• OF THE STATE CIF . ARKANSAS ! 325 12,ITTEK ROCK, kW) , ISKS ...e7"sevvad OASTS& Oita MEMEL STEPHEN GASTER agaitht CHESTER ASHLEY. Eanort to Pula& Circuit Court. In an nction of debt or covenant against the assignor, upon a personal, collet,. eral guarantee; on an assifined note pr bond, it is indispensably necessary to allege in the declaration, that the rlaintilf has used due diligence in pros,: ecuting his suit against the original Collor, or that he is wholly insolvent , - and unable to pay. No particular fozin, or technical worth are necessary to create a covenant, but any words, which show the intertion of the parties, will be sufficient. It may be by any words, and on any part Of the agreement. The enquiry always is, what was the intention of the parties, and that is to be collected from the context of the instrument i*elf, which is to be construed according' to the obvious meaning, and reasonwle sense . of the words; and if there be any ambiguity in the words, such a tonstruction is to be given as will militate most strongly against the coveiantor. An endorsement upon a bond for a Lcvely claim, assigning, and setting over the bond, and containing the further clause, " and I hereby guarantee that the said claim shall be confirmed it the Land Office at Helena, within a reasonable time, and that the said Claim to a donatibn is a legal Vid valid claim," is an original covenant, aid not a collateral guarantee. A breach in such case, that the claim was, at the time of making such endorsement, a bad, illegal, and invalid daim, is good. One-good breach in covenant is suficient. The facts of this case are fullt stated in the opinion of the colirt. CUMMINS and PIKE, for the , plaintiff in error: • The plaintiff in error conceives that the court below errea in sustaining the demurrer. Upon argument of the demurrer, but two grounds were assumed by the defendant, nor does the plaintiff anticipate that other grounds will be taken in this court. The defendant based his demurrer upon the pOlt that the plaintiff should have averred a demand upon the original covenantor for a confirmation of the claim mentioned in the covenant, and a refusal by him to claim a confirmation. And in arguing this point, it was' also assumed that the endorsement of the defendant was not a covenant, but merely a guarantee that the original covenantor should do certain acts; from which it was deduced that a demand upon the original covenantor to perform was necessarY in order to fix : the liability of the defendant. Tbe plaintiff in error respeetfully submits that the endorsement,of the defendant, which is the foundation of this action, is a covenant to
326 CASES IN TIIE SUPREME COURT LITTLE ROOK, allintents and purposes, and that tie word "guarantee," when used hn'y 109 in an obligation under seal, is syncnimous with the word " covenant." CASTER v.. A guarantee by parol will sustain en action of assumpsit; but a guar-ABELET, antee under seal will suitain no action unless it can 'be the foundation of the action of covenant. But the argument of the defendant assumed more than the case warranted. The guarantee of the defendant was, not only that Mayes should do certain acts—not only that the claim should be confirmed within a teasonable time—but that the said claini was, at the time of making such covenant, a )egal and valid claim. This guarantee, that the claim was a legal and valid one, was precisely such a covenant as the covenants of title in a general deed, and was broken as soon as made, if the claim was not at that time a legal and valid one. See 2 1. J. Marsh. 430; 2 Johns. R. 1; , 4 J. R. 72; 4 Cranch, 429; 2 Saunters, 171, c.; 5 J. R. 53. So far, therefore, as the argument of the defendant was founded upon the distinction between a guarantee and a covenant, it was based upon imagination; for it is well settled that no particular words are necessary to make a covenant. 1 Bith, 370; 2 Bibb, 614; 1 Marsh. 476; 3 Johns. Rep. 44; Lit. Sel. G. 134. It only remains to consider the ne:essity of averring a demand of confirmation upon the . original covenartor. The breach in each count of the declaration is, not only that the said claim " has not been confirmed at said land office, although a reasonable time has elapsed;" but also " that said claim was, at the thrs of making said covenant, a bad, illegal, and invalid claim." If be claim was an illegal and invalid elaim, the envenant was broken as soon as made. See ut sup. In a declaration in covenant it is enasgh to assign one good breach. See 3 Yerger 463; 4 Littell, 432; 5 An. 11, 34. Where there are some good and some bad breaches, a general demarrer cannot be sustained; and if there is enough assigned to show a subsisting cause of action, the demurrer will be overruled. 4 Litt. 432 ut sup. There being, then, one good breach, to wit, that the claim was an illegal and invalid one at the time of making the covenant, the decla-tion was good and sufficient. See 1 Chitty's Pl. 325, 6, 9; 3 Bibk 332. And therefore, even allowing the necessity of averring a demand, had the covenant been only that the claim should be confirmed; yet wit was coupled with a further warranty, that the claim was then a legal and valid one, a breach of the latter was suffieient to fit th6 liability. 6 J. R. 65; 13 J. R. '264.
