COVENANT. On the trial of the cause in March T. 1806, it
appeared, that the defendant and his wife had sold and conveyed a
tract of land to the plaintiff for 2390 dollars, by deed dated the
8th of September 1797; and had therein covenanted, 'that the
defendant was lawfully seised of a good, sure and indefeasible
estate of inheritance, in fee simple, in the said land, and had
good right, full power, and authority, in his own right, to grant
and convey the same to the plaintiff in fee.' The deed, also,
contained a special warranty against the grantor and his heirs, and
all persons claiming under them. Bender took possession of the
premises and made considerable improvements, as well in fences and
buildings, as in the cultivation of the soil; so that the property
was valued, in May 1802, at 5000 dollars. An ejectment was brought,
however, at the suit of Benjamin Hilton against Bender, in the
Circuit Court of the United States; and, after a trial, verdict,
and judgment for the plaintiff, a Hab. Fac. Possess. issued
returnable to May T. 1802, upon which the possession was delivered
on the 4th of February 1802. Bender then instituted the present
suit, in which the declaration stated the covenant, that the
defendant was seised of an indefeasible estate in fee simple, and
that he had a good right to convey the same to the plaintiff; and
assigned as a breach, that the defendant was not so seised, nor had
he good right to convey the said land in fee to the plaintiff.
Profert of the deed was made, but oyer was not demanded. The
defendant pleaded Non infregit conventionem, on which issue was
joined; and, also, performance with leave, &c. to which the
plaintiff replied, generally, non-performance, and issue was
thereupon joined. At the trial of the cause, in March term 1806,
upon the recommendation of the Court, and with the consent of the
parties, a verdict was taken in these terms: 'The jury find for the
plaintiff 6232 dollars 50 cents: but if the Court shall be of
opinion, that the plaintiff is not entitled to recover the value of
the improvements made by him, after he purchased of the defendants,
then they find damages 2979 dollars 14 cents, and 6 cents costs.'
[
Footnote 1]
Page 4 U.S.
436, 437
Before the argument, on the point, which the jury had thus
submitted to the court, a motion was made in arrest of judgment, on
the following grounds: 1st. That the declaration was vicious,
inasmuch as it did not assign a legal breach of the covenant. 2d.
That there was not, in any part of the pleadings, sufficient
matter, for the court to render judgment in favour of the
plaintiff. 3d. That it is apparent on the record, that the
plaintiff has no cause of action. In support of these objections,
it was argued, for the defendant, 1st. That the declaration does
not aver, that the recovery in Hilton's lessee v. Binder, was upon
a title paramount. Freem. 122. Hob. 12. 4 Co. 80. Cro. J. 674,
5.Hob. 34. Ca. temp. Hardw. 271. Cro. E. 917. Cro. J. 315. Cro. E.
823. Cro. Car. 5. Vaugh. 118. 2 Vent. 61. Cro. J. 444. 1 Mod. 292.
1 Lev. 301. 3 Mod. 135. 3 T. Rep. 584. 2d. That although the modern
authorities admit, that it is sufficient, if the breach is assigned
in the same general words, as the covenant; yet, in that case, it
is necessary, that the replication should be more specific and
particular. Cro. E. 544. Cro. J. 171. 4. T. Rep. 620. For non
infregit conventionem is no plea, unless the breach is assigned
affirmatively. Co. Litt. 303. 6. And it is a rule in pleading, th t
you cannot go to issue on a general averment of performance. 3
Woodes. 93. Cowp. 578. 3d. That the declaration contains a profert
of the deed; and, according to the practice of Pennsylvania, oyer
must be presumed,
Page 4 U.S.
436, 438
which spreads the deed upon the record. Then, as it will appear,
that the deed contains a special warranty, in the conclusion, the
antecedent express covenant, that the grantor was seised of an
indefeasible estate, & c. is thereby restrained and controuled.
