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one person lays himself under an obligation to do something beneficial to, or to abstain from an act which, if done, would be prejudicial to another (a).
A covenant is either implied or expressed, it subsists either in law or in fact.
An implied covenant, or a covenant in law, is that which the law intends and implies, though it be not expressed by words in the deed.
For quiet enjoyment.—Thus, when one makes a lease for years by the words "demise and grant," without any express covenant for quiet enjoyment; in this case, the law intends and makes such a covenant on the part of the lessor, which is, that the lessee shall quietly hold and enjoy the thing demised against all persons, at least, having title under the lessor and at least during the lessor's life, and (as some think, I Inst. 384.) during the whole term (£): and hereupon an action of covenant may be brought against him in the reversion; so that if the heir, that is in by descent put out the termor of his father, the termor may have this action against him.—If the party ousting the covenantee has no title, the covenantee it is said cannot, where the covenant is created by law, bring an action of covenant against the lessor (c).
But though such covenant in law is general against all persons that have title during the term, and extends to the heir after the death of the lessor, as against himself only, and shall charge the executors or administrators for any disturbance in the life of the covenantor, yet (it is said) it shall not charge them for any disturbance afterwards. [But see 1 Inst. 384.] He that sues, therefore, upon this covenant must shew that he was molested or evicted by one that had an elder title (d).
An implied covenant for quiet enjoyment, comprehends a covenant by implication that the lease shall be valid and not void or voidable; for of such there could of course be no enjoyment at all: and this principle is the same as that which respects any conveyance; for where a man undertakes to convey, he undertakes to convey by a good title (e).
To cultivate the Land.—A covenant is implied also, on the part of the lessee that he will use the land demised to him in a husbandman-like manner and not unnecessarily exhaust the soil by neglectful or improper tillage: for the bare relation of landlord and tenant is a sufficient consideration for the tenant's promise to manage a farm in a husbandlike manner (/).
It is likewise so notoriously the duty of the actual occupier to
repair the fences, and so little the duty of the landlord, that without an agreement to that effect, the landlord may maintain an action against his tenant for not so doing, upon the ground of the injury done to his inheritance (a).
To keep message t&c. in repair.—So, in case of a house or other tenement, a covenant is implied that the tenant will keep it in repair: a tenant for life therefore shall be obliged to keep the tenant's houses on the estate in repair, even though he be such without impeachment of waste: and such is the case even with respect to a tenant at will; for the tenant ought in justice to restore the premises in as good a plight as they can be, consistent with such deterioration as is unavoidable (b).
A mortgagee in possession need only keep the estate in necessary repair (e).
A yearly tenant however is bound only to tenantable, and not to lasting repairs.
Thus where an action was brought to recover damages for suffering the plaintiff's house to be out of repair. The case was that the defendant had rented a house of the plaintiff as tenant at will at 31/. per ann. which he had quitted: after the defendant had given up possession, the house being found to be much out of repair, the plaintiff had an estimate made of the sum necessary to put it into complete and tenantable repair, for which sum this action was brought. But Lord Kenyon said, it was not to be permitted to the plaintiff to go for the damages so claimed. A tenant from year to year was bound to commit no waste, and to make fair and tenantable repairs, such as putting in windows or doors that have been broken by him, so as to prevent waste and decay of the premises; but that in the present case the plaintiff had claimed a sum for putting on a new roof on an old worn-out house; this his Lordship thought the tenant not to be bound to do, and that the plaintiff had no right to recover it (d).
But strict tenant at will, it is said, is not bound to repair or sustain houses, like tenant for years (e).
It has been held that if a man has an upper room in a house, an action would lie against him to compel him to repair his roof (f); and so where a man has a ground-room, that they over him might have an action to compel him to keep up and maintain his foundation: but this seems to be erroneous; there is, indeed, a writ in Nat. Brev. 127. to a mayor, to command him that has the lower rooms to repair the foundation, and him that has a garret to repair the roof; but that was grounded on a custom (a).
(a) Cheetham v. Hampson. 4 T. R. 318
(J) Furguson v. a Esp. R. 590.
(c) 1 Cruise's Dig. IX. s. 14-15. (/) Anon. II Mod. 8.
Payment of Rent.—As in every contract, there must be a legal consideration to make it valid, so where the relation of landlord and tenant subsists, some quid pro quo must subsist also. Therefore, unless the lease be granted in consideration of a fine or a sum in gross, an implied contract is raised on the part of the tenant that he shall pay an annual rent.
These implied covenants are said to be inherent, that is, such as appertain especially to the land; as that the thing itself shall be quietly enjoyed, shall be kept in reparation, and shall not be aliened; or to pay rent, not to cut down timber trees, or to do waste; to fence the coppices, when they be new cut and the like (b).
An implied covenant is in all cases controuled within the limits of an express covenant; for expressum facit cessare taciturn (c).
Thus for example, with respect to the covenant for quiet enjoyment | if a man lease for years by the words "I have demised," &c. and the lessor covenant that the lessee shall enjoy during the term without eviction by the lessor, or any claiming under him (d), this express covenant qualifies the generality of the covenant in law and restrains it by the mutual consent of both parties, that it shall not extend farther than the express covenant : and this is consonant to the principle, that where there is an express promise, another promise cannot be implied (e).
