Professional Documents
Culture Documents
presented to
of tbe
it
of {Toronto
PRACTICAL TREATISE
ON
THE LAW
OF
COYENANTS FOR
TITLE,
BY
BOSTON:
LITTLE, BROWN AND COMPANY
1860.
RIVERSIDE, CAMBRIDGE:
PRINTED BY
II.
O.
ties
to
up
all
the authori-
have
been
incorporated.
By
by throwing
volume.
cy,
he has re-consulted
1860.
THIS work
devoted to the
is
consideration of the
liabilities
real
As such covenants
are, in
on both
intro-
estate,
The
of the Atlantic,
sides
subject
is
in
is
language
it
al-
is
in
are expressed.
which
is
title
PREFACE.
VI
is
The
earlier settlers of
our colonies
which
may
when
left their
mother
modern system of
have had its rise at the
be said to
the
latter
part
Second,
as-
actions
out of use,
in use
and at
this time, if
scanty authority
on the
subject,
the
covenant
the
of
warranty was introduced, and seemed to hold a middle ground between the old warranty on the one
hand, and the modern covenants on the other
brought to
since,
this
throughout
latter, it
and
was
for title.
title
sei-
the coveconvey
the covenant for quiet
attributes
respective chapters, of the peculiarity .and
PREFACE.
of each
its
covenant,
to
which covenants
their
operation by
form,
Then
measure of damages.
Vll
for
way
title
estoppel
and
tent
sell,"
to
by
may
for
title,
right
give
to
the
includ-
grant,
bargain,
whether express
of a deed
title,
which covenants
or implied,
or rebutter
the doctrine
and
is
of
scope,
definition,
by
by other clauses
liabilities
and
rights
heir,
the
the
is
of the
devisee,
assignee
bound
to
covenantor
the
and
execulastly,
1852.
CONTENTS.
CHAPTER
I.
at
common
....
.......
law,
.....
........
......
2
3
Its effect,
Restrained by statute,
Remedy on warranty by
Form
Doctrine that
Its origin,
it is
satisfied
title
.11
II.
SEIZIN.
and possession,
by an actual though
to
convey,
.
.15
20
21
29
.30
21
.26
.
18
19
tortious seizin,
8
11
........
........
of the covenant,
Its definition,
CHAPTER
31
.38
CONTENTS.
.....
.
Or
Burden of
proof,
on
whom
paramount
it lies,
title,
51
.51
53
.54
54
.49
.
.
Measure of damages,
.
Ultimate measure of damages, the consideration-money and interest,
Evidence admissible to explain the true amount of the consideration,
.
Measure of damages when no consideration mentioned,
.
58
65
.69
.
only nominal damages are recoverable,
But their recovery will be a bar to a subsequent action,
veyed,
73
When
.74
........
....
title
.
76
76
...
.
75
estate con-
upon the
partial,
Partial breach does not give the right to rescind the contract,
CHAPTER
71
.71
.55
57
Damages
sion,
45
for title as
.80
88
.90
92
.93
98
III.
When
When
Its form,
for seizin,
Breach,
Pleadings and damages,
.105
.......
.
it,
105
.107
.108
108
CONTENTS.
XI
CHAPTER
IV.
.......
...
ment,
Effect of
this,
Its form,
.109
.109
right of dower,
Pleadings,
.113
.125
.
only nominal damages are recoverable,
the breach is caused by existence of a term for
119
.
Rule as to exception of known incumbrances,
Purchaser's notice does not, in general, affect his right of action,
.
.
General rules as to measure of damages,
When
112
115
Roads,
Where
Where
110
...........114
Easements,
By
128
28
.134
137
or years,
life
.134
138
.
entirely defeated the estate conveyed,
Local limitations in cases of mortgages where the right to redeem exists
142
Provided
it
after foreclosure,
covenant
Its effect
146
a mortgage, '.
.141
incumbrances,
The former
is
....
.
.
Exceptional cases upon principles of quia timet,
Or when incidental to the administration of assets,
.154
154
153
153
153
.158
conveyance,
CHAPTER
.160
V.
.......
Its definition,
Form,
.163
163
CONTENTS.
Xll
In ground-rent deeds,
When
.164
to tortious interruptions,
is
.164
165
.167
.
usually limited or
......
........
.
qualified,
.172
Damages,
CHAPTER
181
.183
180
183
VI.
........
form,
What
acts are
demandable under
it,
.185
.186
practicable,
its specific
Usual course
performance,
Pleadings,
Breach,
187
^188
185
188
188
196
.196
........
.
CHAPTER
.197
199
200
VII.
Distinction between
.204
......
....
........
.
221
222
224
nantee,
226
.240
Actual eviction,
1.
242
243
CONTENTS.
2.
3.
Where
Where
the dispossession
the possession
is
is
Xlll
by entry,
.243
voluntarily surrendered,
245
Constructive eviction,
1.
2.
By
Where
after
lord's title,
Analogy
fails
as
equity,
262
.264
268
title,
.......
....
......
.......
........
.
285
288
293
it
is,
seems, no eviction,
Review of
the cases
Pleadings,
eviction,
Measure of damages,
In some States the damages are measured by the value
.
eviction,
As
278
can be settled in
title
4.
.262
Where
260
his land-
......
towards
251
25if
title,
Suggested analogy
3.
299
305
312
308
at the time of
.314
.316.
CHAPTER
295
317
.327
VIII.
.....
No
333
334
334
XIV
CONTENTS.
Distinction
title
335
.336
But covenants
336
.....
.337
339
.341
.......
.
Their explanation,
is
based,
348
349
352
361
.....
.
Remedy
in equity,
353
360
362
.365
.367
.......
.
Mode
in
pensed with,
.369
369
dis-
371
.372
......
for
....
Its effect
CHAPTER
377
382
.
383
386
888
IX.
Anne,
894
395
XV
CONTENTS.
Effect of statute of
ranty,
Its
Anne
.
Distinction at
Ordinary
effect of
by
bargain and
.....
and
.397
.
war-
an estoppel,
under the
Subsequent
of a covenant of warranty,
an
402
.404
.
....
effect, unless
.
402
in
statute of uses,
398
402
405
by
408
409
And
to the
denied in Maine
covenant for
seizin,
.411
......
.
covenant of non-claim,
where that covenant is held to be
to the
411
414
414
satis-
.416
by the transfer of an actual seizin,
And where the after-acquired interest does not come within the covefied
........
.
nant,
And when
416
417
the generality of the covenant is restrained by the context,
.421
Reasons upon which the doctrine is capable of being based, .
Its effect, as
1.
generally applied,
2.
424
.427
.......
.......
.......
........
.
.
.
.
.
.
grantor,
Effect of application of the doctrine, in this relation
422
upon the
registry acts,
430
been based,
Their explanation,
Doctrine as recognized in Pennsylvania,
In England,
435
.441
434
447
455
a mortgage given
.
.457
.
Estoppel created by clause as to consideration-money,
Estoppel not created, in general, by the acceptance of an estate,
460
463
CONTEXTS.
XVI
CHAPTER
X.
Remedy upon
common
law,
it,
...
.467
469
partition,
.470
.
.
.
.
.
473
present day,
Suggestions that covenants for title in the creation or transfer of a free.
.
.
.474
hold are implied from words of granting,
.
.
Subsequent decisions to the contrary,
Covenants implied in creation of a leasehold from the words of
.475
.........
.
ing,
.
.
Effect of such implied covenants,
Question as to what covenant is implied from the
lord
...
and tenant,
mere
relation of land.
.479
The
When
When
484
488
485
483
.
490
one,
When
When
........
.......
........
.
ent natures,
Covenant
for quantity of
covenants for
land conveyed
is
title,
interest,
Recent enactments
Statute of
And
Anne
copied in
in
sell,
England,
.....
.....
many
518
519
521
493
.512
476
.478
leas-
525
580
533
533
535
.537
524
542
CONTENTS.
CHAPTER
WHAT COVENANTS FOR
XI.
........
........
to
to his
own
549
551
.552
.
.
mortgages and leases,
in
States
the
rules
established
United
precise
upon
subjects of proper
Except
No
XV11
in cases of
or usual covenants,
554
The absence
556
...
sale,
.559
Cases which decide that a contract to convey by " a sufficient deed "
referred to the validity of the conveyance and not to the title, .
Power of
title,
When
sale given to
CHAPTER
570
571
.573
XII.
by bankruptcy,
b*
.574
567
BY,
How
566
que
cestui
selves,
No
.562
559
.561
incumber,
But covenants
trusts,
.......
........
.........
........
no act
.574
in a fine,
577
.578
578
CONTENTS.
XV111
But
in
........
.
.579
nantor,
587
581
.586
.587
... ....
.
Its imperfection,
Subsequent
legislation in
England,
589
590
591
Not bound,
at
common
law,
How
subsequently altered,
testator,
testator
596
....
.....
......
........
......
.....
.
598
599
599
598
come
.......
......
the covenantor,
Liability of the assignee,
595
.597
....
Where
594
.594
.....
by debts of his
600
601
601
602
602
602
602
603
in the
Exchequer,
603
604
605
607
These are
...
....
.......
608
609
610
CONTENTS.
CHAPTER
XIX
XIII.
Distinction
tory
.613
In the absence of covenants, the purchaser can neither detain nor reclaim his purchase-money,
.
.
.613
.
Exception
.'
What
constitutes fraud,
obligat,
616
.619
.620
.621
.616
.
615
623
......
demand,
suit to the
.
How
636
subject-matter of
.
636
636
637
Recoupment,
But the principle
Common-law
is
rule
637
.638
638
specialty,
How
.639
What
......
.
Mere absence
of
title
Or
is
amount paid
to
641
644
title,
646
672
673
XX
CONTENTS.
In general, no grounds for its exercise exist, unless where the purchaser has a present right to damages upon his covenants,
.
Its exercise where such is the case,
.....
677
686
.690
.
.
.
.
Statutory provisions in Missouri,
Quiet timet jurisdiction in cases of insolvency or non-residence of the
........
........
......
....
covenantor,
But these
paramount
Cases where
title,
all
title
.693
The
691
696
this con-
700
705
706
703
.....
The
Purchaser
less
may defend by
he was
to
title,
unknown,
is
2.
.713
and an incumbrance,
Where
is
brance,
conveyance,
But where
the covenant
is
broken, he
sideration,
the defence
is
is
724
725
defect or incum-
his
733
knowledge
may defend
demand and
Where
same
723
.727
known
a covenant against a
and the
.......
.......
.....
.......
.
arises,
there
721
723
714
715
3.
707
in the
735
himself to the
738
form of an annual
740
may
set-off,
.741
and
But where
L>
XX11
Page
Barrow
v.
Bartlett
Barton
561
380
508, 509
Bispham
Pearson
v.
v.
Fitzgerald
v.
Morris
Bartram u. Whichcote
Bashore v. Whisler
Basten v. Butter
Batchelder
Bates
v.
v.
Delavan
v.
Norcross
Bird
713
Birney
Batterman v. Pierce
Baxter v. Bradbury 22,
683
399
638, 649
80, 81, 88, 89,
359,478,482
Ryerss
Bayard v. McLane
Beach v. Packard
Beale
v.
Steele
v.
Waddell
v.
Beall
v.
Bean
v.
684,
614, 682,
Seiveley
Taylor
Herrick
v.
Mayo
v.
Welsh
Bearce
35, 36
524, 626,
113,
412,423
Jackson
v.
Beardsley
v.
Beauchamp
21
312, 387
Knight
v.
66
561
685
684
587
627
134
93
Damory
Beebe
Swartwout
v.
260,465, 685,691
725
38,40
v.
Seymour 67, 68, 524, 572
Bell v. Henderson
623
v.
220
Higgins
v.
410, 418
Twilight
Bellas o. McCarthy
444, 594
Beidelman v. Foulk
Belden v. Pitkins
Bender
v.
Fromberger
v.
Bensley
Benson
Bri-gin
Burdon
Benson
McFarland
Union Bank
588
594
v.
v.
Bette
v.
Be vis
v.
Bickford
66
278
Smith
v.
12. >,
:!!_',
345, 353
Bigulow
v.
Finch
268
315
703
Weiderwax
v.
Bingham
412
471
637, 650
127, 130, 136,
137, 138
Sturgis
Page
Bigelow v. Jones
Biggus v. Bradly
Haim
v.
Birtwhistle
v.
576
43
563
316
59, 123
432
521
476,478
426
369
673
131
Vardill
Biscoe
v.
Perkins
Bissell
v.
Bitner
Bivins
v.
Erwin
Brough
Vinzant
Barton
v. Gilmore
Blackmore v. Shelby
Black
v.
v.
Blackwell
Nash
Blair v. Claxton
.
Duncan
t>.
Rankin
Blake v. Buchanan
v. Tucker
Blakely v. Grant
124,478
380
412
v.
Blanchard
v.
426
54,381,602
Smith
v.
78, 96,
311
Brooks 410,412,419,
420,526, 529, 530
W.Ellis
77,87,146,427
t\Hoxie54,55,90,92, 182
233
Blasdale v. Babcock
Blatchford
w.
The Mayor
mouth
of Ply1
75
35
Bledsoe v. Rodgers
Blicke v. Dymoke
198, 199
268
Blight's Lessee v. Rochester
377
Blin v. Pierce
480
321
Blydenburgh v. Cotheal 219, 247, 342
566
Brackenridge v. Dawson
Bradburne v. Botfield
604, 605
Bloss
v.
Kittridge
Blossom
v.
B radford
Knox
157
737
621
Bradley v. Chase
154
v. Commissioners
485
Bragg v. Wiseman
Brandt v. Foster 614, 638, 673, 676
557
Bodley v. McCord
411,446
Bogyv. Shoabs
461
Holies v. Beach
66
Bolton r. Johns
146
Bond w. Bond
233
Bond's Adinrs. v. Ward
w.
Long
w.
Potts
Booker
w.
Bool
Mix
v.
Eyre
v.
Boon us
Booth
r.
Bell
Starr
52
657
154, 243, 350, 854,
XX111
Page
Boothby r. Hathaway
Bordeaux v. Cave
Bottorf v. Smith
Boulney v. Curteys
"
Bowcn v. Tin-all
Bowman v. Taylor
v. Wat ham
Buckley
339
188
558, 687, 691
Buell
78,
407,456
35
588
592
593
706
227, 229
Bowyer v. Rivitt
Boyd v. Armstrong
v.
Berrell
r.
Hopst
Whitfield
v.
Breck
v.
21
Young
35,40, 43
Breckenridge v. Moore
Bree v. Hoi beck
614, 617, 707
Brewster v. Kitchell
335
Briee v. Brice
627
Brick 11. Coster
166, 717
420
Brigham v. Smith
Bright v. Boyd
320, 325
35
Brinley v. Whiting
Britton v. Turner
637
Brock v. Southwick
648, 661
612
Brocksopp v. Lucas
Brooks v. Fowle
584
v.
Moody
138
499, 500
Broughton v. Conway
Brown v. Brodhead
v.
Brown
Cannon
v.
Dickerson
r.
v.
v.
Page
22
702, 705, 706
138
491, 520
561
v.
Williams
Tate
v.
v.
Bulkley v. Landon
Bull v. Willard
v. Wiott
Bullard
v.
Gammon
Hay wood
560
474
419
413,443
v.
Jackson
McCormick
v.
r.
Starke
Burbank
v.
561
v.
Storey
Taylor
266
226, 228, 230
548
Tomlinson
Browne v. Potter
Browning v. Wright,
463
17, 182, 474,
Brunnel
v.
Jackson
626
90
685
85
602
235
Buck
v.
Habcock
v.
Bininger
Buckets
Gould
Hubbard
Burgh v. Legge
Burhans v. Vansant
Burke v. Green
Burnet v. Jenkins
Burchard
v.
v.
Burnett
Burns
?;.
v.
Burrell
311
284
32
101
479
255
275
571
Lynch
Montgomery
Wilkinson
Jones
v.
Burroughs v. McNeil
Burton v. Schermerhorn
v. Stewart
Burwell v. Jackson
562, 612,
155
674
653
614
129
Busby v. Littlefield
Bush v. Bradley
256
v. Cooper
136, 413, 545, 577
v. Keller
584
Butler v. Gale
119, 129
v. Miller
614
v. Swinerton
179, 180
Butman v. Hussey
614
65, 70
Byrnes v. Rich
C.
Cadman
Horner
v. Henderson
Caldwell v. Bower
v.
v.
Mouzon
Buckingham's Lessee
v.
Hanna, 421,
423,427
612
706
290
Kirkpatrick 201, 219, 255
Caines' Lessee
460
v.
Briggs
Platner
v.
Burnpus
v.
v.
587
182
660
380
613
413
66, 67
676, 695
66
421
Nightingale
v.
171
158, 177, 526,
532, 552
v.
Whittingham
Canaan y. Turnpike Co.
Cane v. Allen
Campbell
626
74
138
41
Capenhurst v. Capenhurst
Careswell v. Vaughan
220
Carleton v. Tyler
578
Carlisle v. Blamire
360
Carnahan v. Hall
715
560
Carpenter v. Baily
v. Parker
178
v. Schermerhorn 434, 580
Carr v. Roach
613, 614
v. Roberts
153
XXIV
Page
Goddin
Godley
Carson
Carter
v.
479
702, 705, 706
Carter
v.
35
v.
Carrington
Denman
110,112,124,
125, 126, 313, 342, 352
Flower
311
604
Carthrae v. Browne
407
Carver v. Astor
v. Jackson
490
v.
Gary
Case
v.
Broughton
Leavenworth
v.
Churchill
v.
Hall
Allen
Clanrickard v. Sidney
Clapp v. Coble
Clark
66
v.
Baird
v.
Carrington
Cleghorn
v.
v.
v.
v.
Redman
Parr
1 73
Cavan v. Pultney
167
Cave v. Brookesby
360
Cavis v. MoClary
135
Chace v. Hinman
v. Weston 354,359,367,661
35
Chairs v. Hobson
265
Chambers r. Pleak
v.
v.
Perry
Scudder
v.
Seirer
v.
Smith
v.
Snelling
Swift
621
220
674
Chandler v. Marsh
Chandelor v. Lopus
629, 638
21, 138, 144, 145
Chapel v. Bull
661
Chaplain v. Briscoe
171
v. Southgate
v.
Holmes
v.
Robertson
v.
Hansbury
Chastaine
Chauvin
Johnson
v.
Chapman
Charnley
Laytin
v.
Champness
Staten
342
43
432
566
Wagner
v.
v.
434
484
Cheiny v. Langley
683
Chesterman v. Gardiner
Chcsnut Hill Reservoir Co. v. Chase
380
Chew v. Barnet
422, 442, 444
City of Hartford
Starke
Cholmondeley v. Clinton
Christine v. (Jotwalt
Chipman
v.
Cliisliolme
v.
581
154
82
v.
Clarke
v.
Faux
v.
Samson
v.
Me Gee
68
Colcord v. Swan
Coldcot v. Hill
Cole v. Alberts
433, 580
r.
Coger
66
671
v. Lee
224, 273, 280, 292, 526
155
v. Sims
284
Coleman v. Coleman
684
v. Rowe
Coles
y.
Collier
v. Shenim
Kinder
y.
Gamble
n-
v.
Blantern
730, 738
r.
Church
v.
Brown
477,549,551
v.
Crouch
Evans
()li\
522
Justice
v.
ll'-yiiolds
r.
576
123
342
660
602
612
474
256
684
612
479
251
148
564
561
264
243
411
34
v. Courtney
Burges
Clermont v. Tasburgh
Cloak v. Harper
Cloake v. Hooper
Clowes v. Dickinson
Clows v. Higginson
Clute v. Robinson
560,
Cobb v. Arnold
263,
Coble v. Wellborn
180,
Cocke v. Brogan
Cockell v. Taylor
420
Coe v. Persons Unknown
v. Talcott
572
Clanton
r.
hill-hill
Clarke's Lessee
Christy
Christinas
63,94,113,125,320
113,125,134
489
475, 524
403
v.
31,48,54,67,
McAnulty
r.
v. Smith
342, 547, 602
580
v. Spence
734
Chamberlain r. McLurg
155
Champion v. Brown
675
Champlin v. Dotson
624
233
692
682
368
Hardgrove
Johnson
v.
Harris
v.
267,283
v. Tirrell
93
Hurlbut
v.
Caulkins
154
66
3, 545
495, 526
v.
Catlin
74
Hunt
v.
Clagget
Clanch
115
639
63, 315
154
114
Daniels
v.
Page
Church
Collingwood
Collins
v.
Irwin
23, 79,
578
197
377, 547
40, 639
601
621
XXV
Page
Page
Collins
v.
463
Torry
Colvin v. Schcll
Colwell v. Hamilton
Combes v. Fisher
Combs
Tarlton's
y.
v.
Comings
560, 718
295
97
Admr.
Little,
604
Commissioner in Equity
v.
Pear705
son
McClanachan 614
27
Comstock
Commonwealth
Comstoek
v.
v.
Connor v. Eddy
Cook v. Field
460, 661
34
Mix
v.
642, 648
Founds
v. Loxley
Cooley v. Rankin
Cooper v. Denne
v. Granberry
Cooke
v.
532
263
685
563
368
229
648
226, 308
132
437, 527
369
17, 20,
In re
v.
v.
Singleton
v,
Watson
Copeland v. Copeland
Corbin v. Healy
Cordwent v. Hunt
Cornell
v.
Jackson,
v.
Cotton
v.
Cowan
r.
Ward
v.
Cox
v.
v.
Crowninshicld y. Robinson
Crutcher v. Stump
Camming v. Gumming
Cummins y. Kennedy
Cunningham
Lyles
415
v. Deering 167, 254, 301, 667
v. Hutton
43
v.
355
Spitty
Cushman r. Blanchard
21, 30, 315
Cutler v. Bower
657
Cutter v. Davenport
43
v. Powell
638
Curtis
v.
Curtis
D.
Pullen
Rosevelt
v.
Dalby
Dale
t-.
v. Crawford
Danforth v. Streeter
Daniel v. Mitchell
Dart y. Dart
Dalzell
Davenport v. Bartlett
Davie v. Sacheverell
Davies v. Churchman
Davis v. Atkins
Darrows
Keller
v.
Logan
589
v.
Lyman
v.
McVickers
Sims
Woodward
612,614,552
v.
v.
v.
v.
622
v.
367, 377
v.
154
Smith
Tarwater
Wil bourne
Pepys
Davy y.
Dawson y. Dyer
Day y. Brown
Chism
Nix
Deakins
v.
Hollis
612
621
563
35
621
410
273
170
588
524
463
412
236,274, 700
v.
Miller
629
Fithian
v.
v.
v.
Curry
576
63, 65, 255
v.
320, 613
614
320
717
519
35, 555
637
219
717
y. Motzer
Cullum v. The Branch Bank at
Mobile
668, 672, 692
46
Cully v. Doe
369
Cumber y. Wane
Culler
v.
Cripps v. Reade
Crittenden v. Craig
Crooker v. Jewell
v.
167, 169
215, 479
Fowle
v.
Craddock v.
Craig v. Hopkins
v. Martin
Crawford v. Murphy
Cray ford y. Cray ford
Crookhey
377
v.
74
King
u.
Co. 686,
688, 690
Crouch
362,457,460
Henry
Cresson
167
573
83, 84
Shields
Silliman
Cox's Heirs
423, 517
51
Cross y. Robinson
Crosse y. Young
374,497
612,674
589, 623
166, 321,323
186, 548
226, 231, 233
587, 588, 589
164
542, 573
252, 311
637
476
XXVI
Page
Dearborn y. Cross
Dearth v. Williamson
Decharms v. Horwood
Decker y. Caskey
369
560
606
407
484
Deering y. Farrington
DeForrest y. Leete
1 25, 1 2
Delavergne v. Norris 134, 135, 138
407
Den y. Brewer
v. Desmarest
434, 580
437
y. Forsyth
v.
Geiger
41
v.
Young
437
Dennis
v.
Denny
y.
Denston
Morris
y. Brown
Derby v. Jones
Desha y. Robinson
Devorn v. Johnson
Dexter y. Mauley
683
720
420
638
237
Dentler
479
Nelson
Dickens
y.
Dickerson
Dickinson
Shepperd
v.
Talbot
Hall
y.
v.
v.
Dickson
r.
Oliver
v.
Potts
v.
Prestwidge
407
452
404
263
562
476
403
437
420, 434, 580
623
v.
Scarborough
y.
Smythe
v.
v.
Stanion
Prince
v.
Jones
Whitehead
Dominick v. Michael
r.
Donelson v. Weakley
Donnell v. Thompson 69,
Heath
v.
v.
Page
Doe
35
Donohoe
328
675
638
154
Dorsey v. Dashill
v. Jackman
706, 710, 717
412
Doswell v. Buchanan
355
Dougherty v. Duvall's Heirs
601
Doughty v. Bowman
Dorchester
y.
Dimmick
v.
Douglass
Dow
91
Doyle
Drew
673
Dix
v.
Coppin
Lockwood
161
School District
v. Willcutt
661
y.
Evans
Hays
v.
Hull
v.
Lynes
Martyn
v.
34
43
46
16
35, 46
427,428,431
469
614
Knapp
v.
Lord Norbury
v. Towle
96,
v.
452
99, 101, 247,
661
Drinker
725, 727
219, 315
Drury v. Shumway
Duchess of Kingston's case 267, 268,
Dudley
416
Dobbins y. Brown 117,216,291,295,
299, 305
Dobel v. Stevens
625
Dodd v. Seymour
561, 569
Dodds y. Toner
673
637
Dodge v. Tileston
Dodswell y. Buchanan
410
265
Doe v. Barton
y. Cassiday
369
d. Christmas y. Oliver
404
v. Errington
456
y.
Scott
141, 142
Doane
Coventry
Lewis
v.
412,427
v.
v.
Doremus v. Bond
Dorr y. Fisher
v.
Byers
v.
394,410,424, 436,
457, 465
Cod well
412, 427
y.
Folliott
547
Dillon
Emery
v.
Duffield
v.
Dummer
y.
Scott
Birch
166, 169
227, 233, 238, 239
125
663
Lane
734
v. McCullough
Dunklee y. The Wilton Railroad
Duncan
y.
Co.
114,115
108
377
Dunn v. Snell
v. White
129,132,668,670
Dunseth y. The Bank of the U. S. 328
249, 273
Dupuy y. Roebuck
66
]>u\;il r. Bibb
Dunnica
y.
v.
Sharp
E.
Page
Farnsworth
Fairer
O wen
v.
Eardley
Karl of Bath
v.
589
614
Earle
Middleton
v.
v.
318,319
626, 627
Early v. Garrett
345
Eastabrook r. Hapgood
v. Smith
69, 114, 273,
504
Eastman v. Wright
377
560
Eby o. Eby
Eccleston y. Clipsam
604
575
Eddy v. Travcrs
Edwards v. Applebee
190
v. Bodine
679, 683
v. Brown
651
616, 619, 631
v.
McLeay
v.
Morris
684
y.
Roys
Varick
41
410, 411
90, 94
141, 145, 148
118
v.
Ela v. Card
Elder v. True
Elland v. Llandaff
Elliot
v.
Elliott
568
369
637
319, 684
Merrymau
Boren
Heath
v.
v.
o.
Thompson
Nimnio
Ellis v.
160, 161
Welch
y.
167,272,417
Ennis
Leach
v.
Eshelhnan's Lessee
Espy v. Anderson
Evans v. Dendy
Elliot
v.
v.
Sanders
v.
Vaughan
Evcleth
Everson
Crouch
v.
v.
Kirtland
Everts
v.
Brown
Ewins
v.
Calhoun
Exall
v.
Okisko Co. 66
622
566
Hoke
398
555
702
266
578
177, 183
462
560
223
v.
Benedict
v.
English
v.
621
291
Partridge
v.
Nightingal
Farrington v. Barr
Farrow
220, 542
701, 703
Mays
y.
Fausset y. Cafrpenter
447, 452
471
Feather v. Strohoecker
Feemster y. May
561, 663, 674
589
Fergus y. Gore
489, 524
Ferguson y. Dent
227
Ferrell v. Alder
Ferris y. Harshea
236, 247
Field y. Snell
349, 368, 372, 581
Fielder v. Studley
522
Fields y. Hunter
227, 236, 237
477
Finley y. Simpson
Finn y. Sleight
464
Fisher y. Salmon
673
y. Worrall
154
Fitch o. Baldwin
48, 77, 465
y.
114, 458
Seymour
Fite y. Doe
35
266
Fitzgerald y. Beebe
y.
Fitzhugh
Croghan
195
223, 224,
382, 412, 414, 456
Farley
v.
Clark
Briant
v.
614
590, 597, 598
Fletcher
Flight
y.
Floom
y.
y.
Harrison
Button
Cook
Beard
Flureau y. Thornhill
Fly nn y. Williams
Foley y. Addenbrooke
Cowjrill
y.
Folliard
Foord
Wallace
Wilson
Burnet 22,
y.
y.
Foote
407, 420
369
557
561
155
54
59
400, 401
604
623
166
493, 498
y.
29, 71, 127, 135,
140, 211, 213, 220, 272, 320, 340
Ford
Walsworth
y.
Forster
368
Fuller
571
Forster's Exrs. y. Gillani
555, 730
Foss y. Stickney
77, 146
Foster y. Mapes
170
y. Pierson
126, 182, 243
y.
Woods
132
Fowle y. Welsh
Fowler y. Poling
y.
y.
Falconer
02
66
v.
F.
Fain v. Ayers
Fairbanks e. Williamson
637
Garrard
Farrisy Smith
Earl of Bradford
589, 599
Earle
'
XXVII
Fox
Shearer
Mackreth
Mensch
r.
Widgery
Franc-hot v. Leach
y.
y.
Franciscus
y.
Reigart
70
390, 690
433, 580. 642
623, 627
714
410, 416
651
740, 742
XXV111
Page
Page
Frank
642
265
Vinson
v.
Franklin
Carter
Frazer v. Skey
v. Tunis
Frazier v. Harvie
v.
Freeman
182,479
588
v.
Lomas
311
636
v.
Thayer
410
100
French
v.
Parish
Friedly
v.
Scheetz
Gazeley v. Price
Gee y. Pharr
Gennings v. Norton
Geyer y. Girard
Ghegan v. Young
Gibbs y. Thayer
411,460
477
223, 412
Gervis
v.
Gibson
410, 411
Frisbee v. Hoffnagle
646, 648, 650,
652, 656, 660, 668, C72
410
Frisby v. Ballance
593
Fritz v. Evans
Gilbert
Cresswell
v.
Darst
v.
Frontin v. Small
Frost v. Earnest
41,484
166, 182
Raymond
Fuhrman v. Loudon
v.
.Fuller
Hubbard
v.
v.
Funk
475,477, 614
722, 726, 735
569
122, 123
Wright
v.
Cresswell
v.
Newcomer
v.
Voneida
548
412
26, 127, 128, 130,
Furman
v.
Elmore
Furness
v.
Williams
703
465, 656
Gainsford
Gillam
y.
Gale
562
499
588
Gale
v.
Reed
Galton y. Hancock
Gamble v. Collier
Gannard v. Esvala
Gans v. Renshaw
v.
Gardiner
Garfield
v.
v.
Niles
Williams
Garlock v. Closs
Garrard v. Lantz
Garret v. Stuart
Garrett v. Cresson
Garrison v. Moore
v.
JSandford
Gartman v. Jones
Gaunt v. Wain man
Gay v. Hancock
Gayle
v,
Prk-u
Briggs
Gillett v.
Ripon
Gilman v. Haven
Ginn y. Hancock
Glasscock r. Minor
Glenn y. Thistle
Glinnister v. Audley
Godley v. Taylor
Godson y. Smith
Good
y.
589
110,154
342
388
23, 74,
720
66
721
741, 742
342
684
4C3
682
463
460
51, 113
629
665
53
572, 594
74
Good
741, 742
104, 732
Mylin
Goodill y. Brigham
Goodwin
y.
y.
Alker
Bailey
y.
Morgan
y.
Morse
Morse
y.
Gough
v.
v.
442
51
404, 407
404, 406
404
638
233
422
Taylor
Gordon y. Beacham
Gore y. Brazier 150,
Goucher
16
Beacham
y.
y.
106
Forester
y.
Goodright
73
612, 619, 718
229
135
559, 561
92, 114, 136
589
715
701
99
y.
Bank
v.
Buie
y.
Dugro
v. Roe
Gilkeson y. Snyder
Goodtitle
of Georgetown 103
Griffith
491, 500, 548
Wiman
y.
G.
v.
Turnpike Co.
y.
Gilchrist
Giles
619, 629
155, 191
D'Este
Goldsmid
v.
v.
569
Colt
v.
y.
Goodson
Gadsden
101
Putney
Peade
y.
George
573, 712,713,
723
242, 251
Frink
Helmbold
Bell
v. St.
Governeur
John
Elmendorf
v.
715
412
622
614, 683,
695
592
Smith
103, 228
Gragg v. Richardson
265
Graham y. Alsopp
v. Tankerly
226, 237
480, 483
Granger y. Collins
(l.-annisy. Clark
215,312,469,477,
479
Grantland v. Wight
566, 682
Gratz y. Ewalt
540, 541, 544,545
Graff
y.
XXIX
Page
Graves
v.
Leathers
Briscoe
v.
Cox
Gray
40,43
20, 48, 89, 98
650
v.
Handkinson
Great Falls Co. v. Worster
v.
1 7
Scott
Biddle
674
320, 325
693
154
386
684
320
r.
Given
r.
v.
v.
Campbell
Handkinson
v.
James
v.
McDonald
v.
Winter
Greenby
439
Mayo
v.
Gregory
701, 704
Wilcocks
v.
Cook
Greenleaf
o.
Greeno
v. Queen
Munson
648,649,650,
663
684
265
Davis 67, 219, 243, 246,
247, 248, 257, 370
Greenwood v. Ligon
123, 561
v. Tiber
579
Greer v. Tenant
328
Grenelife's Exrs. v.
168, 204
Grice v. Scarborough 110, 125, 128,
v.
Greenvault
v.
129, 130,132
Grillin
v.
o.
Chaffee
Dean
Fail-brother
Middleton
llalsey
v.
Reed
Ham
Storer
342
JIulley's Heirs v. Birchetts 158, 160,
247, 273, 319
Hagler r. Simpson
18, 243, 249
Hains r. Gardner
Haire e. Baker
Hale v. James
463
127, 129, 143
328, 329
c*
196
152
410, 414
of Cumberland 463
75,
Ham
v.
Hamblin
Bank
v.
Hamilton
v.
v.
Wilson
v.
Hammatt
r.
Haraond
Hancock
v.
v.
Hannah
v.
Hanson
v.
Ilarlovv
v.
86,
342
263
Marsden
Emerson
621, 622
Hamilton's Lessee
r.
Hill
173
Carlton
460
Henderson
275, 309
Buckner's Exrs. 236, 237,
247, 321
Hardy v. Nelson 100, 101, 315, 460
355
Hare v. Cator
Thomas
v.
Morris
v.
v.
Newell
Parker
74
67
v.
Ransom
v.
Morris
Burgh
v.
Harper
Jeffries
v.
Harrington
v.
v.
Harris
412
477
715,718
34
638
369
614
Harmer's Lessee
Long
Stratton
Goodwyn
v.
v.
Tyson
Harrold v. Whitaker
Hart v. Baylor
64,
684
627
606
98, 715, 718,
724
v.
Porter's Exrs.
v.
Thompson
Hartley v. McAnulty
Harvey
v.
Alexander
v.
Doe
Hastings
Hatch
v.
Welborn
Cobb
v.
Hawkes
v.
Orton
lay den
v.
Mentzer
Hayes
v.
v.
21, 219,
H.
ftp
420
Ilallett
Hacker
r.
v.
Tucker
641
359
v.
92, 580
Reynolds
Griffith v. Kempshall
612, 626, 683
Grimes o Redmond
470, 526
v. Shrieve
320
Grist v. Hodges
243, 253, 342, 609
Griswold v. Allen
114, 294
v.
592, 596
Bigelow
Giierard's Kxrs. v. Rivers
62, 318
Guild o. Guild
102
Guion v. Knapp
575
66
Giillcy v. Grubbs
(iuihrie v. Pulley
89, 93
Gwymi v. Thomas
187, 199
Gridley
Hall
v.
Haynes
Bickerstaff
v.
v.
v.
587
66
66
41
48
686
252, 310
66
47, 164, 165,
182
592
Colvin
Stevens 100, 101, 458, 459
119
Young
622
Irwin
Hazard v.
Heath v. Newman
v.
710, 711
Whidden
663,667
342,381,602,
603
XXX
Page
Hedges
y.
Hellier
y.
Kerr
Gaspard
Helps v. Hereford
Henderson v. Hay
v. Henderson
v.
Overtoil
0.
Vaux
Turner
Henning v. Withers
Herbert v. Ford
Heron v. Trey ne
Herrick v. Moore
Herrin v. McEntyre
Hersey v. Turbett
Hertzog v. Hertzog
Hervey v. Audland
Hesom v. Smyth
Henniker
Hesse
Hext
v.
r.
v.
Stevenson
Butler
Denio
Hobart
v.
v.
Lee
Hopkinson v. Lee
Hopper v. Lutkins
Horback v. Gray
606
318
637, 643, 660
196
119, 134
739
323
160, 161, 589
674
491,517,523,
548
706
380
611
661
623
560
552, 553, 562, 569
Ressegieu
v. Varrell
Hill's Lessee v. West
Hinde v. Gray
Hingen v. Payn
Holmes
Homer
Hooker
Headington
v.
Criswell
v.
Johnson
v.
v.
v.
Sinnickson
Purser
Folsom
Howe
Wright
v. Lewis
v.
Bass
v.
Walker
Howell
Howes
Richards
17, 19, 48, 163,
165, 501, 505, 506, 507, 548
Barker
v.
161
612
1 73, 1 74
Brushfield
Taliaferro 236, 247, 648, 661,
663, 665, 667
v.
Hoy
v.
Dimon
Thompson
Hubbard u. Althorp
Hoyt
412
32
530
v.
i".
v.
Norton
Bennet
Hulse v. White
Humphrey Phinney
Hughes
v.
Hunt
Amidon
v.
460
520
319
329
Hupp
v.
Kurd
v.
Cushing
245
171
625
370
34
701, 704
570
561
597
584
476, 524
696
437, 527
v.
Fletcher
176,177
v.
553
40, 44
101, 103, 319
671
660, 661
59
321
604, 605
686, 688
735
43
314
612
601
479
661
524
131
u.
v.
284
438
Holeridge r. Gillespie
Holland v. Jackson
t.
Nichols
v.
Hovey v. Newton
Howard v. Doolittle
v. Witham
311
480
Hogins v. Plympton
Holden v. Pike
148
Holder v. Taylor 215, 251, 253, 479
Holman
v.
Houghtaling
433
479
199
Hitchcock v. Giddings
621
v.
463
Harrington
Hitchens v. Lander
34
683
Hoag v. Rathbun
Hobein v. Drewell
673
Hobson v. Middleton
112, 567
702
Hodges v. Connor
v. Saunders
566, 613
Hodgson v. The East India Co. 182
154
Hogan's Exr. v. Calvert
Holloway
Horsford
66
589
158, 159
Grazebrook
v.
v.
Higginbottom v. Cornwall
Higgins v. Johnson
v.
476
403, 404
554
422
154
Morgan
v.
Hopkins
Hickey v. Burt
Hierny. Mill
Higdon v. Thomas
Hill
Page
557, 570
Cope
Danvers
Moore
Orwig
v.
v.
Hunter
v.
Daniel
v.
Graham
v.
Jameson
v.
O'Neil
Hunting v. Sheldrake
Huntingdon r. Grantland
Huntly r. Waddell
Hurn
Hupp
66
649
113
Hutching v. Moody
592
Hutchinson v. Stiles
553, 569
Hyatt y. Seeley
Hyde v. Dean of Windsor 221, 485
v.
Soper
Hussams
v.
Dampier
Iggulden
v.
May
477,493
XXXI
XXXll
Page
McCartney
v.
Newman
412, 420
56
v.
Skeer
407, 443
Kennedy
Kent
v.
y.
Allen
v.
Welch
612
469
436
Kercheval v. Triplett
v. Kitchen
Kerr
Shaw
v.
Kerrison
Lassels
Key y. Henson
Morgan
Lathrop y. Atwood
AVest
Stoddart
627
Lawrence
Blaisdell
Kimpton y. Walker
King y. Gunnison
Kidder
y.
Kidney
y.
Kimball
y.
v.Jones
v.
Norman
v.
Pyle
Kingman
y.
y.
Senter
Stonington
714
Lawry v. Williams
Lea v. Dean
Leary y. Durham 201,
188,194,198,200,
237
65, 92, 320
464
101
493
302
McCullough
Watts
319, 322,478
Kinsman r. Loomis
410
*
y. Brigham
233
Kip
182
Kirby r. Hansaker
v.
Knapp
Mitchell
y.
Marlboro
y.
Lee
21,
Koger
Kortz
y.
y.
558
477
642,661,672,673
Knickerbacker y. Hillmore
Knight y. Turner
Knox y. Jenks
Kane
Carpenter
526
671
34
Leavitt
y.
y.
y.
Dean
v.
Foard
v.
Rook
Leffingwell
Fidgeon
Simpson
Lamerson y. Marvin
y.
Legh
y.
658
561
155
101, 134, 280
631
679, 683, 684
377, 380
68, 92
674
Elliot
y.
McCarty
Legh
Leggett
y.
Leland y. Stone
Leonard y. Bates
Le Ray de Chaumont
Lethbridge y. Mytton
Lewen v. Stone
Lewis y. Baird
369
647
40
Croker
y.
Legge
Forsyth 354,
359
153, 154, 350
154
420, 422
183, 314, 384
352, 391
Campbell
v.
v.
Cook
Hudson
v.
Jones
v.
v.
Lewis
Morton
Peake
v.
Ridjre
y.
Smith
y.
Willis
166
263
128
62, 318
576
y.
y.
Lienow
Lighty
v.
y.
y.
Levit
Liber
Laing
226, 233
Poulteney
Savage
Lamar
Ledger i\ Ewer
Lee y. Colehill
682
650
407
Bank
560
368
674
412
640
275
Leather
Kruse y. Scripps
524
Kunckle y. Wynick
477
Kyle's Admr. y. Fauntleroy's Admr.
y.
79
v.
Sparrow
y.
Gamble
y.
477
v.
Kirkendall
y.
223, 4 1 2
Kingsberry y. Smith
Kingston y. Preston
Kinney
y.
Dole
y.
Kingdon
Lattin
y.
v.
154
661
647, 651
Collier 71, 78, 94, 96, 377
Snell
Vail
y.
Lawless
Cureton
y.
197
684, 694
y.
661
701
181
Kibler
478
G04
369
242, 243
524
Catterton
y.
Latham
40
Cole
v.
Page
Landydale y. Cheyney
Lane y. Drink water
Langworthy y. Smith
Lansing y. Van Alstyne
Large y. Penn
154
51
51, 275
685
99
Witherington
Parsons
y.
y.
Ellis
Shorb
XXX111
Page
Page
Linderman v. Berg
Line v. Stephenson
Linn
2-27
Lyde
y.
Mynn
Lytle
y.
The
Barkey
v.
Linsey y. Ramsey
Lisk v. Woodruff
Little
v.
Bishop
Paddleford
v.
Littlefield
v.
v.
Livingston
v.
Lloyd
v.
Quimby
Lockridge
v.
v.
Lomas
Foster
Sturdevant 27, 90, 364,
v.
Moore
v.
Moulder
v.
Steel
v.
Wright
Loomis
552
167, 169
622
622, 629
v.
Lock wood
Logan
191, 453
128, 145, 146, 365,
Tomkies
Baker
v.
Lobdell
41
41
v. Proseus
Jewell
641, 742, 643, 648,
661, 673
v.
Lloyd
Getchell
Peru Iron Co.
545
558
432
237
35
561
368, 373
Bedel
v.
552
412
63, 321, 342
412
589, 599
100, 247, 255, 272,
280, 281, 283,
319
414, 415, 418
y.
Pingree
Allen
v.
Israel
682, 685
113, 130, 131
v.
Long
v. Moler
Lord Cawdor v. Lewis
Lord v. Colley
v. Goddard
Lorick v. Hawkins
Lot v. Thomas
54,
Williams
Sherwin
v.
Lougher
Lovell
325
621
622
524
Snell
v.
Lothrop
674
y.
y.
Levering
Lovering
Robertson
Lowell r. Daniels
Lowell, City of, y. Parker
Lowden
Loyd
y.
Griffith
v.
Luckett
y.
Lucy
Levington
v.
Ludwell
Newman
y.
Ludwick
Lukens
Triplett
v.
Huntzinger
y.
Jones
y.
Nicholson
Lunsford
y.
Turner
440
35
State
M.
McAllister
McBurney
McCall
Cutler
v.
Coover
v.
y.
McCarty
Leggett
McClenachan
Curwin
Croghan
v.
McClowry v.
McClure y. Gamble
McCoy
423
118
59, 320, 485
291
Lord
t.
McCracken y. Wright
McCrady y. Brisbane
McCrea v. Purmort
McCullough y. Cox
Me Daniel
345,
66, 67,
653,
673,
684,
236,
Grace
McDonald v. Green
y.
McDonnell y. Hunter
McFerran y. Taylor
McGehee
y.
McGinnis
y.
McGoodwin
Jones
Noble
y.
Stephenson
685,
719,
361,
McKay y. Carrington
McKee v. Pfout
McKennan y. Dough man
McKenzie
The
y.
McKinney
McKircher
y.
y.
Watts
Hawley
Barton
McLelland
224
607
589
McLemore y. Mabson
McMurphy y. Minot
y.
Me Williams
Mac-key
y.
76,
Kellet
y.
Mi-Knight
McLean
y.
Hill
v.
360
442, 446
54, 220, 275, 318,
Nisby
Collins
724
732
300
268
35
168,
553, 568
613, 717,
403
581
267
639
629
594
Maddock y. Wilmarth
236 Maeder y. City of Carondelet
687
336, 348, 351
252
446
352
291
657
676
685
247
622
691
720
362
674
440
130
City of Lex-
ington
460
477
573
434, 580
639
637
407
444
Reab
Lee
y.
y.
McAlpin
Magaw
y.
Lothrop
Magridge y. Jones
Maighley y. Hauer
Major y. Brush
Manatee y. Morrison
Manor
y.
Washington
Maney y. Porter
Mann v. Lent
718
637
67
660, 661
573
685, 694, 701
614
637
XXXIV
Page
Mann
Ward
v.
Manning
474
377, 380
Cox
i.
Markham
y.
Middleton
Markland
v.
Crump
Mario w
Marston
v.
v.
Craig
388
562
369
Hobbs
Martin
v.
Atkinson
v.
Baker
Dwelly
v.
v.
Foreman
v.
Gordon
Arnolds
y.
Thompson
Brooks
Lovelace
Williamson
Avery
u.
Argyle
u.
Ewing
v.
Halsey
661
v.
Heller
392
v.
Long
Long
v.
Owen
Martin
Pace
v.
Parsons
v.
Watson
New York
v.
Mabie
7,
v.
Fox
v.
Johnson
Whitt
Means v. Brickell
Medbury v. Watson
Medler v. Hiatt
Medley v. Watson
Meeker v. Meeker
Mellon
477,577
Bell
Catlin
319
27,52,90,125,137,
531,687
06
y. Ladbroke
335
Milnes v. Branch
Miner u. Clark
226, 229, 249
612
Minor v. Edwards
328
Misher v. Misher
v.
Mistier v. Granger
Mitchell v. Hazen
v.
Pillsbury
v.
Smith
v.Warner
Mobley v. Keys
Moens v. Hey worth
Monahan
Moore
66
196,
Aurioi
560, 561
569, 621
572
Mcllen v. Boarman
572
638
Mercer v. Hall
855
Merceron v. Dowson
Merrill v. Frame
477, 484
Merritt v. Hunt
684
M> i-iit v. Reynolds
480, 483
Mrtcalfe c. Archbishop of York 440
Michael v. Nulling
35
412
Middlebury College v. Cheney
614
MiddlekaufF v. Barrick
v.
223, 416,
71, 145,
v.
Mondell
129,131
622
237, 679,
165
606
614
683
682
419
255
497
684
684
198
640
v.
265,267
706
375
226, 231,
233, 249
v.
Miles v.
Miller v.
Mills
188,367,
372
35, 41
v.
v.
of
Me<?ee
Goodale
v.
Poole
Mead
y.
y.
Midgett
Midgley
280, 321
48, 339
434, 580
63
180
35
v.
495
Martyn v. M'Namara
572
Mason v. Caldwell
v. Crosby
621, 622
v. Ham
572
412
v. Mimcaster
Massie v. Sebastian
412, 427, 433
629
Masson v. Bo vet
Master v. Miller
346, 376
256
Mather v. Trinity Church
482
Maule v. Ashmead
477
w. 'Weaver
106
Maundrell v. Maundrell
369
May v. Taylor
319
u.Wright
126
Mayo v. Babcock
267
v. Shattuck
Mayor
Middleton
Smith
v.
Marshall
74
Page
Middlemore
v.
v.
627
63,561,572
113
40
38,
112,114,293,
294, 342, 343
561, 674
620
66
Colgin
Steel
320
560
219
v. Lanhan
528
v. Magrath
68
v. McKee
400
v. Parker
412
v. Rake
718
v. Shelly
v. Vail
250, 255, 259, 260
Morgan y. Richardson 637, 647, 650
v. Smith
113, 126, 129, 132,
644, 674, 675
561
y. Swift
Morgan's Heirs v. Boone's Heirs 284
50
Morley v. Atteuborough
v.
v.
Cable
Harrisburg
v.
Morris
y.
v.
Polhill
Abat
Buckley
Bank
.riii
316
738
Morris
v.
Edgington
181
XXXV
XXXVI
Page
Page
Parker
v.
Harvey
v.
Kelly
v.
Parks
i?.
Patrick
Parmelee
Brooks
Patterson
Bere
v.
Patten
v.
Strange
Arthurs
v.
v.
Hulings
v.
Lanning
v.
Moore
v.
Pease
Smith
Stewart
v.
v.
32
116,118,120
638
472
437, 447
412
154
93, 94, 135
684
420
Taylor
Patterson's Lessee
v.
England
v.
Kennedy
v.
McFarlane
v.
Taylor et
Frost
v.
Witman
Pease
671
170
v.
v.
23
320
362
224, 382, 414
v.
v.
Paul
Marshalls
v.
Partridge
Patton
589
380
559,561,561
695
368
al.
380
626
525
v. Rogers
Pearson v. Morgan
Pecare v. Chouteau
Peck v. Smith
Peden
Moore
638, 667
v. Estill
154
v.
Peebles
v. Jackson
Mathers
Duval
Pelletreau
Pember
Pence
v.
51
409,410,441
Pharr
114,346
524
671
Reynolds
Decker
Sawyer 31
o.
v.
Phillips v. Claggett
Philips v. Smith
320
647
436
570
Pickering v. Busk
Picot v. Page
471
447
Pierce v. Emery
V. Johnson
23,31,342,381,
602
583
Piersoll v. Elliott
Pierson v. Davis
318
408
Piggot v. Earl of Salisbury
Phoenix Ins. Co.
Piatt v. Oliver
Pike
v.
Galvin
v.
Fiquet
415,427
Pimm
Mitchell
v.
Pillsbury
343
591
r. Isall
Pincombe
v.
Pintard
Pitcher
Martin
Pitkin
v.
Rudge
9,
300
629
v.
v.
Plasket
v.
Beeby
596
Platt
Gilchrist
v.
Plumer
v.
Plunket
Poillon
Poke
170,321,342
Polk
674
609
245
587
717
99
717
Pennsylvania v. Simms
674
Peques r. Mosby
Percival v. Kurd
684, 685, 691
Perkins v. Webster
524
638
Perly v. Balch
Perrot v. Austin
600
705
Perry t>. Cotes
v. Edwards
170
v. Kline
412
Peter v. Farnsworth
570
Peters v. Grubb
294
v. McKeon
320
v.
Phelps
155
v.
Huston's Exrs.
Pence's Heirs v. DuvaFs Heirs
Pendleton v. Dyott
Penn v. Lord Baltimore
v. Preston
Pennell v. Woodburn
v.
Pettee v. Hawes
Petts v. Gaw
v.
v.
v.
Marchant
Penson
Martin
362
716, 718, 730
Kelly
v.
123
Pollard
48, 54, 57
135, 660
Sumpter
v.
Dwight
Pomeroy v. Burnett
v. Drury
y.
Pomfret
v.
561
Partington
Ricroft
552
606
Pool v. Pool
Poole y. Hill
Pope
v.
Porter
Potter
265, 266
Biggs
v.
Hill
v.
Noyes
100, 227
215, 294
77
69,123,124,560
224, 465
v.
Sullivan
v.
Swetnam
v.
Potter
400, 412
u.Taylor
132,342,580
Poulton V. Lattimore
Pounsett y. Fuller
Powell v. Clarke
v.
Lyles
477
637
59
.V.M
542
XXXV11
Page
Powell
Powis
121,
Manufacturing Co.
328,329, 331
606
Smith
v.
v.
Poyntell
v.
278,738
564
461
344,367
v.
Hobbs
v.
Trueman
136, 342
^.Williams
114,115
122
684
Preston v. Trueman
Prevostr. Gratz
Prewit r. Kenton
Price y. Ayres
226, 237
682
614
220
48
119
600
182
379
34
681
197
561
637
320
190
Neale
Pringle v. Whitten
v. Witten
Pritchard v. Atkinson
Proctor v. Johnson
i>.
v.
Newton
v.
Thrall
Edmonds
Puckett v. McDonald
Prosser
v.
Pudsey
v.
Newsam
Chesseldine
Pulcifer v. Hotchkiss
Putnam v. Ritchie
Pugh
Pye
v.
v.
Daubuz
0-
588
524
Quarles v. Capell
Quesnell v. Woodlief
R.
Radcliff v. Ship
Ralston v. Miller
Randall v. Rigby
Randell v. Mallet
v.
Kinney
v.Meeks
Ranelagh v. Hayes
Rant v. Cook
Randolph
246, 247
682
600
134
387
201, 219, 255
75, 155
'
Rantin
v.
Rathbun
Rawlins
166
Rathbun
412
684, 694
336, 609
v.
v.
Raymond
469
Robertson
Timberlake
v.
Fitch
v.
Raymond
v.
Squire
22, 23, 25
377
594
653
136, 138, 577
637
Redd
Wood
v.
Redwine
v.
Brown
114
White
v.
Prentiss
v.
Spencer
Prebble v. Boghurst
Preble v. Baldwin
Prescott
Page
Rayner v. Watford
Reab v. McAllister
Read v. Pierce
134,
154
344, 352, 354, 359,
566, 584, 613
Reeder v. Craig
Reese v. McQ.iiilkin
412
93, 309, 312,
321
v.
Reggio
Smith
v.
Register
Renshaw
Braggiotti
v.
80,81,422,423
102
Rowell
438, 447
Gans
718, 720
v.
Buckle
Davies
245
199
Rice v. Goddard
642, 673
v.
342
Spottiswood
Rich v. Johnson
93
v. Rich
520
Richard r. Williams
592
Richardson v. Bright
626
v. Chasen
127
v. Dorr
27, 134, 342
v, Horton
591
v. McKinson
320
Rickert v. Snyder 54, 90, 101, 137,
244
Rickets v. Dickens
476, 524, 542
v. Weaver
336, 609
Riddell v. Riddell
377, 378
Rigby v. Great Western Rail517
way Co.
412
Rigg v. Cook
190, 453,456
Right v. Bucknell
d. Jefferys v. Bucknell
404
Roake v. Kidd
564
Roat v. Puff
524
Robards v. Cooper
661
Robb v. Lefevre
369
Roberts et al. v. Woolbright
685
Robertson v. Gaines
41 2
Robinson v. Bakewell
103, 132
v. Bland
43, 637, 647
v. Harman
59
v. Neal
54, 542
r. Wilson
637
Rockafeller v. Donelly
135
Rocksell v. Allen
573
Roe v. Hayley
608
Reynolds
v.
v.
XXXV111
Page
Roe v. Swezey
Roebuck v. Depuy
Roffey v. Shallcross
Rogers v. Colt
Cross
i>.
Horn
Payne
v.
v.
Roland
Roll
Romig
y.
Romig
James
v.
Romilly
Root
Miller
v.
Osborn
v.
Crock
v.
Row
Dysart
v.
Turner
v.
Dawson
362,
Rowntree v. Jacob
Royer v. Ake
Rucker v. Lowther
Rufner v. McConnel
Russell
Ryan
v.
Clark
Atwater
v.
S.
Sacheverell v. Froggatt
Sainsbury-i\ Jones
Salmon
Salter
v.
v.
Hoffman
Kidley
v. Cooke
San born v. Woodman
Sanders v. Betts
v. Hamilton
San ford v. Handy
Sampson
Sargent v. Gutterson
Saunders v. Johnson
v.
Savage
Whithead
Cator
Schaffner v. Grutzmacher
Scherrnerhorn v. Hayden
Schlencker v. Moxsy
Scott v. Alworthy
Sawyer
v.
u.
Douglass
v.
Godwin
v.
Lunt's Admrs.
Scudder v. Andrews
Seabourn v. Powell
Seaman
v.
Browning
Barry
Tutor
Sedgwick v. Hollenback
Seaton
Seddon
v.
v.
XXXIX
Page
Small
Stannard
Aekerman
135, 660
v.
Babeock
Baker
Stapylton v.
Starke v. Hill
State w. Gaillard
v.
Cannell
622
422, 442
124, 459
v.
Compton
y.
Smith
Pajrc
v.
v.
v.
v.
Shepard
517, 548
524
99, 154
403
614
621
407
622, 624
244
if.
Sillyraan
Evans
y.
v.
Ho well
Low
v.
Mercer
o.
Mitchell
y.
Pendleton
Richards
v.
o.
Simonds
336
23, 63, 65, 69, 70
Strong
471
v. Sweringer
and Wife v. Addleman
328
524
Snow v. Chapman
Snyder v. Lane
128, 129, 138
650
Solomon y. Turner
Somerville y. Hamilton
74, 237
Somes y. Skinner 89, 412, 413, 425,
v.
y.
Soper y. Stevens
Soprani v. Skuno
Sorsbie v. Park
Souders v. Vansickel
y.
Spring
y.
Steinhauer
y.
698
63, 247, 315, 324
237
355
Stevenson y. Lambard
466
Stevenson's Heirs y. McReary
Stewart v. Drake 101, 135, 138, 145,
243, 319
v. Eden
311
321
v. Noble
West
y.
Ashdown
r.
y.
Stinchfield
Stinson
St.
y.
Little
y.
Palmer
Cook
Smith
Stockton v.
Stoddart v.
Stoever v. Whitman
Stokes y. Jones
Stone v. Buckner
Patterson
v.
Peake
y.
Richardson
Jackson
673
362
566
135, 136, 138
174
34, 36
110
Morris
Stanard
r.
Eldridge
Stanley
y.
Hayes
Jones
y.
Eldridge
y.
Story
Stout
y.
Stow
y.
Stowell
588
463
572
Thomaston
Sumner
y.
John
v.
33
Stephen y. Bagwell
Stephens y. Cooper
Sterling y. Peet
Stevens y. Jack
113
391, 400, 401
463
721
638
McLagan
v. Van Rensselaer
v.
Adams
Mitchell
Stehley y. Irvin
Steigleman y. Jeffries
Steiner y. Baughman
Stillman
71, 95
499
549
563, 564
671
704
626
67
557
Holloway
y.
Stimpson
101
Stannard
Ullithorne
Scott
y.
41
604, 605
Chase
v.
v.
Fowle
Hooker
Tongue
Spruill y. Leary
Squire y. Harder
Staats y. Ten Eyck
Staines
Forbes
y.
y.
Stack y.
StalUml
Steele
446
614
267
Souter y. Drake
562
South y. Hoy
342, 600
591
Spackman y. Trimbell
410, 412, 464
Sparrow v. Kingman
166, 715, 740
Spear v. Allison
604
Spencer y. Durant
y. Howe
127
y. Mar riot
172
Sprague
y.
y.
77,
691
717
35
421
684
674
247, 248
265
674
606
214, 319, 329
Stevens
y.
345
253, 256
Bennett
560
344
66
335
Street y. Blay
637, 643
660
Streeter r. Henley
321
Strode's Heirs y. Cox's Heirs
Strohecker y. Housel
472, 736
623
Strong y. Peters
380
y. Strong
466
Stroughill y. Buck
Strawbridge y. Cartledge
Streaper v. Fisher
Page
Kissam
592
Templer
King
Page
651
63
Terret
Hearing
Summerville v. Jackson
Sumner v. Barnard
476
Tharin
734
438, 460
Thayer
Stuart
v.
Stubbs
y.
v.
Style
v.
v.
v.
Wentworth
580
Williams 93, 101,315,316,
v.
Sumter
Welch
v.
v.
220
166, 168
614, 621
69, 129, 130, 354,
359, 370, 377
Arighi
Sutton
y.
Suydam
v.
Jones
Swafford
Swan
v.
v.
v. Whipple 57,63,68,3 21
560, 561
Drury
Searles
Stranshan
Swasey v. Brooks
v.
Sweet
Swett
Swift
Brown
y.
Swenk
Stout
Patrick
y.
v.
484
600
176
529
226, 234
100, 101, 315, 606
Hawkins
v.
Symmes
v.
651
196
Smith
Dinsmore
v.
v.
Tabb
Clemence
Wendell
v. White
Thomas y. Me Can n
v.
y.
v.
Perry
Powell
v.
671
59
643
v.
v. Morrow
327, 328, 329
v. Sanders
354, 359
v. Shattuck
354, 359
412
Thorndike v. Norris
Thornton v. Court 361, 365, 377, 378,
379, 686
v. Wynn
637, 638, 649
Threlkeld y. Fitzhugh
319, 329
Thompson
v.
Binford
214
v.
y.
Debar
v.
Fleet
v.
7nt
Fulmore
Gilman
129, 584
Horde 7,15,16,45,47,256
v.
r.
v.
v.
Temple
v.
189,190,192,442
Needham
Owen
Partridge
v.
Christian
v.
Guthrie
Mansfield
Tibbets
r.
Tillotson
Ayer
Boyd
658,673
349
y.
Grapes
V.Kennedy
410,412,418
Conover
y. Harkinson
Tinney v. Ashley
Tisdale v. Essex
Tod y. Baylor
561
v,
623, 629
560
166
329
v. Gallagher
730, 738
Todd's Heirs v. Todd's Heirs
395
Tomlinson v. Smith
320
Tone v. Brace
477,478,479,683
Tourville v. Nash
708, 709
640
Toussaint y. Martinnant
Town v. Needham
352, 362
Townsend y. Morris
214, 342, 609,
610
Weld
69,130
Trask v. Vinson
Traver v. Halstead
673
560
558
469, 519
v.
Tremain y. Lining
Trem-hard v. Hoskins
Trevivan v. Lawrence 403, 404, 408,
623
404
835
402, 457
612
601
Throughton v. Throughton
Thursby v. Plank
Tindall
410
Stephens
570
Taggert v. Stansbery
Talbot v, Bedford's Heirs
219
642,647,652,
Tallmadge v. Wallis
656, 663
Tallman v. Green
156, 626
Taltarum's case
6
Tanner v. Livingston
90
63
Tapley v. Lebeaum
v. Lebeaum's Exrs.
65
606, 609
Tapscott v. Williams
648
Tarpley v. Poage's Admrs.
Tarwater v. Davis
561
31 1
Taunton Bank y. Richardson
621
Taylor y. Ashton
y. Brodrick
328
Taft
571
560
342, 346
572
561
622
24, 35, 48
614
Pickling
v.
T.
637
412
Taylor
Thacher
Surget
Sutton
McLachlan
v.
413, 441
Triplett
True
v.
Trull
y.
v.
Gill
148
Haley
Eastman 223, 412, 415, 4 1C,
418,
Try on v. Whitmarsh
TuVker y. Clarke
-JLM)
W2
84, 4
2;.
xli
Page
Tucker
v.
Tufts
v.
Adams
Tuite
v.
Tulk
524
Cocke
155
622
Turner v. Goodrich
100, 226
v. Harvey
623, 626
Tuscumbia R. R. Co. v Rhodes 696
622
Tuthill v. Babcock
Moxhay
v.
Turnbull
v.
Gadsden
Twambley
Twining
Young
674
v.
v.
Vernam
Smith
Smith
Vibbard y. Johnson
Vick v. Percy
Vigers y. Pike
Vernon
y.
v.
Vrooman y. Phelps
Vyvyan y. Arthur
283, 284
561, 565
409
284
263, 479, 482
300
64
612, 629
639
300, 477
w.
Wace
y.
Halligan
y.
Lindsay
89
265
483
41
y.
Linsley
412
Bickerton
y. Barnett
v.
Waddilove
Wade
U.
V.
Mervin
Wadleigh y. Gaines
Van
Van
Van
Van
Van
Van
v.
580
y. Glines
434, 580
Wailes y. Cooper 666, 684, 686, 694
T
ait y. Maxwell
21, 54, 182
Wakeman y. Duchess of Rutland
567, 568, 614
Walden y. Bodley
268
478
Waldo v. Hall
y.
101, 138, 145, 233
Long
v.
256
41,
Fonda
701,
132,
Stafford
557,
624
569
368
355
421
702
52
455
362
680
110
680
570
685,691,692
359, 392
Vancouver y. Bliss
Vanderkarr y. Vanderkarr
563
219, 242,
289
Vane
v.
d*
y.
411, 420
639, 649
66
y.
Waldron
Clemens
Brunt v. Schenck
Buren v. Digges
Epps y. Harrison
Eps v. Schenectady
Hoesen v. Benham
Home v. Crane
Valle
684,691,694
612
Morrice
Pickard
G wynne
v.
Tyler
24
Henley
355, 607
637, 647, 650
Twynam
Tye
y.
v.
Page
Vanmetre v. Griffith
Vardeman v. Lawson
Varick y. Edwards
Venable v. Beauchamp
Walker
y.
McCarty
v.
Hatton
y.
Moore
v.
Physick
Schuyler
Wallace v. Talbot
v.
Walton
y.
Bonham
99
59
477
329
91, 318
672, 692
Waterhouse
Bartholomew
Grayson
Trathen
v.
Ward
y.
y.
y.
Ware
Wark
Warn
Weathrall
Willard
r. Bickfbrd
Warner y. Daniels
Warwick v. Nairn
y.
v.
Washburn
y.
412,
187,
Picot
Waterhouse y. Stansfield
Waters y. Mattingley
y. Dean of Norwich
41,
Watkins v. Holman
268, 592,
264
570
685
612
318
927
198
622
637
650
43
622
213
594
xlii
Watkins
v.
Hopkins
Owens
v.
Watson
66
v.
Parker
588
561
133
567
432
441
257
477
380
602
621
545
t>.
Arnold
v.
Weale
35,
Lower
v.
Webb
w.
Alexander
v.
Russei
v.
Steele
403,
236, 242,
Webber v. Webber
Weeks v. Burton
Weenis v. McGaughan
Weiser
381, 592,
Weiser
v.
Wellesley
Wellman
v.
376, 380
YVellesley
Hickson
v.
v.
Austin
v.
Fydell
Wentworth
Cocke
Goodwin
Blake way
v.
West
o.
v.
v.
Spaulding
Stewart
Westbrook v. McMillan
Whallon v. Kauffman
Wheat
Dotson
v.
White
Cook
v.
Damon
v.
Erskine
v.
Foljambe
v.
Lowry
v.
Wilford
Wilkins
McKane
v.
Rose
v.
Fry
Hogue
v.
r.
Burrell
v.
Claiborne
v.
Hathaway
Hogan
v.
v.
25, 29
93,
320
408
480
38, 41, 609
43
Mans
v.Matthew
v.
311
Presbyterian Society 40 7
412
v.
Thuriow
702, 705
v.
W eatherbee
495, 524
638, 661
v.
Wetherbee
219, 226,
236, 312, 342
275, 354,
359
Williamson
v.
Codrington
v.
Raney
158, 160,
Willis v. Aston
Wills v. Cowper
Wilson
t;.
v.
121, 580
v.
564
224, 382
566
Baptist Society
SI 9,
Cochran
Forbes 24, 45, 49, 63,
218
614
569
43
639
573
65,
v.
Jordan
v.
Knubley
342
668
590, 597, 598
v.
McElwee
74,
279
Williams
Whiting
v.
Fit/patrick
228
555
v.
Carr
Gotwalt
v.
o.
v.
Whitney
Whitehill
Wiley
713
674
420
455
619, 629, 631
601
695, 699
54
566
684
Shelton
66
v. Short
34
Willson v Willson 63, 108, 134, 136,
v.
Whitehead
Gibson
v.
Wildridge
440
721
Patten 427,430,431,432
576
San born
v.
Wilde
McGimpsey
Wight v. Shaw
Wightman v. Reynolds
Willard v. Twitchell
Williams v. Beeman
609
20, 22, 24, 45
v. SohieV
354, 357, 359
v. Wheeler
376
420
Wheelock o. Henshavv
v.
294, 342
Thayer
Whisler v. Hicks
185, 660, 660
v.
v.
265
Wheatley y. Lane
Wheeler v. Hatch
Whitbeck
Lancaster
Wiggins
35
403
600
600
643, 659
369
175
53, 295
v.
v.
Whitney
472,473
Welch v. Mandeville
Weld v. Adams
Wells
Dinsmore
273, 346
v. Lewis
647, 651, 653
Whittaker v. Cone
38, 39, 40
Whittin v. Peacock
386
Whitworth v. Stuckey 684, 685, 701
Wiedler v. Farmers' Bank of
Elaine
v.
Way
Page
674
157
o.
Waddle
Wellman
Waugh v. Land
Watts
Page
v.
Dewey
v.
Nissly
572
63
233
629
v.
Wilt
v.
Winne
Franklin
v.
Reynolds
Winston v. Gwathmys
Wintrrbottom v. Indium
With.-rs
o.
v.
Atkinson
Baird
66
560
_'_'
1.MJ.S
718, 780
555, 718
xliii
Page
Withers
Bircham
Green
v.
v.
606
638, 649
683
Morrcll
r. Anderson's Exrs.
v.
Page
Wyche
434
Wright
Macklin
v.
Ballard
v.
Brigden
v.
Harman's Devisees
v.
v.
Wyman
Witherspoon
Shaw
v.
Wright
651
318
Withy
Witty
Mumford
v.
v.
Hightower
Wolbert v. Lucas
Wolfe v. Hauver
Wood
Me Quire
t.
Woodfold
v.
Blount
Jenkins
66
35
556
174
Woodhouse
v.
Woodruff'
Bunce
683,685,693
1 70
Greenwood
v.
v.
Woods
v.
North
Wood worth
v.
Allen
247, 285
Janes
39
Woollam r. Hearne
129, 131
566
Worley v. Frampton
59
Worthington v. Warrington
v.
Johnson
566, 572
196
v. Cooke
v. Hele
166, 167, 169, 182,
579, 580
692
Wray v. Furness
437
Wright v. Hen on
Worthy
Wotton
v.
v.
Meek
667
Wyse
r.
35
420,
529
601
Snow
Y.
Yancey
685
Woodward
376
v.
v.
Holladay
Lewis
Yelton v. Hawkins
Yelverton i. Yelverton
Young
v.
Adams
v.
Bumpass
v.
Burnham
v.
Covell
?'.
Hargrave's Admr.
v.
Harris's
r.
Hopkins
v.
Matthew
v.
McClung
v.
Raincock
Admr.
754
166, 682
68, 235
440
614
626
627
621
476
619
626
321
685
17,48, 120,
336, 465, 509, 609
COVENANTS FOR
CHAPTER
TITLE.
I.
THE
"
title
in
accompanied
man,
to
changes, and Sir Orlando Bridghas been ascribed the bringing of these cov-
less material
whom
enants into general practice, seems to have had his professional eminence, as a common-law Judge, undisturbed by
Yet, with
any imputation of an undue desire to reform.
their introduction, one of the most abstruse and subtle subjects in the
of the practitioner.
And if in England, the more pliable
forms of covenant were found better suited to carry into
effect the intentions
lantic,
of
itself,
all its
common-law
incidents.
it
formerly existed in
not
be
to
an adequate commay
unnecessary
has
of
the
which
superseded it.
prehension
system
By the
this respect,
had received
might
call
at the
upon
title
hands of his
to the fee
lord,
which he
were disputed, he
in
which,
if
recompense
in other
it
also
bound
lands to answer
effect
it
was a
natural
incident of tenure.
When,
transfer of lands
"
ment,
deeds where
is
is
Sir
Martin Wright, in
his intro-
so,
in
the case of
to
loss
the question
by the
has been
discussed
civilians,
ity
I have statnl it
See Mr. Butler's note to Co.
seems to be as
above.
Litt. 365.
2 4
Ed.
I. c. 6.
warranty
remarks on
;
Hence
it
The second
common
and not of
service, without
feoffbrs
homage
bounden
bound
to
or
own
warrant
to warranty, notwithstand-
life
"
by
force of his
own
gift,
in
during his life, and not one which would impose an obligation on his heirs.
of quia emp tores 3 prohibited subinfeudation by declaring that it should be lawful for
every freeman to sell his lands at his own pleasure, and that
few years
the feoffee should hold the lands of the chief lord of the fee,
hence
1
2 Institutes, 275.
Anne,
This
to the
is
c.
in substance, in
See Chapter X.
3 18 Ed. I. c. 1.
sell,"
many
of our States,
4<
conveyance
in
fee,
of the donor.
life
As warranty by
implication
thus became in
many
in-
stances a
mere personal
annexed
express warranties (which though sometimes employed before that time, were by no means
general,) became almost
universal.
Their
effect
was
twofold.
could
call
First, the
title to
in
grantee
case of eviction.
And secondly, the warranty operated as a rebutter, by barring the warrantor and his heirs from claiming any portion
of the estate so granted with warranty.
Every warranty
which descended upon the heir of the warrantor was operative to prevent the heir from recovering back any lands
against the warranty of his ancestor. The law of warranty,
and the law which gave the entire inheritance to the eldest
Still,
The
statute of Gloucester,
The word
"
"
give
is
seldom or
those
8 6
importance*
Ed.
I. c. 3.
such warranty.
Into the difficult and unsatisfactory learning connected
with what have been termed lineal and collateral warranty,
it is not
They were terms unnecessary now to enter.
known in the earlier days of the common law. There was
No
spoken of, and then only to sweep off the intricacies which
the distinction had caused.
A few words will trace its
origin.
The
statute de donis?
by removing the
estates
of the
to a height
Nor was it
galling to the trading and industrious classes.
less distasteful to the
in
sons,
who,
consequence of
younger
the unalienable nature of the estates in
created,
saw
tail
when
was
ants in
tail.
late.
All of these
the mischief
it
too
First to
warranty.
If lands
i*
is Ed.
I. c. 1.
if
to say to
it,
collateral
tail
became
his heir,
this
common
Nearly two centuries elapsed before collateral waranties, as a means of evading this statute, were
succeeded by fines and recoveries, which, invented at first to
ingenuity failed.
Littleton,
720, speaks of
one
created a tenancy in
tail
II.,
who
with re-
and other
and provid-
and the
satisfac-
is
"
new
"
as examples, to
show
that
Such a
of the law are dangerous."
contest also took place after the stat-
lar conditions
alienation,
immediately
determine,
warranty
could
descend
per-
in
tail
-iinilar
all
would be accompanied
by
restrictions.
Consequently,
these remainders were held to be
technicality
were imposed
in
the
12 Ed. IV. case 25, and it is a remarkable instance of how the original
meaning of a
statute
can
In-
mon recovery
"a
an
privilege fnwparaWy
estate tail," and one
held to be
incident to
It is
truth
The
here refers,
is
similar in
all
his cases."
Lord Vaughan
its
&
To
5 Anne,
tenant for
life
reversion,
and
are
all
c.
16, by which
all
was added
warranties by any
made
dition,
limitation,
in
Taylor
writ of warrantia
As a form of action
chartce, or by voucher to warranty.
merely, that of warrantia char tee appears to have been as
simple as the action of covenant, and the difficulties connected with it arise rather from the abstruse doctrines of
brought as a
The
was frequently
as soon as there
action
was reason
title
bound
The
effect
is
a cogent reason
The
&
c. 74,
So,
title
The warrantee
of those which
hand, tended to
called
upon the
14.
by a recent English
4 Will. IV.
c.
27,
39;
id.
statute (8
&
right of re-entry
\)
land, or yield
value.
This requi-
made dewas
given
appearance, judgment
any way
against the warrantor, and at the same time judgment that
If he failed to appear, or*
after
the warrantee
recover lands
fault
But
there were
continuances
and not
many
From analogy
in all of those.
in real
actions,
to its practice
have
subject-matter
hereafter.
inquiry,
will
be particularly noticed
in
in
its effect
warrantor, or in
But
in
See
infra,
Chapter VII.
term of years.
The
lessee entered
warrantor,
who pleaded
him by them,
undetermined.
On
which was
still
a warrantia
10
Of
It is there said,
it.
"Before we ventured
to
recommend
so
this
community,
when
if real
modern
the
actions
action of ejectment
was
devised.
They
have generally originated in schemes of unprincipled practitioners of the law to defraud persons in a low condition of
of their substance, under pretence of recovering for
them large estates, to which they had no color of title. In
life
many
de-
mandants
costs
in defeat-
But a
rantia
had
chartae,
reference
to Viner's Abr.
Chartae;
tit.
Fitzherbort's
may be
Warrantia
Nat.
Brev.
Roll
v.
of the doctrines of
and
for
to
Saunders' Rep.
11
it
In those parts of
of gavelkind and
and
in
by the
youngest of them.
The " covenants for
"
title
were introduced, as a
substi-
being, as is said in the preface to Sir Orlando Bridgman's Precedents of Conveyances, " advised by him during
tury,
ment from
strict retire-
public affairs."
all
five
first,
and
clear
from
all
incumbrances
and
fifth,
pi.
11
Abr.
tit.
Garranties,
Litt.
to hereafter,
735,
they were
736.
2
this
Many
sional
will
be found
but
first
it
and be referred
is
believed that
employed, collectively
and generally,
as
warranty about
this time.
substitute
for
12
dom employed
sel-
This
is
still
relied
upon
arisen
Yet notwithstanding
the improve-
in
has attained."
pied
much
Williams on
They
dinary conveyance.
&
Real
Property, 377.
The
"
X.,) called
An
statute 8
Chapter
whom
An
English conveyancer, to
little
used
and
maof cases mostly neglect them
jority
them than we
do,
and I believe
ferred
is
In the
treatises,
more-
to.
The
last
colonists,
added
13
to the fact of
been said more than once from the bench, that although
covenants for title are found, in some shape or form, in almost every conveyance of real property in the United States
and are practically enforced every day, yet that their effect,
and the rules which govern them, are less reduced to order,
and less understood as a system, than almost any other simbranch of learning.
Yet, with all this, it will be found
that far less practical contradiction exists than would have
ilar
The
been supposed.
harmonious
eral,
classification
many
It is proposed in the
following pages to consider the covenants for seizin, for right to convey, against incumbrances,
for quiet
enjoyment, for further assurance, and of warranty,
and separately, examining in each its form, definiscope, and the measure of damages consequent upon
in detail
tion,
its
breach.
covenants for
1
Then
title
which
so elemen-
the
authorities
there
referred
reto.
Great
of Sheppard's Touchstone
Lib. vol. 30 and 31)
Viner's
"
tit.
and
edition
(Law
Abridgment,
Voucher,"
profit
may
also
be derived
the
missioners in 1835.
14f
and discharge
by way of estoppel or
the doctrine of implied covenants, and how far
rebutter
covenants for title, whether expressed or implied, may be
lease
limited or qualified
their operation
assignee
and
or defect of
lastly,
title.
CHAPTER
15
SEIZIN.
II.
SEIZIN.
ant
was admitted
without
it,
no freehold
But
meant
actual possession.
There was a virtual or
constructive seizin, such as arose through the possession of
when
deemed
to be the possession
There was
also a seizin in
who had
the right of
2 It
was
er droit droit.
ler's note,
2 Bl. 195.
266
was in another.
16
SEIZIN.
companied the
title
which ac-
sin-
Although the
latter might not be actually disturbed,
yet he who had received the warranty could, by means of a zuarrantia chartce
is,
quia timet, obtain a present lien upon the other lands of his
warrantor, if the right of the latter were shown to be de-
fective.
jects
this lapse
require
to
law"
erty, 14),
(1
Cruise on
Real Prop-
dif-
seized
575
578
this
Goodright
Doe
stracts,
and
fe-
388),
stand
Horde,
in-
offment, could not thus turn the lawful owner into a disseizee, unless he
suffiIt is
tinguished authorities.
cient here to notice, that in the wellknown case of Taylor d. Atkyns v.
of the
common-
v.
v.
Forester,
Lynes, 3 Barn.
notwithstanding
the
Taunt.
&
Cress.
earnest
279;
330
b.
Butler's
note to
Co.
v.
Leading Cases.
Horde
in
SEIZIN.
17
state of transition.
Among
The word
seventeenth century came into general use.
" seizin " seems
gradually, during this time, to have been
looked upon less as one of the parts of a title, than as
synonymous with title itself, and the covenant that one was
seized in fee, was regarded as a covenant for the title? in
contradistinction to the covenant for quiet enjoyment, which
was called a covenant for the possession? and such has been
England down
the case in
nant
is,
therefore, in
Cooke
v.
it,
Fowns,
3 Keble, 745,
Mayo,
Howell
v.
Richards,
13.
ance.
Com.
r.
They
for
seizin, as
4G,)
covenant
East,
Browning
11
Kaincock,
Bench, 310.
Pull.
v.
v.
when
Keble, 95;
Levinz, 46.
Young
Gregory
cove-
755.
641
The
The covenant
S. C. 1
this
means
2*
hold,
for
seizin
is
or revoked, etc.
in/ra,
Chapter
III.
18
invariably the
has been,
estate
form
"
in
SEIZIN.
first
when
the following
in
And
the said
agree to
signs, in
manner
heirs, executors,
(grantor)
is
now
hereby released,
and indefeasible
and
in
estate of inher-
the said
messuage, &c.,
or otherwise assured or intended so to be,
and every part and parcel of the same, with the appurtenances, without any condition, trust, power of revocation, or
of limitation to use or uses, or any other
power, restraint,
cause, matter, or thing whatsoever, to alter, change, charge,
defeat, revoke,
make
Simpson, Buzby's
this
fatal to
recording acts.
3 This is a form of the covenant
when used
veyed," would,
generally
in
which
this
at length.
presumed, be
instead of "re-
England a
is
American conveyances,
in
leased,"
it
inserted
lease
is
familiar,
that in
gain and
sale, in that it
in the
conveyance of a
It will
of course
text has
the
from
been taken
Other
Covenants, 306.
forms will also be found in the fourth
Platt
on
volume
pp. 5, 6,
of
Wood's
however, rarely
the most
Conveyancing,
This covenant is,
7, etc.
if
ever employed in
that
SEIZIN.
19
As
now
seized,"
to
the con-
&c.
and
quality,
But
covenants for
marked
and
in
form
form
which the
one of the most
in
in that
country,
it
is,
on
by
the preceding
" has a
he, the said (grantor) is lawfully seized," or
and, whenever used,
it is, I
apprehend, expressed much more briefly
than when Mr. Platt wrote, which
was in 1829. No forms of this cove-
good
11
Lord Ellenborough.
East,
20
and
sufficient seizin,"
SEIZIN.
employed.
At
the time
duced, owing
when
these covenants were originally introto the sense in which the word seizin was
synonymous with
used, as
title,
same
practical
and a cove-
it,
different
answered by the transfer to the purchaser of an actual seizin, no matter how tortious, provided
defeasible estate, but
it
is
title.
In
this
many
in
enant for
seizin,
is
often entirely
warranty.
provisions are
utory
in
force,
stat-
the
Cooke
Levinz, 46
Gray
v.
Briscoe,
in the report of
The
"
By
And
broken.
the jury
in the
v.
lated.
read,
Fowns,
The
142.
that the
Gray
v.
Keble, 95
S. C. 1
Noy,
announced
first
The
passer,
of,
possession of a
avowed
shall
give
" the cov-
mere
tres-
one
the
what arc
broken,
latter
tains
is
.nants."
trniml
"tin:
usual
COVC-
without claiming
of Marston
v.
21
SEIZIN.
Hobbs, decided
Massachusetts in
in
"The
title.
seizin in fact
was
to convey.
2
under a covenant apparently similarly worded, by deciding that a covenant for seizin was not broken where the
Maine, and
chusetts, but in
1
Mass. 439.
There appears
gnment on this
to
Parsons,
Ch. J.
point,
in
Wait
320
Cornell
(Mass.)
Jackson, 3 Gushing,
v.
Young, 11
New Hamp.
Hamp.
186, supra)',
Mitchell, 3
ard,
v.
509; Breck
Kirkendall
v.
Griffin
Greenleaf, (Me.)
v.
268, 269
Fairbrot.her, 1 Fairf. 95
2-2
v.
Booth-
by
Administrators
us'
"The
211.
v.
3 Ohio,
McCoy,
covenants so usual in
is
SEIZIN.
right,
such covenant
if
title
The
ministrators
v.
McCoy, though
Ad-
differ-
ac-
in
60.
If
These
Foote
Burnet, 10
v.
and Devore
v.
Ohio, 327,
Sunderland, 17 Id.
is
Marston
the grantor is in the exclusive possession of the land at the time of the
an actual seizin
the covenant is not broken at all
that there has been and can be no
breach, and that the covenant will
havebeen fully answered even though
the purchaser should afterwards be
But the case of Backus v.
evicted.
McCoy decides that where there is
to the
his
own
seizin
is
in law, suffi-
him from
liability,
under
his
if
there
v.
it
is
an indefeasible
SEIZIN.
same
the
receives
it
estate,"
construction everywhere.
There is one point of view from which the construction
thus given to this covenant might readily appear to be corSince possession enduring for a sufficient length of
rect.
time, will, under the limitation acts, ripen into a good title.
seized,
is
postponed
or
actually
This
constructively.
the
a result to which
him
the cases
252; Collier
472.
"The
some
of
v.
Allen, 14 Johns.
v.
Gamble, 10 Missouri,
doctrine established in
the
neighboring
States,"
is sat-
isfied
by a possession without
title,
when
applied to the
the instant
Professor Dane, in his Abridgment, draws the distinction somewhat further than the authorities
is
broken,
if at all,
it is
"
Chapter VIII.
The
support.
ler
Slater
etc.
fact
Fow-
v.
is
a sufficient estate
to
carry
with it to an assignee the covenants
for quiet enjoyment and of warranty.
If,"
says he,
" the
grantor
nant he
and
'
but
if
he cove-
Vol.
4, p.
339.
seizin.
1 This distinction
arising from the
form of the covenant has been no-
essarily follow,
ticed in Prescott
631; Smith
Raymond
v.
v.
(Mass.) 134;
2
v.
Trueman, 4 Mass.
Raymond, 10 Gushing,
Garfield
v.
v.
Williams,
Johnson,
The
cases,
The two
indefeasibly seized."
there would
seem reason
SEIZIN.
possession
more
its
But some of
the
title is sufficient
to
in
recently the
that a posses-
support a covenant
latter
sion
it
was held
that one who, claiming to be seized, had covenanted that he had " full power, good right, and lawful author-
action against
is
Thus
it
was admitted
Wheeler v. Hatch, 3
389, Thomas v. Perry, Peters' Cir. C. R. 49, and Wilson v. Forbes, 2 Devereux, 35, it was
held that the covenant for seizin was
i
Fairfield,
in
(Me )
session,
Marshall, 436,
it
it was notorious
conveyance that there
because
was an adverse
a
possession,
The
631.
lett v. Gill, 7 J. J.
seizin,
at the time of
was broken
in Trip-
grantor was
441.
So
the
that
Twambley
Parsons, Ch. J.
5 Prcscott
v.
Trueman, 4 Mass,
Parsons, Ch. J.
neither
is
SEIZIN.
So in a more
seized has a right to convey."
