COVENANT

covenant, in law, is the english equivalent of the lat. _conventio_, which, although not technical, was the most general word in roman law for "agreement." it was frequently used along with _pactum_, also a general term, but applied especially to agreements to settle a question without carrying it before the courts of law. the word "covenant" has been used in a variety of senses in english law. 1. in its strict sense, covenant means an agreement _under seal_, that something has or has not already been done, or shall or shall not be done hereafter (shep. _touchstone_, 160, 162). it is most commonly used with reference to sales or leases of land, but is sometimes applied to any promise or stipulation, whether under seal or not. the person who makes, and is bound to perform, the promise or stipulation is the covenantor: the person in whose favour it is made is the covenantee. 2. covenants have been subdivided into numerous classes, only a few of which need to be described. it is unnecessary to do more than mention affirmative and negative covenants, joint or several, alternative or disjunctive covenants, dependent or independent covenants. as to collateral covenants, covenants "running with the land," and covenants in leases (including "usual," "proper" and "restrictive" covenants), see landlord and tenant. but there are other classes as to which something must be said. a covenant is said to be _express_ when it is created by the express words of the parties to the deed declaratory of their intention. it is not indispensable that the word "covenant" should be used. any word which clearly indicates the intention of the parties to covenant will suffice. an _implied_ covenant, or _covenant in law_, "depends for its existence on 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; and they are as effectually binding on the parties as if expressed in the most unequivocal terms" (platt on _covenants_, p. 40). thus, the word "demise," used in a lease of deed, raises the implication of a covenant both for "quiet enjoyment" and for title to let; and it has been judicially suggested that a covenant for quiet enjoyment may be implied from any word or words of like import (_budd-scott_ v. _daniell_, 1902, 2 k.b. p. 359). the conveyancing act 1881 provides (s 7) that in a conveyance for valuable consideration, other than a mortgage, there shall be implied, as against the person who conveys and is expressed to convey as "beneficial owner," certain _qualified_ covenants--i.e. covenants extending only to the acts or omissions of the vendor, persons through whom he derives title otherwise than by purchase for value, and persons claiming under them--for "right to convey," "quiet enjoyment," "freedom from incumbrances" and "further assurance." of these statutory covenants for title the only one which requires explanation is the covenant for further assurance. it imports an agreement on the part of the covenantor to do such reasonable acts, in addition to those already performed, as may be necessary for the completion of the transfer made (or intended to be made) at the requirements of the covenantee (platt on _covenants_, p. 341). all these statutory implied covenants "run with the land" (see landlord and tenant). where a mortgagor conveys, and is expressed to convey, as "beneficial owner," there are implied _absolute_ covenants--i.e. covenants amounting to a warranty against and for the acts and omissions of the whole world--that he has a right to convey, that the mortgagee shall have quiet enjoyment of the property after default, free from incumbrances and for further assurance. special provisions as to implied covenants by the lessor in leases are made in england by s 7 (b) of the conveyancing act 1881 and in ireland by the land act (ireland) 1860, s 41. the distinction between _real_ and _personal_ covenants is that the former do, while the latter do not, run with the land. an _inherent_ covenant is another name for a _real_ covenant (shep. _touchstone_, 176; platt, 60). when a covenant relates to an act already done, it is usually termed a covenant _executed_; where the performance is future, the covenant is termed _executory_. the _covenant for seisin_ was an assurance to the grantee that the grantor had the estate which he purported to convey. in england it is now included in the covenant for right to convey; but is still in separate use in several states in america. the _covenant to stand seised to uses_ was an assurance by means of which, under the statute of uses [1536] (see uses), a conveyance of an estate might be effected. when such a covenant is made, the legal estate in the land passes at once to the covenantee under the statute. the consideration for the covenant must be relationship by blood or marriage. it is still occasionally though very rarely employed. the _covenant not_ to _sue_ belongs to the law of contract and needs no explanation. most of the classes of covenants above mentioned are in use in the united states. in new york, michigan, minnesota, oregon, wisconsin and wyoming the implication of covenants for title has been, with certain exceptions, prohibited by statute. in alabama, arkansas, delaware, illinois, indiana, mississippi, missouri, montana, nevada, new mexico, pennsylvania and texas the words _grant_, _bargain_ and _sell_, in conveyances in fee, unless specially restricted, amount to qualified covenants that the grantor was seised in fee, free from incumbrances, and for quiet enjoyment (4 kent, _commentaries_, s 473; bouvier, _law dictionary_, s.v. covenant). in some of the states a _covenant of non-claim_, or of _warranty_, an assurance by the grantor that neither he nor his heirs, nor any other person shall claim any title in the premises conveyed, is in general use. 3. an _action of covenant_ lay for breaking covenant. as to the history of this action see pollock and maitland, _history of english law_, ii. 106; and holmes, _the common law_, p. 272. there was also a _writ of covenant_. but this remedy had fallen into disuse before 1830 (see platt on _covenants_, p. 543), and was abolished by the common law procedure acts. since the judicature acts, an action on a covenant follows the same course as, and is indistinguishable from, any ordinary action for breach of contract. the remedy is by damages, decree of specific performance or injunction to prevent the breach. the term "covenant" is unknown to scots law. but its place is filled to some extent by the doctrine of "warrandice." many of the british colonies have legislated, as to the implication of covenants for title, on the lines of the english conveyancing act 1881; e.g. tasmania, conveyancing and law of property act 1884 (47 vict. no. 10). as to covenants in restraint of trade see restraint. authorities.--in addition to the authorities cited in the text see: _english law_; goodeve, _law of real property_ (5th ed., london, 1906); c. foa, _landlord and tenant_ (3rd ed., london, 1901); hamilton, _law of covenants_ (london); fawcett, _law of landlord and tenant_ (3rd ed., london, 1905). _american law: rawle, law of covenants for title_ (boston, 1887); _encyclopaedia of american law_ (3rd ed., 1890), vol. viii., tit. "covenants." (a. w. r.)