of the increase of a sentence, if that provision was ever in force in this country. Swaim v. United States, 165 U. S. 553, 17 Sup. Ct. Rep. 448, 41: 823 66. The arrest referred to in U. S. Rev. Stat. § 1624, art. 43 (U. S. Comp. Stat. 1901, p. 1117), as the time when the person accused is to be furnished with a copy of the charges and specifications on which he is to be tried by a naval court-martial, is not the preliminary arrest or detention while awaiting the action of higher authority to frame charges and specifications and .order the court-martial, but is the arrest resulting from the preferring of the charges by the proper authority and the convening of the court-martial. United States v. Smith, 197 U. S. 386, 25 Sup. Ct. Rep. 489, 49: 801 67. The copy of charges against a naval officer, which, together with the specifications, must be served, under the Naval reg. ulation act of April 23, 1800, art. 38 (2 Stat. at L. 50, 51, chap. 33), on a person sought to be court-martialed, "at the time he is put under arrest," need not be served when he is placed under arrest as a temporary precaution for the preservation of good order and for further investigation, but the service is in time, where he has been released from such arrest and returned to duty, conform ably to the Navy Regulations of 1865, § 1202, when made on the day of his rearrest. Bishop v. United States, 197 U. S. 334, 25 Sup. Ct. Rep. 440, 49: 780 Cited in United States v. Smith, 197 U. S. 392, 49 L. ed. 802, 25 Sup. Ct. Rep. 489. e. What Precludes Further Proceed ings. COVENANT. I. Construction, 1-15. II. Effect Generally, 16-21. III. Breach; Enforcement; Who Liable, 22-33. a. In General, 22. b. What Constitutes a Breach, 2331. c. Who Liable or Bound, 32-3. IV. Running with the Land, 34-6. V. Extinguishment of, or Discharge from Covenant, 37. VI. Action of Covenant, 38-9. Prerequisite to Action by Evicted Grantee, see Action or Suit, 30. Right to Join Actions of Covenant and Assumpsit, see Action or Suit, 69. Sufficiency of Seal to Covenant made in other State, see Conflict of Laws, 33. Incorporating Covenant into Sealed Instrument by Construction, see Contracts, 241. Merger of Simple Contract into Covenant In Lease, see Landlord and Tenant, II. b. Demanding Oyer of Deed in Action for Performance of, see Pleading, 302. Restrictions as to Use of Property by Conditions Subsequent, see Real Property, I. a, 2. Use of Word "Proviso" to Establish, see Real Property, 10. Admissibility of Evidence in Action on Cove nant of Seisin, see Evidence, 2624. On Sale of Vessel, see Shipping, 56. Specific Performance of Covenant as to Location of Depot, see Specific Performance, 29. 68. The suspension of a naval officer charged with drunkenness and neglect of duty, from morning until evening of the same day, when he was restored to duty to give "time to investigate the case," is not such a punishment for the offense as precludes, under the Navy Regulations of 1865, 1205, further proceedings against him by court-martial, but must be deemed simply a temporary precaution for the preservation of good order and discipline. Bishop v. United States, 197 U. S. 334, 25 Sup. Ct. To Rep. 440, 49: 780 69. A person is not twice put in jeopardy within the meaning of U. S. Const. 