principal (m). The court gave judgment for the defendant, observing that in a good lease the rent might be reserved to a stranger who was not a party to the deed, but not in the present case where the deed was void; that the deed being void, so as not to pass any interest in the land, it was but just that it should be void as to the reservation of rent, especially where the covenant was not with the plaintiff, and where the rent was not reserved to her. IV. Of particular Express Covenants. 1. Covenants for Title, p. 462. 2. Not to Assign without License, p. 470. 4. To Insure, p. 476. 1. Covenants for title are frequently termed real covenants, and run with the land: see ante, p. 450. The covenants for title usually entered into by the vendor, on a conveyance in fee, are five in number, viz. 1st. That he is seized in fee; 2nd. That he has good right to convey; 3rd. For quiet enjoyment; 4th. For freedom from incumbrances; 5th. For further assurance. Where in covenant against the executors of J. W. (n), the declaration stated that J. W. by indenture granted land, &c., to the plaintiff in fee, and warranted the land, &c. against himself and his heirs, and covenanted that he was, notwithstanding any act by him done to the contrary, lawfully and absolutely seised in fee simple, and that he had a good right, full power, and lawful and absolute authority to convey; and assigned a breach, that J. W. had not at the time of making the said indenture, nor at any time before or since, good right, full power, and lawful and absolute authority to convey or assure the premises to the plaintiff in manner aforesaid. The defendants prayed oyer of the indenture, (by which it appeared that J. W. covenanted for himself, his heirs, executors, and administrators, to make a cartway, and that the plaintiff should quietly enjoy without interruption, from himself or any person claiming under him, and lastly, that he, his heirs, or assigns, and all persons claiming under him, should make further assurance,) and then demurred; (after argument,) it was holden, that the words "that he had a good right, full power, and lawful and absolute authority to convey," (m) 9 Rep. 76, b. (n) Browning v. Wright, 2 Bos. & Pul. 13, recognized in Stannard v. Forbes, 6 A. & E. 589; 1 Nev. & P. 633. See also Foord v. Wilson, 2 Moore, 592; 8 Taunt. 543. were either part of the preceding special covenant "that he was, notwithstanding any act by him done to the contrary, lawfully and absolutely seised in fee;" or if not, that they were qualified and restrained by all the other special covenants to the acts of himself and his heirs. Covenant for quiet enjoyment during a term, "without the let, suit, interruption, &c. of J. M., his executors, administrators, or assigns, or any of them, or any other person or persons whomsoever, having or claiming any estate or right in the premises, and that free and clear, and freely and clearly discharged, or otherwise, by J. M., his heirs, executors, or administrators, defended, kept harmless, and indemnified from all former gifts, grants, &c. made or suffered by J. M. or by their or either of their acts, means, default, procurement, consent, or privity," preceded by a covenant that the lease was a good lease, notwithstanding any act of J. M., and followed by a covenant for further assurance by J. M., his executors, administrators, and all persons whomsoever claiming, during the residue of the term, any estate. in the premises under him or them; it was holden (o); Park, J., dissentiente, that the covenant for quiet enjoyment extended only against the acts of the covenantor and those claiming under him, and not against the acts of all the world. But where releasors covenanted (p) that, notwithstanding any act, &c. by them done to the contrary, they were seised of the land in fee; and also, that they, notwithstanding any such matter or thing as aforesaid, had good right to grant the premises; and likewise, that the releasee should quietly enjoy the same without the lawful let or disturbance of the releasors, or their heirs or assigns, or for or by any other person; and that the releasee should be indemnified by the releasors and their heirs against all other titles, charges, and incumbrances, except the chief rent payable to the lord of the fee; it was holden, that the general words of the covenant for quiet enjoyment, were not, in necessary construction, to be restrained by the language of the antecedent covenants for title and right to convey; although those antecedent covenants were certainly covenants of a limited kind, and provided only against the acts of the releasors; Lord Ellenborough, C. J. (who delivered the opinion of the court,) observing, "that the covenant for title, and the covenant for right to convey, are indeed what are somewhat improperly called synonymous covenants; they are, however, connected covenants, generally of the same import and effect, and directed to one and the same object; and the qualifying language of the one may therefore properly enough be considered as (0) Nind v. Marshall, 1 Brod. & Bingh. 