Finley v. Simpson
22 N.J.L. 311
N.J.
1850
Check Treatment
The Chief Justice

delivered the opinion of the court.

The general principle, that an action of covenant can only he sustained where the instrument upon which the action is brought has been actually signed and sealed by the party, or by his authority, is abundantly sustained by the authorities cited by the counsel of the defendant. There are, however, exceptions, of which actions upon the custom of London, actions against the king’s lessee by patent, and against remainder men, are admitted instances.

The only inquiry is, whether an indenture of bargain and sale, purporting to be inter partes, by which an estate is conveyed to the grantee, if the grantee accept the deed, and the estate therein conveyed, though the indenture be not sealed and delivered by him, is not his deed, as well as the deed of the grantor.

The affirmative of the proposition is sustained by the following authorities, cited, with many others, in the brief of the plaintiff’s counsel: Co. Lit. 231, a, 230, C, note 1 ; Sheppard’s Touch. 177; 4 Cruise Dig. 393, “Deed,” Tit. 32, c. 25, § 4; 3 Corn. Dig., “Covenant,” A 1, “Fait,” A 2, C 2; Vin. A. C. “ Condition,” I, a 2 ; Burnett v. Lynch, 5 Barn. & Cress. 589; Dyer 13, C. pl. 66.

A modern elementary writer, of high reputation, denies the doctrine deduced from these cases, and insists that the action of covenant, unless it be founded on the custom of London, or on a contract between the king and a subject, can ever be supported against a person who by himself, or some other person acting on his behalf, has executed a deed under seal. Platt on Covenants 18.

He admits, however, that the contrary doctrine has been received without scruple by the profession, has been adopted by writers distinguished for their legal attainments, and that, perhaps, it has been too long established to be now reversed. There is, in our judgment, no reason why the doctrine should be reversed.

*332In the present case the verdict ought not to be disturbed, if it can be sustained consistently with legal principle. It is manifestly in accordance with the truth and justice of the case. The objection goes to the form, of the remedy, rather than to the substantial right of the party, or to the title of the plaintiff to redress. The nature of the covenant, moreover, is fully stated upon the face of the declaration. Whether the facts there stated did or did not constitute a covenant on the part of the defendant, was a question of law, which might well have been raised by demurrer. To give the defendant the benefit of the exception now may operate utterly to defeat the claim of the plaintiff It is consistent neither with law nor justice that the defendant should hold the title without paying the price. These considerations cannot affect the legal principle,, but if the verdict be in accordance with a doctrine long established, and often recognised, they afford strong reasons why that doctrine should not lightly be disturbed.

The rule to show cause must be discharged.

Cited in Patten v. Heustis, 2 Dutch. 296; Earle v. New Brunswick, 9 Vr. 52; Harrison v. Preeland, Id. 367; Klapworth v. Dressler, 2 Beas. 63; Hauler’s Ex. v. Atwood, 11 C. E. Gr. 505; Crowell v. Hospital of St. Barnabas, 12 C. E. Gr. 652.