COUSIN. See "First Cousin"; "Second Cousin." "Cousin," as used by a testator in giving legacies to cousins and children of cousins, means first cousins. Caldecott v. Harrison, 9 Sim. 457, 461. seal. Petty v. Trustees of Church of Christ. 70 Ind. 290, 297 (citing Whart. Law Dict.). It is a written agreement under seal, in the nature of a deed between two or more par ties. Northrup v. Northrup (N. Y.) 6 Cow. 296, 297. It is a contract or agreement to do or suffer a particular thing, evidenced by a writing, under seal, sometimes defined as a "contract by deed." Benson v. Hobbs (Md.) 4 Har. & J. 285. It is an "agreement or consent of two or more by deed in writ Where a will provided that "my aunt C. and my cousins [naming seven persons] shall take an equal share" in certain real estate, the word "aunt" and the word "cousins" willing, sealed and delivered, whereby either one be regarded as merely descriptive of the persons named, for the purpose of identification, and not as indicating a class. Moffett v. Elmendorf, 46 N. E. 845, 847, 152 N. Y. 475, 57 Am. St. Rep. 529. COUSINS-GERMAN. "Cousins-german," as used in a bequest to testator's first cousins or cousins-german, is synonymous with "first cousins," and in the dictionaries both are explained as meaning children of a brother or sister. Thus, in Chambers' edition of Johnson: "The children of brothers and sisters are called 'cousinsgerman,' the only sense in which the phrase is now used." So in Boniface's French Dictionary: "First cousins; cousins-german; children of brothers and sisters." So in Ainsworth, under "Patruelis": "A cousin-german by the father's side; a father's brother's son." It does not conclude the descendants of first cousins. Sanderson v. Bayley, 4 Myl. & C. 56, 59. COVE LANDS. . Land flowed by the tide in 1870 would naturally fall within the designation of "cove lands"; for that is what the cove originally was. Murphy v. Bullock, 37 Atl. 348, 349, 20 R. I. 35. COVENANT. See "Concurrent Covenants"; "Dependent Covenant"; "Express Covenant"; "Implied Covenants"; "Independent Covenant"; "Joint Covenant"; "Mutual Covenants"; "Negative Covenant"; "Personal Covenant"; "Real Covenant"; "Usual Covenants." A covenant is an agreement duly made between the parties to do or not to do a particular act. Johnson v. Gurley, 52 Tex. 222, 226 (citing Tayl. Landl. & T. § 245); Georgia Southern R. Co. v. Reeves, 64 Ga. 492, 494. It is a promise under seal. Greenleaf v. Allen, 127 Mass. 248, 253; Cheney v. Straube, 53 N. W. 479, 480, 35 Neb. 521; Johnson v. Hollensworth, 48 Mich. 140, 142, 11 N. W. 843; Kelley v. Palmer, 42 Neb. 423, 426, 60 N. W. 924; Kennedy v. Howell, 20 Conn. 349, 352; Bull v. Follett (N. Y.) 5 Cow. 170, 172. It is an agreement in writing, under 2 WDS. & P.-44 of the parties doth promise to the other that something is done already or shall be done afterward." Commonwealth V. Robinson (Pa.) 1 Watts, 158, 160 (citing Jacob, Law Dict. and Shep. Touch.); Kent v. Edmondston, 49 N. C. 529-531 (citing Shep. Touch. 160). It is an agreement between two or more parties, reduced to writing and executed by a sealing and delivery thereof, whereby some of the parties named therein engag ed, or one of them engages with the other or others, or some of them therein also named, that some act hath or hath not already been done, or for the performance or nonperformance of some specified duty. De Bolle v. Pennsylvania Ins. Co. (Pa.) 4 Whart. 68, 71, 33 Am. Dec. 38; Benbury v. Benbury, 22 N. C. 235, 238. It is an agreement, convention, or promise of two or more parties, by deed in writing, signed and delivered, by which either of the parties pledges himself to the other that something is either done or shall be done, or stipulates for the truth of certain facts. Sabin v. Hamilton, 2 Ark. (2 Pike) 485, 490; Wright v. Tuttle (Conn.) 4 Day, 313, 321. As any contract. In Rev. St. art. 649, relating to counterclaims, and providing that if the suit be founded on a certain demand the defendant shall not be permitted to set off unliquidated or uncertain damages founded on a tort or breach of