COVENANT1, contracts. A covenant, conventio, in its most general signification, means any kind of promise or contract, whether it be made in writing or by parol. Hawk2. P. C. b. 1, c. 27, 7, s. 4. In a more technical sense, and the one in which it is here considered, a covenant is an agreement between two or more persons, entered into in writing and under seal, whereby either party stipulates3 for the truth of certain facts, or promises to perform or give something to the other, or to abstain4 from the performance of certain things. 2 Bl. Com. 303-4; Bac. Ab. Covenant, in pr.; 4 Cruise, 446; Sheppard, Touchs. 160; 1 Harring. 151, 233 1 Bibb, 379; 2 Bibb, 614; 3 John. 44; 20 John. 85; 4 Day, 321.
2. It differs from an express assumpsit in this, that the former may be verbal, or in writing not under seal, while the latter must always be by deed. In an assumpsit, a consideration must be shown; in a covenant no consideration is necessary to give it validity, even in a court of equity5. Plowd. 308; 7 T. R. 447; 4 Barn. & Ald. 652; 3 Bingh. 111.
3. It is proposed to consider first, the general requisites8 of a covenant; and secondly9, the several kinds of covenants10.
4. - 1. The general requisites are, 1st. Proper parties. 2d. Words of agreement. 3d A legal purpose. 4th. A proper form.
5. - 1st. The parties must be such as by law can enter into a contract. If either for want of understanding, as in the case of an idiot or lunatic; or in the case of an infant, where the contract is not for his benefit; or where there is understanding, but owing to certain causes, as coverture, in the case of a married woman, or duress11, in every case, the parties are not competent, they cannot bind12 themselves. See Parties to Actions.
6. - 2d. There must be an agreement. The assent13 or consent must be mutual14 for the agreement would be incomplete if either party withheld15 his assent to any of its terms. The assent of the parties to a contract necessarily supposes a free, fair, serious exercise of the reasoning faculty16. Now, if from any cause, this free assent be not given, the contract is not binding17. See Consent.
7. - 3d. A covenant against any positive law, or public policy, is, generally speaking, void. See Nullity; Shep. Touchs. 163. As an example of the first, is a covenant by one man that he will rob another; and of the last, a covenant by a merchant or tradesman that he will not follow his occupation or calling. This, if it be unlimited18, is absolutely void but, if the covenant be that he shall not pursue his business in a particular place, as, that he will not trade in the city of Philadelphia, the covenant is no longer against public policy. See Shep. Touchs. 164. A covenant to do an impossible thing is also void. Ib.
8. - 4th. To make a covenant, it must, according to the definition above given, be by deed, or under seal. No particular form of words is necessary to make a covenant, but any words which manifest the intention of the parties, in respect to the subject matter of the contract, are sufficient. Sec numerous examples in Bac. Abr. Covenant, A Selw. N. P. 469; Com. Dig. Covenant, A 2; 3 Johns. R. 44; 5 Munf. 483.
9. In Pennsylvania, Delaware, and Missouri, it is declared by statute19 that the words grant, bargain, and sell, shall amount to a covenant that the grantor was seised of an estate in fee, free from all incumbrances done or suffered by him, and for quiet enjoyment20 against his acts. But it has been adjudged that those words in the Pennsylvania statute of 1715, (and the decision will equally apply to the statutory language in the other two states,) did not amount to a general warranty21, but merely to a covenant that the grantor had not done any act, nor created any incumbrance whereby the estate might be defeated. 2 Bin6. 95; 11 S. & R. 111, 112; 4 Kent, Com. 460.
10. - 2. The several kinds of covenants. They are, 1. Express or implied. 1. An express, covenant, or a covenant in fact, is one expressly agreed between the parties and inserted in the deed. The law does not require any particular form to create an express covenant. The formal word "covenant" is therefore not indispensably requisite7. 2. Mod. 268; 3 Keb. 848; 1 Leon, 324; 1 Bing. 433; 8 J. B. Moore, 546; 1 Ch. Cas. 294; 16 East, 352; 12 East, 182 n.; 1 Bibb, 379; 2 Bibb 614; 3 John. 44; 5 Cowen, 170; 4 Day, 321 4 Conn. 508; 1 Harring. 233. The words "I oblige;" "agree," 1 Ves. 516; 2 Mod. 266; or, "I bind myself to pay so much such a day, and so much such another day;" Hardr. 178; 3 Leon. 119, Pl. 199; are held to be covenants; and so are the word's of a bond. 1 Ch. Cas. 194. But words importing merely an order or direction that other persons should pay a sum of money, are not a coveiaant. 6 J. B. Moore, 202, n. (a.)
