1799.

BROWNING

V.

WRIGHT. [14]

to convey or assure the said piece or parcel of arable land or any part thereof to the said Plaintiff his heirs and assigns in manner * aforesaid or in any manner whatsoever (a): by reason whereof afterwards and after the making of the said indenture and the death of the said J. Wright, to wit on, &c. one Edward Child and Mary his wife then being and claiming to be lawfully and rightfully seised of and in the said piece or parcel of arable land with the appurtenances in their demesne as of fee in right of the said Mary, and having a lawful right of entry into the same in right of the said Mary by a lawful (6) and rightful title not derived by from under or by means of the said indenture or by from or under the said Plaintiff, required the said Plaintiff to deliver up the possession of the said piece or parcel of arable land to them the said Edward and Mary, or to become tenants thereof to and to hold the same of the said Edward and Mary at and under a certain yearly rent, to wit the yearly rent of thirteen pounds to be therefore paid by the said Plaintiff, and would then

(a) As the Plaintiff in this case meant to rely on the covenant by J. Wright that he had good right, full power, and lawful authority to convey, it seems that after negativing the Defendant's title to convey he need not have proceeded to state an eviction; for, on a general covenant, the breach may be as general as the covenant. Bradshaw's case, 9 Co. 60. b. Co. Ent. 117. a. Cro. Jac. 304. S. C. Muscot v. Ballett, Cro. Jac. 369. Glinester v. Audley, Sir T. Raymond, 14. Woolon v. Hele, 1 Mod. 292. agreed, Per Cur. Holder v. Taylor, Hob. 12. Indeed, it may be questionable whether the averment, that E. Child and Mary his wife claimed to be lawfully seised of the premises, and required the Plaintiff to deliver up possession or to become tenant to them, and that unless he had accordingly become their tenant, he would have been evicted, and that he did become their tenant, without shewing any entry by E. Child and his wife, or any actual disturbance by them to authorize him in so doing, can be said to be such an averment of eviction as the law requires in cases where any averment of this kind is necessary. In Foster v. Pierson, 4 Term Rep. 620. n. (a) it was admitted that the eviction need not be alleged to have been by legal process; but some eviction must be shewn; for Shepherd's Touchstone, c. 7. p. 170. speaking of a covenant for quiet enjoyment, and disturbances lawful and unlawful, says, "and in all cases where any person hath title, the

covenant is not broken until some entry or other actual disturbance be made by him upon his title." So in Hunt v. Cope, Coup. 243. where the Plaintiff, to an avowry for rent, pleaded certain acts of the lessor,

whereby he was deprived of the use of "the premises," without averring eviction, Lord Mansfield said, that the lessee certainly should have pleaded eviction, and the facts stated might have been sufficient for the jury to have found a verdict in his favour; and the plea was held ill.

(b) The cases of Foster v. Pierson, 4 Term Rep.617. and Hodgson v. The East India Company, 8 Term Rep. 278. have now completely settled that an allegation of "lawful title" is sufficient, without setting out that title. But the Plaintiff must shew in some manner that the title of the person entering upon him is not derived from himself; and a mere averment that he had "lawful title," without this qualification, would be bad after verdict. Kirby v. Hansaker, Cro. Jac. 315. Wooten v. Hele, 2 Saund. 177. 1 Lev. 801. 1 Sid. 466. 1 Mod. 290. S. C. Jenkins, S40. may be done however by averring generally, that the person evicting had lawful title before the date of the grant to the Plaintiff. Skinner v. Kilbys, I Shower 70. Proctor v. Newton, 2 Lev. 37. Buckby v. Williams, 3 Lev. 325. Jordan v. Twells, Cas. temp. Hardw. 172. per Ld. Hardwicke, and this mode was adopted in Foster v. Pierson.

This

and

and there, unless the said Plaintiff had so delivered up the possession thereof or become such tenant of and so held the same, have ejected, evicted, expelled, put out and amoved the said Plaintiff from and out of the possession thereof, whereupon the said Plaintiff to prevent his being obliged so to deliver up the possession thereof or being so ejected, evicted, expelled, put out and amoved, then and there was forced to and did become such tenant thereof to and so held the same of the said Edward and Mary, whereby", &c. alleging the Plaintiff's loss in being deprived of his fee-simple, and being obliged to hold as tenant; his having laid out money on the premises previous to his knowledge of the badness of J. Wright's title, and his having paid a large sum to E. Child and Mary his wife for the mesne profits.

