Barney v. Keith

By the Court, Savage, C. J. The first objection is not well taken, as the covenants are independent. The payment of the first $20 is not a condition precedent; a general averment of performance is sufficient. By taking the whole instrument together, it is apparent that the estate intended to be conveyed was less than an estate of freehold. The granting words are those applicable to estates for years; the interest conveyed is to take effect in futuro; the lessees are to pay taxes for one year from the 15th March, 1828, and are to waive notice to quit. These provisions are unmeaning in an instrument granting a freehold ; and one of them would render it entirely void. The instrument must be so construed as, if possible, to give effect to every part of it. My conclusion is that an estate for years was created by the instrument declared on. If an estate for years be granted by the instrument, the case of Grannis v. Clark, (8 Cowen, 36,) and the cases there cited, shew that the words “ grant and demise” contain the covenants of warranty of title and for quiet enjoyment. The rule in pleading in either to set forth an instrument in its terms or according to its legal effect. The plaintiffs here in stating the covenants have set them forth according to the legal import of the terms used, and as to the estate granted they have set forth the terms of the instrument, or nearly so. As for the purposes of shewing a right of action for a breach of the covenants of warranty and quiet enjoyment, it is only necessary to shew a term for years; it is not important at present, on general demurrer, to state whether the term was [505] for one year or more ; for whether the estate be for one or more years is matter of construction for the court from what is stated; and in either case the plaintiffs have a right of action. It is important only in the assessment of damages, and when the cause progresses to that stage the court must instruct the jury. The plaintiffs, I apprehend, must have an interest for one year, and that is sufficient for the present enquiry. I am of opinion that the plaintiffs are entitled to judgment on the demurrer, the defendant having leave to amend on payment of costs.