Allemong v. Gray's, 92 Va. 216

Allemong v. Gray's

92 Va. 216 | Va. | 1895

Keith, P.,

delivered the opinion of the court.

The controversy in this case arises upon the construction of the covenant in the deed from Allemong and wife and Gervis F. Mayers to Joseph D. Price and Philip Phares, which covenant is in the following words :

“ John W. F. Allemong and wife and Gervis F. Mayers covenant that they will warrant specially the land hereby conveyed ; that they have the right to convey the said land to the said grantees ; that the said grantees shall have quiet possession thereof, free from all encumbrances; that they shall execute such further assurances of said land as may be requisite, and that they have done no act to encumber the same.”

*220The effect of the language here quoted is to he gathered •from a careful examination of the whole deed. As was said in Whallon v. Kaufman, 19 John., at page 100, “ the cardinal point is, what was the intention of the parties, as derived from the deed itself. "When that is discovered, it ought to be carried into effect, if it can be done consistently with the rules of law. If the words and provisions are doiibtful, they are to be taken most strongly against the grantor. If they are susceptible of different' constructions, the court may take into consideration the circumstances attending the transaction, the situation of the parties, and the state of the thing granted at the time of making the grant, for the purpose of ascertaining the probable intent.”

In Sugden on Yendors, page 606, it is said that “where restrictive words are inserted in the first of several covenants, having the same object in view, they will be construed as extending to all the covenants, although they are distinct.” To the same effect, see Bawle on Covenants for Title, sec. 288.

In one of the earliest cases on this subject, that of Broughton v. Conway, reported in 2 Dyer 240», the covenant was, “ that the covenantor has done no act to impeach, but that the assignee may quietly enjoy, without let of him or of any other person.” It was held that the words “ but that ” have relation to the covenant that he “has done no act,” and extends it only to acts done by the defendant himself.

In Browning v. Wright, 2 Bosanquet & Puller 13, which is the leading case of one covenant being restrained by another, A, after granting certain premises in fee to B, and after warranting the same against himself and heirs, covenanted “ that, notwithstanding any act done by him to the contrary, he was seised of the premises in fee, and that he had full power to convey the same.” He then covenanted for himself, heirs, &c., that B should quietly enjoy, without interruption from himself, or any other person claiming under *221him; and, lastly, that he, his heirs, and all persons claiming under him, should make further assurances. It was held that the intervening general words “ full power to convey ” were either part of the preceding special covenant, or, if not, that they were qualified by all the other special covenants against the acts of himself and heirs.

Lord Eldon, after stating that the words of the covenant are to he taken most strongly against the covenantor, but that the intention of the parties, as collected from the whole context of the instrument, must prevail, says: “ My opinion, upon considering the whole deed, is that the covenant is a special one. What would be the use of any of the other covenants if this were general? It would be of little service to the grantor to insist that the warranty, and the covenant for quiet enjoyment, and further assurances, were specially confined to himself and heirs, if the grantee were at liberty to say I cannot sue on these covenants, but I have a cause of action arising upon a general covenant which supersedes them all. It appears to me, from the words and context of the deed, that, in such a case, we should be driven to say that the grantor intended at the same time to give a limited and unlimited warranty.”

The case of Howell v. Richards, 11 East 633, is sometimes referred to as establishing propositions at variance with the case of Browning v. Wright. A careful consideration, however, of these two cases will show that no such antagonism exists between them. The courts, guided by the cardinal rule of construction which requires them to seek for the true intent and meaning of the parties in the several instruments under consideration, found in the one case that the covenantor intended that the restrictive words should apply to and control the measure of his liability upon all; and in the other case that the intent of the covenantor was to restrict his responsibility upon one covenant, and to assume a liability *222without restriction upon the other. In Howell v. Richards, the releasors “ covenanted that, for and notwithstanding any act by them, or any or either of them, done to the contrary; they had good title to convey in fee.; and that they, or some one of them, for and notwithstanding any such matter or thing aforesaid, had good right and full power to grant, &c.; and, likewise, that the releasee should peaceably and quietly enter, hold, and enjoy the premises granted, without the lawful let or disturbance of the releasors, or their heirs or assigns, or for or by any other person or persons whatsoever ; and that the releasee should he kept harmless and indemnified by the releasors and their heirs against all other titles, charges, &c., save and except the chief rent issuing and payable out of the premises to the lord of the fee.” It was held that the generality of the covenant for quiet enjoyment against the releasors and their heirs, or any other person or persons whatsoever, was not restrained by the qualified covenants for good title and the right to convey. In that case not only do the covenants stand separate and distinct the one from the other, but the covenantor, after covenanting against himself and his heirs, expressly extends the operation of the covenant to any other person or persons whatsoever; and, as though to place his intention beyond all doubt, saves and excepts his liability as to the chief rent issuing and payable out of the premises to the lord of the fee.

The only case in the Virginia Reports to which we have been referred as bearing upon this question is that of Dickinson v. Hoomes’s Adm'r, 8 Gratt. 353. The decision there was that the limited covenant did not operate to restrain the subsequent unlimited covenant. The reasoning of the majority of the court is not given, and therefore the decision sheds very little light upon the subject under investigation.

In Nind v. Marshall, 5 Eng. Com. Law 95, one of the covenants was against “all persons whatsoever.” Dallas, *223Chief Justice, said : “ I think ‘ all persons whatsoever ’ must be construed to mean persons of the description in the other covenants, that is, persons claiming under the covenantor; and that they are in the nature of sweeping and comprehensive words, introduced to "give the largest effect to the special words.”

We do not deem it necessary to refer to other decided cases. In the references already given to Sugden and Rawle will be found a collation and discussion of all the authorities touching upon this point. It will be observed that in the covenant under consideration all the covenants are embraced in one sentence; that the name of the covenantors are only once introduced; that the parts of the sentence are separated only by semi-colons; and that the covenants, save the first one, are in themselves incomplete unless reference be had to it, and the word “ that,” which introduces each of the covenants, necessarily has reference and relation to the first or principal covenant.

As was said in Browning v. Wright, if the covenantors, having given a special covenant of warranty, have in the next breath bound themselves without limitation, we should be driven to say that the grantors intended at the same time, and in the same sentence, to give a limited and an unlimited warranty. With us, the covenant of warranty is considered the principal one in conveyances, and has in practice taken the place, and almost superseded the use, of all others. It is “the sweeping covenant.” See Rawle on Covenants for Title, section 91.

It would be strange indeed that the grantor should carefully guard and limit his liability upon this, the most important of all his covenants, and leave himself open to an unlimited liability upon other covenants occurring) not only in the same clause, but in the same sentence—a sentence whose several parts are so connected as to lead irresistibly to *224the conclusion, that they are all to be considered and construed together. We are not unmindful of the rule of construction which requires that language shall be taken most strongly against him who uses it, but it is said, with respect to the subject under investigation, that this rule “ is seldom or never applied except where the intention of the covenantor evidently harmonizes with the rule, and its application is therefore useless” (Eawle on Covenants, 5th ed., note to page 484) ; the primary duty being to ascertain the intention of the parties from the language used. The best consideration we have been able to give it, leads us to the conclusion that the intention of the covenantors, in the language used by them, was that the limitation upon the covenant of warranty should be applied so as to restrict the operation of those covenants which succeeded it.

For these reasons we are of opinion that the decree of the Circuit Court should he reversed.

Reversed.