Under some the Union, statutes with a similar purpose have been passed.1 of these statutes, a general warranty of title has been made to include and imply all the usual covenants in deeds of conveyance in fee simple; under others the same result has been reached by the mere introduction of the word "warrant" into the words of grant.3 bb. COVENANT TO PAY RENT. A covenant to pay rent in a lease is created by the words of the reddendum,“ rendering," 4 or "yielding and paying.' "5 (c) Creation by Necessary Implication — aa. ÎN GENERAL. — Although, as has already been stated, no particular form of words is necessary to make a covenant, yet, in order for the court to read one out of words which do not directly and of themselves create it, the inference that such was the intention of the parties must be strong. Thus, where provision is made in a deed for the doing of a certain thing, the court must be satisfied that the language does not merely show that the parties contemplated that the thing might be done, ย. according to its Own words. Brown O'Dwyer, 35 U. C. Q. B. 354; McKay v. McKay, 31 U. C. C. P. I. 1. United States. - See Pub. Gen. Laws of Maryland, art. 21, $ 69-76; Code of Tennessee (M. & V.) 1884,2820; Code of Virginia, c. 108, 2446-2454; Code of West Virginia, p. 641. See the statutes generally. 2. General Warranty of Title Includes Other Covenants Georgia. A general warranty of title against the claims of all persons includes in itself covenants of a right to sell and of quiet enjoyment and of freedom from incumbrances. Code of Georgia 1895, § 3614; Burk v. Burk, 64 Ga. 632. Iowa. Under 2958 of the Code of Iowa (1897), it has been held that the use in a conveyance of the words, "I warrant the title against all persons whomsoever," was intended to include and imply all the usual covenants in a deed of conveyance in fee simple. Funk . Cresswell, 5 Iowa 62; Van Wagner v. Van Nostrand, 19 Iowa 422. In South Carolina, under the Act of 1795, a deed of general warranty has been interpreted to embrace all the covenants used in conveyances of land prior to that time, viz., that the vendor is seized in fee; that he has a right to convey; that the vendee shall quietly enjoy: and that the estate is free from all incumbrances; and also, it seems, for further assurances. Jeter v. Glenn, 9 Rich. L. (S. Car.) 374; Lessly v. Bowie, 37 S. Car. 193; Evans v. McLucas, 12 S. Car. 56. 3. Significance of Word "Warrant." - Ind. Rev. Stat. 1881, 2927; Kent v. Cantrall, 44 Ind. 452; Keiper v. Klein, 51 Ind. 316; Dehority . Wright, 101 Ind. 382; Jackson v. Green, 112 Ind. 341; Worley v. Hineman, 6 Ind. App. 240; Mich. How. Stat. 1882, § 5728; Wash. (Ballinger's Code 1897), $4519; Wis. Rev. Stat. (San. & Ber. 1889), 2208. Where a Grantor, Instead of Simply Using the Word "Warrant" in a conveyance and leaving the statute to define what should be implied thereby, goes farther and sets out the particular thing or things which he will warrant against, he cannot be held to have intended other covenants than the one or ones set out. Leddy . Enos, 6 Wash. 247. clear from all manner of taxes, charges, and impositions whatsoever, has been held to amount to a covenant to pay the rent free from all taxes, etc. Giles v. Hooper, Carth. 35. -- 5. Covenant Created by the Words "Yielding and Paying." Platt on Covenants, C. 2; Vyvyan . Arthur, 1 B. & C. 410, 8 E. C. L. 175; Webb. Russell, 3 T. R. 402; Iggulden 7. May, 9 Ves. Jr. 330; Hellier v. Casbard, 1 Sid. 266; Newton v. Osborn, Styles 387; Porter v. Swetnam, Styles 406; Harper . Burgh, 2 Lev. 206; Harper v. Bird, 2 Jo. 102; Van Rensselaer v. Smith, 27 Barb. (N. Y.) 104; Royer v. Ake, 3 P. & W. (Pa.) 461; Kimpton v. Walker, 9 Vt. 191. But an assignment of a lease subject to the payment of the rent and performance of the covenants in the lease" by the assignee, will not imply a covenant by the assignee to indemnify the assignor against the rent. Wolveridge v. Steward, I C. & M. 644. A., being seized in fee of a mill and of certain lands, granted a lease of the latter for years, the lessee yielding and paying to the lessor, his heirs and assigns, certain rents, and doing certain suits and services; and also doing suit to the mill of the lessor, his heirs and assigns, by grinding all such corn there as should grow upon the demised premises. The lessor afterwards devised the mill and the