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waste or other cause of forfeiture, as their grantor or lessor had, or might have had, if such reversion had remained in such lessor or grantor. The subsequent section gives to the lessees of any lands, their assigns or personal representatives, the same remedy by action or otherwise against the lessor, his grantees, assignees, or his or their representatives, for the breach of any covenant or agreement in such lease contained, as such lessee might have had against his immediate lessor, except covenants against incumbrances or relating to the title or possession of the premises demised. But independently of these provisions, the supreme court held, in Norman v.Wells, (supra,) that a covenant of the lessor of a mill with the lessee and his assigns, not to establish a rival mill on the same stream, runs with the land.
With regard to the covenant for further assurance, it is the duty of the covenantee, when he deems a further assurance necessary to devise the same, and give notice to the covenantor, or the person bound to fulfill the covenant. This assurance must be reasonably devised, and not differ from the nature and purport of the original bargain. The party to whom this notice is given is entitled to a reasonable time to consider of it; and he is, therefore, not in default and liable to an action, until, after reasonable notice, he neglects or refuses to give such further assurance. (Miller v. Parson, 9 John. 336.)
The question has sometimes arisen as to the person competent to maintain an action for a breach of a covenant which runs with the land. In Kane v. Sanger, (14 John. 89, 93,) Spencer, J. intimated that where covenants run with the land, if the land is assigned or conveyed, before the covenants are broken, and afterwards they are broken, the assignee or grantee can alone bring the action of covenant to recover damages; but if the grantor or assignor is bound to indemnify the assignee or grantee against such breach of covenants, then the assignor or grantor must bring the action. But this dictum of the learned judge was shown, by Savage, Ch. J. in Withy v. Mumford, (supra, p. 140,) to have been unnecessary to a decision of the case before him, and unsupported by authority, and contrary to the general principles applicable to such cases.
The doctrine is now well supported that an assignee with warranty, or without warranty, can maintain an action for a breach of the covenant which has happened after the assignment. (See also Garlock v. Closs, 5 Cowen, 143, note. Beddoe v. Wadsworth, 21 Wend.
120.) In the last mentioned case, it was held that the covenants may be assigned as well by a release and quit-claim deed, as by deed of bargain and sale, or by lease and release. Even though the grantor had no title at the time of the conveyance, if possession be taken under the deed by the grantee, and there is a subsequent eviction by title paramount, the grantor, under a quit-claim deed from the original grantor, can maintain an action for the breach of the covenant of warranty, and for quiet enjoyment. (Id.) The, cases before cited show that in such a case an action could not be maintained for breach of the covenant of seisin, because that was broken at the time it was made, and a cause of action existed in the original covenantor from that moment. But with regard to the other covenants, those of warranty and quiet enjoyment, no cause of action existed until the eviction had taken place.
In cases where the covenant passes to the assignee with the land, it cannot be affected by the equities existing between the original parties, any more than the legal title to the land itself. A covenant under seal cannot be discharged by a parol agreement before breach. (Kay v. Waghorn, 1 Taunt. 427.) The discharge must be by matter of as high a nature as that which creates the debt or duty (Preston v. Christmas, 2 Wil. 86. Worrall v. Munn, 1 Seld. 239, per Paige, J.) This is universally true where the action is founded upon, or grows exclusively out of the deed or covenant. (Blake's case, 6 Co. 43.) Hence, in Suydam v. Jones, (10 Wend. 180,) before cited, where premises were conveyed subject to a mortgage, and it was agreed at the time of the conveyance, by parol, that the grantee should assume the payment of the mortgage and pay the grantor only the difference between the amount thereof and the sum agreed on as the consideration of the conveyance, and that the covenants of warranty and for quiet enjoyment should not be considered to extend to the mortgage, it was held that such agreement could not be set up in bar to an action brought by the assignee of the covenantee who was evicted under the mortgage. Such a defense at law, it will be seen, would be attempting to show by parol that the real contract was different from that expressed in the deed, and that a covenant under seal, can, before breach, be discharged by a parol agreement; neither of which can be done in a court of law,
The doctrine of this and the other cases shows the importance of expressing the whole contract fully and according to the intention
of the parties, in the instrument itself, and not leave any thing to the vague recollection of witnesses.
In assigning the breaches on these covenants, the pleader must be governed by the nature of the covenant. It belongs to a treatise on pleading, rather than to our principal subject, to suggest the various questions which will arise in asserting the remedy. All the covenantees must sue, although they did not all sign and seal the agreement. (Smith v. Kerr, 3 Comst. 144.) If one of two or more covenantors die, the action must be brought against the surviver. (Gere v. Clark, 6 Hill, 350.)
OF THE SEVERAL KINDS OF DEEDS KNOWN TO THE LAW.