covenant on the part of the plaintiff, the word "covenant" is not used in its limited and technical sense of a promise evidenced by a sealed instrument, but in its wider signification of a contract in general. Riddle v. McKinney, 2 S. W. 748, 749, 67 Tex. 29. Plaintiff issued a summons in debt "on a verbal promise and covenant," and filed a statement, agreeable to Act March 21, 1806, § 5, regulating arbitration and proceedings in courts of justice, setting forth a verbal promise only for the payment of money. It was held that although the act did not embrace actions founded on technical covenants, yet the word "covenant," used in this instance, did not vitiate the statement, but might be rejected as surplusage, or understood according to its acceptation among persons unlearned in the law, and construed to mean a verbal covenant, which signifies no more than a verbal promise. Dixon v. Sturgeon (Pa.) 6 Serg. & R. 25, 28. Agree synonymous. See "Agree." lett v. Wylie (N. Y.) 3 Johns. 44, 48, 3 Am Dec. 457. "A covenant can only be created by deed, but may be by a deed poll (the party "Condition Subse- named in the deed) as well as by indenture; Condition distinguished. quent." Creation. There is no fixed or essential form for a covenant. In ordinary deeds of conveyance several averments are generally contained. Each covenant may constitute a separate sentence, and a single promise may embody the substance of several covenants. Johnson v. Hollensworth, 48 Mich. 140, 142, 11 N. W. 843. A covenant may be created by any words expressing the intention of the parties, and no precise or formal terms are necessary to constitute a covenant more than any other agreement. Bull v. Follett (N. Y.) 5 Cow. 170, 172; Wright v. Tuttle (Conn.) 4 Day, 313, 321. Any words in a sealed instrument by which a party manifests an intention to do or not to do an act, either by himself or a third person, if the act be lawful, will make a covenant. Hambly v. Delaware, M. & V. R. Co. (U. S.) 21 Fed. 541, 551. and where lands are conveyed by indenture to a person who does not seal the deed, yet if he enters upon the land and accepts the deed in other matters, he will be bound by the covenant contained in it." Tayl. Landl. & T. § 245. Where a grantor, in consideration of certain cash and of the building of a railroad, conveyed to the railroad company a right of way through his land, by a deed reciting that a depot and station was to be located and given to the grantor on the land conveyed, to be permanently located for the benefit of him and his assigns, and to be used for the general purposes of the railroad company, the company, by accepting such deed, entered into a covenant to comply with its terms, which covenant ran with the land, and became obligatory upon any second company purchasing all the rights, privileges, franchises, and property of the former company. Georgia Southern R. Co. V. Reeves, 64 Ga. 492, 494. Same-Writing. While there may be no substantial difference between sealed and unsealed instruments as matters of evidence, there is no such thing as a "covenant," in legal parPetty v. lance, which is not in writing. Trustees of Church of Christ, 70 Ind. 290, 297. "No particular form of words is necessary to constitute a covenant. Any words will be effectual which show that the parties to the deed have concurred and assented to the performance or forbearance of a future act, or which show that the vendor has stipulated as to the quantity or quality of prop- The word "covenant" as used in a comerty sold by him." Minge v. Smith, 1 Ala. | plaint on a lease, relative to a covenant of 415, 417. insurance, must be considered as intended and understood by the pleader in the sense of a written promise and not referring to State Bank (N. D.) 96 N. W. 588, 589. any parol agreement. Johnson v. Kindred "Any words in a deed which show an agreement to do a thing make a covenant, but where words do not amount to an agree ment covenant does not lie, as if they are merely conditional to defeat the estate, as a lease on condition that the lessee collect and pay the rents