not so immediately relate to the thing granted; as, to pay a sum of money in gross, that the lessor shall distrain for rent, on some other land than that which is demised, or the like. Touchs. 161;
4 Burr. 2446; 2 Wils. R. 27; 1 Ves. R. 56. These covenants are also termed covenants in gross. Vide
5 Barn. & Aid. 7, 8; Platt on Cov. 69, 70.
COVENANTS, CONCURRENT. Concurrent covenants are those which are to be performed by the parties to each other at the same time. When, in these cases, 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 he is obliged to do the first act. 4 Wash. C. C. Rep. 714; 2 Selw. N. P. 443.
COVENANTS DECLARATORY are those which serve to limit and direct uses. 1 Sid. 27.
COVENANT, DEPENDENT. A dependent covenant is one which it is not the duty of the covenantor to perform, until some other covenant, contained in the same agreement, has been performed by the opposite party. When covenants are dependent or concurrent the covenantee is not entitled to recover for the breach of such a covenant until after he has performed the covenants on his part. 4 Wash. C. C. Rep. 714. Vide 2 Dougl. R. 089; Lofft, 194; Platt on Cov. 71 ; 2 Selw. N. P. 443, 444. To ascertain whether covenants are dependent or not, the intention of the parties is to be discovered, rather than the order or time in which the acts are to be done, the structure of the instrument, or the arrangement of the covenants. 4 Wash. C. C. R. 714, 715; Willis, 157; 7 T. R. 130; 8 T. R. 366; 5 Bos. & Pull. 233; 1 Saund. 320, note 4 ; Dougl. 690; 4 Watts, R. 26; 2 Johns. R. 145.
COVENANT, EXECUTED.— Where the covenant relates to an act already done, it is called a covenant executed. Shep. Touch. 161.
COVENANT, EXECUTORY.— An executory covenant is one to be performed at a future time. Shep. Touch. 161.
COVENANT, EXPRESS; express covenants are such as are
created by the express words of the parties, in a deed, declaratory of their intentions. The law does not require any particular form to create an express covenant. The formal word "covenant" is not indispensably necessary, 2 Mod. 268; 3 Keb. 848; 1 Leon. 324; 1 Bing. 433; 8 J. B. Moore, 546; 1 Ch. Cas. 294; 16 East, 352; 12 East, 182, n. The words "I oblige," "agree," 1 Ves. 516; 2 Mod. 266; or, "I bind myself to pay so much such a day, and so much at another day," Hardr. 178; 3 Leon. 119, pl. 199, are held to be covenants, and so are the words of a bond, 1 Ch. Cas. 194. But words merely importing an order or direction that other persons should pay a sum of money are not a covenant. 6 J. B. Moore, 202, n. (a)
COVENANT, INHERENT— Inherent covenants are such as are made in relation to land; as that the thing demised shall be quietly enjoyed; shall be kept in repair; shall not be aliened, or, if sold, that the lessor shall have the first refusal; to make further assurances and the like. Touchs. 161.
COVENANTS, IMPLIED. Implied covenants depend for their existence on the intendment and construction of law. There are some words which of themselves do not import an express covenant, yet being made use of in certain contracts have a similar operation and are called covenants in law; and are as effectually binding on the parties, as if expressed in the most unequivocal terms. Bac. Abr. Covenant, B. A few examples will be given of words on which implied covenants may be raised. If a lease fbr years be made by any of the following words, "grant," 1 Mod. 113; Freem. 367; Cro. Eliz. 214; 5 B. & Co. 609; 4 Taunt. 609; "grant and demise," 4 Wend. 502; "demise," 10 Mod. 162; 4 Co. 80; Hob. 12; or, " de.
miserunt," 1 Show. 79; 1 Salk. 137. » By legislative enactment in Pennsylvania the words " grant, bargain, and sell," shall be adjudged an express covenant to the grantee, his heirs and assigns; to wit, that the grantor was seized of an indefeasible estate in fee simple, freed from incumbrances done or suffered from the grantor, (excepting the rents and services due to the lord of the fee) as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed, and that the grantee, his heirs, executors, and assigns, may in any action assign breaches, as if such covenants were expressly inserted. Act of 28 May, 1715, s. 6; 2 Binn. 99; 4 Dall. 441; 4 Kent, Com. 460.
COVENANT, JOINT. A joint covenant is one by which several parties agree to perform or do a thing together. In this case, although there are several covenantors there is but one contract, and if the covenant be broken, all the covenanttors living must be sued; as there is not a separate obligation of each, they cannot be sued separately.
COVENANTS, MUTUAL or INDENDENT. Mutual or independent covenants are those entered into by the parties to an agreement towards each other, which each is bound to perform towards the other, notwithstanding the opposite party may not have fulfilled his. Platt on Cov. 71.
COVENANT, NEGATIVE. A negative covenant is one where the party binds himself that he has not performed and will not perform a certain act; as, that he will not encumber. Such a covenant cannot be said to be performed until it becomes impossible to break it. On this ground the courts are unwilling to construe a covenant of this kind to be a condition precedent. There
fore, where a tailor assigned his trade to the defendant and covenanted thenceforth to desist from carrying on the said business with any of the customers, and the defendant, in consideration of the performance thereof, covenanted to pay him a life annuity of 100/., it was held that if the words in consideration of the performance thereof, should be deemed to amount to a condition precedent, the plaintiff would never obtain his annuity; because as at any time during his life he might exercise his former trade, until his death it could never be ascertained whether he had performed the covenant or not. 2 Saund. 156; 1 Sid. 464; 1 Mod. 64; 2 Keb. 674. The defendant, however, on a breach by plaintiff, might have his remedy by a cross-action of covenant. There is also a difference between a negative covenant, which is only in affirmance of an affirmative covenant precedent, and a negative covenant which is additional to the affirmative covenant. 1 Sid. 87; 1 Keb. 334, 372. To a covenant of the former class a plea of performance generally is good, but not to the latter; the defendant in that case must plead specially. Ibid.
COVENANT NOT TO SUE. This is a covenant entered into by a party who had a cause of action at the time of making it, and by which he agrees not to sue the party liable to such action. Covenants of this nature, are either covenants perpetual not to sue, or covenants not to sue for a limited time; for example, seven years.
§ 1. Covenants perpetual not to sue. These will be considered with regard to their effect as relates, 1, to the covenantee; 2, to his partners or co-debtors.
1. A covenant not to sue the covenantee at all, has the effect of a release to him, and may be pleaded as such to avoid a circuity of action.