OF THE STATE 01 , ARKANSAS. 327 Another principle in pleading, which applies to this case, is, that LRITOTIA: -where there is a condition precedent, performance of the condition, Ja w s' 1839 or an excuse for non-performance, must be averred. If the claim was warns IN • illegal and invalid, that fact was sufficient excuse for not making a ASHLEY. demand; for to what end demand a confirmation, when such con-- firmation was impossible? But a breach of the latter covenant included in Melt a breach of the former, for if the claim was not a valid one, it never could be eon-firmed. It was, therefore, not in fact necessary to aver that the claim had not been confirmed. An averment that the claim was not a legal and validone, was a complete breach. Yet the plaintiff risked nothing by negativing every part of the covenant. The breach may be as large as the contract, because the plaintiff may recover, though he only prove a part of the breach as laid. 1 Chitty's Pl. 329, Nor is the plaintiff in error left to rely upon these arguments alone. The premises and positions of the defendant are incorrect, and not sustained by law. The very point here in dispute has been often adjudicated and definitely settled in the courts of Kentucky, and those decisions fully sustain the position . that in this case there was no need at averring a demand even in the breach of the former part of the covenant. Where a thing to be done is local, he must do it in a reasonable time. 3 Bibb,105. And if he. fail in the performance, although there may have been no special request, he will be liable for a breach of his contract. Same ut sup. This case is like those where the thing to be done is transitory in its nature, because the defendant guaranteed that the claim should be confirmed "in a reasonable time." And even in local acts, if the concurrence of the obligor and obligee is not necessary, the duty accrues presently. 1 Bibb 461; 3 Bibb 329; 3 Mann 446—which declare that where that which is stipulated to be done is transitory in its nature, and no time is specified for the performance, tbc covenantor is bound, without being hastened ny request, to an immediate performance; and also where concurrrence of the covenantee is not necessary, as in this case. On a covenant to convey lands, to be valued by a third person, it is neither necessary to aver a demand of conveyance, nor a request of valuation. 4 Bibb, 300; 2 Yerger, 127. These cases, decided by the cowls of Kentucky and Tennessee, bear directly upon the preseut. case. Nor does the reason of the law conflict with the law itself. To what purpose aver a demand of con.