319. (p) Howell v. Richards, 11 East, 633. See also Barton v. Fitzgerald, 15 East, 539; Gainsford v. Griffith, 1 Saund. 51; Hesse v. Stevenson, 3 Bos. & P. 568; Belcher v. Sikes, 8 B. & C. 185; Smith v. Compton, 3 B. & Ad. 189. virtually transferred to and included in the other of them. But covenant for quiet enjoyment is of a materially different import, and directed to a distinct object. The covenant for title is an assurance to the purchaser, that the grantor has the very estate in quantity and quality which he purports to convey, viz. in this case an indefeasible estate in fee simple. The covenant for quiet enjoyment is an assurance against the consequences of a defective title, and of any disturbances thereupon. For the purpose of this covenant, and the indemnity it affords, it is immaterial in what respects, and by what means, or by whose acts, the eviction of the grantee or his heir takes place; if he be lawfully evicted, the grantor, by such his covenant stipulates to indemnify him at all events. And it is perfectly consistent with reason and good sense, that a cautious grantor should stipulate in a more restrained and limited manner for the particular description of title which he purports to convey, than for quiet enjoyment. The C. J. added, that he did not find any case in which it is held that the covenant for quiet enjoyment is all one with the covenant for title, or parcel of that covenant, or in necessary construction to be governed by it, otherwise than as, according to the general rules for the construction of deeds, every deed (as was said by Hobart, C. J., Winch, Rep. 93, Sir George Trenchard v. Hoskins,) is to be construed according to the "intention of the parties, and the intents ought to be adjudged of the several parts of the deed, as a general issue out of the evidence; and intent ought to be picked out of every part, and not out of one word only." Consistently, therefore, with that case, and with every other that I am aware of, we are warranted in giving effect to the general words of the covenant for quiet enjoyment; and which are entitled to more weight in this case, inasmuch as they immediately follow and enlarge the special words of covenant against disturbance by the grantors themselves; and to restrain the generality of these words, thus immediately preceded by express words of a narrower import, would be a much stronger thing than to restrain words of like generality by an implied qualification arising out of another covenant where no such general words occurred. The person using the general words, could not forget that he had immediately before used special words of a narrower extent. If the covenant containing both the special and general words stood by itself, there would be no pretence for refusing effect to the larger words and if this could not be done in favour of express words of a narrower import in the same covenant, I cannot possibly understand upon what ground it should be done in favour of implied words of narrower import, which occur in another separate covenant, addressed, as has been before said, to a distinct object. If the purchaser of lands sells them, and afterwards takes a reconveyance from his vendee, with a covenant for a good title, he may, notwithstanding, maintain an action (q) against the original seller on his covenant for a good title. A general covenant for quiet enjoyment does not extend to tortious entries by a stranger (r). This opinion prevailed at an early period of our law, for in the Year Book, 26 Hen. VIII., 3 b, we find the following case :-A man made a lease for years by indenture, and by a clause in that lease covenanted to warrant the demised premises during the term of the lessee; afterwards the lessee was ousted by one who had not any right to the premises; and the question was, whether the lessee should have writ of covenant against the lessor or not and Englefield, J., said, "The lessee shall not have writ of covenant against his lessor where he is ousted by wrong, for he may have writ of trespass or ejectione firma against him who ousted him; but if he was ousted by one who had title paramount against him, as in that case he cannot have any remedy [against the person ousting him], he may have writ of