3 Lev. 46. 1 Lev. 57. Rep. temp. Finch 96. 2 Bos. and Pull. 13. 3
Bos. and Pull. 565. 573. Thus, independent of general authorities,
the words 'grant, bargain and sell,' which by themselves, are
declared in an act of assembly, to import a general warranty, have
always been considered as qualified and limited, if the deed
contains a subsequent special warranty. 1 St. Laws 109. And on this
construction of the deed, the plaintiff had no cause of action,
when the suit was instituted. For the plaintiff, it was answered,
1st. That the declaration is correct, in technical form; for, in
covenant, the breach may be assigned in as general words, as the
covenant. 6 Vin. 421. pl. 2. 9 Co. 60. Cro. J. 304. 6 Vin. 424. pl.
3. 2 Show. 460. Sir T. Raym. 14. Cro. J. 369. 2 Bac. Abr. 84. 6
Vin. Abr. 422. pl. 1. Hob. 12. 2 Bos. and Pull. 14. (in note) 3
Woodes. 92. 5 Bac. 58. 60. 2d. That the cases cited for the
defendant arose upon a covenant for quiet enjoyment, which cannot
be broken without an actual eviction; but a covenant of title, may
be broken without eviction, upon proof that the grantor had not an
estate in fee; and, in an action for the breach, it is neither
necessary to allege, nor to prove, an eviction. 3d. That the
declaration assigns the breach on the first covenant only; and as
oyer was never prayed, the second covenant is not even before the
court. 2 Saund. 228. 1 Saund. 233. 1 Lev. 88. 1 Saund. 9. 307. 1 T.
Rep. 149. 1 Stra. 227. Besides, the covenants, though they cannot
be regarded as one (which was the case in 2 Bos. and Pull. 13.) are
neither inconsistent, nor contradictory: the one being a covenant,
that the grantor has a good estate; the other being a covenant of
warranty; the latter is introduced into deeds by the scrivener, of
course; but the former is only inserted upon the agreement and
instruction of parties. A special covenant in fact, may restrain an
implied covenant; but here are two express covenants, which may
operate together; and each should be construed most strongly
against the grantor. 2 Keb. 10. 15. 1 Sid. 289. 1 Lev. 183. 1 Sid.
215. The chief justice, after stating the pleadings, and the
reasons assigned in arrest of judgment, delivered the opinion of
the court, in the following terms:
TILGHMAN, Chief Justice. As to the first point, although it was
opened by the defendant's counsel, yet, I think, in the course of
the argument, it was nearly abandoned. It certainly has not been
supported; for many cases have been produced, proving that it is
sufficient to assign the breach in terms as general as those in
which the covenant is expressed;2 and more than one
Page 4 U.S.
436, 439
of those cases, were upon the very same kind of covenants as the
one now in question. The second point, amounts, in substance, to
this, that the issues were altogether immaterial. It is an
undoubted principle, that verdicts, after a trial of the merits of
a cause, are, if possible, to be supported. For this reason, many
things are good after verdict, which would be bad, on demurrer.
Many things, not alleged in the pleadings, may be presumed to have
been proved on the trial; because, unless they had been proved, the
jury could not, properly, have given a verdict in the manner they
did. One of the authorities3 cited by the plaintiff's counsel, went
to the point; that, upon a breach assigned, that the defendant was
not seised of a good estate n fee, &c. to which the defendant
pleaded non infregit conventionem, and thereupon issue was joined,
the issue, though informal, was sufficient for the Court to enter
judgment on. Now, this is the very same issue as one of those
joined in this cause. But let us consider the other issue, joined
on the plea of performance, with leave, &c. This kind of plea
is peculiar to Pennsylvania, and is unknown in England. It was
invented to save the trouble of special pleading, and has been
sanctioned by too long a practice, to be now shaken. In fact, it
gives the defendant every advantage which he could derive from
special pleading, and saves all the labour and danger: for, upon
notice to the plaintiff, without form, he may give any thing in
evidence which he might have pleaded. A great number of issues, in
actions of covenant, have been joined precisely as this is; and if
this judgment may be arrested, on account of the immateriality of
the issue, all judgments founded on similar issues, are liable to
be reversed, on writs of error. In considering the present motion,
the Court know nothing but what appears on the record. Now, how can
they say, that an issue is immaterial, in which the defendant
might, for aught that appears, have given evidence of all those
special matters, on which the merits of his defence rested. The
defendant has contended, that it ought to have appeared, either in
the plea, or the replication, that the plaintiff had been evicted.