11. - 1. An implied covenant is one which the law intends and implies, though it be not expressed in words. 1 Common Bench Rep. 402; co. Lit. 139, b; Vaugnan's Rep. 118; Rawle on Covenants, 364. There are some words which of themselves do not import an express covenant, yet being made use of in certain contracts, have a similar operation and are called covenants in law. They are as effectually binding on the parties as if expressed in the most unequivocal terms. Bac. Ab. Covenant, B. A few examples will fully23 explain this. If a lessor demise24 and grant to his lessee25 a house or lands for a certain term, the law will imply a covenant on the part of the lessor, that the lessee shall during the term quietly enjoy the same against all incumbrances. Co. Litt. 384. When in a lease the words "grant," 1 Mod. 113 Freem. 367; Cro. Eliz. 214; 4 Taunt26. 609; "grant and demise, " 4 Wend. 502; "demise," 10 Mod. 162; 4 Co. 80; Hob. 12; or " demiserunt," I Show. 79 1 Salk. 137, are used, they are so many instances of implied covenants. And the words "yielding and paying" in a lease, imply a covenant on the part of lessee, that he will pay the rent. 9 Verm. 151; 3 Penn. 461, 464.
12. - 2. Real and personal. 1st. A real covenant is one which has for its object something annexed27 to, or inherent in, or connected with land or other property. Co Litt. 334; enk 241; Cruise, Dig. tit. 32, c. 25, s. 22; Platt. on Cov. 60, 61; 2 Bl. Com. 304. A covenant real, which necessarily runs with the land, as to pay rent, not to cut timber, and the like, is said to be an inherent covenant. Shep. To. 161. A covenant real runs with the land and descends28 to the heir; it is also transferred to a purchaser. Such covenants are said to run with the land, so that he who has the one is subject to the other. Bac. Ab. Covenants, E 2. See 2 Penn. 507; 10 Wend 180; 12 Mass. 306; 17 Mass. 586; 5 Cowen, 137; 5 Ham. 156; 5 Conn. 497; 1 Wash. C. C. 375; 8 Cowen 206; 1 Dall. 210; 11 Shep. 283; 6 Met. 139; 3 Mete29. 81; 3 Harring. 338; 17 Wend. 136.
13. - 2. As commonly reckoned, there are five covenants for title, viz: 1. Covenant for seisin. 2. That the grantor has perfect right to convey. 3. That the grantee shall quietly possess and enjoy the premises30 without interuption, called a covenant for quiet enjoyment. 4. The covenant against incumbrances. 5. The covenant for futher assurance. 6. Besides these covenants, there is another frequently resorted to in the United Staes, which is relied on more, perhaps, than any other, called the covenant of warranty. See Rawle on Covenants for Title, where the import and effect of these covenants are elaborately and luminously31 discussed.
14. - 3. A personal covenant relates only to matters personal, as distinguished32 from real, and is binding on the covenantur during life, and on his personal representatives after his decease, in respect of his assets. According to Sir William Blackstone, a personal convenant may be transformed into a real, by the mere22 circumstance of the heirs being named therein, and having assets by descent from the covenantor33. 2 Bl. Com 304. A covenant is personal in another sense, where the covenantor is bound to fulfil the covenant himself; as, to teach an apprentice34. F.N.B. 340, A.
15. Personal covenants are also said to be transitive and intransitive; the former, when the duty of performing them passes to the covenantor's representatives; the latter, when it is limited to himself; as, in the case of teaching an apprentice. Bac. Ab. h.t.