reversion of the demised premises to the same person. It was held that the reservation of the suit to the mill was in the nature of a rent, and that the implied covenant to render it, resulting from the reddendum, was a covenant that ran with the land as long as the ownership of the mill and the demised premises belonged to the same person, and consequently that the assignee of the lessor might take advantage of it. Vyvyan 7. Arthur, 1 B. & C. 410, 8 E. C. L. 175. Covenant Created by Words "To Be Paid.” In a deed conveying the right to use a certain process secured by letters patent, the reservation of a royalty to be paid without any deduction whatsoever, on or before the twentyfirst day after each successive quarter of a year from the date thereof," creates a covenant to pay the royalty on the dates mentioned. Bower v. Hodges, 13 C. B. 765, 76 E. C. L. 765. but it must amount to a binding agreement upon one of them that the thing shall be done.1 bb. FROM THE WORDS OF AN EXPRESS COVENANT. From the words of an express covenant an additional or correlative covenant may be implied, if the language used shows that such a covenant was intended. Thus, when in an agreement under seal, something must be done by one party in order that the other may perform his covenant, a covenant by the former to do the thing will be implied. So, if the performance of a thing is necessary to the performance of something else by the same party, which he has covenanted to do, a covenant to perform the first thing will be implied. But, though the doing of something by one party is necessary to the performance of a covenant by the other, yet, if it is apparent from the deed that the parties had the subject in mind, and that the first purposely withheld a promise in regard to it, a covenant by him cannot be implied. a 1. When Performance Is Contingent - No Covenant Implied. James v. Cochrane, 7 Exch. 177; Smith v. Harwich, 2 C. B.. N. S. 669, 89 E. C. L. 669: King . Accumulative L. Fund, etc., Co., 3 C. B. N. S. 151, 91 E. C. L. 151; Dunn v. Sayles, 5. Q. B. 685, 48 E. C. L. 685; Aspdin v. Austin, 5 Q. B. 671, 48 E. C. L. 671; Aulton v. Atkins, 18 C. B. 249, 86 E. C. L. 249. The plaintiff conveyed two pieces of land to a railway company, subject to the performance by them of certain agreements therein recited, being to the same effect as the covenants contained in the deed hereinafter stated, and one of the pieces of land was described as slip of land then being intended to be formed into a new course for the river Beult;" and by deed of even date the company covenanted with the plaintiff to make a new bridge over the intended new cut for the use of the plaintiff within three months after the permanent rails of the railway should be laid down; and after the same should be completed, to reconvey to the plaintiff the slip of land which should form the new course of the river so far as the same should have been diverted, and also to fill up and level the then existing course of the river so far as the same should have been diverted. It was held that there was no implied covenant to make a new cut and divert the stream. Rashleigh v. South Eastern R. Co., 10 C. B. 612, 70 E. C. L. 612. The plaintiffs leased a coal mine to the defendants at a minimum rent, to be increased in case there should be pits sunk on the estate, and the lessees covenanted to work the mine uninterruptedly, efficiently, and regularly, according to the usual or most improved practice. It was held that the lessee who worked the mine by out-stroke was not bound to sink pits, though that might be the most efficient way of working. Wheatley v. Westminster Brymbo Coal Co., L. R. 9 Eq. 538. See also Sharp v. Waterhouse, 7 El. & Bl. 816, 90 E. C. L. 816; James v. Cochrane, 7 Exch. 170, 8 Exch. 556; Borrowes v. Borrowes, 6 Ir. R. Eq. 368. Where, by a contract under seal, executed by the plaintiff and the defendant, the latter covenants that, upon the payment of one thousand seven hundred dollars in the manner and at the times therein set forth, he will convey to the plaintiff certain real estate, excepting the wood and timber upon a specified part; and the plaintiff covenants that as part payment of the one thousand seven hundred dollars he will cut and carry the wood for the defendant to places and at prices fixed by the contract; there is an implied covenant on the part of the defendant to permit the plaintiff thus to cut and carry the wood. French v. Bent, 43 N. H. 448. 