JOHN H. McSWEEN T R id«7 \ ^ THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW BOOKSTORE BATON ROUGE /. A PRACTICAL TREATISE ON THE LAW OF COVENANTS FOR TITLE BY WILLIAM HENRY RAWLE, LL.D. FIFTH EDITION REVISED AND ENLARGED BOSTON LITTLE, BROWN, AND COMPANY 1887 Copyright, 1SS7, By William Henry Rawle. „ T University Press: John Wilson and Son, Cambridge. PREFACE TO THE FIFTH EDITION. Since the publication of the last edition, the law upon the subject of this treatise has been much amplified by judicial decision, and important legislation has been enacted upon the subjects of implied covenants for title, the form of covenants, covenants by married women, covenants running with the land, and the operation of covenants by way of estoppel. The last subject has, in particular, been carefully reconsidered in the eleventh chapter, and it is believed that a more comprehensive view of the law is now presented. This growth of the subject has required the introduc- tion of much new matter, but as the old has been con- densed, the size of the volume is not increased. To his former pupil, Mr. Charles Chauncey Binnef, as also in part to Mr. Frederick M. Leonard, the author is indebted for efficient aid in the preparation of this edition. Philadelphia, October, 1887. 819994 CONTENTS. CHAPTER I. WARRANTY AND THE INTRODUCTION OF COVENANTS FOR TITLE. Page Warranty at common law 2 Modified by statutes dc bigamis, of Gloucester, and of quia emptores . . 3 Indirect effect of statute de donis 5 Consequent introduction of collateral warranty to bar estates tail ... 6 Its effect until Taltarum's case 9 Statutory restraints upon collateral warranty 11 Remedy on warranty by warrantia chartce and by voucher 12 Damages upon recovery 14 When superseded by covenants for title 16 Probable reasons therefor 17 Object, number, and advantage of covenants for title 17 Their introduction into the American Colonies 18 CHAPTER II. THE USUAL COVENANTS, AND WHAT COVENANTS THE PURCHASER HAS A RIGHT TO EXPECT. Introduction of modern law of vendor and purchaser 20 Natural difference between the rules in England and America .... 21 The " usual covenants " in England 22 In sales in fee simple 23 Form of covenants in 24 In settlements 25 In mortgages 26 In assignments or transfers of leaseholds 26 In common leases 26 Recent English statutes as to implied covenants 29 Conveyancing and Law of Property Act, 1881 27 The " usual covenants " in America 28 Their form 29 Covenants of non-claim 29 VI CONTENTS. Page Statutory provisions for forms of conveyances 30 Covenants usually required from different classes of vendors .... 30 1. Those conveying in their own right 31 In England, covenants only extend to vendor's own acts or those of the last owner claiming by purchase 31 Covenants from joint tenants and tenants in common 32 By married women 32 Effect of recent legislation 32 In mortgages, unlimited covenants usually required 32 Theory of English conveyancing as to covenants by every one in chain of title 34 Difficulty as to precise rules in United States 35 Various local practice in conveyancing 36 Question of " usual covenants " rather of fact than of law .... 40 But purchaser's right to good title not affected by covenants ... 40 2. Fiduciary vendors 43 Covenants by trustees 44 by cestuis que trust 44 by agents 47 When fiduciary vendors are personally liable on their covenants . . 48 3. Ministerial vendors, sheriffs, marshals, etc. ; no covenants required from these 50 Nor from the sovereign power 51 CHAPTER III. THE COVENANT FOR SEISIN. Seisin as distinguished from title and possession 52 Warranty originally assured both 53 Effect of introduction of Statute of Uses 53 American doctrine that covenant for seisin is satisfied by an actual though tortious seisin 54 Its origin 54 Marston v. Hobbs 54 Applied also to covenant for right to convey 55 Dissent from the doctrine 59 Reasons upon which it is supposed to be based 60 Probably arose from champerty acts 61 Origin and sketch of those statutes 62 Extent of their application in the United States 64 Effect of such statutes upon the covenants 67 Question whether, apart from their operation, the covenant is broken by adverse possession 69 Covenant for seisin generally regarded as a covenant for the title as dis- tinguished from possession 71 It- definition 72 CONTENTS. Vll Pa^e What constitutes its breach 72 Not broken by easements not affecting the seisin 74 Pleadings 76 sufficient to negative the words of the covenant 70 unnecessary to aver eviction or lay special damage 77 or to set forth particulars of the paramount title 77 Burden of proof lies on the defendant 79 except when altered by statutory system of pleading 80 CHAPTER IV. THE COVENANT FOR RIGHT TO CONVEY. When synonymous with the covenant for seisin 82 When introduced in place of it 82 Has superseded it in England 82 Breach 83 Pleadings and damages 84 CHAPTER V. THE COVENANT AGAINST INCUMBRANCES. In England, generally supplementary to covenant for quiet enjoyment . 85 Effect of this as to the parties 86 the pleadings 86 the measure of damages 86 In America, is generally a separate covenant 86 And held to be broken as soon as made 86 But when joined to covenant for quiet enjoyment, runs with land ... 86 Vane v. Lord Bernard 87 Distinction between this covenant and a covenant to discharge incum- brances 88 Lethbridge v. Mytton 89 Definition of incumbrance 90 What constitutes a breach of the covenant 90 Distinction between such incumbrances as affect the title and those which affect only the physical condition of the property 91 Covenant broken by existence of judgment 91 Mortgage or other lien 91 Right of dower 91 Taxes or assessments 92 Prior lease 94 Restrictive covenants 94 viii CONTENTS. Page Easements 98 Distinction between such as are or are not physically apparent . . 98 Public roads or highways 99 Kellogg v. Ingersoll 99 Patterson v. Arthurs 100 Rights of water 103 of light and air 107 When covenant qualified by nature of estate conveyed 107 What constitutes an incumbrance is a question of law 108 Subject at times to local usage and habit 108 Pleadings 109 Plaintiff must aver the specific incumbrance 109 And damages should be laid with reasonable certainty 109 Burden of proof rests on plaintiff Ill Known incumbrances should be excepted from the covenant .... Ill For protection of the vendor Ill As parol evidence inadmissible to show intended exception . . Ill And purchaser's notice of incumbrance no bar to his recovery upon the covenant 112 And possibly for protection of the purchaser 116 Local statutory provisions as to vendor's concealment of incumbrance . 117 CHAPTER VI. THE COVENANT FOR QUIET ENJOYMENT. Essential difference between it and the covenants for seisin and of right to convey 119 Definition 119 How limited 119 Decision as to effect of words " by, from, or under" 120 " acts and means " 123 "default" 124 "means, title, or procurement " 127 Covenant broken only by eviction 128 Pleadings and burden of proof . . 128 CHAPTER VII. THE COVENANT FOR FURTHER ASSURANCE. Advantage of this covenant 129 Its practical effect 130 Practice as to requiring its performance 130 What acts can be required under it 131 CONTENTS. ix Page Acts must be necessary 131 practicable 131 lawful 131 made within reasonable time 131 When removal of incumbrance may be required 132 Purchaser's rights under this covenant may depend, — 1. Upon the scope of the other covenants 132 2. Upon the nature of the estate conveyed 133 Covenants not demandable in deed of further assurance itself .... 137 Pleadings 137 CHAPTER VIII. THE COVENANT OF WARRANTY. Distinction between this covenant and the common law warranty . . . 140 It has no place in English conveyancing 140 Action of covenant could not be brought on warranty 142 Pincombe v. Kudge 143 Covenant of warranty generally synonymous with that for quiet enjoyment 148 The covenant of non-claim 150 Definition of covenant of warranty 151 Ancient practice of vouching to warranty 151 Modern analogy as to notice to covenantor of suit under paramount title 152 Effect of such notice 152 What is proper notice 154 Notice in writing the better practice 155 When question of notice is for the jury 157 Upon whom burden of proof rests 160 Effect of the judgment where there is no notice 161 Notice not necessary to recovery 163 Review of cases upon the subject of notice 164 Covenant of warranty or of quiet enjoyment general or limited . . . 165 1. Not broken by tortious disturbance 165 Hayes v. Bickerstaff 165 Exceptions: — 1. The covenant extends to all acts of the covenantor 167 2. And to all those of a particularly named person 169 3. And when the intention appears to protect against all claims or pretended claims 170 2. Covenant not broken by acts of sovereignty 171 1. Eminent domain 171 2. Other lawful acts 171 3. Acts of sovereign de facto 172 3. When broken by a suit in equity 173 Eviction necessary to constitute a breach 173 Actual eviction, — 1. Need not be by process of law 174 The older cases in New York overruled 174 X CONTENTS. Page 2. Where the dispossession is by entry 175 3. "Where the possession is voluntarily surrendered 175 Paramount title must have been hostilely asserted 177 Purchaser assumes burden of proof 178 Constructive eviction, — 1. By the inability of the purchaser to obtain the possession . . . 179 Holder v. Taylor 179 Application of this to uncultivated lands 183 Outstanding title must be actually paramount 188 2. Where the covenantee compulsorily purchases or leases the para- mount title after its establishment by judgment 189 Suggested analogy to the rule which prohibits a tenant from disputing his landlord's title 187 Analogy fails as between vendor and purchaser 190 Waldron v. McCarty 191 No distinction between leasing and purchasing 197 3. Where the covenantee compulsorily purchases or leases the para- mount title without its establishment by judgment .... 197 Cases in which the whole question can be settled in equity . 201 Distinction in this respect between covenants for quiet en- joyment and warranty, and those for seisin and against incumbrances 202 Necessary under the former that paramount claim should be hostilely asserted 202 4. Where the loss is of what represents the land, or is an incident to its enjoyment 206 Mitchell v. Warner 207 Dobbins v. Brown 208 Review of the cases upon the subject of eviction 216 Pleadings 217 Burden of proof is on plaintiff in the first instance 219 CHAPTER IX. THE MEASURE OF DAMAGES. Comparative scarcity of English authority on the subject 220 Damages relatively to increased value of the land 222 Damages on covenants for seisin and against incumbrances measured by consideration money 222 Staats v. Ten Eyck 222 Bender v. Fromberger 222 Pitcher v. Livingston 223 On covenants for quiet enjoyment and of warranty 224 In some States measured by value of land at time of eviction . . . 225 Horsford v. Wright 225 Gore v. Brazier 225 Weight of authority is that consideration money forms the proper measure of damages 227 CONTENTS. XI Page Review of decisions upon this subject 229 Reasons for the rule that, as between vendor and purchaser, the value of improvements cannot be recovered 232 Exceptions to rule, — 1. When rule of caveat emptor not applicable 234 Cases of " common leases " 234 Lock v. Furze 235 Mack v. Patchin 237 Lanigan v. Kille 239 2. When intended improvement is part of the contract 242 Neither vendor nor purchaser concluded by the consideration clause . . 244 Where no consideration named, other evidence of value admitted . . . 247 How far damages can be recovered on a technical breach of the covenant for seisin 248 Doctrine that an after-acquired title will defeat the purchaser's action on the covenant for seisin 253 Objections to it 254 Tucker v. Clarke 258 Correct rule 259 Recovery of damages sometimes held to revest the title in the covenantor 262 Upon partial breach of the covenant for seisin, purchaser must recover pro tanto 264 Upon failure of title to specific part, either party may produce evidence to prove the relative value which it bore to the whole 265 Morris v. Phelps 266 But cannot rescind the contract 268 Damages upon covenant against incumbrances 269 Nominal damages only for technical breach 270 When incumbrance cannot be removed, the extent of damage is for the jury 272 When the incumbrance is an easement 273 When a term of years 274 When incumbrance has been removed, plaintiff entitled to recover amount actually paid . 275 Provided it does not exceed the consideration money 277 Dimmick v. Lockwood 278 Damages upon the covenant for further assurance 279 King v. Jones 279 Interest on the consideration money allowed as damages 281 To counterbalance claim for mesne profits 281 And if no such claim exists, interest not recoverable 281 When expenses recoverable as damages 284 1. Taxed costs of suit 284 Smith v. Compton 284 Difference between costs in England and in United States . . . 285 2. Counsel fees 289 3. Other expenses 289 Effect of notice to covenantor on right to recover such expenses . . . 289 ill CONTENTS. CHAPTER X. THE EXTENT TO WHICH COVENANTS FOR TITLE RUN WITH LAND, AND HEREIN OF THEIR RELEASE. Page Common law rule prohibiting assignment of choses in action .... 292 Doctrine of covenants running with the land an exception 292 Origin of the doctrine obscure 294 Pakenhatn's Case .... 296 Owner of the laud entitled to benefit of all warranties and covenants of prior owners 300 Benefit and burden of warranty descended upon heir 301 Covenants for title after breach survive to executor 301 Until breach, all covenants for title run with the land 301 In United States, covenants for seisin, of right to convey, and perhaps against incumbrances, held to be broken as soon as made 301 Aliter of covenants for quiet enjoyment, of warranty, and for further assurance 302 Greenby v. Wilcocks 302 Sir Perall Brocas' Case 303 Lucy v. Levington 304 Lewes v. Riclge 304 In England, held that all the covenants for title run with the land . . 306 " Conveyancing and Law of Property Act, 1881 " 309 Statutory provisions in Maine and other States 310 English rule adopted in Missouri, Ohio, Indiana, Wisconsin, and Iowa . 312 As to covenant against incumbrances, generally held that it is broken as soon as made 316 Unless when linked with a prospective covenant 316 But covenants for quiet enjoyment and of warranty everywhere held to run with the land 318 English practice in vesting benefit of covenants in purchaser .... 319 Covenantee may sue all prior covenantors and recover several judgments 319 But can have only one satisfaction 320 Divisibility of covenants for title 320 Limitations as to liability of prior vendors 321 Kane v. Sanger 321 Booth v. Starr 322 Doctrine that the covenants pass with the legal estate, as applied to mortgages 323 Result in England and Kentucky 324 In England and most of the United States, covenants pass with the equity of redemption 325 Where covenants pass with mortgage, mortgagor entitled to relief in equity 327 Thornton v. Court 327 Release of covenants after conveyance of land ineffectual against pur- chaser 329 Effect of parol release by owner 330 CONTENTS. Xlll Page Subsequent purchaser not bound by equities between covenantor and covenantee 331 Suydam v. Jones 331 Release of covenants by covenantee while owner of land bars subse- quent purchasers 332 But not unless recorded 333 Right of assignee to sue in name of his assignor on covenants for seisin and for right to convey 336 Difficulty as regards covenant against incumbrances 338 Effect of release of covenant for seisin 338 Covenant of further assurance runs with the land until determinate damage suffered 339 In Maine, covenant of non-claim does not run with land 340 Doctrine that want of estate will deprive covenants of their capacity of running with land 340 Noke v. Awder 341 Doctrine not obviated by operation of estoppel 342 Weight of authority is that possession taken under deed carries benefit of covenants to assignee 343 Beddoe v. Wadsworth 343 Slater v. Rawson 344 Noke v. Awder explained in England 349 And its application limited 349 CHAPTER XI. THE OPERATION OF COVENANTS FOR TITLE BY "WAT OF ESTOPPEL OR REBUTTER. Effect of warranty by way of rebutter 351 Statutes of Gloucester and Henry VII 352 Effect of statute of 4 Anne upon collateral warranty 353 Re-enactment of these statutes in some of the United States .... 355 In others, doctrine of collateral warranty held inapplicable 356 Difference between liability of heir to respond in damages upon his an- cestor's warranty and its effect as an estoppel 358 Effect of warranty by way of rebutter 359 Distinction between it and doctrine of estoppel 359 Ordinary and personal effect of estoppel 359 Exceptional effect in cases of feoffment, fine, or common recovery as to passing both present and after-acquired title 360 But this effect confined to these modes of assurance 362 And never applied to deeds of grant or release 362 or those taking effect under Statute of Uses 363 Effect of recitals by way of personal estoppel or rebuttal 363 Early New York decision that after-acquired title would pass by deeds of grant or release 364 But later current of authority contra 365 XIV CONTENTS. Page In general, such effect held to depend on presence of covenants . . . 366 And that the after-acquired title passes by direct operation of law . 367 Statutory provisions in different States 368 Grounds upon which the doctrine is based 370 In general, where no right of action on the covenants exists, no estoppel held to arise 370 In Maine and New York, no estoppel caused by covenant of non-claim . 370 Limitations of doctrine of estoppel 371 When covenants are restrained by the estate conveyed 371 satisfied by the possession transferred 372 released or extinguished 372, 374, 375 limited to acts of grantor 373 to specified claims 373 barred by statute of limitations 374 when deed does not pass estate 375 after-acquired estate must be held in same right 375 Doctrine generally based on preventing circuity of action 376 Exceptions : — 1. When question arises between the assignees of the different titles 376 2. In cases of married women . . 376 3. In grants from States 378 Contrary doctrine in North Carolina 378 4. When covenantor is bankrupt 378 5. And in Massachusetts, although covenants are barred by statute of limitations 379 What covenants will thus pass an after-acquired estate 3S0 Covenant of warranty 381 But not when implied from partition 381 Nor where estoppel is mutual 381 Nor when prohibited by statute .... 381 Covenant for further assurance passes estate in Illinois and Wisconsin 384 Contra in Missouri and Minnesota 383 When covenant of good right to convey and quiet enjoyment pass subsequent title 383 In Maine, covenant of non-claim creates no estoppel of itself . . . 384 Nor when joined to covenant against incumbrances .... 384 In Illinois, covenants implied from "grant, bargain, and sell" transfer after-acquired title 384 Contra in Missouri 385 Effect of passing after-acquired estate given to other covenants than technical covenants for title 386 Doctrine reviewed and criticised 387 Passages of Littleton and Coke upon which it has generally been based . 388 Their explanation 388 Decisions may properly be rested on what was the intention of the parties 394 1. As shown either by the covenants 394 2. Or by recital, averment, or the like 394 But the effect is only that of personal rebutter 397 And cannot actually pass all after-acquired estates, irrespective of their acquisition 397 CONTENTS. XV Page Result of doctrine that after-acquired estate actually passes 397 1. Between purchaser and immediate grantor 397 The after-acquired estate relates back to conveyance to purchaser 398 And deprives the latter of his option to damages on the broken covenants 398 Dissent from such result, and option held to be that of purchaser and not of grantor 400 2. Between purchaser and a subsequent purchaser from grantor . . 402 Extent to which doctrine has been carried 403 Is opposed to theory of registry acts 405 And hence is refused to be so applied in several States .... 406 Current of decisions in Pennsylvania 410 Theory of registry acts protects purchaser by absence of con- structive notice 413 But such protection unavailing as against actual notice .... 413 Effect of possession as such notice 414 Result as to uncertainty of title 415 As possession is matter of evidence, rather than of law . . 415 Effect of American statutes as to the doctrine 416 English doctrine 416 No estoppel caused by covenants 416 But they may create an equity to require the conveyance of after-acquired estate 417 But which cannot be enforced against a purchaser without notice 419 Summary of the authorities 422 The doctrine has no necessary connection either with the law of es- toppel or of covenants for title 423 But is purely equitable 423 Administered by the American decisions through the medium of common law forms 424 Purchaser not estopped by covenants in his mortgage for purchase-money 424 Estoppel by consideration clause 428 Estoppel of grantee not created by acceptance of estate 428 Sparrow v. Kingman 429 Unless purchaser has himself the valid title 430 Purchaser not estopped from denying accuracy of recital of title . . . 431 CHAPTER XII. IMPLIED COVENANTS FOR TITLE, AND HOW COVENANTS MAT BE LIMITED OR QUALIFIED. Implied warranty at common law 433 Originally as an incident of tenure 433 And afterwards from the words of grant or of leasing 433 How altered by statutes de bigamis and quia emptores 435 Remedies of procedure upon express and implied warranties the same . 436 XY1 CONTENTS. Page But difference as to those bound and exempted by them 437 Implied warranties did not run with the land 437 Express warranty not limited by implied warranty 437 Covenants implied from words of leasing 437 or from relation of landlord and tenant 438 altered by legislation in some States 438 But covenants not implied in assignment of leaseholds 439 In parol leases, covenant for quiet enjoyment is implied 439 But not of power to demise 440 Distinction between covenants implied in feoffments and in leases . . . 443 In leases, express covenants limit implied ones 443 Nokes' case 443 Aliter in feoffments 443 Implied covenants in leaseholds endure no longer than estate granted . 443 Warranty implied in exchange of lands 444 Afterwards from the word of exchange 444 Practical objection to doctrine as to " double title " .... 445 Partially altered by legislation 445 Warranty and condition of re-entry implied in partition 446 At common law only coparceners had right to partition 446 Extended to joint tenants and tenants in common by statute of Henry VIII 446 Reason why warranty was so implied 447 Covenants not implied from recitals 450 Warranty implied from dedi 451 Statute of 6 Anne, by which certain covenants are implied from the words grant, bargain, and sell 452 " Real Property Act " of 8 & 9 Vict, as to short forms of covenants . . 453 " Conveyancing and Law of Property Act," 44 & 45 Vict 454 Statute of Anne partially re-enacted in Pennsylvania 455 Its judicial construction there 457 No implied statutory covenants in New England States 459 New York statutes that no covenants shall be implied in any convey- ance of real estate • . . . 459 But this held not to extend to leases 459 Similar legislation in some other States 459 Pennsylvania statutes re-enacted in some States 460 And modified in others 461 How covenants may be limited or qualified by others in the same deed 472 1. Restrictive words in first of several covenants having the same object will qualify subsequent covenants 473 Browning v. Wright 474 But not if the covenants have different objects 479 Howell v. Richards 480 Duval v. Craig 4S1 Nind v. Marshall 482 2. Subsequent limited covenant will not restrain preceding gen- eral covenant, unless intention appear, or covenants are inconsistent 487 CONTENTS. XV11 Page 3. Preceding general covenant will not enlarge subsequent limited covenant 491 4. When covenants are distinct, restrictive words in one do not con- trol generality of others 492 Covenants may be limited by express agreement 493 And certain defects or incumbrances excepted from them 492 Reformation of covenants in equity 493 Covenants apply to premises contained within the boundaries, not to any enumeration of acres 494 Covenants restrained by interest conveyed 495 But not unless such intention appears in the deed 498 CHAPTER XIII. TIIE PARTIES BOUND AND BENEFITED BY COVENANTS FOR TITLE. Liability of the covenantor 502 Question when material in the marshalling or administration of assets 502 When dependent upon action being local or transitory 503 How altered by legislation 504 How affected by bankruptcy 505 Whether damages from breach of covenant provable as debt or damages 506 When covenant is joint or several 508 On implied covenants, coextensive with estate granted . . . 510 Of married women 509 1. At common law, — None, except possibly in the case of a fine 509 But not in more modern modes of assurance 510 2. As to their estate in equity 511 English doctrine that such estate is bound by their covenants . 511 In United States, divergence of authority 511 3. Under " Married Women's Acts " 511 Various legislation in different States 512 English " Married Women's Act, 18S2 " 513 Liability of the heir 514 At common law 515 Must be named in the obligation 515 And have assets by descent 515 Creditor's remedy under statute of Westminster the Second . 516 And by subsequent legislation 517 Broader theory of the law in United States 519 In general, all lands of decedent liable for all his debts . . . 519 Liability of the devisee 522 At common law 522 Not bound by covenants of his testator 522 Nor could the land be subjected thereto 522 b XV111 CONTENTS. Page Statute of fraudulent devises 522 Its restricted judicial interpretation 523 More recent English legislation 523 Liability of the executor 524 Bound by testator's covenant though not named 524 And whether covenant is broken before or after his death .... 524 Liability of the assignee 526 Cannot arise in conveyance of a fee 526 But in conveyance of leaseholds, covenants bind assignee of the reversion 520 Rights of covenantee 527 Depend on nature of covenant 527 Upon covenants broken as soon as made, presumption of release or satisfaction from lapse of time runs from date of deed .... 527 Upon other covenants, runs from breach 528 Joint and several covenants 528 Depend upon interest conveyed 528 Coparceners must sue jointly 529 Tenants in common may sue jointly or separately 530 Rights of heir and devisee 531 Upon warranty, heir could not sue unless named 531 Aliter in covenants for title which run with land 532 But not if breach occurs during lifetime of covenantor 532 Rights of executor or administrator 532 Entitled to benefit of covenants of which decedent could have taken advantage 532 So of covenants broken before his death 533 Rights of assignee: — Could not take advantage of warranty implied from dedi .... 532 Aliter from words concessi or demisi . 533 Can take advantage of covenants without being named 533 Provided the covenants are such as run with the land .... 533 CHAPTER XIV. THE PURCHASER'S RIGHT AT LAW TO RECOVER BACK OR DETAIN THE PURCHASE MONEY AFTER THE EXECUTION OF THE DEED. Distinction between executory and executed agreements 534 Connection between purchaser's right to relief and covenants for title . 535 After execution of deed, purchaser can neither detain nor recover back purchase money 536 Except where there has been fraudulent representation or concealment . 537 Cases in the House of Lords 537 Edwards v. McLeay 537 Small v. Attwood 539 CONTENTS. XIX Page What constitutes fraud 539 Simplex commendatio non obligat 543 Distinction between suppressio veri and allegatio falsi 543 How far covenants entitle purchaser to relief from payment of purchase money 549 Principles on which such a right depends 550 Common law rule did not allow the settling of cross demands in one suit 550 Statutes of bankruptcy and set-off 551 Right of set-off recognized in equity 551 Doctrine based on ground of preventing circuity of action 553 Common law rule as to conclusiveness of consideration 553 How modified in the United States 553 Purchaser's rights as plaintiff must be by action of covenant .... 554 And not in assumpsit 554 But as defendant, sometimes allowed to detain purchase money . . . 554 Various grounds on which this is based 555 What constitutes consideration on sale of real estate 555 Effect of presence or absence of covenants 556 Mere absence of title no defence to payment of purchase money . . . 556 Early cases in New York allowing such defence 558 Frisbee v. Hoffnagle 558 This doctrine overruled 559 Greenleaf v. Cook 559 Later New York cases 561 General doctrine as held in United States 565 But where an eviction, actual or constructive, defence allowed .... 567 Statutory enactments in some States 570 So where purchaser obliged to purchase outstanding title 574 Peculiar doctrine in Pennsylvania 575 Dorsey v. Jackman 575 Not wholly dependent on existence of covenants 575 Steinhauer v. Witman 576 Result of doctrine 578 Purchaser may defend, unless he was to run the risk of the title . . . 579 Application of the rule 580 1. Where defect or incumbrance is unknown 580 What must be its character 580 What will be deemed notice to purchaser 584 Constructive notice not sufficient 584 2. Where there is a known defect or incumbrance, and no covenant . 585 In case of defect of title, absence of covenant presumes that pur- chaser assumed the risk 585 But such presumption not conclusive 586 In case of pecuniary incumbrance, semble that no such presumption 588 Wolbert v. Lucas 588 3. Where there is a covenant against a known defect or incumbrance . 592 Purchaser cannot defend unless covenant broken 592 Nor when his knowledge and same state of facts exist as when conveyance made 592 Wilson v. Cochran 594 XX CONTENTS. Page Result of the doctrine 596 Right to defend where consideration is reservation of a ground rent . . 597 Doctrine in Texas 600 Distinction between law and equity abolished 600 Cooper v. Singleton 600 Result of the authorities • . . 602 CHAPTER XV. THE JURISDICTION OF EQUITY AS TO COVENANTS FOR TITLE. Remedy at law for breach of covenant 603 In equity 603 When damages awarded in 603 Lord Cairns' Act 603 Sir John Rolfs Act 604 Judicature Acts 605 Statute Law Revision Acts 606 Specific performance 607 Of covenants on ground of quia timet 608 Ranelagh v. Hayes 608 But jurisdiction exceptional 610 Of covenant for further assurance 612 And of other covenants for title when incidental to administration or marshalling of assets 615 And this, whether deed is or is not voluntary 615 Williamson v. Codrington 615 American decisions 615 And covenantee entitled to prove as specialty creditor 615 Jeffreys v. Jeffreys 615 Ward v. Audland 615 But otherwise refused under voluntary deeds 620 Nor will contribution nor exoneration be decreed 621 Injunction 624 At suit of covenantor 624 Exceptional cases on ground of quia timet 624 But sole ground of liability on coveuants gives no right to relief 628 Nor will covenantee be deprived of his right to damages . . . 629 At suit of covenantee, — Unless purchaser has present right to damages, equity will not in- terfere 629 1. To restrain collection of purchase money 630 Bumpas v. Platner and Abbott v. Allen 630 Johnson v. Gere 631 Overruled 632 Present result of authorities that mere defect of title no ground of relief 633 2. Nor to rescind the contract 637 CONTENTS. XXI Page But where purchaser entitled to present damages, relief granted . . 640 When insolvency or non-residence of covenantee strengthens hi3 equity 642 But not unless paramount title is being actually prosecuted . . 646 Exceptional cases where all the parties are before the court . . . 648 Reformation 650 On ground of fraud or mistake 650 Chief difficulty is as to sufficiency of proof 651 Introduction of parol evidence 651 Coldcot v. Hill 652 Of deeds by insertion of covenants 656 Distinction between doctrines enforced at law and in equity . 656 Effect of codes of proceedure 658 INDEX 661 INDEX TO CASES CITED. Abbott v. Allen 56, 60, 77, 79, 80, 249, 536, 630, 632, 633, 648 Abby v. Goodrich 330 Abercrorabie v. Baldwin 68 v. Owings 570 Aberdeen v. Blackmar 271 Abernathy v. Boazman 68 Ackerman v. Smiley 368 Adams v. Conover 73, 152, 160, 207, 215, 265 v. Gibney 441, 444, 525 v. Ross 371, 391 Addleman v. Mormon 645 Aiken v. Sanford 41 v. Suttle 227 Akerly v. Vilas 249,571 Aldrich v. Cooper 256, 503, 624 Aldridge v. Burlinson 510 Alexander v. Crosbie 653 v. McAuley 536 v. Schreiber 263, 329, 331, 337, 339, 467 Alfrey v. Blackamore 138 Allen v. Addington 541, 544 v. Atkinson 42 v. Cameron 552 v. Gault 450 v. Hazen 38 v. Holten 497, 498, 499 v. Hopson 536 v. Kersey 91 v. Lee 114 v. Little 323 v. Pegram 536, 567 v. Say ward 372, 384, 435 v. Thornton 645 »'. Winstow 43 v. Wooley 342 v. Yeater 38, 39, 656 Allis v. Nininger 178 Allison v. Allison 144, 148 Almy v. Hunt 93 Amos v. Cosby 195, 199, 275 Anderson v. Arrowsmith 283 v. Burnett 543 v. Hill 543 Anderson v Knox v. Lincoln v. Martindale v. Oppenheimer v. Wasliabaugh Andrew v. Pearce Andrews' case Andrews v. Appel v. Beecker v. Eddon v. McCay v. Paradise v. Wolcott v. Word Page 276 636 528, 529 126 289 341, 342, 525 167, 433 271, 278, 318 336 130 461 173 326, 327 38. 41 Anonymous 9, 93, 95, 122, 131, 437, 537, 551 Anson v. Lee 64 Appleton v. Binks 48 Archer's case 16 Ardesco Oil Co. v. N. A. Mining Co. 90 Armstead v. Hundley 541 Armstrong v. Darby 135, 467, 468, 615 v. Wing 522 Arnold v. Curl 645 v. McNeill 330 Asay v. Lieber 582 Ash v. Holder 572 Astor v. Miller 321 Athens v. Nale 149 Atherton v. Atherton 520 Atkins v. Bahrett 42 v. Van Buren School Township 636 Atlantic Dock Co. v. Leavitt 438 Attorney-General v. Morgan 43 v. Purmort 488 Attwood v. Small 539, 547 Atwood v. Vincent 650 Aufricht v. Northrup 115 Austin v. Ferguson 486 Auwerter v. Mathiot 579 Aven v. Buckom 43, 50 Averall v. Wade 417, 502, 622, 623 Averill v. Wilson 190, 430 Avery v. Aikins 366 v. Dougherty 166, 168 Axtel v. Chase 176, 177, 636 Ayling v. Kramer 94 XXIV INDEX TO CASES CITED. B. Babcock v. Case r. Wilson Baber v. Harris Bach v. Miller Backus v. McCoy 55, Bacon v. Lincoln Badely v. Vigurs Bagley v. Fletcher Bailey v. Hoppin v. Miltenberger «;. Scott Baily v. Allegheny Bank r. Moore Bain v. Fothergill Baird v. Goodrich Baker v. Bulstrode v. Corbett v. Dewey v. Hunt Baldwin v. Munn Ballard v. Ballard Vale Co. v. Child Bally v. Wells Bandy v. Cartwright Banister v. Henderson Bank of Utica v. Mersereau Bankes v. Small Banks v. Amnion v. Walker v. White v. Whitehead Barber v. Backus Barclay v. Kaine Bardeen v. Markstrum Bardill v. Trustees Barker v. Circle Barkhamsted v. Case Barley v. Walford Barlow v. Delaney v. McKinley v. St. Nicholas Bank Barnard v. Duncan Barnett v. Montgomery Barney v. Keith Barns v. Learned Barrett v. Ctark Barrow v. Bispham Bartlett v. Farrington v. Greenleaf v. Tarbell Barton v. Fitzgerald v. Morris Bartram v. Whicbcote Basford v. Peirson Bash ore v. Whisler Bass v. Ware Basset r. Norsworthy Basten v. Butter Batchelder v. Sturgis 94, 05, 272, Bates v. Delavan v. Foster Page Page Bates v. Norcross 355, 356 543, 544 v. West 507 42 Batterman v. Pierce 552, 559 250, 438 Bauskett v. Jones 495 287 Baxter v. Audrey 42 , 56, 223, 312 v. Bradbury 55, 252, 253, 260, 267, 73. 77, 380, 398, 399, 402 321 v. Ryerss 323, 438, 442 39 Bayard v. McLane 65 368 Bayler v. Commonwealth 64 101, 171, 210 Bayley v. McCoy 364 275 Beach v. Miller 98, 103 355 v. Packard 245 507 v. Steele 41 221 v. Waddell 638, 639 639 Beal v. Beal 377, 567 130 Beale v. Seiveley 536, 633, 637 275 Beall v. Taylor 516 244 Bean v. Herrick 543, 544 79, 515 v. Mayo 92, 271 234, 271, 275 v. Welsh 367, 386 104 Bearce v. Jackson 55 498 Beardsley v. Knight 343 207, 213, 293 Beauchamp v. Damory 268 440 Beaupland r. McKeen 267 580, 582, 583 354 Beck v. Barlow 152 264 380, 403 v. Simmons 637 135, 421,615 Beckmann v. Henn 79 584 Beddoe v. Wadsworth 56, 304, 343, 344, 637 345, 347, 532 439 Beebe v. Swartwout 166, 1 182 Beidelman v. Foulk 586 559 Belcher v. Sikes 486 136 Belden v. Seymour 50, 245, 495 571 Belding v. Pitkin 67 508 Bell v. Adams 357, 368 377 v. Henderson 543 636 v. Huggins 147 541 v. Twilight 366, 373 358 Bellamy v. Barnes 123 98, 112 Bellas v. McCarty 522 94 Bellel v. Bellel 220 43,46 Bellinger v. Burial Ground f society 215 182 287, 612 Belmont v. Coman 115 438 Bemis v. Smith 193 246 Bender v. Fromberger 77, 152, 220, 222, 646 224, 228, 240, 263 ,457 , 458, 480, 489 42 Benjamin l\ Hobbs 263, 566 166 Benner v Evans 232 27 v. Phillips 520 567 Bennett's case 130 484 Bennett v. Bartlett 507 368 v. Jenkins 227, 281, 287 445 v. Waller 366, 367, 383 73, 514 v. Womack 40 579 Bensley v. Burdon 364 416, 420, 421 172 Benson v. Benson 517 413 Benton v. Reeds 283 551, 561 Benton Co. »'. Rutherford 510 113 233, 269, Bergin v. McFarland 522 273 , 274, 275 Bermingham v. Burke 523, 524 637 Bertram v. Curtis 98 435, 498 Best v. Meddlehurst 387 INDEX TO CASES CITED. XXV Bethell v. Bethell Betts v. Union Bank Bever v. North Beverly v. Lawson Bickford v. Page Bigham v. Bigham Bigelow v. Finch v. Hubbard v. Jones Bigler v. Morgan Bingham v. Weiderwax Page 39, 264, 314, 315, 464, 567 244 113, 152, 153 267 84, 92, 109, 304 113, 247 190 92 226 22 245, 246, 259, 400, 401 79 77, 339, 527 503 333 226 629 221 408 Bircher v. Watkins Bird v. Smith Birney v. Haim v. Hann Bissell v. Erwin v. Kellogg Bitner v. Brough Bivins v. Vinzant Black v. Barton 492 v. Coan 271, 636 v. Gilmore 435, 438 Blackie v. Hudson 93 Blackmore v. Shelby 400 Blackshire v. Iowa Homestead Co. 80 Blackwell v. Nash 330 Blain v. Taylor 94 Blair v. Claxton 574 v. Rankin 439 v. Smith 431 Blake v. Burnham 263, 283 v. Everett 98, 109 v. Tucker 368, 380 Blakeslee v. Mobile Life Ins. Co. 367, 461 Blancliard v. Blanchard 93, 182, 267 v. Brooks 366, 367, 371, 496, 498, 499 v. Ellis 255, 259, 263, 398,400, 401, 403 .'. Hoxie 77, 78, 217, 265, 267 Blanks v. Walker 574 Blatchford v. Mayor of Plymouth 125 Bledsoe v. Rogers 64 Blicke v. Dymoke 137, 138 Blight p. Rochester 190 Blin o. Pierce 336 Blondeau v. Sheridan 182, 527, 530 Blood v. Wilkins 245 Bloom v. Wolfe 247 Bloss v. Kittridge 441 Blossom v. Knox 229 v. Van Court 93 Blydenburgh v. Cotheal 148, 176, 304 Board of Commissioners v. Younger 542 Bodley v. M'Chord 38 Boggess v. Robinson 37 Bosm v. Shoab 366, 371 Bolion v. Bohon 366 Bointon and Chester's case 427 Bole v. Horton 9 Bolles v. Beach 428 Page Bolton v. Johns 245 Booker v. Bell 144, 152, 160, 102, 228 Bool v. Mix 75 Boon v. McHenry 249, 250, 316 Boone v. Armstrong 425 v. Eyre 564 Booth v. Seffold 574 v. Starr 89, 174, 305, 322, 344 Boothby v. Hathaway 55 Bonaparte v. C. & A. R. R. 212 Bond v. Bond 255 Bordeaux v. Cave 570 Bordewell v. Colie 197, 217 Boreel v. Lavvton 439 Boston v. Worthington 152 Boston Co. v. Munson 17 1 Bostwick v. Williams 149, 150 Botsford v. Wilson 514 Bottorf v. Smith 263, 314 Boulney v. Curteys 17, 132 Bowen v. Beck 438 v. Hall 606 v. Thrall 39, 651 Bowley v. Holway 572 Bowman v. Long 515 v. Taylor 364, 395 v. Wathen 65 Bowne v. Potter 429 Bowyer v. Rivitt 516 Boyce v. Edwards 153 Boyd v. Armstrong 520 v. Bartlett 110 v. Bopst 575 v. Whitfield 152, 155 Brackenridge v. Dawson 43 Bradburne v. Botfield 529 Bradford v. Long 612 v. Potts 594 Bradley v. Chase 541 v. George 503, 624 Bradshaw's case 17, 76, 77, 303 Brady v. Spurck 78, 270, 278, 303 Bragg v. Wiseman 444 Braman v. Bingham 270 Brandt v. Foster 60, 275, 281, 536, 552 574, 575 Branger v. Manciet 166 Bratton v. Gery 339 Breck v. Young 58, 60 Breckenridge v. Moore 64, 68 Bree v. Holbech 536, 538, 576 Brewer v. Parker 567 Brewster v. Kitchell 293, 294 Brice v. Brice 544 Brick v. Coster 166, 582 Bricker v. Bricker 143, 146, 436, 482, 499 Briggs ». Morse 270 Brigham v. Smith 372 Bright v. Boyd 231 Brimmer v. City of Boston 101, 171 Brinley v. Whiting 65 Briscoe v. King 17 XXVI INDEX TO CASES CITED. Bristow and Bristowe's case Britton v. Turner Brizzolara v. Mosher Broadwell v. Phillips Brocas' ease 170, Brock o. Southwick Brodie r. Watkins Bronson v. Coffin 48, 94, Brouks v. Fowle v. Hamilton v. Moody 110, 270, 271, 272, Broughton v. Conway Brown v. Brodhead v. Brown v. Cannon v. Dickerson 190, 192, v. Gammon v. Haywood v. Jackson v. McCormick v. Manning v. Manter v. Metz v. O'Dwyer v. Phillips v. Staples 116, 331, v. Starke v. Taylor 153, 154 v. Tomlinson Browning v. Crisman v. Wright 81, 37, 54, 218, 451, 474, 476, 477, 478, 485, 487, 488, 489, 491 ; Bruce v. Lake Brundred v. Walker Bryan v. Johnson v. Smallwood v. Swain Buchanan v. Alwell Buck v. Babcock v. Binninger Buckels v. Mouzon Buckhurst's case Buckingham v. Hanna Buckley v. Nightengale v. Williams Buckner <•. Street Buell v. Tate Bull v. Willard v. Wiott Bullard v. Briggs Bumpus v. Platner Bundy v. Ridenour Bunny ?•. Hopkinson Burbank v. Gould r. Pillsbury 94 Burcliard v. Hubbard Burlians v. Van Zandt Burk v. Burk v. Homents v. Hill Page 138 552 42 368 303, 309 602 462 274, 339 628 541, 543 275, 646 479 275 472, 492 41 197, 203, 228, 597 41 434 371 381, 410 542, 567 397 326, 332 454 366, 427 332, 382, 426, 427 41 156, 157 460 628 434, 435, 479, 480, 494, 653 366 367 602 265 462 638, 646 65 526 161 80, 535 375, 398 515 218 113, 493 566, 645 535 381 245 630, 648 271 225 245 ,115, 437 375, 376 200 463 255, 275 102 Burk v. Serrill Burke v. Beveridge v. Nichols Burkett v. Munford Burnett v. Lynch Burr v. Todd Burrell v. Jones Burroughs v. McNeill Burrowes v. De Blaquiere Burrows v. Stryker Burrus v. Wilkinson Burston v. Jackson Burtners v. Keran Burton v. Reeds v. Schermerhorn Burwell v. Jackson Busby v. Littlefield v. Tread well Bush v. Bradley v. Cooper v. Keller Bustard's case 268 Butclier v. Peterson 115, v. Rogers Butler v. Miller v. Seward v. Slam v. Swinerton Bntman v. Hussey Butsford v. Wilson Butt v. Riffe Butterworth v. Volkening Byrnes v. Rich Caballero v. Henty Cabot v. Christie Cadiz v. Majors Cad man v. Fagan Cadwalader v. Try on Cain v. Henderson Calder v. Chapman Caldwell v. Kirkpatrick Callis v. Cogbill Caltliorp v. Heyton Calvert v. Bradley v. Sebright Cameron v. Carter Campbell v. Evarts v. Medbury v. Whittingham Candler v. Lunsford Cane v. Allen Cannon v. White Carbrey v. Willis Carcswell v. Vaughan Carleton r. Tyler Carley v. Fox Carnahan v. Hall Carpenter v, Bailey Page 221 252, 408 74, 216 637, 641 4v9 281 48 610 507 567 195, 507 3(56 368 259, 400 574 42, 536, 543 112 636, 639, 646 183 378, 466, 507 627 433, 444, 446 227, 255, 267, 269, 638 366, 386 536 33, 397 520 127, 128 536 510 98, 217, 570 166 247 97 542 366 93 35 575 396 409,410 39, 149, 182 176, 179 173 529 33, 121, 500 41,42 65 571 543, 636 378 275 536 105 14 508 510 580 41 INDEX TO CASES CITED. XXV11 Page Page Carpenter v. Parker 122 Cheever v. Wilson 511 v. Schermerhorn 377 Cheiny v. Langley 444 v. Thompson 382 Cheney v. Bank of Chicago 566 Carr v. Dooley 93 Chew v. Barnet 397, 410 v. Roach 535, 536 Chewett r. Moran 522 v. Roberts 89 Child v. Stenning 274 Carrington v. Goddin 65 Childs v. McChesney 378 Carson v. Cemetery Co. 354, 355 Chipman v. City of Hartforc 1 0_6 v. Godley 439, 440 Christian v. Cabell 42 v. Kelley 602 Christine v. Whitehill 435, 451, 41)4 Carter v. Alexander 41 Christy v. Ogle 275, 2'.I0 v. Bustamente 365 v. Reynolds 589, 596 v. Carter 570 Chudleigh's case 16, 299 v. Chapman 512 Church v. Brown 21, 31, 437 v. Denman 87, 90, 93 110 304, 318 Churchill v. Hunt 90 Carthrae o. Browne 529 City of St. Louis v. Bissell 152, 275 Cartright v. Briggs 567 Claggett v. Hall 244 Carver v. Jackson 364, 378 Clanrickard ;». Sidney 475, 495 v. Louthain 114, 464 Clanton v. Burges 037 Carvill v. Jacks 224 228, 231 Clapp v. Coble 190 Cary v. Daniels 104 v. Tirrell 245 Case v. Boughton 553 Clark c. Baird 543 v. Erwin 92 v. Baker 363, 364, 396 Casey v. Lucas 637 v. C leghorn 643 Cashion v. Faina 449 v. Conroe 73, 182 Caswell v. Wendell 223, 226 v. Croft 41 Cathcart v. Bowman 98 v. Johnson 330 Catlin v. Hurlburt 59, C v. Lyons 39,40 Caulkins v. Harris 281 ?•. Martin 412 Cavan v. Pulteney 124 v. Munford 199 Cave v. Brookesby 167 v. Parr 224, 228, 281 Cavis v. McClary 324 v. Perry 94. 271 Cawdor v. Lewis 231 v. Redman 38,41 Cliace v. Hinman 271 v. Scudder 504 Chairs v. Hobson 64 v. Snelling 560 Chamberlain v. McLurg 592 v. Swift 272, 304, 317, 337, 339, 527 v. Meeder 378, 508 v. Whitehead 49 v. Preble 152, 157, 159 v. Winchell 522 Chambers v. Cox 570 Clarke r. Courtney 22 v. Pleak 189 v. Hardgrove 634 v. Smith 314, 315, 468, 527 v. McAnulty 66, 71 77, 148, 176, v. Spencer 510 209, 245 v. Wright 520, 525 v. Samson 434 Champion v. Brown 610 Clarkson v. Skidmore 238, 620 Champlain v. Dotson 640 Claunch v. Allen 150, 461 Champlin v. Laytin 541 Claxton v. Gilbers 325 Champness v. Johnson 147 Claycomb v. Munger 163, 193 Chandelor v. Lopus 549, 553 Clee v. Seaman 431 Chandler v. Brown 182 Clements v. Collins 162 v. Marsh 574 Clementson v. Streeter 571 Chapel v. Bull 55, 255, 275, 278, 279 Click ?'. Green 227, 245, 508 Chaplain v. Southgate 170 Clifford v. Hoare 44 Chaplin v. Briscoe 569 Cloake v. Hooper 179, 439 Chapman v. Derby 551 Close v. Graham 112,407 v. Holmes 84, 145, 152, 304 Clowes v. Dickenson 256 v. Kimball 90, 304 Clute v. Robinson 41 v. Lee 566 Coakley v. Chamberlain 511, 521 Chase v. Weston 323, 329, 569 Coal Creek Mining Co. v. Ross v. Woodbury 503, 624 Coates v Collins 485 Chastain v. Staley 43 Coble v. Wellborn 174 Chatterton v. Fox 237 Coburn v. Litchfield 93, 270, 275 Chauvin v. Wagner 353, 358, 373, 378, Cochran v. Guild 93 383, 386 v. Pascault 129 XXV111 INDE X TO C Page Cocke v. Thorn 369 Oockell v. Taylor 64 Coekrell v. Proctor 79, 249 Ooddington v. Dunham 166 Coe v. Harahan 32 v. Persons unknown 371 v. Talcott 49 Coffman v. Scoville 566 Coger v. McGee 246, 654 Cohen v. Woollard 638 Coit v. McReynolds 56, 60, 7 Colby v. Gadsden 549 v. Osgood 133, 312 Colcord v. Swan 377, 510 Coldcot v. Hide 652, 653 v. Hill 493, 494, 652 Cole v. Albers 244 v. Hawes 488 v. Justice 566 v. Kimball 271 317, 337 v. Lee 151, 193, 198, 20'!. 495 v. Raymond 356, H79 Coleman r. Coleman 200 v. Hart 535 v. Lyman 315 v. Rowe 636 v. Sherwin 509 Coles v. Kinder 137 Collier v. Gamble 56, 249, 264, 337, 467 Collingwood v. Irwin 113, 153, 158, 161, 247 Collins v. Baker 155 v. Blantern 67, 553 v. Crouch 526 v. Delashmutt 41 v. Evans 541 v. Stuteley 604 v. Torry 429 Col v in v. Schell 289, 535, 587 Col well v. Hamilton 42, 582 Combs v. Tarlton 261, 284 Comer v. Chamberlain 159 Comings v. Little 271, 275, 508, 529 Commonwealth v. Andre 51, 378 v. McClanachan 536 v. Pejepscut 378 Comstock v. Comstock 59, 72 v. Smith 366, 367, 372, 374, 380, 381 Concord Bank v. Gregg 542, 549 Condrey v. West 536, 574 Conklin r. Railroad Company 249 Conner v. Beam 271 Connor v. Eddy 427 v. Me Murray 375 Conrad v. Trustees 229 Conwell v. Clifford 567 Cook v. Coombs 114 r. Field 64 v. Jackson 6"2 v. Mix 555, 559 Cooke v. Eownds 53, 54, 500 Cooley r. Rankin 638 Coolidge v. Smith 514 Page Cooper v. Bigly 503, 624 v. Bloodgood 101, 171, 632, 637, 638 v. Granberry 330 v. Singleton 600, 601 v. Watson 152 Copeland v. Copeland 116 Corbin v. Healy 391, 497 Corbitt v. Dawkins 51, 536 Cordwent v. Hunt 330 Corn Exchange Bank v. Babcock 511 Cornell v. Jackson 65, 61, 267, 335, 398, 490 Oortelyou v. Van Brundt 74 Corus v. 17, 167 Coster v. Monroe Manufacturing Co. 50, 641 Cotton v. Ward 254 Cottrell v. Cottrell 47 Cowan v. Shields 336 v. Silliman 251 Cowden's Estate 503 Cowdrey v. Coit 196 Cow ton v. Wickersham 509 Cox v. Barnard 617, 618 v. Henry 228, 246, 278, 282, 289, 535 v. King 517 v. Strode 152, 162, 222, 223, 228, 287 Crabtree v. Levings 44 Craddock v. Stewart 49 Craig v. Donovan 264, 464 v. Heis 93 v. Hopkins 536 v. Lewis 104, 431 Cramer v. Benton 366 Crance v. Collerbaugh 193 (■rawford v. Murphy 582 Crayford v. Crayford 491 Cresson v. Miller 35, 65 Cripps v. Kead 32, 536 Crisfield v. Storr 218, 223, 229, 287, 289, 339, 356, 522, 528, 530 Crittenden v. Craig 542 Crocker v. Smith 522 Crooker v. Jewell 329, 336 Cross v. Martin 368 v. Noble 95, 580, 583 v. Robinson 325, 425 Crosse v. Young 167 Crossfield i>. Morrison 486 Crouch v. Fowle 147, 439 Crowell v. Packard 566 Crowninshield v. Robinson 551 Crum v. Loud 460, 487, 488, 494, 655 Crutcher v. Stump 148 Cuddee v. Rutter 604, 608 Culler v. Motzer 581 Cullum v. Bank at Mobile 566, 635, 646 Cully v. Doe 69 Cumber v. Wane 331 Gumming v. Gumming 503, 624 Cummings r. Harrison 152, 155 v. Holt 206 Cummins v. Kennedy 182, 223, 244 INDEX TO CASES CITED. XXIX Page Page Cunningham v. Fithian 549 Demaret v. Bennett 601 ,602 639, 640 v. Knight 329 330, 339 Den v. Brewer 364 v. Scoullar 507 i\ Crawford 358 r. Sharp 42 ?'. Demarest 377 Curd v. Davis 646 v. Forsythe 391 v. Dobbs 510 v. Geiger 68 Curry v. Lyles 245 v. Robinson 358 Curtis I?. Curtis 385 v. Young 391 v. Deering 168, 169 170, 182 Denn v. Cornell 378 p. Spitty 321 Dennett v. Atherton 123 173, 443 Cushman v. Blanchard 55, ( Dennis v. Heath 162 177 182, 568 Cuthbertson v. Irving 343, 349 Denny v. Wickliffe 650 Cutler v. Bower 565 Denston v. Morris 637 Cutter v. Powell 553 Dentler v. Brown 582 v. Waddingham 431 De Peyster v. Murphy Derby v. Jones Desha v. Robinson 94 371 552, 566 D Desvergers v. Willis 102 Detroit R. R. Co. v. Griggs 641 Dale u. Rosevelt 541 Devin v. Hendershott 326 v. Shively 265 288, 303 Devore v. Sunderland 56, 313 Dalton v. Bowker 152, 155, 229 Devour v. Johnson 162 Daly v. Willis 469 Dewitt v. Eldred 10 Danforth v. Streeter 65 De Wolf v. Haydn 367, 386 Daniel v. Mitchell 541 Dexter v. Manley 126, 219, 239. 245, Daniels v. Davison 95,97 272 438, 440 Dart v. Dart 366 v. Nelson 65 Davidson v. Cox 304, 326 Dickens v. Sheppard 207 Davie v. Sacheverell 168 Dickerson v. Talbot 367, 380, 403 Davies v. Churchman 517 Dickinson v. Hoomes 37, 297, 321, 336, Davis v. Atkins 495 343, 345 348 484 516, 619 v. Bean 572 v. Voorhees 204, 585 v. Darrow 429 Dickson v. Desire 228, 276, 313, 346, 468 v. Heard 541, 542 Dietz v. Mock 567 i7. Henderson 42 Diggs v. Kirby 537 v. Keller 368, 380 Dimmick v. Lockwood 277, 278, 279 v. Logan 162, 194, 650 Dix v. School District 570 v. Lyman 270, 275, 303, 335, 476 Doane v. Willcutt 372, 373, 377 v. McVickers 574 Dobbins 17. Brown 101, 149, 171,204, v. Sims 543 208, 212, 213, 214, 215 v. Smith 166, 228, 230, 517 Dobell J7. Stevens 543 v. Tar water 30, 461 Dodd c. Seymour 41,47 r. Tollemache 25, 134, 135, 136, 421, v. Williams 412 422, 613, 614,615 Dodds v. Toner 574 v. Wilbourne 153, 158 Dodge i7. Tileston 552 Davy v. Pepys 516, 517 Doe v. Barton 189 Dawson v. Dyer 27 v. Cassidy 330 Day v. Browne 50 v. Dowdall 17, 367, 414 v. Chism 180 17. Errington 364, 395 v. Nix 552 v. Evans 64 Dayton v. Dusenbury 632 v. Hiscocks 651 Deakins v. Hollis 435 v. Hull 69 Deal v. Dodge 555, 566 17. Jones 361 Dean r. Hoesler 237 v. Lynes 53 v. Shelly 444, 445, 510 v. Martyn 64, 69 Dearborn v. Cross 330 v. Myers 383 Deartl • Williamson 41 v. Oliver 361, 362, 364 Dechai ins v. Horwood 529 v. Potts 363 Decker v. Caskey 364 v. Prestwidge 416 Deering v. Farrington 443 i: Scarborough 362 De Forest v. Leete 109 v. Stanion 42 Delavergne v Norris 270, 271, 275 ?•. Webster 383 Delmer v. McCabe 451, 496, 500 v. Whitehead 391 XXX INDEX TO CASES CITED. Page Dominick v. Michael 375, 377 Donahoe v. Emery 50, 255, 508 Donelson v. Weakley 542 Dounell v. Thompson 93, 113, 193, 194, 217, 251 Dorchester v. Coventry 233 Doremus v. Bond 574 Dorr v. Fisher 552 v. Steichen 656 Dorsey v. Dashiell 90 v. Gassaway 378 v. Jackman 575, 578, 581 Doswell v. Buchanan 366 Dougherty v. Duvall 321 Doughty v. Bowman 526 Douglass v. Scott 403, 404 Doupe !'. Genin 168, 439 Dow v. Lewis 44, 51, 436 Dowdney v. Mayor of New York 94 Downer v. Smith 73, 281 Doyle v. Coburn 380 v. Knapp 536 v. Petroleum Co. 413 Drake v. Baker 221 Drew v. Towle 176, 283, 288, 569 Driggs v. Dwight 237 Drinker v. Byers 587 Drinkwater v. Moreman 506 Drury v. Improvement Co. 115, 330, 429 v. Shumway 149, 225 Druson v. Love 275 Duchess of Kingston's case 63, 64, 189, 191, 251, 351, 394, 407, 431, Dudley v. Bradshaw 408 v. Cadwell 367, 380, 403 v. Folliott 167, 172 Duffy. Wilson 439 Duffield r. Scott 152, 163, 286 Dugan v. Fcllett 369 Duke of Somerset v. Cookson 607 Dummer v. Birch 109 Duncan v. Blair 114 v. Lane 568 v. McCullough 592 Dunham v. Dey 408 Dunklee v. AVilton Kailroad Co. 90, 106 Dunn v. Dunn 488 v. Snell 336 v. White 112, 115, 566 Dunnica v. Sharp 84 Dunning v. Leavitt 572 Dunseth v. Bank of U. S. 233 Dupuv v. Ducondu 226 v. Roebuck 178, 193 Durand v. Wilheim 339 Durell v. Pritchard 604 Durrett v. Piper 93 Duval v. Bibb 245 v. Craig 50, 77, 109, 182, 193, 481 Duvall v. Parker 636 Duvoll v. Wilson 621 Dwight v. Cutler 38, 41 Dwinel v. Veazie 43 Dyer v. Britton v. Wightman Dyke v. Sweeting Page 193, 195 101, 171 517 E. Eardley v. Owen 517 Earl of Bath v. Earl of Bradford 517, 524, 616 Earle v. De Witt 536, 554 v. Earle 536 v. Middleton 227 Early v. Garrett 544 Eastman v. Wright 336 Eaton v. Lyman 153, 158, 270, 271, 316, 571 v. Tallmadge 275, 570 Eby v. Eby 42 Eccleston v. Clipsam 528 Eddington v. Nix 275, 638 Eddleman v. Carpenter 374 Eddy v. Chace 99 v. Traver 502 Edmund's Appeal 98 Edwards v. Appelbee 613 v. Bodine 632, 637 v. Brown 561 v. Davenport 377 v. McLeay 537, 539, 548 v. Morris 637 v. Perkins 439 v. Roys 68 v. Varick 366 Ela v. Card 265, 281 Elder v. True 255, 256, 279 Eldred v. Leahy 438 Elliot v. Frakes 65 v. Merryman 46 Elliott v. Boren 330 v. Heath 552 v. Thompson 227, 637 v. Weed 495 Ellis v. Niirmo 620 v. Welch 171, 192, 373 Ellison v. Ellison 621 Ely v. Hergesell 326, 330 Elysville Man. Co. v. Okisko Co. 244 Emerson v. Proprietors 149 Emery v. Wase 132 Emmet v. Quinn 474 Engel v. Fitch 221 English v. Benedict 542 v. Thomasson 636, 638 Ennis v. Leach 43 Ernst v. Parsons 312 Eshelman's Lessee v. Hoke 354 Espy v. Anderson 35 Estabrook v. Hapgood 316 v. Smith 92, 193, 246, 482, 492 Estep v. Estep 636 Evans v. Dendv ^"0 v. McLucas 147, 569 INDEX TO CASES CITED. XXXI Evans v. Sanders v. Vaughan Eveleth v. Crouch Everson v. Kirtland Everts v. Brown Ewins v. Calhoun Ex parte Crowder Elmes Mendel Step liens Tindall Fagan v. Cadraan Fahie v. Pressy Failing v. Osborne Fain i\ Ayers Fairbanks v. Williamson 150, 384 Fairbault v. Sater Faircloth v. Isler v. Jordan Falconer v. Clark Falls v. Dickey Falmouth v. Tibbatts Fanning v. Stimson Faries v. Smith Farley v. Briant 518. Fanners' Bank v. Glenn Farnham v. Hotchkiss Farnsworth v. Garrard Farnurn v. Peterson Farrer v. Nightengal Farrington u. Barr Farrow v. Mays Faucett v. Currier Faussett v Carpenter Feather v. Strohoecker Feeinster v. May 41, Fehrle v. Turner Fellbush v. Stevens Fenton v. Lord Fergus v. Gore Ferguson v. Dent Feriss v. llarshea Ferrar v. Ferrar Ferrell v. Alder Field v. Snell 306, Fielder v. Studley Fields v. Hunter v. Squires 130,321,347,374, v. Willingham Finance Co. v. Liberator Society Finley v. Simpson v. Steele Finn v. Sleight Fisher v. Hallock v. Parry v. Salmon v. Worrall Page 508 121, 219 429 41 150 541 45 250 506 551 525 93 512 569 136 340, 367, 395, 415 541 38 408 536 644 510 437 147, 460 523, 524 249, 252 564, 565 551 367 268 244 570 247 421 446 568, 574 645 510 514 517, 616 451, 495 162, 176 652 104 330, 333 493, 653 161, 162 459, 508, 014 245, 360 146,419 437 457, 463 430 364, 367 459, 464 573 90 Fitch v. Baldwin 60,75 v. Polke v. Sej'mour v. Willard Fite v. Doe Fitzer v. Fitzer Fitzhugh d. Croghan v. Tyler Fitzpatrick v. Hearne Fleming v. Gilbert v. Harrison v. Holt Fletcher v. Button v. Coleman Flight v. Cook Flinn v. Barber Flint v. Steadman Floom v. Beard Flureau v. Thornhill Flynn v. Williams Foley v. Addenbrooke v. Cowgill Follett v. Grant Folliard v. Wallace Fobs v. Huntley Foord v. Wilson Foote v. Burnet 56,60,110, 271, Ford r. Wads worth Forster v. Fuller v. Gillam Foss v. Stickney v. Strachn Foster v. Dwinel v. Kennedy v. Mapes v. Pierson v. Thompson v. Wilcox v. Woods v. Woodward v. Young Fowle v. Welsh Fowler v. Poling 56, 149, v. Shearer Fox v. Mackreth v. Mensch v. Widgery Franchot v. Leach Franciscus v. Reigart Franklin v. Carter v. Dorland Frazer v. Supervisors v. Skey v. Tunis Freeman v. Foster v. Lorn as v. Thayer French v. Spencer Friedly v. Scheetz Frink v. Bellis v. Darst Page , 262, 263, 431 645 104, 425 42 65 114 58, 60, 69, 74 364 101, 172 330 38 43 42 377, 510 610 41 281 77 221, 235 357 529 543 55 166 171 474, 477 142, 145, 228, , 277, 313, 320 330 48 35, 589 255, 263 380, 383 431 542 170 109, 174, 218 227, 284 510 115 507, 527 50 170 176, 196, 203, 345, 641 377, 510, 555 542, 544 579 366, 372, 430 561 598, 599 189 374 72, 223, 263 218, 439 517 115 550 366 364, 367, 396 51, 579 315 366, 367 XXX11 INDEX TO CASES CITED. Page Frisbee v. Hoffnngle 558, 550, 561, 562, 564, 566 Frisby v. Ballance 366 Fritz v. Evans 520 v. Hobson 606 v. MeGill 535 v. Pusey 90, 182 Frontin v. Small 443 Frost v. Angier 102 v. Earnest 171, 218 v. Raymond 434, 438, 442, 530 Fuhrraan v. Loudon 584, 586, 593 Fuller v. Hubbard 47 v. Jillette 93, 317 v. Wright 92 Fulweiler v. Baugher 290 Funk v. Cresswell 175, 203, 206, 217, 460 v. Newcomer 367 v. Voneida 109, 111, 113, 275, 458 Furman v. Elmore 147, 227, 569 Furnas v. Durgin 89, 193 Furness v. Williams 431, 564 Furniss v. Ferguson 65 G. Gadsden v. Bank of Georgetown 289 Gainsford v. Griffith 473, 474, 487 Gale v. Conn 636 v. Edwards 94, 116, 492 v. Reed 479 Gallup v. Albany Railway 237, 439 Galton v. Hancock 517 Gamble v. Collier 276 v. McClure 433 Gannard v. Eslava 517 (iano v. Vanderveer 440, 442 Gans v. Renshaw 539, 582 Gardner v. Greene 431 v. Keteltas 166, 167, 182 v. Niles 89 Garfield v. Williams 56, 251, 304 Garlock v. Closs 344 Garrard v. Lantz 582, 583 Garrett v. Crosson 583 v. Stuart 245 Garrison v. Moore 598, 599 v. Sanford 304 Gartman v. Jones 637 Gault v. Van Zile 40 Gaunt v. Wainman 430 Gay v. Hancock 633 Gavle v. Price 429 Gazley v. Price 40, 41, 42 Gazzolo v. Chambers 167 Gee v. Moore 150, 372 v. Pharr 435, 461 George v. Putney 179, 189, 190 v Wood 503, 624 Gerald v. Elley 98,112 iv. Peade 475, 479 Geyer v. Girard 368, 427 Ghegan v. Young Gibbs v. Thayer Gibson v. Bell v. Chouteau v. D'Este v . Eller v. Goldsmith v. Mussey v. Richart Gifford v. Ferguson Page 437 150, 367 551 364, 366, 386, 396, 468 539, 547 114 610, 613 51 535, 567, 636 567 Gilbert r. Turnpike Company 155 v. Wiman 271 Gilchrist v. Buie 38, 41 Giles v. Dugro 98, 267, 272 v. O'Toole 237 v. Roe 52, 517, 616 Gilkeson v. Snyder 581 Gill v. Grand Tower Mining Co. 372 Gillam v. Briggs 569 Gillespie v. Moon 651 Gillett v. Rippon 286 Gilman v. Haven 427 Ginn v. Hancock 98, 103 Glasscock v. Minor 549 Gleason v. Smith 166 Glenn v. Allison 50 v. Thistle 573 v. Whipple 632, 638, 641 Glinister v. Aiulley 76 Gochenour v. Mowry 367, 380 Goddin v. Vaughn 37, 42, 43 Godley v. Taylor 50 Godson v. Smith 251 Gonzales v. Hukil 377 Good v. End 112 v. Good 599 v. Mylin 591 Goodel v. Bennett 332, 372, 375 Goodenough v. Fellows 368, 512 Goodill v. Brigham 23 Goodricht v. Forester 53 v. Meade 387 Goodson v. Beaeham 397 Goodtitle v. Alker 74 v. Bailey 364 v. Morgan 363 Goodwin v. Morse 552 v. Robinson 553, 566 Gore i\ Brazier 142, 144, 175, 225, 232, 257, 520 v. Carl 514 Goucher v. Helmbold 580 Gough v. Bell 367 v. St. John 542 Gould v. Boston Duck Co. 105 Gouldsvvorth v. Knights 342 Gouverneur v. Elmendorf 536, 648 Graff v. Smith 520 Gragg v. Richardson 154, 289 v. Wagner 112 Graham v. Alsopp 189 v. Meek 377 v. Tankersley 152, 162 INDEX TO CASES CITED. XXX 111 Granger v. Collins Grannis v. Clark Grant v. Bennett v. Tallman Grantland v. Wight Gratz v. Ewalt Graves >■. Leathers v. Mattingly Gray v. Briscoe Page 440, 441 ,. 442 147, 438, 439 37 27s 43 457, 459, 460, 462, 466 68 50 17, 54, GO, 221, 264, 268, 269 v. Cox v. Handkinson Great Falls Co. v. Worster Green v. Biddle v. Campbell v. Collins v. Darlin v. Irving v. James v. McDonald v. Watson Greenby v. Wilcocks Greene v. Creighton Greenlaw v. Williams Greenleaf v. Cook v. Queen Greeno v. Munson Greenvault v. Davis Greenwood v. Ligon Greer v. Tenant Gregory v. Mayo v. Peoples v. Scott Grenclife v. W 561 570 403 231 644 207, 216 551 39, 175, 182, 185, 180, 187 342 036, 638 166 60, 166, 174, 302, 304, 314 29, 86, 87, 273 155 559, 560, 561 638 189 148, 174, 176, 177, 179, 188, 245, 331 41 233 53 376, 378 574 17, 169 Grice v. Scarborough 87,94,95,111,112, 113, 115 Gridley v. Tucker Griffin v. Fairbrother v. Orman v. Revnolds v. Sheffield Griffith v. Harrison v. Kempshall Grimes v. Redmon Griner v. Butler Grist v. Hodges Griswold v. Allen v. Bigelow Grout v. Townsend Guerard v. Rivers Guild v. Guild. Guinotte v. Chouteau Guion v. Knapp Gulley v. Grubbs Gunter v. Williams Guthrie v. Pugsley v Russell Gwynn v. Thomas 000 55, 148, 323 610 267 378 87 535, 543, 544, 637 445, 496 510 175, 181, 304, 532 208 520 377 223, 226 289 245 503, 624 245 193, 330, 511, 514 265, 281 275 131, 138 H. Hacker v. Blake v. Storer Hadduck v. Wilmarth Hadley v. Baxendale Haffey v. Birchetts 176, 193, Hagler v. Simpson Haiglit v. Hayt Hains v. Gardner Haire v. Baker 111, Haldane v. Sweet 95, Hale v. James v. New Orleans Hales v. Cox Hall v. Brewer v. Chaffee v. Dean 87, 206, v. Gale v. Hardy v. Martin v. Plaine v. Priest v. Scott Co. v. Smith Hallett v. Middleton Ham v. Ham 366, 36 Hamblin v. Bank of Cumberland Hamilton v. Cutts 152, 175, v. Elliot v. Wilson Hammatt v. Emerson Hammond v. Hannin v. Toulmin Hamond v. Hill Hancock v. Carlton v. Field Hand v. Armstrong Handcock >;. Handcock Hanna v. Shields 566, Hannah v. Collins v. Henderson Hanrick v. Patrick Hanson v. Buckner 162, Harbert's case Harden v. Cullins Harding v. Commercial Loan Co. Page 249, 635 303 65 273 227, 619 175, 178 537 429 112, 658 102, 638 233 226 618 522 371 271,275 73, 249 132 515, 520 312 638 313 95 136 384 429 177, 178, 179, 192 262 259, 304 541, 542 221 506 124 427 80 101, 172 623 5G7, 636 367 196 372 176, 228 516 '. Larkin Hardy v. Mills v. Nelson Hare v. Burges v. Cator Harlow v. Thomas Harmer v. Morris Harper v. Burgh r. Jeffries v. Perry Harriman v. Gray Harrington v. Long v. Murphy ?'. Stratton Harris v. Goodwyn 193, 287, 103, 112, 245, 272 340 366 636 290, 347 510 225, 427 43 321 113, 115, 273, 276 368 437 581, 582 326, 327 370, 384 64 92, 271 552 330 XXXIV INDEX TO CASES CITED. Page Harris v. Morris 6315 v. Newell 251 v. Ransom 638 v. Tyson 544 Harrison v. Boring 368, 380 r. Guerin 42 v. Vreeland 437 Harry v. Anderson 110 Hart v. Baylor 228 v. Gregg 366, 368 v. Porter 578, 580, 582, 585, 586 v. Thompson 516 v. Windsor 433 Hartford Ore Co. v. Miller 223, 249, 303, 336 Hartley v. Gregory 90 v. McAnulty 245 Hartman v. Lee 358, 516, 520 Harvey v. Alexander 245 v. Doe 68 Harvin v. Hodge 368 Harwood v. Benton 106 Haskell v. State 503 Haskill v. Sevier 101, 172 Hassam v. Dompier 560 Hastings v. O'Donnell 536 v. Webber 60 Hasty v. Ladd 512 Hatcher v. Andrews 93, 94, 646, 650 Hatton v. Waddy 610 Haverington's Case 93, 95 Hawk v. MeCullough 463, 515 Hawkes v. Orton 180 Hawkins v. Freeman 551 Hawthorne v. City Bank 118, 276 Hayden v. Mentzner 245 Hayes v. Bickerstaff 27, 70 165, 218 v. Fergusson 177 262, 264 v. Tabor 367 Haynes v. Colvin 520 v. Stevens 288 425, 426 v. White 41 249, 574 v. Young 102 Hazard v. Irwin 542 Heath v. Crealock 131 417, 420 v. Newman 568 v. Whidden 304, 339 527, 528 Heaton v. Fryberger 369 Heavilor v. Heavilor 114 Hedges v. Kerr 38,48 Heile v. Davison 632 Hellier ;;. Gaspard 437 Help v. Hereford 361, 362 Helvenstein v. Higgason 566 Hempstead v. Easton 377 Hencke v. Johnson 249 Henderson v. Brown 642 v. Hackney 408 v. Hay 40 v. Henderson 93 244, 275 v. Overton 397 Hendricks v. Keesee 303, 522 Henniker v. Turner 529 Henning v. Withers Henry v. Elliott Herbert v. Ford Heron v. Treyne Herrick v. Moore Herrin v. McEntyre Herrod v. Blackburn Herron v. De Bard Herryford v. Turner Hersey v. Turbett Hertzog v. Hertzog Hervey v. Audland Page 227 637, 639 552, 556 130 102, 271 323 498 602 39,41 597 230 517, 617, 618 Hesse v. Stevenson 473, 487, 489, 494, 653 Hicks v. Sheppard 654 Hickson v. Lingold 566 Hiern v. Mill 534 Higdon v. Thomas 245 Higginbotham v. Cornwell 517 Higtiins v. Johnson 619 Hile v. Davison 637 Hill v. Bacon 93 v. Butler 571 v. Hobart 41 v. Ressegieu 33, 42, 46 v. West 377 Hilmert v. Christian 515 Hinde'w. Gray 439 Hinds v. Allen 152 Hines v. Robinson 374 Hingen v. Payn 138 Hitchcock v. Fortier 367, 425 v. Giddings 541 v. Harrington 429 Hitchins v. Lander 64 Hoag v. Rathbun 637 Hoback v. Kilgore 37 Hobbs v. King 333, 377, 382, 510 Hobein v. Drew ell 574 Hobson v. Middleton 44 Hodges v. Connor 570 v. Saunders 43, 535 Hodgson v. East India Company 218 Hoffman v. Bosch 229 Hogan v. Calvert 89 Hogins v. Plvmpton 441 Holbrook v. Debo 150, 371 Holden v. Fletcher 379 v. Pike 256 Holder v. Taylor 147, 179, 181, 439, 442 Holeridge v. Gillespie 200 Holland v. Rogers 39,369 Holman v. Criswell 33 Holmes v. Sinnickson 227, 287 Holyoke v. Clark 50 Homer v. Purser 566 Homes v. Smyth 574 Hooker v. Folsom 566 Hooper v. Henry 367 Hoot v. Spade 265 Hope v. Stone 372, 383 Hopkins v. Grazebrook 221 v. Lee 229 Hopkinson v. Lee 529 INDEX TO CASES CITED. XXXV Page Hopper v. Lutkin (341 Hoppes v. Cheek 166, 635, 645, 647 Hoppin v. Hoppin 367, 369 Horbach v. Gray 592 Home's case 298, 299 Horsford v. Wright 225 Horsley v. Hilburn 369 Houghtaling v. Lewis 535 Houkey v. Vernon 387 Hovey v. Newton 526 v. Smith 510 Howard v. Doolittle 167, 439 v. Lovegrove 286 v. Witham 569 Howe v. Barker 245, 535 v. Harrington 47, 366 v. Walker 114 Howell v. Richards 52, 53, 60, 72, 119, 480, 483, 484 flowes v. Brushfield 124, 125 Hoxie v. Finnej' 371 Hoy v. Taliaferro 162, 177, 559, 567 Hoyt v. Dimon 367, 380 v. Thompson 63 Hubbard v. Apthorp 499 v. Jasinski 627 v. Norton 102, 111 112, 265, 272, 427 Hudson v. Steere 93 Hughes v. Bennet 491 v. Hatchett 638 v. McNider 638 v. Williams 622 Hulfish v. O'Brien 632, 638 Hull v. Gale 570 Hulme v. Tenant 511 Hulse v. White 227 Humphrvs v. Knight 220 Hunt's Appeal 525 Hunt v. Amidon 177, 196, 203, 321, 554 v. Danvers 173 v. Moore 543 v. Orwig 331 v. White 617 Hunter v. Daniel 64 v. Graham 570 v. Jameson 48 v. O'Neill 41 Hunting v. Sheldrake 523 Huntingdon v. Grantlai d 028 Huntly v. Waddell 435, 41)5 Hupp v. Hupp 648 Hurd v. dishing 391 , 497 v. Fletcher 120, 121 v. Hall 275 v. Smith 566 Hurley v. Coleman 646 Hum v. Soper 244 Hutch ins v. bloody 87, 93 v. Roundtree 283 Hutchinson v. Stiles 520 Huyler v. Atwood 514 Hyatt v. Mattingly 339 v. See ley 33,46 Page Hyde v. Canons of Windsor 444 Hymes v. Esty 100 Iggulden v. May 437, 474 Illinois Land Co. v. Bonner 331, 3eS2 Ingalls v. Cooke 93, 124, 427 v. Eaton 79, 80 v. Morgan 643 Ingersoll v. Sergeant 294, 598 Ingram v. Morgan 638, 643, 646 Innes v. Agnew 460 In re Cooper 155 Dickson 517, 524, 616 Gardner 623 London Bridge Acts 46, 47 Johnson and Tustin 454 Ireland v. Bircham 120, 368, 477 Irish v. Johnston 437 Irvine v. Irvine 368, 384 Ischam v. Morrice 365, 373 Isele c. Arlington Savings Bank 105 Ives v. Niles 153, 263, 592, 596 v. Van Epps 552 Jack v. Dougherty 245 Jackson v. Barringer 494 v. Bradford 366, 370, 380, 385 v. Bull 365, 373 v. Defendorf 494 v. Demont 68 v. Given 408 v. Hathaway 74 v. Hoffman 375, 482, 499 v. Hubble 366 v. Littell 366 v. McConnell 494 v. Marsh 159 v. Mills 375 v. Murray 365, 373 v. Sassaman 94 v. Summerville 592 v. Turner 227 v. Vanderheyden 378 v. Waldron 366 v. Winslow 366, 368, 380 v. Wright 365, 381 Jacock v. Gilliam 146, 393 Jacques v. Esler 115, 632, 648 James v. Emery 528 v. Hays 567 v. Lawrenceburgh Ins. Co. 559, 566 v. Lichfield 95,96,97, 107 v. McKernon 648 v. Patterson 190 Janes v. Jenkins 107 Jarvis v. Aikens 403, 404, 405 v. Buttrick 94 Jeffers v. Johnson 271 XXXT1 INDEX TO CASES CITED. Page K. Jefferson v. Morton 519, 523 Page Jefferys v. Jefferys 620, 621 Kane v. Sanger 321 Jemison v. Blowers 5U7 Kavanagh v. Corporation o Kings- Jenkins v. Briant 517, 523, 524 ton 325 v. Hopkins 188, 271, 278 339, 527 Kaye v. Waghorne 330 v. Jones 63,64 Kean v. Strong 443, 482, 492 v. Robertson 437 Keeler v. Wood 2S7, 288 Jenness v. Parker 556, 567 Keenan v. Gilison 520 Jennings v. Norton 89 Keightley v. Watson 529 Jerald v. Elley 109 Keiper v. Kline 30, 464 Jerritt v. Weare 53, 69, ' Keith v. Day 115, 335 Jeter v. Glenn 87, 93, 147, 289, 318, Kekewich v. Manning 621 460, 570 Kelley v. Jenness 375 Jewell v. Porter 367, 380 Kellogg v. Ingersoll 99, 100, 101, 102 Joeckel v. Easton 431 v. Malin 102, 271, 273 Johnson v. Bradley 357 v. Robinson 94 v. Farlow 374 v. Wood 331, 368, 427, 495 v. Gere 631, 632, 645 Kellum v. Berkshire Ins . Co 72, 95 v. Hollensworth 38 Kelly v. Dutch Church 152, 160, 166, v. Houghton 536 218, 227, 234 v. Irby 336 v. Low 110, 193 v. Johnson 5:)6 v. Riley 542 v. Jones 636 Kelsey v. Remer 92, 275, 278 v. Long 602 Kenada v. Gardner 190 v. Monell 115 Kendall r. Brown 391 v. Nyce 193, 201 Kennedy's Appeal 579 v. ( >pponheimer 166 Kennedy v. Gouveia 48 v. Prairie 65 v. Lyell 63, 64 v. Procter 436, 451 v. McCartney 367, 380, 382 v. Purvis 570 v. Newman 109 v. Simpson 262 v. Skeer 363, 411 v. Smock 42 Kenney v. Norton 304, 337 v. Viscon 147 Kennison v. Taylor 288 r. Walker 113 Kent v. Cantrall 109, 464 r. Wilson 620, 644 v. Chalfant 48 v. Wyatt 004 v. Watson 366 Johnston v Piper 39, 628 v. Welch 436 Joice v. Taylor 542 Keppell v. Bailey 293, 297 Jones v. Barkley 330, 474 Ker v. Ker 503, 623 v. Clark 189 Kercheval v. Triplett 375, 389 v. Davis 92 Kerr v. Kitchen 576, 584, 594 v. Franklin 353 v. Shaw 174, 175, 187 v. Fulghum 638 Key v. Henson 566 v. Gardner 41 v. Jennings 637 v. Green 369 Kibler v. Cureton 569 v. Hawkins 126 Kidder v. West 173 v. Kearney 397, 417 Kidney v. Stoddart 544 v. King 301 367, 380 Kilmer v. Wilson 396, 495 v. Noe 636 Kimball v. Blaisdell 150, 367, 380 v. Phillips 42 v. Bryant 304, 312 v. Pyde 536 v. Grand Lodge )66 v. Stanton 642, 644 v. Schoff 367, 380, 382 v. Waggoner 152, 643 v. Semple 372 ?•. Ward 245 v. West 638 r. Warner 303 Kimmel v. Benna 366 v. Worley 167 Kimpton v. Walker 437 Jordan v. Eve 102 Kincaid v. Brittain 60, 253, 262 v. Twills 218 King v. Gilson 252 , 367, 3S6, 308 Joslyn v. Taylor 42 v. Gunnison 579 Jourdan v. Jourdan 145 , 354, 355 v. Jones 132, 137, 279, 301, 306, 307, Judson v. Wass 41 340, 532, 623 Julian r. Boston, &c. R. R. Co. 5-22 v. Kerr 152 163 , 193, 228, 320 Juvenal v. Jackson 594 , 597, 598 v. Norman 162 INDEX TO CASES CITED. XXXV11 King v. Pyle v. Rea v. St. Patrick's Cathedral Kingdon v. Nottle Kingman v. Sparrow Kingsbury v. Milner v. Smith Kingston v. Preston Kinnear v. Lowell Kinney v. McCullough v. Watts Kinsman v. Loomis Kirhy v. Hansaker Kirk v. Burkholtz Kirkendall v. Mitchell Khkpatrick v. Miller v. Pearce Klopp v. Moore Klumpke v. Baker Knadler v. Sharp Knapp v. Lee v. Marlboro Knepper v. Kurtz Knickerbacker v. Killmore Knight v. Thayer v. Turner Knipe v. Palmer Knowles v. Kennedy Knox n. Jenks Koenig v. Branson Koestenbader v. Pierce Koger v. Kane Kolls v. De Leyer Kortz v. Carpenter Kostendader v. Pierce Kramer v. Carter Krehl v. Burrell Kruse v. Scripps Kuhn v. Freeman Kunckle v. Wynick Kutz v. McCune Kyle v. Fauntleroy v. Kavanagh 250, 801, 308, 314 227, 230 555, 177, 197 : 174. 180, 187, 281, 282 Page 228, 267 377 102 306 307, 531, 532 430 041 288 474 115 211 234, 438 364, 366 218 115 38,55 195 93 49,50 367 275, 316 569, 572 218, 438 204, 458 496 377, 403 566 44,48 252, 399 64 467 273 633 511 181, 183, 193, 314 98, 274 199, 206 605 494 171 437 102, 107 287, 619 37,48 Lacey v. Marnan Laild v. Noyes Latbrge v. Matthews L;iin«r v. Fidgeon Lamar v. Simpson Lamb v. Burbank c. Dantbrth v. Donovan v. Kamm v. Wakefield Lamerson v. Marvin Lam pet's case Lampon v. Corke Landes v. Perkins 223 112, 527 566 561 363 129 73. 103, 530 114 ::74 374, 391 559, 564, 565 63, 292, 362 244 431 Page Landydale v. Cheyney 439 Lane v. Berry 353 v. Drinkwater 528 v. Fury 193, 288 Langdale v. Nicklaus 94 Langworthy v. Smith 330 Lanier v. Hill 542 Lanigan v. Kille 239, 243 Lansing v. Van Alstyne 174 Large v. Penn 494 Lassels i>. Catterton 137 Latham v. Morgan 636, 646 Lathers v. Koegb 94 Latlirop v. Attwood Lattin v. Vail Laud man v. Ingram Laughery v. McLean Lawless v. Collier 559, 561 114 536, 566 248, 249, 263, 264, 276, 281, 282, 337 42 303, 462, 530 330 574 367, 380 229 221, 583 567 15J 39, 175, 176, 194, 195 330 367 68 231, 267, 554 41 610 119, 391 89 198, 271, 287, 288 171 548 632, 637, 638 336 646 Lawrence v. Dole v. Montgomery v. Senter v. Stonington Bank Lawry v. Williams Lawton v. Howe Lea v. Dean Leal v. Terbush Leather v. Poulteny Leary v, Durham Leavitt v. Savage Lee v. Clary v. Colehill v. Dean v. Foard v. Rook Leech v. Schweder Leeming v. Smith Leffingwell v. Elliott Legal Tender Cases Legge v. Croker Legsett v. McCarty Legh v. Legh Leird v. Abernathy Leland v. Isenbeck 536 v. Stone 113, 114, 246, 267 Le Neve v. Le Neve 413 Leonard v. Bates 574 v. Taylor 443 Le Ray de Chaumont v. Forsythe 323 Le Roy v. Beard 22, 48 Lethbridge v. Mytton 89, 90, 305, 609 Levit v. Witherington 111, 112 Levitzky v. Canning 30, 167, 288 Lew v. Bend 167 Lewers v. Earl of Shafteshurv 604 Lewes v. Ridge Lewis v. Baird v. Boskins v. Campbell v. Cook v. Davis v. Jones v. Lewis 302, 304, 305, 306 371, 397 41 218,219, 221,222, 342 318, 329, 345 566 74 74, 195 SXXV111 INDEX TO CASES CITED. Lewis v. Meserve 431 v. Morton 637 v. Smith 166 Liber v. Parsons 223, 226 Liddell v. Sims 574 Lienow v. Ellis 503 Light v v. Shorb 576, 577, 579, 586, 587, 589, 590, 592, 593, 639 Linderman v. Berg 153 Lindley v. Dakin 72, 114 Lindsey v. Veasy 65 Line v. Stephenson 147, 439, 443, 466 Linn v. Barkey 38 Linsey v. Ramsey 408 Little r. Allen 39 v. Bishop 64 v. Paddleford 41 Littlefield v. Getchell 330, 333 v. Pinkham 310 Littler v. City of Lincoln 36 Littleton v. Richardson 152 Livingston v. Peru Iron Co. 68 v. Proesus 68 Lloyd v, Dimmack 610 v. Farrell 35, 579 v. Jewell 555, 556 559 562 569, 572 v. Lloyd 416 v. Quimby 33, 112, 255, 327 v. Tomkies 167, 168 Lobdell v. Baker 542 Lock v. Furze 127, 235, 236, 237, 240 Locke v. White 366, 371 Lockridge v. Foster 542, 549 Lockwood v. Gilson 49, 50 v. Sturdevant 33, £ 265, 326 Logan v. Moore 367 v. Moulder 223 228, 303 v. Steele 307, 380 Lomas v. Wright 517, 524 Long Island It. R. v. Conkli a 396, 495 Long v. Allen 574 v. Israel 633 634, 638 v. Moler 93 113,115 Loom is v. Bedel 176, 182, 184, 187, 198, 227 v. Pingree 340, 370 373 384, 385 Lord v. Colley 541 v. Goddard 541 Lorick v. Hawkins 495 Lot v. Thomas 77, 263, 304, 424, 427 Lotlirop v. Snell 150, 567 Loudon v. Robertson 51 Longher v. Williams 294, 531 Loughran v. Ross 74 Lounsbery v. Locander 42 Loury >■. Hurd 570 Lovelace v. Harrington 642 Lovell v. Sherwin 517, 610 Lovering v. Lovering 438 Lovingston v. Sliort 635, 636, 637 Lowell v. Daniels 377 Lowrance v. Rohertson 227 Lowry v. Brown 36, 536 Lowry v. Tilleny Loyd v. Griffith Lucas v. Wilcox Luckett v. Triplett v. Williamson Lucy v. Levington Ludlow v. Gilman Ludwell v. Newman Ludwick v. Huntzinger Lukens v. Jones v. Nicholson Lull v. Stone Lumber Co. v. Gustin Lyde v. Mynn Lynch v. Onondaga Salt Co. Lytle v. The State 304 33, 45 265 640 41 301, 302, 304, 305 638 180 579, 581, 582, 585 591 169, 211 498 90 393 439 65 535, M. McAfee v. Bettis McAllister v. Reab McAlpin v. Lee v. Woodruff 510 552 552 93, 201, 234, 266, 275, 228,321, 264, 566, McBurney v. Cutler McCall v. Coover McCarthy v. Mann McCarty v. Le^gett 60, 252, 259, McCauley v. Moses McClaskey v. O'Brien 503, McClenachan v. Curwin McClowry v. Croghan McClure v. Gamble v. McClure McConnell v. Downs McCoy v. Lord McCrady v. Brisbane McCrea v. Purmort McCullough v Cox McCusker v. McEvey McDaniel v. Grace McDonald v. Beall v. Green v. McElroy McDowell v. Hunter McDunn v. City of Des Moines McFerran v. Taylor McGary v. Hastings 193, McGehee v. Jones McGill v. Jordan McGinnis v. Noble McGoodwin v. Stephenson McGowen v. Myers Mclnnis v. Lyman 166, McKay v. Carrington McKee v. Bain v. Pfout McKennan v. Doughman McKenzie v. City of Lexington McKinny v. Watts McKleroy v. Tulane 304 ; 620, 228, 526, 315, 153, 316, 563. 404 673, 636, 74, 162 273 : 229, 387, 324 229, 264 364 411 367 398 574 624 102 444 530 464 193 205 318 2-15 565 431 575 536 638 522 176 645 542 275 637 396 582 325 98 260 574 288 3; '3 113 361 625 40 INDEX TO CASES CITED. XXXIX McKnight v. Kellett McLean v. Barton v. Laidlaw McLeery v. McLeery MoLemore v. Mabson McLeod v. Skiles McMahan v. Stewart McMullin v. Wooley McMurphy v. Minot McNear v. McComber McWilliams v. Nisly Mabie v. Matteson Mace v. Wells Mack v. Patchin Page 553 54'J 384 4ol 566, 635 113 114 98, 183 324 265, 281, 498 410 49, 50 507 228, 237, 240, 439 Mackey v. Collins 77, 147, 195, 227, 569 v. Harmon 98, 274 Macklot v. Dubreuil 431 Macnamara v. Macnamara 26 Maeder v. City of Carondelet 169, 438, 441 Magaw v. Lothrop 582 Magee v. Hallett 378 v. McMillan 634 Magill v. Hinsdale 189 Magwire v. Riggin 313, 468, 507, 508 Mahoney v. Robbins 636 Maigley v. Hauer 245 Maine v. Cumston 438 Major v. Brush 5(56 v. Dunnavant 267 Maner v. Washington 569, 638, 647 Maney v. Porter 536 Manifee v. Morrison 50 Mann v. Lent 552 v. Pearson 495 v. Ward 434 v. Young 368, 370 Manning v. Cox 336 Manser's case 130 Mansfield v. Dyer 37 Markham v. Middleton 251 Markland v. Crump 318, 323, 344 Marlow v. Smith 42 Marsh v. Thomson 567 Marshall v. Craig 330 Marston v. Hobbs 54, 55, 56, 59, 77, 79, 92, 109, 144, 223, 244 Martin v. Atkinson 198, 228 v. Baker 60, 314, 315 v. Cowles 153 v. Drinan 438 v. Dwelly 377 v. Gordon 245, 331, 332, 343, 346 v. Long 223 v. Pace 65 Martyn v. McNamara 475 Marvin v. Applegate 636 Mason v. Caldwell 50 v. Cooksey 196 v. Crosby 541, 542 v. Ham 49 v. Kellogg 152, 155 v. Muncaster 368 Page Massey v. Craine 74 Massie v. Sebastian 367, 377, 380, 403 Masson v. Bovet 549 Master v. Miller 336 Mather v. Trinity Church 183 Matteson v. Vaughan 182, 184, 339 Maule v. Ashmead 438, 44U v. Weaver 437, 438 Maundrell v. Maundrell 23 May v. Taylor 330 v. Wright 227 Mayfield v. Barnard 172 Maynard's case 535 Maynard v. Moore 437 v. Moseley 535 Mayo v. Babcock 110 Mayor of Brookhaven v. Baggatt 444 Carlisle v. Blamire 324 New York v. Mabie 167, 168, 438, 439 Poole v. Whitt 189, 190 Mead v. Fox 41 v. Johnson 47, 541 Means v. Bricknell 570 Mecklem v. Blake 79, 315, 571 Medbury v. Watson 335, 542 Medlar v. Hiatt 112,114 Meeker v. Meeker 244 Meeks v. Bowerman 166 Megee v. Mellon 50 Mellen v. Boarman 50 Melley v. Casey 115 Mellon's Appeal 582 Mem inert v. McKeen 91, 99, 102 Menally v. White 510 Menard v. Massey 378 Mercer v. Hall ' 552 Merceron v. Dowson 321 Merrill v. Frame 438, 443 Merritt v. Closson 443 v. Hunt 637 v. Morse 152, 176 Messent v. Reynolds 440, 441 Messer v. Oestreich 73, 229, 265, 472 Metcalf v. Putnam 112, 494, 657 Metcalfe v. Archbishop of York 393 Mette v. Dow 227 Meyers v. Brodbeck 271 Michael v. Nutting 65 Mickles v. Dillaye 368 Middlebury College v. Cheney 368, 380 Middlekauff v. Barrick 536, 638 Middlemore v. Goodale 132, 329, 332 Middleton v. Arnolds 65, 68 v. Thompson 153, 158 Mid get t v. Brooke 29 Midgley v. Lovelace 529, 530 Mildmay's case 6 Miles v. Williamson 536 Miller v. Argyle 633 v. Avery 162, 632, 637, 645 i'. Bledsoe 358 v. Ewing 150, 371, 385 xl INDEX TO CASES CITED. Miller v. Fraley v. Halsley v. Heller v. Long «;. Owen v. Parsons v. Watson v. Winchell Mills v. Auriol v. Bell v. Catlin Page 36 182, 255 477 636, 637 638 130, 138 554 503 437, 506 227 59, 72, 109, 265, 272, 275, 499, 651 528 182, 217 569 v. Ladbroke v. Rice v. Saunders Milner v. Horton Milnes v. Branch 294 Miner v. Clark 152, 155, 156, 157 Mingo v. Parker 368 Misehke v. Baughn 267 Misner v. Granger 544 Mitchell v. Hazen 41, 50, 223 v. McMullen 637, 644 v. Petty 368 v. Pillsbury 93 v. Pinckney 51 v. Smith 67 v. Stanley 273 v. Warner 90, 98, 103, 207, 303, 307 v. Winslow 387 v. Woodson 366, 367 Moak v. Johnson 234 Mobley v. Keys 41, 574 Moens v. Heyworth 541 Moffatt v. Strong 189 Moggridge v. Jones 551, 552 Mohr v. Parmelee 98, 272 Monahan v. Colgin 245 Mondel v. Steel 552, 553, 564 Monte Allegre, The 51 Montgomery v. Reed 55, 73, 223 Mony penny v. Monypenny 25, 33 Mooney v. Burchard 193 Moore v. Harrisburg Bank 42 v. Hill 645 v. Lanham 147 v. McKie 246 v. Magrath 497 v. Parker 357 v. Rake 367, 380 v. Shelly 582 v. Vail 178, 182, 183, 188 r. Weber 119, 166 Mora ripe v. Norris 42 Morehouse v. Heath 113 Moreland v. Metz 182, 227, 275 Morgan v. Boone 200 v. Graham 369 v. Hannibal R. R. 193 v. Henderson 203, 205, 217 v. Hunt 173 v. Muldoon 152 v. Richardson 552, 559, 561 Morgan v. Smith 41, 98, 103, 557 Morley v. Polhill Morrice's case Morris v. Buckley v. Edgington v. Harris v. Owens v. Phelps 60, 262, 264, 266, v. Rowan v. Smith Morrison v. Beckwith v. Jewell v. McArthur v. Morrison Morse v. Faulkner v. Goddard v. Shattuck v. Tucker Mortimer v. Shortall Moseley v. Hunter Moses v. Wallace Mosher v. Mosher Moss v. Gallimore Mostyn v. Fabrigas i'. West Mostyn Co Mott v. Palmer Mountford and Catesby's case Mountford v. Catesby Moyer v. Shoemaker Munroe v. Pritchett Murphy's Appeal Murphy v. Lockwood v. Price v. Richardson Murray v. Jayne Muscot v. Ballet Musser ?•. Oliver Musson v. May Myers v. Craig N. 152 433,4 50 584, 585 109, 112, 574, 640 301 448, 449 596 173 436, 449 495 267, 268, 269, 583 227, 287 520, 521 648 556 73, 265 487 417 190 246 524 653 110 227 233 189 503 9,443 60 17 165, 172 554 541 520 40 182, 183 , 592, 594 212, 338 17,77 526 517 357 Naglee v. Ingersoll 190, 218 Nance v. Elliott 536 Napier v. Elam 543 Napper v. Allington 136 Nash v. Ashton 75, 82, 83 132 v. Palmer 170 ?>. Spofford 377 510 Nelson v. Harwood 377, 510 614 r. Matthews 227 267 Nervin v. Munns 54 475 Nesbit v. Brown 228 v. Montgomery 342 Nesbitt v. Campbell 574 v. Tredennick 200 Newbigging v. Adam 547 Newcomb v. Presbrey 150 New Jersey Ins Co. v. Meeker 522 Newkirk v. Cone 64 INDEX TO CASES CITED. xli Newton v. Osborn Nichol v. Alexander Nicholas v. Jones Nichols v. Kinney v. Nichols v. Walter Nick v. Edwards Nieto v. Carpenter Niles v. Harmon Nind v. Marshall Nixon v. Carco v. Hyserott Noble v. Cass Noel v. Bewley Noke v. Awder 17, 341 Nukes' case Xokes v. James Nolan v. Feltman Noonan v. Ilsley v. Lee Norcross v. James Norman v. Cunningham v. Foster Norris v. Ennis North v. Henneberry Northeote v. Ward Norton v. Babcock v. Colgrove v. Herron v. Jackson Nosier v. Hunt Nunnally v. White Nutting v. Herbert Nyce v. Obertz 0. 342, 348, 433, 434, 436, Fage 437 260 50 511 05 224 365 378 530 482, 483, 484, 485 396 47 321 397, 417 340, 347, 349, 350 443, 406 160 193 401, 571 037, 648 299 358 218, 480 602 370 302 92, 226, 255, 256, 279 271 48 560 251, 507 377 246 201, 265 249, 259, 05, 106, 182, 249, O'Bannon v. Paremour 367 Obbard v. Betliam 501 Ogilvie v. Foljambe 117 Oliling v. Luitjens 637 O'Keefe v. Kennedy 167 Oldfield v. Stevenson 566 Oliver v. Loye 504 v. Piatt 36 O'Neil v. Vanderburg 378 Onslow v. Londesborough 40 Ormrod v. Huth 541 Osborn v. Nicholson 101, 172 Osborne v. Atkins 317, 504 v McMillan 47, 49, 50 Osgood v. Osgood 272 Osterhout v. Shoemaker 190, 430 Oswald v. McGehee 542 Outram v. Morewood 251 v. Round 132 Overhiser v. McCollister 264, 315 Overstreet v. Dobson 93 Owen v. Thomas 219 Page Page v. Broom 44,46 v. Hill 190 v. Lashley 72, 1 1 1 Paken ham's case 294 296, 298 •I'.y.K 300 Palmer v. Elkins 341, 349, 305 v. Sparshott 528 Pargeter v. Harris 324, 342 Parham v. Randolph 542, 543 Parish v. Whitney 94, 102 Park i'. Bates 153, 154 182, 225 v. Cheek 245, 204 Parke v. Chadwick 244 Parker v. Bradford 506 v. Brown 58, r c v. Dunn 175 v. Fairbanks 207, 210 v. Harvey 517, 010 v. Jones 369 v. Parmelee 40, 42 v. Richardson 119 Parkins v. Williams 639 l^arkinson v. Sherman 504 Parks v. Brooks 635 Partridge v. Bere 325 v. Hatcli 281 v. Patten 151 340, 370 384, 385 ?'. Strange 02 Pate v. Mitchell 251 276, 303 Patrick v. Leach 229, 246 Patten v. Fitz 99, 102 Patterson v. Arthurs 100 101 102, 107 v. Hulings 552 v. Johnson 431 v. Lanning 450 v Moore 391, 412 v. Nixon 05 v. Pease 308, 375 v. Stewart 271, 281 v. Sweet 103 v. Taylor 0.38 v. Yancy 114 Patton o. England 566, 635 v. Hamilton 636 v. Kennedy 170 v. McFarlane 148, 176, 203, 205 v. Taylor 648 Paul v. Frost 330 v. Witman 153, 155, 150, 159, 161, 162, 197, 209, 321, 530 Paxson v. Lefferts 148, 354 Payne v. Craft 520 Payson v. Hadduck 522 Pea v. Pea 114 Peabody v. Phelps 536, 566 Pearson v. Davis 227 v. Morgan 544 Pease v. Christ 95 Pecare v. Chouteau 495 Peck v. Hensley 179, 500 v. Houghtaling 7S ,80, 149, 218 v. Jones 102 v. Smith 74 xlii INDEX TO CASES CITED. Page Peden v. Moore 552, 566 Peiraoll v. Elliott 626 Pelletreau v. Jackson 365, 866 Pember v. Matthews 610 Pence v. Duval 170, 228, 303, 532 v. Huston 574 Penfield v. Clark 42 Pliiii v. Lord Baltimore 516 v. Preston 581 Penning v. Plat 17 Pennsylvania v. Sinnns 581 People v. Sisson 566 v. Society 378 People's Savings Bank v. Alexander 102 Peques v. Mosby 574 Pereiful v. Hurd 637 Perkins v. Webster 494 v. Williams 112 Perley v. Balch 552 Perrot v. Austin 525 Perry v. Edwards 170 Pet and Cally's case 131 Peters i\ Bowman 337, 638 v. Farns worth 48 v. Grubb 207, 213, 481, 487 v. McKeon 227, 228 v. Myers 93 Petes and Jervies' case 479 Pettee v. Hawes 317 Pelts v. Gaw 494 Phelps v. Decker 68, 488, 555 v. Kellogg 386 u. Sawyer 66, 69, 160, 182, 188 Philips v. Everard 44 v. Smith 228 Phillips v. Clagett 336 v. Evans 101, 171 v. Mayor of New York 442, 629 v. Miller 96, 97 v. Reiehert 233, 265, 2G9 v. Thompson 391 Phoenix Ins. Co. v. Piquet 559 Piatt v. Oliver 389 Picot v. Page 449 Pierce v. Brew 93 v. Johnson 56, 57, 66, 304, 339, 527 v. Milwaukee R. R. 368, 383, 397 Piggott v. Earl of Salisbury 365 Pike v. Galvin 150, 340, 367, 370, 380, 384, 385, 403, 415 v. Goodnow 427 Pillsbury v. Mitchell 109, 110, 271, 304, 315 Pimm v. Insall 519 Pincombe v. Rudge 15, 143, 144, 145 147, 210 Pintard v. Martin 549 Pitcher v. Livingston 35, 39, 145, 220, 223,224, 231,271,287 Pitkins v. Leavitt 153, 154, 160, 161, 199, 287, 288 Pitman v. Conner 114 Plasket o. Bechy 522 Page Piatt v. Gilchrist 536, 632, 633, 634 v. Grand Trunk Ry. Co. 307 Platter v. City of Seymour 636 Playter v. Cunningham 166, 182 Plowman v. Shidler 425 Plumer v. Marchant 517, 525 Plunkett v. Penson 517, 522 Poillon v. Martin 325 Point Iron Works v. Simmons 39 Poke v. Kelly 581, 582, 589 Pollard v. D wight 60, 75, 77, 79 Pollock v. Speidel 146, 358, 368, 393 Pomeroy v. Burnett 271, 566 v. Drury 42 v. Partington 152, 284 Pomfret v. Ricroft 147, 207 Pool v. Pool 83 Poole v. Hill 528 Pope v. Biggs 189 Porter v. Bradley 95, 272, 275, 510 v. Hill 262, 263 v. Noyes 41, 93, 247 v. Ralston 172 v. Sullivan 150, 431 v. Swetnam 437 Portington's case 7, 10 Post v. Campau 90 v. Stiger 517 Potter v. Kitchen 79, 80 v. Potter 368, 396 v. Taylor 115, 304, 499 Poulett v. Hood 47 Poulton v. Lattimore 552 Pounsett v. Fuller 221 Powell v. Clark 494 v. Edmunds 114 v. Lyles 460 v. Manufacturing Co. 232 v. Monson Co. 92 Power v. Standish 610 Powers v. Dennison 73 v. Patten 403 Powis v. Smith 529 Poyas v. Wilkins 65 Poyntell v. Spencer 176, 197, 596 Pratt v. Eaton 468 v. Pratt 367, 386 Preble v. Baldwin 428 Prescott v. Hobbs 829 v. Trueman 56, 58, 90, 271, 272, 304 v. White 98 v. Williams 98, 104 Pretty man v. Wilkey 463 Prevost v. Gratz 638 Pre wit v Kenton 152, 162 Price v. Ayres 634 v. Blount 602 v. Neale 586 Prigmore v. Sheldon 536 Prince v. Case 331 Pringle v. Whitten 60, 147 Pritchard v. Atkinson 102 Proctor v. Johnson 525 INDEX TO CASES CITED. xliii Page Proctor v. Newton 218 v. Smith 353 v. Thrall 338 Proprietors of Kenneheck v Call 183 Prosser v. Edmonds 64 Pryor v. Wood 325 Pryse v. McGuire 570 Pudsey v. Nevvsam 137 Pugh v. Chesseldine 41 v. Mays 382, 445 Pulsifer v. Hotchkiss 552 Pumpelly v. Phelps 221 Purcell v. Heeny 572 Pusey v. Pusey 607 Pye v. Daubuz 613 Q. Qnarles v. Capell Quesueli o. Woodlief Quivey v. Baker R. Radcliff v. Ship Raines v. Calloway v. Walker Ralston v. Miller Randall v. Lower v. Rigby Randell v. Mallett Randolph v. Kinney v. Meeks Ranelagli v. Hayes Rant v. Cock Rantin v. Robertson Rathbun v. Ratlibun Rawlins v. Timberlake Rawlyns' case Raymond v. Fitch v. Holden v. Raymond v. Squire Rea v. Creel v. Minkler Read v. Fogg v. Pierce v. Whittemore Reading v. Gray Real v. Hollister Reasoner v. Edmundson 55, 56, 58, 247 149, 182, 1 271, 271, 176, 75, 196, 314 60, 262, Receiver v. Patterson Co Recohs v. Younglove Rector of Trinity Church v. Higgins Rector v. Waugh 381, 391, 393,412, Redgrave v. Hurd Redmon v. Phoenix Ins. Co. Red wine v. Brown 43, 318, 323, 535, Reed v. Hatch 148, 149, v. Pierce 275, v. Prentiss 517 495 366, 374 176 267 368 633 425 525 271 343 182 610 436 166 380 647 365 532 378 493 336 516 83 367 272 370 611 512 271, 635 551 265 611 44'.) 547 92 627 486 508 552 294 148 608 368 636 361 301, Reeder v. Craig Reese v. Gordon 552 v. McQuilkin v. Smith 252, 253, 259, , 536, 228, 397, 399 ; 115, 391 Reese River Mining Co. v. Smitl Refeld v. Wood folk Reggio v. Braggiotti Register v. Rovvell Reichert v. Snyder Reid v. Syeks Remick v. Remick Renshaw v. Gans Rex v. Creel 145, 182, 183, Reynolds v. Cathens v. Davies Rhea v. White Rhines v. Baird Rhode v. Alley o. Green 162, Ricard v. Williams Rice v. Goddard 555, v. Kelso v. Spottswood Rich v. Johnson v. Rich Richard v. Bent Richards v. Iowa Co. Richardson v. Boright v. Chasen v. Dorr 59 v. Horton v. Tobey v. Williams Richmond v. Tibbies Rickert v. Snyder 77, 175, 265, Rickets v. Dickens 144, 435, Rickett v. Pratt Ricketts v. Weaver Riddell v. Riddell Rigby v. Great Western Railroad Rigg v. Cook Right v. Bucknell 362, 303, Rimer v. Dugan Rindskopf v. Farmers' Loan Co. Rinehart v. Rinehart Riswick v. Wallach Roach v. Wadham Roat v. Puff Rohnrds v. Cooper Robb i\ Lefevre Roberts v. Levy 94, 112, 312, v. Woolbright Robertson v. Gaines v. Lemon 287, Robinius v. Lister Robinson v. Bakewell v. Bland v. Douthit v. Harm an v. Justice v. Neil 77, 206, 271, 274, 460 301 336, Co. 367, 395, 419 148, 566 281 398, ,402 540 648 289 ,412 287 116 634 582 522 374 138 436 330 39 163 520 572 369 303 281 491 317 278 544 110 304 519 94 644 514 288 495 645 532 337 490 380 416, 420 542 188 247 638 293 495 560 330 337 637 368 288 114 289 552 379 221 36 460 xliv INDEX TO CASES CITED. Robinson v. Oninianney v. Wilson Roekat'eller v. Donelly Rockhill v. Spraggs Rocksell v. Allen Roe v. Hayley v. Swezey Roebuck v. Dupuy Rogers v. Challis v. Colt v. Cross v. Horn v. Hussey v. Payne Roland v. Miller Roll v. Osborn Rolls and Osborn's case Rolph v. Croueb 152, 236, 237, 267, 269, Romig v. Romig Root v. Crock Roscorla v. Thomas Rose v. Hart v. Schaffner Rosenberger v. Keller Rosewel's case Ross's Appeal Ross v. Dysart v. Turner Rountree v. Denson Row v. Dawson 63, 325, Rowe v. Heath Rowley v. Bent Rowntree v. Jacob Royce v. Burrell Royer v. Ake v. Foster Rucker v. Lowther Rudil v. Savelli Rulner v. McConnell 494, 515, Ruggles v. Barton Rundell v. Lakey Runnels v. Webber Russ v. Alpaugh v. Perry v. Steele Russell v. Clark Ryder v. Jenny Ryerson v. Chapman i. Willis S. Sacheverell v. Froggatt Sage v. Jones Saint v. Taylor Salisbury Savings Society v. Cutting Salmon v. Rradsliaw ?;. Hoffman <-. Vallejo Salter v. Kiillcv Saltonstall r Gordon Sanborn v. Woodman 3, 150, Page Page 506 Sanders v. Betts 498 552 v. Wagner 255, 256, 625, 632 271 Sanderson v. Mayor of Berwick 123 114 Sandford i\ Handy 543 51 v. Travers 439, 459 531 San ford v. Sanford 371 520 v. Wheeler 41 461 Sargent v. Gutterson 112, 113, 330 604 Saunders v. Hamilton 153 553 v. Johnson 528 629 Savage v. Whitehead 116 51, 570 Sawyer v. Little 510 369 Sawyers v. Cator 450 330 Sauer v. Griffin 358 581, 584 Sayers v. Collyer 606, 607 13, 14 Scantlin v. Anderson 570 427 Schaffner v. Grutzmacher 378 240, 244, Sehermerhorn v. Vanderheyden 245 286, 290 Schlencker v. Moxsy 443 41 Schofield v. Iowa Homestead Co. 79, 80, 364, 41 1 316, 321 441 Scholastica's case 13 551 Schribner v. Holmes 102 326, 651 Schuylkill Railroad v. Schmoele 166,171 98, 271 Scoffing v. Grandstaff 303,300,366,367,.- 130 Scott v. Douglass 368 586, 590 v. Godwin 528 190, 440 v. Lunt's Administrators 294 303 v. Ray men t 604 382, 449 v. Scott 170, 412 336, 339 v. Simpson 574 288, 487 i\ Twis9 56 44 Scriver v. Smith 206 244 Scudder v. Andrews 560 520 Seabourne v. Powell 134 363, 387 437 Seaman and Browning's case 167 199 Seaton v. Barry 450, 579 37,48 Seddon v. Senate 168 22, 39 v. Tutop 251 , 656, 657 Sedgwick v. Hollenbeck 74, 167 367, 380 v. Stanton 64 93, 124 Seitzinger v. Weaver 458 535, 587 93 Selby v. Chute 173 356, 403 Servante v. James 528 93, 356 Seton v. Slade 42, 550 , 182, 183 Severn v. Clerk 451 541 Seymor's case 145, 389, 391, 392, 393, 47 412, 497 162, 288 Shackelford v. Handley 542 564 Shacklett v. Rawson 49 Shafer v. Wiseman 219 Shaffer v. Greer 458 Shannon v. Marselis 632, 650 294, 531 Share p. Anderson 580, 594 331 Sharp v. Carter 64 646 v. Conkling 528 tting 407 Sharpless v. Gregg 522 303 Shattuck v. Lamb 183 566 Shaw v. Arden 552 303 v. Galbraith 391 ,411,412 363 v. Hurd 331 544 v. White 233 115 v. Wilkins 227 INDEX TO CASES CITED. xlv 109, 203, Shearer v. Ranger Shears v. Dusenbury Sheffey's Executors v. Gardiner Shelby v. Marshall Shelton v. Codman v. Pt-ase Shepherd v. Temple Sherman v. Kane v. Williams Sherry v. Freeking Sherwood v. Barlow o. Vandenburgh v. Waller Sliirtz v. Shirtz Shober v. Robinson Shontz v. Brown Shorthill v. Ferguson Slireck v. Pierce Shumaker v. Johnson Siboni v. Kirkman Sidden v. Riley Sidener v. Hawes Sikes v. Wild Silk v. Prime Silverman v. Loomis Silverthorne v. Lowe Simers v. Saltns Simpson v. Belvin v. Greeley v. Hawkins 249, 636, 638, v. Lord Howden Sinclair v. Jackson Singleton v. Allen Sinker v. Floyd Sisk v. Woodruff Sisson v Seabury Skinner v. Kilbys i'. Starner Skip v. Hook Slack v. Mc Lagan v. Thompson Slater v. Rawson 56, 58, 176 Slingsby's case Sloper v. Fish Small v. Attwood 539, 543, 544, v. Proctor v. Reeves 182, 249, 536, Smiley v. Fries Smith v. Ackerman v. Addleman v. Babcock v. Baker v. Cannell v. Carney v. Chadwick v. Compton v. l)e Bussy v. Dixon 17. Evans u. Fiting 17. Howell «. Hughes v. Jefts Page 92 115 182 640 306 467, 507 552 374, 375 168 64 367 429, 430 64 232 153 43, 49, 457, 535 263 41,42 371, 377 525 113, 114 522 221 519, 523 153, 344, 528, 133, 383, 397, 93, 152, 163, 101, 102, 107, 271, 110 189 161, 229 366 648, 650 626 375, 376 147 337 161, 162 355 218 115, 412 138 573 38 345, 347 529, 530 42 545, 546 430 566, 635 370 271, 566 233 541, 542 417,613 426, 427 275 541. 547 284, 489 366 152 494 638 90 249, 571 272, 304 Pas?e Smith 17. Lloyd 112, 515 v. Low 361 v. Mercer 536 v. Mitchell 541 v. Montes 374 v. Negbauer 495 v. Newton 636 v. Pendell 364 i?. Perry 271 17. Richards 542, 543 17. Shepard 175, 189 17. Sillyman 586, 590, 593 v. Simonds 301 v. Sprague 98 r. Strong 56 223, 244, 247, 248 17. Sweringen 449 v. Williams 409 Smoot v. Coffin 638 Snow 17. Chapman 495 Snyder v. Jennings 179, 205 v. Lane 111, 112, 275 Soames v. Edge 604 Socum i'. Haun 77 Solomon v. Turner 561 Somers v. Schmidt 153 155, 156, 157 Somerville v. Hamilton 162, 251 Somes v. Skinner 260, 267 280, 281, 403 Soper 17. Stevens 536 Sorrells v. McHenry 566 Sorsbie v. Park 529 Souter v. Drake 42 South v. Hoy 303, 532 Southerland v. Stout 357 Spackman v. Timbell 519 Sparkman v. Gove 90, 437 Sparrow v. Kingman 366 368, 380, 430 Speakman i?. Forepaugh 588 Spear v. Allison 166, 580, 597 Spencer's case 143, 207, 293, 294, 295, 296, 298, 299, 342, 348, 433 434 437, 533 Spencer v. Durant 528 i7. Howe 110 v. Marriott 123 Spoor i;. Green 308 330, 339 Sprague v. Baker 175, 177, 192, 199, 316, 317 Spring 77. Chase 275, 282 17. Tongue 93,94 Springer v. Bartle 37 Spruill 17. Leary 346, 357 Spurr 17. Andrew 98, 113 Squire v. Harder 429 Staats v. Ten Eyck 220, 222, 223, 243, 281 624 Stack t7. Royse Stafford v. Van Rensselaer 325 Staines 17. Morris 43 Stambaugh v. Smith 56 Stanard v. Eldridge 270 271, 275 Stanley v. Goodrich 113 494, 657 17. Hayes 120 i7. Jones 64 xlvi INDEX TO CASES CITED. Stannard v. Forbes v. Ullithorne Staples v. Dean Stark v. Olney Starke v. Harrison v. Hill Starkey v. Neese State v. Crutchfield v. Holloway Stearns v. Hendersass Stebbins v. Wolf Steele v. Adams v. Mitchell v. Richardson Stehley v. Irvin Steigleman v. Jeffries Steiner v. Baughman Steinhauer v. Witman Stell v. Barham Stephen v. Bagwell v. Beall v. Ells Stephens v. Hotham Sterling v. Peet 50 Stevens v. Jack Stevenson v. Lambard v. Loehr v. McReary Stewart v. Anderson v. Drake 175, v. Hadley v. Noble v. West 39, 148, Stidham v. Matthews Stiger v. Bacon Stileman v. Ashdown Stiles v. Hobbs Stimpson v. Thomaston Stinchfield v. Little Stinson v. Sumner Stitea v. Hobbs St. John v. Palmer Stock v. Aylward Stock Co. v. Saas Stockton v. Cook Stockwell v. Couillard Stoddart v. Smith Stoever v. Witman Stokes v. Jones Stone r. Buckner r. Denny >-. Fowle v. Hooker v. Patterson v. Peake Story v. Richardson Stout v. Jackson Stow v. Stevens Strachn v. Foss 536, Page 478 22 248 231, 288 368 566 556, 566 51 544 374 229 245 176, 576, 577, i 584, 378, 193, 227, 172 583 552 397, 412, 495, 500 578, 579, 585, 596 391 63 511 51 44 176, 223. 225, 231 162 321 171 432 4G1, 508 255, 271, 275, 287 572 228 151, 173, 212, 339, 527, 528 514 632 516 571 429 50 262, 316 313 185, 187 622, 623 56, 571 642 498 581, 582 65 382 637 542 574 177, 179 189 574 528 145, 227 42 380 Bank 181, 176, Strain v. Huff Stratton v. Kennard Strawbridge v. Cartledge Strawn v. Strawn 378 Streaper v. Fisher Street v. Blay 552 Streeter v. Henley v. Streeter Stroliauer v. Voltz 115, 330 Strohecker v. Housel 450 Strong v. Downing v. Peters v. Waddell Stroughill v. Buck Stuart v. Kissam Stubbs c. King v. Page Stultzfoos' Appeal Style v. Hearing 433 Sumner v. Barnard 425, v. Wentworth v. Williams 43,48,226,281, 288, 438, 481 : Sumter v. Welsh Surget v. Arighi 166, Susquehanna Coal Co. v. Quick Sutton v. Sutton 536 Suydam v. Jones 112, 113, 247, 323, Swafford v. Whipple 79, 223, 228 ; Swaine v. Great Northern Railroad Swan's case Swan v. Drury v. Searles v. Stransham Swartz v. Ballou Swasey v. Brooks Sweet v. Brown Sweetser v. Lowell Swenk v. Stout Swett v. Patrick Swift c. Hawkins Symmes v. Smith 443 106, 126 152, 225, 287, Page 567 567 245 , 510 294 556 566 439 ,429 , 593 645 543 638 432 520 561 223 517 442 427 510 287, 487 147 167 333 541 331, 336 245 604 128 41 444 525 288 160 498 385 160 530 561 130 Tabb v. Binford Taft v. Stevens Taggart v. Risley Taggert v. Stanbury Talbot v. Bedford Tallmadge v. Wallis Tallman v. Green Taltarum's case Tankersly v. Graham Tiinner v. Livingston Tapley v. Lebeaume Tapscott v. Williams Tarpley v. Poage Tarwater v, Davis Taul v. Bradford Tavenner v. Barrett 555, 145 366 368 48 148 559, 562, 564 543, 611 9, 10, 13, 390 566 265 223, 244 529, 532 600, 601 41 39 37,39 INDEX TO CASES CITED. xlvii Taylor v. Ashton r. Brodrick v. Davis v. Debar v. Fleet v. Gilman v. Harrison v. Heitz v. Holter v. Horde v. Lyon v. Priest v. Sliufford v. Stewart r. Stibbert Tefft v. Munson Page 641 233 50 133, 134, 397, 41(5 543 112, 627, 654 50 95, 272 229 10, 52, 53, 69, 70, 183 636 339, 522 378 161 95 403 Temple v. Partridge 360 Templer v. McLachlan 552 Templeton v. Kraner 571 Terrett v. Brooklyn Improvement Co. 90 v. Taylor 368 Terry v. Drabenstadt 153, 155, 265, 275, 290 Thacher v. Dinsmore 48 Thackeray v. Wood 31, 82, 83, 84, 123 Tharin v. Fickling 41 Thayer v. Clemence 272, 304, 317 v. Wendell 50 v. White 41 The Monte Allegre 51 Thomas v. Harris 585, 587 v. McCann 542 v. Maddan 330 v. Perry 57, 60, 65, 69 v. Powell 536 v. Stickle 176, 179, 367, 380 Thompson v. Christian 566 v. Mansfield 556 o. Merrill 377 v. Morrow 232, 233 v. Sanders 323 v. Shattuck 323 v. Shoemaker 41, 574 v. Thompson 25, 483 Thorndike v. Norris 367, 380 Thornton v. Court 324, 327, 336, 337, 338 v. Wynn 551,552,560 Threlkeld v. Fitzhugh 227 Thursby v. Plant ' 526 Tib bets v. Ayer 565, 574 Ticknor v. Harris 520 Tierney v. Whiting 265, 275 Tillotson v. Boyd 305, 306 v. Grapes 554, 555, 574 v. Kennedy 366, 367, 373 Tilton v. Emery 374 Tindall v. Conover 42 v. Harkinson 543, 549 Tinney v. Ashley 41 Tipton v. Jones 636 Tisdale v. Essex 166 Todd v. Gallagher 589, 596 Page Todd v. Todd 4, 3o2 Tone v. Brace 438, 637 Tong v. Matthews 228 Tooker v. Grotenkemper 122, 443 Tourle v. Rand 613 Tourville v. Nash 577 To us saint v. Martinnant 554 Town v. Needham 318, 326 Townsend c. Goelet 629 v. Morris 144, 145, 304, 532 v. Weld 113, 247 Tracey v. Shumate 620 Trask v. Vinson 555 v. Wilder 311 Traster v. Snelson 73,77 Traver v. Halstead 41 Traynor v. Palmer 515 Tremain v. Liming 39 Trenchard v. Hoskins 436, 491 Trevins v. Cantee 629 Trevivan v. Lawrence 361, 365, 381 Trinity Church v. Higgins 90, 611 Triplett v. Gill 57, 66, 83 Trotter v. Page 93 True v. Haley 256 Trull v. Eastman 150, 367, 373, 345 Trumbo v. Lockridge 636, 647 Trust & Loan Co. v. Covert 173, 287, 368 v. Ruttan 367, 383 Trutt v. Spotts 74, 215 Try on v. Whitmarsh 541 Tucker v. Clarke 258, 259, 399, 401, 402 v. Cocke 495 Tufts v. Adams 109, 198, 255, 258, 271, 275, 316, 324 Tuite v. Miller 74, 193, 194, 201, 612 Tull v. Royston 94 Turnbull v. Gadsden 542 Turner v. Allen 567 v. Cox 522 v. Goodrich 153, 199, 288 v. Harvey 542, 544 v. McAdory 568 v. Miller " 289 v. Scott 412 Tuseumbia Railroad Co. v. Rhodes 648 Tuthill v. Babcock 542 Twambly v. Henlev 57 Twynam v. Pickard 321, 530 Tye v. Gwynne 552, 559, 561 Tyler v Heidorn 294 v. Young 574 Tyrrell v. Ward 369 Tyson v. Passmore 411 u. Underwood v. Birchard 166 Union Bank v. Pinner 632 United States v. Howell 153, 162, 330, 331 U. S. Bank v. Bank of Georgia 536 xlviii INDEX TO CASES CITED. Page University of Vermont v. Joslyn 182 U pshaw v. Debow 636 Upton v. Barrett 68 c. Townend 17-4 Urmston v. Pate 536, 538 Urquhart v. Clarke 358, 516 Vail v. Railroad Co. 228, 246 Valle v. Clemens 366, 371 Vanada v. Hopkins 38, 48 Van Brunt v. Schenck 183 Van Buren v. Digges 552, 560 Vance v. House 637, 643 Vancourt v. Moore 323, 348 Vanderkarr v. Vanderkarr 148, 174 Van Doren v. Relfe 314 Vane v. Lord Barnard 87, 88, 89, 270, 535, 586 Van Epps v. Harrison 543 Van Eps v. Schenectady 47 Van Hoesen v. Benham 68, 330 Van Home v. Crain 321 v. Fonda 382 Van Lew v. Parr 539, 569, 570, 638 Vanmetre v Griffith 199 Van Nostrand v. Wright 75 Van Rensselaer v. Hays 294 v Kearney 115,364,366,379,304 v. Head ' 294 v. Stafford 325 Van Riper v. Williams 632 Van Waggoner v. McEwen 249, 632 Van Wagner v. Van Nostrand 72, 73, 94, 112, 113 Van Winkle v. Earl 112 Vardeman v. Lavvson 42, 43 Varick v. Edwards 366 Vaughn v. Stuzaker 74 Ve nable v. Beauchamp 200 Vermont Railroad v. Hills 106 Vernam v. Smith 439 Vernon v. Smith 213 Vibbard v. Johnson 559 Vick v. Percy 636, 647 Vigers v. Pike 547 Vining v. Leeman 566, 573 Vorhis v. Forsythe 94, 109 Vreeland v. Blauvelt 368 Vrooman v. Phelpa 553 Vyvyan v. Arthur 213, 437 w. Wace v. Bickerton 265 Wachendorfy. Lancaster 245 Wacker v. Straub 283, 581 Waddilove v. Barnett 189 Wade v. Oomftock 169,228 v. Halligan 439 Page 68, 367 245 112, 113, 114, 246, 267 272, 506 510 377 568, 637, 640, 647 114 55, 77, 217 Wade v. Lindsey v. Merwin Wadhams v. Innes v. Swan Wadleigh v. Gaines v. Glines Wailes v. Cooper Wainscott v. Silvers Wait v. Maxwell Wakeman v. Duchess of Rutland 45, 536 Walden v. Bodley 190 Waldo v. Hall ' 439 v. Long 275, 287 Waldron v. McCarty 174, 187, 191, 192, 193, 196, 203, 344 Walker v. Deane 199 v. Deaver 93, 275, 276, 313 v. Gatlin 101, 172 v. Gilbert 636 v. Hall 382, 446, 450 v. Moore 221 v. Physick 437 v. Renfro 445 v. Wilson 73, 249, 570 Wallbridge v. Everitt 486 Wallace v. Maxwell 378 v. Miner 375 v. Talbot 227, 267 Walton v. Bonham 646 v. Carr 162 Wamsley v. Stalnaker 634, 637 Ward v. Ashbrook 93 v. Audland 617, 618, 620, 621 v. Bartholomew 48 u. Grayson 638 v. Packard 543, 544 Ware v. Houghton 568 v. Weathnall 227 Wark v. Willard 367, 380, 403 Warn v. Bickford 131, 138 Warner v. Daniels 542 Warrick v. Nairn 552 Washburn v. Picot 561 Waters v. Dean of Norwich 68, 144, 226 v. Mattingley 542 Watkins v. De Lancey 172 v. Holman 190, 520, 522 v. Owen 612 v. Wassell 367, 369 Watson v. Blaine 245 v Irish 567 v. Parker 517 v. Phelps 37 Watts v. Parker 56 v. Waddle 42 v. Wellman 116 Waugh v. Land 45 v. Miller 391 Way v. Arnold 64, 407, 408, 413 Wead r. Larkin 347 Weale v. Lower 361 INDEX TO CASES CITED. xlix Weaver v. Wilson Webb v. Alexander v. Austin v. Russel Webber v. Webber Weber v. Anderson Webster v Conley Page 6ii6 1G2, 174, 187, 301 437 339, 520, 527 223 44, 430 Weed Sewing Machine Co. v. Emer- son 366 Weeks v. Burton 541 Weems v. McCaughan 466 Weidler v. Farmers' Bank 579 Weiser v. Weiser 436, 449 Weiting v. Nissley 224 Welch v. Adams 189 v. Dutton 367 v. Mandeville 336 Weld v. Traip 95 Wellborn v. Finley 380 Wellesley v. Wellesley 393 Wellman v- Dismukes 572 v. Hickson 65 Wells v. Fydell 525 Welsh v. Davis 50 v. Kihler 147 Wen del v. North 153 Wentworth v. Cock 525 v. Goodwin 556, 567 West v. Blakeway 330 v. Spaulding 124 v. Stewart 73, 207 v. West 228 Westbrook v. McMillan 570 Western Mining Co. u . Pey tona Cannel Coal Co. 373 West London Railroad Co. v. London & Northwestern Railroad Co. 321 Westrope v. Chambers 176, 179, 304 Wetberbee v. Bennett 98, 233, 269, 273, 274 Whallon v. Kauffman 476, 495 Wheat 17. Dotson 553, 566 Wheatley v. Lane 525 Wheeler v. Hatch 54, 55, 57, 69 v. Sohier 322, 323 v. Wheeler 336 Wheelock v. Henshaw 382 v. Thayer Whisler v. Hicks 207, 304 271, 560, Whitbeck v. Cook 74, 100, 510 White v. Brocaw 371 v. Erskine 150, 340 v. Foljambe v. Lowry v. Patten 43 583 403, 404, 405 v. Presly v. Sanborn 318 503 v. Stevens 313 u. Stretch 93, 632 v. Tucker 281 v. Whitney 193, 226, 255, 318, 321, 322, 324, 326 v. Williams 154 4:l' ); 451, 458, 50, 282, 549, 193, 559, 561, 536, 101 569. 571, 374 367 539 Whitehead v. Carr Wliitehill v. Gotwalt Whiting v. Dewey Whitlock v. Denlinger Whitney v. Allaire v. Dinsmore v. Lewis Whittaker v. Cone Whittemore v. Farrington Whittlesey t\ Broliammer Whitton v. Peacock Whitworth v. Carter v. Stuckey Wicks v. Hunt Wiesner v. Zaun Wiggins v. McGimpsey Wight v. Shaw Wightman ?•. Reynolds v. Spofford Wilcox v. Lucas v. Musche Wilde v. Gibson Wilder v. Davenport v. Ireland 72, 119, 153, 162, 166, Wildridge v. McKane Wiley v. Fitzpatrick 647, Wilford v. Rose Wilhelm v. Fimple 228, Wilkins v. Fry v. Hogue Willard v. Twitchell 5i Willets v. Burgess Williams v. Beeman 228, v. Burg 153, v. Burrell 142, 144, 235, 236, 237, 342, 438, 444, 474, 525, v. Claiborne v. Fowle v. Harkins v. Hathaway v. Hogan 67, 68, v. Presbyterian Society v. Shaw v. Thurlow 367, v. Wetherbee 149, 153, 161, 304, Williamson v. Codrington 140, 141, 521,615,617, v. Holt v. Raney v. Test v. Williamson Willis v. Astor v. Haliburton Willson i: King v. Willson 152 101 84, 223, 227, 230, 271, 272, 275, Wilson's Appenl Wilson v. Baptist Society v.Cochran 51,98,100,101, 207, 227, 589, 592, v. Forbes 57, 69, 223, 244, 251, v. Getty 35 491 499 666 552 317 562 67 656 358 342 172 638 604 368 574 377 383 536 658 271 547 181 182 526 649 77 574 43 637 1, 60 271 281 289 240, 526 364 90 506 441 532 364 153 380 195, 323 145, 618 112 536 245 288 47 172 377 256, 278 581 553 108, 594 304 42 d INDEX TO CASES CITED. Page Wilson v. Irish 2U5 v. Jordan 566 v. Knubley 518, 523, 524 v. McElwee 153, 160, 197 v. McEvvan 368 v. Peele 315 v. Shelton 245 v. Short 64 v. Taylor 320, 323 v. Widenham 55, 310, 326, 329, 346 v. Wood 40 Wilt v. Franklin 244 Wimberg v. Sehwegeman 635, 645 Wimberly v. Collier 152, 288 Winkler v. Miller 37 Winne v. Reynolds 41 Winslow v. McCall 281 Winstead v. Davis 568 Winston v. Gwatlnney 542 v. Vaughan 458, 462 Winter v. D'Evreaux 132 Winterbottom v. Ingham 190 Withers v. Atkinson 582, 589 v. Baird 35, 582 v. Bircham 528 v. Green 552, 553, 560 v. Morrell 637 Witherspoon v. Anderson's Execu- tors 226 Withy v. Mumford 323, 344 Witter v. Biscoe 39 Witty v. Hightower 148, 177, 179, 182, 195, 638 Wivel's case 362, 363 Wofford v. Ashcraft 638 Wolbert v. Lucas 588, 589, 590, 591, 595 Wolfe v. Hauver 245 Wood v. Forncrook 176 v. McGuire 65 Woodbridge v. Banning 382 Woodburn v. Kenshaw 439 Woodfolk v. Blount 36 Woodhouse v. Jenkins 125 Woodroff v. Greenwood 17, 170 Woodruff r. Bunce 637, 638, 643, 645 Woods v. North 60, 400, 559, 639, 646 Woodward v. Allan 176, 200 v. Rodgers 602 Woodworth v. Janes 67 Woolam v. Hearne 113, 651 Woolley v. Newcombe Worley v. Frampton Worthington v. Curd v. Staunton v. Warrington Worthy v. Johnson Wotton v. Cooke v. Hele 166, Wray v. Furniss Wright v. De Groff v. Herron v. Meek v. Nipple v. Shumway v. Sperry v. Wright Wyatt v. Garlington Wyche v. Macklin Wye and Throgmorton Wyman v. Ballard v. Bridgen Wynn v Harman Wyse v. Snow Page 78, 79, 80 43,44 112, 639, 647 641 221 43, 49 130 167, 218, 509, 510 646 50 391 65 265, 315 363, 387 326, 327, 337 393, 397 638 561 s case 137 335, 336, 371, 275 257, 275 371, 498 526 Yancey v. Lewis Yazel v. Palmer Yelton v. Hawkins Yelverton v. Yelverton Yokum e. Thomas Yonge v. McCormick Young v. Adams v. Bumpass v. Butler v. Clippinger v. Covell v. Hargrave v. Harris v. McClung v. Raincock Youngman v. Linn 580, 582, 586 : 166, 634 566 161, 246 393 289 645 536 544 637, 638, 639, 646 498 541 435 539 638 53, 60, 109, 301, 431, 484, 532 589, 592 Z. Zent v. Picken Zouch v. Swaine 60 625 THE LAW OF COVENANTS FOR TITLE. COVENANTS FOR TITLE. CHAPTER I. WAKRANTY AND THE INTRODUCTION OF COVENANTS FOR TITLE. § 1. The introduction into general use of the " covenants for title " towards the close of the seventeenth century, in place of the feudal warranty, was one of the natural incidents of the change from the ancient to the modern system of law, which, having its rise about the end of the reign of Henry the Seventh, had, towards the latter part of that of Charles the Second, assumed something of a regular form. It is familiar that the principal features of this change, effected partly by statute and partly by gradual alteration of the common law, were the restora- tion of the right of devise, the abolition of military tenures, the disuse of real actions, the introduction qf conveyances to uses, of the mode of trying title to land by ejectment, the enactment of the statute of frauds and perjuries, and the establishment of a regular system of equitable jurisdiction. With the disuse of real actions fell the law of warranty, which, from peculiar causes, had grown to be one of the most difficult subjects in the ancient system. And yet less than a century ago it was truly said by a learned writer : " Abstruse, and in most respects obsolete, as the learning respecting it unquestionably is, it continues to deserve the attention of every person who wishes to obtain accurate no- tions of those branches of our law which are more immediately connected with the doctrines which respect the alienation of landed property." a If this be true as to the English student, it is more emphatically true as to the American student. For although it would at first seem that the absence with us of the 1 Butler's note to Co. Litt. 365 a. 1 1 § 3.] WARRANTY AND THE INTRODUCTION [CHAP. I. law of primogeniture would of itself forbid the application of many of the incidents of the law of warranty, yet it will be found that to that law there has been, and is to this day, attached a practical importance on this side of the Atlantic which is denied at its home. A sketch of the law as it formerly existed cannot, therefore, be considered unnecessary. § 2. By the feudal constitution, homage and warranty were reciprocal. Long before the introduction of deeds, it was the law that, while the vassal should render homage to his lord for the fief received at his hands, the lord should protect the vassal in its enjoyment. 1 If, therefore, its title were disputed, and the lord, called on to warrant or insure it, failed so to do and the fief were lost, he was bound to furnish another of equal value. 2 This war- ranty was originally created without express contract of any kind, — it was simply a natural incident of tenure, and its effect was twofold : not only did it thus protect the vassal from the para- mount title of others, but, what was perhaps of scarcely less consequence in those rude times, it protected him against any attempt of his lord to take back what he had parted with ; in other words, the warranty operated as a rebutter, as it was termed, by barring the warrantor and his heirs from claiming any portion of the land. § 3. When, subsequently, it became usual to authenticate the transfer of land by charters or deeds, whether the latter did or did not contain the technical word warrantizo? a warranty was 1 6 Bracton (Twiss), 15, 47, 81, 85 ; close of the last century. While it is Gilbert's Tenures, 139 ; 1 Reeves's His- familiar that Bracton, who wrote in the tory of the Common Law (ed. 1869), 423. thirteenth century, drew much of his 2 Wright, in his Introduction to the knowledge from the Roman law, — less per- Law of Tenures, pp. 27-32, &c, seems to haps from the original authorities them- think this could only have been so in the selves than from the Summa to the Code case of improper feuds, so called, — viz., and Institutes by Azo, — yet it is at least those which were sold or granted free of doubtful whether, as has been contended all service, — and that it was unlikely that (Guterbock, Bracton, 58 et seq. ; 1 Spence, where a feud was generously given, the Eq. Jut. 10), the Roman law had an au- lord should be held to make good its loss, thority which, in the absence of custom or The question has been much discussed by statute, was recognized and obeyed in the civilians (see Butler's note to Co. Litt. England. The subject is partially con- 365), but the weight of authority, even sidered in Judge Holmes's work, "The at the time when Wright and Butler Common Law," and more fully in the first wrote, seems to be as stated above. In chapter of Judge Hare's recent treatise on fact, the sources of the common law — Contracts. not to this day traced with precise accu- 3 "And no other verb in our law," rac y — were better known, or at least says Coke, "doth make a warranty, but appreciated, both before and since the warrantizo only." Co. Litt. 384 a. 2 § 5.J OF COVENANTS FOR TITLE. [CHAP. I. implied from the word of feoffment dedi, and this was termed a warranty in law. 1 § 4. As early as the year 1276, the statute de bigamis 2 was de- claratory of the effect attached by the common law to the use of this word. " In deeds where is contained dedi et concessi without homage, or without a clause that containeth warranty, and to be holden of the givers -and their heirs by a certain service, it is agreed that the givers and their heirs shall be bound to war- ranty ; " — "and even if there be," says Coke in his exposition of this statute, 3 " an express warranty in the deed, yet that taketh not away the warranty that is wrought by force of the word dedi, but the feoffee may take advantage either of the one or the other at his pleasure." 4 The warranty, therefore, which naturally flowed as part of the reciprocal consequences of feudal tenure, could not be modified by an express warranty. 5 The second clause of the statute, however, modified the com- mon law, by declaring that " where is contained dedi et concessi, to be holden of the chief lords of the fee or of others, and not of feoffors or of their heirs, reserving no service, without homage or without the foresaid clause, their heirs shall not be bounden to warranty, notwithstanding the feoffor during his own life by force of his own gift shall be bound to warrant ; " in other words, where no tenure between the grantor and grantee was created by the gift, the word dedi implied a warranty merely by the donor during his life, and not one which would impose an obligation on his heirs. § 5. This was the first statutory alteration of the law of war- ranty. The second came but two years after. Every warranty which descended upon the heir of the warrantor was, as has been seen, operative to prevent the latter from recovering back the land against the warranty of his ancestor, and this whether he 1 "Because in judgment of law they," 6 Anne, c. 35, giving a certain effect to that is, the words from which warranty is the words "grant, bargain, and sell," an implied, "amount to a warranty, apart act which has been copied more or less from the word warrantizo." Co. Litt. literally in many of the United States. supra. See Ch. XII. 2 4 Edw. I. c. 6. 5 That is to say, "if a man make a 3 2 Institutes, 275. feoffment by dedi, and in the deed doth 4 This is the earliest instance of statu- warrant the land against J. S. and his tory enactment giving a certain effect to heirs, yet dedi is a general waiTanty the words of conveyance, and doubtless during the life of the feoffor." Co. Litt. afforded the precedent for the statute of 384 a. 3 § 5.] WARRANTY AND THE INTRODUCTION [CHAP. I. had or had not inherited from the latter other lands wherewith to meet the claim,; in other words, whether he had or had not assets by descent. 1 Hence, if a tenant by the curtesy should alien his wife's land with warranty, this warranty would descend upon the eldest son, — for the law of warranty and the law which gave the inheritance to the eldest son were coeval, — and bar him from claiming the inheritance which he would otherwise have derived from his mother, and this though without assets from the father. 2 To remedy this flagrant injustice, the statute of Gloucester 3 was passed, which provided that " if a man alien a tenement that he holdeth by the law of England, his son shall not be barred by the deed of his father (from whom no heritage to him descended) to demand and recover, by writ of mort cCancestor, of the seisin of his mother, although the deed of his father doth mention that he and his heirs be bound to warrant." 4 And it then went on to say, " And if any heritage descend to him of his father's side, then he shall be barred for the value of the heritage that is to him descended ; " in other words, the warranty of a tenant by the curtesy would not bar the son, unless the latter had inherited other lands from the father, in which case he would be barred to the extent of their value. In every other case, however, warranty barred with or without assets by force of the common law. 5 1 " And it is to be understood that deed which contained a covenant of war- before the statute of Gloucester, all war- ranty, but which, by reason of defective ranties which descended to them which are acknowledgment, was inoperative to pass heirs to those who made the warranties her estate. After her death, the husband were barres to the same heirs to demand married again and died intestate ; there any lands or tenements against the war- were children of the second marriage, and ranties, except the warranties which com- his estate descended equally to both sets mence by disseisin." Litt. § 397. of children. The children of the first 2 2 Institutes, 292. marriage brought ejectment to recover the 8 6 Edw. I. c. 3, A. D. 1278. land which had been their mother's, but, 4 It may be here mentioned, as showing by force of the statute referred to, failed the connection in this country between the to recover it, on the ground that they had law at the present day and the old law received assets by descent from their father thus attempted to be sketched, that a to the full value of the land which he had rather recent case in Kentucky arose under conveyed with warranty. They then an old statute there, which provided that, brought suit against the personal repre- " If the deed of the alienor doth mention sentative of their father, for payment, out that he and his heirs be bound to warrant, of the whole of his estate, of the loss which and if any heritage descend to the demand- his breach of warranty had caused to fall ant on the side of the alienor, then he upon them alone, and in this they were shall be bound for the value of the heri- finally successful. Todd v. Todd, 18 B. tage that is to him descended." A bus- Monr. 144 ; infra, Ch. XI. band seised in right of his wife joined with & On this subject, Blackstone says : her in the conveyance of her land by a " But though without assets the heir was 4 '■] OF COVENANTS FOR TITLE. [CHAP. I. § 6. The third statutory alteration came twelve years after, by the passage, in the year 1290, of the statute of quia emjrtores, 1 which, prohibiting subinfeudation by declaring that it should be lawful for every freeman to sell his lands at his own pleasure, and that the feoffee should hold the lands of the chief lord of the fee by such service and customs as his feoffor was bound to before, put an end to homage as an incident of tenure ; and this having been the consideration of implied warranty, it hence resulted that the word dedi, in a conveyance in fee, thenceforward implied a warranty during the life of the donor, and no longer. 2 As this statute thus took away that incident of tenure on which warranty depended, it was natural that express warranties, which, though sometimes employed before that time, were by no means generally used, should become almost universal. 3 § 7. But a few years before, in the year 1285, had been passed the celebrated statute de donis, which, for the next two hundred years, had a greater effect upon the law of warranty than has been generally considered, indirectly raising it to a height and giving to it an influence which probably it would never have not bound to insure the title of another, yet in case of lineal warranty the heir was perpetually barred from claiming the land himself, for if he could succeed in such claim he would then gain assets by descent (if he had them not before), and must ful- fill the warranty of his ancestor. " 2 Black. Corn. 302. To prevent misconstruction of this sentence, it must be borne in mind that Blackstone is here speaking of the common law, and in the first instance given is evidently referring to the case of an eviction of the feoffee by paramount title. The latter example is, of course, a plain case of rebutter, though the meaning would have been clearer if the word " lin- eal " had been omitted, as at the time of which he was writing there was but one species of warranty, — collateral warranty being then unknown. The great com- mentator is less clear upon this subject than upon most others. i 18 Edw. I. c. 1. 2 If, however, the conveyance left any reversion in the donor, the implied war- ranty still subsisted, since the donee still held of the donor as before the statute, and consequently the warranty bound not only the donor, but also his heirs, and therefore, "if a man make a gift in tail, or .a lease for life of land by deed, or with- out deed, reserving a rent, or of a rent service by deed, this is a warranty in law, and the donee or lessee being impleaded, shall vouch and recover in value " (Co. Litt. 384 b ; Fitzh. Nat. Brev. 134) ; and the burden of this warranty bound the heirs of the grantor and the assignees of the reversion, and its benefit enured to the assignees of the grantee. 3 The form of which, as given by Brac- ton, was, " Et ego et haeredes mei tcarranti- zabimus tali et hacredibus suis tantum vel tali ct hacredibus et assignatis et hacredibus assignatorum, vel assignatis assign et eorum haeredibus et acquictabiinus ct defendemus eos tof.mn terrain Warn cum pertinentiis, contra omncs gentes" (Co. Litt. 383 b) ; and, as will be hereafter seen, this exact form is, with the addition of words of covenant, the form of the Ameri- can covenant of warranty at the present day. § 8.] WARRANTY AND THE INTRODUCTION [CHAP. I. otherwise attained. Reciting that " when lands had been given to a man and his heirs begotten, upon condition that if he should die without such heirs it should revert to the giver or his heir, and that, after issue born, such feoffees had theretofore had power to alienate the lands so given and to disinherit their issue con- trary to the minds of the givers, and contrary to the form ex- pressed in the gift," it was declared " that the will of the giver according to the form in the deed of gift manifestly expressed shall be from henceforth observed, so that they to whom the land was given under such condition shall have no power to alien the lands so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert to the giver or his heirs." 1 And hence arose those estates known thence- forward and at this day as estates tail. The effect of this statute, by removing the estates of the greater lords beyond the penalties of forfeiture, and beyond liability for debts and incumbrances, swelled them to a height and gave them an immunity which was as hateful to the crown as it was to the trading and industrious classes. Nor was it less distasteful to the younger sons, who, in consequence of the inalienable nature of the estates thus created, were compulsorily without provision from their fathers, the tenants in tail, and it is common history that in every successive Par- liament from Edward the First to Edward the Fourth, — a period covering eight reigns, and nearly two hundred years, — bills, " which," says Coke, " I have seen," 2 were introduced to repeal the statute de donis, and were invariably rejected. § 8. But although there may have been cases in which tenants in tail were well satisfied that their estates should be inalienable, there were others who desired to part with them, and the question soon arose, how could this be done ; and the judges, being the nominees of the crown, were willing enough to lend themselves to expedients. An analogy to the statute of Gloucester was soon found, for although the statute de donis had expressly said that the tenant in tail should "have no power to alien the lands so given," it came to be held, upon what they called "the equity of the statute of Gloucester," that a warranty of tenant in tail, with assets in fee simple descending upon the issue in tail, barred the 1 13 Edw. I. c. 1. interesting account of this subject is 2 Mildmay's case, 6 Hep. 40, where an given. 6 § 8.] OF COVENANTS FOR TITLE. [CHAP. I. latter, and of course passed a good title, 1 for it was considered that, although the statute had forbidden the alienation of the tenant, it had not taken away the force of the warranty. 2 But it was not every tenant in tail who had another estate in fee simple, or, if he had, might die seised of it, and this risk the purchaser was obliged to run, for if no assets should descend to the issue in tail he might be evicted by the latter. In every case, therefore, (and there must have been many,) in which the tenant in tail had no other estate than the one warranted, the warranty was powerless to help him. But the statute of Gloucester, though it had said that a warranty from a father to a son, or as it came afterwards to be called, a lineal warranty, would not bar the son without assets, yet was silent as to a warranty descending from any collateral ancestor, and therefore a warranty of a collateral ancestor, whose heir the issue in tail might be, descending upon the latter, would bind him without assets by force of the common law. Consequently, if a brother of the tenant in tail, who had nothing to say to it and who was collateral in respect of it, joined in this alienation with warranty and died without issue, so that the son of the tenant in tail became his heir, tins warranty bound, as at common law, the issue of the tenant in tail ; therefore, by getting a collateral relation whose heir the issue in tail was to be 1 "And by the equity of this statute, the purpose of rebutter, was perfectly in- the warranty of tenant in tail is no bar operative. The statutes have made no unless there be assets in fee simple de- alteration in these respects. The conse- scended." 2 Institutes, 293, implying, of quence is, that without assets the ances- course, conversely, that when there were tor's warranty never did and does not now such assets the warranty would bar (and bind the heir in any case, except where he see the cases cited by Coke in Mary Por- takes by purchase." The meaning of this tington's case, 10 Rep. 37 b, 38 ; Litt. is sufficiently obvious when considered in § 712 ; 2 Reeves's History, 200, 339). The connection with the former part of the word " analogy " should rather have been same note. When the ancestor was seised used than "equity," for the statute, being in fee and conveyed with warranty, the in derogation of the common law, should, latter was useless (or, to speak more cor- according to the general rules of interpre- rectly, superfluous) to rebut an heir who tation, have been construed strictly. took by descent, for the conveyance was, 2 2 Reeves's History, 340. Mr. Butler for that purpose, as effectual as the war- says, in his note to Co. Litt. 373 b : "At ranty, and if the ancestor were seised for common law the operation of a warranty life or years, it would, in most cases, have to rebut the heir could hold in no case been a warranty commencing by disseisin, where the heir claimed the estate war- and therefore void ; but though useless as ranted from the ancestor by descent ; for a rebutter, a warranty bound the heir to at the common law, whenever the ancestor insure the title warranted, to the extent of had the inheritance, he could alien it from the assets descended ; though, of course, the issue ; therefore the warrauty, as to without assets, he was not so bound. § 9.] WARRANTY AND THE INTRODUCTION [CHAP. I. to concur in the alienation and bind himself and his heirs to war- ranty, in particular cases the statute de donis was successfully evaded. 1 This is believed to be the true origin of collateral war- ranty, and to explain what is meant when it is spoken of as " a mode of common assurance." It is true that all this was not done without opposition, for about a century after the statute de donis had been passed we find a petition of the Commons complaining that the warranty of a col- lateral ancestor was a bar though nothing descended from the ancestor, " which is a great damage and disinherison of many," and it prayed that no such warranty thenceforward to be made should be a bar in any action unless tenements to the value had descended on the demandant from such ancestor, according as it had been ordained by the statute of Gloucester, 2 but the appli- cation was not successful, and collateral warranty continued as before. If the learning of collateral warranty has been called difficult and unsatisfactory, it is simply because the law of warranty, which in its origin partook of the simplicity of the early common law, came to be, at a time when the alienation of property was fet- tered by a statute whose repeal could not be effected, turned from the purpose of its introduction, — that of protection and defence, — and fashioned into a remedy to meet an entirely different purpose. § 9. But the time came when collateral warranty ceased to be used for the purpose of barring estates tail. Its use could never have been a universal one, for the obvious reason that it was not every tenant in tail who had collateral relations who could or would be used for that purpose, and the need of a more effective 1 Lift. § 709. The reason given by man is presumed to do anything against Coke why the warranty of the uncle, who nature." himself had nothing to do with the estate, 2 50 Edw. III. Parliament Polls, No. should bar the issue in tail, is that "the 68, Cotton's Ab. p. 126, 2 Reeves, 341 ; law presumeth that the uncle would not Coke thus refers to this : " It has been unnaturally disinherit his lawful heir, be- attempted in Parliament, that a statute ing of his own blood, of that right which might be made that no man should be the uncle never had, but came to the heir barred by a warranty collateral, but where by another meane, unless he would leave assets descended from the same ancestor, him greater advancement. And, in this but it never took effect, for that it should case, the law will admit no proof against weaken common assurances." Co. Litt. that which the law presumeth. And so it 373 b. is of all other collateral warranties, for no 8 §9-] OP COVENANTS FOR TITLE. [chap. I. mode of common assurance was sufficiently evident. It may be unnecessary here to inquire particularly whether common recov- eries were or were not used for this purpose before the decision in Taltarum's case * in the reign of Edward the Fourth. The theory of the validity of a common recovery to bar an estate tail depended in its origin on the law of warranty, for the tenant in tail, although judgment was recovered against him for the land, yet himself had judgment against a fictitious warrantor — or rather a real warrantor with fictitious means — to recover a recompense in lands of equal value, which, assuming their ex- istence to be real, would go to the tenant in tail and his issue, in lieu of those recovered from him. 2 Such was the decision, or rather the dictum, in Taltarum's case, 3 and from that time at 1 Year Book 12 Edw. IV. 19, a. d. 1473, translated in Tudor's Lead. Cas. Real Prop. (3d ed.) 695 ; and see Mr. Tu- dor's notes. 2 That great lawyer, Lord Holt, said, in 1701 (Anon., 12 Modern,513) : "The true reason of collateral warranty was the secu- rity of purchasers and for their encourage- ment, as also for the establishing and set- tling the estates of such as are in by title or descent cast, and this was the only se- curity such persons could have at common law. And because the estates of such per- sons as are in by title are much favored in law, these covenants that were for strength- ening of them were favored likewise." And he is reported to have added, "And in those days there was no need of a lineal war- ranty ; but, however, the force of that is taken away by the statute de donis, and common recovery is not upon the supposi- tion of recompense in value, and never was within the statute, but always as much out of it as if it were so mentioned in ex- press words." This sentence has gone through all the editions of Modern Re- ports, has been frequently quoted, and been passed sub silentio, even by very learned writers (see Butler's note, Co. Litt. 373 b). But, as thus reported, it is both contrary to the law, and in a measure insensible ; for, first, the " recovery in value " was of the very essence of a com- mon recovery, as is everywhere shown, from the opinion of Littleton, J., and Brian, C. J., in Taltarum's case, down (see Co. Litt. 372 b, &c. ; Fearne's Posthumous Works, 449, &c. ) ; and secondly, no one ever supposed that the statute de donis, in its origin, ever had anything to do with common recoveries. It was, therefore, suggested by Mr. A. T. Freedley (to whose assistance I was much indebted in the preparation of the fourth edition), that the words "common recovery " had been incor- rectly copied instead of "collateral war- ranty," which, truly, was "not upon the supposition of recompense in value, and never was within the statute, but always as much out of it as if it were so men- tioned in express words ; " as must clearly appear from consideration of the opinion in Bole v, Horton, Vaughan, 375. 3 Notwithstanding it has often been said in a general way that common recov- eries were invented to bar estates tail, or were first applied to that purpose from the decision in Taltarum's case, yet the first of these suggestions is clearly wrong, and the second seems almost equally so. There is every reason to believe, and little reason to doubt, not only that the device of common recoveries was applied to bar estates tail long before Taltarum's case, but that that decision, instead of inventing a new rem- edy, was merely made for the purpose of confirming what had been more than once done before. The device itself was con- fessedly of ancient origin. So early as the statute of Gloucester, it was (c. 11) ex- pressly forbidden to a landlord as against his tenant ; and in the statute of Westmin- 9 §10.] WARRANTY AND THE INTRODUCTION [CHAP. I. least this certain, universal, and effective device, thus judicially recognized, became frequent — before long, it was openly ac- knowledged that the warranty and recompense in value were mere fictions — and common recoveries assumed the position which in England they have held until less than sixty years ago, and which in some of our States they hold to this day, among the common assurances of the law. 1 § 10. But nearly two centuries elapsed between the statute de donis and the decision in Taltarum's case, and it is easy to im- agine that the doctrine of warranty, thus perverted from its original and simple purpose, should in the course of these years become involved in subtlety, for the rules which were held to ap- ply in a fictitious case or were applied for a particular purpose must of course logically be held to apply in all cases. 2 And as to its illegitimate offspring, collateral warranty, which was a thing unknown in the earlier days of the common law, it was, said Chief ster the Second, it was expressly forbidden to religious men thus to evade the statutes of mortmain. And Coke, in Mary Porting- ton's case, 10 Rep. 37 b, says expressly, " The opinion that a recovery against a tenant in tail with voucher would bar an estate tail and was not restrained by the statute de donis, was not newly invented in 12 Edw. IV., but often affirmed for law by the most knowing of the law that ever were." When, then, it is said that Talta- rum's case was the origin of this practice, it is more correct to say (and this is no doubt what many learned authors mean) that that decision first judicially sanc- tioned it. See Pigot on Recoveries, 9 ; Reeves's History of the Common Law (ed. 1869), c. 21 ; and in particular Finlason's Notes to Reeves, pp. 75, 552, &c, a book in which the annotator persists in trying to correct his author, and in which a proper index is sadly deficient. Taltarum's case was, as Pigot says, "cunningly managed," for it seemed to be an adverse judgment, being against the re- covery, and it was only from the argument of the judges that it appeared that they all thought that if, in the case at bar, the tenant had been actually seised (which he was not), the recompense would have de- scended, and the issue in tail been barred. "Such a piece of solemn juggling," says a 10 very able modern writer, " could not long have held its ground, had it not been sup- ported by a substantial benefit to the com- munity." Williams on Real Property, 44. And the case itself was but part of what was even then beginning to be an old story, — the contest between the crown and its nominees the judges on the one side, and the lords on the other, and not the less a contest between the commons and the lords. 1 So that it has long been settled that the right to suffer a common recovery is a privilege insciMrably incident to an estate tail, and one which cannot be restrained by condition, limitation, custom, recog- nizance, statute, or covenant. See the argument of Mr. Knowles in Taylor v. Horde, 1 Burrow, 84 ; Dewitt v. Eldred, 4 Watts &Serg. (Pa.) 421. 2 And hence the doctrine that a war- ranty commencing by disseisin was void. Co. Litt. 366 b. Otherwise, a tenant for years or at will might have passed a good title by force of the warranty to the exclu- sion of the reversioner, and the rule was express that a conveyance for valuable con- sideration, in the form of a feoffment with warranty, was, before the statute of uses, inoperative unless livery of seisin were made. § 10.] OF COVENANTS FOR TITLE. [CHAP. I. Justice Vaughan, " an extraction out of men's brains and specu- lations many scores of years after the statute de donis;" 1 and lie continues, " If Littleton had taken the plain way of resolving his many excellent cases in his chapter of warranty, by saying the warranty of the ancestor does not bind in this case because it is restrained by the statute of Gloucester or the statute de donis, and it doth bind, in this case as at the common law because not restrained by either statute, his doctrine of warranties had been more clear and satisfactory than it now is, being intricated under the terms of lineal and collateral; for that in truth is the genuine resolution of most if not all his cases; for no man's warranty doth bind, or not, directly and a priori because it is lineal or col- lateral, for no statute restrains any warranty under those terms from binding, nor no law institutes any warranty under those terms." The next statute which restrained the operation of warranty was that of 11 Hen. VII. c. 20, passed in 1494, which declared that certain alienations made by the wife of the lands of her deceased husband should be void ; that is to say, that all war- ranties by a tenant in dower, or for term of life, or in tail, jointly with her husband, or only to herself, or to her use in his lands, made by her after the husband's death, should be void unless with the consent of those entitled after his death, and such conveyance, moreover, worked a forfeiture of her estate. The next and last restraining statute was that of 4 & 5 Anne, c. 16, which provided that all warranties made by any tenant for life of any lands descending or coming to any person in reversion or remainder should be void, and all collateral warranties by any ancestor who had no estate of inheritance in the same should be void against the heir. 2 And finally, by a statute passed in 1834, based upon the recommendation and report of the Real Property Commissioners, warranties, with all other real actions, were abolished. 3 1 Vaughan's Rep. 375 b. It will be "collateral warranty" were used. As will remembered that Littleton wrote about the be hereafter seen, this section has been re- year 1475, when the doctrine of collateral enacted more or less literally in many of warranty was at its height. the United States. 2 § 21. This was the familiar statute 3 3 & 4 Will. IV. c. 27, § 39; id. c. 74, "For the amendment of the law and the §14. The evidence taken before this corn- better advancement of justice," a. d. 1705. mission is interesting and instructive. It was the first statute in which the words 11 § 11.] WARRANTY AND THE INTRODUCTION [CHAP. I. § 11. But although the organic doctrines of the law of warranty are important to be known, it is hardly so with respect to the remedies by which they were enforced, and only a brief reference to them will be made. It is familiar that these remedies were two : by writ of voucher to warranty, and by writ of ivarrantia chartce. There were certain real actions 1 in which if one who had received a warranty were impleaded he had the right by a summoneas ad warrant izcni- dum to bring in his warrantor as the real party to the action, and thus make him defend the title, and the process itself was called " voucher." The effect of this was that the same judgment which deprived the warrantee of that which had been conveyed to him was also a judgment in his favor against the warrantor, giving him a right to other lands of equal value to those which had been lost. But there were other real actions in which the warrantee had not the right thus to vouch, 2 and in these cases he brought his writ of ivarrantia chartce whereby in effect the same end was reached. 3 Nor in the case when warrantia chartce was the proper remedy was it necessary that the warrantee should have been impleaded. The action could be, and often was, brought quia timet implacitari, as a mere precautionary measure, as soon as there was reason to fear the loss of the land through a defect of title ; 4 and the judgment then obtained, called a judgment pro 1 Such as rnort d 'ancestor, writ of right Father, if he will warrant it to him, or to of an advowson, writ of admeasurement of shew wherefore he ought not to warrant it pasture, writ in right of ward, &c. Viner's to him; and have the Summoners and this Abr. Voucher, Q. And the summons al- writ. Witness, Ranulph," &c. Granville wavs mentioned the form of action in which (Beames's ed.), 75. Ranulph de Gran- the defendant was impleaded. ville, the reputed author of this treatise, 2 Such as a writ of dower, a writ of was, it will be remembered, Chief Justice assize, a writ of entry in the nature of an in Henry Il.'a reign, and the writs ran of assize, a quare impedit, a scire facias, or a course in his name. The publication of the fine, &e. ; and when one might vouch and Fines by the Record Commission, in 1835, did not, he was not allowed a warrantia has cast some additional doubt as to this cluirtK; Viner, supra; Fitzh. Nat. Brev. authorship; see Preface to Book of Fines, 314, 412 ; and see also both as to voucher p. 16. and warrantia chartce, 1 Reeves's History, 4 " And a man may sue forth this writ 422, 430. of warrantia chartaz before he be impleaded 3 The form of this writ was thus: — in any action, but yet the writ doth sup- "The King to the Sheriff, Health, pose that he is impleaded; and if the de- Summon, by good Summoners, W., so fendant appear and say that he is not that he be before me or my Justices, there impleaded, by that plea he confesseth the on a certain day to warrant to R. one warranty, and the plaintiff shall have Hyde of Land, in such a Vill, which he judgment to recover his warranty, so as claims as his Gift, or the Gift of M. his if the defendant be after impleaded and 12 §11.] OF COVENANTS FOR TITLE. [CHAP. I. loco et tempore, bound all the lands of the warrantor, 1 and when the loss actually did occur, then by means of a scire facias on this judgment the warrantee was entitled to have execution of all the lands and tenements which the defendant had at the time of the judgment, 2 provided however that, in case of a suit brought after the judgment pro loco et tempore, the warrantee had, as by analogy to voucher, notified the warrantor and requested him to defend. 3 vouch him to warranty, and he entereth into the warranty and pleadeth and loseth, and that the defendant recover in value, the defendant shall have in value of the lands against the vouchee which he had at the time of the purchase of his warran~ tia chartce; and therefore it is good pol- icy to bring his warrantia chartce against him before he be sued, to bind the lands of the vouchee which he had at that time." Year Book 24 Edw. III. 35; Fitzh. Nat. Brev. 134. In the first sentence of this passage the defendant first referred to means the warrantor, that is, the defend- ant in the warrantia chartce. Afterwards, it means the warrantee, the defendant in the action brought to recover the land. The judgment pro loco et tempore was at first, and until execution after scire facias, no more than a lien on the warrantor's land. 1 The following case from 2 Hen. IV. pi. 14, shows that a mere warranty did not bind the other lands of the warrantor, but that a judgment pro loco et tempore did: "A question was moved between the Justices of the Common Bench, of what effect judgment in warrantia chartoz pro loco et tempore is, and it was moved that a warranty was no more than a covenant, and that by such covenant a man should not bind land to be bound in value after- wards in whosesoever hands they might come by purchase or otherwise, without judgment in any action, for this would be too great a mischief, . . . but otherwise it seems by the special judgment above." The case is not correctly copied into Brooke, Abridg. Warn Ch. pi. 8, and the translation in Viner, Warr. Ch. M. pi. 3, follows tha inaccuracy. ' ' And hereby you may see, good reader," says Coke in 10 Rep. 41, as to Scholastica's case, "how dangerous it is to ground an opinion upon any abridgment, as in another place I have observed." As to the Year Books, it was said by the editor of the Leading Cases on Real Property : "In any other country but this, a series of Reports, spread- ing over nearly three centuries, from the beginning of the reign of Edward I. to nearly the end of the reign of Henry VIII., and of so great interest as illustrating the history of the law and of the country gener- ally, would not have remained accessible only to a few, in black letter and Nor- man French." (Note to Taltarum's case.) Since then, seven volumes of the trans- lated Year Books have been published in England, extending, however, as yet, only through the reign of Edward I., and the 11th, 12th, and 13th years of Edward III. The last of these volumes was published in 1885. While it is quite true that with- out the Year Books an approach to accu- racy as to many doctrines is difficult, yet the manner in which the cases are re- ported leaves much to be desired ; see Hare on Contracts, 137, 138. Something of this will be found infra, Ch. X. 2 Viner, Warr. Ch. M. 4 ; Roll v. Osborn, Hobart, 25. 8 Per Markham, C. J., in Year Book 8 Edw. IV. 11. " If I recover from my warrantor a judgment pro loco et tempore, and then am impleaded in an action in which I cannot vouch, as, for example, an assize or scire facias, it is proper for me to request him from whom I have thus re- covered to put in a plea for me, and thus give him notice of the action that is pend- ing, as otherwise I shall not be allowed to have execution on my judgment." 13 § 12.] WARRANTY AND THE INTRODUCTION [CHAP. I. Beyond this merest outline of the process and pleadings ap- plicable to warranty it is not necessary to go, nor to notice particularly the train of writs and returns, of false vouchers and foreign vouchers, essoins and casting essoins, the magnum cape ad valentiam, the parvum cape ad valentiam, the defaults and continuances, which clustered round these remedies. 1 Nor would they have been here referred to, save that, as will be hereafter seen, an analogy to some of them is not unfrequently, in some of our States, sought at the present day in actions on the covenants for title. § 12. There remains to be noticed the " recompense in value," as it was termed, for a loss of the land warranted. As to real actions in general, it is familiar that by the common law no damages were recoverable. 2 But as early as the statute of Merton, 3 Parliament began to allow damages in real actions, and this inno- vation was materially increased by the provision of the statutes of Marlbridge and of Gloucester. 4 Unless, however, in cases excepted by statute, the common-law rule remained. 5 But the remedy upon a warranty was not strictly a real action. It is spoken of as a mixed action wherein one recovered land and damages; 6 that is to say, land so far forth as the warrantor could render another feud of equal value, and damages whereby 1 The learning as to this subject may reason is questioned in Booth on Real be found in Viner, tit. Voucher & Warr. Actions, 75 : "For in some mixed actions Char., and the notes to Careswell v. at common law, the demandant never Vaughan, 2 Saunders, 32 ; Fitzh. Nat. counted to damages, as in assize, writs of Brev. 314 ; Roll v. Osborn, Hobart, 25 ; entry in nature of assize, and in attaint, Booth on Real Actions, 242; and 1 Reeves's and yet damages were recoverable in those History, 422, 430; 2 id. 35. The form of actions at common law." a cape will be found in 6 Bracton (Twiss), 8 20 Hen. III. c. 1, A. d. 1235. 51. Booth, whose first edition was pub- * 52 Hen. III. c. 16, A. D. 1267, and 6 lished in 1701, says : "This action (war- Edw. I. c. 1, A. D. 1278 ; and see the read- rantia chartai) is brought rarely, though ing of Coke on these statutes in 2 Insti- sometimes at this day it may be, for I re- tutes. member one about twenty-two years ago 6 Until the somewhat recent act of 3 & before the justices at Chester. I conceive 4 Will. IV. already referred to, which "at it was about 15 or 16 Car. II. Another one blow swept away sixty-two real actions there is, the last session at Chester Assizes, with barbarous names." Mayne on Dam- April, 10 Will. III." ages, 2. 2 Because, as has been said, "the court 6 Fitzh. Nat. Brev. 135, H. The an- could not give the demandant that which cient action of waste, and the action upon he demanded not, and the demandant in a warranty or other engagement binding real actions demanded no damages, neither land as against the heir, were the only ac- by writ nor count." 2 Inst. 286. This tions properly designable as mixed. 14 §12.] OP COVENANTS FOR TITLE. [CHAP. I. to make up the deficiency. 1 The measure of value, however, was always that of the land at the time of the warranty made. 2 The remedy upon warranty savored, however, so much of the realty that in the earlier days of its history it could be employed only when the estate which it accompanied was that of freehold, and only when the paramount claim was that of freehold. Yet as time wore on, the common law underwent some change as to this. In the reign of Henry the Sixth we find a case in which a warranty contained in a lease for years was allowed to be used as a covenant. 3 And in a remarkable case in the time of James the First, when the modern system of law was fully getting into use, we find that a warranty contained in a conveyance of a free- hold was allowed to be used as a covenant, when the adverse claim was under a term for years. 4 i Viner, Abr. Warr. Ch. M. 2 See infra, Ch. IX., on the Measure of Damages. 8 Year Book 32 Hen. VI. 32, pi. 27, A. d. 1453 (incorrectly copied in Brooke, Cov. pi. 38) : " Nota, per Littleton, that if I lease land to another for a term of years by a deed indented, and I oust him, he shall have against me a writ of covenant ; . . . but if he should be ousted by a stranger, he shall have a writ of ejcdione firmce against the stranger. . . . But if I am bound to warranty by the deed and the stranger ousts him by title, he shall have an action of covenant against me, or against my heir if he has [assets] by descent." But it was a covenant real, as distinguished from a mere personal cove- nant. 4 Pincombe v. Rudge, A. D. 1609 ; Ho- bart, 3 g ; Noy, 131 ; Yelverton, 139, af- firmed in Exchequer Chamber, 1 Rolle, 25. The defendant had granted a free- hold with warranty, having previously de- mised the premises for a term of years. The lessee entered upon the grantees, who brought an action of covenant on the war- ranty, and demanded damages from the warrantor, who pleaded a warrantia chartce brought against him by them which was still undetermined. On demurrer to this plea, the question arose whether upon the clause of warranty annexed to a freehold an action of covenant would lie, which was decided affirmatively, because although the warranty was annexed to the freehold, yet the breach was not of a freehold, but of a chattel (viz. the lease for yeai-s, which had been the first estate created), for which there could be neither a voucher, rebutter, nor warrantia chartx. See this case more particularly noticed, infra, Ch. VIII. This case must not be understood, as some have thought, as deciding that the remedy on a warranty was optionally covenant, but it decided that when warranty failed as a covenant real, the courts would mould it into a covenant personal. In other cases, if used at all, the use was the ancient one. Judge Holmes correctly says : "Glanvill's predecessors probably regarded warranty as an obligation incident to a conveyance, rather than as a contract. But when it became usual to insert the undertaking to warrant in a deed or charter of feoffment, it lost something of its former isolation as a duty standing by itself, and ad- mitted of being generalized. It was a promise by deed, and a promise by deed was a covenant. This was a covenant having peculiar consequences attached to it, no doubt. It differed also in the scope of its obligation from some other cove- nants, as will be shown hereafter. But still it was a covenant, and could some- times be sued on as such," referring to Pincombe v. Rudge. Holmes, "The Com- mon Law," 377. 15 § 13.] WARRANTY AND THE INTRODUCTION [CHAP. I. § 13. Such is an outline of the law of warranty before it was superseded by the covenants for title. When exactly, and how, these covenants first crept into use cannot now be precisely deter- mined. But it may not be impossible at least to conjecture their origin. So long as livery of seisin was necessary to the validity of the transfer of land, so long did warranty, which was essen- tially a covenant real, accompany the deed of feoffment. A personal covenant would have been an inappropriate element of such a form of conveyance. But the passage of the statute of Uses, towards the latter part of the reign of Henry the Eighth, introduced the conveyances familiar at the present day, which, taking their effect under that statute, passed the freehold without livery of seisin, and in a deed of bargain and sale or lease and release, a warranty, in its proper sense, would have been just as inappropriate as would have been a personal covenant in a deed of feoffment, while the covenant was eminently fitting. And hence it may be that we find, all through the reports of the time of Elizabeth, cases in which some of the covenants for title — generally, a covenant for seisin or of good right to convey — are used in conveyances taking effect by virtue of the statute of Uses. They are, however, generally couched in the briefest terms, and unaccompanied by other covenants. And by common consent it is considered that it was not until the time of the restoration of Charles the Second that the modern covenants for title were, in their present form, introduced into general practice, " being advised," we are told, by " the father of modern convey- ancing," 1 Sir Orlando Bridgman, "during the time of his practice, when the unhappy circumstances in which the kingdom stood afforded no other means of safety to persons of his loyalty and constancy than a strict retirement from public affairs." 2 1 Preface to Bridgman's Precedents of of the decisions, in the previous century, Conveyancing. of Chudleigh's case and Archer's case, 1 2 See an interesting article by Mr. Coke, 66 b, 120. It is rather singular that Joshua Williams, "On the Origin of the Lord Campbell says nothing of Bridgman's Present Mode of Family Settlements of labors in this field ; we hear only that he Landed Property," in 1 Juridical Society was eminent as a common-law judge, Papers, 53, where he says that it was though narrow-minded, and that accord- Bridgman who also introduced the prac- ing to the judgment of some of his con- tice of limitations to trustees to preserve temporaries he made a bad chancellor. 3 contingent remainders, which was done to Campbell's Lives of the Chancellors, 234. provide against forfeitures in the time of See, however, the Preface to Bridgman's Cromwell, and to guard against the eirect Judgments, and Foss's Judges of England, 16 § 13.] OP COVENANTS FOR TITLE. [CHAP. I. These covenants were five in number : first, that the grantor was seised of the estate which he purported to convey, called the covenant for seisin ; secondly, that he had a good right to convey it ; thirdly, that the grantor should quietly possess and enjoy the premises without interruption, called the covenant for quiet enjoy- ment ; fourthly, that such should be the case free and clear from all incumbrances, called the covenant against incumbrances ; and fifthly, that such other assurances should be thereafter executed as might be necessary to perfect or confirm the title, called the covenant for further assurance. There is no evidence that the covenant in such general use in this country, called " the cove- nant of warranty," ever had a place in English conveyancing. 1 If the form in which these covenants for title was originally expressed was short and simple, they soon lost this virtue ; and ns remuneration to the draftsman came to depend upon the length of the instrument, these afforded ample scope for redundancy of words, and for nearly two hundred years " the luxuriant growth to which their verbiage had attained " was the subject of great and just complaint; 2 but recently reform has reached the cove- nants for title, and in the most modern conveyances and books of precedents they are expressed with reasonable brevity. In the 123, &c. The subject of the introduction of King, Cro. Jac. 281, on the covenant the covenants by Bridgman is noticed in against incumbrances and for further as- Doe v. Dowdall, 3 Houst. (Del.) 376, surance ; in Boulney v. Curteys, id. 251, where it is suggested that they were un- on the covenant for further assurance ; known to Coke, who died in 1634, while in Grenelefe v. W , Dyer, 42 a, on the Bridgman came to the bar in 1632 : "So covenant for quiet enjoyment in the con- that it is quite clear that covenants for veyance of a freehold ; in Woodruff v. title, invented at a time of insecurity and Greenwood, Cro. Eliz. 518, Corus v. , revolutionary change, came into general id. 544, Noke v. Awder, id. 373, 436, use in the mother country in the latter Penning v. Plat, Cro. Jac. 383, and half of the seventeenth century." Mountford and Catesby's case, Dyer, 328, But while it is quite true that Bridg- on the covenant for quiet enjoyment in a man first introduced these covenants in lease. And with all of these cases Coke was elaborate form, it is far from being so that of course familiar ; Bradshaw's case he re- they were unknown to Coke, for they were ported himself, and Noke v. Awder was the in frequent use both during and before his one in which, argued by him when Attor- time, though in somewhat simple and con- ney-General, his professional triumph upon cise form, and will be found in the reports, a question of pleading disturbed the courts from those of Dyer, which commence at 4 of last resort upon both sides of the Atlan- Hen. VIII. (A. d. 1512), down. Thus, in tic for more than a century. See infra, Gray v. Briscoe, Noy, 142, and Muscot v. Ch. X. Ballet, Cro. Jac. 369, the action was on * See infra, Ch. VIII. the covenant for seisin; in Bradshaw's 2 Williams on Real Property (12th ed.), case, 9 Coke, 60 b, (a leading one,) on the p. 447. covenant of right to convey ; in Briscoe v. 2 17 § 14.] WARRANTY AND THE INTRODUCTION [CHAP. I. present reign, two attempts have been made by statute to give to short forms all the effect of the covenants as usually expressed at length ; the first was unsuccessful ; 1 the second, though the statute is of very recent date, 2 seems to have met with favor. § 14. The principal emigration to the American colonies took place during the latter half of the seventeenth century, and the settlers brought from their mother country so much of its laws and the mode of their administration as was deemed suitable to their new home. The more careful the study, not only of the early colonial conveyances, the opinions of counsel, their common- place-books, etc., but also and especially of the colonial legisla- tion, the more satisfactory is the proof that those of the settlers who were lawyers added to great knowledge of their profession a comprehensive view of jurisprudence as a science. The skill with which so much of the common law — the growth of centu- ries — as was adapted to new institutions was retained or modi- fied was not more remarkable than some of the improvements of that law introduced by legislation, which was, as to some of these, a century and a half in advance of the mother country. Unfortunately, history has left little record of the early colonial lawyers, but the work they did tells its own story. 3 1 8 & 9 Vict. c. 119, one of the statutes till almost within this generation that known as "Lord Brougham's acts." valuable parts of its legal literature have 2 Act of 44 & 45 Vict. c. 41, the "Con- been produced in intelligible form and veyancing and Law of Property Act," language, so but few of our States 1881 ; see infra, Ch. II. have seen fit to publish completely their 3 The subject here incidentally referred early colonial statutes and records. The to is one of important interest. As to part work has been partially done in Pennsyl- of it, it is of almost equal obscurity, owing vania, and more thoroughly in Massachu- to the present comparative lack of mate- setts. By those we have, we see how from rial for its illustration. Were such accessi- the first our colonists introduced changes ble, — for much of it must be in existence, and reforms long in advance of the mother — nothing would be more broadly useful country. Among these are found the reg- than to contrast the growth of jurispru- istration of deeds and mortgages (to this dence, not only between the mother coun- day practically unknown in England), the try and her colonies, but between the foreclosure of mortgages, the passing the colonies themselves. It would then be estate of a married woman by acknowledg- seen how in some cases one colony fol- ment instead of by fine, the barring of lowed another in its alterations of the law entails, the doctrine of set-off (the first which each had brought over, and how in statute in the English language as to it others it was changed in one to suit its being enacted in one of the colonies), the needs, all unconscious of similar changes enlargement of the remedy by replevin, in another. Unhappily, this must largely the administration of the estates of dece- be the History of the Future, for the ma- dents and making their land assets for the teriala have as yet been sparingly pub- payment of their debts, — these and many lished ; for while in England it was not other subjects were treated with a breadth 18 § 15.] OF COVENANTS FOR TITLE. [(HAP. I. Even if at this time warranty had not been superseded in England, its application would have been found impossible in a country in which primogeniture was not a part of the law of descent. For warranty descended only upon the heir at common law, — it operated as a rebutter on him alone, — it bound him alone to render other lands of equal value. In those parts of England where the peculiar tenures of gavelkind and borough- English prevailed, the hardship was extreme. The heir at com- mon law was still vouched to warranty, though the inheritance was in the one case divided among his brothers, and in the other enjoyed exclusively by the youngest of them. 1 § 15. In the earliest conveyances which remain of record in our colonial times are to be found some or all of the covenants for title, more or less simply or elaborately set forth, together with, in general, a clause of warranty, literally translated — some- times with and sometimes without the addition of words of cove- nant — from the warranty in use during feudal tenure. In this form it has been preserved to the present day, and although there is no link between the warranty of feudal times and the Ameri- can covenant of warranty, yet in many of the United States the latter has at times been clad with the mantle of the former, and considered to possess a certain potency denied to the other cove- nants for title, and which, indeed, did not belong to the ancient warranty itself. 2 and practical knowledge unknown or ig- as long as they could, and when repealed nored in the mother country for gen- in Council would pass others more or erations later. Nor only this. These less exactly like them, would again retain remedial statutes, which, under the terms these, which being repealed were again of the charters, were obliged to be sent enacted here ; and thus commenced the within a certain number of years to Eng- train of grievances which finally cost the land for approval, were constantly repealed crown its colonies. in the Privy Council without regard to 1 Brooke's Abr. tit. Garranties, pi. 11 ; the needs which produced them or the Assize, pi. 22 ; Litt. §§ 735, 736 ; Robin- dissimilarity between the countries ; and son on Gavelkind, 127. this was so persistent that soon the colo- 2 Namely, its effect by way of estoppel nists were driven to retain here their laws or rebutter ; infra, Ch. XI. 19 16.] THE USUAL COVENANTS. [CHAP. II. CHAPTER II. THE " USUAL COVENANTS," AND WHAT COVENANTS THE PURCHASER HAS A RIGHT TO EXPECT. § 16. The disparity in number between the English and the American cases on the subject of covenants for title — the latter being so much more numerous than the former — is as obvious as is the reason for it. In the earlier days of warranty, and for centuries after, such a thing as an examination of the title was unknown, and the vassal relied on the warranty of his lord for his protection. Hence the Year Books and the early treatises swarm with the law of warranty ; and when the illegitimate doc- trine (for so it may fairly be termed) of collateral warranty was introduced, the cases increased in number and intricacy. 1 But toward the close of the seventeenth century, with the compara- tive cessation of civil warfare and the steady improvement and increase in value of real estate, the law of vendor and purchaser began to take substantial form ; and as land became more the subject of transfer, its muniments of title were more readily yielded to the examination of the purchaser, and the latter came to depend rather upon that examination of the title than upon the covenants which were to assure it. This, of course, lessened their practical use for the purpose for which the old warranty was at first employed, viz. as a means of redress against loss of the land ; and as for its later use, the covenants for title were never suffered in England, as has been to some extent the case in America, to be applied to the purposes for which collateral warranty was used. 2 Hence, the more careful the examination of the title, the less the use of the covenants, until, as was said by an eminent writer, " Purchasers, in general, attach more value to covenants for title than they deserve ; " 3 and hence, of course, the small number of cases to be found in the English reports. 4 1 See supra, § 7 et seq. 8 Preston on Abstracts of Title, 57. 2 That is to say, by way of estoppel ; 4 As an illustration of this, it is sel- see infra, Ch. XI. dom, on either side of the Atlantic, that a 20 §18-] THE USUAL COVENANTS. [CHAP. II. § 17. On this side of the Atlantic it is different. Apart from obvious reasons springing from the settlement of a new country, the English system of conveyancing in its present advanced state is by no means generally adopted ; 1 land changes hands more freely and with less examination of the title, and sometimes, as for example when taken in payment of a debt, with no examina- tion at all ; and then, to some extent, an effect has here been given to the covenants, or some of them, in their operation by way of estoppel which is altogether denied to them in England. 2 From all these causes, the American reports are proportionally as full of cases upon the subject of covenants for title as the Year Books were with cases upon the subject of warranty. § 18. But even in England, however rigid the examination of the title and however willing courts might be to carry out the doctrine which, while the contract is executory, protects the pur- chaser's right to a title clear of defects and incumbrances, yet while so doing they have also continued to recognize and enforce his right to covenants for the title. 3 As to this, therefore, — the tenant, in the case of what are called " common leases " (i. e. where the term is a short one), examines his landlord's ti- tle ; and for many years past, and at this day, of the small number of cases on cove- nants for title to be found in the English reports, by far the greater number — in- deed nearly all — are cases on covenants contained in leases. 1 Thus even in large cities, where property is mora valuable and the exam- ination of titles a matter of course, it is rare to find in an abstract of title those accompanying affidavits to substantiate or- dinary recitals of pedigree, &c, which in England are almost universal. See Moore on Abstracts of Title, 105, n. ; Lee on Ab- stracts, 215 ; 2 Preston on Abstracts, 455 ; 3 id. 279; Dart on Vendors (5th ed.), 346. Sugden says, speaking as a matter of course, " So, certificates of marriages, births, and baptisms should be required to verify a pedigree, and certificates of burial to prove the death of parties, and the last receipt or other sufficient evidence of the payment of an annuity or jointure which has recently ceased by the death of the party entitled." Sugd. on Vend. (14th ed.), 415. But on this side of the Atlan- tic, statements of pedigree are only found by way of recital in the deed and are usu- ally unaccompanied by affidavit. Warvelle on Abstracts of Title (Chicago, 1883), p. 313, also p. 33, where the danger of taking title from alleged heirs is well stated. To this treatise, the first of its kind in Amer- ica, the student may profitably refer as showing the striking differences between the system of conveyancing on the differ- ent sides of the Atlantic. In its Preface, the author correctly says, "Several works [on Abstracts of Title] of more than ordi- nary merit have appeared in England, in which the subject, from an English stand- point, is very thoroughly and ably dis- cussed, but the irreconcilable differences in our laws and institutions have rendered them comparatively worthless to the Amer- ican practitioner, and they are rarely met with on this side of the water. The meth- ods of English conveyancers and solicitors, while admirably adapted to the exigencies of their own laws and customs and highly conducive to the end desired, are but ill suited to our wants, and furnish little as- sistance in tracing the devious courses of an American title." 2 See infra, Ch. XI. 3 "If," said Lord Eldon in Church r. Brown, 15 Ves. 263, " a man covenants 21 § 20.] THE USUAL COVENANTS. [CHAP. II. general and abstract right of the purchaser to receive covenants for title from his vendor, 1 — there is no difference in the law of the two countries. § 19. It is proposed, then, to consider, first, what are the usual covenants on both sides of the Atlantic, and secondly, the extent of those covenants relatively to the different classes of vendors. And first, what are " the usual covenants " ? The very use of the word " usual " excludes, of course, that which is universal, and it is only possible, therefore, to give a general idea of what is customary as to this. § 20. In England the modes of assurance in which covenants for title are contained are, for the most part, — 1. Sales, in the popular sense, that is, sales of an estate in fee simple ; 2. Settlements ; 3. Mortgages; 4. Assignments or transfers of leasehold interests ; 5. Common leases. to sell a fee-simple estate, free from all in- cumbrances, and saj'S no more, it is clear that covenant carries in grcmio, and in the bosom of it, the right to proper covenants. "Why ? Because that sort of engagement has in all times been carried into execu- tion in a form and mode which alter most materially, substantially, and importantly, the effect of the mere conveyance." David- son observes, " Although it seems to have been formerly held that the right to cove- nants for title was not implied by the mere agreement to sell, yet the contrary is now established by the practice of convey- ancers and the authority of the courts." 1 Dav. Conv. (3d ed.) 113. So on this side of the Atlantic, Story J., in Clarke v. Courtney, 5 Pet. (S. C. IJ. S.) 319, spoke of " the common course of conveyances in which covenants for title are usually in- serted," and this was indorsed in Le Roy v. Beard, 8 How. (S. C. U. S.) 467, the court saying, "The usages of this country are believed t<< be very uniform to insert cove- nants in drills. ... If in this power of attorney no expression had been employed beyond giving an authority to sell and convey this land, saving nothing more ex- tensive or more restrictive, there are cases which strongly sustain the doctrine that, " 22 from usage as well as otherwise, a war- ranty by the agent was proper, and would be binding on the principal." And the contract will not be satisfied by covenants from a third party ; they must be those of the vendor himself. Bigler v. Morgan, 77 N. Y. 312 ; Rudd v. Savelli, 44 Ark. 152. 1 "The covenants for title," says Dart, "are that part of the draft upon which disputes and questions of difficulty most frequently arise ; they are of considerable, although perhaps, to a purchaser, of rather over-estimated importance ; to the solici- tor they are important, inasmuch as he will be responsible to his client for- per- mitting him unknowingly to enter into improper covenants, or for not securing to him those to which he is entitled from the other partv." Dart on Vend. (5th ed. ) 543, citing Stannard v. Ullithorne, 10 Ping. 491, where the attorney was held liable, although the vendor was at the time aware of the fact in respect of which the liability on the covenant was incurred. The recent " Conveyancing and Law of Property Act, 1881," 44 & 45 Vict. c. 41, § 66, Law Rep. xvii. Stat. 110, protects solicitors employing the forms therein provided. § 20.] THE USUAL COVENANTS. [CHAP. II. And the covenants are different in each of these classes. 1. As to sales of an estate in fee simple. — To a layman it would seem plain that if one were to undertake to convey an estate in fee simple which he professed to hold in his own right and not fiduciarily, he must himself be seised of such an estate ; and yet until somewhat lately it was common conveyancing in England, for the purpose of saving the expense upon a resale of levying a fine whereby to bar the dower of the wife, to cause property, upon its purchase, to be conveyed to such uses as the purchaser should appoint, and in default of appointment to the use of the purchaser and his heirs. 1 And it is perhaps owing to this custom that the covenant for seisin has been, for nearly a century, generally omitted in England, and the covenant for good right to convey has been substituted. And although by an act of Parliament in the last reign - the estate of the wife is now passed, as with us, by a simple separate acknowledgment, yet it is usual, in modern conveyancing, to omit the covenant for seisin. 3 The usual covenants then in England, in the case of a sale, are those of good right to convey, for quiet enjoyment, against in- cumbrances, and for further assurance ; and they have been generally expressed as follows. 4 1 Here, of course, upon a resale, the trators covenant with the said (grantee) vendor conveyed in execution of the power, and his heirs and assigns that he the said which overrode the estate of the wife, (grantor) is now seised to him and his while if he died without having sold, the heirs of a good sure sole lawful absolute use became executed and the wife's dower and indefeasible estate of inheritance in attached. And although it was once held fee simple of and in the said messuage &c. (Goodill v. Brigham, 1 Bos. & Pull. 192) hereby released or otherwise assured or in- that a power was inconsistent with an tended so to be and every part and parcel estate in fee simple, the latter being of so of the same with the appurtenances with- liigh a nature as to merge and render void out any condition trust power of revoca- any power which might be intended to tion or of limitation to use or uses or any accompany it, and this was adopted by other power restraint cause matter or thing Sir William Grant, M. Pi., in Mauudrell whatsoever to alter change charge defeat v. Maundrell, yet the contrary has long revoke make void abridge lessen incumber been the law ; s. c. 10 Ves. 264, per Lord or determine the same estate or any part Eldon. or parcel thereof." Piatt on Covenants, 2 3 & 4 Will. IV. c. 74. Partly re- 306. This form is somewhat long, but so pealed and supplied by the "Conveyan- are all those given by Piatt. In the more cing Act, 1882," 45 & 46 Vict. c. 39, Law modern books no form of this covenant Rep. xviii. Stat. 138. is given. 3 When used, however, the covenant 4 In well-ordered conveyancing, the for seisin is said to be thus expressed : covenants for title are inserted at the end "And the said (grantor) doth hereby for of the deed, immediately before the attes- himself his heirs executors and adminis- tation clause. 23 § 20.] THE USUAL COVENANTS. [CHAP. II. "And the said (vendor) dotli hereby for himself his heirs executors and administrators covenant with the said (purchaser) his heirs and assigns that [notwithstanding anything by him the said (vendor) or any of his ancestors or testators done omitted or knowingly suffered *] he the said (vendor) now hath power to grant all the said premises hereinbefore expressed to be hereby granted to the uses hereinbefore declared And that the said premises shall at all times remain and be to the use of the said (purchaser) his heirs and assigns and be quietly entered into and upon and held and enjoyed and the rents and profits thereof received by the said (purchaser) his heirs and assigns accordingly without any interruption or disturbance by him the said (vendor) or any person or persons whomsoever [claiming through or in trust for him (or any of his ancestors or testators) 2 ] And that free and discharged from or otherwise by him the said (vendor) his heirs executors or administrators sufficiently indemnified against all estates incumbrances claims and demands [created occa- sioned or made by him the said (vendor) or any of his ancestors or testators or any person claiming through or in trust for him them or any of them] And further that he the said (vendor) and any per- sons having or claiming any estate right title or interest in or to the said premises or any of them through or in trust for him or any of his ancestors or testators will at all times at the cost of the said (purchaser) his heirs or assigns execute and do every such assurance and thing for the further or more perfectly assuring all or any of the said premises to the use of the said (purchaser) his heirs and assigns as by the said (purchaser) his heirs or assigns shall be reasonably required." 8 1 The words within brackets [ ] in the of Conveyancing, and the forms in the preceding and succeeding forms are those statute of 44 & 45 Vict. c. 41. See infra, limiting the covenants to the acts of the p. 27, note 3. In the last-named treatise, vendor, &c, a subject which will be pres- the following very concise form of all the ently considered. covenants is given : " And the said (gran- 2 It has been customary to add here tor) for himself and his heirs but for and the words, "or by or with his or their against the acts and defaults only of him- acts means consent default privity or pro- self and his ancestors and all persons curement." For the construction given to claiming or to claim through under or in these words see infra, Ch. VI. trust for him them or any of them cove- 3 This and most of the English forms nants with the said (purchaser) his heirs here given are taken from Davidson's Pre- and assigns that he the said (grantor) hath cedents and Forms of Conveyancing, an power hereby to convey the said purchased approved modern standard work. Refer- premises in manner aforesaid free from in- ence may also be had to Bythewood & Jar- cumbrances and that the said premises man's Conveyancing by Sweet ; 2 Hughes's shall henceforth be held and enjoyed ac- Practice of Sales of Real Property, 9, Ap- cordingly and shall at any time or times pendix ; Houseman's Handbook of Prece- at the costs of the person or persons re- dents in Conveyancing; Clayton's Elements quiring the same be further and more 24 20.] THE USUAL COVENANTS. [CHAP. II. 2. Settlements, such as marriage and family settlements, " sometimes contain covenants for title similar to those con- tained in conveyances on sales," 1 though the propriety of the practice seems lately to have been doubted, 2 and it has been effectually or satisfactorily assured to the use of the said (purchaser) his heirs and assigns in manner aforesaid or otherwise as he or they shall direct by such acts deeds or other assurances as he or they shall reasonably require and tender to be executed," p. 206. In conveyances, as in statutes, there should be no punctuation, " for no one would wish the title to his estates to depend on the insertion of a comma or semicolon." Williams on Ileal Property (12th ed. ), 196. 1 Hood & Challis, Conveyancing Acts, 128. " A settlement of real estate gen- erally terminates with covenants for title by the settler as upon a sale. Such cove- nants are inserted not only on account of the consideration for the settlement when made upon marriage or for other valuable consideration, but also in order that per- sons taking under the powers of sale and exchange and other like powers (who will get from the trustees only a covenant against their own incumbrances) may have the benefit of the ordinaiy covenants for title ;" (3 Dav. Con., 2d ed., 523 ;) or, as the reason is elsewhere stated by the same author, " The husband or other grantor of the estate enters into the usual covenants for title as upon a sale, both because a settlement for valuable consid- eration, as a marriage settlement, is on the footing of an assurance to a purchaser, and in order that a vendee buying from the trustees may have the benefit of a proper chain of covenants up to the conveyance to them." Id. 45 ; see also 1 Dav. Con. (3d ed.) 115 ; 3 id. (2d ed.) 214, 704, 774, 779, 905 ; 7 Blyth. Con., 447, 495, 504 ; 2 Prideaux (10th ed.), 237, 262 ; Wil- liams on Settlements, 126. In Wolstenholme & Turner's recent work on the "Conveyancing and Law of Property Act, 1881," (as to which see in- fra, p. 27, note 3,) they say (p. 40) : "The old practice in settlements was for the set- tlor to give the ordinary vendors cove- nants for title. This can still be done by making him convey as beneficial owner instead of a settlor, and so incorporating covenant A [being one of the covenants implied by the statute]. The old practice is inconvenient. If a charge be suppressed or accidentally overlooked, the trustees on discovering it become bound to sue the settlor. The amount to be recovered might be such as to leave him penniless and make proceedings in bankruptcy necessary. This cannot be for the benefit of the wife or family, and is an obligation which should not be imposed on trustees. There should be either no covenant for title, or at most this limited covenant E, which binds the settlor to bar an estate tail (see Davis v. Tollemache, 2 Jur. N. s. 1181, 1185), or execute a valid appointment under a power, or do any other like act for confirming the settlement, but does not throw on him any obligation to discharge incumbrances." 2 In Monypenny v. Monypenny, 9 H. L. C. 114, 133, a case decided upon its peculiar facts, Lord St. Leonards, dissent- ing, said : " When a man marries and puts his estate in settlement, he is never made to do more than covenant against his own acts and the acts of those claiming under him. If his title should prove in- firm, it would be a family misfortune ; but if he had warranted his title absolutely, he would be called upon to pay the value of his estates at the veiy moment that the means of payment, the estates themselves, were taken from him. The practice thus to limit liability would, of course, apply still more forcibly in the case of a relative of the husband's bringing his estate into settlement." This dictum was cited by Chatterton, V. C. , in Thompson v. Thomp- son, 6 Irish Eq. 113, 118. In both cases, the practice of conveyancers was invoked to aid merely in interpreting settlements of doubtful import, and neither the inser- tion nor the omission of vendor's cove- nants can properly be said to have received 25 20.] THE USUAL COVENANTS. [CHAP. II. said that " voluntary settlements seldom contain any beyond (at most) a covenant for further assurance." ] 8. In cases of mortgages, it is usual in England to insert the covenants for title used in sales, except that the covenants are not restricted to the acts of the mortgagor but are against the acts of all claiming by title. 4. In the assignment or transfer of a leasehold interest, the usual covenants are that the lease is a valid and subsisting one, that its covenants have been hitherto performed by the assignor (though this is not strictly a covenant for title), and for quiet enjoyment. 2 5. In common leases, as they are called, that is, where the term is a short one, the usual covenant, and the only one gener- ally employed, is that for quiet enjoyment, and as the title is in general not examined by the tenant, the covenant is not limited to the acts of the lessor. 3 judicial approval. The subject is also noticed in an article in 72 Law Times, 382, 434. By the Roman law, warranty or indem- nity against eviction did not accompany donations. Maynz, Droit Romain (4th ed.), t. ii. § 212, p. 223. 1 Hood & Challis, supra. In addition to what is so forcibly stated by Lord St. Leonards as to vendors' covenants in settle- ments, it may be added that the trustees under them incur liability for their neglect to enforce them. Macnamara v. Macna- mara, 1 Irish Eq. 9. It has been suggested that "this can be avoided by the insertion of a clause to the effect that they shall not be liable for neglecting to enforce the cove- nant." 72 Law Times (1882), 382. - They were generally thus expressed : "Doth hereby covenant with the said (pur- chaser) his executors administrators and assigns that [notwithstanding anything by him the said (vendor) done omitted or knowingly suffered] the hereinbefore re- cited indenture of lease of the day of is now a valid and subsisting lease of the said premises hereinbefore ex- pressed to be hereby assigned and is in no wise void or voidable And that [notwith- standing any such thing as aforesaid] all the rents covenants and conditions in and 26 by the said indenture of lease reserved and contained and on the part of the lessee his executors administrators and assigns to be paid performed and observed have been paid performed and observed up to the date of these presents And that [notwith- standing any such thing as aforesaid] he the said (vendor) now hath power to as- sign all the said premises hereinbefore expressed to be hereby assigned unto the said (purchaser) his executors administra- tors and assigns for the term for which the same are hereinbefore expressed to be hereby assigned And that it shall be lawful for the said (purchaser) his execu- tors administrators and assigns at all times during the said term quietly to enter into and upon and hold and enjoy the said prem- ises." 2 Dav. Con. (2d ed.) 192. "The most common case in which covenants for title in leases are practically useful is in leases by limited owners in excess of their powers. In such cases it may happen that the persons entitled to evict the lessee are also liable under the covenants for title." Hood & Challis, Conveyancing Acts, p. 125. 8 See infra, § 26. And the form of the covenant generally is, "that he the said (lessee) paying the said rent hereby reserved shall at all times quietly enjoy," §20.] THE USUAL COVENANTS. [CHAP. II. Such, then, was until very lately the form in which the " usual covenants " were expressed. It were needless to refer particularly to the English statute of 8 & 9 Vict. c. 119, 1 which, passed in 1845, sought to replace by " implied pattern covenants " those express ones which had been in use for two centuries. It suffices to say that the act was a dead letter, and was soon by common consent said to be " by the universal consent of the profession consigned to a deserved oblivion." 2 Nearly forty years later was passed another stat- ute, the " Conveyancing and Law of Property Act, 1881," which, broader in scope and more carefully drawn, 3 is said to have &c. ; but it has been held that this does not amount to a condition precedent, and that the covenantor will be held liable on the covenant, even although the rent should be in arrear. Hayes v. Bickerstaff, 2 Modern, 35 ; Dawson v. Dyer, 5 Barn. & Adolph. 584 ; Bartlett v. Greenleaf, 11 Gray, (Mass.) 98. 1 More particularly referred to infra, Ch. XII. 2 Dart on Vend. (5th ed.) 504. 3 44 & 45 Vict., c. 41, Law Rep. xvii. Stat. 110 (supplemented by the Conveyan- cing Act, 1882, 45 & 46 Vict., c. 39, Law Rep. xviii. Stat. 138), the two being gen- erally cited together as "The Convey- ancing Acts, 1881-82," sometimes called Lord Cairns's Act. It was, however, drafted by Mr. Wolstenholme, one of the conveyancing counsel to the Chancery Division of the High Court, and one of the authors of Wolstenholme & Turner on Conveyancing Act of 1882. It is, how- ever, curious to see how settled conserva- tism sets itself even against successful reform. The Act of 44 & 45 Vict, was not so vastly superior to that of 8 & 9 Vict, as that the latter should have failed and the former succeeded, simply upon their respective merits, but during the thirty-six years which elapsed between their passage, the alteration in the Eng- lish system, by the Judicature Act and otherwise, had been enormous. Of the 8 k 9 Vict., Dart, speaking of the implied covenants thereby created, said: "Such enactments are either unnecessary or mischievous ; unnecessary, if the parlia- mentary form would, if unauthorized by Parliament, merely express in fewer words the meaning of the forms in ordinary use ; and mischievous, if an unnatural and sec- ondary meaning is given by statute to words which are prima facie clear and in- telligible ; for the effect is to increase the dilhculty of legal documents to the unpro- fessional reader." But the same criticism would obviously apply to the 44 & 45 Vict., and an approved author in speaking of this statute, although he admits that "these implied covenants are now very commonly adopted in practice," yet adds, "perhaps, in reliance upon the improba- bility that in any given case they will come to be practically tested. It would be imprudent to rely upon them in any case where it is foreseen that the covenants for title may need to be enforced, because their exact scope would, in any given case, be more difficult to ascertain than that of the express covenants formerly in use." Hood & Challis, Conveyancing and Law of Property Act, 1881. Indeed, a series of otherwise able articles in the London Law Times of 1872 and 1873 prophesies immediate and deserved failure to these statutes, and yet it is known practically that " the recent legislation has produced a revolution in the practice of English con- ve3 r ancers. The old cumbrous forms of precedents have been swept away, and modern conveyances are short, intelligible documents, stripped of much of the old black-letter learning which had come to be regarded only as legal lore and jargon, and altogether in discord with the require- ments and necessities of the last quarter of the nineteenth century." In a subsequent 27 § 21.] THE USUAL COVENANTS. [CHAP. II. produced a revolution in English conveyancing. Not only does it provide among other things that in assurances drawn in accordance with it the benefit and the burden of covenants re- lating to land shall respectively enure to and bind assigns and heirs although not named therein, but that there shall be im- plied in such conveyances a covenant to the effect therein stated by the person conveying with the person to whom the convey- ance is made, viz. covenants for the title, that is, in convey- ances for value by the beneficial owner, 1 covenants (limited, not general) for right to convey, quiet enjoyment, freedom from in- cumbrances, and further assurance ; on conveyance of leasehold for value other than a mortgage by the beneficial owner, a cov- enant (limited) for the validity of the lease ; on conveyances in mortgage by the beneficial owner either of freehold or leasehold property the same covenants for the title, but general or unlim- ited ; in a conveyance by way of settlement, a covenant by the person so conveying and all deriving title under him, for fur- ther assurance, and on conveyance by a trustee or mortgagee, a covenant that he has done no act to incumber. There is also a provision, most important in England, where there is practically no general system of registration, but equally unimportant here where such a system is universal, for an acknowledgment of right of production and undertaking for safe custody of documents, i. e. title deeds, etc. Statutory forms of conveyances, though much less elaborate, exist in many of the United States. 2 § 21. As to those upon this side of the Atlantic, of course the local habit and usage vary not only more or less widely among the different States, but sometimes indeed between different parts of the same State ; but it may in general be said that what here are called " full covenants " are the covenants for seisin, for right to convey, against incumbrances, for quiet enjoyment, sometimes for further assurance, and almost always of war- ranty, this last often taking the place of the covenant for quiet enjoyment, and indeed in many States being the only covenant in practical use. 3 chapter (Ch. XII.) it will be seen that erty. It was not unusual that the legal title statutory covenants have been introduced was in a trustee. Supra, p. 23. in many of the United States. 2 Infra, Ch. XII. 1 The expression "beneficial owner" 8 The following form of these covenants refers to the one who really owns the prop- is perhaps more generally used than most 28 22.] THE USUAL COVENANTS. [CHAP. II. § 22. There is another covenant sometimes employed, par- ticularly it would seem in the New England States, called the covenant of non-claim. 1 others : " Doth hereby covenant for him- self his heirs executors and administrators that [notwithstanding any act matter or thing by him done] he the said (vendor) is now lawfully seised of the said premises And hath good right to convey the same That the same are free from all incum- brances [done suffered or committed by him] And that the said (purchaser) his heirs and assigns shall and may at all times hereafter freely peaceably and quietly enjoy the same without molestation or eviction of him the said (vendor) or any person or persons whomsoever [lawfully claiming or to claim the same by from or under him them or any of them] And that he the said (vendor) shall at all times hereafter at the request and expense of the said (purchaser) his heirs and assigns make and execute such other assurances for the more effectual conveyance of the said prem- ises as shall be by him reasonably required And that he the said (vendor) and his heirs all and singular the messuages and tenements &c. hereby granted and men- tioned or intended so to be with the ap- purtenances unto the said (purchaser) his heirs and assigns against him the said (vendor) and his heirs and against all and every other person or persons lawfully claiming or to claim the same or any part thereof [by from or under him them or any of them] shall and will by these pres- ents warrant and forever defend." The following form was, by a text-writer of authority, said to be in common use in New England : "I (A. B.) for myself my heirs executors and administrators do covenant with (C. D.) his heirs and assigns that I am lawfully seised in fee simple of the aforegranted premises that they are free from all incumbrances that I have a good right to sell and convey the same to the said (C. D.) his heirs and assigns for- ever as aforesaid and that I will and my heirs executors and administrators shall warrant and defend the same to the said (G. D.) his heirs and assigns forever against the lawful claims and demands of all per- sons." 3 Washburn on Real Property (3d ed.), 610, n. This seems to be omitted in the fourth edition (1887). On the other hand, in Greene v. Creighton, 7 R. I. 1, the covenant sued on — that against in- cumbrances — was expressed nearly as fully as in the older English form ; and the deed (made in 1854) was said to contain "full covenants of warranty according to the form used in this State." In those States in which the cove- nants for title, or some of them, are by statute implied from the words of grant of the conveyance, at least so as to assure the estate to the purchaser as far as the acts of the vendor are concerned (as to which see Chapter XII.), the covenant for seisin, being usually one of those thus implied, is often entirely omitted in express words, and the only covenant expressed is that of warranty. 1 Its form is generally as follows : "So that neither the said (vendor) nor his heirs nor any other person or persons shall or will at any time hereafter have claim chal- lenge or demand any estate right or title to the aforesaid premises or to any part or parcel thereof but of and from all such claims and demands shall be utterly de- barred and forever excluded by virtue hereof." This covenant is also used in Pennsyl- vania in deeds of extinguishment of ground rents. The covenant for quiet enjoyment as generally expressed in ground-rent deeds in Pennsylvania is, "that the said (gran- tee) his heirs and assigns paying the said yearly rent and taxes or extinguishing the same by purchase and performing the covenants and agreements aforesaid shall and may at all times hereafter forever freely," &c. It is obvious, however, that any apt words showing the intention of the parties will amount to such a covenant. Thus, "to hold free and clear from me my heirs &c. and from all other persons whatso- ever" (Midgett v. Brooke, 12 Ire. N. C. 147), and "to hold and enjoy the said premises peaceably and quietly for the said 29 § 24.] THE USUAL COVENANTS. [CHAP. II. As a general rule, there is no practical difference between this covenant and the covenant of warranty. 1 § 23. Statutory provisions for forms of conveyances are found in the States of Illinois, Indiana, Kentucky, Michigan, Mississippi, Tennessee, Texas, Virginia, West Virginia, and Wisconsin, and perhaps others. Of these, the statute of Indiana, which is the most concise — that in Michigan is the same — may serve as an example : — "Any conveyance of lands worded in substance as follows — 'A. B. conveys and warrants to C. D. (here describe the premises), for the sum of (here insert the consideration),' the said conveyance being dated, and duly signed, sealed, and acknowledged by the grantor — shall be deemed and held to be a conveyance in fee simple to the grantee, his heirs and assigns, with covenant from the grantor for himself and his heirs and personal representatives that he is law- fully seised of the premises, has good right to convey the same and guarantees the quiet possession thereof; that the same are free from incumbrances, and that he will warrant and defend the title to the same against all lawful claims." 2 § 24. These, then, are the " usual covenants " in use on both sides of the Atlantic, and we proceed to consider their extent relatively to the different classes of grantors. These classes are three : — I. Those who convey, by sale, mortgage, or otherwise, estates of which they are seised in their own right ; II. Fiduciary grantors, such as trustees, executors (whether conveying in exercise of a power or under authority of a decree), mortgagees with power of sale, assignees of bankrupts, insolvents, and the like ; III. Ministerial grantors, such as sheriffs, marshals, tax-col- lectors, &c. term " (Levitzky v. Canning, 33 Cal. 299), veyance of the fee with a covenant for were respectively held to be covenants for further assurance, and not a mere agree- quiet enjoyment. So with respect to the ment to convey. covenant for further assurance, where a 1 The exception to this is noticed infra, deed, in itself sufficient as a present con- Ch. XI. veyance, contained a clause in the haben- 2 Rev. Stat. Ind., 1881, p. 582. And dum that the grantee should hold the a deed in this "short form" is there ob- premises to his heirs and assigns forever, viously held to convey the land to the and a covenant to make a good and sum- grantor and "his heirs and assigns" as cient deed with a warranty of title when fully as if these words and the full cove- required, this was held in Davis v. Tar- nants were written out at length therein, water, 15 Ark. 288, to be a present con- Keiper v. Klein, 51 Ind. 316. 30 §25.] THE USUAL COVENANTS. [CHAP. II. § 25. First, those who convey estates held in their own right, and not fiduciarily. When in England the examination of the title became a matter of course, and vendors who brought their estates into the market were forced to comply with certain rules which it was held the purchaser had a right to exact, it was naturally thought unrea- sonable that he should receive covenants against the acts of all persons, and the extent of the covenants which a purchaser had a right to expect soon became matter of regulation ; and it is now well settled both in point of authority and practice, that a purchaser has no right to demand from his vendor covenants of greater scope than against his own acts. 1 Where the vendors 1 "If a man purchase an estate of in- heritance," said Lord Eldon, "and after- wards sell it, it is to be understood prima facie that he sells the estate as he receives it, and the purchaser takes the premises granted by him, with covenants against his acts. This seems at first to involve a degree of injustice, but it all depends on the fact whether the vendor be really put- ting the purchaser into the same situation in which he stood himself. If he has bought an estate in fee, and at the time of the resale has but an estate for life, it must have been reduced to that estate by his own act, and in that case the purchaser will be protected by the vendor's cove- nants against an act done by himself. But if the defect in his title depend upon the acts of those who had the estate before him, and he honestly but ignorantly pro- posed to another person to stand in his situation, neither hardship nor injustice can ensue. What is the common course of business in such case ? An abstract is laid before the purchaser's counsel, and, though to a certain extent he relies on the ven- dor's covenants, still his chief attention is directed to ascertaining what is the estate, and how far it is supported by the title. The purchaser, therefore, not being misled by the vendor, makes up his mind whether he shall complete his bargain or not ; and if any doubt arise on the title it rests with the vendor to determine whether he will satisfy these doubts by covenants more or less extensive. Prima facie, therefore, in the conveyance of an estate of inheritance, we are led to expect no other covenants than those which guard against the acts of the vendor and his heirs." Browning v. Wright, 2 Bos. & Pull. 23. For the con- nection in which these remarks were made, see infra, Ch. XII. See, in accordance with this view, Church v. Brown, supra, and two opinions in 2 Powell's Conveyancing, 206-209. So it was said in Thackeray v. Wood, 6 Best & Smith, (Q. B.) 773 : "The operation of a qualified covenant for title is well knowm, and has been established by a series of cases, and I do not feel justified in depart- ing from the construction established by those decisions. Upon a sale of real prop- erty it is for the purchaser to determine what the title of the vendor is, and to sat- isfy himself that he has a good title. The vendor then makes a conveyance, and usu- ally covenants that he has done no act to affect or derogate from his title. If the vendor had no title at all to the property conveyed, there would be no breach of such a covenant." "A vendor," says Mr. Fearne, " who purchased the estate him- self should covenant only against his own acts and the acts of all claiming under him, where the title is well deduced and the identity of the lands conveyed to him and those sold by him is apparent ; but if the title of the vendor is questionable he should covenant generally ; and if the lands conveyed, owing to any alteration in them or otherwise, do not evidently ap- pear by the description of them in the purchaser's deed of conveyance to be the 31 §26.] THE USUAL COVENANTS. [CHAP. II. are tenants in common they covenant severally, and their cove- nants are restricted to their several undivided shares, 1 and though joint tenants sometimes covenant jointly, yet this is with reason deemed objectionable. 2 As to covenants by married women, it is familiar that, as the common law sank the existence of the feme covert into that of her husband, her contracts were absolutely void. 3 But there has recently been introduced by legislation, first in the United States and subsequently in England, a statutory separate estate, and her liability as to her covenants for title in its conveyance depends on the provisions of the local statutes. 4 § 26. An exception to the rule that the covenants are usually limited is in the case of a mortgage, in which a mortgagor always gives unlimited covenants for the title, as those who lend money are accustomed to require every security for its repay- ment, 5 and to some extent such would also seem to be the prac- same conveyed to the vendor, the vendor should further covenant that they are part of the estate conveyed to him by his ven- dor." Fearne's Posth. Works, 110, 118. i 1 Dav. Con. (3d ed.) 114. So in Massachusetts, where the vendors, tenants in common, were "to give a good and sufficient warranty deed, they made and tendered," said the court, "a deed in which each grantor warranted his several share, but not that of his co-grantors. Tins is clearly right. The purchaser was to have a warranty of title from him who conveyed, but not also a guaranty from others. If several deeds had been made with several covenants, the terms would have been complied with. The legal ef- fect is the same in a joint deed with sev- eral covenants." Coe v. Harahan, 8 Gray, 198. 2 "Because their so doing makes all liable originally for the acts of each, and leaves the whole burden on the survivors for the time being, and ultimately on the Longest liver." 1 Dav. Con. (3ded.) 114. 3 With the exception of feme sole trad- ers, by virtue of the custom of London ; Bohn's Priv. Lond. 187. See infra, Ch. XI 1 1. Davidson's Conveyancing contains the following form of a covenant by a mar- ried woman in a conveyance executed by 32 virtue of a power : "And the said (hus- band) doth hereby for himself his heirs executors and administrators and she the said (wife) in exercise of her aforesaid power and of every or any other power or authority enabling her in this behalf and to the intent to charge and bind her sep- arate estate doth hereby for herself her heirs executors and administrators cove- nant with the said (purchaser) his heirs and assigns that notwithstanding any- thing by her the said (wife) done," &c. 2 Dav. Con. (3d ed.) 421. 4 See as to this, infra, Ch. XIII. 6 Williams on Real Property (12th ed.), 447 ; Cripps v. Reade, 6 Term, 606 ; Sugd. on Vend. (14th ed.) 551 ; 1 Dav. Con. (3d ed. ) 115; Houseman's Convey- ancing, 52, 207. Thus in one of the most recent treatises it is said that covenants by mortgagees "are unrestricted and amount to a warranty against and for the acts and omissions of the whole world." Goodeve's Modern Law of Real Property (3d ed., 1885, containing also Notes on the Real Property and Conveyancing Act, 1881- 82), 206. And it will be seen that in the Conveyancing Act, 1881, the implied covenants in a mortgage are unlimited. Supra, § 20. 27.] THE USUAL COVENANTS. [CHAP. II. tice on this side of the Atlantic. 1 In some of the States, as in Pennsylvania, mortgages contain no covenants for the title. 2 It has, moreover, been already said, that in common leases, as the title is not inspected, the lessor should covenant against all per- sons whomsoever. 3 § 27. Where, however, the vendor does not claim by purchase, in the popular signification of the term, that is by way of sale for a valuable consideration, a purchaser is entitled, as a general rule, to require covenants extending to the acts of the last person who thus claimed by purchase. 4 " And this," says Sugden, 5 " is the universal and settled practice of conveyancers. For instance, if I sell an estate which was devised to me, and the devisor's father purchased the estate, the covenants for title are extended to the acts of the father." 6 On this side of the Atlantic the same practice has at times been recognized. 7 1 Lockwood v. Sturdevant, 6 Conn. 384 ; Lloyd v. Quimby, 5 Ohio, 262 ; But- ler v. Seward, 10 Allen, (Mass.) 466. 2 Except those implied by statute from the words "grant, bargain, and sell." See infra, Ch. XII. 3 Barton's Conv. 75 ; see Calvert v. Sebright, 15 Beav. 156 ; Dart on Vend. (5th ed.) 549. 4 In the old case of Pool v. Pool, 1 Chancery Rep. 18, "the plaintiff, being ordered to perform his father's covenants, refused, insisting that he is not chargeable with his father's covenants as heir, the land being conveyed to him, nor as ex- ecutor, having no assets. This court or- dered that the said plaintiff shall seal the said covenant according to the said articles of his father, and thereby covenant to free the premises from leases and incumbrances, or stand committed to the Fleet." In re- ferring to this case in Hill v. Ressegieu, 17 Barb. (N. Y.) 167, the court said, "No doubt the son had notice, and I sup- pose these covenants were against his own acts." 5 Sugd. on Vend. (14th ed.) 574. 6 This rule has not, however, been al- ways adopted by the Court of Chancery. Lord Hardwicke once said that he had never heard nor did he know of such a rule; "it would be unreasonable to extend the covenants to the first purchaser, when a family have been for several generations in possession of the estate, for they may have had the benefit of the statute of limita- tions and other bars in their favor, and therefore carrying it no further back than the person under whom the present vendor claims is sufficient." Loyd v. Griffith, 3 Atkyns, 267; but see this case, infra, p. 45, n. 1. As to the extent of covenants in set- tlements, see supra, § 20, p. 25. Although the dictum of Lord St. Leonards there quoted (note 2) from Monypenny v. Mony- penny, 9 H. L. C. 114, 133, makes no dis- tinction between estates descended or de- vised and those bought by the settlor, yet if, according to what seems the better prac- tice, vendors' covenants are to be inserted in the settlement, the distinction is as valid as in sales. In his treatise on Vendors he says : "A person claiming under a volun- tary conveyance is considered in the same light as a devisee." Sugd. on Vend. (14th ed.) 574. Dart, little inclined in general to agree with Sugden, cites the sentence in the text without dissent, and adds : "The courts would probably at the pres- ent day be inclined to sanction such prac- tice by decision." Dart on Vend. (5th ed. ) 545. 7 Hill v. Ressegieu, supra; Hyatt v. Seeley, 1 Kern. (N. Y.) 56 ; Holnian v. Criswell, 15 Tex. 399. 33 27.] THE USUAL COVENANTS. [CHAP. II. The theory of English conveyancers, in thus obtaining cove- nants against the acts of all those not actually claiming by pur- chase, is that there may be no one in the chain of title against whose acts there is not a covenant. 1 1 "Although in theory," says Sugden (Vend., 14th ed., 575), "a purchaser is entitled to a regular chain of covenants for title running with the land and extend- ing to the acts of the successive owners of the property, yet practically he is entitled to no such thing, but must rest content with the covenants obtained by former owners, whether they run with the land or are collateral to it, and whether they keep up the chain of liability or leave it altogether broken and disconnected. This observation does not apply to the cove- nants for title to which a purchaser is entitled from his immediate seller." In Humphrey on Real Property, a work not more remarkable for the concise and clear view of the actual law which it con- tains than for the deficiency of the code by which the author proposed to rem- edy the evils he so pointedly showed to exist, he remarks: "The professed rule is that there should be a chain of cove- nants throughout the title, connecting those of the alienor with those of the pre- ceding owner who has last covenanted. To this rule, however, there are the following several objections of expediency and of precedent. First, such a qualified war- ranty never actually enters the contempla- tion of the contracting parties. Whoever acquires land at its full value expects an equally complete or indefeasible title to it. The notion of concatenated fractions of an entire obligation, rendering the alienor an- swerable for the faults of the first link only, and then referring the alienee, for all prior defects, to the exhausted assets of long-deceased strangers, is too revolting to suppose it would be accepted as a guar- anty by any purchaser to whom it was once explained. Should it be urged, you have the title to inspect, he would reply, such are the complications of real prop- erty and the inadequate means of search, that with all reasonable diligence defects must often remain undiscovered, and a purchaser is not concluded by latent faults. 34 Under the Roman law, the seller, on the eviction of the purchaser, was answerable to him for the loss, under certain qualifi- cations interposed for the protection of the former. The Code Napoleon (1826-1840), in framing which both precedent and prin- ciple were fully discussed (and the subject is a general one), imposes an absolute war- ranty on a seller, in case of eviction, to be answered in damages, the amount of which is chiefly regulated by the price, and by subsequent permanent improvements.'' Humphrey on Real Property, 77. In a sale of land, as of any other res man- dpi, at the early Roman law, the vendor usually entered into a stipulation by which he warranted to the vendee full legal own- ership {dominium ex jure Quiritium), and thereby impliedly bound himself to defend the title (prccstare auctoritatem) against all claims whatever, or pay to the vendee, if he should be judicially evicted, twice the value of the property. If such a stip- ulation was omitted, the transfer of free and entire possession (vacuam possessio- nem) fulfilled the vendor's whole duty. At a later period, this stipulation gave place to the less formal stipulatio duphe, or promise to pay the vendee, if evicted, double the purchase price. Finally, in the time of Justinian, warranty against eviction had become so general as to be considered an obligation implied in the mere sale. If, therefore, the vendee was evicted at the suit of a third person, the vendor was bound to indemnify him, even though no express promise to that effect had been made. This warranty against eviction, though originally confined to the acts of the vendor and those claiming un- der him, or perhaps indeed to the acts of the vendor only, was finally extended to judicial eviction by any one. There was also implied in every sale a warranty by the vendor against hidden faults, among which, by a classification probably less scientific than arbitrary, were included incumbrances (servitutes). See § 29.] THE USUAL COVENANTS. [CHAP. II. § 28. But it is difficult to determine by general and precise rule what, on this side of the Atlantic, are the " usual covenants " — that is to say, the covenants which a vendor should give and a purchaser expect — as owing to various causes the practice of conveyancing differs widely in the two countries. 1 It is obvi- ous that much of the practice which prevails where the state of society has long been permanent, the titles old, and to a greater or less extent carefully examined at every purchase, loses its application in a comparatively new country, and the same cove- nants which might satisfy a purchaser in England or Massachu- setts might not satisfy a purchaser in Idaho or Wyoming. As precision of conveyancing increases, a purchaser is less anxious for general covenants than where he buys in comparative igno- rance of the title, and relies upon such covenants for his protec- tion. 2 Hence a great difference will be found to exist as to the practice, not only on the different sides of the Atlantic, and among different States, but even between different parts of the same State. § 29. Thus in Pennsylvania it is decisively settled that as a general rule a purchaser has no right to expect covenants of greater scope than against the acts of the vendor and those claim- ing under him, and that an agreement to convey " by a warranty deed " means a deed with special warranty, 3 while at the same time it is considered that no suspicion of the title can properly arise in case the deed should contain general covenants. 4 It is Maynz, Droit Rom. (4th ed.) t. ii. §§ 210- 4 Cresson v. Miller, 2 Watts, (Pa.) 276; 213; Mackeldey, Handb. of Rom. Law, Forster v. Gillam, 13 Pa. 343. "Gen- § 403 ; Tomk. & Jenck., Mod. Rom. Law, eral warranties," said Rogers, J., in Cres- pp. 366-368; Sandars's Justin., lib. iii. son v. Miller, "are taken ex abundante tit. xxiii. 182. cautela, and not because the purchaser 1 The absence of a general system of had the least reason to suspect that the registration is of course one of the prin- title was defective. A purchaser taking a cipal of these causes, and the vexatious deed with a general warranty forms not questions which there arise as to the pur- the slightest presumption that the title he chaser's right to a production of the ven- received was doubtful, or that he knew it doi-'s prior title-deeds are unknown in this to be such. The idea seems to be that if country. he fails to recover the land he has his 2 See the remarks of Huston, J., in remedy over against the vendor, and that Whitehead v. Carr, 5 Watts, (Pa.) 369, therefore he can be in no better situation and Spencer, J., in Pitcher v. Livingston, than the vendor. It is apparent, how- 4 Johns. (N. Y. ) 14. ever, that in a great majority of instances 3 Withers v. Baird, 7 Watts, (Pa. ) 229; a vendee cannot obtain adequate relief. Espy v. Anderson, 14 Pa. 312; Cadwal- Without insisting upon the occasional in- ader v. Tiyon, 37 id. 322 ; Lloyd v. Far- solvency of the vendor, he cannot be com- rell, 48 id. 78. pensated for the increased value of the land 35 § 80.] THE USUAL COVENANTS. [CHAP. II. believed that in the large cities of that State, in ordinary cases, a covenant of warranty limited to the acts of the vendor and those claiming under him and in some instances carried back to the last person claiming by purchase 1 is the only express covenant for title inserted in the conveyance. But while this is so, it is believed that outside of those cities a purchaser generally expects, and a vendor rarely hesitates to give, a covenant of general war- ranty, as it seems to be sometimes thought that if the latter is only willing to covenant against his own acts he must know there is something defective about the prior title. In a case in the Supreme Court of the United States, 2 Story, J., referred to a deed with special warranty only, as being " a significant circum- stance," in affecting a purchaser with notice of a paramount title ; 3 but there would appear to be equal reason for the opposite argument that a deed with general warranty was as significant a circumstance, that unless there had been something wrong about the title the purchaser would not have demanded a general covenant, and that he intended to run the risk of the defect and rely on the covenant for his protection. In the absence of local usage, it would seem that no presumption of notice can properly arise either from the absence or presence of unlimited covenants, and where it is, as some of the cases say, the invariable usage in a State to insert general covenants, the presence in the deed of limited covenants is only a ground of presumption of mutual knowledge, or at least of suspicion, of some defect of title. 4 § 30. In Massachusetts and many other States, two kinds of deeds seem to be in general use — a " warranty deed " and a "quitclaim deed" — the form of which, as given by the latest authorities, is exactly similar with the exception of the covenants for title. In the " warranty deed " these are that the grantor is arising from his industry and skill, or from or devisees it is customary to extend the the employment of his capital in erecting covenant to the acts of the intestate or valuable improvements on the premises." testator, and sometimes, as stated in the The language of the court below, in the text, they are carried back to the last per- prior case of Robinson v. Justice, 2 Pa. son claiming by purchase in its popular (old Pa., not Pa. St. ) 19, that "the circum- sense. See supra, § 27. stance of the deed's containing a general 2 Oliver i\ Piatt, 3 How. (S. C. U. S. ) warranty renders it probable that the pur- 410. chasers knew the title not to be without 8 Such also seems to have been thought suspicion," was considered, upon error, to in Woodfolk v. Blount, 3 Hay.(Tenn.) 147. have been merely an expression of opinion 4 Miller v. Fraley, 23 Ark. 743; Lowry upon the facts before the court. v. Brown, 1 Cold. (Tenn.) 459 ; Littler v. 1 Thus in case of a conveyance by heirs City of Lincoln, 106 111. 353. 36 31.] THE USUAL COVENANTS. [CHAP. II. seised in fee simple, that the premises are free from incum- brances, that he has good right to sell and convey them, and that he and his heirs, executors, and administrators will warrant and defend them to the grantee and his heirs and assigns forever against the lawful claims and demands of all persons ; in other words, the covenants are general or unlimited. In the "quit- claim deed " the covenants are that the premises are free from all incumbrances made or suffered by the grantor, and that he and his heirs, executors, and administrators shall warrant and defend the same to the grantee, his heirs and assigns, against the lawful claims and demands of all persons claiming by, through, or under him, but against none other ; in other words, the covenant for seisin and right to convey are omitted, and the covenants against incumbrances and of warranty are limited or qualified. 1 § 31. In Virginia, it has been consistently held that the prac- tice is different from that in England, and that a general cove- nant of warranty is usually required and given. 2 So in Kentucky, 1 Crocker's Notes on Common Forms (2d ed.), 4, 90. Without this explanation, the case of Kyle v. Kavanagh, 103 Mass. 359, might mislead, as it was there said by the court : ' ' The plaintiff requested the court to instruct the jury that if by the contract 'the defendant was to take his conveyance from the grantor if he found the title good in him, all he could claim was a quitclaim deed.' The court instructed the jury that the defendant was entitled to a warranty deed unless he waived it and agreed to take some other form of conveyance. We are of opinion that this ruling was erroneous. ... If the grantor has in fact a good title, his deed of quitclaim conveys his title and es- tate as effectually as a deed of warranty. An agreement or covenant to convey a good title, therefore, does not necessarily entitle the covenantee to a warranty deed." This, however, meant that in Massachu- setts, as in England, a vendor is not re- quired to covenant beyond his own acts, and therefore that a quitclaim, and not a warranty deed should be given : indeed, from the terms of the contract of sale in that case, the latter could not have been required from the vendor. And as between the vendee and creditors of the vendor, no presumption of fraud arises from the fact that the vendee's title rests upon a quit- claim deed. Mansfield v. Dyer, 131 Mass. 200 ; Grant v. Bennett, 96 111. 513. In Iowa, it is held that a vendee under a quit- claim deed is not to be regarded as a bona fide purchaser without notice ; Watson v. Phelps, 40 Io. 482 ; Springer v. Bartle, 46 id. 688 ; but this does not affect a subse- quent grantee with covenants of warranty from such vendee. Winkler v. Miller, 54 id. 477. ' 2 Rucker v. Lowther, 6 Leigh, (Va.) 259 ; Hoback v. Kilgore, 26 Gratt. (Va.) 442. In Dickinson v. Hoomes, 8 id. 394, the language of Lord Eldon in Browning v. Wright, siqjra, was quoted and contrasted with the Virginia practice, which in God- din v. Vaughn, 14 id. 117, it was said "may not be questioned." In Boggess v. Robinson, 5 W. Va. 402, it was held that in a bill to compel the specific execution of a decedent's verbal contract to convey, the heirs of the decedent could only be decreed to execute a deed with special warranty ; but in Tavenner v. Barrett, 21 id. 656, the court, though holding that a deed with special warrant}' satisfied the requirements of the contract which the complainant sought to enforce, observed that " as a general rule upon an agree- ment for the sale of land, the vendor, 37 § 31.] THE USUAL COVENANTS. [CHAP. II. it was held at an early day to be both the settled rule and the practice in that State that unless there were a special contract to the contrary a general covenant of warranty must be given, 1 and such seems to be still the rule. 2 So in North Carolina, " when one makes a contract of sale for his own benefit there is an implication from the nature of the transaction that he will make a deed with general warranty." 3 So in Michigan, it has been held that the tender of a deed containing covenants against the acts of the vendor only was not a compliance with an ordi- nary contract of sale. 4 So in Indiana, a bond conditioned " for making a lawful title " was held to require " a general warranty deed containing the usual covenants," 5 and although in a case in the Federal Court for that district it was considered that a bond conditioned to make " a good and general warranty deed with the fee simple annexed " did not require the insertion of a covenant for seisin, 6 yet in a later case the Supreme Court of that State held that an agreement to convey " by a good and indefeasible inheritance in fee simple " is not complied with by the tender of a deed with a general covenant of warranty merely, but that " a fair construction of the language of the bond makes it demand a deed with full covenants ; " 7 and in a very recent case there it though nothing be said in the contract on tion before the adoption or repudiation the subject, is considered as contracting of it." for a general warranty ; " and to the same 4 Dwight v. Cutler, 3 Mich. 579, where effect is Allen v. Yeater, 17 id. 128. after citing the text the court added, 1 Steele v. Mitchell, Kent. Dec. 47. "No doubt it is the general usage in this 2 Fleming v. Harrison, 2 Bibb, 171; State, and probably in most of the Western Vanada v. Hopkins, 1 J. J. Marsh. 293 States, to convey land by deeds containing (see Bodley v. M'Chord, 4 id. 475); Hedges the covenant of general warranty, upon v. KeiT, 4 B. Mon. 528 ; Andrews u.Word, the principle that an agreement to convey, 17 id. 520. In Slack v. Thompson, 4 where there is nothing to show a contrary Mon. 462, the express agreement was to intention, gives a right to the usual cove- give a covenantof quiet enjoyment, "with- nants for title;" and this was confirmed out any trouble or molestation what- in the later case of Allen v. Hazen, 26 id. ever," and the terms of the agreement 143, and it is held obviously there and would of themselves have been sufficient elsewhere that no particular form of words to prevail even against an opposite usage is necessary to constitute a covenant. It to the contrary. is a promise, and the question is, what is 3 Faircloth v. Isler, 75 N". Car. 551. it the parties understood by it. Johnson In the previous case of Gilchrist v. Buie, v. Hollensworth, 48 id. 140. 1 Dev. & Bat. Eq. 357, the court, in ad- 5 Clark v. Kedman, 1 Blackf. (Ind.) verting to the English practice of limiting 379. the covenants to the acts of the vendor, 6 Kirkendall v. Mitchell, 3 McLean, sair], " That position has never yet been 146, per McLean, J. laid down by us or our predecessors and 7 Linn v. Barkey, 7 Ind. 70. would require verv deliberate considera- 38" 31.] THE USUAL COVENANTS. [CHAP. II. was said, " The law of this State is that an executory contract for a general warranty deed calls for a deed with full covenants." 1 So where in an early case in Ohio it was said that a contract for a good and sufficient deed is a contract " to convey the fee simple with covenant of warranty," 2 it is presumed that a general war- ranty was meant. 3 So in Illinois, Minnesota, Missouri, and Ar- kansas, a covenant of general warranty seems to be required, 4 and it is presumed that the same rule prevails in the States more recently admitted into the Union and also in the Territories, where the titles are comparatively newer. 5 But it is probable that with the increase of care in the examination of the title the pur- chaser's right to unlimited covenants will be narrowed. And it is scarcely necessary to say that whatever may be the local usage on this point it will be always subject to be controlled by the express terms of the articles of sale. 6 So, too, in some States, the covenant of warranty (whether gen- eral or limited) is usually the only one inserted in the deed. 7 In 1 Bethell v. Bethel], 92 Ind. 318. 2 Tremain v. Liming, Wright, 644. 8 So it is presumed that general cove- nants are intended by the expression in a rather late case in Vermont, "The several covenants of seisin and against incum- brances are covenants which, under the form of conveyances in this State, are usually inserted in deeds of that character, and when an agreement is made for a war- ranty deed a deed with these covenants would be intended, " (Bowen v. Thrall, 23 Verm. 385,) and the covenant of war- ranty in the deed in question was a gen- eral or absolute one. So in Rhode Island, in Point Iron Works v. Simmons, 11 R. I. 496. * Clark v. Lyons, 25 111. 105 ; John- ston v. Piper, 4 Minn. 195 ; Herryford v. Turner, 67 Mo. 296 ; Witter v. Biscoe, 13 Ark. 422 ; though it is also obviously held that a deed without covenants is as effectual to pass a present estate as one with full covenants, the latter being only separate contracts ; Bagley v. Fletcher, 44 id. 153 ; and equally obviously, the " usual covenants " mean those of the vendor and pot of a stranger; Ruddu. Savelli, id. 145. 5 Johnston v. Piper, supra ; Taul v. Bradford, 20 Tex. 264 ; Rhode v. Alley, 27 id. 445; Little v. Allen, 56 id. 133; Allen v. Yeater, 17 W. Va. 128 ; Tavenner v. Barrett, 21 id. 656. In such States it is presumed that the remark of Spencer, J., in the old case of Pitcher v. Livingston, 4 Johns. (N.Y.) 14, might apply, that it was rare for the purchaser to investigate the seller's title and that he mostly relied upon his covenants. 6 As iu Holland v. Rogers, 33 Ark. 251. 7 As an illustration of this, it was said by Lumpkin, J., in Leary v. Durham, 4 Ga. 601: "I can say with truth, after a practice of more than a quarter of a cen- tury, that I never saw a deed containing, in so many words, definite and precise covenants of seisin, right to convey, for quiet enjoyment, against incumbrances, and for further assurance. These are all designed to be included in the general covenant of warranty of title against all claims." Substantially the same remarks were made in the recent case of Green v. Irving, 54 Miss. 454. See also Stewart v. West, 14 Pa. 336; Caldwell v. Kirk- patrick, 6 Ala. 61 ; and infra, Ch. VIII. In some of the States, as in Georgia, it has been recently provided by statute, that ' ' A general warranty of title against no § 32.] THE USUAL COVENANTS. [CHAP. II. others, however, it is customary to insert most or all of the five covenants for title. 1 Upon the whole, it would seem that the question " what are the usual covenants " is, or may often be, one of fact rather than of law. In England, such a question as to a lease has been, in a court of law, considered to be one for the jury, 2 while in equity it has been referred to a master, 3 and in a somewhat recent case in New Jersey it was suggested that the same practice might be adopted as to what were the usual covenants in a deed in a given locality. 4 § 32. Owing to looseness of expression in contracts of sale, questions have even arisen whether the contract was not substan- tially complied with by the tender of a deed containing covenants for the title, although the title itself might be defective. Thus it was held in the early case in New York of Gazley v. Price 5 that an agreement " to give a good and sufficient deed for the prem- ises " related merely to the sufficiency of the conveyance to pass whatever estate the vendor had, and in a subsequent case 6 a similar construction was given to a contract to give " a good warranty deed of conveyance of the land." 7 But these decisions the claims of all persons includes in itself what is the meaning to be attached to the covenants of a right to sell and of quiet word * sufficient ' ? Was it meant to im- enjoyment and freedom from incum- port that the vendors (to whom the deeds brances. " Kev. Code, 1882, sec. 2702, and were to be delivered and who were to see infra, Ch. XII. for other statutory covenant for their production) were to provisions as to covenants. have a covenant or covenants which at all 1 See 4 Kent's Com. 471 ; 3 Washburn times and under all circumstances should on Real Property (5th ed. ), 477; McKleroy secure to them the production of the deeds, v. Tulane, 34 Ala. 83 ; Murphy v. Lock- or merely that the vendors should have wood, 21 111. 618. such a covenant or covenants as according 2 Bennett v. Womack, 3 Car. & Payne, to the ordinary practice and the views of 96, per Lord Tenterden; 8. c. on motion this court would be deemed to be suffi- for a new trial, 7 Barn. & Cress. 627. cient ?" and it was held that the word 8 Henderson v. Hay, 3 Bro. Ch. 632. "sufficient" was qualified by the word * Wilson v. Wood, 2 C. E. Green, (N. J.) " proper." 216. What are "customary covenants," 6 16 Johns. 267, per Spencer, J. said the court, in Gault v. Van Zile, 37 6 Parker v. Parmele, 20 Johns. 132. Mich. 23, " would be determined by the 7 So, apparently, in Clark v. Lyons, 25 lex rei sitce." Where there is no difficulty 111. 105 (but see the later cases there, infra, as to the practice, of course the court must p. 41, n. 5), and so in a case in Massa- decide from the contract itself. Thus chusetts, where the agreement was to give where, in Onslow v. Londesborough, 10 a good and sufficient warranty deed of the Hare, 67, the contract provided for "one premises, it was held that "the words or more proper and sufficient covenant or ' good and sufficient ' relate only to the covenants " for the production of title validity of the deed and do not imply papers, the court said, "The question is, that the title was valid, or that it was free 40 32.] THE USUAL COVENANTS. [CHAP. II. are opposed both to prior and to subsequent authorities in the same State upon articles substantially similar, and cannot be considered as law at the present day either there or elsewhere. Thus in a previous case J it had been held that an agreement to execute a good and sufficient deed for the premises did not mean merely a conveyance good in point of form — that would be a conveyance without substance — but it meant an operative con- veyance, one that carried with it a good and sufficient title to the land conveyed; 2 and in a subsequent case 3 Chancellor Walworth was clearly of opinion that " an agreement to convey land by a good and sufficient warranty deed was not complied with by the mere giving of a warranty deed, where the grantor had no title to the land or when his title was imperfect ; it must be a deed good and sufficient both in form and substance to convey a valid title to the land which the covenantor has agreed should be con- veyed." 4 These principles are sustained by a great weight of authority, 5 and in a later case in New York all the authorities from incumbrance. To guard against any defect of title, a covenant of warranty was provided for, which shows clearly that the agreement was so understood by the par- ties." Tinney v. Ashley, 15 Pick. 552, approving Gazley v. Price. The same court seemed disposed to take the same view of the law in an early case, Aiken v. San- ford, 5 Mass. 499 ; though it was said in that case, as in Swan v. Drury, 22 Pick. 489, and Tharin v. Fickling, 2 Rich. L. (S. C.) 364, "that if the money was to be paid on receiving the deed, it might be a reasonable construction that a good and sufficient title should be conveyed." See also Mead v. Fox, 6 Cush. (Mass.) 202. 1 Clute v. Robinson, 2 Johns. 595, per Kent, C. J. 2 So in Jones v. Gardner, 10 Johns. 266, and Judson v. Wass, 11 id. 528. 8 Eversoii v. Kirtland, 4 Paige, (N. Y.) 638. 4 So in Carpenter v. Bailey, 17 Wend. (N. Y.) 244 ; Traver v. Halstead, 23 id. 66 ; see Winne v. Reynolds, 6 Paige, (N. Y.) 411. 6 Hunter v. O'Neill, 12 Ala. 39 ; Flinn v. Barber, 64 id. 193 ; Tarwater v. Davis, 3 Eng. (Ark.) 153; Lewis v. Boskins, 27 Ark. 61 ; Thayer v. White, 3 Cal. 229 ; Haynes v. White, 55 id. 38 ; Mitchell v. Hazen, 4 Conn. 495 ; Dodd v. Seymour, 21 id. 480 ; Clark v. Croft, 51 Ga. 368 ; Brown v. Cannon, 5 Gilman, (111.) 174 ; Morgan v. Smith, 11 111. 199 ; Thomp- son v. Shoemaker, 68 id. 256 ; Clark v. Redman, 1 Blackf. (Ind.) 379 ; Shreck v. Pierce, 3 CI. (Io.), 360 ; Brown v. Starke, 3 Dana, (Ky. ) 318; Andrews v. Word, 17 B. Mon. (Ky.) 520; Porter v. Noyes, 2 Greenl. (Me.) 22 ; Brown v. Gam- mon, 14 Me. 276; Hill v. Hobart, 16 id. 164 ; Swan v. Drury, 22 Pick. (Mass.) 488 ; Mead v. Fox, 6 Cush. (Mass.) 202 ; Dwight v. Cutler, 3 Mich. 575 ; Green- wood v. Ligon, 10 Sm. & Marsh. (Miss.) 615 ; Feemster v. May, 13 id. 275 ; Mob- ley v. Keys, id. 677 ; Luckett v. Wil- liamson, 31 Mo. 54 ; s. c. 37 id. 395 ; Herryford v. Turner, 67 id. 296 ; Carter v. Alexander, 71 id. 585 ; Little v. Paddle- ford, 13 N. H. 167 (settling the doubt sug- gested in Beach v. Steele, 12 id. 89) ; Gil- christ v. Buie, 1 Dev. & Bat. Eq. (N. C.) 347 ; Lee v. Foard, 1 Jones Eq. (N. C.) 127; Pugh v. Chesseldine, 11 Ohio, 109; Cameron v. Carter, 9 Ont. 426 ; Collins v. Delashmutt, 6 Ore. 51 ; Sanford v. Wheeler, 12 id. 301 ; Dearth v. Williamson, 2 Serg. & Rawle, (Pa.) 498 ; Romig v. Romig, 41 C on 2-] THE USUAL COVENANTS. [CHAP. IT. were considered and Gazley v. Price was directly overruled, 1 and the latest decisions in that State have adhered to this ruling. 2 It is possible that some cases which seem to be not in harmony with others may be reconciled by reason of the peculiar words of the contract. 3 The rule of construction of such cases is sufficiently obvious. It is familiar that the general principles of the contract of sale, both in this country and in England, recognize and enforce, while it is still executory, the right of a purchaser to a title clear of defects and incumbrances. This right is one not growing out of the agreement of the parties but is given by the law, 4 and it naturally follows that a court of equity will not decree the specific per- formance of a contract where the title is bad or even doubtful. 5 Hence, when an incumbrance exists which it was not agreed should enter into and form part of the consideration, the vendor must discharge it before he can call for a completion of the sale. 6 2 Rawle, (Pa.) 249 ; Eby v. Eby, 5 Pa. 466 (see Moore v. Harrisburg Bank, 8 Watts, Pa. 149) ; Colwell v. Hamilton, 10 Pa. 415 ; Wilson u. Getty, 57 id. 270 ; Cunningham v. Sharp, 11 Humph. (Tenn.) 120 ; Vardeman v. Lawson, 17 Tex. 16 ; Jones v. Phillips, 59 id. 610 ; Stow v. Stevens, 7 Verm. 27 ; Lawrence v. Dole, 11 id. 549 ; Joslyn v. Taylor, 33 id. 470; Goddin v. Vaughn, 14 Gratt. (Va.) 117; Christian v. Cabell, 22 id. 82; Da- vis v. Henderson, 17 Wis. 106 ; Watts v. Waddle, 1 McLean, (C. C. U. S.) 200. In New Jersey, after some little variation of decision (Johnson v. Smock, Coxe, 106 ; Barrow v. Bispham, 6 Hals. 110 ; Tindall v. Conover, 1 Spen. 214), the law is now considered as settled "in harmony with tin' weight of authority." Tindall v. Cono- ver, 1 Zabr. 654 ; Lounsbery v. Locan- der, 25 N. J. Eq. 557. 