of his other houses. There need not be any formal words, as 'covenant,' 'promise,' and the like, to make a covenant on which to ground an action of covenant, for a covenant may be had by any other words. Words of proviso and condition will be construed into the words of covenant when such is the apparent intention and meaning of the parties." Hale v. Finch, 104 U. S. 261, 268, 26 L. Ed. 732. Any words in an instrument, under the hand and seal of the party, importing an agreement, will be sufficient to create a covenant on which an action will lie. It is said that where a man transfers and assigns a chose in action, though nothing passes thereby, yet it amounts to a covenant that the other shall have the thing, and an acknowledgment to be accountable for money is held to be a covenant. Kendal v. Talbot, 5 Ky. (2 Bibb) 614 (citing 1 Bac. Abr.); Hal Same-Seal, A covenant is a promise, and something more. It is a promise under seal. If the seal affixed is not that of the party who substantially makes the promise and who is to be charged by it, the promise remains, and is not changed in a contract of a proper nature. Cram v. Bangor House Proprietary, 12 Me. (3 Fairf.) 354, 358. The word "covenant" or "agreement" does not import a sealed instrument, as does the word "deed," "indenture," or "writing obligatory." There is a distinction between "covenants in deed" and "covenants in law," and to show that it is the former an express averment is necessary. An allegation in a declaration that the parties made their covenant, without alleging that they sealed it, is not sufficient, although the covenant is set out in hæc verba, including the words "wit ness our hands and seals." Hays v. Lasater, 3 Ark. (3 Pike) 565, 568. Gen. Laws, c. 202, § 4, provides that no seal shall be required on an instrument conveying land, and that the word "covenant" shall have the same effect as though a seal had been affixed. It was held that the word "covenant" as used in the statute must have been in the sense of an obligation assumed, and not that if the word "covenant" appeared anywhere in the instrument it thereby determines the form of the obligation, without reference to its significance or application; that the statute in its true meaning is to apply only to cases where a party has expressly assumed the covenant, as by the words "I covenant," etc., where "covenant" is the operative word; and hence, where the operative words in a contract are "agree," "agreement," etc., the use of the word "covenant" in a clause, "in consideration of the faithful performance of the foregoing covenants by the party of the first part," etc., the word "covenant" does not make the instrument a specialty. Providence Telegram Pub. Co. v. Crahan Engraving Co., 52 Atl. 804, 805, 24 R. I. 175. Interpretation. A covenant is simply a contract of a special nature, and the primary rule of interpretation thereof is to gather the intention of the parties from their words by reading, not simply a single clause of the agreement, but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met. Clark v. Devoe, 124 N. Y. 120, 124, 26 N. E. 275, 276, 21 Am. St. Rep. 652. See, also, Stubbs v. Page, 2 Me. (2 Greenl.) 378, 381, and Perry v. Rice, 10 Tex. 367, 371. Kinds. Covenants are either dependent and concurrent, or mutual and independent. The first depends on the prior performance of some act or condition, and until the condition is performed the other party is not liable to an action on his covenant. In the second, mutual acts are to be performed at the same time, and if one party is ready and offers to perform his part, and the other neglects or refuses to perform his, he who is ready and offers has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act. The third sort is where either party may recover damages from the other for the injury he may have received by breach of the covenants in his favor, and it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff. Bailey v. White, 3 Ala. 330, 331; Hambly v. Delaware, M. & V. R. Co. (U. S.) 21 Fed. 541, 551, 553; Jones v. Barkley (Mich.) 2 