Phelps v. Johnson

8 Johns. 54

Opinion

Per Curiam.

The covenant by the intestate with one of the defendants, to procure and cancel the notes given by both the defendants, was a covenant enuring to the benefit of both; and though Otis Johnson could not maintain a suit upon it in his own name, seeing it was not a parol promise, but by specialty, yet he had undoubtedly an equitable interest in it, and would be entitled to use the name of Isaac Johnson, as a trustee for his interest in the covenant. The validity of such an equitable interest was recognised so long ago as the case of Offly v. Warde ; (1 Lev. 235.) and since that time, the courts of law have regarded, and will now give effect to the interest of a cestuy que trust, in a covenant or other specialty. Taking the bond and mortgage of Isaac Johnson was not an extinguishment of the sealed notes; (l Anst. 111.) but the covenant made with Isaac Johnson for the benefit of him and Otis Johnson, that the intestate would “ procure .and cancel the notes,” amounted to a release. This construction is requisite to avoid circuity of action; tor if, instead of cancelling the notes, the mtestate or his representatives should put them in suit, and should recover, the defendants would be entitled to recover back, under this covenant, precisely the same damages which they might sustain by reason of the suit. It ' is, therefore, equally just and reasonable that the covenant should be construed according to its real force and effect. The case in this court of Cuyler v. Cuyler, (2 Johns. Rep. 186.) and the general language of the books, establishes the same doctrine.

The defendants are, therefore, entitled to judgment.

Judgment for the defendants.