1 Pomeroy v. Drury, 14 Barb. S. C. (X. Y.) 42J, the court saying, "I think it may be safely said that Gazley v. Price and Parker v. Parmelee are no longer authori- ties for holding that a covenant to convey lands by warranty deed on a sale refers only to the form and sufficiency of the deed, and not to the title conveyed." The decis- ions in question had also been virtually over- ruled in Fletcher v. Button, 4 Comst. 400. 2 Hill v. Ressegieu, 17 Barb. S. C. 42 (N. Y.) 164; Atkins v. Bahrett, 19 id. 639 ; Burwell v. Jackson, 5 Seld. 536 ; Penfield v. Clark, 62 Barb. 584 ; Morange v. Norris, 3 Abb. App. Dec. 314. 3 Such as in Brizzolara v. Mosher, 71 111. 41 ; Fitch v. Willard, 73 id. 92 ; Al- len v. Atkinson, 21 Mich. 361 ; Baxter v. Audrey, 41 id. 13 ; Harrison v. Guerin, 27 N. J. Eq. 219. Thus an agreement to convey all the vendor's interest in a certain lot ' ' meaning the same interest which was deeded to him by P." was held to bind the vendor only to a conveyance of that interest ; Babcock v. Wilson, 17 Me. 372 ; and see the distinction noticed in Joslyn v. Taylor, 33 Verm. 475. 4 Souter v. Drake, 5 Bam. & Adolph. 999, per Denman, C. J. ; Doe v. Stanion, 1 Mees. & Welsh. 701 ; Burwell v. Jackson, 5 Selden, (N. Y. ) 536 ; Shreck v. Pierce, 3 CI. (Io.) 360 ; Sugd. on Vend. (14th ed.). 5 The rule in equity as to not compel- ling a purchaser to take "a doubtful title " was said in Marlow v. Smith, 2 P. Wms. 201, to be as old as Sir Joseph Jekyl's time, and in Sloper v. Fish, 2 Ves. & Beames, 149, it was said to have been re- peatedty acted on by Lord Hardwieke. See the notes to Seton v. Slade, 2 Lead. Cas. in Eq. (5th ed.) 501. « Sugd. on Vend. (14th ed.) 548; Cameron v. Carter, 9 Out. 426. § 33.] THE USUAL COVENANTS. [CHAP. II. The law, then, recognizing prima facie a necessary implication of a good title in every contract for the sale of real estate, it follows that an agreement by which such a settled rule is to be waived should be unequivocally expressed, and as the law further recognizes the purchaser's rights to covenants for the title, it is difficult to perceive how an agreement to convey " by a sufficient warranty deed" (or words of similar import) can weaken that which is implied from the mere relation of vendor and pur- chaser. 1 § 33. The second class of vendors is that of fiduciary vendors, such as trustees, executors (whether selling in exercise of a power or under authority of a decree), mortgagees, assignees of bank- rupts, insolvents, and the like. As to the " usual covenants " to be given by them, there being an obvious difference between this class of vendors and those who sell in their own right, the practice is perhaps equally well settled on both sides of the Atlantic, and the rule may be said to be a general one that from a fiduciary grantor, having either no inter- est in the subject of the sale or merely a naked legal title, the grantee is entitled to no covenants but that the grantor has done no act to incumber the estate, which is generally called the "usual trustee covenant ; " 2 it being evident that few persons could be found to act in a fiduciary or representative capacity if they were compellable to enter into covenants of greater scope ; 3 nor can 1 Vardeman v. Lawsou, 17 Tex. 16. Fleming v. Holt, 12 W. Va. 162 ; and 2 Infra, p. 44. see the cases cited infra, and where in 8 The rule with respect to trustees and Atty. Gen. v. Morgan, 2 Eussell, 306, the executors may be found in Staines v. Mor- court cancelled a lease as having been im- ris, 1 Ves. & Beames, 10 ; Worley v. properly granted by trustees of a charity, Frampton, 5 Hare, 560 ; Worthy v. John- it refused, on the application of the lessee, son, 8 Ga. 236 ; Eedwine v. Brown, 10 to suffer the covenants of the trustees to id. 311 ; Aven v. Buckom, 11 id. 1 ; remain. Chastain v. Staley, 23 id. 26 ; Bracken- It is presumed, however, that where ridge v. Dawson, 7 Ind. 387 ; Dwinel v. the vendor had an interest as well as a Veazie, 36 Me. 509 ; Sumner v. Williams, power, he would always be obliged to cove- 8 Mass. 201 ; Hodges v. Saunders, 17 nant personally to the extent of that inter- Pick. (Mass.) 476; Barnard v. Dun- est. Barton's Conv. 73 ; Hare v. Buries, can, 38 Mo. 181 ; Ennis v. Leach, 1 4 Kay & Johns. 57. It might be thought Ire. Eq. (N. C.) 416; Shontz v. Brown, reasonable that fiduciary vendors should 27 Pa. 134 ; Grantland v. Wight, 5 covenant for further assurance, but the Munf. (Va. ) 295 ; Allen v. Winstow, practice has been otherwise, Barton's Conv. 1 Band. (Va.) 71 ; Goddin v. Vaughn, 70, and it has been recently settled that 14 Gratt. (Va.) 102; and with regard this cannot be exacted of them. Worley v. to assignees, in Wilkins v. Fry, 1 Mer. Frampton, 5 Hare, 560. It has, however, 244 ; White v. Foljambe, 11 Ves. 345 ; been held that if trustees under a will 43 34.] THE USUAL COVENANTS. [CHAP. II. any covenants for title be implied against them from any words of grant or leasing. 1 The form of a trustee covenant in the Conveyancing and Law of Property Act, 1881, (by which certain covenants are implied from the words of grant,) is as follows : " That the person so conveying has not executed or done, or knowingly suffered, 2 or been party or privy to, 3 any deed or thing, whereby or by means whereof the subject-matter of the conveyance, or any part thereof, is or may be impeached, charged, affected, or incumbered in title, estate, or otherwise, or whereby or by means whereof the person who so conveys is in any wise hindered from conveying the subject- matter of the conveyance, or any part thereof, in the manner in which it is expressed to be conveyed." i § 31. But although other covenants cannot be demanded from a fiduciary vendor, yet it is the practice in England for the purchaser to insist on covenants from the parties beneficially interested in the purchase money, at least in the case of cestuis que trust. 5 The practice of the profession, however, as to this, come into equity to compel specific per- formance by the vendee of a contract made with their testator as vendor, they will be compelled to covenant for the title in the same manner as he was to have done. Page v. Broom, 3 Beavan, 36. So, too, it has been held that the executors of one who had agreed to take a lease may, if they admit assets, be compelled to enter into a lessee's covenants, so qualified as to restrict their liability to that which they would have incurred had the lease with corresponding covenants been executed by their testator. Philips v. Everard, 5 Si- mons, 102 ; Stephens v. Hotliam, 1 Kay & Johns. 571. "These decisions," says Dart, " are, perhaps, difficult to be recon- ciled with that in Worley v. Frampton, and seem to consist better with the gen- eral principle of equity that persons who agree to stand in the place of another represent his liabilities as well as his rights. They also suggest whether the personal representatives of a deceased ven- dor or purchaser might not be required to join in the conveyance, and, to the extent of the assets, to enter into special cove- nants which the deceased had agreed to enter into." Dart on Vend. (5th ed.) 551. 44 1 Dow v. Lewis, 4 Gray, (Mass.) 473 ; Webster v. Conley, 46 111. 14. In Knipe v. Palmer, 2 Wilson, 130, it seems to have been thought that where the committee of a lunatic, having no power either in that case or at common law to lease the lands of the lunatic, nevertheless did so, he would be liable on the covenant implied by the word demise, but this comes within another rule which is considered infra. 2 The benefit of the word " suffered " is shown in Rowley v. Bent, L. R. 3 Eq. 761. 3 The importance of the phrase "being party or privy to " is shown by Hobson v. Middleton, 6 Barn. & Cress. 295, where it was held that the fact of the covenantor having assented to an act which he could not prevent, was not a breach of a covenant that he had not "permitted or suffered any act, matter, or tiling," &c. In the re- cent case of Clifford v. Hoare, L. R. 9 C. P. 362, judgment was given for the de- fendant upon another point, but the court was of opinion that but for this he would have been liable as "party or privy " to the act complained of. * L. R. xvii. Stat. 119. 6 And such was distinctly required in the recent case in Illinois of Crabtree v. 34.] THE USUAL COVENANTS. [CHAP. II. was not for some time enforced or even recognized by the Court of Chancery, 1 and it has not been until recently that it has at Levings, 53 111. 526. "It always has been, and still is, the practice of the pro- fession," says Sugden, "to make all the cestuis que trust whose shares of the pur- chase money are in any wise considerable, join in covenants for the title according to their respective interest." "A bank- rupt," he continues, " is generally made a party to the conveyance of his estate, to prevent the difficulty which the purchaser might otherwise be put to in maintaining and proving the title, and the bankrupt is generally made to enter into covenants for title in the same manner as he would have done had he sold the estate while solvent." Sugd. on Veud. (14th ed. ) 574, 575. It seems, however, that the bank- rupt cannot be compelled to do this, and his concurrence is rather matter of favor than of right ; Ex parte Crowder, 2 Rose, 327 ; Waugh v. Land, Cooper, 132 ; Sugd. on Vend. (14th ed.) 575 ; and it is ap- prehended that this would equally apply to conveyances made by assignees for the benefit of creditors under insolvent laws. " Upon a sale by trustees," says Davidson, " under a will for general purposes, or by order of court, the purckaser is not en- titled to any covenant for title but that against incumbrances, except (in the case of a will) when the purposes to which the purchase money is primarily applicable have since been satisfied, so that the sub- stantial owners are in fact ascertainable ; in practice, however, it is usual in every case to insert covenants by the parties who are beneficially entitled in any consider- able amount to the residue of the purchase money." 2 Dav. Con. (2d ed.) 203, note. In Tennessee it is provided by statute, that " where a sale of the real estate of a decedent is made by decree of court for the payment of debts, where the sale is made at the voluntary instance of parties, the decree or deed of the clerk shall imply a covenant of seisin, and warranty of title by the parties whose interest is sold, their heirs and representatives, unless otherwise provided in the face of the decree." Code of Tennessee, 1884, p. 922, sec. 4880. 1 The practice was condemned by Lord Loughborough in "Wakeman v. Duchess of Rutland, 3 Vesey, 233, 504, affirmed on appeal, 8 Brown's Pari. Cas. 145. The decision was, however, against the opinion of the profession, and is according to Sug- den by no means an authority that cestuis que trust of money to be produced by the sale of estates devised to trustees to sell cannot in any instance be required to cove- nant for the title. " Where the money to arise by sale of the estate is absolutely given to two or more persons, they are substantially owners of the estate and must accordingly covenant for the title. So, even where the money is in the first place to be applied in payment of debts, yet if they are all paid previously to the sale, the cestuis que trust must, it is conceived, covenant for the title." Sugd. on Vend. (14th ed.) 574, 575. It may, moreover, be observed that Wakeman v. Duchess of Rutland was to some extent against the views expressed by Lord Hard- wicke in Loyd v. Griffith, 3 Atkyns, 264, which case is, however, criticised by Mr. Piatt, who says it appears to have been decided "rather with reference to particu- lar circumstances than from any general principle." Piatt on Covenants, 393. Dart considers that the above proposition of Sugden is too broadly stated. " Sup- pose that a testator devises an estate to trustees in trust to sell, and with power to give receipts, and to divide the proceeds among his children all of whom are sui juris. Here the beneficiaries, if all wish so to do, may elect that there shall be no sale, but to take the land as real estate. Any of the beneficiaries may, however, re- quire the trustees to proceed to a sale, even against the wishes of their co-benefi- ciaries. Admitting that those who agree to a sale and join in the contract are bound to concur in the conveyance and to cove- nant for title to the extent of their inter- ests, it does not occur to the writer that there is any mode by which the dissen- tients can be compelled so to concur and covenant. Nor does he conceive that if they refuse so to do their refusal would entitle the purchaser to rescind the con- 45 34.] THE USUAL COVENANTS. [CHAP. II. all received judicial approbation, 1 It would seem that the cor- rect test of the application of such a rule would be the extent of the purchaser's liability to see to the application of the pur- chase money. 2 And somewhat lately, on a sale made under a decree, of real estate vested in trustees whose receipt was to be a good discharge, in order to divide the proceeds among the ben- eficiaries, it was distinctly held that the latter, notwithstanding tract. If so, the inability of trustees for sale to procure the concurrence of all the beneficiaries amounts, in reality, to a defect in title." Dart on Vend. (5th ed.) 546. 1 In the case of the London Bridge Acts, 13 Simons, 176, lands were devised to A. for life, remainder to B. for life, re- mainder to his sons successively in tail male. A. and B. during the infancy of B.'s eldest son obtained an act of Parlia- ment, vesting the estate in trustees in trust to sell, and the Vice- Chancellor " appre- hended that where the only persons who were immediately interested in the estates were tenants for life, it was the usual course to make them covenant for the title ; that the tenants for life in this case stood in the same situation as if there had been a power to sell the estates with their consent, in which case it would be a mat- ter of course for them to enter into the covenants." See also Page v. Broom, 3 Beavan, 35. In Barnard v. Duncan, 38 Mo. 182, this sentence was quoted, and the court added, ' ' The matter would seem to depend upon the jurisdiction of a court of equity in a proper case, as where one of the parties should come into court to enforce specific performance against the other." - Sugden says, ' ' "Where an estate is sold by trustees under a will, and the money is to be applied in payment of debts, &c, and the residue is given over, a purchaser is not entitled to any* cove- nants for the title, because no line can well be drawn as to the quantum which would make a person liable to covenant. The same rule applies ex necessitate where an estate is sold for similar purposes under an order of a court of equity." Stigd. on Vend. (14th ed.) 574; and in a former edition he says, " If a different rule pre- 46 vailed, the consequence would be that the estate could never be sold by decree till the account was taken of all the debts ; because before that account was taken it could not appear who were to join in the conveyance, what was the number, and in what proportions they were beneficially entitled ; but it is the constant practice to sell the estate in the first instance ; of course the title can be made only by the trustees for sale, without calling on the parties who are presumptively beneficially interested." There would seem to be some reason why in America cestuis que trust should not be compellable to enter into covenants for title, which is, that the English doctrine, which in many cases obliges the purchaser to see to the applica- tion of the purchase money, is less regarded here (see the note to Elliot v. Merryman, 1 Lead. Cases in Eq., 4th Am. ed.,' 109), and the purchaser is therefore in less need of these covenants as a protection against the future claims of the parties beneficially interested, though as regards claims under an adverse paramount title it is obvious that this reason cannot apply. The passage in the text was cited in Hillr. Ressegieu, 17Barb.S.C.(N. Y.) 167, where it is said, " That liability [to see to the application of the purchase money] does not now extend to payments to the trus- tees made in good faith ; 1 Rev. Stat. 730, 10 Paige, 282 ;" and it was held that where a vendor having covenanted to convey land free of all incumbrance died, leaving a widow and three heirs, one of whom was an infant, the infant was decreed to con- vey but without covenants, and the adult heirs were decreed to convey with cove- nants against their own acts. The same point as to covenants by infant heirs was decided in Hyatt v. Seeley, 1 Kern. (TST. Y.) 56. 35.] THE USUAL COVENANTS. [chap. II. the practice of the profession, were not bound to covenant for the title. 1 But still more recently it seems to have been thought that this must be confined to the case of a sale under a decree. 2 It may be doubted, however, if this be the true test. 3 § 35. The question of the purchaser's right to covenants for the title from an agent acting under a power of attorney from his principal, has often arisen in cases where in a suit against the latter upon covenants made on his behalf by the agent the right so to bind the principal has been denied. In an early case in New York, it was assumed that as a deed without any covenants for the title was sufficient to pass the estate to the purchaser, the latter had no right to demand these covenants, and hence it was said that a power of attorney to sell and convey land, ex- pressed in the usual form, implied no power to covenant for the title ; 4 but the correctness of these decisions has often since been i Cottrell v. Cottrell, L. R. 2 Eq. 330. "The purchaser has established," said Stuart, V. C, "that according to the practice of conveyancers he would be en- titled to covenants for title from the ben- eficiaries. But it is equally clear that it is an oppressive practice and has not been adopted by this court as to sales made under its decree. The beneficiaries under a will are not contracting parties but mere volunteers, and it seems an arbitrary thing to hold that a legatee is to take nothing from the bounty of the testator until he has entered into covenants for title and possibly has been put to consid- erable expense." 2 Earl Poulett v. Hood. L. R. 5 Eq. 115, Romilly, M. R. In that case, how- ever, there was a tenant for life, as In re London Bridge Acts, supra, who, "find- ing that a sale of the term under the de- cree was not so advantageous, chose instead of that to sell under the power. Taking that course, he must take it with all the incidents, and one of them is that the tenant for life must covenant for the title." 3 And, says Dart, "These questions upon sales under the decree or by the di- rections of the court are, according to the present practice, usually precluded by a special condition. And even in the case of private sales, it may be doubted whether the practice of conveyancers could be altogether enforced." Dart on Vend. (5th ed.), 546. 4 Nixon v. Hyserott, 5 Johns. (N. Y. ) 58. " The attorney was authorized," said the court, "to sell and to execute conveyances and assrirances in the law of the land sold, but no authority was given to bind the principal by covenants. A conveyance or assurance is good and perfect without either warranty or personal covenants, and therefore they are not necessarily implied in an authority to convey ; an authority is to be strictly pursued and an act vary- ing in substance from it is void ; " and to the same effect are Ryder v. Jenny, 2 Rob. (N. Y.) 68, and Howe v. Harrington, 3 C. E. Gr. (N. J.) 496. In Van Eps v. Schenectady, 12 Johns. (N. Y.) 436, Nixon v. Hyserott was approved, and it was held that a conveyance was perfect without any covenants for the title, and this was also the decision in Fuller v. Hubbard, 6 Cow. 22, and Willis v. Astor, 4 Edw. Ch. 595 ; and these cases have been approved in Connecticut ; Mead i\ Johnson, 3 Conn. 592 ; Dodd v. Seymour, 21 id. 480. Such a conveyance is certainly sufficient to pass the estate of the grantor, but is not, it is conceived, all that the purchaser has a right to expect. " The title is one thing. the covenants are other things, intended as a support of the title." Osborne v. 47 § 36.] THE USUAL COVENANTS. [CHAP. II. denied, and it is established by the weight of authority that as the law recognizes the right of a purchaser to covenants for the title from the principal it will not suffer that right to be defeated by the mere delegation by him of authority to consummate the contract. 1 Where, however, that authority is restricted in terms so express as to control that which the law otherwise implies, the rights of the purchaser will of course be limited by the letter of the instrument. It is, however, a familiar rule that in general when parties contract en autre droit and bind themselves personally and fail to bind their principals, they are held personally responsible, 2 and the rule applies a fortiori to contracts under seal. This gen- eral doctrine was applied in England in a case 3 where one having covenanted on behalf of another to pay the purchase money of certain property he was held personally liable ; the court holding that it was impossible to contend that where one covenants for another he is not to be bound for it, and the covenantee might prefer the security of the covenantor to that of his principal. 4 § 36. In this country it has often happened that fiduciary vendors have, perhaps from inadvertence, entered into covenants for title of greater scope than the law exacts of them, and in such cases it is well settled that the covenants are personally binding upon them. Thus where in a case in Massachusetts 5 the grantors " in their capacity as administrators " covenanted that they, ad- ministrators as aforesaid, were lawfully seised of the premises, that they were clear from all incumbrances except a certain mortgage and a right of dower, that they had, in their said capa- city, good right to sell, and that as administrators aforesaid they would warrant and defend the premises, it was held that the cove- McMillan, 5 Jones Law, (N. C.) 109. and Knipe v. Palmer, 2 Wilson, 130, cited See mpra, § 18 ; Kyle v. Kavanagh, 103 supra, p. 44, n. 1. Mass. :;."!•. 3 Appleton v. Binks, 5 East, 148. 1 Vanada v. Hopkins, 1 J. J. Marsh. 4 See to the same effect, Burrell v. (Ivy.) 293; Hedges v. Kerr, 4 B. Mon. Jones, 3 Barn. & Aid. 47; Kennedy v. (Ky.) 528 ; Ward v. Bartholomew, 6 Pick. Gouveia, 3 Dowl. & Ry. 503 ; Norton v. (Mass.) 410; Branson v. Coffin, 118. Herron, 1 Car. & Payne, 648. Of course, Mass. 161 ; Hunter v. Jameson, 6 Ire. when the principal is bound, the agent or (X. C.) 2;12 ; Peters v. Famsworth, 15 attorney is not. Kent v. Chalfant, 7 Verm. 155 ; Rueker v. Lowther, 6 Leigh, Minn. 491. (Va.) 259; Le Roy v. Beard, 8 How. 6 Sumner v. Williams, 8 Mass. 162. (S. C. U. S.) 451 ; Taggert v. Stanbury, There had been previous cases in that 2 McLean, (C. C. U. S.) 543. State to the same effect ; Thacher v. Dins- 2 See Story on Agency, § 263 et seq., more, 5 id. 299; Forster v. Fuller, 6 id. 59. 48 § 30.] THE USUAL COVENANTS. [CHAP. II. nantors were personally bound to pay, out of their private estates, damages arising from an eviction of the covenantees. There could be no doubt, it was said, that the grantors did not intend that there should be any recurrence to themselves, and that they observed peculiar caution to avoid any idea of personal liability ; and further, that the nature of the transaction, the character in which the grantors contracted, and the language of the instru- ment concurred in proving that such was the intention of both parties, while at the same time it must be confessed equally clear that both parties believed that the covenants were to be effectual in case of an interruption of the estate supposed to be granted, though probably neither of them contemplated the happening of such a contingency. On the occurrence of that contingency, how- ever, the court was reduced to the alternative of pronouncing the covenants to be void and wholly ineffectual, 1 or of giving them operation against the defendants in their personal and individual capacity, and, however hard the alternative might be in subject- ing the administrators to the payment of damages contrary to their intention, still it was said that the principle was one too deeply rooted to be unsettled. It was, moreover, well remarked, that while an administrator was not required by any duty of his office or trust to enter into a personal covenant for the perfection of the title or for the validity of the conveyance, beyond his own acts, yet it would be admitted that he was at liberty to do so if he chose thus to excite the confidence of purchasers and to en- large the proceeds of the sale, and that he might be competent to engage his own credit collaterally in the conveyance. The rule thus stated is supported by many authorities, and by well-estab- lished principle. 2 1 That a covenant for title made by an bind the estate by any warranty in any administrator will not bind the estate is conveyance or contract made by him, nor well settled ; Worthy v. Johnson, 8 Ga. is he personally bound by such covenant 236 ; Mason v. Ham, 36 Me. 573 ; Os- unless the intention of personal liability borne v. McMillan, 5 Jones L. (N. C.) is distinctly expressed," Code, § 2563, 109 ; Klopp v. Moore, 6 Kans. 30 ; Lock- and the provision seems to apply to all wood v. Gilson, 12 Ohio, 529 ; Shontz fiduciaries ; Clark v. Whitehead, 47 Ga. v. Brown, 27 Pa. 134 ; Mabie v. Mat- 521 ; Shacklett v. Rawson, 54 id. 353. teson, 17 Wis. 11 ; and the same is true So as to sales under judicial process : "No as to the right of trustees to bind the covenant of warranty binds him (the officer corporation which they represent unless or his agent) individually, unless made expressly authorized so to do ; Klopp v. with that intention and for a valuable Moore, sii]Jra. In Georgia, it is provided consideration." Code, § 2622. by statute that " An administrator cannot 2 Craddock v. Stewart, 6 Ala. 77 ; Coe 4 49 §37.] THE USUAL COVENANTS. [CHAP. II. § 37. As to the third class of vendors, namely, ministerial ven- dors, such as sheriffs, marshals, tax collectors, and the like, it is obvious that no express covenants for title of any kind can be v. Talcott, 5 Day, (Conn.) 92 ; Mitchell v. Hazeu, 4 Conn. 495 ; Belden v. Seymour, 8 id. 24 ; Sterling v. Feet, 14 id. 245 ; Aven v. Beckom, 11 Ga. 1, where the sub- ject is elaborately considered ; Mason v. Caldwell, 5 Gilm. (111.) 196 ; Foster v. Young, 35 la. 27 ; Klopp v. Moore, 6 Kuns. 30 ; Graves v. Mattingly, 6 Bush, (Ky.) 361 ; Stinchfield v. Little, 1 Greenl. (Me.) 231 ; Glenn v. Allison, 58 Md. 527; Whiting v. Dewey, 15 Pick. (Mass.) 433 ; Douahoe v. Emery, 9 Mete. ( Mass. ) 66 ; Mellen v. Boarman, 13 Sm. & Marsh. (Miss.) 100 ; Murphy v. Price, 48 Mo. 247 ; Holyoke v. Clark, 54 N. H. 578 ; Godley v. Taylor, 3 Dev. (N. C.) 178; and see Osborne v. McMillan, 5 Jones L. (N. C.) 109; Lockwood v. Gilson, 12 Ohio, 529 ; Welsh v. Davis, 3 S. Car. (n. s.) 110 ; Taylor v. Harrison, 47 Tex. 454 ; Mabie v. Matteson, 17 Wis. 11 ; Duvall v. Craig, 2 Wheat. (S. C. U. S.) 56 ; Taylor v. Davis, 110 U. S. 330. Also an article in 7 Southern Law Rev. (n. s.) 832. Thus where an administratrix of her deceased husband conveys the land of the estate under order of court and cove- nants for the title, although she is not bound so to covenant, yet having done so the covenants will estop her from claiming dower in the land. Megee v. Mellon, 23 Miss. 586. And so as to a guardian, in Foster v. Young, supra. It has, however, been held that where the covenantor expressly declares that his liability sball be no more than coextensive with his fiduciary capacity he will not be personally bound, even although the covenants carry with them no protection whatever to the covenantee. Thus in Thayer v. Wendell, 1 Gall. (C. C. U. S.) 37, Story, J., held that a covenant by an executor, in his " capacity of executor and not otherwise," created no personal liabil- ity, and that no man acting fairly and openly in alieno jure and not otherwise can be made answerable in his private capacity upon the contract. So where, in Day v. Browne, 2 Ohio, 347, the covenant 50 was that the grantors would warrant and defend, "as executors are bound by law to do," the distinction was taken that, in the cases above referred to, the words executor, trustee, &c. amounted only to matter of description, but that as execu- tors were not bound in that State to war- rant at all, the words were used to qualify their responsibility. So, in Manifee v. Morrison, 1 Dana, (Ky.) 208, where ex- ecutors covenanted to warrant " to the extent of their assets," it was held that the covenant imposed no obligation on them individually, nor beyond the assets in their hands at the time of the eviction, and the previous case of Nicholas v. Jones, 3 A. K. Marsh. (Ky.) 385, had been to the same effect ; and in such cases there will be no estoppel as to any individual right or estate which the fiduciary vendor may have ; Wright v. De Groff, 14 Mich. 168. This principle was carried beyond former cases in Glenn v. Allison, 58 Md. 527, where the court denied the personal liability of a trustee upon his full cove- nants for title in a mortgage which recited the authority to borrow money conferred on the trustee by the deed of trust, hold- ing that under such circumstances it was but fair to presume the money was loaned on the faith of the trust estate, and not upon the covenants of the mortgagor. The distinction between these two classes of cases may perhaps be, that, as every restriction of liability implied in the fiduciary character of the vendor is nega- tived by the insertion of full vendors' cove- nants, the purchaser is entitled to rely on these covenants unless their force is re- strained either expressly or by necessary implication arising outside the capacity in which the covenantor conveys. A cove- nant by a part owner, to the extent of his share, obviously binds him no further than to that extent ; Coster v. Manufac- turing Co.,1 Green's Ch. (N. J.) 467 ; and it is done every day by tenants in com- mon. See supra, § 25. § 37.] THE USUAL COVENANTS. [CHAP. II. demanded from them, 1 nor can they be implied from any words of grant or leasing. 2 Nor of course can any covenants be re- quired from the sovereign power, whether represented by the Crown 3 or the Commonwealth. 4 i The Monte Allegre, 9 Wheat. (S. C. U. S.) 616 ; Rocksell v. Allen, 3 McLean, (C. C. U. S.) 357 ; Corbitt v. Dawkins, 54 Ala. 282 ; Loudon v. Robertson, 5 Blackf. (Ind.) 276; Stephen v. Ells, 65 Mo. 456 ; Friedly v. Scheetz, 9 Serg. & Rawle, (Pa.) 156 ; Rogers v. Horn, 6 Rich. (S. C.) 361 ; Mitchell v. Pinckney, 13 S. Car. 203. In Gibson v. Mussey, 11 Verm. 212, and Wilson v. Cochran, 14N. H. 397, where a tax collector had, in pursuance of a statutory form for deeds to be executed by such officers, entered into personal covenants for the title, it was held that they were not binding on him, he having been obliged to follow the statutory prece- dent. For a reference to such statutory precedents, see Stimson's Amer. Statute Law, § 1489 et seq. 2 Dow v. Lewis, 4 Gray, (Mass.) 473 ; supra, p. 44, n. 1. 3 Dart on Vend. (5th ed.) 552. 4 State v. Crutchheld, 3 Head, (Tenn.) 113. It has, however, been held that where the Commonwealth has conveyed to an alien, with covenants of warranty, she will be estopped to set up the alienage as ground of escheat. Commonwealth v. Andre, 3 Pick. (Mass.) 224. See infra, Ch. XI. 51 38.] THE COVENANT FOR SEISIN. [CHAP. III. CHAPTER III. THE COVENANT FOR SEISIN. 1 § 38. From an early day title was defined to be the means whereby the owner of land has the just possession of his prop- erty ; 2 and in order that this should be complete, there was re- quired juris et seisince conjunction It was a favorite object of the common law — long before the Conquest — that possession of land and its transfer should be open and notorious, and the livery of seisin, which was the mode of transfer long before the introduction of deeds, was made in the presence of witnesses. And when later, though still in Saxon times, deeds came into use, these were the mere authentication of the transaction. 4 When, with the Conquest, came the feudal system, this seisin denoted the completion of that investiture by which the vassal was admitted to the fief, and without it no freehold could be constituted or pass. 5 In this sense seisin was synonymous with possession, and was usually termed seisin in deed or actual seisin. There was also a virtual or constructive seisin, such as that of the possession of a tenant for years, which was deemed to be also the possession 1 For the form of the covenant, see into rise it was the custom to transact all supra, p. 23, n. 3, and p. 28, n. 3. It has conveyances at the county court and enter already been seen, supra, Ch. II., that a memorial of them in the leger book of in England since the introduction of the some adjacent monastery, and these grad- practice in conveyancing of "dower uses " ually became the depositaries of the char- the covenant for seisin has dropped out of ters or title deeds of the great landed use and has been superseded by the cove- proprietors. All such deeds as could be nant for good right to convey. Two of found were destroyed by William the Con- the latest cases in the reports in which queror, as part of his policy that all titles the covenant for seisin is found are Giles should commence from himself. v. Roe, 2 Dickens, 570, in Lord Thurlow's 5 Butler's note to Co. Litt. 366 b ; time, and Howell v. Richards, 11 East, Taylor v. Horde, 1 Bur. 107. To this 041 (a. d. 1809). there was a single exception, the case of 2 Co. Litt. 345 b ; 2 Black. Com. 195. a fine, the reasons for which are clearly 3 It was also called jus duplicatum or stated in 1 Cruise on Fines and Recoveries, droit droit. Co. Litt. 266. 1. See also the Book of Fines, printed by * It is familiar that after their coming the Record Commissioners in 1835. 52 § 40.] THE COVENANT FOR SEISIN. [CHAP. III. of the owner of the reversion. Then too there was a seisin in law, as where after a descent the heir, who had the right of possession though he might not have actually entered, yet was deemed, for some purposes at least, seised of the estate of his ancestor. 1 § 39. It has been already said that warranty, which was the covenant for title of those days, partook in its origin of the sim- plicity of the early common law, 2 and was intended to assure the title, in its strict definition ; that is, the union of the right and the possession — the jus and the seisina? § 40. With the passage of the statute of Uses came those con- veyances which taking effect under it rendered the livery of seisin no longer necessary, and in the course of the change from the ancient to the modern system of law which was going on during the century and a half which elapsed between the end of Henry the Eighth's reign and the restoration of Charles, the word " seisin " seems gradually to have been looked upon less as one of the elements of title than as synonymous with title itself, and the covenant that one was seised in fee was, in the reports of that time, regarded as a covenant for the title? in contradistinction to the covenant for quiet enjoyment, which was called a covenant to assure the possession ; 5 and such a construction, though denied, as will be seen, in parts of this country, has been preserved in England to the present day. 6 In this sense, therefore, the cove- 1 At this day, the old doctrine of seisin been since generally adopted in the Eng- and disseisin, which bears the reputation Hsh cases (Jerritt v. Weare, 3 Price, 575 ; of being "one of the most obscure and Goodright v. Forester, 1 Taunt. 578 ; Doe difficult in the law " (1 Cruise on Real v . Lynes, 3 Barn. & Cress. 388), notwith- Property, 14), has lost much of its practi- standing the earnest stand made against it cal importance. It is sufficient here to by Mr. Preston and Mr. Butler ; Preston notice that in Taylor v. Horde, 1 Burrow, n Abstracts, 279 ; Butler's note to Co. 60, the principles of the common law were Litt. 330 b. In America, the cases which ably shown by Mr. Knowler to be that a are collected in the Digests under the head wrongful possession by a stranger and of "Seisin and Disseisin," have reference feoffment by him passed to the feoffee an almost exclusively to what constitutes an actual immediate estate of freehold with adverse possession under the limitation all its rights and incidents, defeasible only acts, as to which the cases are classified in by the lawful owner, whose right of entry, the note to Taylor v. Horde in Smith's however, was taken away by a descent cast Leading Cases, on the heir of the feoffee. Lord Mansfield, 2 See supra, § 8. however, held that mere acts of intrusion 3 See supra, § 12. or trespass, followed by a feoffment, could * Cooke v. Fowns, 1 Keble, 95. not thus turn the lawful owner into a 5 Gregory v. Mayo, 3 Keble, 745, 755. disseisee, unless he should elect to consider 6 Howell v. Richards, 11 Fast, 641 ; himself disseised ; and this doctrine has Young v. Raincock, 7 Com. Bench, 310. 53 § 42.] THE COVENANT FOR SEISIN. [CHAP. III. nant for seisin is synonymous with the covenant of good right to convey. 1 § 41. But as has been seen, the form in which the covenants for title are expressed is one of the marked distinctions between conveyances on the different sides of the Atlantic, and the cove- nant for seisin is, in most of the United States, briefly expressed by the words that the grantor " is lawfully seised," or " has a good and sufficient seisin," or words to that effect. 2 And at the time when these covenants were originally introduced, owing to the sense in which the word " seisin " was used, as synonymous with title, a covenant expressed in this short form had, in England, the same practical import as the longer form which succeeded it, and a covenant that one was seised, or lawfully seised, meant seised of an indefeasible estate ; in other words, it was a covenant for the title, in its technical sense. 3 § 42. But for more than half a century a different and pe- culiar construction has been given to this covenant in a few of the United States, in which it is considered that a covenant that one is " lawfully seised," or has " a good and sufficient seisin," does not require that the grantor should have an indefeasible estate, and is not broken if an actual seisin, no matter how tortious provided it be under color of title, is given to the purchaser. 4 This doctrine seems to have been first announced in Marston v. Hobbs, decided in Massachusetts in 1817, where it was said : " The defendant, to maintain the issues on his part, was obliged to prove his seisin when the deed was executed. But it was not necessary to show a seisin under an indefeasible title. A seisin in fact was sufficient, whether he gained it by his own disseisin or whether he 1 Browning v. Wright, 2 Bos. & Pull. v. Briscoe, Noy, 142 ; the word "not " in 13. They are, however, far from being the report of this last case is an evident synonymous covenants in all respects ; as typographical error. although a covenant for seisin as expressed 4 The possession of a mere trespasser, above implies a right to convey (Nervin avowed to be such, will not of course be v. Mnnns, 3 Lev. 46), yet the converse of sufficient. Thus in Wheeler v. Hatch, 12 this will by no means hold, the instances Me. 389, where the grantor was, as to one being numerous in which one has a good lot, in actual possession though without right to convey, though not seised of the claiming title, it was held by the Supreme estate which would pass by the deed. See Court of Maine (which has adopted the infra, Ch. IV. doctrine referred to in the text) that the 2 Supra, § 21, n. 3. covenant was broken. 8 Cooke v. Fowns, 1 Keble, 95 ; Gray 54 § 42.] THE COVENANT FOR SEISIN. [CHAP. III. was in under a disseisor. If at the time he executed the deed he had the exclusive possession of the premises, claiming the same in fee simple by a title adverse to the owner, he was seised in fee, and had a right to convey. If the defendant's grantor had no authority to convey the premises to the defendant, yet if, in fact, he entered under color, though not by virtue of that deed, and acquired a seisin by disseisin, by ousting the former owner, he has not broken these covenants." 1 In the next year, the same court applied this doctrine under a covenant apparently similarly worded, by deciding that a cove- nant for seisin was not broken where the grantor had, some years before the execution of the deed, entered upon the lands claiming to hold them by a grant from the Commonwealth, which posses- sion he had transmitted to the plaintiff, his grantee ; 2 and the construction thus given has been adhered to in Massachusetts, recognized and adopted in Maine and in a qualified sense in Ohio, 3 1 2 Mass. 439, Parsons, C. J. There appears to have been no argument on this point, which was decided almost inci- dentally. 2 Bearce v. Jackson, 4 Mass. 40S. "As to the other exception," said Parsons, C. J. , " it is very clear that the defendant's intestate, being in possession, claiming a fee simple in the land, was able to con- vey. So the covenant of seisin was not broken." 8 Griffin v. Fairbrother, 1 Fairf. (Me.) 91 ; Cushman v. Blanchard, 2 Gieenl. (Me.) 268, 269 ; Wheeler v. Hatch, 3 id. 389 ; Boothby v. Hathaway, 20 Me. 255 ; Baxter v. Bradbury, id. 260 ; Wilson v. Widenhani, 51 id. 567 ; Montgomery v. Reed, 69 id. 510 ; Chapel v. Bull, 17 Mass. 219 ; Wait v. Maxwell, 5 Pick. (Mass.) 217 ; Cornell v. Jackson, 3 Cush. (Mass.) 509 ; Raymond v. Raymond, 10 id. 134 ; Follett v. Grant, 5 Allen, (Mass.) 175 ; Kirkendall v. Mitchell, 3 McLean, (C. C. U. S.) 145, dictum by McLean, J. ; Backus v. McCoy, 3 Ohio, 211. "The covenant so usual in our deeds," said the court in Raymond v. Raymond, supra, " that the grantor is 'seised of the prem- ises, and that he has good right to sell and convey the same,' have long since had a judicial construction in this Com- monwealth. These covenants do not express or imply a warranty of any ab- solute title ; they relate to the actual seisin of the grantor, and that he has such possession of the premises as that he may execute a deed thereof." And see Crocker on Common Forms (2d ed. ), 60. The doctrine in Ohio differs in some re- spects from these cases. In Backus v. McCoy, supra, Sherman, J., in delivering the opinion of the court, after referring to the decision in Marston v. Hobbs, said : "This decision appears to us to be founded on sound and correct principles. If the grantor is in the exclusive possession of the land at the time of the conveyance, claim- ing a fee adverse to the owner, although he was in by his own disseisin, his cove- nant of seisin is not broken [until the purchaser or those claiming under him are evicted by title paramount]. He has a seisin in deed, as contradistinguished from a seisin in law, sufficient to protect him from liability, under his covenant [as long as those claiming under him may continue so seised]. Actual disseisin, or the actual adverse possession of the lands of another, is the commencement of a right, which by lapse of time may ripen into a perfect title in the disseisor or pos- sessor ; and during the time that the 55 §■42.] THE COVENANT FOR SEISIN. [CHAP. III. and somewhat recently approved in Illinois * and Nebraska. 2 Where, however, the covenant is expressed by the words " seised of an indefeasible estate," it of course receives the same construc- tion everywhere. 3 grantee of such disseisor remains in the undisturbed possession of the lands by reason of the conveyance of such disseisor, he cannot maintain an action upon the covenant of seisin. No breach of such covenant will have taken place if the grantor was seised in deed at the time of the conveyance, however that seisin may have been acquired. If the grantor, at the time of executing this conveyance, was in possession of the land, either as disseisor, or under color of title, it cannot be said that he was not seised of an estate in the premises." This doctrine was sub- sequently affirmed in Foote v. Burnet, 10 Ohio, 327, and Devore v. Sunderland, 17 id. 60, and in Stambaugh v. Smith, 23 Ohio, 588, was declared to have be- come a rule of property in that State. Great Western Stock Co. v. Saas, 24 id. 543. The parts in the above quotation marked within brackets draw a distinction which is not recognized by the cases referred to in the text. Marston v. Hobbs and the cases which follow it decide that if there be an actual seisin the covenant is not broken at all, that there has been and can be no breach, and that the covenant will have been fully answered even though the pur- chaser should be afterwards evicted. But Backus v. McCoy and the cases which follow it decide that where there is an actual seisin the covenant is not broken at that time ; it remains unbroken so long as the grantee or those claiming under him continue seised, and the breach is postponed until their seisin be disturbed, either actually or constructively. This course of reasoning is intended to give to the heir, the devisee, or the assignee of the covenantee, a right of action in his own name where the actual seisin has been transferred to him — a result to which the cases above cited refuse their concur- rence, as they hold that the covenant for seisin is broken, if at all, the instant it is made, becoming thereby a right of action 56 and incapable of transmission by descent or assignment See Ch. VIII. The class of cases thus referred to must be distinguished from that class to which belong Beddoe v. Wadsworth, 21 Wend. (N. Y.) 120 ; Fowler v. Poling, 2 Barb. (N. Y. ) 300 ; Slater v. Rawson, 6 Met. (Mass.) 439, &c. ; which decide that a seisin in fact is a sufficient estate to carry with it to an assignee the covenants for quiet enjoyment and of warranty ; see infra, Ch. X. It does not necessarily follow, however, that such a seisin will support a covenant for seism. In Coit v. McReynolds, 2 Rob. (N. Y.) 658, the court, while considering itself unable to understand what is meant by seisin in fact as distinguished from a seisin in law, yet deemed the case of Fowler v. Poling, siqrra, to be an authority that a mere de- feasible title will not work a breach of the covenant for seisin. i Watts v. Parker, 27 111. 229. The court was "inclined to think the doctrine held by the Supreme Court of Massachu- setts to be quite as applicable to our con- dition and to the exigencies of our State as any other, and to adopt it as a sound doctrine." The facts, however, showed that the title, as was said by the court, had ripened by twenty-six years' posses- sion into an indefeasible one (as to which see infra, § 43). The case itself was cor- rectly decided, as the action was not cove- nant brought by the purchaser, but the breach of the covenant was set up by the latter as a defence to payment of the pur- chase money ; as to which see infra, Ch. XIV. 2 Scott v. Twiss, 4 Neb. 133. 3 The distinction thus arising from the form of the covenant was noticed in Pres- cott v. Trueman, 4 Mass. 631 ; Smith v. Strong, 14 Pick. (Mass.) 132 ; Raymond v. Raymond, 10 Cush. (Mass.) 134; Collier v. Gamble, 10 Mo. 472 ; Abbott v. Allen, 14 Johns. (N. Y.) 252 ; Garfield v. Wil- liams, 2 Verm. 328 ; Pierce v. Johnson, §43.] THE COVENANT FOR SEISIN. [CHAP. III. § 43. There is one point of view from which the construction thus given to this covenant might appear to be correct. Since possession enduring for a sufficient length of time will, under the limitation acts, ripen into a good title, there would seem reason for holding that such possession should be regarded as an actual estate from the moment of its commencement, and therefore that the " seisin " which this covenant purports to assure might prop- erly be used in its old signification, and not, as has been more recently the case, as synonymous with title. 1 But some of these same cases which decide that a possession under color of title is sufficient to support a covenant for seisin as expressed above, take no distinction between such a covenant and the covenant of good right to convey. Independently of the statutes of champerty, 2 the latter covenant has no connection whatever with the possession ; it refers, as its language indi- cates, merely to the right. 3 But in an early case in Massachu- setts, 4 it was held that one who claiming to be seised had covenanted that he had " full power, good right, and lawful authority to sell," was a competent witness for his grantee in 4 id. 247. "The doctrine established in some of the neighboring States," said the court in Pierce v. Johnson, " that the covenant of seisin is satisfied by a posses- sion without title, cannot well be recon- ciled to sound reason, except when applied to the naked covenant of seisin without any words that imply any other right but mere possession." Professor Dane drew the distinction somewhat further than is supported by the authorities. "If," said he, "the grantor covenant he is seised in fee, and the issue be thereon, and he proves seisin in fact even by disseisin, he maintains the issue ; but if he covenant he ' is lawfully seised in fee,' and the issue be thereon, it is essential, to maintain the issue, he prove he was lawfully seised ; and if seised only by disseisin and wrong, the jury can- not, on this issue, find he was lawfully seised." 4 Dane's Ab. 339. The cases, however, do not draw the distinction be- tween "seised" and "lawfully seised." In most of those cited, the covenant was that the grantor was lawfully seised, the two expressions being treated as synony- mous. But the distinction is taken be- tween these expressions and ' ' indcfeasibly seised." 1 Thus in Wheeler v. Hatch, 3 Fairf. (Me.) 389, Thomas v. Perry, Pet. (C. C. U. S.) 49, and Wilson v. Forbes, 2 Dev. (N. C.) 35, it was held that the covenant for seisin was broken by an adverse pos- session under color of title. In the first of these cases there were two lots, as to one of which the grantor was in posses- sion, though without claiming title, and as to the other there was an adverse pos- session under color of title, and it was held that the covenant was broken as to both. So in Triplett v. Gill, 7 J. J. Marsh. (Ky.) 436, it was held that a covenant that the grantor had good right to convey could not be construed as a covenant for seisin, because it was notorious at the time of conveyance that there was an adverse possession. 2 The connection of this subject with the champerty acts is noticed infra, § 47 et seq. 3 See infra, Ch. IV. 4 Twambly v. Henley, 4 Mass. 441. 57 § 44.] THE COVENANT FOR SEISIN. [CHAP. III. an action against him under the paramount title, " as there was no covenant that the grantee should have a good title." So, soon after, 1 it was said " the covenant for seisin is not broken, for it was admitted that the grantor was seised ; neither is the cove- nant of a right to convey broken, for a man seised has a right to convey." 2 So in a later case, 3 where the covenants were those of good right to convey and of warranty, it was said by the court that " the covenants of seisin and of right to convey are, to all practical purposes, synonymous covenants ; the same fact, namely, the seisin in fact of the grantor claiming the right to the premises, will authorize both covenants, and the want of it is a breach of both." And still later it was said, " The covenant of a right to convey is synonymous with the covenant for seisin. The actual seisin of the grantor will support both of these covenants, irre- spective of his having a good indefeasible title." 4 Again, where in a case in New Hampshire 5 the defendant had covenanted that he was the lawful owner of the land, and was seised and possessed thereof in his own right in fee simple, and had full power and lawful authority to grant and convey the same, it was said that " each of these amounts only to a stipulation that the grantor has such a seisin that the land will pass by his deed." 6 § 44. While the doctrine that the covenant for seisin is not broken if the vendor has an actual seisin at the time of the exe- 1 Prescott v. Trueman, 4 Mass. 631. sin" is not rather larger than the old law 2 The same expression was used in gave to it (else the words jus and seisina Fitzhugh v. Croghan, 2 J. J. Marsh. (Ky.) would not have been distinguished as 429, but the word "seisin" was there used together making a perfect title, see § 38), as synonymous with title, in its old sense, yet as applied to the covenant for seisin "A complete legal title," said the court, the definition is certainly supported by all "is the j uris et scisince conjunctio, the title the authorities except those now under and possession united. This is the tech- consideration. See infra, p. 59. nical and legal import of the terms ' seised 3 Slater v. Eawson, 1 Met. (Mass.) 450, of the legal title.' ' Seisin ' means ex vi 456. termini the whole legal title. A covenant 4 Raymond v. Piaymond, 10 Cush. of seisin is broken if the covenantor have (Mass.) 134. not the possession, the right of possession, 5 Willard v. Twitchell, 1 N. H. 178, and the right, or legal title. It would, where it was said, "It is deeply to be therefore, be difficult to imagine a case in regretted that it has been so settled ; " which a party could be seised and yet not Breck v. Young, 11 id. 491 ; but in Par- have the right to sell and convey the legal ker v. Brown, 15 id. 176, these cases have title. Seisin is a nomcn gcneralissimum been overruled and the doctrine rejected ; which includes the right to sell : Omne see infra, p. 59, n. 3. majus continet in se minus.'" Although 6 See infra, § 47 et seq., for an explana- it may perhaps be doubted whether the tion of these cases, signification thus given to the word "sei- 58 §44.] THE COVENANT FOR SEISIN. [CHAP. III. cution of the deed seems to be confined to the States already mentioned, it has been strongly denied in others. From an early day an opposite doctrine was announced in Vermont, and has since been consistently adhered to. 1 In Connecticut, the Massa- chusetts decisions have been commented on with severity and their reason denied, 2 and in a somewhat early case in New Hampshire, the Supreme Court, after an able argument in opposi- tion to the doctrine of actual seisin, repudiated it altogether, 3 over- 1 In the early case of Catlin v. Hurl- burt, 3 Verm. 407, it was said, per Hutch- inson, C. J., delivering the opinion : "The present covenant declared upon is that the grantors were well seised of the same land in fee simple, and had in themselves good right to bargain and sell the same in the manner in said deed mentioned. These expressions, and those of similar import, have always been considered in this State as amounting to a covenant of title. They have been inserted that they should be so considered. It is argued, however, that this means nothing more than that the grantors were in possession, claiming to hold in fee simple. This alteration might as well be incorporated by construction into all the covenants that decidedly relate to title in the whole deed. That they were well seised in fee simple, means that they were actually in possession, claiming to hold in fee simple. That they had good right to sell and convey, means that they claim to have such right. That the premises are free from all incumbrances, means that they claim that they are thus free. This is not the most natural and obvious meaning of the usual expressions in deeds of warranty. They say nothing about claiming. They speak of realities. Fee simple denotes a permanent estate. Well seised in fee simple denotes a seisin of a permanent estate. Such would be the most natural construction, without the aid of concurrent circumstances. But when we recollect that this deed was made and executed at a time and place when and where such expressions were univer- sally understood to relate to title, it would do injustice should we give to them a different construction." This decision has been always adhered to. Richardson v. Dorr, 5 id. 21 ; Hills v. Catlin, 22 id. 106. 2 Lock wood v. Stuidevant, 6 Conn. 385, where Hosmer, C. J., who delivered the opinion of the court, after considering that the cases of Marston v. Hobbs, &c, were inapplicable, said : " I cannot yield to them my assent. . . . Although the covenantor should have had the actual possession of the premises, and an ideal or imaginary right, founded on a supposed title that was merely colorable, yet this is not a legal seisin hi fee; and nothing short of this will support a covenant that the grantor is seised in fee simple, because nothing short of this proves the covenant to have been true. A seisin in fact of an estate in fee simple, if the word "seisin" intends anything more than possession, is an expression without meaning where there is no seisin in law. In the nature of things, there is but one species of seisin in fee, and that necessarily is the posses- sion of an estate conveyed, with such a legal iuterest as the fee simple denotes." The covenant, however, in this case was for an indefeasible estate — an expression which admits of but one construction. The case, therefore, did not call for the above remarks, as was indeed admitted. In the recent case of Comstock v. Com- stock, 23 Conn. 349, it was held that the covenant was broken if the covenantor was seised as tenant in tail only. 8 Parker v. Brown, 15 N. H. 186. "Consideration has satisfied us," said Parker, C. J., who delivered the opinion, "that the fair import of the covenant of seisin extends beyond a mere engagement that the party is seised of the land by a seisin which would be good only against another having no pretence of title. After contracting that they are the lawful owners of the premises, the grantors covenant that they are lawfully seised in their own 59 § 45.] THE COVENANT FOR SEISIN. [CHAP. III. ruling the previous decisions in that State, 1 which had, almost involuntarily, followed the train of authority in Massachusetts ; " and these latter decisions," it has been said by high authority, " contain, it is apprehended, the true rule of the common law," 2 and are certainly supported by the weight of authority. 3 § 45. In this apparent conflict of opinion, it is natural to refer to the probable reasons which have led to the adoption of the doctrine thus advocated and denied. Its origin has at times been doubted. It has been suggested that " the rule seems in some measure to have grown out of the hardship, real or apparent, of permitting a grantee to recover back the consideration money and interest, while he or his assignee is enjoying a possession that by lapse of time may ripen into a perfect title." 4 But if the doctrine of actual seisin arose from this source, courts have been forced to go further than such exigencies re- quired. For if the covenant be fully answered by the transfer of an actual, though a tortious seisin, the subsequent disturbance of the purchaser can logically give him no rights under that cove- nant, as its purpose was accomplished by the transfer of the actual seisin ; and it seems to be admitted by some of the cases that such must be the necessary consequence. 5 right in fee simple. This engagement is (N. Y. ) 1 ; Morris v. Phelps, 5 id. 49 ; certainly not satisfied in any just sense by Abbott V. Allen, 14 id. 248; Fitch v. evidence that the grantors are unlawfully Baldwin, 17 id. 161; McCarty v. Leggett, seised, without right, in their own wrong, 3 Hill, (N. Y.) 134; Mott v. Palmer, or of no fee simple except such as is 1 Comst. (N. Y.) 564; Coit v. McRey- claimed wrongfully and in disseisin of nolds, 2 Rob. (N. Y.) 655, noticed infra, the true owner. This may be a good seisin p. 75, n. 4; Pringle v. Witten, 1 Bay, (S. C.) against all but the true owner, but is not 256 ; Woods v. North, 6 Humph. (Tenn.) a°seisin in the parties' own right in fee. 309 ; Kincaid v. Brittain, 5 Sneed, (Tenn.) The grantee who takes such a covenant 119; Recohs v. Younglove, 8 Bax. (Tenn.) for his security has a right to understand 385 ; Hastings v. Webber, 2 Verm. 407 ; that his grantor transmits to him some Thomas v. Perry, Pet. (C. C. U. S.) 57; sei-sin other than one which will make him Pollard v. D wight, 4 Cranch, (S. C. U. S.) liable to the rightful action of a third per- 430. .son, the moment he enters under his deed." In England, such has always been the i Willard v. Twitchell, 1 N. H. 178; case. Gray v. Briscoe, Noy, 142 ; Howell Breck v. Young, 11 id. 491; supra, § 43, v. Richards, 11 East, 641; Young v. Kain- ],. - K cock, 7 Com. Bench, 310. 2 4 Kent's Com. 472. i Wilcox's note to Foote v. Burnet, 10 3 Martin v. Baker, 5 Blackf. (Ind.) Ohio, 327. 232; Brandt v. Foster, 5 Clarke, (To.) 287; 5 In Cushman v. Blanchard, 2 Greenl. Zent v. Picken, 54 Io. 535 ; Fitzhugh v. (Me.) 266, it was said (per Mellen, C. J.), Croghan, 2 J. J. Marsh. (Ky.) 430; see " If the grantor was seised in fact, though the remarks on the last case, cited supra, not of an indefeasible estate, and the p. 58, n. 2 ; Greenby v. Wilcocks, 2 Johns, grantee enters under his deed, then the 60 § 47.] THE COVENANT FOR SEISIN. [CHAP. III. And it will be hereafter seen, in considering the question of the measure of damages upon a breach of this covenant, 1 that a grantee is not entitled as a matter of course to recover back the consideration money and still retain the land for which it is thus deemed an equivalent. 2 Every endeavor is made, while securing to the purchaser the full benefit of his covenant, to protect the vendor from losing both the land and its price ; and it is sought, so far as is practicable, to give to the recovery of the considera- tion money, in an action on the covenant for seisin, the effect of revesting in the covenantor the title, such as it is, which he has conveyed. § 46. It is believed that a more satisfactory reason exists. It has already been said that the doctrine might well be accounted for on the ground of seisin being used as synonymous with pos- session, 3 were it not that the same construction has, in some cases, been applied to the covenant for good right to convey, which would appear to have no connection with the possession, but to be confined exclusively to the right ; the reason is, therefore, inapplicable to the latter covenant. § 47. The foundation of the doctrine must therefore be sought from another quarter, and it is believed to have sprung from the doctrine of adverse possession as connected with the champerty acts. Reference has already been made to the importance which the common law in the days of its simplicity attached to the notoriety of transfer of possession, 4 and how, some centuries after the Conquest, this was evaded by the practice of lands being held to uses ; it was secretly held and secretly conveyed, so that (so ran the preamble to the statute of Uses) 5 " Scantly any person could be certainly assured of any lands by them purchased, nor know surely against whom they should use their actions or exe- cutions for their rights, titles, and duties ... to the utter sub- version of the ancient common laws of this realm." In the same year were passed both the statute of Uses and the covenant of seisin is not broken ; but the 2 Thus if the purchaser has bought in grantee may be evicted by elder and bet- the paramount title, his damages are lim- ter title, and then the covenant to warrant ited to the amount thus paid by him. and defend is broken, and no other." So See infra, Ch. IX. in Cornell v. Jackson, 3 Cush. (Mass.) 8 See supra, § 43. 509, the court said, " A paramount title 4 See supra, § 38. does not affect a covenant for seisin." 5 27 Hen. VIII. c. 10, A. D. 1535. \ Infra, Ch. IX. 61 §47.] THE COVENANT FOR SEISIN. [CHAP. III. statute, still technically in force but practically of no effect what- ever, " For Inrollment of Bargains and Sales." x Five years later came the act commonly known as the " Pretended Title Act," 2 which further marked the design of the legislature to preserve the transfer of the possession as an ingredient of title, by prohibiting the bargain, sale, or transfer of any premises of which the party had not been in possession or received the rents or profits for a year previously, under the penalty (imposed both upon the seller and the purchaser, if he purchased knowingly) of the forfeiture of the value of the premises. " This statute," said Montague, C. J., 3 " has not altered the common law, for the common law before the statute was, that he who was out of possession ought not to bargain, grant, or let his title, and if he had done so, it would have been void ; then the statute was made in affirmation of the common law, and not in alteration of it ; and all that the i 27 Hen. VIII. c. 16. The statute of Irtrollments was limited to deeds of bar- gain and sale of estates of inheritance or freehold, and the device was soon intro- duced of a bargain and sale for a term of years followed by a release of the rever- sion, which effectually evaded the statute. "It was evidently," says Reeves, "a principal object of the makers of that act (the statute of Uses), that land should thenceforward be transferred, as anciently, by feoffment with livery of seisin and by other common law assurances, whereby the notoriety of the alienation might add stability and quiet to every man's posses- sion and right ; but it is remarkable that this very statute on the contrary con- tributed in the end to bring feoffments into entire disuse, and gave rise to a secret mode of conveying land pregnant with all the inconveniences and mischiefs before complained of. They reasoned in this manner : if he who is seised of the use becomes by the force of the statute seised of the land, then to give the use is in ef- fect to give the land ; and the facility and privacy with which this may be transacted renders it a desirable way of effecting that purpose. Upon this principle, the con- veyances before in practice were continued, legitimated :is they now were by the oper- ation of the statute upon them, and others were soon invented of the like nature. A 62 conveyance to uses became on many ac- counts the commonest and perhaps the surest mode of transferring land. These conveyances have continued in practice ever since, and to give effect to them is now one of the principal operations of the statute. The Parliament soon saw that this would be the consequence of the stat- ute, in one instance ; for if the statute executed every use that was raised, a per- son who wanted to part with his land had nothing to do but to raise a use by bar- gain and sale, as was then commonly practised, and the statute would confirm the cestui que use in the seisin of the land as fully as if there had been a transmuta- tion of possession by feoffment, fine, or recovery. To prevent the mischief of this in some degree, it was enacted by statute 27 Hen. VIII. c. 16, that no bargain and sale should enure to pass a freehold, unless the same be made by indenture, and be enrolled within six months in one of the courts at Westminster, or with the custos rotulorum of the county ; after which pro- vision, it was thought the conveyance of a use would be as notorious as the ancient common law assurances." 3 Eeeves's His- tory of the Common Law (Finlason's ed.), 384. 2 32 Hen. VIII. c. 9, § 2, a. d. 1540. 3 Partridge v. Strange, Plowd. 88. §47.] THE COVENANT FOE SEISIN. [CHAP. III. statute has done is, it has added a greater penalty to that which was void by the common law before." 1 This passage referred, of course, to the mode of conveyancing introduced by the statute of Uses. For although the com- mon law had long before declared that the transfer of a right of entry or a right of action was void, " lest there should be maintenance and stirring up of suits," 2 and the same doctrine was applied, as part of the common law, to the transfer, through the medium of the statute of Uses, of real estate of which the possession was not transferred with the right, 3 yet before that statute there could scarcely be such a thing as a transfer of land then held in adverse possession. 4 1 "It is a mistake to suppose," said Duer, J., delivering the opinion of the court in Hoyt v. Thompson, 3 Sandf. (N. Y.j 430, "that the [old] law of cham- perty is derived from the provisions of the statute, which we have re-enacted, which forbids the conveyance or sale of lands by a party out of possession. The statutory prohibition is not only a partial affirmance of a general rule of the common law. The common law forbids every transfer of a disputed title or right, whether relating to real or personal estate, by a person out of possession ; and it is manifest that the reasons of public policy upon which the interdiction is founded apply with equal force to every description of property." The doctrine here referred to is ably ex- amined in the notes to Row v. Dawson, 3 Leading Cases in Equity. 2 Co. Litt. 214 a ; Lampet's case, 10 Rep. 48. 8 By the act of 8 & 9 Vict. c. 106, § 6, a contingent, executory, and future inter- est, and a possibility coupled with an interest in laud, also a right of entry, whether immediate or future, vested or contingent, may be disposed of by deed, provided it do not defeat or enlarge an estate tail. As to the construction of this statute, and its effect upon that of 32 Hen. VIII., see Jenkins v. Jones, L. R. 9 Q. B. Div. 128 ; Kennedy v. Lyell, 15 id. 491. 4 ' ' Where land was conveyed by feoff- ment — the only mode known to the earlier law — the difficulty with regard to possession could not arise ; for in order that the livery of seisin should be ef- fectual it was necessary in general for the feoffor to have actual possession at the time of livery made. For this purpose, a claim by him and his presence upon the land, if with present right to possess it, were not sufficient ; but it was requisite that the party previously possessed and all persons holding for him should either be expelled from every part of the prem- ises, or that he should virtually surrender possession by giving his consent to the feoffment." Judge Hare's note to Duch- ess of Kingston's case, 2 Smith's Lead. Cas. In the last American edition of this book, the editor has thus altered the expression of the passage : " The distinc- tion between the mere principle that a thing not possessed cannot be granted, and the offence of maintenance, is the more evident from the course of equity, which looked upon actual maintenance in the same light as the common law ; Stephen v. Bagwell, 15 Ves. 139 ; and yet gave effect to the transfer of future and contingent estates and interests. It consequently appears that the conveyance of estates not vested in interest was void at law, not as amounting to maintenance, for had that been the case no relief could have been afforded in equity, but under the operation of a general rule of policy, which forbade the transfer of any right not sustained and accompanied by possession, in order to avoid giving occasion to main- tenance. Co. Litt. 214 ; Bacon's Abr. tit. 63 H9.] THE COVENANT FOR SEISIN. [CHAP. III. § 48. When, however, the mode of assurance was altered, and land could be transferred without notorious change of possession, the application of the remarks of Montague becomes obvious. What- ever may have been the intention of the legislature in passing the Pretended Title Act, it is certain that it wab judicially looked upon as scarcely altering the law as it stood at that time, and that the offence of maintenance consisted not so much in taking a conveyance of the whole or part of a thing not vested in the party by whom it was made, as in taking it in consideration of assisting or maintaining a suit for its recovery. 1 Such has been the course of decision in England down to the present day, 2 and it is there well settled that where the transfer is not made for the purpose of assisting or maintaining a suit the mere fact of an adverse possession will not invalidate the conveyance. 3 § 49. In many parts of this country, however, the doctrine has received a wider application. In some of the States, the statute of Henry VIII. was re-enacted literally, in some it was modified, 4 Grant, D ; Bayler v. Commonwealth, 40 Pa. 37, 42. As the rule was founded on the want of possession, it did not apply where the grantor was seised, although without right, through the expulsion of the rightful owner. Hence arose the dif- ference hetween the operation of a feoff- ment and of a grant ; because a feoffment was another name for livery of seisin, and livery could not he made unless the feoffor was actually seised. Knox v. Jenks, 7 Mass. 488. Such a possession could not be acquired by an entry on land held adversely by another, unless he and all persons holding under him were ex- pelled from the premises, or gave their consent to the feoffment. Litt. § 781 ; Co. Litt. 48 b. As, therefore, a feoffment could not be made without obtaining actual possession, a previous want of possession formed no obstacle to its operation." 2 Smith's Lead. Cas. (8th Am. ed.). 1 Note to Duchess of Kingston's case, supra, p. 63, n. 4. 2 Stanley v. Jones, 7 Bing. 369 ; Doe v. Evans, 1 Com. Bench, 717 ; Hitchins v. Lander, Cooper's Ch. Cas. 34 ; Sharp v. Carter, 3 P. Wins. 375 ; Prosser v. Ed- monds, 1 Younge & Col. (Exch.) 481; Harrington v. Long, 2 Myl. & Keen, 590 ; 64 Anson v. Lee, 4 Simons, 364; Hunter v. Daniel, 4 Hare, 420 ; Wilson v. Short, 6 id. 366; Cook v. Field, 15 Q. B. 460; Cockell v. Taylor, 15 Beav. 103 ; Jen- kins v. Jones, L. R, 9 Q. B. Div. 128 ; Kennedy v. Lyell, 15 id. 491. 3 Doe v. Martyn, 8 Barn. & Cress. 497. * See 4 Kent's Com. (14th ed.) 446 ; Sherwood v. Waller, 20 Conn. 262 ; Way v. Arnold, 18 Ga. 181 ; Newkirk v. Cone, 18 111. 449 ; Breckenridge v. Moore, 3 B. Monr. (Ky. ) 629; Little v. Bishop, 9 id. 247 ; Sherry v. Frecking, 4 Duer, (N. Y.) 454 ; Sedgwick v. Stanton, 4 Kern. (N. Y.) 289; Chairs v. Hobson, 10 Humph. (Tenn.) 355; Bledsoe v. Rogers, 3 Sneed, (Tenn.) 466. The doctrine has always been strongly upheld in this State (Tennessee, see infra), and the latest statutes (Code of 1884, p. 429, § 2446) have not deviated from it. In Dakota, the Revised Code (1883, p. 893, § 681) provides that every grant of real property, other than one made by the Territory or under a judicial sale, is void if at the time of the delivery thereof such property is in the actual possession of a person claiming under a title adverse to that of the grantor. § 49.] THE COVENANT FOR SEISIN. [CHAP. III. in others the prohibition of champerty was regarded as part of the common law of the State, 1 while in some, whether by statute or common law, it has no existence whatever. 2 In those States, how- In Vermont, the provision in the Re- vised Laws (1880, p. 402, § 1953) is in al- most the same language. In New York, the Revised Statutes (1882, p. 2516), following the Pretended Title Act, provide that "no person shall buy or sell, or in any manner procure, or make or take any promise or covenant to convey, any pretended right or title to any lands or tenements, unless the grantor thereof or the person making such prom- ise or covenant shall have been in pos- session, or he and those by whom he claims shall have been in possession of the same, or of the reversion or remainder thereof, or have taken the rents and prof- its thereof for the space of one year before such grant, conveyance, sale, promise, or covenant made ; and every person violat- ing this provision shall be deemed guilty of a misdemeanor." And in Nichols v. Nichols, 5 Hun, 108, it seems to have beeii held in a case coming within a prior statute on the subject, that the covenant of seisin is merely a covenant of title and does not relate to the possession as it did formerly ; and that possession of the land at the time of the conveyance by a third person does not constitute a breach of the covenant, unless such possession is ad- verse so as to render the deed void for champerty. 1 Dexter v. Nelson, 6 Ala. 69. In Lind- sey v. Veasy, 62 id. 421, it was decided that a conveyance of land held adversely to the grantor passed no title to the gran- tee and that the covenant for seisin was broken. Wood v. McGuire, 21 Ga. 576 ; Fite v. Doe, 1 Blackf. (Ind.) 127 ; Martin v. Pace, 6 id. 99 ; Bowman v. Wathen, 2 McLean, (C. C. U. S.) 380; Michael v. Nutting, 1 Cart. (Ind.) 481 ; Wellman v. Hickson, id. 581 ; Patterson v. Nixon, 79 Ind. 251 ; but see Elliot v. Frakes, 90 id. 3S9; (it was formerly so in Maine, but has since been altered by statute ; Buck r. Bab- cock, 36 Me. 491 ;) Brinley v. Whiting, 5 Pick. ( Mass. ) 355 ; Johnson v. Prairie, 94 N. Car. 773 (since altered by statute, Code, ch. 256, § 177). 5 2 Such as Arkansas, Lytle v. The State, 17 Ark. 608 (see in this case an- able his- torical sketch of the statutes of champerty by Scott, J.); Delaware, Bayard v. Mc- Lane, 3 Harr. 139, where the subject is elaborately considered ; Iowa, Wright v. Meek, 3 G. Gr. 472 ; New Hampshire, Hadduck v. Wilmarth, 5 N. H. 181 ; New Jersey, Thomas v. Perry, Pet. (C. C. U. S.) 54 ; Pennsylvania, Stoever v. Wit- man, 6 Binn. 420 ; Cresson v. Miller, 2 Watts, 272 ; South Carolina, Poyas v. Wilkins, 12 Rich. L. R. 428 ; Texas, Campbell v. Everts, 47 Tex. 102 ; Ver- mont, Danforth v. Streeter, 2 Will. 497 ; Virginia (the Code following the statute of 8 & 9 Vict. c. 106, § 6, having pro- vided that "any interest in or claim to real estate may be disposed of by deed or will"), Carrington v. Goddin, 13 Gratt. 599, and see the former statutes of cham- perty referred to in Middleton v. Arnolds, 13 id. 489 ; Wisconsin, Noonan v. Lee, 2 Black, (S. C. U. S. ) 507 ; and, it is be- lieved, some other States. The subject is one which has largely been made the subject of local legislation. The latest statutes in force seem to show that in Arizona it is provided (Com p. L. 1877, § 34) that any person claiming title to any real estate may, notwithstanding there may be an adverse possession thereof, sell and convey his interest therein in the same manner and with the same effect as if he was in actual possession thereof, and provisions substantially similar seem now to exist in Arkansas (Mansfield's Dig. 1884, ch. xxvii. § 644) ; California (Hittel's ("odes and St. 1S76, vol. i. p. 702, § 6047) ; Georgia (Rev. Code, 1882, p. 670, § 2695) ; Illinois (Rev. St. 1883, p. 297, ch. 30) ; Iowa (Rev. Code, 1S84, p. 524, § 1932) ; Kansas (Comp. L. 1881, p. 211, § 1029) ; Michigan (Howell's St. 1882, p. 1458, § 5657) : Minnesota (Gen. St. 1881, p. 535) ; Missouri (Rev. St. 1879, p. 110, § 673) ; Montana (Rev. St. 1879, p. 443, § 210) ; Nevada (Comp. L. 1S73, p. 84, § 2t!2) ; North Carolina (Code, vol. i. p. 66, § 177) ; Oregon (Gen. L. 65 § 50.] THE COVENANT FOR SEISIN. [CHAP. III. ever, in •which, from whatever source, the offence of champerty is forbidden, the effect of such prohibition seems to be that a con- veyance by a party out of possession and with an adverse posses- sion against him is void as against the party in possession ; in other words, as respects the latter, the grantor has passed no right whatever to his grantee. The mere fact, therefore, of the transfer of real estate of which there is an adverse possession is deemed of itself an offence within the champerty acts. § 50. It would seem, therefore, to have been the intention of the courts in which the doctrine of actual seisin prevails, to con- sider the covenants for seisin and of good right to convey as assurances to the purchaser that there was no such adverse pos- session of the subject of the purchase as would bring him within the penalties of champerty, and to furnish him with a recompense if such should be the case. If, therefore, an actual seisin were transferred to the purchaser, the vendor had a right to convey within the spirit of the champerty acts, and the covenants for seisin and of good right to convey were fully answered. Such at least would appear to be a philosophical reason for the construc- tion which in some States has been given to these covenants. 1 1874, p. 516) ; Wisconsin (Eev. St. 1878, right and authority to convey a legal title. p. 632, § 2205) ; AYyoming (Comp. L. The champerty act of 1824 did not take IS 76, p. 5, ch. 3, § 7). effect until July of that year." So again, 1 Such was the suggestion of Hutchin- the champerty acts are probably referred son, C. J., in Catlin v. Hurlburt, 3 Term, to by the expression in Phelps v. Sawyer, 407. "It is probable," said he, "the 1 Aik. (Verm.) 3 57, "Had Sawyer given covenant for seisin was anciently intro- his deed with a covenant that he was sole duced into deeds to guard against such owner of the premises and had good right an adverse possession as would render the to convey, and the breach had been as- deed void, as would have been the case at signed upon such covenants, the charge common law and is now the case by virtue would have been correct, for Sawyer could of our statute, if there be an adverse pos- have no right to sell while any person was session." And in Pierce v. Johnson, 4 in possession adverse to him." And in id. 253, the same learned judge observed, Clarke v. McAnulty, 3 Serg. & Eawle, "The naked covenant of seisin was prob- (Pa.) 372, it was said, "It is urged that ably introduced for the purpose of secur- the statute of 32 Hen. VIII. c. 9, is not ing an easy entrance upon the land by the in force here, and as it is usual to sell land grantee, or to guard against the effect of where the vendor is not in possession, a an adverse possession, which would render larger operation should be given to the the deed void as an instrument of convey- covenant of warranty here than elsewhere, ance, and throw the grantee upon his cove- because the vendee, where he did not ob- nants as a remedy." So in Triplett v. tain actual possession, would otherwise be Gill, 7 J. J. Marsh. (Ky.) 436, it was said, without remedy. This is a good reason " Grayson, without being seised in fact or why a purchaser should secure himself by in law, may according to the law in force a covenant of seisin or that the vendor has at the date of the deed have had lawful a lawful right to convey, but it is no rea- 66 §51.] THE COVENANT FOR SEISIN. [CHAP. III. § 51. A question, however, arises in this connection as to the effect of the champerty acts on the covenants for title contained in the conveyance. It would seem that when the purchaser buys with knowledge of the state of the title, courts will not lend their aid to enforce the covenants which he receives. 1 But when his son why the law should interfere to cure the effects of negligence at the expense of confounding settled distinctions." 1 For as has been said, "It was ever the purchaser's restless cupidity, stimu- lated by the low price of those dormant claims, and by the prospect of large profit, which attacked the quiet and repose of society ; and to give such a construction to the statute as would permit the buyer of dormant claims securely to take a deed or covenant from the claimant, and if he failed to recover by a demise in the name of such claimant to indemnify himself by a suit against his vendor upon the cove- nant, would be to encourage and not to suppress the spirit of champerty." Wil- liams v. Hogan, Meigs, (Tenn.) 189. The statute in that State, however, rendered such a sale void for all purposes. The doctrine has there been steadily adhered to. An early case in Pennsylvania ( Mitchell v. Smith, 1 Binn. 110), and three of about the same date in New York (Belding v. Pitkin, 2 Caines, 147; Whittaker v. Cone, 2 Johns. Cas. 58 ; Woodworth v. Janes, id. 417), arose under peculiar circum- stances, and are illustrative of this ques- tion. Some time after the settlement of Pennsylvania, difficulties sprung from con- flicting claims to lands in the northern part of that State, derived on the one hand from the Proprietaries or the Com- monwealth, and on the other from the " Susquehanna Company" under the title of Connecticut ; and after years of contest, and even some bloodshed, Congress inter- fered, and commissioners appointed by its authority decided the right of government to be in Pennsylvania, leaving, however, the question of particular titles untouched. Many old settlers under the Connecticut title remained, and new ones intruded ; and finally Pennsylvania, in 1795, passed the Intrusion Law (11 April, 1795 ; 3 Smith's Laws, 209, and see the note in that volume), whose first section imposed a penalty upon any one who should in- trude or settle within certain counties named, under any " half share right or pretended title not derived from the au- thority of this Commonwealth," and the second section made it also penal for any person to combine or conspire for the pur- pose of conveying or settling any such lands. In Woodworth v. Janes, supra, decided in New York in 1 800, a bill filed by the purchaser of a Connecticut title to compel repayment of that part of the pur- chase money which had been paid was dis- missed by the court, on the ground that, as there was evidence that the purchaser bought with knowledge of the state of the title, equity could not lend its aid either to enforce or rescind such a contract but would leave the parties to their remedies, if any, at law ; and in the subsequent case of Whittaker v. Cone (decided after Wood- worth v. Janes though reported in a prior part of the volume), where the plaintiff sued at law upon promissory notes given for the purchase money of such a title, the court refused to sanction a recovery and the plaintiff was nonsuited. A similar decision was made in the same State in Belding v. Pitkin, supra; while in Penn- sylvania the case of Mitchell v. Smith, supra, presenting facts almost identical with those in Whittaker v. Cone, came be- fore the court about the same time, and after elaborate argument was decided in favor of the defendant. The ground taken by these cases neces- sarily assumes that under such circum- stances the covenants cannot be deemed collateral to the transaction, as to which see the notes to Collins v. Blantern, 1 Smith's Leading Cases ; Smith on Con- tracts, 192 ; for the very object of a purchaser who, being fully cognizant of the state of the title, obtains them, is thereby to protect himself in the very transaction forbidden by the law. Where, 67 § 53.] THE COVENANT FOR SEISIN. [CHAP. III. conduct lias not been such as to bring himself within the spirit of the champerty acts, it would also seem that however inoperative the transfer might be as against the party in possession, yet in the absence of absolute statutory prohibition, it is valid as between the parties themselves, 1 and will operate not merely by way of estoppel to the grantor, 2 but the covenants in the deed can be made available to the grantee. 3 § 52. The result, then, of the authorities connected with the doctrine of actual seisin appears to be this. It is probable that the covenants for seisin and of good right to convey were either introduced or applied in conveyances in some of the colonies in this country as assurances to the purchaser that there was no such adverse possession as would render the deed inoperative as a muniment of title, — as assurances that the vendor had such an actual seisin of the subject of the purchase as would give him a good right to convey it within the spirit of the statutes referred to. With this interpretation, the language used in the cases appears perfectly intelligible. The only case in which it would appear that the covenants could not be used for that purpose would be where the purchaser bought with such knowledge of the state of the title as to bring the case within the champerty acts. § 53. It will be observed that so far as those statutes are COn- however, both parties are in pari delicto, 3 As in Phelps v. Decker, 10 Mass. or where a statute has made the transac- 267. This case was fully stated in the tion absolutely void, as was the case with fourth edition of this treatise. Its decis- the champerty acts in Kentucky (Brecken- ion must necessarily have been the ground ridge v. Moore, 3 B. Mon. 629, 645 ; Graves of that in Van Hoesen v. Benham, 15 v. Leathers, 17 id. 668) and elsewhere, the Wend. (N. Y. ) 165, where the grantor was covenants are useless to the party receiving admitted as a witness for the grantee on them. Lee v. Colehill, Cro. Eliz. 527 ; the release of the covenants for title con- Waters v. Dean and Chapter of Norwich, tained in a deed which, under the cham- 2 Brownl. 158. perty acts, was inoperative as to third 1 Br. Ab. tit. Feoffment, pi. 19 ; Co. persons. A decision to the contrary in Litt. 369 ; Upton v. Barrett, Cro. Eliz. Williams v. Hogan, Meigs, (Tenn.) 187, 445, per Beaumont, J. ; Abernathy v. Bo- was cited approvingly by the court in azuian, 24 Ala. 193 ; Middletonrc. Arnolds, Abercrombie v. Baldwin, 15 Ala. 371; 12 Gratt. (Va. ) 489. but in the more recent cases of Harvey v. 2 Wade v. Lindsey, 6 Met. (Mass.) Doe, 23 id. 637, and Abernathy v. Boaz- 407 ; Den v. Geiger, 4 Hals. (N. J.) 235 ; man, 24 id. 189, it was expressly held that Jackson v. Demont, 9 Johns. (N. Y.) 55; the deed was valid as between the parties, Livingston v. Peru Iron Co., 9 Wend, and it was said that the decision in Ten- CS. V.) 516 ; Van Hoesen v. Benham, 15 nessee must be considered as based upon id. 165; Livingston v. Proesus, 2 Hill, the positive terms of its statute. As has (N. Y.) 523 ; Edwards v. Pioys, 18 Verm, been seen, there has been recent legislation 478. in that State ; supra, p. 64, n. 4. 68 § 54.] THE COVENANT FOR SEISIN. [CHAP. III. cerned, it is immaterial whether the adverse possession has been recent in its commencement, or has continued for so long a time as, under the limitation acts, to have ripened into a perfect title. It is the existence of the adverse possession which gives occasion for the offence which these statutes forbid — which deprives the vendor of his " right to convey " — which gives to his deed no effect as against the one in possession — and which therefore causes a breach of the covenants referred to. § 54. Where, however, such statutes are not in force, and con- sequently where no such construction can consistently with prin- ciple be given to these covenants, the duration of the adverse possession may be an important element in determining the ques- tion of the breach of the covenant for seisin. Where the adverse possession has been so actual, continued, visible, notorious, dis- tinct, and hostile, 1 as under the limitation acts to have formed an indefeasible title, it is obvious that the covenant for seisin must be broken. 2 It is not, however, altogether free from doubt whether such would be the case if the possession had not endured for the requisite length of time ; 3 and it is certain that the English courts seem disposed at the present day to treat mere posses- sion unaccompanied by right as destitute of all the qualities of an estate. 4 1 See the note to Taylor v. Horde, in 2 none but Thomas v. Perry appeared to Smith's Leading Cases. go to that extent. In Wilson v. Forbes, 2 Wilson v. Forbes, 2 Dev. (N. C.) 30. 2 Dev. (N. C.) 30, the possession had 3 In Thomas v. Perry, Pet. (C. C. U. S.) lasted for twenty-five years, and was there- 52, Washington, J., was of the opinion fore an indefeasible one. In Wheeler v. that, "if the possessions amounted to Hatch, 3 Fairf. (Me.) 389, the report merely actual ousters under claims of title, how- says that the grantor was "not seised," ever defective, the covenant of seisin was but says nothing of an adverse posses- broken ; " or, as he subsequently said, sion, while the expressions in Phelps v. "that if at the time the covenant was Sawyer, 1 Aik. (Verm.) 157, 158, are prop- entered into the grantor was disseised, erly referable to the effect of the champerty the covenant is broken, how good soever acts ; supra, § 50. In Fitzhugh v. Cro- his title may be." p. 55. (This, it should ghan, 2 J. J. Marsh. (Ky.) 430, however, be observed, was said without any refer- the court in giving its general views on ence to the champerty acts, which were the nature of the covenant (see them cited not in force in New Jersey.) The case, supra, p. 58, n. 2), expressed an opinion however, was decided upon another ground, that " a covenant of seisin is broken if the In the first edition of this treatise, the covenantor have not the possession, the proposition thus stated in the text as right of possession, and the right or legal matter of doubt was treated as if settled title." in accordance with the authority just re- 4 Doe v. Hull, 2 Dowl. & Ry. 38; Cully ferred to. But on more careful examina- v. Doe, 11 Ad. & Ell. 1008 ; Doe v. Mar- tion of the cases cited in support of it, tyn, 8 Barn. & Cress. 497. In Jerritt v. 69 §55.] THE COVENANT FOR SEISIN. [CHAP. III. § 55. It may be thought that too much space has been occupied with these decisions upon the nature of a covenant usually ac- companied by others which would seem to correct, by their own scope and application, any difficulty which could arise from the purchaser's want of remedy in case of subsequent loss, if he had received an actual seisin at the time of his purchase. But al- though if the covenant for seisin were the only one in the con- veyance, the questions just considered would have much practical importance, yet they possess scarcely less even where there are also covenants for quiet enjoyment or of warranty. For these last, which are said to assure the purchaser's possession, are therefore broken only by his eviction from it, and although the doctrine of constructive eviction has been liberally extended, yet in the absence of local doctrine, there is remembered no well- considered decision which has allowed a purchaser to elect to consider himself evicted, by buying in the paramount title before Weare, 3 Price, (Exch. ) 575, the vendor covenanted generally that he was seised in fee without any condition or other estate whereby to alter, bar, change, charge, burden, impeach, incumber, or determine the same and had good right to convey the same, and it appeared that the lady of the manor had previously demised a por- tion of the subject of the purchase for ninety -nine years, and the lessees had entered upon and continued to enjoy pos- session, it was held, notwithstanding the able argument of Mr. Preston for the plaintiff, that the covenants did not ex- tend to these leases. It was asked by the court, " What can a man be supposed to covenant against beyond the validity of the title, and most assuredly not against these surreptitious pocket leases ? " The action of covenant, it was added, only ex- tended to the consequence of legal acts. (I laves v. Bickerstaff, 1 Vaughan, 118, viz. that the law shall never judge that a man covenants against the wrongful acts of strangers. ) Upon this decision, however, Sugden has said : "It will be observed that the leases were accompanied with actual pos- session by the lessees, who had expended money on the property. They were, there- fore, within the covenants, and unless the covenants were held to extend to them, 70 general covenants for title would be waste paper. They are always intended to guard against a title adverse to the covenantor's, although it may not be a, lawful title. Clearly the leases were a charge, on the property at the time of the conveyance, and an ejectment at all events was necessaiy to dispossess the lessees. They therefore were an incumbrance within the covenant. It is not like the case of interruptions sub- sequently to the conveyance, by persons not claiming lawfully. The case was argued upon much higher grounds, and this probably led the court not to give due weight to the above simple view of it." Sugd. on Vend. (14th ed.) 601. By these higher grounds is meant those taken by Preston in Taylor v. Horde, supra, p. 53, n. 1, and he never forgave the decision in Jerritt v. Weare, as the Preface to 3 Ab- stracts of Title shows. Sugden gives no opinion as to this, but questions the de- cision because the general covenants for title were held not to extend to these leases, under which an adverse possession, defeasible only by an ejectment, had sprung ; and this seems to have been gen- erally adopted by the profession, for Dart, in general quite willing to criticise Sugden, says, " This decision seems to be of very doubtful authority." Dart on Vend. (5th ed.) 783. § 57.] THE COVENANT FOR SEISIN. [CHAP. III. it shall have been hostilely asserted. 1 Yet there are many in- stances in which this could be far better for him (it being always understood that his damages are measured by what he has paid) than to wait till the paramount owner should choose to enforce his claim. Where, under such circumstances, the covenant for seisin is held to have been fully answered by the transfer of the actual seisin, the purchaser is in the same position as if the cove- nants for quiet enjoyment or of warranty were the only ones in the deed, 2 and he is obliged to await the time of his involuntary eviction, instead of purchasing in the title, and thus acquiring a right to damages upon his covenant for seisin to the extent of the amount paid by him. § 56. The doctrine of actual seisin does not, however, seem to prevail throughout the States generally, 3 but the covenant for seisin is generally regarded as a covenant for the title* the word being used as synonymous with right; 4 and although there would be no question that it would be broken by an adverse possession, continued for the length of time required by the limitation acts, 5 yet such a possession would itself amount to an indefeasible title, which, if not marketable, would only be because its validity was a question of evidence rather than of law. § 57. It may, however, be observed that if the law of covenants for title be abstractly treated as a part of the law of real estate, the student will be constantly led into difficulties. The law of real estate is a highly artificial system, whose exact sources as to many of its branches have not to this day been precisely traced, based upon rules many of which sprang from and were applicable to a different state of society and which require caution as to their change. It is acknowledged that it is of less consequence what may or may not be the rule on a particular branch of this part of the law, than that the rule, when once established, should be looked upon as a rule of property, and as such subject not to judicial, but to legislative alteration. But the law of covenants for title is, as it were, collateral to this system. In part it is subject to its rules, and in part it is a branch of the general law 1 See Ch. VII. . braska, and to a limited extent in Ohio, 2 Clark v. McAnulty, 3 Serg. & Rawle, supra, § 42. (Pa.) 372. * Supra, § 41. 3 Only, it would seem, in Illinois, 6 See supra, § 54. Maine, Massachusetts, possibly in Ne- 71 § 58.] THE COVENANT FOR SEISIN. [CHAP. III. of contracts, and the intention of the parties as expressed by the tenor of the whole instrument is the guide to construction. To say, therefore, that a particular construction given to a certain covenant is or is not the law of a State, means practically no more than that, in cases of difficulty, the intention of the parties will, to a certain extent, be referable to that construction. But while the intention of the parties is to be the governing rule, yet it is conceived that in most instances in which the re- lation of vendor and purchaser is entered into, that intention, when applied to the averment that the vendor is seised, and that he will respond in damages if he be not, extends beyond such a mere seisin as will enable the purchaser to obtain possession in the first instance. The want of present possession is a defect which can generally be discovered by immediate observation or inquiry, and is not one against which a purchaser usually seeks to protect himself by a covenant ; but it is not so as to a defect in the title. § 58. Apart from this local construction of the covenant for seisin, it is defined to be " an assurance to the purchaser that the grantor has the very estate in quantity and quality which he pur- ports to convey ; " * and, owing to the precision of language in which it is expressed in England, no case can there be found in which less than an exact compliance with this definition has been held sufficient to prevent its breach. Nor upon this side of the Atlantic is there any material difference of opinion, wherever this definition has been recognized. Thus it is held that the covenant is broken if the grantor has only an estate tail ; 2 or if there be an outstanding estate for life; 3 or, under certain circumstances, a term for years ; 4 a paramount 1 Howell v. Richards, 11 East, 641, per dream that his covenant was broken by Lord Ellenborough. there being a tenant from year to year in 2 Comstock v. Comstock, 23 Conn. 352. possession. Usually, the rent is appor- 3 Frazer v. Board of Supervision, 74 tioned, as are the taxes, interest on in- Ill. 2 s 2 ; Wilder v. Ireland, 8 Jones L. cumbrances, etc., up to the date of the (X. C.) 90 ; Mills v. Catlin, 22 Verm. 106. conveyance, and the tenant attorns to the 4 Van Wagner v. Van Nostrand, 19 Io. purchaser. Such a tenancy for years is 422 ; that is to say, such a term of years obviously no breach of the covenant for as should properly defeat the "assurance seisin; Lindley v. Dakin, 13 Ind. 389; that the grantor has the very estate in Page v. Lash ley, 15 id. 152 ; Kellum v. quantity and quality which he purports to Berkshire Ins. Co., 101 id. 455 ; nor, in convey." As a general rule, however, no most cases, of the covenant against in- one selling real estate in a city would cumbrances ; see infra, §77. 72 § 58.] THE COVENANT FOR SEISIN. [CHAP. III. right in another to divert a natural spring, 1 or jO prevent the grantee from damming water to a certain height when that right is reserved to him by his deed. 2 So where the title failed to cer- tain flats which purported to pass by the deed ; 3 or where a rail- road was in possession of a strip of land under deed from the grantor. 4 So where one of two tenants in common purported to convey the entire estate with a covenant of seisin, the latter was broken as to one half of the estate conveyed ; 5 and a fortiori where one having covenanted that he was seised of an undivided portion of the premises, it turned out that a partition had been made. 6 So a breach will occur if no such land exist as that purported to be conveyed ; 7 and the covenant has been held to extend not only to the land itself, but to all such things as should be properly appurtenant to it and pass by a conveyance of the freehold. Thus it has been held to be broken where the grantor had before the conveyance sold to another a quantity of rails which had been erected into a fence and thereby become a fix- ture ; and the same doctrine has been applied generally to build- ings or other fixtures upon the land the right to remove which was vested in other parties and did not pass to the purchaser by the conveyance. 8 In another case it was held that where a lot had been conveyed without mention of the buildings erected 1 Clark v. Conroe, 38 Verm. 471, been approved and followed in Lamb v. where the question was carefully consid- Danforth, 59 Me. 322. ered. The declaration set forth that the 2 Traster v. Snelson, 29 Ind. 96 ; defendant, as administrator, conveyed cer- Walker v. Wilson, 13 Wis. 522 ; Hall v. tain premises to the plaintiff with cove- Gale, 14 id. 55 ; s. c. 20 id. 293. And in nants for seisin and of warranty, " on Adams v. Conover, 87 N. Y. 422, it was which premises there was situated at the held that this doctrine applied even though date of the conveyance a certain natural there was no express reservation in the spring of water, essential to the use and deed. occupation of said premises." The right 8 Montgomery v. Keed, 69 Me. 510. to use this spring had, however, been pre- 4 Messer v. Oestreich, 52 Wis. 684. viously conveyed by the defendant's tes- 6 Downer v. Smith, 38 Verm. 464. tator, which was assigned as a breach of 6 Morrison v. McArthur, 43 Me. 567. the above covenants, to which the defend- 1 Bacon v. Lincoln, 4 Cush. (Mass.) ant demurred. The court held that the 212 ; Basford v. Pearson, 9 Allen, (Mass.) spring formed part of the land couveyed 389. to the plaintiff, and as the defendant had 8 Powers v. Dennison, 30 Verm. 752 ; no title to the same his covenant for Van Wagner v. Van Nostrand, 19 Io. 427 ; seisin was broken. The existence of the West v. Stewart, 7 Pa. 122 ; s. c. but paramount title to the spring was also not s. p., 14 id. 336. In this case the held to be a breach of the covenant of covenant was one of warranty, but the warranty ; in regard to this see infra, removal of the buildings was held to be Ch. VIII. This case in Vermont has an eviction. 73 § 59.] THE COVENANT FOR SEISIN. [CHAP. III. thereon, only so much of the latter as was upon the land con- veyed passed as part of the freehold, and the right of third parties to remove other portions of the house projecting over the adjoin- ing land was held not to be a breach of the grantor's covenant for seisin. 1 And obviously such a decision does not conflict with the preceding class of cases, but holds merely that improve- ments not upon the lot itself do not pass by operation of law with a conveyance of the lot. § 59. On the other hand, it seems settled that the covenant, as generally expressed in its short form, is not broken by the ex- istence of such easements or incumbrances as do not affect the technical seisin of the purchaser. Thus the existence of a high- way over part of the land conveyed is no breach of this covenant, 2 since it is considered that although the public may have a right of passage over the way, the freehold technically remains in the owner of the soil. 3 So with respect to a judgment, a mortgage, or a right of dower ; however these may operate as a breach of the covenant against incumbrances, they do not affect the cove- nant for seisin, 4 since a judgment or a right of dower does not 1 Burke v. Nichols, 2 Keyes, (N. Y.) 671. "The defendant," said the court, "is correct in claiming that under his deed from the plaintiff his rights in respect to the dwelling-house and fence on the lot thereby conveyed are the same as if such structures had been specifically mentioned in the grant. If the grantor had title to them, it passed by the deed ; if he had not title to such structures or any part of them, his covenant of seisin was broken to that extent, and the defendant has a remedy for the breach. But the rights of the defendant thus acquired do not extend to such parts of the house and fence as are attached to and rest upon the soil of the adjoining lot. Those structures, by the operation of the very principle upon which the defendant relies, are a part of the land on which they stand ; and as the adjoining lot is not covered by the deed, the de- fendant has no claim against the plaintiff by reason of failure of title to that por- tion of the house and fence which stands thereon." 2 Vaughn v. Stuzaker, 16 Ind. 340 ; Whitbeck v. Cooke, 15 Johns. (N. Y.) 74 483. As to whether a public road is a breach of the covenant against incum- brances, see Ch. V. But where land was conveyed as bounding on certain streets which were to be opened according to a general plan, it was held that the refusal of the grantor to open those streets was a breach of the covenant of warranty. Trutt v. Spotts, 87 Pa. 339 ; see infra, Ch. VIII. And a fortiori, it is presumed, of a covenant for seisin. McDonald v. Mc- Elroy, 7 Pac. Coast L. J. 343. 3 2 Inst. 705 ; Goodtitle v. Alker, 1 Burrow, 133 ; Peck v. Smith, 1 Conn. 103-147 ; Cortelyou v. Van Brundt, 2 Johns. (N. Y.) 357 ; Jackson v. Hath- away, 15 id. 449 ; Lewis v. Jones, 1 Pa. 336. 4 Fitzhugh v. Croghan, 2 J. J. Marsh. (Ky.) 430 ; Sedgwick v. Hollenback, 7 Johns. (N. Y.) 380; Tuite v. Miller, 10 Ohio, 383 ; Massey v. Craine, 1 McC. (S. C.) 489 ; Lewis v. Lewis, 5 Rich. L. (S. C.) 12. Obviously an unauthorized removal of certain fixtures by a tenant is no breach of the covenant. Loughran v. Ross, 45 N. Y. 792, and see Ch. VI. §60.] THE COVENANT FOR SEISIN. [CHAP. III. divest the technical title or seisin of the grantor ; and a mort- gage, although in strictness it purports to pass the legal title, yet is almost universally regarded at the present day as a mere security for the payment of the debt. 1 If, however, the mortgagee had entered under his mortgage (as is allowed by local statutes in many States), the covenant would, it is supposed, be held to be broken. § 60. There have been cases which have held that no breach of the covenant will be caused by the happening, or possibility of happening, of future contingent events which might affect the title. Thus where the alleged breach was that one of the par- ties to a deed was a minor, it was held that the title having passed to her grantee, 2 there could be no breach of the covenant until disaffirmance by her after majority, until she entered or in some legal mode avoided the conveyance. 3 So where the grantor was a sheriff's vendee under judgment of foreclosure of a mort- gage, it was held that a subsequent order of the court, setting aside the sale and opening the judgment, did not work a breach of the covenant for seisin. 4 1 The text was cited in Reasoner v. Eduiundson, 5 Ind. 394, where it was held that the mortgagee not having entered, the covenant for seisin was not broken. 2 See as to this, Bool v. Mix, 17 Wend. (N. Y.) 132. 3 Van Nostrand v. Wright, Lalor's Sup. to Hill & Denio's R. (N. Y.) 260. The minority of the grantor is, however, a breach of the covenant for good right to convey. Nash v. Ashton, T. Jones, 195. * Coit v. McReynolds, 2 Rob. (N. Y. ) 658. "The covenantor," said the court, "either was seised or he was not, at the time he made his covenant. If he was seised, his covenant was not broken at the time, and it would not be broken after- wards. Suppose a man conveys his prop- erty to an innocent party in fraud of his creditors, and the court should set aside the deed (if a court could be found to do such a thing), would an action lie by the gi'antee for a breach of the covenant for seisin ? I think not." The Massachu- setts cases already referred to (supra, § 42 et seq.) were also cited as proving that "a mere defeasible title will not work a breach of the covenant for seisin," but this is not the law in New York, in the sense in which those cases maintain this doctrine. Pollard v. Dwight, 4 Cr. (S. C. U. S.) 421, has been said to decide that one who, in possession under a patent, conveys with a covenant of seisin, would not be liable thereon if such patent were voidable and with it the title to the premises, but on examination the case will show that the question was merely whether an unsworn surveyor was a competent witness to prove that the premises conveyed were included within an alleged prior patent. "The prior claims," said Marshall, C. J., "rest upon the oath of the witness. If those claims were valid, their validity was estab- lished by his testimony, which cannot be tolerated on any legal principle. If they were mere claims, not good titles, they ought not to have been stated to the jury." It is apprehended that if the identity of the land had been properly established, there would have been no question as to the breach ; Fitch v. Bald- win, 17 Johns. (N. Y.) 161 ; though in that case the purchaser was held to be 75 § 61.] THE COVENANT FOR SEISIN. [CHAP. III. But it may be observed of these cases that if, as the weight of authority proves, a covenant for seisin is satisfied only by the transfer of an indefeasible title, it is technically broken as soon as it is made if the title be from any cause defeasible, 1 and the grantee's difficulty would seem to be less as to the breach of the covenant than the right to recover at that time more than nominal damages. 2 An analogy may be found in the rule with respect to chattels. In the sale of these a warranty of title is implied by the civil and the common law. But a present possession is all that can ever be transferred. Yet a subsequent loss of possession by a title para- mount will be a breach of this warranty, because the vendor is understood to have transferred a possession which can be lawfully retained. § 61. As respects the pleadings in an action upon this covenant, it has been settled from an early period that in assigning the breach of the covenants for seisin and of good right to convey it is unnecessary to do more than negative the words of the covenant generally. In Bradshaw's case, 3 which was an action brought on a covenant in a lease that the lessor had full power to convey, it was held " to lie more properly in the knowledge of the lessor what estate he himself has in the land which he demises, than the lessee, who is a stranger to it ; and therefore the defendant ought to show what estate he had in the land at the time of the demise made, by which it might appear to the court that he had full power and lawful authority to demise it." In a later case, 4 where the covenant was contained in a conveyance of a freehold, it was en- deavored, on demurrer, to distinguish it from that just cited, " be- cause the plaintiff ought to have shown of what estate the defendant was seised, in regard he had departed with all his writings con- cerning the land, in presumption of law, and therefore the plaintiff well knew the title ; and it is not like to Bradshaw's case, because there the covenant was with the lessee for years, who had not the writings." But this distinction was not recognized, and the rule estopped by being himself in possession at the time he accepted the deed he hiin- under a valid patent ; "it never can be self was seised of the premises." permitted to a person," said the court, l As to this, see infra, Ch. X. " to accept a deed with covenants of seisin, 2 As to this, see infra, Ch. IX. and then turn round upon his grantor and 8 9 Rep. 60. allege that his covenant is broken, for that 4 Glinisterfl. Audley, T. Raymond, 14. 76 § 63.] THE COVENANT FOR SEISIN. [CHAP. III. in Bradshaw's case has since been consistently adhered to, and applied as well to covenants in a conveyance of a freehold as of a leasehold estate. 1 § 62. As a consequence of this, it is well settled that in an ac- tion on the covenant for seisin it is unnecessary either to aver an eviction in the declaration or lay any special damage. 2 A distinc- tion thus exists, as respects the pleadings, between the covenant for seisin (with which may be classed the covenant for right to convey) and the other covenants for title, as, in suing upon the latter, it seems in the first place generally necessary that the in- cumbrance or paramount title should be particularly specified in the declaration, as well, perhaps, as the results which it has caused. 3 § 63. Nor is it necessary that in a suit upon' the covenant for seisin the plaintiff's subsequent pleadings should set forth the particulars of the paramount title. Although in an early case in Massachusetts, 4 Parsons, C. J., in stating some general proposi- tions, remarked that " the defendant in his bar should regularly maintain his seisin, and then the plaintiff in his replication should aver who in fact was seised ; " yet as was subsequently said in New York, 5 that case presented a question of evidence merely, and not a question of pleading. " All that is incumbent on the plain- tiff," said the court there, " is to negate the title of the defendants, who plead affirmatively and generally that they had a good title, 1 Muscot v. Ballet, Cro. Jac. 369; 2 Connecticut of Wilford v. Rose, 2 Root, 14, Saund. 181 b, note 10 ; Floom v. Beard, probably depended on some local statute, 8 Black. "(Ind.) 76 ; Traster v. Snelson, as otherwise it is opposed to the current of 29 Ind. 96 ; Socum v. Haun, 36 Io. 138 ; authority. Care must be taken to distin- Blanchard v. Hoxie, 34 Me. 376 ; Marston guish these cases from those in which the v. Hobbs, 2 Mass. 433 ; Wait v. Maxwell, breach of the covenant is set up as a 4 Pick. (Mass. ) 88; Bacon v. Lincoln, 4 defence to payment of the purchase money, Cush. (Mass.) 212 ; Abbott v. Allen, 14 where the defendant, the purchaser, hav- Johns. (N. Y.) 248 ; Rickert v. Snyder, ing pleaded the plaintiff's covenant for 9 Wend. (N. Y.) 421 ; Lot v. Thomas, seisin and assigned the breach by negativ- Penn. (N. J.) 300 ; Bender v. From- ing the words of the covenant, judgment berger, 4 Dall. (Pa.) 436 ; Clarke v. Mc- has, upon demurrer, been given for the Anulty, 3 Serg. & Rawle, (Pa.) 372 ; plaintiff. This is upon the ground that Mackey v. Collins, 2 Nott & McC. (S. C.) the mere absence of title will not in general 186; Pollard v. D wight, 4 Cr. (S. C. be a good defence to payment of purchase U. S.) 430; Duval v. Craig, 2 Wheat, money. See infra, Ch. XIV. (S. C. U. S.) 62, note. It seems, however, 2 Abbott v. Allen, 14 Johns. (N. Y.) to have been formerly otherwise in Ohio, 248 ; Bird v. Smith, 3 Eng. (Ark.~\ 368. under a local statute which has since been 8 See infra, Ch. III., V., and VII. repealed ; see Robinson v. Neil, 3 Ohio, 4 Marston v. Hobbs, 2 Mass. 433. 526. The early case to the same effect in 6 Abbott v. Allen, supra, per Piatt, J. 77 § 64.] THE COVENANT FOR SEISIN. [CHAP. III. and the general replication in this case is sufficient. This differs from the class of cases where the plea avers a general perform- ance of the covenant ; and then the plaintiff is required in his re- plication to spocify wherein the breach has been committed : for instance, in an action of covenant for not repairing a leased mes- suage, the declaration may assign the breach generally that the covenantor did not repair, etc. ; the defendant may then plead generally a performance of his covenant, and the plaintiff then is required in his replication to specify wherein the repairs have been omitted, in order that the defendant may be apprised, with reasonable certainty, what is the object of the suit. The reasons for requiring such a special replication are, first, that the subject to which the covenant relates is perfectly known to the party complaining of the breach ; and, secondly, the suit has a more general aspect, and the subject of the breach is multifarious. Therefore, the law in such case most reasonably requires the replication to specify that a chimney has fallen down, that the windows are broken, and that the barn is unroofed, or that the fences are prostrate, etc. In this case, the point in contro- versy is single and abstract. The question is merely whether the defendants had an indefeasible title, and the only evidence in relation to that title may be exclusively in the power of the defendants." 2 § 64. Later in New York, however, and in Michigan, statutory modifications of the common law system of pleading seem to have led to the adoption of a different rule. In the former State, where under the code no replication is necessary, but issue is joined by the service of the answer, it would seem according to a recent case 2 that the defendant in an action for breach of the covenant of seisin need not set up in his answer performance of the cove- nant, but may put in a general denial, and that therefore the com- plaint, though it need not set out the title in detail, should state the defects with sufficient particularity to enable the defendant to frame his defence. A similar rule has prevailed from a somewhat 1 It is of course hardly necessary to contained one count only on the covenants mention that in suing on the covenants for seisin, for right to convey and of war- for title the plaintiff may recover on the ranty, and the breach was assigned by count that is well laid, although the negativing the words of each covenant, a others may be defective. Blanchard v. demurrer for duplicity was overruled. Hoxie, 34 Me. 376. And in Brady v. 2 Woolley v. Newcombe, 87 E". Y. Spruck, 27 111. 480, where the declaration 605. 78 § 05.] THE COVENANT FOR SEISIN. [CHAP. III. earlier date in Michigan, where, in such an action, the statutory general issue has been held to be a complete denial of the plain- tiff's cause of action. 1 § 65. As respects the burden of proof, it is settled that the rule as to the evidence corresponds with the rule as to the pleadings, and in the absence of statutory changes in the common-law system of pleading, the knowledge of the state of the title being supposed to rest with the defendant, he is bound in the first instance to maintain the affirmative of his covenant. It is considered that until the grantor discloses his title the plaintiff holds the negative merely, and is not bound to aver or prove any fact in regard to the outstanding title. 2 Hence, if upon the trial of the issue neither party offer any evidence, the plaintiff is entitled to judgment. 3 1 Ingalls v. Eaton, 25 Mich. 32 ; Peck v. Houghtaling, 35 id. 127. 2 Abbott v. Allen, 14 Johns. (N. Y.) 253, where it was said, " The grantor has no right to shift the responsibility from his own shoulders by imposing it on the grantee to aver and prove at his peril any particular outstanding title." So also in Cockrell v. Procter, 65 Mo. 41, citing the text. But as will be seen this has been since changed in New York. 3 Abbott v. Allen, supra ; Potter v. Kitchen, 5 Bosw. (N. Y.), where the sub- ject was elaborately examined ; (but these New York cases were overruled in the later case of Woolley v. Newcombe, su- pra;) Baker v. Hunt, 40 111. 266; Swaf- ford v. Whipple, 3 G. Gr. (Io.) 264 ; Schofield v. Iowa Co., 32 Io. 321 ; Mars- ton v. Hobbs, 2 Mass. 437 ; Bircher v. Watkins, 13 Mo. 521 ; Cockrell v. Proc- ter, 65 id. 41 ; Mecklem v. Blake, 16 Wis. 102 ; Beckmann v. Henn, 17 id. 412. While it is true that in some cases the plaiutiff, after averring generally that the defendant was not seised, has assumed the burden of proof and gone on with his evi- dence to show the defective title which he had received ; Pollard v. Dwight, 4 Cr. (S. C. U. S.) 431 ; Bacon v. Lincoln, 4 Cush. (Mass.) 212 ; yet this does not af- fect the rule itself as generally established. "It is a well-settled rule of evidence," said the court in Swafford v. Whipple, supra, "that the party who alleges shall prove the affirmative of any proposition. Ordinarily the issue lies upon the plaintiff, and the onus probandi is on him to estab- lish what he affirms. But it frequently happens that in making up an issue the defendant assumes the affirmative propo- sition, or confesses and seeks to avoid the action, and would fail if no evidence in avoidance should be adduced by him. In such event the proof is incumbent on the defendant, as the party who would fail if no evidence should be given on either side, or as the party who has thrown a negative proposition on the plaintiff, which might be difficult and perhaps impossible for him to prove, and in relation to which the defendant has all the evidence in his pos- session. Hence it is laid down that the onus probandi lies upon the party who seeks to support his action or defence by a particular fact of which he is supposed to be cognizant. ... In the present case there was but a single point in controversy before the jury. The defendant pleaded that he was lawfully seised of the prem- ises. Upon this question he assumed the affirmative ; it was for his interest to prove it, as it would operate a complete bar to the action. The nature of the title to the premises may have rendered it extremely difficult, or even impossible, for the plaintiff to prove the negative aver- ment, as the only evidence in relation to the title may have been exclusively under the control of the defendant. If he had 79 65.] THE COVENANT FOR SEISIN. [CHAP. III. On the other hand, if, as in Michigan 1 and New York, 2 under statutory systems of pleading, the defendant is not required to set title at the time the deed declared on was executed, he could easily have shown it ; and if he had no title, the covenant was broken, regardless of any third person who may have had the title. We conclude, then, that the court did not err in decid- ing that the onus probandi lay upon the defendant." This was approved in Seho- field v. Iowa Co., supra, where, the plain- tiff having alleged that the defendant " was not the true owner of the premises," and the latter having denied " that he was not the true owner of said land," no evi- dence was offered on either side except the deed from the plaintiff to the defend- ant, and the court held that the defendant's denial amounted to an averment of seisin, and that in the absence of all proof the plaintiff was entitled to judgment, and the correctness of this decision was recog- nized in Blackshire v. Iowa Homestead Co., 39 Io. 624. On the other hand, in delivering the opinion of the court in Woolley v. New- combe, supra, which, owing to the altera- tion in pleading caused by the code, reversed the former decision in New York, Rapallo, J., said : " The counsel for the appellant concedes that the rule invoked by him [that upheld in Abbott v. Allen, Potter v. Kitchen, &c] is exceptional, and that the case itself is anomalous. If the rule exists as claimed, the case certainly presents the curious feature of an action for breach of covenant in which the de- fendant in his answer denies every allega- tion of the complaint except that he exe- cuted the deed, and yet a judgment must go against him on the pleadings unless he proves affirmatively that he performed his covenant, no proof of its breach being re- quired of the plaintiff. That this result followed under the common law system of pleading may be conceded, [the italics are those of the author of this treatise,] but in order to ascertain whether, under our pres- ent system, the same end can be reached, it is necessary to examine the origin of the former rule and ascertain upon what it is founded." After referring to the old cases (Hancock v. Field, Cro. Jac. 369, &c, su- pra), the learned judge went on to say : "The reason for thus permitting the plain- tiff to drive the defendant to the affirma- tive of the issue in an action upon this particular covenant is to be found in the system of conveyancing prevalent in Eng- land when these rules were established. The owner of a landed estate depended for his title upon his title deeds and muni- ments of title ; these were not matters of public record, but were accessible only to the owner of the estate, who retained them in his possession. So where a party held a leasehold estate merely, it was in many cases impossible for him to show his title, which depended upon the title of his land- lord. . . . Where the owner of an estate sold the fee, the right to possession of the title deeds usually passed with it, and a conve}'ance in fee simple usually contained a grant of all deeds, evidences, writings, &c. . . . But where a vendor conveyed only a portion of his estate he retained his title deeds for his own security, and when in a conveyance of an estate the grantor gave a covenant of seisin or warranty, the grantee was not entitled to the title deeds. Buckhurst's Case, 1 Rep. 1, n. It was to these rules that Piatt, J. had reference in Abbott v. Allen, where he said that a grantor giving covenants for title was not bound to deliver to his grantee the prior deeds and evidences of his title. Under these customs and this state of the law, and before the recording acts, it is easy to understand why it should be held that in an action on the covenants of seisin the vendor was bound to disclose his title. He was allowed to retain the evidences thereof for the very purpose of answering to these covenants. It is equally manifest that under our present system of conveyancing and making the title to real estate matter of public record as acces- sible to the vendee as to the vendor, the Ingalls v. Eaton, Peck v. Houghtaling, supra. 2 Woolley v. Newcombe, supra. 80 §65.] THE COVENANT FOR SEISIN. [CHAP. III. forth his title in his answer, but may rest upon a mere general denial of the plaintiff's right to recover, the burden of proof is upon the plaintiff ; and unless at the trial he establishes by evi- dence Si prima facie case, the judgment will be for the defendant. The consideration of the measure of damages will be found in a subsequent chapter. 1 reason for the former rule entirely fails, and in this State it no longer has any foundation whatever to rest upon ; and if the common law system of pleading still prevailed, the plaintiff, in replying to a plea of seisin, would doubtless be required to state, as in other actions of covenant, the particulars of the breach, and thus assume the affirmative. An action of this description would no longer be an excep- tion to the general rules of pleading. " Under the code, however, no replica- tion is necessary ; issue is joined by the service of the answer. The defendant is not bound to set up in his answer per- formance of the covenant, but may put in a general denial, and this puts in issue the allegation of the breach of the covenant, and throws upon the plaintiff the burden of proving it. There is nothing, conse- quently, either in the nature of the case or in the form of the pleadings, which should throw upon the defendant the affirmative of the issue." 1 Infra, Ch. IX. 81 § 67.] THE COVENANT FOR RIGHT TO CONVEY. [CHAP. IV. CHAPTER IV. THE COVENANT FOR RIGHT TO CONVEY. 1 § 6Q. The covenant for right to convey has been sometimes said to be synonymous with the covenant for seisin. As the greater always includes the less, the existence of an estate in fee simple of course implies the right to convey it ; 2 but the converse is far from true, and until lately it was, for reasons heretofore stated, 3 the practice in England upon the purchase of an estate to have it conveyed to such uses as the purchaser should appoint, and in default thereof to the use of himself and his heirs. 4 And hence no doubt the covenant for right to convey has in England superseded the covenant for seisin. 5 And of course the former is the appropriate covenant when the conveyance is made in execution of a power. 6 § 67. In some parts of this country there would appear to be a special reason for the insertion of the covenant for right to convey. For as has been seen, 7 in a few States the covenant for seisin is answered by the transfer to the purchaser of an actual though a tortious seisin, irrespective of the right by which the property is held ; and where the covenant for seisin is thus lim- ited in its application to the mere transfer of the seisin, in its narrowest signification, there would seem every reason why a pur- chaser should protect himself by a covenant which refers exclu- sively to the right, or, as it is popularly called, the title. But it has also been seen that in the very case in which the covenant for right to convey would thus seem not to be merely 1 For the form of this covenant see 4 See, for example, such a deed in Ch. II., pp. 24, 28, n. 3. Thackeray v. Wood, 5 Best & Smith, (Q. B.) 2 With perhaps the single exception of 25 ; infra, p. 83, n. 3. the conveyance by a minor, who though 5 1 Hughes's Practice of Sales of Real seised in fee has no right to convey, save Property, 411. subject to disaffirmance by him after 6 Sugd. on Vend. (14th ed.) 573 ; Dart majority. Nash v. Ashton, Skinner, 42 ; on Vend. (5th ed. ) 544. s. c. T. Jones, 195 ; supra, p. 75, n. 3. 7 Supra, § 42 et scq. 8 Supra, p. 23. 82 §68.] THE COVENANT FOR RIGHT TO CONVEY. [CHAP. IV. synonymous with the covenant for seisin and thus superfluous, it should have been held to have no greater or other scope. In a previous chapter it was shown that this course of decision arose from the covenants for seisin and for right to convey being con- sidered assurances to the purchaser that the vendor had such a present seisin as would enable him, without violating the cham- perty acts, to transfer the estate, and consequently as having a good right to convey it under those acts. 1 § 68. It has, indeed, been held in an old case that the latter covenant related to the capacity of the grantor to convey, so that where a husband and wife, seised in her right, conveyed to a pur- chaser, with the husband's covenant that they had good right to assure the lands, the incapacity of the wife to convey by reason of her infancy was held to be a manifest breach. 2 But it is equally clear that it was considered also as relating to the title ; and where the covenant is construed according to the natural interpretation of its words, it must be broken by the absence in the vendor of the right to the premises — the jus, as distin- guished from the seisitia. 3 1 Supra, § 50. 2 Nash v. Askton, Skinner, 42 ; s. c. T. Jones, 195. 3 Tims in Triplett v. Gill, 7 J. J. Marsh. (Ky.) 432, wkere the covenants were of good right to convey and of warranty, it was keld that tke former "imported only that tke grantor kad a rigkt to convey, and did not imply tkat ke kad posses- sion. Suck a covenant was not broken by an adversary possession merely, but was broken only by a want of legal title in tke grantor, suck as ke kad a rigkt to sell and convey." It may moreover be remarked of tkis case, tkat as tke ckamperty statute was not passed till after tke execution of tke deed, tke construction of tke covenant did not come witkin tkat referred to above. In Tkackeray v. Wood, 5 Best & Smitk, (Q. B.) 325, a vendor kad, some years be- fore tke sale of tke premises by kim, added a cornice and certain spouts and pipes to kis kouse, of wkick tke effect was to drip water upon the premises of kis -neigkbor, and ke kad also opened certain windows overlooking tke same. By subsequent agreement in writing between tke adjoin- ing owner and kimself, ke acknowledged the encroackment, covenanted to remove it upon demand, and to pay a nominal rent during its continuance. He tken sold tke premises, covenanting that not- witkstanding any act done by him he had good right to convey. Upon the pur- chaser's refusal to acknowledge tke rigkt of tke adjoining owner and to pay tke rent, an action was brougkt by tke latter for tke encroackment, and tke purckaser, kaving been obliged to pay tke damages and costs tkerein, brougkt covenant against kis vendor, and it was urged on kis bekalf tkat but for tke vendor's written acknowl- edgment, the right to the easements would have become indefeasible in time, and that his acknowledgment and payments kad estopped him from setting up a title wkick, but for them, he might have acquired ; but the court had no doubt that judgment must be for the defendant. He had sold the estate in no worse plight than that in which he found it ; he had never acquired a right to the easements, and could not have derogated in any manner from the estate which he ever possessed, by an ac- knowledgment of which the effect was 83 §69.] THE COVENANT FOR RIGHT TO CONVEY. [CHAP. IV. § 69. Apart from this, most of what has been said in the preceding chapter as to the covenant for seisin applies equally to that for right to convey. Both, according to the weight of Amer- ican authority, are held to be broken as soon as made, and there- fore incapable of being taken advantage of by an heir or an assignee. 1 Both are governed by the same rules as to the plead- ings : 2 and the measure of damages is the same as to both. 3 simply to keep things in statu quo. No case had been cited to show that such a covenant meant more than a warranty against acts done by the party who might have incumbered or "made worse" his estate ; and though the court were not insensible to the hardship upon the plain- tiff, it was of the opinion that no breach of the covenant had been committed, and upon appeal this judgment was affirmed 84 in the Exchequer Chamber, 6 B. & S. 766. 1 Chapman v. Holmes, 5 Halst. (N. J.) 20. See Ch. VIII. 2 Jenkins, 305, pi. 79. For a recent case, the student may be referred to the pleadings in Thackeray v. Wood, supra. 3 Bickford v. Page, 2 Mass. 455 ; Dun- nica v. Sharp, 7 Mo. 71 ; Willson v. Will- son, 5 Fost. (N. H.) 234. § 70.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. CHAPTER Y. THE COVENANT AGAINST INCUMBRANCES. 1 § 70. In England, this covenant is frequently styled "the covenant for indemnity against incumbrances," and its place there is almost invariably after that for quiet enjoyment, to which indeed it is a sort of supplement, being connected there- with by the words " and that [i. e. the quiet enjoyment] free and clear of all incumbrances," etc. 2 Of course a covenant thus commencing with the words " and that free," etc., depends for its construction upon the preceding covenant of which it thus forms a part. 3 Now nothing is bet- ter settled, both in England and America, than that the covenant for quiet enjoyment (which is, that the grantee shall peaceably enjoy the premises) is eminently a covenant in futuro ; until breach, it runs with the land ; it is not broken by the mere ex- istence of an incumbrance or defect of title ; its breach depends upon the disturbance or damage which that incumbrance or de- fect may thereafter cause. On the other hand, it is settled by a large class of cases on this side of the Atlantic that the cove- nant against incumbrances, as here generally expressed, standing by itself as a separate and independent covenant, and generally couched in the short form " and that the premises are free and clear of all incumbrance," is a covenant in prcesenti ; it is broken as soon as made by the mere existence of an incumbrance, with- out regard to future or ultimate disturbance or damage, and, being so, does not run with the land. When however instead of thus standing by itself it is linked or coupled to the covenant 1 For the different forms of this cove- prove that it must be construed in con- nant, see Ch. II. pp. 24, 28, n. 3. nection with that paragraph by which it 2 See supra, p. 24. is immediately preceded ; that clause be- 3 " Unconnected with any other clause, ing the covenant for quiet enjoyment." it will be both ungrammatical and sense- Piatt on Covenants, 331. less. . The introductory words plainly 85 § 73.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. for quiet enjoyment, as is usually the case in England and some- times here, the distinction whether it is a covenant in prcesenti or hi futuro becomes important. § 71. The practical consequences of the distinction are three- fold : first, as to the parties to the action on the covenant ; secondly, as to the pleadings ; and thirdly, as to the measure of damages. All of these will be more fully considered hereafter. Suffice it here to say that, as to the parties to the action, if the covenant be one in prcesenti, it must be sued upon by the cove- nantee or his personal representatives ; an heir, a devisee, or an assignee cannot sue in his own name. As to the pleadings, if a covenant in futuro, it is not sufficient merely to negative the words of the covenant. And as to the measure of damages, if a covenant in futuro, the technical damage corresponds with the actual loss ; if a covenant in prcesenti, and there has been no present actual loss, the damages are but nominal. § 72. Such a distinction is of less consequence in England than in this country. There all the covenants for title — that for seisin as that for quiet enjoyment — run with the land and enure to the benefit of the heir, the devisee, or the assignee. Here, in the absence of local statutory enactment, the covenant for seisin is in most of the States held to be broken as soon as made ; and although doubts have at times been expressed whether this tech- nical rule should apply to the covenant against incumbrances, which, it has been said, partakes more of the character of a cove- nant of indemnity (and which certainly does so as to the measure of damages), yet the general current of American authority holds it to be, equally with the covenant for seisin, a covenant in prce- senti and broken as soon as made. 1 § 73. But it has been generally considered, and upon both sides of the Atlantic, that when the covenant against incumbrances is coupled with that for quiet enjoyment (as in the English form just given), it is to all intents and for all purposes a covenant in futuro ; and although it has been urged 2 that it should receive a double construction — one which would give it the benefit of a covenant against incumbrances as respects the facts which would constitute a breach, and the other which would give it the benefit of a covenant for quiet enjoyment as respects capacity for run- 1 In relation to this subject, see infra, 2 Particularly, arguendo in Greene v. Ch. X. Creighton, 7 R. I. 1. 86 §73.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. ning with the land- practically adopted. 1 •yet such a construction has never been 1 This distinction as to the form of the covenant was noticed in Vane v. Lord Barnard, Gilbert's Eq. R. 6 ; Carter v. Denman, 3 Zab. (N. J.) 273; Grice v. Scarborough, 2 Spears, (S. C. ) 652 ; Jeter v. Glenn, 9 Rich. L. (S. C.) 377; Hutchins v. Moody, 30 Venn. 658. Piatt regards the covenant against incumbrances as en- tirely one in futuro, his chapter on the subject being entitled "The Covenant of Indemnity against Incumbrances" (Piatt on Covenants, ch. xi.). In the argument noticed supra, in Greene v. Creighton, the counsel considered that the cases, and particularly that of Vane v. Lord Bar- nard, had been misunderstood, and that Griffith v. Harrison, 4 Mod. 249 (also, 1 Salk. 197, and Skinner, 397), and Hall v. Dean, 13 Johns. (N. Y. ) 105, were direct authorities for the construction he con- tended for. In Griffith v. Harrison, as reported in 4 Mod., the plaintiff declared on a covenant that he "should quietly enjoy free and clear of and from all arrears of rent, " and assigned as a breach that the rent was in arrear and not paid. The defendant pleaded that he had left so much money with the plaintiff co intentione to piy it to the lessor in discharge of what rent was in arrear, which plea was held good on demurrer. If this report of the case were correct, it would certainly be an authority for the construction contended for ; if the covenant had been considered strictly as a covenant for quiet enjoyment, the mere fact that the rent was in arrear and not paid would, according to all the authorities, have been no breach, and the declaration would have been held bad on the application of the familiar principle in pleading, that on demurrer the court considers the whole record and gives judg- ment against him who makes the first slip in the pleadings. On examining the re- port in 1 Salkeld, 197, and Skinner, 397, it will be found that Lord Holt decided the case upon that very ground ; the plea was good enough, " but the court took exception to the assignment of the breach, for that the plaintiff did not show a dis- turbance in the enjoyment, or other special damnification, without which the rent be- iwj behind is not a breach of the covenant." Hall v. Dean, supra, did indeed decide that the assignment of the breach of such a covenant by alleging that the plaintiff "had been forced to pay off the incum- brance," was goed on demurrer ; but the decision, if contrary to Griffith v. Harrison, must yield to it in authority. Although in Carter v. Denman, supra, this case was cited and apparently approved, yet the remarks of the court were but dicta. As to the case of Vane v. Lord Barnard, which has often been misunderstood, it was neither an action on the covenants for title contained in a conveyance of land, nor a bill to enforce specific performance of such covenants. It was a bill to enforce specific performance of an executory con- tract. The case was thus. On the mar- riage of Lord Barnard's daughter, the father of the intended husband covenanted to settle lands free from incumbrances upon trustees, "according to the usual limitations in marriage settlements," and Lord Barnard covenanted to settle certain lands by name upon trustees to like uses, but with these words : " that in such settlement there shall be covenants that he is seised in fee, has good right to convey, and that the trustees shall enjoy free from incumbrances." No settlement had been executed in pursuance of these articles. It happened that upon Lord Barnard's own marriage these same lands had been charged with £6,500, to be paid to such of his daughters as should be living at his death and be unprovided for; and "the bill was to have a specific performance of the articles by my lord's paying off or otherwise giving collateral security against this contingent portion of £6,500, he hav- ing then one daughter about sixteen years old. It was urged for the plaintiff that 'twas usual for this court to decree a specific performance of articles and cove- nants, and not to depend only upon the uncertain reparation by damages, which the personal estate may perhaps not be able to satisfy ; and this was not contro- verted, where 'twas possible to be done. 87 §74.] THE COVENANT AGAINST INCUMBRANCES. fCHAP. V. § 74. A distinction, moreover, must here be noticed between a covenant that the premises are free from incumbrances, or that But the Lord Chancellor (Cowper) held that here was not any covenant that the lands were free from incumbrances, but only a covenant that he would in the set- tlement (which was after to be executed) covenant for that purpose ; so that the parties seemed to be satisfied with a bare covenant only, and the marriage articles were only a covenant to covenant ; so that inserting that covenant in the future set- tlement was a specific performance of those articles, and was all that my lord agreed to do, or that the plaintiff by his bill desired to have. " The Lord Chancellor said, notice or no notice of this incumbrance was very material in this case ; for where a covenant is in this manner, if any incumbrance is discovered between the executing the arti- cles and the sealing the deed of settlement, whereof the party had no notice, that in- cumbrance shall be discharged, even before sealing the deed of settlement, both upon account of the fraud in concealing such incumbrance, and because it would be needless to enter into a covenant which, before entering into, is already known to be broke ; but against all other incum- brances discovered afterwards, there is the party's covenant only. Now where you have notice of an incumbrance before ex- ecuting the articles, 't is a stronger case than the last, for you consent with your eyes open to accept the party's covenant against an incumbrance you were aware of, and when you have chosen your method of security yourself, this court will give no other, nor make the party do a further act than by the articles he has agreed to do ; and the rather in this case, for that the portion is not a certain incumbrance, but a contingent one ; and therefore 't is rea- sonable to suppose that my Lord Barnard would not be compelled to charge his re- maining estate, at all hazards, to secure against an incumbrance that was but con- tingent, to the prejudice of his eldest son, especially when he had provided for the younger son so plentifully ; and decreed that my Lord Barnard should execute a deed of settlement, with covenants exactly pursuant to the articles only ; but because the estate was subject to a present charge, viz. the payment of a yearly sum for the daughter's maintenance from her birth, therefore that the Lord Barnard should pay and discharge all arrears of that and the growing annuity, as it shall arise, taking acquittances from his daughter, and leaving them with the plaintiff for his security. " 'T was strongly urged by Mr. Ver- non, that supposing these articles were but a covenant to covenant, yet as soon as the articles were performed by sealing the deed of settlement, then they might come the next day and exhibit their bill to enforce an execution specifically of the covenant in such deed of settlement ; and why may not the court decree that to be done now, as well as that which, after performance of this decree, they will im- mediately decree upon a new bill ? The Lord Chancellor said, ' In this case they could not, for the incumbrance was not necessary, but contingent ; and if you brought an action at law upon such a covenant, you should not recover twopence damages till a breach, which possibly may never happen. Besides, the covenant on the deed of settlement is not to be that the estate is free from incumbrances, but that the trustees shall enjoy free from in- cumbrances : which, so long as they do, the covenant is not broke. And, it seems, the portion being contingent, and not certain, was the reason of this part of the decree. ; because 't is plain, by the latter part of the decree, where the in- cumbrance was certain (viz. the payment of a yearly sum), the Lord Barnard was deci'eed immediately to discharge it ; tho' by the articles he did but covenant to covenant, as is aforesaid, and there's no other difference between these two mat- ters.' " Here it will be noticed that the father of the husband covenanted to settle some lands free from incumbrances. Lord Barnard's covenant was different. He covenanted to settle certain specific lands which were subject to a known incum- brance, with a covenant to be contained in § 74.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. the purchaser shall enjoy them free from incumbrances, and a covenant to discharge of incumbrances or one similarly framed whose object is the accomplishment of a thing certain at a certain time. The distinction is that where the covenant is simply one of indemnity no right of action accrues under it unless some damage is shown to have been inflicted. But where the covenant is to do a particular thing in exoneration of the covenantee, or to indemnify him against liability, the right of action is complete as soon as there is a failure to perform or the liability has been in- curred. Thus in Lethbridge v. Mytton, 1 which was an action by the trustees of the defendant's wife, on a covenant to pay off within a twelvemonth certain incumbrances to the amount of £19,000, no special damage was laid or proved, and, judgment having gone by default, the sheriff's jury gave nominal damages ; but this was set aside by. the Court of King's Bench, Lord Tenter- den saying, " If the plaintiffs are only to recover a shilling dam- ages, the covenant becomes of no value ;" and Parke, J., added, " The trustees were entitled to have this estate unincumbered at the end of a year from the marriage ; how could that be enforced unless they could recover the whole amount of the incumbrance in an action on the covenant ? " And this distinction is perfectly settled on both sides of the Atlantic, though at times with some variety of decision as to the construction of the contract in the particular case. 2 the settlement that the trustee should enjoy was that "Lord Barnard was decreed im- them free from incumbrances. When the mediately to discharge it." Nor must this executory articles came to be consummated, case be confounded with some others (since it was "decreed that Lord Barnard should overruled), which decided that in general a execute a deed of settlement with cove- contract " to convey lands with covenants nants exactly pursuant to the articles for title " will be satisfied by the convey- only," since such, and such only, was the ance of a defective title, with covenants true meaning of the articles on Lord Bar- against it, in the deed. Such is not the nard's part to be performed ; in other law, unless, as in this very case of Vane words, the trustees were, by the express v. Lord Barnard, such was the express terms of the articles, to take his personal contract between the parties. See siqjra, covenant against a known possible con- § 32. tingency. But as respected the certain * 2 Barn. & Adolph. 772. present charge — the yearly sum for the 2 Carr v. Roberts, 5 Barn. & Adolph. daughter's maintenance — the agreement 78 ; Leeming v. Smith, 25 Grant's Ch. stood upon a different footing, and was (IT. C.) 79 ; Hogan v. Calvert, 21 Ala. subject to the usual law of vendor and 199 ; Booth v. Starr, 1 Conn. 249 ; La- purchaser, which gives the latter right to a throp v. Atwood, 21 id. 123; Gardner v. title free from all incumbrances (see supra, Niles, 16 Me. 280; Jennings v. Norton, § 32, and infra, Ch. XIV.) ; and hence it 35 id. 309 ; Furnas v. Durgin, 119 Mass. 89 § 76.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. § 75. In considering the question what will cause a breach of the covenant against incumbrances, or in other words, what is " an incumbrance " within the true intent and meaning of the covenant, an apparent difficulty will be encountered such as is not presented in the case of the other covenants. It arises, in part, from the fact that the word " incumbrance " has no technical meaning. It was not one of the " terms of the law," and no defi- nition of it will be found in the older books. Within the present century, an incumbrance has been defined to be " every right to or interest in the land which may subsist in third persons, to the diminution of the value of the land, but consistent with the pass- ing of the fee by the conveyance." 1 § 76. Speaking broadly, this definition is correct ; but the question recurs, What does " diminish the value of the land " and thus form an incumbrance, and is this a question of law or of fact? As to this, it has been said that " nothing which constitutes a part of the estate, or which, as between the parties, is to be regarded as an incident to which the estate is subject, can be deemed an incumbrance ; " 2 and again the question recurs, How shall it be determined whether the alleged incumbrance did or did 500 ; Williams v. Fowle, 132 id. 385 ; without sufficient reference to the peculiar Dorsey v. Dashiell, 1 Md. 204 ; Sparkman nature of the covenant. His criticism v. Gove, 44 N. J. L. 252 ; Churchill v. was disapproved in Trinity Church v. Hunt, 3 Denio, (N. Y.) 321 ; Triuity Higgins, supra; and in the last (7th) edi- Church v. Higgins, 48 N. Y. 532 ; Terrett tion of the book it is said (p. 363, note b), v. Brooklyn Improvement Co., 87 id. 92 ; "The same rules which state the measure Hartley v. Gregory, 9 Neb. 279 ; Ardesco of damages on breach of covenant of in- Oil Co. v. N. A. Mining Co., 66 Pa. cumbrance do not apply to a breach of 381 ; and see note to Smith v. Howell, 6 contract to remove an incumbrance, and Exch. 739. Thus, "a covenant against the author's criticisms of the case of Leth- incumbrances is not a covenant to defend bridge v. Mytton, 2 B. & Ad. 772, have a suit against an incumbrance." Lumber not been supported." Co. v. Gustin, 54 Mich. 624. Fisher v. l 2 Greenl. Ev. § 242. This definition Worrall, 5 Watts & Serg. (Pa.) 478, is an was taken (except as to the words "which obvious exception to these cases, it being may subsist in third persons") from that there held that although a joint owner given by Parsons, C. J., in Prescott v. who covenanted to procure the joinder of Trueman, 4 Mass. 630. It was quoted the other owner in a deed conveying the with approbation in Mitchell v. Warner, land was liable in damages for a failure 5 Conn. 527 ; Carter v. Denman, 3 Zab. to do so, yet their amount was not neces- (N. J.) 273 ; Chapman v. Kimball, 7 Neb. sarily measured by the consideration. 399 ; Post v. Campau, 42 Mich. 90 ; Fritz Sedgwick, in his Treatise on the Meas- v. Pusey, 31 Minn. 368. ure of Damages, p. 182, has seriously 2 Dunklee v. Wilton Railroad Co., 4 questioned the correctness of the decision Foster, (N. H.) 489. in Lethbridge v. Mytton, but apparently 90 § 7b'.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. not constitute a part of the estate, or was or was not regarded as an incident to which it was subject ? Abstractly considered, of course no parcel of real estate, whether improved or otherwise, can be said to be perfectly free from everything which would diminish its value in some degree for some purpose. If unimproved, there may be a marsh, a lake, or a ledge of rocks, which may lessen its value for arable pur- poses ; if improved, there may be a want of light, of ventilation, or a thousand things incident to propinquity which may lessen its value for purposes of residence or commerce. In a very recent case in Pennsylvania it was accurately said : " Incumbrances are of two kinds, viz. : 1. Such as affect the title, and 2. Those which affect only the physical condition of the prop- erty. A mortgage or other lien is a fair illustration of the former ; a public road or a right of way, of the latter." 1 Thus property which is subject to a lease may, if purchased for investment, command a higher price for that very reason, and this in proportion to the length of the term and the amount of rent; while if purchased for immediate improvement the lease will naturally lessen its value. 2 Hence in determining whether a certain thing is or is not an incumbrance within the true intent and meaning of a covenant against incumbrances, it seems evi- dent that in some cases it must be necessary not to interpret too strictly that part of the doctrine of the law of vendor and pur- chaser which, after the contract of sale has been consummated by the execution of the conveyance, determines the rights of the purchaser solely by the terms of the deed itself and the covenants which it contains, but to consider what was the subject-matter of the contract, the relation of the parties to it and to each other, the notice on the part of the purchaser, 3 and to some extent the local usage and habit of the country. 1 Memmert v. McKeen, 112 Pa. 315 ; very recent case of Allen v. Kersey, 104 and hence it was held that certain stone Ind. 1. steps of an adjoining house which were 2 In 5 Powell on Conveyancing, 24, it a servitude on the property sold with is said, " Leases outstanding at rack-rent a covenant against incumbrances were "a are not incumbrances on large estates, be- physical condition of the property, noto- cause the income principally depends on rious in its character and affecting its occupiers. Contra, of a small estate, where value, and under all the authorities we there is but one tenant ; there, possession must presume the price to have been may be the main object." And see infra, paid with reference to it ; " and see infra, § 78. § 80. A similar view was taken in the 8 With respect to notice on the part of 91 7.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. Nor is this a deviation from the salutary doctrine which pro- hibits the introduction of parol evidence to contradict written instruments, since, as it is a leading rule that they are to be in- terpreted according to their subject matter, it is obvious that parol testimony must at times be resorted to in order to ascertain the nature and qualities of the subject to which the instrument refers. 1 § 77. The application of this principle will, it is believed, solve whatever practical difficulty may be found to exist between the various cases in which has been presented the question of what is or is not an incumbrance within the covenant. Thus there can be no doubt that the covenant is broken by the existence of a judgment, a mortgage, an attachment, or any debt which is a lien upon the land conveyed ; 2 a right of dower, whether inchoate or consummate by the death of the husband ; 3 the purchaser, it may be here observed in anticipation that if the thing be really an incumbrance, nothing is better settled than that the purchaser's notice of it will be no defence to an action on the cove- nant, and nothing is more common than for a purchaser to take a covenant against a known incumbrance (see infra) ; but on the cpiestion of what was the subject-matter of the contract, the purchaser's notice, or rather his knowledge, may in many cases have a material bearing. 1 Greenleaf on Evidence, § 286. 2 Bean v. Mayo, 5 Greenl. (Me.) 94; Shearer v. Ranger, 22 Pick. (Mass.) 447 ; Norton v. Babcock, 2 Met. (Mass.) 510; Jones v. Davis, 24 Wis. 229 ; Kelsey v. Reiner, 43 Conn. 129 ; Redmon v. Phoe- nix Ins. Co., 51 Wis. 292. If, how- ever, for any reason, the mortgage is not a lien upon the premises, there will of course be no breach ; Case v. Erwin, 18 Mich. 434. So in Estabrook v. Smith, 6 Cray, (Mass.) 572, where the land was conveyed on condition that the grantee should erect a house within a year, which condition was complied with, the mere ex- istence of the condition was obviously held to be no breach ; " the condition as to the erection of a house made the estate defea- sible, but this was not an incumbrance within the meaning of the covenant against incumbrances, nor has the estate been de- feated by breach of that condition." 92 3 In Powell v. Monson Co., 3 Mason, (C. C. U. S.) 355, Judge Story inclined to the opinion that an inchoate right of dower was not an incumbrance within the covenant. " I am not prepared," said he, "to admit the doctrine contended for at the bar, that the covenant against incum- brances is broken by the mere existence of a possible incumbrance. A possibility of dower is not, within the meaning of the covenant, an incumbrance, for that means a settled, fixed incumbrance ; and if the result of the Massachusetts authorities on this point has not been mistaken by me, taking them collectively, they do not sus- tain the doctrine now contended for." The authorities thus referred to were Marston v. Hobbs, 2 Mass. 433, and Bickford v. Page, id. 461 ; but on examination they do not bear out this conclusion. However this may be, it has been since distinctly and finally settled in Massachusetts, that a right of dower, whether inchoate or other- wise, is an existing incumbrance amounting to a breach of this covenant, which, it has been said, extends to all adverse claims and liens on the estate conveyed, whereby the same may be defeated in wdiole or in part, whether the claims or liens be uncertain and contingent or otherwise. Shearer v. Ranger, 22 Pick. (Mass.) 447 ; Bigelow v. Hubbard, 97 Mass. 195; (Fuller v. Wright, 18 Pick. 405, was the case of an executory agreement ;) Harrington v. Murphy, 109 §77.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. or by the existence of taxes or assessments, whether presently due, 1 or which, when thereafter assessed or levied, relate back prior to the conveyance ; 2 but obviously not taxes or other as- Mass. 299 ; and the law is generally so considered elsewhere. Hatcher v. An- drews, 5 Bush, (Ky.) 561 ; Porter v. Noyes, 2 Greenl. (Me.) 26; Donnell v. Thompson, 1 Fairf. (Me.) 170 ; Smith v. Cannell, 32 Me. 126 ; Blanchard v. Blan- chard, 48 id. 177 ; Runnels v. Webber, 56 id. 488 ; Henderson v. Henderson, 13 Mo. 152 ; Durrett v. Piper, 58 id. 551 ; Ward v. Ashbrook, 78 id. 515 ; Walker v. Dea- ver, 79 id. 664 ; Russ v. Perry, 49 N. H. 549; Carter v. Denman, 3 Zab. (N. J.) 273 ; McAlpin v. Woodruff, 11 Ohio, 120; Hudson v. Steere, 9 R. I. 106 ; Jeter v. Glenn, 9 Rich. L. (S. C.) 376. The supposition that a possibility is not an in- cumbrance, because a possibility merely, is met by the anonymous case in Sir Fran- cis Moore's Rep. 249, pi. 393, and Haver- ington's case, Owen, 7. An apparent difficulty which some of the cases present has been caused by losing sight of the distinction between a techni- cal breach of this covenant, and a breach followed by such circumstances as give a right to actual damages. For where the covenant is, that the purchaser "shall en- joy free from all incumbrance," most un- questionably the covenant is not broken by the mere existence of a right of dower, whether inchoate or otherwise. But where the form of the covenant is that the prem- ises "are free from all incumbrance," then the covenant is as certainly broken by the existence at that time of a right of dower although it may be inchoate and contin- gent ; though at the same time if the purchaser then sue upon the covenant, his damages might be but nominal (see infra). But apart from the question of costs, the difference between a verdict for the de- fendant, and a verdict for the plaintiff with nominal damages, may be material. In Maine, the Revised Statutes provide for the measure of damages in an action for the breach of the covenant against in- cumbrances when the incumbrance is a right of dower ; Rev. Stat. Maine, 1883, p. 697. See infra, Ch. IX. 1 Almy v. Hunt, 48 111. 45 ; Ingalls v. Cooke, 21 Io. 560; Fuller v. Gillette, 9 Biss. (C. C. U. S.) 296 ; Mitchell v. Pills- bury, 5 Wis. 410. In Texas, the Revised Statutes provide that "the term 'incum- brances' includes taxes, assessments, and all liens upon real property ; " Rev. St. 1879, p. 93, art. 558. And the Code of Dakota has copied this literally ; 2 Levi- see's Rev. Code, 1883, p. 883, § 633. 2 Overstreet v. Dobson, 28 Ind. 256 ; Kirkpatrick v. Pearce, 107 id. 520 ; Blos- som v. Van Court, 34 Mo. 394 ; Cochran v. Guild, 106 Mass. 29 ; (in Hill v. Ba- con, 110 id. 387, this was not decided, but there having been a constructive eviction, the covenant of warranty was held to be broken ; see infra, Ch. VI.;) Blackie v. Hudson, 117 id. 181 ; Carr v. Dooley, 119 id. 294 ; Coburn v. Litchfield, 132 id. 449 ; White v. Stretch, 7 C. E. Gr. (N. J.) 76 ; Fagan v. Cadman, 46 N. J. L. 441 ; Cadman v. Fagan, 47 id. 549 ; Long v. Moler, 5 Ohio St. 272 ; Rundell v. Lakey, 40 N. Y. 513 ; Craig v. Heis, 30 Ohio, 550 ; Trotter v. Page, 7 Weekly Notes, (Phila., Pa.) 466; Hutchins v. Moody, 30 Verm. 656 ; s. c. 34 id. 433 (see Pierce v. Brew, 43 id. 292) ; Peters v. Myers, 22 Wis. 602. In nearly all of these cases the question of liability depended upon local legislation as to the time when the lien of the taxes attached, and sometimes upon the express provisions of the statute as to whether the vendor or purchaser was liable for the tax for the current year. In Spring v. Tongue, 9 Mass. 28, the subject of the sale was a pew, which the seller covenanted to be free from all in- cumbrance. By the act of incorporation, the pews were liable for any assessment which it might be necessary to make, and the plaintiff had been obliged to pay a cer- tain sum assessed for the deficiency of funds in building the church, the money arising from the sale of the pews not hav- ing made up the requisite amount for that purpose. The case was submitted without argument. The court briefly held : "We cannot consider this as an incumbrance 93 §77.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. sessments which, assessed after the execution of the deed, do not so relate back, 1 or of which, if assessed but not confirmed, the amount is not ascertained or determined. 2 So where there had been a judgment for taxes and sale and tax deed, a plea that the sale was not valid was held no bar to the action. 3 So where a testator devised to his daughter the right of living in part of a house, of which the whole was afterwards sold by the residuary devisee, such paramount right was held to be a breach of the covenant against incumbrances made by the latter. 4 So where the premises sold were subject to a covenant that no ardent spirits should be sold therefrom ; 5 or to a covenant that a certain fence should be erected or maintained ; 6 or to a restriction against building except in a particular way; 7 — all these have been held to be breaches of the covenant. It has been said, in several cases, that the covenant will be broken by the existence of a prior lease, 8 and this may be un- questionably true. It must be true in every case in which the for which the defendant is liable in dam- ages. The facts must have been equally- known to each of the parties. The damage to the plaintiff arose from the diminished value of the pews in the general estima- tion. Had the proceeds of the sale of the pews exceeded the cost of the house, the plaintiff would have had his proportion of the benefit. The loss therefore is properly his." In Clark v. Perry, 30 Me. 148, the defendant conveyed to the plaintiff ten shares in an incorporated company. The assets at the time were not equal to the debts, which a general law of the State made the shares liable for, and it was held that this liability was a breach of the cove- nant against incumbrances, and in refer- ring to Spring v. Tongue the court said, "It does not appear but that the pews at the time of the sale to the plaintiff were equal in value to the amount of the ex- penses. But in the present case it is stated that the assets were not equal to the liabilities at the time of the conveyance." 1 Langdale v. Nicklaus, 38 Ind. 289 ; Tull v. Royston, 30 Kans. 617 ; Barlow v. St. Nicholas Bank, 63 N. Y. 399 ; Lathers r. Koegh, 46 N. Y. Supr. Ct. 576 ; Jack- son v. Sassaman, 29 Pa. 109. 2 Dowdney v. Mayor of New York, 54 94 N. Y. 186 ; De Peyster v. Murphy, 66 id. 622. 3 Vorhis v. Forsythe, 4 Biss. (C. C. U. S.) 409. * Jarvis v. Buttrick, 1 Met. (Mass.) 480. 5 Hatcher v. Andrews, 5 Bush, (Ky. ) 561. « Burbank v. Pillsbury, 48 N. H. 475 ; (Blain v. Taylor, 19 Abb. Pr. (N. Y.) 228, was a case of an executory contract ;) Kellogg v. Robinson, 6 Venn. 276 ; Bran- son v. Coffin, 108 Mass. 175 ; Richardson v. Tobey, 121 id. 457. Parish v. Whituey, 3 Gray, (Mass.) 516, was held otherwise, on the supposed ground that the stipula- tion in the deed that the grantee should maintain the fence was a personal cove- nant, merely binding him and his repre- sentatives, but not affecting the estate. In Branson v. Coffin, supra, it was held to bind the estate. 7 Ayling v. Kramer, 133 Mass. 12 ; Roberts v. Levy, 3 Abb. Pr. (N. Y.) 311. As to easements, see infra, § 79. 8 Van Wagner v. Van Nostrand, 19 Io. 422; (in Gale v. Edwards, 52 Me. 360, the lease was expressly excepted from the covenant ;) Batchelder v. Sturgis, 3 Cush. (Mass.) 201 ; Grice v. Scarborough, 2 Spears, (S. C.) 649. § 78.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. existence of the lease, the possession under which is not apparent, did not, according to competent evidence, form part of the subject of the contract and pass to the purchaser as an incident of the reversion. 1 At the same time it must be far from having a gen- eral application. Thus where the lease was only executory and dependent for its effect upon some act of the lessor which he had never performed, it was held that there was no breach. 2 So where the purchaser received from the vendor, at the execution of the conveyance, an assignment of two prior leases of the premises and notified the tenants to pay the rents to him, the existence of the leases was obviously held to be no breach. 3 § 78. And it is conceived that in practice, in the ordinary case of the sale of improved property which is tenanted, and of which by the terms of the contract the rent passes with the reversion, few vendors ever dream of specially excepting the lease from the operation of a covenant against incumbrances. An apportion- ment is usually made, up to the date of the deed or of the delivery of possession, of the taxes, interest on incumbrances, water-rent, and the like, on the one hand, and of the rent, on the other; the former being paid by the vendor and the latter by the pur- chaser, to whom the tenant then attorns and pays the rent when due. Here it would seem impossible to call such a lease an in- cumbrance. 4 At the same time, it should be observed that in 1 Anonymous, F. Moore's R. pi. 393 ; tain the action, as he had had the benefit Haverington's case, Owen (temp. Eliz. ), of the incumbrance; but as the case was 7 ; Porter v. Bradley, 7 K. I. 538 ; Taylor presented upon demurrer to a plea that v. Heitz, 87 Mo. 660. Thus, in Batchel- the plaintiff had notice of the lease, judg- der v. Sturgis, siqira, the covenantee, hav- ment was of course given for the plaintiff, ing proved that the plaintiff had notice of 2 Weld v. Traip, 14 Gray, (Mass.) 330; the lease, gave in evidence a certain agree- Cross v. Noble, 67 Pa. 77. ment, bearing even date with the convey- 3 Pease v. Christ, 31 N. Y. 141. This ance, which he contended established an decision might also have been obviously accord and satisfaction ; but the court put on the ground of equitable estoppel ; held, "If this agreement shows anything, see infra, Ch. XI. it shows that the lease should have been 4 Kellum v. Berkshire Ins. Co., 101 exempted from the deed. But not having Ind. 455 ; Haldane v. Sweet, 55 Mich, been exempted from the deed, the evi- 196. The doctrine that between tenants dence was not of a character to control the and purchasers "whoever purchases an legal effect and operation of the covenants estate from the owner, knowing it to be in the deed." So in Grice v. Scarborough, in the possession of tenants, is bound to supra, it was suggested that, if the plain- inquire into the estates those tenants tiff had acquired a title to the rent reserved have," (Taylor v. Stibbert, 2 Ves. Jr. 437 ; on the lease, which passed to him by the Hall v. Smith, 14 id. 433; Daniels v. deed under the statute of 32 Hen. VIII. Davison, 16 id. 254; 17 id. 433,) was, or in analogy thereto, he could not main- in the somewhat recent case of James v. 95 §T8.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. case of deficiency of proof as to what was the subject matter of the contract, the vendor would be, at least so far as a technical Lichfield, L. R. 9 Eq. 51, applied between vendor and purchaser. The purchaser filed a bill for specific performance with a deduction for compensation, on the ground that the tenant in possession had a lease for twenty-one years ; and while admit- ting that he was aware that the tenant was in possession, alleged that until he had received the draft of the articles of sale he was not aware that the tenancy was more than from year to year, and alleged moreover that the property was in a building neighborhood, and that he bought for building purposes, to which end immediate possession was essential ; but the Master of the Rolls (Lord Rom- illy) dismissed the bill with costs, un- less the plaintiff should elect to take the property without compensation. "If the purchaser," said he, " knowing of the ten- ancy, is bound to inquire as regards the tenant, as to his interest in the land, and if the purchaser must be taken to be bound to know what would be the result of such inquiry as regards the tenant, why should he not be so bound as re- gards the vendor ? And if the purchaser chooses to bind himself by agreement with this vendor, knowing of the tenancy but without having accurately ascertained what was the extent and character of it, and what the results of such inquiry would have led to, he must, as it appears to me, be bound in the same manner as regards all other persons. I think also that no distinction can properly be drawn in a court of equity on the ground that the matter rests in contract and that the conveyance of the legal estate has not been made to him. The purchaser bound him- self by contract. He must be taken to have had present to his mind all those things of which he had notice, and those things which necessarily flowed from and were incidental to that notice. He knew that Allen was tenant of this land; he was bound to inquire what the tenancy was, unless he was willing to be bound by the tenancy whatever it was." This de- cision was approved in Phillips v. Miller, h. R. 9 C. P. 196, where the defendants, 96 the owners of farm lands, contracted with their tenants to surrender possession on a certain day in consideration of payment for their hay, &c. at "market value," instead of the somewhat lower rate estab- lished for outgoing tenants by the custom of the country, and known as "fodder value." The defendants thus sold the lands to the plaintiff. In the contract of sale, the tenancies and the day fixed by the contract for their expiration were mentioned, but there was no reference to the contract and the plaintiff knew noth- ing about it. He afterwards obtained full information, and at the execution of the deed, which contained the usual covenant against incumbrances, it was agreed in writing that the settlement should be with- out prejudice to the plaintiff's claim for compensation, if he should be entitled to it, for loss he might sustain on account of the contract. The tenants surrendered possession on the appointed day, and were paid "market value" for their hay, &c. by the plaintiff, who then brought suit for compensation. " It was contended for the plaintiff," said Coleridge. C. J., deliv- ering the opinion of the court, " that, upon the true construction of the contract, he as purchaser had not got what the vendors contracted to sell him, and that he had therefore a right to succeed on purely legal grounds ; and further, that, if recourse were had to the doctrines of equity, notice in the particulars of sale that these farms were in the hands of tenants was not notice of the equities of such tenants, and that therefore, upon equitable grounds also, he was entitled to succeed. ... In order to succeed in his legal contention, the plaintiff must estab- lish that the true construction of the con- ditions in the particulars of sale is, that the farms are to be conveyed free from all claim of the tenants to be paid on the ter- mination of their tenancies at a higher rate than fodder value ; and further, that the arrangements with the tenants above set forth were not terms of the holdings or incident to them, but were in truth independent and collateral agreements as §79.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. breach was concerned, at the mercy of his purchaser, while if his only evidence were parol proof that the lease was to be excepted from the covenant, it would fall within the general principle already referred to and be unhesitatingly rejected. 1 § 79. Again, it has been said that the covenant is broken by to the terms on which the tenancies should be determined, or claims and incumbrances other than any of those specified in the particulars and conditions, and which therefore the plaintiff, if he paid them, has a right in some fomi to recover from the vendors. Neither proposition appears to us to be established. ... It was con- tended," continued the court, in regard to the equitable view of the case, "that it was the duty of the vendors to have stated the particulars of these agreements, and that, if damage accrued to the purchaser in consequence of the non-fulfilment of this duty, he could recover it from the vendors. ... It is perhaps unnecessary, after the opinion we have expressed upon the contract itself, to decide this question. But we are not satisfied that there is any such duty as that contended for. For cer- tain purposes and between certain parties it is clear that notice of a tenancy is notice of a tenant's equities." After reviewing the cases already cited, and quoting the opinion in James v. Lichfield, the court concluded, "On this state of the authori- ties, there would seem to be good ground for holding, if it were necessary, that there was here nothing to ground an ac- tion for damages against the vendors for any breach of duty," and judgment was entered for the defendant. A different opinion, however, was ex- pressed in Caballero v. Henty, L. R. 9 Ch. App. 447, a case decided about the same time as Phillips v. Miller, though neither contains a reference to the other. The owner of a public house put it up with oth- er real estate for sale at auction. In the conditions of sale it was stated that " the properties are sold subject to the several tenancies now existing." A brewer, in- tending to use the house for the sale of his beer, agreed to buy it ; but the contract which he signed contained no reference to a lease. He afterwards learned that the house was leased to another brewer for a term of which eight years were unexpired, and thereupon refused to complete the pur- chase unless the lease should be surren- dered. The vendor declined to obtain a surrender, and filed a bill for specific per- formance. The Master of the Rolls (Sir George Jessel) dismissed the bill, and on appeal his decision was sustained, because in the signed agreement there was no reference to the lease. No ^oom, there- fore, remained for the application of the doctrine of James v. Lichfield, which was the main ground of the plaintiffs conten- tion, but James, L. J., in the course of the opinion said : "There is no pretence for the case made by the plaintiff, that a person who wants to buy such property and has notice of the occupation of a ten- ant is bound to go and inquire of the tenant what is the nature of his tenancy. For this proposition, James v. Lichfield was cited as an authority. In that case there certainly are some dicta which nearly go to that extent, and which support the notion that the doctrine of Daniels v. Davison (supra), applies between vendor and purchaser and whilst the matter still rests in contract. It is not necessary to deal with that case, but I am not at pres- ent prepared to assent to any such propo- sition. The doctrine in question seems to me to refer to equities between the pur- chaser and the tenant when the legal estate has passed, and to have nothing to do with the rights and liabilities of vendors and purchasers between themselves. If there is anything in the nartire of the tenancies which affects the property sold, the ven- dor is bound to tell the purchaser, and let him know what it is which is being sold ; and the vendor cannot afterwards say to the purchaser, ' If you had gone to the tenant and inquired, you would have found out all about it.' " 1 See siqira, § 76. 7 97 80.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. the existence of any easements or servitudes to which the land is subject ; 1 and as a general proposition this may be also true. Thus the existence of a paramount private right of way ; 2 or, it has been held, of a right of way for a railroad ; 3 a right to cut and maintain a drain, 4 or other artificial water-course ; 5 a right to cut timber (or " woodleave " as it is sometimes called) ; 6 and in some cases, it is said, a right to dam up and use the water of a stream running through the land conveyed ; 7 — all these have been held to be incumbrances within the scope of the covenant. So it has been held in New York, both as between lessor and lessee, and vendor and purchaser, that the covenant was broken by the adjoining owner having the right to use the party-wall; 8 but in a case in Iowa, between vendor and purchaser, the decision was the other way. 9 § 80. In such and similar cases, much will depend upon the nature of the easement. The right to draw water, or to use a party wall, is one not physically apparent, 10 though there may be obvious cases in which the physical condition might be such as to 1 Mitchell v. Warner, 5 Conn. 508. The point decided in this case, however, viz. that, although a covenant may run with the land, it will not run when the hreach relates to water, has been so much controverted, that it must he con- sidered as practically overruled. See Wilson v. Cochran, 46 Pa. 233 ; and infra, Ch. X. 2 Wilson v. Cochran, supra ; Russ v. Steele, 40 Verm. 310 (in this case, though the deed contained covenants both against incumbrances and of warranty, yet the plaintiff, being an assignee of the land, conld not have recovered upon the former covenant, it being broken as soon as made, see infra, Ch. X. ; but the court consid- ered the adverse occupation and user of the right of way as an eviction ; the law was held the other way in McMullin v. Wooley, 2 Lans. (N. Y.), 394, as to the right to draw water from a spring) ; Mc- Gowen v. Myers, 60 Io. 256 ; Blake v. Everett, 1 Allen, (Mass.) 248 ; Weatherbee v. Bennett, 2 id. 428. 8 Beach v. Miller, 51 111. 206 ; Barlow v. McKinley, 24 Io. 70 ; Kostendader v. Pierce, 37 id. 645 ; Gerald v. Elley, 45 id. 322 ; Butt V. Riffe, 78 Ky. 352. 98 4 Smith v. Sprague, 40 Verm. 43. 5 Prescott v. White, 21 Pick. (Mass.) 341. The distinction taken by the cases between an artificial and a natural water- course will be noticed presently ; and in this case, the jury having subsequently found that the water-course was natu- ral (Prescott v. Williams, 5 Met. (Mass.) 433), it was held not to be an incum- brance. 6 Cathcart v. Bowman, 5 Pa. 319; Spurr v. Andrew, 6 Allen, (Mass.) 420; and in the latter case parol evidence was of course held inadmissible to prove that the trees were not to pass with the land ; see infra. 7 Morgan v. Smith, 11 111. 199 ; Ginn v. Hancock, 31 Me. 42 ; Rosenberger v. Kel- ler, 33Gratt. (Va.) 489. 8 Mackey v. Harmon, 34 Minn. 168 ; Giles v. Dugro, 1 Duer, (N. Y.) 331 ; Mohr v. Parmelee, 43 N. Y. Super. Ct. 320 ; Edmund's App., 19 Weekly Notes, (Phila., Pa.) 59. 9 Bertram ?;. Curtis, 31 Io. 46. Possi- bly local provisions as to party walls may reconcile these cases. The decision in Iowa seems at all events to be correct. 10 Edmund's App., supra. § 80.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. put a purchaser upon inquiry, 1 and come within the class of " such incumbrances as affect the title ; " 2 " but when there is a servitude imposed upon the land which is visible to the eye and affects not the title but the physical condition of the property," 3 while there is a class of cases which holds that a different rule prevails, there are others which seem to decide that even these are incumbrances. The most obvious of such servitudes are public roads or highways. It has been already said that such a way has been held to be no breach of the covenant for seisin, inasmuch as the freehold still remains in the owner of the soil, although the public may have the right of passage over it. 4 But in the early case in Massachusetts of Kellogg v. Ingersoll, 5 a public town road or way duly laid out " by the town of A. for the use of all its inhabitants," 6 which was the breach assigned, was held to be an incumbrance. " It is a legal obstruction to the purchaser," said the court, per Parsons, C. J., " to exercise that domain over the land to which the lawful owner is entitled. An incumbrance of this nature may be a great damage to the pur- chaser, or the damage may be very inconsiderable, or merely nominal. The amount of damages is a proper subject of consid- eration for the jury who may assess them, but it cannot affect the 1 Thus in the very recent case of Eddy was by the deed a boundary, and its ex- v. Chace, 140 Mass. 471, land was sold istence and grade fixed by the city, and " bounded southerly by the highway to the right to damages was personal to land to William Mitchell's mill privilege," the grantor, neither its existence nor the and in an action on the covenant against grantor's release of damages was a breach incumbrances the defendant contended of the covenant. that the plaintiff was fully notified of the 2 Memmert v. McKeen, 112 Pa. 315. incumbrance of the privilege by reference 3 Ibid. to it in the deed ; but the court held that 4 See supra, § 59. the descriptive part of the deed merely re- 5 2 Mass. 101. This case, it should ferred to the Mitchell land as a monument be observed, was decided upon a question or boundary, and could not by any rule of of pleading, the defendant having in his construction be held to take the privilege plea alleged that the premises were free out of the operation of the general cove- from incumbrance. nants of the deed. On the other hand, 6 It was not stated that the road was in Patten v. Fitz, 138 Mass. 456, where opened as well as laid out, but this would land was conveyed with a covenant against seem to be assumed by defendants' counsel, incumbrances, and described as bounded who argued, "It appears by the plain- " westerly on Austin St.," which was origi- tiffs' own showing to have been a public nally a private way, but at the instance town way before and at the time of mak- of the grantor and upon his release of ing the deed. It must, therefore, have damages had been duly laid out on the city been known to the parties, and the terms plan as a public street and at a lower of their contract were of course adapted grade, the court held that as Austin St. to it." 99 § 81.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. question whether a public town road is, in legal contemplation, an incumbrance of the land over which it is laid." § 81. In New York, however, although the question was not directly decided in the case of Whitbeck v. Cook (the covenant sued upon being that for seisin), yet a strong doubt was there expressed whether a public road could properly be deemed an incumbrance ; 1 while in Pennsylvania, when the question was presented in Patterson v. Arthurs, 2 it was decided in the negative. The court expressed its surprise that a highway should ever have been imagined an incumbrance within the covenant, and its belief that it had been the universal understanding of both sellers and purchasers in Pennsylvania that the covenant against incum- brances did not extend to public roads. " Although a public high- way, no doubt, is in many instances an injury instead of a benefit to the holder or owner of the land upon which it is located, and therefore tends to lessen its value in the estimation of a purchaser, yet it is fair to presume that every purchaser, before he closes his contract for his purchase of land, has seen it and made him- self acquainted with its locality and the state and condition of it ; and consequently, if there be a public road or highway open and in use upon it, he must be taken to have seen it, and to have 1 15 Johns. 4S3. "It must strike any Wilson v. Cochran, infra, p. 101, n. 3, were one with surprise," said Spencer, J., "that approvingly cited, and it was held that an a persou who purchases a farm through injunction obtained by a village restrain- which a public road runs at the time of ing a purchaser from enclosing a portion purchase, and had so run long before, who of his lot which had been dedicated by must be presumed to have known of the his grantor as a street, was no breach of existence of the road and who chooses to the covenant of warranty ; the opening of have it included in his purchase, shall a public street was not a sufficient evic- turn round on his grantor and complain tion. Whether such a street was a breach that the general covenants in the deed of the covenant against incumbrances was, have been broken hy the existence of what the court said, a question on which the de- he saw when he purchased, and what must cisions of the various States do not agree, have enhanced the value of the farm." referring to 3 Washburn on Real Property And it was added, "The case of Kellogg v. (oth ed. ), 491 et seq. Ingersoll has been cited to show that the 2 9 Watts, 152, per Kennedy, J. The existence of a town road is a breach of the case, however, was not an action brought covenant of incumbrances. The first an- on a covenant against incumbrances, but swer to that case is, that the plaintiff here an action by a vendor on an executory counts on no such contract ; and the sec- contract for the purchase money of certain ond is. that we should choose to consider lots, covenanted to be conveyed clear of all the point further before we consented to incumbrances, and the purchaser claimed the doctrine of that case." In the very a deduction because of a public road which recent case of Hymes v. Esty, 43 N. Y. passed diagonally over the ends of the lots, Supr. C. It. 147, Whitbeck v. Cook, and and had been in use for thirty years. 100 § 81.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. fixed in his own mind the price that he was willing to give for the land, with a reference to the road, either making the price less or more, as he conceived the road to be injurious or advan- tageous to the occupation and enjoyment of the land. . . . The existence of the highway could not be regarded as an incumbrance that came within the meaning of the parties when they used the term ' incumbrances ' in their contract ; 1 and hence an action of covenant could not be sustained on account of it for a breach of the covenant against incumbrances." 2 The authority of this case as it was presented to the court has since been distinctly recognized in the same State ; 3 and in somewhat recent cases it 1 This, as matter of law, was perhaps a little broadly stated. It is, however, set- tled that the covenants for title do not extend to the acts of the State in its ex- ercise of sovereignty. Dobbins v. Brown, 14 Pa. 80 (the objection to the decis- ion in this case may be that the ven- dor had released to the State his right to compensation ; see infra, Ch. VI.) ; Bai- ley v. Miltenberger, 31 id. 41 ; Dyer v. Wightman, 64 id. 427 ; Brimmer v. City of Boston, 102 Mass. 19 ; Cooper v. Blood- good, 32 N. J. Eq. 209 (and see the re- porter's note to that case) ; Smith v. Hughes, 50 Wis. 620. This is well shown by the many recent cases in which it has been uniformly held that where slaves were, prior to the late rebellion, sold with a covenant of warranty that they were slaves for life, the covenant was not broken by reason of their subsequent emancipa- tion under the President's proclamation. Phillips v. Evans, 38 Mo. 314 ; Fitzpatrick v. Hearne, 44 Ala. 171 ; Haskill v. Sevier, 25 Ark. 152; Willis v. Haliburton, id. 173 ; Walker v. Gatlin, 12 Fla. 9 ; Hand v. Armstrong, 34 Ga. 232 ; Whitworth v. Carter, 43 Miss. 61 ; Osborn v. Nicholson, 13 Wall. (S. C. U.S.) 655. 2 The opinion in Patterson v. Arthurs seems to have been largely based upon the general understanding as to this point throughout the State, and Kellogg v. Tn- gersoll was cited, and supposed to have proceeded upon a general contrary under- standing ; although this does not appear in that case or in the others decided in New England. But in Pennsylvania there were reasons for such an understanding, dating from the, first settlement of the colony, and these are partially referred to in Wilson v. Cochran, infra. 8 Wilson v. Cochran, 46 Pa. 233 ; s. c. 48 id. 107. Speaking of Patterson v. Ar- thurs, the court said (per Woodward, C. J.) : "That was an action by a vendor for the first instalment of the purchase money of certain lots covenanted to be conveyed clear of all incumbrances, and the pur- chaser claimed a deduction because of a public road which passed diagonally over the ends of the lots and had been in use for thirty years. His defence was not sustained. Although this case has been severely criticised several times, and es- pecially by Ch. J. Redfield, in Butler v. Gale, 1 Will. (Verm.) 742, it is not neces- sary for any present purpose of ours to question it, for it is broadly distinguish- able from the case before us. Public roads are laid out in Pennsylvania by authority of the law, in pursuance of the authority of Penn, who established the custom of allowing to every grantee of land six acres in the hundred, as a com- pensation for the roads that should there- after be opened, and they confer on the public merely a right of passage, whilst the title to the soil is left undisturbed in the owner of the land through which they pass. A purchaser who sees such a road, that has been used thirty years upon the land he is buying, has no right to consider it an incumbrance within the meaning of a covenant against incum- brances. If it is not a positive benefit to the premises, he is presumed to have esti- mated its disadvantages in adjusting the 101 82.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. has been held that a legal public highway, or a railway in actual use, is no breach of a covenant against incumbrances, 1 nor is a public or semi-public alley which is open to observation. 2 § 82. But whatever weight may be due to these decisions, it cannot be denied that the current of authority has set strongly the other way, and the ruling in Kellogg v. Ingersoll has been approved and sustained in nearly all the New England States, 3 and many others, 4 in which it appears to be definitively settled that a public highway does constitute at law a breach of this covenant. In Illinois, while these decisions have been approved, yet recent statutory enactment has provided " that no covenant of price he has agreed to pay." So general was the understanding as to the allowance for roads, that although the Declaration of Rights in the Constitution provided that no one's property should be taken or applied to public use "without just com- pensation being made," it was held that an act of the legislature authorizing a turnpike company to lay out and open roads, without compensation, was no in- fringement of the Constitution, " such compensation having been originally made in each purchaser's particular grant." McClenachan v. Curwin, 3 Yeates, 373. The more recent case of Peck v. Jones, 70 Pa. 83, was an action of scire facias on a mortgage for part of the purchase money of land which the plaintiff had conveyed with general warranty to the defendant. The affidavit of defence al- leged that, before the conveyance, there had been laid out through the land a public street, which, when opened, would cause damages far in excess of the amount of the mortgage. But the court held that this was no defence, and relied on Patter- son v. Arthurs, supra, which, said Shars- wood, J., " expressly decides that a public road upon lots of ground which the owner had covenanted to sell and convey is not such an incumbrance as will entitle the vendee to defalk from the amount of the purchase money in an action of covenant upon the agreement of, sale." This was distinctly affirmed by the same court in the very recent case of Memmert v. Mc- Keen (supra, p. 91, n. 1). This court, however, maintains the clear distinction between servitudes which affect the title 102 and those physically apparent. Thus in People's Savings Bank v. Alexander, 3 Central Reporter, 388, the purchaser re- sisted a bill for specific performance on the ground that, many years before, the city authorities had laid out and ordered to be opened a public street across the premises, but nothing more was done, there was no physical appearance of the street, and neither party to the contract knew of it, and the court refused specific performance and dismissed the bill, though Patterson v. Arthurs and the other cases were strongly relied on for the plaintiff. 1 Scribner v. Holmes, 16 Ind. 142 ; Burk v. Hill, 48 id. 52 ; Kutz v. McCune, 22 Wis. 628; Smith v. Hughes, 50 id. 620. Of course a public highway which is one of the boundaries of land conveyed is not an incumbrance on the land. Frost v. Angier, 127 Mass. 212; Patten v. Fitz, 138 id. 456; King v. St. Patrick's Cathe- dral, 50 N. Y. Sup. Ct. 406. 2 Haldane v. Sweet, 55 Mich. 196. 3 Herrick v. Moore, 19 Me. 313 ; Haynes v. Young, 36 id. 557; Pritchard v. Atkinson, 3 N. H. 335; Butler v. Gale, 1 Will. (Verm.) 742 ; Parish v. Whitney, 3 Gray, (Mass.) 516; Hubbard v. Norton, 10 Conn. 422. The language of the court in this last case was cited at length in the fourth edition of this treatise, p. 104. 4 Desvergers v. Willis, 56 Ga. 515; Burk v. Hill, 48 Ind. 52 ; Kellogg v. Malin, 50 Mo. 496, where the subject was elabo- rated; s. o. 62 id. 429; Jordan v. Eve, 31 Gratt. (Va.) 1. 83.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. warranty shall be considered as broken by the existence of a highway on the land conveyed, unless otherwise particularly specified in the deed ; " * and in Vermont also it is provided that " where real estate is conveyed by deed, the existence of a public highway over or upon any part of such estate shall not be treated as a breach of the covenant of seisin 2 or warranty, or any cove- nant against incumbrances contained in such deed, unless the parties to such deed expressly refer to, and covenant against, such highway." 3 In the former State, this doctrine has also been held to apply where the incumbrance complained of was the right granted to a railway company to construct their road across the land conveyed, 4 a right to overflow the land, 5 or the like. § 83. The partial variance of decision which thus exists with respect to highways has been extended to another class of ease- ments, viz. those connected with certain rights of water. The existence of a paramount right to take water from a spring upon the land conveyed, and the incidental right of way over the land, have obviously been held to be incumbrances. 6 So of the right to dam up and raise the water in a branch of a stream running across the land, 7 and to erect and maintain a dam with sluices. 8 1 Rev. St. 1883, p. 286. 2 It has, however, heen considered that the existence of a highway is no breach of the covenant for seisin, since although the public may have a right of passage over the way, the freehold technically re- mains in the owner of the soil. See supra, Ch. III. § 59. 3 Rev. Laws, 1880, p. 586. * Beach v. Miller, 51 111. 206. The defendant had granted a right of way to a railroad company, and the road was built and in operation across the land when it was conveyed to the plaintiff. " Was this right of way," said the court, "an incum- brance upon the land ? We think it was. It is true, the authorities on this question are not harmonious, but we think the current holds such an easement to be an incumbrance, and that they are sup- ported by the better reason. . . . If, then, a private or public way is an incum- brance, and we have seen that it is, it follows that in principle a turnpike or railway, legally located and running over a piece of land, upon the same ground, and for the same reasons, must be held to be an incumbrance, as it in an equal or greater degree obstructs or incumbers the free use of the land. And a person selling land thus incumbered, and covenanting that it is not, must be held to perform his covenant by its removal, or respond in damages." 5 Patterson v. Sweet, 3 Bradw. (111.) 550. The grantor, while holding the equi- table title only, conveyed to a third party a right to flow a portion of the land, and, after acquiring the legal title, conveyed the fee to the plaintiff. The land was actually flooded, but whether before or after the conveyance to the plaintiff does not appear from the report. 6 Harlow v. Thomas, 15 Pick. (Mass.) 66 ; Morgan v. Smith, 11 ill. 194 ; Mitch- ell v. Warner, 5 Conn. 497; Lamb v. Dan- forth, 59 Me. 322. 7 Morgan v. Smith, Lamb v. Danforth, supra. 8 Ginn v. Hancock, 31 Me. 42. 103 §83.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. But in a case in Massachusetts, it was considered first, that the existence of the right of a mill-owner above the land conveyed to have a natural stream of water pass freely over the land below, was not itself an incumbrance ; and secondly, that this right drew with it the incidental one to enter on the land below and remove obstructions. 1 In a later case, where an upper and lower mill and dam had been conveyed by their owner to different parties, the existence of the lower dam, with the right of raising water by it to the height at which it stood at the time of the conveyance, was held to be no breach of the covenant against incumbrances con- tained in the conveyance of the upper mill. 2 And the rule in regard to the flowage of land for mill purposes seems to be that the statutory right to damages passes to successive owners of the flowed land as an incident of their estate, but that the flowage is not an incumbrance until the right to damages is legally extinguished by assessment and payment, grant, prescription, or the like. 3 1 Prescott v. Williams, 5 Met. (Mass.) 429; though it was also said that the exer- cise of this incidental right was to he confined within the strictest limits com- patible with the enjoyment of the princi- pal easement. 2 Cary v. Daniels, 8 Met. (Mass.) 466. 8 In Fitch v. Seymour, 9 Met. (Mass.) 462, it was considered that by the local mill acts (as to which see also Ballard v. Ballard Vale Co., 5 Gray, (Mass.) 468) a right was given to flow land for working a mill; that the law did not regard this as an incumbrance so long as a right to com- pensation existed, and as that right to compensation had not been, in that case, validly released by the covenantee, by rea- son of its being by parol, it still existed, and the easement itself was, therefore, no incumbrance. "Strictly speaking," said the court, "the right given by the mill acts to the mill-owner is not that of flow- ing, or making any other direct use of his neighbor's land adjacent to the stream above his own, but only to raise a dam on his own land to a height sufficient to raise a suitable head of water, and to continue the same to his own best advantage, although the land of another is thereby flowed. We do not, however, mean to say that a right to keep up such head of water, without pavment of damages, may 104 not, under some circumstances, be an in- cumbrance on the land." In the later case of Craig v. Lewis, 110 Mass. 377, it was held that an unsealed receipt given by the owner of flowed land to the owner of the dam, acknowledging "full payment of all dues or demands for damage," and " discharging him from all liability for any flowage," did not estop a subsequent owner of the flowed land, whose deed from the original owner contained a covenant against incumbrances except the right of flowage and a declaration that no such right was admitted, from recovering from the owner of the dam, by statutory pro- ceedings, damages for flowage after the date of the deed; and the court said: "The right of flow for mill purposes . . . is given by statute, and there is left in the land-owner only a claim for damages, to be ascertained and enforced in proceedings under the mill act; a claim for money only, which may be satisfied or released by parol, and which, so far as concerns pres- ent owners, is a mere personal right. But this right to damages passes to each suc- cessive owner of the land as an incident of the real estate until it has been extin- guished. It may be barred by grant of the owner executed with due formality, giving the right to flow permanently without compensation. It may be lost by pre- §84.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. An examination of the cases in Massachusetts, as also in Maine, Wisconsin, and perhaps some other States, would seem to show that they were, at least to some extent, based upon local statutes relating to mills and mill streams, 1 and that they do not extend to easements in general. 2 § 84. However this may be, the doctrine of these cases, in their broader signification, has been adopted elsewhere. Thus in New Hampshire the respective owners of the upper and the lower land constructed by agreement an artificial raceway, short- ening the courses of a brook which flowed through their lands, and the lower owner afterwards conveyed to the upper owner, and the plaintiff, then being the owner of both the parcels, con- veyed part of the lower land to a third party, referring to both the raceway and the brook as monuments, it was held in a very elaborate opinion that the plaintiff's covenant against incum- brances did not prevent him from recovering damages against scription. And the assessment and pay- ment of gross damages in proceedings under the mill act will without doubt extinguish the future right, and to that extent charge the land with an incum- brance." And in the very recent case of Isele v. Arlington Savings Bank, 135 id. 142, the court held that a settlement by agreement under seal, duly recorded, be- tween the owner of the flowed land and the owner of the dam, to the effect that all subsequent owners of the land should be barred from suing for damages un- der the mill acts by reason of such flow- age, created an incumbrance which was a breach of the covenants against incum- brance and of warranty in a subsequent conveyance of the flowed land; and Dev- ens, J., delivering the opinion of the court, said: "The act of the mill-owner in flow- ing the land above him is the exercise of a statutory right, and it is equally a statu- tory right that the owner for the time being of the land flowed shall have com- pensation therefor. The right to dam- ages, when this statutory right of flowing is exercised, passes to each successive owner of the land, as an incident to the real estate, until it has been legally extinguished. If a proprietor deprives his estate of this incident, as he may do, and then sells it, he has incumbered it by his own act." 1 See Gould v. Boston Duck Co., 13 Gray, (Mass. ) 442. 2 Thus, in Carbrey v. Willis, 7 Allen, (Mass.) 364, it was said : " It is a familiar principle, that in a grant of a messuage, a farm, a manor, or a mill, many things will pass which have been used with the prin- cipal thing as parcel of the granted prem- ises, which would not pass under the grant of a piece of land by metes and bounds. In such cases, it is only a question of the construction of the terms of description. But where there is a grant of land by metes and bounds, without express reser- vation, and with full covenants of warranty against incumbrances, we think there is no just reason for holding that there can be any reservation b} r implication, unless the easement is strictly one of necessity. AVhere the easement is only one of existing use and great convenience, but for which a substitute can be furnished by reasonable labor and expense, the grantor may cer- tainly cut himself off from it by his deed, if such is the intention of the parties. And it is difficult to see how such an in- tention could be more clearly and dis- tinctly intimated than by such a deed and warranty." 105 § 84.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. the defendant, who, claiming under the plaintiff's grantee, had erected a railroad and embankment across the watercourse to the plaintiff's damage ; it being considered that nothing which con- stitutes a part of the estate, or which, as between the parties, is to be regarded as an incident to which the estate is subject, can be deemed an incumbrance. 1 So in Vermont, where S., who owned a mill-pond and surround- ing lands parts of which were sometimes flooded, sold to the plaintiff's grantor parcel of this land adjacent to and not bounded by the pond, by deed containing a covenant against all incum- brances, it was considered that while S. owned all the land the idea of any easement could not attach to such a treatment and use of the stream of water relatively to the adjacent land ; that the land, with the stream and use of it as a water privilege, con- stituted an entire estate, and the dam and the use of it were parcel of it, and neither an easement nor an incumbrance ; and that the deed from S. did not divest him of his right to flood the land otherwise than might consequentially result from his cov- enant against incumbrances, but " such covenant has relation to rights existing in, or in relation to, the property conveyed, ap- pertaining to parties other than the grantor, and which may be claimed and exercised and enforced upon and against such property, as against such grantor and his assigns." 2 So in a somewhat recent case in Wisconsin, where the land con- veyed had been, for a time long enough to create a prescriptive right, flooded by a mill-pond created by a dam on other adjoining property, it was held that this right of flooding was not an incum- brance within the covenant ; that purchasers of property, which 1 Dunklee v. Wilton Eailroad Co., 4 said property. Is it matter of legal in- Fost. (1ST. H.) 489. tendment that the grantor should, by force 2 Harwood v. Benton, 32 Verm. 724. of such covenant, be estopped from exer- " It is obvious," continued Barrett, J., rising any right which, if it had existed who delivered the opinion, "that, in this in and been exercised by a third person, sense, no such incumbrance existed upon prior to said conveyance by Safford, would the property now owned by the plaintiff, have constituted an incumbrance ? So to while the title to it was in Safford. Of hold would seem to be giving to such a course, then, at the moment of passing covenant a scope and effect beyond what the title and making the covenant by the has been regarded as its ordinary and legal delivery of the deeds, the property was limits, and no precedent or authority has free from incumbrance, and so there could been cited to justify us in so holding." not have been a breach at that time, in See also Swasey v. Brooks, 30 Verm. 692 ; virtue of the state of the title to, or of s. c. 34 id. 451, overruling in part Ver- rights then existing in or in respect to mont R. R. v. Hills, 23 id. 681. 106 § 85.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. was obviously and notoriously subject at the time to some ease- ment or servitude affecting its physical condition, take it subject to such right, without any express exceptions in the conveyance, and that the vendors are not liable on their covenants by reason of its existence ; 1 and in a later case the same doctrine was ap- plied to railways and other highways. 2 In a somewhat recent case in Maryland, the owner of two ad- joining lots leased the east lot for a renewable term of ninety-nine years, and covenanted that the lessee should have the right to open certain windows deriving their light from the west lot; he subsequently conveyed the latter with a covenant of warranty against his own acts, 3 and in an action brought by its purchaser it was held that the existence of the windows and the right to their continuance were not a breach of the covenant. 4 § 85. In considering these cases which thus decide that such easements as highways and rights of water and light are not so to be deemed incumbrances, they seem to proceed upon the ground that such easements are always impliedly reserved in favor of the grantor whenever the burden is apparent and neces- sarily results from the situation of the property ; in other words, that the generality of the covenant is limited and qualified by 1 Kutz v. McCune, 22 Wis. 628. the purchaser is supposed to have been 2 Smith v. Hughes, 50 Wis. 620, supra, willing to take the property, as it was at The contrary doctrine as to highways has the time, subject to such burden. That been stated, supra, § 80 et seq. being so, the covenants in the deed must 3 So far as respects the point decided likewise be construed with reference to in this case, the covenant of warranty was the condition of the property at the time the same as the covenant against incum- of conveyance. The grantor, by his cove- brances. nant, warranted the premises as they were, 4 Janes v. Jenkins, 34 Md. 1. "The and by no means intended to warrant question," said the court, "depends upon against an existing easement, which was the apparent and ostensible condition of open and visible to the appellant, and over the property at the time of sale. And which the former had no power or control as the wall had been erected, and the whatever. To construe the covenant to lights therein were plainly to be seen, embrace such subject would most likely when the appellant purchased the prop- defeat the understanding and intention of erty overlooked by them, it is but rational the parties, certainly of the grantor." And to conclude that he contracted with refer- the case of Patterson v. Arthurs, 9 Watts, ence to that condition of the property, and (Pa.) 152, supra, § 81, was cited and that the price was regulated accordingly, approved. This decision has been criti- The parties, in the absence of anything to cised (11 Amer. Law Register, N. s., Jan., the contrary, are presumed to have con- 1872, p. 31), but it is only a logical tracted with reference to the then condi- extension of the doctrine of James v. tion and state of the property ; and if an Lichfield, L. R. 9 Eq. 51, supra, p. 95, easement to which it is subject be open n. 4, and must stand or fall with the and visible, and of a continuous character, authority of that decision. 107 § 85.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. the nature of the estate conveyed. 1 The question, moreover, whether the easement is or is not an incumbrance, is regarded by the cases on both sides as exclusively one of law, to be deter- mined as an abstract proposition by the court. And so in fact it must be, if the rights of the parties are absolutely fixed by the terms of the deed. But if the court be at liberty to seek for the intention of the parties dehors the deed by reference to physical or supposed notorious incidents of the land, the question would seem to extend beyond one of mere construction of a written instrument, and the fact that parol evidence is admis- sible to some extent to explain what was the subject of the con- tract does not lessen the power of the court to determine what is an incumbrance within the intention of the parties. And in the nature of things it would seem that such questions cannot always be" mere abstract ones. Such incumbrances as leases have already been referred to. 2 They may be benefits and they may be burdens. So with respect to buildings; in most cases they add to the value of the land, 3 and yet if bought for pur- poses of improvement their removal must cause expense. But no breach of a covenant against incumbrances was ever assigned by alleging that the land was in part covered by buildings, which passed with the land to the purchaser. Instead, therefore, of laying down an abstract rule, it would seem that in a certain class of cases the question of what is or is not an incumbrance should, as has been already said, be deter- mined by reference to the subject-matter of the contract, the relation of the parties to it and to each other, the notice on the part of the purchaser and to some extent the local usage and habit of the country ; and when these facts are found by the jury, it will be the province of the court to determine whether the easement did or did not constitute an incumbrance, subject always, in case of doubt, to the application of the maxim, Verba cartarum fortius accipiuntur contra proferentem.^ 1 As to this, see infra, Ch. V. son v. Cochran, 48 Pa. 112, " It is sug- 2 Supra, § 77. gested that this mode of ruling the case 8 And, as has been already seen, the is virtually impairing a written covenant removal by paramount right of a house or by parol evidence. Not at all. The other fixture has been held to be a breach subject matter of the conveyance, its of the covenants for seisin and of warranty ; condition and peculiarities, maybe ex- supra, § 58. plained by parol without any contradic- * Supra, § 76. As was said in Wil- tion of a deed. Do we contradict the 108 §86.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. § 86. It was observed in the chapter on the Covenant for Seisin, that in the pleadings on that covenant it was unnecessary for the plaintiff to specify the paramount title, or indeed refer to it in any way, either in the declaration or replication. A different rule, however, prevails with respect to the covenant against incumbrances. It is not sufficient that the plaintiff negative the words of the covenant generally ; he takes upon himself the re- sponsibility of proving the incumbrance, and must set it forth in his declaration. A contrary rule would oblige the defendant to prove a negative. 1 It is not, however, necessary or prudent, either in suing upon this covenant or upon that for quiet enjoy- ment or of warranty, that the incumbrance or paramount title should be set forth more than substantially, since if it were particularly alleged, and being so alleged were traversed, the plaintiff might not have the means of proving it exactly. 2 The damages should, however, be laid with reasonable cer- tainty ; 3 for as the general rule is that the mere existence of the conveyance of a tract of land when we permit it to be proved by parol that it is covered with timber, or is an improved farm, or contains a water-power, or has a private road upon it ? If a vendee means to exclude proof upon such subjects, he should take a more special covenant than a general warranty of title." 1 Dummer v. Birch, 1 Com. 146 ; Kent v. Can trail, 44 Ind. 452 ; Jerald v. El- ley, 51 Io. 321 ; Marston v. Hobbs, 2 Mass. 437 ; Bickford v. Page, id. 461 ; Shelton v. Pease, 10 Mo. 473 ; De Forest v. Leete, 16 Johns. (N. Y.) 122; Ken- nedy v. Newman, 1 Sandf. Sup. C. R. (N. Y.) 187; Vorhis v. Forsythe, 4 Biss. (C. C. U. S. ) 409 ; Mills v. Catlin, 22 Verm. 106. 2 2 Wins. Saunders, 181 a, note 10 ; Foster v. Pierson, 4 Term, 6 1 • Young v. Raincock, 7 Com. Bench, 310 ; Morgan v. Smith, 11 111. 200; Blake v. Everett, 1 Allen, (Mass.) 248 ; Duval v. Craig, 2 Wheat. (S. C. IT. S. ) 45. 3 Tufts v. Adams, 8 Pick. (Mass.) 549 ; De Forest v. Leete, 16 Johns. (N. Y.) 122 ; Funk v. Voneida, 11 Serg. & Rawle, (Pa.) 109 ; Pillsbury v. Mitchell, 5 Wis. 22. The following form is given in 2 Greenleaf on Evidence, § 244 : "The dec- laration by a grantee by deed of bargain and sale, against his grantor, for breach of the covenant of freedom from incumbrance by the existence of a paramount title, is in this form : ' in a plea of covenant ; for that the said defendant, on the day of by his deed (if by indenture it should be so set forth) duly executed, acknowledged, and recorded, and by the plaintiff now here produced in court, for a valuable consideration therein men- tioned, bargained, sold, and conveyed to the plaintiff (here describe the premises), to have and to hold the same with the appurtenances to the plaintiff, and his heirs and assigns forever ; and therein, among other things, did covenant with the plaintiff that the said premises were then free from all incumbrance whatsoever. Now the plaintiff in fact says that, at the time of making the said deed, the premises aforesaid were not free from all incum- brance ; but, on the contrary, the plaintiff avers that, at the time of making said deed, one E. F. had the paramount and lawful right and title to the said premises ; by reason whereof the plaintiff has been obliged to expend, and has expended, a great sum of money, to wit, the sum of , in extinguishing the said paramount 109 §86.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. incumbrance, without more, will entitle the plaintiff to but nom- inal damages, 1 the familiar rule applies that where damage does not necessarily arise from the act complained of the plaintiff must, to prevent surprise, state the particular damage sustained or he will not be permitted to give evidence of it on the trial. 2 and lawful right and title of the said E. F. to said premises.' " The above form is, however, very concise. Others more elaborate will be found in 2 Ohitty's Plead- ing, 548-559 ; 5 Wentworth's Pleading, 53, 63 ; and in Carter v. Denman, 3 Zab. (N. -J.) 273, is a very carefully drawn declaration, where the incumbrance was a right of dower which had been extin- guished by the plaintiff. The form will of course vary with the nature of the incumbrance and the manner in which the damages have been sustained. If the covenant be limited to the acts of the grantor, the declaration must, of course, show that the incumbrance was made or suffered by him, otherwise it will be bad on demurrer ; Mayo v. Babcock, 40 Me. 142 ; Harry v. Anderson, 13 C. P. (U. C.) 476; Silverthorne v. Lowe, 40 Q. B. id. 73. It has been held in Connecticut, that an amendment of a declaration, by adding a count setting forth a new and distinct incumbrance, is not objectionable as chan- ging the ground of action, within the stat- ute which authorizes amendments which do not change the form or ground of action. Spencer v. Howe, 26 Conn. 200. There are cases where the plaintiff has extinguished the incumbrance after suit brought, and been held entitled to recover the amount paid for that purpose. Kelly v. Low, 18 Me. 244 ; Foote v. Burnet, lb Ohio, 317 ; Brooks v. Moody, 20 Pick. (Mass.) 475 ; Moseley v. Hunter, 15 Mo. 322. In a case in the Queen's Bench the plaintiff declared on the breach of an agreement to assign a lease and alleged that he had been "put to great expense, amounting to a large sum of money," &c, in investigating the title. On the trial, it appeared that he had not paid the bill of costs until after suit brought, but it was, nevertheless, held that he was entitled to recover. "If," said Lord Denman, "a plaintiff chooses to allege in his declara- 110 tion that he had paid money, he must prove that he had paid it ; but if he merely says that he has been ' put to ex- pense,' the allegation is satisfied by proof that he has incurred a liability to pay." Eichardson v. Chasen, 10 Q. B. 756. In Boyd v. Bartlett, 36 Verm. 1, the plaintiff, in his original declaration, averred that the defendant covenanted that there were no incumbrances, and assigned as a breach that there was a mortgage on the property at the time of the conveyance by the defendant to one of the grantors of the plaintiff. To this the defendant demurred, and the court sustained the demurrer. Subsequently the plaintiff, with leave of the court, amended his declaration by adding a count based on the covenant of general warranty, and assigned the said mortgage as a breach ; and it was held that the amendment was properly allowed, as the cause of action in the two counts Avas the same. In this case the plaintiff relied on a mortgage as being a breach of the covenant of general warranty, and the defendant by demurring admitted that it was a valid incumbrance. So the only question was, whether a proper eviction had been shown by the pleadings. The case seems to be not very clearly reported. i See infra, Ch. IX. 2 1 Chitty's Pleading, 338 ; Pillsbury v. Mitchell, 5 Wis. 22. In Massachu- setts, and perhaps some other States, there are statutory forms of pleading. Thus in the Mass. Pub. Stat., 1882, p. 977, § 94 : — ' ' Forms of declarations by grantee against grantor in a common deed of war- ranty for breaches of covenant : " And the plaintiff says the defendant delivered to him a deed, a copy whereof is hereunto annexed : " And the defendant was not seised in fee of a part of the land described as follows (describing it), but the same was held adversely by one L. M. ; and the residue of said land was not free from §88.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. The damage may arise in various ways. The purchaser may be obliged to extinguish the incumbrance, or he may be evicted under it, or the land may be sold under a subsequent incumbrance, when if the amount of the former one be paid out of the pro- ceeds of sale it will by so much diminish the amount coming to the plaintiff. 1 § 87. As respects the burden of proof, this rests, in the first instance, upon the plaintiff. § 88. In case there are known incumbrances of any kind sub- ject to which the purchaser agrees to take the property, these should, for every reason, be specially and expressly excepted from the operation of the covenant. They should be excepted for the protection of the vendor, for if not so excepted the fact of their being known to the purchaser will be no bar to his recovery upon the covenant. 2 Thus in the old case of Levit v. Witherington, a grantor covenanted that a lease was good and unincumbered, and to the declaration alleging an incumbrance the defendant pleaded that the plaintiff had notice of it, which was held bad on demurrer. 3 This decision has been often recognized and followed, 4 and it must be consid- incumbrances, but was subject to a mort- gage to one S. T. to secure the payment of six hundred dollars : " And the defendant has not warranted and defended the premises against the rightful claims of all persons, but one W. S. had a right of dower therein, and has compelled the plaintiff to assign the same to her." i Haire v. Baker, 1 Seld. (S. Y.) 361. Thus, in Funk v. Voneida, 11 Serg. & Rawle, (Pa.) 109, when the fact of the existence of a mortgage on the premises of the purchaser got to be publicly known, his creditors, becoming anxious for their security, pressed him, and the property was sold at a sacrifice, and the court said, "If the plaintiff had laid the consequen- tial damages he offered to prove, the evi- dence should have been received ; but as they were not laid, and not confessed by the plea of covenants performed, it is evi- dent the evidence was properly overruled. If he had discharged the mortgage, this ought to have been stated as the actual gravamen. So if by a judicial sale he had sustained, as was alleged, the ultimate damage which he ever could have sus- tained, this gravamen ought to have been laid." 2 That is to say, if the alleged incum- brance be really an incumbrance, as to which, as has been seen, the question of no- tice may be very material. See supra, § 76. 8 Levit v. "Witherington, Lutwyche, 317. (This reference is to the French folio of 1704. In Nelson's translation (8vo, 1718) the case is omitted. ) 4 Funk v. Voneida, 11 Serg. & Rawle, (Pa.) 112 ; Hubbard v. Norton, 10 Conn. 431 ; Snyder v. Lane, 10 Ind. 424 ; Grice v. Scarborough, 2 Spears, (S. C.) 649. In the last two cases a plea of the plaintiff s notice of the incumbrance was held bad on demurrer. "It is no answer to the purchaser's complaint," said Duncan, J., in Funk v. Voneida, supra, "to say it was his duty to search the record, and to have protected himself by some special covenant against this specific incumbrance. It was no part of this case that he had actual notice, but if he had, it could 111 §88.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. ered as settled that mere notice of an incumbrance cannot affect the right of recovery upon the covenant. 1 It is evident that the only presumption to be drawn from the purchaser's notice is that he agreed to run the risk of the incumbrance, or, in other words, that the incumbrance was intended to be excepted from the operation of the covenant; but if this be really so, it is in the power of the vendor to insert this in the deed, and if he neglect to take this precaution, he cannot be allowed to repair his carelessness at the expense of settled principles. If indeed the agreement of the parties has been improperly or imperfectly set forth in the conveyance, the familiar jurisdiction of equity in the reformation of deeds on the grounds of fraud and mistake may be successfully resorted to ; 2 or if the omission has been occa- make no difference. The purchaser cove- nanted against all incumbrances. The rule as to the vendee is caveat emptor. So let the vendor take care of the covenants he enters into. Notice of the mortgage would make no difference, as was deter- mined in Levit v. Witherington." So in Hubbard v. Norton, supra, it was said, "How can the plaintiffs knowledge de- stroy the effect of the defendant's cove- nant ? Suppose the defendant had sold a farm which he and the purchaser both knew they did not own, could that knowl- edge destroy or affect the nature of the covenant for seisin ? If not, by what rule can such knowledge impair a covenant of warranty against incumbrances ? " or, as was lately said in Smith v. Lloyd, 29 Mich. 382, "It is as usual, and certainly as competent, to covenant against known as unknown incumbrances or defects of title, and with this covenant the purchaser was not called upon for the exercise of any diligence." 1 Dunn v. White, 1 Ala. 645 ; Worth- ington v. Curd, 22 Ark. 285 ; Hubbard v. Norton, 10 Conn. 422 ; Wadhams v. Innes, 4 Bradw. (111.) 642 ; Morgan v. Smith, 11 111. 200: Medlar v. Hiatt, 8 Ind. 173; Snyder v. Lane, 10 id. 424 ; Van Wag- ner v. Van Nostrand, 19 lo. 427 ; Barlow v. McKinley, 24 id. 70 ; Gerald v. Elley, 45 id. 322 ; Harlow v. Thomas, 15 Pick. (Mass.) 70; Ladd v. Noyes, 137 Mass. 151 ; Williamson v. Holt, 62 Mo. 405 ; Close v. Graham, 64 id. 249 ; Sargent v. 112 Gutterson, 13 N. H. 473 ; Good v. End, 1 Allen, (N. B.) 603; Van Winkle v. Earl, 26 N. J. Eq. 242 ; Suydam v. Jones, 10 Wend. (N. Y.) 185 ; Gragg v. Wag- ner, 7 N. Car. 316 ; Lloyd v. Quimby, 5 Ohio, 265 ; Grice v. Scarborough, 2 Spears, (S. C.) 654; Perkins v. Williams, 5 Cold. (Tenn.) 513; Taylor v. Gilman, 25 Verm. 413 ; and see also the cases cited infra. But as will be hereafter seen, although the purchaser's notice of an incumbrance or defect is no bar to his recovery at law on the covenant, it will afford a ground for refusing him relief in equity as to detaining the unpaid pui'chase money. Worthington v. Curd, siqwa. See infra, Ch. XIV. In Boberts v. Levy, 3 Abbott's Pract. B. N. s. (N. Y.) 316, a distinction was suggested between actual and constructive notice ; and while the court were clear that constructive notice would not defeat a recovery, it seems to have been thought that proof of actual notice might be re- ceived in mitigation of damages. But it is submitted that the evidence, if admissi- ble at all, must be to prove that the par- ticular incumbrance formed no part of the contract, and hence there could be no re- covery for a breach of it. 2 Van Wagner v. Van Nostrand, 19 lo. 427; Metcalfe. Putnam, 9 Allen, (Mass.) 99 ; Busby v. Littlefield, 11 Fost. (N. H.) 199 ; Haire v. Baker, 1 Seld. (N. Y. ) 360 ; Taylor v. Gilman, 25 Venn. 413 ; Butler § 88.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. sioned by fraud, he may have a remedy at law by an action on the case in the nature of a writ of deceit ; 1 but every court of law which enforces the rule that parol evidence is not admissible to control or contradict the effect of written instruments must, in an action on the covenant against incumbrances, exclude evidence to show that it was the agreement of the parties that the covenant was not to extend to a particular incumbrance not expressly ex- cepted from its operation. 2 v. Gale, 27 id. 744 ; Stanley v. Goodrich, 18 Wis. 505 ; and see notes to Woollam v. Hearne, 2 Leading Cases in Equity (4th ed.). 1 Sargent v. Gutterson, 13 N. H. 473 ; Funk v. Voneida, 11 Serg. & Rawle, (Pa.) 112. 2 Wadhams v. Innes, 4 Bradw. (111.) 642; Morehouse v. Heath, 99 hid. 509; Bever v. North (Ind.), 8 N. E. Rep. 576 ; Van Wagner v. Van Nostrand, 19 Io. 428 ; Johnson v. Walker, 60 id. 315 ; Donnell v. Thompson, 1 Fairf. (Me.) 177 ; Townsend v. Weld, 8 Mass. 146 : Harlow v. Thomas, 15 Pick. (Mass.) 70 ; Batchelder v. Sturgis, 3 Cush. (Mass.) 203 ; McLeod v. Skiles, 81 Mo. 595 ; Suydain v. Jones, 10 Wend. (NT. Y.) 185 ; Long v. Moler, 5 Ohio, 271 ; Collingwood v. Irwin, 3 Watts, ( Pa. ) 306 ; McKennan v. Doughman, 1 Pa. (old Pa., not Pa. St.) 417 ; Grice v. Scarborough, 2 Spears (S. C.) 649; Bigham v. Big- ham, 57 Tex. 238 ; Buckner v. Street, 5 McCrary, (C. C. U. S.) 59. In Col- lingwood v. Irwin, supra, the covenan- tor offered to show that at the time of the execution of the deed it was agreed that the assignment of a certain judg- ment should be the only security of the covenantee, and that the former was not to be held liable on his covenant. But tbe court said, " It is impossible to avoid seeing that to admit such proof would not only be admitting evidence to contradict, but to alter and change most materially, the character and effect of the deed. In- stead of being a deed with covenant of general warranty, as it purports on its face, it would, by the operation of the evidence proposed to be given, become a deed without any engagement whatever on the part of the grantor for the goodness of the title. It is not pretended that there was any mistake or fraud committed in introducing the covenant of general warranty into the deed ; the evidence, therefore, is not offered with a view to obtain relief from the one, nor the pur- pose of correcting the other. The evi- dence offered then being oral, falls directly within the general rule that it shall not be admitted to contradict, alter, or vary the written agreement between the parties to it. The court was therefore right in rejecting it." It is true that in Leland v. Stone, 10 Mass. 459, it was held that evidence was admissible, in mitigation of damages, to show that part of the land had been included by mistake in the deed ; that the purchaser had paid nothing for it ; and that the prior grantee had long been in notorious and exclusive posses- sion ; and this was thought to present "a case for the equitable consideration of the jury." Upon the authority of this case, the Supreme Court of Illinois went a little farther, and decided (as had also been held in Indiana, see infra) that parol evidence may, in bar of a recovery, be given to show that the purchaser agreed to take the property subject to certain incumbrances which were not excepted from the covenants or in any way men- tioned in the deed. Sidden v. Riley, 22 111. 111. But more recently in Massa- chusetts the same point was decided the other way, in Harlow v. Thomas, 15 Pick. 66 ; and although Leland v. Stone was not then overruled, yet in the subse- quent case of Spmr v. Andrew, 6 Allen, 422, the court, referring to Leland v. Stone, said of it: "So far as that case may be supposed to infringe upon the rule excluding oral evidence, when offered to control or contradict the deed itself as the proper evidence of the contract between i 113 •] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. It has moreover been said, that the fact of the purchaser hav- ing notice of an incumbrance is the very reason for his taking a the parties, it is not to be extended. Un- der the equity powers conferred upon this court, full opportunity is afforded for par- ties aggrieved by the fact that their con- tracts, as drawn and executed, were the result of accident or mistake, and not such as to give effect to the real coutract in- tended to be made, to apply to this court to have the same reformed and corrected. In that way, proper relief may be granted." And in Illinois, in the recent case of Wad- hams v. Innes, 4 Bradw. 642, the coui't, though expressly distinguishing the facts, virtually abandoned the doctrine of Leland v. Stone. In the preceding cases, parol evidence was held inadmissible on the part of the covenantor to show that an incumbrance which, on the face of the deed, was in- cluded within the covenant, was in fact intended to be excepted from it, and the converse of the proposition is of course equally true ; and an incumbrance which, on the face of the deed, is excepted from the covenant, cannot be shown by parol to have been intended to be included within it ; and it has consequently been held that an action of assumpsit cannot be sustained upon a parol promise alleged to have been made at the execution of a deed containing covenants limited to the acts of the grantor, whereby the latter agreed to discharge an incumbrance not created by himself, and therefore not within the covenant ; Howe v. Walker, 4 Gray, (Mass.) 318; Duncan v. Blair, 5 Denio, (N. Y. ) 196 ; or upon an alleged parol warranty of quantity of land conveyed, Cook v. Coombs, 39 N. H. 597 ; or of timber growing on it, Powell v. Edmunds, 12 East, 6. So in Patterson v. Yancy, 81 Mo. 379, it was obviously held that, in an action of debt to recover money paid for taxes claimed to be an incumbrance, parol evidence was inadmissible to show what were the covenants in the deed. In Indiana, the rule excluding parol evidence is not strictly enforced, and the doctrine that an existing incumbrance may be thus proved to have been within or without the covenant is established in a 114 long line of decisions, beginning with Allen v. Lee, 1 Ind. 58, where evidence was held admissible to show that at the time of the execution of the deed the vendor said that the purchaser was to take the land with the incumbrance of a lease for life, and that he thought it should be so mentioned in the deed, but that the purchaser replied that he knew that such was the contract, but it was unnecessary to mention it in the deed, as he was about to undertake to keep the tenant for life, and wished to have the whole title in himself. Smith, J., in delivering the opinion of the court, said, somewhat more broadly than was necessary, "A general covenant of warranty does not, at least conclusively, extend to such incumbrances as were known to the purchaser at the time of the contract, and which he agreed to pay or discharge himself, in addition to or as part of the consideration money from him to the vendor ; and where the ques- tion is, as in this case, what was the true consideration paid for the land, we think such facts may be given in evidence with- out in any manner contradicting the terms of the written warranty." Though this case was not a suit upon the covenant, but the defence of a lease for life was set up in opposition to the payment of a note given for the purchase money, the broad doctrine thus announced by the court has been approved and consistently followed in subsequent cases ; Medler v. Hiatt, 8 id. 171 ; Rockhill v. Spraggs, 9 id. 30 ; Gibson v. Eller, 13 id. 124 ; Wainscott v. Silvers, id. 497 ; Lindley v. Dakin, id. 388 ; Page v. Lashley, 15 id. 152 ; Lamb v. Donovan, 19 id. 40 ; McMahan v. Stewart, 23 id. 590 ; Pitman v. Conner, 27 id. 337 ; Fitzer v. Fitzer, 29 id. 468 ; Heavilor v. Heavilor, id. 509 ; Robinius v. Lister, 30 id. 142 ; Pea v. Pea, 35 id. 387 ; Carver v. Louthain, 38 id. 530 ; and is now regarded as the settled law of that State. Allen v. Lee was cited with ap- proval in Sidden v. Riley, 22 111. Ill, supra; and the same doctrine was applied in the recent case of Laudman v. Ingram, 49 Mo. 212. §88.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. covenant within whose scope it is included, 1 and that in some cases the vendor may be expected to discharge it out of the purchase money. 2 For all these reasons, therefore, whenever the contract is that the purchaser is to take the land cum onere, the incumbrance should be expressly excepted in the deed from the operation of the covenant, in which case, of course, the covenantor will not be liable. 3 The same result would obviously follow if a sealed 1 Harlow v. Thomas, 15 Pick. (Mass.) 70 ; Burbank v. Pillsbury, 48 N. H. 483 ; Jacques v. Esler, 3 Green's Ch. (N. J.) 463 ; Long v. Moler, 5 Ohio, 274 ; Keith v. Day, 15 Verm. 670; Eefeld v. Wood- folk, 22 How. (S. C. U. S.) 326. "It is true," said the court in Long v. Moler, supra, " there are cases which coun- tenance the doctrine that known incum- brances are presumed to be excepted from the operation of the covenant. But a majority of the court are of opinion that the weight of reason and authority alike are clearly the other way [citing the text]. Nothing is more common than for parties to make and accept covenants of this kind with a full knowledge of existing incum- brances, the covenantor relying on his ability to discharge them, and the cove- nantee in the security which the covenant affords, and the fact of a purchaser hav- ing notice of an incumbrance is the very reason for his taking a covenant within whose scope it is included." And in the very recent case of Butcher v. Peterson, 26 W. Va. 447, the same view was taken. 2 Dunn v. White, 1 Ala. 645 ; Skinner v. Stamer, 24 Pa. 123 ; Grice v. Scarbor- ough, 2 Spears, (S. C.) 654. 