It is necessary first to shew the appointment of the commissioner, either by a record of his appointment, or his commission, and to shew the sale by his deed.' Nothing short of that can be admitted.
Chipman, Ch. J., in his charge to the Jury, after stating the evidence, observed — In the determination of this cause, it will be necessary to fix the true construction of the covenant'contained in the deed, from the defendant to the plaintiff; the words of which are, «To have and to hold, &c. so that I the said B., my heirs or assigns, nor any person claiming under New-IIampshire, shall ever have any right, tjtle, interest or demand thereto, but shall, by these presents, be for ever barred and excluded.”
It is not precisely a covenant of warranty, nor is it a covenant of seisin; yet it partakes of the nature of that covenant, so that within certain limits, it is an engagement against every existing right, title, &c. paramount and adverse to the title supposed to have been conveyed by the defendant, although the same may never have been exercised or prosecuted to the actual disturbance of the plaintiff.
The plaintiff has proved that the township of Castleton, in the year 1761, was granted to sixty proprietors as tenants in common. No division appears to have been made, either before or since the defendant’s sale to the plaintiff; so that there appears to be an adverse title in the proprietors under the New-IIampshire grant. For if the defendant should appear to have the right of one or more of those tenants in common, yet, before a legal division or partition, he could not as against the other tenants, sell and convey the title to any particular tract by metes and bounds.. This is giving the *100covenant the construction of a covenant of sesin, which the parties seem to have avoided in drawing the deed.
On the other hand, for the defendant it is contended that this covenant must have the construction of a covenant of warranty. — That it amounts to a covenant against the exercise of an adverse right, &c. derived under the defendant, his heirs or assigns, or, under New-Hampshire, by any person, to the actual prejudice of the plaintiff’s right. — That of course, nothing short of the exercise and prosecution of such adverse right, operating as an actual ouster of the plaintiff’s right in the granted premises, can prove a breach of the covenant. ,
In construing covenants, we should endeavour to discover the true meaning of the parties to the contract, and this we must collect from the contract itself, giving due wéightto all the operative words connected with the covenant.
Considering it in this connexion, it seems to. me, that the true construction of the covenant is, that the defendant in his deed of conveyance, covenanted against every right, title, &c. under him, his heirs and assigns, or under the New-Hampshire grant, whereby any person should actually defeat, in whole or in part, the plaintiff’s title as derived from the defendant, and there was no view of engaging against any dormant right, title or claim, unless put in exercise to the prejudice of the plaintiff’s claim.
To this construction we are led, by attending to the concluding words of the covenant, in connexion with what precedes — “ but shall be by these presents, for ever barred and excluded.” — This, it seems to me, qualifies the generality of the covenant, and limits it to extend to adverse rights, &c. exercised or prosecuted, not to those which are suffered to lie for ever dormant, so that there can be no opportunity of determining whether they might be barred and excluded by the defendant’s deed or not. Upon this construction, these words will operate agreeably to a known rule in the construction of covenants — that the generality of a covenant may be restrained by particular expressions. These last words must have this effect, as it appears to me, or be considered as mere surplussage. The covenant then will have merely the effect of a covenant for quiet enjoyment, under certain limitations.
Sf we take this to be the true construction, the plaintiff has not *101shewn a breach of the covenant; for nothing appears but that the plaintiff, or those who derive through him or his title, still hold and enjoy the land described in the deed from the defendant.
Verdict for the defendant,