investigated, it was agreed that this case had been overruled. It was admitted that the action being upon a parol agreement, could make no difference in principle; and the rule was then laid down, "that the law shall never judge that a man covenants against the wrongful acts of strangers, unless the covenant be full and express to that purpose. (t) Accordingly, in a modern case, where a conveyance had been made of lands in New York, during the American war, and the grantor had covenanted that he had a legal title, and that the grantee might peaceably enjoy, &c., without the let, interruption, &c., of the grantor and his heirs, or any other person whomsoever; and the States of America having seized the lands as forfeited for an act done prior to the conveyance, an action of covenant was thereupon brought: the Court of King's Bench thought it clear that the action would not lie; for they said, “even a general warranty, conceived in terms more general than the present covenant, had been restrained to lawful interruptions." (u) lessor himself. A. leased lands to B. by indenture for years, and cove- except by the nanted that B. should enjoy the lands peaceably and quietly according to the intent of the indenture, without any lawful let, disturbance, ejectment, molestation of the said A. A. afterwards entered upon B. without any lawful title; but as a mere trespasser; and it was held that he had been guilty of no breach of the covenant. (v) But in a later case, where it was covenanted by the lessor that the lessee should have, hold, possess, and enjoy the premises without the lawful let, hindrance, or disturbance of the lessor, or any other person lawfully claiming by, from, or under him; it was said by Sir (t) Hayes v. Bickerstaff, Vaugh. 118. See also Anon. M. 26, and 27 Eliz. cited Dyer, 328. a. in mary. Tisdale v. Essex, Hob. 34. S. C. Moore, 861. Chantflower v. Priestley, Cro. Eliz. 914. Broking v. Cham. Cro. Jac. 425. Hammond . Dod, Cro. Car. 5. Nokes's case, 4 Rep. 80. b. Jerritt v. Weare, 3 (u) Dudley v. Folliott, 3 T. R. (v) Davie v. Sacheverell, 1 Rol. Abr. 429. 1. 45. To the acts of what persons a special covenant for quiet enjoyment shall extend. Where it is claiming title generally. George Jefferies, C. J., that they would not consider the word "lawful," nor drive the plaintiff to action of trespass, when, by the general implied covenant in law, he had engaged no way to avoid his own deed, either by a rightful or a tortious entry. (w) And in a modern decision this last case was recognized. and allowed; and the Court held that though such a covenant against the lawful entry of the lessor would not be broken by an accidental trespass, yet if he entered under claim of title, he would be liable for a breach of his covenant. (x) A special covenant against interruption by J. S. extends to unlawful as well as lawful entries by J. S. (y) Where the condition of a bond, after reciting the purchase from W. by the plaintiffs of certain lands, was to save them and the lands harmless from all manner of mortgages, judgments, extents, executions, and other incumbrances, had and obtained, or thereafter to be had and obtained, by T. T., or any other person; it was held to bind the obligor against the wrongful entry of T. T., being a special covenant against the acts of a particular person. (≈) And, in the following cases also, the covenant for quiet enagainst persons joyment has been held to be express against all persons. Where tenant in tail, with reversion in the crown, made a lease for twenty-one years, and covenanted that the lessee should enjoy it against all persons, except the crown, and its successors; and the crown granted the reversion by patent to W., who, upon the death of tenant in tail without issue, entered upon the lessee, who brought covenant against the (w) Crosse v. Young, 2 Show, 425. And see Holder v. Taylor, Hob. 12. (x) Lloyd v. Tomkies, 1 T. R. 671. (y) Foster v. Mapes, 1 Leon, 324. S. C. Cro. Eliz. 212. Perry v. Edwards, 1 Str. 400. Fowle v. Welsh, 1 B. & C. 29. (z) Nash and another v. Palmer, 5 M. & S. 374. executors, it was adjudged that the action lay; for none were excepted but the crown and its successors. (a) So where a bond was made, conditioned that the obligee should enjoy without interruption by any person having, or claiming, or pretending to have, any right of common: it was held that the bond was forfeited by the entry of a stranger claiming a right, and that it was not necessary to shew that such right actually existed. (b) lessor. A fine was levied of a feme covert's estate, declaring the Where against persons claimuses to the husband for life, with power to make leases, reing title mainder over, with joint power of revocation to the husband through the and wife. They afterwards jointly revoked the former uses, and declared new uses to the wife for life, remainder over to A. The husband made a lease, and covenanted therein that the