Hays v. Lasater , 3 Ark. 565 ( 1841 )

Dickinson, J.,

delivered the opinion of the Court:

It is laid down in 1 Chitty’s Pleading, 11, that “when a covenant is made with two or more parties, to pay them money for themselves or for the use of another, it is not correct to use the name of one only of the covenantees, although the others have omitted to execute the deed,” and that when joint covenantees may join they must do so. (3 B. & C. 353.) If there is any legal ground for omitting the name of one of the covenantees as a plaintiff, as his death, refusal to join &c. it is necessary to show such excuse for his non-joinder, otherwise the omission is fatal. 2 Str. 1146; 1 Ch. 497; 1 Saund. 153; n. 1. The covenant is clearly joint; James is made a party to it, upon its face, and no legal excuse is given for not making him a co-plaintiff.

It cannot be contended that the suit was in the name of those only by whom the instrument was sealed; for the declaration does not aver that it is sealed by any, either of the plaintiffs or defendants. It is true, they declare that defendants did covenant, but not that they covenanted by deed, or that the instrument was sealed, unless the setting it out at length in the declaration be sufficient; that it is not, all the authorities concur. The case of Van Santvoord & another vs. Sanford 12 J. R. 197, is directly in point; there, as in this instance, the agreement was set out in hcec verba concluding with “witness our hands and seals,” and even there the Court would not intend that the writing was sealed. The same principle was decided in the case of Le Page vs. McCrea, 1 Wend. R. 166; also in the case of Macomb vs. Thompson, 14 J. R. 207. The Courts say, that in the absence of the words, “indenture,” “deed,” or “writing obligatory,” all of which import that the instrument was sealed, there must be an express averment that it was sealed; and that the word “covenant” or “agreement” does not import it as sealed. There is a distinction between covenants in deed and covenants in law, and to show that it is the former an express averment is necessary. See also Cro. Eliz. 751; 3 Ld. Raym. 537; 8 Com. dig. Fait. (A. 2) Plead. 2 W. 9, 14. See also Cabel vs. Vaughan, 1 Saund. 291, note 1, where all the cases are accurately collected.

As the case is presented by the record, the omission to state that the covenant was by deed, or some words purporting it to be sealed, as well as the non joinder of James without any legal excuse for such omission, are both certainly fatal on demurrer. The judgment of the Circuit Court must be affirmed with costs.