Doug. 684, 690, 691; Northrup v. Northrup (N. Y.) 6 Cow. 296, 297. Covenants in deeds are to be considered dependent or independent, according to the intention of the parties and the good sense of the case, and technical words should give way to such intention. Bream v. Marsh (Va.) 4 Leigh, 21, 25. The former are such as are annexed to an Covenants are either real or personal. estate or are to be performed on it, and are said to run with the land, so that he who has the one is subject to the other. A covenant by a lessee to pay rent, and to furnish the lessor with gas to heat and light the dwelling on the demised premises, was a covenant running with the land. Indiana Natural Gas & Oil Co. v. Hinton, 64 N. E. 224, 225, 159 Ind. 398. As liability. See "Liability." COVENANT (Action of). "Covenant," at common law, is an actior upon a deed. It is the form of action ap plicable to a claim upon an instrument operating as a deed, although such instrument is not under seal. Where an agreement involving the sale and purchase of lands used throughout the word "covenant," purported to bind the heirs of the respective parties as well as their personal representatives, and was declared to be "the act of the parties, in witness whereof," and they thereunto set their hands and seals, it operated as a deed, although no actual seal or scroll was affixed, and covenant was the proper action thereon. Jerome v. Ortman, 66 Mich. 668, 669, 33 N. W. 759. "Covenant" is a remedy recognized by law for the recovery of damages for the breach of a covenant or contract under seal. Stickney v. Stickney, 21 N. H. (1 Fost.) 61, 68. An action of covenant at common law, “though in form for the recovery of damages, is the action based on a contract under seal." State v. Harmon, 15 W. Va. 115, 124. In Jerome v. Ortman, 66 Mich. 668, 33 N. W. 759, it is held that an action of "covenant" in Michigan, as at common law, was Tp. (U. S.) 99 Fed. 202, 209, 39 C. C. A. 462. an action upon a deed. Rondot v. Rogers An action of covenant lies on a specialty exclusively, not on a specialty modified or enlarged by a simple contract. Vicary v. Moore (Pa.) 2 Watts, 451, 456, 27 Am. Dec. 323. The word "covenant" is of too general a character to be used in a record on appeal from a justice of the peace stating that the case is an action of assumpsit on covenant, but the cause of action must be specifically set out, so as to bring it within the jurisdiction of the justice. Guarantee Friendly Fund of Temperance Mut. Ben. Ass'n of Pennsylvania v. Henderson (Del.) 50 Atl. 535, 536, 3 Pennewill, 157. COVENANT AGAINST INCUMBRAN- an assurance against the consequence of a CES. As covenant running with the land, see "Covenant Running with the Land." A "covenant against incumbrances" is a stipulation against all rights to or interest in the land which may subsist in third persons to the diminution of the value of the estate, and, though consistent with the passing of the fee by deed, such covenant, if there be an incumbrance, is broken as soon as made. People's Sav. Bank Co. v. Parisette, 67 N. E. 896, 897, 68 Ohio St. 450, 96 Am. St. Rep. 672. A covenant against incumbrances is a covenant that the grantor will defend the title and possession of the grantee against all claims and liens, whether contingent or not. Shearer v. Ranger, 39 Mass. (22 Pick.) 447, 448. "A covenant against incumbrances is an assurance that the property, at the time of the ensealing and delivery of the deed, is then free therefrom." Sanford v. Wheelan, 7 Pac. 324, 328, 12 Or. 301. defective title, and of any disturbance thereupon. Kane v. Mink, 19 N. W. 852, 853, 64 Iowa, 84. At common law, from the ordinary words of grant or demise in an instrument relating to real estate, was implied a covenant that the grantor would protect the grantee from lawful interference by others in enjoying the demised premises. This is called a "covenant for quiet enjoyment." Koeber v. Somers, 84 N. W. 991, 992, 108 Wis. 497, 52 L. R. A. 512. "A covenant for quiet enjoyment gives no assurance against the wrongful eviction of the covenantee by a third person, nor does it afford any remedy for damages consequent on such an eviction." Chestnut v. Tyson, 16 South. 