2
of
those
were
the
covenants
where
recent case,
good right to
that " the
Court
it was said
and of
by the
man
for a
warranty,
covenants of seizin and of right to convey, are, to all practithe same fact, viz the
cal purposes, synonymous covenants
seizin in fact of the grantor claiming the right to the prem-
convey
ises will
it
is
of his having a
port both of these covenants, irrespective
3
a case in New
in
where
title."
indefeasible
Again,
good
4
Hampshire the defendant had covenanted that he was the
lawful owner of the land and was seized and possessed
thereof in his own right in fee simple and had full power
l
in
Court in Fitzhugh
v.
Croghan, 2
J.
title,
" is
plete legal title," said the Court,
the yum et seisince conjunct io, the title
and
This is the
possession united.
technical and legal import of the
'
terms
'
Seizin
whole
seized
'
of
the
means, ex
legal, title.
vi
legal
title.'
termini, the
covenant of
the covenantor
if
is broken
have not the possession, the right of
possession, and the right, or legal
seizin
It
minus."
Omne majus
continet in se
to
tinguished as together
making a
per-
tion
is
certainly supported by all the
authorities except the few cases now
under consideration.
26
See
infra, p.
et seq.
Slater
v.
Rawson,
Metcalf,
450, 456.
3
Raymond
v.
Raymond, 10 Gush-
v. Twitchell, 1 N.
Hamp.
where it was said " it is deeply
to be regretted that it has been so
settled," and in Parker v. Brown, 15
Id. 176, this case has been overruled, and the doctrine rejected. See
Willard
1 78,
infra, p. 28.
to grant
SEIZIN.
that the grantor has such a seizin that the land will pass
his deed."
But
the
broken
if
doctrine that
the
is
by
not
means,
to
hold
that
in
fee
simple.
That they
had good right to sell and convey, means, that they claim
That the premises are free from all
to have such right.
incumbrances, means, that they claim that they are thus
This is not the most natural and obvious meaning
free.
of the usual expressions in deeds of warranty.
They say
They speak of realities. Fee
nothing about claiming.
Well seized
simple denotes a permanent estate.
denotes
a
seizin of a permanent estate.
simple
in
fee
Such
aid
of concurrent circumstances.
that
an
See
SEIZIN.
them a
different construction."
Sturdevant, 6 Conn.
That was
object of the covenant.
security to the purchaser, to the extent of the title purporting to have
"
might safely
opinion of the Court,
be rested on the inapplicability of
ion, are
Lockwood
385.
the
y.
"
decisions
Hobbs,
&c.,)
cited,
am
(Mar'ston
constrained
v.
to
observe,
That which
shows covenants of seizin and of
them my
to
assent.
is
right to convey, to be broken,
If the covenants are
their falsity.
true, they
remain inviolate
if
they
ment of
question
and
fact of
seizin intends
than
possession,
without
no
seizin in law.
the possession
is
not
on a supposed
marks, as
support
covenant that
the
the
where
there
is
In the nature of
of an estate con-
sion
was merely
if
that
by
anything more
an expression
is
meaning,
an
title
utility
word
their
to
an expresestate,
which admits of but one con-
indefeasible
struction.
strictly
The
call
is
the
above re-
commencement of them.
In
the
ant in
tail
only.
in
New
a recent case in
SEIZIN.
1
the
Hampshire,
Supreme
"
186.
v.
Brown, 15 N. Hamp.
ance of a
title,
opinion,
that the intrinsic importance of the
principle, and the inexpediency of
case,
demands of
us.
But
that con-
stand
it.
seized
peaceable
no pre-
own
right in
This engagement is cer-
party
party
who remains
fully,
owner.
This
be a good seizin
but the true owner, but
may
against all
is not a seizin
right in fee.
such
is
in
the parties'
covenant
for
his
own
tikes
security
in the adverse
except such as
dis-
ing that time. But this is for a quieting of possession and barring stale
claims. It does not show that before
session
ple,
has
treated as
fee simple.
tainly not satisfied in any just sense,
by evidence that the grantors are
their
who
may be
his disseizee.
He cannot be permitted to qualify his own wrong; but
this is for the sake of the remedy.
another
seizin, in virtue of
under
Nor does
the
the
transmitted
seizin
be interrupted,
fulfilled.
consideration
that
may never
show
The engagement
of
dispossessed.
is
expressed.
Parties
in
which
not con-
the
had no
title
what-
trine
previous decisions
the
it
altogether, overruling
1
that
in
SEIZIN.
State,
the train
involuntarily, followed
" and these latter
setts ;
decisions," said Chancellor
in his
Commentaries,
common
rule of the
"
contain,
2
law,"
is
it
Kent
probable
on the other.
Its
It
money and
he or his assignee
interest, while
may
is
enjoying
fect title."
But
if
had
from
its rise
For
if
go
the covenant
will furnish as
We
see not
why
the grantor
may
vests
the
property
in
the
party
against whom the damages are assessed.
are not aware of any-
We
thing in the
nature
or
of the feudal
in
the
title
investiture,
principles
to land
at
The record
of the recovery
3*
that
4 N.
which
good an estoppel as
from a disclaimer
arises
Hamp.
182, Hamilton
u.
Elliott.
persons
right."
note
4
Hamp.
p. 48,
3.
v.
30
SEIZIN.
seems
to
we
endeavor
is
2
thus deemed an equivalent.
Every
while securing to the purchaser the full
is
it
made
its
to give to the
recovery of the considerationan action on the covenant for seizin, the effect of
practicable,
money
in
such as
title,
it is,
which he
exists.
3
synonymous with possession, 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
as
connection with the possession, but to be confined exclusivethe reason is, therefore, inapplicable to the
ly to the right j
latter covenant,
l
Cushman
In
v.
Blanchard,
of Cornell
p.
Jackson, 3
Gushing,
u
p;ir(Mass.) 509, the Court said,
amount title does not affect a cove-
tn> mid.
in the
feasible estate,
grantee
better
to
r liis
may be
title,
broken, and
So in the recent case
no other"
is
Thus
if
paramount
by him.
The
title, his
damages
amount thus
j>;iid
See supra,
p. 23, 24.
31
SEIZIN.
The
champerty
priate.
was the
delivery of possession
transfer.
of uses,
it
may
essential part of
Such
was
suggestion of
the case of
the
Ilutchinson, Ch.
Catlin
" It is
in
J.,
is
now
the case
ute, if there
sion."
And
Vermont,
a feudal
by virtue of our
stat-
253,
Judge observed,
With
the view to
his
him."
possession adverse to
And
in
v.
should
possession, a larger operation
tual possession,
So
would otherwise be
Gray-
have
remedy."
in Triplett v. Gill, 7 J.
J. Marshall, 436,
it
was
said,
"
had lawful
convey a
and authority to
title.
The champer-
right
legal
32
SEIZIN.
still
some notoriety
in the
transaction,
and perhaps
Soon
Titles,"
Buying
Bracery
since
" Pretended
of
the
made
in affirmation of the
tion of
it
and
all
common
is, it
has added
law before."
1
2
3
27 Hen. VIII.
32 Hen. VIII.
Partridge
v.
law.
c. 16.
c. 9.
Strange, Plowden,
88.
4
" It
is
Duer,
Court
J.,
in
The
and
erty;
1
Hawkins, P. C.
2 Ball
v.
v.
b. 1, ch. 86,
statutory
is
it is
public policy upon which the interdiction is founded, apply with equal
force to every description of prop-
common
Burke
1048; 4
v.
Green,
83
SEIZIN.
statute of uses.
by the
indeed, long
l
ance and stirring up of suits
and the same principle was
applied, as part of the common law, to the transfer, through
the medium of the statute of uses, of real estate of which
;
2
But
possession was not transferred with the right.
before that statute there could scarcely be such a thing as
a transfer of land held at that time in adverse possession.
the
should be effectual,
was necessary
to
if
was
it,
were not
sufficient
but
it
all
requisite
that the
9 Viet,
a contingent, executory, and future interest, and a possibility coupled with an interest in
be disposed of by deed,
do not defeat or enlarge
which looks upon actual maintenance in the same light as the com-
Co.
Litt.
10 Coke, 48.
2
By the recent act of 8
c.
106,
tinge nt,
&
6,
may
pro\ ided
it
an estate tail.
3 Mr. Hare's note
mon
to
Duchess of
When, however,
mode
the
SEIZIN.
of assurance
was
and
altered,
possession,
whom
was made, as
it
in taking
in consider-
it
and
it is
consequently
appears that the conveyance of estates not vested in interest, was void
at law, not as amounting to mainten-
of a
equity, but under the operation
which
forbade
rule
of
policy,
general
Litt.
transfer of future
tates
and
and contingent
es-
It
interests.
maintenance
con's Abr.
tit.
giving occasion to
Co. Litt. 314 ; Ba-
As
Grant, D.
sion,
it
when
posses-
the
seems
distinction
feoffment,
between the
and of a grant
effect of a
;
for a feoff-
ment was substantially livery of seizin, and livery could not be made unless the feoffor
was
in actual posses-
Knox
v.
Jenks,
making
Mass. 488.
b.
to
cle
its
Note
operation."
Am.
Smith's
ed.)
Duchess of Kingston's
to
case, supra.
mode
ment
this rule
48
Stanley
Doe
v.
Jones,
Bing. 369
375
&
v.
Prosser
v.
Edmonds,
Younge
;
son
v.
Hare, 366
Cook
Hunter v.
Wilson
v.
v.
Short,
Field, 15 Q.
Eq.
II.
101.
made
for the
35
SEIZIN.
fact
taining a suit, the mere
1
not invalidate the conveyance.
In many parts of this country, however, the
some
in
32 Hen. VIII.
State,
1
Doe
it
v.
Martyn, 8 Barn.
&
Cress.
Com. 446
v.
;
v.
Bledsoe
v.
466.
r
Fite
v.
Pace, 6
2
1
Doe,
Id.
99
Bowman
McLean, 380
481
Carter, (Ind.)
v.
Nutting,
Wellman
v.
Watham,
v.
Michael
v.
Wood v. McGuire,
21 Georgia, 576.
* Such as
Pennsylvania (Stoever
v. Witman, 6 Binney, 420
Cresson
;
v.
(Danforth
v.
2 Williams,
Streeter,
elaborately considered)
New
Jersey
Peters' C. C.
Perry,
&
9 Viet.
c.
106, supra, p.
106,
"
"
of by deed or will
Carrington v.
Goddin, 13 Grattan, 599, and see the
former statutes of champerty, thus
;
v.
(Lytle
The
Iowa (Wright
472)
v.
(Thomas
Rep. 54)
v.
literally,
497.
2
is
champerty
3
c.
doctrine
and,
it is
believed,
some other
States.
The
utes of
champerty occurs
to be
State,
doubted but that the several English
statutes of champerty were in aid
of, and to supply the defects of the
more ancient general law of main-
tenance
justice.
36
those
States,
common
ly
tenance
when
the
Norman
con-
and
property,
kingdom
fees
had
the
dividing
whole
followers.
The
first
statute against
in the year
1,
ch. 25, 3
Hereby
champerty
(that
to
part.'
*
Edw.
It
I.
is,
appeareth that
unless
the
it
state,'
no
&c.,
maintain pleas,
King
suits or matters depending in the
shall
ing
the
to
Coke, 2
pending
'
Com.
Accord-
commentary of Lord
Inst. 208,
it
is
'
all,
Jones,
Bing.
mentioned therein
were afterwards, by Stat. 28 Edw.
to certain officials
tended to
wit: 'But
it is
not to be understood
may
for a full
I. stat. 2,
which declares
'
that,
Cham-
own procurement,
of the gains.'
tenance.
"By
v.
that
Rep. 377. These prohibitions
in the one ant, confined to the King's
ministers, and in the other, extended
Rep. 129.
I.,
than the
and sue at
e.,
(i.
Chancellor, Treasurer, and other persons named in the act,) purchase bona
to
at
is
wise,
ister of the
officials
have
:
forbidden, the
is
the King's Council, Clerks in Chancery and of the Exchequer, and other
says
estate,)
SEIZIN.
or by others,
Com.
Digest,
Main-
SEIZIN.
effect
is
deemed of
itself
an offence within
law of
persons to
maintenance, forbidding
bind themselves by oaths, covenants,
or otherwise, to move or maintain
'
by letter or
pleas for others, or
otherwise' to 'maintain quarrels in
law/
common
vol. p. 320,)
above
historian, that
'
mer
associations for robbery and violence, men entered into formal com-
liament.'
It
whether
lic
this
maddened
state of
pub-
legitimately
by the crown for forfeitures as escheats, and the regranting of those estates to favorites and
At any rate, such inferfollowers.
ences seem legitimate as connected
tion of estates
enactments in
aid,
Eighth.
this
and
for strength-
VIH.
by
act of Parlia-
'all
on pain,
&c.,
and no person
shall
buy
sell,
by whom he
have been in possession there-
claims,
of,
and
sold.'
38
It
SEIZIN.
to
him with a recompense if such should be the case. If, therefore, an actual seizin were transferred to the purchaser, the
vendor had a right to convey, within the spirit of the champerty acts, and the covenants for seizin and of good right to
It
would seem
that
when
the
to
encourage and
An
same
l
New
Williams v.Hogan,Meigs,(Tenn.)
all
58
189.
The
purposes.
Mitchell
many
89
may
Some
cumstances,
question.
SEIZIN.
difficulties
hand
some blood-
interfered,
judges, appointed by its authority, decided the right of government to be in Pennsylvania, leaving, however, the question of particular titles untouched.
Many of the old settlers
new
of
settlers
under
title
it
still
numbers
remained, and
Law,
the
any one
first
who
it
any person
to
combine
In
Woodworth
bill filed
v.
Janes, decided in
New York
in
title
1800,
to com-
that as there
was evidence
bought with
title,
Act of llth of
Smith's
April, 1795
32
worth
Id.
58
decided after
Wood-
SEIZIN.
sued at law upon promissory notes given for the purchase money of such a title, the Court refused to sanction a
tiff
cision
while in Pennsylvania, the case of Mitchell v. Smith, presenting facts almost identical with those in Whittaker v.
Cone, came before the Court about the same time, and
elaborate
1
2 Caines, 149.
1
Binney, 110.
The reason
ditio defendentis.'
'
immoral or
illegal as
between plain-
ant.
It is
but
The
by accident,
if I
may
so say.
is
this
No
ity,
notes to Collins
collate-
Blantern, 1 Smith's
Leading Cases, 169 Smith on Contracts, 151, &c. for the very object of a
v.
eral principle
" where
by the law.
is
The gen-
well settled
that
and
ut res
honesty requires
it,
234, &c.
645
was
the cases
So
"
champerty
if
after
enridge
;
SEIZIN.
When, however,
perty acts,
would seem
that
in
New York,
and purporting
to con-
who
vey to the
plaintiff,
by
the
The
from
all
necticut
Waters
Eliz. 527;
v.
Brownlow,
Chapter of Norwich,
158. So, too, where the deed is void
2
from uncertainty
Capenhurst
v.
Ca-
369
Litt.
tit.
Feoffment,
Upton
v.
v.
Small, 2
dleton
19; Co.
pi.
Barrett, Cro.
v.
v.
489.
3
Demont, 9 Johns. 55
Peru
Iron Co. 9 Wend.
Livingston
516 Van Hoesen v. Benham, 15 Id.
Jackson
v.
v.
478; Den
v.
of
the covenants
for
title.
nathy
3
Abernathy v. Boazman, supra ;
and such must necessarily have
been the ground of the decision in
Van Hoesen v. Benham, 15 Wend.
165, where the grantor was admitted
J.) 235.
4*
v.
cited approvingly
371
637, and
Ala. 189,
it was expressly held that the deed
was valid as between the parties, and
it
upon the
4
10 Mass. 267.
SEIZIN.
and of
and the
statute in
that State
was considered
to be
and conspired
plaintiff could
to convey a pretended
must be presumed
to
statute
of
New
who
deed
may
be so far
illegal as to
As a
conveyance,
its
Per Sewall,
J.
SEIZIN.
statute, because
traffic
them the
act, and was
in
and although
came
plaintiff
it
directly within
another State or
in
It is distinguishable, moreover,
from the case of Breckenridge v.
Moore, 3 B. Monroe, 629, because
there, although the plaintiff was an innocent holder, for value, of the note,
whose consideration was the conveyance of land in Kentucky held adversely at the time, yet the note was
sued upon in Kentucky, whose champerty acts had been violated
fori,
and the
the lex
sitce
were
and, moreover, it
would appear from the decision, that
the Kentucky champerty act, like the
;
"
Graves
Leath-
has been
it
Nichols
ever,
v.
Chand-
Wills
Paige, (N. Y.) 220
per, 2 Ohio, 1 24
Chapman
v.
v.
ertson, 6
Moore,
Id.
630; Breckenridge
365
liams
CowRobv.
Wil-
Black. 246
S. C.
Al worthy,
17 B.Monroe, 668.
The same
applies to the act of Congress
of 29th of May, 1830, " granting preemption rights to settlers on the pub-
412
541
Birtwhistle
233
ers,
remark
what-
title
toppel.
v.
v.
no
Nichols, 3
Scott
Curtis
v.
465.
S. C. 13
Burrow, 1079
Dow &
Clarke,
Hutton, 14
Vesey,
v.
S.
Vardill, 5 Barn.
C. 9
Bligh, 32
Eng.
Hare,
Law and
Eq. R.
Stansfield,
44
SEIZIN.
from
The
the doctrine of
actual
seizin,
to
appears
connected with
be
It is
this.
seizin of
it
The
cerned,
title,
it is
been recent in
long a time as, under the limitation acts, to have ripened into
It is the existence of the adverse possession
a perfect title.
statutes forbid
convey"
to
which
ally
it,
some variety
American
courts.
The
former, until
ions,
and Holman
v.
Johnson, Cow-
The
this
240, &c.
SEIZIN.
ferred
to.
Where, however, such statutes are not in force, and conconstruction can, consistently with
sequently where no such
be given to these covenants, the duration of the
adverse possession may be an important element in deterprinciple,
Where
for seizin.
tion acts to
for seizin
title, it
2
must be broken.
is
obvious
It is not,
the case if the possession had not endured for the requisite
3
It is certain that the English courts seem
length of time.
to treat
disposed, at the present day,
1
v. Horde,
Leading Cases, 492.
Wilson v. Forbes, 2 Devereux,
in 2 Smith's
2
support of
30.
3
In Thomas
v.
Perry,
amounted
der claims of
Peters' C.
Washington
if the
title
however
defective,
covenant
is
be." p. 55.
(This, it
should be observed, was said without
his title
may
any reference
to the
champerty acts,
in force in
New
Jer-
it,
v.
was "not
seiz-
v.
Croghan, 2
J.
J.
Court
in
cited,
46
SEIZIN.
fee,
without any
to
whereby
appeared that
it
to enjoy possession,
of
the
able
Mr.
Preston, for the
argument
notwithstanding
the covenants did not extend to
plaintiff, it was held that
It
was
Upon
man
decision,
made
leases
were accompanied with actual possession by the leswho had expended money on the property. They
sees,
were, therefore, within the covenants ; and unless the covenants were held to extend to these leases, general covenants
for title
guard against a
to
may
it
They
title
not be a lawful
the
possession,
possession,
the
and the
right
right
of
or legal
title."
1
Doe
Cully
v.
v.
Hull, 2 Dowl.
Doe, 11 Ad.
&
&
Ry. 38
1008;
Ell.
Doe v. Martyn,
8 Barn.
&
Cress. 497;
Vaughan's Rep.
covenant.
They
It is
SEIZIN.
4*7
therefore
to the conveyance,
case was argued upon much higher grounds, and this probnot to give due weight to the above simably led the Court
it."
ple view of
own
for quiet
It is this
to the third
of Title
case from
Hayes v. Bickerstaff.
Sugden on Vendors, 514.
By
St.
ed,
it
was
have existed
at
common
law,
and
as
by
Lord Mansfield, in the case of TaySee
lor v. Horde, 1 Burrow, 49.
opposed
On
these
"
sufficiently testify.
Leonards, as
gives
will
no opinion
be perceivas
to
this,
sprung
and
by an ejectment, had
his opinion
seems to be
48
Yet
there are
many
would
(it
consider this
however, refuse to
as an eviction within the covenants for quiet
Many
authorities,
enjoyment or of warranty and where, under such circumstances, the covenant for seizin is held to have been fully
;
ment
he
seizin, the
purchaser
same
the
The
extent of
seem
to
3
1
Greenby
Morris
v.
p.
Wilcocks, 2 Johns.
AbPhelps, 5 Id. 49
v.
bott
v.
&
25,
Thomas
v.
Perry,
C.
Young
North,
Croghan,
the case;
Howell
v.
Pringle
v.
see
DWight,
v.
v.
Peters' C.
Baker, 5
v.
Woods
Hastings
Witten,
Martin
v.
Pollard v.
Rep. 57
Cranch, 430 Fitzhugh
note;
310.
Gray
v.
v.
llaincock,
Com. Bench,
SEIZIN.
49
amount to an indefeasible
not marketable, would only be because its
sion
would
itself
title,
which
if
was a
validity
nants for
title is
if
the law
of real estate, the student will be constantly led into pracThe law of real estate is an abstract and
tical difficulties.
acknowledged, that
subject, not to
it
is
In part
this system.
it
is,
as
subject to
it
its
But
were, collateral to
and
in
part
intention of the
rules,
parties as expressed
To
it is
title
certain
no more than
practically
that
in
cases
of
difficulty,
the
But while
purchaser
Wilson
v.
into,
50
that intention,
is
when
and that he
seized,
SEIZIN.
will
effect,
ex-
to
obtain
possession
the
in
instance.
first
The
want of present possession is a defect which can be discovered by immediate observation or inquiry, and it is not
a defect against which a purchaser usually seeks to protect
Not
himself by a covenant.
a defect in the
so, as to
title.
An
by the
plied
civil
But possession
and such,
it
is
is
believed,
common
the
who
understanding of
There are several questions connected with the covenant for seizin, whose consideration, however, seems more
Thus the capacity of an heir
proper under other heads.
or an assignee to take advantage of this covenant will be
considered in the chapter on " the extent to which cove-
nants for
title
At
least
such
the
is
common law
of this country, and it was so considered by the profession in EngIn a very recent case, howland.
ever,
in
(Morley
500,)
it
the
v.
Court of Exchequer,
Attenborough, 3 Excheq.
was held
that
implied warranty of
title
thtere is
no
in the con-
a personal chattel,
In a subsequent case, however, the
Court of Queen's Bench seemed by
tract of sale of
no means prepared
to
adopt
this
Simms v. Marryatt, 1 7
7 Eng.
Queen's Bench R. 281
decision
Law &
2
Eq. R. 336.
Chapter VIII.
51
SEIZIN.
made a
by
title,
question, whether
the
deemed an
surance
of the
the question
title
existence
resolves
of that
as-
Abstractly,
quantity.
itself into
is
considered
It
is
well
that
settled
the
is
not
Thus
veyed
the existence of a
is
no breach of
this covenant,
since
it
2
3
483.
Chapter IX.
Chapter X.
Jones,
Tuite
shall,
v.
Miller,
10 Ohio, 383;
Fitzhugh
lenback,
v.
Johns.
380
Lewis
v.
SEIZIN.
payment of the
debt.
If,
had
breach
will,
life estate,
outstanding
was held
to be broken.
having passed to her grantee until disaffirmance by her after majority, 6 there could therefore be no
that the
title
no such land
and
the covenant has been held to extend not only to the land
itself but to all such things as should be properly appur-
Thus in
and pass by a grant of the freehold.
the
a recent case it was held to be broken where
grantor
tenant to
in
it
it
having
seizin
the
entered,
covenant
for
Comstock
v.
22 Vermont, 106.
Smith, 23 Connect.
352.
4
567.
Morrison
v.
Me Arthur, 43
Supplement
(N. Y.)
grantor
2 Mills v.
Catlin,
3
Maine,
is,
to
Hill
&
Denio's
R.
The
minority of the
however, a breach of the
260.
(Mass.) 212.
53
SEIZIN.
plied
and
As
in other parties
by the conveyance.
in an action
respects the pleadings
this cove-
upon
nant, it has been settled from an early period that in assigning the breach of the covenants for seizin and of good right
to do more than negative the
to
it is
unnecessary
convey,
had
full
power
to convey,
it
the
in
stranger to
what
it
estate he
to
show
case,
a freehold,
it
this case
to
in
a conveyance of
"because the
his
all
to
distinguish
plaintiff
was
ought
seized, in
writings concerning
was with
But
writings."
who had
not the
Mott
v.
Palmer,
West
v.
Coinstock, (N.
for
Coke, 60.
Glinnister
mond,
5 *
lessee
Y.) 527.
State R. 122.
the
this distinction
14.
v.
Audley, T. Ray-
SEIZIN.
As
a consequence of this, it is well settled that in an action on the covenant for seizin it is
unnecessary either to
aver an eviction in the declaration or lay any special dam-
age.
for
place,
mount
tion, as well,
Nor
is
it
3
perhaps, as the results which it has caused.
necessary that in a suit upon the covenant for
plaintiff
New
Clark v.
Fromberger, 4 Daft. 436
McAnulty, 3 Serg. & Rawle, 372;
statute,
Blanchard
Ohio, 526.
Marston
Wait
v.
v.
v.
Maxwell, 4 Pick. 88
Bacon
pealed;
ford
Collins,
2 Nott
Lot
Rickert
v.
v.
It
v.
local
opposed to
Abbott
v.
Bird
4
v.
The
statute, as otherwise
Mackey
re-
Neil,
v.
&
note
Robinson
see
v.
Marston
Abbott
Platt, J.
v.
v.
"
is
55
SEIZIN.
is
incumbent on
who
defendant,
the defendant
may
;
in
known
to the party
more general
aspect,
and,
is
multifarious.
The
stract.
is
an indefeasible
title
may
It
is,
question
title,
is,
As
in
an
Blanchard
v.
56
of warranty,
who
plaintiff,
in ejectment.
the
in
is
the paramount
it
cast
is
upon the
first
with
title
SEIZIN.
all
how
It is doubtful
such a rule
far
On
seizin.
applicable to actions
is
hand
the one
it
would seem
he
is
bound
of his covenant.
1
Thus
in
Kennedy
On
v.
Newman,
and
did not, step by step, prove the regularity of proceedings under a minis-
session.
by which
to
his title
be the law
v.
" It
is
Ordinarily
the
issue
terial jurisdiction
it
ant has
all
Hence
the onus
probandi
lies
upon the
which he
is
supposed to be cognizant.
clausum
fregit. 1 Stark.
In Ayer
v.
same rule
is
recognized as applicable
to all cases,
nothing essential to the action is required of the plaintiff, and when the
upon
lies
The
the jury.
that he was lawfully seized of the
who
has
single
point in
premises.
Upon
controversy before
defendant pleaded
this
he
was for
as it would
question
;
it
it
extremely
SEIZIN.
57
enantee, to
make
in suing
prove the defect with the particularity required
on the other covenants, he cannot throw entirely upon his
title
Few
covenants for
was
first
title.
From
superseded by
time, comparatively
little
is
to the title
sively
tive merely,
difficult,
may have been excluunder the control of the deIf he had title at the time
fendant.
the deed declared on was executed,
he could easily have shown it and
if he had no title, the covenant was
;
or prove
and
any
outstanding
is
fact in regard to
title.
from
his
an
The
shift
the re-
own
shoulders
broken, regardless of any third person who may have had the title.
err in deciding that the onus probandi lay upon the defendant." So
averring generally that the defendant was not seized, went on with
We
in
was obliged
to
prove
his seizin
when
it
will
after
con
212.
v.
58
SEIZIN.
endeavor to
afford in each case a full compensation for the injury sustained, are so varied as in
1
But on
trary.
this
some instances
to be almost arbi-
its
by
be hereafter
will
seen
with
that
regard to
the cove-
action
is
the standard.
The
it.
for seizin
seems
have been
circumstances,
fall
damages on a covenant
first
in
in
Pitcher
v.
6
Livingston, consistent assent has been
given.
It is
1
elsewhere remarked
Dam-
That
evidence
some
is
shown
(infra,
admissible to show
diversity of opinion
deed
that
is less
3 Caines, 111.
5 4
Dallas, 436.
6 4 Johns. 1.
7
named
in the
SEIZIN.
was
it is
be,
However
in their place.
this
may
perfectly
to he that existing at the time the
Ab.
Brooke's
Recouver
sustains a loss
money can do
to
it,
rea-
by
Thornhill, 2 H.
Black. 1078, has in several instances
been cited as a direct authority for
case of Flureau
where a party
is,
so
be placed
damages
common
contract for the purchase of real estate, to which the vendor was (with-
this position.
make a
title,
to
the
dam-
ages
as settled
on
Sugden
State R.) 22
S. C.,
more
fully re-
Thompson
Allen
Anderson, 2 Bibb, (Ken.) 415.
"The
rule
of
the
man,
common
Robinson
Exchequer, 850,
"
v.
is
make
fail to
a good
may be put
title."
An
to in investigating the
grafted
Harman, supra
Wharton,
(Pa.)
Lee
331
v.
;
Dean, 3
Bitner
v.
law,"
justified or
Har-
Pounsett
that
he
ing, that if
title
v.
explained in principle
60
no increment,
from the
either
ventitious means, or
SEIZIN.
rise of the
property by ad-
it.
In Staats
v.
rise
in-
The want of
title
usually originated,
it
if
a vendor were
town
in its neighborhood.
The common-law
doctrine
to,
and
the measure of
tion
and
money paid
it was deemed
proper
profits,
;
mesne
ficial
was correctly
v.
the
plaintiff,
J.,
delivering
the
opinion.
2
As
to the
see infra.
allowance of interest,
61
SEIZIN.
This case was, in the ensuing year, followed in Pennsylvania by Bender v. Fromberger, where a special verdict
was found for the plaintiff, subject to a reduction if the
1
on behalf of the
seems
2
plaintiff,
plaintiff
to
that the
by the Court,
where
it
was held
were
new
to
much
was
as
at the
time of making
therefore,
was
was held
modern covenant.
4 Dallas, 436.
4 " It
tinued Tilghman, Ch. J., who delivered the opinion, " that the true meas-
But
commencement of whose
ally.
eminence
professional
dated from this case, as
that of
Ackroyd
enant
may
SEIZIN.
the
plaintiff'
was
on the consider-
allowance of interest,
was
it
held, that
Eyck.
have
It
suffered
to
a much
in
greater
counsel, in
its
utmost latitude,
Pennsylvania and
the prevailing
in
Ten
Massa-
among
opinion
the
The
case
making the
of
Staats
v.
referred to in the
cessive mischief.
sel
this
it
would be unreasonable
damages
to the
to
extent of the
give
loss
been erected.
of land, not
can hardly be
supposed any prudent man would
undertake to answer the incalculable
damages which might overwhelm his
family under the construction contended for by the plaintiff. I have
States,
is
such that
it
American Revolution
and
think
said
by
New York
Eyck. It
must be observed also, that the South
Carolina cases were both actions on
covenants of warranty and not on
the covenant for seizin, and the distinction between the measure of damages on these two covenants is still
recognized in several of the States,
4 Johnson,
1,
decided in 1809.
As
unquestioned.
buildings or otherwise, he
ment, by
63
SEIZIN.
was worth
who
receives in value
and
may
It was the
have entered as an ingredient into the bargain.
land and its price at the time of sale which the parties had
in view,
and
of the contract
to the
See Marston
Hobbs, 2 Mass,
v.
warranty."
3
members
of the
Court concurred.
433.
Some
v.
376
v. Willson, 5 Foster,
(N. Hamp.) 234 Mitchell v. Hazen,
4 Conn. 495; Sterling v. Peet, 14
;
Willson
Id.
234
Whiting
v.
Nissly,
Har-
Tapley
v. Lebeaum, 1 Missouri, 550
Martin i>. Long, 3 Id. 391; Wilson v.
Forbes, 2 Dev. (N. Car.) 30 Logan
v. Moulder, 1 Pike, 323
Bacchus v.
McCoy, 3 Ohio, 211 Clark v. Parr,
ris,
argument
Van
to those
Ness,
J.,
14 Id. 121;
Cummins
v.
Kennedy,
Swafford
v.
Whipple, 3 G. Greene,
04
SEIZIN.
in question
and
time of eviction. 1
at the
It
may
Although
it
was remarked 2
in
Pitcher
v.
Livingston that
"
if
any imposition is practised by the grantor by the fraudulent suppression of truth or suggestion of falsehood in
relation to his title, the grantee may have an action on the
fpr seizin
tor in a
conveyance of property in
testa-
New
for
known
statutes
as
claimant law," by
cases, the
to
pay
to the
value of
" the
occupying
which, in some
all
permanent and
mer
shire
New Hamp-
enant of warranty.
Notwithstand-
the improvements.
Baylor,
v.
is
if
improvements
1239.
The
rapid increase
in a
of improvehas led to
new country
the passage, in
some of the
States, of
See statutes of
Hart v.
ments
lasting
2 Story's Eq.
By Van
Ness, J.
799,
was
it
also said
Bender
in
v.
and although
Fromberger, that "if the
to
65
SEIZIN.
make use
seller
of a writ of deceit
is
an obvious one.
deemed
deed
is
to be
primd
Where, however,
time, as thus expressed by themselves.
no such consideration appears, the value of the land must
be ascertained from other evidence.
But
the consideration
as
is
thus
deemed
to be
primd
384
Harg.
a,
tit.
&
Warranty
Fonb. Eq.
a defence to payment of
the purchase-money of land which
had been sold with fraudulent reprey.
its
quantity. See
6*
v.
souri,
sentations as to
Smith
ley
Lee
Litt.
v.
Lebeaum's Executors,
(Ken.) 118
433
v.
TapMis-
Kennedy,
Wilson
v.
Forbes,
Some of
Rowntree
2 Mass.
Cummins
550;
Sampson
r.
v.
66
SEIZIN.
consistent with any part of a statement in a deed, such reluctance seems to have been much overcome in this coun-
and
try,
well settled
is
it
by American authority
that al-
all
question of fraud) evidence to exthe
consideration
is inadmissible if introduced
or
vary
plain
either directly or indirectly to defeat the conveyance (as
it
by showing
on a valuable
not founded
because
void,
money was
paid, but
is
only primd
the
which
of
evidence
amount,
facie
may, by parol proof,
2
606; Baker
v.
Dewey,
Barn.
&
Cress. 704.
1
502
89
As
;
in Wilt
Franklin, 1 Binney,
Farrington v. Barr, 36 N.Hamp.
v. Soper, 6 Harr. & Johns.
u.
Hum
v.
Hall, 9
Wade
v.
Gill
&
Johns. (Md.) 91
Merwin, 11
v.
Tirrell,
Id. 288;
20 Pick. 247
Clapp
McCrea
v.
Packard, 10 Vermont, 96
ham
Bing-
&
Bolton v. Johns, 5
Rawle, 131
Barr, (Pa.) 145 Higdon v. Thomas,
Hender-
Cole
v.
Harr.
&
Gill,
v.
son
i?.
But
son
2
v.
Bullard
v.
Briggs,
Pick. 533
(S. Car.)
Briggs,
is
ahan
v.
approvingly quoted
v.
Cartledge,
(Pa.) 399.
bridge
Watts
Mon-
Straw-
&
Serg.
SEIZIN.
effect
is
of
the
to estop the
only
consideration-clause
it
is
open
to ex-
deed was merely to prevent a resulting trust to the grantor, the clause
being merely formal or nominal, and
rule
Parker, Ch.
7
533
Pick.
"
:
or less than
is
expressed in a deed
parol evidence as
may be proved by
Belden
proved."
language
"
Whenever a
right
is
ent consideration,
appear
v,
dence of a
fact,
and not
as evidence
or a covenant in
writing, so'
far as they transfer or are intended
to
will,
be the evidence of
rights,
cannot
v.
differ-
may
earlier cases,
later ones,
be
and
which
Anulty, 3 Serg.
Harris
valuable,
Hayden,
ley
and common-sense
if
merhorn
employed for that purpose, parol evidence is inadmissible to alter or conconstruction of the instrument; but
any writing which neither by con-
and even a
Briggs,
consideration
The
but we think it
sive upon this point
has been reasonably settled that this
matter is open to evidence. More
the consideration
v.
down by
laid
Bullard
J., in
Maigh-
Steele u.
v. Hauer, 7 Id. 342;
Clark v. McAdams, 1 Greenl. 1
;
&
for the
inclined to
a different
But
now
it is
not
conclusion.
necessary to decide
" I
submit, however,"
the question."
legal construction
by facts aliunde.
and other writings which
only acknowledge the existence of a
simple fact, such as the payment of
money, may be susceptible of explanation, and liable to contradiction by
So in Massachusetts the
witnesses."
But
receipts
is
68
As
a consequence of
this,
SEIZIN.
it
show
is
admissible on
was paid
for
at the
is
it
though
it,
same time
tion of
is admissible
solely in mitigafor the purpose of negativing a
and where,
in
whether as
and
serted as
to rights or remedies ;
in the sister States of the Union
ages, 178.
taken
inadmissible
goes to destroy
the efficacy of the deed as a conveyance.
is
304
(Mass.) 26.
2 Morse v.
229; Harlow
70
if it
Bingham
Shattuck, 4 N. Hamp.
v. Thomas, 15 Pick.
v.
Weiderwax,
Corn-
Swafford v.
(N. Y.) 514
Whipple, 3 G. Greene, (Iowa,) 267
Martin v. Gordon, 24 Georgia, 535;
Cox v. Henry, 8 Casey, (32 Penn.
stock,
State R.) 19
Moore
v.
McKee,
(Miss.) 438.
In
Hawkins, 2 J. J. Marshall,
it
seems to have been
(Ken.)
thought that where a consideration
Yeltori
v.
2,
56 instead of
in-
43, evi-
dence would not have been admissible to prove this as a defence at law,
but that relief could be had in equity.
In Coger v. McGee, 2 Bibb, (Ken.)
of
time of
others that
it
meant an agreement
to
Barnes
Nutting
v.
v.
127.
*
264.
Nutting
"
v.
Herbert, 35 N.
Hamp.
not be
SEIZIN.
69
take
no consideration named
is
this
in the
they seem to
some way
deed or in some
It was
as easy to except the claim on the
outstanding mortgage from the covenant of warranty as from the covenant against incumbrances, if such
was the understanding of the parties.
But nothing is clearer than that the
in
in the
was inadmissible."
actually paid
Per Metcalf, J.
point that parol evidence is inadmissible to prove that a certain
The
was paid for them, for the reait was known and understood by the parties that they were
not to pass by the conveyance, was
competent and admissible on the
Porter
(Me.) 177
Collingwood v. Irwin, 3 Watts, (Pa.) 309
Suydam v.
Jones, 10 Wendell, (N. Y.) 184. See
ation
son that
it
to
sold, that in
fact, it
Per Fowler,
1
damages only."
J.
Eastabrook
'
agreed
22
field,
infra,
against incumbrances.
2
Smith
128.
the
v.
It will
Strong, 14 Pickering,
be remembered that
remedy upon
analogy to
Smith, 6 Gray,
(Mass.) 578. "If, as the defendant
offered to prove at the
trial, the
plaintiff
v.
to take the
prem-
mortgage,' then
that agreement should have
appeared
consideration
named
in the
deed was
70
SEIZIN.
move
directly
conveyance of the
land is the result of a negotiation in which a third party is
concerned, the real consideration which moved from the
that which he actually parted with in order to
must be sought from all
acquire the title of the grantor
the circumstances of the case, and the damages measured
grantee
accordingly.
An
will
be found
in
Byrnes
v.
"The
Rich, 5
rule of
damages," said Shaw, Ch. J., who delivered the opinion of the Court, " is
perfectly well settled in this Com-
monwealth
it
is
We
by the grantee
which
is
the most
The
agreed to receive of
one Leighton, a certain lot of land
plaintiff
and
plaintiff in
evidence aliunde.
Nor
is it
the
sum
amount of the note which the plaintiff agreed to surrender and release
Leighton as the consideration to
be by him paid for the land. That
may have been a security of little
to
given
It seems therefore to be a
stranger.
case to which the ordinary general
rule cannot apply, and which must
be determined according to its particular circumstances upon the general principle applicable to breaches
of contracts
siderably so in
warranty
he executed
it
according-
Leighton,
who
delivered
it
to
the
is
Smith
v.
its
facts,
to that
Strong, 14 Pick.
128.
of
It
if
the con-
SEIZIN.
7*
the grantee, instead of abandoning his purchase, has elected to buy in the paramount title, his damaare, within the limit of the original consideration be-
So where
ges
tween his covenantor and himself, measured by the amount
of the consideration which passed from him to the holder
to that
was a
tion
1
;
certain
sum
of
money and
title,
it
was held
that the
damages
must be measured by the original consideration-money between the covenantor and covenantee, there being no evidence
show
to
seizin,
part
operated to give title to the grantee, then the value of the part, the
title
to
which
failed,
with interest,
infra.
1
Spring
Dimmick
v.
142; Foote
Cox
v.
v.
v.
that the
plaintiff to
ment was
to
bar to the
plaintiff's
he has refused
mount
title,
recovery that
to
for
480.
Lawless
Collier
v.
Collier,
had
19 Missouri,
SEIZIN.
Mills
title to
for the
to
signment
Lawless of
his
the
as-
(Gam-
suit
upon
name
of
less.
estate
est,
on writ of
liar
"
error.
Under
the pecu-
was by
to
It
subsequent
conveyance, that his
Lawless'
title was
What
perfected.
had Gamble then to adopt a
course of conduct which would have
vendee's
right
been assigned
of Virginia
to
him
In so doing
he would have injured the plaintiff',
and have destroyed a part of the
consideration he had given to LawLawless.
claim.
Would
have been
liable
Stoddard
Gamble
then
to Virginia
Law-
not
of the right
fit.
to
Scott, J.,
"
what
is
ges ?
chase
Can
it
ion,
Lawless
is
secure the
or possession of his
title
Such an
assertion
is
not warranted
We
worth the
were given
to secure.
He
did not
convey
that
full
to
His conveyance of
itself
did operate
whilst performing
an act dictated by
Is it not
obligations to indemnify.
just, that Collier should refund
more
the
in
the Stoddard
SEIZIN.
terest, is
cir-
this covenant.
the purchaser
any
would be obviously inequitable that the latter
should be entitled to have his damages measured by the
consideration-money, and while receiving them, still retain
stances,
it
Thus,
if
We
claim.
know
not
how
known by which
those
No
if
rule
of,
question but that the said consideration and interest is the true amount
but
if
in Collier's deeds,
it is
meant the
has remained
he remains
if
evicted,
as-
he
shall
eration
in
possession of
has not .been ousted or
an important question,
recover his said consid-
is
money and
interest, while
he
the
This
the
'
for nie
covenant for
seizin,
Abridgment, (Vol.
respect to the
4, p.
340,)
" In
amount of damages,
7
so
retains
land."
is
wards
SEIZIN.
it
tionable
lowed,
whether, if only nominal damages were then alanother action could be sustained upon the same
when
the actual
damage
had happened.
This would depend
to the covenant.
1
Wilson
v.
If,
Forbes,
Devereux,
Smith, 2 J. B. Moore,
162.
The
Somer-
liams, 2
ville v.
Ryan
v.
v.
At water,
Turnpike
Markham
1259, the
judgment
Id.
431;
Co., 1 Connect.
Canaan
1.
In
Middleton, 2 Strange,
defendant had suffered
v.
to
one penny.
stances of the
Under
the circum-
case, the
Court or-
remarked of
this case, in
Seddon
v.
Tutor, 6 Term, 609, in another action the plaintiff would have been
had
stood; and the same remark was
made by Park, J., in Godson v.
barred by that verdict,
if
it
Fairfield,
Ch.
J.,
recovered.
Still it
is
admitted that
nants.
The
plaintiff's
proper course,
Mass. 263.
broken,
if at
therefore,
"
all,
as
for
seizin
soon as
single, entire
it
SEIZIN.
to
is
is-
be
made,
and perfect
Jo
considered as
and
its
in the first
breach,
instance,"
it
upon
tained
If,
therefore, in a case
the possession
for seizin,
to this
doctrine
see
zn/ra,
payment of the
On
principal and interest due on it.
this covenant the vendor sued and
the
been compelled
the
to
liable,
it
on a covenant
any
when
consideration
retains
As
to sue
still
it is
but nominal
his
vendor
estoppel.
for-
The
the agreement
had been intended as an absolute
and unconditional promise to pay to
the vendor the principal and interest
if
may
occur,
it
But
if,
agree-
to follow that
if,
are to be measured
made by which, on
vision should be
SEIZIN.
their
payment by the
that
it is,
be
to
little
restrain
It
As we understand
the law,"
ficient in
in
grantor
The
grantor may have honestly purchased the premises and taken posafter his sale
his grantee
taken possession.
The
first
grant proves defective, but he
in whom is the legal title does not in-
session;
may have
terfere.
will
is
covery
is
legislation.
might provide
for
the re-
This presents a
had.
subject for
whom
go
fit
statute
right
or from
lection
tice in
within
2
whom
of Utica
v.
Mersereau, 8
two
M'Kinney v. Watts, 3 A. K.
Marsh. (Ken.) 268.
4 Parker v.
Brown, 15 N. Hamp.
" If the
188.
grantee," said Parker,
Ch. J., in delivering the opinion of
the Court, " recovers damages for
the breach of the covenants of seizin,
may
if
he chooses,
whom
against
We
are not aware of anything in the nature of the feudal investiture, or in the principles which
sessed.
regulate the title to land at the present time, that should require a different rule in relation to real estate.
The record of
it."
Bank
decided in
as
SEIZIN.
77
made by a
cove-
decisions which
proceeded
recovery of the
nantor.
ilton
v.
4 N.
Elliott,
Hamp.
re-enter
if
782.
they
So
right."
in the
of Johnson
v.
the Court
seemed
be of opinion
that had not the defendant been deto
faulted he
jected
a sufficient
and
then
title
said,
to the plaintiff,)
" It
may be a
whether the
plaintiff by
taking judgment for damages, may
not endanger his title to the prem-
question
ises."
l
Porter
son
v.
v.
Hill, 9
Sumner,
Mass. 36
Id. 150.
Stin-
"It would
grantee
money
breach
upon an alleged
of covenant
that
nothing
has
It
(Porter
v.
lately
Hill,) that
be inoperabeen decided
to
7*
same
principle."
Such
result
deny the
title
of the plaintiff
if
he
ment
in
this
suit will
be a perfect
bar to the plaintiff and those claiming under him. Porter v. Hill, 9
Mass. 34."
that a
itself
It
effect,
78
however,
If,
it
is
to be
SEIZIN.
considered as at
all
doubtful
whom
from
its
or
a re-
until
judgment
It would,
conveyance were made to him.
perhaps, be a
matter of prudence for the purchaser to offer such a recon2
veyance before, or at the time of the trial, although it
would be no bar
which
Catlin
Burnham,
v.
Williams,
Blake
(Verm.)
437.
2
Alexander
275
v.
Schriebner, 13 Mis-
where the
title
is
defective within
thority
In
the
first
edition,
so.
however, the
"
But
no authority is cited for this proposiat any rate if an action were
tion
criticism
Dart on Vendors,
recovered."
(1st
ed.) 374.
3
Bender
437, note
329
Lot
(N. J.)
Fromberger, 4 Dallas,
v.
Ives
299
v.
Miles, 5 Watts,
Thomas, Pennington,
v.
;
Lawless
v.
Collier's
Bottorf
v.
veyance
was
of no
value.
The
that the
grantor
might have been seized of a lesser
estate and that there was no offer to
plaintiff objected
the
SEIZIN.
79
There
effect
by
to the covenantor.
might have conveyed."
such cases
in
Apart from
this, it is
purchase-money, mere
is no defence to its
for the
tion
For
absence of
title
payment
first
In the
it
edition of this
work
it
be-
it is
first
passage above
quoted did not correctly express the
law, and
ond
it
was omitted
Missouri came
v.
up
again, (Lawless
19
Gamble,
supra
in the sec-
edition.
The
the passages above quoted was referred to, and the case decided ac-
would
in general
technical
be allowed.
rule,
at
all,
damages only
is,
as
if
the
more
than a technical one;" Rawle on
Covenants for
ceipt will be, subject to the exceptions hereafter to be noticed, to revest the title such as it is in the
the
respects
to
recover
until
the
damages,
little
estate
it
had
covenantor.
It
may be remarked
v.
of
McCollister
above referred
hizer
adopted the doctrine held in England that the covenant for seizin is
and
The
treatise then
v.
" Cases
went on to say
of course occur in which
the purchaser may have
:
may
although
paid nothing to buy in the paramount title and may still be in pos-
to,
that the
Court of Indiana
seems
Supreme
to
have
the breach
until actual
supra, p.
VIII.
damage
and
75,
suffered.
infra,
See
Chapter
80
shown
that the
consideration,
were
SEIZIN.
to vest the
whole
title in
title.
There
will
title
which
is
within
the scope of that covenant, such after-acquired title immediately enures to the purchaser or those claiming under him
In a subseestoppel.
is
attempted to be shown that the acquisi-
quent chapter
it
tion,
to
The
to
to
firmly established in
many
its
conse-
quence, it has been held that although the purchaser's covenant for seizin may be broken, yet if the vendor have subsequently acquired the outstanding title, which enures by
estoppel to the purchaser by virtue of the covenant of
260
Baxter
;
Bradbury, 20 Maine,
(see the remarks on this case,
v.
in/ret, p.
81)
Missouri, 848.
Reese v. Smith, 12
This rule has some-
Thus
in
McCarty
v.
Leg-
purchaser
decision
subsequently
81
SEIZIN.
of
depriving him
in other words,
received from him ) ;
same effect as an injunction restraining
2
ing at law upon the covenants.
From
it
an easy transition to hold that even although the after-acquired title may not, from peculiar circumstances, absolutely pass from the vendor and enure to
the purchaser under the operation of estoppel as thus applied,
this, it is
and tender
to receive
it,
it
on
his
covenant for
seizin,
and a
defendant
but
Supreme Court
it
that
was technically
Thus
in
Maine, 262,
plaintiff,
Baxter
it
that
suit brought.
v.
Bradbury, 20
that
he was not
but
compelled to receive the title
the Court held that, "by taking a
;
general covenant
of warranty, he
his
compel him
8
damages.
to,
but secured
to himself all
ment of the
action,
which
the
acquired
it
good
right to convey,
against incumbrances,
and of war-
money, against
his devisee.
his
The
in
bought
because
his
who
it
to
refused to accept
damages would
be,
ow-
SEIZIN.
it
complainant has
quired
title,
that
Court,
"that the
suit at
law
1st.
To compel
from collecting
his
judgment
at
law.
to the
will
no argument
to
title, it
needs
doubt but that title would have passed from Smith to his vendee, Reese,
and that if this had taken place before the trial of the action on the
is
and
it is
seizin, is to
be
recovery in that suit would not prevent the covenantee from suing the
next day upon any other cove-
of
all
He
is
en-
the cove-
nal
this
the
covenantee
has
elected
But a court of
any court ?
Would
a court
And
can
it
make any
difference, in
83
SEIZIN.
has been through the personal representative, and not through the cove-
nantor himself.
It
is
the act of
God
is
not,
covenants of general
warranty and
Ward and put him in possesand having obtained a judgment against him for a part of the
title
to
sion,
whereby
perpetuated,
compelled
take
to
Ward was
the
title,
and
damages
have seen,
not
is
at
so.
law,
Even
this,
we
in exec-
usually
seizin,
and
for
fur-
ther
any subsequent
"
The
to his
v.
Ward,
lieu thereof.
This
is
And if this
changed.
be done in executory contracts,
there is much more reason why the
materially
will
conveyance.
case of Cotton
performance in
From
this
of the three
"
dissented.
The defendant,"
said
84.
SEIZIN.
to
agreement.
They ask to compel the defendant to give up
his claims under a deed executed seven years before the bill
was
The executed
filed.
mean
sufficient
to the
Ward
which, in
to
opinion, are
my
of equity.
If relief is granted in
then in every case of the
recovery of damages for a breach of
the covenant of seizin, the vendor
this case,
at his option
may
procure a
title
or
as the
first
come
This
to him.
carefully stated
in the decision, in which the Chief
" Ward had
Justice says
himself
gave
is
it
was
In
had appealed
and asked that
finally heard.
time, Cotton
same
tribunal,
by the concurrent act of both parties, the Court was put in the possession of the cause, and required to
exert its jurisdiction and whatever
room there might be to doubt, as to the
;
plainant^
which
in
is presented, there
certainly can be no doubt that the
Court should decree a specific per-
this
case
85
SEIZIN.
This is sought to
should repay the consideration-money.
into
a
contract
turned
he reconsidered and
hy which, if it
should ever turn out that they were not seized, they might
either repay the consideration or procure a good title to he
It would have heen a little more plausihle if
there were a semblance of mutuality ahout it, so that the defendants might have coerced them to procure a good title on
conveyed.
times the price which the defendant paid for them, then
the defendthey could set up the outstanding title, deprive
if
any
failure of title
had
State.
Bingham
stock, 513.
one
same
v.
Weiderwcix,
The
facts
Com-
were these:
Van Buren
this
articles
of
pie,
poradon
to
tors executed a
afterwards dissolved.
ises,
went
men-
Van Buren
paying
86
SEIZIN.
reasoning, and in Massachusetts, where the doctrine of estoppel already referred to has been carried to its greatest extent,
and
in 1843
sold,
when
his adminis-
trators
bill for
this suit,
a perpetual injunction of
on the ground that at the
ties
to pass the
title,
and
that the
prem-
demurrer to the
the mortgages.
bill was overruled by the Vice-Chancellor, but the Court of Appeals reversed this de6ision, and Jewett, Ch.
delivering the opinion of the
said " The bill concedes that
J., in
deed
in their
Van
to him.
Buren's
Hamilton
72
v.
McCarty
It
?;.
and
com-
Court,
the title to the lands was not con-
Van
tinued, until
How
its
then can
dissolution in 1840.
it
be said that
or the
title
Van
thereto
to
paid
it,
him or
it
on
dissolution to
He would
have
his covenant,
take
his
kept,
and
may compel
Equity
the deed.
parties to exe-
make agreements
to
for
them,
And,
power
it
land or
and
had
its
sale
title
by the foreclosure
At
cause, the
that
title
It
dissolu-
tin re
1
hc-irs,
SEIZIN.
87
new
title
grantee it
cause the case does not require
after eviction
elect
might
of this
grantor be estopped to deny it, we place the decision
land
has
of
where
a
deed
that
case on this precise ground,
been made with covenants of warranty, and the grantee has
being no provision in
charter or
its
any other statute to avert that consequence upon its dissolution. Angel! & Ames on Corp. 128, 129
2 Kent's Com. 305.
in
"
At
all
events, the
bill
shows the
the
title to
their lands
was saved
in
Van Buren,
by any
means have acquired it under the
agreement and deed, even if he had
paid the mortgages subsequently and
before foreclosure and it is not set
up that he had agreed to pay, or that
;
knew
neglect of
Van Buren
to
pay the
Blanchard
v. Ellis, 1
Gray, (Mass.)
course the same reasoning
applies to the covenant for seizin.
"
do not seek," said Thomas, J.,
199.
Of
We
" for a
opinion,
better illustration of the soundness of
this principle
than
is
furnished by the
The
Van Buren
land, for
which
fifty
thou-
88
SEIZIN.
upon a
total
breach of
this
and the
had no
He
The
by deed.
He
He
estate.
many
of the
para-
title
own affairs
or the con-
title
to
land
would be entitled
highest consideration,
were not conclusive.
if,
to the
indeed,
it
But though
sideration
money, or by indirection
to reconvey the estate.
We say an
The ground
date to the grantor.
taken by the counsel of the defi'iul-
to
nants.
It is
the
estate,
if
ant,
89
SEIZIN.
was held
it
in
it
plaintiff,
to
deduce from
by
The
discharged the incumbrance.
Court in the case of Baxter v. Brad-
was
not,
broken
In
Wace
v.
"
;
this
784, S. C. 19 Lond.
child of the
that case
this
would lead us
to infer that
made without
and distrust.
The
now under consider-
some misgiving
precise question
ation was not before the Court,
what in that part of the case
enured by estoppel,
it
and
was
was indebted
sum as would be
make up from its income
settlement in such a
sufficient to
it
infant filed a bill against the executors of his grandfather, praying a de-
has
title
which
in
son, to trustees,
is
no
produce
the
stated."
annum.
126.
8*
Guthrie
prayed
would
v.
Pugsley,
12 Johns.
90
SEIZIN.
deducting the value of the life estate from four sixths of the
purchase-money, and without interest, as there was no one
upon the
to call
a tenant for
life
the
plaintiff' for
mesne
So where
profits.
purchaser was held entitled to recover the consideration money, deducting therefrom the value of the life
in fee, the
estate,
without interest.
same reason as
The
in
upon a
failure of title in a
spe-
part of the subject of the sale, either party may, for the
purpose of affecting the damages, produce evidence to show
cific
the relative value which that part bears to the whole, and
3
this, as was said in Morris v. Phelps, operates with equal
"
justice as to all the parties to a conveyance.
Suppose,"
was
and
it
should after-
wards appear that the title to the stream with the improvements on it failed, but remained good as to the residue of
the land, would it not be unjust that the grantee should be
limited in damages, under his covenants, to an apportionment according to the number of acres lost, when the sole
only the
if
title to
would
feel
Tanner
v.
Livingston, 12
dell,
376
Blanchard
Morrison
;
v.
v.
v.
WenStur-
Hoxie, 34 Maine,
M'Arthur, 43 Id.
r.
Y.)416
Bryan
v.
Nyce's Ex'rs
Obertz, 17 Ohio, 7G Mills v. CatIn this case it
lin, 22 Vermont, 98.
v.
life
to
assurance
life estate.
is
damages
to the
SEIZIN.
The law
91
and
lost
He
paid, in a ratio to
the
the eviction be
if
sold, as-
for instance, of a
and
it
principle," continued
Quid enim,
si,
quodfuit in
2,
1.
1,
1.
13 and
question were
first
rule,"
appraised .by a
a, b.
writ.
If the recovery
had been of an
undivided part of all the lands conveyed by the deed, then the rule of
cified
1.
64,
3.
subject.
only to
But
the plaintiff's
title
failed
Dickens
v.
Shepperd, 3 Murphey,
;
Wallace
r.
Talbot,
some importance
if
v.
arose.
he were restricted
eration
SEIZIN.
It
to recover less
that he
had a
for the
might have been the principal inducement to the purin other words, that the
purchaser had a right,
under such circumstances, to use the machinery of an action
lost
chase;
sale.
a court of law,
since the contract was executed and part of the considerit
But
was
ation fulfilled.
was
in
it
Leland v.
(S. Car.) 466
Stone, 10 Mass. 463 Cornell v. Jack-
McCord,
510; Griffin
Reynold, 17 Howard, (U. S.) 611
Blanchard v. Hoxie, 34 Maine, 376
Giles v. Dugro, 1 Duer, (N. Y.) 331.
v.
"I
Tilghman saying,
point as settled."
M (jiicnt case of Lea
,
practised, Ch. J.
ton, 331
But
v.
in
Dean,
the sub3
Whar-
it,
as
nasse, G39.
2
Espi-
SEIZIN.
of the defect of
title.
of the paramount
may
title
recover.
Every endeavor
is,
however, made hy the Courts to limit the recovery of interest within the hounds of a recovery of the mesne profits hy
the true owner.
recovery of these
" This
is
and
al-
son
more
ation
money and
it
In 13 Ed. IV.
it
3,
by the
exchange, where a
to
Court, that in
want of title existed as to part, the
party evicted might enter as for a
condition broken, if he chose ; but if
he sued to recover in value, he should
was
and extends
to
all,
yet
warranty upon
the exchange might severally extend
So in the case of Gray v.
to part.
Briscoe, Noy's Rep. 142, B. covenanted that he was seized of Black-
acre in
fee,
whereas in truth
it
was
There
land.
tracts
and
is
why
mentioned in the
two
first
count,
five sixths of the consideration-
money and
men-
diana, 452.
3
v.
Fauntleroy's Administrator, 9 B.
20.
4
Caulkins
v.
v.
Ela
Card,
v.
Jenkins,
2
13 Johns. 50;
N. Hamp.
178;
Clark v. Parr, 14 Ohio, 118 Lawless
In Patv. Collier, 19 Missouri, 486.
terson v. Stewart, 6 Watts & Serg.
;
SEIZIN.
it
an ejectment, and might justly abandon all claim to the property. From
that time then (1822), he is entitled
to interest on his purchase-money."
The
in
plaintiff in that case had,
1817, purchased a lot which was subject to an incuinbrance, under which
No possession
it was sold in 1822.
ute
the
commencement of the
and
it
broken as soon
as
titled to interest
The
taken.
positions
age,
it
is
pleaded
Cox
v.
and
Henry,
mesne
profits, except
immediately before
action,
interest
upon
v.
Fauntleroy's Administrator,
80 7, con-
who
Whiting
ing, 428.
u.
Dewey, 15 Picker-
and acquiesced
ages would be
money
in
SEIZIN.
it
was no
so for as there
seizin,
buy
in
an
much
plied to
We
the
outstanding paramount title, and
Court held that he was entitled to
when he
In oppo-
had the
any rents or
ises
profits
is
money he has
interest, and yet be allowed nothing for the rents and profits the vendee has derived from the possession,
pay
and
title
his
vendee
vendor had no
is
liable
over to
"
vendor, since
profit or a loss
real estate,
if
it is
a person purchase
to
he does so because
be presumed that
its
rents
and pro-
fits
will
interest,
which at
first
sight
it
sold, the
rent
interest of the
money
vest
their
money
in
unimproved
Purchases
may
money
invested.
be made, in
inducement may
also
might appear to do, is in strict accordance with it, since the plaintiff
the whole
interest
title
from
to obtain
if
to expect.
its
96
It is evident,
SEIZIN.
this
allowance of
his
mesne
profits
it
may
still
interest
money he may be
be recovered
for seizin.
is
to
in suits on covenants
When
it
can be seen
be inferred that
by the
it
was contemplated
it would not be
parties that
paid
with
was
interest
for
some
years
it
left to
the sureties until after they had become insolvent, and the jury having
found that they might have recovered from the sureties, the interest
so,
Blake
the
(Verm.) 437, it was held that interest was only recoverable accord-
justice
requires that interest
should be allowed from the time of
Lawless
In
v.
Andcrton
Arrowsmith, 2
Perry & Davison, 408, a vendor
had, on the sale of a life estate, given
v.
v.
Burnham,
Williams,
plaintiff
securities given
ciilcil
lluty liad
annuity
tin;
plaintiffs
having
averred that
SEIZIN.
97
In-
profits.
for
profits,
does not necessarily follow, as we have heretofore seen the law does not give actual compensation for
1
If, however, no allowance were at that
probable loss."
mesne
profits
the profits of the land are as valuable, or more so, than the interest on
derwdbd,
J., in
Combs
made by Unv.
it
Tarl ton's
is
utterly
and
If the vendee
is
by an adand becomes
evicted
mesne
many
is
its
not bound to account for the profof the land to any one, and where,
you must
and
the land
restore,
on your part,
its profits
but, as
by
the contract, you and the vendor regarded the land and purchase-money
cellor) will
of the same value, and take no account between you for interest or
This doctrine
where the
profits.
land yields a profit, or can be made
by such care, attention, and
manage-
as in this case, the profits greatly exceed the interest of the purchase-
ment
on the purchase-money
is sustained by the clearest principles of
recip-
as proprietors
usually bestow,
rocal justice.
improving
the expenditure of
money
made
it
by
or laboiy
98
It not unfrequently
SEIZIN.
is
reluctant
to
purchaser may, in his action of covenant against his vendor, include in his damages the expense to which he has
been put
in
defending the
title
the latter.
The
money with
its
interest should
be re-
that as
would
if
an allowance
rise
it
claims, the
settle
for improvements.
To
such multifarious and compli-
shall
hasty inquiry of a jury.
therefore leave the rule at law to
justice
The
cases
scription.
a subject of
the Court.
to be the
same
in
To
the
We
stand as
we found
it,
and
as recog-
and
may
the
See Hart
99
SEIZIN.
his
as
plaintiff's costs,
client,
of the ac-
the covenantor,
who might,
better terms
and that as
upon
ought only to recover costs between party and party.
it
was held
be to
the covenantor in to
let
an improvident one,
l It
But
must
however, be pre-
not,
position of the
title.
On
the contrary,
S.
C. 6
The
493.
&~VVelsb.
Ho well, 6 Excheq.
Eng. Law & Eq. R.
and Smith
249,
v.
is,
how-
Taunton, 153
7 Car.
Pennell
v.
Woodburn,
&
against an-
it
inflame his
own account
Lord Dcnman
11 Adolph.
pon,
&
in Short v.
Ellis,
Moody &
28
Kalloway,
Gillett v. Hi-
Malkin, 406
Drew
"
it
covenant."
lish
will of course
student.
100
1
proof
and as
SEIZIN.
2
peatedly applied on both sides of the Atlantic.
l
The same
plaintiff in
" If"
the ejectment."
" the
J.,
warrantor, on
added Ford,
Morris
v.
306, where
not
Rowan,
thorities, that
fact,
to
run him
less
defence, perhaps
it
might prove
costs should
be allowed as damages
had ever been made to depend on the
fact of notice by the covenantee to
the suit had been given to these deand they had either declined
fendants,
to
interfere,
or had unsuccessfully
this distinction,
and
as
seem equally
it
him anything ?
It
On
well set-
not preclude the recovery of damages upon the covenant, but only increases the burden of proof on the
if
it is
would
vii.), it
Pomeroy
v.
Partington, 3 Term,
Sum-
ner
v.
nantor as
plaintiff,
in consequence
am
incurred in honestly and fairly resisting the claim of title set up by the
622
his covenants.
the contrary, I
Pitkin
v.
379; Turner
Lcavitt, 13
v.
Vermont,
Goodrich, 26 Id.
It
many
101
SEIZIN.
case in
New
York,
it
was held
that in costs
So
taxable.
in a later case,
evicted under a
in
judgment
fended, brought
were included
where the
plaintiff
had been
title,
it
was
said,
"The
and of counsel
And
fees,
sufficient to
many
other cases.
was
fees
3
4
denied, while
In Leffingwell
sel
was
v.
Elliot,
allowed.
Staats
v.
Ten Eyck,
3 Caines,
mesne
for
profits
were not
Drake, 4 Halst. 141 Holmes v. Sinnickson, 3 Green, (N. J.) 113; Cox's
;
Heirs
roe,
(Ken.) 332.
9*
Staats
Ten Eyck,
v.
Sumner
162; Swett
10;
Hardy
Gennings
Haynes
v.
v.
Wend.
v.
Williams,
v.
Patrick,
v.
3 Caines,
423.
Mass.
12 Maine,
Stevens, 11 N.
Hamp.
658.
8 Pickering, 457.
102
the
SEIZIN.
to recover
put
was referred
it
first
secondly, similar charges subsequent to the service of the writ, not, however, including counsel fees ; and
;
and counsel
commencement of
the suit.
The
1
Court, on the argument of exceptions to this report, held,
that the plaintiffs were entitled to recover in full the sums
"
recent cases.
1
The same
10 Pickering, 204.
Rcggio
166.
The
some other
which
Braggiotti, 7 Gushing,
action was for a breach of
v.
upon
his
plaintiff
See
Guild
damages
also
in
v.
Guild, 2 Metcalf,
(Mass.) 233.
3 Jeter v.
Glenn, 9 Richardson's
New
Jersey,
it
seems
to
103
SEIZIN,
2
;
rule
question seems by the context to have referred to the
as settled in most of the States, that upon none of the cov-
enants for
title
3
of improvements or a rise in value of the land, and not to
have referred to the question of counsel fees, or other ex4
penses.
It
must
not,
recover counsel
action
Law R. (S.
of including in the damages recoverable upon the covenants for title such
none can
to,
Robinson v. Bakewell,
Casey, (25 Penn. State R.) 426
Cox v. Henry, 8 Id. 21. Such cove;
v.
Schell,
4 Commentaries, 477.
Grant's
Sinnickson, 3 Green,
v. Rowan, 2
in Morris
without dissent.
58,
v.
;
expenses, &c.
Holmes
See as
and
Chapter VII.
In the recent case of Gadsden
infra,
Law Rep.
v.
5 Rich-
SEIZIN.
title.
l Even the
right to recover costs
in the latter case rests purely upon
membered
That statute provided that the demandant might recover against the
tenant the costs
chased.
stricted,
reall
tractu,
which
is
no element of
tiff's
and the
legal costs of the suit brought to enforce his demand. In some cases of
tort,
the rule
is
Good
105
CHAPTER
III.
in fee
simple necessarily implies
proposition
numerous
is
in
Where such
omitted and in
is
its
is
place
substituted
covenant
that
the
is
common
practice to insert, in
same deed, both the covenant for seizin and for good
2
But in the most modern conveyances,
right to convey.
the
from the
this
is
Dart
arisen
a mere suggestion),
fact that
it
was usual in
statute of 3
&
Here the fee was, until appointment made, vested in the purchaser
and his heirs, as a qualified and de-
fee.
es-
in the appointee
by
and vest
virtue of the
106
as the latter
serted,
is
is
is
now
far less a
in-
the
prominent object
chapter, that in many States the covenant for seizin is answered by the transfer to the purchaser of an actual though
a tortious seizin, irrespective of the right by which the
property
held
is
limited in
its
application to the
mere
in its
why
it
is
popularly called,
the
title.
in
"
power.
the law
both covenants.
inconsistent with
an
estate in
fee-
simple, the latter being so high a nature as to merge and render void any
of the
Maun-
drell v. Maundrell.
ment of
cers,
that
who were
it
wish to dispose of
it,
without the
been so recognized
in a
number of
later decisions,
1
107
The reason
good right
it
vey
to
under those
It
acts.
nant on the part of the husband that they had good right to
assure the lands, the incapacity of the wife to convey by
2
reason of her infancy, was held to be a manifest breach.
But
it is
to the
ing
title
it
was considered
is
also as relat-
construed ac-
premises
The
Supra, p. 31.
Nash
S. C.,
3
v.
Ashton,
now
in Triplett
and
as-
T. Jones, 195.
Thus
sary possession merely, but was broken only by a want of legal title in
J. J.
Marshall, (Ken.) 432, where the covenants were of good right to convey,
come within
v. Gill, 7
Such a
till
108
and
these presents."
Much
1
by an heir or an assignee.
40.
2
3
2
;
v. Holmes, 5 Halstead,
See Chapter VILE.
Chapman
Jenkins, 305,
Bickford
v.
234.
pi. 79.
Dunnica
Willson
Sharp, 7 Missouri, 71 ;
Willson, 5 Foster, (N. H.)
v.
v.
CHAPTER
109
IV.
THE
difference
that
exists
between
covenants for
the
title as
expressed in England, and on this side of the Atlantic, is strikingly shown with respect to the covenant
There, it is almost invariably inagainst incumbrances.
serted after the covenant for quiet enjoyment, to which it
may
After
it
has
been set forth that the grantee shall quietly enjoy, &c., the
" And that
conveyance goes on to say
(that is, the peaceable enjoyment) freely, clearly and absolutely indemnified
:
charges,
ever."
by Mr.
Platt,
other
Covenants,
greatest
gifts,
1829.
p.
in
his
330,
Treatise
on
published
in
Any
10
covenant
seized
that
the
defendant was
of an indefeasible estate in
110
sentence thus
commencing with
the
depends for
its
incumbrances, thus
against
with
connected
it,
must be
equally prospective, and that its breach must therefore depend, not upon the mere fact of existing incumbrances at
the time of the execution of the conveyance, but on the disturbance or damage which the incumbrance might thereafter
cause.
Such a
England than
in this country.
There, the covenants for seizin and against
incumbrances are capable of being taken advantage of by
title
quiet enjoyment.
for seizin, if
it
is
made
at times
been ex-
" without
any
manner of
Van
Jeter
ference
brance, as in the latter case the covenant is not even technically broken
Stannard
v.
in
borough, 2
is
The
dif-
Ill
joyment,
it
being thus
may
may
made
prospective in
its
operation,
benefits
its
happened.
But
the
form,
covenant, (generally expressed
all incumbrance,'
free
and
clear
of
the premises are
it
has
it is
on
this
In England the
done or suffered by the said
grantor.
is more
and
after
the
form heretofore
precise,
language
"
made, created, occasioned, or
generally added,
suffered by the said (grantor), or any other person or persons whomsoever rightfully claiming under or in trust for
2
given
is
or procurement."
The usual and only covenant into which a fiduciary vendor can, in strictness, be compelled to enter, is that he has
1
Supra, p. 109.
or privy to any act, matter or thing whatsoever, wherewith or by means whereof the premises hereby granted or
in
still
expressed in
There would be
its
scope.
little
difficulty
Atlantic in holding that most of the incumbrances enumerated in the English form, (such as leases, mortgages, trusts,
annuities, judgments,
reason
of this
of expression, however,
doubts have here at times arisen as to what constitutes an
By
terseness
See
The importance
in/ra,
Chapter XI.
295.
of the expres-
which
519.
3 Prescott
630.
527; Carter
is
y.
Middleton,
Barn.
&
Cress.
Mitchell
v.
v.
v.
Trucman,
Warner,
Denman,
Mass,
5 Connect,
3
113
of prior taxes,
which
the covenant
1
is
a lien upon
to his daughter the right of living in part of a house, of
which the whole was afterwards sold by the residuary deis
visee,
So
covenant against incumbrances made by the latter.
the covenant is broken by the existence of such easements
as a
dam up and
to
paramount right
4
stream running through the land conveyed, or of a right
Long
272
v.
Mitchell
v.
Pillsbury, 5
consin, 410.
deed are
Hutchins
son
v.
Wis-
Jack-
covenant
is
broken
Long
v.
Had
estimation.
the
proceeds of
The
fit.
his."
v.
The
to the debts,
was a pew, which the seller covenanted to be free from all incumbrance.
from the
made up
that purpose.
held
"
:
We
The
Court, however,
cannot consider this as
an incumbrance
fendant
facts
is
the requisite
for
liable in
The
known
damages.
10*
the State
made
plaintiff
to the
in the
present case it is stated, that the assets were not equal to the liabilities
at the time of the conveyance."
2 Reasoner v.
Edniundson, 5 Indi-
ana, 394
(Me.) 94
Bean
Pickering, 44 7
2 Metcalf, 510.
3
4
Jarvis
v.
Mayo,
Shearer
v.
v.
Norton
Buttrick,
Morgan v. Smith,
Ginn v. Hancock,
5 Greenleaf,
Ranger, 22
v. Babcock,
Metcalf, 480.
11 Illinois, 199
31
Maine, 42.
way
to
a spring upon
it,
or to erect a party-wall,
and the
like.
Such
conveyed, or which as
was held
Thus,
that the
in a late case in
rigjjt
Massachu-
have a natural stream of water pass off freely over the land
of an owner below would not of itself create any liability
Harlow
dition,
Thomas, 15 Pick-
ering, 68.
9 Prescott v.
Williams, 5 Metcalf,
433.
497
v.
Cathcart v
Bowman,
Barr,
(Pa.) 319.
4 Giles v.
Dugro, 1 Duer, (N. Y.)
331.
5
In Parish
v.
Whitney, 3 Gray,
a house
made
estate
would
keep up a partition fence between
them and the adjoining property, and
subsequently sold them with a covenant against incumbrances, it was
held that this stipulation was no
that condition."
incumbrance
823
Pettee
;
Hawes, 13 Pickering,
v.
Griswold
v.
Allen, 22 Connect.
89.
^
Dunklee
v.
115
dental right to enter upon the land below to clean out the
stream arid remove obstructions was no breach of such a
strictest limits
exercise
its
covenant, although
was
So
pal easement.
in
the
same State
it
was subsequently
held that where an upper and lower dam and mill had been
conveyed by their owner to different parties, the existence
dam
1
veyance to the purchaser of the upper mill.
Some conflict of authority has existed, and
as to
still
prevails,
It has
over the property is a breach of this covenant.
such
a
that
been
mentioned
is no breach of the
way
already
owner of the
which
" of a
cumbrances, the breach assigned was the existence
public town road or way duly laid out by the town of A.
for the use of all its inhabitants,"
to be
an
incumbrance.
" It
to exercise that
is
Dunklee
Pickering, 341
Wilton Railroad Co., supra,
;
same
1
2
3
v.
is
The
to the
effect.
it
be a way of
Supra, p. 113.
Mass. 101, per Parsons, Ch. J.
5 2
116
owner
is
a great
damage
An
may
damage may
be
be
The amount of
very inconsiderable, or merely nominal.
is a
of
consideration
for the jury
damages
proper subject
who may
assess
them
but
it
cannot
the
affect
question
New
sylvania,
2
Arthurs,
it
was decided
in the negative.
in Patterson v.
The Court
ex-
surprise that a
pressed
highway should ever have been
imagined an incumbrance within the covenant, and the belief
that it had been the universal understanding of both sellers
its
J.,
person
purchases
purchased, and what must have enhanced the value of the farm." And
it was added, the case of
Kellogg v.
" has been cited to show
Ingersoll
that the existence of a town road is
brances.
case
on no
is,
The
answer
first
to that
is,
that
we
The
case,
been
which
it is
117
and the
locality,
quently,
if
use upon
it
state
it,
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
'
incumbrances
tion of covenant
'
.in
their contract
*
;
and hence an
So
in
the
case of Dobbins
v.
Brown,
be thought that a covenant of warranty extends to an entry by the authorities of the State, in the exercise
of the State to
make a
railroad or a
same
7
effect is Bailey v.
Miltenberger,
Casey, (31 Penn. State R.) 41.
2 " It
may
went on
acit,
is
concealed or not
made known by
of circumstances at
least,
the pre-
it
case
somewhat
similar to this
was
118
to this decision,
it
can-
across
the
it,
"
performance with costs. He could
not help the purchaser who did not
choose to inquire. It was not a latent defect."
Vesey, 508.
Oldfield
v.
Round, 5
It
rendered
this
impossible to
be opened.
this, infra,
it was
compensation being made,"
held that an Act of the legislature
to
authorizing a turnpike company
without comlay out and open roads,
of
pensation, was no infringement
" such
the constitution,
compensation
(See, as to
Chapter XIII.)
It seems proper to remark that the
opinion in Patterson v. Arthurs seems
to
Kellogg
v.
Ingersoll
and supposed
to
v.
Arthurs,
why such
upon him as
fully to
compensate him
understanding
which formed the basis of the decision.
highway does
constitute at
119
313; Ilayiu's
Pritrhard
335
r.
Butler
v.
v.
Maine,
li)
Moore,
Young, 36
Id.
Atkinson, 3 N.
v.
Hamp.
Williams,
Gale,
560;
In
this case,
atU'i-
beck
v.
principle upon which the Judge proceeds the evidence would be unnecessary, because he presumes knowledge in the grantee. He also pre-
at
times
expressed
mere
parties
will
may
it is,
little
will
it
not ex-
more
cite
might
arise
from them
damages that
?
is
When
it is
the deed of
we
are very
accustomed to consider
much
that, if an-
larid,
it
party grantor could not have intended what he has actually covenanted for."
In the very recent
case of Butler
wood
or to build
120
whether an inchoate right of dower was such an incumhrance as would cause a breach of this covenant. In a case
not.
notoriety, or
what
is
by
Mr.
in
its
isted at
And
Ordinarily a
court
of
equity
by another
at the
in regard to these
if they existed only in
to the grantee at the time of purchase, no one could claim that they
established.
rights of
way,
a prior grant, and were not known
whether
it
pay.
But no lawyer
will
contend
That
This
is
parties,
is,
he
is
so liable at law.
and
it
cannot be
set right in
is
this,
distinctions
The
case of Patterson
v.
Arthurs,
in
upon
ment by defendant's
counsel, seems
to us to
argu-
ground, there
jurisdiction
tent.
It
in that State to
is
the
common
any expractice
we
conclusion might he
upon.
might,
indeed,
be a
benefit to
might, in some
sections of country, the right (and
the
land,
and
so
the exercise of
it)
and a similar
not,
opinion,
is
was
it
to cut the
wood
to the defendants
conveyed
by
this
It
the
defendants, that
the
covenant
" I
am
that
brances
is
possibility of
dower
not, within
is
and
the result
of Kellogg
fixed incumbrance,
is
adopted
in
in the law,
Connecticut,
and
New
if
tended
for."
The
now
con-
r.
Hobbs, 2
former case
to the circumstances."
i Powell and
wife v. The Manson
and Brimfield Manufacturing Co. 3
Mason, 355.
bill
was
filed
11
by the
fully
bear out
this conclusion.
In the
nor
and
in
is
"
tion
tract
true that
only a possibility.
which
ity
But
it is
a possibil-
estate,
while
specially alleged in the count
in the latter case, which was an action
without any
lawful claims,
warranty against
with a general assignment of each
all
fend,
we
as
no
recover
alleged, the plaintiff cannot
damages for any supposed breach of
these covenants." In the case of Prescott
v.
goon after,
to
an
the diminution of
sistent with
its
dower, which
plaintiff's
in one third of
In Fuller
a claim of
new
Upon a
right to be acquired.
contract by which one for a certain
sum should engage to transfer land
or procure for another a transfer of
land by a good and indefeasible title,
and incumbrances,
would be reasonable to consider it
for the
down
rule can be
determine absolutely
whether such an inchoate right of
laid
to
is
it must
an incumbrance
depend upon many and various circumstances and considerations," and
it was held that under the contract
dower
ties
it."
by taking a freehold
may
title
is
event,
v.
Ohio, 71.
It
the
covenantee
was
compelled
to
123
it has been
distinctly and finally
recently, however,
Massachusetts that a right of dower, whether
in
in
order
to
avoid execution,
and then brought suit on his covenant. The Supreme Court took a distinction between the effect of the
covenant as expressed in that case
(which was in the short form already
" that the
premises are
clear
of all incumbrances
free and
referred
to,
whatsoever,") and
in
as
expressed
English conveyances, and held that
the former was strictly a covenant in
"
presenti.
nor could
Mabson, 20 Id. 137
damages be recovered at law against
the purchaser for a refusal to comply
v.
v.
It is
that, as
Judges, given by
or mortgage."
Except
as to the last
of
not,
this
proposition.
Equity would
Ligon, 10 Smedes
&
v.
Greenwood
v.
v.
Noyes, 2
observed
tract
v.
Porter
acts.
It is
right, as has
by
the
been often
greatest equity
the law and not
point, however,
Clark
v.
The
of the right
and
it
was
liens
may
be
seem
and
to be sustained
from
all
Barnett
1
The
But
sum.
in
Henderson
v.
Henderwas held
hadj)aid
Porter
447.
26
266.
2
Porter
v.
diner, supra
1
Fairfield,
Denman,
Henderson v.
R. (S. Car.) 376
Henderson, 13 Missouri, 152. In a
;
(Blair v.
Rankin, 11 Missouri, 440,) the whole
it
The
an anonymous case
in Sir Francis
term
to his wife
for so
many
it
it
tion of debt
possibility
because
also
it
Eliz.) 7.
125
is
may
nal
damages,
account for
is
its
with nomi-
plaintiff
of costs.
It
was observed
in the chapter
seizin,
it
any way, either in the declaration or replicadifferent rule, however, prevails with
respect to
in
proving
It is
set
it
forth in
his
declaration.
to
prove a nega-
in
Donnell
v.
Thomps6n,
1 Fairfield,
damages would
Grice
Marston
v.
Bickford
v.
v.
Hen.
VI1L, or a similar enactment, the
11 *
be
but
nominal;
Catlin, 22
Hobbs,
Page,
Id.
Mass. 437;
461
Vermont, 106
Mills
De
v.
Forest
Shelton
v.
126
and
being" so alleged
plaintiff'
The damages
2
it
exactly.
certainty.
1
2 Williams' Sauuders, 181 a,
note 10; Foster v. Piorson, 4 Term
Rep. 617
Young y. Raincock, 7
;
Illinois,
3
200.
aforesaid
ises
incumbrance
it
is
The
cise.
and in Carter
the exis-
said defendant,
day of
indenture
it
by
deed
his
on the
(if
by
by
the plaintiff
now
above form
v.
Denman,
3 Zabriskie,
is
right of
manner
to the acts of the grantor, the declaration must, of course, show that the
incumbrance was made or suffered by
murrer
and conveyed to
the plaintiff (here describe the premises), to have and to hold the same
tiff, and his heirs and assigns forever;
and therein among other things, did
were then
free from
incumbrance whatsoever.
Now
all
the
him, otherwise
142.
It
it
will
be bad on de-
declaration,
setting forth a
by adding
new and
a count
distinct in-
not objectionable as
is
the
ground of action, within
changing
the statute which authorizes amend-
cumbrance,
127
must, to prevent surprise, state the particular damage sustained, or he will not he permitted to give evidence of it on
1
the
he
trial.
may
be evicted under
it,
or the land
may
be sold under
or
plain-
after suit brought, and been held entitled to recover the amount
paid for
Lord, 1 8 Maine,
Burnet, 10 Ohio, 317;
v.
244 Foote v.
Brooks v. Moody, 20 Pickering, 475
Moseley v. Hunter, 15 Missouri, 322.
In a recent case in the Queen's
;
to great
expense amounting to
a large sum of money," &c., in input
Richardson
Bench, 756.
pay."
bury
2
v.
Chasen, 10 Q.
v.
Haire
Y.) 361.
v. Baker, 1
Selden, (N.
Thus, in Funk v. Voneida,
becoming anxious
for
but as
On the trial it
vestigating the title.
appeared that he had not paid the bill
of costs until after suit brought, but
If he had
erly overruled.
discharged the mortgage, this ought to have
it
'
Denman,
it is
been stated
as the actual
gravamen.
expense,'
that he has
the
been 'put
to
128
demurrer.
and
followed,
presump-
1 In
considering these remarks
upon the subject of the purchaser's
serve the
distinction
different rules of
between
the
some
incumbrance.
this
was no part
of this case that he had actual notice, but if he had, it could make
no difference. The purchaser covspecific
It
enanted against
after
that
time.
2
Levit
folio
of
11.
In Nelson's translation
704.
Funk
Voneida,
v.
is
1 1
omitted.
Serg.
&
answer,
to the
and
to
The
all
incumbrances.
is
caveat
make
had
sold a
If not,
by what
rule can
422
Ilubbard
v.
Norton, 10 Connect.
Sargent v. Guttcrson, 13 N.
Ilamp. 473; Lloyd v. Quiuiby, 5
;
129
is
that he
case,
power of the vendor to make it so appear
on the face of the deed, and if he neglect to take this prein the
is
it
carelessness at
in
mistake
if the
may have
Medler
v.
der
Lane, 10
v.
Hiatt, 8 Indiana,
Id.
424
1
;
73
Sny-
Dunn
v.
Alabama, 645
Suydam v.
Jones, 10 Wendell, (N. Y.) 1 85 MorWhite,
on one
side of
it,
in extrinsic facts or
allegations.
Smith, 11
v.
gan
Haire
v.
Illinois,
Baker,
200.
"
744.
Where no
question of fraud
involved, the rule with
respect to the admission of parol evidence to vary a written contract is
or mistake
the
same
is
in courts of equity as in
those of
one of
is
as
when an agreement
is
reduced
to
is
not
where.
And
it
is
cause
it
would be absurd
to look for
and some
and
if
Mr.
Hearne, 2
Hare's note
to
Woollam
v.
ed.)
ISO
1
writ of deceit, but every court of law which enforces the
rule that parol evidence is not admissible to control or con-
an action
show
that
it
nant was not to extend to a particular incumbrance not expressly excepted from
1
v.
Sargent
Gutterson,
&
its
v.
13
operation.
N.
Voneida, 11
llawle, 112.
there was
Donnell
v.
Thompson,
Fairfield,
nan
dam
185
v.
Doughman,
v. Scarborough, 2 Spears,
649.
In Collingwood v. Ir(S. Car.)
win, supra, the covenantor offered to
271
Grice
avoid
seeing
that
is
to
impossible to
admit
such
and
is
not offered
falls
directly within
it
shall not
be
is
of course
131
nant
Howe
Walker, 4
v.
v.
Gray,
Duncan, 5 De-
There
as
were known
to the
purchaser at
evidence
without
in
was set up in opposition to the payment of a note given for the purchase
money
and
in the
case of Medler
adhere to Allen
Allen
i?.
