Saltonstall v. Little, 90 Pa. St. 422; 35 Am. Rep. 683. A deed of lands reserved the timber, the grantee stipulating that the grantor should have two years to remove it. Held, that it might be removed after that time: Irons v. Webb, 41 N. J. L. 203; 32 Am. Rep. 193. A deed contained a specific description of land conveyed, and contained this clause: "Said J. C. Roberts reserving lots sold Nos. 1, 2, 3, 32, 33." The two last had not been sold. Held, that they did not pass, the clause being an exception: Roberts v. Robertson, 53 Vt. 690; 38 Am. Rep. 710. Land was conveyed by deed, "saving and excepting from the premises hereby conveyed all and so much and such part and parts thereof as has been lawfully taken for a public road." Held, that the fee in the soil of the road, and not merely an easement, was reserved to the grantor: Munn v. Worrall, 53 N. Y. 44; 13 Am. Rep. 470. A and B were co-tenants of a passway. A sold his portion thereof, and in the deed attempted to reserve to himself the right to pass and repass through said passway into and upon adjoining land. Held, that such reservation or exception was void, and that the other co-tenant might at all times so treat it: Marshall v. Trumbull, 28 Conn. 183; 73 Am. Dec. 667. A deed to a railroad company contained this clause: "Reserving to myself the right of passing and repassing and repairing my aqueduct logs forever, through a culvert six feet wide, and rising in height to the superstructure of the railroad, to be built and kept in repair by said company." Held, to confer on the grantor a new right not previously vested in him, operative as a reservation, and not as an exception, and vesting only an estate for life: Ashcroft v. Eastern Railroad Company, 126 Mass. 196; 30 Am. Rep. 672. A warranty deed granted a parallelogram of land nine chains and ninety-six links long by five chains and two links wide, "containing five acres, reserving from said grant a strip thirty-three feet in width on the south side of said tract for a public street." Held, that the fee of the thirty-three-feet strip passed to the grantee: Elliot v. Small, 35 Minn. 396; 59 Am. Rep. 329. § 2294. Covenants in Deeds-In General.-A covenant is an agreement under seal between two or more parties whose names are therein stated, by which some of them engage with the others, or some of them, that some act has or has not been done, or that it shall or shall not be done. A covenant is either express or implied. How 1 De Bolle v. Ins. Co., 4 Whart. 68; 21 Bouv. Law Dict. 403. 33 Am. Dec. 38. ever absurd or improbable a covenant may be, an action may be maintained for a breach thereof, unless it was not within the range of possibility.' Non-performance can be excused only by showing that its performance is unlawful, or has been rendered impossible by the intervention of causes beyond human control. It is not excused. by the fact that subsequent lawful act of third persons have rendered it impossible. Any words sufficiently showing the intention of the parties will make an express covenant; and it is not essential that the word "covenant" itself should be used for this purpose. Although a deed contains express covenants, other covenants may still be implied at common law; but an express covenant will qualify the generality of an implied covenant, and restrain it so that it shall not be held broader than the express covenant. Where officers or persons in a representative capacity, in executing deeds or leases, use words from which implied covenants would rise against individuals, they are not bound by such, but are only concluded by express covenants. Covenants are dependent or independent. He who covenants to do a particular thing is liable without any act on the part of the covenantee, unless the act of the latter is required to enable the former to comply with the covenant. But where acts are to be done simultaneously, neither party to the covenant can recover without showing a performance, or an offer to perform, on his part. The avowed inability of a defend 1 Beebe v. Johnson, 19 Wend. 500; 32 Am. Dec. 519. See post, Performance of Contracts. Morrow v. Campbell, 7 Port. 41; 31 Am. Dec. 704. 