Lovering v. Lovering, 13 N.H. 513

Lovering v. Lovering

13 N.H. 513 | Superior Court of New Hampshire | 1843

Gilchrist, J.

The first inquiry in this case of course is, whether there are in the lease any such covenants as those which in the declaration the defendant is alleged to have broken.

The instrument “lets and leases” to the plaintiff two acres of land, as much firewood as she wants from a certain *518hundred acres of land, and oxen to haul it, and do all her other ox-work, and <! the premises above described” are to be “held according to the true intent and meaning as before written,” “ without the least hindrance,” &c. These are all the expressions in the lease which it is necessary to examine in order to determine this question.

Covenants have been divided into express and implied covenants, and the latter depend for their existence upon the intendment and construction of law. There are some words which of themselves do not import an express covenant, yet being made use of in certain contracts have a similar operation, and are called covenants in law, or implied covenants. Bac. Abr., Covenant, (B.) They are implied by the law, from the use of certain words having a known legal operation in the creation of an estate. All covenants between lessor and lessee are either covenants in law, or express covenants. Vaughan’s Reports 118; Co. Litt. 139, b. Illustrations of this class are to be found in the effect of the words grant, demise, &c., from which the law implies a covenant that the lessee shall hold and enjoy the term against all lawful incumbrances. Spencer’s Case, 5 Co. 17a; 18 a; Clarke vs. Samson, 1 Vesey 100; Andrew’s Case, Cro. Eliz. 214; Merrill vs. Frame, 4 Taunt. 609; Shep. Touch. 160; Com. Dig., Covenant, (A 4.) But no case is to be found where the words “ let and lease” imply a covenant. The case cited by the counsel for the plaintiff from 1 Esp. 327, is Andrew’s Case, Cro. Eliz. 214, where the words of the lease were “ concessi et ad jirmam tradidi.” The implied covenant in that case depended not upon the words ad jirmam tradidi, but on the word concessi.

There is, then, in the lease no implied covenant, or covenant in law, and the question arises whether there be any express covenant.

No particular form of words is necessary to the creation of a covenant, but any words will be sufficient which show the intention of the parties. Cruise’s Dig., Title Deed, *519ch. 25, §, 5. Any words in a deed which show an intention to do any thing, make a covenant. Com. Dig., Covenant, {A 2:) Randall vs. Lynch, 12 East 179. It is defined to be an agreement by deed in writing, sealed and delivered. Shep. Touch. 160. And being parts of a deed, covenants are subject to the general rules established for the construction of deeds. They are to be taken most strongly against the covenantor, and according to the intent of the parties, and are to be construed ut res magis valeat, quam pereat. Shep. T. 166. Now, where the covenant does not flow as a legal consequence from the use of certain words, it is not an implied covenant. We must, then, inquire what is the meaning of the language used, and the ease or difficulty of doing this will be in proportion to the clearness or obscurity of the expressions. But as soon as the meaning of the parties is ascertained, it is immaterial what were the difficulties which stood in the way of determining it. The operation of the covenant is the same, whether the language be precise and express, or whether it be matter of inference and construction. If the parties agreed to do or not to do a certain thing, the agreement is an express covenant, whether they have used the word covenant, or other words from which their meaning is to be inferred. It is not the less an express covenant, because the meaning is obscurely expressed, and therefore discovered with difficulty.

Among the numerous cases to be found in the books showing the manner in which the language of the parties has been construed so as to constitute a covenant, is that of Pordage vs. Cole, 1 Saund. 319. It was there agreed between A and B, that B should pay A a sum of money for his lands on a particular day, and it was held that these words amounted to a covenant by A to convey the land. In Randall vs. Lynch, 12 East 179, it was held that if parties agreed that it should be lawful for one to hold the other’s property for a certain time, that would, emphatically, be a covenant that he should not detain it for a longer time. A *520covenant by a lessee that he would at all times and seasons of burning lime, supply the lessor with lime at a stipulated price, was held to be a covenant that he would burn lime at all such seasons. Shrewsbury vs. Gould, 2 B. & A. 487. A covenant in a lease that the tenant will fold his flock which he shall keep, &c., is binding on him to keep a flock and fold it on the premises. Webb vs. Plumer, 2 B. & A. 746.

What, then, is “ the true intent and meaning” of this contract ?

The defendant lets and leases to the plaintiff as much firewood as she wants, to be taken from a certain piece of land, and she is to hold “ the premises” without hindrance, and this is done by an instrument under seal. What was the intention of the parties is very obvious. It is as plain that the defendant agreed that the plaintiff should have from the hundred acres as much firewood as she should desire, as if these expressions had been used. It is equally clear that he has agreed to provide her with oxen to haul her firewood, and do all her other ox-work. It is true that he lets and leases the firewood, and lets and leases the oxen, and that he has not used the best and most appropriate language to express his meaning. A person of more education would probably have used different and better terms than these. But it is a question of intent and meaning, and not of style, which we are to determine. And the meaning we think so plain, that discussing the language and weighing it further would tend as much to obscure as to illustrate it. Here is, then, an express covenant that the plaintiff should have as much firewood as she should desire from these hundred acres, and that he would provide her with oxen to haul it.

There is sufficient evidence that both the covenants were broken.. The defendant cut off the wood, so that there was not enough left to supply one fire, and the plaintiff was obliged to procure fuel from her own land. And on various occasions she could not procure the defendant’s oxen when she applied for them, and was forced to hire others. The de*521fendant had disabled himself from performing his covenant if a lessor do any act which destroys or defeats the effect of his grant, covenant will lie against him. Com. Dig., Covenant, (A. 4.) So if he act contrary to the intent of the covenant. Ibid., Covenant, (E.) If he have disabled himself to perform his covenant, such conduct will be a breach. Com. Dig., Condition, (M 2.) In Seddon vs. Senate, 13 East 63, the defendant assigned by deed all his interest in the making and vending of a certain medicine, to the plaintiff, and afterwards disturbed him in the enjoyment of it, by making and selling it on bis own account, and it was held that this was in breach of his covenant.

The auditor was undoubtedly right in refusing to permit the defendant to testify. If it should appear that injustice-had probably been done by admitting one of the parties to testify, the court might set aside the report, or recommit it,, as the case might require. Fuller vs. Little, 7 N. H. Rep. 539. The testimony of the party is admissible in the discretion of the auditor. Mann vs. Locke, 11 N. H. Rep. 248. The exercise of this discretion is of course subject to-the supervision of the court. In this case, the plaintiff was> ill, and unable to he examined, and the parties would not have stood on equal grounds if the statement of one had been received and weighed as evidence, without that of the other to contradict or explain it.

Judgment on the report.