8 Aufricht v. Northrup, 20 Io. 62 ; Kinnear v. Lowell, 34 Me. 300 ; Freeman v. Foster, 55 id. 508 ; Foster v. Woods, 16 Mass. 116 ; Sanborn v. Woodman, 5 Cush. (Mass. ) 36 ; Shears v. Dusenbury, 13 Gray, (Mass.) 292 ; Kirk v. Burkholtz, 3 Tenn. Ch. 421 ; Potter v. Taylor, 6 Verm. 676 ; Van Rensselaer v. Kearney, 11 How. (S. C. U. S.) 321, and see the cases cited infra. Mr. Preston, in his practical instructions as to the preparation of abstracts of title, after suggesting that in general they need only set forth that there are "the usual covenants for title," adds: "Sometimes the covenants are expressed more fully by showing the extent of the covenant, and consecpiently introducing the clause 'not- withstanding,' etc. That part of the cove- nant which deserves the most attention is the exception, if any, against incumbrances ; such exceptions, as often as there are any, and the incumbrances there noticed, as far as they are material to the title, should be stated in the words of the covenant, and at least so fully as to show the nature and extent of those incumbrances." 1 Pres- ton on Abstracts of Title, 153. In Fos- ter v. Woods, 16 Mass. 116, where the conveyance was made, excepting from the covenants "all mortgages made by defend- ant's intestate in his lifetime, and which are duly recorded," evidence was held ad- missible on the part of the defendant to show that a recorded deed from the intes- tate, absolute on its face, was in fact ac- companied by an unrecorded defeasance so that the two constituted a mortgage, which therefore came within the exception in the covenant. When, however, an incumbrance has been expressly excepted from the operation of the covenant, it must not be supposed that this exception has, in general, any other or greater effect than to bar a recov- ery against the grantor. It does not cre- ate an express liability on the part of the purchaser to discharge the incumbrance. Johnson v. Monell, 13 Io. 300 ; Aufricht v. Northrup, 20 id. 62 ; Drury v. Tremont Improvement Co., 13 Allen, (Mass.) 171 ; Strohauer v. Voltz, 42 Mich. 444 ; Bel- mont v. Coman, 22 N. Y. 438. Nor of course can the exception from the cove- nant of an incumbrance which is invalid in itself give it validity as against the grantor. Melley v. Casey, 99 Mass. 241. Where, however, a lease is excepted from 115 § 89.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. instrument to that effect were executed contemporaneously, 1 and duly recorded in the line of search. 2 § 89. To avoid all question, it is better for the purchaser, also, that the incumbrance should be specially excepted, for it seems sometimes to have been thought, though never so directly decided, 3 that, when the incumbrance is known to exist, the purchaser will be deemed to have taken the estate subject to it. Sugden has said, " It sometimes happens that a purchaser consents to take a defective title, relying for his security upon the vendor's cove- nant. Mr. Butler remarks that where this is the case the agree- ment of the parties should be particularly mentioned, as it has been argued that as the defect in question is known, it must be understood to have been the agreement of the purchaser to take the title subject to it, and that the covenants for the title should not extend to warrant it against this particular defect." 4 But the covenant, the only effect of such ex- ception is to protect the grantor ; but where the rent passes to the purchaser with the reversion, the exception obvious- ly cannot be relied on by the grantor as a reservation of the rent to himself. Gale v. Edwards, 52 Me. 363. 1 Brown v. Staples, 28 Me. 497 ; Reid v. Sycks, 27 Ohio, 285. In Copeland v. Copeland, 30 Me. 446, the agreement, though reduced to writing, seems to have been unsealed. In Watts v. Wellman, 2 N. H. 458, the report does not state whether the agreement by which the plain- tiff was to discharge the incumbrance was or was not written, but as he demurred to the plea which set up such an agree- ment in bar, he of course admitted its existence. 2 The cases last cited were between grantor and grantee, or, as in the case in Maine, where the latter had notice and the question as to the registry acts did not arise. 3 Except in that class of cases referred to supra, § 76, where the alleged incum- brance is deemed not to be such, but merely an incident of the estate conveyed. 4 Sugd. on Vend. (14th ed. ) 573. So in Hughes's Practice of Sales of Real Prop- erty, it is said, "It is sufficient to cove- nant against incumbrances generally, with- out any particular specification, unless the 116 estate is subject to a known incumbrance ; then, it seems, if the purchaser intend to rely upon a vendor's covenants, they should be made expressly to extend to such in- cumbrance, otherwise it may be presumed that, he took the estate subject to such in- cumbrance, and this should be added at the end of the covenant, as follows : ' and particularly of, from, and against a certain quit-rent,' etc." Vol. ii. (2d ed. 1850), p. 205. Savage v. Whitehead is the case cited by Sugden as the authority for the obser- vation in the text. That case (reported 3 Chan. Rep. 14) is as follows : "Sir Thomas Savage, the plaintiff's father, sold land to the defendant's ancestors, and covenanted that they were free of incumbrances, and gave a collateral security on other lands also ; and the purchaser having entered on the security for damnifications, the bill was to have the collateral security recon- veyed ; whereto the defendants having set forth divers incumbrances on the pur- chased land and, inter alia, a lease of twenty-one } T ears of parcel thereof, the plain tiff replied generally; and at the hear- ing, a reconveyance was decreed on satis- faction of the damnification ; and upon the report the plaintiff excepted against the lease, that it was no incumbrance because they had proved the purchaser had notice of it at the time of the purchase, whereto §90.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. the remarks and authorities already submitted will show that no such presumption can properly arise. § 90. With respect to incumbrances known to the vendor, there are at least three States in which his obligation to make them known to the purchaser is now enforced by statute, and in two of them the omission or neglect so to do is a penal offence. 1 the defendants insisted that the notice was not issue in the case ; yet Lord Keeper Bridgman would not conclude the infant by a slip of her counsel, in not putting it in issue upon the replication, but ordered a trial whether the purchaser agreed to take the lands, charged with the lease." But Bridgman's reputation as a common law judge was not sustained by his decis- ions in chancery ; 3 Campbell's Lives of the Chancellors, 231 ; and this case is ap- parently unsupported by other authority ; unless indeed it was with reference to it that Sir W. Grant, in Ogilvie v. Foljambe, 3 Mer. 531, said, "Even in cases where there has been a covenant against incum- brances, it has been sometimes doubted whether that covenant would extend to protect a purchaser against incumbrances of which he had express notice." 1 Thus in Massachusetts, it is pro- vided, Pub. Stat, of Mass., 1882, p. 746, § 17 : "In all conveyances of real estate by deed or mortgage upon which any in- cumbrance exists, the grantor, whether he executes the same in his own right, or as executor, administrator, assignee, trustee, or otherwise by order of law, shall, before the consideration is paid, by exception in the deed or otherwise, make known to the grantee the existence and nature of such prior incumbrance so far as he lias knowl- edge thereof." Id. p. 746, § 18 : "Who- ever conveys real estate by deed or mort- gage containing a covenant that it is free from all incumbrances when an incum- brance appears of record to exist thereon, whether known or unknown to him, shall be liable in an action of contract to the grantee, his heirs, executor, administra- tor, successors or assigns, for all damages sustained in removing the same." Id., p. 1147, § 67: "Whoever conveys real estate, knowing that an incumbrance ex- ists thereon, without, before the consid- eration is paid, informing the grantee of the existence and nature of such incum- brance, so far as he has knowledge thereof, shall be punished by imprisonment in the jail not exceeding one year, or by fine not exceeding one thousand dollars." As to this 18th section, it is said in Crocker's Notes on Public Statutes of Massachusetts, 229, " Qusere, as to the effect of this sec- tion to change the rule of the common law, that a covenant against incumbrances does not run with the land, and that an action thereon cannot be brought by an heir or assignee of the covenantee [citing cases as to which see infra, Ch. X.]. The Commis- sioners on the Revision of 1881 dropped this section as being 'unintelligible and superfluous,' but the committee of the leg- islature restored it, . . . [it being] claimed that the section was intended to apply to incumbrances appearing on the record, but not existing in fact ; and this view seems to have been adopted by the committee." As to both of these suggestions see, infra, the case in Minnesota. So in Minnesota it is provided (Gen. Stat, of Minn., 1881, p. 539, § 34) that " In all conveyances of real estate by deed or mortgage, upon which any incumbrance exists, the grantor, whether he executes the same in his own right, or as executor, administrator, assignee, trustee, or other- wise, by order of law, shall, before the consideration is paid, by exception in the deed or otherwise, make known to the grantee the existence and nature of such prior incumbrance, so far as he has knowl- edge thereof." Id. p. 539, § 35: "Who- ever conveys real estate by deed or mort- gage containing a covenant that it is free from all incumbrances, when an incum- brance appears of record to exist there- on, whether known or unknown to him, shall be liable, in an action of contract, to the grantee, his heirs, executor, adminis- 117 90.] THE COVENANT AGAINST INCUMBRANCES. [CHAP. V. In subsequent chapters will be considered the measure of dam- ages for a breach of this covenant, 1 and the doctrine as to its running with the land. 2 trator, successors, or assigns, for all dam- ages sustained in removing the same." In the interpretation of this statute, it was held in Hawthorne v. City Bank, 35 Minn. 382, upon the authority of the in- terpretation of the Massachusetts act, that it had reference solely to incumbrances appearing of record to exist but not existing in fact, as in the case of a recorded mort- gage which had been fully paid but not discharged of record, the object of the stat- ute being to give a right of action against the grantor "for all damages in removing the same " as a cloud upon the title. In this case it was also argued by counsel on one side that the statute was intended to change the rule which limited the measure of damages for breach of the covenant by the consideration money, and on the other (obviously on the strength of the query in Crocker) that its object was to declare that an action on this covenant might be main- tained by the assignee of the grantee, neither of which contentions was sustained by the court. In New Hampshire, it is provided, "If any person shall, in his own right or in any other capacity, make any deed or conveyance of any real estate, knowing that any incumbrance exists thereon, with- out informing the grantee, by exception in the deed or otherwise, before any part of the consideration is paid, of the exist- ence, nature, and amount thereof, so far as he knows the same, he shall be impris- oned not exceeding one year, or fined not exceeding one thousand dollars." Gen. Laws of New Hampshire, 1878, pp. 620, 621, § 6. i Infra, Ch. IX. 2 Infra, Ch. X. 118 § 92.] THE COVENANT FOR QUIET ENJOYMENT. [CHAP. VI. CHAPTER VI. THE COVENANT FOR QUIET ENJOYMENT. 1 § 91. The covenants for seisin and of good right to convey are sometimes spoken of as covenants for " the title," while that for quiet enjoyment has been defined to be " an assurance against disturbance consequent upon a defective title." 2 While in Eng- land it is sometimes called " the sweeping covenant," its place has here been largely supplied by the covenant of warranty, which is considered the principal or sweeping covenant in Ameri- can conveyances. It is, however, on both sides of the Atlantic, the only covenant usually inserted in a lease ; and in Pennsyl- vania at least and perhaps elsewhere, in ground-rent deeds. 3 § 92. By reference to a preceding chapter, 4 it will be seen that where it is intended that the covenant for quiet enjoyment should be limited to the acts of the vendor or lessor, it is usual to insert, after the words " that the premises shall be quietly enjoyed without interruption of the grantor or lessor or his heirs or any person or persons whomsoever," these words : " lawfully claiming or to claim by from or under him them or any of 1 For the form of this covenant, see man of course worked a breach of the supra, Ch. II. pp. 24, 26, 29. " The cove- covenant. nant for quiet enjoyment," said Mellish, Perhaps a fuller definition was given L. J., in Leech v. Schweder, L. R. 9 Ch. by Sharswood, J., in Moore v. Weber, 71 App. 474, "in its plain and ordinary Pa. 429: "The covenant of quiet enjoy- terms, does not increase or enlarge the ment, whether express or implied, only rights which were granted in the previous means that the tenant shall not be evicted part of the conveyance." or disturbed by good title in the possession 2 Howell v. Richards, 11 East, 641. of the demised premises or part thereof." An illustration of this is found in the This of course referred to the relation of cases of Wilder v. Ireland, 8 Jones L. landlord and tenant. (N. C. ) 88, and Parker v. Richardson, id. 3 That is to say, deeds which convey 452, in the former of which it was held the fee, and reserve as the entire consider- that where a tenant for life conveyed in ation a perpetual annual rent, redeemable fee, covenanting for quiet enjoyment, there or extinguishable, however, at any time was no breach so long as his life estate en- by the payment of a certain principal sum dured, while in the latter the cesser of the by the purchaser, life estate and eviction by the remainder- * Ch. II. pp. 24, 26, 29. 119 § 92.] THE COVENANT FOR QUIET ENJOYMENT. [CHAP. VI. them or by or with his or their acts means consent default privity or procurement." These words have been made the subject of several decisions, principally in the English courts, to which it is here proper to refer. Where a lessor covenanted against any interruption of or by himself, " or any other person or persons lawfully claiming or to claim by from or under him them or any of them," and the premises were distrained upon for arrears of land-tax, due by him before making the lease, it was held that " this distress was certainly not a proceeding within the terms of the cove- nant. Let, suit, disturbance, or interruption by the defendant or others claiming by, from, or under him, are different things from the injury here complained of, those words implying a claim by title from the lessor. Here the claim was against him." 1 Where, however, 2 a fine was levied of a wife's estate with a joint power to the husband and wife to declare the uses, which they did by reserving a power of leasing and appointing a remainder, and the husband then made a lease not warranted by the power, covenanting against interruptions by him or any one claiming by, from, or under him, and the lessee being after- ward evicted by the remainderman by reason of the defective execution of the lease, 3 Lord Mansfield said that as the husband was a necessary party to the declaration by which the remainder was limited, the remainderman " certainly claimed under him, within the meaning of this covenant. Undoubtedly the husband had covenanted against his own acts, and the new limitations were created by one of his acts." 1 Stanley v. Hayes, 3 Q. B. 105. In contended that the declaration of appoint- Ireland v. Bircham, 2 Scott, 207, the evic- ment and the fine were to be considered as tion was by the original grantor of a lease one instrument ; that the husband only for non-payment of rent by the lessee, joined in the fine for conformity ; and the who had assigned the term to the plaintiff, fine being the act of the wife (since per- covenanting for quiet enjoyment. The sons taking under a power claim under the question whether this was a disturbance one who creates, and not under the one "by, from, or under them," although ar- who executes it), the remainderman took gued by counsel, was not decided, as the his estate from the wife and not from the case went off upon another ground. See husband ; and therefore, that the cove- infra, Ch. XII. nant, which was limited to the acts of the 2 Hurd v. Fletcher, 1 Dougl. 43. husband and those claiming under him, 8 On behalf of the defendant, it was did not extend to the case. 120 § 92.] THE COVENANT FOR QUIET ENJOYMENT. [CHAP. VI. So where one upon his marriage settled an estate upon him- self for life with remainder to his first and other sons in tail, with a power to the tenant for life to grant leases for years determinable on three lives, and afterward granted a lease of part of the estate for the lives of three persons, and covenanted that the lessee should quietly enjoy during the said term without the interruption of the lessor, his heirs or assigns, or any other person claiming any estate, right, or interest by, from, or under him or any of his ancestors, and the lease not being in con- formity to the power, the eldest son of the lessor, on the death of the latter, brought ejectment and evicted the lessee, whose heir brought covenant against the son as his father's heir, on behalf of the defendant it was urged that he could not be said to claim under his father, but in his own right as tenant in tail under the marriage settlement ; but the court was clearly of opinion l that the defendant was a person claiming under the lessor, within the meaning of the covenant for quiet enjoyment. 2 So in a later case, 3 lands were on a man's marriage settled, in execution of a power reserved to his father, in trust to convey to his father for life, remainder to himself for life, remainder to his first and other sons in tail, with power of leasing for twenty-one years. The settlor subsequently demised part of the premises for three lives, and covenanted for quiet enjoyment during that time, " without any let, suit, denial, interruption, or disturbance of or by him, his heirs or assigns, or any other per- son or persons claiming by, from, or under him or them." On the death of the lessor, his eldest son brought ejectment against and evicted the tenant, who thereupon claimed damages from the lessor's estate ; but the master to whom the matter was referred found that the estate was not subject to any liability by reason of the covenants. On exception to his report it was urged on behalf of the estate that the eldest son did not claim under the lessor, but under the creator of the power, viz. his father. 4 But 1 Upon the authority of Hard v. ant, a term continuing only for the life of Fletcher, supra. the lessor. 2 Evans v. Vaughan, 4 Barn. & Cress. 3 Calvert v. Sebright, 15 Beav. 156. 261 ; s. c. 6 Dowl. & Ryl. 349. It was 4 There was also another ground of also held that by the words "during the defence. The lessor had covenanted "so said term " was understood the term far as in his power lay, or he lawfully which the lessor purported to grant by his might or could," and it was urged that deed, and not, as contended by the defend- the covenant was then qualified by this 121 § 92.] THE COVENANT FOR QUIET ENJOYMENT. [CHAP. VI. Romilly, M. E,., asked, Was it not the intention that the estate should be continued to the lessee during the whole term for which it was granted, and did not the covenant affirm that the grantor neither had done nor would do anything to prejudice the title of the lessee to that term ? If he held that the covenant only affected such estate as the lessor had, or was confined to the persons claiming under him any interest he might then have in the land, he would be giving a qualification to an unrestricted covenant. In many cases, such a covenant was a great security for the title, and he was of opinion that those words ought to be construed in their largest possible terms ; and that when a person having a power to appoint executes that power, the ap- pointee does in fact obtain the estate " by, from, or under " the appointor, and consequently that any eviction by the appointee comes within the terms of a covenant for quiet enjoyment as against all persons claiming " by, from, or under " the grantor. So where the defendant assigned a term of a thousand years to trustees in trust to raise by way of mortgage a sum of money for the payment of his debts, and the trustees accordingly assigned the term on mortgage, and the defendant subsequently granted a lease of part of the lands, covenanting with the lessee for quiet enjoyment during the term, without the let, suit, trouble, denial, eviction, molestation, or disturbance of the lessor or any person claiming by, from, or under him, the lessee was afterward com- pelled to give up possession to the mortgagee, and the court had no hesitation in deciding that there was a disturbance by one claiming through and under the defendant, within the meaning of the covenant for quiet enjoyment. 1 So a recovery of dower by the wife of the covenantor is within the covenant for quiet enjoyment against all claiming from or under him. 2 clause. See the case noticed on this point woman who demanded dower had been and classified with others, infra, Ch. XII. the mother of the lessor, the action would 1 Carpenter v. Parker, 3 C. B. (n. s. ) not then have lain against the heir be- 206. The court seemed to entertain some cause she did not claim by, from, or doubt whether the facts in this case under the lessor." Tooker v. Groten- amounted to an eviction (see infra, Ch. kemper, 1 Cincinnati, Sup. C. K. (Oh.) VIII.), but none whatever that they con- 88, was too plain for argument. The stituted a molestation and disturbance owner of land subject to a mortgage created within the words of the covenant. by a prior owner leased it with a covenant 2 Anonymous, Godb. 333; Shep. Touch, for quiet enjoyment without molestation 171. " Otherwise," it was said, " if the from himself or any one claiming under 122 § 93.] THE COVENANT FOR QUIET ENJOYMENT. [CHAP. VI. So in a very recent case the defendant, the owner of two farms, one on higher ground than the other, rented the former with the right to use an underground drain passing through the other, to one tenant, and then rented the other to the plaintiff, reserving a right to enter and repair the drain, and covenanting for quiet enjoyment against his own acts and the acts of all persons law- fully claiming through or under him. Subsequently, by reason of the defective construction of the drain, the proper use of it by the tenant of the upper farm flooded the plaintiff's field and damaged his crops, and the court held that this was a substantial interruption of the plaintiff's enjoyment of the land by a person lawfully claiming through the defendant and therefore a breach of the covenant. 1 § 93. It has also been held that the words " acts and means " import something actually done by the person against whose acts the covenant is made. Thus where one holding under a lease which reserved a power of re-entry in case of the exercise of any trade or calling on the demised premises made an under-lease in which he covenanted against interruption by him, or " by or through his acts and means," and the under-lessee let the premises again to one who commenced the business of an auctioneer, and the original landlord re-entered, it was held, in an action by the second lessee against his lessor upon the covenant contained in his lease, that the eviction was not within the words of the cove- nant. The word " acts " meant something done by the person against whose acts the covenant was made, and the word " means " had a similar meaning, something proceeding from the person cov- enanting. The eviction was not produced by anything proceeding from the covenantor, but from the person in possession of the premises, and judgment was given for the defendant. 2 him, and it was obviously held that the 2 Spencer v. Marriott, 1 Barn. & Cress, eviction of the lessee by foreclosure of the 457 ; s. c. 2 Dowl. & Ryl. 665. The mortgage was no breach of the covenant. authority of this case has also been re- 1 Sanderson v. Mayor of Berwick, L. R. cently affirmed in Dennett v. Atherton, 13 Q. B. D. 547. The point of this de- L. R. 7 Q. B. 316, infra, Ch. VIII., where cision is sharply brought out by the fact the facts were very similar, and was lately that the plaintiff also sought to recover in followed in Bellamy v. Barnes, 44 U. Can. the same suit damages for injuries to his Q. B. 315. Of course, the colonial decis- crops resulting from the improper use of a ions follow those of the mother country properly constructed drain on the same unless local statutes intervene, lands and by the same tenant of the upper The somewhat recent case in the farm, but the court held that it was no Queen's Bench of Thackeray v. Wood, 5 breach of the covenant. Best & Sm. 325, affirmed in the Exchequer 123 §94.] THE COVENANT FOR QUIET ENJOYMENT. [CHAP. VI. So in a case in Massachusetts, where the defendant covenanted " against the lawful claims and demands of all persons claiming by, through, or under him, and against no other claims and de- mands," it was held that a prior claim for taxes, assessed against the property before it came to the defendant, did not come within the covenant. 1 § 94. The word " default " was once held to extend to an ar- rear of quit-rent which the purchaser was obliged to discharge, although not accruing while the covenantor was oivner of the prem- ises. It was said that if it happened to be in arrear in his life- time, it was a consequence of law that it was of his default in respect of the party with whom he covenanted. 2 But this decision seems open to much observation. 3 Chamber, 6 id. 766, also turned upon what had been an " act done " by the cove- nantor, which it was held was no breach of the covenant of right to convey (see the case supra, p. 83, n. 3), but would, it was thought, have been a breach of a covenant for quiet enjoyment had the deed contained such a covenant. 1 West v. Spaulding, 11 Met. (Mass.) 556 ; Rundell v. Lakey, 40 N. Y. 513 ; Ingalls v. Cooke, 21 Io. 560 ; and supra, §77. 2 Howes v. Brushfield, 3 East, 491, per Lord Ellenborough. 3 Sugden has said of it : " It was ar- gued by the counsel for the vendor, and apparently on very solid grounds, that to make the vendor liable to the arrear of his rent, under his covenant, would be tantamount to a decision that the cove- nant, although limited, should extend to the acts of all the world. The clear inten- tion of the parties was that the vendor should covenant against his own acts only, and yet it should seem that the argument of the court would apply as well to a mort- gage or any other incumbrance created by a prior owner, as to an arrear of quit-rent in payment of which a former occupier made default. The reader should be cautious how he applies this decision to cases arising in practice, as it may lead him to draw conclusions not authorized by prior decisions." Sugd. on Vend. (14th ed. ) 602. It certainly never was imagined in Pennsylvania, where ground-rents are 124 and quit-rents were formerly common, that a vendor was ever held liable to his pur- chaser under a limited covenant against incumbrances by reason of arrears of ground-rent accruing for a longer period than he himself possessed the premises ; though if the covenant were a general one it would of course be otherwise. Hamond v. Hill, 1 Comyn, 180. The same author remarks that care must be taken to distinguish this case from Cavan v. Pulteney, 2 Ves. Jr. 544, where the covenantees were evicted by reason of their covenantor not having suf- fered a common recovery, which would have given him a fee simple, of which in the deed he recited that he was seised ; and the consequent eviction by the re- mainderman was therefore by the covenan- tor's "default," since "the act required to make good the title was within the compass of his own estate, and within his own power : therefore the omission to do it was a default by him within the limit of a covenant strictly restrained to his own acts, and he assumed as far as his own acts or defaults extended to be. seised in fee. In Howes v. Brushfield the seller assumed in like manner to be seised free from incumbrances, but he did not assume to be entitled free from incum- brances by whomsoever created ; the two cases would have been similar, had it not been in the seller's own power to have suffered the common recovery in Cavan v. Pulteney. If a third party's concurrence § 94.] THE COVENANT FOR QUIET ENJOYMENT. [CHAP. VI. In a subsequent case, 1 one who had received from a tenant for life and his son, remainderman in tail, a lease for ninety-nine years, underlet the premises, with a covenant for quiet enjoyment against himself and his heirs and all persons lawfully claiming under them, " or by or with his or their acts, means, consent, neglect, default, privity, or procurement." The tenant in tail and his son both died, and the next remainderman evicted the under- lessee, who thereupon brought covenant. The court said that the eviction, being by a paramount title, could not be brought within the covenant unless by means of the words " neglect or default " of the covenantor, who certainly might have required his lessors, the tenant in tail and his son, to have suffered a common re- covery ; but that before a breach could be assigned on these words it must be averred that the covenantor had the power or means of procuring such common recovery, and that he neglected or omitted to do so. " With such an allegation made and proved, an action of covenant might possibly be maintainable, but not without it. It may, indeed, show a want of discretion in the cov- enantor that he took leases under such a defeasible title, but a neglect and a default seem to imply something more than the mere want of discretion with respect to his own interests, some- thing like the breach of a duty or legal obligation existing at the time ; these words, in their proper sense implying the not doing some act which he ought to have done, and which he had the power to do, and the not preventing or avoiding some danger to the title, which he might have prevented or avoided." 2 So where had been necessary, which the seller must have contracted with, or should thereafter have purchased, and that had been deemed contract to supply, provided that such a obligatory upon him within his covenant, quantity should be left as would be sum- then the case would have been the same cient to supply the mill for twelve hours a as Howes v. Brushfield." Sugd. on Vend, day, with a covenant that the lessee should (14th ed. ) 603. enjoy without interruption of the lessors, 1 Woodhouse v. Jenkins, 9 Bing. 431 ; or any persons claiming by their acts, s. C. 2 Moore & Scott, 599. means, consent, default, privity, or pro- 2 The case of Blatchford v. Mayor of curement. The breach assigned was that Plymouth, 3 Bing. N. C. 691, seems prin- the defendants, at divers times between cipally to have been decided upon the the execution of the lease and the bringing insufficiency of the breach assigned, though of suit, caused and procured to be drawn from expressions used by the court it may off large quantities of water, etc. On the be doubted whether they thought the cove- trial it appeared that nothing had been nant was broken at all. The defendants done since the making of the lease, but demised a mill stream, except so much that there were outlets to the stream, water as should be sufficient for the supply granted to the parties many years before of persons whom the lessors should already by acts of Parliament. It was held that 125 § 94.] THE COVENANT FOR QUIET ENJOYMENT. [CHAP. VI. the owner of a house, rented in apartments to separate tenants, each floor being supplied with water through a branch of the main pipe descending from a tank on the roof, was sued on a covenant for quiet enjoyment by a tenant whose apartment had been flooded and goods damaged by the bursting of a branch pipe, and the jury found there had been no negligence on the part of the defendant in constructing and maintaining the pipe, the court held that the covenant was prospective in its operation and there had been no breach of it. 1 In a very recent case in England the plaintiff — who had taken an assignment of a lease for a term expiring March, 1887, containing a covenant for quiet enjoyment " against any let, suit, trouble, denial, interruption, or molestation by or from him the said T. H., or from or by the said superior landlord or any person claiming," etc. — was notified by the supe- rior landlord to quit the premises in March, 1886, when the head lease would expire. Under agreement, a new lease from the supe- rior landlord was made to the plaintiff, commencing from March, 1886, and the latter in 1885 sued her lessor on the covenant, claim- ing as damages a year's interest on the sums which she had to pay under the agreement for repairs, and as premium for the new lease. 2 Stephen, J., was of opinion that although the plaintiff had upon this evidence the breach was badly either the defendant or of any one for assigned. The evidence might have suited whom he is responsible. But the only act a breach that persons having rights under done by the defendant was done before the prior grants had diminished the quantity lease was granted to the plaintiffs. The of water. If the plaintiff meant that he jury have found in the defendant's favor was injured by contracts entered into by that the act was not done negligently, the defendants previously to the demise, After the lease had been granted, there the breach should have been framed ac- was no breach of any duty, there was no cordingly ; and Tindal, C. J., remarked, act of either commission or omission, and that the evidence did not fall within the no negligence. What happened was the triple condition of the covenant, the terms result of the forces of nature. The cove- of which were made to guard against acts nant being prospective, no breach of it of the defendants individually, acts of was committed." persons claiming under them, and acts 2 Jones v. Hawkins, 3 Times Law R. occasioned by their means and default. (Nov. 19, 1886) 59. For the defendant See Dexter v. Manley, 4 Cush. (Mass.) 14, it was contended that the facts only went cited infra, Ch. IX. ; Swasey v. Brooks, to a breach of the covenant for title, 30 Verm. 692. while there was none ; that the fact that 1 Anderson v. Oppenheimer, L. R. 5 the defendant proved to have no title for Q. B. D. 602. "The covenant is pro- the last twelve months of the term was spective in its operation," said the court, no breach of the covenant for quiet en- " The defendant covenants that from the joyment, as the plaintiff had been in no time of granting the lease the plaintiffs' way disturbed in her enjoyment, the writ enjoyment of the premises demised to having been issued in 1885 while she was them shall not be obstructed by any act of in undisturbed possession. At most, the 126 § 95.] THE COVENANT FOR QUIET ENJOYMENT. [CHAP. VI. not been turned out, she had been disturbed in her quiet enjoy- ment, being told that if she did not do certain things and obtain a renewal she must go, and therefore gave judgment in her favor, but only for one shilling damages and without costs. § 95. As to the words "means, title, or procurement," in an old case, a fine having been levied of certain lands to the husband and wife and his heirs, the husband made a lease covenanting: against interruption or disturbance " by him or his assigns or by any other person or persons by his means, title, or procurement." After the death of the husband, the wife ousted the lessee who brought covenant against her as his executrix. On demurrer, it was objected that the title which the wife claimed was not by any title or means derived from the lessor, but from the conusor of the fine. But the court said, " The question is, if these words of the covenant ' by any person or persons by his means, title, or procurement ' are to be referred to the act, viz. the disturbance, or to the title under color of which the disturbance is made. For if it is to be referred to the disturbance and not to the title, the entry of the wife cannot be a breach of the covenant, for the dis- turbance is not by means of the husband, for he is dead, nor by his title, for the wife is in by survivorship, nor by his procure- ment ; but I hold that the words do not refer to the act of disturb- ance only, but to the title under color of which the disturbance was made, and they are to be construed as if it had been said that no disturbance should be made by any person by force of any title acquired by his means, and so it is a breach of the covenant. 1 damages would be only nominal. The to do with any arrangement between the amount paid for repairs would have had plaintiff* and the sivperior landlord. What to be paid anyhow in 1887, and presuma- the plaintiff had lost was the right of bly would then have been larger, and holding from March, 1886, to March, the defendant could not be made respou- 1887, at the rent of £180. But she sible for any sum which the plaintiff would have had to pay for repairs in any chose to pay the superior landlord for re- case, and had gained whatever might be newal. For the plaintiff it was contended the estimate of the extent to which the that there was a breach when that landlord house would get out of repair in a year, gave her notice, and she relied particu- The report says that the judge here went larly upon the word "denial" in the cov- into an elaborate calculation of the dam- enant, and contended that the measure of ages. He could not see what her damage damages was the interest on the money really was, and therefore thought she which she had to pay a year earlier than must have a verdict for one shilling dam- she otherwise would have done ; citing ages, and without costs. Lock v. Furze, L. R. 1 C. P. 441 ; infra, 1 Butler v. Swinerton, 2 Rolle, 286 ; Ch. IX. The court thought that as to Palmer, 339 ; Cro. Jac. 657. The report the damages the defendant had nothing in Cro. Jac. is less clear and full than in 127 § 97.] THE COVENANT FOR QUIET ENJOYMENT. [CHAP. VI. § 96. Apart from the construction thus given to these words, which are usually found in the covenant for quiet enjoyment and are not so found in the covenant of warranty, nothing is more generally or truly said than that " an eviction is necessary to a breach of the covenants for quiet enjoyment or of warranty." In the former editions of this treatise, the question of eviction was considered in the present chapter. But as the covenant of warranty is, in most of our States, the principal and often the only covenant for title in use, the question of eviction will be treated in connection with the latter covenant. § 97. So too the questions as to the pleadings and the burden of proof will be there considered. In subsequent chapters will be considered the measure of dam- ages for a breach of this covenant, 1 its capacity for running with the land, 2 its operation by way of estoppel or rebutter, 3 and the jurisdiction in equity for its specific performance. 4 either Rolle or Palmer, and of these the other report of the case. Now this case report in the former is the better. Sugden is in direct opposition to the case of Butler has said of this case : " It may be proper v. Swinerton ; but from other reports of to mention that the case of Butler v. Swi- Swan's case, Mo. 74, pi. 204, Dy. 257, nerton, which (to borrow an expression of pi. 13, Bendl. 138, pi. 208, and And. 12, Lord Kenyon's) is the magna charta of pi. 25, it appears that there was no actual the liberal construction of covenants for covenant iu the lease, but merely a cove- title, is also stated in Shep. Touch. 171, nant in law on the words concessit et de- whicli goes on to state, ' and so it is also if misit, and therefore the judges thought A. purchase land of B. to have and to hold the action did not lie because the covenant to A. for life, the remainder to C. the son determined with the estate of the lessee." of A. in tail, and after, A. doth make a lease Sugd. on Vend. (10th ed. ) 517. As to the of this land to D. for years, and doth cove- covenants implied from the words concessit nant for the quiet enjoying, as in the last et demisit, see infra, Ch. XII. case, and then he dieth, and then C. doth l Infra, Ch. IX. oust the lessee ; in this case this was held 2 Infra, Ch. X. no breach of the covenant,' and for this 8 Infra, Ch. XI. position Swan's case, Mich. 7 & 8 Eliz., is 4 Infra, Ch. XV. cited, and no reference is made to any 128 § 98.] THE COVENANT FOR FURTHER ASSURANCE. [CHAP. VII. CHAPTER VII. THE COVENANT FOR FURTHER ASSURANCE. 1 § 98. It has been said by a learned writer, " This covenant is deemed of great importance, since it relates both to the title of the vendor, and to the instrument of conveyance to the vendee, and operates as well to secure the performance of all acts neces- sary for supplying any defect in the former as to remove all ob- jections to the sufficiency and security of the latter." 2 Thus in a rather recent case in the Ninth Federal Circuit, a covenant against the claims of all persons claiming by, through, or under the gran- tor was obviously held to operate upon the estate in the premises which the grantor then had, but the further covenant that if he should obtain title from the United States he would convey the same with warranty, was held to be a covenant for further assur- ance under which the after-acquired title could be compelled to be conveyed, 3 and in a very recent case in Maryland the distinc- tion between this covenant and the others, as well as its impor- tance, was pointed out. 4 It is, however, perhaps less extensively used in the United States than any of the other covenants for title, which would seem to be owing rather to custom and the inartificial character of early conveyances than to any want of usefulness in the covenant itself or difficulty as to its application. For the importance of the covenant to the purchaser can hardly be Overrated. The remedy, indeed, by an action at law for dam- ages is one seldom sought and the reported cases are few. But whatever may be the doubt of a purchaser's right to the spe- cific enforcement by a court of equity of the other covenants for title, there is little or none with respect to that for further assurance. 5 1 For the forms of this covenant, see 8 Lamb v. Burbank, 1 Sawyer, (C. C. Ch. II. pp. 24, 29. U.S.) 227. 2 Piatt on Covenants. The latter part 4 Cochran v. Pascault, 54 Md. 1. of this sentence, must not receive too broad 5 See infra, Ch. XV. an application ; see infra, § 104. 9 129 § 99.] THE COVENANT FOR FURTHER ASSURANCE. [CHAP. VII. § 99. A reference to the form of the covenant shows that prac- tically it is an undertaking on the part of the vendor to do such further acts for the purpose of perfecting the purchaser's title as the latter may reasonably require, and the usual mode in Eng- land of thus requiring it, is for the purchaser to submit to his grantor a draft of the intended assurance with the opinion of counsel as to its necessity and propriety, 1 and the breach of the covenant does not occur until such a request is made and refused. 2 1 Some old authorities held that if the covenant he to make such assurance as the purchaser's counsel should devise, the assurance must not be devised by the pur- chaser himself, though he be learned in the law (Rosewel's case, 5 Rep. 19 b ; Bennett's case, Cro. Eliz. 9 ; Baker v. Bulstrode, 2 Lev. 95); but by the form of the covenant as usually expressed in modern times the assurance may be devised by either the purchaser or his counsel. The resolution in Manser's case, accord- ing to Coke's report (2 Rep. 3«), that "if the vendor is literate he is bound by law to seal and deliver the assurance presently upon request," and without time to con- sult with his counsel, seems by the report in Moore, 182, pi. 326, to be rather broadly laid down, and in Bennett's case, Cro. Eliz. 9, it is said that "B. issnot only to show him the assurance that he is to make, but is to permit him to read it, and go to his own counsel to consider it." Wotton v. Cooke, 3 Dyer, 337 b ; Symmes v. Smith, W. Jones, 314 ; s. c. Cro. Car. 299 ; Andrews v. Eddon, 1 And. 122 ; Heron v. Treyne, 2 Raym. 750 ; Miller v. Parsons, 9 Johns. (N. Y.) 336 ; are exam- ples of the various distinctions taken upon this point. According to modern practice, the vendor is entitled to a reasonable time in which to procure professional assist- ance. Dart on Vend. (5th ed.) 788 ; Sugd. on Vend. (14th ed.) 614. In Eng- land, it seems usual to tender the vendor's costs along with the assurance. Dart on Vend. (5th ed.) 788. 2 Thus in Fields v. Squires, Deady, (C. 0. U. S.) 388, the court said : "It is claimed that there is no breach of the covenant for further assurance, because it 130 does not appear that the complainant has devised or demanded any particular assur- ance or conveyance. Where the covenant is general and does not specify the par- ticular conveyance to be made, but only such as maj r prove necessary or be advised by counsel, the party claiming under it should demand such a conveyance as he conceives himself entitled to or counsel shall devise, before he can allege a breach and maintain an action for damages. In such case, until the party bound to make further assurance is advised as to what is demanded or needed, he cannot be said to be in default for not performing it. This is the rule in actions at law for damages, which can only be maintained when an affirmative breach of the cove- nant is shown ; " and the distinction was then pointed out between the remedy at law and in equity. " But I apprehend it will be found that the rule has little appli- cation to a suit in equity for the specific performance of a covenant. Such suit is not maintained upon a technical breach of the contract, but upon its continuing obli- gation, binding the party to perform it specifically. In the absence of any special provision in the covenant to the contrary, the suit itself is a sufficient demand for performance. This covenant is special, and requires the performance of a particu- lar thing — the conveyance of the prop- erty, if obtained from the United States. A neglect to perform such a covenant, for the purposes of this suit, is equivalent to a refusal to do so. In this respect the covenant does not differ from an ordinary agreement to convey real property ; " citing the text. § 103.] THE COVENANT FOR FURTHER ASSURANCE. [CHAP. VII. § 100. What, then, are " such further acts" as may be reason- ably required of a vendor ? First, the act must be necessary. If unnecessary, that is, an act which if done would be useless, it is not such an act as comes within the scope of the covenant. Thus where in a case in the Exchequer, the breach assigned was that the defendants had not directed trustees to do a certain act, the court held that the direction, not being either necessary to be made on the part of the defendant or obligatory on the trustees if made, was not an act within the meaning of the covenant. 1 § 101. Secondly, the act must be practicable. Thus where in debt on a bond for the performance of a covenant to make such reasonable assurances as the purchaser should devise, and the plaintiff required that a married woman should levy a fine, the defendant pleaded that the justices of the assize refused to take the cognizance of the fine because she was not compos mentis, and the court held that the condition was not broken. 2 § 102. Thirdly, the act must be lawful. Thus in a very recent case in the Chancery Appeals, Lord Cairns put the hypothetical case that a covenant for further assurance had provided that the grantor should convey any interest he might acquire in the land whether by fair or by fraudulent means, and asked if that was a covenant which a purchaser could have enforced, and he clearly thought it was not. " In my opinion, a covenant so framed would have been invalid as regards one alternative." 3 § 103. And the request for further assurance must not only be reasonable in itself, but be made within reasonable time. Thus i Warn v. Bickford, 7 Price, 550 ; 9 2 Pet and Cally's case, 1 Leon. 304. id. 43. So, where in a case in Maryland So in an anonymous case, Moore, 124, a bill was filed to compel a vendor to " Le verity fuit que al temps del request execute, by virtue of his covenant for la feme fuit egrotant sic ut laborare non farther assurance, another deed, to be pre- potuit. Et tout le court sembleront que pared under the direction of the court, malady excusera ccst obligation, car nefuit merely alleging that the deed already exe- reasonable request en temps quant la feme cuted did not convey a clear title to the ne fuit able de traveller, et issint si la. land in question with all its advantages as feme soil grossevicnt enscint sic ut ne poit they might be enjoyed under the original traveller." But of course this being but patent, the bill was dismissed with costs, temporary, the request might have been as neither in it nor at the hearing had renewed after recovery, the complainant shown any specific defect 3 Heath v. Crealock, L. E. 10 Ch. or ambiguity in the deed he had already App. 31. See this case infra, Ch. XI. accepted. Gwynn v. Thomas, 2 Gill & Johns. CMd.) 420. 131 § 104.] THE COVENANT FOR FURTHER ASSURANCE. [CHAP. VII. in an old case where husband and wife seised in right of the lat- ter covenanted that they had good right to convey the lands and to make further assurance within seven years, and the wife died within that time and her right descended to an infant so as to render performance impossible, the court held that it was the plaintiff's own fault, that the assurance should have been de- manded in the lifetime of the wife, and that her decease which prevented the performance of the covenant was the act of God. 1 § 104. Apart from this, it has been said in England that a pur- chaser may, as of course, require a fine to be levied or a judgment or other incumbrance to be removed. 2 As to the fine, however, although the older cases seemed to consider it a matter of course that a husband should be thrown into prison for contempt because his wife was unwilling to part with either her own real estate or her dower in his, 3 yet this in- humanity began to be doubted nearly two centuries ago, 4 and in the absence of local statutory enactment would probably not be enforced at this day on either side of the Atlantic. 5 As to the " judgment or other incumbrance to be removed," it is conceived that this proposition must be taken with some qualification. Of course so long as the contract is executory, the rule is general that the vendor must remove all incumbrances, no matter by whom created. But when it is executed by deed, and the ques- tion is what may be required under the covenant for further 1 Nash v. Ashton, T. Jones, 195 ; Skin- for that he has undertaken it, and must ner, 42. " But Pollexfen, of the same lie by it [i. e. in jail] if he does not per- side with Williams, showed another breach, form it ; " Hall v. Hardy, 3 P. Wms. 189 ; viz. that the wife was under age at the and for this, the somewhat flimsy reason time of the covenant, as appears by the was suggested that he was supposed to verdict ; she then had no power to convey have first gained his wife's consent. Win- the estate according to the covenant. And ter v. D'Evreaux, cited in Hall t\ Hardy, this was held a manifest breach, and supra. therefore judgment given for the plaintiff, i By Lord Cowper, Outram v. Round, nisi." 4 Vin. Ab. Baron and Feme, H. b, pi. 4. 2 Sugd. on Vend. (14th ed.) 613 ; Piatt Conservative as was Lord Eldon, his appre- on Covenants, 344, citing Heath, J., in ciationofthe policy of the law overcame King v. Jones, 5 Taunt. 427. his respect for precedent, and in Emery v. 8 Boulney v. Curteys, Cro. Jac. 251 ; Wase, 8 Ves. 505, his views were forcibly Middlemore v. Goodale, Cro. Car. 503. put. In the argument, Mr. Romilly cast " There have been a hundred precedents," well-founded doubt as to Sir J. Jekyll's said Jekyll, M. R., rather loosely as to "hundred precedents," which he said numbers, "where if the husband for a could not have been unknown to Chief valuable consideration covenants that the Baron Gilbert, who questioned the doc- wife shall join with him in a fine, this trine in his Lex Prceloria, 245. court has decreed the husband to do it, 5 2 Story's Eq. Jur. § 731 et scq. 132 § 104.] THE COVENANT FOR FURTHER ASSURANCE. [CHAP. VII. assurance, the proposition thus broadly stated must virtually de- pend either first, on the scope of the other covenants in the deed, or secondly, on the nature of the estate conveyed. For it has been seen that all the other covenants for title are either general, that is, extending to all paramount titles and incumbrances, or limited, extending only to defects of title or incumbrances created by the vendor. But the covenant for further assurance has in general the same form of expression, whether the other covenants which accompany it are general or limited. It is an undertaking that the vendor will execute such further assurances as may be deemed necessary by the purchaser. If the other covenants in the deed are general — if their breach will be caused by reason of an incumbrance not created by the vendor — then it is con- ceived that the proposition is correct, and that the purchaser may, instead of suing at law upon his other covenants, invoke the aid of equity to remove the incumbrance. But if the other covenants are limited, and the purchaser would therefore be without remedy at law upon them by reason of the incumbrance not having been created by the vendor, it is obvious that the vendor cannot be com- pelled to remove an incumbrance which he had not covenanted against. 1 So too the purchaser's right may depend on the nature of the estate conveyed. There is a class of cases which decide that although the covenants for title may be general, yet when the conveyance is but of a limited estate or interest, the cove- nants will themselves be restrained and limited to the estate conveyed. 2 Under such circumstances, it would be inequitable that the purchaser should, by virtue of a covenant for further assurance, require the conveyance to himself of any greater estate. 3 1 In Colby v. Osgood, 29 Barb. (N. Y.) plaintiff, and covenants to make further 339, the proposition was properly limited assurance. He, on the king's restitution, to the case of an incumbrance created by for £300 had a lease for years made to him the grantor, which therefore, of course, under the king's title. The decree was he came within his covenants. should assign his term in the part he 2 See infra, Ch. XII. sold." Here the original contract obvi- 3 And this will be found to be the true ously appears to have been that any con- meaning of the authorities. In the old firmation which might thereafter be made case of Taylor v. Dabar, 1 Chanc. Cas. 274 of this then doubtful title should inure to (reported also in the same words in 2 id. the benefit of the purchaser. So in Smith 212), "A purchaser of the crown lands in v. Baker, 1 Younge &Coll. Ch. 222, where the time of the late wars sells part to the one believing that he had the fee simple 133 § 105.] THE COVENANT FOR FURTHER ASSURANCE. [CHAP. VII. § 105. It is obvious, therefore, that no more is meant than that where the covenants for title are not limited or restrained either by the acts of the vendor or by the particular estate conveyed, the purchaser has a right, under the covenant for further assurance, to require the conveyance of a paramount title or the removal of an incumbrance ; but where the other covenants are limited to the acts of the vendor or restrained by any particular estate, the pur- chaser will have no right under this covenant to require the con- subject to his mother's life estate, con- veyed it to trustees for the benefit of cred- itors, covenanting for title and for further assurance, and it turned out that the mother had the fee simple, which on her death descended to him, it was clearly held that he must be compelled to convey the after-acquired estate. "It may be," said Vice-Chancellor Bruce, "that he did not know what his interest was at the time, but upon the mere circumstances which appear here he cannot be allowed to deprive his creditors of an estate which he disposed of to them for valuable con- sideration. It is not sufficient for him to say that he had no interest then ; that he acquired subsequently the estate which he said he had, and which he may or may not have supposed himself to have had at the time of the execution of the deed. . . . I see enough to satisfy me that there was a contract for value, by deed, for the sale of this specific estate to the creditors, and I cannot relieve the party from the effect of that contract." Sugden has said, in language which un- less carefully considered might mislead : "If the title prove bad and the defect can be supplied by the vendor, the purchaser may file a bill in equity for a specific per- formance of the covenant for further assur- ance. And a vendor who has sold a bad title will, under such a covenant for fur- ther assurance, be compelled to convey any title which he may have acquired since the conveyance, although he actually purchased such title for a valuable consid- eration." 2 Sugd. on Vend. (14th ed.) 612. This proposition is undoubtedly cor- rect if the covenant for further assurance Lb the only one in the deed, or if the other covenants are unlimited or general. But 134 if the covenant for further assurance is either expressly or by implication limited or restrained by other covenants or by the grant itself (Davis v. Tollemache, 2 Jurist, N. s. 1181), then the remark would seem to have too broad an applica- tion. In support of it the author cites Taylor v. Dabar, which as we have seen was clearly a case in which the conveyance of the after-acquired title was properly compellable, and refers to Seabourn v. Powell, 2 Vernon, 11, in which there was no covenant for further assurance at all. The case was, that Austin and his wife, being assignees of a term of years, mort- gaged it. Austin became insolvent and absconded, and Haynes, who had the real title, in compassion for Austin's wife, made a lease in trust for her, whereupon the plaintiffs, who were sureties on the bond which accompanied the mortgage, filed a bill, alleging " that the mortgagee had a plain equity to have the benefit of that title which was but a graft into that stock from which he derived ; and that the de- fendant had, since the taking of the estate (and so it appeared on proof), paid the in- terest to the mortgagee, and that therefore the plaintiffs, being but sureties in the bond, had an equity to have the benefit of the mortgage, and of that new-acquired title, to save them harmless against the bond, or else the trustees ought to be de- creed to make a new mortgage to the mort- gagees ; " and the Master of the Rolls, deeming the estate made by 11330168 to be a graft into the old stock, decreed the trustees to make a new mortgage to the mortgagee. For a full consideration of the right of a purchaser to the conveyance of an after- acquired estate, see infra, Ch. XI. § 106.] THE COVENANT FOR FURTHER ASSURANCE. [CHAP. VII. veyancc of any other estate, 1 or the removal of an incumbrance not created by the vendor. 2 § 106. But subject to these qualifications a grantor will be held to the honest performance of his covenant and not be suffered to escape therefrom by technicalities. Thus in a very recent case in England, the plaintiff claimed specific performance of a cove- nant for further assurance contained in a deed made in 1875 from the defendant to himself, the defendant having formerly been tenant in tail and having in 1871 executed a deed which would have turned the entail into a fee, but inasmuch as the father did not consent, only a base fee was created. In 1874 the plaintiff ineffectually attempted to purchase the fee simple. The father having died and the defendant being thus in a position to execute a deed which would turn the base fee into a fee simple, the plain- tiff brought this suit upon the covenant (which was to " execute every such disentailing and other assurance and do every such thing for the further or more perfectly assuring all or any of the premises," etc.), and although it was urged for the defendant that the father being now dead no disentailing assurance could strictly be executed, yet the court had no doubt that the plaintiff was entitled to a decree. 3 1 Thus in Davis v. Tollemache, 2 Jurist, N. s. 1181, (and not elsewhere reported,) a tenant in tail having mortgaged all the property to which he was entitled " in possession, reversion, remainder, or expec- tancy, or otherwise howsoever," with a covenant for further assurance, the mort- gagee filed a bill to compel him to execute a disentailing deed, but it was held that such an act was not within the operation of the covenant. " The utmost extent to which the court has gone with reference to covenants for further assurance," said Vice-Cbancellor Stuart, " has been to ex- tend their operation to that very estate and interest which are conveyed by the deed." See this case particularly noticed infra, Ch. XI. and XV. 2 This question was in part presented in Missouri, in Armstrong v. Darby, 26 Mo. 517, where the plaintiff sold certain lands by a deed containing the words "grant, bargain, and sell," which in that State imply, by force of a local statute, covenants for seisin, against incumbrances done or suffered by the grantor, and for further assurance (see infra, Ch. XII.). In a suit on the last of these covenants, the breach assigned was that a mortgage upon the premises, which had been created by the defendant's grantor, had been fore- closed, that the defendant was thereupon requested to pay off and discharge the in- cumbrance, which he refused to do, and that the plaintiff had been obliged to pay it off in order to protect his title and pos- session. To this the defendant demurred, and the demurrer was sustained, on the ground that the covenant must be taken to embrace such incumbrances only as were created by the grantor. 3 Bankes v. Small, 3 Times Law R. (Jan. 19, 1887), 277. Kekewich, J., held that although there was no recital in the deed of a contract to sell the fee sim- ple, yet notwithstanding Davis v. Tolle- mache, siipra, it could not be said to be going too far to hold that a contract for the sale of the fee simple had been entered into. The defendant had expressly cove- 135 § 107.] THE COVENANT FOR FURTHER ASSURANCE. [CHAP. VII. § 107. It seems that in England, where a purchaser, having taken his conveyance without the transfer of the custody of the title-deeds, afterward parts with his own deed to a subsequent purchaser of part of the property, he may, under the covenant for further assurance, require his original vendor who retains the title- deeds to execute a duplicate of the conveyance to himself for his security, as he might otherwise be without any deed whatever ; 1 but whether a purchaser who has neglected to take with his con- veyance a covenant from his vendor to produce the title-deeds can afterward compel the latter to enter into such a covenant, by virtue of the common covenant for further assurance, seems at least doubtful. He could compel the production of the title-deeds themselves, but not, it would seem, of any papers not strictly within that category. 2 Of course on this side of the Atlantic the registry acts leave no scope for such questions. nauted to execute a disentailing deed, which could only be done effectually by turning the base fee into a fee simple. In Davis v. Tolleraache, though there was a covenant for further assurance, there was none to execute a disentailing deed. If there had been, the Vice-Chancellor's decis- ion would apparently have been different. 1 Napper v. Allington, 1 Eq. Cas. Abr. 166, pi. 4 ; Dart on Vend. (5th ed.) 788. 2 Where in Fain v. Ayers, 2 Sim. & Stuart, 533, a bill stated that the plaintiff had resold the property which he had pur- chased with a covenant for further assur- ance, and prayed in the alternative a new covenant to produce title-deeds, or the actual production of the deeds themselves, a demurrer to the bill for want of equity was overruled. Vice-Chancellor Leach said, " I do not think that there has been a judicial decision upon the particular point whether, under a covenant for fur- ther assurance in a conveyance, a new deed of covenant to produce title-deeds may be required. But whatever doubt there may be upon that point, this bill, stating that the plaintiff has resold the property, prays alternatively either a new deed of covenant to produce, or the actual production of the title-deeds, to enable the plaintiff to show a marketable title upon his resale. The defendant's title-deeds 136 being the root of the plaintiffs title, and in that sense a sort of common property (see Barclay v. Raine, 1 Sim. & Stu. 449), I strongly incline to think that the plain- tiff has an equity to that extent ; and I am informed that the Lord Chancellor has expressed an opinion to that effect." But in Hallett v. Middleton, 1 Russ. 249, a case which occurred about the same time, where one had conveyed to trustees to sell, if the debts of a partnership in which he had been engaged should exceed a certain sum, and the trustees, reciting that the debts did exceed that amount, conveyed to a purchaser by a deed in which the heir of this partner joined with a covenant for further assurance, and the purchaser filed a bill praying either for the production of the accounts to show that the debts did exceed that amount, or for a covenant for their production, the bill was dismissed by Gifford, M. R., who said, "The covenant creates no obligations in respect of which the documents should either be delivered to him or deposited in a place of security, inasmuch as they are not part of his title ; " and added, " It is one of the most extraordinary at- tempts at relief that a court of equity has witnessed." The precise point stated in the text was not, it will be observed, set- tled in either of these cases. § 109.] THE COVENANT FOR FURTHER ASSURANCE. [CHAP. VII. § 108. A distinction is to be observed between mere agree- ments to convey by reasonable assurance, which are held to carry with them a right to covenants for title in the deed of convey- ance, 1 and a right to the insertion of those covenants in the deed of further assurance itself. " Where the agreement," says Sugden, " is to convey an estate upon a sale, the purchaser would have a right to a conveyance with usual covenants, although noth- ing was expressed about covenants in the agreement. But where the conveyance is really a further assurance, the purchaser must be supposed to have already obtained all such covenants for title as he was entitled to, and therefore could not require any new ones from the seller in the further assurance." 2 And however this may be, it is clear that the vendor is not, in the absence of an express agreement to the contrary, bound to covenant further than against his own acts ; but it would seem that out of abundant caution a stipulation to this effect is sometimes inserted by way of qualification to the covenant. 3 § 109. It would seem that in suing upon this covenant at law the course of pleading is to assign the breach in the words of the covenant. 4 Some particularity is, however, to be observed as to the form of the declaration. Thus where the defendant covenanted upon request by the testator to make further assur- ance to him his heirs and assigns, and the breach assigned was that the plaintiff as executrix requested the execution of a re- lease between the defendant and the plaintiff and one S. A. for the further assurance of the premises, on special demurrer the breach was considered badly assigned, as it was not shown wdiat right the plaintiff had, or to w r hose use the release was to inure, or why S. A. was to be a party to it. 5 So in a case in New York, where upon a covenant that the defendant would, upon the reason- 1 See infra, Ch. XIII. Coles v. Kinder, Cro. Jac. 571 ; Shep. 2 Sugd. on Vend. (14th ed.) 615. It Touch. 168 ; Wye and Throgmorton's case, seems at one time to have been thought 2 Leon. 130 ; Pudsey v. Newsam, Yelv. that upon an agreement to convey by 44 ; Lassels v. Catterton, 1 Mod. 67. But reasonable assurance the vendor was not sxich is not the law at the present day. bound to insert any covenants, "although 3 See supra, Ch. II. they be ordinary and reasonable ; yet the 4 Blicke v. Dymoke, 2 Bing. 105. A agreement not being to make it with reason- precedent for a declaration on this cove- able covenants, but only reasonable assur- nant will be found in 2 Chitty's Pleading, ance, he is not bound to seal it, for it is 543; see also 1 Lutw. 284 ; King v. Jones, not any part of the assurance, and the 5 Taunt. 418. assurance maybe without any covenants." 5 King v. Jones, supra. 137 § 109.] THE COVENANT FOR FURTHER ASSURANCE. [CHAP. VII. able request of the plaintiff, do and execute such further and other lawful assurances for the better and more effectually vesting and confirming' the premises as by the plaintiff or his counsel should be reasonably devised, advised, or required, the declaration averred that the defendant's wife would on her husband's death have a right of dower in the premises, and that the defendant had been requested by the plaintiff to execute a reasonable convey- ance and assurance of the said right of dower according to the true intent and meaning of the covenant, and on demurrer the court held the breach badly assigned, and that the plaintiff, having devised the assurance, was bound to give notice of it to the defend- ant and allow him a reasonable time to consider it. As no par- ticular assurance was specified in the covenant and none specified by the plaintiff, the defendant could not know what assurance was required. 1 1 Miller v. Parsons, 9 Johns. (N. Y.) 336. See also Warn v. Bickford, 7 Price, 550 ; s. c. 9 Price, 43 ; and Gwynn v. Thomas, 2 Gill & Johns. (Md.) 420, cited supra, p. 131, n. 1. In Blicke v. Dymoke, 2 Biug. 105, one purchased a house which was the subject of a tenancy for life with remainder to first and other sons in tail, and the tenant for life covenanted that the first son who should attain the age of twenty-one years should, at the retpiest of the purchaser, well and effect- ually convey and assure the premises by such common recovery, fine or fines, and other assurance as counsel should advise. In an action on this covenant, the declara- tion averred the seisin and death of the covenantee, and the descent on and seisin of the plaintiff as his heir, the attainment of the majority of the son, the request of the plaintiff that a common recovery should he suffered, and the neglect and refusal of the defendant so to do. On de- murrer, it was objected that there should have been an averment that the defendant had notice of the title having devolved upon the plaintiff, and also that it should appear that the suffering of the recovery was advised by counsel, of which the de- fendant had notice. But the Court of Common Pleas held (upon the authority of Reynolds v . Davies, 1 Bos. & Pull. 625 ; Skip v. Hook, Com. 625 ; Bristow and 138 Bristowe's case, Godb. 161 ; Hingen v. Payn, Cro. Jac. 475 ; Alfrey v. Blacka- more, 3 Bulst. 326, etc.), that the first averment was unnecessary ; that the plain- tiff need only show all that might bring him within the words of the covenant, and that any grounds of exemption must be shown by the covenantor. "I confess," said Best, C. J., " that, unaided by the light of former ages, I should have thought a perfect stranger to the defendant ought to have given him notice that he was be- come possessed of such an interest in the property as would authorize him to call upon the defendant for the performance of his covenant ; but by a series of cases it has been decided that it is not necessary to show any such notice ; and in two of the cases the reason assigned is this, that giving notice is no part of the provision ; by which I understand that it is only necessary for the plaintiff to show all that brings him within the covenant ; any ground of exemption must be shown by the covenant." As to the second objec- tion, it was held that it was admitted by the deed that a common recovery was necessary at all events, and that the words "as counsel should advise " only referred to assurances other than a recovery. " If a covenant be that a party shall execute such assurances as counsel shall advise, the plaintiff must show what has been 109.] THE COVENANT FOR FURTHER ASSURANCE. [CHAP. VII. In subsequent chapters will be considered the measure of damages for a breach of this covenant, 1 its capacity for run- ning with the land, 2 its operation by way of estoppel or rebutter, 3 and the jurisdiction of equity for its specific performance. 4 advised ; but that is not the covenant the breach of which is complained of here. In the first instance the defendant only en- gages to cause a recovery to be suffered, and he did not want to be told by counsel that such a proceeding was necessary, because, in the language of the deed, it is admitted to be necessary. The recovery he was to cause to be suffered at all events, but not to do more unless counsel should advise ; this is the strict meaning of the language of the covenant, and the words as counsel shall advise do not overrule the whole of the preceding sentence, but only the stipulation for assurances other than a recovery. Therefore, strictly col- lecting the meaning of the deed from the language of the deed itself, our judgment must be for the plaintiff." 1 See infra, Ch. IX. 2 See infra, Ch. X. 8 See infra, Ch. XL 4 See infra, Ch. XV. 139 § 110.] THE COVENANT OP WARRANTY. [CHAP. VIII. CHAPTER VIII. THE COVENANT OF WARRANTY. 1 § 110. In a preceding chapter has been sketched an outline of the doctrine of warranty from its introduction in England before the Conquest down to its natural disappearance after the passage of the statute of Uses. 2 As long as livery of seisin was necessary to the transfer of land, so long did warranty accompany the deed of feoffment. After the statute of Uses had led to the introduc- tion of conveyances which passing the estate by raising a use that the statute transferred into a possession dispensed with livery of seisin, a warranty in its proper sense was inappropriate to such modes of assurance, and a covenant naturally took its place. 3 But it was not a covenant of warranty — that is to say, a warranty in its old form, with words of covenant added thereto — such as is in use throughout the United States at the present day. The covenants which took the place of warranty, and which make their first appearance in the time of Elizabeth and are found in the reports in her reign and in that of James the First, 4 were, in simple and concise form, the type of those which afterward were fashioned by Bridgman in his retirement during the Protectorate, and introduced with all their elaboration on his return to prac- tice after the restoration of Charles. 5 But there is no evidence that the covenant of warranty ever had a place in English convey- ancing. From the report of the case of Williamson v. Codrington, decided by Lord Hardwicke in 1750, 6 and which arose under a deed executed in 1715 in the colony of Barbadoes, 7 it would seem that such a covenant had never before been seen by either 1 For the form of this covenant see 6 1 Vesey, 511. supra, Ch. II. p. 29. 7 Hence it would seem that the intro- 2 Supra, Ch. I. duction of the covenant of warranty in 8 Supra, § 13. America was not confined to those colo- 4 Supra, § 13. nies which afterwards formed the United • Supra, § 13. States. 140 § no.] THE COVENANT OF WARRANTY. [CHAP. VIII. the counsel or the Chancellor, and while they discussed its nature, no authority was cited by way of illustration, 1 and the case seems 1 The case was this : In the time of Charles I. the Codrington family removed with their property to Barbae) oes, and in 1715 William Codrington (afterward bar- onet) executed there a settlement to trus- tees of a plantation and negroes in trust for two illegitimate sons, " with a clause that he does oblige himself, his heirs, ex- ecutors, and administrators, to warrant and forever defend the said plantation and negroes, etc." He was afterward, in 1718, evicted, and having himself brought an ejectment compromised it, and in consid- eration of a certain sum paid him released all his title thereto. He then returned to England, where he died, and the cestuis que trust having filed a bill there for a satisfaction of the covenant out of the assets of his estate, it was urged for the executors and trustees under his will that they were strangers to the transaction, which was originally intended as a pro- vision to take effect from his death : " The deed contains, indeed, a general warranty, but there is no case where a court has con- sidered a covenant by way of general war- rant}' a personal covenant. This is the first instance of a gift of a general war- ranty in a voluntary deed, so that sup- posing it looked on as a covenant, yet being so extraordinary, how far should a court of equity give it aid ? . . . But this is a general warranty of the land, on which only a real remedy can be had, as if they were in possession, and a real action was brought against them to entitle the tenant to the prcecipe to vouch the warrantor or his heirs, or to bring warrantia chartoe, to affect the lands of the warrantor or his heirs, unless it was a chattel estate recov- ered, for which there maybe personal dam- ages." But Lord Hardwicke held that the complainants were entitled to relief ; that they might come into equity, as well as law, to have satisfaction for that debt on that specialty out of assets ; and then, re- ferring to the contention that there was no instance in which satisfaction could be demanded against an estate unless for some covenant on which an action or suit might be maintained, the Chancellor went on to say, " Therefore plaintiff resorts to the clause, which he insists on as a cove- nant from Sir William, entitling him to satisfaction for what was lost by eviction of the estate out of his assets, real and personal ; and if it amounts to a covenant, it will intitle thereto. I am of opinion it is not to be taken according to the objec- tion for defendant as a strict warranty of the land ; which would be contradictory to the words of the clause. The word ' war- rant,' when properly applied, has, to be sure, a particular sense ; but has, in gen- eral, a further sense ; therefore it is not necessary to understand warranty in a deed or covenant barely as a warranty to the title to the realty ; but it shall be taken secundum subjectam materiam. Here are chattels to be warranted in this deed ; some of which are certainly personal things, as cattle, horses, etc., though negroes in some instances are considered as annexed to the plantation. Then there are words binding his executors and administrators, which must be rejected if to be construed as a mere real warranty of the land. This clause, therefore, is inconsistent with that narrow construction ; nor is it penned as a real warranty, which is, ' I do for myself and my heirs warrant such land ; ' here the words are. ' I do oblige, ' etc. , which amounts to the same as 'I covenant,' etc., for many other words in a deed will amount to a covenant, besides the word covenant, as ' I oblige, agree.' This, then, is barely a covenant for himself, heirs, ex- ecutors, and administrators, to warrant ; which word must be construed in a larger sense than warranty in a strict legal sense — as large as defend. That construction a court of law or equity must put on it. I agree the construction must be the same in both courts, and there is no difficulty, I think, in so construing it in a court of law." And it was decreed that the plain- tiff should have satisfaction for the value of the plantation as it stood at the time of sale, and the negroes, etc. from the death of the testator, according to the value at the time of the eviction. See this case further referred to in Ch. XV. 141 § 113.] THE COVENANT OF WAERANTY. [CHAP. VIII. to be almost the only one in the English reports in which this covenant occurs. 1 § 111. The principal emigration to America occurred about the time of the introduction into general use of the covenants for title in their present form, and in the earliest conveyances which re- main of record in the colonies are to be found some or all of these covenants, more or less simply or elaborately set forth, together with, in general, a clause of warranty, sometimes with and some- times without the addition of words of covenant. 2 Later, the words of covenant became more general, and at the present day their use is almost universal. § 112. Such is the American covenant of warranty. As to its extent and scope different opinions have at times been formed, some giving to it much or all of the effect of a warranty at com- mon law, and others considering it as merely a covenant for quiet enjoyment. As the latter is unquestionably the sounder view, and as the former has led to the introduction of doctrines incon- sistent with the present system of conveyancing, a brief notice of the subject may be permitted. § 113. It has been considered by eminent authority in America that an action of covenant could have been brought upon a war- ranty which accompanied the transfer of a freehold. 3 Such, how- ever, was not the law, and no such case can be found in the books. Warranty in its origin savored so much of the realty that it could be employed only when the estate which was trans- ferred was a freehold. 4 Nor when the paramount estate was 1 In Williams v. Burrell, 1 C. B. 402, a competent assurance of title in England, the clause in the lease was a warranty in both the warranty and the modern cove- the old form. In 1 Williams's Convey- nants continued to be used in our early ancing, 279, published in 1790, there is a conveyances and have both come down form of a deed of bargain and sale which together to our own time." contains a covenant of warranty. 3 Parsons, C. J., in Gore v. Brazier, 3 2 Supra, § 14. In a note to Foote v. Mass. 523, 545. Burnet, 10 Ohio, 322, Mr. Wilcox, the * " Glanvill's predecessors," says Judge reporter, says : " Our ancestors, who erni- Holmes, " probably regarded warranty as grated just about the time the modern an obligation incident to a conveyance, covenants for title were coming into use in rather than as a contract. But when it the mother country and before the war- became usual to insert the undertaking to ranty had been entirely abandoned, seem warrant in a deed or charter of feoffment, to have brought with them both the mod- it lost something of its former isolation as ern covenants and the warranty, and while a duty standing by itself and admitted of the former alone were soon found to be being generalized. It was a promise by 142 § H3.] THE COVENANT OF WARRANTY. [CHAP. VIII. less than a freehold, was warranty effective as a redress. 1 But as time wore on, and leasehold estates grew into greater impor- tance, the law underwent some change. In the reign of Henry the Sixth we find a case in which a warranty contained in a lease for years was allowed to be used as a personal covenant, 2 and in that of James the First another in which on a warranty contained in a conveyance of a freehold a recovery in an action of covenant was allowed when the adverse claim was under a term for years. 3 deed, and a promise by deed was a cove- nant (Pincombe v. Rudge). This was a covenant having peculiar consequences at- tached to it, no doubt. It differed also in the scope of its obligation from some other covenants, as will be shown hereaf- ter. But still it was a covenant, and could sometimes be sued on as such." Common Law, 377. 1 That is to say, in neither case could a warrantia chartm have been brought. 2 Year Book 32 Hen. VI. 27, supra, p. 15, n. 3. 8 Pincombe v. Rudge, Hob. 3 g ; Noy, 131 ; Yelv. 139 ; in Excheq. Chamb. 32 ; 1 Rolle, 25 ; see this case referred to, supra, p. 15, n. 4, and infra. Nothing can be clearer than Judge Hare's notice of this case in the note to Spencer's case. "At common law war- ranty was essentially a covenant real. The right to enforce it, as well as the obliga- tion which it imposed, descended on either side to the heirs of the original parties ; the remedy was prosecuted by and against them ; and compensation was awarded, not in damages, but in kind, by a judg- ment for the recovery of other lands of equal value with those which had been lost, whether the eviction took place in the lifetime of the ancestor or after his death. Buieker v. Buicker, 11 Ohio, 240, 245. No system could be more compre- hensive or more logical ; its only fault was a logical subtlety and refinement due to the character of the age which gave it birth. But however well it may have been suited to the purposes which it was designed to subserve, it necessarily proved inefficacious when applied to the modes of tenure and forms of conveyancing of a new and different nature. Thus no re- covery could be had in a voucher to war- ranty or warrantia charta; on a warranty attached to a term of years, which was regarded by the common law as a chose in action rather than an estate, and had no recognized place in the complicated system of real actions ; and the difficulty was equally great where the eviction was for a term, although the estate warranted might be a fee. Hence there would have been an entire failure of justice had not the courts consented to interpret the warranty as a covenant personal, when the circumstances were such that it could not take effect as a covenant real. A warranty could not be annexed to the grant of a chattel, real or personal, but if the grantor warranted the title the grantee might bring covenant. Co. Litt. 289. The rule and the ex- ceptions are exemplified by the case of Pincombe v. Rudge, Yelv. 139 ; Hob. 3 ; which has sometimes been mistaken as an authority for the position that a war- ranty might always be construed as a per- sonal obligation, whereas what it really shows is, that when a warranty failed as a covenant real, necessity would mould it into a covenant personal. The plaintiffs, who declared on a covenant in a deed granting them an estate for their joint lives by the words concessi and demist, and also containing an express warranty, after setting forth the deed in full, without attempting to state its legal operation, went on to aver a breach by an eviction under a lease for years, executed prior to the grant. The defendant pleaded that an action of vmrrantia chartcc for the same cause of action had been brought, and was still pending in another court, and also ex- cepted to the sufficiency of the declaration on the ground that an action of covenant would not lie upon a warranty. But it was held that, as the eviction was merely 143 § 113.] THE COVENANT OF WARRANTY. [CHAP. VIII. These cases have at times been considered as deciding broadly that a personal action of covenant would at any time have lain upon a warranty, 1 and on the other hand it has more than for a term of years, the warrantia chartce was misconceived, and therefore no bar to another suit ; and that even if covenant would not lie on the warranty, it might be sustained on the obligation for the quiet enjoyment of the premises, implied in the word dcmisi. The case was subse- quently brought before the Exchequer Chamber, where the decision of the King's Bench was affirmed on the broader and more liberal principle that when a war- ranty would fail altogether unless a change were made in its attributes, it may be in- terpreted as a covenant personal, and judg- ment given for damages instead of for an equal value in land. This case there- fore establishes, first, the existence of an essential distinction between a warranty in the proper sense of the term, and a covenant to warrant ; and next, that a warranty may be construed as a covenant when there is no other mode of rendering it effectual." 1 Smith's Leading Cases (8th Am. ed.), 215. Nearly two hundred and fifty years elapsed before a similar case was presented in England, but in Williams v. Burrell, 1 C. B. 402 (1845, noticed infra, Ch. IX.), nearly the same question arose, and the decision in Pincombe v. Rudge was dis- tinctly approved and followed. 1 Booker v. Bell, 3 Bibb, (Kj.) 173 ; Marston v. Hobbs, 2 Mass. 439 ; Gore v. Brazier, 3 id. 523 ; Townsend v. Morris, 6 Cow. (N. Y.) 127 ; Rickets v. Dickens, 1 Murph. (N. C.) 343 ; Allison v. Allison, 1 Yerg. (Tenn. ) 24 ; and in most of these cases an action of covenant upon a war- ranty in its old form was sustained. Such a course of decision can do no harm, and will "no doubt correspond with the in- tentions of the parties " (Townsend v. Morris, supra), but it must be considered as unsupported by the authority of the older common law. This was clearly shown by Judge Story's note to Pincombe v. Rudge, in the American edition of Hobait : " Oh. J. Parsons, in Gore v. Brazier, 3 Mass. 523, held that a personal action would have lain in England upon a 144 covenant of warranty annexed to a fee, and where the ouster was of the freehold by title paramount. And he cited Waters v. Dean of Norwich, 1 Brownl. 21; s. c. 2 id. 158. But there the plaintiff sued on a covenant to save harmless, etc., dur- ing the term, which was for life ; and the breach assigned was a disturbance by an antecedent lease to one T. for years. So that the case was not different from that in Hobart, 3 ; the freehold not being brought in question. It is true that Lord Coke, who was chief justice, in giving his opinion, said among other things ' that covenant in law extends to lawful evic- tions, and to estates in being, and not where an estate is determined. So also, he supposed, to express real covenants, which extend to freehold or inheritance, as warrant and defend, upon which a man cannot have an action if he be not ousted by one which hath title.' This last sen- tence is that upon which Ch. J. Parsons seems to have relied ; but it is manifest that Lord Coke was referring to the dif- ference between a covenant in law and an express covenant, and not to the cases in which covenant would lie on a warranty. According to the case of Pincombe v. Rudge (Hob. 3), there is no doubt that covenant would lie if the ouster by title paramount was not of the freehold, but for a term of years only. For is it to be pre- sumed that Lord Coke had any notion in his mind that, if the ouster was in fee, covenant would lie on a warranty ? And the covenant in the case before the court was not a warranty, but a covenant to save harmless and acquit ; in short, equiv- alent to a covenant for quiet enjoyment. Besides, the case in Brownlow was decided in 10 Jac. 1 ; and that of Pincombe v. Rudge was finally decided in the Ex- chequer Chamber by all the judges, in 11 Jac. 1. And therefore, if there be any discrepancy between them, the principle established by all the judges in the last case is the true one. And it seems to me there is a necessary implication in this last case against the doctrine of Ch. J. 113.] THE COVENANT OF WARRANTY. [CHAP. VIII. once been seriously urged, as it was in Williamson v. Codrington, that upon a covenant of warranty in its present form nothing but a writ of warrantia chartce can be brought. 1 In truth, save that the old warranty and the present covenants were alike in- tended as a means of redress against loss of the estate, nothing could be more unlike than the two. The former was a part of the system of feudal tenure, and the remedy upon it by writ of tvar- rantia chartce or voucher, though peculiar, was appropriate. The latter was a part of what some have called the modern system of law, and the remedy upon it by the personal action of covenant equally appropriate. Warranty originally partook of the sim- plicity of the common law, and its effect by way of rebutter of the heir was simple and just, till the ingenuity of the times seized upon it for a particular purpose and fashioned it to meet an end — that of barring estates tail — for which it had never, of course, been intended, and hence arose complications which to one im- perfectly learned in the history of the subject would seem to pre- sent great difficulties. 2 Such an effect was obviously inappropriate Parsons. At all events, the authority he relies on does not support his dictum." The remainder of the note to Pincomhe v. Budge is by Judge Williams, the editor of this edition of Hobart, and with the ex- ception of the note by Mr. Wilcox to Foote v. Burnet, 10 Ohio, 322, was, when the earlier editions of this treatise were published, the only instance in which the subject of covenants for title had been, on this side of the Atlantic, treated in a connected form. 1 Chapman v. Holmes, 5 Halst. (N. J.) 23 ; see the remarks of Tilghman, C. J., in Jourdan v. Jourdan, 9 Serg. & Rawle, (Pa.) 276; Stout v. Jackson, 2 Rand. (Va. ) 148 (see three elaborate opinions in that case); Tabb v. Binford, 4 Leigh, (Va.) 132; Rex v. Creel, 22 W. Va. 373. In Chapman v. Holmes, supra, both the counsel and the court seem to have overlooked the distinction between a warranty and a covenant ; the coun- sel, in an elaborate and otherwise able argument, insisting that because voucher and warrantia chartce were the ancient remedies on the former, they must still be so on the latter. In Townsend v. 10 Morris, 6 Cow. (N. Y.) 123, there was more room for such an argument, for there was no covenant in hcec verba, but the form was as in the old charters, and the court, in deciding the obvious point that the assignee of a vendee could sue upon a covenant of warranty, inti- mated that the tenant of the freehold always had his option to bring covenant, or resort to the real action. A passage in Bac. Ab. Covenant, C, that "in the evic- tion of a freehold no action of covenant will lie upon a warranty," was misquoted in Pitcher v. Livingston, 4 Johns. (N". Y.) 11, ami cited as an authority that a per- sonal action would not lie upon "« cove- nant of warranty." 2 In the Preface to the tenth volume of his Reports, Coke thus brings to the notice of his reader li Edward Seymor's case, concerning warranties, a cunning kind of learning (I assure you), and very necessary for the purchaser, for it armeth him not only with a sword by voucher to get the victory of recompense by recovery in value, but with a shield to defend a man's freehold and inheritance by way of rebutter ; which title of the law is, in my 145 § H4.] THE COVENANT OF WAREANTY. [CHAP. VIII. when applied to a mere personal covenant, and no case in England can be found in which to such a covenant or any other was ever given the operation of warranty by way of estoppel or rebutter. 1 § 114. But between warranty and the modern covenant there is another distinction than the mere form of the remedy. War- ranty, when annexed to a freehold, possessed to a great degree the attributes of the covenants for seisin and of right to convey, 2 as is shown by the judgment pro loco et tempore? And this was so whether the warranty was expressed in words or was implied from So too as respects a lease ; " the word demisi the words of grant. opinion, excellently curious, and curiously excellent. And yet, when you have read this case, you will concur with me that it was more weighty than difficult." 1 " Can you produce any authority," asked that great judge, Sir George Jessel, M. R., of the counsel arguing the recent case of General Finance Co. v. Liberator Society, L. R. 10 Ch. Div. 18, "for the proposition that estoppel can be created by covenant ? " and counsel could not. Cited in Bigelow on Estoppel (4th ed. ), and see this case, infra, Ch. XI. " There is a diversity," says Coke, " be- tween a warranty that is a covenant real which bindeth the party to yield lands and tenements in recompense, and a cove- nant annexed to the land which is to yield but damages." Co. Litt. 384 6. In Jacock v. Gilliam, 3 Murph. (N. C.) 47, 8. c. 4 Hawks, 31 0, a tenant in tail aliened with covenant of warranty, and it was argued that a discontinuance had been thus caused, and the issue in tail barred. " But," said Taylor, C. J., " the law has made a clear distinction between a cove- nant real and a covenant personal ; and to a warranty alone, in the original and proper sense of the term, has it imparted the ef- fect of intercepting the descent to the heir, because he, and not the executor, is bound to warrant and secure the land to the cove- nantee (warrantee) and his heirs. The use and adoption of the form in which the ancient warranty is expressed would indi- cate the intention of the parties to avail themselves of such remedies as appertain to the warranty only, and the change of that form will justify the reasonable in- ference that they designed to abide by the 146 security which is afforded by covenant." So in Pollock v. Spiedel, 17 Ohio, 439, where the facts were similar, the court said : " Though the defendant here claims under a conveyance from the tenant in tail with covenants of warranty, yet the plain- tiffs are not thereby estopped or barred of their action, because their title does not come from the warrantor as its source. Nor does it alter the case that they have received assets from the estate of the war- ranting ancestor. Modern covenants of warranty are regarded as personal only, and the remedy, on eviction, is by an action on the covenant against the grantor or his real or personal representatives, to recover in damages for the land lost." In Jacock v. Gilliam, it seems to have been doubted whether a discontinuance did not necessarily bar the issue in tail. Such, however, was not the case. Although the issue might be obliged to bring an action in order to get possession, yet in that action there was nothing in the warranty of the ancestor, since the statute de donis, to prevent a recovery. Butler's note to Co. Litt. 365. So Mr. Preston has said, " On the effect of fines, etc. by tenant in tail, the issues are not barred unless there is a common recovery, or fine with proclamation, or in some special cases a warranty." Preston's Law Tracts, 29. By the "special cases" is here meant those referred to supra, § 10. See further, as to the effect of a warranty by way of rebutter or estoppel when used in modern convey- ances, Ch. XL 2 See Bricker v. Bricker, 11 Ohio, 245. 3 See supra, § 11. § 1U-] THE COVENANT OF WARRANTY. [CHAP. VIII. imports a power of letting, as dedi a power of giving," * and al- though on the warranty implied by dedi a ivarrantia chartce was the appropriate remedy, while on that implied by demisi the rem- edy was by covenant, yet this of course made no difference in principle, and as to neither of them was an eviction always neces- sary to a recovery. 2 And at the present day it has often been urged, in cases of apparent hardship, that the modern covenant of warranty should do more than protect against " the consequences incident upon a defective title, " 3 and should, at least to some extent, com- prise within itself the virtues of all the covenants for title ; yet in the absence of peculiar local construction, 4 and, as has been 1 Holder v. Taylor, Hob. 12. " Holder brought an action of covenant against Taylor, and declared for a lease for years made by the defendant by the word de- misi, which imports a covenant ; and then shows that at the time of the lease made the lessor was not seised of the land, but a stranger, and so the covenant in law broken. But he did not lay any actual entry by force of his lease, nor any eject- ment of the stranger, nor any claiming under him, whereupon it was objected that no action of covenant would lie, because there was no expulsion. But the whole court was of opinion that an action did lie ; for the breach of the covenant was in that the lessor had taken upon himself to demise that which he could not ; for the word demisi imports a power of letting, as dedi a power of giving, and it is not reasonable to enforce the lessee to enter upon the land, and so to commit a tres- pass. But if it were an express covenant for quiet enjoying, there perhaps it were otherwise." In Pincombe v. Rudge, id. 3, the action was on the warranty implied by the word dedi. See supra, p. 143. 2 Pomfret v. Ricroft, 1 Saund. 322, note ; Holder v. Taylor, ubi supra; Crouch v. Fowle, 9 N. H. 219 ; Grannis v. Clark, 8 Cow. (N. Y. ) 36; Line v. Stephenson, 5 Bing. N. C. 183 ; see infra, Ch. XII. 3 The definition of the covenant for quiet enjoyment, supra, § 91. 4 Such as prevails in South Carolina, where, as was said in Moore v. Lanham, 3 Hill, 304, "The covenant of warranty has always been considered as broken whenever a paramount title could be shown in another, and it has been uniformly held that the vendee might bring cove- nant on the warranty, or resist an action for the price, without actual eviction ; Pringle v. Whitten, 1 Bay, 256 ; Bell v. Huggins, id. 326 ; Sumter v. Welsh, 2 id. 558 ; Champness v. Johnson, 1809 ; John- son v. Viscon, 1811 ; Furman v. Elmore, 1812 ; Mackey v. Collins, 2 N. & McC. 186;" and see also Faries v. Smith, 11 Rich. L. 82. So in Jeter v. Glenn, 9 id. 378, the court seemed to consider that it was "advancing the purpose of the legis- lature, promoting the usual intention of parties, and answering the ends of jus- tice, to say that covenant of warranty contains all the five covenants which Eng- lish conveyancers usually insert in con- veyances in fee simple," except perhaps it was doubted of the covenant for fur- ther assurance. But since Jeter v. Glenn it has been said to have been consist- ently held that "the covenant of warranty embraces all the five English covenants, namely, that the vendor is seised in fee, that he has a right to convey, but the vendee shall quietly enjoy, and for further assurance." Welsh v. Kibler, 5 S. C. (n. s.) 405 : Evans v. McLucas, 12 id. 62. The covenant for quiet enjoyment seems to receive the same construction there as elsewhere. Singleton v. Allen, 2 Strobh. Eq. R. 173 ; Jeter v. Glenn, supra. The statutes by which the form and ef- fect of the covenant of warranty have been regulated in many of the States are noticed infra, Ch. XII. 147 § H-4.] THE COVENANT OF WARRANTY. [CHAP. VIII. suggested, with the exception of a somewhat peculiar effect given to its operation by way of estoppel or rebutter, 1 such a construc- tion is generally denied, 2 and the covenant of warranty is held to 1 Infra, Ch. XI. 2 Griffin v. Fairbrother, 1 Fairf. (Me.) 96 ; Witty v. High tower, 12 Sm. & Marsh. (Miss.) 478 ; Blydenburgh V. Cotheal, 1 Duer, (N. Y.) 195 ; Vanderkarr v. Vander- karr, 11 Johns. (N. Y.) 122 ; Greenvault v. Davis, 4 Hill, (N. Y.) 643; Rindskopf v. Fanners' Co., 58 Barb. S. C. (N. Y.) 49 ; Clarke v. McAnulty, 3 Serg. & Rawle, (Pa.) 364; Patton v. McFarlane, 3 Pa. (old Pa., not Pa. St.) 422 ; Allison v. Al- lison, 1 Yerg. (Tenn.) 25; Crutcher v. Stump, 5 Hayw. (Tenn.) 100, overruling, said Catron, J., in Randolph v. Meeksj Mart. & Yerg. (Tenn.) 61, Talbot v. Bed- ford, Cooke, (Tenn.) 447, where Overton, J. had said, " The modern covenant to war- rant and defend is inclusive of a covenant of seisin of an indefeasible estate, and of a right to convey, and, as to the mode of re- dress, of quiet enjoyment." " The modern covenant of warranty," said Gibson, C. J., in Stewart v. West, 14 Pa. 338, "differs from the ancient warranty, not because the latter bound the feoffor to defend the land, but because it bound him to render, not damages, but a recompense in kind for a breach of it. The form of the writ, as well as the nature of the recompense in value, was different, but the measure of the obligation was the same. The feoffor was bound by his war- ranty to defend the land ; the grantor is bound by his covenant to do as much, and no more, by defending the grantee from eviction on a superior title. By reason of its straitness, even this modern covenant of warranty has given place, in English conveyances, to the common covenants for title against particular defects, which it does not reach. In Pennsylvania it has been retained by unprofessed scriveners as a nostrum supposed to contain the virtues of the whole five ; but its potency has not been recognized by the bench. The writ of warrantia chartce was founded on an as- size, or a writ of entry in the nature of an assize, brought against the feoffee ; and the covenant of the feoffor was to warrant the land by defending the action. The 148 modern writ of covenant is brought against the grantor to recover damages for a failure to do so. The gravamen, therefore, is not the defect of title, but the eviction conse- quent on it." And in Reed v. Hatch, 55 N. H. 336, it was considered that, where the other covenants for title (for seisin, quiet enjoyment, etc.) were contained in a deed, the addition of a covenant of war- ranty was "a meaningless and superfluous covenant." In a note to the case of Paxson v. Lef- ferts, 3 Rawle, (Pa.) 68, from the pen of the father of the reporter, the difference between the warranty and the covenant is thus adverted to : " Warranty, in its ori- ginal form, has long been abolished both here and in England. The more plain and pliable form of covenant has been sub- stituted. The grantor for himself, his heirs, etc., covenants with the grantee, his heirs and assigns, that he and his heirs, executors, and administrators will warrant and defend the premises conveyed against himself, his heirs, etc., either generally or specially, as the parties agree. This is prima facie a covenant to do what in the old form was expressly done, and it might admit of a curious construction. If by the warranty in its original nature, the war- rantor was obliged to render land only, the covenantor might, perhaps, be entitled to tender land as a compliance with his cov- enant, and might also avail himself of all the niceties and subtleties which charac- terized the ancient doctrine. It is true that in some cases damages were also re- coverable by the warrantee. If a man be impleaded in assize, etc., and he brings a writ of warrantia chartoz, if the plaintiff recover his warranty, he shall recover his damages, and also to have the value of the land "lost. Fitz. Nat. Brev. 315. But it would seem that the same rule did not take place if the warrantor was vouched, and not sued by warrantia chartce. Br. Warr. Chart. 31. We have no reason to believe that in this State a covenantor ever attempted to discharge himself of the cove- nant to warrant and defend, by pleading 114.] THE COVENANT OF WARRANTY. [CHAP. VIII. be simply a covenant for quiet enjoyment, 1 the only difference being that under the latter, as sometimes expressed, a recovery may be had where it would be denied under the former. 2 that he was always ready to convey lands of equal value, or by showing that he had no notice of the eviction, and no demand of other land, etc. On the contrary, the covenant, like all other covenants, has al- ways been held to sound in damages merely, which, after judgment, may be recovered out of the personal or real estate, as in other cases. If, indeed, the covenant admitted of such a construction, little advantage would be gained by it." The remainder of this note is quoted infra, Ch. XI. 1 Emerson v. Proprietors, 1 Mass. 464; Caldwell v. Kirkpatrick, 6 Ala. 62 ; Fow- ler v. Poling, 2 Barb. S. C. (N. Y.) 303; s. c. 6 id. 165 ; Rea v. Minkler, 5 Lans. (N. Y.) 196 ; Atheus v. Nale, 25 111. 198; Bostwick v. Williams, 36 id. 70 ; Reed v. Hatch, 55 N. H. 336. In Peck v. Houghtaling, 35 Mich. 127, Graves, J., in delivering the opinion, said, " It may not be amiss to observe that au- thorities differ as to whether there is any real difference in the operation of these covenants [for quiet enjoyment and war- ranty]. Mr. Rawle appears to consider them sufficiently distinguishable to forbid the introduction of one of them to main- tain an averment of the other. Chancellor Kent lays it down that a covenant to war- rant and defend is in effect a covenant for quiet enjoyment. It would scarcely be safe, however, to assume this to mean that either may be pleaded and the other given in evidence in covenant to support the allegation. Whatever may be the true doc- trine, it is far safer, to say the least, to plead the covenant according to the form of it in the deed, and leave the effect to be eventually ascertained without raising any embarrassing question of variance." It is not believed that there is the least difference of opinion between the two writ- ers. The author of this treatise meant no more than that when there had been an alleged breach of one covenant, it would be a variance if the deed contained another ; and it is not probable that the distinguished Chancellor, who was speak- ing of the substantial similarity of the covenants, ever thought that it extended to the technicalities of pleading. And such too seems to have been the opinion of the learned judge in the case cited. 2 A striking illustration is shown in the case of Dobbins v. Brown, 12 Pa. 75, {infra, p. 204, n. 2,) in which a recovery was denied upon the covenant of war- ranty, though it is evident that had the covenant been one for quiet enjoyment the plaintiff must have recovered. The cases which give a greater effect to the covenant of warranty than to the covenant for quiet enjoyment will be found on examination to depend upon the peculiar wording of the former covenant. Thus in Williams v. Wetherbee, 1 Aik. (Verm.) 240, where the covenant was "to warrant and defend against all lawful claims of all persons," it seems to have been thought sufficient that a judgment had been recovered under the paramount title in an ejectment of which the cove- nantor had notice ; in other words, that the mere omission to "warrant and de- fend " the land was a final breach, and such was the view taken in Drury v. Shumway, D. Chip. (Verm.) 110, where, however, the form of the covenant is not given. "The last objection supposes," said the court in the former case, ' ' that a final recovery in ejectment by a title adverse and paramount is not a breach of this covenant, but that the plaintiff must have been actually turned out by writ of possession. In support of this, it is said that a covenant of warranty is the same in effect as a covenant for quiet enjoyment. But we regard a covenaut of this descrip- tion as something more than one for quiet enjoyment. It is a covenant to defend, not the possession merely, but the land and the estate in it. Upon this occasion we are to suppose the title derived from the defendant to have been fairly litigated and adjudged insufficient. The after ceremony of turning the plaintiff out of possession, being an act beyond the control of either of these parties, and depending wholly upon the pleasure of a stranger, ought not to 149 § US-] THE COVENANT OF WARRANTY. [CHAP. VIII. § 115. So, too, with respect to a covenant already noticed as sometimes employed on this side of the Atlantic, but rarely, if ever, in England, called the covenant of non-claim. 1 As a gen- eral rule, no distinction has in any way been taken between this covenant, and the ordinary covenant of warranty. Both are, in general, held to have the same operation by way of estoppel, 2 both equally possess the capacity of running with the land, 3 and confer the same rights as to a recovery in damages. As to the estoppel, however, a contrary opinion has been expressed in Maine, 4 in a case whose peculiar circumstances were such that the enforce- ment under such a covenant of the doctrine of estoppel as gen- erally considered to exist throughout the New England States, affect the present remedy of the plaintiff. He has the stipulation of the defendant that he shall forever hold this laud, in the character in which he purchased it. as a freeholder in fee simple, and this stipula- tion must not be violated, when the plain- tiff is divested of all estate and left in a precarious occupancy, as a trespasser to a third person." And this decision was cited and approved in the recent case of Russ v. Steele, 40 Verm. 310, where the covenant was similar. 1 See supra, § 22. 2 Gee v. Moore, 14 Cal. 472; Holbrook v. Debo, 99 111. 372 ; Fairbanks v. Wil- liamson, 7 Greenl. (Me.) 99; Trull v. Eastman, 3 Met. (Mass.) 121; Gibbs v. Thayer, 6 Cush. (Mass.) 33 ; Miller v. Ewing, id. 40 ; Kimball v. Blaisdell, 5 N. H. 533 ; Everts v. Brown, 1 D. Chip. (Verm.) 99; and see these cases considered infra, Ch. XI. 3 Claunch v. Allen, 12 Ala. 163; Trull v. Eastman, supra; Bostwick v. Williams, 36 111. 70 ; Newcomb v. Presbrey, 8 Met. (Mass.) 406, where Wilde, J., in deliv- ering the opinion of the court, said : "It is not stated in the report of the case that the deed to the demandant con- tained any covenant of warranty, and it has been argued by counsel on the as- sumption that it was a mere quitclaim deed ; but on looking into that deed we find that it contains an express covenant of warranty against all persons claiming from or under the said S. Presbrey. The words of the habendum are, 'to have and 150 to hold the afore-mentioned premises to the said Newcomb his heirs and assigns forever, so that neither I the said Pres- brey nor my heirs nor any other person or persons claiming from or under me shall or will by any way or means have, claim, or demand any right or title to the aforesaid premises.' That this clause in the deed amounts to a covenant of war- ranty, or of quiet enjoyment, against all persons claiming title under or from Pres- brey, cannot admit of a doubt. To consti- tute a covenant it is not necessary that the word 'covenant,' or any other particular word or words, should be made use of ; for any words in a deed, in what part soever found, from which the intent of the par- ties to enter into an engagement can be collected, are sufficient for that purpose." So where in Gibbs v. Thayer, 6 Cush. (Mass.) 32, the covenant of non-claim was limited to the grantor and his heirs, it was said : " This clause constitutes a covenant of warranty, to the extent of its import. It differs from a general warranty in this, that one is a warranty against any and all paramount titles, the other against the grantor himself, and all persons claiming under him." And in Lothrop v. Snell, 11 id. 453, and Porter v. Sul- livan, 7 Gray, (Mass.) 441, the same view was taken. 4 Pike v. Galvin, 29 Me. 187, overrul- ing Fairbanks v. W T illiamson and White v. Erskine, supra; and see the dissenting opinion of Mr. Justice Wells, in 30 id. 539. § 116.] THE COVENANT OF WARRANTY. [CHAP. VIII. would have rendered the decision one of great hardship, and it was held that the covenant of non-claim did not operate by way of estoppel or rebutter, and did not pass with the land to an as- signee, and the same doctrine has been since recognized and applied in the same State. 1 The doctrine upon which these de- cisions are said to rest will be considered in a subsequent part of this treatise. 2 § 116. It will be observed that the covenant of warranty is a literal translation of the ancient form of warranty, with merely the addition of words of covenant. Littleton tells us that al- though the words " warrant and forever defend " were those gen- erally inserted in a warranty, yet that the word " defend " added no additional force, as " it seemeth that it hath not the effect of warrantie, nor comprehendeth in it the cause of warrantie." 3 The form, however, " warrant and forever defend," seems to have come into general use, and it has descended to the present time. Apart from the word " warrant," the covenant would seem to be no more than an engagement that it should bar the covenantor and his heirs from ever claiming the estate, and that he and they should undertake to defend it when assailed by paramount title. 4 The latter was, indeed, one of the consequences of a warranty, and its effect in this respect has been continued, though with modifi- cations, down to this day. The ancient practice of vouching to warranty has already been referred to. By the common law there was a regular writ, a sum- moneas ad warrantizandum, " whereupon, if the sheriff returned that the voucher is summoned and he make default, then a magne cape ad valentiam is awarded ; " 5 and although these writs had 1 Partridge v. Patten, 33 Me. 4S3. In voucher was not admissible, the practice Cole v. Lee, 30 id. 396, 397, however, no was not unlike our own, for, says Mark- distinction was observed between the cove- ham, C. J., in Year Book 8 Edw. IV. 11, nants of non-claim and of warranty. " If I recover from my warrantor a judg- 2 Infra, Ch. XI. merit pro loco et tempore, and then am im- 3 Litt. § 733. Of this, Coke says, "It pleaded in an action in which I cannot appears that neither defendere nor acquie- vouch, as an assize or scire facias, it is tare doth create a warrantie, but warranli- competent for me to request him from zare only. And as Ego ct hmrcdes mei whom I have thus recovered to put in a warrantizabimus, etc., in Latin, do create plea for me, and thus give him notice of a warrantie, so ' I and my heirs shall war- the action that is pending, as otherwise I rant,' etc., in English, doth create a war- shall not be allowed to have execution on rantie also." Co. Litt. 3S2 b. my judgment ;" and see generally, as to 4 Stewart v. West, 14 Pa. 338. the common law warrant} 7 , Ch. I. 6 Co. Litt. 101. In actions where 151 117.] THE COVENANT OF WARRANTY. [CHAP. VIII. become obsolete in England more than two centuries before they were abolished by statute, yet upon general principles notice of an adverse proceeding is there considered obviously proper in all cases where one having the benefit of any covenant of indemnity seeks to fix the liability of the covenantor by the same suit which decides his own. 1 § 117. Partly upon this general principle, and partly in analogy to the practice under the old warranty, it has come to be well settled in most if not all of the United States, that in general, upon suit being brought upon a paramount claim against one who is entitled to the benefit of any of the covenants for title, and more particularly it would seem of the covenant of warranty, he can, by giving proper notice of the action to the party bound by the covenants and requiring him to defend it, relieve himself from the burden of being obliged afterward to prove, in the action on the covenants, the validity of the title of the adverse claimant ; 2 1 Duffield v. Scott, 3 Term, 376; Smith v. Corupton, 3 Barn. & Adolph. 189, 407 ; Rolph v. Crouch, L. R. 3 Ex. 44 ; Beck v. Barlow, 1 Allen, (N. B.) 465. Pomery v. Partington, 3 Term, 665, was an action upon ' ' a covenant warrant- ing title " in a lease. In a note to page 668, the reporter says, "A preliminary objection was taken, viz. that the defend- ants were estopped from insisting on the title of M. G., because he had notice of the ejectment brought against the plain- tiff, and neglected to defend his title ; but as the judgment of the court was founded on the principal question only, it is thought unnecessary to enter into this and other minute points, which were stated in the course of the argument." "When a person is responsible to an- other," said Bell, J., in Littleton v. Rich- ardson, 34 N. H. 187, "either by the operation of law or by express contract, and he is duly notified of the pendency of the suit, and requested to take upon him- self the defence of it, he is no longer re- garded as a stranger, because he has the right to appear and defend the action, and has the same means and advantages of controverting the claim as if he was the real and nominal party on the record. In every such case, if due notice is given to such person, the judgment, if obtained 152 without fraud or collusion, will be conclu- sive against him, whether he has appeared or not." Accord. Boston v. Worthington, 10 Gray, (Mass.) 498 ; Chamberlain v. Preble, 11 Allen, (Mass.) 373. 2 Graham v. Tankersley, 15 Ala. 634 ; Boyd v. Whitfield, 19 Ark. 469 ; Hinds v. Allen, 34 Conn. 195 ; Wimberly v. Col- lier, 32 Ga. 13 ; Morgan v. Muldoon, 82 Ind. 347 ; Bever v. North, 107 id. 544 ; Booker v. Bell, 3 Bibb, (Ky.) 173; Pre- wit v. Kenton, id. 282 ; Cox v. Strode, 4 id. 4 ; Jones v. Waggoner, 7 J. J. Marsh. (Ky.) 144 ; Williamson v. Williamson, 71 Me. 442 ; Hamilton v. Cutts, 4 Mass. 353; Merritt v. Morse, 108 id. 270 ; Mason v. Kellogg, 38 Mich. 132 ; Cummings v. Harrison, 57 Miss. 275 ; City of St. Louis v. Bissell, 46 Mo. 157 ; Morris v. Rowan, 2 HaiT. (N. J.) 307 ; Chapman v. Holmes, 5 Halst. (N. J.) 20; Cooper v. Watson, 10 Wend. (N. Y.) 205 ; Miner v. Clark, 15 id. 427 ; Kelly v. The Dutch Church, 2 Hill, (N. Y.) 105 ; Adams v. Conover, 22 Hun, (N. Y.) 424 (where parol evidence was admitted to show what in fact was litigated in the adverse suit) ; Dalton v. Bowker, 8 Nev. 190 ; King v. Kerr, 5 Ohio, 158 ; Smith v. Dixon, 27 id. 471 ; Swenk v. Stout, 2 Yeates, (Pa.) 470 ; Ben- der v. Fromberger, 4 Dallas, (Pa. ) 436 ; Leather v. Poulteny, 4 Binn. (Pa.) 356 ; § US.] THE COVENANT OP WARRANTY. [CHAP. VIII. nor, in the absence of fraud or collusion, will the covenantor, under such circumstances, be allowed, in the latter action, to prove that the recovery against his covenantee was not had under paramount title. 1 § 118. Cases, moreover, have at times been presented in which the covenantee, having in the first instance failed to acquire pos- session of the subject of the purchase, and having himself brought suit upon the title conveyed by his vendor, has notified the latter Collingwood v. Irwin, 3 Watts, (Pa.) 310; Ives v. Xiles, 5 id. 323 ; Paul v. Witman, 3 Watts & Serg. (Pa.) 409 ; Terry v. Dra- benstadt, 68 Pa. 400 ; Wilson v. Mc- Elwee, 1 Strob. (S. C.) 65; Davis v. Wilbourne, 1 Hill, (S. C.) 28 ; Middleton v. Thompson, 1 Spears, (S. C.) 67 ; Wil- liams v. Burg, 9 Lea, (Tenn. ) 455 ; Wil- liams v. Wetherbee, 2 Aik. (Verm.) 337 ; Park v. Bates, 12 Verm. 381 ; Pitkin v. Leavitt, 13 id. 279 ; Brown v. Taylor, id. 631 ; Turner V. Goodrich, 26 id. 708 ; Wendel v. North, 24 Wis. 223 ; Somers v. Schmidt, id. 419 ; Eaton v. Lyman, 24 id. 438 ; and see 2 American Leading Cases (5th ed. ), 419, note to United States v. Howell ; as also 2 Wait's Actions and Defences, 392. A covenantor has, how- ever, it seems, no right to insist on being placed on the record as a defendant in the suit brought upon the adverse title ; Linderman v. Berg, 12 Pa. 301 ; and the grantor is not bound to permit him to de- fend ; Boyce v. Edwards, 114 Mass. 373. In pleading, it is of course unnecessary to aver that the covenantor was notified to defend. Bever v. North, 107 Ind. 544. 1 McConnell v. Downs, 48 111. 271 ; Sisk v. Woodruff, 15 id. 15 ; unless, it may be, to show that the recovery was un- der title from the covenantee himself. In North Carolina alone (unless the de- cisions are based upon some local usage, for the common law has in none of our States been more clearly understood or expounded) does a contrary opinion seem to prevail. In Martin v. Cowles, 2 Dev. & Batt. 101, the court said: "The only question on this appeal is, whether, in an action brought by a vendee against his vendor for a breach of the covenant for quiet enjoyment, a recovery in ejectment by a third person against the vendee, effected with notice to the vendor of the pendency of the ejectment, is conclusive evidence of the title of the lessor of the plaintiff. We have no hesitation in an- swering this question in the negative. In our opinion, the record of the judgment is not only not conclusive evidence, but it is not any evidence of title against the ven- dor. It would be repugnant to principle to bind any one by a judgment in a suit, where, if an opposing judgment had been rendered, he could derive no benefit from it, to which suit he was not a party nor had it in his power to become a party, and where he could not challenge the inquest, nor examine witnesses, nor exercise any of the means provided by law for ascertain- ing the truth and asserting his right. In real actions, a warrantor might be made a party by voucher ; in ejectment, a land- lord may come in to defend the possession of his tenant ; but there is no provision in law by which a vendor can be brought in to vindicate the possession of his vendee. To a judgment against the vendee the ven- dor is a stranger, and therefore that judg- ment is, against him, evidence only of the fact of the judgment, and of the damages and costs recovered. Saunders v. Hamil- ton, 2 Hay. Rep. 282, Shober v. Robinson, 2 Murph. Rep. 33, and Williams v. Shaw, N. C. Term Rep. 197, all recognize this doctrine ; and whatever opinions may have once been entertained, we had thought that for many years back it had been perfectly settled." In the later case of Wilder v. Ireland, 8 Jones L. (N. C.) 88, this decision was recognized and ap- proved. In neither of these cases was the adverse title even, supposed to be derived from the covenantee himself. 153 § 119.] THE COVENANT OF WARRANTY. [CHAP. VIII. to appear and prosecute that suit, and in the event of his failure to do so has sought to make the judgment conclusive upon him. In a somewhat recent case in Tennessee the right of the cove- nantee thus to bind his covenantor was denied ; it was said that provision was made by law for making the covenantor the defend- ant in the adverse action, but that no precedent could be found in which the converse of the rule was applied in making the cove- nantor a plaintiff, and the question of title was therefore consid- ered still an open one in the action on the covenant. 1 But in Vermont the law has been differently decided, and it has been held, apparently with more reason, that upon a suit brought by the covenantee to recover the possession, a notice duly given by him to the covenantor would have the effect of making the result of that suit conclusive upon the latter ; 2 and in recent cases elsewhere the same view has been taken. 3 § 119. What, then, is a proper notice of the suit brought under the adverse title ? In Pennsylvania it has for many years been held that " to have the effect of depriving the warrantor of the right to show title, the notice should be unequivocal, certain, and explicit ; a knowl- edge of the action and a notice to attend the trial will not do, 1 Ferrellv. Alder, 8 Humph. (Term.) 44. takes part. The chance which the war- 2 In Park v. Bates, 12 Verm. 381, the rantor in the one case has of asserting his question was passed over without particu- title is as good as the chance which the Lar notice by the court ; but it was settled warrantor in the other case has of asserting in Pitkin v. Leavitt, 13 id. 379, and his title ; the purchaser who is prevented Bi own v. Taylor, id. 637. So, by the from ever getting the possession is at least Louisiana Code, " When the purchaser is as badly off as the purchaser who having himself obliged to commence judicial pro- got the possession is turned out of it ; a ceedings against a person disturbing his judgment against the purchaser when he possession, he ought to notify his vendor brings the ejectment and vouches his war- of the action which he is commencing, and rantor is as much evidence of an adverse the vendor, whether he undertake to con- title paramount to the warrantor's as is the duct the suit for him or not, is obliged to judgment when the ejectment is brought indemnify fully, in case of condemnation." against the purchaser, and he vouches the Art. 2495. warrantor. There is therefore no substan- 3 Gragg v. Richardson, 25 Ga. 570 ; tial difference between the ordinary case White v. Williams, 13 Tex. 258. "In the and the present case." The Revised Stat- ordinary case," said the court in Gragg v. utes of Texas (1879, p. 703. art, 4788) Richardson, "the purchaser after getting provide that when a party is sued for 1 1 session is turned out of it by a writ lands, the real owner or warrantor may against him, of which his warrantor has make himself or may be made a party notice ; in the present case, the purchaser defendant in the suit, and shall he entitled can never get possession, not even by the to make such defence as if he had been aid of a writ of which his warrantor has the original defendant in the action, notice, and in the prosecution of which he 154 § 119.] THE COVENANT OF WARRANTY. [CHAP. VIII. unless it is attended with express notice that he will be required to defend the title ; " 1 and the same view has been taken in recent cases elsewhere. 2 It has not been consistently settled whether the notice should be in writing or not. In a case in New York, decided in 1836, a written notice was held unnecessary. " A parol notice," the court said, " gives the information to the grantor quite as well as a written one, and as there is no technical rule requiring such a notice to be in writing, no writing is necessary." 3 From this, however, Bronson, J. dissented, saying, " This is not like a notice which will sometimes affect the title of a party by showing it tainted with fraud. In these cases, notice means only knowledge of a particular fact, . . . and in general it is a matter of no moment in what form the information was received, or from what source it was derived. But here the notice, if it is to have any effect, is in itself a legal proceeding. It advises the war- rantor that the title which he professed to grant is called in question." And after referring to the old practice of voucher by a writ of summons, he proceeded to say, " As in the one case, the right could only be asserted by means of a writ served by a public officer, he ought not, in the other, to be prejudiced by anything less definite and formal than a writing which will advise him of what has been done, and what he is required to do." In a late case in Mississippi, it was briefly held that the notice " need not be in writing or in any particular form." 4 In a case in Nebraska, 5 no opinion was expressed whether the notice should be in writing. But lately in Michigan, the remarks of Bronson, J. were cited with approbation, and it was distinctly held, both upon general analogies and upon that with regard to voucher in warranty, that the notice must be in writing. 6 And while on the one hand it 1 Paul v. Witman, 3 Watts & Serg. 410. 6 Mason v. Kellogg, 38 Mich. 132. In 2 Boyd v. Whitfield, 19 Ark. 470 ; the late case in Tennessee of Greenlaw v. Somers v. Schmidt, 24 Wis. 421 ; Collins Williams, 2 Lea, 533, the notice was v. Baker, 6 Mo. App. (Appendix), 588. evidently written, and the court held that 3 Miner v. Clark, 15 Wend. 427, not- although it should be distinct and un- withstanding it had been generally said equivocal, and require the covenantor to in Gilbert v. The Turnpike Company, 3 defend the suit (citing the text) yet that Johns. Cas. 108, and In re Cooper, 15 it need not be of record in any particular Johns. 533, "a notice in legal proceedings form of words. In Terry v. Drabenstadt, means a written notice." 68 Pa. 400, it is not distinctly said that 4 Cummings v. Harrison, 57 Miss. 275. the notice should be in writing, but, as in 5 Dalton v. Bowker, 8 Neb. 200. Paul v. Witman, siqjra, the ancient prac- 155 § H9.] THE COVENANT OP WARRANTY. [CHAP. VIII. would seem au extreme measure to cast upon the plaintiff the burden of proof merely because the notice given to the defendant, no matter how " unequivocal, certain, and explicit," and no mat- ter how clearly brought home to him, was not in writing, yet the more rigid ruling is not only supported by analogy to the former practice, but has the merit of being conducive to certainty in a proceeding whose effect is conclusive upon a question of title ; 1 and as it has been somewhat recently held in Vermont that in tice of vouching to warranty was referred to, and it was said, ' ' The substitution of the modern covenant for the ancient war- ranty ought not to change, and practically it has not changed, the rights and obliga- tions of the respective parties." 1 In Somers v. Schmidt, 24 Wis. 417, the covenantor had knowledge of the ad- verse suit, but not the express notice re- quired in Paul v. Witman, and the court said : "The language in that case (Paul v. Witman) is quoted with approbation by Mr. Rawle, and although his conclusion may not be that notice in writing is neces- sary in order to bind the warrantor by the judgment, yet it very clearly is that it should in all cases come from the warran- tee or party relying on the covenant, or be given under his direction or authority, and should be to the effect that the war- rantor is required to defend the title. In Miner v. Clark (15 Wend. 425) it was held by a majority of the court that a verbal notice of the suit to the grantor, with a request to him to attend to the defence, was sufficient. Such is undoubtedly the rule which has been held in all cases of this nature ; and we know of none where it has been decided that notice aliunde, or mere knowledge of the suit incidentally acquired through third persons, was suffi- cient, and the rule is a reasonable and just one. It requires no more of the warrantee or tenant in possession than he ought to be willing to perform if he desires to charge the warrantor with the effect of an estop- pel by judgment. It is in harmony with the principle on which such estoppels rest. Tin- warrantor, being notified of the suit, and having the defence tendered to him so far as it may be necessary for him to es- tablish his title, if he had one, becomes a quasi party to the suit, has his day in 156 court, and ought to be concluded by the judgment. But without such notice and a request to defend, he has no such oppor- tunity, and ought not to be estopped. And when we consider this principle upon which the judgment is held conclusive against the warrantor, and the rule which almost universally prevails in judicial pro- ceedings, that notices must be in writing, it would seem that Judge Bronson was not so very far wrong in Miner v. Clark, when he insisted that this also should be writ- ten. And especially would this seem proper where it is held, as it has been in some of the States, that notice to the war- rantor in his lifetime is sufficient to bind his legal representatives after his decease, without the giving of further or other no- tice to such representatives. This was so held in Brown v. Taylor, 13 Verm. 631 ; but the notice there was in writing. But as it appears to be settled that vei-bal no- tice is sufficient, we are not disposed to part from that rule, though we might wish, for the sake of greater convenience and certainty, that it had been otherwise established. If, on the other hand, upon mere knowledge of the suit, however ac- quired, the warrantor would be authorized to come in and assume to conduct the de- fence so far as the proof of his own title was concerned, there might be some rea- son for holding him bound by such knowl- edge. But without the assent of the defendant in the suit he has no such au- thority. It is res inter alios acta, and if he should apply to the court for permis- sion to defend, the defendant not having voluntarily offered it, the answer would be that he had no occasion to do so, since his rights could not be affected by the judgment." § 120.] THE COVENANT OF WARRANTY. [CHAP. VIII. case of the death of the covenantor no further notice need be given to his representatives, 1 some hardship might ensue if a ver- bal notice were suffered to bind the former in the first instance, as such a message resting in parol may leave no trace behind it, while if written something might still be in existence to warn or notify them. 2 Practically, the question need not be embarrassing, for if the plaintiff have taken the precaution of being prepared with proof of the paramount title, he can afford the rejection by the court of proof of his unwritten notice. Like the whole of this matter of notice, it is simply a question of saving trouble. § 120. To some extent the question of notice is matter for the jury. Although it is the province of the court to determine what is and what is not a proper and sufficient notice as to time 3 and 1 Brown v. Taylor, 13 Verm. 631. "We are of opinion," said the court, " that the plaintiffs, having commenced an action of ejectment against a person in possession of the lands deeded and war- ranted to them by McDaniel, and having given notice thereof to McDaniel in his lifetime, were not required to do anything further in order eventually to charge him or his legal representatives with the con- sequences of a failure to establish a title in them to the lands conveyed. On serv- ing that notice, it became the duty of McDaniel to make proof of his title in that action, and this duty devolved upon his legal representatives without any fur- ther notice from the plaintiff." In this case, however, not only was the notice written, but the covenantor had appeared by counsel in the cause. 2 In Chamberlain v. Preble, 11 Allen, (Mass.) 373, it was said, "The strict for- malities required in the writ of warran- tia chartce and voucher, as used in the ancient common law warranty, are not re- quired to render the judgment conclusive in an action upon the modern covenant of warranty. The question in these cases usually is whether the defendant has had reasonable notice of the suit, and an op- portunity to defend it. If he has, he is bound by the proceedings. It is not ne- cessary that the notice should appear of record ; and no particular form of words is necessary. In some cases a verbal no- tice has been held sufficient ; in others the presence of the defendant and his participation in the defence have been enough to render the judgment conclu- sive. In this case, B. (the original cov- enantee and the grantor of the plaintiff), having assumed the defence and employed counsel, was acting with the consent and at the request of the present plaintiff, C, and it is perhaps a sufficient answer to the defendant's objection, that, while that relation existed, B. is to be regarded as having been the attorney and agent of C. to do all that properly pertained to the defence of that suit. By assuming the defence, B. became privy, if not a party, to that judgment, and pending the suit a notice from him to the defendant, it seems to us, was quite as proper and effectual as if given in the name of C. Under such a notice, with an opportunity to apjiear and defend, he cannot be deemed a stranger to these proceedings. Miner v. Clark, 15 Wend. 427." 8 The judgment would not be conclu- sive upon the party bound by the covenant, if the notice were not given in reasonable time ; Somers v. Schmidt, 24 Wis. 421, supra, p. 156, n. 1 ; nor unless the Lit- ter were allowed to have the benefit of all defences to the action which his covenan- tee might have made, including, it has been held, the right to a new trial upon 157 § 120.] THE COVENANT OF WAREANTY. [chap. vra. certainty, yet the fact of its reception seems to be within the province of the jury, 1 except in the single case where the party payment of costs ; Eaton v. Lyman, 26 id. 62. This case was much litigated ; Eaton v. Lyman, 24 id. 438 ; 26 id. 62 ; 28 id. 324. In the last of these cases the mooted question as to notice was not brought up by the record, and the judgment was re- versed on a question of damages. The following remarks in Davis v. Wilbourne, 1 Hill, (S. C.) 28, as to the local rules on this subject in South Carolina, were ap- provingly quoted in Middleton v. Thomp- son, 1 Spears, (S. C.) 69: "Notice in cases within the summary jurisdiction should be given at or before the return of the process — in cases within the gen- eral jurisdiction, notice at any time before the expiration of the rule to plead. The object is to enable the warrantor to come in and defend his title. He ought, there- fore, to have reasonable time to prepare for it, and the time which the law allows to a defendant furnishes perhaps the safest rule. In the first class of cases, however, the process might be served on the last hour of the last day before the return, so as to render the service of the notice imprac- ticable before the return. In these cases notice within a reasonable time afterward would be all that could be expected. So where the warrantee has entered an ap- pearance, and put in his plea to the merits, I should think that notice, even after the continuance, if the warrantor had time to prepare evidence for the trial, would be sufficient." 1 Such at least was the determination in Collingwood v. Irwin, 3 Watts, (Pa.) 310, where the former had conveyed to the latter with covenant of warranty, and the latter had been dispossessed, under a judgment in ejectment obtained against him by one Robinson. " The third prop- osition," said Kennedy, J., who delivered the opinion of the court, " offered to be proved was that the title of Irwin to the land under the deed of conveyance, made to him by the plaintiff in error, was better than that of Robinson's, under which he was evicted from the land. The testimony was clearly admissible ; for the plaintiff in error was no party on the record to the 158 judgment in ejectment, under which Irwin was turned out of possession of the land. The judgment in ejectment was therefore only prima facie evidence, as against the plaintiff in error, of Robinson's title to the land being better than that of Irwin's ; but it is alleged that the plaintiff in error had notice of the commencement and pendency of the action of ejectment, and is therefore concluded by the judgment rendered in it in favor of Robinson's title. Supposing this to be so, how does it ap- pear that he had such notice ? Certainly not by any exhibition of the record of the action of ejectment, and the judgment given in it ; because, as already observed, he is not a party on the record of it ; neither does it appear by any admission of his, placed upon the record of this suit. Whether he had such notice or not was then a matter in pais, and became a ques- tion of fact, to be decided by the jury, and not by the court ; but the court, by reject- ing the evidence on this ground, must ne- cessarily have decided on the fact that the plaintiff in error had such notice. Under this point of view, I apprehend the court erred ; for even in case evidence of a regu- lar notice from Irwin to Collingwood of the action of ejectment being brought against him, with a request to appear and defend against it, had been given by Irwin, still as long as such notice and request were not admitted by Collingwood, it was the duty of the court below to have admitted the evidence in regard to the title to the land, and afterward to have directed the jury that if, from the evidence, they believed that Collingwood was notified by Irwin or his attorney of the action of the ejectment being brought, and was requested likewise to appear and defend against it, they were to consider him bound and concluded by the judgment rendered in it ; and whether Irwin had a better title to the land than Robinson or not was a question which they could not decide according to any opinion of their own, which they might form by an examination of their respect- ive titles, but were bound to decide it according to the judgment given upon it § 121.] THE COVENANT OF WARRANTY. [CHAP. VIII. bound by the covenant is made a party to or has placed himself upon the record of the adverse suit. Indeed, unless the party bound by the covenant is so notified that he becomes, either actu- ally or constructively, the party to the suit by which the land is sought to be recovered from the covenantee, there is no room for the application of the rule that the judgment of a court of com- petent jurisdiction cannot be inquired into collaterally ; for the exception is as well settled as the rule itself, that the rule applies only to those who are said to be parties or privies to the action. Where the covenantor is properly notified, he becomes the latter, if not the former. 1 Where he is not thus notified, the rule loses its application. § 121. But the mere fact of making a notice of an adverse suit conclusive upon a covenantor in a subsequent action against him might, in many cases, work injustice. Evidence of the title under which the recovery was had might not, and in most cases prob- ably would not appear upon the record, and yet that title might in the action of ejectment." As, there- fore, it did not appear that the notice in this case was as unequivocal, certain, and explicit as it was afterwards said in Paul v. Witman, 3 Watts & Serg. (Pa.) 407, that a notice ought to be, but was in some degree calculated to mislead, it was held that the question of title was fairly open to be decided according to the whole evi- dence which might have been given at the trial by both parties. 1 Paul v. Witman, 3 Watts & Serg. ( Pa. ) 407. A good illustration of the text will be found in Chamberlain v. Preble, 11 Allen, (Mass.) 370, already cited supra, p. 157, n. 2. The land in question had been conveyed by Preble, the defendant, to Baldwin, with a covenant of warranty, and by Baldwin to Chamberlain, the plaintiff. Comer, who had been an alien, claimed the land by title paramount as tenant by the curtesy, and on the trial (in which Preble, the covenantor took no part) the case was decided in Comer's favor (Coiner v. Chamberlain, 6 Allen, 166), upon an agreed state of facts, in which the true date of Comer's naturali- zation was innocently misstated. The defendant, Preble, contended that as Co- mer's wife had conveyed the land before the true date of her husband's naturali- zation he could not be tenant by the curtesy and therefore could not have re- covered, and so the plaintiff virtually ad- mitted a fact which did not exist and was material in the case. But the court, premising that if the plaintiff had with- out suit acknowledged the title of Comer, and paid the amount required to extin- guish it, he would have done so at his peril and could not now prevail against the defendant without proving the para- mount title of Comer, held that as Preble, though notified to defend the original suit, had paid no attention to the notice, but had permitted judgment to be recovered for want of evidence within his own knowl- edge by which the misstatement of facts might have been corrected, he could not afterward, as a defence to the suit at bar, allege the misstatement — made as it was without fraud or collusion and equivalent to an agreement of counsel upon a fact at a trial — as ground for impeaching the judgment. And the court observed that according to Jackson v. Marsh, 5 Wend. (N. Y.) 44, even judgment by default against a covenantee who has notified his covenantor to defend seems to be con- clusive. 159 § 122.] THE COVENANT OP WARRANTY. [CHAP. VIII. be one derived from the covenantee himself subsequent to the purchase. To exclude evidence of this, notwithstanding a notice, would be obviously improper. 1 The only question which there- fore arises is as to the burden of proof. On whom is this to be thrown, when the record does not on its face set forth the title ? § 122. So far as the plaintiff in his action on the covenant must, notwithstanding a notice given by him, affirmatively show by evidence dehors the record that the recovery against him was under a title not derived from himself, the question admits of easy solution. It has been seen that in a declaration for a breach of the covenant for quiet enjoyment it is necessary to allege not merely that the eviction was made under paramount title, but that such title was " existing before and at the time of the conveyance to the plaintiff," as the eviction might indeed be under a para- mount title, but one which had been derived from the plaintiff himself, for which of course his covenantor would not be responsi- ble. 2 The same doctrine may be applied as to notice. Beyond this point, it does not seem necessary for the plaintiff to go. Where he has given a sufficient notice, it is believed to be enough if he show that the title under which the adverse judg- ment was obtained, was not one derived subsequent to the exe- cution of the deed to himself. 3 1 Booker v. Bell, 3 Bibb, (Ky.) 175 ; appear, but they must at least have fur- Swazey v. Brooks, 30 id. 692 ; Wilson v. nished him with the means of setting up McElwee, 1 Strob. (S. C. ) 66 ; Pitkin v. their title, for it was given in evidence on Leavitt, 13 Verm. 384; Adams v. Cono- the trial. And this ease is, I think, plainly ver, 22 Hun, (N. Y.) 424. distinguishable from those to which we 2 See infra,!}. 167. have been referred in relation to the effect 3 Phelps v. Sawyer, 1 Aik. (Verm.) of notice, for the reason that the defend- 157 ; Booker v. Bell, 3 Bibb, (Ky.) 175 ; ant's title was not only in evidence in the Swenk v. Stout, 2 Yeates, (Pa.) 47.0, former suits, but it was virtually admitted though judgment was in this case given to be a good title. The plaintiffs in those for the plaintiff, on the ground that all actions did not recover on the ground that the facts averred in the declaration must, their right was superior to that of the on demurrer, be taken as true. Thus in Dutch Church, but on the ground that Kelly v. Dutch Church, 2 Hill, (N. Y.) the defendant in those suits was precluded 113, Bronson, J., said: "But it is said by the acts and declarations of his imme- that as the defendants had notice, and were diate grantors from sheltering himself un- requested to defend the ejectment suits, der the good title of the church. If the they are now estopped from setting up defendants, on receiving notice of a suit their title, and that question remains to be upon a title apparently superior to theirs, considered. Whether the defendants took had neglected to appear and defend, and part and aided the plaintiff in the defence their title had not been given in evidence, of the suits brought against him does not or if, when in evidence, it had been ad- 160 123.] THE COVENANT OF WARRANTY. [CHAP. VIII. § 123. The next question is as to the effect of a judgment where there has been no notice to the party bound by the cove- nant of the suit upon which that judgment is founded. It seems to have been thought on the one hand, that on the presumption of omnia rite acta the record of the adverse suit is of itself prima facie evidence that the title on which the judgment therein is based is a paramount one, it being, however, perfectly competent for the defendant to inquire into the merits of that judgment. 1 But the weight of authority inclines to the position that although the record of the adverse proceeding may be evidence of eviction? judged defective, they would probably be estopped from setting it up in answer to an action on the covenants. But that is not this case. There is a short and I think conclusive view of this question. The plaintiff had necessarily averred that he was evicted by persons having a title paramount to that of the defendants. Upon that averment issue has been joined. The plaintiff holds the affirmative, and the burden of proof lies upon him. He has not only failed to prove the averment true, but in attempting to do so he has proved it false. It was not enough for the plaintiff to show that he gave the defend- ants notice of the suits brought against him, for the obvious reason that the claim- ants may have recovered on a right or title subordinate to that of the defendants. It was necessary, therefore, for the plaintiff to go further, and show on what ground the claimants succeeded. He did so, and the evidence has proved fatal to his cause." The decision in Buckels v. Mouzon, 1 Strob. (S. C.) 448, proceeded in effect upon the same grounds. It has, however, been decided that when judgment has been once recovered against the covenantor, equity will not enjoin that judgment on the ground of the eviction not having been by title paramount, that being a fact exclusively cognizable by the com- mon law courts. Yelton v. Hawkins, 2 J. J. Marsh. (Ky.) 1. There is indeed a suggestion toward the latter part of the decision, that "the utmost the Chancellor could have done was to have decreed a new trial, on the establishment of facts sufficient for that purpose," but this, it is conceived, must not be understood as weakening the point cited in the text as actually decided, as the Chancellor had enjoined the judgment, which decree the Court of Appeals reversed, and the in- junction could scarcely have proceeded on the ground alleged in the bill, that the trial came on unexpectedly to the cove- nantor, his counsel having assured him that it could not be reached on that day. 1 Collingwood v. Irwin, 3 Watts, (Pa.) 310, supra, p. 158, n. 1 ; Paul v. Witman, 3 Watts & Serg. (Pa.) 407. " If no such notice," said Williams, C. J., in Pitkin v. Leavitt, 13 Verm. 384, "be given of the pendency of the action of ejeetment, the recovery may be evidence of an eviction, but according to the decision in Williams v. Wetherbee, 2 Aik. (Verm. ) 329, it must be accompanied with other evidence that it was not on the strength of an older and better title. Possibly it would have been better in that case to have considered the record as priina facie evidence of all the material allegations, turning the burden of proof on the party who was bound to make a good title, and who was supposed to know what title he had when he gave the deed." And such indeed was the de- cision in the recent cases of Simpson v. Belwin, 37 Tex. 675, and Taylor v. Stew- art, 54 Ga. 81. 2 It is presumed that the record would or would not be evidence of eviction, ac- cording as there did or did not appear upon its face evidence of the execution of a writ of possession, as in Fields v. Hunter, 8 Mo. 128 ; Sisk v. Woodruff, 15 111. 15 ; unless, indeed, the record of the judgment would, according to local decision, be it- self deemed sufficient evidence, in most 11 161 § 123.] THE COVENANT OF WARRANTY. [CHAP. VIII. yet that is not even prima facie evidence that sucn eviction was under title paramount, as against one who has been neither a party nor a privy to the proceeding. 1 cases, of an eviction, as seems to have beeu thought in Kentucky, in Booker v. Bell, 3 Bibb, 175 ; Hanson v. Buckner, 4 Dana, 254; (Davis v. Logan, 5 B. Mon. 341, was in equity, and there was a gen- eral adjustment of title and damages ;) and in Rhode v. Green, 26 Ind. 83. But such a course of decision has been fre- quently denied by cases which hold that a judgment itself, unaccompanied by evi- dence of an actual or constructive change of possession, is no evidence of an evic- tion. McDowell v. Hunter, Dud. (Ga. ) 4 ; Webb v. Alexander, 7 Wend. (N. Y.) 2S6 ; Paul v. Witman, 3 Watts & Serg. (Pa.) 407 ; Feriss v. Harshea, Mart. & Yerg. (Tenn.) 55 : Hoy v. Taliaferro, 8 Sm. & Marsh. (Miss.) 741 ; Dennis v. Heath, 11 id. 218 ; Miller v. Avery, 2 Barb. Ch. (N. Y.) 582. 1 Graham v. Tankersley, 15 Ala. 645 (see also King v. Norman, 4 Com. Bench, 883 ; note to U. States v. Howell, 2 Amer. Lead. Cases, 419) ; Sisk v. Woodruff, 15 111. 15 ; Rhode v. Green, 26 Ind. 83 ; Walton v. Carr, 67 Ind. 164 ; Clements v. Collins, 59 Ga. 124 ; Booker v. Bell, 3 Bibb, (Ky.) 175 ; Prewit v. Kenton, id. 282 ; Devour v. Johnson, id. 410 ; Cox v. Strode, 4 id. 4 ; Hanson v. Buckner, 4 Dana, (K} r . ) 254 ; Ryerson v. Chap- man, 66 Me. 557 ; Fields v. Hunter, 8 Mo. 128 ; Wilder v. Ireland, 8 Jones L. (N. C.) 87; Stevens v. Jack, 3 Yerg. (Tenn.) 403. In Somerville v. Hamilton, 4 Wheat. (S. C. U. S.) 230, the question was left undecided, the court being divided in opinion. In Sisk v. Woodruff, supra, the point was carefully considered. "On whom," said Treat, C. J., who delivered the opinion, "does the law cast the bur- den of proof, where the warrantor had no notice of the pendency of the action of ejectment ? Some, courts hold that the record furnishes prima facie evidence of an eviction under valid title, and thereby compel the warrantor to prove affirma- tively that he has not broken his covenant. . . . Other courts require the plaintiff 162 to prove by evidence dehors the record that the judgment was founded upon an adverse and superior title. . . . The weight of authority in this country seems to favor this conclusion. We regard it as much the best rule. It is a fandliar principle of law, that a man shall not be bound by a judgment pronounced in a proceeding to which he is not a party, actually or con- structively. He should be allowed to appear in the case, and adduce evidence in support of his rights, before he is con- cluded by the judgment. If a warrantor has no notice of the action against his grantee, and no opportunity of showing therein that he transferred a good title, he cannot in any sense be considered a party to the action, and therefore ought not to be bound by any adjudication of the ques- tion of title. But if he has notice, he may become a party to the suit, and it is his own fault if his title is not fully pre- sented and investigated. He then has an opportunity of sustaining the title he has warranted, and defeating a recovery by the plaintiff in ejectment. If he fails to do this successfully, he is concluded from afterward asserting the superiority of that title, and compelled to refund the pur- chase money, with interest. By giving the warrantor notice, the defendant in ejectment may relieve himself from the burden of afterward proving the validity of the title under which he is evicted. But if he neglects to give the notice, he must come prepared to prove on the trial of the action of covenant that he was evicted by force of an adverse and superior title ; in other words, he must show that the warrantor, by appearing and defending the action of ejectment, could not have prevented a recovery. This rule imposes no hardship upon a party. The giving of notice subjects him to but little incon- venience. It by no means follows that a judgment in ejectment against a grantee is founded upon the invalidity of the title derived from the grantor. It may be ob- tained by collusion, by a failure of the 124.] THE COVENANT OF WARRANTY. [CHAP. VIII. § 124. But however prudent it may be for a purchaser, when sued under an adverse title, to give notice to the party bound by the covenant and require him to defend the suit, it is not neces- sary to his recovery in the action on the covenant that such notice be given. 1 This was otherwise at the common law in case of warranty. Although it was not every real action in which voucher was admissible, 2 yet if a warrantee were impleaded in any action in which it was admissible, it became his duty to vouch his grantor to warranty ; " and if he will not vouch him, he shall not afterwards have a writ of warrantia chartaz" 3 And although under the modern covenants notice seems not necessary to be given, yet its advantage is simply to enable the covenantee defendant to make proof of the title under which he entered, or upon a conveyance from him, or under a tax title originating in his own default. There is no good reason for requiring a warrantor to show in the first instance that his covenant has not been broken. In this case Sisk had no notice of the pendency of the action of ejectment ; and the record of the pro- ceedings had therein was only evidence of the eviction of Woodruff. It was in- cumbent on the latter to prove in addi- tion that the eviction was under title paramount." 1 King v. Kerr, 5 Ohio, 158 ; Rhode v. Green, 26 Ind. 83 ; Duffield v. Scott, 3 Term, 376 ; Smith v. Compton, 3 Barn. & Ad. 408 ; Claycomb v. Hunger, 51 111. 378. Sugden says positively, "A pur- chaser is not bound to give notice of an adverse suit to the covenantor." Sugd. on Vend. (14th ed.) p. 612. So by the Scotch law, " Regularly, the disponee, when the eviction is threatened, ought to intimate his distress to the disponer, that he may defend the right granted by him- self ; but though such intimation should not be made, the disponee does not lose his right of recourse, unless it should ap- pear that in the process of eviction he has omitted a relevant defence, or subjected himself to an incompetent means of proof." 1 Erskine's Institutes, 132. - Supra, § 11. 8 Fitz. Nat. Brev. 134 ; Co. Litt. 101 1 ; Y. B. 8 Edw. IV. 11, per Markham, C. J. So by the Spanish law, a vendor if not " cited to warranty " is not liable at all, and the vendee loses all recourse to him. By the former Code of Louisiana, ' ' the purchaser threatened with eviction who wishes to preserve his right of warranty against the vendor should notify the latter, in time, of the interference which he has experienced. This notification is usually given by calling in the vendor to defend the action which has been instituted against the purchaser. In the absence of this notification, or if it has not been made in due time, that is, in time for the ven- dor to defend himself, the warranty is lost ; provided, however, that the vendor shall show that he possessed proofs which would have occasioned the rejection of the de- mand, and which have not been employed because he was not summoned in time." Art. 2493, 2494. By the revised Code of Practice of 1875, " The defendant, though he has not called his warrantor to defend the suit brought against him, does not lose on that account his action in war- ranty, unless the warrantor proves that he had means for defeating the action, which were not used owing to the defendant having failed to call him in warranty or having neglected to apprise him of the suit having been brought." Art. 388. The provisions as to "Demands in War- ranty " are scarcely less minute and com- plex than those under the old common law. Art. 380 to 388 ; amended as to Art. 385, in Rev. St. of 1S76, § 3911. 163 § 125.] THE COVENANT OF WARRANTY. [CHAP. VIII. to recover on less testimony, since he is then not obliged to show under what title the recovery was had, except that it was not a title derived from himself since his purchase. § 125. In reviewing then what has been said on the subject of notice to the covenantor of the adverse proceedings, the following points appear to be settled by the weight of authority : — First. The notice must be distinct and unequivocal, and ex- pressly require the party bound by the covenant to appear and defend the adverse suit. Secondly. If such notice appear upon the record of that suit or if the covenantor be made a party to it, the court will, in the action on the covenant, be authorized to instruct the jury that the recovery is conclusive upon and binds the defendant in that action. Thirdly. If the notice do not thus appear on the record, the question of conclusiveness of the judgment will depend upon the belief of the jury as to the reception of the notice. Fourthly. If the record of the adverse suit does not exhibit on its face the title under which the recovery was had, the plaintiff in the action on the covenant must, notwithstanding proper notice has been given, prove that such title did not accrue subsequently to the deed to himself. Fifthly. If no notice has been given, the record of such ad- verse suit is not even prima facie evidence that the title was a paramount one, though it may under some circumstances be evidence of eviction ; and, Sixthly. It is not indispensable to the recovery on the cove- nant that notice of the adverse suit shall have been in any way given. 1 1 Judge James 0. Pierce, in an article The reasons given in support of it are, entitled "A Study in the Law pertaining briefly : first, the right to give such a to Covenants of Warranty," 6 Southern notice arises only when a suit is brought; Law Review, 719, discusses the question secondly, the notice takes the place of the whether notice given to a remote war- ancient summoneas ad warrantizandum, rantor by his immediate vendee of the which was process to bring the warrantor pendency of a suit in which a paramount into court to defend his title, and it would title i asserted, operates to the benefit of be contrary to all analogies to give to the the viiil'- in possession. He concludes adjudicnti on any effect except as between that it does not, and that the right to the parties ; thirdly, the notice when given claim the benefit of the notice is personal does not confer a new right of action, but to him who gives it. For this position, merely furnishes the covenantee with a however, no direct authorities are cited, new means of evidence for a future action ; 164 § 127.] THE COVENANT OP WARRANTY. [CHAP. VIII. The effect of notice to the covenantor as to his liability for costs and expenses incurred by the covenantee, in defending against the paramount title will t>e considered in a subsequent chapter. 1 § 126. The form of the covenant of warranty as used in Amer- ica from the earliest settlement of the colonies to the present day has already been given. 2 Like all the other covenants for title, it is either general, that is, extending to the claims of all persons whomsoever, or limited, that is, restricted to the acts of the grantor and those claiming under him. 3 But even when the covenant is general, when it purports to assure the purchaser from disturbance on the part of the grantor or any person or persons whomsoever, yet the generality of this assurance is subject to certain well-settled qualifications. And although in all the English and in many of the American cases upon this subject the covenant was that for quiet enjoyment and not the covenant for warranty, yet with the exceptions to be presently mentioned the line of decision is the same with respect to both. § 127. And first, it is well settled that such a covenant is not broken by tortious disturbances. It is true that in a few old cases it seems to have been thought that a covenant thus framed extended to all interruptions and disturbances whatsoever, whether lawful or tortious ; 4 and although still older authorities were directly in opposition to such a doctrine, 5 the law seems not to have been settled until the case of Hayes v. Bickerstaff. 6 There, the defendant, being possessed of a long term of years in certain woodlands, leased them to the plaintiff for a portion of the term, with a covenant that the latter should quietly enjoy and fourthly, the evidence so created oper- otherwise if it be by elder title," citing ates by way of estoppel, applies only to Y. B. 26 Hen. VIII. 3, a miseitation for parties and privies, and as estoppels must 26 Hen. VIII. 11. So in Y. B. 22 Hen. be mutual has no effect whatever except VI. (Pasch.) 26, "If a lease be made for between the warrantor and the covenantee a term of years by deed, so that the les- who gives the notice. sor is chargeable by writ of covenant, if 1 Ch. IX. a stranger who has no right oust the 2 Supra, p. 29. termor, yet he shall not have a writ of 3 Supra, p. 35 el seq. covenant against his lessor. But if he to 4 See Mountford v. Catesby, 3 Dyer, whom the right belongs oust the termor, 328, and cases there referred to. then he shall have writ of covenant against 6 Brooke's Ab. Garranties, pi. 1. "If his lessor." one lease for years and covenant to war- 6 Vaughan, 118 ; s. c. but not s. p., 2 rant the land, and the lessee be ousted Mod. 34. by wrong, he shall not have covenant ; 165 § 127.] THE COVENANT OP WARRANTY. [CHAP. VIII. the same " without any impediment, disturbance, eviction, or interruption whatsoever from either the defendant, his executors, administrators, or assigns, or any other person." The defendant subsequently granted his reversion in the term, and the grantee, notwithstanding the plaintiff's attornment to him, entered upon the lands and deprived the latter of his possession. The plaintiff then brought this action on the above covenant ; but it was decided that the covenant, however generally expressed, must be under- stood as applying merely to the acts of those claiming by title ; because, first, the grantor does not expressly covenant against tor- tious acts of strangers ; secondly, it would be unreasonable that he should do so, as he could neither foresee nor prevent them ; thirdly, the law gives the covenantee a remedy against the wrong-doer ; fourthly, the covenantee might thus have a double remedy and satisfaction, one against his covenantor and the other against the wrong-doer; fifthly, it would enable him to injure the covenantor by colluding with a stranger to make a tortious disturbance ; and sixthly, because the express words of the covenant were that the covenantee should lawfully enjoy the premises without the let or hindrance of the covenantor or any other person. These unanswerable reasons have since been consistently acqui- esced in, and the case has long been recognized on both sides of the Atlantic as decisive authority. 1 i Tisdale v. Essex, Hobart, 34 ; Wot- N. Y. Sup. Ct. 416 ; Coddington v. Dun- ten v. Hele, 2 Saund. 178, n.\ Nokes v. Lam, 35 id. 412; Wilder v. Ireland, 8 James, Cro. Eliz. 675 ; Lewis v. Smith, 9 Jones L. (N. C.) 88; Green v. Watson, 2 Man. Gr. & S. 610; Hoppes v. Cheek, Ont. 627 (a case of a patent right) ; Brick 21 Ark. 585; Playter v. Cunningham, 21 v. Coster, 4 Watts & Serg. (Pa.) 499; Cal. 232 ; Branger v. Manciet, 30 id. 624 ; Spear v. Allison, 20 Pa. 200 ; Schuylkill Davis v. Smith, 5 Ga. 274; Beebe v. Swart- K. R. v. Schmoele, 57 id. 273 ; Moore v. wout, 3 Gilm. (111.) 180 (see a very elab- Weber, 71 id. 327; Rantin v. Robertson, orate argument of counsel and opinion 2 Strob. (S. C.) 366 ; Noonan v . Lee, 2 in that case as to the nature of the Black, (S. C. U. S.) 507; Gleason v. Smith, covenant for quiet enjoyment generally) ; 41 Verm. 293 ; Underwood v. Birchard, Avery v. Dougherty, 102 Ind. 443 ; Bart- 47 id. 305 ; Yancey v. Lewis, 4 Hen. & lett v. Farrington, 120 Mass. 284; Kim- Munf. (Va.) 395; Mclnnis v. Lyman, 61 ball v. Grand Lodge, 131 id. 59 ; Surget Wis. 191. In Meeks v. Bowerman, supra, v. Arighi, 11 Sm. & Marsh. (Miss.) 96 ; the tenant alleged that the covenant for Greenby v. Wilcocks, 2 Johns. (N. Y.) quiet enjoyment had been broken by 1 ; Folliard v. Wallace, id. 402; Kelly v. reason of the house demised having pre- Dutch Church, 2 Hill, (X. Y.) Ill; Gard- viously, with the landlord's assent, been ner v. Ketcltas, 3 id. 330 ; Meeks v. Bow- used as a brothel, and that he and his erman, 1 Daly, (X. Y. ) 100 ; Butterworth family had been so annoyed by lewd per- v. Volkening, 4 Thorn. & Cook, (N. Y. sons calling there that they could not S. C.) 650 ; Johnson v. Oppenheimer, 34 peaceably enjoy the premises and had 1G6 128.] THE COVENANT OP WARRANTY. [CHAP. VIII. § 128. The qualification, however, limiting the disturbances to those made under color of title as distinguished from tortious in- terruptions, has three equally well settled exceptions : — 1. The covenant extends to all acts of the covenantor himself, whether tortious or otherwise. 1 And it is obvious that the acts of the servants or agents of the covenantor are, if committed at his command, as much within the scope of the covenant as if they were his own acts. 2 It is said, however, that even the acts of the covenantor him- self must be done under assumption of right as distinguished from mere trespasses. 3 Thus it seems to have been thought that if a therefore been evicted therefrom, but it was held that this was no breach. " The acts of strangers not claiming under any title cannot in any sense be regarded as a breach of this covenant on the part of the landlord." So where a lessee finds the premises in possession of a former tenant whose term has expired, it is held that the covenant does not extend to compel the landlord to give possession ; the wrong- ful holding over of the former tenant is no breach. Gardner v. Keteltas, supra; Howard v. Doolittle, 3 Duer, (N. Y.) 464. And the law (as to tortious dis- turbances) applies equally whether the covenant is express or implied. Gardner v. Keteltas, supra; Gazzolo v. Chambers, 73 111. 75. 1 Cave v. Brookesby, W. Jones, 360 ; Andrews' case, Cro. Eliz. 214 ; Corus v. , id. 544; Crosse v. Young, 2 Show. 425 ; Lloyd v. Tomkies, 1 Term, 671 ; Wotten v. Hele, 2 Saund. 180, n.\ Sea- man & Browning's case, 1 Leon. 157 ; Le- vitzky v. Canning, 33 Cal. 308 ; O'Keefe v. Kennedy, 3 Cush. (Mass.) 325 ; Sedg- wick v. Hollenbeck, 7 Johns. (N. Y.) 376 ; Mayor of New York v. Mabie, 3 Kern. (N. Y.) 156. (In Crosse v. Young, Shower reports a long argument of his own on this point, "which 1 had prepared to urge, but was prevented by a ready judgment for the plaintiff by the whole court.") Thus in Seaman & Browning's case, sitpra, one Marshal sold land to the plaintiff with a covenant for quiet enjoyment ; the breach assigned was that Marshal entered and cut certain elm trees, and this was held to be a breach of the covenant. 2 Seaman & Browning's case, supra. In a case in Mississippi, Surget v. Arighi, 11 Sm. & Marsh. 96, the breach laid in an action on a covenant for quiet enjoyment brought by a lessee against his lessor was the destruction of the premises and expul- sion of the tenant by a mob, "moved by exasperation and excitement by them en- tertained towards the defendant." It was urged for the plaintiff that this was equiv- alent to an eviction by the lessor himself; but the court held that "it was not suffi- cient that the mob were induced to do the act, but that the lessor must do the act or excite others to do it, not indirectly but directly. He must be the agent who acts with a view to that particular result. This was the necessary consequence of the prin- ciples stated in the authorities in regard to covenants for quiet enjoyment. The language employed in the covenant in Dudley v. Folliott, 3 Term, 584, was even broader than in the present case ; and yet it was held only to be a covenant for quiet enjoyment. It was not sufficient that the mob were actuated by feelings of malice or revenge against the defendant." And un- less, therefore, it should appear that the acts of the mob were constructively those of the lessor himself, the case would fall within the rule that the covenant did not extend to the tortious acts of others. Jones v x Worley, 21 La. An. 404. 3 Crosse v. Young, 2 Show. 425 ; Lloyd v. Tomkies, 1 Term, 671 ; Wotten v. Hele, 2 Saund. 180, n. ; O'Keefe v. Ken- nedy, 3 Cush. (Mass.) 325 ; Sedgwick v. Hollenbeck, 7 Johns. (X. Y.) 376; Levy V. Bend, 1 E. D. Sm. (N. Y.j 169. 167 § 128.] THE COVENANT OF WARRANTY. [CHAP. VIII. landlord should enter upon the demised premises for the purpose of sporting, 1 the tenant could not maintain covenant for such an act, and in New York this was expressly decided where the landlord entered for the purpose of making repairs. 2 But where one sold a house with a covenant that the purchaser should enjoy it with- out the lawful let of the grantor, and the latter locked up a pew appertaining to the house, it was held that this was as strong an assertion of right as could well be imagined. 3 So where in New York, the corporation had leased a certain wharf, it was held that the entry upon the premises by the agents of the corporation and the assumption by them of the control of the berths and locations which ships were to occupy thereat was a breach of the implied covenant for quiet enjoyment in the lease — that if the character of the act were such as reasonably to show that the corporation acted under an assumption of title, the action could be sustained, 4 and the law has since been elsewhere held the same way. 6 1 Per Ashhurst, J., in Lloyd v. Tom- kies, 1 Term, 671, and per Lord Ellenbor- ough in Seddon v. Senate, 13 East, 72. 2 Doupetf.Genin, 1 Sweeny, (N. Y.) 30. 3 Lloyd v. Tomkies, supra. 4 Mayor of New York v. Mabie, 3 Kern. 151. The question whether the acts complained of as a disturbance of the rights of the lessee were done in the law- ful exercise of a power to regulate the dis- position of vessels in the public docks under any ordinances upon the subject did not arise upon the evidence in this case and was expressly reserved. " It was not intended in that case," it was after- wards said in Doupe v. Genin, supra, "to extend the force of the covenant be- yond a protection to the lessee against the unlawful entry of the lessor him- self, and it is clearly intimated that the entry must be under an assumption or claim of title to the premises. Other- wise it would be a mere trespass and not a breach of the covenant." The law upon this point is thus stated by Piatt : "In a case in Rolle's Abridgment (Davie v. Sacheverell, p. 429, pi. 7), it is laid down that a covenant by J. S. that his leasee shall enjoy the lands peaceably and quietly, without any lawful let, disturb- ance, ejectment, or molestation of the said J. S., is not broken by his entry on the 168 lessee as a mere trespasser and without any lawful title. Subsequent decisions, however, have taken a distinction between a tortious entry by a stranger and by the covenantor himself ; and it is now admit- ted law that although the covenant only stipulates for quiet enjoyment without the lawful interruption of the covenantor, his heirs or assigns, yet he cannot avail him- self of the subterfuge that his entry was unlawful, and he therefore a trespasser, to avoid the consequences of his own wrong ; for, as against the party himself, the court will not consider the word law- ful, nor drive the covenantee to an action of trespass, when by the general implied covenant in law the vendor had engaged not to annul his own deed, either by a rightful or an illegal entry." Piatt on Covenants, 318. 5 Sherman v. Williams, 113 Mass. 48L In the very recent case of Avery v. Dough- erty, 102 Ind. 443, the distinction was clearly stated that a mere fugitive trespass by the landlord will not constitute a breach of the implied covenant for quiet enjoy- ment, but that an entry by him under claim or assertion of right would be a breach. In Curtis v. Deering, 12 Me. 499, land had been conveyed in mortgage, with cove- nants for seisin and of warranty to the § 128.] THE COVENANT OP WARRANTY. [CHAP. VIII. 2. If the covenant be expressly against the acts of a 'particu- larly named person, it will not be restrained to his lawful acts, mortgagee, who neglected to record the mortgage until after the same premises had been conveyed in fee by the mortga- gor to a purchaser without notice, who by recording his deed took the title clear of the mortgage. In an action on the cove- nant of warranty brought against the mortgagor, it was urged that the covenant extended only to elder and better titles — to those then existing and not to those subsequently acquired. And such is un- doubtedly the law ; for in Grenclife v. W , Dyer, 42 b, "All the judges agreed that when a man bound himself and his heirs to warranty, they are not bound to warrant new titles of action accruing through the feoS'ee or any other after the warranty made, but only such titles as are in esse at the time of the warranty made." But the court held that a general covenant against all claims had been limited by construction of law to lawful claims, be- cause the law was a sufficient protection against wrong-doers, but all lawful claims except such as were derived from the plaintiff were within the terms and should be within the operation of the covenant ; and that there was no propriety in apply- ing the rule which requires proof of elder title to evictions founded upon the subse- quent irresistible acts of the covenantor. And in answer to the obvious objection that the defendant, being the owner of the equity of redemption and therefore having title to the land, had a right to convey, and in so doing had not broken his cove- nant, it was held that as against the mort- gagee a conveyance in fee, without any saving being made by his tenant at will, was a disseisin at the election of the former, and that his conveyance, against the mortgagee, was an unlawful act. Such a decision must, it is presumed, be supported by the peculiar effect given in that State to the subsequent convey- ance, for the result was to make the de- fendant liable for the plaintiffs neglect to record his mortgage. Apart from some local law, nothing is more common than a conveyance of what, technically called an equity of redemption, is at this day prac- tically the legal estate, and if such a con- veyance is made in good faith, to a pur- chaser without notice of the mortgage, and who takes clear of it because it has not been recorded, there would seem no principle on which a liability under the covenants for title could rest. This decision was, however, cited in Maeder v. City of Carondelet, 26 Mo. 114, where the facts were somewhat similar, but there was an express provision in the lease that nothing therein contained should be construed to imply a covenant for quiet enjoyment, and the court seem to have considered that had it not been for this provision the case would have been gov- erned by Curtis v. Deering. In Lukens v. Nicholson, 4 Philadelphia li. 22, it was held that the assignee of a rent reserved on a conveyance in fee, whose estate is de- feated by his own failure to put the deed of assignment on record and the subse- quent execution of a mortgage by the as- signor, could recover damages from the latter in an action on a covenant of special warranty, and the case of Curtis v. Deer- ing was approved. See the opinion of the court, infra, Ch. VIII. In the case in Ohio of Wade v. Com- stock, 11 Ohio, 71, the facts were the same as in Curtis v. Deering, except that the defendant had conveyed a tract of land in fee with a covenant of warranty to pur- chasers who had neglected to record their deed; the land was afterwards levied upon and sold as his property to a purchaser, who, recording his deed, took a valid title, and to whom the defendant subsequently executed a release. Upon these facts it was elaborately urged that the defendant was liable on his covenant of warranty, but the court held that although the de- fendant might doubtless be liable in some form of action, the remedy was not to be sought in an action on the covenant, and the decision in Curtis v. Deering, on which the plaintiff had strongly relied, was con- sidered to be not only unsupported by au- thority but directly contrary to it. The court referred also to a distinction noticed in several of the cases between such acts of the covenantor as were within the ex- press words of a covenant for quiet enjoy- 169 § 128.] THE COVENANT OF WARRANTY. [CHAP. VIII. since the covenantor is presumed to know the party against whose acts he covenants, and may therefore be reasonably expected to stipulate against all of them. 1 3. Where the plain intention of the covenant, manifested by express words, is to protect the covenantee against claims of every description, as where it is against all claiming or pretending to claim. 2 meat, and those which come within the general scope of a covenant of warranty, as to which see infra, § 131. And in a receut case in Pennsylvania (Scott v. Scott, 70 Pa. 244, Sharswood, J.), it was said, "No au- thority has been or can be cited to support the position that a deed or will subse- quently made by a grantor is itself a breach of the. covenant of warranty contained in his [prior] conveyance, more especially when such deed or will is a lawful act." An old case may be here noticed which at first sight seems to support the decision in Curtis v. Deering. In Sir Perall Bro- cas' case, cited Touchstone, 170, and un- reported elsewhere (see infra, Ch. X.), it is said, "If I bargain and sell land, by deed indented, to B., and before the deed is enrolled I grant the same land to C, and covenant that I am seised of a good estate of it in fee, and, after, the deed is enrolled ; in this case the covenant is broken ;" but it will be noted that the deed enrolled (under the statute of Enrol- ments, 27 Hen. VIII. c. 16, see 2 Black. Com. 338) was the deed to B., whose en- rolment (within the six months required by the act) caused the breach of the cove- nant contained in the deed to C, which is the only covenant referred to in the case. 1 Thus, in the old case of Foster v. Mapes, Cro. Eliz. 212, the defendant cove- nanted to save the plaintiffs harmless from one Blount, and the plaintiffs, in an ac- tion on this covenant, averred as a breach that " P>. had entered upon the premises and put them out." The breach was held to be well assigned, "for," said the court, " when the covenant is to save them harm- less against a person certain, he ought to defend him against the entry of that per- son, be it by droit or tort, for he is damni- fied if he be disturbed though by wrong." In Nash v. Palmer, 5 Maule & Selw. 374, Lord Ellenborough said: "The rule 170 has been correctly stated at the bar that where a man covenants to indemnify against all persons, this is but a covenant to indemnify against lawful title. And the reason is, as it regards such acts as may arise from rightful claim, a man may well be supposed to covenant against all the world; but it would be an extravagant extension of such a covenant if it were good against all the acts which the folly or malice of strangers might suggest, and therefore the law has properly restrained it within its reasonable import, that is to rightful title. It is, however, different where an individual is named, for there the covenantor is presumed to know the person against whose acts he is content to covenant, and may therefore reasonably be expected to stipulate against any dis- turbance from him, whether from lawful title or otherwise." And where, in a cove- nant for quiet enjoyment, an exception as to the acts of certain specified persons is introduced, the covenant will apply to the acts of all others not included in the exception ; as in Woodroff v. Greenwood, Cro. Eliz. 517, where a tenant in tail, with reversion to the Queen in fee, leased for twenty-one years, covenanting that the lessee should enjoy it against all persons without the interruption of any besides the Queen, her heirs and successors, eads- tcntibus regibus vel reginis Anglios, and the Queen granted the reversion to another, who upon the death of the tenant in tail without issue evicted the lessee, who brought covenant and obtained judgment, "for none are excepted besides the Queen and her successors, and not her patentee."' Perry v. Edwards, 1 Strange, 400 ; Fowle v. Welsh, 1 Bain. & Cress. 29 ; Patton v. Kennedy, 1 A. K. Marsh. (Ky.) 389; Pence v. Duval, 9 B. Mon. (Ky.) 49. 2 Chaplain v. Southgate, 10 Mod. 383. The defendant having leased a farm to the 129.] THE COVENANT OF WARRANTY. [CHAP. VIII. § 129. Secondly. Nor will a covenant against disturbances " by any persons whomsoever," extend to acts of sovereignty. 1. It will not extend to the exercise by the State of its right of eminent domain. Thus where in an early case in Massachusetts, a lease had been made with a covenant for quiet enjoyment, upon which the lessee, being evicted by the municipal corporation who opened a street through the demised premises, brought covenant, it was held that the action could not be maintained, as this was not such an inter- ruption as should properly come within the scope of the covenant. 1 And the same decision was afterwards made, with more elabora- tion, in a case in Pennsylvania ; 2 and the law may be considered as so settled there and elsewhere. 3 2. Nor to any other lawful acts of sovereignty. This has been shown in a somewhat recent curious class of cases in the United States, arising from the liberation of slaves under the Eman- cipation Proclamation of 1863, the first of which was presented in Missouri, where one having sold a slave with a covenant that she was a slave for life, it was held that the covenant was not broken by the emancipation, 4 and decisions to the same effect have been plaintiff and covenanted that he should quietly enjoy the closes therein contained against all claiming or pretending to claim any right in them, the breach assigned was " that one having or pretending to have a claim time out of mind did enter upon the said closes," which was held by the court to be sufficient, as " the words of the covenant did extend to all interruptions whatsoever, and so was the plain intent and meaning of the parties ; for if it was to extend to legal claims only then would the tenant be put under the hardship of trying the right for the land- lord ; which was the very thing the ten- ant plainly designed to prevent by this covenant." 1 Ellis v. Welch, 6 Mass. 246. 2 Frost v. Earnest, 4 Whart. (Pa.) 86. 3 Stevenson v. Loehr, 57 111. 509 ; Kuhn v. Freeman, 15 Kans. 426 ; Brimmer v. City of Boston, 102 Mass. 19 ; Boston Co. v. Munson, 117 id. 34; Cooper v. Bloodgood, 32 N. J. Eq. 209 (and see the reporter's note to that case) ; Folts v. Huntley, 7 Wend. (N. Y.) 210; Dobbins v. Brown, 12 Pa. 75 ; Bailey v. Miltenberger, 31 id. 37 ; Schuylkill R. R. Co. v. Schmoele, 57 id. 273 ; Dyer v. Wightman, 66 id. 427; Legal Tender Cases, 12 Wall. (S. C. U. S.) 549. 4 Phillips v. Evans, 38 Mo. 305. " When the vendor sold his slave," said Wagner, J., who delivered the opinion, " with a covenant that she was a slave for life, he intended nothing more than that the law at that time made her a slave for life. The covenant extended to all defects in the title and was intended to protect the purchaser against them. But it can- not be presumed that the sovereign act or authority of the government, by which all title or property in slaves was totally an- nihilated, was in the contemplation of the parties. The emancipation of the slaves by the sovereign act of the people was neither anticipated nor thought of when the slave was sold in this case. It was not in the minds of the parties nor em- braced within the purview of the warranty. In case of the sale and conveyance of real estate, when the vendor warrants the title 171 § 129.] THE COVENANT OF WARRANTY. [CHAP. VIII. made in all the Southern States in which the question has been presented, 1 and the Supreme Court of the United States has rec- ognized and affirmed their correctness. 2 3. And where the loss is consequent upon the exercise of the act of a sovereign de facto, it will be considered as not coming within the scope of the covenant for one of two reasons : either it is the lawful act of the sovereign, and therefore comes within the exception just noticed, or it is a mere tortious act, and there- fore comes within the general principle. 3 and covenants for peaceful and quiet en- joyment, should the property be swallowed up and destroyed by an earthquake, it will not be contended that destruction would work a breach of the covenant rendering the seller responsible. We are tumble to distinguish the case supposed from the one presented here at bar. The ordinance of emancipation caused a complete annihila- tion or destruction of all property in slaves. It could not be controlled by the parties nor was it contemplated by them ; and clearly the covenant to warrant and defend the title to the negro, and that she was a slave for life, cannot, by any just con- struction, be made to apply to such an occurrence." 1 Fitzpatrick v. Hearne, 44 Ala. 171 ; Haskill v. Sevier, 25 Ark. 152 ; Willis v. Haliburton, id. 173 ; Walker v. Gatlin, 12 Fla. 9 ; Hand v. Armstrong, 34 Ga. 232 ; Bass v. Ware, id. 3S6 ; Porter v. Ralston, 6 Bush, (Ky.) 665 ; Whitworth v. Carter, 43 Miss. 61 ; Mayfield v. Bar- nard, id. 270. The case of Steele v. Rich- ardson, 24 Ark. 365, was decided upon a different ground. 2 Osborn v. Nicholson, 13 Wall. (S. C. U. S. ) 655. " Emancipation and eminent domain," said Mr. Justice Swayne, who delivered the opinion of the court, " work the same result as regards the title and possession of the owner. Both are put an end to. Why should the seller be liable in one case and not in the other ? We can see no foundation, in reason or prin- ciple, for such a claim. ... All contracts are inherently subject to the paramount power of the sovereign, and the exercise of such power is never understood to in- volve their violation, and is not within 172 that provision of the national Constitution which forbids a State to pass laws im- pairing their obligation. The power acts upon the property which is the subject of the contract, and not upon the contract itself." 8 Thus in Dudley v. Folliott, 3 Term, 584, land had been conveyed by the de- fendant to the grantor of the plaintiff with covenants for seisin and of quiet en- joyment "against all and every person or persons whomsoever," and the plaintiff assigned as a breach that at the time of the conveyance by the defendant the land had been confiscated during the Revolu- tion by the State of New York. The plaintiff argued, first, that the defendant had no title to the premises, they having been lawfully confiscated by the State, whose independence as a part of the Union had subsequently been recognized ; and secondly, that (under the authority of Mouutford v. Catesby, supra, p. 165, n. 4) the covenant extended not only to acts done by persons having or claiming title, but to an eviction even by a wrongdoer ; but the court " having no doubt about the law as it respected the first question, and thinking it would lead to the discus- sion of improper topics, would not permit it to be argued. And as to the second question they thought it equally clear ; for even a general warranty, which is con- ceived in terms more general than the present covenant, has been restrained to lawful interruptions," and judgment was given for the defendant. So in Watkins v. De Lancey, 4 Doug. 354, where one in England sold certain real estate in New York, which he had inherited from his father, who was attainted and his property § 131.] THE COVENANT OP WARRANTY. [CHAP. VIII. § 130. Thirdly. At one time there seems to have been some doubt whether a disturbance or interruption interfering with the title and possession of the land by reason of a suit in equity came within the scope of a covenant for quiet enjoyment against dis- turbances generally. 1 This question is now well settled in the affirmative ; 2 but where the proceeding in equity interferes only with a particular mode of enjoyment of the land, or part of it, but not with the title or possession, it is not a breach. 3 § 131. Nothing is more generally or more truly said than that " An eviction is necessary to a breach of the covenants for quiet enjoyment and of warranty." The exceptions are either where the former covenant is so expressed as to have a wider scope than the latter, 4 or where some peculiar local construc- tion is given to these covenants, or one of them. 5 The question what is eviction will of course be considered irrespective of these exceptions. confiscated, Lord Mansfield held: "The defendant covenants that he is seised in fee of the lands in question by all the laws in being, but he does not covenant against a rebellion or a revolution by an armed force. There is no color for it." 1 Selby v. Chute, 1 Brownl. 23 ; see, however, the remark made in Hunt v. Danvers, T. Piaym. 371, as to the report of this case ; and in Winch's Entries, 118, will be found a declaration in which a disturbance by a chancery suit is as- signed for breach, and Winch was him- self one of the judges at the time when Selby v. Chute was decided. 2 Calthorp v. Heyton, 2 Mod. 54 ; Hunt v. Danvers, T. Eaym. 370 ; Trust Co. v. Covert, 30 U. Can. Q. B. 239 ; s. c. 39 id. 327. 8 Morgan v. Hunt, 2 Vent. 213 ; Den- nett v. Atherton, L. R. 7 Q. B. 326. Sug- den had remarked in a previous edition of his treatise, "It is customary to ex- pressly extend covenants for title to equi- table charges, disturbances," &c. ; and with like caution Mr. Preston had said that it was usual to insert the words "without any lawful let," &c. ; Shep. Touch. 166, Preston's ed. ; so as to preclude the pos- sibility of question as to the extent of the covenant. The law is now so well settled as to both these points that in modern conveyancing these precautions are not ob- served, and Sugden in his last edition says, "And a suit in equity by which a pur- chaser is disturbed is within a covenant for quiet enjoyment against disturbances generally." Vend. (14th ed.) 601. 4 As for example, where the cove- nant for quiet enjoyment stipulates against "any let, suit, interruption, disturbance," etc. Such a distinction was noticed by Gibson, C. J., in Stewart v. West, 14 Pa. 33S. "A covenant for quiet enjoy- ment," said he, "which resembles the modern covenant of warranty, differs from it in this, that the former is broken by the very commencement of an action on the better title." So the erection of a gate in a lane through which the plaintiff had a right of way was held to be a breach of a covenant that the defendant would do nothing to molest, hinder, or prevent him in the quiet possession or enjoyment of the lands. Andrews v. Paradise, 8 Mod. 318. So of an interruption of a way of ne- cessity through a house ; Morris v. Edg- ington, 3 Taunt. 24 ; or of the building of a house on part of the premises ; Kidder v. West, 3 Lev. 167. 6 Such as seems still to prevail in South Carolina, as it formerly did in Ohio, with respect to the covenant of warranty. See supra, p. 147, n. 4. 173 § 132.] THE COVENANT OP WARRANTY. [CHAP. VIII. § 182. The original and technical meaning attached to the word certainly was an expulsion by the assertion of a title para- mount and by process of law ; 1 but it has been long since such an interpretation has been given to the term in England, for in a case in the King's Bench at the close of the last century, where a declaration on a covenant for quiet enjoyment was demurred to because it did not show an ouster " under any legal process of law," the report says that " this was abandoned, the precedents being against it." 2 We were at first more conservative in America. In rather an early case in New York it was said that " the previous cases in that State, taken together, show that to constitute an eviction by a stranger there must be a disturbance of the possession under a paramount title by due process of law," 3 and in a subsequent case in the same State a similar position was taken. 4 But the cases cited did not sustain the doctrine, and more recently decisions there, as well as elsewhere, have settled the law as it is in Eng- land, that legal process is not necessary to an eviction. 5 1 See the various dictionaries. 2 Foster v. Pierson, 4 Term, 617. In Upton v. Townend, 17 Com. Bench, 30, the court, in speaking of the eviction of a tenant by the landlord, said: "It is ex- tremely difficult at the present day to de- fiue with technical accuracy what is an eviction. Latterly, the word has been used to denote that which formerly it was not intended to express. In the language of pleading, the party evicted was said to be expelled, amoved, and put out. The word ' eviction,' from evincere, to evict, to dispossess by a judicial course, was for- merly used to denote an expulsion by the assertion of a title paramount and by process of law. But that sort of eviction is not necessary to constitute a suspension of the rent, because it is now well settled that if the tenant loses the benefit of the enjoyment of any portion of the demised premises by the act of the landlord, the rent is thereby suspended. The term ' eviction ' is now popularly applied to every class of expulsion or amotion. Get- ting rid thus of the old notion of eviction, I think it may now be taken to mean this : not a mere trespass and nothing more, but something of a grave and permanent 174 character done by the landlord with an intention of depriving the tenant of the enjoyment of the demised premises. If that may in law amount to an eviction, the jury would very naturally cut the knot by finding whether or not the act done by the landlord is of that character and done with that intention." 3 Lansing v. Van Alstyne, cited in a note to 2 Wend. 563. The date of the case is not given, but that in which it is cited was decided in 1829. The cases referred to were Greenby v. Wilcox, 2 Johns. (N. Y.) 1 ; Waldron v. McCarty, 3 id. 473 ; Kortz v. Caqienter, 5 id. 120 ; VanderkaiT v. Vanderkarr, 11 id. 122 ; and Kerr v. Shaw, 13 id. 236. * Webb v. Alexander, 7 Wend. 285. s Green vault v. Davis, 4 Hill, (N. Y.) 645. " Upon principle," said Bronson, J. , "I can see no reason for requiring an eviction by legal process. Whenever the grantee is ousted of the possession by one having a lawful title to the property, paramount to the title of the grantor, the covenants of warranty and for quiet enjoy- ment are broken, and the grantee may sue." So in Booth v. Starr, 5 Day, (Conn.) 282; Coble v. Wellborn, 2 Dev. 134.] THE COVENANT OF WARRANTY. [CHAP. VIII. § 133. It follows that any actual entry and dispossession, ad- versarily and lawfully made under paramount title, will be an eviction. Such an entry could at common law be made by the holder of the paramount title in cases of abatement, intrusion, or disseisin, 1 while it could not be made in cases of discontinuance or deforcement. 2 And whenever at the present day such a right is exercised, 3 it is considered to have all the force and effect of a dispossession under legal process. 4 § 134. Nor is it, in general, necessary that the purchaser should await his actual dispossession by the holder of the paramount title, but he may under certain circumstances surrender the possession to the latter, thereby creating an ouster in pais. 6 Thus in the early and leading case in Massachusetts of Hamil- ton v. Cutts, 6 the defendant's testator conveyed certain land to the plaintiff, with a covenant of warranty against all lawful claims. To part of this land the testator had no title, and the real owner thereof entered into possession of the same with the consent of the plaintiff, who withdrew therefrom. " It was contended," said Parsons, C. J., who delivered the opinion, " that here there was no legal evidence of an ouster, because the dispossession took place (N. C.) 390 ; Grist v. Hodges, 3 id. 200 ; Hagler v. Simpson, Busb. L. (N. C. ) 386 ; Parker v. Dunn, 2 Jones L. (N. C.) 204 ; Leary v. Durham, 4 Ga. 593 ; Green v. Irving, 54 Miss. 450 ; Funk v. Creswell, 5 Clarke, (Io.) 86. In fact all the cases cited under the ensuing heads virtually overrule such a position. In Stewart v. Drake, 4 Halst. (N. J.) 141, the court said that ' ' the cases cited in the ar- gument from Johnson's Reports, as a whole, decide that there must be a dis- turbance in or deprivation or cessation of the possession, by the prosecution and operation of legal measures ; " but the point decided in the case was that where land subject to a mortgage had been sold with a covenant .against incumbrances, the mortgage foreclosed, and the property bought by the tenant of the vendee, these circumstances amounted to a legal evic- tion. See infra, § 143. 1 And even in these cases the right of entry, which was never assignable at law, Co. Litt. 314 a, might be tolled or taken away by descent cast. Litt. §§ 385, 413. This has been altered by statute 3 & 4 Will. IV. c. 27, § 39. 2 Where the original entry being lawful, and an apparent right of possession there- by gained, that right was not allowed to be defeated by the mere act or entry of the claimant. 3 Blacks. Com. 175. 3 As for example, by a mortgagee, who in Massachusetts, Maine, Rhode Island, New Hampshire, and some other States has by statute a right of entry under cer- tain circumstances. 4 Gore v. Brazier, 3 Mass. 540 ; Sprague v. Baker, 17 id. 590 ; Smith v. Shepard, 15 Pick. (Mass.) 147 ; Riekert v. Snyder, 9 Wend. (N. Y.) 422. 5 The earlier New York cases did not seem to recognize this. Thus in Kerr v. Shaw, 13 Johns. 238, supra, it was said, " The covenantee ought not to stop short of an actual ouster ; if he means to rely upon his covenant, he has no right to make any compromise until an actual eviction has been shown." But the law has not since been held so strictly. 6 4 Mass. 350. 175 § 134.] THE COVENANT OP WARRANTY. [CHAP. VIII. with the consent of the tenant in possession. It is true, that if the tenant consents to an unlawful ouster, he cannot afterwards be entitled to a remedy for such ouster. But an ouster may be lawful, and in that case the tenant may yield to a dispossession without losing his remedy on the covenant of warranty. . . . There is no necessity for him to involve himself in a lawsuit to defend himself against a title which he is satisfied must ultimately prevail ; '' and judgment was given for the plaintiff. The au- thority of this decision has been recognized by numerous others, and it has long been beyond question. 1 1 ' ' The defendant had an undoubted right," it was said in Drew v. Towle, 10 Fost. (N. H.) 537, "upon being satis- fied of the invalidity of his title, to aban- don the possession of the premises, and thereby to avoid the necessity of litiga- tion and its attendant perplexities and ex- penses. He owed the plaintiff no duty to remain in possession and sustain the bur- den of the defence when the title was invalid. . . . The right of the defendant was, at any period, to give up the posses- sion to the rightful owner upon claim made. He was under no obligation, either of duty or contract, to withhold it. He was not bound to seek redress through a litigation that might turn out to be fruitless with the party having the title." So in Green vault v. Davis, 4 Hill, (N. Y.) 643, the defendant conveyed to the grantor of the plaintiff, with a cove- nant of warranty, land which was sub- sequently sold under power of sale in a mortgage which existed at the time of the conveyance, and the purchaser put a ten- ant in possession, and this was held to be a sufficient eviction. The court said : " There is no reason why such surrender without the trouble and expense of a law- suit should deprive him of a remedy upon the covenant. The grantor is not injured by such an amicable ouster ; on the con- trary, it is a benefit to him, for it thus saves the expense of an action against the grantor to recover the possession." And in Clarke v. McAnulty, 3 Serg. & Rawle, (Pa.) 372, it was said by Gibson, J., "The law does not require the idle and expen- sive ceremony of being turned out by legal process where that result would be inevi- 176 table." Again, in Radcliff v. Ship, Hard. (Ky.) 292, it was said, "Had the plaintiff refused to yield that just respect and due obedience to the court which every good and well-disposed citizen ought to render, then it would have been necessary, in order to effectuate the justice of the case and to complete the right of the plaintiff in ejectment, to have executed the writs of possession ; but surely there can be no ob- jection to his acquiescing in and submit- ting to the judgment, thereby rendering compulsion unnecessary, and preventing the further accumulation of costs." To the same effect are Sterling v. Peet, 14 Conn. 254; McDowell v. Hunter, Dud- ley, (Ga.) 4; Leary v. Durham, 4 Ga. 606. And the surrender must obviously be made to the lawful owner, and not to the vendor. Axtel v. Chase, 83 Ind. 546 ; Thomas v. Stickle, 32 Io. 76 ; Woodward v. Allan, 3 Dana, (Ky. ) 164 ; Hanson v. Buckner, 4 id. 254 ; Slater v. Rawson, 1 Met. (Mass.) 455 ; Merritt v. Morse, 108 Mass. 275 ; Real v. Hollister, 17 Neb. 661 ; Loomis v. Bedel, 11 N. H. 83 ; Stone v. Hooker, 9 Cow. (N. Y.) 157 ; Fowler v. Poling, 6 Barb. S. C. (N. Y.) 168; Blydenburgh v. Cotheal, 1 Duer, (N. Y.) 196 ; Wood v. Forncrook, 3 Thomp. & Cook, (N. Y.) 303 ; Patton v. McFarlane, 3 Pa. (old Pa., not Pa. St.) 419; Poyntell v. Spencer, 6 Pa. 254 ; Steiner v. Baughman, 12 id. 106; Feriss v. Harshea, Mart. & Yerg. (Tenn.) 50, commenting on Radcliff v. Ship, supra ; Callis v. Cogbill, 9 Lea, (Tenn.) 137; Westrope v. Chambers, 51 Tex. 178 ; Haffey v. Birchetts, 11 Leigh, (Va.) 88. "An eviction by legal pro- cess," it was said in Fowler v. Poling, § 135.] THE COVENANT OF WARRANTY. [CHAP. VIII. § 135. In order, however, that such ouster in pais should amount to an eviction, it is necessary that the paramount title shall have been hostilely asserted. 1 For although there is a class of cases presently to be considered, which recognize the right of the purchaser to buy in the paramount title and re- cover in an action on the covenant the amount thus paid, yet it will be found that they refuse to sanction such recovery un- less there has been a prosecution or distinct hostile assertion of such title. 2 Where such has been the case, its purchase is considered as equivalent to an eviction, as the idle form of abandoning the premises under one title in order to re-enter under another is deemed unnecessary. But if in the one case it be considered as indispensable that there shall have been a previous assertion of the paramount title, it would seem that it would be equally indispensable in the other. 3 supra, " is not necessary, but the grantee breach of the covenant was attempted may surrender possession to the rightful to be set up as a defence to the payment owner, and that will be a sufficient ouster of the purchase money (see infra, Ch. to entitle him to his action in the covenant of warranty. It is true the Chancellor said in Hunt». Amidon, 4 Hill, (N. Y.) 345, in the Court of Errors, that the grantee had no right to give up voluntarily to a stranger claiming by title paramount, but his re- mark was obiter, and he was evidently mis- taken. In Hamilton v. Cutts, 4 Mass. 349, Stone v. Hooker, 9 Cow. (N. Y.) 154, and Greenvault v. Davis, 4 Hill, (N. Y.) 646, the opposite doctrine was clearly laid down, with this restriction, that when the grantee surrenders or suffers the possession to pass from him without a legal contest, he takes upon himself the burden of showing that the person who entered had a title para- mount to that of his grantor." The ex- pressions in Beebe v. Swartwout, 3 Oilm. XIV., where these cases are more partic- ularly noticed), and the same remark applies to the very recent case in Ten- nessee of Hayes v. Fergusson, 15 Tenn. 1, where, after litigation, the tenant seems to have abandoned the possession of part of the leased premises, and it was held that this was no ground to rescind the lease but might work an abatement of the rent. In Witty v. High tower, 12 Sm. & Marsh. 481, Clayton, J., remarked, "The utmost limit to which the cases cited by the counsel of the plaintiff go is, that an actual eviction under judgment of court is not always necessary. An ouster may be sufficient, but then the burden of proof is upon the party who has yielded the pos- session. Hamilton v. Cutts, 4 Mass. 350 ; (111.) 182, 183, which at first sight appear Stone v. Hooker, 9 Cow. (N. Y.) 157. to conflict with this train of authority, refer entirely to the outstanding posses- sion being one under a paramount title, in distinction to a mere adverse possession in its narrow and technical signification ; see infra, p. 188. Although in Mississippi there are ex- pressions in the cases of Hoy v. Taliaferro, 8 Sm. & Marsh. 741, and Dennis v. Heath, 11 id. 218, which seem to advocate a more rigid rule, yet the cases were not actions on the covenant of warranty, but the 12 But these cases do not establish that there can be a breach of the covenant of war- ranty without an eviction, an ouster, or a surrender, or holding out under a para- mount outstanding title." It is obvious that the utmost care must be taken to dis- tinguish the dicta from the decisions upon this point. i Axtel v. Chase, 83 Ind. 546 ; Knep- per v. Kurtz, 58 Pa. 480. 2 Infra, § 148. 8 Thus, in Sprague v. Baker, 17 Mass. 177 136.] THE COVENANT OF WARRANTY. [CHAP. VIII. § 136. And in all these cases it must be borne in mind that if the purchaser choose to retire before the paramount title it is at his own risk, and in the suit against his covenantor he must assume the burden of proof and make out the adverse title to 590, it was said : "If the plaintiff had voluntarily discharged the mortgage with- out any previous demand made, his only remedy would have been on the covenant against incumbrances. But a demand having been made, the plaintiff might have yielded to the dispossession, and such an ouster would have entitled him to his remedy on the covenant of war- ranty, as was decided in Hamilton v. Cutts." So in Dupuy v. Roebuck, 7 Ala. 488, it was said : "It was necessary that some particular act should be shown by which the plaintiff was interrupted, other- wise the breach of covenant for quiet en- joyment would not be well assigned. If a demand was made, the plaintiff, it was said, might yield to the dispossession ; " while in Hagler v. Simpson, 1 Busb. (N. C.) 386, where the plaintiff gave up the possession of the premises soon after their recovery from him in ejectment, this was held to be no eviction. " No?i constat that he would have been disturbed in his possession had he remained upon the prem- ises." In Moore v. Vail, 17 111. 190 (and see this case, infra, p. 183, n. 2), the law was thus well stated by Eaton, J. : " The older authorities undoubtedly hold that there could be no breach of a common warranty of title or warranty for quiet enjoyment, until the covenantee had been actually evicted or turned out of the premises. The spirit of such a covenant, and the manifest justice of the matter, soon began to prevail over such an ex- tremely literal interpretation of the inten- tion of the parties. And it was held that where at the time of the execution of the covenantee the premises were in the actual possession of another, who held them un- der a paramount or perfect title, then the covenant was broken as soon as it was made, ; for the party should not be put to the useless expense, delay, and trouble to bring ejectment to get the possession, when it would certainly prove unavailing; nor should he be required to commit an 178 actual trespass upon the real owner in order to get possession, that he might himself be turned out of possession. But this is not the only case of constructive eviction which may now be considered as well settled by authority and sustained by sound principles of morality and justice. If the covenantee be in the actual posses- sion of the estate, he has the right to yield that possession to one who claims it under a paramount title, without resisting him by force or by litigation ; and this is sustained by the same reasons of justice and good government which are applicable to the first exception. This, however, is not to be understood as holding that the mere existence of a paramount title con- stitutes a breach of the covenant, or that it will authorize the covenantee to refuse to take possession when it is quietly ten- dered to him, or when he can do so peace- ably, and then claim that by reason of such paramount title and his want of pos- session the covenant is broken ; nor will it justify him in abandoning the possession without demand or claim by the one hold- ing the real title. His possession under the title acquired with the covenant is not disturbed by the mere existence of that title ; and he has no right to assume that it ever will be, until he actually feels its pressure upon him. He must act in good faith towards his covenantor, and make the most of whatever title he has acquired, until resistance to the. paramount title ceases to be a duty to himself or his cov- enantor. While he is not bound to con- test where the contest would be hopeless, or resist where resistance would be a wrong, yet always where he yields with- out a contest or resistance he must take upon himself the burden of showing that the title was paramount, and that he yielded the possession to the pressure of that title. Whenever he does yield quietly, he does so at his peril." And this has since been approved. Allis v. Nininger, 25 Minn. 525. § 138.] THE COVENANT OF WARRANTY. [CHAP. VIII. which he has yielded, with as much particularity as if he were suing in ejectment, 1 unless, of course, the adverse right of posses- sion has been established by a judgment or decree in a suit of which the covenantor had been properly notified, in which case the burden of proof will not only be removed, but the judgment or decree will be conclusive evidence of the validity of the paramount title. 2 § 137. The result of the authorities would therefore seem to be that where the holder of the adverse title has the right summarily to obtain possession under it and adversarily asserts or prosecutes that right, the covenantee may anticipate its actual exercise and voluntarily surrender the possession, by which ouster in pais a sufficient eviction will be caused to support an action on the cove- nant, in which, hoAvever, he will be obliged to prove that the results which he thus anticipated were inevitable. The foregoing cases, in which there has been either an adver- sary dispossession or a compulsory yielding up of the possession, illustrate what is generally termed actual eviction. § 138. Under the head of constructive eviction may be con- sidered first, the cases in which an eviction is deemed to be caused by the inability of the purchaser to obtain possession by reason of the paramount title. In the old case of Holder v. Taylor, 3 the plaintiff having brought covenant upon the warranty implied by the word demise in a lease, proved a prior lease to a stranger and possession by him ; and upon objection that the plaintiff showed no actual entry on his part and expulsion of the stranger, it was held that the word demise implied a power of leasing, which, if it did not exist, was broken as soon as made, 4 and also that it was not reasonable to force the lessee to enter upon the land and so commit a tres- pass ; " but," the court added, " if it were an express covenant for quiet enjoying, then perhaps it were otherwise." This supposition was, however, soon after met by the case of Cloake v. Hooper, 5 where lands were conveyed by the defendant to 1 Thomas v. Stickle, 32 Io. 76; Hamil- v. Cogbill, 9 Lea, (Tenn.) 137; Peck v. ton v. Cutts, 4 Mass. 350 ; George v. Hensley, 20 Tex. 678 ; Westrope v. Cham- Putney, 4 Cush. (Mass.) 355 ; Witty v. bers, 51 id. 178. High tower, 12 Sm. & Marsh. (Miss.) 481; 2 Supra, § 125. Snyder v. Jennings, 15 Neb. 372 ; Stone 8 Hob. 12. v. Hooker, 9 Cow. (N. Y.) 157; Green- 4 As to this see infra, Ch. X. vault v. Davis, 4 Hill, (N. Y.) 643 ; Callis 5 Freem. 122. 179 § 138.] THE COVENANT OF WARRANTY. [CHAP. VIII. the plaintiff, with a covenant for quiet enjoyment, and the latter having averred that the lands belonged to the king, who had pre- viously conveyed them, a demurrer by the defendant that the plaintiff did not allege an entry and so could not be disturbed, was held bad, the court saying, " The declaration is good enough ; for having set forth a title in the patentee of the king, the plaintiff shall not be enforced to enter and subject himself to an action by a tortious act." So in a more recent case in the King's Bench, the plaintiff declared on a covenant for quiet enjoyment in a lease for years determinable on lives, alleging that he was never in pos- session, that he had been refused attornment by the tenant, and subsequently defeated by him in an ejectment, on the ground of a prior lease granted by the defendant. The latter pleaded that for the first half-year after the date of his lease the plaintiff might have entered and enjoyed, but that for non-payment of the rent for twenty-one days after that time the defendant had a right of re-entry which he exercised ; and upon demurrer, the court held that the defendant's covenant for quiet enjoyment meant a legal entry and enjoyment without the permission of any other person, which could not have taken place here on account of the prior lease granted, and which was averred to be then subsisting, and judgment was accordingly given for the plaintiff. 1 And here again we were at first more conservative in America. In a case before the Supreme Court of the United States in 1825, 2 where the plaintiffs alleged first, that by reason of a want of title in their grantor they had been unable to obtain possession of the premises, and secondly, that they had been ousted from the said premises, it was said, " These averments are in opposition to each other. But the allegation that possession has never been obtained is immaterial because not a breach of the covenant, and a ma- jority of the court are disposed to think may be disregarded on a general demurrer." And such was the actual decision in New York in Kortz v. Carpenter, 3 where the breach of the covenant for quiet enjoyment being alleged to be that at the date of the deed to the plaintiff, and long before, the premises were adversely, by 1 Ludwell v. Newman, 6 Term, 458. thought that a refusal to give possession In Hawkes v. Orton, 5 Adolph. & Ellis, might, if properly averred, be a breach 367, judgment was rendered for the de- of the covenant for quiet enjoyment. fendant by reason of there being no evi- 2 Day v. Chism, 10 Wheat. (S. C. U. S.) dence of the breach as stated in the 452, per Marshall, C. J. declaration. But the court seem to have 3 5 Johns. (N. Y.) 120. 180 § 138.] THE COVENANT OF WARRANTY. [CHAP. VIII. lawful title and right, held, possessed, and enjoyed by the proprie- tors of the Hardenbergh patent, this was held bad, on general demurrer, as not showing an eviction. So in a subsequent case in the same State, 1 it was said that if the covenantee never had had the possession, however hard the case might be, no action would lie on the covenant for quiet enjoyment — that lie should have protected himself by other covenants. But such a view of the law, which seems to have been supported by no other authority than the dictum in Holder v. Taylor, 2 has failed to receive approval, and the reasons upon -which the oppo- site doctrine is based have been nowhere stated more forcibly than in the case of Grist v. Hodges, 3 in North Carolina, where Ruffin, J., in delivering the opinion of the court, said : " The existence of an incumbrance, or the mere recovery in a possessory action under which the bargainee has not been actually disturbed, are held, for technical reasons, not to be breaches of a covenant for quiet possession, or, in other words, of our warranties. But that is a very different case from this, in which the bargainee never in fact was in possession, but was kept out by the possession of an- other, under better title existing at the time of sale and deed, and ever since. The case of Kortz v. Carpenter is of the same charac- ter. But it is distinguishable from the present, for there had been no attempt in that case to get possession. Here there was, by ejectment. 4 I do not, however, think that was necessary ; but the existence of a better title, with an actual possession under it in another, is of itself a breach of the covenant. 5 It is manifestly just that it should be so considered ; for otherwise the covenantee would have no redress but by making himself a trespasser by an actual entry, which the law requires of nobody, or by bringing an unnecessary suit, for the event of that suit proves nothing in the action on the covenant." 6 The general principle thus ably ex- 1 St. John v. Palmer, 5 Hill, (N. Y.) 6 Aliter of course where there is no 601. actual possession and the paramount title 2 Supra, p. 1 79. was not proved. Thus in the very recent 3 3 Dev. 200. case of Wilder v. Davenport, 58 Verm. * The breach assigned was an eviction 642, there was merely a deed under what by one Wingfield, and the evidence was was alleged but not proved to be the para- that Wingfield was in actual possession mount title, but no possession, and it was of the property, and that the covenantee obviously held that this was no eviction, had brought an ejectment against him 6 The technical reasons for the rule and failed therein by reason of Wingfield's were then thus stated by the court : " But paramount title. upon purely legal grounds it is so. For as 181 § 139.] THE COVENANT OF WARRANTY. [CHAP. VIII. plained has been recognized and applied in many other cases, 1 and an analogy may be found in the old common law, which, although strictly requiring livery of seisin to accompany every feoffment, allowed the feoffee, where he dare not enter through fear of his life or of bodily harm, to make a yearly continual claim, as near the land as possible, which would be " a good entry in law." 2 § 139. The rule, therefore, as best supported by reason and authority, would seem to be this : where, at the time of the conveyance, the grantee finds the premises in possession of one claiming under a paramount title, the covenant for quiet enjoy- ment or of warranty will be held to be broken, without any other act on the part of either the grantee or the claimant ; for the latter can do no more towards the assertion of his title, and as to the former the law will compel no one to commit a trespass in order to establish a lawful right in another action. 3 between the bargainor and bargainee, the latter i.s in by force of the statute of uses. It is upon that idea that the legal estate is acquired by a deed of bargain and sale. It passes the use and the statute carries the possession. It is so in the conveyance by lease and release. There must be a possession for the latter to operate on. But it is not an actual possession ; at least the actual entry need not be proved. The statute transfers the possession, and the lessor cannot say it was not actual for the purpose of defeating his subsequent release. As between the parties, then, the bargainee is, on strict principles, in ; but if there be in reality an adverse possession he can only be held to be in for an instant, for there will be no implication against the truth further than is necessary to make the deed effectual for its purposes. If such adverse possession be upon title paramount, then there is an eviction of the bargainee eo instanti that the posses- sion conferred by the statute takes place, or tin- eviction need not be by process." 1 Caldwell v. Kirkpatrick, 6 Ala. 60 ; Banks v. Whitehead, 7 id. 83 ; Playter v. Cunningham, 21 Cal. 229; Small v. Reeves, 14 Ind. 164 ; Cummins v. Kennedy, 3 Lit- tell, (Ky.) 123 ; Barnett v. Montgomery, 6 T. B.Mon. (Ky.) 328; Curtis v. Deer- ing, 12 Me. 501 ; Blanchard v. Blauchard, 182 48 id. 174 ; Matteson v. Vaughn, 38 Mich. 373, infra, p. 184, n. 2 ; Dennis v. Heath, 11 Sm. & Marsh. (Miss.) 206 ; Witty v. Hightower, 12 id. 478 ; Green v. Irving, 54 Miss. 450 ; Blondeau v. Sheridr.n, 81 Mo. 545 ; Loomis v. Bedel, 11 N. H. 74 ; Chandler v. Brown, 59 id. 370 ; Miller v. Halsey, 2 Green, (N. J.) 59 ; Gardner v. Keteltas, 3 Hill, (N. Y.) 330 ; Mills v. Rice, 3 Neb. 76 ; Wilder v. Ireland, 8 Jones L. (N. C.) 87; Randolph v Meeks, Mart. & Yerg. (Tenn.) 58; Duval v. Craig, 2 Wheat. (S. C. U. S.) 62 ; Noonan v. Lee, 2 Black, (S. C. U. S.) 507 ; Phelps v. Saw- yer, 1 Aik. (Verm.) 158 ; Park v. Bates, 12 Verm. 381 ; University of Vermont v. Joslyn, 21 id. 52 ; Sheffey's Exrs. v. Gar- diner, 79 Va. 313; Rex v. Creel, 22 W. Va. 373 ; Moreland v. Metz, 24 id. 119. In Moore v. Vail, 17 111. 185, the court said, " We admit the principle of law claimed that if at the time this convey- ance was executed the premises were actu- ally in possession of a third party claiming under a paramount title, that of itself amounted to an eviction eo instanti." See this case, infra, p. 183, n. 2. 2 Co. Litt. 53 n. 8 Fritz v. Pusey, 31 Minn. 368; Murphy v Price, 48 Mo. 250 ; Rea v. Minkler, 5 Lans. (N. Y.) 296 ; Clark v. Conroe, 38 Verm. 475 ; Russ v. Steele, 40 id. 315. § ho.j THE COVENANT OF WARRANTY. [CHAP. VIII. § 140. It remains to inquire how far such a rule would apply where, as is often the case in this country, the land is without actual occupation or possession by any one. With respect to wild and uncultivated lauds, it has long been settled on this side of the Atlantic that the owner is to be deemed in posses- sion so as to enable him to bring trespass against a wrongdoer, on the ground that the legal seisin draws with it the posses- sion unless there is at the time an actual adverse possession. 1 When such land is conveyed by deed taking effect under the statute of Uses, a constructive possession is given to the grantee. 2 And to the same effect is Rex v. Creel, 22 W. Va. 373. In the very recent case in New York of Shattuck v. Lamb, 45 N. Y. App. 499, the subject was almost considered as res Integra and all the authorities elabo- rately considered ; the case of Kortz v. Car- penter was distinctly overruled, and the statement in the text approved, Dwight, J., dissenting. In Murphy v. Price, supra, this rule was applied to a case arising un- der the statutory covenants implied from the words "grant, bargain, and sell" (infra, Ch. XII.); and in Russ v. Steele and Rea v. Miukler, supra, an existing, hostilely asserted paramount right of way was held to be an eviction to the extent of the adverse right. But in McMullan v. Wooley, 2 Lans. (N. Y.) 395, the right to draw water through pipes from a spring was held to come only within the scope of a covenant against incumbrances as it was not considered to be a deprivation of part of the land. 1 Proprietors of Kennebeck v. Call, 1 Mass. 484 ; Van Brunt v. Schenck, 11 Johns. (N. Y.) 385; Mather v. Trinity Church, 3 Serg. & Rawle, (Pa.) 514 ; Bush v. Bradley, 4 Day, (Conn.) 306. When the cases say that this rule applies only when there is no adverse possession, this is principally intended to preserve the effects of the statutes of limitation, as those statutes would be totally useless in case an actual, visible, and notorious pos- session for the prescribed length of time could be defeated by the constructive possession given to the true owner. As between parties claiming by title, the pos- session would of course follow the bet- ter title. In the note to Taylor v. Horde, 2 Smith's Lead. Cas., the student will find the numerous cases upon this subject classified. 2 Moore v. Vail, 17 111. 185. In this case the question arose with respect to the statute of limitations. In an action on the covenant of warranty, it was proved that at the time of the sale to the plain- tiff in 1836 the premises were in the actual possession of one Lynch, ichn how- ever did not claim to be in possession wider color of title, and who soon after left them vacant, in which state they continued until 1842, when Mrs. Lynch, ivho then held the paramount title, took possession. "The defence now insisted upon," said the court, "is the statute of limitations. It is not denied that the title has failed and that there has been in contemplation of law an eviction so as to give the right of action on the covenants ; but it is insisted that the title failed and that a technical evic- tion accrued on the first day of September, 1836, the moment the deed was executed, which was more than sixteen years before this action was brought. We admit the principle of law as claimed, that if at the time this conveyance was executed the premises were actually in the possession of a third party claiming under a paramount title, that of itself amounted to an evic- tion, eo instnnti [citing the text]. From the facts already stated, does it appear that on the first of September, 1S36, Lynch held possession of the premises un- der an adverse paramount title ? The pre- sumption is that he held in subordination to the title which he had conveyed to Col- lins, and there can be no doubt that he might have been dispossessed, under the 183 § 140.] THE COVENANT OP WARRANTY. [CHAP. VIII. But it does not follow that such constructive possession is of itself equivalent to an actual entry and possession by the grantee ; for until the better title shall have been adversely asserted, the posi- tion remains the same. As to what shall be considered such assertion of title, it is in the first place held that a mere sale to the true owner is not such an assertion. Thus in a case in New Hampshire, where two tenants in common were the true owners of land which was a wilderness without possession by any one, and one of them sold his share, the plaintiff, who had received a deed for a defective title with covenant of warranty, brought suit against his grantor, claiming that as the land was a wilderness the strongest evidence of claiming title was by conveying it. But it was held that this, without more, was no ouster or disturbance. 1 In a late case in Michigan the law was held the same way, 2 and deed of conveyance on which this suit is brought, by an action of ejectment. The continued possession of Lynch, not being under paramount title nor even adverse to the plaintiff's title, did not constitute an eviction so as to give the plaintiff a cause of action on his covenant of war- ranty. The plaintiff's constructive pos- session continued until it was actually interfered with by the owner of the para- mount title. Until that time he might peaceably have entered upon and enjoyed the premises without resistance or moles- tation, which was all his grantors cove- nanted he should do. They did not guarantee to him a perfect title but the possession and enjoyment of the premises. There was no interference with this till Mrs. Lynch entered and took possession of the property in 1842. This entry being by paramount title, although peaceable ami without opposition from the covenan- tee, was at least a constructive ouster and a breach of the covenant. Then, for the first time, an action accrued upon this covenant, and not till then did the statute of limitations begin to run." The dis- tinction is here stated with great clearness. 1 Loomistf. Bedel, 11 N. H. 74. 2 Matteson v. Vaughn, 38 Mich. 373. At first sight, the case might not appear to sustain this position. The plaintiff, who held a defective title to wild land, was preparing to enter and cut timber on 184 it, and was, in a neighboring town, warned by the true owner of an undivided moiety that he would be prosecuted if he did, whereupon the plaintiff sued on the cove- nants for seisin, against incumbrances, and of warranty. The court below held that the action on the two former was barred by limitation, but allowed a recov- ery for half the consideration, and interest from the date of the supposed eviction. The plaintiff brought error, claiming that none of the causes of action were barred, and that the damages should have been the whole consideration money, with in- terest from the date of the deed. The defendant brought no error, and the judg- ment was affirmed, but on this ground only. The court had no doubt as to the bar of the statute. But it said : "So far as the covenant of warranty is concerned, the situation is peculiar. Vaughn (the grantor of the defective title) never had either title or possession. His void deeds could not draw possession after them by construction. The constructive possession, if anywhere, was in the grantees of the United States from the beginning. And inasmuch as Matteson (the grantee, plain- tiff) was never in possession actually or constructively, it is difficult to see what difference there is between his original and his present position. He is no more excluded now than he has always been. We do not comprehend how he can be § 140.] THE COVENANT OF WARRANTY. [CHAP. VIII. very recently in Mississippi the doctrine was carefully considered and approved. 1 But an exception was considered to exist where said to have been evicted. An eviction, according to all the best authorities, means some change in the possession of the party by the disturbance of an actual or con- structive possession, which has been dis- placed by a paramount title to which the party has been compelled by law or by satisfactory proof of genuineness to sub- mit. Some of the authorities hold that there can be no eviction of one who is not in actual possession. Others more lib- erally extend the rule to a constructive possession. But it would be going to an absurd length to hold that a person can be said to have been disturbed or evicted when he has never had either kind of pos- session. As was well remarked by the Su- preme Court of New York in St. John v. Palmer, 5 Hill, 599 {infra, p. 187, n. 2), 'The mere fact of a superior title in a third person can never amount to a breach of the covenant of quiet enjoyment. The possession of the covenantee must be dis- turbed — he must be evicted— by the per- son having the better title.' In that case the plaintiffs were held to be in by con- structive possession, and therefore capable of being ousted under a mortgage derived from the same source of title. But the ne- cessity of some real or constructive pos- session was plainly asserted and recognized. The authorities are fully considered in Rawle on Covenants. The doctrine of the case in 5 Hill is quite as liberal as justice and good sense will warrant. ... As in our opinion the plaintiff in error has a larger judgment than he could lawfully obtain under tlie facts set out in the record, [the italics are those of the author of this treatise,] he has no cause of complaint," — showing that if the defendant had ex- cepted, judgment would have been given in his favor. 1 Green v. Irving, 54 Miss. 450. The court, after referring to the general princi- ples stated in the text, said : "It may be said, however, that although their princi- ples are correct as applicable to land which is susceptible of actual occupation, a dif- ferent rule should prevail as to wild lands; that as to these no length of constructive possession will ripen an imperfect into a perfect title ; that inasmuch as the owner of the defective title is not in possession, it should not be deemed essential that the true owner should make any demand upon him, or that the true owner should be re- quired to signify his assertion of title by taking possession of a wilderness or bring- ing suit against a party who is not interfer- ing with his rights. These considerations seem cogent and persuasive and we con- fess that we have found it difficult to resist them. It will be found, however, that to yield to them will be to do vio- lence to the immemorial principles un- derlying and governing the covenant of warranty of title, and practically to abol- ish the distinction between that covenant and those of seisin and of right to convey. . . . Another reason, more technical but perhaps not less satisfactory, exists for re- quiring some hostile assertion of the para- mount title to wild lands before the vendee can maintain suit upon the covenant of general warranty. By the deed which he receives he is vested with the possession of his vendor. In England, where livery of seisin was anciently required to convey possession, this effect was accomplished by deed of bargain and sale, by virtue of the statute of Uses, which drew the possession to the use. Whenever, therefore, actual possession upon the part of the vendee was necessary to enable him to assert any right against the vendor, the latter was estopped to deny that such possession had been conveyed. ... If the law, in the in- terests of the vendee, will presume a pos- session and ouster where the premises are in the actual possession of the true owner, a fortiori in the case of wild lands will it, for the protection of the vendor, require a constructive ouster from this presumed possession by hostile assertion of the para- mount title betore suit can be instituted upon the covenant. We are not compelled in this State to resort to the statute of Uses, because by our law livery of seisin was never required, and the possession passes with the deed. Code of 1857, c. 36, § 1, art. 1; Code of 1871, § 2294. We 185 § uo.] THE COVENANT OP WARRANTY. [CHAP. VIII. the sale and conveyance are by the same vendor, to a third person, of a good title subsequently acquired, 1 or by a sovereign State, 2 for in the latter case the sale is such an authentic and public act as to amount to a declaration that it claims title and by the act conveys it to a person other than the one in possession. 3 Still Lave not been referred by counsel to any case which announces a different doctrine on the subject under consideration where wild lands are involved from that which obtains in other cases, nor have our own researches disclosed one." 1 Upon a reargumeut, upon another point, the court said : " We remain satis- fied that a mere conve}'ance of the para- mount title by the true owner will not ordinarily amount to a sufficient assertion against a vendee, holding under a defective title, to justify an abandonment and suit by him on his covenants ; but as between private persons we would qualify this doc- trine by the remark that if it is the imme- diate grantor in the defective conveyance who has made a subsequent valid convey- ance, his vendee under the first deed might abandon and bring suit ; and in such case the covenantor would not be al- lowed to say that there had been no hos- tile assertion of the true title, because his act would amount to a disaffirmance and annulment of the only title the vendee had. Thus in the case at bar, if Green had made Irving an invalid deed, and had subsequently conveyed by proper deed to another, Irving could maintain his suit. Can he do so because Green's vendor has made such conveyance ? If Green's vendor were a private person, he could not, be- cause such a transaction would be as to him res inter alios acta, and could not give him any new rights against Green." 2 Green v. Irving, supra. 3 On the first argument, the court held that no such qualification existed. " The i gument was granted on one point only ; namely, conceding that the princi- ple announced in the former opinion were correct where the paramount title resides in a private person, should a different rule prevail in this case because of the fact that the State was the true owner ? . . . Green's vendor, who had first made an in- valid patent to him, and subsequently a 186 valid one in disaffirmance of the first, was the State of Mississippi. Does this change the result ? Upon mature reflection we think that it does. Our conclusion is that wherever the paramount title to land re- sides in the State, a sale by the State amounts to a hostile assertion of that title against all the world ; and that persons in possession under defective titles may at once abandon as upon eviction and insti- tute suits against their covenantors, even where their own titles are not derived from the State. Several considerations lead to this conclusion. A sale by the State must be regarded as a hostile assertion against all in possession of its lands, because ordi- narily it is the only way in which the State can make it. Its impersonal char- acter renders it impossible for the State to make demand of possession, nor could it be surrendered to it save by leaving the land unoccupied. It has no officer whose duty or right it would be to make such demand or receive possession. If the State can bring an action of ejectment, it would be impossible to execute in its behalf a writ of habere facias possessionem. In making a sale, the State declares in the most authentic and public manner that it claims title and by the act conveys it to a person other than the one in possession. It is not perceived how else the State could assert its title except by an act of the legislature ; and it could not be ex- pected that there should be a legislative act for every separate parcel of State land wrongfully occupied by a private individ- ual. When by patent the State conveys title, the act is that of all its citizens, and all of them therefore must be supposed to be aware of it, so far as their rights can be affected thereby. A vendee in posses- sion under an invalid deed may abandon whenever the true owner has said to him, ' You are on my land and I want it.' The State must be considered as having said this whenever it makes a sale. It claims § wo.] THE COVENANT OF WARRANTY. [CHAP. VIII. another exception has been held to exist in the case of a public sale of the paramount title and its purchase by the covenantee of one claiming through a defective title. 