Smith, 12; S. C.
Lee,
of the execution
of the
deed, the
should be
so
mentioned
in
the
but
it
in himself.
Smith, J., in delivering the opinion of the Court, said,
title
somewhat
necessary,
"A
general covenant of
in
any manner
we
v.
subsequent
Hiatt, 8 Indiana,
173, the
as evinced
by various
this subject,
authorities,
is
70
But a major-
that
ity of the Court are of opinion
132
that in
it
is
cum
liable.
The same
if
result
effect
would be
were executed
cotemporaneously.
the weight of reason and authority
alike are clearly the other way.
withstanding,' &c.
is
the
exception,
if
any,
knowl-
those
full
in the security
affords
incumbrances."
Preston
on
the very reason for his taking a covenant, within whose scope it is in-
cluded."
"
excepting from the covenants
Grice
Scarborough, 2 Spears,
(S. Car.) 654; Dunn v. White, 1
Skinner v. Starner,
Alabama, 645
v.
Sanbornv. Woodman,
Mr. Preston,
to
Foster
v.
Woods,
his
are
16 Mass. 116
all
practical
instructions
as
title,
title,"
adds
not-
its
Brown
v.
28
Staples,
Maine,
v.
Copeland, 30 Maine, 499,
agreement, though reduced to
writing, seems to have been un-
land
the
133
seems
to
Lord
for
1
Leonards has observed, "
St.
sometimes hap-
It
title,
Mr.
it
were not
to
extend to
In Watts
sealed.
v.
it
but
Wellman,
was
to discharge the
course admitted
in
it
Property,
to
its
is
said,
covenant against
without
generally,
" It
is
sufficient
incumbrances
any
particular
specification, unless the estate is sub-
ject to
it
a.
seems,
rely
known incumbrance
if
then,
should be
see
how
such
cited
Rep. 14),
Thomas
and covenanted
existence.
So
Sugden on Vendors, 449.
Hughes' Practice of Sales of Real
2
N.
Hamp.
is difficult to
it
made
bill
ity
reconveyed
ants having set forth divers incumbrances on the purchased land and
(inter alia)
a lease
of twenty-one
expressly to extend
to such incumbrance, otherwise it
may be presumed
ing, a
and
this
of the covenant, as follows: 'and particularly of, from and against a certain quit rent, &c.'
"
Vol.
2, p.
205,
12
and
ed against
no incumbrance, because they had
proved the purchaser had notice of
it
(2d.ed. 1850).
where-
from
its
operation by parol.
The
The covenant
as general propositions, to be very simple.
being treated as a covenant of indemnity, it is settled that if
the incumbrance has inflicted no actual injury upon the
and he has paid nothing towards removing or extinguishing it, he can obtain but nominal damages, as he is
plaintiff,
in Ogilbie v.
yet
would not
;
her
slip of
But
as a Chancel-
was
less
eminent.
please
He
labored
everybody
very much
...
if
the
to
case
621,
"Even
Foljambe, 3 Merivale,
in
cases
where there
whether that
would extend to protect a
against incumbrances of
had express notice." This
doubted
covenant
purchaser
which he
v.
Whithead.
Vane
v.
Eq. Rep.
7,
v.
Mayo,
Randell
v.
Greenleaf, (Me.) 94
Mallet, 14 Maine, 51
v.
Vermont, 20
Willson v. Willson, 5
;
Foster, (N. H.) 235; Davis v. Lyman, 6 Connect. 255 ; Prescott t>.
Wyman
v.
Elliot, Id.
pra, p. 101)
457
;
Tufts
y.
Adams,
;
Id. 549;
135
the plaintiff proved the existence of several mortgages on the premises conveyed, on which he had paid the
sum of $1,165.44, and the sum of $835.30 still remained
1
Norris,
his
for
may
the mortgagee might still resort to the defendant on his personal obligation and compel him to pay it ; arid if the pur-
Delavergne v.
v. Dean, 13
105
Id.
254
cited.
paramount
this
afeller
618,
v.
questioned
Blackmar,
in
Aberdeen
324
v.
Gil-
bert
covenant
the
was
for
indemnity
student
will,
difference
between a covenant
brances.
till
been
evict-
2 it
See infra,
p. 153.
Johnson, 358.
a lso appeared that the defend-
136
to he
recovered for a
breach
proportioned
Thus,
if
the incumbrance be of
ment or
that the
said
jury according
The same
is
it
suggestion,
from
its
that the
continuance.
his discharge in
bankruptcy, between
missioner
ard
v.
134.
good
course of decision
y.
illustration of this
is
afforded in
Read
Bush
v.
Harlow
69
v.
Batchelder
v.
seizin, of right to
Pickering,
Sturgis, 3 Gushing,
Hubbard
(Mass.) 205
Connect. 422
in-
15
Thomas,
com-
of bankruptcy
(S. P.
Cooper, 26 Mississippi, 612) ;
Willson
;
v.
v.
Norton, 10
Willson, 5
Giles
v.
Dugro,
Thus,
application.
be easy to lay
may
it
propositions, there
down
137
these
general
seems considerable
difficulty as to their
New
in a case
in
was
But
"
in a recent case
in
Massachusetts,
it
was
said that
move
the incumbrance.
The
rule
is,
shall recover
and precise rules upon the subject of damages as are practical, it seems impossible to establish any more precise general
was held
that
was
and
1 Duer,
(N. Y.) 335 see Dexter v.
Manley, 4 Gushing, (Mass.) 14, infra,
;
p. 142.
Catlin, 22
v.
brance consisted of a
life
estate in the
tion
as
to the
duration of
life,
on
which the jury could base their estimate of the value of the incumbrance.
1
Rickert
423.
u.
Snyder, 9
Wendell,
The jury
12*
for
in that case
it
pur-
cumbrances
(Mass.) 201.
Cushing,
138
chased for the purpose of a re-sale, and that fact were communicated or known tp the grantor.
If the character of the
incumbrance be such as
to
admit
in
seizin.
the
application
2
Lockwood, where
was one of some hardship.
Dimmick
in
of the rule
v.
tenants in
common
He made
250.
im-
against
of
the
brought an action
tenants
in
common.
The
plaintiff
his
half of
his
that
this
Reed
Willson
235;
255;
150;
v.
to recover
Davis
v.
6 Connect.
Lyman,
Chapel
Adams,
Tufts v.
Bull, 17 Id. 221
8 Pickering, (Mass.) 549
v.
475; ComBatchelder
v.
Sturgis, 3 Gushing, (Mass.) 205
Waldo v. Long, 7 Johns. 173 Dela-
Brooks
ings
v.
Moody, 20
v. Little,
Id.
24 Id. 266
Hall v.
vcrgne v. Norris, Id. 858
Dean, 13 Id. 105; Stanard v. El;
an amount
sufficient
Cane v. Allen,
Dow,
As
sot-
aitpra, p. 127,
139
to
that
money.
was
found
said
the books.
in
less
little
difficulty.
But
that
it
plaintiff',
and brought
this suit to
amount.
But suppose,
again, what
is
probably the
pay a
lien
recover
it
may work
Among
14-0
to recover
There
beyond
none
is
in Massachusetts, where under the covenant against incurnbrances the purchaser has recovered any more, though
there the rule allows a recovery for the value at the time of
eviction.
own Judges go
to limit
to
principles
be
established
may
lead
to
great
in-
justice."
ges.
But
it
was
said
" If
by the Court,
covenant, a recovery to
be correct,
this
much
then upon
greater
amount may be had than upon the covenant of warranty,
which is ever considered the principal covenant in a deed.
this
If,
in
the
present
action,
he can recover
this
to be
some inconsistency
" After
full
Dimmick
v.
Lockwood,
was
it
After referring,
in this."
is
as laid
in
said
we have
down in
an action
amount paid to remove the incumbrance, with interest, provided the same do not exceed the purchase-money and inBut in no case can a purchaser recover greater
terest.
l In Cox v.
Henry, 8 Casey, (32
Penn. State R.) 21, this decision was
approved. In Willson v. Willson, 5
Foster, (N. H.) 229, it was referred
14*1
damages
in his
for
ranty."
It
seems
Dimmick
to
v.
Lockwood,
that there
in
that
New
England,
where on a covenant of warranty the value of the land at
the time of eviction forms the measure of damages, it is
probable that in a case similar to Dimmick v. Lockwood,
the limits of the recovery would be extended be)tond the
consideration-money and up to the value of the land, and
however this might be in case the covenant against incumbrances were the only one in the conveyance, there would
be
little
doubt that
if it
much
observation,
and greatly
to
ed.
money
is
value
without
it,
brances
extremely inequitable.
For
it
must
nant
is
When
the incumbrance
is
the
breach assigned of the implied covenant was, that the defendant had so
Such
proof.
it
den of proof
is
It
responsibility."
by parol
after
evidence,
always a serious
may be
observed,
The
case
of
Dexter
v.
Manley,
may be
laths,
and
all.
The
plaintiff
the
house.
rate
instructed
an implied covenant
re-
ferred
and
pails, which,
the tools and ma-
together with
fendant,
all
who thereupon
leased the
the
thus reserved
that
143
damages
tirely
damages
or what
be limited to one
dollar.
(See Haire
v.
Baker,
was,
for;
that on this subject, the rent reserved, the amount of the business, and
the
evidence tending
to
establish
evicted.
He
sideration
money paid
land,
the
This
of the
ages
if
partial
lease
of
a portion
and the lessee is relieved from a burden which must be deemed equal to
the benefit which he would have de-
be put
and
the
damage
for a disturbance
must
has been put to; and as he is answerable to the true owner for the
mesne
may
re-
144
Thus
interest.
them
The
in
iff's sale
circumstances,
it
was held
Under these
was a manifest breach
to the purchaser.
that there
and
was
entitled
to recover
For
in
the
such
conveyed is entirely defeated, and the purchaser cannot remove the incumbrance, nor can he enter
him
and
it
would be
idle to require
it,
in order that
between cases of
gage,
And
this kind,
attachment,
or
rights
of
286.
v.
may
Barrett
Willson
2 17
3
349.
v.
be
Pickering,
be the case
Chapel
Hopkins, 8
v.
349.
tion
which
dower,
Jenkins
a difference
cover back the rent he has paid during that time, with the interest
thereon.
constitutes
this
evic-
v.
Mass. 221.
Jenkins
t>.
Hopkins, 8 Pickering,
his
damages
it
in possession,
plaintiff is not
power
amount
money be
affected
by the
fact that
it
was
in
his
to
had refused so
to
purchase or extinguish
it.
" It
is
true,"
creditor,
was entitled
to recover as
damages
Waldo
v.
173; Barrett
143
Stewart
;
Long,
v.
v.
Porter,
Johnson,
14 Mass,
Drake, 4 Halsted,
ton
v. Babcock, 2
Metcalf, (Mass.)
510; Lloyd v. Quiinby, 5 Ohio State
R. 265. " If the incumbrance," said
tinguish it
land.
But
tiff's
by purchasing of Kirkit
power
to
compel Kirkland
to
True, 32 Maine,
neither should he be
obliged to
buy, and if he has been deprived of
(N. J.) 48
Elder
v.
13
sell,
146
no way bound to do
that the grantor would do
was
in
bound
to
do
covenant."
The
it,
it,
it,
to expect
his express
local
New
England States regulating the foreclosure of mortgages provide, however, that even after entry by the mortgagee upon the land for that purpose it may still be redeemed,
within three years, by payment of the mortgage debt and
and hence, although the purchaser may have been
costs
;
actually evicted
if
or if it be
possession only under a conditional judgment,
otherwise defeasible by payment of the amount due on the
" But it
put in possession by a writ of habere facias.
"
that the
does not necessarily follow," said the Court,
damages should be assessed to the value of the land be;
2 It
382
Foss
(Me.) 390.
v.
Stickney, 5 Greenleaf,
This was one of the
the
whole
Bond
v.
Bond, 2 Pickering,
147
is
by paying
Indeed, there seems to be no reason why, on such an eviction, which, at the election of the plaintiff, may be defeated,
by
of the defendant.
" If the
right of redemption is not foreredeemed for less than its value,
be
the
land
closed and
may
the Court held,
the
the amount
to be paid for such redemption
will be the measure of damages,
amount
it
will
afford
the
plaintiff*
a complete indemnity.
Cases
may
to redeem.
The deed
covenantee, on
the declaration.
(Mass.) 89.
148
still
prin-
into an absolute
Citing Tufts
v.
Adams, supra,
p.
147.
2
Donohue
v.
Emery,
Metcalf,
debt
True
(see
v.
Haley, 24 Maine,
297).
closed,
fore-
for equity of
applied.
3 The
foregoing cases were cited
with approbation in the recent case
of Willson
v.
H.) 236.
4
Supra,
5 Elder
p. 145.
v.
a covenant
of warranty, the
damages were held to be measured
by the value at the time of eviction.
damages
above
as
This case
also
when
is
had he chosen so
could have thrown all the
to
do,
mortgage
debt
in
L';i'_ <>r,
in tin-
to
to
off
shoulders, as there
compel him
stated.
upon the
first
and accord-
established in
afterwards adopted
States, of
incumbrance according
its
alienation,
and see
all
mer owner, by
the chapter on
the
covenantee
by
authorities submitted in
virtue of which,
149
had been
under
set off to
of his intention to
upon the
redeem
plaintiff, in
good
where-
and
faith,
The
extinguish such incumbrance.
value of the estate at that time, as
found by the jury, was $1,200
the value of the improvements
upon
made
$500.
it,
" It
and
is
that the
plaintiff,
to
down
as a
Under these circumstances, the defendant sold the premises to the plaintiff, "with the usual covenants of seizin
brance
guished for
brances."
if
is
not extinguished,
whole
estate,
and
less
it
can be extin-
amoumt paid
for
eviction,
latter paid
then
nants.
J.,
brought
"by
" It
suit
ported as found
to the plaintiff
to the plaintiff
13*
it
guish it, the amount paid for extinguishing would be the measure of
damages, because it would afford the
plaintiff a perfect indemnity.
Other-
gagee
grantee.
He
must redeem or be
150
then to apply
the
plaintiff to
$2,000, and the amount of the mortgage with interest, $2,500, should
the grantee redeem and pay $2,500
to extinguish the incumbrance, he
case,
sum
damages
now liable.
then he
But
if
the
if
the grantee
...
In
Wyman
v.
to fore-
Brigden,
for $1,800.
the defendant
the case
all his
the present
of
this rule to
and the
is
is
amount.
"
Had
the
defendant
being
to con-
conveyance,
seized,
the
The value
of
the land, independent of the improvements, was then $1,200, and the value
making in
the defendant or the plainafter the levy, and before the expiration of the year allowed by law for
tiff
The
the redemption.
probably
arises
great difficulty
fact of these
from the
sum paid
;md
for such
We
are
defeasible estate.
ion, that if
We
they were
are of opin-
made by
the
realty,
be asked,
may
may
be referred to as equally
is
may
recover
substantial
although
151
it
power
do
In these cases
to say that
the
if
the freehold, they would have constituted a part of the actual value at
"
We
more
Suppose
purporting to be abso-
of redemption, was less than the defendant would have been liable for
the
time of
quired a
title
redemption.
lute
want of caution
deed,
when
giving such a
in fact he had only a de-
u-asihlc estate.
in
been
447, supra, p. 145, is, that in the former the plaintiff had the legal estate
plaintiff instead of
to
exceed
The
the
mentioned
cannot
sum."
that of Tufts
temporarily
latter only
1
last
damage
v.
and
Adams, 8 Pickering,
an option of purchase.
See supra,
p.
93
et seq.
152
nominal
it,
his
damages
for his
course, cease,
be but
shall
will,
of
for the
under such circumstances, to recover the amount of the incumbrance, would seem to be at variance with the construc-
which we have already seen has been given to this covenant, in treating it, so far as the measure of damages is
tion
of indemnity,
it
would seem
purposes as one
accordance with
all
to follow, in
title
so as
estate of his
But, although
vendor
liable, it
was ob-
estate conveyed,
that if the
as
promise to
cases
142,) but there may be many
where the incumbrance falls short of
this effect.
Supra, p. 134.
3
Thus, in Halsey
v.
Reed, 9
one who pur-
an
absolute
to the holders
of the mortgage, then the whole contract was merged in the judgment
as the Court held, the true construction of the agreement was, that the
He
compelled
to
pay
afterwards was
interest
on
it,
and
153
it
instance."
distinction,
is
the accomplishment
Thus, in Lethbridge
the
which
was
an
action
trustees of the deMytton,
by
fendant's wife, on a covenant to pay off, within a twelvemonth, certain incumbrances to the amount of <! 9,000, no
was laid or proved, and judgment having
special damage
2
V.
gone by
but this was set aside by the Court of King's Bench, Lord
Tenterden saying, " if the plaintiffs are only to recover a
"
and
shilling damages, the covenant becomes of no value
" the trustees were
entitled to have
Patterson, J., added,
;
this estate
unincumbered
at the
enforced in
many
other cases. 3
be compelled
to
make payment on
that account.
1
is
noticed
the
in
8th
Carr
u.
Roberts,
Barn.
&
But, upon
would seem
By
the
common
is
But
unknown
The quia
writ.
in
in
der,
and the
Adolph. 78
nect. 249
like,
Booth
v.
Churchill
Starr, 1
v.
Hunt, 3
ConDe-
to
Smith
v.
Howell,
marks of Duncan,
neida, 11 Serg.
2
&
J., in
Funk v. Vo-
damages
for a failure to
do
BO,
Gates
;
v.
Loftus,
Peebles
v.
Estill,
153
7 J. J.
Bradley
v.
Commissioners,
25
Yancey
v.
Call,
Holladay,
155
ticular
it
it
in a par-
has,
particular cases, also enforced
Thus
of covenants to indemnify.
way, yet
the specific performance
in
2
Hayes, one who received the assignment of
several shares of the excise, covenanted to save the assignor
in Riinelagh v.
ought
over him," and referred the case to a Master, with directions that toties quoties a breach should happen, he should
report the
same
to the
Court, which,
if
necessary, would
direct issues of
quantum damnificatus ;
since
has
been
recognized on both sides of the Atlanciple
3
tic.
exexercised, yet
in so doing, because it
tender
varies
the
tremely
materially
4
It
agreement of the parties at the time of the transaction."
will be hereafter seen that a
at law, except
remedy
perhaps
in cases
but he
is
where the
Cole
Tulk
v.
y.
2 Phillips, 774
Moxhay,
Sims, 23 Eng.
Law &
Eq. R.
584.
2 1
R. 52
Gibson
Vernon, 189
S. C.
Chanc.
Cas. 146.
v.
v. Goldsmid, 27
Eng.
R. 588 Champion v.
6 Johns.
Ch. 406
McNeil, 2 Dev.
Car.)
&
Burroughs
Bat.
Ch. (N.
297.
'
3 Lee
Pember
v.
v.
Rook,
Mathers,
Moseley,
1
318
Brown's Ch.
156
is
or where
fortiori, therefore,
would seem
a general rule,
performance of any of the
that, as
covenants for
title,
New
title,
" It is
said, however, that
saying,
a court of equity will decree the performance of a general
covenant of indemnity, though it sounds only in damages,
bill,
upon the
Whether
term.
principle
this
In one sense,
all
may
be termed covenants of indemnity; that is, they are designed to protect the purchaser to a certain extent against
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 re-
the failure of
title,
widow had
obtained an assignment of
3
Tallman
v.
Green, 3 Sandford's
S. C.
157
dower
in the
cellor
will
exercise a restraining
the tenant by
his own act, and he will enforce the specific performance of
But we find no case
the covenant for further assurance.
his stipulation, disturbs
nantor, contrary to
same
principle.
Mar-
liam
In Watkins
v.
Owens,
2 J. J.
shall,
The same
ineffectual.
m;i(U>
Bradford
in
(Ken.) 225.
In Barnett
decision was
Long, 4 Bibb,
v.
Montgomery,
Mon-
.327,
(Ken.)
therefore,"
the*
thereof.
Court
warrantor
former owner.
" It did
not,
" leave
said,
liability
of the
to the conclusions of
law
Montgomery died
entered
an
into
as soon as all of
v.
culiarly framed.
roe,
them should be of
conveyed to him
reconvey the
pay
its
Barnett,
tract,
they were
if
would either
first tract
to them, or
Adverse
and
filed
sisters
bill
and
them a conveyance
of the
tract
158
There are cases, however, in which a specific performance of these covenants can, in substance, be decreed, when
incidental or necessary to the administration or marshalling
1
Thus in a recent case in England,2 a testator
of assets.
which, on their behalf, he had cov-
by
him
comply
Un-
"
and especially
as the
as to enable
title
him
to
each
Williamson
sey, 511
v.
Averall
was
it
party,
therefore
Codrington,
v.
Goold, (Irish Ch.) 252, per Sir E. Sugden, Chanc. Calvert v. Sebright, 15
Beavan, 156 S. C. 15 Eng. Law &
;
177)
Haffey's Heirs
11 Leigh, (Va.) 88
v.
Birchetts,
Adm'r
Kyle's
v.
them
for
with
of the
warranty
deed.
The propriety
of such an ap-
of bringing his
to the import
contained in this
bill in
equity,
Mont-
a valuable consideration,
against incum-
covenant
settled estates,
Equity,
and
infra,
the subsequent
had no right
Leigh, (Va.)
ery's
title,
and
to enforce
covenants
Cox
v.
judgment
to
make
creditors
the
settled
estate contribute.
In Haffey's Heirs
88,
v. Birchetts, 1 1
land which
and of warranty
in
had
for
trust to
to the
Bank
were
indorsers,
159
life,
with
it
the assignments
were
valid,
charged
if
nant must be performed, 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, of which there was no
He did not say the Court would spenecessity in this case.
a prior deed of trust, which had been
made to secure a previous debt.
The
damages were fixed and already cerThe damage was the value of
the land lost, and that value was
ascertained by what it sold for. The
debt was paid out of a trust, subject
to which the second incumbrancers
had title, and the grantor could not
complain, nor can his heirs complain
at reimbursing the second incumbrancers to the full value of what
had been paid for him to their prejudice.
In this view of the matter an
issue must have been superfluous."
ants,
filed
to
bill
be subrogated
assets
breach of
this
covenant could
is
true,
having no rights
but by the
of
substitution,
equitable
could
principle
assert
no
remedy
at
law.
relief in equity.
Moreover, although
it
is
generally
tain.
payment of
the debts of
is
in chan-
160
of law.
that equity
specific
performance of a
affection,
made a conveyance
his grandchildren,
of a
bill
in equity for
was
set aside
Nimmo,
v.
in
Ireland),
tlement, certain freehold estates to trustees for the benefit of
his daughters,
to
i
See, as to
rington, ami
this,
Williamson
Wilson,
v.
u.
CodBir-
S. C.
3 1
Barbour's
v.
Aud-
Craig
Lloyd
&
&
Phillips, 138.
Goold,
333.
In that
Upon
his death,
it
on a
bill to
was decreed
161
specific execu-
compel
was
want
"
" This
decision," said the Court,
of a consideration.
if
it
contains."
It
in
ties
Nimrno.
v.
In
all
of them,
the subject of the executory part of the conveyance was separate from and independent of the subject of that which was
As
executed.
were intended
to as-
nants for
title,
to protect the
enjoyment
case
agreement
in
provis-
ous consideration.
The Chancellor
with great force, that inasnuK-h as equity did, before the stataro-iu'd,
stand
seized,
alK'i-tiim,
much a
was impossible
to
refuse to decree
lack of
The
valuable
consideration,
decision, are
Holloway
14*
v.
Heading-
ton, 8 Simons,
324
Jeffreys
Jef-
y.
162
and that
if
equity will
it
deem
tary conveyance,
otherwise proper for its exercise, to enforce the protection
It should also be observed
of the party claiming under it.
that,
in
whose authority
that in
New
amount
to their re-
versal.
The
ister,
VoL
1,
p.
385
the author of
this
recent case.
2
Chapter XII.
163
CHAPTER
V.
differs
England
covenant,
its
to
be considered
the principal or sweeping covenant in American conveyIt is, however, on both sides of the Atlantic, the
ances.
2
only covenant generally inserted in a lease, and, in Pennsylvania at least, and perhaps elsewhere, in ground rent
deeds.
Its
these words
grantee, his heirs, and assigns, from time to time and at all
times hereafter, peaceably and quietly to enter upon, have,
hold, occupy, possess and enjoy the said lands and premises
and
profits thereof,
is
in
Ho well
v.
lease,
and
to
let, suit,
for his
and
their
nants
"
;
infra,
Chapter X.
164"
interruption, claim or
demand whatsoever,
from or by
of,
all
"
as
When, however,
is
usual,
it is
nant
The form
of this covenant
&
is
9 Viet,
and may
ingly, without
let,
suit,
eviction or
pendix.
2, p.
9,
Ap-
2 It is also
customary in
leases, as
but
it
all
this
"
;
does
son
v.
Dyer, 5 Barn.
&
Daw-
Adolph. 584
to these
concluding words,
in the briefest
manner.
it is
165
Although the words of the covenant may purport to indemnify the purchaser from any interruption on the part of
the grantor, or any other person, yet this
stood to mean such interruption only as
may
does not expressly covenant against tortious acts of strangers ; secondly, it would be unreasonable that he should do
so, as
thirdly,
against the
remedy
wrongdoer
the
covenantee
thus
have
a
double
fourthly,
might
and
one
his
and
the
satisfaction,
covenantor,
remedy
against
;
title,"
VIII.
Hen.
Hen.
Year Book 22
3,
VUI. p. 11. So in
Hen. VI. (Pasch.) pi. 26, " If a lease
be made for a term of years by deed,
the
cases
therein
shall
pi.
1.
whom
is
chargeable by
against
the
lessor.
right
But
if
he to
belongs oust
the
Modern,
34.
lessor."
S.
C. but not
166
Tisdale
v.
Essex, Hobart, 85
Folliard
v.
Wilcocks, 2 Johnson, 1;
y.
Greenby
v.
Dutch Church,
Brick
Coster, 4
v.
(Pa.) 499
Spear
&
Watts
v. Allison,
ris,
v.
Kelly
Serg.
8 Har-
Yancy
Rantin
(111.)
v.
Arighi, 11
(Miss.) 96.
get
Smedes
&
Marsh.
argued,
had no
first,
title
to
p.
it
more general than the present covenant, has been restrained to lawful
interruptions," and judgment was
given for the defendant.
In Frost v. Earnest, 4 Wharton,
(Pa.) 86, a lease had been made with
New York
by the State of
this
The covenant
for quiet
enjoyment
167
is
subject to three exceptions
the
covenant extends to all acts of the
In the first place,
1
Thus
covenantor himself, whether tortious or otherwise.
rule,
however,
in a case in
his
is
mortgage
disturbance thereupon.
But if the
vendee lose the premises, not because
.
of defect of
title
remedy
in that case,
of a vendee,
tled to
who on
eviction,
is
enti-
loss
cannot be
This
was
such an event, and is
designed for
not applicable to
it.
It
resembles the
may have
and therefore
cided that the vendor
feasor
such
tort-
apousted by
the sovereign power of the State
under its right of eminent domain,
when
or under
the vendee
is
the
reservations in
first
made
the
ances for purposes entirely different." The same point had also been
previously decided in Ellis v. Welch,
6 Mass. 250.
1
does
it
covenant.
plies
360
v. Brookesby, W. Jones,
Andrews's case, Cro. Eliz. 214
Cave
;
Corus
v.
Young,
Id.
544
Shower, 425
Crosse
v.
Lloyd
v.
Wotten v.
Tomkies, 1 Term, 671
Hele, 2 Saund. 180, n.; Sedgwick u.
Seaman
Hollenback, 7 Johns. 376
;
&
Leonard, 157;
Mayor of New York v. Mabie, 3 KerO'Keefe v. Kennan, (N. Y.) 156
Browning's case,
"which
had
prepared to
it
whole Court."
is
not liable on
2 Curtis v.
168
in
veyed
fee
by the mortgagor
to a purchaser,
who, by
covenant
Upon
urged
titles,
mortgagor,
it
was
general covenant
claims was limited by construction of law to
against
lawful claims, because the law is a sufficient protection
acquired,
held
that
all
against wrong-doers.
are derived from the
But
of elder
command,
as
they were
his
if
much
own
acts.
1 Such
is undoubtedly the
law.
" All the
Judges agreed that when a
man bound himself and his heirs to
action
on a covenant
a view
through the
after
such
feoffee,
or
any
other,
titles as
Executor
y.
Greenleaf 's
Dyer, 42
a.
This decision was cited in the recent case of Maeder v. City of Caron26 Missouri, 114, where the
were somewhat similar, but
there was an express provision in
delet,
facts
157.
Seaman
his lessor,
This
Leonard,
v.
Browning,
169
mere
Thus
trespasses.
2
;
the covenant in
v.
(supra,
than in
Dudley v. Foliott,
p. 166,) was even broader
the present case and yet it
;
to
be a covenant for
72.
it
mob were
lessor
himself, the
case would
fall
v.
Tomkies,
v.
Lloyd
Mayor
v.
Tomkies,
of
Kernan, 151.
New York
Term, 671.
v.
Mabie, 3
The
question whether
the acts complained of as a distur^><
is
thus
170
treatise
v.
"
The
at the bar, that where a man covenants to indemnify against all persons, this is but a covenant to indem-
and
And the
nify against lawful title.
reason is, as it regards such acts as
may
may
in Rolle's
Abridgment (Davie
v.
Sa-
by
his
trespasser,
of strangers might suggest, and therefore the law has properly restrained
ferent
title.
lawful interruption
of the covenantor, his heirs, or assigns,
yet he cannot avail himself of the
ful,
it
within
its
to rightful
It
is,
however,
where an individual
dif-
named,
for there the covenantor is presumed
to know the person against whose
acts he is content to covenant, and
is
word
any disturbance
from him, whether from lawful title
or otherwise." And where in a covenant for quiet enjoyment, an excep-
to
self,
v.
Mapes, Cro. Eliz. 212
Edwards, 1 Strange, 400
Foster
Perry
Nash
v.
v.
Palmer, 5 Maule
&
Selw.
Barn. &
Kennedy, 1 A. K.
Marshall, (Ken.) 389 Pence v. Duval, 9 B. Monroe, (Ken.) 49. In Nash
874; Fowle
Cress. 29
v.
Patton
Welsh,
v.
to stipulate against
persons
is
Queen
in fee, leased
and
successors,
existentibus
regibus
" It
remarked,
is
to expressly
customary
extend covenants
that
With
&c."
it is
also usual
" without
any lawful let," &c., so as to
of the
preclude the possibility of question as to the extent
The law is now, however, so well settled as to
covenant.
to insert the
words,
The covenant
"unlimited one.
is to
vel
But when
it is
reginis Anglice,
granted
the
reversion
to
another,
judgment,
sors,
J
Chaplain
v.
Southgate, 10
Selby
Hunt
Chute,
Brownlow, 23
made
in
371,
and
in
54
v.
v.
Mod-
ern, 383.
2
Calthorp
Hunt
4 2
v.
when Selby
v. Heyton, 2 Modern,
Danvers, T. Raym. 370.
has been held that the words " acts and means," im-
made an under
was held
covenant
the
word "
acts
commenced
the business
landlord re-entered,
it
It
default
"
land, the words
there, as
it
to extend
to
an
generally precedes that for quiet enjoyinent, and the words referred to
are,
when employed,
serted at the
end of the
enant.
8
Spencer
Cress. 457.
v.
Harriot,
Barn.
&
Tilt:
arrear of quit-rent whicli the purchaser was obliged to discharge, although not accruing while the covenantor was
It was said that if it happened to
the premises.
he in arrear in his lifetime, it was a consequence of law
owner of
that
was of
it
he covenanted.
observation.
l
Howes
v.
But
this
make
under
his
the venthis
rent
clear intention
that
the
of the parties
vendor should
was
covenant
of quit-rent
arrear
payment of
;i
fault.
how he
arising
him
in
which
much
to
mount
whom
with
seems open
decision
in
Hamond
be otherwise.
Corny n, 180.
course,
Hill, 1
v.
tees
covenantor not
having
suffered
common
er
as his
own
be seized in
to
fee.
In
Howes
v.
i/.ed by
2 Sugden
prior decisions."
on Vendors, 518. It certainly never
was imagined in Pennsylvania, where
ces
ever
to
held
liable
to
his
purchaser
by whomsoever created
the two
to
had been necessary, which the seller must have purchased, and that had been deemed
obligatory upon him within his cove-
15*
ery in Cavan
v.
Pulteney.
party's concurrence
If a third
life
and
his son,
who had
remainder-man
means, consent, neglect, default, privity or proThe tenant in tail and his son both died, and
curement."
their
acts,
upon brought
his action
on the covenant.
covenantor,
neglect
that
could be assigned on
before a breach
these words,
but a neglect and a default seem to imply something more than the mere want of
discretion with respect to his own interests
something like
title,
title,
where a
the
2
&
Scott,
599.
2
9 Bing-
Stanley
Bench, 1015.
v.
Hayes,
Queen's
175
" or
any other person or
any interruption of or by himself,
to
claim
or
by, from or under
lawfully claiming
persons
him, them or any of them," and the premises were disfor arrears of land-tax, due by the defendant
trained
upon
covenant
1
it
In Ireland
v.
of rent by the lessee, who had assigned the term to the plaintiff, cove-
ance
by, from or under them,"
although argued by counsel, was not
decided, as the case went off upon another ground
2
556.
West v.
The case of Blatchford
v.
The
the lessors should already have contracted with, or should thereafter contract to supply, provided that such a
quantity should be
left as would be
supply the mill for twelve
hours a day, with a covenant that
the lessee should enjoy without inter-
sufficient to
procurement.
The breach
C.
ex-
may
supply of persons
whom
176
Where, however,
fine
was
from the wife and not from the husband, and therefore, that
the covenant, which was limited to the acts of the husband and
those claiming under him, did not extend to this case, Lord
Mansfield said that the husband was a necessary
party to
the declaration by which the remainder
new
limitations
So, in a later case, where one, upon his marriage, setan estate upon himself for life, with remainder to his
tled
first
in
tail,
life to
the
di-misr,
fall
were made
See Dexter
default.
Gushing,
Swasey
i
v.
Hurd
14,
cited
v.
Manley, 4
supra,
p.
142.
v.
Fletcher, Douglas,
-I, ).
177
it
was urged
an
in
own
joyment.
8
So, in a very recent case, lands were, on the marriage
of a lessor, settled in execution of a power reserved to his
father, in trust to
himself for
life,
The
tail, with power of leasing for twenty-one years.
lessor subsequently demised part of the
premises for three
in
lives,
On
the
ejectment
against the tenant, under which the latter was evicted, and
the Master to whom the matter was referred found that the
lessor's estate
1
Upon
the
authority of
Hurd
v.
Fletcher, supra.
2
261
Dowl.
& Ryl.
Cress,
was
by the words "during
the said term," was understood the
;
S. C.
349.
It
to
any
liability
by reason of
lessor purported to
grant by his deed, and not, as contended for the defendant, a term con-
156
15 Eng.
Law &
Eq. R. 125.
178
But
was
viz.,
it
his
not the
during the whole term for which it was granted, and did
not the covenant affirm that the grantor had neither done
nor would do anything to prejudice the title of the lessee to
If he held that the covenant only affected such
that term ?
estate as the
lessor had, or
was confined
to the
persons
In
covenant.
many
title,
cases
ought
to
by the appointee comes within the terms of a covenant for quiet enjoyment as against all persons claiming
"
"
So in another very
the grantor.
by, from or under
eviction
recent case,
money for
the lessee for quiet enjoyment during the term, without the
1
There was
also another
ground
of defence.
Sir John had covenanted " so far as in his power lay, or he
lawi'ully
urged
that
qualified
by
this clause.
Carpenter
v.
Parker, 3
Common
of the
cove-
179
let, suit,
him.
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,
title
"
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 hus-
said,
question
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
ance
made
is
and not
for if
title
it
is to
he
is
breach
husband, for
is
to the
title
title acquired
by his means, and so
covenant."
it
is
a breach of the
286
Butler
;
v. Swinerton, 2 Rolle,
Cro. Jac. 657.
Palmer, 339
;
The
and
full
180
So a recovery of dower by
As
all
claim-
we cannot
lay
breach.
its
down a
universal rule as to
what
will cause
It
ment, while
It
is
it
" It
may
Mo.
Bendl. 138,
pi. 25, it
the
is
yon's)
magna
charta of the
is
also
stated
in
Sheppard's
it is
also if
state,
A purchase land
A
A
for
of B, to have and to hold to
life, the remainder to C the son of
therefore, the
lie
As
Sugden on Vendors,
to the covenants
in
tail,
and
after
of this land to
Butler
v.
Swinerton
but
et
implied
demisit,
X.
of the lessor
"
Otherwise,"
woman who
it
de-
the mother
then have lain against the heir because she did not claim by, from or
Coble
1
v.
Devereux,
Wellborn,
refer
"
to
its
181
it
is
only necessary to
2
any let, suit, interruption, disturbance," &c.
There would seem, however, to be little (Joubt that wher-
to
the
what
is
enant.
The covenant
assurance and of warranty, is capable of being taken advantage of by the heir, the devisee or the assignee of the
land to which it relates, an attribute of considerable importance, which
covenants for
As
is
title
covenant,
it is
Chapter VII.
'-'
Su-li a distinction
was noticed by
case.
it
in
this,
differs
is
Modern, 318;
of
way
of
so of
an interruption
necessity
through
Stewart
r.
3
4
Chapter VII.
/n/ra, Chapter
VIEL
v.
West,
already cited, sufficiently illustrates the importance of averring that the disturbance was under lawful
title, as otherwise there would be nothing to show that the
V. Bickerstaff,
defendant was
must
declaration
state the
paramount
title
to
have existed
4
before and at the time of the execution of the conveyance,
otherwise non cons tat that the interruption was not under
title
plaintiff'
himself.
Of
course,
how-
is
lawful
title
Blanchard
378
Wait
v.
Hoxie, 34 Maine,
Maxwell, 4 Pickering,
v.
Claiming
Norman
title is
re-
p. 165.
not sufficient;
v.
" Habens
Naglee v. Ingersoll,
Barr,
Hardw. 172;
S; Hinders,
181,
Wotton v. Hele, 2
and see the authorities
Fraser
v.
Skey,
Ingersoll,
is in
gen-
Temp. Hardw.
was earnestly contended in
Foster v. Pierson, 4 Term, 617, and
dan
Twells, Cas.
v.
161.
It
Hodgson
v.
J.,
cases,
it
said, in
but Kenyon,
it
was
possible for him to set forth the particulars of the titles of the persons
Browning
Pull. 14.
v.
See
also note
Wright, 2 Bos.
&
plaintiff to
examine the
183
under
title
which the interruption was made, so far as to satisfy himit was not tortious, and that his
remedy must be,
self that
On
upon the
There
it
the burden
the trial
directly
making
some
plaintiff,
conflict of
authority in
this
country as to
a
breach
of
this
covenant, as
damages upon
and
increased
value
the
of
respects improvements
subject of
is
the measure of
A form
words,
'
Now the
provements,
sons claiming
be
will
so to
Pleading, 56,
making of the
said
mentioned, con-
eject,
expel,
One more
full
and precise
will
be
the
common
found
says, that
ises
as to
(see
latter,
of pasture,
Wentworth's
in
Another,
fall
in arrear,
be found in Lewis
will also
3 J. B. Moore, 35
Taunton, 715. See also
bell,
v.
Camp-
S.
C.
Dexter v.
Evans v.
Manley, 4 Gushing, 14
Vaughan, 4 Barn. & Cress. 261, and
the cases to which reference has
been made on p. 172, &c. Some old
;
forms
tris,
may
60
also
be found
in 2
Robinson's Entries,
Ven171
eviction
costs incurred in
and how
it
may be
set forth,
184
the purchase
haps none
and as there
is
no
distinction taken
and per-
for
The measure
ceding chapter.
i
Chapter VII.
CHAPTER
185
VI.
THE
assurance
is,
perhaps, less
upon the inartificial charof early conveyances, than to any want of usefulness
covenant
itself
or difficulty as to
its
application.
or assigns,
acts, deeds,
l
is
said,
to the sufficiency
latter/'
It
this
cure the
covenants for
performance of
all
acts
16*
m/ra,
p. 188.
title.
See as
to this,
186
further,
better,
more
perfectly or
satisfactorily
granting,
The use
of such a .covenant
respects the
its
specific
recourse
is
remedy
obvious, particularly as
in a court of equity
upon a bill for
is
Hughes's
Practice
of Sales
of
It is evident,
said with respect to the other covenants, that any apt words showing the
intent of the
employed
is
following form:
" And
will, at
any and
will
be con-
and
parties
an habendum
the grantee
declaring
should hold the premises to his heirs
and assigns forever, but containing a
clause
that
cient
when
required,
was held
to
be a
vey.
form in which
to con-
covenant used
to
advise or require."
may
devise,
187
acts as the law deems necessary and practibe an unnecessary act, that is, one which, if
executed, would be useless, it is not such an act as the
meaning of the covenant requires. Thus, where the breach
is
meant such
cable
if it
made on
the part
in
to execute,
Maryland, a
bill
was
filed
to
compel a vendor
by
vey a clear
and the
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. 3
Nor
1
will the
Warn
v.
Bickford, 9 Price, 43
S. C. 7 Price, 550.
2
Gwynn
i>.
Thomas,
2 Gill
& Johns,
(Md.) 420.
3 Pet and
Callys' case, 1 Leonard,
304. So in an anonymous case, Moore,
" le
124, where
verity fuit que al
temps del request,
sic ut Idborare
non
if its
potuit.
Et
per-
tout le
traveller."
188
latter,
lands and to
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
moved. 3
It
is
proposition
is,
all
extending to all
paramount
title
titles
estate
plaintiff,
nisi"
Middlemore
of
modern
are
and
title
or in her
ly will
it
in the deed.
v.
Eq. Jur.
3 2
Sugden on Vendors, 542; Platt
on Covenants, 344, citing Heath, J.
in King v. Jones, 5 Taunton, 427.
18Q
ited
purchaser.
that the proposition above stated must be taken to be correct, and that the purchaser may, instead of suing at law
upon
move
the incumbrance.
But
if
hereafter to be
covenants for
noticed,
title
1
the subject-matter
Under such circumstances,
conveyed.
it would be
inequitable that the purchaser should, by virtue
of a covenant for further assurance,
require the
conveyance
to himself of
any greater
It is believed that
none
estate or interest.
authorities,
See
infra,
Chapter X.
plaintiff,
190
and covenants
make
to
further
He, on the
assurance.
So in
should enure to the benefit of the purchaser.
2
the recent case of Smith v. Baker, where one believing
title,
he had
it
was
he must be
what
" It
his interest
was
not
may
know
cir-
him
to
sale
that there
of
v.
is
which
was a contract
from the
Debar,
effect
Chanc. Gas.
also
reported
in
And where
by a
I see
Taylor
This
case,
me
274.
specific
the estate
is
bound
for value,
enough
to sat-
of that contract."
Edwards
595.
*
The
2 Sim.
&
case of Bensley
v.
Burdon,
as-
this principle.
was
entitled to
an
estate in
remainder^
charged
this subject
Upon
the
191
title
Lord
St.
other annuity, and conveyed the estate to another set of trustees, reciting
the former deed.
It
he had, at the time of these conveyances, no estate whatever, but subsequently, a life estate descended to
him, which he conveyed to the second annuitant. The first annuitant
his assign-
bill
all
charging the
ment of the
title, will,
life"
first annuity
and it was
argued (by Sir E. Sugden) that it
;
considering the nature of the defendant's title, and that, upon the ground
the grantor
him with
notice.
it
ter of
v.
Burdon, argued
in
favor of the
on
It has,
that a
contract
equity to have
it
decreed in
all
specie,
objection,
and
Law &
Eq. R. 588.
192
chased such
title
is
grant itself, then they would seem to have rather too broad
an application. 2
It is conceived, therefore, that the true
view
to
be taken
by virtue of
l
his
support of
this,
In
was properly compellable, and refers to Seabourn v. Powell, 2 Vernon, 11, in which there was
no covenant for further assurance at
The case was, that Austin and
all.
his wife being assignees of a term of
Austin became
years, mortgaged it.
insolvent and ran away, and Haynes,
who had the real title, in compassion
acquired
title
made a
lease in
filed
bill,
alleging
therefore
the
plaintiffs,
is,
that
being but
creed to
to
by Haynes
new mortgage
a
That the
to the mortgagee.
effect of
procuring the
where an
this
purchaser by estoppel, and that
result must in general be denied to
and that
103
by the
and
in
pay
it
off in order to
protect his
title
To
and possession.
this the
See
Chapter
infra.
covenants thus
that the grantor
implied
is
X.
are,
The
first,
seized of an in-
517.
Armstrong
t\
Darby, 26 Missouri,
"The
"
opinion,
is
the request
and
cost of the
vendee, perform
ance, which
confirmation
(Platt
may
of
all acts,
be wanting to the
the
on Covenants,
vendee's
p.
341
title,
Rawle,
even to levy a
he certainly might have called
fine
for the removal of a judgment or
other incumbrance." The commentators seem to have adopted this obfor further assurances,
;
and reasonable
surance.
The removal
of a judg-
chaser
may
file
bill in
equity for a
who
title will,
under
This expression of
stress
by
declaration of the
likewise be called
for."
(Platt
on
ers.
law in King
v.
can be supplied by a conveyance from him, the covenant for further assurance would clearly protect
the vendee. But if the covenant for
to
fer to
ity
King
v.
It is
further stated
by
Platt in his
covenant operates
the
title
veyance to the vendee. Such language as this is very comprehenSir Edward Sugden says, in
sive.
-line chapter we have quoted
t!,.
from above, in speaking of the covenant for further
title
prove bad,
;i
-uraiM-c,
and
the.
" If
the
defect can
title
be said
to
superfluous.
Why
insert a
totally
covenant
The
protection furnished a
195
He
seems
at least doubtful.
measure of damages.
Why
should
if
satisfactory
protection in equity
by an action
for
its
reconcile
it
The reasoning
control of."
in this
presented in
1
Napper
this edition.
v.
v.
&
bill
Stuart,
533, a
Of
Eq. Cas.
decision
stated
that
the plaintiff had resold the property which he had purchased with a
for fur-
title-deeds
upon
his resale.
plaintiff's title,
sort of
Ayers, 2 Sim.
course, on
ant's title-deeds
Arlington,
The
defend-
common
clay
tent
v.
Raine,
and
am
196
no scope
When
England,
submit to the
to
latter
usual, at least in
is
it
its
necessity
A distinction, however,
and propriety.
between mere agreements to convey by reasonable assurance, which are held to carry with them a right to cove2
nants for the title in the deed of conveyance, and a right
1
is
lett v.
time,
to
trustees to
and the
sell, if
the
to be observed
Baker
may be
surance
either devised
by
bound by law
to seal
seems
counsel,
Moore, 182,
the
by
pi.
326, to
report
in
be rather
The covenant
who
said,
it
creates no obligations
in respect of which the documents
should either be delivered to him or
the text
The
was
it
will
be observed,
Some
make such
as-
and
in Bennett's
said that " B.
S.
Andrews
Anderson, 122; Heron
C. Cro.
Eddon,
Car. 299
M.
v.
v.
the covenant be to
is
it is
'2
assurance
"
itself.
covenants
Where
197
in
Lord
St.
"
no
is to
Leonards,
convey an estate upon sale, it admits of
would
in
at
law
and
hoth
douht that the purchaser,
equity,
conveyance with usual covenants, although
in the agreement ;
nothing was expressed about covenants
have a right to
this
may
be,
it is
vendor
is
would seem
that in suing
upon
is
this
covenant at law,
breach in
to assign the
1
2 Sugden on Vendors, 545.
It
secms at one time to have been
fied is thus
to insert
any
to
make
it
with rea-
it,
for
assurance,
it
is
and
&
1
Throgmorton's
oO
Tudsey
Newsam, Yclverton, 44
Lassels
v.
v.
is
The form
of a covenant so quali-
17*
nants, 347.
who
and
and
his,
utors
themselves,
respectively,
and administrators
heirs,
exec-
and
so as
who
shall
be
compelled or compellable,
198
v
Some
particularity
is,
how-
ever, to
Thus where
make
testator to
plaintiff,
and one S. A.
enure, or
New
in
plaintiff'
why
S. A.
So
in a case
the defendant
and more
better
have a right of dower in the premises, and that the defendant had been requested by the plaintiff to execute a reasonable conveyance and assurance of the said right of dower,
according to the true intent and meaning of the covenant.
On
to give
to the defendant
it
it.
As no particular assurance
the
covenant
and
none specified by the
specified
defendant
could
not
know
the
what assurance was
plaintiff',
sonable time
to consider of
was
in
required.
1
Per Burrough,
Dymoke,
in Blickc
J.,
2 Binghara, 105.
v.
pro-
nant
will
,
be
ol.'l
found
;
in
sec also
Chitty's
Lutwychc,
284
King
v.
Jones,
Taunton,
418.
2
3
King
u.
Miller
See also
v.
Jones, supra.
Parsons, J) Johnson, 336.
Warn
r.
IJirkt'onl, 7
technical
199
it
would
550
v.
S. C. 9 Price,
Thomas, 2
cited
N/////V/,
Gill
43
and
& Johns.
p. 187.
Gwynn
(Md.) 420,
In Blieke
v.
Dy-
covenantor.
son
interest in the property as would authorize him to call upon the defend-
moke,
lor life
first
who
the
ant for the performance of his covenant but by a series of cases it has
such
dud
common
of /(>/ (inxitnince
advise.
nant,
the
averred the
declaration
plaintiff' as
tlu-
son, the
is
is
no part of
show
all
the covenant
that brings
him within
have been
title
having devolved
upon the plaintiff', and also that it
should appear that the suffering of
the recovery was advised by counsel,
notice of the
oi
15
the
Court of
Common
Pleas
v.
here.
In the
first
necessary,
because, in the language of the deed,
it is
admitted to be necessary.
The
more
200
be no question but that the covenant would run with the land
and be made available to the owner for the time being. Its
capacity in this respect, and the question of who is the
party to take advantage of its breach, is considered in an-
other chapter.
is
little
authority to
this
guide us in
In
considering the question of the measure of damages.
2
a
woman
seized
of
certain
v.
Jones,
King
being
premises,
mortgagee and of
855 paid
to themselves, joined
band covenanting
for himself
and
ance.
title
against the
bill
under
this
plaintiff,
who was
conveyance, praying to be
possession, and
meaning of the
Ian-
assurances
meaning
fMi.'iirc
other than
a recovery,
collecting the
of the deed from the Ian-
Therefore,
strictly
of the deed
itself,
our judg-
Taunton, 418.
3 It is
scarcely necessary to
statute 3
menand 4
Wm. IV. c.
74, the only mode in Kngland by which a married woman's estate in land could be passed was by
levying a fine, the simple process of
prevailed
in
this
to.
201
had
On
in the deed.
in his lifetime
and
the trial
it
appeared
of
entitled
lent or greater
sum under
1
grant a rule upon that ground, and upon the motion
arrest of judgment, it was decided that the ultimate dam-
less to
in
in the
" In the
Mansfield, Ch. J., said
present case the ancestor might have
sued and could have recovered the
:
at this time
difficulty
(who represented
his
vendor's covenant
to
the ances-
perform
it,
He
was
do so until the
was
sustained, for
damage
otherwise he could not have recovered the whole value."
count.
ultimate
to
presumed
that,
on
would not of
itself
it
tion
is
the ques-
upon the
covenant for
title is
Chapter VIII.
considered, m/ra,
203
CHAPTER
VII.
THE
it
considering, yet
is
it is
It
that
" few
subjects
understood by courts
tin-
action of covenant
of warranty."
Martin
&
Catron, J.
if,
were so badly
and lawyers, as
practically,
censure
is
upon clauses
Randolph v. Meeks,
the
deserved
severity of this
as although the
its
application
many
enjoyment
against incumbrances, and for further assurance.
These are all designed to be included
in the general covenant of warranty
for quiet
of
title
against
all
claims."
Such
too
to
Western
vania
States, as
see Stewart
it
is
v.
was
said by Lumpkin, J., in Lean* v.
Durham, 4 Georgia, 601, " I can say
this, it
and
held,
profits,
its
operation
two centuries
that elapsed between the passage of the statute de donis? and the decision in Taltar urn's
3
from the reign of Edward I. to that of Edward IV.
case
During
the
gled, and it was during this period that collateral warranties were introduced as a means of barring estates tail, and
implied
itself,
it
to the
b.
" an
Coke,
express warrantie shall
never bind the heirs of him that maketh the warrantie, unless (as hath
T)een
Litt.
said)
384
Hence
b.
Co.
they be named."
Fitz. Nat. Br. 312 a.
;
and
to the feoffee
there were u
warranty to the
feoffee
his heirs,
only, without mentioning
there the warranty shall enure for
life
only, because
it is
taken
"
strictly
Executors of Grenelife v.
1 Dyer, 42 b.
Co. Litt. 47 a. and
while this was the rule as to the ben;
efit
was equally
if it were
d merely by the word war-
of the warranty,
so as to
rxpir
its
it
burden, since
ran/izo, without
I
In-
the
of the
warrantor, as says
sal
it
demanded from
ligation of
homage
"
were " expressed by deed (as
"
warranties in
distinguished from
law,") their burden or benefit passed
no further than the words of the deed
ranties
strictly authorized.
2 13 Ed. I. c. 1.
case 25
sec supra, p.
6.
19,
205
pages of Littleton, who wrote shortly after Taltarum's case, filled with matter which is not only unprofit-
we
find the
at
the time
when
The
were
law forms of
action, in
remedy
to the purchaser.
which
one
if
who had
received a
fend the
title;
ing him
had been
judgment
lost.
in his
Whether,
in case the
personal action,
See supra,
Such
seems not
to
damages, as in case of a
have been very uniformly under3
p. 7.
as mortdancester, writ of
tit.
Voucher, Q.
18
Such
assize, a writ of
of an
assize,
Fitz.
Nat.
06
By the
another
sal
feudal law, as
was obliged
of equal value, or
fief
if
it
existed on the
to the
But
the land, then he shall have execution of land in value and damages,
2 Sullivan's
Lectures,
is
authority
119, but
no
position.
is
to
be recov-
warranty, as
voucher."
3
"
assize, &c.,
And
man may
35.
ed
hath
lost, &c., if
his
damages
H.
6,
31."
(This
is
him
"
:
not
all
plaintiff
et
to warranty,
loseth,
and
judgment
to
and he entereth
into, the
er."
Judgment and
if
is
and
a mis-
Brooke
chartae
icy
and therefore
to bring
'
against
his
it is
good
pol-
warrantia charta?
to
in
query, there,
;
if it
less,
his apprehensions
ment pro
207
The
loco et tempore.
effect
from
have prevailed as
to the
lost
contrariety of opinion
damages on a warrantia
all
some
shall
may
chartce, as
nothing.
But when
it
"
Justices of the
what
effect
Common Bench,
judgment
of
in warrantia
and it
was moved that a warranty was no
more than a covenant, and that by
chartce
pro
loco et tempore
such covenant a
man
is,
ment above."
12.
The
case
is
much
M.
to
pi. 3.
be regretted that
as yet
achieved a translation of the Year
trarieties
would doubtless be
to
of these
plained, could the contents
volumes be presented in a more famil-
Roll
pi.
iar shape.
2 Viner's
208
But
to
defend
it.
and of warrantia
was
chartce,
only capable of being employed when the
adverse title was one that affected a freehold interest in the
the machinery, both of voucher
Here
was no
was merely a
;
chattel interest, to recover which those actions would not
lie.
But, as it would be hard to leave the warrantee remeloss of
diless in
warranty as a
common law
it
2
recover damages to the extent of his loss.
1
J., in
Year
" If I recover
Book, 8 Ed. IV. 11.
from my warrantor a judgment pro
loco
et
tempore,
and
then'
am
im-
of years.
The
The only
class
lessee entered
upon
proper for me to
request him from whom I have thus
recovered, to put in a plea for me,
or scire facias,
it is
ac-
which was
lie,
and "
still
it
him by them,
undetermined.
was agreed by
Upon
all
the
Exchequer Chamber
pending, as otherwise I
shall not be allowed to have execu-
Judges
tion on
tion that
is
my judgment."
hold with
in the
lie
209
freehold.
lost.
Where
rantia chartse
warranty
is
upon
and therefore a
real
the freehold
is
But when a
lease
any other
the war-
loss
brought in question.
is in
question, or
that doth not draw
was
v. Gilliam, 1
Murphey, (N.
Car.) 47; S. C. 4 Hawks, 310, a
tenant in tail aliened with covenant
Taylor, Ch.
made a
J.,
between a
covenant real and a covenant personal
and to a warranty alone in
was
away
the freehold,
it
may
be used as
real
years.
" If a
man
to several
so
it
clear distinction
to the
against
is
ousted by
lies
"
18*
his heirs.
reasonable inference
signed to
is
210
spoken of as a covenant real, it was so termed as distinguished from covenants which did not run with the land ;
seems
to
effect
was
the
first
therefore,
warranty (which was however, by no means frequently used in England) was classed
with covenants to repair, to levy a fine, &c., which ran with the
fell
land,
old warranty
their
mother country about the time when the modern syssaid to have had its rise at the
case
says,
is a common
recovery, or
with proclamation, or in some
special cases, a warranty." Preston's
less
there
fine
Law
action there
possession, yet in that
was nothing in the warranty of the
to bring
tract of
Mr. Preston
"On
the effect
tail,"
he
See further as to
Tracts, 29.
the effect of a warranty by way of
nants for
V11I.
title,
see
infra,
Chapter
the emigration to
had ceased
their use
to be frequent,
in-
Brigman during his retirement in the time of the ProtecThe ancient warranty was nearly out of use, and
the modern covenants were not fully in use, and, at this
torate.
period, if
the
covenant
throughout
its
The
alteration
recoveries,
conveyances
to uses,
and
perjuries,
continuance of real
the
mode
of trying
actions,
titles to
and
landed
dence of
it not so much
by supersedby giving a new direction to
the principles of the old law, and
applying them to new subjects."
effected
ing, as
v.
the old warranty and the modern covenants were used in our early con-
veyances.
His language
is:
"Our
ancestors,
the
ranty,
assurance of
title
in
England, both
early conveyances
common-law warranty
stripped of
its
and,
on the other, that it is synonymous with the modern covenant for quiet enjoyment. But the first of these conclusions
is
far
The
advantage of
the tenant, as his services to the lord remained the same.
for in services,
to the
But when lands were aliened for money, when improvements in agriculture became an important object of public
when the alienor might have no other lands to
policy, and
render a recompense in value, it became expedient that
another remedy for the purchaser on eviction should be
And it is certain that, before the emigration of
allowed.
context would seem to imply, the idea is meant to be conveyed that with the change of the times and the frequent
was
optionally
J
either
Gore
v.
213
might
v.
Rudge,
American
port, 3,
guished
in
edition
u from the
pen of a distinwhom
the editor is not
jurist,
"
name
(by whom, howmeant the late Judge Story,)
which has been thus inserted, somewhat abridged, in the 10th volume of
" But
the American Jurist, 119.
at liberty to
ever,
is
would have
in
in point.
is
So, also, he
supposed, to express real covenants,
which extend to freehold or inheritestate
is
This
title.'
last
by authority.
sentence
that
is
upon
case of
there
is
if
the ouster
ment.
Pincombe
of
finally
decided
Chamber, by
Jac.
1
and
Rudge, was
the
Exchequer
the Judges, in 11
therefore, if there be
all
And
1.
in
v.
seems to
it
me
is
that there
is
And
a neces-
he
At
all
relies
tum."
referred
expression
to
has,
however, been
often
brought.
is another and more
important distinction between
modern covenant and the ancient warranty, than the
mere form of the remedy. Even if the law were that, with
the advance of time, warranty became gradually employed
There
the
has been
lantic.
tae
title
Allison
treated
v.
in
con-
Allison,
Yerger,
Bell, 3 Bibb,
(Tenn.) 24 Booker u.
(Ken.) 173; Townsend v. Morris,
Rickets v.
6 Cowen, (N. Y.) 127
;
Dickens,
Townsend
Stout
v.
Morris, supra.
Jackson, 2 Randolph,
(Va.) 148, (see three elaborate opinv.
Tabb
v.
Binford,
In Townsend
v.
Morris, 6
that,
lie
upon a
in Pitcher
dition of " a
was an obvious
distinction
We
case of Holder v. Taylor, indeed, seems to make a difference between the breach of the covenant of warranty and
that for quiet enjoyment, while the
law seems
to
have recog-
power of
1
Pomfret
w.
Ricroft,
12
Line
v.
N. C. 183
Hainp. 219
Saunders,
v.
Taylor, Hobart,
Stephenson, 5 Bingham,
Crouch
Grannis
en, (N.Y.) 36
2
v.
v.
Fowle, 9 N.
Clark, 8
CowX.
Hobart, 12.
whereupon
it
action of covenant
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
;
but a
stranger,
and
so
the cove-
But he did
common law
as to the
And
even
tempore abundantly testify.
when used as a personal covenant by reason of being annexed to a leasehold, it seems still to have preserved these
judgment pro
properties,
loco et
dif-
ferent.
Patten
v.
McFarlane, 3 Penn.
striking illus-
v.
Brown,
consider that
that
it
it
contains
all
justice, to say
the
five
cove-
it
was
Common-
rii:ht
TIIK
COVENANT OF WARRANTY.
217
Although, therefore,
it
even
modern covenant of
ness,
the covenant, and that the prior release of the damages, if an eviction
nants for
received
fered
from
its
successor chiefly in
modern covenant."
fall
within the
It is
evident that
this
title
which
fects,
it
of the'whole five
but
its
potency has
founded on an
assize, or a writ of
the
modern
writ
of covenant
is
The gravamen,
defect of
title,
sequent on it."
In a note to the case of Paxton
the
porter, the
v.
Lefferts, 3
Harris, (14 Penn. State R.) 338, "differs from the ancient
warranty, not
v.
West, 2
been abolished,
but
The
England.
more plain and pliable form of covenant has been substituted.
The
bound him
to render, not
damages,
a recompense in kind for a
breach of it. The form of the writ,
The
same.
warranty
feoffor
was bound
1>\
his
the
grantor
do as
to
is
19
and
executors
his heirs,
it
might
218
its
application,
such a construction
in
If
its
warrantor
render land only, the covenantor
might, perhaps, be entitled to tender
ture, the
land as a compliance with his covenant, and might also avail himself of
the niceties and subtleties which
all
is
that in
true,
damages were
the
some
cases,
also recoverable
If a
warrantee.
convey, yet
lias
by the warranty
to
rig-ht
man
by
be im-
pleaded in
plaintiff
shall recover his
to
in a larger sense
its strict
legal sense
There being
as large as defend.'
was
also taken.
And
of the covenant
is
See
to defend.*
Law, Vol.
4, p.
457
in
which the
'
'
chartae.
believe,
a covenantor ever
defend
is
to
and
be construed a covenant
all his
land, &c.
enant
like
On
all
such a construction,
would be gained by
of Williamson
v.
little
it.
If,
of
advantage
In the case
Codringt(jn,
Vesey,
heirs
the heir at
and
assigns, (not
common
merely
ivul
ing it; and it binds all his estate,
and personal, in case of eviction by a
stranger, to the amountof the damage!
sustained." See passim the remarks
in Rector
v.
Waugh,
17 Missouri.
-_M.
and note.
See </''"
!'
--'"'
19
Blydenburgh
v.
Cotheal,
Duer,
Yi-rger,
Stump,
Crutcher v.
(Tenn.) 25
5 Hay wood, (Tenn.) 100;
;
dolph
v.
Meeks, Mart.
v.
J., in
&
Ran-
Yerg. 61,)
Bedford's Heirs,
the
v.
Fail-brother, 1 Fairfield,
(Me.) 96
same
joyment.
a covenant to defend, not the possession merely, but the land and the
estate in it.
Upon this occasion, we
are to suppose the
derived from
title
The
plaintiff
act
after
edy of the
Serg.
Clark
& Rawle,
In Drury
v.
v.
McAnulty,
He
plaintiff.
(Pa.) 364.
Shumway, D. Chip-
that the
in,
the character
tion
must not be
violated,
when
the
Carolina,
Lanham,
304
Moore v.
The covenant
J., in
by Earle,
3 Hill,
"
:
ment, by a title adverse and paramount, is not a breach of this covenant, but that the plaintiff must have
other
mount
220
1
merly existed which have since been repealed.
The
peculiarities then of a
a covenant,
may
as*
warranty
summed up
be thus
distinguished from
by a writ of warrantia
ble,
charlce.
this, in case of a
Secondly, as respects the judgment
voucher, or warrantia chartce after suit brought on the
;
adverse
title,
was
the warrantor.
v.
Pringle
v.
558
2 Id.
1809
man
Johnson
v.
Collins,
v.
v.
Johnson,
Viscon, 1811 Fur;
also Faries
Law
Champness
Smith, 11 Richardson's
rule as to the cov-
v.
The
R. 82.
Eq. R.
Strobhart's
173; Jeter v.
Glenn, 9 Richardson's Law R. 378.
The course of decision in this State
as to this point is more particularly
noticed in the last chapter of this
treatise.
"
trict,"
says
Ohio, 828,
to a
covenant
till
actual eviction.
The
title,
1
The insecurity of title to real
estate in the Virginia military dis-
in a note
common
reporter,
Burnett, 10
Foote
v.
said to
have given
rise
to
The
v.
in
until
he
warranted, when,
when
possibility
But
the cove-
nant of warranty bound the latter, even when they were not
named in the deed, on the familiar principle that whenever
a testator
is
be. 1
always
between a
were,
seems that the warrantee was allowed damages which could be levied from the personal property, and,
Secondly, where the estate conveyed to the warrantee, or
der in value,
it
covenant.
On
it
in
the full
form
in
pi. 1 2
which
;
19*
is
it
is
Hyde
v.
Dean
"
English conveyances, for, as was said in a late case,
covenant for quiet enjoyment, which resembles the modern
covenant of warranty, differs from it in this, that the former
is
better title."
There
is
in the
In this place
ployed on
may
prefixed,
and
its
form
is
generally
Harris, (14
West,
Penn. State R.) 338, per Gibson,
Ch. J. This remark must, of course,
be applied to the covenant for quiet
Stewart
v.
enanted against.
But where,
as
is
and
American authority
to cause a
is
decisive that
equivalent to it is indispensable,
2
ee infra, Chapter IX.
8 It
is
very often
employed
in
words
heirs nor
any
"
So
title to
all
expression
grantor,
(grantor)
nor his heirs, nor any other person or persons, whomsoever, claiming by, from or under him or them, shall or
will," &c.
by way of estoppel
operation
Fairbanks V.Williamson,
Green-
v.
Thayer,
Miller
v.
;
East-
Gibbs
Gushing, (Mass.) 33
Id. 40.
v.
Ewing,
Claunch r. Allen, 12 Alabama,
163 Trull v. Eastman, supra ; New2
comb
v.
where Wilde,
" It is not
opinion of the Court, said
stated in the report of the case, that
said
claim or
all
persons claiming
To
consti-
Gushing,
(Mass.)
32,
the
cove-
New
States,
England
"That he
as generally expressed,
is
in
lar the
unto the said (grantee) his heirs ami assigns, against him
die said (grantor) and his heirs, and
against all and every
other person or
persons lawfully claiming or to claim the
shall
and
And
that
all
one
is
titles,
and
in tlu
throp
v.
ut
Sncll.
11
eases of Lo-
Cushing, 453,
and Por-
Galvin.
2i> Maine,
187,
overruling Fairbanks p. Williams
and White r. Erskino. supra : and
see the dissenting opinion of Mr.
v.
a war
paramount
Pike
by these presents
when the covenant is
will
enants
rantv.
'
/n/rn, Chapter
IX
rill
a limited
one,
KNANT
o\
<
k>
words
flic
hy. from or
after
inserted
WAUHANTY.
<>K
(lie
part
thereof.'
1
may
words,
lliese
that
infer
will
at
is
said hy Littleton, we
warrant and forever defend,
what
Kroni
once he perceived.
form
lo ancient
1 '
''
The
comprehended! the cause of \\arrantie.
ct
to
seems
have
warrant
and
forever
form, however,
defend,"
to have descended to the
use.
and
into
present lime.
general
got
w;irrantie, nor
,1
1<]<I<>
ft
words
iini
//./r/Vr.s-
In-
i-i-n
seeim-tli
word
ilia!
>l'
so thai
lie
j'<
ml-
warranty
Cor if
il
should
it
I,.-
the
it
should
or cause,
of warranty, then
in
li
Kind's
which
seenielh thai this
word and verh inirrinili.-.ii) inakelh
it
an<l
\\arranly,
of
cause,
tin-
is
in
our
"
l-'ov
" "
<
)f tln<,"
382 b),
says
"
Kraetoii
inanner:
fnnfiini
i-t
rd
lull
/n/i
Coke (Co.
writeth
,/ /in r,
/.'/,,/
rantitabimUt
,'t
<l
,/,
<i,
in
Inrrrdifnis
Imrihns
;/,(/'</,
Lilt.
<l
,i.<s/
i/>ii, ins
this
n'iir,,,--
/nint/ihus assirjntihirttni
:.nl>iiinis)
<nl
ilia in
suis
/n<i/is
><,,<
ct
,1
/,-/,-n-
m/n
/,,
r-
m/u/ii
xuum
ilaif
/< i
COTUM kCKredes
<inl<
fiiintis)
sr
in
tl<fti,<l<
I',,-
dicil
t/tinit
sitxrijtil
//o.s-.sv.v.s-/V///r
et
</
irnrrtin-
surrct/anlcx in m/inilum.
<:/
autem
line
tf/iitr/'i/rs
(<t/
ct r/'/iiofos,
j>r(ifr.nte8
/>ru/>iii</ii.<>s,
Ct fltturos,
1,1
<
olilii/nl s,
<>(
et
tenc/in nlninin
<issi</natox
8U08
omnCH dUoS,
nn,l ,/ic/f
,1
irnrrnnli-
<>f>/ii/<i/i<mein
Immlis
i/innii
{hnutlionis cont.inc.tnr.
t/irif
i/iim/
n/i/
t/uis
/'<
.s,
mlim us)
n<\
<l<f<
ri/nt<//i
in
suos
rnrtd
in
Inn-
atl
ser-
antcm
n/ilii/n
,,<!,, ,<luiiL
/>nn//>
/"
rci
si.
<ln-
<lnnl],,,
"
(conli
Il.-rehy
<ici/nir/<ir<luil
in
'
in
doth
trnrnntli <n
/in
neither
thai
appeal
(<l<
Im ntlrs snos
!'
QfC.
(urtjni,
"
'-'If-
ifirit
limn
Per
nnlini <jii</
line
the
contra
/incntiis
put
'
it
it
il
<l<
and
lo
is
it,
such deeds;
in
in
Latin,
inin-nn/i.n/ni/iiis
clli-cl Ihis
\vli;it
Ii;i.tli
in
t/(-/'<-ii<l<'int<s,
ini/irr/H'/uti/n
nuns)
contained
is
it.
L -
ml,
.s
nit
Lalin, do
and
in\
CoU),
it
</,/',/,,/,,-<
nor
If
create a
\\arranlie,
Ki/o
only. A nd airnrrdn/i .ultimas,' &C.,
'
<
creale u warrantio, 80
also."
The
estate,
when
it
title.
by paramount
was, indeed, one of the consequences of a warranty, and its effect in this respect has been continued,
though with modifications, down to the present time. Belatter
what
will occasion
and responsi-
The
been referred
practice,
States,
it is
that, in general,
upon
of the United
all
suit
is
Stewart
v.
Swenk
v.
470; Bender
las, (Pa.) 436
v.
;
Watts
&
Williams
381;
Brown
v.
son, 10
ner
338.
2
title
of the adverse
379;
Turner
Taylor, Id. 631
Goodrich, 26 Id. 708; Hamilton v.
u.
Cutts, 4 Mass.
353; Cooper
v.
Wat-
The
Mi-
v.
wee,
v.
282; Cox
Jones
Waggoner,
v.
(Ken.) 144
Hill,
(S.
Thompson,
Graham
v.
Strode,
u.
Davis
Car.)
Prewit
28
7 J. J.
v.
;
v.
i
King
Bell,
KrnId.
1;
Marshall,
Wilbmu-m-, 1
Middh-tim v.
Spi-ars, (S.
Tankrrly,
v.
ir>
Car.) 67
Alabama,
seeks to
fix
same
suit
Cases have, at times, been presented in which the coven an tee having, in the first instance, failed to acquire the
of the purchase, and having brought
possession of the subject
upon the
title
upon him.
clusive
was
It
for
making
the
was applied
in
making
The
placed upon the record as a defendant in the suit under the adverse ti-
tie
Smith
v.
Compton, 3 Barn.
&
roy
v.
Adolph.
Poine-
an action upon
it
in a lease.
In a note
page 668, the reporter says, "a
preliminary objection was taken, viz.
that the defendants were estopped
ranting
title
to
from
insisting
on the
title
of
M.
G.,
plaintiff,
his title
(Tenn.) 44.
v.
Alder, 8 Humphreys,
stitute
title.
moneas
warrantizandum,
is
whereupon
summoned, and he make
is
de-
awarded," &c.
3
;
4
but these writs have long become obsolete.
In Park
v.
Bates, 12
Vermont,
Leavitt,
13
Brown
the
mence
judicial proceedings
against
570
258.
" In the
ordinary case," said
the Court in
Gragg
v.
Richardson,
" the
purchaser after getting possession is turned out of it by a writ
against him, of which his warrantor
has notice in the present case, the
;
his
in tin- |>ri>MM-iititm
part.
the war-
ing his
title
the
out of
present case."
3 Co. Litt. 101.
4
am
which
impleaded in an action in
cannot vouch, as an assize or
scire facias,
it is
competent
for
me
to
229
will
"A
From
is
is
necessary."
" This
a party by showing
notice
and
it
in general
it
the information
is
was
But here
derived.
a matter of no
the notice,
to say,
whom
have thus
pending, as otherwise I
shall not be allowed to have execution on
1
Paul
is
my judgment."
v.
Witman,
Watts
&
Serg.
Boyd
v.
Whitfield,
Arkansas,
20
was
it
called in question;"
is
"
as,
and
voucher by a writ of
in the one case, the
is
cited.
3
v.
The Turnpike
Company,
410.
2
what form
in
if it is to
a legal proceeding.
It
which he professed to grant
summons he proceeded
of
particular fact,
moment
itself
title
title
In these cases
in legal proceedings
notice."
and In
notice
means a written
230
officer,
less
required to do."
The view
thus expressed,
is
were suffered
as such a message,
hind
it,
to
resting in parol,
first
instance,
may
might
still
be in exist-
warn or
notify them.
In considering, in the next place, the effect of a notice,
seems to be settled that when the plaintiff in the action
ence to
it
in all
respects, the
"
Brown y. Taylor,
13 Vermont, 631.
u that the
plaintiff having commenced an action of ejectment against a
person
in
possession
of
the
lands
tablish
01-1
title
Icr
in
them
to the lands
On
conveyed.
it
make proof of
and
this
to
his legal
tice written,
appeared by counsel
2
Kelly
r.
in the cause.
Sec
of
infra,
and what
is
notice as to time,
seems
1
to
is
en
The
in reasonable time.
Wilbourne,
as to
not a
It is
231
follow-
J., in
Davis
the local
on
rules
this
28,
sub-
veyed
covenant of
one Robinson.
tion," said
Kennedy,
J.,
who
deliv-
ered the opinion of the Court, " offered to be proved was, that the title
to him by the
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
notice at
v.
Thomp-
son,
tice
be given at or
jurisdiction, should
made
of conveyance,
plaintiff'
in
error,
judgment
in eject-
He
come
and defend
in
his title.
furnishes
that of Irwin's
In the
perhaps the
safest
rule.
of cases, however,
the process might be served on the
last hour of the last day before the
first class
iv turn, so as to
the notice
rendered in
it
in favor of Robinson's
title.
does
tice ?
in
it
even
he
is
dence
return.
a
after
for
the
trial,
would be
suffi-
cient.
2
Such
Supposing
it
of this
at least
tion in Collingwood
Irwin, 3 Watts,
(Pa.) 310, where the former had conv.
suit.
nant
ally,
land
is
is
made
a party
adverse
is
no room
for the
application of the rule that the
judgment
Where
the covenan-
application.
But
mere
the
by the Court
fact of
Under
such notice.
error had
point of
view, I apprehend the Court erred
for even in case evidence of a reguthis
lar notice
title
to
the evidence, they believed that Collingwood was notified by Irwin or his
attorney, of the action of the ejectn in it IK 'inbrought, and was requested likewise t& appear and de-
fend against
it,
they were
making a
to consider
bound
to decide
it
according to the
it
in the action
Paul
it
Witman,
v.
mislead,
of
title
according
to
the
whole
evideuee
Avliirh
trial
i
Paul
v.
(Pa.) 410.
Witman,
Watts
&
at the
Serg.
233
him, might,
dence of the
and
not,
many
title
most cases
in
work extreme
cases,
injustice.
Evi-
it
upon the record, and yet that title might be one derived
from the covenaritee himself subsequent to the purchase.
To
exclude evidence of
this,
be obviously improper. 1
Booker
175
384
Pitkin
v.
v.
Leavitt, 13
Wilson
Thompson,
73, are of
Strob-
The
remarks of Wardlaw,
v.
Vermont,
McElwee,
v.
ton
The only
following
J., in
Middle-
contained in
" In
many
a dissenting opinion.
where a record of
cases,
judgment
is
some of which
Bender
fer, are,
171
Bond's Adms.
usually referred to as
strengthening the evidence as to competency as well as effect. See Duf-
Scott,
Carrington,
field
v.
is
v.
State,
201
Goodwyn
Whitmore
Davis
v.
v.
v.
v.
tree,
Columbia,
Book
5, p.
393.
who
is
bound
or personalty, and to
all
cases
20*
trials
N.
1 Hill,
v.
& M'C.
29
Round-
and expense of
the
where
in
of
own
in our
Wilbourne,
two
practice
and
Taylor, 2 Brev.
case of Allen
ogy
modern
Ward,
v.
warranty, the
Poulte-
Haywood, 236-282
indemnify,
v.
Fromberger, 4
On whom
burden of proof.
arises is as to the
is this
to be
its
title 1
So
it
is
and
which,
1
of course, his covenantor would not be responsible.
The
same principle is applied to the doctrine of notice. Beyond
this point,
Where
enough
if
it
title
to
2
the execution of the deed to himself.
veyed by him was tried more especially if the vendor assisted in the
;
The
defence.
failure
of the war-
Wilbourne)
is
will
title
cording to our
own
decisions,
by the
his
was in
title
Phelps
(Verm.) 157
(Ken.)
375
v.
;
v.
Swenk
ground that
all
v.
Stout,
feiulunt
and
Dutch
judgment, with
Aikens,
Bell, 3 Bibb,
Sawyer,
Booker
judgment
till
hud a
;
issue,
plaintiff's
demunvr.
in
1
Church of Schenectady,
-'
235
in this connection is
question to be considered
where
there has been no
a
of
as to the effect
judgment
The next
tice,
the ejectment
suits,
to
they are
defend
now
es-
sidered.
paramount
Upon
ants.
The
been joined.
and
affirmative,
the
burden of proof
He
lies
upon him.
false.
title
was not only in evidence in the former suits, but it was virtually admit-
It
plaintiff to
may have
recov-
Buckels
v.
The
Mouzon,
decision in
Strobhart,
(S. Car.) 448, proceeded in effect
upon the same grounds.
the ground that their right was superior to that of the Dutch Church, but
It has,
of a suit upon a
when
title
in evidence,
judged
defective,
apparently su-
it
But
"
that
is
There
is a short, and, I
think,
conclusive view of this question. The
plaintiff
been by
title
the
Chancellor
but
this, it is
Chancellor had enjoined the judgment, which decree the Court of Ap-
236
upon
been
title
is
is
But
judgment.
was under
trial
came on unexpectedly
to
the
covenantor, his counsel having assured him that it could not be reach-
ed that day.
1
Collingwood
title
paramount,
as in Fields
v.
Hunter, 8 Missouri,
Woodruff, 15 Illinois,
15, unless indeed, the record of the
Sisk
128;
v.
v. Irwin, 3 Watts,
(Pa.) 310, supra, p. 231 ; Paul v. Witman, 3 Watts & Serg. (Pa.) 409. See
Parker, 10
be
itself
in
most
to
in
Booker
v,
v.
Weatherit must
Possibly it
would have been better in that case to
title.
all
son
the
deemed
sufficient evidence,
cases, of
an eviction, as seems
t. Bell,
3 Bibb, 1 75
Han-
unaccom-
itself,
nell
burden of proof
on the party who was bound to make
a good title, and who was supposed
to know what title he had wlu'ii In-
Paul
ro,
to
v.
v.
Witman,
Watts &
S. i-.
237
may
it
title,
be for a purchaser,
to give
v.
Heath, 11
218
Id.
4 Id. 4
Hanson
v.
r.
Devour
Buckner, 4 Dana,
v.
In Somerville
15.
Hamilton, 4
v.
left
whom,"
Treat,
Ch. J., who delivered the opinion,
" does the law cast the burden of
proof,
notice of the
title
is
riot
vestigated.
by the
fails
t6
fully
He
plaintiff in ejectment.
do this successfully, he
ment may
plaintiff to
seems to favor
We
regard
this
much
title.
in this coun-
conclusion.
If he
is
con-
it
the party
fore he
Strode,
to
Miller
Prewit
r.
notice
when
with interest.
By
purchase-money,
giving the war-
show that the warrantor, by appearing and defending the action of ejectment, could not have prevented a
ment pronounced
It
it -as
is
in a proceeding to
38
in the action
many
it
Although
was permitted
was only
common law
in case of
war-
war-
he were impleaded
in
any action
in
convenience.
It
by no means
fol-
the grantor.
may be
It
from
obtained
the disponee,
when
the
eviction
is
threatened, ought to intimate his distress to the disponer, that he may defend the right granted by himself;
by
collusion,
fendant to
title
originating in his
There
own
default.
only
evidence of
Woodruff.
It
the
eviction
of
latter to
field v.
Scott, 3
3 Barn.
v.
&
Adolph. 408.
Compton,
" A
Sugden says positively,
is not bound to
notice
purchaser
give
of an adverse suit to the covenantor."
2 Sugden on Vendors, 540.
Sir E.
"
So, by the Scotch law,
Regularly,
101 b
Ch. J.
vendor,
is not liable at
loses
134
Co. Litt.
all
warranty,"
all,
By the
" the
purchaser
recourse to him.
Code of Louisiana,
latter
This no-
given by calling
in the vendor to defend the. action
tification is usually
made
in
is,
in timr tor
239
voucher, notice, seems not necessary to be given, yet its advantage is, as has been seen, to enable the covenantee to re-
show
it was
is
under what
not a
title
following
authority
to
The
notice
upon
upon the
belief of the
Fourthly.
on
its
the vendor to
warranty
is
lost
provided, however,
show that he
mand, and which have not been employed, because he was not summoned in time." Art. 2493-4. By the
civil law the vendor is not liable for
his
In
action, unless cited to warranty.
Morris v. Rowan, 2 Harrison, (N. J.)
" after
307, the Court,
looking at all
the authorities, did not find that the
See Duffield
v.
Scott, 3
Term,
Compton, 3 Barn. &
Adolph. 408, and supra, pp. 99, 227.
There are several States in which
provision seems to be made by stat376;
ute,
Smith
v.
or perhaps
local
custom, for
is
240
in the action
it
circum-
and
some
in every case in
ness on
the
one hand to
subject the
covenantee to the
impose, and, on the other hand, to a fear of the encouragement to negligence, looseness of practice and perhaps fraud,
to which an enlarged interpretation is supposed to give rise,
1
See supra,
2 "
p. 219.
The
Koerner,
J., in
3 Gilman,
(111.)
Beebe
179,
v.
Swartwout,
" consists in
this,
and I
that Courts have departed
think not improperly from the stern
technical rules of requiring actual
deciding
be considered, not as acts
of eviction, but as acts equivalent in
what
law
shall
to actual eviction,
and what
shall
may
when no
can be laid down, and i-arh partii-ular case must be decided upon its own
merits." It is believed, howevri that
certain acts, as
being equivalent to
a tolerably harmonious
classification.
ciple,
culty.
The
two
cases
upon
this subject
principal heads,
actual
first,
may
tive eviction.
Under
the
First.
of these heads
first
may
be classed,
is
is
by process
caused by the
common-law
Where
Third.
eviction.
ual
Under
ranked
in four classes
First.
Where
Second.
Where,
may
be
had any
it,
actual
by reason of
Where he
Third.
Fourth.
Where
title
and,
the eviction
is
itself,
but
of something which
represents the land, or of some incident
to its enjoyment.
i
For the
Law on
may
mette,
isiana
be had
loss,
de Vente, n.
82, 86, 100, 102, 166 to 183
Troplong, Ch. VI. n. 415-463; Traite
to Pothier, Cont.
des Evictions
et
de la Garrantie For21
suffered
tality of the
"The
eviction
is
the
to-
First.
entitled to
We
But we
signification,
and
to
understand
in this case as
it
synonymous
by a stranger there
eviction
title,
to
war-
we have
6
extend,
This passage
cited
Funk
of
and approved
v.
Cresswell,
Clarke,
(Iowa,) 86.
2
Hamilton
in 1829.
See
dell,
5
v.
it is
cited
was decided
122;
and
Kerr
v.
238.
6
See supra,
p. 165.
Shaw, 13
Id.
243
ought not
"
by
to*
legal
stop
mon law
Law
Greenvault
y.
645.
(N. Y.)
Davis,
"Upon
Hill,
principle,"
R. (N. Car.)
386;
Parker
v.
Booth
y.
fact, all
In Stewart
y.
Drake, 4 Hal-
ousted of the possession by one having a lawful title to the property, par-
amount
to the
title
of the grantor,
the covenant of
may
Cobb
sue."
Wellborn, 2 Devereux,
(N. Car.) 390 Grist y. Hodges, 3 Id.
200
Hagler r. Simpson, Busbee's
y.
See
Foster
u.
infra, p.
Pierson, 4
269
et seq.
Term, 617.
244
title
to
which brings us
under
Entry
but
its
exercise
of the better
was no
had not
title
eviction,
first
to do that
do without putting
to
any of
its
4
between them.
l
3 Black.
Com.
175.
And
even
tolled or taken
away by descent
cast.
27,
8 In
Massachusetts, as also in
jrivtm him,
in
Smith
v.
Maine
by
statute,
a right of en-
c.
131.
Gore
Sprague
v.
v.
Baker, 17
Id.
590
Smith
v.
The
authorities
doing of some
So
in
New
lu-ad
seemed
cases which
1844, p. 197.
under the
St.
Rev.
1842,
39.
and Rhode
try,
to require the
positive act, as in
it
be complete
surrender or abandon
at first,
it
to the holder of
seem
to
the paramount
more properly classed
be
might,
under the head of constructive eviction, since
title,
it
may
be said
term eviction forbids the idea of voluntary disposIt is difficult, however, to determine
precisely in
every case how far a yielding up of possession to an irreis sometimes termed an ouster in
sistible title
(or as it
pais)
that the
session.
of possession
for in
Hunt
where a
v.
plaintiff in replevin
pleaded
that the landlord had broken and
pulled down the roof and ceiling of a
summer-house on the premises, " by
means whereof the plaintiff had been
So
ly a trespass, and no eviction."
in Reynolds v. Buckle, Hobart, 326 a,
" a
plea that the plaintiff did enter
evict, to dispossess
rent, because
landlord,
the
pended.
The term
amount
now
ent day to define with technical accuracy what is an eviction. Latterly the
word has been used to denote that
which formerly
to express.
it
be
by a judicial course,
the enjoyment of
said to
to
was
is
is
it
to
mean
may
in
no such actual
is
change.
Hamilton v Cutts
is
on
was no
may
necessity for
him
himself against a
There
is
no
which he
is
must ultimately
satisfied
prevail."
" Tiie defendant
plexities
and expenses.
that character,
intention."
