16 Ill. 487 | Ill. | 1855
The question raised upon this demurrer looks very much like one of fact instead of law, and that is, whether the covenant is joint or several. We must, however, determine, as a matter of law, who are the parties, what is the covenant, and to whom and how made.
It is contended that it is several, because it conveys several and distinct interests to different and distinct persons, in different rights, though undivided, and it is illustrated by a case of distinct deeds for these undivided moieties. It would seem to me, that the argument is more specious than solid, and that the illustration proves the reverse of the position. Had lie entered into separate covenants, there can be no question of the position, and this might have been done for undivided moieties, or other proportions. But, instead of doing so, he covenanted with all that they should hold undivided moieties; Buckner, as trustee of Mrs. Strother, one-half, and the Eddys the other. The interests'are pot'divided; they are only apportioned by the cove-pant, but the covenant itself is joint. The1 construction that it is several, because "the proportions of each are specified, would make' all covenants, promises, etc., several, however the wording might be, for I can see no difference between the statement of the fact on the face of the agreement, and its existence without. It can make no sort of difference that Buckner did not take the interest in Ms own right. The legal right is in Mm, and Hamiltón cannot object to his suing because he holds to the use of another. That may be all laid out of view, as for any purpose of construing the meaning of the party, as to whom he bound himself. I really can see nothing in the form or substance of the covenant that could raise any doubt of its being a joint one, save the designation of the respective interests, and this fails to present such an intention of the parties to my mind. Suppose the covenant had been to two, and was silent as to the proportion of interest in each, and yet the law would give them moieties, still, it would seem to me, no one could doubt that the covenant was joint. Suppose the covenant expressed the proportions, could that alter it ? It would seem to me not, and if not, I cannot perceive how a similar undertaking to these can have that effect, whether their respective interests be expressed or not, or whether equal or disproportionate when expressed. So, then, if the covenant be joint, suit must be-made by those having the legal interests, and joint or several as they hold it. Pigott v. Thompson, 3 Bos. and Pul. 148, and note a; Kingdon, executrix, v. Nottle, 1 Maul, and Selw. R. 355; Anderson, administrator, v. Martindale, 1 East R. 497; Berkeley v. Hardy, 11 Eng. C. L. R. 495, top; Southampton et al. v. Brown, 13 Eng. C. L. R. 303 ; 1 Chit. Pl. 2, et seq.
Judgment reversed and cause remanded.
Judgment reversed.