16. As they affect each other in the same deed, covenants may be divided into three classes. 1st. Dependent covenants are those in which the performance, of one depends on the performance of the other; there may be conditions which must be performed before the other party is liable to an action on his covenant. 8 S. & R. 268; 4 Conn. 3; 1 Blackf. 175; John. 209; 2 Stew35. & Port. 60; 6 Cowen 296; 3 Ala. R. 330; 3 Pike 581; 2 W. & S. 227; 5 Shep. 232; 11 Verm. 549; 4 W. C. C. 714; Platt on Cov. 71; 2 Dougl. 689; Lofft, 191; 2 Selw. N. P. 443, 444. To ascertain36 whether covenants are dependent or not, the intention of the parties is to be sought for and regarded rather than the order or time in which the acts are to be done, or the structure of the instrument, or the arrangements of the covenant. 4 Wash. C. C. 714; 1 Root, 170; 4 Rand. 352; 4 Rawle, 26; 5 Wend. 496; 2 John. 145; 13 Mass. 410; 2 W. & S. 227; 4 W. & S. 527; Willis, 157; 7 T. R. 130; 8 T.R. 366; 5 B. & P. 223; 1 Saund. 320 n.
17. - 2d. Some covenants are mutual conditions to be performed at the same time; these are concurrent37 covenants. When, in these cases, one party is redy and offers to perform his part, and the other refuses or neglects to perform his, he who is ready and offers, has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act. 4 Wash. C. C. 714; Dougl. 698; 2 Selw. N. P. 443; Platt. on Cov. 71.
18.- - 3d. Covenants are independent or mutual, when either party may recover damages from the other for the injury he may have received by a breach38 of the covenants in his favor, and when it is no excuse for the defendant39 to allege40 a breach of the covenants on the part of the plaintiff. 2 Wash. C. C. R. 456; 5 Shepl. 372; 4 Leigh, 21; 3 Watts41 & S. 300; 13 Mass. 410; 2 Pick. 300; 2 John. 145; 10 John. 203; Minor42 21; 2 Bibb, 15; 3 Stew. 361; 1 Fairf. 49; 6 Binn. 166; 2 Marsh43. 429; 7 John. 249; 5 Wend. 496; 3 Miss. 329; 2 Har. & J. 467; 4 Har. & J. 285; 2 Marsh. 429; 4 Conn. 3.
19. Covenants are affirmative and negative. 1st. An affirmative covenant is one by whicb the covenantor binds44 himself that something has already been done or shall be performed hereafter. Such L convenant will not deprive a man of a right lawfully45 enjoyed by him independently of the covenant; 5 as, if the lessor agreed with the lessee that he shall have thorns for hedges growing upon the land, by assignment of the lessor's bailiff; here no restraint is imposed upon the exercise of that liberty which the law allows to the lessee, and therefore he may take hedge-bote without assignment. Dy. 19 b, pl. 115; 1 Leon, 251.
20. - 2d. A negative covenant is one where the party binds himself that he has not performed and will not perform a certain act; as, that he will not encumber46. Such a covenant cannot be said to be performed until it becomes impossible to break it. On this ground the courts are unwilling47 to construe48 a covenant of this kind to be a condition precedent49. Therefore, where a tailor assigned his trade to the defendant, and covenanted50 thenceforth to desist from carrying on the said business with any of the customers, and the defendant in consideration of the performance thereof, covenanted to pay him a life annuity51 of 190, it was held that if the words "in consideration of the performance thereof," should be deemed to amount to a condition precedent, the plaintiff would never obtain his annuity; because as at anytime during his life he might exercise his former trade, until his death it could never be ascertained52 whether he had performed the covenant or not. 2 Saund. 156; 1 Sid. 464; 1 Mod. 64; 2 Keb. 674. The defendant, however, on a breach by plaintiff, might have his remedy by a crossaction of covenant. There is also a difference between a negative covenant, which is only in affirmance of an affirmative covenant precedent, and a negative covenant which is additional to the affirmative covenant. 1 Sid. 87; 1 Keb. 334, 372. To a covenant of the former class a plea of performance generally is good, but not to the latter; the defendant in that case must plead specially53. Id.
