Adm'r, of V. Estate of CHITTENDEN, 'wheresoever she, the said Betsey, should direct; the grain January, ' of all kinds to be delivered in the half bushel at the usual 1842. 'season of the year, fit for use, and the flax in the head, well 'dressed. And the said Stephen (then in life) did thereby 'further agree to and with the said Betsey that he, the said Manwell. Stephen, would at all times furnish the said Betsey with 'necessary fire-wood, and water, and take care of all her cattle, horses and other live stock or creatures and see that all 'things of the like kind should be furnished and done, as by 'the said deed, here ready in court to be produced, will more ' fully appear. 'And the plaintiffs aver that the said estate of which the 'said Peter Manwell, deceased, died seized, consisted of his home farm, so called, containing one hundred and ninetytwo acres of land, with a dwelling house and out-buildings 'thereon, and was situated in the towns of Richmond and 'Jericho, in said county of Chittenden, and that the third 'part thereof, of which the said Betsey was then and there ' endowed in due form of law, is described as follows, viz: (describing the land). 'And the plaintiffs further aver that afterwards to wit: on 'the same 25th day of April, 1828, at Richmond aforesaid, 'the said Stephen (then in life) by virtue of said demise, ' entered into and upon all and singular the said demised 'premises, with the appurtenances, and became and was 'possessed thereof for the said term so to him thereof grant'ed as aforesaid. 'And the plaintiffs further aver that from and after the said 25th day of April, 1828, the said sixth part of the said land of which the said Betsey was seized and possessed as 'tenant in dower as aforesaid yielded annually, and there 'was annually during the time from the said 25th day of April, 1828, to the 2d day of March, 1837, (on which 2d 'day of March, 1837, the said Stephen died at Richmond) 'raised on said sixth part of said land, great crops and large quantities of produce, to wit: (describing the produce so 'raised,) and that the value of the one sixth part of the year'ly product of said land so set out as the dower of the said Betsey, as aforesaid, was not less than fifty dollars for each 'and every year, during all of said term. And the plaintiffs, further aver that the remaining two 1842. Adm'r. of Nye Estate of Manwell. 17 'thirds of the said land of which the said Peter Manwell de- CHITTENDEN, January, 'ceased, died seized, and of which the said Stephen (then in life) to wit, on the 25th day of April 1828, was then possessed, produced and yielded annually from the said 25th ' day of April, 1828, to the said second day of March, 1837, 'the day of the death of the said Stephen, and during all 'said time there was annually raised from the said remaining ' two thirds of said land, of which the said Peter Manwell, de'ceased died seized, great crops and large quantities of pro'duce, to wit: (describing the produce,) and that the value of one sixth part of the yearly product of said two thirds ' of the said land of which the said Peter, deceased, died seized, and of which the said Stephen (then in life but since 'deceased) was then possessed, during all of said time from 'the said 25th day of April, 1828, to the said second day of 'March, 1837, was not less than one hundred and fifty dol'lars for each and every year of said term.' The plaintiffs also averred the intermarriage of the said Betsey with the said Elias, and assigned breaches of the covenant as follows. 'And although the said Betsey hath always before her in'termarriage with the said Elias, at all times, from the time ' of making said indenture to the time of her intermarriage ' with the said Elias, and although the said Elias and Betsey 'have at all times since the marriage of the said Betsey to the 'said Elias, hitherto well and truly performed, fulfilled, and 'kept all things in the said indenture by her the said Betsey 'on her part to be performed, according to the tenor and ef'fect, true intent and meaning of the said indenture, to wit, 'at Richmond aforesaid, yet, protesting that the said Stephen 'Manwell did not in his life time perform, fulfil, or keep any 'thing in said indenture contained, on his part and behalf to 'be performed, fulfilled and kept, and that the said adminis'tratrix since the death of the said Stephen hath not kept, 'performed and fulfilled, any thing in said indenture contain'ed, on the part of him the said Stephen to be performed, ' fulfilled and kept, according to the tenor and effect, true in'tent and meaning thereof, the said Betsey and Elias say 'that after the making of the said indenture and during the ' term thereby granted, to wit, on the 1st day of March, 1838, 'at Richmond aforesaid, there was due to the said Elias and VOL. IV. W. R. IV. 3 CHITTENDEN, Betsey the whole of the sixth part of the yearly product January, Adm'r of Nye บ. Estate of 1842. or produce of the said third of the said land, of which 'the said Peter, deceased, died seized, which was set out 'to the said Betsey as her dower in said estate, and one 'sixth part of the yearly product or produce of the remaining 'two thirds of said land, of which the said Peter, deceased, died 'seized of each and every year during said term from the said '25th day of April 1828, to the said first day of March 1837. 