dlornpU Ham ^t\\m\ SItbrarg KF 661.R25T86r"'''''''''"^^ ^ii!?nm?,!.',f,f' •'■^^''se on the law of coven 3 1924 018 770 051 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018770051 PRACTICAL TREATISE THE LAW coyenantsh for title, WILLIAM HENRY RAWLE. THIRD EDITION, REVISED AND ENLARGED. BOSTON: LITTLE, BROWN AND COMPANY. 1860. Entered according to Act of Congress, in the year 1800, By WiLLiAiit Henry KawlE, in the Clerk's Office of the District Court of the United States for the Eastern District of Pennsylvania. KIVEESIDE, CAMBRIDGE: PRINTED BY H. O. HOUGHTON AND COMPANY. PREFACE TO THE THIRD EDITION. In th« preparation of this edition, the former trea- »tise has been carefully revised, and all the authori- ties pubhshed up to the present time have been incorporated. By a slight reduction in the size of the type, and by throwing parts of the former text into notes, the author has been enabled to present much new matter without increasing the size of the volume. With, the view of attaining greater accura- cy, he ha,s re-consulted every authority previously cite(f in the work. Philadelphia, June, 1860. PREFACE TO THE FIRST EDITION. This work is devoted to the consideration of the liabilities and rights of vendors and purchasers of real estate, arising from their Covenants for Title. As such covenants are, in some shape or form, intro- duced into nearly every conveyance of real estate, on both sides of the Atlantic, it is hoped that the Profession may not deem unnecessary a work which has for its object their analysis and practical effect. The subject is believed to possess a peculiar im- portance in this country. In England, the elaborate language in which these covenants are clothed al- most precludes a question as to their construction and operation. But our system of conveyancing is, in many important particulars, far less artificial, and the difference is in no respect more strikingly shown than in the form in which the covenants for title are expressed. The covenant of warranty, moreover, which is there almost unknown at the present day, VI PREFACE. is here more frequently employed than any other. The earlier settlers of our colonies left their mother country about the time when the modern system of law, which may be said to have had its rise at the end of the reign of Henry the Seventh, had, towards the latter part of that of Charles the Second, as- sumed something of a regular form. Of the changes which marked this period the discontinuance of real actions was one. The ancient warranty was nearly out of use, and the modern covenants were not fully in use ; and at this time, if we may judge from the scanty authority on the subject, the covenant of warranty was introduced, and seemed to hold a mid- dle ground between the old warranty on the one hand, and the modern covenants on the other; and although superseded in England by the latter, it was brought to this country by our ancestors, and has since, throughout its breadth, been extensively used, and become, perhaps, the principal covenant for title. The following arrangement of this subject has been adopted. The ancient warranty and the intro- duction of covenants for title — the covenant for sei- zin — the covenant of right to convey — the cove- nant against inciraibrances — the covenant for quiet enjoyment — the covenant for further assurance — and the covenant of warranty, are considered in detail and separately, with the examination, in the respective chapters, of the peculiarity and attributes PREFACE. Vll of each covenant, its form, definition, scope, and measure of damages. Then is considered the extent to which covenants for title run with tlie land — their operation by way of estoppel or rebutter — the doctrine of implied covenants for title, includ- ing the effect given to the words " grant, bargain, and sell," by statutory local enactments, and the ex- tent to which covenants for title;, whether express or implied, may be limited or qualified, either by the insertion of other covenants or by other clauses of a deed — the covenants which a purchaser has a right to expect, and which a vendor is bound to give — the liabilities and rights of the covenantor and covenantee, the heir, the devisee, the execu- tor or administrator, and the assignee ; and lastly, the right of the purchaser, at law and in equity, to detain or reclaim the purchase-money after the exe- cution of the deed. Philadelphia, February, 1852. CONTENTS. CHAPTEE I. THE ANCIENT WAEEANTT, AND THE INTRODUCTION OF COVENANTS FOR TITLE. Warranty, at common law, .... Modified by statutes de higamis and of quia emptores, Jlffect of warranty, ..... Origin of collateral warranty, Its effect, ...... Kestrained by statute, .... Remedy on warranty by warrantia chartCE and voucher, Introduction of covenants for title, Their number, object and advantages, 2 3 4 5 5 7 8 U 11 CHAPTEE II. THE COVENANT FOR SEIZIN. Definition of seizin as distinguished from title and possession, . Form of the covenant, ..... Its definition, ....... Doctrine that it is satisfied by an actual though tortious seizin, Its origin, ....... Applied also to covenant for right to convey. Dissent from the doctrine, ..... Reasons upon which it is supposed to have been based. Probable source from champerty acts, .... Sketch of those statutes ..... Effect of such statutes upon the covenants. 15 18 19 20 21 21 26 29 30 31 38 73 X - CONTENTS. Question whether, apart from their operation, the covenants are broken by adverse possession, ..... 45 Difficulties attendant upon abstractly treating covenants for title as part of law of real estate, . . • • • .49 Scope of the covenant for seizin, . . • • • ^^ Its breach by adverse possession, easements, &c. . . .51 In pleading, sufficient to negative the words of the covenant, . 53 Unnecessary to aver special damage, . . . • .64 Or to set forth particulars of paramount title, ... 54 Burden of proof, on whom it lies, . . . ■ .55 Measure of damages, . . . • • ■ 57 Ultimate measure of damages, the consideration-money and interest, 58 Evidence admissible to explain the true amount of the consideration, 65 Measure of damages when no consideration mentioned, . .69 Damages limited by amount paid to purchase the paramount title, . 71 Refusal to purchase, no bar to the recovery, . . . .71 Damages how regulated when purchaser still in undisturbed posses- sion. When only nominal damages are recoverable, . . .74 But their recovery will be a bar to a subsequent action, . . 75 Effect of recovery of the consideration-money upon the estate con- veyed, ........ 76 Reconveyance not necessary to recovery, .... 76 Effect upon the damages of acquisition of valid title by the vendor sub- sequent to the conveyance, . . . . . .80 Measure of damages when the breach is partial, ... 88 Average and relative value of the land, . . . .90 Partial breach does not give the right to rescind the contract, . 92 Limitations to the recovery of interest, . . . .93 Costs and counsel fees incurred in adverse suit recoverable, . 98 CHAPTER III. THE COVENANT FOE GOOD RIGHT TO CONVET. When synonymous with the covenant for seizin, . . . 105 When introduced in place of it, . . . . . 105 Its form, ........ 107 Breach, ........ 108 Pleadings and damages, . . . . . .108 CONTENTS. XI CHAPTER IV. THE COVENANT AGAINST INCUMBRANCES. In England, generally supplementary to covenant for quiet enjoy- ment, ........ 109 Effect of this, ....... 110 Its form, ........ 109 Ordinary trustee covenant, . . . . . 112 Breach of the covenant by taxes, judgments, mortgages, &o., . .113 Easements, . . . . . . . .114 Roads, . . . . . ... . -. 115 By right of dower, . . . . . .* . 119 Pleadings, . . . . . . . .125 Rule as to exception of known incumbrances, . . . 128 Purchaser's notice does not, in general, affect his right of action, . 128 General rules as to measure of damages, . . . .134 Where only nominal damages are recoverable, . . . 134 Where the breach is caused by existence of a term for life or years, 137 When the purchaser has removed the incumbrance by purchase, the damages are measured by the amount paid, . . .138 Provided it do not exceed the consideration-money, . . 138 Damages measured by the latter amount when the incumbrance has entirely defeated the estate conveyed, . . . -142 Local limitations in oases of mortgages where the right to redeem exists after foreclosure, . . . . . . 146 General rules where the incumbrance is a mortgage, . . . 141 Distinction between ordinary covenant against incumbrances, and a covenant to discharge incumbrances, . . . .153 Its effect upon the measure of damages, . . . .153 The former usually treated as a covenant of indemnity, . . 153 Jurisdiction of equity as to specific performance, . . .154 Exceptional cases upon principles of 9uia ft'mei, . . . 154 Or when incidental to the administration of assets, . . .158 Except, perhaps, where the covenants are contained in a voluntary conveyance, . . . . . • .160. CHAPTEE V. THE COVENANT FOK QUIET ENJOYMENT. Its definition, ...••••■ 163 Form, ........ 163 XU CONTENTS. In ground-rent deeds, . . .... 164 When limited to the acts of the grantor, .... 164 Rule that the covenant does not extend to tortious interruptions, . 165 Its exceptions, . . . . • ■ .167 Construction of the words by which the covenant is usually limited or qualified, . . . . . ■ .172 Breach of the covenant, ....•• 180 Pleadings, ........ 1^1 Burden of proof, . . • • • • .183 Damajies, ....■••• 183 CHAPTER VI. THE COVENANT FOR EUETHEE ASSURANCE. Advantage of this covenant, ...... 185 Its form, ........ 185 What acts are demandable under it, . . . . .186 Must be necessary and practicable, . . . . 187 Jurisdiction of equity in enforcing its specific performance, . .188 Removal of incumbrance, &c., may be required, . . . 188 Whether after acquired estate may be required to be conveyed, . 188 Covenants not demandable in deed of further assurance itself, . 196 Usual course to obtain fulfilment of the covenant, . . .196 Pleadings, ........ 197 Breach, ........ 199 Damages, . . . • . . . . . 200 CHAPTER VII. THE COVENANT OP WAEEANTY. Distinction between it and the old warranty, .... 204 Not always synonymous with covenant for quiet enjoyment, -. 221 The covenant of non-claim, ...... 222 Form of the covenant of warranty, .... 224 Efieet of notice to the covenantor of adverse suit against the cove- nantee, ........ 226 Breach of the covenant, ...... 240 Actual eviction, 1. Where it is by process of law, consequent upon a judgment, . 242 The older cases in New York overruled . . 243 CONTENTS. Xin 2. Where the dispossession is by entry, . . . .243 3. Where the possession is voluntarily surrendered, . . 245 Constructive eviction, 1. By the inability of the covenantee to obtain the possession, . 251 Application of this to uncultivated lands, . . . 255 2. Where the covenantee protects himself under the adverse title, after its establishment by a judgment, . . . 260 Suggested analogy to the estoppel of a tenant towards his land- lord's title, ....... 262 Origin of the rule, ...... 262 Its limits, ........ 264 Analogy fails as between vendor and purchaser, . . 268 3. Where the covenantee protects himself under the adverse title, without its establishment by a judgment, . . .278 Cases in which the whole question of title can be settled in equity, ....... 285 Limits to the application of constructive eviction, . . 288 4. Where the loss is of something which represents the laud, or of some incident to its enjoyment, .... 293 Release of damages from exercise of right of eminent domain is, it seems, no eviction, ...... 295 Constructive eviction caused by loss of consideration-money after a re-sale, ....... 299 Review of the cases upon the subject of eviction, . . 305 Pleadings, ........ 308 Measure of damages, . . . . . . 312 In some States the damages are measured by the value at the time of eviction, ........ 314 As in the civil law, ....... 316 In others, by the consideration-money, . . , . . 317 Distinction taken as to damages in admeasurement of dower, . .327 CHAPTER VIII. THE EXTENT TO WHICH COVENANTS FOE TITLE EUN WITH LAND, AND HEREIN OF THEIR EELBASE. Common-law rule which prohibited the assignment of cJioses in action, 333. No exception in the case of covenants, unless where they were to be performed on or about land, ..... 334' Requisites to enable covenants to run with land, . . . 334 6 xiv CONTENTS. Distinction between tlie benefit and burden of covenants, . . 335 All the covenants for title run with the land until breach, . . 336 But covenants for seizin, of right to convey, and against incumbrances, are held in United States to be broken as soon as made, . 336 Difierent doctrine in England and Indiana, . . • .337 Statutory provisions in Maine, . . . • • Doctrine in Ohio and Missouri, . . . • • '''*l Authorities upon vfhich the American doctrine is based, . . 348 Their explanation, ...•••• Different rule applied to the other covenants for title, . . 352 Its application to successive sets of purchasers, . • • 353 Doctrine that the covenants pass with the legal estate, applied to the case of mortgages, . . • • • • ^°" Result in England and in Kentucky, . . . . • 361 Different course of decision in most other States, where the covenants are held to pass with the equity of redemption, . . • 362 Remedy in equity, .....-• 365 Release of the covenants after conveyance of the land, ineffectual as against purchaser, . . . • ■ .367 Subsequent purchaser not bound by equities between covenantor and covenantee, . . . . . • • 369 Mode in which covenants may be released, or their performance dis- pensed with, ....... 369 Effect of a release by the covenantee while still the owner, . 371 Question whether such releases are within the registry acts, . .372 Application of these rules to those covenants which are held to be broken as soon as made, . . . . . .373 Right of the assignee to sue in the name of the covenantee, . 377 Doctrine that want of estate will deprive covenants of their capacity for running with land, ...... 382 Its effect under modern system of conveyancing, . . , 383 Not obviated by operation of estoppel, .... 386 Course of decision in New York and Massachusetts, that the covenants will pass with a possession under color of title, . . . 388 CHAPTER IX. THE OPERATION OF COVENANTS FOR TITLE BY WAT OF ESTOPPEL OK REBUTTER. Effect of the old warranty by way of rebutter, . . . 394 Statutes of Gloucester, of 1 1 Hen. VII., and of 4 Anne, . . 895 CONTENTS. XV Effect of statute of Anne in restraining operation of collateral war- ranty, ........ 397 Its re-enactment in several of tlie United States, . . . 398 Distinction at common law between rebutter and estoppel, . 402 Ordinary effect of an estoppel, ..... 402 Effect of estoppel as caused by feoffment, fine or recovery, and in leases, in passing after-acquired interests, . . . 402 This result not caused by a grant or release, .... 404 Nor by conveyance taking effect under the statute of uses, . 405 Early New York decisions that such an estoppel could be caused by bargain and sale, or lease and release, .... 408 Subsequent decisions denying such an effect, unless with the presence of a covenant of warranty, ..... 409 This operation given to the covenants generally adopted in the United States, ■ . . . . . . .411 Eevised statutes of Arkansas and Missouri on the subject, . 411 Limitations to the doctrine, ...... 414 Its application denied in Maine to the covenant of non-claim, . 414 And to the covenant for seizin, where that covenant is held to be satis- fied by the transfer of an actual seizin, .... 416 And where the after-acquired interest does not come within the cove- nant, ........ 416 And when the generality of the covenant is restrained by the context, 417 Reasons upon which the doctrine is capable of being based, . . 421 Its effect, as generally applied, 1. Between the purchaser and the grantor and his heirs, . 422 It forces the after-acquired title upon the former, nolens volens, . 424 2. Between the purchaser and a subsequent purchaser from the grantor, . . . . . . .427 Effect of application of the doctrine, in this relation upon the registry acts, ....... 430 Passages of Littleton and Coke on which the doctrine has generally been based, ....... 434 Their explanation, ....... 435 Doctrine as recognized in Pennsylvania, .... 441 In England, ........ 447 And by the Supreme Court of the United States, . . 455 No estoppel to purchaser created by covenants in a mortgage given for the purchase-money, . . . . . .457 Estoppel created by clause as to consideration-money, . . 460 Estoppel not created, in general, by the acceptance of an estate, . 463 XVI CONTENTS. CHAPTER X. IMPLIED COVENANTS, AND HOW COVENANTS FOK TITLE MAT BE LIMITED OE QUALIFIED. Implied warranty at common law, . . . • .467 Remedy upon it, ... . ... 469 Implied warranty and condition of re-entry in cases of exchange and partition, ........ 470 Its effect at the present day, ..... 473 Suggestions that covenants for title in the creation or transfer of a free- hold are implied from words of granting, . . . .474 Subsequent decisions to the contrary, .... 475 Covenants implied in creation of a leasehold from the words of leas- ing, ......... 476 Effect of such implied covenants, . . . . .478 Question as to what covenant is implied from the mere relation of land- lord and tenant, . . . . . . .479 The implied covenant restrained by express covenants in the deed, 483 And endures no longer than the estate out of which it is granted, . 484 Distinction between express and implied covenants, . . 485 Covenants from title not to be implied from a recital, . . . 488 How covenants for title may be limited or qualified, . . 490 When preceding restrictive words extend to all the covenants, . 493 When subsequent limited covenant will not restrain preceding general one, ........ 512 When preceding general covenant will not enlarge subsequent one, . 518 When restrictive words do not operate, the covenants being of differ- ent natures, ........ 519 Jurisdiction of equity in reforming covenants, . . . 521 Covenant for quantity of land conveyed is not to be implied from the covenants for title, . . . . . . .524 Covenants restrained by descriptive context, or limited interest, . 525 Exceptions, ••...... 530 Covenants for title implied by statutory enactment, . . 533 Statute of 6 Anne, by which certain covenants are implied from the words grant, bargain, and sell, ■ • . . . 533 Recent enactments in England, ..... 535 Statute of Anne partially re-enacted in Pennsylvania, . .537 And copied in many of the United States, . . . 542 CONTENTS. XVU CHAPTER XI. WHAT COVENANTS FOH TITLE A PURCHASER HAS A RIGHT TO EXPECT. General rules in England as to what covenants are demandable from a vendor, ........ 549 The covenants only extend to his own acts or those of his ancestor or testator, ........ 551 Except in cases of mortgages and leases, .... 552 No precise rules established in United States upon the subjects of proper or usual covenants, ....... 554 The absence or presence of covenants causes no presumption of notice of defect, on the part of the purchaser, .... 556 Practice always liable to be controlled by the terms of the articles of 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, . 559 Subsequent authorities overruling these, .... 561 Rule in equity as to marketable titles, . . . .562 Fiduciary vendors, as trustees, &c., only covenant that they have done no act to incumber, ....... 566 But covenants for title are, in general, demandable from the cestui que trusts, ........ 567 Power of sale given to an agent implies a power to covenant for the title, ......... 570 When agents, &o., are personally liable upon covenants given by them- selves, . . . . . . . .571 No covenants demandable from ministerial vendors, . . .573 CHAPTER XII. WHO ARE BOUND BY, AND WHO MAT TAKE ADVANTAGE OF COVENANTS FOR TITLE. Liability of the covenantor, . . . , .574 Often a material circumstance in the marshalling of assets, . .574 How effected by bankruptcy, . . .' . . 577 Joint or several liability, . . . . . .578 Liability of a married woman upon covenants contained in a fine, 578 XVIU CONTENTS. But in no other species of assurance, . . • • .579 Jurisdiction of equity in quieting titles at the instance of the cove- nantor, . . ■ . . . . ■ .581 Liability of the heir, ....■•• ^^^ Dependent upon his having assets by descent, . • • "°' Remedy, at common law, against the heir, . . . • 5°' Extended by statute of fraudulent devises, . . ■ • 589 Its imperfection, ....-•• 5°*^ Subsequent legislation in England, . . . • .591 Difference between English and American law as to liability of lands for payment of debts, ...... 591 Local provisions as to the time within which claims can be enforced, 594 Liability of the devisee, ....•• 594 Not bound, at common law, by debts of his testator, . . • 595 Statute of fraudulent devises, . . • . .596 Its effect, ......•• 597 How subsequently altered, ....-• 598 Damages recovered upon covenants for title of a testator come within a devise for the payment of debts, . ■ • 598 Liability of the executor or administrator, .... 599 He is bound, although not named in the covenant, . . 599 And whether the covenants are broken before or after the death of the covenantor, ....... 600 Liabihty of the assignee, ...... 601 Where the conveyance is of a leasehold, the covenants are binding upon the assignee of the reversion, .... 601 'Eights of the covenantee, ...... 602 'Dependent upon the nature of the covenant, . . . 602 How affected by lapse of time, ..... 602 'Upon covenants which are broken as soon as made, presumption of satisfaction from lapse of time begins to run from the date of the deed, 602 .Joint and several covenants, ...... 603 Their construction depends upon the interest taken by the cove- nantees, ........ 603 Mr. Preston's opinion and the recent cases in the Exchequer, . 604 'Result of the authorities, ...... 605 ;B,ights of the heir and devisee, ..... 607 These are restricted, in the United States, to such covenants as are not held to be broken as soon as made, "... 608 iRights of the executor or administrator, .... 609 Of the assignee, ....... 610 CONTENTS. xix CHAPTER XIII. THE purchaser's RIGHT TO RECOVER BACK OR DETAIN THE PURCHASE-MONET AFTER THE EXECUTION OF THE DEED. Distinction between the rules which govern the contract while execu- tory and when executed, . . . . . .611 Connection between the purchaser's right to relief and the covenants for title, ........ 613 In the absence of covenants, the purchaser can neither detain nor re- claim his purchase-money, Exception in the case of fraud or concealment. Jurisdiction of equity in rescinding the contract, Recent cases on this subject in the House of Lords, Difficulty in the application of admitted principles. What constitutes fraud, .... Difference between fraud and mistake. Simplex commendatio non obligat. Distinction between suppressio veri and allegatio falsi, Equity of the purchaser affected by his delay. Principles upon which the purchaser's right to detain or reclaim pur- chase money is based, ...... 636 Common-law rules in restricting each suit to the subject-matter of plaintifi''s demand, ...... 636 How modified by statutes of set-off and bankruptcy, . . . 636 Growth of the doctrine that purchaser may take advantage of breach of warranty of a chattel, in an action for its price, . • 637 Different grounds upon which such a doctrine has been based, ■ 637 Kecoupment, ....... 638 But the principle is that of preventing circuity of action, . . 638 Common-law rule which precluded inquiry into the consideration of a specialty, ....... 639 How modified in United States by statutes, . . . .639 Purchaser's rights as plaintiff must be asserted in action of covenant, and not of assumpsit, ...... 640 What is the consideration for the purchase-money of real estate, . 641 Application of these principles to the covenants for title, . . 644 Mere absence of title no defence to payment of purchase-money, . 646 But such a defence is maintainable where there has been an eviction, 672 Or to the extent of the amount paid to purchase the paramount title, 673 Jurisdiction of equity in rescinding the contract, or enjoining collec- tion of the purchase-money, . . . . • .676 . 613 615 . 616 616 . 619 620 . 621 623 . 626 628 XX CONTENTS. In general, no grounds for its exercise exist, unless where the pur- chaser has a present right to damages upon his covenants, . 677 Its exercise where such is the case, . . ■ • • ^86 Statutory provisions in Missouri, ... .690 Quia timet jurisdiction in cases of insolvency or non-residence of the covenantor, . . . . . . • .691 But these cases are dependent upon the actual prosecution of the paramount title, . . . . . • ■ 693 Cases where all the parties to the title are before the court, . .696 Doctrine in South Carolina, as to rights of the purchaser in this con- nection, ........ 700 The earlier cases modified, ...... 705 Result of the authorities, ...... 706 Peculiar doctrine prevalent in Pennsylvania, .... 703 The purchaser's right to detain purchase-money not wholly dependent upon the presence of covenants, . . . . .707 Purchaser may defend by reason of clear defect or incumbrance, un- less he was to run the risk of the title, . . . .713 Application of this rule, 1. Where the defect or incumbrance is unknown, . . . 714 What must be its character, ..... 715 What will be deemed notice on the part of the purchaser, . 721 2. Where there is a known defect or incumbrance and no covenant, 723 Distinction between a defect of title and an incumbrance, . 723 In case of the former, the absence of covenant raises a pre- sumption that the purchaser was to run the risk of the title, . 724 But such a presumption is not a conclusive one, . . 725 In certain cases of an incumbrance, it seems that not even a pre- sumption arises, ...... 727 3. Where there is a covenant against a known defect or incum- brance, ....... 733 Purchaser cannot detain purchase-money where his knowledge and the state of facts continue the same as at the time of the conveyance, ....... 735 But where the covenant is broken, he may defend himself to the extent of his damages, ..... 733 Cases where the consideration-money is in the form of an annual ground-rent, ......_ y^Q Distinction between cross demand and equitable failure of con- sideration, ••..... 741 Where the defence is a legal one, the purchaser may set-off, and recover his damages under the defalcation act, . . 741 But where it is equitable, he can only detain the ground-rent to the extent of the failure of consideration, . . .742 INDEX TO CASES CITED. Abbott w. Allen 23,48,54,57,614, 676, 677, 679, 682, 695 Abby V. Goodrieli 368 Aberdeen i;. Blacktnar 135 Abercrombie v. Baldwin 41 V. Owens 706 Abernatby v. Boazman 41 Ackroyd v. Smithson 61 Adams v. Gibney 481, 484, 600 Aiken v. Sanford 560 Aldrich V. Cooper 149, 158, 576 Aldridge v. Burlinson 580 Alexander v. Gibson 570 V. Schreiber 78,367,370, 371,377,381, 547, 548 Alfrey v. Blackamore 199 Allen V. Addington 621, 627 V. Anderson 59 V. Cameron 637 V. Gault 472 V. Holton 528, 529, 530 D. Hopson 614 K.Lee 131 V. Little 344, 359 ti. Eoundtree 233 J). Sayward 416,476 V. Winslow's Admr. 566 V. Woolley 386 Allison V. Allison 214, 219 And&rson v. Burnett 623 V. Cox 71 V. Hill 623 V. Lincoln 684 V. Martindale 604, 605 V. Miller 380 Anderton v. Arrowsmith 96 Andrew v. Pearce 384, 600 Andrews v. Beecker 377, 380 V. Eddon 196 V. MeCoy 545, 672 V. Paradise 181 V. Wolcott 362, 365 V. Word 557, 561 Anson v. Lee 34 Appleton V. Binks 570- Armstead v. Hundley 621 Armstrong v. Darby 193, 547 Arnold v. McNeill 368 Astor V. Miller 355 Atherton v. Atherton 593 Atkins V. Bahrett 562 Atvvood V. Vincent 700 Attwood V. Small 619, 625 Atty.-Gen. v. Morgan 666 Auwerter v. Mathiot 713 Aven V. Beckom 566, 572 Averall v. Wade 158, 575, 576 Averill v. Wilson 268, 464 Ayer v. Austin 57 B. Babcock v. Wilson 562 Baber v. Harris 477 Bacchus V. McCoy 22, 63, 339 Bacon v. Lincoln 52, 54, 57 Bailey y. Miltenberger 117,305 Baker v. Bulstrode 196 V. Dewey 66 V. Whiting 32 Baldwin v. Munn 135, 138 Ballard v. Ballard Vale Co. 114 Ballet !>. Ballet 61 Bailey v. Wella 294, 300 Bandey v. Cartwright 479, 481 Bank of Utica M. Mersereau 76,413, 427 Banks v. Ammon 722 V. Walker 683 V. White 479, 483 V. Whitehead 255, 312 Banskett v. Jones 624 Barber v. Backus 647 Barclay v. Raine 195 Barley v. Walford 621 Barker v. Richardson 380 Barkhamsted v. Case 684 Barnes v. Learned 68 Barnett u. Gaines 123,124 V. Montgomery 101, 157 Barney ». Keith 469,477 Barrett v. Porter 144, 145 XXll INDEX TO CASES CITED. Page Barrow v. Bispham 561 Bartlett v. Pearson 380 Barton v. Fitzgerald 508, 509 V. Morris 412 Bartram v. Whichcote 471 Bashore v. Whisler 713 Basten v. Butter 637, 650 Batchelder v. Sturgis 127, 130, 136, 137, 138 Bates V. Delavan 683 V. Noreross 399 Batterman v. Pierce 638, 649 Baxter v. Bradbury 22, 80, 81, 88, 89, 412, 423, 425 V. Eyerss 359, 478, 482 Bayard v. McLane 35, 36 Beach v. Packard 66 V. Steele 561 .;. Waddell 684, 685 Beale v. Seiveley 614, 682, 684 Beall V. Taylor 587 Bean v. Herrick 524, 626, 627 V. Mayo 113, 134 t. Welsh 412, 423 Bearce v. Jackson 21 Beardsley v. Knight 312, 387 Beauchamp v. Damory 93 Beaupland v. McKeen 715, 717, 721 Beck V. Simmons 685 Beddoes Exrs. v. Wadsworth 23, 342, 388, 389, 390, 609 Beebe v. Swartwout 166, 240, 247, 260, 465, 685,691 Beidelman v. Foulk 725 Belden v. Pitkins 38, 40 V. Seymour 67, 68, 524, 672 Bell V. Henderson 623 V. riiggins 220 V. Twilight 410, 418 Bellas y. McCarthy 444, 594 Bender v. Fromberger 54, 58, 61, 65, 78, 226,233, 320, 502, 539 Benner v. Evans 328 V. Phillips 593 Bennett !). Jenkins 94,319 V. VVomack 554 Bensley D. Burdon 190, 191, 404, 405, 408,453 Benson v. Benson 688 Bergin v. McFarland 594 Betts V. Union Bank 66 Bevis V. Smith 273 Bickford v. Page 108, 121, 125, 342, 345, 353 Bigelow V. Finch 268 Page BIgelow V. Jones 815 Biggus V. Bradly 703 Bingham v. Weiderwax 66, 68 ,85, 426 Bird V. Smith 54, 381 602 Birney v. Haim 576 Birtwbistle v. Vardill 43 Biscoe V. Perkins 563 Bissell V. Erwin 316 BItner v. Brough 69, 123 Bivins v. V^inzant 432 Black V. Barton 621 V. Gilmore 476 478 Blackmore v. Shelby 426 Blackwell d. Nash 369 Blair v. Claxton 673 i>. Duncan 131 V. Rankin 124 478 Blake v. Buchanan 78, 96 380 V. Tucker 412 Blakely v. Grant 311 Blanchard y. Brooks 410,412,419, 420,526, 629, 530 U.Ellis 77,87,146,427 r. Hoxie54,55,90, 92, 182 Blasdale i'. Babcock 233 Blatchford v. The Mayor of Ply- mouth 175 Bledsoe v. Eodgers 35 Blicke !). Dymoke 198,199 Blight's Lessee v. Rochester 268 Blin V. Pierce 377 Bloss V. Kittridge 480 Blossom V. Knox 321 Blydenburgh y. Cotheal 219, 247, 342 Brackenridge v. Dawson 666 Bradburne v. Botfield 604, 605 Bradford u. Long 157 V. Potts 737 Bradley v. Chase 621 «. Commissioners 154 Bragg V. Wiseman 485 Brandt y. Foster 614,638,673,676 Bodley v. McCord 667 Bogy V. Shoabs 411, 446 BoUes V. Beach 461 Bolton !'. Johns 66 Bond V. Bond 146 Bond's Admrs. v. Ward 233 Booker v. Bell 214, 226, 233, 234, 236, 237, 321 Bool V. Mix 62 Boones V. Eyre 657 Booth V. Starr 154, 243, 850, 354, 858, 388, 594 INDEX TO CASES CITED. xxin Page Page Boothby V. Hathaway 22 Buckley v. Nightingale 587 Bordeaux v. Cave 702 705, 706 V Williams 182 Bottorf v. Smith 78, 339 Buell V. Tate 660 Boulney v. Curteys 188 Bulkley i'. Landon 380 Bowen v. Thrall 558 687, 691 Bull V. Willard 613 Bowman v. Taylor 407, 466 V. Wiott 413 V. Watham 35 Bullard v. Brigg-i 66, 67 Bowyer v. Rlvitt 588 Bumpus V. Plainer 676 695 Boyd V. Armstrong 592 Burbank v. Gould 66 V. Berrell 593 Burchard v. Hubbard 421 V. Bopst 706 Burgh V. Legge 311 V. Whitfield 227, 229 Burhans v. Vansant 284 Breck V. Young 21 Burke v. Green 32 Breckenridge v. Moore 35,40,43 Burnet v. Jenkins 101 Bree v. Holbeck 614 617 707 V. Lynch 479 Brewster v. Kitchell 335 Burnett v. Montgomery 255 Brice V. Brice 627 Burns v. Wilkinson 275 Brick V. Coster 166 717 Burrell v. Jones 571 Brigham v. Smith 420 Burroughs v. McNeil 155 Bright- V. Boyd 320 325 Burton v. Schermerhorn 674 Brinley v. Whiting 35 V. Stewart 653 Britton V. Turner 637 Burwell v. Jackson 562 612 614 Brock V. Southwick 648 661 Busby V. Littlefield 129 Brocksopp V. Lucas 612 Bush V. Bradley 256 Brooks V. Fowls 584 V. Cooper 136, 413 545 577 V. Moody 127, 134, 136, ,.. Keller 584 138 Butler V. Gale 119 129 Broughton v. Conway 499 500 V. Miller 614 Brown v. Brodhead 138 V. Swlnerton 179 , 180 V. Brown 491 520 Butman v. Hussey 614 V. Cannon 561 Byrnes v. Rich 6 5, 70 V. Diekerson 269 271, 278, 283, 290, 320, 740 V. Gammon 560 V. Haywood 474 V. Jackson 419 D. McCormick 413,443 V. Staples 132, 370, 372, 459, 460 V. Starke 561 V. Storey 266 V. Taylor 226, 228, 230 V. Tomlinson 548 Browne v. Potter 463 Browning w. Wright, 17,182,474, 475, 488, 493, 495, 498, 500, 501,510,519, 523, 551,557 Brunnel v. Jackson 626 Bryan v. Smallwood 90 Buchanan v. Alwell 685 Buck V. fJabcock 35 V. Bininger 602 Buckels V. Mouzon 235 Buckingham's Lessee v. Hanna, 421, 423,427 C. Cadman v. Horner 612 Caines' Lessee v. Henderson 706 Caldwell V. Bower 290 V. Kirkpatriok 201, 219, 255 Calthorp v. Heyton 171 Calvert w. Sebright 158,177,526, 532,552 Campbell v. Whittingham 626 Canaan v. Turnpike Co. 74 Cane i;. Allen 138 Capenhurst v. Capenhurst 41 Careswell v. Vaughan 220 Carleton v. Tyler 578 Carlisle v. Blamire 360 Carnahan v. Hall 715 Carpenter v. Baily 560 V. Parker 1 78 V. Schermerhorn 434, 580 Carr v. Roach V. Roberts 613, 614 153 XXIV INDEX TO CASES CITED, Page Carrington v. Goddin 35 Carson v. Godley 479 Carter v. Cart&r 702, 705, 706 V. Denman 110, 112, 124, 125, 126, 313, 342, 352 K Flower 311 Carllirae v. Browne 604 Carver v. Astor 407 i\ Jackson 490 Gary v. Daniels 115 Case V. Brou;;hton 639 Caswell 0. Wendell 63, 315 Gates V. Loftns 154 Cathcart y. Bowman 114 Catlin V. Hurlbut 26, 31, 76, 78 Caulkins v. Harris 93 Gavan v. Pultney 173 Gave V. Brookesby 167 Cavis V. McClary 360 Chace V. Hinman 135 V. AVeston 354, 359, 367, 661 Chairs v. Hobson 35 Chambers r. Pleak 265 V. Smith 342, 547, 602 V. Spence 580 Chamberlain r. MeLurg 734 Champion v. Brown 155 Ghamplin w. Dotson 6 75 V. Lay tin 621 Ghampness v. Johnson 220 Chandler v. Marsh 674 Chandelor v. Lopus 629, 638 Chapel V. Bull 21, 138, 144, 145 Chaplain p. Briscoe 661 V. Southgate 171 Chapman v. Holmes 108, 214, 226, 342 V. Robertson 43 Charnley )'. Hansbury 432 Chastaine v. Staten 566 Ghauvin V. Wagner 397,416,418, 434 Cheiny v. Langley 484 Ghesterman v. Gardiner 683 Chesnut'Hill Reservoir Co. v. Chase 380 Chew V. Barnet 422, 442, 444 Chipman v. City of Hartford 581 Chisholme v. Starke 154 Cholmondeley v. Clinton 32 Christine v. Gotwalt 489 V. Whitehill 475, 524 Christmas v. Oliver 403 Christy ;•. Reynolds 730, 738 Church V. Brown 477, 549, 551 Page Church V. Leavenworth 74 Churchill v. Hunt 154 Clagget V. Hall 66 Clanch V. Allen 3, 545 Clanrickard v. Sidney 495 526 Clapp V. Coble 267 283 V. Tirrell 66 Clark V. Baird 624 V. Carrington 233 V. Gleghorn 692 V. Hardgrove 682 I'. Johnson 368 u. McAnulty 31,48,54,67, 219, 246, 297, 309 V. Redman 558, 559, 561 V. Parr 63, 94, 113, 125, 320 V. Perry 113, 125, 134 V. Scudder 576 V. Seirer 123 V. Smith 342 u. Snelling 660 V. Swift 346, 377, 381, 602 Clarke v. Faux 612 V. Samson 474 Clarke's Lessee v. Courtney 256 Clanton v. Burges 684 Clermont v. Tasburgh 612 Cloak V. Harper 479 Cloake v. Hooper 251 Clowes V. Dickinson 148 Clows V. Higginson 564 Glute V. Robinson 560, 561 Cobb V. Arnold 263, 264 Coble V. Wellborn 180, 243 Cocke V. Brogan 41 1 Gockell V. Taylor 34 Coe V. Persons Unknown 420 V. Talcott 572 Coger V. McGee 68 Colcord V. Swan 433, 580 Coldcot V. Hill 522 Cole V. Alberts 66 . V. Justice 671 V. Lee 224, 273, 280, 292, 526 V. Sims 155 Coleman v. Coleman 284 V. Rowe 684 V. Shenim 578 Coles V. Kinder 197 Collier v. Gamble 23, 79, 377, 547 CoUingwood V. Irwin 69, 130, 226, 231, 236 Colhns V. Blantern 40, 639 !'. Crouch 601 V. Evans 621 INDEX TO CASES CITED. XXV Collins V. Torry 463 Colvin V. Schell 103, 613, 727 Colwell V. Hamilton 560, 718 Combes v. Fisher 295 Combs V. Tarlton's Admr. 97 Comings v. Little, 134, 138, 578, 604 Commissioner in Equity v. Pear- son 705 Commonwealtli v. McClanaehan 614 Comstock V. Comstock 27 V. Smith 52, 410, 413, 416, 420 , Gregg Concord Bank : Condrey v. West Connor v. Eddy Cook V. Field V. Mix Cooke I'. Founds V. Loxley Cooley V. Rankin Cooper V. Denne V. Granberry V. In re V. Singleton V. Watson Copeland v. Copeland Corbin v. Healy Cordwent v. Hunt Cornell v. Jackson, 622, 629 614, 644 460, 661 34 642, 648 20, 532 17. 263 685 563 368 229 648 226, 308 132 437,527 369 21, 30, 92, 375, 423, 517 Cortelyon v. Van Brundt 51 Corns V. 167 Coster V. Manufacturing Co. 573 I'. The Monroe Man. Co. 686, 688, 690 83, 84 377 Cotton V. Ward Cowan !'. Shields V. Silliman Cox V. Henry 68, 71, 94, 103, 320, 74 140, 613 589 V. King Cox's Heirs i>. Strode's Heirs 60, 63, 64, 98, 101, 226, 237 Craddock v. Stewart's Admr. 572 Craig V. Hopkins 614 V. Martin 320 Crawford v. Murphy 717 Crayford v. Crayfbrd 519 Cresson v. Miller 35, 555 Cripps V. Reade 612, 614, 552 Crittenden v. Craig 622 Crooker v. Jewell 367, 377 Crookhey v. AVoodward 154 Cross V. Robinson Crosse V. Young Crouch V. Fowle Crowninshield v. Robin Crutcher v. Stump Culler V. Motzer Cullum V. The Branch Mobile Cully V. Doe Cumber v. Wane Gumming v. Gumming Cummins v. Kennedy Cunningham v. Fithian 0. Knight V. Sharp Curry v. Lyles Curtis V. Curtis V. Deering 167, V. Hutton V. Spitty Cushman r. Blanchard Cutler V. Bower Cutter V. Davenport V. Powell Page 362,457, 460 167, 169 215,479 son 637 219 717 Bank at 668, 672, 692 46 369 576 G3, 65, 255 629 367, 368,380 561 66 415 254, 301, 667 43 355 21,30, 315 657 43 638 D. Dalby i'. Pullen Dale I'. Rosevelt Dalzell V. Crawford Danforth v. Streeter Daniel v. Mitchell Dart V. Dart Davenport v. Bartlett Davie v. Sacheverell Davies v. Churchman Davis V. Atkins V. Darrows V. Keller V. Logan V. Lyman 134, V. McVickers V. Sims ii. Smith V. Tarwater V. Wilbourne Davy V. Pepys Dawson v. Dyer Day V. Brown V. Chism V. Nix Deakins v. HoUis 612 621 563 35 621 410 273 170 588 524 463 412 236,274, 700 136, 138, 342, 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 INDEX TO CASES CITED. Page Dearborn v. Cross 369 Dearth v. Williamson 560 Decharms v. Horwood 606 Decker v. Caskey 407 Deering v. Farrington 484 DeForrest v. Leete 125 126 Delavergne v. Norris 134, 135 138 Den V. Brewer 407 V. Desmarest 434 580 V. Forsyth 437 V. Geiger 41 V. Young 437 Dennis v. Heath 237, 247, 255, 663, 664, 667 Denny v. Wickliffe 700 Denston v. Morris 683 Dentler v. Brown 720 Derby v. Jones 420 Desha V. Robinson 638 Devorn v. Johnson 237 Dexter v. Mauley 66, 68, 137, 142, 176, 183, 477, 479 V. Nelson 35 Dickens v. Shepperd 91 Dickerson J). Talbot 412,427 Dickinson v. Hall 673 V. Hoomes' Admr. 355, 37 7, 387, 390, 393, 606, 507, 557, 587 )>. Voorhees 280, 290, 723 Dickson v. Desire 71, 321, 341, 392, 54 7 Dillon V. Coppin 161 Dimmick v. Loekwood 71, 138, 140, 141, 142 Dix V. School District 661 Doane t). Willcutt 416 Dobbins v. Brown 117, 216, 291, 295, 299, 305 Dobel V. Stevens 625 Dodd V. Seymour 561, 569 Dodds V. Toner 673 Dodge V. Tileston 637 Dodswell V. Buchanan 410 Doe V. Barton 265 V. Cassiday 369 d. Christmas v. Oliver 404 V. Errington 456 V. Evans 34 V. Hays 43 v. Hull 46 V. Lynea 16 V. Martyn 35, 46 Page Doe r. Oliver 263, 404, 408 t'. Potts 407 V. Prestwidge 452 V. Scarborough 404 V. Smythe 263 V. Stanion 662 u. Prince 476 V. Jones 403 V. Whitehead 437 Dominick v. Michael 420, 434, 580 Donelson v. Weakley 623 Dounell V. Thompson 69, 74, 1 24, 125, 130, 273, 274 Donohoe v. Emery 148, 572, 578 Dorchester v. Coventry 328 Doremus v. Bond 6 75 Dorr V. Fisher 638 Dorsey v. Dashill 154 V. Jackman 706, 710, 717 Doswell V. Buchanan 412 Dougherty v. Duvall's Heirs 355 Doughty V. Bowman 601 Douglass u. Scott 427,428,431 Dow V. Lewis 4 69 Doyle V. Knapp 614 Drew V. Lord Norbury 452 V. Towle 96, 99, 101, 247, 661 Drinker v. Byers 725, 727 Drury v. Shumway 219, 315 Duchess of Kingston's case 267, 268, 394, 410, 424, 436, 457, 465 Dudley v. Codwell 412, 427 V. Folliott 166, 169 Duffield !).. Scott 227, 233, 238, 239 Dunimer v. Birch 125 Duncan v. Lane 663 V. McCullough 734 Dunklee v. The Wilton Railroad Co. 114, 115 Dunnica v. Sharp 108 Dunn V. Snell 377 a White 129,132,668,670 Dunseth v. The Bank of the U. S. 328 Dupuy V. Roebuck 249, 273 Duval V. Bibb 66 V. Craig 54, 126, 254, 273, 503, 572, 667 Duvoll V. Wilson 160 Dwight V. Cutler 555, 558, 661 Dwinel v. Veazie 566 Dyke i'. Sweeting 688 Dyott ii. Pendleton 245 INDEX TO CASES CITED. XXVU E. Eardley o. Owen 589 Earl of Bath v. Earl of Bradford 589, 599 Earle v. Earle 614 u. Middleton 318,319 Early v. Garrett 626, 627 Eastabrook v. Hapgood 345 V. Smith 69, 114, 273, 504 Eastman v. Wright 37 7 Eby V. Eby 560 Eccleston v. Clipsam 604 Eddy V. Travers 575 Edwards v. Applebee 190 ('. Bodine 679, 683 V. Brown 651 V. McLeay 616, 619, 631 V. Morris 684 V. Roys 41 V. Varick 410, 411 Ela V. Card 90, 94 Elder ti. True 141, 145, 148 EUand y. Llandaflf 118 Elliot y. Merryman 568 Elliott V. Boren 369 V. Heath 637 I'. Thompson 319, 684 Ellis V. Nimmo 160, 161 U.Welch 167,272,417 Elysville Manuf Co. v. Okisko Co. 66 English V. Benedict 622 Ennis v. Leach 566 Eshellmau's Lessee v. Hoke 398 Espy V. Anderson 555 Evans V. Dendy 702 V. Elliot 266 V. Sanders 578 V. Vaughan 177, 183 Eveleth v. Crouch 462 Everson v. Kirtland 560 Everts «. Brown 223 Ewins V. Calhoun 621 Exall V. Partridge 291 F. Fain v. Ayers 195 Fairbanks v. Williamson 223, 224, 382,412, 414, 456 Falconer v. Clark 614 Farley u. Briant 590,597,598 Page Farnsworth v. Garrard 637 Farrer i'. Nightingal 92 Farrington v. Barr 66 Farris v Smith 220 542 Farrow v. Mays 701 703 Fausset v. Carpenter 447 452 Feather v. Strohoecker 471 Feemster y. May 561 663 674 Fergus v. Gore 589 Ferguson v. Dent 489, 524 Ferrell v. Alder 227 Ferris v. Harshea 236, 247 Field y. Snell 349, 368, 372, 581 Fielder v. Studley 522 Fields V. Hunter 227, 236, 237 Finley y. Simpson 477 Finn y. Sleight 464 Fisher v. Salmon 673 y. Worrall 154 Fitch «. Baldwin 48, 7 7, 465 y. Seymour 114, 458 Fite V. Doe 35 Fitzgerald y. Beebe 266 Fitzhugh y. Croghan 25, 45, 48, 51 Fitzhugh's Heirs v. Tyler 407, 420 Fleming v. Gilbert 369 y. Harrison 557 Fletcher v. Button 561 Flight y. Cook 155 Floom y. Beard 54 Flureau y. Thornhill 59 Flynn y. Williams 400, 401 Foley V. Addenbrooke 604 y. Cowgill 623 Folliard v. Wallace 166 Foord y. Wilson 493, 498 Foote y. Burnet 22, 29, 71, 127, 135, 140, 211, 213, 220, 272, 320, 340 Ford u. Walsworth 368 Forster y. Fuller 571 Forster's E.xrs. v. Gillam 555, 730 Foss y. Stickney 77, 146 Foster y. Mapes 170 o. Pierson 126, 182, 243 y. Woods 132 Fowle V. Welsh 1 70 Fowler v. Poling 23, 247, 277, 290, 390, 690 V. Shearer 433, 580, 642 Fox y. Mackreth 623, 627 y. Mensch 714 410, 416 651 Franciscus y. Keigart 740, 742 -'. Widgery Franchot v. Leach XXVUl 1 NDE X TO C Page Frank v. Vinson 642 Franklin v. Carter 265 Frazer v. Skey 182, 479 £1. Tunis 588 Frazier v. Harvie 311 Freeman v. Lomas 636 V. Thayer 410 French v. Parish 100 Friedly v. Scheetz 573, 712,713, 723 Frink v. Cresswell 242, 251 V. Darst 410,411 Frisbee v. Hoffnagle 646, 648, 650, 652, 666 660, 668, 072 Frisby v. Ballance 410 Fritz V. Evans 593 Frontin v. Small 41, 484 Frost V. Earnest 166, 182 V. Raymond 475 477, 614 Fuhrman v. Loudon 722 726, 735 Fuller V. Hubbard 569 V. Wright 122, 123 Funk V. Cresswell 289, 293, 306, 648 V. Newcomer 412 u. Voneida 1 26 127, 128, 130, 138 154, 541 Furman v. Elmore 220 ,318,701 703 Furness v. Williams 465, 656 G. Gadsden v. Bank of Georgetown 103 Gainsford v. Griffith 491, 500, 548 Gale V. Gale 662 V. Reed 499 Galton V. Hancock 588 Gamble v. Collier 73 Gannard v. Esvala 689 Gans V. Renshaw 612, 619, 718 Gardiner y. Niles 110,154 Garfield o. Wilhams 23, 74, 34 2 Garlock v. Closs 388 Garrard v. Lantz 720 Garret v. Stuart 66 Garrett v. Cresson 721 Garrison v. Moore 741, 742 V. Sandford 342 Gartman v. Jones 684 Gaunt V. Wain man 463 Gay V. Hancock 682 Gayle v. Price 463 Gazeley v. Price Gee V. Pharr Gennings v. Norton George v. Putney Gervis V. Peade Geyer v. Girard Ghegan ii. Young Gibbs V. Thaj-er Gibson V. Colt V. D'Este II. Goldsmid Gilbert v. Turnpike Co. V. Wiman Gilchrist v. Bule Giles V. Dugro ti. Roe Gilkeson v. Snyder Gillam v. Briggs Gillett V. Ripon Gilman !'. Haven Ginn v. Hancock Glasscock r. Minor Glenn v. Thistle Glinnister v. Audley Godley v. Taylor Godson V. Smith Good V. Good V. Mylin Goodill 11. Brigham Goodright V. Forester Goodson V. Beacham Goodtltle V. Alker V. Bailey 0. Morgan V. Morse Goodwin v. Morse V. Taylor Gordon v. Beacham Goi-e V. Brazier Page 659, 660, 561 476, 544 101 248, 265, 267 496, 500 411,460 477 223, 412 569 619, 629 155, 191 229 569 92, 114 Goueher v. Helmbold Gough i>. Bell V. St. John Governeur v. Elmendorf 135 661 136 689 715 701 99 460 51, 113 629 665 53 594 74 742 732 106 16 442 51 404, 407 404, 406 404 638 233 422 150, 212, 213, 244, 316, 327, 592 572, 741, 104, 614 Graff V. Smith Gragg V. Richardson Graham v. Alsopp V. Tankerly Granger v. Collins Grannis y. Clark 215,312,469,477, 479 Grantland v. Wight 566, 682 Gratz V. Ewalt 540, 541, 544, 545 716 412 622 683, 695 692 103, 228 265 226, 237 480, 483 INDEX TO CASES CITED. XXIX Page Graves y. Leathers 40,43 Gray v. Briscoe 20, 48, 89, 98 V. Cox 650 0. I-Iandkinson 701, 704 Great Falls Co. u. Worster 439 Gregory v. Mayo 17 V. Scott 674 Green u. Biddle 320, 325 V. Campbell 693 V. Handkinson 154 V. James 386 V. McDonald 684 V. Winter 320 Greenby y. Wiloocks 48,166,242, 342, 345 Greenleaf «. Cook 648,649,650, 663 V. Queen 684 Greeno v. Munson 265 Greenvault v. Davis 67, 219, 243, 246, 247, 248, 257, 370 Greenwood v. Ligon 123, 561 u. Tiber 579 Greer v. Tenant 328 Greuelifc's Exrs. v. W 168, 204 Grice V. Scarborough 110, 125, 128, 129, 130,132 Gridley v. Tucker 641 Grifhu V. Fairbrother 21, 219, 359 V. Reynolds 92, 580 Griffith V. Kempshall 612, 626, 683 Grimes y Redmond 470, 526 V. Shrieve 320 Grist V. Hodges 243, 253, 342, 609 Griswold v. Allen 114, 294 y. Bigelow 592, 596 Guerard's Exrs. u. Rivers 62, 318 Guild y. Guild 102 Guion V. Knapp 575 GuUeyy. Grubbs 66 Guthrie o. Pugsley 89, 93 Gwynn u. Thomas 187,199 H. Hacker v. Storer 342 HatTey's Heirs v. Birchetts 158, 160, 247, 273, 319 Hagler v. Simpson 18, 243, 249 Hains y. Gardner 463 Haire y. Baker 127, 129, 143 Hale V. James 328, 329 Hall V. Chaffee V. Dean Hallett V. Middleton Halsey v. Reed Ham y. Ham 420 135, 138, 292 196 75, 152 410, 414 Hamblin v. Bank of Cumberland 463 Hamilton v. Cutts 226, 233, 242, 246, 247, 248, 249, 270, 281 V. Elliott 29, 77 V. Wilson 86, 342 Hamilton's Lessee v. Marsden 263 Hammatt v. Emerson 621, 622 Hamond y. Hill 1 73 Hancock v. Carlton 460 Hannah v. Henderson 275, 309 Hanson y. Buckner's Exrs. 23C, 237, 247, 321 Hardy v. Nelson 100, 101, 315, 460 Hare v. Cator 355 Harlow y. Thomas 68, 114, 129, 130, 131, 136 Harmer's Lessee y. Morris 4 1 2 Harper y. Burgh 477 y. Jeffries 715,718 Harrington v. Long 34 V. Stratton 638 Harris v. Goodwyn 369 V. Morris 614 y. Newell 74 V. Parker 67 V. Ransom 684 V. Tyson 627 Harrold v. Whitaker 606 Hart y. Baylor 64,98,715,718, 724 V. Porter's Exrs. 710, 711 V. Thompson 587 Hartley y. McAnulty 66 Harvey v. Alexander 66 u. Doe 41 Hastings v. Welborn 48 Hatch V. Cobb 686 Hawkes y. Orton 252,310 Hayden y. Mentzer 66 Hayes v. Bickerstaff 47, 164, 165, 182 Haynes v. Colvin 592 V. Stevens 100, 101, 458, 459 V. Young 119 Hazard v. Irwin 622 Heath V. Newman 663, 66 7 c,. Whidden 34-2,381,602, 603 XXX INDEX TO CASES CITED. Page Hedtres v. Kerr 'SS?, 570 Hellier u. Gaspard 476 Helps V. Hereford 403, 404 Henderson u. Hay 554 I). Henderson 66, 124, 138 !i. Overton 422 V. Vaux 154 Hennikor v. Turner 606 Hcnning v. Withers 318 Herbert y. Ford 637,643,660 Heron y. Treyne 196 Herriek v. Moore 119, 134 Herrin c. MoEntyre 354, 359, 470 Hersey v. Turbett 739 Hertzog v. Hertzog 323 Hervey v. Audland 160, 161, 589 Hesom v. Smyth 674 Hesse v. Stevenson 491,517,523, 548 Hext r. Morgan 706 Hickey v. Burt 380 Hiernw. Mill 611 Higdon V. Thomas 66 Higginbottom u. Cornwall 589 Hio-gins V. Johnson 158, 159 Hilly. Butler 661 0. Denio 623 V. Hobart 560 V. Ressegieu 552, 553, 562, 569 V. Varrell 311 Hill's Lessee v. West 433 Hinde v. Gray 479 Hingen c. Fayn 199 Hitchcock V. Giddings 621 V. Harrington 463 Kitchens v. Lander 34 Hoag V. Rathbun 683 Hobein v. Drewell 673 Hobson y. Middleton 112,567 Hodges V. Connor 702 u. Saunders 566, 613 Hodgson y. The East Lidia Co. 182 Hogan's Exr. u. Calvert 154 Hogins V. Plympton 480 Holden v. Pike 148 Holder u. Taylor 215,251,253,479 Holeridge y. Gillespie 284 Holland y. Jackson 438 HoUoway v. Headington 161 Holman v. Criswell 553 y. Johnson 40, 44 Holmes y. Sinnickson 101, 103, 319 Homer y. Purser 671 Hooker y. Folsom 660, 661 Hopkins v. Grazebrook y. Lee Hopkinson v. Lee Hopper y. Lutkins Horback v. Graj- Horsford y. Nichols V. Wright Houghtaling v. Lewis Hovey v. Newton Howard y. Doolittle V. Witham Howe V. Bass y. Walker 59 321 604, 605 686, 688 735 43 314 612 601 479 661 524 131 Howell y. Richards 17, 19, 48, 163, 165, 501, 505,506, 507, 548 Howes y. Barker 612 y. Brushfield 173,174 Hoy y. Taliaferro 236, 247, 648, 661, 663, 665, 667 Hoyt y. Dimon 412 c. Thompson 32 Hubbard y. Althorp 530 y. Norton 90,119,128,136, 460 Huiihes y. Bennet 520 Hulse V. White 319 Humphrey r. Phinney 329 Hunt V. Amidon 247, 275, 277, 290, 291, 355, 640 V. Cope 245 u. Dan vers 171 V. Moore 625 y. Orwig 370 Hunter v. Daniel 34 y. Graham 701, 704 y. Jameson 570 y. O'Neil 561 Hunting y. Sheldrake 597 Huntingdon v. Grantland 584 Huntly r. Waddell 476, 524 Hupp V. Hupp 696 Hurd V. Gushing 437, 527 V. Fletcher 176, 177 Hurn V. Soper 66 Hussams v. Dampier 649 Hutchins y. Moody 113 Hutchinson y. Stiles 592 Hyatt V. Seeley 553, 569 Hyde y. Dean of Windsor 221, 485 Iggulden y. May 477,493 INDEX TO CASES CITED. XXXI Page Page Ingalls V. Morgan 693 Jeter v. Glenn 51, 102, 110, 124, 216, IngersoU c. Sergeant 335, 740 220, 347, 542, 701 Ingram v. Morgan 685, 692 Jewell V. Porter 412 Innell v. Newman 380 Johnson v. Gere 679, 680, 681, 689 Innes v. Agnew 542 V. Holdsworth 380 V. Jackson 188 V. Irby 377 Ireland v. Bircham 175,498 V. Johnson 612, 614 Irish V. Johnston 477 u. Jones 684 Ischam v. Morrioe 408,418 V. Nott 191 Ives V. Miles 78 V. Nyce's Exr. 286, 287 V. Niles 226, 735, 738 V. Purvis 702 0. Van Epps 638 V. Proutor u. Simpson V. Smock 469, 488, 489 77 561 J. . V. Veal V. Viscon 703 220 Jack V. Dougherty 66 Joice V. Taylor 622 Jackson v. Barringer 524 Jones V. Barkley 369 493 (/. Bradford 409, 415, 444, V. Brodie 594 446 V. Gardiner 123 124 560 V. Bull 408, 409,418 V. Kearney 422 442 447 V. Defendorf 524 V. King 336 337 339 V. Demont 41 o. Ryde 614 u. Hathaway 51 V. Stanton 691 695 V. Hoffman 530 V. Waggoner 226 693 V. Hubble 409 r. Ward 66 V. McConnell 524 Jordan v. Twells 182 263 V. Murray 408 409, 418 Jourdan v. Jourdan 398 399 V. Sassaman 113 Judson V. Vi ass 560 612 V. Turner 319 Juvenal v. Jackson 737 740 V. Vanderheyden 434, 580 V. Waldron 409 411, 429 V. Wiuslow 409,412 K. V. Wright 409, 413 Jacock's Lessee i;. Gilliam 209 Kane v. Sanger 353 357 James v. Emery 606 Kaye v. Waghorn 369 V. Lawrenceburg Ins . Co. 648, Kearney v. Van Rensellaer 407 660 Keech V. Hall 271 V. McKernon 695 Keeler v. Wood 101 V. Patterson's Lessee 268 Keenan v. Gibson 593 Jaques v. Esler 131 681, 696 Keightly v. Watson 604 606 Jarvis v. Aikens 427, 431 Keith I'. Day 131 375 530 V. Buttrick 113 Kekewitch v. Manning 161 ,162 Jeffers v. Johnson 135 Kellogg V. IngersoU 115, 116, 118, JeiFerson v. Morton 591, 598 121 Jeffreys v. Jeffreys 160, 161 V. Wood 370 412 460 526 Jennison v. Blowers 577 Kelly V. Dutch Church 143 166, 182, Jenkins v. Bryant 588, 598 226 ,230 ,234 ,319 V. Hopkins 134 144,260, 381,602 V. Lord V. Low 127 273 V. Robertson 477 Kempshall v. Stone 686 Jennings v. Norton 154 Kenada v- Gardner 268 Jenness v. Parker 643, 659 Kendall v. Brown 437 Jerritt v. We^re 16,46,47 Kennedy v. Gouveia 571 XXXll INDEX TO CASES CITED. Kennedy v. McCartney 412 ,420 u. Newman 56 V. Skeer 407 ,443 Kent V. Allen 612 V. Welch 469 Kercheval v. Triplett 436 Kerr v. Kitchen 707 722 737 V. Shaw 242, 243 257 258 Kerrison v. Cole 40 Key V. Henson 661 Kibler v. Cureton 701 Kidder v. West 181 Kidney a. Stoddart 627 Kimball v. Blaisdell 223 ,412 Kimpton v. Walker 477 King V. Gunnison 714 V. Jones 188, 194 198, 200, 336, 337, 338, 352, 381 608 V. Kerr's Admrs. 226, 238, 272, 273 286 320 V. Norman 237 V. Pyle 65, 92 320 Kingdon v. Nottle 336, 33 7, 338, 343, 347, 352 607 608 Kingman v. Sparrow 464 Kingsberry v. Smith 101 Kingston v. Preston 493 Kinney o. McCulIough 302 V. Watts 31 9 322 478 Kinsman v. Loomis 410 Kip V. Brigham 233 Kirby v. Hansaker 182 Kirkendall v. Mitchell 21 558 Knapp V. Marlboro 477 V. Lee 64 2, 661 672 673 Knickerbacker v. Hillmore 626 Knight V. Turner 671 Knox V. Jenks 34 Roger V. Kane 682 Kortz V. Carpenter 242, 253, 257, 273, 389 Kruse v. Seripps 524 Kunckle v. Wynick 477 Kyle's Admr. v. Fauntleroy's Admr. 93, 94, 100, 158 L. Laing v. Fidgeon Lamar v. Simpson Lamerson v. Marvin 650 407 647, 648, 656, 658 Landydale w. Cheyney 478 Lane v. Drinkwater P04 Langworthy o. Smith 369 Lansing v. Van Alstyne 242, 243 Large v. Penn 524 Lassels v. Catterton 197 Latham v. Morgan 684, 694 Lathrop V. Atwood 154 V. Snell 661 Lattin V. Vail 647, 651 Lawless v. Collier 71, 78, 94, 96, 377 V. Gamble 79 Lawrence v. Dole 560 !>. Senter 368 V. Stonington Bank 674 Lawry p. Williams 412 Lea c. Dean 640 Leary v. Durham 201, 243, 247, 274, 275 Leather v. Poulteney 226, 233 Leavitt v. Savage 369 Ledger i\ Ewer 647 Lee V. Colehill 40 V. Dean 59, 65, 92, 325, 721 u. Foard 561 V. Rook 155 Leffingwell v. Elliot 101, 134, 280 Legge V. Croker 631 Leggett V. McCarty 6 79, 683, 684 Leg'h V. Legh 377, S80 Leiand v. Stone 68, 92 Leonard v. Bates 674 Le Ray de Chaumont v. Forsyth 354, 359 Lethbridge v. Mytton 153, 154, 350 Lewen v. Stone 154 Lewis V. Baird 420, 422 V. Campbell 183, 314, 384 f. Cook 352, 391 V. Hudson 154 V. Jones 51 V. Lewis 51, 275 V. Morton 685 V. Peake 99 V. Ridge 345, 348, 349, 350, .351, 352 V. Smith 166 V. Willis 268 Levit V. M'itheringtou 1 28 Liber v. Parsons 62, 318 Lienow v. Ellis 575 Lighty V. Shorb 685, 707, 708, 714, 724, 726, 727, 729, 731, 735, 736 IND EX ro c ASES CITED. xxxm Page Page Linderman v. Berg 227 Lyde V. Mynn 440 Liae v. Stephenson 215, 479, 484, 545 558 Lytle V. The State 35 Linn v. Barkej Linsey v. Ramsey 432 M. Lisk V. Woodrutl' 237 Little V. Bishop 35 McAllister v. Reab 639 V. Paddleford 561 McAlpin V. Lee 637 Littlefield v. Getchell 368 373 BIcBurney v. Cutler 407 Livingston v. Peru Iron Co. 41 MuCall V. Coover 444 V. Prose us 41 McCarty v. Leggett 48, 80 ,86, 342, Lloyd D.Jewell 641, 742, 643, 648, 423 661 673 McClenachan v. Curwin 118 V. Lloyd 191 453 McClowry r. Croghan 69 320 485 V. Quunby 128, 145, 146, 366, 552 McClure v. Gamble 320, 355, 600 356, 607 V. Tomkies 167 169 McCoy I'. Lord 291 Lobdell (/. Baker 622 McCracken v. Wright 446 Lockridge v. Foster 622 629 McCrady v. Brisbane 345 362 Lock wood V. Sturdevant 27 ,90, 364, McCrea v. Purmort 66, 67 291 552 McCulIough V. Cox 653 657 Logan V. Moore 412 McDaniel v. Grace 673 676 V. Moulder 63 321 342 McDonald v. Green 684 685 V. Steel 412 McDonnell v. Hunter 236 247 Lomas v. Wright 689 699 McFerran v. Taylor 622 Loomis V. Bedel 100, 247, 255, 272, McGehee !