
    Drummond’s Administrators v. Richards.
    Tuesday, June 25th, 1811.
    Covenant — Proviso in Mortgage Deed. — An action of covenant does not lie upon the proviso in a mortgage deed that upon payment of a certain sum of money the deed shall be void: there being no express covenant for payment of the money.
    The appellants instituted an action of covenant, in the county court of Spottsylvania, against William S. Stone and Thomas Richards. They declared upon the proviso in a mortgage deed, that “if the defendants should pay certain sums of money, at certain times therein mentioned, then the said deed should be void,” &c. and also on an express covenant, that the mortgagee might reenter and quietly enjoy the premises in case •of failure of payment. , The breach laid was non-payment of the money, and not permitting the re-entry and quiet enjoyment.
    At June term, 1805, office judgment was confirmed, and writ of inquiry awarded. At November term the pleas of “conditions performed,” and “conditions not broken,” were filed. The jury found a verdict for the defendant, William S. Stone ; he being a certificated bankrupt. *They found for the plaintiff, against the other defendant, part of the sums of money specified in the declaration ; that part was not yet due, and another part had been paid; and, as to the other cohvenants, they found for'the ■defendant. Upon this verdict judgment was entered against the defendant, for 850 dollars, the principal sum due) with interest from the 1st day of December, 1804, till payment, and costs.
    A bill of exceptions shows that, before the defendants filed the two pleas, they offered, at August court, 1805, eight formal pleas, covering, in various shapes, the same matter that the two pleas contained; which eight pleas the court rejected. There was an appeal to the district court, where the judgment was reversed, and the suit dismissed with costs. The plaintiffs then appealed to this court.
    Botts, for the appellants,
    insisted that the action of covenant might well be maintained on the proviso, even standing alone ; but certainly, when connected with other parts of the deed showing an implied covenant to pay ; that no particular form of words is necessary to constitute a covenant: so debt lies on a instrument acknowledging the defendant indebted to the plaintiff, without any express engagement to pay. 
    
    Williams, contra,
    maintained that no breach of covenant can be assigned upon a proviso; there being no express covenant that the money shall be paid ; and relied on. Suffield v. Baskervill, 2 Mod. 36, and Briscoe v. King, Cro. Jac. 281.
    
      
       Covenant — 'Trust Deeds. — A demurrér lies to an action oí covenant on trust deed executed merely as collateral security for payment of promissory note, Wolf v. Violett, 78 Va. 57, 62, citing principal case.
      See further, monographic note on Covenant, The Action of” appended to Lee v. Cooke, 1 Wash. 306. The principal case is also cited in Moss v. Green, 10 Leigh 274.
    
    
      
       2 Bac. Abr. (Gwill, ed.) 65, tit. Covenant, letter (B.)
    
   Wednesday, September 25th.

JUDGE ROANE

reported the opinion of the court.

“This court (not deciding whether the judgment of the county court was erroneous in refusing leave to the appellee’s- counsel to file the eight pleas, mentioned in *the bill of exceptions, on setting aside the office judgment) is of opinion that the judgment of the district court, reversing that of the county court, and rendering judgment for the appellee, is correct; so much of the declaration in the cause as charges the non-payment of the several sums of money therein mentioned being insufficient, in point of law to sustain an action ; and the issue joined, on the other part thereof, being found in the appellee’s favor. The judgment of the district court is, therefore, on this ground, affirmed.”  