1 But although a mere conveyance of the better title will not, in general, be such an adverse assertion of it as to amount to an eviction, yet it is other- wise when adversary proceedings have been commenced and a de- cree of possession obtained. Thus in a case in New York, the defendants, owners of a vacant lot, having mortgaged it to a third person, conveyed it, with a covenant for quiet enjoyment, to the plaintiffs. The mortgagee foreclosed by proceedings to which he made the plaintiffs parties, obtained a decree that possession be delivered to the purchaser, and bought in the property at the master's sale. In an action on the covenant the court held that this was an eviction. 2 the land by making out the patent. It declares that it wants it when it receives the money for it ; because, ordinarily, the State has no use for land except to sell it, and can use it in no other way." From this judgment Campbell, J., dis- sented, on the ground that "a conveyance by the State or an individual does not constitute a breach of the covenant of war- ranty, because it is neither a turning out, nor a holding out, of possession. It in no way affects the rights of the covenantee as to possession. It leaves him just as he was, and it may be that the title acquired by the second conveyance will never be asserted. If not, he is unaffected. If it shall be, then he may yield to it and entitle himself to an action on his covenant." 1 Loomis v. Bedel, 11 N. H. 74. This case is thus well stated in Green v. Irving, 54 Miss. 450, supra, p. 185, n. 1. Tillot- son and Eastman, tenants in common, were the true owners of the land, which was a wilderness. Stephenson held a deed from another claimant. No one was in posses- sion. Tillotson died, and his administra- tor, by order of the proper court, sold at public auction the interest of his intestate in the lands. Stephenson attended the sale and bought in this interest. About the same time Eastman, the other joint owner of the true title, sold to a stranger. Thereupon Stephenson brought his action against his covenantor as upon an eviction from the whole. It was held that his suit could be maintained as upon an eviction from the undivided moiety which had be- longed to Tillotson, because the obtaining by the latter's administrator of leave to sell was an assertion of his intestate's title, and Stephenson had the right to attend the sale and buy it in ; but that as to Eastman's portion he could not recover, it not being shown that Eastman or his ven- dee had taken any steps to assert his title ; and it was said that the bare fact that Eastman had sold to another was not such hostile assertion of his title as warranted an abandonment by Stephenson or a suit against his covenantor. 2 St. John v. Palmer, 5 Hill, (N. Y.) 599. "In the cases which have been cited," said the. court, [these cases were Waldron v. McCarty, 3 Johns. 471 ; Kortz v. Carpenter, 5 id. 120 ; Kerr v. Shaw, 13 id. 236 ; Webb v. Alexander, 7 Wend. 281,] "the covenantee either remained in possession without any actual ouster be- fore suit brought, or else he never had any possession, either actual or constructive. In the case before us, as the premises were wholly unoccupied the legal seisin fol- lowed the title. The plaintiffs had the constructive possession the moment they received the deed and could have main- tained trespass against any one who should enter on the land without title. They were in such a condition that an ouster or disseisin might follow. How have the plaintiffs been evicted ? When the mort- 187 § 141.] THE COVENANT OP WARRANTY. [CHAP. VIII. § 141. Before dismissing the class of cases upon the subject of an eviction being caused by the grantee's inability to obtain the possession, it must be repeated that such possession must be un- der a title actually paramount, and not an adverse possession such as might ripen by lapse of time under the limitation acts into a perfect title. Such a possession might, according to some authorities, cause a breach of the covenant for seisin ; J but there appear to be none which decide that it would cause a breach of the covenant of warranty or for quiet enjoyment. On the con- trary, in an early case in Vermont, 2 and more recently in Illinois and New York, it has been held that such a possession was no breach of these covenants. 3 gagee acquired a paramount title under the mortgage, the legal seisin — the prem- ises still being unoccupied — immediately passed from the plaintiffs to him. He then had the constructive possession and could maintain trespass against the plain- tiffs as well as any one else who should enter on the land. This would not be enough without showing that the mortga- gee had asserted his title to the land. The mere fact of a superior title in a third per- son can never amount to a breach of the covenant for quiet enjoyment. The pos- session of the covenantee must be dis- turbed — he must be evicted — by the person having the better title. It is not necessary, however, that he should be evicted by legal process ; it is enough that he has yielded the possession to the right- ful owner, or that such owner has entered, the premises being vacant, and taken pos- session. Greenvault v. Davis, 4 Hill, 643. The mortgagee has asserted his right. He filed a bill in chancery for the purpose of perfecting his title under the mortgage, and made the defendants, as well as the plaintiffs, parties to the suit. And he not only acquired a perfect paper title by the foreclosure and the sale, but there was a decree against all the parties to the pres- ent ;nt ion thai he should be let into the possession of the property and that pos- i'in should be delivered to him. All parties have acquiesced in the decree. As there was no actual possession in the plain- tills or any one else, no formal act was necessary for the purpose of giving the 188 mortgagee the complete enjoyment of his legal rights. It would have been an idle ceremony to issue a writ of assistance or any other execution on the decree. The decree was executed the moment the mort- gagee received the master's deed. And thus the constructive possession, or legal seisin, which was in the plaintiffs, was by the acts of the parties and the operation of law transferred to the mortgagee. He has since exercised acts of ownership over the property, and no one has questioned his right to do so. I think there has been such an eviction of the plaintiffs as amounts to a breach of the covenant." 1 Supra, § 42 ct scq. 2 Phelps v. Sawyer, 1 Aik. (Verm.) 157. 3 Beebe v. Swartwout, 3 Gilm. (111.) 183 (where the subject was elaborately exam- ined both by counsel and the court) ; Moore v. Vail, 17 111. 185, supra, p. 183, n. 2. In Jenkins v. Hopkins, 8 Pick. (Mass.) 350, the law was incidentally considered as- so settled : "The depositions show an actual possession and occupation and pay- ment of taxes by several persons, but there is no legal evidence of this title. . . . The fact of possession as proved by the wit- nesses stands disconnected from any title, and therefore we cannot know that it was not unlawful, and if it was so it is no breach of the covenant of warranty." In Rindskopf v. Farmers' Loan Co., 58 Barb. (N. Y. ) 49, lands were conveyed by the defendant with a covenant of general warranty. They were at the time held by third parties claiming adversely to the § W2.] THE COVENANT OP WARRANTY. [CHAP. VIII. § 142. The next class of cases under the head of constructive eviction is that which holds that an eviction will be caused by the covenantee having compulsorily purchased or taken a lease under the paramount title, without any actual change of possession, both in cases where the validity of such title has been estab- lished by the judgment or decree of a court of competent juris- diction, and under certain circumstances where it has not been thus established. In opposition to such a doctrine it has often been urged that it confounds all distinctions between a covenant for seisin and a covenant for quiet enjoyment or of warranty, and it has also been argued that an analogy exists to the rule which prohibits a tenant from disputing his landlord's title unless there has been an eviction under the paramount claim. But in answer to such an analogy, it may be said first, that whatever may have been the origin of this rule, 1 or its earlier application, it is now settled that wherever the landlord's title is insufficient for the security of the tenant the relation between them may be renounced, and the latter may protect himself under the paramount title ; 2 and this is held to be a constructive evic- defendant, whose possession, however, had not yet ripened into title, but subsequently did so before suit brought ; and it was held in an action on the covenant, that there could be no recovery. "The plaintiff," said the court, " has not lost his right in the land by a title paramount existing at the time the covenant in question was made by the defendant, but by his own laches in suffering an imperfect and in- ferior claim of title to become a legal title paramount to his." 1 It is now well settled that except where the lease was by indenture this doc- trine is of modern origin, and was never heard of till towards the close of the last century. In the first three editions of this treatise, some space was devoted to this subject (Covenants for Title, pp. 262-268, 3d ed. ) ; but since their publication it has been discussed by several learned authors, as also from the bench, and need therefore only be incidentally referred to at this time. See an able article on Estoppel of Tenant to deny his Landlord's Title, in American Law Review, October, 1871 ; Bigelow on Estoppel (4th ed.), ch. xiv. ; Notes to Moss v. Gallimore, and Duchess of Kingston's case, 2 Smith's Lead. Cas. (8th ed. ) ; and an elaborate opinion by Woodruff, J., in Moffat v. Strong, 9 Bosw. (N. Y.) 57. 2 Thus payment of rent by the ten- ant to a mortgagee claiming under a mort- gage prior to the lease and who has at that time a right of entry, is a sufficient defence in an action for rent by the landlord. Magill v. Hinsdale, 6 Conn. 469 ; Cham- bers v. Pleak, 6 Dana, (Ky.) 428 ; Smith v. Shepard, 15 Pick. (Mass.) 147 ; Stone v. Patterson, 19 id. 476 ; Welch v. Adams, I Met. (Mass.) 494; George v. Putney, 4 Cash. (Mass.) 355 ; Jones v. Clark, 20 Johns. (N. Y.) 61; Sinters v. Saltus,, 3 Den. (N. Y.) 216; Greono v. Munson, 9 Verm. 37 ; Pope v. Biggs, 9 Barn. & Cress. 245. See Mayor of Poole v. Whitfc, 15 Mees. & Wels. 577 ; Waddilove v. Barnett, 2 Bing. N. C. 538 ; Franklin v. Carter, 1 Com. Bench, 760 ; Graham v. Alsopp, 3 Exch. 198 ; Doe v. Barton, II Ad. & Ell. 314. 189 § 142.] THE COVENANT OF WARRANTY. [CHAP. VIII. tion. 1 The exceptions to this application of the rule are suffi- ciently obvious. The analogy, therefore, if any really exist, is, according to the later cases, rather in favor of than against the doctrine now under consideration. And secondly, it would seem clear that the reasons in favor of a somewhat rigid adherence to the rule that a tenant shall not dispute his landlord's title lose their force when applied to a conveyance purporting to pass the whole estate of the grantor and to leave no reversion in him. 2 For the relation of landlord and tenant imposes upon both parties greater rights and obli- gations than that of vendor and purchaser. 3 There seems no obligation of allegiance and loyalty on the part of the latter towards the title he has received. The mischief to which, as between landlord and tenant, the absence of such a rule must lead, would evidently be that a tenant, having obtained the pos- session from his landlord, could betray it to another, and thus drive the former to an ejectment to regain the possession, and no landlord would ever be safe from the prospect of litigation. 1 Thus in Eoss v. Dysant, 33 Pa. 454, it was said : " Nor is it necessary for the tenant to be actually removed from the premises to give him a good defence against rent. Writs of habere facias possessionem are well executed when the tenant attorns to the plaintiff therein. And the taking of a lease or contract of purchase under pressure of such writ, where there is no fraud or collusion, is an actual eviction in law, which dissolves the relation between the tenant and his original landlord." Nor need the pressure be that of a writ. " If a party," said Chief Baron Pollock, " having a good right to eject the occupier of demised premises, goes there and de- mands to exercise that right, and the ten- ant says, ' I will change the title under which I now hold, and will consent to hold under you,' that, according to good sense, is capable of being well pleaded as an expulsion." Mayor of Poole v. Whitt, 15 Mees. & Wels. 577 ; and see accord. Morse v. Goddard, 13 Met. (Mass.) 177 ; George v. Putney, 4 Cush. (Mass.) 354 ; Clapp v. Coble, 1 Dev. & Batt. Ch. (X. C.) 177 ; Bigelow on Estoppel (4th ed.), 464, 465. 2 Thus the rule would never be ap- 190 plied to the case of one who had received a conveyance in fee containing a reser- vation of a ground-rent to the grantor. Brown v. Dickerson, 12 Pa. 372. The case of Naglee v. Ingersoll, 7 id. 185, will, on examination, be found not to con- tradict this. "The fourth plea," said Bell, J., "is either a nil habuit in tene- inentis, which in covenant is bad on de- murrer, or it is tantamount to a plea of eviction. But neither of the latter pleas set out the name of the evictor, or allege that he entered upon the defendant's pos- session by virtue of a lawful title acquired before or at the time of the grant to the defendant. This averment is absolute- ly essential to the sufficiency of such plea." 3 Blight v. Rochester, 7 Wheat. (S. C. IT. S.) 548 ; Walden v. Bodley, 14 Pet. (S. C. U. S.) 156 ; Watkins v. Holman, 16 id. 54 ; Page v. Hill, 11 Mo. 149 ; Osterhout v. Shoemaker, 3 Hill, (N. Y.) 518 ; Kenada v. Gardner, 3 Barb. S. C. (N. Y. ) 589 ; Averill v. Wilson, 4 id. 180 ; Bigelow v. Finch, 11 id. 500 ; James v. Patterson, 1 Swan, (Tenn.) 311 ; Win- terbottom v. Ingham, 7 Q. B. 611. § 143.] THE COVENANT OP WARRANTY. [CHAP. VIII. Hence the tenant's obligation to restore to him the possession. 1 But, as between vendor and purchaser, there can be no such dan- ger. By the contract, as intended to be fulfilled, the title and possession leave the vendor never to return to him, and with the execution of the conveyance, as a general rule, all the rela- tions between the parties cease, except those arising from the purchaser's obligations with respect to the unpaid purchase-money and his rights upon the covenants which he has received. § 143. Hence it may safely be said that in those courts which hold that a constructive eviction is caused by a tenant being obliged, on pain of dispossession, to accept a lease under the paramount title, it would a fortiori be held that a constructive eviction, amounting to a breach of the covenants of warranty or for quiet enjoyment, would be caused by the purchase of such title, by whomever might be entitled to the benefit of the cove- nants, and such would appear to be the present general course of decision. In the early case in New York of Waldron v. McCarty, 2 the plaintiff, in an action on the covenant of warranty, averred that at the execution of the deed to himself the premises were incum- bered with a mortgage, that they were afterward sold under a decree of the Court of Chancery for the principal and interest due on the mortgage, and that he had been obliged to purchase them in order to prevent his being deprived and ousted of the same ; to which the defendant demurred, and the demurrer was sustained, Spencer, J., who delivered the opinion, saying, " In good sense, the covenant for quiet enjoyment has reference merely to the undisturbed possession, and not to the grantor's title. In the present case, judging from the deed, it was never the intention 1 Or, as has been well expressed in Judge with public policy and private faith, and Hare's note to the Duchess of Kingston's would lead a prudent owner to consider case, "A recovery cannot be had in eject- the loss and inconvenience which might ment without proof of title and may be result from keeping his property in his defeated by proving an outstanding title own hands preferable to the risk involved in a third person. The effect of allowing in placing it in the hands of a tenant. a tenant to deny the right of the landlord When therefore possession is obtained un- would be to take the estate from the lat- der a lease, the lessee is estopped from ter and confer it on the former whenever keeping the land in derogation of the there was a defect either in the title itself agreement under which it was acquired." or the evidence brought forward to sustain 2 Smith's Lead. Cas. (8th Am. ed.) 902. it. The law consequently does not tolerate 2 3 Johns. (N. Y.) 471. a course which is equally inconsistent 191 § 143.] THE COVENANT OF WARRANTY. [CHAP. VIII. of the grantor to covenant that the lands were free from incum- 1 trance. From precedents, and as no authority has been shown that the covenant for quiet enjoyment is broken by any other acts than an entry and eviction or a disturbance of a possession itself, we are of opinion that the demurrer is well taken." This decision, however, is no longer recognized as authority in New York, or sustained by the weight of authority elsewhere. Thus in Sprague v. Baker, 1 where one who having received land with covenants for quiet enjoyment and of warranty paid the amount of a mortgage upon being threatened by the mortgagee to sue for possession of the premises under it, it was held that there was " nothing to distinguish this case from that of Hamilton v. Cutts 2 but a point of form which does not affect the merits of the question. The plaintiff has been disturbed in the enjoyment of his possession, and he has been compelled to purchase in an- other title for his own security, which we think very clearly has been a lawful interruption and a breach of the covenant for quiet enjoyment." So in a more recent case in Pennsylvania, a mortgagor con- veyed the premises bound by the mortgage, reserving to himself a ground-rent, and covenanting that the purchaser should at all times thereafter freely, peaceably, and quietly have, hold, and enjoy the premises, without any molestation, interruption, or eviction of the grantor or his heirs, or any one claiming under him or them, or by or with his or their acts, means, consent, or procurement. The purchaser sold to the plaintiff's, who upon the premises being advertised at sheriff's sale under proceedings on the mortgage purchased them and took a deed therefor, 3 and this was held a sufficient eviction to entitle the plaintiffs to recover. 4 1 17 Mass. 590. sion from the premises, or some actual 2 4 Mass. 350 ; supra, p. 175. disturbance of the possession (2 Sugden 8 It will be observed that the facts in on Vendors, 10th ed., 514-522), by reason this case were almost identical with those of some adverse right existing at the in Waldron v. McCarty, supra, p. 191. making of the covenant, not of one subse- 4 Brown v. Dickerson, 12 Pa. 372. "It quently acquired. Ellis v. Welch, 6 Mass. is true," said Burnside, J., who deliv- 246. Proof of the demand of possession ered the opinion of the court, "that the on a superior right will not be deemed suf- covenant for quiet enjoyment goes more ficient on which to found the action ; to particularly to the possession than to the maintain it, the plaintiff must exhibit an title. Hence, to have a breach of it, or- assertion and proceeding on that title, an dinarily, it is necessary to give evidence ouster or disturbance by means of it ; but of an entry upon the grantee, or of expul- a technical ouster on a judgment at law is 192 143.] THE COVENANT OF WARRANTY. [CHAP. VIII. So in Massachusetts, where the facts were similar, the court said, " The premises were offered for sale at public auction, and if the plaintiff had not become a purchaser he had a right to pre- sume that he should be dispossessed by the purchaser, and he was justified in acting upon that presumption, and the defendant could not be thereby injured; for undoubtedly if the plaintiff had not become a purchaser, he would have been evicted if he had refused to yield possession, and in such case the defendant would be re- sponsible for the costs of suit in the action against the plaintiff as well as for the value of the land, if duly notified of the pendency of the action." * The same doctrine has been recognized and ap- plied in many other States, and is supported by the weight of both reason and authority. 2 not absolutely necessary. 2 Or<»pnl. Ev. § 243. Here, one of the plaintiff's was out of possession ; and the other, in order to retain the possession, was forced to pur- chase at the sheriff's sale, and that to pre- vent such an ouster as would have kept him out forever. The rule as settled in Waldron v. McCarty, 3 Johns. 464, has not met the approbation of the profession in many States of this Union," and the more modern cases were then cited. 1 Whitney v. Dinsmore, 6 Cush. (Mass.) 124. The early New York cases of Wal- dron v. McCarty, Kortz v. Carpenter, &c, were relied on by the defendant, but the court said : "However this may be, we con- sider the law well settled in this Common- wealth, and we see no reason for adopting the doctrine laid down in the cases cited from the New York reports. The ques- tion is whether in all cases a party must wait until he is actually evicted or ousted, before he can have the benefit of the cove- nant of warranty. We hold that there may be other acts of the party having a paramount title, which may be equivalent to an evirtion. In the case of Duvall v. Craig, 2 Wheat. (S. C. U. S.) 45, it was held that if a grantee is unable to obtain possession in consequence of an existing possession or seisin by a person claiming or holding under an elder title, it is equiv- alent to an eviction. And so we think, if the grantee is in possession and a claim is made on him by a party having a title, against which he is unable to defend him- 1.3 self, he may yield to a dispossession or purchase in the paramount title ; and the present case, we are of opinion, depends on a similar principle." 2 Donnell v. Thompson, 1 Fairf. (Me.) 170 ; Kelly v. Low, 18 Me. 244 ; Cole v. Lee, 30 id. 392 (see this case noticed, infra) ; White v. Whitney, 3 Met. (Mass.) 81 ; Bemis v. Smith, 10 id. 194 ; Easta- brook v. Smith, 6 Gray, (Mass.) 572; Furnas v. Durgin, 119 Mass. 500 ; Stew- art v. Drake, 4 Halst. (N. J.) 139 ; Haffey v. Birchetts, 11 Leigh, (Ya.) 88 ; Dupuy v. Boebuck, 7 Ala. 488 (see this case noticed more particularly, infra) ; Gunter v. Williams, 40 id. 572 ; Lane v. Fury, 31 Ohio, 574; Tuite v. Miller (Ohio),' 5 West. Law Journal, 413 (and see King v. Kerr, 5 Ohio, 154, whose decision, it was said in Johnson v. Nyce, 17 id. 69, in- fra, was controlled by the local " occu- pying claimant law") ; Harding v. Larkin, 41 111. 422 ; McConnell v. Downs, 48 id. 271 ; Claycomb v. Munger, 51 id. 374 ; Crance v. Collerbanak. 47 Ind. 256 ; Moo- ney v. Burchard, 84 id. 285 ; Nolan v. Feltman, 12 Bush, (Ky.) 119 ; Morgan v. Hannnibal R. R., 63 Mo. 129 ; Dyer v. Britton, 53 Miss. 270 ; McGary v. Has- tings, 39 Cal. 360. The application of the principle stated in the text to the facts in the recent case of Lane v. Fury, supra, is noteworthv. The plaintiff be- low having been sued lor the possession of certain lands by the heirs of her cove- nantor's grantor — a married woman, whose 193 § 143.] THE COVENANT OF WARRANTY. [CHAP. VIII. In Mississippi, a stricter rule has long prevailed and it is there held that " in order to sustain an action on the covenant of gen- deed was void for want of a proper ac- knowledgment — notified her covenantor to defend, and having obtained in a col- lateral proceeding a decree curing the defective acknowledgment and thereby- barring a recovery by the heirs, brought suit on the covenant of warranty and re- covered from her covenantor her expenses for attorney's fees, copies of records, and attending trials. Affirming this judgment, the Supreme Court said : "If the para- mount title is so asserted that the grantee must yield to it or go out, he may pur- chase of the true owner, and this is an eviction which will constitute a breach of such covenant. Nor is it necessary that the paramount title be actually established by judgment or decree. What the law re- quires is that it be distinctly recognized. And what could be a more marked recog- nition of it than (the plaintiff below) made when she asserted it specifically, in legal form, in her petition to correct the de- fective acknowledgment ? And if under the circumstances existing when the peti- tion to reform was filed [she] might have bought in the paramount title and recov- ered from [her covenantor] any reasonable amount paid therefor, why may she not recover from him the costs and expenses, including counsel fees, in the two suits ? Looking to the substance as well as the form of the transaction, it was a mode of getting in the legal title, and we can per- ceive no reason for a different rule in the latter case from that which prevails in the former. Such a course, moreover, will ordinarily be greatly to the advantage of the grantor ; for the expense of correcting such a mistake will, as a general rule, be far less than the holder of the paramount title would demand, and far less than the damages the grantee would be required to pay when the grantee is turned out of possession. ... If in holding that this petition is sufficient, we go somewhat fur- ther in sustaining such actions than this court has found it necessary heretofore to go, we are supported, nevertheless, by rea- son and authority." In Leary v. Durham, 4 Ga. 593, after 194 land had been conveyed with a general cov- enant of warranty, the widow of a former owner made application, under the local statutes, for an admeasurement and assign- ment of dower, upon which commissioners were regularly appointed and their re- turn was made the judgment of the court, which directed a writ of possession to be issued upon application of the demandant. The plaintiff (the assignee of the cove- nantee) rested his case here, with proof that the injury to the land was four or five hundred dollars, and that his cove- nantor had notice of the pendency of these proceedings. On the trial, the court oi'dered a nonsuit, on the ground (among others) that there, had been no eviction. But the judgment was reversed by the Supreme Court, on the ground that the tenant's surrender, though the record did not show that a writ of possession had ever issued, was justified by the judgment in the proceedings in dower, and that ac- cordingly he was entitled to damages not merely nominal but such as a jury should assess for actual injuries incurred. It may, however, be doubted whether the judg- ment of nonsuit in this case was not properly entered. The plaintiff had not proved that he " had surrendered volun- tarily," or that he had paid four or five hundred dollars (as in Donnell v. Thomp- son, 1 Fairf. (Me.) 170, and Tuite v. Mil- ler, 5 West. Law Journal, 413 ; Davis v. Logan, 8 B. Mon. (Ky.) 342, was a suit in equity, where all the parties to the title being before the court, there was a general adjustment of title and settlement of damages) : but merely that by the pro- ceedings the market value of the land was diminished by that amount, so that upon a resale he would be obliged to dis- charge the incumbrance, or have its price deducted from the purchase money; Until these events had actually happened, it would seem that he had no right to more than nominal damages ; infra, Ch. IX. The case seemed to lean in favor of making the covenant of warranty as com- prehensive as possible, and the course of decision in South Carolina, where an § 143-] THE COVENANT OF WARRANTY. [CHAP. VIII. eral warranty there must be either an actual eviction by judicial process, or a surrender of possession to a valid title asserted against the covenantee, or a holding of the grantee out of posses- sion by such title so that he cannot enter." l The grantee who buys in the paramount title has, however, in that State an action of assumpsit for money paid to the use of his covenantor, 2 which serves the same purpose as an action on the covenant, and there- fore the courts, though conceding the validity of the principle al- ready stated, have not thought it necessary to adopt it. 3 eviction is held unnecessary to a breach of this covenant, was cited with appro- bation. Indeed, the precise point decided in Leary v. Durham arose in a rather recent case in the latter State, where it was held that the mere assignment or assessment of dower constitutes a breach of the covenant of warranty. Lewis v. Lewis, 5 Rich. L. (S. C.) 12. But it will be remembered that in South Caro- lina the covenant of warranty is, in ac- cordance with a long course of decisions there, treated as a covenant for seisin. See Mackey v. Collins, 2 Nott & McC. (S. C. ) 186; and see also Williams v. Weatherbee, 1 Aik. (Verm.) 240. The very recent case, however, of Amos v. Cosby, 74 Ga. 793, came more within the line of modern authority. The plaintiff having purchased from husband and wife a "homestead property" with covenants of warranty from both, afterward paid an incumbrance under which a levy had been made, and it was held that this was a constructive eviction. 1 Dyer v. Britton, 53 Miss. 270. In this case the defendant having mortgaged the land to one Goff conveyed it with a covenant of warranty to the plaintiff's grantor. Goff filed a bill of foreclosure, and the decree under it ordered a sale unless the mortgage debt was paid. The plaintiff, who had purchased the land prior to the foreclosure proceedings, there- upon paid the debt and brought suit on the covenant. But the court held that though the covenant ran with the land, it had not been broken, and that the action would not lie. Such had been the decision more than thirty years before in Witty v. Hightower, 12 Sui. & Marsh. 478, where the facts were nearly the same ; and after- wards in Burrus v. Wilkinson, 31 Miss. 537, the court had said, " Until the pur- chaser has yielded possession to the supe- rior title and been dispossessed thereof, the contract of purchase must be consid- ered as in existence, and any outstanding title acquired by him cannot amount to an eviction, but will be treated as a pur- chase of an outstanding title, which can- not be used in disparagement of the title derived from the original purchaser." 2 Kirkpatrick v. Miller, 50 Miss. 521. 3 " If the question were res Integra," said the court in Dyer v. Britton, 53 Miss. 270, supra, "we should adopt the reasoning and conclusions of that line of decisions which have admitted construct- ive or equitable evictions as of equal im- port with an actual ouster in certain cir- cumstances. We fully concede the force and justice of the argument that if the vendee in good faith pays off a foreclosure decree, which if executed would destroy his estate and evict him from the land, he should have indemnity by suit on the covenant of the warrantor. ... If we did not have in our jurisprudence a principle which is equitable and just, we should not hesitate to overturn [former] decisions if they were the obstruction. But we have in the remedial machinery of our jurisprudence full practical and adequate remedy and redress for the covenantee to reimburse him for the outlays in extin- guishing such incumbrances, or in totting in the adverse paramount title. He may recover the money back in the action of assumpsit, as in Kirkpatrick i: Miller, 50 Miss. 521, [supra,] or he may sue in chancery." 195 144.] THE COVENANT OP WARRANTY. [CHAP. VIII. § 144. There are some decisions which, at first sight, do not appear to be in accordance with the more modern doctrine, and some dicta which are not reconcilable to it, but it is believed to be supported by the weight of modern authority. 1 1 In Hannah v. Henderson, 4 Ind. 174, the facts were much the same as those in Waldron v. McCarty, supra, p. 191, and the court considered that "the mere ex- istence of the better title could not have constituted an eviction of the plaintiff. If he had yielded to it by giving up pos- session, or bought it in and continued his possession under it, the action might have been sustained," but it was decided that "the mere payment of the judgment to avoid a sacrifice of the land on execution, and even a consequent eviction, will not authorize a suit against the grantor on the covenant." In Reasoner v. Edmundson, 5 Ind. 393, although the mortgage had been foreclosed, and the premises bought in by the mortgagee, yet no sheriffs deed had been made to him, and there was no evidence that the plaintiff had either yielded up the possession or purchased the mortgagee's title, and it was hence properly held that there had been no eviction. To the same effect is Mason v. Cooksey, 51 id. 519. In Hunt v. Amidon, 1 Hill, (X. Y.) 147, s. c. 4 id. 345, the defendant had, for the consideration of $1,200, sold to the plaintiff's grantor, with a covenant of warranty, premises which were then incumbered by a mort- gage, under foreclosure of which the prem- ises were afterwards sold and bought for S 470 by the plaintiff, who then brought an action of assumpsit for money paid to the vendor's use, and recovered judgment, which was affirmed on error and is in harmony with the more recent case of Cowdrey v. Coit, 44 N. Y. 382, and with the main current of decision. But Wal- worth, Ch., delivering the opinion of the court above, said obiter: "It is at least doubtful whether an action at law could have '"in sustained upon this covenant for quiel enjoyment without showing an actual eviction. And I admit that under such a covenant the grantee of the land has no right to give it up voluntarily to a stranger who claims by title paramount, 196 or even to pay off an alleged incumbrance without suit, and then resort to his action upon the covenant in the deed." The remark that the grantee has no right to give up voluntarily to a stranger who claims by title paramount, is entirely jus- tified by the authorities (see infra) ; and the expression, "or even to pay off an alleged incumbrance without suit," must, it is apprehended, be referred to the same meaning ; for it is generally held that although it is absolutely necessary that the adverse claim should be hostilely as- serted, yet that it is not necessary that the assertion should be made by a judg- ment, or even a suit, any more than it is necessary that an eviction, when actual, should be under legal process, and the effect of a judgment, a decree, or a suit is in this relation no more than an unequiv- ocal assertion of the right by the para- mount claimant (see infra). The inaccu- racy of this dictum is noticed by Edmonds, J., in Fowler v. Poling, 6 Barb. (N. Y.) 168, who after a rapid review of the cases reaches this conclusion : " From these conflicting authorities I deduce the true rule in this State to be that there must be an actual disturbance of the possession, and that where the covenantee is actually out of possession, either by due process of law, or by an entry of the rightful owner, or by a surrender to one having the para- mount title, there is an eviction ; the cove- nant is broken and an action will lie." In this case, the purchaser had, at the in- stance and request of his vendor, insti- tuted proceedings in partition between himself and the holders of the paramount title (the latter having a title to an undi- vided part of the land), and had their share set off to them in severalty and sur- rendered possession to them. Under these circumstances, it was obviously held that there was an eviction pro tanto, and the remarks as to the purchaser being " actu- ally out of possession," would seem not to be necessary to the decision. In the § 146.] THE COVENANT OF WARRANTY. [chap. VIII. § 14:5. It may perhaps be said that there should be a distinc- tion taken between a lease and a purchase of the paramount title by the covenantee, inasmuch as in case of a lease it is, in legal construction, the holder of the paramount title who is in posses- sion, the possession of the tenant being that of the landlord, while in case of a purchase the possession remains in the covenantee. To this it may be answered, that although in the latter case the covenantee in reality remains in possession, yet he is supposed to have been actually ousted, whereby all connection with his former title is dissolved, and then to have been reinstated under the paramount title. 1 § 146. In all the foregoing cases the purchase of the paramount title had been made after the establishment of the latter by a judgment or decree. But as it has already been seen that the authorities as to ouster in pais draw no distinction, save as to burden of proof, etc., between cases where the title has or has not been thus first established, so it will be found that no such dis- tinction is taken as to constructive eviction ; 2 and it is now held later case of Bordewell v. Colie, 1 Lans. (N. Y. ) 146, the decisions in Massachu- setts were cited with approbation. In Pennsylvania, after some diversity of de- cision (Paul v. Witman, 3 Watts & Serg. 407 ; Poyntell v. Spencer, 6 Pa. 257 ; Knepper v. Kuntz, 5S id. 480), the law has been settled in accordance with mod- ern authority. Brown v. Dickerson, 12 Pa. 372, supra, p. 192. 1 Poyntell v. Spencer, 6 Pa. 257. It seems hardly necessary to remark that in every case in which an eviction would be held to be caused by the purchase of the paramount title, the damages would be measured by the amount which had been fairly and bona fide paid for this pur- pose, and could never exceed that sum. 2 That is to say, no distinction is made as to a yielding up of the possession when the paramount title has, or when it has not, been established by a judgment or decree, it being sufficient that its holder has either the right to obtain possession himself, or to deprive the purchaser of it ; the only difference being that when there is no such judgment the covenantee re- tires at his peril, with the burden of prov- ing that the adverse title was one to which be would have been compelled to yield. Where there is a judgment it is held by some authorities to be prima facie evi- dence, and when the covenantor has proper notice of the action it is conclusive evi- dence of the better title. To the objec- tion that the absence of a judgment leaves open the door to fraud, it may be replied that a judgment is so far from being an insuperable barrier to fraud as often to prove the most convenient and insidious means for its introduction, — a fact well recognized as having an important influ- ence on the finality of a judgment. Ob- viously, on the presentation of a prima facie and undisputed right a court must give judgment without further scrutiny of the case, but it may always be impeached for fraud ; Wilson v. McEhvee, 1 Strob. (S. C.) 66 ; and this alone prevents it from becoming in general an intolerable instru- ment for fraudulent purposes. The ad- vantage to be obtained, however, from a collusive judgment in an action on the covenant of warranty can always be coun- teracted. The object of the covenantee in suffering such a judgment is to enable him- self to buy in the paramount title at a low price, and then recover from the covenantor 197 § i*s.] THE COVENANT OF WARRANTY. [CHAP. VIII. that a purchase by a covenantee -of an outstanding paramount title, when that title is actually and hostilely asserted, will consti- tute such an eviction as will entitle him to damages upon his covenants for quiet enjoyment or of warranty, measured by the amount he has thus paid. Thus in a case in New Hampshire, the plaintiff, in his action on the covenant of warranty, proved a prior conveyance by his covenantor of part of the premises to other parties. The land was wild and without actual possession. Upon the death of one of the prior grantees, his interest in the land was sold by his ad- ministrator at public sale and purchased by the plaintiff, and it was held that these facts constituted an eviction. 1 So in a later the full consideration paid for the prem- ises. But by limiting the damages, as is done in the case of the covenant against incumbrances, to the actual amount thus paid, every temptation to fraud is pre- cluded, and the covenantor is always al- lowed, in mitigation of damages, to give evidence of what the plaintiff has paid to buy in the outstanding title. Tufts v. Adams, 8 Pick. (Mass.) 550 ; Cole v. Lee, 30 Me. 392. And if the amount which he has thus paid be a nominal one, his dam- ages will be nominal also. Le.ffingwell v. Elliot, 8 Pink. 457 ; s. c. 10 id. 204 ; Loomis v. Bedel, 11 N. H. 87. There are dicta to a contrary effect in Martin v. At- kinson, 7 Ga. 237. Even where there is no pretence of fraud or collusion, there seems but a single case in which, in the action on the covenant, the whole question of title cannot be gone into, and that is where the party bound by the covenant refuses, upon proper notice, to come in and de- fend. Having thus, by his own laches, lost the advantage of trying the question of title then, he must suffer for his neglect afterward ; and even under these circum- stances the plaintiff is obliged to prove that the adverse title is not one derived from himself. i Loomis v. Bedel, 11 N. H. 74. " If the claimant holding the paramount title lid enter upon the land, and the grantee should thereupon yield up the ssion, he would immediately have a right of action upon the covenant of war- rantv in his deed ; and this right would 198 not be barred or forfeited should he forth- with purchase the premises from the claim- ant, to whose superior title he had thus yielded the possession. He might, on such purchase, immediately re-enter into the possession, and still maintain his action on the covenant. If, instead of this formality, he yields to the claims of a paramount title, and purchases without any actual entry of the claimant under it, where is the substantial difference ? For all practical purposes, his title under the grant to which the covenant is attached, and under which he originally entered, is as much defeated in the one case as in the other. He is, in fact, dispossessed, so far as that title is concerned. He is still in possession, but he is so under another title, adverse and paramount to his for- mer one ; and his purchase is, therefore, equivalent to an entry of the claimant. It is an ouster by his consent, and a re- entry by himself, under the superior title, without going through with what would be at best a mere formality, where, con- scious of the defect of the title under which he originally entered, he chooses to yield peaceably to the assertion of a better title and to purchase it. The grantor who conveys a defective title, with a covenant of warranty, has no reason to complain of this. No action can be main- tained against him upon his covenant in such case except upon proof of the actual existence of a title superior to the one he conveyed, and which his grantee could not withstand at law ; and if that proof 147.] THE COVENANT OP WARRANTY. [CHAP. VIII. case in Vermont, the purchaser, having been sued by the holder of the paramount title, bought in that title before final judgment and in order to prevent being dispossessed of the land, and it was held that this was an eviction ; 1 and the weight of modern authority is to the same effect. 2 § 147. There are a few cases whose language might admit of misconstruction, and which, therefore, it seems proper to notice here. Thus in a case in Kentucky, it was broadly said, " It could not be disputed that if a vendee, before eviction, purchase in an out- standing paramount title, he cannot continue in possession under his first purchase, and claim damages as for a breach of war- ranty, on account of the title he has acquired." 3 In a previous is made out, with evidence that the title was asserted and yielded to, why should he be permitted to insist there must be a formal surrender of the possession, or actual entry, and that if this was not done there could be no breach of his covenant ? How would his interests be benefited by the going out and going back again ? The ouster, so far as holding under his title is concerned, is as effectual by a purchase without actually leaving the premises as it could be by peaceably leaving tliem, or even by an expulsion through the opera- tion of legal process. Sprague v. Baker, 17 Mass. 590." The judgment below in this case was, however, properly set aside on the ground of the measure of damages, the court saying that there was no evi- dence of the amount which had been paid by the plaintiff for the purchase of the property, and that his damages must be measured by that amount unless it exceed the value of the land. 1 Turners. Goodrich, 3 Deane, (Verm.) 709. "We have now the case," said Red- field, C. J., who delivered the opinion, "of a suit brought by one having an elder and better title, and before final judgment the covenantee, to prevent being dispos- sessed of the land, purchases in the title at a fair rate. This, no doubt, in justice and moral equity, is the same thing as eviction. When he is in possession of the land, and the suit is brought, or the title asserted in any way. perhaps, whereby it becomes impossible for the covenantee longer to maintain his possession, it is the same thing whether he yields without suit or after judgment to a writ of seisin and possession, or buys in the outstanding title at a fair rate. Of course, if he yields to a claim of title without suit or without judg- ment or notice to the covenantor to defend his title, he assumes the burden of showing the title to which he yields good, and so also if he purchases in the outstanding title ; and in either case he must rebut all possible implication of collusion. But this is matter of evidence, and when es- tablished it should, and as we regard the recent decisious does, constitute a breach of the covenants of warranty, and entitles the party to recover the amount paid to obtain the title, and all expenses necessary in the premises, which must extend to the costs of the suit, while pending, and coun- sel fees. Pitkins v. Leavitt, 13 Verm. 379." 2 Amos v. Cosby, 74 Ga. 793; Eoyer v. Foster, 62 Io. 191 ; Walker v. Deane, 79 Mo. 664 ; Kramer v. Carter, 136 Mass. 504 ; Clark v. Munford, 62 Tex. 531. 3 Vanmetre v. Griffith, 4 Dana, (Ky. ) 92. This case was, however, correctly de- cided. One who had received land with covenant of warranty contracted with the paramount owner to buy in his title, in case it should prove, on legal investigation, to be the better one. Suit was brought against the covenantee, and notice given to the covenantor. Judgment was entered in favor of the paramount title by con- fession, and on a writ of possession the sheriff indorsed that he had delivered the 199 § 147.] THE COVENANT OP WARRANTY. [CHAP. VIII. case * it had been laid down by the court that " if a vendee acquire a paramount title under such circumstances, the most he can do in equity is to show the advances made, and claim to be considered as the agent and trustee of the vendor in acquiring the adverse title, or (if the vendor refuse so to consider him) to surrender the possession acquired from him and use the newly purchased title in warfare. He cannot continue in possession, and set up the new title in hostility to the old " But this language proceeds upon a misapplication of the familiar principle in equity that if a mortgagee, executor, trustee, tenant for life, etc., who have a limited interest get an advantage by being in possession, or " behind the back " of the party interested in the subject matter, he shall not retain it for his own benefit but hold it in trust. 2 This, however, it is believed, was never applied to the case of a purchaser, with reference to his remedy on the covenants for title, as he can have no interest in setting up or procuring an adverse title except for the simple purpose of his own protection, and this protection the vendor has expressly covenanted to afford. The mistake has arisen from forgetting that the measure of damages is not, in such cases of purchase, the consideration money and interest (which would open every door to fraud), but simply the amount which has been paid to purchase the paramount title. 3 possession to the plaintiff's agent who 2 Nesbitt v. Tredennick, 1 Ball & then delivered it to the covenantee, and Beatty, (Irish Ch.) 46 ; Holeridge v. Gil- the latter then sued the representatives of lespie, 2 Johns. Ch. (N. Y.) 33 ; Burhans his covenantor, who had died in the mean v. Van Zandt, 7 Barb. S. C. (N. Y.) 102. time, and judgment was confessed for the 3 Indeed, the cases of Venable v. Beau- amount of the original purchase money champ, 3 Dana, (Ky. ) 323, and Coleman with interest. For part of this judgment v. Coleman, id. 403, decided no more than one of the administrators gave his own that one tenant in common could not, be- note and paid the balance, and then upon fore eviction, purchase in an outstanding discovering the contract which had been title to the prejudice of his co-tenant, but made between the covenantee and the par- that the purchase must enure jointly to amount owner and that the amount paid both. The case of Woodward v. Allan, 3 by the former for the paramount title was Dana, (Ky. ) 164, though perhaps more less than the judgment which he had re- properly classified under the preceding covered against the estate of the covenantor, head, may be referred to as showing that filed a bill to restrain the collection of the the law in Kentucky is in harmony with balance of the judgment, and to refund the more modern authorities elsewhere, the excess over the amount thus paid by There was an express covenant for return the covenantee. The Chancellor under of the consideration money if the land these circumstances most properly de- should be lost. " If it be admitted," said creed for the complainant, and the Court Robertson, C. J., "that a covenant to be of Appeals affirmed the decree. responsible if the land is lost is tantamount 1 Morgan v. Boone, 4 T. B. Mon. (Ky.) to a covenant of general warranty, and 297. that, therefore, an eviction would be indis- 200 § 148.] THE COVENANT OP WARRANTY. [CHAP. VIII. § 148. It may also be observed that cases sometimes occur where courts of equity have brought before them the whole ques- tion of title and all the parties are before the court. This per- haps most frequently happens in the marshalling or administration pensable to the plaintiff's right to main- tain this action, still we are clearly of the opinion that he proved on the trial every fact that was necessary to entitle him to a judgment. He exhibited a judgment of eviction in an action of ejectment, and proved that the defendant as well as him- self was a party to the ejectment, that the judgment was for the land embraced by the covenant, and that he had, after the judgment, surrendered to one of the lessors and leased the land of him." In Johnson v. Nyce, 17 Ohio, 66, the declaration averred a right of dower in the widow of a prior owner of the property, and upon her petition for dower being filed, the covenantee took defence, "and such proceedings were had therein, that afterwards, in November term, dower in all of said lands and premises was duly assigned and confirmed unto the said J. M. at the gross sum of $137.50, which the plaintiff was thereby ordered to pay to the said J. M., in full for her dower, etc., in sixty days after said November term ; and, in default thereof, that execution issue as upon judgments at law, by means whereof the plaintiff has paid and been liable to pay a large sum of money," etc. On de- murrer, it was held that this was no evic- tion. "We do not doubt," said Hitch- cock, J., "that the covenant in the deed is sufficient to cover a claim for dower, provided the same be prosecuted to such a result that the covenantee is thereby de- prived of even the temporary possession of the whole or any part of the land conveyed. It may be thought that a covenant against incumbrances is the appropriate covenant to meet such a case, but it is equally well met by the covenant of warranty. In order, however, to maintain an action upon the latter covenant, there must, as a general rule, have been an eviction, and this fact should appear from the declara- tion." The case of Tuite v. Miller, 5 West. Law Journal, 413 (not Tuite v. Miller, 10 Ohio, 383), was then mentioned and approved. In that case, one third of the rents and profits of the land had been set off to the widow for her dower, and made a charge upon it, and it was ordered that, unless payment was made, the land should be sold. This was held ecmivalent to an eviction, as it was also in the more recent case of McAlpin v. Woodruff, 11 Ohio, 128. But it was said in John- son v. Nyce, that in the case then be- fore the court there had been no assign- ment of dower by metes and bounds, nor according to the local statute of one third of the rents. " The statute seems to have been entirely disregarded. True, a decree was made in the widow's favor against the plaintiff for $137.50, which was to be in full of dower. This, however, was not made a charge upon the land, and could in no shape act as an incumbrance upon it. It was a mere personal debt, to be enforced by execution. ... It had no operation to incumber the land. Had the one third part of the land been set off by metes and bounds, and the widow put in possession, or had dower been assigned according to the statute, as in Tuite v. Miller, then the plaintiff might have had redress on the covenant of warranty. But, as the case is now presented, he can have no such re- dress." This case should be read in con- nection with the one next reported, viz. Nyce v. Obertz, 17 Ohio, 71. The circum- stances were the same as in the previous case, except that the covenant sued upon was that against incumbrances, which was held not to be broken. See supra. It is evident, from an examination of these two authorities, that they were decided under special circumstances. The Supreme Court seem to have determined, owing to the apparent disregard of the provisions of the local statute as to dower by the court which had pronounced the decree, that no recovery should be had under these cir- cumstances upon any of the covenants for title. With this end, the case of Nyce v. Obertz, went very far. 201 § 150.] THE COVENANT OF WARRANTY. [CHAP. VIII. of assets, some of the instances of which will be hereafter referred to. 1 In these cases, where an equitable adjustment of all con- flicting claims can be made and compensation awarded, either by reference to a master, or if necessary, by issues of quantum dam- nificatus, the rule as to eviction is more relaxed, and it seems not necessary that even a payment to purchase the better title should have been made ; but the paramount right having been estab- lished, the amount of damages is equitably adjusted without mak- ing this essential. 2 Such cases however, it must be observed, are exceptional and occur perhaps only when all the parties to the title are before the court and their respective rights are capable of equitable adjustment. § 149. But it may be asked, what then is the practical distinc- tion between a covenant of warranty and a covenant for seisin or against incumbrances ? The answer to this is that the latter covenants assure the title, and the purchase of the adverse claim has nothing to do with their breach, however it may affect the measure of the damages. If the title be defective or if an incumbrance exist, the purchaser has a right of action which, as such, is not affected either bene- ficially or injuriously by the purchase of the paramount claim. Such a purchase merely affects the question of damages. And, moreover, the question whether the claim is or is not asserted, and if asserted to what extent, has nothing to do with the right of action — it is sufficient that such claim exists. § 150. But under the covenant of warranty, as usually ex- pressed, it must not be supposed that a purchaser can, as a general rule, buy in any paramount claim, and elect to consider himself evicted to the extent of the purchase money of such claim. However far the doctrine of constructive eviction has been carried, it is believed to be still absolutely necessary that the adverse claim should have been hostilely asserted. It is not necessary that the assertion should be made by a judgment or even a suit, any more than it is necessary that an eviction, when actual, should be under legal process. 3 The effect of a judgment, a decree, or a suit is, in this relation, no more than an unequivo- cal assertion of the right by the paramount claimant. According, therefore, to the weight of authority at the present day, the dis- i See infra, Ch. XV. 3 See supra, p. 132. 2 See infra, Ch. IX. and XIV. 202 § 150.] THE COVENANT OP WARRANTY. [CHAP. VIII. tinction is not whether there has or has not been a judgment in favor of the paramount claim, but whether such claim has or has not been adversarily asserted. 1 This is well illustrated by a case in Pennsylvania, where a cove- nantor having neglected to pay the purchase money due to the Commonwealth, it was voluntarily and without claim being made by the latter paid by the covenantee, who it was held was not under these circumstances entitled to recover upon his covenant of warranty, as the possession had never been disturbed or threat- ened. 2 So in a later case, the same court held that " until an 1 The difference thus sketched between these covenants was approved in the late case of Funk v. Creswell, 5 Clarke, (Io.) 89. "It will be found upon examina- tion," said the court in Morgans. Hender- son, 2 Wash. Terr. 367, "that the most ad- vanced of these cases have gone no further than to hold that a covenantee may yield to a paramount title hostilely asserted against the title conveyed to him by his grantor, and then avail himself of such a disposition as a breach of the covenant in question and may maintain an action thereon for such breach ; though of course by thus yielding, he places upon himself the burden of proving in such action that the title to which he has thus yielded is in fact a title paramount. And in our opin- ion the great weight of authority, both ancient and modern, is to the effect that this covenant is never broken until there has been some hostile assertion of a better title." 2 Patton v. McFarlane, 3 Pa. (old Pa., not Pa. St.) 419. "If a recovery iu this case upon the covenant of general war- ranty," said Kennedy, J., who delivered the opinion of the court, "can be sup- ported without either allegation or proof of an eviction, it would in effect be de- ciding that the covenant of general war- ranty contains within it each of these five covenants for title, which would be a novel idea to conveyancers and profes- sional men. ... It was the inaptitude of the covenant of general warranty to accommodate itself to the various inten- tions of the parties, as well as the circum- stances connected with the titles to the land, that first gave rise to these special covenants and recommended them to gen- eral use, which repudiates the idea of their being contained within it. . . . Although the Commonwealth had a claim against the land in the case under consideration, yet she had taken no step whatever, after the conveyance of it to McFarlane, to enforce the payment of the money. Whether she would have done so was un- certain, and Patton had a right under his covenant of warranty with McFarlane to avail himself of all the indulgence that might be given by delay on the part of the Commonwealth to proceed against the land, to have the money collected by a sale of it. Although it may be considered certain that the payment of the money would have been compelled some day or other, yet it might make some difference to Patton whether he was to be called upon immediately at the will of McFar- lane for payment, or to have it postponed to a distant day by forbearance on the part of the Commonwealth to proceed to collect it." So far, however, as this case approved Waldron v. McCarty, 3 Johns. (N. Y.) 417, it should be observed that that case has been since distinctly overruled in Pennsylvania (Brown v. Dickerson, 12 Pa. 372), as well as else- where (see supra, p. 193, n. 1), and would not be recognized as law at the present day in New York. Hunt v. Amidon, 4 Hill, 349 ; Fowler v. Poling, 6 Barb. S. C. 168. So in a case in Missouri, Shelton v. Pease, 10 Mo. 482, it was said : "The covenant declared on is to warrant and defend the title and possession against all liens, and especially against the incum- brance specified in the deed. There is no 203 § 150.] THE COVENANT OP WARRANTY. [CHAP. VIII. eviction of the grantee, or a demand made of the land from him by one having a better title for it, the covenant of warranty could not be said to be broken ; 1 and more recently, that " there must be proof at least of an involuntary loss of possession." 2 So in a covenant that the grantor will pay off the mortgage, nor is any such covenant im- plied by the covenant of general warranty. Nor is the payment of the mortgage by the grantee any breach of the covenant of general warranty or of the covenant of quiet enjoyment. It seems to be well set- tled that a disturbance of the possession is necessary to constitute a breach of these covenants. Among the numerous cases which are to be met with on this subject, both in the United States and in England, I have met with none in which a mere payment of money for the purpose of buy- ing in a paramount title or extinguishing a mortgage has been held to be a breach of the covenant of warranty." 1 Dickinson v. Voorhees, 7 Watts & Serg. (Pa.) 357. 2 Dobbins v. Brown, 12 Pa. 79 ; see this case noticed infra, § 152, p. 208. In Knepper v. Kurtz, 58 id. 482, real estate was devised to the testator's son, charged with the pa}^ment of certain legacies, and the devisee conveyed to the defendant, who agreed to convey the land to the plaintiff clear of all incumbrance, and afterwards delivered a deed to the latter containing a covenant of general warranty. The plain- tiff, on discovering the existence of the legacies, notified the defendant to discharge the same, and afterwards the plaintiff paid them himself and brought this action to recover the amount. The court below, whose opinion was affirmed in error, thus stated the law, in conformity with the text : " Outside of the legal profession, the covenant of warranty is regarded a panacea for every defect that can be al- leged against the title of the grantor, and scriveners, especially in the rural districts, rarely think of the necessity for any other. It was, doubtless, supposed in this, that the insertion of the covenant in the deed fully met the requirements of the articles of agreement providing that the land should be conveyed clear of incumbrances. There is, however, a very broad distinction 204 between a covenant of general warranty and a covenant against incumbrances. In the latter, where incumbrances exist, the covenant is broken as soon as entered into, while in the former the covenant is broken only by an eviction. In order to give the covenantee a remedy against his warran- tor, he must allege and prove an eviction, either actual or constructive. The evic- tion is actual when the covenantee is dis- possessed of the land, or when a judgment at law is rendered, which may result in actual dispossession ; and it is construct- ive where the covenantee, by reason of the paramount title, has never been able to obtain the possession ; or when, after the adverse title has been established, the covenantee has either purchased or taken a lease under such title, without any actual change of possession ; or where he has pur- chased or taken a lease, the adverse title not having been established. These in- stances of constructive eviction relate more particularly to cases where there is an outstanding paramount title, and not to cases in which the party may be dis- possessed by the enforcement of a lien ex- isting against the land conveyed. In the case at bar there was no eviction, in the legal sense of that term, either actual or constructive, which could give to the cove- nantee the right to commence his action on the covenant of warranty. To allow him to do so would be to abolish the prac- tical distinction between the covenant of warranty and the covenant against incum- brances. If suits had been brought by the legatees, and the warrantor had been notified to defend, a judgment thereon rendered against the plaintiffs would, on payment thereof, have placed them in a position to maintain this action, as the law would not require them to submit to the ceremony of an actual dispossession ; but having paid the legatees voluntarily and without suit, when it is possible, if an opportunity had been offered, the cove- nantor might have been able to show that 151.] THE COVENANT OF WARRANTY. [CHAP. VIII. case in New York, certain land of which a part had been returned to the comptroller and sold by him for unpaid taxes was subse- quently conveyed with a covenant for quiet enjoyment to a pur- chaser, who on the last day for the redemption of the land paid the amount of taxes, with charges, etc., and thereby redeemed it, and then brought suit on his covenant ; but it was held by the court below that the action could not be maintained, there having been no payment of money at the request of the defendant and no eviction, and this ruling was sustained by the Supreme Court, which held that as there was no covenant against incum- brances, the plaintiff had no right to pay voluntarily and without any request on the part of the defendant and then charge him with such payment ; * and such is the unquestioned current of authority. 2 § 151. A different rule might, however, apply in the case of a covenant for quiet enjoyment when expressed as is usual in Eng- lish conveyances, 3 and in a recent case in Maine it has been held the incumbrances were discharged, they are within the rule established in Pat- ton v. McFarlane, supra. Notice to the covenantor to pay and discharge the leg- acies is no evidence of an eviction, as insisted upon by the plaintiffs. Had a suit been threatened, and the plaintiffs were likely to be disturbed in their posses- sion, there would be more plausibility in the position ; but even then the weight of the authorities would require us to hold there was no eviction." i McCoy v. Lord, 19 Barb. S. C. (N. Y.) 18. "Upon principle," said Greene, J., who delivered the opinion, "this seems a very clear case. The plaintiffs purchased a piece of land of the defendant, and in the conveyance which they took provided for their own security by such a covenant as they thought proper to exact and the defendant was willing to execute. The rights of the parties under that covenant are well settled and understood and there is no pretence that it has been broken. But it is supposed that there is something iu the peculiar circumstances of this case from which the plaintiffs derived a right to pay the money in question, and charge the defendant with it in this action. . . . The plaintiffs' covenant for quiet enjoy- ment has never been broken, for the rea- son that there never was any eviction. They were not compelled by legal process to pay. And as they had no covenant against incumbrances, they had no right to pay them voluntarily and without any request on the part of the defendant, and charge him with such payment. It is no answer to say that it would be a hardship for the plaintiffs to be compelled to wait until they were evicted, and then sue for the purchase money and lose the enhanced value of the land and improvements. But for the covenant for quiet enjoyment they could not even recover the purchase money in a case free from fraud ; and if they de- sired a remedy adequate to other contin- gencies, they should have provided for it by approjuiate covenants. These cove- nants have been long in use, and the rights and remedies of parties under them have been long and well settled ; and it is a sufficient answer to this action, under such circumstances, that there is no precedent for it." 2 Wilson v. Irish , 62 Io. 260 ; Sny- der v. Jennings, 15 Neb. 372 ; Morgan v. Henderson, 2 Wash. Ter. 367. 3 That is to say, that the purchaser shall enjoy without any let, suit, etc., and 205 § 152.] THE COVENANT OF WARRANTY. [CHAP. VIII. that where the covenant was one of non-claim, 1 " the purchaser was not bound to wait until such measures were taken to deprive him of possession when his remedy against the defendant might be fruitless." 2 So where in Iowa, there is a statutory form of a covenant of warranty which is considered " to include and imply every lesser covenant for title," it was held that where a grantor refused to pay off a tax which was a lien upon the land conveyed, his grantee might pay the same and recover the amount so paid in an action on the covenant. 3 It would of course be otherwise if the tax sale were illegal ; its payment by the grantee would be merely voluntary and could not make the tax a valid incum- brance. 4 § 152. In the preceding classes of cases which it has thus been attempted to consider, the loss for which the benefit of the cov- enant was invoked has been that of the land itself or of some corporeal right incident to its enjoyment. But in case the sub- ject of the loss has been an incorporeal right annexed or incident to the land, or something which represented or stood in the place of the land, while there are decisions which hold that these also, equally with the land itself, may come within the scope of a cove- nant of warranty, 5 there have been at least two decisions to the effect that such a loss is not within its scope. that free from all incumbrances, etc., supra, case itself was simply one of a mortgage § 70, et sen. Such was the form of the cove- given by the defendant to one Nickerson, nant in Hall v. Dean, 13 Johns. (N. Y. ) 105, and a subsequent mortgage by the former where it was held that the purchaser was en- to the plaintiff with a covenant of war- titled to recover the amount he had volun- ranty, which latter mortgage was after- tarilypaid to extinguish the incumbrance. wards extinguished by a quitclaim deed 1 See supra, § 22. from the defendant to the plaintiff, con- 2 Cole v. Lee, 30 Me. 392. "But," taining the covenant that neither he nor continued the court, " as under a deed his heirs nor any one claiming under him containing the common covenant of war- or them should, by any way or means, ranty against incumbrances, he, as grantee, claim or demand any right or title to the might remove them, and resort to the cov- premises. The plaintiff bought in the enant of his warrantor in an action for Nickerson mortgage and took an assign- indemnification." If " the common cove- ment of it, and it was held, in a suit nant " here referred to be the ordinary upon the covenant, that he was entitled covenant of warranty as thus expressed, to recover the amount paid by him. then these remarks are apparently in- 3 Funk v. Creswell, 5 Clarke, (Io. ) 91; consistent with the course of decision in Thomas v. Stickle, 32 id. 71 ; Richards v. Pennsylvania and New York noticed in Iowa Co., 44 id. 304 ; Rev. St. 1884, p. the text. But if the covenant be indeed 533, § 1970. a warranty against incumbrances, the case 4 Cummings v. Holt, 56 Verm. 384. would, it is apprehended, fall within the 5 Kramer v. Carter, 136 Mass. 504 ; distinction noticed supra, p. 205, n. 3. The Scriver v. Smith, 100 N. Y. 471, where 206 152.] THE COVENANT OP WARRANTY. [CHAP. VIII. In Mitchell v. Warner, 1 decided in Connecticut in 1825, a tract of land through which ran a stream of Avater was conveyed to a purchaser with a covenant of warranty, and the water having been, under paramount title, diverted from the land, it was held that the covenant was not broken, either by the existence of the paramount right or by the actual entry and diversion of the water in pursuance of it. 2 the subject was elaborately considered, and the previous cases of Green v. Collins, 86 N. Y. 246, and Adams v. Conover, 87 id. 422, explained. See infra, p. 215, n. 3. 1 5 Conn. 497. 2 It may be, however, observed of this decision that although authorities were cited to show that at common law, war- ranty extended to rents, commons, " and all things issuing out of the land," and to incorporeal hereditaments, yet the court proceeded upon the distinction that these authorities could not have meant to in- clude incorporeal hereditaments which were not tenements, and it was said that water and a right to draw water were in- deed incorporeal hereditaments, but not tenements, as not being of a permanent nature. Such a distinction was not, how- ever, taken in the authorities thus cited (Co. Litt. 46, 48, 388, 389 ; Touchstone, 184 ; 2 Black. Com. 18 ; Pomfret v. Ri- croft, 1 Saund. 322 ; Bally v. Wells, 3 Wils. 26); and seems open to much ob- jection, for it is elementary law that "if a man grants all his lands, he grants thereby all his mines of metals and other fossils, his woods, his waters, and his houses, as well as his fields and mead- ows, and by the name of land, which is nomen generalissimvm, everything terres- trial shall pass ;" 2 Black. Com. 18 ; and it would seem natural to suppose that when a warranty accompanied such a grant, its scope was coextensive with the subject matter. Hence in Pennsylvania, a cov- enant for quiet enjoyment in the lease of a furnace and grist-mill has been held to be broken by the diversion, under paramount right, of the water of the stream. Peters v. Grubb, 21 Pa. 455, and a recent Nova Scotia case is to the same effect, Parker v. Fairbanks, 1 Russ. & Ches. 285. So where the plaintiff, in an action on his grantor's covenant of warranty, offered to prove that at the date of the deed there had been a house on the premises which had been since removed by a former ten- ant, under a prior agreement between him and the grantor, by which the former was to be at liberty to remove the building whenever his term expired, it was con- sidered that the mere statement of the case was the strongest argument that the removal was a breach of the covenant. " What," it was said, " is a more thorough eviction than the absolute removal or de- struction of the property conveyed, if the act is done in pursuance of a title supe- rior to that of the grantor at the date of the deed ? and what would constitute a more complete breach of the covenant against the grantor and his heirs than the removal of the house by a title de- rived from him, anterior to his deed to the plaintiff ? " West v. Stewart, 7 Pa. 123, and see supra, p. 73, n. 8. And very recently in the same State the case of Mitchell v. Warner has been pronounced to be "an ill-considered case, and opposed to the teachings of all the elementary writers on common law." Wilson v. Cochran, 46 Pa. 233. It was likewise decided in Wheelock v. Thayer, 15 Pick. (Mass. ) 70, that the benefit of a covenant of warranty contained in a grant of a right of drawing water from a pond would not enure to a subsequent purchaser of this right, "as it could not run with the land, as no land was granted, and to make a covenant run with the land it is not suffi- cient that it is of and concerning land." Such a distinction is very technical, and unsupported by authority, and this case and that of Mitchell v. Warner have been questioned in the note to Spencer's case, 1 Smith's Leading Cases (8th Amer. ed.). The subsequent case in Connecticut of 207 § 162.] THE COVENANT OP WARRANTY. [CHAP. Till. In Dobbins v. Brown, 1 decided in Pennsylvania in 1849, the defendant, being the owner of certain lots, executed a deed by which in consideration of the benefit to be derived to him from the opening of the Pennsylvania Canal through them he agreed that the agents of the Commonwealth might enter upon, occupy, and keep so much of them as should be necessary for a canal, and released all claims for damages for land so taken. Ten years afterwards, he sold these lots to the plaintiffs with a general covenant of warranty, and in the following year the canal was, by authority of the Commonwealth and notwithstanding the plaintiff's resistance, laid out and constructed across the lots, occupying nearly one third of their surface, whereupon the plain- tiffs brought suit on the covenant and at the trial obtained, under the charge of the court below, a verdict for about one third of the consideration money. 2 But the judgment was reversed by the Supreme Court, on the ground first, that a covenant of warranty does not extend to an entry by the Commonwealth in the exercise of her right of eminent domain ; secondly, that there had been no eviction of the land but at most an interruption of the enjoyment Griswold v. Allen, 22 Conn. 89, was de- cided merely on the ground that the grant was of a limited privilege, and the cove- nant coextensive with the grant. 1 12 Pa. 75. 2 The charge of the court as to the right to recover was as follows : " The alleged breach of warranty is the eviction by the Commonwealth under a prior au- thority or license given by defendant. This eviction, it seems, is but a partial one in point of fact thus far. Was the eviction to the prejudice of plaintiffs, and one warranted against by defendant ? Certainly, but not absolutely and with- out qualification. It is true the Common- wealth has the right, exercised under certain conditions, provided for in the Constitution (§ 10, Bill of Rights) ; for without it makes just compensation it is not easy to find in it even any other rights than has any private citizen, except it be that it may exercise the right and then make compensation, whereas a private citizen must precede it with the compen- sation and consent of the owner. The consent may be already considered as given to the Commonwealth by every 208 citizen owning property, yet it must be understood upon the express stipulations of the Constitution. That right itself may be considered inherent in the gov- ernment ; so is the right to compensation in the citizen. This general warranty in the deed is not broken by the mere exer- cise of this right on the part of the Com- monwealth. But then this right of the citizen to require damages or compensa- tion therefor is so complete and extensive that it cannot be abridged by statute. The right is reserved to the citizen by the Constitution, and there is no legislative authority to take it away or diminish it. This right, then, is warranted to plaintiffs by this deed. And if this right was re- leased or conveyed, and so destroyed by the warrantor prior to his warranty to plaintiffs, it is very clear that, upon the eviction under it, the covenant is broken, and the warrantee or covenantee is entitled to recover from his warrantor. This is most certainly right and just and nothing more. Upon this principle we charge you the plaintiffs are entitled to recover, if such a state of facts is shown." § 152.] THE COVENANT OP "WARRANTY. [CHAP. VIII. of an easement ; thirdly, that the defendant's release to the Com- monwealth was no eviction, being merely a release of a claim to compensation, "which could not have fallen within the ancient warranty, which had regard to things corporeal, and therefore could not fall within the modern covenant ; and fourthly, that the release could not pass a right of entry to the Commonwealth, inasmuch as that right was in her from the beginning. 1 1 "In England," said Gibson, C. J., " the feudal warranty was superseded by a covenant of warranty, which in turn seems to have given place in that coun- try, but in few of the American States, to what conveyancers call the five common covenants of title ; namely, a covenant of seisin, a covenant that the grantor had a right to convey, a covenant for quiet en- joyment, and a covenant for further assur- ance ; for the last of which Chancellor Kent substitutes the covenant of war- ranty, still retained by us, and on which this action is brought. It has been thought by country scriveners, and even by mem- bers of the profession, to contain the ele- ments of all the rest ; but the terms of it are too specific to secure the grantee against every disturbance by those who may have a better title. It binds the grantor to defend the 2 )0Ssess i° n against every claimant of it by right, and it is consequently a covenant against rightful eviction. To maintain an action for a breach of it, as may be seen in Clarke v. McAnulty, 3 Serg. & Rawle, 364, Paul v. Witman, 3 Watts & Serg. 407, and in the cases collected in a note to 4 Kent, 471, an eviction must be laid and proved, not necessarily by process or the application of physical force, but by the legal force of an irresistible title. There must be proof at least of an involuntary loss of the pos- session. " It would scarce be thought that a covenant of warranty extends to an entry by the authority of the State, in the exercise of its eminent domain. Like any other covenant, it must be restrained to what was supposed to be the matter in view ; and no grantor who warrants the possession dreams that he covenants against the entry of the State to make a railroad or a canal ; nor can it be a sound interpretation of the contract that would make him liable for it. An ex- plicit covenant against all the world would bind him, but the law is not so unreason- able as to imply it. The entry of the public agents, and the occupancy of the ground, were not a breach of the war- ranty. "Nor was it an eviction even of the ground taken for public use ; certainly it was not a disseisin. The entry was on the enjoyment of an easement, which was at most a disturbance that left the seisin, and a qualified use of the possession, in the grantee. If the subject matter were in other respects within a covenant for quiet enjoyment, the public invasion of it might have been a breach of it ; but it was not an eviction. In contemplation of law, the grantee was still the owner and possessor, and might have gained an in- defeasible title to the property, by the statute of limitations, against an adverse claimant by superior right. He might continue to do any act of ownership con- sistent with the public franchise, reserved from the beginning. He might lay pipes or open a quarry under the canal, or enter on any other enjoyment of the soil that would not interfere with the works or impede the navigation. " Was the antecedent release of ultimate compensation an eviction? An eviction of what ? Of a right to claim. Strange sub- ject of an eviction ! Having been executed before the conveyance, the release, if an eviction of any right, was an eviction of the grantor's right, for the grantee could not be evicted of what he had not received. The construction of the canal was subse- quent to the conveyance ; and if there was an eviction at all, it was not by the sealing of the release, but by the entry of the State, which, we have seen, was not a 14 209 § 153.] THE COVENANT OF WARRANTY. [CHAP. VIII. § 153. The correctness of the first of these grounds of decision is beyond question ; the doctrine that the exercise of the right of eminent domain is a breach of the covenants for title is not even susceptible of argument, 1 and the contrary has not only been re- cently reaffirmed in Pennsylvania, but has been in other States lately applied in a peculiar and interesting class of cases already noticed. 2 As to the other grounds of the decision, however, some exception may perhaps be taken. The position that there had been no eviction of the land, but merely an interruption of the enjoyment of an easement, is met by the numerous authorities which decide that such an interruption, when made by title, by an individual, is a breach of the covenants for quiet enjoyment or of warranty. 3 The position that the defendant's release to the Commonwealth was no breach of the modern covenant because as was supposed it would have been no breach of the ancient warranty, would seem to be not altogether accurate either as to premises or conclusion, as warranty did, as has been seen, extend to many incorporeal hereditaments, 4 and even if it did not, the disseisin within the warranty. The release was, if possible, still less so. The claim to compensation, being no more than the benefit of a chance, was an ideal thing ; and, though of appreciable value, it would not have fallen within the ancient war- ranty, which had regard to things cor- poreal, and differed from its successor chiefly in regard to the voucher to war- ranty and the recompense in value. It therefore cannot fall within the modern covenant. 1 ' A part of the argument has been that the release passed a right of entry to the State, as well as extinguished the compen- sation for it. But the releasor could not convey a right that was in the State from the beginning, and one that could be ex- ercised without his consent on the single condition of compensating the owner. The release forestalled the compensation, and it did no more. It was not a breach of a subsequent and prospective covenant, not even against incumbrances ; and, run- ning as it did with the land, it could not by any construction be more than a clog on the enjoyment." 1 Bailey v. Miltenberger, 31 Pa. 37, and see supra, § 129. 210 2 Cases in which slaves having been sold trith a covenant of warranty that they were slaves for life, the covenant has been held not broken by the subsequent eman- cipation of the slaves under the proclama- tion of 1863. Supra, § 129. 8 See supra, p. 207, n. 2. 4 Thus it will be found in the Year Book 43 Ed. III. 25, and 9 Hen. VI. 56, that a luarrantia charta; will lie on the grant of an advowson with warranty, and see supra, §11, n. 1. Warranty was, more- over, before its disuse, extended to many things which it would not formerly have been held to embrace; for although Coke says "a warrantie does not extend to any lease, though it be for many thousand years, or to estates of tenant by statute staple or merchant, or elegit, or any other chattel, but only to freehold or inherit- ance ; " Co. Litt. 389 ; yet the case of Pincombe v. Rudge, Hob. 3, shows that in the seventeenth century warranty, when annexed to the assignment of a lease- hold, was used as a personal covenant ; supra, p. 15, n. 4, § 113. And it has been somewhat recently held that where the subject of a conveyance lay in grant and not in livery, and was therefore insus- § 153.] THE COVENANT OF WARRANTY. [CHAP. VIII. modern covenants were expressly introduced, among other reasons, for the very purpose of extending the scope of the warranty which ceptible of any other than a constructive seisin, any eviction which might happen must consequently be of the same nature as the possession. Thus in Lukens v. Nicholson, 4 Phila. R. 22, it was said : "This case turns in substance on the question whether the assignee of a rent reserved on a conveyance in fee, whose estate is defeated by his own failure to put the deed of assignment on record, and the subsequent execution of a mortgage by the assignor, can recover compensation from the latter by an action on a covenant of special warranty contained in the as- signment, without any other allegation or proof of an eviction than that arising from a suit on the mortgage, followed by a judgment and the sale of the rent by the sheriff under a levari facias. It is un- doubtedly true that such a sale is not an actual dispossession, and that no one can be said to be evicted, under ordinary cir- cumstances, until he is actually dispos- sessed. But it is equally true that when dispossession is impossible, as when the plaintiff has not been and could not be possessed, proof of an actual ouster will be dispensed with, and it will be enough to show that he has been deprived of all power or possibility of enjoyment by a default on the part of the defendant, which is, in other respects, such as to amount to a breach of the warranty. Ap- plying these principles to the present case, we find that the estate warranted lying in grant and not in livery, was insusceptible of an actual or of any other than a con- structive seisin, and that any eviction which might happen must consequently be of the same nature as the possession. And it is equally plain that the sheriff's sale stripped the plaintiff of the whole right and title to the rent, and by taking away the right to possess, necessarily took with it the only possession which can exist in the case of an incorporeal hereditament. An attornment by the tenant of the land to the purchaser might perhaps have been requisite had the question arisen on a grant at common law, but no attornment is ne- cessary under the statute of Uses ; and besides, the sale was the act of the law, to which the law will presume that every man, and consequently the tenant, as- sented. It has indeed been said that it was the plaintiff's duty to wait until some act was done or claim made ad- versely by the purchaser, and then, and not till then, proceed on the warranty. But those who urge this argument forget that the sale left the plaintiff without any right to the rent, or means of redress against the tenant of the land out of which the rent issued ; that any payment to him would have been a mispayment ; that any suit which he might have brought, or distress which he could have levied, would have been destitute of legal validity, and would necessarily have ex- posed him to costs and damages. Unless, therefore, it can be said that he was bound to lie out of the rent for an indefinite pe- riod, without compensation, in attendance upon the pleasure of others, he was ne- cessarily entitled to sue as soon as the sale was made." The case of Kinney v. McCullough, 1 Sandf. Ch. (N. Y.) 370, may be here noticed. The defendant and one Halsey, being the owners as copartners of certain valuable stores which were subject to two mortgages, the former, at the dissolution of the partnership, sold his undivided in- terest to the latter, who assumed as part of the consideration the payment of the mortgages, which were exempted from the covenants for quiet enjoyment contained in the deed. The purchaser then executed another mortgage to the complainant, who foreclosed it and at the sale bought the stores himself. The lien of the prior mortgages was not divested by this sale, and they were subsequently foreclosed and the property sold again while in the hands of the complainant and the money brought into court for distribution, when it ap- peared that at the time of the sale of the stores by the defendant he had agreed to assume the payment of another mortgage to one Phillipon, which they had jointly given for a debt of the firm, but which had not been then placed on record. He 211 § 153.] THE COVENANT OF WARRANTY. [CHAP. VIII. they superseded. 1 And as to the position that the release could not pass a right of entry to the Commonwealth inasmuch as that right was in her from the beginning, the proposition as thus broadly stated must be denied. For although the right of emi- nent domain is one paramount to the enjoyment of all the land within the borders of a State, yet under the constitutions of all the States and the Fifth Amendment of the Constitution of the United States, it cannot be exercised unless compensation be first made or provided to the owner, 2 and without such com- pensation, any taking of private property for public use is an unlawful taking. 3 But the release by the owner of his right to compensation makes that lawful which otherwise would be unlaw- ful, 4 and it is difficult to see the distinction between the release of such a right to the Commonwealth and the grant to a stranger of the right to construct a canal or railroad upon the land, whose exercise would under all the authorities have been a breach of the covenant. 5 did not, however, pay the mortgage, but with the intention of throwing the debt upon the stores caused it to be recorded just before the execution of the mortgage under which the complainant purchased. The mortgagee was, therefore, entitled to payment out of the surplus remaining after the two oldest mortgages had been satisfied, and this consumed the whole fund, leaving nothing for the complainant, who thereupon filed a bill against the de- fendant for payment of the amount thus lost. His right to a decree was sufficiently obvious, but it was objected on behalf of the defendant, that the complainant had a sufficient remedy at law upon the de- fendant's covenants on the sale to his late partner, the benefit of which had passed to the complainant; but the court said: "This would have been the case, unques- tionably, if Phillipon's mortgage had been foreclosed while the complainant remained in possession, and the complainant had d thereby. Rut no such evic- tion has occurred. The complainant was turned out by a title paramount to both, but which left to him a surplus in money, not a portion of the land. He has been evicted from that surplus by Phillipon's mortgage. This is not such a legal evic- tion as will sustain an action at law upon 212 the covenants in the conveyance to Hal- sey." In support of this point, however, the learned Vice-Chancellor relied on the earlier New York cases, which have been already referred to as having been over- ruled, supra, § 143, p. 193, n. 1. 1 As has nowhere been better ex- pressed than by the learned judge who delivered the opinion in Dobbins v. Brown, supra, p. 209, n. 1. See Stewart v. "West, 14 Pa. 638 ; supra, p. 173, n. 4. 2 Cooley on Constitutional Limita- tions, ch. xv. 3 Thus although of course the Com- monwealth herself cannot be restrained from the unlawful exercise of the right of eminent domain, yet nothing is better settled than that those to whom she del- egates that right can be restrained to precisely the same extent as though the interruption were made by a stran- ger. Bonaparte v. C. & A. R. R., 1 Bald. (C. C. U. S.) 205; Redfield on Railways, c. 29. 4 "The release," says the opinion, " forestalled the compensation, and it did no more." True, but it did do that, and it was the very forestalling of the com- pensation which worked the injury. 5 The decision in New York, of Mur- ray v. Jayne, 8 Barb. S. C. 612, may be § 153.] THE COVENANT OP WARRANTY. [chap. vrn. In another case in Pennsylvania, 1 the owner of a furnace and grist-mill had made an offer to the Commonwealth that if the canal commissioners would raise the height of his dam, he would allow them a sufficient supply of water to feed the canal. The commis- sioners, without taking any notice of this offer, erected a gate at the head of the race leading to the mill and furnace, and in spite of objection from the owner diverted the water therefrom when- ever the low state of water in the canal rendered this necessary. The premises were afterwards leased, with a covenant " to warrant incidentally referred to as corroborative of the suggestion thus made as to the de- cision in Dobbins v. Brown. The defend- ants, commissioners under an act of the legislature to raise money to drain the drowned lands in Orange County, made a parol agreement with the two tenants in common of a farm at the outlet of the drowned lands, by which the commis- sioners obtained permission to enter up- on the farm and open a canal through it. No damages were appraised or as- certained, but it was agreed that they should be, and that the taxes which the commissioners should thereafter assess upon the farm from time to time should be deducted therefrom, and the balance of damages paid by the commissioners. The latter entered upon the land and con- tinued in possession for more than twenty years, but omitted to have the damages ascertained, though requested to do so. The plaintiff subsequently purchased the farm from the tenants in common, and the commissioners having advertised it for sale for non-payment of taxes, the plaintiff filed his bill for an injunction on the ground that the agreement was one which had it been under seal would have been a covenant running with the land, and as it was one which a court of equity would enforce it must be regarded as having passed to the plaintiff under his deed; and the court held that the plaintiff was enti- tled to an injunction and that the true construction of the agreement was that the commissioners were to collect no taxes till the damages were ascertained. " It was said upon the argument," said Brown, J., who delivered the opinion, " that the damages were personal and not real prop- erty, and therefore did not pass to the plaintiff by force of the deeds of convey- ance. This argument would have had more force if the damages had been ascer- tained and declared before the execution of the deeds. There would then have been a fixed and definite sum due and payable from the commissioners to the owner, which might have been recovered in an action at law. The severance of the damages for the lands, in respect to which they accrued, would have been in a measure complete, and they would then have assumed the aspect and the attri- butes of personal estate. The entry upon the lands and the opening of the canal were not tortious acts creating a right of action which died with the person or sur- vived with the representative ; but the entry was under an agreement and license to purchase, pay for, and acquire the title at a future period. Until the title was thus acquired, there was no such severance of the damages from the lands as con- verted them into personal estate, and they consequently passed with the deeds as part and parcel of the thing granted. . . . The agreement to exempt the lands from taxation to the extent of the amount of the damages, would, had the contract been under seal, be a covenant running with the land. Vyvyan v. Arthur, 1 Barn. & Cress. 410; Vernon v. Smith, 5 Barn. & Aid. 1 ; Bally v. Wells, 3 Wilson, 25. And if the agreement be such as courts of equity will enforce, for that purpose and to that extent it must be regarded as having passed to the plaintiff under the deed." 1 Peters v. Grubb, 21 Pa. 455. 213 § 153.] THE COVENANT OP WARRANTY. [CHAP. VIII. and defend the same to the lessees against the claims, interrup- tion or molestation of any person whomsoever, so that the lessee should suffer no loss from any defect of title of the lessor to the premises." Soon after the execution of the lease, the agents of the Commonwealth notified the lessees that unless there was a rise of water before a certain day, they would be obliged to shut off the water from the furnace, and shortly after, the gate was closed entirely. It was contended that the lessors were not liable on the covenants in the lease — that the case was less strong than that of Dobbins v. Brown, as the vendor there had released his claim for damages, while in the present case the lessees enjoyed the premises in subordination to the rights of the Commonwealth, 1 but the Supreme Court held that the covenant must be taken to embrace all existing antagonistic claims, whether on the part of the Commonwealth or of private persons — that if the original entry of the State under the right of eminent domain had been 1 The charge of the court below as to this was: "The covenant of course ex- tended only to lawful interruptions. No man is presumed to covenant against law- less ones, as the tenant can protect him- self against them by actions of trespass, which the landlord could not sustain he having parted with the possession. Nor would it be presumed that the landlord covenanted against any original entry by the State to make roads, take and use the water, or exercise other acts of preroga- tive. No man is presumed to contract against bare possibilities without express words. Besides, for such injuries the ten- ant has his redress by claiming damages, which it is to be presumed the public will accord and pay. If then the State had entered for the first time and drawn off the water after the lease was executed, we should hold that it did not come within the covenant for quiet enjoyment, although the same is expressed in strong and broad terms. The tenant would have to seek his redress by asking for damages under the internal improvement laws. But in the present case the entry had been made some thirteen or fourteen years before the dam was built, water drawn off when re- quired for the canal, and the damage, if any, was done to John Gamber the then 214 owner, and paid or presumed to be settled with him. The right to exclude him en- tirely from the use of the water had been claimed by the State agents but never exercised, had been a subject of dispute between him and them, and also with the plaintiffs after their purchase. Shippen in taking his lease would very naturally apprehend difficulty about the use of the water, and as the defendants denied the right of the State to stop their works, it is no more than probable that they would guarantee against it. Have they done so ? We consider the words quite broad enough to cover the case, and applicable to it, more especially as there does not appear to have been any other disputed right, no defect or apprehended defect in the title, or pretence of right in any other person to interrupt the tenant in the enjoyment of his lease. ... If you believe these parties had in view the claim of the State to interrupt the occupant in the use of the water, and made the contract with a view to that, we instruct you that the covenant for quiet enjoyment in the lease is broad enough to protect the tenant or his as-, signees, and render the lessors responsible for the damages sustained by reason of such interruption." § 153.] THE COVENANT OP WARRANTY. [CHAP. VIII. subsequent to the date of the lease, the case of Dobbins v. Brown might have ruled the case in their favor, but that the works of the Commonwealth having been erected for some years prior to the date of the lease, and the right to use the water when necessary claimed and to some extent exercised, under objection by the owner who claimed that his was the better right to the exclusive use of the water, it could not be doubted that the covenant for quiet enjoyment was intended by the parties to protect against this claim on the part of the Commonwealth. 1 So where the defendant, having laid out a tract of land in lots and streets, conveyed to the plaintiff a lot described as bounded by certain streets, together with all " ways, etc. thereunto belong- ing or in any wise appertaining," it was held that the description imported a warranty that the streets existed which was broken by the defendant's failure to open them. 2 So in a very recent case in New York, mill property was con- veyed by metes and bounds, with no express mention of a right to flood the neighbor's land above. The grantee was afterwards compelled, by an action for damages for flooding this land, to re- duce the height of the dam below that at which it stood at the time of the conveyance, " and therefore," said the court, " was not merely deprived of an easement in another's land which was not conveyed and which his deed did not purport to convey, but he lost by force of the paramount title a thing actually conveyed, in- cluded within the metes and bounds of his deed, and just as much property granted by that conveyance as if it had been a particular acre of the land. Considering the subject matter of the grant, the peculiar character of the property as a water-power and a mill- site, the existence of the dam at a height essential to that power and to the full enjoyment of the property, we hold that the deed conveyed the dam at its existing height, and the covenant of war- ranty was broken when the grantee was compelled in whole or in part to take it down." 3 1 " If there was error," said the court, Burial Ground Society, 10 id. 135, on the " in submitting to the jury the question ground that in the latter case a street of the intent of the parties, the defendants had actually been laid out by the public have no just cause of complaint, as in the authorities before the conveyance was ex- opinion of this court the intent might ecuted of the lot bounded thereby, and have been inferred as matter of law." was subsequently vacated by the same 2 Trutt v. Spotts, 87 Pa. 339. The authorities. case was distinguished from Bellinger v. 8 Adams v. Conover, 87 X. Y. 422. The 215 § 154.] THE COVENANT OF WARRANTY. [CHAP. VIII. So where the defendant leased to the plaintiffs a mill, with the machinery and mill privilege, " the water-power to be of the same extent as that enjoyed by the present lessee," the Supreme Court of Nova Scotia held that the diminution of the supply of water which the evidence tended to show was caused by the acts of the defendant or his tenant of the land above and resulted in injury and loss to the plaintiffs, was a breach of the covenant for quiet enjoyment. 1 . § 154. In reviewing the numerous cases upon the subject of what constitutes an eviction within the covenant of warranty, it seems proper to recur to the remark, which has elsewhere been made in the course of this treatise, that covenants for title should not and cannot be regulated in all cases by the artificial and technical rules which properly govern the law of real estate. Reference may be had, therefore, not only to the intention of the parties as expressed in the conveyance which contains the cove- nants, but also to the local practice of conveyancing itself. In those parts of this country, if any such exist, where the refine- ments of English conveyancing prevail and the covenants for title are inserted with exactness and fulness, the omission of a covenant for seisin or against incumbrances would justify the in- ference that the terms of the contract did not give the purchaser the peculiar benefit which such a covenant strictly confers ; and the more exactly and particularly the covenants were expressed the more rigid would be their construction. So far, however, from such being the practice of conveyancing in this country, it is rarely if ever the case that the covenants for title which are inserted are expressed otherwise than very briefly. So in some court continued, "The case, therefore, (N. Sc. L. ) 215. "The defendant," said does not come within the rule of Green the court, " positively stipulated in effect v. Collins, 86 N. Y. 246, nor is it like that the plaintiffs should have, during the Burke v. Nichols, 2 Keyes, 670. In neither term, a flow of water of a certain amount, of these cases was the grantee evicted which by undenied evidence for a certain from anything which passed by the grant, period of the term the plaintiffs did not That plain line of distinction separates in fact enjoy. The result was, proved both from a case like the present, where damages. The defendant failed to show, the thing lost was covered by the convey- he did not even attempt to show, that ance and embraced within its description, the deficiency of water-power was occa- and the deed both conveyed, and as we sioned by causes of a nature that rendered construe it purported to convey, the iden- it impossible for him to perform the cove- tical thing destroyed by a paramount nant in question, and which in law would title." Supra, p. 206, n. 5. discharge him from his obligation to per- 1 Parker v. Fairbanks, 1 Russ. & Ches. form it." 216 § 155.] THE COVENANT OF WARRANTY. [CHAP. VIII. of the States, long-settled usage has caused the omission of all the covenants for title except that of warranty, which, by common practice at least, is looked upon as containing all that is necessary to assure the title to the purchaser. 1 Where such has become the settled practice of a State, it is suggested, with great deference, that technical rules based upon a different custom of conveyancing as respects these covenants lose to some extent their application, and to say that " the pur- chaser should have protected himself by other covenants," is to apply a hard rule in States where those other covenants are never employed. 2 And as was said in a somewhat recent case in New York, "The tendency of all courts governed by the rules of the common law is to favor and facilitate the remedies on covenants for title." 3 § 155. The pleadings in an action on the covenant of war- ranty may here be considered in connection with those in an action on the covenant for quiet enjoyment. It has been seen that many authorities have, in a general way, said that these are synonymous covenants. They are less so, perhaps, in respect to the pleadings than in any other. The following essentials to the plaintiff's averment are, however, common to both : — The breach must be set forth particularly, for, as is the case in an action on the covenant against incumbrances, 4 the burden of proof is upon the plaintiff, and it is not enough to negative the words of the covenant. 6 The disturbance must be averred to have been under lawful 1 Funk v. Creswell, 5 Clarke, (Io.) 93; down a strict rule and to deny this right Butt v. Rilfe, 78 Ky. 352. " unless there has been fraud oi in evic- 2 A branch of this subject of eviction tion," yet there are few, if any, which is that of the purchaser's right to detain deny to the purchaser the right to set the unpaid purchase money by reason of off the amount bona fide reasonably and a defect of title. Such a right depends necessarily paid by him to buy in the par- (except in Pennsylvania) upon the defect amount title, even where the only cove- in question coming within the covenants nants are those for quiet enjoyment or of for title he has received, and is, according warranty. to the weight of modern authority, sane- 3 Bordewell v. Colie, 1 Lans. (N. Y.) tioned to the extent to which the pur- 146. chaser would be, at that time, entitled to 4 Supra, § 86. damages upon the covenants. It is at- 6 Blanchard v. Hoxie, 34 Me. 378 ; tempted fully to consider this subject in Wait v. Maxwell, 4 Pick. (Mass.) 87 ; Mills a subsequent part of this work (see Ch. v. Rice, 3 Neb. 76 ; Morgan v. Henderson, XIV.), where it will be seen that although 2 Wash. Ter. 367 ; and see the cases re- there are many cases which profess to lay ferred to supra, § 86. 217 § 155.] THE COVENANT OF WARRANTY. [CHAP. VIII. title, for otherwise there would be nothing to show it was not a mere trespass. 1 Of course, however, these rules do not apply to an interruption made by the covenantor himself or those claiming under him, 2 nor to a case in which the covenant is against the acts of a par- ticularly named person. But having averred that the interruption was made under lawful title existing before and at the time of the conveyance to the cove- nantee, 3 it is not necessary that that title should be set forth par- ticularly, 4 for although it is in general necessary for the plaintiff to examine the title under which the interruption was made so far as to satisfy himself that it was not tortious, and that his remedy must be, not against the party making it, but against the covenantor, yet if he were to attempt to set out the particulars of this title, it might, if not correctly pleaded, be successfully trav- ersed by the defendant. 5 1 Hays v. Bickerstaff, Vaugh. 118 ; su- pra, § 127. Claiming title is not suffi- cient. Norman v. Foster, 1 Mod. 101. "Habcns titulum would have done your business," said Hale, C. J. 2 Kir by v. Hansaker, Cro. Jac. 315 ; Skinner v. Kilbys, 1 Show. 70 ; Jordan v. Twells, Cas. temp. Hardw. 172 ; Wotton v. Hele, 2 Saund. 181, and see the au- thorities collected in the note ; Fraser v. Skey, 2 Chitty, 647 ; Kelly v. Dutch Church, 2 Hill, (N. Y.) 105 ; Naglee v. Ingersoll, 7 Pa. 205 ; Knapp v. Marlboro, 34 Verm. 235 ; Peck v. Houghtaling, 35 Mich. 127. 3 Frost v. Earnest, 4 Whart. (Pa.) 86 ; Naglee v. Ingersoll, supra; Crisheld v. Storr, 36 Md. 148. 4 Proctor v. Newton, 2 Lev. 37 ; Buck- ley v. Williams, 3 id. 325 ; Jordan v. Twells, Cas. temp. Hardw. 161. It was earnestly contended in Foster v. Pierson, 4 Term, 617, and Hodgson v. East India Company, 8 id. 278, that the plaintiff should have set forth the adverse title un- der which he was expelled ; but Kenyon, C. J., said, in the latter of these cases, " I do not know how it was possible for him to set forth the particulars of the titles of the persons who entered upon him ; such knowledge could only be acquired by an inspection of title deeds to which he could 218 have no access." See also note to Brown- ing v. Wright, 2 Bos. & Pull. 14. 5 A form of a breach of the covenant for quiet enjoyment is thus given in 2 Greenl. Evidence, § 243 : "After reciting the execution of the deed and the covenant in its very words, ' Now the said plaintiff in fact says, that he has not been per- mitted so to possess and enjoy the said premises ; but on the contrary he avers, that, after the making of the said deed, to wit, on the day of , one E. F., who at the time of making said deed had, and ever since, until the molestation of the plaintiff hereinafter mentioned, con- tinued to have lawful right and title to said premises, did enter into the same, and did thence eject, expel, and remove the plaintiff, and hold him out of the posses- sion of the same, contrary to the form and effect of the covenant aforesaid, etc' " This form is concise in the extreme. One more full and precise will be found in 2 Chitty's Pleading, 545, 546, containing also an averment of costs incurred in de- fending an ejectment, and also of expenses in improvements. (See as to the latter Lewis v. Campbell, 3 J. B. Moore, 35, and infra, Ch. IX. ) Another still more full, in which the breach assigned is an interruption by persons claiming common of pasture, will be found in 5 Wentworth's Pleading, 156.] THE COVENANT OF WARRANTY. [CHAP. VIII. § 156. On the trial, the burden of the proof is, as a general rule, obviously thrown directly upon the plaintiff in the first instance. It may, however, be shifted. As where the breach having been said to be the inability of the plaintiff to obtain possession by reason of an outstanding paramount title in a third person, the defendant pleaded that such paramount title was not in such third person but in himself and had been well conveyed by his deed to the plaintiff, and it was held that the defendant, by his plea, assumed the burden of proof. 1 56-60, and another in 5 id. 63, where, on a covenant for quiet enjoyment and against incumbrances, the breach assigned was that the defendant suffered the ground- rent to fall in arrear, per quod the plaintiff was obliged to pay it to avoid distress. A good form will also be found in Lewis v. Campbell, 3 J. B. Moore, 35 ; s. c. 8 Taunt. 715. See also Dexter v. Manley, 4 Cush. (Mass.) 14 ; Evans v. Vaughan, 4 Barn. & Cress. 261 ; and the cases to which reference has been made on p. 123 el seq. Some old forms may also be found in 2 Ventris, 60 ; Robinson's Entries, 171; "Winch's Entries, 112-118 ; Hobart, 34. In Shafer v. Wiseman, 47 Mich. 63, it was obviously held that where the plaintiff declared broadly on a covenant of war- ranty in a deed which conveyed an equity of redemption after a mortgage, which was excepted from the covenants against in- cumbrances, there was a variance. 1 Owen v. Thomas, 33 111. 320. 219 157.] THE MEASURE OF DAMAGES. [CHAP. IX. CHAPTER IX. THE MEASURE OF DAMAGES. § 157. Upon the subject of the measure of damages for a breach of the covenants for title, it has been said by a late English writer of authority, " The cases upon this point in England are very scanty, while they are to be found in remarkable abundance in America." 1 Upon the warranty of ancient law no damages whatever were recoverable, unless perhaps in case the warrantor had not other lands wherewith to replace those which his warrantee had lost. 2 And the value of the lands was taken to be that at the time of the warranty made, so that " if land be better after feoff- ment, by buildings or otherwise, he who recovers in value recovers but according as the land was worth at the time of the feoffment, and no more." 3 The change from the ancient to the modern 1 Mayne on Damages (3d ed., 177), and he adds, "It is to be regretted that the multiplication of courts of independent jurisdiction in that country should make their decision often a source of embarrass- ment rather than an assistance in legal investigation." It is this which obviously makes the task of a text writer so much more difficult in America than in Eng- land. 2 Supra, §§ 2, 12. 8 Year Book 30 Edw. III. 14 b. So in 47 Edw. III. 32, it is said : "On voucher, if special matter be shown by the vouchee, viz. that the land at the time of the feoff- ment was worth only £100, and now at the time of the voucher is worth £200 by the industry of the feoffee, the tenant shall recover only the value as it was at the time of sale ; for if the act of the feoffee has meliorated the land, this shall not prejudice the feoffor in his warranty." So in 19 Hen. VI. 46 a, 61 a, Brooke's Ab. Voucher, pi. 69 ; id. Recouver in Value, pi. 59 ; and this was recognized to have been the law in Humphrys v. Knight, 220 Uro. Car. 456. So in Bellel v. Bellel, God- bolt, 151, "If there be new buildings, of which the warranty was demanded, which were not at the time of the warranty made, and the deed is shown, the defendant ought not to demur, but to show the special mat- ter, and enter into the warranty for so much as was at the time of the making of the deed, and not for the residue." See also 1 Reeves's History of the Common Law, 448. And there was no difference as to this between express and implied warranties. Gilbert on Tenures, 124. It has been considered by high Amer- ican authority that "the point is too clear to admit of doubt that the increased value of the land by buildings or other improve- ments made no alteration at common law in the rule of damages." Per Kent, C. J., in Pitcher v. Livingston, 4 Johns. (N. Y.) 1 ; so per Tilghman, C. J., in Bender v. Fromberger, 4 Dall. (Pa.) 442 ; per West, C. J., in Staats v. Van Eyck, 3 Caines, (N. Y.) 111. See these cases infra, p. 222 et seq. § 157.] THE MEASURE OF DAMAGES. [CHAP. IX. system of law, bringing with it, as it did, the change from war- ranty to the covenants for title, brought, it would seem, no change in the rule of damages, 1 though as to this we must judge rather from the absence than the presence of contemporaneous authority. 2 1 Flureau v. Thornhill, 2 W. Black. 1078, has often been cited as a direct au- thority for this position. But that well- known case decided no more than that upon a contract for the purchase of real estate, to which the vendor was (without fraud or fault of his own) unable to make a title, the purchaser was not entitled to damages for the fancied goodness of the bargain which he had lost — a rule which, though then for the first time laid down and since at times doubted, is sup- ported by the weight of authority on both sides of the Atlantic. 1 Sedgwick, Measure of Damages, 406, n. (7th ed.); 2 Suther- land on Damages, 207. "The rule of the common law is," said Parke, B., in Robin- son v. Harraan, 1 Exch. 850, "that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same condition with respect to damages as if the contract had been performed. The case of Flureau v. Thornhill qualified that rule of the com- mon law. It was there held that con- tracts for the sale of real estate are merely on condition that the vendor has a good title, so that when a person contracts to sell real property there is an implied un- derstanding that if he fail to make a good title the only damages recoverable are the expenses which the vendee may be put to in investigating the title." An exception was at one time engrafted upon this exception in cases where the vendor knew that his title was defective or otherwise acted in bad faith, and as to this Hopkins v. Grazebrook, 6 Barn. & Cress. 31, was the leading case in Eng- land, and has been followed in some of our States. Drake v. Baker, 34 N. J. 358 ; Pumpelly v. Phelps, 40 N. Y. 59 ; Lea v. Dean, 3 Whart. (Pa. (31 ; Bitner v. Brough, 11 Pa. 127 ; Burk v. Serrill, 80 id. 413 ; Hammond v. Hannin, 21 Mich. 374 (where the subject was carefully treated) ; Mayue on Damages (3d ed.), 170 et seq. ; 2 Sutherland on Damages, 207 et seq. ; 1 Sedgwick on Damages, 4U6, n. (7th ed.) ; in which treatises the subject is elaborately considered. In England, the course of decision for many years varied between Hoj>kins v. Grazebrook and Flu- reau v. Thornhill ; (Walker v. Moore, 10 Barn. & Cress. 416 ; Robinson v. Har- man, supra ; Worthington v. Warrington, 8 Com. Bench, 134 ; Pounsett v. Fuller, 17 id. 660; Sikes v. Wild, 1 Best & Smith, 587, affirmed s. c. 4 id. 421 ; Engel v. Fitch, 3 Q. B. 314, affirmed 4 id. 659 ;) until finally in the late case of Bain v. Fothergill, L. R. 6 Exch. 59, affirmed in the House of Lords, 7 H. L. 158, the doctrine of Flureau v. Thornhill was carried to the full extent, and Hop- kins v. Grazebrook declared not to be the law. " The rule as to the limits within which damages may be recovered upon the breach of a contract for the sale of real es- tate," said Lord Chelmsford, " must be taken to be without exception. If a per- son enters into a contract for the sale of real estate knowing that he has no title to it nor any means of acquiring it, the pur- chaser cannot recover damages beyond the expense he has incurred by an actiGii for the breach of the contract. He can only recover other damages by an action for deceit." 2 Gray v. Briscoe, Nov, 142, seems to be the only case in the books, and as Mr. Sedgwick (1 Measure of Damages, p. 314, 7th ed.), properly says of it, " It well illustrates that want of any precise measure of damages which characterizes almost all the early English decisions. B. covenants that he was seized of Bl.'s acre in fee simple, when, in truth, it was copy- hold land in fee, according to the custom. By the court : The covenant is [not] broken, and the jury shall give damages in their consciences according to the rate that the county values fee-simple land more than copyhold land." In Lewis 221 § 158.] THE MEASURE OP DAMAGES. [CHAP. IX. For reasons which have been referred to in another part of this treatise, 1 the cases as to covenants for title are much more numer- ous on this side of the Atlantic than in England, and the subject of the measure of damages upon their breach has here been handled with fulness and precision. § 158. The first question which was here presented, as between vendor and purchaser, as to the measure of damages relatively to increased value of the land, was upon a breach of the covenant for seisin. hi Staats v. Ten Eyck, 2 decided in New York in 1805, the ques- tion before the court was simply whether the vendor should be held liable for a rise in the value of the land from adventitious sources independently of beneficial improvements, and the policy of the rule under the old warranty was declared by the court 3 to be based upon reason and authority, and the measure of damages declared to be the value of the land at the time of sale, the best estimate of which was found in the consideration money paid. The question as to beneficial improvements was not presented. This case was in the next year followed in Pennsylvania by Bender v. Fromberger, 4 where a verdict was found for the plaintiff subject to reduction if the court should be of opinion that he was not entitled to recover the value of improvements made after the purchase ; and notwithstanding an able argument for the latter, the measure of damages was held to be limited by the consideration money. 5 v. Campbell, 8 Taunt. 728, where the comments made by the elementary writers plaintiff in an action on the covenant for on the change introduced by the covenants quiet enjoyment claimed to recover the for title, none mention any change in the value of certain buildings, &c, by which amount of recompense to the plaintiff, he had converted the land into pleasure- which would scarcely have happened in grounds, the research of counsel was tin- case these covenants had introduced a new able to produce any authorities on the measure of damages." subject, and Dallas, C. J., said, "I very i Supra, § 16. much doubt whether in any case a plain- 2 3 Caines, (N. Y. ) 111. tiff can recover for the improvements and 8 Per Kent, C. J. buildings he may choose to make and * 4 Dall. 442. erect upon the lands;" and the whole 5 *' It has been contended," continued court were of opinion that, in the form in Tilghman, C. J., who delivered the opin- which special damage was assigned in the ion, "that the true measure of damages in declaration, the value of the buildings all actions of covenant is the loss actually could not be recovered. And see the later sustained. But this rule is laid down too cases in England, infra. So, as was said generally. . . . The rise in the value of in the early case in Kentucky, of Cox v. land, not only in towns on the sea-coast, Strode, 2 Bibb, (Ky.) 277, "In all the but in the interior part of the United 222 § 158.] THE MEASURE OF DAMAGES. [CHAP. IX. In the subsequent case in New York of Pitcher v. Livingston, decided in 1809, although the matter was treated as res Integra, the decisions just referred to were approved and followed. It was considered that as to the allowance for improvements the common law was unquestioned, and that it was never designed by the in- troduction of covenants to establish any other value of damages. The rule of the civil law left the damages to an arbitrary and undefined discretion and destroyed anything like a fixed rule. Whatever expectations of rise in value the purchaser may have had were confined to him alone, and could not have entered as an ingredient into the bargain. It was the land and its price at the time of sale which the parties had in view, and to that subject the operation of the contract ought to be confined. The damages were therefore held to be measured by the consideration money. 1 The authority of these leading cases has never in substance been departed from, and decisions to the same effect will be found in perhaps every State in which the covenant for seisin is em- ployed. 2 States, is such that it can hardly be sup- posed any prudent man would undertake to answer the incalculable damages which might overwhelm his family under the construction contended for by the plain- tiff. I have taken pains to ascertain the opinion of lawyers in this State prior to the American Revolution, and I think my- self warranted in asserting, from the infor- mation I have received, that the prevailing opinion among the most eminent counsel was, that the standard of damages was the value of the land at the time of making the contract." The case of Staats v. Ten Eyck was referred to in the course of the argument, as also the cases of Liber v. Parsons, decided in the year 1786, and of Guerard's Executors v. Rivers, decided in 1792, (both reported in 1 Bay, S. C. 19, 266, and both since overruled, ) where the standard of damages was held to be the value at the time of eviction. These cases were said by Tilghman, C. J., to have been decided in the hurry of a jury trial, and not founded on the mature deliberation given by the New York judges in Staats v. Ten Eyck. It must also be observed that the South Carolina cases were both actions on covenants of warranty and not on the covenant for seisin, and the distinction between the measure of dam- ages on these two covenants is still recog- nized in several of the States, though long since repudiated in South Carolina. See infra, § 164. 1 4 Johns. (N. Y.) 1. The dissenting opinion by Spencer, J., yields in force of argument to those of Kent, C. J., and Van Ness, J., with which the other members of the court concurred. 2 Logan v. Moulder, 1 Pike, (Ark.) 323 ; Mitchell v. Hazen, 4 Conn. 495 ; Sterling v. Peet, 14 id. 245 ; Hartford Ore Co. v. Miller, 41 id. 112 ; Weber v. Ander- son, 73 111. 439 ; Frazer v. Supervisors, 74 id. 282 ; Lacey v. Marnan, 37 Ind. 168 ; Swafford v. Whipple, 3 G. Greene, (Io.) 264 ; Cummins v. Kennedy, 3 Litt. (Ky. ) 118; Cox v. Strode, 2 Bibb, (Ky.) 277; Stubbs v. Page, 2 Greenl. (Me.) 378 ; Mont- gomery v. Reed, 69 Me. 510 ; Crisfield v. Storr, 36 Md. 150 ; Marston v. Hobbs, 2 Mass. 433 ; Caswell v. Wendell, 4 id. 108 ; Smith v. Strong, 14 Pick. (Mass.) 128; Tapley v. Lebeaume, 1 Mo. 550 ; Martin v. Long, 3 id. 391 ; Willson v. Willson, 5 Fost. (N. H.) 234; Wilson v. Forbes, 2 Dev. (N. C.) 30 ; Bacchus v. McCoy, 223 § 162.] THE MEASURE OF DAMAGES. [CHAP. IX. § 159. Although the cases thus referred to were avowedly based on the absence of fraud on the part of the vendor, yet it must not be supposed that in an action on the covenant fraud can be taken advantage of by the purchaser to increase his damages. So long as the distinction is preserved between tort and contract, so long must the remedy be by action in the nature of a writ of deceit, 1 and not by action of covenant. 2 § 160. It must however be noticed that the rule as thus stated to be settled applies perhaps in its universality only to cases between vendor and purchaser in the usual acceptation of the term, and that an exception, to be hereafter noticed, may be con- sidered to exist first, in cases of leases, and secondly, in cases of sales where the vendor's consideration is to be secured by the pur- chaser's improvements. 3 § 161. But while the law is thus well settled where the breach is that of the covenants for seisin or of right to convey, there is a diversity of authority where the breach is that of the covenants for quiet enjoyment or of warranty, it being considered in some States that by analogy to the common law and the difficulty in the practical application of a less simple rule, the damages should be limited by the consideration money, and in others that these cove- nants should be regarded as covenants of indemnification, whose object therefore is to compensate the party for his actual loss at the time of their breach. 4 § 162. In a somewhat recent case in the Rolls Court in England, in a suit for the administration of a testator's estate, it appeared that he had conveyed several acres of land, covenanting for the title, to one who erected several houses thereon and sold them to a purchaser, who being evicted by paramount title from four of them (the testator having himself conveyed them away before the 3 Ohio, 211 ; Clark v. Parr, 14 id. eviction, this being the measure of dani- 121 ; Weiting v. Nissley, 13 Pa. 655. ages in that State on the covenant of Nichols v. Walter, 8 Mass. 243, was a warranty. Notwithstanding these circum- strong case. The plaintiff had received stances, the plaintiff was limited in his a covenant for seisin from the defendant's recovery to the amount which he had testator in a conveyance of property in himself paid for the property. New Hampshire, the consideration for : Carvill v. Jacks, 43 Ark. 439. which was $18.67. The plaintiff sold the 2 This is here noticed lest some expres- property for $113.33, with covenant of sions in Pitcher v. Livingston and Bender warranty, on which he was sued by his v. Fromberger should mislead, grantee, who had been evicted from the 3 See infra, § 168 et, scq. possession, and then recovered $555.49, 4 See Field's Law of Damages, §§ 463- being the value of the laud at the time of 465. 224 § 1G3.] THE MEASURE OF DAMAGES. [CHAP. IX. sale) claimed to be a specialty creditor for the value of the houses and the land ; and the Master of the Rolls, declining even to hear the plaintiff's counsel, said, " I am of opinion that the measure of the damages upon these covenants includes the amount expended in converting the land into the purposes for which it was sold." 1 § 163. Upon this side of the Atlantic, the first case in which the question was considered was Horsford v. Wright, the second case reported in Connecticut, 2 where the court said, " The con- stant rule of this court has been to ascertain damages by the value of the land at the time of the eviction, though the British rule 3 is to give the consideration of the deed. The diversity in this re- spect is undoubtedly founded in the permanent worth of their lands as an old country and the increasing worth of ours as a new country, and it is supposed that the purchaser goes on, improves, and makes the land better till he is evicted," and " immemorial usage in Connecticut " was afterwards said to be the foundation of this rule, which has always been adhered to there. 4 So in Vermont and Maine, it was said that " this rule of dam- ages was established at an early day." 5 In Massachusetts, the leading case upon the subject is Gore v. Brazier, 6 decided in 1807, in which the court endeavored to found the practice upon English authority, saying that however con- venient and proper the feudal rule might have been, yet " when lands were aliened for money, when improvements and agriculture became an important object of public policy, and when the alienor might have no other lands to render a recompense in value, it be- came expedient that another remedy for the purchaser on eviction should be allowed. And it is certain that before the emigration of our ancestors, the tenant, on being lawfully ousted by a title 1 Bunny v. Hopkinson, 27 Beav. 565, award damages to the party injured, either per Sir John Roniilly. It may he here in addition to or in substitution for such incidentally noticed that nnder the recent injunction or specific performance." See statute of 21 & 22 Vict. c. 27, commonly also, as to this act, infra, Ch. XV. called Lord Cairns's Act, it is provided 2 Kirb. 3, decided in 1786. that "in all cases in which a court of 3 Now altered as to leases. See infra, chancery has jurisdiction to entertain an p. 235 et seq. application for an injunction against a 4 Sterling v. Peet, 14 Conn. 245. breach of any covenant, contract, or agree- 5 Drury v. Shumway, D. Chip. (Verm.) nient, or against the commission or con- 111 ; Park v. Bates, 12 Verm. 387 ; Cush- tinuance of any wrongful act, or for the man v. Blanchard, 2 Greenl. (Me. ) 268 ; specific performance of any covenant, con- Swett v. Patrick, 12 Me. 1; Hardy v. tract, or agreement, it shall be lawful for Nelson, 27 id. 525. the same court, if it shall think fit, to 6 3 Mass. 523. is 225 § 164.] THE MEASURE OF DAMAGES. [CHAP. IX. paramount, might maintain a personal action of covenant broken on a real covenant of warranty." * In Louisiana, 2 and the Province of Quebec, 3 the rule of the civil law is of course adopted. § 164. The cases which support the opposite rule are much more numerous. In South Carolina, the law was at first unsettled. The early cases adopted the rule just referred to, 4 but this was soon departed from, and the measure of damages limited by the consideration money. 5 By statute, moreover, it has been declared that " in any 1 But see as to this, supra, p. 113 et seq. The authorities, however, cited in support of these remarks (Waters v. Dean, 1 Brownl. 21 ; 2 id. 164), give no different rule of damages from that which existed before at the common law. The decision in Massachusetts was, however, said to be " conformable to principles of law applied to personal covenants broken, to the an- cient usages of the State, and the decision of our predecessors supported by the prac- tice of the legislature " (some of these de- cisions are referred to in the opinion, but are not to be found reported), and its au- thority has been consistently followed in that State. Caswell v. Wendell, 4 Mass. 108 ; Bigelow v. Jones, id. 512 (and not- withstanding an apparent decision to the contrary in Sumner v. Williams, 8 id. 221) ; Norton v. Babcock, 2 Met. 516 ; White v. Whitney, 3 id. 89. In Sumner v. Williams the action was on the covenants for seisin, of right to convey, against in- cumbrances, and of warranty. The court refused to assess the damages by the value of the land at the time of eviction, as con- tended for by the plaintiffs, but at the same time treated the case as if brought upon " covenants broken at the time of the execution of the deed ; " though im- mediately after it is said, " Moreover, if the action had been commenced on cove- nants which respect the title, there is no doubt the measure of damages would have been the purchase money with in- terest." 2 Bissell v. Erwin, 13 La. 148 ; Hale v. New Orleans, 18 La. An. 321. The rule of the civil law (which, in its endeavor to afford in every case a full compensation to 226 the party injured, necessarily was in many instances arbitrary and unsettled, and which as to warranty recognized no distinction between real and personal property) may be found in the Digest, lib. xix. tit. 1, § 45 : " Illud expeditius vidcbatitr; simihi a/ienam aream vendideris, et in earn ego ozdificavero, atquc ita cam dominus evin- cit : nam, quia possum, petentum (domi- num), nisi impensam, ozdificiorum solvat, doli mali cxceptione summovere, magis est ut ea res ad periculura venditoris non per- tineat. Quod et in servo dkcndurn, est,, si in servitutem, non in libcrtatem evincere- tur, ut dominus mercedes et impensas prozstare dcbeat. Quod si emptor non pos- sideat ozdificium vel servum, ex empto habebit actionem ; in omnibus tamen his casibus, si sciens quis alienum vendidcrit, omniinodo tencri debet." See also 1 Do- mat, part 1, book 1, tit. 2, §§ 15, 16, 17 ; 1 Cushing's Dom. 233. For the Scotch law, see 1 Erskine's Law of Scotland, book 2, tit. 3, § 13. "Absolute warrandice in case of eviction affords an action to the disponee against the disponor, for making up to him all that he shall have suffered through the defect of the right, and not simply for his indemnification by the dis- ponor's returning the price to him," etc.; also Dictionary of Scotch Law, tit. "War- randice." See Sedgwick on Damages, ch. vi. 3 Dupuy v. Ducondu, 6 Canada, S. C. 425. * Liber v. Parsons, 1 Bay, (S. C.) 19 ; Guerard v. Rivers, id. 265 ; and see With- erspoon v. Anderson's Ex'rs, 3 Desaussure, 245. 6 See an elaborate opinion of Brevard, § 164.] THE MEASURE OF DAMAGES. [CHAP. IX. action or suit at law or in equity for a reimbursement or damages upon covenant or otherwise, the true measure of damages shall be the amount of the purchase money at the time of the alienation with legal interest," l but it was also said that the rule of law was settled long before the enactment. 2 So in New Jersey, an early decision at Nisi Prius allowed the plaintiff to give evidence of his improvements in order to increase his damages, 3 but in subsequent cases every allowance for im- provements has been rejected. 4 So in Virginia, there was an early case to the same effect as those in ~Ke\v England, 5 but it was afterward departed from. 6 In Stout v. Jackson, 7 the subject was elaborately examined and it was held that the safer rule of damages was to measure them by the value at the time of the conveyance, and this was considered as finally settled by the subsequent case of Threlkeld v. Fitzhugh, 8 and the latest cases have declared this to be the settled law of the State. 9 So in Tennessee, an early case left this question undetermined, 10 but by recent authorities it is said to be now settled. 11 The rule that the measure of damages on the covenants for quiet enjoyment and of warranty is limited by the consideration money and interest may be said to be now settled law in the States of New Hampshire, 12 New York, 13 New Jersey, Pennsylva- J., in Furman v. Elmore, cited in the note 9 Moreland v. Metz, 24 W. Va. 119 ; to Mackey v. Collins, 2 Nott & McC. 189; Butcher v. Peterson, 26 id. 447. as also Henning v. Withers, 3 Bvev. 458; 10 May v. Wright, 1 Overt. 385. Wallace v. Talbot, 1 McC. 468 ; Ware v. u Elliott ^.Thompson, 4 Humph. 101; Weathnall, 2 id. 413 ; Earle v. Middleton, Shaw v. Wilkins, 8 id. 647 ; Aiken v. Sut- Cheves, 127 ; and Pearson v. Davis, 1 tie, 4 Lea, 103, 134 ; Moses v. Wallace, 7 McMull. 37. id. 413 ; Mette v. Dow, 9 id. 93. 1 Stat. 17th December, 1824, § 4; also 12 In Loomis v. Bedel, 11 N. H. 87, the Gen. Stats. 1882, ch. 59, p. 538, § 1832. rule was considered to be as yet unsettled, 2 Earle v. Middleton, Cheves, 127 ; and in Wilson v. Cochran, 14 id. 399, the Lowrance v. Robertson, 10 S. C. 8. court said, " We are not aware of any de- 3 Hulse v. White, Coxe, 173. cision which settles the matter authorita- 4 Stewart v. Drake, 4 Halst. 142 ; tively in this State;" but in the more Holmes v. Sinniekson, 2 Green, 313; Mor- recent case of Willson v. Willson, 5 Fost. ris v. Rowan, 2 Harr. 304. 236, the subject was carefully considered, 5 Mills v. Bell, 3 Call, 277. and the damages fixed by the considera- 6 Nelson v. Matthews, 2 Hen. & Munf. tion money, and in Foster v. Thompson, 164. 41 N. H. 379, this was considered as 7 2 Rand. 132. settled law. 8 2 Leigh, 463 ; Jackson v. Turner, 5 13 Bennett v. Jenkins, 1 3 Johns. 50 ; id. 119; Haffey v. Burchetts, 11 id. 88 ; Kelly v. Dutch Church, 2 Hill, 116; Kin- Click v. Green, 77 Va. 827. ney v. Watts, 14 Wend. 38: Paters v. 227 164.] THE MEASURE OF DAMAGES. [CHAP. IX. nia, 1 Virginia, Ohio, 2 North Carolina, 3 South Carolina, Georgia, 4 Kentucky, 5 Indiana, 6 Tennessee, Arkansas, 7 Missouri, 8 Iowa, 9 McKeon, 4 Denio, 550. Mr. Sedgwick (Damages, 168) mentions that the revisers of the New York statutes proposed to iix the measure of damages by the value at the time of eviction, with interest, costs, etc., but that the provision was not finally adopted. In the case of a lease, however, the rule in New York, as in England, is that the measure of damages is the value of the term lost, over and above the rent reserved. Mack v. Patchiu, 42 N. Y. 167; and see infra. 1 Bender v. Fromberger, 4 Dall. 441 ; King v. Pyle, 8 Serg. & Rawle, 166 ; Brown v. Dickerson, 12 Pa. 372 ; McClure V. Gamble, 27 id. 288 ; Cox v. Henry, 32 id. 19. See an elaborate argument in McClowry v. Croghan, 1 Grant, 307, as to the measure of damages for a breach of contract to lease, which the court held could not be measured by the value of the contract but must be limited to the con- sideration agreed to be paid. 2 King v. Kerr, 5 Ohio, 154 ; Foote v. Burnet, 10 id. 317; Clark v. Parr, 14 id. 118; Vail v. Railroad Co., 1 Cincin- nati Sup. Ct. R. 573 ; Wade v. Comstock, 11 Ohio, 82. In this State, a statute, passed 10th March, 1831, called "The Oc- cupying Claimant Act," provided that "occupying claimants, being in quiet pos- session of lands under title from some public office or deed duly authenticated and recorded, or under a tax title, or sale by order of court, etc., shall not be evicted or turned out of possession by any person who shall set up and prove an adverse and better title, until the occupying claimant shall be paid the value of all lasting and permanent improvements made, etc., un- less tin- occupying claimant shall refuse to pay the value of the land without the im- provements, if demanded by the successful claimant." Statutes of Ohio, 1841, § 607. There were former statutes on this subject which this supplied. This provision is re- enacted in substantially the same words in the Rev. Stats, of Ohio, 1884, § 5786. See also as to Kentucky, Hart v. Baylor, 1 Hard. 597 ; Cox v. Strode, 2 Bibb, 278. If improvements are to be paid for at all, 228 it certainly seems most rational that the expense should be borne by the party who reaps their benefit, and this rule may have the effect of forcing the real owner to a speedy assertion and proof of his superior title, since few men would be willing to pay for improvements which they did not themselves direct. The rule in equity, where its aid is invoked by the real owner, is in accordance with the principle of this statute, but is not entirely free from in- convenience in its application. See 2 Story's Eq. §§ 799, 1239, and the author- ities in the note to page 1029 of Sugden on Vendors, 14th ed. 3 Philips v. Smith, 1 Car. Law Repos. 475 ; Williams v. Beeman, 2 Dev. 483 ; West v. West, 76 N. C. 45 ; Nesbit v. Brown, 1 Dev. Ch. 30. This case went so far in support of the rule, that on an agreement that in case of eviction the covenantee should recover twice the consideration money and all costs, the court held this to be a penalty and that only the purchase money could be recov- ered. 4 Rev. Code, 1882, p. 739, § 2948. Davis v. Smith, 5 Ga. 285, where is an elaborate opinion by Nesbit, J. In Mar- tin v. Atkinson, 7 id. 228, the contract was executory as to one of the lots, a " bond for titles" only having been given. There were also express representations made by the vendor that he would pay for improve- ments. In Davis v. Smith, also, some of the cases cited were those of executory contracts and some on the covenant for seisin. 5 Cox v. Strode, 2 Bibb, 279 ; Booker v. Bell, 3 id. 175 ; Hanson v. Buckner, 4 Dana, 253 ; Pence v. Duval, 9 B. Monr. 49. 6 Reese v. McQuilkin, 7 Ind. 450. 7 Logan v. Moulder, 1 Ark. 323 ; Car- vill v. Jacks, 43 id. 439. 8 Dickson v. Desire, 23 Mo. 166 ; Tong v. Matthews, id. 437. 9 Stewart v. Noble, 1 G. Gr. 28 ; Swaf- ford v. Whipple, 3 id. 263 ; Wilhelm v. Fimple, 31 Io. 137. § 165.] THE MEASURE OP DAMAGES. [CHAP. IX. Wisconsin, 1 Maryland, 2 Nevada, 3 Nebraska, 4 Montana, 5 Texas, 6 Kansas, 7 Dakota, 8 and California ; 9 and such a rule has also been adopted by the Supreme Court of the United States. 10 Some of the reasons which support these authorities have already been given in treating of the measure of damages on a breach of the covenant for seisin, on which as we have seen it is conclusively settled in every State in the Union in which the subject has been discussed that the damages are to be measured by the value of the land at the time of its alienation, which is established prima facie by the consideration named in the convey- ance. And if it be inquired why, if this rule be so generally and rigidly adhered to as to one of the covenants for title, has a dif- ferent one been anywhere established as to another (since all the arguments drawn from the civil law in favor of recompensing an innocent party for improvements made upon the land which he had supposed was his apply with equal force to both), the only answer appears to be the technical one, that the damages are to be estimated by the value of the land at the time of the breach of the covenant. The covenant for seisin is broken as soon as it is made — that for quiet enjoyment or of warranty is not broken until eviction ; hence the difference. § 165. This answer seems scarcely satisfactory. Technically speaking, the covenants are no more than an expression of the intention of the parties, and within certain well-defined rules these are to be construed according to this intention. A vendor when making them never dreams of such an enlarged liability by reason of his purchaser's improvements ; and on the other hand, the latter takes the title for what it is worth at the time ; he 1 Blossom v. Knox, 3 Chand. 295 ; 9 McGary v. Hastings, 39 Cal. 360 ; Lawton v. Howe, 14 Wis. 241 ; Messer v. 1 Hittell'sCode and Stats., IS 76, p. 876, Oestreich, 52 id. 684 ; Mclnnis v. Ly- § 8304. man, 62 id. 191 ; Conrad v. Trustees, 64 10 Hopkins v. Lee, 6 Wheat. (S. C. id. 258. U. S. ) 118. There are many other author- 2 Crisfield v. Storr, 36 Md. 150. ities cited in 2 Greenleafs Evidence, § 269, 3 Dalton v. Bowker, 8 Nev. 190 ; Hoff- 4 Kent's Commentaries, 471, and Sedg- man v. Bosch, 18 id. 360. wick on Damages, 175, as supporting this 4 Patrick v. Leach, 1 McCrary, (C. C. position, but many of them are not based U. S.) 250. upon covenants for quiet enjoyment or of 5 Taylor v. Holter, 1 Mont. 688. warranty but upon the covenant for seisin, 6 Simpson v. Belvin, 37 Tex. 674. respecting which there has not been for 7 Stebbins v. Wolf, 33 Kans. 765. many years the least conflict of authority 8 2 Levisee's Rev. Codes, 1883, p. 110, in the United States as to the measure of § 1951. damages. 229 § 166.] THE MEASURE OP DAMAGES. [CHAP. IX. makes, by his contract, the purchase money the measure of the value of the title, and takes security by means of covenants in that amount and no more. 1 Nor is what some of the decisions call the equitable view of the case free from anomalies. If it is hard that a purchaser acting in good faith should lose his im- provements, it is equally hard that a vendor acting also in good faith should pay for them. If a vendor, with the honest belief that an estate is his, sells it to a purchaser who with the same conviction improves it and enhances its value, and the real owner, immediately on discovering his title, sues for and recovers his estate, the profit and loss should, according to the view so taken, be adjusted by taking from the vendor much more than the consideration money he received, paying it to the purchaser, who will thereby be put in the same position he was in before, and letting the real owner retain and reap the benefit of all the im- proved value of the estate. 2 It is difficult to perceive the equity of this rule and courts of equity have not followed it. It is a familiar principle in equity that if the real owner of an estate invoke its aid for the recovery of the estate from one who acting in good faith has put improvements upon it, that aid shall be given to him only upon the terms that he will make due compen- sation to such innocent person to the extent of the benefits which will be received from those improvements, since he who seeks equity must do equity. 3 § 166. The practical application of the rule that the damages are measured by the value at the time of eviction may, moreover, 1 Kinney v Watts, 14 Wend. (N.Y.) 41. may he no mala fides in any one of the 2 The text was approved in Hertzog parties, and the case supposed is not an v. Hertzog, 34 Pa. 422. The following extreme one. It will happen where the remarks were contained in the opinion parties act in good faith, and the owner delivered in the case of Willson v. Will- happens for a time to be ignorant of his son, 5 Foster, (N. H.) 236, about the legal rights. The other rule, which makes same time as the text above was first writ- the consideration paid the measure of ten : " Let us suppose that after a sale damages, has at least the recommendation the land increases in value, either by a of dividing the loss between the buyer and rise in its price or by the improvements the seller ; for the seller loses the con.sid- made upon it by the purchaser, a third eration, and the buyer loses the value of person recovers the land by a paramount the improvements." title, and the buyer sues the seller on the 3 Story's Eq. Jurisp. §§ 799, 1237 . Hoomes, 8 Gratt. (Va.) 353- 441, the court seemed to be of opinion (p. 403) that it was not necessary that any estate should pass from the cove- nantor to the covenantee in order that the covenant should pass to an assignee. The case was one of a devise to six children, and should any die without issue living at his death, his estate should be divided equally among the survivors. One of these devisees conveyed to a purchaser, the others joining in a covenant in the deed to warrant and defend the land against themselves, as contingent devisees under their father's will, and all claiming under them. The purchaser resold the land to one against whom the children of one of these devisees recovered an undivided share under proceedings in partition (1 Grat. 302), and it was held that the covenant of their father would pass to the second purchaser, so as to entitle him to an injunction restraining them from pro- ceeding with their partition. See also the case of Martin v. Gordon, 24 Ga. 536, noticed infra, p. 345, n. 4. 1 Per Martin, B., in Cuthbertson v. Ir- ving, 4 Hurl. & Norm. (Exch.) 758. See infra., p. 349, n. 2. ' 2 21 Wend. (N. Y.) 120. 343 § 233.] EXTENT TO WHICH COVENANTS [CHAP. X. these covenants pass where the possession merely goes from one to another by deed and there is afterwards a total failure of title ; but there are several to the contrary. 1 Nor when we take the word estate in its most comprehensive meaning can it be said there is none, in such a case, to which the covenant may attach. It is said by Blackstone to signify the condition or circumstance in which the owner stands with respect to his property ; 2 and a mere naked possession is an imperfect degree of title, which may ripen into a fee by neglect of the real owner. It is, in short, an inchoate ownership or estate, with which the covenants run, to secure it against a title paramount, and in that sense is assigna- ble within the restriction insisted upon. It is said in several cases, that the covenants of warranty and quiet enjoyment refer emphat- ically to the possession, and not to the title. 3 The meaning is that however defective the title may be, these covenants are not broken till the possession is disturbed. When the latter event transpires, an action lies to recover damages for the failure, both of posses- sion and title, according to the extent of such failure." In Massachusetts, the case of Slater v. Rawson 4 was decided at about the same time as Beddoe v. Wadsworth. A conveyance had been made with covenants of good right to convey and of warranty to one under whom the plaintiffs claimed as assignees through several mesne conveyances. They yielded to an ouster under title paramount, which they clearly showed, but failed in an action against the original covenantor to prove any actual occupancy or seisin of the land by him at the time of his entering into the covenants. On this ground the verdict for the plaintiffs was set aside and a new trial ordered. " To support an action by an assignee on the covenant of warranty," said the court, " it is necessary that the warrantor should have been seised of the land ; for by a conveyance without such seisin the grantee acquires no estate and has no power to transfer to a subsequent purchaser the 1 Those cited by the learned judge himself has given, recover of a prior ven- were Withy v. Mumford, 5 Cow. (N. Y.) dor without first making good the damages 137 ; Garlock v. Closs, id. 143 ; Markland of the party evicted. See supra, § 215. v. Crump, 1 Dev. & Batt. (N. C.) 94; -' 2 Black. Com. 103. Booth v. Starr, 1 Conn. 244, 248. These 8 Waldron v. McCarty, 3 Johns. (N. Y.) cases however do not decide this, unless 471, per Spencer, J.; Kortz v. Carpenter, incidentally. Their point is that an in- 5 id. 120. termediate vendor cannot, in respect of 4 1 Met. (Mass.) 450; 6 id. 439. his liability upon the covenant which he 344 § 233.] FOR TITLE RUN WITH LAND. [CHAP. X. covenants in his deed, because, as no estate passes, there is no land to which the covenants can attach. If, therefore, the defend- ant at the time of the making of his deed was not seised, then the covenant of warranty did not pass to the plaintiffs as assign- ees, and the only liability of the defendant is upon his covenant of seisin, which covenant, for the reasons already stated, 1 is wholly unavailable to the plaintiffs." On a subsequent trial, however, 2 the plaintiffs gave evidence that both the covenantor and his father had exercised acts of ownership over the property, had claimed it as their own, been upon it, cut timber, etc. Although at Nisi Prius the court seemed to be of opinion that these acts, being mere acts of trespass upon unenclosed wild land, would not operate as a disseisin of the true owner, yet a verdict was taken for the plaintiffs, and upon a motion for a new trial the Supreme Court held that whatever might be the distinction between dis- seisin and dispossession, there was, according to modern authority, no legal difference between seisin and possession, nor was it ne- cessary, it was said, to decide this question, " for if the defendant was in possession when he conveyed, claiming to hold the whole land conveyed, he had a good right to convey his title, whatever it was. 3 His estate passed by his deed to the grantees, and all his covenants were binding." And upon the familiar doctrine that although an actual possession may not amount to a disseisin as against the lawful owner, yet it will be good as against a mere stranger, it was held that " the defendant had acquired, by pos- session and occupation, a legal though not an indefeasible title to the land in question. He was lawfully seised and possessed of it against all the world, the lawful owner only excepted. His title, therefore, by his grant passed to his grantees, and from them and intermediate conveyances to the plaintiffs, with the covenant of warranty annexed, and for the breach of that covenant the plain- tiffs are well entitled to damages," and judgment was therefore entered upon the verdict. 4 1 That is, because the plaintiffs sued as fessed to follow that of Beddoe v. "Wads- assignees of the original covenantee. •worth, but virtually did not. The case 2 Slater v. Rawson, 6 Met. (Mass. ) 439. was, however, overruled on appeal, 6 Barb. 8 This doctrine, which is almost peculiar S. C. 166, and the cases cited in the text to some of the New England States, was at- approved, as they were also in Dickinson tempted to be explained, supra, § 42 et seq. v. Hoomes, 8 Grat. (Vs..) 399, and in Lewis 4 The decision in New York of Fowler v. Cook, 13 Ired. L. (N. C.) 194. In this v. Poling, 2 Barb. S. C. (N. Y.) 306, pro- last case, the court, after referring to the 345 233.] EXTENT TO WHICH COVENANTS [CHAP. X. In Maine x and Missouri, 2 moreover, this doctrine has been approved and followed, and from the course of decision in Ohio heretofore noticed, 3 it must, it would seem, be taken to be the law in that State. In a somewhat recent case in the Federal facts (which have been cited, supra, p. 329, n. 3, in connection with another part of this subject), said: "The defendant's counsel laid down the position that a warranty, being a covenant annexed to an estate, could not continue longer than the estate. . . . We admit the position that the war- ranty is gone whenever the estate to which it is annexed determines ; for it is a mere incident of the estate, and the incident cannot continue longer than the principal; as if there be an estate to A. for life, with warranty to him and his heirs and assigns, at the death of A. his estate determines, and the warranty is at an end. This case is put by Coke, and the principle is con- tained in all the books. The error of the defendant's counsel is in reference to the meaning and application of the principle. When does an estate determine ? When it is ' spent,' — expires by ' the terms of its own limitations.' If there is an eviction by title paramount, the estate is, in one sense, at an end, but has not determined, so as to deprive the party of the benefit of his warranty ; for if so, a warranty would never be of any force or effect. Until the eviction, the party has no use for it, and after that it is gone. This proposition certainly cannot be maintained." See also the dissenting opinion of Pearson, J., in Spruillv. Leary, 13 Ired. L.(N. C.) 408; in- fra, Ch. XI. In Martin v. Gordon, 24 Ga. 536, Benning, J., after quoting in full the case of Noke v. Awder, said : "This case has been repeatedly followed by the Eng- lish courts down to this day. It has not been followed by the courts of New York, or those of Massachusetts, or those of some of the other States of the United States, but those courts, if one may judge from the face of their decisions, seem rather to make the law yield to the case, than the case to the law. The power to do this is not given to any court of this State. The English cases, I think, speak the law of Georgia." The decision, however, sustained the right of the assignee to recover on the covenant 346 of warranty, but approved the admission of evidence to show that the real consider- ation paid to the original covenantor was much less than that mentioned in the deed ; Lumpkin, J., in the opinion deliv- ered by him considering that ' ' the result of a careful examination of the authorities established that subsequent purchasers were affected by the equities between pre- vious parties." See, however, as to this, supra, § 222. 1 Wilson v. Widenham, 51 Me. 566. 2 Dickson v. Desire, 23 Mo. 151. "Al- though the conventional warranty of the common law," said Leonard, J., in the first of these cases, "was considered so entirely an accessory obligation that it could sub- sist only as an incident to some estate in the land, this produced no inconvenience in the ancient system of conveyancing by feoffment and other similar assurances, which, operating upon the possession, cre- ated by their own force estates de facto (tortious estates as they were called) suf- ficient to support the warranty and carry it along with the land to all the subse- quent successors. In the process of time, however, other modes of transfer were in- troduced under the statute of Uses, which operated upon the right only, and the per- sonal covenants of title superseded in Eng- lish conveyancing the ancient warranty of the common law, which, yielding a recov- ery in money instead of land, w r ere for that reason deemed personal covenants. . . . The general doctrine of the old law as to the real warranty that where no estate passes to which the warranty can be an- nexed the benefit of it does not pass to a subsequent assignee, admitting it to be applicable to the modern covenants for title, is obviated in cases like the present by the American decisions, that a convey- ance by a grantor in possession under a claim of title passes an estate to the gran- tee sufficient to carry the covenants to any subsequent assignee. " 3 See supra, p. 312, n. 3. § 233.] FOR TITLE RUN WITH LAND. [CHAP. X. Court of Oregon, the doctrine of this class of cases was consid- ered to reach to the extent of deciding that whenever possession had gone with the deed there was a sufficient estate to carry the benefit of the covenants to an assignee. 1 An Illinois case in 1870 went still further. 2 The defendants, having conveyed land of which they were not in possession, with a covenant of warranty against all patent titles, were held liable upon their covenant in an action brought by the evicted assignee of their grantee. It was contended on behalf of the defendants, that as they were not in possession the plaintiff could not main- tain the action, and the authority of the first decision in Slater v. Rawson was strongly relied on ; but the court declined to follow the doctrine of that case, and even thought it illogical to hold, as in the second decision, that a tortious possession by the covenan- tor sufficed to attach the covenants to the land, and not to hold that the same result followed when the grantee took possession of land which had previously been vacant. 3 1 Fields v. Squires, 1 Dearly, (C. C. U. S.) 366, 389. "It is also objected," said Deady, J., "that the defendant is not liable on this covenant to the assignee of the covenantee, because it does not run with the land. The reason given for this position is that no estate passed to the as- signee by the deed, the grantors not hav- ing any interest in the land at the time. This was the doctrine of the common law as to conveyances of estates less than free- hold, which passed without livery of sei- sin. Noke v. Awder, Cro. Eliz. 417. And as under our modern system of convey- ancing, freeholds pass without livery of seisin, it was held at one time that the doctrine became applicable to conveyances of such estates, and in case the grantor had no interest in the land, the assignee of his grantee could not sue upon the cov- enants, because they only passed as an in- cident of the estate. But this doctrine has been modified substantially, so that it may be said that whenever possession is taken under the deed, there is sufficient estate to carry the covenants to the as- signee. Beddoe v. Wadsworth, 21 Wend. 123 ; Slater v. Rawson, 6 Met. 439 ; Rawle on Covenants, 382 et seq. This doctrine is peculiarly adapted to the early circumstances of this country. For years before the passage of the Donation Act, the right of the settlers upon the land was a mere possession, with an expectation of future title from the United States. Un- der these circumstances, in all the towns, this possession was conveyed and recon- veyed with covenants for the title ex- pected, and it is proper and safe to hold with these authorities that a suffi- cient estate passed ro carry the cove- nants to the subsequent occupants and assignees." 2 Wead v. Larkin, 54 111. 489. The facts of this case will be found in Harding v. Larkin, 41 id. 413, and Wead v. Lar- kin, 49 id. 99. 3 Supra, p. 344. The court said : " If the question of possession is at all impor- tant in reference to the passing of this covenant to an assignee, it is not the possession of the covenantor that is ma- terial, but that of the covenantee when he makes his conveyance. Then is the first time that the covenant passes as at- tached to the estate. When first made, it is made to the covenantee directly and in person, and he takes its benefit by virtue of his contract, and not as in- cident to the estate. It can certainly 347 234.] EXTENT TO WHICH COVENANTS [CHAP. X. § 234. The reasons which, from convenience, may support these cases will readily appear when we consider that it could hardly be considered as settled by that class of cases of which Xoke v. Awder was at the head what exact amount of interest was sufficient to carry with it covenants for title to an assignee ; l in other words, how small the estate might be which, passing to an assignee, would vest in him the benefit of these covenants; 2 and there was reason for every liberal construction which could be reasonably adopted in order to avoid the consequences, at the present day, of the technical doctrine of these cases. This doc- trine, at the period when freeholds were conveyed by feoffment with livery worked no evil, as has been said, except with respect to leases. But it is now far different, and when a conveyance passes no greater estate than the grantor himself had, it seems the height of hardship to deny to a subsequent assignee the bene- fit of that grantor's covenants, because no legal title to the land had passed with which those covenants could run. For then the more those covenants are falsified, the better the position of the never be held that if he takes posses- sion and is evicted by paramount title he cannot recover because the land was vacant when the deed was made to him. Even then, if we concede that he must take possession before he can pass the cov- enant to his grantee, as attached to the land, we are wholly unable to see why it does not pass if he has taken possession, or what the possession or non-possession of the covenantor, when the covenant was made, has to do with its passing to the grantee of the covenantee." And the court also inclined to the opinion that each grantor was estopped by his deed from denying that he had an estate to which the covenants would relate. It is to be observed that the Illinois statute of conveyances, § 4, making the transfer of interests in land by parties not in possession as effectual (for the purpose of the interests conveyed) as if they were in possession, was strongly relied on by the appellees, and that while the court did not refer to this statute, its exist- ence cannot have been without effect in bringing about the conclusion "that where the covenantee takes possession 348 and conveys, the covenant of warranty in the deed to him will pass to his gran- tee, although the covenantor may not have been in possession at the time of his conveyance." In Vancourt v. Moore, 26 Mo. 92, cited by the appellees in Wead v. Larkin, it was stated obiter that the similar Missouri stat- ute " does away with the rule of the com- mon law which required a grantor of land to be seised thereof when he makes his deed of conveyance, in order that his cove- nant of warranty may attach to or run with the land." 1 Thus, in Dickinson v. Hoomes, 8 Grat. (Va.) 37-4 ( cited supra, p. 342, n. 1), it was argued for the plaintiff that the contingent interest of one of several cove- nantors dependent upon another of them dying without issue was a sufficient estate to carry the covenant to an assignee, and the court went even further, and seemed to be of opinion that it was not necessary that any estate should pass from the cove- nantor. 2 See note to Spencer's case, 1 Smith's Leading Cases. § 236.] FOE TITLE RUN WITH LAND. [CHAP. X. covenantor ; and when no estate has passed from him, he is pro- tected on this very ground. § 235. When, therefore, a grantee has received by virtue of his deed a possession under color of title, which if it endure for the length of time required by the limitation acts will be valid as against all the world, and which possesses all the qualities of an estate as respects capability of passing by assignment, descent, or devise, it can scarcely be thought inconsistent with principle to hold that such a possession is sufficient to convey to subsequent assignees the benefit of the covenants for title of the original grantor. § 236. But it would seem to be no longer necessary to resort to expedients in order to escape from the logical results of the decision in Noke v. Awder. The later English authorities have subjected it to a severe examination, and it is now considered that the case decided, not that when no estate passed there was noth- ing with which the covenants for title could run, nor that cove- nant never lay by the assignee upon the assignment, 1 but merely that as the plaintiff by his own showing never had conveyed to him any estate in the premises, he could not sue upon the cove- nant as one running with the land ; in other words, that the case depended entirely upon a question of pleading, viz. the insuffi- ciency of the breach. 2 It is certainly matter of regret that this 1 A question which, it is considered, or, supposing that the declarations were did not arise, and was not necessary for read as alleging a valid lease from John the decision of the case. See Palmer v. King to the defendant, then, consistently Ekins, 2 Raym. 1550. with the declaration, Thomas King, who 2 Cuthbertson v. Irving, 4 Hurl. & was alleged to have ousted the plaintiff, Norm. 755, 1 Smith's Lead. Cas. *136. had no title, was a mere trespasser, and so In the notes by the English editor of the there was no breach of the general cove- latter to the edition of 1S66 (omitted in nant for quiet enjoyment. So that, qua- the later editions because perhaps ren- cunque via data, the action could not be dered unnecessary) it was said, " In Noke maintained. And the court are reported v. Awder the plaintiff (to follow the argu- to have held 'that it was clear upon the ment of Coke, Attorney-General, for the matter shown that the action lay not, for defendant) was in this dilemma, that ei- the plaintiff ought to have shown an es- ther the lessor John King had, upon the tate by descent in John King at the time plaintiffs showing, no estate, and then no of the lease and the assignment made, or term was created by the lease, and so no an estate whereby he might make a lease, estate passed by the assignment from the and that this was afterwards determined ; defendant to Abel, consequently there was and so confess the estate in the lessor, no actual privity of estate between the de- otherwise this action of covenant lieth not, fendant and the plaintiff, nor any estop- and it never lies upon the assignment of pel, because the facts were stated on the an estate by estoppel. Wherefore they record, and the estoppel not relied upon ; were of opinion to have then given judg- 349 § 236.] EXTENT TO WHICH COVENANTS, ETC. [CHAP. X. result should not have been sooner worked out, and that that which was a mere professional triumph of Sir Edward Coke upon a question of pleading should have disturbed the courts of last resort upon both sides of the Atlantic for more than a century. ment against the plaintiff, but afterwards they would advise until the next term.' If the judgment of the court had finally proceeded upon this reasoning, it would only have been a decision that as the plaintiff, upon his own showing, never had conveyed to him any estate in the prem- ises, he could not sue upon the covenant as one running with the land. The es- toppel was not pleaded, but the contrary ; and the placitum in Comyn's Digest, Cov- enant (B 3), 'So the assignee of a lease which appears to be good only by estoppel shall not have covenant, R. Cro. El. 437, Mo. 419, correctly limits the obiter opin- ion of the court (which did uot form the basis of their final decision) to cases where it appears that no estate passed to the covenantee.' The ultimate decision in Noke v. Awder was founded upon the in- sufficiency of the breach, assuming the 350 lease to have been valid in interest and not merely by estoppel, for the report pro- ceeds, 'Note: This was continued until Trin. 41 Eliz., and then being moved again, all the justices resolved that the assignee of a lease by estoppel shall not take advantage of any covenant, but that it shall not be intended a lease by estoppel, but a lawful lease. But no sufficient title be- ing shown to avoid it, it is then as an en- try by a stranger without title, which is not any breach. Wherefore it was ad- judged for the defendant.' Noke v. Awder cannot therefore be considered as estab- lishing the general proposition, that the benefit of covenants in a lease which op- erates by estoppel does not run with the reversion ; or that it is competent for the lessee or his assignee to raise the point against the assignee of the lessor." § 238.] OPERATION OF COVENANTS BY WAY OF ESTOPPEL. [CHAP. XL CHAPTER XI. THE OPERATION OF COVENANTS FOR TITLE BY WAY OF ESTOPPEL OR REBUTTER. 1 § 237. The operation of the ancient warranty by way of re- butter was far more effective in every-day use than the remedy it afforded by means of voucher or a warrantia chartce, and upon the effect of this rebutter in its descent upon heirs the doctrines of lineal and collateral warranty depended. In a former chapter, 2 an attempt has been made to sketch the origin of collateral war- ranty and to refer to the successive restrictions which Parliament imposed upon it, " until its effect and operation were reduced to so narrow a compass as to become in most respects a matter of speculation rather than of use." 3 § 238. The obligation of the heir to render to the evicted vas- sal or donee of his ancestor an estate equal in value to that which the latter had lost, depended upon the condition that he had other sufficient lands by descent from the warranting ancestor. 4 "But, though without assets, he was not bound to insure the title of another, yet in case of lineal warranty, whether assets descended or not, the heir was perpetually barred from claiming the land himself; for if he could succeed in such claim, he would then gain assets by descent (if he had not them before), and must fulfil the warranty of his ancestor ; and the same rule was, with 1 The subject of this chapter is treated several editions, but the views of the re- with accurate learning and his wonted spective authors have remained compara- ability in Judge Hare's note to the Duchess tively unchanged, except that in the present of Kingston's case, 2 Smith's Leading edition of this treatise the writer has en- Cases, of which the first edition was pub- deavored to show that most of the doc- lished in 1844. The first edition of the trine is equitable and not legal, having present treatise was published in 1852, no necessary connection with either the and the writer owes to the note in question law of covenants for title or the law ot much of what he then endeavored to pre- estoppel, sent upon the subject. Since then, the 2 See supra, Ch. I. first edition of Bigelow on Estoppel was 3 Butler's note to Co. Litt. 365 a ; see published in 1872, and the subject there also his note to p. 373. received able and elaborate consideration. * Co. Litt. 374 b. All these works have since gone through 351 § 238. j OPERATION OF COVENANTS FOR TITLE [CHAP. XI. less justice, adopted also in respect of collateral warranty, which likewise (though no assets descended) barred the heir of the warrantor from claiming the land by any collateral title, upon the presumption of law that he might thereafter have assets by descent either from or through the same ancestor." 1 To prevent the injustice, however, which would flow from the warranty of a tenant by the curtesy barring the children of the marriage after their father's death, the statute of Gloucester 2 provided that " if a man alien a tenement that he holdeth by the law of England, his son shall not be barred by the deed of his father (from whom no heritage to him descended) to demand and recover, by writ of mort cTancestor, of the seisin of his mother, although the deed of his father doth mention that he and his heirs be bound to warrant." 3 1 2 Black. Comm. 302, and see supra, § 5 ct scq. 2 6 Edw. I. c. 3. 3 In Todd v. Todd, 18 B. Mon. (Ky.) 144 (supra, § 5), a husband, seised in right of his wife, joined with her in the convey- ance of her land by a deed which contained a covenant of warranty, but which by rea- son of defective acknowledgment was in- operative to pass her estate. After her death the husband married again, and died intestate; there were children of the second marriage, and his estate descended equally to both sets of children. The children of the first marriage brought suit against the personal representative of their father for payment, out of the whole of his estate, of the loss which his breach of warranty had caused to fall upon them alone. In answer to this it was urged that the cove- nant of warranty had not been broken, and consequently no charge upon the estate had been created ; that there was no ex- ample in any of the books for such an action, although occasion for it must fre- quently have arisen, especially between the heir and the executor. But the court said, " It is true that there has been no actual breach of the warranty, because it has been satisfied and a breach prevented by operation of law by the application of the assets in the hands of the heirs in satisfaction of the covenant of their ances- tor. . . . And as they have discharged a 352 liability which was by law a charge upon the whole estate, they have a right to have it thus applied, so that the loss will de- volve equally upon all the heirs. "With respect to the argument drawn from the absence in the books of any analogous cases, it is only necessary to remark that the doctrine of the common law on the subject of warranty and of descents was of such a character as to prevent cases like the present from arising ; and in nearly all the other States of the Union the an- cestor's warranty, in cases like this one, does not have the effect of precluding a recovery of the land by the heirs of his wife, and consequently no such question as the one here presented can arise in those States." The General Statutes of Kentucky, 1881 (c. 63, p. 584, § 4), provide that "no judg- ment of eviction suffered by a husband, or conveyance made by him of the inheritance or freehold of his wife, or other act done by him, shall operate as a discontinuance, or shall prejudice or impair her right of action, or the right of entry of her or her heirs, or such as have right after her death," and also (§18) that if the deed of such grantor warrant the estate purporting to be conveyed against him and his heirs, and any estate, real or personal, shall descend to the claimant, or come to him by devise or distribution, on the side of the grantor, then he shall be barred for the value of the § 238.] BY WAY OF ESTOPPEL. [CHAP. XI. The statute of 11 Hen. VII. c. 20, invalidated all warranties made by a tenant in dower, a tenant for life, or in tail jointly with her husband of lands derived from his ancestors, made either by herself while a widow, or with any after-taken husband ; the statute of 4 Anne, c. 16, § 21, 1 declared that all warranties made by any tenant for life of any lands coming to any person in estate that shall so descend or come to him by descent, devise, or distribution. In Lane v. Berry, 2 Duvall, (Ky.) 282, a tenant by the curtesy conveyed with general warranty, and the children of the marriage having brought ejectment it was held that having inherited other lands from their father they were estopped by their covenant, and this was affirmed on appeal. "There is no conflict," said the court, "between these two legislative en- actments. The first saves the right of the wife and her heirs from defeasance by the unauthorized conveyance of the fee simple title by the husband, and secures to them the right of entry at his death. But the second, nevertheless, bars the right of entry by her heirs if they have received from the vendor an equivalent estate. ... So far as her heirs are concerned the vendor's conveyance does not divest them of their title, unless they inherited some compensa- tory estate from him, when, to that extent, the title passes by estoppel." And so in Proctor v. Smith, 8 Bush, (Ky. ) 81, where a woman and her three children were ten- ants in common of certain land, and she, after conveying the whole with warranty, died devising her entire property to one of the three, the court held that the two children who had received no assets from her could recover their respective shares, but that under the eighteenth section of the statute the third child was barred unless the estate devised was wholly or partially absorbed by the testatrix's debts. A comparison between this case and Jones v. Franklin, 30 Ark. 631, shows clearly the effect of this statute. The facts were substantially the same, but as there was no such statute in Arkansas, the court held that even the child receiv- ing assets was not barred, for, it said, "In this case the land which is the subject of the action did not descend to the appel- lant from the warranting ancestor, but she claimed under the will of her grandfather ; hence the covenant in the hands of the appellee did not bar her title by way of rebutter. " The seventeenth section of the Kentucky statute was not directly referred to by the court in Lane v. Berry, supra. It provided that "a deed and warranty of land pur- porting to pass or assure a greater right or estate than the person can lawfully pass or assure, shall operate to convey or war- rant so much of the right and estate as such person can lawfully convey, but shall not pass or bar the residue of the right or estate purporting to be conveyed or as- sured." The practical effect of the statute (which was a re-enactment of previous legislation) would therefore seem to be, — 1. Under the fourth section, a convey- ance by a tenant by the curtesy without warranty, will not bar the heirs of the wife. 2. Under the seventeenth section, a conveyance with warranty of a larger estate than the grantor has, will not bar those in remainder or reversion without assets ; but, — 3. Under the eighteenth section, if assets descend or come to the latter, they are barred to the extent of their value. In Chauvin v. Wagner, 18 Mo. 553, a husband and wife, seised in her right, con- veyed the land with a covenant for further assurance. By reason of its defective ac- knowledgment the deed did not pass the wife's estate, and it was obviously held that the children were not estopped by their father's covenant, unless it were shown that they had assets by descent from him of equal value. 1 Entitled, " For the amendment of the law, and the better advancement of jus- tice." 23 353 239.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. reversion or remainder should be void, and that all collateral warranties of any lands by any ancestor who had no estate of inheritance in possession in the same should be void as against his heir ; and finally, by the act of 3 & 4 Will. IV. c. 37 and 74, lineal and collateral warranties have been entirely abolished. 1 § 239. While in some of our States this doctrine of rebutter, which sprang from the common law warranty, has been applied to the modern covenants for title, producing results often incon- gruous, and at times of greater or less hardship, 2 yet in other 1 As they have heen in many of the United States. See infra, Ch. XII. 2 In the old case in Massachusetts of Banister v. Henderson, Quincy, 119 (a. d. 1765), it was argued that an estate tail, with cross remainder in tail, could be barred by collateral warranty, but the point was afterwards abandoned, though the editor of the reports seems to think that it was well taken. In Pennsylvania, although the report of the judges in 1808 (3 Binn. 625) considered that the first thirteen and the twentieth and twenty-seventh sections of the statute of Anne were in force in that State, yet the twenty-first section was not so consid- ered ; and in the year 1799, where, in Eshelman's Lessee v. Hoke, 2 Yeates, 509, a tenant by the curtesy, in fulfilment of articles entered into in the lifetime of his wife, conveyed his interest to his eldest son, who conveyed to the purchaser with a covenant of warranty against himself and his brothers and sisters, and the father also gave a covenant indorsed on the deed against himself and his heirs, who after- wards brought an ejectment for their share, it was held that the latter were barred by the collateral warranty of their father, as the statute of Anne had never been con- sidered as in force in Pennsylvania. (The reason why this case did not come within the statute of Gloucester was because real assets had descended to the heirs from the father. ) In the subsequent case of Jourdan v. Jourdan, 9 Serg. & Piawle, 268, it was also held that a collateral warranty barred the heirs of the warrantor ; but, apparently to escape from the hardship of the decision, it was also determined that such warranty descended only upon the eldest son, as 354 heir at common law, and hence did not rebut his brothers and sisters. In a note, however, to the case of Paxson v. Lefferts, 3 Piawle, (Pa.) 67, (quoted in part supra, p. 148, n. 2, and cited with approval in the recent case of Carson v. Cemetery Co., 104 Pa. 575, infra,) it was said : " In this country, where descents are partible, great inconvenience and injustice would ensue from applying the rule that a warranty bound only the heir at common law in the operation of a warranty by way of re- butter. The analogy between the custom of gavelkind and our system of descents affords an exception which we cannot but adopt. It is true that the text of Littleton is express, that a warranty of lands held in gavelkind descends only to the heir at common law, and shall not bind ' the heirs that are heirs according to the custom.' Litt. § 736. The same rule applies to land held in borough English. Id. § 735. In the latter instance the case as put by Littleton appears extremely hard on the purchaser. The youngest son of the tenant in tail, who discontinued with warranty, was not barred, although land to an equal or greater amount in value had descended to him from his father. But the subtle notion of the descent of the warranty on the heir at common law alone, productive of such injurious effects, was got rid of by an ingenious contrivance for the promotion of justice. Although the customary heir was not considered directly liable on the warranty, yet he was held so by reason of the inheritance ; see Coke on Litt. 376 a ; and either by being directly vouched by the warrantee, or by being vouched by the heir at common law, in case the latter alone had been vouched (either of which § 239.] BY WAY OF ESTOPPEL. [CHAP. XI. States the English statutes have been declared to be in force ; 1 in others, they have been re-enacted either literally or in sub- courses was at the election of the war- rantee), the customary heir could be ren- dered liable. See Robinson on Gavelkind, 127; 1 Leon. 112; Cro. Jac. 218; Co. Litt. 12 a, Mr. Hargrave's note (1). The prin- ciple applies with double force in the case of a rebutter. It cannot be conceived that a gavelkind heir, or the youngest son in the case of borough English, who would thus be made responsible if the warrantee were evicted by a stranger, should not be rebutted in case he claimed the land him- self, when the warrantee could thus cir- cuitously recover the same land from him afterwards. In the case of Jourdan v. Jourdan, 9 Serg. & Rawle, 268, the atten- tion of the court was drawn only to the general rule, without its qualification. That decision is the chief source of the present note. It is believed that if the counsel for the plaintiff in error had pur- sued his researches a little further and laid the authorities before the court, the result of the case would have been dif- ferent." In the recent case of Carson v. Cemetery Co., supra, a tenant by the curtesy conveyed land to a stranger by deed purporting to convey the fee and containing the usual covenant of general warranty, and afterward executed to the heirs of his deceased wife, who owned the fee, an agreement which recited a release of the land by them to him without con- sideration, and concluded with a covenant on his part to stand seised of all his real estate to the use of them as his heirs. After his death, having received from him, as his heirs, assets of greater value than the land conveyed, they brought ejectment for the land, but the court, in an opinion which defines with precision the law of Pennsylvania upon the point, held that 1 In Rhode Island, the twenty-first sec- tion of the statute of Anne was declared by Story, J., in Sisson v. Seabury, 1 Sum. (C. C. U. S.) 259, to have been included in the report made in 1749 of the English statutes in force in that State ; and hence it was held that where one who in fact was tenant for life with remainder to his chil- the covenant of warranty operating by way of rebutter barred their title. In the subsequent case of Baily v. Allegheny Bank, id. 425, lands were, by virtue of a direction for sale in a will, equitably converted into personalty. One of the legatees mortgaged her interest, and after- ward all the legatees agreed to take the property as realty, and in a contest be- tween the mortgagee and a subsequent mortgagee it was obviously held that the first mortgage, "which, as between the parties was an equitable assignment of the interest springing out of the realty, still adhered to and bound it in its newly as- sumed form of land." The argument pressed upon the court as to the effect of the recording acts (as to which see infra) had no application, because one taking title or an incumbrance from the legatee was bound to search the registry up to the date of the testator's death, and this would have disclosed the first mortgage. In Massachusetts, in Bates v. Norcross, 17 Pick. 14, the plaintiff in an action of ejectment deduced a perfect title to himself for the premises in question, but the defendant proved that the plaintiff's wife was the sole heiress of one who, though without title, had purported to sell the same land by a deed which contained a covenant of warranty, and urged that as this warranty would descend upon the plaintiff's wife, who had received assets by descent out of which she would be obliged to make good the warranty of her father, it should rebut or preclude the plaintiff from recovering ; in answer to which the latter contended that inasmuch as he could not derive a title to the prem- ises from the ancestor of his wife, he was a purchaser for valuable consideration, so dren, supposing himself to be tenant in tail, made a conveyance with warranty for the purpose of barring the entail accord- ing to a local statute, the remaindermen were not barred by the warranty contained in that deed, as it came directly within the provisions of the statute of Anne. 355 § 239.] OPERATION OP COVENANTS FOR TITLE [CHAP. XI. stance ; J in others, the whole common law doctrine of lineal and that so far as he was concerned it was a collateral warranty without assets, and therefore, by virtue of the statute of Anne, he was not rebutted. But the court said : ' ' This is a case of lineal warranty with assets so far as the daughter, sole heir, and wife of the demandant is concerned. She at the time of her marriage was un- doubtedly liable, and her liability devolved upon the husband and wife. If he was to be considered a purchaser for the valua- ble consideration of marriage of all that came to the wife, it was cum onere. He and his wife became and were seised of the real estate in her right, and he took the personal estate absolutely, but subject to all the liability to respond to the war- ranty of the ancestor. If the demandant were to recover, the tenant would have an action to recover back the value, and the judgment and execution would be against the husband and the wife, and might be levied upon the body or estate of the hus- band. So that if the husband should recover in this action, he himself would be liable eventually to refund the value." And the same decision has very recently been made in New Hampshire. Russ v. Perry, 49 N. H. 547. In the subsequent case of Cole v. Ray- mond, 9 Gray, 217, Bates v. Norcross was approved, and the doctrine of rebut- ter applied to a case where it had been held that there was no liability on the covenant of the ancestor by reason of the remedy being barred by the statute of limitations. "While," it was said, "the usual incidents to the conduct of a personal action will be applied, yet this will not af- fect the covenant real in its broader appli- cation." See this case referred to infra. In the recent case of Russ v. Alpaugh, 118 Mass. 369, where the subject was elaborately discussed, it was held that if the doctrine of rebutter by collateral war- ranty is part of the law of Massachusetts, it is only as restricted by the statute of Anne. "The statute," said Gray, C. J., deliver- ing the opinion, "was passed many years before our Revolution, and is declared in its title to be for the amendment of the law of England and the better advancement 356 of justice. Several other provisions of it have certainly been adopted in Massachu- setts. . . . We are of opinion that in the absence of any evidence to the contrary, section 21, being a most just and equi- table amendment of the severe rule of the common law, . . . must, if that rule ever became part of our law, be deemed to have been also adopted here." 1 In Maryland, the twenty-first section of the statute of Anne is, according to the somewhat recent case of Crisfield v. Storr, 36 Md. 129, 146, in force, and therefore a covenant of warranty in a deed by which a life tenant undertook to convey the land in fee was held not to bar her son the remainderman, en ventre at the time of the conveyance, from recovering the land in ejectment after her death. " It was," said the court, " argued with much earnestness that [the plaintiff] was barred from recovering the land in question by the collateral warranty which descended upon him, and that the statute of 4 Anne, c. 16, is not in force in this State. That statute is found in Kilty's British Stat- utes, 246, among those which are in force in this State, and he says that the twenty- first section is proper to be incorporated as applicable to our circumstances, and as there is no other case to be found in which a col- lateral warranty has been enforced in our courts, we must presume that it has always been considered in force here, especially as it is peculiarly applicable to our circum- stances, and well adapted to the policy of our laws and system of government, which favor and facilitate the free disposition and transmission of real estate. . . . The war- ranty of [his mother, the tenant for life] is therefore void as against [the plaintiff] and cannot affect his right of recovery against the defendants in the action of ejectment, because at the time of the warranty the remainder had . . . vested in him, and [his mother] had then a life estate only iu the land." The statute of Anne was re-enacted in New York in 1788, but the Revised Stat- utes have abolished both lineal and col- lateral warranties, and all their incidents. 4 Kent's Comm. 469 ; infra, p. 358, n. 2. § 239.] BY WAY OF ESTOPPEL. [CHAP. XI. collateral warranty is deemed inapplicable to our system of juris- In Delaware (Rev. Stats. 1874, c. 83, p. 508, § 28), it is declared that "a war- ranty made by a tenant for life shall not by descending or coming to a person in re- mainder or reversion bar or affect his title, and a collateral warranty shall not in any case bar or affect a title not derived from the person making such warranty." This was modified from the Rev. Stat, of 1847. In North Carolina, the statute of Anne was re-enacted by the Revised Statutes of 1836, c. 43, § 8, and by the Code, 1883 (vol. i. c. 31, p. 533, § 1334), "All col- lateral warranties are abolished ; and all warranties made by any tenant for life of lands, tenements, or hereditaments, the same descending or coming to any person in reversion or remainder shall be void ; and all such warranties as aforesaid shall be deemed covenants only, and bind the covenantor in like manner as other obli- gations." Johnson v. Bradley, 9 Ired. 362 ; see Moore v. Parker, 12 id. 129. In Flynn v. Williams, 1 id. 509, it was held that where one to whom an estate had been devised with an executory devise over in case of his death without issue should sell the same with a covenant of general war- ranty, his heirs would be barred either with or without assets, and whether the warranty was lineal or collateral. In the subsequent case of Spruill v. Leary, 13 Ired. 225, a testator devised his estate to his four sons and their heirs, and at the death of any of them without issue his share was to go to the survivors. The sons made partition, and afterwards one of them conveyed his share to a purchaser with a covenant of general warranty, and afterwards died without issue ; and it was held, upon the authority of Flynn v. Wil- liams, that the collateral warranty which descended upon his brothers, who were his heirs, barred them. "It is an arti- ficial and hard rule," said Ruffin, C. J., "the practical operation of which at this day is to enable one man to sell another's land without compensation, directly or indirectly, which is not agreeable to the reason and justice of modern law. But it is nevertheless the law, because it was undoubtedly so anciently, and the legis- lature has not seen fit to alter it. For it is not within the statute of Anne . . . because William Jones was not simply ten- ant for life, nor entitled to the bare right to the inheritance, but had the fee simple in possession at the time he entered into the warranty. . . . He had an estate to him and his heirs in possession with an executory devise over in fee, and conse- quently his warranty is not one of those made void by the act, as the warranty of an ancestor who had no estate of inherit- ance in possession of the land." But from this opinion Pearson, J., dissented in an able opinion (13 Ired. 408), and showed that in Flynn v. Williams the estate had been devised to one brother, subject to a condition in favor of another brother who died first without issue, leaving the first taker his heir, whereby the latter had both the estate and the condition to which it was subject ; and in the more recent case of Myers v. Craig, 1 Busb. 169, Spruill v. Leary was distinctly overruled, and it was held that the taker of the first fee, under a conditional limitation or executory de- vise by which a fee is limited after a fee, could not by bargain and sale with war- ranty bar the taker of the second fee without assets descended. The peculiarity of the recent case of Southerland v. Stout, 68 N. C. 446 — which was ejectment by the grantee in fee simple with general war- ranty from a life tenant — lies in the fact that the defendant, who was the daughter of the life tenant deceased, though in pos- session of the land, set up no title to the remainder or reversion either in herself or her father, but relied on the outstanding title of her father's grantor, with whom she showed no privity of blood, contract, or estate. The court held that as she did not bring herself within any of the statu- tory exceptions to the rule of the common law, she was rebutted by her father's war- ranty, and accordingly, reversing the judgment of the court below, entered judgment for the plaintiff. The same rule was afterward applied in Bell v. Adams, 81 id. 118. In Alabama, "all warranties by any tenant for life are void, as against those 35T 240.] OPERATION OP COVENANTS FOR TITLE [CHAP. XI. prudence, 1 while in others, lineal and collateral warranty, with all their incidents, have been abolished by statute. 2 § 240. The practical difference between the heir being merely liable to respond in damages for the breach of his ancestor's cov- enant and to the extent of the assets received by him, and being barred by reason of that covenant from claiming the land itself which had been improperly conveyed, is immense. In the case, for example, of a conveyance with covenants for title by a tenant in remainder or reversion." (Code, 1876, p. 573, § 2192.) To the same effect is the statute of New Jersey (Revision of 1877, p. 166, § 75), with the additional provision that " a collateral warranty which shall be made of lands, tenements, or heredita- ments by an ancestor, who at the time of making it hath no estate of inheritance in possession therein, shall be inoperative and void against his heirs." (Id. § 76.) Den v. Robinson, 2 South. 707 ; Den v. Crawford, 3 Halst. 90. The statute of South Carolina is sub- stantially the same as that of New Jersey. (Gen. Stats, of S. C, 1882, part 2, tit. 1, c. 59, p. 532, § 1809.) For a reference to the Virginia statutes on this subject the student may consult Urquhart v. Clarke, 2 Band. 549 ; Nor- man v. Cunningham, 5 Gratt. 63. " When the deed of the alienor mentions that he and his heirs will warrant what purports to pass or assure, if anything descends from him, his heirs shall be barred for the value of what is so descended, or liable for such value." (Code of Va., 1873, tit. 33, p. 888, § 7. 1 "The statute of Anne," says Kent, "does not appear to have been generally or formally re-enacted in our American statute laws, because the law of lineal and collateral warranty never has been gen- erally adopted in our American jurispru- dence." (4 Comm. 469.) In the somewhat recent case of Pollock v. Speidel, 17 Ohio, 439, the case was, in the absence of all statutory enactment, rested on the broad and satisfactory ground that the modern covenants for title are personal covenants merely, giving a remedy against the grantor by a recovery in dam- ages, and hence that a tenant in tail could 358 not, by deed with covenant of warranty, bar the entail or deprive his issue of the right to the inheritance, whether assets did or did not come to them from his es- tate. 2 In New York, "lineal and collateral warranties, with all their incidents, are abolished ; but the heirs and devisees of every person who shall have made any covenant or agreement shall be answer- able upon such covenant or agreement, to the extent of the lands descended or de- vised to them, in the cases and in the manner prescribed by law. " ( Rev. Stats, of N.Y., 1882, vol. iii. part 2, c. 1, p. 2195, §141.) The same statute has been enacted in Dakota (Levisee's Rev. Codes, 1883, vol. ii. p. 883, § 633); Indiana (Rev. Stats., 1881, p. 582, § 2925) ; hence where, in Hartman v. Lee, 30 Ind. 281, a tenant by the curtesy sold with covenant of war- ranty, it was held that the children of the mother, though they had received by descent from their father assets of greater value, were not barred from claiming the land — that the remedy on the covenants must be prosecuted against the personal representative, according to the statute as to decedents' estates; Missouri (Rev. Stats., 1879, c. 69, p. 676, § 3944), Chauvin v. Wagner, 18 Mo. 553 ; Whittlesey v. Bro- hammer, 31 id. 98 ; Sauerw. Griffin, 67 id. 654 ; Barlow v. Delaney, 86 id. 583 ; Mon- tana (Rev. Stats., 1879, p. 444, § 226); and Nevada (Comp. Laws, 1873, vol. i. c. 26, p. 86, § 276). It has been held in Missouri that the same rides of construction are in all re- spects applicable to this statute as to that of Kentucky (supra, p. 352, n. 3); Miller v. Bledsoe, 61 Mo. 96. § 241.] BY WAY OP ESTOPPEL. [CHAP. XI. by the curtesy, apart from the old doctrine of warranty, the law casts the estate of the mother upon the heir, who, retaining that estate, is also, as heir of the father, bound out of his estate to pay damages to the covenantee. Yet by the introduction of a doctrine which as long ago as the time of Edward the First was found to work injustice even as applied to feudal tenures, 1 and which is wholly inapplicable to the modern system of law, the heir is practically forced to confirm his father's unauthorized sale, is debarred from claiming the estate inherited from his mother, and must content himself by retaining the assets of his father's estate — in other words, he is forced to sell his mother's estate for the price which his father chose to take for it, and to accept and retain the latter as a recompense for the loss of the former. Unless where the effect of warranty was restrained by statute, its benefit inured to him who had received it, both as a means of redress and as a defence against the warrantor and his heirs, and this was no doubt originally founded upon the desire to prevent the circuity of action which would arise if the warrantor or his heirs were allowed to regain possession of the land ; as they would immediately be obliged, by means of a warrantia ehartce, to restore its value to the party from whom it had thus been taken. 2 § 241. But while such was the operation of a warranty by means of rebutter, the doctrine of estoppel was in its principle far different, 3 and while the former was dependent upon the pres- ence of a warranty, such was not the case with the latter, which had a wider scope, and might be caused either by matter of record, by matter of deed, or by matter in pais, and was, we are told, called an estoppel or conclusion, " because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth." 4 " An estoppel by deed," says Mr. Bigelow 1 See supra, 4 et seq. is most carefully confined to separate tri- 2 The practical result of engrafting, as bunals. has been done by a large class of American 3 Though as regards the effect just re- decisions, a supposed part of the doctrine ferred to there was a similarity between of warranty upon the system of modern them, a rebutter being in this respect " a conveyancing introduced by the statute of kind of estoppel." Co. Litt. 352 b. Uses has led, as will be hereafter seen, to 4 Co. Litt. 352 a. "The reasons why their unconscious administration of equi- estoppels are allowed," says Mr. Butler, table principles through the medium of in his note to this passage, "seem to be common law forms, and this even in States these : No man ought to allege anything where the administration of law and equity but the truth for his defence, and what he 359 § 243.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. with greater precision, " may be defined in a strict sense to be a right based upon a preclusion against the competent parties to a valid sealed instrument and their privies to deny its force and effect by any evidence of inferior solemnity." 1 § 242. This was the ordinary and personal effect of an estoppel by deed. But it had also a much higher operation, which was in certain and exceptional cases actually to transfer and pass an estate ; so that if a man conveyed to another land to which he had no title, any after-acquired title would inure to the latter by direct operation of law, and become vested in him in the same manner as if it had originally passed to him by the assurance. § 243. Now it must be carefully observed that by the common law there were two classes of cases in which an estate thus actu- ally passed by estoppel, and two only. The first was where the mode of assurance was a feoffment, a fine, or a common recovery. Such was their solemnity and high character that they always passed an actual estate, by right or by wrong, and as against the feoffor or conusor and his heirs, not only divested them of what has alleged once is to be presumed true, aud therefore he ought not to contradict it. Secondly, as the law cannot be known till the facts are ascertained, so neither can the truth of them be found out by evi- dence ; and therefore it is reasonable that some evidence should be allowed of so high and conclusive a nature as to admit of no contradictory proof." An illustration is found in Temple v. Partridge, 42 Me. 56. There, the grantee of land, having him- self conveyed it with a covenant of war- ranty to a third person, was sued by his grantor for damages for obtaining title by fraudulent representations as to the value of the land. The defendant offered to prove that there was an incumbrance which diminished its value ; but the court excluded the evidence, on the ground that it would have contradicted his covenant to his own grantee. "The defendant is not permitted to prove those solemn decla- rations made by himself to be false." Illustrations may also be found in cases where a grantor who conveys with a cov- enant of warranty afterward acquires, with the warranty of his grantee, the title so conveyed, and when seeking to recover on the covenant of the grantee for a breach 360 existing before his own covenant, is held to be estopped by the latter. Such a case is Fields v. Willingham, 49 Ga. 344. A sin- gular application of the principle is found in Scoffins v. Grandstaff, 12 Kans. 467. Scofhns, claiming title to land by a deed which was in fact void, executed a general warranty deed with covenants for seisin, against incumbrances, and for quiet enjoy- ment to Adams "his heirs and assigns." Adams took possession and executed a quitclaim deed to Purdon, giving posses- sion with the deed. Grandstaff was, at the time the suit was brought, in pos- session under Purdon's grantee. After Adams quitclaimed to Purdon, Scoffins acquired the legal title, which inured to Adams, who thereupon quitclaimed to Scof- fins, who then brought ejectment against Grandstaff. But the court held that al- though Adams might have maintained the action against Grandstaff, Scoffins was estopped by his covenant for quiet enjoy- ment ; "and it follows, therefore," said Valentine, J., delivering the opinion, "that the after-acquired title of Scoffins inures by way of equitable estoppel to the benefit of the said defendant." i Bigelow on Estoppel (4th ed.), 322. § 243.] BY WAY OF ESTOPPEL. [CHAP. XI. they then had, but of every estate which they might thereafter by possibility acquire, 1 and this doctrine has been applied in modern times. 2 The second was where the assurance was by lease, under which, it will be remembered, estates could take effect in futuro ; and the estoppel seems to have been put upon the ground of such having been the contract or agreement between the parties — the same contract which on the part of the lessor implied a covenant for quiet enjoyment from the word demise, and on the part of the lessee implied a covenant for payment of the rent from the words yielding and paying? l Touch. 204-210 ; Co. Litt. 9 a, 49 a ; Plowden, 423. This is thus clearly put in Williams on Real Property : "The for- mal delivery of the seisin or feudal pos- session which always took place in a feoffment, rendered it, till recently, an as- surance of great power ; so that if a person should have made a feoffment to another of an estate in fee simple, or of any other estate not warranted by his own interest in the lands, such a feoffment would have operated by wrong, as it is said, and would have conferred on the feoffee the whole estate limited by the feoffment, along with the seisin actually delivered. Thus if a tenant for his own life should have made a feoffment of the lands for an estate in fee simple, the feoffee would not merely have acquired an estate for the life of the feoffor, but would have become seised of an estate in fee simple by wrong ; accord- ingly, such feoffment by a tenant for life was regarded as a cause of forfeiture to the person entitled in reversion ; such a feoff- ment being in fact a conveyance of his reversion without his consent to another person." 6th Am. ed. 145. And as to a common recovery, this has been thus plainly stated by Mr. Bigelow : " The effect of a common recovery was to pass to the recoveror an estate in fee simple absolute, and thereby to bar not only the estate of the tenant in tail who suffered it, but all remainders and reversions expec- tant thereon and all executory limitations and conditions to which the estate tail had been subject. But it was necessary in ev- ery case of a recovery, following the rules which governed real actions, that the per- son against whom the action was brought should be actually seised of the freehold, otherwise the recovery was void. The same result must then have followed as in the case of a feoffment. If the ten- ant were a disseisor, as in the case of the presumptive heir disseising the ancestor in tail, he had a freehold estate ; and this the demandant recovered. And when the title descended, it passed of necessity to the recoveror ; for the tenant could not enter upon him contrary to his conveyance so as to enfeoff another, or to suffer a fine or another recovery. And an attempt to alien the interest by bargain and sale, grant or release, would be futile, for the same reason that prevailed where a feoff- ment had been made. Concerning this method of assurance also we fail to find any the slightest evidence that the ' tran- scendent effect of estoppel ' was anything else than the operation of the assurance itself in its very nature." Estoppel (4th ed.), 410. 2 Doe d. Christmas v. Oliver, 5 Man. & Ryl. 202; s. 0. 10 Barn. & Cress. 181 ; Helps v. Hereford, 2 Barn. & Aid. 242; Doe d. Thomas v. Jones, 1 Cromp. & Jerv. 528. See the examination of Messrs. Humphries, Coote, and others, before the Real Property Commissioners, 1 Real Prop. Report. 3 Bac. Abr. tit. Leases, 296, 441 ; Raw- lyns' case, 4 Rep. 53 ; Weale v. Lower, Pollex. 60 ; Smith v. Low, 1 Atkyns, 490 ; Trevivan v. Lawrence, 1 Salk. 276 ; Webb v. Austin, 7 Man. & Grang. 701 ; Mc- Kenzie v. City of- Lexington, 4 Dana, (Ky. ) 129. The doctrine of these cases naturally arises from the peculiarity of the relation between landlord and tenant, to 361 § 244.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. § 244. These modes of assurance were the only ones by which an after-acquired title was actually passed by direct operation of law under the doctrine of estoppel. Thus a grant or a release had not this effect. They only operated upon the estate which the grantor or releasor actually had, " and therefore if a man grant a rent-charge out of the manor of Dale, and in truth he hath nothing in that manor, and after he purchases the manor, yet he shall hold it discharged," 1 and this applied equally to a release. 2 which also other branches of the law of estoppel apply. The estoppel in pais which prevents the tenant from denying the landlord's title depends upon the ten- ant's obligation, express or implied, that he will at some time or in some event surrender the possession. The distinc- tion between the relation of landlord and tenant and that of vendor and purchaser is clearly recognized in the cases cited supra, p. 190. In Williams on Real Property the law on this subject is thus noticed : "The cir- cumstance that a lease for years was an- ciently nothing more than a mere contract explains a curious point of law relating to the creation of leases for years which does not hold with respect to the creation of any greater interest in land. If a man should by indenture lease lands in which he has no legal interest, for a term of years, both lessor and lessee will be estopped during the term, or forbidden to deny the validity of the lease. This might have been ex- pected. But the law goes further, and holds that if the lessor should at any time during the lease acquire the lands he has so let, the lease, which before operated only by estoppel, shall now take effect out of the newly acquired estate of the lessor, and shall become for all purposes a regular estate for a term of years. If, however, the lessor has at the time of mak- ing the lease any interest in the land he lets, such interest only will pass, and the lease will have no further effect by way of estoppel, though the interest purported to be granted be really greater than the lessor had at the time power to grant." 6th Am. ed., 395. 1 Perkins, tit. Grant, § 65 ; Wivel's case, Hob. 45 ; Touch. 240; Lampet's case, 10 Rep. 48. 362 2 Brooke's Abr. tit. Estoppel, pi. 146 ; Doe d. Lumley v. Scarborough, Ad. & Ell. 2, where it was conceded in the ar- gument. The well-considered judgment in Right d. Jefferys v. Bucknell, 2 Barn. & Adolph. 278, leaves no doubt as to this, did any exist. In that case, Jarvis the elder, having contracted to purchase cer- tain premises, was let into possession by order of the Court of Chancery, and after- wards, without having received a convey- ance, devised them to his son, Jarvis the younger, who entered and mortgaged them by indentures of lease and release to the lessors of the plaintiff, reciting that he was legally or equitably entitled thereto, and covenanting that he was legally or equitably rightfully, absolutely, and solely seised, etc. Some years after, Jarvis the younger became seised of the legal estate, which he afterwards conveyed by mort- gage for a valuable consideration to Buck- nell, the defendant, who had no notice of the prior mortgage and to whom all the title-deeds were delivered, and upon eject- ment being brought by the first mortgagee against the second, it was held that at law the plaintiff was not entitled to re- cover. The question on which the court took time to consider, said Lord Ten- terden, who delivered the opinion, was whether the defendant, claiming under the mortgagor, Jarvis the younger, could set up as a defence against the lessors of the plaintiff the legal estate acquired by him since their mortgage. There was no doubt, he said, that a fine might operate as an estoppel. Help v. Hereford, 2 B. & Aid. 242, and Doe v. Oliver, 10 B. & C. 181, were instances, but this was not the case of a fine. So there might be an estoppel by indenture or deed poll ; Littleton, § 693 ; Co. Litt. 252 a ; if the recital 245.] BY WAY OF ESTOPPEL. [CHAP. XI. And as the conveyances in use at the present day — which take effect by virtue of the statute of Uses, and which as distinguished from feoffments, fines, and common recoveries were called " in- nocent conveyances," viz. deeds of bargain and sale, lease and release, etc. — pass no more than the actual estate of the party, they have of course no greater effect by way of estoppel than the common law grant or release. 1 § 245. Where, however, it has distinctly appeared in such con- veyance, either by a recital, an admission, a covenant, or other- wise, that the parties actually intended to convey and receive, reciprocally, a certain estate, they have obviously been held to be were of a particular fact ; Salter v. Kid- ley, Show. 59 ; but here there was no ' ' certain precise averment in the deed of release of any seisin in Jarvis the younger, but a recital only that he was legally or equitably entitled." Such a recital could not operate as an estoppel. Nor did the release by mere force of the words "grant, bargain, sell, alien, remise, release," etc. amount to an estoppel, for Littleton lays it down, § 446, that "no right passeth by a release but the right which the releasor hath at the time of the release made." To the same effect were Wivel's case, Hob. 45, and Perk. § 65 ; Y. B. 49 Edw. III. 14, 15 ; 45 Ass. 5 ; 46 Ass. 6 ; Brooke's Abr. tit. Estoppel, pi. 146 ; 10 Vin. Abr. tit. Estoppel, M. The common rule that a mortgagor cannot dispute the title of his mortgagee was inapplicable, for the defendant Bucknell claimed, as the purchaser for a valuable consideration with- out notice, a legal interest which was not in Jarvis at the time of his mortgage to the lessors of the plaintiff, and Jarvis had an equitable interest which passed to them and was not questioned nor sought to be disturbed by the defence which Bucknell set up : "This case much resembles that of Goodtitle v. Morgan, 1 Term, 755, where a second mortgagee, without notice, who got in the legal title by taking an assign- ment from a trustee and the mortgagor of an outstanding term assigned to attend the inheritance, was held entitled to a legal preference against the first mort- gagee. There, as here, it might have been said that he was bound by the same con- clusion as the mortgagor, and should not question the right of the prior mortgagee. But the legal title prevailed there, and so we think it ought here." The student will observe that the argu- ment in Right v. Bucknell was based solely on the rights of the parties as pre- sented in a court of law, and that it is expressly said that the equitable interest which passed to the lessors of the plaintiff was " not questioned nor sought to be dis- turbed by the defence which Bucknell set up." The case is, therefore, distinguish- able from that class in which, in equity, the acquisition of a subsequent estate will be held to operate in favor of a prior mortgagee or purchaser, as an ex- ecutory agreement to convey, whenever the intention of the parties is apparent, and sustained by a sufficient consideration. Seabourne v. Powell, 2 Vern. 11 ; supra, p. 133, n. 3 ; Lamar v. Simpson, 1 Rich. Eq. (S. C.) 71 ; Wright v. Shumway, 1 Biss. (Ky. ) 23 ; and see infra. Doe v. Pott, 2 Douglas, 720, decided by Lord Mansfield in 1781, was a case where a lord of a manor, having mortgaged the manor, afterwards purchased copyhold lands held of this manor and took sur- renders of them ; and it was held that by the mortgage of the "manor" all its consequences and incidents passed ; that the manor being mortgaged in fee, the mortgagor could not afterwards sever the copyholds, because that would have dimin- ished the security, " for the mortgagee had a right to the services, quitrents, escheats, forfeitures, and other casualties." 1 Kennedy v. Skeer, 3 Watts, (Pa.) 98 ; Clark v. Baker, 14 Cal. 627. 363 § 247.]' OPERATION OF COVENANTS FOR TITLE [CHAP. XI. personally estopped from denying the operation of the deed ac- cording to this intent. 1 § 246. There was then an ordinary and an extraordinary effect attached to an estoppel. The one was personal in its character, like the rebutter in a warranty, and estopped the grantor and his heirs from doing or alleging anything contrary to the tenor and effect of his sealed instrument. This effect, however, was purely personal as against him or them ; the remedy being some- times enforced in a court of law and for the avoiding of circuity of action by reason of breach of covenant, and more frequently in equity, by further assuring to the grantee the estate which had thus been intended to be conveyed. But it never operated to pass an estate by direct operation of law. The other — the extraordinary — effect possessed the high function of actually transferring every estate, present or future, vested or contingent, to the feoffee, conusee, or lessee, according as the mode of assur- ance employed was a feoffment, a recovery, a fine, or a lease, and this effect was peculiar to them alone, there being no au- thority 2 in any of the English books to show that it was produced by any other species of conveyance. 3 § 247. This sketch of some of the principal features of the doctrine of estoppel by deed has thus been made as introductory to an important class of cases which, on this side of the Atlantic, has given to some of the modern covenants for title, and especially to the covenant of warranty, the function just referred to, which is properly attributable only to the effect of an estoppel in its highest sense. The history of the law on this side of the Atlantic is this. It was decided in two early cases in New York that where one by deed of bargain and sale, or lease and release, conveyed land to 1 Goodtitle v. Bailey, Cowp. 597 ; Doe 172 ; Decker v. Caskey, 2 Green's Ch. v. Errington, 8 Scott, 210; Bowman v. (N. J.) 449; McBurney v. Cutler, 18 Taylor, 2 Ad. & El. 278 ; Carver v. Jack- Barb. (N. Y.) 208 ; Kinsman v. Loomis, son, 4 Pet. (S. C. U. S.) 86 ; Van-Bensse- 11 Ohio, 478 ; Williams v. Presbyterian laerv. Kearney, 11 How. (S. C. U. S.) 325 ; Society, 1 Ohio, 478 ; Bayley v. McCoy, French v. Spencer, 21 id. 240 ; Clark v. 8 Or. 259 ; Root v. Crock, 7 Pa. 380. Baker, 14 Cal. 627 ; Smith v. Pendell, 19 2 Except the case of Bensley v. Burden, Conn. 107 ; Fitzhugh v. Tyler, 9 B. Mon. 2 Sim. & Stu. 519, which has since been (Ky. ) 561; Fisher v. Hallock, 50 Mich, overruled. See infra. 463 ; Williams v. Claiborne, 1 Sm. & 8 See Doe v. Oliver, 2 Smith's Lead. Marsh. (Miss.) 365 ; Gibson v. Chouteau, Cas. The quotation from Littleton, § 446, 39 Mo. 536 ; Den v. Brewer, Coxe, (N. J.) will be presently referred to. 364 247.] BY WAY OF ESTOPPEL. [CHAP. XI. which he had no title, he was estopped by his deed from claiming any after-acquired estate in it. 1 It does not appear in the report of the cases whether the deeds did or did not contain covenants for title ; but the decisions were rested on the authority of fa- miliar cases decided upon fines and leases. 2 But this doctrine, which was unsupported by early authority, was soon after abandoned, and it was held by the same court, reversing the cases referred to, that where one conveyed land to which he had no title, by deed of bargain and sale containing no covenants for title, nor intention on the face of the deed that the grantee expected to become invested with a certain estate, a subsequently acquired title would not inure to the benefit of the grantee, even as against the grantor and his heirs. 3 This dccis- 1 Jackson v. Bull, 1 Johns. Cas. 81 ; Jackson v. Murray, 12 Johns. 201. 2 Jackson v. Bull was decided by Kent, J., on the authority of Ischam v. Morrice, Cro. Car. 110 ; Co. Litt. 45 a, 47 b, 352, a, b ; Kawlyns' case, 4 Eep. 53 a ; Piggot v. Earl of Salisbury, 2 Mod. 115 ; Trevivan v. Lawrence, 6 id. 258 ; s. c. 1 Salk. 276 ; Palmer v. Elkins, 2 Raym. 1551; and Nick v. Edwards, 3 P. Wins. 373 ; which cases indeed justify the conclusion arrived at by that learned judge that " if a man make a lease of land by indenture which is not his, or levy a fine of an estate not vested, and he afterwards purchases the land, he shall, notwithstanding, be bound by his deed, and not be permitted to aver he had nothing, and the stranger to whom he sells will equally be estopped." But the differ- ence between the modes of assurance here referred to and conveyances under the statute of Uses has already been noticed. Nelson, J., in speaking (in Pelletreau v. Jackson, 11 Wend. 119) of Jackson v. Bull and Jackson v. Murray, said, "It does not appear in either of them whether there was a covenant of warranty or not. ... If not, though the doctrine of them may be sound, I apprehend there would be difficulty in reconciling them with the rule in Littleton," etc. The rule thus referred to will be noticed infra. In Mississippi, by statute, " A deed of quitclaim and release shall be sufficient to pass all the estate or interest the grantor has in the land conveyed, and shall estop the grantor and his heirs from asserting a subsequently acquired adverse title to the lands conveyed." Code of Mississippi, 1880, § 1195. The statute is inapplicable to a title acquired by the grantor's wife after his conveyance. Carter v. Busta- mente, 59 Miss. 559. 3 Jackson v. Wright, 14 Johns. 193. The facts were these. Boise by deed-poll in 1794 granted, bargained, sold, and quit- claimed to the lessor of the plaintiff in fee ' ' all that military right or parcel of land granted to him as bounty lands for his ser- vices during the late war." The deed con- tained no covenants for title. In 1806, an act of the legislature was passed, author- izing letters patent to be granted to Boise " for the quantity of two hundred acres of land in the tract set apart for the use of the line of this State serving in the army of the United States," and the land was accordingly patented to him. The judge ruled that the deed from Boise to the lessor of the plaintiff, being prior in date to the patent, did not entitle him to re- cover, and a verdict having passed for the defendant, the case was submitted, on a motion for a new trial, without argument, when it was said, " The deed from Boise to McCrakin is a bargain and sale and quit- claim, and he had then no title to convey in the premises ; and no title not then in esse would pass unless there was a war- ranty in the deed, in which last case it would operate as an estoppel for avoiding circuity of action." 365 § 247.] OPERATION OP COVENANTS FOR TITLE [CHAP. XI. ion has been almost consistently followed, and a large class of cases, both in New York and throughout the United States, has established the conclusion that as a general rule, and apart from the doctrine of estoppel caused by recital, in order that an after- acquired estate should pass by estoppel, it is necessary that the deed should contain covenants of some sort or kind. And while it is true that an intention — shown by recital, averment, or other- wise, that a certain definite estate was intended to be conveyed — will generally be allowed the same effect as though it were a cov- enant, 1 yet it is considered that the presence of a covenant is perhaps the strongest evidence that such was the intention and the contract of the parties. But a mere release, or a deed of quit- claim, will not have the effect of estoppel. 2 1 In the well-considered case of Van Rensselaer v. Kearney, 11 How. (S. C. U. S.) 298, it is shown that "If the deed bears on its face evidence that the grantors intended to convey, and the grantee ex- pected to become invested with, an estate of a particular description or quality, and that the bargain had proceeded upon that footing, then, although it may not contain any covenants for title in the technical sense of the term, still the legal operation and effect of the instrument will be as binding upon the grantor and those claiming under him as if a formal covenant to that effect had been inserted ; at least so far as to estop them from ever afterward denying that he was seised of the particular estate at the time of the conveyance." In other words, it may have the same effect as a covenant, and possibly a greater one. See infra. 2 Tillotson v. Kennedy, 5 Ala. 413 ; Cadiz v. Majors, 33 Cal. 288 ; Quivey v. Baker, 37 id. 465 ; Dart v. Dart, 7 Conn. 256 ; Frink v. Darst, 14 111. 308 (over- ruling Frisby v. Ballance, 2 Gilm. (111.) 141); Bennett v. Waller, 23 111. 182; Avery v. Aikins, 74 Ind. 283 ; Locke v. White, 89 id. 492 ; Simpson v. Greeley, 8 Kans. 586 ; Bruce v. Lake, 9 id. 201 ; Scoffins v. Grandstaff, 12 id. 467; Bohon v. Bohon, 78 Ky. 408 ; Fox v. Widgery, 4 Greenl. (Me.) 218; Ham v. Ham, 14 Mc 351 ; Comstock v. Smith, 13 Pick. (Mass.) 116 ; Blanchard v. Brooks, 12 id. 47, 66 ; Taft v. Stevens, 3 Gray, (Mass.) 366 504 ; Weed Sewing Machine Co. v. Emer- son, 115 Mass. 554 ; Brown v. Phillips, 40 Mich. 264; Mitchell v. Woodson, 37 Miss. 578 (but see the statute of Mississippi, supra, p. 365, n. 2) ; Bogy v. Shoab, 13 Mo. 365 ; Valle v. Clemens, 18 id. 486 ; Gib- son v. Chouteau, 39 id. 536 ; Butcher v. Rogers, 60 id. 138 ; Kimmel v. Benna, 70 id. 52 ; Harden v. Cullins, 8 Nev. 49 ; Bell v. Twilight, 6 Fost. (N. H.) 401 ; Howe v. Harrington, 3 C. E. Green, (N. J.) 495 ; Smith v. De Russy, 29 K J. Eq. 407 ; Jackson v. Hubble, 1 Cow. (N. Y.) 613 ; Jackson v. Winslow, 9 id. 18 ; Jackson v. Bradford, 4 Wend. (N. Y.) 619; Pelle- treau v. Jackson, 11 id. 119 ; Jackson v. Waldron, 13 id. 178 ; Varick v. Edwards, 1 Hoffm. Ch. (N. Y.) 382; 11 Paige, (N. Y.) 290; Edwards v. Varick, 5 De- nio, (N. Y.) 665; (these last cases were, in fact, the same controversy which arose under the will of Medcef Eden ;) Sparrow v. Kingman, 1 Comst. (N. Y.) 247; Jack- son v. Littell, 56 N. Y. App. 108 ; Cramer v. Benton, 64 Barb. (N. Y.) 522; Kins- man v. Loomis, 11 Ohio, 475 ; Hart v. Gregg, 32 id. 502 ; Burston v. Jackson, 9 Or. 275 ; Doswell v. Buchanan, 3 Leigh, (Va.)365 ; Kentu. Watson, 22W.Va. 561. In cases of involuntary alienation, as where a creditor levies upon land of his debtor, the latter is not estopped to as- sert a subsequently acquired title. Free- man v. Thayer, 29 Me. 369 ; Bigelow on Estoppel (4th ed.), 388. In Illinois, the doctrine that a quit- § 248.] BY WAY OP ESTOPPEL. [CHAP. XI. § 248. Where, however, the deed does contain such recital or averment, and more especially where it contains certain of the covenants for title, it has been held by a large class of cases that as a general rule any after-acquired estate will inure, by virtue of the covenants, to the party claiming under the conveyance and his heirs and assigns, by direct operation of law, with the same effect to all intents and purposes as if such estate had originally passed by the deed. 1 And in many States, the doctrine has been made claim deed will not pass an after-acquired title not only is recognized as the common law of the State (Frink v. Darst, 14 111. 304), but is declared by statute ( Rev. Stats., 1883, ch. 30, § 10, p. 280), and the same restriction is put upon the effect of a mort- gage (id., § 11). The case of Welch v. But- ton, 79 111. 465, should not, therefore, be misunderstood. It was there held merely that the purchaser of land from the State has, after payment and before the issue of the patent, such a title as that by his quit- claim deed and the subsequent issue of the patent a legal title vested in the vendee. "The issuing of a patent to [the grantor] and his receipt of it was not the acquisi- tion by him of a new title. It was only in consummation of and the completion of the title which he had previously by his quitclaim deed conveyed." To the same effect is Fisher v. Hallock, 50 Mich. 463, and it is only part of the doctrine that the inception of the title by purchase and its consummation by patent are part of the same title, the patent relating back to the inception. French v. Spencer, 21 How. (S. C. U. S.) 228. McCarthy v. Mann, 19 Wall. (S. C. U. S.) 20, turned upon the effect given by the court to an act of Congress, reinstating the title of the grantee as of the date of his entry. 1 Kennedy v. McCartney, 4 Port. (Ala.) 141 ; Tillotson v. Kennedy, 5 Ala. 413 ; Bean v. Welsh, 17 id. 772 ; Blakeslee v. Mobile Life Ins. Co., 57 id. 205 ; Watkins v. Wassell, 15 Ark. 73 ; Trust & Loan Co. v. Rattan, 1 Duval, (Canada,) 564; Klumpke v. Baker, 68 Cal. 559 ; Hoyt v. Dimon, 5 Day, (Conn.) 479; Dudley v. Cadwell, 19 Conn. 226 ; Sherwood v. Bar- low, id. 476 ; Doe v. Dowdall, 3 Houst. (Del.) 369; O'Bannon v. Paremour, 24 Ga. 493 ; Rigg v. Cook, 4 Gilm. (111.) 348; Bennett v. Waller, 23 111. 183 ; Dewolf v. Hayden, 24 id. 525 ; Jones v. King, 25 id. 384 ; King v. Gilson, 32 id. 348 ; Goche- nour v. Mowry, 33 id. 333 ; Hitchcock v. Fortier, 65 id. 239 ; Pratt v. Pratt, 96 id. 184 ; Hoppin v. Hoppin, id. 265; Han- nah v. Collins, 94 Ind. 201; Thomas v. Stickle, 32 Io. 72; (in Scoffins v. Grand- staff, 12 Kans. 467, the after-acquired title was held to inure by way of equitable estoppel ;) Massie v. Sebastian, 4 Bibb, (Ky.) 436 ; Logan v. Moore, 7 Dana, (Ky.) 76 ; Logan v. Steele, 4 T. B. Mon. (Ky.) 433 ; Dickersonv. Talbot, 14B. Mon. (Ky.) 64; Lawry v. Williams, 13 Me. 281; Baxter v. Bradbury, 20 id. 260 ; Pike v. Galvin, 29 id. 183 (overruling, as to the operation of the particular covenant there employed, Fairbanks v. Williamson, 7 Greenl. (Me.) 96, and see Ham v. Ham, 14 Me. 355, where Fairbanks v. Williamson was vir- tually denied ; the dissenting opinion of Wells, J., in Pike v. Galvin, is in 30 id. 539) ; Williams v. Thurlow, 31 Me. 395 ; Read v. Fogg, 60 id. 479 ; Funk v. New- comer, 10 Md. 316 ; Somes v. Skinner, 3 Pick. (Mass.) 52 ; Blanchard v. Brooks, 12 id. 47 ; Comstock v. Smith, 13 id. 116 ; Trull v. Eastman, 3 Met. (Mass. ) 121 ; Wade v. Lindsey, 6 id. 413 ; Gibbs v. Thayer, 6 Cush. (Mass.) 30; Ruggles v. Barton, 13 Gray, (Mass. ) 506 ; Farnum v. Peterson, 111 Mass. 148; Leer. Clary, 38 Mich. 223; Hooper v. Henry, 31 Minn. 264 ; Wight- man v. Reynolds, 24 Miss. 675 ; Mitchell v. Woodson, 37 id. 578 ; Kimball v. Blais- dell, 5 N. H. 533 ; Wark v. Willard, 13 id. 389 ; Thorndike v. Norris, 4 Fost. (N. H.) 454 ; Jewell v. Porter, 11 id. 39 ; Kimball v. Schoff, 40 N. H. 190 ; Hayes v. Tabor, 41 id. 521 ; Gough v. Bell, 1 Zabr. (N. J.) 156; Moore v. Rake, 2 Dutch. (N. J.) 574; Brundred v. Walker, 367 § - 4 §-] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. the subject of statutory enactment, and the legislation is to a great extent both recent and on the increase. 1 1 Beasl. Ch. (N. J.) 140; Vreeland v. Blauvelt, 23 N. J. Eq. 483 ; Jackson v. Winslow, 9 Cow. (N. Y.) 18; Kellogg v. Wood, 4 Paige, (N. Y.) 578; Sparrow v. Kingman, 1 Corast. (N. Y.) 246; Rath- bun r. Rathbun, 6 Barb. S. C. (N. Y.) 107 ; Mickles v. Dillaye, 15 Hun, (N. Y.) 296 ; Bell v. Adams, 81 N. C. 118 ; Pat- terson v. Pease, 5 Ohio, 190 ; Scott v. Douglass, 7 id. 227 ; Barton v. Morris, 15 id. 408 ; Pollock v. Speidel, 27 id. 86 ; Broadwell v. Phillips, 30 id. 255 ; Hart v. Gregg, 32 id. 502 ; Taggart v. Risley, 3 Ore. 306 ; s. c. 4 id. 235 ; Wilson v. Mc- Ewan, 7 id. 87 ; Potter v. Potter, 1 R. I. 44 ; Bailey v. Hoppin, 12 id. 560 ; Davis v. Keller, 5 Rich. Eq. (S. C.) 434; Harvin v. Hodge, Dudl. (S. C.) 23; Reeder v. Craig, 3 McCord, 411 (it does not appear in the reports of these cases that there was a covenant of warranty, but it was so stated in Starke v. Harrison, 5 Rich. L. (S. C.) 7) ; Mingo v. Parker, 19 S. C. 9 ; Robert- son v. Gaines, 2 Humph. (Tenn. ) 383; Coal Creek Mining Co. v. Ross, 12 Lea, (Tenn.) 1 ; Ackerman v. Smiley, 37 Tex. 211 ; Harrison v. Boring, 44 id. 255 ; Middlebury College v. Cheney, 1 Verm. 349 ; Blake v. Tucker, 12 id. 44 ; Good- enough v. Fellows, 53 id. 102 ; Cross v. Martin, 46 id. 14 ; Burtners v. Keran, 24 Grat. (Va. ) 42 (where, however, it was held that the estoppel did not operate ac- tually to transfer the estate) ; Raines v. Walker, 77 Va. 92 ; Mann v. Young, 1 Wash. Terr. 454 ; Mitchell v. Petty, 2 W. Va. 470 ; Pierce v. Milwaukee R. R., 24 Wis. 553 ; Wiesner v. Zaun, 39 id. 188; Trust & Loan Co. v. Covert, 32 U. Can. Q. B. 222 ; Terrett v. Taylor, 9 Cranch, (S. C. IT. S.) 52; Mason v. Muncaster, 9 Wheat, (id.) 445; Irvine v. Irvine, 9 Wall, (id.) 617. In Harmer v. Morris, 1 McLean, (C. C. TJ. S.) 44, it does not appear whether there was a warranty or not, but it was held that the after-acquired estate passed. Mr. Bigelow, in speaking of this class of cases (Estoppel, 4th ed., 420), remarks : " Mr. Rawle . . . says that in most of the States it is held that the presence of a 368 covenant of general warranty in a convey- ance will not only estop the grantor and his heirs from setting up an after-acquired title, but will by force of the covenant have the effect of actually transferring the new estate in the same manner as if it had originally passed by the deed; and he cites a cloud of cases for the statement. It will be found, however, that few of these cases required any decision of this question, and that the statements of the courts are for the greater part mere generalities, having reference to the relation of grantor and grantee or their real privies." This is quite true, and might be said generally as to many other classes of cases, but whether or not material to the decision, they an- nounce and cling to a doctrine whose ap- plication in some of them was, to say the least, unfortunate (as will be seen infra). And with this, the learned author agrees. (Estoppel, p. 432.) As a rule, the cases themselves were correctly decided upon the facts, whatever objection may be taken to the doctrine on which they claim to rest. 1 Thus the statute of Kansas is as fol- lows : "Where a grantor, by the terms of his deed, undertakes to convey to the grantee an indefeasible estate in fee simple absolute, and shall not, at the time of such conveyance, have the legal title to the estate sought to be conveyed, but shall afterwards acquire it, the legal estate sub- sequently acquired by him shall imme- diately pass to the grantee ; and such con- veyance shall be as effective as though such legal estate had been in the grantor at the time of the conveyance." (Comp. Laws of Kans., 1879, c. 22, p. 211, § 5.) See Scoffins v. Grandstaff, 12 Kans. 467. In nearly the same words are the statutes of Arizona (Comp. Laws, 1877, c. 42, p. 384, § 33) ; Missouri (Rev. Stats., 1879, c. 69, p. 675, § 3940), in which State it is held that the statute does not apply to leasehold interests, Geyer v. Girard, 22 Mo. 159 ; Montana (Rev. Stats., 1879, p. 443, § 209) ; and Nevada (Comp. Laws, 1873, c. 26, p. 84, § 261). The statutes of Illinois (Rev. Stats., § 249.] BY WAY OF ESTOPPEL. [CHAP. XL § 249. But while, apart from legislation, the general doctrine referred to is established by such a cloud of authorities, they 1883, c. 30, p. 279, § 7; as to which see Hoppin v. Hoppin, 96 111. 