
    Grannis against Clark and others, executors of Delvin
    On demurrer to the declaration. The first count set forth an indenture of lease made on the 5th day of April, 1825, in th.e testator’s lifetime, between him and the plaintiff, dated on the ■——day of April, 1825, by which the testator did demise, grant and to farm let unto the plaintiff a certain lot of ground described, for the term of 10 years from the 1st day of May, 1826, with a covenant by Delfín, that the plaintiff should have possession on that day, and another covenant that he should quietly possess during the term, with various covénants as to buildings and erections by the plaintiff, and his compensation by the testator, the use of a well for the plaintiff, insurance against fire, by the lessor, and for renewal of the lease, &c. Breaches, that Delvin was not, when he executed *the indenture, or since, seised, nor had he then or since any interest authorizing him to demise, nor good right, nor lawful authority to demise; that the plaintiff could not obtain possession on the 1st of May, 1826; but was, by the rightful -owner or owners of the premises, or some part or parts thereof, hindered and prevented from entering on that day; that he did not quietly enjoy during the term or any part of it; but, on the contrary, was, by the rightful owner or owners of the premises, or of some part or parts thereof, hindered from entering when the demise commenced; and had been by the owner or owners kept out of possession; and prevented the fulfilling of his covenants in the lease; and that the use of the well had not been furnished, &c-
    
      ^ grant, in » lessor’s
    The word-demise, in a lease for .years, implies a covenant of power in the lessor to give the lease.
    In an. action on these covenants, it -is not necessary to averan eviction. An action lies,, -though the lessee was prevented from taking possession.
    But it must be shown expressly, in assigning breaches, that the lessee was kept out by a title existing in a third person, (showing whom,) .at pr before the time of the execution of the lease.
    The implied covenants may be set forth in declaring-in the same manneras if they were set down .and expressed in the lease; for spch is the effect of the lease.
    In pleading any contract in writing, it is sufficient to set it forth according to its legal .effect.
    More of a contract than what is sufficient to show the cause of action, should not be-stated; but excess is no ground of special demurrer, though it may be stricken out as surplusage.
    An instrument having no date, or where the date is in blank, may be set forth as executed on a certain day, without stating expressly that it was without date.
    
      The second count recited in hcec verba an indenture of the like import as that mentioned in the first count; but which contained no express covenants, as to title, possession or enjoyment. Several.covenants, having no relation to the title, were contained in the indenture, as in the first count, and also to pay rent and taxes, leave in good repair, &c. Breaches, as in the first count.
    The defendants craved oyer upon both counts. This was answered by setting forth the indenture recited in the second count; whereupon,
    Special demurrer and joinder.
    The demurrer assigned as cause, among others, that the indenture should have been described as without date; and also the unnecessary matter in the declaration. Also as to the "first count, that it varied from the indenture in setting fourth the covenants- as to the title, the indenture 0 itself containing none. °
    
      C. P. Kirkland, in support of the demurrer.
    Loading a declaration with unnecessary matter is always discountenanced by the courts. (1 Saund. 233, note (2.)
    The lease imports no covenant of seisin or power to demise, or to put the plaintiff in possession. The words de mise and grant are the only words which can be relied on, and these import no more than a warranty or covenant of *quiet enjoyment. (Co. Lit. 384, a. note 832. 2 Caines, 188.) Such a covenant respects the possession only. It is equivalent to' a warranty, which is not broken without eviction. (1 Saund. 322. 15 John. 645. 2 B. & P. 14, note (a). 2 Saund. 181, b. note.) Here has been no eviction, or any thing equivalent. But if a covenant of power to convey be implied,, the declaration should have shown by whom the plaintiff was hindered from his possession ; and a possessory right in another at the time the plaintiff was entitled to his possession. This should especially be so where the defendants are executors.
    At all events, it should have shown that the adverse title existed at or prior to the date of the demise; that it was derived from or under the lessor; or, at least, that it was not derived from or under the plaintiff himself. (2 Saund. 177, 181, a. and note (10.) Woodf. L. & T. 312 Shep. Touchs. 167. Cro. Jac. 315. 4 T. R. 617. 8 T. R. 278. 2 B. & P. 14, note b.)
    
