92 Va. 216 | Va. | 1895
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.”
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
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
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,
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
For these reasons we are of opinion that the decree of the Circuit Court should he reversed.
Reversed.