265 ; Dugan v. Follett, 100 id. 581 ; Tyrrell v. Ward, 102 id. 29) and Colorado (Gen. Stats., 1883, c. 18, p. 171, § 201) do not materially differ from that of Kansas except in providing that the subsequently acquired legal estate ' ' shall be taken and held to be in trust, and for the use of the grantee or vendee, and the conveyance aforesaid shall be held and taken and shall be as valid as if the grantor or vendor had the legal estate or interest at the time of said sale or convey- ance." The difference is apparently of no practical importance. The statute of Arkansas is somewhat differently expressed : "If any person shall convey any real estate by deed, purporting to convey the same in fee simple absolute, or any less estate, and shall not at the time of such conveyance have the legal estate in such lands, but shall afterward acquire the same, the legal or equitable estate after acquired shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal or equitable estate had been in the grantor at the time of the conveyance." (Mansf. Dig. Stats, of Ark., 1884, c. 27, p. 276, § 642.) See Cocke v. Thorn, 5 Ark. 693 ; Watkins v. Wassel, 15 id. 73 ; Holland v. Rogers, 33 id. 251. This stat- ute applies to corporations as well as indi- viduals ; Jones v. Green, 41 Ark. 363 ; and to voluntary sales only ; Horsley v. Hilburn, 44 Ark. 458. The statutes of California (Hittel's Codes and Stats., 1876, vol. i. p. 705, § 6106) and Dakota (Levisee's Rev. Codes, 1883, vol. ii. p. 883, pi. 4) are as follows: " Where a person purports by proper in- strument to grant real property in fee sim- ple, and subsequently acquires any title or claim of title thereto, the same passes by operation of law to the grantee, or his successors." In Iowa, " Where a deed purports to convey a greater interest than the grantor was at the time possessed of, any after- acquired interest of such grantor, to the extent of that which the deed purports 24 to convey, inures to the benefit of the grantee." (Rev. Code of Iowa, 1884, c. 5, p. 524, § 1931.) See Morgan v. Graham, 35 Io. 213 ; Rogers v. Hussey, 36 id. 664 ; Heaton v. Fryberger, 38 id. 185. This provision extends to mortgages, where there are no intervening equities. Rice v. Kelso, 57 Iowa, 115. The same statute has been enacted in Nebraska, with this qualification, viz. : ' ' Provided however that such after- acquired interest shall not inure to the benefit of the origi- nal grantor, or his heirs or assigns, if the deed conveying said real estate was either a quitclaim or special warranty, and the original grantor in any case shall not be stopped from acquiring said premises at judicial or tax sale, upon execution against the grantee or his assigns, or for taxes becoming due after date of his conveyance." (Comp. Stats, of Neb., 18S5, c. 73, p. 482, § 51.) In Georgia, "The maker of a deed can- not subsequently claim adversely to his deed under a title acquired since the mak- ing thereof. He is estopped from denying his right to sell and convey." (Rev. Code of Ga., 1882, c. 8, p. 670, § 2699.) See Parker v. Jones, 57 Ga. 204. The statute of Mississippi has already been noticed, supra, p. 365, n. 2. The Appendix to the Code of Washing- ton Territory (1881) contains at page 25 the following statute : " Whenever any person or persons having sold and con- veyed by deed any lands in this Territory, and who at the time of such conveyance had no title to such land, and any person or persons who may hereafter sell and con- vey by deed any lands in this Territory, and who shall not at the time of such sale and conveyance have the title to such land, shall acquire a title to such lands so sold and conveyed, such title shall inure to the benefit of the purchasers or conveyee or conveyees of such lands to whom such deed was executed and de- livered, and to his and their heirs and as- signs forever. And the title to such land so sold and conveyed shall pass to and vest in the conveyee or eonveyees of such 369 § 250.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. are not, at least so far as the covenants for title are concerned altogether consistent, first, as to the grounds upon which the doctrine is based, nor secondly, as to what covenants will or will not produce such an effect. And first, as to the grounds upon which the doctrine is based. § 250. As a general rule, it is said to rest on the ground of avoiding circuity of action, 1 and hence where, for any reason, no right of action ever existed on the covenant, or the same has been released, extinguished, or otherwise has ceased, there will, according to some authorities, be no estoppel, and the after- acquired estate will not pass. 2 Thus in somewhat recent cases in Maine, in which State it is now held that no action will lie upon what is called the cove- nant of non-claim, (that is to say, a covenant that neither the grantor nor any other person shall thereafter claim any right or title to the premises, 3 ) it has been decided that where that is the only covenant in the deed, inasmuch as there was never any right of action upon it, there will be no estoppel, 4 and the law had previously been held the same way in New York. 5 So where the deed, although containing general covenants for title, does not on its face purport to convey an indefeasible estate, lands and to his or their heirs and assigns, that the rule thus introduced would seem and shall thereafter run with such land." to be inflexible, and to override any equi- The effect of the apparent omission from ties that might otherwise avail the second the Code of 1881 of this statute, which purchaser. As to this, see infra. was passed in 1871, may have been to 1 " Most of the early cases base the rule repeal it, though this seems at least doubt- on the ground of preventing circuity of ful. See note by Public Printer, Appen- action, and this was the principal ground dix, p. 2. In Mann v. Young, 1 Wash, where the grantor or his heirs were the Terr. (N. S.) 454, the cause of action arose claimants." North v. Henneberry, 44 prior to the passage of this statute, which Wis. 313. the court held was prospective only. 2 Smiley v. Fries, 104 111. 416. In the fourth edition of this treatise 3 See supra, § 22. (p. 391, n. 2) were given the statutes in 4 Pike v. Galvin, 29 Me. 185, supra, force at that time, and the decisions appli- p. 367, n. 1 ; Partridge v. Patten, 33 id. cable to them. It will be observed from 483; Loomis v. Pingree, 43 id. 314 ; Har- the above reference to the present legisla- riman v. Gray, 49 id. 538. The rule was tion on the subject, first, that in many reasserted in Read v. Whittemore, 60 States the provisions of former statutes Me. 481, but as Mr. Bigelow says, " the have been re-enacted ; secondly, that in propriety of such a construction has been none in which there was legislation has it very properly doubted." Bigelow on Es- been repealed ; and thirdly, that the num- toppel (4th ed.), 397. See these cases her of States in which such legislation more particularly referred to infra. exists has been more than doubled since 5 Jackson v. Bradford, 4 Wend. (N. Y.) the last edition of this treatise. 622. Of such legislation it can only be said 370 § 250.] BY WAY OF ESTOPPEL. [CHAP. XI. but only " the right, title, and interest " of the grantor ; there, in cases where those covenants are held not to assure an absolute title, but to be limited and restrained by the estate conveyed, the doctrine of estoppel has been considered not to apply ; in other words, although the covenants are as a general rule deemed to be invested with the function of estoppel in passing an after- acquired estate by mere operation of law, yet they will lack that effect when it appears that the grantor intended to convey no greater estate than he was really possessed of. Thus where, in a case in Massachusetts, a devisee, being entitled to a vested re- mainder in one moiety and a contingent remainder in another moiety of certain real estate held in common with other devisees, conveyed " all his right, title, and interest in and to the undivided real estate devised," with unlimited covenants of warranty and for quiet enjoyment, it was held that the deed conveyed only his vested interest, and the warranty being only coextensive with the grant, he was not thereby estopped to claim the con- tingent interest when by the happening of the contingency it became vested, 1 and this doctrine has been repeatedly and re- cently affirmed not only in that State but in others, 2 and has 1 Blanchardi>. Brooks, 12 Pick. (Mass.) 47, 67. " The grant in the deed," said Shaw, C. J., in delivering the opinion, "is of all his right, title, and interest in the land, and not of the land itself, or any particular estate in the land. The war- ranty is of the premises, that is, of the estate granted, which was all his right, title, and interest. It was equivalent to a warranty of the estate he then held or was seised of, and must be confined to estate vested. A conveyance of all the right, title, and interest in land is certainly suffi- cient to pass the land itself if the party conveying has an estate therein at the time of the conveyance, but it passes no estate which is not then possessed by the party. Brown v. Jackson, 3 "Wheat. 452. The grant in legal effect operated only to pass the vested interest and not the con- tingent interest, and the warranty, being coextensive with the grant, did not ex" tend to the contingent interest, and, of course, did not operate upon it by way of estoppel." 2 Holbrook v. Debo, 99 HI. 372 ; Shu- maker v. Johnson, 35 Ind. 33 ; Locke v. White, 89 id. 492 ; Derby v. Jones, 27 Me. 361 ; Coe v. Persons unknown, 43 id. 436 ; Wight v. Shaw, 5 Cush. (Mass.) 56 ; Miller v. Ewing, 6 id. 34 ; Hoxie v. Fin- ney, 16 Gray, (Mass.) 332; Sanford v. Sanford, 135 Mass. 314; Bogn v. Shoab, 13 Mo. 365 ; Valle v. Clemens, 18 id. 486 ; Hall v. Chaffee, 14 N. H. 215 ; Adams v. Ross, 1 Vroom, (1ST. J.) 509 (reversing s. c. 4 Dutch. 160) ; White v. Brocaw, 14 Ohio St. 339 ; Wynn v. Harman, 5 Grat. (Va.) 162 ; Lewis v. Baird, 3 McLean, (C. C. TJ. S.) 78. "The deed only pur- ports to pass all the right, title, and estate which the grantor possessed in the land, and does not operate upon interests sub- sequently acquired. If the plaintiff at the time possessed any estate in the prem- ises, whether in fee, or for life, or for years, the same vested by the conveyance, and the effect of the covenant is only to estop him and parties under him from asserting any claim to such estate. In other words, the terms of the deed denote that the grantor only intended to transfer the es- 371 250.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. also been approved very lately by the Supreme Court of the United States. 1 So it has been held that where the covenant for seisin is satis- fied by the transfer to the purchaser of an actual though a tor- tious seisin (as is the case in several of the New England States), 2 no estoppel will be created by that covenant. 3 So, too, it is con- sidered that there is no estoppel when the covenants have been extinguished. 4 So obviously, where they are limited to the acts of the grantor, and, by reason of the defect of title not being of his own creation and therefore not coming within the scope of the covenant, the purchaser cannot maintain an action upon them, there will be no estoppel and the after-acquired estate will not pass to the latter. 5 And the same doctrine has obviously been tate which he at the time possessed, and the covenant is restrained by the estate conveyed." Gee v. Moore, 14 Cal. 474 ; Kimball v. Semple, 25 id. 452 ; Hope v. Stone, 10 Minn. 149. In Brigham v. Smith, 4 Gray, (Mass.) 297, it was ob- viously held that the covenant of war- ranty in a conveyance did not estop the grantor from claiming a way of necessity over the land conveyed. And where one conveyed land by warranty deed, except- ing twenty acres not described, it was obviously held that as the covenant of warranty did not extend to the undivided twenty acres, the grantor was not estopped to assert an after-acquired title thereto. Gill v. Grand Tower Mining Co., 92 111. 249. i Hanrick v. Patrick, 119 U. S. 156. 2 See supra, § 42 el seq. 3 Fox v. Widgery, 4 Greenl. (Me.) 218 ; Allen v. Sayward, 5 id. 231 ; Doane v. Willcutt, 5 Gray, (Mass.) 333. * Goodel v. Bennett, 22 Wis. 565. In this case it seems that the defendant, in 1851, conveyed the premises in question with covenants for seisin, of warranty, and against incumbrances, and by virtue of several mesne conveyances they became vested in Chicks, who, by the treaty of February 5, 1856 (11 IT. S. Stat. 664), ceded them to the United States. In 1860 a patent was issued to Davids, who con- veyed to the defendant. Chicks having died, his administrator in 1862 sold the property to the plaintiff, and the court 372 clearly held that ejectment could not be maintained. ' ' The covenants ran with the land to the United States when it was ceded by Chicks under the treaty, and have thence passed by convej'ance back to the defendant, and are thus extin- guished. The plaintiff, by having taken a conveyance from an intermediate grantee after such grantee had parted with his title, is in no condition to insist upon an estoppel or that the subsequently ac- quired title of the defendant inures to his benefit." 6 Thus in Comstock v. Smith, 13 Pick. (Mass. ) 116, the tenant of one "Waters pur- chased the premises by parol, and paid part of the purchase money. He was af- terwards disseised by the demandants, who, pretending that they had a lawful title to the premises, subsequently sold them to the tenant. At the expiration of a year, the latter, finding that the demandants had no title, reconveyed to them all his " right, claim, and demand in and to the prem- ises," and covenanted to warrant and de- fend them " against the lawful claims and demands of all persons claiming by or un- der him," and the demandant thereupon refunded the consideration money. The tenant subsequently, in pursuance of the parol contract, received a conveyance from Waters, who was the true owner, when the demandants brought a writ of entry against him, on the ground that the after-acquired title under the deed from Waters inured, by virtue of the covenant of warranty, to § 250.] BY WAY OF ESTOPPEL. [('HAP. XI. applied where the covenants are restrained to certain particular their benefit. But Wilde, J., who deliv- ered the opinion, said : " The tenant's covenant is a restricted covenant, and is coextensive with the grant or release. He agrees to warrant the title granted or re- leased, and nothing more. That title only he undertook to assert and defend. To extend the covenant further would be to reject or do away the restrictive words of it, and to enlarge it to a general covenant of warranty, against the manifest inten- tion of both parties. The tenant, in cove- nanting to warrant and defend the granted or released premises, must be understood to refer to the estate or title sold or re- leased, and not to the land, because he did not certainly intend to warrant any estate or title not intended to be conveyed. Now if Waters, after the tenant's quit- claim deed, had evicted the demandants, this would have been no breach of the tenant's covenant. Or if the tenant now held under Waters without having ob- tained the fee from him, he might pray Waters in aid, and thus defeud himself against the title of the demandants, the title of Waters being, as the plea avers, the elder and better title, and this also would be no breach of the tenant's covenant. He did not undertake to convey to demand- ants an indefeasible estate, but only his own title ; nor did he agree to warrant and defend it against all claims and demands, but only against those derived from him- self, by which he must be understood to refer to existing claims or incumbrances, and not to any title which he might after- wards acquire by purchase or otherwise from a stranger. Ellis v. Welch, 6 Mass. 250. There is, therefore, no reason to be assigned why the tenant should not pur- chase the title of Waters. The demand- ants cannot thereby be prejudiced, nor ought they therefrom to derive any ben- efit. " It was then contended by the demand- ants' counsel, that admitting the tenant is not estopped by his covenant of war- ranty, he is nevertheless estopped by his conveyance to deny that he had any title in the land at the time of the conveyance. This also is a well-established principle of common law. Co. Litt. 45, 47 ; Jackson V. Murray, 12 Johns. 201 ; Jackson v. Bull, 1 Johns. Cas. 91 ; Ischam v. Morrice, Cro. Car. 110. But the tenant, in his plea, does not deny that he had any title to the land ; on the contrary, he avers that before the time of his conveyance he was in possession of the land under Waters, that afterwards the demandants disseised Waters, and being seised by disseisin they conveyed to the tenant all their right and title, with a covenant of warranty, similar to the one contained in his conveyance to them. The demandants, in their turn, would be estopped to aver that they had no title in the land, nor is there any such averment in the pleadings. The tenant at the time of his reconveyance might have had a valuable interest in the land by possession and improvements, although Waters had a paramount title. This in- terest, whatever it was, passed to the de- mandants by the tenant's deed, and it was all the title he had to convey, or was ex- pected to convey. If under these circum- stances the demandants could now acquire, without any consideration, another title by estoppel, we should be compelled to admit that estoppels are as odious as they are sometimes said to be. But the doc- trine of estoppel aids much in the admin- istration of justice ; it becomes odious only when misunderstood and misapplied. Nothing can be more just than the doc- trine of estoppel urged by the demandant's council, when applied to a conveyance with the general covenant of warranty ; but to apply the doctrine to the tenant's restricted conveyance and covenant would be a manifest perversion of the principle upon which the doctrine is founded." This decision was approved in Trull v. Eastman, 3 Met. (Mass.) 121, and similar decisions were made in Loomis v. Pin- gree, 43 Me. 314 ; Bell-y. Twilight, 6 Fost. (N. H.) 401 (where is an elaborate opin- ion) ; Tillotson v. Kennedy, 5 Ala. 413 ; Chauvin v. Wagner, 18 Mo. 553 ; West- ern Mining and Manufacturing Co. v. Peytona Cannel Coal Co., 8 W. Va. 406, 450. In Doane v. Willcutt, 5 Gray, (Mass.) 329, an indenture of partition 373 § 250.] OPERATION OP COVENANTS FOR TITLE [CHAP. XI. claims, and the after-acquired title is derived from a source not thus specified in the covenants. 1 Nor will a grantor be estopped from asserting a title subse- quently acquired by himself by the disseisin of his grantee or those claiming under him, followed by adverse possession long enough to have barred the rights of a stranger. 2 So where the was made between the plaintiff, defendant, and other persons, as tenants in common, wherein the parties, reciting their seisin in fee, mutually conveyed certain premises with a covenant " that each of the parties might enjoy the same in severalty, free and discharged of all right, title, interest, or claim whatever of them or either of them, or of any persons claiming from, by, or under them, or any of them" (for the effect of the words "by, from, or under," see supra, § 92 el seq). At the date of the partition, there was an outstanding title in third persons to the portion con- veyed to the defendant, which the plaintiff subsequently purchased and asserted. It was contended on behalf of the defendant that the plaintiff could not set up this title in opposition to the deed of partition, but the court said, per Shaw, C. J. : "The re- cital of seisin cannot have greater force than a direct covenant of seisin which is not broken by the existence of an out- standing paramount title. It is a cove- nant that all the right, title, and interest which the plaintiff then had, together with a seisin de facto as against him, his heirs and assigns, passed to the defendant. But we think it does not estop him from now asserting, and maintaining by proof, that at the time of the partition a third party held an outstanding paramount title, su- perior to that of either of these parties, and that the plaintiff afterwards acquired that title, and now relies upon it as a good and valid title. It admits that he was then seised (not of an indefeasible title, but de facto), that all the interest he then had passed to the defendant, and that he became seised de facto as against the plain- tiff, by force of the conveyance. Comstock v. Smith, 13 Pick. 116 ; Wight v. Shaw, 5 Cush. 56. This case is clearly distin- guishable from that of a conveyance of land, with a general covenant of warranty 374 against the lawful claims of all persons. There, if there be an outstanding title and the grantor with such warranty acquires such title, it inures, without further act, to the use of his grantee. . . . No such estoppel can be claimed under this deed of partition." 1 Quivey v. Baker, 37 Cal. 471 ; Fields v. Squires, Dead. (C. C. U. S.) 366, 380 ; Lamb v. Kamm, 1 Sawy. (C. C. U. S. ) 238 ; Lamb v. Wakefield, id. 251. 2 Stearns v. Hendersass, 9 Cush. (Mass.) 497 ; Tilton v. Emery, 17 N. H. 536 ; Smith v. Montes, 11 Tex. 24 ; Hines v. Robinson, 57 Me. 330 ; Franklin v. Dor- land, 28 Cal. 180 ; Johnson v. Farlow, 13 Ired. L. (N. C.) 84; Reynolds v. Cathens, 5 Jones L. (N. C.) 437; Eddleman v. Car- penter, 7 id. 616 ; Sherman v. Kane, 46 N. Y. Supr. Ct. 310. In Stearns v. Hen- dersass, supra, the defendant, in 1826, conveyed certain lands to one Blake, who conveyed to the plaintiff, and the latter brought a writ of entry. The defence set up was an adverse possession by the de- fendant from the date of his deed to the time of suit (1851), and the court held it to be a good defence. ' ' The proposed de- fence," said the court, " does not impeach the deed to Blake. It admits its full force and effect as a valid deed, and concedes that at its date a good title passed to the grantee by virtue of it. The whole foun- dation of the defence rests on an after-ac- quired title by the tenant, or subsequent acts divesting the grantee of his interest in the premises. Full effect is given to the deed of the defendant to Blake, when it is held to vest the absolute title in Blake at its delivery, and that it estops the de- fendant from setting up any other title as then held adversely. The grantor, in such case, may show a subsequently acquired title from his grantee, and it is no answer to an alleged disseisin, or a bar by more § 250.] BY WAY OF ESTOPPEL. [CHAP. XI. deed, by reason of its imperfect execution, is insufficient to pass the estate, there will, on the application of the same doctrine, viz. that there is no right of action, be no estoppel. 1 So, natu- rally, as has been already said, where the covenants have been released or extinguished. 2 To create the estoppel, it is also considered necessary that the after-acquired estate should be held by the grantor in the same right as that in which his former conveyance was made. Thus where one conveys land in his own right with covenants for title, and subsequently acquires title thereto as trustee, the doc- trine of estoppel is held not to apply, 3 and it is deemed immaterial whether, in the later conveyance to the former grantor, the trust is expressed or implied. 4 than twenty years' adverse possession, that the disseisor, previous to his entry and the commencement of his adverse possession, fully acknowledged the title of the dis- seisee. Nor does the covenant of warranty in the deed to Blake estop him from set- ting up this defence, for it was a good title that was conveyed, and there was no breach of the covenant, and of course no ground for the estoppel against the defendant, by reason of the covenant." In Sherman v. Kane, supra, the rule was applied where the grantor had never parted with pos- session. 1 Patterson v. Pease, 5 Ohio, 191 ; Wal- lace v. Miner, 6 id. 370 ; Kercheval v. Triplett, 1 A. K. Marsh. (Ky. ) 493 ; Con- nor v. McMurray, 2 Allen, (Mass.) 204. In Domiuick v. Michael, 4 Sandf. S. C. (N. Y. ) 417, it was left undecided whether a covenant for further assurance in a void marriage settlement would estop a husband from a title, as tenant by the curtesy, ac- quired by reason of the settlement being void. 2 Goodel v. Bennett, 22 Wis. 565, supra, p. 372, n. 4. 3 Jackson v. Mills, 13 Johns. (N. Y.) 463 ; Sinclair v. Jackson, 8 Cow. (N. Y.) 587 ; Jackson v. Hoffman, 9 id. 271 ; Burchard v. Hubbard, 11 Ohio, 316 ; see also Buckingham v. Hanna, 2 Ohio St. 555, infra. 4 Kelley v. Jenness, 50 Me. 455. In this case the defendant conveyed the premises in mortgage to the plaintiff's intestate with covenants of general warranty. At the time of this mortgage, a prior mortgage was outstanding, which was subsequently assigned to the defendant. It was, how- ever, proved that this assignment, al- though absolute on its face, was, with the exception of a small sum, paid for with the money of Hill, to whom it was assigned by the defendant on the day of its purchase by the latter, and it was held that the assignment to the defendant did not inure as a payment for the benefit of the plaintiff, except as to the small amount paid by the defendant with his own money. "In the case," said Kent, J., who deliv- ered the opinion of the court, " of Jackson v . Mills, 13 Johns. (N. Y. ) 463, it was held where one took a deed merely as trustee for another although absolute in form, and the consideration was paid by the other, and thereupon he gave him a deed, that the latter deed was a mere exe- cution of his trust, and did not operate as an estoppel to any title he might there- after acquire in his own right to the same lands. The case of Jackson v. Hoffman, 9 Cowen, (N. Y.) 271, reaffirms the above case, and decides that estoppels do not ap- ply, except between parties acting in the same character. In that case the pur- chase was made by one in his individual capacity, and the covenant was made by him as administrator. Sinclair v. Jack- son, 8 Cowen, 565, sustains the same view, and the court say, ' For a conveyance to operate as an estoppel, it is necessary that 375 § 251.] OPERATION OP COVENANTS FOR TITLE [CHAP. XI. Such is considered, by a large class of American cases, to be the law of " estoppel by deed " as connected with the covenants for title. § 251. There are, however, at least four classes of cases, and possibly others, which, according to some of the same decisions, show that the doctrine of estoppel, as thus applied to passing an after-acquired interest, is not based, as the current of authorities would seem to found it, solely on the ground of avoiding circuity of action. 1. One, and the most important of these is, as will be here- after shown, 1 where the question has arisen between the assignees of the original title and the assignees of that subsequently ac- quired ; for as the former have, of course, no right of action against the latter, there can be no circuity of action. 2. The second is where a married woman in conveying her own land has joined with her husband in covenants for the title, and it should be in the same right with the former one. To estop, a conveyance must be by one claiming under and in right of identically the same power and the same estate as he first conveyed.' [The learned judge was, however, mistaken in attribut- ing to the court the remarks just quoted from Sinclair v. Jackson. They were used arguendo by the counsel for the defendant in error ; see pp. 565, 566, of the report in 8 Cowen.] If, as we have seen in the case before us, Jenuess took the assign- ment of the mortgage charged with a trust, it was not in the same character and of the same estate as in his deed to Kelley. He was here a mere trustee. There can be no division or separation in the effect of the assignment. He did not take a conveyance and afterwards have engrafted thereon a trust, allowing the legal estate to vest absolutely and for a time before any trust arose. The assignment was charged with the trust as soon as exe- cuted. Is a trust estate such an after- acquired title as will inure by way of estoppel ? It would hardly be contended that a conveyance to one as trustee for the use and benefit of a charitable association, or a religious body, would thus inure. Nor where the conveyance creates a trust and declares it fully in the deed, and the purpose is to give the whole benefit of the 376 estate to a party named and no personal benefit to the trustee. But an implied trust is equally a trust for the benefit of another as when the trust is declared in writing. It may require a different mode of proof to establish its existence, and it may be limited in case of purchasers with- out notice. But being established, it fol- lows the general rules, and is subject to the doctrines applicable to trusts [citing Burchard v. Hubbard, 11 Ohio, 316, and other cases]. . . . These cases rest upon the general principle that the estate must be acquired by the warrantor in fact and substance as his own property, without in- tervening rights in third parties, and not as mere trustee for another's use, or as a mere conduit of title. "Whilst the law is careful to see that an after-acquired title, purchased and paid for by the warrantor, shall inure, it is equally careful to guard against any unequitable result by enfor- cing the rule where the substance is want- ing and the rights of others are impaired." To the same effect is the recent case of Gregory v. Peoples, 80 Va. 355. There, the after-acquired title was purchased with the money of another, and the court held that the resulting trust in his favor pre- vented the application of the doctrine of estoppel. 251.] BY WAY OF ESTOPPEL. [CHAP. XI. it is held that although she may not be liable in damages after his death, yet that the covenants will estop her and those claim- ing under her from setting up any claim to an after-acquired title. 1 This exception, however, has been by no means univer- sally recognized, 2 and in some States such a result is prevented by statutory enactment. 3 1 Massie v. Sebastian, 4 Bibb, (Ky.) 436 ; Fowler v. Shearer, 7 Mass. 21 ; Col- cord v. Swan, id. 291; Nash v. Spofford, 10 Met. (Mass. ) 192 ; Doane v. Willcutt, 5 Gray, (Mass.) 332 ; Hill v. West, 8 Ohio, 226. " These decisions," it was said in Hill's Lessee v. West, "may not seem to be founded upon the reasons which are usually assigned why the covenants in a deed should operate by way of estoppel, that is, to prevent circuity of action ; still they seem to us to be reasonable, and such as tend to the furtherance of justice ; and when a married woman undertakes, in conjunction with her husband, to con- vey her land with covenants of warranty, it is sufficient to protect her from the pay- ment of damages for the breach of those covenants ; for all other purposes they should be held operative. If, then, after the execution of the deed to the lessor of the plaintiff, [the married women who joined with their husbands in the deed] acquired title to the premises in contro- versy, that title inured to the benefit of the lessor of the plaintiff, and neither they nor those claiming under them shall be permitted to defeat the plaintiff by setting up this after-acquired title." To the same effect are King v. Rea, 56 Ind. 1 ; Beal v. Beal, 79 id. 280 ; Knight v. Thayer, 125 Mass. 25 ; Barker v. Circle, 60 Mo. 258. And in Fletcher v. Coleman, 2 Head, (Tenn. ) 384, the court seems to have approved of these decisions, although the case was decided upon another ground. In Graham v. Meek, 1 Ore. 328, a married woman was held to be estopped by a deed without covenants. Infra, Ch. XIII. 2 Gonzales v. Hukil, 49 Ala. 260 ; Shu- maker v. Johnson, 35 Ind. 33 ; Thompson v. Merrill, 58 Io. 419 ; Hobbs v. King, 2 Met. (Ky.) 141; Nunnally v. White, 3 id. 593 ; Hempstead v. Easton, 33 Mo. 142 ; Wadleigh v. Glines, 6 N. H. 18 ; Den d. Hopper v. Demarest, 1 Zabr. (N. J.) 541; Martin v. Dwelly, 6 Wend. (N. Y.) 14; Carpenter v. Schermerhoru, 2 Barb. Ch. (N. Y.) 314 ; Dominick v. Michael, 4 Sandf. S. C. (N. Y.) 424; Grout v. Townsend, 2 Hill, (N. Y.) 557 ; Edwards v. Davenport, 4 McCr. )C. C. U. S.) 34. In Wight v. Shaw, 5 Cush. (Mass.) 65, though the question was left undecided, the court strongly inclined to the opin- ion that there would be no estoppel, and in Lowell v. Daniels, 2 Gray, (Mass. ) 168, it was distinctly held that a married wo- man who executed a deed of her real es- tate with covenants of warranty bearing date previously to the marriage by the name which she then bore, with the fraud- ulent purpose of imposing upon some person to be affected by it and without disclosing the fact of her marriage, did not thereby estop herself and her heirs to set up her title in the land as against her grantee, or against a purchaser from him without notice. See infra, Ch. XIII. Wil- son v. King, 23 N. J. Eq. 150, was the case of a joinder by a married woman, resi- dent in New York, in a conveyance with covenant against incumbrances of her hus- band's property in New Jersey, and the court held that as the covenant was per- sonal, it did not affect a mortgage created by the husband before the conveyance and assigned afterward to the wife. 3 Thus in Virginia, the Revised Code of 1849 declared that " a privy examination of the wife shall operate to pass the right of dower, and all right and interest of every nature which at the date of such writing she may have, but such writing shall not operate any further upon the wife or her representatives by means of any covenant of warranty contained there- in." This was taken in substance from a prior act re-enacted in 1819 (and was doubtless owing to the decision in Nel- son v. Harwood, 3 Call, 394, infra, Ch. XIII.), and similar enactments prevail in 37T 251.] OPEEATION OP COVENANTS FOE TITLE [CHAP. XI. Where, however, the conveyance only purports to pass the land of the husband, and the wife merely joins to bar her dower, a title subsequently acquired by her to the same lands will not inure to the benefit of the former grantee. 1 In such case, she is neither bound by the covenants in the deed nor estopped beyond her interest at the time of the conveyance. 2 3. Another exception to the doctrine that the estoppel is based on the ground of avoiding circuity of action, is in the case of the grant by a State, which though of course not liable to an action on the covenants, is yet held to be bound by the estoppel arising therefrom to the same extent as an individual. 3 4. The fourth exception is where the covenantor has been ad- judged a bankrupt, and it is held that although his discharge in bankruptcy may be a release from all personal liability on his contracts, 4 yet the estoppel created by his covenants for title still operates upon the estate. 5 the States of Delaware, Illinois, Indiana, Michigan, Missouri, and Oregon. See, as to Missouri, Chauvin v. "Wagner, 18 Mo. 542, infra, Ch. XIII. 1 Strawn v. Strawn, 50 111. 33 ; Schaff- ner v. Grutzmacher, 6 Io. 137 ; Childs v. McChesney, 20 id. 431 ; O'Neil v. Van- derburg, 25 id. 104 ; Raymond v. Holden, 2 Cash. (Mass.) 270 ; Jackson v. Vauder- heyden, 17 Johns. (N".Y.) 167. Griffin v. Sheffield, 38 Miss. 359. 3 Magee v. Hallett, 22 Ala. 718 ; Nieto v. Carpenter, 7 Cal. 527 ; Commonwealth v. Pejepscut, 10 Mass. 155 ; Common- wealth v. Andre, 3 Pick. (Mass.) 224 ; Denn v. Cornell, 3 Johns. Cas. (N. Y.) 174 ; People v. Society, 2 Paine, (C. C. U. S. ) 557 ; Carver v. Jackson, 4 Pet. (S. C. U. S.) 87; Menard v. Massey, 8 How. (S. C. U. S.) 313. In North Carolina, however, a con- trary doctrine prevails, and it is there held that a State cannot be estopped. Taylor v. Shnfford, 4 Hawks, 116 ; Candler v. Lunsford, 4 Dev. & Bat. 407 ; "Wallace v. Maxwell, 10 Ired. 112. "The sovereign power," said Henderson, J., in delivering the opinion in Taylor v. Shufford, "con- veys neither by feoffment, bargain and sale, or any conveyance dependent upon livery of seisin or transferring uses into possession. By grant, the sovereign will 378 alone passes the property evidenced by mat- ter of record, and I know of no case where the sovereign power has been estopped." 4 Infra, Ch. XIII. 6 Stewart v. Anderson, 10 Ala. 510 ; Dorsey v. Gassaway, 2 Harr. & Johns. (Md.) 411 ; Bush v. Cooper, 26 Miss. 599, affirmed 18 How. (S. C. U. S.) 82 ; Chamberlain v. Meeder, 16 N. H. 384 ; Gregory v. Peoples, 80 Va. 355. In Bush v. Cooper, supra, when in the Supreme Court of the United States, Curtis, J., in delivering the opinion of the court, re- ferred to the Mississippi statute which gave to the words "grant, bargain, and sell " the effects of certain covenants for title (as to which see infra, Ch. XII.), and said : " The argument on the part of the appellant is that under the fourth section of the bankrupt act he is discharged from all debts, contracts, and other engage- ments provable under the act ; that not only the debt secured by this mortgage, but the covenant of warranty itself, was provable under the act, and consequently, the covenantor being released from the covenant, it could no longer have the op- eration allowed to it by the courts of Mis- sissippi. It must be admitted that if the covenantee or his assignee had released the covenant, it would be difficult to maintain that it could continue in existence for any § 251.] BY WAY OF ESTOPPEL. [CHAP. XI. 5. Another exception, not perhaps sufficiently established to be considered as of general application, has been recognized in Mas- sachusetts at least ; namely, that although all right of action on the covenants may have been barred by the statute of limitations, yet as the covenants themselves are still subsisting, they will operate to transfer an after-acquired title to a former grantee. 1 From these exceptions, four of them well settled, it would seem that the doctrine does not rest upon that of avoiding circuity of action, but that the estoppel is held effective where no right of action whatever exists upon any covenant. 2 purpose. But it must be considered that whatever discharge has taken place in this case is by force of a statute, which may have so qualified and limited its effect as still to leave the covenant in existence for one purpose, though not for others." And then, after referring to the bankrupt act, the opinion went on to say : "It is, therefore, obvious that though the bankrupt person- ally was released by the act, the debt due from the land continued undischarged. In this particular, beyond all doubt, the discharge by the act differed from a release by the creditor ; since if the latter had re- leased the debtor, the mortgage would there- by have been satisfied, and the charge on the land destroyed. . . . Nor is there any incongruity with established principles in holding that the personal discharge of the debtor does not free him from the estopjtel. If this obligation could rest upon a cove- nant effectual in law to charge the gran- tor in a personal action, it would follow that when such personal liability was re- leased by the bankrupt act the estoppel would naturally fall with it, and that an intention to preserve the estoppel ought to be clearly indicated, to induce the court to say it was not destroyed ; but such es- toppels do not depend on personal liability for damages. This is apparent when we remember that estoppels bind not only parties, but privies in blood and estate, though not personally liable on the cove- nants creating the estoppel. . . . Indeed, it is the settled doctrine of this court not only that no existing personal liability is necessary to work an estoppel, but that none need have existed at any time." And the learned judge then referred to the case of Van Rensselaer v. Kearney, 11 How. 322, infra, § 255, as having been decided " after great consideration and a close examination of the authorities." 1 Cole v. Raymond, 9 Gray, 217. "It is no answer to this," (that the subsequent estate passed by estoppel, ) said Shaw, C. J., who delivered the opinion, "that an action has been brought on the covenant of war- ranty and held to be barred by the statute of limitations. Holden v. Fletcher, 6 Cush. 235. A covenant of warranty in a deed of conveyance of land, whilst it is a covenant real and runs with the land and binds the grantor and his heir by its force as a cove- nant real, is also a personal covenant, and if a breach occurs in the lifetime of the warrantor, an action will lie against him to recover damages ; or if a breach occurs before the final settlement of the estate, an action will lie against his personal rep- resentatives. When the covenant is thus treated as a personal contract and sought to be enforced as such by personal action, it must be treated in all respects as a per- sonal obligation ; the usual incidents to the conduct of a personal action will be applied. But this will not affect the cov- enant real in its broader application." 2 To these, Mr. Bigelow (Estoppel, 4th ed. 436) adds a sixth exception, where the consideration of the grant witli warranty was natural love and affection only ; citing Robinson v. Douthit, 64 Tex. 101, as the authority for it. That case, however, did not hold that there could be no action on the covenants in a conveyance whose con- sideration was natural love and affection, but only that there could be no action for the sum paid in such a case, because 379 § 252.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. § 252. But as the presence of covenants seems largely to lie at the base of the doctrine, it remains to consider, — Secondly, what covenants for title will or will not produce this effect of estoppel. In most of the States, it is held that the presence of a covenant of general warranty in a conveyance will not only estop the grantor and his heirs from setting up an after-acquired title, but will, by force of the covenant, have the effect of actually trans- ferring the estate subsequently obtained, as if it had originally passed by the deed. 1 none was paid ; and it also held such a consideration "sufficient to give effect to the covenants in the deed." 1 Kennedy v. McCartney, 4 Port. (Ala.) 141 ; Hoyt v. Dimon, 5 Day, (Conn.) 479 ; Dudley v. Cadwell, 19 Conn. 226; Eigg v. Cook, 4 Gilm. (111.) 348 ; Jones v. King, 25 111. 384 ; Gochenour v. Mowry, 33 id. 333 ; Thomas v. Stickle, 32 lo. 72 ; Massie v. Sebastian, 4 Bibb, (Ky.) 436 ; Logan v. Steele, 4 T. B. Mon. (Ky.) 433; Dickerson v. Talbot, 14 B. Mon. (Ky.) 65 ; Lawry v. Williams, 13 Me. 281 ; Baxter v. Bradbury, 20 id. 260 ; Pike v. Galvin, 29 id. 183 ; Williams v. Thurlow, 31 id. 395 ; Somes v. Skinner, 3 Pick. (Mass.) 52 ; Com stock v. Smith, 13 id. 116 ; Ruggles v. Barton, 13 Gray, (Mass.) 506; Kimball v. Blaisdell, 5 N. H. 533 ; Wark v. Willard, 13 id. 389 ; Thorndike v. Norris, 4 Fost. (N. H.) 454 ; Jewell v. Porter, 11 id. 39 ; Kimball v. Schoff, 40 N. H. 190 ; Moore v. Kake, 2 Dutch. (N. J.) 574 ; Jackson v. Wins- low, 9 Cow. (N. Y.) 18; Jackson v. Bradford, 4 Wend. (N. Y.) 622 ; Sparrow V. Kingman, 1 Comst. (N. Y.) 246; Rath- bun v. Rathbun, 6 Barb. (N. Y.) 107 ; Wellborn v. Finley, 7 Jones L. (N.C.)228 ; the Pennsylvania cases are noticed infra, p. 409 et scq. ; Davis v. Keller, 5 Rich. Eq. (S. C. ) 434 ; Harrison v. Boring, 44 Tex. 255 ; Middlebury College v. Cheney, 1 Verm. 349; Blake v. Tucker, 12 id. 44. In Foss v. Strachn, 42 N. H. 40, it was held that the mortgagor of an estate of home- stead, who had minor children living at the time of the mortgage, was estopped by the covenants of warranty therein contained from claiming any estate in the premises 380 conveyed, and in Strachn v. Foss, id. 43, the minor children were also held to be es- topped during the lifetime of their father. In both of these cases, the mortgage was given to secure a debt which existed before the homestead right accrued, but this the court considered as immaterial. The con- trary has, however, been since decided in Doyle v. Coburn, 6 Allen, (Mass.) 71. The doctrine of this class of cases is thus stated in a late case: "It is a well-settled principle of the common law, that if one conveys lands, or other real estate, with a covenant of general war- ranty against all lawful claims and de- mands, he cannot be allowed to set up, against his grantee or those claiming un- der him, any title he himself may sub- sequently acquire from another by purchase or otherwise. Such new title will inure by way of estoppel to the use and benefit of his grantee, his heirs or assigns. " Jones v. King, 25 111. 384. It is submitted that the objection to this statement of the law is that the doctrine is not " a well-settled principle of the common law," but purely an equitable one, which has unconsciously been administered by the courts, in the cases referred to, through the medium of common law forms. See infra, § 265 et scq. The conclusions to which this class of cases tend and the authorities generally relied upon in our courts are thus stated by Walworth, Ch., in Bank of Utica v. Mersereau, 3 Barb. Ch. (N. Y.) 567 : "By the common law, if a grantor who had no interest, or only a defeasible interest in the premises granted, conveyed the premises with warranty, and afterwards obtained an absolute title to the property, § 252.] BY WAY OP ESTOPPEL. [chap. XI. There are, however, some qualifications to this. Tims it seems that the warranty implied from a partition 1 will not have the same operation as the express covenant in passing an after- acquired title. 2 Nor will this result be caused when there are mutual estoppels, for " estoppel against estoppel doth put the mat- such title immediately became vested in the grantee or his heirs or assigns, by es- toppel. Co. Litt. 265 a. And if the grantor, or any one claiming title from him subsequent to such grant, sought to recover the premises by virtue of such after-acquired title, the original grantee or his heirs or assigns, by virtue of the warranty which ran with the title to the land, might plead such warranty, by way of rebutter or estoppel, as an absolute bar to the claim. Co. Litt. 365 a; Termes de la Ley, tit. Guaranty ; Toml. Law Diet. art. Rebutter. This principle has been applied to all suits brought by persons bound by the warranty or estoppel, against the grantee or his heirs or assigns, so as to give the grantee and those claiming under him the same right to the premises as if the subsequently acquired title or interest therein had been actually vested in the grantor at the time of the original conveyance from him with warranty, where the covenant of warranty was in full force at the time when such subsequent title was acquired by the grantor. Jackson v. Wright, 14 Johns. 193 ; Brown v. M'Cor- mick, 6 Watts, 64 ; Comstock v. Smith, 13 Pick. 119. And where an estoppel runs with the land, it operates upon the title, so as actually to alter the interest in it, in the hands of the heir or assigns of the person bound by the estoppel as well as in the hands of such person himself. Thus if a man by deed indented make a lease of land, reserving rent, which implies a warranty on the part of the lessor, and the landlord has no interest in the laud at the time of the execution of the lease, if he afterwards purchases the land, and then sells it to a stranger, the latter will hold it subject to the lease ; and coming in as the assignee, or grantee, of the person who made the lease, will be estopped from showing that the lessor had no interest in the land at the time he made such lease. 1 Co. Litt. (19th Lond. ed.) 47, note 11 ; 7 Bac. Abr. Warranty, L ; Bull v. Wiott, 1 Roll. Abr. 868; Somes v. Skinner, 3 Pick. 52 ; Trevivan v. Lawrence, 5 Mod. 258. For as a covenant of warranty runs with the lands, so as to give the heirs and as- signs of the grantee the benefit of the estoppel as against the warrantor, it runs with the subsequently acquired interest of the warrantor, in the hands of the heirs and assigns of the latter, so as to bind that interest by the estoppel, as against any person claiming the same under him in the post." If, as it will be attempted to show hereafter, the real doctrine involved is equitable and not legal, it seems the more remarkable that this language should have been used by a Chancellor. 1 Infra, Ch. XII. 2 In Rector v. Waugh, 17 Mo. 13, the application of the doctrine of estoppel to cases of warranty in a partition was said to be "very harsh in its operation. A num- ber of proprietors of a town, supposing that they have a title to the land on which the town is laid off, make an equal parti- tion of the lots amongst themselves, and mutually convey with warranty. The en- tire title to the land, which is the subject of partition, afterwards fails. If the mat- ter ended here, it would not be maintained that any one of the proprietors had a cause of action against the others, as what he recovered on his warranty he in turn would be compelled to refund to him from whom he had recovered on the warranty he had given. . . . After the failure of the first title, one or more of the proprietors acquire a new and distinct title to the land on which the town was laid off, and a former pro- prietor, who has neither contributed nor offered to contribute anything towards the acquisition of the new title, lays claim to all the lots conveyed to him by the deed of partition. The common law implied no warranty when partition was made be- tween joint tenants and tenants in common. 381 § 252.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. ter at large." 1 So it has been said in Alabama, that the gen- eral rule only applies where the vendor had no valid title at the time of executing the deed, and not where he is inhibited from selling, by the letter, spirit, or policy of a legislative act. 2 And it was held in a later case in the same State that a covinous deed from father to son, with warranty, would not pass to the son the after-acquired title by estoppel as against the creditors of the father. 3 In Illinois and Wisconsin, the covenant for further assurance, Indeed, by the common law, partition was not compellable among them. The war- ranty was only implied on partition among coparceners, and only extended to the land which was the subject of the parti- tion. The doctrine which makes an out- standing title, bought in by one joint tenant or tenant in common, inure to the benefit of his co-tenants, it seems, is one of equitable cognizance, and courts of equity would mould and apply it so as to do jus- tice among the tenants. Van Home v. Fonda, 5 Johns. Ch. 388." The case itself was decided on the ground that the con- veyance having omitted the word heirs, a life estate only passed to the grantee, and that the warranty was only coextensive with the estate to which it was annexed (see infra, p. 391, n. 2), the court saying, " We feel no reluctance in answering a technical action with a technical objec- tion." In Woodbridge v. Banning, 14 Ohio St. 328, a devisee instituted proceedings to establish the will of the testator. Pend- ing these, a partition was had between all the heirs at law of the testator, of whom the devisee was one, and it was held that, when the will was finally established, he was not estopped by the partition from claiming as devisee. The case, however, was decided without reference to the war- ranty implied from partition, as this doc- trine escaped the attention of the court. " Had it been otherwise, the reasons given for the decision would probably have been modified, but the decision would have been the same." Walker v. Hall, 15 id. 363. In this last case, lands of a husband were sold at sheriffs sale, and finally became vested in the wife's father, and a partition being had between the devisees of the lat- 382 ter, to which the wife was a party, it was held that she was not thereby estopped on the death of her husband from claiming her dower in the lands. See the opinion of the court, infra, Ch. XII. In the recent case of Rountree v. Den- son, 59 Wis. 522, a tenant in common, who had previously conveyed away his interest, made partition with express covenants, and afterwards reacquired title to the moiety he had formerly parted with, but was held to be estopped from setting up this new title as against his co-tenant. 1 Co. Litt. 352 b(L); Illinois Land Co. v. Bonner, 91 111. 114 ; Brown v. Staples, 28 Me. 503 ; Wheelock v. Henshaw, 19 Pick. (Mass.) 345 ; Carpenters. Thompson, 3 N. H. 204 ; Kimball v. Schoff, 40 id. 190; Pugh v. Mays, 60 Tex. 191. In Hobbs v. King, 2 Met. (Ky.) 140, this doctrine was sought to be applied to a case in which A. and his wife conveyed to B., who reconveyed to them, and they again conveyed to C, all the deeds containing covenants of general warranty. C. was evicted by paramount title, and sued B. upon the covenant of wai-ranty contained in the deed of the latter to A. and wife. But the court held that while the wife of A., being a married woman, was not liable on the covenants in the deed to B., yet as she had by statute no power "to convey and pass over her estate," the benefit of the covenants in the reconveyance by B. passed at once to her grantee, and the estoppels therefore were not mutual. 2 Kennedys. M'Cartney, 4 Port. (Ala.) 158 ; see as to this, supra, § 47 et scq. 8 Stokes v. Jones, 21 Ala. 738 (and see s. c. 18 id. 734). 252.] BY WAY OF ESTOPPEL. [CHAP. XI. when it is the only covenant in the deed, has been considered as effective for the purpose of estoppel as the covenant of warranty, 1 but in Missouri and Minnesota it has been held that a covenant for further assurance merely creates an equity in favor of the grantee, which is enforceable as to the after-acquired title against the grantor or his heirs. 2 In New Hampshire, Mississippi, and the Province of Ontario, it has been decided that when the covenants are those of good right to convey and for quiet enjoyment, a title subsequently ac- quired will pass ; 3 and in a case in the Supreme Court of the 1 Bennett v. Waller, 23 111. 183 ; Pierce v. Milwaukee R. R., 24 Wis. 553. In the former case the court say : " If the deed be but a quitclaim deed, it contains a cove- nant for further assurances ; under this covenant a subsequent title inures as well as under a covenant of warranty. The reason why a subsequently acquired title is held to pass by a deed containing cove- nants of warranty is, that it effectuates the real intent of the parties, which was to convey the true and real title to the land, and to avoid circuity of action and further litigation. It is a principle of equitable jurisprudence adopted by the courts of law, and by them engrafted into the common law itself, and has been sanc- tioned by our statute. The same reasoning applies in the same terms and with equal force where the deed contains a deed [cove- nant] for further assurances as where it contains a covenant of warranty." - Hope v. Stone, 10 Minn. 141 ; Chau- vin v. Wagner, 18 Mo. 531. See also Smith v. Baker, 1 Younge & Coll. Oh. 223, and infra, §§ 262, 265. 8 Foss v. Strachn, 42 N. H. 40 ; Wight- man v. Reynolds, 24 Miss. 675. In the latter case, Wightman and Anderson, as trustees of the town of Aberdeen, conveyed the premises in question to Gholson, with the following covenants: "And the said trustees, parties of the first part, for them- selves and their successors, covenant with the party of the second part that they have full right to convey said premises by vir- tue of a deed made to us by Robert Gordon and James Davis, and further, that the said premises are not nor shall be embar- rassed by any acts of our own." " By this covenant," said Fisher, J., who delivered the opinion, "Wightman not only ad- mitted that he had a good title to the premises at the date of the deed, but he thereby precluded himself from acquiring any title in future which could, in any manner, embarrass the title conveyed, or the rights of his vendee under the same. . . . Wightman, whose title or right of possession is now set up in the defence, could not, after his deed, acquire any right whatever from any third party ; he could in future only become interested in the lots by contracting with Gholson, his ven- dee, or with a person deriving title from Gholson. A title acquired from any other source would give him [Wightman] no rights whatever in the premises ; but it would only enable him to perform in the true spirit the covenant in his deed, and such title would inure to the benefit of his vendee." It will be observed that the conveyance was made by the plaintiff as trustee, and the subsequent title was ac- quired in his own right, (supra, p. 375,) but the case was decided without reference to this point. "For upwards of forty years," said Strong, J., in Trust and Loan Co. v. Rut- tan, 1 Duval, (Canada,) 564, "it has been held in Upper Canada that covenants for title, especially the usual covenant that the granting party is seised in fee at the date of the deed, a covenant which this deed contains in the absolute not in the restricted form, are as effectual in working an estoppel as a recital to the same effect would have been ;" citing Doe d. Hennesey v. Myers, 2 U. Can. Q. B. (o. s.) 424 ; Doe d. Irvine v. Webster, 2 U. Can. Q. B. 224 ; 383 § 253.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. United States, where the covenants were for seisin and of good right to convey, the court referred to the general rule, though the point was not directly decided. 1 § 253. It has, as we have seen, 2 been decided in Maine that the covenant of non-claim will create no estoppel, either when standing alone, 3 or when joined with a covenant N against incum- McLean v. Laidlaw, id., 222. This is, however, very different from announcing that the estoppel operates to actually trans- fer the estate. i Irvine v. Irvine, 9 Wall. (S. 0. U. S.) 618. " It is a general rule," said Strong, J., in delivering the opinion, "that when one makes a deed of land, covenanting that he is the owner, and subsequently acquires an outstanding and adverse title, his new acquisition inures to the benefit of his grantee on the principle of estoppel. As the deed of the plaintiff in this case contained an assertion that he was well seised in fee and had good right to sell and convey in fee, it would not be difficult, were it necessary, to show that in taking the patent he was in law acting for his grantee. But it is not necessary to rely upon that principle. The evidence in the case was, that prior to his deed to the de- fendant, to wit, on the 21st of February, 1849, he had bought the land from the government and had paid all the purchase money. The patent subsequently given to him was, therefore, not a new acquisi- tion of title. It was only a confirmation of the right which he had acquired before the deed was made." This case is one of a class as to title subsequently inuring by patent from the government. See supra, p. 367, n. The cases in the New England States, which hold that no estoppel will be created by the covenants for seisin and of good right to convey, when those covenants are satisfied by the transfer of a tortious seisin, have already been referred to. Supra, § 42 et scq. ; Allen v. Say ward, 5 Greenl. (Me.) 227. 2 Supra, p. 370. 8 Pike v. Galvin, 29 Me. 185 (overrul- ing Fairbanks v. Williamson, 7 Greenl. 97; see the dissenting opinion of Mr. Justice Wells, 30 Me. 539 ; and see Ham v. Ham, 384 14 id. 355, where Fairbanks v. Williamson was virtually denied) ; Partridge v. Pat- ten, 33 id. 483 ; Loomis v. Pingree, 43 id. 314 ; Harriman v. Gray, 49 id. 538. Pike v. Galvin was a striking illustration of the extent to which the docti'ine of estoppel may lead. Ward, being the owner of cer- tain premises, agreed in 1820 by articles to convey them to Jellison, who entered into possession, but who did not, it seems, comply with the condition of the articles, and in 1823 assigned the contract to the plaintiff, and on the same day executed to him a release of the premises, containing a covenant of non-claim. In 1825, Ward conveyed the premises, inter alia, to Dyer, who in 1829 conveyed them to Jellison. Jellison, in 1833, conveyed them to the landlord of the defendants. All these con- veyances were on record. Jellison and those claiming under him had always been in possession, the plaintiff never having had the possession. Under these circum- stances, the plaintiff claimed that by vir- tue of the release with covenant of non- claim from Jellison to himself in 1823, the title acquired in 1829 inured to his bene- fit ; but the court held (Wells, J., dissent- ing) that inasmuch as the release contained no covenant of warranty, but only a cove- nant of non-claim, the doctrine of estoppel could not apply. The covenant could not operate in favor of the plaintiff, it was said, ' ' by way of estoppel, to prevent cir- cuity of action, for he could maintain no action on that covenant. Nor could it so operate in any other mode, \mless there had been found some allegation in the deed, by which the releasor had asserted some matter to be true, which he must necessarily contradict, and deny to have been true, if he would claim to be the owner of the land. In such case he would have been estopped, because the law will not permit one who has in such a solemn § 253.] BY WAT OF ESTOPPEL. [CHAP. XI. brances ; 1 but this construction has not been generally adopted, it being usually considered as synonymous with the covenant of warranty. 2 Whether the statutory covenants implied from the words "grant, bargain, and sell" will operate as an estoppel does not seem to be consistently settled. In Illinois, where those words are declared to be express covenants for seisin, against incuni- manner admitted a matter to be true, to allege it to be false. 'This,' says Kent, ' is the reason and foundation of the doc- trine of estoppels.' 4 Kent's Comm. 261, note d, where he also says, ' A release or other deed, when the releasor or grantor lias no right at the time, passes nothing, and will not carry a title subsequently ac- quired, unless it contains a clause of war- ranty ; and then it operates by way of estoppel and not otherwise.' The cove- nant of non-claim asserts nothing respect- ing the past or the present. It is only an engagement respecting future conduct." It is difficult, however, to imagine how a more solemn assertion could have been made than was contained in the covenant referred to, which was, "so that neither I, the said Jellison, nor my heirs, or any other person claiming from or under me or them, or in the name, right, and stead of me or them, shall, or will by any way or means, have, claim, or demand any right or title to the aforesaid premises or to any part or parcel thereof forever." The de- cision of the case was perfectly correct upon the facts, as under the registry acts Jellison's grantee in 1833 was not bound to search the record for conveyances by him prior to 1829, when Dyer had con- veyed to him ; and the application of the doctrine of estoppel would have been op- posed to the theory of these statutes. At the same time, it is difficult to support the authority of the case upon the princi- ples so well settled in New England ; and it even became necessary to overrule some prior decisions in the same State with re- spect to the covenant of non-claim which had been there recognized as law for nearly twenty years, and had been elsewhere ap- proved. Wells, J., in his dissenting opin- ion (published in 30 Me. 539), adhered however to the law as adopted generally in the Northern States, and was of opinion that the plaintiff was entitled to recover. In the subsequent case of Curtis v. Curtis, 40 Me. 24, the facts were, however, much the same as those in Trull v. Eastman, 3 Met. 121. One of several sons released in his father's lifetime all his present and future claim in his estate, with a covenant that neither he nor any one through him should ever claim any right to the same, and it was held that this precluded him from bringing proceedings for partition after his father's death. In the later case of Loomis v. Pingree, 43 Me. 314, it was said that "the decision in Pike v. Galvin having been made more than nine years, whatever may be said on the one side or the other, the interest and peace of the community require that we should abide by it." It is somewhat singular that in Pike v. Galvin neither the counsel nor the court should have noticed the decision in Jackson v. Bradford, 4 Wend. (N. Y.) 622, where the Supreme Court of New York had, in order to avoid an embarrassing re- sult necessarily following from the appli- cation of the doctrine of estoppel as held in the class of cases just cited, been also obliged to make the same decision as was pronounced in Pike v. Galvin. An ex- pectant heir conveyed property with a covenant of non-claim, and afterwards the estate which he had purported to convey devolved upon him and was levied upon and sold by a judgment creditor, and it was held that the estate passed to the sheriff's vendee, and not, by estoppel, to the prior grantee, as the covenant was not one on which an action would lie. 1 Sweetser v. Lowell, 33 Me. 452; Par- tridge v. Patten, id. 483. 2 Trull v. Eastman, 3 Met. (Mass.) 121; Miller v. Ewing, 6 Cush. (Mass. ) 34 ; and see supra, p. 150. 25 385 § 253.] OPERATION OP COVENANTS FOR TITLE [CHAP. XL brances, and for quiet enjoyment, 1 they are held to pass an after- acquired title ; 2 but in Missouri, where they are express covenants for seisin, against incumbrances, and for further assurance, 3 it has been said that " these covenants do not operate as the ancient common law warranty to transmit a subsequently acquired title to the covenantee." 4 And the effect of estoppel has been given to other covenants than the technical covenants for title. Thus in Illinois, a cove- nant " that if at any time hereafter I shall acquire any further or additional title to the said lot of land, the same shall inure to [the grantees] in proportion to the interests hereby conveyed," was held to pass the after-acquired title as against a subsequent purchaser ; 5 and in Alabama, where an heir at law who was sole devisee under his father's will covenanted with his co-heirs that the property should be distributed as though his father had died intestate, it was held that not only was he estopped from claim- ing the premises, but, by force of the covenant, the land at once passed to the other heirs. 6 1 Rev. Stats., 1845, § 11, p. 104 ; Gen. Stats., 1860, p. 85 ; Pub. Stats., 1883, p. 280. * D'Wolf v. Haydn, 24 111. 525 ; King v. Gilson, 32 id. 352 ; Pratt v. Pratt, 96 id. 184. 3 Rev. Stats., 1879, p. 110, § 675, in- fra, Ch. XII. 4 Chauvin v. Wagner, 18 Mo. 531 ; Gibson v. Chouteau, 39 id. 566 ; Butcher v. Rogers, 60 id. 138. No reasons are given for this course of decision in either of these States, except that such a deed is in effect a mere quitclaim deed. s Phelps v. Kellogg, 15 111. 132. "This," said Treat, C. J., in delivering the opinion, "is an express covenant that any title which the grantor shall afterwards receive shall inure to and be vested in the gran- tees. It is a covenant running with the land and binding on all persons deriving title through the grantor with notice of the deed. It concludes them from setting up title against the grantees and their as- signs. . . . This deed was recorded long before the executrix of the grantor made the subsequent conveyance to Cole. The latter and those claiming under him had, therefore, full notice of the deed and the 386 covenant in question, and are bound there- by." It will be observed that the court seems to have assumed that the subse- quent purchaser was affected with notice of the first deed from the fact of its being on record prior to the conveyance to him. It is, however, conceived to be the law that a purchaser is not bound to search for conveyances by his grantor be- fore the commenceiuent of the latter's title, and hence such a prior recorded deed, not being in the line of search, would not be notice. There appears, however, in this case to have been proof of possession by the plaintiffs, which might deprive the subsequent grantee of the protection afforded by the recording acts, by putting him on inquiry as to the title under which such possession was held ; such inquiry would disclose the equity of the first grantee to a conveyance of his grantor's after-acquired title, and take the case out of the recording acts ; infra, § 260. 6 Bean v. Welsh, 17 Ala. 771. "The legal effect of this agreement," said the court, "was to vest in the heirs of the testator the same title they would have § 254.] BY WAY OF ESTOPPEL. [CHAP. XI. § 254. From this review of these numerous cases it will appear that they do not consistently agree either as to the grounds upon which they rest the estoppel, 1 or as to the covenants which will, or will not, produce the effect of estoppel. 2 And when the appli- cation of the doctrine itself is or may be in many cases fraught with such important practical consequences, we are bound to trace the doctrine to its source, for it is not less true in law than taken had he died intestate as to the lands devised to the devisee, for we think the principle is well settled that an estoppel will not only bar a right or title, but will pass one to him in whose favor the es- toppel works." So in Wright v. Slramway, 1 Biss. (C. C. U. S.) 23. The defendants were, in 1850, in possession of unsurveyed pub- lic lands in Wisconsin, to which they had an inchoate right of pre-emption. To se- cure a debt due by them to the plaintiffs they executed a deed by which, in consid- eration of one dollar, they conveyed to the plaintiffs their interest in the lands, with a covenant that they would purchase them of the United States whenever the same should be surveyed and exposed for sale, and would mortgage them to the plaintiffs to secure so much of the debt as should then be unpaid. The deed was duly recorded. In 1852, the defendants purchased the lands from the United States and paid for them with money fur- nished by a third person, to whom they transferred the legal title as security. The priority of his lien was not in controversy. The plaintiffs, in 1853, filed a bill against the defendants, joining with them the holder of the legal title, to compel the exe- cution of a mortgage or the sale of the land to pay the original debt which was still due. Upon entering a decree in aceoi'danee with the prayer of the bill, Miller, J., said: " The deed [to the plaintiffs] does not purport to be a mortgage of the fee, but nevertheless it may be valid. In equity, whatever property, real or personal, is capable of an absolute sale, may be the subject of a mortgage. . . . Courts of equi- ty support assignments of, or contracts pledging, property or contingent inter- ests therein, and also things which have no present, actual, potential existence, but rest in mere possibility. Mitchell v. Wins- low, 2 Story, 630. If a mortgage be made of an estate to which the mortgagor has not a good title, and then he who has the real title conveys to the mortgagor, or his representatives, a good title, the mortga- gee will be entitled in equity to the ben- efit of it, for it will be considered as a graft into the old stock, and as arising in consideration of the former title. Sea- bourne v. Powell, 2 Vera. 10 ; Best v. Meddlehurst, 3 Atkyns, 376 ; Goodright v. Meade, 3 Burrow, 1703 ; McGinnis v. Noble, 7 W. & S. 454. ... By [the defendants'] express written agreement to make a mortgage, a lien is created on the land, in equity, on the principle that what has been agreed to be performed shall be performed. Houkey v. Vernon, 2 Cox, 12 ; 3 Powell on Mortgages, 1049, a, b. An equitable mortgage springs from an agreement, express or implied, that there shall be a lien. The agreement in this case, to purchase the land and then to mortgage it, is express, and is a specific lien, which will be enforced in equity. " Here, however, it will be observed that the doctrine was expressly based upon the equity to a conveyance ; not, that the title actually passed. 1 That is to say, many cases hold that the doctrine rests purely on the ground of avoiding circuity of action, while there are as we have seen, at least four classes of cases which enforce the estoppel where there is no right of action at all, and hence, of course, no inducement to avoid circuity of action. 2 That is, many of the cases deem that they follow the common law as to war- ranty when they apply the doctrine solely to a covenant of warranty, while, recently, nearly as large a class apply it in the case of the other covenants fur title. 387 § 254.] OPERATION OP COVENANTS FOR TITLE [CHAP. XL in logic that if we start with unsound premises, and reason logi- cally, we must arrive at unsound conclusions, and although from its nature law is not and can never be one of the exact sciences, yet its greatest triumph — that which has earned for it the title of " the perfection of reason " — has been that its principles, logi- cally applied, have never for any enduring space of time been suffered to work injustice in the daily affairs of life. As to the source of the doctrine, there is little difficulty in tra- cing it, for most of the earlier and some, of the later authorities agree that they base it upon one of Littleton's sections and Coke's commentary upon it. The passages are these. In section 446 of Littleton's treatise, he says, " No right passeth by a release but the right which the releasor hath at the time of the release made. For if there be father and son, and the father be disseised, and the son (living his father) releaseth by his deed to the dis- seisor all the right which he hath or may have in the same tene- ments, without clause of warranty, &c, and after the father dieth, &c, the son may lawfully enter upon the possession of the disseisor, for that he had no right in the land in his father's life, but the right descended to him after the release made by the death of his father." To which Coke adds, " If there be a war- ranty annexed to the release, then the son shall be barred. For albeit the release cannot bar the right for the cause aforesaid, yet the warranty may rebut, and bar him and his heirs of a future right which was not in him at that time ; and the reason (which in all cases is to be sought out) wherefore a warranty being a covenant real should bar a future right, is for avoiding of cir- cuity of action, 1 (which is not favored in law,) as he that made the warranty should recover the land against the terre-tenant, and he by force of the warranty to have as much in value against the same person." 2 It will be observed that in the above passages the word " estop- pel " is not employed, 3 nor does the doctrine seem to be thought 1 As to this, the five classes of cases privies in law, as the lords by escheat, already referred to (supra, §251) cannot tenant by the curtesy, tenant in dower, the claim to rest upon Coke as authority. incumbent of a benefice, and others that 2 Co. Litt. 265 a. come under by act in law or in the post, 3 The following sentence, from Co. Litt. shall be bound by and take advantage of 352 a, is often quoted in connection with estoppels." But no authority can be cited them: "Privies in blood, as the heir, to show that a warranty, unaccompanied privies in estate, as the feoffee, lessee, etc., by a feoffment or fine, made by one who 388 § 254.] BY WAY OP ESTOPPEL. [CHAP. XI. in any way connected with the law of estoppel. The warranty was to operate by way of rebutter to avoid circuity of action, an effect far different from that of estoppel, for although Coke else- where speaks of rebutter as being " a kind of estoppel," 1 yet as has been said, this has reference merely to the ordinary and per- sonal effect of an estoppel, and not to any higher effect of actu- ally passing an estate. For if the law had been otherwise — if the interpretation which has been put upon the language of Littleton and his commentator were the true one — the whole system of feudal conveyances would have been deranged, and all distinctions between the common law modes of assurance would have been conveniently destroyed by the simple addition of a war- ranty. 2 These passages in Littleton and Coke may perhaps be better understood by reference to one of the doctrines upon which war- ranty was based. It was one of its attributes that it required an estate to support it. 3 Such an estate was created by a feoffment, a fine, or a common recovery, the solemnity of which was such as to create and pass an estate, whether rightfully or wrongfully, 4 and therefore, as a penalty, if a tenant for life enfeoffed another in fee, he forfeited his life estate. To a feoffment, livery of seisin was necessary, but this livery could not be given unless the feoffor had the actual possession ; and when this was the case, the delivery of the possession (of which the charter of feoffment was, in later times and when deeds had become common, merely the authenti- cation) was an act of such notoriety as to pass an actual estate to the feoffee — an estate of fee simple if the feoffor so willed it. 5 had no estate, to another who had no pre- an estate would have been as anomalous vious estate, possessed this quality of an as an estate in remainder without a partic- estoppel. ular estate to support it. i Co. Litt. 352 b. * Litt. §§ 599, 611 ; Co. Litt. 387 a, 2 "If title could actually pass when 367 a. subsequently acquired," says Mr. Bigelow 5 "The formal delivery of the seisin or ( Estoppel, 4th ed., 431 ), " by the mere use feudal possession which always took place of a warranty or other covenant, it would in a feoffment, rendered it till recently an often be in the power of an heir to defeat assurance of great power ; so that if a the claims of the creditors of the ancestor, person should have made a feoffment to A conveyance with warranty made before another of an estate in fee simple, or of the ancestor's death would, if not proved any other estate not warranted by his own covinous, bring about this result. " interest in the lands, such a feoffment 3 Seymor's case, 10 Rep. 96 ; Piatt v. would have operated by wrong, as it is Oliver, 3 McLean, (C. C. U. S.) 39 ; Ker- said, and would have conferred upon the cheval v. Triplett, 1 A. K. Marsh. (Ky.) feoffee the whole estate limited by the 495. In fact, a warranty unsupported by feoffment, along with the seisin actually oby § 254.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. Such an estate could support a warranty. The same doctrine applied to a fine, which was of equal solemnity and notoriety as a feoffment and indeed always presupposed one, and which, moreover, divested all remainders and interests whatever except those limited after estates tail, 1 while as to common recoveries, their effect depended upon the fiction that he who by reason thereof lost his estate was recompensed by a recovery in value under the voucher to warranty. 2 When, therefore, one attempted to convey to a stranger land to which neither of them had a title, it was necessary to obtain the possession, and when this was done, although the feudal law and for feudal reasons declared that his feoffment should pass an estate, yet it was an estate subject to be divested by the lawful owner, and which was not assisted by the warranty, either by way of estoppel or otherwise ; nor in fact had the warranty any operation whatever when the possession was wrongfully obtained, it being an inflexible rule that a warranty commencing by disseisin, and made for the purpose of giving effect to that disseisin, was void. 3 delivered. Thus, if a tenant for his own life should have made a feoffment of the lands for an estate in fee simple, the feof- fee would not merely have acquired an estate for the life of the feoffor, but would have become seised of an estate in fee sim- ple by wrong." Williams on Real Prop. (9th ed.) 1 The effect of a fine and the reason for it are clearly stated by Mr. Bigelow, (Estoppel, 4th ed., 409,) and he concludes by saying with entire accuracy : "We find no suggestion in the. books that this effect of the fine in passing future estates arose otherwise than by virtue of the convey- ance itself ; and as the fine most commonly in use (that first mentioned) was simply a feoffment of record, it is but reasonable to presume that its operation by way of estoppel was the same as that of a feoff- ment. It was an acknowledgment in court on the part of the tenant that he had made livery of seisin to the cognizee ; that is, that he had had possession of a freehold estate and had delivered it to the cognizee ; and he and his privies were precluded by the record from disputing the fact." 2 Taltarum's case, Year Book 12 Edw. 390 IV. 19 ; Tudor's Lead. Cas. 605 (2d ed.) ; Pigott on Recoveries, 9 ; and see supra, § 9 et seq. 3 "Warranty that commences by dis- seisin," says Littleton, § 698, "is in this maimer ; as where there is father and son, and the son purchaseth land, etc. and let- teth the same land to his father for term of years, and the father by his deed thereof infeoffeth another in fee, and binds him and his heirs to warranty, and the father dies, whereby the warranty descends to the son, this warranty shall not bar the son ; for notwithstanding this warranty the son may well enter into the land, or have an assize against the alienee if he will ; be- cause the warranty commenced by dis- seisin : for when the father, which had but an estate for a term of years, made a feoff- ment in fee, this was a disseisin to the son of the freehold which then was in the son. In the same manner it is, if the son letteth to the father the land to hold at will, and after the father maketh a feoffment with warranty, etc. And as it is said of the father, so it may be said of every other ancestor, etc. In the same manner is it, if tenant by elegit, tenant by statute mer- chant, or tenant by statute staple, make § 254.] BY WAY OP ESTOPPEL. [CHAP. XI. Now neither a grant nor a release possessed the high qualities of a feoffment, a fine, or a common recovery. 1 A grant, as ap- plied to corporeal hereditaments, passed estates in reversion or remainder, 2 while a release operated to relinquish an interest or claim to one already in possession. Neither of them possessed the power to create and transfer an actual estate where none pre- viously existed. Nothing was better settled than that a warranty could not enlarge an estate, 3 and consequently it could not make valid that which would otherwise be invalid. Hence it followed that a grant, or a release with warranty, of a defeasible estate or no estate at all, to one having no previous interest therein, was as ineffectual as if it had contained no warranty. Had this been otherwise — had the effect of a warranty been to convey to a grantee or releasee any subsequently acquired estate — there would have been an end of the familiar common law rule that a future estate could not be barred by a mere deed to a stranger. If, however, the grantee or releasee had a previous interest or estate in the land, the warranty would knit itself to that, and having then something to support it, would rebut the warrantor and his heirs in the same manner as if the supporting estate had been created by a feoffment or fine. a feoffment in fee with warranty, this shall Rich. Eq. (S. C.) 448 ; Lamb v. "Wakefield, not bar the heir which ought to have the 1 Sawyer, (C. C. U. S.) 251. And hence it land, because such warranties commence has been held that a conveyance which for by disseisin." See also Co. Litt. 366 6, want of the word "heirs" passes only a et seq. life estate, can neither be enlarged into a 1 See the well-known argument of Mr. fee by the presence of a covenant of war- Knowler in Doe v. Whitehead, 2 Burr. 704. ranty to the grantee and his heirs, nor Also Bigelow on Estoppel (4th ed.), 414. will such a covenant operate upon the 2 Touchstone, 227, 228 ; 2 Prest. Conv. latter by way of rebutter. Register v. 209. Rowell, 3 Jones (N. C.) 312. In Shaw 3 Year Book, 44 Ass. 35; Co. Litt. 385 b; v. Galbraith, 7 Pa. Ill, this latter point Seymor's Case, 10 Rep. 97. Nor, con- was, however, differently considered. See sequently, can the modern covenants for infra, p. 410, n. 1. title. Patterson v. Moore, 15 Ark. 225 ; In Leech v. Schweder, L. R. 9 Ch. App. Hurd v. dishing, 7 Pick. (Mass.) 169 ; 463, it was held that in a lease for years a Corbin v. Healy, 20 id. 514 ; Kendall v. grant of "all lights, easements, advan- Brown, 7 Gray, (Mass.) 212 ; Rector v. tages, and appurtenances whatsoever be- Waugh, 17 Mo. 27; Adams v. Ross, 1 longing or in any wise appertaining " to the Vroom, (N. J.) 509 (reversing s. c. 4 premises, was not so enlarged by an ordi- Dutch. 160) ; Den v. Forsythe, 3 Dev. nary covenant for quiet enjoyment as to (N. C.) 26 ; Den v. Young, 3 Ired. (N. C.) entitle the covenantee to an injunction to 379 ; Stell v. Barham, 87 N. C. 62 ; Phil- restrain an obstruction where the damage lips v. Thompson, 73 id. 543 ; Waugh v. was not sufficient to enable him to main- Miller, 75 id. 127 ; Wright v. Herron, 5 tain an action at law. 391 § 254.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. By the application of these settled doctrines to the case put by Littleton, it will be seen that the release would of itself have had no operation whatever, and he expressly says so. The son having no estate, the release of course passed none. The reason why, in the case put by Coke, the warranty was effective was that the releasee had an estate — viz. an estate by his disseisin of the father — to which the warranty could attach itself, and that the father's estate had been reduced to a right of entry before the release with warranty was made. Had this not been so — had the father's estate still continued in him — the warranty would have been utterly void. Of the ten requisites necessary to give effect to a warranty, two were here essentially applicable ; first, that the estate to be barred should have been divested and put to a right of entry before or when the warranty was made ; and secondly, that the estate of the warrantee should have had a substantial existence before or at that time. 1 Both of these requisites existed in the case. For first, the estate of the father had been divested and put to a right of entry before the war- ranty made by the son ; and secondly, the warrantee had a sub- stantial interest or estate, though taking effect by disseisin only, at the time he received the warranty. If the releasee with warranty had been a stranger, of course he would have had no previous estate to which the warranty could be attached, 1 " To every good warranty in deed for a warranty will not bar any estate of that must bar and bind, these things are freehold or inheritance in esse, in posses- requisite. 1. That the person that doth sion, reversion, or remainder, that is not warrant be a person able. ... 2. That the displaced and put to a right before or at warranty be made by deed. ... 3. That the time of the warranty made, though there be some estate to which the war- after [and] at the time of the descent of ranty is annexed that may support it. . . . the warranty the estate of freehold or in- 4. That the estate to which the warranty heritance be displaced and divested. . . . is annexed be such an estate as is able to 8. That the warranty doth take effect in support it. ... 5. That the warranty de- [the] lifetime of the ancestor, and that he scend upon him that is heir of the whole be bound by it, for the heir shall never blood by the common law to him that be bound by an express warranty but made the warranty. ... 6. That he that where the ancestor was bound by the same is heir do continue to be so, and that warranty. ... 9. That the heir claim in neither the descent of the title nor the the same right that the ancestor doth. . . . warranty be interrupted. ... 7. That 10. That the heir that is to be barred by the estate of freehold that is to be barred the warranty be of full age at the time of be put to a right [of entry or action] before the fall of the warranty." Touchstone, or at the time of the warranty made, and 186 ; Seymor's case, 10 Rep. 95 b ; Tu- that he to whom the warranty doth de- dor's Lead. Cas. on Real Property (3d scend have then but a right to the land, ed.), 706. 392 § 254.] BY WAY OP ESTOPPEL. [CHAP. XI. and as the release only passed what estate the releasor had, (which was no estate at all, for his father, the lawful owner, was still living, though disseised,) and did not, like a feoffment, create an actual estate, the warranty would have been wholly inoperative. 1 If the mere addition of a warranty could have produced the effect supposed to have been attributed to it, if estoppel and warranty had been as identical as they are supposed to be, and " if the interest when it accrued fed the warranty," all distinction, as has been already said, between the common law modes of assurance would have been conveniently overcome by the simple addition of a warranty ; future estates could have been transferred to a stranger without the notoriety of a feoff- ment, a fine, or a recovery, 2 and the introduction of conveyances taking effect by virtue of the statute of Uses would have been needless. 3 From the time of the Conquest, and long before, down to the time of Henry the Eighth and later, it was the policy, or at least 1 This line of argument was adopted by the defendant's counsel in the case of Hector v. Waugh, 17 Mo. 13, as to which the court said, ' ' The strong views present- ed by the counsel for the defendant are supported by a great weight of authority, but the reasoning on which they are found- ed has been insensibly undermined, and principles which stood out in bold relief when the feudal policy was the idol of the law have gradually lost their force." The court, however, decided the case against the estoppel on another ground ; see supra, p. 381, n. 2. 2 So, to render effectual a covenant to stand seised to uses, it was necessary that the covenantor should have a vested estate, and therefore a covenant to stand seised of land which the covenantor should after- wards purchase was void. 2 Sanders on Uses, 83 ; Preston's note to the Touch- stone, p. 165. " A man cannot by a cov- enant raise a use out of land which he hath not." Yelverton v. Yelverton, Cro. Eliz. 401 ; s. c. Moore, 342. Although at the present day a covenant to charge or dis- pose of lands hereafter to be acquired will be enforced in equity. Wright v. Wright, 1 Ves. 409 ; Metcalfe v. Archbishop of York, 1 Myl. & Cr. 547 ; Lyde v. Mynn, 1 Myl. & K. 683 ; s. c. 4 Simons, 505 ; Wellesley v. Wellesley, 4 Myl. & Cr. 579. If it be argued in favor of the doctrine of estoppel as held in many parts of this country, that the effect of covenants for title is to raise a use in favor of the pur- chaser, which the statute would at once execute, the answer is that it was requisite to the execution of a use under the statute that there should be an estate or seisin out of which the use ivas to arise, and therefore contingent uses, during the suspension of the contingency, could not be executed by the statute. 1 Sanders on Uses, 231. 3 A bargain and sale with warranty by a tenant for life, would, according to this doctrine, have produced a discontinuance ; — a result not properly attributable to such a mode of conveyance as a general rule. Gilbert's Tenures, 119 ; Seymor's case, 10 Rep. 96 ; McKee v. Pfout, 3 Dall. (Pa.) 486; Prest. Law Tracts, Tract 2. In Jacocks v. Gilliam, 3 Murph. (N. C.) 47, s. c. 4 Hawks, (N. C.) 311, it was held that a bargain and sale with warranty by a tenant in tail did not operate as a discontinuance, and in Pollock v. Speidel, 17 Ohio St. 439, it was decided that such conveyance would not estop the subsequent donees in tail. Supra, p. 146, n. 1. 393 § 255.] OPERATION OP COVENANTS FOR TITLE [CHAP. XI. the theory, of the law that notoriety should attend the transfer of land, and all the legal ingenuity and machinery which, dur- ing those centuries, were called into being to contravene and thwart this policy or theory were largely useless if the view taken by some of the American authorities be the correct one, for in many instances warranty would have done the work more simply. It is as fair to reason from what legislatures did not do, as from what they did, and when we find a series of statutes during several centuries limiting the effect of warranty in other connections, and not touching this connection at all, though vital to the law of transfer of real estate, it is not unreasonable to infer that no one ever thought that the connection existed. Certain it is that from the earliest to the latest times no one in England ever put such a construction upon the language of Littleton and Coke. 1 § 255. Of course it is not meant to deny that the presence of a covenant for title may not operate as a personal rebutter, which, as against the grantor and his privies, will prevent him or them from claiming the land if and when he or they should subsequently acquire title to it. But this is only by reason of the covenant being considered evidence of what was the contract between the parties ; in other words, what was the intention as appearing on the face of the deed ; and as to this, it is, or should be, immaterial whether the intention is evidenced by the cove- nants for title, or by recital, averment, or the like. This was so clearly stated by the Supreme Court of the United States in the year 1850, in Van Rensselaer v. Kearney, 2 as to preclude argument, 1 "The magnitude of the innovation estate which did not pass by the opera- which this would have occasioned may be tion of the deed, apart from the warran- estimated by reflecting that during the ty." Note to Duchess of Kingston's case, period when warranties were most em- 2 Smith's Leading Cases. ployed the law did not permit estates of 2 11 How. (S. C. U. S.) 297. In 1795, freehold to be conveyed by deed [by which Van Rensselaer having but a life estate the learned commentator must be under- in certain lands, conveyed them in fee stood to mean by deed alone, without to Penfield by deed of bargain and sale actual livery of seisin], and that when with a covenant against incumbrances, deeds of bargain and sale were subsequent- In 1813, Van Rensselaer acquired the fee ly introduced by the statute of Uses, it in these lands, and on his death in 1S28 it was thought necessary to provide for their descended to the complainants as his heirs publicity by the statute of enrolments, at law, who brought this suit in equity It is evident, therefore, that no one had against the parties holding under Pen- then conceived that a warranty in a deed field's title, for an account of the rents could have the. effect of transferring an and profits and a surrender of the title 394 § 255.] BY WAY OF ESTOPPEL. [CHAP. XI. and to the view there expressed consistent assent has been and papers. The complainants insisted that the conveyance was by a quitclaim deed, with no covenant but that against incum- brances, and that this not only could not be regarded as warranting the title, but also, being an express covenant, took away all implied ones. The appellant contended on the other hand that this covenant, from its peculiar phraseology and structure, was intended as something more than a mere covenant against in- cumbrances — as, in fact, a covenant for the goodness of the title which the deed purported to convey. But the court held — and that " independently of any cove- nants of title, in the technical sense of the term, in the deed" — that the latter con- tained such proof of the intention to con- vey a fee as to estop the complainants from asserting their title. " The general principle is admitted," said Mr. Justice Nelson, who delivered the opinion, "that a grantor conveying by deed of bargain and sale, by way of release or quitclaim of all his right and title to a tract of land, if made in good faith and without any fraudulent representations, is not respon- sible for the goodness of the title beyond the covenants in his deed. A deed of this character purports to convey, and is un- derstood to convey, nothing more than the interest or estate of which the grantor is seised or possessed at the time ; and does not operate to pass or bind an interest not then in existence. The bargain between the parties proceeds upon this view ; and the consideration is regulated in conform- ity witli it. If otherwise, and the vendee has contracted for a particular estate, or for an estate in fee, he must take the pre- caution to secure himself by the proper covenants of title. But this principle is applicable to a deed of bargain and sale by release or quitclaim, in the strict and proper sense of that species of conveyance. And therefore, if the deed bears on its face evidence that the grantors intended to convey, and the grantee expected to be- come invested with an estate of a particular description or quality, and that the bar- gain had proceeded upon that footing be- tween the parties, then, although it may not contain any covenants of title in the technical sense of the term, still the legal operation and effect of the instrument will be as binding upon the grantor and those claiming under him, in respect to the estate thus described, as if a formal covenant to that effect had been inserted ; at least so far as to estop them from ever afterwards denying that he was seised of the particu- lar estate at the time of the conveyance." And after referring to the authorities of Doe d. Marchant v. Errington, 8 Scott, 210 ; Bowman v. Taylor, 2 Ad. & Ellis, 278 ; Fairbanks v. Williamson, 7 Greenl. (Me. ) 96 ; and Right v. Bucknell, 2 Barn. & Ad. 281 (supra, p. 362, n. 2), the opinion thus continues : ' ' The principle deducible from these authorities seems to be, that whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seised or possessed of a particu- lar estate in the premises, and which estate the deed purports to convey, or, what is the same thing, if the seisin or possession of a particular estate is affirmed in the deed, either in express terms or by neces- sary implication, the grantor and all per- sons in privity with him shall be estopped from ever afterwards denying that he was so seised and possessed at the time he made the conveyance. The estoppel works upon the estate, and binds an after-acquired title as between parties and privies. The reason is that the estate thus affirmed to be in the party at the time of the conveyance must necessarily have influenced the grantee in making the purchase, and hence the gran- tor and those in privity with him, in good faith and fair dealing, should be forever thereafter precluded from gainsaying it. The doctrine is founded, when properly applied, upon the highest principles of morality, and recommends itself to the common sense and justice of every one. And although it debars the truth in the particular case, and therefore is not un- frequently characterized as odious and not to be favored, still it should be remem- bered that it debars only in the case where its utterance would convict the party of a 395 § 255.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. must be given. 1 This doctrine is, however, very different from that which, likening the modern covenants for title to the ancient warranty, and giving to the latter a supposed effect which it never had, holds that the after-acquired estate passes directly by mere operation of law, overriding, as it were, all subsequent estates or interests, no matter how acquired. previous falsehood, would be the denial of a previous affirmation upon the faith of which persons had dealt, and pledged their credit or expended their money. It is a doctrine, therefore, when properly un- derstood and applied, that concludes the truth in order to prevent fraud and false- hood, and imposes silence on a party only when in conscience and honesty he should not be allowed to speak." 1 This decision was approved by the same court in French v. Spencer, 21 How. (S. C. U. S.) 240 ; by the U. S. Circuit Court in McGill v. Jordan, 41 Leg. Intell. (Pa.) 420 ; as also in Gibson v. Chou- teau, 39 Mo. 536, 567 ; Clark v. Baker, 14 Cal. 629 ; and Calder v. Chapman, 52 Pa. 359, infra, p. 409. And in other cases the same view of the law has been prac- tically applied. Thus in Nixon v. Carco, 28 Miss. 426, Carco, being in possession of lots to which he had no title, conveyed them to the grantors of the complainants by an instrument not under seal and con- taining no covenants whatever. Subse- quently a patent was granted to him for these lands, and the complainants filed a bill against his heirs to enjoin the latter from setting up the title which accrued by the patent, and it was held that the com- plainants were entitled to the relief prayed for. "It is said that the instrument of sale executed by Carco," said the court, " is not binding on his heirs, because it is not executory and contains no covenant of warranty. If the instrument purported to be, or was in fact, a mere quitclaim of an interest in the land not then in esse, the authorities cited would be pertinent to show that the heirs were not estopped by the act. But it is admitted to have been intended as a valid and sufficient sale, that the right intended to be sold was a sub- sisting equitable one, and that the sale was not void for illegality. It purports to 396 have been made for a valuable considera- tion, and to be a conveyance of his right ; and it is manifest that the present claim of his heirs is utterly inconsistent with the right intended to be conveyed by him. If it were a formal bargain and sale, there can be no pretence but that it would estop the heirs ; and it is conceded that it was in- tended as such. It must therefore be con- sidered as having that effect in equity, and fall within the general rule that the heir cannot set up a subsequently acquired title against the deed of bargain and sale of his ancestor." So in Potter v. Potter, 1 R. I. 43, a widow entitled to dower in the estate of her deceased husband married a second time. The real estate of the first husband was sold by his administrator for the pay- ment of his debts, she not joining in the deed. The title afterwards came to the second husband, who afterwards conveyed the same with a covenant of warranty. In an action of dower brought by the hus- band and wife against the purchaser from the former, it was held that they were estopped by his covenants from claiming dower during the continuance of their marriage. It was urged that this was not a covenant between the same par- ties — that the wife had made no cove- nants with her husband which estopped her. " That is true," said the court, "but the husband by the marriage gains a right to the possession and use of the estate ; such an interest and title during the mar- riage as enables him to control it. He has a freehold interest in her dower, deter- minable upon the dissolution of the mar- riage. There is no equity in the claim of the wife, for she has participated in the consideration received by her husband for the estate." See also Long Island R. R. v. Conklin, 32 Barb. S. C. (N. Y.) 381, 388 ; Kilmer v. Wilson, 49 id. 86. § 258.] BY WAT OP ESTOPPEL. [CHAP. XL § 256. Now there are thus two grounds upon which most if not all of the cases referred to can rest with entire accuracy. One is that the covenants operate as a personal rebutter merely, and for the purpose of avoiding circuity of action, prevent the grantor or his heirs from setting up the after-acquired estate, which equity would of course compel him or them to convey to the prior grantee. 1 The other is that the effect of the covenants is as if a particular recital or averment had been introduced, and that the grantor was therefore estopped by his deed from denying its efficacy. 2 But neither of these grounds would produce the effect of actually transferring the after-acquired estate. § 257. The practical difference between these two results — viz. between the covenants for title operating as a rebutter by placing the grantor and his heirs under a disability to claim the after-acquired estate, and their operating as an actual transfer of that estate itself — is felt in two important connections : first, as between the purchaser and his heirs and assignees on the one side, and the grantor and his heirs on the other ; and secondly, and with graver importance, as between the purchaser and a subsequent purchaser from the same grantor. § 258. First, then, as between the purchaser and the grantor and his heirs. It might at first sight appear to make little difference whether, as between these parties, the after-acquired estate actually passes to the purchaser by direct operation of law, or whether the latter is secured in his possession from the fact that the grantor and 1 Lewis v. Baird, 3 McLean, (C. C. be conveyed to Beacham ; secondly, that IT. S.) 80 ; Henderson v. Overton, 2 Yerg. Beacham had paid the purchase money. (Term.) 397 ; Chew v. Barnet, 11 Serg. & Such being the intention, the consequence Rawle, (Pa.) 389 ; Reese v. Smith, 12 Mo. would be that if Nims should afterwards 351 ; Steiner v. Baughman, 12 Pa. 108 ; acquire the title he would be bound to Brown v. Manter, 1 Foster, (N. H.) 528 ; convey it to Beacham, as much so as if Pierce v. Milwaukee R. R., 24 Wis. 554 ; the contract were one standing in the form see Butler v. Seward, 10 Allen, (Mass.) of a bond for title. Perhaps this would 467; see also infra, §§ 262, 265. be the consequence even without the war- 2 Thus in Goodson v. Beacham, 24 Ga. ranty ; Taylor v. Debar, 2 Ch. Cas. 212 ; 150, it was said: "Nims, when he made Wright v. Wright, 1 Ves. 409 ; Noel v. the deed to Beacham had no title, but his Bewley, 3 Sim. 403 ; Smith v. Baker, 1 deed was an attempt to convey the fee, and Younge & Coll. Ch. 223 ; Jones v. Kear- it was a deed with a warranty. This shows ney, 1 Dr. & War. 159." And see infra, first, that it was the intention that the § 262 et seq. land, the whole interest in the land, should 397 258.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. his heirs are not allowed to claim it ; whether the purchaser has the valid title actually and finally vested in him, or whether the only person who has the better title is under a disability which prevents him from setting it up. 1 The practical difference is, however, this : where by virtue of the estoppel supposed to be created by the covenants the after- acquired estate actually passes to and vests in the purchaser by mere operation of law, it must necessarily relate back and take effect as if it had originally passed by the conveyance to him ; and hence in an action to recover damages for a breach of the covenant of warranty, a verdict must be ordered for the defendant ; or if the action were for a breach of the covenant for seisin, though there might be a technical breach, yet the plaintiff would be entitled to nominal damages only ; 2 and thus if the land had diminished in price, the purchaser would not have the option either to retain it, or to offer to reconvey it, and re- cover its consideration. Such a course of decision, as has been 1 In Buckingham v. Hanna, 2 Ohio St. 551, which was decided since these re- marks were first written, this distinction was noticed, and the application of the doctrine of estoppel, to the extent claimed by some of the New England cases, would have been unjust in the extreme and was properly limited by the court. The case is noticed at length in the fourth edition of this treatise, p. 419 ct seq. - Thus in Baxter v. Bradbury, 20 Me. 260, where the grantee being in possession brought an action "on the covenant for seisin in a deed of warranty," the court below having rejected evidence offered by the defendant to prove that after his con- veyance to the plaintiff the valid title had been conveyed to him, it was argued, in support of the admissibility of the evi- dence, that the defendant having after- wards acquired a perfect title to the land, it inured to the plaintiff by estoppel, and tli<- Supreme Court sustained this position, and held that the plaintiff, by taking a general covenant of warranty, not only assented to, but secured and made avail- able to himself, all the legal consequences resulting from that covenant, and that having before the commencement of the action acquired the seisin which it was the 398 object of both covenants to secure, he could be entitled only to nominal damages. So in Keese i>. Smith, 12 Mo. 344, justly pronounced by Mr. Bigelow (Estoppel, 4th ed., 426, n. 1) to be " a remarkable case," it was said, ' ' Where there is a covenant of seisin which is broken, and subsequently to the breach the covenantor acquires the title, if there be in the deed a covenant of general warranty, by virtue of which the covenantee will, by operation of law, be vested with the subsequently acquired title, the damages can be but nominal; " and the judgment at law upon the covenants was ac- tually enjoined. For the facts and opinion of the court in this case, see supra, p. 253, n. 2 ; McCarty v. Leggett, 3 Hill, (N. Y. ) 134, cited, supra, p. 252, n. 2 ; Cornell v. Jackson, 3 Cush. (Mass.) 506, cited supra, p. 335, n. 1; but see the more recent case of Blanchard v. Ellis, 1 Gray, (Mass.) 199, supra, p. 259, n. 3. So in King v. Gilson, 32 111. 348, King conveyed certain lots to which he had no title to Gilson, with covenants for seisin and of good right to convey, and after- wards by several mesne conveyances they became vested in Hillman, who, using Gilson's name, brought covenant against King. After suit brought and before trial, § 258.] BY WAY OP ESTOPPEL. [CHAP. XI. said in another part of this treatise, 1 obviously fastens upon the purchaser the subsequently acquired title nolens volens, depriving him of the option whether to accept it or to fall back upon the covenants ; in other words, it has virtually the same effect as an injunction restraining him from proceeding at law upon the covenants. 2 The injustice of such a result seems, however, sufficiently obvious, and in a case in New York it was held, with much force of argument, that equity would not under such circumstances interfere at the instance of the party bound by the covenant, 3 and the real owner of the lots conveyed them to King. In the court below, a verdict was rendered in favor of the plaintiff for the amount of the consideration money, but this was reversed on appeal, and it was held that as the title subsequently acquired by King immediately inured to the benefit of the plaintiff, the latter was entitled to nominal damages only. So in Knowles v. Kennedy, 82 Pa. 445, Knowles, having a life estate in land subject to dower, executed a deed, with full covenants except against the dower interest, purporting to convey the land in fee to Kennedy, who took possession. Afterward Knowles acquired the fee, and thereupon Kennedy tendered him a recon- veyance, demanding a return of the pur- chase money, which Knowles refused, and Kennedy brought an action on the cove- nant. The court below held that he could recover the purchase money with interest from the time he demanded its return. But the Supreme Court, reversing this judgment, adopted the ride in Baxter v. Bradbury, and limited the plaintiff's right of recovery to nominal damages and such further damages as the evidence showed him to have sustained. 1 See supra, § 179. 3 And such was actually the decision in Reese v. Smith, 12 Mo. 344, supra, p. 253, n. 2. s Tucker v. Clarke, 2 Sandf. Ch. (N. Y. ) 96. The purchaser having refused to re- ceive a valid title which his vendors ten- dered to him, together with the costs of an action which he had instituted for a breach of his covenants, the vendors filed a bill to compel him to accept this title, but it was dismissed by Sandford, V. C, who said: "The complainants do not ask the court to compel a specific performance of an open agreement. They seek to com- pel the defendant to give up his claims under a deed executed seven years before the bill was filed. The executed contract was that the complainants were seised of these lots, and, if they are not, that they should repay the consideration money. This is sought to be reconsidered and turned into a contract, by which, if it should ever turn out that they were not seised, they might either repay the con- sideration or procure a good title to be conveyed. It would have been a little more plausible if there were a semblance of mutuality about it, so that the defend- ants might have caused them to procure a good title on discovering the defect. But there is no pretence that the defendant had any such equity. The complainants' ground amounts to this : If the lots had become worth two or three times the price which the defendant paid for them, then they could set up the outstanding title, deprive the defendant of his speculation, and throw him upon the covenants in his deed, which would restore him to the con- sideration paid. If on the other hand, the lots should depreciate very much, the complainants would procure the outstand- ing title for him, and retain the price which he paid. There is no equity or fairness in this, and the court cannot grant the relief prayed by the bill without first making such a contract for the parties ; a contract which they never did make, and I presume never would have made if any failure of title had been supposed probable 399 § 258.] OPERATION OF COVENANTS FOR TITLE [CHAP. XL < / the authority of this decision has been several times recognized and followed. For if the acquisition of the after-acquired estate operates merely as a personal rebutter, giving to the covenantee a right to come into equity for its conveyance to him, 1 he would have the option of either doing this or of recovering damages on his covenant, and the covenantor could not compel him to do the one in preference to the other. This point has been directly presented in several cases in New York, Massachusetts, Indiana, and Wis- consin, and it has been decided, upon great soundness of principle, that when the grantee has been actually evicted, the after-acquired title cannot, without the consent of the latter, be made to inure to him by way of estoppel, either to defeat his right to a recovery in an action on the covenants for title, 2 or to reduce the measure when the conveyance was executed." To the same effect was the decision in Bing- ham v. Weiderwax, 1 Comst. (N. Y. ) 513; see supra, p. 259, n. 1. In Woods v. North, 6 Humph. (Tenn.) 310, an executor sold with a covenant that as executor he was seised of, and had good right to convey, property which in fact belonged to himself in common with other devisees of the testator, and which the will gave him no authority to sell. The pur- chaser filed a bill to rescind the contract on the ground of imposition, and pending this, the premises were sold by the devi- sees and purchased by the defendant, who then tendered a deed in his individual capacity. But the court held that this offer presented no good reason for denying the relief prayed by the bill. " If the complainant were compelled to take this title, the price he agreed to give for the land would inure to the individual benefit of the defendant. He has purchased the land, and is bound to his co-heirs only for the price he bid at the sale, under the de- cree before mentioned, while he would get all the benefit of the exorbitant price, it may be, which the complainant was to give. But if a party fraudulently sell and convey an estate to which there was no title, the vendee who comes into equity to rescind the contract will not be compelled to take, an after-acquired title from the vendor." This case is not affected by Blackmore v. Shelby, 8 Humph. (Tenn.) 400 439, for there the contract had not been consummated by execution of the deed ; and it is familiar that the vendee will, in general, be compelled to take the title, if acquired by his vendor at any time before final decree. It may be remarked of Woods v. North that the presence of fraud in the case was only material in giving the plain- tiff a standing in equity to rescind the con- tract, and the principle of the case applies equally in any case where from other cir- cumstances the plaintiff would be entitled to relief in equity, or to damages on his covenants in a court of law. 1 Infra, Ch. XV. 2 Blanchard v. Ellis, 1 Gray, (Mass.) 193 ; see the opinion of the court, supra, p. 259, n. 3. Of this case Mr. Bigelow says (Estoppel, 4th ed., 425, n.) : "The writer personally knows that the opinion of the able judge [Thomas, J.] was to the last very strongly against the notion that the covenant of warranty, however broad, could have the effect of actually transmit- ting an estate." Bingham v. Weiderwax, 1 Comst. (N. Y.) 509; for the facts and opinion of the court, see supra, p. 259, n. 1. In Burton v. Reeds, 20 Ind. 87, Burton conveyed certain lands to Reeds, with cov- enants for title, on which the latter, being evicted by paramount title, brought suit. After action brought, the paramount title was conveyed to Burton who pleaded this in bar. But the court said : "The appel- lant says that having bought in and in- 258.] BY WAY OF ESTOPPEL. [CHAP. XI. of his damages. In other words, the option, when there is one, should be the option of the party entitled to the benefit of the covenants rather than the option of the party bound by them. vested himself with the paramount title, the plaintiff is not untitled to more than nominal damages. VThe general doctrine is, 'that A., having no title, makes a deed to B. with full covenants of warrant}', and A. subsequently acquires title by descent or purchase, he is estopped by his cove- nant, as against his grantee, to deny that he had a good title at the time of the grant, and such new title is said to inure to the grantee.' It is conceded that this rule applies where the action is upon the covenant for seisin and where the covenan- tee is in possession, but it is contended, that where the grantor purchases the paramount title after the eviction of his grantee, such title does not inure to his grantee by way of estoppel, without his consent, so as to defeat his right to main- tain an action upon the covenants of war- ranty and the quiet enjoyment, and to recover the consideration paid by him and interest. This view of the rule, and the exception to it, seems to accord with the weight of authority." And the court, cit- ing Blanchard v. Ellis, supra, continued, " This decision is sustained by various ad- judicated cases, and enunciates a principle which seems to be clearly right. Tucker v. Clarke, 2 Sandf. Ch. (N. Y.) 96; Bingham v. Weiderwax, 1 Comst. 513. If then we are correct in our conclusion that the plaintiff in this case was evicted from the premises, such eviction evidently occurred prior to the institution of this suit, and, in se- quence, the title acquired by the defend- ant after its commencement cannot, in the absence of the plaintiff's assent, be al- lowed to inure to him either in bar of the action or in mitigation of damages." In Noonan v. Ilsley, 21 Wis. 139, the plaintiff, having no title to certain lots, conveyed them, in 1856, to the defendant, who gave his due-bill for a portion of the purchase money. In April, 1862, the plaintiff sued on the due-bill, and the defendant:, by way of defence and counter claim, alleged a breach of the plaintiff's covenant for seisin. In November, 1862, after the action had been commenced, the plaintiff acquired the good title to the lot, which he claimed at once inured to the defendant and deprived him of this defence, and so the court below charged, but this was reversed in the Supreme Court. "The defendant," said Downer, J., who delivered the opinion, "was en- titled to a fair indemnity for all the dam- ages he had sustained. All the rules on this subject have been framed with a view to give him such damages as will indemnify him. These rules are in sub- stance as follows : If there is an entire failure of title, and the vendee has had no actual possession, he is entitled to recover the purchase money and interest from the date of the deed. If the title to a part of the lands only fails, he is entitled to re- cover the purchase money and interest of that part. If the title fails, and he has had actual possession of the land, he is en- titled to recover the purchase money and interest thereon for such length of time as he himself may be liable for the use and occupation of the premises to the rightful owner, which is in most of the States not exceeding six years preceding the rendition of the judgment. If he has had possession until the statute of limita- tions has closed upon all adverse claims, and the title is thus perfected in him, he can recover only nominal damages ; and if there is a covenant of warranty in the deed to him, and his grantor, before suit brought and probably before judgment in the action for breach of the covenant of seisin, acquires the title, it inures to his benefit ; and if he has had possession and is not liable to any one for the use of the premises, the damages are nominal. There- fore if the defendant or his vendee had had actual possession of the premises from the date of the deed of the plaintiff to him, he would still have the right to re- cover damages equal to interest on the consideration money of the two lots for six years preceding the delivery of the deed to the plaintiff, if the trial had taken place at or about the date of the deed, for the reason that the occupant would be lia- 26 401 § 259.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. It will hereafter be attempted to show that the doctrine by which the after-acquired estate inures to a prior grantee is purely equitable, and when enforced by courts of law is done so by their administering equity through the medium of common law forms ; namely, by treating as having been conveyed that which equity would decree to be conveyed, but that, apart from this, the prior grantee has no right which can be enforced at law except by a recovery in damages for a breach of the covenants he has received. In equity, however, he has a right to claim that the after-acquired title should be conveyed to him, and these are distinct and different remedies, cognizable in different tribunals, and enforced by different machinery. If, then, by reason of a broken covenant, the prior grantee has the right to damages in a court of law, and, in the alternative, has also, if he choose to take advantage of it, the right to demand in equity that the after-acquired title be conveyed to him, it is difficult to see how the alternative and optional right to relief in equity should utterly and ipso facto destroy his right to damages at law. § 259. Secondly, as between the purchaser and a subsequent purchaser from the grantor. The practical results of this doc- trine of estoppel, when applied as between the purchaser and the grantor, yield in importance to those which arise in the connec- tion we are now to consider. It has been already said that the class of cases which has been cited hold that the estoppel created by the covenants operates actually to transfer the after-acquired title, by mere operation of law, and even against the consent of the party entitled to the benefit of the covenants. " The obliga- tion created by estoppel," it has been said in an often quoted opinion, " not only binds the party making it, but all persons privy to him ; the legal representatives of the party, those who stand in his situation by act of law, and all who take his estate ble to the plaintiffs vendor. It can hardly terest on the consideration money for that be contended that the damages should be time, and we think the latter. Such dam- less when the deed of the plaintiff gave ages the instruction precluded the defend- the defendant no right of possession and ant from recovering, and for that reason was followed by no actual possession. The the judgment must be reversed." And the true rule of damages in such case must be court cited Tucker v. Clarke with appro- either the value of the use of the premises bation, distinguished Baxter v. Bradbury, for the time the grantee had neither pos- and disapproved of Reese v. Smith, supra, session nor the right of possession, or in- p. 253, n. 2. 402 § 259.] BY WAY OF ESTOPPEL. [CHAP. XI. by contract, stand in his stead and are subjected to all the con- sequences which accrue to him. It adheres to the land, is trans- mitted with the estate, it becomes a muniment of title, and all who afterwards acquire the title take it subject to the burden which the existence of the fact imposes on it. These principles had their origin at a very early period in the common law." 1 Such a course of decision, if logically followed, leads to the result that the after-acquired title vests in the grantee, not only as against the grantor and his heirs, but as against a subsequent purchaser from the latter of the after-acquired title. 2 And the result itself, when applied to the case of a bona fide 1 Douglass v. Scott, 5 Ohio, 198. (This case was, however, rightly decided on the facts. Kerr was grantee, with cove- nants, of an estate not patented to the original grantor till afterwards. The plain- tiff had bought at sheriffs sale under a judgment against Kerr ; and the defend- ant, at a sale under a subsequent mortgage made by him. The Legislature appointed a special trustee of the original covenan- tor's legal title, with power to convey it by patent to the party who had the right to it. The plaintiff obviously had such right, and of course the defendant could take nothing by having the conveyance made to himself.) Wark v. Willard, 13 N. H. 389 ; White v. Patten, 24 Pick. (Mass.) 324 ; Dudley v. Cad well, 19 Conn. 226 ; Pike v. Galvin, 29 Me. 185 ; Bank of Utica v. Mersereau, 3 Barb. Ch. (N. Y.) 567; Tefft v. Munson, 57 N. Y. App. 97; Massie v. Sebastian, 4 Bibb, (Ky.) 436; Jarvis v. Aikens, 25 Verm. 635. In Dick- erson v Talbot, 14 B. Mon. (Ky.) 64, it was said that the estoppel passed not the equitable but the legal title to the prior grantee. This doctrine has lately been thus un- mistakably reiterated by the Supreme Court of Massachusetts in Knight v. Thayer, 125 Mass. 25. "It has been the settled law of this Commonwealth for near- ly forty years," said Gray, C. J., " that under a deed with covenants of warranty from one capable of executing it, a title afterward acquired by the grantor inures by way of estoppel to the grantee, not only as against the grantor, but also as against one holding by descent or grant from him after acquiring the new title. Somes v. Skinner, 3 Pick. 52 ; White v. Patten, 24 Pick. 324; Russ v. Alpaugh, US Mass. 369, 376. We are aware that this rule, especially as applied to subsequent gran- tees, while followed in some States, has been criticised in others. See Rawle on Covenants (4th ed. ), 427 et seq. But it has been too long established and acted on in Massachusetts to be changed, except by legislation." Certain it is, however, that the learned judge who delivered the opinion in the well-considered case of Blanchard v. Ellis, did not consider that the doctrine had been carried quite so far. See supra, p. 400, n. 2. In Powers v. Patten, 71 Me. 583, the doctrine of Knight v. Thayer, supra, was approved, and declared, in spite of the hardship it involved, to be "the settled law of this State, and many titles have been bought and sold upon the strength of it." 2 In the case of the Great Falls Co. v. Worster, 15 N. H. 452, it seems to have been taken for granted that this doctrine would apply only to the case of a pur- chaser with notice. In other cases, how- ever, the rule has been enforced even against purchasers without notice of the prior conveyance ; see the ensuing note. It need hardly be repeated that in this application of the doctrine of estoppel it cannot be held to rest on the preventing circuity 7 of action, as the assignee of the covenantor could never be liable to the prior covenantee, or to any one claiming under him. 403 259.] OPERATION OP COVENANTS FOR TITLE [CHAP. XI. purchaser without notice, cannot harmonize with the spirit of the registry acts in force in this country, and leads to the position, which certainly cannot be considered as tenable, that a purchaser must search the registry of deeds, not only from the time when his grantor acquired title, but also for a series of years before that time, in order to discover whether he had previously made any conveyance (though without title) to any other person ; for if he have, that person will, according to this doctrine, hold the estate as against this purchaser ; and if the property has passed through several hands, a similar search must be made with respect to every one through whose hands the title has thus passed. 1 1 This argument was pressed upon the Supreme Court of Massachusetts in White v. Patten, 24 Pick. 324, and disregarded. The facts of that case afford a striking il- lustration of the result referred to in the text. In 1S33, Thayer, who had no title whatever to certain land, but who was in possession, mortgaged it with a covenant of warranty to White, who put his mort- gage on record in February, 1834. In July of that year, Perry, the father-in-law of Thayer, and the real owner of the land, conveyed it to the latter, who the next day mortgaged it to Patten. This mort- gage, and the deed from Perry to Thayer, were recorded on the 2d of August follow- ing. Thayer continued in possession until ]835, when he was dispossessed by Patten, under an execution upon a judgment ob- tained against him. A writ of entry was then brought by White against Patten. Under these circumstances, Patten's coun- sel urged, with great force, that under the registry acts Patten had done enough to search the record back to the time when Thayer acquired title, that is, from July, 1834 ; and that any search before that time should properly be directed to con- veyances or mortgages given by Perry, the real owner, and not by Thayer, who had then no shadow of title. Nevertheless, the court held, upon the authority of cases arising under leases (see them cited and explained, supra, § 243), that the es- toppel created by the mortgage in 1833 bound the subsequent mortgagee of the after-acquired title, and the case was de- cided in favor of the demandant. Such 404 an application of the doctrine of estoppel obviously strikes a decisive blow at the protection intended to be afforded by our registry acts. The argument derived from the registry acts was also urged in Jarvis v. Aikens, 25 Verm. 635, but the court said : " It is not seriously claimed by [counsel] but that the subsequent title acquired by Aikens would inure to the benefit of Jarvis, so as to estop Aikens and his heirs from claiming title against him and his assignees ; but it is said that the principle should not be ap- plied as between the purchaser and a sub- sequent purchaser from the grantor, and that to so apply it would be at war with our registry system. This is a point of some importance, and well deserves con- sideration." After then quoting the lan- guage used in Douglass v, Scott, 5 Ohio, 198, supra, p. 403, n. 1, the opinion con- tinued : "In this view of the case, our registry system can have no control of the question. There was no title in Aikens when he deeded to Murphy ; it had before passed to Jarvis, and was vested in him. In the case from 24 Pick. 324 (White v. Patten, supra), the point was specially made by counsel that this doctrine was in conflict with their registry system, but the court did not regard the objection. The same objection has been made in other cases, but without effect." But it may be suggested, with great deference, that this practical repeal of the registry acts would seem to be judicial legislation. See infra, § 261. In Mc- Cusker v. McEvey, 9 R. I. 528, the court, § 259.] BY WAY OF ESTOPPEL. [chap. XI. Such a thing as absolute security in the purchase of real estate is of course unknown. Two systems exist, each widely different, on the opposite sides of the Atlantic ; one in England, depending on the security afforded by the possession of title papers, and the per Durfee, J., in speaking of the cases now under consideration, said : "The doc- trine of these cases, or of the major part of them, however, has been impugned by the American annotator of Smith's Leading Cases, and by Mr. Rawle, as based on a misconception of the Engish authori- ties and as erroneous in principle — the warranty being, in their view, effectual only by way of estoppel or rebutter against the warrantor and his heirs, but inoper- ative on the after-acquired estate — and also as inconsistent, where applied to the prejudice of a bona fide purchaser for value without notice, with the spirit and purpose of the recording acts of the sev- eral States. The argument in support of these views is certainly very strong, if not theoretically unanswerable ; but the doctrine impugned has been so often and so fully recognized in the courts and re- peated in the text-books, that we feel bound, out of regard for the security of titles, to follow the precedents. The ar- gument derived from the recording acts was particularly urged in White v. Patten, 24 Pick. 324, and in Jarvis v. Aikens, 25 Verm. 635, and in both cases disregarded ; and it may be remarked that the doctrine, however much it may be at variance with the spirit, does not violate the letter of the recording acts. . . . We think the rule, notwithstanding some adverse and some doubting decisions, has been too uniformly recognized by the American courts to be now repudiated or modified without the authority of a statute, and we are free to say, we think a statute is called for in view of this state of the law, in order to cany into full effect the policy of our re- cording act, and to prevent its operating, in cases of this kind, as a snare rather than as a protection to purchasers." But from the actual decision in this case, Potter, J., dissented in a learned opinion, (to be found in Appendix to 10 R. I. 606, ) wherein, suggesting that if the controversy were between the grantor and his grantee the case would be different, he proceeds : "If it is alleged that the first grantee has re- lied on the declaration in his deed and paid for the land, so equally has the sec- ond grantee. If it is alleged that by holding that the grantor and his as- signs under the second deed are estopped from setting up any title against the first deed, a suit on the warranty is prevented, and so circuity of action avoided — it is plain that this ground cannot be main- tained, because another lawsuit is not pre- vented ; it is merely left to the second grailtee. The spirit of the rules does not seem to apply to such a case. Both of these parties have equally relied on the grantor's declaration : one of the two is to be left to the luxury of a lawsuit ; now where is the equity of the case ? Under our system of registry, which to some ex- tent takes the place of the ancient cere- monies of delivery of seisin and open possession, the first grantee in this case could have ascertained by examination of the records whether Weeden or any of the mesne conveyancers had a good title to the land ; and if he found no title there, or anything to put him on his guard, could have required Weeden, or the per- son of whom he was immediately purchas- ing, to satisfy or secure him. The second grantee, going to the records, would find that Weeden at a certain date had acquired the title and had not conveyed it away since that date. Is it reasonable to re- quire him to examine further, so far as relates to his acquiring whatever title Weeden had at that date ? On the other ground he would be required to examine whether his grantor had not conveyed away the land before he bought it ; and so on as to every preceding grantor in- definitely. And in case of a strip of land on the border of a lot (which is the present case) it might involve an exami- nation of the title to all the surround- ing land, and no one would be safe with- out it." 405 § 259.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. other in the United States, far more efficient, depending on the security afforded by the registry (or as they are often called the recording) acts. As to the former in connection with this subject, a word will be presently said. As to the latter, no one will deny that both the letter and the spirit of these acts are to the effect that an unregistered deed is (with certain limitations as to time, etc.) void as against a subsequent purchaser without no- tice ; that a deed which, by reason of defective execution or the like, is not entitled to go upon the registry, is deemed unregis- tered ; and that a purchaser who searches the registry for pre- vious deeds made by his grantor is not obliged to go beyond what is called " the line of title." It were affectation to cite authority for such familiar knowledge. Nothing is more simple than what is " the line of title " as to the question now being considered, viz. that of a conveyance by a vendor without title, and a subsequent conveyance, after title has been acquired, to another. The first purchaser should search the registry for the deed to his vendor, and trace the title back to its source. If, as will of course be the case, he finds no title in his vendor, the fault is his own if he complete the sale. It is, of course, equally his fault if he take his deed without exami- nation of the title at all. Now for the second purchaser, the rule is equally simple. He, too, searches the registry for the deed to his vendor, and traces the title back to its source. He finds it regularly deduced, and that his vendor has, since he acquired title, made no conveyances thereof, and he is protected in taking his deed. And no one would pretend that the search for conveyances by his vendor should be made not only since he acquired the title, but also extend to all time before he had any title at all, and that the same search should be made against ev- ery one in the line of title. Yet according to the practical effect of the doctrine now being considered, and apart from counter equities, the purchaser, having thus brought himself within all the provisions of the registry laws, is not protected at all if his vendor had, before he acquired title, conveyed to another, with covenants, a title which was without existence or value. Such a doctrine, thus carried to its logical results, cannot and ought not to stand the test of experience, 1 and in recent cases 1 For as Judge Hare has well said, "It has heen careless enough to buy what the necessarily tends to give to a vendee who vendor has not got to sell, a preference over 406 259.] BY WAY OF ESTOPPEL. [CHAP. XI. decided since these suggestions were first made, courts have dis- tinctly held that as against a subsequent purchaser without notice the after-acquired title does not inure to a prior grantee. Thus in a Georgia case decided in 1855, 1 one Pyncheon having conveyed to the plaintiff, with warranty, a tract of land, described by reference to a certain plan, and having subsequently acquired an adjoining tract and conveyed this to the defendant, the plain- tiff claimed that part of the latter tract was included in the boundaries called for by the first conveyance, and had therefore passed to him as soon as Pyncheon acquired it. But the court said, " We are strongly inclined to the opinion that our registry acts, under the modern form of conveyancing, are a virtual re- peal of the doctrine of estoppel. At any rate, it is quite clear that notwithstanding Pyncheon sold to the plaintiff with war- subsequent purchasers who have expended their money in good faith and without be- ing guilty of negligence." Note to Duchess of Kingston's case, 2 Smith's Lead. Cas. (8th ed.). A similar suggestion was lately made in the reporter's note to the very recent case of Salisbury Savings Society v. Cut- ting, 50 Conn. 113. The case was argued as if it necessarily involved the question whether a deed given with covenants of warranty before the grantor acquires title is to prevail over a deed given, after he acquires title, to a purchaser in good faith, without notice of the former deed and for valuable consideration. And Park, C. J., who delivered the opinion, said, "If we were called upon to decide this question, we should regard it as one of very serious difficulty, inasmuch as in sustaining the later deed we should have to deny the con- trolling application to the case of the well- settled principles of estoppel ; while in sustaining the prior deed we should have to violate the entire spirit of our registry system, which it is the policy, and we may say in every other case the unyield- ing policy, of the law to sustain." Ac- cordingly, the court finding, in the record, proof that the grantee in the later deed was not a purchaser for value or without notice of the prior deed, rested its decision on that ground, and refused to consider the question whether, in the case supposed, the principle of estoppel or the registry acts should prevail. In a well-considered note, the reporter reviews the authorities on this question and says : " It is a well- settled rule that where a loss must fall upon one of two equally innocent parties, it shall be borne by him whose act, how- ever innocent, caused it. Now supposing the prior grantee, in taking a deed from a party who had no title, is to be regarded as equally free from negligence with the later grantee, who did his full share in searching the records, yet it was the act of the former in taking a conveyance in such au unusual manner that caused the whole difficulty. But this is upon the supposition that the prior grantee is not in fault. Much more should he bear the loss where he has been clearly guilty of negligence. If he took his deed without knowledge of the want of title in his gran- tor, he would seem to have been guilty of gross carelessness in not examining the public records. If he knew he had no title, and was willing to take his chance for his acquiring one, the case becomes almost one of fraud upon a person who purchases in good faith and for value after a title has been acquired. It would seem to violate every principle of equity to allow a party guilty of either, to prevail over the innocent and diligent later purchaser." 1 Way v. Arnold, 18 Ga. 181. 407 259.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. ranty, and afterwards bought [the second tract], this after- acquired interest did not feed the estoppel and pass the prop- erty in controversy immediately to the plaintiff." * 1 In Linsey v. Ramsey, 22 Ga. 627, the warranty was held to rebut (not to estop) the grantor who had made the deed before he acquired title; "and after he had ac- quired title, he himself, in the face of his warrant}', sued his warrantee for the land," and was, of course, held not to be entitled to recover. The Georgia cases growing out of the State land lottery were put on a wholly different ground, and therefore are not at variance with Way v. Arnold. In them, it was merely held that the payment of the grant fee gave the allottee an equitable title which passed by a deed with warranty, so that when the subsequent grant from the State cast the legal title upon him, the stat- ute of uses immediately vested it in the war- rantee, and the warrantor had nothing left to convey to a third party. Henderson v. Hackney, 23 Ga. 383 ; Bivins v. Vinzant, 15 id. 521; and see supra, p. 367, n. But even in such cases, the registry acts are not without effect. Hence in Faircloth v. Jor- dan, 18 id. 350, where, in 1834, Baugh be- fore the land was actually granted conveyed to Carmichael, who recorded his deed in December, 1836, and whose title afterwards became vested in the plaintiffs, and in March, 1836, Baugh acquired the title to the lot in question and conveyed it to Arnold, who recorded his deed at once, and through whom the defendants claimed, a verdict for the defendants was sustained simply because they claimed under the deed which was first recorded. "The doc- trine of estoppel by deed," said the court, "the doctrine that the donee in the younger of two deeds for the same land, made by the same donor, is estopped from insisting that the land was not, by the older deed, conveyed to the donee in that deed, is in direct conflict with much of the law con- tained in our registry acts. In those acts is to be found this rule — that a younger deed, if duly recorded, is to take prece- dence of an older deed if not duly recorded. This rule, as to the cases that fall within it, is in direct conflict with the aforesaid doctrine of estoppel. And what cases fall 408 within it? Cases in which the donor of the land owned it at the time when he made the fir.^t of the two deeds ; how much more, then, in cases in which the donor did not at that time own the land, but had come to own it at the time when he made the second deed. We think it clear, therefore, under these statutes, that an older deed not duly recorded cannot operate as an estoppel upon a younger deed duly recorded." Bivins v. Vinzant, 15 Ga. 521, was to the same effect on this point. In the subsequent case of Dudley v. Bradshaw, 29 Ga. 17, however, it was reluctantly admitted that the views of the court had altered so far as to make actual notice of a prior unrecorded deed take the case out of the registry acts. In Minnesota, the effect given to the registry acts is the same. In Burke v. Beveridge, 15 Minn. 206, one Jackson, having no title to certain lands, conveyed them with covenant of warranty to the de- fendant, who neglected to record his deed, and the latter conveyed to the plaintiff with covenants for seisin, of good right to convey, for quiet enjoyment, and of war- ranty. Jackson subsequently acquired the good title, and conveyed it to Hitchcock by a duly recorded deed. The plaintiff sued for breach of the covenants for sei- sin and of good right to convey; and, on the part of the defendant, it was contended that the after-acquired title of Jackson at once inured to the benefit of the plaintiff, and consequently that Hitchcock took nothing, and that the damages could be but nominal; but the court said, "It is unquestionable that the deed from Jackson to the defendant, not having been recorded till after the making and recording of that from Jackson to Hitchcock, is prima facie void as against the latter. Jackson v. Given, 8 Johns. (N. Y.) 139 ; Dunham v. Dey, 15 id. 567. But he suggests that the record of the mortgage given by de- fendant to Jackson ought, with that of the deed to the plaintiff, to operate to rebut the presumption of Hitchcock's good faith. But it is entirely clear that the record of § 259.] BY WAY OF ESTOPPEL. [CHAP. XI. In a Pennsylvania case in 1866, 1 the question was as directly presented in connection with the registry acts, and the doctrine placed upon its proper basis. One who had bought a tract of land by deed which excepted out of it " the factory lot " mortgaged the whole, without excepting this lot, the mortgage being duly re- corded. The next year, he acquired title to the lot, which was afterwards, under a judgment against him, levied upon and sold. Some years after, the mortgagees foreclosed and bought in the that deed and mortgage was not construct- ive notice to Hitchcock. 2 Lead. Cas. in Eq. 181. And as there was therefore no presumption of law that he knew of their existence, and as the fact that such record existed would have of itself no tendency to prove that he knew it did, and as de- fendant introduced no evidence tending to prove any actual notice, not even that Hitchcock examined the records before taking his deed, there was no error in the failure of the court below to submit the question of actual notice to the jury. " And it was held that the plaintiff was entitled to recover the amount of the consideration, with interest. The recent case in Michigan of Smith v. Williams, 44 Mich. 240, well illustrates the application of the registry acts. In 1856, B. F. Squires claimed to be the owner of the premises, though it seems he did not receive the patent from the United States until 1859. On December 13, 1856, Squires conveyed to J. Squires, who on the same day conveyed to Williams, the plain- tiff in ejectment; none of these deeds were recorded, and this constituted the plain- tiffs title. Under, it is presumed, the rule that the plaintiff in ejectment must recover on the strength of his own title and trace it out of the Commonwealth or the United States, as the case may be, these deeds were objected to in evidence, but were, it was held, properly admitted by the court below, the Supreme Court (Cooley, C. J.) saying that where one assumes to convey a title, he will not be suffered afterward to acquire or to attack it and turn his grantee over to a suit upon his covenants for redress. The short and effectual method of redress was, he said, to deny him the liberty of setting up his after- acquired title as against his prior conveyance. This was merely refusing him the countenance and assistance of the courts in breaking the assurance which his cove- nants had given. And to this doctrine, thus applied in that case, no exception can be taken. The defendant claimed un- der proceedings in 1870 against Squires, who was a non-resident, to recover delin- quent taxes due by him, in which the de- cree declared that the defendant's title should be quieted as against any claim of Squires. This evidence the court excluded, and this was affirmed on error, on the ground that "the titles had accrued after he conveyed, and enforcing them neither took from him anything nor made him liable on his covenants. Therefore, if knowledge of the suit had come to him, he would probably have given it no atten- tion, because the result of it could not con- cern him. The decision as to him might as well have been left unmade." And in answer to the contention that the plain- tiff, by not recording her deed until 1877 and by suffering Squires to appear of rec- ord as apparent owner, must lose her title by force of the recording acts, it was held "that the defendant was not a [sub- sequent purchaser] within the provisions of the registry acts, which in Michigan as in most of the United States, provide that an unrecorded conveyance shall be void as against any subsequent purchaser in good faith and for valuable consideration. If in this case the defendant had taken title from B. F. Squires and paid the purchase money, his title as a purchaser would have prevailed over the unrecorded deeds under which the plaintiff claimed, and the after- acquired title from the United States would have inured to his benefit." 1 Calder v. Chapman, 52 Pa. 359. 409 § 259.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. property, when the sheriff's vendee under the judgment brought ejectment for the lot. It was urged for the defendants that by force of estoppel the after-acquired title of the mortgagor inured to their benefit as mortgagees, but it was held that the registry of the mortgage was no notice to a purchaser of the lot, who was not bound to search for incumbrances or conveyances by his vendor before the time when the latter first acquired title ; that the doctrine of estoppel did not apply, and the judgment, which had been entered below for the plaintiff, was affirmed. 1 1 After citing the cases which hold that a purchaser is required to take notice of matters of record in his line of title only, Read, J., said, "These decisions rule this case, and there is no hardship on the mort- gagees ; for an examination of the title when they took the mortgage must have shown them that Calder had no title to the ' factory lot ' ; an innocent creditor should not suffer for their gross negli- gence." The previous course of decision in Penn- sylvania has been thus : In the early case of McWilliams v. Nisly, 2 Serg. & Rawle, 515, the court said, "J. M. sells and conveys land to which he has no title, hut afterwards acquires title. Can his heirs recover against his grantees ? It ap- pears to me that in such case they would be estopped by their father's deed from denying his title, and if there were occa- sion for further assurance, equity would compel them to make it." And it was added, "In equity, a grantor conveying land for which he has no title at the time shall be considered a trustee for the gran- tec, in case at any time afterwards he should acquire title." Whether the con- veyance in this case by J. M. did or did not contain covenants for title is not stated in the report. In the later case of Chew v. Barnet, 11 Serg. & Rawle, 389, it was held in a very able opinion delivered by Gibson, C. J., that the acquisition of the subsequent title enabled the prior purchaser to de- mand in equity a conveyance from the r, but did not vest the title in him of Itself by estoppel. " In the case," said the court, "of a conveyance before the grantor has acquired the title, the legal 410 estate is not transferred by the statute of Uses, but the conveyance operates as an agreement which the grantee is entitled to have executed in chancery." In that case Wilson, having an equitable title to certain lands, conveyed them to the plaintiff with covenants of special war- ranty and for further assurance. The legal title was subsequently conveyed to Wilson, who mortgaged it, and it was held that the plaintiff took subject to the mortgage. "Judge Wilson having noth- ing but an equitable title," said Gibson, C. J., " could convey nothing more. His deed, therefore, passed to the plaintiff only an equitable title. But it is said the subsequent conveyance to Judge Wilson inured to the benefit of the plaintiff. It did so, but only in equity, and to entitle him to call for a conveyance from Judge Wilson, and not as vesting the title in him of itself, as contended, by estoppel. The facts presented constitute the ordinary case of a conveyance before the grantor has acquired the title, in which the con- veyance operates as an agreement to con- vey, which, when the title has been subsequently acquired, may be enforced in chancery ; " but not of course as to a subsequent purchaser without notice, as was this mortgagee. Brown v. McCormick, 6 Watts, 60, was a strong case, in which the doctrine that the after- acquired estate "by operation of law immediately passes to the grantee " was applied to its full extent, and appar- ently against a purchaser without notice. (The case is referred to at length in the fourth edition of this treatise, page 432. It was relied on in the argument in Calder v. Chapman, 52 Pa. 359, and must § 259.] BY WAY OP ESTOPPEL. [CHAP. XI. A recent case in Missouri is to the same effect. One Mason, having no record title to a certain lot, conveyed it by deed of perhaps now be considered as overruled by it.) In Kennedy v. Skeer, 3 Watts, 98, there was a mere assignment of the title acquired under a treasurer's deed, which it was held did not estop the grantor from afterwards claiming the land under a sub- sequently acquired title. In MeCall v. Coover, 4 Watts & Serg. 161, it was held that titles to donation land granted by the Commonwealth to soldiers of the Revolution prior to the acquisition of title by the State were con- firmed by the subsequent purchase by the latter. (See supra, p. 367, n. In Tyson v. Passmore, 2 Pa. 122, the defendant, by articles of agreement recit- ing a warrant for seventy-five acres, and a proposed survey, covenanted to convey to the plaintiff all the land "acquired by de- fendant by the warrant and survey afore- said." It was proved that the articles intended to convey a tract of two hundred and sixty acres, and that the defendant procured a survey for the seventy-five acres which he transferred to the plaintiff, and afterwards obtained a survey for the resi- due of the tract. On an ejectment by the plaintiff for this residue (on his equitable tide, as was allowable in Pennsylvania), the court held that "the proper relief is not to reform the instrument, but to con- vert the fraudulent vendor into a trustee ex malcficio." In Shaw v. Galbraith, 7 Pa. Ill, there had been a conveyance to a grantee with- out the addition of the word " heirs," but the covenant of warranty was with the grantee and his heirs and assigns, and after- wards a lease by the grantor to the plaintiff for life, who, on the death of the grantee, brought ejectment. A verdict for the de- fendants was affirmed in error. "Grant- ing that in this deed," said Rogers, J., "a life estate only is granted, and that the subsequent warranty or covenant does not enlarge the estate, yet the question re- mains whether this covenant may not op- erate as an equitable rebutter ; or, in other words, is Galbraith, and Shaw who claims under him, estopped from asserting a title to the land ? . . . By the habendum, in consequence of the omission of the word ' heirs,' a life estate only is conveyed to the grantee ; but the deed contains a special warranty, whereby the estate is warranted to the grantee, his heirs and assigns. . . . Now although a warranty in favor of the heirs may not enlarge the estate, yet it would be against every principle of construction to reject it as sur- plusage. In the construction of a deed or will every word must have its own weight, and certainly a distinct covenant, as here, cannot be utterly disregarded. The deed contains a covenant that the grantor will not molest or disturb (that is its effect) either the grantee or his heirs, and if, contrary to his covenant, he recovers the land, and dispossesses the grantee or his heirs, action accrues to recover its value from the grantor. The question then is, whether, to prevent circuity of action, the defendants may not plead an equita- ble rebuttal, or estoppel, as against the grantor and those claiming under him, . . . and we are of opinion that the grantor and Shaw, the plaintiff, who claims under him, are estopped from denying the title." In Root v. Crock, 7 Pa. 380, where a survey was made for the purpose of a par- tition, and the heirs conveyed according to the lines of that survey, and a recon- veyance was made to one of them of his purpart, it was held that they were es- topped from denying the correctness of the boundaries, and the husband of one of the heirs, who had also been a party to the deed, having purchased adjoining land, part of which was included in the survey and deed, it was held that he was estopped from claiming so much as was included. It was argued on his behalf that there could be no estoppel without a warranty, but the court said, "There is no principle in our law better or more plainly settled than that on which the judge instructed the jury — that if a man sells and conveys land to which he has 411 § 259.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. trust, with covenants for title implied from the words " grant, bargain, and sell." The deed was practically a mortgage, with a clause of defeasance, and was duly recorded. Mason afterwards acquired title to the land and sold it to a purchaser without no- tice, who sold to the plaintiff. Upon sale being made by the trustee under the first indenture, the plaintiff purchased the prem- ises to secure his own title, and then brought suit for the money thus paid, against the attorneys who had furnished him a clear abstract of title. The question was whether the record of the deed of trust was constructive notice to the purchaser, and it was held that it was not. 1 no right or title, and afterwards buys or acquires the title to the same land, he cannot claim it as against his grantee." In Steiner v. Baughman, 12 Pa. 108, Gibson, C. J., remarked : "The covenant went directly to the land denned by the courses and distances ; and had the ven- dor subsequently purchased the part of it in question, a chancellor would have com- pelled him to convey it over again, in order to make good his former deed ; and this on an equity from the fact that he had received value for it." In Skinner v. Starner, 24 Pa. 123, it was held that as between the grantor and grantee in a conveyance with general warranty of land which was bound by a prior judgment, the grantor was bound to discharge the judgment, and that the title subsequently acquired by the grantor at a sheriff's sale under such judgment inured to the benefit of the grantee or those claiming under him, but that if the grantee, before the sheriff's sale, con- veyed to a third person expressly subject to all incumbrances, his vendee was not placed in his position, and had no equi- table right to demand a conveyance of the title subsequently acquired by the original vendor at the sheriff's sale. In Clark v. Martin, 49 Pa. 303, the court say, " It is not to be doubted that a vendor who undertakes to sell a full title for a valuable consideration when he has less than a fee simple, but afterwards ac- quires the fee, holds it in trust for his vendee, and will be decreed to convey it to his use, and equally clear is it that if a vendee mortgage his title, the perfection 412 of the title by the vendor inures to the benefit of the mortgagee." In Turner v. Scott, 51 Pa. 133, it was held that a cove- nant of warranty in an instrument pur- porting to be a deed, which, however, was construed to be a will, " would protect the consideration therein expressed, which in this case was in the form of services, and if the grantee rendered the services he would be entitled to damages," but that the covenant would not estop subsequent devisees. It is to be observed that in Scott v. Scott, 70 Pa. 244, it has since been held that a covenant of warranty could not be created by a will. Supra, p. 170, n. With regard to Shaw v. Galbraith, su- pra, it is however to be observed that con- trary decisions have been elsewhere made upon similar facts, and it has been con- sidered that the objection that the heirs of the grantor were rebutted from claim- ing the land by the warranty of their ancestor was met by the decisive answer that the warranty ceased when the estate to which it was annexed determined. Register v. Rowell, 3 Jones, (N. C.) 312 (where Seymor's case, 10 Rep. 95 b, was relied on to the effect that a warranty cannot enlarge an estate). Rector v. Waugh, 17 Mo. 13. In Patterson v. Moore, 15 Ark. 222, neither the warranty nor the grant was to the grantee and his heirs, and the fact that the warranty was against the grantor and his heirs and assigns did not make the rule in Shaw v. Galbraith applicable. i Dodd v. Williams, 3 Mo. App. 278, decided in 1877. The court, after a review § 260.] BY WAY OF ESTOPPEL. [CHAP. XI. § 2G0. It will have been observed that these cases, thus decided under the registry acts, rested on the ground of the absence of notice — of there being nothing on the registry which was or ought to be notice to an intending purchaser — and in cases where no other notice than the registry is involved, the logic of these authorities would seem to be unanswerable. But construct- ive notice under the registry acts is only a branch of the general doctrine of notice, it being well settled that whatever is sufficient to put a purchaser upon inquiry is notice, and will deprive him of the defence which otherwise the registry acts would afford. 1 As to what is deemed sufficient thus to put one upon inquiry, possession is prominent, and if, in the facts of any case upon the present subject it be found that the first grantee (that is, the one under a defective or no title) or those claiming under him is in posses- sion, that will be notice to the second purchaser and all claiming under his title. And if it be suggested that if inquiry would lead only to the discovery that the grantee had no title at all, which, under the authorities, would not amount to notice, the answer is that it would disclose that the first grantee was the holder of a legal title, presumably for value, with an equity to compel from his grantor the transfer of the valid title if and when it should of the authorities, said : "As it is certain to such results. . . . We think that Dodd that a purchaser of land is affected with was a purchaser without notice, and was constructive notice of anything that lies not estopped from setting up his title within the course of his title, it follows that against the purchaser under the deed of whenever it is held that no examination trust, who carelessly took a deed of prop- of title need be made as to conveyances erty to which his grantor had no title and before record title in the grantor, it should of which he had no possession. . . . Dodd logically be held that such deeds cannot was not bound to examine the records for affect the rights of innocent purchasers conveyances of Mason prior to the date of for value, and that the doctrine of inure- his record title." nient and estoppel, which in spite of the 1 Notes to Basset v. Norsworthy, and registration laws has obtained in many of Le Neve v. Le Neve, 2 Lead. Cas. in Eq. ; the States and especially in New Eng- Story's Eq. Jur. § 400 et seq.; Bispham on land, must be thrown aside. ... To say Equity, § 268. Thus in Way v. Arnold, that where one who has no title sells with 18 Ga. 191, supra, p. 407, n. 1, the court warranty his after-acquired title shall expressly said that its decision would have inure to his grantee, so that not only the been different if the after-acquired inter- grantor and his heirs, but all his subse- est had been intended to be conveyed to quent grantees are estopped from claim- the first grantee, and the second grantee ing, irrespective of all questions of registry had purchased with notice of this fact, and notice, seems a most inequitable ap- for then he " could not conscientiously plication of the doctrine of estoppel, and hold the land in dispute." To the same it is no wonder that in recent cases courts effect is Doyle v. Petroleum Co., 44 Barb, have shrunk from carrying the doctrine S. C. (N. Y.) 240. 413 § 160.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. devolve upon him. This of course would amount to notice to the intending purchaser that the otherwise valid title he was about to purchase was bound by an equity in favor of a previous purchaser. If, therefore, by reason of possession or any other sufficient circumstance, the second purchaser has notice of the prior title, he must be deprived of the protection of the registry acts, which would not be considered to apply to the case. Thus in a recent case in Delaware, the facts were such that unless the element of possession had entered into the case, judgment would necessarily have been, under the operation of the registry laws, given for the plaintiff ; but it appeared in the case that the grantee of the defective title immediately went into possession and had continuously received the rents and profits, and after elaborate consideration of the general doctrine now under consideration, the court, in giving judgment for the defendant, concluded the opinion by saying, " As the defendant has been in possession from the date of his deed, it is not material in this case to con- sider the effect of recording the several deeds referred to in the case stated." * 1 Doe d. Potts v. Dowdall, 3 Houst. (Del.) 369. The facts were these: Me- nough, who in and before 1849 appears to have been well seised of the premises, con- veyed them in that year with covenants of warranty to Boyd, whose deed was placed upon record in November. In the next year, 1850, Menough conveyed the same premises to Dowdall by deed con- taining all the covenants for title, and it may be assumed, as was stated by the court but not contained in the case stated, that this deed was so expressed as to pur- port to convey to Dowdall, and to the fullest extent, an absolute title to the premises. Under this deed, Dowdall went at once into possession of the prem- ises, and thereafter continuously received the rents and profits. Then, in 1851, Boyd reconveyed the premises to Me- nough, who in 1853 conveyed them in mortgage, under foreclosure of which they were sold to the lessor of the plaintiff, who brought ejectment against Dowdall. Now, apart from the question of possession, the case would, under the registry laws, have seemed to be clear for the plaintiff, for unless Dowdall took his deed without re- 414 gard to the state of the registry (which of course would have been negligent), he would have found, on searching the latter, the recorded deed from Menough to Boyd, and must therefore be deemed to have acquired title with constructive notice of that deed. Then, when the mortgagees lent their money, they were only bound to search for conveyances as follows : first, against Menough, from the time he acquired title until 1849, when he con- veyed to Boyd ; secondly, against Boyd, between 1849, when Menough thus con- veyed to him, and 1851, when he con- veyed to Menough ; and thirdly, against Menough, from 1851, when Boyd thus conveyed to him, until 1853, when they took their mortgage ; but they were not bound to search for conveyances by Me- nough after 1849, when he had conveyed the good title to Boyd. But the convey- ance from Menough to Dowdall in 1850 was not in the line of search, and the mortgagees were, under the registry acts, purchasers without notice of this convey- ance, as much as if it had not been re- corded at all. But the protection thus afforded them by the registry acts failed § 261.] BY WAY OP ESTOPPEL. [CHAP. XI. § 261. The question arising in such cases involves a conflict between principles ; the old one, of notice from possession, and the more modern one, that an unbroken series of registered conveyances, or other devolutions of title which are matters of record, makes a good title. The Delaware court decided that the former must prevail, and as matter of fidelity to established principle this cannot be criticised. At the same time it may be suggested that when the protection of the registry acts is thus made to yield to the notice afforded by possession, uncertainty of title must necessarily result. It is familiar that although possession for the required time under the limitation acts will produce a title which is not only good but marketable, yet that practically the objection lies that its validity depends upon matter of evidence rather than of law. So with regard to possession as connected with notice ; posses- sion is matter of fact, often called in question, and often need- ing the decision of a jury. In the case of a sale, it may be that the vendee's desire of immediate possession will induce the inquiry whether it can be had, and the consequent discovery of the rights of any one in possession ; but in the case of a mortgage it is believed that, as matter of practice, a mortgagee rarely con- cerns himself as to who may be in possession, and would hardly be deemed guilty of negligence in not inquiring. And yet, by this application of the law of notice, it would seem that he, equally with a purchaser, is bound to inquire. Furthermore, it may be questioned whether a purchaser who has neglected to ascertain whether his vendor has title or not, or who has intended to run the risk of the title, ought to be allowed to set up notice from his possession against one who has used all legal means of ascertain- ing his title. It would seem, however, that the correction of this uncertainty in view of the fact that Dowdall was in rested upon the application of the doctrine possession, and inquiry of him by the mort- of estoppel as adopted in the American gagees would have disclosed the fact that cases ; but, with the element in the case he claimed under the conveyance from Me- of Dowdall's possession, the decision could nough in 1850, which would give him an not have been otherwise. In refilling equity to demand the transfer of the title to the cases of Fairbanks v. "Williamson, which Menough subsequently acquired by 7 Greenl. (Me.) 96, and Pike v. Galvin, the reconveyance in 1851 from Boyd to 29 Me. 185, supra, p. 367, n. 1, p. 370, himself of the good title which had been n. 4, the court considered the former case, conveyed to the latter by Menough. The which was overruled by the latter, to be decision of the case seems rather to have the sounder decision. 415 § 202.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. is matter rather for the legislature than the courts, and the stat- utes already referred to show, not uncertainly, the legislative disposition to uphold the rights of the purchaser of a defective title. 1 And as against such statutes, neither the protection of the registry acts nor any other can avail ; nor, it would seem, is the question of possession of any importance one way or the other. 2 It may be matter of grave question whether such legislation does not operate as a practical repeal of the registry acts. § 262. As respects the law as it is held in England, it will be found that in no case (except one, not now regarded as authority 3 ) has it ever been held that the after-acquired estate actually passes by estoppel, or that its acquisition does more than merely create an equity for a conveyance. Thus in the old case of Taylor v. Debar, 4 "A purchaser of the crown lands in the time of the late wars sells part to the plain- tiff, and covenants to make further assurance. He, on the king's restitution, had a lease for years made to him under the king's title. The decree was, he should assign his term in the part he sold." So in a modern case, a contingent remainderman conveyed his i Supra, § 248. 2 Supra, § 259. 8 Bensley v. Burdon, 2 Sim. & Stu. 524. In this case (referred to supra, p. 421, n. 1), Vice-Chancellor Leach treated an estoppel caused by a deed of lease and release as possessing the high efficacy of actually transferring the estate. But the authority of this case was soon after indirectly, if not positively, denied by the King's Bench in Bight v. BucknelL 2 Barn. & Ad. 273 (see the opinion of the court, supra, p. 362, n. 3); and Sugden, who had himself, in Bensley v. Burdon, argued in favor of the estoppel, afterwards said, when Chancellor of Ireland, in Lloyd v. Lloyd, 4 Dru. & War. 369, 2 Conn. & Lawson, 598, (the report in the first of these books is the more full, ) that it was now clearly settled that a conveyance of this nature has no effect upon the legal estate which the party subsequently acquires. In Doe d. Hutchinson v. Prestwidge, 4 Maule & Selw. 178, one of three tenants in common in tail released to the others with a covenant of warranty. By the 416 death of one of the latter the releasor be- came his heir, and conveyed his interest in the premises to the plaintiff, who brought suit for the same against the children of the other tenant in common, who had also died, for whom it was contended that whether this warranty passed the right or might be used only by way of rebutter was immaterial to the defendants ; in either case the plaintiffs were not entitled, for they could not stand in a better position than the releasor himself, " and the court having intimated an opinion that the les- sors of the plaintiff were barred by the re- lease in respect of so much of the releasor's interest as the plaintiffs took under the release," the defendant's counsel "made another point, viz. that whatever interest passed by the release passed to the releasees as joint tenants and not as tenants in com- mon," but this was subsequently aban- doned, "wherefore judgment passed for the defendants." 4 1 Ch. Cas. 274 ; s. c. nom. Taylor v. Dabar, 2 id. 212. § 262.] BY WAY OF ESTOPPEL. [CHAP. XI. interest therein, with a covenant for further assurance, to secure a debt, but by the act of the tenant of the prior estate this remain- der was destroyed, and the remainderman subsequently acquired a new interest in the property, and it was held that this sub- sequent title was available to the creditor, and Shadwell, V. C, said, " I do not place much reliance upon this covenant for fur- ther assurance, because I take the law to be this : that if a person has conveyed a defective title, and he afterwards acquires a good title, this court will make that good title available to make the conveyance effectual." J In the recent case of Heath v. Crealock, 2 trust funds were lent on mortgage by two trustees, and the title deeds delivered to one of them who was a solicitor, and who was also the solicitor of the mortgagor. With the concurrence of the solicitor trustee, and without the knowledge of the co-trustee, the mortgagor sold part of the land to a purchaser without notice of the mortgage. The deeds to the purchasers contained recitals that the grantor was 1 Noel v. Bewley, 3 Simons, 103. In Smith v. Baker, 1 Younge & Coll. 223, the decision was to the same effect, and the covenants were not alluded to in the opin- ion. In Morse v. Faulkner, 1 Anst. 11 ; s. c. 3 Swans. 429, n. (where the report is more full), a bill hied against the heirs of one who sold a property, which he did not possess till afterwards, was dismissed ; but the case is no authority on the point, for Chief Baron Eyre said : " Really I do not think it necessary to go into the general question upon this occasion. This is not the sort of sale that it becomes the court to take notice of. A common soldier goes down to a country alehouse, and late at night calls together two or three people, and offers to sell his estate, and then two persons bid for it, and the affair is all over. The transaction is not serious enough for this court to interfere with." Sugden, re- lying apparently on the report in 1 Anst, thought the case of some importance, and said of it : "It seems to have been consid- ered that this [duty to convey the estate to the purchaser as soon as the vendor acquires title] is a personal equity attach- ing on the conscience of the party and not descending with the land, and therefore that if the vendor do not in his lifetime confirm the title, and the estate descend to the heir at law, he will not be bound by his ancestor's contract. This opinion, however, deserves great consideration." 2 Sugd. Vend. (14th ed.) 745. But Chief Baron Eyre in Morse v. Faulkner spoke by no means positively as to this doc- trine of mere personal equity, and ex- pressly said, "I shall not determine the case upon this ground without further consideration." Afterwards, when Chan- cellor of Ireland, in Averall v. Wade, Lloyd & Goold, 261, Sugden said : "The only case I recollect on the subject is Morse v. Faulkner ; there the party was not en- titled at the time of the conveyance, but afterwards acquired the title by descent, and the court seemed to think that this was a personal equity, and not descend- ing with the land. I am not of that opinion." And in Jones v. Kearney, 1 Dru. & War. 159, the Chancellor, refer- ring to Morse v. Faulkner, said, "I had always thought that no good reason could be given why the contract should be bind- ing upon the ancestor, and not upon the heir." 2 L. R. 18 Eq. 215; on appeal, 10 Ch. App. 30. 27 417 § 262.] OPERATION OF COVENANTS FOR TITLE [CHAP. XT. " seised or otherwise well and sufficiently entitled for an estate of inheritance in fee simple in possession, free from all incum- brances," and contained also the usual covenants for title and for further assurance. The solicitor trustee received the purchase money from the mortgagor and promised him to obtain a recon- veyance from his co-trustee. Eleven years afterward, the mort- gagor, learning that the solicitor trustee had misappropriated the fund, insisted upon the promised reconveyance, whereupon the solicitor trustee induced his co-trustee to join him in such re- conveyance, representing that the mortgagor was about to sell. The solicitor trustee then absconded, and his co-trustee filed a bill against the mortgagor and purchasers from the latter, praying that the deed of reconveyance be delivered up to be cancelled, for an account of the amount due on the mortgage, and in default of payment a foreclosure, and that upon such foreclosure the title deeds be delivered to the plaintiff. It was contended for the pur- chasers that they had obtained the legal estate, because although the mortgagor did not have it when he executed the deeds to them, yet he afterward obtained it by the reconveyance, and it then fed the estoppel created by his deeds. The case first came up before Bacon, V. C, who said: "If [the mortgagor] , having sold and conveyed to the defendants, the purchasers, without a title, had afterwards obtained a perfect title, then, as between him and them, his subsequent title would no doubt have fed the es- toppel, and would entitle them to have their originally defective title made perfect by him. But the principle of estoppel applies only between parties and privies, and if the estate supposed to be acquired by the mortgagor under the reconveyance is destroyed by the cancellation of that conveyance, and before any estate can have passed from him to them, there can exist no food for the supposed estoppel, and the purchasers are reduced to the position in which they would have been if no reconveyance had been exe- cuted ; it being wholly out of the question to suggest that any equity exists as between them and the plaintiff." And the decree prayed for was made. On appeal, this decree was affirmed, 1 Lord Cairns saying : " There is no estoppel whatever in this case. The conveyances to the purchasers were innocent. They were ordinary 1 10 Ch. App. 30. "With a modification purchaser for valuable consideration with- as to the return of the title deeds, this out notice, being contrary to the rule in the case of a 418 § 262.] BY WAY OP ESTOPPEL. [CHAP. XI. conveyances by grant, the operative words of which, as is well known, would create no estoppel ; and the estoppel, if it arose at all, would arise by virtue of the first recital in the conveyance. The recital was in substance the ordinary one in such cases. It recited that [the mortgagor] was seised or otherwise well and suffi- ciently entitled to the property in question free from incumbrances. If the recital had been a recital simply that [the mortgagor] was seised, there might have been an estoppel, but the recital is one out of which no estoppel can arise, because it is not precise or un- ambiguous. It is a recital which in substance amounts to a state- ment that he had an estate either at law or in equity, and the fact that it states that the estate, whatever it was, was free from incumbrances, creates no estoppel for the purpose of making the legal estate pass. There is, therefore, no estoppel operating so as to convey the legal estate to the purchasers." * In the still more recent case of General Finance Company v. Liberator Society, 2 the question of estoppel was again presented. Briefly, the facts were these. 3 White being, in 1872, the owner of certain premises, conveyed them in mortgage to Risdon. On May 14, 1873, Downs, who had no title to the property, conveyed it in mortgage to the plaintiffs. The mortgage deed contained no recitals, but there were the usual mortgagor's covenants for title including a covenant that he had full power to convey, and with the mortgage he handed to his mortgagees two deeds purporting to be the title deeds, but which were afterwards discovered to be forged. On May 20, 1873, White (the owner of the premises 1 Mellish, L. J., in his concurring opin- titled under the covenant. "Suppose the Ion, agreed with what the Chancellor had covenant for further assurance had been in said as to the estoppel. "It would have this form: 'I [the mortgagor] covenant been a question of some difficulty whether, that if hereafter I should acquire any fur- if the legal estate had, no matter by what ther interest in this estate, whether I ac- means, got into the purchasers, it could quire it by fair means or by fraudulent have been got out of them ; but in my means, I will convey it to you.' Is that a opinion it is clear that it has not, for there covenant which a purchaser could have is no estoppel, and I think the case is gov- enforced ? I think clearly not ; and yet erned by that of Eight d. Jefferys v. Buck- the purchasers must contend that they are nell, 2 B. & Ad. 278," supra, p. 362, n. 3. entitled to maintain such a covenant at As to the covenant for further assurance, law and to enforce it ; otherwise they can- Lord Cairns considered that as it could not object to this decree on that ground." only apply to title afterward acquired by 2 L. R. 10 Ch. Div. 15. fair means, it was not violated by a decree 3 In no class of cases to be found in the of foreclosure, or, in other words, that such books are the facts so complicated as in a decree did not take away from the pur- those under this branch of the law of chasers anything to which they were en- estoppel. 419 § 262.] OPERATION OP COVENANTS FOR TITLE [CHAP. XL subject to the mortgage of 1872) and Risdon (the holder of that mortgage) conveyed the property to Downs, clear of the mortgage, and Downs thereupon mortgaged the property to the defendants to secure moneys advanced by them to him to enable him to com- plete his purchase, and he put them in possession. The genuine title papers were, upon this transaction, handed to Downs, and by him to the defendants, the latter having no notice of the mortgage of May, 1873, from Downs to the plaintiffs, and the questions were, first, whether the defendants or the plaintiffs had priority, and secondly, whether the defendants were bound to deliver up to the plaintiffs possession of the property and the title deeds. It was urged for the plaintiffs that they claimed to have a title by estop- pel, 1 but in the course of the argument, Sir George Jessel, M. R., asked the question, " Can you produce any authority for the prop- osition that an estoppel can be created by covenant ? " and it was but lamely answered, 2 and without calling upon the defendants' counsel he decided both questions in their favor, considering that the doctrine of estoppel " by which falsehood is made to have the effect of truth " did not apply to the case. " No decided case has been produced," said he, " in which it has been held that the cove- nant that a man has a thing shall be considered as equivalent to a positive statement that he has it ; and therefore there is no authority in all the long line of cases which makes a covenant sufficient." 3 1 The argument being, "Although at 3 The Master of the Rolls in his judg- the time Downs executed his mortgage to ment said : " The whole doctrine of estop, us he held no legal estate, he — and all pel of this kind, which is a fictitious persons claiming under him — ■ became, by statement treated as true, might have been virtue of that mortgage, estopped from founded on reason, but I am not sure that denying that he had the legal estate ; and it was. There is another kind of estoppel the estoppel so created was 'fed' by the — estoppel by representation — which is legal estate which he afterwards acquired founded upon reason, and it is founded under the conveyance to him from White upon decision also. It is quite plain that and his mortgagees, so that the legal estate it is not every representation that will do thus became complete." for an estoppel, and it is not every state- 2 "We have not been able," replied ment that will do. In order to find out counsel, "to find any direct decision upon what sort of statement will do, you must the point in the book, or in any of the have recourse to authority; and, as far as cases on estoppel collected in Dart's Ven- I am concerned, I shall treat the authori- dors and Purchasers (5th ed., p. 810) ; but ties as binding and conclusive, for I am there is authority that in order to ascer- not going to inquire how they came to be tain whether a deed contains a sufficient decided in the way they were : there they averment of title, you must look at the are." He then considered the cases of whole deed and not merely at one particu- Heath v. Crealock, Bensley v. Burdon, and lar part of it." Eight v. Bucknell, (supra,) and ended by 420 262.] BY WAY OF ESTOPPEL. [CHAP. XI It would thus sufficiently appear that in England at the present day the effect of the doctrine of estoppel as applied to the actual transfer of title of the after-acquired estate is absolutely denied, and especially when it is invoked as against an innocent purchaser without notice. 1 saying : " The covenant is an agreement that if the mortgagor has not the power to convey the legal estate he will be liable in damages ; it is an agreement that he shall be treated as having it, and so be liable to an action if the statement turns out to be untrue : that is what it means. The cove- nant has uo other meaning, it is not a mere assertion that he has the legal estate, but an agreement really that if he has it not, be will pay for it. It is a bargain that he has the power to convey, but not an asser- tion that he has the estate ; and so it does not appear to me to be at all clear that that would amount to that precise aver- ment of a fact which is necessary in order to support the doctrine that a subsequent conveyance of the legal estate will, so to say, fill up the estoppel previously created. The last remark I think it necessary to make is this — that I see no reason for extending the doctrine. It can have no operation except in the case of third par- ties who are innocent of fraud and who have become owners for value ; and there can be no reason — as I intimated at the beginning of my judgment — that I am aware of, for preferring one innocent pur- chaser for value to another. As against the man himself or persons claiming with- out value, the purchaser of the mortgage can recover without any recourse to estop- pel at all; therefore, considering especially that the jurisdiction in equity and com- mon law is now vested in every court of justice, so that no action for ejectment, or, as it is now called, an action for the re- covery of land, can be defeated for the want of the legal estate where the plaintiff has the title to the possession, I think I ought not to attempt in any way to extend this doctrine by which falsehood is made to have the effect of truth. The doctrine appears no longer necessary in law; it ap- pears no longer useful, and, in my opinion, should not be carried further than a judge is obliged to carry it." 1 The law, though well settled, had been less definitively announced in England when the fourth edition of this treatise was pub- lished, and the author has omitted herefrom the somewhat elaborate notice in it of some cases (Bensley v. Burdon, 2 Sim. & Stu. 524 ; Faussett v. Carpenter, 2 Dow & CI. 232 ; Davis v. Tollemache, 2 Jurist, N. s., 1181) whose careful consideration seems now no longer necessary. Of Davis v. Tollemache, it need only be said that the defendant, who was tenant in tail in remain- der, mortgaged the estate with the usual covenant for further assurance. Subse- quently, the estate tail became vested in him in possession, and a disentailing deed was thereupon tendered to him for execu- tion, in order, as was claimed, that he might comply with the covenant for fur- ther assurance, and on his refusal, upon a bill filed to compel specific performance of the covenant, Stuart, V. C, said, "I can find no contract in this deed for enlarging the estate of the grantor to any extent ; and I conceive that unless there be words in the instrument which can show it was intended that the covenant for further as- surance should extend to enlarging the estate conveyed, and to barring interest in other persons than the grantor, the court is not justified in resorting to its extraordinary jurisdiction for specific per- formance to compel the grantor to execute an assurance of a kind that was not, and could not from the form of the instrument be thought to be, in his contemplation at the time when the grant by him was made," and the demurrer to the bill was allowed, and afterwards the bill was dismissed. See this case further referred to, infra, Ch. XV. This case was relied on by the defendant in Bankes v. Small, L. R. 34 Ch. D. 415, where a tenant in tail in remainder, who had disentailed without the concurrence of the tenant for life, and had sold with a covenant that he would execute every such disentailing and other assurance as the purchaser should reasonably require, and afterwards the tenant in tail died, but the 421 § 265.] OPERATION OF COVENANTS FOR TITLE [CHAP. XL § 203. It is believed that a careful examination of the hun- dreds of American cases upon this subject will show that in spite of a few mistakes in point of doctrine, and mistakes still fewer in consequence of practically enforcing results as logical deduc- tions therefrom, the true doctrine to be deduced from them can, with a single exception, be practically applied not only without disturbing any of the landmarks of the law, but in strict conso- nance with the general principles of jurisprudence. § 264. The following propositions may perhaps embody and harmonize the very large number of authorities upon the sub- ject : — I. The doctrine of the passage of the after-acquired estate rests upon a principle which is, or at times may be, salutary, being intended to carry out the real intention of the parties that a certain particular estate was to be conveyed and received ; and where that intention appears, the law will not suffer the grantor to defeat it. 1 II. Such an intention may be deduced either from averments, recitals, or the like, or from the presence of covenants for title, and it is immaterial what particular covenants these may be, so that they show the intention. 2 III. But the intention is not necessarily deduced from the covenants, and may appear by other parts of the deed. 3 IV. In many cases, to prevent circuity of action, it may be innocently held that the estate actually passes.* V. But this should not be suffered to work injustice by de- priving the first grantee of his legal right of action, i. e. his option to sue for breach of covenant. 5 VI. And the doctrine may often properly apply when there is no right of action. 6 VII. But the doctrine should never be applied against a pur- chaser without notice. 7 § 265. It may well be doubted whether the elaborate learning case was held not to apply. Kekewich, J., l Supra, §§ 245, 248. said that in the covenant in the deed before 2 Supra, §§ 248, 252, 255. him it must have been intended that when 8 Supra, § 255. an opportunity arose, and a disentailing 4 That is to say, where the question assurance could be properly executed, it arises between grantor and grantee, supra, should be done, which was much more § 256. than was covenanted for in Davis v. Tolle- 6 Supra, § 258. mache. In other words, the contracts in 6 Supra, § 251. the two cases were different. T Supra, § 259 et seq. 422 § 265.] BY WAY OF ESTOPPEL. [CHAP. XI. by which the doctrine is sought to be deduced from and con- nected with the law of warranty or the modern covenants for title, under the branch of estoppel, has any application whatever to such law. Practically it has not, for it has been seen that the doctrine is applied not only where all remedies growing out of warranty or of covenant are wanting, but where, in the absence of covenants, it is made to depend upon intention, indicated by recital or otherwise. No one can fail to perceive that with few exceptions the cases which have taken up this doctrine were correctly decided upon the facts presented, and objection should lie rather to the grounds of the decisions, which are sought to be based upon common law instead of upon equitable doctrine. For the result of the cases would seem to show that instead of giving effect to a rule of the common law, they are in fact ad- ministering equity through the medium of common law forms ; in other words, that they are enforcing the rights of the first purchaser as against his grantor as if upon a bill filed by the former to compel the transfer of the after-acquired title ; for to contend that such title actually passes by force of the covenants is met by the cloud of decisions where either there are no cove- nants at all, or where they are inapplicable or fail of effect, and yet where the subsequent title is held to pass. This ground fail- ing, the doctrine resolves itself into that recognized and applied in England from the earliest cases to the present day ; namely, that where one purports to convey a good title to another and afterwards acquires the same land under another title, there is an equity arising out of the contract to fasten it upon the new title. But the purchaser has no rights at law ; he can only enforce them in equity. Coming then into equity, when his bill is filed against his grantor or all claiming under him as privies, he prop- erly obtains relief. A subsequent purchaser from the grantor, however, has a stronger position than the grantor or his privies, and the statutory protection given him by the registry acts would, if there were no more in the case, prevail over the equity of the first purchaser. But again, there may come in still another equity on behalf of this first purchaser, viz. notice to the second purchaser, either by possession or any other recognized kind of notice, and this will in turn prevail against the protection of the registry acts. And if we accept the proposition that the American courts have practically been administering these equi- 423 § ™.] OPERATION OF COVENANTS FOR TITLE [CHAP. XL ties through the medium of common law forms, as is done at the present day in England, and in an increasing number of our own States, all technical difficulties disappear, and the cases are consistent, if not logical as to doctrine. 1 The doctrine, however, ceases to have any necessary connection with the law of covenants for title, and ceases to have any connection with the common law doctrine of estoppel. This would serve to harmonize all the cases except those which hold that the subsequent title passes to the first grantee, as against a subsequent purchaser without notice. These cases are wholly indefensible, and are opposed not only to the registry acts at law, but also to elementary principles of equity. Nor can such cases be sustained upon the ground that the doctrine has become a rule of property, for there is no rule of property in- volved in protecting a negligent purchaser who buys what his vendor has not got to sell. § 266. It sometimes happens that a purchaser in giving to his vendor a mortgage for the purchase money is required to insert in it general or absolute covenants for the title, and it has been at times urged that he is estopped by these covenants from avail- ing himself of any indemnity or relief to which he would otherwise be entitled by virtue of his vendor's covenants to himself. This strange contention is sought to be based upon the doctrine that " estoppels should be reciprocal," but has no foundation either in reason or authority. 2 Although the question was left undecided 1 In other words, in the majority of the cases decided, the courts, in endeavor- ing to administer substantial justice, have unconsciously been administering the doc- trines of equity, although professedly bas- ing the result upon certain supposed rules of the common law which really have no existence, and the decisions have practi- cally been reached by considering, first, what was the contract or intention of the original parties, (namely, whether a fee sim- ple or other definite estate was or was not intended to be conveyed,) and secondly, whether the rights of any innocent third party had intervened; and when it is found that the contract was for such a definite estate, and that no intermediate rights have intervened, or if there be a second purchaser, that such purchaser is so affect- ed with the doctrine of notice — whether 424 from record, possession, or other causes — that he might be a defendant against whom a decree would be obtained in a court of equity, then the subsequent title is decreed to be conveyed to the first pur- chaser, or, what is in a court of law sub- stantially the same thing, treated as having been conveyed or as having actually passed; and aliter, where equity would not decree a conveyance, or affect a second purchaser with notice, a fortiori in a court of law the estate will not be considered as having passed to his grantee. 2 In Lot v. Thomas, Penn. (N. J. ) 300, the court said: " If this doctrine were true, Lord Coke was not only justified in saying that estoppels were odious in law, but he might have gone further and added that they were detestable." 266.] BY WAY OF ESTOPPEL. [CHAP. XI. in a case in Massachusetts, 1 yet in one more recent it was held that the law of estoppel was inapplicable to such a case. 2 It is of course true that in general where a mortgage containing a gen- eral covenant of warranty is given, the mortgagor cannot set up an after-acquired estate to defeat his mortgagee's recovery, 3 yet this does not apply when the deed and mortgage are part of one and the same transaction, and the estate mortgaged is and purports to be no greater and no less than the estate conveyed. 4 The doctrine was stated with clearness in a case in New Hampshire, 5 where, in a suit brought by a mortgagor upon covenants contained in a deed made to him on the same day by the mortgagee, the court said : " The plaintiff's covenant is a direct allegation that there was no incumbrance when he made his deed, but it is no 1 Fitch v. Seymour, 9 Met. (Mass.) 468. 2 Sumner v. Barnard, 12 id. 461. 3 Cross v. Robinson, 21 Conn. 387 ; Plowman v. Shidler, 36 Ind. 484 (where the court said, "The fifth paragraph alleges that at the date of the mortgage the de- fendants had not, nor have they at any time since had, any title to the mort- gaged property. This answer is merely trifling, and deserves no further notice than to say it was had, and the demurrer was properly sustained to it") ; Boone v. Armstrong, 87 id. 169 ; Randall v. Lower, 98 id. 256. 4 For as was said in Randall v. Lower, supra, "By all the analogies of the law, upon all the principles of equity, a cove- nantor in a deed occupies towards one who mortgages back the land granted to him a position very different from that occupied by a mortgagee who did not undertake to create title in his mortgage. . . . Equity does not require that a grantee should mortgage back a greater estate than that his grantor professed to vest in him, nor can it be implied that a grantee in mortgaging back the land for the purchase money in- tended to grant an estate which the deed assumed to grant but which it did not vest in him." The only decision at variance with such an obvious doctrine seems to be Hitchcock v. Fortier, 65 111. 239, where Fortier in 1849, having a defective or no title, sold to McFadden who conveyed the premises in mortgage to his vendor, both deed and mortgage containing covenants of warranty. The next year, McFadden bought the paramount title, and in 1855 mortgaged the property, and in an action of foreclosure by Fortier, the first mort- gagee, the question was between her mort- gage in 1849 and the second mortgage in 1855, and the court, referring to the argu- ment on behalf of the latter that the title acquired by McFadden from the paramount owner should not inure to the benefit of Fortier, because the covenants in the mort- gage to the latter should be considered as relating only to the estate acquired by Fortier from McFadden, said, " There is, at its first presentation, a certain plausibil- ity in this view, but we do not, on consid- eration, deem it sound," and without the citation of authority decided in favor of the first mortgage. The authority of this decision was properly denied in Randall v. Lower, supra, and Mr. Bigelow (Estoppel, 4th ed., 404) justly pronounces it "not well considered," and it seems only necessary to suggest first, that upon the merits the vendor of an imperfect title, which presum- ably may have been sold at a proportion- ately reduced price, should not be allowed to profit by his purchaser's subsequent acquisition of a title not derived from him, and secondly, that under the recording acts the second mortgagee was not obliged to search for mortgages prior to the time (1850) when his mortgagor acquired the valid title. 5 Haynes v. Stevens, 11 N. H. 32. 425 § 266.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. admission that there was no incumbrance when the defendant made his deed. How does the covenant estop him from showing that there was no incumbrance at the date of his own deed in a suit against him on his covenant ? The defendant's deed must have preceded the plaintiff's deed. A warranty of title by the plaintiff does not prove that the defendant had title when he conveyed, for the plaintiff might then, or immediately after, have purchased in an opposing title, or removed an incumbrance. The fact that the plaintiff had a title when he thus reconveyed is perfectly consistent with the fact that the defendant had not a title when he conveyed to the plaintiff. Could it be said, if the defendants had mortgaged the land and then conveyed to the plaintiff, who mortgaged to the defendant, and then the plaintiff had extinguished the first mortgage, that the plaintiff should not recover of the defendants the sum he had thus paid, because his mortgage contained a covenant against incumbrances ? True, he covenants against incumbrances, but it is against those of his own creation, and not such as the defendants may have charged upon the land." So in a case in Maine, 1 one sold land with a general covenant of warranty, taking a purchase money mortgage containing a similar covenant. The mortgage was subsequently assigned and afterwards foreclosed. The mortgagee died insol- vent, when his widow, who had not joined in the original con- veyance, recovered her dower, which was paid by the owner of the land, who then sued on the covenant in the mortgage. But the court, in giving judgment for the defendant, said that when both a deed and the mortgage for the purchase money " contain covenants of warranty, the covenants are not considered to be mutually acted upon each by the other ; those in the mortgage do not estop the party claiming to recover upon those in the absolute deed. 2 The grantor in the absolute deed had sold the land ; the mortgagee had pledged it only, for the security of the purchase money. By the sale the grantor received a consid- eration, and is bound by his covenants to indemnify the grantee for all defects in the title, and for incumbrances existing at the time of the conveyance. 3 As between these parties, the pur- chaser really pledges nothing but the interest which he obtained i Smith v. Cannell, 32 Me. 125. 3 Citing Haynes v. Stevens, 11 N. H. 2 Citing Brown v. Staples, 28 id. 497. 28. 426 § 207.] BY WAY OF ESTOPPEL. [CHAP. XL under the deed to him, and is answerable to him for no imperfec- tion in the title existing before the conveyance. If the mortgage is redeemed, it has discharged its office as security, and ceases to be operative. If it is foreclosed, the title which passes by the absolute deed is restored to the grantor or those who claim under him. And the one having the mortgagee's right after foreclos- ure of the mortgage cannot be allowed to recover damages for a breach of the covenants therein made by the mortgagee, or existing at the time of his conveyance ; for the effect of such recovery would be to obtain all that he parted with in the con- veyance, and the value of the incumbrance which he is relieved from removing by the foreclosure. Such consequence would be unjust," And the law as thus stated is supported both by reason and authority. 1 Where, however, in a case in Massachusetts, the grantee in a deed containing covenants for title had mortgaged his estate to his grantor, and afterwards, by giving the latter possession under the mortgage became his tenant and was evicted by an elder title, it was held that the former was not entitled to sue upon the covenants in the deed to himself while such a rela- tion between the parties continued unchanged ; the eviction had not been of his possession, but of that of his grantor and mort- gagee. 2 1 Hubbard v. Norton, 10 Conn. 433 ; the feoffor and his wife, or the feoffor and Hardy v. Nelson, 27 Me. 528 ; Brown v. any other stranger, the warranty remain- Staples, 28 id. 497 ; Smith v. Cannell, 32 eth still ; or if two make a feoffment with id. 123, supra ; Sumner v. Barnard, 12 warranty to one and his heirs and assigns, Met. (Mass. ) 461 ; Hancock v. Carlton, 6 and the feoffee re-enfeoffeth one of the Gray, (Mass.) 61 ; Pike v. Goodnow, 12 feoffors, the warranty doth also remain." Allen, (Mass.) 474 ; Brown v. Phillips, So it was held in Kellog v. Wood, 4 40 Mich. 264 ; Geyer v. Girard, 22 Mo. Paige, (N. Y. ) 77, that a general warranty 160 ; Connor v. Eddy, 25 id. 72, where in a reconveyance made by a vendee to his the text was cited, and it was said that vendor will extend only to incumbrances " the law of estoppel has no application suffered by the former while he held the in such cases ; " Lot v. Thomas, Penn. estate. See also Ingalls v. Cooke, 21 Io. (N. J.) 300. So, "if a man makes a 560. feoffment with warranty, who enfeoffs the Mr. Bigelow says, "The case of a first feoffor upon condition that that war- mortgage given back by the purchaser to ranty remains, and he shall vouch by the vendor of an estate stands on a footing reason of the first warranty." Bointon & of its own. . . . The authorities indicate Chester's case, cited in Rolls & Osborn's some divergence in regard to the ground of case, 4 Leon. 251. So, in Co. Litt. 390, the rule, but the rule itself is clear." Es- it is said, " If a man make a feoffment in toppel (4th ed. ), 403, 404. fee, with warranty to the feoffee his heirs 2 Gilman v. Haven, 11 Cush. (Mass.) and assigns, and the feoffee re-enfeoffeth 330. 427 § 267.] OPERATION OF COVENANTS FOR TITLE [CHAP. XL § 267. The rule which in this country sanctions the admission of evidence to show that the consideration of a purchase was in reality greater or less than that expressed in the deed, has already been adverted to. 1 But the rule has been carried somewhat fur- ther than merely to sanction the admission of evidence to increase or diminish the consideration as to amount. Thus in a case in New Jersey, 2 the plaintiff by a deed containing a covenant against incumbrances conveyed land which he had previously mortgaged, and having after the sale discharged the incumbrance sued the purchaser for its amount on the ground that by an agreement between them the latter expressly agreed to pay off the mortgage. It was urged for the defendant that the plaintiff was estopped by his covenant against incumbrances from proving the existence of the mortgage or that the defendant undertook to pay it ; but the court held (the Chancellor and three of the judges dissenting) that in the first place the evidence offered was merely to show the nature and extent of the payment of the consideration, and therefore came within the doctrine of the American authorities ; and secondly, that the law of estoppel could not apply, as it was said that the question was one merely collateral to the deed, the action not being founded directly upon it. So in Massachusetts, 3 where one having conveyed land with a covenant against incum- brances sued his purchaser in assumpsit for taxes in arrear prior to the date of the deed, on the ground that by the terms of sale the latter had agreed to pay them, the court below rejected the evidence as inadmissible to contradict the covenant, but the judg- ment was reversed, and it was held that the tendency of the evi- dence was to prove either that there was no incumbrance on the estate conveyed at the time of the promise, or if there were, that the incumbrance was not within the true meaning of the cove- nant, as the defendant had previously become bound to pay the taxes. In neither case, therefore, did the evidence vary or con- tradict the terms of the covenant. If, however, it were not so, the objection would not be applicable to the present case, in which the question as to the construction and effect of the cove- nant was not raised. It was said, therefore, not to be necessary for the court to give a decided opinion upon the question whether in an action for the breach of the covenant the evidence rejected i Supra, § 173 et seq. 3 Preble v. Baldwin, 6 Cush. 549. 2 Bolles v. Beach, 2 Zabr. 680. 428 § 268.] BY WAY OP ESTOPPEL. [CHAP. XI. in this case would be admissible or not, 1 and in other cases the same rule has been approved. 3 § 268. The preceding classes of cases have chiefly turned upon the estoppel of the grantor. A few, however, may here be noticed respecting the estoppel of the purchaser caused by his acceptance of the conveyance. In some early cases in New York, it was held that the accept- ance of a grant was a conclusive admission of the title of the grantor, and therefore that in an action of dower brought by the widow of the latter the defendant was estopped from showing that the husband's title was defective, 3 and the same rule was occasionally applied elsewhere. 4 1 For the cases upon this point, see supra, § 88. 2 Drury v. Improvement Co., 13 Allen, (Mass.) 168 ; Strohauerv. Voltz, 42 Mich. 444. In the earlier case in Massachusetts of Eveleth v. Crouch, 15 Mass. 307, the law had been more strictly held in a case of some apparent hardship. A testatrix sold land to one whom she afterwards ap- pointed her executor, covenanting that she was lawfully seised, had good right to convey, and that the premises were free from incumbrances. The purchaser, being evicted after her death, credited himself, in the settlement of the estate, with $1,000 as damages arising from a breach of these covenants, and in reply to proof that he had himself formerly conveyed the same premises to the testatrix with sim- ilar covenants, and that the adverse title was paramount to his own originally and was covered by the covenants he gave, offered to prove that when he originally purchased it was merely as agent for the testatrix, that the consideration was paid by her, that he bought in pursuance of an agreement with her, and conveyed to her without receiving any consideration whatever. It was however held that " to admit the evidence offered would be to permit him directly to contradict his deed, in that he declared himself to be the owner of the land, and to have lawful right to convey it, and his express and un- equivocal covenants would be defeated by verbal declarations. ... If the appellant suffers, it is because he was incautious in the mode of conducting his business." So in New York, it was held in Squire v. Harder, 1 Paige, (N. Y.) 495, that one who had conveyed in fee with a covenant of warranty was estopped from alleging that he had such an interest in the con- sideration money as would raise a resulting trust in his favor. 3 Hitchcock v. Harrington, 6 Johns. (N. Y.) 290 ; Collins v. Tony, 7 id. 278 ; Davis v. Darrow, 12 Wend. (N. Y.) 65 ; Bowne v. Potter, 17 id. 164 ; Sherwood v. Vandenburgh, 2 Hill, (N. Y.) 308, "The objection of the want of seisin in the hus- band," said Kent, C. J., in Hitchcock v. Harrington, supra, ' ' cannot be received from the defendants, as they hold under the husband by virtue of conveyances from his son and heir at law. The husband died in possession, and it ought not to be permitted to the heir, or person claim- ing under him and enjoying the estate, to deny the seisin of the ancestor. . . . The tenant claims title under the seisin of the husband, and cannot be permitted to avail himself of this defence in bar of the demandant's right of dower." * Gayle v. Price, 5 Rich. (S. C.) 525 ; Hains v. Gardner, 1 Fairf. (Me.) 383 ; Hamblin v. Bank of Cumberland, 19 Me. 69 ; Stimpson v. Thomaston Bank, 28 id. 259, where it was held that where two grantors conveyed land, with a covenant that they were lawfully seised thereof and would defend the same, the grantee was held to be estopped, in an action of dower by the widow of one of them, from show- 429 § 268.] OPERATION OF COVENANTS FOR TITLE [CHAP. XI. In Massachusetts it was, however, said that " the grantee may be permitted to show that his grantor was not seised, as is every day allowed in actions of covenant ; " 1 and in England it has been held that the acceptance of a conveyance did not estop the grantee, in an action of dower brought by his grantor's widow, from showing that the premises were leasehold, instead of free- hold as described in the deed. 2 And in New York, moreover, very soon after the decisions referred to, their rule was followed in one case with reluctance and solely on the ground of adherence to precedent, 3 and soon after, it was held that whatever might be the rule where posses- sion had accompanied the deed, yet where there was no such possession there would be no estoppel. 4 In the later case, how- ever, of Kingman v. Sparrow, 5 the whole doctrine was reconsidered on the grounds both of principle and authority, and the prior decisions overruled. The doctrine as given by Coke, that an estoppel was caused " by the acceptance of an estate," 6 was properly referred, in its application, to the system of common law assurances by feoffment, " which operated on the possession, and if correctly pursued always passed a freehold or fee simple to the feoffee. But in the case of a conveyance by grant, bargain and sale, or release, the very point is whether an estate existed in the grantor, and has passed, to be accepted." The subject was soon after again elaborately reviewed in two cases, 7 and the same view of the law taken, and the case of Sparrow v. Kingman was sub- sequently affirmed on error ; 8 so that the law may now be con- sidered as settled in New York, in accordance with principle, that the mere acceptance of a deed, whether with or without covenants, will not estop the grantee from controverting his grantor's title, either as against himself or any one claiming under him, 9 and ing that the surviving grantor was seised 4 Osterhout v. Shoemaker, 3 Hill, of a greater proportion and the deceased (N. Y. ) 518. of a less one than an undivided moiety 6 12 Barb. S. C. 208. thereof; but the later cases in Maine have, 6 Co. Litt. 352 a. following those in New York, receded 7 Averill v. Wilson, 4 Barb. S. C. from this application of the doctrine of (N. Y.) 180; Finn v. Sleight, 8 id. 406. estoppel. See infra, p. 431, n. 1. 8 Sparrows. Kingman, 1 Comst. (N. Y.) 1 Small v. Proctor, 15 Mass. 495 ; Fox 245. v. Widgery, 1 Greenl. (Me.) 218. 9 Of course, however, such a rule does 2 Gaunt v. Wainman, 3 Bing. K C. 69. not apply in the case where a vendee ob- 3 Sherwood v. Vandenburgh, 2 Hill, tains and keeps possession of land under a (X. Y. ) 307. contract of sale which is not fulfilled; 430 § 269.] BY WAY OF ESTOPPEL. [CHAP. XI. the weight of authority throughout the country is now to the same effect. 1 It has, however, been held that where at the time of the con- veyance the purchaser already lias in himself the valid title to the premises, he is estopped by his acceptance of the conveyance from suing on the covenants it contains, 2 for " they only extend to a title existing in a third person which may defeat the estate granted by the covenantor — they do not embrace a title already vested in him, and it never can be permitted in a person to accept a deed with covenants of seisin, and then turn round upon his grantor and allege that his covenant is broken, for that at the time he accepted the deed he himself was seised of the premises." 3 § 269. In a modern English case it seems to have been doubted whether, when a deed contained a recital of title, the purchaser upon being evicted was not estopped from denying the accuracy of such recital in an action on his covenants for title, 4 but where the recital was intended to be the statement of one party only, such a doctrine might operate with injustice, and in a subsequent case it was expressly denied, and it was held that when a recital was intended to be a statement which all the parties to the deed have mutually agreed to admit as true, it was an estop- pel upon all, but when intended to be that of one party only, as he will, of course, under such circum- the latter from disputing the grantor's stances, be estopped from setting up a seisin prior to the conveyance, but in the defect in the title, either as a defence to later case of McCusker v. McEvey, 9 id. an ejectment or in a suit for the purchase 535, this was said to be merely obiter die- money. This, however, obviously depends turn, and not to be regarded as binding upon different principles. See the note authority. In Massachusetts it was held to Duchess of Kingston's case, 2 Smith's in Porter v. Sullivan, 7 Gray, 441, that Lead. Cas. » the acceptance of a deed with covenants of 1 Patterson v. Johnson, 113 111. 570 ; general warranty of upland on the shore, Foster v. Dwinel, 49 Me. 44 ; McLeery and of another deed at the same time from v. McLeery, 65 id. 173 (distinguishing the same grantor of the flats in front Lewis v. Meserve, 61 id. 374) ; Clee v. thereof, with a limited covenant of war- Seaman, 21 Mich. 287 ; Macklot v. Du- ranty, did not estop the grantee from breuil, 9 Mo. 483 ; Joeckel v. Easton, 11 claiming title to the latter, and the same id. 118 ; Landes v. Perkins, 12 id. 239; doctrine was applied in Craig v. Lewis, Blair v. Smith, 16 id. 273 ; Cutter v. 110 Mass. 377. Waddingham, 33 id. 282. In Gardner v. 2 Beebe v. Swartwout, 3 Gilm. (111.) Greene, 5 R. I. 104, it seems to have been 179 ; Furness v. "Williams, 11 111. 229 ; held that the acceptance of a deed-poll Fitch v. Baldwin, 17 Johns. (N. Y.) 166. with covenants of warranty, followed by 3 Fitch v. Baldwin, ubi supra. possession by the grantee, did not estop 4 Young v. Raincock, 7 C. B. 310 431 § 269.] OPEEATION OP COVENANTS FOR TITLE, ETC. [CHAP. XI. the estoppel was confined to that party. 1 So in Mississippi, it was held that a purchaser who had received a deed with cove- nant of warranty, " excepting only the widow's right of dower," was not estopped by the exception from denying the fact of the marriage. 2 i Stroughill v. Buck, 14 Q. B. 781. 2 Stevenson v. McBeary, 12 Sm. & Marsh. (Miss.) 57. •432 § 270.] IMPLIED COVENANTS FOR TITLE, ETC. [CHAP. XII. CHAPTER XII. IMPLIED COVENANTS FOR TITLE, AND HOW COVENANTS MAY BE LIMITED OR QUALIFIED. § 270. Both at common law and by statute were certain cove- nants for title implied in the creation and transfer of estates, whether of freehold or of leasehold. Of these, the earliest was of course warranty, which, as has been already seen, was by the old common law an incident to the creation or transfer of every estate as the return for homage. 1 The lord was bound to warrant or insure the fief against all persons whomsoever claiming by title, and in case of its loss to replace it with another. And when, later, it became usual to authenticate the creation or transfer of estates by charters or deeds, a warranty was, in the case of a free- hold, implied from the word of feoffment, dedi, but from no other word ; 2 and in the case of a leasehold a covenant was im- plied from the word of leasing, demisi, or from any equivalent word, such as concessi or the like. 3 So too in the case of an ex- change, a warranty was implied from the word of exchange, ex- cambium, but from no other word ; 4 and finally, in the case of a partition, (which it is familiar was only allowed by the common law as between parceners,) a warranty was implied from the par- tition itself ; 5 and in both of these last cases — exchange and par- 1 Supra, § 2. Mostyn v. West Mostyn Co., L. R. 1 C. P. 2 Co. Litt. 384 a. For although in Div. 145. In Style v. Hearing, Cro. Jac. the statute cle bigamis (to be presently 73, it was " resolved by all the justices noticed) "dedi et concessi are coupled to- that upon the words demise and grant, gether, yet these words ratione doni pro- without other words which comprehend prii, do appropriate the warranty to dedi any warranty in them, this action well only, and agreeable to this exposition in lies." our books is the common and constant i Co. Litt. 51 b, 384 ; Gamble v. Mc- opinion of learned men at this day." 2 Clure, 69 Pa. 282 ; Hart v. Windsor, 12 Inst. 276. See infra, p. 436, n. 3, for some M. & W. 68. dicta to the contrary, now overruled. 5 Co. Litt. 174 ; Bustard's case, 4 Rep. 8 Co. Litt. 45 b ; Andrew's case, Cro. 121 ; Allnatt on Partition, 158 ; Miller on Eliz. 214 ; Nokes' case, 4 Rep. 81 ; Spen- Partition, 245. cer's case, 5 id. 16 ; Touchstone, 160, 165 ; 28 433 § 270.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. tition — not only was there an implied warranty, but an implied condition of re-entry, which in case of the eviction of either party from the land taken in exchange or allotted in partition gave to the party evicted a right of re-entry on the other portion. 1 1 It is true that it has been suggested by distinguished authority that in the creation of a freehold there were other words besides those already mentioned which implied a warranty. Lord Hard- wicke is reported to have said, in Mann v. Ward, 2 Atk. 22S, "When a man has granted and conveyed, be the right real or pretended, the very words grant and convey imply a warranty and a covenant for quiet enjoyment;" and some years after he again remarked, in Clarke v. Sam- son, 1 Ves. 100, " It is said the vtor&grant of itself imports a covenant, which it does at law, but that is where there is no par- ticular covenant, which there is here." Lord Eldon, moreover, when Chief Jus- tice of the Common Pleas, observed in Browning v. Wright, 2 Bos. & Pull. 13, " Now these words granted, bargained, sold, enfeoffed, and confirmed certainly import a covenant in law, the effect and meaning of which would be affected by the subsequent words of the indenture." To which B tiller, J., added: "According to the ancient mode of conveyance, deeds were confined to a very narrow compass. The words grant and enfeoff amount to a general warranty in law, and have the same force and effect. The covenants, therefore, which have been introduced in more modern times are intended for the protection of the party conveying, and are introduced for the purpose of qualifying the general warranty which the old com- mon law implied." And this, he added, had been settled since Nokes' case. But all these expressions were dicta, and no authority whatever was cited in support of them, except by Buller, J. Nokes' case (4 Rep. 81) was not a conveyance of a free- hold but a demise of a term ; and when it is there said that " for this covenant in law upon these words, demise, grant, etc., the assignee shall have a writ of cove- nant," this is applied only to the case of a lease. See infra, § 272. The question whether the words grant and enfeoff ere- 434 ated either a covenant or a warranty in the case of a freehold was presented in Brown v. Haywood, 3 Keb. 617, s. c. Freem. 414, and decided in the negative ; and in Spencer's case, 5 Rep. 16, "it was resolved by Wray, C. J., and the whole court, that this word (concessi or demisi), in case of a freehold of inheritance, does not import any warranty." See also Vin. Abr. Covenant, C. 19. Mr. Evans, in a note to Stat. 4 Edw. I. (1 Coll. of Statutes, 192), observes "that it is singular that a judge of such eminence as Mr. J. Buller should have stated that the words grant and enfeoff amount to a general warranty in law, and have the same force and effect, and should refer to Nokes' case as settling that point, as Nokes' case relates to the demise of a term, in which the words demise and grant operate as a covenant." But, as has been said, none of these expressions were necessary to the decisions, and in the year 1804 the ques : tion was directly presented in New York in Frost v. Raymond, 2 Caines, 188, where it was conclusively shown that the words grant, bargain, sell, alien, and confirm im- ply no warranty whatever by the common law in the creation of a freehold, a war- ranty being implied only from the word do or dedi. After referring to the war- ranty implied by the word grant in case of a leasehold, Kent, C. J., said: "We are 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 is now become merely technical, but it is suffi- cient that it clearly exists, and we are certainly not at liberty to confound the words or change their established opera- tion. The other words in the deed, ' bar- gain, sell, alien, and confirm,' have never been considered as implying any covenant whatever in any case. The only diet inn that appears to oppose the law as now laid down is that of Lord Eldon in the case of 271.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. Such was, briefly, the common law as to implied warranty, which was termed " warranty in law." Its effect in these four classes of cases will be considered after we have referred to the statutory alteration of the common law. § 271. Its first alteration was by the statute de big amis, which, in the year 1276, limited the warranty implied from the word dedi to the life of the grantor in all cases in which homage was not an incident of the tenure. 1 Then when, in 1290, the statute of quia emptores practically put an end to homage as an incident of tenure, it of course followed that in every case coming within the statute the word dedi implied a warranty during the life of the grantor and no longer. 2 In cases, however, in which privity of estate and tenure still subsisted, as for example where any rever- sion was left in the donor, the warranty remained as at common law, and therefore " if a man make a gift in tail, or a lease for life of land by deed, or without deed, reserving a rent, or of a Browning v. Wright," and to this view of the law consistent assent has been given in this country. Young v. Hargrave, 7 Ohio, 394 (part 2, p. 63) ; Black v. Gil- more, 9 Leigh, (Va.) 449 ; Gee v. Pharr, 5 Ala. 588 ; Allen v. Sayward, 5 Greenl. (Me.) 230 ; Bates v. Foster, 59 Me. 158 ; Kickets v. Dickens, 1 Murph. (N. C. ) 346 ; Deakins v. Hollis, 7 Gill & Johns. (Md.) 311 ; Huntly v. Waddell, 12Ired. L. (N. C. ) 33. Lord Eldon's dictum was, indeed, directly approved by Huston J., in Christine v. Whitehill, 16 Serg. & Eawle, (Pa.) Ill, but the case was decided by a bare majority of the court and was overruled in Whitehill v. Gotwalt, 3 Pa. (old Pa., not Pa. St.) 326, in an able opinion by Kennedy, J. 1 Supra, § 4. Mr. Bigelow has said (Estoppel, 4th ed., 408, note) in regard to the statute de bigamis (4 Ed. I. c. 6) : " Writers from Coke down have spoken of this statute as though the warranty was raised by reason of the words ' dedi et concessi.' These words are merely descriptive of the conveyance intended, to wit, a feoffment. The warranty was annexed, because a fief was given." The error thus criticised may be more appar- ent than real. Unquestionably the war- ranty resulted from the fact of feoffment, not from the words used to express it, and this was what the present writer meant in stating {supra, § 4) that " the warranty which naturally flowed as part of the reciprocal consequence of feudal tenure could not be modified by an ex- press warranty," and [infra, § 275) that " the warranty implied from the word of feoffment, dedi, . . . arose, . . . from ten- ure." But the fact of feoffment had to be expressed by certain words, and the indispensable word was dedi ; hence it was also indispensable to an implied warranty of an estate in fee, and the use of such expressions as "the warranty implied from the word dedi " was perhaps un- avoidable. 2 Supra, § 6. And hence the intro- duction of express warranties, by the word warrantizo, became common. Indeed, says Blackstone, " In other forms of alienation gradually introduced since that statute, no warranty whatsoever is implied, they bearing no sort of analogy to the original feudal donation. And therefore in such cases it became necessary to add an ex- press clause of warranty to bind the grantor and his heirs, which is a kind of covenant real, and can only be created by the verb warrantizo, or warrant." 2 Comm. 300. 435 § 271.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. rent service by deed, this is a warranty in law, and the donee or lessee being impleaded shall vouch and recover in value." 1 Of course the old common law knew nothing of a warranty being limited to the acts of the lord only or of those claiming under him — he was bound to warrant and defend the fief against all persons claiming it under paramount title 2 — and when, in later times, warranty was limited to the acts of the grantor him- self, or sometimes of particularly named persons, yet this express warranty did not limit or restrain the general implied warranty, and "dedi was a general warranty during the life of the feoffor." 3 And, equally of course, the remedy upon an implied warranty was the same as that upon an express warranty, 4 that is to say, by voucher in some cases and by warrantia chartce in others. 5 But there was a difference between them as to who were bound or benefited by them. In all cases coming within the statutes 1 Co. Litt. 384 b; Fitzh. Nat. Brev. 134. And the burden of this warranty bound the heirs of the grantor and the assignees of the reversion, and its benefit inured to the assignees of the grantee. 2 Touchstone, 166, 167. But not, of course, against trespassers. See supra, §127. a " For if a man make a feoffment in deed by dedi, and in the deed doth war- rant the land against J. S. and his heirs, yet dedi is a general warranty during the life of the feoffor." Co. Litt. 384. And so says Coke, in Nokes' case, 4 Rep. 81, "I heard the Lord Dyer and the whole court of C. P. (Hil. 14 Keg. Eliz.) resolve that if a man make a feoffment by this word dedi, and with express warranty in the deed, he may use the one or the other at his election." So in Bantt>. Cock, Cro. Eliz. 864 ; Trenchard v. Hoskins, Litt. 64 ; Johnson v. Procter, 1 Bulst. 3 ; Butler's note to Co. Litt. 384 a. It was neverthe- less held in Kent v. Welch, 7 Johns. i X. Y.) 259, that the covenant implied by the word " give " was restrained by an express covenant for title which the deed mighl contain, and the decision was based upon Nokes' case, and similar decisions were made in Morris v. Harris, 9 Gill, (Md.) 27, and Bricker v. Bricker, 11 Ohio St. 240 ; and see Weiser v. Weiser, 436 5 Watts, (Pa.) 284. Rhea v. White, 3 Head, (Tenn.) 126, contains only a dictum to that effect ; the sale was of a slave. Nokes' case, however, decided that im- plied covenants in a leasehold were, as will be presently seen (infra, § 275), restrained by express covenants, but this doctrine was never applied at common law to the implied warranty of a freehold. In Dow v. Lewis, 4 Gray, (Mass.) 473, it was said, ' ' That in a feoffment at common law, the word dedi, 'give,' implied, in the absence of express covenants, a warranty during the life of the grantor, is well settled. Co. Litt. 384 a ; 2 Inst. 275. But we know of no authority or sound reason for extend- ing this technical rule to an instrument which purports to be and is but the exe- cution of a power given by statute, and in which the grantor neither assumes to have nor to convey any estate, title, or interest of his own." And hence it was obviously held that no warranty could be implied from the use of this word in a deed from a sheriff or other officer of the law (see supra, § 37) ; and in Webster v. Con- ley, 46 111. 14, this case was approved and the same doctrine applied to the case of a lease made without authority by a guardian. 4 Fitzh. Nat. Brev. 312. 5 See supra, § 11. § 272.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. de bigamis and quia emptores, as the warranty endured no longer than the life of his grantor, his heir was not bound. 1 As to the benefit of the warranty, this in the case of implied warranty descended upon the heir of him who had received the land if the latter died in the lifetime of his warrantor, 2 but it did not pass with the land to an assignee of the warrantee; 3 in other words, the implied warranty did not run with the land. In the case of express warranties, the burden descended upon the heirs of the warrantor, and the benefit to the heirs and assigns of the war- rantee, but only when these parties were expressly named. 4 § 272. With respect to estates less than freehold, covenants for title were from the earliest times implied not only from the words of leasing, " such as demisi, concessi, or the like," 5 but even from 1 That is to say, the heir was not liable unless the eviction were in the time of the ancestor. But if the ancestor had died after the eviction, no doubt recovery in value could have been had against the heir. 2 Co. Litt. 384. 3 For in Spencer's case, "it was re- solved that if a man make a feoffment by this word dedi, which implies a warranty, the assignee of the feoffee shall not vouch." 5 Coke, 17. i Co. Litt. 384 b. 5 Supra, § 270. And on the other hand the words yielding and paying implied a covenant on the part of the lessee to pay the rent reserved. Butler's note to Co. Litt. 384 a ; Bac. Abr. Covenant, B ; Eoyer v. Ake, 3 Pa. (old Pa., not Pa. St.) 465. Some old cases decided that these words have a still larger signification, and make an express covenant ; Hellier v. Casbard, 1 Sid. 266 ; Newton v . Osborn, Styles, 387 ; Porter v. Swetnam, id. 406- 431 ; but even in their own day their authority was doubted ; Anon. 1 Sid. 447; note to Thursby v. Plant, 1 Saund. 241 ; Harper v. Burgh, 2 Lev. 206 ; and later cases have since consistently held that the covenant thus created is implied ; Webb v. Russell, 3 Term, 393 ; Mills v. Auriol, 4 id. 94 ; Vyvyan v. Arthur, 1 Barn. & Cress. 410 ; Iggulden v. May, 9 Ves. 325; Kunckle v. Wynick, 1 Dall. (Pa.) 305 ; Kimpton v. Walker, 9 Verm. 191. The question is of practical importance, as, if the covenant is express, the lessee is still bound to his lessor for the rent, notwith- standing an assignment of the term and acceptance of the rent by the lessor from the assignee ; Mills v. Auriol, supra ; Ghegan v. Young, 25 Pa. 18 ; while it is otherwise if the covenant is merely im- plied ; Walker v. Physick, 5 Pa. 193 ; Fanning v. Stimson, 13 Io. 42. In Piatt on Covenants, pp. 10-18, the doctrine that a grantee by indenture, ex- ecuted by the grantor only, is bound by the covenants therein because he has accepted it, was controverted, but admitted to have been perhaps too long sanctioned to be reversed ; and it was expressly denied (p. 16) that the law had ever been so held as to a grantee by deed-poll. Piatt's view as to deeds-poll was recognized as correct in Pennsylvania and Massachusetts; Maule v. Weaver, 7 Pa. 329 ; Maine v. Cumston, 98 Mass. 317 ; Martin v. Drinan, 128 id. 515 ; but denied in New York and North Carolina ; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35 ; Bowen v. Beck, 94 id. 86; Maynard v. Moore, 76 N. C. 153 ; and the latter cases would appear to be the better law. In New Jersey, the case of an in- denture purporting to be inter partes, though executed by the grantor alone, is held an exception to the general rule that covenant can only be brought on an in- strument signed and sealed by the de- fendant or by his authority. Finley v. Simpson, 2 Zab. (N. J.) 311 (containing an able examination of the authorities by 437 § 272.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. the relation of landlord and tenant, 1 and such is the law at the present day, 2 unless where, as in some of the United States, it has been altered by legislation. 3 It is sufficiently obvious, however, counsel) ; Sparkman v. Gove, 44 N. J. L. 252. In Harrison v. Vreelancl, 38 id. 366, however, the doctrine of Finley v. Simp- son was expressly restricted to the case of an indenture, and held not applicable to a deed-poll. In Burbank v. Pillsbury, 48 N. H. 475, the point was noticed, but not decided. But as in Pennsylvania it was formerly common, in cases of sales of land reserving a ground-rent, to have the deeds in duplicate, but executed each by one party only, that is, one exe- cuted by the grantor conveying the land, and the other by the grantee covenant- ing to pay the rent, a statute has pro- vided that "in all cases now pending or hereafter to be bi-ought in any court of record in this Commonwealth to en- force the payment of ground-rent due and owing upon lands or tenements held by virtue of any lease for life, or a term of years, or in fee, the lessor, his heirs and assigns, shall have a full and complete remedy therefor by action of covenant against the lessee or lessees, his, her, or their heirs, executors, administra- tors, or assigns, whether the said prem- ises out of which the rent issues be held by deed-poll or otherwise." Act of 25th April, 1850, § 8, Purdon's Digest, p. 861. 1 See infra, § 274. 2 Merrill v. Frame, 4 Taunt. 329 ; Baber v. Harris, 9 Ad. & Ell. 532 ; Wil- liams v. Burrell, 1 C. B. 402 ; Frost v. Raymond, 2 Caines, (N. Y.) 194 ; Gran- nis v. Clark, 8 Cow. (N. Y.) 36 ; Barney v. Keith, 4 Wend. (N. Y.) 502 ; Tone v. Brace, 11 Paige, (N. Y.) 569 ; Sumner v. Williams, 8 Mass. 201 ; Dexter v. Man- ley, 4 Cush. (Mass.) 14 ; Knapp v. Marl- boro, 3 Wms. (Verm.) 282; Maeder v. City of Carondelet, 26 Mo. 115. It has been denied in New Hampshire that any such effect can be implied from the words " let and lease ; " Lovering v. Lovering, 13 N. H. 517 ; and the decision is sought to In- based upon the absence of these words in the older authorities. The only difference would seem to be that they use 438 the Latin word demisi, of which " I have leased " seems certainly a fair translation (see Maule v. Ashmead, 20 Pa. 482, infra, p. 440, n. 1); and apart from this, the cases use the expressions "grant, demise, etc.," or "grant, demise, and the like," which would seem to infer that they meant a covenant to be implied from any words of leasing ; and in Eldred v. Leahy, 31 Wis. 546, it was considered to be " well settled at common law that a covenant for quiet enjoyment is implied in every mutual con- tract for the leasing and demise of land, by whatever form of words the agreement is made." In Black v. Gilmore, 9 Leigh, (Va.) 448, the court took it for granted that in a lease the words "rent and lease " would imply a covenant ; " for a lease for years is looked upon in the law less as a conveyance of an estate than as a contract for the possession." 3 The New York Revised Statutes (part 2, c. 1, art. 4, § 140, also Rev. St. 1882, p. 2195) declare that "no covenant shall be implied in any conveyance of real es- tate, whether such conveyance contain special covenants or not" (and a similar enactment is found in Michigan, Minneso- ta, Oregon, Wisconsin, and Wyoming, see infra, § 286) ; and in Kinney v. Watts, 14 Wend. 39, this was held by the Su- preme Court to extend to leases, but in Tone v. Brace, when before the Vice-Chan- cellor (1 CI. Ch. 509), this was denied and the statute held not to extend to leases, they not being " conveyances of real es- tate " within the meaning of the statute, and this on appeal was affirmed by the Chancellor, 8 Paige, 597; 11 id. 569. In the later case in the Supreme Court of Baxter v. Ryerss, 13 Barb. S. C. 2S4, the correctness of this decision was doubted, but in the subsequent case of Mayor of New York v. Mabie, 3 Kern. 160, the Court of Appeals, after citing Tone v. Brace, was "satisfied that the construction adopted by the Chancellor is the true one, and that there is nothing in the provision of the Revised Statutes under examination which 273.