•. Jones 685 691 280, 281, 283, McGinnis v. Noble 719 720 319 McGoodwin v. Stephenson 361 362 V. Pingree 414 415 418 McKay v. Carrington 674 Long V. Allen 674 McKee v. Pfout 440 V. Israel 682 685 Mclvenuan u. Dougliman 130 V. Moler 113 130 131 McKenzie v. The City of L ex- Lord Cawdor v. Lewis 325 ington 403 Lord V. Colley 621 McKinney v. Watts 76 581 V. Goddard 622 McKircher v. Hawley 267 Lorick V. Hawkins 524 Mc Knight v. Kellet 639 Lot V. Thomas 5J ,78, 342, 458, 460 McLean v. Barton McLelland i;. Hill 629 594 Lothrop V. Snell 224 McLemore v. Mabson 123, 671, 691 Lougher v. Williams 607 McMurphy v. Minot 360 Lovell «. Sherwin 589 Mc Williams v. Nisby 442 446 Lovering v. Levering 477 Mackey v. Collins 54, 220, 275, 318, Lowden v. Robertson 573 701 702 703 Lowell 0. Daniels 434 580 Maddock v. Wilmarth 35 Lowell, City of, v. Parker 236 Maeder v. City of Carondelet 168, Loyd V. Griffith 563 568 301, 477 480 Luckett V. Triplett 687 Magaw V. Lothrop 718 Lucy V. Levington 336 348 351 Maggridge v. Jones 637 Ludwell V. Newman 252 Maighley v. Hauer 67 Ludwick V. Huntzinger 613, 717, Major V. Brush 660 661 724 Manafee v. Morrison 673 Lukens v. Jones 732 Maner v. Washington 686 694 701 V. Nicholson 300 Maney v. Porter 614 Lunsford v. Turner 268 Mann v. Lent 637 XXXIV INDEX TO CASES CITED. Page Mann v. Ward 474 Manning v. Cox 377, 380 Markham v. Middleton 74 Markland v. Crump 352, 354, 359, 388 Marlow v. Smith 562 Marshall v. Craig 869 Marston v. Hobbs 21, 22, 27, 54, 57, 63, 65, 121, 125 Martin v. Atkinson 280, 321 V. Baker 48, 339 V. Dvvelly 434, 580 V. Foreman 661 V. Gordon 68, 370, 372, 392 V. Long 63 c. Martin 180 V. Pace 35 Martyn u. M'Namara 495 Mason v. Caldwell 572 u. Crosby 621, 622 V. Ham 572 V. Miincaster 412 Massie v. Sebastian 412, 427, 433 Masson v. Bovet 629 Master v. Miller 346, 376 Mather v. Trinity Church 256 Maule V. Ashmead 482 V. Weaver 477 Maundrell u. Maundrell 106 May V. Taylor 369 u. Wright 3 1 9 Mayo V. Babcock 126 u. Shattuek 26 7 Mayor of New York v. Mabie 167, 169, 479, 482 Poole V. Whitt 265,267 Mead v. Fox 560, 561 V. Johnson 569, 621 Means v. Brickell 706 Medbmy v. Watson 375 Medler u. Hiatt 129, 131 Medley v. Watson 622 Meeker v. Meeker 68 Megee v. Mellon 572 Mellen v. Boarman 572 Mercer v. Hall 638 Merceron v. Dowson 355 Merrill I). Frame 477, 484 Merritt v. Hunt 684 Messent v. Reynolds 480, 483 Metcalfe v. Archbishop of York 440 Michael v. Nutting 35 Middlebury College v. Cheney 412 Middlekauff u. Barrick 614 Middlemore v. Goodale Middleton v. Arnolds u. Thompson 188, 367, 372 35, 41 226, 231, 233, 249 Midgett «. Brooks 165 Midgley v. Lovelace 606 Miles V. Williamson 614 Miller v. Avery 237, 679, 683 V. Argyle 682 V. Ewing 223, 416, 419 V. Halsey 71, 145, 255 V. Heller 497 V. Long 684 V. Owen 684 V. Parsons 196, 198 V. Watson 640 Mills V. Auriol 477, 577 V. Bell 319 V. Catlin 27, 52, 90, 125, 137, 531, 687 V. Ladbroke 606 Milnes v. Branch 335 Miner v. Clark 226, 229, 249 Minor y. Edwards 612 Misher v. Misher 328 INIisner v. Granger 627 Mitchell V. Hazen 63, 561, 572 V. Pillsbury 113 V. Smith 38, 40 V. Warner 112, 114, 293, 294, 342, 343 Mobley u. Keys 561, 674 Moens v. Heyworth 620 Monahan u. Colgin 66 Mondell o. Steel 637, 639, 656 Moore v. Cable 320 V. Harrisburg Bank 560 V. Lanhan 219 V. Magrath 628 V. McKee 68 V. I'arker 400 V. Rake 412 0. Shelly 718 V. Vail 250, 255, 259, 260 Morgan v. Richardson 637, 647, 650 V. Smith 113, 126, 129, 132, 644, 674, 675 V. Swift 561 Morgan's Heirs v. Boone's Heirs 284 Morley v. Attenborough 50 V. PolhiU 336 Morris v. Abat 316 V. Buckley 738 INDEX TO CASES CITED. XXXV Morris v. Edo;ington 181 V. Harris 469 472 V. heake 40 V, Owens 525 V. Phelps 48, 77, 90, 92 721 V. Rowan 100, 103, 226, 239, 319 Morris's Lessee v. Smith 592 594 Morrison v. Beckwith 681 696 V. Jewell 643 V. Mc Arthur 52, 90 Morse v. Faulkner 452 V. (Joddard 267 V. Shattuok 68 V. Tucker 598 Mortlock V. BuUer 612 Morton v. Eidgway 320 Moseley v. Hunter 127, 544 Moslyn V. Fabrigas 576 Moss V. Gallimore 265 267 Mott V. Palmer 48, 53, 295 Mountford v. Catesby 165 166 Mountstephen v. Brooke 380 Moyer v. Shoemaker 640 Munroe v. Pritehett 622 Murphy v. Richardson 722, 724, 735 737 Murray v. Jayne 299 378 Muscat V. Ballet 54 Mussoa V. May 688 Myers v. Craig 401 N. Naglee v. Ingersoll 182, 269 Nance t). Elliott 614 Napier v. Elam 626 Napper v. Arlington 195 Nash-jJ. Ashton 52, 107, 188 V. Palmer 170 V. Spofford 433, 580 Nealle v. Wyllie 99 Nelson v. Harwood 434, 580 1,. Matthews 92,319 Nervin v. Munns 17, 495 Nesbit V. Brown 320, 386 V. Montgomery 385 Nesbitt V. Tredennick 284 New Barbadoes Toll Bridge Co. V. Vreeland 561 Newcombe v. Presbrey 223 Newkirk v. Cone 35 Newton v. Osborn 477 Nicholas !'. Jones Nichols V. Nichols 2'. Walter Nick V. Edwards Nind V. Marshall 505, Nixon V. Hyserott Noble V. Cass Noel V. Bcnley u. Bewley Noke V. Awder 383, 385, Nokes V. James Norcum v. Gatey Norman v. Cunningham V. Foster Norton v. Babcock 113, V. Herron Nutting V. Herbert Nyce's Exrs. v. Clark V. Obertz 90, O. O'Bannor v. Paramour Obbard v. Betham Oberhizer v. McCollister Ogilbie V. Foljambe O'Keefe v. Kennedy Oldfield V. Round V. Stevenson Oliver v. Piatt Ormrod v. Huth Osborne v. Atkins V. McMillan Osterhout v. Shoemaker Oswald u. M'Gehee Outram v. More wood Paeg 673 43 64 408 506, 508 569 355 422 442 387, 392 166 411 401 182, 501 141, 145, 149, 316 571 68 122 no, 287 412 650 79 134 167 169 118 661 656 621 346 576 670 572 268 464 622 74 Page V. Broom 566 V. Hill 268 Palmer v. Ekins 263, 408 V. AVetmore 245 V. Sparshott 606 Pargeter v. Harris 361, 386 Parham v. Randolph 622, 626 Parish v. Whitney 110, 114 Park V. Bates 226 228 , 255,315 Parke v. Chadwick 66 Parker v. Brown 21, 25, 28, 76 V. Dunn 243 XXXVl INDKX TO CASES CITED. Page Parker v. Harvey 589 V. Kelly 380 «. Parmelee 559,561,561 Parks !'. Brooks 123 Patrick v. Marshalls 320 Partridge v. Bere 362 V. Patten 224, 382, 414 V. Strange 32 Patterson ;;. Arthurs 116, 118, 120 V. Hulings 638 V. Lanning 472 U.Moore 437,447 V. Pease 412 V. Smith 154 V. Stewart 93, 94, 135 V. Taylor 684 Patterson's Lessee v. Pease 420 Patton V. England 671 V. Kennedy 170 V. McFarlane 216, 247, 283, 289, 309, 310 V. Taylor et al. 695 Paul V. Frost 368 V. Witraan 226, 229, 232, 236, 277, 297, 309, 356, 606, 607 Paxson V. Lefferts 217, 398 Payne v. Craft 593 V. Rogers 380 Pearson v. Morgan 626 Pecare v. Chouteau 525 Peck V. Smith 51 Peden t;. Moore 638,667 Peebles v. Estill 154 PoUetreau v. Jackson 409, 410, 441 Pember v. Mathers 155 Pence !). Duval 170,321,342 V. Huston's Exrs. 674 Pence's Heirs v. Duval's Heirs 609 Pendleton v. Dyott 245 Penn v. Lord Baltimore 587 V. Preston 717 Pennell v. Woodburn 99 Pennsylvania w. Simms 717 Peques v. Mosby 674 Percival v. Hurd 684, 685, 691 Perkins v. Webster 524 Perly v. Balch 638 Perrot 'v. Austin 600 Perry !'. Cotes 705 V. Edwards 1 70 V. Kline 412 Peter v. Farnsworth 570 Peters v. Grubb 294 V. McKeon 320 Page Pettee I). Hawes 114,346 Petts V. Gaw 524 Pharr v. Reynolds 671 Phelps y. Decker 41, 44, 642 V. Sawyer 31, 45, 234, 255,260 Phillips V. Claggett 377, 380 Philips V. Smith 320 Phcenix Ins. Co. v. Fiquet 647 Piatt V. Oliver 436 Pickering v. Busk 570 Picot V. Page 471 Pierce v. Emery 447 V. Johnson 23, 31, 342, 381, 602 Piersoll v. Elliott 583 Pierson v. Davis 318 Piggot V. Earl of Salisbury 408 Pike I'. Galvin 224,382,412,414, 415, 427 Pillsbury v. Mitchell 126, 127, 135, 343 Pimm V. Isall 591 Pincombe v. Rudge 9, 208, 213, 215, 300 Pintard v. Martin 629 Pitcher v. Livingston 58, 62, 64, 101, 135, 214, 325,326,565,559 Pitkin V. Leavitt 100, 101, 226, 228, 233, 236, 283 Plasket V. Beeby 596 Piatt V. Gilchrist 614, 679, 683 Plumer v. Marchant 588, 600 Plunket V. Penson 589, 596 Poillon V. Martin 362 Poke V. Kelly 716, 718, 730 Polk V. Sumpter 123 Pollard V. Dvvight 48, 54, 57 Pomeroy v. Burnett 135, 660 V. Drury 561 V. Partington 100, 227 Pomfret v. Ricroft 215, 294 Pool V. Pool 552 Poole V. Hill 606 Pope V. Biggs 265, 266 Porter v. HiU 77 D. Noyes 69,123,124,560 V. Sullivan 224, 465 V. Swetnam 477 Potter ti. Potter 400,412 V. Taylor 132, 342, 530 Poulton V. Lattimore 637 Pounsett V. Fuller 59 Powell V. Clarke 524 V. Lyles 542 INDEX TO CASES CITED. XXXVU Powell V. Manufacturing Co. 121, 328,329, 331 Powis V. Smith 606 Poyntell v. Spencer 247,261,277, 278,738 Prebble v. Boghurst 564 Preble v. Baldwin 461 Prescott V. Hobbs 344, 367 V. Trueman 23, 24, 112, 134, 136, 342 t). White 114 U.Williams 114,115 Preston K Trueman 122 Prevost V. Gratz 684 Prewit !'. Kenton 226, 237 Price u. Ayres 682 I). Neale 614 Pringle v. Whitten 220 V. Witten 48 Pritchard v. Atkinson 119 Proctor V. Johnson 600 V. Newton 182 V. Thrall 379 Prosser v. Edmonds 34 Puckett V. McDonald 681 Pudsey u. Newsam 197 Pugh V. Chesseldine 561 Pulcifer v. Hotchkiss 637 Putnam v. Ritchie 320 Pye V. Daubuz 190 Q. Quarles v. Capell 588 Quesnell v. Woodlief 524 R. Radcliff V. Ship Ralston v. Miller Randall v. Rigby Randell v. Mallet Randolph v. Kinney V. Meeks Ranelagh v. Hayes Rant V. Cock Rantin v. Robertson Rathbun v. Rathbun Rawlins v. Timberlake Raymond v. Fitch V. Raymond V. Squire 246, 247 682 600 134 387 201, 219, 255 75, 155 469 166 412 684, 694 336,609 22, 23, 25 377 d Kayner v. Watford 594 Reab V. McAllister 653 Read u. Pierce 134,136,138,577 V. Prentiss 637 Reasoner w. Edmondson 52, 113,135, 275, 339 Rector v. Waugh 218,421, 437, 439, 447, 471 Redd V. Wood 154 Redwine v. Brown 344, 352, 354, 359, 566, 584, 613 Reeder v. Craig Reese c. McQ.uilkin V. Smith Reggio V. Braggiotti Register v. Rowell Renshaw v. Gans Reynolds v. Buckle V. Davies Rice V. Goddard V. Spottiswood Rich V. Johnson V. Rich Richard v. Williams Richardson v. Bright V. Chasen V. Dorr V. Horton V. McKinson 412 93,309,312, 321 80, 81,422, 423 102 438, 447 718, 720 245 199 642, 673 342 93 520 592 626 127 27,134, 342 591 320 Rickert v. Snyder 54, 90, 101, 137, 244 476, 524, 542 336, 609 377, 378 Rickets v. Dickens V. Weaver Riddell v. Riddell Rigby V. Great Western Rail way Co. 517 Rigg V. Cook 412 Right w. Bucknell 190,453,456 d. JeflTerys v. Bucknell 404 Roake v. Kidd Roat V. Puff Robards v. Cooper Robb V. Lefevre Roberts et al. v. Woolbright Robertson v. Gaines Robinson v. Bakewell V. Bland V. Harman u. Neal V. Wilson Rookafeller v. Donelly Rocksell V. Allen Roe V. Hayley 664 524 661 369 685 412 103,132 43, 637, 647 59 542 637 135 573 608 54, xxxvni INDEX TO CASES CITED. Roe V. Swezey 592 Koebuck v. Depuy 544 Roffey w. Shallcross 612 Rogers V. Colt 639 V. Cross 586 V. Horn 573, 702 V. Payne 369 Roland w. Miller 717, 722 Roll V. Osborn 10 Romio; V. Romig 560 Romiily ;;. James 564 Root V. Croek 407, 444 Roscorla v. Thomas 480 Ross V. Deysarl 479 !.. Dysart 265,267 V. Turner 343 Row V. Dawson 362, 376, 377, 380 Rowntree v. Jacob 65 Royer v. Ake 476 Rueker v. Lowther 557, 570 Rufner v. MeConnel 586 Russell V. Clark 621 Ryan v. Atwater 74 S. Saeheverell v. Froggatt Sainsbury v. Jones Salmon v. Hoffman Salter v. Kidley Sampson v. Cooke Sanborn r. AVoodman Sanders jl Betts V. Hamilton Sanford v. Handy Sargent v. Gutterson 128, Saunders v. Johnson Savage v. Whithead Sawyer v. Cator Sohaffner v. Grutzmacher Schermerhorn v. Hayden Schlencker v. jVIoxsy Seott V. Alworthy V. Douglass V. Godwin V. Lunt's Admrs. Seudder v. Andrews Seabourn v. Powell Seaman v. Browning Seaton v. Barry Seddon v. Tutor Sedgwick v. HoUeuback 607 686 661 405 65 132 528 233 624 , 130, 368 604 133 473 580 67 484 43 412 604 335 650 192,407 168 472, 723 74 51, 167, 169, 308 Sedgwick v. Stanton Page 35 Seitzinger v. Weaver 541 , 613, 727 Selby V. Chute 171 Servante v. James 606 Severn v. Clerk 488 Seymour v. Delanoey 612 Shackleford v. Handley 622 Shanklin v. Cooper 661 Shannon v. Marselis 68C , 681, 700 Shapland ii. Smith 562, 563 Share v. Anderson 715, 737 Sharp V. Adcock 564 V. Carter 34 V. Conkling 606 Shaw V. Arden 637 V. Galbraith 438 , 445, 447 V. Hurd 369 V. White 328 V. Wilkius 319 Shearer v. Ranger 113, 124 Shelby v. Marshall 687 Slielton n. Codman 349 V. Pease 125 , 290, 647 Shepherd v. Temple 637 Sherry v. Frecking 35 Sherwood v. Barlow 412 V. Vandenburgh 463, 464 V. Waller 35 Shifflett V. Orange Humane Soci- ety 674 Shirley v. Fellows 311 Shirtz V. Shirtz 328 Short V. Kalloway 99 Shoutz V. Brown 539, 566, 572, 613 Shreck v. Pierce 561, 562 Siboni v. Kirkman 600 Siddell V. Sims 674 Silk V. Prime 691 Simers v. Saltus 265 Simms v. Marryatt 51 Simpson v. Hawkins 684, 685, 695, 699 V. Lord Howden 583 Singleton v. Allen 220 Sisk V. Woodruff 236 Sisson V. Seabury 397 Skinner v. Hilbys 182 V. Starner 132, 445 Skip V. Hook 199 Slack V. Thompson 558 Slater v. Rawson 23, 25, 247, 389, Sloper V. Fish 390 562, 563 INDEX TO CASES CITED. XXXIX Small V. Attwood 618, 619, 624, 627 V. Proctor 463 Smith V. Ackerman 135, 660 V. Babcock 622 V. Baker 422, 44 2 V. Cannell 124, 459 V. Compton 99, 227, 238, 239, 517, 548 V. Evans 524 V. Howell 99, 154 V. Low 403 V. Mercer 614 V. Mitchell 621 V. Pendleton 407 V. Richards 622, 624 V. Shepard 2t4 V. Sillyraan 724, 732, 736 V. Simonds 336 V. Strong 23, 63, 65, 69, 70 V. Sweringer 471 and Wife v. Addleman 328 Snow V. Chapman 624 Snyder u. Lane 128,129,138 Solomon v. Turner 650 Somerville v. Hamilton 74, 237 Somes V. Skinner' 89, 412, 413, 425, 446 Soper V. Stevens 614 Soprani v. Skuno 41 Sorsbie v. Park 604, 605 Souders i>. Vansickel 267 Souter K. Drake 562 South V. Hoy 342, 600 Spackman v. Trimbell 591 Sparrow u. Kingman 410,412,464 Spear u. Allison 166, 715, 740 Spencer v. Durant 604 V. Howe 127 u. Marriot 172 Sprague u. Baker 244, 249, 270, 282, 283, 290, 345 Spring V. Chase 71, 95 V. Tongue 113 Spruill V. Leary 391, 400, 401 Squire v. Harder 463 Staats V. Ten Eyck 58, 60, 62, 93, 101 Stack V. McLagan 673 Stafford v. Van Rensselaer 362 Staines v. Morris 566 Stanard v. Eldridge 135, 136, 138 Stanley v. Hayes 1 74 V. Jones 34, 36 Stannard u. Eldridge 110 Stannard v. Forbes 499 V. UUithorne 549 Stapylton v. Scott 563, 564 Starke v. Hill 671 State V. Gaillard 704 V. HoUoway 626 Steele v. Adams 67 V. Mitchell 557 Stehley v. Irvin 721 Steigleman v. Jeffries 638 Steiner v. Baughman 247, 422, 442, 525, 531 Steinhauer u. Witman 707, 709, 710, 711, 712, 713, 714, 722, 723 Stephen v. Bagwell 33 Stephens v. Cooper 698 Sterling v. Peet 63, 247, 315, 324 Stevens v. Jack 237 Stevenson o. Lambard 355 Stevenson's Heirs v. McReary 466 Stewart v. Drake 101, 135, 138, 145, 243, 319 V. Eden 3 1 1 V. Noble 321 V. West 181, 201, 217, 222, 226, 381, 602, 603 Stillman v. Ashdown 588 Stimpson v. Thomaston 4 63 Stinchfield v. Little 572 Stinson v. Sumner 77, 345 St. John V. Palmer 253, 256 Stockton V. Cook 691 Stoddart w. Smith 717 Stoever v. Whitman 35 Stokes V. Jones 421 Stone V. Buckner 684 V. Fowle 674 V. Hooker 247, 248 V. Patterson 265 u. Peake 6 74 Story V. Richardson 606 Stout V. Jackson 214, 319, 329 Stow V. Stevens 560 Stowell V. Bennett 344 Strawbridge u. Cartledge 66 Streaper i'. Fisher 335 Street i>. Blay 637, 643 Streeter v. Henley 660 Strode's Heirs v. Cox's Heirs 321 Stroheeker v. Housel 472, 736 Strong V. Peters 623 V. Strong 380 Stroughill V. Buck 466 xl INDEX TO CASES CITED. Page Stuart V. Kissam 592 Stubbs V. King 651 V. Page 63 Style V. Hearing 476 Summerville v. Jackson 784 Sumner v. Barnard 438, 460 1/. Wentworth 580 V. Wmiams93,101,315,316, 363, 477, 503, 504, 566, 567, 571, 580 Sumter v. Welch 220 Surget t>. Arighi 166,168 Sutton V. Sutton 614, 621 Suydam v. Jones 69, 129, 130, 354, 359, 370, 377 Swafford v. Whipple 57, 63, 68, 321 Swan V. Drury 560, 561 V. Searles 484 V. Stranshan 600 Swasey w. Brooks 176 Sweet y. Brown 629 Swenk v. Stout 226, 234 Swett V. Patrick 100, 101, 315, 606 Swift V. Hawkins 651 Synames v. Smith 196 T. Tabb V. Binford 214 Taft V. Stephens 410 Taggert v. Stansbery 570 Talbot V. Bedford's Heirs 219 Tallmadge v. Wallis 642, 647, 652, 656, 663 Tallman v. Green 156, 626 Taltarum's case 6 Tanner y. Livingston 90 Tapley v. Lebeaum 63 V. Lebeaum's Exrs. 65 Tapscott V. Williams 606, 609 Tarpley v. Poage's Admrs. 648 Tarwater u. Davis 561 Taunton Bank u. Richardson 311 Taylor v. Ashton 621 V. Brodrick 328 o. Debar 189, 190, 192, 442 V. Fleet 623 V. Fulmore 704 V. Gilman 129, 584 V. Horde 7, 15, 16, 45, 47, 256 V. Needham 404 V. Owen 335 Temple v. Partridge 402, 457 Templer v. McLaohlan Terret v. Taylor Thacher i'. Dinsmore Tharin v. Fickling Thayer v. Clemence V. Wendell V. White Thomas v. MeCann V. Perry V. Powell Thompson v. Christian - Guthrie Page 637 412 571 560 342, 346 672 561 622 24, 35, 48 614 671 59 V. Mansfield 643 V. Morrow 327, 328, 329 V. Sanders 364, 359 V. Shattuck 354, 369 Thorndike v. Norris 412 Thornton v. Court 361, 366, 377, 3 78, • 379, 686 V. Wynn 637, 638, 649 Threlkeld v. Fi"tzhugh 319, 329 Throughton v. Throughton 612 Thursby v. Plank 601 Tibbets v. Ayer • 658, 673 Tillotson V. Boyd 349 V. Grapes 6 40, 642, 674 K Kennedy 410,412,418 Tindall v. Conover 561 u. Harkinson 623, 629 Tinney v. Ashley 560 Tisdale v. Essex 166 Tod u. Baylor 329 V. Gallagher 730, 738 Todd's Heirs v. Todd's Heirs 395 Tomlinson v. Smith 320 Tone w. Brace 477,478,479,683 Tourville v. Nash 708, 709 Toussaint v. Martinnant 640 Town V. Needham 352, 362 Townsend v. Morris 214, 342, 609, 610 W.Weld 69,130 Trask v. Vinson 673 Traver v. Halstead 560 Tremain v. Lining 558 Trenchard v. Hoskins 469, 519 Trevivan v. Lawrence 403, 404, 408, 413,441 Triplett v. Gill 24, 31, 107 True V. Haley 148 Trull V. Eastman 223, 412, 415, 416, 418, 420 Tryon v. Whitmarsh 622 Tucker v. Clarke 84, 425 INDEX TO CASES CITED. Ali Tucker v. Coeke Tufts 0. Adams 100, 147, 148, 151, Tuite V. Miller 51, 156, Tulk V. Moxhay Turnbull v. Gadsden Turner v. Goodrich V. Harvey Tuscumbia R. R. Co. v Tuthill u. Babcock Twambley v. Henley Twining v. Morrice Twynam v. Pickard Tye V, Gwynne Tyler v. Young U. 524 126, 134, 138, 346, 360, 667 273, 274, 287 155 622 100, 226 623, 626 . Rhodes 696 622 24 612 355, 607 637, 647, 650 674 United States v. Howell 369 United States Bank v. Bank of Georgia 614 University of Vermont v. Joslyn 255 Upton V. Barrett 41 V. Townend 245 Urmston v. Pate 614, 617 Urquhart v. Clark 401, 587 V. Valle V. Clemens Van Brunt v. Schenck Van Buren v. Digges Van Epps v. Harrison Van Eps v. Schenectady Van Hoesen v. Benham Van Home v. Crane V. Fonda Van Lew 17. Parr 619, 685, Van Nostrand v. Wright Van Rensellaer v. Kearney V. Stafford Van Riper v. Williams Van Slyck ,-. Kimball Van Waggoner v. McEwen Vanada v. Hopkins Vance v. House 685, Vancourt v. Moore Vancouver v. Bliss Vanderkarr v. Vanderkarr Vane v. Lord Barnard 110, d* 41, 701, 411,420 256 639, G49 624 569 368 355 421 702 52 132,455 362 680 110 680 557, 570 691, 692 359, 392 563 219, 242, 289 134, 612, 725 A^'anmetre v. Griffith Vardeman v. Lawson Varick v. Edwards Venable v. Beauchamp Vernam v. Smith 263, Vernon v. Smith Vibbard v. Johnson Vick V. Percy 684, Vigers V. Pike Vrooman v. Phelps Vyvyan v. Arthur w. Page 283, 284 561, 665 409 284 479, 482 300 647 691, 694 612, 629 689 300, 477 Wace V. Bickerton 89 Waddilove v. Barnett 265 Wade V. Halligan 483 V. Lindsay 41 u. Linsley 412 V. Mervin 66 Wadleigh v. Gaines 580 V. Glines 434, 580 Wailes v. Cooper 666, 684, 686, 694 Wait V. Maxwell 21, 54, 182 Wakeman v. Duchess of Rutland 567, 568, 614 Walden v. Bodley 268 Waldo V. Hall 478 V. Long 101 138 145 233 Waldron v. McCartv 242, 256, 258, 270, 271, 272, 273, 275, 281 290 389 Walker v. Gilbert 684 V. Hatton 99 V. Moore 59 V. Physick 477 V. Schuyler 329 Wallace v. Talbot 91 318 Walton V. Bonham 672 692 V. Waterhouse 264 Ward V. Bartholomew 570 V. Grayson 685 V. Trathen 612 Ware v. Weathrall 318 Wark V. Willard 412 927 Warn i'. Bickford 187 198 Warner v. Daniels 622 Warwick v. Nairn 637 Washburn v. Picot 650 Waterhouse v. Stansfield 43 Waters v. Mattingley 622 V. Dean of Norwich 41, 213 Watkins v. Holman 268, 592, 594 xlii INDEX TO CASES CITED. Watkins v. Hopkins 674 V. Owens 157 Watson V. Blaine 66 V. Parker 588 Watts t'. Waddle 561 V. Wellnian 133 Waugh V. Land 567 Way V. Arnold 35 432 Weale v. Lower 403 441 Webb V. Alexander 236, 242, 257 V. Eussel 47 7 V. Steele 380 Webber w. Webber 381,592,602 Weeks v. Burton 621 Weems v. McGaughan 545 Weiser v. Weiser 472, 473 Welch V. Mandeville 376, 380 Weld V. Adams 265 Wellesley v. Wellesley 440 Wellman v. Hickson 35 Wells V. Austin 403 u. Fydell 600 Wentworth v. Cocke 600 V. Goodwin 643, 659 West y. Blake way 369 V. Spaulding 175 V. Stewart 53, 295 Westbrook v. McMillan 702, 705 Whallon v. Kauffman 495, 524 Wheat V. Dotson 638, 661 Wheatley y. Lane 609 Wheeler v. Hatch 20, 22, 24, 45 ij. Sohier 354, 357, 359 V. Wheeler 376 Wheelock v. Henshaw 420 V. Thayer 294, 342 Whisler ii. Hicks 135, 660, 660 Whitbeck y. Cook 51, 116, 119, 121, 580 White V. Damon 564 V. Erskine 224, 382 V. Foljambe 566 V. Lowry 721 V. Patten 427, 430, 431, 432 V. Sanborn 576 V. Whitney 147, 273, 316, 352, 355, 357, 360, 362 ■u. Williams 228 Whitehead c. Carr 555 Whitehill v. Gotwalt 475, 489, 624, 541 Whiting y. Dewey 94,531,572 V. Nissly 63 Whitmore v. Casey 233 Whitney v. Allaire 629 Whitney v. Dinsmore 273, 346 u. 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 Lancaster 713 Wiggins V. McGimpsey 674 Wight V. Shaw 420 Wightman v. Reynolds 455 Wilde V. Gibson 619, 629, 631 Wildridge v. McKane 601 Wiley V. Fitzpatrick 695, 699 Wilford V. Rose 54 Wilkins v. Fry 666 V. Hogue 684 Willard v. Twitchell 25, 29 Williams v. Beeman 93, 320 t,-. Burrell 384,477,485, 493, 600, 601 V. Claiborne 408 V. Hathaway 480 V. Hogan 38, 41, 609 V. Mans 43 y. Matthew 311 V. Presbyterian Society 407 V. Thurlow 412 V. Weatherbee 219, 226, 236, 312, 342 V. Wetherbee 275, 354, 359 Williamson v. Codrington 158, 160, 218 V. Eaney 614 Willis V. Aston 569 Wills V. Cowper 43 Wilson V. Baptist Society 639 V. Cochran S19, 573 V. Forbes 24, 45, 49, 63, 65, 74, 342 V. Jordan 668 V. Knubley 590, 597, 598 V. McElwee 226, 233, 249, 279 V. Shelton 66 V. Short 34 Willson V Willson 63, 108, 134, 136, 138, 140, 144, 148, 319, 323 AVilt V. Franklin 66 Winnc v. Reynolds 560 Winston v. Gwathmys 622 Winterbottom v. Ingham 268 Withers v. Atkinson 718, 730 V. Baird 555, 718 INDEX TO CASES CITED. xlii in Pa^e Withers v. Bircham 606 V. Green 638, 649 V. Morrell 683 Witherspoon i-. Anderson's Exrs. 318 Withy V. Mumford Witty V. Hightower 353,359, 388 219, 248, 255, 275, 311, 685 731, 733, 734 66 35 556 174 683, 685, 693 Wolbert V. Lucas Wolfe V. Hauver Wood V. McGuire Woodfold V. Blount Woodhouse v. Jenkins Woodruff w. Bunce V. Greenwood 170 Woods V. North 48, 426, 648, 681, 685 Woodward v. Allen 247, 285 Woodworth v. Janes 39 Woollam (!. Hearne 129, 131 Worley v. Frampton 566 Worthington v. Warring-ton 59 Worthy v. Johnson 566, 572 Wotton u. Cooke 196 V. Hele 166, 167, 169, 182, 579, 580 692 437 35 Wray v. Furness Wright V. Henon V. Meek Page Wright V. Shaw 484 V. Wrieht Wyche v. Macklin 422, 440 ,442 651 Wyman v. Ballard 134, 138, 345, 376 V. Brigden 138, 145, 150, 667 V. Harman's Devisees 420, 529 Wyse V. Snow 601 Yancey v. HoUaday 754 V. Lewis 166, 682 Yelton V. Hawkins 68, 235 Yelverton v. Yelverton 440 Young V. Adams 614 V. Bumpass 626 V. Burnham 627 V. Covell 621 V. Hargrave's Admr. 476 V. Harris's Adtnr. 619 I'. Hopkins 626 V. Matthew 321 V. McClung 685 u. Raincock 17, 48, 120, 336, 465, 509, 609 COYENANTS FOU TITLE. CHAPTER I. THE ANCIENT WARRANTY, AND THE INTRODUCTION OF COVENANTS FOR TITLE. The introduction and use of " covenants for title " in place of the common-law warranty was one of the earlier of what may be termed innovations upon that system which has had such able and devoted admirers. The change was so necessary and the alteration so little startling, that it excited none of those anxious misgivings which have since accompanied less material changes, and Sir Orlando Bridg- man, to whom has been ascribed the bringing of these cov- enants into general practice, seems to have had his profes- sional eminence, as a common-law Judge, undisturbed by any imputation of an undue desire to reform. Yet, with their introduction, one of the most abstruse and subtle sub- jects in the system of law was withdrawn from the attention of the practitioner. And if in England, the more pliable forms of covenant were found better suited to carry into effect the intentions of the parties, in their accommodation to the various circumstances connected with title, than the complex and sometimes dangerous system of warranty, such must have been peculiarly the case on this side of the At- 2 THE ANCIENT WARRANTY, AND THE lantic, where the absence of the law of primogeniture would, of itself, have prevented the application of the doctrine, with all its common-law incidents. A sketch, however, of the law as it formerly existed in this respect, may not be unnecessary to an adequate coni- prehension of the system which has superseded it. By the feudal constitution, if the vassal's title to the fee which he had received at the hands of his lord, were disputed, he might call upon the lord or donor to warrant or insure his gift, which, if he failed to do, and the vassal were evicted, the lord was bound to give him another feud of equal value in recompense ; in other words, as the feudal system im- posed upon the grantee the duties of tenure, it also bound the lord, by a reciprocal obligation, either to protect the tenant in his fief or to give him another, — a liability which descended to the heir of the grantor as long as he had any lands to answer it.^ This warranty was originally created without any covenant to that effect ; — it was a natural incident of tenure. When, subsequently, it became usual to authenticate the transfer of lands by a charter, or deed, the word of feoff- ment, " dedi," implied a warranty. As early as the year 12J2, the statute de bigamis^ was declaratory of the effect attached by the common law to the use of this word. " In deeds where is contained dedi et concessi without homage, or without a clause that containeth warranty, and to be holden of the givers and their heirs by a certain service, it is agreed that the givers and their heirs shall be bound to 1 Sir Martin Wright, in his intro- to make good its loss ; the question duction to the laws of tenures, pp. has been much discussed by the 27-32, &c., seems to think this could civilians, but the weight of author- only have been so, in the case of ity seems to be as I have stated it improper feuds, and that it was un- above. See Mr. Butler's note to Co. likely that where a feud was gener- Litt. 365. ously given, the lord should be held 2 4 Ed. I. c. 6. INTRODtfCTION OF COVENANTS FOR TITLE. 3 warranty ; " — " and even if there be," says Coke in his remarks on this statute,^ " an express warranty in the deed, yet that taketh not away the warranty that is wrought by force of the word dedi, but the feoffee may take advantage either of the one or the other at his pleasure." ^ Hence it would seem that those warranties which naturally flowed as part of the reciprocal consequences of feudal tenure, could not be modified by express warranties. The second clause of the statute, however, modified the common law, by declaring that " where is contained dedi et concessi, to be holden of the chief lords of the fee or of others, and not of feoffors or of their heirs, reserving no service, without homage or without the foresaid clause, their heirs shall not be bounden to warranty, notwithstand- ing the feoffor during his own life by force of his own gift, shall be bound to warrant " — in other words, where no tenure between the grantor and grantee was created by the gift, the word dedi implied a warranty merely by the donor during his life, and not one which would impose an obliga- tion on his heirs. A few years after, the statute of quia emptor es ^ prohib- ited subinfeudation by declaring that it should be lawful for every freeman to sell his lands at his own pleasure, and that the feoffee should hold the lands of the chief lord of the fee, by such service and customs as his feoffor was bound to before. This put an end to homage as an incident of ten- ure, which was the consideration of implied warranty, and hence it resulted that, from this time, the word dedi, in a \ 2 Institutes, 275. Anne, c. 35, giving a certain effect 2 This is the earliest Instance of to the words "grant, bargain, and statutory enactment bestowing a cer- sell," an act which has been adopted, tain signification to the words of in substance, in many of our States. conveyance, and may not unreason- See Chapter X. ably be presumed to have afforded ^ 18 Ed. I. c. 1. the precedent for the statute of 6 4 THE ANCIENT WARRANTY, AND THE conveyance in fee, merely implied a warranty during the life of the donor. If, however, the conveyance left any reversion in the donor, the implied warranty still subsisted, since the donee still held of the donor as before the stat- ute, and consequently the warranty bound not only the donor but also his heirs.^ As warranty by implication thus became in many in- stances a mere personal contract, instead of a real security annexed to the estate granted, the practice of introducing express warranties (which though sometimes employed be- fore that time, were by no means general,) became almost universal. Their effect was twofold. First, the grantee • could call upon his donor to defend his title to the land, and could recover an estate of equal value in case of eviction. And secondly, the warranty operated as a rebutter, by bar- ring 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 opera- tive 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 son were coeval. Still, there might be cases in which this estoppel of the heir's claim would work a hardship to him. A man might be tenant by the curtesy and alien the lands thus held with warranty, which warranty descending upon the son would estop him from claiming the inheritance which he would otherwise have derived from his mother. The statute of Gloucester,^ therefore, in this case restrained the effect which a warranty would otherwise have, by giving 1 The word " give " is seldom or which the statute of quia emptores never used in modern conveyancing, is not in force, (as in Pennsylvania,) but in the event of its introduction these remarks might become of prac- into a conveyance passing an estate tical importance, in those parts of this couotry in 25 e,j_ j_ q 3 INTRODUCTION OF COVENANTS FOR TITLE. 5 to the heir the right to claim the estate notwithstanding such warranty. Into the difficult and unsatisfactory learning connected with what have been termed lineal and collateral warranty, it is not necessary now to enter. They were terms un- known in the earlier days of the common law. There was no difference between them. No statute recognized the dis- tinction until more than four centuries after they were first 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 greater lords beyond the penalties of forfeiture, swelled them to a height which was as unpalatable to the crown, as it was galling to the trading and industrious classes. Nor was it less distasteful to the younger sons, who, in consequence of the unalienable nature of the estates in tail which the statute created, were without provision from their fathers, the ten- ants in tail. All of these saw the mischief when it was too late. In every successive Parliament, from Edward the First to Edward the Fourth, bills were introduced to repeal the statute de donis, but the power of the great lords re- sisted these attempts with success. There was then nothing left but to elude the statute by every ingenuity which law yers and judges could devise. The first means was by col- lateral warranty. If lands were entailed upon a father and his heirs male, and the father aliened with warranty, this warranty, though it would descend upon the son, still would not debar him from claiming the land of his father's alienee, for the statute de donis expressly declared, that the tenants in tail should " have no power to alien the land so given, but that it should remain unto the issue of those to whom it was 1 13 Ed. I. c. 1. 6 THE ANCIENT WARRANTY, AND THE given after their death." But if the brother of this tenant in tail, who had nothing to say to it, and who was collateral in respect of it, joined in this alienation with warranty, or released to the alienee with warranty, and died without issue, so that the son of the tenant in tail became his heir, this warranty, called collateral to the entail, bound, as at common law, the son of the tenant in tail ; therefore, by getting a collateral relation, whose heir the issue in tail was to be, to concur in the alienation, and bind himself and his heirs to warranty, in particular cases relief was obtained from the statute de donis. All efforts to counteract this ingenuity failed.^ Nearly two centuries elapsed before col- lateral waranties, as a means of evading this statute, were succeeded by fines and recoveries, which, invented at first to evade the statutes of mortmain, were fitly turned, after their office in that respect had been suddenly checked, to elude the statute de donis? 1 Littleton, § 720, speaks of one Jude Richel, a Judge of the Common Pleas in the time of Richard II., who created a tenancy in tail with re- mainder, to his second and other sons successively in tail, and provid- ed that in ease of alienation by any tenant in tail the estate should im- mediately vest in the next tenant in remainder. This, he thought, would efieotually preserve the entail in its purity, for the first estate would, upon ahenation. Immediately determine, and the second commence before any collateral warranty could descend upon it. But if these conditions had been held effectual, it was easy to perceive that henceforth all tenancies in tail would be accompanied by similar restrictions. Consequently, all these remainders were held to be void upon grounds of technicality rather than reason ; and the satisfac- tion of Littleton at this triumph is echoed by Coke, who holds up " such novelties " as examples, to show that " new inventions in the assurances ■ of the law are dangerous." Such a contest also took place after the stat- ute of Hen. VIL declared that fines levied with proclamation should be conclusive to bar estates tall. Simi- lar conditions were imposed in the creation of the entail, and were sim- ilarly disposed of 1 This arose from Taltarum's case, 12 Ed. IV. case 25, and it is a re- markable instance of how the origi- nal meaning of a statute can be overlaid with interpretations affixed to it, that the power to suffer a com- mon recovery has been repeatedly held to be "a privilege inseparably incident to an estate tall," and one INTRODUCTION OF COVENANTS FOR TITLE. 7 It is not difficult to imagine that the doctrine of collateral warranty, sprung from such an origin, and used for such purposes, should in the course of centuries be involved in subtlety, and, says Chief Justice Vaughan, " If Littleton had taken the plain way of resolving his many excellent cases in his chapter of warranty, by saying, the warranty of the ancestor does not bind in this case, because it is re- strained by the statute of Gloucester or the statute de donis, and it doth bind in this case as at the common law, because not restrained by either statute (for when he wrote, there were no other statutes restraining warranties, there is now a third — 11 Hen. VII.), his doctrine of warranties had been more clear and satisfactory than it now is, being intri- cated under the terms of lineal and collateral, for that in truth is the genuine resolution of most if not all his cases." ^ The statute of Henry the Seventh,^ to which Lord Vaughan here refers, is similar in its protecting influence to the stat- ute of Gloucester, and declares in substance, that a war- ranty by a tenant in dower, a tenant for life, a tenant in tail jointly with her husband of lands derived from his ancestor, shall be void against the heirs next inheritable, unless done with their consent. To these restricting statutes was added that of 4 & .^ Anne, c. 16, by which all warranties by any tenant for life are made void against those in remainder and reversion, and all collateral warranties by an ancestor who has no estate in possession, made void against his heir. This statute has been re-enacted in several of the United States. It is the first in which the words " collateral war- ranty" are found, and has been generally considered as consigning most of the intricacies which attended it, to the which cannot be restrained by con- argument of Mr. Knowler in Taylor dition, limitation, custom, recogni- v. Horde, 1 Burrow, 84. zance, statute, or covenant. Seethe l Vaughan's Rep. 375. 2 11 Hen. VH. c. 20. 8 THE ANCIENT WARRANTY, AND THE research of the curious. Finally, upon the report of the Real Property Commissioners, warranties, with all real actions, have been entirely swept away.'' The remedy on a warranty was by writ of warrantia cliartce, or by voucher to warranty. As a form of action merely, that of warrantia chartce appears to have been as simple as the action of covenant, and the difficulties con- nected with it arise rather from the abstruse doctrines of warranty than from the organic principles of the action — difficulties which would occur in any other form of proceed- ing- which would seek to enforce the rights acquired by warranties. A warrantee might implead his warrantor either before or after eviction. The action was frequently brought as a mere precautionary measure, as soon as there was reason to fear the loss of the land through a defect of title ; and the judgment then obtained in the ivarrantia chartce, which was called a judgment pro loco et tempore, bound all the lands of the warrantor from the day on which the writ issued, so that if the lands warranted were after- wards recovered from the warrantee, he in turn recovered the same value of land fromi the warrantor or his heirs. The efiect of the judgment in this action is a cogent reason against the use of warranty in modern practice, since it would become necessary on the sale of lands bound by the warrantia chartcB, to investigate also the title of those which had been conveyed with warranty.^ The practice of voucher, on the other hand, tended to complication and delay. The warrantee called upon the 1 3 &4 Will. IV. 0. 27, § 39; id. conveyancera called a "double ti- c. 74, § 14. tie," whicli was very onerous. But 2 So, by the common law, upon by a recent English statute (8 & 9 every exchange a warranty was im- Vict. 106) deeds of exchange have plied, giving to the evicted party a no longer the effect of creating any right of re-entry upon the land he warranty or right of re-entry, or cov- had parted with, producing what enant by implication. INTRODUCTION OF COVENANTS FOR TITLE. 9 warrantor or his heirs to come into court and defend the land, or yield him other lands of equal value. This requi- sition was termed a voucher to warranty. If the vouchee appeared, he was made defendant instead of him who had thus called upon him. If he failed to appear, or made de- fault in any way after appearance, judgment was given against the warrantor, and at the same time judgment that the warrantee recover lands of equal value against him. But there were many writs and returns, false vouchers and continuances — voucher was only admissible in real actions, and not in all of those. From analogy to its practice have sprung many doctrines and obligations still subsisting, both in England and here, which, so far as they may relate to the subject-matter under inquiry, will be particularly noticed hereafter.^ The judgment both in a warrantia chartce and in a voucher to warranty, seems to have been limited in its effect to the lands of equal value, which might still belong to the warrantor, or in case of his death have descended to his heirs. But in respect to estates less than freehold, the warranty might be used as a personal covenant, upon which damages were recovered,^ so that a warranty was a cove- nant real when the freehold was brought in question, and 1 See infra, Chapter VII. demurrer to this plea, the question 2 As is shown by the case of Pin- arose .whether upon the clause of combe v. Rudge, Hobart's Rep. 3, warranty annexed to a freehold, an ■where the defendant had granted a action of covenant would lie, which freehold with warranty, having pre- was decided afBrmatively, because al- viously demised the premises for a though the warranty was annexed to term of years. The lessee entered the freehold, yet the breach was not upon the grantees, who brought an of a freehold, but of a chattel (viz : action of covenant on the warranty, the lease for years, which had been and demanded damages from the the first estate created), for which warrantor, who pleaded a warrantia there could be neither a voucher, re- charfse brought against him by them, butter, nor warrantia chartse. which was still undetermined. On 10 THE ANCIENT WARRANTY, AND THE operated as a personal covenant, where the loss sustained did not draw away the freehold.^ Of the effects of these real actions since the introduction of more modern forms, we may judge from the report in 1832, of the Parliamentary Commission, and the interest- ing evidence of the eminent practitioners which accompanies it. It is there said, "Before we ventured to recommend so important a measure as the entire abolition of real actions, we made diligent inquiries into the practical operation of this system of law, and from the result, we have every reason to think that it would have been beneficial to the community, if real actions had been abolished from the time when the modern action of ejectment was devised. They have generally originated in schemes of unprincipled prac- titioners of the law to defraud persons in a low condition of life of their substance, under pretence of recovering for them large estates, to which they had no color of title. In many instances ruin has been the consequence to the de- mandants ; and in all, much vexation and expense have been occasioned to the tenants, who, however groundless the claim may be, by a strange caprice of the law are not allowed any portion of the costs which they have incurred in defeat- ing it, when brought forward in this peculiarly harassing form." The partial relief to the student from the mastery of so much learning, which, however technical, was yet in- dispensable to the comprehension of laws based upon it, seems to have confirmed this opinion, and the recommenda- tion of the Commissioners met the sanction of Parliament. But a vital objection to the application of the doctrines of 1 For the proceedings on a war- Roll v. Osborn, Hobart, 206 ; and for rantia eliartie, reference may be the writs and practice in voucher to had to Viner's Abr. tit. Warrantia warranty, Viner's Abr. tit. Voucher ; Chartaa ; Fitzherbert's Nat. Brev. and the note to 2 Saunders' Rep. 134; Booth on Real Actions, 242; 32. INTRODUCTION OF COVENANTS FOR TITLE. 11 warranty to this country arises from our system of descents. Warranty descended only on the heir at common law — it operated as a rebutter on him alone — it bound him alone to render other lands of equal value. In those parts of England where the peculiar tenures of gavelkind and borough-English prevailed, the inconvenience was extreme. The heir at common law was still vouched to warranty, though the inheritance was, in the one case, divided among his brothers, and in the other, enjoyed exclusively by the youngest of them.' The " covenants for title " were introduced, as a substi- tute for warranty, towards the close of the seventeenth cen- tury,^ being, as is said in the preface to Sir Orlando Bridg- man's Precedents of Conveyances, " advised by him during the time of his practice when the unhappy circumstances in which the. kingdom stood, afforded no other means of safety to persons of his loyalty and constancy, than a strict retire- ment from all public affairs." These covenants were five — first, a covenant that the grantor was seized of the estate which he purported to transfer, called the covenant for seizin ; second, that he had a good and perfect right, so to transfer it; third, that the grantor should quietly possess and enjoy the premises with- out interruption, called the covenant for' quiet enjoyment ; fourth, that such should be thti case, free and clear from all incumbrances, leases, trusts, &c., called the covenant against incumbrances ; and fifth, that such other deeds or instru- ments should be thereafter executed as might be necessary to perfect or confirm the title — this was called the cove- nant for further assurance. There was another covenant, 1 Brooke's Abr. tit. Garranties, in the older books, and be referred pi. 11 ; Assize, pi. 22. Litt. § 735, to hereafter, but it is believed that 736. they were first employed, collectively 2 Many instances of their ocoa- and generally, as a substitute for sional and separate use will be found warranty about this time. 12 THE ANCIENT WARRANTY, AND THE which, though somewhat of a mixed character, and but sel- dom employed before and still more rarely after the intro- duction of those just named, was yet brought to this country by our ancestors, where it has taken deep root, and grown to be the covenant for title more employed and relied upon than any other. This is the covenant of warranty. The advantages which have arisen from the substitution of these covenants in place of warranties, are manifest from their pliant form, their greater certainty, and the efiective nature of the remedy. Yet notwithstanding the improve- ments arising from the change, the excessive length in which these covenants have been, until very lately, expressed in English conveyances has been the subject of great and merited complaint, more than half their tedious length being occupied with the covenants for title, elaborated with every addition which caution or profit to the draftsman could sup- ply or suggest.^ But upon this side of the Atlantic, al- though instances are not wanting of deeds embellished with every refinement of English conveyancing, yet the simplicity 1 " Few conveyancing forms," it is used; our conveyancers find them said, " can exceed them in tlie luxu- suited to but very simple cases ; and riant growth to which their verbiage finding them insufficient in the ma- has attained." Williams on Real jority of cases mostly neglect them Property, 377. They usually occu- altogether. Probably our brethren pied much more than half of an or- in the country towns see more virtue dinary conveyance. The statute 8 in them than we do, and I believe & 9 Vict. c. 119, (see infra, Chapter they sometimes use them." In the X.,) called " An act to facilitate the most recent English treatises, more- conveyance of real property,'' has over, the statute is but casually re- endeavored to mitigate this evil by ferred to. giving to short forms all the effect of The spirit of reform, however, the covenants as usually expressed at which gave birth to it, has produced length. An English conveyancer, to a marked effect upon this part of the whom I could safely refer, as to the practice of English conveyancing ; practical operation of this statute, has as is shown by all the collections in reply written, " So far as my ex- of precedents, &c., which have is- perience goes, the 'pattern' cove- sued from the press within the last nants are not liked, and are but little four or five years. INTRODUCTION OF COVENANTS FOR TITLE. 13 which, characterized the early colonists, added to the fact of their emigration taking place soon after the introduction of these covenants, caused them, in general, to be brief in the extreme. Partly, perhaps, as a consequence of this, it has been said more than once from the bench, that although covenants for title are found, in some shape or form, in al- most 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 sim- ilar branch of learning. Yet, with all this, it will be found that far less practical contradiction exists than would have been supposed. The cases admit of distinct, and, in gen- eral, harmonious classification ; and it is hoped that this attempt at their arrangement will show that although lines of difference will occasionally be found somewhat strongly marked, yet that the law is not less satisfactory in this branch, than in many others of equal importance.^ It is proposed in the following pages to consider the cov- enants for seizin, for right to convey, against incumbrances, for quiet enjoyment, for further assurance, and of warranty, in detail and separately, examining in each its form, defini- tion, scope, and the measure of damages consequent upon its breach. Then will be considered the extent to which covenants for title run with the land, and herein of their re- 1 These remarks are so elemen- the authorities there referred to. tary that authorities have not been Great profit may also be derived produced in support of every part of from the elaborate notes of Mr. Hare, them. Those which have been to Spencer's case and the Duchess chiefly relied on are Co. Litt. 365 to of Kingston's case, in the American 394, and the very satisfactory notes edition of Smith's Leading Cases, of Mr. Charles Butler; Mr. Preston's the Third Report of the Enghsh edition of Sheppard's Touchstone Real Property Commissioners, and (Law Lib. vol. 30 and 31); Viner's the Report of the Pennsylvania Corn- Abridgment, tit. " Voucher," and missioners in 1835. 2 u THE ANCIENT WARRANTY. lease and discharge — their operation by way of estoppel or rebutter — the doctrine of implied covenants, and how far covenants for title, whether expressed or implied, may be limited or qualified — the covenants which a purchaser has a right to expect, and which a vendor is obliged to give — the rights and liabilities of the covenantor and covenantee, the heir, the devisee, the executor or administrator, and the assignee — and lastly, the right of the purchaser at law and in equity to rescind the contract on the ground of fraud, or to detain the purchase-money by reason of an incumbrance or defect of title. THE COVENANT FOR SEIZIN. 15 CHAPTER 11. THE COVENANT FOR SEIZIN. Title, from an early day, was defined to be the just means whereby the owner of land has the possession of his property,^ and in order that it should be legally complete, there was required juris et seisince conjunction This seizin denoted the completion of that investiture by which the ten- ant was admitted into the tenure — without it, no freehold could be constituted or pass.^ The delivery of possession — the "livery of seizin" — was the essential part of a feudal transfer, and the deed which accompanied it, the mere au- thentication of the transaction. In this sense, seizin was synonymous with possession, and was usually called seizin in deed, or actual seizin. But the term sometimes meant more than mere actual possession. There was a virtual or constructive seizin, such as arose through the possession of a tenant for years, which was deemed to be the possession of the owner of the freehold. There was also a seizin in law, as when after a descent, the heir who had the right of possession, though he had not actually entered, was deemed, 1 Co. Litt. 344 b. ; 2 Bl. 195. exception, in the case of a fine, 2 It was also called _;■«« c?u;jZica(um which was a judicial acknowledg- er (/roiV «ZroiV. Co. Litt. 266 a; But- ment, in a feigned action, by the ler's note, 266 b. person in possession, that the right 3 Taylor d. Atkyns v. Horde, 1 was in another. Burrow, 107. To this there was one 16 THE COVENANT FOR SEIZIN. for some purposes at least, seized of the freehold, while the possession was vacant and until it was occupied by another. Warranty, in that day the covenant for title which ac- companied the common-law modes of assurance, was a sin- gular mixture of the covenants which have superseded it. It was intended to assure the title, in its strict definition, that is, the union of the right and the possession. Although the latter might not be actually disturbed, yet he who had re- ceived the warranty coxdd, by means of a tvarrantia chartce quia timet, obtain a present Hen upon the other lands of his warrantor, if the right of the latter were shown to be de- fective. When the possession was disturbed, execution could issue upon this judgment. It was therefore intended to protect both the jus and the seisina. The inconvenience and notoriety attending these common- 1 At this lapse of time, few sub- jects require to be handled with greater delicacy than those of seiz- in and disseizin — the latter, which bears the reputation of being " one of the most obscure and difficult in the law" (1 Cruise on Real Prop- erty, 14), having caused much dif- ference of opinion, as to its essence and operation, between the most dis- tinguished authorities. It is suffi- cient here to notice, that in the well- known case of Taylor d. Atkyns v. Horde, 1 Burrow, 60, the principles of the common law were ably shown by Mr. ]£nowler to be, that a wrong- ful possession by a stranger, and fe- offment by him, passed to the feoffee an actual immediate estate of free- hold with all its rights and incidents, defeasible only by the lawful owner, whose right of entry, however, was taken away by a descent cast on the heir of the feofi'ee. Lord Mansfield, however, held that mere acts of in- trusion or trespass followed by a fe- offment, could not thus turn the law- ful owner into a disseizee, unless he should elect to consider himself dis- seized ; and this doctrine has been since generally adopted in the Eng- lish cases (.lerritt v. Weare, 3 Price, 575 ; Goodright u. Forester, 1 Taunt. 578 ; Doe v. Lynes, 3 Barn. & Cress. 388), notwithstanding the earnest stand made against it by Mr Preston and Mr. Butler ; Preston on Ab- stracts, 279; Butler's note to Co. Litt. 330 b. In America, the cases which are collected in the Digests under the head of " Seizin and Dis- seizin," have reference almost exclu- sively to what constitutes an adverse possession under the limitation acts, as to which, the cases are classified in the late Mr. Wallace's note to the above case of Taylor v. Horde in 2 Smith's Leading; Cases. THE COVENANT FOR SEIZIN. 17 law assurances were, to a great degree, dispensed with in those which succeeded them, and which derived their efficacy by virtue of the statute of uses. During the century and a half which elapsed between this period and that of the Restoration, the whole system of conveyancing was in a state of transition. Among other changes, the reports of Coke, Croke, Hobart and others of that period show us that the warranty was comparatively disused, and in its place inserted personal covenants, inartificially framed, but which formed the skeleton of those which in the latter part of the seventeenth century came into general use. The word " 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 titled in contradistinction to the covenant for quiet enjoyment, which was called a covenant for the possessions^ and such has been the case in England down to the present day.^ The cove- nant is, therefore, in this respect, synonymous with that which usually follows it, viz : that the grantor has good right to convey.