1
&
He owed
its
attendant per-
Again, in Radcliff
So
(Ken.) 292,
in Clark v.
llawle, (Pa.)
McAnulty, 3 Serg.
372, it was said by
mony
And
in
Greenvault
v.
it
v.
was
Ship, Hardin,
" Had the
said,
plaintiff refused to yield that just respect and due obedience to the Court
writs of possession
perise of a lawsuit
should deprive
him of a remedy upon the covenant,
The grantor is not injured by such
an amicable ouster
cessary,
it is
on the contrary,
it
thus saves
and preventing
accumulation of costs."
tin-
further
24/7
remain
He was not
of duty or contract, to withhold it.
a
that
bound to seek redress through litigation
might turn
either
and
out to be fruitless with the party having the title,"
and
has
been
the law as thus stated
recognized
applied in
cases.
many
1
Drew
y.
Woods, Ch.
537, per
J.
2 Woodward v.
Allen, 3 Dana,
Hanson v. Buckner's
(Ken.) 164
Exr. 4 Id. 254; Slater v. Rawson,
;
Bedel,
v.
v.
Patton v.
Peet, 14 Connect. 254
McFarlane, 3 Penn. State R. 425;
;
Stone v.
(12 Penn. State R.) 106
Hooker, 9 Cowen, (N. Y.) 157
Fowler v. Poling, 6 Barb. S. C. (N. Y.)
;
168
v. Cotheal, 1 Duer,
Haffey's Heirs v. Birch-
Blydenburgh
etts,
v.
v.
Ferris
v.
p. 246.
was
it
ess,"
An
"
eviction
said in
tee
is
may
is
him
to his ac-
the covenant of
warranty.
true the Chancellor said in Hunt
in
v.
right
to
give
up voluntarily
stranger claiming by
but
his
remark was
title
obiter
to
paramount,
and he was
he takes upon himself the burden of showing that the person who
entered had a title paramount to that
test,
of his grantor."
Beebe
The
expressions in
mere adverse
narrow and techniSee infra, p. 259.
in distinction to a
possession in its
cal signification.
Although
Hoy
v.
Marsh.
218, which
rigid
tions
In
Hoy
v.
Taliaferro
it
was
said,
248
first
be
title
be tortious
so,
for,
any event have a
1
remedy against his covenantor.
Being then satisfied that
the claim is what is termed " by title," he must assume the
responsibility of determining upon the chances of its suc-
or not
cess,
if it
and
if
in
it, it
is
at his
own
he has yielded.
But, by referring to what has already
been said on the question of notice, it will be seen that the
burden of proof is capable of being much modified, or entirely
Where
lished
by a judgment
in
an acunder judgment of
eviction
tual
Court
ouster
is
may be
an eviction.
be
sufficient to
effect
in this
such
of
titles
titles
collaterally."
See these
v.
Y.)
cases
v.
Hightower,
12 Smedes & Marsh. 481, 482, Clay" The utmost limit
ton, J., remarked,
to which the cases cited by the coun-
157
Green vault
v.
Davis,
481.
the
title.
will be
much
compelled to
be conclusive evidence of
will
But where
paramount
ment, the burden of proof
249
there
is
no such judg-
rests
make
if he
particularity as
it
in eject-
ment.
Moreover,
it is
believed that
it is
amount thus
paid, yet
deemed unnecessary.
But
one case, it be considered as indispensable that there shall have been a preif,
in the
The
1
would seem
in the other.
Miner
v.
Thompson, 1 Spears,
(S. Car.) 67; Wilson v. McElwee,
1 Strobhart,
See su(S. Car.) 65.
v.
pra, p. 239.
2
See
Thus
that
Middleton
tiff
title, it
seem
to be,
and such an ouster would have entihim to his remedy on the covenant of warranty, as was decided in
Hamilton v. Cutts." So in Dupuy v.
Roebuck, 7 Alabama, 488, it was said :
" It was
necessary that some particular act should be shown by which the
plaintiff was interrupted, otherwise
tied
possession
while in Hagler
v.
Simpwhere
up the possession
250
that
title
and adversarily
it,
who
possession to one
a paramount
him by
sons of justice
which are applicable to the
ception.
190,
nois,
stated
v.
Vail, 1 7
the opinion.
"
it
under
by litigation and
by the same reaand good government
force or
sustained
is
however,
This,
first
is
ex-
not to
older authorities
thus well
who
J.,
The
Illi-
claims
without resisting
delivered
by Eaton,
this
title,
asserts
The
or that
will
it
and
want of pos-
paramount
title
session the
covenant
will
it
him
justify
his
is
broken
nor
in abandoning the
His possession under the title acquired with the covenant is not dis-
nantee, the premises were in the actual possession of another, who held
that
title,
soon as
which
may now be
well settled
by
considered as
authority,
and
sus-
estate,
it
feels
its
must act
in
good
covenantor, and
faith
make
towards his
the most of
resistance
title
to
etly,
the
pressure
Whenever he does
he does so
of that
yield qui-
at his peril."
anticipate its
may
Under
II.
we
will con-
sider,
Whether
First.
the
paramount
sion at
all,
title,
by reason of
eviction.
v*
which,
if it
as made,
and
also that
it
the land,
is,
The statement
v.
and
As
Funk
approved
plaintiff'
Chapter X.
set forth
shall not
action
the
title in
by a tortious act."
plaintiff declared
The
latter
half year after the date of his lease the plaintiff might
have entered and enjoyed, but that for non-payment of the
first
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 en-
in a case
rule.
Thus,
United States
in
in favor of a
narrower
before the
1825?
it
that possession has never been obtained is immaterial, because not a breach of the covenant, and a majority of the
Court are disposed to think may be disregarded on a genl
Ludwell
458.
ton,
ment
v.
Newman, 6 Term,
Hawkes v. Or-
In the case of
5 Adolph.
&
to
to give
averred,
properly
possession might,
be a breach of the covenant for quiet
enjoyment.
a
demurrer
eral
York
in the case of
Kortz
v.
in
New
and
title
proprietors of the
Hardenbergh
patent, this
Taylor, has failed to receive judicial sanction in the other States of the Union, and
the reasons upon which these decisions are based have been
where Ruffin,
lina,
Court, said,
"
The
v.
North Caro-
was
from
this, in
But
that
is
a very
in fact
5 Johns. 120.
2 St.
John
v.
Y.) 601.
22
in that case to
get
Supra, p. 251.
Grist v. Hodges, 3
(N. Car.) 200.
Devereux,
possession.
title,
sale.
It
As between
lease.
strict principles, in
by the
statute
cases,
i
The breach
in
the old
common
amount title.
2 Duval v.
Craig,
Curtis
v.
2 Wheaton, 62;
Deering, 12 Maine, 501
255
accompany
would seem
thority,
to be this
enjoyment or of warranty will be held to be broken, without any other act on the part of either the grantee or the
claimant
tion of his
remains to inquire
It
to cases
where, as
how
is
would apply
land
is
With
deemed
him to bring
a
on
the
wrong-doer,
trespass against
ground that the legal
seizin draws with it the possession, unless there is at the
to be
in possession so as to enable
Vermont
University of
Id.
Loomis
52;
Joslyn, 21
Bedel, 11 N.
v.
v.
Hamp.
Banks
i\\s
v.
v.
Heath, 11 Smedes
(Miss.) 206
Id.
7 Id.
Whitehead,
473;
Littell,
Witty
Cummins
(Ken.)
23
v.
Den-
83
&
Marsh,
Hightower, 12
Kennedy, 3
Barnett v. Montv.
gomeiy,
When
6
such land
is,
In
Moore
v.
Vail, 17
We
admit
under
Title."
l
See
v.
Call,
56
title,
sion,
covenant.
Mass. 484
was an
II Johns. 385;
Church, 3 Serg.
Bush
v.
When
Mather
v.
true
owner
will
be deemed disseized
plies only
such deed or
for
As
tle,
possession of
the trespasser is
bounded by his occupancy and consi
(jitciitly the true owner is not dis;
title.
This, however,
For
same
law
which
is
not in
Taylor
v.
John
v.
Palmer, 5
v.
McCarty, 8 Johns.
Hill,
(N.
Y.) 599.
a
Waldron
257
In the
They were
title.
in such a con-
Now have
an ouster or disseizin might follow.
When the mortgagee acquired
the plaintiffs been evicted I
a paramount title under the mortgage, the legal seizin
dition that
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
rightful owner, or that such
the
prem-
made
suit.
Kerr
Kortz
v.
Alexander,
v.
Wendell, 281.
22*
Citing
Hill,
Green vault
v.
all
let into
Davis, 4
rights.
was necessary
writ of assistance or
any other execution on the decree.
The decree was executed the moment the mortgagee re-
the mortgagee.
He has since exercised acts of ownership
over the property and no one has questioned his right to do
I think there has been such an eviction of the
so.
plaintiffs
as
amounts
So in a recent case in Illinois it was said, " In this country where so much of the land which is the subject of sale
and transfer
is
actually wild and unoccupied, rules on the
of
eviction
as well as of possession must be detersubject
mined in reference to such a state of things. Although in
this case
it
"
is
still
plain
cases.
'
foreclosure
'
tliat this
changed.
paramount
had recovered ejectment against
the covenantee but as no execution
had been issued on the judgment and
the possession had not been changed,
it was held that there was no eviction.
There again, the covenantee
was in the actual possession of the
land and continued to hold it when
the action was brought on the covenant.
But here, as there was no actitle
any
no execution or other formal proceeding was necessary for tlio
one
else,
purpose of giving
decree."
full
effect
to tin-
59
once held the legal title ; and the lands being then actually
vacant, such legal title drew after it the constructive possession.
possession,
i
Moore
v.
it
Vail, 17
Illinois,
185.
In
ranty
it
of the sale to the plaintiff the premises were in the actual possession of
which
after left
state they
them vacant,
presumption
by an
title
did not
constitute
an eviction so as
statute of limitations.
ued
it
eral years,
"
upon," said the Court, is the
It is not de-
title
and that
to give
the plaintiff a cause of action on his
covenant of warranty.
The plaintiff's constructive
possession contin-
until
all his
grant-
ble
first
instanti.
Rawle on Cove-
From
the facts
al-
appear that on
the first of September, 1836, Lynch
held possession of the premises under
ready
stated, does
it
till
They
Mrs. Lynch
till
260
and not an adverse possession such as would ripen by lapse of time under the limitaunder a
title
actually paramount,
title.
it
On
first
of
them involves
title
by a judgment or decree, an
title,
of possession.
paramount
title,
the one to
the covenantee,
voluntary retirement
is
title
applies
the law to prevent the
relation between the dispossessed cov-
formation of a
1
Supra,
p.
Phelps
v.
20
new
et seq.
Beebe v.
where the subject was elaborately examined both by counsel and
the Court Moore v. Vail, 1 7 Illinois,
183,
there
is
title.
no
.
The
fact of possession,
by the
disconnected from
as proved
therefore
witnesses, stands
any
title,
we cannot know
and
that
it
261
title.
In an action on
the covenant of warranty, a plea that a year after the eviction of the covenantee he had taken a conveyance under the
title
subsequent
affect
the rights
tions
might be opened
to
fraud,
it
may be answered
that the
for the
question of fraud or collusion will always be open
benefit of the covenantor, and he may have greater difficulty
in establishing it in proportion as the transaction is cloaked
On
By
tial
it
degrees, an eviction, which has always been held essento a breach of the latter, is frittered away to a mere
name.
ment
holds out at least an encourageto fraud, and the temptation to it will increase in pro-
it
It has
are relaxed.
portion as the requirements of the law
also been argued that the case is analogous to that between
See Poyntell
v.
is
it
justify a di-
therefore,
Some
if
by
years," says,
is
him
may
case
it
ments
in
But in such
the same tene-
for
it is
dented, in which case such plea lieth not for the lessee to
And Coke,
plead."
"
The reason
of this
in
for
is,
must be quid pro quo, for contractus est quasi actus contra
actum, and therefore if the lessor hath nothing in the land,
the lessee hath not quid pro quo, nor anything for which he
should pay any rent."
the lease were
1
58.
Littleton,
by indenture,
And
Abridgment, Estoppel,
said " Nota, in
*
title,
Tenant
by deed
Hence
in Brooke's
pi.
Littleton's
for Years,'
if
8,
it
is
Tenures,
one lease
by
parol,
(in
it
lease be
by indenture,
Co
LHt. 47 b.
for that
is
an
we come
263
We
5,
Dampier, J., in the year
nor
one
ant,
claiming by him, can dispute the landlord's
any
This I believe to have been the rule for the last
title.
said
by Lord Kenyon,
"
remarked,
3
179^, but in connecand Tilghman, Ch. J., has
in a case decided in
The
principle
the strict rule of law." 5
4
;
was
certainly a departure
in the old
its
law,
origin
from
common
must be
he shall be estopped from setting forth anything in opposition to its terms or intent in a suit
brought in order to
which
and makes,
in
its
absence, the
mere
title
Raymond,
2
Doe
v.
1551.
&
Selw.
Cooke
latter, since, if
Cobb
v.
Arnold, 8 Metcalf,
(Mass.) 398.
5 Hamilton's Lessee
v. Marsden, 6
See also Vernam v.
Loxley, 5 Term, 5.
4 It
being held there, as elsewhere,
that in an action of assumpsit for use
Binney, 47.
v.
issue sought to
such
Smythe, 4 Maule
347.
3
of the
Smith,
6
Note
to
ed.
the existence of a
title
be at once
of these covenants
is
the grantor.
It will further clearly appear from examining the statute
11 Geo. II. c. 19, that it was deemed no more than just
cases of conflicting titles, a tenant should be protected against his landlord by payments to the holder of the
that, in
paramount title where such title appears by matter of recand even in one case where it did not so appear. The
ord,
llth section of that statute, after reciting that the possession of estates was rendered very precarious by reason of
the fraudulent practices of tenants in attorning to strangers
who
all
made pursuant
and
in
or lessors, or to any mortgagee after the mortgage is become forfeited." The fairness of this proviso is sufficiently
manifest, and the rule it contains has been observed both
where such a
authority, and
1
And even
it
and where
not of binding
has been repeatedly held that a payment of
statute
is,
of landlord
and
it
Scott, 767;
Mees.
&
is
Doe
v.
Rose. 728
Seaton, 2 Crompt.
;
Jackson
v.
Row-
he
permitted to
ia
note
Hopcroft
v.
Keys, 2 Moore
&
Doe
d.
Howell
a Lunsford
v.
i>.
Ashmore,
Turner,
2 Zabris-
J. J.
seem
reality they
tive eviction.
to
Jones
Magill
v.
Smith
v.
v. Clark, 20 Johns. 61
Hinsdale, 6 Connect. 469
Shepard, 15 Pickering,
(Mass.) 147
Id.
476
Stone
Weld
(Mass.) 494
Gushing,
Munson,
v.
Patterson, 19
v.
Adams,
Metcalf,
355
Greeno
Vermont, 37 Simers
(Mass.)
9
Putney, 4
v.
George
&
and
it is
paid accordingly, as here,
the relation of landlord and tenant
may
arise
between the
parties.
mortgagee
Or,
may be
occupation.
Therefore, under the
circumstances of this case, it is plain
Biggs, 9 Barn.
re-
paid to him,
v.
>e
v.
bers
Pope
Cress. 245.
and
198
note to Moss v. Gallimore, 2
Smith's Lead. Cases, 604, (5th Am.
In Doe v. Barton,
ed.) passim, 697.
11 Adolph. & Ellis, 314, Denman, Ch.
" The tenant
be said to
to
Mees.
J., said,
may
in
been treated as a
trespasser, where-
stand."
2 In Ross v.
Dysart,
Penn. State R.) 454,
"Nor
9 Casey,
(33
it was said:
is it
therein.
fraud or collusion,
tion in law,
is conceded on
all hands that
where a lease is made by a mort-
original
It
23
lation
266
mortgagee.
into
step
the
to
the
Pope
tenant,
his tenant,
was
which
v.
and
entitle
jiot
necessary
the
to
"
this,
of the
decision
case,
in possession.
Clearly, if the tenant, upon reretire
from
the premises, no action could
the
notice,
ceiving
be maintained against him by the mortgagee, for the rent
to
gagee, the tenant would, notwithstanding he quit the possession, be liable for the rent until the expiration of his
All the
term.
effect,
then, of a notice,
and a continuing
to raise a
possession is,
the tenant consented to hold under his
the old terms, and this
is
signed
is
for letting
new
viewed in law as
ground-rent go
"
if
landlord upon
there had been
less
said plaintiff
said plaintiff
in fact says that the said defendant,
in arrear,
tels
in
presumption that
was so requested
when he
as aforesaid, save,
defend, &c."
1
320
2 9 Barn.
Brown
Beebe, 2 English,
Gore
&
ley, J.
3 Evans v.
342
v.
Fitzgerald
(Ark.)
Elliott,
v.
Rep. 9; S. C.
* In Brown
Stevens,
v.
1
v.
Man.
Ad.
Storey,
&
&
Scott's
Jay-
Ell.
N.
Gran. 117.
Storey, sv/>ni.
267
and demands
'
is
threaten
liable
for
mesue
mortgagee cannot
same
results indirectly
mesne
action for
From
1
&
profits.
these remarks
Mayor
Mees.
of Poole
v.
it
will be perceived
Whitt, 15
Welsby, 577.
2 See accord.
Clapp v. Coble, 1
Dev. & Battle, Ch. (N. Car.) 177;
Morse
v.
(Mass.)
454.
Metcalf,
Putney, 4
Ross v. Dy-
v.
George
13
Goddard,
177;
falls
due
Giles
u.
Com-
McKircher
son, 289;
Mayo
v.
Hawley, 16 John-
v.
Shattuck, 14 Pick-
the tenant
ably refer, for a more ample consideration of the subject here casually
noticed, to
v.
Gallimore,
Cas. (5th
Am.
ed.)
268
attributed to
it
will not
Whenever
extensive.
it
is
ascertained,
judgment
may
title."
tenant
may
co-
by a competent
title
is insufficient
between them
be
is
it
founded.
protect himself
In
eviction
The mischief
received.
to which, as
must
lead,
would
evi-
Hence
tion.
Lunsford
shall,
Hill,
Ostcrhout
r.
Patterson's Lessee,
Slinrmakrr,
Kenada
in
M!;
1 Swan, (Tenn.)
311; Winterbottom v. Jngham, r
Queen's Bench, 611.
3
Or, as has born well rxpivssi-d
14
-oiiri,
the
But
possession.
him
v.
to the Du.-lu-s
..I
Till:
COVENANT OF WARRANTY.
269
title arid
posses-
There
room
appears, therefore,
rule than as between landlord
and tenant.
Hence
may
it
paramount title, either based upon a mortgage or a judgment of a court of competent jurisdiction, it would, a
held that a
fortiori, be
constructive
eviction,
amounting
Thus the
a tenant
an outstanding
The
son.
an
that
to
in a third per-
title
result of allowing
deny the
ination,
this.
it
on the former
forward
to
either
title itself
sustain
it.
This would
it
themselves
therefore, possession
is
when,
obtained under
Am.
ed.)
23*
"
J.,
"
is
mentis,
be found not
to contradict
The
which in covenant
demurrer, or
it
plea of eviction.
is
is bad on
tantamount to a
name
of the
of such plea."
to the
sufficiency
270
whoever might
and such would appear
title
by
now
decision.
McCarty,
the
New
in
plaintiff',
and not
to the grantor's
title.
ment
is
shown
or a disturbance of a possession
demurrer is well taken."
that the
New
itself,
we
It is,
are of opinion
however, believed
in
else-
where.
2
Thus,
in the case
8 Johnson, 471.
3 4 Mass.
350
Supra,
p. 246.
17 Mass. 590.
271
The
title
1
appears both by the statute of Geo. II. and in the cases
generally, on the ground that a mortgagee (except in New
by a court of competent
it
jurisdiction,
no
by
it
Thus
in
title is
unnecessary.
a recent case in Pennsylvania, a mortgagor con-
to the plaintiffs,
sheriff's sale
and
therefor,
this
was held a
Supra, p. 264.
Notes to Keech
-with those
v.
Hall, 1 Smith's
this
case
suffi-
presented in Waldron
v.
McCarty, supra.
4
Brown
(12 Penn.
v. Dickerson, 2 Jones,
State R.) 372. "It is
who
deliv-
the
have a breach of
it,
ordinarily,
it
is
title,
the
premises for sale at public auction,
and the grantee under the subse-
to the supe-
rior title
sertion
ouster or disturbance
sufficient
to
sustain an action
246.
on the covenant of
warranty, notwithstanding there was
no actual dispossession. It is further
ruled that if one of several grantees
under the subsequent conveyance,
session
make
522),
right
ter or disturbance
by means of
it
at law,
possession, all
These principles
are directly in point, and if respected,
rule this case. The weight of modern
on the covenant.
authority
King
is
v.
and the
that
possession,
tled in
464,
the profession, in
many
States of this
many
We particularly refer
of the Courts.
to the learned
in
74,
Loomis
v.
(see this
Bedel, 11
case more
where
it
to C, with
there
premises
and
if
273
become
for
the costs
against the
is
supported by
authority.
v.
enport
We
Bartlett, 9
Alabama, 179.
therefore
authority is
the nonsuit
to
ought
be
taken
Whitney
ing,
York
v.
Dinsmore, 6 Gush-
"
However
this
may be, we
con-
Com-
The
New York
whether, in
all cases, a
party must wait until he
is
actually evicted or ousted, before
he can have the benefit of the covereports.
question
is
nant of warranty.
We hold that
there may be other acts of the party
having a paramount title, which may
be equivalent to an eviction. In the
case of Duvall v. Craig, 2 Wheaton, 45,
it was held, that if a
grantee is unable
lent to
if
an
the grantee
claim
is
title, it is
is
equivathink
And so we
eviction.
and a
in possession,
ing a
off."
1
mount
title
and the present case,
are of opinion, depends on a sim-
we
ilar principle."
2 White v.
(Mass.) 8 1
Whitney, 3 Metcalf,
Bevis v. Smith,
Eastabrook
v.
Maine, 244
Id. 1 94
Cole
v.
Lee, 30
Id. 392,
v.
more
Tuite v. Miller,
particularly, infra)
(Ohio,) 5 West. Law Journal, 413;
;
whose
son
/ra,
"
decision,
v.
it
was
said in
John-
v.
the
measurement
and
assignment of
which commissioners
The judgment
over.
set-
ascertained
and fixed by
dower, upon
were regularly appointed, and their
return was made the judgment of
the Court, which directed a writ of
brance,
damages
tiff (the
assignee of the covenantee)
rested his case here, with proof that
On
the
law,
and was,
breach
ize a
suit; not to
recover nominal
dower would
the ground
this claim of
had been no eviction. But the judgment was reversed by the Supreme
Court, and Lumpkin, J., in deliver-
The
legal
is
presumption
rendered voluntarily.
testify that
The
Leary, the
dollars.
none
We
five
If,
Davis
has
hun-
witnesses
plaintiff,
that
sustain the
v.
ment of
ages) but the testimony of the witnesses seems to have merely been
;
to
it,
but
modern
is
it
dicta
authority.
premises by himself, be obliged to
yielded possession
title
money he would
p.
The
34.
case
is
worthy of con-
sible,
is
to
title
acquired by him
cannot amount to an eviction, but
will be treated as a purchase of an
In
Hannah
v.
Henderson, 4 Indiana,
was held that the mere assignment or assessment of dower constia breach of the covenant of
tutes
warranty
it
Lewis
v.
Law
Lewis, 5 Rich-
ardson's
But
South
is,
Nott
& McCord,
supra, p. 219
v.
Weatherbee,
Aikens, (Verm.)
thereof,
outstanding
it
superior
the
better
title
ed to
If he had yield-
by giving up possession, 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
it
to avoid
a sacrifice of
and even a
the
judgment
consequent eviction, will not authorize a suit against the grantor on the
covenant." In Reasoner
son,
5 Indiana, 393,
v.
Edmund-
although the
in the declaration
same
it
as those in
was
said,
plaintiff
had either
" The
eviction.
case,"
said the Court, " is clearly distinguishable from Hunt v. Amidon, 4 Hill,
had been no
76
may, perhaps, be said, that there should be a distincbetween a lease and a purchase of the paramount
It
tion taken
Hunt
4
Amidon,
v.
(1 Hill, 147
S. C.
by the
foreclosure,
livered
Hunt by an action
law founded upon a title paramount to that which Amidon conactual eviction of
veyed
" It
to
at least doubtful
is
whether an
tained
tarily to
title
and then
mount,
for quiet
premises.
The defendant
therefore
and
bound
to
or whether the
sale,
which
pos-
at
let into
upon production of the Master's deed and the actual sale under
that decree, were not of themselves
equivalent in equity at least to an
session
suit,
upon
stranger
is
claims
by
title
entirely justified
para-
by the
it
is
absolute-
claim
ly necessary that the adverse
should be hostilely asserted, yet that
is not necessary that the assertion
should be made by a judgment, or
it
even a
suit,
it
is
ne-
or a suit
is,
in this relation,
no more
277
in case of a lease
paramount
title
it is,
who
rendered possession
right by the
was obviously
held that there was an eviction pro
tanto, and the remarks as to the pur-
infra, p. 288).
Fowler
Poling, 6 Barbour's S. C.
(N. Y.) 168, Edmonds, J., said, in de" The
livering the opinion,
grantee
surrender
may
possession to the rightful
v.
owner and
him
ouster to entitle
to his action
on
obiter,
possession
until
at
least a
demand
made by
these circumstances
to them.
Under
it
In Paul
v.
Witman,
Watts
&
which is unquestionably
but the change of possession
be a constructive one
there
possession,"
correct
may
Court correctly
said,
"
judgment
in ejectment, without
eviction
more, is not an
there must be a change of
purchaser
will lie."
In
enant,
thrust
out."
partition
oft'
to
them
in severally
24
and
sur-
If,
till
he
is
literally.
in
whereby
all
title is
dissolved,
Secondly.
The next
tive eviction is
title.
and
whether
title,
remembered
to obtain
only
These
are,
" If
they (the holders of
title)
clia-cr V
an indispensable ingredient
in the
v.
v.
Spencer, 6 Barr, (Pa.)
seems hardly necessary to
remark, that in every case in which
an eviction would be held to be
Poyntell
257.
It
279
Where
yield.
there
was a judg-
was held by some authorities to be primd facie eviwhen the covenantor had proper notice of the acand
dence,
ment,
tion,
it
it
ered, were
it
by
not that
itself the
when
there
the better
question
is
title.
now
should
to be consid-
no judgment or decree
purchase in any
this
it
may
title,
briefly
his covenant.
is
To
intended,
it
is
easy to hide
it
primd facie
be no means by which a covenantor could possibly be injured by an affirmative answer to the question under inquiry.
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
1
2
3
applies to actions on
Supra, p. 248.
Supra, pp. 236, 248, 249.
for title
Wilson
v.
the covenants
McElwee,
Strob-
280
then, he
must
suffer
and
ment
and
it is,
therefore,
most
covenantor
little effect
to be obtained
in
Supra,
p. 230.
Supra, p. 138.
3 Tufts v.
Adams,8 Pickering, (Mass.)
550; Cole v. Lee, 30 Maine, 392.
4
1 1
N.
kinson,
kin,
said,
.1.,
"
iv
Lump-
Whenever a vendee,
in
order
up an
out-
tract,
on the part of the vendee, and tinvendee re-purchases it, the priee
which he pays is no criterion whatever of the damage sustained."
281
that
title is
Thus
in
plaintiff,
in his action
on
was
sold
his administra-
by
plaintiff,
and
So
it
in
was
a re-
plaintiff,
of the
paramount
title,
covenant.
an
entry
warranty.
And
upon demand
the
grantee may
surrender the land to a
title,
Hamilton
and
re-
and
Chancery,
purchased
by the
his action
forfeited
the
premises from the claimant, to whose
superior title he had thus yielded the
He
possession.
purchase
Cutts,
v.
v.
plaintiff,
conveyance to the
and the premises were after-
24*
in pur-
this formality,
ant under
it,
he yields
where
is
to the claims
the substantial
282
final
difference?
as
much
in the other.
He
sessed, so
as
He
cerned.
but he
far
is
so
is
is
in fact dispos-
that
still
title
in
is
con-
possession,
under another
title,
ad-
one
and
his
purchase
is,
therefore,
he chooses
to yield
his
title
the
title
the
for
purchase of the
livered
the
opinion,
" of
who
de-
suit
title,
and before
final
judgment
the
loss
of both,
it is
highly
and proper that he should recover such indemnity under the cove-
why
just
is
concerned,
is
as
efl'e<
-tual
ing
he
title
is
may have
upon
when
283
brought, or the
suit is
title
Sprague
u.
Baker,
1 7
Mass. 590.
was
In
asserted in
by
fact a
have
been
it
sion,
his posses-
the
buys
claim of
title,
title
to
which he
he
and
in either case,
possible
But
he must rebut
all
implication of collusion.
matter of evidence, and
this is
when
it
established,
should,
and
as
we
and
all
expenses necessary
in the premises, which must extend
title,
and counsel
fees
Pitkins
pending,
v.
Leavitt,
13 Vermont, 379.
" A
summary of the cases upon
this point will be found in Rawle on
is
The
Dev.
&
cases in
so decided or so
:
Clapp
v.
so
in
regarded probably
it a breach of the
Hamp.
Brown
74;
v.
Dickerson, 12
The
of the
conclusion
which seems
the cases,
author,
be fully justified by
to
is,
when
will
that
title
will entitle
is
actually asserted,
such an eviction as
constitute
him
to
damages upon
his
law.
who
and
at
common
and
upon this
Vanmetre v.
(Ken.) 92 see
;
subject."
Griffith,
4 Dana,
he has acquired."
show
is to
and claim
to be considered as
der the possession acquired from him and use the newly
He cannot continue in possespurchased title in warfare.
and
sion,
set
up the new
title
But
this
tenant for
&c.,
life,
who have a
in
vantage by being
own
for his
benefit, but
hold
it
in trust.
This, however,
it is
believed,
title
arisen
damages is not^ in such cases of purchase, the considerationmoney and interest (which would open every door to fraud),
but simply the amount which has been paid to purchase the
paramount
1
title.
Morgan's Heirs
v.
Boone's Heirs,
2 Johns. Ch. 33
Zandt,
3
The
Barbour,
cided.
v.
in
common
Vanmetre
to 'both.
Dana,
w.
title
to
Van
Burhans
S. C.
purchase in an outstanding
with
v.
Griffith,
92,
covenant
of warranty,
con-
be
prove, on legal investigation, to
the better one.
Suit was brought
285
may also
held,
dor
liable
advantage of continuing in
side the
writ of possession the sheriff indorsed that he had delivered the pos-
difference
possession, may gain the
between the amount recoverable up-
and the
latter
who had
time, and judgment
died in the
mean
was confessed
amount of the
for the
For part of
judgment one
this
filed
his
title,
tions of fidelity
and
To
vigor.
made
to the title
place himself in hostility
under which he acquired and holds
possession
rived from his vendor, obtain an advantage at the expense and by the
The results thus
loss of the vendor."
deprecated are, as has been said, prevented, or, as in this case, cured, not
by denying a covenantee any remedy
ces,
upon
his covenant,
limiting his
damages
but by
strictly
to the
amount
classified
may be
with the
Kentucky is in harmony
more modern authorities
elsewhere. In that case, there was a
contract
title
under which
it
was originally
the law in
sideration
money
if
286
tion of
title,
and
all
If it be admitted," said
lost.
" that a covenant
Robertson, Ch. J.,
to be responsible if the land is lost,
be
is
sufficient to
cover
the covenantee
ral warranty,
is thereby
deprived
of even the temporary possession of
the whole or any part of the land
is
trial
fact that
after the
judgment, surrendered to
one of the
lessors
land of him."
In Johnson
and
this fact
declaration.
it is
and
in
to
an eviction.
v.
Kerr's Ad-
Nyce's Executor, 1 7
Ohio, 66, the declaration averred a
right of dower in the widow of a
warranty,
v.
prior
filed,
" and
such
to
in
default
judgments
by means whereof
paid and been liable
at law,
tin- plaiiitill'lias
sion,
the tenant
the
upon
paramount
may have an
covenant
of
action
warranty
On
the
this
to
covenant of
covenant is not broken
principles
claimant law.
of
the
Under
1>\
occupying
ministration of assets,
287
more
is
payment
to
and
relaxed,
it
been made, but the paramount right having been estabpaid for his improvements. And
the claimant should neglect to
til
if
make payment,
either
lose
the
The
tion."
Law
West.
Tuite
case of Tuite
Journal,
v.
Miller,
413,
v.
(not
was
In
and
profits of the
to
widow
the
for
unless
and
was
payment was
it,
it
according
third
of
seems
to
garded.
in
the
the
rents.
full
The
widow's favor
reported,
viz.,
of one
statute
local
be in
"
against
which was
the
to
of dower.
This, however,
a charge upon the
very
title.
Nyce
far.
p. 158.
v.
With
this
Obertz went
88
out
The answer
to this
is,
that,
under the
latter covenants,
The
if
asserted, to
it
is
sufficient that
But under the covenant of warranty, as usually expressed, it must not be supposed that a purchaser can, as
a general rule, buy in any paramount claim, and elect to
consider hifaself evicted to the extent of the
purchase-
money
However
of such claim.
structive eviction
is
when
actual, should be
The
effect
of
See supra,
and
infra,
Chapter XIII.
289
judgment
claim, but whether such claim has or has not been adversarily asserted.
made by
claim being
who,
it
was
held,
was
titled
The
Funk
v.
Cress-
McFarlane, 3 Penn.
"If a recovery in this case
Patton
419.
as
enjoyment,
it
livered the
" can be
opinion of the
Court,
it
each of these
five cov-
no
contained
warranty
of
seizin,
tions of the
either
covenant
title,
alike dis-
which would be a
novel idea to conveyancers and professional men.
Because I cannot
enants for
But
upon the covenant of general warranty," said Kennedy, J., who de-
modate
itself to
circumstances
connected
with
the
gave
rise
titles to
affect
and an
of
it,
proving
this,
an eviction.
It
25
comes
to
of general
first
Whether
it
to
McFarlane,
to
done
so,
290
a later case, the same Court held that " until an eviction
of the grantee or a demand made of the land from him by
in
right
all
the
some
Among
other, yet it
difference to Pat-
monwealth to proceed
So far, however, as
it."
ap-
to
pelled
day or
immediately, at
upon
the will
McFarlane,
it
Waldron
proved
Johns. 417,
v.
to collect
this
case
McCarty,
should be observed
it
since dis-
overruled
tinctly
(Brown
v.
in Pennsylvania,
Dickerson, 2 Jones, 372,)
case,
questioned, the
for possession."
The decision
in Caldwell v. Bower, 17 Missouri,
suit
568,
not,
York
Hunt
Amidon, 4
v.
Hill,
349
Pease, 10 Missouri,
was said, " The covenant de-
Shelton
482, it
clared on
the
to
title
liens,
is
v.
all
in-
is
to the
however,
same
It
effect.
necessary
to
was
deny
v. Baker,
which, on examination, will, it is
thought, be found to have been cor-
viz.,
land
1
&
Dickerson
v.
Voorhees,
Watts
291
by him
Dobbins
this case
S. C. 5 Paige, 620,
Partridge, 8 Durn. &
These cases
East, 308, are cited.
v. Lord, 19 Barbour's
"
(N. Y.) 18.
Upon principle,"
said Greene, J., who delivered the
" this seems a
opinion,
very clear
v.
Brown,
2 Jones, (12
See
79.
McCoy
S. C.
The
case.
purchased
plaintiffs
is
broken.
there
no pretence that
But
it
is
it
has been
supposed
that
in
the peculiar
circumstances of this case from which
is
something
And
4 Hill, 345,
it
in this action.
Hunt v. Amidon,
McCrea v. Purmort, 16
the cases of
Wendell, 460,
and Exall
v.
are
founded.
which
is
of the
all.
last
It
them
two
is
cases, unnecessary in
that none of
sufficient
afford
The
action.
quiet
any authority
plaintiffs'
enjoyment
has
for this
covenant for
never
been
there
They were
as they
and
ances,
a recent case
in
in
Maine,
it
deprive him of possession, when his remedy against the defendant might be fruitless."
So, where in Iowa there is a
'
it
But
provements.
for the
the
unsue
the
im-
covenant
mon
covenant
sistent
desired a
in
remedy adequate
to other
nants.
If "the com-
here referred to be
for quiet
consid-
is
But
if
the cove-
long in use, and the rights and remedies of parties under them have been
apprehended,
case itself was simply one of a mortgage given by the defendant to one
sufficient
answer
it
to this action,
precedent for
i
That
under
is no
say, that
the
and
it."
to
is
is
that free
from
purlet,
all in-
in
v.
the incumbrance.
Sire supra,
p. 222.
Cole
mon covenant
of warranty against
fall
1.
The
any
son mortgage and took an assignment of it, and it was lu-Id. in a suit
him.
recover
tin-
that
IK-
\\as enti-
amount paid by
which was a
lien
amount
his grantee
might
so paid, in an action
land
itself,
or of
But
ment.
that of the
incident to
its
enjoy-
a loss
2
18&5, a tract of land through which ran a stream
of water was conveyed to a purchaser with a covenant of
warranty, and the water having been, under paramount
icut, in
title,
it
was held
were
cited to
show
that, at
com-
real
and a right
to
it
was
in-
Funk
v.
25*
2 5
Connect. 497.
294
as his fields
is
the subject-matter. 3
Hence
in a recent case in
Pennsylvania,
amount
right, of the
plaintiff,
in
Co. Litt. 46, 48, 388, 389 ; Touch184; 2 Black. Comm. 18;
Bally
v.
v.
Ricroft, 1 Saunders,
322
"If
and make a
and warrant
and his heirs,
is
to say, to
in
Litt.
388
b.
the
stone,
Pomfret
So where
The
passage in the
"
Comm.
2 2
Black.
3 It
18.
in
Whee-
right of
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 sufficient that
it is
a distinction
is
Such
been questioned
in the note to
Spen-
itance or freehold,
coextensive
commons,
estovers
and
the
like,
Peters
\\ilh the
v.
grant.
ant and the grantor, by which the former was to be at liberty to remove the building whenever his term expired, it was
argument
"
What,"
that the
the absolute
veyed,
if
the act
said,
"
is
done
in
pursuance of a
constitute a
the strongest
is a more
thorough eviction than
removal or destruction of the property con-
was
it
was
superior to
title
grantor and his heirs, than the removal of the house by a title
derived from him, anterior to his deed to the plaintiff! 5J1
owner
v.
Brown, decided
in
Pennsyl-
in consideration
it
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
plaintiff's
by the
one
third
Commonwealth, occupying nearly
their surface,
the
whereupon
plaintiffs brought suit on the
covenant, and at the trial obtained, under the charge of the
lots,
authority of the
123
West
;
to the
v. Stewart, 7 Barr,
(Penn.)
there had been a prior decision
same
effect in
Kentucky, with
and
p. 53.
2 2
96
But
for about
the
most
at
thirdly,
Commonwealth was no
fall
The charge of
the Court as to
That
stitution.
right itself
may be
of
fact,
thus
far.
Was
the eviction
warranted
against
Certainly,
but not
by defendant ?
absolutely and
without qualification.
It is true, the
and one
right, ex-
tion
in
then
the citizen.
this
cannot be abridged by
The
right
or diminish
it is not
easy to
just compensation,
find in it even any other rights than
And
it
may
exercise
the right
it
be
and
statute.
is
This general
not broken
is
it.
warranted to
is
by
no
away
plaintiffs
if this right
it
is
this deed.
veyed 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
Upon
and
this
just,
297
could not pass a right of entry to the Commonwealth, inasmuch as that right was in her from the hegin-
release
nmg/
" In
" the
feudal
common covenants
of
title
namely,
a covenant of seizin, a covenant
that the grantor had a right to convey, a covenant for quiet enjoyment,
and a covenant for further assurance for the last of which Chancel;
lor
Kent
warranty,
which
substitutes the
covenant of
still
this action is
It
brought.
has
the rest
elements of
the
specific to secure
it
all
are too
grantee against
it
by
right
consequently a covenant
To mainagainst rightful eviction.
tain an action for a breach of it, as
and
is
it
may be
3 S.
W. &
&
seen in Clark
v.
McAnulty,
Witman, 3
R. 364, Paul v.
and in the cases
S. 407,
col-
involuntary
loss
" It would
of the possession.
be thought that
a covenant of warranty extends to
an entry by the authority of the
State, in the exercise of its eminent
scarce,
it
make a
it
An
make him
it.
all
the law
him
but
not so unreasonable as to
is
The entry
it.
imply
liable
for
of the public
warranty.
"
Nor was
it
an eviction even of
cer-
it
of
it
still
it
but
it
and
by superior
right.
He
298
But
it
may be observed of this decision, which was based
most
technical grounds, that although the Commonupon
wealth's right of eminent domain is an incidental
right par-
amount
to the
enjoyment of
all
yet that the land which may be taken by her in its exercise
is, as it were, represented or substituted to the owner by the
liability
when taken
Was
in connection
things' corporeal,
and
differed
from
pense in value.
fall
"
within the
It,
therefore, cannot
modern covenant,
that the release passed a right of entry to the State, as well as extin-
was subsequent to
and if there was
that was in the State from the boginning, and one that could be exer-
the conveyance
an eviction
at
all, it
sealing of the release, but by the entry of the State, which, we have seen,
was not a disseizin within the war-
ranty.
The
gle condition
owner.
The
of compensating the
the
release forestalled
The claim to compenno more than the beneof a chance, was an ideal thing
still
less so.
sation being
fit
as
it
it
could not,
299
The
The
New
quested to do
in
legislature
to
raise
money
to
release
damages
so.
to
have the
though
ascertained,
The
re-
plaintiff sub-
an injuncon 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
therein provided
and in order to
raise funds for the payment of such
the plaintiff was entitled to an injunction, and that the true construc-
as
were
and
and
tion,
tion of the
in default of payment.
damages were
personal and not real property, and
to sell
them
by purchase or
canal through
it.
No damages were
should
the commissioners
thereafter assess
upon the
farm from time to time should be deducted therefrom, and the balance of
said
Brown,
opinion,
J.,
" that
who
delivered the
the
therefore did not pass to the plainby force of the deeds of convey-
tiff'
fore
the execution
of
the
deeds.
to
300
both in
fallen
its
did extend to
and not
lay in grant
in
livery,
canal, were
lie
extended to many
would not formerly
before
Coke
riod.
Until the
title
was thus
ac-
The agreement
thing granted.
exempt the lands from taxation to
.
to
ages, would,
under
seal,
Barn.
&
Vyvyan
Cress.
v.
Arthur,
410; Vernon
v.
purpose and to
must be regarded as
having passed to the plaintiff under
that extent
it
the deed."
1 Thus it will be found in the Year
Hook 43 Ed. III. 25, and
Hni.
!'
will
its
disuse,
things which
it
to embrace.
Thus
" a warrantie does not exsays
Rudge, Hobart,
3,
shows that in
the
Lukens
v. Nicholson, decided in
January, 1860, in the District Court
conveyance
in
fee,
whose
estate
is
301
under a
levari facias.
It is
undoubt-
when
present case,
"
title
was good
originally granted.
we
to the
iff's
when
as
possible,
fendant, which
is,
in other respects,
And
it is
of an incorporeal hereditament. An
attornment by the tenant of the land,
to the purchaser, might perhaps have
perfect
Rawle on Covenants
for
The law
262, 266, (2d ed.)
so held in Curtis v. Deering, 12
Title,
was
Maine, 449, and the entry of a grantee under a deed duly recorded,
held to be a breach of a warranty
contained
in
prior
Peters
v.
unrecorded
Gubb,
26
right to possess,
it the only
possession which can exist in the case
not
ranty.
9 Harris,
(21
But
Penn. State
K)
455.
302
wealth, that if
rent issued
ant,
when
it
apsale
that
any
suit
was necessarily
sue
as
we
entitled
to
new trial."
The case of Kinney v. McCullough,
which
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
against the defendant for pay-
bill
lost.
His
it
were subject
the sale to his late partner, the benefit of which had passed to the com-
"
plainant but the Court said, This
would have been the case unquestionably, if Phillipon's mortgage had
which the deed contained. The purchaser then executed another mortgage
eloM-d
who
to the complainant,
it,
and
>loiv- himself.
at the sale
The
lien
fore-
bought the
by.
of the prior
red.
sold again
But no such
turned
lie ha-
303
state of
leased, with a
to the
lessees
any defect of
title
Soon
Common-
liable
mortgage.
This
is
not
v.
Brown,
ment of
these
to Halsey."
support of this point, however,
and
in the
In
conveyance
the
if,
would seem
it-
to follow that if a
sale
ever,
series of
strict rule
application of the
referred to would prevent
so obvious a course of decision.
304
had released
all
existing
Common-
as to this,
No man
ruptions.
is
presumed
to
the
him
The
him.
entirely
be settled
exclude
to
right
to
hend
difficulty
works,
No man
Have
is
presumed
to
contract
it
is
they done so
We
it.
consider
be
claiming damages, which it is to
presumed the public will accord and
appear
to
puted
right,
had entered
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
pay.
If,
The
strong and broad terms.
tenant would have to seek his re-
in
i.iwn off
to
when required
nal,
that,
to
made
enough
we
instruct
sustained
tion."
daman's
305
Brown
ruled the case in their favor, but that the works of the
Com-
monwealth
it
was intended by
the
Com-
monwealth. 1
be perceived that this decision was based upon the
construction to be given to the covenant under the peculiar
It will
is
no
And
but for the fact of the release having been executed by the
vendor in Dobbins v. Brown, the decision in that case could
not have been considered as open to objection.
In reviewing the numerous cases upon the
subject of what
constitutes an eviction within the covenant of
warranty, it
all,
or even in
most
cases, by the artificial and technical rules which propReference may be had,
erly govern the law of real estate.
therefore, not only to the intention of the parties as expressed in the conveyance which contains the covenants,
i
" in
submitting to the jury the
question of the intent of the parties,
Court,
no just cause
of
complaint,
of
this
Court,
as,
in
the
the
intent
26*
opinion
might
have
been inferred
as
matter
of
law."
2
306
would be strong
So far, however, from such being the pracof conveyancing in this country, it is rarely, if ever, the
case that the covenants for title which are inserted, are exconstruction.
tice
covenants for
except that of warranty, which, by common practice at least, is looked upon as containing all that
1
is
necessary to assure the title to the purchaser.
Such
title,
is
The title is, in a case of any importance, submitted with an abstract, or at least a brief, for the opinion of
Since equity jurisdiction
counsel, and carefully examined.
prevails.
law as
its
Courts, the
rately defined,
with
Yet,
all
approved by Stockton,
in^
(lie
J., in deliver-
recent case of
Funk
v.
Cresswell, 5
title
believed to be true of
many
other States.
807
The same is
Where such has
suggested, with
different
great deference, that technical rules, based upon a
as
these
custom of conveyancing
covenants, lose to
respects
some extent their application, and to say that " the purchaser should have protected himself by other covenants,"
become the
it is
apply a hard rule in States where those other coveNor do such decisions reform
nants are never employed.
is to
It
the practice, and bring into use those other covenants.
it is the course of decision,
that
eventually
generally happens
mean time
the
is
in
unenviable.
harm.
It
can seldom
in
last
long.
The former
generally
is
habitually the only covenant for title contained in conveyances, such a construction should be given to that covenant
as will rather tend to indemnify the purchaser than to pro1
tect the vendor.
i
This
may be done
without giv-
But
title,
as
quent thereupon,
it
any
loss conse-
seems hard to
may
not,
upon
308
The
is to
be so
in
is
veyed.
As
proved."
question then arises whether, in the pleadings, the declaclaim, quiet his title, and then be
indemnified to the extent of the
amount
reasonably and
bond fide
will
strict rule,
profess to lay
and
down
to
amount bonafide,
reasonably and necessarily paid by
branch of this subject of evic-a him to buy in the paramount title,
even where the only covenants are
tion is that of the purchaser's right
those for quiet enjoyment or of warto detain the unpaid purchase-money
by reason of a defect of
title.
Such
ranty.
See Chapter X.
Thus an assignment of the breach
" that the defendant had not warranted and defended the premises,"
without more, is bad on general
l
demurrer; Sedgwick
r.
Hollenbark,
purchaser would be, at that time, entitled to damages upon the covenants,
This subject is attempted to be fully
Cooper
this
it
Johns. 376.
turn,
an
Y.) 205.
est
the
fac-
eviction
v.
When, however,
309
be averred.
Thus,
in
an early case,
It
warranty assigned, without alleging an actual eviction.
is true that evidence of a
paramount title, and that the war-
up the possession,
will sup-
alleged
although it
cumstances
cases,
be supported by the proof of particular cirbut it will not do to state the circumstances
may
;
the averment
better
and
averment of an eviction
another."
title,
in a later case
is
it
the King's Bench, however, the plaintiff, in suing upon a covenant in a lease that
he " should and might have, occupy and enjoy the said
in
demised premises from the said sixth day of April for and
" had not been
during the term aforesaid," averred that he
able to, and could not have,
occupy
1 Clark v.
McAnulty, 3 Serg. &
Rawle, 372.
2 In Patton v.
McFarlane, 3 Penn.
R. 419.
3 Paul v.
Witman, 3 Watts &
Serg. 410.
diana,
it
thins
to
be averred
amount
is
the
title
310
in this, to
wit, that he, the said plaintiff, being so possessed of the said
demised premises, the said defendant afterwards, to wit,
&c., entered into the said demised premises and upon the
possession of him the said plaintiff thereof, and expelled and
said plaintiff
thereof,
left
finally
it
it
and a ver-
new
trial
dered.
Hawks
Den man,
v.
"
Ellis, 367.
Orton, 5
The
" here
Adolph.
plaintiff," said
&
Lord
declares in cove-
session,
This
him.
is
a perfectly intelligible
his
way
the
liad
if
the plaintiff
Then;
as stated. -It
in
is
in put lag
did so
I
He
The
to ask for
a new
2 Patton
425.
v.
plaintiff;
for the <le-
plaintiff has
no
right
trial."
McFarlane, 3 Ponn.
311
ment
in
may
that
ment of
notice,
that a dispensation of
intended to be relied
according
o to the
on,
facts.
The
analogy, therefore, cannot be said to be entirely sustained, and there have been several cases on this side of the
Atlantic which have recognized as correct, an assignment of
the breach of the covenant of warranty by an averment that
3
it was caused
by a failure to obtain possession.
3 Jn
Stewart
121
Eden,
Caines, (N. Y.)
Williams v. Matthew, 3 Cowen,
v.
'2
v.
v.
Varrell, 3 Green-
leaf,
Day
Burgh
&
v.
Grant, 6
v.
Court
said,
it
is
undoubtedly necessary to allege substantially an eviction by title paramount, but we do not think that any
fo/mal
words are
prescribed with
312
Upon
which
for a breach
damages
by a
therein mentioned,
this allegation is to
It is
defendant."
"
we
tion,
and conveyed
to
bargained, sold
S. a certain
one J.
nances, to
his heirs
and
and in
S.,
;
among
said defendant,
other things, covenanted with
and
and
that the averments here are equivalent to an actual ouster," and this
the said J.
In Grannis
Y.)
36,
laid,
cause
it
" be-
particulars of the
see supra, p. 183).
adversary
title
The
5 Wentworth's Pleading,
following form of a decla-
ration
on a covenant of warranty
given
by
Professor
is
Greenleaf (1
by
executed,
his heirs
as-
defend the
his heirs
And
persons.
same
became lawfully
and being so
;
on the
by
day of
by him duly executed, ac"
(it is,
knowledged and recorded
wit,
his deed,
be found
S.,
warrant and
to
signs,
Chapter VIII.)
infra,
"and now
therein
consideration
said premises to
and
ises,
and became
thereof accordingly.
lawfully seized
But the plain-
313
1
of the covenants for quiet enjoyment and of warranty, there
in the different
is a
great conflict of authority and practice
In
States.
many
w arrant
i<t
flu/rice or
upon w hich,
in an action of
was computed
as at the
mod-
But
in other States, they are regarded as covenants of indemnification, whose object, therefore, is to compensate the party
law
necessary to repeat what was the commonthe obligation of warranty was implied
When
rule.
to
tiff
Of
the breach
first
by
his said
to do, but,
the
to supra,
p.
drawn
rately
there
is
As
tory
and
still
plaintiff,
is
between
these covenants, nor does it seem
that any has ever been taken.
2
and
3 Za-
27, 1847.
Denman,
no difference
v.
In Georgia,
(N. J.) 260.
a statutory form, the decla-
declaration
found in Carter
briskie,
Another elabowill be
242.
in principle
supra, p. 59.
3
Gilbert's
supra, p. 59.
Tenures,
124.
See
314<
no change
in this rule.
now
in use
worked
In this country, however, the rapid advance of improvement and the comparative insecurity of titles gave the
at an early day, and it will be found
question importance
discussed among the very first of our reported cases.
In some States, it was held that the damages should be
the
The
common
its
The
The
earliest authority
appears to be Horsford
v.
numer-
Wright,
land better
till
he
is
evicted,"
1 It would
appear from the case of
Lewis v. Campbell, 8 Taunton, 728,
which was an action brought upon
a covenant for quiet enjoyment,
that no cases in point had been decided, since none were cited by the
" I
counsel, and Dallas, Ch. J., said
much
doubt
whether
in
very
any
:
in
cient."
2
315
"
was afterwards
this rule,
So
in
at
an early day."
In Maine, "the same principles are established."
Gore
endeavored to found the practice upon English authorthat however convenient and proper the feudal
ity, saying,
rule might have been, yet "when lands were aliened for
J.,
came expedient
that another
remedy
And
it
it is
be-
on
paramount, might maintain a personal action of covenant broken on a real covenant of war-
by a
fully ousted
title
5
The authorities, however, cited in support of
ranty."
6
these remarks, give no different rule of damages from that
The decision in
which existed before at the common law.
" conformable to
Massachusetts, was, however, said to be
to personal covenants broken, to
principles of law applied
the ancient usages of the State, and the decision of our
7
predecessors supported by the practice of the legislature,"
and its authority has been consistently followed in that
State.
1
Peet,
t?.
Sterling
14
Connect.
245.
Drury
Slmmway, D. Chipman's Rep. Ill; Park v. Bates, 12
Vermont, 887.
3 Cushman v.
Blanchard, 2 Green1
v.
leaf,
268
Hardy
4 3
Swett
v.
v.
Patrick, 12 Maine,
Id. 525.
Nelson, 27
Mass. 523.
Some
212.
2 Id. 164.
be found reported.
Caswell v. Wendell, 4 Mass. 108 ;
Bigelow v. Jones, Id. 512 (and, not-
to
316
civil
law
is
of course
adopted.
8 Id. 221, by) Norton
2 Metcalf, 516, White
3 Id. 89.
In Sumner
action was
the
on
v.
Babcock,
v.
Whitney,
Williams
v.
the covenants
of right to convey,
seizin,
against incumbrances, and of warThe Court refused to assess
ranty.
for
by the
plaintiffs,
upon
"
;
though,
"
after, it is said,
of the original sale, would be to reand carry into effect the entire
store
of 1808, which
But
to suppress and repeal.
the Court never had a doubt that
tended
and above
it
mean
to in the
ed
that rule,
damages on a warranty.
This is an error into which many
members of the bar have fallen, and
it arises from some inaccuracies in
lar
In doing so, it
assumed that no part of that increase
could be taken into consideration, in
assessing
al.,
9 Louis.
Rep. 552.
The Court
for
profits not
to
in-
Toullier on Obligations.
" The
who
jurisconsults
prepared
dation,
317
much
more numerous.
the parties 'could have in contemplation at the time of the contract, ought
Duinoulin, de
eo quod, interest, No. 57, and folPothier on Obligations, No.
lowing.
or transient causes.
104
lier
lect of the
is still
bound
to the res-
ART. 2484.
If,
however,
the
thing sold was impaired by the buyer, and he has reaped some benefit
therefrom, the seller has a right to
retain on the price the amount to
ART. 2485.
The
seller is
to reimburse, or cause to
bound
be reim-
ART. 2481.
Even in case of stipulation of no warranty, the seller, in
ingly
was aware
risk.
When
ART. 2482.
and pur-
ART.
2486.
If the seller
know-
sold the
be obliged
all
there
is
promise of
warranty or when no
was made on that subject,
stipulation
ises.
if
1.
The
2.
That of the
when he is
the owner who
3.
of revenues,
obliged to return them to
fruits
evicts
him
by the
suit of
when he
ART. 2483.
When,
at the time
27*
ART. 2488.
Not only eviction
from part of the thing sold, but eviction from that which proceeds from
included in the warranty. Such
would be the eviction from the child
it, is
mother.
ART. 2489.
But
if
the
thing
sold
318
Some
first unsettled.
early cases adopted the rule which has just been referred
1
to, but this was soon after departed from, and the meas-
law or
at
suit
reimbursement or damages
in equity for a
part
ART. 2490.
If in case of evic-
ted part
is
to
be reimbursed
to
buyer according
its
to the
estimate, pro-
book
1,
1, tit. 2,
Dom.
Cushing's
For the
233.
Law
13.
mak-
that he shall
have
ing up to him
sale."
all
defect of the
right, and not simply for his indemnification by the disponor's return-
ing the price to him," &c. Also Dic" Wartionary of Scotch Law, tit.
randice."
See passim, Sedgwick on
The
in
its
endeavor
lib.
tius
45
videbatur;
"
tit. 1,
si
impensam
doli
aedificiorum
solvat,
exceptione summovere,
magis est ut ea res ad periculuin
rriali
ut
dominus mercedes
prajstare
debeat.
et
Quod
imjirn-as
si
emptor
Liber
Car.)
265
19
v.
;
Parsons,
Guerard
v.
Bay, (S.
Rivers, Id.
v.
Ander-
Nott
& McCord,
189
as also llon-
Brevard, 458
Wallace v. Talbot, 1 McCord, 468
Ware v. Weathnall, 2 Id. 413 Earle
ning
v.
Withers,
v.
Cheves's Rep.
Mtddleton,
and Pierson
v.
Davis,
I\K
127
37.
3
Stat. 17th
Mullm,
December, 1824,
1.
ji
319
sluill
was
New
So, in
to the
same
New
as those in
departed from.
In Stout
now
settled.
The
Earle
v.
New
10
Hampshire,
127.
a
Hulse
White, Coxe's
v.
Rep.
Stewart
v.
Drake, 4 Halsted,
Sinnickson, 2 Green,
Holmes
v.
313
Morris
v.
304
Rowan, 2 Harrison,
and see supra, p. 103.
Mills
Nelson
v.
Matthews, 2 Hen.
&
Munf. 164.
6
Randolph, 132;
Coalter, J.,
dissented,
7
2 Leigh, 463.
v.
Thompson, 4 Humph-
Shaw
v.
Wilkins, 8 Id.
In Loomis
o.
Bedel, UN.
Hamp.
was considered to be as
yet unsettled, and in Wilson r. Cochran, 14 Id. 399, the Court said, "We
are not aware of any decision which
matter authoritatively in
But in the more recent
case of Willson v. Willson, 5 Foster,
this State."
236, the subject was carefully conand the damages fixed by the
sidercd,
See
also
Jackson
May
New
consideration-money.
v.
11
settles the
101
York,
647.
1
1 73.
142
9 Elliot v.
ries,
New
Wrights,
Overton, 385.
50
Bennett
Kelly
v.
v.
Jenkins, 13 Johns.
of
Kiimey
v.
320
Ohio,
Virginia,
Jersey, Pennsylvania,
v.
McKeon, 4 Denio,
550.
New York
stat-
North Carolina, 3
former statutes on
There were
which
this subject
this supplied.
If improvements are
to be paid for at all, it certainly seems
Dickerson, 2 Jones,
that the
adopted.
1
372
441
Brown
v.
claimants, being in
title
quiet possession of lands under
from some public office, or deed duly
that occupying
a tax
title,
shall set
and better
title,
until the
occupying
statute,
inconvenience in
Tomlinson
Bright
v.
v.
its
application.
Boyd,
See
378;
Story, 478,494;
Smith,
Finch,
779 b,
799 a,
2 Story's Eq. Jur.
1237 to 1239 Green v. Biddle, 8
Wheaton, 77 Patrick v. Marshalls, 2
;
v.
Id. 26
Putnam
u.
Green
v.
Winter,
Ritchie, 6 Paige,
these authorities
to
pos.
all
lasting
provements,
by the suc-
Statutes of Ohio,
if (liMiiuiidcd
cessful claimant.
United States. 8
Some
have seen,
Union
it
is
We
in the conveyance.
may
if this
166
28
costs, the
Davis
where
an elaborate opinion by
In Martin v. Atkinson,
Nesbit, J.
7
the
contract was execuGeorgia,
" bond
tory as to one of the lots, a
"
for titles
only having been given.
Tin-re were also express representations made by the vendor that he
would pay for improvements.
2
is
Stnxle's Heirs
Bibb, 279
Hanson
v.
Booker
Stewart
v.
v.
Swafford
v.
Young
Blossom
Desire, 23 Missouri,
Id. 437.
Matthew,
Noble,
v.
G. Greene,
Whipple,
3
Knox,
v.
3 Id. 263.
Chandler,
295.
v.
Dickson
v.
v.
Cox's Heirs, 2
Bell, 3 Id. 175
Buckner's
Executor, 4
8
Hopkins v. Lee, 6 Wheaton, 118.
There are many other authorities
cited
269,
in
Greenleaf's Evidence,
Kent's
Commentaries, 471,
but
as
many of
450.
cited in Davis
Logan
v.
Moulder,
Pike, 323.
damages.
Some
v.
of the authorities
322
to be estimated
damages are
by the value of
;^
broken as soon as
enjoyment or of warranty
is
made
The
that
it is
hence,
is
it
this
should be an unsatis-
of such an enlarged
by reason of
his purchaser's
the other hand, the latter takes the
liability
improvements ; and, on
title for what it is worth
he makes, by his
contract, the purchase-money the measure of the value of
the title, and takes security by means of covenants, in that
at the time;
If then
we
the decisions call the equitable view of the case, the anomIt is hard,
aly seems striking.
they say, that a purchaser,
acting in good faith, should lose the valuable improvements
good
faith,
the
same
fide.
Here are
three
the honest
is his, sells it to
improves it
real owner,
immediately on discoversues for and recovers his estate.
Ho\v shall
conviction,
title,
is
bond
an estate
perhaps tenfold.
ing his
affords
it
This
The
Kinney
v.
it
owner
real
retain
who
will
therehy he
in before,
and
letting the
to the purchaser,
323
It is difficult to perceive
improved
the equity
from one
who, acting
good faith, has put improvements upon it,
that aid shall be given to him only upon the terms that he
in
to
There
another light
is
which
in
this
matter
first
may be
The
viewed.
by Woodward,
J.,
opinion of the
recent case in Pennsylvania of Hert-
zog
r.
The
(N.
II.) 230,
ments made
He
owner alone
tion.
mendation of dividing the loss between the buyer and the seller; for
the seller loses the consideration, and
the buyer loses the value of the mi-
provements."
2
&c.
seller
The other
rights.
profits
for a time to
on the covenant
seller
Story's
;
Eq. Jurisp.
Sugden on Vendors,
Davis
u.
799, 1237,
c. 22, sects,
in
and
real estate
permanent character may sometimes be more than counterbalanced by depreciation from other causes
or, what is a
;
much
may have
lessness
tive wilderness.
own
neglect or care-
He can
covenant for seizin and one for quiet enjoyment.
2
sue upon either, or he is allowed, it is said, if he sue upon
If the propboth, to have judgment entered upon either.
erty is less valuable than when lie purchased it, he elects to
enter judgment upon the covenant for seizin and receives
erty
is
judgment
is
is far
more than
the prop-
then worth.
If,
of warranty.
The
impossibility of adapting laws to suit all emergenhas been lamented by jurists of every age and country,
and it is obvious that the common-law rule as to the measure
cies
conflicting
"
felt
to
and as
On
veyance of land, the standard for the computation of damages (whatever that standard may be), ought, at least, to be
1
"
By the
When
acts or unfore-
by any providential
Supra,
Sterling?-. IV.-t,
p. 817.
1
t'oum-rt. 245.
325
and notorious.
The
seller
mod-
or by a court of
by circumstances in a court of law,
If the vendor has made use of fraud or concealequity.
ified
may
in the
all
he has
lost.
And
if
the real
owner
would
mesne
it is
If there
is
any
class of cases in
it
which an allowance
for
improvement
mean-
ing of the parties and one of the inducements to the contract, it would seem that if the land thus improved were
subsequently lost by reason of a defect of
1
Pitcher
v.
Livingston, 4
Johns.
21.
2
Lee v. Dean, 3
Supra, p. 64
Wharton, 316.
3 Green v.
Biddle, 8 Wheaton, 77
Lord Cawdor v. Lewis, 1 Young &
;
28
title
or incum-
As
is
the case in
v.
Boyd,
many
parts
326
defect or incumbrance
were not
was
own
act.
somewhat analogous
rule of
damages upon
this is
between
a rise in value owing to improvements made by the purchaser, and an increase from other and adventitious circumstances.
3
common
By
dower
yet
1
The
shall
be as
it
was
not bound to warrant except according to the value as it was at the time
of the feoffment, and so the wife would
recover more against the feoffee than
he could recover
not
reasonable."
in value,
The
which
cases
is
cited
1.
from the Year Books appear to sustain this distinction, though not for
Livingston, 4 Johns.
v.
3 Co. Litt.
4
husband." 4
32
a.
(cited Fitz.
31 Ed.
288)
I.
for
(cited Fitz.
which
this
Ab. Voucher,
reason
is
quoted
fromthe Hale MSS.: "For the heir is
;
three acres of land with the appurtenances in E., as her dower, against
is
taken in
3*7
many
and though
of the
none of
States as regards the purchaser ;
is the wife allowed to receive any advantage hy reason of
yet there are many cases which give
in
them
improvements,
And,
therefore, she
had her
Dower,
judgment
if
he ought
to
warrant the
;
gift
he
judgment if of such
he ought to be warranted and the
built the mill
Herle
the writ.
Hingham
You
ought to
It
is
fol-
estate in a
his
it
might be
for
her dower,
difficult for
the
328
the
that such of
them
as limited
its
aliena-
tion
were
in the
In our
own
all
improvements made
all the authorities which bear
upon
my-
what appears to me to
of the case, which is, that the
3
has been noticed.
The Bank
of the United
Dunseth
Ohio, 76. In
the cases of Dorchester
Shirtz
3
Judge Story,
in
it
Thompson
also
fully
t>.
v.
States, 6
New
York,
v.
Coventry,
11 Johns. 510, and Shaw v. "White,
13 Id. 179, were decided before
Thompson v. Morrow, and Chancel-
lor
"
The
better and
Commenmore
rea-
in the
329
remarks,
widow
the
conclusion, I
am
not to inquire.
It
is
my
sufficient for
was given,
it
should be ob-
as has
been above
Morrow was
decided.
Thompson
In Virginia,
shall
common law
that
of
its
alienation,
its
the dowress to be
however,
whether there
it
tion,
is
may be doubted
any
conflict of au-
itself.
Each
cites the
of opinion seems to be as to
Judge Story,
in
Powell
v.
its
source.
The Man-
case of Hale
v. James, decided
by
Chancellor Kent, and says, " That
learned Judge went there again elab-
seems
to rest
on ground similar
to that
consideration
purchase-money
Stout
v.
with
interest,
in
v.
exists,
28*
since,
he
is
and not
its
correctness) that the
" With
difference of opinion exists.
rule,
the
in the
common
330
Thompson
v.
Morrow, which
is
is
favored both by
Books
all
to turn
"
accordingly feels
himself at liberty to decide according to what
appears to
him the reason and the justice of the case." But although
we may approve the feeling which led to a new distinction
upon improvements,
widow
is
hardship to a purchaser
It might be
country has raised the estate he has lost.
that
the
is
rule
a
urged
although
just one which refuses to
In defence of him-
common
law,
it is
de-
and the
tainly are in
self,
to
be
seem
to be denied," &c.
There is
then no conflict of authority as to the
ties
cited, it
331
be applied, and
as in most instances the value of real estate consists in its
in other cases of contract should, if possible,
as nearly as possible, be
individuality, a purchaser should,
the
placed in such a position as to enable him to go into
his loss.
in
to be excluded
would be often
difficult to distinguish
upon covenants
for title
Chapters
III.
Within
and V.
in
brances.
72,
134
et seq.
&c.
CHAPTER
333
ETC,
VIII.
former
incumbrances.
The common-law
attended with
many
common-law
niceties of distinction
which
it
rule,
would
title.
1 This is
not, however, the exact
form in which the proposition should
be stated, as all the covenants for
title run with the land until breach,
a middle position.
or constructive.
That
to Spencer's case in
edition
further
and,
for
to
the
American
834<
common-law
estate.
When
was such
was very
benefit
and covenantee
by direct operation
of assignment, but as an incident to the land to which the
covenant was annexed.
When
the statute of quid emptores abolished subinfeudation, privity of tenure and estate no longer existed upon
it
to
enanted to pay, here, though the covenant was to be performed out of the land, yet the assignee of the covenantor
somewhat
freely
commented on
in
But on
2,
chap.
14.
British
the
liability.
of
its
to
forced,
if
the covenant
was held
it
335
to be incident to
even
it
if
to henefit
made by a
1
stranger, and, therefore, whoever might become the owner
of the land would also become entitled to the benefit of the
covenant.
It is
upon this principle, that both the ancient warranty
and the more modern covenants for title, intended for the
assignee
that
to say, the
is
it
to the
being is entitled to the benefit of all the warranties and covenants which the prior owners in the chain of title may
have given.
there
is
Until the
common law, out of every conveyance into which no contrary stipulation was introduced.
In Pennsylvania, before it was decisively announced from the bench, in the case
at
of Ingersoll
v.
Sergeant, 1 Wharton,
337, that this statute never was in
State,
before
found
to
St reaper
155
though
that
them on
v.
Scott
been
authority
made
;
see
Rawle, (Pa.)
Lunt's Admrs, 7 Peters,
Fisher,
v.
had,
attempts
decision,
605.
1
Such
at least
is
the conclusion of
Commis-
3d Rep. p. 52
and such
appears to be the view taken by Mr.
Hare. Lord St. Leonards, however,
sioners,
this
important difference
ed.)
Brewster
v.
Kitchell, 1
Lord Raym.
Owen,
2 Blackford,
317; Taylor
(Ind.) 301.
v.
Coke, 1C, where a Prior and Convent having covenanted with the
owner of a manor, on which stood a
chapel, that they would sing weekly
in this chapel for the benefit of the
In
this
case
nor con-
336
and
its
benefit descended
stance, whether
it
upon the heir in every inhad or had not been broken in the life-
never
could
It
succeed.
although until
to the heir
passed
yet if a breach had occurred in the lifetime of the testhen became choses in action, incapable of transmission or descent, and whose right survived to the executor
tect,
tator, they
alone.
Nor
is
Eng-
covenant
is,
moment
Touchstone, 175.
53,
Com.
418
Covenant, B. 1;
Wentworth's Office of Exec. 160;
Lucy
v.
v.
Dig.
Levington, 2 Levinz, 26
S.
Polhill, 2 Ventris, 56
Smith
64
Comberbach,
Simonds,
v.
Ray-
mond
v.
Eicketts
v.
12
Weaver,
Com. Bench,
810.
v.
Mees.
Raincock,
The much
&
7
con-
troverted cases of
tie,
the
Morley
of their creation
and King
v.
Jones, 5 Taunton,
Jones
would seem
that
v.
modern covenants
did not happen in the testator's lifeThis was going too tar, :md
time.
v.
Raincock,
337
time, and
it is
mere right
of action, which
is
subsequent purchaser.
seizin,
between the
is
England
that
different covenants.
no such
That
for
covenant to do a thing
tion
to ties
of the covenant,
(when
its
words are
in the
present
who
title to
when
tle,
first
Kingdon
Selw. 355
v.
Nottle,
S. C.
Id.
29
Maule &
53; King
v.
Jones,
v.
338
other
as arose
good
title
that
that
breach was not shown to have been a damage to the testathat it was not alleged that the estate was thereby
tor
prejudiced during the lifetime of the testator, and if after
his decease any damage occurred, that would be a matter
the
On
and
its
sale prevented.
made and
but
it
was
title
to
there
The
case of
King
v.
tion
damage was
who was
Kingdon
Selw. 53.
v.
Nottle, 4
Maule &
25
3
Taunton, 418.
See supra, p. 199.
339
damage was
the
ultimate
the executor
does in
this
Bench.
On
State of Indiana
is
the
only one in which the doctrine held in these cases has been
fully recognized
in
es-
M'Coy
188.
between
decision
their actual
and
The
more
place, until
breach, the covenants for title run
first
other words,
enant in
it is
not so
prcesenti, as
indemnity.
much
a cov-
a covenant of
The American
Backus's Admin-
is
author-
ities
first
of these
g ee
43
Ohio, 216.
340
pleadings did not perhaps strictly call for the doctrine there
laid down,
yet it has since been adhered to and become the
title,
he
is
the
itself,
as well as in accord-
By
either a
considering the
covenant of seizin as a real covenant, attendant upon the
inheritance, it will form a part of every grantee's security,
dead
letter
means of
or a
title,
to bring suit.
means of injustice, when after the covenantee has sold and conveyed without covenants, he brings
and sustains an action on the ground that the covenant was
it
was entered
into,
and could
not,
enant of warranty, passing with the land, so long as the purchaser and the successive grantees under him remain in the
undisturbed possession and enjoyment of the land."
The
doctrine thus held, though
in the arguassailed
strenuously
ment of a subsequent case, 2 was nevertheless there adopted
1
Soe supra,
p. 22, note.
Foote
v.
Devore
v.
Sunderland,
1 7
Ohio,
crued
to himself
60.
States
be
it is
always a present covenant, which if ever broken, must be
broken as soon as made, and upon
tered into.
then seem
is
en-
The
damage
is
sustained? It would
those
lost
title.
in his rights,
This construction
will best
islature
we
think
mark here
and recover
motion
in his
eviction
session without
nal damages
and
it
wards
to allow
title,
him
and yet
after-
to recover, not
on
29*
by a
title
own
right after
an
paramount. When,
therefore, a defeasible
title,
or the pos-
has passed
shall consider the
any
title,
running
O with the land until the damage is sustained, enures to the benefit
of the party on whom the loss falls.
The general doctrine of the old law
as to the real warranty, that when no
estate passes to
31-2
The weight
of American authority is, nevertheless, unof the position, that the covenant for
favor
doubtedly
seizin being broken, if at all, at the instant of its creation,
is
thereby turned into a mere right of action, incapable of
assignment, and, consequently, of being exercised by any
in
vests in the
loss falls."
it
admitting
to
be applicable to the
228
by the Amer-
383
claim of
title
v. Smith,
23 Missouri, 179, it was said, "If
there be a total defect of title, de-
and indefeasible, and the possession have not gone along with the
deed, the covenant is broken as soon
as it is entered into, and cannot pass
to an assignee upon any subsequent
fe"asible
breach
is
final
obviated
is
and complete
the
Hacker
Heath
ardson
Potter v.
Dorr, 5 Id. 9
Taylor, 6 Id. 676; Pierce v. Johnson, 4 Id. 253; Mitchell v. Warner, 5 Connect. 497; Davis v. Ly-
man,
v.
6 Id. 249
627
Id.
an estate
Bickford
Prescott
Wheelock
Page, 2
v.
v.
Trueman, 4
v.
Thayer, 16
3 Metcalf, 390
2 Johnson, 1
Id. 72
Greenby
v.
Hamilton
v.
Townsend
McCarty
if
Mass. 455
Whidden, 24 Maine,
v.
worth, 21
all,
v.
Wilcocks,
Wilson, 4
Morris, 6 Cohen,
Beddoe's Exr.
v.
34 Blydenburgh
;
Lot
1 Duer,
Thomas, 1 Pen407
Chapman v.
v.
Cotheal,
v.
rison
Wilson
paramount
title results
in
some dam-
v.
Sandford,
Id.
261
Gar-
Carter
Denman,
v.
120;
v.
v.
Wads-
the
Storer, 8 Greenleaf,
v.
whom
party upon
6 Id.
J)
34-3
Ross
v.
Turner, 2
the grantor
is
was the
English,
ell
v.
Warner,
especially,
Kingdon
mer, Ch.
J.,
v.
"I am compelled
sent in omnibus.
to dis-
y. Nottle
may justly be said to Authorize the assignment of a chose in
action by devise ; a supposition as
unfounded as
it is
novel.
I therefore
don
is an
ingenious sugno substantial import.
subsequent time,
v.
when
seizin
gestion, but of
is
a contin-
it toas broken.
It remains, as it
was, a breach to the same person who
first had a cause of action
upon it.
be anything more,
continuing breach, but a
If
it
ence.
that
it
is
not a
new
exist-
it
is
core,
has no
and cannot be
and partly sound but
futurition,
partly broken
principles
surrounding
seizin or against
incumbrances
to
an
veyed
that
it
was free of
all
incumbrances
conveyance, the
same estate being then under mortgage or other incumbrance, or the
grantor not being thus Seized of the
same, the assignee of such grantee,
his executors or administrators, after
344
it
being often
title
of the mort-
may
main-
such an intention
whole
out the
is
section.
tain
against the
if
gages.
to release the
first
covenants.
"
17.
When
cumbrances.
in-
incumbrance at the time of the conveyance, and such grantee shall afterwards convey the said premises to a
for
first
It is
is
a breach
of the covenant
422
Allen
v. Little,
36 Id. 175.
choses
assignability of
Redwine
language
necessary to perfect
of
incum-
legis-
apply in
islature
is
v.
Brown, 10
See supra,
p. 109.
in
action?"
(leor-in, 318.
345
all
cases in
assignee, while in
the assignee of one
its
Massachusetts,
some
who
McCrady
v.
Brisbane,
McCord,
Nott
&
The author-
this,
ities,
support of
were not applicable to this covenant, since they were cases arising
under covenants for further assur-
tion
between
their several
natures
The
observed.
following authority
all,
at the instant of
its
creation.
In
Sprague
v.
that
"
chose in action
aliened.
shall
to the cov-
Cheves,
J.,
"almost
precisely the
authorizes me to
ment of
The ground of
objection
The same
point
and by a
v. Ridge, Cro. Eliz. 863
majority of the Court in the case of
may have
Green by
was determined
in the case of
Lewis
et al.
v.
Wilcocks, 2 John-
346
was adhered
to in so few words as
had never been doubted, and
one case the question seems to have been thought
after,
it
although in
an open one, 2 yet when the point was directly presented within
a few years past, the authority of the earlier cases which
son, 1.
similar doctrine
laid
is
down by Comyn's
would not be
that such
well warranted in
Master
v.
Miller, 4
&
Durn.
East,
which, he
says, the courts of equity, from the
earliest times, thought too absurd for
to adopt.
to
the
of the covenant,
it is
nor do I think
right,
Dig. Covenant, B.
3.
It, however, depends upon a rule
of the common law, for the avoidance
the law.
is
seems
It
decision
this point,
upon
to
me
required a
we might be
an action
for
plaintiff's
action.
title
He
is
principally interested
and those covenants
in the covenant,
is
and
in
tenance of his
rights.
Covenant
lies
Covenant, B.
terest
from
in
his
arises
3."
v.
Adams,
v.
Hawes, 13 Pickering.
Pickering,
549.
2
Pettee
327.
v. Clemence, 22 PickerMet. 'alt;
Clark v. Swift,
r. Dinsmoiv,
394;
Whitney
(Mass.)
6 Cushing, (Mass.) 128; OsU.nie r.
plaintiff.
Tufts
ing,
Thayer
494
:i
847
and Maine.
According, therefore, to the weight of American authorthe benefit of the covenant against incumbrances is
ity,
denied to an assignee, unless where it is either so exas to
pressed in itself, or so linked to another covenant
In examining the American cases which have thus established the rule referred to, it will be observed that the
1
As where
the covenant
is
that
fact injuring
of
title
no one
may be
Law,
(S.
109.
in his
Commentaries
case, if the injured party has not received a general covenant from his
as settled
Car.)
to the doctrine
by the American
remarked,
" that
to
it is
cases, has
be regretted
loss.
In such
cove-
nants for seizin or against incumbrances are the only ones in the
He
covenants.
is
person to
claim the indemnity secured by them,
for the compensation belongs to him,
ested,
fit
and the
first
4 Kent's Commentaries,
Lord Ellenborough got over
suil'erer."
472.
second
time,
want of
by holding
seizin
that
the
was a continuing
" but
this," said Chancellor
Kent, "is too refined to be sound.
breach
chain of
title.
In those parts of
this
beyond
his
own
acts,
it
becomes im-
and
Nommany
The breach
per tir
1:
is
single,
entire,
instances,
is
it
may
yet in
be that the breach
is
discovered, perhaps,
so,
and
in point of
348
decision
and only
in obedi-
common-
is
ence to what
is
supposed
rule, as illustrated
where a
who had
testator,
enjoyment, was
capacity for running with the land of course ceases ; a proposition too obvious to need the
support of authority, and
1
reported 2 Levinz,
831.
as to the
the act, Croke, claiming by title derived from the Lady Mary Powell
This case
is
26, 1 Ventris,
The
175, 2
Keble,
report in Levinz,
point
is,
now under
and is
and declares
full,
Luke Lucy,
and
and
Sir Peter
Van lore,
their heirs
the executors.
assigns,
;
Vanlore had
the
Lady Mary
upon
that
thi.s
be void, and
if no
fine should
that
all
fine
and that by
of inheritance
assignee,
whose
loss it
is,
To which
and not by
it was an-
The
rial.
84<9
enjoyment.
The
which,
case of Lewis
v.
in this country, is
or against incumbrances
point that a covenant for seizin
is
misunderstood.
The
was such
case
it
for
life,
remainder for
life,
that
it
all
statutes,
was extended.
this reversion to
The
question principally
moved
decisions.
In the
first
Shelton
(Mass.) 321
v.
;
Codman,
Fields
v.
3 Gushing,
Snell, 4 Id.
30
509
Tillotson
v.
Boyd, 4 Sandf.
S.
350
default, the
sheriff's
jury
this
aside
but
was
set
the
nominal
Court,
damages
by
gave
on the ground that, as the object of the covenant was that
the estate should be unincumbered within a year, it would
;
whole amount
it
of the incumbrance
and such a
distinction,
But, in addition to this, it seems not to have been observed that in this case of Lewis v. Ridge, execution had
issued upon the statute ; the land was actually extended ; the
covenant was therefore as completely broken as
2 Barn.
Swift, J., in the course of an able opinion in the case of Booth v. Starr,! Con" between a contract to disnect. 249,
or
charge
acquit from a debt, and one
to discharge or acquit
bond or other
liable
it
could be, 4
Saund.
117, n."
3
*
Supra, p. 134.
In this case, the word extent
in* its
general
xirution
with
synonymous
upon a statute or recognizance. This
sense, as
351
after
action,
becomes a chose
in
may
of the parties
and could never in any event be taken advantage of by personal representatives ; and it seems that the introduction of
covenants in place of the warranty, was intended rather to extend the remedy (both by means of the more pliable form of
the action of covenant, and by giving indemnity in the shape
of damages,) * than to alter materially the rights and relative
positions of those who might seek to take advantage of them.
was often the case
for although,
staple the
upon a statute
conusee could not, after the appraisement or extent of the lands, iminediately take possession of them, but
was obliged
eution,
Sandtbrd's
it is
said
time of
the party was dead or not in his bailiwick, the lands were extended and
his
had acquired
stances of the
word
In-
S.
" As
long ago as the
Elizabeth, it was held
that a purchaser of land could not
where
liberate;
Ridge in
v. Boyd,
C. (N. Y.) 521;
.
Queen
right.
Lewis
v.
Ridge,
35%
It
at the period
of
intro-
its
whom
come by
Such a
in his lifetime.
les-
1
sened the value of this covenant.
The
is
susceptible of modifiin the name of the
the
to
sue
cation, by allowing
assignee
original covenantee, will be presently considered.
But whatever
These are,
covenants for quiet enjoyment and of warranty.
with entire unanimity on both sides of the Atlantic, held to
enure to the protection of the owner, for the time being, of
the estate which they are intended to assure, passing with
it
alienation. 2
1
Thus,
it
be found
will pass to a
The
decisions in
Kingdon
v.Nottle,
enantor had
full
power
to assign
it.
sale,
title
purchaser at sheriff's
of a debtor's estate
Carter v.
;
"Penman,
McCrady
v.
Brisbane,
& Mc-
Nott
ney,
this
case
Metcalf,
more
injra, p. 862.
(Mass.)
81
see
particularly noticed,
353
the covenantee and his representatives, but by heirs, deviwho claim under the seizin vested in the
1
original covenantee.
Tims,
is
it
England,
to
"
For
and
instance, if
convey land
appoint,
and covenant
from time to
appointment, by
C under
his
power;
so, if
to the use of
in fee,
C and
nant with
his
and
heirs,
cove-
and C
him
in default of appointment,
his alienee,
it
cise of his
him
and his heirs for title, C's covenants
can be sued upon by the alienees of
D and in the two former cases, the
;
right to sue
30*
to B, in
from C. 2
successive owners
and the
himself received
v.
Mum-
have
proceeded upon a misapprehension
of the language of Parsons, Ch. J.,
in Bickford v. Page, 2 Mass. 460,
ford, 5
to
S54f
It is evident,
by A,
or
neither
nor B.
is,
A, B, or
but
apprehended that
is
it
if
could be held
man
should be
if
nanted with their purchaser and his heirs and assigns, and
one of these farms were sold to a third person, the latter
could never sue upon this covenant, because it might subject the covenantor to several actions;
lie
either for
e.
g. further
assurance, which might properly be confined to the particuy. Starr, 1 Connect. 241
Chase v.
Weston, 12 N. Hamp. 413 Williams
v.
Wetherbee, 1 Aikens, (Verm.)
239 Thompson v. Shattuek, 2 Met;
calf,
(Mass.) 615
Wheeler
v.
Sohier,
Her-
10 Georgia, 311.
l 3 Preston on Abstracts of
Title,
57, 58.
Ray de Chaumont
Forsyth, 2 Penn-
is
u.
J.,
ex-
nants for
It
seems to have
title
Uvn
in
355
to each assignee
with remainder in
fee,
ing
Stevenson
Twynam
105
&
v.
v.
Cress. 481
N. C. 756
Curtis
and see
v.
Spitty,
Bing.
Jarman's Con-
ever,
covenantor.
a
White
v.
(Mass.) 87
(N. Y.) 345
;
Whitney, 3 Metcalf,
v. Amidon, 4 Hill,
Hunt
;
Van Home
v.
Crane,
Penn-
for a long
term, in the middle of which the
it
was dismissed by
Paige, (N. Y.) 455 Astor v. Miller, 2 Id. 68; McClure v. Gamble,
3 Casey, (27 Penn. State R.) 290
406.
3
At
least
the
proposition
is
so
damages
something
had been devised in trust for a daughter for life, remainder to another for
staled in
life,
remainder over.
who
re-
appears to me
that I should be introducin<? a new
covered them
and
it
356
sylvania, it has been held that all the parties entitled to the
1
benefit of the covenants for title must join in the action.
in
Where
a case
way
is
to
Now
"Also
sonals, tenants in
Littleton says,
as to actions per-
shall
recover
a.
Therefore
is,
it is
plain
that with
which
rc-|icct to injuries to land for
damages are to be recovered by personal action, the person who brings
the action is entitled to the damages.
who
deliv-
remainder
to his children
and
it is
objected that the title and the covenant are single, and that all those entitled to the
remedy upon
in the action.
it
We regard
must join
this objec-
it
property divided
as
among them-
might have
to
pay
to all
much more
than
is
bivai-li
of
To
357
was made
in
one of
New
with covenants of
warranty,
ger, the defendant conveyed,
certain lots to the plaintiff, who in turn conveyed them, with
who were subsesimilar covenants, to different
purchasers
suit on his covequently evicted, when the plaintiff' brought
nant. It was objected that by his assignment to the different
devested himself of
purchasers from himself, the plaintiff had
but the Court
all
right of action on his vendor's covenants,
was bound to indemnify these purentitled him to support his action, and,
vendor might
by
themselves by the
to
plaintiff,
made
ler
Sanger, said,
grounds
recovery were, that the plaintiff's
14 Johnson, 89.
In the very recent case of
Whee-
title in
it would
legal title in the mortgagee,
follow that one who had given a
mortgage for the purchase-money
them
seizin
satisfied."
not,
of covenants
tion,
will,
purchasers
notwithstanding,
it
v.
to successive
Whitney, 3
see infra, p.
