4 Co. 80. 1 Selw. 384. 1 Esp. Dig. 314, 315. Noke's case, 4 Co. 80. Carth. 98. 1 Esp. Dig. 314. Holder v. Taylor, 1 Esp. Dig. 340. 1 Selw. 391. I. Of covenants considered as express or implied. Express covenants, or covenants in deed, are such as are directly and explicitly mentioned and recited in the agreement between the parties. Implied covenants, or covenants in law, are such as the law raises or implies from certain technical expressions used in the agreement. Implied covenants therefore differ in this respect from express covenants, that the thing to be performed, in the case of express covenants, is founded on the words, which express what is to be done, as yielding and paying are covenants to pay rent; but implied covenants do not follow the words, but are the implications of law raised from the express covenants, and required to be performed, as necessary to the enjoyment of the express covenants. Thus, in leases for years, the words granted and demised, import an implied covenant, on the part of the lessor, that he has a good title, and therefore if lessee is evicted, he may maintain an action of covenant; for by reason of the defect of lessor's title, he could not enjoy the lease which had been made to him. So will an action lie on an implied covenant, though there has been no act to cause a breach. As where plaintiff was lessee, by the word demisi, and covenant was brought by lessee; because that lessor was not seized, but a stranger; and the action was held well to lie on the implied covenant, though lessee had never entered; for it would not be reasonable to force lessee to enter, and become, by such entry, a trespasser. As it regards express covenants it may be well to remark, that there is not any precise form of words necessary to constitute such covenant; any form of words, or mode of expression in a deed, which clearly evinces an agreement, will amount to a covenant. As if lessee for years covenant to repair, “ provided 1 Roll. Abr. 518, (C.) always and it is agreed that the lessor shall find great tim pl. 2. ber;" this word, agreed, will make a covenant on the part of the lessor to find great timber. II. Of mutual and independent covenants. Selw. 446. Where covenants are mutual and independent, one party may maintain an action against the other for a breach of his covenants, without averring a performance of the covenants on his the plaintiff's part; and the defendant cannot plead non-performance of such covenants on the part of Dawson v. Myer, the plaintiff, in bar of the plaintiff's action. Str. 712. French v. Trewin, As where plaintiff declared on a covenant between his testator and defendant, "that testator should assign to de- i Ld. Raym, 124. fendant a house, and that defendant should pay thirty pounds." The breach assigned was, "that defendant had not paid the thirty pounds." Defendant pleaded "that testator had not assigned;" and, on demurrer, it was held, that these covenants were mutual and independent, and the parties might have reciprocal actions; so that plaintiff's action lay before the assignment. III. Of contingent and dependent covenants. If A. covenants to do, or to omit to do, a certain act in consideration of the prior performance of some act or covenant on the part of B., A's. covenant is termed a dependent covenant; because B's. right of suing A., for a breach of this covenant, depends upon the prior performance, or that which the law considers as equivalent to performance, of the act or covenant to be performed by B. Now the prior act or covenant on the part of B., being in the nature of a condition precedent, is technically termed a condition precedent, the performance whereof must be shewn by B., in order to entitle him to damages against A. As where in covenant on an indenture of lease for seven years for non-payment of rent, it appeared, that the lease contained the usual covenants, that the lessee should rent, repairs, &c. and a proviso, that if the lessee, at the pay 1 Selw. 440. B. Porter v. Shephard, T. R. 665. Selw, 442. Selw. 444. 1 East, 619. end of the first three or five years, should be desirous of quitting, and should give six months notice thereof, before the expiration of the first three years, then from and after the expiration of the first three years, and payment of all rents, and performance of the covenants on the part of the lessee, the indenture should be void. It was holden, that the payment of rent, and performance of the other covenants by the lessee, were conditions precedent to the lessee's determining the term at the end of the first three years, and that merely giving six months notice, expiring with the first three years, was not sufficient for that purpose; Lord Kenyon, C. J. observing, that it had frequently been said, and common sense seemed to justify it, that conditions were to be construed to be either precedent or subsequent, according to the fair intention of the parties, to be collected from the instrument; and that technical words, if there were any