* The covenant for seizin, which, when used, has almost 1 Cooke V. Fowns, 1 Keble, 95 ; the instances being numerous, in S. C. 1 Levinz, 46. which one has a good right to con- 2 Gregory v. Mayo, 3 Keble, 745, vey, though not seized of the estate 755. which would pass by the convey- 3 Howell V. Richards, 11 East, ance. In such cases the covenant , 641 ; Young v. Raincock, 7 Com. for seizin is improper, and should Bench, 310. be omitted, and in its place sub- * Browning v. Wright, 2 Bos. & stituted such as the nature of the Pull. 13. They are, however, far case requires; as, in a conveyance from being synonymous covenants in under a power, that the power still all respects ; as although a covenant subsists and has not been exercised for seizin, as expressed above, im- or revoked, etc. 4 Cruise on Real phes a right to convey, (Nervin v. Property, 78 ; 2 Sugden on Vendors, Munns, 3 Levinz, 46,) yet the con- 510; Dart on Vendors, 259. See verse of this will by no means hold, infra, Chapter III. 2* 18 THE COVENANT FOR SEIZIN. invariably the first place in the series of covenants for title, has been, when applied to the conveyance of a fee simple estate in England, generally introduced in the following form : — " And the said (grantor) doth hereby for himself, his heirs, executors, and administrators, covenant, promise, and agree to and with the said (grantee) and his heirs and as- signs, in manner following, that is to say : that he the said (grantor) is now seized-^ to him and his heirs of a good, sure, sole, lawful, absolute and indefeasible estate of inher- itance in fee simple, of and in the said messuage, &c., hereby released,^ or otherwise assured or intended so to be, and every part and parcel of the same, with the appurte- nances, 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 void, abridge, lessen, incumber, or de- termine the same estate or any part or parcel thereof." ^ J In the late case of Hagler v. quire enrolment under the statute of Simpson, Buzby's Law R. (N. Car.) 27 Hen. VIII. c. 16, and is besides 384, the grantor covenanted that better capable of sustaining limita- he was "signed" (in mistake for tionsofuses. The objections against " seized ") of an indefeasible estate, notoriety which there prevail, are in ■which the Court held to be fatal to this country rendered idle by our the grantee's recovery thereon, as it recording acts. had no power in that form of action, 3 This is a form of the covenant to correct the mistake. when used in the conveyance of a Si The words " bargained and sold," fee simple estate. It will of course or more probably "granted and con- be modified according to the estate veyed," would, it is presumed, be intended to be conveyed. The form generally inserted instead of "re- in the text has been taken from leased," in American conveyances, Piatt on Covenants, 306. Other in which this covenant was expressed forms will also be found in the fourth at length. It is familiar, that in volume of Wood's Conveyancing, England a lease and release has been pp. 5, 6,7, etc. This covenant is, the mode of assurance generally however, rarely if ever employed in adopted in modern conveyancing, the most modern English deeds ; that and had an advantage over a bar- for right to convey being substituted gain and sale, in that it did not re- in its place, (see infra, Chapter III. ;) THE COVENANT FOR SEIZIN. 19 As thus expressed, the covenant is what is termed a general, unlimited, or absolute one ; that is, a covenant for the seizin of the grantor, without regard to the prior acts of any persons whomsoever. When, however, as is almost invariably the case in England, the vendor is only willing to covenant against defeasibility of the estate by reason of his own acts, the covenant, which is then termed a special, limited, or qualified one, is thus expressed : " And the said (grantor) doth hereby for himself, his heirs, executors, and administrators, covenant, promise, and agree to and with the said (grantee) and his heirs, and assigns, in manner fol- lowing, that is to say, that notwithstanding any act, deed, matter or thing, by him the said [grantor) done, executed, committed, or knowingly permitted, or suffered to the con- trary, he, the said (grantor) is now seized," &c. This covenant has been defined to be " an assurance to the purchaser that the grantor has the very estate, in quan- tity and quality, which he purports to convey,"^ and owing to the precision of language in which it is expressed in England, no case can there be found in which less than an exact compliance with this definition has been held sufficient to prevent its breach. But as has been before remarked, the form in which the covenants for title are expressed constitutes one of the most marked distinctions between conveyances in this country and in England, and however general, therefore, may be the expression of the covenant for seizin by the preceding form in that country, it is, on this side of the Atlantic, usually couched in the briefest terms ; the words, " that he, the said (grantor) is lawfully seized," or " has a good and, whenever used, it is, I appre- nant are given in the most recent hend, expressed . much more briefly English precedents, than when Mr. Piatt wrote, which l Howell v. Richards, 11 East, was in 1829. No forms of this cove- 641, per Lord EUenborough. 20 THE COVENANT FOR SEIZIN. and sufficient seizin," being not unfrequently the only ones employed.^ At the time when these covenants were originally intro- duced, owing to the sense in which the word seizin was used, as synonymous with title, a covenant expressed in this short form had, in the mother country, the same practical import as the longer form which succeeded it, and a cove- nant that one was seized, or lawfully seized, meant seized of an indefeasible estate.^ But in a few of our States, a different and peculiar construction has been adopted, by de- ciding that a covenant " that the grantor is lawfully seized," or " has a good and sufficient seizin," does not exact an in- defeasible estate, but is answered by the transfer to the pur- chaser of an actual seizin, no matter how tortious, provided it be a seizin under color of title.^ This doctrine seems to have been first announced in the 1 In this country there are many States in which the covenants for title, or some of them, are, by stat- ute, implied from the words of grant of the conveyance, at least so as to assure the estate to the purchaser as far as the acts of the vendor are con- cerned (as to which see Chapter X.) ; and where such is the case, the cov- enant for seizin, being usually one of those thus implied, is often entirely omitted in express words, and the only covenant expressed is that of warranty. Even where no such stat- utory provisions are in force, the .latter is not unfrequently the only covenant which the conveyance con- tains ; but throughout New England, and in several of the other States, the covenant for seizin forms one of •what are termed " the usual cove- nants." 2 Cooke V. Fowns, 1 Levinz, 46 ; S. C. 1 Keble, 95 ; Gray v. Briscoe, Noy, 142. The student will observe that the word " not " in the report of Gray v. Briscoe has been interpo- lated. The report should obviously read, "By the Court, the covenant is broken. And the jury shall give damages,'' &c., instead of, " the cov- enant is not broken." 3 The possession of a mere tres- passer, avowed to be such, will not of course support such a covenant. Thus in Wheeler v. Hatch, 12 Maine, 389, where the grantor was, as to one lot, in actual possession, though without claiming title, it was held by the Supreme Court of Maine (who have adopted the doctrine referred to in the text) that the covenant was broken. THE COVENANT FOR SEIZIN. 21 case of Marston v. Hobbs, decided in Massachusetts in 18 17, where it was said "The defendant, to maintain the issues on his part, was obliged to prove his seizin when the deed was executed. But it was not necessary to show a seizin under an indefeasible title. A seizin in fact was sufficient, whether he gained it by his own disseizin, or whether he was in under a disseizor. If at the time he executed the deed he had the exclusive possession of the premises, claiming the same in fee simple by a title ad- verse to the owner, he was seized in fee and had a right to convey. If the defendant's grantor had no authority to convey the premises to the defendant, yet if, in fact, he entered under color, though not by virtue of that deed, and -acquired a seizin by disseizin, by ousting the former owner, he has not broken these covenants."^ In the ensuing year the same Court applied this doctrine under a covenant apparently similarly worded,^ by decid- ing that a covenant for seizin was not broken where the grantor had, some years before the execution of the deed, entered upon the lands, claiming to hold them by a grant from the Commonwealth, which possession he had trans- mitted to the plain tiflf his grantee,^ and the construction thus given has been recognized and adopted not only in Massa- chusetts, but in Maine, and in a qualified sense in Ohio.* 1 2 Mass. 439. Parsons, Ch. J. * Chapel v. Bull, 17 Mass. 219; There appears to have been no ar- Wait u. Maxwell, 5 Pick. (Mass.) gnment on this point, which was de- 320 ; Cornell v. Jaclcson, 3 Cushing, cided almost incidentally. (Mass.) 509; Breck v. Young, 11 8 Bearce v. Jackson, 4 Mass. 408. New Hamp. 491, (but see the later 3 " As to the other exception,'' case of Parker v. Brown, 15 New said Parsons, Ch. J., "it is very clear Hamp. 186, supra); Kirkendall v. that the defendant's intestate being Mitchell, 3 McLean, 145 (dictum by in possession, claiming a fee simple in McLean, J.) ; Cushman v. Blanch- the land, was able to convey. So the ard, 2 Greenleaf, (Me.) 268, 269 ; covenant of seizin was not broken." Griffin v. Fairbrother, 1 Fairf. 95 : 22 THE COVENANT FOR SEIZIN. Where, however, the covenant is expressed by the words, AVheeler v. Hatch, 3 Id. 388 ; Booth- by V. Hathaway, 20 Maine, 255 ; Baxter v. Bradbury, Id. 260 ; Back- us' Administrators v. McCoy, 3 Ohio, 211. "The covenants so usual in our deeds," said the Court in Ray- mond V. Raymond, 10 Cushing, (Mass.) 134, "that the grantor is ' seized of the premises and that he has good right to. sell and convey the same,' have long since had a judicial construction in this Commonwealth. These covenants do not e.\press or imply a warranty of any absolute title ; they relate to the actual seizin of the grantor and that he has such possession of the premises." The case in Ohio, of Backus' Ad- ministrators V. McCoy, though differ- ing in some respects from these cases, yet states with clearness the doctrines on which they proceed. After re- ferring to the decision in Marston v. iHobbs, Mr. Justice Sherman, in de- livering the opinion of the Court, 'held the following language : " This ■decision appears to us to be founded on sound and correct principles. If the grantor is in the exclusive pos- session of the land at the time of the conveyance, claiming a fee adverse to the owner, although he was in by his own disseizin, his covenant of seizin is not broken [until the pur- chaser, or those claiming under him, are evicted, by title paramount]. He has a seizin in deed, as contradistin- guished from a seizin in law, suffi- cient to protect him from liability, under his/covenant [as long as those claiming under him may continue so seized]. Actual disseizin, or the act- ual adverse possession of the lands of another, is the commencement of a right, which, by lapse of time, may ripen into a perfect title in the dis- seizor or possessor ; and during the time that the grantee of such dis- seizor remains in the undisturbed possession of the lands, by reason of the conveyance of such disseizor, he cannot maintain an action upon the covenant of seizin. No breach of such covenant will have taken place if the grantor was seized in deed at the time of the Conveyance, how- ever that seizin may have been ac- quired. If the grantor, at the time of executing this conveyance, was in possession of the land, either as dis- seizor, or under color of title, it can- not be said that he was not seized of an estate in the premises." These principles were subsequently affirmed in Foote v. Burnet, 10 Ohio, 327, and Devore v. Sunderland, 17 Id. 60. The parts in this quotation marked within brackets draw a distinction which is not recognized by the cases referred to in the text. Marston v. Hobbs and the cases which follow it decide that if there is an actual seizin the covenant is not broken at all — that there has been and can be no breach, and that the covenant will have been fully answered even though the purchaser should afterwards be evicted. But the case of Backus v. McCoy decides that where there is an actual seizin, the covenant is not broken at that time; it remains un- broken so long as the grantee, or those claiming under him, continue THE COVENANT FOR SEIZIN. 28 "seized of an indefeasible estate," it receives the same construction everywhere.-^ There is one point of view from which the construction thus given to this covenant might readily appear to be cor- rect. Since possession enduring for a sufficient length of time, will, under the limitation acts, ripen into a good title. seized, and the breach is postponed until their seizin be disturbed, either actually or constructively. This course of reasoning is intended to give to the heir, the devisee, or the assignee of the covenantee, a right of action in his own name vphere the actual seizin has been transferred to him — a result to which the cases above cited refuse their concurrence, as they hold that the covenant for seizin is broken, if at all, the instant it is made, becoming thereby a right of action and incapable of transmis- sion by descent or assignment. See Chapter VIII. The class of cases thus referred to must be distinguished from that class to which belong Beddoes' Executors V. Wads worth, 21 Wend. 120 ; Fow- ler V. Poling, 2 Barb. S. C. R. SOO ; Slater v. Kawson, 6 Metcalf, 439, etc. ; which decide that a seizin in fact is a sufficient estate to carry with it to an assignee the covenants for quiet enjoyment and of warranty. See Chapter VIII. It does not nec- essarily follow, however, that such a seizin will support a covenant for seizin. 1 This distinction arising from the form of the covenant has been no- ' ticed in Prescott v. Trueman, 4 Mass. 631 ; Smith v. Strong, 14 Pick. 132; Raymond v. Raymond, 10 Cushing, (Mass.) 134 ; Garfield v. Williams, 2 Vermont, 328; Pierce v. Johnson, 4 Id. 53; Abbott v. Allen, 14 Johns. 252 ; Collier v. Gamble, 10 Missouri, 472. "The doctrine established in some of the neighboring States," said the Court in Pierce v. Johnson, " that the covenant of seizin is sat- isfied by a possession without title, cannot well be reconciled to sound reason, except when applied to the naked covenant of seizin without any words that imply any other right but mere possession." Professor Dane, in his Abridg- ment, draws the distinction some- what further than the authorities siipport. " If," says he, " the grantor covenant he is seized in fee, and the issue be thereon, and he proves seizin in fact even by disseizin, he maintains the issue ; but if he cove- nant he ' is lawfully seized in fee,' and the issue be thereon, it is essen- tial, to maintain the issue, he prove . he was lawfully seized ; and if seized only by disseizin and wrong, the jury cannot, on this issue, find he was lawfully seized." Vol. 4, p. 339. The cases, however, do not draw the distinction between "seized" and " lawfully seized." In most of those cited in the text, the covenant was that the grantor was lawfully seized. The two expressions are treated as synonymous. But the distinction is taken between these expressions, and " indefeasiUy seized." 24f THE COVENANT FOR SEIZIN. there would seem reason for holding that such possession should be regarded as an actual estate from the moment of its commencement, and therefore that the "seizin" which this covenant purports to assure might properly be used in its old signification, and not, as has been more recently the case, as synonymous with title.^ But some of the same cases which decide that a posses- sion under color of title is sufficient to support a covenant for seizin, as expressed above, take no distinction between such a covenant, and one that the grantor has good right to convey. Independently of the statutes of champerty,^ the latter covenant has no connection whatever with the posses- sion — it refers, as its language indicates, merely to the right.® This distinction, however, seems often to have been overlooked. Thus, in an early case in Massachusetts,* it was held that one who, claiming to be seized, had covenant- ed that he had " full power, good right, and lawful author- ity to sell," was a competent witness for his grantee, in an action against him under the paramount title, " as there was no covenant that the grantee should have a good title." So in a subsequent case,^ it was said " the covenant for seizin is not broken, for it was admitted that the grantor was 1 Thus in Wheeler v. Hatch, 3 was held that a covenant that the Tairfield, (Me) 389, Thomas u. Per- grantor had good right to convey ry, Peters' Cir. C. R. 49, and Wil- could not be construed as a covenant son «. Forbes, 2 Devereux,35, it was for seizin, because it was notorious held that the covenant for seizin was at the time of conveyance that there broken by an adverse possession un- was an adverse possession. der color of title. In the first of a The connection of this subject these cases there were two lots, as to with the champerty acts is noticed one of which the grantor was in pos- infra. session, though without claiming title, 3 See infra, Chapter lU. and as to the other, there was an ad- 4 Twambley v. Henley 4 Mass. verse possession under color of title, 441. Parsons, Ch. J. and it was held that the covenant 5 Prescott v. Trueman, 4 Mass. was broken as to both. So in Trip- 631. Parsons, Ch. J. lett V. Gill, 7 J. J. Marshall, 436, it THE COVENANT FOR SEIZIN. 25 seized ; neither is the covenant of a right to convey broken, for a naan seized has a right to convey."^ So in a more recent case,^ where the covenants were those of good right to convey and of warranty, it was said by the Court that " the covenants of seizin and of right to convey, are, to all practi- cal purposes, synonymous covenants ; the same fact, viz : the seizin in fact of the grantor claiming the right to the prem- ises will authorize both covenants, and the want of it is a breach of both." And very lately it has been said, " the covenant of a right to convey is synonymous with the cove- nant of seizin. The actual seizin of the grantor will -sup- port both of these covenants, irrespective of his having a good indefeasible title." ^ Again, where in a case in New 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 1 The same expression was used in delivering the opinion of the Court in Fitzhugh v. Croghan, 2 J. J. Marshall, (Ken.) 429, but the word seizin was there used as synonymous with title, in its old sense. " A com- plete legal title," said the Court, " is the Juris et seisince conjunctio, the title and possession united. This is the technical and legal import of the terms ' seized of the legal title.' ' Seizin ' means, ex vi termini, the whole legal title. A covenant of seizin is broken if the covenantor have not the possession, the right of possession, and the right, or legal title. It would, therefore, be diffi- cult to imagine a case in which a party could be seized and yet not have the right to sell and convey the legal title. Seizin is a nomen gene- ralissimum which includes the right to sell; Omne majus continet in se minus." 3 Although it may perhaps be doubt- ed whether the signification thus given to the word seizin is not rather larger than the old law gave to it, (else the words "jus " and " seisina " would not have been dis- tinguished as together making a per- fect title, see p. 15,) yet as applied to the covenant for seizin, the defini- tion is certainly supported by all the authorities except the few cases now under consideration. See infra, p. 26 et seq. 2 Slater v. Rawson, 1 Metcalf, 450, 456. 3 Raymond v. Raymond, 10 Cush- ing, (Mass.) 134. i Willard v. Twitchell, 1 N. Hamp. 1 78, 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 over- rulfed, and the doctrine rejected. See infra, p. 28. 26 THE COVENANT FOR SEIZIN. and lawful authority to grant and convey the same, it was observed, that " each of these amounts only to a stipulation that the grantor has such a seizin that the land will pass by his deed." ^ But the doctrine that the covenant for seizin is not broken if the vendor has an actual seizin at the time of the execution of the deed, is confined to the States already mentioned, and has not passed without contradiction in others. In an early case in Vermont,^ the Court said: " The present covenant declared upon is that the grantors were well seized of the same land in fee simple and had in themselves gbod right to bargain and sell the same in the manner in said deed mentioned. These expressions, and those of similar import, have always been considered in this State, as amounting to a covenant of title. They have been inserted, that they should be so considered. It is argued, however, that this means nothing more than that the grantors were in possession, claiming to hold in fee simple. This alteration might as well be incorporated, by construction, into all the covenants, that decidedly re- late to title, in the whole deed. That they were well seized in fee simple, means, that they were actually in possession, claiming to hold in fee simple. That they had good right to sell and convey, means, that they claim to have such right. That the premises are free from all incumbrances, means, that they claim that they are thus free. This is not the most natural and obvious meaning of the usual expressions in deeds of warranty. They say nothing about claiming. They speak of realities. Fee simple denotes a permanent estate. Well seized in fee simple denotes a seizin of a permanent estate. Such would be the most natural construction, without the aid of concurrent circumstances. But when we recollect that 1 See infra, p. 29 et seq., for an 2 Catlin v. Hurlburt, S Vermont, explanation of these cases. 407, per Hutchinson, Ch. J. THE COVENANT FOR SEIZIN. ^7 this deed was made and executed at a time and place when and where such expressions were universally understood to relate to title, it would do injustice should we give to them a different construction."^ The Massachusetts decisions have been also commented on with severity, and their reason denied in Connecticut ; ^ 1 This decision has not been de- parted from in Vermont ; Richard- son V. Dorr, 5 Vermont, 21 ; Mills v. Catlin, 22 Id. 106. 2 Lockwood V. Sturdevant, 6 Conn. 385. " Although my judgment," said Hosmer, Ch. J., who delivered the opinion of the Court, " might safely be rested on the inapplicability of the decisions cited, (Marston v. Hobbs, &c.,) 1 am constrained to observe, that notwithstanding the veneration I entertain for the highly accomplished jurist who expressed the above opinions, I cannot yield to them my assent. That which shows covenants of seizin a6d of right to convey, to be broken, is their falsity. If the covenants are true, they remain inviolate ; if they are not true, they are broken. On the same principle, if they are en- tirely false, they are wholly violat- ed ; and if partially untrue, they are broken, but in part only. All this is self-evident. Although the cove- nantor should have had the actual possession of the premises, and an ideal or imaginary right, founded on a supposed title that was merely colorable, yet this is not a legal seizin in fee; and nothing short of this will support a covenant that the grantor is seized in fee simple ; because nothing short of this proves the covenant to have been true. This construction necessarily results from the unequivocal words of the covenantor, and the unquestionable object of the covenant. That was security to the purchaser, to the ex- tent of the title purporting to have been conveyed. The determinations on which I am expressing an opin- ion, are opposed to the plain intend- ment of the most unambiguous ex- pressions ; to the object of the par- ties in making the covenants in question ; and to their utility by reducing them to little more than a nugatory agreement. A seizin in fact of an estate in fee simple, if the word seizin intends anything more than possession, is an expression without meaning, where there ij no seizin in law. In the nature of things, there is but one species of seizin in fee, and that necessarily is the possession of an estate con- veyed, with such a legal interest as the fee simple denotes." The cove- nant, however, in this case was for an indefeasible estate, — an expres- sion which admits of but one con- struction. The case, therefore, did not strictly call for the above re- marks, as is indeed stated in the commencement of them. In the very recent case of Comstock v. Comstock, 23 Connect. 349, it was held that the covenant was broken if the covenantor was seized as ten- ant in tail only. 28 THE COVENANT FOR SEIZIN. and in a recent case in New Hampshire,^ the Supreme Court, after an able argument in opposition to the doc- 1 Parker v. Brown, 15 N. Hamp. 186. " We have given the question," said Parker, Ch. J., who delivered the opinion, " all the consideration that the intrinsic importance of the principle, and the inexpediency of holding a different doctrine from that which has been once promulgated, even incidentally, except in a clear case, demands of us. But that con- sideration has satisfied us, that the fair import of the covenant of seizin extends beyond a mere engagement that the party is seized of the land by a seizin which would be good only against another having no pre- tence of title. " After contracting that they are the lawful owners of the premises, the grantors covenant that they are lawfully seized in their own right in fee simple. This engagement is cer- tainly not satisfied in any just sense, by evidence that the grantors are unlawfully seized, without right, in their own wrong, or of no fee sim- ple, except such as is claimed wrong- fully, and in disseizin of the true owner. This may be a good seizin against all but the true owner, but is not a seizin in the parties' own right in fee. The grantee who takes such a covenant for his security has a right to understand, that his grantor transmits to him some seizin, other than one which will make him liable to the rightful action of a third person, the moment he enters under his deed. And we think we are re- quired to give to the terms of the covenant the fair signification to be drawn from the language in which it is expressed. Parties not con- versant with the law ordinarily un- derstand this covenant as an assur- ance of a title, and we are of opinion that they have the right so to under- stand it. A party who has dis- seized another may be treated as seized of the fee, at the election of his disseizee. He cannot be permit- ted to qualify his own wrong; but this is for the sake of the remedy. A party who remains in the adverse peaceable possession of lands for twenty years as owner, may thereby have evidence of a seizin in fee dur- ing that time. But this is for a quiet- ing of possession and barring stale claims. It does not show that before the lapse of the period prescribed he had a lawful seizin in fee ; on the contrary, he was, until the ex- piration of the period, a wrongdoer. " That the deed may transmit a seizin, in virtue of which and a pos- session under it, the grantee may obtain evidence of an indefeasible fee simple, does not show that the terms of the covenant are fulfilled. Nor does the consideration that the seizin transmitted may never be interrupted, suffice to give a con- struction to the covenant, or to show that the grantee ought not to main- tain an action until he is actually dispossessed. The engagement of the grantor upon the covenant is not that he will be answerable if the grantee is ousted. That is the efiect of the covenant of warranty. " No wrong is done by the mainte- nance of the action ; for if the grantee recovers damages from the breach of the covenant of seizin, on the ground that the grantor had no title what- THE COVENANT FOR SEIZIN. 29 trine of actual seizin, repudiated it altogether, overruling the previous decisions in that State,^ which had, almost involuntarily, followed the train of authority in Massachu- setts ; " and these latter decisions," said Chancellor Kent in his Commentaries, " contain, it is apprehended, the true rule of the common law,"^ and are certainly supported by the weight of authority.^ ^ In this apparent conflict of opinion, it is natural to refer to the probable reasons which have led to the adoption of the doctrine thus advocated on the one side and denied on the other. Its origin seems enveloped in some doubt. It has been said * that " the rule seems in some measure to have grown out of the hardship, real or apparent, of permitting a grantee to recover back the consideration- money and interest, while he or his assignee is enjoying a possession that by lapse of time may ripen into a per- fect title." But if the doctrine of actual seizin has had its rise from the reason here suggested, Courts have been forced to go further than such exigencies required. For if the covenant be fully answered by the transfer of an actual, though a ever, the operation of it must be to will furnish as good an estoppel as estop the grantee from setting up that which arises from a disclaimer ; the deed afterwards, as a convey- 4 N. Hamp. 182, Hamilton u. Elliott. ance of the land, against the grantor. The defendants may re-enter if they ' We see not why the grantor may think proper, and will hold under not again enter, if he chooses, as their former possession, against all against the grantee. A recovery in persons who cannot show a better trespass, or trover with satisfaction, right." As to these latter expres- vests the property in the party sions, see infra. against whom the damages 'are as- l Willard v. Twitchell, 1 N. Hamp. sessed. We are not aware of any- 178, supra, p. 25. thing in the nature of the feudal 2 4 Commentaries, 472. investiture, or in the principles ^ See the cases cited infra, p. 48, which regulate the title to land at note 3. the present time, that should require * Mr. Wilcox's note to Foote «. a different rule in relation to real Burnet, 10 Ohio, 327. estate. The record of the recovery 3* so THE COVENANT FOR SEIZIN. tortious seizin, the subsequent disturbance of the purchaser can give him no rights under that covenant, as its purpose was accomphshed by the transfer of the actual seizin, and it seems to be admitted by some of the cases that such must be the necessary consequence.^ But it will be presently seen, when we consider the ques- tion of the measure of damages upon a breach of this cov- enant, that a grantee is not entitled as a matter of course to recover back the consideration-money and still retain the land for which it is thus deemed an equivalent.^ Every endeavor is made while securing to the purchaser the full benefit of his covenant, to protect the vendor from losing both the land and its price, and it is sought, so far as is practicable, to give to the recovery of the consideration- money in an action on the covenant for seizin, the effect of revesting in the covenantor the title, such as it is, which he has conveyed. It is believed, therefore, that a more satisfactory reason exists. It has already been said that the doctrine might well be accounted for on' the ground of seizin being used as 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 connection with the possession, but to be confined exclusive- ly to the right ; the reason is, therefore, inapplicable to the latter covenant. 1 In Cushman v. Blanchard, 2 of Cornell v. Jackson, 3 Gushing, Greenleaf, (Me.) 266, it was said, (Mass.) 509, the Court said, " A par- (Mellen, Ch. J.) " If the grantor was amount title does not affect a cove- seized in fact, though not of an inde- nant for seizin." feasible estate, and the grantee en- 2 Thus if the purchaser has bought ters under his deed, then the cove- in the paramount title, his damages nant of seizin is not broken ; but the are limited to the amount thus paid grantee may be evicted by elder and by him. The cases upon this sub- better title, and then the covenant ject will be found in a subsequent to warrant and defend is broken, and part of this Chapter. no other." So in the recent case 3 See supra, p. 23, 24. THE COVENANT FOR SEIZIN. SI The foundation of the doctrine must therefore be sought from another quarter, and it is believed to have sprung from the doctrine of adverse possession, as connected vt'ith the champerty acts/ A sketch of these enactments may not be here inappro- priate. It is familiar, and has been already stated, that the delivery of possession was the essential part of a feudal transfer. But very soon after the enactment of the statute of uses, it was ingeniously made the medium of the transfer of land without the delivery of possession. With the view to 1 Such was the suggestion of Hutchinson, Ch. J., in the case of Catlin V. Hurlburt, 3 Vermont, 407. " It is probable,'' said he, " the coTe- nant for seizin was anciently intro- duced into deeds, to guard against such an adverse possession as would render the deed void ; as would have been the case at common law, and is now the case by virtue of our stat- ute, if there be an adverse posses- sion." And in Pierce v. Johnson, 4 Vermont, 253, the same learned Judge observed, " The naked cove- nant of seizin was probably intro- duced for the purpose of securing an easy entrance upon the land by the grantee, or to guard against the ef- fect of an adverse possession, which would render the deed void as an instrument of conveyance, and throw the grantee upon his covenants as a remedy." So in Triplett v. Gill, 7 J. J. Marshall, 436, it was said, " Gray- son, without being seized in fact, or in law, may, according to the law in force at the date of the deed, have had lawful right and authority to convey a legal title. The champer- ty act of 1824 did not take effect until July of that year." So again, the champerty acts are most probably referred to by the ex- pression in Phelps v. Sawyer, 1 Aik- ens, (Verm.) 15 7, "Had Sawyer given his deed with a covenant that he was sole owner of the premises and had good right to convey, and the breach had been assigned upon such cove- nants, the charge would have been correct, for Sawyer could have no right to sell while any person was in possession adverse to him." And in Clarke v. McAnulty, 3 Serg. & Rawle, 372, it was said, " It is urged that the statute of 32 Hen. VIII. c. 9, is not in force here, and as it is usual to sell land where the vendor is not in possession, a larger operation should be given to the covenant of warranty here than elsewhere, because the vendee, where he did not obtain ac- tual possession, would otherwise be without remedy. This is a good rea- son why a purchaser should secure himself by a covenant of seizin, or that the vendor has a lawful right to convey, but it is no reason why the law should interfere to cure the ef- fects of negligence at the expense of confounding settled distinctions." 82 THE COVENANT FOR SEIZIN. counteract this, and at the same time to preserve the statute itself, it seems to have been the aim of the legislature to exact still some notoriety in the transaction, and perhaps with this end the statute of enrolments^ was passed. Soon after came the " Bill of Bracery or Buying of Titles,"* since more commonly known as the " Pretended Title Act," which seems further to mark the design of the legislature to preserve the transfer of the possession as an ingredient of title, by prohibiting the bargain, sale or transfer of any premises of which the party had not been in possession or received the rents or profits for a year previously, under the penalty (imposed both upon the seller and the pur- chaser, if he purchased knowingly,) of the forfeiture of the value of the premises. " This statute," said Ch. J. Mon- tague,^ " has not altered the common law, for the common law before the statute was, that he who was out of posses- sion, ought not to bargain, grant or let his title ; and if he had done so, it would have been void ; then the statute was made in affirmation of the common law, and not in altera- tion of it ; and all that the statute has done is, it has added a greater penalty to that which was void by the common law before."* 1 27 Hen. VIII. c. 16. law. The common law forbids every 2 32 Hen. VHI. c. 9. transfer of a disputed title or rio-ht, 3 Partridge v. Strange, Plowden, whether relating to real or personal 88. estate, by a person out of possession ; * " It is a mistake to suppose,'' said and it is manifest that the reasons of Duer, J., delivering the opinion of the public policy upon which the inter- Court in Hoyt v. Thompson, 3 Sand- diction is founded, apply with equal ford'sSup.C. Rep. (N.y.) 430, "that force to every description of prop- the law of champerty is derived from erty; 1 Hawkins, P. C. b. 1, ch. 86, the provisions of the statute, which § 1 ; 2 Story's Eq. Jur. § 1048 • 4 we have re-enacted, that forbids the Black. Com. 135 ; Burke u. Green conveyance or sale of lands by a par- 2 Ball & Beatty, 517; Cholmondeley ty out of possession. The statutory v. Clinton, 4 Bligh, N. S. 4 • Baker prohibition is not only a partial affirm- v. Whiting, 3 Sumner, 475." The ance of a general rule of the common student will find the doctrine here THE COVENANT FOR SEIZIN. 38 This passage, to be properly understood, must be taken as having reference to the mode of conveyancing introduced by the statute of uses. The common law had indeed, long before then, declared that the transfer of a right of entry or a right of action was void, " lest there should be mainten- 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 the possession was not transferred with the right.^ But before that statute there could scarcely be such a thing as a transfer of land held at that time in adverse possession. " Where land was conveyed by feoffment, the only mode known to the earlier law, the difficulty with regard to pos- session could not arise ; for in order that the livery of seizin should be effectual, it was necessary in general for the feoffor to have actual possession at the time of livery made. For this purpose, a claim by him, and his presence upon the land, if with present right to possess it, were not sufficient ; but it was requisite that the party previously possessed, and all persons holding for him, should either be expelled from every part of the premises, or that he should virtually sur- render possession by giving his consent to the feoffment." ^ referred to very satisfactorily exam- Kingston's case, 2 Smith's Leading ined in the notes to Row v. Dawson, Cases. In the last American edition 3 Whfte and Tudor's Eq. Cas. 332. (the 4lh) of this book, which has been 1 Co. Litt. 214 a; Lampet's case, published since the former editions 10 Coke, 48. of the present work, the annotator 2 By the recent act of 8 & 9 Vict, has thus altered the expression of the c. 106, § 6, a contingent, execu- passage: "The distinction between tory, and future interest, and a pos- the mere principle that a thing not sibility coupled with an interest in possessed cannot be granted, and the land, also a right of entry, whether offence of maintenance, is the more immediate or future, vested or con- evident from the course of equity, tingent, may be disposed of by deed, which looks upon actual mainten- provided it do not defeat or enlarge ance in the same light as the com- an estate tail. mon law, (Stephen v. Bagwell, 15 3 Mr. Hare's note to Duchess of Ves. 139,) and yet gives effect to the S4> THE COVENANT FOR SEIZIN. When, however, the mode of assurance was altered, and the land could be transferred without a notorious change of possession, the application of the remarks of Ch. J. Mon- tague becomes obvious. Whatever may have been the in- tention of the legislature in passing the " Pretended Title Act," it is certain that it was judicially looked upon as scarcely altering the law as it stood at that time, and that the offence of maintenance consisted not so much in taking a conveyance of the whole or part of a thing not vested in the party by whom it was made, as in taking it in consider- ation of assisting or maintaining a suit for its recovery.^ Such has been the course of decision in England down to the present day,^ and it is there well settled, that where the transfer of future and contingent es- tates and interests. It consequently appears that the conveyance of es- tates not vested in interest, wa* void at law, not as amounting to mainten- ance, for had that been the case, no relief could have been afforded in equity, but under the operation of a general rule of policy, which forbade the transfer of any right not sustain- ed and accompanied by possession, in order to avoid giving occasion to maintenance ; Co. Litt. 314 ; Ba- con's Abr. tit., Grant, D. As this rule was founded' on the want of posses- sion, it did not apply when the mode of assurance implied and transferred an actual possession, unless the cir- cumstances were such as to show that maintenance actually existed. And this seems sufficient to explain the distinction between the effect of a feoffment, and of a grant ; for a feoff- ment was substantially livery of seiz- in, and livery could not be made un- less the feoffor was in actual posses- sion of the land at the time of making it ; Knox v. Jenks, 7 Mass. 488. Such a possession could not be ac- quired by an entry on land, held adversely by another, unless he and all persons holding under him were either expelled from every part of the premises, or gave their consent to the feoffment ; Litt. sect. 781 ; Co. Litt. 48 b. As, therefore, a feoff- ment could not be made without ob- taining actual possession, a previous want of possession formed no obsta- cle to its operation." 2 Smith's Lead. Cas. 623, (4th Am. ed.) 1 Note to Duchess of Kinaston's case, supra. 2 Stanley v. Jones, 7 Bin^. 369 ; Doe V. Evans, 1 Com. Bench, 717; Kitchens v. Lander, Cooper's Ch. Cas. 34 ; Sharp v. Carter, 3 P. Wms. 375 ; Prosser ji. Edmonds, 1 Younge & Col. (Excheq.) 481 ; Harrington V. Long, 2 Myl. & Keen, 590 ; An- son V. Lee, 4 Simons, 364 ; Hunter v. Daniel, 4 Hare, 420 ; Wilson v. Short, 6 Hare, 366 ; Cook v. Field, 15 Q. Bench, 460; Cockell v. Taylor, 15 Beavan, 103 ; S. C. 15 Eng. Law & Eq. R. 101. THE COVENANT FOR SEIZIN. 85 transfer is not made for the purpose of assisting or main- taining a suit, the mere fact of an adverse possession will not invalidate the conveyance.^ In many parts of this country, however, the doctrine receives a wider application. In some of the States, the statute of 32 Hen. VIII. c. 9, has heen re-enacted literally, in some it has been modified,'' in others the prohibition of champerty is regarded as part of the common law of the State,^ while in some it has no existence whatever.* In ' Doe V. Martyn, 8 Barn. & Cress. 497. ^ See, passim, 4 Kent's Com. 446 ; Sherry v. Frecking, 4 Duer, (N. Y.) 454 ; Sedgwick v. Stanton, 4 Kernan, (N. Y.) 289 ; Sherwood v. Waller, 20 Connect. 262 ; Newkirk v. Cone, 18 Illinois, 449 ; Breckenridge v. Moore, 3 B. Monroe, (Ken.) 629 ; Little V. Bishop, 9 Id. 247 ; Way V. Arnold, 18 Georgia, 181 ; Chairs V. Hohson, 10 Humph. (Tenn.) 355 ; Bledsoe v. Rogers^ 3 Sneed, (Tenn.) 466. 3 Brinley v. Whiting, 5 Pick. 355 ; Dexter v. Nelson, 6 Alabama, 69 ; Fite V. Doe, 1 Blackf. 127; Martin v. Pace, 6 Id. 99 ; Bowman u. Watham, 2 McLean, 380 ; Michael v. Nutting, 1 Carter, (Ind.) 481 ; Wellman v. Hickson, Id. 581 ; Wood v. McGuire, 21 Georgia, 576. * Such as Pennsylvania (Stoever V. Witman, 6 Binney, 420 ; Cresson V. Miller, 2 Watts, 272); Maine (the law having been recently altered, Buck V. Babcock, 36 Me. 491) ; New Hampshire (Maddock u. Wil- marth, 5 N. Hamp. 181) ; Vermont (Danforth v. Streeter, 2 Williams, 497) ; Delaware (Bayard v. McLean, 3 Harr. 139, where the subject was elaborately considered) ; New Jersey (Thomas v. Perry, 1 Peters' C. C. Eep. 54) ; Virginia (the Code having recently, in imitation of the statute of 8 & 9 Vict. c. 106, § 106, supra, p. 33, provided that " any interest in or claim to real estate may be disposed of by deed or will ; " Carrington v. Goddin, 13 Grattan, 599, and see the former statutes of champerty, thus repealed, referred to in Middleton v. Arnolds, 13 Grattan, 489) ; Arkansas (Lytle V. The State, 17 Ark. 608); Iowa (Wright v. Meek, 3 G. Greene, 472) ; and, it is believed, some other States. The following sketch of the stat- utes of champerty occurs in an able opinion delivered by Scott, J., in the recent case of Lytle et al. v. The State, 1 7 Ark. 665. " It is not to be 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; a law which peremptorily forbids the transfer to another of a right to seek redress in a court of justice. These statutes were de- signed to render this law of main- tenance more efficient and perfect ; and were suggested from time to time by the exigencies of the times, as the history of these enactments clear- S6 THE COVENANT FOR SEIZIN. those States, however, in which, whether by statute or common law, the offence of champerty is forbidden, the the King's Council, Clerks in Chan- cery and of the Exchequer, and other officials named, were forbidden to ly enough show. The law of main- tenance is to be traced no further back in the history of the common law than to about the close of the 11th century, when the Norman con- queror, having subjugated the country and despoiled the natives of their property, and dividing the whole kingdom into sixty thousand Knights' fees had distributed them among his followers. ' The first statute against champerty was passed in the year 1275, Stat. Westm. 1, ch. 25, 3 Edw. I. It provided that no minister of the King should maintain to have part.' Upon which Lord Coke says : ' Hereby it appeareth that it is no champerty unless the state,' &c., (that is, the agreement to divide the estate,) ' be for maintenance.' See Bayard v. McLane, 3 Harr. Kep. 210. The terms of that statute, more fully set out, were : ' No min- ister of the King shall maintain pleas, suits or matters depending in the King's courts for lands, tenements or other things, for to have part thereof, or other profit by covenant made ; and he that doth so, shall be pun- ished at the King's pleasure.' Com. Digest, Maintenance, A. ' Accord- ing to the commentary of Lord Coke, 2 Inst. 208, (by the words de- pending in the King's courts,) it is declared that, regularly, champerty is, pendente placito, and that within the words of the statute " or any- thing," are included leases for years, and other goods and chattels, debts and duties.' See 3 Younge & Jervis, Kep. 129. " By 2 Stat. Westm. ch. 49, 13 Edw. I., the Chancellor, Treasurer, Justices, purchase, or take by gift, lands or other matter in suit, pendente lite. 5 Com. Digest, p. 18. Upon which, Lord Coke remarks, in his reading upon this act : ' True it is, that if any other person, (i. e., than the Chancellor, Treasurer, and other per- sons named in the act,) purchase bonS fide, depending the suit, he is not in danger of champerty, but those per- sons here prohibited cannot purchase at all, neither for champerty or other- wise, depending the plea.' 2 Inst. 84, cited in Stanley v. Jones, 7 Bing. Rep. 377. These prohibitions — that in the one act, confined to the King's ministers, and in the other, extended to certain officials mentioned therein — were afterwards, by Stat. 28 Edw. III. ch. 11, (passed A. D. 1300,) ex- tended to all persons, under still higher penalties, with the following proviso in the body of the act, to wit : ' But it is not to be understood hereby that one may not have coun- sel of pleaders, or of learned men for his fee, or of his relations or neigh- bours.' See 3 Younge & Jervis, 129, for a full copy of this act. " Next in order of time was the statute, de definitio conspirat. 33 Edw. I. Stat. 2, which declares that, ' Cham- pertors be they who move pleas or suits, or cause them to be moved by their own procurement, or by others, and sue at their proper costs, to have part of the land in variance, or part of the gains.' Com. Digest, Main- tenance. "Besides these, there were other THE COVENANT FOR SEIZIN. 37 effect of such prohibition seems to be, that a conveyance by a party out of possession, and with an adverse possession against him, is void as against the party in possession — in other words, as respects the latter, the grantor has passed no right whatever to his grantee. The mere fact, therefore, of the transfer of real estate of which there is an adverse possession, is deemed of itself an offence within the spirit of the champerty acts. statutes passed in aid of the law of maintenance, forbidding persons to bind themselves by oaths, covenants, or otherwise, to move or maintain pleas for others, or ' by letter or otherwise' to 'maintain quarrels in the country to the let of the common law.' lb. p. 1 7, 18. "In Hume's History of England, (2d vol. p. 320,) the state of society, out of which sprang these stringent enactments, is referred to in connec- tion with the statute of conspirators above cited, and it is stated by this historian, that ' Instead of their for- mer associations for robbery and vio- lence, men entered into formal com- binations to support each other in lawsuits ; and it was found requisite to check this iniquity by acts of Par- liament.' It might be worthy of fur- ther inquiry, if time would permit, whether this maddened state of pub- lic mind must not be legitimately traced to an unsettled state of prop- erty, resulting from a greedy assump- tion of estates by the crown for for- feitures as escheats, and the regrant- ing of those estates to favorites and followers. At any rate, such infer- ences seem legitimate as connected with the subsequent parliamentary enactments in aid, and for strength- ening the law of maintenance, oocur- 4 ring somewhat over two centuries afterwards, in the reign of Henry the Eighth. It was in the year 1538 that this king had completed the suppres- sion of the monasteries in England, and proceeded to escheat their estates, and grant them to his courtiers and parasites ; and in the year 1540, he suppressed the Order of the Knights of Malta, and seized and disposed of their estates and revenues. And it was in the latter year, (38 Henry VIII. ch. 9,) that by act of Parha- ment, ' all former statutes against maintenance, champerty, &c., were confirmed ; ' and by the same stat- ute, 'that no person should unlaw- fully maintain or procure mainten- ance in any of the King's courts, &c., in any of his dominions, which have authority to hold plea of lands, &c., on pain, &c., and no person shall buy or sell, or by any means obtain any pretended right or title, &c., to any manor, lands, &c., unless he who sells, &c., his ancestor, or they by whom he claims, have been in possession there- of, or of the reversion, or remainder, .or take the rents or profits by the space of a year before the bargain, on pain to forfeit the value of the lands, &c., so bought and sold.' 5 Com. Digest, p. 17." So THE COVENANT FOR SEIZIN. It would seem, therefore, to have been the intention of the Courts in which the doctrine of actual seizin prevails, to consider the covenants for seizin and of good right to con- vey, as assurances to the purchaser that there was no such adverse possession of the subject of the purchase as would bring him within the penalties of champerty, and to furnish him with a recompense if such should be the case. If, there- fore, an actual seizin were transferred to the purchaser, the vendor had a right to convey, within the spirit of the cham- perty acts, and the covenants for seizin and of good right to convey were fully answered. Such at least would appear to be the more philosophical reason for the construction which it has been seen has, in some States, been given to these covenants. A question, however, arises in this connection as to the effect of the champerty acts on the covenants for title con- tained in the conveyance. It would seem that when the purchaser buys with knowledge of the state of the title, Courts will not lend their aid to enforce the covenants that he receives ; for, as has been said, " it was ever the pur- chaser's restless cupidity, stimulated by the low price of those dormant claims, and by the prospect of large profit, which attacked the quiet and repose of society ; and to give such a construction to the statute as would permit the buyer of dormant claims securely to take a deed or covenant from the claimant, and if he failed to recover by a demise in the name of such claimant, to indemnify himself by a suit against his vendor upon the covenant, would be to encourage and not to suppress the spirit of champerty." ^ An early case in Pennsylvania,^ and three of about the same date iti New York,^ which arose under peculiar cir- 1 WilliamsM.Hogan,Meigs,(Tenn.) 2 Mitchell v. Smith, 1 Binney, 110. 189. The statute in this State ren- 3 Belden v. Pitkins, 2 Caines, 149 ; ders, however, such a sale void for Whittakeru.Coue, 2 Johnson's Cases, all purposes. 58 ; Woodworth v. Janes, Id. 417. THE COVENANT FOR SEIZIN. 39 cunistances, may be here referred to as illustrative of this question. Some time after the settlement of Pennsylvania, many difficulties sprung from conflicting claims to lands in the northern part of that State, derived on the one hand from the proprietaries, or the Commonwealth, and, on the other, from the " Susquehanna Company," under the title of Connecticut, and after years of contest and even some blood- shed, Congress interfered, and certain commissioners or judges, appointed by its authority, decided the right of gov- ernment to be in Pennsylvania, leaving, however, the ques- tion of particular titles untouched. Many of the old settlers under the Connecticut title still remained, and numbers of new settlers under it intruded themselves, and after re- peated efforts to remedy the mischief, the Legislature of Pennsylvania, in lyO'S, passed an act called the Intrusion Law,^ the first section of which imposed a penalty upon any one who should intrude or settle within certain counties named, under any " half share right or pretended title not derived from the authority of this Commonwealth," and the second section made it also penal for any person to combine or conspire for the purpose of conveying or settling any such lands. In Woodworth v. Janes, decided in New York in 1800,^ a bill filed by the purchaser of a Connecticut title to com- pel repayment of that part of the purchase-money which had been paid, was dismissed by the Court, on the ground that as there was evidence that the purchaser bought with knowledge of the state of the title, equity could not lend its aid either to enforce or rescind such a contract, but would leave the parties to their remedies, if any, at law ; and in the subsequent case of Whittaker v. Cone,^ where the plain- 1 Act of nth of April, 1795 ; 3 3 2 Id. 58 ; decided after Wood- Smith's Laws of Pennsylvania, 209 ; worth v. Janes, though reported in a and see the note in that volume. prior part of the volume. 3 2 Johnson's Cases, 417. 40 THE COVENANT FOR SEIZIN. tiff sued at law upon promissory notes given for the pur- chase money of such a title, the Court refused to sanction a recovery, and the plaintiff was nonsuited. A similar de- cision was made in the same State, in Belden v. Pitkins,^ while in Pennsylvania, the case of Mitchell v. Smith,^ pre- senting facts almost identical with those in Whittaker v. Cone, came before the Court about the same time, and after elaborate argument was decided in favor of the defendant.