
    P. Young v. M. Hargrave’s Administrator.
    'In a lease for life, containing no express covenant for quiet possession, no word but dedi, I give, can be held to imply such, warranty.
    This cause was adjourned from the county of Hamilton.
    Itwas a suit on a covenant for quiet enjoyment in a lease, made ■by Hargrave and his wife, of the wife’s dower estate, in which Hargrave covenanted for quiet enjoyment. The declaration set forth the lease and averred an eviction in the usual form. The ■•defendant demurred generally.
    
      Strait submitted au argument in support of the demurrer, but: as his positions are principally embodied in the opinion of the court, it is omitted.
    *N. Wright and Fox, for plaintiff:
    On the part of the plaintiff it is contended that, under the act. of 1805, this lease is a valid and binding lease as between the parties, although not acknowledged, and without two witnesses. It has uniformly been decided under that act that a lease did not require subscribing witnesses. 3 Ohio, 465.
    It has also been held, that the acknowledgment did not form a-necessary part even of a deed; that without such acknowledgment the deed itself was perfect.
    There can be no doubt, we suppose, of the instrument- in question being technically a lease; it is a grant of the possession for a term, reserving an annual rent. Whether the term is for a fixed time, or depends upon the life of a person, we apprehend can make no difference.
    The next question, and the only important question, as we suppose, is whether there are any words used in this lease creating a covenant of quiet enjoyment. We suppose it clear that the words “have rented,” amount to a covenant that the lessee shall peaceably and quietly hold the premises during the term specified in the-lease. The first case we shall cite to the court is the case of Dugan v. Petherbridge, decided by the Supreme Court in this county,, in the year 1828. 9 Record Book, 558.
    The case was brought up by writ of error from, the common pleas, and the error insisted upon was, that there were no words contained in the lease importing a covenant in law. The words relied upon, as amounting to a covenant, were these, “ doth rent and lease.”
    The court held that those words did, in law, create a covenant for quiet enjoyment, and accordingly confirmed the judgment of the court below.
    It will not be questioned, w-e suppose, that the word demise, iu alease, contains an implied covenant that the lessee shall enjoy the land. “ When a demise is made by these words, dedi, concessi, demisi, or assignavi, the law supposes that the lessor has title to-the land he demises, and consequently power to lease, and, therefore, it immediately implies an undertaking on his part that the-lessee shall quietly enjoy the land, if the lease be for life, against .all men.” Com. Land, and Ten. 172, new ed. 97.
    Although the words dedi, grant, etc., contain an implied covenant, *other words of the same import will also carry with them a covenant. No particular form of words is necessary to • create a covenant. 1 Bing. 433; 8 Com. Law, 371; 4 Taunt. 329.
    The word demise means to let, to farm. It is said by Ainsworth to be from loco, which is defined to mean, to place, to let, to lay, to let or set, or hire for rent, to let a lease or farm out, to bargain to have a thing done, to put or let out a thing by the great. If these are correct definitions of the word demise, then the words in this lease, “ have rented,” contain an implied cove < nant.
    , But the case does not depend on general reasoning. The question has been decided as above stated, and in 2 Marsh. 302, the -court decided that the words “ have rented,” do constitute a covenant for quiet enjoyment.
    The books say there is a covenant of quiet enjoyment implied by the law, “ upon the words dedi, concessi, demist, or assignavi; for when a demise is made by these words, the law supposes that the lessor has title to the land he demises, and consequently power to lease, and therefore it immediately implies an undertaking on his part that the lessee shall quietly enjoy the land; if the lease be for life, against all men; if only for years, against all persons having title either paramount to or through the lessor.” Com. Land, and Ten. 172; 7 Law Lib. 97.
    Either of these words is sufficient to constitute a covenant, and so far from their having less effect in a lease for life, they have a greater effect in a lease for life than in one for years.
    It is further said, that in a case of a lease for life rendering rent, that an express warranty will not “ take away or qualify the implied warranty, but that the lessee may resort to either at his pleasure.” Com. 172; 7 Law Lib. 98.
    Whereas, in a lease for years, an express warranty is a release -of all implied warranties.
    It is contended that the covenant in this case is not binding upon the estate of the covenantor; that a covenant on the part of a man who grants a lease for life, dies with the covenantor. ..Such is not understood to be the law by the plaintiff’s counsel. We are willing to admit that on a feoffment in fee, since the passing of the statute of quia emptores, the word dedi only implies a. warranty on the feoffor, and does not descend on the heir. Yet it must be kept in mind that this is *the effect of a statute regulation, not a common law principle, for it is expressly laid down by 2 Blackstone, 300, that by the ancient law a warranty was annexed to the word dedi, which descended and was binding on the heir.
    It appears that distinctions have been made between tenants holding of the donor, and his heirs, by certain services, and those holding of the chief lords of the fee. In the former, the donor ■and his heirs were always bound to warrant; in the latter ease he was only bound for life. The statute de bigamies, 4 ed. 1, confined the warranty created by the word dedi to the life of the feoffor, ■unless the lands were given to be held by him and his heirs, after this the statute quia emptores is passed and forbids such reservation of tenure, by ordaining that the feoffee shall hold of the chief lord. Thence it became established that where the fee is conveyed, the heirs of the feoffor could not, in any case, be bound to warrant by force of the word give.
    Note to 2 Coke Lit.,by Thos. 252, original paging 297 of ed. 1827; Co. Lit. 384, in Thomas ed. 296; 2 Black. 300. And it is expressly laid down by 2 Black. 300, that even at this day upon a gift in tail, or lease for life, rendering rent, the donor, or lessor, and his heirs (to whom the rent is payable), are bound to warrant the title.
    