Caution, therefore, is to be used in introducing into a lease express covenants in certain cases; as the evil intended to be guarded against may frequently be prevented or recompensed in a more limited degree, by an express than an implied covenant.
The distinction between implied covenants by operation of law, and express covenants, is that express covenants are to be taken more strictly (/).
If a bond is for performance of covenants, it is forfeited by a breach of a covenant in law; as if the lessee be evicted out of the premises demised (g).
Where the plaintiff paid money to the defendant, on the defendant's promise to make him a lease of land, and before the lease made the defendant was evicted, the plaintiff recovered the money in this action, the consideration not having been performed (h).
(a) Tenant v. Goldwin. 6 Mod. 311-314.
(A) Shep. Touch. Mr.
(c) Nokes's case. 4 Co. R. 80. Gainsford v. Griffith. 1 Saund. 60. Notes v. James, Cro. Elir. 674. Deering v. Farrington. I Mod. 113. Frontin v. Small, 2 Ld. Raym1418.
(d) Bac. Abr. tit. Covenant. (B.)
(A) Brigg'sCase. Palm. 364. I Esp. N.P.
3. Fide ante, Ch.II, Sec. II.
Where a lessee covenanted that he would at all times and seasons of burning lime, supply the lessor and his tenants with lime at a stipulated price for the improvement of their lands, and repair of their houses, it was held that this was also an implied covenant, that he would burn lime at all such seasons, and that it was not a good defence to plead, that there was no lime burned on the premises out of which the lessor could be supplied (a).
Section II. Of express Covenants.
Covenants.—An express covenant is the agreement or consent of two or more by deed in writing, sealed and delivered, whereby either of the parties promises the other that something is done already, or shall be done afterwards. He that makes the covenant is called the covenantor* and he to whom it is made the covenantee (b).
The general principle is clear, that the landlord having the jus disponendi, may annex whatever conditions he pleases to his grant, provided they be not illegal or unreasonable (r).
No particular technical words are requisite towards making a covenant; for any words, it seems, which shew the parties' concurrence to the performance of a future act will suffice for that purpose; as "yielding and paying," &c. (d).
Thus if lessee covenant to repair, "provided always and it is agreed, that the lessor shall find great timber," &c. this makes a covenant on the part of the lessor to find great timber by the word "agreed," and it shall not be a qualification of the covenant of the lessee: but without this word, it would have been only a qualification of the covenant of the lessee (e).
Covenants are either real or personal (f). —Covenants real, or such as are annexed to estates, shall descend to the heirs of the covenantee, and he alone shall take advantage of them; and such covenants are said to run with the land, so that he that hath the one, is subject to the other; for which reason warranties were called real covenants.— Covenants personal, are such whereof some person in particular shall have the benefit, or whereby he shall be charged; as when a man covenants to do any personal thing, as to build, or repair a house, &c. or the like (g).
In a lease of ground with liberty to make a watercourse, and erect a mill, the lessee covenanted for himself, his executors, and assigns, not to hire persons to work in the mill, who were settled in other parishes without a parish certificate: held that this covenant did not run with the land, or bind the assignee of the lessee (a).
(a) Lord Shrewsbury v. Gould, a B. & A.
(J) Shep. Touch. 160. U) Roe d. Hunter v. Galliers. 1 T. R. 133-7.
(d) Lant v. Norris. I Burr. 487-290. Hollis v. Carr. a Mod. 87-91.
(t) Bac. Abr. tit. Covenant. (A.) & n. c.
(/) Ibid. (E. i.)
(f) Shep. Touch. 161.
A covenant by the lessor to supply the premises demised (which were two houses) with a sufficient quantity of good water, at a rate therein mentioned for each house, is a covenant that runs with the land (*).
As to the construction of covenants, all contracts are to be taken according to the intent of the parties expressed by their own words; and if there be any doubt in the sense of the words, such construction shall be made as is most strong against the covenantor; lest by the obscure wording of his contract, he should find means to evade and elude it (c).
Under a lease for fourteen or seven years, the lessee only has the option of determining it at the end of the first seven years; every doubtful grant being construed in favour of the grantee (J).
So tenant by the curtesy, in tail after possibility of issue extinct, in dower, for life, for years, by statute or elegit, guardian, &c. hold their estates subject to a condition in law; so that if either of them alien his land in fee, or claim a greater estate in a court of record than his own, he forfeits his estate, and he in remainder or reversion may enter; and if such tenant do waste, he in reversion shall recover the place wasted (e).
Of Conditions.—A condition signifies some quality annexed to a real estate by virtue of which it may be defeated, enlarged, or created upon an uncertain event. Also qualities annexed to personal contracts and agreements are frequently called conditions; and these as well as covenants, must likewise be interpreted according to the real intention of the parties, &c. (/").
Conditions are either precedent or subsequent. Where a condition must be performed before the estate can commence, it is called "a condition precedent;" but where the effect of the condition is either to enlarge or defeat an estate already created, it is then called "a condition subsequent" (g).
Conditions are most properly created by inserting the very word "condition" or the words " on condition;" but the word commonly and as effectually made use of is that of "provided ," wherefore a condition, and a proviso, are synonymous terms (h).
But if a proviso or condition have dependence upon another clause of the deed, or be the words of the lessee to compel the lessor to do something, then it is not a condition, but a covenant only; as if there