^ 1 2 Caines, 149. 2 1 Binney, 110. 3 The reason for such a course of decision will be found in the often- quoted words of Lord Mansfield, in Holman v. Johnson, Cowper, 343. " The objection, that a contract is immoral or Illegal as between plain- tiff and defendant, sounds at all times very ill in the mouth of the defend- ant. It is not for his sake, however, that the objection is ever allowed, but it is founded on general princi- ples of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this : ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating, or other- wise, the cause of action appears to arise ex turpi causa, or the transgres- sion of a positive law of this country, then the Court says he has no right to be assisted. It is upon that ground the Court goes ; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it, for where both are equally in fault, '■potior est con- ditio defendentis.' " The ground taken by the cases cited in the text necessarily assumes that under such circumstances, the covenants cannot be deemed collate- ral to the transaction, so as to bring the case within a familiar train of author- ity, which the student will find in the notes to Collins v. Blantern, 1 Smith's Leading Cases, 169 ; Smith on Con- tracts, 151, &o. ; for the very object of a purchaser who, being fully cognizant of the state of the title, obtains these covenants, is to protect himself by means of them in the very transac- tion forbidden by the law. The gen- eral principle is well settled that " where honesty requires it, and ut res magis valeat quam pereat," Courts will endeavor to enforce independent covenants, as in Morris v. Leake, 8 Term, 415 ; Kerrison v. Cole, 8 East, 234, &c. Where, however, both par- ties are in pari delicto, or when a statute has made the transaction ab- solutely void, as is the case with the champerty acts in Kentucky, Breck- enridge v. Moore, 3 B. Monroe, 629, 645 ; Graves v. Leathers, 17 Id. 668, the covenants are useless to the party receiving them ; Lee v. Colehill, Cro. THE COVENANT FOR SEIZIN. 41 When, however, the conduct of the purchaser has not been such as to bring himself within the spirit of the cham- perty acts, it would seem that however inoperative the trans- fer might be as against the party in possession, yet as between the parties themselves it is valid,^ and will operate not merely by way of estoppel to the grantor,^ but the cove- nants in the deed can be made available to the grantee.^ Thus, in Phelps v. Decker,* decided in Massachusetts in 1813, the defendant, a resident of Pennsylvania, was sued in Massachusetts on the covenants for title contained in a deed executed by him in New York, and purporting to con- vey to the plaintiff, who resided in that State, land granted by the Susquehanna Company under the Connecticut title. The deed purported to convey the premises as " warranted from all claims and demands whatsoever, so far as the Con- necticut Susquehanna Company's purchase extends' and is regularly made," and there were also unlimited covenants Eliz. 527 ; Waters v. The Dean and Chapter of Norwich, 2 Brownlow, 158. So, too, where the deed is void from uncertainty ; Capenhurst v. Ca- penhurst, 1 Raym. 27, from not being signed, or the liJie ; Soprani v. Skuno, Yelverton, 19; Frontin v. Small, 2 Ld. Eaym. 1418. 1 Br. Ab. tit. Feoffment, pi. 1 9 ; Co. Litt. 369 ; Upton v. Barrett, Cro. Eliz. 445, per Beaumont, J. ; Aber- nathy v. Boazman, 24 Ala. 193 ; Mid- dleton V. Arnolds, 13 Grattan, (Va.) 489. 2 Jackson v. Demont, 9 Johns. 55 ; Livingston v. Peru Iron Co. 9 Wend. 516 ; Van Hoesen v. Benham, 15 Id. 165 ; Livingston b. Proseus, 2 Hill, 528; Wade v. Lindsay, 6 Metoalf, 407 ; Edwards v. Roys, 18 Vermont, 478 ; Den v. Geiger, 4 Halsted, (N. J.) 235. 4* 3 Abernathy v. Boazman, supra ; and such must necessarily have been the ground of the decision in Van Hoesen u. Benham, 15 Wend. 165, where the grantor was admitted as a witness for the grantee, on the release of the covenants for title. A decision to the contrary in Williams V. Hogan,Meigs' (Tenn.) R. 189, was cited approvingly by the Court in Abercrombie v. Baldwin, 15 Ala. 371 ; but in the more recent cases of Harvey v. Doe, 23 Ala. 637, and Abernathy v. Boazman, 24 Ala. 189, it was expressly held that the deed was valid as between the parties, and it was said that the decision in Ten- nessee must be considered as based upon the positive terms of the statute in that State. 4 10 Mass. 267. 42 THE COVENANT FOR SEIZIN. for seizin, of right to convey, for quiet enjoyment, and of warranty. The defendant pleaded that all the estate of the Susquehanna Company was regularly vested in him, and by him transferred to the plaintiff. To this the latter de- murred, and there was also a case stated, in which it was agreed that the defendant had the title of the Susquehanna Company, but none from the Commonwealth of Pennsyl- vania, and the statute in that State was considered to be before the Court as if specially pleaded. The case was argued three times, and the Court, after holding it under advisement, decided that other facts than were stated must be proved before the plaintiff could be said to have combined and conspired to convey a pretended title within the act. " If he purchased," said the Court,^ " ignorant of this stat- ute and of the defect of the title conveyed to him, as he must be presumed to have been, the deed as to him and against the defendant who deceived him, is good under the statute ; and supposing the deed executed within the State of New York, and that to be the only overt act provable to substantiate any offence within the penalties of the statute, even the defendant would not be liable. And although the deed may be so far illegal as to be void, and not only an ineffectual conveyance, but also incompetent evidence of title within the State of Pennsylvania, yet there seems to be no reason to conclude that it is void as between these parties. As a conveyance, its operation is local, and determinable only where the land lies, which was pretended to be con- veyed by it ; but respecting the consideration paid, and the personal contracts collateral to the title for the assurance of the purchaser, this contract, made in another State, with a person there domiciled, and not a subject of, or presumed to be conusant of the laws of Pennsylvania, is not to be con- sidered as void ah initio." 1 Per Sewall, J. THE COVENANT FOR SEIZIN. 48 This decision cannot, under the circumstances of the case, be considered as open to objection. It is distinguishable from the other cases which have been referred to under this statute, because in them the plaintiif came directly within the spirit of the act, and was really a party to the unlaw- ful traffic ; ^ and although it is well settled, at least in American law, that a purchaser of land in another State or country, places himself as to that land in the same position as its subject, and must be presumed to know the lex loci rei sitce, and to be willing that his contract should be gov- erned by it,^ yet it would seem that such constructive notice should not be deemed sufficient of itself to bring the con- duct of the purchaser within such enactments as the Penn- prior to the issuance of patents should be null and void ; " under -which statute it has been held, not only that the deed conveys no title what- ever, — Nichols V. Nichols, 3 Chand- ler, (Wise.) 195, — but that a war- ranty in a deed transferring such right could have no effect, even by es- toppel. Doe V. Hays, 1 Carter, (Ind.) R. 248 ; S. C. 1 Smith, (Ind.) 177. 2 Cutter V. Davenport, 1 Pick. (Mass.) 81 ; Horsford v. Nichols, 1 Paige, (N. Y.) 220 ; Wills v. Cow- per, 2 Ohio, 1 24 ; Chapman v. Rob- ertson, 6 Id. 630; Breckenridge v. Moore, 3 B.Monroe, (Ken.) 637; Story's Conflict of Laws, § 365 ; Wil- hams V. Maus, 6 Watts, (Pa.) 280. Such, too, seems to be the law in England ; Eobinson v. Bland, 1 W. Black. 246; S. C. 2 Burrow, 1079; Scott V. Alworthy, 2 Dow & Clarke, 412 ; Curtis v. Hutton, 14 Vesey, 541 ; Birtwhistle v. Vardill, 5 Barn. & Cress. 438 ; S. C. 9 Bligh, 32 ; Waterhouse v. Stansfield, 9 Hare, 233 ; S. C. 13 Eng. Law and Eq. R. 465. 1 It is distinguishable, moreover, from the case of Breckenridge v. Moore, 3 B. Monroe, 629, because there, although the plaintiff was an in- nocent holder, for value, of the note, whose consideration was the convey- ance of land in Kentucky held ad- versely at the time, yet the note was sued upon in Kentucky, whose cham- perty acts had been violated ; the lex fori, and the lex loci rei sitce were therefore the same ; and, moreover, it would appear from the decision, that the Kentucky champerty act, like the English statutes against usury and gaming, declared the contract void, thereby invalidating even negotiable notes based upon it, in the hands of holders for value without notice, by expressly providing that " no right of action shall accrue to either party under such deed ; " Graves v. Leath- ers, 17 B.Monroe, 668. The same remark applies to the act of Congress of 29th of May, 1830, " granting pre- emption rights to settlers on the pub- lic lands," which declared " that all transfers of the right of pre-emption 44 THE COVENANT FOR SEIZIN. sylvania statute, or the champerty acts. In the cases cited from New York and Pennsylvania, the purchaser had actual notice of the enactment, and of the state of the title.^ The result, then, of these authorities, as connected with the doctrine of actual seizin, appears to be this. It is probable that the covenants for seizin and of good right to convey were either introduced or applied in conveyances in some of the colonies in this country, as assurances to the purchaser that there was no such adverse possession as would render the deed inoperative as a muniment of title — as assurances that the vendor had such an actual seizin of the subject of the purchase, as would give him a good right to convey it within the spirit of the statutes referred to. With this interpretation, the language used in the cases which have been referred to appears perfectly intelligible. The only case in which it would appear that the* covenants could not be used for that purpose, would be where the pur- chaser bought with such knowledge of the state of the title, as to bring the case within the champerty acts. It will be observed that so far as those statutes are con- cerned, it is immaterial whether the adverse possession has been recent in its commencement, or has continued for so long a time as, under the limitation acts, to have ripened into a perfect title. It is the existence of the adverse possession which constitutes the oflfence which these statutes forbid — which deprives the vendor of "a right to convey" — which ' In considering the cases gener- in yiolation of other statutory provis- ally upon the subject of a party to a, ions, and Holman v. Johnson, Cow- contract being cognizant of or partic- per, 342, which was much relied on ipating in the illegality which affects in deciding the case of Phelps v. it, the student will find some variety Decker, was one of the smuggling of decision both in the English and cases. The course of decision upon American courts. The former, until this subject is noticed in Rawle's very recently, looked less severely edition of Smith on Contracts, p. upon contracts connected with a vio- 240, &o. lation of the revenue laws, than those THE COVENANT FOR SEIZIN, 45 gives to his deed no effect as against the one in possession, and which therefore causes a breach of the covenants re- ferred to. Where, however, such statutes are not in force, and con- sequently where no such construction can, consistently with principle, be given to these covenants, the duration of the adverse possession may be an important element in deter- mining the question of the breach of the covenant for seizin. Where the adverse possession has been so actual, continued, visible, notorious, distinct, and hostile,^ as under the limita- tion acts to have formed an indefeasible title, it is obvious that the covenant for seizin must be broken.^ It is not, however, altogether free from doubt whether such would be the case if the possession had not endured for the requisite length of time.' It is certain that the English courts seem disposed, at the present day, to treat mere possession, un- 1 See the note to Taylor v. Horde, in 2 Smith's Leading Cases, 492. 2 Wilson V. Forbes, 2 Devereux, 30. 3 In Thomas v. Perry, 1 Peters' C. C. Eep. 52, Mr. Justice Washington ■was of the opinion, that " if the posses- sions amounted to actual ousters un- der claims of title however defective, the covenant of seizin was broken," or, as he subsequently said, " that if at the time the covenant was entered into, the grantor was disseized, the covenant is broken, how good soever his title may be." p. 55. (This, it should be observed, was said without any reference to the champerty acts, which were not in force in New Jer- sey.) The case, however, was de- cided upon another ground. In the first edition of this work, the proposition thus stated in the text as matter of doubt, was treated as if set- tled in accordance with the authority just referred to. But on more care- ful examination of the cases cited in support of it, none but Thomas v. Perry appears to go to that extent. In Wilson v. Forbes, 2 Dev. 30, the possession had lasted for twenty-five years, and was therefore an indefea- sible one. In Wheeler v. Hatch, 3 -Fairfield, (Me.) 88, the report merely says that the grantor was " not seiz- ed," but says nothing of an adverse possession, while the expressions in Phelps V. Sawyer, 1 Aiken, 157, 158, are properly referable to the effect of the champerty acts; supra, p. 31. In Fitzhugh v. Croghan, 2 J. J. Marshall, 430, however, the Court in giving its general views on the nature of the covenant (see them cited, supra, p. 25,) expressed an opinion that " a covenant of seizin is broken if the covenantor have 46 THE COVENANT FOR SEIZIN. accompanied by right, as destitute of all the qualities of an estate.^ And where in a case in the Exchequer^ the vendor covenanted generally that he was seized in fee, without any condition or other estate whereby to alter, bar, change, charge, burden, impeach, incumber, or determine the same, and had good right to convey the same, and it appeared that the lady of the manor had previously demised a portion of the subject of the purchase for ninety-nine years, and the lessees had entered upon and continued to enjoy possession, notwithstanding the able argument of Mr. Preston, for the plaintiflF, it was held that the covenants did not extend to these leases. It was asked by the Court, " what can a man be supposed to covenant against beyond the validity of the title ■? and most assuredly not against these surreptitious pocket leases." The action of covenant, it was added, only extended to the consequence of legal acts, and the reason was to be found in the case of Hayes v. Bickerstaflf,^ that the law shall never judge that a man covenants against the wrongful acts of strangers. Upon this decision, however. Lord St. Leonards has made the following remarks : " It will be observed that the leases were accompanied with actual possession by the les- sees, who had expended money on the property. They were, therefore, within the covenants ; and unless the cove- nants were held to extend to these leases, general covenants for title would be waste paper. They are always intended to guard against a title adverse to the covenantors, although it may not be a lawful title. Clearly the leases were a charge on the property at the time of the conveyance, and an ejectment at all events was necessary to dispossess the not the possession, the right of Doe t>. Martyn, 8 Barn. & Cress. 497; possession, and the right or legal Jerritt u. Weare, 3 Price, 575. title." 9 Jerritt v. Weare, 3 Price, 576. 1 Doe V. Hull, 2 Dowl. & Ry. 38 ; 3 Vaughan's Rep. 118. Cully u. Doe, 11 Ad. & Ell. 1008; THE COVENANT FOR SEIZIN. 47 lessees. They therefore were an incumbrance within the covenant. It is not like the case of interruptions subsequent to the conveyance, by persons not claiming lawfully.^ The case was argued upon much higher grounds,^ and this prob- ably led the Court not to give due weight to the above sim- ple view of it." It may be thought that too much space has been occupied with these decisions upon the nature of a covenant, usually accompanied by others which would seem to correct, by their own scope and application, any difficulty which could arise from the purchaser's being without remedy, in case of sub- sequent loss, if he had received an actual seizin at the time of his purchase. But although, if the covenant for seizin were the only one in the conveyance, the questions just con- sidered would be of much practical importance, yet they possess scarcely less, even where there are also covenants for quiet enjoyment or of warranty. For these covenants, which are said to assure the purchaser's possession, are therefore broken only by his eviction from it ; and although the doctrine of constructive eviction has been in some cases carried very far, yet there are, perhaps, few which allow a 1 It is this which distinguishes the to the third volume of the " Abstracts case from Hayes v. Bickerstaff. of Title " sufficiently testify. Lord 2 2 Sugden on Vendors, 514. By St. Leonards, as will be perceiv- the higher grounds here referred to, ed, gives no opinion as to this, is meant the position assumed by Mr. but questions the decision because Preston in the argument in favor of the general covenants for title were the doctrine of disseizin, as it was held not to extend to these leases, conceived by him (in common with under which an adverse possession, Mr. Charles Butler and others) to defeasible only by an ejectment, had have existed at common law, and as sprung ; and his opinion seems to be opposed to the doctrines enforced by generally adopted by the profession. Lord Mansfield, in the case of Tay- if we may judge from the fact that the lor V. Horde, 1 Burrow, 49. See author of the recent rival treatise on supra, note to page 16. On these the Law of Vendors and Purchasers, grounds, Mr. Preston never forgave has also intimated that " this decis- the decision in Jerritt v. Weare, as ion seems to be of very doubtful au- his pointed remarks in the preface thority." Dart on Vendors, p. 369. 48 THE COVENANT FOR SEIZIN. purchaser to elect to consider himself evicted, by buying in the paramount title before it shall have been hostilely as- serted.^ Yet there are many instances in which this vrould be most advantageous to him, (it being always understood that his damages are measured by what he has paid,) in preference to waiting till the paramount owner should choose to enforce his claim. Many authorities, however, refuse to consider this as an eviction within the covenants for quiet enjoyment or of warranty ; and where, under such circum- stances, the covenant for seizin is held to have been fully answered by the transfer of the actual seizin, the purchaser is in the same position as if the covenants for quiet enjoy- ment or of warranty were the only ones in the deed,^ and he is obliged to await the time of his involuntary eviction, instead of purchasing in the title, and thus acquiring a right to damages upon his covenant for seizin, to the extent of the amount paid by him. The doctrine of actual seizin does not, however, seem to prevail throughout the States generally, but only in Maine, Massachusetts, and to a qualified extent in Ohio. Else- where, the covenant for seizin is regarded as a covenant for the title, the word being used as synonymous with right,^ and although there would be no question that it would be broken by an adverse possession, continued for the length 1 See Chapter VII. 2 J. J. Marsh. (Ken.) 430 ; see the a Clark v. MoAnulty, 3 Serg. & remarks on that case cited, supra, Ka^le, 372. p. 25, note; Martin v. Baker, 5 3 Greenby v. Wilcocks, 2 Johns. Blackf. (Ind.) 232 ; Woods v. North, 1 ; Morris v. Phelps, 5 Id. 49 ; Ab- 6 Humph. (Tenn.) 309 ; Pringle v. bott V. AUeu, 14 Id. 48 ; Fitch v. Witten, 1 Bay, (S. Car.) 256 ; see Baldwin, 17 Id. 161; M'Carty v. the cases cited, sujam, p. 27, note. Legget, 3 Hill, (N. Y.) 134 ; Mott v. In England such has been always Palmer, 1 Comstock, (N. Y.) 564; the case; Gray v. Briscoe, Noy, 142 ; Hastings v. Welborn, 2 Verm. 417; Howell v. Richards, 11 East, 641 ; Thomas v. Perry, 1 Peters' C. C. Young v. Raincock, 7 Com. Bench, Rep. 57 ; Pollard v. Dwight, 4 310. Cranch, 430 ; Eitzhugh v. Croghan, THE COVENANT FOR SEIZIN. 49 of time required by the limitation acts,^ yet such a posses- sion would itself amount to an indefeasible title, which if not marketable, would only be because its validity was a question of evidence rather than of law. On the whole view, therefore, of this subject, we, may conclude, that the weight of American authority is practi- cally opposed to the doctrine of actual seizin being sufficient to support this covenant. It may, however, be observed that if the law of cove- nants for title is abstractly treated as a part of the law of real estate, the student will be constantly led into prac- tical difficulties. The law of real estate is an abstract and artificial system, based upon rules, many of which sprung from, and were applicable to a difierent state of society. These rules have required to be modified or changed with great caution and delicacy, if at all. It has been generally acknowledged, that it is of less consequence what may, or may not be the precise rule on a particular branch of this part of the law, than that the rule, when once established, should be looked upon as a rule of property, and, as such, subject, not to judicial but to legislative alteration. But the law of covenants for title is, as it were, collateral to this system. In part it is subject to its rules, and in part it must be moulded and governed by the intention of the parties as expressed by the tenor of the whole instrument. To say, therefore, that a particular construction given to a certain covenant is or is not the law of a State, means practically no more than that in cases of difficulty, the intention of the parties will, to a certain extent, be refer- able to that construction. But while the intention of the parties is to be the govern- ing principle, yet it is conceived that in most instances in which the relation of vendor and purchaser is entered into, 1 Wilson V. Forbes, 2 Devereux, (N. Car.) 30. 5 50 THE COVENANT FOR SEIZIN. that intention, when applied to the averment that the vendor is seized, and that he will bind himself to that effect, ex- tends beyond such a mere seizin as will enable the pur- chaser to obtain possession in the first instance. The want of present possession is a defect which can be dis- covered by immediate observation or inquiry, and it is not a defect against which a purchaser usually seeks to pro- tect himself by a covenant. Not so, as to a defect in the title. An analogy may be found in the rule with respect to chattels. In the sale of these, a warranty of title is im- plied by the civil and the common law.^ But possession is all that can ever be transferred. Yet a subsequent loss of possession by title paramount, will be a breach of this warranty, because the vendor is understood to have agreed lawfully to transfer a possession which can be retained ; and such, it is believed, is the common understanding of purchasers of real estate who receive a covenant for seizin. There are several questions connected with the cove- nant for seizin, whose consideration, however, seems more proper under other heads. Thus the capacity of an heir or an assignee to take advantage of this covenant will be considered in the chapter on " the extent to which cove- nants for title run with the land." ^ So, where a purchaser has, in giving a mortgage for the purchase-money, inserted in it the same covenants which he has received from his vendor, the question has arisen 1 At least such is the common law tract of sale of a personal chattel, of this country, and it was so con- In a subsequent case, however, the sidered by the profession in Eng- Court of Queen's Bench seemed by land. In a very recent case, how- no means prepared to adopt this ever, in the Court of Exchequer, decision ; Simms v. Marryatt, 1 7 (Morley v. Attenborough, 3 Excheq. Queen's Bench R. 281 ; 7 Eng. 500,) it was held that there is no Law & Eq. R. 336. implied warranty of title in the con- 2 Chapter VIII. THE COVENANT FOR SEIZIN, 51 whether the former was estopped by his own covenants, from an action on those of the latter. This is considered in the chapter on " the operation of covenants for title, by way of estoppel or rebutter." ^ Again, it has sometimes been made a question, whether the covenant for seizin should be so construed, relatively to the quantity of land conveyed, as to be deemed an as- surance of the existence of that quantity. Abstractly, the question resolves itself into whether a covenant for title implies a covenant for quantity, which is considered in the chapter on " implied covenants," ^ and as a general rule must be answered in the negative. It is well settled that the covenant for seizin is not broken by the existence of easements or incumbrances which do not strike at the technical seizin of the purchaser. Thus the existence of a highway over part of the land con- veyed is no breach of this covenant,^ since it has been con- sistently settled that although the public may have a right of passage over the way, the freehold technically remains in the owner of the soil ; * and so of a right to take water from a course within the land conveyed, and the like,^ So vidth respect to a judgment, a mortgage, or a right of dower ; to whatever extent these may operate as a breach of the covenant against incumbrances, they do not aflfect the covenant for seizin,® since a judgment, or a right of 1 Chapter IX. Jones, 1 Barr, (Penn. State R.) 336 ; 2 Chapter X. Peck v. Smith, 1 Connect. 103-147. 3 Whitbeck v, Cooke, 15 Johns. ^ Ginn v. Hancock, 31 Maine, 46. 483. As to whether a public road is 6 Xuite v. Miller, 10 Ohio, 388; a breach of the covenant against in- Fitzhugh v. Croghan, 2 J. J. Mar- cumbrances, seethe ensuing Chapter, shall, (Ken.) 430 ; Sedgwick v. Hol- 4 2 Inst. 705 ; Goodtitle v. Alker, lenback, 7 Johns. 380 ; Lewis v. 1 Burrow, 133 ; Cortelyou v. Van Lewis, 5 Richardson's Law R. (S. Brundt, 2 Johns. 357; Jackson v. Car.) 12; Jeter v. Glenn, 9 Id. Hathaway, 15 Johns. 449 ; Lewis v. 376. 52 THE COVENANT FOR SEIZIN. dower, do not devest the technical title or seizin of the grantor ; and a mortgage, although in strictness it pur- ports to pass the legal title, yet it is almost universally regarded at the present day, as a mere security for the payment of the debt.-' If, however, the mortgagee had entered under his mortgage (as is allowed by local statutes in many States), the covenant would, it is supposed, be held to be broken. A breach will, however, be caused by the existence of an outstanding life estate,^ or, it is apprehended, of a term of years. So if the grantor has only an estate tail ; ^ and in a late case where he covenanted that he was seized of an undivided portion of certain premises, of which, however, partition had previously been made, the covenant for seizin was held to be broken.* But where the alleged breach was that one of the parties to a deed was a minor, it was held that the title having passed to her grantee until disaffirm- ance by her after majority,^ there could therefore be no breach of the covenant until she entered or in some legal mode avoided the conveyance.® So a breach will occur if no such land exist as that purported to be conveyed,^ and the covenant has been held to extend not only to the land itself but to all such things as should be properly appur- tenant to it and pass by a grant of the freehold. Thus in a recent case it was held to be broken where the grantor 1 The passage in the text was cited 5 See as to this Bool v. Mix, 17 in the recent case of Reasoner v. Wendell, (N. Y.) 132. Edmuudson, 5 Indiana, 394, where 6 Van Nostrand v. Wright, Lalor's it was held that the mortgagee not Supplement to Hill & Denio's K. having entered, the covenant for (N. Y.) 26(y. The minority of the seizin was not broken. grantor is, however, a breach of the 2 Mills V. Gatlin, 22 Vermont, 106. covenant for good right to convey; 3 Comstock V. Smith, 23 Connect. Nash v. Ashton, T. Jones, 195. 352. 7 Bacon v. Lincoln, 4 Gushing, 4 Morrison v. MoArthur, 43 Maine, (Mass.) 212. 567. THE COVENANT FOR SEIZIN. 58 had, before the conveyance, sold to another a quantity of rails which had been erected into a fence, and thereby formed part of the freehold,^ and a similar principle has been ap- plied under the covenant of warranty, to buildings upon the land, the right to remove which was vested in other parties and did not pass to the purchaser by the conveyance.^ As respects the pleadings in an action upon this cove- nant, it has been settled from an early period that in assign- ing the breach of the covenants for seizin and of good right to convey, it is unnecessary to do more than negative the words of the covenant generally. In Bradshaw's case,^ which was an action brought on a covenant in a lease that the lessor had full power to convey, it was held " to lie more properly in the knowledge of the lessor what estate he himself has in the land which he demises, than the lessee, who is a stranger to it ; and therefore the defendant ought to show what estate he had in the land at the time of the demise made, by which it might appear to the Court that he had full power and lawful authority to demise it." In a later case,* where the covenant was contained in a conveyance of a freehold, it was endeavored, on demurrer, to distinguish this case from that just cited, "because the plaintiff ought to have shown of what estate the defendant was seized, in regard he had departed with all his writings concerning the land, in presumption of law, and therefore the plaintiff well knew the title ; and it is not like to Bradshaw's case because there the covenant was with the lessee for years, who had not the writings." But this distinction was not recognized, and the rule in Bradshaw's case has iMott V. Palmer, 1 Comstook, (N. before the Court on another ground ; Y.) 527. 2 Harris, (14 Penn. State E.) 336. a West V. Stewart, 7 Barr, (Penn. 3 9 Coke, 60. State K. 122. This case came again * Glinnister v. Audley, T. Ray- mond, 14. 5* 54 THE COVENANT FOR SEIZIN. since been consistently adhered to, and applied as well to covenants in a conveyance of a freehold as of a leasehold estate.^ As a consequence of this, it is well settled that in an ac- tion on the covenant for seizin it is unnecessary either to aver an eviction in the declaration or lay any special dam- age.^ A distinction thus exists, as respects the pleadings, between the covenant for seizin (with which may be classed the covenant for right to convey), and the other covenants for title, as, in suing upon the latter, it seems, in the first place, generally necessary that the incumbrance or para- mount title should be particularly specified in the declara- tion, as well, perhaps, as the results which it has caused.^ Nor is it necessary that in a suit upon the covenant for seizin the plaintiff's subsequent pleadings should set forth the particulars of the paramount title. Although in an early case in Massachusetts,* Parsons, Ch. J., in stating some general propositions, remarked that " the defendant in his bar should regularly maintain his seizin, and then the plaintiff' in his replication should aver who in fact was seized," yet, as was said in a subsequent decision in New York,® that case presented a question of evidence merely, 1 Muscat V. Ballet, Cro. Jac. 369 ; seems, however, to have been other- 2 Saund. 181 b, note 10; Bender v. wise formerly, in Ohio, under a local Fromberger, 4 Dall. 436 ; Clark v. statute, which has since been re- McAnulty, 3 Serg. & Rawle, 372; pealed; see Robinson v. Neil, 3 Blanchard t;. Hoxie, 34 Maine, 376; Ohio, 526. The early case to the Marston v. Hobbs, 2 Mass. 433 ; same eflfect in Connecticut, of Wil- Wait V. Maxwell, 4 Pick. 88 ; Bacon ford v. Rose, 2 Root, 14, must proba- V. Lincoln, 4 Gushing, (Mass.) 212; bly have proceeded on some local Floom V. Beard, 8 Blackford, (Ind.) statute, as otherwise it is opposed to 76 ; Abbott v. Allen, 14 Johnson, the current of authority. 248; Pollard v. Dwight, 4 Cranch, 2 Abbott u. Allen, 14 Johns. 248; 430 ; Duval v. Craig, 2 Wheat. 62, Bird v. Smith, 3 English, (Ark.) 368. note ; Mackey v. Collins, 2 Nott & 3 See infra, Chap. III. V. and VII. McCord, (S. Car.) 186 ; Lot v. 4 Marston v. Hobbs, 2 Mass. 483. Thomas, Pennington, (N. Jer.) 300 ; • Abbott v. Allen, 14 Johns. 248. Rickert v. Snyder, 9 Wend. 421. It Piatt, J. THE COVENANT FOR SEIZIN. 55 and not a question of pleading. " All that is incumbent on the plaintiff," said the Court, " is to negate the title of the defendant, who pleads affirmatively and generally that he had a good title, and the general replication in this case is sufficient. This differs from the class of cases where the plea avers a general performance of the covenant ; and then the plaintiff is required in his replication to specify wherein the breach has been committed ; for instance, in an action of covenant for not repairing a leased messuage, the declara- tion may assign the breach generally, that the covenantor did not repair, etc. ; the defendant may then plead gener- ally a performance of his covenant ; and the plaintiflF, then, is required in his replication to specify wherein the repairs have been omitted, in order that the defendant may be ap- prised, with reasonable certainty, what is the object of the suit. The reasons for requiring such a special replication are, first, that the subject to which the covenants relate is per- fectly known to the party complaining of the breach ; and, second, the suit has a more general aspect, and the subject of the breach is multifarious. Therefore the law, in such case, most reasonably requires the replication to specify that a chimney has fallen down, that the windows are broken, and that the barn is unroofed, or that the fences are prostrate, etc. In this case, the point in controversy is single and ab- stract. The question is, merely, whether the defendants had an indefeasible title, and the only evidence in relation to that title may be exclusively in the power of the defendants." It is, of course, hardly necessary to mention that in suing on the covenants for title the plaintiff may recover on the count that is well laid, although the others may be defective.-^ As respects the burden of proof, it is well settled that in an action upon the covenants against incumbrances, 1 Blanckard v. Hoxie, 34 Maine, 376. 56 THE COVENANT FOR SEIZIN. for quiet enjoyment, or of warranty, it is cast upon the plaintiff, who is in the first instance obHged to make out the paramount title with all the particularity of a plaintiff in ejectment.^ It is doubtful how far such a rule is applicable to actions on the covenant for seizin. On the one hand it would seem that the rule as to the evidence should correspond with the rule as to the pleadings, and that the knowledge of the state of the title being supposed to rest with the defendant, he is bound in the first instance to maintain the affirmative of his covenant.^ On the other hand, it would seem con- 1 Thus in Kennedy v. Newman, 1 Sandford's Sup. C. E. (N. Y.) 187, the plaintiiFwas nonsuited because he did not, step by step, prove the reg- ularity of proceedings under a minis- terial jurisdiction by which his title had been devested. 2 And such was held to be the law in the recent case of SwaflFord v. Whipple, 3 G. Greene, (Iowa,) 264, where the Court (per Greene, J.) said, " It is a well-settled rule of evi- dence that the party who alleges shall prove the affirmative of any proposition. Ordinarily the issue lies upon the plaintiff, and the onus probandi is on him to establish what he affirms. But it frequently hap- pens that in making up an issue, the defendant assumes the affirmative proposition, or confesses and seeks to avoid the action, and would fail if no evidence in avoidance should be ad- duced by him. In such event the proof is incumbent on the defend- ant, as the party who would fail, if no evidence should be given on either side, or as the party who has thrown a negative proposition on the plaintiff, which might be difficiilt, and perhaps impossible for him to prove, and in relation to which the defend- ant has all the evidence in his pos- session. Hence it is laid down that the onus probandi lies upon the party who seeks to support his action or defence by a particular fact of which he is supposed to be cognizant. Thus when a party pleads infancy, or a license, he must prove it. "So if the defendant plead freehold in him- self in an action of trespass quare clausum fregit. 1 Stark. Ev. 418-423. In Ayer v. Austin, 6 Pick. 225, the same rule is recognized as applicable to all cases, when, by the pleadings, nothing essential to the action is re- quired of the plaintiff, and when the finding for the defendant depends upon affirmative proof from him. In the present case there was but a single point in controversy before the jury. The defendant pleaded that he was lawfully seized of the premises. Upon this question he assumed the affirmative ; it was for his interest to prove it, as it would operate a complete bar to the action. The nature of the title to the prem- ises may have rendered it extremely THE COVENANT FOR SEIZIN. S^ trary to general principles that a vendor who had given a covenant for seizin could be called upon at any time after the execution of the deed, and at the caprice of his cov- enantee, to make out affirmatively a perfect title, without a defect or some loss having been shown in the first instance. It is probable that the true rule is to be found between these extremes, and that while a plaintiff is not obliged to prove the defect with the particularity required in suing on the other covenants, he cannot throw entirely upon his vendor the burden of maintaining the perfection of the title he has conveyed.^ Few questions in the law have given rise to more discus- sion in this country, than the measure of damages upon covenants for title. From the period when the old warranty was first superseded by these covenants down to the present time, comparatively httle aid is obtained from English au- difficult, or even impossible for the the deed was executed ; " and in plaintiff to prove the negative aver- Abbott v. Allen, 14 Johnson, 253, it ment, as the only evidence in relation was said, " Until the grantor discloses to the title may have been exclu- his title, the plaintiff holds the nega- sively under the control of the de- tive merely, and is not bound to aver fendant. If he had title at the time or prove any fact in regard to an the deed declared on was executed, outstanding title. . . . The he could easily have shown it ; and grantor has no right to shift the re- if he had no title, the covenant was sponsibility from his own shoulders broken, regardless of any third per- by imposing it on the grantee to son who may have had the title. We aver and prove at his peril any par- conclude then that the Court did not ticular outstanding title." err in deciding that the onus pro- l And in some of the cases it will bandi lay upon the defendant." So be found that the plaintiff, after in Marston v. Hobbs, 2 Mass. 437, averring generally that the defend- the defendant having admitted the ant was not seized, went on with execution of the deed, it was of his evidence to show the defective course held that the plaintiff was not title which he had received ; Pol- obliged to produce it, and then the lard v. Dwight, 4 Cranch, 431 ; Ba- Court went on to say, " The defend- con v. Lincoln, 4 Gushing, (Mass.) ant to maintain the issues on his part 212. was obliged to prove his seizin when 58 ' THE COVENANT FOR SEIZIN. thority, while the rules of the civil law, in the endeavor to afford in each case a full compensation for the injury sus- tained, are so varied as in some instances to be almost arbi- trary.^ But on this side of the Atlantic the subject has been handled with a fulness and precision readily accounted for by its great practical importance in a country where the value of land is constantly varying, owing to rapid improve- ment or other circumstances incidental to its settlement. It will be hereafter seen ^ that with regard to the cove- nants for quiet enjoyment and of warranty, the measure of damages has, notwithstanding this discussion, been regu- lated by a different standard in different States. But as respects the covenants for seizin and of good right to con- vey, the doctrine announced in a few early cases has been consistently followed and observed throughout the breadth of the country, and it has become a settled rule that in an action upon these covenants the damages are limited by the consideration-money and interest. As a general rule, this is the standard. They may, under some circumstances, fall below, but can never exceed it.^ The question of the measure of damages on a covenant for seizin seems to have been first presented in this country in the case of Staats v. Ten Eyck,* decided in the year 1805, and to the principles there partially advanced, but more fully considered in the ensuing year in Pennsylvania, in Bender v. Fromberger,^ and again in New York, in 1809, in Pitcher «;. Livingston,^ consistent assent has been given. It is elsewhere remarked ' that some diversity of opinion 1 See, passim, Sedgwick on Dam- that the consideration named in the ages, 24, 27. deed is less than that actually paid. 2 Infra, Chapter VII. 4 3 Caines, 111. 3 That is to say the real considera- 5 4. Dallas, 436. tion, for as is hereafter shown (infra, ^ 4 Johns. 1. p. 68,) evidence is admissible to show ' See Chapter VII. THE COVENANT FOR SEIZIN. 59 has existed at the present day as to whether the remedy afforded upon a voucher to warranty or a warrantia chartcB was restricted to other lands, or whether, in default of these, damages were awarded in their place. However this may he, it is perfectly clear that the measure of value was taken to be that existing at the time the warranty was entered into,^ and the introduction of covenants for title in place of the warranty does not seem to have altered the measure of compensation,^ but the pecuniary damages, like the value of the feud given as a recompense, or its equivalent, received 1 19 Hen. VI. 45, 46 ; Brooke's Ab. tit. Voucher, pi. 69 ; Eecouver in Value, pi. 59. 2 It is a little singular that the case of Flureau v. ThornhiU, 2 H. Black. 1078, has in several instances been cited as a direct authority for this position. That well-known case decided no more than that upon a contract for the purchase of real es- tate, to which the vendor was (with- out fraud) unable to make a title, the purchaser was not entitled to dam- ages for the fancied goodness of the bargain which he had lost, a rule which, though then for the first time laid down and since at times doubted, must now be considered as settled on both sides of the Atlantic ; Sugden on Vendors, (11th ed.) 424 ; Walker V. Moore, 10 Barn. & Cress. 416 ; Worthington v. Warrington, 8 Com. Bench, 134; Pounsett v. Puller, 17 Com. Bench, 660 ; McClowry v. Croghan's Adm., 7 Casey, (31 Penn. State R.) 22 ; S. C, more fully re- ported. Grant, (Pa.) 307 ; Thompson V. Guthrie, 9 Leigh, (Va.) Ill ; Allen V. Anderson, 2 Bibb, (Ken.) 415. " The rule of the common law," said Parke, B., in Robinson v. Har- man, 1 Exchequer, 850, " is that where a party sustains a loss by rea- son of a breach of contract, he is, so far as money can do it, to be placed in the same condition with respect to damages as if the contract had been performed. The case of Flureau v. ThornhiU qualified that rule of the common law. It was there held that contracts for the sale of real estate are merely on condition that the vendor has a good title, so that when a person contracts to sell real prop- erty, there is an implied understand- ing, that if he fail to make a good title the only damages recoverable are the expenses which the vendee may be put to in investigating the title." An exception has been en- grafted upon this exception in cases where the purchaser knew that his title was defective, or otherwise acted in bad faith ; Hopkins v. Grazebrook, 6 Barn. 8e Cress. 31 ; Robinson v. Harman, supra ; Lee v. Dean, 3 Wharton, (Pa.) 331 ; Bitner v. Brough, 1 Jones, (11 Penn. State E.) 127, though this latter exception, however apparently well settled in practice, cannot, it has been said, be justified or explained in principle; Pounsett V. Fuller, supra ; Sedgwick on Damages, 208. The truth is, as 60 THE COVENANT FOR SEIZIN. no increment, either from the rise of the property by ad- ventitious means, or by improvements put upon it. In Staats v. Ten Eyck, the question before the Court was hmited to whether the vendor should be held liable for a rise in the value of the land from adventitious sources in- dependently of beneficial improvements, and the policy of adhering to the rule which governed the remedy in the ancient action of warranty, was declared by the Court ^ to be not only in accordance with authority, but based upon rea- sonable principles. The want of title usually originated, it was said, in mutual error, the vendor disclosing his proofs and knowledge of the title, and the vendee examining for himself; and it would hamper the growth of a country whose resources were yet undeveloped, if a vendor were obliged to restore to a purchaser the increased value of land arising from the discovery of a mine or the progress of a town in its neighborhood. The common-law doctrine was therefore adhered to, and the measure of damages on a breach of the covenant for seizin declared to be the value of the lands at the time of sale, the best estimate of which was found in the considera- tion money paid ; and to counterbalance the claim for mesne profits, it was deemed proper to allow interest upon this amount whenever they could properly be recovered by the -paramount owner.^ The question how far the vendor should be liable to make good the outlay of the purchaser in bene- ficial improvements, was not then presented. was correctly said in Cox's Heirs v. the amount of recompense to the Strode's Heirs, 2 Bibb, (Ken.) 277, plaintiff, which would scarcely have that it is rather from the absence of happened in case these covenants decisions in England, that we must had introduced a new measure of arrive at the conclusion stated in the damages." text : " In all the comments made l Kent, Ch. J., delivering the by the elementary writers on the opinion. change introduced by the covenants 2 As to the allowance of interest for title, none mention any change in see infra. THE COVENANT FOR SEIZIN. 61 This case was, in the ensuing year, followed in Pennsyl- vania by Bender v. Fromberger,' where a special verdict was found for the plaintiflf', subject to a reduction if the Court should be of opinion that the plaintiff" was not enti- tled to recover the value of the improvements made by him after his purchase. It seems to have been strongly urged on behalf of the plaintiff,^ that the measure of damages on all covenants was the amount of loss actually sustained, and that the reason why in a warrantia chartce the recovery was confined to the original value of the land, was because in real actions no damages were recovered. But it was held by the Court, that in the latter case, the value at the time of the voucher might have been recovered without recovering damages, as appeared from the case of Ballet v. Ballet,^ where it was held that in a warrantia chartce, if there were new buildings of which also warranty was demanded, the defendant must take care to come in and answer the voucher to warranty only for so much as was at the time of making the deed, otherwise the plaintiff" would recover according to the value at the time of bringing the action. The true rea- son, therefore, appeared to be, that the intention of the parties was so understood that the warranty should be lim- ited to the value of the land at the time of executing the deed, and such was held to be also the rule upon the more modern covenant.* 1 4 Dallas, 436. 3 Godboldt's Rep. 152. 2 The arguments of counsel are * " It has been contended," con- not fully reported ; but the Court, in tinned Tilghman, Ch. J., who deliver- its opinion, noticed " the very well ed the opinion, " that the true meas- arranged and able argument of the ure of damages in all actions of cov- ino-enious young gentleman who be- enant is the loss actually sustained, gan," — the late Mr. Sergeant, — the But this rule is laid down too gener- commencement of whose professional ally. In an action of covenant for eminence dated from this case, as non-payment of money on a bond or Lord Eldon's from that of Ackroyd mortgage, no more than the principal V. Smithson ; see 7 Campbell's Lives and legal interest of the debt can be of the Chancellors, p. 71. recovered, although the plaintiff may 6 62 THE COVENANT FOR SEIZIN. But in the subsequent case, in New York, of Pitcher v. Livingston,^ the importance of the question was felt to be such that the whole matter was treated as res integra and carefully considered, the questions reserved being whether the plaintiff was entitled to recover interest on the consider- ation money, and whether he could recover damages for im- provements and for increased value of the land. As to the allowance of interest, it was held, that no doubt could be en- tertained as to the propriety of the decision in Staats v. Ten Eyck. It had been adopted in Pennsylvania and in Massa- have suflfered to a much greater amount by the default of payment. The rule contended for by the plain- tiff's counsel, in its utmost latitude, applied to covenants like the present, would in many instances produce ex- cessive mischief. Indeed, the coun- sel have, in some measure, given up this rule, by confessing that when buildings of magnificence are erected to gratify the luxury of the wealthy, it would be unreasonable to give damages to the extent of the loss ; but the ruinous consequences would not be less to many persons who have sold lands on which no other than useful buildings have been erected. The rise in the value of land, not only in towns ion the sea-coast, but in the interior part of the United States, is such that it can hardly be supposed any prudent man would undertake to answer the incalculable damages which might overwhelm his family under the construction con- tended for by the plaintiff. I have taken pains to ascertain the opinion of lawyers in this State, prior to the American Revolution ; and I think myself warranted in asserting, from the information I have received, that the prevailing opinion among the most eminent counsel was, that the standard of damages was the value of the land at the time of making the contract." The case of Staats v. Ten Eyck was referred to in the course of the argument, as also the cases of Liber v. Parsons, decided in the year 1785, and Guerard's Ex- ecutors II. Rivers, decided in 1792, (both reported in 1 Bay, (S. Car.) 19, 266, and both since overruled,) where the standard of damages was held_ to be the value at the time of eviction. These cases were said by Ch. J. Tilghman to have been de- cided in the hurry of a jury trial, and not founded on the mature de- liberation given by the New York Judges in Staats v. Ten 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 dis- tinction between the measure of dam- ages on these two covenants is still recognized in several of the States, though long since repudiated in South Carolina. See infra. Chap- ter vn. 1 4 Johnson, 1, decided in 1809. THE COVENANT FOR SEIZIN. 63 chusetts.^ As to the allowance for improvements, the com- mon law was unquestioned. If land be better after feoff- ment, by buildings or otherwise, he who receives in value receives as the land was worth at the time of feoffment, and no more.^ It was never designed by the introduction of covenants to establish any other value of damages. The rule of the civil law left the damages to an arbitrary and undefined discretion, and destroyed anything like a fixed rule. Whatever expectations of rise in value the purchaser may have had were confined to him alone, and could not have entered as an ingredient into the bargain. It was the land and its price at the time of sale which the parties had in view, and to that subject the operation of the contract ought to be confined. The damages were therefore held to be measured by the consideration-money.^ The authority of these, the leading cases upon this subject, has never in substance been departed from, and decisions to the same effect will be found in nearly every State in the Union where the covenant for seizin is employed.* It must, 1 See Marston v. Hobbs, 2 Mass. with which the other members of the 433. Court concurred. 2 Year Book, 30 Ed. III. 14 b; 4 Some of the cases are Marston v. 19 Hen. VI. 46 a. See also 47 Hobbs, 2 Mass. 433 ; Caswell b. Wen- Ed. ni. 32, where it is said: "On dell, .4 Id. 108; Smith v. Strong, 14 voucher, if special matter be shown Pick. 128 ; Stubbs u. Page, 2 Greenl. by the vouchee, viz : that the land at 3 76 ; , Willson u. Willson, 5 Foster, the time of the feoifment was worth (N. Hamp.) 234 ; Mitchell v. Hazen, only £100, and now at the time of 4 Conn. 495; Sterling v. Peet, 14 the voucher is worth £200 by the in- Id. 234; Whiting «. Nissly, 1 Har- dustry of the feoffee, the tenant shall ris, (13 Penn. State R.) 855; Tapley recover only the value as it was at v. Lebeaum, 1 Missouri, 550 ; Mar- the time of sale ; for if the act of the tin v. Long, 3 Id. 391; Wilson v. feoffee has meliorated the land, this Forbes, 2 Dev. (N. Car.) 30 ; Logan shall not prejudice the feoffer in his v. Moulder, 1 Pike, 323 ; Bacchus v. warranty." McCoy, 3 Ohio, 211 ; Clark v. Parr, » A dissenting opinion was given 14 Id. 121; Cummins v. Kennedy, in. this case by Spencer, J., but it 3 Litt. (Ken.) 118 ; Cox's Heirs v. yields in force of argument to those Strode's Heirs, 2 Bibb, (Ken.) 277 ; of Kent, Ch. J. and Van Ness, J., Swafford v. Whipple, 3 G. Greene, 64? THE COVENANT FOR SEIZIN. however, be noticed that the rule in question must be ap- plied in its generality only to the covenant for seizin and of right to convey. On the covenants for quiet enjoyment and of warranty, a different standard prevails in many of the States, the damages being assessed by the value of the land at the time of eviction.