COVENANT (Lat. convenire, to come together; conventio, a coming together. It is equivalent to the factum convent= of the civil law).
In Contracts. An agreement between two or more persons, entered into by deed, whereby one of the parties promises the per formance or non-performance of certain acts, or that a given state of things does or shall, or does not or shall not, exist. It differs from an express assumpait in that it must be by deed.
2. Affirmative covenants are those in which the covenantor declares that something has been already done, or shall be done in the future. Such covenants do not operate to deprive covenantees of rights enjoyed inde pendently of the covenants. Dy. 19 b ; Leon. 251.
Covenants against incumbrances. See CO VENANT AGAINST INCUMBRANCES.
Alternative covenants are disjunctive cove nants.
Auxiliary covenants are those which do not relate directly to the principal matter of con tract between the parties, but to something connected with it. Those the scope of whose operation is in aid or support of the principal covenant. If the principal covenant is void, the auxiliary is discharged. Anstr. 256 ; Prec. Chanc. 475.
3. Collateral covenants are those which are entered into in connection with the grant of something, but which do not relate imme diately to the thing granted: as, to pay a sum of money in gross, that the lessor shall dis train for rent on some other land than that which is demised, to build a house on the land of some third person, or the like. Platt, Ccv. 69 ; Sheppard, Touchst. 161 ; 4 Burr. 2439 ; 3 Term, 393 ; 2 J. B. Moore, 164; 5 Barnew. & Ald. 7 ; 2 Wils. 27 ; 1 Ves. Ch. 56.
Concurrent covenants arc those which are to be performed at the same time. When one party is ready and offers to perform his part, and the other refuses or neglects to perform his, he who is ready and offers has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act. Platt, Coy. 71 ; 2 Selwyn, Nisi P. 443; Dougl. 698 ; 18 Eng. L. & Eq. 81; 4 Wash. C.
C. 714; 16 Mo. 450.
4. Declaratory covenants are those which serve to limit or direct uses. 1 Sid. 27 ; 1 Hob. 224.
Dependent covenants are those in which the obligation to perform one is made to depend upon the performance of the other. Covenants
may be so connected that the right to insist upon the performance of one of them depends upon a prior performance on the part of the party seekin enforcement. Platt, Cov. 71; 2 Selwyn, Nisi P. 443 ; Stephen, Nisi P. 1071; 1 C. B. N. s. 646 ; 6 Cow. N. Y. 296 ; 2 Johns. N. Y. 209; 2 Watts & S. Penn. 227 ; 8 Serg.
& R. Penn. 268 ; 4 Conn. 3 ; 24 id, 624 ; 11 Vt. 549 ; 17 Me. 232 ; 3 Ark. 581 ; 1 Blackf. Ind. 175 ; 6 Ala. 60 ; 3 Ala. N. s. 330. To ascertain whether covenants are dependent or not, the intention of the parties is to be sought for and regarded, rather than the order or time in which the acts are to be done, or the structure of the instrument, or the ar rangement of the covenant. 1 Wms. Saund. 320, n.; 7 Term, 130 ; 8 id. 366 ; Willes, 157 ; 5 Bos. & P. 223 ; 36 Eng. L. & Eq. 358 ; 4 Wash. C. C. 714 ; 4 Rawle, Penn. 26 ; 2 Watts & S. Penn. 227 ; 4 id. 527 ; 2 Johns. N. Y. 145 ; 5 Wend. N. Y. 496 ; 5 N. Y. 247 ; 1 Root, Conn. 170; 4 Rand. Va. 352.
5. Disjunctive covenants. Those which are for the performance of one or more of several things at the election of the covenantor or covenantee, as the case may be. Platt, Cot'. 21; 1 Du. N. Y. 209.
Executed covenants are those which relate to acts already performed. Sheppard, Touchst. 161.
Executory covenants are those whose per formance is to be future. Sheppard, Touch6t. 161.
Express covenants are those which are created by the express words of the parties to the deed declaratory of their intention. Platt, Coy. 25. The formal word covenant is not indispensably requisite for the creation of an express covenant. 2 Mod. 268 ; 3 Kehl. 848 ; 1 Leon. 324; 1 Bingh. 433 8 J. B. Moore, 546 ; 12 East, 182, n.; 16 7d. 352 ; 1 Bibb, Ky. 379 ; 2 id. 614 ; 3 Johns. N. Y. 44 ; 5 Cow. N. Y. 170 ; 4 Conn. 508 ; 1 Ilarr Del. 233. The words "I oblige," "agree," 1 Ves. Ch. 516 ; 2 Mod. 266, "I bind myself," Hardr. 178 ; 3 Leon. 119, ltave been held to be words of covenant, as are the words of a bond. 1 Chanc. Cas. 194. Any words showing the intent of the parties to do or not to do a cer tain thing, raise an express covenant. 13 N. II. 513. But words importing merely an order or direction that other persons should pay a sum of money, are not a covenant. 6 J. B. Moore, 202, n. (a).