3 Reid v. Edwards, 7 Port. 508; 31 Am. Dec. 721. Marshall v. Craig, 1 Bibb, 379; 4 Am. Dec. 647; Randel v. Canal Co., 1 Harr. (Del.) 151; Lovering v. Lovering, 13 N. H. 513; Jackson v. Stewart, 20 Johns. 85; Bull v. Follett, 5 Cow. 170. Roebuck v. Dupuy, 2 Ala. 535; Morris v. Harris, 9 Gill, 27; Funk v. Crouch v. Fowle, 9 N. H. 219; 32 7 Webster v. Conley, 46 Ill. 13; 92 Am. Dec. 234. Rector v. Purdy, 1 Mo. 186; 13 Am. Dec. 494. Bean v. Atwater, 4 Conn. 3; 10 Am. Dec. 91; Greene . Linton, 7 Port. 133; 31 Am. Dec. 707. ant to perform, when an offer of performance is made by plaintiff, is sufficient to dispense with all subsequent formalities on the part of the plaintiff; but such avowal has no retroactive effect; nor will it cure defects in what plaintiff has already done, nor excuse him from showing both a willingness and an ability to perform in accordance with the contract.' Covenants are independent if by their terms the time of performance of one is so fixed that it is to happen or may happen before the performance of the other.2 In an action on a covenant to be performed on a particular day, no demand need be alleged. Breach of covenant may be assigned generally by negativing the words of the covenant. "Full covenants" are covenants for seisin, for right to convey, against encumbrances, for quiet enjoyment, for further assurance and of warranty. A deed good in form only is not a sufficient compliance with the covenant to make "a good and perfect deed." Good title is necessary to make "a good and perfect deed." A contract "to make a warranty deed free and clear of all encumbrances" is not satisfied by a deed containing covenants of general warranty and freedom from encumbrances, unless the grantor has at the time a perfect and unencumbered title. A contract by three to convey land with warranty is not complied with by a conveyance with warranty by one of the three warrantors, and a release or quitclaim deed from the other two.8 § 2295. Construction of Covenants.—A covenant should be construed reasonably, according to the sense of the 1 Hawley v. Mason, 9 Dana, 32; 33 Am. Dec. 522. 2 Sayre v. Craig, 4 Ark, 10; 37 Am. Dec. 757; Bowen v. Bailey, 42 Miss. 405; 2 Am. Rep. 601. Contra, Robinson v. Harbour, 42 Miss. 797; 2 Am. Rep. 671. Rector v. Purdy, 1 Mo. 186; 13 Am. Dec. 494. Bacon v. Lincoln, 4 Cush. 210; 50 Am. Dec. 765. 54 Kent's Com. 471; Wilson v. Wood, 17 N. J. Eq. 216; 88 Am. Dec. 231. Feemster v. May, 13 Smedes & M. 275; 53 Am. Dec. 83. Porter v. Noyes, 2 Me. 22; 11 Am. Dec. 30. 8 Lawrence v. Parker, 1 Mass. 191; 2 Am. Dec. 10. words employed,' and so as to effectuate the intention of the parties as ascertained from the whole deed, if agreeable to the rules of law. Being part of a deed, it is subject to the same rules of construction as the deed, and should be so expounded as to give effect to the actual intent of the parties; so that construction is to be preferred which renders the whole covenant operative. Express covenants are construed more strictly than implied ones, and more strongly against the covenantor, and most favorably to the covenantee." 