Campbell against Shrum, 3 Watts 60

The opinion of the Court was delivered by Sergeant, J. Ten errors, in relation to matters of evidence and the charge of the court below, have been assigned in this court. Several of them having been waived in the argument here, I shall confine myself to such as the plaintiff in error has urged as material.

The main question is, whether the words of the articles of the 27th of September 1814, between Shrum, the plaintiff below, and Campbell the defendant, constitute a covenant on the part of Campbell to pay the arrears of purchase money and interest due by Shrum to Astley and Gibson, under the agreement made between them on the 2d of January 1805. By the agreement of the 27th of September 1814, Shrum agrees to grant and convey to Campbell, his heirs and assigns, the tract of land “under and subject to the payment of all the purchase money and interest now due on an

article of agreement between Thomas Astley and James Gibson of the one part, and the said Henry [Shrum] of the other- part, dated the 2d of January 1805;” after which follows a covenant by Campbell to pay Shrum 341 dollars and 75 cents. No particular form of words is necessary to constitute a covenant. Whatever shows the intent of the parties to bind themselves to a performance of the thing stipulated, may be deemed a covenant, without regard to the form of expression made use of.

Express covenants may be created by words which at first view might appear to operate rather as conditions, qualifications, or defeasances of covenants. Thus an office was conveyed by the plaintiff to the defendant, provided that out of the profits he should pay the' plaintiff 500 pounds : it was held that the proviso was in nature of a covenant, and not by way of condition or defeasance, and covenant would lie. Clapham v. Moyle, 3 Salk. 108; 1 Lev. 155.

So where a lease was made to B for life, with a proviso that if the lessee should die within the term of forty years, the executors of the lessee should have it for so many of the years as should amount to the number of forty to be computed from the date of the lease: this proviso was held only to amount to a covenant. Parker v. Gravener, 2 Dy. 150; And. 19; 1 Co. 155, a. A case more nearly resembling the present, is the following.

A leased to B, for years, on condition that he should acquit the lessor of ordinary -and extraordinary charges, and should keep and leave the houses, at the end of the time, in as good plight as he found them: the lessee was held liable to an action of covenant for omitting to leave the houses in good plight. 2 Bac. Ab. 162.

Here the principal consideration for Shrum’s agreement to transfer to Campbell was, that Campbell should discharge the arrears due by Shrum for the land, and relieve and exonerate him from his liability therefor. ' No one that reads this clause can doubt that the understanding of the parties was, that Campbell agreed to do so. Without this construction, Shrum would have been left to pay Astley and Gibson in the first instance, and afterwards be turned round to recover upon the equitable claim for indemnity which he would have against Campbell.

Whereas it was intended, under,the agreement, that Campbell should pay off these arrears forthwith ; and a breach of the undertaking on his part occurred when he omitted to do so, for which Shrum could at once bring his action. It is no answer on the part of Campbell to say that Shrum had not paid Astley and Gibson, and therefore he has not been damnified; this action is not founded on the damnification, but on the breach of covenant.

The amount of damages to be recovered is another question ; but if the plaintiff tendered a clear title from Astley and Gibson, I see no reason why the whole arrears of purchase money and interest may not be fairly recovered; and the present verdict is sufficiently guarded to prevent injury to the defendant from the lien of Astley and Gibson, or Astley alone, under the mortgage. It is contended that Shrum disabled himself from conveying a title to Campbell, in compliance with the agreement in 1814, by giving a mortgage to Astley in 1821, on receiving from him a deed for the premises.

The answer of the court below, which seems a satisfactory one, was, that this created no new lien; though different in form, it is substantially the same with the lien in favour of Astley and Gibson, under the articles of agreement of January 1805, transferred to Campbell and accepted by him, and which he covenanted to discharge. Under these articles Astley and Gibson, not having parted with the legal title, had a lien for the arrears of the purchase money affecting the land in the hands of Shrum, and in the hands of Campbell his assignee.

It is said now, on the argument here, that the mortgage was given for more than was due on the articles. This is a matter of fact which we cannot now inquire into. If true, and it would have varied the* principle of law, the the court below should have been requested to charge upon it. We can only examine the charge as it appears on the record, and the sum appears to be considered the same under the articles and under the mortgage. As to the defendant’s right to rescind the contract in the year 1827,1 do not perceive the slightest foundation for it.

He went into possession of the land and held it till that period; paid the 341 dollars and 75 cents to Shrum; had never called on Shrum or Astley for a title, or offered, so far as appears, to pay off the arrears of purchase money which in 1814 he had agreed to discharge. Before one party can rescind a contract, he is bound to show that he did all in his power to complete it, and that the other party is in-fault. There is no proof of any act done or step taken by the defendant to fulfil his contract, though he was in the enjoyment of the rents and profits.

I concur with .the court below that there is no pretext for this claim. Nor is there any reason for the defendant’s exemption from the payment of interest. Exception was taken to the deposition of J. B. Wallace, Esq. on the ground of the insufficiency of the service of the notice. The thirty-eighth rule of the court of common pleas of Alleghany county, requires notice to be served by being read and delivered to the party, or, in his absence, to some of his family at his dwellinghouse.

The evidence was, that the witness served the rule on defendant’s son, and left him a copy of the rule: that he declined hearing it read and showed him where his father was working in the field. On this proof it is doubtful whether the son was at the dwellinghouse: but by reference to the notes of the evidence below, by consent, it appears he was. The service was therefore good. Judgment affirmed. See Burnett v. Lynch, 5 Barn, & Cres. 602; Platt on Cov. 15; Law Lib. 7.