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COVENANT Definition & Legal Meaning

Definition & Citations:

In practice. The name of a common-law form of action ex contractu, which lies for the recovery of damages for breach of a covenant, or contract under seal. Stickney v. Stickney, 21 N. II. GS. In the law of contracts. An agreement convention, or promise of two or more parties, by deed in writing, signed, sealed, and delivered, by which either of the parties pledges himself to the other that something is either done or shall be done, or stipulates for the truth of certain facts. Sabin v. Hamilton, 2 Ark. 490; Com. v. Robinson, 1 Watts (Pa.) 1G0; Kent v. Edmondston, 49 N. C. 529. An agreement between two or more parties, reduced to writing and executed by a seal ing and delivery thereof, whereby some of the parties named therein engage, or one of them engages, with the other, or others, or some of them, therein also named, that some act hath or hath not already been done, or for the performance or nonperformance of some specified duty. De Bolle v. Insurance Co., 4 Whart. (Pa.) 71, 33 Am. Dec. 3S. Classification. Covenants may be classified according to several distinct principles of division. According as one or other of these is adopted, they are; Express or implied; the former being those which are created by the express words of the parties to the deed declaratory of their intention, while implied covenants are those which are inferred by the law from certain words in a deed which imply (though they do not express) them. Express covenants are also called covenants “in deed,” as distinguished from covenants “in law.” McDonough v. Martin, S8 Ga. 675, 1G S. E. 59, 18 L It A. 343; Conrad v. Morehead, 89 N. C. 31: Garstang v. Davenport, 90 Iowa, 359, 57 N. W. 876. Dependent, concurrent, and independ’ ent. Covenants are either dependent, concurrent, or mutual and independent The first depends on the prior performance of some act or condition, and, until the condition is performed, the other party is not liable to an action on his covenant. In the second, mutual acts are to be performed at the same time; and if one party is ready, and offers to perform his part, and the other neglects or refuses to perform his, he who is ready and offers has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act. The third sort is where either party may recover damages from the other for the injuries he may have received by a breach of the covenants in his favor: and it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff. Bailey v. White, 3 Ala. 330; Tompkins v. Elliot. 5 Wend. (X. Y.) 497; Gray v. Smith (C. C.) 76 Fed. 534. Principal and auxiliary; the former being those which relate directly to the principal matter of the contract entered into between the parties; while auxiliary covenants are those which do not relate directly to the principal matter of contract between the parties, but to something connected with it. Inherent and collateral; the former being such as immediately affect the particular property, while the latter affect some property collateral there to or some matter collateral to the grant or lease. A covenant inherent is one which is conversant about the land, and knit to the estate in the land ; as. that the thing demised shall be quietly enjoyed, shall be kept in repair, or shall not be aliened. A covenant collateral is one which is ? conversant about some collateral thing that doth nothing at all. or not so immediately, concern the thing granted: as to pay a sum of money in gross, etc. Shep. Touch. 161. Joint or several. The former bind both or all the covenantors together; the latter hind each of them separately. A covenant may be both joint and several at the same time, as regards the covenantors; but, as regards the covenantees, they cannot be joint and several for one and the same cause, (5 Coke, 19re.) hut must be either joint or several only. Covenants are usually joint or several according as the interests of the covenantees are such; but the words of the covenant, where they are unambiguous, will decide, although, where they are ambiguous, the nature of the interests as being joint or several is left to decide. Brown. See Capen v. Barrows, 1 Gray (Mass.) 379; In re Slingsby, 5 Coke, 18b. General or specific. The former relate to land generally and place the covenantee in the position of a specialty creditor only; the latter relate to particular lands and give the covenantee a lien thereon. Brown. Executed or executory; the former being such as relate to an act already performed; while the latter are those whose performance is to be future. Shep. Touch. 101. Affirmative or negative; the former being those in which tlie party binds himself to the existence of a present state of facts as represented or to the future performance of some act; while the latter are those in which the covenantor obliges himself not to do or perform some act. Declaratory or obligatory; the former being those which serve to limit or direct uses; while the latter are those which are binding on the party himself. 1 Sid. 27; 1 Keb. 337. Real and personal. A real covenant is one which binds the heirs of the covenantor and passes to assignees or purchasers; a covenant the obligation of which is so connected with the realty that he who has the latter is either entitled to the benefit of it or is liable to perform it; a covenant which has for its object something annexed to, or inherent in, or connected with, land or other real property, and runs with the land, so that the grantee of the land is invested with it and may sue upon it for a breach happening in his time. 4 Kent, Comm. 470; 2 Bl. Comm. 304; Chapman v. Holmes, 10 N. J. Daw, 20; Skinner v. Mitchell, 5 Kan. App. 300, 48 Tae. 450; Oil Co. v. Hinton, 159 Ind. 398, 64 N. E. 224 ; Davis v. Eyman, 6 Conn. 249. In the old books, a covenant real is also defined to be a covenant by which a man binds himself to pass a thing real, as lands or tenements. Termes de la Ix?y; 3 Bl. Comm. 156; Shep. Touch. 161. A personal covenant, on the other hand, is one which, instead of being a charge upon real estate of the covenantor, only binds himself and his personal representatives in respect to assets. 4 Kent, Comm. 470; Carter v. Denman, 23 N. J. Law, 270; Iladley v. Bernero, 97 Mo. App. 314, 71 S. W. 451. The phrase may also mean a covenant which is personal to the covenantor, that is, one which he must perform in person, and cannot procure another person to perform for him. Transitive or intransitive; the former being those personal covenants the duty of performing which passes over to the representatives of the covenantor; while the latter are those the duty of performing which is limited to the covenantee himself, and does not pass over to his representative. Bac. Abr. Cov. Disjunctive covenants. Those which are for the performance of one or more of several things at the election of the covenantor or covenantee, as the case may be. Piatt, Cov. 21. Absolute or conditional. An absolute covenant is one which is not qualified or limited by any condition. The following compound and descriptive terms may also be noted: Continuing covenant. One which indicates or necessarily implies the doing of stipulated acts successively or as often as the occasion may require; as, a covenant to pay rent by installments, to keep the premises in repair or insured, to cultivate land, etc. Mc- Glynn v. Moore, 25 Cal. 395. Full covenants. As this term is used in American law, it includes the following: The covenants for seisin, for right to convey, against incumbrances, for quiet enjoyment, sometimes for further assurance, and almost always of warranty, this last often taking the place of tlie covenant for quiet enjoyment, and indeed in many states being the only covenant in practical use. Kawle, Cov. for Title,


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