    Shepherd’s Touchstone, page 160, admits that some authorities contend that the executors are liable on an implied warranty after the death of the lessor.
    It will be found that all the elementary writers refer to the case in Dyer, 257 a, for the authority to sustain the position, that an implied covenant in a lease for life, determines with- the life of the covenantor. If the court examine the case in Dyer, they will not be able to ascertain whether the lease, in that case, did not show that the lessor had. only a life estate. If such was the fact, the covenant might well determine with the lease, on the principle that when the term ceases the covenant ceases, and this is the only reason given in the books for the position we are now discussing. The books say the executor is not liable after the determination of the estate. And this is a reasonable doctrine, where the title deeds of the lessee show the fact of the lessors only having a life estate. But where the lessor says nothing about his* own title, but undertakes to grant for a particular term, there we insist the spirit and reason of the law, in implying covenants at all, can not be fully and *fairly carried out, without implying the covenant to the whole extent of the term granted.
    When it appears on the face of the lease that the lessor has only a life estate, and he leases for a number of years, the lessee must see at once that the lease must determine with the life of the les30X-, and as all covenants cease with the estate, no fraud is sanctioned by limiting the covenant to the duration of the estate. But where the lease gives no notice of any limit to his own estate, what can be reasonably and plainly understood by the lessee, but that the man who makes a lease, for a particular time, has a title to the estate for that period ? Indeed, this is the morality of the law in making any implied covenant at all. It is to prevent fraudulently disposed men from reaping any advantage from, their intended frauds, by holding them to make good their representations.
    . It will be found, on examining the authorities, that in all cases the covenant continues as long as the term created by the lease continues. The only case which can possibly form an excejition to this rule is where the lease itself shows that the lessor has an estate which may determine before the lease expires.
    There can be no doubt that in cases of leases by tenants for life, where there is an express covenant for quiet enjoyment, that that covenant extends beyond the life of the lessor.
    It was so decided in Evans v. Geogurst et al., 10 Eng. Com. Haw, 327; 4 Barn. & Cress. 261, where lessee for life leased for eighteen years, and died before the expiration of the lease, it was held his representatives were liable, on a covenant of quiet enjoyment, “ for and during the said term,” so long as the term mentioned in said lease continued, and that the word term meant the period mentioned in the lease.
    We have stated that we consider the lease in question a formal lease to pass the estate, under the law then in force; but we are not to be understood as regarding the affirmative of that position necessary to sustain our action. The covenant is equally binding, whether the lease be formally executed or not. To make the covenant available as an estoppel in ejectment, it must be maintained in a deed which passes the estate; but not so where the-mere personal liability on the covenant comes in question. This distinction is stated by this court in 5 Ohio, 192, in referring to the case of the Dean of Norwich, 2 Brownlow, 165. That was a case of a lease for *lives, 6 Cowon, 128, and shows that the covenants are equally available in such case as a personal covenant, though no estate pass. The confusion in these cases has arisen from overlooking the distinction between the technical operation of certain real covenants at common law and the common effect now given to them as personal covenants. A technical common law warranty operated on the title and run with it; an executor originally could not even be sued on it. 6 Cowen, 123; 8 Cowen, 36; 4 Kent’s Com. In other respects its effect was peculiar. To have the technical effects of such a warrant, the covenant must be found in a deed passing the interest, and so say the books, but they do not refer to the effect of the warranty as a personal covenant.
    It would seem that the idea that the implied covenant in a lease must cease with the estate, may have arisen from the same confusion of ideas. The old books refer to it as a doubtful or disputed position. The case in Dyer, 257, is ancient; we can find reasons for that decision in many of the old and obsolete doctrines of real warranties, but we can find none at all for it under the modern doctrines applicable to personal covenants. The decision might have arisen out of the ancient doctrine of real warranties, considered as running only with the estate, and of course dying with it, but could not be sustained on any principle applicable to the modern use of these warranties as personal covenants.
   Judge Lane