-' It may be remarked that although the cases which have been thus referred to are all based upon an absence of fraud on the part of the vendor, yet it seems to be at least doubtful whether, in an action upon the covenant, fraud can be taken advantage of by the purchaser to increase his damages. Although it was remarked^ in Pitcher v. Livingston that " if any imposition is practised by the grantor by the fraud- ulent suppression of truth or suggestion of falsehood in relation to his title, the grantee may have an action on the case in the nature of a writ of deceit, and in such action he (Iowa,) 264. Nichols v. Walter, 8 Mass. 243, was a very strong case ; the plaintiflf had received a covenant for seizin from the defendant's testa- tor in a conveyance of property in New Hampshire, the consideration for which was $18.67. The plaintiflf sold the property for $113.33, with covenant of warranty, on which he was sued by his grantee, who had been evicted from the possession, and then recovered $655.49, being the value of the land at the time of eviction, this being the New Hamp- shire measure of damages on the cov- enant of warranty. Notwithstand- ing these circumstances, the plaintiff was limited in his recovery to the amount which he had himself paid for the property. The rapid increase of improve- ments in a new country has led to the passage, in some of the States, of statutes known as " the occupying claimant law," by which, in some cases, the paramount owner is obliged to pay to the occupying claimant the value of all permanent and lasting improvements, unless the latter should refuse, on demand, to pay to the for- mer the value of the land without the improvements. See statutes of Ohio, (ed. of 1841,) 607; Hart v. Baylor, 1 Harden, (Ken.) 528; Cox V. Strode, 2 Bibb, (Ken.) 278. This is the familiar rule in equity when a party lawfully in possession under a defective title, has made permanent improvements, and the true owner, if he come into equity to obtain his estate, is compelled to allow for such improvements ; 2 Story's Eq. § 799, 1239. ' See Chapter VII. 2 By Van Ness, J. THE COVENANT FOR SEIZIN. 63 would recover to the full extent of loss,"^ and although it was also said in Bender v. Fromberger, that " if the seller make use of any fraud, concealment, or artifice, to mislead the purchaser in examining the title, the case is dif- ferent, he will be answerable for all losses which may en- sue," yet it would be difficult to conceive how, in the action on the covenant, the jury would be allowed to increase the damages beyond the extent of the consideration-money,^ as the distinction between such an action, and one in the nature of a writ of deceit is an obvious one. In analogy to the ancient warranty, the value of the land at the time of its conveyance forms the basis of the measure of damages, and the consideration named in the deed is deemed to be prima facie the best evidence of this value, since such was the agreement of the parties at the time, as thus expressed by themselves.^ Where, however, no such consideration appears, the value of the land must be ascertained from other evidence.* But as the consideration is thus deemed to be prima facie evidence, it becomes important to know how far evidence is admissible, either on the part of the plaintiff or the defendant, to show that the consideration of the pur- chase was actually greater or less than thus expressed. Whatever may be the unwillingness manifested by the Eng- lish cases® to sanction the introduction of any evidence in- 1 Harg. & But. notes to Co. Litt. Smith v. Strong, U Pick. 128; Tap- 384 a, tit. Warranty; 1 Fonb. Eq. ley v. Lebeaum's Executors, 1 Mis- 366; Com. Dig. 236, A. souri, 550; Cummins v. Kennedy, 3 2 King V. Pyle, 8 Serg. & Rawle, Litt. (Ken.) 118 ; Wilson v. Forbes, 166, was not an action on a covenant 2 Devereux, (N. Car.) 30. for title, but a defence to payment of * Smith w. Strong, 14 Pick. 128; the purchase-money of land which Byrnes v. Rich, 6 Gray, (Mass.) 519. had been sold with fraudulent repre- See infra. sentations as to its quantity. See Lee 5 Some of the later of these are t;. Dean, 3 Whart. 316. Rowntree v. Jacob, 2 Taunt. 141; 3 Marston v. Hobbs, 2 Mass. 433 ; Sampson v. Corke, 5 Barn. & Aid. 6* 66 THE COVENANT FOR SEIZIN. consistent with any part of a statement in a deed, such re- luctance seems to have been much overcome in this coun- try, and it is well settled by American authority that al- though (apart from all question of fraud) evidence to ex- plain or vary the consideration is inadmissible if introduced either directly or indirectly to defeat the conveyance (as by showing it void, because not founded on a valuable consideration,)^ yet that for any purpose short of affecting the title, the consideration clause is not only no conclu- sive evidence that the money was paid, but is only prima facie evidence of the amount,^ which may, by parol proof, 606 ; Baker .-. Dewey, 1 Barn. & Cress. 704. 1 As in Wilt v. Franklin, 1 Binney, 502 ; Farrington v. Barr, 36 N.Hamp. 89 ; Hurn v. Soper, 6 Harr. & Johns. (Md.) 276; Betts v. Union Bank, 1 Har. & Gill, (Md.) 1 75 ; Clagget I). Hall, 9 Gill & Johns. (Md.) 91 ; Cole V. Alberts, 1 Gill, (Md.) 423 ; ElysviUe Man. Co. v. Okisko Co. 1 Maryland Ch. Deois. 392 ; Hender- son V. Henderson, 13 Missouri, 152. In the case last cited, it was held that evidence was not admissible in an action brought by a son against his father's executors on a covenant against incumbrances contained in a deed given by the latter to the for- mer, to show that the consideration therein named was not paid, but that the deed was executed for a certain purpose, on the fulfilment of which the title was to have been reconveyed. But to carry the rule to this extent would, obviously, be to shut out evi- dence of fraud, and in Parke v. Chadwick, 8 Watts & Serg. 96, the law was held to be otherwise, upon facts very similar to those in Hender- son V. Henderson. 2 Bullard v. Briggs, 7 Pick. 533 ; Wade V. Merwin, 11 Id. 288; Clapp V. Tirrell, 20 Pick. 247 ; McCrea v. Purmort, 16 Wend. 460; Burbanks. Gould, 15 Maine, 118; Meeker v. Meeker, 16 Connect. 388; Beach V. Packard, 10 Vermont, 96 ; Bing- ham V. Weiderwax, 1 Comstock, (N. Y.) 509 ; Watson v. Blaine, 12 Serg. & Rawl^ 131 ; Bolton v. Johns, 5 Barr, (Pa.) 145 ; Higdon v. Thomsis, 1 Harr. & Gill, (Md.) 139 ; Wolfe V. Hauver, 1 Gill, (Md.) 84 ; Duval w. Bibb, 4 Hen. & Munford, (Va.) 113 ; Harvey r. Alexander, 1 Rand. (Va.) 219 ; Wilson v. Shelton, 9 Leigh, (Va.) 342 ; Curry v. Lyles, 2 Hill, (S. Car.) 404; Jones u. Ward, 10 Yeager, (Tenn.) 166 ; Garret v. Stu- art, 1 McCord, (S. Car.) 514 ; GuUey V. Grubbs, 1 J. J. Marsh. (Ken.) 388 ; Hartley v. McAnulty, 4 Yeates, (Pa.) 95 ; Hayden v. Mentzer, 10 Serg. & Rawie, 329 ; Dexter w. Manley, 4 Cush. (Mass.) 26 ; Jack v. Dougherty, 3 Watts, (Pa.) 158, where the lan- guage of Parker, Ch. J., in Bullard v. Briggs, is approvingly quoted ; Mon- ahan v. Colgin, 4 Wattj, 436 ; Straw- bridge V. Cartledge, 7 Watts & Serg. (Pa.) 399. THE COVENANT FOR SEIZIN. 67 be shown to be greater or less than that expressed in the deed.^ 1 In other words, that the only efifeot of the consideration-clause is to estop the grantor from alleg- ing that the deed was executed without consideration, and that for every other purpose it is open to ex- planation, since the origin and pur- pose of the acknowledgment in a deed was merely to prevent a result- ing trust to the grantor, the clause being merely formal or nominal, and not designed to fix conclusively the amount either paid or to be paid. Belden v. Seymour, 8 Conn. 312. In McCrea v. Purmort, where many au- thorities are collected and comment- ed on, Cowen, J., held the following language : " Whenever a right is vested or created or extinguished by contract or otherwise, and writing is employed for that purpose, parol evi- dence is inadmissible to alter or con- tradict the legal and common-sense construction of the instrument; but any writing which neither by con- tract, the operation of law, or other- wise, vests, or passes, or extinguishes any right, but is only used as evi- dence of a fact, and not as evidence of a contract or right, may be sus- ceptible of explanation by extrinsic circumstances or facts. Thus a deed, a wiU, or a covenant in writing, so far as they transfer or are intended to be the evidence of rights, cannot be contradicted or opposed in their legal construction by facts aliunde. But receipts and other writings which only acknowledge the existence of a simple fact, such as the payment of money, may be susceptible of explan- ation, and liable to contradiction by witnesses.'' So in Massachusetts the rule was thus broadly laid down by Parker, Ch. J., in BuUard v. Briggs, 7 Pick. 533 : " The consideration proposed to be proved is different from that expressed in the deed, and it is objected that the deed is conclu- sive upon this point ; but we think it has been reasonably settled that this matter is open to evidence. More or less than is expressed in a deed may be proved by parol evidence as the consideration ; and even a differ- ent consideration, if valuable, may be proved." There are some earlier cases, and even some dicta in later ones, which appear to lean the other way, (Scher- merhorn v. Hayden, 1 Johns. 139 ; Harris v. Parker, 3 Id. 508 ; Maigh- ley V. Hauer, 7 Id. 342 ; Steele v. Adams, 1 Greenl. 1 ; Clark v. Mc- Anulty, 3 Serg. & Kawle, 367,) but the weight of American authority has settled the principle as just stated. Bronson, J., in Greenvault v. Davis, 4 Hill, 643, seemed to be of opinion that when the deed contained no cov- enants but those for seizin or war- ranty, the consideration was inserted for the purpose of fixing the amount of damages in case of a loss of the estate ; " at least such is my present impression, though my brethren are inclined to a different conclusion. But it is not now necessary to decide the question." " I submit, however," says Mr. Sedgwick, in quoting this passage, " that any distinction as to the purpose for which the parol proof is admitted cannot be maintained. If good for one end, it must be good as to all. If a fact be established, all its legitimate results must follow. 68 THE COVENANT FOR SEIZIN. As a consequence of this, it has been held that in an action on the covenant for seizin, evidence is admissible on the part of the plaintiflf, to show the actual consideration to be greater than that expressed in the deed, for the purpose of increasing the damages ; ^ and on the other hand equally admissible on the part of the defendant to show the consid- eration less, for the purpose of diminishing them.^ So, it has been held admissible for the defendant to show, in reduction of damages, that the part to which there was no title was included in the deed by mistake, and that no con- sideration was paid for it,^ though it is at the same time admitted that such evidence is admissible solely in mitiga- tion of damages, and not for the purpose of negativing a breach of the covenant ; * and where, in a very recent case, whether as to rights or remedies ; and in the sister States of the Union it seems to be generally held that parol proof is admissible as to the quantum of consideration paid." Sedgwick on the Measure of Dam- ages, 178. These remarks must be taken subject to the qualification above referred to, that such evidence is inadmissible if it goes to destroy the efficacy of the deed as a convey- ance. 1 Belden v. Seymour, 8 Connect. 304 ; Dexter u. Manley, 4 Cush. (Mass.) 26. 2 Morse v. Shattuck, 4 N. Hamp. 229 ; Harlow v. Thomas, 15 Pick. 70 ; Bingham v. Weiderwax, 1 Corn- stock, (N. Y.) 514 ; Swafford v. Whipple, 3 G. Greene, (Iowa,) 267 ; Martin u. Gordon, 24 Georgia, 535; Cox V. Henry, 8 Casey, (32 Penn. State R.) .19 ; isfoore v. McKee, 5 Smedes & Marshall, (Miss.) 438. In Yelton u. Hawkins, 2 J. J. Marshall, (Ken.) 2, it seems to have been thought that where a consideration had been by mistake erroneously in- serted as £66 instead of £43, evi- dence would not have been admissi- ble to prove this as a defence at law, but that relief could be had in equity. In Coger v. McGee, 2 Bibb, (Ken.) 321, equity interfered to reform a conveyance which contained a clause of special warranty, by admitting evidence that the grantee, at the time of its execution, objected to such a covenant, but yielded upon being assured by the draftsman and others that it meant an agreement to refund the consideration-money and interest, which was rather a novel view to have taken of the peculiarity of a special or limited covenant 3 Leland v. Stone, 16 Mass. 463; Barnes v. Learned, 5 N. Hamp. 264 ; Nutting V. Herbert, 35 N. Hamp. 127. 4 Nutting V. Herbert, 35 N. Hamp. 264. " The testimony could not be received to contradict or vary the deed by showing that the house and land owned and occupied by Merrill THE COVENANT FOR SEIZIN. 69 the defendant ofiered to prove that the plaintiff agreed to take the premises subject to a certain mortgage, which formed the whole consideration of the conveyance, this evidence was held to have been properly rejected.^ In cases where there is no consideration named in the deed, the measure of damages must be obtained from other evidence as to the value of the land ; ^ and where, as must were not intended or understood to be included in the conveyance, for the purpose and with the result of negativing any breach of the cove- nants of seizin and good right to convey, for which, in part at least, they seem to have been offered. But they were admissible on the question of damages. . . What- ever evidence therefore tended to show the consideration actually paid for the premises before granted to MerriU, or to show that no consider- ation was paid for them, for the rea- son that it was known and under- stood by the parties that they were not to pass by the conveyance, was competent and admissible on the question of damages although inad- missible upon the issue raised by the plea of omnia performant. If the jury should find that nothing was paid for the Merrill place, although it is clearly included within the deed, but that both parties knew and un- derstood it to have been previously sold, that in fact, it was included in the deed by mistake or through in- advertence, the plaintiff would be entitled to nominal damages only.'' Per Fowler, J. ' Eastabrook v. Smith, 6 Gray, (Mass.) 578. "If, as the defendant- offered to prove at the trial, the plaintiff ' agreed to take the prem- ises subject to said mortgage,' then that agreement should have appeared in some way in the deed or in some other written instrument. It was as easy to except the claim on the outstanding mortgage from the cove- nant of warranty as from the cove- nant against incumbrances, if such was the understanding of the parties. But nothing is clearer than that the parol evidence which was offered to control the covenant in the deed, was inadmissible." Per Metcalf, J. The point that parol evidence is in- admissible to prove that a certain incumbrance not expressly excepted from the operation of the covenants, was agreed to be so considered by the parties at the time, was also decided in Townsend v. Weld, 8 Mass. 146 ; Porter v. Noyes, 2 Greenleaf, (Me.) 22 ; Donnell v. Thompson, 1 Fair- field, (Me.) 177; CoUingwood v. Ir- win, 3 Watts, (Pa.) 309 ; Suydamv. Jones, 10 Wendell, (N. Y.) 184. , See infra, Chapter IV., on the covenant against incumbrances. 2 Smith V. Strong, 14 Pickering, 128. It will be remembered that the remedy upon the ancient war- ranty was the recovery of another feud of equal value, and it was in analogy to this that when a pecuni- ary recompense was substituted, the consideration named in the deed was taken to be prima facie evidence of the value of the land to the pur- chaser. 70 THE COVENANT FOR SEIZIN. often be the case, the consideration does not move directly from the grantee to the grantor, but the conveyance of the land is the result of a negotiation in which a third party is concerned, the real consideration which moved from the grantee — that which he actually parted with in order to acquire the title of the grantor — must be sought from all the circumstances of the case, and the damages measured accordingly.^ ' An excellent illustration of this Tvill be found in Byrnes v. Rich, 5 Gray, (Mass.) 518. " The rule of damages," said Shaw, Ch. J., who de- livered the opinion of the Court, " is perfectly well settled in this Com- monwealth ; it is the amount of the consideration actually paid by the grantee to the grantor with interest from the time of the payment. We say paid by the grantee to the grant- or, which is the most common case. But there may be anomalous cases, especially where it is not a direct ne- gotiation between the parties to the deed ; but where in a negotiation between two, there is a stipulation by one with the other, upon a cer- tain consideration, to execute a deed and convey certain land to a third person, and a deed is given accord- ingly. Such appears by the evi- dence to have been the present case. The plaintiff agreed to receive of one Leighton, a certain lot of land in Melrose, in full satisfaction and discharge of a debt ; Leighton then agreed with the defendant to pur- chase of him the same land, and then requested the defendant to make the deed direct to the plaintiff, with warranty ; he executed it according- ly, upon a large nominal considera- tion expressed, and handed it to Leighton, who delivered it to the plaintiff in satisfaction of his debt. Then what was the actual considera- tion as between the plaintiff and de- fendant ? It is very clear that the consideration expressed in the deed is no criterion ; the actual considera- tion may be always inquired into by evidence aliunde. Nor is it the sum agreed to be paid to the defendant by Leighton ; to that the plaintiff was a stranger. Nor is it the nominal amount of the note which the plain- tiff agreed to surrender and release to Leighton as the consideration to be by him paid for the land. That may have been a security of little value ; no evidence of its value was given ; and besides to that part of the transaction, the defendant was a stranger. It seems therefore to be a case to which the oi-dinary general rule cannot apply, and which must be determined according to its par- ticular circumstances upon the gen- eral principle apphcable to breaches of contracts ; the party shall recover a sum in damages, which will be a compensation for his loss. The case is very similar in principle, and con- siderably so in its facts, to that of Smith V. Strong, 14 Pick. 128. It was there laid down that, in such case, the measure of damages is the consideration paid, with interest from the date of the deed, but if the con- THE COVENANT FOR SEIZIN. 71 So where the grantee, instead of abandoning his pur- chase, has elected to buy in the paramount title, his dama- ges are, within the limit of the original consideration be- tween his covenantor and himself, measured by the amount of the consideration which passed from him to the holder of such paramount title. Where such consideration has been the payment of a certain sum, the damages are limited to that amount ; ^ but where in a recent case the considera- tion was a certain sum of money and the assignment to the holder of the paramount title, of the right of action on the broken covenant for seizin, it was held that the damages must be measured by the original consideration-money be- tween the covenantor and covenantee, there being no evidence to show that without such assignment the outstanding title could ever have been purchased.^ sideration cannot be ascertained, the value of the land, at the time of the intended conveyance, with interest from the date of the deed, Tvill be the measure of damages. It appears to us, that this, rule will afford in- demnity in the present case. If the failure of title extended to the whole of the land, then the entire value of the land is to be the measure ; if to a part only, and the plaintiff does not tender a reconveyance of the part upon which the conveyance operated to give title to the gran- tee, then the value of the part, the title to which failed, with interest, will be taken as the measure of dam- ages.'' See the case of Lawless v. Collier, 19 Missouri, 480, referred to infra. 1 Spring V. Chase, 22 Maine, 562. Dimmick v. Lockwood, 10 Wendell, 142; Foote v. Burnet, 10 Ohio, 334 ; Cox V. Henry, 8 Casey, (32 Penn. State R.) 19. In Anderson v. Knox, 20 Alabama, 101, and Dickson v. Desire, 23 Missouri, 167, it was held that the burden of proof lay upon the plaintiff to show not only the amount paid, but that such payment was the reasonable value of the interest ac- quired ; and that to hold that it was reasonable from the bare fact of pay- ment was to assume as true the fact to be proved. It is, however, no bar to the plaintiff's recovery that he has refused to buy in the para- mount title, for where in Miller v. Halsey, 2 Green, (N. J.) 48, the defendant pleaded that before the plaintiff was evicted the owner of the paramount title had offered to release it for a moderate sum, which offer the plaintiff refused, the Court held the plea bad. See as to this infra. 2 Lawless u. Collier, 19 Missouri, 480. Collier had for the considera- ri THE COVENANT FOR SEIZIN, It will hence be seen that the rule that the measure of damages upon a breach of the covenant for seizin is the tion of $2,668 sold certain land to Gamble with a covenant for seizin. Gamble subsequently conveyed this title to Mills and afterwards discov- ered a paramount title in the heirs of Stoddard which was then held by one Lawless and which he purchased for the sum of $1,000 and the as- signment to Lawless of his {Gam- ble's) right of action against Collier. By means of such purchase. Gam- ble was enabled to perfect the title which he had conveyed to Mills, and suit was then brought against CoUier upon this covenant for seizin in the name of Gamble to the use of Law- less. The Court below held that the measure of damages was the sum ' paid by Gamble to Lawless for the estate he thus acquired with inter est, but this instruction was reversed on writ of error. " Under the pecu- liar circumstances of this case," said Scott, J., who delivered the opin- ion, " what is the measure of dama- ges ? Can it be said that the pur- chase money paid by Gamble to Lawless is the just measure ? Was it by the payment of the sum of $1,000 only, that Gamble was enabled to secure the title or possession of his vendee, and thereby prevent a re- course against him on his covenant ? Such an assertion is not warranted by the facts. We cannot say that Lawless, in making a sale of his land, did not regard the covenants of Col- lier as worth the full sum which they were given to secure. He did not convey to Gamble the identical land that Gamble had conveyed to Mills. His conveyance of itself did operate but partially to secure Gamble, and thereby destroy his recourse against Collier for his purchase-money. It was by acts of Gamble, subsequent to Lawless' conveyance, that his vendee's title was perfected. What right had Gamble then to adopt a course of conduct which would have impaired the recourse of Lawless' trustee on the covenants which had been assigned to him for the benefit of Virginia Lawless. In so doing he would have injured the plaintiff, and have destroyed a part of the consideration he had given to Law- less for his interest in the Stoddard claim. Would not Gamble then have been liable to Virginia Law- less for the destruction of the right which he had assigned for her bene- fit. This is the consequence flowing from holding that the $1,000 paid by Gamble to Lawless should be the measure of damages in this action. This would be unjust to Gamble. It would be placing him in the attitude of a wrong doer to the plaintiff, whilst performing an act dictated by considerations of justice to himself and to those to whom he was under obligations to indemnify. Is it not more just, that Collier should refund the money he has received from Gamble, the consideration of which has entirely failed, than that Gamble should be placed in the condition of enriching himself at the expense of another ? No one can say that, without the assignment of the cove- nants in Collier's deeds, Gamble ever would have been enabled to obtain Lawless' interest in the Stoddard THE COVENANT FOR SEIZIN. 73 consideration-money, with interest, must in many cases be applied only relatively to the question of increased value of the land ; in other words the consideration-money, with in- terest, is the extent to which damages can, under any cir- cumstances, be recovered upon this covenant. A question of importance arises in cases where the fail- ure of title has caused a technical breach of the covenant for seizin, while its consequences have not yet visited upon the purchaser any loss of the land. Under these circum- stances, it 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 the land for whose loss they were intended as an equiva- lent.^ Thus, if the possession of the purchaser has remained claim. We know not how those covenants were estimated. No rule is known by which their value can be reduced below the sums they were given to secure." It should be ob- served that where in the above opinion the Court speak of the as- signment by Gamble of the covenants in Collier's deeds, it is meant the as- signment of the right of action upon those covenants — of the right to use Gamble's name in a suit against Collier ; for the covenant for seizin, being held in America to be broken as soon as made, is of course incapa- ble of direct assignment. This will appear from the previous report of the case in 10 Missouri, (Gamble v. CoUier,) which should be read in connection with the above opinion. 1 It was remarked in Dane's Abridgment, (Vol. 4, p. 340,) " In respect to the amount of damages, 7 if the grantee has been turned out of, and lost the land, there is no question but that the said considera- tion and interest is the true amount ; but if he remains in possession of the land and has not been ousted or evicted, it is an important question, if he shall recover his said consid- eration money and interest, while he so retains the land." This is the difficulty which has been suggested as the cause of holding, in some of the Northern States, that the cove- nant for seizin is not broken at all if an actual seizin had passed to the purchaser. See supra, p. 23. But, as has been remarked, the doc- trine goes beyond the exigencies which may have given rise to it ; for the purchaser has then no remedy if an actual seizin has been transferred to him, even though he should after- wards lose the land. 74 THE COVENANT FOR SEIZIN. undisturbed until it has ripened, under the limitation acts, into a valid title, it has been held that although the covenant may have been technically broken, yet only nominal dama- ges can be recovered.^ Where, hovrever, the lapse of time has not been such as to have healed the defect of title, it would be at least ques- tionable whether, if only nominal damages were then al- lowed, another action could be sustained upon the same covenant, on a subsequent occasion, when the actual damage had happened.^ This would depend entirely upon the construction given to the covenant. If, as is generally held on this side of the 1 Wilson V. Forbes, 2 Devereux, (N. Car.) 30, approved in Cowan v. Silliman, 4 Id. 47; Garfield v. Wil- liams, 2 Vermont, 328, 329 ; Somer- ville V. Hamilton, 4 Wheaton, 229. 2 The general principles of tlie law of estoppel, as applied to judg- ments, were clearly stated by Lord Ellenborough in Outram v. More- wood, 3 East, 346 ; and see Church V. Leavenworth, 4 Day, (Conn.) 274; Ryan D. Atwater, Id. 431; Canaan V. Turnpike Co., 1 Connect. 1. In Markham v. Middleton, 2 Strange, 1259, the defendant had suffered judgment to go by default, but when the plaintiff went before the jury of inquiry for damages, he failed in his proof, and the damages were assessed at one penny. Under the circum- stances of the case, the Court or- dered a new writ of inquiry on pay- ment of costs ; but as Lord Kenyon remarked of this case, in Seddon v. Tutor, 6 Term, 609, in another ac- tion the plaintiff would have been barred by that verdict, if it had stood; and the same remark was made by Park, J., in Godson v. Smith, 2 J. B. Moore, 162. The point seems to have directly arisen in Maine, in Donnell v. Thompson, 1 Fairfield, (Me.) 174, where Mellen, Ch. J., remarked : " The action on the covenant of freedom from incum- brance was prematurely brought, and nothing but nominal damages were recovered. Still it is admitted that the judgment in that action would be a good bar to a second action on the same covenant, for the same breach." It was, however, decided in that case that the plaintiff was en- titled, under the circumstances, to re- cover upon his covenant of warranty , after events had happened which would entitle him to actual daoaages ; and the decision was based upon the . different character of the two cove- nants. The plaintiff's proper course, under circumstances where he per- ceives that his action must result in nominal damages, is to discontinue or suffer a nonsuit, which will not, of course, affect his right to a subse- quent recovery ; Harris v. Newell, 8 Mass. 263. THE COVENANT FOR SEIZIN. 75 Atlantic, the covenant for seizin is to be considered as broken, if at all, as soon as it is made,^ and its breach, therefore, " single, entire and perfect in the first instance," it follows that there can be but one action maintained upon it, a recovery in which, even for nominal damages, can be pleaded in bar of any subsequent action. Where, however, as in England, the covenant is treated as a continuing one, a recovery might, it is conceived, be had upon a different assignment of the breach, as often as the damage was sus- tained by the purchaser.^ If, therefore, in a case where the purchaser still retains the possession and yet thinks proper to sue on a covenant for seizin, it is to be considered as settled that a recovery of but nominal damages at that time will be a bar to any fu- ture action brought when the loss of the land may occur, it 1 As to this doctrine see infra. Chapter VIII., on the extent to which covenants for title run with the land ; see also note to p. 21. 2 Thus, in Halsey v. Reed, 9 Paige's Ch. E. 446, one who purchased land subject to a mortgage, by a clause in the deed assumed as a part of the consideration the payment of the principal and interest due on it. On this covenant the vendor sued and recovered but nominal damages, as no evidence was given of his having been compelled to pay anything on the mortgage since the sale. He afterwards was compelled to pay in- terest on it, and having again sought to render the estate of his vendor liable, it was objected that the for- mer judgment was an estoppel. The Chancellor held that if the agreement had been intended as an absolute and unconditional promise to pay to the vendor the principal and interest on the mortgage, so as to enable the latter to sue and recover upon that promise in his own name, even al- though he had not been compelled or required to pay anything thereon to the holders of the mortgage, then the whole contract was merged in the judgment upon that contract, although the damages had been but nomi- nal. But if, as the Chancellor held, the true construction of the agree- ment was, that the "purchaser should assume the payment of the mortgage to the then holders, it was a mere contract of indemnity, on which the vendor could recover nothing till he had himself been compelled to pay something on the mortgage, and that he could recover as often as he should be compelled to make pay- ment on that account. See also Kanelagh v. Hayes, 1 Vernon, 189, and the cases cited infra, in Chapter IV. 76 THE COVENANT FOR SEIZIN. would seem to follow that if, on the one hand, the damages are to be measured by tlie consideration-money, some pro- vision should be made by which, on their payment by the covenantor, the estate which he sold should be, such as it is, revested in him.^ There would seem to be little doubt, on general principles, that equity would' restrain the covenantee, who had thus recovered back the consideration-money, from setting up, as against his covenantor, that title which, by his action on the covenant, he had asserted to be defective,^ and would proba- bly decree a reconveyance by him ; ^ and it has been sug- gested that the recovery of damages upon the covenant for seizin will, of itself, operate at law to revest the title in the covenantor.* It has, moreover, been decided in two 3 A. K. 1 " As we understand the law," said Hutchinson, Ch. J., in CatHn v. Hurlburt, 3 Vermont, 409, " it is de- ficient in guarding the rights of the grantor in a case that may arise. The grantor may have honestly pur- chased the premises and taken pos- session ; after his sale his grantee may have taken possession. The first grant proves defective, but he in whom is the legal title does not in- terfere. These possessions continued will soon form a good title. If there is a recovery on the covenant for seizin, these possessions should go for the benefit of him of whom the re- covery is had. This presents a fit subject for legislation. A statute might provide . . . that the re- covery and collection should revest all right and possession in the grant- or from whom this recovery and col- lection is had. This would do jus- tice in all cases that should come within it." 2 Bank of Utica u. Mersereau, 3 Barbour's Ch. (N. Y.) 571. 3 M'Kinney v. Watts, Marsh. (Ken.) 268. * Parker i;. Brown, 15 N. Hamp. 188. " If the grantee," said Parker, Ch. J., in delivering the opinion of the Court, " recovers damages for the breach of the covenants of seizin, on the ground that the grantor had no title whatever, the operation of it must be to estop the grantee from setting up the deed afterwards, as a conveyance of the land, against the grantor. We see not why the grantor may not again enter, if he chooses, as against the grantee. A recovery in trespass or trover, with satisfac- tion, vests the property in the party against whom the damages are as- sessed. We are not aware of any- thing in the nature of the feudal in- vestiture, or in the principles which regulate the title to land at the pres- ent time, that should require a differ- ent rule in relation to real estate. The record of the recovery will fur- nish as good an estoppel as that which arises from a disclaimer. Ham- THE COVENANT FOR SEIZIN. 77 cases in Massachusetts, that a conveyance made by a cove- nantee who had recovered back his consideration-money for a breach of the covenant for seizin, passed no title whatever to the purchaser ; decisions which must necessarily have proceeded upon the ground that the title had, by the recovery of the damages, become revested in the cove- nantor.^ ilton V. Elliott, 4 N. Hamp. 782. The defendants may re-enter if they think proper, and will hold, under their former possessions, against all persons who cannot show a better right." So in the very recent case of Johnson v. Simpson, 36 N. Hamp. 96, where judgment had already passed against the defendant and the only question was of damages, the Court seemed to be of opinion that had not the defendant been de- faulted he would not have been sub- jected to any damages, (on the ground that the deed had conveyed a sufficient title to the plaintiff,) and then said, " It may be a question whether the plaintiff by taking judgment for damages, may not endanger his title to the prem- ises." 1 Porter v. Hill, 9 Mass. 36 ; Stin- son V. Sumner, Id. 150. "It would certainly be manifestly against the principles of justice," said the Court in the latter case, " that a grantee should recover either his purchase- money or the value of the land, against the grantor, upon an alleged breach of covenant that nothing passed by the deed, and that he should yet be considered the owner of the land, under the very deed which he had alleged to be inopera- tive. It has lately been decided (Porter v. Hill,) that one who has 7* recovered judgment for damages for a breach of the covenants in his deed, upon an allegation that the grantor was not seized and had no right to sell, shall not set up his deed against the grantor or any one claim- ing under him, in an action for the land ; but that a judgment for the recovery of damages for the breach of such covenants shall avail against such deed, when pleaded by a party having a right to plead such judg- ment. This case depends on the same principle." Such a result seems, too, to have been the opinion of Kent, Ch. J., in Morris v. Phelps, 5 Johns. 55, and has been cited ar- guendo in Pitch V. Baldwin, 17 Johnson, 164, and in the very recent case of Blanohard v. Ellis, 1 Gray, (Mass.) 202, the Court said, " The question arises, how will the defend- ants, the grantors, be protected ? Will they not still be estopped to deny the title of the plaintiff if he should bring his suit of entry for the land ? The answer is, that the judg- ment in this suit will be a perfect bar to the plaintiff and those claim- ing under him. Porter v. Hill, 9 Mass. 34." It would seem, however, that a mere recovery should not by itself be allowed to have such an effect, unaccompanied by any evi- dence of satisfaction ; Foss v. Stick- ney, 5 Greenleaf, 392. 78 THE COVENANT FOR SEIZIN. If, however, it is to be considered as at all doubtful whether, by the recovery of the consideration-money, the estate would, by mere operation of law, revert to him from whom the damages had been recovered, the Court might, in the exercise of its discretion, stay the execution,^ or reserve the actual entry of the judgment until a re- conveyance were made to him. It would, perhaps, be a matter of prudence for the purchaser to offer such a recon- veyance before, or at the time of the trial,'^ although it would be no bar to his action that he had not done so.^ 1 In cases where the deed has, in addition to the covenant for seizin on which suit has been brought, also con- tained covenants for quiet enjoyment or of warranty, as to which there had as yet been no breach, Courts have ordered stay of execution upon the judgment on the former cove- nant until the plaintiff should have executed to the defendant a quit- claim deed' of the premises or a re- lease of the latter covenants. Catlin V. Hurlbut, 3 Vermont, 409 ; Blake V. Burnham, 3 Williams, (Verm.) 437. 2 Alexander v. Schriebner, 13 Mis- souri, 275 ; 2 Sugd. on Vendors, 358. In the recent rival treatise on Ven- dors and Purchasers, however, the author says, " Sir E. Sugden seems to consider that where the title is defective within the covenant, the purchaser, before eviction, may offer to reconvey the estate and claim the entire purchase-money ; but no au- thority is cited for this proposition, which appears to be untenable ; the extent of the damnification being the diflerence between what the cove- nantee has, and what he ought to have." Dart on Vendors,(2d ed.) 416. In the first edition, however, the criticism was thus expressed : " But no authority is cited for this proposi- tion ; at any rate if an action were brought before eviction, unaccompa- nied by an offer to reconvey, it seems that the entire value could not be recovered." Dart on Vendors, (1st ed.) 374. 3 Bender v. Fromberger, 4 Dallas, 437, note ; Ives v. Miles, 5 Watts, 329 ; Lot v. Thomas, Pennington, (N. J.) 299 ; Lawless v. Collier's Exrs., 19 Missouri, 485. Bottorf v. Smith, 7 Indiana, 673, is not at va- riance with this position. It was an action for the purchase-money of land conveyed with a covenant for seizin, and the defendant in his answer (un- der the new code) averred that the grantor was not seized of any good title in fee simple, and that the con- veyance was of no value. The plaintiff objected that the grantor might have been seized of a lesser estate and that there was no offer to reconvey, which objections the Court held to be well taken, " because if the plaintiff receives no purchase- money, he would be entitled to a reconveyance of whatever estate he THE COVENANT FOR SEIZIN. 79 There is, moreover, an exception to the principle that the effect of recovering damages upon the broken covenant is to revest the title in the covenantor, arising in cases where the covenantee has bought in the outstanding title for an amount exceeding the original consideration paid -by him to the covenantor. For in such cases it has already been might have conveyed." Apart from this, it is well settled that in an ac- tion for the purchase-money, mere absence of title is no defence to its payment ; see infra, Chapter XIII., on the purchaser's right to detain the purchase-money after the execu- tion of the deed. In the first edition of this work it was said, " If nothing had been paid, and no pecuniary loss had been suf- fered, and the possession had not been disturbed, and the purchaser did not offer to reconvey, it is be- lieved that nominal damages only would in general be allowed. The technical rule, therefore, that the covenant for seizin is broken, if at all, at once and completely, is, as respects the damages, little more than a technical one ; " Kawle on Covenants for Title, (1st ed.) p. 83, (citing the case of Collier v. Gamble, 10 Missouri, 472, where it had been held that " the reasonable rule was to recover nominal damages only until the estate conveyed was de- feated, or the right to defeat it had been extinguished,") and this passage was cited in the recent case of Ober- "hizer ;;. McCoUister, 10 Indiana, 44, and held to be " obviously just." The treatise then went on to say : " Cases may of course occur in which although the purchaser may have paid nothing to buy in the para- mount title and may still be in pos- session, yet where the failure of title is so complete, and the loss so mor- ally certain to happen, that a Court might feel authorized in directing the jury to assess the damages by the consideration-money.'' Upon subse- quent consideration, the opinion was formed that the first passage above quoted did not correctly express the law, and it was omitted in the sec- ond edition. Since then the case in Missouri came up again, (Lawless V. Gamble, 19 Missouri, 480, see supra, p. 72,) where the second of the passages above quoted was re- ferred to, and the case decided ac- cordingly. It is believed that the text as now offered contains the true statement of the law, and that if the breach of the covenant has occurred, the plaintiff has a right to recover damages measured by the considera- tion money, the effect of whose re- ceipt will be, subject to the excep- tions hereafter to be noticed, to re- vest the title such as it is in the covenantor. It may be remarked of the case of Oberhizer v. McCollister above referred to, that the Supreme Court of Indiana seems to have adopted the doctrine held in Eng- land that the covenant for seizin is not broken as soon as made, but that the breach is " a continuing one " until actual damage suffered. See supra, p. 75, and infra. Chapter VIII. 80 THE COVENANT FOR SEIZIN. shown that the damages are never allowed to exceed such consideration, and if the effect of the recovery of damages were to vest the whole title in the covenantor, the covenantee would he a loser to the extent of the difference between the amount of the original consideration-money and the amount paid to purchase the paramount title. There is, however, a class of cases (whose consideration will he the subject of future inquiry), which hold that where a conveyance is made, containing a covenant of warranty, and the vendor afterwards acquires a title which is within the scope of that covenant, such after-acquired title immedi- ately enures to the purchaser or those claiming under him by the operation of the doctrine of estoppel. In a subse- quent chapter ^ it is attempted to be shown that the acquisi- tion, by the vendor, of such a subsequent title, should rather give the purchaser a right to come into equity for its con- veyance to him, and that the doctrine that it at once enures to him by estoppel is productive sometimes of hardship to himself, and often of hardship, under our registry acts, to subsequent purchasers from his vendor, without notice. The doctrine referred to seems, however, to have been firmly established in many of our States, and, as its conse- quence, it has been held that although the purchaser's cove- nant for seizin may be broken, yet if the vendor have sub- sequently acquired the outstanding title, which enures by estoppel to the purchaser by virtue of the covenant of warranty, these circumstances may be given in evidence in mitigation of damages, whose amount will then be but nominal.^ 1 See infray Chapter IX., on the infra, p. 81) ; Reese v. Smith, 12 operation of covenants for title by Missouri, 343. This rule has some- way of estoppel or rebutter. times been sought to be carried too '■i Baxter v. Bradbury, 20 Maine, far, and to entitle the defendant to a 260 ; (see the remarks on this case, verdict. Thus in McCarty v. Leg- THE COVENANT FOR SEIZIN. 81 Such a course of decision obviously fastens upon the purchaser the subsequently acquired title nolens volens, depriving him of the right of election whether to accept it, or to fall back upon his covenants (of course in the lat- ter case, restoring to the vendor the title he has already received from him) ; ^ in other vpords, it has virtually the same eifect as an injunction restraining him from proceed- ing at law upon the covenants.^ From this, it is an easy transition to hold that even al- though the after-acquired title may not, from peculiar cir- cumstances, absolutely pass from the vendor and enure to the purchaser under the operation of estoppel as thus applied, yet if the vendor, at any time before recovery and payment of damages upon the covenant, can procure the outstanding title and tender it to the purchaser, equity will compel him to receive it, and enjoin him from obtaining his damages.' gett, 3 Hill, (N. Y.) 134, the defend- ant having acquired title since the conveyance, it was ruled at the trial that this subsequently acquired title was a bar to the plaintifif's recovery on his covenant for seizin, and a verdict was therefore ordered for the defendant ; but it was held by the Supreme Court that however these facts might have been properly ad- missible in mitigation of damages, still that the purchaser had a right to recover at least nominal damages, since the covenant was technically broken at the time of suit brought. 1 See supra, p. 76. 2 Thus in Baxter v. Bradbury, 20 Maine, 262, it was argued for the plaintiff, that the title by estoppel could not enure to his benefit with- out his consent' — that he was not compelled to receive the title ; but the Court held that, " by taking a general covenant of warranty, he not only assented to, but secured and made available to himself all the legal consequences resulting from that covenant. Having therefore un- der his deed, before the commence- ment of the action, acquired the seizin which it was the object of both covenants to assure, he could be entitled to but nominal damages.'' 3 Thus in Reese v. Smith, 12 Mis- souri, 344, the purchaser who had re- ceived a conveyance with covenants for seizin, of good right to convey, against incumbrances, and of war- ranty, recovered after the death of his vendor a verdict for damages, measured by the consideration- money, against his widow, who was his devisee. The latter bought in the outstanding title, whose existence had caused the breach of the cove- nant for seizin, and tendered it to the purchaser, who refused to accept it, because his damages would be, ow- 82 THE COVENANT FOR SEIZIN. A contrary doctrine has, however, been enforced in New York, where it has been held upon great apparent sound- ing to the depreciation of the prop- erty, greater than the value of the land. (The after-acquired title did not, it should be observed, actually pass to the purchaser, because the Court held that the widow was not bound by the estoppel, she having been under coverture at the time of joining with the husband in the covenant.) A bill having been filed to enjoin the judgment and compel the purchaser to accept the after-ac- quired title, the Court below decreed accordingly, and this was affirmed on appeal to the Supreme Court. " It is a mistake to suppose," said Nap- ton, J., who delivered the opinion of that Court, " that the suit at law upon the covenant of seizin, is to be regarded as a rescission or disaffirm- ance of the contract by Reese. Where a vendee has not received a deed, and sues upon the contract by which he is entitled to one, for the recovery of his purchase-money, such suit is a disaffirmance of the contract, and it is in such cases that the au- thority of a court of equity to inter- fere is rarely exercised. But the suit at law in this case was upon a covenant in the conveyance, and a recovery in that suit would not pre- vent the covenantee from suing the next day upon any other cove- nant in the same deed. He is en- titled to the benefit of all the cove- nants, and although it may be that a court of law would not permit him, after he had recovered upon one covenant the whole purchase-money and interest, to get more than nomi- nal damages upon another, yet this will not affect his legal right to the benefits of all the covenants. " The bill of the complainant has two objects in view : 1st. To compel the defendant to receive a convey- ance ; and 2d. To prevent the de- fendant, after thus recovering the title, from collecting his judgment at law. " If the Court can compel the de- fendant to receive the title, it needs no argument to show that the defend- ant, after receiving the title, should not be permitted to enjoy the estate under an indefeasible title, and at the same time retain the purchase- money. Had the title been acquired by Smith in his lifetime, there is no doubt but that title would have pass- ed from Smith to his vendee, Reese, and that if this had taken place be- fore the trial of the action on the covenant, it would have restricted the plaintiff to nominal damages. It is said that a court of equity can- not compel a covenantee to accept performance in lieu of damages, after, the covenantee has elected to take the latter. But a court of equity in exercising such a power, would only be following the law, and if the covenantor acquires his title after the suit at law has terminated, what could prevent a court of equity from taking notice of what the silent operation of our statute of convey- ances would do without the interven- tion of any court ? Would a court of equity under such circumstances allow the covena'htee to pocket his damages and also retain the land ? And can it make any difference, in THE COVENANT FOR SEIZIN. 83 ness of principle, that the purchaser's right to damages, where the contract is thus executed, is one of which equity principle, that the after-acquired title has been through the personal repre- sentative, and not through the cove- nantor himself. It is the act of God alone which has produced this change in the situation of the parties. " The fact that this property has very much depreciated in value is the strongest circumstance in the case against the exercise of equitable interference. Had the contract been executory, it would, perhaps, taken in connection with the lapse of time, be conclusive against the bill. But it must be observed that in this case the question is not, whether the ven- dee shall be compelled to complete a contract and take a conveyance for land, which he agreed to take when land was worth much inore than it is now. The contract has been made and conveyance accepted, and pos- session taken and enjoyed without disturbance. The vendee, having his deed, with covenants of general warranty and seizin, and for fur- ther assurance, could undoubtedly compel the vendor to convey any subsequently acquired title to him. He may sue on the covenant of seizin and recover damages, but, if he prefers, he may still resort to his covenant for further assurance or general warranty. The remedy is then reciprocal. Had the property risen in value the vendee could un- questionably have forced the title from the vendor, had the vendor acquired any subsequent to his conveyance. " The case of Cotton v. Ward, 3 Monroe, 312, is not unlike the pres- ent, and is a decisive expression of opinion, on the part of the Kentucky Court of Appeals, in favor of the ex- ercise of such a power by a court of chancery. Cotton had conveyed the title to Ward and put him in posses- sion, and having obtained a judg- ment against him for a part of the consideration. Ward enjoined it for alleged defects in the title. Pending the injunction, Ward brought his suit at law for a breach of the covenant of seizin, and recovered damages. Cotton filed a cross-bill to enjoin this judgment, and being able to exhibit at the hearing, a perfect title, Ward's injunction was dissolved, and Cotton's perpetuated, whereby Ward was compelled to take the title, and give up his judgment for damages. " As to the idea that a court of equity will never interfere after the vendee has exercised his privilege of electing damages at law, this, we have seen, is not so. Even in exec- utory contracts, the authorities are numerous where the vendee has been compelled to give up damages recovered upon a rescission of the contract in a suit at law, and accept performance in lieu thereof This is usually done, and indeed always done, where time is not of the es- sence of the contract, and the lapse of time has not arisen from any de- fault of the vendor, and the situation and value of the property has not materially changed. And if this will be done in executory contracts, there is much more reason why the power should be exercised where the contract has been executed." From this judgment, however, one of the three member* of the Court dissented. " The defendant," said M4> THE COVENANT FOR SEIZIN. has no right to deprive him. Thus in Tucker v. Clarke,^ a purchaser having brought suit on his covenant, refused to accept the outstanding title which his vendors had acquired since the conveyance, and had tendered to him, together with the costs of his suit. The vendors having filed a bill to compel him to accept this title, it was dismissed by Sand- ford, Vice-Chan., who said : " The complainants do not ask the Court to compel a specific performance of an open agreement. They ask to compel the defendant to give up his claims under a deed executed seven years before the bill was filed. The executed contract was, that the complainants were seized of the lots, and if they were not, that they he, " having recovered a judgment at law for a breach of the covenant of seizin, the regularity or propriety of those proceedings cannot be re- vised by a bill in equity. If the damages recovered are greater than the party was entitled to, that alone is no ground for relief. There are no circumstances , stated in the bill, which, in my opinion, are sufficient to warrant the interference of a court, of equity. If relief is granted in this case, then in every case of the recovery of damages for a breach of the covenant of seizin, the vendor at his option may procure a title or pay the damages, according as the property has fallen or risen in value.'' In the case of Cotton v. Ward, moreover, on which the judgment in the above case seems to have been based, it should be observed that the circumstances were peculiar ; the purchaser having himself first come into equity, and prayed for the very decree which the Court afterwards gave to him. This is carefully stated in the decision,' in which the Chief first appealed to the Chancellor, ask- ing either that the contract should be rescinded, or that Cotton should be compelled to make further assurance ; and notwithstanding he had, pend- ing his suit in chancery, recovered judgment at law, he still continued the suit until it was finally heard. In the mean time. Cotton had appealed to the same tribunal, and asked that Ward might be compelled to accept the further assurance which Ward, in his bin, had asked that Cotton should be compelled to make. Thus by the concurrent act of both par- ties, the Court was put in the pos- session of the cause, and required to exert its jurisdiction ; and whatever room there might be to doubt, as to the relief which ought to be granted in a case where Cotton alone was the com- plainant, in the actual attitude in which this case is presented, there certainly can be no doubt that the Court should decree a specific per- formance by compelling Cotton to make, and Ward to accept of further assurance." Justice says : " Ward had himself i 2 Sandford's Ch. R. (N. Y.) 92. THE COVENANT FOR SEIZIN. 