lessee should enjoy the premises without let, suit, or interruption, &c., of or by him, his heirs, or assigns, or any person or persons claiming by, from, or under him. The lessee having been evicted by A., upon his succeeding to the estate, brought an action of covenant against the executors of the husband; who pleaded that A. did not claim the premises by, from, or under the husband. Upon a special verdict found, the Court of King's Bench were of opinion, that as the husband was a necessary party to the second declaration of uses, by which the estate was limited to A., A. must certainly claim under him within the meaning of the covenant. The husband had covenanted against his own acts, and the new limitations were created by one of his acts. (c) So where A. being seised in fee simple of an estate, by lease and release executed upon his marriage, settled the same upon himself for life, remainder to his first and other sons in tail, with a power to the tenant for life to grant leases for years, determinable on three lives; and A. afterwards (a) Woodroff v. Greenwood, Cro. Eliz. 517. (b) Southgate v. Chaplin, Com. Rep. 230. S. C. 10 Mod. 384. What acts amount to a breach. granted a lease of part of the estate in question for the lives of three persons therein named, and the life of the survivor; in which lease there was a covenant that the lessee should quietly enjoy the premises for and during the said term, without the interruption of the lessor, his heirs or assigns, or any other person claiming any estate, right, or interest, by and from him or any of his ancestors: and the lease not being conformable to the power, and void on the death of A., his eldest son brought an ejectment and evicted the lessee, two of the cestuy qui vies being then living it was held, that the eldest son was a person claiming under the lessor within the meaning of the covenant for quiet enjoyment. (d) In order to make a breach of the covenant for quiet enjoyment, it is not necessary that the lessee should be disturbed or ousted. The covenant means to ensure to the lessee a legal entry and enjoyment; and therefore, if a prior lease have been granted by the lessor, it is a breach of the covenant, although no actual disturbance may have arisen to the lessee. (e) If the lessor covenant that the lessee paying his rent shall quietly enjoy, the payment of the rent will not be a condition precedent to the performance of the covenant; but the lessee being disturbed, may maintain his action, although at the time when the cause of action accrued, the rent was in arrear beyond the period at which a right of re-entry had accrued to the landlord. (ƒ) But such a covenant is so far conditional, that if a lessee grant an underlease with such a covenant, to commence at a future period, and is evicted by the anterior landlord, for forfeiture prior to that period, the under-lessee cannot maintain his action until the commencement of the period. (g) Where a man covenants that A. shall quietly enjoy a certain close, and afterwards sets up a gate across a lane leading to the close, by which A. is obstructed in passing to it, this is a breach of the covenant. (h) Where the lessor covenants that the lessee shall quietly enjoy the lands discharged of all rents, the lessee ought to be discharged from a quit rent. (i) But where the covenant was that A. had not done, nor permitted, nor suffered to be done, any act whereby an estate was encumbered: and A. had assented to an act, over which he had no controul; it was held that the meaning of the covenant was that A. had not concurred in any act over which he had a controul, and that it extended to such permissive acts only as have, through his permission an operative effect in charging the estate. (k) for further assurance. II. In addition to the express covenants for quiet enjoy- 2. Covenant ment, the lessor frequently covenants to make such further assurance as the lessee's counsel shall advise. This covenant runs with the land. (7) III. The landlord sometimes covenants that he will repair the premises. But unless he bind himself by such express covenant, the tenant cannot compel him to repair. Therefore if a lease be made of a house, with the use of a pump standing upon the lessor's premises, the lessee has no remedy against the lessor for suffering the pump to be out of repair. (m) And where the premises have been consumed by fire, and the landlord, having insured them, has recovered the insurance money, the tenant cannot compel him either at law, (n) or in equity, (o) to expend the money so (h) Andrews v. Paradise, 8 Mod. 318, (1) Hammond v. Hill, Com. Rep. 180. (k) Hobson v. Middleton, 6 B. & C. 295. (1) Middlemore v. Goodale, Cro. Car. 503. (m) Pomfret. Ricroft, 1 Saund. 320. S. C. 1 Ventr. 26. 44. 1 Sid. 429. 2 Keb. 505, 569. (n) Pindar v. Ainsley, cited 1 T. R. 312. (0) Leeds v. Cheetham, 1 Simons 146. Holtzappel v. Baker, 18 Ves. 115. 3. Covenant to repair. |