Although in this state the mode of conveyance by fine and recovery, and by feoffment, has been abolished, and a strong inclination has been manifested to substitute the grant for most of the others, it is still deemed necessary to know what were the conveyances at the common law, and what derived their origin from the statute of uses.
According to the elementary writers, the original conveyances deriving their effect from the common law, were 1. Feoffment. 2. Gift. 3. Grant. 4. Lease. 5. Exchange. 6. Partition. These were called original conveyances. The following were denominated derivative conveyances. 1. Release. 2. Confirmation. 3. Surrender. 4. Assignment. 5. Defeasance. Those conveyances which owed their origin to the statute of uses were 1. Covenant to stand seised to uses. 2. Bargain and sale. 3. Lease and release. 4. Deed to lead or declare the uses of other more direct conveyances ; and 5. Deeds of revocation of uses.
Though some of these modes of conveyance have become obsolete even in England, and others have been expressly abolished in this state, it will still be deemed expedient to have some general knowledge of them all. We shall proceed therefore to notice briefly some of the points by which they were characterized.
Of Feoffment, Gift and Grant. The office of the feoffment was to convey a free inheritance to a man and his heirs. The usual operative words were, "give, grant and enfeoff,” but any other words of equal import would be sufficient. The mere signing and sealing of the feoffment were in no case sufficient to transfer an estate of freehold, unless possession was formally delivered by the feoffer to the feoffee. This was called livery of seisin, without which a deed of feoffment only passed an estate at will. There were, according to Coke, two kinds of livery: 1. A livery in deed; as when the feoffor takes the ring of the door, or turf or twig of the land, and delivers the same upon the land, to the feoffee in the name of seisin of the land. 2. Livery in law, was when the feoffor said to the feoffee, being in view of the house or land, I give you yonder land, to you and your heirs, and, go enter into the same and take possession thereof accordingly, and the feoffee accordingly, in the lifetime of the feoffor, enters; this is a good feoffment. (Co. Litt. 48 a, and 48 b.)
The operation of a feoffment was stronger than any other conveyance. It cleared away all diversions, abatements, intrusions and other wrongful or defeasible estates. It operated on the possession, without regard to the estate or interest of the feoffor; so that to make a feoffment good and valid, nothing was wanting but possession.
No person could make a valid livery in deed unless he had the actual possession at the moment of such livery; and a livery in law was not effectual to transfer the freehold, until an actual entry was made by the feoffee, in the lifetime of the feoffor and feoffee. But it is unnecessary to enlarge upon the doctrine and the refinements which grew up under this mode of conveyance. It is sufficient to say that it now has no existence in this state, and has been expressly abolished. (1 R. S. 738, § 136.)
A gift, as a mode of conveyance, at common law, was properly applied to the creation of an estate tail. It differed in nothing from the feoffment but in the nature of the estate that passed by it. Livery of seisin must be given to the donee to render it effectual. The gift had the same relation to an estate in fee tail, as the feoffment had to an estate in fee simple. The converting of estates in fee tail into estates in fee simple, necessarily dispensed with this mode of conveyance. Like the feoffment, therefore, it is now no longer one of the modes of conveyance in this state.
A grant, at common law, was properly applicable to the transfer of incorporeal hereditaments. The operative words were, dedi et concessi, given and granted. It required no livery of seisin. None, indeed, could be given of an incorporeal hereditament.
The operation of a grant by which any thing already in existence is conveyed, was materially different from that of a feoffment; for a feoffment, it has been seen, operated immediately on the possession without any regard to the estate or interest of the feoffor; whereas a grant only operated on the estate or interest of the grantor, and would pass no more than what he was by law enabled to convey. (Co. Litt. 251 a.)
This principle has been adopted by the revised statutes, which expressly enact that no greater estate or interest shall be construed to pass by any grant or conveyance thereafter executed, than the grantor himself possessed at the delivery of the deed, or could then lawfully convey, except that every grant shall be conclusive as against the grantor and his heirs claiming from him by descent, and as against subsequent purchasers from such grantor, or from his heirs claiming as such, except a subsequent purchaser in good faith for a valuable consideration, who shall acquire a superior title by a conveyance that shall have been first duly recorded. (1 R. S. 739, SS 143, 144.)
It was at common law, one of the consequences of the above doctrine with respect to grants, that they never worked a forfeiture; so that if tenant for life or years granted the estate in fee, it was no forfeiture, because nothing passed but that which lawfully might pass. (Co. Litt. 254 b.) This principle, too, is adopted by the revised statutes, and applied to any conveyance made by a tenant for life or years, of a greater estate than he possessed, or could lawfully convey. Such conveyance, it is enacted, shall not work a forfeiture of his estate, but shall pass to the grantee all the title, estate or interest which such tenant could lawfully convey. (1 R. S. 739, § 145.)
Formerly, as a grant did not require the notoriety of a livery of seisin to make it effectual, it was supposed to be necessary that it should be accompanied with the attornment of the tenant, that is,