85 should repay the consideration-money. This is sought to be reconsidered and turned into a contract by which, if it should ever turn out that they were not seized, they might either repay the consideration or procure a good title to be conveyed. It would have been a little more plausible if there were a semblance of mutuality about it, so that the de- fendants might have coerced them to procure a good title on discovering the defect. But there is no pretence that the defendant had any such equity. The complainants' ground amounts to this : if the lots had become worth two or three times the price which the defendant paid for them, then they could set up the outstanding title, deprive the defend- ant of his speculation, and throw him upon the covenants in his deed, which would restore to him the consideration paid. If, on the other hand, the lots should depreciate very much, the complainants would procure the outstanding title for him, and retain the price which he paid. There is no equity or fairness in this, and the Court cannot grant the relief prayed by the bill, without first making such a contract for the parties ; a contract which they never did make, and I presume never would have made, if any failure of title had been supposed probable when the conveyance was executed." The same principle has been recognized in another recent case in the same State.^ It seems impossible to controvert the soundness of this 1 Bingham v. Weiderwax, 1 Com- tioned in the aforesaid articles of" stock, 513. The facts were these: agreement," covenanting that they one Van Buren agreed with a cor- were the true and lawful owners in poration to purchase of them a tract right of the corporation, and were- of land for $850 in cash, subject to seized of a perfect estate in fee sim- two mortgages amounting together to pie, and had good right to convey. $3,000. On the appointed day, the This deed was inoperative to pass the President and certain of the Dlrec- title of the corporation, which was tors executed a deed ■ for the prem- afterwards dissolved. Van Buren. ises, " in consideration of $3,850, and went into possession, but not paying: subject to the two mortgages men- the mortgages, they were foreclosed. 86 THE COVENANT FOR SEIZIN. reasoning, and in Massachusetts, where the doctrine of estop- pel already referred to has been carried to its greatest extent, in 1843 and sold, when Lis adminis- trators sued the grantors on their covenant for seizin. The latter filed a bill for a perpetual injunction of this suit, on the ground that at the time of the conveyance, all the par- ties understood that it was sufficient to pass the title, and that the prem- ises had been sold by reason of the mere neglect of Van Buren to pay the mortgages. A demurrer to the . bill was overruled by the Vice-Chan- cellor, but the Court of Appeals re- versed this decision, and Jewett, Ch. J., in delivering the opinion of the Court, said : " The bill concedes that the title to the lands was not con- veyed to Van Buren, although he, as well as his grantors, supposed it was, by the deed executed to him. The complainants and the adminstrator of Van Buren have since discov- ered that Van Buren's grantors were never seized of any estate in the lands ; that the turnpike corporation, at the time of executing the deed, was seized of these lands, and so con- tinued, until its dissolution in 1840. How then can it be said that Van Buren lost the land or the title thereto (which he never had), by neglecting to pay the mortgage ? If he had paid it, it would not have invested him or his grantors with the title. Neither lost the land, or title to it, by the foreclosure and sale. Pay- ment of the mortgage by Van Buren in his lifetime, or by his administra- tor after his death, could have had no other effect than to increase the amount of damages which he or his administrator would be entitled to recover of his grantors for the breach of their covenant of seizen contained in their deed to him. Van Buren's right of action for the breach of that covenant was perfect the instant the deed was e.xecuted. Hamilton v. Wilson, 4 Johns. 72; McCarty v. Leggett, 3 Hill, 134. It did not arise nor depend in any respect upon the foreclosure of the mortgage and sale under it. Nor did the foreclosure and sale in the least afi'ect the com- plainant's rights or liabilities. If Van Buren had paid the mortgages, and then he, or his administrator after his death, had brought an action for the breach of the covenant of seizin, it would not have been a good ground in equity for relief against their cove- nant, that he could have compelled the corporation before its dissolution to convey the title to him. He would have the right to rely on his covenant, and take his remedy by action upon it. Van Buren's grantors agreed with him that they were seized of the land, and it was their business to see that their covenant in that respect was kept, when they executed the deed. Equity may compel parties to exe- cute their agreements, but has no power to make agreements for them, or to substitute one for another. And, besides, it appears from the bill that the corporation even did not lose the land or its title by the foreclosure and sale under the mortgages. It had lost its title nearly or quite three years before, in 1840, by its dissolu- tion. At that time, and for that cause, the title reverted back to its original grantor or his heii-s, there THE COVENANT FOR SEIZIN. 87 it has been very recently held that a grantor has no right thus to fasten upon his purchaser an after-acquired title. "Supposing it to be well settled," said the Court, "that if a new title come to the grantor before the eviction of his grantee it would enure to the grantee, and not deciding, be- cause the case does not require it, whether the grantee even after eviction might elect to take such new title and the grantor be estopped to deny it, we place the decision of this case on this precise ground, that where a deed of land has been made with covenants of warranty, and the grantee has been totally evicted from the premises by a title paramount, the grantor cannot after such entire eviction of the grantee, purchase the title paramount, and compel the grantee to take the same against his will, either in satisfaction of the covenant against incumbrances or in mitigation of damages for the breach of it."^ being no provision in its charter or in any other statute to avert that con- sequence upon its dissolution. An- gell & Ames on Corp. 128, 129 ; 2 Kent's Com. 305. " At all events, the bill shows the dissolution of the corporation at the time mentioned, without showing that the title to their lands was saved in such manner as that Van Buren, or his representatives, could 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 the holders of the moutgages were bound to receive, or would have re- ceived payment of the mortgages, or either of them, prior to the time of the dissolution of the corporation, or prior to the time of the death of Van Buren ; or that he at any time knew or had notice that he could compel the corporation, or any other person, to convey to him the title to said land ; or even that he knew or was informed that his grantors were not seized when they executed the deed. Therefore it seems to me that there is no ground upon which to sustain this bill, founded upon the neglect of Van Buren to pay the mortgages, or either of them." 1 Blanchard v. Ellis, 1 Gray, (Mass.) 199. Of course the same reasoning applies to the covenant for seizin. " We do not seek," said Thomas, J., who delivered the opinion, " for a better illustration of the soundness of this principle than is furnished by the facts of this case. The land, for which the consideration stated in the deed was $5,520, was under attachment in a suit in which judgment had been recovered for more than fifty thou- 88 THE COVENANT FOR SEIZIN. It is well settled that while upon a total breach of this covenant a purchaser may, as a general rule, recover the sand dollars ; the entire tract, of which one quarter had been conveyed to the plaintiff, was afterwards levied upon, seizin given to the creditor, and the plaintiff wholly evicted. He had no estate or interest left. The covenant against incumbrances be- ing personal, and not running with the land, he had nothing which could pass by deed. He could not redeem his undivided quarter, without a re- demption of the entire estate. He could not, for a period of ten years, enter upon the land, without com- mitting a trespass. The defendants admit the existence of the title para- mount and the eviction of the plain- tiff, but contend, after the eviction has continued ten years, that they as grantors may avail themselves of this rule of estoppel, force the grantee to take the estate, however changed the situation of his own affairs or the con- dition of the land. So that the equit- able rule of estoppel which forbids the grantor to deny that he had the estate which he had assumed to grant, and the truth of his own covenant — a rule established for the protection of the grantee and to be applied only to effect justice and prevent wrong — is converted into a right of election in the grantor, upon a breach of his covenant to pay back the con- sideration money, or by indirection to reconvey the estate. We say an election by the grantor, for it is clear that the grantee cannot compel the grantor to buy in the paramount title, but must rely solely upon his cove- nants. It is equally clear that, if the estate, during the eviction, should greatly increase in value, the grantor would not be likely to purchase such paramount title, but would submit to an action on his covenants. So that, under any rule of damages suggested, the plaintiff would lose many of the advantages resulting from the owner- ship of land, including the increase of value by the application of his own labor or capital, or its rise in the market. There is neither mutuality or equity in such a rule. And we are satisfied, upon examination of the authorities, that no case will be found which carries the doctrine of estop- pel to the length claimed by the de- fendants, which in fact estops the grantee, and leaves a right of elec- tion in the grantor. The case of Baxter v. Bradbury, 20 Maine, 260, has been strongly pressed upon us as a decision of the very question at issue. If this were so, the question having reference to the title to land in that State, the decision on that ground, as well from our respect for that Court, would be entitled to the highest consideration, if, indeed, it were not conclusive. But though there are dicta in that case which state the doctrine very broadly, the case itself differs materially from the one at bar. That was an action for a breach of the covenant of seizin in a deed of warranty, with a mortgage back of the premises, of the SEime date to the grantor. The ground taken by the counsel of the defend- ant, and upon which the Court seem to have proceeded in their judgment, was, that there never had been any interruption of the possession of the THE COVENANT FOR SEIZIN. 89 whole consideration-money, so where there is a partial breach he may recover pro tanto. Thus in the early case of Gray v. Briscoe,^ one covenanted that he was seized of Blackacre in fee-simple, when in fact it was copyhold land, and the jury were directed to give damages according to the rate at which the county valued fee-simple more than copyhold land.^ So where in a case in New York,^ the grantors had a life estate in four sixths of the premises and a fee in the remainder, it was held in an action on the cove- nant for seizin that the damages should be measured by plaintiflf, and seeking to deduce from that case a rule for our guidance, this circumstance must be deemed most material, as for a breach of this cov- enant against incumbrances, nomi- nal damages only could be recovered, unless the plaintiff had been evicted by title paramount, or had actually discharged the incumbrance. The Court in the case of Baxter w. Brad- bury, refer to a statement of the result of the authorities by the late Chief Justice Parker in the case of Somes V. Skinner, 3 Pick. 52. An examination of the whole opinion in that case would lead us tg infer that this statement was not made without some misgiving and distrust. The precise question now under consider- ation was not before the Court, and what in that part of the case was decided was, that where a title has enured by estoppel, it will avail the grantee not Only against the grantor and his heirs, but strangers who usurp possession without right ; and under the facts of the case, and in the view in which it was applied, there is no occasion to reconsider the rule there stated." 1 Noy, 142. In the report of this case it has been erroneously printed, 8* " held the covenant was not broken ; " but the context sufficiently shows this to be a mistake. 2 In Wace v. Bickerton, (14 Jurist, 784, S. C. 19 Lond. Law Jour. 254, Chan.) one seized of a fee-simple estate worth £57 per annum and of an estate for life worth £190 per annum, conveyed them, on the marriage of his son, to trustees, and covenanted that they were together worth £200 a year, and that he was seized thereof in fee- simple, free from all incumbrances. Upon the death of the settlor, the only child of the marriage who was an infant filed a bill against the execu- tors of his grandfather, praying a de- claration that the estate of the latter was indebted to the trustees of the settlement in such a sum as would be sufficient to make up from its income the difference between the value of the fee-simple estate, viz: £57, and the annual sum of £200. But Vice- Chancellor Bruce held that he was entitled not only to the sum prayed for, but to such a sum as would produce the annual value of the estate held for life, viz: £190 per annum. 3 Guthrie v. Pugsley, 12 Johns. 126. 90 THE COVENANT FOR SEIZIN. deducting- the value of the hfe estate from four sixths of the purchase-money, and without interest, as there was no one to call upon the plaintiff" for the mesne profits. So where a tenant for life having conveyed with covenant for seizin in fee, the purchaser was held entitled to recover the con- sideration money, deducting therefrom the value of the life estate,^ and, for the same reason as in the case last cited, without interest. The principle adopted in these cases has been recognized and applied in many others.^ It naturally follows, that upon a failure of title in a spe- cific part of the subject of the sale, either party may, for the purpose of affecting the damages, produce evidence to show the relative value which that part bears to the whole, and this, as was said in Morris v. Phelps,^ operates with equal justice as to all the parties to a conveyance. " Suppose," said the Court, " a valuable stream of water, with expensive improvements upon it, with ten acres of adjoining barren land, was sold for ten thousand dollars, and it should after- wards appear that the title to the stream with the improve- ments 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 apportion- ment according to the number of acres lost, when the sole inducement to the purchase was defeated, and the whole value of the purchase had failed ] So on the other hand, if only the title to the nine barren acres failed, the vendor would feel the weight of extreme injustice, if he \vas ob- liged to refund nine tenths of the consideration-money. This 1 Tanner v. Livingston, 12 Wen- Y.) 416 ; Bryan v. Smallwood, 4 Har. dell, (N. Y.) 83 ; Lockwood v. Stur- & McHenry, (Md.) 483 ; Nyce's Ex'rs devant, 6 Connect. 373. o. Obertz, 17 Ohio, 76; Mills v. Cat- 2 Blanohard u. Hoxie, 34 Maine, lin, 22 Vermont, 98. In tins case it 376 ; Morrison v. M' Arthur, 43 Id. was held not to have been error to 567; Ela v. Card, 2 N. Hamp. 175; admit life assurance tables to show '.Hubbard v. Norton, 1 Connect. 435 ; the value of the life estate. Kickert v. Snyder, 9 Wendell, (N. 3 5 Johns. 56, per Kent, Ch. J. THE COVENANT FOR SEIZIN. 91 is not the rule of assessment. The law will apportion the damages to the measure of value between the land lost and the land preserved. This doctrine is laid down as an ele- mentary rule in Pothier's treatise on the contract of sale.^ He says that an eviction of part of the thing sold not only gives an action on the warranty, hut the purchaser will recover a proportion of the price paid, in a ratio to the amount of the part from which he was evicted; and that if the eviction be of an integral part of the estate sold, as for instance, of a meadow or vineyard belonging to the farm, the damages must be assessed according to a valuation of the price of the meadow or vineyard, and the proportion which it bears to the price of the whole estate. Nothing can be clearer than the equity of this rule," ^ and it has been frequently recognized and applied."^ 1 Traite du Contrat de Vente, No. 139, 142, 199. 2 " The same principle," continued the learned Judge, " is to be met with in the civil law. Bonilatis eslima- tionem faciendam, cum pars evincitur. And Ulpian puts and answers this question : Quid enim, si, quodfuit in agro pretiosissimum, lioc evictum est ; aut quod fuit in agro vilissimutn ? ^stimabitur loci qualitas, et sic erit regressus; Dig. 21, 2, 1. 1, 1. 13 and 1. 64, § 3. The recovery in value upon the warranty at common law, was regulated by the same rule. The capias ad valenliam was issued to take as much land of the warrantor as was equal to the value of the land lost. Cape de terra in ballica tua ad valen- tiam tantce terra quod B. clamat ut jus suum ; and if the lands of the warrantor lay in another county, dif- ferent from that in which the lands in controversy lay, then the lands in question were first appraised by a sheriff's inquest, and afterwards the writ went to the sheriff of the other county, to take lands of equal value, which value was specified in the writ. Bracton, 384, a, b. If the recovery in the present case had been of an undivided part of all the lands con- veyed by the deed, then the rule of apportionment of damages according to the relative value could not have been applied, and this distinction runs through the authorities on the subject. But the plaintiffs title failed only to an undivided part of a spe- cified tract, and remained good to another and larger tract conveyed by the same deed and included in the same consideration. The appor- tionment according to the relative value is therefore strictly and justly applicable." 3 Dickens v. Shepperd, 3 Murphey, (N. Car.) 526 ; Wallace v. Talbot, 1 92 THE COVENANT FOR SEIZIN. In this case of Morris v. Phelps, another question of some importance arose. It was urged for the plaintiff that if he were restricted from recovering' more than the consid- eration money, he ought not to recover less ; that he had a right to full damages for the whole land, and ought not to he compelled to accept a good title as to part, where there was no title to the other part,^ for the very part which was lost might have been the principal inducement to the pur- chase ; in other words, that the purchaser had a right, under such circumstances, to use the machinery of an action on the covenant for seizin as a means of rescinding the sale.^ But the Court held that in the first place the plaintifl' had never offered to rescind the sale, nor, if he had, did he conceive that it would have availed him in a court of law, since the contract was executed and part of the consider- ation fulfilled. But it was said that, apart from this, there was nothing in the case to authorize the plaintiff" to go for the whole consideration, because the title to part failed. That fact alone did not rescind the sale after the deed was McCord, (S. Car.) 466 ; Leland v. been contended, supposing that the Stone, 10 Mass. 463 ; Cornell v. Jack- plaintiff is entitled to recover for the son, 3 Gushing, (Mass.) 510 ; Griffin non-conveyance of the one acre one V. Reynold, 17 Howard, (U. S.) 611 ; hundred and forty-four perches, that Blanchard v. Hoxie, 34 Maine, 376 ; he ought only to recover back such Giles 0. Dugro, 1 Duer, (N. Y.) 331. proportion of the whole purchase- In Pennsj'lvania, this doctrine was, in money paid by him, as the one acre King !i. Pylc, 8 Serg. & Rawle, 166, one hundred and forty-four perches limited to a case where fraud had been bears to the whole quantity of land practised, Ch. J. Tilghman saying, "I paid for. This, however, even in a give no opinion whether, in case of case untainted with fraud, has neither of a. fair sale and in an. eviction of a reason nor authority to support it, as small part, the measure of damages is very clearly shown by Chief Jus- should be the average price agreed tioe Kent, in Morris v. Phelps, 5 to be paid for the whole tract. I will Johns. 56." See Nelson v. Matthews, only say that I do not consider that 2 Hon. & Munf (Va.) 164. point as settled." But in the sub- ' Farrer v. Nightingal, 2 Espi- soquent case of Lea v. Dean, 3 Whar- nasse, 639. ton, 331 , the Court said, " It has also 2 See Chapter XIII. THE COVENANT FOR SEIZIN. 93 delivered and the consideration paid, and the plaintiff was entitled to recover damages only in proportion to the extent of the defect of title.^ Interest upon the amount of the consideration-money is allowed to the plaintiff as part of his damages, in order to counterbalance the claim for mesne profits which the owner of the paramount title may recover.^ Every endeavor is, however, made by the Courts to limit the recovery of inter- est within the bounds of a recovery of the mesne profits by the true owner.® Thus if the statute of hmitations prevent a recovery of these for more than a certain number of years back, interest will be allowed for no longer time;^ and al- 1- " This is an old and ■well-settled rule of damages," said the Court ; " thus in the case of Beauchamp v. Damory, Year Book, 29 Ed. III. 4, it was held by Hill, J., that if one, be bound to warranty, he warrants the entirety, but he shall not render in value but for that which was lost. In 13 Ed. IV. 3, (and which case is cited in Bustard's case, 9 Coke, 60,) the same principle was admitted, and it was declared and agreed to by the Court, that in exchange, where a 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 recover only according to the value of the part lost. Though the condi- tion be entire and extends to all, yet it was said that the warranty upon the exchange might severally extend to part. So in the case of Gray v. Briscoe, Noy's Rep. 142, B. cove- nanted that he was seized of Black- acre in fee, whereas in truth it was copyhold land, in fee, according to the custom ; and the Court said that the jury should give damages accord- ing to the difference in value be- tween fee-simple land and copyhold land. There is then no law or rea- son why the plaintiff should recover more than one sixth of the consider- ation money and interest, for the two tracts mentioned in the first count, and five sixths of the consideration- money and interest for the tract men- tioned in the second count." 2 Staats u. Ten Eyck, 3 Caines, (N. y.) Ill ; Sumner v. Williams, 8 Mass. 222; Reese v. M'Q.uilkin, 7 In- diana, 452. 3 Guthrie v. Pugsley, 12 Johns. 126; Patterson v. Stewart, 6 V/atts & Serg. 528 ; Kyle's Administrator u. Fauntleroy's Administrator, 9 B. Monroe, (Ken.) 620; Williams v. Beeman, 2 Devereux, (N. Car.) 485 ; Rich V. Johnson, 1 Chandler, (Wise.) 20. * Caulkins v. Harris, 9 Johns. 324 ; 9* THE COVENANT FOR SEIZIN. though in a case in Massachusetts,-' it was denied that any- such Hmitation of the allowance of interest had ever been Bennet v. Jenkins, 13 Johns. 50 ; Ela V. Card, 2 N. Hamp. 178; Clark V. Parr, 14 Ohio, 118 ; Lawless V. Collier, 19 Missouri, 486. In Pat- terson V. Stewart, 6 Watts & Serg. 527, the statute of Kmitations does not appear to have been applied. The plaintiff' in that case had, in 1817, purchased a lot which was sub- ject to an incumbrance, under which it was sold in 1822. No possession was, however, taken by the sheriff-'s vendee till 1831. In an action on the covenant against incumbrances implied by the words " grant, bar- gain, and sell," and on the covenant of warranty, the plaintiff contend- ed that the former covenant being broken as soon as made, he was en- titled to interest from the year 1817 ; while the defendant urged that he should be responsible only from the year 1831, when possession was taken. The Court, however, prop- erly decided that neither of these positions were correct. " The in- cumbrance," said the Court below, whose opinion was affirmed on error, " did not devest the plaintiff of the possession or title to the property until final judgment was obtained, and the property levied on and sold by the sheriff. Previous to that time the damage was merely nominal ; at least, if there was any actual dam- age, it is not laid in the declaration nor proved. But when the sheriff's deed was made, the title was abso- lutely devested, and the damage no longer contingent. The plaintiff was not bound to incur the expense of an ejectment, and might justly aban- don all claim to the property. From that time then (1822), he is entitled to interest on his purchase-money." Apart from the non-application of the statute of limitations, this decis- ion is perfectly sound, and the stat- ute may not have been pleaded ; and in the recent case of Cox v. Henry, 8 Casey, 19, (32 Penn. State K.) this decision was cited as supporting the position that the statute of limita- tions protected the purchaser against the claim for mesne profits, except for the six years immediately before the commencement of the action, and it was held that interest upon the consideration-money was recov- erable to the extent of the mesne profits. The same principle was applied in the recent case of Kyle's Adminis- trator V. Fauntleroy's Administrator, 9 B. Monroe, (Ken.) 620, where the defendant's intestate had, in 1807, con- veyed land to which no title could be shown out of the Commonwealth, who had, in 1838, patented it to other parties. The plaintiff's intes- tate had been in possession since the date of his deed, and it was held that " he was not entitled to interest while he could not be disturbed in the use of the land, and as he was not liable to any one for rents or waste until the issuing of the patent." Interest was, therefore, only allowed him from the date of the patent. 1 Whiting V. Dewey, 15 Picker- ing, 428. THE COVENANT FOR SEIZIN. 95 sanctioned in that State, yet it was suggested by the Court and acquiesced in by counsel, that the equitable rule of dam- ages would be to allow the plaintiff to recover the purchase- money so far as there was no seizin, with interest, deducting the profits received by him for which he was not respon- sible to the other tenants in common.^ 1 In a recent case in Maine, Spring V. Chase, 22 Maine, 502, tlie plaintiff liad been obliged, about seventeen years after bis purchase, to buy in an outstanding paramount title, and the Court held that he was entitled to recover the amount paid by him to perfect the title, with interest from the time of this payment. In oppo- sition to the claim for interest, the defendant urged that during no time had the plaintiff actually received any rents or profits from the prem- ises ; but the Court said that whether the vendee turned his purchase to a profit or a loss was no concern of the vendor, since " if a person purchase real estate, it is to be presumed that be does so because its rents and pro- fits will be equivalent to the interest of the money he may be content to pay for it." This case, it will be ob- served, so far from impugning the rule already mentioned with respect to interest, which at first sight it might appear to do, is in strict ac- cordance with it, since the plaintiff was allowed no interest before the time when he bought in the out- standing title, because in so doing he left no one who could claim the mesne profits, he having purchased the whole title ; while he was allowed interest from that time, because that might be presumed equal to the rents and profits he had a right from thence to expect. In a late case in Missouri, however, these views were considered to be sub- ject to much qualification when ap- plied to unimproved land. " AVe can almost feel the inconvenience," said the Court, " of telling the vendor, when he is sued for the purchase- money he has received, that he shall pay interest, and yet be allowed noth- ing for the rents and profits the ven- dee has derived from the possession, for the reason that the vendor had no title and his vendee is liable over to the true owner. We know that, nine times in ten this liability over to the real owner is a mere bugbear. When improved lands are sold, the rent of the land and the interest of the money are supposed to counterpoise each other. In this State, many in- vest their money in unimproved lands, relying on the increasing value of the land as an equivalent for the interest of the money invested. Purchases may also be made, in which this latter inducement may be blended with a desire to obtain land but partially improved. In case, therefore, of unimproved land, it would be unjust to say, in this State, as has been said elsewhere, that, whether the vendee turned his pur- chase to a profit or a loss, was no concern of the vendor, since if a person purchase real estate, it is to be presumed that he does so because its rents will be equivalent to the 96 THE COVENANT FOR SEIZIN. It is evident, however, that so far as this allowance of interest is concerned, the plaintiff must recover from his covenantor a certain compensation for a loss which has not yet actually happened, except in the single case where the paramount owner has, prior to the suit upon the covenant, actually recovered the mesne profits from the covenantee. Mr. Sedgwick has remarked as to this, that " it may still be doubted whether interest should be allowed in any case where the property has been enjoyed by the grantee, unless interest of tlie money he may be contented to pay for it. " These considerations show the difEculty of prescribing any fixed rule in relation to the interest that is to be recovered in suits on covenants for seizin. When the possession ob- tained by the vendee, by reason of his purcliase, has been beneficial, and he has not been, and it can be seen with certainty that he will not be liable over to the real owner for the rents and profits, it would be unjust to allow him full interest on the pur- chase money. AVhere the possession has not been beneficial, and it may be inferred that it was contemplated by the parties that it would not bo so, justice requires that interest should be allowed from the time of the payment of the purchase-money." Lawless v. Collier, 19 Missoui-i, 486. In Anderton v. Arrowsmith, 2 Perry & Davison, 408, a vendor had, on the sale of a life estate, given a covenant for quiet enjoyment and a bond of indemnity with sure- ties against all costs and claims, and the plaintiffs having averred that they had been obliged to pay a prior annuity which had been charged upon the land and given the holder a right to enter for non-payment, claimed to receive back the amount thus paid with interest for some years ; it was left to the jury to say whether they had not been guilty of negligence in not proceeding against the sureties until after they had be- come insolvent, and the jury having found that they might have recov- ered fropn the sureties, the interest was not allowed, Denman, Ch. J., saying, " If promptly obtained from the surety and promptly repaid out of the defendant's estate, no interest might have become due at all, and we cannot say that would not have been the most gainful couree for the defendant." In the recent case of Blake u. Burnham, / 3 WiUiams, (Verm.) 437, it was held that in- terest was only recovei'able accord- ing to its legal rate, without regard to the amount of interest which the plaintiff had agreed to pay or the securities given by him for the pur- chase money ; and in Drew v. Towle, 10 Foster, (N. H.) 536, it was de- cided that interest could never be recovered by making rests at stated periods, but that simple interest alone was recoverable. THE COVENANT FOR SEIZIN. m he has actually been compelled to pay the mesne profits. In- terest is given to counterbalance the claim of the true owner for mesne profits, but even after eviction the loss of the mesue profits does not necessarily follow, as we have here- tofore seen the law does not give actual compensation for probable loss." ^ If, however, no allowance were at that time made for the interest, it would be at least doubtful whether upon a subsequent recovery of the mesne profits the covenantee could sustain a subsequent action to recover interest.^ 1 Sedgwick on the Measure of Damages, (2d ed.) p. 169, note. 2 See supra, p. 75. Upon this sub- ject of the recovery of interest, the following remarks were made by Un- derwood, J., in Combs v. Tarlton's Administrator, 2 Dana, (Ken.) 467: — " Where the profits of the land in possession of the vendee, are of more value than the interest of the money enjoyed by the vendor, it is utterly unjust to allow the vendee to recover the purchase-money with its interest, and to hold the profits of the land. If the vendee is evicted by an ad- verse paramount claim, and becomes responsible to the e vie tor for the mesne profits, then he ought to re- cover interest from his vendor for as many years as he is or may be re- quired to account to the evictor for the profits. But where the vendee is not bound to account for the prof- its of the land to any one, and where, as in this case, the profits greatly ex- ceed the interest of the purchase- money, manifest injustice would re- sult from permitting the vendee to recover interest, and likewise to keep the profits. The principle upon which all contracts ought to be rescinded, is that the parties should be placed as nearly as possible in statu quo. If the^ contract between vendor and ven- dee is set aside by the Chancellor, he would never give interest to the ven- dee, and allow him also to keep the profits. On the contrary, he would say to the vendee, as you have en- joyed all you contracted for, and as the profits of the land are as valua- ble, or more so, than the interest on the - purchase-money, you shall not have both ; but if you require a res- toration of purchase-money and inter- est, you must restore, on your part; the land and its profits ; but, as hy. the contract, you and the vendor re- garded the land and purchase-money equivalent to each other, I (the Chan- cellor) will regard the use of each as of the same value, and take no ac- count between you for interest or profits. This doctrine — where the land yields a profit, or can be made- by such care, attention, and manage- ment as proprietors usually bestow,, to yield a profit equal to the interest on the purchase-money — is sustain-- ed by the clearest principles of recip- rocal justice. But where the land' yields no profit, and cannot be made- to yield any, without improving it by. the expenditure of money or labors. 98 THE COVENANT FOR SEIZIN. It not unfrequently happens that a vendee is reluctant to abandon his purchase to a paramount claimant without a struggle, and this unwillingness will, of course, increase in proportion as the value of the property has been enhanced while in his possession ; hence we must inquire how far a purchaser may, in his action of covenant against his ven- dor, include in his damages the expense to which he has been put in defending the title which he has received from the latter. The rule is well settled to this extent : that as it would or both, then there may be strong reasons for insisting, in case the con- tract be rescinded, that the purchase- money with its interest should be re- stored by the vendor. In such a case, the vendee generally regards the pros- pect of a rise or appreciation in the price of the land, as the equivalent or consideration which he receives for the interest on the purchase-money, and if he cannot, in consequence of the default of the vendor, get the land, being deprived of the contemplated rise which constituted the leading motive for the contract, and receiving no esplees, or profits, the land not being in a condition to yield any, justice would require the restoration of the purchase-money, with inter- est, upon a rescission of the contract. The cases first decided by this Court, were, in all probability, of this de- scription. " Whether the rules which would o'overn in chancery, can be applied with safety to a trial at law, has been a subject of much consideration with the Court. The rules of right ought to be the same in every tribunal, and should be so applied as to settle con- troversies with all practicable speed. To avoid the expense and delay of another suit would be desirable, if insuperable objections did not pre- sent themselves. There are, how- ever, too many questions growing out of the recission of a contract be- tween vendor and vendee put into possession, to allow them to be con- sidered and settled by the jury upon the trial of an action of covenant. The vendor may be entitled to a set- off for the profits of the land, for waste and damage ; and against these claims, the vendee may be entitled to an allowance for improvements. To settle such multifarious and compli- cated matters, the Chancellor is more competent to administer justice, than the common-law Judge aided by the hasty inquiry of a jury. We shall therefore leave the rule at law to stand as we found it, and as recog- nized by the case of Cox's Heirs v. Strode, 2 Bibb, 273. The vendee is entitled to his judgment at law for the amount of the purchase-money and interest, and then the vendor may resort to the Chancellor for a settlement of the rents, profits, waste, and improvements, and for such de- cree as equity requires.'' See ,Hart V. Baylor, Hardin, (Ken.) 399. THE COVENANT FOR SEIZIN. 99 be expecting too much of a purchaser to decide at his peril on the vahdity of a title set up in opposition to that which his vendor undertook to convey, the former should be allowed, by way of damages, the taxed costs of any action by which he has reasonably sought to maintain or defend that title.^ Thus in Smith v. Compton,^ upon a writ of inquiry of damages, the jury included the sum which the plaintiff had been obliged to pay, by way of compromise, to the party claiming under the superior title, and also the plaintiff's costs, as between attorney and client, of the ac- tion brought against him by that party .^ It was urged that as lo the former sum there should have been a notice to the covenantor, who might, perhaps, have settled the action upon better terms ; and that as to the latter, the plaintiff ought only to recover costs between party and party. But it was held that the only effect of want of notice, would be to let the covenantor in to show that the bargain was an improvident one, which could not be assumed without 1 It must not, however, be pre- Walker u.Hatton, 10 Mees. &Welsb. sumed from the class of cases estab- 249, and Smith v. Howell, 6 Excheq. lishing this rule, that they go further 730 ; S. C. 6 Eng. Law & Eq. K. than merely to sanction the recovery 493. The rule of those cases is, how- of costs in an action reasonably de- ever, obviously far from having a uni- fended in order to ascertain the true versal application ; Lewis v. Peake, 7 position of the title. On the contrary, Taunton, 153 ; Pennell v. Woodburn, it has been repeatedly and recently 7 Car. & Payne, 117; especially with held that " no person has a right to respect to the covenants for title. In inflame his own account against an- Smith v. Compton, cited in the text, other by incurring additional expense Park, J., remarked, " On the strength in the unrighteous resistance to an of the covenant in this case the cove- action which he cannot defend ; " per nantee was justified in acting as if he Lord Denman in Short v. Kalloway, had a good title. If he defended an 11 Adolph. & Ellis, 28; Gillett v. Hi- action, it was the consequence of your pon, 1 Moody & Malkin, 406 ; Drew covenant." V. Towle, 10 Poster, (N. H.) 537; 2 3 Barn. & Adol. 407. the case of Nealle v. WylUe, 3 Barn. 3 The difference between an Eng- & Cress. 533, which was thought to lish and an American bill of costs go too far in sanctioning a recovery will of course be remembered by the of such costs, has been overruled in student. 100 THE COVENANT FOR SEIZIN. proof ;^ and as to the costs, the plaintiff was not indemni- fied unless he received the anaount of the costs paid by him to his own attorney. The law as thus held has been re- peatedly applied on both sides of the Atlantic.^ 1 The same principle with respect to notice to the party bound by the covenant was distinctly recognized in Morris v. Rowan, 2 Harrison, (N. J.) 306, where the Court said that it did not find, after looking at all the au- thorities, that the question whether costs should be allowed as damages had ever been made to depend on the fact of notice by the covenantee to the covenantor of the suit by which the former was evicted. " If notice of the suit had been given to these de- fendants, and they had either declined to interfere, or had unsuccessfully aided the plaintiff in his defence, it must be admitted that they would not only have been liable for the costs, ' but would also have been concluded 'by the judgment of eviction. But suppose the defendant, conscious of the unsoundness of the title, had not only refused to defend the suit, but had given notice to the tenant that if he made any defence, he must do it at his own risk and expense ; would that have availed him anything ? I think not. It would place a grantee in hazardous circumstances, if upon such an intimation from his grantor, he must either defend at his own ex- pense or abandon the title, and look for compensation in damages under his covenants. On the contrary, I am of opinion that notwithstanding such notice from the covenantor, the grantee would have a right to recover from him the taxable costs he had incurred in honestly and fairly resist- ing the claim of title set up by the plaintiff in the ejectment." " If," added Ford, J., " the warrantor, on learning that his title was defective, should make an admission of the fact, and request the covenantee not to run him to costs by making a use- less defence, perhaps it might prove an exception to the general rule.'' In Swett V. Patrick, 3 Fairfield, (Me.) 10, it seems to have been thought by the Court that as the covenantor had been notified, the costs were therefore recoverable ; but the cases generally do "not recognize this distinction, and as it is well set- tled that the absence of notice does not preclude the recovery of dam- ages upon the covenant, but only in- creases the burden of proof on the covenantor (supra, ch. vii.), it would seem equally to follow that the ab- sence of notice should not preclude the recovery of costs. 2 Pomeroy v. Partington, 3 Term, 678 (by a note in that case, the costs of an ejectment seem to have been included as a matter of course) ; Sum- ner V. Williams, 8 Mass. 162 ; Tufts V. Adams, 8 Pickering, 550 (where the costs were incurred by the cove- nantor as plaintiff, in consequence of the representations of the cove- nantee) ; Harding v. Nelson, 27 Maine, 525 ; Haynes v. Stevens, 11 N. Hamp. 28; Loomis v. Bedel, 11 Id. 74 ; French v. Parish, 14 Id. 498 ; Kyle's Administrator v. Fauntleroy's Administrator, 9 B. Monroe, (Ken.) 622 ; Pitkin v. Leavitt, 13 Vermont, 379; Turner v. Goodrich, 26 Id. THE COVENANT FOR SEIZIN. 101 It has also been held in many cases, that in addition to these taxed costs, the plaintiff should be entitled to recover his counsel fees and other expenses. Thus in an early case in New York,^ it was held that in costs were included reasonable fees of counsel, as well as such costs as were taxable. So in a later case,^ where the plaintiff had been evicted under a judgment in an action which he had de- feuded, brought under the paramount title, it was said, " The taxed costs included in the record were certainly proper, if the record itself was properly admitted. The costs of the defence and of counsel fees, were also proper, if the plaintiff's declaration was sufficient to admit them." And such expenses have been held to be recoverable in many other cases.^ In Leffingwell v. Elliot,* however, the recovery of coun- sel fees was denied, while other expenses were liberally allowed. There had been no adverse suit brought, but the covenantors had yielded to a paramount right of entry and afterwards purchased the adverse title. On the question of damages, the Court held " that if the plaintiffs extinguished 709 ; Staats v. Ten Eyck, 3 Caines, ciple as to the point of notice is the (N. Y.) 115, (where, however, it was same as in suing on the covenant for said that the costs of defending the seizin. action for mesne profits were not l Staats v. Ten Eyck, 3 Caiaes, recoverable, as the covenantor was (N. Y.) 115. not bound to defend that suit; see 2 Eickert v. Snyder, 9 Wend. 423. styjra, p. 100) ; Pitcher K. Livingston, 3 Sumner v. Williams, 8 Mass. 4 Johns. 1 ; Waldo u. Long, 7 Id. 1 74 ; 162; Swett v. Patrick, 12 Maine, Burnet U.Jenkins, 13 Id. 51; Rickert 10; Hardy v. Nelson, 27 Id. 525; V. Snyder, 9 Wend. 423 ; Stewart v. Gennings v. Norton, 35 Id. 314 ; Drake, 4 Halst. 141 ; Holmes v. Sin- Haynes v. Stevens, 11 N. Hamp. nickson, 3 Green, (N.J.) 113; Cox's 28; Kingsberry v. Smith, '13 Id. Heirs D.Strode's Heirs, 2 Bibb, (Ken.) 125; Drew u. Towle, 10 Foster, 273; Barnett D.Montgomery, 6 Mon- (N. H.) 538; Pitkin v. Leavitt, 13 roe, (Ken.) 332. Some of these cases Vermont, 379 ; Keeler k. Wood, 30 were actions upon the other covenants Id. 658. for title, and some on mere personal covenants of indemnity ; but the prin- 9* 10^ THE COVENANT FOR SEIZIN. the paramount title for a nominal sum, they were entitled to recover no more of the defendant. If they were put to trouble and expense in procuring the extinguishment, that was a proper ground of damages." The auditor to whom it was referred to estimate these, classified the plaintiff's claims under three heads : first (besides the amounts paid to extinguish the adverse title, with interest from their pay- ment), charges for the plaintiff's time while thus employed, for horses, carriages, board, and counsel fees, with interest on each from the service of the writ in the action on the covenant; secondly, similar charges subsequent to the ser- vice of the writ, not, however, including counsel fees ; and thirdly, expenses of preparing for trial, attendance at court, and counsel fees since the commencement of the suit. The Court, on the argument of exceptions to this report,^ held, that the plaintiffs were entitled to recover in full the sums reported in the first and second classes of claims, except the sums paid to counsel ; and that in the third class, the coun- sel fees should be disallowed, and the other charges placed " upon the same ground in that as in other actions, tres- pass, for example ; " and the fees of the auditor were allowed in the costs. So in a late case in Massachusetts ^ it was said that " the counsel fees cannot be allowed. These are expenses incurred by the party for his own satisfaction, and they vary so much with the character and distinction of the counsel, that it would be dangerous to impose such a charge upon an opponent, and the law measures the ex- penses incurred in the management of a suit by the taxa- ble costs." The same rule has been adopted in some other recent cases.^ 1 10 Pickering, 204. -which his purchaser had recovered 2 Reggio V. Braggiotti, 7 Gushing, damages in an action of which the 166. The action was for a breach of plaintiff had notified his vendor. warranty of quality of personal prop- See also Guild u. Guild, 2 Metcalf, erty which had been resold by the (Mass.) 233. plaintiff with a like covenant, upon 3 jgter v. Glenn, 9 Richardson's THE COVENANT FOR SEIZIN. 103 In New Jersey, it seems to have been held, on the au- thority of an expression of Chancellor Kent, in his Com- mentaries,^ to the effect that a covenantee " could recover the consideration-money with interest, and costs, and no more;" that counsel fees, other than those taxable in the hill of costs, were not recoverable ; ^ but the expression in question seems by the context to have referred to the rule as settled in most of the States, that upon none of the cov- enants for title could the damages be increased by reason of improvements or a rise in value of the land,^ and not to have referred to the question of counsel fees, or other ex- penses.* It must not, however, be supposed that the right to recover counsel fees expended by the purchaser in the action by which he has sought to maintain the title re- ceived from his vendor, can be so extended as to embrace Law R. (S. Car.) 380 ; Gragg v. Rich- ardson, 25 Georgia, 566. Whatever doubt might exist as to the proprietor of including in the damages recover- able upon the covenants for title such counsel fees as have been referred to, none can exist in the case of a cove- nant to indemnify and save harmless the covenantee from all loss, damage, expenses, &c. Robinson v. Bakewell, 1 Casey, (25 Penn. State R.) 426 ; Cox V. Henry, 8 Id. 21. Such cove- nants are sometimes found in instru- ments accompanying the deed of conveyance, (as in Robinson v. Bake- well,) and sometimes in the execu- tory articles of sale, in which latter case they have been held not to be merged or extinguished by the ac- ceptance of the deed. Cox v. Henry, supra ; Colvin v. Schell, 1 Grant's Cases, (Pa.) 226. 1 4 Commentaries, 477. 2 Holmes v. Sinnlckson, 3 Green, (N. J.) 313 ; in Morris v. Rowan, 2 Harrison, (N. J.) 306, cited supra, p. 100, this decision was referred to without dissent. 3 See as to this subject, supra, p. 58, and infra. Chapter VII. * In the recent case of Gadsden v. The Bank of Georgetown, 5 Rich- ardson's Law Rep. (S. Car.) 336, the plaintiff had an execution against a defendant, which the bank, a subse- quent execution-creditor, enjoined on giving a b6nd conditioned to save the plaintiff harmless from all dam- ages which might arise by reason of the injunction, which was subse- quently dissolved, and the plaintiff got his money. In a suit by him against the bank on this bond, it was held that he was not entitled to coun- sel fees, expenses, &c., incurred in the effort to dissolve the injunction. 104 THE COVENANT FOR SEIZIN. those incurred in suing the latter upon his covenants for title.^ 1 Even the right to recover costs in the latter case rests purely upon statutory enactment. It will be re- membered that until the statute of Gloucester (6 Ed. I. c. 1 ,) no costs whatever were allowed in any action. That statute provided that the de- mandant might recover against the tenant the costs of his writ pur- chased. These words, however re- stricted, were held to extend to all the legal costs of the suit, but not to the costs and expenses of the plain- tiff's travel and loss of time ; 2 Inst. 288. Since then, whenever damages are recovered in cases arising ex con- tractu, in which is no element of fraud, wilful negligence or malice, they have been limited to the plain- tiff's direct pecuniary loss and the legal costs of the suit brought to en- force his, demand. In some cases of tort, the rule is more enlarged, and fluctuates with the tide of conflicting cases. See Sedgwick on Damages, ch. 18 ; Cushing's Domat, 769 ; Good V. Mylin, 8 Barr, (Pa.) 56. THE COVENANT FOR GOOD RIGHT TO CONVEY. 105 CHAPTER III. THE COVENANT FOR GOOD RIGHT TO CONVEY. This covenant is very generally said to be synonymous with that which has just been considered. But, as has been before remarked, although the existence of an estate in fee simple necessarily implies a power of transferring it, so that a covenant for good right to convey seems useless when preceded by a covenant that the vendor is seized of an indefeasible estate in fee simple, yet the converse of the proposition is by no means universally true ; the cases being numerous in which the subject of the purchase is transferred by virtue of a power, although the vendor may not be seized of an estate. Where such is the case, the covenant for seizin is omitted and in its place substituted a covenant that the power is a valid and subsisting one, and has not been exercised or extinguished.^ In English conveyancing it has been, until recently, quite a common practice to insert, in the same deed, both the covenant for seizin and for good right to convey.