Midgett v. . BrooksMidgett v. . Brooks
- Reporters:
- Before:
- Nash
This cause in here upon a case agreed. The* declaration contains two counts ; one on a covenant of sei-’ sin, the othеr upon a covenant of quiet enjoyment. It is agreed, that if upon еither count the plaintiff is entitled to a recovery, judgment shall be-rendеred for him for the sum set forth. The alleged covenants are contained in a deed of bargain and sale for a tract of land, sold by William S. Dоuglas, who is now dead, to-the plaintiff. The deed, after’ setting out in the prеmises the parties to it, and specifying the land, and the interest eonvеyed, goes on as follows:: “To have and to hold the-above described piece or parcel of land free and clear from me, my heirs, executors, administrators and assigns and from all other persons whatsoever, unto the said John Midgett,. &c.” Midgett was sued and turned out of pоssession by paramount title.
We are of opinion, that the clause in the deed, as above-set forth, contains a covenant for quiеt enjoyment. The defendant, through his counsel, insists, that the deed contains nо covenant whatever. It is true, the word covenant or agreement, does not appear- in it, nor is it necessary that either of them shоuld. No precise or technical language is required’by law, in which a сovenant shall be worded — any words which amount to or import, an agreement, are sufficient, a covenant being an agreement or contract under seal;-. Platt on covenants 28; Lamb and Morris, 1 Bur. 290. The words in the deed we are considering, upon their face import a promise or agreement on the part of Douglas, the vendor, that Midgett shall enjoy the premises free from disturbance from any one, claiming by title paramount; and that is a covenant for quiet enjoyment; Woodward v Ramsay, 2. Haw. 335. The languge of the deed is, that he “ shall have and hold, that is, possess, the land iree and clear, &c.” It is. objected, however, that these words are- *148 in the habendum of the deed, and constitute a part of it. By themselves, they prоperly constitute no part of the ha-bendum. The office of the habendum is to point out the interest or estate conveyed. The words, “ free and clear,” &c., go beyond that, and, in connction with the habendum, technically so called, are unmeaning. But it is a rule in the construction of deeds, that every: clause and word, if possible and consistent with law, shall have a meaning given to it. If, however, they do constitute a part of the ha-bendum, they cеrtainly are out of place, but that circumstance ought not to deprive them of their existence and legal effect. It is the officе of the premises to specify the parties to the deed and the thing granted; if, however, the name of the grantee appears for the first timе in the haben-dum, it is sufficient; Hafner v Irwin, 4 Dev. and Bat. 433; Coke on Lit. 26 b. note. Now, if a grantee may appеar for the first time in the habendum, we can see no good reason, why a covenant may not. Had the words we are considering appearеd in a separate clause to themselves, there can be nо doubt as to their being a covenant for quiet enjoyment. The whole clause, however, is a covenant for quiet enjoyment. An habendum clause is nоt essential to the Validity or completeness of a deed — it may be entirely omitted without affecting its validity. The parties, the thing granted, and the quаntity of estate may all be contained in the premises — and” such is the modern or most frequent mode of conveyances; 4 Kent’s Com., 468.
It is the duty of this Court to look into the whole case, and to pronounce such judgmеnt as the Court below ought to have done; and believing that the deed contains a covenant for quiet enjoyment, judgment is given to the plaintiff.
Per Curiam. Judgment affirtaed.