3. Express Covenant Creating Implied Covenant by Same Party. Where in an agreement for the sale of a business the purchase-money is to be payable by instalments contingent on the amount of profits of the business, there is an implied covenant by the purchasers to carry it on. Telegraph Despatch, etc., Co. v. McLean, L. R. 8 Ch. 658. An agreement by a lessee that he would at all times and seasons of burning lime supply the lessor and his tenants with lime at a certain price and for certain purposes, implies a covenant by the lessee to burn lime at all such seasons. Shrewsbury v. Gould, 2 B. & Ald. 487. An agreement in a lease that the tenant should fold "his stock of sheep which he should keep on the demised premises amounts to a covenant by the tenant to keep a flock of sheep on the premises. Webb v. Plummer, 2 B. & Ald. 746. 4. No Covenant Implied when Purposely Withheld. - A lease under seal, drawn technically in form, and with obvious attention to details, contained various covenants, some binding the parties mutually, some the lessor only, others the lessee. It contained a covenant on the part of the lessor to the effect that if the lessee should pay the rents and perform all the covenants on his part, the lessor "shall and will, at the end or expiration of the term," grant to the lessee a new lease for a further term specified, at a rent to be adjusted by appraisers, but not less than that for the first term. In an action to compel the lessee to accept a new lease it was held that this was a covenant on the part of the lessor only, from which no covenant on the part of the lessee to take a new lease could be implied; and that it 1 cc. FROM WORDS THAT IMPORT A CONDITION. A covenant may sometimes be implied from words which at first view appear to operate rather as a condition subsequent, and it is often difficult to determine from the words themselves whether the clause is to be construed as a condition or a covenant, since both may be created by the same words.2 3 Covenant and Condition Distinguished. The chief point of distinction between them is that a breach of a condition subjects the estate to forfeiture, while a breach of a covenant is merely a ground for damages. Hence, when a forfeiture is provided as the remedy for a breach, the clause is always construed as a condition subsequent. Another difference is that a condition is always the creation of a grantor; a covenant may be made by either a grantor or grantee. Intention Governs Construction. But aside from these differences, there are no means for determining whether a provision is to be construed as a covenant or a condition, except by the application of the one rule that the deed is to be construed according to the manifest intention of the parties.4 was optional with him whether or not to take a new lease. Bruce v. Fulton Nat. Bank, 79 N. Y. 154, 35 Am. Rep. 505. Qualification Distinguished from Covenant. Where in a lease a covenant by the lessee not to assign without the lessor's consent, is followed by the clause, " such consent not being arbitrarily withheld," such clause does not constitute a covenant by the lessor, but only amounts to a qualification of the covenant by the lessee, which in the event of an arbitrary refusal would leave the lessee at liberty to assign without the lessor's consent. Treloar 7. Bigge, L. R. 9 Exch. 151; Sear v. House Property, etc., Soc., 16 Ch. Div. 387. 1. Covenant Created by Words Which Import a Condition. 4 Cru. Dig., tit. 32; 1 Roll. Abr. 518; Hoyt v. Kimball, 49 N. H. 322; Avery v. New York Cent., etc., R. Co., 106 N. Y. 142; Post v. Weil, 115 N. Y. 361, 12 Am. St. Rep. 809; Clement v. Burtis, 121 N. Y. 708, 31 N. Y. St. Rep. 902; McKnight v. Kreutz. 