The Defendants prayed oyer of the indenture, and it was read to them in these words, io wit, "This indenture made, &c. witnesseth, that the said J. Wright, for and in consideration of the sum of 180%. of lawful money of Great Britain, to him in hand paid by the said Plaintiff, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, enfeoffed, and confirmed, and by these presents doth fully, clearly, and absolutely grant, bargain, sell, enfeoff, and confirm unto the said Plaintiff and to his heirs and assigns, all that piece or parcel of arable land (describing it) with the appurtenances and the reversion and reversions, remainder and remainders, rents, issues, yearly, and other profits of the said premises, and every part and parcel thereof; and all the estate and estates, right, title, interest, use, trust, claim and demand whatsoever, in law or equity, of him the said J. Wright, of, in, to, or out of the said premises, every or any part or parcel thereof; To have and to hold the said piece or parcel of arable land, hereby granted, bargained, sold, enfeoffed, and confirmed, or mentioned, or intended so to be, and every part and parcel thereof, unto the said Plaintiff, his heirs, and assigns for ever, to and for the only proper use and behoof of the said Plaintiff, his heirs and assigns, absolutely and for ever, without any condition, redemption, trust, or revocation whatsoever, and to and for no other use or uses, intents, trusts, or purposes whatsoever; and the said J. Wright and his heirs, the aforesaid piece or parcel of arable land, hereby granted or mentioned, or intended to be hereby granted unto the said Plaintiff, or his heirs, against him the said J.

Wright,

1799.

BROWNING

v.

WRIGHT.

Wright, and his heirs, shall and will warrant and for ever defend by these presents. And the said J. Wright for himself, his heirs, executors, and administrators, doth covenant and agree to and with the said Plaintiff, his heirs and assigns in manner and form following, that is to say, that he the said J. Wright for and notwithstanding any thing by him done to the contrary is lawfully and absolutely seised of the said piece or parcel of arable land hereby granted, of a good, sure, perfect, lawful, absolute, and indefeasible estate in fee-simple, without any manner of condition, limitation, use, or trust, or any other restraint, matter, or thing whatsoever, to alter, change, charge, defeat or determine the same; And that he hath good right, full power, and lawful and absolute authority to convey and assure the same to the said Plaintiff, his heirs and assigns, in manner aforesaid: and the said J. Wright for himself, his heirs, executors, or administrators, doth further covenant and agree to and with the said Plaintiff, his heirs and assigns, that he the said J. Wright shall and will, as soon as convenient, set out, at the expence of the said Plaintiff, a cart-way to the said piece or parcel of arable land, through another field in the possession of William Triggs; which cart-way, when set out, the said J. Wright and his tenants are to have a free passage to and from the farm belonging to the said J. Wright, now in the occupation of the said William Triggs, without allowing any thing for the same; And that he, the said Plaintiff, his heirs and assigns, shall and lawfully may, at all times hereafter, peaceably and quietly hold and enjoy the said piece or parcel of arable land hereby granted, and receive the rents and profits thereof to his and their own use and uses, without any manner of let or interruption of the said J. Wright, or any other person or persons claiming under him: And, lastly, that he the said J. Wright, his heirs and assigns, and all other persons claiming, or to claim any estate or interest of, in or to the said premises, or any part thereof, by, from, or under him, shall, and will from time to time, and at all times hereafter, make, suffer, and execute, or cause to be suffered and executed, all and every such further and other lawful and reasonable act and acts, assurance and conveyances in the law whatsoever, for the better and more perfect assuring and confirming of the said piece or parcel of arable land, unto the said Plaintiff, his heirs and assigns, as by his or their Counsel learned in the law of this realm, shall be reasonably devised, advised, or required. In witness

whereof

whereof the said parties to these presents have hereunto set their hands and seals the day and year first above-written."