723, 725, 105 Ala. 149, 53 Am. St. Rep. 101. The "covenant of quiet enjoyment" is a covenant which does not necessarily imply that the covenantor has a perfect title, but is an agreement to defend the covenantee in his possession. The covenant of quiet enjoyment goes to the possession, and not to the title, and therefore to prove the breach it is COVENANT FOR FURTHER ASSUR- ordinarily necessary to give evidence of an ANCE. As covenant running with the land, see "Covenant Running with the Land." The statutory "covenant for further as surance," implied in the words "grant, bargain, and sell," embraces such incumbrances only as the offender has control of. Where the defect in the title cannot be supplied by the offender, he cannot be made liable on his covenant for further assurance. Armstrong v. Darby, 26 Mo. 517, 520. COVENANT FOR QUIET ENJOYMENT. As covenant running with the land, see "Covenant Running with the Land." Covenant of seisin distinguished, see "Covenant of Seisin." entry upon the grantee, or expulsion from, or some actual disturbance in, the possession, and this, too, by reason of some adverse right existing at the time of making the cov Christy v. Bedell, 61 Pac. 1095, 1096, 10 Kan. enant, and not of one subsequently acquired. App. 435. COVENANT IN LAW. "Properly speaking, a 'covenant in law' is an agreement which the law infers or implies from the use of certain words having a known legal operation in the creation of an estate, so that, after they have had their primary operation in creating the estate, the law gives them a secondary force by implying an agreement on the part of the grantor to protect and preserve the estate so by these words already created." Williams v. Bur Covenant of warranty as, see "Covenant rell, 1 C. B. 402, 429. of Warranty." The "covenant for quiet enjoyment" is COVENANT OF GENERAL WARRAN one of the covenants for title in a conveyance. It is also said to be an assurance consequent upon a defective title. Poposkey v. Munkwitz, 32 N. W. 35, 37, 68 Wis. 322, 60 Am. Rep. 858 (citing Rawle, Cov. 17, 125). The "covenant of quiet enjoyment" is a covenant that there will be no disturbance in or cessation of possession by the prosecution and operation of legal measures. Stewart v. Drake, 9 N. J. Law (4 Halst.) 139, 141. The "covenant for quiet enjoyment," in a lease, is for the protection of the lessee from the claims of third persons having title paramount to the lessor, and is defined to be TY. See "Covenant of Warranty." As covenant running with the land, see "Covenant Running with the Land." Covenant of seisin distinguished, see "Covenant of Seisin." been held by this court to be in substance The term "general warranty" has often equivalent to the several special covenants in use under the common law, as that one is seised of the land sold, that he has good and perfect right to convey, that the land is free from incumbrances, that the grantee shall quietly enjoy possession, and that the grantor will warrant and defend the title against all, vey, does not, if he afterwards acquires a claims of all persons. Smith v. Jones, 31 S. W. 475, 476, 97 Ky. 670 (citing Butt v. Riffe, 78 Ky. 352; Pryse v. McGuire, 81 Ky. 608). A covenant of general warranty in a deed "is usually treated as synonymous with a covenant for quiet enjoyment, since the same concurrence of circumstances is necessary to their breach. They equally possess the capacity of running with the land, and the rules as to the measure of damages are the same as to both. Rawle on Cov. 196. Such a warranty is not broken till actual eviction, or something equivalent to actual eviction." Bostwick v. Williams, 36 Ill. 65, 70, 85 Am. Dec. 385. A "general warranty" is a covenant for quiet possession. Harr v. Shaffer, 43 S. E. 89, 91, 52 W. Va. 207. A general warranty does not usually extend to defects of apparent or simple inspection, requiring no skill to discover them, nor to defects known to the buyer. Meickley v. Parsons, 23 N. W. 265, 266, 66 Iowa, 63, 55 Am. Rep. 261. COVENANT OF INDEMNITY. See "Covenant to Pay." COVENANT OF RIGHT TO CONVEY. good title, cause such title to inure to his grantee by way of estoppel. The seisin of the grantee may afterwards be divested on elder and better title, and this may subsequently be lawfully purchased by the grantor for his own use, and it will inure to the grantee, who can have no claim whatever for breach of covenant. Allen v. Sayward, 5 Me. (5 Greenl.) 