Sanders v. Betts

[288] By the Court, Sutherland, J. The case depends upon the true construction of the defendant’s covenant. The plaintiff contends that it is a general covenant of warranty; the defendant, that.it is a covenant merely against his acts, and the acts of those claiming or deriving title under him. It is in these words: “ And the said party of the first part, for himself, his heirs, &c. doth covenant, grant, bargain, promise and agree, to and with the said party of the second part, his heirs, &c. to forever warrant and defend the above bargained premises, and every part and parcel thereof, now being, &c. against the said party of the first part, his heirs, executors, administrators and assigns, and against all and every other person or persons claiming or to claim the said premises or any part thereof, from and under him the said party of the second part. In witness whereof,” &c. The plaintiff in his construction of the covenant, rejects the words, “from and under him, the said party of the second part” as being repugnant to the preceding matter. The defendant, on the contrary, contends that second is used by mistake for first, and that it was obviously the intention of the parties to make it a limited, and not a general covenant; the latter appears to me to be the legal effect and construction of the instrument. The grantor certainly did not intend to protect the grantee against an eviction by persons claiming under the grantee himself; this is an absurdity which is not to be supposed. If the word second had been omitted, and none other substituted in its place, there can be no question, that in construing the covenant, the word first would be implied or understood, because such would appear to have been the intention of the parties. The word second, therefore, may be rejected as repugnant. In truth, “ the said party of the second part” is mere surplusage and tautology. The covenant was complete without those words. Rejecting them, we leave a limited covenant, clearly and technically expressed ; and the rule in the construction of all instruments is to give effect to all the words used, if practicable; to reject only such as are senseless or repugnant. We have no right, therefore, to reject the words, from and under him; and retaining them and rejecting all that follows, the legal effect is the same as though the word first had been inserted instead of se [289] wnd. The following authorities will be found to embrace the general principles applicable to cases like this : Touchstone, 87} 88, 166, 7, 8; 3 Caines, 417 ; 1 Wendell, 231,397. The plaintiff, therefore, has mistaken the legal character and effect of the covenant, and both counts of his declaration are radically bad. Judgment for defendant on demurrer.