and releases to the disseisor, with warranty, and afterwards is attainted, and dies leaving issue; in this case the issue may enter on the disseisor: for the warranty did not descend to the issue in tail; because his father, by the attainder, became incapable of transmitting any thing by descent. 50. Warranties may also be defeated by matter in deed as if the person to whom a warranty is made, or Lit. § 748. who has the estate to which the warranty is annexed, releases to the person who is bound to warrant, all warranties, or all manner of covenants real, or all manner of demands, the warranty is extinct. Nature of, TITLE XXXII. DEED. 1. Nature of. CHAP. XXV. Construction.-Of Covenants. 5. No technical Words neces sary. 13. Implied Covenants. 16. Qualified by express ones. the Grantee. 34. Exception. Under-tenants. 41. And go to the Grantees of 44. General and Specific Cove nants. 46. Usual Covenants for the 47. That the Grantor is seised in 51. For quiet Enjoyment. 79. Who are held to claim under 85. Who are bound to covenant for the Title. 89. Remedies under these Cove- 98. Covenants in Assignments of 100. 101. Covenants for Renewal of Leases. SECTION 1. A COVENANT is an agreement in a deed, by which one person obliges himself to do something beneficial to, or abstain from something which, if done, might be prejudicial to another; and a great variety of agreements of this kind have been introduced into modern deeds. 2. A covenant is generally an agreement to do Plow. 138. something in futuro; and differs from the case where 1 Vent. 26: an agreement refers to a thing which is not to be done by the person of any, but to a thing to be executed in itself: and where an agreement terminates in itself, it is not properly a covenant, but a defeazance. A covenant may, however, be executed, namely, that a thing is already done. it Touch. 162. 517. 3. A covenant can only be created by deed; but 1 Roll. Ab. may be as well by deed-poll, as by indenture; for Lit. § 375. the covenantee's acceptance of the deed is such an Green v. Horne, assent to the agreement, as will render it binding 1 Salk. 197. on him. But the party must be named in the deed poll. ante, c. 2. § 3. 4. Where lands are conveyed by indenture by two 1 Inst. 231 a. persons, and one of them does not seal the deed, yet if he enters upon the land, and accepts of the deed, in other matters, he will be bound by the covenants contained in it. And where an estate is limited to a person for life, with a remainder to another, who is not a party to the deed, if the remainder-man enters, he will be bound by the covenants contained in the deed. 5. The law has not appropriated any particular No Technical form of words to the creation of a covenant; there- Words necesfore any words will be sufficient which show the in tention of the parties. sary. 6. Thus, where A. leased to B. for years, upon Bro. Áb.Cov. condition that he should acquit the lessor of ordinary pl. 4. and extraordinary charges, and should keep and leave the houses, at the end of the term, in as good plight as he found them; it was held, that these words created a covenant. 7. Queen Elizabeth, by letters patent, let a house Bret v. to W. Cumberland, wherein were these words: " and Cumberland, Cro. Jac. 399. Holder v. 518. Hollis v. Carr, 2 Mod. 86. Id. 268. Appleton v. Binks, 5 East, 148. Rudge v. the said lessee, his executors and assigns, reparabunt domum prædictam, and shall leave the said house so repaired, &c." The Court held, that these words in the Queen's patent amounted to a covenant on the part of the lessee; and he accepting the lease, was bound by it. covenants to repair, &c. agreed, that the lessor this makes a covenant 8. If a lessee for years provided always, and it is shall find great timber, &c. 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 if the lessee covenanted to repair, provided always, that the lessor shall find great timber; without the word agreed, this proviso would not create any covenant on the part of the lessor, but would only be a qualification of the covenant of the lessee. 9. In articles of agreement, reciting an intended marriage, it was covenanted, that in consideration of the lady's portion, a jointure should be settled on her; and the conclusion was in these words: "And it is hereby agreed, that a fine shall be levied to secure the payment of the said portion."-It was resolved, that these words created a covenant to levy a fine. For wherever there is an agreement under hand and seal, covenant lies. 10. It was held in a modern case, that where a person, for himself, his heirs, executors, &c., on the part and behalf of A. B., covenanted that the said A. B., his heirs, &c., should pay a sum of money, and sealed the deed; he was personally bound by the covenant. 11. If a man conveys land to another in fee, with 1 Roll. Ab. warranty, and after the land is evicted by elder title 519. Hob. 3. for certain years, the grantee of the land may have 1 Ves. Rep. 516. an action of covenant upon the said words, against the grantor, upon the eviction, though the warranty be annexed to the freehold; for the said words make a covenant if a chattel be evicted; and a warranty, if a freehold be demanded. 12. A covenant being part of a deed, is subject to Touch. 166. the general rules of exposition of deeds. As, 1°. To be always taken most strongly against the covenantor, and most in advantage of the covenantee. 2°. To be taken according to the intent of the parties. 3% To T. Raym." be construed ut res magis valeat quam pereat. 4°. When no time is limited for its performance, it must be done within a reasonable time. 164. Covenants, 4 Rep. 80 b. 5-17 a. 13. There are some words which, when used in Implied particular contracts, will create a covenant. Thus the words grant or demise, in a lease for years, create a covenant in law for quiet enjoyment of the lands demised, during the term. And if the lessee be evicted by the lessor, or by any other person claiming a lawful title to the land, he may bring an action thereupon. Giles v. Hooper, 14. So if a lease for years be made, reserving or yielding and paying a certain rent; these words will Carth. 135. create a covenant for payment of the rent. 1639. 15. Lord Mansfield has observed, that the distinc- 3 Burr. R. tion between implied covenants, by operation of law, and express covenants, is, that express covenants are taken more strictly; for a man may, without consideration, enter into an express covenant, under hand and seal. genera Qualified by express ones. 16. An express covenant will qualify the lity of an implied covenant, and restrain it, so that it shall not extend farther than the express covenant, 17. A person made a lease of a house by the words Nokes's Case, demise, grant, &c., and the lessor covenanted that 1 Mod. 113. 4 Rep. 80 b. VOL. IV. Gg 1 Vesey, 101, |