    G. C. Bronson, contra.
    The pleader was bound to set forth the indenture of lease according to its legal operation. (1 Chit. PI. 802, 3.) Here, we say, is an implied covenant; and there is no better way of declaring upon it than to set forth a covenant for something, as of power or title; and then, if such be the effect of the implied -covenant, the declaration is supported. (1 Chit. Pl. 302, 353, 354.) ■ Mere surplusage in a declaration is not a subject of special demurrer. (1 Chit Pl. 232, 3, 4.)
    The only real question in the case is, whether the plaintiff has any remedy at all. This lease was to commence m Possesslon some time after the date; yet the -argument is, that, without entry and ouster, no action lies. Then all a lessor need do, is tb keep his lessee entirely out of possession from the beginning; and this implied covenant is not broken. We say here is .an agreement that the lessee should have the property from .the 1st of May. Ho particular Words are necessary to make a covenant. Any words showing the intention are sufficient. (6 John. 49. 20 id. 266. 3 id. 44. 5 Munf. 483. Com. Dig. Covenant, *(a. 2) Day’s fed;) A covenant arises whenever the court 'see ,'it was intended. Holder v. Taylor, (Hob. 12,) is this very case: which will be foundto have been acquiesced in ever since its decision. Hot a case has ever questioned.it. (Com. Dig Covenant, (A. 4.) new ed.)
    The objection, that no time is shown when the adverse-title began or existed, is not founded in fact. It is denied by the declaration, that the lessor ever had title.
    In this declaration, each breach is in nature of a separate count.; and if either be found sufficient, the demurrer being to the whole, must fail.
   Curia, per Savage. Ch. J.

The defendant demurs; and assigns eleven causes of special demurrer to the first count, .and eight to the second. Upon the argument, the defendants’ counsel-stated six grounds of general demurrer,

I shall consider some of them. It is objected, that the lease should have been described as without date; it being, in fact, dated April-, 1825. The plaintiff has declared upon it as executed on the-5th day of that month. He is right in so declaring. -Should it turn out on trial that it was made on a different day, a question of variance may arise; but that is no cause of special .demurrer.

The main question in the cause is, whether the covenants, relied-on in the declaration, are to be found in the lease,; and, -as there are no such express covenants, whether they are implied by any words made use of in the lease.

The gravamen in the declaration is, that the defendants’ testator" ¡leased Certain premises1 tb the plaintiff;; and covenanted that; he should have peaceable and quiet possession on the 1st of May, 1826; and for quiet enjoyment •thp term; but that the testator had no interest in the premises, nor any power to demise; and that the plaintiff could not obtain possession; being kept out by the rightful owner.

The words in the conveyance which are supposed to, Contain,, the above covenants, are “demise and grant” The effect of these words will be best understood by referring *to a few authorities. The opinion of Sir Jeffrey Palmer is thus quoted by writers on this subject: (Co. Litt. 384, a. Butler’s note, 332:) “ Give implies a personal warranty, and so is not always used. The word grant, in a lease for years, is a covenant in law, or as you may call it a general warranty, if it be not qualified by a covenant or warranty in fact; but if there be a covenant or warranty in fact, then it is restrained to the words of the covenant subsequent. But in an estate of inheritance where the fee passeth, then the word grant is neither a covenant in law nor a warranty.” The effect here given to the word grant has been uniformly admitted; and-acquiesced in by the courts in England and in this state; but I need only refer to the ease of Frost v. Raymond, (2 Caines, 194,) where the force and effect of the words dedi et, concessi are fully and learnedly considered by Kent, Ch. Justice ; who says, ,M it is well settled, that concessi, in a feoffment or estate of inheritance, implieth no warranty. It only creates a covenant in a lease for years.”

The effect of the word demise is considered in Holder v. Taylor, (Hob. 12.) The case is as follows: “Holden brought an action of covenant against Taylor; and de* dared for a lease for years made by the defendant by the word demise, which imports a covenant; and then shows that, at the time of the lease made, the lessor was not seised of the land, but a stranger; and so the covenant in law broken; but he did not lay any actual entry by force of his lease, nor any ejectment of the stranger, nor any claiming under him: whereupon it was objected, that no action of covenant would lie, because there was no expulsion; but the whole court was of opinion, that an action did lie; for the breach of the covenant was, in that the lessor had taken upon him to- demise that which he could not; for the word demise imports a power of letting as dedi a power of giving. And it is not reasonable to enforce the lessee to enter upon the land and so commit a trespass. But if it were an express covenant for quiet enjoying, then perhaps it were otherwise.” This case is cited by sergeant Williams, (1 Saund. 822, a. note 2,) who says *that an action of covenant lies against the lessor on the implied covenant in law upon the word demise; but it is not necessary, in order to support this action, that the lessee should be actually evicted; for the word demise implies a a power to lease. Therefore, when a man demises lands to which he has not any title, an action of covenant will lie against him, although the lessee never entered; for he is not bound to commit a trespass.

In Nokes' case, (4 Co. 80,) it was resolved among other things, that for this covenant in law upon the words demise, grant, &c., an action of covenant lies.’ (Cro.Eliz. 674. Cro. Jac. 73, S. P.)