51 Pa. St. 232; Paschall v. Passmore, 15 Pa. St. 295; Hartung v. Witte, 59 Wis. 285. " Illustrations. The words subject to the condition that will sometimes make a covenant and not a condition. Skinner v. Shepard, 130 Mass. 180. The words, "provided always, and these presents are upon this express condition, etc.,' in a lease, amount to a covenant. Brookes v. Drysdale, 3 C. P. Div. 52. The following clause in a lease for years: "Said lessee doth agree to deliver up said premises, and all the buildings and repairs put on the said promises by him, on three months' notice, by said lessor paying him two hundred and fifty dollars," is not a condition or limitation, but a covenant. Wheeler v. Dascomb, 3 Cush. (Mass.) 285. "" In Graves v. Deterling, 120 N. Y. 447, the parties introduced the clause in question by saying, it is covenanted and agreed," and thus expressly called it a covenant. But the court held that this alone would not make it a covenant, as that which is termed a covenant may be in fact a condition and that which is termed a condition may be a covenant; but it has an important bearing upon the intention of the parties because technical terms in a conveyance are presumed to have been used with their accustomed meaning unless the circumstances and context indicate a different intent. 2. Parmalee v. Oswego, etc., R. Co., 6 N. Y. 80; Hartung 7. Witte, 59 Wis. 285. 3. Condition and Covenant Distinguished. Woodruff v. Trenton Water Power Co., 10 N. J. Eq. 489; Hartung v. Witte, 59 Wis. 285. And see the title CONDITIONS, vol. 6, p. 503. 4. Intention Governs Construction." The distinctions on this subject," says Chancellor Kent, "are extremely subtle and artificial, and the construction of a deed as to its operation and effect will after all depend less upon artificial rules than upon the application of good sense and sound equity to the object and spirit of the contract in the given case." 4 Kent's Com. 132. --- Provisions Held to Be Covenants and Not Conditions Subsequent. Where the following clause was annexed to the habendum of a deed of bargain and sale, to wit: "Provided, nevertheless, and upon the following condition: that if the said grantor, A. D. W., shall survive the said grantee, P. H. W., he, the said grantor, shall have the right, at any time within eighteen months after the death of said grantee, to purchase back again all the right, title, and interest in said farm, ‘Oaklands,' hereby conveyed, at a valuation to be then made by two disinterested persons, one of whom shall be selected by the legal representatives of the said grantee and the other selected by said grantor; and in case of disagreement the persons so selected may choose a third person, it was held to be a covenant, not a condition. Woodruff v. Woodruff, 44 N. J. Eq. 349. In an agreement to let, in which there was no clause of re-entry, the following stipulation was held to be a covenant, and not a condition operating in defeasance of estate: "It is also hereby agreed and clearly understood, that in case the said A. W., or his heirs, executors, and assigns, should want any part of the said land to build, or otherwise, or cause to be built, then the said T. R., or his heirs, executors, or assigns, shall and will give up that part or parts of the said land as shall be requested by the said A. W., by his making an abatement in proportion to the rent charged, and also to pay for so much of the fence, at a fair valuation, as he shall have occasion from time to time to take away, by his giving or leaving six months' notice of what he intends Construction as Covenants Preferred. However, conditions subsequent, as they tend to destroy estates, are not favored in law, and are always strictly construed; and if it is reasonably doubtful whether a provision in a conveyance was intended as a condition subsequent or a covenant, the judicial inclination is always toward the latter construction.1 dd. FROM A RECITAL in the Deed. — A recital in a deed may operate as a covenant where it appears to have been the intention of the parties that it should so operate.2 to do." Doe v. Phillips, 2 Bing. 18, 9 E. C. L. 296. Restriction upon Use of Property Construed as a Covenant. A deed for a tract of land contained the following clause: It being expressly understood by the parties that the said tract or parcel of land is not to be put to any other use than that of a depot square, and that no business or improvements are to be put on the said tract but that which is immediately connected with the Western and Atlantic Railroad." It was held that these words were words of covenant and not of condition, and that the plaintiff s remedy for a breach thereof was an action thereon for damages, and not for a forfeiture of the estate for covenant broken. Thornton v. Tramwell, 39 Ga. 202. Even where the habendum clause of a deed contained the following stipulation, to wit: Provided always and these presents are upon