COVENANT TO CONVEY - The Law Mind Legal Dictionary

COVENANT TO CONVEYAuthored

The Law Mind • 937 words

Definition

A covenant to convey is a contractual promise by which one party (the covenantor) agrees to transfer title to a described parcel of real property to another party (the covenantee), typically upon the occurrence of specified conditions or circumstances. It is a form of conditional or future alienation of land — the covenantor does not immediately transfer the estate but binds himself by covenant to do so.

In practice, a covenant to convey frequently functions as a substitute for, or functional equivalent of, a conveyance paired with a mortgage back. The seller transfers the land by covenant rather than deed, and the buyer's obligation to pay the purchase price is embedded in the same instrument. This arrangement was historically common in several American states as an alternative to the standard deed-and-mortgage structure, achieving substantially the same economic result through different legal form.

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Common Confusion

A covenant to convey is easily confused with an actual conveyance. The distinction is decisive: a conveyance transfers title immediately and in rem; a covenant to convey creates a personal obligation — a promise to transfer — enforceable in contract or equity. Until the covenant is performed, legal title has not passed. Courts in equity, however, often treat a covenant to convey as creating equitable title in the covenantee once the conditions are satisfied, under the doctrine that equity regards as done that which ought to be done. Researchers must also distinguish a covenant to convey from a covenant of seisin or a covenant of right to convey, both of which are title assurance covenants that run with land already conveyed — they warrant the quality of a transfer already made, not a promise to make one.

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Why It Matters in Research

The covenant to convey is a historically significant instrument whose practical importance has declined sharply but whose traces appear throughout nineteenth- and early twentieth-century American land records and litigation. Several considerations bear on research:

First, jurisdictional prevalence matters. Historical sources confirm that this device was in frequent use in Pennsylvania, New York, Maryland, Illinois, and Ohio, among other states. Researchers working with land records or title chains from these jurisdictions should be alert to instruments styled as covenants rather than deeds, which may represent completed transfers of equitable interest even where legal title appears to remain in the covenantor.

Second, the functional equivalence to a deed-and-mortgage-back structure means that disputes arising under covenants to convey were often litigated in equity rather than at law, and the resulting precedents appear in equity reporters and chancery records that general legal research may overlook.

Third, assignment and privity questions arise. Because a covenant to convey is a personal covenant rather than one that necessarily runs with the land, the traditional rules of privity of contract govern its enforceability against successors. Unlike covenants of title running with land already conveyed, a covenant to convey does not automatically bind or benefit assignees without more — a distinction that generated significant litigation in the period of the instrument's greatest use.

Fourth, modern researchers may encounter the term in historical deed abstracts, title insurance underwriting files, or probate proceedings involving estates with outstanding land contracts. Understanding that the instrument creates equitable but not necessarily legal title is essential to tracing the chain of title correctly.

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Historical Dictionary Support

Both Black's and Bouvier's converge on the essential definition: a covenant by which the covenantor agrees to convey an estate to the covenantee under certain circumstances. Bouvier's is the more informative of the two on the instrument's practical context, noting its frequent use in American states and its functional equivalence to a conveyance paired with a mortgage back. The state citations Bouvier's provides — Pennsylvania, New York, Maryland, Illinois, and Ohio — confirm that the device was not a legal curiosity but a working instrument of land transactions in those jurisdictions.

What the historical dictionaries do not address is the equitable dimension: how courts of equity treated the covenantee's interest once conditions were met, and how that interest stood against third parties, particularly bona fide purchasers for value. Neither Black's nor Bouvier's entry discusses the recording act implications of a covenant to convey — a significant gap for researchers, since the question of whether an unrecorded covenant to convey would be cut off by a subsequent bona fide purchaser was actively litigated. The historical dictionaries also do not address the relationship between the covenant to convey and the modern installment land contract (or contract for deed), which is the contemporary successor instrument serving much the same purpose.

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Jurisdictional Note

The covenant to convey as a distinct transactional instrument was most developed in Pennsylvania, New York, Maryland, Illinois, and Ohio. In jurisdictions where installment land contracts (contracts for deed) became the dominant form of seller-financing, the covenant to convey largely fell out of independent use. Researchers should consult individual state recording statutes when assessing whether a historical covenant to convey would affect a modern title search.