The Defendants then demurred, and assigned for causes, "that the said indenture here brought into Court and in the said declaration mentioned doth not contain any covenant or warranty of title to or of right power or authority to convey or assure the said premises in the said declaration mentioned or any part thereof or for the enjoyment of the same by the said Plaintiff or his heirs other than against the said J. Wright deceased and his heirs or other persons claiming under him. And for that the said Plaintiff hath not in the said declaration alleged or shewn any defect of title to the said premises or any part thereof arising from or by reason of any thing done by the said J. Wright or his heirs or any person or persons claiming under him, or any eviction, interruption, molestation or disturbance done committed or occasioned by the said J. Wright or his heirs or any person or persons claiming under the said J. Wright. And also for that the said declaration is in other respects defective and insufficient."

Joinder in demurrer.

Williams, Serjt. in support of the demurrer. The great question in this case is, Whether the covenant on which the breach is assigned ought or ought not to be confined to the acts of James Wright and his heirs? We contend, that eviction by a stranger is no breach of the covenant. In construing this covenant the Court will collect the intention of the parties, not merely from the words of the covenant itself, but by contrasting it with the other parts of the indenture: and it was with the view of enabling the Court to do this that the Defendant prayed oyer. The intention of the parties appears to have been, that the words "notwithstanding any act by him done to the contrary" in the first covenant should qualify and restrain the second covenant. When the grantor has in the first clause only covenanted that he was seised in fee notwithstanding his own acts, it would be a very strained construction to hold that he intended in the next clause to covenant that he had a right to convey, notwithstanding the acts of all the world. The covenant for title, and the covenant for a right to convey, are synonymous covenants, and must receive the same construction. The meaning of the covenant in question is further explained by the warranty, and by the covenant for quiet enjoyment; the former being only a qualified warranty against himself and his heirs; and the latter a special covenant that the

VOL. II.

grantee

1799.

BROWNING

V.

WRIGHT.

1799.

BROWNING

v.

WRIGHT.

grantee shall enjoy without interruption from him or any person claiming under him. It is not an unusual thing for the Court, in construing covenants, to put a sense upon them which is against the words, provided it be warranted by the apparent intention of the parties. Thus in the Earl of Clanrickard's case, Hob. 273. a covenant for further assurance of an estate was restrained to a third part. In Broughton v. Conway, Moore, 58. a condition that the vendor would not do, nor had done any act to disturb the vendee, but that the vendee should hold and enjoy without the disturbance of the vendor or any other person, was held to be confined to acts done by the vendor, on the ground of the latter words being referable to the former. So in an action on a covenant" that lands were of the value of 1000%. per annum, and should so continue notwithstanding any act done or to be done by the covenantor," the covenant was construed by the restrictive words in the second member of the sen tence, and though the lands were not worth 1000l. per annum at the time of the covenant made, yet as no act was shewn to have been done by the covenantor to make them worthless, the breach was held ill. Rich v. Rich, Cro. Eliz. 43. Still stronger, however, is the case of Nervin v. Munns, 3 Lev. 46. There were four covenants: the first for seisin in fee; the second for right to convey; the third against incumbrances, and the fourth for quiet enjoyment. The first, third, and fourth, were expressly restrained to the acts of the grantor, his father, and grandfather, and the second was unlimited. The whole Court agreed that the covenants were distinct and several, and three Justices, in opposition to North, Ch. J., held that the first and second covenants, though distinct were sinonymous; and therefore, as the grantor had first covenanted against his own acts, it could not be intended that he should immediately afterwards, in a covenant to the same effect, covenant against all the world. And they also took a distinction which will afford an answer to all the cases which may be cited on the other side, as well as to Crayford v. Crayford, Cro. Car. 106. and Hughes v. Bennett, Cro. Car. 495. Sir William Jones, 403. relied on by North, Ch. J., namely, that in those cases the covenants were of divers natures, and concerned different things, although relating to the same land.

Shepherd, Serjt. contrà. The argument of the other side amounts to this, that as some of the covenants in this deed are of a special nature, the Court must borrow the restrictions introduced into them, and engraft them on the general covenant.

But