21. Covenants, considered with regard to the parties who are to perform them, are joint54 or several. 1st. A joint covenant is one by which several parties agree to perform or do a thing together. In this case although there are several covenantors there is but one contract, and if the covenant be broken, all the covenantors living, must be sued; as there is not a separate obligation of each, they cannot be sued separately.
22. - 2d. A several covenant is one entered into by one person only. It frequently happens that a number of persons enter into the same contract, and that each binds himself to perform the whole of it; in such case, when the Contract is under seal, the covenantors are severally bound for the performance of it. The terms usually employed to make a several covenant are " severally," or " each of us." In practice, it is common for the parties to bind themselves jointly55 and severally, and then the covenant is both joint and several. Vide Hamm. on Parties 19; Cruise, Dig. tit. 32, c. 25, s. 18; Bac. Ab. Covenant D.
23. Covenants are executed or executory. 1st. An executed covenant is one which relates to an act already performed. Shep. To. 161.
24. - 2d. An executory covenant is one to be performed at a future time. Shep. To. 161.
25. Covenants are obligatory56 or declaratory. 1st. An obligatory covenant is one which is binding on the party himself, and shall never be construed57 to raise a use. 1 Sid. 27; 1 Keb. 334.
26. - 2d. A declaratory covenant is one which serves to limit and direct uses. 1 Sid. 27; 1 Heb. 334.
27. Covenants are principal and auxiliary58. 1st. A principal covenant is one which relates directly to the principal matter of the contract entered into between the parties; as, if A covenants to serve B for one year.
28. - 2d. An auxiliary covenant is one, which, not relating directly to the principal matter of the contract between the parties, yet relates to something connected with it; as, if A covenants with B, that C will perform his covenant to serve him for one year. In this case, if the principal covenant is void, the auxiliary is discharged. Anstr. 256.
29. Covenants are legal or illegal. 1st. A legal covenant is one not forbidden by law. Covenants of this kind are always binding on the parties.
30. - 2d. An illegal covenant is one forbidden by law, either expressly or by implication. A covenant entered into, in violation59 of, the express provision of a statute is absolutely void. 5 Har. & J. 193; 5 N. H. Rep. 96; 6 N. H. Rep. 225; 4 Dall. 298; 6 Binn. 321; 4 S.& R. 159; 1 Binn. 118; 4 Halst. 252. A covenant is also void, if it be of immoral60 nature; as, a covenant for future illicit61 intercourse62 and cohabitation; 3 Monr. 35; 3 Burr. 1568; S. C. 1 Bl. Rep. 517; 1 Esp. 13; 1 B. P. 340; or against public policy; 5 Mass. 385; 7 Greenl. 113; 4 Mass. 370; 5 Halst. 87; 4 Wash. C. C. 297; 11 Wheat. 258; 3 Day, 145; 2 McLean, 464; 7 Watts, 152; 5 Watts & S. 315; 5 How. Miss. 769; Geo. Decis. part 1, 39 in restraint of trade, when the restraiut is general; 21 Wend. 166; 19 Pick. 51; 6 Pick. 206; 7 Cowen, 307; or fraudulent between the parties; 5 Mass. 16; 4 S. & R. 488; 4 Dall. 250; 7 W. & S. 111; or third persons; 3 Day, 450; 14 S. & R. 214; 3 Caines, 213; 15 Pick. 49; 2 John. 286 12 John. 306.
31. Covenants, in the disjunctive or alternative, are those which give the covenantor the choice of doing, or the covenontee the choice of having, performed one of two or more things at his election; as, a covenant to make a lease to Titus, or pay him one hundred dollars on the fourth day of July, as the covenantor, or the covenantee, as the case may be, shall prefer. Platt on Cov. 21.
32. Collateral63 covenants are such as concern some collateral thing, which does not at all, or not so immediately relate to the thing granted; as, to pay a sum of money in gross, that the lessor shall distrain64 for rent, on some other land than that which is demised65, or the like. Touchs. 161; 4 Burr. 2446; 2 Wils. R. 27; 1 Ves. R. 56. These covenants are also termed covenants in gross. Vide 5 Barn. & Ald. 7, 8; Platt on Cov. 69, 70.
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