Metcalf, (Mass.) 81
362, and if it were held that in the
;
become
vest-
358
means adopted of meeting the difIn the case of Booth v. Starr, 1 decided
ficulty referred to.
in Connecticut in 1814<, it was held that the
right of action
these points, and another
of an intermediate purchaser
who had
all
prospective liability to
could not be enforced until that liability should have been
fixed by the recovery of damages
by them, and their actual
it
2
payment by him, and
New York
last assignee,
As
the
all
considered more
2 "Iii the
present case," said Swift,
J., in delivering the opinion of the
" the
in the
mortgagee
is
Connect. 244.
Court,
grantee or covenantee
of the plaintiff has been evicted, but
the plaintiff has never been sued,
who is
The last
immediate covenantor.
has
satisfied
his
subsequent assign-
every intermediate
covenantee might sue the first covenantor one suit would be no bar
to another
they might
man might
all
recover
satisfaction, so
be liable
to sun-
dry
thcre
has been
no breach of the
suits for
compelled
to
pay damages
to
sundry
same
will
action
l>y
to
the
Mumford 1
v.
359
this decision
it
may
with principle and authority, that where one has parted with
to or
all his interest in the land, he
parts also with all right
control over the covenants
and he can
it,
only regain that right over them by being made liable upon
own covenants and satisfying that liability ; 3 and when
his
out redress.
adopted that the intermediate covenantee can never sue till he has satdamages, no such injustice
can ensue. The subject may be considered in another view. In all these
isfied the
cases
it is
indemnify
nantees.
nantor
is
and
to
all
subsequent
covenantees,
The
Cowen,
his
137.
v.
615
Shattuck,
;
Wheeler
2
v.
syth,
Crump,
574
Perm.
1
Dev.
&
Markland
v.
wine
v.
Griffin
Fail-brother,
In
Fail-field,
would be a bar
to
be twice charged,
it
413
same
Metcalf,
(Mass.)
Sohier, 3 Gush-
3 Allen o.
Little, 36 Maine, 170;
Vancourt v. Moore, 26 Missouri, 98,
in which cases the passage in the
text was cited and approved.
860
title
and vests
tions,
in
and
is divisible
among
its
owners
for the
would be
entitled to the
protection of the covenants,
would seem
common-law
mortgagee
but
it
relation of the
title is
recognized, as
States, he must, on
absorb
the
whole
benefit
of the covenants,
principles,
to the exclusion, in a court of law, of any subsequent purchaser of the equity of redemption.
Thus, it has been
is
the case in
strict
Minot, 4 N.
McMurphy v.
251
Tufts
v.
550
White
Hamp.
Cavis
v.
(Mass.) 87.
Whitney, 3 Metcalf,
See this case, infra, p.
v.
362.
2
The Mayor
of Carlisle
v.
Bla-
Denton granted
to the Corporation
of Carlisle so much of the river Cal-
dew
mills,
nor
and covenanted
that neither he
his heirs
divert
its
were sued
as assignees of all the estate, right, title and interest of Denton, and the breach alleged was the
erection of a
across
among
the river.
They pleaded
other things that they were
not assignees of
all
an
issue
was
Denton 's
heir-at-
" to
say that the doEllenborough,
fendants were assignees of the estate
and mean-
and quality of
namely legal
whereof parties are
alone,
estate, in
estate
virtue
at all liable to
361
l
and in a very recent
a covenant for the payment of rent
case, where a purchaser having mortgaged the premises
was afterwards evicted hy a paramount title, and sued his
;
no
the action.
facts
were
So
in
it
similar,
was held
to be a har to
title
mortgagee.
Such a course of
decision
his only
Pargeter
Bench, 708.
2 Thornton
v.
remedy would be
in
Harris,
Queen's
many
on a different footing.
Whenever
the
money
spec-
Court, 17 Jurist,
(March, 1853,) 151; 17 Eng. Law
& Eq. R. 231 ; see this case noticed
more
title,
v.
McGoodwin
Stephenson, 11 B.
Monroe. (Ken.) 22. "The covenant in
the deed," said the Court, "is the usual
covenant of title, and runs with the
land.
v.
a mort-
ownership of the
estate, the
land be-
mortgage-money.
At
law, however,
31
ified in the
to the mortgagor,
having been
thus
reinvested
But see
title."
in/ra,
Chapter IX.
862
l
gagor and mortgagee," has been much relaxed, and it is
not necessary to have recourse to equity to establish the
New York
mortgage takes it
between the mort-
with
land
would meet
little
is
gage given
mortgage
is
to secure the
estate
the plaintiff,
who
after
when
title
it
was objected
the legal estate to the mortgagee, and hence that the plainBut the Court held that although a
tiff could not recover.
was certainly entitled to the benefit of the cove-
mortgagee
316
1 Per
Bayley, J., in Partridge v.
Bere, 5 Barn. & Aid. 604, 1 Dowl.
&
McGoodwin
infra.
2 Van Rensselaer v. Stafford,
kins' Ch. (N. Y.)
Van Rensselaer, 9
569
v.
v.
Equity.
3
.
Town
Y.) 545
Hop-
Stafford
v.
v.
see also
cott, 16 Barb. S. C.
4 White v.
t>.
Whitney, 8 Metcalf,
(Mass.) 81.
363
J.,
as
the mortgage as a
full effect to
give
but
purposes
it is
whether by voluntary or
1
its
By
who
it,
con-
Such a course of
purchaser.
estate to
Were it otherwise, in
case of the conveyance of an estate
with the usual covenants of seizin
be annexed.
subject
to
a mortgage which
be
the
dis-
can convey it, subject to the mortgage he may make a second mort-
vest the
He
estate
deemed
is
of the
mortgagor.
gage
debts
may be
it
he
is
considered as having
power of an
and
The
to give effect to the mortgage.
interest of the mortgagor is thereby
all
the
rights
regarded as an
estate,
it
may be
though in legal
poses,
estate,
dis-
strictness,
that
made
tion as if such
We
isted.
that
estate to
upon
the face of it, the conveyance of an
equity of redemption, because it was
attach,
an
was,
assignee
Suppose A, holding
364
decision
is
and
ience,
certainly supported by strong reasons of convenwhere, as in most of our States, the mortgagor
is
covenants for
title,
releases to
mort-
gage.
feet of title, should
make a mortgage
to B, afterwards
his
demption is
itor, and in due time and in legal
form, this equity of redemption is
sold at auction on execution, and
conveyed to D by an officer's deed
;
he
and of course
to the
same extent
is
the
But
assignee of the covenant.
the purchaser at the officer's sale,
purchases the whole estate, subject
to B's mortgage
to the same extent
;
estate,
the covenant.
limitations that
ho
Should
is
assignee of
enter to
if
under
his
were
to
It
he alone now has an interest.
may be added, by way of further
illustration,
the
that
purchaser at
should he do
stated in his
warranty attending
1
the estate
and
Lockwood
v.
it."
Sturdevant, 6 Con-
nect. 373.
"Mortgage deeds,"
Hosmer, Ch. J., who delivered
opinion, "generally,
if
said
the
not univer-
365
And
is
considered in a court
it,
defendant
the
the
upon
covenant.
The
latter
mortgage-money and
that
all
might have against the defendant under the covenant conare secured
sally,
by covenants of
title,
is
pie,
closure.
gage
release
and
foreclosure,
it
would be
may be
and of
cussion
is
under disThat
illustration.
by the mortgage
should faithfully be paid was the
intention of both parties, and to this
end the release was executed. The
31*
hold
that
the
title
by mortgage
if his title
and
this decision
Andrews
v.
Wolcott, 16 Barb,
17 Eng.
151;
366
of the covenant for quiet enjoyment as against the defendfor a reference to a Master to assess the damages,
ant
in
in his defence,
setting up
the mortgage executed
lease of the covenant.
"
The defendant
in
by the
this
case,"
Knight Bruce, L. J., "entered into a covenant for the peacesaid Sir
The
to him.
his
plaintiff
purchase-money,
having paid
entered into
The
possession accordingly.
plaintiff,
plain-
whose
been broken.
nantor
covenant
The
has
thus
defendant, the
aware of this,
covenantor, being
applies to the mortgagee, in
whom
was the
the covenant
off,
on
ac-
tiff
quiring thereby the right the mortgagee had, and takes at the same
full
my
action of
entitled
his original
things,
is
in
In
right.
this state
an adverse or paramount
asserted,
and the
possession,
plaintiff,
defends
of
title
being
himself
at
plaintiff
rights,
is
succeeds,
evicted.
and the
No man
can
damages,
from
the
cove-
of
all
is
in
and
satisfaction,
sible for
covenant.
him ever
The
plaintiff, therefore,
without remedy in a
court of law by the act of the deis
left entirely
is
-inent of
367
it,
and
it
covenants made
necessarily follows that a release of those
ineffectual
as
will
be
such
against
wholly
after
conveyance?
the purchaser as a second conveyance of the land itself
would
be.
I
is,
executed
by the
or
plaintiff,
the
to
memorandum
every shilling of
interest
his
advance, with
also be as-
he
is
entitled at law.
damages
seems
to
The amount
cannot, I think,
is
tions
and
costs
till
of
of this Court.
and that
ed brother,
Supra, p. 359.
infra, p. 371.
if
a jurisdiction
but I
am
rather dis-
plaintiff,
by
trial
due
diligence,
this
Liberty to apply."
29 Maine, 527
Prescott v. Hobbs,
30 Id. 346, and see the provisions of
the Revised Statutes of Maine, cited
Alexander v. Schriesupra, p. 343
ell,
405.
Cook,
193,
ogous
Cunningham
Knight,
13
was
Iredell's
decided
principle.
wife, seized in her right, sold land to
Harrison by a conveyance deficient
as to the private examination of the
it is
wife,
368
So
nants
given by the
it
and
is
gument
on and Green has a covenant, but
;
who continued
England,
of the
plaintiff,
in
by the
of course be binding as
latter, will
in
first
possession until the death of the
vendor, when he was evicted by the
his estate
heirs of the wife, and brought covenant against the executor of HarriIt was objected to his recovery
son.
that the deed from Howerton to
to pass the
ors be defrauded ?
estate,
by the
sheriff's sale
and deed,
If
the
Can
ble.
the substance ?
There
is
no author-
ity or reason to
itself
it
that a vendor
Thus
"
Knight,
Littlefield
392;
v.
369
many
ground
upon
fer,
it
New York
that an assignee of
were entered
latter
into,
Robb
v.
Lefevre, 7
Doe
v.
Rogers
Kaye
v.
v.
Waghorn,
Cord we nt
v.
v.
Goodwyn,
Johnson, 528
Langworthy v. Smith,
Dearborn
Cross, 7
In
for
(the evi-
it
Shaw
v.
States
to exercise
while unrevoked,
is
a justification
v.
Howell, supra
v.
370
1
Jones, premises which were subject to a mortgage were conveyed with covenants of warranty and for
quiet enjoyment, and in a suit on these covenants by an
v.
Suydam
the Court saying that " if the covenant passes to the assignee
with the land, it cannot be affected by the equities existing
between the original parties, any more than the title to the
land
to allow a secret
agreement in oppoof
a
covenant
running with the
plain import
land, to control and annul it in the hands of a bond fide
itself,"
sition to the
Greenvault
v.
was held
it
Davis,
decision
this
that
as
between
although
covenantee the former might, in mitigation of damages,
show the consideration to have been actually less than that
expressed in the deed, yet such evidence was inadmissible in
an action brought by the assignee of the covenantee. 3 So,
too, in
where a
certain
New York
Court of Chancery,
to be, in equity, a re-
fit
Hunt v. Orwig,
24
(N.Y.) 648.
But see Martin u. Gordon, 24
84.
Hill,
'
Kellog
v.
Wood, 4
Paige's Ch. R.
578, 616.
5
Brown
v.
in others.
1 7
B. Monroe, (Ken.)
v. Schrieber, 13
In Alexander
a mortgage), to Chouteau,
and then
der,
to
371
Schrieber,
covenants
from
the
words
plied
"
(See as
grant, bargain, and sell."
to this, the case of Alexander v.
Schrieber,
10
460, and
Schrieber mort-
Missouri,
acceded to
in the
name
name of Schrieber
AlexanAlexander ob-
against
of the
af-
damages recovered,
so far
rights imparted
by
that
What
the
conveyance
be amiss
The
law."
ber's purchase
said
We
bill,
not be availed
to
add
here.
It
to
As
372
"
peculiar
very recent case in Massachusetts, that there are
reasons why such a release might be held to be so closely
connected with the conveyance of real estate as to become a
1
proper subject of record in the registry of deeds j" and if
dlemore v. Goodale, Cro. Car. 503,
" the
defendant, by indenture, enfeoffed J. S. of such lands, and covenanted for himself and
the feoffee his heirs
make
and
assigns to
further assurance
which lands
J. S.
upon request,
conveyed to the
who
with
made, and
it
was dated
commencement of
thereupon
the
this
plaintiff
after
suit
the
and
demurred,
and
owner of the
Brown
more
its
enant had been annulled, the purchaser bought " with a knowledge of
the facts, he could not
acquire more
extensive rights than the covenantee
had," but in a very recent case in
" If the bond
Georgia it was said,
that the
law,
ute, shall
release
assignee, yet if the
had been
But
bringing this writ of covenant.
the breach of the covenant being in
the time of the assignee, for not levying a
fine,
nant,
vented
chased
with or without
50.
Field
The
title,
so as to
make him
upon a
mere
kind,
or
ion,
of
notice
Dewey,
"
it
release
of an
ordinary
the registry of
ivK-asc of a cove-
in
;\
at-
it
would seem
373
would
registry acts.
2
a former part of this chapter it has been shown
that although all the covenants for title, without distinction,
run with the land until breach, yet that the covenants for
But
in
in
Hence, the foregoing remarks must be limited in their aptached to a deed already the subject
of record, there are peculiar reasons
such a release might be held to
be so closely connected with the conveyance of real estate, as to become
why
in real estate, or
and
interest
with
conveyance of
the land, would, by being duly recorded, give an effectual notice to a
and
is
recorded.
It
will, in
from the
covenant of warranty, as respects an
subsequently."
1
Littlefield v. Getchell,
32 Maine,
392.
itself
a grant of an easement on
the same, of all which latter instruments the record would be effectual
estate, or
notice
to
subsequent purchaser.
These considerations will have their
proper weight, whenever a case arises
upon such covenant of warranty, by
32
Supra, p. 336.
But
still
effect
named, there
of their release, or
it
when
will
be understood, in order to
is
spoken
moment
of
is,
its
in
many
creation,
of
it
and
But
if,
and himself, recover damages measured by the consideration money, it would follow that the possession of a covenant for seizin gave much greater rights than the possession of a covenant of warranty, and that one who had sold
the land and received the consideration therefor, could, in
addition, recover
and
any
that, in case
liability
1 The
provisions of the Revised
Statutes of Maine, cited supra, p. 343,
of course except that State from these
remarks.
2
n<
Thus
ticut,
sold
in
Davis
v.
And
if,
ing mortgage, pleaded that the plainhad conveyed the land to a third
tiff
party
who had
375
mortgage
his
ing to the weight of authority, (supra, p. 134,) have been but nominal. In the recent case, however, in
Massachusetts, of Cornell v. Jack-
entitled to recover.
related,
"
The
defendant's counsel
The
plaintiff has
grounds of
inal
plaintiff
to the
damages cannot
son,
was proved
had sold out
property in dispute
for the same amount which he gave
;
and
it
It
Medbury
v.
own
intrinsic merit
That was an
Watson.
by which
to
for, is
not the
ages
market,
upon
fluctuations
in
the
their
value.
But
it
was decided
that
he
Keith
actual cost."
v.
Day, 15
In the case of
Vermont, 668,
376
it
becomes useless
for all
purposes,
necessarily to
result as a consequence of separating the nominal from the
substantial breach of the covenant for seizin.
tives.
benefit
name
of his
assignor.
It is familiar that although, by the common law, choses
in action were incapable of assignment, yet that such assign-
an*
by
He
to the University of Vermont.
then resold part of the land with a
from
to his
having excepted
it
of
2
it,
v.
in
Wyman
where land
a mortgage was
to
The
pur-
Juris,
Welch
v.
and
Wheeler
235,
Y.) 34.
Mandeville,
note,
v.
S.
C.
Wheaton,
Id.
277
still
although they
377
it
protect the latter from any fraud upon his rights committed
1
2
hy the former, and hence (as in the cases just referred to),
its
is
law or equity
sumed
American courts deem themselves reby authority from getting over it, and adopting the
English
rule,
name
the
in
if the
that
strained
when
the covenant
of the conveyance,
1
Legh
Riddell
v.
Crooker
Blin
son
654
8
v.
v.
&
Pul.
Moore, 617;
Simons, 529;
v.
;
Irby, 8
Dickinson
Grattan,
Humphrey, (Tenn.)
v.
p. 376.
2
Hoomes's Admrs.
Andrews v.
Pickering, (Mass.) 316
1 Johns. Cas. 411;
Raymond v. Squire, 11 Johns. 47; Suy;
Beecker,
dam
&
Dawson, supra,
p. 867.
Cowan
v.
Dunn
(Tenn.) 314
Mass. 485
Eastman
;
Shields,
v.
v.
Overton,
Snell,
15
Wright, 6
32*
As was done
v.
v.
Court,
Lawless
v. Collier,
71
Alexander
p.
Supra,
lier
v.
Phillips
supra, p. 365.
407; Statute of
Row
v.
180;
(Va.)
Maine, Rev.
343 note to
Kiddell,
is
Bos.
Legh,
Mannings Cox,
447;
it
remarks
878
be thought to imply a transfer of the covenant, on the general rule that the assignment of the prinof the land
may
draws with
the accessory.
So far, therefore, as the covenants for seizin and for right
to convey are concerned, these principles may, perhaps, serve
cipal
it
by the American
rule that these covenants are incapable of being taken advantage of by an assignee. The name of the original cove-
plaintiff*
1
ing the measure of damages.
But as respects the covenant against incumbrances, a
difficulty might, it is apprehended, be presented as to the
pleadings.
it is
covenants,
words generally, 2
upon the latter, it is necessary to set forth the particumanner in which the incumbrance has been the occasion
but,
lar
The
vendor,
it
to inquire
was referred
whether the
to a
Master
testator
had
ton
In
v. Court, cited supra, p. 365.
Kiddell v. Riddell, 7 Simons, 529, a
testator's estate
latter
of the
manor
chaser,
lat-
student
this
will,
of course
remember
that
title
of the
supra, p. 299.
2 s ee
supra, p. 53.
379
and where, therefore, this damage has not been suffered by the plaintiff* on the record, but
by one claiming under him by assignment, and to whose
of
damage
to the purchaser,
is
it
conceived that
is
it
might be
As
brought,
name
nantor
than in
benefit passes, if at
all,
a mere equity.
soon as made,
if
subject to
it
all
and
made by
Thus
in the case of
Thornton
It
v.
client
is
suggested, however,
is
that,
entitled to such
case of Proctor
v.
Thrall, 22 Ver-
dis-
But the
tion
380
an agreement by which,
An-
in consider-
Reservoir Co.
v.
Chase, 14 Connect.
123; Bulkley
v.
Landon, 3
covenantee.
Bartlett
The
Parker
'
233,
v.
this.
Story, J., in
law,'
Welch
may
Mandeville,
Wheaton,
in action,
and
afford
the assignee every protection, not inconsistent with the established prin-
common
law.
to a release,
procured by a covinous
son
63
v.
Holdsworth, 4 Dow's P. C.
Payne
407 Legh
;
v.
Rogers,
Douglass,
Bos. & Pul.
v. Legh, 1
Hickey v. Burt, 7 Taunton, 48
Mountstephen v. Brooke, 1 Chitty,
390 Innell v. Newman, 4 Barn. &
Aid. 419 Manning v. Cox, 7 Moore,
617; Barker v. Richardson, 1 Younge
;
447
&
11 Mees.
&
v.
Claggett,
83;
Strong,
v.
Kelly, 10
Webb
Smedes
Steele, 13
v.
&
Marsh.
N. Hamp.
ments of choses
They
84;
v.
Id.
2 Aikens, 373
Pearson, 29 Maine, 9
v.
Strong
v.
Bu-
of
course, apply to any covenant, released after breach; and the lan-
in
Cunningham
Knight,
also
suit,
absolute,
charged by this release. The covenant could never pass to any subsequent purchaser. If, however, the
recovery should be in favor of the
defendant in
liable
on
his
covenant
to
381
fied or released
would
arise,
even
if the
There
is
not
room
for the
same
conflict of authority as
it is
demand and
yet
it
determinate
it
will
In King
suffered.
v.
Jones,
live that
it
sus-
390; Rev.
c.
Jenkins
Stats, of Massachusetts,
7;
Webber
v.
Webber,
6
v.
v.
Jarman's Conveyanc-
ing, 40*2.
4 5
Taunton, 418, supra, p. 338.
he had
is, if
his death,
after
ulti-
there
seem
to be
to
it is
probable
however, the application of the general rule that this covenant runs with the land to an assignee, combined with the
operation of the doctrine of estoppel as enforced in some of
our States, would have produced a decision so apparently
and previous
4
recognized by the later authorities in that State.
Supra,
Pike
p. 222.
99 White v.Erskine,
leaf,
306.
4K3.
v.
Williamson,
Green-
FairfieM,
v. Patten, 33 Maine,
See these eases more partim-
Partridge
383
former part
of this chapter, in order to prove a want of capacity of
the covenant for seizin for running with the land, has been
in the cases cited in a
it
quiet
that
alarming consequence
of the
his
total
loss
covenants for
from them.
The
when
of the land,
title,
a purchaser, by reason
most needed the help of
question
sideration.
it
without interruption.
came by assignment
to the plaintiff,
From
Abel, the
who, being ousted
Supra, p. 336.
Supra, p. 165.
384
this
argu-
being
still
it
" The
cases are eminently correct.
consequences of this doctrine are very important at the present day.
No inconvenience could arise from it under the old common law, except
3
in
&
4 Bos.
Pull. 162.
this case
its
not become void until after the assignment, and, consequently, there
was a chattel
interest
which passed
pressly put
to the assignee and which was sulHcient to support the covenant; Lcwi-
lease
i>.
3 1
Spencer's case.
385
But it
a recovery in Noke v. Awder.
did not apply to conveyances of freeholds ; for as they were
by livery of seizin, an actual estate, although comin defeating
effects
conveyed
mencing by tort, was, in all cases, transferred to the first feoffee, and might pass from him to any subsequent assignee.
Thus, when a feoffment was made, although the feoffor
might have previously had nothing in the land, the feoffee
took an estate of freehold, which was susceptible of being
transferred to a second feoffee, and carrying with it
ranties and covenants made by the original feoffor.
conveyances taking
effect
all
war-
But
in
the
and
legally possessed by
course, therefore, in the very case in which
to an estate totally fails, and in which the pur-
the vendor.
title
who
Of
has taken
it
of
Noke
v.
Awder
as applied to our
in
North
v.
Montgomery,
Cranston
10
paid by
Hugh Montgomery,
chase
money with
interest.
There
was
also
Mary when
for
the use of
sale
to
McConnell, covenanting
S3
386
Nor
to meet this
difficulty by the suggespossible
tion that the covenantor is estopped from saying that no
is it
A verdict
Montgomery.
found for the
having been
a motion was
plaintiff,
made
said,
without any exception, that a covenant to run with the land and bind
the assignee must respect the thing
that the act
granted or demised, and
fendant's testator,
who
efit
Then, can
bargain and
shall quietly
enjoy, or obtain a conveyance for
an estate which
this
is
owned by a
third,
when
man
sells
Mary
seizin
had no
McConnell, the
plaintiff could,
any
privity
The maxim
transit terra
cum
onere
the land,
presupposes a transfer of
and when that actually takes place it
forms the
medium
tween the
assignees.
we make a presumption
against
fore,
the plain statements in the declaration, the title of the lot never ceased
in the daughter
right.
ity is
ties."
The
quently
plaintiff,
filed
however, subse-
bill in
equity,
upon
by
his
deed
for
will be
it
387
remembered
that
paramount
title,
who
Court,
day the
plaintiff,
who brought
and it was
had assigned
the covenants would
held that
the
if
the lessor
reversion,
471,
it
v.
Knight, 4 Vermont,
in order to give
disseizin.
observed,
"
disseizor
But a person
against
whom
there
is
be
to
sufficient to pass
the legal
title,
by reason of conwas
One
purchaser, the others joining in a covenant in the deed to warrant and de-
fend the
land against
themselves,
under
Kinney, 3 Randolph,
(Va.) 396, the case itself must not
be deemed to be an authority against
as contingent devisees
in
Randolph
timet,
v.
them.
The
and
their
claiming under
purchaser resold the land
father's will,
all
to
chaser, so as to entitle
relief
him
to
an in-
1 Noke v.
Awder, supra, &c.
the cases cited, supra, p. 182.
see
388
averment
in
toppel.
In order, therefore, to avoid these consequences, a decision was made in New York in the case of Beddoe's Executors
v.
it
may
be unsustained
the covenants for quiet enjoyment and of warsaid by the Court that no case in that State
ranty.
had been produced " which denies that these covenants pass
carry with
It
it
was
word
take the
estate in its
said there is
may
Nor when we
attach.
It is said
tion or circumstance in
8
;
by Blackstone to signify the condiwhich the owner stands with reand a mere naked possession is an
ownership or
estate-)
may
is,
against a title paramount ; and, in that sense, is assignIt is said, in sevable within the restriction insisted upon.
it
incidentally.
first
making good
2 Blacks.
Comm.
108.
ment
1
title.
389
When
turbed.
broken
the possession
the latter event transpires, an action
is dis-
till
lies to
v.
Rawson 2 was
mesne
conveyances.
They
to
yielded
an ouster under
title
para-
an action
failed, in
against the original covenantor, to prove any actual occupancy or seizin of the land by him at the time of his enter-
On
was
set aside
and
this
new
"
ordered.
for the
To
plaintiffs
support an action by an assignee on the covenant of warranty,"
said the Court, "it is necessary that the warrantor should
have been seized of the land ; for, by a conveyance without
making
If,
is
no land
to
which
of his deed,
was not
seized, then
covenant of
3
stated,
is
Waldron
seizin,
McCarty, 3 Johnson,
33*
Car-
plaintiffs."
That
is,
On
because the
a sub-
plaintifis
390
1
sequent trial, however, the plaintiffs gave evidence that both
the covenantor and his father had exercised acts of owner-
seemed
plaintiffs,
" for
all
his covenants
"
that, al-
disseizin
His
title,
therefore,
by
his
grant
Slater
v.
Rawson,
See
this doctrine,
which
States, attempted
et seq.
is
almost
New England
to be
explained,
in
New York
Poling, 2 Barb. S. C.
306, professed to follow that
of Fowler
Metcalf,
(Mass.) 489.
v.
Rep.
Beddoe's Exrs.
of
v.
Wadsworth,
souri,
Barb.
C.
S.
grounds
Rep.
166,
of decision
and
of the
the
cases
inson
391
v.
tan, (Va.)
case of Lewis
v.
Cook, 13 IredelFs
down
fol-
use for
it
had an
'
infirmity,'
and
simple.
was good
of Jones, and then it was only wrongful as to the heirs of Mrs. Jones.
As
it was a
good
Suppose Howerton had died seized could there be
a question that his wife would have
been entitled to dower ? Her estate,
like that of her husband's, would be
tinue
We
ranty
is
which
it is
heirs
of Mrs. Jones.
Or, suppose
Howerton had continued in possession for more than seven years after
as if there
with war-
it is
be an estate to A, for
life,
This case
is
counsel
is
in reference to the
mean-
When
'
'
'
expires by the
terms of its own limitations.' If there
is an eviction by title paramount, the
it is
spent
estate
not consistent with his having an estate only for the life of Jones.
The
is
(possibly his Honor fell into
error by not adverting to it,) Jones
purported to convey a fee to Har-
truth
rison,
fee to Howerton,
covenant to Howerton,
assigns,' which is anthe estate and runs with it
his heirs in a
'
his heirs
nexed
to
and
'
for
protection against an eviction
title
by
paramount." See also the
its
dissenting
Spruill
v.
392
1
419.
of Martin
Benning,
case of
J., after
Noke
v.
quoting in
Awder,
said,
full
the
" This
Courts of
New
York, or those of
"
was considered so entirely an accessory obligation that it could subsist only as an incident to some estate
in the land, this produced no inconvenience in the ancient system of
upon
own
The English
cases, I
to support the
law of Georgia."
The decision, however, sustained the
recover on
right of the assignee to
title
show
enants.
subsequent pur-
.
The general doctrine
of the old law as to the real warranty,
.
title,
between previous
parties."
151
"
ty of the
common
first
is
possession
under a claim
of
title
subsequent assignee."
2 See
supra, p. 339.
Awder
is
at the head,
other words,
an assignee,
how
it
will vest in
him
3Q3
interest is suffi-
an assignee l in
be which, passing to
title to
may
evil at the
when
period
conveyance passes no greater estate than the grantor himit seems the
height of hardship to deny to a subse-
self had,
quent assignee the benefit 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 covenantor
no
from him, he
is
protected on
this
when
very
ground.
When,
by virtue of his
which, if it endure
title
was argued,
p. 391,)
it
it
to
should pass
2 See note to
Spencer's case, 1
Smith's Leading Cases, passim.
tiff,
3Q4f
CHAPTER
IX.
THE
was
far
it
more
of rebutter,
by the remmeans
of
voucher
or
a
warrantia
chartce,
by
afforded
edy
and upon the
way
effect
of this rebutter in
its
" until
restrictions
its effect
latter
other
had
ranting ancestor.
l
lost,
sufficient lands
4
"
profitably
referred,
gested.
p.
365 a
see
also
I.
p. 5.
his note
Litt.
to
p.
373, for almost the only clear exposition to be found of the law of warranty.
BY
SQ5
title,
thereafter have
same ancestor."
the
To
Gloucester
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
warrant."
The
1
statute of 11
2 Blacks.
Comm.
302.
Hen. VII.
See pas-
20, invalidated
all
v.
warTodd's
of his wife joined with her in the conveyance of her land by a deed which
sioners, 119.
2 6
c.
I. c. 3.
and his
and if any
heritage descend to the demandant on
bound
to warrant,
be bound
that
is
to
him descended."
A very re-
ranties
The
children.
children of the
first
marriage brought ejectment to recover the land which had been their
mother's, but by force of the statute
referred to, failed to recover it, on the
ground that they had received assets
by descent from their father to the
life,
or in
it was
designed to accomplish, it is evident that this defence allowed the purchaser, and
which operated by way of rebutter,
the plaintiffs.
And as they have discharged a liability which was by law
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.
full
for such
it
an action,
must fre-
ranty, because
it
satisfac-
This effect
is
produced by way
would
having assets
by
from
amount of the
liability
That value, with interest tlu-reon from the death of their father, is
all that the plaintiffs have a right to,
as they were not entitled to the pos-
Look-
eviction.
ity.
BY
tail
made
397
cestors,
tenant for
either
life,
and
Anne
declared to be in force
is
in
founded alone
what amount of
some of our
has, in
2
some,
States, been
it
The
ranty
is
statute of 4
16,
"for the
the better
administration of justice."
2 In llhode
Island, the 21st section
of the statute of Anne was declared
this action
assets is
it
by Story,
J., in
remainder
would
have
it
to
Sisson
v.
Seabury,
and hence
statute
c.
as the
Anne,
who
in fact
was tenant
to his children,
himself to be tenant in
supposing
made a
tail,
for
reason
of
further
assurance.
By
34
In
Pennsylvania,
however,
al-
398
Anne were
in force in that
where
Eshelman's Lessee
in
r.
Hoke,
in
Penn-
did not
father.)
ation of a warranty
butter.
is
express, that
lish
by Littleton
tail,
who
discontinued with
in value
his father.
tive of
for the
apparently to escape
from the hardship of the decision, it
was also determined that such war-
rantor
but,
common
law,
and
The
(1).
justice
principle
applies
with
BY
399
is
said
when
ter.
dan
out
is
its
qualification.
note.
It
sel for
the
is
believed that
plaintiff' in
and
That decision
the
if
present
the coun-
further,
before the
have been
different."
v. Norcross,
17 Pickering, (Mass.) 14, the plaintiff' in an action of
ejectment deduced
a perfect
ises
title to
plaintiff's wife
was
without
title,
had purported
to sell
it
living
sets of greater
This
came to the
He and his
wife,
wife
ancestor.
father,
it
ity to
If the
demandant were
to
It
would not be
prevented where there were a numthat circuity of action
400
by
statute, its
that
according to
common
called
upon
would be
if
to cases
the
We
of
English
are not
to decide
Accord-
and use of the estate such an interand title during the marriage as
enables him to control it He has a
;
est
ing to 4
it
clear of
all difficulty
on that point,
warrantor."
by
The
real
payment
The
statute
Anne was
of
New York
enacted in
re-
in 1788, but
xii.
28),
a tenant for
life
is
declared
(tit.
warranty made by
shall not, by descend-
and a
not, in
collateral
warranty
shall
any
see
v.
Williams,
Id. 509,
it
Moore
In Flynn
was held
In an action of dower
brought by the husband and wife
against the purchaser from the former, it was held that they were estopped by his covenants from claiming
of warranty.
their
had made no
that
without
the
and
at the death of
any
BY
401
heirs
to
as
the
to
go
made
survivors.
partition,
The
sons
out issue
and
it
and hard
tificial
Ch.
J.,
which
man
at
to
this
sell
day
is
to enable
one
and
justice of
modern
law.
But
it
it is
was
v.
Myers
ditional limitation or
vise,
fee,
For a reference
Randolph, 549
Rev. Code,
1849,
tit.
33,
Norman
c.
c.
He had
an estate
But from
this
34*
v.
Cunning-
Acts of
7,
when
pass or assume,
if
what
by which
and
his
purports to
anything descends
his heirs
785,
the deed of
from him,
21); Code of
116,
tance, but had the fee simple in possession at the time he entered into
.
99,
it is
the Virginia
to
not simply tenant for life, nor entitied to the bare right to the inheri-
the warranty.
executory de-
(1
Anne
Busbee,
v.
For
Craig,
ham, 5 Grattan, 63
is
taker
case of
first
his heir,
what
it
shall
is
be barred
so descended
to
and
469.
402
tia
its
whom
it
mouth
But
effect
of an estoppel
much
by
deed.
it
had
also a
no
any after-acquired
title,
title
would enure
to the latter
by
him in the
him by the
conveyance.
classes of cases in
which an
estate thus
Though
referred
to,
" a
852
kind of estoppel
in this
"
;
Co.
b.
2 Co. Litt.
352
a.
"
The
reason
known
till
so neither
tidn of this
is
of
v.
why
to allege
contradictory proof."
Temple
56, infra.
shown
An
illustm
Parti-idgr,
I-'
Main.-.
BY
403
1
which he might
thereafter,
by any
possibility, acquire,
and
The
principle has been applied in modern times.
second class of assurances which passed an after-acquired
this
parties
Co.
Litt.9
2 Doe d. Christmas v.
Oliver, 5
Man. & Ryl. 202; S. C. 10 Barn. &
181
Cress.
&
Barn.
Helps v. Hereford, 2
Aid. 242 Doe d. Thomas v.
;
See
Jones, 1 Crompt. & Jerv. 528.
the examination of Messrs. Humphries,
Coote,
&c.,
Prop. Report.
3 Bac. Abr.
Real
the
before
Real
Commissioners,
Property
tit.
Leases, 296-441
In
Williams
on
Real
Property,
creation
lord
Salkeld, 27G
Wells
v.
Aus-
tin, 7
to the
crea-
tion
of the lease.
This might
these cases
is,
obli-
The
dis-
lessor should at
by
estoppel, shall
now take
effect
out
and shall become for all purposes a regular estate for a term of
lessor,
years."
404<
to
was
title
by
actually passed
man
it
and
discharged,"
1
if
"
65
Grant,"
Touch.
Hobart, 45
240; Lampet's case, 10 Coke, 48.
2 Brooke's Abr. tit. "
Estoppel,"
Perkins,
WivePs
pi.
146
tit.
case,
Doe
d.
Lumley
v.
Scarbo-
Bucknell, 2 Barn.
Thomas
&
Adolph. 278,
mortgage
and
tered and mortgaged them by indentures of lease and release to the les-
the cases
2 B.
& Stu.
& Aid.
and
others, 3
lutely,
years
and
le-
rightfully, abso-
Some
was con-
for a valuable
prior mortgage,
title
and
to
whom
all
the
question
from doing so
Co. Litt 352
equitably,
The
gally or
"
entitled to recover.
on which the Court took time to consider," said Lord Tenterden, who
delivered the opinion, "was, whether
the defendant, claiming under the
for
And
tp,
a release. 2
it
Sim.
and
a, Litt.
sect.
of Bensley
519
242
Helps
693,
v.
Hereford,
Goodtitle
Term, 365
and
Burdon, 2
v.
v.
Morse
Goodtitle
Goodtitle v.
v. Bailey, Cowper, 597
Morgan, 1 Term, 755 Doe d. Christmas v. Oliver, 10 B. & C. 181 Tre;
v.
ley
v.
ently)
Doe
y.
Oliver.
The
last
two are
405
there
is
no doubt that a
erate by
present
way
is
says,
'
sorts,
'
By matter in writing as by
deed indented, by making of an acquittance by deed indented or deed
defines
poll,
or deed
And
there are
incumbent
that he
ation
had nothing
till
Litt. is
Now
cital states, in
At
recital a
all
and exceptions
the case
is
made
is
'
put
An
impropriation
an incum-
his successors.
events, there
want of
is
in this
that certainty of
though a
is
is.
qualifications
impropri-
fact
But upon
appeareth
pel,
many
it
in the
cumbent.'
many
poll.
poll.'
it
This demise
dieth.
a particular
recital of
And upon
this,
the
judgment
case
well entitled to, the lands and tenements thereinafter mentioned in reversion or remainder, and by the
deed he granted and released this
remainder, and covenanted that he
was seized of it for an indefeasible
estate of inheritance.
Master of the
The present
Rolls, then
Vice-Chan-
406
by whom
this case
was
first
Perk.
65, that
possession nor
matter
in the
right
is
utterly void,
and nothing
lease
judgment
put
it
on
cluded (see
and
infra).
That
case, therefore,
equitably entitled.
We
think, there-
by way of
bargained, sold, aliened, remised, released, &c., the premises, does not,
446, that
'
no right pas-
So here,
passes.
if
the
pass
construction of these
books in
Abr.
146
tit.
Estoppel,
pi.
his
10 Vin.
Abr. Estoppel, M.
" The case was
put, in argument,
on another ground for the lessors of
the
estoppel.
"We are
down,
release
plaintiff,
within the
namely, that
common
it
was
father
disseized,
the son
may
gage
to the
which
to
way
407
in
such con-
v. Morwhere a second
Term,
755,
v.
Simpson,
and see
71,
Car.)
Doe
infra.
v.
a lord of a
the
afterwards purchased
copyhold lands held of this manor,
and took surrenders of them and it
manor,
against the
incidents passed
the
question
right
the
of
prior
manor be-
that the
mortgagee.
ought here."
The
solely
on the
escheats, forfeitures
1
as presented in
rights of the parties
it
is
ex-
plaintiff
sought to
questioned
be disturbed by the de-
be held
to operate in favor of
a prior
mortgagee or purchaser,
as
Vernon, 11
supra, p. 192;
Lamar
ties."
Kennedy
v.
Skeer,
Watts,
(Pa.) 98.
8 Goodtitle
v.
Bailey, Cowper, 559
Errington, 8 Scott, 210 Bow;
Doe
v.
man
278
v.
Carver
Kearney
v.
Van
Rensellaer,
How-
ard,
Crock,
v.
Kinsman
v.
J.) 172;
408
or future, vested
actually transferring every estate, present
or contingent, to the feoffee, conusee, or lessee, according as
the
mode
a lease
being no authority
that
it
in
to
show
species of conveyance.
was estopped by
estate in
his deed
3
it.
See
infra.
44G, will
81
201.
by Kent,
J.,
Ischam
v. Morrice, Cro.
Car. 110; Co. Litt. 45 a, 47 b, 352
a, b
llawlyns' case, 4 Coke, 53 a
thorities:
Salic.
2Z6; Palim-i-
r.
Nick r.
inwhich
3
P.
Wins.
373,
Edwards,
Kkins, 2
Raymond, 1551
BY
409
But whatever may have been the grounds of these decisions, it was shortly afterwards held in the same State, that
where one conveyed land ,to which he had no title, by deed
of bargain and sale without a covenant of warranty, a
subsequently acquired title would not enure to the benefit
of the bargainee even as against the bargainor and his
1
heirs, and in subsequent and recent cases, both there and
elsewhere, the same doctrine has been adopted and
now be considered as well settled. 2
deed
at
by
man
bounty lands,
ture which
is
not
his,
or levy a fine
no covenants
of the
act
may
In 1806, an
was passed,
to
be
letters-patent
for
title.
legislature
authorizing
" for the
granted to Boise
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
to,
Murray,
said,
either of
stat-
it
If
to
the
doctrine
of
them
though
may be sound, I apprehend there
would be difficulty in reconciling
not,
them with
The
&c.
entitle
tjie
rule in Littleton
"
;
new
him
trial,
to recover,
and a verdict
without argument,
when
The deed from Boise
be presently noticed.
l Jackson d. McCrackin v.
Wright,
14 Johns. 193. The facts were these
granted, bargained, sold and quitclaimed to the lessor of the plain till',
" all
or
as
in
fee,
Jackson
v.
Hubble,
Cowen,
?'.
Waldron, 13
410
wards,
under the
will of
ferred to below)
Medcef Eden,
Sparrow
re-
v.
KingY.) 247;
had purchased in
leased
(Mass.)
v.
Fox
504;
Stevens, 3 Gray,
v.
Widgery, 4
title,
his lifetime as
in fee.
of involuntary alienation, as
where a creditor levies upon land of
cases
to
title
subsequently acquired
Freeman v. Thayer, 29 Maine,
369)
estopped
assert
Dart
v.
Dart,
Connect. 256
475
Bell
v.
H.) 401
Alabama, 413
;
Darst, 14
v. BalIllinois, 308, overruling Frisby
This is
lance, 2 Oilman, (111.) 141.
;
Frink
v.
Mr. Hare,
Duchess of Kings-
by
(5th Am. ed.)
letreau v. Jackson, 11 Wendell, 110,
13 Id. 178, where
authoritatively
it
was
finally
and
decided, after
long
that the
is
devoid of
all
effect,
both as
the execution
after
of this assign-
depended on whether
it passed by
the assignment, while yet contingent.
It was contended on behalf of the
that
contingent interests
released although they
could not be granted, and that the
assignee,
might
be
the
But
does
tingent interests to be released,
not apply when the uncertainty exas well as to the
tends to the
person
estate,
rily
would
be
the
survivor
until
the
his
event, neither could cxtingui>h
the
before
a
ivli-asi-,
by
interest
This decision
411
any
by virtue of the warranty,
the party claiming under such conveyance, with the same
vendor
become possessed
shall
of,
and
veyed,
shall
and
be in
and that
a deed which fails as a conveyance
cannot be set up as an estoppel,
even as against the grantor and
no
that
estate
in
trust,
the same,
the
legal
subse-
estate
veyance
tee,
shall
be
Cocke
v.
Brogan, 5 Pike,
699.
So, in Missouri, the Revised Statutes of 1825 declared, "If any per-
son shall
sell
and convey
to
another
Stats.
be as valid as
shall
1845,
c.
32,
3,
p.
if
219.
such
See
13 Missouri, 379;
Valle v. Clemens, 18 Id. 490
Geyer
v. Girard, 22 Id. 120. In Illinois, the
v.
Bogy
Shoab,
308.
In the
Norcum
late case in
Missouri of
father,
estate devolved
3
recognized and applied.
Somes
Skinner, 3 Pickering,
v.
Eastman,
Metcalf,
Jackson
Winslow,
v.
Cowen,
Wood, 4 Paige,
(N. Y.) 578; Sparrow v. Kingman,
I Comstock, (N. Y.) 247; Rathbun
(N. Y.) 18
v.
Kellog
v.
S. C.
Rathbun, 6 Barbour,
(Conn.) 479;
Connect. 226
Id.
Cadwell, 19
Sherwood
Lawry
476;
v.
v.
Barlow,
Williams,
13
Baxter v. Bradbury, 20
260; Pike v. Galvin, 29 Id. 183,
*Maine, 281
Id.
Dudleys
;
(N.
Dimon, 5 Day,
v.
107; Hoyt
Y.)
Fairbanks
leaf,
N. Hamp. 533
Id.
389
Gough
156
(Mass.) 121.
3
(Mass.) 30
Rhode
(Mass.) 52.
2 Trull v.
Wark
Thornclike
ter,
II
Id.
v.
Willard, 13
Norris, 4 Fos-
v.
Jewell
v.
Porter,
v.
(see Potter
Island, 44,
v.
Newcomer,
Davis y. Keller,
Leigh, (Va.) 376
5 Rich. Eq. (S. Car.) 434 Massie
v. Sebastian, 4 Bibb,
(Ken.) 436;
;
Logan
Logan
433
Dana, (Ken.) 76
Monroe, (Ken.)
v.
Moore,
v.
Steel, 4 B.
Dickerson
Perry
v.
v. Talbot, 14 Id. 64 ;
Kline, 13 Id. 124 Rigg v.
;
ter,
(Alab.) 141
Tillotson
v.
Ken-
v.
Thayer, 6 Gushing,
v.
v. Morris, 1 McLean,
does not appear wlu'thrr tlu-rc
was a warranty or not, but it was
44,
Gibbs
Funk
mer's Lessee
316; Patterson v.
Pease, 5 Ohio, 190; Scott v. DougBarton v. Morris, 15
lass, 7 Id. 227
Id. 408
Dos well v. Buchanan, 3
Wa.lc
413
400)
v.
Potter, 1
v.
v.
supra, p.
it
BY
based,
these decisions
are
to
which
these
by Wai-
M'Cormick,
passed.
The
413
v.
And
the
"By
the
common
no
it
land,
himself.
such after-acquired
the original
title,
claim; Co.
la
Ley,
Diet. art.
Litt.
365 a; Termes de
tit.
all suits
brought
lease, if
and the
and then
land,
lease
a stranger,
subject to the
in as the assignee,
sells it to
and coming
it
47, note 11
L.; Bull
868
52
v.
Somes
Lond. ed.)
v.
Trevivan
Skinner, 3 Pickering,
v.
Lawrence, 5 Mod-
to
as against
the
lessor,
original
35*
title was
Jackson v.
that,
v.
Williamson,
7 Greenleaf, 97; see the dissenting
opinion of Mr. Justice Wells, 30
Maine, 539
Ham
and see
v.
Ham,
v.
Partridge
v.
tration of the
doctrine of estoppel
may
lead.
Ward,
who
did not,
it
to
him a release
veyed them
defendants.
by
the
J., dissent-
ing), that
plaintiff,
by
way
Nor could
any other mode, unless 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
so operate in
it
to
'
be
true, to allege
This,' says
Kent,
'
is
it
to
be
false.
then
it
operates by
way
of estoppel
The covenant
otherwise.'
of
tis,
40 Maine,
how-
as those in Trull
ever,
One
duct."
however, to imagine
how a more solemn assertion could
have been made than was contained
It is difficult,
was,
I,
lison,
nor
my heirs,
of
me
way
any
by any
bound
grantee in
to search the
it is
difficult to
At
to the
the same
New
proved.
J., in his
dissenting
(published in 30 Maine,
539), adhered, however, to the law
as adopted generally in the Northern
opinion
States,
plaintiff
v.
Cur-
v.
Eastman,
father's death.
we
should abide by
somewhat singular
it."
that in the
v.
York had,
in order to avoid
an em-
barrassing result necessarily following from the application of the doctrine of estoppel as held in the class
of cases just cited, been also obliged
to make the same decision as was
and
it
416
by the transfer
satisfied
is
an actual
to the purchaser, of
is
New
England
covenant.
ited to
States),
to the purchaser.
1
121
See Trull
;
Miller
(Mass.) 34
v.
v.
Eastman, 3 Metcalf,
Ewing, 6 Cushing,
reconveyed
claim and
cited infra.
See supra,
Fox
p.
20
et seq.
Widgery, 4 Greenleaf,
v.
(Mass.) 333.
And
in Missouri,
it
has
been held that the statutory covenants implied by the words " grant,
"
bargain and sell,'* do not operate as
the ancient common-law warranty to
transmit a subsequently-acquired title
to the covenantee, nor do they operate as a rebutter against the grantor
in respect to their obligation as cov-
Chauvin
enants."
v.
Wagner, 19
Missouri, 531.
ises
by
parol,
purchase-money.
the
title
to
sold
them
premises, subsequently
At the
to the tenant.
to
them
demand
all
and
in
title,
to
the
the consideration-money.
The
ten-
estate,
with a
cannot be allowed to
set
up against
either
by
purchase
or
otherwise.
BY
There
is still
417
Such new
title will
enure, by
way
of
law.
an
enant and
own
cov-
that
is
He
large
to
it
away
it,
subsequently obtained by
him, because if he should recover
against his grantee, the grantee in
if
may
By
it is
up a
title
his turn
would be
entitled to
an ac-
whereas,
if
or
Now
Waters, after the tenant's quitclaim deed, had evicted the demandants, this
Or if the
now held under Waters with-
tenant
title
of Waters
he must be understood
value.
If,
only his
own
title
estate,
restricted covenant,
and
is
co-exten-
but
not to any
title
which he might
and
after-
Mass. 250.
no reason
to
There
is,
therefore,
title
118
on
its face,
purport to convey an
" the
right, title, and interest"
of the grantor, even although the deed may contain a general covenant of warranty, yet, in cases where that cove-
not,
nant
is
held to be limited and restrained by the estate conto warrant a perfect title, the doctrine of
of Waters.
The demandants
can-
possession
efit.
" It
ant's deed,
had
and
it
to convey, or
much
it
in
possession
of
the
land
under
to the
ance
them.
The demandants,
nant of warranty
doctrine to the
v.
Bell
a valuable interest
in
the land by
restricted
tenant's
in
to
by the de-
401,
Twilight, 6
(where there
v.
opinion);
Tillotson
Kennedy, 5
r.
\Ya-iirr.
BY
estoppel in passing,
419
it
when
afterit
ap-
intended to
pears that the grantor
of.
veyed
all
his right,
title,
and
interest in
and
to the undi-
vided real estate devised," with unlimited covenants of warit was held that the deed
ranty and for quiet enjoyment,
vested
his
interest, and the warranty being
conveyed only
not thereby estoponly co-extensive with the grant, he was
ped to claim the contingent interest when it became vested
1
by the happening of the contingency, and this doctrine has
1
Blanchard
v.
Brooks, 12 Picker-
" The
grant in the
ing, (Mass.) 67.
said
deed,"
Shaw, Ch. J., in deliver"
ing the opinion,
title,
and
of the
the
all
his right,
is
itself, if
own
it,
afterwards acquires
same land or
specific interest,
of the
right,
land
does not
that
premises, that
land
and
or
itself,
of
is
is,
must be confined
title,
conveyance of
and interest ,in
an estate therein,
ranty
right,
is
or interest,
heirs,
pel."
So
in Miller v.
it
Ewing,
was said
Gush"
The
had an
estate
and
interest de-
to
Day.
So
420
of
all
clause,
so that neither
There
&c.
I,'
There are some further qualifications to the doctrine that the estoppel created by the warranty passes
an after-acquired estate. Thus, it
has been held that when a deed, by
reason of
Lessee
stated,
Hepzibah, who
never conveyed to anybody her original one fifth, which descended to
fifth
of
Derby
Coe
v.
(Mass.)
56
Devisees,
Lewis
v.
Wyman
Grattan,
v.
Barman's
162
(Va.)
Baird, 3 M'Lean, 78
Valle
ply in
undivided
imperfect execution, is
the estate and
its
insufficient to pass
Pickering,
it
was
he
letter, spirit
act."
or policy of a legislative
this, supra, p. 31. In
Michael, 4 Sandford's
See as to
Dominick
v.
S. C. (N. Y.) 417, it was left undecided whether a covenant for further
settk--
refers to a recital of
any particular
lirini:
if
not
all,
of
void.
in
11 Ohio, 316,
ful
it
to the
which
The
brought.
to
town was
prietor,
see also
So
in Stokes
Jones, 21
Alabama, 738, (and see S. C. 18 Id.
734,) it was held that a covinous deed
v.
title
by
estoppel, as against
In Rector
v.
Waugh,
17
After
the
one or more
bonajide purchaser from such rightful owner, it was held that the doctrine of estoppel would not be suf;
another.
indemnify
laid off,
who
veyed
to
parti-
tion.
number of proprietors
partition.
"
fails.
If the
among them.
The
an outstanding
bought in by one
seems
is
prietors
self
word
heirs,
life
grantee, and that the warranty was only co-extensive with the
to the
estate to
infra,
"
We
which
it
was annexed,
(S.T
setting
The
other
is,
from denying
its
efficacy.
Neither of these grounds, however, would give to the rebutter or estoppel the high efficacy of actually
transferring
the after-acquired estate.
The
practical difference
effects,
between
man,
said,
tentton that the land, the whole intercst in the land, should
to
Beacham
be conveyed
secondly, that
Beacham
Such
bound
v.
BY
would, at first sight, appear to make little difference whether, as between these parties, the after-acquired
his heirs.
It
it
that prevents
ity
The
him from
setting
it
title
is
claim
under a
disabil-
up.
to be this
would seem
practical difference
to
vested in him,
where by
if
the
action were on the covenant for seizin (if one had accompanied the covenant of warranty), the plaintiff would be en-
titled to
1 It
was
said in a recent
were
first
written,
"
case in
these remarks
Whether a con-
it,
his
use
grant,
to the prejudice of
it
is
in
almost
all
cases
found
in the
language used in the
adjudged cases which relate to the
subject;" Buckingham's Lessee t>.
Hanna, 22 Ohio, (2 Ohio State R.)
v.
M'Carthy
Legget,
Hill,
if
the land
had
r.
Welsh, 1 7 Alabama, 773, "an estoppel could not operate as a con veyance,
or as a medium through which the
title would pass to him in whose favor
v.
the
whom
the estoppel
the
title to
acquired
title, it
would be
difficult to
either to retain
Such a course of
consideration.
treatise,
back upon the covenants in other words, it has virtually the same effect as an injunction restraining him from
Thus in a case in
proceeding at law upon the covenants.
"
on the covenant for seizin in a deed
Maine, in an action
of warranty," the Court below having rejected evidence ofto fall
by the defendant
fered
to
the plaintiff, the valid title had been conveyed to him, it was
argued, in support of the admissibility of the evidence, that
the defendant having afterwards acquired a perfect title to
the land, this
title
plaintiff'
by
made
from that covenant, and that having before the commencement of the action acquired the seizin which it was the ob-
see
how he
To
suit,
full effect to
give, therefore, the
an estoppel,
it
is
clear, that
it
must
law instead of
in
in
question
in
these
cases, in equity,
come
veyance.
1
Supra, p. 81
et seq.
11V
425
nominal damages.
1
Baxter
260.
ney
Bradbury, 20 Maine,
v.
of Tucker
v.
valid
title
which
his
vendors tendered
tiff
diately
the grantee,
title
plaintiff
arising
this position.
'
case cited
last
that
an estoppel to
a party undertaking to convey real
estate, he having nothing in the
estate at the time of the conveyance,
but acquiring a title afterwards by
descent or purchase, does in fact pass
an interest and a
available to himself all the legal consequences resulting from that cove-
nant.
deed, before
the
and,
is
legally creates
assented
instrument
authorities
an
it
be deduced from
that
The ven-
compel him
was dismissed
bill to
the general
all the
principle to
which
his
commencement of
them, then they could set up the outstanding title, deprive the defendant
of his speculation, and throw him
upon the
nominal damages, and in our judgment the evidence was legally admis-
sible."
hand, the
covenants
lots
in
his
deed,
if,
after-
acquired estate operates merely as a personal rebutter, giving to the covenantee a right to come into equity for its
1
conveyance to him, he would have the option of either do-
apparent soundness of principle, that the after acquired title could not, without the consent of the grantee,
great
lief
bill
first
without
Bingham
613
Weiderwax,
In
Comstock,
Woods
v.
belonged
to himself in
in
common
He
defendant.
land,
and
is
bound
a party fraudulently
an
estate to
the vendee
which the
his
this offer
acquired by
in his individual
denying the
for
title, if
to his co-heirs
bill.
entitled
to relief
damages on
his
of law.
l
in
equity, or
to
covenants in a court
by way of estoppel, so as to
a recovery in an action on the covenants
latter
when
doctrine of estoppel,
yield in
we
now
the connection
are
"
The
created
to consider.
It
obligation
2
recent case, " 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 by contract, stand in his stead, and are subwhich accrue to him. It
jected to all the consequences
comes a muniment of
the
take
title
it
is
title,
and
subject to the
all
and
Aikens,
said
389
Douglass
Wark
;
324;
Dudley
nect. 226
185;
r.
v.
v.
Pike
Bank
v.
of Utica
v.
Mcrsereau,
In Dickerson
the legal
title
v.
afterwards acquire
193.
2
be-
it
who
with
"
:
22 Vermont,
The
the
estoppel,
land,
639,
when
was
it
it
runs
title,
Buckingham's
Lessee
v.
428
equitable
to the
land was in
bill
Ramey, setting up
ownership, and that the
against
his equitable
patent to the
was made as
latter
trustee
(the mortgagee of
against the defendant, (the
grantee of Eveland,) and were ad"
this
mitted
the Court.
by the
plaintiff
Ramey)
Upon
by
Ranney,
J.,
who
came
title
in
Indeed,
we
think
it
is
but as
we
ment,
upon
shall
it.
" It
is
universally agreed, that the
subsequently acquired title enures to
the benefit of the grantee by way of
Douglass
v.
p. 427, &c.)
was, consequently, no
it
in
title
remaining
decree
the
mount
equity,
a proceeding to
in
parties,
and by de-
Whether a con-
use
it
Indeed,
it
title
it
If
it
is
BY
in the
grantee,
would
own previous
that
is,
;
429
it
Jackson
avoids
Wal-
v.
place of lands. But for the applicaof this doctrine, the grantor
might, with his subsequently acquired
tion
oust his grantee ; and the moment this was done, the right of the
title,
thus
it.
to
the gran-
Sugden on Vendors,
passes.
'
quire the
to
in
title
cree ?
But
it is,
perhaps, not
parties
passes the title to the grantee, in ordinary cases it is clear there is a limit to
is
"
But
if
the
title
grantor, as soon as
title
to the
....
came
to him, to
his grantee,
claims by an
mount
to
equitable
title
para-
mortgage
plaintiff.
to the
When
the
when
The grantee
with perfect
ability to depend upon it, and of
course perfect ability to prevent a
breach of the covenant, without the
title,
decree,
in
Ramey
tiff,
it
is
430
title.
latter
of
This result, if applied to the case of a bond fide purchaser without notice, cannot harmonize with the spirit of
the registry acts in force in this country, and leads to the
position, which cannot certainly be considered as tenable,
that a purchaser
person
this
against
passed.
either
would be permitted
to disturb
title conveyed to
Ramcy by patent from the government, remained in him in trust for
Kveland
until
it
that
this fact
v.
tlii^
tice,
been
On
the
mortgaged
it
with a covenant
February
following.
On
the
20th
who
lowing.
Thayer continued
in
\
BY
where
it
were limited
in its
431
application
the ground
there
sessed
is
of the
prejudice
subsequent
pur-
chaser.
registry acts
also
urged
Aikens, 25
v.
the
in the
said,
is
the
subsequent
title
acquired
to the ben-
against
acquired title, and the case was decided in favor of the demandant.
guage used
leases (see
infra, p.
by
principle
It
was
case
was in possession,
which might have been enough to
the mortgagor,
is
'
tice.
It
many
cases
is
efit
and
it
is
heirs
his
from
him and
title
claiming
his assignees
but
said that
in
Douglass
v.
Scott,
v.
Patten,
their
registry system,
is
differently consid-
432
would be a
ered.
v.
Vinzant, 15 Geor-
title
Way
istry acts,
dwn was
A year
and every part thereof."
after this deed was executed, the
ground-rent was conveyed to this
This was not, of course,
vendor.
an extinguishment of the groundrent, as the title to the ground and
the rent was never united in the
same person at one time Charnley
;
v.
Hansbury,
State
11.)
16.
Harris, (13
Upon
a sale
Penn.
made
by
made
title
title,
While the
sheets of the
first edi-
by the
tion
in practice
which further
the doctrine
house and
the
illustrates
here referred
to.
lot
inal vendor.
433
BY
He would
no rebutter.
moreover, two classes of cases which appear
to show that the doctrire of estoppel, as applied in many of
There
are,
is
where
it
latter, there
ages after his death, yet that the covenant will estop her.
and those claiming under her, from setting up any claim to>
1
an after-acquired title.
The rule, however, adopted by this
class of cases as to the estoppel of a
i
436
Lessee
Hill's
v.
Massie
v.
Colcord
v.
Swan,
Id. 291
Nash
?;.
was
"
said
in Hill's Lessee
v.
West,
may
why
operate by
way of estoppel,
that
is,
to
takes, in conjunction with her husband, to convey his land with cove-
nants of warranty,
protect
her from
damages
for the
enants
it is
the
sufficient to-
payment
ot
lessor
of the
Mary
AVilcox acquired
plaintiff,
Ilildah
title
and'
to the
plaintiff,
setting
37
up
this
after-acquired
title/*"
434
enactment.
It is believed,
and
so, indeed,
most of the
authorities ad-
in giving to
all the
high operation of an estopan
estate
after-acquired
by mere operation of
pel
passing
it
the
with
law, and connecting
principle of preventing circuity of action, has arisen from a peculiar view which has
been taken of a single section of Littleton, and the commenThe passages retary of Lord Coke upon that section.
In section 446 of Littleton he says,
ferred to are these
" No
a release but the
which the
:
right
right passeth by
For if there
releasor hath at the time of the release made.
be father and son, and the father be disseized, and the son
his father) releaseth by his deed to the disseizor all
(living
i
Jackson
167
Johns.
Vanderheyden, 17
Martin v. Dwelly, 6
v.
marest,
In Wight
Zabriskie,
v.
Shaw,
(N. J.)
541.
Gushing, (Mass.)
was
left
unde-
as
tice.
Code of 1849
shall
operate
by means
into being
v.
in
342
liar wood, 3
heirs to set
up her
title
in the
kind
ch. xii.,)
nois,.
vin
i\
Call,
see supra,
and
Indiana, Michigan,
and MisChau-
BY
435
and
in
him
at that
made
person."
"
an
effect
in
passing an
*
estate.
its
extraordinary effect of actually
If such had really been the case, the
"
a.
toppcl
but
it
is
believed that no
ment or
The
feoffee, lessee,
&c., privies
in
law,
warranty, unaccompanied by a
no
fine,
estate, to
feoff-
b.
The passages
in Littleton
ence
to
based.
that
it
law
one of the
by a single referwhich
principles upon
warranty was
at the present
day,
was one
To
a feoffment, livery of seizin was necesbut livery of seizin could not be given unless the
*er wrongfully.
feoffbr
ment, and indeed always presupposed one, and which, moreover, devested all remainders and interests whatever. 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 declared that his feoffment should pass an estate,
it
Triplett, 1
3 Litt.
Cases.
8
r.
v.
A. K. Marshall, (Ken.)
495.
367
a.
599-611
a,
487
giving
Now
was
made
void.
of a feoffment or
fine.
remainder
existed.
was a
It
estate,
"
"
and
dies,
is
heir
son,
to the land, or
the alienee if
may
ner
it
is,
if
the son
letteth
to the
and
with warranty.
the father, so it
other ancestor.
And
may
as
it is
said of
be said of every
tenant by
tenant by
statute merchant, or tenant by stat-
is
it,
if
elegit,
37*
disseizin."
Litt.
367,
368, &c.
2 See the celebrated
argument of
Mr. Knowler in Doe v. Whitehead, 2
Burrow, 704.
3
make
could not
is
commences by
that
Warranty
it
2 Pres-
Conveyancing, 209.
4 Year
Book, 44 Ass. 35; Co.
Litt. 385 b; Seymor's case, 10 Coke,
97; nor consequently can the mod-
ton's
Corbin
dall
title
Hurd
v.
v.
Arkansas, 225
Missouri, 27
Rector
Den
d.
v.
Waugh,
Roberts
v.
1 7
For-
Snell
life estate,
438
valid that
invalid.
Hence
it
fol-
lows that a grant or a release with warranty, of a defeasible estate, or no estate at all, to one having no
previous interest,
was
as ineffectual as if there
mere deed
to a stranger.
by a
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
it, would rebut the warrantor and his heirs in
same manner as if the supporting estate had been cre-
to support
the
;much
utterly
void.
Of
the
ten
requisites
and
Galbraith,
tlattcr
rights
to ac-
Holland
Rep.
77.
v.
Jackson, J.
"
;
Bridgman's
when
439
the war-
Both of these
case referred
to.
The
estate
If the
wholly inoperative.
1
"
in deed
and bind, these things
are requisite. First, that the person that doth warrant be a person
able.
made by
deed.
some estate
is
annexed
tate as
is
to
able to support
it.
Fifth,
the
common law
to
him
that
made
the warranty.
Sixth, that he that is
heir do continue to be so, and that
title
nor
Tenth, that
be barred by the
warranty be of full age at the time
is
to
of the
2 This line of
argument was adopted by the counsel for the defendant
in the very recent case of Rector y.
Waugh, 17 Missouri, 13, as to which
the Court said, " The strong views
is
to
fall
of the warranty."
Touch-
stone, 186.
440
Such a principle
they subsequently acquire a title to it.
seems to be correct, but it is, with great deference, submitted, that
it
is
in the absolute
in
used,
weight of authority, but the reasoning on which they are founded has
been
insensibly
undermined,
and
which the covenantor should afterwards purchase, was void 2 Sanders on Uses, 83
Preston's note to
;
"A
ton
v.
"
Yelver-
S.
see su-
pra, p. 421.
A
Preston's
Law
Tracts, Tract 2.
3
v.
v.
Wellesley,
to
Archbishop of York, 1
547 Lydc v. Mynn,
&
Craig,
Mylnc
S. C. 4 Si1 Mvlne & Keen, 683
Metcalfe
and therefore
leases,
when-
tin-
lessor's sub,sequently-acqu'nv(l
e>tate
lessee,
It is
many
cases,
441
country a peculiar
this
seems
to
the pur-
As such a covenant
is
American one.
According
to this doctrine,
a deed with a covenant of warranty on this side of the Atlantic may, perhaps, be likened to a deed to lead the future
uses of a fine or a recovery in England.
In
adopted by the
cannot
it
Pennsylvania,
New England
Salkeld, 276
Lower, Pollexfen,
cases proceed
In the
ciple.
66.
Weale v.
But these
;
upon a
first
(N. Y.)
decision
in
Kawlyns' case turned upon the implied covenant for quiet enjoyment,
Secondly, the relation between the
is,
in
every de-
gree, more peculiar than that of vcndor and purchaser. There is always
an understood contract between them
that the lessor
which
will
is
said
that the
doctrine
when a conveyance
Lawrence,
be
conveying an estate
of
is room for the operation
estoppel in its highest function,
! The doctrine held by the
English
there
Courts at the present day on the subof estoppel, will be found Mi-
ject
fra,
p.
447.
It
may perhaps be
442
which he has no
title,
Can
title.
title,
and
if
to
make
it
" In
equity, a grantor conveying land
for which he has no title at the time, shall be considered a
and Yeates.
J.,
should acquire
Ch.
J., in
added
grantee, in
title."
Chew
v.
So, in
title
3
executed in chancery."
So, in a recent case, the same
learned Judge remarked " The covenant went directly to
the land defined by the courses and distances ; and had the
:
Me Williams
v.
Nisly, 2 Serg.
&
2 11
Serg.
&
llawle, 389.
Wri-lit
Nod
v.
v.
Smith
Ch.
Rawle, 515.
1
Vesey, Sen. 409;
Bowley, 3 Simons, 103;
Wright,
v.
Baker,
Kearney,
Young &
Collier's
190; Jones v.
Drury and Walsh, 159
223, supra,
p.
lUwlmin, 24 Georgia,
154, -where this note was cited.
4 Stciner v.
Baughman, 2 Joiu-s,
Gooclson
v.
11.)
108.
BY
fact
equity from the
an
on
that he
for it."
Brown
In
McCormick, however,
v.
was
it
held,
that
"
an after-acquired estate
hy operation of law immediately
2
In Kennedy v. Skeer, there was
to the grantee."
passed
1
6 Watts, 610.
case.
nel,
of
day gave
his
sheriff,
ment
Harvey
eject-
claiming under
against those
and Rogers,
who
J.,
deliv-
The
the
execution
nel,
it
2d of January,
788.
At
that period,
therefore,
But it is alleged,
judgment on which the
William Harvey.
that
the
plaintiffs' claim,
is
first
ately to
Browns
to him.
And
this
pute.
in
When
is
a prin-
admit of
dis-
which he has no
same land, he
will
title
not be per-
the principle
is,
The
But bonds,
to M'Connel.
with a warrant of attorney to confess
judgment, although given to secure
the purchase-money, are but a personal security until judgment entered,
and consequently
after
the
it
operation of
on
91
by Brown
that immediately
2 3
Watts, 98.
444
it
title
from afterwards claiming the land under a subsequentlyBut in McCall v. Coover, 1 the principle
acquired title.
that an after-acquired
State,
the latter.
by the
sequent purchase by
it
was held
plaintiff' in
error relies
that they
were estopped
In the
An
heir
conveyed
and
ties to
But
here,
whom
he
by the conto
M'Connel,
by operation of law,
was said by
the same learned Judge, that ('hew
" must be viewed with refv. Barnet
M'Carty, 10 Watts, 26,
it
Afterwards
claim.
sold,
the
estate
de-
the sheriff's vendee took, to the exclusion of the prior grantee, and it
would
claim,
estoppel.
2
Burnside, J.
445
Judge
that if a
man
sells
and conveys
sheriff's sale.
Shaw
1
2
In
v.
Galbraith,
heirs to the grantee and his heirs and assigns, and the
Court held that although it was a technical rule that a war3
ranty could not enlarge an estate, yet that it might operate
" In
by way of equitable rebutter to avoid circuity of action
:
matters but
this case,
it
little
1 Skinner v.
Starner, 12 Harris,
(24 Pcnn. State R.) 123.
38
2 7
3
Barr, 111.
to p. 437.
446
On
the estate.
estate, or as a transfer of
much
learning in the
books somewhat difficult to understand, but which we are
relieved from
then to
title."
McCracken
194; Jackson
(N. Y.) 622
Wright, 14 Johns.
Bradford, 4 Wend.
v.
v.
Somes
Pickering, (Mass.) 6 1
v.
Nisly, 2 Serg.
The Court
&
v.
;
Skinner, 3
Me Williams
then said
"
Where
there
a warranty in the deed, the warranty will rebut and bar the grantor
is
they
much
principles
mission of
where
veyance
title is effected,
trans-
in cases
all
it
in
quently acquired
some
made
title
passes.
By
is
title
action interposes, and stops the grantor from impeaching a title to the
and
is
not, as
is
This
on
his warranty."
2 " It must be admitted," said the
souri, of
feoffments,
Pennsylvania, and in
all
the
New
BY
447
to
which
this,
man
sells
is
another
title,
to fasten
it
there
is
upon the
he
is
covenant
is
restricted to a
mere war-
from himself,
and
It was contended,
assigns forever.
supra, on the authority of Shaw v. Gal-
deed operated
to pass
the fee
by way of
or and his heirs, and that being inconsistent with the granting part of
the deed, which purports to convey
only a life estate, could not be so
construed
as
to
enlarge
it
into a
fee."
stranger."
l
v.
2 Jones v.
Kearney, 1 Drury &
Warren, 159.
3 See accord. Pierce v.
Emery, 32
N. Hamp. 484.
4
in the
House of Lords,
v.
Carpenter,
232, S. C. 5 Bligh's
should not be here passed by without
448
Property as administered
viz.
The
notice.
in
Lord
the
St.
Law of
in the
title,
it
will
The
in
heiresses
and
and
had vested
Elinor.
Catharine, on her
first
whom Henry
Pal-
mer was
life,
estate in question
three
husband, and
estate in question,
and
and
the estate,
right, title, interest, use, trust, inheritance, property, claim and demand
all
ty,
ried,
one third and Elinor married Henry Palmer (the trustee under Catharine's settlement), and she made no
;
settlement
of
afterwards
died,
of the
seller
The
real
stood thus
the other
Catharine for
interested in her
life
estate in his
by the courtesy, and the fee was vested in the son, subject to the father's
estate.
and
his heirs
and
and wives,
and Henry Palmer, or some or one
of them, were or was seized in fee of
tin- hinds conveyed; and that they,
or some or one of them, had right to
convey, and for quiet enjoyment of
the lands and every part thereof,
against the husbands and wives, and
they, the two husbands
BY
449
But it
be compelled to convey it to the purchaser.
that
this
is
a
seems to have been considered,
personal equity
will
or in equity,
of, in, to
law
or out of the
and
that free
from, or otherwise by the two husbands and wives, and Henry Pal-
mer, their heirs or assigns, indemnified against all grants, estates, &c.
&c. (in very full words), made or to
ment by the surviving trustee (Henry Palmer having died first) under
Catharine's
settlement,
after
her
38 *
wise,
his
and
the
time to consider.
who
advised the
it
on
the principle stated by Sir E. Sugden, the counsel for the appellant.
He stated that the purchaser takes
double
this
The only
dif-
character
held
by Palmer
450
he was wrong
when a
in doing,
con-
may be
consideration of
4,000.
If
ike in-
equal proportions of
three
in
1,333
to be severally paid
each of the said grantors respec-
to
tively.
presumption
is,
proportion only.
for title
each
that
sells
his
the covenants
By
mer appears
his wife,
and
and covenants
for himself
Sir E.
Sugden
were strong
since they went to the
No doubt they
might be considered as leaning to his
side of the question if taken in these
terms, but they must take the whole
it
what he
sells,
and then
the
whole three
The
plain
meaning therefore
was, that Palmer does not here convey the estate which he had as a
Lord Tenterden replied upon presame grounds. The question was, whether the deed operated
as a conveyance by Palmer only of
that in which he was beneficially incisely the
terested, or
of which
He
then stated
how
the considera-
was paid. That, he said, standing alone, would intimate that the
parties meant to convey only what
properly belonged to them, and that
supposition was confirmed by the
tion
covenants.
The form
of the cove-
Palmer looked
only at the right of his wife, and to
what it was lawful for him to convey, and the Court was not bound to
nants showed
that
4-51
proved by extrinsic
evidence, but which was not communicated to the purchaser. If the de-
cision
is
it
He was ignorant of
disregarded.
the settlement by Catharine ; and
her eldest son, one of the cestuis que
trust under it, witnessed the execution of the conveyance to the purchaser by his mother. All the par-
ties to that
limited estate,
as if the fee
them.
The
ever conveys
grounds
for
her
life,
intended to
that
is,
to a
is
not simply
purchaser without
life interest,
question
to
in
purchase.
convey
him
upon.
The Lords
:
1.
4-52
Morse
tion."
as to this doctrine of
said,
veyance
one third
he
to which,
2. That the
shown by the covenants
claimed to be entitled.
intention was
And even
the whole.
if
the cove-
that cause
was de-
was thought
to be impossible
to maintain the decision ; and it was
cided,
it
Parliament to revise
That case
it.
convey
confining
the
covenants
of every
estate
all his
estate
and
in
interest in
him
11 Anstruther, 11.
In Doe d. Hutchinson
v.
in the
Prest-
which he claims,
and the acts of the parties under
whom he claims his share." Accord-
of warranty.
By the death of one
of the latter, the releasor became his
case of
Jones
took
it
Drew
v. Lord Norbury, 3
" that he
Touchc, 284,
be clear that where a per-
& La
to
his estate
and
conveying
interest in
them
all
to
heir,
and conveyed
premises to the
defendants
tiffs
that
who brought
became
plaintiff,
were not
BY
On
Bucknell
V.
Bensley
wards
and Lord
v.
said,
Burdon, argued
3
from the bench, that
were barred by
took
under the
release,"
the
made another
whatever interest
that
viz.,
2 Sim.
&
Stu. 524
&
Barn.
Lloyd
;
Adolph.
upon the
Connor &
273.
See
v.
Lloyd, 4 Drury
Connor
report in the
the more full.
&
first
& War-
Lawson, 598.
of these books
The Chancellor
is
" This
clearly settled
legal estate,
which the
In
acquires."
Lawson, the report is :
subsequently
Sir
v.
in
I think
Bensley
much upon
pel,
the point."
The
Chancellor's recol-
curate as to his
case of Bensley
The
is
effect
party
"
was now
it
lection,
bupra, p. 191.
ren, 369
himself, in
tiffs
who had
St. Leonards,
own
v.
position in the
Burdon, as he
Lord
St.
not operate by
" To
earnestly, as the report of it is,
the extent of securing the annuity,
the deeds of 1803 operate by way of
is
way of estoppel. It
John Leach, in Bens-
in
conveyance of
a conveyance.
this
nature has no
him
And
it
to
execute
is
equally
no
effect
1
estate
itself create
an estoppel,
how
The answer
cited
tate,
into,
to this question
clear, that
at the
may
entered
is
is
by indenture, a
when it
lease
The
and, therefore,
it
come
was necessary to
and this point was
into equity,
treated at the bar as too clear
gument.
wise,
and
My
for ar-
my opinion, that
estoppel
is
as well
Purchase-Deeds,
p. 7, it is said,
"
The
work an
estop-
and release
cannot
operate
will estop
as
conveyance.
by which
He
that assurance
is
made.
on
built
this principle,
is
in perfect
is,
The
dis-
however, very
refined.
i
and
which
after- acquired
to
titles
actually
former conveyance, so as
exclude a subsequent purchaser,
JMUffy
455
able
to
him
to
it
of a warranty
it
chaser
is,
and such an
effect
can
whole of
of
all
faith
his right
and
title to
a tract of land,
if
made
in
good
is
not
interest or estate of
at the time
proceeds upon
view
seized or possessed
is
to pass or bind
an inter-
the parties
is
regulated
If otherwise, and the vendee has
conformity with it.
contracted for a particular estate, or for an estate in fee, he
;
in
Wightman
sissippi, 680.
v.
Reynolds, 24 Mis-
Van
Rensselaer
Howard, 297.
v.
Kearney,
1 1
456
intended to convey, and the grantee expected to become invested with an estate of a particular
description or quality,
title in
legal operation
and
still
the
at least so far as to
that he
was
estop
seized of
of
Doe
210
Scott,
&
Ellis,
son,
Right
Marchant
d.
;
Bowman
278
v.
Errington, 8
Taylor, 2 Ad.
Fairbanks
v. Williamand
(Me.) 96
Bucknell, 2 Barn. & Adolph.
;
Greenleaf,
v.
v.
to
in-
and
fair dealing,
should be for-
forth
he
is
estate the
or,
by necessary im-
where
its
utterance would
convict the party of a previous falsehood, would be the denial of a previous affirmation
upon the
faith
of
It is
son
is,
vent fraud and falsehood, and imposes silence on a party only when
in conscience and honesty he should
not be allowed to speak."
BY
nical
"
upon
it is
the
means by which
strict principle,
meaning,
for
effect itself
457
the effect
is
should not, at
necessarily tends to give to a vendee who has been careenough to buy what the vendor has not got to sell, a
less
in
good faith,
and the inconsistency of the doctrine referred to
with the recording acts in force on this side of the Atlantic
money
ligence,"
often
urged that
in the event of
a failure of
title
or eviction
would otherwise be
entitled
by virtue of
This doctrine
nants to himself.
is
An
found in the very recent case of Temple v. Partridge, 42 Maine, 56, where
of a writ of deceit,)
the plaintiff
in
induced her
him at an under-value.
The defendant had subsequently resold the land at an advanced price
with covenant of warranty, and offerto sell
ed
to
it
her
nants which he had given from showing that they were untrue.
1
to
Duchess of
Supra, p. 430.
In the recent case of Cross v.
Robinson, 21 Connect. 387, where
3
till
" after
title
4,58
no foundation whatever
2
in
yet,
or
authority.
left undecided in a late case in
reason
in
either
one
still
more
it
recent,
was held
that the
Hampshire, where,
case.
New
in a suit
covenants contained in
by
when
his
it is
made
the defendant
his deed.
How
nant 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
The
brance.
is
reconveyed,
defendant had not a
Could
it
had a
title
when he thus
be said,
if
title
when he conveyed
to the plaintiff.
mortgaged the
land,
contained
against
In Lot
v.
Thomas, Pennington,
(N. J.)
incumbrances
True,
he
v.
Sumner
Haynes
82.
9 Metcalf,468.
Barnard, 12 Id. 461.
Stevens, 11 N. Hump,
Seymour,
v.
v.
BY
459
his
1
So, in a recent case in Maine,
charged upon the land."
one sold land with a general covenant of warranty, taking
a mortgage for the purchase-money which contained a simiThe mortgage was subsequently assigned,
lar covenant.
and afterwards foreclosed.. The mortgagee died insolvent,
his widow, who had not joined in the original conveyher dower, which was paid by the owner of
recovered
ance,
the land, who then sued on the covenant in the mortgage.
when
But
that
money
pledged
by
the
As between
conveyance.
title
is
redeemed,
and ceases
it
has discharged
to be operative.
If
it is
is
its
If
office as
foreclosed, the
restored to the
And
Smith
v.
Citing
Maine, 497.
Brown
Citing
Hamp.
28.
Haynes
v.
Stevens, 11 N.
460
covenants therein
made by
would
is
supported both
The
vof evidence" to
Hubbard
v. Norton, 10 Connect.
(but see and consider Cross v.
Robinson, 21 Connect. 387, cited su-
433
Hardy v. Nelson, 27
pra, p. 457)
Brown v. Staples, 28
Maine, 528
Id. 497 Sumner v. Bernard, 12 MetHancock v. Carlcalf, (Mass.) 461
;
ton,
61
Gray, (Mass.)
Lot v.
300
J.)
in
So, "if a
such cases."
warranty."
Bointon
&
&
Chester's
Osborn's case,
and
his wife,
to
main."
So,
of Kellog
v.
was held
Wood, 4
in
the case
Gilman
(Mass.) 330.
v.
Haven, 11 Gushing,
BY
461
Jersey,
somewhat
farther than
veyed 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 agree-
and extent of the payment of the consideration, and therefore came within the doctrine of the American authorities
;
latter
the
Supra, p. 65
Bolles
v.
et seq.
J.) 680.
39*
p re ble
v.
(Mass.) 549.
Baldwin, 6
dishing,
46
as the defendant
to
pay the
taxes.
was
in
But
the law
was more
in
strictly held
an early case in
2
testatrix
Massachusetts, of some apparent hardship.
sold land to one whom she afterwards appointed her exec-
cumbrances.
$1,000
as
in
same premises
title
was paramount
to his
own
and
originally,
that he
in
" to
was, however, held by the Court, that
admit the evidence offered would be to permit him directly
whatever.
It
owner of the
and
his
feated
i
For the
cases
supra, p. 128.
upon
Eveleth
v.
suffers,
BY
it is
his business."
So
in a case in
New
463
mode
of conducting
1
York, it was held
that
The preceding
classes of cases
have
all
title
an action of
elsewhere applied.
In Massachusetts,
4
" the
was, however, said, that
gran
tee may be permitted to show that his grantor was not
"
seized, as is every day allowed in actions of covenant ;
and
it
in
v.
Wainman,
it
was
Davis
Y.) 65
v.
;
Bowne
Sherwood
v.
v.
Vandenburgh,
Hill,
Gardner,
Hamblin
Bank
v.
Maine, 69
Fairfiold,
(Me.)
383
of Cumberland, 19
Stimpson
v.
Thoinastou
'
4<64<
New
In
was followed
in
one
In the recent case, however, of Sparrow v. Kingthe whole doctrine was reconsidered on the grounds
estoppel.
man,
The
ruled.
But
the feoffee.
gain and
The same
two
in
subject
5
was soon
arid the
cases,
re-
v.
Kingman
may now be considered
Sparrow
New
as settled
in
will not
estop the grantor
title,
him. 7
1
from controverting
So
Sherwood
v.
Vandenburgh,
Shoemaker, 3
Hill,
Kingman
v.
Finn
v.
Sleight,
Sparrow, 12 Barb.
S. C. 208.
5 Averill
3 1
v.
a.
Wilson, 4 Barbour's
Of
vendee obtains
an.l
keeps possession
BY
4<65
flats in
to the
flats.
title
the premises, he
valid
title to
is
premises."
The
question
how
far
deed operates as
one which has already been
in a
recital
seems
it
to
have been
recital of title,
covenants for
not fulfilled
as
he
will,
of course,
441.
2 Fitch v.
Baldwin, 17 Johnson,
166; Beebe v. Swartwout, 3 Oilman,
179
Furness v. Williams, 11
(111.)
ment or
Illinois,
Leading Cases.
*
5
229.
Fitch
r.
Supra,
Baldwin, supra.
p.
Young
Bench, 310.
463, note.
v.
Raincock,
Com.
466
ETC.
denied.
Stroughill
781.
Bench R.
v.
Buck, 14 Queen's
Stevenson's Heirs
12 Smedes
&
v.
McReary,
CHAPTER
467
X.
LONG
the
from homage. 1
When it became usual
by
of feoffment, dedi.
and of the
The
effect
been referred
ranties
i
311
9
Supra
;
p. 2
4 Ed.
3 18
I. c. 6.
Ed.
whatsoever
no
sort of
is implied
they bearing
analogy to the original
;
feudal donation.
And
therefore in
Supra, p. 2.
5
Indeed, says Blackstone (2 Comm.
300), "In other forms of alienation,
to add
an express clause of warranty, to
bind the grantor and his heirs, which
is a kind of covenant real, and can
I. c. 1.
such cases
it
became necessary
HOW COVENANTS
468
In
many
cases,
however,
which
in
and
privity of estate
tenure
still
rent,
dedi,
which extended
to the
all
to
Coke, 16,
of the grantor.
No warranty of a freehold was implied from the word concessi ; (Co.
to
384
Litt.
the
life
a,
Butler's
" dedi
et
concessi are
coupled
to-
doni
gether, yet these words, ratione
the
do
warranty
proprii,
appropriate
to dedi only
is
is
rantizo"
2
Co.
amount
implied),
warranty without
it
384 b
Litt.
to
verb
war-
Fitzh.
Nat.
this
a.
and
its
in the
deed doth
S. ami
is
a general war"
of the feollor
exposition in
mon
men at this day," 2
And from the cases
Year Books
in
Institutes,
276.
Spencer's case, 5
life
of C. P.
(Ilil.
469
the
and tvarrantia
The
its
benefit of the
warrantor
effect
2
;
under the
3
But although the
upon an heir unless expressly named.
benefit of the implied warranty descended to an heir, it
that if a
man make
a feoffment by
and with express warranty in the deed, he may use the one
So in
or the other at his election."
Rant v. Cock, Oo.Eliz. 864 Trenchthis
word
dedi,
ard
v.
Johnson
v. Procter, 1 Bulstrode, 3 ;
It
Butler's note to Co. Litt. 384 a.
was
nevertheless held
Welch,
Kent
well
is
life
settled
of the
Co. Litt.
by
v.
in
was restrained by any express covenant for title which the deed might
contain, and the decision was based
upon Nokes's case, and a similar decision was made in Morris v. Harris,
9 Gill, (Md.) 27.
Nokes's case, however, decided that implied covenants
in a leasehold were, as will
be pres-
said "
40
so,
im-
Grannis
36;
v.
Barney
" If a
a.
man
384
b.