5th Amend. by a sentence of an army courtmartial imposing both fine and imprisonment upon an army officer convicted of two charges of violating the 60th article of war, one of which charges a conspiracy to de fraud the United States and the other the causing of false and fraudulent claims to be made against the United States, even if the punishment prescribed by such article to violations of its provisions is confined to fine, or imprisonment in the alternative, as such charges are separate and distinct of fenses, although they relate to and grew out of one transaction. Carter ex rel. Carter v. McClaughry, 183 U. S. 365, 22 Sup. Ct. Rep. 181, 46: 236 Subrogation to Rights against Warrantor, see Subrogation, 23. Vendor Not Responsible for Defects in Title Beyond Covenants in Deed, see Vendor and Purchaser, II. c. Surrender and Cancel Previous Contract, see Vendor and Purchaser, 14. whole instrument. Pollak v. Brush Electric [ an agreement to do or not to do some act. 26: 732 Asso. 128 U. S. 446, 9 Sup. Ct. Rep. 119, Hale v. Finch, 104 U. S. 261, Distinguished in Clark v. Harmer, 5 App. D. C. 119. 32: 474 Loud v. Pomona Land & Water Co. 153 U. 112 Cal. 461, 44 Pac. 796-Johnson v. Kurtz, 97 Tenn. 511, 37 S. W. 222-Barnes Bros. v. Black Diamond Coal Co. 101 Tenn. 357, 47 2. Covenants of a contract are concurrent or reciprocal, where the vendor is not bound to convey unless the money be paid, nor the purchaser bound to pay unless the vendor can convey a good title, free of encumbrance. Turner v. Ogden (Washington v. Ogden) 1 Black, 450, 17: 203 Cited in Wellman v. Dismukes, 42 Mo. 106. 2a. When one act is to be done by one party before another act, which is the consideration of it, is to be done by the other, the covenants are dependent, because the first act is a condition precedent to performance of the other. New Orleans v. Texas & P. R. Co. 171 U. S. 312, 18 Sup. Ct. Rep. 875, 43: 178 Cited in Huggins v. Daley, 48 L.R.A. 323, 40 C. C. A. 16, 99 Fed. 610. 3. A covenant will not be construed to be several by reason of several interests, if it be expressly joint. This is not merely a technical rule which does not affect the merits. Farni v. Tesson, 1 Black, 309, 17: 67 Cited in Van Orden v. Nashville, 67 Fed. 333 Davis V. Wannamaker, 2 Colo. 639-St. Louis, A. & R. I. R. Co. v. Hawk, 33 Ill. 193 -Burns v. Follansbee, 20 I. App. 43Montana Min. Co. v. St. Louis Min. & Mill. Co. 19 Mont. 316, 48 Pac. 305. 3a. When mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other. Lowber v. Bangs, 2 Wall. 728. 17: 768 Cited in Kauffman v. Raeder, 54 L.R.A. 253, 47 C.C.A. 286, 108 Fed. 179-Palmer v. Meriden Britannia Co. 188 Ill. 523, 59 N. E. 247. 4. Although words of proviso and condition may be construed as words of covenant, if such be the apparent intent and meaning of the parties, yet they will not be so construed unless it can be collected from the whole instrument that there was, on the part of the person sought to be charged, Cited in United States v. Stanford, 69 Fed. 39 Barker v. Pullman's Palace Car Co. 124 Fed. 560-Barker v. Pullman Co. 67 C. C. A. 197, 134 Fed. 71-Rhinelander v. Farmers' Loan & T. Co. 172 N. Y. 54, 65 N. E. 4009– Hammond v. Port Royal & A. R. Co. 16 S. C. 573. 5. The condition in a railroad land grant that it shall revert to the grantor on nonuse for railroad purposes is not a covenant to build the road through the land, or continue there. Hoard v. Chesapeake & O. R. Co. 123 U. S. 222, 8 Sup. Ct. Rep. 74, 31: 130 6. The covenant of warranty and that of seisin or of right to convey are not equivalent covenants. Defect of title will sustain an action upon the latter, while disturbance of possession is requisite to recover upon the former. Douglass v. Lewis, 131 U. S. 75, 9 Sup. Ct. Rep. 634, 33:53 without the word "heirs," can pass only a Possession as Evidence that Recovery 12. Where the grantors covenant generally against encumbrances made by them, it may be construed as extending to several as well as joint encumbrances. Duvall v. Craig, 2 Wheat. 