this express condition, that the aforesaid premises shall not, nor shall any part thereof, or any building or buildings thereon erected or to be erected, be at any time hereafter used or occupied as a tavern or public house of any kind," it was held that as the intention might be sought for in the other words of the instrument and by reference to the surrounding circumstances, said provision was simply a covenant running with the land for the benefit of the adjoining estate belonging to the grantor. Post v. Weil, 115 N. Y. 361, 12 Am. St. Rep. 809. A provision in a deed that the conveyance is upon the express condition * * * grantee, his heirs or assigns," erect, place, or permit said premises * * * that the shall not upon the any building or erection, or carry on any business which shall or may cause or become a nuisance to others owning lands or contiguous thereto," does not create a condition subsequent; it is simply a covenant running with the land. Clement v. Burtis, 121 N. Y. 708, 31 N. Y. St. Rep. 902. Maintaining Opening into Premises Conveyed.The deed under consideration in Avery v. New York Cent., etc., R. Co., 106 N. Y. 142, provided that it was 66 * such a manner as to do no injury to the surface of said land, and not to spoil the coal itself, and in order to carry this condition into full effect, parties of the first part reserve the power and full right to themselves to send, from time to time, an expert into the coal-pit for the purpose of examining the manner in which said business is therein done, and to get his approval thereto," is not a condition, for breach of which the lessors may enter, but a covenant, for breach of which the lessee is liable in damages. McKnight . Kreutz, 51 Pa. St. 232. Provision for Maintenance of Fence Construed as a Covenant. An agreement to maintain a fence between the lands granted and those of the grantor, is never construed as a condition but as a covenant. Hartung v. Witte, 59 Wis. 285, citing Sedg. & Wait, Trial of Title, § 213, and distinguishing Emerson v. Simpson, 43 N. H. 475, 82 Am. Dec. 168. See also Countryman v. Deck, 13 Abb. N. Cas. (N. Y. Supreme Ct.) 110; Merrifield v. Cobleigh, 4 Cush. (Mass.) 184. And see the title FENCES. Provision in Deed Construed as a Condition Subsequent. A grant of land to a railroad company to have and to hold the same so long as it should be used for the operation of a railroad," provided nevertheless, and these presents are upon the express conditions, first, that the said party of the second part, his heirs or assigns, shall construct and complete said railroad on or before the first day of January, 1888, etc.," creates an estate upon condition subsequent and not a fee simple with covenant. Reichenbach v. Washington Short Line R. Co., 10 Wash. 357. 1. Provisions Construed as Covenants Rather than Conditions. - 4 Kent's Com. 132. Georgia. — Thornton v. Trammell, 39 Ga. 202. Illinois. - Conger v. Chicago, etc., R. Co., 15 Ill. 366; Board of Education v. First Baptist Church, 63 Ill. 204; Gallaher v. Herbert, 117 Ill. 160. Iowa. Wheeler v. Dascomb, 3 - Peden v. Chicago, etc., R. Co., 73 Iowa 328, 5 Am. St. Rep. 680. Massachusetts. upon the express condition that the said railroad company * * shall, Cush. (Mass.) 285. at all times, maintain an opening into the premises hereby conveyed, opposite to the Exchange Hotel, so called, for the convenient ee. BY RESERVATIONS FROM LAND DEMISED. The reservation of a right out of the land demised creates a covenant by the lessee not to interfere with the lessor's enjoyment of the right so reserved. 1 Where f. BY RESTRICTIONS UPON USE OF PROPERTY. A restriction as to the use of property granted or demised raises by implication a covenant on the part of the grantee or lessee against the use of the property in that way.2 gg. BY DESCRIPTION OF LAND CONVEYED—(aa) As Respects the Quantity of Land. a tract of land which is the subject of a conveyance is particularly described therein by metes and bounds, the additional statement that the tract contains a certain number of acres is to be considered as merely descriptive and does not create a covenant of quantity.3 & W. (Pa.) 313; and supra, this section, Form Immaterial, notes. For a Full Treatment of the effect of recitals, see the title RECITALS. 