" that
though in the
it be
not men-
clause of warranty
470
seems that
1
it
dedi)
it
was
case,
word
HOW COVENANTS
'
feoffee
was implied
2 "
this word excamCoke,
the rule at the
and
such
is
a
doth
bium
warranty,"
imply
3
So also in
unless where altered by statute.
present day,
"
in every exchange,
for," says
the case of a partition, and in both these species of assurance there was not only an implied warranty, but a condi-
tion,
tioned to
whom,
yet
it
shall
be
in-
"
The
benefit of the
whom
named.
allotted.
Grimes
v.
Mr. Hughes, in
his recent
where
lands
have been
statute of 4
&
5 Will.
however, made
some important alterations in the law
The
IV. c. 30,
estates in respect of
taken in
as that statute,
by
spective,
ments of
in Allnatt
reason
in the
first
instance,
is
because the
Barton's
MSS.
Points of Conveyanc-
other portion.
right of re-entry upon the
ever, this difference between the warranty
When
by
and condition
were not
c.
1,
total,
and the
which gave
to
joint tenants
it
tion
made,
shall
it
is
said
(p.
107),
"As
the
their
Miller on
Partition,
245,
passim;
word exchange implies a mutual warranty, it would seem that the usual
Feather
covenants for
title,
quiet enjoyment,
common
said, are
lable to
Of
lied
on
course,
than
implied ones."
common-law
Co.
Bustard's case, 4 Coke, 121
a Allnatt on Partition, 158
;
Litt, 1 74
vendee
Rector
v.
Waugh,
17 Mis-
Allnatt on
Smith
v.
HOW COVENANTS
warranty only
common,
statute.
seem
it
was held
in a
1
Weiser, that where the partition was
by deed, the rights of joint tenants and tenants in common
to a recompense in case of a loss,
depended solely upon the
covenants
it
v.
in law.
common,
created in
5 Watte, 279.
So
in Morris
(Md.) 26,
it
3 10
and see StroWatts, 135
hecker v. Hansel, 5 Penn. Law Jour.
327 Seaton v. Barry, 4 Watts Si
;
Harris, 9 Gill,
was considered that in
v.
common by them
shall not
have the
4<J8
effect
of
the lands
destroying any previous warranty made, securing
to their ancestor, as might, perhaps, he the case, were they
to be considered in the light of tenants in
common
created
by purchase."
As
common
filed
bill
for contribution
it was
thought to be
a personal action of covenant could be
maintained upon a breach of the implied warranty.
remedy
and
in
Weiser
v.
Weiser,'
at least doubtful if
v.
Sawyer
Cator, 8
Humphreys,
actual entry
is
and use
in this State.
The
implied
and
in this State,
lete in
England.
is
has decreed
it.
We,
therefore, think
In
seems to us to be the
most practicable and just mode of
asked, and
it
in a court of
chancery, or
be altogether denied, a
thing that
justice
It
and equity
seems to
cery
the
is
us, that
and
a court of chan-
tition is
to give
peculiarly adapted
which is, upon the princi-
relief,
40*
The
statute,
HOW COVENANTS
It
by very distinguished
were
which
it
covenant, which
lar
there
is
is
where there
here;"
is
no particu-
moreover, when Chief Justice of the Common Pleas, observed in the case of Browning v. Wright: "Now these
indenture."
1
Mann
Clarke
Ward,
v.
2 Atkyns, 228.
v.
Samson,
&
Pull.
Ves. Sen.
100.
3 2
Bos.
"
13.
Buller,
J.,
added
The
"
these expressions,
were
it
c(icla
should be
none of
them were
the Court,
was cited
in
was presented
times, are
said,
covenant
modern
for the purpose of qualifying the general warranty which the old common
observed,
But Nokes's
cov-
Of
Buller.
by Mr. Justice
in support of
them, except
in
Brown
v.
Haywood,
Freeman, 414,
and decided in the negative and in
Spencer's case, 5 Coke, 16, "it was
resolved by Wray, Chief Justice, and
the whole Court, that this word (con-
3 Keble, 617, S. C.
Mr. Evans, in
Covenant, C. 19.
a note to Stat 4 Ed. I. (1 Coll. of
Statutes, 192), observes,
u that
it
is
Raymond, where
it
After
We
are not able to assign a very solid reason for this distinction between the force and effect of the words give
and
'
'
It
grant.'
The
feudal law.
but
cal,
arose from
it is
established operation.
sell,
alien
distinction is
sufficient that
gain,
artificial
it
The
'
bar-
2
The only
implying any covenant whatever in any case.
dictum that appears to oppose the law as now laid down,
is that of Lord Eldon, in the case of
Browning v. Wright,"
and
to
this
singular that a
nence
as
Mr.
J. Buller should
have
stated that the words grant and enfeoff amount to a general warranty
in law,
effect,
operate as a covenant."
1
The dictum
of Lord Eldon in
J., dissenting,
and
by Kennedy,
HOW COVENANTS
4<76
1
given in this country, and it may be safely said that in the
creation or transfer of an estate of freehold, no covenant
even to
On
this
word. 2
Young
v.
Hargrave's AdminisBlack
2), 63
Ohio (Part
trator, 7
v.
v.
title
nant."
of
Doe
rist,
d.
Murphy, (N.
v.-
Hollis, 7 Gill
Rickets
v.
Car.) 346
& Johns.
Dickens,
;
Deakins
33.
2
The
cases of Allen
v.
Co. Litt. 45 b
Andrew's
case,
Sayward,
Rickets v. Dickens, and Deakins v.
Hollis, cited supra, not only deny an
implied warranty to any other words
than dedi, but hold that since the
statute of uses, even that word im-
Roebuck
lies."
v.
Dupuy,
Alabama, 538,
By
& 9
8
" that the word
'
'
grant
undecided.
in a
'
give
or the word
deed executed
after the
first
'
'
'
it
all
On
yielding
the other
Covenant B.
R. 465.
Royer
Some
v.
Ake, 3 Penn.
v.
Gaspard,
Siderfin,
is still
Newton
v.
477
Anon,
Porter
Siderfin,
241, note
inz, 206
arid
447;
Saunders,
kins
in
conclusion,
Burgh,
ingly
kie,
Mills
v.
yan
Auriol, 4 Id. 98
v.
Arthur,
Iggulden
v.
&
Barn.
264
Cress.
Vyv410
Church
Kunckle v.
330
9 Ves.
Id.
Wynick,
ton
May,
Brown, 15
v.
v.
still
18
while
if
opposition to such a
authorities
v.
402
v.
Lev-
Harper
406-431
Id.
Swetnam,
v.
v.
Young,
State
the covenant
is
R.)
merely
in Pennsylvania has
" in all cases
provided that
now pending
or here-
the
force
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,
trators or assigns,
Merrill
Baber
v.
v.
Harris, 9 Adolph.
&
Ellis,
532
Williams v. Burrell, 1 Com.
Frost v. Raymond, 2
Bench, 402
Caines, (N. Y.) 194 Grannis v. Clark,
8
;
in his
10-18,
in opposition to the generally received
p.
502; Tone v.
Brace, 11 Paige, (N. Y.) 569 Sumner v. Williams, 8 Mass. 201 Dex4 Wendell, (N. Y.)
ter
v.
Knapp
his
26
where
it
poll
329
a grantee by deed
Maule v. Weaver,
Barr, (Pa.)
Irish
Jones, (11
v.
Johnston,
282
Missouri, 115.
It
478
thus implied
naiit
HOW COVENANTS
is
had
(Part 2, c. 1, art. 4,
140), declared that " no covenant shall be
translation
seem
to infer that
Statutes
The words
is
"
"
157.
making an assignment is
to put the
bound him-
by express covenants."
So, in
Waldo
"
by a
utes,
lor
But
am
right,
and
leases
to
4<79
where the
the law
lease is
seems to be
by
at least doubtful
mere
power
to
demise,
is
of landlord and
relation
tenant.
three years, and by 2 R. S. 186, 6, no
estate or interest in lands other than
leases for
unless
by
by
tion
seal.
for
Mayor of
New York
by the Chancellor
is the true one, and that there is
nothing in the provision of the Revisi-d
Statutes under examination
struction adopted
Yernam
this decision
y.
Smith,
Smith, 333,
was approved.
Lynch, 5 Barn.
&
J.
Littledalc,
Grannis
v.
Clark,
brewery,
"
and
also
the exclusive and such other privilege as the defendant then enjoyed
lic
Punch
Bowl
his ale
to another,
On
elsewhere.
who bought
amount
to
a covenant except
same
effect are
Howard
And
v.
when
to the
Doolittle,
State R.)
2
1 1 7.
Bandy
v.
Cartwright, 8 Excheq.
480
HOW COVENANTS
1
Thus,
the
let
the
same
to the plaintiff
at a certain
was
evicted
No
liability
on the
arose from
liability
3
landlord
of
and
relation
and
that we
the simple
tenant,
think, is the relation on which the plaintiff has declared.
defendant as
is
here stated.
such
The promise
Granger
v.-
is
laid
Collins,
Mees.
&
AVelsby, 460.
2
That
is
to say, there
must be an
mon
ten agreement
let, followed
by
under it, and the
tenant having been evicted by the
reversioner, sued in assumpsit on a
to
possession taken
enforced, unless some new consideration arise at the time of giving the
Roscorla v. Thomas, 3
warranty
Queen's Bench, 234
Ilogins v.
;
Maeder v. City of
but
Carondelet, 26 Missouri, 115
there was there an express stipulathe late case of
plaintiff,
it
*
contained
conditions
same
court,
the
demise alleged
to
plaintiff
declared in
481
assumpsit, upon a
same
free
the
On
title
plaintiff,
was by
parol,
the
trial, it
appeared
aside if the
Court should be
were
all
is
thus
and,
ment
take.
at
all
to the
term
'
cording to
p. 484,)
ment
lease
is
'
in the
41
equivalent to 'demise' in a
seal (which I am not pre-
under
Bandy
913.
v.
is
granted."
Cartwright, 8 Excheq.
HOW COVENANTS
ported a warranty of
title
in
the
1
estate, as in the case of personal property," though it is at
the same time considered that an agreement that the tenant
demise.
premises
is
In a recent case in Pennsylvania, 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 premises for the payment of the debts of the
estate,
tratrix for
sion.
not having permitted him to enjoy the possesthe plaintiff, but this was
reversed on error, after the case had been twice argued, and
8
it was held that the
plaintiff was entitled to recover.
1
Baxter
v.
Ryerss, 13 JBarbour's
Smith,
Smith, (N.
Ch. J.
years.
sion,
"A
five
and improved
great expense of
money and
labor,
vious.
its
But
at the
4<83
real
covenant in
its strict
sense, while
on the former the tenant recovered damages as a recompense for the term lost, and not another term in its place.
contain,
nants.
enjoyment,
This
his loss.
is
But every
clearly of
opinion that the law of the case, as
well as its merits, is with the plaintiff,
and that
is
not
his
less plain
demand.
the word
is
It
recover
(Jemixi, in
a lease, implies a
and the
made by
parol,
Cro. Eliz.
3V
y.
In the argument of
pra, of Granger
sent
Abr 601;
v.
Collins,
and Mes-
defendant, and
that the
it is somewhat curious
Supreme Court had, at one
fore
would
So in
Wade
Ilalligan, 16 Illinois,
r.
it
was said
possession or enjoyment.
Still
the
law
will
enjoyment of the
2
Supra,
lease."
p. 468.
4 Coke, 81.
HOW COVENANTS
484-
that " the said express covegenerality of the covenant in law, and
was held
it
it
parties, that
it
would seem, can the implied covenant in the creaof a leasehold endure longer than during the continu-
Nor,
tion
it
a tenant for
life
was
it
in
was made
Frontin
to the
329
Schlencker
Merrill
789
y.
v.
Moxsy,
Barn.
&
Stephenson, 5
In other words,
v.
Bing. N. C. 183.
when
Raym.
Frame, 4 Taunton,
Line
effect,
Small, 2 Lord
v.
1419
Cress.
same
a lessor
bility
who
own
and ihe
acts
acts of those
and employs a
it
useless,
and defeat
his intention
by
overriding
it
3 Keble, 304.
a Swan v.
8. C.
also
Searles, Dyer,
Benloe
Cheiny
v.
&
257 a;
Adams
v.
which was
cited
"That
656.
and
Pleas, a decision
and approved
in
law for
ities,
and
ant
but
of
out
estate
granted,
which
clear from
is
is
the
all
lease
is
the author-
it is
Leonard,
Gibney, 6 Bingham,
Dalison, 150
Lurigley,
see
179.
3
Common
"
;
'
in a late case in
Pennsylvania.
more
therefore obviously
We
is
an
think, however,
485
sufficient to say
by husband and
down
wife,
and
it
is
laid
not be extended to
make one do
the
The
think
determined
a,
&
Michaelmas Term, 8
The
lease
Eliz.
that case, as in
in
this,
after the
and be-
life,
The
Justices
it
others, see
160,
Sheppard's Touchstone,
And no
injustice
can be occasioned
'
And,
McClowry
clearness in
from the
v.
he admitted, if
the lease had been by deed poll, instead of
yet
The same
laid
is
down
in
Hyde
v.
The Canons
553, and
Wiseman,
Brownlow,
23,
covenant
where
is
brought against the executor of the husband upon a lease
41*
v.
Croghan,
Grant's
between an ex-
for
lease
the case
of Williams
Burrell.
and
les-
as-
lessor,
On
the
ten-
ant for
486
HOW COVENANTS
It has,
it
will
covenants
broken
after
the
and
that,
being
purported
lease.
the following language "It was admitted, on the argument before us,
strictly
Indeed,
can neither vouch nor bring warrantia chartce, nor use it by way of rebutter, the ordinary
a warranty
annexed
is
made
modes by which
available
when
an estate of freehold of
inheritance, Co. Litt. 389 a; Hob. 3.
It was also admitted on the
part of
to
such
them
amounted to a covenant
in law only and that, being a covenant in law, it would extend no furthat
it
in this case, a
minable with
his
own
life
to
is
the just
and
literal
lessor that
the lessee shall enjoy the land demised during the term mentioned in
the lease
Comyn,
in his Digest,
tit.
Covenant
make a covenant.'
The distinction between
thing,
"
nants,
cove-
distinction (so
of covenants,' says
Litt.
139
'
b,
a covenant
a covenant in law;' or as
it is
put
in
whereas,
was
plaintiff,
it
amounted
construction
an express covenant
487
is
ment which
tion of
estate,
created
as, if
lies
term
is
the
sense and meaning of the words employed by the parties in the deed.
is more
and therefore more
in others,
it is
ex-
some
ment
the
for quiet
'
in
the
covenant
in law.
"
it
must of
cases,
it is
single clause
in others
is
it
parties
is
only to
But, after
meaning
is
to
is
legal consequences
covenant.
Now
it
from an express
is
in
this
sense
'
4*88
HOW COVENANTS
may,
would seem,
it
at his
option, sue at
soon as made.
Courts would, on
this
1
land, the right to take advantage of the implied covenant.
Owing
to a
it is
in the
form of
ter
that,
ities
which
case."
it
appears to us to be a
suffi-
tents
3 In
used
in
cient answer that an implied covenan t, in the sense in which the phrase
And
Browning
r.
Wright, 2 Bos.
&
in
'Yelverton, 175;
is
Hulstmde,
more
full,
3,
In that case,
and
all
489
and covenanted
agreements in
been evicted by
He
also
recital,
to
consider the
in his favor.
judgment as having
amounted to
recital itself
recital in
the
title
ported."
Christine
a proposition which certainly cannot be supHuston, J., took up the same misapprehension in
2
"
Gotwalt, where he held that a recital,
being
part of fifty-eight acres which A. B. granted," amounted to
a covenant for seizin, a decision from which Gibson, C. J.,
v.
16 Ser<r.
&
J.
673.
Ferguson
v.
Dent, 8 Missouri,
490
2
estopped by mere recitals in a deed, and
does not follow that such recitals are covenants, either
strangers,
yet
HOW COVENANTS
it
may be
express or implied."
So,
it
made a
In this connection
important, and
at
may
same time,
the
difficult
title,
questions con-
which
is,
how
far
same conveyance.
because in
many
between
express covenants
implied covenants.
them
ment
It
either
it
Such an arrange-
the acts of
all
and limited
ticularly
1
named person
3
;
and
is
given su-
that,
where the
latter cove-
pra, in the chapters treating of the respcctivo covenants but, as Lord St.
;
this is
manner of
And when
or
all
a
they are incapable of being reconciled with each other,
2
and
of
considerable
for,
importance,
question
perplexity
on the one hand, as has been said, 3 " 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
irresisti-
of absolute covenants,
unless
intention,
of
covenants
shall
be restrained to the
2 "
the particular words used in the instrument before the Court, and the
distinctions will
nice
and
be found to be very
ford
see infra.
Stevenson, 3 Bos.
v. Griffith, 1
Saunders, 59.
in Hesse
&
Pull. 575.
v.
HOW COVENANTS
4*92
Lord
St.
Where
viz.
restrictive
strued as extending to
all
they are
distinct.
Where
Second.
Where
Fourth.
Mr.
two heads
1.
of qualification in the
first
part of a
deed
will
preceding
covenant
general language
nants, 358.
expressed in
on Cove-
Platt
Many of
authorities;
first;
Mr. Dart,
Vendors and
first.
by
appears, be restrained
it
may
be proper here
to notice
that
authorities do not
some of the
proposi-
read in connection
seems
to
be warranted by the
appear
to take any distinction between cases
where a general or unlimited cove-
The
493
case of
is
constantly
the
subject of one covequoted as a leading authority upon
nant being restrained by another, and has been generally
First.
v.
Browning
Wright
In that case,
of these heads.
first
deed purporting
first, a warranty
in
to
2
"and
the
that he had
same
in
a matter of
Thus, in Iggulden
325,
it
or
little
v.
be both ex antecedentibus
and
sequentibus,
ford v. Griffith,
some
May,
Vesey,
ex con-
et
a note
Gains-
to
Saund. 60
a,
where
So it was
Barkley, Douglas, 684.
said by Dallas, Ch. J., in Foord v.
p. 498,
comparatively unimportant."
I had attempted a different
law at present
tionable whether
is
meaning of the
parties,
and
to
con-
would tend
intention
now be
it
adopted, and no further. The proper rule seems to be that which Lord
Mansfield laid
down
in a case
where
Leonards.
&
2 Bos.
Expressed as
Pull. 13.
Williams
v.
Bur-
this
supra, p. 269
parties,
in
rell,
42
to,
also
classi-
is
494
ited covenants,
argued on his
the defendant
HOW COVENANTS
it
was
all
(after premising
that in conveyances of a fee-simple estate, the purchaser
My
be of
little
if this
were general
It
would
It
appears to
general covenant which supersedes them all.'
in such
words
and
of
the
the
context
that
from
deed,
me,
case
we should be
at the
same time
to give a limited
The
'
terms used, to which terms he refers by the words, in man'
for and notwithstanding anything
ner aforesaid,' namely,
to the
done
him
contrary.'
by
'
Then Chief
mon
2
3
Justice of the
Com-
Pleas.
cited,
XL
re-
An
New York
early case in
down, the Court will not be restrained from making their own application
of that principle, because there are
cases in which
it
ap-
The
was seized
was somewhat
v.
Browning
that he had
in fee
lands
the
that
to
good
its
495
similar to
authority.
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 enjoyment,
line
depending upon
and covenant, as
which was ex-
it;
So,
pressly only of the third part."
in a recent case in the Irish Chancery,
v.
Martyn
M'Namara, 4 Drury
& Warren,
estates
to trustees
convey
right
were clear of all incumbrances made
by him, his father or grandfather, and
conveyed
the property was of a given value, followed by a general covenant for good
by
So
vendor.
the
Gervis
in
v.
enjoy
it
ce.s/ui
que
against
vie
died,
evicted,
being
all
judged
words
lessee,
covenant
"and
it
was ad-
that
'
persons.
and the
brought
The
it
against
him,'
all
and
So
so the
covenant
is
not brok-
title,
further assurance.
and
third of these
Sir
E.
Sugden,
"The
first
covenants," said
" are
Chancellor,
but
title,
considered by
title
by the
settlor
and
cove-
was
en."
in
Clanrickard
v.
Sidney,
Whallon
r.
Kauffman, 19 Johns.
97.
496
An
HOW COVENANTS
acres,
is
hereby
hundred
in case
of evic-
from
all or
any part of the granted premises, the
should
not
grantor
only refund a proportional part of the
consideration-money, but should pay the value of the im-
tion
provements,
etc.
right to
broken as
should be
to these parts
five
that
it.
As
the principle has been repeatedly settitle shall not extend to the
quantity
covenants for
hand
are not
game deed,
in relation
to the
same
property, to enter into the usual limited covenants, and yet bind himself
absolutely to pay damages in case the
title to the lands should, from
any
to receive
marriage.
the
The
money
settlor
for the
meant
to
any part
of the decision, the Chancellor say" lam not now to deing expressly,
cide the question as to the legal extent of this covenant."
497
of land conveyed, unless such clearly appear to be the intention, it is difficult to perceive how there could, on this
The case
ground, have been a doubt as to the decision.
Court
without
the
reference
to
was, however, considered by
and
this principle,
it
went no further
said," being
them with
sufficient to connect
limited
this
covenant.
1
Davis
v.
Connect.
Lyman,
In a
done no act
and
were clear of all
warranty, in said assignment mentioned, unto him, the said John Dieter Heller,
able
said
now
latter.
7
Serg.
The
&
case of Miller
v.
Heller,
may be
here noticed.
to his heirs
and
as-
is
the above
any
and
signs forever,
next,
day of April
Mounce
Jones, and
all
and
assigns,
and against
Miller and his heirs and
aforesaid,
said
is
George
assigns, then
Miller
November
and delivered
Jones was
ler assigned
his
estate in
to
the land
bond with
" Where-
described,
did
42*
it
to Heller
but the
bond.
The Court
held,
however,
bond was
evidently limited in
Mounce Jones
its
himself,
application to
and not only
408
HOW COVENANTS
England by Foord
Wilson, where the assignor of a term for years covenanted that he had done no act to incumber
that, not-
Browning
v.
in
v.
withstanding any such act, the lease was a good and suband that he had good right to assign in
sisting one
manner
aforesaid.
plausibility, that
where the
title
it
Notwithstanding
case of a freehold, the purchaser must expect greater security from the covenants, it was clearly held by the Court
that the intention of the parties was too plain to be gotten
"
that the words " and that
over
connected the general
covenant with the preceding limited one, and that the case
v.
Wright, the
time,
this
condition of the
v.
in possession
vember,
1815,
covenant, and
the
term
tiff
paying
the lease
the term
Moore, 592.
499
Stannard
v.
Forbes
The vendor
these.
S. C. should so
eleven years
in
expressed, were respectively
therein
full
in
The
ance.
life,
covenant,
by
the idea of
its
restriction
Nev.
2
Ad.
&
it
S. C. 1
" In
performing this task on
any
much
assistance
may be
cited, as every
instrument varies in some respects
from all others, and must be interto its
own language,
preted according
It should seem that the true grammatical sense of the words employed,
when
must
held,
that these
authorities
comparing the
clause under immediate consideration with all which precedes and follows it, even though not forming
parts of the same sentence, and with
fully
was nevertheless
in
really
conjunctions.
But
in.
v.
Broughton
lenborough
in
Gale
v.
Reed, 8 East,
500
HOW COVENANTS
infer-
legal
that on the other hand, the absurdity of guarding himself from covenanting against any acts but his own,
documents
and
in the
was not
that
came within
the case
the authority of
v.
Browning
Wright.
The
which may be
said to be based
where the
Wright, appear
instrument contains one or more general or unlimited cove-
upon Browning
to decide that
v.
'
'
In Petes
&
and cov-
any
act,
may
enjoy it
Afterwards within
lie,
preceding."
Serjeant Williams, in
Gainsford
v.
Griffiths,
Saunders,
bly, the
same
v.
to
own
his
that
acts
all
the
or
501
each other, and the former will not qualify the latter.
This distinction between the different covenants
briefly
recognized
in
was
"
general covenant against incumbrances,
excepting only a
chief rent."
It
was contended
(partially
on the authority
of Browning v. Wright), that these two last general covenants were restrained
by the former limited ones, but Lord
Ellenborough held that there was no connection whatever
between them.
"If
Wylde,
covenant that
I have a lawful
and that you shall
enjoy notwithstanding any claiming
under me, these are two several cov-
right to grant,
enants,
and the
J.,
first is
general,
and
covenant went
HOW COVENANTS
words as
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
" It is
covenants.
consistent with reason and
good
more
perfectly
sense, that a cautious grantor should stipulate in a
restrained and limited manner for the particular de-
of
scription
title
which he purports
He may
quiet enjoyment.
to
suspect or even
know
that his
title is,
in strictness of law, in
take under
he
may
in case
it
liable to
may
of his
title
to the estate,
some exception
will be effectually
time, or
pending
certain immediately then imor expected events of death, or the like ; but these
cured so as to obviate any risk of
by the happening of
imperfections, though
disturbance to the grantee, could never be cured by any
subsequent event, so as to save the breach of his covenant
for an originally absolute
and
indefeasible
The same
title.
in
it
is,
by
differ-
"
J., in
Bender
v.
Fromberger, 4 Dallas,
603
covenant for quiet enjoyment was all one with the covenant
1
for title, or parcel of that covenant, or in necessary construction to be governed by it otherwise than, as according to the general rules for the construction of deeds, every
that is, according to the intendeed was to be construed,
tion of the parties.
In this decision,
little
stress appears to
have been
laid
on
ing
on the
and
any such should be due ;
that expressio unius est exclusio altcrius, it
maxim
Craig, the vendors covenanted that the premises were free of all incumbrances
created or suffered by them or either of them, and that
v.
and quantity
" It
to
dif-
to
also observed
ered
in sense
in
may
trolled the
a 2
title,
504
HOW COVENANTS
and
if so,
or any
There
any
eviction,
demand
is
to apply the
rated in the
The
first
sponsible to secure its performance by a pecuniary indemnity ; the second, including a warranty against the prior
claims of strangers 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
in
is
It
cannot be
So in a very
the present case."
1
the deed contained a covenant
v.
J., in
of restriction
nexed
collected
to
to
be ex-
Sum-
Vendors,
c. 14,
3,
fully
Sugden on
Platt on Cove-
and compared
in
505
against
of warranty, but the Court conceived that as the two covenants were not connected covenants, of the same import and
fied
by the
other.
same
object, the
any
v.
act
any
estate
the premises,
in
brances by the
seller,
were
and
that
free
from incum-
un-
The
to that of
title
paramount
was strongly urged that this case was identical with Howell v. Richards, as the limited covenants were
those which assured the title, and the absolute one was that
which assured the possession, and that the reasoning of Lord
plaintiff'
the defendant,
it
c.
11,
7,
It would
enants for Title, c. 10.
therefore be a superfluous labor in
this
case to
comment on
43
those nu-
Brod.
Moore, 702.
&
distinctions
Bing. 319;
S.
C. 3
506
HOW COVENANTS
" or
any other person or persons whomsoever." It
1
was, however, held by the Court, that the case was distin-
words,
guishable from Hovvell v. Richards, which, it was said, proceeded mainly upon the exception of a chief rent from the
brances, which
suffered
nantee's disturbance,
were
to stand absolute
to
the cove-
if
quiet enjoyment
and unqualified, that no lawful claim
With respect
persons whomso-
to his disturbance.
"
all
to the generality of the expression,
" that those
" I
said
Ch.
Dallas,
J.,
think,"
ever,"
construed to
must be
mean persons
covenants, that
is,
by
Judge (which Lord St.
to
observed
be
a
has
Leonards
very just one), between the
different natures of the covenants, seems not to have been
distinction taken
observed in Nind
1
that learned
v.
Marshall.
and
Iloomes's Admr., 8
daughter Sophia, and to his grandson John, certain lands, and directed
that if any should die, without issue
v.
testator
sons,
John,
his
vivors.
the testator,
50J
In attentively considering- these two cases, their differIn Hovvell v. Richards, it was by
ence seems to be this.
no means 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 very satisfactory
reasons given in the opinion, that a covenantor might not
the estates
them.
respectively devised to
years after, John sold
Some
the estate devised to him, and Richard and the other children of the
testator joined in the covenants in
the deed as follows " And the said
:
an undivided fourth
v. Hoomes, 1
Grattan, 302,) when
the purchaser filed a bill to restrain
these proceedings, on the ground of
liable
on the coveIt
fully
all
case, the
him and
any
and
his heirs
part thereof, to
assigns forever,
free
was con-
student must be
In
this
careful
of counsel.
60S
HOW COVENANTS
But
Nind
in
v.
Marshall,
if
the
it
might seem on the one
from the use of the words " and all persons
whomsoever," the direct words of connection with the other
limited covenants would have to be disregarded
while on
hand
to be
own
were that
acts, the
all
the covenants
all
per-
was
latter
one of them
to
and
in this
much
dilemma
of the covenantor evidently harmonizes with the rule, and its applicatherefore useless.
It is cer-
last en
upon a party a liability
where there are other expressions
which raise a doubt as to whether
should
was
liberality.
is
referred to
tion
maxim
applied, except
the
if
we can
see a
them from
the other parts of the deed. But it
would be a very dangerous rule if it
were to be applied to every case
where ingenuity can show that l>y
clear intention to restrain
to tho
giving the natural moaning
words of tho general covenant, other
509
1
Raincock, a house, which
had been the property of one Ann Hopley, was, after her
death, sold by her daughter, whose husband covenanted with
Young
v.
default, they, or
one 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
It turned out that the daughter was illegitimate,
request.
It was
and the purchaser was evicted by the rightful heir.
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
words in other parts of the deed
might be rendered nugatory." This
case of Barton v. Fitzgerald, depended, as Lord St. Leonards says
of it, on very particular circumstances. In an assignment of a lease,
reciting the lease to be for the term
that
to incumber,
"
and
also,"
sisting,
except an underlease,
that the lease was sub-
term.
another should
so
long
live,
and,
43*
pro-
recital,
J.,
is
it
in the recital,
for ten years, if
it
"
Le
said
surance.
opinions
it is
It
The
which
was, that the premises were demised
for a term of ten years, and that by
was no mention of
that the lease was
ones.
for
"
510
HOW COVENANTS
defendant, therefore, contended, on the authority of Browning v. Wright and Nind v. Marshall, that the restrictive
first
two covenants
and embodied
in the third
covenants for
title
may
be drawn down in
this
way and
son there
But,
what
rea-
The
estate in question is
is
sold
On such a
by one purporting to represent her as heir.
it would be reasonable to
that
the estate
conveyance,
expect
should be cleared from any charges from Mrs. Hopley
downwards
to the present
purchaser, and, accordingly, the
covenant, as
Ann
effect
contended
for,
by
511
not a breach of the covenant for quiet enthis inconsistency will result from it, that the
Mrs. Hopley,
is
joyment,
covenant for quiet enjoyment will not extend to protect the
purchaser from a disturbance by Peter Hopley but the
covenant for further assurance will
a conveyance from Peter Hopley of
or in case of refusal, entitle
him
entitle the
purchaser to
to
maintain an action
in
from the
where
to the deplaintiff
plaintiff,
became due
to the
was obliged to
plaintiff
the defendant was not in possession of the rents and profits
at that time, the latter contended that the covenant to indem-
was restricted to such time as he should be in possesBut the Court held that the possibility of a re-sale
must have entered into the minds of the parties. On such
sale taking place, it was to be
expected that covenants would
nify
sion.
in
It
indemnify him against any breach of those covenants.
that
the covenant to
was, therefore, held,
indemnify was not
restricted, and judgment was entered for the plaintiff non
obstante veredicto.
i
Cress. 185,
&
on the dissolution of a
HOW COVENANTS
covenant against incumbrances between preceding and subsequent unlimited covenants for seizin
their operation
Peters
State
Grubb,
9 Harris, (21
See supra,
460.
II.)
2 1
3
v.
Penn.
p. 301.
Saunders, 58.
Lord Eldon
Browning v. Wright,)
signor seemed to have
said,
"I not
title,
from me."
'soned case of
8
Mass.
162,
Sumner v. Williams,
members of the
the
Court differed as
and of
warranty; Parker,
J.,
of the deed."
and restrained in
by the whole context
There were special
administrators,
restriction,
restrictive
brances.
connected
in sense
and uncontrolled
and expression,
the
other."
4
3 Bos.
&
Pull. 565.
one by the
513
Lord Alvanley
it
appeared that
irresistibly
make
first
any words
nant to his
own
acts,
of construction in
and
it
was not
itself
called
by
Browning
was of
to
why
are
many reasons
attorney, at the
grantor
clause to restrain
Pur-
tion,
it
was urged
and qualify
and
intended by
title,
and, there-
as
this
all his
deed
containing a
general warranty,
But Walworth, Chan., said, " I think
it very evident from the whole transaction, that
him for a
and much more honest pur-
HOW COVENANTS
an early case in New York, the vendor covenanted that he was well seized of the premises, and had
But
in
good right
to
could, in
grantor
seized,
soil,
when he
and
one
admitted, and
was a
that there
parties,
was
was,
enants.
title
and
v.
2
Horton, the
first
were limited
two covenants,
were unlimited
viz.,
;
the
it
was
the
its
good
last
So, in Milner
for
it
covenant,
it
premises,
said,
all claims and demands whatsoever, as far as the Connecticut and Susquehanna Company
Purchase extends, and is regularly
made " then followed general cove-
himself.
by
am
satisfied, therefore,
for
ance."
1
Cole
203.
not
v.
The
on
this case
quiet
IT.
estate of the
Susquehanna Company
came to, and was vested in the plaindemurrer, was held
tiff, which, on
bad, the Court being clearly of the
opinion that the general covenants
quehanna Company.
a
in practice.
In Phelps
warranted from
M'Clelland's U. 647.
515
qualified
by the
subsequent covenants.
But soon after, this case was overruled by the Court of
1
King's Bench, in Smith v. Compton, where the vendor
sold by virtue of a power, and covenanted that the power
was in full force, and that he had good right to convey,
which was followed by limited covenants against incum-
brances, for
quiet
were
said, that
looking at
it
must,
an absolute covenant for
qualified covenant,
3 Barn.
&
in
title.
Adolph. 189.
years
though
case,
Hesse
without
v.
three
Stevenson,
referring to that
J., thus intro-
Tilghman, Ch.
That
part shall
gain and
fee-simple,
it
in construing
a deed, no
be rejected unless
it
pro-
grantor
is
HOW COVENANTS
516
So, in a recent case in Massachusetts, a vendor covenanted that he was lawfully seized in fee of the premises,
virtue of
by
To
sions.
ranty,
it
warranty.
And
I believe
it
in-
is
special warranty
is
and contradictory
Now,
ranty.
with him.
cial
It
inconsistent with,
to
in this, I
is
is
included
is
tion, in
to
the scrivener,
it
might think
it
necessary to guard
from
incumbrances
all
that
the
it
all
is
special
common
ceive
it is
mon
sense
but such as every man understands, which is not the case with a
sions,
To a common
warranty.
is not very
intelligible that
there should ever be occasion to warspecial
man,
it
is
in fee,' unless
in
without
heirs.
free
estate,
sert
is
It is very
a covenant of
that.
to connect
scriveners
it is
except the
been urged,
warranty
which
It has
said ground-rent.
lu>.
517
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
other covenants.
We
was
it would, unso
There
have
been
was a good
expressed.
doubtedly,
reason, probably, why a distinction was made between the
parties
to limit
all
for if the
plain-
against incumbrances
But such a
brance.
seizin.
Most
was intended.
am, therefore, of
enant."
this case is
to the statute to
which
it
refers (it
44
to in
v.
Hesse
v.
v.
Jackson, 3 Gushing,
Compton.
*
Cornell
(Mass.) 506.
2 This
expression refers to a peculiar view taken of the covenant for
20
et seq.
518
HOW COVENANTS
Third. As, on the one hand, a subsequent limited covenant does not restrain a preceding general covenant, so on
220, the latter leased to the former
latter
if at
certain
rooms
to
Griffith,
and covenanted
be brought by Mr.
suit
the
in
Griffith
be
that they would, during the continuance of the term, do all such acts as
latter
power of attorney
to
commence,
in their
for recovering
damages
performance,
Griffith
indemnifying
own
file
their
cost,
that,
"
assuming the filing such bill to be a
necessary and proper act," the Messrs.
Rigby were bound to do so, and that
amounted
stipulation
to
name
to sue in the
We
The
first
eral,
and extends
to all
is
gen-
necessary
in
bill
when
equity
act
is
They
are not so
but
full effect
may
no more.
It
is
expressly given as
an additional benefit
by the words 'and
lawful.'
It
Mr.
to
also
extends
it
to
Griffith,
shall
all
be
suits,
empowering
name, and at
the
latter
stipulation,
Griffith to sue in his
his
said
judgment of the
Court,
" that
the
suits,'
it
power
'
IH>C-
would not
5l9
the other hand, a preceding- general covenant will not enlarge a subsequent limited covenant.
In an early case,
in fee, that
he had
in the
good power
Crown, notwithstanding any act done by him. The Court
below held that these last words restrained the generality of
but this was reversed on writ of
the first two covenants
to convey,
and
was held
on which
it
Lord Eldon,
"
is this,
in
Where
Crown by
his
own
acts."
same
Thus,
in
land.
Cray ford
v.
Cray ford,
power of conducting a
suit himself,
(o the recited
91
Trenchard
v.
Hoskins, Winch,
R. 62, 65, 203.
S. C. Littleton's
See
1 Siderfin,
328, and
Saun-
ders, 60.
3
J n grants of land
by the Crown,"
says Lord St. Leonards, 2 Sugden on
" it is usual to reserve
Vendors, 535,
HOW COVENANTS
520
fee,
Crown
that there
was of a
was no reversion
all
tinct covenant,
the covenant
struction
The
was
"
;
the same.
some
idea
a highly
occasional unskilfulness of the draughtsman has caused limited and unlimited covenants for title to come, as it were,
into collision with each other.
American authority on
by
the reader.
It is
this subject
owing
to
of
two causes.
In the
first
place,
yearly value of
S.
extend as well to
covenant made, as
thef
time of the
introduction
In
the
of these
second place, in
from
enactment
been
have
covenants
implied by statutory
the use of certain words employed to pass the estate,
and
when thus
all
than another.
of the statute, this has not been the case, and the rules of
construction which have, in such cases, been adopted, will
be presently referred
Covenants
to.
for title
may
in
also be limited
and restrained by
it
is
to
a cotemporaneous sealed
3
where the deed con-
amount he had paid the vendor, the Court held that the
bond was merely a limitation of the amount of damages to
be recovered by the vendee in case of eviction within the
4
three years, and that after the expiration of that time the
1
Infra, p. 537
Brown
v.
et seq.
Brown,
Levinz, 57;
1 Keble, 234.
Black v. Barton, 13 Texas, 82.
That is to say, " in that event
S. C.
3
4
44*
warrantor for more than the purchase-money sfithout interest, whereas the general warranty would hold
him
and
liable
for the
interest."
purchase-money
HOW COVENANTS
would
It
also
seem
amount which
full
that whatever
be the rule
may
Thus
into
to
contrary
the
of
intention
the
parties.
in
title.
Upon
estate
in
an action on the
ment,
getting him
A
1
few years
See as
2 1
"
to this, supra, p.
29.
Cases in Chancery, 15
Freeman,
3
S. C.
173.
Upon
teration only that whereas the covenant was that the plaintiff was lawfully seized, &c., the plaintiff's counsel
nothing
for to
covenant one
is
seized,
is
bill
was
filed to
en-
being that
underit
was
acknowledge
satisfaction
on the judg-
that a like
case to this between Farrar and Farrer was heard and decreed after the
six
months be-
fore.
5
Fielder
Finch, 90.
v.
Studley, Rep.
Temp,
523
join a
nants 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,
words
....
contradicted by
bein
this
in
all
plaintiff';
and the
judgment.
i
Nothing
is
"
And
itself,
and
In a
still
he or
lives,
ment of
263),
was quoted
Common
in
a case in the
(Browning
v.
Wright, 2 Bos.
&
Pull,
legal
effect of
only be col-
same
Stevenson, 3 Bos.
court,
&
(Hesse
Pull. 575,)
made
marriage
to that court to
articles,
correct
is still
and Ser-
clearly admis-
HOW COVENANTS
for quantity.
As, therefore, the descriptive boundaries control the quanit has been
tity,
repeatedly held that the covenants for title
apply to the premises contained within those boundaries, and
not to any enumeration of acres.
Thus, in an early case in
Connecticut,
that the deed granted nothing but the lands lying within
the bounds described, and gave judgment for the defend-
ant
and
in
4
Of course, however, this rule will
has been recognized.
not apply where, on the face of the instrument, it appears
1
ell
Howe
.
v.
v.
Evans,
Gaw,
3 Harris, (15
222; Kruse
v.
Scripps, 11
Illinois,
103.
2
Perkins
287; Large
(Pa.) 488
Webster, 2 N. Hamp.
Penn, 6 Serg. & Rawle,
v.
y.
Gotwalt, 3
Penn. 827, overruling Christine v.
Whitehill, 16 Serg. & Rawle, 112.
3
Snow
r.
Whitehill
v.
Chapman,
Root, (Cou-
Dect.) 528.
4
Mann
Whallon
Davis
13;
Kauffman, 19
Pearson, 4 Johns. 41
101
most of the
senting); Rickets
v.
Dickens,
Mur-
68; Lorick
v.
Hawkins,
Richard-
Quesnell
v.
Woodlief,
v.
Id.
&
Hen.
v.
Dent, 8
525
title
apply to what
ground
conceived to he
is
the
many
cases, that
is
ris v.
Owens,
that
acres
in
others.
is
J.,
dissenting,)
that
the
hundred and
J.,
The
who
" that
the
the
Wardlaw,
opinion,
'<
more
acres,
right,
for the
case that
by Goode's
John R. Morris is to
delivered
(O'Neal!,
grantee's
that there
that claim
equivalent to a declaration
whole appears
to
have been
to cre-
veyed should be
dred acres."
at least
To
two hun-
same
the
effect
Baughman,
2 Jones, (12
One
v.
v.
Penn. State
Chouteau, 13
covenants for
HOW COVENANTS
526
1
Sidney, the deed conveyed the
third parts of certain premises for the life of the grantor, with
covenants with the purchaser and his heirs for perfecting
v.
life of the
So, in
grantor.
part thus conveyed, during the
3
an early case in New York, where a lessee assigned the
" in as
ample a manner to all intents and purposes as
I might or could hold or enjoy the same, and I covenant
lease
lord's
title.
an after-acquired
estate.
way
Johns. 106
The
office
of these covenants,
when they
is
Knickerbacker v. Killmore, 9
and see Calvert v. So-
bright,
Eng.
15
Beavan, 156;
Law &
cannot be understood
to
exceed that
S.
C. 15
p. 532.
Blanchard
Hobart, 278.
2 u
ing, (Mass.) 67
v.
;
Grimes
r.
Redmon,
14
B. Monroe,
interest in
and
to
was of "
Tiffany's Ferry,
all
my
right, title
and
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 Northfield, as the same is now occupied
and improved by me, and I do covenant thaj I am the lawful owner and possessor of the before-granted premises, and
have in me good right, &c., to give, grant and confirm the
" the
beforesame," followed by a general warranty of
it is
ified
by him an exception
as
this
to the general
terms of the warranty, and thus to
free him in such case from the estop-
In
he had
Hurd
v.
Gushing, 7 Pickering,
(Mass.) 169, where a tenant for life
" all his
title and in-
conveyed
right,
"in the land with a covenant
that he was seized in fee, it was held
terest
estate
528
granted premises."
offered as a witness
The grantor
in this
support of the
in
was objected
HOW COVENANTS
conveyance being
in favor of an
title
to,
Allen
v.
Holton, 20 Pickering,
"
The
objection would
be well maintained," said Wilde, J.,
(Mass.) 463.
who
allowed
without
reference
the
to
suffi-
is
The
grantor conveys
his own title only, and all the subsequent covenants have reference to
ciently plain.
though
language of a particular part of it.
Thus a recital or a preamble in a deed
may qualify the generality of the words
the grant,
limited by
4 Cruise's Dig.
The
case of
tit.
32,
Moore
v.
Deed,
c.
23,
8.
Magrath, Cow-
9,
is
and are
That
it.
and
was the
qualified
this
we
think,
mean
land, tenements,
in
Ireland.'
and hereditaments
And
the
Court
held
to include
(which was
situ-
is
in wills, as where, in
one word to
constantly done
Sanders
v.
Betts,
matter.
and
Street, in
Marhlehead, and
all
my
and
right, title
to that parcel
is
may, however, be observed, that inasmuch as all conveyances taking effect under the statute of uses transfer no
It
more than
vendor.
and
Sweet
irresistibly
Brown, 12 Metcalf,
v.
"The warranty
175.
is
of
(Mass.)
the premises which were granted and
conveyed by the deed. But that was
'all
and
my
ate,' etc.
It
and
fully expressed,
and
It
in
must be restricted
interest.
The
cove-
to the estate
and
and
interest conveyed,
is
45
fully
understood
if said title
should
HOW COVENANTS
530
1
"
words,
my
and
six,
flats," it
Jackson
v.
the
and
it is
p.
128,)
of the
mortgage from
to us,
however, that
it is
unnecessary
est
vendor
to except the
Potter
v.
Taylor, 6
of Allen
all
held that the covenants have no application beyond the words of the
K.,
on which
is
eighteen tons.
2 Ilubbard et al. v. Althorp, 3
u The effect
Cushing, (Mass.) 419.
of covenants of warranty," said Dewey, J., who delivered the opinion,
" attached to a
conveyance merely
of the right,
title
and
interest of the
the
grant
title,,
itself.
of the grantor,'
it
may be
is
prem-
this
and
interest in
and
to lots
numbered
'
'
,531
" the
following described land in Colchester,
grant was of
all the land which I own by virtue of a deed, &c., being all
my right and title to the land comprising fifty acres off of
the east of lot No.
in said
7^
town,"
was held
it
that the
Jabez Hatch,
plication."
J. P. Davis,
description
numbered three
conveyed
setting
and
six,
the
forth
lots
and the
In Whiting
(Mass.) 434,
v.
it
So
ap-
Dewey, 15 Pickering,
seems to have been
"
thought that if the words
being all
the same lands which the said Benedict
in lots
the
and
restrictions contained
or
conditions
in
which
do
not,
true, as
It
explanatory
"
the
Mills
v.
Catlin, 22
Vermont,
98.
Upon
deed
is
enants 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 ambiguous, the rule would be in-
ly restricted, but
grantee, and this to prevent an evasion by the grantor by his use of ob-
532
HOW COVENANTS
1
very recent case in England, on a reference to a Mas" as far as in his
ter, it appeared that a testator,
power lay,
or he lawfully might or could," demised part of certain
in a
was
under the covenant, reported that his estate 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
itself,
ing notice that the lessor had no title to grant this lease.
2
If she had, a different consideration would arise ;
and it
Perm. State R.) 106, is to the same
In Cooke v. Founds, 1 Leveffect.
inz, 40, S. C. 1 Keble, 95, the vendor
covenanted that he was seized of a
estate in fee, according to the
indenture made to him by W., of
good
is
absolute,
and
estate,
v.
and see
Sebright, 15 Beavan,
case cited as to
this
is,
p. 526.
this
an
been expressed
p.
128
el
se</.),
in
and by analogy it
the same rule should
(IcIcnsiUrness or indefeasiblencss of
of the
in
title."
Calvert
156,
lease,
583
might then be properly said that she could only take such
her.
as she
title
On
the one
never allowed to
is
he cannot mean
these,
man
to assert that,
is
I should
require either
or
of
some
doubt, upon
authority,
expression
the face of the lease, that there was a defect as to the title.
entitled to
some express
We
for
now
title,
effect
any other
of implied war-
word than
dedi,
ranty
yet such an effect was, in the year 17^7? given to the words
grant, bargain and sell, by the statute of 6 Anne, c. 35?
all
deeds of bar-
courts
amount
chaser's notice
is
entirely immaterial.
133.
1
to,
in all
An act
not deemed
See supra,
so
p.
and
in Kingston-upon-Hull,
rendering
which provided
for a gen-
45*
more complete
of York.
and
for
similar
West Riding
531
gainee,
his
heirs
himself, his
heirs,
HOW COVENANTS
was at the
bargainer, notwithstanding any act done by him,
of
the
seized
of
hereditasuch
time of the execution
deed,
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
thereof against the barexcepted), and for quiet enjoyment
gainor, his heirs and assigns, and all claiming under him,
and also for further assurance thereof to be made by the
him
But
the statute
was of very
probably even
in
19,111.
and
Those
for quiet
enjoyment
manner;
even
to this
limited extent
against
it is
the deed,
535
and
release,
In that
&
erally
Its object
Property
to curtail
the
Sec
the
interesting
evidence
in
507, etc.).
party
but
it
shall not
in
The second
be necessary
any such
to insert
declares that
given.
fices,
barns, stables,
etc., etc., as
well
profits, etc.
for the
pressed to be
made
shall
be ex-
in pursuance of
em-
Column
I.
II.
of the same
The subsequent
stamp duty
sections provide
that in taxing
according to
der
word lands
holds,
shall
corporeal
extend
and
be
that the
to
all
free-
incorporeal
536
HOW COVENANTS
But
the effect intended by Parliament has not been pro" The use of these forms in
preference to the
ordinary instrument of assurance," says a recent text wri-
duced.
"
ter,
chievous
extend
The
to Scotland.
first
COLUMN
conveyance
is
simply
into
men
said (covenantor)
covenants with the said
(covenantee.)
grant."
is
divided
speci-
here given
is
COLUMN
I.
The
"
sched-
1.
II.
And
manner
2.
to
convey the
said
ri^ht
lands
2.
That
any
act,
in
himself
their
Then
these presents.
Dart on
follow similar forms for ex-
duction of
title
deeds,
and
The Revised
Statutes of Virginia
this statute.
247.
Lord
late
severe criticism on
9 Jurist,
Tart
II.
this statute
333, 334.
in
to
the effect
is
clear
is
and
537
given by statute
intelligible
documents
for
to
But although
words of a
many
parts of this
practical importance.
statute of
sell,
be adjudged an express
shall
ple,
freed from
in
administrators
breaches, as
1
if
and
assigns,
may
in
any
action,
assign
3
such covenants were expressly inserted."
The word
to
leases at rack-rent,
or to leases
this section.
the lease."
end
The
it
had,
section
it
is
would be
insensible, as the
limited in application to
538
HOW COVENANTS
It will
Why
this cove-
and
sion.
No
the cove-
all
him.
But
in the
statute, it
first
cove-
The
covenants are restrained to the acts of the grantor.
to whether the latter coveas
would
hence
arise
question
nants restrained the former.
Were
it
to arise
upon express
covenants introduced in a deed, there might, perhaps, be
deeds " whereby any estate of inher-
as appears
construction,
exempt
leases at rack-
rent, &c., to
viso
is,
duced.
therefore,
It
refers,
awkwardly
intro-
however, to the
little
is
copied.
It is,
remarkable, that in
many
been
also inserted,
difficulty in holding-,
539
1
have been already referred to, that the covenant for seizin
stood by itself, an unlimited covenant, and unqualified by
But where
it.
the question
is
upon
employed
The
to.
conveyancing.
of Bender
case
referred
in
v.
Tilghman, Ch.
power, on the ground that such vendors might not be grantors within the
meaning of the
late case of
the
strictly.
no
"
in derogation of
are to be construed
that statutes
common law
Now
effect of
the
warranty
grant, bargain
and
to the words,
sell,"
and
it
may
not unreasonably be said that a statute altering the common law in this
respect should,
when
it is
doubtfully
have heard
it
and in the
Brown, 3 Casey, (27 Penn. State R.) 134, it was
expressly decided that the words
"
"
grant, bargain and sell when used
by executors in a deed conveying
statute
Shontz
v.
no personal undertaking,
for they
are used in the necessary execution
of their trust and are limited by the
occasion."
note
is,
in
some of the
edi-
See supra,
p. 515.
54O
HOW COVENANTS
1
Ewalt, the construction of this statute was carefully con-
sidered,
and
it
was held
that the
first
covenant,
which,
in
standing by
connection with the subsequent one against incumbrances,
which is limited, and, consequently, that none of the coveitself,
our law.
Binney, 98.
The
British statute
makes
and
feasible as to
For
if it
was improper
add the
subsequent words, 'freed from incumbrance done or suffered by him,' these
feasible, it
to
that the
bargainer, notwithstanding
any
act
ple, &c.
to
reason
which
is
attempting
I can conceive no good
why
our
should
legislature
known
freed
men.
It
be acany further warranty, if it was intended by the parties, .it was best to leave them to thr
Anne,
which contains a provision on
the same subject, and was evidently
c.
85,
who framed
in
keeping the
quainted.
usual
As
secret, could
for
manner of expressing
terms."
Had
the case of
it
in plain
Bender
v.
541
divested of
apply
all
it
will
equally
to the
We
lar provisions,
received.
any
implied
4
extend to leases.
Where
a construction.
sented after
this
its
determination,
Voneida, 11
v.
Serg.
&
Whitehill v. Gotwalt,
Rawle, 111
3 Penn. 11. 323
Seitzinger u. WeaIn this last case
ver, 1 Rawle, 377.
;
real
estate.
"It
is
title,
insisted,"
said
unsound
title,
covenant for
sentence
is,
"But
and delivered."
2 4 Com. 474.
certainly
is
an executory contract
46
no objection, on
I see
this
nant of seizin
No
Where
is
of the en-
Funk
the vendee
is
next
this special
cove-
broken by the
exist-
Fart
2,
art.
4,
Stats. 22.
4
Sujtra, p. 478.
140
sealed
is
it
Rev.
HOW COVENANTS
The
Nor do any
seem
title
Maryland,
Florida,
covenants for
to be implied
at
statute
Ohio,
Louisiana,
in
New
by
Jersey,
Carolina,
Georgia,
and Wisconsin.
In Delaware, " an act for acknowledging and recording
of deeds," similar in many of its provisions to the Pennsyl-
vania statute of 171-5? was passed, in the year 174<2, and its
with that statute. 6 The fifth section
Rev.
Rev.
21.
statute.
5.
Another
3 Rickets v.
343
'
Powell
Dickens,
Murphey,
v.
upon;
this statute,
Jeter
v.
shall,
sell,
It
act,
manner
1824, and
the act of
cisions
March
389
Day
v.
The
12, 1831.
under these
de-
statutes while in
Agnew,
Brown, 2
Id.
346
Ohio,
;
Rob-
Neal, 3 Id. 525. The statute of 1815 seems not to have been
inson
v.
Day
p.
v.
Brown, supra.
274 of statute of
S-J
Laws, 222.
54-3
&9 Viet.
c.
119.
33, c. 117.
tit.
"
9.
"
The words
12.
warranty,' in
shall
any deed,
When
the said
covenants,' such covenant shall have the same effect as if
it was
expressed to be by the cove1
'
with general
part of
the granting
be deemed
be a
to
conveyed.'
'
he has good
assigns.
"10. A
in
a deed,
'
right, full
power, and
heirs
will
heirs,
mands
"
of
all
persons whomsoever.
11.
'
grantor,
cially the property hereby conveyed,'
shall have the same effect as if the
of the
quiet possession
shall
have as much
heirs
covenanted
will
heirs
representatives and
and de-
mands of
that
said
land,'
effect as if
the
grantee,
he
his
all
was
HOW COVENANTS
and
statute,
c.
184-5,
24.
was re-enacted
it
Revised Statutes of
in the
it.
was held
that these
act, in-
asmuch
longing,
veyed or intended
grantee,
manner
from
shall
all
'
free
have as much
his
so to be unto the
and
heirs
aforesaid, as
grantor,
"15. A
grantor that he will execute such further assurances of the said lands as
'
coun-
reasonably
quitted, exonerated,
in
assigns,
by the grantee,
by any such
no act to
'
to be, or
will
be,
grantor, his heirs or personal represonS will at any time, upon any rea-
of Virginia, 1849.
1 For the effect of this statute see
Mosely
may be
requisite,' shall
effect as if he
cute, or cause to be
all
such further
acts,
done or executed,
deeds and things,
v.
2 Tit.
18, c. 1,
3 2
<
20.
Alabama, 541.
Gee
v.
common
its letter,
54-5
common
it
created cove-
nants for the party conveying, by mere implication, its tendency might be regarded as somewhat dangerous, and as
calculated to entrap the ignorant and unwary ; and the same
principle
was applied
in
Revised Statutes
of
gave no opinion as
1S40. 3
In a
late
case,
the Court
covenants
the
Clanch
164.
v.
When
McCay,
Allen,
12
Alabama,
said in Andrews v.
8 Id. 928, that " the statute
it is
was made, and the general covenant of warranty (which was also in
the deed) by the eviction under the
sale," it is presumed the Court did
not
mean
to
say that
the implied
" this
was broken as
46*
c.
24,
32.
32.
Chap. 34,
4 Weems v.
McGaughan, 7 Smedes
& Marsh. 427, see also Bush r. Cooper,
26 Mississippi, 599.
5 This is correct
when
applied to
conveyance
Line
v.
law as
hold.
to the
conveyance of a free-
516
HOW COVENANTS
an eviction.
In Missouri, the Revised Statutes of 1S45, 1 declare 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 express covenants on
the part of the grantor for himself and his heirs to the grantee, his heirs and assigns.
First, that the grantor was at 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
the
conveyance."
Page 221.
In the act of 1825, it was declared that " the words grant, bargain
in
and
of, to
this
was
a limited one.
The second of
altered.
The
first
these covenants
is
In a re-
Pennsylvania
distinct and independent.
were
fluous, hut
it
first,
2
it.
super-
which
Of
is in-
the
these,
dependent of,
covenant for further assurance was, at one time, held to be
the only one which could he taken advantage of by an as8
signee of the land, but very recent decisions have gone so
far as to hold that all the covenants thus implied
run with
4
the land to the successive owners thereof.
So
"
in
strained
by express words,
express covenants
of the execution of such conveyance, seized of an indefeasible estate in fee-simple, in the real estate thereby granted.
:
Second, that such real estate was, at the time of the execuof such conveyance, free from incumbrance done or
tion
suffered
Pennsylvania statute.
1 Alexander v.
Schreiber, 10 Missouri, 461.
2 See
ble,
*
and
particularly against a
all titles,
certain
his covenants.
It was,
made
however, held
within the
to
to
mean
to
covenant against
its
ex-
istence.
4
Dickson
Desire, 23 Missouri,
v.
Chambers
Page 204.
v.
v.
Darby,
54*8
by
the grantor
assigns, and
and
may
and
if
declared that " the words, grant, barshall be an express covenant to the grantee,
In Arkansas,
gain, and
his heirs
feasible
sell,
it
is
and assigns, that the grantor is seized of an indeestate in fee-simple, free from incumbrances done or
Brown
r.
Tomlinson, 2 Greene,
Funk
v.
Cresswell, 5
Clarke, 84.
2
Upon the authority of Hesse v.
Stevenson, Gainsforth v. Griffith,
Smith
v.
v.
3
v.
CHAPTER
WHAT COVENANTS FOR
TITLE, ETC.
XI.
TO EXPECT. 1
IT was not until towards the close of the seventeenth
century in England, that with the comparative cessation of
warfare, and the steady improvement and consequent
increase in value of real estate, the law of vendor and purcivil
more
the subject
of transfer,
to
muniments of
it
its
title
consummation of the
a
to
title
clear of defects
title.
In England
it
extent of these
Bing. 491
so
vendee
it is
be
said,
it
an attorney
if
for a
by
incurred,
he
is
responsible
for
covenants to
v.
will
v.
Brown, 15 Ves.
sell
is
in-
Ullithornc,
10
no more,
it is
and
<;i\ s
550
had
to
demand and
receive covenants
those claiming by
title,
TITLE
that
is,
all
all
which
to
comply with
was held
Vendors of
in their
real estate
Those who
First.
own
may be
sell estates
right.
Second.
and the
like.
Third.
&c.
tax-collectors,
covenants for
title
As
classes of vendors.
Vendors who
First.
in their
own
sell estates
and
in the
bosom of it,
in all times
tion in
right.
ries in gremio,
to expect
is
and
conveyance."
l
See supra,
p. 165.
551
in
it all
depends on
own
and
purchaser will be
protected by the vendor's covenants against an act done by
estate
by
his
But
himself.
of those
act,
if
who had
title
common
An
and though
how
far
is
the
it is
fore, not
supported by
being misled by the
whether he
what
directed to ascertaining
is
abstract
is
to a certain
still
his chief
the estate,
and
title.
whether he
shall
extensive.
by covenants more Or
Primd
less
Browning
Pull. 23
v.
anemg, 206-209.
The
following re-
552
TITLE
There
is,
who
as those
lend
money
the
as
against
is
title
persons whomsoever.
all
Where, however,
by purchase,
is,
by way of
mark
his
who purchased
the
himself
estate
well de-
title is
conveyed
and those
sold
by
covenant generally
and
if
the lands
3 Barton's
Calvert
S.
v.
supra, p. 532.
4 In the old case of Pool v.
Pool,
" the
1 Chancery Reports, 1 8,
plain-
tiff
father's
nor as ex-
This court
ecutor, having no assets.
ordered that the said plaintiff' shall
dor, the vendor should further covenant that they are part of the estate
conveyed
to
him by
his vendor."
Lockwood
nect. 384
v.
Lloyd
State R. 262.
'
Sturdevant, 6 Cont;.
Quimby,
5 Ohio
ises
covenant according to
tlu'so
own
553
"
Lord
says
St.
Leonards,
2
tice
purchased the
estate, the
same
covenants for
and on
are extended to
title
1 2
Sugden on Vendors, 453; Dart
on Vendors, 260.
2 This rule has
not, liowever, been
always adopted by the Court of ChanLord Hardwicke once said
cery.
that he had never heard nor did he
know of such a rule " it would be
unreasonable to extend the cove;
nants to the
for they
the benefit of
this
So,
it
is
said,
should be as extensive as in
but
if
any of
veyancing, 72.
4 Hill v.
v.
Seeley,
man
v.
not a covenant.
5
"Al-
p. 325.
running with the land, and extending to the acts of the successive owners of the property, yet practically, he
entitled to no such thing, but must
rest content with the covenants obis
lateral to
In " Humphreys on
seller."
Real Property," a work not more
remarkable for the concise and clear
view of the actual law which it condiate
is
47
tains,
marks
there
"
to
exist,
he re-
The
nants throughout the title, connecting those of the alicnor with those of
the preceding
covenanted.
To
this rule,
last
however,
554.
But
TITLE
be found
will
difficult
give,
to expect,
as,
owing
many
tions of
Whoever
the contracting parties.
acquires land at its full value, expects an equally complete or indefeasible title to
The
it.
notion of
exhausted
would
of long-deceased
strangers,
it
all
assets
is
by any purchaser
to
whom
it
was
and the
in-
purchaser
seller,
is
Under
faults.
the
loss,
under certain
to
him
for
qualifications,
dis-
is a
general
one), imposes an absolute warranty
on a seller, in case of eviction, to be
answered
which is
in
regulated by the
and by subsequent permanent
improvements." Humphreys on Real
chiefly
price,
Property, 77.
1 It was held
by Lord Tenterden
at Nisi Prius,
Bennett
r.
Womack,
&
might exact of
his lessee as to
it,
555
in a
comparatively new counpurchase, lose their application
which
covenants
The
same
might satisfy a purchaser
try.
in England or Massachusetts, might not satisfy a purchaser
where he buys
in
comparative ignorance
title,
and
relies
and between
different States,
2
Court
in
and approved
of Dwight v. Cutler,
Withers
;
Espy
v.
Cresson
seems
was
the
v.
v.
Forster's Executors
v.
Gillam,
Harris, (13 Penn. State R.) 343.
;
title
purchaser
3 Michigan, 577,
title
he knew
infra, p. 558.
3
taking a
deed with a general warranty, forms
not the slightest presumption that the
defective.
cited
229
" General
warranties," said Gibson,
Without insisting
adequate relief.
upon the occasional insolvency of the
vendor, he cannot be compensated
for the increased value of the land,
and
skill,
or
556
and certainly
TITLE
in Philadelphia,
it is
is
nant for
title
In many of the counties, however, it is believed that a purchaser generally expects, and a vendor rarely hesitates to
give a covenant of general warranty, as it seems to be sometimes thought, that if the latter is only willing to covenant
1
his
against
o
own
acts,J
the
in
know
he must
title.
there
is
something
o
3
Supreme Court of the United States, Story,
J.,
as
being
special warranty only,
"a
significant circumstance," in affecting a purchaser with
4
But there would seem to be
notice of a paramount title.
equal reason for the opposite argument that a deed with
that
general warranty was as significant a circumstance
unless there had been something w rong about the title, the
purchaser would not have demanded a general covenant, and
r
his capital
heirs or devisees,
ru--!iiiu;iry to
the acts of
to
last person claiming by purchase in its popular sense ; see supra, p. 552.
Infra, p. 556.
Oliver
Such
v.
Piatt, 3
Howard, 410.
also
tin;
intestate or testator,
thought in
and sometime?,
55J
and given. 1
to
So
in
So
in a late case in
1 Rucker
v.
Lowther, 6 Leigh,
(Va.) 259, where it was said to be
" admitted in the
argument, and
upon an agree-
ment
dor
is
to
lor
be considered as contracting
Lord Eldon,
in
Browning v. Wright,
551, was quoted and con-
supra, p.
trasted with the Virginia practice.
2 Steele v.
Mitchell, Kentucky De-
cisions, 4 7.
is
a conveyance
is
to
"
Where
be made,
for a
and unless
assurance
where
is
in those cases
otherwise provided by
special contract, a general warranty
it
it
Michigan,
was held
that
as
to dictate, that when any person seems to limit his contract in the
seems
sale of lands,
it is
his business to
have
is
as universally
expected. It need
not be observed, that this
opinion
it
to
justice, as well as
the purchaser."
3
Fleming v. Harrison, 2 Bibb, 171;
ized
by the universal
47*
make
a good
title,
or a deed which
Vanada
v. Hopkins, 1 J. J. Marshall,
203 (see Bodley v. M'Cord, 4 Id.
475) Hedges v. Kerr, 4 B. Monroe,
528 Andrews v. Word, 17 Id. 520,
;
558
TITLE
So
in
lawful title"
though
in
" for
Indiana, a bond conditioned
was held
a case
to require a general
in the Circuit
making a
2
warranty, and
al-
that district,
to
make
agreement
convey by
good
and indefeasible inheritance in fee-simple," is not complied
with by the tender of a deed with a general covenant of war" a fair construction of the
ranty merely, but that
language
So, where, in
tract for a
good and
it
sufficient
deed
is
v.
Thompson, 4 B. Monroe,
any
molestation whatever," and the terms
of the agreement would of themselves
have been sufficient to prevail even
against an opposite usage to the con-
joyment,
trary.
l
wight v. Cutler, 3 Michigan,
579, where, after citing the remarks
in the text, supra, the Court added,
" No doubt it is the
general usage in
this State, and probably in most of
covenants for
title."
Clark
v.
Redman,
Blackford,
(Md.) 379.
3
Kirkendale
v.
Mitchell, 3
M'Lean,
146.
4
5
6
"The
ances in
serted
in
this State,
is
made
was held
that a
hond
to
make
" for a
good and perfect
a lawful
title,
559
prevails
the Union, and where the
Owing
to the looseness of
manner
in
which these
articles
similar construction
Clark
v.
Redman,
11 Ohio, 380.
J.,
it."
in Pitcher
t>.
Livingston, 4 Johns. 14,
apply, that it was rare for the
purchaser to investigate the seller's
may
title,
his covenants.
relied
In Gilchrist
v.
upon
Buie,
vendor, said,
5 So in a case in
Massachusetts,
where the agreement was to give a
good and sufficient warranty deed of
the premises, it was held that "the
words 'good and sufficient' relate
it
was
To guard
free
from incumbrance.
560
But
these decisions in
prior and
New York
TITLE
are opposed both to
same
State, based
Robinson,
Ch.
to execute a
J., that an
it
agreement
deed for the premises, did not mean merely a conveyance
good in point of form. That would be a conveyance without substance
but
it
conveyed;
and
in a
It
to
convey a valid
title
both in
sufficient,
which
to the land
4
the covenantor has agreed should be
These
conveyed."
5
principles are sustained by a great weight of authority, and
for,
ment was
though
Swan
it
was said
in that case, as in
ingly quoted by Van Ness, J., in delivering the opinion of the Court, in
Judson v. Wass, 11 Johns. 528.
3
Everson
Kirtland, 4
v.
Paige,
So in Carpenter v. Baily, 1 7
Wendell, (N. Y.) 244 Traver v. I lal;
stead, 23 Id. 66
see
Winne
v.
Rey-
v.
it
Fox,
1
6 Gushing,
(Mass.) 202.
2 Johns. 413.
&
v.
Hamilton,
Id. 4
Col-
Porter
v.
v.
Dole,
New York
in
561
of
the authorities
Parker
v.
authorities in that State have adhered to this course of de11 Id. 549; Little v. Paddleford, 13
N. Ilamp. 1 G7 (settling the doubt sug-
Barrow
Swan
v. Seymour, 21 Id. 480
Drury, 22 Pickering, (Mass.) 488
Mead y. Fox,* 6 Gushing, (Mass.) 202;
Dodd
v.
Brown
318
roe,
v.
Andrews
v.
(Ken.) 520
2 English, (Ark.)
153
Michigan, 575
Cutler, 3
D wight
v.
Clark
v.
v.
the deed
Foard,
Watts
v.
Waddle,
v.
M'Lean, 200;
Smith, 11
199;
Morgan
Brown v. Cannon, 5 Gilman, (111.)
1 74
Cunningham v. Sharp, 1 1
Humphreys, (Tenn.) 120 'Shreck
Illinois,
v.
Pierce, 3
Vardeman
v.
Thayer
In
New
v.
of
Johnson
lier
sufficient
'
a good and
warranty deed,'
will
be un-
"
and when
this
case
dall v.
"I think
it
may be
Parker
v.
covenant
convey lands by warranty deed on a
sale, refers only to the form and suffi-
to
conveyed."
The decisions in
title
question
had also been virtually overruled in
Fletcher v. Button, 4 Comatock, 400.
It is possible that
in
harmony with
of
all
some
TITLE
cases which
seem
to be not
may
be briefly referred
It is
to.
chaser to a
right
is
it
still
clear of defects
title
and incumbrances.
This
is
but which
is
it
Hill
v.
164
653
Burwell
1 7
Ressegieu,
S. C.
Atkins
v.
v.
Barbour's
Bahrett, 19 Id.
Jackson, 5 Selden,
643.
2
all
lot,
"
Barn.
&
was said
in
Marlow
v.
Smith,
Fi>h,
was
said
Vesey
to
Shap-
land
Smith,
t>.
it
doubtful.
is
Brown's Ch. R.
75,
Baron Eyre
(before
whom, while
it
had been
and the
medium through
which the point was to be seen, made
no difference in the end. The Court
thickness of
the
difficulty in flour-
ing
it,
but at
last
Shapland
he
h;i<l
cases,' in
not
1'flt
which
it
v.
Smith,
Hence,
which
exists,
it
563
was not
agreed upon should enter into and form part of the considremarks of the same Judge in Cooper
Denne, 4 Brown's Ch. R. 88 also
v.
reported in
Eldon
Bliss, 11
Lord
Vancouver r.
said
in
also,
"
Vesey, 465, that he recol-
the
title
was good or
not,
and
it
was
more or
and say
less
in
the
difficulty in
title
in another,
it;
title,
enjoy
it
thing
is,
that the
some one
abstract
goes to
purpose of
property
but
it
is
down
much
with so
149.
ject
instance
mischief.
The
is
tion
Ilett was,
since.
It
into this
What
is
state,
the
that
consequence
is
especially in a period,
sons,
when
per-
"
The
the party asking it, but of sound disHence it recretion in the Court.
a completion of the
a
bill to
sale.
it
v.
Damon,
Higginson,
by the Vice-Chancellor to
be a plain and obvious principle, that
a court of equily is not bound to init
said
is
before he can
call for
performance
it
TITLE
on a matter
Kidd, 5 Vesey,
Boghurst, 1 Swanst.
pose of satisfying
of law
647
320
375.
Roake
Prebble
itself
v.
v.
as to fact
title,
its
con-
can
sity to resort to
evidence for
an
on
terfere
to estab-
18 Ve-
sey, 111.
"
is
A marketable
marketable
title in
is
equity
no doubt
in-
and such a
title will
a purcha-
direct
an
of a matter of fact
nor can
it,
with-
it is
to
plication
Atkinson,
doctrine,
As a natural
titles.
alternative
the
9.
entitled to choose
discretion
of the
In illustration of this
Lord Eldon,
in Staplcton v.
Scott, 16
'
It
ble,
attached so
The
law.'
distinction
titles
between
seems pe-
question
bad
is
simply,
llomilly
v.
The law
then, recognizing,
565
plication of a
good
real estate,
it
in
title
couched
in
the
and the
like.
manifest and
The equity
274;
Marshall, 592.
doctrine seems to involve this result,
plaintiff's rights, if
that
no
title will
chaser which
ficulty as to
is
law and
fact, that
on a
re-sale
be unable
ing
These are
settled doctrines of
English
seem to necessarily arise
equity, and
from the
constitution^
able tribunals.
of strictly equit-
lish.
It
any he can
estab-
doubts
made up
for
the
occasion
man
cited at length
late
objections.
docs not
The
refusal to interfere
absolutely repudiate
48
the
The remarks
Texas, 16.
566
practice
TITLE
upon
The
may
incumber the
to
be found
could
to
act
in
a fiduciary or
representative
capacity if they were compellable to enter into covenants of
1
greater scope.
This covenant
words
is
generally expressed in the following
" that
he, the said (trustee) hath not, at any time
heretofore,
The
and
Staines
10
executors
v.
Morris,
& Beames,
Ves.
201
ing,
Hodges
476
Brackenridge v.
Dawson, 7 Indiana, 387 Worthy v.
Johnson, 8 Georgia, 236 Redwine
Aven v.
v.
Brown, 10 Id. 311
;
Beckom,
11
Id.
Chastaine
v.
and
wlu-iv,
trustees of a charity,
it
refused,
on
main.
It
is
that
however,
presumed,
and
this
it has been
recently settled that
cannot be exacted of them; Wor-
v.
has,
the same
done
pi lied
to
manner
Page
v.
as
ho was
Broom,
titlr
to
in
have
Beuvan,
3G.
567
But although
title,
estate or oth-
demanded from
it
purchase-money, at
least in the
"
1
The importance of the words
being party or privy to," is exem-
plified
dleton, 6 Barn.
&
was held that the covenantor having assented to an act which he could
not prevent, was no breach of a
covenant that he had not " permitit
currence
is
is
by
itors,
3
The
Lord Loughborough
still is
that
Leonards,
A bankrupt,"
always made a party to
the conveyance of his estate, to meet
tinues,
"
is
bankrupt
is
generally
title,
made
Where
title.
arise
to enter
lutely given to
title,
same manner as
had he sold the estate while
and the
and in the
he would have done
period,
"
Leonards,
by
to
the
of the estate
sale
covenant
money
is
So even where
be
solvent,"
title.
It
the
seems,
to
abso-
money
is
568
and
TITLE
it
it
It
approbation.
the application of such a rule would be the extent of the
purchaser's liability to see to the application of the purchasecial
money.
is
given over, a purchaser is
not entitled to any covenants for the
residue
title,
wicke in Loyd v.
264, which case
5
a person who only took
coveto
be
required
might
nant, as one who took a large sum.
It
Wakeman
Griffith, 3
is,
Atkyns,
however, criti-
devised to
for
life,
for
remainder
cessively in
tail
remainder to
life,
male.
and
as well
The same
by decree,
of
all
till
the debts
pear who were to join in the conveyance, what was the number, and in
prehended 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 ten-
ants for
same
life
situation as if there
power
had been a
See
also
Page
v.
in
payment of
debts, etc.,
and the
cially entitled
made only by
but
it is
the constant
ested."
que
to
trusts
enter
which
which
is,
in
into
many
Leading Cases
v.
Merryman,
in Equity,)
ami the
The
the
title
from
569
in
where,
a suit
New York
of Nixon
v.
Hyserott, it
was assumed that as a deed without any covenants for the
title was sufficient to
pass the estate to the purchaser, the
latter
was
had no right
said that a
to
demand
power
of attorney to sell
2
;
beneficially interested;
though
under an adverse
as regards claims
title, it is
New York
of Hill
said,
liability (to
to
to
payments
good faith;
to the trustees
1
Rev.
Stats.
made
in
730,
10
were decreed
to
was decided
in
Hyatt
it
paramount
and hence
in the usual
expressed
ties
these covenants,
5 Johnson, 58.
48*
v.
Seeley,
"
authorized,"
and to exe-
A conveyance
good and perfect without either warranty or personal covcipal
by covenants.
or assurance
is
In
Gibson
v.
Van Eps
v.
Colt, 7
Johnson, 390.
Schenectady, 12 Id.
cision in Fuller
v. Hubbard, 6
Cowen,
and Willis v. Aston, 4 Edwards'
Ch. 595, and these cases have been
22,
approved in Connecticut
Johnson, 3 Connect. 592
Mead
Dodd
v.
v.
570
TITLE
in general,
This has
it
seems
to be 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 an authority
to
however, that
consummate the
restricted
is
in
contract.
Where,
terms so express
authority
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 paren autre droit, and bind themselves personally,
ties contract
and
fail
ally responsible,
under
seal.
in the case of
Appleton
v.
to contracts
in England,
where
one
Binks,
having cove4
of the
things, intended as a support
title ;" Osborne v. McMillan, 5 Jones'
See supra,
p.
500.
1
bell,
J. Marshall,
title
we have
seen
well settled
is
pacity as administrators," covenanted that they, administrators as aforesaid, were lawfully seized of the premises, that
they were clear from all incumbrances except a certain mort-
it
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
character in
in-
estate
On
was reduced
1
See
to the
Jones, 3 Barn.
v.
same
&
effect,
Aid. 47
Gouveia, 3 Dowl.
Norton
648.
v.
Herron,
&
Car.
Burrell
v.
Kennedy
Ry. 503
& Payne,
2 8
Mass. 162.
same
effect
5 Mass. 299
59.
Thacher
Forster
v.
v.
Dinsmore,
Fuller, 6 Id.
to be void
TITLE
ineffectual,
capacity,
still
it
be, in sub-
was
to be unsettled.
It
was, more-
was not
and
proceeds of the
gage
own
his
is
The
conveyance.
current
of
a
authorities,
supported by
2
principle.
Shontz
v.
Brown,
Duval
Craig, 2
v.
Stinchfield
v.
134;
Law,
Johnson,
Wheaton, 56
Greenleaf,
Talcott, 5 Day,
v.
Little,
Coe v.
(Me.) 231
v. Haven, 4 ConMitchell
92;
(Conn.)
Belden v. Seymour, 8 Id.
nect. 485
;
24
Whiting
(Mass.) 433
Pewey, 15 Pickering,
Donahoe v. Emory, 9
y.
Osborne
v.
1,
to en-
and by well-established
to enlarge the
sale,
36 Maine, 573
he chose thus
if
is
elaborately
considered; Craddock
Admr.
Stewart's
v.
Thus, where
an administratrix of her deceased
husband conveys the land of the
estate under order of court and cove6
Alabama,
bound
so
title,
77.
although she
is
not
to
Megee
v.
clares
no
his fidu-
Thus
in
Thayer
v.
Wendell,
(inlli-
son, 16, Story, J., held that a covenant by an executor in his " capacity
liability,
and that
573
tax-collectors
and the
like.
from
this class
of vendors.
So
rule applies that the words of the instrument are to be taken most strong-
capacity
where
upon
the
contract.
Day
v.
them
but
to,
responsibility.
So, in
Kentucky, in
when
mit.
the extent of
tent
Coster
Manufacturing Co.
v.
Green's Ch. (N. J.) 467. In" Wilson v. Cochran, 14 N. Hamp. 397,
where a tax
two
effect.
The
distinction
classes of cases
between
these
may, perhaps, be
616
The Monte
;
Friedly
Allegre, 9
v.
Rawle, (Penn.)
Wheaton,
Scheetz, 9 Serg.
156;
Lowden
&
v.
that in the former, although the intention of the covenantor may appli-
Rogers
ally,
v.
Horn,
Wilson
Car.) 361
Hamp. 397.
;
v.
Richardson, (S.
Cochran, 14 N.
5J4<
BY,
CHAPTER
WHO ARE BOUND
BY,
XII.
is
who
place,
nantor
liabilities
herein
also of
the
and the
assignee.
Of
the
The
Covenantor.
liability
of a covenantor
most
its
breach, that
it
has there-
ceding chapters.
l
The
been
liability
created by
cove-
nants for
title
In Eng-
real
and
it
founded on privity of
nature, and the covenantor
is
transitory in
its
made
assets
As
is
this
his
ance to him
is
comparatively a
for the
575
of covenants for
is
the convey-
title in
deemed a material
cir-
cumstance as evidence of
ject
latter
is
onere,
it
is
cum
in Averall
v.
this.
Wade, Lloyd
Thus,
Goold's
man
seized of estates
and B, both
for
the purchaser
and
if
only be subrogated to
cumbrance.
Eddy
v.
of part of an estate, as
if
free
from
Here
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 declaration would throw the incumbrance
tate is free
on the unsettled
estates."
So, in the
case in
acres of land, and the mortgagor conveys one hundred acres thereof to A,
an equitable
lien
v.
Knapp,
6 Paige, 35, it was said, " If a mortgage is a lien upon two hundred
in the
ceedings in partition.
be
first
576
BY,
be served upon
him. But whenever it is founded on privity of estate, as for
example where the plaintiff, as assignee of the land, sues
may
may
upon a covenant which runs with the land, the action is local,
and cannot be sustained unless the land is within the jurisdiction of the Court in which the action is brought.
This
has long been settled law, 1 and in a recent case in Massachusetts where the plaintiff brought an action on a covenant
several
the
be resorted
But
to.
if
has sub-
way
susceptible of application in
by a
raised
acres that
sale of the
one hundred
still
which
And
the balance of
to
warranty
"
;
and
in
Gumming
v.
8 Kelly
(Geo.) 482, these
narks were quoted with approval.
lint the presence of the covenant of
Gumming,
IT)
warranty
and
as
Averall
is,
as has
been before
said,
Wade,
material only by
any case
(Penn.) 266
Notes to Aldrich
v.
if
fifty
tract,
is
carefully considered.
Chitty's Pleading, 270 Mostyn
;
v.
Mass. 331
White
tell,
Sanborn, 6 N.
v.
r.
Haiin, 2 Lit-
Gray, (Mass.)
(Ken.) 262.
Clark v. Scudder,
122.
It
is
title,
may be
pleaded
action
423.
in
Osborne
v.
Atkins, 6 Gray,
liability
5JJ
the defendant,
who had
cumbrances and
sold land with covenants against inof warranty, pleaded his discharge as a
liability
is
actually discharged as
have
may
happened after petithe bankruptcy may be pleaded in bar of the
it
Reed
claim upon the covenants came within that clauSe of the bankrupt law
In
v.
this case,
lish
the
possible
warranty of
Bush
of personal
property were to be deemed claims
within the statute, then every grantee
612.
Mills
tate of the
title in sales
v.
Cooper, 26 Mississippi,
3 Jemison v.
Blowers, 5 Barb. S. C.
(N. Y.) 686; and see the notes to
Cases,
v.
Auriol,
Smith's Leading
578
BY,
Whether
Where an obligation is
it is
expressed.
created by two or more, the general presumption is that it is
1
and words of severance are required in order to con-
terms in which
joint,
covenantor to his
own
acts.
Cove-
nants implied by operation of law, as from the word demiserunt, are co-extensive with the interest granted, that is,
3
if a several interest.
if a
joint estate, and several
joint,
Touchstone,
375
Carleton
Donohoe
lies for
of the covenant by one of the covenantors only, because they are sure-
Comings
Little,
v.'
v.
24
Pickering,
(Mass.) 266, one of two tenants in
common mortgaged
of,
v.
and
But
alone.
sustained.
Where
more
this objection
The
man
jointly,
cannot be
distinction
is
this.
and the
interest
and
is,
conveyed certain land with a covenant " that each for his separate and
undivided share warrants and will
each separately for his own share
defend," it was held proper to sue
the four separately.
3
291,
79
Coleman
v.
Shower,
Mr.
Platt, in
Sherwin,
S. C. 1 Salk. 137.
on Covenants, remarks
that " very few questions have been
agitated whether covenants on the
his
treatise
the language has generally been sufficient to indicate the intention of the
parties, and the nature of the covenant in this respect." The question
may
ticular
is,
But
there was,
it
it
if
would appear,
title in
fine,
a husband and
fine,
with a cove-
may
'
fines,
rule of
law
answer
to
exists
in
S.
although
"
if
she had
ment
and this point was, in the arguin Wotton v. Hele, " agreed
by
all
enants,
in
by them
for title
were held
nants for
title,
2 2 List.
3 3
&
515.
4 William IV.
c. 74.
580
her
may have
estate
BY,
hy a proper
passed
acknowledg
ment.
"
Dominick
Griffin v. Reynolds, 17
v. Michael, 4 Sandford's
Ch. (N. Y.) 424 Carpenter v. Schermerhorn, 2 Barb. Ch. (N. Y.) 314
Kent
be law
and
it is
S.) 611
Harwood, 3
Id.
21
291
Colcord
v. Swan, 7 Mass.
Chambers v. Spence, 5
Watts, (Penn.) 406 ) Whitbeck v.
Cook, 15 Johns. (N. Y.) 546 Nash
;
(see
v.
Aldridge
Burlinson, 3 Blackford,
" She
may be influenced
v.
(Ind.) 201.
band
to
knowing
but she
effect as
its
not
may
And
an alienation
the nature or
covenants contained in
effect of the
it.
know
to hold
be greatly
but
her
to
Call,
tion,
it
effect
Hump.
has
been
v.
Wadloigh
1H; Lowell
u.
frequently
Glinos,
Daniels, 2
6
(
N.
ray,
V,
1)
welly,
effect of
a fine at
common
was
acknowledgments. The
local statutes
effect as to paxtlntj
doctrine held in
ill-Mini;
free-
her as
want of
force
prejudice."
covenant for
dom
may
The rule, therefore, has
never extended to make her liable on
family
wife's
performance of a
Desmarest, 1 ZaSchaffner v.
v.
certainly contrary
by contract
Sumner v. Wentworth, 1 Tyler,
Sawyer v. Little, 4
(Verm.) 43
Vermont, 414 Wadleigh v. Gaines, 6
N. Hamp. 1 7
Fowler v. Shearer,
Den
Grutzmacher,
to the settled principle of the common law, that the wife was incapable
"
of binding herself
Howard, (U.
and
effect generally.
If in
any
States these acknowledgments are endued with this sweeping efficacy, the
Wotton
v.
Hele would
appear to give effect to the wife's covenants for title. The effect of NY1son
v.
Harwood
rffi-rt
" that
no covenant or war-
It
been
mentioned, in
581
and
title,
will leave
him
to his
remedy
somewhat
cess.
3
The purchaser
title.
had, however, in
ally
1849,
514
c.
99,
and
In
Michigan and Missouri.
Delaware, the statute of conveyan-
ana,
may be
Delaware statute
may have meant no more but by
it
is
possible the
49*
lidity,
which seems
most of the
1
Supra
In
to
be denied in
States.
p.
154
et seq.
McKinney
shall
cipally,
amount
Chipman
Connect. 488.
u.
City of Hartford, 21
BY,
the city
Upon reference
to a Master, he reported that the lien was invalid ; whereupon it was urged, on behalf of the city, that if the lien
were void on its face, equity would neither interfere to set it
it.
plaintiffs,
700
of a deed.
a lien upon the property of the plaintills; it insisted upon the lien, and
..Aside
tins cloud cleared away.
from any discovery sought, this bill
the
l>ut
is not merely
<]nin (iinct,
claim of the defendants is working a
.
583
prior vendor of
set
up a
claim by reason of the defective probate of that deed, had purchased the claim for a nominal consideration, and had brought
red to the
of the stipulated price to the plaintiffs, by reason of the cloud upon their
their
2 Story's Eq.
700.