128 CASES IN THE SUPREME COURT I 1 s 4 o N m r . i LE firmation of title, When it is already averred that the covenantor neVei "ley 1$39 had; and never, ivill have it io his power to obtain such confirmation5 N'orN.e*d GASTER because the claim was, at the time of making the covenant, illegal ALEY and invalid. The words of the court, in a parallel case, Williams vs'. Casey, 4 Bibb, 303, apply with peculiar force: " As a breach is alleged, not in the failure of the defendant only, but in his total ina. bility to convey, it would be preposterous to require of the plaintiff, before be could maintain his action, to make a special demand of the title." Upon the point that the breach, that " the claim was bad, illegal and invalid," is sufficient, see Holder vs. Taylor, Hobart 12 a, where it was holden, that where a lease for years was made by the demisi, that wird imported a covenant, and that the averment, that, at the tirne of making the lease, the lessor was not seized of the land, butt a stranger was, and so the covenant in law was broken, was a sufficient breach: That it was not decessary to aver an expulsion, because the breach of the covenant was in that the lessor had taken upon him to demise that which he could not. So in Lancashire v. Glmer, 2 Shower, 460, in debt on bond for non, performance of a Covenant, "that the defendant had a good and r ' ightful authority to convey ;" a breach assigned in the direct nega. live that he had not a good and rightful authority, &c. is good. So in Robert Bradshaw's case, 9 Co. 63, and same case in Cro. Jae. 304, named there Salmon v. Bradshaw: So in Plomer v. Plaisted, 2 Shower, 472; Hancock v. Pielcl, Cro. Jac. 170; Johnson v. Proctor, Yelverton, 175; it Saund. 322, a n. (2); Grannis v. Clark, 8 Cowen 35. See further as to what words are necessary to make .1. covenant—. Brett V. Cumberland, Cro. Jac. 399, 521: ASHLEY and WATKINS, contra: The question arising in this case is, whether an assignment Of a covenant can be sued, without an averment in the declaration, of .due diligence on the part of the plaintiM in prosecating the covc. p ant, or to insolvency; or that he has at least made demand upon him to perform his covenant. The law upon this point is the same, in Mc Sates of Virginia, Ken-tucky, and Missouri, as well as of Arkansas, under statutes of assignment nearly or precisely similar, and the authorities are numerous:-.— 1 Qin Virginia Rep. 497, Brinker v. Perry, 5th Littell, 194; Camp.
OF TEE STATE OF ARKANSAS. 320 v. , Hopson,lst Marshall, 2 1 I ; Lemmons v.. Choteau,Sup.CourtArk. . Jan'y See Rec. The Statute makes no difference between bonds and cevenanti for °Ira the paYment of moneY or prePerty,whkh are Made assignable 'and ABBLE5r° the course ot decisiens has been Uniform. Digist. Title Assignment's. At to liability of 'asSignor on bends, notes„ . and covenants, see alio, 3 Marsh. 636; 4' ib. 304; 7 ib. 3431 Murdock v. Razdings, Monibe 75 ;- ikdal v.Smith, Same vol. p. 290. LACY, Judge, deliverea the opinion of the court: This is an action of covenant, founded on an endorseme nt, under the seal of Chester Ashley to Stephen Gaster, upon a deed of bargain and Sale for the conveyance of a donation claim to.three hundred and twenty acres of land, executed by Robert Mays to the .defendant error. The declaration contains. three counts, each avening 'the saMe Cense of action; o but charging the defendant in different ways. The deed froM Mays to Ashley is for the consideration ef four hundred dollars, and recites the usual covenantkin such conveyances. Thatihe grantor has a good and valid claim, agreeable to the aet of Congress ..,that the claim is properly proved up. before the Landpificers, ead, that if any other proof is necessary, to establish its validity, he will furnish the -samethat the grantee shall have full power and autherity tO edter the said daim on any of the public lands, as his agent and hi's attorney in fact, and upon demand or without it, as soon as the President of the United States shall issue patents on the said entry—that he will execute a deed with general warrantee in fee simple, to the gtantee and his heirs for the land previously located, and upon which the mint has emanated. On the back of this deed is the following en-doisement: "Know . all men by these presents, that 1, Chester Ashley, ibrand in consideration of eight hundred dollars, to-The in hand paid r by Stephen Gaster, the receipt whereof is hereby acknowledged, have asSigued, transferred, and set over to the said Gaster the within bond, andhereby gnarantee that the said claim shall be confirmed at , the land , Office at Helena, within a reasonable time; and that the said claim a donation is a legal and valid claim. Witness my hand and_ seal, this 6th day of July, 1835. CHESTER ASHLEY. (L. The defendant is only sought to be charged by the latter dense in