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. that no covenants for title are implied in the assignment of a leasehold. 1 § 273. The covenants for title thus implied from the words of leasing were and are two — first, a covenant that the lessor has the power to demise, 2 and secondly, a covenant for quiet en- joyment 3 — and both of these covenants are, of course, as are all common law implied covenants, general or unlimited. prohibits us from finding in the grant in question an implied covenant against the acts of the grantor and others claiming by lawful title. The result would he the same if the question had arisen upon a lease for years of land." And this decision has been approved in the more recent cases in that State; Vernam v. Smith, 15 N. Y. 333 ; Doupe v. Genin, 1 Sweeney, 25 ; Sandford v. Travers, 40 N. Y. 144 ; Mack v. Patch- in, 42 id. 174 ; Lynch v. Onondaga Salt Co., 64 N. Y. S. C. 558; Boreel v. Law- ton, 90 N. Y. 293 ; though in Gallup v. Albany Railway, 7 Lans. 471, it seemed to be thought doubtful whether in all leases, without regard to form or language, there is an implied covenant for quiet en- joyment. In Oregon (Gen. L. 1874, p. 516), Michigan (Howell's Stat. 1882, § 5655), Wisconsin (Rev. St. 1873, § 2204), Min- nesota (Gen. St. 1881, p. 535), and Wyo- ming (Coinp. L. 1876, p. 5), there are sim- ilar statutes to that in New York, and in the first named of these States the same general construction has been given to it. Edwards v. Perkins, 7 Or. 149 ; and see infra. 1 Landydale v. Cheyney, Cro. Eliz. 157. "Although the word grown! or demise," it was said in Blair v. Rankin, 11 Mo. 442, " create an implied covenant against the lessor, yet it is nowhere said that the same words will, in an assignment, create an implied covenant against the assignor. The object and intent of the parties in making an assignment is to put the as- signee in place of the lessee, and when that is done the assignor ceases to have any further concern with the contract un- less he has bound himself by express cove- nants." (In the subsequent case of Wood- burn v. Renshaw, 32 id. 197, this view of the law must have been taken for granted, or the case would have been differently decided.) So in Waldo v. Hall, 14 Mass. 486, one "granted, bargained, and sold" a lease, and the assignee was evicted by a title paramount to that of his assignor, and it was held that the latter was not liable, — that these words created no cove- nant in an assignment. 2 Holder v. Taylor, Hob. 12 ; Cloak v. Harper, Freem. 121; note to 1 Saund. 329; Frazer v. Skey, 2 Chitty, 646 ; Line v. Stephenson, 5 Bing. N. C. 183 ; Burnetts. Lynch, 5 Barn. & Cress. 609, per Little- dale, J. ; Mostyn v. West Mostyn Co., L. R. 1 C. P. Div. 145 ; Grannis v. Clark, 8 Cow. (N. Y.) 36 ; Crouche v. Fowle, 9 N. H. 219; Wade v.Halligan, 16 111. 508; Streeter v. Streeter, 43 id. 161. The words of leas- ing, however, cannot, it would seem, be made to imply a covenant of greater scope than for title. In Hinde v. Gray, 1 Man. & Grang. 413, the defendant demised to the plaintiff a brewery, " and also the ex- clusive and such other privilege as the de- fendant then enjoyed of supplying ale, etc. to certain public houses then the de- fendant's property or under his control, that is to say, the Punch Bowl," etc. The declaration averred, in covenant, that the defendant leased the Punch Bowl to an- other, who bought his ale elsewhere. On special demurrer, the court held that the declaration should have shown what the privilege of the defendant was, and it was doubted if the word demise had ever been held to amount to a covenant except when connected with land. And to the same effect are Howard v. Doolittle, 3 Duer, (N. Y.) 474; Banks v. White, 1 Sn. (Tenn.) 614 ; Carson v. Godley, 26 Pa. 117. 3 See the cases cited in the preceding note, and Vernam v. Smith, 15 N. Y. 332, supra; Mayor v. Mabie, 3 Kern. (N. Y.) 160 ; Duff v. Wilson, 69 Pa. 318. 439 § 274.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. § '27-1. In the absence, however, of words of leasing, as for instance where the lease is by parol, it is well settled that the law will imply a covenant for quiet enjoyment from the mere relation of landlord and tenant, 1 but it seems to be at least doubt- ful whether a covenant that the lessor has the power to demise will be so implied. Thus in a case in the Exchequer, 2 the plaintiff declared in i Bandy v. Cartwright, 8 Exch. 913 ; Carson v. Godley, 25 Pa. 117; Ross v. Dysart, 33 Pa. 453 ; Dexter v. Manley, 4 Cush. (Mass.) 14; and see the other cases hereafter cited in this connection. In the case in Pennsylvania of Maule v. Ashmead, 20 Pa. 482, the widow of an intestate made a parol lease for five years, and afterwards, as administratrix, presented a petition to the proper court for the sale of the prem- ises for the payment of the debts of the estate, under which proceeding the tenant was evicted by the purchaser, and brought assumpsit against the administratrix for not having permitted him to enjoy the possession. The court below nonsuited the plaintiff, but this, after being twice argued, was reversed on error, and it was held that the plaintiff was entitled to re- cover. The court said, per Black, C. J. : "A farm was leased for five years. The tenant went into possession, and improved the property at a great expense of money and labor, so that its produce for the last two years would have been worth much more than it was at any time previous. But at the end of three years he was turned out, and he brings this action to recover compensation for his loss. This is one of those hard cases which sometimes are said to make bad precedents. But every member of the court is clearly of opinion that the law of the case, as well as its merits, is with the plaintiff, and that his technical right to recover is not less plain than the justice of his demand. It is not denied that the word demisi, in a lease, implies a covenant for quiet enjoy- ment during the term. That word was not used here, for the lease was made by parol, and the parties did not understand Latin. But the word lease is a fair translation of demisi, and ought to be and is interpreted in the same way by the courts." In the 440 argument, the cases of Granger v. Collins and Messent v. Reynolds were relied on by the defendant, and the Supreme Court had at first determined to affirm the judg- ment, and the opinion to that effect was written. 2 Bandy v. Cartwright, 8 Exch. 913. In the previous case of Granger v. Collins, 6 Mees. & Welsb. 458, the declaration in assumpsit averred that the defendant held the land for the residue of a term of years, and agreed to let the same to the plaintiff, who then agreed to take them at a certain rent, and in consideration of the premises the defendant promised the plaintiff that he should quietly hold and enjoy during the said term, but that nevertheless he was evicted by the party entitled to the reversion, and it was held, on demurrer, that the declaration was bad, as, said Lord Abinger, " If the plaintiff originally be- came tenant to the defendant without any agreement as to the eviction, the law would not afterwards impose such a lia- bility on the defendant as is here stated. No such liability arose from the simple relation of landlord and tenant, and that, we think, is the relation on which the plaintiff has declared. The promise is laid more largely than the law will imply from such a relation." The report of this case is rather unsatisfactory, for the cove- nant attempted to be set up woidd seem to be for quiet enjoyment rather than for a good title, and this was the understanding of the court in Gano v. Vanderveer, (infra, p. 442, n. 3,) yet the latter construction alone would warrant the decision. Tak- ing, however, Lord Abinger's reference to the absence of an " agreement as to the eviction " at the time the tenancy began as meaning that there was no cpvenant for a good title, the case was rightly decided, for there must be an executory considera- § 274.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. assumpsit upon a demise alleged to have been made on the terms that the defendants had good title to the premises, and that the plaintiff should quietly enjoy them during the term, and alleged that the premises having been distrained upon for non-payment of a paramount rent charge, the plaintiff had been obliged to pay the same, by reason whereof he had not had the quiet enjoyment of the premises, nor held the same free from incumbrances, nor had the defendants good title at the time of the demise. On the trial it appeared that the demise was by parol, and a verdict was entered for the plaintiff, with leave to set it aside if the court should be of opinion that a covenant for quiet enjoyment could not be implied by law from a parol demise, and the court in banc tion to sustain such a promise, as a war- ranty of a chattel made after its sale cannot be enforced, unless some new consideration arise at the time of giving the warranty. Roscorla v. Thomas, 3 Q. B. 234 ; Hogins v. Plympton, 11 Pick. (Mass.) 97; Wil- liams v. Hathaway, 19 id. 387; Bloss v. Kittridge, 5 Verm. 28. Granger v. Collins was cited and ap- proved in the late case, of Maeder v. City of Carondelet, 26 Mo. 115 ; but there was there an express stipulation in the lease that nothing therein contained should be construed to imply a covenant for quiet enjoyment. In a subsequent case in the Common Pleas, Messent v. Reynolds, 3 C. B. 194, there was a written agreement to let, fol- lowed by possession taken under it, and the tenant having been evicted by the rever- sioner sued in assumpsit on a promise that in consideration of the agreement and its performance by the plaintiff the latter might quietly use, occupy, possess, and enjoy the premises for the term. On a case stated, judgment was entered for the defendant, principally, it would seem, on the ground that the agreement was not an absolute one, as it contained a reference to certain "conditions mentioned in a memoran- dum" which were not set forth in the declaration, though it was thought to be at least doubtful whether, apart from this, a contract for quiet enjoyment would be implied from a mere agreement to let. "We are asked to imply," said Tindal, C. J., " from the agreement set out in the case, a covenant on the part of the de- fendant that the plaintiff should and might quietly use, occupy, possess, and enjoy the premises for the term for which the defendant had agreed to let them. It may be that a covenant for quiet enjoy- ment may be implied from a mutual agree- ment to let and take. But passing that by, it ought at all events to appear that there is an absolute agreement to demise for a term ; whereas, if this agreement be looked at, it will be seen that the defendant does not agree to demise to the plaintiff absolutely for eight years and a quar- ter, but 'subject to the same conditions as are mentioned in the memorandum to him from Mr. Flight.' How are we to say that the conditions to which reference is thus made do not apply to the term, and that it might not be legally determined, or that it was not avoided by some breach of the conditions ? The inference, there- fore, which the plaintiff seeks to draw in his declaration is one that is not supported bylaw." And Cresswell, J., added, "There is no evidence of an express contract for quiet enjoyment ; but it is said that the law will imply it from the agreement set out. . . . Even assuming that the word 'let' in an agreement is equivalent to 'de- mise' in a lease under seal (which I am not prepared to admit), that would only raise an implied covenant coextensive, ac- cording to Adams v. Gibney [infra, p. 444, n. 1], only with the estate out of which the lease is granted." 441 § 274.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. were all of opinion that there was not a covenant for good title, but only for quiet enjoyment during the term ; the plaintiff had therefore misdescribed the covenant arising out of the relation of the parties. 1 So in a case in New York, where premises were occupied under a written agreement to let, not under seal, without any express covenant or the words grant or demise, it was held that no covenant for title could be implied, as it was said that " it never was held that a mere sale or lease imported a warranty of title in the grantor or lessor of real estate, as in the case of personal property." 2 So in a recent case in New Jersey, where the defendant, having contracted to purchase certain premises, rented them by parol to the plaintiff, who went into possession with notice of the defend- ant's title. The contract of sale was subsequently rescinded, and the plaintiff, being evicted by the owner, brought this action " to recover damages for the breach of an oral lease," but upon the trial he was nonsuited, on the ground that the defendant had not from the mere fact of leasing agreed to warrant the title, and this was affirmed by the court in banc. 3 1 Leave was, however, granted, on pay- ment of costs, to have a new trial, but it afterwards appearing that the only point reserved having been whether a covenant for quiet enjoyment could be implied by law from a parol demise, the court dis- charged the rule for a new trial and en- tered judgment upon the verdict. 2 Baxter v. Ryerss, 13 Barb. (N. Y.) 284. That is to say, a warranty of the title, as distinguished from a covenant for quiet enjoyment ; for the New York cases, as do all others, distinctly hold that the latter covenant is implied from the relation of landlord and tenant. See supra, p. 440. Unless this be borne in mind, the student may suppose that a contradiction exists which the cases do not warrant. 3 Gano v. Vanderveer, 34 N. J. L. 293. "The theory of the action," said the court, " was, in matter of substance, erroneous. Tin- ground of injury to the plaintiff' con- sisted in the failure of the title of his les- sor. If such title had been good, it is the plaintiff's contention he could have suc- cessfully defended himself and retained the possession of the premises. As the lessor did not have the title, the notion seems to 442 be that an action will arise out of that cir- cumstance. But this is not so. A man does not when he conveys or leases land covenant or agree, ipso facto, that the title is good. In the civil law, from an ade- quate price a warranty was implied; but it was to the contrary of this in the common law. Frost v. Raymond, 2 Caines, 188 ; Phillips v. Mayor, &c, 2 Vroom, (N. J.) 143. In Granger v. Collins, 6 Mees. & Welsb. 458, the Court of Exchequer held that no implied agreement for quiet en- joyment would arise from the mere rela- tion of landlord and tenant. The books are full of cases touching the question from what words employed in the creation of a term of years a covenant or agreement to warrant the title will be implied. Thus at an early date, in Holder v. Taylor, Hob. 12, it was decided that the word demisi imports a covenant that the lessor had power to lease. So the word concessi has equal efficiency. Style v. Hearing, Cro. Jac. 73 ; 1 Saund. 322, n. It has been doubted whether the words 'let and lease ' have any such effect by implication. Now it is evident the reports are full of cases of this sort, and yet they are all ob- § 275.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. § 275. The covenants for title implied from the words of leas- ing differed from the warranty implied from the word of feoff- ment, dedi, both as to source and effect. The former arose from contract, the latter from tenure. The warranty was a real cov- enant in its strict sense, and the warrantee recovered another feud in the place of that which was lost ; while on the former the tenant recovered damages as a recompense for the term lost, and not another term in its place. The warranty implied from the word dedi was, moreover, as we have seen, unrestrained by any express warranty which the deed might contain, 1 while the covenants implied from the words of leasing fell within the maxim expressum facit cessari taciturn, and were modified or restrained by express covenants. Thus in Nokes' case, 2 the lessor, after employing the words demise and grant, added a covenant for quiet enjoyment " without eviction by the lessor or any claiming under him" and it was held that " the said express covenant qualified the generality of the covenant in law, and restrained it by the mutual consent of both parties that it should not extend further than the express covenant," and this is settled law at the present day. 3 Nor, it would seem, will the covenant implied in the creation of a leasehold endure longer than during the continuance of the estate out of which it is granted. Thus in an old case, 4 a tenant viously idle and nugatory if, by force of Mostyn v. West Mostyn Co., L. R. 1 C. P. the mere creation of a term of years, an Div. 145 ; Tooker v. Grotenkemper, 1 Cin. agreement to warrant the title will arise. S. C. (Oh.) 88. In other words, when a In the present case, the proofs go simply lessor means to limit his liability by bind- to the effect that the plaintiff became ten- ing himself to protect the tenant only ant to the defendant of these premises for against disturbances or defects of title one year ; from this relationship no con- arising from the lessor's own acts and the tract with respect to the title can be im- acts of those who represent or claim under plied ; consequently, on this ground, the him, and employs a special covenant for plaintiff was rightly nonsuited." The this purpose, the law will not render it court also held the lease to be void under useless and defeat his intention by over- the statute of frauds, though whether the riding it with the more enlarged general plaintiff's possession was under a lease or covenants which the law otherwise implies an agreement to lease was not decided. from the very words of leasing. Deering 1 Supra, p. 436. v. Farrington, 1 Mod. 113 ; s. c. 1 Freem. 2 4 Rep. 81. 368; 3 Keb. 304; Dennett v. Atherton, 8 Frontin v. Small, 2 Raym. 1419 ; L. R. 7 Q. B. 316 ; Merritt v. Closson, 36 Merrill v. Frame, 4 Taunt. 329; Schlencker Venn. 172; Tooker v. Grotenkemper, v. Moxsy, 3 Barn. & Cress. 789 ; Line v. supra. Stephenson, 5 Bing. N. C. 183; Leonard v. i Swan v. Searles, Dyer, 257 a ; s. c. Taylor, 7 Irish Law, 207; s. c. 8 id. 300 ; Benl. & Dal. 150. Though one of the fonr Kean v. Strong, 9 Irish L. (Q. B. ) 74; justices dissented, even he admitted that 443 § 276.] IMPLIED COVENANTS FOB TITLE, [CHAP. XII. for life having made a lease by the word demisi, the lessee was, after the death of the tenant for life and before the effluxion of the term, evicted by the remainderman and brought covenant against the executors of the lessor, but it was held that " the covenant in law ends and determines with the estate and interest of the lessor ; " and in 1830 a decision was made in the Common Pleas to the same effect, 1 and the law has been held the same way on this side of the Atlantic. 2 The implied covenant is therefore obviously more restricted in this respect than an express covenant for quiet enjoyment. 3 § 276. The warranty and condition of re-entry arising at com- mon law from an exchange of lands — implied at first from the exchange itself, and later from the use of the word excambium, and no other word 4 — remained unaltered in England until within our own day, 5 save, it is supposed, as to the remedy had the lease been by deed-poll, and not indenture, he should have agreed with the majority, but the reporter questions this distinction. The doctrine of Swan v. Searles is also found in Hyde v. The Can- ons of Windsor, Cro. Eliz. 553, Cheiny v. Langley, 1 Leon. 179, and Bragg v. "Wise- man, 1 Brownl. 23. In the last case covenant was brought against the execu- tor of the husband upon a lease by hus- band and wife, and it was laid down "that a covenant in law shall not be extended to make one do more than he can, which was to warrant it as long as he lived and no longer." 1 Adams v. Gibney, 6 Bing. 656. Tin- dal, C. J., stated that the facts exactly corresponded with those of Swan v. Searles (cited in last note), and after reviewing that and the other authorities said : ' ' Un- less, therefore, some very strong and in- superable objection had been raised to the principle of those decisions, which has not been done in the present case, we think it safer to adhere to them, the doctrine of which has been adopted in books of high authority; amongst others see Shep. Touch. 160, and torn. Dig. Covenant, C. And no injustice can be occasioned to the lessee by this decision, who must have known from the form of the reservation in the lease that his lessor was no more than a tenant 444 for life, but was contented to accept a lease without an express covenant for quiet en- joyment." 2 McClowry V. Croghan, 1 Grant, (Pa.) 311 ; Mayor of Brookhaven v. Baggatt, 61 Miss. 383. 3 The distinction between an express and an implied covenant was laid down with great clearness in Williams v. Bur- rell, 1 C. B. 402, and the opinion of the court, by Tindal, C. J., was quoted at some length in the fourth edition of this treatise, p. 470. * Supra, p. 433. 5 The warranty in case of exchange was peculiar. "It is a special warranty, for upon the voucher by force of it he shall not recover other land in value, but that only which was given by him in exchange, for inasmuch as the mutual consideration is the cause of the warranty, it shall therefore extend only to land reciprocally given and not to other land, and this war- ranty runs only in privity, for none shall vouch by force of it but the parties to the exchange or their heirs and no assignee. " Bustard's case, 4 Rep. 121. But although an assignee could not re-enter nor vouch, but only use the warranty to rebut, yet the exchangee might re-enter upon an alienee. Noy's Maxims, 61 ; Dean v. Shelly, 57 Pa. 427. § 276.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. upon it. 1 The obvious practical objection to it was that it caused what was termed a "double title," since a purchaser of either property would of course have to examine the title of the other. A somewhat recent statute in England has altered the common law as to this, and deeds of exchange have there no longer the effect of creating any warranty, right of re-entry, or implied covenant. 2 In the United States, it is presumed that the com- mon law exists, 3 unless where, in some of them, it is perhaps 1 That is to say, it is not presumed that in later times the remedy was by voucher or warrantia chartce, at least there is no such evidence ; it must have been by action of covenant, and it has been doubted by some whether this war- ranty and re-entry were ever incident to exchanges effected by conveyances under the statute of Uses, but the better opinion seems to be that they were. See Stewart's note to 2 Black. Comm. 323. 2 "In some instances, an abstract re- lating only to the property intended to be conveyed will not alone suffice, as where lands have been taken in exchange (4 Eep. 121, Prest. Abst. 87), or allotted under enclosure acts, in both of which instances an abstract must not only be furnished of documents of title relating to the estate sold or allotted, but of those also of the estates given in exchange, or of the original estates in respect of which the lands were allotted. The reason why a double title is required, in the first in- stance, is because the foundation of an ex- change was an implied warranty, which engendered the right of entry in case of eviction. (Shep. Touch. 290 ; Finch L. 27 ; Shep. Prac. Couns. 2. ) In the second in- stance, because the allotted lands became liable to the uses of the estates in respect of which they were allotted. The statute of 4 & 5 Will. IV. c. 30, §§ 24, 25, has, however, made some important alterations in the law in the latter case ; as that stat- ute, by expressly changing the uses, takes away any right of eviction after an ex- change made of lands in common fields under the powers of that act ; and by a still more recent enactment (8 & 9 Vict, c. 106), deeds of exchange have no longer the effect of creating any warranty or right of re-entry or implied covenant, by im- plication. But this statute is only pro- spective, and will not affect assurances made previously. As to these, therefore, a double abstract will still be necessary." 1 Hughes on Sales of Real Property, 246. See also 1 Preston on Abstracts of Title, 303, and the comments upon that passage in Allnatt on Partition, 172. In Barton's Conveyancing, it is said (p. 107), "As the word ' exchange ' implies a mutual warranty, it would seem that the usual covenants for title, quiet enjoyment, and further assurance might be safely omitted in a deed of exchange at the common law, as those covenants, it is said, are implied by the word exchange ; but express cove- nants are more extensive and better to be relied on than implied ones." Of course, under such covenants, the common law right of re-entry in case of eviction does not exist. Bartram v. Whichcote, 6 Si- mons, 92. 3 Grimes v. Redmon, 14 B. Mon. (Ky.) 237 ; Pugh v. Mays, 60 Tex. 191. " Ex- changes," said Sharswood, J., in Dean v. Shelly, 57 Pa. 427, " have fallen into dis- use in modern conveyancing. To make an assurance of that character, it is indis- pensable that the word excambmm — ex- change — should be employed, which, as Lord Coke says, is so individually requi- site as that it cannot be supplied by any other word, or described by any circum- locution. Co. Litt. 51 b." And hence, where one conveyance was simply partly in consideration of another, there was held to be no implied warranty or condition of re-entry. So in Walker v. Renfro, 26 Tex. 142, where, " although the transac- tion was in effect an exchange, it was not a technical exchange." 445 § 277.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. deemed to be obsolete, and where in others it has been altered by statute. 1 § 277. As to the warranty and condition of re-entry implied from partition. This being by writ, of course the warranty was implied from the partition itself, and not from any particular words used. 2 It is familiar that the right to partition existed at common law solely between coparceners, and there was this difference between the warranty and the condition : when a parcener re-entered for con- dition broken, she defeated the partition in the whole ; but when she vouched by force of the warranty, the partition was not de- feated in the whole, but she recovered recompense for the part that was lost. 3 But to joint tenants and tenants in common there was by the common law no right to partition by writ — between them it must be voluntary merely. And hence was passed the well-known statute of 31 Hen. VIII. c. 1, which gave to all joint tenants and tenants in common the right to make partition between them by writ, " in like manner and form as coparceners by the common laws of this realm have been and are compellable to do," with the proviso " that every of the said joint tenants or tenants in com- mon and their heirs, after such partition made, shall and may have aid of the other or of their heirs, to the intent to deraign the warranty paramount and to recover for the rate, as is used be- tween coparceners after partition made by the order of the com- mon law." It will be perceived that this statute gave the right to the warranty only, and as between joint tenants and tenants in com- mon the condition neither existed nor exists by common law or by statute. The common law, therefore, in cases of partition by writ, gave to coparceners a warranty and a condition, and the statute gave to joint tenants and tenants in common warranty alone. But the 1 As for example under the New York which judgment (unlike the decree in Revised Statutes, supra, p. 438, n. 3. equity in cases of partition ) of itself passed 2 The partition of course took effect the title to the allotments in severalty, from the judgment of the court — after 3 Bustard's case, 4 Rep. 121 ; Co. Litt. the judgment quod partitio fiat, the issue 174 a ; Allnatt on Partition, 158 ; Miller of the breve de partitionc facienda, and the on Partition, 245 ; Feather v. Strohoecker, sheriff's return — that " the partition so 3 Pa. (old Pa., not Pa. St.) 508 ; Walker made remain firm and stable forever," v. Hall, 15 Ohio, 361. 446 § 277.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. reason why warranty was implied in a partition between coparce- ners is not perhaps, very clearly stated in the books, and in view of a few decisions the subject would seem to bear some expla- nation. Under the old warranty, the heir at common law, that is, the eldest son, was alone bound by and entitled to its benefit. So strict was this, that although the local customs of gavelkind and borough English were recognized as in the one case dividing the inheritance among all the sons, and in the other giving it to the youngest, yet the warranty of the ancestor, and the warranty to the ancestor, bound and profited only the eldest son, the heir at law. 1 But as to females — and for obvious feudal reasons — it was as much the common law that a feud should descend equally among the daughters as that among the sons it should go to the eldest alone, and all the sisters were heirs at common law, and, as such heirs, all were entitled to the benefit of the warranty which had come to them with the estate from their ancestor. 2 So long as they held together, if one were impleaded she might " call in aid " her sister to " deraign the warranty paramount," that is to say, to assist her in vouching the warrantor of their ancestor; and if the land were lost it was the loss of both, and if the recovery in value yielded other land from the warrantor it became in turn the land of both. But as one of the incidents of coparcenary was that each sister could, by writ, compel the other to make partition, the common law, with that wisdom which lay at the bottom of most of its teachings, would not suffer the sister thus compelled to be put in a worse position after than she had been before the partition, and therefore by an exception to the law of warranty it continued its benefit in severalty as it were, and in order that any future loss should be a loss to both, it annexed or implied a warranty in the partition ; that is to say, it still retained to each the right to " call in aid " the other in order to " deraign the warranty paramount," and it gave to each the right, in case of loss not thus made up to them under that warranty, to recover in value from the other pro rata according to the extent of the loss, or, as it was termed, to " recover for the rate," and also to re-enter. 3 But if, after partition made, one sister aliened, she lost 1 Brooke's Abr. tit. Garranties, pi. 11 ; 2 Litt. § 241. Assiz, pi. 22 ; Litt. §§ 735, 736 ; Kobin- 3 This is thus stated by Littleton : son on Gavelkind, 127. " Also, if a man bee seised in fee of a carve 447 § 277.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. the right of re-entry and of recovery for the rate, " because by the alienation she had dismissed herself to have any part of the tene- ments as parcener," 1 but not, it would seem, the right to deraign the warranty paramount. 2 And if the parceners, instead of making partition by writ as by law they were compellable to do, chose voluntarily to make parti- tion by deed, as of course joint tenants and tenants in common could always do, the estate in coparcenary was of course at an end, and as each of them had thus, as in the case of alienation, " altogether dismissed herself to have any part of the tenements as parcener," the warranty was gone. 3 Then when the statute of Henry the Eighth gave to joint ten- ants and tenants in common (who before could only partition by deed) the right to have partition by writ " in like manner and form as coparceners," to make the analogy perfect, it provided that after partition each of them and their heirs (but not assigns) should have aid of the other to deraign the warranty of land by just title, and hee disseise an infant within age of another carve, and hath issue two daughters, and dyeth seised of both carves, the infant being then within age, and the daughters enter and make partition so as the one carve is al- lotted for the part of the one as per case to the youngest in allowance of the other carve which is allotted to the purpartie of the other, if afterward the infant enter into the carve whereof he was disseised upon the possession of the parcener which hath the same carve, then the same par- cener may enter into the other carve which her sister hath and hold in parcenary with her." Litt. § 262. This is also the ex- planation of Coke's sentence : "If there be two coparceners of certain lands with warranty, and they make partition of the land, the warranty shall remain, because they are compellable to make partition." Co. Litt. 365 b. That is to say, the exer- cise of the right to have partition shall not destroy the beneficial incidents of the es- tate as they existed before the partition. 1 Thus Littleton goes on to say : "But if the youngest alien the same carve to another in fee before the entry of the in- fant, and after the infant enter upon the possession of the alienee, then she cannot 448 enter into the other carve ; because by her alienation she hath altogether dis- missed herself to have any part of the tenements as parcener. But if the young- est before the entry of the infant make a lease of this for terme of yeares, or for terme of life, or in fee tayle saving the re- version to her, and after the infant enter, there peradventure otherwise it is ; be- cause she hath not dismissed herselfe of all which was in her, but hath reserved to her the reversion and the fee," etc. Litt. § 262. 2 Coke says, in commenting upon this passage : " Hereupon it folio weth, that if one parcener maketh a feoffment in fee, and after her feoffee is impleaded and voucheth the feoffor, she may have aid of her coparcener to deraigne a warranty paramount, but never to recover pro rata against her by force of the warranty in law upon the partition ; for Littleton here saith that by her alienation she hath dis- missed herselfe to have any part of the land as parcener, and without question as parcener she must recover pro rata, upon* the warranty in law, against the other parcener." Co. Litt. 174 a. 8 Morrice's case, 6 Rep. 12 b, infra, p. 449. § 278.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. paramount and to recover for the rate " as is used between co- parceners after partition made by the order of the common law ; " and, still to keep up the analogy, it was held, after this statute had been in force for more than a century, that if joint tenants, who thus equally with coparceners were compellable to make partition, chose voluntarily to make partition by deed, the war- ranty was gone ; 1 their right to deraign the warranty paramount and to recover for the rate was their right by statute as an inci- dent to the remedy it afforded ; they had not pursued that remedy, and they could not therefore have that right. Nothing could be more logically consistent than the whole of this system. § 278. This statement of the common law and its statutory alteration has been thus sketched because in some of our States that law, brought to this country by our ancestors, is practically in force at the present day. And several decisions have correctly held that in the case of partition by deed between joint tenants, and also as between tenants in common, their right to recom- pense in case of loss depends solely on the covenants contained in the deed, and not upon any implied warranty. 2 But as to co- parceners, the law seems not to have been so carefully considered. In a case in Maryland, it was held that in partition by deed between coparceners the warranty implied by law was superseded by the express covenants in the deed, 3 and in Pennsylvania it has been held that tenants in common by descent, having been by the statutes of descent put upon the same footing as coparceners, should have all the benefit which coparceners at common law had in cases of partition by deed ; 4 and it was hence decided that in a partition by deed between tenants in common by descent, there 1 Morrice's case, 6 Rep. 12 b. "Be- the said act, although they were cotnpella- tween Smith and Mo-nice the case was ble by writ to make partition, yet foras- such : two joint tenants are with warranty, much as they had not pursued the statute and partition was made between them by to make partition by writ, therefore such judgment in a writ of partitione facicnda, partition doth remain at the common law, by force of the statute of 31 Hen. VIII. e. 1. and by consequence the warranty is gone." And it was adjudged that the warranty 2 Weiser v. "Weiser, 5 Watts, (Pa.) remained, because by the king's writ they 279, where is a learned opinion by Ken- are compellable by the statute (to which nedy, J.; Rector v. Waugh, 17 Mo. 26; every one is party) to make partition, and Picot v. Page, 26 id. 420 ; Smith v. See- the party has pursued his remedy according ringen, id. 567 ; Cashion v. Faina, 47 id. to the act, and therefore none can have 133 ; Rountree v. Denson, 59 Wis. 522. wrong by the operation of the statute, to 3 Morris v. Harris, 9 Gill, (Md.) 26. which every one is party ; but if they had 4 Which was none at all, if the law has made partition by deed by consent, after been correctly stated in the text. 29 419 § 280.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. was an implied warranty of title between them, so that in an ac- tion of ejectment brought by one of them to recover the possession of part of the land allotted to him by the deed, the other tenant in common was not a competent witness for the plaintiff. 1 But in both of these cases the law was, it would seem, incorrectly as- sumed to be that in partition by deed between coparceners there was an implied warranty. 2 § 279. As respects the practical effect at the present day of the warranty implied from partition, it was recently held in Ten- nessee, where the subject was elaborately examined in the case of a bill for contribution and reimbursement by one tenant in com- mon against his co-tenant and the alienees of the latter, that a bill in equity was the proper and most convenient remedy, 3 and the same view has been taken in a somewhat recent case in Ohio, in which the operation by estoppel of an implied warranty be- tween coparceners was denied ; 4 and in one of the Pennsylvania cases just referred to, 5 it was considered to be at least doubtful whether a personal action of covenant could be maintained for a breach of the implied warranty. No other remedy was, how- ever, suggested, and as we have seen that there was as between tenants in common no condition of re-entry, the warranty would seem to be practically useless. § 280. Owing to a misapprehension of one or two old cases, the dangerous doctrine has been more than once broached that 1 Patterson v. Lanning, 10 Watts, (Pa.) tion by writ and not by deed. Patterson 135. v. Lanning, however, would seem to have 2 Kennedy, J., cited in his opinion : been considered in Pennsylvania as cor- " If there be two coparceners of certain rectly expressing the law, though the lands with warranty, and they make parti- grounds of the decision have never been tion of the lands, the warranty shall re- seriously considered. See Strohoecker v. main, because they were compellable from Housel, 5 Pa. Law Jour. 327 ; Seaton the first to make partition. Co. Litt. v. Barry, 4 Watts & Serg. 184 ; Allen v. 165 a. The law, however, is different as to Gault, 27 Pa. 475. The law would seem joint tenants, who, at the common law, to have been more correctly stated in were not compellable to make partition ; Walker v. Hall, 15 Ohio, 355, infra. and hence, if they hold their lands under 3 Sawyers v. Cator, 8 Humph. (Tenn.) warranty, and make partition thereof with- 256, 287. out writ, the warranty will be destroyed. 4 Walker v. Hall, 15 Ohio, 355. The Co. Litt. 187 a." Here, however, Coke opinion in this case, as also that in Saw- is speaking of the warranty of the ancestor yers v. Cator, supra, were quoted at some of the coparceners — the warranty para- length in the fourth edition of this trea- mount — and not of any warranty implied tise, p. 478. by the partition, and the partition referred 5 Patterson v. Lanning, supra. to in the first sentence is evidently parti- 450 § 281.] AND HOW LIMITED OE QUALIFIED. [CHAP. XII. covenants for title may be implied from a recital, but this has since been distinctly and decisively repudiated. 1 § 281. For several hundred years after the statutes de bigamia and quia emptores, no act of Parliament, save that of 11 Hen. VII. c. 20, 2 which affected only warranties by a feme covert or widow without the consent of those entitled in remainder after her hus- band's death, interfered to enlarge or to restrain such warranties or covenants as were implied at common law, and, as we have seen, the word dedi was the only one from which, in the convey- ance of a freehold, a warranty could be implied. 3 During the in- terval which elapsed before Parliament again legislated upon the 1 In the early case of Severn v. Clerk, 2 Leon. 122, in an action of debt on a bond conditioned to perform certain articles contained in a deed, whereby the obligor had assigned a term of years, reciting that he was possessed of them, it was held that if the party had not that interest by a good and lawful conveyance, his obligation was forfeited. It was said that the recital of itself was nothing, but being joined and con- sidered with the rest of the deed, it was material. It has, however, been chiefly ow- ing to the misapprehension (in Browning v. Wright, 2 Bos. & Pull. 13) of the case of Johnson v. Procter (4 Yelv. 175 ; 1 Bulst. 3, in which the report is more full) that such an opinion has been entertained as to the effect of a recital. In that case, A. and B. being joint tenants for years of a mill, A. assigned all his interest to C , without the assent of B., and died. B. afterwards, by indenture reciting the lease and that it came to him by survivorship, granted the residue of the term to J. S., and covenanted for quiet enjoyment, not- withstanding any act done by him. He also gave the purchaser a bond conditioned to perform the covenants, grants, articles, and agreements in the assignment ; and the purchaser, having been evicted by C. of the moiety assigned to him, brought an action on the bond, and judgment was given in his favor. Lord Eldon considered the judgment as having turned on the re- cital, and that the recital itself amounted to a warranty. But the decision seems to have turned upon the word grant, and not at all upon the recital, and Sugden, in no- ticing the case (2 Sngd. on Vend. 524), says : " It seems material to refer the case of Johnson v. Procter to the true ground of the decision, because, if the case turned solely on the recital, it might perhaps be thought that a general recital in a convey- ance of the inheritance of an estate that the vendor is seised in fee, would amount to a general warranty, and would not be controlled by limited covenants for the title, — a proposition which certainly can- not be supported." And this view was sustained in the recent case in Ireland of Delmer v. McCabe, 14 Irish Com. L. 377, in which the authority of Johnson v. Procter was distinctly denied. Huston, J., took up the same misapprehension in Christine v. Whitehall, 16 Serg. & Rawle, (Pa.) 112, where it was held that a recital "being part of fifty-eight acres which A. B. granted," amounted to a covenant for seisin, a decision from which Gibson, C. J., strongly dissented at the time, and which, when the same case came up again (White- hill v. Gotwalt, 3 Pa. (old Pa., not Pa. St.) 327 ) some years after, was overruled in a very accurate and lucid opinion. In a case in Missouri ( Ferguson v. Dent, 8 Mo. 673), it was correctly said that "a grantor, and in some instances even strangers may be estopped by mere recitals in a deed (as to which see supra, Ch. XL), and yet it does not follow that such recitals are cove- nants, either express or implied." 2 Supra, p. 11. 3 Supra, p. 5. The word "conveyance " is here used in its popular sense, and does not include an exchange or partition. 451 § 282.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. subject, the ancient system of law had given place to the modern ; feoffments had been superseded by conveyances taking effect under the statute of Uses, and warranties, by covenants for title. It is familiar learning that the passage of the statute of Uses led to the introduction of deeds of bargain and sale, and that after the statute of Enrolments had required that the latter should be registered, there was introduced the mode of assurance by lease and release. 1 § 282. Deeds of bargain and sale were still, however, used in some parts of England, and in the year 1707 was passed the very local statute of 6 Anne, c. 35, which provided for the public regis- tering of deeds, in certain parts of the county of York, by the 30th section of which it was enacted that " In all deeds of bargain and sale hereafter enrolled in pursuance of this act, whereby any estate of inheritance in fee simple is limited to the bargainee and his heirs, the words grant, bargain, and sell shall amount to, and be construed and adjudged in all courts of judicature, to be ex- press covenants to the bargainee, his heirs and assigns, from the bargainor for himself, his heirs, executors, and administrators, that the bargainor, notwithstanding any act done by him, was at the time of the execution of such deed seised of the heredita- ments and premises thereby granted, bargained, and sold, of an indefeasible estate in fee simple, free from all incumbrances (rent and services due to the lord of the fee only excepted), and for quiet enjoyment thereof against the bargainor, his heirs and assigns, and all claiming under him, and also for further as- surance thereof to be made by the bargainor, his heirs and assigns, and all claiming under him ; unless the same shall be restrained and limited by express particular words contained in such deed ; and that the bargainee, his heirs, executors, adminis- trators, and assigns respectively, shall and may, in any action to be brought, assign a breach or breaches thereupon, as they might do in case such covenants were expressly inserted in such bargain and sale." Owing to the very local application of this statute, as also to the clearness of the language of this section, there is not only an absence of its judicial interpretation, but it has passed almost unnoticed by legal writers. 2 1 See Keeves, History of the Common 2 It has been given here at length be- Law, ch. xxx. ; 2 Black. Comm. 338 et seq. cause, as will be seen, it has been re-enacted 452 § 283.] AND HOW LIMITED OR QUALIFIED. [(HAP. XII. § 283. The next enactment as to statutory implied covenants for title had a wider range. In 1845, was passed the act of 8 & 9 Vict. c. 119, 1 one of a series called " The Real Property Acts," whose purpose was not only to curtail luxuriant verbosity, but to introduce short forms, sometimes called " pattern covenants," to supersede those then in use. 2 But as to this at least, the act was a failure, the short forms (whose use was not obligatory) were seldom or never used, and before long, the act was said to be " consigned to a deserved oblivion." 3 more or less literally in many of the United States. It will be perceived that the cove- nants implied by this act are carefully limited to the acts of the grantor and those claiming under him. The words " not- withstanding any act done by him," are the proper restraining words of the cove- nants for seisin and against incumbrances; see supra, pp. 24, 28. Those for quiet en- joyment and for further assurance are also expressly limited in the usual manner ; siqwa, pp. 24, 26, 29. It is difficult to perceive how the covenants for title should be more limited, and yet to prevent the possibility of misconception as to a cove- nantor being bound even to this limited extent against his will, it is provided that even these covenants can be restrained and limited by express particular words in the deed. 1 Sometimes known as Lord Brougham's Act. 2 For example, a schedule contained a short form of deed, not unlike some ordi- nary deeds of bargain and sale in this country, the word of conveyance being simply "grant." Another schedule was divided into two columns, and the words used in the first were to have the same effect as if the words in the second had been inserted, thus : Column I. 1. The said (covenantor) covenants with the said (cove- nantee) : Column II. 1. And the said covenantor doth hereby for himself, his heirs, executors, and administrators, covenant, promise, and agree with and to the said covenantee, his heirs and assigns, in manner fol- lowing (that is to say): And then followed forms for expressing the covenant for right to convey, for quiet en- joyment, against incumbrances, for fur- ther assurance, for the production of title deeds, and that the grantor had done no act to incumber. For a fuller reference to this statute see the fourth edition of this treatise, pp. 482, 483. As will be seen presently, several of our States have partially followed the lead of this statute. 3 Dart on Vendors (4th ed. ), 463 ; and he adds, " Such enactments are either un- necessary or mischievous ; unnecessary, if the parliamentary form would, if unau- thorized by Parliament, merely express in fewer words the meaning of the forms in ordinary use ; and mischievous, if an un- natural and secondary meaning is given by statute to words which are prima facie clear and intelligible ; for the effect is to increase the difficulty of legal documents to the unprofessional reader." Sugden also, in his later abridgment of his work on Vendors, as well as in his last edi- tion of the complete work, passed over the statute of 8 & 9 Vict, with the most casual notice. See also a severe criticism on this statute in 9 Jurist, part ii. 333, 334, and in a notice on the recent statute to be presently referred to, it is said (of the statute 8 & 9 Viet.) : " It has remained so absolutely a dead letter, that many of our readers will now hear of its existence 453 § 284.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. § 284. Ill 1881, was passed the act cited as " The Conveyancing and Law of Property Act, 1881," J which, repealing the 8 & 9 Victoria, is more elaborate. 2 The time since its passage has been so short that, so far at least as the covenants for title are concerned, scarcely any reported cases appear to have been decided under it, 3 though it has been the subject of notice by recent text writers. 4 for the first time, and in all probability not a single draft has ever been drawn in pursuance of its provisions." 17 Law Times, 335. In Ontario, chap. 91 of the Con. Sts., taken from the English St. 8 & 9 Vict, c. 119, provides for a short covenant that the covenantor has the right to convey the land, notwithstanding any act done or suffered by him (Leith's Ileal Prop. Stats. 93, 103); and this latter clause is absolutely necessary to a covenant under the act. Brown v. O'Dwyer, 35 U. Can. Q. B. 354, where it was held that if the words "notwithstanding any act," etc., be omitted from a conveyance purporting to be made under this act, the covenant will not be within the statute, but will bind the covenantor according to its words ; and that if the subsequent covenants for quiet possession, further assurance, and against incumbrances are in accordance with the statute, they will not be made absolute by the omission of those words from the cov- enant of right to convey. 1 44 & 45 Vict. c. 41, L. R. xvii. Stat. 110, sometimes known as Lord Cairns's Act, entitled " An Act for simplifying and improving the practice of convey- ancing, and for vesting in trustees, mort- gagees, and others various powers com- monly conferred by provisions inserted in settlements, mortgages, wills, and other instruments, and for amending in various particulars the laws of property, and for other purposes," approved 22 August, 1881. As the statute is nearly forty pages long, and the " Law Reports " are to be found in every considerable library, a brief notice of it here must suffice. 2 Section 7 refers to the covenants for title, and commences : — "(1.) In a conveyance there shall, in the several cases in this section mentioned, 454 be deemed to be included, and there shall in those several cases, by virtue of this act, be implied, a covenant to the effect in this section stated, by the person or by each person who conveys, as far as regards the subject matter or share of subject matter expressed to be conveyed by him with the person, if one to whom the conveyance is made, or with the persons jointly, if more than one to whom the conveyance is made as joint tenants, or with each of the persons, if more than one to whom the conveyance is made as tenants in common, that is to say : (A.) In a conveyance for valuable con- sideration, other than a mortgage, the fol- lowing covenant by a person who conveys and is expressed to convey as beneficial owner (namely) : " And then follow the covenants (for right to convey, quiet en- joyment, freedom from incumbrance, and further assurance) to be implied. The several kinds of assurance for which cove- nants are thus provided are conveyance of freehold and leasehold for value by bene- ficial owner, mortgage of the same by the same, deed of settlement, and conveyance by trustees, executors, committees of luna- tics, etc., and then follows the proviso : " A covenant implied as aforesaid may be varied or extended by deed, and, as so varied or extended, shall, as far as may be, operate in the like manner, and with all the like incidents, effects, and consequences, as if such variations or extensions were directed in this section to be implied." 3 In re Johnson & Tustin, L. R. 30 Ch. Div. 42, Fry, L. J., referred to the act as having been " framed in favor of the vendors.' 4 Hood & Challis's Conveyancing Acts, 1881-82 (London, 1884) ; Greenwood's Real Property Statutes (1884) ; T. C. Williams's Conveyancing Statutes (1884J ; § 285.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. § 285. But although statutory implied covenants for title have but recently come into general use in England, yet such enact- ments, for the most part copied from the statute of Anne, have been passed in many of our States, and are in full force. The first of them was in Pennsylvania. Within eight years after the statute of Anne, and in its early colonial days, " An Act for acknowledging and recording of deeds " 1 was there passed, the sixth section of which was copied from the English statute, though the attempt at brevity caused it to be less clear. It declared that 2 " All deeds to be recorded in pursuance of this act, whereby any estate of inheritance in fee simple shall hereafter be Goodeve's Modern Law of Real Property, 2d ed. The student will find a series of articles on this statute, commencing imme- diately after its passage, in 71 Law Times, pp. 334, 401 ; 72 id., pp. 167, 186, 204, 220, 257, 346, 365, 382, 434; 73 id., pp. 5, 78, 96, 117, 137, 157. In one of these articles it is said (72 Law Times, 166), " With regard to covenants (sect. 7), it should be carefully noticed that this act will not imply covenants unless the phrase- ology required by the act is used. The party must not only convey as beneficial owner, etc., but he must be expressed to convey as such. In drawing an ordinary conveyance on sale of freeholds, from one person to another person, there is no rea- son why the purchaser should not use the short expressions required by the statute, and the covenants for title can be safely omitted. ... It is a different question whether the vendor should accept them (the covenants). They slightly enlarge his liability by precluding all question as to what covenants run with the land, and as to his direct liability to all persons in whom the estate or interest of the implied covenantee is, for the whole or any part thereof, from time to time vested." The general result of this statute is thus summed up in the Report on Land Trans- fer, issued by the Bar Committee in March, 1886 : — " The objects proposed both by 8 & 9 Vict. c. 119, and by Lord Cranworth's Act, have been completely attained by cer- tain parts of the Conveyancing and Law of Property Act, 1881. With regard to the following points, that act's provisions, though not compulsory, have been com- pletely adopted into the current practice. " 1. Covenants for title, in conveyances on sales, mortgages, settlements, recon- veyances by mortgagees, and conveyances by trustees, are contained within the com- pass of three or four words. "2. ' General words ' are inserted only under special circumstances, and then only in an exceedingly condensed form. "3. The 'all the estate' clause, as an adjunct to specified parcels, is invariably omitted. " 4. Covenants for the production and safe custody of deeds have been superseded by short forms, styled 'acknowledgments' and 'undertakings.' "5. Express powers of sale, and trusts or directions as to sale moneys, and similar provisions, are no longer inserted in mort- gages. "6. Express powers of sale, vested in trustees, require no specific mention of their mode of exercise. " 7. Powers for the management of in- fants' property, maintenance, and educa- tion are no longer inserted in settlements, unless under very special circumstances. "8. Express provisions relating to the appointment of new trustees of settlements are either wholly omitted, or are restricted to naming the persons by whom the statu- tory powers are to be exercised." 1 Act of 28th of May, 1715. 2 The word " In " at the beginning of this section was of course accidentally omitted in transcribing. 455 § 285.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. limited to the grantee and his heirs, the words grant, bargain, sell, shall be adjudged an express covenant to the grantee, his heirs and assigns, to wit, that the grantee was seised of an indefeasible estate in fee simple, freed from incumbrances done or suffered from the grantor (excepting the rents and services due to the lord of the fee), as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed, and that the grantee, his heirs, executors, adminis- trators, and assigns, may in any action assign breaches, as if such covenants were expressly inserted." 1 Apart from mere verbal alterations, there are two points of difference between the English and the Pennsylvania statute : the covenant for seisin in the latter not being introduced by restrictive words, and the former implying a covenant for further assurance, which the latter omits. Why this useful covenant was omitted can now be only conjectured. It might at first be supposed to be owing to the absence of a court of chancery in Pennsylvania, since a remedy upon this covenant is usually sought in equity, but when we find that on the same day on which the act was passed there was also passed one of the acts for erecting a supreme or provincial court of law and equity, 2 this reason would seem to fail. No doubt could have arisen that all the covenants implied under the statute of Anne were limited to the acts of the grantor and those claiming under him, and did not extend to defects of title anterior to the conveyance to him. But the Pennsylvania act made the first covenant, that for seisin, an unlimited one, while the subsequent covenants are restrained to the acts of the grantor. The question would hence arise whether the latter covenants re- 1 The following proviso is at the end of never was intended to extend. The pro- this section : ' ' Provided always, that this viso is, therefore, awkwardly introduced, act shall not extend to leases at rack-rent, It really refers, however, to the prior re- or to leases not exceeding one and twenty cording provisions of the act, as appears years, where the actual possession goes from looking at the 29th section of the with the lease." This proviso has no par- statute of Anne, from which the clause is ticular connection with this section ; if it copied. It is remarkable that in many had, it would be insensible, as the section States in which this section of the Penn- is limited in application to deeds " where- sylvania statute has been re-enacted the by any estate of inheritance in fee simple " proviso has been retained, is conveyed, and the proviso would, ac- 2 And there had been several such acts cording to this construction, exempt leases before. Rawle on Equity in Pennsylvania, at rack-rent, etc., to which the section p. 11. 456 § 285.] AND HOW LIMITED OR QUALIFIED. [CIIAP. XIT. strained the former. Were it to arise upon express covenants in a deed, there might be little difficulty in holding, under the authority of a class of cases to be presently referred to, 1 that the covenant for seisin stood by itself, an unlimited covenant, and unqualified by those which followed it. But where the question is upon the construction of a statute, which turns certain words of grant into express covenants, there is every reason why a limited interpretation should be given to those covenants which every man is, as it were, obliged to enter into when the words of implication are, as in Pennsylvania, the words generally em- ployed in conveyancing. 2 The case of Bender v. Fromberger has been already referred to. 3 It was there mentioned that it had been the general understanding of the profession that the words " grant, bargain, and sell " im- ported a general warranty, and it was hence held that this general warranty could not be restrained by a subsequent special warranty ; and this, as a general proposition, was unquestionably correct. But in the subsequent case of Gratz v. Ewalt 4 the construction of the statute was carefully considered, and it was held that the first covenant, which standing by itself would be unlimited, must be taken in connection with the subsequent one against incumbrances which is limited, and consequently that none of the covenants 1 See infra, p. 458. in Illinois, in the case of Finley v. Steele, ' 2 In the first place the covenants are, 23 111. 59. in one sense, implied, and the danger aris- The writer has heard a doubt suggested ing from such covenants has been often from the bench whether the statute could referred to by courts in strong terms. In be held to apply to the case of a convey- the second place, there is a different tech- ance made in execution of a power, on the nical rule of construction called in to the ground that such vendors might not be interpretation of such a statute ; and while, grantors within the meaning of the statute; with respect to deeds, the rule is that the and in Shontz v. Brown, 27 Pa. 134, it was words are to be taken most strongly against expressly decided that the words " grant, the party using them, in the construction bargain, and sell," when used by executors of statutes the rule is equally familiar, in a deed conveying the real estate of a that statutes in derogation of the common decedent, "imply no personal undertaking, law are to be construed strictly. Now the for they are used in the necessary execu- conimon law gave no effect of warranty to tion of their trust, and are limited by the the words "grant, bargain, and sell," and occasion." See the ensuing chapter, and it may not unreasonably be said that a see and consider the remarks of Mr. Butler statute altering the common law in this in Co. Litt. 384 a, upon the subject of the respect should, when it is doubtfully ex- unsoundness of the objection sometimes pressed, be so construed as to give to the made by trustees to conveying by the warranty the most limited extent. And word "grant." since these remarks were written, the same 8 4 Dall. (Pa.) 436 ; supra, § 158. view has been expressed from the bench, i 2 Binn. 98. 457 § 285.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. implied by the statute were to be construed as extending beyond the acts of the covenantor ; 1 and the construction thus given has never been departed from in Pennsylvania; 2 and it is said by 1 "The meaning," said Tilghman, C. J., who delivered the opinion, "is not clearly expressed ; but I take it to be a covenant . . . that the estate was indefea- sible as to any act of the grantor. For if it was intended that the covenant should be that the grantor was seised of an estate absolutely indefeasible, it was improper to add the subsequent words, ' freed from in- cumbrance done or suffered by him.' . . . The words ' seised of an indefeasible estate in fee simple ' are to be considered, there- fore, as not standing alone, but in connec- tion with the words next following, ' freed from incumbrances done or suffered from the grantor.' I am the more convinced that this was the intention of the legisla- ture, by comparing the expressions in this act with the 30th section of the statute of 6th Anne, c. 35, which contains a provis- ion on the same subject, and was evidently in the eye of the persons who framed our law. The British statute makes use of more words, and the intention is more clearly expressed. It declares that the words grant, bargain, and sell shall amount to a covenant that the bargainor, notwith- standing anij act done by him, was, at the time of the execution of the deed, seised of an indefeasible estate in fee simple, etc. Our law seems intended to express the substance of the British statute in fewer words, and has fallen into a degi'ee of ob- scurity which is often the consequence of attempting brevity. I can conceive no good reason why our legislature should have wished to carry this implied warranty further than the British statute did, be- cause it has bad effects to annex to words an arbitrary meaning far more extensive than their usual import, and which must be unknown to all but professional men. It might be very well to guard against secret acts of the grantor, with which none but himself and those interested in keep- ing the secret could be acquainted. As for any further warranty, if it was intended by the parties, it was best to leave them to the usual manner of expressing it in 458 plain terms." Had the case of Bender v. Fromberger, supra, been presented af- ter this determination, its decision would have been different, in case the deed had not contained express general covenants for seisin and of right to convey, as it was taken for granted in that case that the statutory covenants were general. See supra. 2 Funk v. Voneida, 11 Serg. & Rawle, 111 (see Knepper v. Kurtz, 58 Pa. 484, for the correction of an apparent dictum in this case, as to which see also Win- ston v. Vaughan, 22 Ark. 74) ; Whitehill v. Gotwalt, 3 Pa. (old Pa., not Pa. St.) 323 ; Seitzinger v. Weaver, 1 Rawle, 377. In this last case, it was held that the statute applied not only to deeds executed, but to articles of agreement for the sale of real estate. "It is insisted," said Gibson, C. J., who delivered the opinion, "that the act of assembly, by force of which such a covenant can be implied, is applicable only to conveyances executed. No express provision to that effect is found in the act itself, and there certainly is nothing in the nature of an executory contract to call forsuch a construction. Where thevendee has done everything on his part to entitle him to the estate, the articles are an equi- table conveyance of the title, and there- fore fall within the letter as well as the spirit of the enacting clause. He some- times obtains no other title, and for that reason alone the law ought to be construed liberally for his protection. Where a sound price has been paid for an unsound title, I see no objection on this ground to its being recovered back." The covenant against incumbrances was included here in the covenant for seisin, since the next sen- tence is, "But this special covenant of seisin is broken by the existence of an incumbrance created by the vendor the instant it is sealed and delivered." Shaffer v. Greer, 87 Pa. 370, is not in- harmonious with the above, as it merely explained that the word "suffered" in- cluded the case of a tax on the land, which § 286.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. Chancellor Kent, 1 that " by the decision in Gratz v. Ewalt the words of the statute are divested of all dangerous tendency, and that it will equally apply to the same statutory language in other States." § 286. We are now to consider in what States there are similar provisions, and the construction which they have received. Such a subject is, however, approached with diffidence, as no author is competent to consider the effect of the local statutes of any State other than his own. In none of the New England States does there appear to have been any such implied covenant created by statute. None such ever existed in New York, and the Revised Statutes declare that no " covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not ; " 2 but it is held in that State that this provision does not extend to leases. 3 The words of enactment in the New York statutes have been copied in those of Michigan, 4 Minnesota, 5 Oregon, 6 Wisconsin, 7 and Wyoming. 8 the covenantor had allowed to remain unpaid, though it created no personal liability. 1 4 Comm. 474. 2 Sandford v. Travers, 7 Bosw. (N. Y.) 498. 3 Supra, p. 438, n. 3. 4 Eev. St. 1846 and 1857 ; Howell's Amend. St. 1S82, § 5656. 5 Rev. St. 1866 ; Gen. St. 1881, p. 535. The Minnesota statutes contain a proviso, which is also found in Massachusetts, that "whoever conveys real estate by deed or mortgage containing a covenant that it is free from all incumbrances, where an in- cumbrance appears of record to exist thereon, whether known or unknown to him, shall be liable in an action of con- tract to the grantee, his heirs, executors, administrators, successors, or assigns, for all damage sustained in removing the same." § 35. Fisher v. Parry, 68 Ind. 465, was a case of a deed made in MhiLe- but sued upon in Indiana, and it was held that the lex fori prevailed. As to this, see infra, Ch. XIII. 6 Acts of 1854, p. 476, § 6, Deady's Laws, p. 647, § 6. And in the laws of 1874 the same provision is found. Gen. Laws, p. 516, § 6. A former statute had provided ( Laws of Oregon, 1843-49, p. 139) that "the words grant, bargain, and sell, in all conveyances in which any estate of inheritance in fee simple is limited, shall, unless restrained by express terms in such conveyances, be construed to be the following express cov- enants on the part of the grantor, for him- self and his heirs, to the grantee, his heirs and assigns," that he is seised of an inde- feasible estate, against incumbrances, and for further assurance ; and in Fields v. Squires, 1 Deady, (C. C. U. S.) 366, 390, which arose upon the construction of a deed dated in 1850, this statute was re- ferred to by the court. 1 Rev. St. 1878, p. 632, § 2204. Sec- tion 2208, however, makes an exception in the case of the short form of deed (con- taining the words "hereby warrants") therein provided, and declares that one thus framed shall have the effect of cov- enants for title. See infra, p. 471. 8 Comp. Laws, 1876", p. 5, § 5. 459 286.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. Nor do any covenants for title seem to be implied by statute at the present day in any other States than those now to be named. 1 In Alabama, the 29th section of the act of 1805 was copied almost exactly from the Pennsylvania statute, and adopted in the Revised Statutes of 1823 2 and 1852, 3 and incorporated in the Revised Codes of 1867 4 and 1876. 5 The decision in Gratz v. 1 In Iowa, the Revised Statutes of 1843, p. 204, provided that the words "grant, bargain, and sell," in all conveyances, shall, unless restrained by express words, "be construed to be the following express covenants : first, that the grantor was, at the time of the execution of such convey- ance, seised of an indefeasible estate in fee simple in the real estate thereby granted ; second, that such real estate was, at the time of the execution of such conveyance, free from incumbrance done or suffered by the grantor, or any person claiming under him ; third, for further assurance of such real estate to be made by the grantor and his heirs to the grantee, his heirs and as- signs, and may be sued upon in the same manner as if such covenants were ex- pressly inserted in the conveyance ; " and upon this it was decided that all the covenants were express, that the cove- nants were general or absolute, and also that when the deed contained a covenant of warranty limited to the covenants of the grantor, it would not control the gen- erality of the statutory covenants. Bi;o\vn v. Tomlinson, 2 Greene, 525. Funk v. Cresswell, 5 Clarke, 62, was decided upon the Code of 1850, § 1232, and Crura v. Loud, 23 Io. 219, upon a deed framed in substance according to the Code. No such provisions are to be found in the Revised Code of 1860, or in that of 1884. As to North Carolina, see Rickets v. Dickens, 1 Murph. (N. C.) 343; Powell v. Lyles, id. 348. In Ohio, an act passed August 1, 1795, called ' A law establishing the Recorder's Office," was nearly or exactly copied from the Pennsylvania statute. It was after- wards repealed. Another act, passed Jan- uary 2, 1815, gave a right of action in all cases where a deed contained a covenant of general warranty, in like manner as if 460 the deed contained a covenant of seisin, and the same evidence to support the action and the same damages might be recovered as in an action on the covenant of seisin. This law w r as repealed and re- enacted in substance on the 3d of Febru- ary, 1824, and was entirely repealed by the act of March 12, 1831. The decisions under these statutes while in force are Innes v. Agnew, 1 Ohio, 389 ; Day v. Brown, 2 id. 346 ; Robinson v. Neil, 3 id. 525. The statute of 1815 seems not to have been very clearly expressed or dis- tinctly understood. Day v. Brown, supra ; see note to p. 274 of statute of 1841. The latest Revised Statutes (1884, 2 vols, and Supp.) are silent on this subject. In South Carolina, an act passed Decem- ber 12, 1795 (5 Stat. 256), gave a short form of a deed of lease and release, in which was a general covenant of warranty expressed in the usual form, but a proviso declared that the act should not be so construed as to oblige persons to insert the clause of warranty, nor to prevent them from inserting such clauses as should be agreed upon ; see, as to the construction of this statute, Jeter v. Glenn, 9 Rich. Law, 374 ; Faries v. Smith, 11 id. 81. 2 Tit. 18, c. 1, § 20. 3 Rev. Code, 1852, part 2, tit. 1, c. 1, § 1314. 4 Walker's Rev. Code, 1867, p. 368, § 1584. 5 Code of Ala. 1876, p. 573, § 2193. The provision now stands as follows : " In all conveyances of estates in fee, the words 'grant, bargain, sell,' or either of them, must be construed (unless it otherwise clearly appear from the conveyance) an express covenant to the grantee, his heirs and assigns, that the grantor was seised of an indefeasible estate in fee simple, free from incumbrances done or suffered from the grantor, except the rents and § 286.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. Ewalt was approved and applied to this act, 1 and in a case where the words of the conveyance were " bargained, sold, released, aliened, and confirmed," it was held, 2 upon a demurrer to the declaration, that these words did not come within the act, in- asmuch as they imported no warranty at common law, and the statute, which altered the common law, should not have its meaning stretched beyond its letter, except in cases of public utility when the object of the act appeared larger than the enact- ing words, which, it was said, was not then the case. The statute not only altered the common law, but inasmuch as it created covenants for the party conveying by mere implication its ten- dency might be regarded as somewhat dangerous and as calcu- lated to entrap the ignorant and unwary, and this decision was followed in a more recent case. 3 In Arkansas, it was enacted in 1848 that "the words grant, bargain, and sell shall be an express covenant to the grantee, his heirs and assigns, that the grantor is seised of an indefeasible estate in fee simple, free from incumbrances done or suffered from the grantor, except rents or services that may be expressly reserved by such deed, as also for the quiet enjoyment thereof against the grantor, his heirs and assigns, and from the claim or demand of all other persons whatsoever, unless limited by express words in such deed. The grantee, his heirs or assigns, may in such action assign breaches as if such covenants were expressly inserted." 4 The statute has received the same judicial construc- services that are reserved ; and also for as (in the absence of a covenant of war- quiet enjoyment against the grantor, his ranty) to deprive an assignee of a remedy heirs and assigns, unless limited by the on the statutory covenants on the ground express words of such conveyance ; and of its being a chose in action and therefore the grantee, his heirs, personal represent- not assignable. See supra, § 205 et scq. atives, and assigns, may, in any action, This is here mentioned because many of assign breaches, as if such covenants were the cases say, generally, in actions on the expressly inserted." implied covenant for seisin and against in- 1 Roebuck v. Dupuy, 2 Ala. 541 ; cumbrances, " this was broken as soon as Stewart v. Anderson, 10 id. 504. made," but no case will be found in which 2 I tee v. Pharr, 5 id. 589. this has been said of the implied covenant 3 Clanch v. Allen, 12 Ala. 164. When for quiet enjoyment when that covenant it is said in Andrews v. McCay, 8 id. 928, was the one sued upon. that "the statute covenant was broken It is considered that these statutory when the deed was made, and the general covenants operate by way of estoppel, covenant of warranty (which was also in equally with express covenants. Blakes- the deed) by the eviction under the sale," lee v. Mobde Life Ins. Co., 57 id. 205. it is presumed the court did not mean 4 Ark. Rev. St. 1848, p. 264 ; Davis v. to say that the implied covenant for quiet Tarwater, 15 Ark. 289. enjoyment was broken as soon as made, so 461 § 286.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. tion which, in Gratz v. Ewalt, was given to the Pennsylvania act, 1 and the recent Revised Code of 1884 contains the same provision. In California, the Code of 1876 provides that from the use of the word " grant " in any conveyance by which an estate of in^ heritance or fee simple is to be passed, the following covenants, and none other, on the part of the grantor, for himself and his heirs, to the grantee, his heirs and assigns, are implied, unless restrained by express terms contained in such conveyance. " 1. That previous to the time of the execution of such convey- ance, the grantor has not conveyed the same estate, or any right title or interest therein, to any person other than the grantee. " 2. That such estate is at the time of the execution of such conveyance free from incumbrances done, made, or suffered by the grantor, or any person claiming under him. Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance." 2 There had been substantially the same provision in the Code of 1855. 3 None of these covenants, it is held, run with the land. 4 In Dakota, the Revised Code of 1883 is, as to this, taken lit- erally from that of California. 5 In Delaware, " An Act for acknowledging and recording of deeds," similar in many of its provisions to the Pennsylvania statute, was passed in the year 1742, and its fifth section was identical with that statute. 6 The act of 1829 was, however, more concise, providing that " where there is no express cove- nant in a deed, the words ' grant, bargain, and sell,' shall, unless specially restrained, imply a special warranty against a grantor and his heirs, and all claiming under him," 7 and in the Revised Statutes of 1852 8 and 1874 9 the same phraseology has been adopted. In Georgia, " a general warranty of title against the claims of 1 Winston v. Vaughan, 22 Ark. 72. 4 Lawrence v. Montgomery, 37 Cal. Unless the statutory words are limited by 183. Bryan v. Swain, 56 id. 616, was a express words in the deed, the covenant case of defence to payment of purchase must he construed as an express covenant money. Had the action been one on the against incumbrances done or suffered covenant, the decision might have been from the grantor. Brodie v. Watkins, 31 different. id. 319. 5 Levisee's Rev. Code, p. 882, § 628. 2 1 Hittell's Codes and Stat. Cal. 1876, 6 1 Booth's Del. Laws, 222. p. 705, § 6113. 7 Act of Feb. 7, 1829, § 5. 3 1 General Laws, 693 ; Wood's Dig. 8 Del. Rev. St. c. 83, § 3, p. 266. art. 388, § 9. 9 Rev. St. 1874, p. 500. 462 § 286.] AND HOW LIMITED OR QUALIFIED. [dlAP. XII. all persons includes in itself covenants of a right to sell, and of quiet enjoyment, and of freedom from incumbrances." l In Illinois, the provision in the Revised Statutes of 1839 and 1845 2 was copied almost literally from the section of the Pennsyl- vania act ; it was re-enacted in 1872, 3 and in the Revised Statutes of 1883, 4 and has received the same construction from the courts. 5 The covenants thus created were, it was once held, express and not implied covenants, made express by the very words of the statute, and could not therefore fall within the doctrine 6 that implied covenants are modified or restrained by express cove- nants in the same deed; 7 but in a later case it seems to have been considered that the statute, being in derogation of the com- mon law, should be strictly construed, and hence that when the deed contained express covenants, the statutory covenants were inoperative. 8 In Indiana, " any conveyance of lands worded in substance, 1 Georgia Rev. Code of 1868, p. 513, § 2661, re-enacted in the same words in Rev. Code of 1882, p. 672, § 2703. In Burk v. Burk, 64 Ga. 632, the defendant claimed that this provision meant simply that the grantor warranted the title to the interest sold, subject to such incumbrances as might exist thereon, but the court held that " this warranty must be construed as though it had said in express terms that there were at the time of sale no incum- brances on the property sold. . . . And if there were, at the time of the making of the deed, any incumbrances thereon, and if the evidence shows that the plain- tiff has sustained damages thereby, by being forced to pay off such incumbrances, this would constitute a breach of the warranty." This, of course, may give a broader effect to the statutory covenant than to a covenant of warranty, for al- though the fact of the plaintiff being forced to pay off an incumbrance would, accord- ing to the weight of authority, be a con- structive eviction, yet it would not be if he paid it off voluntarily (supra, § 150), and yet this would entitle him to dam- ages, measured by the amount paid, under the covenant against incumbrances (supra, § 192). 2 Scates's Comp. 961 ; Gross's Stat., 1870, p. 85, § 11. 8 111. Pub. Laws, 1871-72, p. 282, § 2. The irrelevant proviso in the Pennsyl- vania act (see supra, § 285) was also retained. * Rev. St. 1883, p. 280. 6 Prettyman v. Wilkey, 19 111. 235. 6 Supra, § 275. 7 Hawk v. McCullough, 21 111. 222. This case also held that the proper mode of declaring on such covenants was to set them forth at length as the statute de- clares their purport and meaning to be. 8 Finley v. Steele, 23 111. 56. "The statutory provision," said the court, "does not create this covenant against the inten- tion of the parties, but only where they intend that this statutoiy covenant shall operate and have effect, for the legislature has provided that these words shall not have this effect if they are limited by ex- press words in the deed. It would seem to be clear that the employment of any language from which it appears the parties intended that these words should not have such an effect, would be sufficient to do away with this statutory covenant. The question then recurs whether that inten- tion is manifested by the insertion of the general warranty in this deed," and this question was answered affirmatively. The Mississippi decisions (infra, p. 465) were considered to have been correctly made. 463 286.] IMPLIED COVENANTS FOR TITLE, [CHAP XII. ' A. B. conveys and warrants to C. D.,' shall be deemed and held covenants from the grantor and his heirs and personal representa- tatives, that he is lawfully seised of the premises, has good right to convey the same, and guarantees the quiet possession thereof, that the same are free from incumbrances, and that he will war- rant and defend the title to the same against all lawful claims." This was enacted in 1857, 1 re-enacted in 1876, 2 and incorporated in the Revised Statutes of 1881. 3 In Maryland, the Revised Code of 1878, following a previous statute passed in 1864, 4 is partially taken from the act of 8 & 9 Victoria. 5 1 Act of March 2, 1857, p. 82 ; 1 Gavin & Horcl's Stat., p. 260, § 12. While this State was a Territory, an act was passed in 1804, copied from the Pennsylvania statute of 1715, and by a subsequent act (Ind. Rev. St. 1843, c. 28, § 21) the provisions of the New York statute were copied, and until the act of 1857 no cov- enants were implied in that State by statute. 2 Act of 1876, 1 Rev. St. p. 364, § 12. 3 Ind. Rev. St. § 2927, the only differ- ence from the acts of 1857 and 1876 being the insertion of the words "the said con- veyance being dated and duly signed, sealed, and acknowledged by the gran- tor " before "shall be deemed and held to be," etc. The course of decision under these stat- utes seems to have been thus : In Carver v. Louthain, 38 Ind. 530, while it was ad- mitted that under a peculiar line of decis- ion in that State (see supra, p. 113, n. 2) parol evidence was admissible to show that the vendee took subject to a certain in- cumbrance, yet that this did not apply to actions on the statutoiy covenants, but the court obviously held that these were to be "regarded and treated as though they were incorporated in the deed. They constitute a part of the deed as though they were written therein." This was af- firmed in Kent v. Cantrall, 44 id. 316, and it was held that the covenant against in- cumbrances had the same force and effect as though written out in a deed at common law, the common law forms of pleading being applicable thereto, and that a gran- tee could voluntarily discharge an incum- 464 brance and hold his grantor liable for its amount, and this was incidentally ap- proved in Keiper v. Kline, 51 id. 316. The cases of Bethell v. Bethell, 54 id. 428, Craig v. Donovan, 63 id. 513, McClure v. McClure, 65 id. 482, and Fisher v. Parry, 68 id. 465, though actions on the statu- tory covenants, involved no question as to their construction, the question being whether the lex loci contractus or the lex loci rei sitw should govern, as to which see infra, Ch. XIII. 4 Acts of 1864, c. 252, § 1. 5 Rev. Code, 1878, p. 394, tit. 24, art. 44, § 67. "When in a deed convey- ing real estate, the words ' the said . . . covenants ' are used, such words shall have the same effect as if it was expressed to be by the covenantor for himself, his heirs, devisees, and personal representa- tives, and shall be deemed to be with the grantee in the deed, his heirs, devisees, and personal representatives and assigns. " § 68. A covenant by the grantor in a deed conveying real estate, ' that he will warrant generally the property hereby conveyed,' shall have the same effect as if the grantor had covenanted that he, his heirs, devisees, and personal representa- tives, will forever warrant the said prop- erty unto the grantee, his heirs, devisees, and assigns, against the claims and de- mands of all persons whomsoever. " § 69. A covenant by a grantor in a deed conveying real estate, ' that he will warrant specially the property hereby con- veyed,' shall have the same effect as if the grantor had covenanted that he, his heirs, devisees, and personal representatives, will § 286.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. In Mississippi, the section of the Pennsylvania act was copied almost literally in the statutes of 1822, 1 and re-enacted in the Revised Statutes of 1840, 2 and 1848, 3 and 1880. 4 In an early forever warrant and defend the said prop- erty unto the grantee, his heirs, devisees, and personal representatives and assigns, against the claims and demands of the grantor and all persons claiming or to claim by, through, or under him. "§ 70. A covenant by the grantor in a deed for land, ' that he is seised of the land, hereby conveyed,' shall have the same effect as if the grantor had cove- nanted that the said grantor at the time of the execution and delivery of the said deed is and stands lawfully seised of, in, and to the same. " § 71. A covenant by the grantor in a deed for land, ' that he has the right to convey said land,' shall have the same effect as if the grantor had covenanted that he has good right, full power, and absolute authority to convey the said land unto the grantee in said deed, in the man- ner in which the same is conveyed, or in- tended so to be, by the deed according to its true intent. " § 72. A covenant by the grantor in a deed for land, 'that the said (the gran- tee) shall quietly enjoy said land,' shall have the same effect as if he had cove- nanted that the said (the grantee), his heirs and assigns, might at any and all times thereafter, peaceably and quietly enter upon and have, hold, and enjoy the land conveyed by the deed, or intended so to be conveyed, with all the rights, privi- leges, and appurtenances thereunto belong- ing, and to receive the rents and profits thereof, to and for his or their use and benefit, without any eviction, interruption, suit, claim, or demand whatever, by the said (the grantor), his heirs or assigns, or any other person or persons whatever. "§ 73. A covenant by a grantor in a deed for land, ' that he has done no act to incumber said land,' shall he construed and have the same effect as if he has cove- nanted that he had not done or executed, or knowingly suffered any act, deed, or thing whereby the land and premises con- veyed or intended so to be, or any part thereof, are or will be charged, affected, or incumbered in title, estate, or otherwise. "§ 74. A covenant, by a grantor in a deed for land, ' that he will execute such farther assurances of said land as ma}' be requisite,' shall have the same effect as if he had covenanted that he, the grantor, his heirs or personal representatives, will at any time, upon any reasonable request, at the charge of the grantee, his heirs or assigns, do, execute, or cause to be done or executed, all such further acts, deeds, and things for the better, more perfectly and absolutely conveying and assuring the lands and premises hereby conveyed, or intended so to be, unto the grantee, his heirs and assigns, in manner aforesaid, as by the grantee, his heirs and assigns, or his or their counsel learned in the law shall be reasonably devised, advised, or required. " § 75. All deeds which have been heretofore executed in pursuance of the provisions contained in the preceding sec- tions from sixty-seven inclusive, shall be valid and effectual as if the covenants in said deeds had been expressed therein, in full. " § 76. The aforegoing forms, or forms to like effect, shall be sufficient, and any covenant, limitation, restriction, or proviso allowed by law may be added, annexed to, or introduced with the aforegoing forms." 1 13 June, 1822, c. 24, § 32. 2 Ch. 34, § 32. 3 Ch. 42, § 32, Hutchinson's Code, p. 610. 4 Rev. Code, p. 345, § 1196. The provision as it now stands is : " The words 'grant, bargain, sell,' shall operate as an express covenant to the grantee, his heirs and assigns, that the grantor was seised of an estate, free from incumbrances, made or suffered by the grantor (except the rents and services that may be re- served), as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in the conveyance ; and the grantee, his heira, 30 465 § 286.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. case, 1 the court gave no opinion as to the first of these implied covenants being limited to the acts of the grantor (though Gratz v. Ewalt was cited in the argument), but decided the case on the ground that the express covenant of warranty which the deed contained did away with the implied covenants. 2 " The covenants raised by law from the use of particular words in the deed are only intended to be operative when the parties themselves have omitted to insert covenants. But when the party declares how far he will be bound to warrant, that is the extent of his cove- nant." The effect of this is, of course, to deny to a purchaser the benefit of the statutory covenant for seisin when he has also received an express covenant of warranty, and under such cir- cumstances it would seem that there could never be a recovery without an eviction. In Missouri, since 1835, the Revised Statutes have provided that " the words grant, bargain, and sell, in all conveyances in which any estate of inheritance in fee simple is limited, shall, unless restrained by express terms contained in such conveyances, be construed to be the following expressed covenants on the part of the grantor, for himself and his heirs, to the grantee, his heirs executors, administrators, and assigns, sentatives will forever warrant and de- may, in any action, assign breaches, as if fend the title of the property unto the the covenants above mentioned were ex- grantee, and his heirs, representatives, and pressly inserted." Then follow provisions assigns, against the claims of all persona for " Forms for Conveyances," which, whomsoever, lawfully claiming the same, doubtless taken originally from the 8 & 9 " § 1234. The words ' warrant spe- Vict., will be found, more or less similar, cially ' in a conveyance shall constitute a in several of the States, viz. : covenant that the grantor, his heirs and "§ 1231. A conveyance of land may personal representatives, will forever war- be in the following form, and shall be as rant and defend the title of the property effective to transfer all the right, title, unto the grantee and his heirs, represent- claim, and possession of the person mak- atives, and assigns against the claims of ing it as can be done by any sort of con- all persons claiming by, through, or under veyance, viz. : the grantor." ' In consideration of [here state it] I 1 Weems v. McCaughan, 7 Sm. & convey and warrant to the laud de- Marsh. 427 ; see also Bush v. Cooper, 26 scribed as [describe it]. Witness my sig- Miss. 599. nature the day of , 188-. 2 This is correct when applied to the .' case of covenants contained in a convey- "§ 1232. If only a special warranty is ance for a term of years. In such case, intended, add the word ' specially ' to the the covenant implied from the words of word ' warrant ' in the conveyance. leasing is annulled by the insertion of an "§ 1233. The word 'warrant,' with- express covenant. Nokes' case, 4 Rep. out restrictive words, in a conveyance 80 ; Line v. Stephenson, 5 Bing. N. C. ; shall constitute a covenant by the grantor see supra, § 275. But this was not the that he and his heirs and personal repre- law as to the conveyance of a freehold. 466 § 286.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. and assigns : first, that the grantor was, at the time of the exe- cution of such conveyance, seised of an indefeasible estate in fee simple in the real estate thereby granted ; second, that such real estate was, at the time of the execution of such conveyance, free from incumbrances done or suffered by the grantor, or any person under whom he claims; third, for further assurance of such real estate to be made by the grantor and his heirs to the grantee and his heirs and assigns ; and may be sued upon in the same manner as if such covenants were expressly inserted in the conveyance." 1 This was re-enacted in the revision of 1845, 1855, 1865, and 1879, 2 and is still in force. 3 The second of these cove- nants is a limited one, while the first and third are general. In an early case, 4 the court, after a careful review of the English and Pennsylvania authorities, held that these three covenants were distinct and independent ; the second might be superfluous, but it did not therefore limit the first, which was independent of, and not inconsistent with it, and this decision seems to have been con- sistently adhered to. 5 The covenant for further assurance was at one time held to be the only one which could be taken advan- tage of by an assignee of the land, 6 but more recent decisions have 1 The first act was in 1804 (in Indiana Territory). In the same year it was enacted for the District of Louisiana, of which Missouri formed part until 1812 ; it was identical with the Pennsylvania stat- ute. In the Revised Statutes of 1825 it was declared that "the words grant, bargain, and sell shall be adjudged ex- press covenants for the bargainee or the grantee, his heirs and assigns, for the bargainor or grantor for himself, his heirs, assigns, and administrators, that the bar- gainor or grantor was, at the time of the execution of such deed, seised of an in- defeasible estate in fee simple, in and to the lands, tenements, and hereditaments thereby granted, bargained, and sold, and that the same was then free from incum- brances done or suffered from the bar- gainor or grantor, his heirs and assigns, and all claiming under him ; and also for further assurance thereof, to be made by the bargainor or grantor, his heirs and assigns, unless the same be restrained," etc. A reference to the legislation will be found in Clore v. Graham, 64 Mo. 249. 2 Until lately, the constitution of Mis- souri required that the laws should be re- vised every ten years. 3 Rev. St. 1879, p. 110, § 675. 4 Alexanders. Schreiber, 10 Mo. 461. 6 Collier v. Gamble, 10 id. 471 ; Arm- strong v. Darby, 26 id. 520 ; Clore v. Graham, 64 id. 249 ; Koenig v. Branson, 73 id. 634. This last case was decided upon the point of variance. 6 Collier v. Gamble, supra. In Shel- ton v. Pease, 10 id. 473, a purchaser took an express general covenant to warrant and defend against all titles, and partic- ularly against a certain mortgage which had been executed by his grantor. He paid off this mortgage and then brought suit upon his covenants. It was, however, held by the court that there was no breach of the covenant of warranty, and that the mortgage could not come within the scope of the statutory covenant against incum- brances, because, the grantor having cove- nanted to warrant and defend against the mortgage, he could not be supposed to mean to covenant against its mere 467 § 286.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. gone so far as to hold that all the statutory covenants run with the land to the successive owners thereof. 1 In Montana, it is provided : " The words ' grant,' ' bargain,' and ' sell,' in all conveyances hereafter made, in and by which any estate of inheritance, possessory title or fee simple is to be passed shall, unless restrained by express terms contained in such conveyance, be construed to be the following express covenants, and none other, on the part of the grantor, for himself, his heirs and assigns, to the grantee, his heirs and assigns : 1. That pre- vious to the time of the execution of such conveyance the grantor has not conveyed the same real estate, or any right, title, or in- terest therein, to any person other than the grantee. 2. That such real estate is at the time of the execution of such convey- ance free from incumbrances done, made, or suffered by the grantor or any person claiming under him; and such covenants may be sued upon in the same manner as if they had been ex- pressly inserted in the conveyance." 2 In Nevada, the words of the only statute on the subject are the same as those in Montana. 3 In New Mexico, it is provided : " The words ' bargained and sold,' or words to the same effect, in all conveyances of heredi- tary real estate, unless restricted in express terms on the part of the person conveying the same, himself and his heirs, to the per- son to whom the property is conveyed, his heirs and assignees, shall be limited to the following effect : 1. That the grantor, at the time of the execution of said conveyance, is possessed of an existence, but only against an eviction except so far as may be necessary effectually under it, which the voluntary payment to convey from her and her heirs all her of the mortgage was not. See supra, right, title, and interest, expressed to be § 150. conveyed therein," (as to which see infra, 1 Dickson v. Desire, 23 Mo. 151 (supra, Ch. XIII.), it was argued that the wife p. 313, n. 1); Chambers v. Smith, id. 174 ; was not liable on the covenant by reason Armstrong v. Darby, 26 id. 520 ; Magwire of the statute, and the husband was not v. Biggin, 44 id. 514. It is, however, bound, because she and not he was the held that these covenants do not operate to "grantor," but the court held that the pass an after-acquired estate by estoppel, mere statement of such a proposition was Gibson v. Chouteau, 39 id. 536, supra, its own refutation. p. 386, n. 4. The law is held otherwise in 2 Mont. Kev. St. 1879, p. 445, § 227. some States. Supra, p. 386, n. 2. The words are exactly the same in Ne- In Pratt v. Eaton, 65 id. 157, the deed vada, and both are evidently taken from was by husband and wife of her property, the California statute of 1855, supra, and inasmuch as the statute also provides p. 462. that " no covenant, express or implied, in 3 Act of Nov. 6, 1861 (first session), p. such deed shall bind the wife or her heirs 14, § 20 ; 1 Conip. Laws (1873), p. 86. 468 § 286.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. irrevocable possession in fee simple to the property so conveyed. 2. That the said real estate, at the time of the execution of said conveyance, is free from all incumbrance made or suffered to be made by the grantor, or by any person claiming the same under him. 3. For the greater security of the person, his heirs and as- signees, to whom said real estate is conveyed by the grantor and his heirs, suits may be instituted the same as if the conditions were stipulated in the said conveyance." 1 In Tennessee, the system of conveyancing is said to date back to the North Carolina act of 1715, 2 which, like similar enact- ments in many of the Colonies, provided for the transfer of estates by husband and wife. 3 Until the Code of 1871, there was no statutory provision as to covenants, but it was there provided : "The following or other equivalent forms, varied to suit the pre- cise state of facts, are sufficient for the purposes contemplated without further circumlocution. For a deed in fee with general warranty : ' I hereby convey to A. B. the following tract of land (describing it), and I warrant the title against all persons whom- soever.' Covenants of seisin, possession, and special warranty : ' I covenant that T am seised and possessed of the said land, and have a right to convey it, and I warrant the title against all persons claiming under me.' " 4 And this has been re-enacted literally in the Revised Statutes of 1884. 5 In Texas, it is provided in the Revised Statutes of 1879 : 6 1 Act of Jan. 12, 1852, Comp. Laws of nia certainly, custom had introduced the New Mex. § 2750. The words "heredi- practice long before any such laws were tary" and "irrevocable" naturally sug- enacted. gest the civil law origin of this legislation, 4 Thompson & Stegers's Stat, of 1871, and the Compiled Laws are printed in p. 939, § 2013. both English and Spanish. s Tenn. Code of 1884, p. 500, § 2820 ; 2 Chap. 38, § 5. and the Supreme Court has said, " These 3 It is one of the curious landmarks provisions disclose a clear legislative intent in the history of jurisprudence that al- to reduce the forms of conveyance to their though up to the year 1832, in England, simplest elements, and to give the largest the estate of a married woman could not meaning to granting words, unless limited be conveyed without levying a fine, (un- by the instrument itself." Daly v. "Willis, less the case came within the custom 5 Lea, (Tenn.) 100. of London, or there had been " dower 6 Tex. Rev. Stat. 1879, p. 93, art. 557. uses " in the deed to her husband, as to Prior to this, there seems to have been only which see supra, p. 23,) some of the a statutory short form of deed, like that for- earliest laws in the Provinces provided merly in force in South Carolina (supra, for the present mode of separate acknowl- p. 460, n. 1), and this is still retained in edgment by the wife, (which, indeed, al- the Revised Statutes, with the addition : most follows the exact words in a fine,) "No person shall be obliged to insert the and in some of the Colonies, Pennsylva- covenant of warranty, or be restrained from 469 286.] IMPLIED COVENANTS FOR TITLE [CHAP. XII. " From the use of the word ' grant ' or ' convey,' in any convey- ance by which an estate of inheritance or fee simple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs and assigns, are implied, unless restrained by express terms contained in such conveyance : 1. That previous to the time of the execu- tion of such conveyance the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee. 2. That such estate is at the time of the exe- cution of such conveyance free from incumbrances. 3. Such cov- enants may be sued upon in the same manner as if they had been expressly inserted in the conveyance." x In Virginia, the Revised Statutes of 1849 2 were, as to this, abridged and adapted from the 8 & 9 Vict. c. 119, and have been re-enacted literally in the Codes of 1860 3 and 1873. 4 inserting any clause or clauses in convey- ances hereafter to be made that may be deemed proper and advisable by the pur- chaser and seller ; and other forms not contravening the laws of the land shall not be invalidated." Rev. St. p. 93, art. 553. Art. 558 declares that the term "in- cumbrances" includes taxes, assessments, and all liens upon real property. 1 The resemblance will be noticed to the statutes in California, Montana, and Nevada, except that the covenant against incumbrances in Texas is not limited to those made or suffered by the grantor. 2 Rev. St. 1849, tit. 33, c. 117. 3 Code of 1860, c. 117, § 9 et seq. 4 Code of 1873, p. 893. It is there pro- vided : " § 9. When a deed uses the words ' the said covenants,' such covenant shall have the same effect as if it was ex- pressed to be by the covenantor, for him- self, his heirs, personal representatives, and assigns, and shall be deemed to be with the covenantee, his heirs, personal repre- sentatives, and assigns. " § 10. A covenant by the grantor in a deed, ' that he will warrant generally the property hereby conveyed,' shall have the same effect as if the grantor had covenanted that he, his heirs and personal represen- tative, will forever warrant and defend the said property unto the grantee, his 470 heirs, personal representatives, and assigns, against the claims and demands of all per- sons whomsoever. " § 11. A covenant by any such grantor, ' that he will warrant specially the prop- erty hereby conveyed, ' shall have the same effect as if the grantor had covenanted that he, his heirs and personal representatives, will forever warrant and defend the said property unto the grantee, his heirs, per- sonal representatives, and assigns, against the claims and demands of the grantor, and all persons claiming or to claim by, through, or under him. " § 12. The words ' with general war- ranty,' in the granting part of any deed, shall be deemed to be a covenant by the grantor 'that he will warrant generally the property hereby conveyed. ' The words ' with special warranty,' in the granting part of any deed, shall be deemed to be a covenant by the grantor ' that he will warrant specially the property hereby con- veyed.' " § 13. A covenant by the grantor in a deed for land, ' that he has the right to convey the same to the grantee,' shall have the same effect as if the grantor had covenanted that he has good right, full power, and absolute authority to convey the said land, with all the buildings there- on, and the privileges and appurtenances thereto belonging, unto the grantee, in 286.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. The West Virginia Revised Statutes of 1879 1 copied exactly the words of the Virginia Code, and these have been re-enacted in the Amended Code of 1884. 2 The Wisconsin Revised Statutes of 1878 3 provide that no cove- nant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not, 4 but they make an exception in the case of the short form of conveyance pro- vided by statute, 5 and declare that " such a deed shall have the effect of a conveyance in fee simple to the grantee, his heirs and assigns, of the premises therein named, together with all the appurtenances, rights, and privileges thereto belonging, with a covenant from the grantor, his heirs and personal representatives, the manner in which the same is conveyed or intended so to be by the deed, and ac- cording to its true intent. " § 14. A covenant by any such grantor, ' that the grantee shall have quiet posses- sion of the said land,' shall have as much effect as if he covenanted that the grantee, his heirs and assigns, might, at any and all times thereafter, peaceably and quietly enter upon and have, hold, and enjoy the land conveyed by the deed, or intended so to be, with all the buildings thereon, and the privileges and appurtenances thereto belonging, and receive and take the rent and profits thereof to and for his and their use and benefit, without any eviction, in- terruption, suit, claim, or demand what- ever. If to such covenant there be added ' free from all incumbrances,' these words shall have as much effect as the words ' and that freely and absolutely acquit- ted, exonerated, and forever discharged, or otherwise by the said grantor or his heirs saved harmless and indemnified of, from, and against any and every charge and in- cumbrance whatever.' " § 15. A covenant by any such grantor ' that he will execute such further assur- ances of the said lands as may be requi- site,' shall have the same effect as if he covenanted that he, the grantor, his heirs or personal representatives, will at any time, upon any reasonable request, at the charge of the grantee, his heirs or assigns, do, execute, or cause to be done or executed, all such further acts, deeds, and thinus, tor the better, more perfectly and absolutely conveying and assuring the said lands and premises, hereby conveyed or intended so to be unto the grantee, his heirs and as- signs, in manner aforesaid, as by the gran- tee, his heii'S or assigns, his or their counsel in the law, shall be reasonably devised, advised, or required. " § 16. A covenant by any such grantor, 4 that he has done no act to incumber the said lands,' shall have the same effect as if he covenanted that he had not done or executed, or knowingly suffered, any act, deed, or thing whereby the lands and premises conveyed or intended so to be, or any part thereof, are, or will be, charged, affected, or incumbered in title, estate, or otherwise. . . . " § 23. A covenant by a lessor, ' for the lessee's quiet enjoyment of his term,' shall have the same effect as a covenant that the lessee, his personal representa- tives and lawful assigns, paying the rent reserved, and performing his or their cove- nants, shall peaceably possess and enjoy the demised premises, for the term granted, without any interruption or disturbance from any person whatever." 1 Eev. St. 1879, p. 473, c. 64, § 12 et seq. 2 Warth's Amend. Code, c. 62, § 12 et seq. 3 Rev. St. 1878, p. 632, § 2208. This is not practically altered in the Supple- ment of 1883, p. 469, § 2208. 4 Taken of course from the New York Statutes : see supra, p. 438, n. 3, p. 459. 5 Like those in so many of the Western States. 471 § 287.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. that he is lawfully seised of the premises, has good right to con vey the same, that he guarantees the grantee, his heirs and assigns, in the quiet possession thereof, that the same are free from all incumbrances, and that the grantor, his heirs and per- sonal representatives, will forever warrant and defend the title and possession thereof in the grantee, his heirs and assigns, against all lawful claims whatsoever ; any exceptions to such covenants may be briefly inserted in such deed, following the description of the land." 1 But as has been already said, this reference to local statutory provisions is submitted with much diffidence as to its correctness. § 287. The question how far covenants for title may be limited or enlarged by the operation of other covenants in the same deed has arisen upon both sides of the Atlantic in cases between ex- press covenants, and in the United States, as has already been partially seen, between express covenants and those implied by local statutes. 2 Covenants for title are of course either general, that is, cove- nants against the acts of all persons whomsoever claiming by title ; or limited, that is, covenants against the acts of the cove- nantor or some other particularly named person ; 3 and in the latter case they are of course not broken by the acts of any others than those named. 4 But it sometimes happens that through accident or careless- ness one or more limited covenants are found with one or more general covenants in the same conveyance, hence presenting the contradiction of a vendor being only willing to covenant against his own acts, while at the same time he covenants against those of all persons, and whether under such circumstances the general covenants are to enlarge those which are limited, or whether they are to be restrained by them, is often a question of some per- 1 Messer v. Oestreich, 52 Wis. 685. And observes, " Although, this is the usual and see supra, p. 459. n. 7. technical manner of restraining covenants, 2 Although for the sake of convenience yet an agreement in any part of a deed such statutory covenants are sometimes that the covenants shall be restrained to thus called implied covenants, yet it must the acts of particular persons will be good, be borne in mind that the statutes invari- notwithstanding that the covenants them, ably declare that they shall be deemed to selves are general and unlimited." Sugd. be express covenants. on Vend. 493 ; Brown v. Brown, 1 Lev. 3 The form by which the covenants are 57 ; see infra, § 295. thus restricted is given in the second chap- 4 Supra, pp. 24, 119. ter, supra, pp. 24, 28, 29 ; but as Sugden 472 § 288.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. plexity and importance ; 1 for on the one hand, as has been said, " However general the words of a covenant may be, if standing alone, yet if from other covenants in the same deed it is plainly and irresistibly to be inferred that the party could not have intended to use the words in the general sense which they import, courts will limit the operation of the general words ; " 2 and on the other, the application of the maxim, Verba cartarum fortius accipiuntur contra proferentem, would forbid the limitation of general covenants unless the intention clearly appear on the face of the instrument. § 288. Sugden has considered that four propositions can be deduced from the authorities, viz. : — First. Where restrictive words are inserted in the first of sev- eral covenants having the same object, they will be construed as extending to all the covenants, although they are distinct. Second. Where the first covenant is general, a subsequent lim- ited covenant will not restrain the generality of the preceding covenant, unless an express intention to do so appear, or the covenants be inconsistent. Third. As on the one hand a subsequent limited covenant does not restrain a preceding general one, so, on the other hand, a preceding general covenant will not enlarge a subsequent limited covenant. Fourth. Where the covenants are of divers natures, and con- cern different things, restrictive words added to one shall not control the generality of the others. 3 1 " Every case must depend upon the are placed by Sugden under the first, particular words used in the instrument Dart, in his treatise on Vendors (5th ed. before the court, and the distinctions will 789), in quoting the above classification of be found to be very nice and difficult." Sugden, observes : " Of the above proposi- Note to Gainsford v. Griffith, 1 Saund. 59. tions, the first, if read in connection with 2 Per Lord Alvanley in Hesse v. Ste- the above classification of the covenants venson, 3 Bos. & Pull. 575. and of their separate objects, seems to be 3 Sugd. on Vend. (14th ed.) 605. Piatt warranted by the authorities; the second' has arranged the cases under two heads : proposition (which together, or rather as 1 . Where words of qualification in the connected with the first, has been disputed first part of a deed will apply to and limit in Sweet's edition of Jarman on Convey- covenants in general terms in a subsequent ancing, vol. ix. p. 383) is perhaps hardly part of the deed ; and, 2. Where a quali- accurate ; for although a prior general cov- fication in the latter part of the instru- enant will not, it appears, be restrained by ment will narrow a preceding covenant a subsequent limited covenant having a expressed in general language. Piatt on different object, yet where two covenants Covenants, 358. Many of the cases, how- relate to the same object, restrictive words ever, cited by Piatt under the second head in the second may, it seems, control the 473 § 289.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. § 289. First. The case of Browning v. Wright 1 is a leading one upon the subject of one covenant being restrained by another, and is generally classed under the first of these heads. In a deed purporting to convey an estate of fee simple, there was, first, a warranty 2 by the covenantor against himself and his heirs, fol- lowed by a covenant that notwithstanding any act done by him he was seised, etc., without any manner of condition or restraint to alter or defeat the estate granted, " and that he had good right and full power to convey the same in manner aforesaid" and then followed limited covenants for quiet enjoyment and for further assurance. The covenantee was evicted 3 by a title not within the limited covenants, and on a demurrer to the declara- tion it was argued, on his behalf, that to adopt the rule contended for by the defendant — that the restriction of the prior special covenants must be engrafted on the subsequent general one — would be to establish the doctrine that whenever a special cove- nant was inserted, all general covenants must be restrained thereby. It was, however, said by the court, that if the doctrine did indeed necessarily follow, the demurrer could not be sus- generality of the first. The third and fourth propositions seem to be unimpeach- able." Some of the authorities, however, do not appear to take any distinction be- tween cases where a general or unlimited covenant precedes a special or limited one, and where it follows it ; in other words, the mere priority of position in the con- veyance of one over the other seems very often to be thought a matter of little or no moment. Thus, in Iggulden v. May, 9 Ves. 325, it was said the expo- sition must be both ex antecedentibus et ex consequentibus, and in a note to Gains- ford v. Griffith, 1 Saund. 60 a, where some distinctions are noticed with respect to this matter of priority, Sergeant Williams observes : "It is questionable whether much regard would now be paid to this mode of construction. The chief object of courts of law at present is to discover the true meaning of the parties, and to construe the covenants accordingly. As far as the difference above laid down would tend to find out the intention of the par- ties, so far would it now be adopted and no further. The proper rule seems to be that which Lord Mansfield laid down in a 47-i case where the question was whether cer- tain words in a covenant amounted to a condition precedent or not, ' that the de- pendence or independence of covenants was to be collected from the sense and meaning of the parties, and that however transposed this might be in a deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance.' " Kingston v. Preston, cited in Jones v. Barkley, Doug. 684. So it was said by Dallas, C. J., in Foord v. Wilson, 8 Taunt. 543, noticed infra, p. 477, " The order in which the covenants stand, however transposed, is comparatively unimportant," and it was so considered in Emmet v. Quinn, 7 On- tario App. 306, 324. i 2 Bos. & Pull. 13. 2 Expressed as iu Williams v. Burrell, supra, p. 444, n. 3. 3 It was a constructive eviction. The covenantee became a tenant under the su- perior title. The reporters doubt, in a note to the case, whether this would be an eviction, and at that day it would prob- ably not have been so considered. But see supra, § 131 et seq. § 289.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. tained ; but the question was not whether a special covenant will restrain a general one, but whether the particular covenant on which the action was brought was general or special, and Lord Eldon 1 (after premising that in conveyances of a fee simple es- tate the purchaser was, according to the general practice, entitled to limited covenants only 2 ) said : " My opinion upon considering the whole deed is that it is a special one. What would be the use of the other covenants, if this were general ? It would be of little service to the grantor to insist that the warranty, and the covenants for quiet enjoyment and further assurance, were spe- cially confined to himself and his heirs, if the grantee were at liberty to say, ' I cannot sue you on these covenants, but I have a cause of action arising upon a general covenant which supersedes them all.' It appears to me, from the words and context of the deed, that in such case we should be driven to say, that the grantor intended at the same time to give a limited and an unlim- ited warranty. The true meaning, therefore, of the covenant is, that the grantor has power to convey and assure according to the terms used, to which terms he refers by the words ' in manner aforesaid,' namely, ' for and notwithstanding anything by him done to the contrary. ' " 3 vendor. So in Gervis v. Peade, Cro. Eliz. 615, tenant pur autre vie made a lease for twenty-one years, and covenanted that he had not done any act to prejudice the said lease, but that the lessee should enjoy it against all persons. The cestui que vie died, and the lessee, being evicted, brought covenant against his executor, " and it was adjudged that it lay not, for the last words, ' but that he shall enjoy it against all persons,' refer to the first words, viz. ' for any act done by him, ' and so the cov- enant is not broken." So in Clanrickard v. Sidney, Hob. 273, where in a grant of the third part of certain lands there was a covenant for quiet enjoyment of such third part, and a general covenant for further assurance, it was held that the latter was " restrained to the limits of the bargain, being joined to the former covenant of en- joyment under the same line and covenant as depending upon it, which was expressly only of the third part." In the case in the Irish Chanceiy of Martyn v. M'Namara, 4 Dru. & War. 424, where certain fee simple estates and also lands held under 475 1 Then Ch. J. of the Common Pleas. 2 As to this, see supra, § 25 et seq. 8 Lord Eldon added : "With respect to the cases which have been cited, it is to be observed that when a general principle for the construction of an instrument is once laid down, the court will not be re- strained from making their own applica- tion of that principle, because there are cases in which it may have been applied in a different manner. The principle be- ing once acknowledged, the only difficulty consists in making the most accurate ap- plication of it." In the early case of Nervin v. Munns, 3 Lev. 46, the vendor covenanted that not- withstanding any act done by him to the contrary, he was seised in fee, that he had good right to convey, that the lands were clear of all incumbrances made by him, his father or grandfather, and that the vendee should quietly enjoy the estate against all persons claiming under the vendor, his fa- ther or grandfather ; and it was held that the second covenant, though general, was restrained by the first to acts done by the § 289.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. An early case in New York 1 was somewhat similar to Brown- ing v. Wright, and was decided upon its authority. Air undivided moiety of land was conveyed, " containing, by estimation, six hundred acres, and the same is hereby covenanted and warranted to contain at least five hundred acres." There was a limited covenant that in case of eviction from all or any part of the granted premises, the grantor should not only refund a propor- tional part of the consideration money, but should pay the value of the improvements, etc. Then followed a covenant for seisin and right to convey " in manner and form aforesaid." " There were also," the report says, " covenants for quiet enjoyment, against incumbrances, for further assurance, and a warranty," but whether these were general or limited is not mentioned. In the course of the prior conveyances from the original patentee to the defendant, there had been some reservations of certain parcels of the land, amounting altogether to several hundred acres, and although the plaintiff had actually received, under his deed from the defendant, over seven hundred acres exclusive of these reser- vations, he contended that the covenant for seisin, being general, was broken as to these parts ; that by warranting that there should be five hundred acres at least, the inference was that there might be more, and, if more, that the covenants were to extend to it. As it has been conclusively settled that covenants for title do not extend to the quantity of land conveyed, unless such clearly appear to be the intention, 2 it is difficult to perceive how there could, on this ground, have been a doubt as to the decision. The case was, however, considered by the court with- out reference to this principle, and it was held that the first warranty, being only to the extent of five hundred acres, the other covenants went no further, the words " in manner and form aforesaid " being sufficient to connect them with this limited covenant. 3 leases for life renewable forever were con- Chancellor (Sugden) as to the effect of veyed to trustees under a marriage settle- these covenants upon each other did not ment, with a covenant by the settlor with form any part of the decision, he saying the lady's father that the property was of expressly, "I am not now to decide the a given value, followed by a general cove- question as to the legal extent of this nant for good title, and then a particular covenant." covenant by the settlor during his life to 1 Whallon v. Kauffman, 19 Johns. 98. renew these leases, then succeeded lim- 2 See infra, § 297. ited covenants for quiet enjoyment and 3 Davis v. Lyman, 6 Conn. 252, was a for further assurance, the remarks of the very clear case. In a couveyance of a fee 476 289.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. Browning v. Wright was followed in England by a case l where the assignor of a term of years covenanted that he had done no act to incumber, that notwithstanding any such act the lease simple estate, the vendor covenanted that lie had done no act to affect the title, and that the premises were clear of all mort- gages, judgments, or liens of the said par- ties of the first part of any nature or kind whatsoever, followed by a limited covenant of warranty, and it was held that all the covenants were limited, which was unquestionably correct, not only on ac- count of the intimate connection between the first and second covenant, but from the very words of the covenants. In Mil- ler v. Heller, 7 Serg. & Eawle, (Pa.) 32, Miller had, in June, 1789, purchased land at sheriff's sale, as the estate of Jones. In November of that year, and while the lat- ter was still in possession, Miller assigned his estate in the land to Heller, giving him a bond with this recital and condi- tion : " Whereas George Miller above said, by a certain assignment on a deed executed by the sheriff of Northumberland County to him (Miller) for certain premises there- in described, did grant, bargain, sell, and convey the said premises, by a warranty in said assignment mentioned, unto him, the said John Dieter Heller, and to his heirs and assigns forever ; now the condition of the above obligation is such, that if the above bounden Miller or his heirs shall and do deliver peaceable possession of said premises to said Heller or his heirs, at or before the fifteenth day of April now next, and warrant and defend the said premises against the present possessor, Jones, and all and every person attempting to hinder said Heller or his assigns from taking possession thereof as is aforesaid, and against said Miller and his heirs and as- signs, then the obligation to be null," etc. Miller brought an ejectment against Jones, in which he recovered possession, and de- livered it to Heller ; but the latter, being afterwards evicted by one who claimed un- der Jones, brought debt on the bond. The court held, however, that the condition in the bond was evidently limited in its ap- plication to Jones himself, and not only did not extend to any one claiming under him, but was confined to the single act of putting the plaintiff in possession at or before a certain time, and this having been done the condition of the bond was satisfied. So on the other hand, in Ireland v. Bircham, 2 Scott, 207, 2 Bing. N. C. 90, it was held that a covenant lor quiet en- joyment was tied up until the lease to which it related should be a lease in possession. The defendant and another leased to the plaintiff the residue of a term of thirty years granted in August, 1815, to commence on the expiration of a lease for twenty-one years granted in November, 1815 ; that is to say, the res- idue then demised was to commence in 1836. The lessor covenanted severally but not jointly, nor the one for the other, that the plaintiff, paying the rent reserved and performing the other covenants in the lease contained, should, during the term demised, quietly enjoy the premises with- out disturbance of the defendant or his co-lessor, or of any person claiming by, from, or under them or any of them. This co-lessor having failed in payment of the rent due to the original grantor of the lease, the latter, in 1827, evicted the plain- tiff, who had been previously in possession under the lease of November, 1815, who then brought covenant, and it was held by the court (Tindal, C. J.) that the cov- enant in question was tied up to a cove- nant for quiet enjoyment during the term; that the words, the plaintiff paying tJie said rent, etc., should during the term thereby demised quietly enjoy, was a con- ditional covenant, and the condition was only to be performed when the lessee should be in possession of the premises under the lease ; it was, therefore, only a prospective covenant for quiet enjoyment for a term, to commence in 1836, and as the condition could not take effect till that period should have arrived, so neither could the obligatory part of the covenant. 1 Foord v. Wilson, 8 Taunt. 543 ; 2 J. B. Moore, 592. 477 § 289.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. was a good and subsisting one, and that he had good right to assign in manner aforesaid. Notwithstanding it was urged with much force that in the conveyance of a leasehold estate, where the title could not be so easily examined as in the case of a free- hold, 1 the purchaser must expect greater security from the cove- nants, it was clearly held by the court that the intention of the parties was too plain to be gotten over, that the words " and that " connected the general covenant with the preceding limited one, and that the case was not distinguishable from Browning v. Wright, the only difference being as to the nature of the estate transferred. A later case went further than these. 2 The vendor of a term of eleven years, if S. C. should so long live, covenanted that notwithstanding any act done by him the lease was valid, and that the same and the term of eleven years therein expressed were respectively in full effect, and in no wise determined or prejudicially affected otherwise than by effluxion of time ; and also that notwithstanding any such act the vendor had full power to sell for the residue unexpired by effluxion of time ; then fol- lowed limited covenants for quiet enjoyment and for further assurance. The life, however, on which the lease depended, had dropped before this assignment, and the covenantee was evicted by the remainderman. It was urged for the plaintiff that the words in the second covenant, " otherwise than by effluxion of time," rendered the idea of its restriction nonsensical, as efflux- ion of time could have been no act of the covenantor ; but it was nevertheless held that these words were indeed unnecessary, but that too strong inferences could not be safely drawn from that quality in legal documents ; that on the other hand, the absurdity of guarding himself from covenanting against any acts but his own, and in the same breath covenanting that the term was not affected by the acts of any person whatever, was glaring, and was rendered still more so by the repetition of the qualifying words in the succeeding covenants, and it was held that the case came within the authority of Browning v. Wright. 3 1 See supra, §26. " we are not likely to derive much assist- 2 Stannard v. Forbes, 6 Ad. & Ell. ance from the former decisions that may 572 ; 1 Nev. & Perry, 633. be cited, as every instrument varies in 3 " In performing this task on any some respects from all others, and must particular occasion," said Lord Denman, be interpreted according to its own Ian- 478 290.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. The class of cases, then, which may be said to be based upon Browning v. Wright, appears to decide that where the instrument contains one or more general or unlimited covenants, which are connected with or refer to and have the same object as one or more preceding limited covenants so as to join the latter with the former, it will be inferred that the covenantor intended that all the covenants should be restricted to his own acts or the acts of those claiming under him, and the preceding limited covenants will qualify and restrain the general ones ; in other words, when it clearly appears that the covenants are, as it were, cast in one mould, all having the same extent, courts will not pick out one of them in which the limitation is less strongly or distinctly expressed than in the others, and upon it fasten on the cove- nantor a general liability. § 290. In the absence, however, of any such direct connection with or reference to each other as would clearly lead to the above guage. It should seem that the true grammatical sense of the words employed, when that can he ascertained, must pre- vail ; and no case can be quoted in which our courts have thought themselves at liberty to act in direct contravention of it. Such a course might indeed become neces- sary, for a deed may contain repugnant clauses ; where these occur, the authorities fully warrant us in comparing the clause under immediate consideration with all which precedes and follows it, even though not forming parts of the same sentence, and with the nature of the obligations en- tered into, for the purpose of discovering and effectuating the intention really ex- pressed by the parties." In all these cases it will be observed that the words of connection between the covenants were copulative conjunctions. But in Broughton v. Conway, Dyer, 240, (see this case approved by Lord Ellen- borough in Gale v. Eeed, 8 East, 89, and applied to covenants contained in an agree- ment for the dissolution of a partnership,) a covenant that the vendor had not done any act whereby the grant might be in any manner impaired, but that the latter might enjoy without the disturbance of him or any other person, was held to be confined to acts done by the vendor ; though of this case Sugden remarks : "Certainly there were express words to get over, namely, 'or any other person,' which circumstance does not occur in any other of this line of cases, in all of which the reader will perceive that no word was rendered inoperative (except perhaps in Stannard v. Forbes, where the words ' otherwise than by effluxion of time ' were rendered inoperative or useless by the con- struction adopted by the court). But the introductory clause was merely held to extend over all the distinct covenants, in the same manner as a general introduction to a will frequently influences the whole will." 2 Sugd. on Vend. (10th ed.) 528. This comment is omitted in the 14th edition. In Petes & Jervies's case, cited in the note to Broughton v. Conway, Dyer, 240, " Tenant pur autre vie leases for twenty- one years, and covenants that he has not done any act, but the lessee shall or may enjoy it during the years. Afterwards, within the twenty-one years, cestui que vie dies ; adjudged that the action of covenant does not lie, for but refers the words sub- sequent to the words preceding." The case is the same as Gervis v. Peade, re- ported Cro. Eliz. 615. See supra, p. 475, n. 3. 479 § 290.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. conclusion, when the limited covenants belong to a different class, or rather have a different object from the unlimited ones, they will be held to produce no effect upon each other, and the former will not qualify the latter. This distinction between the different covenants was briefly recognized in an early case, 1 and was subsequently carried to its full extent in Howell v. Richards. 2 The defendant covenanted that notwithstanding any act done by him he was seised and had good right to convey, " and likewise " that the plaintiff should quietly enjoy without the interruption of the defendant or his heirs or any other persons whatsoever, followed by a similar general covenant against incumbrances, " excepting only a chief rent." It was contended (partially on the authority of Browning v. Wright) that these last two general covenants were restrained by the former limited ones, but Lord Ellenborough held that there was no connection whatever between them. Not only were there no such copulative words as to lead to the conclusion that they were all to be considered together, but great stress was laid upon the different character and object of the limited and of the general covenants. 3 1 Norman v. Foster, 1 Mod. 101, where Hale, C. J., said, "If I covenant that I have a lawful right to grant, and that you shall enjoy notwithstanding any claiming under me, these are two several covenants, and the first is general and not qualified by the second," to which Wylde, J., agreed, and said that one covenant went to the title and the other to the possession. 2 11 East, 633. 3 "It is perfectly consistent with rea- son and good sense that a cautious grantor should stipulate in a more restrained and limited manner for the particular descrip- tion of title which he purports to convey, than for quiet enjoyment. [As to this see the remarks of Tilghman, J., in Bender v. Fromberger, 4 Dall. (Pa.) 441, cited infra, p. 489, n. 4.] He may suspect or even know that his title is, in strictness of law, in some degree imperfect ; but he may at the same time know that it has not become so by an act of his own ; and he may likewise know that the imperfection is not of such a nature as to afford any rea- sonable chance of disturbance whatever to 480 those who should take under it ; he may therefore very readily take upon him an indemnity against an event which he con- siders as next to impossible, whilst he chooses to avoid a responsibility for the strict legal perfection of his title to the estate, in case it should be found at any future period to have been liable to some exception at the time of his conveyance. He may have a moral certainty that the existing imperfections will be effectually removed by the lapse of a short period of time, or by the happening of certain im- mediately then impending or expected events of death, or the like ; but these imperfections, though cured so as to obviate any risk of disturbance to the grantee, could never be cured by any sub- sequent event, so as to save the breach of his covenant for an originally absolute and indefeasible title. The same pru- dence, therefore, which might require the qualification of one of these covenants might not require the same qualification in the other of them, affected as it is by different considerations and addressed to a § 290.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. So in Duval v. Craig x the vendors covenanted that the premises were free of all incumbrances created or suffered by them or either of them, and that they would, against themselves and all and every person whomsoever, warrant and defend the premises, " with this warranty and no other, to wit, that if the said land or any part thereof shall at any time be taken by a prior legal claim or claims, that then and in such case " they would make good the part so lost with other land of equal quality and quantity, to be adjudged of by two impartial men, etc. " It is contended," said Story, J., who delivered the opinion, " that the two covenants in the deed are so knit together that they are to be construed in connection so that the clause as to an indemnity with other lands, in case of an eviction by a prior legal claim, is to be applied as a restriction to both covenants, and if so, then the action cannot be sustained, for the declaration does not allege any eviction, or any demand or refusal to indemnify with other lands. There is certainly considerable weight in the argument. It is not unreasonable to suppose that when the parties have pro- vided a specific indemnity for a prior claim, they mean to apply the same indemnity to all the other cases enumerated in the first covenant. But something more than the mere reasonableness of such a supposition must exist to authorize a court to adopt such a construction. The covenants stand distinct in the deed, and there is no incongruity or repugnancy in considering them as independent of each other. The first covenant being only against different object." Lord Ellenborough added this was to be the only exception. The that he did not find any ease in which the distinction noticed in Howell v. Richards covenant for quiet enjoyment was all one between the different natures of the cove- with the covenant for title, or parcel of nants was also observed in the opinion that covenant, or in necessary construction delivered by Sewall, J. , in Sumner v. AVil- to be governed by it otherwise than as, Haras, 8 Mass. 162, already referred to : according to the general rules for the con- "The covenants preceding and the cove- struction of deeds, every deed was to be nants subsequent to the covenant against construed ; that is, according to the in- incumbrances are not of the same import, tention of the parties. In this decision Covenants respecting the seisin, the power little stress appears to have been laid on to convey, and the general title, may well the presumption that the covenant against consist with a restrictive covenant against incumbrances was meant to extend beyond incumbrances. 2 Roll. 250, 1. 5. And, the acts of the covenantor from the fact taken together, the several covenants stand that there was expressly excepted "the unconnected in sense and expression, and chief rent issuing to the lord of the fee, if uncontrolled the one by the other." See any such should be due ; " and on the also Peters v. Grubb, 21 Pa. 460. maxim that expressio unius est exclusio l 2 Wheat. (S. C. U.S.) 45. alterius, it might be fairly inferred that 31 481 § 290.] IMPLIED COVENANTS FOE TITLE, [CHAP. XII. the acts and incumbrances under the parties to the deed, which they could not but know, they might be willing to become re- sponsible to secure its performance by a pecuniary indemnity ; the second including a warrant against the prior claims of stran- gers also, of which the parties might be ignorant, they might well stipulate for an indemnity only in lands of an equivalent value. The case ought to be a very strong one which should authorize a court to create, by implication, a restriction which the order of the language does not necessarily import or justify. It ought to be one in which no judicial doubt could exist of the real intention of the parties to create such a restriction. It cannot be pro- nounced that such is the present case." x The case of Estabrook v. Smith, 2 in Massachusetts, went beyond this, and apparently further than the authorities warrant. There the deed contained a covenant against all incumbrances except a certain mortgage, followed by a general covenant of warranty, and it was claimed for the defendant that the exception of the mortgage in the cove- nant against incumbrances extended to the covenant of warranty, but the court conceived that as the two covenants were not connected covenants, of the same import and directed to one and the same object, the one was not qualified by the other. " The defendant," said Metcalf, J., " might well covenant to warrant against the eviction of the plaintiff by the holder of the mortgage, though he could not covenant against all incumbrances without rendering himself forthwith liable to an action for nominal dam- ages at least for breach of such covenant." In a later case in Ohio, however, where the covenants were practically to the same effect, the authority of this case was denied, and a different con- struction adopted by the court. 3 In Nind v. Marshall, 4 however, the covenants in the assignment of a leasehold were, that notwithstanding any act done by the seller the lease was a valid one, and further, that the purchaser 1 So in a case in the Irish Queen's covenant neither grammatically nor sub- Bench (Kean v. Strong, 9 Irish L. 74, where stantially connected with the former. " it was urged that an unlimited covenant And see this case infra, p. 491, n. 5. for the renewal of a lease was not qualified 2 6 Gray, (Mass.) 572. by a subsequent limited covenant for quiet 8 Bricker v. Bricker, 11 Ohio, 240. enjoyment) it was said, " It has never See Jackson v. Hoffman, infra, p. 499, been held, and it would be against prin- n. 1. ciple to hold, that one distinct express 4 1 Brod. & Bing. 319 ; s. c. 3 Moore, covenant should qualify another express 702. 482 § 290.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. might peaceably enjoy without interruption from the seller, his executors, etc., or any other person or persons whomsoever having or lawfully claiming any estate in the premises, and that free from incumbrances by the seller, concluding with a limited covenant for further assurance. Here, then, were three limited covenants, and one — the covenant for quiet enjoyment — unlimited, if it were to be construed as standing alone. The plaintiff having been evicted by a title paramount to that of the defendant, it was strongly urged that the case was identical with Howell v. Richards, the limited covenants being those which assured the title, and the absolute one that which assured the possession, and hence the rea- soning of Lord Ellenborough was directly applicable, and further, that a different construction would render inoperative the words " or any other person or persons whomsoever." It was, however, held l that the case was distinguishable from Howell v. Richards, which, it was said, proceeded mainly upon the exception of a chief rent from the covenant against incumbrances, which thereby indi- cated that with that exception the covenant was to be a general one ; but that in this case the covenant against incumbrances, which was unquestionably limited, was intimately connected with that for quiet enjoyment ; so much so, that there would be no use of superadding that no judgment suffered by the covenantor should operate to the covenantee's disturbance, if the covenant for quiet enjoyment were to stand absolute and unqualified, that no lawful claim whatever should operate to his disturbance. With respect to the generality of the expression " all persons whomsoever," said Dallas, C. J., " I think that those must be construed to mean persons of the description in the other covenants, that is, persons claiming under the covenantor, or persons claiming under them." But Park, J., in dissenting, observed that the circumstance of the chief rent in Howell v. Richards formed no ingredient in the judgment in that case ; " it was not even hinted at, and was only mentioned by Lord Ellenborough in stating the record ; " and in- deed the distinction taken by that learned judge (which Sugden has observed to be a very just one) between the different natures of the covenants, seems not to have been observed in Nind v. Marshall. 2 1 Dallas, C. J., and Eichardson and Irish. B. Eq. 113, a father, seised of lands Burroughs, JJ. (Parks, J., dissenting). under a lease for three lives, conveyed 2 So in Thompson v. Thompson, 6 them upon the marriage of his son, in 483 § 290.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. In a more recent case, 1 a house which had been the property of Ann Hopley was, after her death, sold by her daughter as her strict settlement, by words applicable to lauds held in fee simple, with a recital that he was seised of them in fee, and with covenants on the part of father and son that the lands should continue to the several uses of the settlement, and tJuit free and clear from all former grants, incumbrances, etc. made or suffered by both or either of them. The court, rely- ing on Nind®. Marshall, held that the two covenants formed "either one entire cove- nant, or at least one single clause," and that the general terms of the covenant for quiet enjoyment were restricted by the covenant against incumbrances. In Dick- inson v. Hoomes, 8 Grat. (Va. ) 353, the authority of Nind v. Marshall was re- lied upon, but not sustained by the court. The case is noticed at some length in the fourth edition of this treatise, p. 510. The student must not mistake the dissenting opinion of Moncure, J., which is fifty-five pages long (pp. 383-438), for the opinion of the majority of the court, which was delivered by Allen, J., p. 438, and occupies but a single page, as the former opinion is minted first, immediately after the argu- ments of counsel. In considering the cases of Howell v. Richards and Nind v. Marshall, their dif- ference seems to be this. In the former it was not clear that the covenantor did not mean the covenants for quiet enjoyment and against incumbrances to be unlimited, both from the fact of the chief rent being the only exception to the latter and for the reason that a covenantor might not feel safe in warranting the absolute per- fection of his title, though he would feel justified in warranting against the im- probable consequences of a flaw in it. Here then the apparent intention of the covenantor, and the rule Verba cartarum fortius accipiuntur contra proferentem, went together, and the two covenants were accordingly held to be unlimited. But in Nind v. Marshall, if the intention of the covenantor had been that one of the covenants should be unlimited, as it might seem on the one hand to be from the use of the words "and all persons whomsoever," the direct words of con- nection with the other limited covenants would have to be disregarded ; while on the other hand, if the intention were that all the covenants should be limited to his own acts, the words "and all persons whomsoever," would either have to be disregarded or receive a somewhat forced construction. There can be little doubt that the latter was the intention of the draftsman, who evidently had not in his mind the train of reasoning noticed by Lord Ellenborough, and in this dilemma the intention of the covenantor was con- strued with much liberality. Indeed, the rule of law which requires a strict con- struction put on the words of the party using them is as to this subject seldom or never applied, except where the inten- tion of the covenantor evidently harmon- izes with the rule, and its application is therefore useless. It is certainly hard on the one hand that the use of a certain form of expression should fasten upon a party a liability where there are other ex- pressions which raise a doubt as to whether he intended that such should be the case ; but as was said by Bayley, J., in Barton v. Fitzgerald, 15 East, 546, " I admit that the words of a covenant may be restrained by other words in the deed, if we can see a clear intention to restrain them from the other parts of the deed. But it would be a veiy dangerous rule if it were to be ap- plied to every case where ingenuity can show that by giving the natural meaning to the words of the general covenant, other words in other parts of the deed might be rendered nugatory." This case of Barton v. Fitzgerald depended, as Sugden says of it, on very particular circumstances. In an assignment of a lease, reciting the lease to be for the term of ten years, there was a covenant that the vendor had done no act to incumber, excrpt an underlease, "and also " that the lease was subsisting, and not void or voidable, together with limited 484 1 Young v. Raincock, 7 C. B. 310. 290.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. heir, whose husband covenanted with the purchaser that notwith- standing any act or default of him, his wife, or Ann Hopley, the grantors were seised ; that notwithstanding any such act or de- fault, they, or one of them, had good right to convey ; that the covenantee should quietly enjoy without interruption from them or either of them, or any one claiming under Ann Hopley ; and that the grantors, and every one claiming under them or under Ann Hopley, should make further assurance upon reasonable re- quest. It turned out that the daughter was illegitimate, and the purchaser was evicted by the rightful heir. It was clear that the only covenant upon which the plaintiff could recover was that for quiet enjoyment, as the entry of the heir was not caused by any act or default of Ann Hopley. The defendant therefore contended, on the authority of Browning v. Wright and Nind v. Marshall, that the restrictive words must be drawn down from the first two covenants and embodied in the third, but the court ordered judg- ment to be entered for the plaintiff. 1 covenants for quiet enjoyment and for fur- ther assurance. It turned out, though there was no mention of it in the recital, that the lease was for ten years, if another should so long live, and upon the death of the cestui que vie the term expired, when the purchaser brought covenant. It was held by Lord Ellenborough, the other judges concurring, that the second cove- nant was general and unlimited, and could not be restrained by the limited ones. The opinions proceeded mainly on the recital, which was, that the premises were demised for a term of ten years, and that by assign- ment in the following year they had be- come vested in the then assignor for the remainder of the term. " Then when he covenants," said Le Blanc, J., " that the lease is valid in law for the premises there- by assigned, is not that a covenant that it is a lease valid for the whole term for which it is before expressed that it had to run ? " And Lord Ellenborough said, "If the rest of the covenants had imported a contrary intent to the general words then appear- ing to have been improvidently introduced into one part of a deed, the case would have admitted of a different consideration." In Coates v. Collins, L. R. 6 Q. B. 469, a tenant for three lives conveyed, with the ordinary covenants for title limited to his own acts, and the covenant that the lease was a good, valid, and subsisting lease in the law for the said three lives, and not forfeited, surrendered, or become void or voidable. One of the ccstuis que vie be- ing then dead, the assignee brought cove- nant, but the court held, though with much doubt and one judge dissenting, that the mention of the three lives was mere matter of description, and that the covenant only amounted to a covenant that the lease was still subsisting, and not that the three lives were still in ex- istence. 1 "It cannot be disputed," said Colt- man, J., who delivered the opinion of the court, "that the general introductory words of one of the usual covenants for title may be drawn down in this way and applied to others in which they are not to be found, where, from what is found in other parts of the deed, it appears that such must have been the intention of the parties." But he held that such was not the intention, and said, "The covenant, as it stands, without the restrictive words, is quite consistent with the covenant for further assurance, by which it is cove- nanted that Raincoek and wife, and every 485 § 290.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. So where, in the assignment of a lease from the plaintiff to the defendant, the latter covenanted that he would, so long as lie should be in possession of the rents and profits, pay to the original lessors the rent reserved, and perform the covenants con- tained in the lease from them to the plaintiff, and keep him harm- less and indemnified of and from the rents and covenants. 1 The breach assigned was that certain rents became due to the owners of the reversion, which the plaintiff was obliged to pay, and the jury having found that the defendant was not in possession of the rents and profits at that time, the latter contended that the cove- nant to indemnify was restricted to such time as he should be in possession. But the court held that the possibility of a resale must have entered into the minds of the parties. On such sale taking place, it was to be expected that covenants would be en- tered into by the purchaser to perform the covenants of the original lease, but the purchaser might make default in performing them, and it was therefore reasonable that the plaintiff should require from the defendant a covenant to indemnify him against any breach of those covenants. It was therefore held that the cove- nant to indemnify was not restricted, and judgment was entered for the plaintiff non obstante veredicto? other person claiming under them or either termined by the intention collected from of them, or under Ann Hopley, shall make the whole deed, and in those cases the further assurance on every reasonable re- covenants to which such words were not quest. But if the restrictive words which attached were held unrestricted, it is sought to introduce into the covenant 1 Crossfield v. Morrison, 7 C. B. 2S6. for quiet enjoyment are to be considered 2 And so by analogy in Reed v. Hatch, as introduced into it, and have the effect 55 N. H. 327, where in a deed for a mill contended for — that the entry by Peter property after the covenant of warranty Hopley, not being occasioned by any act were the words " provided said mill is or default of Mrs. Hopley, is not a breach kept for the manufacture of lumber, or as of the covenant for quiet enjoyment — long as it is kept for said use," it was this inconsistency will result from it, that held that the proviso applied to the grant, the covenant for quiet enjoyment will not not to the covenant only. In Belcher v. extend to protect the purchaser from adis- Sikes, 8 Barn. & Cress. 185, on the disso- turbance by Peter Hopley, but the cove- lution of a copartnership for supplying the nant for further assurance will entitle the navy with provisions, it was covenanted purchaser to a conveyance from Peter Hop- by one of the partners, that notwithstand- ley of his right to the estate, or, in case of ing any act done by him it should be refusal, entitle him to maintain an action lawful for the other partner to receive the against the present defendant for such money, debts, and premises thereby as- refusal." In Austin v. Ferguson, 25 U. signed, without any let, suit, interruption, Can. Q. B. 270, and Wallbridge v. Ever- or denial of the assignor, his executors or itt, 22 U. Can. C. P. 28, the effect of administrators, or any person claiming prior restrictive words was held to be de- under him or them, and it was held that 486 § 291.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. § 291. Second. But where the first covenant is general, a sub- sequent limited covenant will not restrain the generality of the preceding covenant, unless an express intention to do so appear, or unless the covenants be inconsistent. 1 In an early case, 2 on an assignment of a lease, the vendor cove- nanted that it was a valid lease, and should so endure during the remainder of the term, which was followed by limited covenants for quiet enjoyment and against incumbrances ; and it was held that the generality of the preceding covenant was not restrained by the latter. 3 So where, 4 on an assignment of certain shares in a patent for paper-making, there was a covenant of full power and authority to make the assignment, and that the covenantor had not done anything to forfeit any right or authority he ever had, etc., Lord Alvanley held that unless it irresistibly appeared that the parties could not intend to make a general covenant, the court ought not to indulge them in leaving out words which are ordi- narily introduced, and by which the real meaning of the parties might be plainly understood ; and as the words " notwithstanding any act done by him " were omitted from the first covenant, the omission of these words was of itself decisive, as the attention of a receipt of money by the executor of the assignor was a breach of the covenant, the words of limitation being inconsistent with the subsequent part of the covenant. 1 This proposition was approved in Peters v, Grubb, 21 Pa. 460 (see the case supra, p. 213), as also in Rowe v. Heath, 23 Tex. 619, and Morrison v. Morrison, 38 Io. 73. In Crum v. Loud, 23 Io. 220, the question arising under such covenants was left undecided. The student must not mistake the only printed opinion, which is the dissenting one, for the opinion of the court. 2 Gainsford v. Griffith, 1 Saund. 58. 3 Lord Eldon said of this case (in Browning v. Wright), that the assignor seemed to have said, "I not only cove- nant for the goodness of my title, but that you shall enjoy under that title, without any interruption from me." In the elab- orately reasoned case of Sumner v. Wil- liams, 8 Mass. 162, the members of the court differed as to the effect produced by the insertion of a limited covenant against incumbrances between preceding and sub- sequent unlimited covenants for seisin and of warranty, Parker, J., being of opin- ion that the limited covenant qualified the others, which might be considered " as limited and restrained in their operation by the whole context of the deed." There were special circumstances connected with these covenants, which might tend to lead to this conclusion. They weTe made by administrators, and although a majority of the court held them personally liable on their covenants, yet the circumstance of their acting en autre droit did certainly, as the learned judge remarked, aid the construction. It was, however, said by Sewall, J., that " covenants respecting the seisin, the power to convey, and the general title, made without restriction, may well consist with a restrictive cove- nant against incumbrances. And taken together, the several covenants recited stand unconnected in sense and expres- sion, and uncontrolled the one by the other. " 4 Hesse v. Stevenson, 3 Bos. & Pull. 565. 487 § 291.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. the purchaser was not called by any words to the intent of the vendor to confine his covenant to his own acts, 1 and it was well added, that the rule of construction in Browning v. Wright had never been carried to such a length as to decide that because some clauses are introduced into a deed which do not add to the security provided by the other clauses, the security so provided is to be restrained. 2 But in an early case in New York, the vendor covenanted that he was well seised of the premises, and had good right to convey them, to which was added a covenant of warranty " against all claims and demands whatever, except the lord of the soil" and it was held that these words expressly declared to the grantee that there was a lord of the soil, and it could not be supposed that the grantor could, in one line, covenant absolutely that he was seised, when he admitted, and it was so understood by both parties, that there was a lord of the soil, who, in the next covenant, was ex- cepted from its operation. The exception was, it was said, mani- festly intended to apply to both covenants. 3 So in a case in the 1 It should, however, be noticed of this case, that there are many reasons why the covenants in the assignment of such a pat- ent should be interpreted with the greatest strictness against the party making them. In England, it seems that general cove- nants for title are usually required in such assignments. 2 Davidson's Conv. (2d ed. ) 455. See supra, Ch. II. 2 In Atty.-Gen. v. Pumiort, 5 Paige, (X.Y. ) 620, there was a general warranty to the grantee and his heirs, " and if he or they shall be legally evicted, to pay the value of the premises with the improve- ments at the time of such eviction, with the legal and necessary charges of defend- ing the same, if by reason of any incum- brance of the. said party of the first part, his heirs or assigns." This deed was de- livered as a general warranty deed, the clause in italics being inserted in the hand- writing of the grantor, who was an attor- ney, at the end of the covenants, which were printed ; and it was urged that the grantor intended by this clause to restrain and qualify all his prior covenants for title (as was also the case in Crum v. Loud, 23 Io. 219), and therefore fraudulently de- livered the deed as containing a general 488 warranty. But Walworth, Ch., said, "I think it very evident from the whole trans- action that the written clause was inserted in the deed by him for a different and much more honest purpose. The printed blank used upon that occasion was from a form which I had myself prepared and had printed, to be used only in special cases. And the conceding clause, making the grantor liable in case of eviction for the full value of the premises, with the im- provements at the time of such eviction, without reference to the amount of the consideration expressed in the conveyance, was not usually inserted in full covenant warranty deeds. The defendant had a right to the written qualification of this extraordinary and unusual covenant to the case of an eviction, on account of an incumbrance created by himself. I am satisfied, therefore, that he inserted the written clause for this purpose only, and not to qualify or alter the legal effect of the other covenants in the conveyance." 3 Cole v. Hawes, 2 Johns. Cas. 203. It was so held in the recent case of Dunn v. Dunn, 3 Col. 510, where the words were "except as against the United States." In Phelps v. Decker, 10 Mass. 267 (cited § 291.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. Exchequer, 1 the first two covenants, viz. for good title and for right to convey, were unlimited ; the last two, for quiet enjoyment and against incumbrances, were limited to the acts of the covenantor, but the court held that it was the intention of the covenantors by the first two covenants to bind themselves that the vendees should have a good estate so far as rested in them, and therefore considered them as qualified by the subsequent covenants. But soon after, this case was overruled by one in the King's Bench, 2 where the vendor selling by virtue of a power covenanted that it was in full force and that he had good right to convey, which was followed by limited covenants against incumbrances, for quiet enjoyment, and for further assurance, and the court said that looking at all the cases cited for the defendants, there was one only 3 where a general covenant had been held to be qualified in the manner here contended for, unless there appeared something to connect it with a restrictive covenant, or unless there were words in the covenant itself amounting to a qualification ; and having considered that case again since the argument, the court could not feel itself bound by its authority, and therefore concluded that the covenant declared upon, being unqualified in itself and unconnected with any words in the qualified covenant, must in a court of law be considered as an absolute covenant for title. 4 supra, p. 68, n. 3, as to another point), was decided three years after Hesse v. Ste- after the description of the premises, it venson, though without referring to that was said," The above is warranted from all case, Tilghman, C. J., thus introduced the claims and demands whatsoever, as far as statement of the covenants contained in the Connecticut and Susquehanna Com- the deed : "I subscribe to the principle pany Purchase extends, and is regularly laid down by Lord Eldon in the case of made ; " then followed general covenants Browning v. Wright, cited on the part of for seisin, of right to convey, for quiet the defendant, that where it manifestly enjoyment, and of warranty. The defend- appears from a consideration of every part ant pleaded that all the estate of the of the deed that no more than a special Susquehanna Company came to and was warranty was intended, it shall be so con- vested in the plaintiff, which, on demurrer, strued, although the deed in one part con- was held bad, the court being clearly of tains words of covenant of more general the opinion that the general covenants import. To this rule I add the two fol- were not restrained by the alleged limita- lowing ones : that in construing a deed, tion as to the title of the Susquehanna no part shall be rejected unless it produces Company. contradiction or absurdity, and that in 1 Milner v. Horton, M'Clel. 647. doubtful cases a deed is to be construed in 2 Smith v. Compton, 3 Barn. & Ad. favor of the grantee. . . . [The remarks 189. which followed as to the covenants implied 3 Milner v. Horton, ubi supra. from the words "grant, bargain, and sell" 4 So in an early case in Pennsylvania, are no longer law (supra, p. 457).] I do Bender v. Fromberger, 4 Dall. 440, which not conceive it is possible for a man of 489 § 292.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. So in a case in Massachusetts, a vendor covenanted that he was lawfully seised in fee of the premises, and had good right to sell and convey them to the plaintiff, and that as to a certain portion thereof extending westward from a given boundary, the same was free of all incumbrances, and he would warrant and defend it against the lawful claims of all persons. 1 " It was contended by the defendant's counsel," said the court, " that the covenant of seisin was to be considered as limited in the same manner as the other covenants. If the parties had so intended, they would have so expressed their intention in the restricting clause. We cannot add to the language, unless it can be made clearly to appear that a word was omitted by mere mistake. Nothing of this kind ap- pears in any part of the deed, but quite to the contrary ; for if the intention of the parties was to limit all the covenants alike, it would undoubtedly have been so expressed. There was a good reason, probably, why a distinction was made between the cove- nant of seisin and the other covenant, for if the plaintiff should have been evicted by a paramount title, it would have been a breach of the covenant of warranty and against incumbrances, a paramount title being an incumbrance. But such a title does not affect the covenant of seisin. 2 Most decidedly, therefore, the construction of the deed contended for by defendant's counsel on this point cannot be maintained." 3 § 292. Third. As on the one hand a subsequent limited cove- nant does not restrain a preceding general covenant, so on the common sense to declare that he engages In short, the insertion of the clause of that he had a perfect estate in fee simple, special warranty is generally the act of and had a good right to convey such per- scriveners ; but I presume that no scrive- fect estate, without intending to warrant ner could be so stupid as to insert a cove- to a greater extent than against himself nant that ' the grantor was seised of an and his heirs. These are no technical ex- indefeasible estate in fee,' unless he had pressions, but such as every able man un- been told by the parties that a general derstands, which is not the case with a warranty was intended. I am therefore of special warranty. To a common man it is opinion that the special warranty in this not very intelligible that there should ever deed has not the effect of controlling the be occasion to warrant and defend against precedent general covenant." himself and all persons claiming under x Cornell v. Jackson, 3 Cush. (Mass.) him, for it is very natural to suppose that 506. when a man has used words sufficient to 2 Referring to the peculiar view taken convey his estate to a third person, he has of this covenant in some of the New Eug- necessarily done enough to bar himself land States, supra, § 42 et seq. and all persons claiming under him, with- 3 See also Rigby v. Great West. Rail, out calling in the aid of a special warranty. Co., 4 Exch. 220. 490 § 293.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. other hand a preceding general covenant will not enlarge a sub- sequent limited covenant. In an early case, 1 one seised of an estate under grant from the Crown in conveying it to a purchaser recited the letters patent and the conveyances from thence down to himself, and covenanted that he was seised in fee, that he had good power to convey, and that there was no reversion in the crown notwithstanding any act done by him. The court below held that these last words restrained the generality of the first two covenants ; but this was reversed on writ of error, 2 and it was held that the restrictive words did not extend to the preceding covenants. " And the only ground on which I supposed the court to have proceeded," said Lord Eldon, in speaking of the case in Browning v. Wright, " is this, that they considered it to have been the intention of the parties that the vendor should enter into an absolute covenant for his seisin in fee in all cases but one, namely, that he should not be liable on the objection of a reversion existing in the Crown, 3 unless that reversion appeared to have been vested in the Crown by his own acts." § 293. Fourth. Where the covenants are of divers natures, and concern different things, restrictive words added to one shall not control the generality of others, though they all relate to the same land. Thus in Crayford v. Crayford, 4 where a vendor covenanted that he was seised in fee, notwithstanding any act done by him or his ancestors, that there was no reversion in the crown, that the estate was of a certain annual value, and that the plaintiff should enjoy the same discharged from all incumbrances made by him or his ancestors, it was held that " the covenant for value was an absolute and distinct covenant, and had no dependence upon the first part of the covenant ; " and in a subsequent similar case the construction was the same. 5 1 Trenchard v. Hoskins, Winch, 91; W. Jones, 403. In Rich v. Rich, Cro. Eliz. s. c. Litt. 62, 65, 203. 43, Lord Rich covenanted that certain 2 See 1 Sid. 328, and 1 Saund. 60. lands conveyed to Lady Rich, the plaintiff, 3 " In grants of land by the Crown," for her jointure, were of the yearly value says Sugden, " it is usual to reserve a re- of £1,000, and should so continue not- version, which the grantee cannot bar." withstanding any act done or to be done 2 Sugd. on Vend. (10th ed.) 535. by him ; "and the action was brought for 4 Cro. Car. 106. that the lands were not of the yearly value 5 Hughes v. Bennet, Cro. Car. 495; s. c. of £1,000, but it was adjudged against the 491 § 295.] IMPLIED COVENANTS FOE TITLE, [CHAP. XII. § 294. The comparative absence of American authority upon this subject which must have been observed, is owing not only to the fact that the niceties of English conveyancing have been but little adopted in this country, but, as has been seen, in many of our States some or all of the covenants for title are implied by statute from the use of the words of grant, and all the covenants, when thus implied, have generally been cast in the same mould, so that there is no distinction between them as to one being more general or more limited than another. § 295. Covenants for title may also obviously be limited and restrained by any express agreement contained in the deed. In an old case, where the covenants were general, the defendant pleaded that it was further agreed in the same indenture that all the covenants therein should not extend further than to acts done by the vendor and his heirs, and although the agreement was " a remote one in the end of the deed and far distant from the other covenants," it was nevertheless held to qualify them. 1 So where the deed contained a general covenant of warranty, and there was a contemporaneous sealed agreement that if the land should be recovered by any one claiming the same within three years thereafter the purchaser was to recover back the amount he had paid the vendor, the court held that the bond was merely a limi- tation of the amount of damages to be recovered by the vendee in case of eviction within the three years, 2 and that after the expiration of that time the general warranty was in force for the full amount which might be recoverable at law. 3 So, of course, certain defects of title or incumbrances may be excepted from the operation of the covenants, or some of them, 4 plaintiff ; for the words ' notwithstanding should be no claim upon the warrantor for any act ' extend as well to the time of the more than the purchase money without in- covenant made as to the time future, and terest, whereas the general warranty would though they were not then of that value, hold him liable for the purchase money and the covenant was not broken, except some interest." act done by him was the cause of it." The 3 Black v. Barton, 13 Tex. 82. Obvi- distinction between these cases is sum- ously, however, whatever might be the ciently obvious. So also, in the some- effect of such an instrument as between what recent case of Kean v. Strong, 9 Irish the parties, it would not affect a pur- L. 74, a covenant for renewal was held to chaser of the land without notice. Su- be distinct from and unqualified by the pra, §§ 88, 223. covenant for quiet enjoyment. 4 Supra, § 88 ; Gale v. Edwards, 52 1 Brown v. Brown, 1 Lev. 57 ; s. c. 1 Me. 363 ; Estabrook v. Smith, 6 Gray, Keli. 234. (Mass.) 578. Neither, conversely, can a 2 That is to say, " in that event there limited covenant of warranty be enlarged 492 § 290.] AND HOW LIMITED OR QUALIFIED. [CIIAP. XII. as has been already shown, but such exception must appear on the face of the deed and cannot at the trial be made out by parol. 1 § 29G. But while this is so, the familiar principles which govern courts of equity in the reformation of instruments on the ground of fraud and mistake apply of course to the covenants for title. Thus in the early case of Coldcot v. Hill, 2 the plaintiff, having purchased church lands in fee under the title of Cromwell, sold them to the defendant's testator with general covenants for the title, but upon the Restoration the estate was avoided, and the defendant, in an action on the covenants, recovered back his purchase money, upon which the vendor filed a bill to enjoin the collection of the judgment, " which did suggest a surprise upon the plaintiff in getting him into that covenant, and that it was declared by Dr. Coldcot, when he sealed, and the defendant's testator, that it was intended Dr. Coldcot should not undertake any further than against himself ; " which appearing upon proof of this, 3 the purchaser was decreed to enter satisfaction on the judgment and pay costs. 4 A few years after, 5 a bill was filed to enjoin a judgment ob- tained upon a general covenant that the grantor had lawful power to convey, " which being contrary to the true intent and meaning of the said parties, and it appearing so in the conveyance where the rest of the covenants are restrained to the acts done by the to a general covenant by parol evidence, acknowledge satisfaction on the judgment Buckner v. Street, 5 McCr. (C. C. U. S. ) and pay costs." The report in Freeman 59 says, " The court, upon consideration that 1 Supra, § 88 ; Raymond v. Raymond, the covenant for enjoyment was intended 10 Cush. (Mass.) 134. only against acts done by the plaintiff or 2 1 Cas. in Ch. 15 ; s. c. Freem. 173; his trustees, and that the agreement to and see this case infra, Ch. XV. that effect was fully proved, declared the 8 " Upon the hearing, it was proved plaintiff ought to be relieved against the that the matter of the covenant upon covenants inserted in the deed, and the which the judgment was had against the judgment obtained thereon ; and did there- plaintiff was controverted in the paper fore decree the defendants to acknowledge draft and put out by the plaintiffs coun- satisfaction on the said judgment, and to sel, and in again by the defendant's coun- release all errors, and that no more actions sel, with the alteration only that whereas should be brought on the said covenant, the covenant was that the plaintiff was and for that end awarded an injunction lawfully seised, etc., the plaintiff's counsel against the defendants." put out (lawfully), which signified nothing; 4 The report also says that a like case for to covenant one is seised is intended to this, between Farrar and Farrer, was lawfully. But some proof being that it heard and decreed after the same manner was declared upon sealing that the plain- about six months before, tiff should undertake for his own act only, 6 Fielder v. Studley, Rep. temp. Finch, it was decreed that the defendant should 90. 493 § 297.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. plaintiff and all claiming under him, and that the covenants ought to be so restrained, especially since the purchaser knew the plaintiff's title, and that he sold him only such estate as he had in the premises, 1 . . . the court decreed that the general words in this covenant ought not to oblige the plaintiff, being contra- dicted by all the subsequent covenants, and the plaintiff selling only such an estate which he had," and the defendant was there- fore enjoined from proceeding upon his judgment. 2 And the same doctrine is fully recognized and applied on this side of the Atlantic. 3 § 297. Nothing is better settled as a general rule in the con- struction of deeds, than that in case of discrepancy in the descrip- tion between the distances and the boundaries the former are controlled by the latter, on the ground that the lesser must yield to the greater certainty. 4 And where land is conveyed by a par- ticular description and with an enumeration of the quantity of acres, the latter is held to be matter of description merely, and cannot be deemed an implied covenant for quantity. 5 As therefore the descriptive boundaries control the quantity, it 1 "And never took any advantage or questioned the plaintiff in any of the cov- enants in the deed, but continued in the possession, and received the profits there- of for ten years and upwards, and after the Restoration he or his son took a new lease of the Dean and Chapter of Sarum for three lives, and had a considerable abatement of the fine, in respect of the purchase made by the plaintiff." 2 " This last case," says Sugden, "was quoted in a case in the Common Pleas, before Lord Eldon (Browning v. Wright, supra, § 289), who thought the decision must have been made on the ground of the intent of the parties appearing on the in- strument, since that intent and the conse- quent legal effect of the instrument could only be collected from the instrument itself, and not from anything dehors. In a still later case in the same court, Hesse v. Stevenson, supra, p. 487, n. 4, Lord Alvanley thought, under the circum- stances of the case, that the application was made to the Court of Chancery to cor- rect the mistake in the same manner as applications are made to that court to cor- rect marriage articles, where clauses are 494 inserted contrary to the intent of the par- ties. It seems clear, however, that the relief in this case was founded on parol evidence that the vendor sold only such estate as he had, corroborated as it was by the form of the deed and the subject of the contract. Such evidence was received in the prior case of Coldcot and Hill and is still clearly admissible." 1 Sugd. on Vend. (10th ed.) 262. 8 As, for example, in Rufnerv. M'Con- nel, 14 111. 168 ; Cram v. Loud, 23 Io. 219 ; Metcalf v. Putnam, 9 Allen, (Mass.) 99 ; Stanley v. Goodrich, 18 Wis. 505. 4 3 Washburn on Real Prop. 631 ; Kruse v. Scripps, 11 111. 103 ; Powell v. Clark, 5 Mass. 355 ; Jackson v. Defen- dorf, 1 Caines, (N. Y.) 493; Jackson v. Barringer, 15 Johns. (N. Y.) 471 ; Jack- son v. M'Connell, 19 Wend. (N. Y.) 175 ; Smith v. Evans, 6 Binn. (Pa.) 107 ; Petts v. Gaw, 15 Pa. 222. 5 Perkins v. Webster, 2 N. H. 287 ; Large v. Venn, 6 Serg. & Rawle, (Pa.) 488 ; Whitehill v. Gotwalt, 3 Pa. (old Pa., not Pa. St.) 327, overruling Chris- tine v. Whitehill, 16 Serg. & Rawle, (Pa.) 112. § 298.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. has been repeatedly held that the covenants for title apply to the premises contained within those boundaries, and not to any enu- meration of acres. Thus in an early case in Connecticut, 1 where the defendant was sued on a covenant for seisin contained in a conveyance of one hundred and ten acres of land with certain boundaries, it appeared that the title was good to all the land within the boundaries, but that there were only ninety acres, and the court held that the deed granted nothing but the lands lying within the bounds described and gave judgment for the defend- ant; and in a numerous class of cases the same principle has been recognized. 2 Of course, however, this rule will not apply where on the face of the instrument it appears that the covenants were directly intended to assure a particular quantity to the pur- chaser. 3 § 298. This class of cases obviously proceeds upon the ground that the covenants for title apply to what is conceived to be the subject matter of the conveyance according to the intention of the parties, 4 and it has been carried so far as to have been held in many cases that where the conveyance is of a limited estate or interest, general covenants for title will be restrained by the extent of that interest. 5 Thus in an old case, 6 where the deed conveyed the third part of certain premises for the life of the grantor, with covenants for perfecting the conveyance by further assurance and for well enjoying that which was conveyed, it was held that the covenants could not be taken to assure a greater estate than the third part thus conveyed, during the life of the 1 Snow v. Chapman, 1 Boot, 528. Morris v. Owens, 3 Strobh. (S. C. ) 199 ; 2 Belden v. Seymour, 8 Conn. 19 (Bis- Steiner v. Baughman, 12 Pa. 106. sell, J., dissenting) ; Elliott v. Weed, 44 4 Long Island R. R. v. Conklin, 32 id. 19 ; Davis v. Atkins, 9 Cush. (Mass.) Barb. (N. Y.) 388 ; Kilmer v. Wilson, 49 13 ; Ferguson v. Dent, 8 Mo. 667 ; Smith id. 88. v. Negbauer, 13 Vroom, (N.J.) 305; 5 One instance in which general cove- Mann v. Pearson, 2 Johns. (N. Y.) 41 ; nants for title are limited by the estate Whallon v. Kauffman, 19 id. 101; Roat conveyed has already been noticed {supra, v. Puff, 3 Barb. S. C. (N. Y. ) 353 (where § 250), viz. that in case of a reconvey- most of the cases are collected) ; Rickets ance to the vendor the purchaser's gen- v. Dickens, 1 Murph. (N. C.) 343; Huntly eral covenants are nevertheless limited to v. Waddell, 12 Ired. (N. C.) 33 ; Baus- defects or incumbrances erected by him- kett v. Jones, 2 Spears, (S. C.) 68 ; Lo- self, and not to those of the vendor or any rick v. Hawkins, 1 Rich. (S. C.) 417 ; one prior to him in the chain of title. Tucker v. Cocke, 2 Rand. (Va.) 51 (over- Kellogg v. Wood, 4 Paige, (N. Y.) 614 ; ruling Quesnell v. Woodlief, 2 Hen. & Cole v. Lee, 30 Me. 392. Munf. 173). 6 Clanrickard v. Sidney, Hob. 273 ; 8 Pecare v. Chouteau, 13 Mo. 527 ; supra, p. 475, n. 3. 495 § 293.] IMPLIED COVENANTS FOR TITLE, [chap. XII. grantor. 1 So in Ireland, where the defendant purported to con- vey all the estate and interest which he had under a certain deed, it was held that his covenant that he had good right to make conveyance under that deed was not an absolute covenant that he had a freehold estate, but only that he had power to convey such an estate as he took under the deed. 2 So in an early case in New York, 3 where a lessee assigned the lease " in as ample a manner to all intents and purposes as I might or could hold or enjoy the same, and I covenant that I have good and lawful right to bar- gain and transfer the said premises, as is above written, and that the same are clear of all arrearages of rent and other incum- brances," it was held that the words "as is above written " quali- fied the covenants, and that it could not be supposed that the assignor meant to warrant his landlord's title. 4 So in a case in Massachusetts, where the conveyance was of all the grantor's " right, title, and interest in and to the undivided estate devised," it was held that a general warranty which the deed contained was limited to be an assurance of that particular estate only, and therefore could not be held to operate by way of estoppel in pass- ing an after-acquired estate. 5 So in a subsequent case in the 1 " Now who sees not," said Lord Ho- bart, " that the office of these covenants, when they follow in express grant, is not to give anything, but to assist, further, and support, being as a wall or monument about it, and therefore, cannot be under- stood to exceed that whereunto they are said to be but handmaids, according to the rule of the Great Master : the servant cannot be above the master. And because it may appear how absurd it will be to take these covenants as if they stood alone in that respect to the whole content and intent of the deed." See also supra, §250. 2 Delmer v. M'Cabe, 14 Irish L. (N. s.) 377. 3 Knickerbacker v. Killmore, 9 Johns. 106. 4 There may, however, be reasons why, in the assignment of a lease, the covenants should be construed differently from those in the conveyance of a freehold. See su- vra, § 26, also p. 477 ; infra, p. 500. 5 Blanchardfl. Brooks, 12 Pick. (Mass.) 67. See the language of the court, cited 496 supra, p. 371, n. 1. So in Grimes v. Red- mon, 14 B. Mon. (Ky.) 236, where there was an exchange of land, the court said, "Although it is true that the deed of Bates contains a warranty purporting to bind his heirs, and which, to the extent of the value of any heritage descended from him to them, would bar them from recovering merely on the ground that a better title than that which passed by his deed had descended to them from another ancestor, yet as this deed shows explicitly that it is made in consequence and in consideration of an exchange of lands, of which it is a part, and in fact the consummation, as it is not only the implied law of such a transaction, but upon comparison of the reciprocal deeds by which it was consum- mated, and which must be taken together as one transaction, it is found to be the ex- press law of this particular transaction that if either party shall lose by a better claim the land which he has received in exchange, he becomes thereby immediately entitled to the land which he has given in exchange ; and as by the implied law of § 298.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. same State, the conveyance was of " all my right, title, and inter- est in and to Tiffany's Ferry, and the boat which T built the last season, and now use in carrying on the ferry, and all the estate, land, and buildings standing thereon, situate and being in North- field, as the same is now occupied and improved by me, and I do covenant that I am the lawful owner and possessor of the before- granted premises, and have in me good right, etc. to give, grant, and confirm the same," followed by a general warranty of " the before-granted premises," the grantor in this conveyance, being offered as a witness in support of the title in favor of an alienee, was objected to on the ground of his liability on these covenants, but the court held that the covenant was restrained by the pre- vious context of the deed, and consequently that the witness was competent. 1 So in a more recent case, where the grant was of an exchange the party thus losing may immediately enter upon the land given in exchange for it, while by the express stip- ulations of these parties he who has not lost is bound to restore and reconvey the land which he has received to the party who has lost, quantity for quantity, we perceive at once that the general warranty contained in each deed is qualified and restricted, both by the nature of the trans- action as an exchange and by the express stipulation of the other deed, so as to make the lawful eviction of either party from the land received by him an excep- tion to the general terms of the warranty, and thus to free him in such case from the estoppel which might otherwise prevent him from reclaiming the land which he had conveyed with warranty." In Hurd v. dishing, 7 Pick. (Mass.) 169, where a tenant for life conveyed " all his right, title, and interest" in the land with a covenant that he was seised in fee, it was held that only the life estate passed, for the covenant could not enlarge the estate. (Seymor's case, 10 Rep. 97, and see su- pra, p. 391.) So where, in Corbin v. Healy, 20 Pick. (Mass.) 514, one granted land to his daughter "and the heirs of her body, to have and hold the same to her and her heirs forever," and covenanted to warrant and defend the same to her and her heirs, it was held that neither the ha- bendum nor the warranty could make the estate other than an estate tail. 1 Allen v. Holton, 20 Pick. (Mass.) 463. " The objection would be well main- tained," said Wilde, J., who delivered the opinion, " if a literal construction of the covenant of warranty could be allowed without reference to the other parts of the deed. But every deed is to be construed according to the intention of the parties, as manifested by the entire instrument, although it may not comport with the lan- guage of a particular part of it. Thus a recital or a preamble in a deed may qualify the generality of the words of a covenant or other parts of a deed. 4 Cruise's Dig. tit. 32, Deed, c. 23, § 8. The case of Moore v. Magrath, Cowp. 9, is a strong case to show to what extent a court may go in qualifying and even in rejecting a particular clause in a deed, in order to etl'ectuate the intention of the parties. In that case, the lands intended to be granted by a deed of settlement were particularly named in the preamble, and were after- wards minutely described in the premises, and then followed a sweeping clause pur- porting to convey ' all other the donor's land, tenements, and hereditaments in Ireland.' And the court held that nothing passed by this sweeping clause ; the court heiug of opinion, from the words of the preamble, that the donor did not intend to include his paternal estate (which was sit- uate in a different county from those in which the lands intended to be conveyed were situate), and that it was more than 32 497 § 299.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. " all my right, title, and interest in and to that parcel of real estate situate in Green Street, and is bounded," etc., followed by unlimited covenants for seisin, good right to convey, against incumbrances, and of warranty, it was held that these covenants were limited merely to the right and title of the grantor, what- ever that might be ; * and the law has been so held in many similar cases. 2 § 299. It may however be observed of these cases, that inas- much as all conveyances taking effect under the statute of Uses probable that the drawer by mistake omit- ted some words in the sweeping clause. "Whatever may be thought of the intention of the parties in that case, we think the intention as to the extent of the grant in the present case is sufficiently plain. The grantor conveys his own title only, and all the subsequent covenants have refer- ence to the grant, and are qualified and limited by it. That this was the inten- tiou of the parties cannot, we think, be reasonably doubted, and the words of the covenants are to be so construed as to effectuate that intention." So where the obvious meaning of the covenants renders it necessary, courts will construe one word to mean another, as is constantly done in wills, as where, in Sanders v. Betts, 7 Wend. (N. Y.) 287, the party of the first part in a deed cove- nanted to warrant and defend the premises from all persons claiming "by, from, or under him, the said party of the second part," the plaintiff urged that all these words must be rejected as being repug- nant to the preceding matter. But the court held that second had been inadver- tently used instead of first, and construed the covenant as being a limited one only. 1 Sweet v. Brown, 12 Met. (Mass.) 175. 2 Ballard v. Child, 46 Me. 153 ; Bates r. Foster, 59 id. 158 ; Stockwell v. Couil- lard, 129 Mass. 231 ; Young v. Clip- pinger, 14 Kans. 148 ; McNear v. Mc- Comber, 18 Io. 14. In the last case, some of the covenants were written and some in printed form, and it held that the former controlled the latter, the Code in Iowa providing that " when an instrument con- sists partly of written and partly of printed form, the former controls the lat- ter when the two are inconsistent." Rev. 498 Code of 1860, c. 159, § 3993 ; Code of 1873 (ed. of 1880), § 3651. In Sweet v. Brown, the court said: "The warranty is of the premises which were granted and conveyed by the deed. But that was ' all my right, title , and interest in and to that parcel of real estate situate,' etc. It was not a grant of certain land, in genera] terms, but of his title and interest in such land, and this particularly and fully expressed. The warranty must be taken in a limited sense. It must be restricted to his title and interest. . . . Such con- struction will reconcile all parts of the deed and give effect to each." And the cases of Blanchard v. Brooks, 12 Pick. (Mass.) 67, and Allen v. Holton, 20 id. 463, supra, were then cited and approved. In Lull v. Stone, 37 111. 228, however, the correct- ness of these cases was doubted, though the decision itself was based upon another ground. Wynn v. Harman, 5 Grat. (Va.) 157, was a very clear case. The conveyance was of " all claims in and to the Curran place, which was conveyed to Curran by Daniel Harman, senior," and the cove- nant was that " the said Harman and wife, for themselves and their heirs, the said right as it was invested in Daniel Har- man, to the said John and his heirs, against themselves and their heirs, will warrant and defend ; it is fully understood, if said title should prove insufficient in law or equity, the said "Wyman and heirs is to have no recourse, he knowing the whole circumstance." The difference in an executory contract between an agreement to convey a good title, and such a title as the party has, is well shown by Strong, J., in Herrod v. Blackburn, 56 Pa. 105. § 299.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. transfer no more than the estate of the party, such a course of decision, if too strictly carried out, would in such conveyances restrain all general covenants for title to the acts of the A^endor, and thus of course utterly change the nature of such covenants. It is conceived therefore that this class of cases should be limited in their application to those where the intention to convey and receive but a limited estate plainly appears on the face of the deed. 1 And in a case in Massachusetts, where the conveyance was of " the following described water lots," and, appended to the description by metes and bounds, the words " meaning and in- tending by this deed to convey all my right, title, and interest in and to lots numbered three and six, and my undivided portion of the aforementioned flats," it was held that the general covenants for title which the deed contained were not restricted merely to the interest of the grantor. 2 So in a late case in Vermont, where the grant was of " the following described land in Colchester, all the land which I own by virtue of a deed, being all my right and title to the land comprising fifty acres off of the east of lot No. 75 in said town," it was held that the covenants were not qualified by the grantor's interest. 3 So in a case in Eng- 1 See Jackson v. Hoffman, 9 Cow. (N. Y.) 271. That case decided that where a deed contained a recital of the premises being incumbered by a mort- gage, followed by unlimited covenants, the mortgage was excepted from their opera- tion. It was followed in Bricker v. Brieker, siqira, p. 482, n. 3. It must not be forgotten, however, that it is always in the power of the vendor to except the mort- gage from the operation of the covenants, as in Potter v. Taylor, 6 Verm. 676, where, after a covenant against incumbrances, were inserted the words, " except the amount of a mortgage held by B. K., on which is due about eighteen tons of hay," and it was held that the covenant was broken only as to any excess there might be due over the eighteen tons. 2 Hubbard v. Apthorp, 3 Cush. (Mass.) 419, where Blanchardi;. Brooks, and Allen v. Holton, supra, were commented upon. (The decision was quoted at some length in the fourth edition of this treatise, p. 528 et scq.) In Whiting v. Dewey, 15 Pick. (Mass. ) 434, it seems to have been thought that if the words "being all the same lands which the said Benedict Dewey, deceased, lately owned," had been the only words of description used, they would have lim- ited the general covenants which followed ; but as the premises were in the grant par- ticularly described by metes and bounds, the description was held not to limit the covenants. 3 Mills v. Catlin, 22 Venn. 98. " Upon the principle that the construction is to be upon the entire deed, and that one part is to help expound another, and that every word if possible is to have effect and none be rejected, and all the parts thereof agree and stand together, we think it must be held to have been the intention of the parties to grant the land, and that the habendum in the deed is to hold the land, and the covenants are, as they import to be, unlimited, and relate to the land and insure title to it. But if, after all, we consider the intention of the parties am- biguous, the rule would be interposed that the construction in such case is to be most strongly against the grantor and in favor 499 § 299.] IMPLIED COVENANTS FOR TITLE, [CHAP. XII. land, 1 a testator having a power to lease for three lives demised " as far as in his power lay or he lawfully might or could " part of the premises, covenanting for quiet enjoyment during the same with- out interruption by himself or his heirs or any one claiming under him. There had, however, been a prior appointment by himself and his father, and after the testator's death the lessee was evicted by the eldest son of the latter, and the master to whom it was referred to determine the liability of his estate under the covenant reported that it was not liable ; but this was set aside by the Master of the Rolls who said, " It is urged that the lessee is not entitled to any compensation for her eviction, and that for two reasons : first, because it is clear on the face of the deed itself that the testator did not mean to assert that he was entitled to grant such an interest as he purported to give. This made me inquire whether there was any evidence of the lessee's having notice that the lessor had no title to grant this lease. If she had, a different consideration would arise ; 2 and it might then be properly said that she could only take such title as she knew could be granted to her. On the one hand, we know that in prac- tice a lessee is never allowed to look into the lessor's title ; and on the other hand, a person granting a term must be taken to of the grantee, and this to prevent an eva- or recital is not that the party is seised sion by the grantor by his use of obscure in fee, but that he is seised and possessed ; and equivocal words." Steiner v. Baugh- where the contract is not for the purchase man, 12 Pa. 106, and Peck v. Hensley, 20 of an estate in fee or freehold, but of the Tex. 677, are to the same effect. In estate and interest of the defendant under Cooke v. Fownds, 1 Lev. 40, s. c. 1 Keb. the deed of 1841, and where the covenant 95, the vendor covenanted that he was is not that he has power to convey a fee, seised of a good estate in fee, according to but to make this conveyance of his estate the indenture made to him by W., of and interest under the deed of 1841, fol- whom he had purchased, and pleaded, in lowed by a covenant for quiet enjoyment an action in which it was assigned for against acts by the defendant himself." breach that he was not seised of a good But this distinction is rather finely drawn, estate in fee, that he was seised of as good * Calvert v. Sebright, 15 Beav. 156, an estate as W. conveyed to him, this was and see this case cited as to another point, held bad on demurrer, " for the covenant supra, p. 121. is absolute, and reference to the convey- 2 It is, however, well settled that mere ance by W. serves only to denote the notice of an incumbrance will not except limitation and quality of the estate, and it from the effect of the covenants for not the defeasibleness or indefeasibleness title so as to constitute a defence, for if of the title." This case was sought to be the parties mean so to except it, the in- distinguished in Delmer v. McCabe, 14 tention should be expressed by apt words Irish L. (n. s.) 377, supra, p. 496, where in the deed. See supra, § 88. But to this the court said : "It does not occur to rule, which is universal as to purchases, us that this case has any application to there may be exceptions arising in cases the case before us, in which the statement of leases. See supra, p. 94 et seq. 500 § 299.] AND HOW LIMITED OR QUALIFIED. [CHAP. XII. know his own title, and to assert that he has power to grant that which he purports to grant. The words ' as far as he lawfully can ' are implied without their being used. A man can only be taken to grant that which he lawfully can ; and by such words as these he cannot mean to assert that he is not entitled lawfully to grant such a lease. To induce me to construe these words to be an intimation to the lessee that the lessor is not entitled to do what he professes to do, I should require either some express authority, or some expression of doubt upon the face of the lease that there was a defect as to the title. In the absence of any such authority or expression, I am of opinion that the defect was not disclosed by these words." 501 § 301.] PARTIES BOUND AND BENEFITED [CHAP. XIII. CHAPTER XIII. THE PARTIES BOUND AND BENEFITED BY COVENANTS FOR TITLE. § 300. It is proposed here to consider, first, who are bound by covenants for title ; that is to say, the liabilities of the covenantor, the heir, the devisee, and the executor or administrator; and secondly, who may take advantage of them, or the rights of the covenantee, the heir, the devisee, the executor or administrator, and the assignee. § 301. 1. Of the Covenantor. — The liability of a covenantor obviously depends so much on the nature of the covenant, and the circumstance of its breach, that the subject has to a great extent received consideration in preceding chapters. 1 1 The liability created by covenants for title is often a material circumstance in determining the rights of parties in the marshalling of assets. It is a general and familiar principle of equity that where a creditor has a right to elect between two funds, out of either of which he can satisfy his claim, he shall not be permitted so to exercise that right as to disappoint another creditor who has recourse to but one of them. In England, this principle, was formerly perhaps most frequently called into operation as between creditors of the real and personal estate of a decedent. But as on this side of the Atlantic lands are, in most of the States as they are now in England, made assets for the payment of all debts whether due by specialty or simple contract, this class of cases is comparatively a small one, and the doctrine is applied in favor of sureties, purchasers, devisees and legatees, etc. It is only as respects purchasers that the sub- ject needs consideration here. "Where a vendor sells land which is covered by an incumbrance for whose pay- ment he is personally liable, and the con- tract between himself and the purchaser has been that the latter is not to take the 502 land cum onere, it is sufficiently obvious that the purchaser is not only entitled to an indemnity upon payment of the in- cumbrance by him, but also to a substitu- tion to all the rights of the holder of the incumbrance ; and if the incumbrance bind other land of the vendor, the purchaser should, of course, not only be subrogated to such rights as are personal to the ven- dor, but also to that of subjecting that land to payment of the incumbrance. Thus in Eddy v. Traver, 6 Paige, (N. Y.) 521, where one of four heirs sold to the com- plainant his undivided fourth part of his ancestor's estate with a covenant of war- ranty, which part was afterwards sold by the surrogate for payment of the debts of the decedent, it was held that the com- plainant had an equitable lien upon the unsold portion of the estate, and had a right to come in upon the fund raised by the sale of that portion under proceedings in partition. As this right on the part of the purchaser depends, however, wholly on the nature of the contract between his vendor and himself, the presence of cove- nants for title in the conveyance to him is deemed a material circumstance as evi- dence of this. Thus in Averall v. Wade, 302.] BY COVENANTS FOR TITLE. [CHAP. XIII. § 302. Whenever the action of covenant is founded on privity of contract, it is of course transitory, and the covenantor is liable to suit wherever process may be served upon him. But whenever founded on privity of estate, as for example where the plaintiff, as assignee of the land, sues upon a covenant which runs with it, the action is of course local, and cannot be sustained unless the land be within the jurisdiction of the court in which the action is brought. This has Ion": been settled, 1 and in a rather late case Lloyd & Goold (temp. Sugd.), 259, Sug- den said : " A man seised of estates A and B, both subject to a judgment debt, set- tles A for valuable consideration without noticing the judgment, the judgment cred- itor would be compelled to go against es- tate B, and the persons claiming under the settlement would be entitled to have the settled estate exonerated, at the ex- pense of the unsettled estate ; the judg- ment binds both, and where there is a settlement of part of an estate as if free from incumbrance, equity will throw the whole on the unsettled part which still be- longs to the original owner. Here there is a covenant that the estate is free from incumbrances ; assuming that there was no such covenant, but a mere declaration that the estate was free from incumbrances, there can be no doubt that that declara- tion would throw the incumbrance on the unsettled estates." In this case it will be observed that the conveyance was for a valuable consideration and contained a covenant against incumbrances ; where, however, the conveyance is voluntary and contains no other covenant than that for further assurance, the grantee will not be exonerated from the payment of a para- mount charge. Ker v. Ker, Irish R. 4 Eq. 14 ; and see infra, Ch. XV. In Guion v. Knapp, 6 Paige, (N. Y. ) 35, it was said : " If a mortgage is a lien upon two hundred acres of land, and the mortgagor conveys one hundred acres thereof to A., the one hundred acres which remains in the hands of the mortgagor is to be first charged with the payment of the debt, and, if that is not sufficient, the other one hundred acres is next to be resorted to. But if A. has subsequently conveyed one half of his one hundred acres to B. with warranty, the fifty acres remaining in the hands of A. is in equity first chargeable with the pay- ment of the balance of the debt, which can- not be raised by a sale of the one hundred acres that still belong to the mortgagor or his subsequent grantee, before resort can be had to the fifty acres which A. has conveyed with warranty. And if A. con- veys his remaining fifty acres to C, either with or without warranty, that portion of the premises is still liable for the balance of the mortgage debt, and must first be sold before a resort can be had to the fifty acres previously conveyed with warranty to B." And this was approved in Cumming v. Cumming, 3 Kelly, (Ga.) 460 ; Haskell v. The State, 31 Ark. 91. But the presence of the covenant is, as has been before said, and as appears from the case of Averall v. Wade, material only by way of evidence of the original contract. Cooper v. Bigly, 13 Mich. 475 ; McClaskey v. O'Brien, 16 W. Va. 791-839 ; Miller v. Winchell, 70 N. Y. 437. And the doctrine is equally susceptible of application in any case where, from other evidence than that af- forded by the covenants, it can be seen that the purchaser was to take the land free from the particular incumbrance. Cowden's Estate, 1 Pa. 266 ; notes to Al- drich v. Cooper, 2 Lead. Cases in Equity, where the doctrine of marshalling assets is carefully considered. In Massachusetts, however, it would seem to be considered that the doctrine depends upon the pres- ence of covenants of warranty. Chase v. Woodbury, 6 Cush. 148; Bradley v. George, 2 Allen, 392 ; George v. Wood, 11 id. 41. 1 1 Chitty's Pleading, 270 ; Mostyn v. Fabrigas, Cowp. 161 ; 1 Smith's Lead. Cas. ; Lienow v. Ellis, 6 Mass. 331 ; White v. Sanborn, 6 N. H. 220 ; Birney v. Haim, 2 Littell, (Ky.)262. 503 § 302.] PAKTIES BOUND AND BENEFITED [CHAP. XIII. in Massachusetts, where the plaintiff sued on a covenant of warranty upon the sale of land in Illinois to one under whom the plaintiff claimed through mesne conveyances, the plaintiff was nonsuited on the ground of want of jurisdiction, although both he and the defendant were residents of Massachusetts, and the for- mer was, it was urged, without remedy unless the court should sustain the action. 1 Local legislation, however, has in many States altered the rule of the common law, and in a very recent case in Mississippi where a bill had been filed in that State for reimbursement of ex- penses in extinguishing a paramount title to land in Louisiana which had been conveyed with covenant of warranty to the as- signor of the plaintiff, it was suggested by the court that the suit being in equity, " which never was hampered by distinctions of local and transitory causes of action, as were courts of law," the suit might be sustained on that ground alone ; but that above and apart from this, the statute, which enumerated the local actions without naming covenant for breach of warranty, was conclusive in favor of the action being transitory. 2 1 Clark v. Scudder, 6 Gray, 122. It is obvious, moreover, that a judgment once recovered upon one of the covenants for title may be pleaded in bar of any sub- sequent suit brought upon the same cause of action. Osborne v. Atkins, id. 423 ; and see supra, § 189. 2 Oliver v. Loye, 59 Miss. 320 (s. c. 21 Amer. Law Reg. 600, with a note by one of the editors). The court (per Camp- bell, J.), referring to the fact that origi- nally all actions were local, said : " The courts in England soon freed themselves from the fetters of locality, as to all causes of action of such nature that they might arise anywhere, and by means of falsehood, politely called fiction, and stated under a videlicet, which was an apology for not telling the truth, maintained actions on such causes of action as arose out of the territorial jurisdiction of the courts of England. But such causes of action as could from their nature arise only in one place, and therefore were considered as local and to be redressed only by local actions, did not arise with the frequency of the other class, and did not press upon the courts sufficiently to induce them to 504 include them in the fiction invented to sustain the other class of actions, and as to them the courts continued bound by the idea of the place at which they arose. Therefore it is that courts governed by the common law as to actions and process have felt bound to deny a remedy for causes of action arising abroad which could be redressed only by local action. . . . The only local actions under our statute are ejectment and actions of tres- pass for injuries to land. They must be brought in the county in which the land lies. All other actions must be brought with reference to the person of the defend- ant. The common law distinction of local and transitory actions does not exist here. The statute alone governs, and we cannot disregard it, and, because under the com- mon law no remedy could be had by the assignee of a covenantee on a covenant of warranty of title of land lying in another State, deny a remedy in the courts of this State, which does not treat such an action as a local one. The courts which have held such an action not maintainable have done so under the stress of the common law, which they felt so bound them as 303.] BY COVENANTS FOR TITLE. [CHAP. XIII. The questions hence arising are or may be complicated either by the interpretation of the respective local statutes on the subject itself, or by such statutes as have, in England and elsewhere, been lately passed, more or less abolishing the distinction between law and equity. The subject is too extensive to be here considered at length. § 303. As a general rule, the liability of a covenantor will of course not be discharged by his bankruptcy, with respect to such to constrain them to do what reason re- volted at." The note of the editor (presumably Hon. Eli S. Hammond of Memphis) adds : "The statement of facts in the principal case does not disclose whether it is one main- tainable in a court of equity by reason of its jurisdiction to decree specific perform- ance, reformation or rescission, or an in- junction, with powers extended to decree damages by legislation similar to Lord Cairns's Act, 21 & 22 Vict. c. 27 [see infra, Ch. XV.], or whether the juris- diction was acquired by State statutes enlarging the jurisdiction of courts of equity. Without such legislation it might not be maintained, irrespective of any question of the differences between local and transitory actions, as there would be an adequate remedy at law for the dam- ages sued for, and it is probable a demurrer for that cause would have been sustained. Rawle, Cov."(4th ed.)648; 2 Danl. Ch. Pr. (5th ed. ) 1081. The statutory modification of the common law distinctions between local and transitory actions referred to in the principal case will probably be found in most, if not all the States having codes of practice. These generally direct when, how, and where actions may be brought, with almost sole reference to the residence or place where the defendant is found ; and in directing what actions shall be brought in the county where the land lay they confine the restriction, as in the Mississippi statute, to ejectment and trespasses on the land. But now and then we come across some old common law draftsman whose statute requires 'suits of a local nature ' to be brought within de- fined territorial limits. U. S. Rev. Stat. §§ 740, 741, 742, 744. The denial of all remedy in such cases, that sometimes re- sults where the defendant cannot be found in the particular district to which the plaintiff is confined, is obviated by these Federal statutes, if he resides in the same State, by sending the writ to that district in which he does reside. Otherwise, these statutes would seem to impose all the old- fashioned 'fetters of locality,' as Mr. Jus- tice Campbell calls them, unless we are to interpret the phrase ' suits of a local na- ture ' according to the law of the State in which the suit is brought, and not accord- ing to the common law. It might be in- teresting to note whether the principal case could have received the same intelligent judgment if it had been brought in a Fed- eral court or removed thereto — aside from the manifest difficulty of any jurisdiction of a Federal court of equity over it — which had its jurisdiction so restricted ; and if not, would we not have the com- mon law predicament, under some circum- stances, of leaving the plaintiff practically without remedy ? These questions are more easily asked than answered by any adjudications to be found affording a so- lution. And the opinion suggests with silent force the perplexities that lie within these words, ' suits of a local nature, ' re- markably dormant though they be, for the reason, perhaps, that except in ejectment where we get along without any defendant but the actual occupier, this class of suits is rare in all courts." The note, which is too long to be given in full, is an able and interesting one (as is the decision on which it comments) and closes with a cloud of authorities which may be useful to the student in his investigations. And every one will in this connection remember the question of national interest, if not im- portance, which arose in the case of Guiteau's murder of President Garfield. 505 § 303.] PARTIES BOUND AND BENEFITED [CHAP. XIII. covenants as were not broken at that time, inasmuch as, upon general principles, a creditor who has no present debt or claim to prove in bankruptcy should not be deprived of future recovery against his debtor. But whether damages arising from the breach of the covenants for title are so provable naturally depends upon the words of the respective statutes of bankruptcy. In Eng- land, before the statute of 1861, bankruptcy was no defence to an action for breach of the covenants for title happening before the bankruptcy, the demand not being considered a liquidated debt, 1 but under that statute, 2 damages might be assessed upon any de- mand arising upon contract in the nature of unliquidated dam- ages. 3 The same provision is found in the later statutes of 1869 4 and 1883, 5 and their sum is, first, that demands in the nature of unliquidated damages arising otherwise than by reason of a con- tract, promise, or breach of trust shall not be provable in bank- ruptcy ; secondly, that save as aforesaid all debts and liabilities, present or future, certain or contingent, to which the debtor was subject, shall be deemed to be debts provable; and thirdly, that the word "liability" includes any obligation or possibility of such to pay money on the breach of any express or implied covenant, con- tract, etc., whether the breach occur before the discharge or not. The United States statute of 1841, as also that of 1867, were less precise, and merely allowed " uncertain and contingent de- mands " to be proved in bankruptcy, and the decisions have not been uniform as to the effect of bankruptcy upon demands arising under covenants for title. Of course, where the final breach has occurred before the bankruptcy, the latter may be pleaded as a bar, 6 for the ultimate damage has been sustained. But where 1 Hammond v. Toulmin, 7 Term, 612 5 46 & 47 Vict. c. 52, L. It. 19 Stat. 285. (where the defendant sold a ship and cove- 6 Williams v. Harkins, 55 Ga. 1 72. nanted that he had full power to sell the And where in Parker v. Bradford, 45 Io. same free of all incumbrances) ; and see 311, there was a prior incumbrance which the notes to Mills v. Auriol, 1 Smith's the grantor agreed to pay but was dis- Lead. Cas. Robinson v. Ommanney, L. R. charged as a bankrupt before doing so, 21 Ch. Div. 780, 23 id. 285, was decided it was held that the grantee could have under the Bankruptcy Act of 1849. proved the amount of the incumbrance in 2 24 & 25 Vict. c. 134. bankruptcy, which fact discharged all fur- 3 It was, however, held that the act ther liability. Drinkwater v. Moreman, only applied to cases where the cause of 61 Ga. 395, was a case where the evicted action was complete before the adjudica- purchaser was adjudicated a bankrupt, and tion. Ex parte Mendel, 1 DeG. J. & Sm., the land having been set off to him as ex- 330. empt, it was naturally held that his rights 4 32 & 33 Vict. c. 71, L. R. 4 Stat. 398. on the covenants were unaffected. 506 § 303.] BY COVENANTS FOR TITLE. [CHAP. XIII. such lias not been the case, on the one hand it was held in New- York that the object of the act was to bar all existing claims, even when the liability imposed is uncertain and contingent, and their admission to proof must necessarily protract the settlement of the estate indefinitely ; and hence that bankruptcy might be pleaded in bar of an action on a covenant for quiet enjoyment although no breach occurred till after the petition in bankruptcy had been filed ; * and the same view was taken in other cases which went even further, and held the covenants discharged by bankruptcy even when the final breach did not occur till long after the discharge. 2 On the other hand, it has been considered that if the right to damages is dependent upon eviction, no " demand " in the proper sense of that word can before that event arise, and hence that the remedy against the covenantor survives the discharge in bankruptcy when the latter precedes the eviction, 3 and this would seem to be the juster view of the law. 4 But where the right to damages depends upon a covenant which may have, as it were, a technical and a substantial breach, more difficulty 1 Jemison v. Blowers, 5 Barb. (N. Y. ) 686. The inconvenience arising from de- lay, and the provision of the tenth section of the act which required that all proceed- ings in bankruptcy should be brought to a close within two years, were pressed up- on the court in this case. And yet not- withstanding some of the reasoning in the opinion, it may be doubted whether the case was not rightly decided, as the evic- tion (which took from the demand its ele- ments of uncertainty and contingency) happened eight months before the cove- nantor's discharge in bankruptcy, and could clearly have been proved before the commissioner as a claim in prccsenti. 2 Bates v. West, 19 111. 135 (though reluctantly, and yielding only to authority, the point being considered to have been substantially ruled in Mace v. Wells, 7 How. (S. C. U. S. ) 272, overruling s. c. in 17 Verm. 503); Baily v. Moore, 21 111. 169 ; Shelton v. Pease, 10 Mo. 473 (but see Magvvire v. Eiggin, 44 id. 514, infra, p. 508, n. 1). 8 Bennett v. Bartlett, 6 Cush. (Mass.) 225 ; Bush v. Cooper, 26 Miss. 599, af- firmed 18 How. (S. C. U. S.) 82 ; Burrus v. Wilkinson, 31 Miss. 537. 4 As of course upon an action on a cov- enant for quiet enjoyment or of warranty if there has been no eviction, actual or constructive, there is no breach, no right to even nominal damages ; no claim what- ever has arisen upon the covenant. In Shelton v. Pease and Jemison v. Blowers, supra, the court referred to a passage by Coke, that a release of all demands re- leases "all mixed actions, a warranty which is a covenant real, and all other covenants, real and personal, conditions before they are broken or performed or after," etc. Co. Litt. 291 b. But Coke wrote long before bankrupt laws, and there is the evident difference between a release of an unbroken covenant or condition, and an attempt to enforce a demand upon such a covenant or condition. In Foster v. Woodward, 141 Mass. 160, Cunningham v. Scoullar, 4 Al- len, (N. Br.) 385, and Burrowes v. De Bla- quiere, 34 U. Can. Q. B. 498, the question was whether claims under covenants for title were debts within the respective local statutes of bankruptcv and insolvency. '507 § 304.] PARTIES BOUND AND BENEFITED [CHAP. XIII. has been felt, and when the covenant is one in prcesenti, as for example a covenant against incumbrances, the " demand " has been held provable, even though no more than nominal damages (by reason of the absolute uncertainty whether loss will there- after happen) can be awarded out of the bankrupt's estate, and his discharge may be pleaded in bar of the action brought after the real damage has been sustained. 1 § 304. Whether the liability created by covenants for title be joint, or several, or joint and several, obviously depends upon the terms in which they are expressed. Where an obligation is created by two or more, the general presumption is that it is joint, 2 and words of severance are required in order to confine the liability of the covenantor to his own acts. 3 Covenants implied 1 Reed v. Pierce, 36 Me. 460 ; Magwire v. Piiggin, 44 Mo. 514. In both these cases, as in others, the distinction was noticed between a contingent demand and a con- tingency whether there ever would be a demand. In Magwire v. Riggin it was held that an inchoate right of dower (the wife being living) was not a contingent demand, and the claim was not barred by the bankruptcy, while in Reed v. Pierce, where the incumbrance was a mortgage which was foreclosed after the bankruptcy, and the covenants were against incum- brances and of warranty, it was held that the claim under the former covenant was barred, while that under the latter was not. And in Chamberlain v. Meeder, 16 N. H. 382, and Stewart v. Anderson, 10 Ala. 504, it was held that a mortgagor's discharge in bankruptcy did not affect the covenant of warranty contained in the mortgage so far as it operated to pass an after-acquired estate by estoppel. See these cases supra, p. 378, n. 5. 2 Touchstone, 375 ; Carleton v. Tyler, 16 Me. 392 ; Donohoe v. Emery, 9 Met. (Mass.) 67; Piatt on Covenants, 117. Thus in Comings v. Little, 24 Pick. (Mass. ) 266, one of two tenants in common mort- gaged his moiety thereof, and subsequently both joined in a conveyance of the whole estate to the plaintiff, with a covenant that it was free from all incumbrances, and the plaintiff having redeemed the mort- gage it was held that he could maintain his action against both covenantors. "It 508 is objected," said the court, " that the cov- enants of the defendants are to be taken distributively, and that the action should have been brought against the mortgagor alone. But this objection cannot be sus- tained. The distinction is this. "Where a man covenants with two or more jointly, and the interest and cause of action of the covenantees is several, each of the cove- nantees may bring an action for his par- ticular damage, notwithstanding the words of the covenant are joint. But where two persons covenant jointly with another, a joint action lies for the covenantee on a breach of the covenant by one of the cov- enantors only, because they are sureties for each other for the due performance of the covenant. 1 Wms. Saund. 154, note." So where, in Click v. Green, 77 Va. 827, joint owners sold, covenanting that they "would warrant generally," it was con- tended that each was liable for only a moiety of the damages, but the court ob- viously held otherwise. 3 Fields v. Squires, 1 Dead. (C. C. U. S.) 366, 373 ; Bardill v. Trustees of Schools, 4 Bradw. (111.) 94. Thus in Evans v. Sanders, 10 B. Mon. (Ky.) 291, where four heirs, " in consideration of $60, that is, $15 per share," conveyed certain land with a covenant " that each for his sepa- rate and undivided share warrants and will each separately for his own share de- fend," it was held proper to sue the four separately. § 306.] BY COVENANTS FOR TITLE. [CHAP. XIII. by operation of law, as from the word demiserunt, are coexten- sive with the interest granted, that is, joint if a joint estate, and several if a several interest. 1 In some of the United states it is provided by statute that joint covenants shall be taken to be joint and several. 2 § 305. The questions which arise as to the liability of a married woman on covenants for title may be divided into three classes : — First. Her liability at common law ; Second. Her liability in equity as to her separate estate ; Third. Her liability under such modern statutes as are gener- ally known as " Married Women's Acts." § 306. 1. And first, at common law. It is familiar that in England until the present generation the estate of a feme covert, whether her own estate or her estate of dower in her husband's land, could not pass unless by her suffer- ing a fine, which was a proceeding of record before a court whose judges were supposed to watch over the rights of the wife. 3 And it seems to have been held in a rather old case, 4 contrary to the doctrines of the common law, which ignored the liability of a feme covert as it did most of her rights, 5 that if husband and wife con- vey her land by fine with warranty, an action of covenant will lie against her, and though it was a case of the first impression, the judges " all thought that the action well lay against the defend- 1 Coleman v. Sherwin, 1 Show. 79 ; woman doth not speak any language that s. c. 1 Salk. 137. Piatt (Covenants, p. the judge doth understand," there should 117) remarks, " Very few questions have be an interpreter under oath. 2 Inst. 515. been agitated whether covenants on the 4 Wotton v. Hele, 2 Saund. 180 ; 1 part of the covenantors have been joint, Mod. 291. several, or joint and several ; the language 5 That is to say, such liabilities as af- has generally been sufficient to indicate the fected the person, and not the land. The intention of the parties and the nature of cases cited in the note to Wotton v. Hele the covenant in this respect." The ques- in Saunders show that acceptance by a tionas to the rights of joint covenantees is, married woman of rent due under a lease however, considered infra, § 315. binds her to the covenants contained in it, 2 Illinois Rev. Stat. 1883, p. 676, § 3 ; and the report in Modern says that " this Montana Rev. Stat. 1879, p. 570, § 772. point was agreed by the counsel on both 3 The modern acknowledgments con- sides, and so this court agreed," and by tain nearly all the requirements to a valid analogy it is held in Pennsylvania that fine ; the wife must be of full age, exam- if a conveyance of land be made to a mar- ined "solely and secretly" as to whether ried woman who joins her husband in a she levied the fine " without any menace covenant to pay the ground-rent reserved or threat," and "everything distinctly as the entire consideration therefor, she is contained in the writ so as she perfectly bound by her covenant. Cowton v. Wick- understand what she doth," and "if the ersham, 54 Pa. 302. 509 § 306.] PARTIES BOUND AND BENEFITED [CHAP. XIII. ant on her warranty in the fine although she was covert-baron, and they did not make any scruple of it." 1 The case, however, stands alone in England ; and in the United States, where fines have given place to a separate acknowledgment before a magis- trate, 2 a cloud of authorities has settled that at common law a married woman is not bound to respond in damages by reason of any covenants for title made by her on the conveyance of her estate. 3 1 For the defendant it was argued, "For although femes covert may pass their rights in land by fine , because they are examined by a judge of record, yet they cannot bind themselves in a personal security by cove- nant, as in this case, for a feme covert cannot covenant to pay damages, nor can she bind herself in a statute or recogni- zance, though her husband join in with her ; " while for the plaintiff it was said, "It is commouly seen that femes covert with their husbands by fines warrant lands in fee simple every day, and it binds them to warranty ; " and in the report in Modern, " The law enables a feme covert to corrob- orate the estate she passes, and to do all things needed ; if she levy a fine of her inheritance, she may be vouched, or a ivarrantia chartce, etc. thereupon be had against her ; " but for this, no authority was or could be cited. In the recent case of Hardy v. Mills, 13 Weekly Notes, (Pa.) 79, it was argued, on the authority of Wotton v. Hele, that a married woman was liable on the covenant implied from the words of grant (supra, § 285), and under the statute which provided that a deed separately acknowledged should be as valid as against the wife as though she were a feme sole ; but it was obviously held that the statute meant no more than to pass the title. A similar decision as to liability on the implied covenants was made in Fell- bush v. Stevens, 15 id. 237. 2 As is now the case in England since the statute 3 & 4 "Will. IV. c. 74. 3 " The doctrine," says Kent (2 Comm. 167), "that a wife can be held bound to answer in damages after her husband's death on her covenant of warranty en- tered into during coverture, is not con- sidered by the courts in this country to be law, and it is certainly contrary to the 510 settled principle of the common law that the wife was incapable of binding herself by contract ; " and to the same effect are Ben- ton Co. v. Rutherford, 33 Ark. 640; Strawn v. Strawn, 50 111. 37 ; Butsford v. Wilson, 75 id. 132; Aldridge v. Burlinson, 3 Blackf. (Ind.) 201 ; Griner v. Butler, 61 Ind. 363; Falmouth v. Tibbatts, 16 B. Mon. (Ky.) 641 ; Hobbs v. King, 2 Met. (Ky.) 141 ; Menally v. White, 3 id. 593 ; Curd v. Dobbs, 6 Bush, (Ky.) 685; Colcord v. Swann, 7 Mass. 291 ; Nash v. Spofford, 10 Met. (Mass.) 192 ; Hovey v. Smith, 22 Mich. 170 ; Carley v. Fox, 38 id. 387; Wadleigh v. Gaines, 6 N. H. 17 ; Fowler v. Shearer, id. 21 ; Whitbeck v. Cook, 15 Johns. (N. Y.) 546 ; McAfee v. Bettis, 72 N. C. 28 ; Chambers v. Spencer, 5 Watts, (Pa.) 406 ; Dean v. Shelby, 57 Pa. 427 ; Porter v. Bradley, 7 R. I. 541 ; Foster v. Wilcox, 10 id. 443 ; Fletcher v. Coleman, 2 Head, (Tenn.) 388 ; Sumner v. Went- worth, 1 Tyler, (Verm.) 43; Sawyer v. Little, 4 Verm. 414. In the early case in Virginia of Nelson v. Harwood, 3 Call, 394, specific performance of a wife's cove- nant for further assurance was decreed on the ground that as all objections arising from supposed want of freedom of will on her part are, removed by her private exam- ination, her deed was as binding upon her as if she were a feme sole. But such has not elsewhere been generally considered to have been the effect of the modern ac- knowledgments, and a Virginia statute to the contrary was soon after passed ; supra, p. 377, n. 3. But although not liable to respond in damages, the covenants of a married woman have often been held to bind her by way of estoppel or rebutter, although this effect also has been often denied. See supra, p. 376. 308.] BY COVENANTS FOR TITLE. [CHAP. XIII. § 307. 2. Her liability in equity as to her separate estate. As an incident of the equitable doctrine which, contrary to that of the common law, recognized and enforced, through the medium of a trust, the right of a married woman to her separate estate, it came to be held that while she was thus protected, she should be correspondingly bound, and hence a feme covert was, as to her separate estate in equity, treated for all intents and purposes as a feme sole. 1 Such was and is the English rule to this day, and the adherence to it and the divergence from it by courts on this side of the Atlantic are sufficiently familiar; the English rule being adhered to in some States, while in others it is considered that a married woman has no powers over her separate estate in equity except those given to her by the trust instrument. 2 § 308. 3. Her liability under the " Married Women's Acts." The American colonies were, as to some of their laws as to married women, nearly two centuries in advance of the mother country, and when and as they became States, the colonial doc- trines continued, and the United States have been more than a generation in advance of England as to the passage of statutes 1 This subject is exhaustively treated in the notes to Hulme v. Tenant, 1 Lead. Cas. in Eq. (4th Am. ed. ) 679. See also Bispham on Equity, § 96 ct scq. ; 2 Perry on Trusts (2d ed.), § 625 et seq. It was accordingly held in New York, that al- though under the statutes of 1848 and 1849 then in force, a married woman was not liable at laxo for the breach of her covenants for title in a conveyance of her estate (Coakler v. Chamberlain, 38 How. Prac. 483), yet that she could be charged therefor in equity. Kolls v. De Leyer, 41 Barb. S. C. 208 ; s. c. 26 How. Prac. 468. Subsequent legislation has, however, made her so liable at law (infra, p. 513, n. 4), and there is now no distinction in New York between her liability at law or in equity. Nichols v. Kinney, 13 Weekly Dig. 418 ; Corn Exchange Bank v. Bab- cock, 42 N. Y. 622. In Alabama, also, the wife has been held liable in equity as to her separate estate. Gunter v. Wil- liams, 40 Ala. (n. s.) 561. "A married woman is regarded in equity," said the court (p. 572), " so far as her separate es- tate created by contract is concerned, as a feme sole, and she may bind her separate estate by any contract by which she could bind herself if sole and unmarried. The power of the wife to bind her separate es- tate by the covenants of a deed is evi- dently asserted in this general principle, and we know of no case or doctrine upon which such power could be excepted from the general rule." 2 Notes to Hulme v. Tenant, etc. , supra. It is considered by the text writers referred to, that the States in which the separate estate in equity of a married woman is bound by her contracts, as an incident of the doctrine which protects it for their benefit, are Vermont, New York, New Jersey, Connecticut, Kentucky, Virginia, North Carolina, Georgia, Missouri, Min- nesota, Maryland (it was formerly other- wise there), Florida, and California, and the doctrine has been approved by the Su- preme Court of the United States ; Cheever v. Wilson, 9 Wall. 119 ; Stephen v. Beall, 22 id. 329 ; while the States in which she is not so bound are Rhode Island, Penn- sylvania, Ohio, Tennessee, Illinois, Alaba- ma, South Carolina, and Mississippi. 