Covenantee in United Kingdom

Meaning of Covenantee

The following is an old definition of Covenantee [1]: He in whose favor a covenant is made. Express covenant. A covenant explicitly stated in words. Implied covenant. Such covenant as is inferred or imputed in law from words used. Express covenants are also called covenants in deed; and implied covena,nts, covenants in law. Any words, such as “I covenant,” “la gree,” “I bind my- self,” plainly showing: an intent to be bound, raise an express covenant; while a covenant may be implied from the use of such words as ” grant,” “bargain and sell,” “give,” ” demise,” see, in this resource, the term Joint covenant. A covenant that binds all the covenantors together as one person. Several covenant. Such as binds each covenantor separately. Joint and several covenant. Binds all covenantors together, or each singly. When the legal interest in a covenant and in the cause of action thereon is joint, the covenant is joint, although in its terms it may be several, or joint and several. See further Joint. Dependent covenant. A covenant in which the obligation for performance is conditioned upon performance of another covenant, made prior or at the same time. Independent covenant. In this the duty of performance rests solely upon the terms of the covenant in itself considered, irrespective of the performance or non-performance of any other covenant. A “dependent covenant” rests upon 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. Under an “independent covenant” either party may recover damages from the other for injuries received by a breach of the covenants in his favor; and it is no excuse for the defendant to allege a breach of covenants on the part of the plaintiff. If the whole is to be performed on one side, before anything else is to be done on the other side, the covenants are dependent, and performance is a condition precedent. But if something is to be done one side, before the whole can be performed on the other, the covenants are independent. . . A dependent stipulation is a condition, performance of which must be averred and proved in order to a recovery. Mutual and independent stipulations are not conditions, but each party has a remedy by action for non-performance by the other, by showing performance on his own part. Whether a covenant is dependent or independent is determined, in each case, by the intention of the parties as it appears on the instrument, and by the application of common sense; to which intention, when once discovered, all technical forms of expression must give way. Mutual covenants. Covenants as to which the thing to be done by one party is the consideration of the thing to be done by the other. When a specified thing is to be done by bne party as the consideration of the thing to be done by the other party, the covenants are mutual, and also dependent, if they are to be performed at the same time; and if, by the terms or nature of the contract, one is first to be performed as the condition of the obligation of the other, that which is first must be done or tendered before the party who is entitled to its performance can sustain a suit against the other party. If a day is fixed for the performance of a mutual covenant, the party whose duty it is to perform or tender performance first must do it on that day, or show his readiness to do it, else he cannot recover for non-performance by the other party. But both at common law and in chancery there are exceptions, growing out of the nature of the thing to be done and the conduct of the parties. The case of part performance, possession, etc., in chancery, where time is not of the essence of the contract, or has been waived by acquiescence, is an example of the latter; and the case of contracts for building houses, railroads, etc., in which the means of the builder and his labor become combined and affixed to the soil, or mixed with materials and money of the owner, afford examples at law. When mutual covenants go to the whole consideration on both sides they are mutual conditions, the one precedent to the other; where they go to a part only, a remedy lies on one cdvenant to recover damages for a breach of it, but it is not a condition precedent. Heal covenant. Such a covenant as affects realty, binding it in the hands of the covenantor, his grantee or devisee. Personal covenant. A covenant obligatory upon the maker only, or to the extent of his personalty. If the covenantor covenants for himself and his “heirs,” his covenant is, real, and descends upon the heirs, who are bound to perform it, provided they have assets by descent; if he covenants also for his ” executors ” and ” administrators,” both his personal and real assets stand pledged for the performance. A real covenant has for its object something annexed to, or inherent in, or comieeted with, land or other real property; and runs with the land, so that the grantee is invested with it, and may sue upon it for any breach happening in his time. Of covenants real the most important are covenants for title, which assure the full enjoyment of whatever the deed purports to convey: the covenants – of seisin, of a right to convey, for quiet enjoyment, against incumbrances, for further assurance, and of warranty, qsee, in this resource, the term In the United States they are sometimes called ” full covenants.” Other covenants relating to realty are: a covenant to convey; against nuisances or a particular use; to renew a lease. An article of agreement