45, 4: 180 Warranty. In Judicial Sales, see Judicial Sale, 83, 84. Implied Covenant of, in Lease, see Landlord and Tenant, 14, 15. Implied Warranty on Sale of Land, see Sale, 99. Right of Vendee to Security for Fulfilment of, see Vendor and Purchaser, 32. Effect of Knowledge by Purchaser of Defect in Title, see Vendor and Purchaser, 76. See also supra, 6; Estoppel, 57. 13. [A special warranty in a deed will not control a preceding general one, where the whole deed plainly shows the general one was intended. Bender v. Fromberger (Pa. Sup. Ct.) 4 Dall. 436, 1: 898] 14. The covenant "to warrant and defend" property for which a quitclaim deed is executed, "against all claims, United States excepted, does not cover the interest of the United States, nor preclude the acquisition of that interest by the covenantors or their heirs for themselves. Davenport v. Lamb, 20: 655 13 Wall. 418, under a covenant to convey whenever the purchase money should be paid. Prout v. Roby, 15 Wall. 471, 21:58 17. The introduction, into a deed, of an express covenant of warranty, has the effect to deny to the purchaser the benefit of the statutory covenant of seisin, under the laws of Mexico. Douglass v. Lewis, 131 U. S. 75, 9 Sup. Ct. Rep. 634, 33: 53 Cited in Dun v. Dietrich, 3 N. D. 7, 53 N. W. 81-Milot v. Reed, 11 Mont. 570, 29 Pac. 343. 18. The covenant for quiet possession, in a deed, merges all previous representations as to the possession, and limits the liability growing out of them. Andrus v. St. Louis Smelting & Ref. Co. 130 U. S. 643, 9 Sup. Ct. Rep. 645, 32: 1054 Cited in Wright v. Phipps, 90 Fed. 571-Alger v. Anderson, 92 Fed. 713-Cole v. Smith, 26 Colo. 513, 58 Pac. 1086-Watson v. Heyn, 62 Neb. 195, 86 N. W. 1064-Daly v. Bernstein, 6 N. M. 391, 28 Pac. 764. 19. Where a vendor holding in good faith under an instrument purporting to transfer the premises to him, or under a judicial determination of a claim to them in his favor executes a conveyance to the purchaser, with a warranty of title and a covenant for peaceable possession, his previous representations as to the validity of his title or his right of possession are mere expressions of confidence in his title, and are merged in the warranty and covenant, which determine the extent of his liability. Andrus v. St. Louis Smelting & Ref. Co. 130 U. S. 643, 9 Sup. Ct. Rep. 645, 32: 1054 20. A covenant that, if the grantors "obtain the fee simple" to property conveyed "from the government of the United States, they will convey the same" to the grantee, his heirs, or assigns, "by a deed of general warranty," only takes effect in case the grantors acquire the title directly from the United States, and does not cover the acquisition of the title of the United States from any intermediate party. Davenport v. Lamb, 13 Wall. 418, 20: 655 21. A grantee whose deed is subject to a condition that he shall "perform his part of the settling duties in proportion" is bound by a condition in the deed to his grantor for placing settlers on a part of the tract conveyed, to be set apart for that purpose; and a mortgage by a second grantee is subject to such condition. Foxcroft v. Mallett, 4 How. 353, 11: 1008 Election of Remedy in Case of Breach, see Election of Remedies, 10. Judgment in Ejectment as Proof of Para- Allegations in Action for Breach, see Plead- Sufficiency of Plea in Action for Breach, see See also supra, 8; infra, 35, 37. ed. 92-Dickson v. Briggs, 12 Ala. 220Mitchell v. Warner. 