CASES IN THE SUPREME • COURT MTTLE :HOEK, the covenant, and the breaches aaiigned are, that he did not cause to Jan'Y -11839 be confirmed at the land office at Helena; the said claim Of the said oA 4 r 8 r . Ett Robert Mays within a reasonable time; and that the said claim to a do-ASHLEY. nation was not a legal and valid claim at the time ofmaking the agreement, but a wholly , illegal and invalid claim. At the return term of the writ, the defendant appeared, and craved oyer of the writings declared on, which Was granted. He then filed a general demurrer to the declaration, to which there was a joinder; and judgment was thereUpon rendered in favor of the demurrer, and against the sufficiency of the declaration. The cause now stands .on a writ of error sued out and prosecuted by the plaintiff to reverse the judgment of the coutt below. The record and the assignment of errors present but a single luestion, which is, does . the declaration contain a good cause of action, and are the breaches properly assigned? It is contended on behalf of the defendant, that the present action cannot be maintained, nor are the breaches well laid. The instrument Sued on is said to be a mere assignment of a Chose in action, coupled with a personal guarantee for the ultimate performance of the original obligor's bond. On the other hand, it is insisted for the plaintiff in error, that the defendant's writing obligatory is a covenant to all intents and purposes, and that it is an Original, and not a &lateral liability. If the first proposition be true, the declaration is fatally defective, and was rightfully adjudged bad on demurrer; for no,position ismore clearly bad incOntestibly established by all the ' authorities, or more consonant to reason• and justice, than that in action of debt or -covenant, against the assignor upon a: personal, collateral guarantee on an assigned note or bond, it is indispensably necessary that the plaintiff' should allege in his declaration he has used due .1iligence in prosecuting his suit against the original obligor, or that he is . wholly insolvent and uhable t'o pay. Without some suet' averment, no cause of action accrues; for the breath entirely depends on the happening of the . precedent conditions, and therefore in every instance of the kind such an allegation is one essentiaFprerequisite to the maintainance of the action. The cases Cited at the bar in favor of the defendant Unquestionably prove the principle here stated, and have exclusive . reference to it. 3 J. J. Marshall, 360; 4 J. J. Jikrshall, 304;- 3 Monroe t 75; Call, 497. Before these principles can be considerettas applicable to the case
OF THE STATE OF ARKANSAS. 331 now before the court, the defendant musi, show from the deed itself LITTLE; , ROCK, or the legal inference fairly ticducible from the contract, that he only Jaw s, 1839 ... A .r s v T E -a R d intended to bind himself by his assignment and guarantee, for the performance by the obligor of the condition of his bOnd. The court, APHLEIL in examining the question, do not deem it very material to determine: whether the deed„of bargain and sale from Mays to Chester Ashley, is assignable under our Statute, or not; for, be that as it- may, the defendant would still be held liable, if the latter cl'ause in the assignment contained within itself a distinct and independant covenant, separate and apart from the agreement on the bond; and he can in noway he made responsible in this action, if he is only bound as collateral security. So far, however, as the covenant of Mays, and the entire assignment of 'it can throw light on the real intention and design of the parties, it should be looked to, arid regarded as furnishing no ordinary evidence, by which the contract may be rightfully interpreted - The enquiry then is, what is the character or nature of the agreement declared on. Is it a covenant, or a collateral guarantee? A Covenant is an agreement, or consent Of two or more persons by deed, in wri= , ting, sealed and delivered, whereby either the one or the other of the parties doth promiSe that something is done already, or shall be done afterwards. And this is either express or in deed, i. e. when the covenant is express in the deed, or it is implied, or in law ., i. e. when the deed doth not express; but the latv doth make and supply it. See Shephrd's Touch Stone, C. VII. No particular form or technical words are necessary to create a covenant; but any words which show the intention of the parties, will be sufficient for the parpose. Hollis vs. Carr, 2 Mod. 88 . . For a covenant may he by any words, and upon any part of the agreement, in writing: 1 Leon, 324. The word cOvenant is not necessary to make a covenant. 1 Rolle Abr. 518; I Burr 299; Hallet vs. WilliS, 3 J. R. 44. In Bull vs. Follett, 5 Cow: 170, it is said that no 'precise or formal terms are necessary to constitute a covenant. The enquiry always is, what was the intenrion of the parties. In construing a covenant, it must be considered in reference h the context, and be performed according to the spirit and intention Of the parties. .Marvin vs. Stone, 2 Caw: 781; Quackenboss vs. Lan-sing 6 . J. R.49. In the "case of Iggulden vs. May, (7 East, 242; Plow-don, 329,) it declared that the, interrtion of the parties is to be collected from the context of the instrument itself,,which is tnbe construed