'And so the said plaintiffs say that the said Stephen, al"though often requested, did not in his lifetime keep his 'said covenant so by him made as aforesaid, but refused so to 'do, and that the said Dulcena, administratrix as aforesaid, 'hath not, since the death of the said Stephen, kept the said 'covenant so by him, the said Stephen, made as aforesaid, though requested, but hath broken the same, and to keep 'the same with the said Betsey hath hitherto wholly neglect'ed and refused, and still doth neglect and refuse, to the 'damage of the plaintiffs, as they say, the sum of one thousand 'dollars.' The defendant pleaded, first, non est factum, and, secondly, 'that the said Stephen Manwell, in his lifetime, paid to 'the said Betsey the full amount of said rent in said lease specified by him to be paid, in manner and form as therein 'covenanted, to wit, at Richmond aforesaid, at the said times 'therein set for the payment thereof, and then and there 'performed fully and completely all other covenants in and 'by said lease by the said Stephen to be performed,' concluding with a verification. This plea was traversed and issues were joined to the country. On the trial in the county court the plaintiff introduced the lease declared upon, and, from the certificate thereon, made by the town clerk of Richmond, it appeared to have been recorded in the town clerk's office in Richmond on the 12th of May 1828. There were two subscribing witnesses to the lease, and it was acknowledged by both the lessor and lessee before a justice of the peace. The defendant objected to the admission of the lease upon the ground that it had not been recorded, and showed a certified copy, from the town clerks's office in Richmond, of a different lease of the same date. In the lease offered by the plaintiff, the defendant's intestate covenanted to deliver one sixth part of the produce raised on the land of the lessor, and, in the copy, he CHITTENDEN, January, covenanted to deliver one third part of such produce. In 1842. all other respects the lease and copy were alike. The court overruled the objection and admitted the lease. The plaintiff then introduced evidence tending to prove the value of the several kinds of produce, which were by said lease to be rendered annually by the lessee as rent. It was admitted, by the plaintiff, that the rent of the first year had been paid. The plaintiff's witnesses testified that the several kinds of produce mentioned in said lease, to wit, the hay, potatoes, garden vegetables, cider, apples, grain, &c., were annually placed by the lessee, in the places and buildings specified in said lease, but without setting apart any portion thereof for the lessor, and that for two or more years the plaintiff had stock of her own, to which some portion of the hay and grain were foddered out. Upon this evidence the counsel for the defendant requested the court to charge the jury that if they believed, from the evidence in the case, that the said Manwell in his lifetime had annually delivered or placed the produce, which he was annually to return as rent, into the specific places mentioned in said lease, it was a compliance with, or fulfilment of, the covenant in the lease, without any designation of the lessor's portion thereof, and that if afterwards the said Stephen Manwell foddered or used more than his share, that would be a matter of accounting between the parties, and not a breach of the covenant. But the court neglected so to charge the jury, and did charge them, among other things, to find the value of the crops mentioned in said lease, which were to be delivered by the said Manwell, deduct such payments as had been made, if any, and what had been consumed by the plaintiff's stock, and return their verdict for the balance. The jury returned a verdict for the plaintiffs, and the defendant excepted to the decisions and charge of the county court. The defendant then moved in arrest of judgment for the insufficiency of the declaration, which motion the county court overruled, and to this decision, also, the defendant excepted. W. P. Briggs and A. Peck, for defendant. Covenants are to be construed according to their spirit and intent. 6 Johns. R. 49. 3 Dane's Dig. 576. Adm'r of Nye v. Estate of CHITTENDEN, 1. Was it the intent of the parties to this lease that there should be a severance of the crops at the harvesting? January, 1842. Adm'r of Nye v. Estate of A hay crop cannot be justly and equitably divided in the haying season (which is the time intended by the lease for putting it in the barn) for reasons well known to intelligent farmers. Hay is of different qualities, and that even upon the same acre of meadow, and cannot all be cured alike in the meadow. And hence it must have been the intention to gather the whole crop into the barn, and then at the proper season to divide by weighing or admeasurement, or else by graduating the stock to their respective proportions. Judging from the whole lease, this last method would seem to have been the one intended, because the lessee covenants to "water and take care of all her cattle, horses," &c. There was manifest error in the court below in directing the jury, as matter of law, to give damages for the apples and cider, when the case shows no evidence tending to prove that they were not delivered in strict accordance with the wishes of the lessor. Yet the jury were told to find the value of the whole crops, and return a verdict for the balance. The construction, assumed by the court below, involves also this further difficulty. Here was an eight years occupation of the premises, and suppose there had been annually a severance and specific deposit of the lessor's portion of the crops but no taking away by her. Then the lessor must perform an impossibility, or be liable for a breach of covenant, because the literal construction of the lease holds him to deposit in "the barn" although "the barn" could not contain the fourth part. We say, therefore, that the delivery of the crops, in the places designated by the lease, was a satisfaction of the covenants, and that without a severance of them from the lessor's portion. Because we insist that such delivery, ipso facto, vested the title to the one third and one sixth portions thereof in the lessor, and made them liable to attachment by her creditors for the reason that here was a mere hiring upon shares, subject to the mutations of the seasons, and to be paid in specie. The rules of law, applicable to notes or contracts payable in specific articles. can have no bearing in the construc |