1. Reservation from Land Demised. By indenture, H. leased a house excepting two rooms and free passage to them. The lessee assigned to a third party, and the assignee disturbed the lessor in the passage of the house, and for this disturbance the lessor brought covenant. It was held that the action lay in the same manner as where the lessee agrees to let the lessor have a thing out of the demised premises, as a way, common, or other profit appendant; but if the disturbance had been in the rooms, no action of covenant would have lain, because they were excepted and so not demised. Bush v. Cole, Carth. 232, 12 Mod. 24; Bush v. Calis, 1 Show. 388; Cole's Case, I Salk. 196. 2. Restrictions upon Use of Property. Hodson v. Coppard, 29 Beav. 4. See also Seddon v. Senate, 13 East 63: Rigby v. Great Western R. Co., 14 M. & W. 811; and cases cited supra, this section, From Words That Import a Condition. And see generally, the title BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS, vol. 5, p. 2. A covenant by a lessee that he will at all times during the term plough, sow, manure, and cultivate the demised premises (except the rabbit-warren and sheep-walk) in due course of husbandry, implies a covenant not to plough the rabbit-warren and sheep-walk, and an action of covenant lies against him if he does so. St. Albans 7. Ellis, 16 East 352. But the words, to be used as cabinet warerooms," following the description of the premises in a lease for years, do not imply a covenant on the part of the lessee not to use the premises for any other purpose than as cabinet warerooms. Brugman v. Noyes, 6 Wis. I. And a fortiori, it is not a covenant to erect the buildings necessary for such purposes. Mador's Appeal, 129 Pa. St. 15. 3. Mention of Number of Acres in Description Does Not Create a Covenant Alabama. Wright . Wright, 34 Ala. 194; Rogers v. Peebles, 72 Ala. 529. Connecticut. - Snow 7. Chapman, I Root (Conn.) 528. Georgia. Beall v. Berkhalter, 26 Ga. 564. Maryland. Hall 7. Mayhew, 15 Md. 551. Massachusetts. - Powell v. Clark, 5 Mass. 355, 4 Am. Dec. 67. New Hampshire. - Perkins v. Webster, 2 N. H. 287. New York. - Mann v. Pearson, 2 Johns. (N. Y.) 37; Roat 7. Puff, 3 Barb. (N. Y.) 353. North Carolina. Rickets 2. Dickens, I Murph. (5 N. Car.) 343, 4 Am. Dec. 555; Powell v. Lyles, 1 Murph. (5 N. Car.) 348; Huntly v. Waddell, 12 Ired. L. (34 N. Car.) 33; McArthur 7. Morris, 84 N. Car. 405. Pennsylvania. Whitehill 7. Gotwalt, 3 P. & W. (Pa.) 327; Large v. Penn, 6 S. & R. (Pa.) 488. South Carolina. Jones V. Bauskett, 2 Spears L. (S. Car.) 68; Lorick v. Hawkins, I Rich. L. (S. Car.) 417. 51. Virginia. — Tucker v. Cocke, 2 Rand. (Va.) Illustrations. A conveyance of a particular tract of land, without a specification of quantity, does not bind the vendor to warrant a particular number of acres, if there has been no false representation, and no concealment of facts within his knowledge; although there may have been an expectation in both parties, founded on documents and other evidence known to both, that the number of acres is greater than it turns out to be, upon a subsequent survey. Tucker v. Cocke, 2 Rand. (Va.) 51. Where the lands conveyed by a deed are described by their subdivisions and numbers in the United States surveys, including fractional parts of several sections, with the words added, "making in all five hundred and twenty-seven acres," followed by a designation of the boundary lines on each side, as indicated by the adjacent lands and the river, and the price paid is a gross sum; the words specifying the quantity are mere matter of description, and not a covenant warranting the quantity. Rogers v. Peebles, 72 Ala. 529. 44 Where a deed, after describing the premises intended to be conveyed, by metes and bounds, contained these words, containing one hundred and ninety-five acres of land," and after excepting two pieces, one of fifty acres, and another of sixteen acres, added: There being in the lot hereby conveyed one hundred and thirty-five acres, strict measure, the surplus, if any, not being hereby conveyed;" it was held that this was not a covenant that there were one hundred and thirtyfive acres of the land described; and that the grantor was not liable in an action of covenant, upon its turning out that the quantity of land embraced within the boundaries was less than one hundred and thirty-five acres. Where land is conveyed by metes and bounds, and at the close of the description the number |