332. CASES IN THE SUPREME COURT l i r ga l according to the obvious meaning and reasonable sense of the words; )839 'aild if there be any ambiguity in the terms, such a construction shalt .0: v A e: stpi he given as will militate most, strongly against the covenantor. By ap-484, 4 y, plying these rules to the case under discussion, we shallind little or no difficulty in discovering the real intention of the parties, the true nature and object of the contract sued on. It is said that the fact of' the signing of the bond dernonstates what was the intention of the parties; for why assign it, if the defendant intended to make himself respoiisible in the first instance. There are two obvious answers to glis question: In the first place it is exceedingly questionable whether such a deed of bargain and sale can pass, by assignment at law. The equity may be assigned—the legal estate probably cannot be assigned. Secondly, admitting thatit can, which is by means conceded, still the peculiar character of the claim conveyed, would induce the assignee to wish to have the title papers in his possession, that he might be able to fnake the locations in the claimant's own name, as the law required; and as these muniments of title would be wholly, useless to the asSignor, and he of course would be willing to transfer them, or part with them, by assignment. Again: if the original obligor is answerable to the assignee, to what amount is he bound? Certainly for nothing more than the consideration money and interest, expressed in his deed, which is four hundred dollars; whereas, the assignee has paid to the assignor just double that sum, as their agreement on its face shows, so that the responsibility of the original obligor would be no adequate indemnity for the loss that the present plaintiff sustained, by reason of the defendant's assignment. He cannot have at one and the e same time a divided responsibility, for one and the same cause of action. The very idea involves a legal contradiction, and, it proves if true, that he has a perfect legal right, without any adequate or legal rernedy.T This view of the case goes far to prove that the plaintiff never looked to the obligor's original bond, in the event he should be damnified; but that he regards the defendant as albne answerable to him on his . assignment of warranty. If any thing should be wanting to strengthen this conclusiOn, the intention of the parties may be fairly collected and inferred from considering to whom was the purchase mOney paid, and to whom was full faith and credit given. Certainly, not to theoriginal covenantor, but to the defendant in this action. He reeeived the consideration money, and oo his deed the plaintiff implicitly relied. For any thing- that appears,lhe original claimant
F. THE STATE Of KAN$AA. 333 IMAM Jan*, 0 . anger:to the contract. The plaintiff might -be very. za LE , - willing to trust ta the responsibility and gnarantee of the defehdant,: Ia n' Y 113- 11 but wholly unwilling to place any confidence or reliance upon the,ui-. armee timate security of the claimant. Besides, the agreement between the Aaci. parties has all the essential requisites of a covenant It is in writing,, signed, sealed and delivered by the assignor, with a promise to do a , particular act, If there should still be any doubt or uncertainty as to the intenfion or meaning of the contract, the latter clause of -thein-strument will place the matter beyond, ail controversy or dispute.