511 § 308.] PARTIES BOUND AND BENEFITED [CHAP. XIII. protecting the property of married women. Still, the earliest of them are of comparatively modern date, and it is truly said that " these statutes have not yet been moulded into a consistent whole, nor have they received such judicial construction that any certain general principles can be safely affirmed of them all," 1 and it would be as difficult as it might be mischievous and mis- leading to attempt to trace with accuracy the course of legislation, and to analyze the course of judicial decision in our numerous States and Territories, each having its local laws. All that can or ought to be attempted is, therefore, to state, as accurately as the means will allow, what is the present law in the United States upon the subject as directly connected with covenants for title. In Arizona, Colorado, Missouri, Nebraska, Nevada, New Mex- ico, West Virginia, and possibly other States, the doctrine of the common law has been affirmed by statutes providing that no cove- nant, express or implied, in a conveyance shall bind a married woman or her heirs, except so far as may be necessary effectually to convey from her and them all the estate conveyed. 2 In Ver- mont, Oregon, and Nebraska, the language is somewhat altered ; 3 in Iowa, it is provided that where either husband or wife joins in a conveyance of real property owned by the other, he or she so joining shall not be bound by the covenants of such convey- 1 2 Perry on Trusts, § 676. the wife as she might do by her separate 2 In Arizona, Comp. Laws of 1877, p. deed, if unmarried ; but the wife shall 382, § 20, the provision, substantially the not be bound by a covenant contained in same in many of the States, is thus : " No such joint deed." See Goodenough v. Fel- covenant expressed or implied in any such lows, 53 Verm. 102. conveyance shall bind a married woman Oregon Gen. Laws. 1874, p. 515, c. 6, or her heirs, except so far as may be neces- § 2 : "A husband and wife may, by sary effectually to convey from such mar- their joint deed, convey the real estate of ried woman and her heirs all her rights the wife in like manner as she might do and interest expressed to be conveyed in by her separate deed if she were unmar- such conveyance." And to the same effect ried ; but the wife shall not be bound are the statutes in Colorado (Gen. Stats., by any covenant contained in such joint 1883, p. 177, § 223), Missouri (Rev. Stats., deed." (See Fahie v. Pressy, 2 Ore. 23 ; 1879, p. 109, § 669), Nevada (Comp. Laws, Carter v. Chapman, id. 93 ; Hasty v. 1873, vol. i. p. 84, § 261), New Mexico Ladd, 3 Ore. 353.) (Comp. Laws, 1885, §2757), and West Vir- Nebraska Comp. Stat. 1885, p. 482, ginia (Amended Code, 1884, p. 559, c. 73, § 48 : "A married woman shall not be § 6). bound by any covenant in a joint deed 8 Vermont Rev. Laws, 1880, p. 398, of herself and husband." There had been §1923: "A husband and wife may, by varied legislation before this time ; see Real their joint deed, convey the real estate of v. Hollister, 17 Neb. 661. 512 § 308.] BY COVENANTS FOR TITLE. [CHAP. XIII. ance, unless it is expressly so stated on the face thereof. 1 On the other hand, in Delaware, a middle ground seems to be taken, the statute providing that a married woman's deed shall not bind her to any warranty except a special warranty against herself and her heirs and all persons claiming by and under her, and that no covenant on her part of a more extensive or different effect shall be valid against her. 2 In New Jersey, 3 the statute is broader, while in Maryland, New York, Rhode Island, and In- diana it is expressly provided that a married woman shall be bound by her covenants as if she were a feme sole. 4 These seem to be the only States in which the liability on cov- enants for title is expressly provided for. Of course, as such covenants are mere contracts, they fall within such broader statutes as exist in many States declaring how and to what ex- tent a married woman shall or shall not be bound by her con- tracts generally. Thus, for example, in the late English Married Women's Property Act of 1882, which, a generation and more be- hind most of such legislation in the United States, perhaps goes beyond any of them in its breadth, it is declared that " a mar- ried woman shall be capable of entering into and rendering her- 1 Iowa Rev. Code, 1884, p. 524, § 1931. New York Rev. Stats., 1882, vol. iii. 2 Delaware Rev. Stats. 1874, p. 501. p. 2338, § 3 : "Any married woman pos- 3 New Jersey Rev. Stats., 1877, p. 638, sessed of real estate as her separate prop- §7: "In any deed hereafter made by any erty may bargain, sell, and convey such married woman of full age, who joins property and enter into any contract in with her husband in executing said deed, reference to the same, with the like effect of any lands or of any estate therein, it in all respects as if she were unmarried, shall be lawful for her to enter into any and she may in like manner enter into covenant as to the title of the lands there- such covenant or covenants for title as are by conveyed, or against incumbrances usual in conveyances of real estate, which thereon, or warranting the same ; pro- covenants shall be obligatory to bind her vided, that such covenants, except so far separate property, in case the same or any as relates to land, or some interest therein of them be broken." owned by her in her own right, shall have Rhode Island Pub. Stats., 1882, p. 422, no greater or other effect than to estop § 4, providing that the covenants of a her and all persons claiming as her heirs, married woman relating to her separate or by or through her in the same manner real estate "shall be binding upon her as if she were a single woman. " and her legal representatives when made * Maryland Rev. Code, 1878, p. 483, by deed in which such married woman § 29 : "In all deeds hereafter made to joins with her husband, such deed to be married women of real estate or chattels acknowledged," etc. real, it shall be competent for the grantee Indiana Rev. Stats., 1881, p. 1107, or lessee to bind herself and her assigns, § 5118 : "A married woman shall be bound by any covenant running with or relating by her covenants of title in conveyances to said real estate or chattels real, the of her separate property, as if sole." same as if she was a feme sole." 33 513 § 309.] PARTIES BOUND AND BENEFITED [CHAP. XIII. self liable in respect of and to the extent of her separate property on any contract, and of suing and being sued, either in contract or in tort, or otherwise, in all respects as if she were a feme sole," 1 and no one could doubt that under this her liability on her covenants was beyond question. So in Massachusetts, the Public Statutes of 1882 provide that "a married woman may make contracts, oral and written, sealed and unsealed, in the same manner as if she were a feme sole, except that she shall not be authorized hereby to make contracts with her husband," 2 and statutes more or less similar have been passed in many other States. 3 But the subject is too extensive and too essentially local to be more fully considered here. § 309. 2. Of the Heir. — The liability (whether immediate or ultimate) of the heir by reason of his ancestor's covenants for title depends in this country, to a great extent, upon the statutory provisions adopted in the different States for making the real 1 The statute goes on to say, "and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her ; and any damages or costs recovered by her in any such action or proceeding shall be her separate property ; and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property, and not other- wise ; " and the next section provides that " Every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary be shown." Act of 45 & 46 Vict. c. 75, L. E. xvii. Stat. 454. It is not neces- sary here to refer to the previous act of 1870, 33 & 34 Vict. c. 93. 2 Mass. Pub. Stats., 1882, p. 819. 8 As very recently in Pennsylvania by the act of June 4, 1887. The subject is treated in Schouler on Husband and Wife, 2d ed., § 204 et seq. ; 3 Washburn on Real Property, 5th ed. 261. In an article in 6 Southern Law Review, 633, it is stated, as an illustration of the want of crystalli- zation of such legislation, that in Connect- icut eleven Married Women's Acts were passed within twenty-one years. In the fourth edition of this treatise 514 reference was made to decisions in Massa- chusetts, Alabama, Iowa, and elsewhere, upon statutes which have since been re- pealed, and which are, therefore, here omitted. They are, however, of course applicable to all cases depending upon the law in force when the cause of action arose. It may be said, iu passing, that the same divergence of doctrine as to the construc- tion of the Married Women's Acts has at times prevailed in the different States as has taken place with respect to a married woman's separate estate in equity, it being held in some of them that if the law gives to her a benefit, she should take it subject to its incidental burdens. Gunter v. WiL- liams, 40 Ala. 561 ; Richmond v. Tibbies, 26 Io. 474 ; Basford v. Peirson, 7 Allen, (Mass.) 504 ; Fenton v. Lord, 128 Mass. 466 ; Coolidge v. Smith, 129 Mass. 554 ; Huyler v. Atwood, 26 N. J. Eq. 504. In others it is held that as the common law gave her immunity from contract, the pro- tection should not be taken away by im- plication. Stidham v. Matthews, 29 Ark. 650 ; Gore v. Carl, 47 Conn. 291 ; Bots- ford v. Wilson, 75 111. 133. And in some States, the ebb and flow of judicial decision have covered both sides of the doc- trine. See for example the cases cited in Richmond v. Tibbies, supra, and Schou- ler on Husband and Wife, § 270. § 309.] BY COVENANTS FOR TITLE. [CHAP. XIII. estate of a decedent liable for the payment of his debts, although as respects the source of this liability there is no difference either in England or here between the covenants for title and any other specialty contracts. In order that an heir should be liable upon the obligations of the ancestor, there were two requisites necessary at common law. First, that he be expressly named ; * so that in an action against him as heir the averment was necessary that he was named in and bound by the obligation, and this, as has been seen, was the rule as to the ancient warranty ; 2 and secondly, that he should have assets by descent sufficient to meet the demand, and he was bound by the warranties, covenants, or other specialties of his ancestor only to the extent of these assets. 3 A spe- 1 Co. Litt. 209 a. It has sometimes happened that careless conveyancing has framed the covenants so as to bind the heirs, executors, etc. of the grantor, but not himself. In such a case in Illinois (Rufner v. McConnell, 14 111. 168), it was held that, although it was an un- usual covenant, the parties were bound by its terms ; until the death of the grantor there was no party in esse who could be called upon to avouch the title, and the presumption was that the grantor refused to become personally responsible but was willing to charge his estate, and that the grantee preferred to accept such a covenant rather than have none at all ; if, however, it were owing to mistake, such could only be rectified in a court of equity upon application to reform the deed, and in the later cases of Baker v. Hunt, 40 id. 264, and Traynor v. Palmer, 86 id. 477, this was approved. In Hawk v. McCullough, 21 id. 220, it was held that a covenant that the heirs, etc. of the grantor should defend, did not qualify the covenant implied by the words "grant, bargain, and sell," and that the grantor was himself liable upon the latter cove- nants. In a case in Wisconsin, however, (Hilmert v. Christian, 29 Wis. 104,) the court saw no force in the objection that the grantor did not covenant for him- self, but only for his heirs ; it was plain enough upon the face of the instrument that he bound himself by those covenants. And recently in Michigan, it was consid- ered that inasmuch as the liability of the heirs resulted solely from the obligation on the ancestor, the latter must necessa- rily be bound unless he could be held to be acting as their agent and under their au- thority, which could not be pretended. Smith v. Lloyd, 29 Mich. 382. In Bow- man v. Long, 89 111. 19, the covenants were several, " except J. E. and his legal representatives," and the contention that his heirs did not come within the excep- tion as not beiug legal representatives was denied. 2 Brooke's Abr. tit. Garranties, pi. 89 ; supra. 3 Buckley v. Nightingale, 1 Strange, 665 ; 2 Black. Comm. 243 ; for the doc- trine of lineal and collateral warranty, see supra, § 8 et seq. In Hall v. Martin, 46 N. H. 337, it was held that although by the common law the heir was liable on the covenants of his ancestor just so far only as he had assets by descent, and that as real estate alone descended to him, his liability was limited to that, irrespective of any personal estate which he might have received as next of kin, yet where by local statute the personal estate was made to descend to him substantially in the same way, it should be treated as assets in his hands equally with the real estate. Per Bellows, J. ; Perley, C. J., and Bart- lett, J., dissenting. Under a statute of Indiana, abolishing "lineal and collateral warranties, with all their incidents," it has been held that the warranty of a ten- 515 § 309.] PARTIES BOUND AND BENEFITED [CHAP. XIII. cialty creditor acquired, however, additional means of recom- pense by the death of his debtor, for although by the common law during his lifetime no recourse whatever could be had to his lands by means of execution, and the statute of Westminster the Second 2 gave but the right to have one half of them ex- tended or delivered under a writ of elegit, yet after the death of the debtor an action would lie against the heir upon the specialty debts, by means of which all the assets by descent were liable to be taken in execution. 2 The result was that the bond creditor had, after his debtor's death, a greater security than the judgment creditor ; for the lat- ter, by reason of his judgment, charged the heir only as tenant of the land. No personal action would lie against the heir on such judgment, and the only remedy of the creditor was by scire facias to have execution of the lands, which, as has been seen, under the statute of Westminster he could have but to a limited extent, 3 as the death of the ancestor did not alter the nature of the execution any more than it did the nature of the debt, 4 while on the bond debts the creditor could at his election, by a special judgment, have execution upon all the lands in the possession of the heir. ant by the curtesy does not bar the heirs which Penn v. Lord Baltimore, 1 Ves. of the mother, even though they received 444, is the leading one) that a court of assets by descent from the covenantor equity would, upon proof of such assets, (see supra, p. 358, n. 2), but that the per- in the exercise of its jurisdiction in per- sonal representatives of the latter were sonam, and where the case was already liable for the damages caused by a breach before the court for another purpose, on of his covenant. Hartman v. Lee, 30 proof of such assets, decree an account Ind. 281. thereof by the heir, towards the satisfac- It was obviously held in Hart v. tion of a covenant of warranty made by Thompson, 3 B. Mon. (Ky.) 485, that the ancestor. In Beall v. Taylor, 2 Grat. heirs of their mother's estate could not be (Va. ) 532, it was held that a judgment made to pay, out of it, damages caused by against heirs in another State, where a breach of their father's covenants for there were no assets, did not merge the title, and the law was held the same way covenants, and that the plaintiff might in Urquhart v. Clarke, 2 Rand. (Va. ) 549. sue the heirs in Virginia, where the assets See also Piatt on Covenants, 450, and were. The difference between the coni- supra, § 239. mon law and the West Virginia Revised In Dickinson v. Hoomes, 8 Grat. (Va.) Statutes was shown in the recent case of 410 (noticed as to another point, supra, Ilea v. Creel, 22 W. Va. 373. p. 483, n. 2), the court admitted that assets 1 13 Edw. I. c. 18. which had descended to the heir in Ken- 2 Harbert's case, 3 Eep. 12 a ; Davy tucky could not be noticed in an action v. Pepys, Plowd. 441. against that heir in Virginia, on a bond 8 Harbert's case, supra ; Bowyer v. of his ancestor, but decided (on the au- Rivitt, W. Jones, 87. thonty of that familiar class of cases of 4 Stileman v. Ashdown, 2 Atk. 608. 516 § 309.] BY COVENANTS FOR TITLE. [CHAP. XIII. A warrantia chartce or a voucher, being both essentially real actions, could of course be brought only against the heir, but upon covenants, as upon other specialties, the creditor might sue either heir or executor at his option, or bring separate actions against them at the same time, 1 so that an heir could not plead in an action brought against him that there was an executor who had assets. 2 Nor was there at common law any distinction between bond debts and covenants, either as to the liability of the heir to be sued upon them, or the right of the covenantee to come in upon the assets as a specialty creditor ; 3 nor, consequently, between covenants for title and other specialties, 4 nor was it material whether the covenant was broken before or after the covenantor's death, provided the amount of the damages was liquidated. 5 But although the heir was thus bound by his ancestor's bonds and covenants when named in them, and to the extent of the assets, yet if, before suit brought, he had aliened the lands which he had inherited, the creditor was without remedy. 6 The " statute of fraudulent devises " 7 was intended to remedy this mischief, doubtless not only with respect to the ancestor's specialty debts, but perhaps also as to his covenants, as the fifth section of that statute, after reciting that many heirs at law, to avoid the pay- 1 Brooke's Abr. Assets per Descent, pi. was held by Lord Hardwicke to be a 33 ; Com. Dig. Pleader, 2 E. 8 ; Quarles specialty creditor. In Giles v. Roe, 2 v. Capell, Benl. 96 ; s. c. 2 Dyer, 204 b. Dickens, 570, the same was applied to a 2 Galton v. Hancock, 2 Atk. 426 ; covenant for seisin, and in Parker r. Har- Davy v. Pepys, Plowd. 441 ; Quarles v. vey, 2 Eq. Ca. Ab. 460, and Fergus v. Capell, supra ; Davies v. Churchman, 3 Gore, 1 Sch. & Lef. 107, to a covenant Lev. 189. against incumbrances ; and in the recent a Plumer v. Marchant, 3 Burr. 1384 ; case of In re Dickson, L. R. 12 Eq. 154 Godolph. Orph. Leg. pt. 2, c. 28 ; "Went, (infra, Ch. XV.), to a covenant for fur- Ex. 146 ; Dyke v. Sweeting, Willes, 585 ; ther assurance. In Lovell v. Sherwin, 2 Benson v. Benson, 1 P. Wms. 131 ; Mus- Eq. R. 329, the deed contained all the son v. May, 3 Ves. & Beames, 194 ; Jen- covenants for title. kins v. Biiant, 6 Simons, 603 ; Watson 5 Cox v. King, 9 Beav. 533 ; Her- v. Parker, 6 Beav. 283 ; Frazer v. Tunis, vey v. Audland, 14 Sim. 531 ; Lomas v. 1 Binney, (Pa.) 254. Wright, 2 Mylne & Keen, 769 ; Eardley 4 Cruise, c. 20, § 66 ; Higgingbotham V. Owen, 10 Beav. 572 ; see infra, Ch. v. Corn-well, 8 Grat. (Va.) 86 ; Gannnrd XV. ; Davis v. Smith, 5 Ga. 285 ; Stultz- v. Eslava, 20 Ala. 732 ; Post v. Stiver, 29 foos's Appeal, 3 Pa. (old Pa., not Pa. St.) N. J. Eq. 534. In the case of Earl of 265. Bath v. Earl of Bradford, 2 Ves. 587, one 6 Plunket v. Penson, 2 Atk. 290 ; who had received a covenant for quiet en- Davy v. Pepys, Plowd. 439. joyment, and whose damages were liqui- 7 3 & 4 Will. & Mary, c. 14. dated by a recovery against the executor, 517 § 309.] PARTIES BOUND AND BENEFITED [CHAP. XIII. nient of such just debts as in regard to the lands descending to them they had become liable to pay, had aliened such lands be- fore process was or could be issued against them, declared that the heir should be answerable for such debts, in an action of debt, to the value of the lands so aliened, saving that the lands bona fide aliened should not be liable to execution. 1 But however this section may have been intended to protect as well a covenantee as a specialty creditor, it seems to have failed of its object, for first, the cases of Wilson v. Knubley 2 and Farley v. Briant, 3 though based upon another section of this statute to be presently referred to, held that its provisions, which are very similar to that just cited, applied to debts and actions of debt, and could not re- ceive so liberal a construction as to include covenants ; secondly, it was quite usual to find in English conveyancing a bond to se- cure the performance of covenants, on which, as is seen in many of the cases, actions of debt will lie, 4 which practice has been sup- posed to have been introduced in order to bring the case within the letter of the statute ; and thirdly, in a later statute, 5 intended 1 Before the passage of the statute of frauds (29 Car. II. c. 3), descended trust estates were not assets in the hands of the heir. But that statute provided that if any cestui que trust should die, leaving a trust in fee simple to descend to his heir, the trust should be taken to be assets by descent, and the heir liable, by reason of such assets, as fully and amply as he might have been if the estate in law had descended to him by possession in like manner as the trust descended. Piatt (Covenants, p. 451) remarks, "A right of action against the heir, in respect of such assets by descent, cannot, it is appre- hended, be defeated by his alienation of the estates prior to the commencement of, or pending legal proceedings ; the charge once attaching will, it is supposed, con- tinue in operation against him and his personal representatives, for the benelit of tin covenantee or his representatives, until compensation be made for any breach of the covenant committed during the life- time, or even after the decease of the ancestor." 2 7 East, 128. 3 3 Ad. & Ell. 839. 4 It may be supposed that there are 518 also reasons which, in this country, seem to point out the propriety of taking a bond for the performance of covenants ; on the ground that although a covenant itself, if unbroken at the death of the cov- enantor, would not be a lien upon his real estate, yet a bond for the perform- ance of such a covenant might be a lien. Such an opinion, however, seems not ten- able. In Godolph. Orph. Leg. pt. 2, c. 28, it is said : "But executors (under pretence or color of recognizances for the peace or good behavior, or the like, or under pretence of statutes for performing covenants touching the enjoying of lands not forfeited, nor any sums of money pos- sibly ever thereupon becoming payable) are not to withhold payment of debts by specialty, and thereby defraud the credi- tors, so that if the statute or recognizance be only for performance of covenants, and no covenant be broken, an obligation for the payment of present money shall be discharged before it." But the passage merely refers to the duty of the executor as to not withholding payment on such pretences. 5 1 Will. IV. c. 47, known as Sugden's Act. § 310.] BY COVENANTS FOR TITLE. [CHAP. XIII. to amend and supply the defects in the statute of fraudulent devises, after the words " liable to pay the debts " is inserted " or perform the covenants," and the word " covenants " is introduced after " debt or debts " wherever it occurs. 1 § 310. The peculiar difference which appears to exist between the English and American law as to the liability of an heir on his ancestor's covenants for title is, that while in England the covenant is of course no lien upon his real estate during his life, so it does not become one after his death until action brought ; and in case no action is brought, or if, before such action, the heir bona fide alien the land, the purchaser will take it clear of lia- bility, whether the covenant be broken before or after the cove- nantor's death. 2 If the alienation be a fraudulent one, though the purchaser's title will still be secured to him, yet the heir will be liable out of his own estate to the value of the lands thus aliened ; and if the lands have not been aliened at all, but still remain in the heir's possession, he will be liable to the extent of their value, both by common law and by statute, and the covenantee may sue the heir or the executor, at his election. But in the United States, it may be said that as a general rule lands are liable for the debts of a decedent, whether due by matter of record, 3 by specialty, or by simple contract. In the last two 1 These statutes will be found in Ram are debts unpaid, the land is not liable, on Assets, 213 ; and in the notes to Jeffer- though the heir or devisee remains person- son v. Morton, 2 Saund. 7, and to Silk v. ally liable, to the extent of the value of Prime, 2 Lead. Cas. in Eq. the land alienated. Richardson v. Horton, 2 The law is thus stated in the note 7 Beav. 112, 123 ; 4 Mylne & Cr. 26S, 269; to Silk v. Prime, 2 Lead. Cas. in Eq. : Sugden on Vendors, 834, 835 ; Spackman " Neither debts by specialty in which the v. Tinibell, 8 Sim. 259, 260; but see Pimm heirs are bound, nor simple contract debts, v. Insall, 7 Hare, 193, where it was held even since the 3 & 4 Will. IV. c. 104 (infra, that creditors would not be defeated by p. 521, n. 1), constitute a lien or charge the marriage articles of an infant heir at upon the land, either in the hands of the law." Pimm v. Insall went however upon debtor or of his heir or devisee. Notwith- the ground that the marriage articles in standing the existence of such debts, the question were not binding upon the wife, debtor himself may alienate the land. By who had died without having done any taking proper proceedings, the creditors, act to confirm them, and hence that the both by specialty and proper contract, real estate of her ancestor descended to may obtain payment out of the descended her heir discharged from the articles, and or devised real estate in the hands of the subject to their original liability to pay heir or devisee ; but if such proceedings the debts of the ancestor ; s. c. on appeal, are not taken, the heir or devisee may 1 Macn. & Gord. 449 ; and see Peachy on alienate, and in the hands of the alienee, Marriage Settlements, 29. whether upon a common purchase or on a 3 The words " matter of record " here settlement, even with notice that there include not only things which appear on 519 § 310.] PARTIES BOUND AND BENEFITED [CHAP. XIII. cases, the existence of the debt, unless it be reduced to judgment, creates no lien during the debtor's life. By his death, however, its quality is changed, and it becomes a lien upon his real estate, which descends to the heir or passes to the devisee subject to the payment of the debts of the ancestor according to the laws of the State in which it lies, 1 and the rights of the creditor can, in most of the States, be enforced against the lands in the hands of a bona fide purchaser, 2 within certain statutory limitations as to time. But while this is the general doctrine, yet its application is of course modified by local laws. By the common law, as we have seen, a covenantee might sue either the executor or the heir at his election, but this has been altered by statute in many States, and in them the liability of an heir on the covenants of his ances- tor is a contingent one, depending upon the inability of the cove- nantee to procure satisfaction out of the personal estate. 3 the records of a court, such as judgments, recognizances, and the like, but those which are recorded or registered under local statutes, such as mortgages, etc. 1 Watkina v. Holman, 16 Pet. (S. C. U. S.) 63 ; 4 Kent's Comm. *421 ; 2 Mil- liard's Abr. 539. 2 Gore v. Brazier, 3 Mass. 523 ; Graff v. Smith, 1 Dall. (Pa.) 481 ; Morris v. Smith, 1 Yeates, (Pa.) 244; Ricard v. Williams, 7 Wheat. (S. C. U. S.) 59; Griswold v. Bigelow, 6 Conn. 268. 8 Webber v. Webber, 6 Greenl. (Me.) 136 ; Hutchinson v. Stiles, 3 N. H. 404; and see the later case of Ticknor v. Har- ris, 14 id. 272, for a review of the com- mon law and the English and New Hamp- shire legislation, and the more recent case of Hall v. Martin, 46 id. 337 (stipra, p. 515, n. 3) ; Roe v. Swezey, 10 Barb. S. C. (N. Y.) 247 ; Stuart v. Kissam, 11 id. 271 (see Haynes v. Colvin, 19 Ohio, 396) ; Boyd v. Armstrong, 1 Yerg. (Tenn. ) 40 ; Hartnran v. Lee, 30 Ind. 283. And in Royce v. Burrell, 12 Mass. 399, where the heir was sued on the ancestor's covenant for title, the plaintiff was nonsuited on the ground that application had not been first made to the personal estate through the administrator. The remark of Gibson, C. J., in Fritz v. Evans, 13 Serg. & Rawle, (Pa.) 14, that "in Pennsylvania, lands 520 being in all cases assets for the payment of debts, only the executor can be sued," would seem to apply to all other States where lands are thus made assets in the hands of the executor, and in them the immediate liability of the heir by an action of covenant against himself would seem to be taken away. As to his ultimate liabil- ity, the statutory provisions are, in differ- ent parts of the country, widely different. In many States the land can be summarily taken in execution in the hands of the heir or devisee, upon a judgment thus obtained against the personal represent- ative. This was formerly the law in Penn- sylvania ( Payne v. Craft, 7 Watts & Serg. 465 ; Benner v. Phillips, 9 id. 13 ; Kee- nan v. Gibson, 9 Pa. 250), but has since been altered in that State, and a scire fa- cias quare executioncm non is now directed to the heirs and devisees, with notice to the terre-tenants, who, notwithstanding the judgment against the personal repre- sentative, will, in some cases, be let in to contest the claim on its original grounds. Murphy's Appeal, 8 W'atts & Serg. 165 ; Atherton v. Atherton, 2 Pa. 113 ; But- ler v. Slam, 50 Pa. 456. In Chambers v. Wright, 40 Mo. 482, certain tenants in common having made partition, cove- nanted with each other for themselves, their heirs and personal representatives, § 310.] BY COVENANTS FOR TITLE. [CHAP. XIII. It is not, however, proposed to discuss the interesting subject of the liability of real estate for the debts of a decedent. It is one almost exclusively local in its application, and it may be sufficient to have briefly referred to the common law, and pointed out the sources whence fuller information may be derived with respect to its alteration. 1 that in the event of any suits being brought against either of them respecting the title, the expenses should be equally borne between them. After the death of all of them, such suits were brought against the estate of one of them, whose administrator then sued the heirs and devisees of one of the others for con- tribution, but it was held that this was " purely a personal and collateral cove- nant, and does not belong to the class of covenants which run with the land and concern the tenure and enjoyment of the property conveyed," and a demurrer to the petition was sustained. The case may have been correctly decided on one of the grounds taken, viz. that the suit could not be brought by the administrator, who had nothing to do with the real estate. Otherwise it would certainly seem that the purpose for which the covenant had been entered into was defeated. In Coakley v. Chamberlain, 38 How. Pract. (N. Y.) 483, a tenant for life under her husband's will, with remainder to her children, married again and leased for a term of years, covenanting for quiet en- joyment, and died before the expiration of the term, when the tenant, being evicted by the children under proceedings in par- tition, brought covenant against them and the executor of their mother the covenan- tor. As against the former it was held that the plaintiff could not recover, al- though they had received the rent of the premises from their mother's death to the partition, as it was said that this receipt was no ratification of the covenant, and that the rent was assets, not of their mother's, but of their father's estate, and as against her executor the plaintiff could not recover because the covenant was that of a married woman. 1 It may however be observed, that in tracing the course of legislation in the different States, they will be found greatly in advance of English legislation on the subject. The old feudal doctrines, which to prevent the alienation of real estate cumbered it with restraints, gave place, when a new state of society demanded that the right of alienation should be less fet- tered, to an immunity of real estate which protected the purchaser at the expense of the creditor, and the legislative provisions which until recently existed were inad- equate to regulate the era, p. 42. 8 The exceptions to this proposition are perhaps peculiar ones, as where a purchaser makes a chancing bargain and relies on the covenants he is to receive for his protec- tion. Sugden says, " If a purchaser be- fore executing the articles has notice of an incumbrance which is contingent, and it is by the articles agreed that the vendor shall covenant against incumbrances, the pur- chaser has entered into them with his eyes open, has chosen his own remedy, and equity will not assist him ; and he can- not therefore detain any part of the pur- § 321.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. § 320. But when the contract has been consummated by de- livery of the deed, a different rule comes in. 1 Any inconsistencies between the terms of the contract and the terms of the deed are then, as a rule, to be governed solely by the latter, into which the former are merged, 2 and the purchaser's only right to relief from defects or incumbrances, whether at law or in equity, depends, in the absence of fraud, solely upon the covenants for title which he has received. 3 § 321. The connection therefore between the covenants for title and the purchaser's right to relief is, on both sides of the Atlantic, a necessary and intimate one. 4 This has been settled by a series of decisions from an early day. In the first case which Coke reports, it was held that if one seised in fee convey without war- ranty, " the title papers pass to the grantee, because he has to defend the land at his peril." 5 The leading authority, however, is Maynard's case, 6 where Lord Nottingham said, " He that purchases lands without any covenants or warranties against prior titles, if the lands be afterwards evicted by an eigne title can never exhibit a bill in equity to have his purchase money again upon that account; possibly there may be equity to stop the payment of such purchase money as is behind, but never to recover what is paid ; for the chancery mends no man's bargain, though it sometimes mends his assurance." 7 But even this suggested right of the purchaser to chase money." Sugd. on Vend. (14th ed.) and incidental covenants are not merged p. 549. Vane v. Lord Barnard, Gilbert's in the deed. Colvin v. Schell, 1 Grant, Eq. R. 5 (supra, p. 87, n. 1), which is the (Pa. ) 226 ; Cox v. Henry, 32 Pa. 20 ; Carr authority cited, was not strictly a case of v. Roach, 2 Duer, (N. Y. ) 25. vendor and purchaser ; it arose under a 3 Gibson v. Richart, 83 Ind. 313 ; Fritz marriage settlement. v. McGill, 31 Minn. 536. 1 The distinction is a familiar one, and 4 Except in Pennsylvania, where, as there are many cases in which equity would will be hereafter shown, even after the ex- have refused to decree a specific perform- ecution of the deed, the contract is still ance of the contract, yet which, being ex- executory as to such part of the purchase ecuted, it will refuse to disturb. Dart on money as is unpaid, and the absence or Vendors (oth ed. ), 734 ; Story's Eq. Jur. presence of covenants which include the §§ 206, 693. defect is less material. 2 Howes v. Barker, 3 Johns. (N. Y. ) 6 Buckhurst's case, 1 Rep. 1 ; Redwine 506 ; Houghtaling v. Lewis, 10 id. 297 ; v. Brown, 10 Ga. 311 ; Hodges v. Saunders, Griffith v. Keinpshall, 1 Clark's Ch. (X.Y.) 17 Pick. (Mass.) 475. 571 ; Bull v. Willard, 9 Barb. S. C. (N.Y.) 6 2 Freem. 1 ; s. c. Rep. temp. Finch, 642 ; Seitzinger v. Weaver, 1 Rawle, (Pa.) 288 (a. d. 1676), also found in Appendix 377 ; Ludwick v. Huntzinger, 5 Watts & to 3 Swanst. 651, 653, nom. Maynard v. Serg. (Pa.) 51 ; Shontz v. Brown, 27 Pa. Moseley. 131; Coleman v. Hart, 25 Ind. 256. Ex- 7 This was after a reargument. On the cept in some cases, when certain collateral first hearing of the case, the Chancellor 535 321.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV. detain the purchase money has long since been denied, and it is one of the most settled doctrines of the law that a purchaser who has received no covenants which cover the defect or incum- brance can neither detain the purchase money nor recover it back if already paid. Unless there has been fraud or mistake, he is absolutely without relief against his vendor, either at law or in equity. 1 said, "Shall the loss fall upon the defend- ant when he hath sold without any cov- enants or warrantees, and without any other conditions than what are performed ? Caveat emptor is a very needless advice, if the Chancery can establish another rule instead of it by declaring that equity must suffer no man to have an ill bargain." 3 Swanst. 653. 1 Urmston v. Pate (1794), reported in 4 Cruise, 394 (4th ed.), and Sugden on Vendors, cited by Lord Loughborough in Wakeman v. Duchess of Rutland, 3 Ves. 235 ; Craig v. Hopkins, 2 Coll. of Decis. 517 ; Co. Litt. 384 a, note ; Thomas v. Powell, 2 Cox's Ch. 394 ; Bree v. Holbech, Doug. 655. (This was a strong case. An administrator with the will annexed found a mortgage among the papers of his testa- tor, and assigned it for full value, cove- nanting that neither the testator nor him- self had done any act to incumber the mortgaged estate. The mortgage turned out to have been forged (but not by the testator); but as there was no evidence that the administrator knew of the for- gery, Lord Mansfield held that the pur- chaser could not recover back what he had paid. The administrator " did not cove- nant for the goodness of the title, but only that neither he nor the testator had in- cumbered the estate. It was incumbent on the plaintiff to look to the goodness of it." This case, though recognized as correct in this application, must not be extended beyond it. See Price v. Neale, 3 Burr. 1355; Cripps v. Read, 6 Term, 606 ; Jones v. Ryde, 5 Taunt. 488 ; Smith v. Mer- cer, 6 id. 76 ; Young v. Adams, 6 Mass. 182 ; U. S. Bank v. Bank of Georgia, 10 Wheat. (S. C. U. S.) 433.) Johnson v. Johnson, 3 Bos. & Pull. 162 ; Corbitt v. Dawkins, 54 Ala. 282 ; Alexander v. Mc- Auley, 22 Ark. 553 ; Peabody v. Phelps, 536 9 Cal. 213; Reese v. Gordon, 19 id. 147 ; Hastings v. O'Donnell, 40 id. 198 ; Mc- Donald v. Beall, 55 Ga. 288 ; Leland v. Isenbeck, 1 Idaho, (n. s. ) 471; Doyle v. Knapp, 3 Scam. (111.) 334 ; Condrey v. West, 11 111. 146 ; Niles v. Harmon, 80 id. 401 ; Laughery v. McLean, 14 Ind. 108 ; Small v. Reeves, id. 164; Johnson v. Houghton, 19 id. 361 ; Starkey v. Neese, 30 id. 224 ; Brandt v. Foster, 5 Clarke, (Io.) 293 ; Allen v. Pegram, 16 Io. 172 ; Wightman v. Spofford, 56 id. 145 ; Butler v. Miller, 15 B. Mon. (Ky.)627 ; Cannon v. White, 16 La. An. 89; Soperv. Stevens, 14 Me. 133 ; Butman v. Hussey, 30 id. 266 ; Middlekauff v. Barrick, 4 Gill, (Md.) 300 ; Falconer v. Clark, 3 Md. Ch. Dec. 151 (s. c, 7 Md. 178) ; Harris v. Morris, 4 Md. Ch. Dec. 530 ; Earle v. De Witt, 6 Allen, (Mass. ) 526 ; Williamson v. Ra- ney, 1 Freem. Ch. (Miss.) 114 ; Allen v. Hopson, id. 276 ; Earle v. Earle, Spencer, (N. J. ) 363 ; Frost v. Raymond, 2 Caines, (N. Y.) 192 ; Abbott v. Allen, 2 Johns. Ch. (N. Y.) 519 ; Governeur v. Elmen- dorf, 5 id. 79 ; Carr v. Roach, 2 Duer, (N. Y.) 20 ; Burwell v. Jackson, 5 Seld. (N.'Y.) 535 ; Whittemore v. Farrington, 76 N. Y. 452 ; Nance v. Elliott, 3 Ired. Eq. (1ST. C.) 408 ; Miles v. Williamson, 24 Pa. 142 ; Maney v. Porter, 3 Humph. (Tenn.) 347; Lowry v. Brown, 1 Cold. (Tenn.) 457 ; Prigmore v. Sheldon, 9 Tenn. 563; Beale v. Sieveley, 8 Leigh, (Va.) 658 ; Commonwealth v. McClanachan, 4 Rand. (Va.) 482; Sutton v. Sutton, 7 Grat. (Va.) 238. "In the ordinary case of a sale of land," said Mason, J., in Piatt v. Gilchrist, 3 Sandf. S. C. (N. Y.) 118, "the possi- bility that the title may fail is a consid- eration that enters into the views of both purchaser and seller. If the purchaser does not wish to assume the risk of the § 322.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. § 322. But as fraud vitiates all it touches, the exception is most important. Where there has been fraudulent concealment or misrepresentation, the fact that the contract has been executed by the delivery of the deed does not deprive the purchaser of his right to relief, nor is it material whether the covenants for title do or do not extend to the particular defect or incumbrance. 1 But while this general principle is well settled, some difficulty has been experienced in modern times as to what degree of con- cealment or misrepresentation on the part of the vendor will amount to fraud, and in a series of important cases in England the subject has received elaborate examination. The leading case in which the doctrine was distinctly laid down may be said to be Edwards v. McLeay, 2 where the purchaser hav- ing discovered, after the receipt of his deed, that the ground of title, he protects himself by covenants. If he assumes the risk, he accepts the deed without covenants, and receives his equivalent in the diminution of the price. When the very thing occurs the hazard of which he has taken on himself, and for which he has received an equivalent, it would be anything but equitable to re- strain the collection of the unpaid pur- chase money. It would be throwing upon the seller the very loss which he had de- clined to assume, and be making him, contrary to the intention of the parties, the guarantor of the title, at least to the extent of the sum due." And see this case infra, Ch. XV. There is a single case, said to have been decided by Lord Nottingham, which has laid down a different doctrine. In an anonymous case, in 2 Cas. in Ch. 19, the Chancellor is said to have relieved from payment of the purchase money, when the purchaser was evicted by a title to which his covenants did not extend. But the case was not only not "taken down by the reporter (nor included in the valuable MS. cases preserved by the Chancellor himself, see Appendix to 3 Swanston), but he thus questions its accuracy and soundness : — "1. If declaration, at the time of the purchase treated on, that there was an agreement to extend against all incum- brances, not only special, it could not have been admitted. " 2. The affirmative covenant is nega- tive to what is not affirmed, and all one as if expressly declared that the vendor was not to warrant but against himself, and the vendee to pay, because absolute with- out condition. ' ' 3. Quaire. If this may not be made use of to a general inconvenience, if the vendee, having all the writings and pur- chase, is weary of the bargain, or in other respects sets up a title to a stranger by collusion ? " Nota. In many cases it may easily be done," etc. " If," says Sugden, " this case were law, the consequences would be serious, for what vendor would permit part of the purchase money to remain on mortgage of the estate, if he were liable to lose it, supposing the estate to be recovered by a person against whose acts he had not cov- enanted ? " Sugd. on Vend. (14th ed.) p. 552. 1 Diggs v. Kirby, 40 Ark. 420. And the refusal of the vendor to give covenants for title will not affect the right of re- covery. "If the purchaser consents to waive the usual covenants, he is none the less entitled to the exercise of good faith and honesty on the part of the vendor." Haight v. Hayt, 19 N. Y. 474. * Coop. 308. 537 § 322.] the purchaser's right at law [chap. XIV. his stables and also of a driving-way leading up to the house were part of a common, filed a bill to rescind the contract and recover back the purchase money, with interest and all the sums spent in repairs, and proved that the defendants were aware of these facts at the time of the contract, that they were not disclosed by the abstract or otherwise, and that the vendors represented themselves to be seised in fee of the whole estate. Sir W. Grant, M. R, in delivering the opinion, said : " This is a bill of rather an unusual description. It is brought by the purchaser of an estate, who has had a conveyance made to him, for the purpose of setting aside the sale and getting back his purchase money on the ground of an alleged misrepresentation with regard to the title of a part of such estate. It certainly cannot be contended that by the law of this country the insufficiency of a title, even when producing actual eviction, necessarily furnishes a ground for claiming restitution of the purchase money. By the civil law it was otherwise. By our law a vendor is in general liable only to the extent of his cove- nants ; but it has never been laid down that on the subject of title there can be no such misrepresentation as will give the purchaser a right to claim a relief to which the covenants do not extend. 1 . . . "Whether it would be a fraud to offer, as good, a title which the vendor knows to be defective in point of law, it is not necessary to determine, but if he knows and conceals a fact material to the validity of the title, I am not aware of any principle on which relief can be refused to the purchaser. . . . The only other objec- tion which the defendants make to the relief sought by the bill is that the purchaser is premature in his application, inasmuch as he has not yet been evicted and may perhaps never be evicted. But I apprehend that a court of equity has quite ground enough to act upon, and that it ought now to relieve the plaintiff from the consequences of the fraud practised upon him." Upon appeal from this decision, 2 Lord Eldon said that the case resolved itself 1 The Master of the Rolls went onto trator knew that the mortgage which he as- say : " In the case of Urmston v. Pate, signed was a forgery. Lord Mansfield says, 4 Cruise on Real Prop. 394, there was no 'if he had discovered the forgery, and had ingredient of fraud. Both parties misap- then got rid of the deed as a true security, prehended the law. The vendor had no the case would have been very different.' knowledge of any fact which he withheld And the purchaser had leave to amend his from the purchaser. In the case of Bree ;;. replication if, upon inquiry, the case would Holbech, Doug. 654 [supra, p. 536, n. 1], support a charge of fraud." it did not at all appear that the adminis- 2 2 Svvanst. 308. 538 322.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. into the question whether the representation made to the plaintiff was not, in the sense in which we use the term, fraudulent. He was not apprised of any such decision, 1 but he agreed with the Master of the Rolls, that if one party make a representation which he knows to be false, but the falsehood of which the other party has no means of knowing, a court of equity will rescind the con- tract ; and the decree was therefore affirmed. 2 This was followed by the great case of Small v. Attwood, 3 origi- 1 Lord Devon said of this remark, in the great case of Small v. Attwood, when in the House of Lords (see infra): "The expression of Lord Eldon, that he was not apprised of any such decision, is not immaterial. I do not refer to it as im- plying any doubt whatever of the juris- diction, but when a judge of Lord Eldon's experience states himself not to be aware of any case in which that jurisdiction had been practically applied, we may find an additional reason for the principle that nothing but the most clear and decisive proof of fraudulent representations, made under such circumstances as show that the contract was based upon them — such a case indeed as Lord Eldon in his expei'i- ence had not known to occur — will justify the interference of a court of equity." 2 Though with some modification as to its extent, "as," said the Chancellor, "it seems to have gone too far on the subject of repairs and improvements. Its terms must be made conformable to the terms of the bill ; striking out the word ' improve- ments,' and leaving the word ' repairs.' I give the plaintiff all that he asked by his bill, and I cannot give him less." In Sugden's " Law of Property as ad- ministered in the House of Lords," p. 653, he says, in speaking of this case : " Lord Eldon's statement of what he considered to be the principle of the decree cannot alter the facts of the case, and his own previous observation shows that he did not consider it a case of moral fraud, but one where, in the sense in which a court of equity uses the term, the representation was fraudulent. And such appears to be the real nature of the case. . . . The evi- dence of knowledge was, I think, quite sufficient to support the decree ; but it also proved that the sellers bona fide be- lieved themselves to have a good title after so long a possession ; and indeed the title was one which it was highly improbable would ever be impeached. Sir W. Grant's position was, that if a vendor knows and conceals a fact material to the validity of the title, relief is to be afforded to th6 purchaser. That is the true rule. If the title is fairly before the purchaser, he must rely on his covenants. This rule does not require any representation. If the seller knows a material fact and con- ceals it, that is, does not divulge it, he is responsible ; his motive is unimportant ; he is bound to give the purchaser the means of forming a judgment on the title, and is not to decide what he deems it ne- cessary to disclose. Sir W. Grant did not, like the bill, put the case as one of gross fraud, although evidently, in the sense re- ferred to by Lord Eldon, he declared the contract and conveyance to be fraudulent and void." This case of Edwards v. Mc- Leay has been constantly cited as of the highest authority. Attwood v. Small, infra ; Gibson v. D'Este, 2 Younge & Coll. (n. s.) 542 ; Wilde v. Gibson, 1 CI. & Fin. (n. s.) 605 (where Lord Campbell said there was no case of higher authority in the books); Young v. Harris, 2 Ala. Ill ; Van Lew v. Parr, 2 Rich. Eq. (S. C.) 338 ; Gans v. Renshaw, 2 Pa. 34. 8 In its day, this case was, in the House of Lords, said to be "without any example within the experience of the oldest man in the profession, in point of length and of complexity of detail, or of the mass of matter with which it stands incumbered, and it is hardly exceeded by any cause of which there is any report in respect of the importance of the stake at issue." 539 § 322.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV. nally decided on the equity side of the Court of Exchequer in 1882, 1 and on appeal in the House of Lords in 1838. 2 There was little difference in opinion as to the rule of law, either in the Ex- chequer or in the House of Lords, although the decree in the for- mer, rescinding the contract, was reversed in the latter, the facts not being thought sufficient to support the charge of fraud. 3 Lord Brougham, in delivering his judgment, said : " If two parties enter into a contract, and if one of them, for the purpose of inducing the other to contract with him, shall state that which is not true in point of fact, which he knew at the time that he stated it not to be true, and if upon that statement of what is not true, and what is known by the party making it to be false, the contract is entered into by the other party, then generally speaking, and unless there is more than that in the case, there will be at law an action open to the party entering into such contract, an action of damages grounded upon the deceit, and there will be a relief in equity to the same party to escape from the contract which he has so been inveigled into making by the false representation of The amount of the purchase money was large, the costs and counsel fees were pro- portionate, and the hearing, first and last, occupied a greater number of hours than did the trial of Warren Hastings. 1 1 Younge, 461. 2 6 CI. & Fin. 232, 531. 3 The general features of the case were these : Attwood was the owner of certain iron works, and Small and others repre- sented the British Iron Company. Upon a proposition of sale being made to the latter, Taylor, an agent and large share- holder, viewed the works while Attwood was there, and upon his report three of the directors wrote to Attwood proposing to buy the property for £600,000, paya- ble by instalments, upon the understand- ing that every facility should be given to Taylor to ascertain the correctness of the representations that had been made to him. These directors subsequently exam- ined for themselves, and then reported to the company that they had concluded the treaty of purchase after the nature and capacity of the works had been fully in- vestigated. Soon after, Taylor went there to reside as manager, and sent favorable reports to the company. Some negotia- 540 tions ensued respecting the completion of the title, pending which the price of iron fell, and the company then proposed as a new term that a deputation should go to the works to examine whether certain data given by Attwood to Taylor were correct. The visit was paid ; and after communication with Taylor — who stated that although the calculations submitted to him by Attwood were too close to estimate profits upon with safety, still that they proved the data given by Attwood to be more favorable to the buyer than the seller — the directors reported that Attwood had redeemed his pledge, and the contract was executed with some abatement in the price. Six months after, the company filed a bill to rescind the contract on the ground of false statements made in papers submitted to Taylor, misrepresentations to the deputation, and concealment of faults. All these were denied by the answer, which declared that the representations were upon certain assumptions, and were general averages. The plaintiffs then amended their bill by striking out Taylor as a plaintiff and making him defendant, who in his answer denied all fraud and collusion with Attwood. § 322.] TO DETATN PURCHASE MONEY, ETC. [CHAP. XIV. the other contracting party. In one case, it is not necessary that all those three circumstances should concur in order to ground an action for damages at law, or a claim for relief in a court of equity ; I mean in the case of warranty given, in which the party undertakes that it shall in point of fact be so, and in which case, therefore, no question can be raised upon the scienter, upon the fraud or wilful misrepresentation. In this case that is clearly out of the question ; therefore all these circumstances must com- bine : first, that the representation was contrary to the fact ; secondly, that the party making it knew it to be contrary to the fact; 1 and thirdly and chiefly, in my view of the case, that it 1 This proposition, though correct as stated in this application, must not he taken too hroadly, or there will appear to be a conflict of authority which does not really exist. There can he no doubt that in most cases in which an action in the nature of a writ of deceit would lie at law, equity will lend its juris- diction to rescind the contract, but the converse by no means universally holds, for the heads of fraud and mistake are, both in courts of law and equity, as dis- tinct as those of tort and contract. An innocent misrepresentation by mistake can never be made the ground of a personal action for fraud (which was cited approv- ingly in Fairbault v. Sater, 13 Minn. 231, and Brooks v. Hamilton, 15 id. 33), how- ever it may operate upon the contract it- self. It may annul the contract, on the ground that "a substantial error between the parties concerning the subject matter of the contract destroys the consent ne- cessary to its validity." 2 Kent's Comm. 471. And this principle has been fre- quently applied in equity in the rescis- sion of executed contracts for the sale of real estate. 1 Story's Eq. § 142 ; Hitch- cock v. Giddings, 4 Price, 135 ; Mead v. Johnson, 3 Conn. 597 ; Smith v. Mitchell, 6 Ga. 458 ; Bradley v. Chase, 22 Me. 511 ; Davis v. Heard, 44 Miss. 51 ; Dale v. Rosevelt, 5 Johns. Ch. (N. Y.) 182; Champlin v. Laj'tin, 6 Paige, (N. Y.) 197 ; Annstead v. Hundley, 7 Grat. (Va. ) 64 (see Sutton v. Sutton, id. 239); Daniel v. Mitchell, 1 Story, (C. C. U. S.) 172 ; Mason v. Crosby, 1 Woodb. & Min. (C. C. U. S.) 342. After some difference of opinion be- tween the Courts of Exchequer and Queen's Bench, it is now decisively set- tled in England that in order to support an action on the case for fraudulent rep- resentations it is not sufficient to show that a party made statements which he did not know to be true, and which were in fact false — there must be fraud as dis- tinguished from mere mistake. Collins v. Evans, 5 Q. B. 804 ; Barley v. Walford, 9 id. 197 ; Moens v. Hey worth, 10 Mees. 6 Welsb. 147 ; Taylor v. Ashton, 11 id. 401 ; Ormrod v. Huth, 14 id. 651 ; Smith v. Chadwick, L. R. 20 Ch. Div. 27, per Jessel, M. R. And the weight of Amer- ican authority is to the same effect. Ham- matt v. Emerson, 27 Me. 309 ; Tryon v. Whitmarsh, 1 Met. (Mass.) 1 ; Lord v. Colley, 6 N. H. 99 ; Young v. Covell, 8 Johns. (N. Y.) 25 ; Allen v. Addington, 7 Wend. (N. Y.) 10 ; s. c. 11 id. 375 ; Weeks v. Burton, 7 Verm. 67 ; Ewins v. Calhoun, id. 79 ; Smith v. Babcock, 2 Woodb. & Min. (C. C. IT. S.) 246 ; Rus- sell v. Clark, 7 Cranch, (S. C. U. S.) 69 ; Lord v. Goddard, 13 How. (S. C. U. S.) 211. Without, however, the utterance of an actual falsehood, a party may still be lia- ble in an action for deceit ; as where he states material facts as of his own knowl- edge (and not as mere matter of opinion or general assertion) about which he has no knowledge whatever ; as this direct wilful statement in ignorance of the truth is the same as the statement of a known false- hood, and will constitute a scienter. Kerr on Fraud, 19 ; Munroe v. Pritchett, 16 541 322.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV. should be this false representation which gave rise to the con- tracting of the other party." 1 Ala. 785 ; Waters v. Mattingley, 1 Bibb, ( Ky. ) 244 ; Thomas v. McCann, 4 B. Mon. (Ky. ) 601 ; Hammatt v. Emerson, 27 Me. 309 ; Hazard v. Irwin, 18 Pick. (Mass.) 96; Lobdell v. Baker, 1 Met. (Mass.) 193 ; s. c. 3 id. 469 ; Stone v. Denny, 4 id. 158 ; Medbury v. Watson, 6 id. 246 ; Gough v. St. John, 16 Wend. (N. Y.) 646 ; Cabot v. Christie, 42 Verm. 121 ; M'Ferran v. Taylor, 3 Cranch, (S. C. U. S.) 281. And the same circumstances will, of course, induce equity to rescind the contract. Lanier v. Hill, 25 Ala. 558 ; Lockridge v. Foster, 4 Scam. (111.) 570 ; Shackelford v. Handley, 1 Marsh. (Ky.) 500 ; Joice v. Taylor, 6 Gill & Johns. (Md.) 58 ; Rimer v. Dugan, 39 Miss. 482 ; Turnbull v. Gadsden, 2 Strob. Eq. (S. C.) 14 ; Smith v. Babcock, 2 Woodb. & Min. (C. C. U. S.) 246 ; Tuthill v. Babcock, id. 298 ; Smith v. Richards, 13 Pet. (S. C. U. S. ) 26. 1 This has been often recognized by American authority. Foster v. Kennedy, 38 Ala. 362 ; Board of Commissioners v. Younger, 29 Cal. 177 ; Crittenden v. Craig, 2 Bibb, (Ky.) 474; Shackelford v. Handley, 1 Marsh. (Ky.) 500; Win- ston v. Gwathmey, 8 B. Mon. (Ky.) 23 ; Brown v. Manning, 3 Minn. 36 ; Parham v. Randolph, 4 How. (Miss.) 435; Eng- lish v. Benedict, 25 Miss. 167 ; Oswald v. McGehee, 28 id. 340 ; Davis v. Heard, 44 id. 54 ; Concord Bank v. Gregg, 14 N. H. 331 ; Turnbull v. Gadsden, 2 Strob. Eq. (S. C.) 14 ; Warner v. Daniels, 1 Woodb. & Min. (C. C. U. S.) 90 ; Mason v. Cros- by, id. 342 ; Tuthill v. Babcock, 2 id. 298 ; and see the remarks of Marshall, C. J., at the close of the decision in M'Ferran v. Taylor, 3 Cranch, (S. C. U. S.) 282. In the absence, however, of evidence on this point, it is presumed that a court of equity would be apt to conclude that if the misrepresentation were made, it had its effect to lead on the purchaser to com- plete the contract. Kelly v. Riley, 22 W. Va. 247. Lord Brougham added that the infer- ence he drew from the authorities was that "general fraudulent conduct signifies 542 nothing, that general dishonesty of pur- pose signifies nothing, that attempts to overreach go for nothing, that an inten- tion and design to deceive may go for nothing ; unless all this dishonesty of purpose, all this fraud, all this intention and design, can be connected with the par- ticular transaction, and not only connected with the particular transaction but must be made to be the very ground upon which this transaction took place, and must have given rise to this contract. If a mere general intention to overreach were enough, I hardly know a contract, even between persons of very strict morality, that could stand. [See the remarks of Lord Thurlow in the familiar case of Fox v. Mackreth, 2 Bro. Ch. 420, 1 Lead. Cas. in Eq., and of Lord Eldon in Turner v. Harvey, 1 Jac. Ch. 178 ; Pothier de Vente, n. 295, 334.] We generally find the case to be that there has been an attempt of the one party to overreach the other, and of the other to overreach the first, but that does not make void the contract. It must be shown that the attempt was made, and made with success, cum fructu. The party must not only have been minded to overreach, but he must actually have overreached. He must not only have given instructions to the agent to deceive, but the agent must, in the fulfilment of his directions, have made a representation ; and, moreover, the representation so made must have had the effect of deceiving the purchaser ; and, moreover, the purchaser must have trusted to that representation and not to his own acumen, not to his own perspicuity, and not to inquiries of his own. I will not say that the two might not be mixed up together — the false rep- resentation of the seller and the inquiries of the buyer — in such a way as even then to give a right to relief." These remarks are fully borne out by decisions on this side of the Atlantic. Thus in Donelson v. Weakley, 3 Yerg. (Tenn.) 178, it was held that mere state- ments by the seller of what the property would thereafter be worth afforded no ground for rescission, it being no part of § 322.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. Although the decision in this case in the court below was reversed, 1 yet, as has been already remarked, there was no the contract, and the matter being one fully within the purchaser's own calcula- tion ; and the law was held the same way in Strong v. Peters, 2 Root, (Conn.) 93 ; Tindall v. Harkiuson, 19 Ga. 448 ; Bell v. Henderson, 6 How. (Miss.) 311. So of vague general representations as to matters open to the examination of all. Foley v. Cowgill, 5 Blackf. (Ind.) 18; see Dart on Vendors (5th ed. ), 90 ; An- derson v. Burnett, 5 How. (Miss.) 165; Bell v. Henderson, supra; Anderson v. Hill, 12 Sm. & Marsh. (Miss.) 683 ; Davis v. Sims, Hill & Denio, (N. Y.) 234. It is, in fact, no more than the application of the maxim simplex commendatio non obliged. Taylor v. Fleet, 4 Barb. S. C. (N. Y.) 95. It is obvious, however, that the maxim must meet with a strict construction where the land which is the subject of the pur- chase is at a distance, and the purchaser relies wholly upon its description as given by the vendor. Bean v. Herrick, 12 Me. 262 ; Smith v. Richards, 13 Pet. (S. C. U. S. ) 26 ; Sandford v. Handy, 23 Wend. (N. Y.) 260 ; Van Epps v. Harrison, 5 Hill, (N. Y.) 63 ; Babcock v. Case, 61 Pa. 430. See Clark v. Baird, 7 Barb. S. C. (N. Y.) 65, where it was held that if the purchaser had the opportunity of ascer- taining the true boundary line and ne- glected to inform himself, he could not recover damages for a misrepresentation of that boundary by the vendor, and a sim- ilar decision was made in the recent case of Brooks v. Hamilton, 15 Minn. 26. 1 Lord Lyndhurst (whose wonderful memory and lucid statement, both in his judgment in the Exchequer and his de- fence of it in the House of Lords, are chronicled in 8 Campbell's Chancellors, 73) considered the law to be clearly set- tled that where representations with re- spect to the nature and character of the property which is to become the subject of purchase affect the value of that property, and those representations afterwards turn out to be incorrect and false to the knowl- edge of the party making them, a founda- tion is laid for maintaining an action in a court of common law to recover damages for the deceit so practised, and in a court of equity a foundation is laid for setting aside the contract which was founded upon a fraudulent basis. " I do not understand that that proposition is disputed by either of my noble and learned friends ; it was distinctly laid down and decided in the case referred to in the judgment below, and which has been referred to at your Lordships' bar ; I mean Dobell v. Stevens, 3 Barn. & Cress. 623. That was one of those ordinary cases which frequently come before the courts of common law. It was a case of the purchase of a public house ; a false representation — false to the knowl- edge of the party making it — was made by the vendor with respect to the extent of the custom as to the quantity of beer that was drawn during a certain period. The books were in the house ; it was part of the case that the purchaser might have had access to them if he thought proper ; but notwithstanding that circumstance, it being proved that the representation was false, the Court of King's Bench were of opinion that an action of damages might under such circumstances be sustained." This case, however, was more distinguish- able from Small v. Attwood than Lord Lyndhurst seemed to suppose, as the ven- dor made a definite statement which was intended to prevent the purchaser from making investigations which would have shown that statement to be false, and Do- bell v. Stevens is fully supported by Ameri- can authority. Ward v. Packard, 18 Cal. 391 ; Campbell v. Whittingham, 5 J. J. Marsh. (Ky. ) 96; Parham v. Randolph, 4 How. (Miss.) 451; Burwell v. Jackson, 5 Seld. (N. Y.) 545; see, however, and consider Griffith v. Kempshall, Clarke's Ch. R. (N. Y.) 571; Tallman v. Green, 3 Sandf. S. C. (N. Y.) 437; Hunt v. Moore, 2 Pa. 107 ; Napier v. Elam, 6 Yerg. (Tenn.) 108. The distinction between the alhgatio falsi and the siqjpressio veri would seem to be that the non-disclosure, in order to con- stitute fraud, must be of facts which the seller was under an obligation to disclose. 543 322.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV. material difference of opinion in the House of Lords as to the law which should govern it. 1 "I make no distinction," said Bayley, J., in Early v. Garrett, 9 Barn. & Cress. 928, " between an active and a passive commu- nication, for a fraudulent concealment is as bad as a wilful misrepresentation. A fraud- ulent concealment by the seller of a fact which he ought to communicate would un- doubtedly vitiate the sale." See also Pear- son v. Morgan, 2 Bro. Ch. 390. So it was said by Story, J., that "the true defini- tion of undue concealment which amounts to a fraud in the sense of a court of equity, and from which it will grant relief, is the non-disclosure of those facts and circum- stances which one party is under some legal or equitable obligation to communicate to the other." 1 Story's Eq. § 207 ; Young v. Bumpass, 1 Freem. Ch. (Miss.) 241 ; The State v. Holloway, 8 Blackf. (Ind.) 47 ; Saltonstall v. Gordon, 33 Ala. 151. The question, however, of what the vendor ought to inform the purchaser, and what he is under no such obligation to do, will sometimes be a difficult one, and as was well said in Bean v. Herrick, 12 Me. 262, " the maxim caveat emptor is a suffi- cient answer to mere silence in regard to defects open to observation, but the line which separates cases where this maxim applies from others which call for relief is not defined with precision ; each case rests upon its peculiar circumstances." The question will often depend much upon the basis of dealing between the parties. "The court, in many cases," said. Lord Eldon in Turner v. Harvey, Jacob, 178, "has been in the habit of saying that where parties deal for an estate they may put each other at arm's length, and where incumbrances are matter of record or are patent, and the purchaser views for him- self, it is apprehended that equity will not rescind on the ground of mere silence on the part of the vendor." This distinction between the allegatio and the suppressio was observed in Richardson v. Boright, 9 Verm. 368, where the incumbrance was of record ; and it was said that if the vendor had notice and used no means to prevent knowledge to the purchaser, who had the means of informing himself within his 544 power, it was no fraud — he was not bound to inform him. See also Griffith v. Kemp- shall, Clarke's Ch. (N. Y.) 576 ; Ward v. Packard, 18 Cal. 391. Of course, however, this rule will be much relaxed or entirely lose its application where any such confi- dential relation exists between the vendor and purchaser as to put them upon unequal terms; Brice v. Brice, 5 Barb. (N. Y. ) 540 ; Babcock v. Case, 61 Pa. 430 ; notes to Fox v. Mack re th, 1 Lead. Cas. in Eq. The converse of the position stated above is equally true, for as was said by Lord Eldon in the case just cited, in re- ferring to the remarks of Lord Thurlow in Fox v. Mackreth, 2 Bro. Ch. 420, " If an estate is offered for sale, and I treat for it, knowing that there is a mine under it, and the other party makes no inquiry, I am not bound to give him any infor- mation of it. [Harris v. Tyson, 24 Pa. 360. ) He acts for himself and exercises his own senses and knowledge. But a very little is sufficient to affect the appli- cation of the principle. If a single word is dropped which tends to mislead the vendor, that principle will not be allowed to operate." And, in general, it may be said that any course of dealing calculated to create a false impression on the pur- chaser will amount to a fraud ; Misner v. Granger, 4 Gilm. (111.) 69 ; Young v. Bum- pass, 1 Freem. Ch. (Miss.) 241 ; Bean v. Herrick, 12 Me. 262 ; Early v. Garrett, 9 Barn. & Cress. 928 ; as where the seller should state facts which were true in them- selves, but so expressed as to give the idea that they conveyed the whole trust, while a material fact is kept back ; Allen v. Ad- dington, 7 Wend. (N. Y.) 10, 11 ; id. 75 ; Kidney v. Stoddart, 7 Met. (Mass.) 252. 1 Sugden has remarked (Law of Prop- erty, 598), that to the rule of law, as thus qualified and explained, no exception can be taken, and adds, with great propriety, " There is no part of the jurisdiction of a court of equity which requires to be exe- cuted with more caution than that of re- scinding a contract. This we shall see powerfully exemplified in this very case of Small v. Attwood. If there be fraud, 322.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. In a subsequent case, the plaintiffs having filed a bill to compel payment of a residue of the purchase money due on a lease of the remedy is clear of difficulty. But the court ought to be quite sure of the grounds upon which it decides, for by re- scinding the contract it may do irrepara- ble damage to one party, whilst by refusing to interfere it does not deprive the other party of his remedy by an action of deceit if he really have been deceived." After an able condensation and review of the facts in the case, he continues : "I thought at one time, from its com- plicated facts, that it could hardly per- haps be cited as an authority for anything beyond the general principle ; but I felt bound to put the reader in possession of a general view of the case, and my present calm review of it has satisfied me that it is a precedent of much importance. It affords an excellent commentary on the rule of law, and exemplifies the process by which we are to arrive at a just conclu- sion. The opposite views taken of the particular evidence is not important, but the principles by which the House of Lords were guided are indeed important. Previously to this case, the instances were rare in which a purchaser, on the ground of misrepresentations prior to a written contract which was silent on that head, and after inquiry, and with means of knowledge and possession, had applied to a court of equity to rescind the contract. If the decree had remained undisturbed, followed as it was by an injunction oper- ating on the funded property into which the purchase money had been invested, no doubt many such experiments would have been made. But the decision of the Lords placed the doctrine on the right foundation. Fraud is a sufficient ground for relief, but it is not to be made out from ambigu- ous papers where the parties investigated the books and accounts and inquired for themselves, and with possession and full means of knowledge delayed for some months to apply for relief. Indeed, it is manifest that the same conclusion would have been arrived at if the application had been made at an earlier period. The dan- ger of resting upon such evidence as was produced in this case to impeach the writ- ten contract is proved by the opposite views of the very learned persons who gave judicial opinions upon the lone and effect of it ; but the Lords in eflfeel decided that where there are ample means of form- ing a judgment from written papers and correspondence, much credit is not to be attached to alleged conversations and ex- clamations, particularly if they are not distinctly charged in the bill, so as to enable the other party to meet them." In his last edition of the Vendors, he remarked : "It was not too much to expect that if, in a contract of such mag- nitude, in which of course there was pre- vious inquiry, the purchasers bought on the representation of the seller as to the cost of producing pig iron, they should have required him to bind himself by the contract to those representations, and to agree to reduce the purchase money if they proved to be incorrect. Such a sim- ple precaution would have prevented the vast litigation in that case ; but it is clear that if such a demand had been made, it would not have been acceded to, and that if it had been refused, the purchasers would have executed the contract without it." An even greater lawyer, Sir George Jessel, late Master of the Rolls, said of the class of cases of which Small v. Att- wood is a leading one: "In some obser- vations of noble lords in the House of Lords, there are remarks which I think, according to the course of modern decis- ions, are not well founded, and do not accurately state the law. As regards the rescission of a contract, there was no doubt a difference between the rules of courts of equity and the rules of courts of common law — a difference which of course has now disappeared by the operation of the Judicature Act, which makes the rules of equity prevail. According to the decisions of courts of equity, it was not necessary, in order to set aside a contract obtained by material false representation, to prove that the party who obtained it knew at the time when the representation was made that it was false. It was put in two ways, either of which was sufficient. One way 35 545 322.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV. mines, "which the defendants had entered upon and worked for three years, the defendants filed a cross-bill for relief on the of putting the case was : ' A man is not to be allowed to get a benefit from a state- ment which he now admits to be false. He is not to be allowed to say, for the purpose of civil jurisdiction, that when he made it he did not know it to be false ; he ought to have found that out before he made it.' The other way of putting it was this : ' Even assuming that moral fraud must be shown in order to set aside a contract, you have it where a man, hav- ing obtained a beneficial contract by a statement which he now knows to be false, insists upon keeping that contract. To do so is a moral delinquency ; no man ought to seek to take advantage of his own false statements.' The rule in equity was settled, and it does not matter on which of the two grounds it was rested. As re- gards the rule of common law, there is no doubt it was not quite so wide. There were, indeed, cases in which, even at com- mon law, a contract could be rescinded for misrepresentation, although it could not be shown that the person making it knew the representation to be 'false. They are vari- ously stated, but I think, according to the later decisions, the statement must have been made recklessly and without care, whether it was true or false, and not with the belief that it was true. But, as I have said, the doctrine in equity was settled be- yond controversy, and it is enough to re- fer to the judgment of Lord Cairns in the Reese River Silver Mining Co. v. Smith, L. R. 4 H. L. 64, in which he lays it down in the way which I have stated. "There is another proposition of law of very great importance which I think it is necessary for me to state. ... If a man is induced to enter into a contract by a false representation, it is not a sufficient answer to him to say, ' If you had used due dili- gence you would have found out that the statement was untrue. You had the means afforded you of discovering its falsity, and did not choose to avail yourself of them.' I take it to be a settled doctrine of equity, not only as regards specific performance but also as regards rescission, that this is not an answer unless there is such delay 546 as constitutes a defence under the statute of limitations. That, of course, is quite a different thing. . . . Nothing can be plainer, I take it, on the authorities in equity, than that the effect of false repre- sentation is not got rid of on the ground that the person to whom it was made has been guilty of negligence. One of the most familiar instances in modern times is where men issue a prospectus in which they make false statements of the contracts made before the formation of a company, and then say that the contracts them- selves may be inspected at the offices of the solicitors. It has always been held that those who accepted those false state- ments as true were not deprived of their remedy merely because they neglected to go and look at the contracts. Another instance with which we are familiar is where a vendor makes a false statement as to the contents of a lease, as, for instance, that it contains no covenant preventing the carrying on of the trade which the purchaser is known by the vendor to be desirous of carrying on upon the property. Although the lease itself might be pro- duced at the sale, or might have been open to the inspection of the purchaser long previously to the sale, it has been repeat- edly held that the vendor cannot be al- lowed to say, ' You were not entitled to give credit to my statement. ' It is not suf- ficient, therefore, to say that the purchaser had the opportunity of investigating the real state of the case, but did not avail himself of that opportunity." Referring to the judgments delivered in Small v. Attwood, he said (and every one's experience in similar cases confirms it), " Of course where you have five lords giv- ing independent reasons, it is yery diffi- cult to ascertain with accuracy the ground upon which the House of Lords decided, but I think that in all such cases you must only look at the judgments of the majority who decided the case, for the reasons to be found in their judgments must be either wholly or to some extent the reasons which guided the House of Lords in coming to their conclusion." § 322.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. ground of misrepresentation and fraud, which was dismissed in the Irish Chancery, and upon appeal taken to the House of Lords the decree was affirmed, 1 the Chancellor observing, that in a case And then, referring with succinct ac- curacy to the judgments delivered, he added, " In no way, as it appears to me, does the decision, or any of the grounds of decision, in Attwood v. Small, 6 CI. & Fin. 232, support the proposition that it is a good defence to an action for rescission of a contract on the ground of fraud that the man who comes to set aside the contract inquired to a certain extent, but did it carelessly and inefficiently, and would, if he had used reasonable diligence, have dis- covered the fraud." Redgrave v. Hurd, L. K, 20 Ch. Div. 1. And in the next case in the same volume (Smith v. Chad- wick, id. 27) the same learned judge en- forced this and other parts of the same doctrine with his accustomed knowledge of the subject matter and terse force. In the very recent case of Newbigging v. Adam, L. R. 34 Ch. Div. 582, where the result of the facts was stated to be that the contract was made under a substan- tial misstatement, though not made fraud- ulently, and the question was as to the extent of indemnity to which the plaintiff was entitled upon the rescission of the con- tract, Lord Justice Bowen, in delivering his opinion, said : " It is said that the injured party is entitled to be replaced in statu quo. It seems to me that when you are dealing with innocent misrepresentation, you must understand that proposition, that he is to be replaced in statu quo, with this limitation — that he is not to be replaced in exactly the same position in all respects, otherwise he would be entitled to recover damages, but he is to be replaced in his position so far as regards the rights and obligations which have been created by the contract into which he has been in- duced to enter. That seems to me to be the true doctrine, and I think it is put in the neatest way in Redgrave v. Hurd." And after citing the foregoing part of that decision, he added, " With great respect for the shadow and memory of that great name, I cannot help saying that this is not a perfect exposition of what the com- mon law was, but, so far as the rule of equity goes, I must assume that the Mas- ter of the Rolls spoke with full knowledge of the equity authorities, and he treats the relief as being the giving back by the party who made the misrepresentation of the advantages he obtained by the contract." 1 Vigers v. Pike, 2 Dru. & War. 1 ; 8 CI. & Fin. 562. In a later case, Gib- son v. D'Este, 2 You. & Col. (n. s.), 542, Dom. Proc. 1 CI. & Fin. (n. s.) 605, nom. Wilde v. Gibson, the question was wheth- er a purchaser was entitled to rescind an executed contract because of the omis- sion to mention the existence of a right of way over part of the grounds in front of the house ; though no charge of personal fraud was made against the defendant, nor was there any evidence that she knew of the deed creating the right of way, or of the payments of the rent for the same, ex- cept that they appeared in the accounts rendered to her by her agent, which pay- ments did not so specifically appear in the accounts as to convey definite information to the owner as to the ground of their pay- ment. The Vice-Chancellor decreed that the sale should be rescinded with costs, being of opinion that the contract and its completion took place under concealment from the purchaser, and substantially un- der misrepresentation to him of material facts within the knowledge of the defend- ant or her agent, whose knowledge for the present purpose was to be held equiva- lent to her knowledge, but not within the knowledge of the plaintiff, he being with- out the means of knowing the true state of these facts. This decree, however, was reversed in the House of Lords (1 CI. & Fin. (n. s.) 605), principally, it was said, on the ground that the doctrine of constructive notice to the defendant, from the knowledge of her so- licitor, could not be applied to the case. " The effect of constructive notice," said Lord Cottenham, in delivering his judg- ment, "in cases where it is applicable, as in contests between equities of in- nocent parties, is sufficiently severe, and 547 322.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV. depending upon alleged misrepresentations as to the nature and value of the thing purchased, the defendant could not adduce is only resorted to from the necessity of rinding some ground for giving prefer- ence between equities otherwise equal ; but this is the first time I ever knew it applied in support of an imputation of di- rect personal fraud and misrepresentation. The two things cannot exist together — there can be no direct personal fraud with- out intention, and there can be no inten- tion without knowledge of the fact con- cealed or misrepresented ; and if there be knowledge, the case of constructive notice cannot arise ; it would be absorbed in the proof of knowledge." He further said that the decree could not be supported on the authority of Edwards v. McLeay (supra, p. 537), "for in that case there was knowledge in the vendor and a false representation, both of which are wanting in the present case. A case much more in point is that of Legge v. Croker, 1 Ball & Beat. 506, in which the lessor had as- sured the lessee that there was no right of way over the ground ; that thei'e had been formerly, but that it had been legally stopped by a grand jury presentment forty years before. It turned out that there was a footway, the presentment applying only to a carriage-way, and the lessee was convicted for obstructing it, whereupon he filed his bill to be relieved from the lease ; but Lord Manners dismissed his bill, say- ing, ' If there were a wilful misrepresenta- tion, the plaintiff might be entitled to relief, but the lessor conceived himself entitled in point of law in asserting that there existed no right of way ; it cannot be called a misrepresentation.' That was a much stronger case against the lessor than the present is against the vendor." With this opinion Lord Brougham entirely concurred, and Lord Campbell thought it was necessary to observe strictly the dif- ference between the rules which apply to a contract still executory, and one actu- ally executed. " If there be in any way whatever," said he, "misrepresentation or concealment, which is material to the pur- chaser, a court of equity will not compel him to complete the purchase ; but where the conveyance has been executed, I ap- 548 prehend that a court of equity will set aside the conveyance only on the ground of actual fraud. And there would be no safety for the transactions of mankind, if upon a discovery being made, at any distance of time, of a material fact not disclosed to the purchaser, of which the vendor had merely constructive notice, a conveyance which had been executed could be set aside." He entirely dissented from the position that an action of de- ceit could be maintained without positive fraud, and said that there was no evidence that the solicitor of the vendor received any knowledge of the deed in the course of his agency. "The knowledge, then, amounts to nothing. He had no knowl- edge which would show that he was guilty of a fraudulent misrepresentation." But this decision seems to have been very gen- erally disapproved by the profession. The strictures of Sugden (Law of Property, 637) upon the reversal of the decree of the Vice-Chancellor are very severe, and in the course of them he says : "It is also worthy of notice, and seems to have es- caped all attention, that the defendant covenanted that notwithstanding any act done by herself or her mother, the former owner, she was seised of (all and singular the lands, hereditaments, mansion-house, and premises conveyed, of a perfect and indefeasible estate of inheritance in fee simple in possession, without any manner of condition, qualification, restriction, mat- ter, or thing whatsoever, expressed or im- plied, and which could revoke, determine, abridge, qualify, alter, charge, incumbei", or prejudicially affect the same in any manner aforesaid), with the other usual covenants following. Now, can a more distinct representation of a seisin in fee, not controlled by any deed executed by the mother of the vendor, be framed?" But it is probable that instead of this fact having escaped the attention of the able counsel in this carefully argued case, it was not deemed a proper subject of atten- tion, as covenants for title are not repre- sentations, in the sense in which that word is used in this connection. Dart fully 523.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIY. more conclusive evidence or raise a more effectual bar to the plaintiff's case than by showing that the plaintiff was, from the beginning, cognizant of all the matters complained of, or, after full information concerning them, continued to deal with the property, and even to exhaust it in the enjoyment, as by working mines. 1 § 323. The exception recognized by this class of cases, how- ever, seems to be the only one to the well-settled rule that the purchaser's right to relief, after the execution of his deed, de- pends solely on the covenants for title which it contains, 2 and hence the question arises, how far the purchaser is, either at law or in equity, allowed to detain the unpaid purchase money, or recover it back if already paid, where there is a defect or incum- brance which is covered by the covenants for title which he has received ; in other words, as in the absence of covenants the pur- chaser can have no relief as to the purchase money, how far the presence of covenants entitles him to relief. The cases will naturally be found more numerous in this country than in England. The almost universal practice there of limiting shares Sugden's general disapprobation of the decision in the Lords (Vendors, 734), and Kerr says of it, " Though it was the decision of the highest tribunal, it cannot be said to be founded on sound principles." Kerr on Fraud, 15. The foregoing cases in the House of Lords have been referred to at some length, both on account of their intrinsic importance as decisions in the court of last resort in England, and because they show, as conveniently as any other class of cases, the principles by which the re- scission of executed contracts are to be governed in cases of concealment or mis- representation. It will have been per- ceived that the difficulty of the cases consists not so much in the principles themselves as in their application. 1 Colby v. Gadsden, 34 Beav. 416, is to the same effect, and see accord. Pintard v. Martin, 1 Sm. & Marsh. Ch. (Miss.) 126 ; 1 Story's Eq. § 203 a ; Tindall v. Harkin- son, 19 Ga. 448 ; Cunningham v. Fithian, 2 Gilm. (111.) 650 ; Glasscock v. Minor, 11 Mo. 655; Masson v. Bovet, 1 Denio, (N.Y.) 69 ; Lockridge v. Foster, 4 Scam. (111.) 570. Length of time, however, will obviously be no bar if the plaintiff has acted promptly upon the discovery of the fraud. McLean v. Barton, Harr. Ch. (Del.) 379; Concord Bank v. Gregg, 14 N. H. 331 . In the much litigated case in New York of Whitney v. Allaire, 4 Denio, 554, 1 Comst. 310, it was held that although the purchaser would not be suffered to rescind the contract, if after the discovery of fraudulent repre- sentations as to its territorial extent he had gone on to affirm it, yet that such af- firmance of the contract only made it bind- ing as such, and did not destroy the right to recover damages for the tort as a dis- tinct and separate transaction, " and it is obviously just that the vendee should be able to insist on the performance of a con- tract which may be essential to his inter- ests without waiving his right of compen- sation to the full extent to which he has been led to make a worse bargain by the misrepresentations of the vendor." Notes to Chandelor v. Lopus, 1 Smith's Lead. Cas. 2 Supra, § 321. 549 § 324.] THE purchaser's right at law [chap. XIV. the covenants for title to the acts of the vendor * of course con- fines such questions between fewer parties than where, as in parts of this country, it is the practice to receive general covenants for the title. 2 Where the covenants are general, the whole pre- vious question of title is thrown open, the vendor covenants that he is seised of an indefeasible estate, that it is free from all in- cumbrance, or that he will warrant and defend it to the purchaser against all persons whomsoever. Hence any defect or incum- brance, no matter by whom caused or how far back in the chain of title, can raise a question which in England could only arise where the defect was created by a single person, that is, the vendor, or perhaps his ancestor or testator. 3 § 324. Before considering particularly the cases which allow a purchaser to detain his purchase money by reason of defects or incumbrances, it may be proper briefly to advert to the principles on which such a right is based. It is familiar that the system of the common law did not recog-. nize the propriety of settling cross demands in the same suit. The object of each action was to determine the right of the plaintiff as to the particular subject of his demand, without regard to any claim which the defendant might have growing out of the trans- action. To say nothing of convenience, it was of course mon- strous that an insolvent plaintiff, who owed his solvent debtor more than the amount he sued for, should be allowed to recover it, and hence the civil law had, ages ago, introduced the right of set-off under the name of compensation or stoppage. 4 It formed, however, no part of the old common law, and no statute recognized 1 Or his ancestor, or the last person of the vendor, he is apt to be aware of any- claiming by purchase in the popular sense, defects or incumbrances of bis own crea- Supra, § 27. tion, and hence the questions often turn, 2 Supra, § 28 el seq. as has just been seen, upon the point of 3 The cases in the English books as to knowledge and concealment by him, or payment of the purchase money are cbiefly the neglect of vigilance on the part of the those of bills for specific performance, and purchaser. But where general covenants depend on questions which arise before are given, and sometimes even regarded as the execution of the deed (as to which a substitute for examination of the title, see Dart on Vendors (5th ed. ), c. 18, and many cases must arise where there is no note to Seton v. Slade, 2 Lead. Cas. in question of concealment, as the vendor Eq.), and questions arising after its con- cannot be aware of every defect which a summation are much more restricted than previous owner may have caused. in the American cases ; for in England, 4 Story's Eq. Jur. ch. xxxviii. ; Free- where the covenants are limited to the acts man v. Lomas, 9 Hare, 109. 550 § 324.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. it till the first of the statutes of bankruptcy in 170G, 1 and it was long supposed that till then the doctrine was unknown in courts of law. 2 It has been shown in the present century, however, that as early as 1675 the doctrine ivas enforced in courts of law. 3 We know that equity had at some time or other adopted it, but when, exactly, is not known. 4 Of course with the passage of the stat- utes of bankruptcy, 5 and, still later, of the statutes of set-off, 6 the jurisdiction became familiar. It is somewhat curious, as matter of legal history, that the first statute of set-off in the English lan- guage was passed in the Colony of Pennsylvania in 1682, twenty- six years before the English statute. 7 It was, however, some time before the spirit w r hich led to these statutes infused itself into cases which did not come within the letter of their enactment. Thus with respect to personal estate, the purchaser of a chattel was not allowed, in an action for its price, to set up as a defence a breach of warranty either as to quality or title, but was forced to pay the amount, and driven to a cross action by which to establish his own claim. 8 It is not ne- 1 4 Anne, c. 17, a. d. 1706. 2 See per Story, J., in Green v. Darling, 5 Mason, (C. C. U. S. ) 201. 8 By Mr. Christian, 1 Bankr. Law, 499. See also Anon., 1 Mod. 215 (a. d. 1675) ; Chapman v. Derby, 2 Vern. 117 (1689) ; Gibson v. Bell, 1 Bing. N. C. 753 ; notes to Rose v. Hart, 2 Smith's Lead. Cas.; Re- ceivers v. Patterson Co., 3Zab. (N. J.) 283. 4 In Ex parte Stephens, 11 Vesey, 27, decided in 1805, Lord Eldon said, "As to the doctrine of set-off, this court was in possession of it, as grounded on principles of equity, long before the law interfered ; " but how long before, he does not say. The first reported case seems to be Hawkins v. Freeman, 2 Eq. Cas. Ab. 10, s. c. more fully in 8 Vin. Ab. 560, decided by Lord Macclesfield long after the statute of Anne and later statutes of bankruptcy to which the Chancellor referred : " In mutual deal- ings between tradesmen, it is reasonable to suppose they intend one debt should be set against the other, and the balance only to be paid, as it is per statute of bank- rupts." This was, however, five years be- fore the first statute of set-off. 5 4 Anne, c. 17, supra ; 5 Geo. I. c. 11 ; 5 Geo. II. c. 30; 46 Geo. III. c. 135, etc. 6 2 Geo. II. c. 22, A. d. 1729 ; 8 Geo. II. c. 24. 7 In the Great Law (a. d. 1682, Linn's Laws, 118 and note) it was provided that "for avoiding numerous suits, if two men dealing together be indebted to each other upon bonds, bills, bargains, or the like, provided they be of equal clearness and truth, the defendant shall, in his answer, acknowledge the debt which the plaintiff demandeth, and defaulk what the plaintiff oweth to him upon the like clearness." This statute was repealed in England eleven years later, when it was promptly re-enacted in the Colony in the same words. 2 Linn, ib. 200. This again was repealed, and then in 1700 was passed another act, also in the same words, and this was repealed in 1705. 4 Miller's Laws, 18. The Colony immediately passed another act, which has been the law ever since. 1 Purdon's Dig. 603. And all this was before there was any statute at all in England. 8 See the cases cited in Basten v. But- ter, 7 East, 479 ; and per Lord Ellenbor- ough in Farnsworth v. Garrard, 1 Camp. 39 ; Crowninshield v. Robinson, 1 Mason, (C. C. U. S.) 93; Thornton v. Wvnn, 12 Wheat. (U. S.) 183. In Moggridge 551 § 324.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV. cessary here to analyze the train of decisions which have departed from this severity of rule, and finally established the doctrine, on both sides of the Atlantic, that a purchaser may, in a suit brought for the purchase money of a chattel, take advantage of the breach of warranty as a defence, not as a technical set-off, but as evidence of failure of consideration and in mitigation of damages. Such a doctrine was at first totally denied ; then a distinction was taken, as to its admissibility as a defence, between actions brought to recover the contract price and actions brought on securities given for that price ; x then the defence was admitted when it went to the whole consideration, but rejected when it touched only a part ; 2 until finally the doctrine as stated is well settled. 3 It is difficult, however, to say under what precise head such a defence is to be classed. It could not, in strictness, come under the head of set-off, for the purchaser's rights, in general, sound in unliquidated damages, which usually do not come within the statutes of set-off. It has been admitted, moreover, in cases where failure of consideration was not in point, 4 and in Eng- land it was at one time held that such a defence was not by way of a cross action, but by showing how much less the subject v. Jones, 3 Camp. 38, and 14 East, 486, Lord Ellenborough applied the old rule to a caae where the consideration of a bill of exchange was the execution of a lease. The defendant was let into posses- sion, and the plaintiff then refused to ex- ecute the lease. It was held that this was no defence to the bill — that the defeudant had his remedy upon the agreement. 1 Morgan v. Richardson, 1 Camp. 40 ; Tye v. Gwynne, 2 id. 346 ; per Denison, J., in Robinson v. Bland, 2 Burr. 1082 ; Mann v. Lent, 10 Barn. & Cress. 877. And it would seem that this distinction still ex- ists in the Court of Exchequer. Warrick v. Nairn, 10 Exch. 761. 2 Templer v. McLachlan, 5 Bos. & Pull. 136, approved by Shaw v. Arden, 9 Bing. 287 ; Day v. Nix, 9 Moore, 159 ; Keese v. Gordon, 19 Cal. 149; Pulsifer v. Hotch- kiss, 12 Conn. 234 ; see McAlpin v. Lee, id. 129. 3 Allen v. Cameron, 3 Tyrw. 907 ; Poul- ton v. Lattimore, 9 Barn. & Cress. 259 ; Streets Blay, 2 Barn. & Ad. 456 ; Mon- del v. Steel, 8 Mees. & Welsh. 858 ; Pe- 552 den v. Moore, 1 Stew. & Port. (Ala.) 71; Desha v. Robinson, 17 Ark. 244 ; Robin- son v. Wilson, 19 Ga. 507; Brandt v. Fos- ter, 5 Clarke, (Io.) 291 ; Herbert v. Ford, 29 Me. 546 ; Dodge v. Tileston, 12 Pick. (Mass.) 328 ; Harrington v. Stratton, 22 id. 510 ; Perley v. Balch, 23 id. 284 ; Goodwin v. Morse, 9 Met. (Mass.) 279 ; Dorr •;;. Fisher, 1 Cush. (Mass. ) 272 ; Reed v. Prentiss, 1 N. H. 174 ; Shepherd v. Temple, 3 id. 458 ; Britton v. Turner, 6 id. 481 ; Elliott v. Heath, 14 id. 131 ; M'Allister v. Reab, 4 Wend. (N. Y.) 489 ; s. c. 8 id. 109; Battermanw. Pierce, 3 Hill, (N. Y.) 171 ; Whitney v. Allaire, 4 Denio, (N. Y.) 557; s. c. 1 Comst. (N. Y.) 306 ; Steigleman v. Jeffries, 1 Serg. & Rawle, (Pa.) 478; Patterson v. Hulings, 10 Pa. 507 ; Mercer v. Hall, 2 Tex. 284 ; AVith- ers v. Greene, 9 How. (S. C. U. S. ) 214 ; Van Buren v. Digges, 11 id. 461, overrul- ing Thornton v. Wynn, 12 Wheat. (S. C. U. S.) 183. 4 Ives v. Van Epps, 22 Wend. (N. Y.) 155. § 325.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. matter of the contract was worth, by reason of the breach of the warranty, 1 while in New York it received the name of re- coupment. 2 But by whatever technical term such a defence may be called — whether it be compensation, set-off, failure of consideration, or recoupment — the principle on which it is based is the same as that which led to the statutes of set-off, viz. that of preventing circuity of action ; and to whatever extent the common law rules of pleading may have rejected defences which involved more than one issue, it has been found, in modern times, less inconvenient to determine, in the same action, as well the rights of the defendant as those of the plaintiff, than to oppress courts and parties with different suits springing from the same subject matter. § 325. In considering the rights of the purchaser at law, it may also be remarked that, according to the rules of the common law, if the purchase money of real estate were secured by a bond or any other sealed instrument, no defence whatever could, in the absence of illegality of consideration, 3 be admitted to its pay- ment, even where the title to the land had utterly failed and the purchaser been evicted from its possession. There could be no defence on the ground of failure of consideration, for the seal im- ported a consideration which the purchaser was estopped from gainsaying ; 4 and hence the purchaser's only remedy was by re- course to equity. But in some of the United States, the common law rule as to specialties has been relaxed by statutory pro- visions, so far as to entitle the obligor of a bond, under some restrictions, to show by way of defence its failure, as he formerly could have done its illegality of consideration ; 5 and where such is the case it is of course immaterial, so far as this question is 1 Mondel v. Steel, 8 Mees. & Welsh. 3 Fraud would be no defence, unless 858. the fraud related to the execution of the 2 The subject here so briefly and inci- instrument. Rogers v. Colt, 1 Zabr. (N. J.) dentally touched upon will be found fully 704 ; see infra. As to illegality of consid- considered in the American notes to the eration, see the notes to Collins r. Blan- cases of Chandelor v. Lopus and Cutter v. tern, 1 Smith's Lead. Cas. Powell, 1 and 2 Smith's Lead. Cas.; in a 4 Collins v. Blantern, 2 Wils. 347 ; chapter on Recoupment, in Sedgwick on Vrooman v. Phelps, 2 Johns. (N. Y.) 178 ; Damages ; in 2 Kent's Comm. 470, etc. ; Rogers v. Colt, supra. Withers v. Green, 9 How. (S. C. U. S.) 5 Case v. Boughton, 11 Wend. (N. Y.) 214 ; Wheats. Dotson, 12 Ark. 699 ; Good- 107; Wilson v. Baptist Society, 10 Barb, win v. Robinson, 30 id. 535; and 7 Amer. S. C. (N. Y.) 312; McKnight v. Kellett, Law Review, 389. 9 Ga. 534 ; infra, p. 561, n. 4. 553 § 827.] the purchaser's right at law [chap. XIV. concerned, whether the purchase money be secured by a specialty or otherwise. § 326. Apart from the form in which the contract is expressed, it would at first sight seem immaterial whether the position of the purchaser were that of a defendant resisting payment of the pur- chase money or that of a plaintiff seeking to recover it back in an action for money had and received ; as there would seem to be no reason on principle, why, if the purchaser have a right perma- nently to detain unpaid purchase money on the ground of a defect of title, he should be prevented from recovering back that for which he has received no value. But the position of the pur- chaser of real estate, as a plaintiff, must at law necessarily be con- fined to a suit upon the covenants in his deed, which suit (though the same end may be obtained by means of it) depends to some ex- tent upon different principles and machinery from an action which seeks to rescind the contract and recover back its consideration. Hence it may safely be said that, at law, a purchaser has no right, after the execution of his deed, to recover back his consideration money on the ground of a defect or failure of title. His remedy in such case is by an action of covenant, and not by an action of assumpsit. 1 But when the position of the purchaser is that of a defendant, although " the technical rule remits him back to his covenants in his deed," 2 yet, as has been said, it is now consid- ered that he should not be compelled to pay over purchase money which he might the next day recover in the shape of damages for a breach of his covenants, and hence, to prevent circuity of action, the defence at law of a failure of title has been in some cases allowed. § 327. It is not strange that where there has been no uniform 1 Toussaint v. Martinnant, 2 Term, was without consideration, and that the 104 ; Earle v. De Witt, 6 Allen, (Mass.) plaintiff's only remedy was on the cove- 526 ; Tillotson v. Grapes, 4 N. H. 448 ; nants in his deed. In Earle v. De Witt, Hunt v. Amidon, 4 Hill, (N. Y.) 345 ; supra, parol evidence to prove such a (seission of the contract, but because the damages on the covenants were exactly equal to the purchase money and interest; aud it followed that when a portion of the land was so covered by paramount title damages could be assessed pro tauto (Far- rows. Mays, 1 Nott & McC. 312; Hunter v. Graham, 1 Hill, 370; Van Lew v. Parr, 2 Rich. Eq. 337; Jeter v. Glenn, 9 Rich. 37S); aud such is the law at the pres- ent day. But there was another class of cases which, beginning with Gray v. Hand- kinson (1 Bay, 278) in 1792, established the doctrine that where the object of the purchase was defeated, either by a failure of part of the title or of some incident to the purchase, the purchaser could be re- lieved at law by a rescission of the con- tract, although he might be still in pos- session. Such a doctrine, which it was held was a sort of equitable defence, cog- nizable as well at law as in equity on the ground of fraud, continued to prevail until the year 1829, when the courts began to retrace their steps, and by a series of decis- ions (Carter v. Carter, 1 Bail. 217; Bor- deaux v. Cave, id. 250 ; Westbrook v. McMillan, id. 259 ; Johnson v. Purvis, 1 Hill, 326, where it was said that the case of Gray v. Handkinson was an interpre- tation unknown to the common law) es- tablished the position that if the purchaser had not been evicted, the contract would not be rescinded in a court of law, princi- pally on the ground that such a court has not the power to do full and adequate justice to the parties; and the result of the cases was said by Johnson, Ch., in Van Lew v. Parr, supra, to be " that in actions brought for the purchase money the purchaser may make a clear subsisting outstanding title the ground of abatement for the contract value of such part of the premises as it may cover. " In Hodges v. Connor, 1 Spears, 120, where it appeared that the purchaser, who was sued for his purchase money, had received from his vendor a good equitable title and had 570 the means of compelling the conveyance of the legal estate, it was held that there was no defence to the plaintiff's claim. The proposition quoted above from Van Lew v. Parr must of course be understood only as applying to cases in which the covenants include the adverse title. Thus in Evans v. Dendy, 2 Spears, 10, and Rogers v. Horn, 6 Rich. Eq. 362, such a defence was refused, because in case of a sale by an ordinary or a commissioner in equity, no warranty of the title could be ex- acted. The current of authority in South Carolina was fully explained in Van Lew v. Parr, and the opinion of the court was quoted at length in the fourth edition of this treatise, p. 612. See also the cases noticed in Means v. Bricknell, 2 Hill, 143, and Abercrombie v. Owings, 2 Rich. 127. Dix v. School Dist., 22 Verm. 309. The codes of Kansas (Comp. Laws, c. 80, § 94, p. 618),Kentucky (Code of 1883, §§ 95, 96, p. 22), Minnesota (Rev. Stats. 1878, ed. 1881, c. 66, §§ 96, 97, p. 721), and Wisconsin (Rev. Stats. 1878, §§ 2655,2656, pp. 725, 726) contain liberal provisions in regard to set-off and counter-claim, but the decisions under them all seem to recognize the necessity of eviction or some actual damage to bring the case within the code. Scantlin v. Anderson, 12 Kan. 85 ; Cham- bers v. Cox, 23 id. 393 ; Butt v. Riffe, 78 Ky. 353 ; Pryse v. McGuire, 81 id. 608 ; Loury v. Hurd, 7 Minn. 356 ; Walker v. Wilson, 13 Wis. 552 ; Hull v. Gale, 14 id. 54 ; Eaton v. Tallmadge, 22 id. 526. The facts in Scantlin v. Anderson were peculiar. Four heirs joined in a conveyance with the executors, who attempted to transfer the in- terest of the fifth heir, a minor, by execut- ing the deed for him. The deed had gen- eral and special covenants, including one of "good and lawful authority to sell and convey the same." The notes in suit were given for the purchase money to the execu- tors as individuals. Although the defend- ant still retained the title to four fifths of the land, and the possession of the whole of it, he was allowed to set off the failure of title as to the one fifth, and this, although § S34.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. been defeated by a judgment recovered against him, under which, shortly before the trial, the defendant had been evicted, the court the heirs who were also covenantors were not parties to the suit. The reason given is, however, perfectly in accord with the rule stated in the text. After reviewing the cases, the court said, "The great weight of authority undoubtedly is that if the amount of the failure, total or partial, can he determined exactly by mere calcula- tion, then the defence may be made avail- able. This rule covers the present case. The exact amount of the consideration for the land is known, and the amount of the failure is precisely one fifth of the entire consideration of the land." The case of Akerly v. Vilas, 21 Wis. 88, might seem an exception to the rule, as, the court said (p. 109), " Before the code, it was well settled that in suits brought to foreclose mortgages for the purchase money, in which the mortgagor, being in possession of the lands, set up a partial failure of title as a defence, without averring an actual evic- tion or an action of ejectment brought, or that he was in any way disturbed in his possession, the court would not interfere, but leave him to his action at law. But the code allows a counter claim to be set up in an answer to a foreclosure action as well as in others. It is no objection to such counter claim or claims that the damages are unliquidated, or that the claims are legal or equitable, or both ; for claims, legal or equitable for liquidated and unliquidated damages on contract, may be all set up in the same answer. The defendant, who sets up by way of counter claim a cause of action based upon the covenants in a deed, is en- titled to recover the same damages as he would have recovered if he had brought a separate action on those covenants. If he declares upon the covenant of seisin, and alleges breaches, it is no defence to his claim that he is in undisturbed possession of the premises. He has a right to recover his actual damages, whatever they may be, the same as in suit at law before the code." As, however, the defendant had apparently never been put in possession of the prem- ises in regard to which he claimed a breach of covenant, the remark about the im- materiality of undisturbed possession may be regarded as a dictum, and however this may be, it seems certain that the law as stated in the text is now well settled in Wisconsin. Noonan v. Ilsley, 22 Wis. 27 ; Mechlem v. Blake, 22 id. 495 ; Eaton v. Lyman, 30 id. 41 ; Smith v. Hughes, 50 id. 620 ; Clementson v. Streeter, 59 id. 429 ; Bardeen v. Markstrum, 64 id. 613 ; Campbell v. Medbury, 5 Biss. (C. C. U. S.) 35. In Ohio, the earlier cases of Hill v. Butler, 6 Ohio, 216 ; Stiles v. Hobbs, 2 Disn. 571; and G. W. Stock Co. v. Saas, 11 Cin. S. C. 21, clearly hold to the rule stated in the text. The act of 18 April, 1870 (2 Rev. Stats. 1884, tit. i. div. 7, c. 10, p. 1214, §5780), provides: "In actions for the recovery of purchase money of real estate by vendor against vendee, it shall be com- petent for such vendee, notwithstanding his continued possession, to set up by way of couuter claim any breach of the cove- nants of title acquired by him from the plaintiff, and to make any person claiming an adverse estate or interest therein party to the action; and upon the hearing he shall be entitled to recoup, against the plaintiff's demand, the present worth of any existing lien or incumbrance thereon ; and if the adverse estate or interest of the claimant is an estate in reversion or remainder, or con- tingent upon a future event, the court may order the vendee, with his assent, to sur- render the possession to his vendor, upon the repayment of so much of the purchase money as has been paid thereon, with in- terest, or direct the payment of the pur- chase money claimed in the action, upon the plaintiff giving bond in double the amount thereof, with two or more sure- ties to be approved by the court, for the payment of the same, with interest, if the defendant or his privies be subsequently evicted by reason of the defect." In Templeton v. Kraner, 24 Ohio, 554, this act was held to be remedial only, not impairing the contract between vendor and vendee, but authorizing the claimant of the adverse estate to be made a part}', so as to determine the question of a breach of cove- nant, and giving the vendee a right to 571 § 334.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV. allowed the defence, and said that the plaintiff might meet it by showing that the title was good, or that the land at the time of the eviction was worth less than the consideration, and thereby entitle himself to recover the difference, but without evidence to this effect, he ought to be entirely barred of his action. 1 So, too, in Mississippi, in an action on a promissory note for a balance of purchase money of land sold to the defendant's testator with covenants of warranty, the defendant proved that soon after the purchase it was discovered that the vendor had no title what- demand of his vendor the performance of his covenants. In Purcell v. Heeny, 28 id. 39, it was held that there could be no defence under the statute on account of an outstanding title, unless its validity were first established as provided thereby, and that independently of the statute an evic- tion or other damage must be shown. The Missouri statute (1 Rev. Stats. 1879, § 3725, p. 634) provides : " Whenever a specialty or other written contract for the payment of money, or the delivery of prop- erty, or the performance of a duty, shall be the foundation of an action or defence, in whole or in part, or shall be given in evidence in any court without being pleaded, the proper party may prove the want or fail- ure of consideration, in whole or in part, of such specialty or other written contract." Under this, it was held in Ash v. Hol- der, 36 Mo. 163, that a defendant who has bought in an outstanding title can set off the costs and expenses of such purchase, and in Stewart v. Hadley, 55 id. 235, that where there was a partial failure of title, there should be a proportionate deduction from the balance due on the note in suit ; but in Wellman v. Dismukes, 42 id. 101, there was stated to be "authority for the doctrine that a vendee of land who has re- ceived a deed with covenants of warranty, and been let into possession, cannot, when sued at law on the notes given for the pur- chase money, set up the defence of failure of consideration without showing an actual eviction." The statute, therefore, does not seem to have caused any divergence from tin- general rule. 1 Knapp v. Lee, 3 Pick. 452. The decision in this case seems to have been to some extent based udou the insolvency 572 of the party liable on the covenants ; see as to this, infra, Ch. XV. In Rice v. Goddard, 14 Pick. 293, where the defendant in an action brought to re- cover unpaid purchase money had been evicted under a title paramount to that of the plaintiff, it was held that the failure of title was total, and that the former was entitled to a verdict. In this case, as in Knapp v. Lee, supra, the argument for the plaintiff was chiefly based upon the assumption that the covenants themselves were a sufficient consideration for the pay- ment of the purchase money, but this the court repudiated, and denied the authority of Lloyd v. Jewell, 1 Greenl. (Me.) 353, which had been decided on that ground ; see supra, p. 555, n. 1. And the doctrine of Rice v. Goddard was approved in Dun- ning v. Leavitt, 85 N. Y. 30. In the two cases of Davis v. Bean, 114 Mass. 358, 360, being actions on notes for the purchase money of real estate, and to foreclose a mortgage given to secure them, the existence of unpaid taxes which were a lien, was held a breach of the covenant against incumbrances, and the partial failure of consideration, a defence pro tanto. But in Bowley v. Hoi way, 124 id. 395, where the plaintiff, having only a life estate, had conveyed in fee with cove- nants of seisin, right to convey, and war- ranty, this partial failure of consideration was held not a defence pro tanto. Such a defence was said to be admissible only on sales of personal property, and that in Rice v. Goddard the promise to pay was held a nudum pactum only on account of the total failure of consideration. The former of these cases is more in the line of decision than the latter. § 334.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. ever to the land, (except to a very small extent by pre-emption right,) but that it belonged to the United States, and the de- fendant, after a heavy loss had been sustained by the transac- tion, had succeeded in purchasing part of the land again from the government at the public sales, part from purchasers from the government, and pre-emption rights as to the remainder. A ver- dict was found for the defendant, which was sustained by the court, who held that apart from the fact that the act of Congress expressly invalidated any transfer of a pre-emption right before the issuing of a patent, there was evidence in the case sufficient to justify the belief that the parties had, on discovering the defect, considered the contract as rescinded; 1 and that as to the eviction, as the government need not resort to a suit in order to establish its title, but could obtain the possession summarily, a sale of the land by the latter carried with it such a constructive possession as amounted to an eviction, 2 and decisions to the same effect have been made in many other cases. 3 1 Glenn v. Thistle, 1 Cush. (Miss). 42. The land had been originally sold by Hyde to Leonard, the defendant's testator, who had paid part of the purchase money in cash, and given his note at twelve months for the balance. The note in suit had been also indorsed by Thistle, the de- fendant, who was afterwards Leonard's executor. When the defect of title was dis- covered, Hyde returned to Thistle (Leon- ard having died in the mean time) all the notes which he had not parted with, and afterwards exerted himself to procure for Thistle the title to as much of the land as could be bought to furnish him with a consideration for the payments received. It is presumed that the note on which suit was brought had been taken by the plaintiff after its maturity, as there was evidence of his having made inquiry whether any set-off existed against its payment. 2 " As the title has failed, " said Sharkey, C. J., who delivered the opinion, " we come next to inquire whether the defence is made complete by eviction. The deed contains but a general covenant of war- ranty, and it has often been decided that there is not a total failure of consideration without eviction, or something equivalent. . . . The land belonged to the United States, which does not resort to a suit to evict the possessor ; he may be turned off in a summary way. It was not necessary that the government should resort to a suit to establish title. Any one in posses- sion of public land is either a trespasser, or holds by permission of some act of Con- gress. And a sale of the land by the gov- ernment carries with it a constructive possession ; and such sale constitutes there- fore a legal eviction, or certainly what is equivalent to it. But further, if any one had possession, it must have been Thistle, as executor, his wife being a joint legatee of all the real estate ; and if he has en- tered under a paramount title, this is equivalent to an eviction, as an actual ouster was impossible under the circum- stances ; and such title we have said it was competent for him to acquire. But what is perhaps no less conclusive, noth- ing was said as to the possession. It does not appear from the record whether Leonard ever had possession. The point seems to have been overlooked." 3 McDaniel v. Grace, 15 Ark. 489 ; Fisher v. Salmon, 1 Cal. 413 ; Slack v. McLagan, 15 111. 242 (and see the re- marks on that case in Vining v. Leeman, 573 334.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV. So in cases where the purchaser has been obliged to buy in the outstanding title, courts have not hesitated to allow him to deduct from the purchase money the amount paid for that purpose, pro- vided the covenants were such that he would be then entitled to damages upon them. 1 Thus where the defendant, being sued on a note for the purchase money of land conveyed with general war- ranty, proved that the plaintiff had previously conveyed the land to another who was about to sue upon his title, when the defend- ant purchased it for a sum exceeding that of the unpaid pur- chase money, the court had no doubt that these facts were a defence to the action. 2 So in Indiana, 3 in an action by the in- dorsee of a promissory note, the defendant pleaded that its con- sideration was the balance of the purchase money of certain land 45 id. 248) ; Dodds v. Toner, 3 Ind. 427 ; Brandt V. Foster, 5 Clarke, (Io.) 298; Hobein v. Drewell, 20 Mo. 450 ; Tibbets v. Ayer, Hill & Denio, (N. Y.) 174 ; Blair v. Claxton, 4 N. Y. 529. In Nesbitt v. Campbell, 5 Neb. 429, the payment of a tax lien was held a defence, whether paid before or after suit brought. 1 Thus it is observed in the most recent English treatise on the law of vendors : "After the conveyance has been executed, the purchaser may discharge out of any purchase money which remains unpaid (al- though secured) any incumbrances which either have been created by the vendor himself or are covered by his covenants for title ; but not incumbrances paramount to his title and not covered by his cove- nants." Dart on Vendors (5th ed. ), ch. xv. § 7. 2 Pence v. Huston, 6 Grat. (Va.) 304. It may save the student some waste of time to observe that many cases are cited in the reports and occasional notes in text-books as bearing upon the subject of this chapter, which in fact have no connection with it. Thus the cases of Blanks v. Walker, 54 Ala. 117 ; Haynes v. White, 55 Cal. 38 ; Long v. Allen, 2 Fla. 404 ; McCauley v. Moses, 43 Ga. 577 ; Booth v. Seffold, 46 id. 278 ; Ty- ler v. Young, 2 Scam. (111.) 445; Greg- ory v. Scott, 4 id. 392 ; Condrey v. West, 11 111. 146 ; Morgan v. Smith, id. 194 ; Davis v. MeVickers, id. 327 ; Thompson v. Shoemaker, 68 id. 256 ; Leonard v. 574 Bates, 1 Blackf. (Ind.) 172 ; Wilhelm v. Fimple, 31 Io. 131 ; Stone v. Fowle, 22 Pick. (Mass.) 166 ; Peques v. Mosby, 7 Sm. & Marsh. (Miss.) 340; Liddell v. Sims, 9 id. 596 ; Feemster v. May, 13 id. 275 ; Wiggins v. McGimpsey, id. 532 ; Mobley v. Keys, id. 677 ; Tillotson v. Grapes, 4 N. H. 448 ; Scott v. Simpson, 11 Heisk. (Tenn.) 310 ; Chandler v. Marsh, 3 Verm. 162 ; M'Kay v. Carrington, 1 McLean, (C. C. U. S.) 50, were all cases of execu- tory contracts, and of course governed by different principles from cases of contracts executed. Burton v. Schermerhorn, 21 Verm. 291, was a case of personal prop- erty, and it was held, affirming the doc- trine in Stone v. Peake, 16 id. 218, that a partial failure of consideration was no defence unless the defendant offered to re- scind the contract. Lawrence v. Stoning- ton Bank, 6 Conn. 526, merely decides that between the original parties to a negotiable note its consideration may be inquired into, while Homes v. Smyth, 16 Me. 177, holds the equally familiar propo- sition, that if the note is in the hands of a bona fide indorsee before maturity and taken in the usual course of business, its original consideration cannot be inquired into. The student must also be careful to class by themselves the cases in Pennsyl- vania and Texas, which will be presently referred to. 3 Doremus v. Bond, 8 Blackf. (Ind.) 368. § 335.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. conveyed by the payee to the defendant with " covenants of clear title and of warranty," and that part of the land was incumbered by judgments and mortgages which the defendant had, in order to prevent a sale, been obliged to pay off ; the plaintiff replied that these payments had been made by the defendant after notice of the assignment of the note, but this was obviously held bad on demurrer, and judgment was given for the defendant. 1 Other cases have recognized and applied the same principle. 2 The purchaser's remedy in equity will be considered in a subse- quent chapter. 3 § 335. There remains but to consider the doctrine which, from an early date, has been recognized and applied in Pennsylvania, 4 and recently enforced in Texas. The doctrine which, from an early day, has prevailed in Penn- sylvania as to the purchaser's right to detain the purchase money " after the execution of his deed by reason of an incumbrance or defect of title, is believed to be peculiar to that State, though as respects his right to recover back what has been already paid, the law that has been referred to as prevailing elsewhere 5 is there fully recognized and enforced. In early cases in that State, 6 the maxim of caveat emptor, in the sale of real estate, was adverted to; and in Dorsey v. Jackman, 7 the plaintiff, on paying his purchase money, took from the defendant, his vendor, a mere assignment of a commissioner's deed under a tax sale, and on discover- ing that it conveyed no title brought suit to recover the amount of the purchase money, 8 and under the charge of the court below obtained a verdict ; but the judgment was reversed on error, on the ground that there being no implied warranty in the sale of real estate, a purchaser who had neglected to protect himself by 1 It is presumed that the plaintiff was upon the covenants of his deed to recover not a holder for value, before maturity, it hack." and without notice. 3 Infra, Ch. XV. 2 Brandt v. Foster, 5 Clarke, (Io. ) 298 ; 4 As formerly in South Carolina, supra, McDaniel v. Grace, 15 Ark. 487, where it p. 569, note. was conceived to be settled that " where 5 See supra, §§ 321, 332 et seq. a purchaser has taken a deed with general 6 Boyd v. Bopst, 2 Dall. 91 ; Cain v. covenants of warranty, and there is a total Henderson, 2 Binn. 108. failure of title, or an eviction or its legal 7 1 Serg. & Rawle, 42. equivalent, and the vendor sues for the 8 The plaintiff having found out the purchase money, the purchaser may avail true owner, purchased the title from him, himself of the plea of failure of considera- but this in the case of a deed without tion, and will not be forced to pay the covenants is an immaterial point. See money and then resort to a cross action supra, § 321. 575 § 336.] the purchaser's right at law [chap. XIV. proper covenants could not in an action for money had and re- ceived recover what he had already paid ; and this rule, which is in accordance with all the decisions elsewhere, has been consist- ently adhered to. 1 In delivering their opinions, however, two of the court suggested that a distinction might exist as to the pur- chaser's right to detain so much of the purchase money as should remain unpaid, but a definite expression of opinion on this point was, it was said, reserved until the determination of a case that had already been argued. § 336. That case was Steinhauer v. Witman, 2 decided in 1815 — the leading authority in Pennsylvania as to detention of the pur- chase money. The defendant's intestate, having received a deed with a covenant of warranty limited to the acts of the vendor, gave a mortgage for the purchase money, and in an action on this mort- gage evidence was admitted to prove that the purchaser had been evicted from part of the mortgaged premises under a title para-* mount to that of the plaintiff, and of course not covered by his covenants. The admission of this evidence was assigned for error by the plaintiff, on whose behalf it was urged that to make him liable beyond the extent of his covenants would be to con- found all distinction between limited and unlimited covenants, and be a violation of the agreement of the parties; 3 and the court, while admitting that if the question were new it might be diffi- cult to answer, said : " But principles have been established which are adverse to the plaintiff's reasoning, and must be considered as the law of the land. The plaintiff does not deny that the matter offered by the defendant would have been a good defence, if the contract had rested on articles by which the plaintiff had agreed to convey, and the defendant had covenanted to pay the purchase money ; and yet if these articles had only bound the plaintiff to convey with covenant of special warranty, it would have been as much against the spirit of the contract to make him responsible for an eviction under a title paramount, as it is now, after he has conveyed with a covenant of special warranty. A distinction has 1 Lighty v. Shorb, 3 Pa. (old Pa., not * 1 Serg. & Rawle, 438. Pa. St.) 417 ; Kerr v. Kitchen, 7 Pa. 486. 3 Sugden on Vendors, and Bree v. It may be proper to repeat that even Holbeeh, Doug. 654, supra, p. 536, n. 1, where there are covenants, the purchaser's were the authorities relied on for the rights must be asserted in an action of plaintiff. covenant, and not in an action of assump- sit. See supra, § 326. 076 § 337.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. been established between purchasers who have paid, and who have not paid, the purchase money. Those who have paid have no relief, but those who have not paid are relieved, in case of an eviction or manifest failure of title. There is a dictum to this purpose by Lord Commissioner Rawlinson, 1 and the point was directly decided in an anonymous case, 2 Cases in Chancery, 19. 2 The case of Tourville v. Nash 3 is also worthy of consideration, although not directly in point. There the purchaser paid part of the money, and gave bond for the residue. After giving bond, and before payment, he received notice of an equitable lien on the land which he had purchased, and it was held that he should be subject to the lien, although he contended that the notice came too late, because he had no defence against the bond. But the Lord Chancellor answered, that though there was no defence at law, yet equity would, in such a case, stop payment of the money due on the bond. 4 I have reason to believe that the courts of this State have been governed by the principles of the case in 2 Cases in Chancery, 19, so that to set up a different rule now would create confusion." The judgment was therefore affirmed. § 337. It is familiar that the absence, for just a century, of a court of equity in Pennsylvania gave rise to the practice of exer- cising equitable jurisdiction through the medium of common law forms. 5 Such a practice would fully account for the application, in Steinhauer v. Witman, of such equitable principles as regu- lated the rights of the parties to contracts when executed, but it would not account for the application of such equitable principles as govern executory contracts. The difference between these two 1 The dictum thus referred to is in an thority, and even in Pennsylvania has anonymous case in 2 Freem. 106. A bill been said to be "not worthy of a mo- filed to relieve a purchaser, on the ground ment's consideration." Light} 7 v. Shorb, of a fraudulent representation of value, 3 Pa. 451. was dismissed because of his laches, "and 3 3 P. Wms. 307. a case was cited by the Lord Keck. A 4 It must, however, be observed of this purchaser brought his bill to be relieved case of Tourville v. Nash that the contract where incumbrances were concealed, but was not executed, but executory. If it was dismissed, for he ought to have pro- had been executed by a conveyance con- vided against it by covenant ; but it was taining no covenant which included the said by Rawlinson, that if the purchaser lien in question, equity could not have re- had in that case had money in his hands, lieved the purchaser. See supra, § 321. that this court would have helped him, 5 For a sketch of this Pennsylvania but not after he had paid his money." system, see Laussat on Equity in Penn- 2 This case (already cited at length, sylvania, and the supplementary treatise, supra, p. 446, n. 1) has always been ltawle on Equity in Pennsylvania, deemed of doubtful authenticity and au- 37 577 § 338.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV principles has already been referred to as a broad one : 1 before the consummation of the contract by the execution of the deed, the right of the purchaser to a title clear of defects and incum- brances is undoubted ; after that time, his rights, both at law and in equity, depend solely on his covenants for title. It is obvious that the doctrine of Steinhauer v. Witman was to wipe out this distinction, and the result of this decision, added to that of Dorsey v. Jackson, of course gave a purchaser greater rights as a defend- ant than he could have as a plaintiff. § 388. The doctrine announced in Steinhauer v. Witman was affirmed in a case decided in 1819, 2 and although always adhered to, 1 Siqjra, § 319. 2 Hart v. Porter, 5 Serg. & Rawle, 201. The plaintiffs having brought suit in the court below on three notes given for the purchase money of land sold to the de- fendant with special warranty, the latter proved an outstanding title of dower in the wife of a former owner, to rebut which the plaintiffs offered in evidence a release from her husband and herself, subsequent to the commencement of the suit ; which the court, under objection, admitted, and then charged the jury that as there had been no previous agreement to convey the land free from incumbrances, as the incumbrance existed at the time of the purchase made by the defendant, and as he had a full opportunity of making himself acquainted with the circumstances of the title, and accepted a conveyance without general warranty, he could not then avail himself of any defect of title as a defence to the action, and was answerable for the whole of the purchase money. Upon writ of error to the Supreme Court, it was there held that the evidence had been properly admitted, but the judgment was reversed upon the ground of the charge. The court, in referring to Steinhauer v. Wit- man, said : "As the opinion of the court in that case was unanimous, the law must be considered as settled. I will freely confess that it was not without consider- able reluctance I agreed to the principle established in that case, nor did I make up my mind until I had taken pains to ascertain what had been the understand- ing and practice in this State for a great length of time. Being at length satisfied 578 that the prevailing opinion among law- yers, judges, and men of business had been that until payment of the purchase money the vendee might avail himself of a de- fence founded on defect of title, even where he had accepted of a conveyance with special warranty only, I thought it incumbent on me not to oppose a prin- ciple in which there was nothing contrary to equity. Indeed, the objections to this principle are not founded so much on equity as on polic} T and convenience. For where one party intended to convey, and the other expected to receive a good title, it is but equity that the purchaser should have relief in case of any defect of title, although there was no express agreement to that purpose. Where the intent was that the purchaser should run the risk of title, there is not a word to be said for him. And such intent may be fairly in- ferred where he knew of the defect at the time of purchase, and made no provision against it in his agreement. Considering then that it was decided in the case of Steinhauer v. "Witman that a purchaser not having paid his money may defend himself under a defect of title, where part of his purchase has been evicted, although he has accepted a conveyance with no more than special warranty, and considering that where there has been no eviction it would be against equity to compel pay- ment of the whole purchase-money for a defective title, I am of opinion that the charge of the Court of Common Pleas was erroneous. The judgment therefore should be reversed. It is to be under- stood that this opinion is confined to the § 338.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. has been qualified and explained in many subsequent cases, 1 whose result may be stated in general terms to be, that in Pennsylvania a purchaser may defend himself from payment of the purchase money by reason of a clear outstanding- defect or incumbrance, unless the intention was that he was to run the risk of it. 2 Such an intention may be -either matter of proof or matter of implica- tion, and the most material circumstances are, in general, notice on the part of the purchaser, combined with the presence or ab- sence of covenants which include the defect or incumbrance ; or, in other words, as stated in a recent case, the doctrine in Penn- sylvania is that " if the consideration money for land has not been paid, the purchaser, unless it plainly appear that he has case of a purchaser who has no covenants on which he can have recourse to the seller. Where such covenants exist, it is not meant now to say at what time or in what manner the purchaser is to have his remedy on them." It is difficult to perceive why the judg- ment was reversed in this case, since, by the evidence, which the Supreme Court held to have been properly admitted, it appeared that at the time of the trial the only outstanding title which was relied on by the defendant had been extinguished, and for anything that appeared upon the record a second trial must therefore have resulted similarly to the first. This case should be read in connection with Lud- wick v. Huntzinger, infra, p. 585, n. 6. 1 Thus in Friedly v. Scheetz, 9 Serg. & Rawle, 161, where (as also in Auwerter v. Mathiot, id. 403, and Weidler v. Farm- ers' Bank of Lancaster, 11 id. 134) the doctrine was held not to apply to pur- chasers at a sheriff's sale, Mr. Justice Duncan said : " Steinhauer v. Witman is not well understood. It does not go to the wild length, as some have supposed, that a man who purchases a title with all its defects and imperfections, and whose conveyance contains no covenants of war- ranty, is not bound to pay the bonds he has given for it. For Mr. Justice Yeates, the great advocate for the departure from the general rule, both of law and equity, of caveat emptor in the sale of lands, yet restrains its operations, for he puts it on a very rational principle. The obvious and plain rule, he says, is, what was the true meaning of the contracting parties ? was it contemplated mutually that the purchaser should hold the land under a good title, or that he should run his chance of getting a title, and be exposed to all hazards ? " In the case of a sale by authority of the Orphans' Court, the rule of caveat emptor is of course held to apply. Bashore v. Whisler, 3 Watts, 493 ; also Fox v. Mensch, 3 Watts & Serg. 446 ; King v. Gunnison, 4 Pa. 171 ; Kennedy's Appeal, id. 149. So in cases of sales by sheriffs, commissioners, and the like, from the very nature of the transaction the purchaser necessarily buys at his own risk, and can- not detain the purchase-money under any circumstances by reason of incumbrances or defects of title. Friedly v. Scheetz, 9 Serg. & Rawle, 161, and supra, § 37. The converse of this rule applies in cases of partition and exchange, in both of which a warranty is implied. Seaton v. Bar- ry, 4 Watts & Serg. 184 (as to which, see supra, §§ 276, 277). But it has been well said by Gibson, J., that "the greatest practical evil of the doctrine [of Steinhauer v. Witman] is that it subjects the contract to the control of a jury, prone to forget that to cut a man loose from his bargain from motives of humanity is the rankest injustice ; and from this it would seem sound policy to extend it no further than it has been already carried." Lighty v. Shorb, 3 Pa. (old Pa., not Pa. St.) 451. 2 See Lloyd v. Farrell, 48 Pa. 73. 579 § 340.] the purchaser's right at law [chap. XIV. agreed to run the risk of the title, may defend in an action for the purchase money by showing that the title was defective, either in whole or in part, whether there was a covenant of general warranty, or of right to convey, or quiet enjoyment, by the vendor or not, and whether the vendor has executed a deed for the premises or not." 1 § 339. The cases can perhaps be divided into three classes : — First. Where the defect or incumbrance is unknown ; Second. Where there is a known defect or incumbrance and no covenant ; Third. Where there is a covenant against a known defect or incumbrance. § 340. First. Where the defect or incumbrance is unknown to the purchaser, it is of course impossible that he could have in- tended to run the risk of it, and hence two questions arise : first, what defects or incumbrances will entitle the purchaser to detain the purchase money ; and secondly, what will be deemed an absence of notice on his part. With respect to the character of the defect or incumbrance, 2 although it is at times said that the contract is still executory as to the unpaid purchase money, yet this must not be understood to mean that a purchaser will, after the execution of his deed, have a right to detain the purchase money in every case in which equity would refuse to decree specific performance by him. While on the one hand it is not necessary that an eviction should have taken place, 3 or the incumbrance have been paid off by the pur- 1 Youngman v. Linn, 52 Pa. 413, per v. Porter, 5 Serg. & Rawle, 201 ; Share v. Woodward, C. J., cited and approved in Anderson, 7 id. 61. "The effect of in- Cross u.Noble, 67 id. 74, where it was also cumbrances," it was said in the last case, said that the coverture of the covenantor "as showing failure of consideration, or a would have been a good plea to an action defect in the title, is certainly different in on the articles of agreement or the cove- Pennsylvania from what it is in England ; nants in the deed, and a good replication, there, an eviction at law is an indispensa- had the breach of covenant been pleaded ble ingredient of a claim for relief against as a set-off in an action upon any other payment of the purchase money. Here, distinct contract, but availed nothing in it is sufficient that eviction may take an action for the purchase money. place." And this was repeated in Beau- - It is scarcely necessary to say that pland v. McKeen, 28 Pa. 130 ; but it was the character of the defect or incumbrance added with great correctness by Woodward, must be lawful, as distinguished from a tor- J., who delivered the opinion: " This is a tious interruption. Supra, § 127 ; Spear very delicate ground on which to admin - v. Allison, 20 Pa. 200. ister justice to vendors and vendees, for 3 Carnahan v. Hall, Addison, 127; in determining the possibility of an evic- Goucher v. Helmbold, 1 Miles, 407 ; Hart tion we have not before us the paramount 580 10.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV cliascr, 1 yet on the other hand it will not be sufficient that the title can be shown to be merely doubtful, or the incumbrance contin- gent, 2 and unless its character be such as to defeat the purchase, claimant on whose will and lights the lia- bility to eviction depends. Possibly lie has no rights, as would appear the moment he attempted to assert them — or if ho have rights it is possible he may never at- tempt to assert them — and in either case it would be against conscience and equity to allow the purchaser to keep the land, on which so unsubstantial a cloud rests, and the price also which he agreed to pay to the party who put him into possession." It is to be observed, however, that while eviction is not, in Pennsylvania, essential to a plea of breach of covenant, yet if the defendant has remained in possession, he cannot of course claim interest on the damages caused by the failure of title. Wacker v. Straub, ~88 Pa. 32. The purchaser may of course by his own acts deprive himself of his defence from payment of the purchase money, as in Gilke- son v. Snyder, 8 Watts & Serg. 200, where a third person having advanced money to the vendor in part payment of the purchase money upon the representations of the pur- chaser that he would be safe in so doing, it was held that the latter could not, in an action on a bond given for the amount thus advanced, defend himself by reason of a defect of title. So in Harper v. Jeffries, 5 Whart. 26, the defendants gave ten bonds, each to secure $500, for the purchase money of a house, which they soon after discovered had been previously mortgaged by the vendor to the Bank of Pennsylvania for $2,470. The vendor thereupon con- veyed to the defendants other premises, in order to indemnify them from this mort- gage, and the defendants at different times thereafter paid off the respective amounts of several of the bonds to the persons to whom they had been assigned by the ven- dor. The premises which had been con- veyed by way of indemnity were afterwards sold, under prior incumbrances, for less than the amount required to satisfy them, and the house was soon afterwards sold by the bank under its mortgage for less than the amount due upon it. Under these circumstances it was held by the court, reversing the judgment below, that the defendants were not entitled to any defence from payment of the purchase money. Mere acceptance of the deed and pay- ment of an instalment of the purchase money before the day agreed upon for that purpose and for the delivery of possession are, however, no waiver of a defence aris- ing from the vendor's breach of covenant in failing to give possession on account of an incumbrance. "Wilson's Appeal, 1 Cent. Rep. 122. 1 Thus in Poke v. Kelly, 13 Serg. & Rawle, 165, although the purchaser had actually paid off an outstanding mortgage, it was held by the court that its payment was not necessary in order to enable the defendant to deduct its amount from the purchase money. So in Roland v. Miller, 3 "Watts & Serg. 390, where the title of the vendor was subject to charges in favor of the heirs of the former owner, a con- ditional verdict was found for the plaintiff, with stay of execution until releases from these heirs should have been obtained. 2 Culler v. Motzer, 13 Serg. & Rawle, 356 ; Penn v. Preston, 2 Rawle, 19. "I wish to be distinctly understood," said Kennedy, J., in Ludwick v. Huntzinger, 5 "Watts & Serg. 58, "as laying down the principle that in order to make such out- standing title a good defence in such cases, it must be clearly shown to be indubitably good, and that the land is actually claimed under it. It is proper however to observe that a different principle, governs where the contract for the purchase of the land remains in fieri, and the action is brought on the contract itself with a view to en- force the payment of the purchase money according to its terms. There, if it should appear that the title of the vendor to the land is anywise doubtful, the vendee will not be held bound to pay the purchase money for it ; Stoddart v. Smith, 5 P>inn. 365 [and see supra, pp. 42, 534] ; unless it should also appear that he had expressly agreed to do so. Dorsey v. Jackman, 1 Serg. & Rawle, 42 ; Pennsylvania v. Simms, Addison, 9." (For the point actually de- 581 340.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV. (as for example by requiring the whole of the unpaid pur- chase money for its removal,) the purchaser is not allowed on this ground to rescind the contract, 1 but can only defend pro cided in this last case, see supra, p. 575.) And these views were cited and approved in Crawford v. Murphy, 22 Pa. 87, Beau- pland v. McKeeh, 28 id. 131, and Young- man v. Linn, 52 id. 413. In Brick v. Coster, 4 Watts & Serg. 494, the court held an affidavit of defence insufficient because it did not allege the validity of the adverse claim, or at least the defendant's belief in their validity. So in Asay v. Lieber, 92 Pa. 377, an affidavit of defence alleging a covenant for the free use of a certain alley, and that the defendant had never had the use of the alley, was held insufficient as not alleging that at the time of the con- veyance the plaintiff had not a good title to the alley. The remarks of Yeates, J., in Stoddart v. Smith, that ' ' a man will not be compelled to pay for lands which he has purchased, though even with general warranty, where it plainly appears that he cannot obtain a good right therefor," were obiter dicta in the case, which was one where no deed had been executed, and they must be considered as limited to the application pointed out. in Ludwick v. Huntzinger. The distinction noticed in that case as to the rights of the parties while the con- tract is still executory, and after it has been consummated by the execution of the deed, although by no means so broad a one as exists elsewhere (see supra, § 319 ct seq.), yet still is recognized to a greater extent in Pennsylvania than the language of some of the earlier cases would seem to imply. "If the vendee discovers, " said Kennedy, J., in Moore v. Shelly, 2 Watts, 257, in speaking of an executory contract, "before he has paid the consid- eration or any part of it, that the property is under incumbrances which the vendor cannot discharge, he has a right to insist upon rescinding the contract, and may therefore refuse to pay for it, or to do any- thing on his part towards carrying it into execution." So in Withers v. Baird, 7 Watts, 229 ; Colwell v. Hamilton, 10 id. 413 ; Cans v. Renshaw, 2 Pa. 34 (unless the purchaser retain possession of the land 582 and buy in the outstanding claims, in which case he will of course be compelled to pay the price agreed on, with a deduc- tion for the amount thus paid by him, Renshaw v. Gans, 7 id. 117, infra), and this is the general principle which is ev- erywhere observed ; supra, p. 42. But as was said by Sergeant, J., in Magaw v. Lothrop, 4 Watts & Serg. 321, "If he ac- cept a deed under the contract, the vendor may sue for the purchase money on bond or otherwise, though if it should turn out that there was a defect of title or out- standing incumbrance, he would be en- titled to recover, the jury allowing to the defendant a deduction equivalent to the value. It would be no absolute bar to the action to say that at the time the ac- tion was brought the plaintiff had not conveyed a good and sufficient title, and this was the case of Hart v. Porter, 5 Serg. & Rawle, 201 ." Magaw v. Lothrop pro- ceeded upon the rule in equity that in a suit for specific performance the ven- dor may perfect his title at any time before final decree. Where, however, the incumbrances are not removed until after suit is brought, the purchaser is entitled to costs. Poke v. Kelly, 13 Serg. & Rawle, 165 ; Withers v. Atkinson, 1 Watts, 248. 1 Harper v. Jeffries, 5 Whart. 26, supra, p. 581 ; see also M'Ginnis v. Noble, 7 Watts & Serg. 454 ; Renshaw v. Gans, 7 Pa. 117 ; Dentler v. Brown, 11 id. 298 ; Garrard v. Lantz, 12 id. 192 ; Mellon's Appeal, 32 id. 127. In M'Ginnis v. Noble, supra, the defendant was sued on two bunds, amounting to §3,000, given for the purchase money of land, which was sub- ject to a judgment against the vendor, under which an execution afterwards is- sued, and the land sold and purchased by the defendant for $750, and it was con- tended on his behalf that there was a total failure of consideration ; but the court said, "The defence, it must be remembered, is purely equitable, and the inquiry is what would a chancellor do under such circum- stances ; on what terms and to what ex- tent would he afford equitable relief ? It 340.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. tanto, and the measure of damages which he will be entitled to defalk against the unpaid purchase money will be the same as that heretofore referred to as recoverable upon breaches of the covenants for title. 1 strikes me most forcibly that all the ven- dee has a right to require is to be placed in the same situation he would be in had he paid the incumbrances without suit ; and in that case, it must be admitted, the measure of equitable relief would be pre- cisely the money paid, and the necessary expenses, and no more. The vendee, it is true, is in no default, because no part of the purchase money was then due, and consequently he was not bound to pay the incumbrances, as he had nothing in hand to pay them with. He might therefore, it is admitted, have suffered the land to be sold with a clear conscience, and if at the sale by a judicial process a stranger had purchased, no blame would be imputable to him ; the defence would go to the whole consideration, for a man is not bound to pay for what he has not received. The bonds are given for the purchase money of the land, and having lost the land, with- out any default of his own, it would be inequitable and unjust that he should be compelled to pay any part of the purchase money. But will equity interpose further than for the purpose of protecting him against any loss he may have actually sus- tained ? We think not." In Garrard v. Lantz, supra, the court, after referring to the authorities just cited, said that they "establish the distinction that where the vendee himself becomes the purchaser at the judicial sale, he remains liable to the vendor for the residue of the purchase money unpaid ; but if the land be sold to a stranger, this liability depends on the inquiry whether at the period of the last sale the vendee had in his hands, of the consideration of his purchase, a sum sufficient to extinguish the incum- brance." Where however the incumbrance on the land is greater in amount than the unpaid purchase money, the vendee has an obvious right to treat the contract, as re- scinded. Garrett v. Crosson, 32 Pa. 375. 1 Supra, pp. 264, 574. Thus in Steh- ley v. Irvin, 8 Pa. 500, the owner of a mill and of a tavern constructed a pipe to carry water from the former to the latter. He then sold the tavern to one purchaser and subsequently sold the mill property to another. The latter had no notice of the easement, and in an action for the purchase money, it being proved that the existence of the easement would lessen the benefit of his purchase, the jury was in- structed that the value of the easement might be deducted from the amount of the purchase money, and this instruction was affirmed on error. So in Beaupland v. McKeen, 28 id. 134, it was said by Woodward, J., in delivering the opinion of the court : ' ' The rule that applies to damages on breaches of covenants for title is applicable here, and according to that, either party may produce evidence to show the relative value which the part taken away bears to the whole, and this, as was said by Kent, C. J., in Morris v. Phelps, 5 Johns. (N. Y. ) 56, operates with equal justice as to all the parties to the convey- ance. In Lee v. Dean, 3 Whart. 331, Judge Kennedy reasserted the rule with great emphasis as applicable to a case un- tainted with fraud, the relative value of the part to the whole is to be estimated with regard to the price fixed by the par- ties for the whole, [s. p. in White v. Low- ry, 27 Pa. 255.] The whole purchase being assumed to be worth the price agreed on, what part of the price would fairly be represented by the part taken away? This was the question in Stehley v. Irvin, 8 id. 500, though the case is so defectively reported that the point ruled is scarcely discernible. It is competent for either party, under this rule with its limitation, to give evidence of the peculiar advantages or disadvantages of the part lost ; and the inquiry should not be unduly restrained whilst it is confined to the proper point, but undue latitude was allowed to it when the cost of erecting a saw-mill on an ad- joining tract was gone into." In Cross v. Noble, 67 id. 74, the breach set up in the 583 § 341.] the purchaser's right at law [chap. XIV. § 841. "With respect to what will be deemed to be notice on the part of the purchaser, it is now held that mere constructive notice will not be sufficient to deprive a purchaser of relief under the doctrine we are now considering. 1 In a case 2 where the land was, under a decree of the Orphans' Court, subject to a charge in favor of the vendor's co-heirs, it was argued that the purchaser had notice by the record of the existence of the incumbrance, but the court held that it was not pretended that the defendant had any actual knowledge of the incumbrance at the time of the agree- ment for the purchase, or even at the time that he received the deeds from the plaintiff. Indeed, neither of the parties seemed to have had a knowledge of the same until some time afterwards. This being the case, it could not be supposed that any covenant contained in the deeds was taken or inserted specially with a view to protect the defendant against the effect of it. The case then fell, it was said, within the authority of Steinhauer v. Wit- man. So where the incumbrance appeared on the face of re- corded deeds which lay in the line of title, it was held that though constructive notice to the purchaser, it was not such actual knowl- edge as would imply the consent of the purchaser and his inten- tion to take the risk of the title. 3 Had he taken a covenant that would have covered the defect, the implication of actual knowl- edge would have been irresistible. 4 And it has been said that " Where a purchaser is only charge- able with constructive notice of a defect in the title, there is no reason for a presumption that he binds himself to pay the pur- chase money, no matter what may prove the defects of title. It is only when he has actual knowledge of the defect, that he is defence was a previous outstanding lease 4 Citing Fuhrman v. Loudon, 13 Serg. and consequent failure to give possession, & Rawle, 386; see infra, pp. 592, 593. and it was held that the vendee was en- Thus in Kerr v. Kitchen, 17 Pa. 433, the titled to the rent reserved under the lease, purchaser accepted a deed which expressly and that his receipt of it would not pre- referred by recital to a trust deed, giving elude him from setting up the defence to its date and record, and which contained the extent of his real injury, allowing for a covenant which included the defect, and what lie had so received. it was held that in the absence of evidence 1 Banks v. Amnion, 27 Pa. 172. to the contrary the purchaser must be con- 2 Roland v. Miller, 3 Watts & Serg. sidered to have had notice of the trusts in 390. the deed, and to have protected himself 3 Murphy v. Richardson, 28 Pa. 293. against them by taking the covenant for A dissenting opinion in this case will be quiet enjoyment. See as to this, infra, found in 2 Phila. R. 419. § 342. .584 § 343.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. presumed to waive full compliance with the covenant of his vendor." * § 342. Second. Where there is a known defect or incumbrance and no covenant, it has been already shown 2 that the rule as generally settled elsewhere than in Pennsylvania with respect to a purchaser's right to detain the purchase money is, that if the defect or incumbrance be not covered by his covenants for title, the presumption that he intended to run the risk of it is so strong as to admit of no evidence to the contrary, 3 and the pur- chase money cannot be detained under any circumstances into which fraud has not entered ; and in the enforcement of these principles equity follows the law. 4 § 343. It would seem, however, that while such a doctrine has not been recognized in Pennsylvania to its full extent with respect to a defect of title, its application has been altogether denied with respect to an incumbrance. It has been said 5 that the intent that the purchaser was to run the risk of the title might he fairly inferred when he knew of the defect at the time of the purchase, and made no provision against it ; 6 and in a subsequent case, 1 Thomas v. Harris, 43 Pa. 231. When the earlier editions of this treatise were published, the law as to constructive no- tice had not been settled as now stated in the text. 2 Supra, § 321. 3 Where there is a deficiency in the quantity of the land conveyed, and there is no covenant that there shall be such a quantity, the purchaser cannot of course detain the purchase money. Dickinson v. Voorhees, 7 Watts & Serg. 357. See su- pra, § 297. 4 In either of these cases, whether there are covenants or not, the fact of the pur- chaser's notice is one wholly immaterial ; as, if he be entitled to damages, his no- tice cannot prejudice that right. Supra, § 88 et seq. But under what have been styled the equitable principles of this doc- trine in Pennsylvania, it has been shown that while with respect to so much of the purchase money as has been already paid the contract is deemed an executed one, and the money cannot be recovered back unless by force of a covenant, yet that with respect to the unpaid purchase money it is still executory ; or, as has been said by Yeates, J., in Steinhauer v. Witman, 1 Serg. & Rawle, 438, there is a locus peni- tential until the money is paid. Hence must arise the question as to the real nature of the contract between the parties, and whether the purchaser agreed to run the risk of the title. In such a question, the fact of the purchaser's notice must neces- sarily be a principal ingredient, and the ab- sence of a covenant does not possess the conclusive and binding effect that would elsewhere be given to it. 6 Hart v. Porter, 5 Serg. & Eawle, 204, cited supra, p. 578, n. 2, and see the re- marks on this ruling by Woodward, J., in Murphy v. Richardson, 28 Pa. 293. 6 So iii Lmlwick v. Huntzinger, 5 Watts & Serg. 58, the defendant in an action on his bond, given for the purchase money of land conveyed to him with special warranty, offered to prove an in- formality in a prior tax sale and a want of identity of the subject of the contract with the land purported to be conveyed. The Supreme Court held this evidence properly rejected by the court below ; that the evidence of a defect of title must be such as entirely to overcome that violent 585 § 344.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV. Gibson, C. J., referring to this expression, emphatically repeated that where there was a known defect but no covenant or fraud, the vendee could avail himself of nothing, being presumed to have been compensated for the risk in the collateral advantages of the bargain, 1 and these words have been recently quoted with approbation. 2 § 344. It has however been settled that the absence of a cove- nant and the presence of notice do not together form a conclusive presumption which arises in favor of the defendant's having received a good title for the land from the circumstance of his having, after inspecting it, approved it by accepting the deed conveying it to him, and thereupon giving his bond for the pur- chase money. And if the purchaser took no covenant for his protection, "it goes strongly to prove that he agreed and was satisfied to take the title of the vendor pretty much at his own risk." So in Ross's Appeal, 9 Pa. 497, it was said, quoting the language used in Smith v. Sillyman, 3 Whart. 5S9, that where the defect is known and not provided for, the presump- tion is irresistible, in the absence of express stipulation, that the vendee relied on his own judgment as to the soundness of the title. 1 Lightyy. Shorb, 3 Pa. (old Pa., not Pa. St.) 451. "In Hart v. Porter," said Gibson, C. J., "it was said that where a purchaser knows of a defect or incum- brance at the time of the bargain, with- out stipulating for a covenant or other security against it, he necessarily con- sents to take the risk of it on himself. An intendment to that effect is consist- ent not only with the reality of the trans- action, but witli the analogous principle of Vane v. Lord Barnard, Gilb. Eq. Rep. 6 (supra, p. 87, n.), in which the pur- chaser, having taken an agreement for a special covenant against a contingency that might never happen, was not allowed to detain the purchase money as an addi- tional security, because his consent to rely on the covenant alone was thought to be deducible from the very nature of the transaction. Is not his consent to bear a risk, known to him at the time and not provided against, equally deducible from the nature of the transaction ? Not only 586 every scrivener, but every purchaser, is aware of the value of a covenant, when a defect is known or suspected." In Beidel- man v. Foulk, 5 Watts, 308, the question arose incidentally upon a point of evi- dence. Land which had been the prop- erty of an intestate was, after his death, sold with a covenant of special warranty by five of his heirs to the husband of the sixth, who brought an ejectment for a part of the premises against one who, being in possession, claimed to hold it under a prior deed from the intestate, which he alleged was meant to include that part, but which, on the face of the deed, did not. One of the heirs, being offered as a witness for the plaintiff, was rejected by the court below, on the ground that as the latter had given bonds to his vendors for the purchase money, he would, if he failed to recover the part in contro- versy, be entitled to a deduction for its value, and that the witness was therefore directly interested in the event of the suit. But on writ of error, Kennedy, J., who delivered the opinion of the court, held that under the circumstances the witness would be entitled to recover his full pro- portion of the purchase money, without any deduction whatever, notwithstanding the plaintiff should fail to recover, on the ground that the purchaser having notice of the defect had made no provision against it. And this is in accordance with the principle laid down in Fuhrman v. Loudon, 13 Serg. & Rawle, 386, and affirmed in Lighty v. Shorb, 3 Pa. (old Pa., not Pa. St.) 452, that "when the purchaser is aware of a flaw, and pro- vides not against it, he takes the risk of it on himself." See these cases cited infra, pp. 592, 593. 2 Youngman v. Linn, 52 Pa. 413. § 344.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. presumption that the title was to be at the purchaser's risk. 1 Thus where the defendant, in an action on a mortgage given for the purchase money of land sold with special warranty, offered in evidence a paper signed by the vendor some weeks before the execution of the deed, which stated that it had been represented to him by the defendant that a third party made pretensions to part of the land — that he, the vendor, believed such pretensions to be groundless, yet for the satisfaction of the purchaser he en- gaged to save him harmless, if it should appear that there was any justice in the adverse claim — and then proved a loss of part of the land by ejectments under this claim, and the expenditure of various sums in their defence, it was held that the evidence was properly admitted, notwithstanding it was objected that the execution of the deed, which contained no covenant including the defect, merged all prior articles. Such a decision could not have been made if the purchaser's notice and the absence of a cove- nant were deemed conclusive evidence that he was to run the risk of the title. 2 So it has been said in a later case, " If a purchaser knows of a defect or incumbrance when he takes his deed, without stipulat- ing for a covenant or other security against it, the presumption is that he assumes the risk. Such a presumption is not, however, conclusive, juris et cle jure — it may be rebutted." 3 The result therefore is, that where there is a known defect of title, and no covenant which includes it, the presumption is that 1 Drinker v. Byers, 2 Pa. (old Pa., not said that there may be cases (and Drinker Pa. St. ) 528. v. Byers comes within this class) where * 2 That the eminent judge did not mean the acceptance of a conveyance will be by the expression in Lighty v. Shorb to bat part execution of the articles, as say that where there was notice and no in Colvin v. Schell, 1 Grant's Cas. 226, covenants, the purchaser was estopped from where it was said, " It is argued that the producing evidence to show that he did conveyance showing no warranty against not mean to run the risk of the title, is this injury, there is none. Generally, we clearly shown by the previous case of Seit- presume that the contract to convey is zinger v. Weaver, 1 Rawle, 384, where he merged in the conveyance, but there may said, "The presumption of law is that be incidental covenants that are not so the acceptance of a deed in pursuance of merged. In this contract to convey there articles is a satisfaction of all previous is a covenant against this very injury, and covenants, and where the conveyance con- it is found that the grantee in accepting tains none of the usual covenants the law the deed did not intend to relinquish it, supposes that the grantee agreed to take and it is not meTged." the title at his risk, or else that he would 3 Thomas v. Harris, 43 Pa. 231, citing have rejected it altogether." It is then Lighty v. Shorb and Drinker v. Byers. 587 § 345.] the purchaser's right at law [chap. XIV. the purchaser agreed to run the risk of the title, 1 but this pre- sumption is not so conclusive as to exclude evidence to the contrary. § 3-45. But it would seem to have been also held, that where there is a pecuniary incumbrance, of an amount less than that of the purchase money, and payable before or at the time when the purchase money ought to be paid, no such presumption arises, and the burden of proof rests upon the vendor to show that the incumbrance was intended to be in addition to the consideration named in the deed, and that the purchaser took the land cum onere. Such was the decision in Wolbert v. Lucas, 2 where, the plain- tiff having issued a scire facias to recover the balance due on a mortgage given by the defendant for the purchase money of land conveyed to her with special warranty, the latter proved a mortgage given by a former owner, which had been compulsorily paid off by her, in instalments, since the execution of the deed, and produced a witness who swore that at the time of mak- ing the contract, the mortgage to be given by her to the plaintiff, being for the full value of the land, formed the whole considera- tion of the purchase. On the other hand, the plaintiff produced a witness who swore that the contract was that the defendant would pay the paramount mortgage — that she would be respon- sible for it, and would take it on herself. 3 The court below charged the jury that the only question was whether the defend- ant knew of the paramount mortgage at the time she purchased ; for if she did, she could not claim allowance for payments made by her on that account, there being no fraud or covenant. The jury having found for the plaintiff, the Supreme Court reversed the judgment, and held that if the defendant bought the premises for the amount of the mortgage given by her to the plaintiff, and that was the whole consideration, she ought not to pay more than she contracted for ; and if there was more to pay than her deed called for, the plaintiff was bound to show it satisfactorily to the jury. 4 1 Quoted and approved in Speakman call the words of Gibson, C. J., heretofore v. Forepaugh, 44 Pa. 363, which however cited, supra, p. 579, n. 1. was the case of an executory agreement. 4 The court then went further, and 2 jo Pa. 73. added that under the evidence the defend- 8 The student may naturally here re- ant should have had the instruction of the 588 § 345.] TO DETAIN PURCHASE MONET, ETC. [CHAP. XIV. The charge of the court below doubtless proceeded upon the language used in a previous case, that " if there was a known defect, but no covenant or fraud, the vendee could avail himself of nothing ; " l and if the Supreme Court had modified this direc- tion by holding that these circumstances cast upon the purchaser the burden of proving that he did not intend to run the risk of the incumbrance, the decision would perhaps have followed the cases which have just been cited. But it is obvious that it went beyond these cases, and would seem to introduce the rule that where there is notice of a pecuniary incumbrance and no covenant, these circumstances, which elsewhere would be conclusive against the purchaser, do not in Pennsylvania even raise a prima facie pre- sumption against his right to detain the purchase money, and where the evidence is contradictory, the question as to the terms of the contract is not to be left to the jury as a question of fact, but the purchaser is, in every case, entitled to detain, unless his vendor can show satisfactorily that he agreed not to do so. This decision therefore, if capable of being supported at all, must rest upon the ground that a distinction exists between a de- fect of title and a pecuniary incumbrance, and as in an executory contract the purchaser has an undoubted right either to have incumbrances paid off by his vendor, or to discharge them him- self and deduct the amount thus paid from that of the purchase courtfin her favor, and a credit for all pay- Forster v. Gillam, 13 Pa. 340, turned upon nients made by her under the paramount misrepresentation by the vendor ; there was mortgage. A fuller statement of the facts a defect of title, and Burnside, J., who had of this case than appears in the report was also delivered the opinion in Wolbert v. given in the fourth edition of this treatise, Lucas, said, " A special warranty does not p. 633. The cases, however, cited in the prevent a vendee from setting up a defence opinion were not similar in their circum- to the unpaid portion of the purchase stances to Wolbert v. Lucas. In Christy v. money, and in such a case the onus lies on Reynolds, 16 Serg. & Rawle, 258, and Tod the vendor to show he bought at his own v. Gallagher, id. 261, the incumbrances risk." This, it is apprehended, he can in were covered by the covenants. In Poke v. general do by merely proving notice on the Kelly, 13 id. 165, no deed seems to have part of the purchaser ; and if the latter been executed, and if there were one, it has taken no covenant, the presumption must, under the terms of the contract, arising from the presence of notice and the have contained a general warranty. In absence of a covenant is such as to throw Withers v. Atkinson, 1 Watts, 236, the on the purchaser, in turn, the burden of purchaser was ignorant of the incum- proving that he did not intend to run the brances, relying on the vendor's statement risk of the title. that "there was not a judgment against 1 Lighty v. Shorb ; see also Wilson v. him under the canopy of heaven ;" the in- Cochran, 46 Pa. 230, infra, § 348; Young* cumbrances, moreover, had been all re- man v. Linn, 52 id. 413. moved by the vendor before the trial. 589 § 345.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV. money, so this doctrine must, it would seem, be applied to an executed contract, irrespectively of the terms in which it is ex- pressed ; and that although the purchaser's right, while the con- tract is executory, applies as well to known defects of title as it does to pecuniary incumbrances, yet the former, being insus- ceptible of definite valuation, are not thus to be presumed to have been excepted from the consideration. 1 the time of the purchase Marshall & Kellog knew of these judgments and consulted counsel, who advised they were not liens ; and Bell, J., who delivered the opinion, said, " Marshall means that at the time of their contract with Lyman his firm had notice on the judgments recovered against Patterson, hut not deeming them to be liens on the land, he disregarded them. It is obvious from this that neither of the parties imagined that Lyman had engaged to warrant his vendee's title, either to the land or the fixtures. Marshall & Kellog undertook to decide for themselves whether the judgments were or were not incum- brances ; and never dreamed of looking to Lyman to guarantee them against a mis- take in this particular. But apart from the direct proof, the nature of the transac- tion shows this to have been so. The case presents the uncontradicted fact that Mar- shall & Kellog were to take the place of Lyman. As already said, Lyman intended to do nothing more than to transfer to them his interest, whatever it was, in the con- tract. Why then should he be made an- swerable for incumbrances not suffered by him, any more than for a defect of title ? The very character of the agreement repels such an idea, as is shown authoritatively in Smith v. Sillyman, 3 Whart. 598. In that case, where there was a similar arrange- ment, it is truly said that the presumption is irresistible, in the absence of express stip- ulation, that the vendee relied on his own judgment as to the soundness of the title. The same presumption is applicable to an incumbrance. Such an agreement amounts to a declaration by the vendee that he takes the property just as his vendor received and held it, and subject to all defects or hin- drances not created by the latter." See Smith v. Sillyman, infra, p. 593, n. 4. It may be difficult to reconcile some of the expressions in the cases ; but in these, 1 Such a distinction was expressly taken by the court. " This is not like the case of Lighty v. Shorb, so much relied on. There the defect was on the face of the title purchased by the defendant, and the maxim of caveat emptor entered. Equity would not interfere, because it would have been changing the terms of the bargain. This case is very different. Here the plain- tiff sold one third of the premises for the consideration of $3,000, the price he asked for the estate, and for which she gave her mortgage." It ought to be distinctly ob- served that in Lighty v. Shorb the defect was covered by the covenants. See infra, p. 593. It seems impossible that the decision of the court in Wolbert v. Lucas could in any way have proceeded upon the ground that the consideration named in the deed was conclusive evidence of its amount, as such is neither the law of Pennsylvania nor does it generally prevail in this country. See the cases cited supra, § 173. The case of Ross's Appeal, 9 Pa. 491, which was decided but a few weeks before Wolbert v. Lucas, may also be referred to in this connection. Patterson, having agreed to purchase a tract of land, entered upon it and partially built a furnace. He afterwards agreed to transfer his interest to Lyman, who was to succeed to all his liabilities for the purchase money, and who subsequently, by a verbal arrangement, transferred to Marshall & Kellog all his interest in the land, and made a bill of sale to them of the fixtures. Lyman and Marshall & Kellog, both having subse- quently made assignments for benefit of creditors, the assignee of the former claimed a dividend out of the estate of the latter, which was resisted on the ground that there were judgments against Patterson which wnc liens on the fixtures sold by Lyman. But it was also proved that at 590 § 34C] TO DETAIN PURCHASE MONEY, ETC. [('HAP. XIV. § 346. It has however been more recently decided, and upon great apparent soundness of principle, that the doctrine of this case will not apply where the security for the purchase money upon which the suit is brought is given by the purchaser after he acquires notice of the existence of the incumbrance. 1 as in many other instances, the student may recur to the apt language of Gibson, C. J. : " From a series of cases, the law has become a series of principles ; and to keep them in harmony with each Other will con- duce more to safety and certainty than would an implicit obedience in every case to precedent." Good v. Mylin, 8 Pa. 55. i Lukens v. Jones, 4 Phila. 18. "The action in this case," said Hare, J., who delivered the opinion, "was on a note given for the purchase money of land ; the de- fence, an outstanding ground-rent alleged, and so far as the testimony of the witnesses examined for the defendant went proved not to have been known at the time of the purchase. The defendant requested the judge before whom the cause was tried, to instruct the jury that the verdict must be for the defendant, in consequence of this defect of title. This request was granted, but with the proviso that the jury might look at the note which had been given for the purchase money and take its date, which was subsequent to the period at which the knowledge of the ground-rent came to the defendant, into consideration in finding their verdict ; and the only question now before us is whether there was error in the instruction thus given. "Looking at the matter on principle, attid apart from precedent, it would seem very obvious that a promise by a purchaser to pay a sum certain, after a defect in or charge upon the tiling purchased brought to his notice, is evidence that he bought subject to the defect, or had no right to set it up as a reason for not fulfilling his promise. In speaking of it as evidence, I use the word as distinguished from abso- lute proof, and mean to speak of it as that which, though far from conclusive, cannot be withdrawn without error from the con- sideration of the jury. It is however said that the case of Wolhert v. Lucas, 10 Pa. 73. establishes the opposite doctrine ; that knowledge of an incumbrance at the time of receiving a deed for land which has been purchased, and agreeing to pay the price, is no reason why it should not be set up as a defence subsequently to a suit for the purchase money. If we look at the decision in that case, apart from the lan- guage of the judge who delivered the opin- ion, we shall find that the only point actually before the Supreme Court was whether the court below were right in the position that notice of an incumbrance at the time of buying precludes the right to deduct it afterwards from the purchase money, and that everything in the opinion which goes beyond this, and to the point that the jury should have been told per- emptorily to find for the purchaser, may be regarded as having, more or less, the character of a dictum. But even if this be not so, and if Wolbert v. Lucas is to be regarded as establishing the general proposition that a man who agrees to give $10,000 for a house, and consummates the agreement by accepting a deed, with full knowledge that he is buying it subject to a mortgage for $8,000, can afterwards plead the mortgage as a defence to a suit for the purchase money, it can only be because the law will, under these circum- stances, imply a promise by the vendor to pay off or satisfy the mortgage within a reasonable period, and consequently regards the vendee as entitled to treat its contin- ued existence as a breach of contract, which may be set up by way of recoupment or defalcation. Seen in this aspect, the ex- treme position assumed in Wolbert v. Lucas may be reconciled with logic, if not with reason ; but it ceases to be applicable to a case like the present, where the note was given for the whole amount of the pur- chase money long after the sale, and con- sequently tended to negative the idea that the purchaser was entitled to rely on the failure of the seller to extinguish the in- cumbrance as a default, or as giving any right to an abatement of the price. But 591 347.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV. § 347. Third. While on the one hand the absence of a covenant which covers a defect of which the purchaser has notice raises a presumption that he intended to run the risk of it, so on the other hand, where the purchaser has notice of either a defect or incum- brance and there is a covenant which includes it, the presumption arises that the covenant was expressly taken for protection against it, and the purchase money cannot be detained unless the covenant has been broken ; * in other words, as has been clearly stated, " the purchaser shall be bound to perform his engagement wherever his knoivledge and the state of facts continue to be the same as they were, at the time of the conveyance.'''' 2 Thus where the plaintiff had conveyed to the defendant a tract of land devised to him by his father, with a covenant of warranty against each and all the however this may be, and whether a promise to pay a specific sum of money, with full knowledge of a defect of title, is or is not evidence that the promisor be- lieved himself, and might therefore reason- ably be presumed by others, to be without right to rely on the defect as a reason for not performing his promise, there is another ground on which such a promise cannot be withheld from the jury, without error at all events, when it is, as in the present instance, put in the form of a prom- issory note payable in futuro, and conse- quently carries with it a new consideration iu the shape of a postponement of the antecedent liability. For nothing is, as a general rule, better settled than that every ground of defence or objection to the per- formance of a contract is within the domin- ion of the party who is entitled to make it, and may be released or abandoned by him at pleasure, in obedience to the well- known maxim, Quisquis potest renun- ciare juri pro se introducto. It is indeed said in Jackson v. Summerville, 13 Pa. 359, that actual fraud forms an exception to the operation of this principle, and can- not be cured, nor the right of avoidance given by it waived or extinguished, by any subsequent act or agreement on the part of the party defrauded. How this is to be reconciled with the proposition, of which the books are full, that sales vitiated by fraud are voidable only, not void ; that the fraud cannot be set up as against an innocent purchaser, nor 592 even as between the original parties with- out restoring the consideration, and that no grossness or falsehood on the part of the seller will authorize the buyer to re- cover back the price on any other terms than those of restoring the property for which it is an equivalent, falls beyond the sphere of my functions to determine ; nor need I inquire whether it was meant to assert that a man who has been injured by a fraud cannot put an end to his right to sue by executing a release under seal or accept- ing satisfaction in pais. For the case now before us is not a case of fraud, but of fail- ure of consideration, and the cases of Duncan v. McCullough, 4 Serg. & Rawle, 485, and Chamberlain v. McLurg, 8 Watts & Serg. 36, expressly distinguish between such cases and those where the fraud is actual, and hold that the former may be confirmed subsequently, whatever may be the rule with regard to the latter. The ob- jection that the waiver was without any new consideration has already been an- swered, and the result of the whole is that the rule which has been granted for a new trial must be discharged." 1 Youngman v. Linn, 52 Pa. 413. - Per Gibson, C. J. , in Lighty v. Shorb, 3 Pa. (old Pa., not Pa. St.) 447, which was said in Murphy v. Richardson, 28 Pa. 293, to be " the best summary of the cases that has been given." And see Horbach v. Gray, 8 Watts, 497 ; Ives v. Niles, 5 id. 328; Wilson v. Cochran, 46 Pa. 230 ; s. c. 48 id. 107. § 847.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. heirs of the father and all other persons, the purchaser, in an action against him for the purchase money, set up as a defence that the land was subject to certain legacies charged upon it by the father of the vendor, and requested the court to charge that if the jury believed these legacies were unpaid, he was entitled to a deduction for the amount of them ; but the court charged that where the incumbrances, with all the circumstances attending them, were known to both vendor and vendee, and the latter took from the former a deed warranting particularly against those in- cumbrances, it was no defence to payment of the purchase money to say that the incumbrance was still subsisting, and it was left to the jury to determine whether both parties knew of these leg- acies charged upon the land, and whether any circumstance had occurred rendering the situation of the defendant more perilous than at the time of giving his bonds for the purchase money, and this direction the Supreme Court held to be correct. 1 So where a recital showed that the title to the land was in the wife of the patentee, who after her death conveyed it to two of his daughters and their husbands, who in turn conveyed to the vendor, giving the bond of the patentee as a security for the title, which bond was handed to the defendant when he purchased and took a deed with general warranty, 2 it was held that it was impossible to doubt 3 that the mutual understanding was that the purchase money was not to be detained as a security for the title. 4 So where the ven- 1 Fulirman v. Loudon, 13 Serg. & 4 It was said, moreover, that the mer- Rawle, 386. So iu Stroheeker v. Housel, cantile character of the security given for 5 Pa. Law Jour. 327, the court charged, the purchase money, a draft of one of the " If the jury believe that the eviction and partner vendees in the firm at twenty- two all the facts connected with it were known days, sufficiently attested that nothing to Housel before he bought of Stroheeker, but punctual and prompt payment was and that he took the warranty in his considered to stand with the contract. So deed for the purpose of protecting himself in Smith v. Sillyman, 3 Whart. 589, a against any eviction in consequence of the vendor entered into articles to sell certain right of entry arising to Garber's heirs by land to one who assigned the articles to virtue of that eviction, and believe further the plaintiff, who entered into articles with that nothing has occurred since the pur- the defendants, in which it was provided chase to render the condition of Housel that the first payment of the purchase more perilous than it was before and at money was not to be made to the plaintiff the time, he purchased, then his defence is until they were fully satisfied as to the not sustained upon equitable principles." title. A deed was afterwards executed, 2 Lighty v. Shorb, 3 Pa. (old Pa., not with general warranty, by the original Pa. St. ) 447. vendor to one of the defendants, who, it 8 In the absence, it is presumed, of was held, could not in an action brought evidence to the contrary. by the plaintiff to recover the purchase 38 593 § 348.] the purchaser's right at law [chap. XIV. dee accepted a conveyance which referred, by a recital, to a trust deed, giving its date and record, it was held that, in the absence of evidence to the contrary, the purchaser must be considered to have had notice of the trusts in the deed, and to have protected himself against them by the covenant for quiet enjoyment. 1 So where it appeared that the defendant, on making the purchase, was informed of an outstanding claim, and then took a deed with general warranty, it was held that his remedy must be upon his covenant, and that he could not detain the purchase money. 2 St it has been said that a vendee who takes a covenant against a known defect in the title shall not detain the purchase money as a further security against it, for the reason that the covenant would be nugatory if he did. 3 § 348. The rule that " the purchaser shall be bound to perform his engagements wherever his knowledge and the state of facts continue to be the same as they were at the time of the convey- ance," is nowhere better shown than by the case of Wilson v. Coch- ran, 4 which, when first presented in the Supreme Court, came up on error from a judgment entered below for want of a sufficient affidavit of defence. In an action on a bond for the purchase money of land which had been conveyed with a covenant of general warranty, the defendant in his affidavit alleged an eviction from part of the premises by reason of the existence and exercise of a paramount right of way by a third person claiming under a grant money due him set up as a defence that of the parties, and in an action to recover the title was defective, in consequence of the purchase money the defendant set up which they failed in an attempt to recover (besides an allegation of fraud) the exist- the land by ejectment. ence of these charges and a quit-rent, 1 Kerr v. Kitchen, 17 Pa. 433. See the which he contended had prevented him case of Murphy v. Richardson, 28 id. 293, from reselling, which was the special ob- supra, p. 584. ject of his purchase. Under the charge of 2 Bradford v. Potts, 9 Pa. 37. the court, whose judgment was affirmed 8 Juvenal v. Jackson, 14 Pa. 519. In on error, the jury made a deduction for Share v. Anderson, 7 Serg. & Rawle, 43, the amount of the outstanding charges, the vendor's title was subject to a charge and also such arrearages of quit-rent as in favor of his mother and sisters. At should be then due. "These, as being a the time of making the contract of sale, he present charge, were properly a subject of promised the purchaser that he would pro- defence, on the same gi-ound as the liens cure releases of these charges, but not be- created by the proceedings in the Orphans' ing able to do so, the deed was executed Court were allowed, but the vendee could with a covenant to indemnify against all not retain to meet charges accruing after- estates, charges, incumbrances, etc., and a wards." covenant of general warranty. Releases 4 46 Pa. 229. were afterwards obtained from all but two 594 § 348.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. from the purchaser's vendor. The court below entered judgment for the plaintiff, but this was reversed by the Supreme Court, which held that this right of way was a breach of the covenant of general warranty, and such an eviction as entitled the covenantee to dam- ages ; * the court below had, therefore, erred in not allowing him to recover them in this action, and the judgment was reversed and a procedendo awarded. Upon the subsequent trial, it ap- peared that the defendant had purchased with express knowledge of the right of way, and the jury having found for the plaintiff (the vendor), this was sustained on error, and it was held that as the defendant had notice, the legal presumption was that he had already been compensated by reason of having paid a dimin- ished price for the land. 2 It may be observed of this well-decided case, that while the court say expressly that the existence and user of a paramount right of way was a breach of the covenant of warranty when the purchaser had no notice of it, yet that nevertheless this would not constitute an eviction when the purchaser had such notice ; but this is hardly the correct manner of stating the proposition, for in both cases he is equally evicted, and none the less so by reason of his knowledge, but in the latter instance he is not allowed to 1 See supra, § 79. knowledge and the state of facts continue 2 48 Pa. 107. " The case as now pre- to be the same they were at the date of the sented, therefore," said the court, " is that purchase. ... If the defendant bought of a purchaser with a covenant of general with the road open before his eyes, (and warranty attempting to detain purchase the necessary inference is that he intended money on account of a known incum- to buy subject to the easement,) the mere brance or defect. We were of opinion enjoyment of the road is not and cannot when the case was here before, and we be an eviction. He has got all that he still are, that a covenant of general war- bargained for with his vendor, and there- ranty would embrace such a defect, though fore he should pay as he agreed. Until he it be in the nature of an incorporeal here- is interrupted in something conveyed to ditament, but manifestly no action could him by his vendor, and he knew the latter be maintained on such a covenant, and could not convey the road, he has no rem- therefore purchase money cannot be de- edy on the covenant he took for his pro- tained by virtue of it, until after eviction, tection, and therefore no right to detain and the evidence here failed to prove evic- purchase money." tion. Indeed, there could be no eviction If it be desired to distinguish this de- of that which was never purchased or pos- cision from Wolbert v. Lucas, it may, per- sessed, and therefore whilst a right of way haps, be thought that a distinction exists successfully asserted against a vendee might between a pecuniary incumbrance payable be a breach of a covenant of general war- before the purchase money fell due, and ranty if the purchaser had bought without such an incumbrance as a road or other notice of it, yet the law is that he shall easement, perform his engagements whenever hia 595 § 351.] the purchaser's right at law [chap. XIV. detain the purchase money, for the reason that the possible asser- tion of the paramount right constituted one of the elements of the contract and was within the intention of both parties when the deed was made. § 349. But the very fact of the correct application of the Penn- sylvania doctrine in this case demonstrates its want of logic. For if the purchaser, instead of using his covenant as a defence, had paid his purchase money and sued on the covenant, his mere knowledge of the existence of the incumbrance would, according to a cloud of authorities, have been no bar to his recovery, 1 and there are, therefore, two peculiarities of the doctrine ; first, that under some circumstances the purchaser has greater rights as a defendant than he would have as a plaintiff, and secondly, that under other circumstances he has greater rights as a plaintiff than as a defendant. § 350. Where, however, the covenant is actually broken at the time of the suit brought to recover the purchase money, the pur- chaser will, on the general principles already referred to, 2 and for the purpose of preventing circuity of action, be entitled to detain the purchase money to the extent to which he would be at that time entitled to recover damages upon the covenant, 3 and he is not in such case obliged to restore the possession to his vendor before or at the time of availing himself of such a defence. 4 § 351. But when the purchaser's covenant is not thus actually broken, in other words, when he seeks to resist the payment of the purchase money upon the Pennsylvania equitable doctrine which we have been considering, it has been held that in cases where that purchase money is secured by a mortgage of the premises, upon which the vendor makes no personal demand against the purchaser, 1 Supra, § 88. That is to say, his Steinhauer v. "Witman, but the case would mere knowledge would not. But whether probably have been similarly decided in the right of way did or did not enter as an any court, as the deed contained a general element into the contract might perhaps, warranty, and the purchaser had never according to some authorities, have been been able to get the possession, which is the subject of proof. Supra, pp. 94, 95, in general held to be a constructive evic- 107, 108. tion ; supra, § 139. So in Poyntell v. 2 Supra, § 334. Spencer, supra, the purchaser had, to pre- 3 Morris r. Buckley, 11 Serg. & T.awle, vent an actual eviction, taken a lease 168; Christy ". Reynolds, 16 id. 258; under the paramount title, which had Todd v. Gallagher, id. 261 ; Ives v. Niles, been established by a judgment, of which 5 "Watts, 323 ; Poyntell v. Spencer, 6 Pa. his vendor, who had sold with general 257. Morris v. Buckley was said by the warranty, had notice. court to come within the principle of 4 Poyntell v. Spencer, 6 Pa. 256. 596 § 352.] TO DETAIN PURCHASE MONEY, ETC. [(HAP. XIV. but merely asks, in default of payment of the consideration money, the restoration of the property conveyed, the purchaser must either pay the purchase money or restore the possession to the person from whom he received it. 1 And it is apprehended that this result would not be affected by the fact that the purchaser had already paid a portion of the consideration money, for it will he remem- bered that as respects so much of the purchase money as has been already paid the law of Pennsylvania is the same as it is else- where 2 — there is merely a locus penitentice as to so much as is unpaid. This, however, would not apply either in cases where the covenant was actually broken, or where the purchase money was secured by a bond or note, upon which the recovery would fasten upon the purchaser a personal liability. § 352. Before leaving this subject, it seems proper to consider the rights of the purchaser in cases where the consideration of the purchase is an annual ground-rent, instead of a gross sum. 3 It is 1 Hersey v . Turbett, 27 Pa. 424. "The defence," said Lewis, C. J., who delivered the opinion, " rests upon a defect in the title to the premises which will be noticed hereafter. The general rule is that when- ever a defendant enters into possession of land under a contract with the plaintiff for the purchase of it, he will not be per- mitted to set up an independent title to protect a hostile possession. He must either pay the purchase money or restore the possession to the person from whom he received it. . . . This principle applies with peculiar force in an action in which the plaintiff makes no personal demand upon the defendant, but merely asks in default of payment of the consideration money the restoration of the property con- veyed. A scire facias on a mortgage is an action of this character. It makes no per- sonal demand on the mortgagor. He is not even liable for the costs of the suit. The judgment is de terris. It is to be levied exclusively on the mortgaged prem- ises, and the sale conveys no further term or estate to the purchaser than the lands shall appear to be mortgaged for. See act of 1705, § 8, 1 Sm. 61. If neither vendor nor vendee had any title at the time of the mortgage, the latter could by no pos- sibility pledge any title to the mortgage. It is true that equitable circumstances might exist which would call for the ap- plication of the principle that a title sub- sequently acquired by a vendor inures to the benefit of the vendee. This principle might apply in the case of a loan of money obtained on the faith of a representation that the mortgagor had an indefeasible estate in the premises granted in mortgage as a security for the money. But it can have no place where the mortgage is given merely as security for the purchase money, to be paid for the premises mortgaged. The purchaser at the sheriff's sale under such a mortgage gets no better or other estate than the mortgagor had in the premises at the execution of the mortgage. It would therefore be unjust, as a general rule, to involve the mortgagee in a dis- pute about the title, in a proceeding which only gives him or the purchaser under his judgment a right to try the title in a sub- sequent action for the land." 2 Supra, § 335. 3 See supra, § 170. The number of re- ported cases as to this is, it will be seen, very small. In Brown v. Dirkerson, 12 Pa. 372, supra, p. 192, the question was as to breach of covenant. In Juvenal v. Jack- son, 14 id. 519, the question turned prin- cipally upon whether the purchaser was entitled to the defence at all, as was also the case in Spear v. Allison, 20 id. 200. 597 § 852.] the purchaser's right at law [chap. XIV. sufficiently evident that the different form which the consideration money assumes should not deprive the purchaser of a defence in cases in which he would otherwise be entitled to it ; for, as has been said, " the continuance of the rent, and the payment of it, depend entirely upon the right of the grantee to the future enjoy- ment of the land under the title conveyed to him by the grantor, to whom and whose assigns the rent is to be paid ; " * and as was more recently said, " a sale on ground-rent differs from an or- dinary sale only in this, that the consideration in the first is an annual sum perpetually charged on the land, instead of a gross sum paid or secured, as in the second." 2 In the class of cases lastly referred to, viz. where the defect or incumbrance is covered by the covenants for title which the pur- chaser has received, and they are broken at the time of suit brought, it has been seen that the latter can, upon general principles, detain the purchase money to the extent of the damages to which he would be then entitled if he were suing as plaintiff for a breach of the covenants. Where, however, the consideration is a ground- rent, the amount of these damages would probably, in most cases, exceed that of the annual rent, and under these circumstances it is apprehended that unless the defect of title or incumbrance went so far as totally to defeat the entire estate conveyed, the defendant would be entitled, under the Pennsylvania statute of set-off, 3 to a certificate in his favor for the excess of these damages over the amount of ground-rent claimed by the plaintiff. Where, however, the defect of title or incumbrance had totally defeated the entire estate, it is conceived that such a result would simply work a com- plete extinguishment of the ground-rent. These results, however, it should be again observed, must, it is conceived, be confined to cases where the defect or incumbrance is covered by the covenants, and the latter are actually broken. 4 1 Franeiscus v. Reigart, 4 Watts, 116, better title, as well as the costs of the per Kennedy, J.; and see also Ingersoll ejectment," which was held bad on de- v. Sergeant, 1 Whart. 357. murrer, for the court said, "There was 2 Juvenal v. Jackson, supra, per Gib- here no covenant of general warranty nor son, C. J. for quiet enjoyment except as against per- 8 The statute of 1705, I Purdon's Dig. sons claiming under the grantor. Pur- 603, pi. 1 (ed. 1885). chase money cannot be recovered back for 4 Thus in Garrison v. Moore, 1 Phila. defect in the title, unless there was fraud 282, one of the defendant's pleas " al- or warranty. The same principles which leged that he had been obliged to pay govern an action must apply to a set-off, a large sum of money for the prior and and as neither fraud nor warranty is al- 598 § 352.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. Where, however, such is not the case, and the defence is, under the peculiar doctrine of the Pennsylvania decisions, 1 an equitable one, resting upon failure of consideration, although there can be no certificate found in favor of the defendant, yet he will, it is apprehended, be entitled to defend from payment of the ground- rent, within the limits defined in the classes of cases already re- ferred to, 2 so long as the defect or incumbrance remains. " If," as has been said, " the grantor of the land, his heirs or assigns, be evicted and deprived of the enjoyment of the land by any one having a title paramount, the rent ceases and becomes extinct." 3 So where there is an eviction of a specific part of the premises, the rent will be apportioned pro tanto.^ And if the purchaser have removed the defect or incumbrance, or be otherwise entitled to the equitable defence referred to, it is conceived that he would be entitled to detain the ground-rent for successive years, until its arrearages should be equal to the amount of his loss. 5 leged, the matter contained in the plea cannot be available to the defendant as a set-off to the plaintiff's claim in this ac- tion." See also the distinction between a cross demand and failure of consideration, noticed in Good v. Good, 9 Watts, 572, infra. 1 Supra, § 335 el seq. 2 Supra, §§ 170-188. 8 Franciscus v. Reigart, supra, p. 598, per Kennedy, J. * Garrison v. Moore, sxipra. " We are of opinion," said the court, "that the second plea, of an eviction by a prior and better title from three tenths of the de- mised premises, is, pro tanto, a defence to an action for the rent, which in such case ought to be apportioned." 5 See as to this the case of Good v. Good, 9 Watts, 567, explained in 3 Watts & Serg. 472. The purchase money was there secured by seren bonds and a prom- issory note. In an action on the first of the bonds, the purchaser established a fail- ure of consideration as to part of the land, and also claimed a set-off for the services rendered to the vendor to an extent ex- ceeding the amount of the bond, and the jury found a general verdict for hiin. In a subsequent action on another of the bonds and the note, the defendant rested upon the same grounds, and the plaintiff urged that the evidence of the recovery by the defendant in the previous suit, and the grounds on which it was based, was a bar to the allowance of the same defence in a subsequent suit, but the court below decided otherwise, and the jury found for the defendant, and certified that there was due him from the plaintiff $2, 500 over and above the amount claimed by the latter. The judgment was however reversed by the Supreme Court, which held that as re- spects the set-off, that must be presumed to have been passed upon by the former jury, "who must be deemed to have sus- tained the bond in the first instance, hold- ing it to be satisfied by the set-off and no more. As to what was properly cross demand, therefore, the defendant was con- cluded ; but we must be careful to distin- guish it from what was properly failure of consideration. As a ground of demand, the one is legal and independent of the plaintiff's cause of action ; the other is equitable, inherent in all the securities founded on the same consideration, and therefore applicable to successive actions on any of them, till the defendant is com- pensated by defalcation to the extent of the loss. In this instance the defendant claimed the promise of his compensation for personal services and damages, for a breach of a covenant that a particular es- 599 § 353.] THE PURCHASER'S RIGHT AT LAW [CHAP. XIV. It is hardly necessary to repeat that the preceding cases in Pennsylvania must, with the exception of this last class, be re- garded as exclusively local in their application. § 353. In Texas, all distinction between law and equity has been abolished by the Constitution. 1 In an early case in that State, the defendant, in an action for the purchase money of real estate which had been conveyed to his ancestor by the plaintiff, pleaded a total failure of title but did not aver an eviction, and the court, in recognizing and following the authority of the de- cisions in South Carolina and Pennsylvania, said, " The vendee must, by competent and sufficient evidence, establish the existence and validity of the outstanding title, but when that is done there is no reason why his remedy should be delayed until disturbed in the enjoyment of the land, and this even when the defendant is in possession." 2 The leading case however in that State is Cooper tate of dower in the land had been released, and they were settled in the previous ac- tion at what they were worth. But for failure of consideration the defendant is entitled, on the whole, to a deduction equal to the average value of the acres lost, determined by the price originally stipulated, . . . and he is entitled to an allowance in this action for any part of it which has not been allowed him before." When the case went down again for trial, the court below conceived that in the proper application of these remarks the failure of consideration must be appor- tioned among the securities ratably, and directed the jury accordingly, but this judgment was reversed on error (3 Watts & Serg. 472), and it was said, per curiam, that the effort of the judge who delivered the former opinion was "merely to dis- tinguish between the remedy for want of consideration and the remedy for cross demand — not to establish a principle of apportionment, in a case involving the latter, between distinct securities for dif- ferent parts of the original debt. The case did not call for it. It was indeed said that want of consideration furnishes a defence which is inherent in all the se- curities till full compensation for it be attained by defalcation ; and so indeed it is, so far as to dispense with a certificate of balance where the amount to be defal- 600 cated exceeds the sum sued for. . . . The principle of pro rata distribution of defal- cation for failure of consideration among all the securities is one which this court did not mean to establish." 1 Texas Constitution of 1875, art. 5, § 8. The provision was the same in the earlier constitutions. 2 Tarpley v. Poage, 2 Tex. 139. " On what ground," said the court, "could proof of the defence set up in the answer be refused ? It may possibly have been on the ground (and this supposition re- ceives some countenance from the argu- ment of the appellant in this court) that the defendant had not been judicially ejected from the premises, and that until eviction the defence was unavailable. But why should the defendant be postponed until actual eviction, when redress would very frequently be hopeless ? Where the vendor has impliedly or expressly war- ranted his authority to sell, and it appear afterward that his title is intrinsically de- fective, or there is sufficient evidence of a valid subsisting outstanding title in others, it would operate with great injustice to compel the purchaser to pay the purchase money, and then, after final eviction conse- quent on a harassing litigation of the title, to institute a new action on the covenants of the conveyance against the vendor." § 353.] TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. v. Singleton, where, in an action on a note given for the purchase money of land which had been conveyed with a covenant of general warranty, the defendant pleaded an outstanding title as to one half thereof, but did not allege that an eviction had either taken place or was threatened, and upon demurrer the court held, after com- menting upon the Pennsylvania cases, 2 that such allegation was not necessary, for " where there was clearly no title in the vendor, the purchaser is not compelled to pay and then after eviction seek his remedy on the covenants of his deed;" but it was also held that the vendee must clearly prove the existence of the outstanding- title and his own want of knowledge of the defect at the time of his purchase, and as the plea was not sufficiently certain in these respects the demurrer was sustained, 3 and it was further said, that in the case of a total or partial failure of title, the vendee should offer to reconvey the land, or that portion of it to which the title had failed. 4 This case has been consistently followed, and it is well settled in 1 19 Tex. 260. 2 Supra, § 335 et seq. 3 "After the title has been passed," said the court, "and the deed executed, the purchaser cannot, according to the doctrine in England and in most of the States, resist the payment of the purchase money on the ground merely of defect or failure in the title. Where there have been no fraudulent representations on the part of the vendor as to the title, the general rule is that the vendee under a deed must pay the purchase money, and rely upon the covenants in his warranty for redress ; and if there be no fraud and no covenants, he is not entitled to any relief. But such is not the rule as recognized by the courts of this State. The doctrine in Tarpley v. Poage, 2 Tex. 139, is to the effect that though there may be a deed with cove- nants of warranty, yet the vendee may re- sist the payment of the purchase money in cases where the title has turned out to be wholly defective, or there be a valid outstanding title in others ; that where there clearly was no title in the vendor, the purchaser is not compelled to pay, and then, after eviction, seek his remedy on the covenants of his deed, especially where the vendor is or may probably be insolvent or beyond the reach of the court. The rule in that case is not upon the ground of fraud in the vendor, but of such failure of title as exposes the vendee to danger, or in fact to the certainty of eviction. The plea in the case on hand avers the title of the vendor to be defective, but does not state when that fact came to his knowl- edge. He alleges merely defect of title, and he certainly should aver, in order to show that he has equity, that he did not know of the defect at the time of sale. If he be exempted from the necessity of abid- ing eviction, and then resorting to his covenants, he should aver such facts as would in equity and justice entitle him to relief ; . . . and if he have a deed with warranty, he ought not to be released from payment, unless in case of fraud on the part of the vendor, or of defect in the title not known to the vendee at the time of sale. He cannot be required to prove a negative, but he can prove the facts and circumstances of the sale, and if from these no inferences arise that the purchase was to be at his risk, and no proof estab- lishing such fact is offered by the vendor- he ought to be let into his defence." 4 See Demaret v. Bennett, 29 Tex. 263, and infra, Ch. XV. 601 § 353.] RIGHT TO DETAIN PURCHASE MONEY, ETC. [CHAP. XIV. that State that a vendee may, before eviction, detain the unpaid purchase money whenever there has been a total or partial failure of title, but in order to entitle him to this relief he must prove beyond doubt that there is a paramount title under which he is liable to be evicted, 1 and it must also clearly appear that he was ignorant of its existence until after the delivery of his deed, 2 for if he purchased with knowledge of the defect, he will be compelled to await an eviction and then rely upon the covenants. 3 1 Woodward v. Rodgers, 20 Tex. 176 ; Cook v. Jackson, id. 209 ; Johnson v. Long, 27 id. 21 ; Demaret v. Bennett, 29 id. 263. 2 Brock v. Southwick, 10 Tex. 65 ; Herron v. De Bard, 24 id. 181 ; Bryan v. Johnson, 39 id. 31 ; Carson v. Kelley, 57 id. 379. 3 Demaret v. Bennett, 29 Tex. 263. The result of the authorities was thus stated in this case : "A purchaser who has gone into possession under a deed with warranty, without any notice of a defect in the title, may resist the payment of the purchase money, by showing his title to be worthless, and the existence of a su- perior outstanding title by actual ouster, or, what is tantamount to the same, an 602 indisputable superior outstanding title and that he is liable to be evicted. But when the purchaser goes into possession under a deed with warranty, and with notice of the defects in the title, there are no equi- table grounds upon which he can withhold the purchase money for failure of the title, for the transaction still remains as the vendee understood it to be at the date of the purchase, and he will be forced to await eviction and then rely upon the covenants in his warranty for the damages arising from the breach of the same." The later cases of Bryan v. Johnson, 39 Tex. 31, Price v. Blount, 41 id. 472, and N orris v. Ennis, 60 id. 23, are all in ac- cord with this doctrine. § 355.] JURISDICTION OF EQUITY, ETC. [CHAP. XV. CHAPTER XV. THE JURISDICTION OF EQUITY AS TO COVENANTS FOR TITLE. § 354. Covenants for title, like all other covenants, are of course mere contracts between the parties, though their savoring of the realty gives them certain incidents denied to others. For a breach of contract, the common law provided a single remedy, a recom- pense in damages ; and as in many cases this proved insufficient, the jurisdiction of equity has become established in certain well- defined cases, administered through the means of specific perform- ance, injunction, and the reformation and rescission of contracts. And as the jurisdiction in these cases was originally engrafted on the common law by reason of the insufficiency of its forms of rem- edy, so, somewhat curiously, the common law recompense in dam- ages has in England in our own day been engrafted by statute upon the jurisdiction of equity, by reason of the occasional insuffi- ciency of the form of remedy which equity affords. § 355. This has been brought about by a series of recent stat- utes. Of these, the first was the " Chancery Amendment Act, 1858," 1 commonly called Lord Cairns' Act. It provided that " in all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, it shall be lawful for the same court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction or specific performance, and such damages may be assessed in such manner as the court shall direct ; " it also provided the machinery for the assessment of damages and the trial of ques- tions of fact, either by a jury before the court itself, or by the court alone, or for the assessment of damages by a jury before any judge of one of the superior courts of common law at Nisi Prius, or before the sheriff of any county or city. 1 21 & 22 Vict. c. 27. 603 § 355.] THE JURISDICTION OF EQUITY [CHAP. XV. In the construction of this act, which was not retrospective, it was held that it did not extend the jurisdiction of the court to cases where there was a plain common law remedy, or where the court would not have interfered before its passage, 1 and further, that where the plaintiff failed to establish any covenant, contract, or agreement of which specific performance could be decreed, the court had no jurisdiction to grant relief in damages. 2 Where, however, the court had jurisdiction to grant specific performance, it might award damages for non-performance of part of the con- tract in respect of which it could not have compelled specific performance. 3 But it was considered that a plaintiff would not be entitled to damages if he had done any act which would de- prive him of his right to specific performance, 4 and that it was in the discretion of the court whether it would award damages under the act, or leave the plaintiff to obtain them at law, 5 and this, notwithstanding the subsequent act of 25 & 26 Vict. c. 42, 6 which provided that " in all cases in which any relief or remedy within the jurisdiction of the Court of Chancery is sought in any cause instituted therein, every question of law or fact cognizable in a court of common law, on the determination of which the title to such relief or remedy depends, shall be determined by or before the same court ; " in other words, it was considered that as the relief in equity thereby does not depend upon the mere question of damages, the act was not compulsory. 7 " The object of Lord Cairns' Act," says a recent writer, 8 " is to enable the Court of Chancery to do complete justice in cases where it previously had jurisdiction, but where circumstances had occurred which disabled the court from decreeing specific 1 Wicks v. Hunt, Johns. 372 ; Rogers 4 Collins v. Stuteley, 7 Weekly Rep. v. Challis, 27 Beav. 175 ; Seott v. Ray- 710. But aliter under Judicature Acts, ment, L. R. 7 Eq. 112. Elmore v. Pirrie (July 27, 1887), Weekly 2 Levvers v. Earl of Shaftesbury, L. R. Notes, 167. 2 Eq. 270, where it was said, " Where the 5 Durell v. Pritehard, L. R. 1 Ch. App. existence of an agreement is made out, 244. the court may think it better to give re- 6 Known as Sir John Rolt's Act. lief in damages than to perform the agree- 1 Johnson v. Wyatt, 2 De Gex, J. & S. ment, but the relief thus given is, by the 18 ; Swaine v. Great Northern R. R., 4 id. words of the statute, 'in addition to or 211 (which was argued by Sir John Rolt); in substitution for' specific performance, Durell v. Pritehard, L. R. 1 Ch. App. 244; and implies the existence of an agreement Mayne on Damages (3d ed.), 521. lut ween the parties capable of being spe- 8 N t e to Cuddee v. Rutter, 1 Lead. illy performed." Cas. in Eq. (4th ed.) S19. See also Kerr 8 Soames v. Edge, Johns. 669. on Injunctions, 221. 604 § 856.] AS TO COVENANTS FOR TITLE. [CHAP. XV. performance, and so rendered it necessary for the plaintiff to seek relief in a court of law for damages. If, for instance, before the passing of the act, upon a bill being filed for the spe- cific performance of a contract for the purchase of an estate, it appeared that the vendor could not make a title to the estate, the bill would have been dismissed, and the vendor would have been obliged to resort to a court of law for damages ; under the act, the Court of Chancery is able to do complete justice between the parties, by the award of adequate damage for the non-performance of the contract." And as the act did not diminish the rights of suitors, a plaintiff in equity, who before the act would have been allowed at the same time to sue the defendant at law for damages, may still do so, al- though he might, under the act, pray for and obtain damages in the suit. And where the plaintiff has established his right to a perpetual injunction against the defendant, the court has no power under the act to oblige him, against his will, to accept damages in lieu of the injunction. 1 § 356. Then came the familiar series of statutes known as the Judicature Acts, introducing, as they did, such thorough changes in the English system. In the first of these statutes, passed in 1873, it was provided that in every civil cause or matter com- menced in the High Court of Justice, law and equity shall be administered by giving to any plaintiff claiming equitable relief, or any relief founded upon a legal right, such relief as ought to have been given by the Court of Chancery before the passage of the act, and by giving to any defendant claiming any equitable estate or right, or relief upon any equitable ground against any right or claim of the plaintiff, the same effect by way of defence as the Court of Chancery ought to have given before the passage of the act. 2 1 Krehl v. Burrell, L. R. 11 Ch. Div. that a person would have a right to do a 146. " It was not intended," said James, wrong to his neighbor, at a price to be L. J., "and never could have been intend- fixed by the court." It maybe suggestive ed by the legislature, in giving a right to in this connection to contrast such a de- damages under Lord Cairns' Act, to com- cision with some American cases which pel a man who is wronged, to sell his prop- practically, under circumstances not very erty to the person who has wronged him. dissimilar, deprive a covenantee of his op- No such right as is claimed by the appel- tion. See supra, §§ 179, 258. lant can exist in this country unless spe- 2 Act of 36 & 37 Vict. c. 66, § 248, cially given by act of Parliament. If it L. R. 8 Stat. 306. were otherwise, the consequence would be 605 § 357.] THE JURISDICTION OP EQUITY [CHAP. XV. This act of 1873 was followed by supplementary statutes, ex- tending down to the year 1883. 1 In the construction of these statutes, it was, however, held that they did not repeal the Chancery Amendment Act of 1858. 2 § 357. Then came the " Statute Law Revision and Civil Pro- cedure Acts" of 1881 3 and 1883, 4 the latter of which declared that " the enactments described in the schedule to this act are hereby repealed, subject to the exceptions and qualifications mentioned in this act and in that schedule," and among the enactments in the schedule was " 21 & 22 Vict. c. 27, The Chancery Amendment Act." But the " exceptions and qualifications " thus referred to were in these words : " The repeal effected by this act shall not affect . . . any jurisdiction, or principle, or rule of law or equity, established or confirmed, or right or privilege acquired, or duty or liability imposed or incurred, or compensation secured by or under any enactment repealed by this act." In a case arising before the passage of this act, Pierson, J., had applied to it the principle of Lord Cairns' Act. 5 An appeal was taken, and pending it, the act of 46 & 47 Vict, was passed. Lord Justice Baggalay, in delivering the opinion affirming the court below, said : " Our attention was called to the fact that Lord Cairns' Act had been repealed since the former bearing of this case, being included in the schedules to the Statute Law Re- vision and Civil Procedure Act, 1883 (46 & 47 Vict. c. 49), but that act contains words preserving the jurisdiction of the court, notwithstanding the repeal. By section 5, it is enacted that any jurisdiction, or principle, or rule of law or equity, established or confirmed, or right or privilege acquired, by or under any enact- ment repealed by the act, shall not be affected by the repeal. It is not, however, necessary to have recourse to Lord Cairns' Act, for it is clear that the court now has power to give damages as 1 The statutes constituting what are 2 Fritz v. Hobson, L. R. 14 Ch. Div. known as the Judicature Acts are, besides 542 ; Bowen v. Hall, L. R. 6 Q. B. Div. the Act of 1873, the Act of 38 & 39 Vict. 333; Wilson on Judicature Acts (4th c. 77 (1875), L. R. 10 Stat. 759 ; Act of ed.), 32. 39 & 40 Vict. c. 59 (1876), L. R. 11 Stat. 3 44 & 45 Vict. c. 59, L. R. 17 Stat. 380; Act of 40 Vict. c. 9 (1877), L. R. 12 359. Stat. 113; Act of 42 & 43 Vict. c. 78 4 46 & 47 Vict. c. 49, L. R. 19 Stat. (1879), L. R. 14 Stat. 361 ; Act of 44 & 225. Of these two statutes, the latter was 45 Vict. c. 68 (1881), L. R. 17 Stat. 385 ; the broader in effect, and Act of 46 & 47 Vict. c. 29 (1883), 5 Sayres v. Collyer, L. R. 24 Ch. Div. L. R. 19 Stat. 95. 180. 606 § 358.] AS TO COVENANTS FOR TITLE. [CHAP. XV. alternative relief. Before Lord Cairns' Act was passed, a plaintiff who wished to enforce a restrictive covenant had two remedies ; he might come into a court of equity for an injunction to restrain an infringement of his right, or he might have recourse to a court of common law to obtain damages, and Lord Cairns' Act gives the courts of equity the power of giving a plaintiff damages by way of alternative relief. But since the Judicature Acts, each division of the court has full power, apart from Lord Cairns' Act, to give either an injunction or damages." x § 358. As to the specific performance of contracts, the maxim of the civil law, Nemo potest prcecise cogi ad factum, is equally the doctrine of the common law in England. 2 That law (save in the case of replevin, which is scarcely an exception) affords, as has been said, but one compensation for every loss, viz. money. But as from a very early day it was felt that though one shilling might be as good as another, yet one estate in land, though of pre- cisely the same market value as another, might be vastly different in every other circumstance that made it an object of desire, the doctrine was established as early as the time of Richard the Sec- ond, that a court of equity had jurisdiction to enforce the specific performance of contracts for the sale of land. 3 The Year Books tell us that this jurisdiction was not asserted without opposition on the part of the common law judges, 4 but, at least as early as when Brooke's Abridgment was published, it seems to have been fully established. 5 1 Sayers v. Collyer, L. R. 2S Ch. Div. applied at an early day ; and we find cases 103. as far back as the reign of Henry V. when 2 Fry on Specific Performance, 1. such a jurisdiction was exercised, till in 3 1 Spence's Eq. Jurisd. of the Court of the leading cases of Pusey v. Pusey, and Chancery, 645. Duke of Somerset v. Cookson, 1 Lead. 4 21 Hen. VII. pi. 41 ; 22 Hen. VI. Cas. in Eq., decided respectively in 1684 pi. 43. and 1735, the doctrine was placed beyond 8 Brooke's Abr. Trespass on the Case, question. This, too, was not without pi. 72. Thus in Doctor and Student question and opposition by the common (which was published in 1518) it is said, law judges, who claimed that an action " If a man sell his land by a sufficient of detinue was the proper remedy, even and lawful contract, though there lack although — while the judgment recognized livery of seisin, or such other solemnities the plaintiff's right to recover the thing of the law, yet the seller is bound in con- in specie — the delivery could not, on re- science to perform the contract. In this fusal, be enforced, but damages only. 1 case, the contract is sufficient." Dialogue Spence's Eq. Jurisd. 646. 1, c. 21, p. 63. A curious modern illustration of the With respect to chattels, also, such as doctrine as applied to personal property had a peculiar and intrinsic value, not to occurs in the decisions in the Southern be measured by money, the same rule was States as to slaves, where, after much 607 § 360.] THE JURISDICTION OF EQUITY [CHAP. XV. " There is no pretence," says a learned author, " for the com- plaints sometimes made by the common lawyers, that such relief in equity would wholly subvert the remedies by actions on the case and actions of covenant ; for it is against conscience that a party should have a right of election whether he would perform his covenant, or only pay damages for the breach of it. But on the other hand, there is no reasonable objection to allowing the other party, who is injured by the breach, to have an election either to take damages at law or to have a specific performance in equity, the remedies being concurrent but not coextensive with each other." i § 359. But while it is easy to state this as a general proposi- tion, it will be found that from an early time much difficulty has been and is still felt in its practical application. Thus, for example, the enjoyment of land may greatly depend upon the specific performance by another of his covenant to build thereon, and in some early cases such performance was decreed; 2 but more lately the doctrine has been denied and specific perform- ance refused, for it is said, if one will not build, another may. 3 On the other hand, the performance of a covenant to levy a fine or for further assurance may be indispensable to the security of the title, and none can perform it but the party bound by the cove- nant, 4 and it is obvious that a recovery in damages affords, at most, an uncertain if not inadequate recompense. § 360. So there may be cases of covenants sounding in dam- ages, in a strict sense, whose performance will sometimes be en- forced on principles of quia timet. Thus in the early case of Raneiagh v. Hayes, 5 the plaintiff assigned certain shares of the discussion and some variety of decision, Cairns' Act the court has no power to the weight of authority settled upon the oblige a plaintiff to take damages against ground that although as a general rule no his will, when he has established his right distinction would be observed between a to specific equitable relief. Supra, p. 605, slave and any other chattel, yet when n. 1. there were peculiar circumstances which 2 Story's Eq. Jur. § 725. gave a pretium affeclionis — such as a 8 Id. § 726. slave being a family servant, a carpenter, 4 Id. § 729. Some text- writers include a blacksmith, or the like — specific de- under this head the specific performance livery would be enforced. See the Ameri- of covenants not to do a certain thing, as can notes to Cuddee v. Rutter, 1 Lead, not to build and the like ; but equity here Cas. in Eq. interferes by injunction rather than by 1 Stoiy's Eq. Jur. § 717 a. A pertinent specific performance, illustration of this has been shown in the 5 1 Vern. 189 (1683) ; s. c, but less class of cases considered supra, §§ 179, full, 2 Cas. in Ch. 146 ; 1 Eq. Cas. 258; and as has just been seen, under Lord Abr. 17. 608 § 3G0.] AS TO COVENANTS FOR TITLE. [CHAP. XV. excise in Ireland to the defendant, who covenanted to save him harmless in respect of that assignment, and to stand in his place touching the payments to the King, 1 and the plaintiff, being sued by the King for £20,000, filed his bill that the defendant might be decreed to perform his covenant in specie. It was insisted on behalf of the latter, that here was no proper subject for equity nor anything that the court could decree, for here was no specific covenant, but only a general and personal covenant for indemnity which sounded only in damages, which could not be ascertained in this court, 2 especially as this case is, there being no breach of the covenant assigned in the bill, for a suit being brought by the King was not in itself any breach ; the defendant would defend the suit, and if nothing was recovered there was no breach. But Lord Keeper Guilford " thought fit to decree that the defendant should perform his covenants, and directed it to a master, and that toties quoties any breach should happen he should report the same specially to the court, and the court then might, if there should be occasion, direct a trial at law in a quantum damnificatus, and he conceived it reasonable that the defendant should be decreed to clear the plaintiff from all these suits and incumbrances within some reasonable time, 3 and he compared it to the case of a counter bond, where, although the surety is not troubled or molested for the debt, yet at any time after the money becomes payable the court will decree the principal to discharge the debt — it being unreasonable that a man should always have such a cloud hang 1 In the report in 2 Cas. in Ch. the must depend upon examination of long covenant was stated to be "to save the and intricate accounts of the revenue of Lord Ranelagh harmless touching three Ireland, which cannot be made upon a parts of a farm assigned to Hayes." It trial at law, and a jury cannot foretell will of course be remembered that the ex- what damages will after happen, but must cise in Ireland, created by the excise act give their verdict upon uncertainties, of Charles II., was farmed out by the which will after occasion suits in this king, and part of the covenant, which is court' ;" and it was also ordered "that given in the note to the report in Vernon, upon any suit or demand against plaintiff was, that he, the defendant, should in- upon any matter relating to the said farm, demnify the plaintiff from all accounts, he should give timely notice to the defend- payments, charges, and actions whatso- ant or his clerk in court, to the intent de- ever on account of any moneys due by fendant may take all necessary care in the plaintiff, the then late farmer of his defence thereof, to prevent any damage Majesty's revenue in Ireland, for rent or that may come to him thereby." otherwise. The care with which the juris- 2 Since altered by Lord Cairns' Act, diction was exercised will appear by the supra, p. 603. notes to the report : " The Lord Keeper 3 See as to this at law, Lethbridge v. gave as one reason for his decree, 'that the Mytton, etc., supra, § 74. computation of damages in such a cause 39 609 § 361.] THE JURISDICTION OF EQUITY [CHAP. XV. over him ; " and other cases, on both sides of the Atlantic, have seemed to recognize the same doctrine. 1 § 361. This class of cases must not, however, receive a broad application. So far as they rest on the doctrine of quia timet, it has been well said of this head of jurisdiction, that " though it is one which a court of equity has often exercised, yet it will be extremely tender in so doing, because it materially varies the agreement of the parties at the time of the transaction." 2 And 1 Lee v. Rook, Mosely, 318 ; Pember v. Matthers, 1 Bro. Ch. 52 ; Burroughs v. McNeill, 2 Dev. & Bat. Eq. (N. C.) 297; Griffin v. Orman, 9 Fla. 22. In Gibson v. Goldsmid, 5 De Gex, M. & G. 757, where there were (in a conveyance after dissolution of partnership) covenants by both parties, the fact that the plaintiff might have broken his own covenant of indemnity did not prevent the court from enforcing a covenant for further assurance. In Hatton v. Waddy, 2 Jones (Ir. Chan.) 541, on a conveyance of a portion of premises all of which were subject to a quit-rent, the vendee covenanted with the vendor, his heirs and assigns, to pay the rent on the whole property, and this was enforced against a volunteer claim- ing under the former, in favor of the as- signee of the portion originall}' retained by the vendor. In Power v. Standish, 8 Ir. Eq. 526, a father gave certain mort- gaged premises to his second son, and other premises to his eldest son, who covenanted to pay the incumbrance on his brother's property. A mortgagee of the eldest son's property, with notice of the covenant, was compelled to fulfil it without claiming contribution from the second son. In Champion v. Brown, 6 Johns. Ch. (N. Y. ) 398 (where is an able opinion by Kent, Ch.), the plaintiffs, administrators whose intestate had contracted to pur- chase land, assigned the contract to the defendants, who covenanted to take up and cancel it, or, if this could not be done, to indemnify the plaintiffs from all loss by reason of it. It was held that the plain- tiffs were entitled to specific performance, and the defendants could not set up in limine that the plaintiffs could not be dam- 610 aged by reason of the contract, because they had no assets. But in Lloyd v. Dimmack, L. R. 7 Ch. Div. 398, the plaintiff asked for a judgment declaring that the defendants were bound to indemnify in respect of breaches of covenants in a lease ac- cording to its terms, and giving liberty to apply from time to time, as breaches of the indemnity might occur; but Fry, J., in his opinion, suggested that such a judg- ment would be highly inconvenient, as re- quiring from time to time the interference of the court over the whole residue of a term of ninety-nine years, and added : " In the next place, I am not aware that with the single exception of the case of Rane- lagh v. Hayes, 1 Vern. 189, any authority can be produced for a judgment of that description. That is a case which I believe has never been actually followed. It has been cited over and over again, but the in- dustry and learning of the counsel for the plaintiff have not enabled them to produce a single case in which a decree has been made declaring the right to indemnity, and giving liberty to apply from time to time. Therefore, upon the ground of the great inconvenience of such a judgment, and looking at the fact that no decree can be produced, from the time of Ranelagh v. Hayes down to the present time, and look- ing at the not very clear report of that case and the difficulty of ascertaining the exact circumstances, and especially what was the duration of the liability in respect of which that indemnity was declared, I feel myself bound to say that I cannot make such a declaration, or give such a general liberty to apply." 