for the sale of land is a covenant to convey the land. A covenant of a right to convey means that the covenantor has the capacity and a right to transfer the land in question: the same as a covenant of seisin, see, in this resource, the term A covenant ” runs with the land ” when either the liability to perform it, that is, its burden, or the right to take advantage of it, that is, its benefit, passes to the assignee of the land. Covenants running with the land are: those annexed tp tile estate, such as the ancient warranty, now represented by the usual covenants of title; and those which are attached to the land itself, such as the rights of common or easements. Species of the latter class, to be enforceable against the assignees of the covenantor, must “touch and concern” or “extend to the support of ” the land conveyed. On covenants to stand seized to uses, see Use, 3. Other terms by which covenants are distinguished are: affirmative, that a thing has been or shall be done, and opposed to negative, not to do a thing; alternative or disjunctive, affording an election between things to be done; auxiliary, relating to another covenant as the principal, and discharged with it; collateral, connected with a grant, but not relating immediately to the thing, and opposed to inhcrent, affecting the particular property immediately; concurrent,to be performed at the same time with another; declaratory, limiting or directing a use; executed, performed, and opposed to ex- ecutory, to be performed in the future; general, relating to lands generally and placing the covenantee in the position of a, specialty creditor, and opposed to special, relating to particular land and giving the covenantee a lien thereon; transitive, passing over to the representatives of the maker, and opposed to intransitive, limited to the covenantor himself. A grantor, conveying by deed of bargain and sale, by way of release or quitclaim of all his right and title to a tract of land, if made in good faith, without fraudulent representation, is not responsible for the goodness of the title beyond the covenants in his deed. He conveys nothing more than the estate of which he is possessed at the time; his deed does not pass an interest not then in existence. If the vendee has contracted for a partipular estate, or for an estate in fee, he must take the precaution to secure himself by proper covenants of title. This principle is applicable to a deed of bargain and sale by release or quitclaim, in the strict sense of that species of conveyance. In the deed bears on its face evidence that the grantor intended to convey and that the grantee expected to become invested with an estate of a particular description or quality, and that the bargain had proceeded upon that footing, then, although it may not contain covenants of title in the technical sense, still the legal effect of the instrument will be as binding upon the grantor in respect to the estate thus described as if a formal covenant to ttiat effect had been inserted; at least so far as to estop him from ever afterward denying that he was seized of the particular estate at the time of conveyance. In the absence of a recital estopping the grantor as to the character of his title or the quantum of interest to be conveyed, a covenant of general warranty, where the estate conveyed is the present interest of the grantor, does not operate as an estoppel to pass a title subsequently acquired. 2. An action, or a form of action, at common law to recover damages for the breach of a contract under seal. A covenant to do or to omit a direct act is a species of express contract, the breach of which is a civil injury. The remedy for any disadvantage or loss is by a writ of covenant, which directs the sheriff to command the defendant generally to keep his covenant with the plaintiff or to show good cause to the contrary. If the defendant continues refractory, or the covenant is already so broken that it cannot be specifically performed, the subsequent proceedings set forth with precision the covenant, the breach, and the los which has happened thereby; whereupon the jury will give damages in proportion to the injury sustained. Performance of a condition precedent (g. v.),if there is any such condition, must he averred. ” Debt ” will lie where the damages are liquidated. Under the plea of non est factum (he did not make it), the defendant may show any fact contradicting the making of the instrument; as, personal incapacity, or that the deed was fraudulent, was not executed by all the parties, or was not delivered. In Pennsylvania the defendant may plead ” covenants performed with leave, etc.,” that is, with leave, after notice to the plaintiff, to offer in evidence anything that amounts to a lawful defense. ” Covenants performed, absque hoc ” (without this) admits the execution, but puts the plaintiff to proof of performance. . . ” Covenants performed, “although in substance a denial of the breach alleged, is an affirmative plea, and does not put the execution of the instrument in issue. ” Absque hoc ” puts in issue the performance on the part of the plaintiff as alleged by him. ” With leave, etc.,” implies an equitable defense such as arises out of special circumstances, which the defendant intimates he means to offer in evidence. See Condition; Contract; Factum, Non est; Possibility; Provided; Seizin; Warranty, 1.

Resources

Notes and References

1. Concept of Covenantee provided by the Anderson Dictionary of Law (1889)