But, it is to be observed, that if the cases cited by him, are
examined, they will be found to be most, if not all, of them, on
covenants for quiet enjoyment, where the covenant was not broken
without an eviction by better title. But a covenant, that one is
seised of an indefeasible estate in fee, may be broken without an
eviction; and, in such case, the jury will give such damages as
they think proper. Upon the whole, I am clearly of opinion, that
this issue is not immaterial. I will now consider the defendant's
third point, which is, that it appears, by the record, that the
plaintiff has no cause of action.
Page 4 U.S.
436, 440
The defendant's argument is founded on this-that the plaintiff,
by making a profert of the deed, has brought its whole contents
before the Court; that part of its contents, is a clause of special
warranty, by which they say, the general covenant on which the
plaintiff has declared, is qualified and restrained; and, of
course, that the plaintiff has no cause of action, because the
defendant only warranted against himself, and those who should
claim under him. To this it has been answered, by the plaintiff's
counsel, and, I think, truly, that, oyer not having been prayed, no
part of the deed appears to the Court, but that which the plaintiff
has declared on; and, consequently, the Court can take no notice of
the special warranty. But I think it best to deliver my opinion on
the effect of the special warranty, that the defendant may not be
disquieted, by supposing that he had a good defence, which he has
lost the advantage of by a slip of his counsel. I subscribe to the
principle laid down by Lord Eldon, in the case of Browning v.
Wright,4 cited on the part of the defendant, that where it
manifestly appears, from a consideration of every part of the deed,
that no more than a special warranty was intended, it shall be so
construed, although the deed, in one part, contains words of
covenant of more general import. To this rule, I add the two
following ones: That, in construing a deed, no part shall be
rejected, unless it produces contradiction or absurdity; and that,
in doubtful cases, a deed is to be construed in favour of the
grantee. The deed in question contains a conveyance by the words
grant, bargain, and sell; a covenant that the grantor is seised of
a good estate in fee simple, subject to no incumbrances, but a
certain ground rent; and a covenant of special warranty.
It has been the prevailing opinion, tha by virtue of an act of
assembly, passed in the year 1715,5 the words 'grant, bargain and
sell,' have the force of a general warranty, unless restrained by
subsequent expressions. To qualify the general warranty, it has
been the custom of scriveners to insert a clause of special
warranty. And, I believe, it is inserted pretty much as a matter of
course, unless in cases where the parties agree on a general
warranty. I believe, too, that, in Pennsylvania, the greater part
of conveyances have, as Mr. Ingersoll has stated, been made with
special warranty. Still it remains to be considered, what was the
intent of the grantor in the present instance? The defendant
contends that his intent was, to give no more than a special
warranty, because the clause of special warranty is inconsistent
with, and contradictory to, a general warranty. Now, in this, I
cannot agree with him. It is certain that the special warranty, and
more, is included in the general one. It is an inaccurate mode of
conveyancing; but there is no absurdity or contradiction, in making
one covenant against yourself and your heirs, and another against
all
Page 4 U.S.
