Gates v. Caldwell

7 Mass. 68

Opinion

Curia.

The objection is to the declaration, and in a point of form only; it being contended, that as there were express covenants in the deed, it was not competent for the plaintiff to declare upon an implied covenant. We do not understand, however, that the declaration rests upon an implied covenant; but that the plaintiff has spread out at length what he apprehends to be the legal effect and operation of the express covenant; and this he has a right to do, although in this case it seems not to have been necessary.

But we do not admit that there can be no covenants in law, or implied covenants in deeds which contain express covenants. There can be none contradictory to express covenants, but there may be implied covenants, which are consistent with those expressed in the deed. The plea in bar is bad and insufficient, and judgment must be entered for the plaintiff.