covenant against the lessor by force of the warranty: quod fuit concessum per plusors." (20). The doctrine laid down in the foregoing case is not confined to covenants in leases for years, for in Dudley v. Folliott, 3 T. R. 584, it was adjudged, that a general covenant in a conveyance of lands in fee, that the grantor had legal title, and that the grantee might peaceably enjoy the premises without the interruption of the grantor and his heirs, or any other person, did not extend to the acts of wrong-doers; but only to the acts of persons claiming by a legal title. The distinction taken in these cases illustrates the reason of the following rule, viz. that in actions for breach of a general covenant for quiet enjoyment, it is essentially necessary that it should appear on the face of the declaration, that the eviction was made by a person claiming by a legal title. In Tisdale v. Sir W. Essex, Hob. 34, in an action on a covenant in a lease for years, for enjoyment during the term, the breach assigned was, that one H. Elsing entered upon the plaintiff and ejected him. The question on demurrer was, whether the ejectment by Elsing being taken to be by wrong, because no title was laid in him, should be adjudged a breach of covenant; the court was of opinion that it should not be so adjudged. (q) Sir Robt. Goodere, Knight, v. Peniston Lamb, commonly called Lord Viscount Melbourne, B. R. Trin. 37 Geo. III. Dampier MSS. L. I. L., L. P. B. 186. (r) Davie v. Sacheverell, adjudged on demurrer; 1 Roll. Abr. Condition, (V.) pl. 7; Hayes v. Bickerstaff, E. 21 Car. II. Vaug. 119. (20) See also 22 Hen. VI. 52 b, pl. 26; 26 Hen. VIII. 3 b, pl. 11; F. N. B. 342, ed. 4to, to the same effect. VOL. I. HH From the following cases it may be collected in what manner the averment of title in the party evicting ought to be made, in assigning the breach of covenant. In an action on a covenant (s) in a lease for quiet enjoyment, the breach assigned was, that at the time of the demise to the plaintiff, one J. B. Pierson had lawful right and title to the premises, and having such lawful right and title, entered and ejected plaintiff. On special demurrer to the declaration, it was objected, that the plaintiff, in alleging the eviction, ought to have shown the title of J. B. Pierson, or at least it should have been averred, that J. B. Pierson had such a title as was inconsistent with the plaintiff's title to possess these premises; that though it was alleged, that J. B. P. had lawful right and title to the premises, he might only have had a title to recover in a real action, and not a right of entry; and that the mischief to be apprehended from this loose mode of pleading was, that it might give a cover to an eviction by collusion (21). The court overruled the objections, and gave judgment for the plaintiff; Lord Kenyon, C. J., observing, that if the declaration was certain to a common intent, it was sufficient; that it would be doing violence to the words to say, that the lawful right and title, which it was stated J. B. P. had, did not legalize his entry; that the fair import of the words was, that he had lawful right and title to do that which he did. Buller, J., said, that when it was stated "that the party having a lawful right and title entered," it was the same as saying, "He entered by lawful right and title." In the preceding case the objection" that the title of the party evicting was not particularly set forth," was not pressed upon the court; but in Hodgson v. The East India Company, 8 T. R. 278, this objection recurred, and the attention of the court was directed to it; but it was overruled, notwithstanding a contrary decision on error in the Exchequer Chamber, in White v. Ewer, Cro. Eliz. 823; and Lord Kenyon, C. J., delivering the opinion of the court, said, that to compel the plaintiff to set forth the particulars of the title of the person who entered on him, would impose insuperable difficulties on him; for the knowledge of those particulars could not be acquired, except by an inspection of title deeds, to which plaintiff could not have any access. It must be observed, however, that although it be not necessary to set forth the particulars of the title of the party evicting, yet room must not be left for any intendment, that such title is derived from the plaintiff; for where defendant (t), by fine sur concessit, granted certain lands to plaintiff for years, and war(s) Foster v. Pierson, 4 T. R. 617. (t) Wotton v. Hele, 2 Saund. 177. (21) Another objection was taken, viz. that it was not stated, that the plaintiff was evicted by legal process; but this objection was abandoned, the precedents being against it. |