436, 441
mankind. The special warranty was unnecessary, and is to be
attributed to the ignorance of the scrivener, who, probably,
thought it was a matter of course, without intending to affect the
more general preceding covenant; or, perhaps, he might think it
necessary to guard against the effect of the words 'grant, bargain,
and 'sell,' used in the first part of the deed; because the estate
was subject to a ground rent, as appears from the general covenant,
in which it is said that the estate is free from all incumbrances,
except the said ground rent. It has been urged, that it is all one
covenant, because the special warranty is connected with the
preceding general covenant, by the words and that. It is very
common, to connect a covenant of warranty, and a covenant for
further assurance, by these expressions. But what I rely on, is the
intent of the parties, manifested in the deed considered
altogether. I do not conceive it is possible for a man of common
sense to declare, that he engages that he had a perfect estate in
fee simple, and had a good right to convey such perfect estate,
without intending to warrant to a greater extent, than against
himself and his heirs. There are no technical expressions, but such
as every man understands, which is not the case with a special
warranty. To a common man it is not very intelligible, that there
should ever be occasion to warrant and defend against himself, and
all persons claiming under him; for, it is very natural to suppose,
that when a man has used words sufficient to convey his estate to a
third person, he has necessarily done enough to bar himself and all
persons claiming under him, without calling in the aid of a special
warranty. In short, the insertion of the clause of special
warranty, is generally the act of scriveners; but I presume, that
no scrivener could be so stupid as to insert a covenant, that 'the
grantor was seised of an indefeasible estate in fee,' unless he had
been told by the parties, that a general warranty was intended. I
am, therefore, of opinion, that the special warranty in this deed,
has not the effect of controling the precedent general covenant,
and that judgment should be entered for the plaintiff.
It is proper to add, that after the conclusion of the argument
last night, I consulted with my brother Yeates, who concurs with my
opinion, both with respect to the pleadings and the construction of
the deed.
Footnotes
Footnote 1 At the trial of
the cause, a question of some importance occurred. The defendant
claimed under a sale by the commonw alth of the premises, as the
forfeited estate of Joseph Griswold, who, it was alleged, had been
attainted, by proclamation, during the revolutionary war. His
counsel, with a view to maintain the validity of his title, offered
to read the proclamation in evidence. The opposite counsel proved,
that the defendant had due notice of Hilton's ejectment; took part
in preparing evidence for
the trial; and had, in fact, acceded to a settlement, in
consequence of the eviction: And, they contended, therefore, that
the verdict in that ejectment was conclusive to establish a defect
of title. After argument, ( in which the plaintiff's counsel cited,
Cro. I. 304. Sid. 289. 2 Show. 460. 9 Co. 60. Bradshaw's case, and
the defendant's counsel cited, 1 Stra. 400. 2 Rol. Rep. 6. 28. 287.
8 T. Rep. 278.) the chief justice delivered the unanimous opinion
of the court:
TILGHMAN, Chief Justice. Some difficulty has occurred in
deciding this point; but the court have formed an unanimous
opinion, that the evidence offered by the defendant, to prove that
he had a good title to the land in question, is inadmissible. The
title has been already decided in an ejectment, the only mode in
which title to land can be directly decided; and of that
ejectment,
the defendant had full notice. If the defendant should now be
permitted to give his title in evidence; and the jury should find a
verdict in favour of it, the plaintiff's remedy, by action of
covenant on the deed, would be gone; and if his title should
ultimately fail, on the trial of another ejectment, to be brought
by him, he would lose both land and money. But, on the other hand,
if the plaintiff recovers in the present suit, it is in our power,
by imposing terms upon him, to do justice to the defendant. Indeed,
the plaintiff has made our interference unnecessary, by a voluntary
offer to execute a conveyance to the defendant of all his right,
upon receiving the damages awarded by the jury. He was not obliged
(as the defendant's counsel allege) to tender this conveyance,
before he brought the suit: it is sufficient if the conveyance is
executed, when the defendant pays the damages.
We do not decide, whether the defendant might have gone into
evidence of the title, if he had given notice to the plaintiff,
immediately after Hilton's recovery,
that he was dissatisfied with the verdict, and meant, at his own
expence, to prosecute an ejectment against Hilton, to try the
question a second time. But, so far from pursuing this course, the
defendant's conduct has shewn an acquiescence in the verdict and
judgment, which Hilton obtained.
Footnote 2 5 Bac.
Footnote 3 5 Bac. Pleas,
title, Immaterial and Informal Issues, p. 59, 60
Footnote 4 2 Bos. &
Pull. 14.
Footnote 5 1 St. Laws, 109.
s. 6.