5 Conn. 522-Beebe v. Swartwout, 8 Ill. 181-Whitney v. Dinsmore, 6 Cush. 129-Marston v. Hobbs, 2 Mass. 439, 3 Am. Dec. 61-Allis v. Nininger, 25 Minu. 527-Surget v. Arighi, 11 Smedes & M. 97, 49 Am. Dec. 46-Dennis v. Heath, 11 Smedes & M. 218, 49 Am. Dec. 51-Glenn v. Thistle, 23 Miss. 51-Daggett v. Ayer, 65 N. H. 83, 18 Atl. 169-Beddoe v. Wadsworth, 21 Wend. 125-Shattuck v. Lamb, 65 N. Y. 509, 22 Am. Rep. 656-Grist v. Ilodges, 14 N. C. (3 Dev. L.) 201-Hodges v. Latham, 98 N. C. 243, 2 Am. St. Rep. 333, 3 S. E. 495-Hodges v. Wilkinson, 111 N. C. 60, 17 L.R.A. 545, 15 S. E. 941-Randolph v. Meek, Mart & Y. 62 -Sheffey v. Gardiner, 79 Va. 317-Rex v. Creel, 22 W. Va. 375-McConaughey v. Bennett, 50 W. Va. 184, 40 S. E. 540. 26. Under a statute of Wisconsin, where there is an adverse possession, by virtue of a paramount title, of lands conveyed, such possession is regarded as an eviction and a breach of the covenant of warranty. But where the paramount title is in the warrantor, and the adverse possession tortious, it is no eviction, and no action will lie on the covenant. Noonan v. Braley (Noonan v. Lee) 2 Black, 499, 17: 278 Cited in Peters v. Bowman, 98 U. S. 59, 25 L. ed. 92-McGary v. Hastings, 39 Cal. 367, 2 Am. Rep. 456-Tierney v. Whiting, 2 Colo. 623-Ogden v. Ball, 40 Minn. 97, 41 N. W. 453-Daggett v. Ayer, 65 N. H. 83, 18 Atl. 169-Shattuck v. Lamb, 65 N. Y. 515, 22 Am. Rep. 656-Sheffey v. Gardiner, 79 Va. 318. 23. If the present occupant of land conveyed holds by a paramount title, and thus 27. Where one has been judicially delawfully excludes the purchaser from posses-clared not to be entitled to land by the sion, the covenant for quiet possession is decree of the supreme court, that, of itself, broken; but such is not the case if the occu-is an eviction under the law of Louisiana. pation is without right, as the purchaser Flowers v. Foreman, 23 How. 132, 16: 405 may dispossess the occupant. Andrus v. St. Louis Smelting & Ref. Co. 130 U. S. 643, 9 Sup. Ct. Rep. 645, 32: 1054 16: 405 28. In Louisiana it is not necessary, to constitute an eviction, that the purchaser of 24. A covenant of seisin is broken, if at land should be actually dispossessed. Flowall, at the time of conveyance; no evictioners v. Foreman, 23 How. 132, is necessary to give a right of action upon 29. An eviction in Louisiana may take it. Pollard v. Dwight, 4 Cranch, 421, place when the vendee continues to hold the 2: 666 property under a different title from that Le Roy v. Beard, 8 How. 451, 12: 1151 transferred to him by his vendor. Flowers Peters v. Bowman, 98 U. S. 56, 25: 91 v. Foreman, 23 How. 132, 16:405 Cited in Le Roy v. Beard, 8 How. 465, 12 L. 30-1. In Louisiana, when a testamentary ed. 1158-Wright v. Phipps, 90 Fed. 567Bird v. Smith, 8 Ark. 372-Mitchell v. executor, with full seisin of the testator's Warner, 5 Conn. 503-Gale v. Frazier, 4 estate, submitted to the title of others, Dak. 202, 30 N. W. 138-Fitzhugh which had been established by judicial deCroghan, 2 J. J. Marsh. 438, 19 Am. Dec.cision, and paid them for it, that was an 139-Marston v. Hobbs, 2 Mass. 439, 3 Am. Dec. 61-Lowry v. Hurd, 7 Minn. 362, Gil. 282-Furman v. Elmore, 2 Nott & M'C. 195 V. Talbot v. Bedford, Cooke (Tenn.) 458 Robinson v. Coulter, 90 Tenn. 707, 25 Am. St. Rep. 708, 18 S. W. 250-Curtis v. Brannon, 98 Tenn. 157, 69 L.R.A. 762, 38 S. W. 1073-Waddill v. Sebree, 88 Va. 1016, 29 Am. St. Rep. 766, 14 S. E. 849-Kinzie v. Riely, 100 Va. 717, 42 S. E. 872. 25. An eviction under an elder title is not always necessary to sustain an action on a Covenant against encumbrances. If the grantee cannot obtain possession on account of a person claiming and holding under an elder title, it is equivalent to an eviction. Duvall v. Craig, 2 Wheat. 