9 N.H. 219 | Superior Court of New Hampshire | 1838
The lease in this case contains no covenant, in terms, that the defendant had good right and title
It seems to have been long settled, that in conveyances in fee simple, containing the. words give, grant, &c., a covenant of warranty is implied in the word ‘give.’ Perkins, sec. 124 : Co. Litt. 384, a, vote 332 : 4 Coke 80, Noke's case ; Shep. Touch. 184; 2 Caines 188, Frost vs. Raymond; and that in a lease, the term ‘ demise’ imports a covenant on the part of the lessor of good right and title to make the lease, and for quiet enjoyment. 4 Co. 80 ; Hobart 12, a, Holden vs. Taylor, and note; 1 Saund. 332, n, 2; Cro. Jac. 73, Style vs. Hearing; Com. Dig., Covenant, A, 4 ; 4 Taunt. 329, Merrill vs. Frame; 6 Bing. 656, Adams vs. Gibney ; 8 Cowen 36, Grannis vs. Clark.
These authorities seem to stand uncontradicted, and no ground suggests itself to us upon which we can overrule them.
It may be that instances exist, in which grants and leases are made where the party is not in fact aware that such covenants were ever supposed to be attached to these terms, and in which he may thus be held to have undertaken beyond the scope of what he actually intended; but if this is so, it will be from his folly, or misfortune, in undertaking to give or demise beyond his title, without restricting his liability by the other language of the deed.
In general, this rule can impose no hardship, because it is also well settled that these general, implied covenants are qualified and restrained by any express covenants of a more limited character.
Such covenants are inconsistent with the idea of a general, absolute covenant, extending beyond them, and importing more than they express—and are, therefore, very properly held to modify and restrain any implication from the general terms of the grant. Upon this the authorities seem to be uniform, both in relation to deeds and leases. 4 Coke 80 ;
And general express covenants have been held to be restrained by other express covenants. 1 Brod. & Bing. 319, Nind vs. Marshall; 11 East 633, Howell vs. Richards; 15 East 530, Barton vs. Fitzgerald; 13 Bos. & Pul. 13; 8 Mass. 202. The parties having entered into express agreements, it cannot be supposed that they intended, by any general language of the deed, any thing inconsistent with those express covenants, or which might otherwise have implied an undertaking of a more enlarged character.
The principle of these authorities has not been controverted in the argument; but a distinction has been attempted to be made between different classes of covenants, so that express covenants relating to possession may not be held to restrain implied covenants relating to title.
This distinction, however, seems not to be sustained by authority, and is inconsistent with the principle upon which the decisions have been based.
Express covenants relating to possession may furnish quite as strong reasons against implying a covenant of title from the general language of the deed, as express covenants relating to the title itself.
There could be no reason for a covenant that the party would not himself, nor should any person claiming under him, interrupt the possession of the lessee, if he had in a prior part of the deed covenanted that he had good title to make the lease, and that the lessee might quietly enjoy it against all persons—and the case in Coke shows that a covenant of this character has been held to be restrictive.
The next question is, whether there is any express covenant in this lease, which restrains and qualifies the covenant
And here it is not denied, that the covenant that Fowle, and his successor in office, shall and will permit the lessee, and his heirs and assigns, quietly to enjoy the premises during the term, would be wholly unnecessary, if he had before covenanted that he had good title to make the lease—and that it is a covenant imposing a less obligation upon the lessor. It is of the same character, although somewhat more restricted in its operation, as that in the case in Coke. It must, therefore, be held to express the contract which these parties actually entered into, and to restrain any covenant which might otherwise be implied from the term ‘ demise’, in the lease.
Judgment for the defendant.