^ But in the most modern conveyances, 1 Sugden on Vendors, 510 ; Dart passing the wife's estate by suffering on Vendors, 259. a fine, to limit estates to such uses as 2 This practice may have arisen the purchaser should appoint, and for (though this is a mere suggestion), want of appointment, to himself in from the fact that it was usual in fee. Here the fee was, until appoint- England (before the statute of 3 & ment made, vested in the purchaser 4 Will. 4, c. 74, abolishing fines and and his heirs, as a qualified and de- recoveries,) for conveyancers, for the terminable fee, to yield, however, to purposes of barring dower and es- the estate which would arise and vest caping the expense and trouble of in the appointee by virtue of the 106 THE COVENANT FOR GOOD RIGHT TO CONVEY. the former covenant is more frequently omitted than in- serted,^ as the latter is quite practically sufficient, and the length of the instrument is now far less a prominent object than it formerly was. In some parts of this country there would appear to be an especial reason for the insertion of the covenant now un- der consideration. It has been remarked in the preceding chapter,^ that in many States the covenant for seizin is an- swered by the transfer to the purchaser of an actual though a tortious seizin, irrespective of the right by which the property is held ; and where the covenant for seizin is thus limited in its application to the mere transfer of the seizin, in its narrowest signification, there would seem every reason why a purchaser should protect himself by a covenant which refers exclusively to the right, or, as it is popularly called, the title. For although a covenant of warranty or for quiet enjoyment might protect him, when the subject of the pur- chase should be taken from him, yet there are many instances in which a recovery would be sanctioned upon the covenant for good right to convey, when it would be denied upon these other covenants. power. In such case, there would the law ; " that it had always sur- seem to be room for the operation of prised him, and was contrary to the both covenants. experience of practical conveyan- It was, however, held by Chief cers, who were in the constant habit Justice Eyre, in Goodill v. Brigham, of so limiting estates on their transfer 1 Bos. & Pull. 192, that a power was to a purchaser, for the purpose of inconsistent with an estate in fee- barring the dower of the wife of the simple, the latter being so high a na- purchaser when he in turn should ture as to merge and render void any wish to dispose of it, without the power which might be intended to troublesome and expensive process accompany it ; and this was adopted of levying a fine ; and the law has by Sir William Grant, when Master been so recognized in a number of of the Rolls, in the case of Maun- later decisions. drell V. Maundrell. But on the argu- l Hughes' Practice of Sales of Real ment of that case before Lord Eldon Property, Vol. 1, p. 411. (10 Vesey, 264), he said that the ^ See -page 20 et seq. case of Goodill v. Brigham " was not THE COVENANT FOR GOOD RIGHT TO CONA'EY. 107 But it is somewhat remarkable, that in the very case in which the covenant for good right to convey would thus seem not to be merely synonymous with the covenant for seizin, and thus superfluous, it should have been held to have no greater or other scope. The reason for this course of decision has, in the previous chapter,^ been attempted to be shown to have arisen from the covenants for seizin and for good right to convey being considered as assurances to the purchaser that the vendor had such a present seizin as would enable him, without violating the champerty acts, to transfer the estate, and, consequently, a good right to con- vey it under those acts. It has indeed been held, in an old case, that the latter covenant related to the capacity of the grantor to convey, so that where a husband and wife, seized in right of the wife, conveyed to a purchaser, with a cove- nant on the part of the husband that they had good right to assure the lands, the incapacity of the wife to convey by reason of her infancy, was held 'to be a manifest breach.^ But it is equally clear that it was considered also as relat- ing to the title ; and where the covenant is construed ac- cording to the natural interpretation of its words, it must be broken by the absence in the vendor of the right to the premises — the jus, as distinguished from the seizina? The form of the covenant is usually in these words : " That the said (grantor) now hath in himself good right, full power and absolute authority, to grant, convey and as- 1 Supra, p. 3 1 . covenant was not broken by an adver- 2 Nash V. Ashton, Skinner, 42 ; sary possession merely, but was bro- S. C, T. Jones, 195. ken only by a want of legal title in 3 Thus in Triplett v. Gill, 7 J. J. the grantor, such as he had a right to Marshall, (Ken.) 432, where the cov- sell and convey." It may, moreover, enants were of good right to convey, be remarked of this case, that, as the and of warranty, it was held that the champerty statute was not passed till former "imported only that the grant- after the execution of the deed, the or had a right to convey, and did not construction of the covenant did not imply that he had possession. Such a come within that referred to above. lOS THE COVENANT FOR GOOD RIGHT TO CONVEY. sure the said messuage, &c., with the appurtenances, unto and to the use of the said (purchaser), his heirs, appointees and assigns, according to the true intent and meaning of these presents." Much of what has been said in the preceding chapter as to the peculiarities of the covenant for seizin applies equally to that for right to convey. Both, according to the weight of American authority, are held to be broken as soon as made, and therefore incapable of being taken advantage of by an heir or an assignee.^ Both are governed by the same rules as to the pleadings ;^ and the measure of damages is the same as to both.^ 1 Chapman v. Holmes, 5 Halstead, Dunnica v. Sharp, 7 Missouri, 71 ; 40. See Chapter Vm. Willson v. WiUson, 5 Foster, (N. H.) 2 Jenkins, 305, pi. 79. 234. 3 Bickford v. Page, 2 Mass. 455 ; THE COVENANT AGAINST INCUMBRANCES. 109 CHAPTER IV. THE COVENANT AGAINST INCUMBRANCES. The difierence that exists between the covenants for title as expressed in England, and on this side of the At- lantic, is strikingly shown with respect to the covenant against incumbrances. There, it is almost invariably in- serted after the covenant for quiet enjoyment, to which it may be almost said to be a kind of supplement. After it has been set forth that the grantee shall quietly enjoy, &c., the conveyance goes on to say : " And that (that is, the peace- able enjoyment) freely, clearly and absolutely indemnified by the said (vendor) his heirs, executors or administrators, of, from and against all former and other estates, rights, titles, liens, charges and incumbrances whatsoever."^ 1 This covenant used to afford am- ord, debts to the King's majesty pie scope for the ingenuity of the or any of his predecessors, seques- draftsman in the insertion of the trations, estates, titles, troubles, liens, greatest number of words ; the ven- charges, and incumbrances whatso- dor being made to covenant against ever." Such was the form given " all and all manner of former and by Mr. Piatt, in his Treatise on other gifts, grants, feoffments, leases. Covenants, p. 330, published in mortgages, bargains, sales, jointures, 1829. Any apt words, however, dowers, right and title of dower, tending to show the meaning of the uses, trusts, wills, entails, annuities, party using them, will, in general, legacies, rents, arrears of rent, fines, be held sufficient and be interpreted issues, amerciaments, statutes, recog- most strongly against him. Thus a nizances, judgments, executions, ex- covenant that the defendant was tents, suits, decrees, debts of rec- seized of an indefeasible estate in 10 110 THE COVENANT AGAINST INCUMBRANCES. A sentence thus commencing with the words " and that free," &c., necessarily depends for its construction upon the preceding sentence or clause to which it is intended to relate, or of which it forms a part. When, therefore, this prior sentence consists of the covenant that the grantee " shall peaceably enjoy " the premises, (a covenant entirely prospective in its operation,_) it is obvious that the covenant against incumbrances, thus connected with it, must be equally prospective, and that its breach must therefore de- pend, not upon the mere fact of existing incumbrances at the time of the execution of the conveyance, but on the dis- turbance or damage which the incumbrance might thereafter cause.^ Such a distinction is of less consequence in England than in this country. There, the covenants for seizin and against incumbrances are capable of being taken advantage of by the heir, the devisee, or the assignee of the estate whose title they assure, in the same manner as the covenant for quiet enjoyment. Here, in nearly every State, the covenant for seizin, if broken at all, is held to be broken as soon as it' is made ; and although doubts have at times been ex- pressed as to whether this technical rule applied to the cov- enant against incumbrances, which, it has been said, partakes more of the character of a covenant of indemnity, yet the fee-simple, " without any manner of Van Slyck u. Kimball, 8 Johns. 153 ; condition to alter, charge, determine Jeter v. Glenn, 9 Richardson's Law or defeat the same,'' was held in B,. (S. Car.) 37 7 ; Carter u. Denman, Stannard v. Bldridge, 16 Johns. 256, 3 Zabriskie, (N. J.) 273. The dif- to be in substance and effect a cov- ference is obvious between a cov- enant against incumbrances. enant that an estate is free from all 1 This distinction as to the form of incumbrance and one that the gran- the covenant will be found noticed tee sliall enjoy it free from all incum- in Vane v. Lord Barnard, Gilbert's brance, as in the latter case the cov- Eq. K. 7, note; Gardiner v. Niles, enant is not even technically broken 16 Maine, 281 ; Nyce's Ex'r v. as long as the covenantor has sus- Obertz, 17 Ohio, 74; Grice v. Scar- tained no injury, borough, 2 Spears, (S. Car.) 652 ; THE COVENANT AGAINST INCUMBRANCES. Ill general current of American authority holds it to be, equally with the covenant for seizin, a covenant in presenti, and broken as soon as made.^ Hence, whenever introduced in this country, thus coupled with the covenant for quiet en- joyment, it may be taken out of this severity of rule, and being thus made prospective in its operation, its benefits may enure to the party in whose time the actual loss has liappened. But as, in America, the covenant against incumbrances almost always stands by itself as a separate and independent covenant, (generally expressed in the short form, " and that the premises are free and clear of all incumbrance,") it has been thought more proper to consider it next in order to the covenants for seizin and good right to convey, to which it is here more analogous than to those for quiet enjoyment or of warranty. When the covenant against incumbrances is not intended to be an unqualified or general one, that is, when it is lim- ited to the acts or omissions of the covenantor, it is on this side of the Atlantic generally expressed in the short form, that the premises are " free and clear of all incumbranoe done or suffered by the said " grantor. In England the language is more precise, and after the form heretofore given ^ is generally added, " made, created, occasioned, or suffered by the said (gran tor j, or any other person or per- sons whomsoever rightfully claiming under or in trust for him, or by or with his or their acts, deeds, default, privity or procurement."^ The usual and only covenant into which a fiduciary ven- dor can, in strictness, be compelled to enter, is that he has 1 See Chapter VIII. ceived certain constructions which 2 Supra, p. 109. are particularly referred to in the 3 These concluding words, " acts, next chapter, where they more prop- means, consent, default, privity and erly belong. procurement," have in England re- 11^ THE COVENANT AGAINST INCUMBRANCES. done no act to incumber the estate ;^ it is frequently called " the usual trustee covenant," and is generally thus ex- pressed: "that he the said (grantor) hath not at any time heretofore made, done, permitted or suffered, or been party or privy to any act, matter or thing whatsoever, where- with or by means whereof the premises hereby granted or any part or parcel thereof, now or at any time hereafter shall be impeached, charged or incumbered in title, estate or otherwise howsoever."^ The full form in which the covenant against incumbrances was formerly and to a certain extent is still expressed in England, necessarily precludes many questions which would otherwise arise as to its scope. There would be little difficulty on either side of the Atlantic in holding that most of the incumbrances enume- rated in the Enghsh form, (such as leases, mortgages, trusts, annuities, judgments, &c.) came within the covenant as generally expressed here, " that the said premises are free and clear of all incumbrance." By reason of this terseness of expression, however, doubts have here at times arisen as to what constitutes an incumbrance within the scope of such a covenant. In an old case in Massachusetts an incumbrance was de- fined to be " every right to or interest in the land to the dimi- nution of the value of the land, but consistent with the pass- ing of the fee by the conveyance ; "^ and this definition has been frequently and recently cited with approbation,^ and as a general rule must be deemed correct. 1 See infra, Chapter XI. 295. See 2 Sugden on Vendors, 2 The importance of the expres- 519. sion being " party or privy to," which 3 Prescott u. Trueman, 4 Mass. is not necessarily implied by the 630. words " permitted or sufTered," is ■• Mitchell j;. Warner, 5 Connect, exemplified by the case of Hobson 527 ; Carter v. Denman, 3 Zabriskie, V. Middleton, 6 Barn. & Cress. (N. J.) 273. THE COVENANT AGAINST INCUMBRANCES. lis Thus the covenant is obviously broken by the existence of prior . taxes,^ of a judgment, a mortgage, or any debt which is a lien upon the land.^ So where a testator devised to his daughter the right of living in part of a house, of which the whole was afterwards sold by the residuary de- visee, such paramount right was held to be a breach of the covenant against incumbrances made by the latter.^ So the covenant is broken by the existence of such easements as a paramount right to dam up and use the water of a stream running through the land conveyed,* or of a right 1 Long V. Moler, 5 Ohio. State E. 272 ; Mitchell v. Pillsbury, 5 Wis- consin, 410. Of course, taxes assessed after the execution of the deed are not within the covenant ; Hutchins V. Moody, 30 Vermont, 657 ; Jack- son V. Sassaman, 5 Casey, (29 Penn. State E.) 109 ; but if the lien of the taxes has attached before that time, the covenant is broken ; Long v. Moler, supra. In Spring v. Tongue, 9 Mass. 28, the subject of the sale was a pew, which the seller cove- nanted to be free from all incum- brance. By the act of incorporation, the pews were liable for any assess- ment which it might be necessary to make, and the plaintiiF had been obliged to pay a certain sum assessed for the deficiency of funds in build- ing the church, the money arising from the sale of the pews not having made up the requisite amount for that purpose. The Court, however, held : " We cannot consider this as an incumbrance for which the de- fendant is liable in damages. The facts must have been equally known to each of the parties. The damage to the plaintiff arose from the dimin- ished value of the pews in the general 10* estimation. Had the "proceeds of the sale of the pews exceeded the cost of the house, the plaintiff would have had his proportion of the bene- fit. The loss therefore is properly his." In a late case in Maine, (Clark V. Perry, 30 Maine, 148,) the defend- ant conveyed to the plaintiff ten shares in an incorporated company. The assets at the time were not equal to the debts, which a general law of the State made the shares liable for, and it was held that this liability, was a breach of the covenant against incumbrances, and in referring to Spring V. Tongue, the Court said, " It does not appear but that the pews at the time of the sale to the plaintiff were equal in value to the amount of the expenses. But in the present case it is stated, that the as- sets were not equal to the liabilities at the time of the conveyance." 2 Eeasoner v. Edmundson, 5 Indi- ana, 394 ; Bean v. Mayo, 5 Greenleaf, (Me.) 94 ; Shearer v. Eanger, 22 Pickering, 447 ; Norton v. Baboook, 2 Metcalf, 510. 3 Jarvis v. Buttrick, 1 Metcalf, 480. 4 Morgan v. Smith, 11 Illinois, 199 ; Ginn v. Hancock, 31 Maine, 42. 114 THE COVENANT AGAINST INCUMBRANCES. of way to a spring upon it,^ or to clean an artificial water- course,^ or to cut timber,^ or to erect a party-wall,* and the like. It is not, however, every easement whose existence will constitute a breach of the covenant against incumbrances.'^ Such as are either expressly or impliedly excepted from the grant will, of course, to the same extent be deemed to be excepted from the covenant which accompanies it.® Such, also, as constitute part of the estate conveyed, or which as between the parties are to be regarded as an incident to which it IS subject, are not to be considered as incumbrances within the covenant.^ Thus, in a late case in Massachu- setts, it was held that the right of the owner of a mill to have a natural stream of water pass off freely over the land of an owner below would not of itself create any liability upon a covenant against incumbrances attached to the con- veyance of the land below,^ and consequently that the inci- See Fitch v. Seymour, 9 Metcalf, 466, and Ballard v. Ballard Vale Company, 5 Gray, (Mass.) 458. 1 Mitchell V. Warner, 5 Connect. 497 ; Harlow v. Thomas, 15 Pick- ering, 68. 2 Prescott V. Williams, 5 Metcalf, 433. 3 Cathcart v . Bowman, 5 Barr, (Pa.) 319. * Giles V. Pugro, 1 Duer, (N. Y.) 331. 5 In Parish v. Whitney, 3 Gray, (Mass.) 516, where a grantee of cer- tain premises stipulated that he would keep up a partition fence between them and the adjoining propei'ty,and subsequently sold them with a cove- nant against incumbrances, it was held that this stipulation was no breach of that covenant, because it was neither a reservation, nor a con- dition, nor a covenant running with the land, while in Estabrook v. Smith, 6 Gray, 572, where the land was con- veyed on condition that the gran- tee should erect a house within a year, which condition was complied with, the mere existence of the con- dition was held to be no breach. " The condition as to the erection of a house made the estate defeasible, but this was not an incumbrance within the meaning of the covenant against incumbrances, nor has the ■ estate been defeated by breach of that condition." 6 Pettee v. Hawes, 13 Pickering, 323 ; Griswold v. Allen, 22 Connect. 89. 7 Dunklee v. Wilton Eailroad Co. 4 Foster, (N. H.) 489. 8 Prescott V. Williams, 5 Metcalf, 429, and see Prescott v. White, 21 THE COVENANT AGAINST INCUMBRANCES. 115 dental right to enter upon the land below to clean out the stream and remove obstructions was no breach of such a covenant, although its exercise was to be confined within the strictest limits compatible with the enjoyment of the princi- pal easement. So 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 of ,the lower dam with the right of raising water by it to the height at which it then stood, was not a breach of the covenant against incumbrances which accompanied the con- veyance to the purchaser of the upper mill.^ Some conflict of authority has existed, and still prevails, as to whether the existence of a public road or highway over the property is a breach of this covenant. It has already been mentioned that such a way is no breach of the covenant for seizin, inasmuch as, although -the public may have the right of passage, the freehold still remains in the owner of the soil.^ A private right of way ^ may certainly be deemed to be a breach of the covenant against incum- brances,* and the same may perhaps be said of any way which is not visible and patent, or whose enjoyment is not matter of public notoriety. But in Kellogg v. Ingersoll,^ de- cided in Massachusetts in 1806, the same rule was extended to piiblic roads. In an action on the covenant against in- cumbrances, the breach assigned was the existence " of a public town road or way duly laid out by the town of A. for the use of all its inhabitants," which was held to be an incumbrance. " It is a legal obstruction to the purchaser, to exercise that dominion over the land, to which the lawful Pickering, 341 ; Dunklee v. The necessity, so as to come within the Wilton Eailroad Co., supra, is to the principle of Prescott v. Williams, 5 same effect. Metcalf, 433, cited supra, p. 114. 1 Gary v. Daniels, 8 Metcalf, 466. * Supra, p. 113. 2 See supra, p. 51. ^ 2 Mass. 101, per Parsons, Ch. J. 3 Unless perhaps it be a way of 116 THE COVENANT AGAINST INCUMBRANCES. owner is entitled. An incumbrance of this nature may be a great damage to the purchaser, or the damage may be very inconsiderable, or merely nominal. The amount of damages is a proper subject of consideration for the jury who may assess them ; but it cannot aSect the question whether a public town road is, in legal contemplation, an incumbrance of the land over which it is laid." In New York, however, although the question was riot directly decided in the case of Whitbeck v. Cook, yet a strong doubt was there expressed whether a public road could properly be deemed an incumbrance ; •■ while in Penn- sylvania, where the question was presented in Patterson v. Arthurs,^ it was decided in the negative. The Court ex- pressed its surprise that a highway should ever have been imagined an incumbrance within the covenant, and the belief that it had been the universal understanding of both sellers and purchasers in Pennsylvania, that the covenant against incumbrances did not extend to public roads. " Although a public highway, no doubt, is, in many instances, an injury 1 15 Johnson, 483. " It must strike brances. The first answer to that any one with surprise," said Spencer, case is, that the plaintiff here counts J., " that a person who purchases a on no such contract ; and the second farm through which a public road is, that we should choose to consider runs at the time of purchase, and had the point further before we consented so run long before, who must be pre- to the doctrine of that case." sumed to have known of the exist- i 9 Watts, 152, per Kennedy, J. ence of the road, and who chooses The case, however, was not an action to have it included in his purchase, brought on a covenant against in- shall turn round on his grantor and cumbrances, but an action by a ven- ooraplaln that the general covenants dor for the first instalment of the in the deed have been broken by the purchase-money of certain lots, cove- existence of what he saw when he nanted to be conveyed clear of all purchased, and what must have en- incumbrances, and the purchaser hanced the value of the farm." And claimed a deduction because of a it was added, the case of Kellogg v. public road, which passed diagonally Ingersoll " has been cited to show over the ends of the lots, and had that the existence of a town road is been in use for thirty years, a breach of the covenant of incum- THE COVENANT AGAINST INCUMBRANCES. 117 instead of a benefit to the holder or owner of the land upon which it is located, and therefore tends to lessen its value in the estimation of a purchaser, yet it is fair to presume that every purchaser, before he closes his contract for his pur- chase of land, has seen it and made himself acquainted with its locality, and the state and condition of it ; and conse- quently, if there be a public road or highway open and in use ■ upon it, he must be taken to have seen it, and to have fixed in his o'wn mind the price that he was will- ing to give for the land, with a reference to the road, either making the price less or more, as he conceived the road to be injurious ojc advantageous to the occupation and enjoyment of the land. . . The existence of the high- way could not be regarded as an incumbrance that came within the meaning of the parties, when they used the term ' incumbrances ' in their contract ; ^ and hence an ac- tion of covenant could not be sustained on account of it, for a breach of the covenant against incumbrances."^ 1 So in the case of Dobbins v. it, upon the representation of the Brown, 2 Jones, (12 Penn. State R.) vendor, where its value is materially 80, the Court said : " It will scarcely lessened by a public highway being be thought that a covenant of war- located upon it, whicTi circumstance ranty extends to an entry by the au- is concealed or not made known by thorities of the State, in the exercise the seller to the purchaser, the latter of its right of eminent domain. Like might obtain redress by an action on any other covenant, it must be re- the case in the nature of a deceit ; strained to -what was supposed to be or, in an action brought against him the matter in view, and no grantor for the purchase-money, might have who warrants the possession, dreams compensation made, by a deduction that he covenants against the entry therefrom. But it will lie upon him, of the State to make a railroad or a before he can claim compensation on canal, nor can it be a sound inter- such account, to remove, by the proof pretation of the covenant that would of circumstances at least, the pre- make him liable for it," and to the sumption that he knew of the exist- same effect is Bailey v. Miltenberger, ence of the highway, at the time he 7 Casey, (31 Penn. State K.) 41. bought, and that the seller concealed 2 " It may be, however," the Court it from, or did not disclose it to him." went on to say, " that if a person A case somewhat similar to this was purchase land without having seen decided by Lord Rosslyn in 1800, 118 THE COVENANT AGAINST INCUMBRANCES. But whatever weight may be due to this decision, it can- not be denied that the current of authority has set strongly the other way, and the ruling in Kellogg v. Ingersoll has been approved and sustained in all the New England States, and it must be considered as definitively settled there that a where a meadow having been sold to the owner of an adjoining house, without any notice having been given by the vendor of a footway round and across it, which lessened its value, the Chancellor decreed a specific performance with costs. He " could not help the purchaser who did not choose to inquire. It was not a la- tent defect." Oldfield v. Round, 5 Vesey, 508. But Lord Manners sub- sequently observed of this case, in EUand v. Llandafi", 1 Ball & Beatty, 250, that he believed the bar were not very well satisfied with this de- cision, although certainly the pur- chaser was very negligent. Had he used ordinary caution he would have discovered the easement. (See, as to this, infra. Chapter XIH.) It seems proper to remark that the opinion in Patterson ;;. Arthurs seems to have been in a great degree based upon what was considered to be the general understanding as to this point throughout the State, and the case of Kellogg V. Ingersoll was referred to, and supposed to have proceeded upon a general contrary understanding in Massachusetts, although this does not appear in that case, or in the others decided in the New England States. But there may be reasons, although they are not mentioned in the opin- ion in Patterson v. Arthurs, why such a general understanding should have arisen in Pennsylvania, so far as re- spects public roads in the country. It was originally agreed by Penn, at the formation of this colony, that there should be laid out " great roads from city to city ; " and as the wild state of the country rendered this impossible to be done otherwise than very gradually, it became the custom of the proprietaries, and afterwards of the commonwealth, to allow to all grantees of vacant lands an addition, in the proportion of six acres for every hundred, as a compensation for the roads that should thereafter be opened. This was so universal, that although the declaration of rights in the constitution provided that no man's property should be taken or applied to public use " without just compensation being made,'' it was held that an Act of the legislature authorizing a turnpike company to lay out and open roads, without com- pensation, was no infringement of the constitution, " such compensation having been originally made in each purchaser's particular grant ; " (Mc- Clenachan v. Curwin, 3 Yeates, 373,) and from this circumstance, and the fact that " it had been considered that the running a road through a man's land conferred such a benefit upon him as fully to compensate him generally for the expense of fencing his land anew," we may, perhaps, trace the " common understanding " which formed the basis of the decis- THE COVENANT AGAINST INCUMBRANCES. 119 public highway does constitute at law a breach of the cove- nant against incumbrances.^ Some doubt has, moreover, been at times expressed 1 Herrick v. Moore, 19 Maine, 313 ; Haynes v. Young, 36 Id. 560; Pritcliard v. Atkinson, 3 N. Hamp. 335; Butler v. Gale, 1 Williams, (Verm.) 742 ; Parish u. Whitney, 3 Gray, (Mass.) 576 ; Hubbard v. Nor- ton, 10 Connect. 431. In this case, after quoting the remarks in AVhit- beck V. Cook, supra, p. 116, note, Williams, Ch. J., said : " Upon the principle upon which the Judge pro- ceeds the evidence would be unne- cessary, because he presumes knowl- edge in the grantee. He also pre- sumes that the value of the farm -will be enhanced by the road. This may be so, or it may not be so. If it is, very little damages could be recov- ered ; if it is not, no weight is added to the argument from the fact that cases may arise where it may be so. But if this course in the grantee might excite surprise, will it not ex- cite more surprise that the grantor should convey these lands, with the knowledge he must have of these incumbrances, vrithout making an exception of them, unless he was willing to sustain the damages that might arise from them ? When it is recollected that this is the deed of the grantor, and these his covenants, it seems more correct to say that he must abide by them than to permit him to unnerve or destroy them, by proof of this kind, which is only cal- culated to induce a belief that the party grantor could not have in- tended what he has actually cove- nanted for.'' In the very recent case of Butler v. Gale, supra, the subject was carefully considered, and Redfield, Ch. J., in delivering the opinion of the Court, said : " The question in regard to the highway being a breach of the covenants against all incumbrances, to a mere lawyer, would not seem to be one of much difficulty. But if one chose to confound the powers of the Court of Chancery, in restraining the party from claiming damages, for such a mere technical breach, which the parties must have understood, and could not really have intended to indemnify against, with the dry law of the case, and to appeal to the merely popular opinion, as to the extent of such a covenant, he might very readily convince some persons of no great perspicuity in their views, and very likely the great majority of men, of the very great absurdity of the law, without at the same time really showing very clearly how a highway or a railway or a private right of way was not, after all, an incumbrance upon the land. In this country, where our tenures are strictly allodial, we are very much accustomed to consider that, if an- other really possess any rights in our land, it is, so far forth, an incum- brance upon our title. Whether it be small or large in amount, whether it be a mortgage or a right to flow a portion or all of the land for a shorter or longer period during the year, or to draw water from a well or spring, or to water cattle at a brook, or to pass across the land on foot, or with teams, or to draw wood in winter only across the land, or to build and maintain a railway 120 THE COVENANT AGAINST INCUMBRANCES. whether an inchoate risfht of dower was such an incum- brance as would cause a breach of this covenant. In a case in the Massachusetts Circuit, Mr. Justice Story appeared perpetually, or a highway, is cer- tainlj' of no importance, in deter- mining the mere technical question of incumbrance or no incumbrance. And it can make no difference whether this right is notorious or not. If the question of an incum- brance were to be determined by its notoriety, or what is the same thing by its being known to the purchaser, it must, to preserve consistency, be extended to all incumbrances. And, in that view, the grantee could not recover upon this covenant, for pay- ing a mortgage which he knew ex- isted at the tiine of his purchase. But the contrary is perfectly well established. And in regard to these rights of way, if they existed only in a prior grant, and were not known to the grantee at the time of pur- chase, no one could claim that they did not constitute a breach of the cov- enant against incumbrances. And if the question whether a highway is an incumbrance upon land, is to be determined by the fact of its being open and notorious, it resolves itself into this, whether it was the inten- tion of the parties to treat it as an incumbrance, or not. And the same rule should equally apply to a mort- gage which the purchaser agreed to pay. But no lawyer will contend that, in such a case, if the grantor covenants against all incumbrances, he is not liable to refund the money paid upon the mortgage by the gran- tee. That is, he is so liable at law. This is the written contract of the parties, and it cannot be set right in a court of law where the writing is the exclusive evidence of the con- tract. But in such a case, the party must resort to a court of equity, to restrain the other party from claim- ing indemnity against an incum- brance, which was intended to be excepted from the covenant. And the same is no doubt true of a cove- nant against incumbrances so far as highways are concerned. " Ordinarily a court of equity would readily suppose the incum- brance of an existing highway, or railway, or any other known and notorious right, of a similar charac- ter; as a right to draw water fi'om a spring, exercised by another at the time of the conveyance, could not have been intended to be indemni- fied against, and therefore should have been excepted from the opera- tion of the covenant, and would, no doubt, so require the parties to treat the deed. But a court of law could not do this, without confounding all distinctions between the equity and law jurisdiction upon the subject. The case of Patterson u. Arthurs, 9 Watts, 152, relied upon in argu- ment by defendant's counsel, seems to us to have been decided upon this ground, there being no chancery jurisdiction in that State to any ex- tent. It is the common practice there, or was a few years since, to reform a deed in the course of a jury trial, in an action of ejectment, as the reports abundantly show. That is the only ground upon which this case can be maintained, unless we are prepared to determine ques- tions of law according to the popular THE COVENANT AGAINST INCUMBRANCES. 121 to incline to the opinion that it was not/ and a similar conclusion might be drawn from some observations subse- opinion, and the probable under- standing of the parties, at the time of making contracts, which sounds sufficiently absurd to alarm even the most desperate reformers. The case- of Whitbeck v. Cook, 15 Johns. 483, is not an action upon any cov- enant against incumbrances, but up- on those of seizin and good right to convey ; and the Court held a high- way no breach of the covenants sued upon. The argument of the Judge is more plausible than sound, when he attempts to show that a highway is no incumbrance upon the land. It might, indeed, be a benefit to the land, and so might, in some sections of country, the right (and the exercise of it) to cut the wood and timber growing upon the land. But it could scarcely be claimed that such a right is no incum- brance. If a highway Is no incum- brance, neither would it be if the whole land were covered by a high- way, or a public common. The case of Kellogg V. Ingersoll, 2 Mass. 97, is directly in point and sustained by the opinion of Chief Justice Parsons, who never stumbled in the law, and is adopted in Connecticut, New Hampshire, and Maine, as the cases read at the bar show, and we feel compelled to say that the question admits of no doubt that a public highway across land is an incum- brance upon the title, the amount of which may be more or less according to the circumstances." 1 Powell and wife v. The Manson and Brimfield Manufacturing Co. 3 Mason, 355. A bill was filed by the 11 husband and wife for an assigment of dower in land which had been prev- iously conveyed to the defendants by a former husband of the wife, with a covenant against incumbrances. In this conveyance she had not joined. It seems to have been contended by the defendants, that the covenant against incumbrances implied a con- tract on the part of the husband to procurethe wife to release her dower, and that this must raise a presump- tion that the deed actually conveyed that right. It was properly observed by the Court that " it would be dan- gerous to bolster up imperfect in- struments in this way, by conjectures and inferences ; " but it was added, " I am not prepared to admit the doctrine contended for at the bar, that the covenant against incum- brances is broken by tlje mere exist-, ence of a possible incumbrance. — A possibility of dower is not, within the meaning of the covenant, an in- cumbrance, for that means a settled, fixed incumbrance, and if the result of the Massachusetts authorities on this point has not been mistaken by me, taking them collectively, they do not sustain the doctrine now con- tended for." The authorities thus re- ferred to were Marston v. Hobbs, 2 Mass. 433, and Bickford v. Page, Id. 461 ; but on examination they do not fully bear out this conclusion. In the former case it was merely said by Parsons, Ch. J., " The defendant did not covenant against all interrup- tions of the plaintiff's possession, nor against all possible incumbrances. To these covenants the breaches should 122 THE COVENANT AGAINST INCUMBRANCES. quently made in that State,-^ while in Ohio it seems. to have been decided that even a right of dower, made perfect by the death of the husband, was not an incumbrance within the scope of the covenant.^ be specially assigned, showing the nature of the incumbrance and in- terruption complained of. No ex- press case has been produced as to covenants for quiet enjoyment ; and in the entries the incumbrance is specially alleged in the count ; " while in the latter case, which was an action brought on covenants of good right to sell, against incumbrances, and of warranty against all lawful claims, with a general assignment of each breach by negativing the words of the covenant, the same learned Judge observed : " The covenant against in- cumbrances, and to warrant and de- fend, we lay out of the case ; as no particular incumbrance is shown, and no ouster by a title paramount is alleged, the plaintiff cannot recover damages for any supposed breach of these covenants." In the case of Pres- cott V. Trueman, 4 Mass. 629, decided soon after, it was said that every right to an interest in the land granted, to the diminution of its value, but con- sistent with the passing of the fee, must be deemed in law an incum- brance ; " of this nature is a claim of dower, which may partially defeat the plaintiff's title by taking a freehold in one third of it." 1 In Fuller v. Wright, 18 Picker- ing, 405, which, however, was not an action on the covenant against incum- brances, but an executory agreement, the Court said (per Shaw, Ch. J.) : "Whether under all circumstances an inchoate right of dower, where hus- band and wife are both living, shall be deemed an incumbrance, is a ques- tion which must depend upon the con- tract and the circumstances. It is true that it is no estate or interest, but only a possibility. But it is a possibil- ity which may give the wife an estate, upon the happening of a contingent event, — the death of her husband, — without any new act to be done or new right to be acquired. Upon a 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, free of all claims and incumbrances, it would be reasonable to consider it as the intention of the parties that for the sum named the covenantee should have a complete title free of actually existing claims of dower. But we think no general rule can be laid down to determine absolutely whether such an inchoate right of dower is an incumbrance ; it must depend upon many and various cir- cumstances and considerations," and it was held that under the contract in question the intention of the par- ties was merely to give such.a title as the parties could convey without the wife's joining to release her dower. 3 Nyce's Executor v. Clark, 17 Ohio, 71. It was there averred as a breach of a general covenant against incumbrances that the 'widow of a prior owner of the premises had, after her husband's death, filed her peti- tion for dower, which was assigned and valued at a certain sum, which the covenantee was compelled to THE COVENANT AGAINST INCUMBRANCES. 123 More recently, however, it has been distinctly and finally settled in Massachusetts that a right of dower, whether inchoate or rendered complete by the death of the husband, is an existing- incumbrance amounting to a breach of this pay, in order to avoid execution, and then brought suit on his cove- nant. The Supreme Court took a dis- tinction between the effect of the covenant as expressed in that case (which vifas in the short form already referred to, " that the premises are free and clear of all incumbrances ■whatsoever,") and as expressed in English conveyances, and held that the former was strictly a covenant in presenti. " Suppose," said the Court, " by contract, A should bind him- self, for a consideration to be paid, to convey to B by deed containing covenants of warranty and against incumbrances, a tract of land ; could B avoid the performance of the con- tract by showing that by possibility there might be, at some future time, a dower-claim like the one in the present case ? It seems to me not, but that B would be compelled to take the land and rely upon his cov- enants. The CEise would be differ- ent, however, should he, after mak- ing the contract, discover that the land was incumbered by judgment or mortgage." Except as to the last sentence, however, some doubt may be entertained as to the correctness of this proposition. Equity would not, under the circumstances imagin- ed, compel a specific performance ; Greenwood v. Ligon, 10 Smedes & Marshall, (tiliss.) 615; Barnet v. Gaines, 8 Alabama, 374; Puller v. Wright, 18 Pick. 405; In re Hunter, 1 Edwards' Ch. (N. Y.) 1; Parks v. Brooks, 16 Alabama, 529 ; McLemore V. Mabson, 20 Id. 137 ; nor could damages be recovered at law against the purchaser for a refusal to comply with the contract ; Porter v. Noyes, 2 Greenleaf, (Me.) 26 ; Jones v. Gard- iner, 10 Johns. 266 ; Bitner v. Broun-h, 1 Jones, (11 Penn. State R.) 1 3 7; Polk V. Sumpter, 3 Strobhart, (S. Car.) 81. It is one of the most settled principles of the law of vendor and purchaser, that, as a general rule, the right of the latter to a title clear of all claims whatsoever, present and future, fixed op contingent, is one of which he cannot be deprived but by his own acts. It is a right, as has been often observed by the greatest equity Judges, given by the law and not springing from the contract of the parties. It would be affectation to cite authority as to this. The very point, however, put by the Court in Ohio, was thus answered in a recent case in Pennsylvania : " The cove- nant was broken by the defendant's refusal to comply with the contract, for the plaintiff was not bound to re- ceive a deed, even with general war- ranty, unless the wife joined in the conveyance, extinguishing her con- tingent interest ; " Bitner v. Brough, 1 Jones, (11 Penn. State R.) 138; see the able remarks of Gibson, Ch.J., in Clark V. Seirer, 7 Watts, 110. The acts of the purchaser may, of course, waive his right, as where, with notice of the right of dower, he pays the purchase-money and goes into pos- session, in which case he will not, of course, be allowed to rescind the con- 124 THE COVENANT AGAINST INCUMBRANCES. covenant, which, it was said, extends to all adverse claims and liens on the estate conveyed whereby the same may be defeated in whole or in part, whether the claims or liens be uncertain and contingent or otherwise ; ^ and such would seem to be undoubtedly the better law, and to be sustained by the weight of authority.^ But, in fact, there is far less real than apparent contra- diction between the cases upon this subject of dower. All the difficulty that has arisen, if indeed any exists, seems to have been caused by losing sight of the distinction between a technical breach of this covenant, and a breach followed by such circumstances as give a right to actual damages. For where the covenant is that the purchaser " shall enjoy free from all incumbrance," most unquestionably the cove- tract because of such an incumbrance ; Barnett v. Gaines, 8 Alabama, 374. 1 Shearer v. Ranger, 22 Pickering, 447. The question was considered to be finally settled on the authority of Porter v. Noyes, 2 Greenleaf, (Me.) 26 ; Jones v. Gardiner, 10 Johnson, 266. 2 Porter v. Noyes ; Jones v. Gar- diner, supra ; Donnell v. Thompson, 1 Fairfield, (Me.) 170; Smith v. Cannel, 32 Maine, 126; Carter v. Denman, 8 Zabriskie, (N.J.) 273; Jeter v. Glenn, 9 Richardson's Law R. (S. Car.) 376 ; Henderson v. Henderson, 13 Missouri, 152. In a recent case in Missouri, (Blair v. Rankin, 11 Missouri, 440,) the whole Court seemed to have thought that even admitting that a recital that the premises were subject to a payment of twenty-two dollars per annum and no more, created a covenant, (which it denied,) such a covenant would not be broken by the existence of a right of dower which had been com- promised by payment of a certain sum. But in Henderson v. Hender- son, suprf., the purchaser was held entitled to recover what he had paid to extinguish a right of dower, al- though the husband was living at the time of the execution of the deed. The supposition that an inchoate right of dower is not an incumbrance because only a possibility, is met by an anonymous case in Sir Francis Moore's Rep. 249, pi. 393, where one made a lease for years and the lessee devised the term to his wife for so many years as she should live, and then to his son. The wife pur- chased the inheritance and then sold it with a covenant that the land was discharged of all former incum- brances, and sealed an obligation to perform that covenant 'The wife then died and the son claimed the term, and it was adjudged in an ac- tion of debt on the covenant that the possibility was a forfeiture of the land because it was an incumbrance. See also Haverington's case, Owen, (28 Eliz.) 7. THE COVENANT AGAINST INCUMBRANCES. 125 nant is not broken by the mere existence of a right of dower, whether inchoate or otherwise. But where the form of the covenant is tliat the premises " are free from all incumbrance," then the covenant is as certainly broken by the existence at that time of a right of dower, although it may be inchoate and contingent ; though at the same time, if the purchaser then sue upon the covenant, his damages would be but nominal.^ The distinction between a verdict for the defendant, and a verdict for the plaintiff" with nomi- nal damages, is apparently so slight a one as easily to account for its having been sometimes lost sight of. It is often of importance, however, particularly on the question of costs. It was observed in the chapter on the covenant for seizin, that in the pleadings on that covenant it was unnecessary for the plaintiff' to specify the paramount title or indeed refer to it in any way, either in the declaration or replica- tion. A different rule, however, prevails with respect to the covenant against incumbrances. It is not sufficient that the pLiintiff' negative the words of the covenant generally ; he takes upon himself the responsibility of proving the in- cumbrance, and must set it forth in his declaration. A contrary rule would oblige the defendant to prove a nega- tive.^ It is not, however, necessary or prudent, either in suing upon this covenant, or that for quiet enjoyment or of • Donnell v. Thompson, 1 Fairfield, damages would be but nominal ; (Me.) 170; Carter v. Denman, 3 Za- Grice v. Scarborough, 2 Spears, (S. briskie, 273 ; and see the cases cited Car.) 249 ; so in Clark v. Perry, 30 infra, p. 134. In the same way it has Maine, 148, cited supra, p. 113. been held that a prior lease was clear- 2 Dummeru.Birch, 1 Comyns,147; ly an incumbrance within the scope of Marston u. Hobbs, 2 Mass. 437; the covenant, but that if the right to Bickford v. Page, Id. 461 ; Mills v. the rent reserved had passed with the Catlin, 22 Vermont, 106 ; De Forest reversion, under the statute of Hen. v. Leete, 16 Johns. 122; Shelton v. VIU., or a similar enactment, the Pease, 10 Missouri, 473. 11 * 126 THE COVENANT AGATNST INCUMBRANCES. warranty, that the incumbrance or paramount title should be set forth more than substantially, since if it were par- ticularly alleged, and being so alleged were traversed, the plaintiff might not have the means of proving it exactly.^ The damages should, however, be laid with reasonable certainty.^ As, according to well-settled authority, it is a ' 2 Williams' Saunders, 181 a, note 10; Foster v. Pierson, 4 Term Rep. 617 ; Young v. Raincock, 7 Com. Bench, 310; Duval v. Craig, 2 Wheaton,45 ; Morgan v. Smith, 11 Illinois, 200. 2 De Forest v. Leete, 16 Johns. 122; Funk v. Voneida, 11 Serg. & Rawle, 109 ; Tufts v. Adams, 8 Pick. 549 ; Pillsbury v. Mitchell, 5 Wiscon- sin, 22. The following form is given by Mr. Greenleaf in his Treatise on Evidence, Vol. 2, § 244. " The de- claration by a grantee by deed of bargain and sale, against his grantor, for breach of the covenant of free- dom from incumbrance by the exis- tence of a paramount title, is in this form : ' in a plea of covenant ; for that the said defendant, on the day of by his deed (if by indenture it should be so set forth,) duly executed, acknowledged, and recorded, and by the plaintiff now here produced in court, for a valu- able consideration therein mention- ed, bargained, sold and conveyed to the plaintiff (here describe the prem- ises), to have and to hold the same with the appurtenances to the plain- tiff, and his heirs and assigns forever; and therein among other things, did covenant with the plaintiff that the said premises were then free from all incumbrance whatsoever. Now the plaintiff in fact says that, at the time of making the said deed, the prem- ises aforesaid were not free from all incumbrance ; but on the contrary, the plaintiff avers that, at the time of making said deed, one E. F. had the paramount and lawful right and title to the same premises ; by reason whereof the plaintiff has been obliged to expend, and has expended a great sum of money, to wit : the sum of in extinguishing the said para- mount and lawful right and title of the said E. F. to said premises." The above form is, however, very "con- cise. Others more elaborate will be found in 2 Chitty's Pleading, 548- 569 ; 6 W^entworth's Pleading, 53, 63; and in Carter v. Denman, 3 Zabriskie, 273, is a very carefully-drawn declar- ation where the incumbrance was a right of dower which had been ex- tinguished by the plaintiff. The form will, of course, vary with the nature of the incumbrance and the manner in which the damages have been sus- tained. If the covenant be limited to the acts of the grantor, the declar- ation must, of course, show that the incumbrance was made or suffered by him, otherwise it will be bad on de- murrer ; Mayo v. Babcock, 40 Maine, 142. It has been recently held in Connecticut that an amendment of a declaration, by adding a count setting forth a, new and distinct in- cumbrance, is not objectionable as changing the ground of action, within the statute which authorizes amend- THE COVENANT AGAINST INCUMBRANCES. 127 general rule that the mere existence of the incumbrance, without more, will entitle the plaintiff to but nominal dam- ages, the familiar principle applies that where damage does not necessarily arise from the act complained of, the plaintiff must, to prevent surprise, state the particular damage sus- tained, or he will not be permitted to give evidence of it on the trial. ^ The damage may arise in various ways. The purchaser may be obliged to extinguish the incumbrance, or he may be evicted under it, or the land may be sold under a subsequent incumbrance, when, if the amount of the former one be paid out of the proceeds of sale, it will, by so much, diminish the amount coming to the plaintiff.^ merits which do not change the form or ground of action ; Spencer v. Howe, 26 Connect. 200. There are cases where the plain- tiff has extinguished the incumbrance after suit brought, and been held en- titled to recover the amount paid for that purpose ; Kelly v. Lord, 1 8 Maine, 244 ; Foote v. Burnet, 10 Ohio, 317 ; Brooks V. Moody, 20 Pickering, 475 ; Moseley v. Hunter, 15 Missouri, 322. In a recent case in the Queen's Bench, the plaintiff declared on the breach of an agreement to assign a lease, and alleged that he had been " put to great expense amounting to a large sum of money," &c., in in- vestigating the title. On the trial it appeared that he had not paid the bill of costs until after suit brought, but it was, nevertheless, held that he was entitled to recover. " If," said Lord Denman, •' a plaintiff chooses to al- lege in his declaration that he had paid money, he must prove that he had paid it ; but if he merely says that he has been 'put to expense,' the allegation is satisfied by proof that he has incurred a liabihty to pay." Kichardson v. Chasen, 10 Q. Bench, 756. 1 1 Chitty's Pleading, 338 ; Pills- bnry ti. Mitchell, 5 Wisconsin, 22. 2 Haire v. Baker, 1 Selden, (N. Y.) 361. Thus, in Funk v. Voneida, 11 Serg. & Rawle, (Pa.) 113, when the fact of the existence of a mort- gage on the premises of the pur- chaser got to be publicly known, his creditors becoming anxious for their security, pressed him, and the. property was sold at a sacrifice, and the Court said, " If the plaintiff had laid the consequential damages he offered to prove, the evidence should have been received ; but as they were not laid, and not confessed by the plea of covenants performed, it is evident the evidence was prop- erly overruled. If he had discharg- ed the mortgage, this ought to have been stated as the actual gravamen. So, if by a judicial sale he had sus- tained, as was alleged, the ultimate damage which he ever could have sustained, this gravamen ought to have been laid." See also Batchel- der V. Sturgis, 3 Gushing, 204. 128 THE COVENANT AGAINST INCUMBRANCES. In case there are known incumbrances of any kind sub- ject to which the purchaser agrees to take tlie property, these should, for the vendor's protection, be specially and expressly excepted from the operation of the covenant, as otherwise the fact of their being known to the purchaser will, according to the weight of authority, be no bar to his recovery upon it.^ Thus, in an old case where a grantor covenanted that a lease was good and unincumbered, in an action of covenant alleging an incumbrance the defendant pleaded that the plaintiff' had notice, which was held bad on demurrer.^ This decision has been often recognized and followed,^ and it must be considered as settled that mere notice of an incumbrance cannot affect the right of recovery upon the covenant.* It is evident that the only presump- 1 In considering these remarks upon tbe subject of the purchaser's notice, the reader will of course ob- serve the distinction between the different rules of law which govern the contract before its consumma- tion by the execution of the deed, and those which apply after that time. See infra, Chapter XIII. 2 Levit V. VVitherington, Lutwyche, 317. This reference is to the French folio of 1 704. In Nelson's translation (octavo, 1718,) the case is omitted. 3 Funk V. Voneida, 11 Serg. & Rawle, 112; Hubbard v. Norton, 10 Connect. 