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Encyclopedia Cross-Reference

realestate_21: Deed Covenants of Title — Present Covenants (Seisin, Right to Convey, Against Encumbrances) and Future Covenants (Warranty, Quiet Enjoyment, Further Assurances) | The Law Mind Real Estate Transactions & Construction Encyclopedia

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COVENANT TO CONVEYmain

Black's Law Dictionary • 1891

land, as being annexed to the estate, and which cannot be separated from the land, and transferred without it. 4 Kent, Comm. 472, note. A covenant is said to run with the land, when not only the original parties or their representatives, but each successive owner of the land, will be entitled to its ben- efit, or be liable (as the case may be) to its obligation. 1 Steph. Comm. 455. Or, in other words, it is so called when either the liability to perform it or the right to take ad- vantage of it passes to the assignee of the land.

COVENANT TO CONVEYmain

Black's Law Dictionary • 1891

A cove- nant by which the covenantor agrees to con- vey to the covenantee a certain estate, under certain circumstances.

COVENANT TO CONVEYmain

Bouvier's Law Dictionary • 1928

express covenants after an assignment by him; but not on implied ones; 4 Term 98; but he is liable to the assignee of the lessor on implied covenants, at common law; Platt, Cov. 532; 2 Sugd. Vend. 466; Burton, R. P. § 855. See 1 Washb. R. P. 526. In case of the assignment of lands in par- cels, the assignees may recover pro rata, and the original covenantee may recover according to his share of the original estate remaining; 2 Sugd. Vend. 508; Rawle, Cov. § 215; 36 Me. 170; 27 Pa. 288; 3 Metc. Mass. 87; 8 Gratt. 407; 9 B. Monr. 58. But covenants are not, in general, apportion- able; 27 Pa. 288. See Spencer's case, 1 Sm. Lead. Cas. 206. In Practice. A form of action which lies to recover damages for breach of a contract under seal. It is one of the brevia formata of the register, and is sometimes a concurrent remedy with debt, though never with assumpsit, and is the only proper remedy where the damages are unliqui- dated in nature and the contract is under seal; Fitzh. N. B. 340; Chit. Pl. 112, 118; 2 Steph. N. P. 1058. The action lies, generally, where the covenantor does some act contrary to his agreement, or fails to do or perform that which he has undertaken; 4 Dane, Abr. 115; or does that which disables him from per- formance; Cro. Eliz. 449; 15 Q. B. 88; 23 Pick. 455. To take advantage of an oral agreement modifying the original covenant in an es sential point, the covenant must be aban- doned and assumpsit brought; 27 Pa. 429; 24 Vt. 347. The venue is local when the action is founded on privity of estate; 2 Steph. N. P. 1148; 1 Wms. Saund. 241 b, n.; and transitory when it is founded upon privity of contract. As between original parties to the covenant, the action is transitory; and, by the statute 32 Hen. VIII. c. 34, an action of covenant by an assignee of the reversion against a lessor, or by a lessee against the assignee of the reversion, is also transitory; 1 Chit. Pl. 274. The declaration must, at common law, aver a contract under seal; 2 Ld. Raym. 1536; and either make profert thereof or excuse the omission; 3 Term 151; at least of such part as is broken; 4 Dall. 436; 4 Rich. 196; and a breach or breaches; 15 Ala. 201; 5 Ark. 263; 4 Dana 381; 6 Miss. 229; which may be by negativing the words of the covenant in actions upon cove- nants of seisin and right to convey; Rawle, Cov. § 176; or according to the legal effect; but must set forth the incumbrance in case of a covenant against incumbrances; id. § 86; and must allege an eviction in case of warranty; id. § 155. The disturb- ance must be averred to have been under lawful title; id. Noconsideration need be averred or shown, as it is said to be implied from the seal; but performance of an act which constitutes a condition precedent to the defendant's covenant, if there be any such, must be averred; 1 Chit. Pl. 116; 2 Greenl. Ev. § 235; 26 Ala. N. S. 748. The damages laid must be large enough to cover the real amount sought to be recovered; 3 S. & R. 364, 567. There is no plea of general issue in this action. Under non est factum, the defend- ant may show any facts contradicting the making of the deed; 1 Seld. 422; 1 Mich. 438; as, personal incapacity: 2 Campb. 272; that the deed was fraudulent; Lofft 457; was not delivered; 4 Esp. 255; or was not executed by all the parties; 6 Maule & S. 341. Non infregit conventionem and nil debet have both been held insufficient; Com. Dig. Pleader, 2 V, 4. As to the effect of cove nant performed, see COVENANTS PERFORMED. In respect to the damages to be recovered, see DAMAGES. The judgment is that the plaintiff recover a named sum for the damages which he has sustained by reason of the breach or breaches of covenant, together with costs. Sec INDEPENDENT COVENANT.

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