It is perfectly clear, therefore, that the words demise and grant import a covenant that the lessor had authority to make a valid lease of the premises. •

The declaration is, therefore, correct in stating Delvin to have covenanted that Grrannis should have, on the 1st day of May, 1826, "quiet and peaceable possession of the premises, &c.

The next subject of inquiry is, has the plaintiff shown in his declaration a breach of this covenant ? The averment is, that" Delvin, neither at the date of the lease, nor since, was seised of the premises; and had no interest therein which would authorize him to demise: and further, that the plaintiff could not enter on the 1st of May, 1826; but was, by the rightful owner or owners of the premises, or some "part thereof, hindered and prevented from entering on the said premises; and that he could not quietly have, hold, occupy and possess the same, &c.

It is objected, that no eviction is stated: the answer to which is, that no eviction was necessary; nor indeed could there be any eviction, when the lessee never had possession. The complaint is, that from want of title in the lessor, the lessee could not get possession; but was kept out by the true owner. Where the covenant is broken immediately, no eviction or disturbance need be shown. (6 John. 50.)

But I am of opinion the declaration is insufficient, in not stating that the title of the person keeping the plaintiff *out of possession existed at the date of the lease. Otherwise the averment in the declaration may be true without showing a cause of action. The plaintiff may have been kept out of possession by the true owner; but that owner may have derived title under the plaintiff himself. In all cases where an eviction must be Stated, it is held to be necessary to aver that the eviction was had under a lawful title existing before, or at the date of the grant to the plaintiff; and an averment of lawful title, without this qualification, is bad after verdict. (2 Saund, 181, a. note (10;) 4 Co. 80, the third resolution in Nokes' case.) 1

The declaration is faulty, in stating more of the Covenants than compose the foundation of the action j and in setting out breaches Which most necessarily have been subsequent to his entry; though it is right in stating that part of the contract which is the foundation of the action according to its legal effect. It is sufficient, said Lord Ellenborotigh, in Clark v. Gray, (6 East, 567,) to state so much of the instrument as constitutes the contract, the breach of which is complained ofi (1 Chit Pl. 298 to 303, and the cases there cited.)

If, however, unnecessary matter be stated, which is foreign to the cause of action, it may be rejected as surplusage ; and does not vitiate. (1 Ch. Pl. 232, 3, 4.)

My conclusion, therefore, is, that the lease declared on, does contain a warranty of title on the part of the lessor, that he had power to make the lease in question; and that the lessee should have quiet and peaceable possession on the 1st of May, 1826; and that the plaintiff has declared properly, in stating the contract according to its legal effect. The declaration is defective, in not stating the particulars of the plaintiff’s being prevented from taking possession of the premises; that is, as to the person or persons who thus prevented him; and by what right; and in not showing a title at or before the date of the lease declared on.

The. subsequent covenants in the lease should not have been set forth, nor any breaches of them assigned; but being superfluous, that part may be rejected as Surplusage, and ts not, therefore, good ground Of a special demurrer.

Ths defendants are entitled to judgment on the demurrer* with leave to the plaintiff to amend on payment of costs.

Rule accordingly. 
      
       Upon this subject Mr. Chitty (Gen. Pr. 344, 345,) remarks: In a lease the words “grant” or “demise ” are held to amount to a covenant for quiet enjoyment, unless afterwards restrained by a qualified express covenant; and it may be implied from the lessor’s taking on himself to demise, upon which an action of covenant would lie by the lessee against the lessor in case of eviction. There is this distinction between express and implied covenants, that the latter are general and unqualified, but the former may be qualified in any manner according to the agreement of the parties. When a deed contains such an express qualified covenant, it will restrain the effect of the general covenant, which would have given a remedy in ease of an eviction from any title paramount to that of the covenantor, for which only the qualified covenant would be a warranty. This, therefore, is one reason why, in many cases, it might be advisable to rely upm the general implied covenant, if there were not another countervailing objection, which induces parties to require an express covenant, when they can induce the lessor to insert the same, viz. that the general implied covenant is a personal stipulation, continuing only during the continuance of the estate of the covenantor, and determining therewith; whereas, by the express covenant, the covenantor binds himself, his heirs, executors, administrators and assigns, against either of whom a remedy may be had in any case after the death of the lessor. A case was recently decided, which illustrates this position. A tenant for life granted a lease for fifteen years, (not warranted by any power,) and which lease did not contain any express covenant for quiet enjoyment, but such a covenant was clearly implied from the word demise. The lessor, the tenant for iife, died, and after his death the lessee was evicted by the remainder-man, before the expiration of the fifteen years; and the lessee brought an action of covenant against the executor of the tenant for life, in respect of such eviction; but the court of Common Pleas determined that such action was not sustainable, because the implied covenant ceased with the estate of the tenant for life, out of which such lease was granted.
     