45, 4: 180 Cited in Peters v. Bowman, 98 U. S. 59, 25 L. eviction which gave to him a right of action in behalf of the succession against the warrantors of his testator, and this right passed to the heirs of the testator when the succession duly came to their hands. Flowers v. Foreman, 23 How. 132, 16: 405 c. Who Liable or Bound. Married Woman, see Husband and Wife, 8. Conclusiveness against Warrantor of Judg ment against Possessor, see Judgment, 767, 777. Liability of Receiver on, see Receivers, 67. 32. Covenants in a tripartite agreement between two railroad companies and park commissioners, binding one company to per- 1 Oral Agreement to Release from, see Conmit the use of its line on certain conditions tracts, 612. by other companies, are binding upon sub-Discharge of Warrantor, see Judgment, sequent purchasers with notice from the 1097. other company which was a party to the To Assume Mortgage Debt, Laches as Bar agreement, and whose title and interest were acquired under such agreement, and another contract therein referred to. Joy v. St. Louis, 138 U. S. 1, 11 Sup. Ct. Rep. 243, to Relief, see Limitation of Actions, 154. 37. A recovery of damages for a breach of a covenant of warranty in a conveyance 34: 843 by the grantee of a railroad company of Cited in South & North Ala. R. Co. v. High-lands selected by it as indemnity lands, land Ave. & Belt R. Co. 117 Ala. 402, 23 So. which were open only to pre-emption and 973-Whittenton Mfg. Co. v. Staples, 164 homestead entry, cannot be defeated by a Mass. 327, 29 L.R.A. 503, 41 N. E. 441-contention that the Land Department, which Southern R. Co. v. Franklin & P. R. Co. 96 had canceled such selection and patented the Va. 705, 44 L.R.A. 302, 32 S. E. 485. land to another party, was without power to make such cancelation because no notice had been given to the railroad company's transferees. Clark v. Herrington, 186 U. S. 206, 22 Sup. Ct. Rep. 872, 33. Whether or not a mortgagee of a leasehold interest, remaining out of posses sion, is liable upon the covenants of the lease, not decided. Calvert v. Bradley, 16 How. 580, 14: 1066 35. The covenant of warranty runs with the land and passes by assignment. When broken it becomes a chose in action. A subsequent grantee may sue the warrantor. A sheriff's or a quitclaim deed will carry the covenant before its breach to the grantee. Peters v. Bowman. 98 U. S. 56, 25: 91 Cited in Wright v. Phipps, 90 Fed. 562-Curtis v. Brannon, 98 Tenn. 157, 69 L.R.A. 762, 30 S. W. 1073. 36. A condition or charge on land as an encumbrance, which is made such by the very terms of the deed, attaches to the land wherever it goes. Foxcroft v. Mallett, 4 How. 353, Editorial note. 11: 1008 VI. Action of Covenant. 46: 1128 519. See also supra, 6; Assumpsit, 8. 38. An action of covenant on a contract to recover the price of articles delivered under it may be brought, although there has not been full performance, where that which [Covenant as to party wall, running with has been delivered has been accepted in part the land. 2 L.R.A.(N.S.) 87.] V. Extinguishment of, or Discharge from, Covenant. performance and further performance has 39. A verbal agreement between the parties to a deed, made at the time of the delivery or previous thereto, that one of them Discharge in Bankruptcy while Outstanding should be released from the covenants conEncumbrance was Contingent, see Bank-tained in the deed, cannot defeat an action ruptcy, 412. for an alleged breach of those covenants. Wadsworth v. Warren, 12 Wall. 307, Effect of Discharge in Bankruptcy on Cove nant of Warranty, see Bankruptcy, 410.| 20: 402 |