
    Aaron Gates versus Elijah Caldwell and Al., Executors, &c. of Joseph Caldwell.
    There may be implied covenants, or covenants in law, in a deed containing express covenants; but such implied covenants must be consistent with those expressed.
    The declaration was “ in a plea of covenant broken, for that the said Joseph Caldwell, at said Barre, on the 19th day of August, 1806, then alive, by his deed, of that date, duly executed, acknowledged, and recorded, and in court to be produced, in consideration of 3400 dollars, paid him by the plaintiff, did grant, sell, and quitclaim, to him, his heirs and assigns, all the said Joseph Caldwell’s right, title, claim, and demand, in and unto the following pieces of land, with the buildings thereon, viz. &e., for a more particular description of the bounds of which said pieces of land, the said Joseph Caldwell referred to a mortgage deed thereof, made to him by one Perry, bearing date July 13, 1803, which deed [ * 69 J * had been duly acknowledged and recorded, and by which mortgage deed, as the plaintiff avers, the sum of 3000 dollars, with the interest thereon from the date thereof, was fully, sufficiently, and completely secured, to be paid to the said Joseph Caldwell, his heirs and assigns, by the said Perry, according to the said Perry’s note of hand, therefor given, to the said Joseph, of even date with the said mortgage deed, which mortgage deed and note were then in the possession of the said Joseph, in full force, and no part of said sum having been paid thereon ; and in and by his said deed the said Joseph did covenant with the said Gates, to warrant, secure, and defend, the said granted and quit-claimed premises to the said Gates, and his heirs and assigns, forever, against the lawful claims and demands of all persons claiming from, by, or under him; and also that the said Gates should have all the benefit of said mortgage deed, and note, and sum, of money, and interest due thereon from the said Perry, and secured thereby. Now the said Aaron in fact says that the said Joseph did after-wards, viz. on the 21st day of January, 1807, receive of the said Perry full satisfaction and payment of said sum of money due to him by said mortgage, and on said note, and did acknowledge and cause such satisfaction and payment to be entered in the margin of the record of said mortgage, in the register’s office in said county, in the following words, viz. “ I, Joseph Caldwell, mortgagee in the deed here recorded, having received all the money meant to be secured by said deed, do, in consideration thereof, release and discharge the 
      sameand did sign the same, whereby the said mortgage is wholly defeated, discharged, and released, so that the said Aaron cannot hold said land free from the claims and demands of all persons claiming by and under the said Joseph; and cannot have the benefit of said mortgage deed, note, or sum of money, or interest due thereon and secured thereby; and so the said Aaron saith that the said Joseph Caldwell his covenant aforesaid did not keep, but did break the same, to the damage,” &c.
    *The defendants, in a second plea in bar, pray oyer of [ * 70 ] the deed declared on, and when spread upon the record, it is found to contain only a covenant to warrant and defend the premises conveyed to the plaintiff and his heirs, &c., against the lawful claims of all persons claiming by or under the grantor; and not to contain the covenant respecting the mortgage deed, &c., alleged in the declaration. After oyer the defendants plead a bad plea, to which the plaintiff demurs generally, and the demurrer is joined by the defendants.
    
      Bigelow, for the defendants,
    contended that the declaration was bad, as alleging at the same time express covenants contained in the deed, and also other covenants, which might perhaps have been implied, if there had been no express ones. Where, in a deed, there are express covenants, none are implied.
    
      Bangs, for the plaintiff, was stopped by the Court.
   Curia.

The objection is to the declaration, and in a point of form only; it being contended, that as there were express covenants in the deed, it was not competent for the plaintiff to declare upon an implied covenant. We do not understand, however, that the declaration rests upon an implied covenant; but that the plaintiff has spread out at length what he apprehends to be the legal effect and operation of the express covenant; and this he has a right to do, although in this case it seems not to have been necessary.

But we do not admit that there can be no covenants in law, or implied covenants in deeds which contain express covenants. There can be none contradictory to express covenants, but there may be implied covenants, which are consistent with those expressed in the deed. The plea in bar is bad and insufficient, and judgment must be entered for the plaintiff.  