Cole v. Hawes

2 Johns. Cas. 203

Opinion

Per Curiam.

The suit is on a covenant in a deed, that the defendant was seised of the premises, and had a right to convey. The plea states, that the defendant warranted the land against all but the lord of the soil, and that as against all but the lord of the soil, he was well seised, &c.

The last covenant explains the first; and in construing, them, both must be taken together. The deed itself declares, that there existed, distinct from the grantor, a lord of the soil. This was explicitly told to the grantee, by the deed. It is not to be supposed that the defendant would, in one line, covenant absolutely that he was seised, when he admitted, and it was so understood by both parties, that there was a lord of the soil, and when, in the next line, the defendant only warranted against all, except the lord of the soil. This exception was manifestly intended to apply to both covenants. The spirit of the agreement, and good sense, as well as justice, require such a construction.

We are, therefore, of opinion, that the defendant is entitled to judgment.

Judgment for the defendant.(a)

Footnotes

a

(a) Exposition must be upon the whole instrument, ex antecedentibus el consequentibus, and according to the reasonable sense and construction of the words. Per Lord Ellenborough in Iggulden v. May, 7 East, 241. Trenchard v. Hoskins, Winch, 93. Doe d. Spencer v. Godwin, 4 M. & S. 265. Barton v. Fitzgerald, 15 East, 541. Doe d. Bish v. Keeling, 1 M. & S. 95. Sicklemore v. Thistleton, 6 ibid. 12. Earl of Clanrickarde’s case, Hob. 275, 277 Noke’s case, 4 Co. 81, a. Kingston v. Preston, 2 Doug. 689. Pigot v. Bridge, 1 Vent. 292. Ferrers v. Newton, 1 Sid. 312. Foord v. Wilson, 2 Moore, 592. Glazebrook v. Woodrow, 8 T. R. 370. Watchman v. Crook, 5 Gill & Johns. 239. Ludlow v. M’Crea, 1 Wend. 228. Marvin v. Stone, 2 Cowen, 781. Quackenboss v. Lansing, 6 Johns. 49. Thus Plowden says, the scope and end of every matter is principally to be considered; and if the scope and end of the matter be satisfied, then is the matter itself and the intent thereof also accomplished. Plowd. 18, cit. per Lord Ellenborough, 8 East, 89. Lord Hobart also coincides in th6 same views, saying, the law, being to ju.dge of an act, deed, or bargain, consisting of divers parts, containing the will and intent of the parties, all tending to one end, doth judge of the whole, and gives every part his office to make up that intent, and doth not break the words in pieces. Hob. 275. Eor the general rules in relation to the construction of covenants; see 1 Bouvier’s Law Dic. tit. Construction and references ; 2 Bl. Com. 379; 2 Com. on Cont. 23 to 28; 3 Chit. Com. Law, 106 to 118 ; Poth. Oblig. P. 1, c. 1, art. 7; 2 Evan’s Poth. Ob. 35; Long on Sales, 106 ; 1 Fonb. Eq. 145, n.b ; Ib. 440, n. 1; Whart. Dig. Contract, F.; 1 Powell on Contr. 370 ; Shepp. Touchst. c. 5 ; Louis. Code, art. 1940 to 1957; Com. Dig. Merchant, (E. 2,) n. (j) ; 8 Com. Dig. tit. Contract, iv.; Lilly’s Reg. 794; 18 Vin. Abr. 272, tit. Reference to Words; 16 Vin. Abr. 199, tit. Parols; Hall’s Dig. 33, 339 ; 1 Ves. Jun.210, n.; Vattel, B. 2, c. 17 ; Chit. Contr. 19 to 22; 4 Kent, Com. 419 ; Story’s Const. § 397-456 ; Ayl. Pand. B, 1, tit. 4 ; Rutherf. Inst. B. 2, c. 7, §4-11; 20 Pick. 150 ; 1 Bell’s Com. (5th ed.) 431. See also 2 Steph. Nisi Prius, 1053, et seq.; 1 United States Dig. 675, et seq.; where numerous authorities can be found in support of the principle of Cole v. Hawes.