- The defendant„ . after reciting the assignment on , the bond, Anther adds:— "I hereby guarantee that the said claim to a donation, is a legal and valid claim.". -What is the meaning. of the word guarantee,. as used in this agreement? Does it purport to be a collateralor an original undertaking? In what sense did- the parties use it? .All words or terms used are more or less arbitary, and the same word or term frequently has several wholly. different-and distinct meanings. -This is one. Of the imperfections, that essentially belong to the nature of all written or: spoken language, and the evil, if „ it can ,be calledune, remedied brthe governing words in the sentence, that precedeand . follow the doubtful term, by the embodied form and proportionsof the ideas sought to be conveyed; and, above all, from the sense and intention of the parties, , that define and limit these meanings, which 4 principally to be gathered from the context of the whole instrument - and every part of . it, and from the subject matter about which it treats. That the word "guarantee 7 is very, generally employed to signify a remote liability, is admitted; but it does not thence follow, that it is not frequently used to mean a direct or i)ositive ; engagement. Its ordinary . acceptation is to secure, promise, to bind, agree,, to warrant, and to defend. It is often inserted in deeds of conveyance, and when . it is3: used, unless its sense is limited or extended by, the context of the wri-Ong, or the legal consequence of the act, it is synonymous with promise, agree, with warrant, or defend. And in this sense it is used in the deed or assignment executed brthe defendant. If it was even doubtful, how, it was intended to , be employed, still the court . is: bound to give it such meaning as is most natural and obvious, and which woukt bestearry out the true intention of the parties, and promote the objects of tbe agreement. 4' The deed should be so construed as to be made to stand if practicable.; for it is under the aUthority and solemnity of a f seal; god hence the legal presumption, that if words be used in a cove-
3$4 CASES IN THE SUPREME COURT fa mr tg, nant or deed, wbich will admit of two interpretations; or are in drily manner doubtful, they shall be taken to nperate Most strongly agaioSt alisffit. him who made the grant. To guara . nfee a title is to warrant, thet, Afffittra title. To guarantee a right is to defend that right; to gwirantee Hie validity of a claim is to covenant . , , that the party making the deed is seised Of an indefeasible estate, of inheritance in : fee; for what is a valid and lawful title, Nit covenant of seisin, and in declaring'on Such an instrnMent, the plaintiff need . not aver:that he was legally_evicted: for the deed is a personal covenant--the breach of it happeni, eat at the Very moment of its execution. The authorities upori this .poitit, and the reason upon which they proceed, were fully collected and unalyxed in the case of Logan vs. '.1:fouldei-, decided • during the present term of this court. It'is, therefore, deemed , unnecessary • and inappropriate to go again into the investigation of that subject. See Greenby vs. Witcocks, 2.7. R. 1; .Abot vs, 4llen, 14 .1". R. 24.3. lt was unnecessary for the plaintiff to have averred in his declara-fie% that the claim was not confirmed within a reasonable This allegation is surplusage. The cause of action did not depend on any sub s sequent failure Of title, but on the assignor's total inability to. convey any right or title. And, as there is clearly one good breach assigned,- to wit, that the claim at the time of Make the endorsement, was a ' bad, illegal; and. invalid claim, the aciion is well founded, and the breaches properly laid. See 4 Bibb, 3600 Bibb, 332; 1 ChittY, 325, 6, 9 In every point of view in which we are Capable of considering this subjeet, we are clearly of opinion, that the agreement of the defendant is a Covenant to all intents and purposes for"' which it wai executed.— That it contains all the essential ingredients of a deed Ofsuch: 'assignment, that it was so understood by the parties thernselvei, and that intention is manifest and demonstrable , from the'nature and chat.: aster of the whole transaction. The agreement . itself codains 'apt and appropriate terms' to constitute a covenant. It consiits' of tWo parts:the first is a new assignment Of ' " the original obligor's bond, w ind/ is one thing; the second is 4 personal guarantee or covenant Of title; whith is wholly a distinct and different matter. In all probability , the . vendee would never have,purchased, or thp vendor parted with the title, hadlit : aot been for the aiiigner's expreii and declared warranty. To the faith of that he 'alone fruited, and upon it paid the purchase money; and'it wOuld be, therefore, both un-,
OF THE STATE OF ARK ANSAS. 335 reasonable:and unjust to compel him to resort to any other or wholly Lor different liability. This being the case, the judgment of the Circuit Jan 'Y 1839 Court was evidently erroneous in sustaining the demurrer. It must, GASTEs "0: therefore, be reversed with costs, and the cause remaaded, to be pro- ASHLEY. ceeded in agreeably to the opinion here pronounced, and leave granted to the defendant, if he ark it, to withdraw hir demurrer, and plead over to the action.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.