delivered the opinion of the court:

On April 26, 1826, Maxwell Hargrave, and Ann, his wife, made the indenture with Young, by which it is “ witnessed that they, for the consideration of the yearly rent of one hundred and fifty dollars and sixty cents, to bo paid quarterly, have rented unto said Young the premises, etc., for and during the life of said Ann.” After the death of Maxwell Hargrave, Ann Hargrave made a sale of the same property, and the purchaser from her brought an ejectment against Young, upon which he was evicted. 6 Ohio, 313. This suit is brought upon the claim that the terms of the lease constitute a covenant by Maxwell Hargrave for quiet enjoyment during the life of Ann Hargrave.

The doctrine of implied warranty of real estate belongs to the ancient law. Although its application to leases for years has descended to our day, its relation to higher estates have *been nearly suspended by the adoption of express covenants in deeds. It is now little understood and nearly obsolete.

The ancient creation of estates consisted in the donation of land to the tenant, to be held of the donor, and reciprocal relations arose between them. From the tenant was due homage and the feudal services ; in return, the donor was bound to assure the enjoyment of the estate, which he undertook to confer. These duties were held to arise, not from express obligation, but from the nature of the tenure. They were imposed upon the tenant by his acceptance of the estate, and they might be exacted of the lord, who employed the term “dedi" or other term of donation by which estates were created. Hence Lord Coke says, “Where dedi is accompanied with a perdurable tenure of the feoffor and his heirs, there dedi importeth a perdurable warranty, for the feoffor and his heirs to the feoffee and his heirs. 2 In. 275. When ithe statute quia emptores in destroying the practice of subinfeudation, cut off the tenure between the feoffor and the feoffee and his ►heirs, the co-relative obligation of warranty could not be raised ¡against the heir of the feoffor. Still the feoffor was supposed to be ■bound by his own gift, and the warranty personally binding upon 'him for life. From hence follows the principle, which is sound, law, at this day, that whenever an estate, in freehold or in fee, is ■created by the word give, it implies a-warrant for the life of the .grantor.

In leases for years, the case is different. They were not originally regarded as estates in the land, but as contracts for the ■perception of the profits. The possession of the lessee was not ►regarded as in his own right, but as the possession of the grantor, .and the destruction of the freehold was attended with the destruction of the lease. The lessee had no means of redress or indemnity except upon the contract. The words of the lease “ yielding .and paying," etc., were construed a covenant by the lessee to pay rent; and the words “ grant, devise, etc.,” were held to imply a covenant on the part of the lessor to pay damages to the tenant if the possession was lost. A warranty, therefore, is implied, in ■ a lease, in a different sense from the implied warranty of a freehold. The latter depends on tenure, the former on contract. The remedies, too, were originally different. In the latter, the disseizee recovered the value in land ; in the former, damages only for the breach of the contract. Hence a warranty is ^implied from any contract, for the possession of lands amounting to a lease for years, no matter in what words it is framed ; but the warranty of a freehold is not implied, except from the feudal term of donation. No other word will answer — the' words “ grant, bargain and sell,” raise no warranty. Co. Lit. 384, a, Butler’s Note; 2 Black. Com. 300.

If this had been a lease for years, the warranty would have been implied, and the phraseology of the contract, or the employment of the word rent, although awkward and untechnical, would not affect the question. 2 Marsh. 302; Petherbridge v. Dugan, Hamilton Co. (O.) Supreme Court, 1828. But no authority is found to justify the annexation of a warranty of a freehold to any other term than the word give.

Judgment for the defendant.  