3 Watts 60 | Pa. | 1834
The opinion of the Court was delivered by
Ten errors, in relation to matters of evidence and the charge of the court below, have been assigned in this court. Several of them having been waived in the argument here, I shall confine myself to such as the plaintiff in error has urged as material.
The main question is, whether the words of the articles of the 27th of September 1814, between Shrum, the plaintiff below, and Campbell the defendant, constitute a covenant on the part of Campbell to pay the arrears of purchase money and interest due by Shrum to Astley and Gibson, under the agreement made between them on the 2d of January 1805. By the agreement of the 27th of September 1814, Shrum agrees to grant and convey to Campbell, his heirs and assigns, the tract of land “under and subject to the payment of all the purchase money and interest now due on an article of agreement between Thomas Astley and James Gibson of the one part, and the said Henry [Shrum] of the other- part, dated the 2d of January 1805;” after which follows a covenant by Campbell to pay Shrum 341 dollars and 75 cents.
No particular form of words is necessary to constitute a covenant. Whatever shows the intent of the parties to bind themselves to a performance of the thing stipulated, may be deemed a covenant, without regard to the form of expression made use of. Express covenants may be created by words which at first view might appear to operate rather as conditions, qualifications, or defeasances of covenants. Thus an office was conveyed by the plaintiff to the defendant, provided that out of the profits he should pay the' plaintiff 500 pounds : it was held that the proviso was in nature of a covenant, and not by way of condition or defeasance, and covenant would lie. Clapham v. Moyle, 3 Salk. 108; 1 Lev. 155. So where a lease was made to B for life, with a proviso that if the lessee should die within the term of forty years, the executors of the lessee should have it for so many of the years as should amount to the number of forty to be computed from the date of the lease: this proviso was held only to amount to a covenant. Parker v. Gravener, 2 Dy. 150; And. 19; 1 Co. 155, a. A case more nearly resembling the present, is the following. A leased to B, for years, on condition that he should acquit the lessor of ordinary -and extraordinary charges, and should
It is contended that Shrum disabled himself from conveying a title to Campbell, in compliance with the agreement in 1814, by giving a mortgage to Astley in 1821, on receiving from him a deed for the premises. The answer of the court below, which seems a satisfactory one, was, that this created no new lien; though different in form, it is substantially the same with the lien in favour of Astley and Gibson, under the articles of agreement of January 1805, transferred to Campbell and accepted by him, and which he covenanted to discharge. Under these articles Astley and Gibson, not having parted with the legal title, had a lien for the arrears of the purchase money affecting the land in the hands of Shrum, and in the hands of Campbell his assignee. It is said now, on the argument here, that the mortgage was given for more than was due on the articles. This is a matter of fact which we cannot now inquire into. If true, and it would have varied the* principle of law, the the court below should have been requested to charge upon it. We can only examine the charge as it appears on the record, and the sum appears to be considered the same under the articles and under the mortgage.
As to the defendant’s right to rescind the contract in the year 1827,1 do not perceive the slightest foundation for it. He went into possession of the land and held it till that period; paid the 341 dollars
Exception was taken to the deposition of J. B. Wallace, Esq. on the ground of the insufficiency of the service of the notice. The thirty-eighth rule of the court of common pleas of Alleghany county, requires notice to be served by being read and delivered to the party, or, in his absence, to some of his family at his dwellinghouse. The evidence was, that the witness served the rule on defendant’s son, and left him a copy of the rule: that he declined hearing it read and showed him where his father was working in the field. On this proof it is doubtful whether the son was at the dwellinghouse: but by reference to the notes of the evidence below, by consent, it appears he was. The service was therefore good.
Judgment affirmed.
See Burnett v. Lynch, 5 Barn, & Cres. 602; Platt on Cov. 15; Law Lib. 7.