227, 231, 17 Am. Dec. 221. A vendor who has given a covenant of seisin can be called upon at any time after the execution of the deed, and at the caprice of his convenantee, to make out a perfect title. Affirmatively, the covenantee is not required to prove a negative; the grantor and covenantor is bound to show that he was seised in fee at the time of executing the deed, if that issue is made. The covenant of seisin is a covenant in præsenti, and if the grantor had no title it was broken as soon as made. It is an affirmative covenant, and the party making it must establish it. The onus is upon him. Baker v. Hunt, 40 Ill. 264, 266, 89 Am. Dec. 346. As covenant of title or possession. The words have come to be looked upon less as one of the parts of a title than as synonymous with the title itself, and a covenant that one was "seised in fee" is to be regarded as a covenant for title, in contradistinction to a covenant for quiet enjoyment, As covenant of seisin, see "Covenant of which is called a "covenant for the possesSeisin." As covenant running with the land, see "Covenant Running with the Land." Mr. Rawle, in speaking of the covenant for "right to convey," says: "The covenant is that a particular state of things exists at the time, and if this be not true the delivery of the deed which contains such a covenant causes an instant breach." Prestwood v. McGowin, 29 South. 386, 389, 128 Ala. 267, 86 Am. St. Rep. 136 (citing Rawle, Cov. §§ 205, 214). COVENANT OF SEISIN. As covenant running with the land, see "Covenant Running with the Land." ▲ covenant of seisin is an assurance to the purchaser that the grantor has the very estate which he purports to convey. Pecare v. Chouteau's Adm'r, 13 Mo. 527, 528; Recohs v. Younglove, 67 Tenn. (8 Baxt.) 385, 387; Park v. Cheek, 44 Tenn. (4 Cold.) 20, 27; Curtis v. Brannon, 98 Tenn. 153, 156, 38 S. W. 1073; De Long v. Spring Lake & Sea Girt Co., 47 Atl. 491, 493, 65 N. J. Law, 1; Wetzell v. Richcreek, 40 N. E. 1004, 1006, 53 Ohio St. 62; Howell v. Richards, 11 East, 633, 641; Brandt v. Foster, 5 Iowa (5 Clarke) 287, 294. A "covenant of seisin," or, what is equivalent, that the party has a good right to con sion." Rawle, Cov. to Tit. 50. In the United States a covenant that one "is seised" or "lawfully seised" means, by the weight of authority, seised of an indefeasible estate, and a covenant of seisin is regarded as a covenant for the title. Greenby v. Wilcocks (N. Y.) 2 Johns. 1, 3 Am. Dec. 379; Hastings v. Webber, 2 Vt. 407; Thomas v. Perry (U. S.) 23 Fed. Cas. 964; Pollard v. Dwight, 8 U. S. (4 Cranch) 421, 430, 2 L. Ed. 666; Fitzhugh ▼. Croghan, 25 Ky. (2 J. J. Marsh.) 429, 430, 19 Am. Dec. 139; Martin v. Baker (Ind.) 5 Blackf. 232; Woods v. North, 25 Tenn. (6 Humph.) 309, 44 Am. Dec. 312; 4 Kent, Comm. 472; Gray v. Briscoe, Noy. 142; Howelle v. Richards, 11 East, 641; Young v. Raincock, 7 C. B. 310. In Massachusetts, Maine, and to a qualified extent in Ohio, it has been decided that a covenant of seisin is answered by the transfer of an actual seisin, even though tortious, if it be a seisin under color of title. Marston v. Hobbs, 2 Mass. 433, 439, 3 Am. Dec. 61; Bearce v. Jackson, 4 Mass. 408; Cushman v. Blanchard, 2 Me. (2 Greenl.) 266, 268, 11 Am. Dec. 76; Griffin v. Adm'rs v. McCoy, 3 Ohio (3 Ham.) 211, 17 Fairbrother, 10 Me. (1 Fairf.) 91, 95; Backus' Am. Dec. 585; Foote v. Burnet, 10 Ohio, 317, 327, 36 Am. Dec. 90. But, in accordance with the general doctrine, where one had no valid right to land which he purported to convey by a deed containing a covenant of seisin, the covenant was broken at the time of the con |