#### JOHN MIDGETT vs. ISRAEL BROOKS.

Where a deed for land, after setting forth the parties, the description ef the land and the interest conveyed, goes on as follows: “to have and to hold the above described.peice or parcel of land, free and clear from me, my heirs, executors, administrators and assigns, and from all other persons . whatsoever, unto the said, *&c.” Held,*that this clause contained a cove- . nant for quiet enj oyment.

No precise or technical language is required by law, in which a covenant shall be worded — any words, wheh amount to, or import an agreement, being under seal, are sufficient.

The cases of *Woodward,*v *Ramsay,*3 Hawks 335 [and *Hafncr*v *Irwin, 4*Dev. and Bat. 433, cited and approved.

Appeal from the Superior Court of Law of Hyde County, at the Spring Term 1851, his Honor Judge Caldwell presiding.

This was an action upon the covenant, contained in the following deed:

*“*This Indenture, made this 24th day of August, in the year of Our Lord one thousand eight hundred and thirty-nine, between William S. Douglas and John Midgett, both of the County of Hyde and State of North Carolina, wit-nesseth : That the said William S. Douglas, for and in consideration of the sum of one hundred and twenty dollars to him in hand paid by the said John Midgett, the receipt and payment of which is hereby acknowledged, hath bargained and sold, and by these presents doth bargain, sell and convey to him, the said John Midgett, his heirs and assigns forever, a certain piece. or parcel of land, situate and lying in the County and State aforesaid, in the settlement of Mount Pleasant, and beginning at, &c., (here the boundaries are described,) containing fifteen acres more or less, to have and to hold the above described piece or parcel of land free and clear from me, my heirs; executors, administrators and assigns and from all other persons whatsoever, *146unto him the said John Midgett, his heirs, executors, administrators aud assigns.

“In witness whereof, I, the said William S. Douglas, hereunto set my hand and seal the day and year above written.

(Signed.) WILLIAM S. DOUGLAS, (Seal.)

“ Sealed and executed i

1 in the presence of $

ReILY MURRAY,

“ Geo. H. Siiildon.”

The declaration contained acount on a covenant of seisin, •and also a count on a 'Covenant of quiet enjoyment. The •defendant pleaded the general issue — covenants performed. The following lacts are agreed upon : The plaintiff took, .possession of the premises described in the deed, and continued in possession until the death of the defendant’s intes-tate, the party to the said deed. After the death of the said ■intestate, a suit in ejectment was brought against the plaintiff by one' Samuel S. Pugh, who.had paramount title to the premises: a.judgment was recovered by him against the .plaintiff: the said Pugh sued out a writ of possession and -evicted the plaintiff from the premises on the 26th of Feb-ttary 1850.

•' "It is further agreed,' that, if the Court is of opinion that the plaintiff -can recover, a judgment shall be rendered -against the defendant for one hundred and twenty dollars, with interest from the 26th of February, 1850: if the Court Is of opinion that the plaintiff cannot recover, it is agreed, that .judgment of non suit be entered against the plaintiff.

The Court on the said case agreed is of opinion, that the. plaintiff is entitled to recover on the first count mentioned: and. thereupon it is considered, that the said plaintiff recover against the said Israel Brooks, &c. From this judgment ■the defendant appealed.

*147Donnell, for the plaintiff.

*Shaw,*for the defendant.

Nash, J.

This cause in here upon a case agreed. The* declaration contains two counts ; one on a covenant of sei-' sin, the other upon a covenant of quiet enjoyment. It is agreed, that if upon either count the plaintiff is entitled to a recovery, judgment shall be-rendered for him for the sum set forth. The alleged covenants are contained in a deed of bargain and sale for a tract of land, sold by William S. Douglas, who is now dead, to-the plaintiff. The deed, after' setting out in the premises the parties to it, and specifying the land, and the interest eonveyed, goes on as follows:: “To have and to hold the-above described piece or parcel of land free and clear from me, my heirs, executors, administrators and assigns and from all other persons whatsoever, unto the said John Midgett,. &c.” Midgett was sued and turned out of possession by paramount title.

We are of opinion, that the clause in the deed, as above-set forth, contains a covenant for quiet enjoyment. The defendant, through his counsel, insists, that the deed contains no covenant whatever. It is true, the word covenant or agreement, does not appear- in it, nor is it necessary that either of them should. No precise or technical language is required’by law, in which a covenant shall be worded — any words which amount to or import, an agreement, are sufficient, a covenant being an agreement or contract under seal;-. Platt on covenants 28; *Lamb and Morris,*1 Bur. 290. The words in the deed we are considering, upon their face import a promise or agreement on the part of Douglas, the vendor, that Midgett shall enjoy the premises free from disturbance from any one, claiming by title paramount; and that is a covenant for quiet enjoyment; *Woodward*v *Ramsay,*2. Haw. 335. The languge of the deed is, that he “ shall have and hold, that is, possess, the land iree and clear, &c.” It is. objected, however, that these words are-*148in the *habendum*of the deed, and constitute a part of it. By themselves, they properly constitute no part of the *ha-bendum.*The office of the *habendum*is to point out the interest or estate conveyed. The words, “ free and clear,” &c., go beyond that, and, in connction with the *habendum,*technically so called, are unmeaning. But it is a rule in the construction of deeds, that every: clause and word, if possible and consistent with law, shall have a meaning given to it. If, however, they do constitute a part of the *ha-bendum,*they certainly are out of place, but that circumstance ought not to deprive them of their existence and legal effect. It is the office of the premises to specify the parties to the deed and the thing *granted;*if, however, the name of the grantee appears for the first time in the *haben-dum,*it is sufficient; *Hafner v Irwin,*4 Dev. and Bat. 433; Coke on Lit. 26 b. note. Now, if a grantee may appear for the first time in the *habendum,*we can see no good reason, why a covenant may not. Had the words we are considering appeared in a separate clause to themselves, there can be no doubt as to their being a covenant for quiet enjoyment. The whole clause, however, is a covenant for quiet enjoyment. An *habendum*clause is not essential to the Validity or completeness of a deed — it may be entirely omitted without affecting its validity. The parties, the thing granted, and the quantity of estate may all be contained in the premises — and” such is the modern or most frequent mode of conveyances; 4 Kent’s Com., 468.

It is the duty of this Court to look into the whole case, and to pronounce such judgment as the Court below ought to have done; and believing that the deed contains a covenant for quiet enjoyment, judgment is given to the plaintiff.

Per Curiam. Judgment affirtaed.