In the
case of Simpson v. Lord Howden, 3
Mylne & Craig, 99, an action at law
title
defendants
lien,
and yet
enforce
tiffs
still
it.
to the
insisted
instituted
They have
upon their
no means to
left
the plain-
expense of determining
way, and by
exists,
the
never been
no just occasion
court of equity.
is,
an expensive and
is
the very
reason
why
relief.
If the defendants
had demur-
title
by conveying
bill at first,
acknowledging
want of a lien, their defence
would have appeared better."
In
answer to the objection that the plaintiffs had a
remedy, at law, against
their purchasers, it was said, that
apart from the ground, that such an
one to the jurisdicmade at an
earlier stage, yet that it had no foun-
objection, being
tion,
against
"
Besides, the
had no remedy,
these
defendants.
at
We
law,
are
in
plaintiffs,
had no
interest
protect,
it
was
said,
own
that
the land
although
itself, still
584
BY,
it
was held
for.
prayed
was
New
2
Hampshire, 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
In a recent case in
which sought
to
could be sustained.
311.
immediate vendor, as to which, however, the law has long been well settled, see supra, p. 357,
"
said, in
conclusion,
satisfied, that in case
owner should
ground of mistake
We
mistake.
are well
the
present
he would
In Taylor
v.
Gilman, 25
by a covenantor
to restrain
covenantee from suing on the covenants for title, not on the ground of
removed."
Bush
v.
his
agreement between
and himself; see suSee as to the reforma-
tion to a distinct
the covenantor
pra, p. 130.
248.
covenants for
supra, p. 129.
Brooks
v.
Fowle, 14 N. Hamp.
whom
against
585
title
of his vendee,
could
avail
himself of any
execution
before the
issued, the
complete relief.
But a court of equity will not draw to itself a jurisdiction of which courts of law have cognizance, unless there
be some mistake, accident or fraud, which would deprive the
party of a defence in that tribunal ; and in a recent case in
Wisconsin, a vendor who had sold land with covenants for
against his vendee, (who had sued him upon
covenants,) and the heirs of a prior vendor of the
title, filed
those
bill
land, alleging the loss of the deed from that vendor, and
praying that the latter might be perpetually enjoined from
that the purchaser be
setting up any title to the premises
But
this bill
was
Huntingdon
v.
it
against con
586
BY,
Second.
Of
the Heir.
The
liability
(whether immedi-
ate or ultimate) of the heir by reason of his ancestor's covenants for title, depends, in this country, to a great extent,
liability,
there
now no
is
pay-
difference either in
England or
here,
and any other specialty conThe examination of this subject strictly forms no
tracts.
for title
In order to fasten a
requisites necessary at
pressly
1
named
v.
Rogers
a.
on an
heir, there
law.
him
were two
as heir,
it
Chandler,
In the recent
Cross,
(Wise.) 34.
2 Co. Litt. 209
case of Rufner
liability
common
nant would
lie
against the covenantors themselves. The covenant,
it was said,
exempted the grantors
help the
plaintiff.
The presumption
come personally
were willing
to charge their estates in the hands
of their legal representatives, and
that the grantee preferred to accept
that
parties that the grantors should warrant and defend the title, and that a
of the
from
It
title
until
none
it
at
587
it was
necessary that the heir should have assets by
descent sufficient to meet the demand, and he was bound by
place,
yet after the death of the debtor, an action would lie against
the heir upon the specialty debts, by means of which all
4
the assets by descent were liable to be taken in execution.
which being done, the action
might be brought against the grantors,
and breaches assigned on the cove-
p. 129),
nant.
pi.
not be
made
estate
to pay, out of
it,
could
dama-
by a breach of their
father's covenants for title, and the
law was held the same way in Urqu-
ges
caused
hart
v.
See
also
and supra,
p.
395
et seq.
v.
in Virginia,
Lord Baltimore,
Vesey, Sen.
is
532,
13
4 Sir
12 a
Edward
Wm.
Davy
I. c.
18.
3 Coke,
Pepys, Plowden, 441.
Harbert's case
v.
588
The
BY,
result
debtor's death, a greater security than the judgment creditor ; for the latter, by reason of his judgment, charged the
No
of the creditor
was by
scire facias^ to
West-
statute of
as the death
of the ancestor did not alter the nature of the execution any
more than it did the nature of the debt,2 while on the bond
debts, the creditor could, at his election,
all
by a
judg-
special
the heir.
Nor was
common
there, at
come
nor,
upon the assets as a specality creditor
other specialconsequently, between covenants for title and
to
v. Rivitt,
in
W.
Stileman
v.
Ashdown,
Bowyer
Jones, 87.
2 Atkyns,
608.
Plumer
E. 8
v.
Quarles
2,
Capell, Benloe, 96
Dyer, 204 b.
* Gallon v.
Hancock, 2 Atkyns,
426
Davy u. Pepys, Plowden, 441
S. C. 2
Quarles
v.
Churchman,
v.
Burr,
ing, Willes,
8 Brooke's
Marchant,
v.
585
Wms. 131
Ves. & Beames,
1
P.
Benson
Musson
197
v.
Benson,
v.
May,
Jenkins
v.
Bry-
603
Watson
Frazerv. Tunis,
ant, 6 Simons,
v.
Par-
ties,
nor was
it
589
was hroken
amount
remedy.
The
was no doubt
in-
tended to remedy
nants, as the
many
fifth section
Cruise,
"
66
creditor.
v.
Roe,
2 Dickens,
nant for
seizin,
and
in
Parker
v.
Eq. Ca. Ab. 460, and Fergus v. Gore, 1 Schoales & Lefroy, 107,
to a covenant against incurnbrances.
Harvey,
v.
Slier-
title.
50
&
all
2 Cox v.
King, 9 Bcavan, 533
Hervey v. Audland, 14 Simons, 531
Lomas r. Wright, 2 Mylne & Keen,
769 Eardley v. Owen, 10 Bcavan,
;
572,
Davy
4 3
and 4
Will.
& Mary,
c. 14.
hands of the
que
trust
But that
heir.
any
cestui
descent,
and
be taken
to
be
assets by
by reason
and amply as
590
But however
BY,
this section
may have
that
its
For, in the
that purpose.
1
a specialty creditor,
first
seems
it
of
place, the cases
Wilson
V.
Briant, though based upon another section of this statute, to be presently referred to, held
v.
scended.
manner
work on Covenants,
"
Mr. Baron
p.
Platt,
in
his
^51, remarks,
cannot,
it is
apprehended, be defeated
by
to the
commencement
legal proceedings
for
itself,
if
un-
it is
made
at
or pending
of,
a covenant
although
broken
compensation be
a 3
3 It
cestor."
l
East, 128.
try,
shall be dis-
charged before
it,"
on such pretences.
591
it is
troduced,
1
statute,
in
&
"
" or
is inserted,
perform the covenants,"
pay the debts
"
" debt or
and the word " covenants
is introduced after
to
"
debts
The
wherever
it
occurs.
covenant
no
is
upon
does not become one after
and
as in
England the
lien
case no action
life,
so
it
brought
is
1 1
William IV. c. 47, often called
Sir E. Sugden's Act.
2 These statutes will be found in
if
in the
liable,
note to Silk
Prime, 2 Leading
" Neither debts
Cases in Equity
in
which
the heirs are
by specialty
bound, nor simple contract debts,
v.
&
4 William IV.
c.
mains personally
Richardson
123
v.
liable, to
Horton,
Mylne &
Pimm
Beavan, 112,
the extent
Sugden
Spackman v.
;
heir or devisee.
of an infant heir-at-law."
(i/f/ra, p.
Notwithstanding the
existence of such debts, the debtor
himself
may
alienate
thf3
land.
By
may
payment out of
the descended or devised real estate
contract,
in the
see
it
Isall
v. Isall, 7
articles
Pimm
r.
BY,
and
if the
lands have
hut
all,
liable
to
statute,
may
sue the
it
may
estate,
By
his death,
is
quality
life.
which descends
lien
however, their
his real
upon
But although
application
States.
By
might sue
this
is
it
many
States,
and
in
them
inal liability to
ancestor.
i
63
Watkins
4 Kent's
Gore
Richard
S.)
v.
Holman, 16 Peters,
Comm.424
2 Hilliard's
Ci-ailY. Smith,
v.
;
Williams, 7
Griswold
v.
Webber
v. Webber, 6
Grecn(Me.) 136 Ilutchinson v. Stiles,
3 N. Hamp. 404
Roc t. Swezey, 10
Barb. S. C. (N. Y.)247; Stuart v.
Kissam, 11 Id. 271; (sn- Ilaynes*.
Colvin, 19 Ohio, 396 ;) Boyd v. Ann-
leaf,
v.
59
Abr. 539.
a
(Penn.) 244
Morris's Lessee
Smith,! Yeates,
however,
my
593
this interest-
and
common
it
may
laxv,
formation
may be
strong,
in
Boyd
v.
covenant for title, the plaintiff was nonsuited on the ground that
cestor's
Ch.
J.,
Rawle,
The remark
of Gibson,
in Fritz v. Evans, 13 Serg. &
that " in
ministrator.
14,
Pennsylvania,
thus
made
assets in the
hands of the
liability,
in
In many States,
widely different.
the land can be summarily taken in
be
its alteration.
original grounds,
claim on
its
Murphy's Appeal,
v.
cumbered
gave place,
when a new
state
of
an immunity of real
estate,
which
protected the purchaser at the expense of the creditor, and the legislative
very
and
that
made
payment of
sim-
Craft,
Bcnncr v.
Serg. 4G5
Phillips, 19 Id. 13 Keenan v. Gibson,
9 Barr, 250,) but has since been alter-
it,
law
7
in
Pennsylvania, (Payne
Watts
&
r.
"
by
is
scire facias
now
representative, will, in
directed to
some
50*
cases,
claims of creditors."
Of
BY,
Much
the Devisee.
Amer-
bility
no better position
Mor-
in Pennsylvania, in
ris's
Lessee
v.
is,
in
that
creditors of
had expired
M'Lellan
Conference Hep. 479 Jones
Brodie, 3 Murphey, 594
Rayner
that
time
v. Hill,
v.
v.
in
Godley
v.
But
general,
ear-
559
Watkins
(U. S.)
Holman, 14 Peters,
63; Bergin v. McFarland, 6
>;.
c.
expressly
declared that lands, &c., in all the
American colonies, should be assets
7,
year 1 705, to
which a reference may be found in
the note to 1 Smith's Laws, 9, and the
Appendix
to
762,
J., in
Watts, 81.
Bellas
v.
McCarthy, 10
and it
was held that he was not that the
legislature could not have meant to
;
fuluro, and which could not be enforced until it did arise or accrue.
In connection with
case of Booth
v.
Starr, 5
Day, (Con-
years
before his death, had conveyed land
with covenant of warranty, was
represented to be insolvent by his
administrators, and commissioners
were appointed by the Court to reeei\e the claims of creditors, which
were-
to
months.
be
The
595
the devisee.
payment of
made
"My
who
and as
was within no saving, therefore it
barred.
exists,
must
The
claim, therefore, if
it
is
it
also
contest
it.
any
ble, in
scent.
lia-
is
no estate or
may be
difficult."
the
it
sary.
that
reach
not
to
The very
testate's heir.
or
But
all
in-
The
if
it,
statute of Connecticut, he
tor
bond
to
for the
amount of
personal.
is
not to
to
the
fulfilled
and
bond for the
bond or secu-
rity for
from the
such creditors
heirs, the
is
required
property which
the law intended to guard and preserve for the heir's benefit, may be
filed in the
ceived the surplus estate of the covenantor. To this, in her hands, the
heirs at
common
596
in his hands.
BY,
heir
ancestor's covenants,
was
to
It will
when named
amount of
liable to the
in his
the assets
would be
liable if
not aliened.
To
reciting that
many
persons,
after
declared that
all wills,
was evicted
covenantee who
the estate of his covenantor was distributed after the usual proceedings
and limitations of time for the exhibition of claims, raised
an adminis-
ment of
and no
the administrator,
sale, it
was held
tinued
it
did,
alienation
affect
it
in
any way.
From
a defect
however,
to
recover in ejectment,
1 Plunkett v.
Penson, 2 Atkyns,
204 Plasket v. Beeby, 4 East, 491.
Supra,
the.
23^4
p.
William
589.
& Mary,
c.
14
597
jointly,
same man-
liable in the
But
in
Wilson
v.
Knubley, although
it
was
said
by Lord
Ellenborough
the statute would have led one
to
given for the defendant, though it was agreed that the case
came within the mischief intended to be remedied by the
come
The
statute.
in
it
that a
it
lie
&
7 East,
amended
3
134.
r.
Sheldrake,
Hunting
Welsby, 256.
Mees.
839.
in these deficiencies
Farley
v.
Briant, 3 Ad.
&
by
Ell.
Geo. IV.
of 1 Will. IV.
c. 4<7,
BY,
47,
Tucker,
v.
the question
testator cove-
ment of his debts. After the death of the lessor the lessee
was evicted, and brought his action against the executors of
who having pleaded plene administravit, the plaintook judgment of assets quando acciderunt, and had his
damages assessed upon writ of inquiry, and then filed a bill
the lessor,
tiff
Wilson
the decisions in
v.
the absence of authority, strongly to lean against that construction of the will which would exclude .the claim in ques-
He
tion.
made
at the bar,
An enactment
Wilson
cision in
2
y.
Knubley.
statutes
may be had
in the notes to
Morton, 2 Saunders, 8 a,
and in those to Silk i>. Prime, 2 Leading Cases in Equity.
Jefferson
3 5
4
v.
Hare,
As
liriant,
testator
79.
also the
(j
case of Jenkins
Simons,
granted
an
v.
where the
annuity, and
603,
to
pay
it
Farley
v.
Briant.
It
was, therefore,
it
could not
TITLE.
599
though the
will so as to
by
title
He
make
nothing.
by the authority of the Earl of
Bath
v.
2
ford, and also by that of Lomas v. Wright, where ViceChancellor Leach had held, that persons entitled to damages
1
come
to
under direction
the
in as creditors
case
was
in
Of
the
their eviction.
The
Executor or Administrator.
lia-
former.
p. 589,
2 2
3
The
775.
the
lia-
ment of
note,
to
the
* "
debts.
And
therefore
if
man
bind
however, being
volunteers (claiming under a volun-
tary settlement for illegitimate children, see supra, p. 159), were held
not entitled to compete with simple
thing,
plaintiffs,
his executors
be sued and
may
sideration, but, as against the devisees of the debtor, they were held
for forth
may be charged
as
"
were named
Touchstone, 482 Brooke's Abr., Covenant, pi. 12; Wentwortli's Execu-
tor, c.
as if they
Nor
is
600
BY,
bility
executor confined,
seem
to
to pay
imply, to mere obligations
"
money, but it extends to any obli-
Pull.
covenant or
gation, contract, debt,
other duty," Wheatley v. Lane, 1
Mees.
&
and Wentworth
Ellis, 42.
It
is
sufficient to
say
it is
said to
of a warranty entered
death,
covenantor
485, note.
who had
Clure
tors shall
lifetime
cases of
257
a,
Proctor
low, 214,
C56, and
v.
v.
to
be excluded."
The
however, was argued and decided upon other grounds, and Tin-
case,
dal,
Ch.
J.,
said,
"
Upon
principle
an ex-
this
v.
"
Gamble,
3 Casey, (27
Penn.
ranty
The
Stranslmn, Dyer,
but the heir only. It is thought because the </raiitor expressly included
his heirs in the covenant, he has im-
of the testator.
Swan
were intended
Johnson, 2 Brown-
Adams r. Cibney,
Andrew v. Pierce, 1
(>
Jin;/.
Bos.
&
601
vendor,
who
has, therefore,
quent purchaser.
ity
may
arise
no estate
to transfer to a subse-
But
where
and the covenants are then held binding upon the assignee
of the reversion.
it
is
Williams
common law
v.
And
Burrell, 1
the heir
is
In
Hovey v. Newton,
it
1 1
Pick-
damages
for a
tate, for
swerable."
that, in the
And
it
is
well
settled
to the contrary, a
certain
covenant
for quiet
sum
of
pay a
money, which though
his executor.
Where, however,
if
case of Collins
v.
and showed
at the trial
breach complained
of,
been applied
to
the
of
ridge
v.
See
covenant.
Wyse v. Snow, 5
Irish Jur.
Me Kane,
87
also
Wild-
Molloy, 122.
named in it Doughty
not
poses, from
51
recent
the
in
Crouch, 13 Queen's
v.
Bowman,
In the re-
602
BY,
liabilities,
we
next approach
First.
the Covenantee.
Of
As
they are made, it follows that immediately upon the execution of the deed which purports to convey the estate, a
right of action upon these covenants enures to the party who
visited
It
lapse
of
twenty years from the execution of the deed, the commonlaw presumption that these covenants had been satisfied or
released
would
arise,
even
if
4
With reenactment upon the subject.
for
to
the
covenants
quiet enjoyment, for
spect, however,
any
local statutory
New York
of
Buck
v.
accord
such a defence,
390
bers
for
in
Sec
sujirn, p.
342
et seq.
Jenkins
Hopkins, 9 Pickering, (Mass.) 544,
;
Clark
120,
v.
Rev.
Stats, of Massachusetts, c.
7; Bird
v.
Smith, 3 English,
Cham-
p. 341.
603
period.
The
It
title
be
(and the same
construed as joint or several, according to the interest taken
rule applies equally to all covenants), are to
by the
3
parties to
which
case,
is
whom
held that
all
must join
in
" with
it
was
this
%
1
383
Heath
v.
Whidden, 24 Maine,
Stewart
West, 2 Harris,
(14 Penn. State R.) 338 9 Jarinan's
;
v.
by indenture demises
to
Ablackacre,
Conveyancing, 402.
2
Supra, p. 578.
Coke, 18.
3 5
that he
4 " It
nant
these words
words
it
et
cum
cum
quolibet eorum,
quolibet eorum,
make
words
is
et
is
raises to
lawful
owner of all
the said
cum
jointly,
quolibet
then
eorum are
less in
make
like
it
several
words cum
604
BY,
many
other cases. 1
that
by express
might
On
Queen's Bench. 4
man
make
to each of them, to
the
several at
election
joint or
of several
it
Eccleston
v.
Clipsam,
Saunders,
Spencer v. Durant, Comberbach, 115; Saunders v. Johnson, SkinScott i'. Godwin, 1 Bos. &
ner, 401
153;
Pull. 67
1
Anderson
Lane
v.
Martindale,
Drinkwater,
Rose. 599 ;Brad-
East, 497;
v.
and
that,
may
tees,
several
The
lows
assumed that
The language
interest of
action
interests.
Wherever
was,
parties
may be
to
the-
is
the
separate, the
several, notwithstand-
action
must he
joint,
although the
interest
is
effect.
But
would give
joint.
indi-
intention, a covenant
be joint, or joint and several, to
cative of the
joint,
supra, p.
be
to
With
joint
to the
covenant a different
The general
rule proposed
however express."
3
Sorsbie
v.
Park, 12
Mees.
&
Welsby, 146
Keightly v. Watson,
3 Exchequer, 716.
4 In
Hopkinson v. Lee, supra, the
covenant was, apparently, expressly
framed upon the strength of the opinion expressed by Mr. Preston. The
covenant, was to and with Jonathan
his heirs, &o.," and alto a
;
605
will he
it
1
and the
is
no
real conflict of
perhaps he
where the interest is joint, the covenant can
never he joint and several, that is, the covenantees can never
authority,
thus stated
the cases
may
and
with
Ann
to
Anderson
v.
with E.
We
plaintiff.
see
no ground
for
v.
ing,
by's case,
which
intention,
and
other,") said,
derson
v.
language
fines the
exclusive can
make
it.
In Slingsby's
was with certain
persons named et ad et cum quolibet
et qualibet eorum.'
No words can be
stronger to give the plaintiff an option to sue all jointly or each sepaYet in both, the Court held
rately.
that
must be
joint.
We
be waste of time
words
'
as
to
think
it
would
a distinct covenant
'
do
cited
from those
well-known
51 *
Anderson
v.
my
Lord Abinger's,
to
do
it
being fully
by those cases,
that one and the same covenant cannot be made both joint and several
established, I conceive,
It
may be
fit
ton's
terests
expressed
ors,
and the
it is
p. 393, relates to
606
BY,
which
several, a covenant
by one covenantee
Where
alone.
joint in
is
or each may,
think
it
it
face of the instrument that the parties had a separate interest, so that
it
be a sepa-
to
rate
New
Palmer
R. 743
Harrold
v.
Grang.
Whittaker, 11 Queen's Bench, 161
v.
Sharp
*
Decharms
526
Tapscott
v.
Williams, 10 Ohio,
&
Cress.
4
v.
&
lf>7;
Paul
Witiuan,
v.
:5
and
it
was unreasonable
warrantee,
pay,
how
is
is
Is the
many
Although,
warrantor to be liable
as
between
themselves,
interests
Patrick, a
value ?
443.
Watts
is
The
ficulty.
Sparshott, 4 Scott's
Mills v. Ladbroke, 7
218;
a joint suit
the testator
410;
v.
&
Man.
Id.
depends upon the subject of the action and the interest they have in it,
and the student must distinguish be-
& Cress.
835
it
jointly.
fit,
Of this,
as
it is
the
Of
607
It
has
Unless
as respects the right of the heir to sue.
the warranty, he could not take advantage of
named in
2
it.
But
although not
named
terms
in
and
it
suggested that such covenants might, in general, be construed to run with an estate of inheritance to the heir, un-
When
a joint interest
either
by the
is
parties or
created,
by act of
v.
Gamble,
all
suit,
is
titled to the
money.
Devisees
may
Whether
lie,
became vested
in a tenant for
"We
supra, p. 356).
regard
life,
this
v. Witman, though,
was decided only that
different owners may properly join."
in that case,
1
2
3
it
Supra, p. 586.
Co. Litt. 384 b; supra,
Lougher
v.
p. 587.
Williams, 2 Levinz,
92
decision of
Barn.
is
&
Twynam
Aid. 105.
v.
Pickard, 2
In that case
lie
it
by
367
Sacheverell
;
v.
Froggatt, 2 Saund.
Platt
Kingdon
357; 4
v.
Nottle,
Id. 53.
608
less
BY,
the covenantee. 1
The
of transmission or assignment.
suit upon these covenants can, therefore, only be maintained by the personal
the land
English authorities
cording to the
latter,
no
distinction is taken
between these
and not
to be
broken
an evic-
until
But
title,
descended as to their
Roc
* 5
Taunton, 418
3 i
p. 337.
;
supra, p. 338.
benefit,
see supra,
GOQ
the whole
whom
the
sustained.
damage
damage has
fallen.
If,
Fourth.
They
Mees.
ver, 12 Mees.
&
Welsby, 718
Wai-
v.
In
Raincock,
elab-
considered as at
is
all
an open one,
it
See
title
testator
pra, p. 509.
2
Townsend
v.
Morris, 6
Cowen,
v.
Tapscott
442
Grist
Williams, 10 Ohio,
Hodges, 3 Devereux,
(N. Car.) 201 South v. Hoy, 3 Monroe, (Ken.) 95 Pence's Heirs v. Du;
v.
vall's
Williams
v.
187.
4
Beddoe's Exrs.
v.
Wads worth,
21
BY,
ETC.
or intestate
during his lifetime, and which were broken before his death.
As
by
So with
"
expressed in words
Regularly," says Coke,
warrant land to another, and his heirs, without
:
vouch ;
"
"
if
when
man
naming
as-
covenant the rule was different, and the assignee could take
5
The right, however,
advantage of it though not named.
of an assignee to take advantage of covenants entered into
with one prior to himself in the chain of title, depends upon
circumstances, which have been attempted to be ex6
plained in a former chapter.
many
Townsend
v.
Morris, supra.
2 "If a man make a feoffment
this
word
dedi,
by
his labor,
and employed
his cost
upon
and grant as
and the lessor
hath no other prejudice than what
benefit of the demise
the
16.
an annual rent
reasonable,
and therefore
when he hath
it
applied
6
ct
first
lessee might,
seq.
CHAPTER
611
ETC.
XIII.
THE
between the rules which govern the revendor and purchaser before and after the execution of the deed
while the contract is still executory, and
distinction
lation of
after
it
is
executed
is
Al-
Much
objection
admirers of the
civil
is
made by
law
the
to the doc-
by Lord Eldon
in
Hiern
v.
Mill,
man merely
and vendee
in the ab-
and
purpose of
concealing defects, or to make such
representations as may have the effect
any
demand,
yet,
and circumstances
affecting the
subject of sale, are
equally accessible to both parties, and
neither of them does or says anything
facts
value
of the
impose upon the other, the disclosure of any superior knowledge which
to
one party
may have
is
Atkinson
134.
on
Marketable
Titles,
612
THE PURCHASER
RIGHT
is still
this right,
it
it affected
by
which the purchaser
is
to receive.
But when
its
original terms
and those of
See supra,
p. 562.
Throughton, 1
Ves. Sen. 86 2 Sugden on Vendors,
419 Johnson v. Johnson, 3 Bos. &
Pull. 162
Cripps v. Reed, 6 Term,
606
Roffey v. Shallcross, 4 Madv.
Throughton
;
The
where
St.
and
it is
by the
articles agivi-il
assist
him
and he
Vane
Vendors, 420.
v.
Lord Bar-
Clarke
4
v.
The
Faux,
3 Russell, 320.
distinction
is
many
a familiar one,
cases in which
refuse to disturb;
will
and the
Twining
it
v.
lock
18
v.
Homer,
v.
burgh,
&
Jac.
Pike, 2 Drury
on appeal, 8 Cl.
v.
mour
Gans
37
10
Brocksopp
Clermont r. TasWalk. 1 20 Vigers
Id.
& Walsh, 1
& Fin. 562;
;
S. C.
y.
206.
(Jriliith
(N. Y.)
r.
613
The
a purchaser's right
court of law or equity,
to
relief,
is,
title
and
whether administered by a
1
This has been settled by a
necessary and intimate one.
In Buckhurst's
series of decisions from an early period.
was held
it
have his purchase-money again upon that account ; possibly there may be equity to stop the payment of such purto
chase
as
money
is
is
paid;
Seitzinger
eral
contract
executory as to such
is still
immaterial,
2 1
3
Coke,
1.
Hodges
v.
ing, (Mass.)
2 Freeman, 1
S. C. Rep.
temp.
Finch, 288, and Appendix to 3 Swan-
as
Except
will
be
v.
Roach,
in Pennsylvania, where,
hereafter
52
shown, even
Saunders,
475
1 7
Redwine
v.
Picker-
Brown,
10 Georgia, 311.
4
ston, 651.
614
THE PURCHASER
RIGHT
v.
mond,
bot
v.
Falconer
Dec. 151
and assigned
value, covenanting that
neither the testator nor himself had
pers
it
of his testator,
for
full
to
estate.
knew
of
this,
back what he had paid. The admin" did not covenant for the
istrator
v.
Earle
to look to the
tion,
see Price
v.
Neale, 3
v.
Beale
v.
658
Commonwealth
Sieveley, 8
Leigh, (Va.)
v.
McClana-
(Ken.) 627 Allen v. Hopson, Freeman's Ch. (Miss.) 276 Nance r. El;
Sandford's S. C.
Id.
76
gia, 10
Wheaton, 333]
Johnson
v.
Maryland Ch.
Clark, 3
v.
ney
it."
v.
Morris, 4
was incum-
goodness of
liot,
It
v.
that
goodness of the title, but only
neither he nor the testator had en-
Ray-
ern eur
v.
Craig
Frost
v.
Gilchrist, 3
effects of those
fairly
They
will
615
To
fraud, or
or mistake
what
;
but then
either
ground,
is
that
it
is
on the
no
there was
It
case, they declare the contract absolutely void ; in the other, they make
it
it
especially
one
which
the
parties
it
is
by covenants.
If he
assumes the
seller
sum
See
due."
this
case, infra.
In an anonymous case, in 2
is
said
by the
its
was an agreement
to
extend against
"
2.
The
affirmative covenant
negative to what
all
one as
if
it
is
may
not be
made
and purchase,
is
In
many
cases
it
may be
"These remarks,"
616
the purchaser.
deprive him of
title
defect or incumbrance.
But while
this, as
a general principle,
in
England, as
to
is
The
v.
distinctly
laid
down.
a common, and
filed
bill
rescind
to
the contract,
and
aware of these
facts at the
they were not disclosed by the abstract, and that they represented themselves to be seized in fee of the whole estate.
2
" This
Sir William Grant, in delivering his opinion, said
is a bill of rather an unusual
It is brought
description.
by
:
back his purchase-money, on the ground of an alleged misrepresentation with regard to the title of a part of such
Leonards,
" are
unanswerable, and
if
ble to lose
Cooper, 808.
Master of the
Rolls.
It
estate.
617
of this country, the insufficiency of a title, even when producing actual eviction, necessarily furnishes a ground for
By the civil
claiming restitution of the purchase-money.
our
a
vendor
is
in general
law it was otherwise.
law,
By
his
of
covenants
but it has never
liable only to the extent
;
been
laid
down
title,
there can be
no
Urmston
the case of
v.
had discovered the forgery, and had then got rid of the
deed as a true security, the case would have been very different.'
cation
if,
the purchaser
upon
Whether
fraud.
title
And
it
had leave
to
amend
his repli-
would be a fraud
to offer, as good, a
to be defective in point of law,
not necessary to determine. But if he knows and conceals a fact material to the validity of the title, I am not
it is
make
The only
But
plaintiff
him."
i
Supra,
p. 614, note.
Douglas, 654.
supra, p. 614.
52 *
See
this
case
618
THE PURCHASER
RIGHT
Upon
He was
not apprised
of any such decision, but he agreed with the Master of the
Rolls that if one party make a representation which he
2
knew
2 Swanston, 308.
The Earl
remark
of
Devon
he asked by
said of this
Small
give
v.
as
Property
administered
House of Lords,"
in
the
653, he says,
" Lord Elin speaking of this case,
don's statement of what he considp.
ered 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
tation
sentations,
stances as
tify
equity."
3
modification
extent, "as," said the Chancellor, "it seems to have gone too
as to
its
the
bill
word imtlu>
word
so long a possession
.title
is
chaser, he
nants.
fairly
before
must rely on
the purcove-
his
any representation.
If
the
619
1
chequer, in 1832,
3
that
is,
fact
and conceals
it,
he
is
chaser the means of forming a judgment on the title, and is not to decide
what he deems
Sir
close.
the
bill,
W.
v.
McLeay
Attwood v. Small,
infra ; Gibson v. D'Este, 2 Younge &
Wilde v. Gibson, 1
Col. N. S. 542
Clark & Fin. N. S. 605, where Lord
highest authority
is
it
hardly
it
fraud,
veyance
Clark
The
&
facts
difficult to
that
it
do justice to them by
an abridged statement.
Indeed, in
other,
is
so fre-
nation of
many
circumstances, as to
v.
Harris's
Van Lew
Admr.
v.
Young
Alabama, 111;
Parr, 2 Richardson's
purchase-money was
600,000, and
appeal was
heard in the House of Lords, had
the
costs,
before
the
call for
is
to refer to the
latter,
Taylor, an
oldest
and upon
his
620
Brougham,
in delivering his
opinion in the
a contract, and
two
stated
is
is
be
is
known by
an action of damages
will be a relief in
grounded upon
equity to the same party
and there
he
In one case it is
tation of the other contracting party.
not necessary that all those three circumstances should conbe given
to
correctness
close to estimate
of
safety,
the
representations
that
These
examined for
to him.
directors subsequently
Company
had concluded
the treaty of purchase after the nature and capacity of the warks had
been
Soon
fully investigated.
after,
the
Company.
Some
to
negotiations
title,
iron
Taylor, were
Attwood
to
The
was paid
visit
and
correct,
after
com-
still
given by
after, the
Company
filed
bill
to re-
and concealment
representations were
upon certain
were
and
general averassumptions,
In
his
621
bine
it to be
contrary to
secondly, that the party making it knew
l
and thirdly and chiefly, in my view of the case,
the fact ;
1
Armstead
7 Grattan,
v. Hundley,
(Va.) 64 (see Sutton v. Button, Id.
239 ;) Smith v. Mitchell, 6 Georgia,
458 Dale v. Rosevelt, 5 Johns. Ch.
182
Daniel
(N. Y.) 197
1 Story, 172; Mason
at law, equity will lend its jurisdiction to rescind the contract, but
exist.
lie
the converse
by no means univer-
sally holds,
v.
Champlin
Laytin, 6 Paige,
v.
Queen's Bench,
v.
Mitchell,
Crosby,
it is
now
decisively
settled in
know
v.
Evans, 5
Barley
v.
v.
Hey worth,
Ormrod
v.
v.
147; Taylor
Huth, 14
Id. 651,
and the
this
principle
applied in equity in the rescission
8 Johns. 25
estate
Hitchcock
Mead
v.
Bradley
Story's Eq.
142
v.
v.
to
validity;" 2 Kent's
real
342.
Russell
v.
is
to
Clark, 7
Young v. Covell,
Hammatt v. Emerson,
Maine, 309; Weeks v. Burton, 7
Vermont,
79 Lord
;
Alfen
v.
67
v.
Ewins
v:
Calhoun, Id.
Hamp. 99
Colley, 6 N.
Addington,
Wendell, (N.
THE PURCHASER
622
RIGHT
that
v.
;
Howard,
(U.
211.
S.)
states
as
where he
own
Tuthill
bull
Without,
v.
y.
Car.) 14
y.
Craig, 2 Bibb,
Shackelford
y.
Handley,
Parham v.
Marshall, (Ken.) 500
Randolph, 4 Howard, (Miss.) 435;
affirmed in English y. Benedict, 25
;
Miss. 167
340
Crittenden
(Ken.) 474
Babcock, 2
M'Ferran
in
6 Id. 245
Id.
158
469
Medley
58
Taylor, 6
;
Smith
v.
Gill
Joice
&
Johnson, (Md.)
Babcock, 2 Woodbury &
500
ing
that attempts
pose signifies nothing
that an
to overreach go for nothing
Lockridge v.
Foster, 4 Scammon, (111.) 570; Turn-
go
this intention
shall,
bull
(Ken.)
y.
by
Gwathmy's
Denny, 4
v.
v.
v.
v.
erson, 27
John, 16
Taylor, 3 Cranch,
S. C. 3 Id.
Watson,
Stone
v.
Thus, in Winston
(Mass.) 193
calf,
282.
American
authority
Concord
honesty of purpose,
all this
fraud,
all
be made
which
to
this transaction
623
in
strict morality,
very
Eldon
in
Turner
420
v.
Fox
Mackand of Lord
Harvey,
v.
the
first,
the contract.
the
It
make void
must be shown
that
made
have
made a representation and, moreover, the representation so made must
have had the effect of deceiving the
of
his
directions,
;
purchaser and, moreover, the purchaser must have trusted to that representation, and not to his own acu;
men, not
to his
own
perspicuity,
and
mixed up
together, the false representation of the seller, and the inquiries of the buyer, in such a way
as even then to give a right to relief."
trated
calculation
and the
Tindall
v.
19
Harkinson,
Georgia,
fulfilment
own
vendor's
to overreach
it
n.
We
Jacob's
295,
334.]
generally find the case
to be, that there has been an attempt
of the one party to overreach the
other,
Court below
examination of
&
Hill
son
v.
165
all
Davis
v.
Sims,
Bell
Anderson
v.
v.
Henderson,
supra;
Smedes &
Foley v. Cow-
12
Hill,
;
sidering
means
call for
am
con-
by no
the interposition of a
court of equity.
Such commendations are so common and natural,
that they are generally expected, and
duly estimated. The proprietor forms
and often
It
artifice
of
would be im-
621
THE PURCHASER
was reversed, 1
yet, as
RIGHT
warmly commended
seller
had
the qualities of
The Earl
of Devon, in delivering
Small v. Attwood, con-
his opinion, in
cient to fix
representation, and that the purchasers did not rely upon the statements
To
allow
them
in
our
labor which
tect
may be
and punish
It
is
maxim
strict
construction
which
is
is
requisite to de-
it."
at a distance,
found
made
to
themselves.
fore,
pany
thirdly,
false ?
and
pened
to
lastly,
deprive the
Company
of
ments of
cost at that particular pethat they did not rely upon the
representations, but having free ac-
riod
Peters, 26 ; Sandford v.
Handy, 23 Wendell, (N. Y.) 260;
Van Epps v. Harrison, 5 Hill, (N.
selves of the accuracy of the representations, and that with full knowl-
ards,
13
dam-
edge of
all
of,
625
St.
1
Leonards remarks, that
and explained
in the
tained."
damages might,
under such circumstances, be sus-
tled, that
made with
false, to
making
made
a definite
mainin
a
court
action
of
coman
taining
mon law to recover damages for the
deceit so practised, and in a court of
2 Barr, (Pa.) 107, where the representation was made that the incum-
" I do not
" that that
is
disputed by either of
noble and learned friends it was
them, a foundation
upon a fraudulent
understand,"
is laid
basis.
said
he,
for
Dobell
proposition
my
distinctly laid
in
to at
v.
Stevens
by the recent
is
case of
fully
Hunt
supported
v.
Moore,
Dobell
The books
ing a certain period.
were in the house it was part of the
;
proper
will
Law
'
Had he
been silent merely, perhaps this plea
would have availed him although
even in that case a court of equity
;
of Property, 598.
626
THE PURCHASER
RIGHT
chaser,
what he
and
is
under no
Bean
(Ken.) 23; Campbell v. Whittingham, 5 J. J. Marshall, (Ken.) 96 Parham r. Randolph, 4 Howard, (Miss.)
in
Jackson, 5 Selden,
(N. Y.) 545; see, however, and consider Griffith v. Kempshall, Clark's Ch.
451
Burwell
v.
The
" the
v.
maxim
ficient
where
which
this
re-
call for
relief, is
not defined
Jacob, 178,
make no
distinction," said
in Early
J.,
Cress.
v.
Garret, 9
" between
928,
Bayley,
Barn. &
an
active
fraudulent concealment
So
Ch. 390.
it
v. Morgan, 2 Brown's
was said by Mr. Jus-
tice
equity,
relief, is
it will
grant
the non-disclosure of those
facts
other;"
v.
Story's Kq.
Bumpass,
241
207; Young.
Tins State
Lord Eldon
Turner v. Harvey,
been in the habit of
saying, that where parties deal for an
in
" has
may
estate,
they
arm's
length,
and
himself,
served in Richardson
v.
Bright, 9
Vermont, 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 power,
was no fraud
he was not bound
it
to inform him.
Kempshall,
Of
will
its
See also
Griffith
v.
Y ) 576.
be
application,
627
this
v.
Attwood.
it
may do
damage
irreparable
to
one
between the
put them
to
Fox
v.
Mackreth,
w. Brice,
notes to
Leading Cases
Equity.
The converse of the position
ed above
said
is
in
Lord Thurlow
in
Fox
remarks of
Mackreth,
2 Bro. Ch. R. 420, " If an estate is
offered for sale, and I treat for it,
v.
it.
[Harris
Tyson, 12
v.
senses
and knowledge.
little is
But a very
If a single
word is dropped which tends to mislead the vendor, that principle will
"
and, in
back; Allen
stat-
by Lord Eldon,
Cress. 928, as
state facts,
u.
Addington,
Wendell,
propriate.
from
its
complicated
facts,
that
it
ed
me
that
it is
importance.
a precedent of much
an excellent
It affords
commentary on the
rule of law,
and
fraud; Misncr v.
69 Young
4
Oilman,
(III.)
Granger,
will
amount
to a
v.
Bumpass,
241; Bean
2G2; Early
1
v.
v.
Barn.
&
principles
ground of misrepresen-
628
THE PURCHASER
RIGHT
was a
lease of mines,
to the
House of Lords,
was
the decree
which was
silent
inquiry,
the contract.
is
is
and exclamations,
particularly if they
are not distinctly charged in the bill,
so as to enable the other party to
meet them."
In the
last edition
of
work on Vendors
i.
it
p. 383),
he
much
ing pig iron, they should have required him to bind himself by the contract
and
for
resting
the Lords in
ett'ecl
decide"
I.
that
w here
proved
to
Such a
be incorrect.
sim-
it is
clear, that if
such a
demand had
to the
Fin. 502.
629
and even
to
exhaust
it
in the
enjoy-
by working mines.
In the recent case of Gibson
ment, as
2
D'Este, the question was
whether a purchaser was entitled to rescind an executed
contract because of the omission to mention to him the
v.
existence of a right of
of the house.
complained of
it
in,
acknowledging
tin, 1
69;
Y.)
Tindall
Georgia, 448
v. Harkinson, 19
Glasscock v. Minor, 1 1
Missouri, 655
4 Scaramon,
Lockridge
(111.)
570.
v.
Foster,
Length of
plaintiff
no
from re-
lief, if
McLean v.
much
In the
New York
of
litigated case in
Whitney
v.
Allaire, 4
Hill, 484, 4
313,
it
purchaser would not be suffered to rescind the contract, if, after the discovery of fraudulent representations
as to
on
its territorial
yet that such affirmance of the contract only made it binding as such, and did not destroy the
to affirm
it,
53*
to insist
on the
Notes
to
Chandelor
v.
Lopus,
Younge &
Collier,
N.
S.
542
as Wilde,
cellor,
House of Lords," p.
and the reversal of the decree of
istered in the
6 15,
the
Vice-Chancellor, severely
cized by him at great length.
criti-
630
by a deed
parish
agreeing that
on seven days' notice
that
latter
to
the
surveyor
and that
of
its line
the
claim
of
the
parish
stones.
to
The
the
way,
surveyor,
among
out into
The
lots,
as the road
was supposed
to
the purchaser
stances.
rent,
rescind
ment.
to pay,
and
filed
bill to
the contract on the ground of fraudulent concealcharge of personal fraud whatever was made
No
appeared
l It
631
Under
cealment from the purchaser, and substantially under mishim of material facts within the knowledge
representation to
of the defendant or her agent, whose knowledge for the
to her knowledge,
present purpose was to be held equivalent
but not within the knowledge of the plaintiff, he being without the means of knowing the true state of these facts.
But
this
as
principally,
it
was
said,
House of Lords, 1
" The
of her solicitor, could not be applied to the case.
effect of constructive notice," said Lord Cottenham, in deliv" in cases where it is
ering his opinion,
applicable, as in
contests between equities of innocent parties, is sufficiently
severe,
and
is
some ground
wise equal
but this
is
the
first
time I ever
knew
it
applied
convey
definite
McLeay,
With
this opinion,
case
much more
in
63
still
executory,
And
kind,
there
would be no safety
if,
man-
any distance of
at
He
en-
there
was no evidence
" The
knowledge, then, amounts, to nothing.
knowledge which would show that he was
fraudulent misrepresentation."
before.
It
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
*
If there
were a
relief,
way
it
is
He
had no
guilty of
The
strictures of
ards in "
Lord
St.
Leon-
The Law
of Property as
administered in the House of Lords,"
p. 637,
" to
rect," said he,
the
common
compare
this
with
tice.
yet
if
were
me
my
agent
know
of
it,
or there
to inquire, I am
notice.
constructive
bound by
This
for I
is,
this
no
am bound
by an incumbrance of which
ivally
633
The foregoing cases in the House of Lords have been referred to at some length, both on account of their intrinsic
But does this apply
notice.
a ease, where an owner of an es-
had not
to
tate in
rent,
The
isfy ?
notice runs, as
it
were,
The payment by
an agent cannot weaken the case
where the agent knows why he pays,
and the receiver knows why he is entitled to receive.
The owner does
with the charge.
not think
ment
fit
to inquire
why
the pay-
made, although marks to support the right are set up on the estate, and the deed creating the charge
is
is
The
the -payments.
The question does
not appear to be whether the perusal
of the deed or the entry of the payments would show the precise line of
road, but whether the deed
liable to
it.
Very
slight evi-
if
ed,
may
the
costs,
ner
be-
seller
liable.
But
stances as conveying to
him no notice
possession, without
condition,
any manner of
qualification,
restriction,
matter or thing whatsoever, expressed or implied, and which could revoke, determine, abridge, qualify, alcharge, incumber or prejudic-
ter,
same
in
any manner
634)
importance, as decisions in the court of last resort in Engand because they show, as conveniently as any other
class of cases, the principles by which the rescission of exe-
land,
not so
cation.
The
contains,
chaser
is
recover
it
arises
how
in other
for
title
titles
him
to relief.
nants following.
be framed
"
But
it is
probable that
instead of
this fact
carefully
argued
case,
it
was
not
deemed a proper
as
it is
title
subject of attention,
believed that covenants for the
nection.
1
Supra,
Upon
p. G14.
this
of this work I
recall the
may be permitted to
words of Lord Eldon, that
remedies," Turner v.
Ch. R. 169, and
Jacob's
Harvey,
the expression of Chancellor Kent,
that on this subject " the law does not
to their legal
seem
tied,
Com. 471.
635
The
merous
The almost
title
more nu-
by purchase
in its
The
Where
estate
that
it is
free
whomsoever.
ter
title.
by whom
from
it
all
incumbrance
or that he will
Hence, any defect or incumbrance, no matcaused, or how far back in the chain of title,
to
and are most frequently presented upon a bill filed for spe2
cific
and even where quesperformance of the contract
;
versy are
much more
American cases
for
in
cumbrances of
See supra,
The English
p. 551.
cases as to specific
performance of contracts of sale of
real estate are very well collected
and arranged
in
found.
636
and concealment by him, or the neglect of provident vigilance on the part of the purchaser.
But where, as in parts
of this country, general covenants are often
given, and
sometimes even regarded as a substitute for examination of
title, many cases must arise where the question of con-
the
cealment
is
of
any previous
owner
may have
caused.
recognize
same
the
suit.
to give to a defendant
any redress except by
of
a
cross action ; and although courts of equity
means
had, before this time, been in possession, of the more liberal
of
set-off,
doctrine (which
was
to
by the term
have been little
It
seems
4 Anne,
5 Geo,
II. c.
6 Geo.
IV.
* 2
24.
Geo.
17
5 Geo. I. c. 11
;
30; 46 Geo. III. c. 135;
c.
c. 16.
II. c.
22
8 Geo. II.
c.
3 See 2
Story's Eq. Jurisp. c. 38,
on Set-off; Freeman v. Lomas, 9
Hare, 109, 5 Eng. Law & Eq. R.
1
20.
its
637
a defence, a breach of
price, to set up, as
own
lish his
rule,
claim.
and have
It is
both in
the principle,
finally established
Eng-
and
in mitigation of
damages.
went
it
to the
when
when it
until
touched only a part
4
settled as has been stated.
in
Basten
v.
Ellenborough in
Crowninsliield
rard, 1 Campbell, 39
Thornton
v. Robinson, 1 Mason, 93
;
v.
Wynn,
12 Wheaton, 183.
In
Mog-
exchange was
The
de-
and
fendant was
agreement.
a
Cress.
seem that
and
877,
this distinction
would
it
still
exists
in the
12 Connect. 234;
Day
v.
see
v.
Nix, 9
Hotchkiss,
McAlpin
v.
&
&
Cress. 259
bell,
&
Barn.
N. Hamp.
3 Id. 458
481
1
;
74
Elliott v.
Dodge
v.
v.
Temple,
Turner, 6 Id.
Heath, 14 Id. 131 ;
Shepherd
Britton
v.
Tileston,
12
Pickering.
638
It is difficult,
such a defence
come under
is to
the head of
general, sound
set-off',
was not
in
in
point.
how much
but by showing
less
name of recoupment. 3
But by whatever technical term such a
the
whether
called
be compensation,
it
defence
set-off',
may
be
failure of con-
sideration, or
based
is
viz., that
extent the
Whitney
v.
S. C. 1
v.
Allair, 4
Denio,
Comstock, 306
Steigleman
Rawle, (Pa.) 478
&
Serg.
Patterson v. Hul-
Jeffries,
507
Peden
v.
Wynn,
12 Wheaton, 183.
See Sedg-
and the
17,
Lopus, 1
Smith's Leading Cases, and Cutter
v.
Powell, 2 Id.
v.
lives
v.
Van Epps,
22 Wendell,
Mondell
Y.) 171
may
whatever
to
have rejected
wick on Damages, c.
notes to Chandelor
ing, (Mass.)
and
v.
Steel, 8
Mees.
& Wels-
by, 858.
3 The
subject here so briefly and
incidentally touched upon, will be
found very
in the
src
214,
and Wheat
sas, 699.
v.
Dotson,
Arkan-
639
it
has heen found, in modern times, less inconvenient to determine, in the same action, as well the rights of the defendant as those of the
with different
ties
plaintiff,
suits,
matter.
could, in the absence of illegality of consideration, be admitted to its payment, even where the title to the land had
its
pos-
fail-
utterly failed,
session.
Hence,
payment
when secured by a specialty, unless
where illegality had, in some way, entered into the contract. 3
The only remedy was by recourse to equity.
In America, however, the common-law rule as to the
solemnity of a seal, has, in some States, been relaxed by
of purchase-money,
the obligor of a
consideration;
1
Fraud would
less the
78
instrument
Rogers
infra.
2 Collins
347
no defence, un-
tion of the
Colt, 1
bo,
v.
see
the case,
is
it is
immaterial,
ing Cases.
4
Case
Boughton, 11 Wendell,
v.
(N. Y.) 107 Wilson v. Baptist Society, 10 Barb. S. C. (N. Y.) 312;
;
v.
Vrooman
Rogers
v.
Blantern, 2 Wilson,
v.
Phelps, 2 Johns.
Colt, supra.
M'Knight
534.
v.
Kellet,
Georgia,
640
back
in
would seem
chaser have a right to permanently detain unpaid purchasemoney on the ground of a defect of title, he should be pre-
Hence
consideration.
it
may be
title.
His remedy in such case is by an
and not by an action of assumpsit. 3 But
when
104
345
448
Toussaint
;
v.
Martinnant, 2 Term,
Hunty. Amidon, 4
Tillotson
(see
Lea
v.
Hill,
Grapes, 4 N.
v.
(N. Y.)
Hamp.
Dean, 3 Wharton,
covenant of warranty,
to
repay the
tiff,
is
that of a defendant,
him back
to his cove-
eration,
deed.
it
was
be maintained by a purchaser,
to re-
641
1
nants in his deed," yet it is often thought to be useless and
wrong to compel a purchaser to pay over purchase-money,
which he might the next day sue for in the shape of dam-
ages
and hence,
law of a
at
failure of
lowed.
strange that where there has been no uniform
as those now
legal principle under which such defences
treated of have been classed, there should have been some
It is not
As
question, in
covenants for
itself
title,
form a consideration, 2
value
a motion for a
enants for seizin, against incumbrances, and of warranty, with a condition that the grantees should not recover of the grantor for the breach
of those covenants
further
sum than
any greater or
the consideration
new
trial,
that both
on
general principles, and from the construction of the deed, which seemed
framed to meet such a case, the verdict should be allowed to stand
but
defendants
(Miss.) 211),
remain
unpaid.
The
54*
and
that the
want or
failure of title
legal de-
in an executory contract,
fence
this
it
was
down
said, laid
law,
sup-
such
received
formed so
the
v.
Lee, 3 Pick-
covenants,
could have no defence to the pay-
ment of the
said, that
It was further
notes.
whatever claim the defendants might have was upon their covenants, and that to allow them in
110
448
v.
having
14 Id. 293
;
v. Goddard,
Vinson, 20 Id.
Grapes, 4 N. Hamp.
Frank
Tillotson
v.
v.
dam-
avoided,
action, as in
Hamp.
Tillotson
448.
The
v.
ob-
tion,
less
lastly, it
own
warrantor.
Court
in
Fowler
Lloyd
v.
v.
Shearer,
as
was
Eng-
an exe-
themselves
643
transfer to
in
him
no way responsible
and
if
who was
to he
ered to the purchaser, he has received the entire consideration for which he bargained, entirely irrespective of any
future events, and the question of good or bad title is irrel1
Where the covenants are limited to the acts of the
ative.
vendor, the consideration would seem to be the present transfer of his estate, in the same condition as that in which he
himself received
and
it,
when
his heirs,
is
executory,
it
damages
in this
satisfied for
manner; or if the
The
later cases in
up
Maine do not appear to support the
reasoning adopted by the Court in
Lloyd v. Jewell, but treat the case
Wentworth
form no defence
to the
pur-
it is
146; Thompson
l
Supra,
v.
p. 614.
the sale of
and the
Goodwin, 21
already been noticed, and Lord Tenterden, in Street r. Blay, 2 Barn. &
price
v.
compliance
tract price.
for the
plaintiff's
icarranty was
part of the consideration for the conwith
Jtis
644
chaser from payment of the purchase-money, for the considand his vendor is not affected.
Where
sideration
estate,
the covenants are unlimited or general, the conseems to be the present transfer of the vendor's
his heirs,
title.
it
may
If there
conceived to be the true meaning of the term.
has, the purchaser would be at that time entitled to recover
is
call
upon the
plaintiff'
in other words,
to
perform
his cove-
by
measure of damages
or, if
exercise of a familiar jurisdiction, can, by its varied machinery, ascertain the mutual rights of the respective parties, and
mould
its decrees
accordingly, by enjoining the collection of
the purchase-money, either temporarily or permanently, by
awarding issues of quantum damnificatus, and by such other
Supra,
may
require.
p. 241.
2 See
passim as to the
modes of ad-
64<5
entitle the
Where
may
difficulty
covenant
which
nant, cases
may have
may still
is
may
it
ment
till
similar circumstances.
See supra,
p.
20
On
el seq.
resentatives,
as to this question,
and, in
such case, the latter, who are the
proper defendants in an action for
reason of
the
is
no difficulty by
want of capacity for
being taken advantage of by an asits
also
the
question of detention
signee.
The
of the
arise
purchase-money, are
defence.
64-6
every imposing circumstance, is such as may cause a preponderance in favor of the rule that unless there has been a
bond fide
be respectively
must
they have
decisions
have
principles, than
not
from the
always
from any
been
referred
difficulty as
to
grounds of the
to
the
the
same
principles
themselves.
and secondly,
The
of equity.
prominent case in this country, as to the
right in a court of law to detain the purin courts
earliest
purchaser's
chase money of real estate by reason of a defect of
1
seems to have been Frisbee v. Hoffnagle, decided in
York
title,
New
1814, where
in
llJohns.
50.
647
Here is a total,
guished by the sale under the judgment.
for
of
consideration
failure
not a partial,
although the defendant has not yet been evicted by the purchaser under the
;
sheriff's sale,
he
is liable
be
to
so,
and
will be responsible
mesne
for the
would lead
profits.
to
therefore, be denied."
The
was no consideration
Backus, Peake's
for part of a
the jury might apportion and
find damages for part (also accord.
Citing
2 Id. 346
Barber
v.
Morgan
v.
Richardson,
Tye
y.
Gwynne,
bill,
all
merely
a total
fail-
and recog-
J., in
that
where there
In Phoenix
on which
was brought was given for a premium of insurance, and it was admitted that the plaintiffs were not
suit
entitled to as
much premium
The
for.
as the
difference
Lamerson v. Marvin, 8
Barb. S. C. (N. Y.) 9, infra.
2 Vibbard v.
Johnson, 19 Johns.
77; Lattin y. Vail, 17 Wendell, (N.
Y.) 188 Whitney
Lewis, 21 Id.
in the case of
131;
116
Tallmadge
v.
Batterrnan
v.
Wallis, 25 Id.
Pierce, 3 Hill,
648
THE PURCHASER
RIGHT
of action.
Hence
In Greenleaf
the consideration
1
v.
title,
to
was referred
it
possible that
is
There was a
to.
a sufficient consideration.
Tarpley
" Few
cases," said Sharkey,
Y.) 14.
Ch. J., in Ploy v. Taliferro, 8 Smedes
& Marsh. (Miss.) 739, " have been
fectly correct
burg
Insurance
Co.
Blackford,
(Ind.) 525
which
v.
v.
deed
accord, in equity,
Woods
v.
North, 6
cited
and
elsewhere observed
is
Southwick, 10 Texas, 65
sufficient
facts,
self was
was perand
itself
upon the
Brock
Cooper
It has also
is
fendant
and
defective.
it is
If
it
may
been disturbed.
Court,
stitutes
who
is
fifood
64<9
Without deciding
is
The
of consideration.
equity of redemption
be worth
may
something, the Court cannot say how much ; nor is the inquiry a proper one in a court of law, in an action on the
If the defendant be entitled to any relief,
in this action."
note.
it
is
not
may
rest not so
to
distinction
gained
title,
such
it
ation
1
The
recent decision in
of Hussams
32,
was
to
nor
Vermont
Dampier, 2 Williams,
the same effect.
v.
sale
the deed
had contained
Thus, ten years after the decision in Greenleaf v. Cook, it was held
by the same
if
Thornton v.
Wynn,12 Wheaton,183, that a breach
of warranty of a chattel was no detribunal, in
fence to payment of
its
price if the
55
Withers
213,
v. Green, 9 Howard,
(U. S.)
and Van Buren v. Diggcs, 11
been much
650
result
damages.
Frisbee
In
v.
Scudder
Andrews, 2
v.
McLean, 464,
leaf
v.
this
seems
as being of
plaintiff
to the
defendant as evidence
title,
East, 479
&
&
In
Obbard
Malk. 483
v.
Betham, Mood.
note.
It
may be
was
to
run the
Greenleaf
and
v.
Cook,)
the question of consideration could
not afterwards arise in an action for
sion,
therefore overruled.
cases cited,
the
demurrer was
The
as a defence.
up
action
Tlic
by Lat-
ties,
note.
ter of defence."
New York
purchase-money.
too,
that
it
The expres-
was
immaterial
6ol
So
Whitney
4
bond given
money
up by the
set
been
plea, could
Lewis,
v.
in
an
conveyed
to
the
On
demurrer,
plaintiff',
principally
5
owner, and was then claiming adversely.
4 It is
that
by
New
York, as in
some other of our States, the consideration of a bond can, under some
restrictions as to pleading,
into to the
same extent
be inquired
as the consid-
77.
2 Rev.
At common
law,
such a defence was, of course, inadmissible, the obligor not being entitied to avoid a specialty, even on the
&
allegations of
tions,
corn-
medium of
mon law
652
THE PURCHASER
Soon
came
after,
RIGHT
the case of
Tallmadge
v.
go
to the
where
Wallis,
in
was executed
it
fully seized of
consideration
of
ance in fee simple, and had good right to convey them the
plea then averred that the plaintiff was not thus seized, and
;
had not a good right to convey, and therefore that the considTo this the plaintiff demurred.
eration had wholly failed.
There was also a plea of non est factum^ upon which the
was found for the plaintiff, and damages assessed to
issue
Frisbee
case
cited
Hoffnagle was in
y.
and
relied
on
for
sus-
this
the
ground for saying that the consideration of the bond had failed
the plea
defendants, but its authority was rejected by Bronson, J., who, in delivering the opinion of the Court, based
on several grounds. In
" the
it was said that
consideration on both sides was executed
not executory. Nothing was
to be done in future.
Although a
and
far.
his decision
the
first
place,
this
action
The
third
v.
.K
w-
for the
2
purchase-money.
25 Wendell, 113.
653
l
and on the case being removed to
by the Supreme Court
the Court of Errors, Chancellor Wai worth, who delivered
;
the opinion of the majority of that Court, held that the plea
In the first place, if it was to
two grounds.
was had
upon
whatever
as the consideration
however small
and
estate or interest
in the
second place,
if
intended as a
The
25
amount
to
Burton
be recovered.
v.
Reab v.
Stewart, 3 Wendell, 326
M'Allister, 8 Id. 109. In the present
;
Cox, 6 Barb.
want of consid-
v.
McCullough
(N.Y.)391.
may
plead
failure of consideration,
however, can-
can
be a
55*
purpose
title,
ranty, is a good defence to a suit upon the notes given for the purchase-
Where
there
is
a covenant of war-
is
not
65 *
THE PURCHASER
If
RIGHT
broken
something equivalent to an
eviction, there appears to be great
been an evic-
tion, or
difficulty in
to
show a
title,
total or
conveyed
frequently
warranty, which
general
is
warranty against
eviction only, when both parties to
the sale perfectly understand that
the
title is
is
means of
riod be the
evicting the
And
in the deed.
yet in
many
cases
to hold
purchaser were
title in
heirs, or in
ceived a
title
from them,
re-
directly or indirectly
premises at the
time of the
sale.
never intended
selves.
to
make
for
them-
the
whole consideration of
the note or bond given for the purchase money. In such a case, I can
see no good reason
avoid
to
ant,
why
the defend-
circuity
of
action,
manner
suit, in
as if the note or
the same
bond had
In the case
now under
con-
premises absolutely in
had shown
fee, if the
plea
terest
any part
thereof,
it
to the suit
and the
AV.-IS
in
possession of land
in
which he had acquired no right whatever iindi'i- tin- conveyance, lint the
plea
is
it
may
seems by no means
that the
definitely settled
place
for seizin are, as a
of
for
breach
the
a
covenant
damages
first
it
matter of course, necessarily measured by the considerationSuch a result, where the purchaser has paid nothmoney.
title,
ation
money
tled, that
jury
to assess the
where the
damages by
may
failure is partial,
it
be,
feel justified
the consider-
seems well
set-
may
is
bad,
if set
a plea which is
In the second place,
up
in
action.
which
it
fore, of
was given.
The
onus, there-
defendant.
He
upon the
to
do
by a
so,
he must be
cross suit
his deed."
having neglected
left to his
remedy
upon the covenants in
See supra,
See supra,
p. 73.
p. 92.
3 It
is, in general, said that a plea
of set-off should be as particular as a
declaration
off,
it
shall
be
and
precise.
Although, therefore, a technical rule allows a breach
full
by merely negativing
its
words, and
656
1
Marvin, the defend-
v.
ant,
recoup as for a partial failure of consideration, or for damages for fraud, or breach of the covenants in the deed, was
upon
the
ground
in the answer,
;
and was
flat
bar to the
v. Hoffnagle
(which, it was contended, had never been directly overruled in New York,)
being relied on in support of this position ; but the Court,
If Frisbee
v.
Hoffnagle had
never
been
would
bound
to follow
But
it
feel
questioned or
it without
from
sion
his grantor,
and
still
retained
it,
and
until
he had
covenants for
that
it
title) it is apprehended
would be held, as was substan-
Tallmadge
v.
Wallis,
that the plea should set forth particularly the breach of the covenant and
tin-,
(lania-c wliirh
(and
v.
this
!i;t<l
IHM-II
Mistaim-d
Williams, 11
Illinois,
238)
and
the
more
so,
is
either to
as.
in
Mondel
v.
Steel, 8
Mees.
657
From
New
So
in the case of
Boone
v.
Eyre,
II.
to the plantation, was lawfully possessed of the negroes, and that the
deed, but with the benefit to the defendant of half the royalty, the plaintiff, in consideration of
2,200 to be
<K)od title
plaintiff well
his part to be performed, he, the defendant. would pay the annuity. The
for
its
the time of
legally
covenants
is
(jo
very
to
said,
clear, ichere
the ivhole
of
"The
mutual
the con-
sideration on loth sides, they are mutual conditions, the one precedent to
the other.
carrying out
let,
&c.,
by
ment of the
up by the pleas
ation
is
to
be
set
failure of consider-
is invalid, and
bound by his covenant
money, which appears by
that he
fendant has a remedy on his covenant, and shall not plead it as a con-
out to be worthless.
fail
v.
390).
to
is
pay the
not
for
But
it
appears
indenture
658
is
The
New
to
plaintiff,
fraud or eviction
and
it
appears to
may be considered
in effect as a
mere
money."
upon
was brought was a
And where no
consideration
is
general issue
&
notice
is
given,
Tibbets
v.
Ayer, Hill
Lamerson
v.
Marvin, 8 Barb.
S.
payment of
659
securities given
conveyed to him
were levied upon
was
gagee had announced by advertisement his intention of foreclosing, it was held that these facts did not constitute a
defence to payment of the purchase-money, as it did not
appear any actual entry had ever been made by the mort2
gagee, or the defendant been dispossessed of the premises.
sale.
150.
Nor
veyed
the legal
off these
right to
pay
become
perfect.
incumbrances,
and by so doing, his title would have
If the effect
may
have been, that through neglect to redeem, the title of the grantee has been
destroyed, that is a result which may
often happen from a like cause, when
the
title is
more or
less
incumbered
It did
And if any
were received, he was entitled to retain them
for no other person could
call upon him to account for them.
The burden of proof was upon him.
The
was therefore
be proved
by the defendant, were insufficient to
show a total failure of the consideration of said note/
2
Jenness
The
cided so
Judge
That the
'
correct,
u.
"
much upon
this
ground, as
on the ground that the failure of consideration was not total, there being
no evidence that the defendant had
not received the rents and profits of
" If
the land.
anything valuable
does pass to the grantee," said the
660
So, where
two
in
it
So,
defendant pleaded that the note in suit was given for the
purchase-money of land sold to him by the plaintiff with a
covenant against incumbrances, and that certain incumbrances existed upon the property, which were still outstanding,
2
Decisions
the pleas were held bad on general demurrer.
Court,
This
strictness,
however,
modern
and
decisions,
in
a subse-
cision itself
grounds.
2 Clark
v.
Carter, 401
S.
C.
Hen-
Smith,
wards sold
and a cer-
tificate
that
No
eviction
Had
common law to
is
the taxes, he might have thus lessened the amount recoverable in the
note, but
Whisler
(Ind.) 100
v.
effect
Smith
v.
Buell
v.
Hicks, 5 Blackford,
see also to the same
Ackerman,
Id. 541
Tate, 7 Id. 55
Pomeroy v.
Burnett, 8 Id. 142 Hooker t*. Fol;
shown.
The
Id. 541
Clark
v.
Snelling.
Besides,
661
Hoy
v. Taliaferro,
demurrers to them
would not have injured the defendant, as he might in that case have
no
sustaining
the
v.
See,
also, to
In Chase
v.
v.
Weston, 12 N. Hamp.
415, the defendant, after the execution of the deed to him, which contained " the usual covenants of warranty," mortgaged
"
covenants
to
it
it
very doubtful whether
under the authorities (Lloyd v. Jewell, 1 Greenleaf, (Me.) 352, Howard
v. Witham, 2 Id. 390, Knapp v. Lee,
to think
ground that
as the
defendant had
tiff
right
third party
It
right reserved to the defendant.
was not a thing that could pass to a
assignment.
1
be
set off,
but
nants, which he
would be precluded
from suing on until he had satisfied
the damages recovered against him
by his vendee. See supra, p. 359. But
in Chaplain
v.
Briscoe, 11
Srnedes
complete
title
to
show a
whole of the
56
to the
11.
207; Hooker
ed)
Key
Martin
y.
vendor
It
payment of a note
It
had been
was devested
show
equivalent to eviction.
original vendor
by a marshal or
Manifestly,
it
was not
sheriff
was
might
protect his vendee by purchasing
from the marshal's vendee, or it might happen that the title
acquired from the marshal would not be sufficient to effect
an eviction.
still
in this instance
titles
of failure of consideration might be let in, because the supeof the outstanding title would then be established by
riority
a judicial determination.
The inquiry would then be narto a single matter of fact, susceptible of
being
2
proved by record evidence.
rowed down
" a total
failure, for another
the defendants held posses-
2 "
Ch.
J.,
reason
sion
for nearly or
663
made by himself
sold under a
ant was
still
Heath
v.
Newman,
as administrator,
was
judgment against the vendor, but the defendIn both these cases, the covin possession.
of general warranty, the Court held that
no eviction, the defence could not be
enants being
Dennis
v.
Heath,
was somewhat
The
similar in
circum-
its
stances to
Taliaferro.
v.
it
falls
Greenleaf
v.
this
ground,
(supra, p. 648),
failure
On
where
was not
total,
it
was
said the
because the
under
the
the
general warranty
absence of an eviction is conclusive
;
p. 93.
Duncan
It
v.
themselves
covenants
"
grant, bargain
press
and
covenants
away the
of
implied
of
the
by
statutory
the words
sell," as
the ex-
warranty
did
nants.
leasing,
never was
dee who has been put in possession of land and who has accepted
a deed with covenants of general
warranty of title, cannot defend a
brought for purchase-money, upon the ground of failure of consideration from defect of title, until he
suit
is
actually evicted."
The
case itself
664<
In
purchase at the sheriff's sale, held the land as his own.
an action brought upon a note given for the purchase-money
of the land, the Court before whom the cause was tried instructed the jury that these facts constituted an eviction
so as to entitle the defendant to a verdict, but the
Supreme
effort to
sale there be a
under
maintain
paramount
it.
title
put him in possession under a deed with covenants of general warranty, and that the defendant voluntarily surren-
to
titles
are not
law."
It
We
land in an
may
i In
Dennis v. Heath, the note
sued on was one of four, each for
$1500.
The whole
subject
of the
Hoy
v. Taliaferro,
counsel urged
that these
opinion alluded
the connection of the parties.
riage
delivering
to the price
it,
tlu-ir
and
665
to land in
an action for
title
its
conclusive effect
vouched or
and
it is
would
be,
apprehended that
would be bound
to
make
principle,
v. Thistle,
which
was an
chase
action on a promissory note for a balance of purmoney of land sold to the defendant's testator with
whatever
of the
plaintiff',
it
that
tion right to
part of the land, the failure of consideration
total,
sible at law,
The Court
act of
i
et
2 i
seq.
56*
Cushman, (Miss.)
42.
666
1
emption right before the issuing of a patent, there was evidence in the case sufficient to justify the belief that the
parties
tract
to
its
amounted
possession as
to
an eviction. 3
liaferro, 8
Heath
to
by Hyde
testator,
originally sold
part of the
ant,
who was
by
afterwards Leonard's
When
executor.
the defect of
title
nis
v.
Heath,
Craig, 2
But
this
&
Smedes
Newman,
v.
Marsh. 727
1 1 Id.
206
Id.
201
Duvall
Den-
v.
is
an
was
eviction of the
exerted himself to procure for Thisthe title to as much of the land as-
And if one
tle
alent to eviction
ceived.
and
It is
on which
suit
having a paramount
Curtis
it is
v.
title,
equiv-
Deering,
And
entry
when conveyed
taken by the plaintiff after its maturity, as there was evidence of his hav-
subject
failed,"
Sharkey, Ch.
tains
but
J.,
general covenant of
warranty, and it has often been decided that there is not a total failure
something equivalent;
Hoy
v.
Ta-
constitute
But
an eviction
States,
to the tenant,
Tufts
r.
Ad-
was not necessary that the government should resort to a suit to establish title.
Any
one
in
possession of
667
remained unrescinded.
In a subsequent case,
possession
constitutes,
and such
a
therefore,
eviction, or certainly
what
is
legal
equiva-
title,
evicted.
lent to
it.
had
eviction, as
possible
overlooked."
u.
Coo-
per, 24 Mississippi,
upon
which
title,
considered
and
explicitly established
Where a contract for the
:
" First.
sale
of
covenants of general
warranty, and
after
eviction, but
Nor
the covenants.
will a
court of
See as
to relief
in
equity, infra, p.
676, etseq.
1
Peden
v.
Moore,
Stewart
&
Stewart
&
Wilson v. Jordan, 3
Porter, (Alab.) 92.
668
THE PURCHASER
RIGHT
title
paramount
of the
lidity
title
must be ascertained by an
eviction, or
damages,
if
the statute
was but
partial.
v.
be
had
when
for
sustained
which the vendor had given, as otherwise the defence would of course be
wholly inadmissible on familiar prin-
ciples.
The
case of Frisbee
v.
Hoff-
the
the
contract
and disapproved
and the authorities in South Carolina and Pennsylvania were also referred to, and correctly placed upon
of,
this investigation.
See
White,
The Alabama
Alabama, 645.
statutes of set-off,
to dis-
such an
had himself discharged it
inquiry might involve an examination of intricate accounts between
that
so far as to say,
at Mobile,
which seems
to
669
have gone to
it
in Mobile,
fendant
when he purchased
discovered
soon
ing
it,
he offered
after, the
first
to cancel the
when
the latter
that
sion of it;
that the
mortgagee
it,
"
paid
held by
important to ascertain the period when the purchaser abandoned the lot to the mortgagee, or whether he was authorized so to do without suit, because
it
4 Alabama, 21.
may here be observed, that the
note being held by the Bank merely
2 It
be subject, in
their hands, to all the defences which
made
to
it
by the
670
equity
and
that
it
to the
1
law from payment of the purchase-money.
i
It is
reasons
based.
inquire," said Goldthwait, J., who delivered the opinion, " whether these
circumstances
afford
a reason
for
a general
rule.
There are many disbetween the rules which affect real and personal estates, which
are distinctive features of the common law, and their ramifications extend so far that no one can clearly
tinctions
foresee the consequences of overturning them. Among these not the least
In the
first
place,
the
according to
our judgment in the case of Dunn v.
White and Me Curdy,! Alabarna,G45.
Secondly, the covenant of warranty
set-off,
possessor,
and the
different effect of
or in the case of a
title
subsequently
may be supposed
which do not indeed apply to this
other difficulties
signs,
title,
grantor.
ance,
all
act,
would be more
decisive against
is
like
practice
which
an exception than
instance
the
case
of
an
eviction
are
remain
unaccounted for,
or must not the defence be denied
under the inference of our previous
these
to
judgment
McCurdy.
"
in
Dunn
Again, a case
which seems
v.
White and
may be
to furnish
stated
an absolute
671
The
failure
of
consideration
as
defence
the
to
contract
price.
test
of the unsoundness of
fence at law.
this
de-
tion,
purchase-money, the estate would descend to the heir, whilst the personal
representative would be answerable
for the debt.
Which is entitled, the
to defeat the
representative
personal
action against him on the notes, or
the heir to his action on the covenant
of warranty V
" This examination of
principles
and authorities leads us to the conclusion that the defendant has
no
is
it
avail-
asked,
whether it can be supposed that he is
remediless, in a case where injury is
We
answer that no
such consequence flows from the assertion of these rules.
Assuming
that the warranty was entered into
most perfect good faith,
in the
we think relief must be given in
so apparent ?
When
the de-
of decisions to
however
this
contrary; but
the
may
furnishes a
money which he
never refund."
will
v.
Reynolds re-
bill also
Starke
v.
Knight
ton
v.
England, 15
Mabson, 20
Id. 71
McLeHomer
more
we
are aware
v.
Purser, Id.
v.
Justice, 8
the
575
139
Id.
;
Thompson
Alabama, 793,
v.
Thus, in Cole
will
it
was
not be
purchase money, unless there has been an eviction of the subject of his purchase, either actual or constructive, they do
title
mere
nants of seizin
when
failure of title,
trial,
the de-
determining
when
constitute a defence
against an action for the consideration, held that in the present case it was consistent with every sound principle to al-
meet
it
by showing
and thereby
The
offered.
was worth
entitle
plaintiff
was good, or
less
might
differ-
set-oil' in
an action for
ure of consideration.
The
princi-
Knapp
v.
Lee,
Pickering,
459.
2
The
to
have been
same
State,
673
an action brought to
in
to a verdict,
made
in
many
was
total,
and decisions
recent cases.
to the
same
effect
entitled
have been
ble
on the covenants.
See as
to this,
infra.
Dickinson
v.
Hall, 14
v.
and the
few
With
obiter dicta in
the exception of a
provided
remarkable coincidence in
all
and English
other American
the
decis-
ions
& Denio,
(N. Y.) 174; Blair v. Claxton, 4
New York, 529 Dodds v. Toner, 3
Indiana, 427; Stack v. Me Lagan, 15
;
Hobein v. Drewell, 20
McDaniel v. Graoe,
15 Arkansas, 489, where the text
was cited Fisher v. Salmon, 1 Cali-
Illinois,
242
Missouri, 450
128
Brandt
v.
3 Thus it is observed in
the most
recent English treatise on the law of
vendors " After the conveyance has
:
title
on Vendors, 381.
THE PURCHASER
67*
the covenants
him
title
to
RIGHT
Thus,
about to sue upon his claim, when the defendit for a sum
exceeding that of the unpaid
purchase-money, and the Court had no doubt that these
who was
ant purchased
constituted
facts
Pence
v.
tan,
within
caine
the
16th
of
statute
file
forth
tion
defence
substantial
but the
Humane
297,
it
Society,
Grattan, (Va.)
not
and
this
was approved
v.
in the
Hopkins,
Id. 745.
ory
it,
Keys,
Id.
677; Leonard
v.
Bates,
172; Tyler v.
Scammon, (111 ) 445 Greg-
Blackford, (Ind.)
Young,
y.
Seott, 4 Id.
11
392
Condrey
v.
146; Morgan v.
Smith, Id. 194; Davis v. M'Vickers,
West,
Id.
327;
Illinois,
M'Kay
v.
Carrington,
were all cases of executory contracts, and of course governed by different principles from
cases of contracts executed. Burton v.
Schermerhorn, 21 Vermont, 291, was
a case of personal property, and it
was held, affirming the doctrine in
Stone v. Peake, 16 Id. 218, that a
partial failure of consideration was
no defence unless the defendant of-
McLean,
50,
save
v.
Tillotson
In
instead of taking issue.
the later case of Shifflett v. Orange
red to
Stone
Chandler
Marsh, 3 Vermont, 162 Long v.
Allen, 2 Florida, 404
Peques v.
Mosby, 7 Smedes & Marsh. (Miss.)
v.
v.
if
action.
Thus
it.
with
nection
the
to
Law-
many
student
some
It
may
the
rence
v.
So
in
by
tbe
a recent
pleaded
case
in
indorsee
of
that
consideration
its
an action
in
Indiana,
was
brought
defendant
the
note,
promissory
675
of
balance
the
the
the payee to
purchase-money of certain land conveyed by
" covenants of clear title and of warthe defendant with
that part of the land was incumbered by
and
mortgages, which the defendant, in order
judgments
to prevent a sale, had been obliged to pay off, wherefore
ranty," and
consideration
the
of
had
the note
on
it
failed.
The
plaintiff
but
portion of the consideration
for the payment of which incum-
be in-
brances, he would have lost the possession and title to the property
quired into.
The student must be careful to
cannot
original consideration
class
in
ities
be presently referred
l
Doremus
(Ind.) 368.
Perkins,
J.,
v.
will
to.
by compulsion,
of their covenants of
session,
Bond, 8 Blackford,
"
to
pay
and pos-
as a consideration,
and
that failure
and
ion,
title
in
this
case,
according
greater
to
his part."
In the
late case
of Champlin
v.
up
than the amount paid by him to purchase the land from one who had
bought it at sheriff's sale under a
paramount incumbrance
Morgan
v.
Smith, 11
see,
Illinois,
also,
201.
676
But this
the, assignment of the note.
was obviously held bad on demurrer, and judgment given
1
for the defendant.
Other cases have recognized and ap2
plied the same principle.
ant after notice of
the purchase-money, or
likely
arise
to
in
this
connection,
that
yet
unless
the
purchaser has a present right to damages upon his covenants, no grounds exist, as a general rule, on which to
may
occur,
where
the
all
rarely exercised.
The cases of
Bumpus
v.
Platner, and
Abbot
v.
Allen,
are generally referred to as leading authorities on the subof the purchaseject of equitable relief from payment
It is presumed that the plaintiff
was not a holder for value, before
maturity, and without notice.
3 Brandt v.
Fgster, 5 Clarke,
(Iowa,) 298 McDaniel v. Grace, 15
Arkansas, 487, where it was conceived to be settled that " where a
purchaser has taken a deed with
general covenants of warranty, and
there is a total failure of title, or an
eviction, or its legal equivalent, and
i
the vendor sues for the purchasemoney, the purchaser may avail himself of the
sideration,
and
resort to
on Covenants
3
infra.
gee
for Title,
these
cases
604 to
732.'*
referred
to
the
in
money,
cases, decided in
bill
the
of these
first
1
in the
injunction to
given for the purchase-money,
mortgage
all
York,
an
prayed
that the
New
In
fraud.
677
on the ground
had been
wealth, the
apprehended that
still
was no case
for
it
relief
relief.
to
plaintiff's
claim
the
plaintiffs
their
collection of the
a failure
In Abbot
v.
Allen,
the
in
principles,
satisfied of
" It
" lead to the
would," said he,
greatest
inconvenience, and perhaps abuse, if a purchaser in the
its
soundness.
2 2
in 1817.
57 *
decided
678
Can
this
Court proceed
ing claim
the
in
to try the
the outstandvalidity of
of the party in
it is
whom
absence
The only
trial
and which
is
any
ized to assume.
when
it
when
the
case depends on a
simple
and
is brought up directly by the bill.
The
title,
legal
to
be
exercised
in
is
difficult
and
only
within
its
province,
power
complicated
It
would be hazardous,
it
was
1
in supposable cases of the like kind.
equitable relief
l It
when
that
is
involved.
Such questions
in
is,
tice, for
the adverse
title in
cases
where the
right
relief
to
is
679
"
The
tion thereon.
and
'
will be his
entitled,
it
commenced
to recover the
land;"
3
cases did that circumstance occur,
damages
exists,
and
it
by no
2 Johns.
Ch. 546.
3 It is also
Chancellor Kent,
v.
actually
yet in none of these
and the general course
his
Johnson
v.
v.
in the
Gilchrist,
Chancellor
Wai worth
lowing language
that the reporter was under a mistake in the statement of the case, or
680
of decision
in
State
that
doctrine of Johnson
v.
it was not
alleged in the
that the complainants ever believed their title to the land was
has
Johnson
fact that
ity of
bill
"
pression,
allegation
v.
Where
there
a mere
is
upon an outstanding
title
there
Van Riper
Williams, 1 Green's
Ch. (N. J.) 407, to a bill for a foreclosure of a mortgage, the defend-
paid purchase-money.
so,
suit
upon
secret
ment brought,
it
will interpose."
In
v.
it
was given
for
excepting a
but that the
against incumbrances,
specified
mortgage,
to
another
mortgage,
defence of the
might submit
to
then bring a
new
new
either
action,
plaintiff'
or
entitle the
a nonsuit and
action.
And
by the
such
original
staying the collection of the purchase money until the final termination of that suit."
The
sey of
Shannon
v.
Marselis, Saxton,
413, all the parties to the title were
fied
and
much
of the
be made, or so
proceeds of sale as
Van Waggoner
v.
M'Ewen,
Id.
title,
but
and
This distinction
Ijcfunj
the rane
<lid
the
foreclosure
of
is
the
mortgage.
recognized
in the
681
cation
the
case of Johnson
non
v.
v.
v.
money
of
timet jurisdiction
And
Marselis."
case of Jaques
quid
who
seeks
payment of a bond
administrators,
equity,
for
the
in
this
purchase-
by them with
covenant of general warranty, and
of which the purchasers were in
possession, on the ground that the
money
of lots sold
when
the vendor is
under a deed with
full covenants, and there has been
no eviction nor any fraud, he cannot
resist the payment of the purchasemoney on the ground of a defect in
title, but must be driven to his cove-
and mortgage given for the purchasemoney, until a suit actually brought
to recover the premises by a person
claiming the paramount title shall
have been determined. He is not
the
to rely
The
injunction was
ett v.
M'Donald,
Howard,
enjoin
judgment
filed
(Miss.)
bill
obtained
to
by
Woods
(Tenn.)
v.
North,
309,
the
Humphreys,
circumstances
In Virginia, a practice was introduced at an early period for the purpose of enabling a mortgagee to obmoney lent without the de-
tain the
lay
bill
of
682
THE PURCHASER
RIGHT
amount
foreclosure.
time, to
pointed
the apmortgage, or
sell,
(See
at
Lomax's
Dig.
could be shown to
1
Hancock,
purchaser
claim embraced within
and a
der
his covenants,
suit
it,
moved.
and followed
Ralston
v.
in
subsequent cases
Miller, 3 Id. 49
and
606
it
Miller
v.
Kane,
569
was admitted that the Court
Long
Roger
v. Israel,
v.
9 Id.
of trust, and in the case of a judgment at law, " for it never can be
equitable to permit a sacrifice by sale
suffered to enforce a
is
the
title
may
to the cases in
where a
threatened,
or
outstanding
still
it
is
title
money
the
possession
under a conveyance,
es-
far
title
title
was defective
Ralston
v.
In Miller v. Argyle,
Miller, supra.
it was said that a distinction had al-
upon peculiar
payment of
or incumbrance.
suit is depending or
where the vendee,
under deeds of
ing the
for
in
judgment
his
tinction,
trust,
but
this
rests
This
principles.".
dis-
for
given
7 Grattan, 399.
Grantland v.
Wight, 5 Munford, 295, was a case of
an executory contract. In tin- recent
grove,
v.
Ayres, 1 Grattan, 5 75,
there were no covenants lor title as to
case of Price
683
virtual denial.
its
2
cases,
on a
chase
money
bill
in
Thus,
to foreclose a
for the
purwith warranty, the answer
mortgage given
of land conveyed
been determined
tion, relief
would
but
was held
actual
vendor to
tract,
than
it
can
suspend
enanted to be paid,
where
ings,
against
and
it."
the
collection of the
parties
have
Bates
denied to
ston
v.
Leggett
Withers
wards
v.
themselves
not
provided
both of them.
i
purchase-money,
344
594
Ch. 291
S.
v.
Tone
v.
Brace,
C. Id. 509
Clarke's
8 Paige,
Miller
see
118.
3
R.
Pl a tt v Gilchrist, 3 Sandf.
.
118.
"The
S.
C.
Court, moreover,"
THE PURCHASER
684.
RIGHT
The
and
in the
continued Mason,
the opinion, "
J.,
who
delivered
interfere
if it
and although
at
all,
the claim.
title.
This
Nor can
it
Clanton
v.
it
how dangerous
the
may operate severely on the defendant in this case, and especially if the
Rawlins
v.
Percival
v.
Kurd, 5
Coleman
v.
McDonald
Green
Johnson
v.
Id.
McDonald, 13
Id.
v.
v.
v.
Morgan,
Green,
138
445;
Latham
(Miss.) 618
well founded
Wailes v. Cooper,
Mississippi, 234
Id. 208 ; Harris v. Ransom, Id. 504 ;
the plaintiff,
Edwards
He
if
the
title
shall
prove
Gartman
v.
v.
Morris,
Ohio, 532;
moreover,. only pursuing his legal remedy for a debt admitted to be due, while the defendant
Stone
has
good.
is,
v.
Provost
leaf vf
proving defective."
Patterson
S.) 132
Buckner, 12
v.
C. C. R. 439
Jones, 24
Queen,
Id. 73.
Gratz, 3 Washington's
Beach
1
v.
Waddell, 4
Green;
685
Bunce,
Whitworth
v.
In
Paige,
r.
many
Stuckey,
allotted to
therefore,
Lew
are governed.
v.
Washington,
Car.) 171
Maner
Strobhart,
Long v.
Young
(Va.) 556
;
v.
Israel, 9 Leigh,
v.
Eq. (S.
M'Clung,
569
Long
v.
Israel, 9 Leigh,
267.
v.
bright,
v.
Geo. Decis. 98
Simmons,
Alabama, 76
Hightower,
(Miss.) 345
Smedes
McDonald
&
6
;
M'Gehee
Beck v.
v.
Witty v.
Marsh.
Green, 9
S. C. 13 Id. 445
138
Cooley r.
Rankin, 11 Missouri, 647; Beebe v.
Swartwout, 3 Gilman, (111.) 162. The
full and separate examination of the
Id.
to,
would demand
58
(Va.)
Beach
v.
Waddell, 4 Halstead's
In
Woods
v.
North,
made by
See Ingram v.
Morgan, 4 Id. 66, cited infra, p. 692.
3 See
supra, p. 131 et seg.
4 The able
opinion of Mr. Chief
misrepresentation.
Penn. R. 447,
may
v. Shorb, 3
be read with
686
and although
no har to
it is
his recovery
knowledge
doing
some
cases
where the
by decreeing
a rescission of the contract, and a return of the purchase-
money
already paid.
in a case where judgment was obtained
upon a
bond given for the payment of the residue of purchase-
Thus,
erally
on
this subject as
having more
Supra, p. 128.
2 See the remark in
Wailes
;
v.
Supra,
p. 666.
The
<-<|iiity
Thornton
v.
son's Ch.
right to assess
through the machinery of
in-
damages
a court of
is
neces-
5 Id. 194;
Coster
v.