3 § 2296. Covenant of Seisin. The covenant for seisin is that whereby the grantor covenants with the grantee that he, the grantor, has the very estate, both in quantity and quality, which he professes to convey." In England and some of the states a covenant of "seisin" or "lawful seisin" is a covenant that the grantor is seised of an indefeasible estate; but other states hold that this covenant is satisfied if the grantor has an actual seisin, claiming a fee, although his title was acquired tortiously, and is defeasible. It extends only to a title existing in a third person, and not to one in the grantee.10 In most of the states it is held that there is a breach of the covenant for seisin, if at all, as soon as the deed is executed; and that the right of action for damages arising from the breach 1 Pavey v. Burch, 3 Mo. 447; 26 Am. Dec. 682; Killian v. Harshan, 7 Ired. 497. And see Rogers v. Danforth, 9 N. J. Eq. 289; Toms v. Wilson, 4 Best & S. 442. 151; Randel v. Chesapeake etc. Canal Howell v. Richards, 11 East, 641; 2 Sweet v. Brown, 12 Met. 175; 45 Pecare v. Chouteau, 15 Mo. 527; Am. Dec. 243. Greenby v. Wilcocks, 2 Johns. 1; 3 Young v. Raincock, 7 Com. B. 310; 9 Raymond v. Raymond, 10 Cush. 134; Follett v. Grant, 5 Allen, 175; Wilson v. Widenham, 51 Me. 567; Watts r. Parker, 27 Ill. 229. 10 Fitch v. Baldwin, 17 Johns. 161. cannot pass to a subsequent assignee. In others, if there is an actual seisin, the breach is not final and total in the first instance, but is postponed until the grantee, or those claiming under him, are disturbed in their seisin, either actually or constructively; and the claim. for damages will pass by a conveyance to a subsequent grantee.2 6 4 The covenant is broken if the grantor has no possession of the land, either by himself or another; or if there is an existing title paramount; or an outstanding estate for life; or if there be an adverse possession of a part by a stranger; or a concurrent seisin of another as tenant in common; or if no such land exists as that purported to be conveyed; or even if there be a material deficiency in the amount of land; or if the grantor has only an estate-tail; 10 or if the grantor at the time of the conveyance was not the owner of the things affixed to the 7 1 Greenby v. Wilcocks, 2 Johns. 2; 3 Am. Dec. 379; Rawle on Covenants, 319; Salmon v. Vallejo, 41 Cal. 481; Wilson v. Cochran, 46 Pa. St. 229; Fowler v. Poling, 2 Barb. 300; Pollard v. Dwight, 4 Cranch, 430; Lot v. Thomas, 2 N. J. L. 407; 2 Am. Dec. 354; Redwine v. Brown, 10 Ga. 314; Marston v. Hobbs, 2 Mass. 439; 3 Am. Dec. 61; Wead v. Larkin, 54 Ill. 489; 5 Am. Rep. 149; Slater v. Rawson, 1 Met. 450; 6 Met. 439; Logan v. Moulder, 1 Ark. 313; 33 Am. Dec. 338; Hamil. ton v. Wilson, 4 Johns. 72; 4 Am. Dec. 253; Fitzhugh v. Croghan, 2 J. J. Marsh. 429; 19 Am. Dec. 139; Gilbert . Bulkley, 5 Conn. 262; 13 Am. Dec. 57. 2 Backus v. McCoy, 3 Ohio, 211; 17 Am. Dec. 585; Devore v. Sunderland, 17 Ohio, 60; 49 Am. Dec. 442; Great Western Stock Co. v. Saas, 24 Ohio St. 542; Martin v. Baker, 5 Blackf. 232; McCrady v. Brisbane, 1 Nott & McC. 104; 9 Am. Dec. 676; Dickson v. Desire, 23 Mo. 152; Richard v. Bent, 59 Ill. 38; 14 Am. Rep. 1. This is the English rule also: Kingdon v. Nottle, I Maule & S. 355; 4 Maule & S. 53. Colt v. McReynolds, 2 Robt. 655; Slater v. Ranson, 1 Met. 450; Allen v. Little, 36 Me. 170; Fitzhugh v. Croghan, 2 J. J. Marsh. 429; 19 Am. Dec. 139; Salmon v. Vallejo, 41 Cal. 481; Dickinson v. Hoomes, 8 Gratt. 397; Dale v. Shively, 8 Kan. 276. Cochrell v. Proctor, 65 Mo. 41; Pringle v. Witten, 1 Bay, 256; 1 Am. Dec. 612; Lot v. Thomas, 2 N. J. L. 407; 2 Am. Dec. 354; Pate v. Mitchell, 23 Ark. 590; 79 Am. Dec. 114; Mitchell v. Hazen, 4 Conn. 495; 10 Am. Dec. 167; Westbrook v. McMillan, 1 Hill, 317; 26 Am. Dec. 187; Logan v. Moulder, 1 Ark. 313; 33 Am. Dec. 338; Dickson v. Desire, 23 Mo. 151; 66 Am. Dec. 661. 5 Wilder v. Ireland, 8 Jones, 90; Mills v. Catlin, 22 Vt. 106. 6 376. Sedgwick v. Hollenback, 7 Johns. Downer v. Smith, 38 Vt. 464; Wheeler v. Hatch, 12 Me. 389. 8 Bacon v. Lincoln, 4 Cush. 212; 50 Am. Dec. 765; Basford v. Pearson, 9 Allen, 387; 85 Am. Dec. 764. Pringle v. Witten, 1 Bay, 256. 10 Comstock v. Comstock, 23 Conn. 352. |