to encounter such intention, (and there were not in this case) should give way to that intention; that it was impossible to read this lease, without seeing, that the parties intended that the tenant should do every thing required of him, before he could put an end to the lease. IV. Of concurrent covenants. Where reciprocal acts or covenants are to be performed by each party at the same time, they are technically termed concurrent acts or covenants; and in this case as well as in the case of dependent covenants, one party cannot maintain an action against the other without averring performance, or that which is equivalent to performance, of the acts or covenants to be performed on the plaintiff's part, As where A. covenanted that he would, on or before a Heard v. Wadham, certain day, convey land to B., by such conveyance as B's. counsel should advise; in consideration of which, B. covenanted to pay A., at or upon the execution of the conveyance, a certain sum of money; it was holden that A. could not maintain covenant against B. for non-payment of the Selw. 445. money, without shewing that he had conveyed, or that he was ready at the day to have conveyed, what he had covenanted to do, and that he had done every thing which lay upon him to do for that purpose, but that he was prevented from so doing by some act, or omission, or neglect, on the part of the defendant. So where plaintiff declared on an agreement by defenJones v. Barkley, dant to pay six hundred pounds, on plaintiff's assigning an Dougl. 659. equity of redemption in certain premises, &c. it was adjudged that the word on makes it a covenant to be performed at the same time by each party, and that therefore where plaintiff offered, and was ready to perform his part, and defendant refused to perform his, that plaintiff should maintain his action for the non-performance. V. Of covenants secured by penalty or bond, for performance. Per Lord Mansfield, 4 Burr. 2225. There is a difference between covenants in general, and covenants secured by a penalty or forfeiture. In the lat- in Lowe v. Peers, ter, the obligee has his election to bring an action of debt for the penalty, after a recovery of which, he cannot again resort to the covenant; because the penalty is a satisfaction for the whole; or he may wave the penalty, and proceed on the covenant, and recover more or less than the penalty toties quoties. Another distinction is, where the penalty is only in the nature of punishment, or in terrorem, and where it makes part of the agreement as a compensation. As if the covenant be "not to plough meadow," and there be a penalty of fifty pounds an acre, there a court of equity will relieve; for there the penalty is as a punishment. But if the covenant had been "to pay five pounds for- every acre of meadow ploughed," this is part of the agreement, and there is no alternative, it is the particular liquidated sum agreed upon by the parties, and is the proper quantum of the damages which the jury ought to find. 4 Burr. 2229. Selw, 406. Bull. N. P. 157. Selw. 402. Ibid. 403, in notis. VI. Of void and illegal covenants. Where the covenant is for any thing which is either contrary to law, or such as is contrary to good policy to support; this action cannot be maintained. Of this description are covenants in restraint of marriage, or in restraint of trade. For although the law, from the deliberation and solemnity which accompanies the execution of a deed, presumes a consideration, and delivers the covenantee from the necessity of proving it, yet that doctrine applies only, where the deed is good on the face of it; for a consideration cannot be presumed to support a deed which is void on the face of it. VII. Of joint and several covenants. Where the interest of the covenantees is joint, the action of covenant follows the nature of the interest, and must be brought in the names of all the covenantees; and this rule holds, even where the covenant is joint and several; for the wording of the covenant cannot make that several, which was before joint. So, on the other hand, where the interest is several, although the covenant be joint, yet it shall be taken to be several. So where the covenant is to several, for the performance Per Kenyon, C. J.in of several duties to each, the covenant shall be moulded Anderson v. Martin dale, 1 East's Rep. 501. Selw. 403, in notis. 5 Rep. 19, a. Selw. 403, in notis. according to the several interests of the parties, and each shall only recover for a breach as far as his own interest extends. So when it appears, on the face of the declaration, that each of the covenantees is to have a several interest or estate, then the addition of the words, "with each of them," will make the covenant several in respect to their several interests. As if one by indenture demise Blackacre to A., and Whiteacre to B., and covenant with each of them, that he is lawful owner of both the said acres; then, in respect of the several interests, the covenant, by those words, is made several. |