Wilson v. Wood ( 1865 )

The Chancellor.

The bill is filed by the purchaser against the vendor, to compel the specific performance of a contract for the sale and conveyance of real estate. By the terms of the contract, the conveyance was to be “by deed with usual covenants.” The deed tendered, contained . only the covenant of general warranty. This the purchaser refused-to accept, upon the ground that it was not a compliance with the terms of the agreement. The counsel of the purchaser thereupon prepared, and submitted to the vendor to be executed, a deed containing (in addition to the covenant of general warranty) covenants of seizin, of right .to convey, and against encumbrances. This the grantor refused to execute.

The only question is, what are “ usual covenants ” in a deed of bargain and sale of a fee simple estate.

The usual personal covenants inserted in a conveyance in fee, as stated by Chancellor Kent, are: 1. That the grantor is lawfully seized. 2. That he has a good right to convey. 3. That the land is free from encumbrances. 4. That the grantee shall quietly enjoy. 5. That the grantor will war-r wit and defend the title against all lawful claims. 4 Kent’s Com. 471.

The authorities agree that all these covenants, except the last, are usual covenants in a conveyance of the fee. In lieu of the covenant of warrantyj the usual covenant in England is a covenant for further assurance. 2 Sugden on Vendors (7th Amer. ed.) 701, ch. 13, sec. 3, § 2; 4 Cruise’s Dig. 459, title 32, “Deed,” chap. 25, § 47, § 62; Ibid. (Greenleaf’s ed.), title 32, “Deed," chap. 26, § 47; Rawle on Cov. (3d ed.) 11.

It is material to observe that the question is not what-c venants, in the absence of a special agreement for covenants, the vendor is obliged to give, and the purchaser has a right to demand. The character of the deed to which the complainant is, entitled, depends upon the language of his agreement, which is to convey “ by deed with usual covenants."

If the defendant intended to rely upon a well settled local usage, by the aid of which his contract Was to be interpreted, it was incumbent upon him to show it. No such attempt is made, either in his answer or by the evidence. On the contrary, the defendant, in his answer, relies upon the true construction to be given to the terms of his agreement. It is shown, moreover, by two of the complainant’s witnesses, tliat the deed which the defendant was requested to execute, contained the usual covenants.

Upon an agreement for “usual covenants” in a lease, owing to the great variety of local usages respecting the terms of leases, it is sometimes referred to a master to inquire what are usual covenants. Henderson v. Hay, 3 Bro. Ch. R. 532, note; Boardman v. Mostyn, 6 Vesey 467; 1 Hovenden's Sup. 616.

And where a controversy arises as to what are the usual covenants in deeds in a given locality, the same practice may perhaps with propriety be adopted. But upon the pleadings and proofs in this case, 1 see no propriety in such reference.

The complainant, is entitled to a decree.