dissenting. I consider that the word “ demise”- or “ grant” as alone being capable of raising an implied covenant on the part of a landlord in a lease. ' This I regard as the settled law, and do not feel myself at liberty to depart from it from any notions of justice or equity I may entertain in relation to the contrary opinion. It is the province of the courts to declare, not to make the law. It seems to me that a principle so well settled can not be overturned but by an act of the legislature. Many persons may have been advised and have drawn their leases in conformity-to the law as it was understood to be, and now to change it would be to subject them to damages contrary to good faith and the understanding of the parties. The idea of making-particular words, and them alone, imply a covenant, is not a novel one. Indeed it has long been found in our code. The words “ grant, bargain and sell,” by our statute create certain covenants. What would be thought of such a construction of the statute as would make any equivalent with raise the same covenants ? By a parity of reason, why why should they not do it ? When the common law among us is fixed and settled, courts have no more authority to disregard it than they have to disregard the statute law. If the common law declares that a particular word is necessary to *209imply a covenant, courts can no more say that an equivalent word shall have such an effect than they can hold that a word equivalent in import to a statutory word, which is made to create a covenant, shall have the force of the statutory word. The reasoning of the case of Frost v. Raymond, 2 Caines, 188, is strong in corroboration of the views here presented. It was there held that the words “ grant, bargain, sell, alien and confirm,” in a conveyance in fee, do not imply a covenant ; that it was implied by the word “ dedi” or “ give.” Chan. Kent observed, “ I am not able to assign a very solid reason for this distinction between the force and effect of the words £ give’ and ‘ grant.’ It arose from artificial reasons derived from the feudal law. The distinction has now become merely technical, but it is sufficient that it clearly exists and we are not certainly at liberty to confound the words or change their established operation. It is our duty to acquiesce in the law as we find it.”
The reversal of this judgment will in my opinion involve the violation of another principle of law as well established as any that prevails. To it there is no qualification or exception to be found in the books so far as I have been able to find. The principle is this, that an implied covenant determines with .the interest of the party out of whose estate it arises. Hence if a party take a lease for a certain term under an impression that the lessor is tenant in fee when in fact he is only tenant for life, the right of suing on that covenant will be' defeated by the lessor’s death, and the lessee left without remedy on eviction by the remainder man. Here the lessor or covenantor had an estate for life; he is dead, and,.even if there was an implied covenant, as the estate to which the covenant was annexed is determined, no action can be maintained against the lessor’s representatives. The authorities on this point all concur, and come down in an unbroken series from the earliest times to the present day. (Swan v. Stranham or Scarles, 3 Dyer, 257; Adams v. Gibney, 6 Bing. 156, 666.) I can not perceive how the principle can be affected by the fact that Christy, by a power of *210appointment, with which he was clothed, might have converted his life estate into a fee simple. He was under no obligation by contract to exercise that power; and how can his failure to do an act which he was not bound to do affect his rights ? In every case where the landlord fails to give a covenant for quiet enjoyment, he has it in his power to make good to the tenant any loss he may sustain by reason of his not having such a covenant. But will this ability affect his rights or change the nature of the liability he has incurred by reason of his contract ? I am aware of no principle by which such a result can be produced.
I am in favor of affirming the judgment.