The Monroe
Green's Ch.
Manufacturing
(N. J.) 476, and Hopper r. Linking
Co.
m>t.-.
687
under
which,
judgment,
ranty, become surety upon
the
the
use
of
the execution of the deed,
property for seven
after
hibits,
cumbrance, decreed a perpetual injunction against the judgment to the amount of the assessment and costs."
So, where after a
bill
in
which the
to enjoin
been co-defendants,
was held
it
judgment should be
that the
perpetually enjoined.
t
Shelby
v.
Marshall,
Blackford,
(Ind.) 385.
2
Luckett
(Ken.) 39.
in
v. Triplett,
2 B.
Monroe,
Vermont, of Bowen
v.
Thrall, 2
incumbrances.
The deed,
Mills
as
it
was
drawn, and as it contained no covenant against incumbrances, the purchaser had no defence at law to the
note.
intent as
considered that
if
drawn according
the same
manner and
if
to the
same
drawn
as
688
So, where on a
bill to
foreclose a
mortgage given
for the
purchase-money of land sold with covenants for quiet enjoyment, for further assurance and of warranty, the defendants
that an ejectment had
proved that the title was defective
been brought, of which the complainants were notified and
that judgment had been entered in
required to defend
and
favor of the paramount title, and execution issued
that the defendants, to avoid a dispossession, purchased this
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
title,
the covenants.
no sound objection
constitute
Court staying the complainant's recovery on his mortgage until a reasonable opportunity be afforded the
tions to discharge.
The purchaser
had a right to retain so much of the
defendant to ascertain
purchase-money as was
at law,
sufficient to
his
that
to the
damages
amount
to be offset.
suit
at
until the
moved.
1
Coster
v.
(N J.) 476.
" I
confess," said the Chancellor,
turing Co.
" I
Which
to ascertain the
the case
attending
of these courses
but
it
would
should, as a general
rule, be referred to a master, unless
the complainant requires a trial at
seem
to
me,
If the
law.
it
court,
cannot
doubt
its
The
propriety.
the difficulty in
great objection is
this court undertaking to settle unli<|iiilated
damages.
know
this is
justice, settle
which
master.
To
is
by reference
settle the
to
damages, and
But
per
in the
v.
filed
him certain
mills
and wutrr
rights
New
689
in
proceedings
bill,
partition
to
Even
iink'innify the
come
adverse suit
complainant against an
brought by an adjoining
defendant executed
owner
to
him a bond
to
at law,
to
it is
result.
often difficult to
I
overflow of the
case of Johnson
the
and was
consideration-money,
It
speedily becoming impoverished.
was a part of the complainant's case,
were
to
have been
drawn
but
this
The Court
in the bill
but that
"
To
v.
me
to the
is
deprived, by a trial at
it
can be
carry out the relief sought, the injunction must continue until all the
tain
this court to
power
court,
to
control.
know, as the
is
beyond
How
can
58*
its
this
its
satis-
this
and adjust
all
maintaining the
may
dam in
complainant
sustain,
by
question at
practicable, in
to do so with
my
any certainty. It is
true that the same principle pervades
is
not.
this court
THE PURCHASER
690
RIGHT
dor's covenant.
is made
by
which the jurisdiction of equity may
v.
Monroe Manufacturing
how
First,
covenanted a
title
to the lands or
and the
same has
failed,
title
as cov-
third,
where there
Poling, 6 Barb. S. C.
-eee
as to
Fowler
v.
The Revised
Statutes, (1845, c.
Sec. 1. "That in all
82), provide,
where there shall be a sale
.cases
transfer of
and
estate,
and
sale,
shall
be entitled to an
have power
under this act
to
grant injunctions
but no such injunc-
Sec.
3.
In
all
thereof.
make a
ing to
final
such
to exist
in,
failure, as
the
title
to said lands or
601
There have heen exceptional cases which seem to determine that although an assertion and prosecution of an
adverse
title
may
ground
to
entitle a purchaser to equitable relief, yet that such an assertion and prosecution, when coupled with the insolvency or
non-residence of the party bound by the covenants, form,
So
was
their intestate,
insolvent.
in a case in
Kentucky,
where a purchaser's personal representatives filed a bill
against the vendor to enjoin the collection by him of a
judgment obtained for a balance of purchase-money due by
" Sec. 4.
The amount
to
be en-
student
such
title
able
any
of
shall
" Sec.
to
not covenant a
title in
fee-simple to
" Sec.
cases
bond
for title
to the
lands or real
same manner
as
v.
Hurd,
v.
House, 6 B.
Svvartwout, 3 Gilman,
Vick
v.
Percy,
(111.)
Beebe v.
177, and
al-
of covenants for
154
decided under
O"a.) 68
this statute.
5 J. J. Marshall,
McLemore v.
Alabama, 139 McGehee
Mabson, 20
v.
title.
Avill
in Percival
chapter.
2
et
title, in a preceding
See supra, Chapter IV. p.
seq.
Stockton
v.
Cook, 3 Munford,
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 the complainant would be without relief, but
that his vendors
were admitted
to be utterly insolvent,
and
was held
it
that an in-
Jones
v.
Waggoner,
7 J. J.
Mar-
" If the
appel" had a
the
Court,
lees," said
legal
right to the damages for which reshall,
(Ken.) 144.
the State,
is
sought by them, the admitted
insolvency of the appellant gave
said,
(covenant)
from a covenant of warranty where
there is no present right of action,
and can never be till eviction, which
may never
lief
who,
when he had
by
it,
take place
and where,
of the
consideration, on
the joint
and the
ground of a defect of
tract
2
(Tenh.)
seemed
to
The
in
Cullum
v.
p. 668.
Court, however,
225.
roe,
66.
title
Clark
v. Cleghorn, 6 Georgia,
In Vance v. House, 6 B. Mon-
(Ken.) 540,
it
is
said,
"
bill
693
in a recent case in
North Carolina,
it
in an action of covenant
chase
money
remedy
vendor
to its
payment
that the
first
immediate or ultimate
without
loss,
legal remedy, by reason of the defects in the title conveyed, and the
vendee to protect
against eviction under it.
to sustain such a bill after the
inability of the
creditor, in
himself
their
And
The Court
plainant.
of the opinion that the
the
Bunce,
loss exist."
See
remarks in Woodruff v.
referred to
were clearly
arrangement
must be regarded as an
that
knowl-
its lien,
and
his deed,
it,
on the
ground that at the time of the purchase it had been agreed between
the vendor and the judgment creditor, that the notes to be given for
the vendor,
to
faith tow-
Green v. Campbell,
(N. Car.) 446.
J
Jones' Eq.
694
mount
title
or incumbrance,
it
or incumbrance, give to
title
threatened,
that State,
was
in
children,
and
there
filed
was an outstanding
bill
title
in
minor
So
impossible to assimilate the case to a bill quia timel?
4 it was held that if the
in a case in
insolvency of
Kentucky,
the vendor were to be a ground for equity to interfere, still
a chancellor ought not to go farther than to the extent to
which a court of law would do in assessing damages for
If equity could interfere by reason of the
part lost.
of
the
warrantor to arrest the payment of the
insolvency
the
Latham v. Morgan,
Marsh. Ch. 618.
1
The
Smedes
decisions referred
to,
&
how-
Smedes
v.
&
Maner
hart's
breach of
sibility
his
of a
bill
quia timet.
Wherever the
upon
i-qui-
covenants of
4
Rawlins
his
v.
deed
for redress."
Timberlake,
B.
695
show
the covenant of warranty broken, and by stopof so much of the purchase-money as was
ping payment
So in the
incurred by the breach.
equal to the damages
same State, it was held that the admitted insolvency of the
vendor was no ground for an injunction where one of the
paramount owners,
of
all
whom
his
where a purchaser bought with a covenant of general warof his deed, that a
ranty, and finding after the execution
complete chain of
title
defective
title,
and
in
a subsequent
filed
bill
the
bill
ground of the
of revivor against
will
be of course remembered
is
only broken by
et se.q.
And
in
in
mount
title,
tute an
was
sufficient to consti-
eviction.
Such a doctrine,
Wiley
v.
Fitzpatrick,
Marshall, 583.
See
J.
J.
suf-
Patton
Id. 219,
Gouverneur
v.
v.
Allen, 2
Elmendorf,
cases
in the un-
remedy
at
his deed."
p. 699.
132.
was not
3
the Court had no doubt.
to it;
it
decree
the
it,
Bumpus
v.
Plainer,
souri,
souri, 433, a
purchaser
filed
bill
to
THE PURCHASER
695
RIGHT
or
made of
their
non-residence seems
tucky,
circumstance.
material
upon a
bill
praying
vendor for a balance of purchasemoney of certain land sold with statutory covenants for the
title,
alleging
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 possession, but the proof
as to the vendor's solvency was somewhat contradictory, and the Court
that the vendor's
title
and the
just
his abil-
they were warranted in requiring a stay of the collection of the debt, until the vendor
ity to
pay
his debts,
should give a bond with security indemnifying the purchaser against any
loss
of the defect of
title.
The
facts in
this case
The
in
Ken-
2
against a judgment for
relief
after
it
also
Hupp
v.
Hupp,
6 Grattan, (Va.)
310.
1
Morrison
v.
by him
made
by representations made
in
Jaques
v.
Eslcr, 3 Green's
6Q7
was willing to
paid, and the mortgagor
to receive it
refused
but the mortgagee
and the
who
it
bill
till
made both
the mort-
it
was
junction; but
if
a part of this
money
mutually
complainants
have prima facie shown a ground for
coming into a court of equity, the
for
respective
rights
"
adjusted.
ceive not.
and
can be
the
granted, the
forever keep the
If that
complainants
estate
As
may
is
the
money
59
is
to relief as to
their
security.
the mortgage,
estate
it
will
mortgaged
is
By
inspecting,
is
a well-
known
tion,
THE PURCHASER
698
filed
RIGHT
chasers and
the mortgagor, if he
proportion of the estate
himself, such portion must first be
subjected entire. If it discharges the
holds
the
money from
it
refuse
every part equally, that the proportion of that balance which will fall
secure
to
it,
injunction.
ants, then
be ascertained
before
clearly perceived
it
can
what redress
is
be
to
also of the
value of
to the
not
they have in their hands, now claimed by Churchill. But if Cosby has
not parted with the whole estate, but
portion may be more than equal to
the discharge of the balance due on
the mortgage ; and these facts must
is
estate
the
If the obstruction
thus removed, and Cosby shall retain at this time a portion of the
still
he must be compelled to
execute to the complainants a mort-
But
contest,
for
perpetuated in
Chili-chill
699
ground
insolvent,
for against
express ground that no decree had been prayed
those heirs, and that all of them had not been served with
1
process.
it
was
held, after
much
consid-
by a conveyance.
sable,
But
that if there
had been no
eviction,
it
all
as indispcnthe parties
which could
purchaser from
cannot be granted
suit, as he has not
the
in
Cosby.
him
to
entitle
place of a
But
in
him
defendants.
this
this
to
His claim in
this respect
to that
as
if
he thought proper, so as to
J.
Fitzpatrick,
The Court
Marshall, (Ken.) 582.
held that had
the complainant
Wiley
v.
J.
to insist
all
Simpson
v.
Hawkins,
Dana,
(Ken.) 303.
J.,
complainant's equity to
"
rescind the contract.
Regarding
as
to
the
THE PURCHASER
700
The
RIGHT
we cannot concur
contract.
Indeed, where contracts
are executed by conveyances, we
are of opinion that there can be no
rescission of a contract in
unless
fraud.
it
any case,
has been tainted by actual
been
vendee to damages, or if the vendee
be entitled to damages upon a covenant of seizin, he may apply to the
Chancellor, where the vendee is insolvent,
to
against
the
set
off those
damages
is
He
insolvency.
Davis
v.
(Ken.)- 341;
Logan, 5 B. Monroe,
Denny
Metcalfe, (Ken.)
22G
v.
WickliiVo,
Shannon
v.
common-law
but in the
elsewhere,
the
courts,
expense of the
Elmore,
it
Since
vendor.
became
the
case
Furman
of
South Carolina,
v.
that
Hence it was
considered to be necessary to its breach.
held that if a purchaser, when sued for the contract-price,
could establish to the satisfaction of the jury, that he took
nothing by his purchase, and that he would be ousted by
the paramount title, they might find a verdict for the defendant, not on the
was a
failure of title
damages on the
the purchase-money and
tanto ;
there
Gray
and such
was another
v.
is still
class
Handkinson,
in
5
1792, established the doctrine that
either
Such a
Whitworth
v.
doctrine, which,
Stuckey,
Rich.
hart's
v.
v.
But
beginning with
Cureton,
Gillam
;
might be
was
it
held,
by a
to the
pur-
by a
rescis-
in
posses-
was a
sort of
still
3 Farrow v.
Mays, 1 Nott & McCord, 312 Hunter v. Graham, 1 Hill,
370 see Van Lew v. Parr, 2 Rich.
;
Farrow
v.
p. 702.
Mays, Furman
Van Lew
more,
59*
5 1
Bay, 278.
v.
El-
v.
Parr, Jeter
v.
THE PURCHASER
702
RIGHT
law as in equity on
equitable defence, cognizable as well at
the ground of fraud, continued to prevail until the year
1 829, when the Courts
began to retrace their steps, and by
a series of decisions
Carter
Bordeaux
brook
v.
v.
v.
Purvis,
Hill, 326,
kinson
known
2
was
where
Gray
an
v.
it
Van Lew
was
Hand-
interpretation
to the common law.
Per Johnson,
case of
un-
Parr, 2 Rich.
title,
was no defence
to
the
plaintiff's
claim.
3
Thus,
in
Evans v. Dendy, 2
and Rogers y. Horn,
could
more
question
can be
how
set
far
up
an outstanding
title
as a defence at law,
than for anything else. " The defence at law, before eviction, proceeds upon the ground that the covenant of seizin is broken by a want
Spears, 10,.
6 Rich. Eq. 362, such a defence was
refused, because, in case of a sale by
of
an ordinary or a commissioner
Collins, 2
in
title
title in
Nott
& McCord,
186,
it
703
The
this
statute referred
to,
This was in
conformity to the previously adjudged and well-considered case of Furman v. Elmore, then
limitations
tial
Where
1st.
money.
failure of consideration, as
where
unpublished, and
apparently unknown to the bench or bar, but
& Me Cord,
to light
Mackey v. Collins,
189.
The same
2 Nott
principle
was
af-
and many
others, there
is
a good
and, as
is
decided in Farrow
v.
Mays,
& McCord,
Nott
opposite
party.
is
when they
Mackey
Johnson
But
v.
v.
Collins
was reaffirmed in
in that case,
rata value of
the pro
the
land
title, esti-
the land thus taken off in the purFurchase, to the land remaining.
man
the grantor
when he
In such case,
acquired no
no
the
title,
sold, had,
title to
or
the land.
vendee, having
has of course no
hence
it
may be regarded as a
nuflum pactum, and the vendee thus
relieved at law. In such a case, as
contract,
'is
said in
Farrow
v.
THE PURCHASER
704
RIGHT
hy
up by way of
merely lets the
defence under a notice
The
discount.
set
act
In a suit on a
specialty, therefore, it would seem
the more prudent course for a defendant
with legal rules,) to regard his covenant of seizin as broken to the whole
The
third class of
title,
contract.
The
case of
Gray
v.
Hand-
satisfied,
that case
by
failure of title
chase
money and
a case there
is
interest.
no necessity
for
an
vendee
liable to
is
For
the owner of
profits.
possession.
Ilirh. 52.
cases
are, regarded as
constituting
still
legat
In
a court
fence
is
is
ascrib-
The
State
v.
;i
705
tract, with
that
they had
failed,
inasmuch as
was
titles,
He made
bond.
At
last,
when
sued, he suc-
The
sold.
At
awoke
to re-
It
brook
deaux
Cave, Id. 250, and WestM'Millan, Id. 259, undertook to retrace their steps. In those
v.
v.
ranty from the price paid, in addition to the legal covenants of seizin
where the
was executed by
the delivery of titles and possession
to the purchaser, and he had not
been evicted, that for a failure of title
others,
relief in a court of
equity.
without resorting to the wild doctrine, that there was an implied war-
These two
many
may
Commissioner in Equity
R. Pearson et
v.
Robert
contract of
sale
The
rea-
vendor had
title,
conveyed
al.
Per-
ry,
tainly true,
take place.
The
THE PURCHASER
706
paid,
the
1
elsewhere
is
there
referred
the
as
to
prevailing
and enforced.
recognized
fully
RIGHT
maxim
In
of caveat emptor,
was adverted
Dorthe
on
his
Jackman,
plaintiff,
sey
paying
purchasemoney, took from the defendant, his vendor, a mere assignment of a commissioner's deed under a tax sale, and, on
to
and
in
v.
which
is
in accordance
with
all
v.
M'Millan,
v.
Purvis, 1
Carter
ions in
y.
Carter,
in the case of
Hill, 326.
J., said
'
:
Johnson
The
first
Bordeaux
ground of
this
is founded on a misconception
of the cases of Carter v. Carter, 1
motion
Bailey, 217,
250,
ally fallen
sideration,
that
perfect
exposition
the
also
cases noticed in
O wings,
am led to conclude,
impression is not unusual
that want of title in the vendor of
bie
Caines* Lessee
to these cases, I
that the
brought at law to recover the purchase money. But these cases incul-
of the
rule
as
settled
v.
v.
v.
2 Rich. 127.
See supra,
Boyd
Means
and Abercrom-
p. 614.
Bopst, 2
v.
Dallas,
Henderson,
91
Bin-
ney, 108.
3 1
Serg.
4
The
&
Rawle, 42.
plaintiff
without covenants,
is
an immaterial
to.
under such circumstances, 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.
v.
3
Witman, decided
in
1815
the leading authority in Pennsylvania upon the point of detention of the purchase-money. The defendant's intestate having
and
in
mount
'
his covenants.
The admission
by the plaintiff, on
the Supreme Court, that to
for error
whose behalf
make him
it
was urged
liable
in
beyond the
all
distinction
delivering the opinion of the Court, admitted that this argument was not wanting in plausibility and even in strength,
and that if the question were entirely a new one, it would
difficult to
give
it
Kerr
708
law of the land.
offered
if
hy
The
plaintiff
the defendant
had agreed
to convey,
make him
title
There
title.
is
a dictum
1
purpose by Lord Commissioner Rawlinson, and the
point was directly decided in an anonymous case, 2 Cases
2
in Chancery, 19
The case of Tourville v. Nash, 3 is also
worthy of consideration, although not directly in point.
to this
There the purchaser paid part of the money, and gave bond
After giving bond, and before payment,
for the residue.
he received notice of an equitable
it
was held
lien
The dictum
thus referred to
an anonymous case
106.
bill filed to
chaser, on the
in
is
in
Freeman,
relieve a pur-
ground of a fraudulent
representation of value, was dismissed
because of his laches, " and a case
was cited by the Lord Keck. A purchaser brought his bill to be relieved
where incumbrances were concealed,
but was dismissed, for he ought to
have provided against it by covenant;
but it was said by llawlinson, that if
the purchaser had in that case had
money
This case (which has been already cited at length, supra, p. 615,
has always been deemed as of doubtful authenticity and authority, and
consideration
Lightj
r.
Penn. R. 451.
33 Peere Williams, 807.
been said
moment's
Shorb, S
709
But the
was no defence
by the
princi-
court of equity in
Pennsylvania gave
3
through the medium of common-law forms.
Such a practice would fully account for the application,
ble jurisdiction
Steinhauer
in
case, of
1 It
suit for
Nash, that
the contract was not executed, but
nant which included the lien in question, equity could not have relieved
or other
ment, I expressed
since the
my
ideas fully of
American Revolution.
asserted the
general understanding
money
is
is
a locus
paid."
the
on Equity
to
title
or where
(either
it
by
might
special contract,
fairly
be inferred,
60
in Pennsylvania, which,
although written before he was admitted to the bar, has been always justly
regarded as not less remarkable forits
accuracy than
its
elegance.
710
The
tracts.
difference
law and
The
equity, solely by
therefore, of the doctrine of Steinhauer v.
in
effect,
Witman, was,
as
v. Jackman, to give to a
purchaser greater
a
defendant, than he could have as a plaintiff.
rights as
In the case of Hart v. Porter's Executors, 2 which followed
case of
Dorsey
considered as settled.
was unanimous,
must be
it was not
the law
had taken pains to ascertain what had been the understanding and practice in this State, for a great length of
I
time.
Being
at length
among
founded on defect of
title,
special
even
war-
to oppose a
to equity.
principle in which there was nothing contrary
Indeed the objections to this principle are not founded so
much on equity, as on policy and convenience. For where
receive
See supra,
p. 611.
25
Serg.
&
title,
although
Rawle, 201.
711
he
intent
may
at the
fairly inferred,
made no
it
in
was
er-
provision against
his agreement."
i
In Hart
v.
meaning.
We
to consider
whether
dower
in the wife of a
to rebut
in
which the
former owner,
plaintiffs offered
band and
herself,
commencement
subsequent to the
which the
of the suit
that
it
if it
myself bound,
therefore,
hauer v
now
right of dower.
title,
title,
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.
to us," it
appear
why
charge was given, if the release of
dower given in evidence by the plaintills was effectual.
Perhaps, there
said,
We
same
trial.
What
is
to
be done in a
the present ?
The outstanding title of dower is notorious,
although no suit has been brought on
case
like
What can
it.
the defendant do ?
He
money
of having
make
it
session
to-morrow
Is there either
is
there
it
may be
THE PURCHASER
712
The
principle
announced
title
But
be defective.
it is
Steinhauer
in
in
bet-
and en-
RIGHT
many
ture
shall
may
may be
it
do it.
Considering then that it
was decided in the case of Steinhauer
to
v.
Witman,
self
and
be cultivated,
must be considered by
What is good
justice.
for one,
has
courts of
Witman
subsequent cases,
v.
under a defect of
title,
where
part of his purchase has been evicted, although he has accepted a conveyance with no more than special
article of
fers are
of
unsettled
are brought for the recovery of purchase-money, and discoveries are made from time to time of
many suits
yet
in
practice,
a defence
When
another
the lands
now
It is
who
can
have recourse
Where
to
the
seller.
it is
not
perceive
why
the
and
for
the record, a second trial must, therefore, have resulted similarly to the
first.
This case should be read in
v.
Hunt-
713
may
in
The reasons on
distinction.
which the Court proceeded, in a sher-
iff's
sale,
" Steinhauer
v.
understood.
It
Witman
is
said
not well
defects
such
iff's sale,
v.
It would be manifestly
there said, to release the
purchaser from his bid, on account of
a defective title, the very cloud which
the creditors.
unjust, as
is
obscured
The
title
purbefore
to its validity.
execution will be
stinacy.
is
title,
by
as
not inquire, he must suffer for his conand if the defendant in the
fidence
his title,
it
silent,
is a
and that the
judicial sale
principles which govern the one are
As in the
applicable to the other.
debt,
between a sale by an administrator, and a sheriff's sale; between creditors, and the. defendant
in an execution, and the heirs of an
intestate.
The law recognizes no
land
is
order
difference
60*
the administrator
is
who makes
the sale
it
and receive
the
The
The
in pursuance of their
must be returned to them
sold
title
is
the purchase-money, by reason of a clear outstanding defect or incumbrance, unless the intention was that he
was
to
it.
Such an
intention
may
be either
The
seem
cases
classes.
First.
Second.
and no covenant.
Where
Third.
there
is
a covenant against a
known
defect
or incumbrance.
Where
First.
is
unknown
to
chase
money
With
respect to
brance, although
it is
title, either for himself personally or the heirs and it is understood that the one sells, and the other
;
title
as
it
is,
was
The same
and as
was
Watts
&
Fox
But
it
v.
man
tives of
Mensch,
justice;
is still
the
Serg. 446,
it
also enforced in
subsequent cases of
be deemed an ab-
ranty of
buys the
will
and from
this, it
would seem
It
is
715
executory as to the unpaid purchase-money, yet this expression must not be understood to mean that a purchaser will,
after the execution of his deed,
purchase-money
in every case in
to decree a specific
performance by him.
must
incumbrance
be
lawful,
as
pay
" as
said in the latter case,
showing
failure of 'consideration, or a defect
chase
possession."
his
title,
is
certainly different in
chase money.
Here,
it
is
sufficient
that eviction
may
Woodward,
J.,
who
delivered
the
"
eviction
would be against
so
the
in the
it
R.) 200.
l
case
in either
viously
to the
$2,470.
veyed
mortgaged
by the
vendor
to the
to indemnify them
mortgage, and the defen-
order
ises,
in
from
this
whom
THE PURCHASER
716
1
chaser,
it
will not
chase money.
consideration," said
nedy,
" that
who
delivered
the
is,
loss
relied
payment of
it
to
this
defence,
must
it
be observed,
entitle
is
themselves of
shown
that
preventing
losers,
or giving up
that
which of
But in
May, 182G l the time when the land
was sold to pay this mortgage-debt,
the loss of the land to them.
upon
1823,
the
defendants
owed
and
sufficient to
have
satisfied the
RIGHT
mort-
be
Bank incumbered
the
land, which
on account of it.
Had they
done this, they would then have had
and held the land discharged from
all incumbrances, and would have
been entitled to a credit upon their
bonds equal to the amount so paid.
And this would have protected them
completely from all loss, either by
means of the land being sold from
them, or having had to pay money,
sold
at that time,
have
paid
mortgage-debt to the
Bank, and the amount of the bond
in suit, they ought to have applied as
much
of
it
as
dis-
which
it
should be so
it
Bank
it
is
debt,
no more than
fair to
it
in
Thus
& llawle,
717
defendant to
deduct
found
with stay of
been obtained.
Motzer, 13 Serg.
Culler
v.
&
is
vendee
the
ful,
bound
to
will
not be
held
it
Stoddart v. Smith, 5 Binney,
365 (and see supra, p. 612), unless
it should also appear that he had exDorsey v.
pressly agreed to do so
for
&
42
Penn v. Preston, 2
Rawle, 356
" I do not
Rawle, 1 9
wish," said
Jackman,
in this
(for the point actually decided
case, see supra, p. 706), and these
v.
to
Pennsylvania
Serg.
v.
Rawle,
Simms, Addison,
9 ;"
rior title outstanding in a third person, when shown clearly to exist, and
by virtue of
it,
will not
v.
Murphy,
validity.
tice
that "
risk
such
it
must be clearly
be indubitably good, and
that the land is actually claimed under it.
It is proper, however, to
in
shown
observe
cases
to
that
a different
principle
to
a^man
pay
be compelled
which he has pur-
will not
for lands
chased, though
even with
general
cation
pointed out in
Ludwick
v.
Huntzinger.
The
distinction
noticed
in
that
THE PURCHASER
718
RIGHT
not allowed
is
on
this
ground
the
by
al-
et
seq.),
a greater
than the language of some of the
earlier cases would seem to imply.
" If the vendee
discovers," said Mr.
Justice
Kennedy
in
Moore
v.
Shelly,
an exe-
if it
to
a defect of
or outstanding in-
title
the value.
It
would be no absolute
and
sufficient title,
Rawle, 201."
Magaw
the
upon
proceeded
v.
Lothrop
principle
in
that
discharge, he
cree.
Where, however, the incumbrances are not removed until after
do anything on
carrying
it
his part
into execution."
towards
So
in
Serg.
&
Atkinson,
Rawle,
1
is
en-
Kelly,
13
purchaser
Poke
165
v.
j
Withers
v.
Watts, 248.
claims,
Withers
well
v.
land,
Gans,
and
which
pra,
p. 123.
and
to
claim to be releasril
7*9
but can only defend pro tanto^ and the measure of damages
the jury as tenable, in connection
with the, evidence of the value of the
chase
ever,
money.
is
This
purground, how-
untenable.
purchase
was carried
when
into execution,
the
cumbrance
late
and out of
all
The
full,
as has
This,
been shown
vania Bank.
considering
insist-
such case
The
any
and confirm
it
to the fullest
extent of
the incumbrance,
to
money
of the
It
as the
it
maxim
volenti
of law in
non Jit
injuria.'"
hands wherewith
still
to discharge
is bound to do
up the loss of the
property as a defence in toto, was
in
also recognized and enforced
M'Ginnis v. Noble, 7 Watts & Serg.
the ineumbrance, he
so,
and cannot
set
THE PURCHASER
720
which he
will
purchase-money
be entitled to
is
the
same
v.
Appeal, 8
R.)
127.
defalk
money of
own,
just that
title to
"
The
unpaid
ration, for a
but the
against the
as that
RIGHT
it
But
will
further
equity interpose
We
justly complain
think not.
that he
is not
permitted to obtain
land for $750, for which he
agreed to give $3,000. In both cases
a court of equity relieves to the ex-
must be
purely equitable, and
what would a Chancel-
tion
Court
said,
remembered,
the inquiry
is
defence,
it
is
lor
be placed
in the same situation he would be in
is
to
had he paid the incumbrances without suit and in that case, it must be
admitted, the measure of equitable
relief would be precisely the money
;
He
the other.
is
The
total in
the one
justice
amount
incum-
is
in-
by a judicial process a
had purchased, no blame
would be imputable to him; the defence would go to the whole conside-
with.
at the sale
straniftT
t>.
that \vhcic the, vendee himself lecomes the purchaser at the judicial
nants for
With
721
title.
what
respect to
will
sale,
lie
remains
liable to the
ven-
covenants for
may produce
relative value
away bears
at the
title is
and according
to
applicable here,
as
J., in
Mor-
ris v.
In Lee v.
Wharton, 331, Judge Ken-
the conveyance.
to
ties
Dean,
Thus
in Steh-
mer
tavern to one purchaser, and subsequently sold the mill property to another.
The
latter
had no notice of
easement
his
pur-
was affirmed on
this instruction
error.
So
v.
in the re-
McKeen,
it
was
61
is
to
S. P. in
question in Stehley
500, though the case
reported
that
the
v.
Irvin, 8 Barr,
is
so defectively
point
ruled
is
strained whilst
was
jjone into."
722
Miller,
now
In Roland
considering.
v.
subject,
it
was argued
it
it.
The
was
within
the
Steincase then fell,
said,
authority of
So in a very recent case, 3 it was held
hauer v. Witman.
view
old
deeds, which
contained a ref-
channel of the
Had
title.
been
1
irresistible.
Banks
v.
Ammon,
3 Casey, (27
giving
found
4
Citing
Fuhrman
v.
Loudon, 13
(17 Penn. State 11.) 433, the purchaser accepted a deed which express-
its
it
absence of evidence
in the
to the contrary,
tn/ra
>
P-
723
Where
Second.
there
is
known
723
defect or incumbrance,
1
and no covenant,
it
is,
covenants for
the risk of
title,
it, is
the contrary,
purchase-money
under any circumstances into which fraud has not entered
and in the enforcement of these principles, equity follows
;
the law.
It
Supra, p. 613.
In cases of sales by
damages,
sheriffs,
com-
his notice
cannot prejudice
But un-
missioners,
er,
table
and the like, the purchasfrom the very nature of the trans-
action, necessarily
buys at
own
his
Friedly
v.
Scheetz, 9 Serg.
&
ton
r.
Barry, 4 Watts
&
Serg. 184,
there is a de-
Voorhees,
Watts
&
Serg. 357
see
supra, p. 524.
3 In either of these
cases, whether
there are covenants or not, the fact
of the purchaser's notice is one wholly
immaterial
as, if
he be entitled to
man, there
is
a locus
v.
Wit-
peniienti.ce, until
Hence must
the money is paid.
arise the question as to the real nature
of
parties,
must necessarily
that
THE PURCHASER
724-
RIGHT
it
defect,
5 Serg.
p. 710,
ruling by
v.
Woodward,
J., in
Murphy
him with
prove an
sale,
to
of
ant's
title
for
having, after inspecting it, approved it by accepting the Seed conit to him, and
thereupon giving his bond for the purchase-money
and if the purchaser took no cove-
veying
nant
for
strongly to
was
" it
protection,
goes
that
he
prove
agreed, and
his
at his
own
risk.
gained
wards
by reason of a
in
relied
soundness of the
8
" In Hart
title.
v.
Lighty
v.
Chief Justice,
where a purchaser knows of a defect or
risk
ment
of
it
on
himself.
to that effect
is
An
intrnd-
consistent not
The
case of Drinker
725
only with the reality of the transaction, but with the analogous principle
of Vane v. Lord Barnard, Gilb. Eq.
Rep. 6, in which the purchaser, hav-
known
the
to detain the
him
at the time,
from the
Not only
wards, there
only.
is
for
last,
were aware
of;
chosen your method of security yourself, this Court will give no other,
is
and
therefore,
pose, that
maining
it is
reasonable to sup-
my Lord Barnard
would
an incumbrance that
was but contingent, to the prejudice
of his eldest son." In Beidelman v.
arose
his
and Lord
daughter's marriage
" Notice or no notice of
said,
;
Cowper
this
in this case
in this
into, is already
61*
cure
against
evidence.
the
by
of the
sixth,
who
Penn. R. 528.
THE PURCHASER
726
RIGHT
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 prethat he, the vendor, believed
sums
in their defence.
Notwithstanding
was,
it
was objected
purchase-money in case
unable to recover the
disputed ground from the defendant,
but on the contrary, paying two thirds
he should
-be
suit.
agreeing positively to pay the remaining third on the death of the widow,
terested in
But on
the
event of the
writ
joyment of the
now
privilege of
which he
is
in
merged
all
prior articles,
it
was held
title.
is
is
show
to the consideration
was intended
named in the
cum onere.
did not
mean by
the expression in
Lighty
.there
the
to be in addition
may be
cases (and
Drinker
y.
Byers
where the
acceptance of a conveyance will be
comes within
this class)
in Colvin
226,
where
it
was
said,
" It
is
argued
none.
Generally, we presume that
the contract to convey is merged in
title, is
case
clearly
of
Seitzinger
may
be
merged.
else that
together."
there
is
injury,
a covenant against
this
very
and
that
the
not merged."
it
is
found
728
Wolbert
v.
mortgage
to be given
that she
herself.
would be
The Court
below charged the jury, that the only question was, whether
the defendant
knew
she purchased
plaintiff,
the
the judgment,
and held
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
to the jury.
was bound
10 Barr, 73.
student may, very naturally,
here recall the words of Mr. Chief
2
to
show
it
satisfactorily
The
doctrinc
is that it
subjects the contract to the control of a jury, prone
to forget
that
from his
bargain
to
cut a
man
loose
from motives of
humanity
Supra,
is
the
rankest injustice."
p. 724.
gage.
As
this
decision
has
The charge
729
made
among
it
report
Moliere, the
case.
Bank
North
of
America
for
gaged
plaintiff
and defendant,
three heirs
in
two of
as
intestacy.
On
the
26th of
the premises by a
consideration was ex-
of
part
deed whose
a special
and
At
the
mortgage to the Bank had been reduced to $1,667. The first instalment
was regularly paid. Afterwards the
payments were
To
Nov.
Feb.
Nov.
To
the Plaintiff,
....
20, 1840,
$800.00
15.10
11, 1841,
....
20, 1841,
805.00
the Bank,
....
$100.00
200.00
400.00
1840,
Aug.
Jan. 15, 1841,
5,
400.00
500.00
Aug.
O.ne third of these payments to
the Bank, the defendant claimed to
deduct from the balance due on the
plaintiff's
ness,
who
make
her to
the
purchase
that
80.00
On
cross-exami-
stated
that
the
she
defendant came three times
said she would pay the claim of the
Bank
who swore
it
on
herself,
what
the plain-
she
Mr. Moliere owed the Bank
said the plaintiff was to have $3,000
She
that she
made
tiff
finally
THE PURCHASER
730
RIGHT
But
cited.
and
it
is
it
obvious that
would seem
to establish
notice of an incumbrance,
is
price
for
it
it
the
was not
to
the $3,000.
Upon
this
evidence the
if
the jury
Supreme
favor.
circumstances to Wolbert
v.
Lucas.
In Poke
v.
were one,
it
" there
The
Exrs.
u.
Gillam,
turned upon
the vendor.
Harris, 340,
misrepresentation by
There was a defect
of
title,
also
the unpaid portion of the purchasemoney, and in such a case the onus
lies
on the vendor
at his
own
risk."
to
show he bought
This,
it is
apprehended, he can in general do, by
is
not to be
the jury as a
left to
agreed not to do
The
decision
so.
and
cumbrance
principles must,
contract,
as, in
it
an executed
to
it is
expressed ;
while
the
contract
is exright,
with
to
known
defects
of
respect
ecutory, applies equally
title
Such a
distinction
much
was expressly
" This
case of Lighty
relied on.
v.
is
not
Shorb, so
was on the face of the title, purchased by the defendant, and the maxim
of caveat emplor entered.
Equity
would not interfere, because it
would have been changing the terms
of the bargain.
This case
is
very
different.
could in any
tion
named
in the
sive evidence of
amount, as such is
neither the law of Pennsylvania, nor
does
it
its
generally prevail in
this
coun-
try.
also
be referred to in
this
connection,
wards agreed
to
He
after-'
to succeed to all
purchase-money,
and who subsequently, by a verbal
arrangement, transferred to Marshall
&
Kellog
the fixtures.
&
the land,
of sale to them of
and made a
bill
Lyman and
Marshall
THE PURCHASER
732
RIGHT
itors,
assignee
of the
former
not
suffered
by
Kellog
consulted counsel,
were not
liens
who
the time of their contract with Lyman, his firm had notice of the judgments recovered against Patterson,
but not deeming them to be liens on
the land, he disregarded them. It is
obvious from this, that neither of the
parties
either to the
Marshall
cide
for
&
judgments were or were not incumbrances; and never dreamed of lookguarantee them
vendee relied on
See Smith
It
may
so.
The
case presents
it
then, should he be
Why,
made answerable
v.
the student
may recur
a recent case
more to
would an
have been
latter."
own judgment
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-
Lyman
ing
against a mistake in this particular.
But apart from the direct proof, the
to
his
cases, the
to
'
incumbrances
for
principles
mony
and
to
in har-
safety
case to precedent
8 Barr, 55.
1
keep them
Good
v.
Mylin,
Lukens
y. Jones, decided
by the
Court of Philadelphia CounDecember, 1859, 17 Legal In-
District
ty in
trlliguneer, 36.
"
763
Third. While, on the one hand, the absence of a covenant, including a defect of which the purchaser has notice,
the opinion, " was on a note given
the
for the purchase-money of land
bee"n purchased,
and agreeing
to
pay
quently to a
we
If
money.
of the Judge
to instruct the
tried,
the
its
date, which
period at
the ground-rent
into
ant,
their verdict
now
came
to the
consideration
;
before us
defend-
in
finding
would
purchased
evidence
fulfilling his
prom-
ion,
we
who
deduct
it
chaser,
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
buying
it
subject
to,,
a mortgage for
distinguished
ise.
In speaking of
use
the
word
it
as
as evidence,
It
sideration of the jury.
ever, said that the case of
v.
howWolbert
is,
which
may
its
continued
of contract,
be set up by way of re-
as a breach
THE PURCHASER
734
RIGHT
raises a
so,
Seen in
extreme position assumed in Wolbert v. Lucas may be
after
not void
coupment or
defalcation.
reconciled
reason
"
But, 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 believed
himself,
fect as
when
it
is,
as in
and consequently,
new
carries with
For nothing
liability.
eral
rule,
is,
better settled
as a genthan that
within
the
who
entitled to
make
and may
be released or abandoned by him at
is
it,
known maxim,
vitiated
only,
that the fraud cannot be
set
inal
for
is
not a
McCullough, 4 Serg.
485, and Chamberlain v.
v.
&
Rawle,
McLurg, 8
Watts & Serg. 36, expressly distinguish between such cases, and those
where the fraud is actual, and hold
that
the former
may be
confinm-d
out any
cludes
it,
the
and there
presumption
is
that the
arises
<J35
covenant was
expressly taken for protection against it, and the purchasemoney cannot be detained unless the covenant has been
other words, as has been clearly stated, <c the
purchaser shall be bound to perform his engagement wherever his knowledge and the state of facts continue to be the
broken
in
Thus,
tract of
land devised to him by his father, with a covenant of warranty against each and all the 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
and the
took from the former a deed warranting particularly against those incumbrances, it was no defence to
payment of the purchase-money to say that the incumbrance
was
still
latter
subsisting
determine whether
left
knew
both
it
to
the jury to
of these
parties
legacies
the
and
whether
circumstances
had
land,
charged upon
any
occurred rendering the situation of the defendant more perilous than at the time of giving his bonds for the
purchaseready been answered, and the result
of the whole is, that the rule which
has been granted for a new trial
must be discharged."
l Per
Gibson, Ch. J., in Lighty v.
Shorb, 3 Penn. R. 447 which was
;
Richardson, 4
Murphy
State R.) 293, to be ".the best sumof the cases that has been
inary
"
Watts, 328.
2
Fuhrman
Rawle, 386.
r.
Loudon, 13 Serg.
&
THE PURCHASER
736
money, and
been
perfectly
showed
correct.
that the
who
title
So
in
was
to the land
case
have
to
where a
recital
RIGHT
the
title,
after her
when he
to the defendant
Strohecker
v. Housel, 5
Journ. 327, Lewis, J.,
(afterwards Chief Justice of the Su-
Perm.
in
Law
at Nisi Prius,
" If the
jury believe that the eviction
and all the facts connected with it,
any
by
it
at the
title.
v.
sell
certain
land to one
articles
to the
into ar-
ticles
it
by the
chase
trary,
4 It was
said, moreover, that the
mercantile character of the security
warrant the
title
as a de-
was defective, in
consequence of which they failed in
an attempt to recover the land by
any express stipulation to the conit would seem that the vendor
(of the articles) did not intend to
title to the
premises, but
ly-
on the
original vendor.
is
That
furtlu-r
case, the
787
recital, to
and
to
them by
must be upon
his covenant,
title
would be nugatory
if
it
was
known
purchase-money as a
it,
he did. 4
conduct of the
vendor."
It is
first
parties.
payment
shall not
be made
depended
When
the
title is fully
the deed.
By
sonable time
the
title
allowed to investigate
for themselves. Until then a
defect of
is
title
would undoubtedly be
examined
cepted the
for themselves,
and
ac-
cerned.
This construction
is
is
con-
neces-
as they
G2*
Kerr
v.
Murphy
v.
In Share
v.
Anderson's Ex'rs,
&
his
mother and
sisters.
At
the time
to in-
738
Where, however,
the covenant
is
purchaser
to detain the
to
which he
But when
broken,
ment 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 in question, upon which the vendor
Ives
tell v.
Under the
his purchase.
charge of the Court, whose judgment
was affirmed on error, the jury made
a deduction for the amount of the
ject of
then due.
v.
Niles, 5 Watts,
v.
Spencer,
Buckley was
323
6 Barr, 257.
said
PoynMorris
by the Court
to
v.
So
supra, p. 251.
in
Poyntell
v.
Supra,
Morris
p.
v.
672
et
seq.
Buckley,
1 1
Serg.
&
established
by a
notice.
3
Poyntcll
v.
739
hended that
this result
would not be
affected
hy the
fact that
the purchaser had already paid a portion of the considerationmoney, for it will he rememhered that as respects so much
much
as
is
unpaid.
Such
1
Hersey v. Turbett, 3 Casey, (27
Penn. State R.) 424; "The de-
who
de-
livered
which
will
The
be noticed hereafter.
If neither ven1705,
8, 1 Sm. 61.
dor nor vendee had any title at the
by no
possibility
pledge any
title
to
of
He
the possession to
the person from whom he received it.
.
This principle applies with pecu.
money
or restore
liar force in
plaintiiF
on a mortgage
character.
It
even
scire facias
an action of this
makes no personal deis
The judgment
is
He
is
not
de term.
It is
to
principle
The purchaser
mortgaged.
sheriff's sale
at the
the execution
of the
mortgage.
It
title,
in
a pro-
Supra,
a subsequent action
p. 706.
74-0
a gross sum. 1
title
conveyed to him by
incumbrance
where the
can,
upon general
damages
to this,
Brown
is, it
v.
will
is
to
cases as
Dickerson,
'1
R.) 519, the question turned principally upon whether the purchaser
was entitled to the defence at all, as
enti-
was
Jones, (12
purchase-money to
Franciseus
116, per
Ingersoll
to
v.
Reigart, 4 Watts,
J., and see also
Kennedy,
v.
Sergeant,
AVharton, 357,
as to the nature
of ground-rents in
Pennsylvania.
3 In Juvenal
Gibson, Ch. J.
v.
he were suing as
plaintiff
is a
Where,
ground-rent,
the amount of these damages would probably, in most cases,
exceed that of the annual rent, and under these circum-
nants.
it
is
by the
covenants,
and
the
latter
are
actually
broken. 2
Where, however, such is not the case, and the defence is,
under the Pennsylvania decisions which have just been
3
an equitable one, resting upon failure of consideraalthough there can be no certificate found in favor of
quoted,
tion,
The
it is
of 1 705, Dunlop's
Purdon's Dig. 237.
2
Thus, in the case of Garrison v.
Moore, in the District Court of Philstatute
Digest, 56
apprehended, be entitled to
Purchase-money
title,
or warranty.
unless there
was fraud
The same
principles
warranty
better
alleged
that he
title,
cross
ation,
is
demand and
failure of consider-
noticed in
Supra,
p. 709.
Good
v.
p. 742.
Good, 9
THE PURCHASER
RIGHT
on
this subject,
"
mains.
If," said
ment of
the land
apportioned pro
moved
tanto.
And
if
the
would be
it is
conceived that he
successive
amount of
his loss.
1
Supra, p. 715.
Franciscus v. Reigart, supra, p.
740.
3 Garrison v.
Moore, supra.
"
We
" that
are of opinion," said the Court,
the second plea, of an eviction by
apportioned."
4
See, passim, as to
Good
this,
the case
v.
vendor
to
rested
the previous
which
it
As
to
mand,
cross de-
concluded
but
we must be
was
careful
743
is,
plication.
inherent in
the other
all
the
plaintiff's
is
equita-
securities
In
defendant claimed
Judge who
effort
the
delivered
of the
former
for cross
sideration,
demand
ing the latter, between distinct securities for different parts of the origi-
which
attained by defalcation
lar estate of
proper application of
these remarks, the failure of consid-
that
in
the
The
nal debt.
it.
It
consideration
ties
amount
to
sum sued
all
defence
the securi-
compensation for
full
it is,
furnishes
inherent in
is
till
deed,
and
it
be
so, in-
for.
The
principle of
of consideration
among
all
INDEX
Page
ABSTRACTS OF TITLE,
....
how
noticed
in,
132
369, 370
602
ACRES,
covenant not to be implied from enumeration
of,
523, 524
doctrine of estoppel,
purchase-money,
413
to
435
to detain
by allowing purchaser
.
638, 639
164 to 181
ACTS,
what a breach of covenant for quiet enjoyment,
what may be required under covenant for further
assur-
186 to 190
ance,
And
see
FURTHER ASSURANCE.
....
172
connection of doctrine
35 to 38
Acts,
ADVERSE
SUIT,
notice
of,
237, 238
nantor,
And
see
NOTICE.
AFTER-ACQUIRED ESTATE,
notice
of,
when
it
will
for
title,
And
63
see
ESTOPPEL.
38 to 44
402 to 457
INDEX.
AGENT,
when
act of,
power of
......
nants of the
latter,
power
to give
168
proper cove-
570
nants,
of,
how dower
formerly barred in
England by,
105, 106
128
89 to 93
APPORTIONMENT,
of damages,
And
when breach
see
partial,
DAMAGES.
ARREARS OF RENT,
when breach
And
ARTICLES,
see
ARTIFICIAL WATERCOURSE,
breach of covenant against incumbrances,
113, 114
ASSETS,
what
587 to 599
are,
administration
....
for title,
another State,
394
395, 587
586
of,
right of covenantee to
a specialty creditor,
specific
when
come
.
upon
.
assets as
.
588
incidental to,
covenants for
in
.
title,
how
affected
by
286,574,575
ASSIGNMENT,
vendor claiming under voluntary, what covenants demandable from,
....
specific
553
.
.
.
160 to 162
voluntary, when decreed, .
of lease, no covenants arising by implication
*
from, .
477, 478
ASSIGNEE,
liability of,
in
...
601
INDEX.
747
ASSIGNEE,
of covenant for title,
right of, to benefit
on covenants for seizin, right to convey,
to 352,
for quiet
and of warranty,
And
see
they
.....
470, 610
ASSIGNEES,
for creditors,
565
640
ASSUMPSIT,
ASSURANCE.
ATTORNEY,
when
549
tion of covenants,
ATTORNMENT,
when forbidden by Stat. 11 Geo.
And see TENANT.
II.,
264
AVERAGE VALUE,
of land,
when
to
be taken in estimating
90 to 93
damages,
BANKRUPT,
usually joins with assignee in conveyance of his
567
567
567
estate,
reason for
assignees
this,
of,
BANKRUPTCY,
when a bar
to recovery
on covenants for
title,
577
of,
....
BIGAMIS,
upon warranty,
18
2,
BOND,
performance of covenants,
reasons for and use of in England,
for
heir,
when
liable
on bond of ancestor.
590,591
.
591
See HEIR.
BOROUGH ENGLISH,
warranty by ancestor did not descend upon
heir by custom of,
except by way of rebutter,
BREACH,
what amounts
covenants.
to.
11,398
398, 399
INDEX.
74*8
BREACH,
assignment
of,
on covenant for
52
to
54
seizin,
good right
to convey,
52 to 54, 107, 108
against incumbrances,
for quiet enjoyment,
125
182, 184
of warranty,
197, 198
308 to 311
BUILDING COVENANTS,
damages recovered on covenants, for
title sold or
conveyance with,
325
BURDEN OF PROOF,
where
it lies
in suit
on covenant
for seizin,
55 to 57
against incumbrances,
125
183
of warranty,
BY, FROM,
198
308
to
311
OR UNDER,
construction of these words in limited covenants,
174, 175
CAVEAT EMPTOR,
rule
CESTUI QUE
of,
And
TRUSTS,
how
see
far applicable,
PURCHASER.
when bound
to
title,
567
to
569
568
CHAMPERTY,
what
32 to 37
is,
doctrine
of,
how connected
30 to 45
seizin,
upon covenants
CHOSES IN ACTION,
for title,
38 to 45
....
COLLATERAL WARRANTY.
COMMENDATIONS,
See
WARRANTY.
of estate by vendor,
how
far allowable,
623
CONCEALMENT,
by purchaser, how
by vendor,
far allowable,
627
626, 627
CONSIDERATION-MONEY,
the ultimate measure of
for seizin,
138 to 141
INDEX.
74*9
CONSIDERATION-MONEY,
clause as
to,
may be
to affect the
...
....
65 to 69
66
462
to
483
PURCHASE-
See
MONEY.
CONSTRUCTIVE EVICTION.
CONTINGENT LIABILITY,
See EVICTION.
when a breach
of covenant
.
against incumbrances,
executor, not bound to retain
assets to
meet
future,
113
601
CONVEYANCE,
rights of
by,
COPARCENERS,
implied warranty in partition between,
must join in actions of covenant,
.
471 to 473
606
COSTS,
of defending covenantor's title recoverable,
.
counsel fees and other expenses, how far in.
cluded,
notice to covenantor not necessary to recovery
except as to reasonableness of amount,
98
98 to 103
of,
.
99
99
COUNSEL,
draft of further assurance submitted to,
fees of, when recoverable,
196
98 to 103
USES,
of,
439 to 441
COVENANTEE,
equitable jurisdiction,
half of,
how affected by
when
exercised on be-
lapse of time,
under
statute as to decedent's
estates,
594, 595
.
603 to 606
rights of, whether joint or several,
And see COVENANTS FOR TITLE, extent to which
.
they
COVENANTOR,
liability of,
when
material in administration
of assets,
when joint
574
or several, .
.
.
578
equitable jurisdiction, when exercised on behalf of,
581 to 586
63*
INDEX.
COVENANTS FOR
TITLE,
introduction
their
.......
...
.
of,
number,
1,
11
11
....
12
49
334
....
the realty,
distinction
in equity,
between their benefit
334, 335
376
and
334, 335
their burden,
all
covenants for
title
336
until breach,
but covenants for seizin, right to convey, and against incumbrances, held
in United States to be broken as soon
as
made,
and
in Indiana,
.
.
statutory provision in Maine,
.
.
doctrine in Ohio and Missouri,
reasons on which American cases are
336
337 to 339
339
343
339, 340
347 to 352
based,
352
414
.
ning with land, denied in Maine,
benefit of covenants for title vests
how
in successive owners,
Mr.
Preston's
their divisibility,
life
and remainder-man,
rights of
354
354
between tenant
for
355
856 to 359
an intermediate cove-
nantee,
conveyance of the land carries with
the
covenants for
with
352, 353
against
opinion
title
which
357, 358
it
run
360
it,
352
.
.
.
tary alienation,
application to the case of a mort-
gage,
360
to
366
INDEX.
COVENANTS FOR
TITLE,
England,
nor in Kentucky,
.
365
361
United States,
mortgagor,
how
...
362
....
relieved in
365, 366
equity,
of
not
affected
land,
by
equities
assignee
369 to 371
.
as to the covenants,
369 to 373
release and discharge of covenants,
.
release
by covenantee,
veyance, of no effect,
but
if
made
after con-
369
while
still
the
United
States,
368, 369
parol
369
369
contra, in England,
at law, will bind subse-
quent purchaser,
whether within the
try acts,
371, 379
regis.
372, 373
.....
soon as made,
effect of doctrine,
374
374 to 376
name
.
377
to
380
cumbrances,
378, 379
rights
claim,
.....
of covenants
affected
382
how
generally,
by want of
381, 382
estate to
.
382 to 393
support the covenant,
effect of doctrine under mod.
ern conveyancing,
384, 385
INDEX.
75%
COVENANTS FOR
TITLE,
estoppel,
how
doctrine,
modified in
New
386
388 to 393
....
.
.
492 to 511
all the covenants,
501 to 511
exceptions,
subsequent limited covenant will
tend to
when
will
518, 519
519
tures,
by express agreement,
521 to 523
enants,
by
descriptive context,
exceptions,
in marshalling of
....
assets,
liabilities
right to
See
expect.
presence
VENDOR.
when material
523 to 529
529 to 533
of covenantor,
married women,
heir,
574
576
574
578 to 580
433, 434
to
594 to 599
devisee,
executor or administrator,
assignee,
....
rights of covenantee,
executor or administrator,
601
602 to 606
607 to 609
609
610
assignee,
of,
613, 614
603 to 606
joint
as to liability of covenantors,
rights of covenantees,
for further assurance.
See
578
FURTHER ASSUR-
ANCE.
for right to convey.
See
RIGHT TO CONVEY.
INDEX.
of warranty.
CUSTOMARY
QUIET ENJOYMENT.
See
See
WARRANTY.
HEIR,
11,398
399
DAMAGES,
measure
of,
ultimate extent
money and
is
to
2, 58,
59
convey,
the consideration-
interest,
......
.....
58 to 63
65
58, 63
71
....
....
refusal to purchase,
recovery,
how
no bar
71
to
still
71
in
73 to 80
if possession
where
74
75
covenant
....
treated as a continuing
one,
75
how
far
it
the covenantor,
.
.
.
reconveyance not necessary to be
76 to 80
76
made,
though perhaps prudent,
78
and
entry of judgment
might be reserved, or
....
made,
when outstanding
toppel,
nominal,
title
reduces
enuring by
the
damages
78
es-
to
80
INDEX.
DAMAGES,
measure
of,
if
tendered by covenan-
tor,
it,
where breach
partial,
81 to 87
....
may
purchaser
88
92
90
considered,
interest
on consideration-money recov93
erable,
93 to 97
incurred in adverse
when
suit,
re-
98 to 104
coverable,
....
to
100
except as to reasonable.
ness of amount,
but counsel fees and expenses
in suit on covenants not re.
100
....
103
.....
134, 135
coverable,
when nominal,
general rule as
to,
136
137
......
when incumbrance
is
an
or years,
when estimated by amount paid for removal of incumbrance,
...
provided
137
138
it
138 to 141
.
consideration-money,
in
of
intermediate
case
an
limited,
.
when
375
143
142 to 144
him,
...
146 to 148
148
INDEX.
DAMAGES,
measure
of,
right exists,
refusal to purchase will not re-
145
to
202
ranty,
measure
of, as to
improvements and
in-
312
States,
at time
.
314 to 316
.
.
.
of eviction,
rule of the civil law,
.
316 to 318
.
where limited by consideration-
adverse
title,
31 7 to 321
an intermediate
covenantee, to amount recovered from him,
in case of
375
in case of sale
325
.
upon building covenants,
how regulated by occupying
claimant laws,
...
320
326 to 331
DEBT,
dantages,
when
588, 589
a,
DEBTS,
liability of land for payment of,
damages come within a demise for payment
591,592
of,
598, 599
DEDI,
warranty created by,
2,467,468
DE DONIS,
effect of statute of,
upon warranty,
...
DEEDS,
of lease and release, advantage of, in England,
what covenants should be contained in. See PURCHASER.
poll, whether covenant can be maintained against
.
18
477
lessee under,
DEFAULT,
what a breach of covenant
172 to 175
DEFECT,
of, on the part of purchaser, no defence to
128 to 134
action on the covenants,
notice
INDEX.
DEFECT,
.
.
right of purchaser to title clear of,
how affected by execution of the deed,
And see PURCHASER.
611,612
612, 613
DEMISE,
....:..
And
see
473
IMPLIED COVENANTS.
DESCENT,
what covenants demandable when vendor takes by,
552, 553
552, 558
DEVISE,
DEVISEE,
liability of, at
common
law,
statute in
by
England,
in United States,
594 to 596
596 to 598
593 to 596
real estate of devisee, how liable on covenants in England under devise for pay-
ment of debts,
598,599
607 to 609
on covenants
....
....
against incumbrances,
convey and
336 to 347
must sue
if
and of warranty,
breach be after testator's death
352 to 356
609
210
DISCONTINUANCE,
when produced by warranty,
DISSEIZIN,
different opinions as to,
16
...
437
438
DISTURBANCE,
what
DIVISIBILITY OF
a,
COVENANTS FOR
Lord
See EVICTION.
title.
TITLE,
.
835, 336
335
St.
.
.
Leonards, contra,
as respects tenant for life and remainder-
DOUBLE
835, 336
man,
TITLE,
DOUBTFUL
when necessary
in cases of
exchange,
what
DOWER,
470
TITLE,
.
562 to 565
562
is
....
to
565
51
121 to 125
INDEX.
757
DOWER,
how
.....
band's
DOWER
........
title,
damages
105
106
deny hus-
in,
463
326
to
466
to
331
USES,
object
in English conveyancing,
of,
no breach of covenant
105
EASEMENT,
...
for seizin,
51
113,114
587
INCUMBRANCES.
See
ELEGIT,
only execution on lands by statute of Westminster,
EMINENT DOMAIN,
right
of,
no breach of covenants
for
117,166
title,.
release of
damages
held no breach,
ENJOYMENT.
ENROLMENT,
See
293 to 305
18
QUIET ENJOYMENT.
when required by
statute 27
Henry
VIII.,
ENTRY,
exercise of right
of,
when breach
of covenant of war-
244
ranty,
EQUITABLE ESTATE,
owner
of,
when compellable
title,
to cove-
.567,
568
EQUITY,
jurisdiction of, in specific performance of covenants,
not exercised as a general rule,
.
.
.
155,156
....
to administer-
to marshalling of assets,
in case of covenant for further assurance,
when covenants
conveyance,
in
158
574
183 to 193
to
578
reforming covenants,
money.
See
in declaring
PURCHASE-MONEY.
mortgagee entitled
to benefit of
covenants,
exercised on behalf of covenantor,
365, 366
.
covenantee, 155
64
581 to 586
to 162, 191,
192
INDEX.
758
EQUITY,
rule
as to allowance for
of,
improvements,
320
EQUITY OF REDEMPTION,
covenants for
title will
generally,
contra in
relief
362
361, 365
365, 366
369 to 371
EQUITIES,
when
bound by
prior,
ESTATE,
when necessary
privity of,
run
to enable
covenants to
334
-with land,
360
to
366
what
382
to
393
See ESTOPPEL.
after-acquired.
ESTATE FOR
LIFE,
of, a breach of the covenant for seizin,
measure of damages, how estimated,
life tables admissible to show value of,
existence
52
89
90
ESTATE
TAIL,
137
137
.......
....
......
warranty
ESTOPPEL,
first
generally,
of tenant, from denying landlord's
origin of doctrine,
statute of
George
introduced to defeat,
title,
...
II.,
qualifications to doctrine,
not applicable as between
....
of vendor,
how
52
5,
262
to
204
268
263
264
264 to 267
268
407
465, 466
464, 465
463, 466
estopped to deny husband's title,
65 to 69, 460 to 463
.
none caused by consideration clause,
extent to which doctrine is carried by recent cases,
461, 462
.
how
76,77
.......
its
way
of,
ordinary effect,
an after-acquired estate,
where conveyance was feoffment,
as to passing
recovery,
402
402
402
fine or
402
INDEX.
7-59
ESTOPPEL,
operation of covenants for title by way of,
or in cases of leases,
403
404
405-407
uses,
difference
.
effect of estoppel,
latter effect given in
.*
408
nant of warranty,
said to be based
of action,
early cases did not require presence
408
.
of covenants,
contrary doctrine at present time,
.
409
411
and
411
Missouri,
contra elsewhere,
nor
by covenants
seizin
when
414, 415
415
for
satisfied
416
by tortious seizin,
nor where an after-ac.
....
416
limited
by the
conveyed,
estate
.
enants by
way
418
.
.
.
principle of the cases,
distinction between operation of cov-
421, 422
422
butter,
as
....
422
to
427
acquired estate on
the former, nolens
volens,
...
424
sers
to
433
INDEX.
760
ESTOPPEL,
operation of covenants for
title
by way
of,
effect of doctrine
on registry acts,
430
a purchaser without
may
affect
notice,
430
433
433
estoppel of married
women,
damages on
nants,
433
434
435
436
Co. Litt,
probable mistake in
its
application,
its
.
.
.
.
explanation,
rules of common law as to operation
.
. 436 to 438
of warranty,
.
.
it
disseizin,
437
true
England,
principle
..
436
437
436
438
to
441
.441
to
44 7
447
to
454
454
to
457
of estoppel in connection
with covenants,
no estoppel by covenants
in a purchase-
45 7 to 460
money mortgage,
estoppel of grantor to contradict considera65,
tion,
460
to
463
nor by
recital,
466, 46.7
EVICTION,
breach of covenants for quiet enjoyment, and of warranty
by
240 to 308
actual,
dispossession
....
by process of law,
by entry,
by voluntary abandonment,
.
242, 243
245 to 251
244
INDEX.
761
EVICTION,
constructive,
by
by
when
when
where
a defence to
established
by a judgment,
...
.
251 to 260
260 to 293
260 to 278
278 to 293
293 to 305
265
308
.'
how pleaded,
title,
to
311
EVIDENCE,
when
65 to 69
EXCEPTED INCUMBRANCES,
be
should
set
in
forth
abstract of
1
title,
covenantor not
28 to
34
liable for,
EXCHANGE,
warranty and condition of re-entry implied in
cases
8,
of,
inconvenience
double
title,
470
of,
.
.'
....
470
470
EXECUTION,
under process, not necessary to eviction,
242, 243
352
assignee under, may take advantage of covenants,
350, 351, 588
by extent under statute of Westminster,
.
EXECUTOR,
liability of,
covenantee
....
death of testator,
real estate of testator,
599, 600
when
assets in
hands
592 to 596
of,
....
rights of,
64*
601
336
in lifetime
336, 609
INDEX.
762
EXECUTOR,
on covenants for
seizin, right to
against incumbrances,
convey and
.
on
to 356,
599
which
sales by,
rule
into
565
covenants of
.
.
greater scope,
See IMPROVEMENTS and COSTS.
-.
EXPENDITURE.
EXPENSES. See
EXTENT,
352
to
570
to
572
COSTS.
for
title,
350
FAILURE OF TITLE,
right to reclaim or detain
by reason
FEMES COVERTS.
FEOFFMENT,
See
See
of.
purchase-money
PURCHASE-MONEY.
MARRIED WOMEN.
....
16,
436
16
FIDUCIARY VENDORS,
...
liability of,
565, 566
570
to
572
FINE,
married
578, 579
408, 436
extends to levy-
it
.
a,
ing
in,
188
615
FIRE,
rent must be paid, though premises be burned by,
FOOTWAY,
existence
of,
incumbrances,
117,118
FORGERY,
where no breach of a covenant that party had done
no act to incumber,
.
.
.
614
FORMER RECOVERY,
how
on covenants,
152
FRAUD,
damages not increased by,
in actions of covenant,
65
325
615
to
632
INDEX.
FRAUD,
between mistake and,
distinction
621
on ground
of,
FRAUDULENT DEVISES,
589 to 591
statute of,
........
FURTHER ASSURANCE,
form
what
of,
covenant
for,
185
may be
acts
required under,
depend upon the scope of the other covenants in the deed,
189
190
veyed,
to
193
186, 187
as to production of title-deeds,
.
.
covenants not demandable in deed of further as-
194,195
surance,
usual course to obtain performance of the cove-
197
196
nant,
pleadings,
declaration must state the particular assurance required, and the right to demand
198
it,
breach
of,
when
it
occurs,
assignee,
199
200
200 to 202
damages upon,
FUTURE ESTATES,
operation of warranty upon,
And
see
409
to
457
ESTOPPEL.
GATE,
erection
of,
joyment,
GAVELKIND,
warranty by ancestor did not descend upon
heir by custom of,
except by way of rebutter,
11,398
398
GENERAL WORDS,
in covenants,
And
see
how
limited,
492 to 519
GIVE,
warranty implied from the word,
See
.2,467,468,483
.....
....
operation
RIGHT TO CONVEY.
404
404
INDEX.
GRANT,
covenant implied from the word grant in creation of
a leasehold,
but not in its assignment, nor in creation or
474
transfer of a freehold,
"
474
to
476
at
common
GROUND-RENT,
liability
ported,
arrears of,
how
sup-
335
when breach
of covenants,
173, 183
payment
purchase-money when
right to detain
164
se-
cured by,
729 to 732
GROUND-RENT DEEDS,
covenant for quiet enjoyment usually inserted
And
GUARDIAN.
See
in,
164
GROUND-RENT.
FIDUCIARY VENDOR.
see
HEIR,
by customs of Gavelkind and Borough English, not
bound by warranty of ancestor,
except by
way
of rebutter,
11,398
398
liability of,
586
.
587
of,
588
588
death of ancestor,
.
he had aliened the lands,
remedy by statute of fraudulent devises, .
trust estates not assets before statute of
589
fore, or after
if
589
frauds,
lands
how liable
in
in
589
589
at present day, in
England,
United States,
incumbrances,
hands
of,
....
.
right to
592, 593
591
592
336
convey and
336 to 347
INDEX.
765
HEIR,
right of,
on covenants,
for quiet
of warranty,
352 to 356
must sue if breach be after death of ances-
609
tor,
And
see
HIGHWAY,
no breach of covenant
for seizin,
...
51
to 119
HOMAGE,
warranty implied from,
how
affected
by
2,
467
3
HOUSE,
right of
occupancy
of,
incumbrances,
buildings, removal or destruction
of,
113
a breach of cove-
181,295
lease
......
so
176, 177
power,
DOWER
ILLEGAL CONTRACTS,
And
176
defective execution of a
see
how
and MARRIED
far.
WOMEN.
88 to 44
void,
IMPLIED COVENANTS,
exist at present day at common law, in
creation or transfer of a freehold,
or from the word grant, or the like, .
but implied from the words of leasing, .
.
none
474
to
476
478
480
restrained
by express covenants,
477,478
483
....
476
476
476
484
479
to
483
enants,
....
recitals,
485 to 488
488 to 490
488
INDEX.
766
IMPLIED COVENANTS,
533 to 548
gain and sell,
are joint or several, according to interest
578
granted,
IMPLIED WARRANTY,'
heir not
469
bound by,
from homage,
how
affected
by
statutes de
......
in cases of exchange,
2,
2, 3,
467
467, 468
470
470 to 473
of partition,
how
how
467
bigamis and
quia emptores,
2,
affected
by alienation,
altered by statute of Henry
VIII
and in cases of partition by
.
470
471
471
471
472
writ,
Pennsylvania, in
cases of tenants in common
different in
by
...
descent,
remedy
472
upon, at pres-
ent day,
473
IMPROVEMENTS,
not allowed to purchaser as damages on covenants
.
.
for seizin and against incumbrances,
where allowed on covenants for quiet enjoyment
.
312 to 324
and of warranty,
.
in cases of sale with building covenant, .
when allowed by party seeking aid of equity,
how
57 to 65
....
825
823
820
65,325
INCREASE,
in value,
how allowed
for in
admeasurement of
826 to 830
dower,
when not
covenants.
See
DAMAGES.
INCUMBER,
fiduciary vendors, only covenant that they have
done no act to,
565, 566
INCUMBRANCES,
known, should be expressly excepted from
covenants,
128, 183
INDEX.
7^7
INCUMBRANCES,
otherwise, notice
of,
no defence
to cove-
128 to 129
nantor,
exception
how
of,
introduced
cove-
in
133
nants,
covenant against,
form of,
109
grantor,
.
Ill
112
......
how expressed
in
its
covenant
operation,
America,
distinction between, and covenant
.
to
Ill
to discharge of
153
incumbrances,
what a breach of,
taxes, judgments, mortgages, &c.,
contingent
110
110
liability,
113
113
113 to 119
easements,
distinction
ficial
watercourse,
public roads,
right of eminent domain,
as to right of dower,
.
arti-
114
115 to 119
.
117
119 to 125
pleadings upon,
plaintiff must set forth the incumbrance,
also the special damage, .
.
...
...
.
form of declaration,
measure of damages, specific performance of,
not decreed as a general rule,
exceptional cases on principles of quia
125
127,378
126
154
154
timet,
when covenants
to administra.
...
158
160
conveyance,
known incumbrances
from the covenant,
should be excepted
.
128
on the covenant,
128
enants,
rights of assignee of. See COVENANTS FOR
TITLE, extent to which they run with
land.
129
INDEX.
INDEMNITY,
covenant against incumbrances partakes of character of covenant of,
.
.
173
.......
........
INFANTS,
covenants from,
559
52
107
INJUNCTION,
when granted
to restrain collection of
See
money.
purchase-
PURCHASE-MONEY.
INSOLVENCY,
when
lieving from
INSOLVENT,
trustees
of,
567
INTEREST,
after-acquired.
See
ESTOPPEL.
INTERRUPTION.
mesne
93 to 97
93 to 97
profits,
See EVICTION.
INVOLUNTARY ALIENATION,
covenants for
title will
pass by,
352
410
'
.....
as to liability of covenantors,
rights of covenantee,
JUDGMENT,
578
603
to
606
...
51
....
188
LAND,
covenants running with.
See
LATENT DEFECTS,
when must be
disclosed
by vendor,
....
to
483
626
LEASE,
when an incumbrance
within covenants,
in,
52,113,140
........
163
an after-acquired
estate,
142, 325
403, 440, 441
INDEX.
LEASE,
covenants implied in creation of,
but not in assignment of,
476
.
to
483
473
89, 137
of,
why
is
LEASEHOLD,
ancient warranty used as personal covenant
with respect to,
implied covenants
enants,
in,
restrained
9,
208
by express cov483
LET,
covenant implied from the word,
SIT^:,
covenants for title, how far to be governed by,
476
43
LIABILITY,
of covenantor.
See
COVENANTOR, and
the several
Covenants.
of married women.
See
MARRIED WOMEN.
See HEIR.
of heir.
See DEVISEE.
of devisee.
See
of executor.
EXECUTOR.
of assignee.
See ASSIGNEE.
how
LIEN,
debts,
far a lien
591, 592
52
LIFE ESTATE,
of, a breach of covenant for seizin,
measure of damages, how estimated,
existence
value
of,
how proved,
89
137
LIMITATION,
of time, effect
of, in
when presumption of
nants arises from,
LIVERY OF
602, 603
SEIZIN,
...
15
LOCAL,
action on covenants for
claims
by
title
privity of estate,
are local
.
when
.
plaintiff
.
of,
575, 576
nants,
how
65
105, 579
105, 579
770
INDEX.
MARRIED WOMEN,
estoppel
of,
....
....
....
by covenants,
579
fine,
MARSHALLING OF ASSETS,
presence of covenants for
434
573 to 580
when
title,
material
in,
574 to 576
MEANS,
construction of words, means, privity
MESNE PROFITS,
interest
and procurement,
172
lent to loss
93
of,
when extended
liability for,
93 to 97
524 to 531
to,
615 to 632
MISTAKE,
how
MORTGAGE,
621
18,129
ground
129,522,523
....
51
of,
146, 147
145, 148
......
148
145
....
in,
...
in,
457
to
552
460
249
MORTGAGOR,
estate of,
whether
sufficient to carry
covenants to
purchaser from,
by equity,
....
.
360 to 366
861 to 364
860, 361
365,366
INDEX.
771
MORTGAGOR,
unlimited covenants usually given by,
but in case of purchase-money
552
mortgages
457
to
460
MORTMAIN,
and recoveries used
fines
to
evade statutes
of,
NEGLECT,
covenant for further assurance not broken when act
.
prevented by neglect of covenantee,
a breach of covenant for quiet enjoyment,
.
when
NOMINAL DAMAGES.
See
NON-CLAIM, COVENANT
OF,
its
nature,
form
187, 188
172 to 176
DAMAGES.
222
222
limited,
223
of,
when
NOTICE,
under averment
of,
in pleading,
whether proof
.
given of dispensation,
no presumption of notice of defect of
.
may be
.
....
title
arises
311
from
556
of incumbrance,
128, 134
nants,
.......
necessary to recovery on
to
warrantor of adverse
to
warrantia chartce,
covenantor, not necessary to recovery on cove-
suit,
238
237, 238
nants,
100
suit,
is
sufficient,
100
238, 239
228 to 230
229, 230
purchaser without,
how
affected
377
.
title,
377 to 381
by doctrine of estop430
pel,
character
of,
....
721,722
OCCUPATION,
right of, in house,
when a breach
of covenant,
.......
113
OUSTER.
of,
how
regulated by
64
320
INDEX.
Tl"2
PARAMOUNT
TITLE.
See EVICTION.
PAROL EVIDENCE,
PAROL LEASE,
129, 150
what covenants
479
to
483
PARTIES,
covenants when defeated by neglect of, .
.
.
to action on covenants.
See ASSIGNEE, COVE-
187, 188
PARTITION,
470 to 473
warranty implied in, at common law,
inconvenience of, at present day,
470
in requiring a double title,
471
.
only extended to coparceners,
471
how affected by alienation,
.
how
altered
by
statute
of Hen.
471
VIII.,
472
and
.
.
to cases of partition by writ,
different in Pennsylvania in cases of ten-
ants in
common by
remedy upon
descent,
at present day,
PARTY OR PRIVY,
effect of the words,
PERSONAL COVENANT.
PERSONAL PROPERTY,
112
sale of,
50
See
warranty of
472
473
...
title,
how
on
far implied
PERSONAL WRONG,
covenants for
title
do not extend
to,
169
PEWS,
when breach
against incumbrances,
PLEADING. See
POSSESSION,
of covenant
.
when covenants
nature
of,
to enable
them
to
do
so,
satisfied
altered
by
....
by conveyance under
436
when an
eviction,
.245
.
covenant for seizin omitted, .
person taking under execution of, is within covenant
sale under,
dor,
15, 83,
statute of
uses,
abandonment
for quiet
388 to 393
393
20 to 47
see SEIZIN.
how
is
of,
And
when
113
enjoyment against
all
to 251
105
179,180
INDEX.
773
POWER,
covenant arising from words of leasing implies power
478
to demise,
PRESENTI, COVENANT
IN.
See
PRESUMPTION,
of satisfaction of covenants from lapse of time,
381, 595
to
179
334,335
PRIVY,
effect of the
when
112,567
word,
effect of adve-rse
judgment
on,
....
230 to 234
427,435
PROCUREMENT,
signification of the
quiet enjoyment,
PRODUCTION,
of
title
deeds,
when may be
called for
under
.
195
PURCHASE-MONEY,
when the measure of damages on covenants.
See
DAM-
AGES.
........
arid not
right to reclaim, must be by action of covenant,
of assumpsit,
right to detain, depends solely on the covenants received,
640
636, 638
set-off,
638, 657
recoupment,
....
how
638
638 to 646
646 to 676
646 to 672
actual or constructive,
or to the
how
mere
no
.
.
applied in courts of equity,
absence of title, or adverse suit brought,
.
ground to restrain collection of,
how
damages,
65 *
afforded
672,673
to supply
defects,
doctrine,
615 to 632
when present
673 to 676
676 to 700
676 to 684
684
right to
686 to 690
INDEX.
PURCHASE-MONET,
quid timet jurisdiction, how exercised,
insolvency or non-residence, .
691 to 700
691 to 700
its
v.
696 to 700
700 to 706
705
703 to 743
710 to 714
...
...
case of Steirihauer
706
707
Witman,
correct application,
purchaser's
714
722
721
722
727
727 to 732
nant,
.....
733 to 740
rent,
741
741
742
able,
PURCHASER,
right
to clear
of,
title,
utory,
how
by execution of convey-
affected
ance,
rule of caveat emptor,
rights
of,
as
how
applied,
612, 613
614, 616 to 632
See
respects purchase-money.
PURCHASE-MONEY.
QUALIFIED
QUANTITY,
covenants for
title
do not extend
to,
to
134
524
467
4JUIA EMPTORES,
effect of statute of,
upon warranty,
QUIA TIMET,
jurisdiction of equity in specific
covenants,
performance of
154
to 157,
387
INDEX.
775
QUIA TIMET,
in detaining purchase-money,
And
see
691 to 700
PURCHASE-MONEY.
QUIET ENJOYMENT,
covenant
for,
163
definition of,
form
....
.....
of,
163
164
in ground-rent deeds,
when
limited,
and
.....
in ground-rent deeds,
164
163
163
164
.
165
168
169
70
171
171
dor,
and means,
172
of agent, when
the act of the cov-
act
enantor,
default,
means,
title,
curement,
breach
of,
in general,
And
runs with the land.
see
to
175
or pro-
distinction between,
190
172
179
175 to 179
180
181
EVICTION.
See
pleadings upon,
declaration must aver interruption to have
been under lawful title, existing before
conveyance,
but adverse title need not be particularly
182
.....
182
set forth,
form of declaration,
measure of damages. See DAMAGES.
183
334, 336
are,
assignee,
And
when
see
336 to 393
INDEX.
776
REASONABLE ACTS,
188 to 193
REBUTTER,
operation of the old warranty by
And
see
way
ESTOPPEL.
of,
4,
400
to
402
RECITAL,
....
no estoppel
caused by,
to purchaser
RE-CONVEYANCE,
407
488 to 490
466,467
.......
....
76
78
in order to
739
.
detain purchase-money,
.
.
covenants contained in, restrained to acts of
grantor only,
doctrine
457
to
.......
RECOUPMENT,
of,
632
....
REDDENDUM,
implied covenants raised by,
460
476
REDEMPTION,
equity
of,
when covenants
will
run with,
360 to 366
RE-ENTRY,
of, implied in partition and exchange,
abolished by statute in England,
...
condition
exist
REFORMATION,
in equity of covenants,
470
to
473
470
472
129, 520
...
REFUSAL,
to purchase
paramount
title
covery on covenants,
no bar
REGISTRY ACTS,
whether release of covenants for
effect of doctrine of estoppel
title
upon,
comes within,
.
371, 372
430
RELATIVE VALUE,
of land,
when
to
be considered in measuring
90, 91
damages,
RELEASE,
by nominal
plaintiff, will
877
actually interested,
369
it
covenantor,
may be made by
States,
parol in
United
369
INDEX.
777
RELEASE,
by covenantee,
contra, in England,
at
bind
will
law,
371, 379
chaser,
RELIEF.
See
369
acts,
RENT,
in arrear,
payment
of,
....
...
recovery on covenants,
when a breach of covenants for
his
payment of (and
and PURCHASE-MONEY.)
eviction suspends
to
title,
see
164
173
GROUND-RENT
RESCISSION,
of contract, jurisdiction of equity as to,
.
not to be effected when partial failure of title,
RESTRICTIVE WORDS,
what, used in limited covenant for seizin,
616 to 632
92
...
19
against incumbrances,
Ill
171, 172
of warranty,
223
RESULTING TRUST,
grantor estopped by covenants from setting up
such an interest in consideration-money, as to
463
cause,
REVERSION,
covenants for
title will
pass with,
RIGHT OF WAY,
existence
of,
no breach of covenant
....
for seizin,
363,387
51
brances,
interruption
of,
quiet enjoyment, .
concealment of, how far a fraud,
RIGHT TO CONVEY,
covenant
of,
seizin,
when
when
....
........
when synonymous with covenant
for
105
105
omitted,
satisfied
181
616, 631
by transfer of actual
seizin,
how connected
with cham-
perty acts,
form
of,
30
107
52, 107
INDEX.
778
RIGHTS,
of covenantee.
when joint or
COVENANTS.
several.
SEVERAL
See HEIR.
of heir.
See DEVISEE.
of devisee.
of executor or administrator.
See
EXECUTOR.
See ASSIGNEE.
of assignee.
ROADS,
existence
.
of, no breach of covenant for seizin,
whether breach of covenant against incum-
brances,
51
141 to 146
SEIZIN,
one of the parts of
livery
when
15
title,
.....
.......
.......
........
covenant
for,
when
omitted,
seldom used in
form
of,
England
17
16
of right to con-
how qualified,
definition of,
15
15
17
17
18
18
19
....
how
19
20
20
20 to 47
covenant,
nature of the seizin,
not a mere trespass,
...
....
23, 24
20
20
22
24
applied also to covenant of right to convey,
.
.
26 to 29, 48
,
many States
30
probable reasons for,
....
denied in
breach
30
417
of,
by adverse possession
51
easements,
...
.
.
.
incumbrances,
removal of appurtenances to freehold,
.
in pleading on, sufficient to negative the words of
.
the covenant,
51
52
53, 54
INDEX.
779
SEIZIN,
covenant
for,
54
title,
.
54
55 to 57
measure of damages.
SET-OFF.
See
PURCHASE-MONEY.
SEVERAL COVENANTS,
JOINT AND SEVERAL COVENANTS.
See
SHARES,
when
SHERIFF'S SALE,
covenants for
title will
113
...
pass by,
352
SPECIALTY CREDITORS,
common law,
how enlarged by
rights of, at
in
....
....
when decreed,
not compellable when
right of dower,
generally,
of covenants for
586
to
589
Eng589 to 599
land,
in United States,
SPECIFIC PERFORMANCE,
statute
592
to
602
562
outstanding
123
title,
....
154
to ad-
ministration of assets,
.
158 to 162
are contained in
when covenants
voluntary conveyance,
160 to 162
STATUTE,
covenants implied by.
See
STRANGER,
adverse possession by,
when breach
of covenant
23, 24
for seizin,
259,260
165
enjoyment,
SUIT,
interruption by,
when a breach
joyment,
TAXES,
when breach
1 75
113
INDEX.
780
TENANT,
what implied covenant
may
...
....
....
261 to 268
262
264
.
.
exceptions to,
has no application to relations between ven-
268
TENANTS IN COMMON,
by descent, warranty implied in Pennsylvania, in partition by deed between,
may join or sever, in actions on covenants,
.
472, 473
606
TENURE,
warranty, an incident
of,
....
2,
609
TIMBER,
right to cut, a breach of covenant against incum-
114
brances,
TIME,
effect of, in freeing land
of,
594 to 596
602, 603
TITLE,
15,25
definition of,
TITLE PAPERS,
whether production of, can be compelled under covenant for further assurance,
195
TORTIOUS ACTS,
covenants for
title
do not extend
165
to,
self,
....
TORTIOUS
named
person,
when so expressed in the deed,
SEIZIN. See SEIZIN, COVENANT FOR.
TRESPASS,
no breach of covenant for
nor for quiet enjoyment,
70
171
...
seizin,
.
169
20
165
TRUSTEE,
....
112,566
565, 566
570
to
572
INDEX.
781
USES,
operation by estoppel, of conveyance taking effect under
See ESTOPPEL.
statute of.
........
whom
USUAL COVENANTS,
what
covenants for
title
should be
are,
353
550
to
568
554
549
549
VENDOR,
attorney of, responsible for unusual covenants,
what covenants demandable from,
....
549 to 553
general rules in England,
554
what are usual covenants, a question for jury,
vendor claiming by purchase, covenants against
his
*
own
acts only,
550 to 553
or
descent,
devise,
by
voluntary conveyance, covenants against acts of ances-
.
.
.
tor, testator, or grantor,
unqualified covenants demandable in mortgages
though,
when given
for
552, 553
552
purchase-money,
...
mortgagor,
and
in
common
leases,
457
to
460
552
subject to
be controlled by terms of
559
contract,
....
of covenants,
agreement by,
to give sufficient
deed not
fulfilled
556
by
559
to
565
562
562
fiduciary vendors,
....
565, 566
56 7
by
tes-
566
tator,
cestui
to
extent of
their interest,
test of application
66
567, 568
of rule,
568
INDEX.
782
VEND OK,
fiduciary vendors,
to
power
.agents,
power
sell
569, 570
to bind principal
fiduciary vendors personally liable on covenants of greater scope than are properly
'
demandable from,
possible exceptions,
570
to
572
....
demandable from,
VOLUNTARY CONVEYANCE,
572
no covenants
573
specific
when
decreed,
..
553
in,
160 to 162
VOLUNTARY DISPOSSESSION,
when
it
constitutes
an eviction
to
293
VOUCHER,
how employed,
when necessary
8,
to recover
on warranty,
238
238,239
WARRANTY,
implied as incident of tenure,
....
....
....
how
limited
by
statute de bigamis,
quia emptores,
205, 228
a means of redress,
.
by way of rebutter,
descended on heir at common law,
but as to rebutter, it operated on
204
4,
205
4,
4,394
4,11
399
....
United
States,
barred
how
tin-
introduced,
heir without assets,
restrained by statute of
where
re-i'ii;u-tnl in
395, 396
397, 398
5, 7,
Anne,
United States,
chartce t
7,
395
4,
collateral,
394
...
204
395
7, 395
397, 398
8, 205
INDEX.
783
....
WARRANTY,
remedy upon by voucher,
to other lands,
recovery on, whether limited
used as a personal covenant as to leaseholds,
distinction between,
205
9,
223
232
of chattels,
covenant
8,
205, 206
50
<
of,
United States,
and ancient warranty,
for title in
principal covenant
distinction between,
203
204 to 216
221
.
.
joyment,
covenants for seizin and
288
against incuinbrances,
form
...
of,
when
covenantee
limited,
may
covenantor,
what
224
225
...
226
228
229
231
given,
effect of notice,
when
when
conclusive on covenantor,
230
233
not,
237
nant,
breach
of,
generally,
....
to
warrant
524
293
nor,
it
166, 295 to
305
by
eviction,
actual eviction,
by process of law,
by entry,
voluntary abandonment,
dispossession
242
244
245 to 251
constructive eviction,
251
by inability to get possession,
by lease or purchase of adverse
title when established by a judg260
ment,
.
to
260
to
278
when
where
which represents the land,
293 to 305
INDEX.
784
WARRANTY,
....
pleadings on,
form of declaration,
measure of damages.
WANT OF
308
ESTATE,
effect of,
nants,
WARRANTIA CHARTS,
writ
of,
what
in
actions, allowed,
205
....
206
206
of,
238
....
205
WATER,
covenant of warranty does not,
it
seems, extend to
29-3
WATERCOURSE,
....
right to
51
113, 114
brances,
distinction
and
between natural
artificial
116
watercourse,
WAY,
how far a breach of covenants,
concealment of existence of, how far a fraud,
right of,
WIDOW.
See
616, 631
WILL,
vendor claiming under, what covenants demandable
553
from,
WITNESS,
covenantor,
release of
41, 380
covenants,
WORDS,
.......
signification of,
acts,
means,
172
172 to 179
consent, default,
179
112,567
.
188
to
193
words,
476
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