2 Flight v. Cook, 2 Ves. 620, per Sir T. Clarke, M. R. § 361.] AS TO COVENANTS FOR TITLE. [CHAP. XV. as nothing is better settled, at least in this country, than that upon the ordinary covenant against incumbrances a plaintiff can recover but nominal damages unless he has suffered actual loss J — in other words, that the covenant is treated as a covenant of indemnity in the strict sense of the word — so it will be found that equity follows the law, and that as a general rule no pref- erence is given to the covenant against incumbrances over any of the other covenants for title, 2 and that relief will not be granted upon the mere apprehension of damage. Thus in a case in New York, the complainant's bill set forth the existence of a quit-rent upon the land which had been conveyed to him with all the cove- nants for title, and prayed that the defendant might be decreed to pay and satisfy it and have the same cancelled of record, and hold the plaintiff harmless therefrom, to which the defendant demurred, on the ground that the purchaser's remedy was at law upon the covenants, and the court dismissed the bill, saying : " It is said, however, that a court of equity will decree the perform- ance of a general covenant of indemnity, though it sounds only in damages, upon the principle on which they entertain bills quia timet. Whether this be so or not, the difficulty is that there is here no covenant of indemnity in the proper sense of the term. In one sense, all the usual covenants in a deed may be termed covenants of indemnity ; that is, they are designed to protect the purchaser to a certain extent against the failure of title, or an eviction, or against incumbrances ; but they afford an indemnity in no other way than every other contract or agreement does, viz. by the right to recover damages for the breach or non-perform- ance, and this deed contains no other than the usual covenants." 3 So in Ohio, where the defendant conveyed to the complainant with covenants that he was the lawful owner, had good right to sell, and of warranty, and the latter filed a bill setting forth that a widow had obtained an assignment of dower in the premises, for 1 Stipra, § 188 et seq. the lessor had paid nothing ; but in Read- 2 Except, of course, that for further as- ing ■;;. Gray, 37 N. Y. Super. Ct. 79, that surance, as has been just seen. decision was said to be based on the ground 3 Tallman v. Green, 3 Sandf. 437. In that the covenant was affirmative and not the late case of Rector of Trinity Church collateral, and a distinction was drawn be- v. Higgins, 48 N. Y. 532, it was held that tween a promise and an indemnity (as to a lessor might recover an assessment laid which see mpra, § 74), aDd that where upon the demised premises which the lessee the assessment had not been paid, only had covenanted to pay, notwithstanding nominal damages could be recovered. 611 § 362.] THE JUEISDICTION OF EQUITY [CHAP. XV. the payment of which a certain annual charge had been imposed upon the land, and prayed a specific performance of the cove- nants, the bill was dismissed, the court saying: " There is a well- established chancery jurisdiction over certain covenants. The Chancellor will exercise a restraining power where the cove- nantor, contrary to his stipulation, disturbs the tenant by .his own act, and he will enforce the specific performance of the covenant for further assurance. But we find no case of interference on this side of the court in relation to the covenant of warranty." L Other cases have proceeded upon the same rule, 2 and any in which a different course has been taken must be deemed to rest upon their peculiar grounds. 3 § 362. As to the covenant for further assurance, the rule is somewhat different. It is not a mere allegation that the title is good — that there is no incumbrance — not a mere promise to respond in damages if the other party should be evicted ; it is a specific undertaking to execute such particular deed or deeds as may be necessary for the better and further assurance of the title to the purchaser. If performed, it may make a doubtful title marketable ; if unperformed, who can measure the damages to be recovered at law ? Who can measure by money the difference between the value of a title good to keep, and yet not good to sell? And hence it will be found that from an early day, courts of equity have enforced the specific performance of covenants for further assurance. Thus where in the last century, a tenant in tail executed a mort- 1 Tuite v. Miller, 10 Ohio, 382. liarly framed. There had been an ex- 2 Thus in Watkins v. Owen, 2 J. J. change of land with a covenant, giving, Marsh. (Ky. ) 142, the complainant had in case of eviction, the election to either received a deed with covenant of warranty, party to restore the land taken in exchange and filed his bill, setting forth that a suit or pay its value. " It did not, therefore," was threatened by adverse claimants and the court said, "leave the amount of the praying that their titles be examined and liability of the warrantor to the conclu- damages assessed against his covenantor sions of law upon the general expressions should his title fail, which was dismissed of the covenant, but fixed the nature and by the court, as not showing any fraud or extent of his liability." There were also mistake, or that his remedy on the cove- other circumstances in the case which ren- nant would be ineffectual. A somewhat dered the interposition of equity neces- similar decision was made in Bradford v. sary. The case is referred to at length in Long, t Bibb, (Ky. ) 225. the fourth edition of this treatise, p. 655, 3 Tims in Barnett ;;. Montgomery, 6 note. Mon. (Ky.) 327, the covenant was pecu- 612 § 362.] AS TO COVENANTS FOR TITLE. [CHAP. XV. gage in fee with a covenant for further assurance, and then became bankrupt, whereby his estate became vested in his assignees in bankruptcy, it was held that the latter might be compelled either to redeem the mortgage or to convey to the mortgagee the fee simple into which, by the operation of the bankrupt law, the estate tail had been turned. 1 So where tenant in tail conveyed his estate in fee simple for the benefit of his creditors, with a similar cove- nant, and afterwards became bankrupt, his assignees were ordered to convey the fee to the trustees of the assignment. 2 In these cases, it need hardly be said that the remedy at law, whether by action of covenant against the bankrupt or by proving as for a debt against his estate in the hands of his assignees, 3 would be utterly inadequate. 4 So where a grantor, having no interest in certain lands, con- veyed them in fee with covenants for the title, including one for further assurance, and afterwards acquired the very estate which he purported to convey, it was held that the grantee could main- tain a bill to compel a conveyance of the subsequent title. 5 So where the defendant agreed to assign shares in a foreign gas company to the complainant, and covenanted to do such other and further acts as might be necessary to effectuate the transfer, the Lords Justices held, upon a bill filed for the specific perform- ance of the agreement, that the defendant was bound under his covenant to perform certain formal acts required by the laws of the country in which the company was located, and which were necessary to be performed in order to vest the shares in the com- plainant. 6 So in an early case in Virginia, a married woman, tenant in tail, joined with her husband in conveying the estate, with cove- nants for quiet enjoyment, of warranty, and for further assurance. 1 Pye v. Daubuz, 3 Bro. C. C. 595 ; though it is noticed in Dart on Vendors see Tourle v. Rand, 2 id. 650. (5th ed.), 809. 2 Edwards v. Appelbee, 2 Bro. C. C. 3 As to this see infra, § 303. 652, n. It will be remarked of these cases 4 Of course, however, the mere insol- that the tenant in tail conveyed in fee ; vency of the covenantor will not of itself, had he merely purported to pass his estate and irrespective of other circumstances, tail, the decisions would probably have create, however it may fortify an equity, been different. Davis v. Tollemache, 2 See infra, § 380 et seq. Jur. (N. s.) 1181 ; supra, p. 421, n. 1, and 5 Smith v. Baker, 1 You. & Coll. 223, infra, § 363. This distinction does not supra, p. 133, n. 3, and p. 417, n. 1. seem to have been very carefully observed 6 Gibson v. Goldsmid, 5 De Gex, M. in Fry on Specific Performance, 116, & G. 757. 613 § 363.] THE JURISDICTION OF EQUITY [CHAP. XV. A subsequent statute declared that tenants in tail should hold in fee simple, and the wife died after its passage but without executing the assurance, and upon a bill filed against her heirs the complainants had a decree. 1 § 363. Specific performance, however, will obviously not be enforced, when the result would be to enlarge the grantee's title beyond that intended to be conveyed. In Davis v. Tollemache, 2 for instance, the defendant, a tenant in tail in remainder, mort- gaged his estate tail with a covenant for further assurance. Sub- sequently, the estate tail became vested in him in possession, and a disentailing deed was tendered to him for execution, in order, as was claimed, that he might comply with his covenant, and on his refusal a bill was filed to compel its specific performance, which was demurred to for want of equity. Vice-Chancellor Stuart dismissed the bill, saying, " The covenant for further assurance in a deed is a covenant intended to give full effect and operation to the estate and interest conveyed by the deed. Where it is sought to extend the operation of a general cove- nant of that kind to the execution of an instrument which would bar a title in others, which would continue but for the execution of the instrument sought to be executed, I have always under- stood that an express stipulation to that effect is necessary be- tween the contracting parties. . . . The utmost extent to which the court has gone, with reference to covenants for further assur- ance, has been to extend their operation to that very estate and interest which are conveyed by the deed." 3 And as has been 1 Nelson v. Harwood, 3 Call, (Va. ) strument, that there was no further inten- 342. The husband also gave a bond con- tion than that this deed should apply to ditioned that the entail should be barred, every estate and interest which could be Part of the decision was rested on the affected by the conveyance of the grantor ; ground of the wife being bound, because and I think, under the covenant for fur- she had conveyed with a private examina- ther assurance, that of every estate to tion ; but as to this see supra, § 306. which the grantor was entitled there should 2 2Jur. (n. s.) 1181, and supra, p. 421, be a conveyance of the same force and n. 1. effect with that which was made by the 3 "The case of the plaintiff," said the general deed, and that to such a convey- Vice-Chancellor, " depends entirely on the ance, under the covenant for further assur- force and effect to be given to general ance, if the execution of such a conveyance words. Now the general words in this be necessary to effectuate the intention case unquestionably extend to every es- of the parties, the grantee, who is the tate and interest of every kind which the plaintiff in this suit, is entitled." In grantor in the deed of mortgage had. I Fields v. Squires, 1 Deady, (C. C. U. S. ) have no doubt, as far as the intention of 366, 380, it was obviously held that the parties is to be collected from the in- a covenant that " if the grantors should 614 § 364.] AS TO COVENANTS FOR TITLE. [CHAP. XV. said in a previous part of this treatise, 1 where the other covenants are limited to the acts of the vendor, the purchaser will obviously have no right, under his covenant for further assurance, to require the removal of an incumbrance not created by the former. 2 The doctrine of Davis v. Tollemache, it is to be observed, means no more than that the evidence of the intention of the parties must regulate the performance to be required of them. Thus in the very recent case of Bankes v. Small, 3 where a tenant in tail in remainder had disentailed without the concurrence of the tenant for life, and sold the property covenanting to execute " every such disentailing and other assurance " as the purchaser should reason- ably require, and after the tenant for life died, a bill to compel the execution of a disentailing deed was filed. The defendant tried to explain away the word " disentailing," and Davis v. Tolle- mache was relied on to restrict the covenant to the bare fee which he had at the time of the conveyance ; but it was held that the ultimate assurance of the entire fee by a disentailing deed had clearly been intended, and the case was distinguished from Davis v. Tollemache. § 364. The jurisdiction of equity in the specific performance of covenants for title (as of all other covenants) is, however, fre- quently exercised when necessary to the administration or the marshalling of assets. In such cases, as in a class already re- ferred to arising under the bankrupt laws, 4 the satisfaction of covenants is a necessary incident to the proper adjustment and adjudication of the rights of the parties before the court, and this, whether the conveyance is voluntary or upon valuable consid- eration. Thus in Williamson v. Codrington, a testator living in Barba- does executed, in 1715, a voluntary settlement of his plantation in America to trustees in trust for his two illegitimate children, with a covenant of general warranty. 5 He was afterwards evicted, and died in England, and the cestuis que trust having filed a bill to have satisfaction of the covenant out of assets of his estate, it obtain the fee simple from the United 2 Armstrong v. Darby, 26 Mo. 517. States they would convey it to the grantee 3 l. j> 34 ^ n> ])iv. 415, and supra, by a deed of general warranty," did not p. 135, n. 3 ; affirmed on appeal, July 8, require the grantors to convey the fee 1887, Weekly Notes, p. 141, 3 Times Law which they subsequently acquired from R. 740. another source. 4 Supra, § 304. 1 Supra, § 105. & 1 Ves. 511 (1750), and supra, § 110. 615 § 364.] THE JURISDICTION OF EQUITY [CHAP. XV was, after careful argument and consideration, held by Lord Hardwicke that they were entitled to relief. 1 So in Lord Thurlow's time, a testator, by a voluntary deed con- taining a covenant for seisin, charged his copyhold estates with the payment of an annuity to the complainant for life, and after- wards by his will confirmed the deed, and bequeathed the annui- tant a legacy in money. The copyhold estates were, however, never surrendered, but descended to the heir of the grantor, and a bill being brought " by the plaintiff to be paid her legacy and to have the annuity secured," 2 the Chancellor held that the plaintiff was a creditor by specialty, 3 and that the legacy should 1 "The first question," said the Chan- cellor, " is with regard to the nature of the remedy the plaintiff has taken ; for as to the other circumstances, certainly, though the conduct of this gentleman ap- pears very extraordinary, yet when he had these children, in whatever way, or of whatever color, it was a natural duty in- cumbent on him to provide for them, and whatever provision was made for them, so far as they should be entitled in law or equity, the remedy must be extended for their benefit. The remedy taken is by bill for satisfaction out of assets ; not in- sisting to follow the subject itself. Un- doubtedly a bill may be for satisfaction of a debt out of assets real and personal, which debt may be created voluntarily by the testator ; for although one cannot come into equity to supply a defect in a volun- tary deed without consideration, or in many instances cannot come for specific performance of such an agreement, yet if he has a specialty he does not want proof of consideration, but may come into equity as well as law to have satisfaction for that debt on that specialty out of assets, and then the court will not send it to law, but will judge whether he has a specialty or not. Indeed, if it appears doubtful to the court whether it is a specialty on which an action at law could be maintained, or the damages so uncertain that it could not be settled without being tried by a jury, the court will, as in other cases, have the aid of a court of law ; but unless such a necessity, will not send it to law to make two suits out of one. The plaintiff is 616 proper to have a decree, so far as his right extends, to determine which extent the nature of the settlement and covenant therein contained must be considered. . . . But then another point arises upon the covenant, for let him intend what he will, if it is a voluntary conveyance, and he has since conveyed away the estate for valuable consideration, these children or their trustees cannot recover it back from such a purchaser, and if that was the whole of the case, there is no covenant of spe- cialty to oblige the grantor or his estate to make it good. There is no instance where a voluntary conveyance is afterwards de- feated by sale for valuable consideration that satisfaction can be demanded against him or his estate, unless for some covenant on which an action or suit might be main- tained. Therefore plaintiff resorts to the clause which he insists on as a covenant from the testator entitling him to satisfac- tion for what was lost by eviction of the estate out of his assets, real and personal, and if it amounts to a covenant it will en- title thereto." See the remainder of the opinion, supra, p. 141, n. 1. 2 Giles v. Roe, 2 Dickens, 570 (1780). 3 It is well settled that a grantee under a deed containing covenants is enritled upon their breach to prove against the estate of his grantor as a specialty creditor. Earl of Bath v. Earl of Bradford, 2 Ves. 587 ; Parker v. Harvey, 2 Eq. Cas. Abr. 460 ; Fergus v. Gore, 1 Sch. & Lef. 107 ; Lovell v. Sherwin, 2 Eq. Rep. 329 ; In re Dickson, L. R. 12 Eq. 154, supra, p. 517, n. 4, and p. 523, n. 4. In the later case of § 364.] AS TO COVENANTS FOR TITLE. [CHAP. XV. be paid, and a fund set apart out of the personal estate to answer the annuity. 1 Nearly seventy years later, the case of Hervey v. Audland, where the facts were very similar to those in Williamson v. Codrington, came before the Vice-Chancellor's court, 2 and a different decision was made, though on a technical ground. In consideration of affection, one assigned certain personal estate in trust for his nieces with a covenant for further assurance, and his executors having refused to perform the covenant, 3 a bill was filed for the administration of the estate, but the Vice-Chancellor held, that as the question raised was a legal one, it must be decided by a court of law, and leave was granted to the petitioners to bring an action. But in the later case of Cox v. Barnard, 4 satisfaction of a like covenant was decreed in a similar case. A testator had before his death made several voluntary assignments of annuities, mort- gage debts, etc. (of which no notice was, during his life, given by him to the grantors of the annuities, or the mortgagors), in trust for himself for life with remainder to the plaintiff and with covenants for further assurance ; and the bill, alleging that being without consideration it was doubtful whether the assign- ments were valid, charged that, if invalid, the property comprised in them ought to be administered as part of the personal estate of the testator. The court having- desired to hear counsel for Hunt v. White, 37 Law J. Ch. (n. s.) 326, in fee and had power to dispose, prove to s. c, 16 Weekly Rep. 478 (1868, per be not so, except three acres of land, which Malins, V. C. ), one entitled to the benefit are very insufficient. The plaintiff there- of a covenant for quiet enjoyment was not fore must have satisfaction of that cove- allowed to prove against the estate of his nant and will be a creditor by specialty covenantor, because although that cove- quoad hoc." nant was a general one, yet as the defect 2 14 Sim. 531 (1845), Shadwell, V. C. of title appeared in the recited deeds, it 3 There had been a previous bill filed must, it was thought, be taken to be quali- to enforce the trusts of the settlement fied and restrained by the other covenants (Ward v. Audland, 8 Beav. 201, see infra), in the deed ; but as to this see siopra, which had been dismissed on the ground § 2S9 et seq., aud the decision is severely that the property had not legally vested criticised in 45 Law Times, 157. in the complainants, but the case has 1 "A question has been attempted to been overruled on this ground, as has also be made," said the Chancellor, "whether Hervey v. Audland; see infra, p. 618. the plaintiff is entitled both to the annuity In the argument of the latter case, Wil- and to the legacy, but there can be no liainson v. Codrington seems not to have doubt. The only question is under the been noticed in any way. annuity deed ; the lands charged with it, 4 8 Hare, 310 (1850), Knight Bruce, and of which he covenanted to be seised V. C. The case is not well reported. 617 § 364.] THE JURISDICTION OF EQUITY [CHAP. XV. those who contended that the voluntary deeds did not bind the estate, the latter cited Ward v. Audland, 1 when the court said that the covenant for further assurance created a debt, and that if the testator died solvent the covenant must be performed ; and counsel then suggesting that the court might give the party claiming the benefit of the covenant the opportunity of bringing an action, 2 the court, after quoting the covenants, said that " the Court of Chancery undertook to administer the estates of deceased persons, and it was the duty of the court to do so, if practicable, without sending parties to courts of law, for which there was no necessity in this case. He did not say the court would specifically perform the covenant, but all the covenantee required was dam- ages, and those damages the Court of Chancery could in such a case estimate and give better than a court of law. 3 It was not necessary for him to decide, and he did not decide, whether with- out the covenant for further assurance this voluntary instrument would prevail ; but the covenant being there, the court would fasten upon it and hold that the assignment operated to bind the estate." So in the later case of Hales v. Cox, 4 a testator, in consideration of affection for the children of his first marriage, settled certain estates in trust for their use, covenanting for quiet enjoyment and further assurance, and subsequently conveyed the estates in mort- gage with a power of sale, which was exercised by the mortgagees after his death, and the surplus, after paying the mortgage, was before the court for distribution, and the court held, " The persons who are entitled to the benefit of the covenants for quiet enjoy- ment contained in the settlement have a right to prove against the assets of the settlor for the amount to which they have been damaged by reason of his subsequently mortgaging the settled property ; that is, after providing for the testator's debts, they are entitled to priority over the legatees." 5 i 8 Beav. 201. A branch of Hervey v. 4 32 Beav. 118, Eomilly, M. R. Audland, ubi supra ; also infra, p. 620. 6 The report goes on to say that the 2 The same argument was used in court declared " these two principles : Williamson v. Codrington, which case is that the claimants under the voluntary referred to by the reporter in Cox v. Bar- settlement are entitled, as against the tes- nard. tator, his heirs and devisees, to marshal 8 And yet this was said eight years the securities ; and they are also entitled before the passage of Lord Caims' Act, as against the legatees to prove, under the supra, p. 603. covenant, against the assets." 618 § 305.] AS T0 COVENANTS FOR TITLE. [CHAP XV. § 365. Subject of course to the application of local statutes or practice as to the administration or marshalling of assets, the same general doctrine of course applies on this side of the Atlan- tic. Thus in a case in Virginia, 1 land which had been conveyed with covenants for seisin and of warranty in trust to pay the grantor's note, of which the complainants were indorsers, was sold under a prior deed of trust made to secure a previous debt. 2 The grantor died, and the complainants, being forced to pay the note, filed a bill against his heirs, claiming to be subrogated to the rights of the indorsee and to charge the heirs to the extent of the assets descended to them for a breach of their ancestor's covenant, and a decree was made accordingly. 3 So in a case in Kentucky, it was considered that " the discovery of assets, the necessity of subjecting the real estate of the deceased warrantor and the non-residence of most of the heirs, form a sufficient foun- dation for the jurisdiction of a court of equity to give relief for a breach of the warranty." 4 So in Arkansas, it was correctly said that wherever the remedy was purely legal, and adequate in a court of law, a covenantee must seek it there and there alone ; but that when a court of chancery had once obtained jurisdiction for some substantial purpose, it would retain it for all purposes so as to do complete justice between all the parties, and it was added, " It may be safely said that as a general rule in view of our system of administration, where the creditor is compelled to resort to the heir for payment of the debts of the ancestor, his remedy is in chancery rather than at law." 5 In short, whenever 1 Haffey v. Birchetts, 11 Leigh, 83. could not be necessary, since the damages See also Dickinson v. Hoomes, 8 Grat. were fixed and already certain. The dam- (Va.) 353 ; supra, p. 515, note. age was the value of the land lost, and 2 Mortgages in Virginia generally are that value was ascertained by what it sold in the form of deeds of trust with powers for. The debt was paid out of a trust, of sale. Infra, p. 633, note. subject to which the second incumbran- 8 "It is said, however," said the court, cers had title, and the grantor could not " that the right of the parties to damages complain, nor can his heirs complain at for breach of this covenant could only be reimbursing the second incumbrancers to asserted at law, and that a court of equity the full value of what had been paid for could not properly estimate them. As a him to their prejudice. In this view of general principle this is true, but here the the matter an issue must have been super- plaintiffs, having no rights but by the erpii- fluous." table principle of substitution, could assert 4 Kyle v. Fauntleroy, 9 B. Mon. 620. no remedy at law. They could only get As it was then the practice in these reports relief in equity. Moreover, although it is to give only the opinion of the court, one generally true that damages should be in- is often at a loss for the facts of the cases, quired of by an issue at law, yet here that 6 Higgins v. Johnson, 14 Ark. 309. 619 § 367.] THE JURISDICTION OP EQUITY [CHAP. XV. a court has jurisdiction of the distribution of a fund, it will con- sider the rights of those claiming under breach of covenant. " The objection," said the court in a case in New York, " that the covenant of quiet enjoyment cannot be enforced in this pro- ceeding is not available, nor are the rules which would govern an action for the breach of such a covenant applicable where the controversy arises, as it does here, between the covenantor and covenantee as claimants in a court of equity of the same fund." i § 366. In these cases it will have been seen that the jurisdic- tion had attached for the purpose of administration of assets, and, according to the weight of authority, the fact that the covenants were contained in voluntary conveyances — in other words, the question of consideration — was not deemed to be material. But that question is considered to be very material in cases where the jurisdiction is sought to be based upon the grounds of specific performance, of contribution, or of exoneration. § 367. Thus, as to specific performance. In Jefferys v. Jefferys, 2 a father had, by voluntary settlement, conveyed certain freehold estates to trustees for the benefit of his daughters, and by the same instrument covenanted to surrender to the same trusts certain copyhold estates. Upon his death, on a bill to compel specific execution of the trusts, it was decreed that the settlement was valid as to the freeholds, but void as to the copyholds for want of consideration. So in Ward v. Audland, the grantor, by a voluntary settlement containing a covenant for further assurance, conveyed his personal property to trustees, in trust for himself for life, with remainder to his wife and nieces. The grantor remained in possession of the property until his death, when the trustees filed a bill to es- tablish the trusts of the settlement, but the Master of the Rolls held that as the legal title had not vested in the complainants, the covenant would not effectuate the assignment, and the bill was dismissed. 3 1 Clarkson v. Skidmore, 46 N. Y. 297. Niramo, Lloyd & Goold, 333, decided by To the same effect are Johnson v. Wilson, Sugden while Chancellor of Ireland. 77 Mo. 639 ; McClaskey v. O'Brien, 16 3 8 Beav. 201, per Langdale, M. R., W. Va. 791 ; Tracey v. Shumate, 22 id. see supra, p. 618. For the defendant it 474. was argued : ,J We do not dispute that a 2 1 Cr. & Ph. 138. This was one of voluntary covenant may be the subject of the cases which had differed from Ellis v. a demand in equity, but the question as 620 § 3G7.] AS TO COVENANTS FOR TITLE. [CHAP. XV. So in a case in New York, where a testator in consideration of natural affection made a conveyance to the plaintiffs, his grand- children, covenanting that he was seised of a good and indefea- sible estate of inheritance, free and clear of all incumbrance. It turned out that there was a mortgage on the land, and the plain- tiffs brought suit against the executors to compel them to pay it off out of the assets of the estate, " being," the report says, " in the nature of a bill in equity for a specific performance of the covenants in the deed." On a reference, the report was in favor of the plaintiffs, but this was set aside by the court on the ground that although equity would sustain voluntary conveyances so far as they were executed, yet it would not enforce executory agree- ments or covenants. " We admit the validity of the deed as a conveyance," said the court, " but deny the obligation of the covenants which it contains." * So where the bill is filed for contribution or exoneration. Thus in a case in the Irish Chancery, one seised of several estates, and indebted by judgment, settled one of them for a valuable consid- eration, with a covenant against incumbrances, and subsequently acknowledged other judgments, and it was held that the prior judgments must be thrown entirely upon the unsettled estates, and that the subsequent judgment creditors had no right to make the to what extent a court of equity will give the assignee, without any further or other effect to it depends on the nature of the act to be done by the assignor." It must covenant and the frame of the suit. The be observed of the cases of Jefferys v. Jef- frame of this suit is not for the adminis- ferys and Ward v. Audland, that while the tration of the assets, but for the recovery decisions, so far as respects the subject of of the specific property, and the covenant the covenants for title, are unquestionably is such that nominal damages would alone sound, yet that they have been properly be recovered at law." And the court said : qualified upon another point, as it is now " It appears to me that neither a voluntary well settled in England that the mere ab- assignment, by deed, of a mortgage debt, sence of consideration will not, of itself, accompanied by a grant, not specifying be a sufficient ground to deny relief, pro- the particular estate but of all estates held vided the transaction has taken the form in mortgage, and by a covenant for further of a trust, and the grantor has done all assurance, without delivery of the mort- in his power to perfect it. Kekewich v. gage deed or notice to the mortgagor, nor Manning, 1 De Gex, M. & G. 176. Notes the voluntary assignment of a policy of to Ellison v. Ellison, 1 Lead. Cas. in Eq. assurance retained in the hands of the as- where the cases are collected. But this signor, and without notice given to the does not apply to the ordinary case of a grantor, though accompanied by a cove- voluntary deed, nor to the covenants con- nant for further assurance, can be consid- tained therein. ered as a complete and effectual assign- 1 Duvoll v. Wilson, 9 Barb. S. C. ment, to be acted upon and enforced by (N. Y.) 487. 621 § 368.] THE JURISDICTION OP EQUITY [CHAP. XV. settled estates contribute ; 1 and a similar decision has since been made in England. 2 § 368. In Stock v. Aylward, 3 however, one seised of an estate in fee subject to a charge in favor of another, by a voluntary conveyance reciting the charge though misstating its amount, settled the estate upon himself for life, remainder to his eldest son for life, remainder in strict settlement, and covenanted for further assurance ; the charge being subsequently paid during the lifetime of the settlor out of the rents and profits of his life estate, his judgment creditors, after his death, petitioned to com- pel the inheritance to refund the amount thus paid, but the court said that the effect of the covenant was to exonerate the estate from the payment of this debt, and the petition was refused. 4 But this decision seems open to much question, and in a later case in the same court received so marked a qualification as almost to amount to its reversal. The owner of lands which were subject to a paramount incumbrance created by his ancestor, hav- ing conveyed one part thereof by a voluntary deed which contained a covenant for further assurance, and devised the remaining part, it was held that the covenant for further assurance did not exon- erate the grantee from contributing to the payment of the para- mount charge, though the court seemed to think that the decision 1 Averall v. "Wade, Lloyd & Goold, ther assurance," said the Chancellor, " a (temp. Sugd.) 252 ; supra, p. 502, n. 1. purchaser may, as a matter of course, re- " Here is a covenant," said the Chancel- quire the removal of a judgment or other lor, " that the estate is free from incum- incumbrance, it would seem to me that brances. Assuming that there was no under this covenant the settlor would be such covenant, but a mere declaration that bound to exonerate from his own debt, the estate was free from incumbrances, secured by the judgment, the estates of there can be no doubt that that declaration those taking in remainder under this set- would throw the incumbrances on the un- tlement [Sugd. on Vend. (14th ed.) 613]. settled estate. I cannot put the point on This judgment has been satisfied out of lower grounds, but I can put it on much the rents and profits of his life estate ; higher. The covenant is enforced not by and now it is sought, against his will and giving damages, because this court does in violation of his covenant, to have the not give damages [see supra, p. 603 et seq.], amount paid a second time out of the es- but according to the peculiar jurisdiction tate upon which it originally attached as of this court, by specifically doing that a lien. If an action were brought on the which ought to be done." covenant by reason of the proceeding 2 Hughes v. Williams, 3 Mac. & Gor. against the inheritance, the answer at law 683. The facts were almost identical with would be, the judgment has been paid those in Averall v. Wade, and that decis- and satisfied by the settlor. Can the same ion was approved. facts supply the defence of the one party 3 8 Irish Ch. R. 429, per Napier, C. and the claims of the other ? " 4 " Now if, under a covenant for fur- 622 § 368.] AS TO COVENANTS FOR TITLE. [CHAP. XV. would have been otherwise if the conveyance had contained a covenant against incumbrances. 1 And in referring to Stock v. Aylward, the court refused to extend the doctrine of that case to a deed without consideration. 2 i Ker v. Ker, Irish R. 4 Eq. 15. " This was a voluntary deed," said the Chancellor, "and it contained no covenant save . . . for further assurance. . . . When that vol- untary deed was executed, the lands con- veyed hy it were well charged in the hands of the grantor with the paramount incum- brances created by Alexander Ker. ... It was clearly in the power of the grantor, Andrew Ker, to relieve the grantee from them ; he might have made the gift free and absolute, and covenanted so as to take away the grantee's liability. But has he done so ? I think not. By this volun- tary instrument, he gives what he had, and nothing else ; and what he had was Lisalea, onerated by the paramount incum- brances. Neither by his will nor by his codicil, on which reliance has been placed in the argument, does the effect of the deed in this respect appear to have been altered. ... It might have been otherwise if Stopford had been a purchaser for value. It would certainly have been otherwise if he had obtained a covenant against incum- brances. In that case he would have been entitled to indemnity for contribution from the grantor or from his devisees, if the in- cumbrances, or any portion of them, had been levied from Lisalea. But, as the mat- ter was, I think he could not. . . . The grantor would have been entitled to say, ' By my voluntary gift I placed you in my own position quoad the subject of it ; but I did no more. I gave you the ben- efit subject to the burden, and, accept- ing the land, you became liable to the in- cumbrances.' We must take the deed as we find it ; and, if the want of a covenant against them affects the grantee injuri- ously, this court cannot supply the defect, because of its voluntary character. Aver- all v. Wade [supra, p. 622, n. 1] was a case in which there was valuable consideration and a covenant against incumbrances, and this is observed upon in Handcock v. Handcock, 1 Irish Ch. 444." 2 "In Stock v. Aylward, 8 Irish Ch. 429, it was assumed," continued the Chan- cellor, "that, 'under a covenant lor fur- ther assurance, a purchaser may, as a matter of course, require the removal of a judgment or other incumbrance.' . . . The references in support of this opinion are to the two cases to which I have adverted. And looking at them, and considering that in King v. Jones, 5 Taunt. 420, there was not a voluntary deed, but a deed for value, which may or may not have con- tained a covenant against incumbrances, but, being for value, probably did contain such a covenant, and at all events im- ported a right to protection not implied in a voluntary conveyance, and seeing that upon that case the subsequent dicta have been founded, I think it is not too much to take them in connection with the spe- cial circumstances to which they had refer- ence, and refuse to extend their operation to a deed without value. We are asked, in effect, to import into it a covenant against incumbrances, which may have been deliberately omitted by the grantor, and we cannot, as I have said already, exert the powers of this court to supply imperfections in a voluntary instrument." So in the more recent case in the same court of In re Gardner, 11 Irish Ch. 519, a tenant for life, having power to charge the estate with a sum for his own ben- efit, conveyed the property subject to the charge, for a valuable consideration, to the remainderman, covenanting for quiet enjoyment. A judgment for a greater amount than the charge had been pre- viously recovered against the tenant for life, and a receiver of the lands appointed ; this judgment was subsequently purchased by the owner of the property, and upon a petition by the tenant for life to raise the charge out of the estate, it was held that the proceedings under the judgment were a breach of the covenant for quiet enjoy- ment, and that the covenant having bound the grantor to indemnify his grantee, the former could not assert a claim to the 623 § 369.] THE JURISDICTION OP EQUITY [CHAP. XV. So it has been held in Massachusetts, that where a tract of land is subject to a mortgage, and a part thereof is for valuable con- sideration conveyed with a covenant of warranty, the covenant exempts the grantee from the payment of any portion of the mort- gage, provided the lands remaining in the hands of the grantor are of sufficient value to satisfy the charge ; but if the remaining security is insufficient to discharge the incumbrance, then the premises are liable in the inverse order of their alienation, 1 and this familiar doctrine is everywhere enforced irrespective of the covenants for title. 2 § 869. And, next, as to injunction. Although we have thus seen that the jurisdiction of equity in the specific performance of covenants for title is shown in a large class of cases, yet they yield in number to those in which the remedy is sought to be enforced by means of the writ of injunc- tion. The cases are generally those in which the covenantee or those claiming under him comes into equity to restrain the col- lection of unpaid purchase money, but there are a few instances in which a somewhat similar jurisdiction has been successfully invoked at the suit of the covenantor. Thus in an early case in England, " the defendant had drawn in the plaintiff, a young man, and purchased an estate of him at charge while the judgment was unsatisfied tinue the receiver ; hut it was held that and the receiver outstanding, and the the freehold, as well as the settled estates, petition was therefore refused. became the subjects of the trust, and that So where, in another Irish case (Stack the son took them discharged of the lien v. Royse, 12 Irish Ch. 246), a grantor in of the judgment. a marriage settlement seised of estates in 1 Chase v. Woodbury, 6 Cush. 143 ; fee and for life, settled his fee simple es- Bradley v. George, 2 Allen, 393 ; George v. tates in trust for himself for life, remainder Wood, 11 id. 41; McClaskey v. O'Brien, to the objects of his appointment, with re- 16 W. Va. 791. Supra, p. 502, n. 1. mainder over, covenanting "to do any 2 Guion v. Knapp, 6 Paige Ch. (N. Y.) act or execute any conveyance, if required, 35 ; dimming v. Gumming, 3 Kelly, (Ga.) of and concerning the specified lands or 482; 2 Washb. on Real Property (5th ed. ), any other lands and premises of which he 212 ; notes to Aldrich v. Cooper, 2 Lead, should at any time be possessed or entitled Cas. in Eq. In Cooper v. Bigly, 13 Mich, to, in order to more fully effectuate and 475, it was held that as between grantor carry out the true intent and meaning of and grantee a covenant of warranty was the settlement," and afterwards exercised only evidence of the intention not to the power of appointment in favor of his charge the land sold with a proportionate son. Upon a judgment being subsequently part of a paramount mortgage, and that obtained against the settlor, a receiver was the absence of the covenant was no ground appointed, during his lifetime, of both to hold that the intent could not be pre- the Iff simple and the freehold lands, and sumed. Supra, p. 502, n. 1. after his death a motion was made to con- 624 § 369.] AS TO COVENANTS FOR TITLE. [CHAP. XV. a great undervalue ; and it happened that the title was defective, and the defendant had been evicted ; and there being covenants for quiet enjoyment and other securities entered into by the plaintiff, he now came to be relieved against an action brought on these covenants, and for the defendant Svvaine it was insisted that he ought to have the value of the estate evicted ; " but Lord Keeper North said, " The defendant, who was a lawyer, and ought to have understood a title, purchased this estate at a great undervalue, and the title now proving defective, and the land evicted, it is unreasonable he should make an advantage of this catching bar- gain ; and therefore decreed him his purchase-money with interest only, discounting mesne profits." 1 So in a case in Connecticut, the complainants had sold a large lot of ground in the city of Hartford, with covenants for the title. The purchaser had however, in addition to the covenants, required from the vendors security to save him harmless from a lien which the city claimed to have against the property for paving done in front of it some years before, and the vendors then filed a bill against the city, praying that it disclose the grounds of the claim and the amount of the lien, if it existed, and upon payment thereof release the premises therefrom ; or, if invalid, that the city be enjoined from prosecuting it. Upon reference to a master he reported that the lien was invalid ; whereupon it was urged on behf If of the city, that if the lien were void on its face equity would neither interfere to set it aside nor enjoin an attempt to enforce it; that the complainants had an adequate remedy at 1 Zouch v. Swaine, 1 Vern. 320. gether with the costs in the former action, In Sanders v. Wagner, 32 N. J. Eq. 506, and the costs of the defendants in the in- after an exchange of lands by deeds with junction suit, the injunction was granted, full covenants, the executors of one party I n McKinney v. Watts, 3 Marsh. (Ky.) discovered that there was no title of record 268, a covenantor filed a bill for relief to the lands received by him (unseated against a judgment obtained against him lands in Pennsylvania), and that they had at law upon his covenants, and for the been sold for taxes, whereupon they bought quieting of the title, which was sustained in the tax title and sued on the covenants, principally, it would seem, on the ground The defendant in that action then sought of the purchaser having received, on his to enjoin it, and proved that the taxes on eviction by the holder of the paramount both properties were, by agreement, ex- title, allowance under the occupying claim- cepted from the operation of the cove- ant law for improvements, for which allow- nants, and that, at the time of the ex- ance the complainant had received no change, he had a valid title, which he had credit in the judgment recovered against since put on record. On his payment of him. the cost of the tax title with interest, to- 40 625 369.] THE JURISDICTION OF EQUITY [CHAP. XV. law for the contract price, to which, if the lien were invalid, there could be no defence ; and that the plaintiffs, having sold and conveyed the property, had no longer any interest in it which equity could protect. But these objections were overruled by the court, and a decree entered for the complainants. 1 So in a case in Georgia, the complainant, having sold land with a covenant of warranty, averred in his bill that the defendant was combining with a prior vendor of the land, whose deed had con- tained no covenants, to set up a claim by reason of the defective probate of that deed, had purchased the claim for a nominal con- sideration, and had brought an ejectment for the land in the name of the assignor, and prayed that the assignment of the claim might be declared fraudulent and be cancelled, or that the defend- ant be decreed a trustee for the purchaser, and quiet his title by conveying to him, and that the ejectment be enjoined. Upon demurrer, the court below dismissed the bill, but this was reversed 1 Chipman v. City of Hartford, 21 Conn. 488. Jn answer to the first objec- tion, the court distinguished the case from those which decided that where the mere object of the bill was the cancellation of an instrument void on its face, equity would not interfere. "This bill does not ask for the bare cancellation of a deed. The city of Hartford had instituted certain proceed- ings, which they claimed had resulted in fixing a lien upon the property of the plain- tiffs. . . . Aside from any discovery sought, this bill is not merely quia timet, but the claim of the defendants is working a pres- ent injury by actually preventing purchas- ers from making payment of the stipulated price to the plaintiffs, by reason of the cloud upon their title. 2 Story's Eq. § 700. In Simpson v. Lord Howden, 3 Myl. & Cr. 99, an action at law was pending to try the same question; and in Peirsoll v. Elliott, 6 Pet. (S. C. U. S.) 98, the same question had been already determined ; but here the plaintiffs were left in the dark and in doubt, because the defendants still insisted upon their lien, and yet instituted no means to enforce it. They have left the plain- tiffs to the expense of determining their rights, only in this way, and by this bill ; and now, not until the county court upon this hearing has decided that no such in- 626 cumbrance exists, the defendants very un- graciously say, Yes, this is true, and so ob- viously true that the plaintiffs have never been in danger, and have had no just occa- sion to bring us into a court of equity. If the defendants had demurred to the bill at first, acknowledging their want of a lien, their defence would have appeared better." In answer to the objection that the plain- tiffs had a remedy at law against their pur- chasers, it was said that apart from the ground that such an objection, being one to the jurisdiction, should have been made at an earlier stage, yet that it had no foundation in this case. " We are not aware of any case which decides that if the plaintiff has an equity against the defend- ant, a court of equity loses its jurisdiction because there may be a remedy at law at the election of the party against a stranger or some other person." And in answer to the objection that the plaintiffs, having conveyed the land, had no interest which equity could protect, it was said that although they did not own the land itself, still they had an essential interest in the question of the title by which the pur- chasers under them held the land, by rea- son of the covenants for title in their deeds. It was obvious that their interest was as direct as if they then held the land. 369.] AS TO COVENANTS FOR TITLE. [CHAP. XV. in the court above, where it was held that the complainant was entitled to the relief prayed for. 1 So in a case in Illinois, a mortgagor of land having obtained a release of the mortgage from one of the mortgagees (which it was contended was binding on the other), conveyed the premises with covenants to a purchaser, against whom the other mortgagee com- menced proceedings of foreclosure to which the vendor was not made a party, and the latter then filed a bill against the mort- gagee, praying that he be enjoined from their further prosecution, and be decreed to satisfy the mortgage of record. It was objected that the complainant had a complete remedy at law by reason of his power to set up the release as a defence against any action brought on the covenants ; but the court held that he was not obliged to postpone the assertion of his rights until that time, when perhaps his evidence might have passed beyond his reach. And the decree which had been entered below for the complainant was affirmed. 2 1 Redwine v. Brown, 10 Ga. 311. The argument on behalf of the defendant was chiefly directed to tli3 point that the pur- chaser from the complainant could main- tain no action on the covenants of any but his own immediate vendor, as to which, however, the law has long been well settled ; see supra, § 214 ; and the court said in conclusion, ' ' We are well satisfied that in case the present owner should lose this land, he would be entitled to go back upon the complainants, upon the covenant of war- ranty to Dominick, and that consequently he is rectus in curia as complainant in the bill, seeking to have the incumbrance on the title removed." In Bush v. Keller, 2 Cart. (Ind. ), 69, a bill was filed by a vendor to prevent his vendee from suing on the covenants for title, or from setting them up by way of defence to payment of the purchase money, on the ground of mistake in the original preparation of the deed, which it was alleged was to be only a quit- claim deed, but in which a warranty had been inserted by mistake. The court below decreed for the complainant, but this was reversed on error, on the ground that the evidence had by no means substantiated the charge of mistake. In Taylor r. Oilman, 25 Verm. 411 (infra, p. 654, n. 4), the court sustained a bill filed by a covenantor to restrain his covenantee from suing on the covenants for title, not on the ground of accident or mistake in the insertion of the covenants themselves, but of fraud on the part of the latter in seeking to enforce them in opposition to a distinct agree- ment between the covenantor and himself, which, though denied in the answer, was sustained by proof. See supra, p. 113, n. 2. See as to the reformation in equity of the covenants for title, infra, § 3S3 ct seq. 2 Hubbard v. Jasinski, 46 111. 160. "Moreover," said the court, "this is a controversy between Jasinski [the mort- gagor] and Hubbard [one of the mortga- gees], and should be settled between them, instead of being litigated between Arneson [the purchaser] and Jasinski. Justice to Arneson requires this. If Jasinski has paid this mortgage in a manner to be binding upon Hubbard, the attempt of the latter to foreclose it is a wrong both to Jasinski and to Arneson, and the former, as the party ultimately liable upon his covenants to the latter, must be permitted to bring Hubbard before the court for the purpose of settling the question of payment, and having the mortgage fully cancelled upon the records in case it has been paid. Only 627 § 370.] THE JURISDICTION OF EQUITY [CHAP. XV. In a case in New Hampshire, while the court seemed to be of opinion, that although it might be doubtful whether one who had no other interest in land than his liability on his covenants could singly maintain a bill which sought to quiet the possession by an injunction merely, it yet held that where other relief was sought, and an account was to be stated between the covenantor and the defendant, the bill could be sustained. 1 So in a case in Mississippi, the complainant having bought at sheriff's sale certain land which had been entered by the debtor at the land office, subsequently sold it with covenants for title to one against whom an ejectment was brought by parties claiming under patents from the government issued to them by virtue of alleged prior assignments to them by the debtor, and the com- plainant filed a bill against these parties for a discovery of the date of the alleged assignments, and for an injunction to restrain their further proceeding in their suits against his vendee. On demurrer, the bill was dismissed ; but this was reversed on ap- peal, the court being of opinion that the complainant, being bound to protect the title of his vendee, could avail himself of any remedy open to the latter ; that it being settled in that State that if the lands had been validly sold under execution before the patent had been issued the complainant had acquired a good title, he was entitled to discovery of the date of the alleged as- signment, and, coming into equity for one purpose, could main- tain his bill for complete relief. 2 § 370. But a court of equity will not draw to itself a jurisdic- tion of which courts of law have cognizance, unless there be some mistake, accident, or fraud which would deprive the party of a defence at law ; and in a case in Wisconsin, a vendor who had sold land with covenants for title filed a bill against his vendee (who had sued him upon those covenants) and the heirs of a prior vendor of the land, alleging the loss of the deed from that vendor, in this way can complete justice be done. Minn. 195, and Browning v. Crisman, 30 If Hubbard had made Jasinski a party to Mo. 355, were cases in which it was held the foreclosure suit, this controversy might that a covenantor, by reason of his liability have been settled there, and this suit on his covenants, was properly joined or would have been unnecessary." It is brought in as a defendant, relief being possible that the local practice in that sought against other parties also. State did not permit the mortgagor to 1 Brooks v. Fowle, 14 N. H. 248. apply to be made a party defendant in the 2 Huntingdon v. Grantland, 33 Miss, foreclosure suit. Johnston v. Piper, 4 454. 628 § 372.] AS TO COVENANTS FOR TITLE. [CHAP. XV. and praying that the latter might be perpetually enjoined from setting up any title to the premises, that the purchaser be decreed to have no cause of action against the complainant by reason of the supposed defect of title, and that he be enjoined from pros- ecuting his suit at law. But the bill was dismissed, the court considering that in effect it was asked to decree a nonsuit in a suit at law ; that there had been no fraud, accident, or mistake which would make it against conscience for the purchaser to main- tain his action ; that it was not asserted that the loss of the deed endangered the complainant's defence to that suit, and that proof of that loss could be as well supplied in a court of law as in equity. 1 And in New York it is considered that a party cannot maintain a suit to remove a cloud upon the title to land in which he has no interest, and upon the sole ground that he is liable on his covenants. 2 § 371. Nor, according to the present apparent weight of author- ity, as has been already seen, will equity deprive a covenantee of his right to damages for a breach of the covenants, by compelling him, at the suit of his covenantor, to accept a title subsequently acquired by the latter; 3 while, at the same time, after such damages shall have been so recovered, the covenantee will be restrained from setting up, as against his covenantor, that title which, by his action on the covenant, he had asserted to be defective ; and in such cases a reconveyance would probably be decreed.* § 372. The remedy in equity by the process of injunction is perhaps most frequently invoked by an owner of land to restrain the collection of unpaid purchase money or to rescind the contract, and as may be imagined, the books swarm with cases on the subject. The result may be thus stated in a word : so far as the case rests on contract, and apart from all question of fraud, unless the purchaser has a present right to damages upon his 1 Rogers v. Cross, 3 Chand. (Wis.) 34. agreement that in case of a failure of title, 2 Bissell v. Kellogg, 60 Barb. (N.Y. ) the damages should not exceed two thou- 617; Townsend v. Goelet, 11 Abb. Pr. R. sand dollars. The covenantor alleged 187; Phillips v. Mayor of New York, 2 failure of title, and petitioned for a release Hun, 215. from his covenants, and a reconveyance 8 Supra, §§ 179, 258. Neither will a on payment of this sum. The court held covenantee be forced to rescind the con- that the failure of title was not proved, tract against his will. In Trevins v. Can- but that in any event the plaintiff could tee, 61 Tex. 88, there had been a convey- not compel a reconveyance, ance with covenant of warranty, and an 4 Supra, § 185. 629 § 372.] THE JURISDICTION OF EQUITY [CHAP. XV. covenants, relief, in the absence of the insolvency or non-resi- dence of the vendor, is in general refused. The leading cases are the two early ones in New York of Bumpus v. Platner and Abbott v. Allen. In the first of them, decided in 1814, 1 where the bill prayed an injunction to restrain proceedings on a mortgage given for the purchase money, on the ground that the title had been previously conveyed to another, all of whose estate had become forfeited to the Commonwealth, Chancellor Kent, admitting that it was difficult to extract from the books what was the rule of equity on this point of failure of consider- ation, still apprehended that it might be safely said that there was no case for relief where possession had passed and continued without any eviction at law under a paramount title. He consid- ered an eviction at law an indispensable part of the plaintiffs' claim to relief. 2 The defendant conveyed to the plaintiffs with covenant of warranty, and he was bound to defend their title, and non constat that he was not able and willing to do it. If the title failed, the plaintiffs could resort to the covenants in their deed for their indemnity. Hence it was said to be without precedent, and dangerous in principle, to arrest the collection of the pur- chase money on the mere allegation of a failure of title, without more. In Abbott v. Allen, 3 whose features were substantially similar, a doubt having been cast in the argument over the correctness of this decision, the Chancellor, on reviewing it, was satisfied of its soundness. " It would," he said, " lead to the greatest incon- venience, and perhaps abuse, if a purchaser in the actual enjoy- ment of land, and when no third person asserts or takes any measures to assert a hostile claim, can be permitted, on suggestion of a defect or failure of title, and on the principle of quia timet, to stop the payment of the purchase money and of all proceedings at law to recover it. Can this court proceed to try the validity of the outstanding claim in the absence of the party in whom it is supposed to reside, or must he be brought into court against his will, to assert or renounce a title which he never asserted, and perhaps never thought of ? The only plausible argument for the injunction is, that as the plaintiff has covenants to secure his 1 1 Johns. Ch. 213. tion by legal process. See supra, § 132 2 This, however, has been since modi- et seq. fied so far as eviction at law means evic- 8 2 Johns. Ch. 519, decided in 1817. 630 § 873.] AS TO COVENANTS FOR TITLE. [CHAP. XV. title, the interference of this court is necessary to prevent circuity of action, and that the plaintiff ought not to be compelled to pay the purchase money, when by a suit on his covenants he might, almost concurrently, be enabled to recover it back again. This argument would apply to every case of mutual and independent covenants, and would prove too much ; but the proper answer here is, that to sustain the injunction would be assuming the fact of a failure of title before eviction, or trial at law, and which this court, as not possessing any direct jurisdiction over legal titles, is not bound or authorized to assume. This court may perhaps try title to land when it arises incidentally ; but it is understood not to be within its province when the case depends on a simple legal title, and is brought up directly by the bill. The power is only to be exercised in difficult and complicated cases, affording peculiar grounds for equitable interference." The question that might be presented, if there had been a previous eviction, or an existing incumbrance which appeared to admit of no dispute, was here left undecided. It would be hazardous, it was said, to define the limits of equitable relief in supposable cases of the like kind. 1 § 373. Within a few weeks, however, of this decision, the case of Johnson v. Gere 2 was presented before the same court, upon an ex parte application for an injunction to restrain proceedings on a mortgage given for the purchase money of land which had been conveyed with covenants for title, on the ground of an eject- ment having been brought to recover the possession, and the bill prayed for a preliminary injunction until answer and the further order of the court. " The Chancellor granted the injunction, and distinguished this case from those wherein there was only an alle- gation of an outstanding title and no disturbance, prosecution, or eviction thereon. Here the party was actually prosecuted by an 1 It may however be observed that the adverse title in cases where the pur- when a question of title is presented, whose chaser has a present right to actual dam- determination is incidental and necessary ages, and the relief is based solely on the to the relief prayed, equity will not deny ground of preventing circuity of action, that relief merely because the question of For in such cases it must determine that title is involved. Such questions must be the right to damages exists, and it is by no necessarily determined in nearly every case means usual that it is relieved as to this of specific performance, and come clearly by the previous judgment of a common within the concurrent jurisdiction of law court. equity. It is, moreover, impossible in ' 2 2 Johns. Ch. 546. practice for a court to refuse to examine 631 § 374.] THE JURISDICTION OF EQUITY [CHAP. XV. action of ejectment, on the ground that the title derived from the defendant was defective. The defendant is entitled and it will be his duty to defend the ejectment suit, and until that suit is disposed of, he ought not to recover the remaining moneys due on the bond." § 374. This decision, however, is not now regarded as a pre- cedent, 1 although occasionally cited with approbation, 2 and while it has at times been intimated that equity will not relieve unless there has been an eviction, " or a suit actually commenced to recover the land," 3 yet in none of those cases did that circum- stance occur, and the general course of decision in New York has not only repudiated the doctrine of Johnson v. Gere, 4 but has re- 1 Chancellor Kent, who had himself granted the injunction in Johnson v. Gere, (which, however, was only preliminary, and according to the practice at that day it was almost of course to dissolve the in- junction on the coming in of the answer denying the bill,) takes no notice of the case in his Commentaries (2 Coram. 472), while he quotes with approbation the case of Abbott v. Allen, and those which have followed it. 2 Thus in the early case in New Jersey of Shannon v. Marselis, Saxton, 413, all the parties to the title were before the court, and there could therefore be with propriety an equitable settlement of mu- tual claims, and the case did not need the authority of Johnson v. Gere, and the same remark applies to the cases of Van Riper v. Williams, 1 Green Ch. (N. J.) 407; Van Waggoner v. McEwen, id. 412 ; and Jaques v. Esler, 3 id. 462. But in the later case of Glenn v. Whipple, 1 Beasley Ch. (N. J.) 50, it was held that it was no defence to a foreclosure suit on a mortgage for purchase money that the grantor's wife had not joined in the deed and was now claiming dower, and the Chancellor said that Johnson v. Gere did not carry the doctrine to this extent. And although it is said to be a general rule that before a vendor is entitled to a decree of foreclosure on a purchase-money mortgage, he must pay off or otherwise get rid of any prior incumbrance covered by the covenants for title (Dayton v. Dusenbury, 25 N. J. Eq. 110; Union Bank v. Pinner, id. 495 ; 632 Stiger v. Bacon, 29 id. 442), yet apart from this, the later cases are in accord with the general current of authority. Heile v. Davison, 5 C. E. Green Ch. (N. J.) 228 ; Hulfish v. O'Brien, id. 230 ; Cooper v. Bloodgood, 32 N. J. Eq. 209. In White ?'. Stretch, 22 id. 76, there was an express contemporaneous agreement to pay off a certain assessment if decided to be valid, which it afterwards was. In Sanders v. Wagner, 32 id. 506, the bill was sustained on the ground of mistake. 3 Leggett v. McCarty, 3 Edwards Ch. (N. Y.) 126 ; Edwards v. Bodine, 26 Wend. (N. Y.) 114. 4 The authority of Johnson v. Gere was denied in Piatt v. Gilchrist, 3 Sandf. S. C. (N. Y.) 118, and also in Miller v. Avery, 2 Barb. Ch. (N. Y.) 594, where Chancellor Walworth said, " I think it evident that the reporter was under a mis- take in the statement of the case, or that the Chancellor overlooked the fact that it was not alleged in the bill that the com- plainants ever believed their title to the land was defective. For it cannot be pos- sible that he intended to decide that a mere claim of a paramount title by a third person, and the bringing of a suit upon that claim against the purchaser, was suffi- cient to authorize the court to stay the vendor, who had warranted the title, from proceeding at law or in equity to collect the unpaid purchase money. If the law was so, any vendee who was not ready to pay his purchase money when it became due, might make a secret arrangement § 374.] AS TO COVENANTS FOR TITLE. [CHAP. XV. strained the application of the quia timet jurisdiction of equity in this connection within such narrow limits as almost to amount to its denial. Thus where, on a bill to foreclose a mortgage given for the purchase money of land conveyed with warranty, the an- swer alleged that a suit had been brought by persons claiming the premises by paramount title, and prayed that the foreclosure and sale might be deferred until this should have been determined, it was held that although after eviction relief would be extended in order to prevent circuity of action, yet until that event the court had no authority to interfere. 1 " The purchaser in this case with some third person to claim the prem- ises and bring an ejectment snit therefor, and thus tie up the vendor from collect- ing his debt indefinitely. For, if the vendor should be allowed by the court at law to interfere with the defence of the ejectment suit so as to get it out of court in a reasonable time, the plaintiff might submit to a nonsuit and then bring a new action. And such new action, either by the original plaintiff or by a new claimant, would entitle the vendee to a new de- cree, staying the collection of the purchase money until the final termination of that suit." 1 Piatt v. Gilchrist, 3 Sandf. S. C. 118. In Virginia, the practice was intro- duced at an early period, for the purpose of enabling a mortgagee to obtain payment without the delay and expense of a bill of foreclosure, of conveying the lands to a trustee, in trust to sell upon non-payment at the appointed time, and under such deeds of trust courts of equity in that State were liberal in enjoining sales where defects of title, covered by the covenants, could be shown to exist. Thus in Gay v. Hancock, 1 Eand. 72, where the purchaser proved an outstanding claim embraced within the covenants, and a suit then ac- tually pending under it, the court of ap- peals held that the sale should be enjoined until the cloud resting on the title in con- sequence of the claim should be removed. This decision was approved and followed in subsequent cases ; Ralston v. Miller, 3 id. 49 ; Miller v. Argyle, 5 Leigh, 467 ; Koger v. Kane, id. 606 ; Long v. Israel, 9 id. 569 ; and it was admitted that the court had, in favor of purchasers, gone far beyond anything which had been sanc- tioned in England or elsewhere in enjoin- ing the payment of the purchase money, after the purchaser had taken possession under a conveyance, especially with gen- eral warranty ; but it was said that it had never gone so far as to interfere, unless the title were questioned by a suit, either prosecuted or threatened, or uidess the purchaser could show clearly that the title was defective. Ralston v. Miller, supra. In Miller v. Argyle it was said that a dis- tinction had always been strongly drawn between an injunction under a deed of trust, and in the case of a judgment at law, "for it never can be equitable to permit a sacrifice b}' sale under a doubtful title, though it may be but just that the vendor should be suffered to enforce a judgment for his purchase money, when the vendee is in possession, since the doubt about the title may eventually turn out to be frivo- lous and groundless." In Beale v. Seiveley, 8 Leigh, 675, the court, after referring to the cases of Abbott v. Allen, etc., supra, p. 630, said : " With us it cannot be de- nied that the practice has been more lax. But even with us, relief is only given to a purchaser who has obtained his deed where there has been an actual eviction, or where a suit is depending or threatened, or where the vendee, placing himself in the attitude of the superior claimant, can show a clear outstanding title or encumbrance. A still greater liberality has prevailed, it is true, in enjoining proceedings under deeds of trust, but this rests upon peculiar principles." This distinction, however, seems not to have been always sharply ob- served, and the practice sanctioned with 633 374.] THE JURISDICTION OP EQUITY [CHAP. XV. promised to pay the purchase money at stipulated periods, and the seller covenanted that if at any time the title should fail, and the purchaser be evicted by a paramount title, he would refund the purchase money with interest. The possibility that the title might fail, and the purchaser be evicted, was in the minds of the parties. They might also have provided that in case of a claim being made by title paramount before actual payment of the con- sideration money, the right of the vendor to call for its payment should be suspended. But this they have not thought proper to do, and this court can with no more propriety add such a clause to the contract and suspend the collection of the purchase money, than it can suspend the collection of rent expressly covenanted to be paid, upon the destruction of the buildings, where the parties have not themselves provided against it." 1 So where a cross-bill in a foreclosure suit averred that one claiming under a paramount title had brought ejectment for a portion of the land, of which fact the plaintiff had been notified, and prayed that the foreclosure be enjoined until the plaintiff had settled or arranged the incum- brance of this paramount title, and that the amount necessary to buy in this claim be deducted from the mortgage debt, the cross- bill was dismissed. 2 respect to deeds of trust seems to have crept into all securities given for purchase money. Yancey v. Lewis, 4 Hen. & Munf. 390 ; Long v. Israel, 9 Leigh, 569 ; Clarke v. Hardgrove, 7 Grat. 399 ; Renick v. Remick, 5 W. Va. 291. In Price v. Ayres, 10 Grat. 575, there were no covenants for title as to one purchaser, and no as- sertion of the paramount title as to the other, and relief was therefore denied to both of them. In the late case of Wams- ley v. Stalnaker, 24 W. Va. 214, where is an elaborate opinion, the court seemed to consider that the doctrine held elsewhere was the better law, but deemed itself bound by the previous course of decision in Virginia and West Virginia. 1 Piatt v. Gilchrist, supra. ' ' The court, moreover," continued Mason, J., who delivered the opinion, "if it interfere at all, must do so upon the simple fact of the claim having been made by suit, with- out reference at all to the character of the claim. ... It is easy to see how danger- ous the adoption of such a principle would 634 be ; what a temptation it would hold out to the bringing of actions by collusion in order to stay foreclosures, and how greatly it would affect the value of mortgage secu- rities of this character. . . . This decis- ion may operate severely on the defendant in this case, and especially if the adverse claim shall turn out to be well founded ; but the contrary decision would operate with severity on the plaintiff, if the title shall prove good. He is, moreover, only pursuing his legal remedy for a debt admit- ted to be due, while the defendant has all the protection for which she stipulated in the event of the title proving defective." 2 Magee v. McMillan, 30 Ala. 420. The court said, "We think the doctrine must be regarded as settled in this State, that where a sale of land is made by deed, with covenants of warranty, and the ven- dee has gone into possession under the contract, and he and those claiming under him have not been evicted, no defence, either at law or in equity, which rests on a mere incumbrance upon the title, can be § 374.] AS TO COVENANTS FOE TITLE. [CHAP. XV. So where a will giving the executor power to lease was care- lessly recorded so that the word " transfer " was substituted for " lease," and under this apparent power the executor sold to the plaintiff with covenants, taking a deed of trust to secure part of the purchase money, an injunction against a sale under the trust deed was refused. 1 So where a vendor conveyed with covenants for seisin, against incumbrances, for quiet enjoyment, and of general warranty, and received from his grantee a note for the unpaid purchase money, to secure which the latter conveyed the land to another in trust to sell if payment were not made at maturity, at which time, however, payment was refused, on the ground that part of the property was in the adverse possession of others, and that suits were pending to recover other parts, and the trustee notwith- standing, at the request of the grantor, sold the tract for a sum less than the amount of the note. The grantee then filed a bill to set aside the trustee's sale and to restrain the grantor from collect- ing the unpaid purchase money, which was decreed by the court below ; but this was reversed on appeal, and while the sale under the deed of trust was set aside owing to certain misrepresentations of the trustee and the grantor, yet it was held that the complain- ant had no equity to restrain the collection of the purchase money, having averred no fraud in the original sale, and was therefore remitted to his action upon the covenants ; and although it was in proof that the grantor was insolvent, yet as that fact was not averred in the bill the evidence was disregarded. 2 So in a very recent case in Indiana, 3 in a suit to foreclose a purchase- made, unless there was fraud in the sale, he disturbed in the possession of the prop- or the vendor is insolvent, or unable to erty." make good the covenants in his deed," 2 Hoppes v. Cheek, 21 Ark. 585. As citing Cullum v. Branch Bank, 4 Ala. 21 to the necessity of averring insolvency, see (supra, p. 566, n. 1) ; Parks v. Brooks, "Wimberg v. bcliwegeinan, infra, pp. 644, 16 id. 529 ; McLemore v. Mabson, 20 id. 645. 137 ; Patton v. England, 15 id. 69. 3 Wimberg v. Schwegeman, 97 Ind. 1 Lovingston v. Short, 77 111. 587. The 525, infra, p. 645, n. 2. The court said, court said, " The complainant entered into per Elliott, C. J. : " Our cases have stead- possession of the premises under the con- ily maintained that where a deed is re- tract of purchase, and that possessory right ceived and possession taken under it, has never been disturbed, and from aught payment of purchase money cannot be that appears never may be. No one claims defeated without showing an eviction or or has asserted paramount title. There is surrender of possession. Reasoner v. Ed- no suggestion that the warranty is not mundson, 5 Ind. 393 ; Small v. Peeves, good in case the complainant should ever 14 id. 163 ; Hacker v. Blake, 17 id. 97 ; 635 § 375.] THE JURISDICTION OF EQUITY [CHAP. XV. money mortgage, the defendant's counter claim alleged that the land was conveyed by a deed with full covenants, that the latter were broken because the grantor was not lawfully seised and had no right to convey two thirds of the land, and had only a life estate in the other one third, and did not or could not convey any greater estate, and prayed for an injunction to restrain the collec- tion of the purchase money, but the court held that the defendant had not brought himself within any of the grounds upon which equity interfered under such circumstances. § 375. The cases might be multiplied almost indefinitely, and apart from the question of fraud, and of the incidental elements of the vendor's non-residence or insolvency, the doctrine they establish is that where the only covenants in the deed are those for quiet enjoyment or of warranty, 1 and so long as there has been no eviction, actual or constructive, equity will, as a general rule, refuse to enjoin the collection of the purchase money. 2 Marvin v. Applegate, 18 id. 425 ; Estep v. Estep, 23 id. 114 ; Hanna v. Shields, 34 id. 84 ; Black v. Coan, 48 id. 385 ; Mahoney v. Robbins, 49 id. 146 ; Jones v. Noe, 71 id. 368 ; Gibson v. Richart, 83 id. 313. It is true that the breach of the covenant gave a right to nomi- nal damages, but there are very many cases holding that a judgment cannot be reversed for a failure to award nominal damages. This is expressly held in many of the cases cited, and is impliedly decided in all of them, as well as in Platter v. City of Seymour, 86 Ind. 323 ; Axtel v. Chase, 77 id. 74 ; Town of Tipton v. Jones, 77 id. 307 ; Atkins v. Van Buren School Township, 77 id. 447 ; Patton v. Hamil- ton, 12 id. 256." 1 See infra, § 378, for cases where there are also covenants for seisin, etc. 2 Busby v. Treadwell, 24 Ark. 457 ; Barkhamsted v. Case, 5 Conn. 528 ; Lov- ingston v. Short, 77 111. 587 ; Harding v. Commercial Loan Co., 84 id. 251. (In Smith v. Newton, 38 111. 230, and Weaver v. Wilson, 48 id. 128, it expressly ap- peared in the mortgage and note sued upon, that the purchase money was not to be paid unless the titles were perfect.) Rawlins v. Timberlake, 6 Mon. (Ky. ) 225 ; Simpson v. Hawkins, 1 Dana, (Ky.) 303 ; 636 Trumbo v. Lockridge, 4 Bush, (Ky. ) 416 ; English v. Thomasson, 82 Ky. 281 (where it was said, " It has been repeatedly held by this court that in the absence of fraud or insolvency or non-residence of the ven- dor, a vendee in the peaceable possession of the granted premises by virtue of a con- veyance containing a covenant of general warranty is not entitled to a rescission of the contract when sued for the purchase money, although the vendor may, at the time of the sale, have represented his title as perfect, when in fact it was not ; and that in such a case the vendee must pay the money, and rely upon the covenant of warranty in case of an evic- tion," citing Miller v. Long, 3 A. K. Marsh. (Ky.) 334 ; Gale v. Conn, 3 J. J. Marsh. (Ky.) 538 ; Campbell v. Whit- tingham, 5 id. 96 ; Simpson v. Hawkins, 3 Dana, (Ky.) 303 ; Taylor v. Lyon, 2 id. 276 ; Duvall v. Parker, 2 Duvall, (Ky. ) 182 ; Trumbo v. Lockridge, 4 Bush, (Ky. ) 415 ; Upshaw v. Debow, 7 Bush, (Ky.) 442). Anderson v. Lincoln, 5 How. (Miss.) 279 ; Coleman v. Rowe, id. 460 ; Vick v. Percy, 7 Sm. & Marsh. (Miss.) 256; Walker v. Gilbert, id. 456 ; McDonald v. Green, 9 id. 138 ; Green v. McDonald, 13 id. 445 ; Johnson v. Jones, id. 580 ; Latham v. Morgan, 1 Sm. & Marsh. Ch. (Miss.) § 376.] AS TO COVENANTS FOR TITLE. [CHAP. XV. § 376. Nor, a fortiori, in such cases will a court of equity re- scind the contract. Thus in a case in the Supreme Court of the United States, where land had been conveyed with a covenant of general warranty, the purchaser alleged as a defence to a suit to foreclose a purchase- money mortgage, that at the time of the conveyance the land was in the adverse possession of others ; but it being proved that this adverse possession was tortious, the court held that as there had been no breach of the covenant, 1 no ground existed upon which to rescind the contract ; a and this doctrine is supported by the entire weight of authority. 3 611 ; Gartman v. Jones, 24 Miss. 234 ; Wailes v. Cooper, id. 208 ; Mitchell v. MeMullen, 59 Mo. 252 ; Key v. Jennings, 66 id. 356 (where the court pertinently said, " It is a dangerous and delicate oper- ation for a court to pass upon a title which nobody is asserting and no one disput- ing") ; Hile v. Davison, 5 C. E. Green, (N. J.) 228; Cooper v. Bloodgood, 32 N. J. Eq. 209 (and see the reporter's note to the case) ; Bates v. Delavan, 5 Paige, (N. Y. ) 299 ; Hoag v. Rathbun, 1 Clarke Ch. (N. Y.) 12; Griffith v. Kempshall, id. 571 ; Denston v. Morris, 2 Edw. Ch. (N. Y.) 37 ; Leggett v. Mc- Carty, 3 id. 124 ; Withers v. Morrell, id. 560 ; Edwards v. Bodine, 26 Wend. (ST. Y.) 109 ; Woodruff v. Bunce, 9 Paige, (N. Y.) 443 ; Banks v. Walker, 2 Sandf. Ch. (N. Y.) 344 ; Miller v. Avery, 2 Barb. Ch. (N. Y.) 594; Tone v. Brace, 1 Clarke Ch. (N. Y.) 291; s. c. id. 503; 8 Paige, 582 ; 11 id. 569 ; Clanton v. Burges, 2 Dev. Eq. (N. C.) 13 ; Merritt v. Hunt, 4 Ired. Eq. (N. C. ) 406 ; Wilkins v. Hogue, 2 Jones Eq. (N. C.) 479 ; Henry v. El- liott, 6 id. 175 ; Edwards v. Morris, 1 Ohio, 524 ; Stone v. Buckner, 12 id. 73 ; Elliott v. Thompson, 4 Humph. (Tenn.) 99; Young v. Butler, 1 Head, (Tenn.) 640; Beale v. Seiveley, 8 Leigh, (Va.) 658 (and see the Virginia cases supra, p. 633, note) ; Wamsley v. Stalnaker, 24 W. Va. 214. 1 It will of course be borne in mind that to constitute a breach, the adverse possession must be under paramount title. See supra, § 137. 2 Noonan v. Lee, 2 Black, (S. C. U. S.) 499. " It is not claimed," said the court, " that there was any fraud or misrepresen- tation, or that any fact exists in regard to the title which was unknown to the grantee when he bought the property. . . . It is impossible to read the testimony and resist the conclusion that he bought the property for a purpose, and that having held the title for several years without paying anything, and accomplished that purpose, he is now seeking, under the pre- tence of defect of title, finally to avoid the payment of the purchase money, and throw back the property upon the hands of the vendor. This ungracious work a court of equity will not permit him to do." 3 Beck v. Simmons, 7 Ala. 76 ; Burkett v. Munford, 70 Ala. 423 (where the court said, " When a contract of purchase is free from fraud, we know of no authority — there is none certainly in the decisions of this court — which will justify a court of equity in interposing, at the instance of the vendee, to rescind the contract, because of the vendor's want of title, or because the title is defective, while he retains pos- session of the land, taking the benefit of the contract, unless it is clearly shown that injury must result to him from the aban- donment of the possession"); Lovington v. Short, 77 id. 587 ; Roberts v. Wool- bright,' 1 Ga. Decis. 98; M'Gehee v. Jones, 10 Ga. 135 ; Beebe v. Swartwout, 3 Gilm. (111.) 162 ; Ohling v. Luitjens, 32 111. 23 ; Miller v. Long, 3 Marsh. (Ky.) 334 ; Perciful v. Hurd, 5 J. J. Marsh, (Ky.) 670 ; Lewis v. Morton, 5 Mon. (Ky.) 1 ; Vance v. House, 5 B. Mon. (Ky.) 537 ; Casey v. Lucas, 2 Bush, ( Ky. ) 55. (In Eng- 637 378.] THE JURISDICTION OP EQUITY [CHAP. XV. § 377. The same rules are of course applied when a breach of covenant is set up as a defence to a suit in equity to foreclose a purchase-money mortgage or to enforce a vendor's lien. Thus in a foreclosure suit in New Jersey, the answer averred that the grant and covenants were for riparian property, and therefore covered the land between high and low water mark, but that the covenantee had been obliged to take a lease from the State of this part of the land, and this he claimed to be an eviction. The court held that even if the covenants were to be considered as assuring the title between high and low water mark, which was doubtful, there was no defence, for there had been no actual eviction, as the defendant " simply chose rather to acquire the right of the State to the land by obtaining a lease, than to ob- tain it by appropriation." 1 § 378. It has at times been considered that the presence of a covenant for seisin may in some cases fortify the position of a purchaser, 2 but it does not appear that the cases generally draw lish v. Thomasson, 82 Ky. 281, it was stated to be clear that equity would not rescind an executed contract for the sale of land if the purchaser were still in pos- session, nor unless there had been fraud, or the vendor was insolvent ; as to which see infra, § 380. ) Middlekauff v. Barrick, 4 Gill, (Md.) 290 ; Haldane v. Sweet, 55 Mich. 196 ; Wilty v. Hightower, 6 Sm. & Marsh. (Miss.) 345 ; McDonald v. Green, 9 id. 138 ; Green v. McDonald, 13 id. 445 ; Cooley v. Rankin, 11 Mo. 647 ; Ed- dington v. Nix, 49 id. 134 ; Beach v. Waddell, 4 Halst. Ch. (N. J.) 299 ; Leg- gett v. McCarty, 3 Edw. Ch. (N. Y.) 124 ; Woodruff v. Bunce, 9 Paige, (N. Y. ) 443 ; WMtworth v. Stuckey, 1 Rich. Eq. (S. C.) 404 (see the able remarks of Harper, Ch., in that case); Van Lew v. Parr, 2 id. 321 ; Maner v. Washington, 3 Strobh. Eq. (S. C.) 171 ; Buchanan v. Alwell, 8 Humph. (Tenn.) 518 ; Young v. Butler, 1 Head, (Tenn.) 648 ; Cohen v. Woollard, 2 Tenn. Ch. 686 ; Jones v. Fulghum, 3 id. 193; Long v. Israel, 9 Leigh, (Va.) 556; Young v. McClung, 6 Grat. (Va. ) 336 ; Prevost V. Gratz, 3 Wash. (C. C. U. S. ) 439 ; Greenleaf v. Queen, 1 Pet. (S. C. U. S ) 138 ; Patterson v. Taylor, 7 How. (S. C. U. S.) 132 ; Kimball v. West, 638 15 Wall. (S. C. U. S.) 377 ; Smoot v. Coffin, 4 Mack. (D. C. U. S.) 407. 1 Cooper v. Bloodgood, 32 N. J. Eq. 209. To the same effect are Hughes v. Hatchett, 55 Ala. 539 ; Strong v. Wad- dell, 56 id. 471 ; Wyatt v. Garlington, id. 576; Hall v. Priest, 6 Bush, (Ky.) 14 ; English v. Thomasson, 82 Ky. 281 ; Smith v. Fiting, 37 Mich. 148 ; Haldane v. Sweet, 55 id. 196 ; Miller v. Owen, Walk. (Miss.) 244 ; Harris v. Ransom, 24 Miss. 504 ; Wofford v. Ashcraft, 47 id. 641 ; Glenn v. Whipple, 1 Beas. Ch. (N. J.) 50 ; Hughes v. McNider, 90 N. C. 248 ; Huffish v. O'Brien, 5 C. E. Green, (N. J.) 230 ; Butcher v. Peterson, 26 W. Va. 447 ; Ludlow v. Gilman, 18 Wis. 552 ; Peters v. Bowman, 98 U. S. 56 ; Eis- wick v. Wallach, 3 McAr. (D. C. U. S.) 388. 2 Long v. Israel, 9 Leigh, (Va.) 569 ; Simpson v. Hawkins, 1 Dana, (Ky.) 305 ; Ward v. Grayson, 9 id. 267. Thus in Ingram v. Morgan, 4 Humph. (Tenn.) 66, the court seemed to be of opinion that but for the covenant of seisin the vendor would have been without relief, as it was said, "This [covenant] differs from a cove- nant of warranty where there is no pres- ent right of action, and can never be till § 378.] AS TO COVENANTS FOR TITLE. [CHAP. XV. much distinction between the different covenants for title. 1 For it frequently happens that a purchaser accepts his deed with full knowledge of the defect or incumbrance, and with the intention of relying upon the covenants for his protection. 2 In such case, to enjoin the collection of the purchase money because of the pres- ence of a covenant for seisin or against incumbrances, would be to make for the parties a contract they did nofr make for themselves, and it would seem to be a proper rule that the interference of equity should be refused wherever the purchaser's knowledge and the state of facts continue to be the same as they were at the time of the conveyance. 3 In many of the cases upon this subject the fact of this knowledge on the part of the purchaser was strongly relied on by the court as a ground for refusing relief ; and although it is well settled that such knowledge is of itself no bar to his recovery upon the covenants themselves in a court of law, 4 yet it is obvious that it should operate strongly, if not con- clusively, against his right to equitable relief where they are not yet so broken as to give a present right to actual damages, and such has been the ground taken in several cases decided since these remarks were first written. 5 eviction, which may never take place ; and where, therefore, a court of chancery- will grant no relief against the payment of the consideration, on the joint ground of a defect of title and the insolvency of the vendor." And in the later case of Baird v. Goodrich, 5 Heisk. (Tenn.) 20, the same court said: "The covenant of seisin, if it be false, is broken the instant it is made, and the right of action accrues at once to the covenantee. It is unlike the covenant of warranty, which if untrue, the covenantee must await an eviction before he can bring his action. And at law this is so, upon a mere failure of title, at whatever hazard of ultimate loss. . . . But a court of equity will not entertain a bill to rescind upon a mere breach of the cove- nant of seisin, without more. There must be either an allegation of fraud or the in- solvency of the vendor, or, in the language of this court, ' some other distinct ground of equitable jurisdiction.' " In Woods v. North, 6 Humph. (Tenn.) 309, cited in this decision, the case seemed to have rested on the ground that a covenant for seisin which an administrator had given was such a representation as amounted to fraud, and the contract was rescinded on the ground of misrepresentation, but it is believed that there is no well-considered class of cases which give such an interpretation to a covenant, although a remark of Sugden heretofore cited (supra, p. 547, n. 1) might be taken as a possible authority. i Beach v.Waddell, 4 Halst. Ch. (N. J. ) 308; Young v. Butler, 1 Head, (Tenn.) 646. See also Woods v. North, 6 id. 309, infra. 2 See supra, § 89 ct seq. 3 See the able opinion of Gibson, C. J., in Lighty v. Shorb, 3 Pa. (old Pa., not Pa. St.) 477, in this connection, though the student must be careful to consider that the Pennsylvania cases on this sub- ject, supra, § 335 et seq., have a peculiar local application. * Supra, § 88. 6 Worthington v. Curd, 22 Ark. 285 ; Busby v. Treadwell, 24 id. 456 ; Parkins v. Williams, 5 Cold. (Tenn.) 512 ; Hemy v. Elliott, 6 Jones Eq. (N. C.) 176 ; De- 639 § 379.] THE JURISDICTION OF EQUITY [CHAP. XV. § 379. Where, however, a purchaser would be entitled, at law, to defend from payment of the purchase money, either wholly or partially, and has had no opportunity of doing so, courts of equity have not hesitated to grant relief according to the pecu- liar circumstances of the case, by enjoining the collection of the purchase money, either temporarily or permanently, by enforcing specific performance of the covenants when necessary and possi- ble, 1 by awarding issues of quantum damnificatus, or even, in some cases where the eviction has been total, by decreeing a rescission of the contract and a return of the purchase money already paid. Thus in a case where judgment was obtained upon a bond given for the payment of the residue of purchase money, the vendor had, before the execution of the deed, which contained covenants for right to convey and of warranty, become surety upon a judgment, under which, after the execution of the deed, the use of the prop- erty for seven years was levied on and sold and possession recov- ered by the sheriff's vendee, " the court, upon bill, answer, and exhibits having ascertained by a writ of inquiry the damages which the complainant had sustained on account of the incum- brance, decreed a perpetual injunction against the judgment to the amount of the assessment and costs." 2 So where after a bill had been dismissed in which the purchaser had sought to enjoin a judgment obtained for purchase money, on the ground of an anticipated eviction, another bill was filed setting forth that since the former decree the purchaser had been actually evicted under an action of ejectment, in which his vendor and himself had been co-defendants, it was held that the judgment should be perpetually enjoined. 3 So where upon a bill filed to enforce a vendor's lien, and inci- dentally to enjoin proceedings at law to recover damages for a breach of the vendor's covenant of warranty, it appearing that the purchaser had been evicted by paramount title, and that his maret v. Bennett, 29 Tex. 267 ; Wailes v. purchase money to a greater extent than Cooper, 24 Miss. 232, supra, p. 566, n. 1. the amount paid by him to purchase the 1 Supra, § 358 et seq. land from one who had bought it at 2 Shelby v. Marshall, 1 Blackf. (Ind.) sheriffs sale under a paramount incum- 385. In Champlain v. Dotson, 13 Sm. & brance. See also Morgan v. Smith, 11 Marsh. (Miss.) 553, the court sustained a 111. 201. bill to enjoin the purchaser from setting 8 Luckett v. Triplett, 2 B. Mon. (Ky.) up a defence at law to payment of the 39. 640 § 879.] AS TO COVENANTS FOR TITLE. [CUAP. XV. damages would exceed the amount now claimed, it was held tha^ the bill was properly dismissed. 1 So where in a case in New Jersey, on a bill to foreclose a mort- gage given for the purchase money of land sold with covenants for quiet enjoyment, for further assurance, and of warranty, the defendants proved that the title was defective, that an eject- ment had been brought of which the complainants were notified and required to defend, that judgment had been entered in favor of the paramount title and execution issued, and that the de- fendants, to avoid a dispossession, purchased this title, the court held that the amount thus paid should be deducted from the mortgage debt, and referred the case to a master to ascertain the damages thus due for a breach of the covenants. 2 So in New York, where on a similar bill the defendant proved that under proceedings in partition between himself and the hold- ers of a paramount title to an undivided part of the land, their purpart had been allotted to them, and possession surrendered by him, the court held that the defendant was entitled to a credit to the amount of the damages sustained by reason of the breach of the vendor's covenant. 3 So in a case in Michigan, where the purchasers, having given a mortgage for land which had been conveyed to them with a cove- nant against incumbrances, were subsequently compelled to dis- charge a paramount claim, it was obviously held that they were entitled to deduct the amount thus paid from their mortgage. 4 1 Kingsbury v. Milner, 69 Ala. 502. of Hopper v. Lutkin, 3 id. 149, and Glenn " It requires no argument," said the court, v. Whipple, 1 Beas. Ch. 50, where relief " to show that a bill seeking to enforce was refused. such a claim is entirely destitute of equity. 3 Fowler v. Poling, 6 Barb. 165 (see The bill admits the fact of defendant's supra, p. 106, n. 1), overruling Fowler v. eviction by paramount title and the fact of Poling, 2 id. 300. In Worthiugton v. warranty, and yet seeks to enforce payment Staunton, 16 W. Va. 208, a tenant in com- of the entire purchase money. It is in the mon had conveyed part of the estate by very teeth of the fundamental principle metes and bounds with covenant of gen- of every court of conscience, that he who eral warranty, and afterwards, upon par- seeks equity must do equity." On the tition, a material part of the land con- other hand, the case of Burkett v. Munford, veyed was allotted among the other tenants 70 id. 423, supra, p. 637, n. 3, sufficiently in common, whereupon the court ordered shows that where there is mere absence of the deed to be cancelled and annulled, and title and the purchaser is still in possession, the parties restored to their original posi- the latter will be left to his legal rights. tion. 2 Coster v. Monroe Manufacturing Co., 4 Detroit R. R. Co. v. Griggs, 12 1 Green Ch. (N. J.) 476. This case is Mich. 51. plainly distinguishable from the later ones In Missouri, provision was formerly 41 641 § 380.] THE JURISDICTION OF EQUITY [CHAP. XV. § 880. There have been exceptional cases which have deter- mined that although the prosecution of the adverse title may not, of itself, be a sufficient ground to entitle a purchaser to relief^ yet that such prosecution, when coupled with the insolvency or non-residence of the party bound by the covenants, will bring the case within the quia timet jurisdiction of equity. Thus in an early case in Virginia, an injunction was held to have been properly granted to restrain proceedings on a bond given for the purchase money of land, conveyed with a covenant of warranty, upon the allegation that a suit was actually being prosecuted under a paramount title, and that the vendor was in- solvent. 1 So in a case in Kentucky, where a purchaser's personal repre- sentatives filed a bill against the vendor to enjoin a collection by him of a judgment obtained for a balance of purchase money due by their intestate, on the ground that a judgment had been recovered against them by a subsequent alienee on the covenants of their intestate, and that the vendor was insolvent, the court made by statute for the granting injunc- tions to restrain the collection of unpaid purchase money of land sold with cove- nants for title where there was a failure of title for the whole or any part thereof, denying relief, however, in any case where the purchaser had notice of the fact com- plained of before his purchase. Rev. Stats. Mo., 1845, c. 82. The provisions of the act were quoted in the fourth edition of this treatise, p. 688, n. 2, but they do not seem to be contained in the later Revised Statutes. The case of Jones v. Stanton, 11 Mo. 433, infra, p. 644, was not decided under this statute. In Henderson v. Brown, 18 Grant's Ch. (Can.) 79, which was a case of foreclosure of a purchase-money mortgage, the defend- ants' equity was sufficiently obvious, as he had been compelled to pay a mortgage cov- ered by the covenant against incumbrances, but the decision seemed to rest upon the right of the purchaser to deduct incum- brances in the case of an executory con- tract of sale (as to which see supra, p. 42). In the subsequent case of Love- lace v. Harrington, 27 id. 178, a bill was 642 filed to restrain a judgment obtained for purchase money, on the ground of the existence of an undisclosed outstanding mortgage which came within the vendor's covenant against incumbrances, and the court deemed it "plainly inequitable for a grantor who has concealed an incumbrance from a purchaser and covenanted against the existence of such incumbrance, to at- tempt to compel the payment of purchase money without deducting what may be due upon the incumbrance," which the court considered to be a cloud upon the title. If the case stopped here, it might be thought not in harmony with that class which denies relief unless the purchaser has paid off the incumbrance (siqira, § 378), but the plaintiff in his bill offered to 'pay into court the amount recovered by the judgment, and the court granted the injunction upon such payment, together with the costs of the execution issued thereon. 1 Stockton v. Cook, 3 Munf. (Va.) 68. For the course of decision in Virginia, where the purchase money is secured by a deed of trust, see supra, p. 633, note. § 380.] AS TO COVENANTS FOR TITLE. [CHAP. XV. was clearly of the opinion that the complainants were untitled to the relief prayed for. 1 So in Tennessee, the purchaser filed a bill to enjoin a judgment obtained on a note given for the purchase money of land, con- veyed with covenants for seisin and of warranty, on the ground that his vendors had but an equitable title, and that a bill had been filed to subject the land to sale for a balance of purchase money still remaining unpaid by them, and it was held that as the vendors were admitted to be utterly insolvent the complain- ant was entitled to relief. 2 So in Georgia, it was held that an injunction had been prop- erly granted upon a bill setting forth that the complainant feared a loss of the land under prior incumbrances covered by his cove- nants, and that the vendor was a non-resident, and had no prop- erty within the State ; 3 and in a case in North Carolina, it was 1 Jones V. Waggoner, 7 J. J. Marsh. (Ky. ) 144. "If the appellees," said the court, "had a legal right to the damages for which relief is sought by them, the ad- mitted insolvency of the appellant gave jurisdiction to the Chancellor, who, when he had possession of the case by injunc- tion, had a right to retain it, and give full and final redress b} 7 decreeing a set-off and any other relief that was proper, and who for that purpose had a right to assess the damages for a breach of the covenant with- out the intervention of a jury, the criterion being fixed by the contract and the law." 2 Ingram v. Morgan, 4 Humph. (Tenn.) 66. 3 Clark v. Cleghom, 5 Ga. 225. In Vance v. House, 5 B. Mon. (Ky. ) 540, it is said : "A bill for the dissolution of the contract cannot be sustained and the pay- ment of the consideration enjoined, except in the case of fraud, insolvency, or non- residency of the vendor, and a palpable and threatening danger of immediate or ultimate loss, without legal remedy, by reason of the defects in the title conveyed, and the inability of the vendee to protect himself against eviction under it. And to sustain such a bill after the vendee has ac- cepted the conveyance, the onus lies on him to establish, to the satisfaction of the Chancellor, that the defect of title and imminent danger of eviction and loss ex- ist." See also the remarks in Woodruffs. Bunce, 9 Paige, (N. Y.) 444. In Ingalls v. Morgan, 12 Barb. S. C. (N. Y. ) 578, the purchaser filed a bill to restrain the holder of a paramount judg- ment from selling the land under it, on the ground that at the time of the pur- chase it had been agreed between the ven- dor and the judgment creditor that the notes to be given for the purchase money by the complainant, who was then igno- rant of this judgment, should be applied by the vendor to its payment ; that the first note was so applied, but that the ven- dor afterwards became insolvent, and the judgment creditor, in knowledge of this fact, redelivered the remaining notes to the vendor, who passed them to third per- sons, to whom their amount was paid by the complainant. The court was clearly of the opinion that the arrangement re- ferred to must be regarded as an applica- tion of the notes to the payment of the judgment in satisfaction and discharge of its lien upon the land ; that the purchaser therefore took the land freed from its lien, and that the retransfer of the notes to the vendor, when he was known to be utterly unable to respond in damages for a breach of the covenants in his deed, was an act of bad faith towards the purchaser, and a perpetual injunction was therefore de- creed. 643 § 380.] THE JURISDICTION OF EQUITY. [CHAP. XV. held that the complainant's bill could not be sustained where the defendants were within the jurisdiction of the courts of law of that State, for the reason that the law could give complete relief in an action of covenant on the warranty contained in the deed of the defendants ; but as they were non-residents, the court would not permit the defendants to recover the purchase money for the land, the title to which was admitted to be defective, leaving to the plaintiff the precarious remedy of suing in the courts of another State for the purpose of getting back the same by way of damages in an action for the breach of the covenant of warranty. 1 In a case in Missouri, a purchaser filed a bill to enjoin a judg- ment recovered by his vendor for a balance of purchase money of certain land sold with statutory covenants for the title, alleging that the vendor's title extended to but one half of the land, and that he was insolvent. It appeared by the proofs that the defect of title was undoubted, and that the purchaser was still in pos- session, but the proof as to the vendor's solvency was somewhat contradictory, and the court held that upon the whole, taking into consideration the admitted defect in the vendor's title and the just doubt existing in relation to his ability to pay his debts, they were warranted in requiring a stay of the collection of the debt until the vendor should give security to indemnify the purchaser against any loss he might sustain in consequence of the defect of title. 2 So in a later case there, while the court refused to grant the absolute relief prayed by the purchaser, yet in consideration of the vendor's insolvency, it required security to be given by him to meet the damages which might be recovered on his cove- nants; 3 and in a very recent case, the insolvency and non-resi- dence of the vendor were considered to give to his purchaser a priority to reimbursement out of a fund before the court for distribution. 4 So in a recent case in Indiana, the element of insolvency was considered to distinguish the case from others in that State and i Green v. Campbell, 2 Jones Eq. (1ST. C.) 2 Jones v. Stanton, 11 Mo. 433. 446. In the later case of Falls v. Dickey, 3 Mitchell v. McMullen, 59 Mo. 252, 6 id. 258, the 1 >i 1 1 alleged that the vendor citing the earlier New York cases, supra, was a non-resident, but did not aver that p. 630, and many others. he had no property in the State, and this 4 Johnson v. Wilson, 77 Mo. 639, re- omission was held to be fatal to his relief, versing the decree below, which had sus- See also Richardson v. Williams, 3 id. 116. tained a demurrer to the petition. 644 § 380.] AS TO COVENANTS FOR TITLE. [CHAP. XV. elsewhere, 1 but it has also been held that this insolvency must appear in the pleadings as the ground of the relief prayed for. 2 So in a recent case in Tennessee, where a vendor's bill was filed to enforce the lien for unpaid purchase money for lands sold with covenants for seisin and of warranty, the cross-bill, in i Fehrle v. Turner, 77 Ind. 530. In an action to foreclose a purchase-money mortgage, the defendant filed a counter claim setting forth a suit brought and then pending under paramount title, that his vendor was insolvent, and praying an injunction till the question of title should be settled. A demurrer to this was sus- tained in the court below, but this was re- versed on appeal, partly on the authority of Johnson v. Gere and other early cases [supra, p. 631), and the previous case of Strong v. Downing, 34 Ind. 300, where re- lief had been refused under nearly similar circumstances, was overruled. 2 Hoppes v. Cheek, 21 Ark. 585 (su- pra, p. 635) ; Wimberg v. Schwegeman, 97 Ind. 528, 530, supra, p. 635, n. 3), where the court said : " The second paragraph of the counter claim presents an essentially different question. Counsel for appellee dispose of it by citing Strong v. Down- ing, 34 Ind. 300, but that case, upon the point to which it is here cited, was ex- pressly overruled in Fehrle v. Turner, 77 Ind. 530. The rule established by the case last cited is that an injunction may be maintained to restrain the collection of purchase money in a proper case, but it is not decided that an injunction will lie in all cases where covenants are broken by a total failure of title. What constitutes a case for injunction is not defined ; it is, however, held that there are cases where an injunction will lie. It is not in every case where there is a total failure of title and a breach of covenant, that a grantee in possession can maintain a suit to re- strain the collection of the purchase money. In order to obtain relief by in- junction, some facts showing an equity in the applicant must be stated. " We need not, and do not, decide just what facts must be alleged in order to en- title the grantee to an injunction ; we do decide that one of the material facts that must appear is the insolvency of the grantor. If the grantor is solvent, then there is a full legal remedy upon the cove- nants, and consequently no reason for re- sorting to the extraordinary remedy of injunction. The cases are well agreed upon this point. Miller v. Avery, 2 Barb. Ch. 582; Woodruff v. Bunce, 9 Paige, 443 ; Allen v. Thornton, 51 Ga. 594 ; Moore v. Hill, 59 id. 760 ; Yonge v. McCormick, 6 Fla. 368; McDunn v. City of Des Moines, 34 Io. 467. "In holding that where insolvency is alleged, the grantee may restrain the col- lection of the purchase money, we do not adopt a doctrine new to this court, for the principle upon which it rests was laid down long since in the cases of Fitch v. Polke, 7 Blackf. 564 ; Addleman v. Mor- mon, 7 id. 31 ; Buell v. Tate, id. 55 ; Ar- nold v. Curl, 18 Ind. 339. These cases seem to have been overlooked in both Strong v. Downing, supra, and Fehrle v. Turner, supra, although they bear strongly upon the question, and one at least is directly in point. " In Kickett v. Pratt, 48 Ind. 73, the doctrine of the cases cited was approved, and it was held that the matter must be pleaded in the suit to foreclose the mort- gage, and that it could not be afterwards set up in an independent suit for injunction. Confining ourselves to the point presented, we hold that the second paragraph of the counter claim was bad, because it did not allege that the grantor was insolvent." In McDunn v. City of Des Moines, 34 Io. 467, cited in Wimberg v. Schwege- man, relief was granted on the ground that the vendor was a married woman and irresponsible ; a court of equity would, therefore, restrain her from transferring the notes given for the purchase money, lest the purchaser should suffer irrepara- ble injury if sued upon by an innocent holder ; and having thus acquired juris- diction of the case, would grant the full relief necessary. 645 381.] THE JURISDICTION OF EQUITY [CHAP. XV. addition to the charge of fraudulent representation, set up in detail the alleged defects of the title and the utter insolvency of the vendor, and demanded a rescission, an account and pay- ment for permanent improvements, or that the complainants be required to deraign and show a good title, and this was sus- tained ; l and the doctrine of these cases has been recognized in many others. 2 § 381. But where there is no actual prosecution of the adverse title or incumbrance, it seems that the insolvency or non-residence of the vendor will not, when coupled with the mere existence of such title or incumbrance, give to the purchaser a right to equi- table relief. Thus in a case in Mississippi, 3 where there was no 1 Leirdv. Abernathy, 10 Heisk. (Term.) 636. The court, reversing the Chancellor, said : "The counsel for the complainants rely upon the cases of Hurley v. Coleman, 3 Head, 266, and Curd v. Davis, 1 Heisk. 574, to sustain it. The first of these cases simply holds that upon a bill to enforce a lien for purchase money the vendor need not file the evidences of his title. The vendee cannot resist merely for an insuf- ficient title in the vendor. This was, as we understand it, where the defence was set up by answer, and no fraud or insol- vency was alleged. It is held in the same case, that if there be any controversy about the title, it must be presented by cross-bill. And we understand the latter case simply to reiterate the doctrines of the first. The general rule is, that where land is bought and a deed taken with general warranty, the vendee, in the absence of fraud, has no right to an injunction against the pay- ment of the purchase money, or to seek in chancery a restoration of that already paid. He must rely upon the covenants of his deed. It is otherwise, where he has taken only a title bond. Buchanan v. Alwell, 8 Humph. 516. But a covenant of seisin made by one who has no title gives a right of action as soon as the covenant is made, and no eviction, as in covenants of war- ranty, is necessary, and when the vendor is insolvent, a court of equity will enjoin the collection of the purchase money. Ingram o. Morgan, 4 Humph. 66 ; Woods v. North, 6 id. 309. And a bill lies in such case to rescind by reason of the cir- 646 cumstances of fraud and imposition. Ibid. A court of equity, however, will not interpose in such case unless upon the ground of fraud, or the insolvency of the vendor, or some other distinct ground of equitable jurisdiction. Barrett v. Clark, 5 Sneed, 436 ; and to the same effect is the case of Young v. Butler, 1 Head, 640. The cross-bill in this case alleges both fraud and insolvency, and points out the defects in complainants' title with that particularity the law seems to require, and demands a discovery and deraignment. In such a case, a court of equity can give the relief sought in the bill, and in view of the insolvency of the vendor it is perhaps the only remedy left to defendants." And in the later case of Saint v. Taylor, 12 Heisk. (Tenn.J 488, where the circum- stances were similar, the court held that the complainant was entitled to a rescis- sion of the contract, and to be placed as nearly in statu quo as practicable. The peculiar ground of the decision in Woods v. North, 6 Humph. (Tenn.) 309, cited in Leird v. Abernathy, has been re- ferred to supra, p. 638, n. 2. 2 Walton v. Bonham, 24 Ala. 513 ; Wray v. Fumiss, 27 id. 471 (see also the remarks in Cullum v. Bank at Mobile, 4 id. 21, supra, p. 566, n. 1) ; Busby v. Tread- well, 24 Ark. 458 ; Brooks v. Moody, 25 id. 452 ; Hatcher v. Andrews, 5 Bush, (Ky. ) 662 ; Young v. Butler, 1 Head, (Tenn.) 648. 3 Latham v. Morgan, 1 Sm. & Marsh. Ch. 618. § 381.] AS TO COVENANTS FOR TITLE. [CHAP. XV. eviction, actual or threatened, it was held that, under the repeated decisions in that State, 1 the insolvency of the vendor could not help the position of the purchaser. So in a case in South Carolina, where the purchaser, after having heen ten years in possession, was advised by his counsel that there was an outstanding - title in minor children, and filed a bill for a rescission of the contract, alleging the insolvency of his vendor ; upon the facts in the bill being admitted in the answer, the court held that it was impos- sible to assimilate the case to a bill quia timet? So in a case in Kentucky, 3 it was held that if the insolvency of the vendor were to be a ground for equity to interfere, still a chancellor ought not to go further than to the extent to which a court of law would go in assessing damages for the part lost. If equity could interfere by reason of the insolvency of the warrantor to arrest the pay- ment of the purchase money, or any part of it, it would be only by clear evidence of eviction or undoubted defect of title, so as to show the covenant of warranty broken, 4 and by stopping payment of so much of the purchase money as was equal to the damages incurred by the breach. So in the same State it was held that the admitted insolvency of the vendor was no ground for an in- junction where one of the paramount owners, all of whom were minors, merely declared his intention of suing for the part belong- ing to him, 5 and the same doctrine has been announced in late cases in Arkansas. 6 . 1 The decisions referred to, however, cepted a deed of conveyance, and executed are not given. There are dicta to that the contract, he could not call upon equity, effect in Vick v. Percy, 7 Sm. & Marsh, except upon the ground of fraud, to re- 268, and Wailes v. Cooper, 24 Miss. 233. scind it, but must rely upon the covenants Supra, p. 566, n. 1. of his deed for redress." 2 Maner v. Washington, 3 Strobh. Eq. 3 Rawlins v. Timberlake, 6 Mon. (Ky.) (S. C.) 171. "The purchaser," said the 225. Chancellor, "had the legal enjoyment of i It will be of course remembered that the land, in which he might never be in- this covenant is only broken by an evic- terrupted ; but if that contingency should tion, or something equivalent to it. Supra, occur, he had a plain and adequate remedy § 132 et seq. And in Kentucky, it seems against the vendor for the breach of his to have beeii held, in some cases, that a covenant, and the possibility or even prob- judgment of a court of record in favor of ability of his being unable to pay the dam- the paramount title was sufficient to con- ages at a future time could not create such stitute an eviction. Such a doctrine, how- an equity in favor of the plaintiff as to ever, does not generally prevail. See su- bring his case within the principles of a pra, p. 161, n. 2. bill quia timet. Wherever the purchaser 6 Wiley v. Fitzpatrick, 3 J. J. Marsh, anticipated the insolvency of his vendor, (Ky. ) 583, infra, p. 649; Trumbo v. he might stipulate for sureties to the war- Lockridge, 4 Bush, (Ky. ) 416. ranty, but when he had taken possession 6 Worthington v. Curd, 22 Ark. 284 ; of the land, paid the purchase money, ac- Hoppes v. Cheek, 21 id. 590. 647 § 382.] THE JURISDICTION OF EQUITY [CHAP. XV. So in a case in the Supreme Court of the United States, where a purchaser bought with a covenant of general warranty, and find- ing after the execution of his deed that a complete chain of title could not be deduced, filed a bill for the rescission of the contract, on the ground of the defective title, and in a subsequent bill of revivor against the heirs of the vendor alleged that he had died insolvent, the court below had rescinded the contract, but the Supreme Court were clearly of the opinion that unless the ground of insolvency alone was sufficient to sustain it, the decree of that court could not be upheld, and that it was not sufficient the court had no doubt, 1 and this decision has been approved in later cases in the same court. 2 § 382. In cases, however, where all the parties to the title are before the court — the vendor, the purchaser, and the paramount claimant — and an equitable adjustment can therefore be made of their mutual rights, the fact of insolvency or of non-residence seems to have been admitted to be material. Thus where in a case in Kentucky, 3 upon a bill praying relief against a judg- ment 4 for the purchase money of land sold with a general cove- nant of warranty, it appeared that a prior mortgage had been i Pattern v. Taylor, 7 How. (S. C. U. S. ) 132. Nelson, J., after citing the cases of Bumpus v. Platner, 1 Johns. Ch. 213, Ab- bott v. Allen, 2 id. 519, Gouverneur v. Elmendorf, 5 id. 79, Simpson v. Hawkins, 1 Dana, 305 (infra, p. 650, n. 1), and James v. McKernon, 6 Johns. 543, said that these cases showed ' ' that a purchaser in the undisturbed possession of the land will not be relieved against the payment of the purchase money on the mere ground of defect of title, there being no fraud or misrepresentation ; and that in such a case he must seek his remedy at law on the covenants in his deed." 2 In Refeld v. Woodfolk, 22 How. (S. C. U. S. ) 318, the contract was executory; Xoonan v. Lee, 2 Black, (S. C. U. S.) 507, supra, p. 637, n. 2. In Tuscumbia Railroad Co. v. Rhodes, 8 Ala. 206 (where many authorities are collected and examined), the complainant, being indebted to the company on an open account, the latter assigned it to a third party, who commenced suit and obtained judgment thereon. Pending the suit, the complainant paid for the company a large 648 debt as surety for a claim existing before the assignment, and filed a bill to set off the amount thus paid against the amount of the judgment ; and it was held (reversing, after reargument, its former opinion) that although independently of the insolvency of the company the complainant had no right of set-off whatever, either in law or equity, yet that its existence introduced new relations between them whereby the complainant was entitled to retain the debt due by him independent of the manner in which it was created, until the company either relieved him from or indemnified him against his obligation. See also Hupp v. Hupp, 6 Grat. (Va.) 310. 3 Morrison v. Beckwith, 4 Mon. (Ky.i 73. 4 There were, in fact, two judgments, but as to one of them it was held that the complainant had barred his equity by rep- resentations made by him at the time of rhe transfer of the security on which the judg- ment was founded. A similar decision was made in Jaques v. Esler, 3 Green Cb- (N. J.) 461. § 382.] AS TO COVENANTS FOR TITLE. [CHAP. XV. given by a former owner of a large tract, of which this was part — that the greater part of the mortgage debt had been paid, and the mortgagor was willing to pay the balance, but the mortgagee re- fused to receive it till a certain suit had been determined — and the bill made both the mortgagee and mortgagor parties, together with the vendor, who it appeared was insolvent — it was held that although equity would not in general grant relief where a con- tract was executed, but would leave the purchaser to his action on the covenants, yet that in the case of the insolvency of the vendor it was competent for the vendee to go into equity, without intending to rescind the contract, to procure the appropriation of the purchase money to the removal of the incumbrance, and that upon this ground alone could the bill be held tenable. 1 So in a subsequent case, where a purchaser filed his bill to enjoin a judg- ment given for the purchase money of land sold with general war- ranty, on the ground that by a prior partition the more valuable portion of the land had been conveyed to one whose heirs he made co-defendants with the vendor, who was admittedly insolvent, and the court below granted an injunction, the decree was reversed on appeal, upon the express ground that no decree had been prayed for against those heirs, and that all of them had not been served with process. 2 So in a later case, it was held, after much consideration, that where the vendor was alleged to be insolvent, and there were just grounds for fearing an eviction, the Chan- cellor might interpose and suspend the payment of the purchase money, although the contract had been executed by a conveyance. 1 The court held that the proper redress (Ky.) 582. The court held that had the was not by perpetual injunction, as the complainant brought the proper parties be- complainants might thereby forever keep fore the court, and by a prayer in his bill the estate and also this part of the pur- compelled these heirs either to insist upon chase money, but by directing an account and exhibit their title to the part in ques- of the sums paid and the balance due on tion, or yield it to him, the decree of the the mortgage, of the value of the whole court below would have been correct, unless estate at the date of the mortgage, and of it should appear that their title was in- the part sold to the complainants, so as to valid. But the contract should, as to find the proportion of the mortgage money that part, be rescinded, if the vendor had chargeable thereon, and by compelling conveyed no title to it, as it would be un- either an appropriation of the purchase just to permit the purchaser to hold the money to remove the incumbrance, or deed for it, and yet have the injunction indemnification of the complainants by for the price of that part perpetuated, and other means. This part of the opinion is leave was given to the complainant to given in full in the fourth edition of this amend his bill if he thought proper, so as treatise, p. 694, note. to bring all the proper parties before the 2 Wiley v. Fitzpatrick, 3 J. J. Marsh, court. 649 § 383.] THE JURISDICTION OF EQUITY [CHAP. XV. But the court regarded it as indispensable that if there had been no eviction all the parties interested should be brought before the court, which could then settle their respective rights ; and for want of this precaution, the decree of the court below restraining the collection of the purchase money was reversed. 1 The prin- ciple of these cases is one of general application, and has been elsewhere recognized. 2 § 383. And, lastly, as to the jurisdiction in the reformation of covenants. It has long been settled that if by reason of fraud, mistake, or accident an instrument does not express the true intent and mean- ing of the parties, equity will, upon sufficient evidence, reform it, and carry it into execution as reformed. The rule of the common law that parol evidence shall not be admitted to contradict or vary a written contract rests upon the ground that " The written instrument in contemplation of law con- tains the true agreement of the parties, and that the writing fur- nishes better evidence of the sense of the parties than any that can be supplied by parol. But equity has a broader jurisdiction, 1 Simpson v. Hawkins, 1 Dana, (Ky. ) 303. The complainants had leave granted to amend their bill as in the case last cited. The following language was held by Under- wood, J., as to the complainant's equity to rescind the contract : " Regarding the protection which time had thrown round the vendors, perceiving no actual fraud on their part with the purchasers, and seeing that the contract has been fully executed by a formal conveyance with warranty of title against all the world, which warranty has not been broken by an eviction from tin- premises, and for aught that appears to us never will be, we cannot concur with the Circuit Court in a total rescission of the contract. Indeed, where contracts ai'e executed by conveyances, we are of opinion that there can be no rescission of a contract in any case, unless it has been tainted by actual fraud. If the warranty of title has been broken, so as to entitle the vendee to damages, or if the vendee be entitled to damages upon a covenant of seisin, he may apply to the Chancellor, where the vendee is insolvent, to set off those damages against the unpaid portion of the purchase 650 money. The ground upon which the Chancellor interferes in such cases is the prevention of the irreparable mischief which otherwise might result from the insolvency. He ought not to act upon the principle of rescinding the contract. On the contrary, he should affirm the con- tract, and secure to the party such dam- ages as he might be entitled to, for a partial or total violation thereof by the obligor. If a deed of conveyance be ex- ecuted for any quantity of land, and the vendee is put into possession thereafter, in case he loses half or three fourths of the land, the law only authorizes a recovery upon the warranty of damages commen- surate with the loss. The Chancellor must follow the law, and not lay hold of such a partial loss, and require the vendor to take back the portion of the land saved, and return the purchase money for that, under the idea of rescinding contracts." 2 Davis v. Logan, 5 B. Mon. (Ky.) 341; Denny i'. Wickliffe, 1 Met. (Ky.) 216; Hatcher v. Andrews, 5 Bush, (Ky. ) 561 ; Shannon v. Marselis, Saxton, (N. J.) 413; Atwood v. Vincent, 17 Conn. 575. § 383.] AS TO COVENANTS FOR TITLE. [CHAP. XV. and will open the written contract to let in an equity arising" from facts perfectly distinct from the sense and construction of the instrument itself." 1 And of course this familiar branch of jurisdiction applies to covenants for title. The real difficulty is as to the sufficiency of proof. When the true intention of the parties, however defectively expressed, suffi- ciently appears on the face of the instrument, of course it needs no reformation — a court will construe it according to the inten- tion thus appearing. When the true intention does not so appear, and the parol evidence is in aid of other evidence, there may be 1 Per Kent, Ch., in Gillespie v. Moon, 2 Johns. Ch. (N. Y. ) 585. See also su- pra, § 88. For the rule of the common law, both before and since the passage of the statute of frauds (not always free from fluctuation), the student may refer to the notes to the leading case of Doe d. Hiscocks v. Hiscocks, Tudor's Lead. Cas. on Real Property (3d ed.), 918, and Wigrain on Wills ; and for the rule in courts of equity, to the notes to Woolam v. Hearn, 2 Lead. Cas. in Eq. (4th Am. ed.) *4S4. An injunction will sometimes be used in aid of this form of relief. In Bowen v. Thrall, 2 Wins. (Verm.) 382, land had been agreed to be conveyed by a warranty deed containing covenants for seisin and against incumbrances, but the deed as drawn, although it contained a covenant of general warranty, yet purported to convey only the vendor's right, title, and interest, which is held in many cases to qualify and restrain a general covenant. (See Miles v. Catlin, 22 Verm. 104, and supra, §§ 250, 298.) The premises turned out to be incumbered by a mortgage previously given by the grantor, which it was proved the latter assumed to pay, but under which the mortgagee afterwards took pos- session of the premises. The court con- sidered that if the deed had been drawn according to the contract between the par- ties, the vendor would have been obliged to pay the mortgage. As it was, the legal effect of the deed was to throw the burden of this debt upon the purchaser (see Mills v. Catlin, 22 Verm. 104, and supra, § 298, tor cases where a covenant of general war- ranty is held to be restrained by a limited estate conveyed). At law, therefore, the latter was without adequate remedy, as the deed must there be enforced as it was drawn, and as it contained no covenant against incumbrances, the purchaser had no defence at law to the note. A court of equity would, however, protect the rights of the parties under the contract, and enforce it in the same manner and to the same extent as if the deed had been drawn as it should have been, and whatever might be the rule at law, a court of equity would not permit a grantor to recover the entire purchase money, and leave unpaid incum- brances upon the land which he was under obligations to discharge. The purchaser had a right to retain so much of the pur- chase money as was sufficient to secure him against the incumbrances, particu- larly where the grantor was insolvent, and no adequate remedy could be had on his covenants. The suit at law was therefore enjoined until the incumbrances should be removed. And where, through mistake, the cove- nant is performed to the wrong party, equity will decree restitution. In Rose. v. Sehaffner, 50 Io. 483, R. had purchased land from H. with covenants, and after- wards mortgaged it to the plaintiff". On failure of title, and in ignorance of the mortgage, H. paid to D., a subsequent purchaser of the property, the amount of his liability on the covenants, whereupon the court required D. to repay so much of this amount as was necessary to protect H. from the plaintiff's claim on the cove- nants. 651 § 384.] THE JURISDICTION OF EQUITY [CHAP. XV. but little difficulty as to the jurisdiction ; but when that which was written is sought to be modified and reformed merely by that which was said, it is easy to see that unless the proof be very clear, fraud would be more promoted than prevented by the so called reformation of contracts. § 384. An examination of the cases will show that although in the reports of some of them the question of evidence may not per- haps have been set forth with sufficient prominence, yet that this principle has been steadily kept in view. In the early case of Coldcot v. Hill, 1 the complainant, having purchased church lands under the title of Cromwell, sold them to the defendant's testator with general covenants for the title. Upon the Restoration, the estate was avoided, and the defend- ant, in an action on the covenants, obtained judgment for his purchase money, upon which the vendor filed a bill to enjoin its collection, " which did suggest a surprise upon the plaintiff in getting him into that covenant, and that it was declared by Dr. Coldcot, when he sealed, and the defendant's testator, that it was intended Dr. Coldcot should not undertake any further than against himself ; " and there being proof of this, 2 the pur- chaser was decreed to enter satisfaction on the judgment and pay costs. 3 1 1 Cases in Chancery, 15; Freem. 173; a book of doubtful authority" (Wallace's 1 Sid. 328, nom. Coldcot v. Hide. Reporters, 297), but the report in Freeman 2 That is to say, "Upon the hearing, (himself an unreliable reporter) is sub- it was proved that the matter of the cove- stantially the same : " Dr. Collicot, hav- nant upon which the judgment was had ing purchased the fee of church lands, sold against the plaintiff was controverted in them with a general covenant; the church the paper draft, and put out by the is restored, the lands evicted, the vendee plaintiff's counsel, and in again by the brings covenant and recovers the value of defendant's counsel, with the alteration the lands; the plaintiff in his bill suggests only that whereas the covenant was that that the said covenant was gotten by sur- the plaintiff was lawfully seised, etc., the prise, and that it was igreed only that plaintiff's counsel put out 'lawfully,' he should covenant against his own act, which signified nothing; for to covenant which appearing upon proof, the court one is seised, is intended lawfully. But ordered the defendant to acknowledge some proof being that it was declared upon satisfaction of the judgment. The like sealing that the plaintiff should undertake between Ferrar v. Ferrar, about six months for his own act only, it was decreed that before." The entry in the registrar's book the defendant should acknowledge satis- is, "The court, upon consideration that faction on the judgment and pay costs." the covenant for enjoyment was intended The report also says that a like case to only against acts done by the plaintiff or this between Fairer and Farrer was heard his trustees, and that the agreement to and decreed after the same manner, about that effect was fully proved, declared the six months before. plaintiff ought to be relieved against the 3 " Cases in Chancery " is " notoriously covenants inserted in the deeds and the 652 § 384.] AS TO COVENANTS FOR TITLE. [CHAP. XV. In another case, eleven years after, 1 a bill was filed to enjoin a judgment obtained upon a general covenant that the grantor had lawful power to convey, " which being contrary to the true intent and meaning of the said parties, and it appearing so in the convey- ance, where the rest of the covenants are restrained to the acts done by the plaintiff and all claiming under him, and that the covenants ought to be so restrained, especially since the purchaser knew the plaintiff's title, and that he sold him only such estate which he had in the premises, 2 . . . the court decreed that the general words in this covenant ought not to oblige the plaintiff ; being contradicted by all the subsequent covenants, and the plain- tiff selling only such an estate which he had, therefore it was ordered that the defendant acknowledge satisfaction on the judg- ment he had obtained, and a perpetual injunction to stay all pro- ceedings at law." 3 And upon the authority of these and other analogous cases, Sugden has said broadly, " If general covenants judgment obtained thereon, and did there- fore decree the defendant to acknowledge satisfaction on the said judgment, and to release all errors, and that no more actions should be brought on the said covenant, and for that end awarded an injunction against the defendants. The plaintiff to have his costs." In the earlier editions of his treatise, Sugden said, " But whatever difficulty there may be of admitting parol evidence singly, yet it is always admitted when corroborated by other evidence. This doc- trine was carried a great way in the case of Coldcot r. Hide." 1 Sugd. on Vend. (10th ed.) 262. In the 14th edition this last sentence is omitted. For two cases in which Sugden himself, while Chancel- lor of Ireland, exercised this jurisdiction, see Alexander v. Crosbie, LI. & Goold, 145, and Mortimer v. Shortall, 2 Dru. & War. 363. 1 Fielder v. Studley, Rep. temp. Finch, 90. 2 "And never took any advantage or questioned the plaintiff in any of the cove- nants in the deed, but continued in the possession and received the profits thereof for ten years and upwards, and after the Restoration he or his son took a new lease of the Dean and Chapter of Sarum for three lives, and had a considerable abate- ment of the fine, in respect to the purchase made by the plaintiff." 3 "This last case," said Sugden, "was quoted in a case in the Common Pleas before Lord Eldon (Browning v. Wright, 2 Bos. & Pull. 26), who thought the de- cision must have been made on the ground of the intent of the parties appearing on the instrument, since that intent, and the consequent legal effect of the instrument, could only be collected from the instru- ment itself, and not from anything dehors. In a still latter case in the same court (Hesse v. Stevenson, 3 Bos. & Pull. 575), Lord Alvanley thought, under the circum- stances of the case, that the application was made to the Court of Chancery to correct the mistake, in the same manner as applications are made to that court to correct marriage articles, where clauses are inserted contrary to the intent of the par- ties. It seems clear, however, that the re- lief in this case was founded on parol evidence that the vendor sold only such estate as he had, corroborated as it was by the form of the deed and the subject of the contract. Such evidence was received in the prior case of Coldcot v. Hide, and is still clearly admissible." 1 Sugd. on Vend. (10th ed.) 262, but in the last edition (the 14th) this passage is omitted. 653 § 385.] • THE JURISDICTION OF EQUITY [CHAP. XV. for title are entered into contrary to the intention of the parties, equity will, on sufficient proof, correct the mistake in the same manner as errors are corrected in marriage articles, and will relieve against any proceedings at law upon the covenants as they originally stood." * § 385. And upon this side of the Atlantic the law is equally well settled. In a very early case in Kentucky, 2 a deed which contained a limited covenant of warranty was reformed upon evidence that the grantee, at the time of its execution, objected to a covenant of such narrow extent, but yielded, upon the assurance of the draftsman and others present that the real meaning of the covenant was that if the land were lost, from whatever cause, the purchase money with interest would be refunded. 3 So where the complainant alleged that when he sold to the defendant it was made known to the latter that a railroad com- pany had laid its track across the land, and that damages had been paid therefor, and that certain other damages for another part of the land were to be paid to the defendant, in consideration whereof the latter was to make no claim on the covenants for title in the deed, yet that notwithstanding his agreement the defendant had sued the complainant at law upon the covenants, the court, although the answer denied the facts, considered them proved by the testimony in the case, and affirmed the decree below restraining the proceedings at law. 4 1 Sugd. on Vend. (14th ed. ) 610. This The defence was that the premises in suit is also said in the previous editions. And had been included in the defendant's deed see infra, § 387. by mistake, but it was held that it could 2 Coger v. McGee, 2 Bibb, 321. not be reformed unless the other parties to 3 The opinion in this case fully recog- it were brought in. nizes the danger of giving "too easy an 4 Taylor v. Gilman, 25 Verm. 413. ear to the effect of parol evidence in contra- " There can be no doubt," said the court, dieting or varying the terms of a written " that on trial of that action of covenant contract," but the evidence, as it appears at law, the right of the railroad upon these in the opinion, was quite sufficient to over- premises would be considered a breach of throw the positive denials of the answer. the covenants in the deed. ... To this To authorize reformation in any case, general rule [the inadmissibility of parol all the parties to the instrument must be evidence to vary the obligation created by represented before the court. In Hicks v. the covenants], however, in equity, excep- Sheppard, 4 Lans. (N. Y.) 335, the de- tions have been introduced in cases of mis- fendant in ejectment had conveyed prem- take, accident, and fraud. ... It would ises including those in suit, with covenants seem from the testimony that there is no of warranty, and his grantees had con- ground for relief in consequence of any veyed to the plaintiff with like covenants, accident or mistake, for the deed and its 654 § 385.] AS TO COVENANTS FOR TITLE. [CHAP. XV. So in a case in Iowa, 1 the complainant conveyed land to the defendant by a deed containing printed general covenants for title, after which were written the qualifying words " claiming through or under us," and it turned out that there was a paramount mort- gage created by a former owner, which was unknown to either vendor or purchaser, 2 which the defendants had been compelled to pay, and had then sued on the covenants, and upon a bill filed to reform the deed and restrain the proceedings at law, the court, having no doubt as to the sufficiency of the proof, granted the relief. 3 So in a case in Minnesota, the defendant had contracted to con- vey to the plaintiff one hundred and sixty acres, part of it at once, and a certain forty-acre tract as soon as he got title from a rail- road company. By a mistake, the deed and the purchase-money mortgage covered the whole hundred and sixty acres, but the title to the forty-acre tract never really passed, as the company, though they gave a deed for it to the defendant, had no title to convey. The defendant having begun a foreclosure suit, the plaintiff sued on the covenants for seisin and of right to convey, claiming a breach as to the forty acres, and praying also for an injunction against the foreclosure suit, and that his damages by breach of covenant be applied in satisfaction of his notes secured by the mortgage. The defendant set up the mistake, which, though denied by the plaintiff, was established, and the court reformed covenants were drawn as they were, under- that matter. Regarding these facts there- standingly. . . . The only ground, there- fore as sufficiently proved, and the bill as fore, upon which this testimony can be sufficiently setting up the fraud and asking received, to control the legal effect and for relief on that ground, we think the operation of these covenants, is the fraud case is brought within the general rule of the party in attempting to enforce them upon which relief is granted." in violation of his agreement. The evi- x Crum v. Loud, 23 Io. 219. dence is regarded as sufficiently certain 2 With the registry acts which are in and clear in the proof of that contract, force in all our States, this case is but that the damages to be paid by the rail- another instance of the carelessness of con- road for their right in the premises were veyancing which is sometimes found, to be divided between these parties in ' The ground of the decision was the specific proportions, and that no claim clearly proved intention of the parties to was to be made on the grantor, on his make and receive a conveyance by quit- covenant in this deed, for any matter claim. The plaintiff had endeavored to arising out of that negotiation ; and evi- obtain a printed form appropriate to the dently it was in confident reliance upon purpose, and being unable to do so, under- this understanding, that the grantor ne- took to secure the same end by adding the glected so to qualify his covenant that no words found in the deed at the close of the right of action should arise thereon for covenants in a deed of general warranty. 655 § 387.] THE JURISDICTION OF EQUITY [CHAP. XV. the deed and mortgage by striking out the forty acres, at the same time deducting their value, with interest, from the amount of the notes. 1 § 386. The same rules govern the power of a court to reform a deed by inserting covenants. Thus in a recent case in New York, there had been a verbal contract to convey with a good title and covenants. A deed without covenants was tendered and finally accepted, after a deed with covenants according to the contract had been demanded and refused. After the plain- tiff had taken possession, an incumbrance unknown to both par- ties was discovered, and the plaintiff sought a reformation of the deed by the insertion of covenants of warranty and against incumbrances. It was held, reversing the decision at special term, that in the absence of fraud there was no legal liability on the grantor, and that equity could not relieve. 2 § 387. The difference between the doctrines enforced in the respective courts of law and equity as to this subject is shown in some rather recent American cases. Thus where the gran- tors covenanted that their heirs, executors, and administrators (not themselves) would warrant and defend the title, and the purchaser, being evicted, sued at law, it was held that the de- fendants were not liable. 3 The covenant was not that the gran- tors would defend the title, but that it would be defended by their heirs, executors, or administrators. 4 It might, however, 1 Dorr v. Steichen, 18 Minn. 26. In at the time of its delivery that it did con- Allen v. Yeater, 17 W. Va. 128, the court tain them, but through a mistake of the ordered a " storehouse and lot " to be ex- scrivener they had been omitted, the court cepted from a warranty deed, on proof of might insert them ; but no such case is mistake. made out here." 2 Whittemore v. Farrington, 12 Hun, 8 Poifner v. McConnel, 14 111. 168. (X. Y. ) 349 ; s. C. on appeal, 76 N. Y. 4 "It does not give," the opinion went 452. "The theory of the judgment [be- on to say, "a right of action against the low]," said the court, " is that the accept- grantors on the loss of the title, but it ance of the quitclaim deed in performance provides a remedy against their legal and of the contract may be set aside on the personal representatives. It exempts the ground of mistake, and the contract treated grantors from personal liability, but it as executory, and a new performance in a binds their descendants in respect of the different manner be decreed. The theory estate that may be cast upon them. It is is ingenious, but is not founded on any not like a covenant that a person who is legal precedent or principle." After stat- not a party to the deed shall warrant and ing the necessity of proving fraud or mis- defend the title. In such a case, upon the take, it continued, "If the grantor and eviction and the failure of such third per- grantee had both intended that this deed son to comply with the terms of the should contain covenants, and supposed covenant, an action might be maintained 656 § 387.] AS TO COVENANTS FOR TITLE. [CHAP. XV. be that it was the real intention of the parties that the grantors should warrant and defend the title, but it was not competent for a court of law to hear proof of the intention and relieve the mistake. If there were such a mistake, the plaintiff must apply to a court of equity and have the deed reformed, and when that was done, he might bring an action against the grantor and assign breaches on the covenant. 1 So in a case in Massachusetts, where the defendants agreed to convey a tract of land to the plaintiff with a covenant that they would warrant that the same contained seven acres, and a deed was subsequently drawn with such a covenant, which, however, was afterwards fraudulently erased by the defendants without the knowledge of the plaintiff, it was held that the latter, who filed a bill to rescind the contract, was entitled to relief. 2 And in a later case, where it appeared that by a mistake of the scrivener against the grantor. It would be sus- tained on the familiar principle that what a party undertakes shall be done by another, he must perform on the default of that other. But this case is essentially different. The covenant is that the act shall be performed by parties who can have no legal existence during the life of the grantors ; while they survive, they can have neither heirs nor executors or administrators. The covenant postpones the remedy for a failure of the title until the decease of the grantors, or one of them. Until such an event transpires, there is no party in esse who can be called on to avouch the title. This is the only con- struction that can be put on the covenant. It is, indeed, an unusual covenant, but that does not help the plaintiff. Parties are allowed to make their own contracts." 1 In Stanley v. Goodrich, 18 Wis. 505, however, where the facts were similar to those in Rufner v. McConnel, supra, this distinction does not seem to have been very carefully observed, although the case can perhaps be supported upon other grounds. Upon the petition of a cove- nantor to be admitted as a defendant in an action to foreclose a mortgage executed by him prior to his conveyance to the de- fendant, with whom he had covenanted not for himself, but for his heirs, executors, and administrators to warrant and defend 42 the land, it was urged that as the above covenant did not bind him personally, he was not interested in the result of the ac- tion, but the court, in giving judgment for the petitioner, said : "As to the omis- sion of the word 'himself' in the cove- nants of the deed, we do not dwell much upon that. There can be no doubt of the intention of the parties, and if the cove- nants are not technically valid at law, a court of equity, in conformity to the in- tention of the covenantor, will soon make them so." 2 Metcalf v. Putnam, 9 Allen, 98. " Up- on elementary principles," said Bigelow, C. J., "the plaintiff is entitled to have his deed reformed so that it may truly set forth the whole contract, and that the plaintiff may thus obtain the means of re- dressing the wrong which the fraudulent acts of the defendants have occasioned. That such redress could not be had at law is too clear to admit of debate. The plain- tiff could not, in an action at law for the breach of the alleged agreement, introduce parol evidence to prove it. He would be shut out of such proof by the rule that oral evidence is inadmissible to add to or vary a written contract. It would there be said that the oral contract was merged in the deed. But equity furnishes relief in such rases, which the law is inadequate to afford." 657 § 388.] THE JUKISDICTION OP EQUITY, ETC. [CHAP. XV. an easement was omitted to be excepted from the general words of the covenant of warranty, it was obviously held that the covenantee was entitled to reformation of the deed and to an injunction meanwhile to restrain the covenantor from suing at law. 1 § 888. And even in those States in which codification has either swept away or at least modified the distinction between law and equity, and in which, therefore, the equitable doctrine would be enforced whenever otherwise properly applicable, there may arise cases in which the machinery substituted by codification may be inadequate to proper relief. Thus in a case in New York, the complaint alleged that the defendant purchased from the plaintiff a farm, subject to a mort- gage which the former agreed to pay, but by mistake the plaintiff inserted in the deed a covenant that the premises were free from all incumbrance. The mortgage being subsequently foreclosed, the defendant sued on this covenant, when the plaintiff commenced this suit and prayed that the deed be reformed and the defendant restrained from proceeding in his action on the covenant. To this the defendant demurred, upon the ground that while the former action was pending these facts could not be made the subject of a separate suit, but the court held that, as the plaintiff could not have obtained relief in the action on the covenant, he w T as entitled to a decree, and the judgment below dismissing the complaint was reversed. 2 1 "Wilcox v. Lucas, 121 Mass. 21. plaintiff's contention was, he thought, cog- 2 Haire v. Baker, 1 Selden, (N. Y) 357. nizable as an equitable defence in the ac- Foot, J., dissented on the ground that the tion on the covenant. 658 INDEX. INDEX. A. Section ABSENCE OF TITLE, of itself no defence to the payment of securities given for the pur- chase money 333 ABSTRACTS OF TITLE, excepted incumbrances should be noticed in 88 n. ACCEPTANCE, of grant, purchaser not estopped by 268 unless possessed of paramount title at time of conveyance . . 268 ACCIDENT, when ground for reforming covenants in equity 383 ACCORD AND SATISFACTION, when a proper plea to action on covenants 314 n. ACRES, enumeration of, does not necessarily imply covenant for quantity . 297 ACTION, avoidance of circuity of, alleged ground of American doctrine of es- toppel 250 cases where this reason could not apply 251 circuity of, avoided by allowing purchaser to detain purchase money 324 of covenant, transitory, when founded on privity of contract . . . 302 local, when founded on privity of estate 302 modern changes of the rule 302 parties to, on joint and several covenants 304, 315 of deceit, when it lies 322 n. ACTS, what required under covenant for further assurance 100-108 "ACTS AND MEANS," meaning of, in covenant for quiet enjoyment 93 ACTUAL EVICTION. (See Eviction.) ACTUAL SEISIN, in some States sufficient to support covenant for seisin .... 42-55 origin of the doctrine 47 662 INDEX. ACTUAL SEISIN — continued. . Section dissent from it 44 (See Seisin, Covenant for.) ADMINISTRATION OF ASSETS, specific performance of covenants, when enforced in 364 {See Assets.) ADMINISTRATORS. (See Fiduciary Vendors.) ADVERSE ENTRY, lawfully made under paramount title, an eviction 133 ADVERSE POSSESSION, connection of doctrine with that of champerty acts 47, 48 does not invalidate conveyance not made for purpose of maintenance 48 transfer of real estate pending, an offence in some States .... 49 recentness of, immaterial as to champerty 53 effect of, where champerty acts not in force, as to breach of cove- nant for seisin 54 ADVERSE SUIT, notice of, to covenantor 117-125 (See Notice.) AFTER-ACQUIRED TITLE. (See Estoppel.) AGENT, purchaser's right to covenants by 35 power to sell implies power to covenant 35 covenant by, when personally binding 35 AGREEMENT, to convey by reasonable assurance, carries right to usual covenants 108 for sale of real estate, measure of damages on 157 n. in deed, how covenauts limited by 295 (See Contract.) ANCESTOR. (See Vendor; Warranty.) APPORTIONMENT, of damages, upon partial breach of covenant 186-187 ARREARS OF QUIT-RENT, whether breach of covenant for quiet enjoyment 94 ARTICLES. (See Contract.) ASSETS, heir not bound by ancestor's warranty, without 8, 238, 309 administration of, specific performance of covenant in 364 marshalling, how covenants for title affected by doctrine of . . 301 n. doctrine of, in Massachusetts, depends on presence of covenant of warranty 301 n. {See Covenantor; Equity; Purchaser.) ASSIGNEE, of bankrupt or insolvent, usual covenant by 33 of land, and covenants running therewith, not affected by equities of which he has no notice 222 has no right to sue on covenants broken as soon as made .... 225 except in assignor's name 226 difficulties involved thereby 226 n. , 227 INDEX. 663 ASSIGNEE — continued. Section rights of, effect of release of covenants upon 220, 221, 228 effect of want of estate upon 232 modern doctrine of effect of transfer of possession 233 liability of, only on covenants in conveyance of leasehold .... 303 rights of, could not take advantage of warranty implied from dedi . . . 318 aliter of that from demisi and concessi 318 could not take advantage of express warranty unless named . . 318 aliter as to covenants 318 ASSIGNMENT, of leasehold interest, form of covenants in 20 n. no covenants implied in 272 ASSUMPSIT, does not lie to recover consideration, for failure of title, after con- tract executed 326, 333 n. ASSURANCE. (See Further Assurance.) ATTORNEY, liability of, for improper or insufficient covenants 20 n. B. BANKRUPT, usually enters into covenants for title as he would if solvent . . .Sin. cannot be compelled to do this 34 n. BANKRUPTCY, of vendor, does not affect estoppel created by covenants 251 when a discharge of liability on covenants 303 BENEFIT, of covenants. (See Covenants for Title.) BOND, consideration of, when can be inquired into 332 n. BREACH, of covenant for seisin, what constitutes 58 assignment of 61 of right to convey, what constitutes 68 against incumbrances, what constitutes 70 assignment of 86 for further assurance, what constitutes 99 assignment of 109 for quiet enjoyment and of warranty, what constitutes . 127-154 assignment of 155 of covenants, action on, when brought by personal representatives of covenantee . . . 316 when by heir 316 BUILDING COVENANTS, effect of, on measure of damages 170 664 INDEX. BURDEN, Section of covenants. (See Covenants for Title.) BURDEN OF PROOF, upon whom, in action on covenant for seisin 65 against incumbrances 87 plaintiff must show what incumbrance was really worth . 192 or only nominal damages can be recovered 192 for quiet enjoyment and of warranty 155 is on plaintiff 155 but may be shifted 155 is on purchaser who surrenders to paramount title . . . 136 effect of notice to covenantor of suit on adverse claim . . 117, 121, 122 "BY, FROM, OR UNDER," construction of the words 92 c. CAVEAT EMPTOR, application of rule to measure of damages for breach of covenant 168-169 rule of, 319 n. applies to judicial sales 338 n. but not to partition or exchange 338 n. (See Purchaser.) CESTUI QUE TRUST, covenants by, in England 34 CHAMPERTY, doctrine of 47 how far connected with that of actual seisin 47 how affecting covenants for title 51 prohibition of, part of common law in some States, not found in others 49 CHATTELS, implied warranty of title in sale of 61 when warranty after sale is valid 274 n. when breach of warranty is defence to payment 332 n., 379 specific performance when decreed 358 n. CHOSES IN ACTION, common law rule as to non-assignability of 202 assignment enforced in equity 226 CIRCUITY OF ACTION, American doctrine of estoppel said to rest on ground of preventing 250 cases where this reason cannot apply 251 avoidance of, basis of purchaser's right to detain purchase money, in analogy to doctrine of set-off 324 COLLATERAL WARRANTY. (See Warranty.) COMMENDATION, of estate by vendor, how far allowable 322 n. INDEX. 665 COMMON RECOVERY, Section theory of the validity of, resulted from its origin in the law of warranty 9 not first applied to bar an estate tail in Taltarum's case . . . . 9 n. right to suffer, inseparably incident to an estate tail 9 n. effect of, at common law 243, 254 CONCEALMENT, when fraudulent 322 CONDITION OF RE-ENTRY, implied from exchange 271, 277 partition by writ, but only in favor of coparceners 277 Stat. 31 Hen. VIII. c. 1, did not alter this 277 " CONNECTICUT TITLES," decisions as to, in New York and Pennsylvania 51 n. CONSIDERATION, for purchase money, what is 327 distinction between total and partial failure of 331 CONSIDERATION MONEY, is measure of damages on covenants for seisin and of right to convey 158, 172 expressed in deed, not conclusive on either party 173 may be explained by parol 173, 174 but not against assignee without notice 222 want of, cannot be shown, to defeat conveyance 173 where none expressed, what is measure of damages 175 interest on, when recoverable 196 inquiry into not precluded by covenants in deed 327 n. (See Damages, Measure of.) right of purchaser to detain. (See Purchase Money.) CONSTRUCTIVE EVICTION. (See EviCTion.) CONTINGENT LIABILITY, on covenants for title, executor not bound to retain assets to meet 312 n. CONTRACT. to give good and sufficient deed, compliance with 32 while executory, what are purchaser's rights 32 subject-matter of, may determine what constitutes incumbrance . 85 of sale, damages for breach of 157 n. rescission of, right of purchaser to, on breach of covenant for seisin 178-185 under seal, performance may be dispensed with by parol in America 221 when rescinded by fraud of vendor 322 in equity for failure of title 379 reformed in equity 383 CONTRIBUTION, when not decreed in equity under voluntary deed 367 CONVEYANCE. (See Deed.) CONVEYANCING ACTS. (See Statutes.) 666 INDEX. COPARCENERS, Section •warranty and condition of re-entry implied in partition by writ between 271, 277 cditt r in partition by deed 277 must join in actions on covenants 315 COSTS, of litigating title, how far included in damages on covenants . . 197-201 taxed costs of suit 198-199 counsel fees and expenses 200 recovery of, when notice to covenantor necessary 200 limited to costs of suit in which paramount title was established 201 COUNSEL, opinion of, on necessity of further assurance, usual in England . . 99 fees of, in litigating title, when recoverable as damages .... 200 COVENANT TO STAND SEISED TO USES, a vested estate necessary to, at law 254 n. at present day, enforceable in equity as to after-acquired estates 254 n. COVENANTEE. (See Equity; Purchaser.) COVENANTOR, not liable for incumbrance excepted from deed 88 acts of, when breach of covenants for quiet enjoyment and of warranty 128 deed or will by, no breach of covenants in prior conveyance . . 128 n. liability of, on covenant against acts of a particular person . . . 128 notice to, of action on paramount title. (See Notice.) must be allowed the benefit of all defences his covenantee might have made 120 n. (See Vendor.) COVENANTS FOR TITLE, law of, collateral to law of real estate 57 object they were intended to fulfil 208 uncertain when first used 13 modern, date from Restoration 13 original number of 13 poverty of English cases on 16 in England, never used for purpose of estoppel 16 importance of, in America 17 in what modes of assurance chiefly contained 20 in England, usual covenants in sales in fee 20 form of 20 the same sometimes used in settlements 20 used in mortgages, but unlimited 20 in transfer of leaseholds 20 form of 20 n. in common leases 20 form of 20 n. effect of conveyancing acts upon 20 in America, difficult to determine what are usual 28 " full covenants," what are 21 form of 21 n. in New England 21 n. INDEX. 667 COVENANTS FOR TITLE — continued. Section additional covenant of non-claim sometimes used 22 form of 22 n. form of covenant for quiet enjoyment in ground-rent deeds 22 n. statutory forms 23 extent of, relatively to classes of grantors 24 1. those who convey in their own right 25 married women 25 mortgagors 26 vendors not claiming by purchase 27 theory of English conveyancers as to 27 what covenants expected in Pennsylvania 29 in other States 30 what are usual covenants, often question of fact .... 31 right of purchaser to title clear of defects and incumbrances 32 waiver of right must be clearly expressed in contract . . 32 2. fiduciary vendors 33 cestui que trust 34 agents 35 3. ministerial vendors 37 when limited to estate conveyed 104 damages for breach of. (See Damages, Measure of.) extent to which they run with the land 202-236 in America, two classes of covenants as to this 202 chosen in action not assignable at common law 203 common law warranty ran with the land 203 and descended to the heir 204 aliter after introduction of deeds, unless expressly stated . . . 203 until breach, covenants for title always run with the land . . . 203, 204 origin of the rule not absolutely certain 203 after breach, they become choses in action, and do not run with the land 204 American doctrine of covenants in prasenti, broken as soon as made 205 covenant for seisin, by weight of American authority, does not run with land . . 205 origin of the doctrine 205 cases on which it is supposed to rest do not support it . . . 205, 209 in England, all covenants run with the land 206 but doctrine of " continuing breach," latterly not approved there .207 English statutory implied covenants run with the land . . . 210 English rule enacted in some States, followed in others . . . 211 covenant against incumbrances 212 does not run with the land in most States 212 aliter in some States 212 or when so joined with another covenant as to be prospective . 212 covenants for quiet enjoyment and of warranty, run with the land 213 pass by voluntary or involuntary alienation 213 theory of English conveyancers as to this 213 668 INDEX. COVENANTS FOR TITLE — continued. Section a covenantee may sue all previous covenantors 214 but can have but one satisfaction 214 divisibility of covenants as to benefit 214 Preston's and Sugden's opinions as to this 214 n. intermediate covenantee, who has parted with his interest, cannot sue until recovery had from him 215 rights of mortgagor in the covenants 216 none formerly in England 216 so in Kentucky 216 embarrassing results of the rule 217 modern doctrine, legal title in mortgagor for purposes of the covenants 218 rule how enforced in equity 219 release of covenants, after conveyance, void against purchaser . . 220 release binding, while covenantee holds the title 221 in America, parol release when valid 221 assignee of land and covenants running therewith not affected by equities of which he has no notice 222 merger of covenants 223 in some States release must be recorded 223 effect of holding covenants broken as soon as made, on rights of one who has parted with his interest 225 right of assignee to sue in name of assignor 226 modern rule as to choses in action applies to covenants . . . 226 may affect American rule as to covenants in prcesenti .... 226 except where real party in interest must sue .... 226 n. hence difficulty as to pleadings on covenant against incumbrances 227 effect of release of covenant for seisin on subsequent purchaser's right of suit 228 effect of presumption from lapse of time on covenant broken as soon as made 229 action on covenant for further assurance, demand necessary . . . 230 covenant of non-claim, in Maine, does not run with the land 231 doctrine that want of estate prevented covenant from passing . . 232 not followed in later times 233 modern doctrine that transfer of possession under color of title carries right to covenants 233 even if possession tortious or land vacant 233 operation of, by way of estoppel or rebutter. (See Estoppel.) how limited or restrained by other covenants, — 1. when preceding restrictive words extend to all the covenants . 289 exceptions 290 2. when subsequent limited covenant will not restrain preceding general one 291 3. when preceding general covenant will not enlarge subsequent limited one 292 4. when restrictive words do not operate, the covenants being of different natures 293 absence of American authority on the subject 294 INDEX. 669 COVENANTS FOR TITLE — continued. Section how limited by express agreement in deed 295 reformation of, in equity, for fraud and mistake 296, 383 contrary to intention, judgment on, enjoined 296 (See Equity.) apply to premises, not to statement of quantity of land conveyed . 297 general, restricted by limited estate conveyed 104, 298 but only when such intention appears in the deed 299 liability on, when affected by discharge in bankruptcy 303 when joint, or joint and several 304, 315 create a specialty debt 309, 364 how affected by statute of limitations 229, 314 when heir entitled to take advantage of 316 when personal representatives 316 when reformed in equity 383 when implied. (See Implied Covenants.) purchaser's right to detain purchase money for breach of. (See Purchase Money.) jurisdiction of equity over. (See Equity; Injunction; Refor- mation; Specific Performance.) (See also Purchaser; Vendor; and the different covenants.) CURTESY, warranty of tenant by, originally descended upon his heir ... 5, 238 effect of statute of Gloucester upon this 5, 238 rule under Kentucky statute 5n., 238 n. D. DAM, when breach of covenant against incumbrances 83 being compelled to lower, when breach of covenant of warranty . . 153 DAMAGES, none recoverable in real actions at common law 12 allowed by statute, in action of warranty 12 when awarded in equity 355 DAMAGES, MEASURE OF, on feudal warranty 12, 157 on contract for sale 154 n. on admeasurement of dower 167 n. on covenants for seisin and of right to convey 158, 161 measured by consideration money 158 increased value of land not recoverable 158 nor improvements 158 vendor's fraud cannot increase damages 159 rule taken from analogy to common law warranty 172 neither vendor nor purchaser concluded by consideration clause 173 but cannot show want of consideration, to defeat con- veyance 173 670 INDEX. DAMAGES, MEASURE OF — continued. Section damages may be increased or diminished by proof of con- sideration 174 or that certain property was not intended to pass . . 174 evidence of value of land where no consideration is named 175 rule where consideration has not moved from grantee, or was not all received by grantor 175 on technical breach of covenant for seisin 176 effect of English doctrine as to this covenant 177 if possession has ripened into valid title, nominal damages only recoverable 178 while possession is undisturbed, such recovery a bar to a subsequent action 178 difference as to this from covenant for quiet enjoyment . 178 right of purchaser to consider contract rescinded 178-185 in some States, after-acquired title, inuring by estoppel, makes damages nominal 179 and equity will compel purchaser to receive this title and prevent recovery of damages 180 right not affected by power to purchase or remove defect or incumbrance 181 option of recovering damages or accepting title should be pur- chaser's, not vendor's 182, 258, 359 after-acquired title should not be fastened on purchaser nolens volens 182 and so held in some States 182, 258 when recovery of damages revests the title in covenantor . . . 184, 258 reconveyance by purchaser, when necessary 185 when execution stayed until 185 upon partial breach, purchaser recovers pro tanto 186 either party may give evidence of relative value of part lost . . 187 but contract not thereby to be rescinded 187 on covenant against incumbrances 188-193 when no actual injury inflicted, nominal damages recoverable 188 reason for this rule purely technical 189 uselessness of the covenant as a covenant of indemnity . . . 189 where incumbrance cannot be removed, estimated by injury sustained 190 where incumbrance is an easement 191 evidence of special use of property to purchaser inadmissible 191 n. where incumbrance is a term of years, or life estate .... 191 where outstanding title or incumbrance has been obtained or removed, amount fairly paid recoverable 192 burden of proof on plaintiff 192 but cannot exceed consideration money and interest in some States 193 aliler in others 193 on covenant for further assurance 194, 195 redress generally sought in equity 194, 362 mere refusal to execute, entitles to nominal damages only . . 195 unless the ultimate damage be sustained 195 INDEX. 671 DAMAGES, MEASURE OF — continued. Section on covenants for quiet enjoyment and warranty 161-171 in England 162 in America 163-171 in some States, value of land at time of eviction . . . . 163 weight of authority is contra 164 reasons for the rule 165-166 rule modified by circumstances or by equity 167 rule of caveat emptor applies 168 purchaser's motive cannot increase damages 168 exceptions to rule 169-171 1. where caveat emptor was not meant to apply . . . 169 leases 169 value of term lost recoverable 169 in Pennsylvania, nominal damages only .... 169 2. where improvement forms part of consideration . . 170 where ground-rent reserved forms consideration . 170, 171 interest on consideration money, when allowed .... 196 limited to amount of mesne profits 196 costs of litigating title 197-201 taxed costs of suit 197 in America costs between party and party 198 counsel fees and expenses 200 recovery of, when notice to covenantor necessary .... 200 limited to costs of suit in which paramount title was estab- lished 201 DEBT, meaning of word, in statute of fraudulent devises 309 specialty, created by covenants for title 309 distinction between bond debts and covenants 309 DEBTS, liability of land for payment of 309 DECEDENT, covenants of, at common law, did not bind devisee 311 debts of, statutory lien of 310 {See Devisee; Heir.) DECEIT, action of, when it lies 322 executed contract when rescinded by reason of ....... 322 DECLARATION. (See Fraudulent Representation.) recovery on counts well laid, though others defective 63 n. in action on covenant for seisin and of right to convey, need only negative words of covenant 61 against incumbrances must set forth incumbrance 86 but only substantially 86 form of 86 n. for further assurance, particularly required 109 for quiet enjoyment and of warranty, must aver disturbance under lawful title 155 existing before and at time of conveyance 155 but need not set it forth particularly 155 form of .... i 155 n. 672 INDEX. DEBT, Section warranty implied from use of, at common law 3, 270 statute de bigamis declaratory of this 4, 271 after statutes de bigamis and quia emptores, only for life of feoffor 271 assignee could not take advantage of 318 DE BONIS, statute, effect of upon warranty 7 DEED, usual covenants in 20, 21 form of 20, 21 n. statutory forms of, in England 20 in America 21 by fiduciary, covenants in 33 agent, covenants in 35 ministerial vendor, contains no covenants 37 the sovereign power, contains no covenants 37 effect of adverse possession upon 48, 49 by tenant in tail, breach of covenant for seisin 58 by minor, not breach of covenant for seisin until disaffirmance . . 60 but minority is a breach of covenant for right to convey . . . 60 n. in execution of a power, covenants in 25n.,33 subsequent, no breach of covenants in prior 128 n. prior, enrolment of, when breach of covenants in subsequent deed 128 n. consideration of, may be proved by pai*ol 173, 174 but not against assignee without notice 222 release of covenants in, when effectual 220, 221, 228 where it passes no right of action on covenants in former conveyance 225 of grantor in possession carries benefit of covenants running with the land 233 of feoffment, passed by estoppel after-acquired title 243 aliler of grant or release 244 or of deed under statute of uses 244 when passing after-acquired title. (See Estoppel.) of covenant to stand seised to uses, when vested estate necessary to 254 n. of bargain and sale by tenant for life worked no discontinuance . 254 n. of lease and release, when introduced in England 281 in England, does not transfer after-acquired title .... 262 n. of partition, no implied warranty in 277 agreement in, how covenants for title limited by 295 description in, effect on covenants 297 estate conveyed by, effect on covenants 297 by married woman, her liability on the covenants 306-308 when avoided by fraud of vendor 322 when failure of consideration can be shown in 325 not precluded by covenants 327 n. when covenants in voluntary deed enforced in equity 367 when reformed in equity 383 when rescinded in equity 376 DEED-POLL, when covenant will lie against grantee under 272 n. INDEX. 673 DEFAULT, Section construction of word, in covenant for quiet enjoyment 92 DEFECT, of title, notice of, no bar to recovery on covenants 88, 89 mere existence of, no defence to payment of purchase money . . 333-372 DEMISE, covenants implied from 138, 270, 272 restrained by express covenants 275 power to, covenant of, when implied 273, 274 DESCENT, when vendor holds by, what covenants demandable 27 DEVISE, when vendor holds by, what covenants demandable 27 DEVISEE, liability of, on testator's covenants, at common law 311 how affected by statute of fraudulent devises 311 and by later statutes 311 rights of, on covenants for title 316 on joint and several covenants 315 n. DISCONTINUANCE, when produced by warranty 254 n. DISPOSSESSION, when it constitutes eviction 133-137 DISSEISIN. (See Warranty.) DISTURBANCE, tortious, covenant of warranty not broken by 127 exceptions to this rule 128 so, when by sovereign power 129 by suit in equity, breach of covenant of warranty 130 must be under paramount title hostilely asserted 132, 150 DIVISIBILITY, of covenants for title 214 Preston's opinion against 214 n. Sugden's contra 214 n. the latter adopted in America 214 n. DOUBTFUL TITLE, a bar to specific performance of the contract 32 but not a defence after execution of deed 333, 372 DOWER, warranty of tenant in, effect of statute 11 Hen. VII. c. 20 upon 10, 238 right of, not breach of covenant for seisin 59 aliter, of covenant against incumbrances 77 damages on admeasurement of 167 n. in action of, purchaser not estopped from denying grantor's title . 268 43 674 INDEX. E. EASEMENT, Section when not breach of covenant for seisin 59 when breach of covenant against incumbrances 79 highways, roads, water rights, etc 79 damages in such cases 191 ELECTION, doctrine of 301 n. ELEGIT, execution under, against real estate, when first allowed 309 EMANCIPATION PROCLAMATION, did not cause breach of warranty on sale of slaves 129 EMINENT DOMAIN, exercise of, does not cause breach of covenants for title . . . 129, 153 ENROLMENT, of prior deed, after subsequent conveyance, breach of covenant for seisin in latter 128 n. ENTRY, lawfully made, under paramount title, an eviction 133 EQUITABLE ESTATE, owner of, when entitled to benefit of covenants for the title ... 34 EQUITIES, assignee not affected by, without notice 222 EQUITY, suit in, when breach of covenants for quiet enjoyment and of warranty 130 when rule as to eviction relaxed in 148 redress on covenant for further assurance usually had in . . 194, 362 when rule as to measure of damages modified in 167 in some States, will compel purchaser to receive after-acquired title instead of damages 180, 258 by better rule, will not deprive him of his option 182, 258 will decree reconveyance by covenantee, after payment of damages . 185 mortgagor entitled to benefit of covenants in 219 enforces covenants to dispose of future acquisitions 254 n. bill in, proper remedy on implied warranty in partition .... 277 doctrine of election in 301 n. when married women liable on covenants in 307 when contract rescinded in, for fraud of vendor 322 when damages awarded in 354 Lord Cairns' Act 355 Sir John Rolfs Act 355 the Judicature Acts 355 Statute Law Revision Acts 356 specific performance 358 of executory contract, not decreed when title doubtful .... 32 of covenants on ground of quia timet 359 but jurisdiction exceptional 361 INDEX. 675 EQUITY — continued. Section specific performance, decreed in administration or marshalling of assets 364 and this, whether deed is or is not voluntary .... 364 and grantee entitled to prove as specialty creditor .... 364 but otherwise refused under voluntary deeds 366 nor will contribution nor exoneration be decreed .... 367 of covenant for further assurance . 98, 362 injunction . 369 on ground of quia timet 369 at suit of covenantor not usually decreed 369 should not be employed to deprive covenantee of his option to recover damages . . 179, 182, 258, 371 reconveyance compelled by, after recovery of damages . . . 185 nor at suit of covenantee 372 unless purchaser has present right to damages, collection of purchase money will not be enjoined 372 mere defect of title no ground for relief 372 nor will contract be rescinded 376 purchaser's knowledge of defect bars relief 378 but when purchaser entitled to present damages relief by injunc- tion granted 379 when insolvency or non-residence of covenantor strengthens purchaser's equity 380 but not unless paramount title is being actually prosecuted 381 exceptional cases where all the parties are before the court . . 382 when decreed in aid of reformation 383 n. reformation 383 by reason of fraud or mistake 383 chief difficulty is as to sufficiency of proof 383 introduction of parol evidence 384 of deeds by insertion of covenants 386 distinction between law and equity as to 387 how affected by codes of procedure 356, 388 EQUITY OF REDEMPTION, benefit of covenants did not pass with, at law, in England .... 216 so in Kentucky 216 contra in United States generally 218 and in equity 219 ESTATE, covenants qualified by nature of 85, 104, 298 limits of this doctrine 299 when divided, each owner may sue on covenants 214 n. doctrine that want of, defeats assignee's right to sue on covenants . 232 not followed in modern times 233 when it passed by estoppel at common law 242-244 (See Estoppel.) could not be enlarged by warranty 244 nor by covenants for title 262 n., 363 after- acquired, when it inures to purchaser 247-265 (See Estoppel ) GT6 INDEX. ESTATE — continued. Section acceptance of, by purchaser, does not estop him 268 unless he was possessed of valid title at the time 268 separate, of married woman, her liability on covenants in convey- ance of 307 ESTATE FOR LIFE, warranty by tenant of, void by Stat. 4 & 5 Anne, c 16 . . . . 10 outstanding, breach of covenant for seisin 58 measure of damages in such case 191 ESTATE FOR YEARS. (See Lease.) ESTATE TAIL, origin of 7 effect of warranty by tenant in tail 8 effect of statute de donis 8 evasion of statute by collateral warranty 8 common recovery inseparable incident to 9 n. conveyance by tenant, breach of covenant for seisin 58 not a discontinuance, though with warranty 113 n. in England, not enlarged into a fee by estoppel 262 n. ESTOPPEL, by judgment 178 n. title inuring by, should not affect purchaser's option to recover damages 179-182 did not affect doctrine that right to covenants passed only with the estate 232 by what caused, at common law 211 ordinary and personal effect of 242 extraordinary operation of 242 when it passed an estate 243 not by grant or i-elease 244 nor by conveyance under statute of Uses 244 by recital, admission, covenant, etc 245 operation of covenants by way of, difference between ordinary and extraordinary effect 246 American doctrine of passage of after-acquired title by ... . 247 presence of covenants necessary to this 247 established by statute in many States 248 authorities inconsistent as to grounds of doctrine and the cove- nants required 249 1st grounds of the doctrine, — theory of avoiding circuity of action 250 no estoppel where no right of action 250 as in Maine as to covenant of non-claim 250 nor where deed does not purport to convey indefeasible estate 250 nor by conveyance of tortious possession 250 nor where covenants have been extinguished 250 or are limited . . 250 cases where this theory does not apply 251 1 . where question is between assignees of different titles . . 251 2. usually, when covenantor is a married woman 251 3. in grants by States 251 INDEX. 677 ESTOPPEL — continued. Section contrary doctrine in North Carolina 251 n. 4. where covenantor is bankrupt 251 5. in Massachusetts, when covenants have been barred by statute of limitations 251 2d. what covenants produce this effect, — covenant of warranty held to transfer estate subsequently obtained . 252 but not when implied from partition 252 nor when estoppels are mutual 252 nor in conveyance prohibited by statute 252 nor in covinous deed 252 covenant for further assurance, in Illinois and Wisconsin, works an estoppel 252 in Missouri and Minnesota, it merely creates an equity in favor of grantee 252 covenants of right to convey and for quiet enjoyment work an estop- pel in some States 252 doctrine of actual seisin prevents estoppel on covenant for seisin . 252 n. covenant of non-claim usually creates estoppel, except in Maine . . 253 no settled law as to effect of covenant implied from " grant, bargain, and sell " 253 doctrine applied to other covenants than those for title 253 origin of the doctrine 254 based on passages in Littleton, and Coke's commentary 254 explanation of the passages, which have no connection with estoppel or covenants 254 effect of a covenant as a personal rebutter 255 as evidence of the contract 255 grounds upon which cases can be rested 256 1. that covenants operate as a personal rebutter, to avoid circuity . of action 256 2. that they have the effect of a particular averment 256 difference between effect of covenant as a rebutter and as actually transferring the estate 257 1. as between purchaser and vendor 258 after-acquired title would relate back to original conveyance . 258 hence plaintiff could not sue on covenant of warranty .... 258 and only nominal damages on covenant for seisin 258 after-acquired title would be forced on purchaser 179, 180, 258, 371 this not allowed after eviction, in some States 258 2. as between purchasers from the same vendor 259 doctrine violates spirit of registry acts 259 practical injustice of this 259 doctrine not followed in Pennsylvania and some other States . 259 effect of notice in taking case out of the spirit of the registry acts 260 conflict between old and modern principles 261 the doctrine not held in England 262 result of the authorities 264, 265 purchaser not estopped by covenants in purchase-money mortgage . 266 covenantor not estopped from showing that conveyance was subject to incumbrances 267 678 INDEX. ESTOPPEL — continued. Section purchaser not estopped by acceptance of estate 268 unless possessed of valid title at time of conveyance .... 268 not estopped from denying accuracy of recitals of title . . . 269 EVICTION, unnecessary to aver, in action on covenant for seisin 62 not essential to action on implied warranty at common law . . . 114 when record of adverse suit evidence of 123 but not that eviction was under paramount title unless to one party or privy to suit 123 necessary to breach of covenants of warranty and for quiet enjoy- ment 127 exceptions 128 original and technical meaning of 132 actual, legal process not necessary to 132 what constitutes 133 when purchaser may surrender without actual dispossession . 134-137 but ouster must be lawful 134 and paramount title be hostilely asserted 135 retirement of purchaser puts burden of proof on him .... 136 constructive eviction, — 1. inability of purchaser to obtain possession 139 owner of wild lands deemed in possession 140 constructive possession given by deed operating under statute of Uses 140 assertion of adverse title necessary to eviction 140 what constitutes such assertion 140 mere sale by true owner no assertion of title 140 exceptions to this rule 140 eviction must be by title paramount, not by adverse possession which might ripen into good title 141 2. covenantee's compulsory purchase or lease under paramount title 142 rule that tenant cannot dispute landlord's title does not apply between vendor and purchaser 142 Mississippi rule stricter 143 no distinction between lease and purchase of paramount title . 145 or whether before or after decree establishing paramount title . 146 exceptional cases contra 147 exceptional cases in equity 148 distinction between different covenants as to 149 hostile assertion of title necessary 150 different rule might apply in England, on covenant for quiet enjoyment 151 and in Maine, on covenant of non-claim 151 where loss is of incorporeal rights, or something which represented the land 152 by diversion of water 152 construction of a canal 152 review of cases upon 154 measure of damages on 162 (See Damages, Measure of.) INDEX. 679 EVICTION — continued. Section of purchaser, when entitles him to detain purchase money at law 330-334 or to relief in equity .... 379 EVIDENCE, that covenant was not to extend to a particular incumbrance, when inadmissible 88, 174 n. when admitted to show that purchaser agreed to discharge in- cumbrance ... 267 that adverse title was not derived from covenantor, admissible in spite of notice . 122 of eviction from record of adverse suit 123 paramount title not so proved, without notice 123 of value of land, when consideration is 158 when admissible to contradict consideration 173 as to value of land where no consideration expressed 175 of relative value on partial failure of title 187 when life tables admissible in 191 of special use of land to purchaser, inadmissible 191 n. mere fact of payment not evidence of value of outstanding title or incumbrance .... 192 of set-off, when allowed 323, 324 when partial or total failure of consideration can be shown . . . 332 and relief afforded in equity 379 (See Burden of Proof, and the several covenants.) EXCAMBIUM, warranty implied from use of word 270 EXCHANGE, warranty and condition of re-entry implied from 270, 276 " double title " 276 this effect abolished in England by statute 276 EXECUTED AND EXECUTORY CONTRACTS, different doctrines which govern 42, 319 (See Contract.) EXECUTION, after recovery of damages, when stayed until reconveyance . . . 185 EXECUTOR, covenants demandable from 33 rights of, never succeeded to warranty 204 contra of covenants for title *. . 204 entitled to benefit of covenants broken in testator's lifetime . . 318 liability of, at common law 309 how altered by statute 309, 310 real estate, when assets in the hands of 309, 310 bound by debts and covenants of decedent 309, 310 no distinction between covenants broken before and after testator's death 312 not bound to retain assets to meet future contingent breaches . . 312 n. (See Covenants for Title, extent to which they run with the land.) 680 INDEX. EXONERATION", Section when allowed in equity 367 but not under voluntary deed 367 EXPENDITURE. (See Costs; Improvements.) EXPENSES, in litigating title, when recoverable as damages 200 (See Damages.) EXPRESS COVENANTS. (See Implied Covenants.) EXPRESS WARRANTY. (See Warranty.) EXTINGUISHMENT, of covenants, by grantor becoming invested with estate conveyed . 223 prevents estoppel 250 F. FAILURE OF TITLE, right to recover or detain purchase money by reason of. (See Pur- chase Money.) FEES. of counsel, when recoverable as damages 200 FEMES COVERT. (See Married Women.) FENCES, when breach of covenant for seisin 58 against incumbrances 77 FEOFFMENT, efficacy of, at common law 243 FIDUCIARY VENDORS, usual covenants of ... 33 form of , under " Conveyancing and Real Property Act " . . 33 when bound by other covenants 36 cannot show consideration not received by him or for his use . 174 (See Executor.) FINE, when covenant for further assurance extends to levying 104 passed estate by estoppel 243 created an estate sufficient to support a warranty 254 liability of married woman under fine with warranty 306 FORMER RECOVERY, when bar to subsequent action 189 FORMS. (See Covenants for Title.) FRAUD, in absence of, covenantor with notice cannot prove that eviction was not under paramount title 117 cannot increase damages in action of covenant 159 remedy of purchaser in case of 167, 322 deed made in, creates no estoppel 252 INDEX. 681 FRAUD — contini ed. Section and mistake, the only exception to the rule that purchaser's right to detain or recover back purchase money depends on the cove- nants 321, 322 what degree of concealment and misrepresentation amounts to . . 322 distinction between allec/atio falsi and suppressio veri 322, n. action for, innocent misrepresentation by mistake can never be the ground of 322, n. action for, the scienter essential 322, n. FRAUDULENT DEVISES, effect of i atute of 309-311 FREEHOLD, could not pass without livery of seisin 38 except in case of fines 38 n., 243 warranty originally implied only on transfer of 113 effective only when paramount estate was 113 FULL COVENANTS, in the United States, what are 21 forms of 21 n. FURTHER ASSURANCE, covenant for : 98-109 usual covenant in England 20 form of 20, 21 n., 99 not required of fiduciary vendors 33 nature and importance of 98 little used in United States 98 mode iu England of requiring performance 99 when broken 99 what acts demandable under 100-108 must be necessary 100 practicable 101 lawful 102 requested within reasonable time 103 levying a fine 104 removal of judgment, or incumbrance 104 character of, depends upon, — 1. scope of the other covenants; if general, purchaser may invoke aid of equity to remove incumbrance 104 aliter, if limited 101 2. nature of estate conveyed 104 covenants restricted 104, 105 in England, duplicate of original deed may be required . . . 107 covenants not demandable in deed of further assurance itself . 108 pleadings 109 declaration must state what assurance was required 109 release of. (See Release.) will not enlarge estate beyond that intended to be granted . . . 262 n. when satisfied by statute of limitations 229, 314 when heir may sue on. though not named 316 specific performance of, when enforced 98, 104, 262, 362 682 INDEX. FURTHER ASSURANCE — continued. Section runs with the land 230 measure of damages on. (See Damages, Measure of.) operation by way of estoppel. (See Estoppel.) FUTURE ESTATES. (See Estoppel.) G. GATE, erection of, when breach of covenant of warranty 131 n. GAVELKIND, heir by custom of, ancestor's warranty did not descend upon . . 238 n. except by way of rebutter 238 n. GENERAL ISSUE, 332 n. GIVE. (See Dedi.) GOOD AND SUFFICIENT DEED, meaning of, in contract 32 GOOD RIGHT TO CONVEY. (See Right to Convey.) GRANT, operation of, at common law 244 did not pass estate by estoppel 244 by State, when operative as estoppel 251 "GRANT, BARGAIN, AND SELL," origin of statutory effect of 4n. does not imply warranty * 271 n. covenants implied from by statute, in England 282-284 in America 285, 286 GROUND RENT, form of covenant for quiet enjoyment in deed reserving 22 n. usual covenants in such deed 91 how it affects measure of damages on eviction 170 when purchaser entitled to detain unpaid 352 GUARDIAN. (See Fiduciary Vendor.) H. HEIR, who had not yet entered, had seisin in law 38 when value of improvements recoverable from, on admeasurement of dower 167 n. alone received benefit and burden of warranty 204, 277 by custom of gavelkind and borough English, not bound by war- ranty 238?i. except by way of rebutter 238 n. difference between liability for damages and effect of rebutter as to 240 INDEX. 683 HEIR — continued. Section liability of, at common law . 309 must be named 309 must have assets by descent 309 liability for specialty debts and covenants of ancestor .... 309 warrantia chartce or voucher brought against 309 effect of alienation before suit brought 309 statute of fraudulent devises 309 difference as to liability of, in England and America 310 American statutes making decedent's debts liens 310 rights of, — to take advantage of warranty must be named 316 contra, as to covenants for title 316 when entitled to sue on covenants 316 HIGHWAY, not breach of covenant for seisin 59 as to covenant against incumbrances 80-S2 HOMAGE, originally reciprocal with warranty 2, 277 how affected by statute of quia emptores 6, 271 HOUSE, right of occupancy of, when breach of covenant ag-ainst incumbrances 77 building, removing, or destroying, when breach of covenants 131 n., 152 n. HUSBAND AND WIFE, form of covenant by, in wife's deed under power 25 n. (See Married Women.) I. IMPLIED COVENANTS, from words of leasing 270, 272 " yielding and paying " 272 n. from relation of landlord and tenant 272-274 but not of power to demise, or good title 274 New York rule 272 re. not implied on assignment of leasehold 272 are restrained by express covenants 275 cannot outlive estate from which granted 275 distinction between express and implied "covenants 275 n. not implied from recitals 280 statutory implied covenants in England 282-281 run with land 210 in United States 2S5, 286 are limited 285 when estoppel created by 253 IMPLIED WARRANTY, from word dedi at common law 3, 270 existed only for donor's life where no tenure created 4 did not pass to heir or assignee unless expressly named 203 684 INDEX. IMPLIED WARRANTY — continued. Section did not arise from "grant, bargain, and sell" 270 n. effect of statutes de bigamis and quia emptores upon . . . . 4, 6, 271 not restrained by express warranty 271 did not run witb the laud 271 arose from exchange 270, 270 from partition by writ 270, 277 originally only in favor of coparceners 277 extended by statute to joint tenants and tenants in common 277 but not from partition by deed 277 American cases contra as to this 278 effect of, in partition, at the present day 279 when bill in equity proper remedy on 279 does not work estoppel 279 on sale of chattels 60 IMPROVEMENTS, not recoverable as damages for breach of covenant for seisin . . . 158 nor, by better rule, in suit on covenants for quiet enjoyment and of warranty 162-166 aliter in some States 163 exceptions to the rule 169-171 when recoverable on admeasurement of dower 167 n. when recoverable in case of vendor's fraud 167 INCORPOREAL HEREDITAMENTS, were subject of warranty 153 and of covenants for title 153 INCREASE IN VALUE. (See Damages, Measure of.) INCUMBER fiduciary vendors covenant only that they have done no act to . . 33 INCUMBRANCES, what constitute 75, 76 must be discharged before completion of sale, unless intended to enter into consideration 3 2 when breach of covenant for seisin 59 removed in equity, under covenant for further assurance . . 104, 362 cannot be excepted from covenants by parol evidence ... 88, 174 n. effect of declarations that estate is free from 301 n. covenant against 70-90 distinction between, and other covenants 149 usual in conveyances . " 20 form of 20, 21 n. by trustee °* in England, supplemental to covenant for quiet enjoyment . . 70 distinction between covenant that estate is free from, and that purchaser shall enjoy free from 70, 73 n. practical consequences of this 71 in United States, by general current of authority, does not run with the land 72 construction of, when joined with covenant for quiet enjoyment 7:5 distinction between, and covenants to discharge incumbrances . 74 INDEX. 685 INCUMBRANCES — continued. Section breach of covenant against 77-85 broken by mere existence of incumbrance 70 rules by which to determine what is or is not an incumbrance . 76 by mortgage 77 judgment . 77 dower s . . . 77 taxes 77 paramount right 77 restrictions of use of building . 77 building restrictions 77 leases 77, 78 easements 79 party-wall 79 authorities divided as to public highways 80-82 Illinois rule as to railways 82 rights of water 83-85 mill-dams 83 rights of light 81, 85 pleadings 86 plaintiff must prove incumbrance 86 form of declaration 86 n. damages should be laid with reasonable certainty ... 86 burden of proof 87 known incumbrances should be excepted from covenant . . . 88, 89 notice of incumbrance no bar to recovery 88 parol evidence not allowed at law to vary covenant 88 when excepted, covenantor not liable 88 vendor's omission to disclose incumbrances an offence in some States 90 does not run with the land in most States 212 right of assignee of, to sue in name of covenantee 227 effect of release of 228 liability on, when discharged by bankruptcy 303 when satisfied by statute of limitations 314 measure of damages on. (See Damages, Measure of.) capacity for running with the land. (See Covenants fob Title, extent to which they run with the land.) operation of, by way of estoppel or rebutter. (See Estoppel.) INDEFEASIBLE SEISIN, doctrine of, as opposed to actual seisin 41 INDEMNITY, when covenant against incumbrances is covenant of 70, 74 covenant of, when specifically enforced 359 but jurisdiction exceptional 361 INFANT, conveyance of, no breach of covenant of seisin until disaffirmance . 60 aliter, of covenant of right to convey 60 n. INJUNCTION, at suit of covenantor 369 on principle of quia timet, not usually decreed 369 686 INDEX. IN JUNC TION — continued. Section should not be employed to deprive covenantee of his option to recover damages 179, 182, 258, 371 reconveyance compelled by, after recovery of damages .... 185 at suit of covenantee, not decreed to detain purchase money unless purchaser has present right to damages 372 mere defect of title no ground for relief by 372 aliter when purchaser entitled to present damages 379 equity for relief by, when strengthened by insolvency or non- residence of covenantor 379 but not unless paramount title is being actually prosecuted . . 381 exceptional cases where all the parties are before the court . . 382 when decreed in aid of reformation 383 n. INSOLVENCY, of covenantor, when it strengthens purchaser's right to detain pur- chase money 389 INTEREST, upon consideration money when allowed as damages 196 (See Estate; Estoppel.) INTERRUPTION. (See Eviction.) INVOLUNTARY ALIENATION, covenants for title pass by 213 no estoppel created by 247 n. J. JOINT COVENANTS, what are 304 who may sue on 315 JOINT TENANTS, covenant separately 25 warranty implied in partition by writ between 277 (See Tenants in Common.) JUDGMENT, on writ of warrant ia chartae 11 bound other lands of warrantor 11 n. not a breach of covenant for seisin 59 aliter of covenant against incumbrances 77 on covenants, may be impeached for fraud 146 n. conclusive evidence of paramount title, when covenantor has notice of suit under it 117, 146 n. removal of, will be decreed under covenant for further assurance . 104 may be recovered against all previous covenantors 214 but only one satisfaction allowable 214 JUDICATURE ACTS, in England, effect of, in affording equitable relief in common law courts 356 INDEX. 687 JUDICIAL SALES, Section purchaser at, entitled to benefit of covenants which run with the land 213n. when rule of caveat emptor applies to 338ra. JURY, when question of incumbrance matter for 85 notice to covenantor, to some extent matter for 120 K. KNOWN INCUMBRANCES, should be excepted from covenants 88, 89 L. LAND, value of, at time of sale, measure of damages on covenant for seisin 158 on covenants for quiet enjoyment and of warranty 162 increased value of, and improvements, not recoverable 158, 159, 162-166 exceptions to this rule 169-171 consideration expressed, not conclusive as to value 173 evidence of value, where no consideration expressed 175 warranty implied on exchange or partition of 270, 276, 277 when liable for debts of decedent 309 covenants running with. (See Covenants for Title.) LANDLORD AND TENANT, covenants implied from relation of 272-274 (See Lease.) LATENT DEFECTS, when vendor bound to disclose 322 n. LEASE, title under, not usually examined by lessee 20 covenant for quiet enjoyment the only usual one in ... . 20, 26, 91 not limited to acts of lessor 20, 26 when breach of covenant for seisin 58 against incumbrances ... 77, 78 compulsory, under paramount title, an eviction 142 when an eviction before judgment 145 damages for breach of covenants in 169 value of term lost 169 in Pennsylvania nominal damages only 169 when breach of covenant against incumbrances, what is measure of damages 191 operates by way of estoppel 213 implied covenants from words of 270, 272 " yielding and paying " 272 n. from relation of landlord and tenant 272-274 688 INDEX. LEASE — continued. Section assignment of, no covenants implied in 272 parol, only covenant for quiet enjoyment implied 274 but not of power to lease 274 statutory rules as to such covenants 272 n. covenants implied from, restrained by express covenants .... 275 cannot endure longer than estate from which granted .... 275 different from express covenants 275 n. covenants in, binding on assignee of reversion 313 assignee entitled to benefits of 318 LEASE AND RELEASE, deeds of, when introduced in England 281 do not transfer after-acquired title 262 n. LEASEHOLD INTEREST, usual covenants on assignment of 20 form of 20 n. no covenants implied on assignment of 272 LEGAL PROCESS, not necessary to an eviction 132 "LET," covenants implied from the word 272 LEX LOCI REI SITiE, when action of covenant depends on 302 LIABILITY, of assignee. (See Assignee.) covenantor. (See Covenantor.) devisee. (See Devisee. ( fiduciary vendor. (See Fiduciary Vendor.) heir. (See Heir.) married woman. (See Married Women.) (See Covenants for Title; Purchaser.) LIEN, debts due by covenant, when a lien on decedent's estate .... 310 LIFE ESTATE. (See Estate for Life ) LIGHT, right of, when breach of covenant against incumbrances ... 84, 85 LIMITATIONS, statute of, when bar to action on covenants 229, 314 in Massachusetts, covenants barred by, operate by way of estoppel . 251 LIVERY OF SEISIN, actual possession essential to 47 n., 254 LOCAL ACTION, when action of covenant is 302 LORD CAIRNS' ACT, effect of, as to awarding damages in equity 355 as to this, not repealed by Judicature Acts . 356 nor subsequent legislation 357 INDEX. 689 M. MAINTENANCE, Section doctrine of 47 MARRIAGE SETTLEMENTS, when contain covenants for title 20 objections to such practice 20 MARRIED WOMEN, . contracts by, absolutely void at common law 25, 306 form of covenant by, under power 25 n. feme sole traders 25 n. in England, until recently, could only convey by fine 306 in United States, separate acknowledgment substituted 306 separate estate of, liability in equity on covenants in conveyance by 307 liability of, under " Married Women's Acts," 25,308 liability on covenants for title provided for in some States .... 308 when estopped by their covenants 251, 308 n. MARSHALLING ASSETS, specific performance of covenants decreed when incidental to 301 n., 306 (See Assets.) "MEANS," construction of word , 93, 95 MERGER, of covenants, by grantor becoming invested with estate conveyed . 223 MESNE PROFITS, claim for, counterbalanced by interest on consideration money . . 196 METES AND BOUNDS, when covenants extend to 298 MILL DAM, when breach of covenant against incumbrances 83 MINISTERIAL VENDORS, no covenants required from 37 MINOR. (See Infant.) MISREPRESENTATION, of vendor, when fraudulent 322 MISTAKE, when covenants reformed in equity on ground of 383 MORTGAGE, usual covenants in 20 in England, covenants not restricted to acts of mortgagor . . 20 so to some extent in America 26 contains no covenants in Pennsylvania and some other States . 26 not breach of covenant for seisin unless mortgagee has entered . . 59 aliter, of covenant against incumbrances 77 benefit of covenants originally passed with, at common law . . . 216 modern rule as to this 218 mortgagor, when after-acquired title of, works an estoppel .... 262 for purchase money, purchaser not estopped by covenants in . . . 266 44 690 INDEX. N. NATURAL LOVE AND AFFECTION, Section consideration of, sufficient to support covenants 251 n. NOMINAL DAMAGES. (See Damages, Measure of.) NON-CLAIM, COVENANT OF, employed particularly in New England States 22 form of 22 n. in Pennsylvania, used in deeds of extinguishment of ground rent . 22 n. no practical difference between it and covenant of warranty . . 22, 115 runs with the land, except in Maine 231 operates by way of estoppel 115, 253 except in Maine 115,253 NON-RESIDENCE, of covenantor, when strengthens purchaser's equity to detain purchase money 380 NOTICE, of incumbrance, no bar to recovery at law upon covenants .... 88 when a bar in equity 88 to covenantor, of action on paramount title * 117-125 effect of 117 to prosecute title 118 what constitutes proper notice 119 it should be explicit 119 and semble in writing . 119 given in reasonable time 120 n. question of, to some extent for the jury 120 not conclusive on covenantor as to title in all cases 121 effect on proof of paramount title required 122 where none is given, effect of judgment 123 record is evidence of eviction only, not of title paramount . 123 not necessary to recovery by covenantee 124 advantage of, to him • . 124 but necessary to warrantia chartce at common law 124 when necessary, to recover costs and expenses as damages . . 200 to assignee, necessary to affect him with equities 222 effect of release without, on subsequent purchaser 223 purchaser without, in some States estate is transferred by estoppel as against 259 contra in others, and in England 259, 262 to purchaser, how affecting the theory of the registry acts . . . 260, 261 to purchaser, to deprive him of right to detain purchase money, in Pennsylvania must be actual 341 of incumbrance, not conclusive upon purchaser 344 INDEX. 691 0. OBJECT, Section covenants having the same, how far they limit each other . . . 288-292 OPTION, of recovering damages or accepting after- acquired title, should rest with purchaser 179, 182, 258, 358 ORPHANS' COURT, rule of caveat emptor applies to sales by 338 n. OUSTER IN PAIS, what constitutes 134 {See Eviction.) P. PARAMOUNT TITLE, hostile assertion of, essential to breach of covenants for quiet enjoy- ment and of warranty 132-135, 150 rule when relaxed in equity 118 nee'd only be substantially set forth in pleading 63, 86, 155 must be averred to have existed before and at the time of the con- veyance 155 when record of adverse suit is evidence of 122, 123 PAROL, validity of notice of adverse suit by 119 in America, performance of a sealed contract may be dispensed with by 221 lease by, what covenants implied in 274 evidence. {See Evidence.) PARTIES TO COVENANTS. (See Assignee; Devisee; Executor; Heir; Married Women; Purchaser; Vendor.) PARTITION, warranty and condition of re-entry implied from, when made by writ of • 270,277 aliter, when made by deed 277 and only between coparceners 277 by writ, joint tenants and tenants in common had no right to, at common law 277 effect of statute 31 Henry VIII. c. 1 277 no estoppel from implied warranty in 279 remedy on implied warranty in 279 "PARTY OR PRIVY TO," importance of the words in a trustee covenant 33 n. PARTY-WALL, when breach of covenant against incumbrances 79 PATENT RIGHT, covenants in assignment of, construed strictly 291 n. 692 INDEX. PEDIGREE, Section in abstracts of title, usually verified by affidavit in England . . . 17 n. rarely so in America 17 n. PERFORMANCE, of sealed contract, may in America be dispensed with by parol . . 221 PERSONAL COVENANT. (See Covenants for Title ) PERSONAL EXPENSES, of purchaser, in defending title, when recoverable 200 PERSONAL PROPERTY, warranty of title implied on sale of 60 when covenantee must first proceed against 310 PERSONAL REPRESENTATIVES, when entitled to sue on covenants for title 205, 317 PEWS, liability of owners of, for assessments, not breach of covenant against incumbrances 77 n. PLAINTIFF, entitled to judgment, on covenant for seisin, if there be no evidence on either side 65 rule how affected by statutory systems of pleading 65 must prove incumbrance in action on covenant against incumbrances 86 (See Burden of Proof.) PLEADINGS. (See the different covenants.) POSSESSION, essential to livery of seisin at common law 47 doctrine not altered by Pretended Title Act 48 distinction between this doctrine and that of the Champerty Acts 48 without right, destitute of all the qualities of an estate in England . 54 inability to obtain, when eviction 139 damages, when it has not been disturbed 178 when it has ripened into valid title 178 deed of grantor in, passes benefit of covenants 233 (See Seisin, Covenant of.) POWER, to sell, includes power to covenant 35 to demise, when implied from words of lease 272, 273 relation of landlord and tenant 274 form of covenant by married woman conveying under 25 n. PRESUMPTION, of satisfaction of covenants from lapse of time 229, 314 effect of this on covenants broken as soon as made . . 229, 314 "PRETENDED TITLE ACT," did not alter common law requirement of possession 47 re-enacted in some States and modified in others 47 PRICE. (See Damages, Measure of.) PRINCIPAL, when bound by covenants of agent 35 INDEX. 693 PRIVITY, Section of tenure, created by every transfer of an estate by the feudal law 203 n. of estate, doctrine that covenants run with the land ascribed to . 203 n. "PRIVY." (See "Party or Privy to.") "PROCUREMENT," meaning of the word 95 PRODUCTION, of title deeds, demandable under covenant for further assurance . 107 PUBLIC ROAD. (See Highway.) PURCHASE, compulsory, of paramount title, is eviction 142 even before decree establishing title 146 PURCHASE MONEY, what constitutes consideration for 327 purchaser's right at law to detain 321 depends upon covenants in deed 321, 323 if there are no covenants, no relief granted 321 except in cases of misrepresentation or concealment by vendor 321, 322 denied where no eviction, actual or constructive, has occurred . 330-333 but allowed after eviction 334 where purchaser has been compelled to buy in outstanding title 334 doctrine in Pennsylvania 335-352 purchaser's right depends not on covenants, but on intention of the parties 338 may defend by reason of defect of title, unless he was to take the risk 338 application of the rule, — 1. where defect or incumbrance is unknown 340 what must be its character 340 what will be deemed notice to purchaser 341 constructive notice not sufficient 341 2. where there is known defect or incumbrance and no covenant . 342 intention that purchaser should assume risk inferred . . 343 but such presumption not conclusive 344 in case of pecuniary incumbrance, no such presumption . . 345 doctrine not applicable where security is given after pur- chaser acquires notice 346 3. where there is covenant against known defect or incumbrance . 347 purchaser cannot detain purchase money unless covenant is broken 347 bound to perform his engagement when his knowledge and the state of facts continue the same as at time of con- veyance 347 criticism of the doctrine 349 where covenant is broken when suit is brought, purchaser need not restore possession before defending on that ground 350 when covenant not broken and purchase money secured by mortgage, purchaser must pay or restore possession . . . 351 694 INDEX. PURCHASE MONET— continued. Section rights of purchaser on sale on ground rent 352 in case of eviction, rent apportioned pro tanto 352 doctrine in Texas 353 vendee may, before eviction, detain unpaid purchase money on partial or total failure of consideration 353 purchaser's right in equity to detain. (See Equity.) PURCHASER, while contract is executory, has a right to a title clear of defects and incumbrances 18, 32, 319 agreement by, to waive this right, must be unequivocal 32 has a right to covenants for the title 18 after contract is executed, rights depend upon covenants .... 98 rights of, under covenant for further assurance 104, 362 should give notice of action on paramount claim 116 after notice, how far required to prove paramount title 122 may surrender possession to owner of paramount title .... 134—137 but does so at his own risk, and assumes burden of proof 136, 146 n. inability of, to obtain possession, is constructive eviction .... 139 cannot recover value of improvements as damages .... 158, 164 reasons for the rule 165, 166 remedy of, for fraud of vendor 167 distinction between increased value from improvements and from other causes lG7n. motive of, for the purchase, cannot increase damages . . . 168, 191 n. exceptions to these rules 169-171 not concluded by consideration clause 173 but may prove real consideration by parol 174 in England, may recover successively on covenant for seisin as often as damage is sustained 177 possession of, when it has ripened into a valid title under the statute of limitations, nominal damages only recoverable 178 recovery of nominal damages by, when it bars subsequent action . 178 right of, in action on covenant for seisin, to consider the contract rescinded 178 title inuring to, by estoppel, when it reduces damages . . 179, 1S2, 258 rights of, not affected by power to purchase or remove defect or incumbrance 181 when equity will not deprive him of his option to recover damages 182, 258 reconveyance by, when decreed after recovery of damages . . 184, 185 entitled to recover pro tanto, for partial breach of covenant for seisin 1S6 but cannot rescind sale therefor 187 entitled to only nominal damages on covenant against incumbrances, where no actual injury 1S8 damages of, when incumbrance cannot be extinguished, a question for the jury 190 when outstanding title can be obtained, or incumbrance re- moved, measured by amount bona fide paid 192 in some States, cannot exceed consideration money and in- terest 192 redress of, on covenant for further assurance, usually in equity 98, 194, 362 INDEX. 695 rURCH ASER — continued. Section can recover only nominal damages for breach of this covenant, un- less ultimate damage has been sustained 195 when entitled to recover interest on consideration money .... 196 costs, counsel fees, and expenses 197-201 (See Damages, Measure of.) at sheriff's sale, entitled to benefit of covenants of debtor's estate 213 n. in England, benefit of all prior covenants vested in .... 213 may sue all prior covenantors 214 but can have only one satisfaction 214 intermediate, when entitled to sue for breach of covenants . . . 215 how far affected by vendor's release of covenants 220-223 but not by unknown equities 222 release should be recorded 223 when entitled to sue in name of covenantor 226 deed to, by grantor in possession, carries benefit of covenants . . 233 right of, to conveyance of title subsequently acquired by vendor . 258 effect of American doctrine of estoppel upon this right . . . 258 rights of, as against purchaser of after-acquired title 259 in many States, second purchaser takes nothing 259 this doctrine in conflict with the spirit of the registry acts . . 259 how far effect of registry acts should be modified by actual notice to second purchaser 259 review of the authorities 2G0, 261 in England, estoppel does not pass after-acquired title 262 especially as against innocent purchaser without notice . . . 262 rights of, in vendor's after-acquired title, summary of the doctrine . 264 not estopped by covenants in purchase-money mortgages .... 266 agreement of, to discharge incumbrances, when this can be proved . 267 not estopped by acceptance of deed 268 unless he has in himself the valid title at the time of the con- veyance 268 not estopped from denying accuracy of recitals of title 269 (See Estoppel.) by deed poll, when covenant will lie against 272 n. right of, on payment of incumbrance, to be substituted to the rights of the holder of the incumbrance 301 n. effect of vendor's declaration that estate is free from incumbrances 301 n. action by, when right is founded on privity of contract, transitory . 302 when right is founded on privity of estate, local 302 legislative alterations of this rule 302 no suits local in equity 302 rights of, how affected by vendor's bankruptcy 303 when covenants are joint, or joint and several 304, 315 on covenants by married women 305-308 at common law, might sue heir or executor 309 effect upon, of alienation of land before suit brought 309 rights of, against heir, in America to a great extent statutory . . 309 from heir, before action brought, takes clear of liability in England 310 in America decedent's debts are liens, and can be enforced against the land in the purchaser's hands 310 696 INDEX. PURCHASER — continued. Section in mauy States, purchaser must first obtain satisfaction out of the personal estate .310 position of devisee much the same as that of heir 311 rights of, as against executor or administrator 312 right of action of, in America, on covenants broken as soon as made, accrues at once 314 presumption of satisfaction in twenty years 314 right of action of, on other covenants, not affected by statutes of limitation till actual breach 314 remedy of, after contract executed, depends on covenants . . . 320, 323 except in case of fraud or mistake 321, 322 unless evicted, not entitled to detain unpaid purchase money at law or in equity 331-333, 372 aliter if evicted 334, 375 entitled to present damages or compelled to buy in outstanding title 334 when allowed in Pennsylvania to detain purchase money . 335-352, 375 when entitled to detain unpaid ground rent 352 (See Purchase Money.) with covenants, entitled to prove against vendor's estate as a spe- cialty creditor 309, 364 estate of, not enlarged by specific performance of covenants . . . 363 rights of, in equity, under voluntary deed 364 in marshalling or administering assets 364 by specific performance 367 contribution 368 exoneration 368 injunction at suit of 369 (See Equity ; Injunction ; Purchase Money.) ■when notice to, of incumbrance bars relief in equity . . . . 88 n., 398 Q. QUALIFIED COVENANTS. (See Covenants for Title.) QUANTITY, of land, covenants for title do not extend to 289, 297 unless directly intended to insure a particular quantity . . . 297 QUIA EMPTORES, effect of statute of, upon warranty 6, 271 QUIA TIMET, specific performance of covenants when decreed on ground of . . . 359 but jurisdiction exceptional 361 injunction on ground of 369 QUIET ENJOYMENT, covenant for 91-97 definition of 91 INDEX. 697 QUIET ENJOYMENT— continued. Section form of 20, 21 n. only covenant usual in leases and ground rent deeds 91 usually restricted to acts of vendor and those claiming under him 20, 21 n , 92 effect of words " by, from, or under" 92 " acts and means " 93 "default" 94 " means, title, or procurement" 95 breach of. (See Warranty, covenant of.) pleadings on. (See Warranty, covenant of.) QUITCLAIM, form of deed in Massachusetts and other States 30 R. RAILWAY, on land, not breach of covenant against incumbrances in Illinois 82 REAL COVENANTS. (See Covenants for Title.) "REASONABLE ACTS," construction of term 100-108 REBUTTER, operation of warranty by 114, 237 effect of, on heir 210 dependent on presence of warranty 241 (See Estoppel.) RECITAL, when it works an estoppel 245, 248 of title, purchaser not estopped by 269 covenants not implied from 280 RECONVEYANCE, when required of purchaser 185 when execution stayed until 185 when decreed in equity 185, 371 RECORD, when notice to covenantor not shown by, effect as to burden of proof of paramount title 121, 122 of adverse title, is evidence of eviction 123 but not that title was paramount 123 RECORDING ACTS. (See Registry Acts.) RECOUPMENT, doctrine of 324 RECOVERY, of damages, when it revests title in grantor 184 when a bar to a future action 189 REDDENDUM, covenants implied from 272 n. 698 INDEX. REDEMPTION, Section equity of, when covenants run with 218 RE-ENTRY, condition of, when implied from exchange and partition . 270, 276, 277 REFORMATION, of covenants for title in equity 296, 383 by reason of fraud or mistake 383 chief difficulty is as to sufficiency of proof 383 introduction of parol evidence 381 of deed by insertion of covenants , 386 distinction between law and equity as to 387 how affected by codes of procedui'e 356, 388 REGISTRY ACTS, spirit of, not in harmony with doctrine of passage of after-acquired estate by estoppel 259 purchaser's rights under, effect of notice upon 260 release of covenants for title, when comes within 223 RELATIVE VALUE, of land, when the measure of damages 187 RELEASE, of covenants for title, ineffectual after conveyance 220 binding when made by owner of estate 221 at common law barred action by subsequent purchaser . . 221 parol, usually valid in America 221 should be recorded 223 of covenants broken as soon as made, effect of 225 deed of, created no estoppel at common law 244 RENT. (See Ground Rent; Lease.) RESCISSION, of contract, when purchaser entitled to, after breach of covenant for seisin 178-185 not allowed on partial failure of title 187, 376 nor upon total failure, unless right to present damages 379 exceptional cases when all parties before the court 382 RESTRICTIVE WORDS. (See the different covenants.) RESULTING TRUST, when grantor estopped by covenants from asserting 267 n. REVERSION, assignee of. liable on covenants in conveyance of leasehold .... 303 RIGHT OF LIGHT, wlnm breach of covenant against incumbrances 84, 85 RIGHT OF WATER. (See Water.) RIGHT OF WAY, not breach of covenant for seisin 59 aliier, of covenant against incumbrances 79 measure of damages for 191 when breach of covenant of warranty 594 INDEX. 699 RIGHT TO CONVEY, Section covenant for GG-G9 form of 20, 21 n. in England, has superseded covenant for seisin 20, G6 application of doctrine of actual seisin to 50, G7 when synonymous with covenant for seisin 67 breach of G8 by conveyance by minor 60 n. in most States, held to be broken as soon as made .... 69, 205 and no right of action passes to assignee 225 right of assignee to sue in name of assignor 226 effect of release of 228 pleadings on, same as on covenant for seisin 69 how far affected by American doctrine of estoppel 252 effect of presumption of satisfaction upon 314 measure of damages on. (See Damages, Measure of.) capacity of running with the land. (See Covenants ron Title.) operation by way of estoppel or rebutter. (See Estoppel.) RIGHTS, of parties. (See Assignee; Purchaser; Heir; etc) when joint and several. (See Joint and Several Covenants.) ROADS. (See Highways.) S. SALE, in England, vendee entitled to covenants extending back to last sale 27 not rescinded by partial failure of title 187 but purchaser recovers pro tanto 186 judicial, passes benefit of covenants which run with land . . . 213 n. SATISFACTION, of covenants, presumption of, from lapse of time 314 SEISIN, definition of 38 actual and constructive 38 " seisin and disseisin," doctrine of 38 n. necessity of livery of, how affected by statute of Uses 40 covenant for 38-65 definition of 58 a covenant for the title 40, 56 in England and some States, synonymous with covenant of right to convey 40 peculiar construction of, in other States 42 doctrine of actual seisin as sufficient to support the cove- nant 42-50 this doctrine denied in many States 44, 56 does not usually accord with intention of the parties . , . 57 supposed origin . 45 probably arose from doctrine of champerty acts . . . 47-52 700 INDEX. SEISIN — continued. Section covenant for, result of the authorities 52 effect of the doctrine 55 breach of, what constitutes 58 adverse possession 47-57 existence of paramount right 58 buildings 58 easements 59 incumbrances 59 not broken by highway 59 judgment 59 mortgage 59 right of dower 59 contingent events 60 effect of title by statute of limitations on technical breach . . 178 pleadings in action on 61-65 only necessary to negative words of covenant .... 61, 176 unnecessary to aver eviction 62 need not set forth particulars of paramount title .... 63 burden of proof 65 distinction between, and covenants for quiet enjoyment and of warranty 178 assures the title 178 in England, runs with the land 203 in most States, broken as soon as made 205 and no right of action passes to assignee 225 effect of presumption of satisfaction in such case . . 314 right of assignee to sue in name of assignor .... 226 effect of release of 228 how affected by American doctrine of estoppel . . . 179-182, 252 when satisfied by tortious seisin, no estoppel created by . . . 250 measure of damages in. (See Damages, Measure of.) capacity for running with the land. (See Covenants for Title.) operation by way of estoppel or rebutter. (See Estoppel.) SEPARATE ESTATE, conveyance of, when married women liable on covenants in . . . 307 SET-OFF, doctrine of, formed no part of the common law 323 early statutory provisions 323 particularity required in plea of 332 n. how connected with right to detain purchase money 324 SEVERAL COVENANTS, what are 304 who may sue on 315 SHERIFF'S SALE, passes benefit of covenants for title 213 n. SLAVES, warranty in sale of, not broken by Emancipation Proclamation . . 129 specific performance of sale of, when formerly decided 358 INDEX. 701 SOLICITOR, Section liability of, if covenants are insufficient or unusual 20 n. SOVEREIGNTY, acts of, no breach of covenants 129 SPECIALTY CREDITORS, rights of, in England 309 in United States 310 SPECIALTY DEBT, created by covenants for title 309 SPECIFIC PERFORMANCE, of executory contract, not decreed when title doubtful 32 of sale of slaves when formerly decreed 358 of covenants, when decreed on ground of quia timet 359 but jurisdiction exceptional 361 decreed in administration or marshalling of assets 364 and this, whether deed is or is not voluntary 364 and grantee entitled to prove as specialty creditor 304 but otherwise refused under voluntary deed 306 nor will contribution nor exoneration be decreed 367 of covenant for further assurance 98, 104, 262, 302 (See Equity.) STATE, no covenants for title required of 37 exercise of eminent domain by, no breach of covenants 129 grant by, when it creates an estoppel 251 STATUTE, conveyance in violation of, works no estoppel 252 covenants implied by, in England 282-284 in United States 285, 2S6 how far held to work an estoppel 253 liability by, of married women on their covenants 25, 308 of limitations. (See Limitations.) 308 STATUTES CITED, 20 Hen. III. c. 1 (Merton) 12 52 Hen. III. c. 16 (Marlbridge) 12 4 Ed. I. c. 6 (De Bigamis) . 4, 271 6 Ed. I. c. 3 (Gloucester) 5, 8, 238 13 Ed. I. c. 1 (De Bonis) 7 13 Ed. I. c. 18 (Westminster 2) 309 18 Ed. I. c. 1 (Quia Emptores) 6, 203 n., 271 11 Hen. VII. c. 20 (Warranties) 10, 238, 281 27 Hen. VIII. c. 10 (Uses) 13, 47, 205 n. 27 Hen. VIII. c. 16 (Inrollments) 47 31 Hen. VIII. c. 1 (Partition) 277 32 Hen. VIII. c. 9 (Pretended Titles) 47,48 29 Car. II. c. 3 (Frauds) 309 n. 3 & 4 Will. cSc Mary, c. 14 (Fraudulent Devises) 309,311 4 Anne, c. 17 (Bankruptcy) 323 4 & 5 Anne, c. 16 (Warranties) 10, 238 6 Anne, c. 35 (Implied Covenants) 2S2 702 INDEX. STATUTES CITED — continued. Section 5 Geo. I. c. 11 (Bankruptcy) 323 2 Geo. II. c. 47 (Set-off) 323 5 Geo. II. c. 30 (Bankruptcy) 323 8 Geo. II. c. 24 (Set-off) 323 46 Geo. III. c. 135 (Bankruptcy) 323 6 Geo. IV. c. 16 (Bankruptcy) 323 11 Geo. IV. c. 47 (Debts) 311 n. 1 Will. IV. c. 47 (Sugden's) 309, 311 n. 3 & 4 Will. IV. c. 27 (Real Property) 10 3 & 4 Will. IV. c. 74 (Real Property) .... 10, 20, 203 n., 306 n. 3 & 4 Will. IV. c. 104 (Real Property) 309 m., 311 n. 4 & 5 Will. IV. c. 30 (Exchange) 276 8 & 9 Vict. c. 106 (Exchange) 276 8 & 9 Vict. c. 119 (Real Property) 13,20,283 21 & 22 Vict. c. 27 (Chancery Amendment) 162 n., 355 24 & 25 Vict. c. 134 (Bankruptcy) 303 n. 25 & 26 Vict. c. 42 (Chancery Procedure) 355 36 & 37 Vict. c. 66 to 46 & 47 Vict. c. 29 (Judicature) 356 44 & 45 Vict. c. 59 and 46 & 47 Vict. c. 49 (Statute Law Revision) . 357 44 & 45 Vict. c. 47 (Conveyancing) 210, 284 45 & 46 Vict c. 75 (Married Women) 308 STREET, whether a breach of covenant against incumbrances 81 n. failure to open, when breach of covenant of warranty 153 SUIT, in equity, when breach of covenants for quiet enjoyment and of warranty 130 SURRENDER, to paramount title when an eviction 134 is at purchaser's risk 137 and requires that title be hostilely asserted 135, 149 T. TAXED COSTS, when recoverable as damages 197 TAXES, when breach of covenant against incumbrances 77 for quiet enjoyment 93 TENANT, for years, possession of, constructive seisin 38 cannot deny landlord's title 142 payment of rent by, to mortgagee, defence to landlord's claim . 142 n. when landlord's title insecure, may protect himself under paramount title 142 relation of landlord and, covenants implied from 272 (See Lease.) INDEX. 703 TENANT FOR LIFE, Section feoffment in fee by, at common law, forfeited estate .... 243 n., 254 aider of bargain and sale with warranty 254 n. TENANT IN TAIL, when covenant for further assurance by, specifically enforced . . . 362 (See Estate Tail.) TENANTS IN COMMON, covenant severally 25 conveyance by, when breach of covenant for seisin 58 partition between, when warranty implied from 277 when entitled to sue severally on covenants 315 TENURE, warranty a natural incident of 2, 237 TERM, value of, usually measure of damages on breach of covenants in lease 169 aliter in Pennsylvania 169 of years, when an incumbrance, measure of damages 191 TIMBER, right to cut, breach of covenant against incumbrances 79 TIME. (See Limitations.) TITLE, definition of 38 requisites to a complete 38 paramount, need only be substantially averred in pleading . . 63, 86, 155 when revested in grantor on payment of damages 184 recitals of, purchaser not estopped from denying 269 mere absence of, no defence at law to payment of purchase money . 330 nor ground for relief in equity 375 after-acquired. (See Estoppel.) TITLE PAPERS, production of, when required under covenant for further assurance 107 TORTIOUS ACTS, not a breach of covenants for quiet enjoyment and of warranty . . 127 exceptions 128 TORTIOUS SEISIN. (See Seisin.) TRESPASS. (See Tortious Acts.) TRUST, under voluntary deed, when enforced in equity 367 n. TRUSTEE, form of covenant by , 33 liability of, on covenants for title 36 acquisition by, of property formerly conveyed in his own right, works no estoppel 059 704 INDEX. u. UNCULTIVATED LANDS, Section owner of, deemed in possession as against wrong-doers 140 conveyance of, by deed under statute of Uses, gives constructive possession of 140 inability to obtain possession of, when constructive eviction . . . 140 USES, conveyances under statute of, when they create an estoppel. (See Estoppel.) USUAL COVENANTS. (-See Covenants for Title.) VALUE. (See Damages; Eviction; Improvements.) VENDOR, must covenant for the title 20 what covenants demandable from 20, 21 in England, covenants only against his own acts 25 or those of last purchaser 27 this practice at times recognized in United States 27 of leasehold interest, gives restricted covenants 20 fiduciary. (See Fiduciary Vendors.) when agent. (See Agent.) ministerial, no covenants required from 37 should except known incumbrances from covenants 88, 89 fraud of, cannot increase damages 159 purchaser's remedy in such case 167, 322 not concluded by consideration clause 173 may prove consideration by parol 174 right of, in some States, to compel acceptance of after-acquired title in mitigation of damages 179, 180, 247-259 when title revested in, on recovery of damages 184 when liable for purchaser's expenses in litigating title .... 197-201 formerly, generally a cestui que trust in England 203 n. liability on general covenants 213 limited covenants 213 when estate is divided 214 payment of judgment by, when bar to subsequent action .... 214 prior, limitation of liability of 215 after conveyance, can make no valid release of covenants .... 220 when competent witness for purchaser under old rule of evi- dence 221 n. in possession, deed of, passes benefit of prior covenants 233 when not liable on covenants except for his own acts 250 not estopped from asserting title acquired after disseisin of grantee and adverse possession 250 INDEX. 705 VENDOR — continued. Section nor from taking title afterwards as trustee 250 when entitled to prove purchaser's agreement to discharge incum- brances 267 acceptance of estate from, does not estop purchaser 268 unless possessed of valid title at time of transfer 268 when entitled to maintain covenant upon deed poll 272 n. liability of, as affecting rights of parties in marshalling assets 301 n., 364 effect of declaration of, that estate is free from incumbrance . . 301 n. liability of, when founded on privity of contract, transitory . . . 302 aliter, when founded on privity of estate 302 liability of, how affected by bankruptcy 303 when joint and when several 304 when a married woman 305-308 covenants of, liability of heir upon 309 at common law, did not bind devisee 311 bound executor 312 create specialty debt 309, 364 concealment and misrepresentation by, when fraudulent .... 322 rights of, under voluntary deed 364 injunction at suit of 369 when restrained from collecting unpaid purchase money .... 379 (See Covenantor; Equity; Estoppel; Purchaser.) VOLUNTARY CONVEYANCE, covenants in, when demandable 20 objection in practice 20 when enforced in equity in marshalling or administration of assets 364 for contribution or exoneration ... 367 VOLUNTARY DISPOSSESSION. (See Eviction.) VOUCHER, to warranty, writ of, when used 11, 116 effect of judgment in 11 necessary to warrantia chartce 214 TV. WANT OF ESTATE. (See Assignee.) "WARRANT AND DEFEND," meaning of 116 WARRANTIA CHARTiE, writ of, when used 11, 113, 114 effect of judgment in 11, 114 notice to warrantor necessary 214 only brought against heir 309 WARRANTIZO, creates an express warranty 3n., 271 n. 45 700 INDEX. WARRANTY, Section hi.-tory of 1-10 twofold effect of 2 assured title, as well as consequences of defective title 178 preserved lights of both parties 178 a covenant real, moulded by the courts into a covenant personal 12n., 113 implied from dedi 3, 114, 270 remedy on, same as on express 271 express, did not restrain implied 4 {See Implied Warranty.) by tenant by the curtesy 5 effect of statute of Gloucester 5 de donis 7 quia emptores 6 express, form of Qn. by tenant in tail 8 did not bind the heir without assets 8, 238 collateral, introduction of 8-10 effect of statute 11 Hen. VII. c. 20 10, 281 4 lSc 5 Anne, c. 16 10 abolition of, in England 10 application of, unsuited to America 14 but used in some early conveyances Ill n. commencing by disseisin, void 10 n. remedy upon, by warrantia chartce 12 writ of voucher 12 when employed 12 measure of damages on 12, 157 extended to incorporeal hereditaments 153 employed only when both estate transferred and paramount title were freeholds 113 how different from modern covenants " 113 vouching to 12, 116 notice to paramount title to warrantor, necessary 124 ran with the land 204 effect as a rebutter 240 required an estate to support it 254 could not enlarge an estate 254 common law requisites to 254 benefit of, descended upon heir at common law 204, 277 but not unless named 316 burden of, descended upon heir 237, 277 but not unless named 309 and had assets by descent 309 assignee could not take advantage of, unless named 318 in sale of chattels 61 covenant of 110-156 no link between it and feudal warranty 15, 110 not used in England 13, 100 principal covenant in United States 15,21,31 often takes place of covenant for quiet enjoyment . . . .21, 114 INDEX. 707 WARRANTY — continued. Section covenant of, introduction of Ill scope of 112 in effect a covenant for quiet enjoyment 114 no distinction usually taken between covenants of warranty and non-claim 115 form of, literal translation of ancient form of warranty with addition of words of covenant 21 n., 116 " defend " adds no force 110 effect of notice to covenantor of suit on paramount claim. (See Notice.) either general or limited 126 breach of 127-154 not broken by tortious disturbance 127 exceptions, — 1. acts of covenantor, his servants or agents 128 but these should not be mere trespasses 128 2. when covenant is against acts of particularly named person 128 3. when protection against all claims is intended . . . 128 nor by acts of sovereignty 129 1. eminent domain 129 2. other lawful acts 129 3. acts of sovereign tie facto 129 when by suit in equity 130 eviction necessary to constitute breach 131 (See Eviction.) pleadings in action on, less synonymous with covenant for quiet enjoyment as to this 155 breach must be set forth particularly 155 insufficient to negative words of covenant 155 except when eviction is by vendor or those claiming under him, or parties specially covenanted against 155 adverse title need not be set forth particularly 155 burden of proof is on plaintiff 156 but may be shifted 156 runs with the land 202 when barred by statute of limitations 229,314 application of American doctrine of estoppel to . . . 179-1 82, 252 (See Estoppel ) in Massachusetts, doctrine of marshalling assets depends on presence of 301 n. liability on, when discharged by bankruptcy 303 heir may sue on, without being named 316 unless breach occurred in ancestor's lifetime 317 in sale of slaves, not broken by Emancipation Proclamation . . . 129 measure of damages on. (.See Damages, Measure of ) WATER, diversion of, when breach of covenant of warranty 153 WATERCOURSE. (See Incumbrances ; Seisin.) 708 INDEX. WAT. (See Right of Way.) Section WIDOW. (See Dower.) WILL, covenants demandable from vendor claiming under ...... 27 WITNESS, vendor competent, under the old rules, only after release of covenants 221 n. unless interest was equally balanced 221 n. WOODLEAYE, breach of covenant against incumbrances 79 WORDS, of covenant, what will amount to 110 n. meaning of — " acts and means " 93 " by, from, or under " 92 concessi 270 debt 309 dedi 3, 114, 270, 275 default 94 demisi 114, 139, 270 excambium 270, 276 " good and sufficient deed " 32 " grant, bargain, and sell " 270 n. " means, title, or procurement " 95 " warrant and defend " 116 icarrantizo 3n., 271 n. "yielding and paying" 272 n. WRIT. (See Partition; Warranty.) Y. "YIELDING AND PAYING," covenants implied from 272 n. University Press, Cambridge: John Wilaon and Son. LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 834 200