431 ; Grice v. Scarborough, 2 Spears, (S. Car.) C49 ; Snyder v. Lane, 10 Indiana, 424. In the two latter cases a plea of the plaintiff's notice of the incumbrance was held bad on demurrer. " It is no answer, to the purchaser's complaint," said Duncan, J., in delivering the opinion in Funk v. Voneida, supra, " to say it was his duty to search the record, and to have protected himself by some special covenant against this specific incumbrance. It was no part of this case that he had ac-tual no- tice, but if he had, it could make no difference. The purchaser cov- enanted against all incumbrances. The rule as to the vendee is caceat emptor. So let the vendor take care of the covenants he enters into. Notice of the mortgage would make no difference, as was determined in Levit V. Witherington." So in Hub- bard V. Norton, supra, it was said, " How can the plaintiir's knowledge destroy the effect of the defendant's covenant? Suppose the defendant had sold a farm which he and the purchaser both knew they did not own — could that knowledge destroy or affect tbe nature of the covenant for seizin ? If not, by what rule can such knowledge impair a covenant of warranty against incumbrances ?" * Hubbard i'. Norton, 10 Connect. 422; Sargent v. Guttorson, 13 N. Hamp. 473 ; Lloyd v. Quimby, 5 THE COVENANT AGAINST INCUMBRANCES. 129 tion to be drawn from the purchaser's notice is that he agreed to run the risk of the incumbrance, or in other words, that the incumbrance was intended to be excepted from the operation of the covenant ; but if this be really the case, it is in the power of the vendor to make it so appear on the face of the deed, and if he neglect to take this pre- caution, he cannot be allowed to repair his carelessness at the expense of settled principles. If, indeed, the agree- ment of the parties has been improperly or imperfectly set forth in the conveyance, the familiar jurisdiction of equity in the reformation of deeds on the grounds of fraud and mistake may be successfully invoked by the covenantor,^ or if the omission has been occasioned by fraud, he may have a remedy at law by an action on the case in the nature of a Ohio State K. 265 ; Taylor v. Gil- man, 25 Vermont, 413 ; Harlow v. Thomas, 15 Pickering, 70; Grice w. Scarborough, 2 Spears, (S. C.) 654 ; Medler v. Hiatt, 8 Indiana, 173; Sny- der V. Lane, 10 Id. 424 ; Dunn v. White, 1 Alabama, 645 ; Suydam v. Jones, 10 AVendell, (N. Y.) 1 86 ; Mor- gan V. Smith, 11 Illinois, 200. 1 Haire v. Baker, 1 Selden, (N. Y.) 360 ; Busby v. Littlefleld, 11 Foster, (N. H.) 199; Taylor v. Gilman, 25 Vermont, 413 ; Butler v. Gale, 27 Id. 744. " Where no question of fraud or mistake is involved, the rule with respect to the admission of parol evi- dence to vary a written contract is the same in courts of equity as in those of common law. The rule is one of common sense and reason as well as of law, and is based upon the well-founded presumption that when an agreement is reduced to writing by the act and consent of the parties, the agreement should be sought in the instrument which they have chosen as the repository and evidence of their purpose, and not on one side of it, in extrinsic facts or allegations. This presumption may, however, be rebutted in equity by proof of fraud or mistake in the pre- paration of the writing, by which its terms have been varied or made dif- ferent from what they were intended and believed to be, which necessarily shows that the written contract is not the true one and that the meaning of the parties must be sought else- where. And it is equally well set- tled that this may be done by every species of evidence, and by oral tes- timony in default of other proof, be- cause it would be absurd to look for the fraud or mistake in the writing, and some latitude is necessary for the attainment of the end in view, and for the detection of the fraud, if fraud has been committed." Mr. Hare's note to Woollam v. Hearne, 2 Leading Cases in Equity, (3d ed.) 670. 130 THE COVENANT AGAINST INCUMBRANCES, writ of deceit/ but every court of law which enforces the rule that parol evidence is not admissible to control or con- tradict the effect of written instruments must, in an action on the covenant against incumbrances, exclude evidence to show that it was the agreement of the parties that the cove- nant was not to extend to a particular incumbrance not ex- pressly excepted from its operation.^ 1 Sargent v. Gutterson, 13 N. Hamp. 473; Funk v. Voneida, 11 Serg. & Kawle, 112. 2 Townsend v. Weld, 8 Mass. 146 ; Harlow v. Thomas, 15 Pickering, 70; Donnell v. Thompson, 1 Fairfield, (Me.) 177; Batchelder !;. Sturgis, 3 Gushing, (Mass.) 203 ; Collingwood V. Irwin, 3 Watts, (Pa.) 306 ; McKen- nan v. Doughman, 1 Penn. 417; Suy- dam 0. Jones, 10 AVendell, (N. Y.) 185 ; Long v. Moler, 5 Ohio Slate R. 271 ; Grice v. Scarborough, 2 Spears, (S. Car.) 649. In Collingwood v. Ir- tvin, supra, the co%'eiiantor oifered to show that at the time of the execution of the deed it was agreed that the as- signment of a certain j udgment should be the only security of the covenan- tee, and that the former was not to be held liable on his covenant. But the Court said, "It is impossible to avoid seeing that to admit such proof would not only be admitting evidence to contradict, but to alter and change most materially the character and effect of the deed. Instead of being a deed with cove- nant of general warranty as it pur- ports on its face, it would, by the operation of the evidence proposed to be given, become a deed without any engagement whatever on the part of the grantor for the goodness of the title. It is not pretended that there was any mistake or fraud com- mitted in introducing the covenant of general warranty into the deed ; the evidence therefore is not offered with a view to obtain relief from the one, nor the purpose of correcting the other. The evidence offered then being oral, falls directly within the general rule that it shall not be admitted to contradict, alter or vary the written agreement "between the parties to it. The Court was there- fore right in rejecting it." In the preceding cases parol evi- dence was held inadmissible on the part of the covenantor to show that an incumbrance which on the face of the deed was included within the the covenant, was in fact intended to be excepted from it, and the con- verse of the proposition is of course equally true, and an incumbrance which on the face of the deed is ex- cepted from the covenant, cannot be shown by parol to have been intend- ed to be included within it, and it has consequently been held that an action of assumpsit cannot be sus- tained upon a parol promise alleged to have been made at the execution of a deed contaming covenants lim- ited to the acts of the grantor where- by the latter agreed to discharge an incumbrance not created by himself, and therefore not within the cove- THE COVENANT AGAINST INCUMBRANCES. 131 It has, moreover, been said that the fact of the purchaser having notice of an incumbrance, is the very reason for his taking a covenant within whose scope it is included,' and nant ; Howe v. Walker, 4 Gray, (Mass.) 318; Blair v. Duncan, 5 De- nio, (N. Y.) 196. There is, however, a class of cases (which the student will find collected in the note to Woollam v. Hearne, 2 Lead. Cas. in Equity, 670), which, while professing to observe the rule which prohibits the introduction of parol evidence to contradict or alter written instruments, still recognize an important exception to it, and proceed upon the ground, that where an agreement has been entered into with an understanding that it shall only be used for certain purposes or with certain qualifications, that un- derstanding cannot be violated with- out a breach of good faith. With these cases must, it would seem, be classed the recent case in Indiana, of Allen V. Lee, 1 Smith, 12; S. C. 1 Carter, 58, where evidence was held admissible to show that at the time of the execution of the deed, the vendor said that the purchaser was to take the land with the incumbrance of a lease for life, and that he thought it should be so mentioned in the deed, but that the purchaser replied that he knew that such was the con- tract, but it was unnecessary to men- tion it in the deed, as he was about to undertake to keep the tenant for life and wished to have the whole title in himself Smith, J., in deliv- ering the opinion of the Court, said, somewhat more broadly than was necessary, "A general covenant of warranty does not, at least conclu- sively, extend to such incumbrances as were known to the purchaser at the time of the contract, and which he agreed to pay or discharge him- self, in addition to, or as part of the consideration-money from him to the vendor ; and where the question is, as in this case, what was the true consideration paid for the land, we think such facts may be given in evidence without in any manner contradicting the terms of the writ- ten warranty." It must, however, be observed of this case, that it was not one of a suit upon the covenant, but the defence of a lease for life was set up in opposition to the pay- ment of a note given for the pur- chase Ihoney ; and in the subsequent case of Medler v. Hiatt, 8 Indiana, 173, the Court, while professing to adhere to Allen v. Lee, said that "the rule of decision on this subject, as evinced by various authorities, is to some extent unsettled. None of these however sustain the position that mere notice to the vendee, at the time he receives his deed, of an ex- isting incumbrance, excludes it from the operation of an express covenant against incumbrances." 1 Harlow v. Thomas, 1 5 Pickering, 70 ; Keith v. Day, 15 Vermont, 670 ; Jacques v. Esler, 3 Green's Ch. (N. J.) 463 ; Long v. Moler, 5 Ohio State 11. 274. "It is true," said the Court in that case, " there are cases which countenance the doctrine that known incumbrances are pre- sumed to be excepted from the oper- ation of the covenant. But a major- ity of the Court are of opinion that 182 THE COVENANT AGAINST INCUMBRANCES. that in some cases the vendor may be expected to discharge it out of the pui'chase-money.-' For all these reasons, therefore, whenever the contract is that the purchaser is to take the land cum onere, the incum- brance should- be expressly excepted in the deed from the operation of the covenant, in which case, of course, the covenantor will not be liable.^ The same result would be obtained if a sealed instrument to that effect were executed cotemporaneously.^ the weiglit of reason and authority alike aire clearly the other way. Rawle on Covenants for Title, p. 349. Nothing is more common than for parties to make and accept cove- nants of this kind with a full knowl- edge of existing incumbrances, the covenantor relying on his ability to discbarge them, and the covenantee in the security which the co^'enant affords ; and the fact of a purchaser having notice of an incumbrance, is the very reason for his taking a cov- enant, within whose scope it is in- cluded." 1 Grice v. Scarborough, 2 Spears, (S. Car.) 654; Dunn v. White, 1 Alabama, 645 ; Skinner v. Starner, 12 Harris, (24 Penn. State R.) 12,8. 2 Potter V. Taylor, 6 Vermont, 676; Van Eensellaer v. Kearney, 1 1 How- ard, (U. S.) R. 321 ; Foster v. Woods, 16 Mass. 116 ; Sanborn u. Woodman, 5 Cushing, (Mass.) 36. Mr. Preston, in his practical instructions as to the preparation of abtracts of title, after suggesting that in general they need only set forth that there are " the usual covenants for title,'' adds : " Sometimes the covenants are ex- pressed more fully, by showing the extent of the covenant and conse- quently introducing the clause ' not- withstanding,' &o. That part of the covenant which deserves the most attention is the exception, if any, against incumbrances ; such excep- tions, as often as there are any, and the incumbrances there noticed, as far as they are material to the title, should be stated in the words of the covenant, and at least so full as to show the nature and extent of those incumbrances." Preston on Abstracts of Title, Vol. 1, p. 153. In Foster o. Woods, 15 Mass. 116, where the conveyance was made, excepting from the covenants " all mortgages made by defendant's in- testate in his lifetime, and which are duly recorded," evidence was held admissible on the part of the defendant to show that a recorded deed from the intestate, absolute on its face, was in fact accompanied with an unrecorded defeasance, so that the two constituted a mortgage, which therefore came within the ex- ception in the covenant. 3 Brown v. Staples, 28 Maine, 497; Robinson v. Bakewell, 1 Casey, (25 Penn. State R.) 42'4 ; Morgan v. Smith, 11 Illinois, 201. In Cope- land V. Copeland, 30 Maine, 499, the agreement, though reduced to writing, seems to have been uu- THE COVENANT AGAINST INCUMBRANCES. 133 It is true that there seems to have been thought a neces- sity for this precaution of excepting the' incumbrance, as well on the part of the purchaser as that of the vendor, for Lord St. Leonards has observed,-^ " It sometimes hap- pens that a purchaser consents to take a defective title, relying for his security upon the vendor's covenant. Mr. Butler remarks that where this is the case, the agreement of the parties should be particularly mentioned, as it has been argued that as the defect in question is known, it must be understood to have been the agreement of the purchaser to take the title subject to it, and that the covenants for the title should not extend to warrant it against this particular defect."^ It certainly has been very often argued that the defect being known, it was understood that the covenants were not to extend to it ; but it is difficult to see how such sealed. In Watts v. "Wellman, 2 N. Hamp. 458, the report does not state whether the agreement by which the plaintiff was to discharge the incum- brance was, or was not written, but as he demurred to the plea which set up such an agreement in bar, he of course admitted its existence. 1 2 Sugden on Vendors, 449. So in Hughes' Practice of Sales of Real Property, it is said, " It is sufficient to covenant against incumbrances generally, without any particular specification, unless the estate is sub- ject to a known incumbfance ; then, it seems, if the purchaser intend to rely upon a vendor's covenants, they should be made expressly to extend to such incumbrance, otherwise it may be presumed that he took the estate subject to such incumbrance, and this should be added at the end of the covenant, as follows :' and par- ticularly of, from and against a cer- tain quit rent, &c.' " Vol. 2, p. 205, (2d. ed. 1850). 12 2 Savage v. Whithead is the case cited by Lord St. Leonards as the authority for the observation in the text. That c^se (reported 3 Chan. Rep. 14), is as follows ; " Sir Thomas Savage, the plaintiff's father, sold land to the defendant's ancestors, and covenanted that they were free of incumbrances, and gave a collat- eral security on other lands also; and the purchaser having entered on the security for damnifications, the bill was to have the collateral secur- ity reconveyed ; whereto the defend- ants having set forth divers incum- brances on the purchased land and {inter alia) a lease of twent3'-one years of parcel thereof, the plaintiff replied generally ; and at the hear- ing, a reconveyance was decreed on satisfaction of the damnification ; and upon the report the plaintiff except- ed against the lease, that it was no incumbrance, because they had proved the purchaser had notice of it at the time of the purchase, where- 184. THE COVENANT AGAINST INCUMBRANCES. an argument could prevail, in opposition to the general rule that nothing within the terms of a deed can be excepted from its operation by parol. The rules that have been adopted as to the measure of damages for a breach of this covenant, appear, when stated as general propositions, to be very simple. The covenant being treated as a covenant of indemnity, it is settled that if the incumbrance has inflicted no actual injury upon the plaintiff, and he has paid nothing towards removing or ex- tinguishing it, he can obtain but nominal damages, as he is not allowed to recover a certain compensation for running the risk of an uncertain injury. •* Thus in Delavergne v. to the defendants insisted that the notice was not issue in the case ; yet Lord Keeper Bridgman would not conclude the infant by a slip of her counsel, in not putting it in issue up- on the replication, but ordered a trial whether the purchaser agreed to take the lands, charged with the lease." The eminent reputation of Sir Orlando Bridgman as a common- law Judge, gives great weight to any decision he is reputed to have made in that capacity. But as a Chancel- lor his reputation was less eminent. Roger North in writing of him said, "he was timorous to an impotence, and that not mended by his great age. He labored very much to please everybody . . if the case admitted of divers doubts, which the lawyers call points, he never would give all on one side, but either party should have somewhat to go away with ; " 3 Campbell's Lives of the Chancellors, 231. This case seems an example of the criticism, and is not supported by any other authority that I have been able to find. Sir William Grant, however, observed in Ogilbie v. Foljambe, 3 Merivale, 621, "Even in cases where there has been a covenant against incum- brances, it has been sometimes doubted whether that covenant would extend to protect a purchaser against incumbrances of which he had express notice." This was prob- ably in reference to the case of Sav- age I). Whithead. 1 Vane v. Lord Barnard, Gilbert's Eq. Rep. 7, per Lord Cowper ; Bean V. Mayo, 5 Greenleaf, (iMe.) 94 ; Randell v. Mallet, 14 Maine, 51 ; Herrick v. Moore, 19 Id. 313 ; Clark V. Perry, 30 Id. 151 ; Read v. Pierce, 36 Id. 455 ; Richardson u. Dorr, 5 Vermont, 20 ; Willson w. Willson, 5 Foster, (N. H.) 235; Davis v. Ly- man, 6 Connect. 255 ; Prescott v. Trueman, 4 Mass. 627; Wyman v. Ballard, 12 Id. 304 ; Jenkins u. Hop- kins, 8 Pickering, 348 ; Leffingwell v. Elliot, Id. 457 ; (S. C. 10 Id. 204, sv^ pra, p. 101) ; Tufts v. Adams, Id. 549; Brooks V. Moody, 20 Id. 476 ; Comings V. Little, 24 Id. 269 ; Pitcher v. Liv- THE COVENANT AGAINST INCUMBRANCES. 135 Norris,' the plaintiff proved the existence of several mort- gages on the premises conveyed, on which he had paid the sum of |1, 165.4(4, and the sum of $885.80 still remained due on the mortgages and unpaid by the plaintiff, but for which he claimed to recover,^ but the Court held that judg- ment should be entered only for the amount which he had actually paid. "If the plaintiff when he sues on a covenant against incumbrances has extinguished the incumbrance, he is entitled to recover the price he has paid for it. But if he has not extinguished it, but it is still an outstanding incumbrance, his damages are but nominal, for he ought not to recover the value of an incumbrance on a contingency where he may never be disturbed by it. This is the reasonable rule; for if he was to recover the value of an outstanding mortgage, the mortgagee might still resort to the defendant on his per- sonal obligation and compel him to pay it ; and if the pur- chaser feels the inconvenience of existing incumbrances, and ingston, 4 Johns. 10 ; Delavergne r. ed." See passim as to covenants of Norris, 7 Id. 358; Hall v. Dean, 13 indemnity generally, Chace v. Hin- Id. 105 ; Stanard v. Eldridge, 16 Id. man, 8 Wendell, (N. Y.) 452 ; Eock- 254 ; Baldwin v. Munn, 2 Wendell, afeller v. Donelly, 8 Coweu, (N. Y.) 405; Stewart u. Drake, 4 Halsted, 618, questioned in Aberdeen v. (N. J.) 141 ; Patterson v. Stewart, 6 Blackmar, 6 Hill, (N. Y.) 324 ; Gil- Watts & Serg. 528 ; Foote v. Burnett, bert v. Wiman, 1 Comstock, (N. Y.) 10 Ohio, 317 ; Whisler v. Hicks, 5 563; Jeffers v. Johnson, 1 Zabriskie, Blackford, (Ind.) 102 ; Smith «. Aek- (N.J.) 73. In the first of these cases erman, Id. 541 ; Pomeroy w. Burnett, the covenant was for indemnity 8 Id. 143 ; Pillsbury v. Mitchell, 5 against liability, which distinguishes Wisconsin, 21, where the text was it therefore from the others. The cited. In Reasoner v. Edmondson, 5 student will, of course, observe the Indiana, 393, where a paramount difi'erence between a covenant of mortgage had been foreclosed, this indemnity against incumbrances, and course of decision was carried so far a covenant to discharge of inoum- as to hold that although "the mort- brances. See infra, p. 153. gage did constitute a breach of the i 7 Johnson, 358. covenant that the property was unin- 2 It also appeared that the defend- cumbered, yet for this breach only ant was insolvent and unable to pay nominal damages were recoverable any part of the mortgages. till after the purchaser has been evict- 136 THE COVENANT AGAINST INCUMBRANCES. the hazard of waiting until he is evicted, he may go and satisfy the mortgage and then resort to his covenant."^ The rule that nominal damages only are to be recovered for a merely technical breach of the covenant against incum- brances is supported by the entire weight of authority.^ When, however, the incumbrance has inflicted an actual injury upon the purchaser, the rule can only be generally stated to be that the damages are sought to be proportioned to the actual loss sustained. Thus, if the incumbrance be of a character which cannot be extinguished, such as an ease- ment or servitude, an existing lease, or the like, it is said that the damages are to be estimated by the jury according to the injury arising from its continuance.** 1 The same suggestion, that the holder of the incumbrance might re- sort to other remedies against the corenantor and thus subject him to a double loss, arising from the same cause, was also made in Davis v. Lyman, 6 Connect. 255 ; Brooks v. Moody, 20 Pickering, 4 74. In Stan- ard V. Eldridge, 16 Johnson, 254, it was said, " It is supposed that this principle is not applicable here, for it is stated in the case that no bond was given ; still the mortgagor might be sued on the covenant to pay the money which is imported in every mortgage. We ought not to refine on this salutary principle, that before there can be a recovery on a cove- nant against incumbrances the cove- nantee must pay and satisfy them." ^ See the cases cited in note, supra, p. 134. A good illustration of this course of decision is afforded in Read V. Pierce, 36 Maine, 460,where the de- fendant had conveyed to the plaintiff certain premises with covenants for seizin, of right to convey, against in- cumbrances and of warranty, and some years after, the plaintiff had been evicted under a paramount mortgage. The defendant pleaded his discharge in bankruptcy, between the date of the deed and the eviction, which the Court held to be no de- fence as against the covenant of war- ranty, of which there was no breach until eviction, and therefore no ex- isting claim provable before the com- missioner of bankruptcy ; (S. P. Bush V. Cooper, 26 Mississippi, 612) ; but that as to the covenant against incumbrances the discharge was a bar, as although the covenantee had not paid off the mortgage, yet that he might have proved his claim be fore the commissioner, although only nominal damages would then have been allowed him. 3 Prescott V. Trueman, 4 Mass. 630 ; Hai-low V. Thomas, 15 Pickering, 69 ; Batchelder v. Sturgis, 3 Gushing, (Mass.) 205; Hubbard i. Norton, 10 Connect. 422 ; Willson v. Willson, 5 Foster, (N. H.) 329 ; Giles v. Dugro, THE COVENANT AGAINST INCUMBRANCES. 137 But while it may be easy to lay down these general propositions, there seems considerable difficulty as to their aj)plication. Thus, in a case in New York, the purchaser was evicted by the holder of an unexpired term of years, and it was held that " the extent of that term, and the annual value or the interest of the purchase-money, should be the measure of damages." ^ But in a recent case in Massachusetts,^ it was said that " this rule may do justice in some, perhaps in many cases, but this Court is not prepared to adopt it as a general rule. Where the incumbrance has been removed, the general rule in this Court fixes the damages at the amount paid to re- move the incumbrance. . . The rule is, that for such in- cumbrances as a covenantee cannot remove, he shall recover a just compensation for the real injury resulting from the incumbrance. Though it is desirable to have as definite and precise rules upon the subject of damages as are practi- cal, it seems impossible to establish any more precise general rule in this class of cases," and in that case it was held that the diminished value of the land by reason of the lease was not the measure of damages, unless the estate were pur- 1 Duer, (N. Y.) 335 ; see Dexter v. that part from which the plaintiff had Manley, 4 Gushing, (Mass.) 14, in/ra, been evicted, which the Supreme p. 142. In the recent case of Mills v. Court said would have been correct Catlin, 22 Vermont, 106, the incum- if a breach of the covenant for seizin brance consisted of a life estate in the had been proved, but that the evi- premises of which the purchaser found dence went to the possession and not the holder in possession, and it was to the right of property. There was held not to have been error to admit not, in fact, a covenant against in- in evidence certain tables of caloula- cumbrances in the deed, the cove- tion as to the duration of life, on nants being for quiet enjoyment and which the jury could base their esti- of warranty, but the case is here m- mate of the value of the incumbrance, troduced as illustrative of the prin- 1 Rickert o. Snyder, 9 Wendell, ciple. 423. The jury had, on the trial, a Batchelder v. Sturgis, 3 Gushing, been directed to assess the damages (Mass.) 201. by the consideration-money paid for 12* 188 THE COVENANT AGAINST INCUMBRANCES. chased for the purpose of a re-sale, and that fact were com- municated or known to the grantor. If the character of the incumbrance be such as to admit of removal, the plaintiff' is entitled to recover the amount which he has fairly and reasonably paid for its extinguish- ment.^ But in advancing this proposition, it seems that it must be taken with the qualification that this amount must not exceed the consideration-money and interest, in those States in which, on covenants for quiet enjoyment and of warranty, the limit of damages is the same as on the covenant for seizin. This was decided in Dimmick v. Lockwood,^ where the application of the rule was one of some hardship. The premises had been conveyed by two tenants in common to the plaintiff', in consideration of ^250. He made im- provements which increased the value of the land to $2,000, and afterwards one half of this property was sold under an execution upon a judgment for $3,34'4', which was held against one of the tenants in common. The plaintiff' brought an action on his covenant against incumbrances. The defendants in their plea tendered the sum of $1,'25, his half of the consideration-money paid, and contended that this must be the limit of damages. The plaintiff' urged that he was entitled to recover an amount sufficient ' Keed v. Pierce, 36 Maine, 455 ; dridge, 16 Id. 254 ; Baldwin v. Munu, Willson w.Willson, 5 Foster, (N. H.) 2 Wendell, (N. Y.) 405 ; Stewart v. 235; Davis v. Lyman, 6 Connect. Drake, 4 Halsted, (N. J.) 141; Funk 255; Wyman v. Brigden, 4 Mass. v. Voneida, 11 Serg. & Rawle, (Pa.) 150; Wyman v. Ballard, 12 Id. 304; 112; Brown v. Brodhead, 3 Whar- Chapel u. Bull, 17 Id. 221 ; Tufts v. ton, (Pa.) 104; Caneu. Allen, 2 Dow, Adams, 8 Pickering, (Mass.) 549 ; 296, per Lord Eedesdale ; Hender- Brooks i>. Moody, 20 Id. 475; Com- son v. Henderson, 13 Missouri, 162 ; ings w. Little, 24 Id. 266 ; Batchelder Snyder v. Lane, 10 Indiana, 424. V. Sturgis, 3 Cusliing, (Mass.) 205 ; As to payment of the incumbrance Waldo V. Lo'ig, 7 Johns. 173 ; Dela- after suit brought, see supra, p. 127, Tergne v. Norris, Id. 368 ; Hall v. note. Dean, 13 Id. 105; Stanard v. El- 2 lo Wendell, (N. Y.) 142. THE COVENANT AGAINST INCUMBRANCES. 1S9 to indemnify him for the damages he had sustained, and that inasmuch as, under all the authorities which have been quoted above, he would have been entitled in case he had paid the amount of the judgment to recover what he had thus paid, he should be allowed damages to the amount of the incumbrance, without regard to the amount of the con- sideration money. It was said by the Court that no similar case was to be found in the books. Those arising on covenants against incumbrances had been cases where the incumbrance was less than the consideration-money, and in them there was little difficulty. But that it had been often and conclusively settled that a purchaser could not increase his damages by reason of improvements, which the plaintiff would indirectly seek to do by the doctrine contended for. " It may be asked," said Savage, Ch. J., who delivered the opinion, " to what extent may a purchaser go under such circum- stances in creating a claim against his vendor ? Suppose the plaintiff', instead of building a house, had paid |3,000, and brought this suit to be reimbursed, he would bring himself within the language of some of the Judges who say that a purchaser is entitled to recover what he has paid, and yet I apprehend he would not be permitted to recover that amount. But suppose, again, what is probably the real state of this case, two persons are tenants in common of an acre of ground worth $100, one a wealthy man and the other insolvent ; being tenants in common, they unite in a conveyance with the usual covenants ; can the purchaser pay a lien of $3,844<, a debt due by the insolvent, and recover it from his tenants in common, who may have no earthly connection with him ^ I state this case hypotheti- cally, to show how the rule contended for by the plaintiff" may work the height of injustice to a mere stranger, . . Among all the cases cited, there is none in our own Court 140 THE COVENANT AGAINST INCUMBRANCES. where the purchaser has been permitted to recover beyond the consideration, and interest, and costs. There is none in Massachusetts, where under the covenant against incum- brances the purchaser has recovered any more, though there the rule allows a recovery for the value at the time of eviction. All the reasons of our own Judges go to limit the responsibility of the grantor to the consideration with interest and costs, and I am unwilling to go further where the principles to be established may lead to great in- justice. A subsequent case in Ohio was decided upon the same principle.^ The consideration paid was $1,020, and the purchaser had extinguished an incumbrance amounting to $1,773.95, which sum he claimed as his measure of dama- ges. But it was said by the Court, " If this be correct, then upon this covenant, a recovery to a much greater amount may be had than upon the covenant of warranty, which is ever considered the principal covenant in a deed. . . . If, in the present action, he can recover this amount with interest he recovers more than he would have done had he entirely lost the land. There would seem to be some inconsistency in this." After referring, then, to the case of Dimmick v. Lockwood, it was said : " After full consideration and careful examination, we have been led to the conclusion, that the law is as laid down in this case. That the true measure of damages in an action for the breach of the covenant against incumbrances, is the amount paid to remove the incumbrance, with interest, pro- vided the same do not exceed the purchase-money and in- terest. But in no case can a purchaser recover greater 1 In Cox V. Henry, 8 Casey, (32 to with approbation, but the point Penn. State E.) 21, this decision was was not decided, approved. In Willson v. Willson, 5 2 Foote v. Burnet, 10- Ohio, 334. Foster, (N. H.) 229, it was referred THE COVENANT AGAINST INCUMBRANCES. 141 damages for the breach of any of the ordinary covenants in his deed, than for a breach of the covenant of war- ranty." It seems to have been correctly stated in the opinion in Dimmick v. Lockwood, that there had been, at that time, no case actually decided in Massachusetts where the purchaser had been suffered to recover more than the consideration- money for a breach of the covenant against incumbrances. At the same time, judging from the tone of the remarks in recent cases in that State and others in 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 beyond the consideration-money and up to the value of the land, and however this might be in case the covenant against incum- brances were the only one in the conveyance, there would be little doubt that if it were accompanied with a covenant of warranty, the damages would be assessed as for a breach of that covenant, and by that means the purchaser have allowance for improvements.^ 1 Norton ti. Babcock, 3 Metoalf, ed. A case may, however, easily be (Mass.) 519; (see this case, in/ra, p. imagined, wliere the incumbrance is 149) ; Elder v. True, 32 Maine, 104. well known, where the consideration- Mr. Sedgwick, in that part of his money is a fair representative of the " Treatise on the Measure of Dam- value without the incumbrance, ages '' which refers to these cove- where the grantor agrees to remove nants, (p. 187,) considered the case it, and the covenant against incum- of Dimmick v. Lockwood to be open brances is inserted for the express to much observation, and greatly to purpose of making it certain that he diminish the value of the covenant wilt do so. In such a case, the ap- against incumbrances. " By surren- plication of this principle would be dering the property to the previous extremely inequitable. For it must incumbrance, a valid claim may al- not be forgotten that the severity of ways be created, to the extent of the the arbitrary rule which declares the consideration-m6ney, and to this it consideration named in the deed to seems the recovery under this cove- be the actual price paid, is but little nant is in every instance to be limit- mitigated by the permission given to U2 THE COVENANT AGAINST INCUMBRANCES. When the incumbrance is such as entirely to defeat the estate conveyed, but its consequences have not caused an the parties to contradict it by parol proof. Such evidence, after the lapse of a few years, will generally be difficult of production, in many cases impossible, and the mere bur- den of proof is always a serious responsibility." It may be observed, however, that when the incumbrance is gi-eater than the consideration- money, the damage to the purchaser can never exceed the amount of the latter, unless, as in Dimmick v. Lock- wood, he has made valuable improve- ments, or the land has increased in value ; in both of which cases, we have seen the decisions in New York, and in most of the States, allow no increase of damages by reason of those circumstances, and it seems, therefore, rather with this principle, than with the decision in that case, that fault should be found, if any ex- ists. The case of Dexter v. Manley, 4 Gushing, (Mass.) 14, may be re- ferred to in this connection, as, though the covenant sued upon was an implied covenant for quiet enjoy- ment, yet the assessment of damages was the same as if it had been a cov- enant against incumbrances. The plaintiff had been the owner of a manufactory for making pails, which, together with all the tools and ma- chinery therein, he sold to the de- fendant, who thereupon leased the premises to the plaintiff for a short term, reserving the privilege of run- ning a turning-lathe and saw in the middle room, and, instead of other rent, the plaintiff agreed to do cer- tain painting on the premises. The breach assigned of the implied cove- nant was, that the defendant had so used the machinery in the reserved room, as to hinder the plaintiff in the manufacture of pails ; and the plaintiff proved that after the lease, the defendant commenced in this room the manufacture of laths, and that the sawing of the blocks of wood for that purpose rendered the ma- chinery in the other parts of the house so unsteady as to prevent the turning of pails at all. The plaintiff contended that the amount of profits, which he might otherwise have made, was the rule of damages, and the de- fendant, denying that there was any implied covenant, or that it had been broken, or that the breach had been well assigned, contended that the plaintiff could not recover more than at the rate of the rent reserved, which was the painting of part of the house. The Court below instructed the jury that the words of leasing did import a covenant for quiet en- joyment, that the breach was suffi- ciently set forth, and that the defend- ant had a right, by the reservation, to use the saw which had been before used in the room reserved, to carry on any proper business to which the property so reserved was adapted, and that the previous mode of using the power reserved in the excepted room, was one means of ascertaining the reasonable limitation of the ri"-ht thus reserved ; and, as to the dam- ages, that neither the rent reserved, nor the amount of profits was the rule by which they were to be meas- ured ; that where the lessee was en- THE COVENANT AGAINST INCUMBRANCES. 143 eviction within the scope of the covenant of warranty, the damages are measured by the consideration-money and tirely deprived of the use of the property leased, the rule of damages was the value of the lease, or what the property would fairly rent for ; that on this subject, the rent reserv- ed, the amount of the business, and the profits of it, were proper evi- dence to be considered in estimating the damages ; that there being only a partial disturbance of the plaintiflf in the enjoyment of the lease, he was entitled only to a just proportion of the value of the lease according to the extent of the injury, and that the jury should take into consideration the fact that the property was leased with the restriction expressed. Upon writ of error, this charge was held to be correct, the Supreme Court say- ing, " This is not a case in which the law fixes any precise rule of dam- ages ; being a case of partial disturb- ance and interruption, even if the rent of the premises had been fixed and certain. But in this case the difficulty is greatly increased- This partial lease of a portion of the premises, for a short period, seems to have been one element in the adjust- ment of the purchase and sale of the real estate, and of the machinery, tools, and personal property, the con- sideration to be paid for them ; the time at which the purchaser should be put in possession ; and in what condition the house should be put and left by painting. Suppose, there- fore, that this particular demise had been made on the nominal reserva- tion of the rent of one dollar, it would not be reasonable to hold, that the damage for a disturbance must be limited to one dollar. (See Haire v. Baker, 1 Selden, (2Sf. 1'.) 361). This was, therefore, peculiarly a case where the question was what direct damage the plaintiflf had sustained by it, and it seems to us that there was no error in the Court in admitting the modes of estimating the damage and the evidence tending to establish some approximation to it, which were allowed in the present case." In Kelly v. The Dutch Church of Schenectady, 2 Hill, (N. Y.) llG,the Court said, however, '• Under a gen- eral covenant for quiet enjoyment, the rule of damages is settled in rela- tion to a purchaser who has been evicted. He recovers back the con- sideration money paid for the land, with interest on the amount for a period not exceeding six years. The price agreed upon by the parties is taken as the true value of the land, without any reference to the actual value. Following that analogy, the rents reserved in a lease, where no other consideration is paid, must be regarded as a just equivalent for the use of the demised premises. The parties have agreed so to consider it. In case of eviction the rent ceases, and the lessee is relieved from a bur- den which must be deemed equal to the benefit which he would have de- rived from the continued enjoyment of the property. Having lost noth- ing he can recover no damages. He is, however, entitled to the costs he has been put to ; and as he is an- swerable to the true owner for the mesne profits of the land for a period not exceeding six years, he may re- 144 THE COVENANT AGAINST INCUMBRANCES. interest.^ Thus in Chapel v. BuU,^ while proceedings in partition were pending- between tenants in common, one of them sold his purpart, covenanting against incumbrances. The sheriff having returned to the writ of partition that the premises could not be divided without spoiling the whole, and none of the parties taking the land at its ap- praisement, it was, under an order of sale, exposed to sher- iff's sale and a deed made to the purchaser. Under these circumstances, it was held that there was a manifest breach of the covenant against incumbrances, and that the measure of damages was the whole consideration-money and interest. This case, therefore, decided, as has been subsequently said,^ that " on a breach of the covenant against incumbrances, where the incumbrance was changed into a title adverse and indefeasible, the plaintiff' was entitled to recover the money he had paid for the land, with interest. For in such case, the estate conveyed is entirely defeated, and the pur- chaser cannot remove the incumbrance, nor can he enter upon and enjoy the land ; and it would, be idle to require him to purchase it, in order that he might be entitled to his damages for the breach of the covenant against incum- brances. Indeed, such a state of facts comes very near proving an actual eviction, and falls short of it only because there has been no actual possession by the grantee, so that he cannot be evicted. And this constitutes a difference between cases of this kind, and the common cases of mort- gage, attachment, or rights of dower, which may be cover back the rent he has paid dur- Jenkins , v. Hopkins, 8 Pickerino- ing that time, with the interest 349. ^ /ortioci, this will be the case thereon. If this rule will not always where there has been an actual evio- afford a sufficient indemnity to the tion ; Barrett v. Porter, infra, p. 145 ; lessee, T can only say, as has been Willson v. Willson, 5 Foster, (N. H.) often said in relation to a purchaser, 236. he should protect himself by requir- 217 Mass. 221. ing other covenants." 3 Jenkins v. Hopkins, 8 Pickering, 1 Chapel «. Bull, 17 Mass. 221; 349. THE COVENANT AGAINST INCUMBRANCES. 145 removed by the grantee, and the amount of his damages ascertained in that way.^ The principle which constitutes a diiFerence between the case of Chapel v. Bull and the cases in which it has been held that for a breach of the covenant against incumbrances nominal damages only can be recovered unless the incumbrance had been removed is, that in the latter case, the plaintiff is in possession of the estate, is undisturbed in the enjoyment, and may remain so ; whereas, in the former case, and that now before us, the plaintiff is not in possession, nor can he enter without being a trespasser upon one who has the title, and who is pre- sumed to be in possession according to his title." ^ A for- tiori, this principle will be applied in cases where the purchaser has been actually evicted under the incumbrance. Nor will the purchaser's right to recover the entire con- sideration money be affected by the fact that it was in his power to purchase or extinguish the incumbrance for an amount less than the consideration-money, nor even that he had refused so to purchase or extinguish it.^ " It is true," said the Court in a late case in Ohio, " the grantee, while the prior mortgage remained only an incumbrance, might 1 Thus in Wyman v. Brigden, 4 ton v. Baboock, 2 Metcalf, (Mass.) Mass. 150, the covenantee had de- 510 ; Lloyd v. Quimby, 5 Ohio State feated the levy of the covenantor's B,. 265. " If the incumbrance," said creditor, by paying the amount of the Court in Chapel v. Bull, " went the judgment, and it was held that he only to diminish the value, the amount was entitled to recover as damages of the diminution would be the meas- the amount thus paid. ure, or the sum paid for extinguish- 2 Waldo V. Long, 7 Johnson, ing the incumbrance, if reasonable ; 173; Barrett v. Porter, 14 Mass. and the grantee had chosen to ex- 143 ; Stewart v. Drake, 4 Halsted, tinguish it by purchasing of Kirk- (N. J.) 142. land. But it not being in the plaiu- 3 Stewart v. Drake, 4 Halsted, (N. tiff's power to compel Kirkland to J.) 143 ; Miller v. Halsey, 2 Green, sell, neither should he be obhged to (N. J.) 48 ; Elder v. True, 32 Maine, buy, and if he has been deprived of 104, (see this case, infra, p. 148) ; the fruits of his bargain, he should Chapel V. Bull, 17 Mass. 221 ; Nor- be restored to the price he paid." 13 146 THE COVENANT AGAINST INCUMBRANCES. have discharged it if he had possessed the pecuniary ability, and thus saved himself from eviction, but then so might the grantor ; the grantee, whether able, or willing, or not, was in no way bound to do it, and had a right to expect that the grantor would do it, while he, the grantor, was bound to do it, — bound by the obligations of his express covenant." ^ The local laws in Massachusetts and some of the other New England States regulating the foreclosure of mortga- ges provide, however, that even after entry by the mortga- gee upon the land for that purpose it may still be redeemed, within three years, by payment of the mortgage debt and costs ; and hence, although the purchaser may have been actually evicted by the mortgagee, yet if the latter hold the possession only under a conditional judgment, or if it be otherwise defeasible by payment of the amount due on the mortgage with costs, &c., the damages will be limited to that amount ; in other words, so long as the purchaser has still a legal right to regain the estate by payment of a cer- tain amount, he can recover no greater damages ; ^ as other- wise he might recover the consideration-money, and then obtain the estate by the payment of a smaller sum. Thus, where land which was subject to a mortgage, was conveyed with covenants against incumbrances and of warranty, the mortgagee had obtained a conditional judgment and been put in possession by a writ of habere facias. " But it does not necessarily follow," said the Court, " that the damages should be assessed to the value of the land ; be- 1 Lloyd V. Quimby, supra. 382 ; Foss v. Stickney, 5 Greenleaf, 2 It -would seem to be also the law (Me.) 390. This was one of the that although a right of redemption points urged in the argument for the may exist, yet that if the incumbrance plaintiff in Blanchard v. Ellis, 1 binds several properties, a party has Gray, (Mass.) 199, supra, p. 87, -with no right to redeem less than the the MSS. brief of which I have been •whole ; Bond v. Bond, 2 Pickering, kindly furnished by the reporter. THE COVENANT AGAINST INCUMBRANCES. 14i7 cause the right of redemption is open, and the plaintiff may discharge this incumhrance, and restore himself to posses- sion by paying the debt and interest and the costs of suit. Indeed, there seems to be no reason why, on such an evic- tion, which, at the election of the plaintiff, may be defeated, any more damages should be recovered than will indemnify the plaintiff; for if the whole value of the land should be assessed in damages, the plaintiff might pay the debt secured by the mortgage, and thus hold an indefeasible title, which is all he has a right to exact from the defendant. It ap- pears reasonable, therefore, that for this breach of the cov- enant of warranty,^ the proper rule of damages should be, to give the amount due upon the mortgage, with the costs of the suit upon the mortgage against the plaintiff, and thus he will be enabled to redeem the lands from the funds of the defendant. If he should not redeem, but suffer the equity to be foreclosed, then if there shall be any loss, he will have no right to complain." ^ So, in a subsequent case,^ the Court held, " If the right of redemption is not fore- closed and the land may be redeemed for less than its value, the amount to be paid for such redemption — the amount due on the mortgage — will be the measure of damages, because it will afford the plaintiff a complete indemnity. Cases may be supposed where the outstanding mortgage, though assuming the form of a paramount title, which, if not redeemed, would take the whole estate and evict the covenantee, yet being very small in amount in comparison with the value of the estate, it would be plainly for the in- terest of the owner and holder of the equity of redemption to redeem. In such case, it would be quite unreasonable to hold that the covenantee, on such an eviction, should 1 The deed also contained a cove- ^ Xufts v. Adams, 8 Pickering, nant against incumbrances, but the (Mass.) 547, Parker, Ch. J. breach was defectively set forth in ^ White v. Whitney, 3 Metcalf, the declaration. (Mass.) 89. 148 THE COVENANT AGAINST INCUMBRANCES. recover damages to the full value of the estate."^ In a more recent case ^ the law has been held the same way, and it must be taken to be settled that when the purchaser thinks proper to sue while such a right of redemption is still open on his part, his damages will be limited by the amount of the redemption-money.^ But it seems to be also settled, in accordance with a prin- ciple heretofore stated,* that the purchaser is under no obli- gation to redeem, and if he let the time necessary for that purpose elapse, and the incumbrance thus becomes changed into an absolute title, his right to measure the damages by the consideration-money will not be impaired by his not having availed himself of his right to redeem.^ 1 Citing Tufts V. Adams, supra, p. 147. 2 Donohue v. Emery, 9 Metcalf, (Mass.) 68. The covenant in this case was for quiet enjoyment, but the same principle equally applied. 3 The foregoing cases were cited with approbation in the recent case of Willson V. Willson, 5 Foster, (N. H.) 236. * Supra, p. 145. 5 Elder v. True, 32 Maine, 104. As the deed in this case contained also a covenant of warranty, the damages were held to be measured by the value at the time of eviction. This case was a hard one upon the vendor. He sold covenanting against incumbrances, but finding that an outstanding mortgage still existed, he tendered the amount to the mort- gagee, who refused to receive it, and the Court held, upon a bill filed to compel him to do so, that the mort^ gagor, having no longer an interest in the land, had no standing in Court to compel acceptance of the mortgage debt ; (see True v. Haley, 24 Maine, 297). The mortgage was then fore- closed, and the three years allowed for equity of redemption passed by, when the purchaser sued upon the covenants, (Elder v. True, supra,) and the Court held him entitled to damages as above stated. This case is indeed one of the strongest instances of the application of the rule stated in the text ; for in fact the purchaser, had he chosen so to do, could have thrown all the mortgage debt off from his own shoulders, as there had been a sub- sequent purchaser from his vendor, of another part of the land, bound by the same mortgage ; and accord- ing to the rule first established in New York and afterwards adopted in Maine and many other States, of subjecting property thus sold, to the lien of the incumbrance according to the inverse order of its alienation, (Clowes V. Dickinson, 5 Johns. Ch. 235 ; Holden v. Pike, 24 Maine, 427, and see all the cases collected in the THE COVENANT AGAINST INCUMBRANCES. 149 The remarks and authorities submitted in the chapter on the covenant for seizin, as to the recovery by the covenantee note to Aldrich v. Cooper, 2 Lead- ing Cases in Equity), the payment of the whole of the mortgage-debt could have been compelled out of the part last sold, which, it was admitted in the case, was more than sufficient for that purpose. The decision, however, though the result was a hard one, seems unobjectionable in principle. In Norton u. Babcock, 2 Metcalf, (Mass.) 510, it appeared that the de- fendant had acquired the estate by means of a judgment against its for- mer owner, by virtue of which, under local laws, the land had been set off to him, leaving howevee, iu the judg- ment debtor, an equity of redemption. Under these circumstances, the de- fendant sold the premises to the plain- tiif, "with the usual covenants of seizin and warranty, and against incum- brances." Subsequently, the equity of redemption was levied on and sold under another judgment against the same original owner, and the purchas- er of this equity gave notice to the purchaser of the property of his inten- tion to redeem, to prevent which the latter paid him $602.89, (being the amount, with interest, for which the equity had been purchased,) and then brought suit upon the cove- nants. " It appears," said Shaw, Ch. J., " by the statement of facts re- ported as found by the jury, that more than a month before the expi- ration of the right of redeeming the estate levied upon by the defendant, and by him conveyed to the plaintiff with covenants of warranty, Edward A. Phelps, the holder of this right to redeem, gave notice to the plaintiff 13* of his intention to redeem ; where- upon the plaintiff, in good faith, and in order to discharge that right to redeem, and enable himself to retain the estate, paid $602.89, in order to extinguish such incumbrance. The value of the estate at that time, as found by the jury, was $1,200 ; and the value of the improvements made upon it, $500. " It is contended for the plaintiff, that the amount thus paid by him to extinguish the incumbrance, is the measure of his dam&ges. But we think this cannot be laid down as a rule of damages, without considera- ble qualification. Where the incum- brance is of such a character, that, if not extinguished, it would take the whole estate, and it can be extin- guished for less than the value of the estate, so that the amount paid for its extinguishment would bring a less onerous burden upon the covenantor than he would have to sustain by an eviction, it being for his benefit as well as that of the owner to extin- guish it, the amount paid for extin- guishing would be the measure of damages, because it would afford the plaintiff a perfect indemnity. Other- wise, the amount thus p^id exceeds the amount which the covenantor would have been bound to pay if the plaintiff had been evicted. " For instance, we will suppose the case of a conveyance with the usual covenants against incumbrances, and covenants for warranty. There is an outstanding mortgage, and the mort- gagee is about to close and oust the grantee. He must redeem or be 150 THE COVENANT AGAINST INCUMBRANCES. of interest, and of the costs and expenses paid by him to evicted. If lie is evicted, he will have a remedy on his covenant, and recover the value of the land at the time of the eviction, and interest. Now if the value of the land be $2,000, and the amount of the mort- gage with interest, $2,500, should the grantee redeem and pay $2,500 to extinguish the incumbrance, he could not recover that sum of his warrantor, although the incumbrance could not be extinguished for less ; because the covenantor is liable only for the value of the land. But if the mortgage should amount to $1,500, and the grantee should pay that sum to redeem, it would constitute the measure of damages ; because it would afford an indemnity to the plaintiff, and bring a less charge on the covenantor than if the grantee had permitted the mortgagee to fore- close. . . In Wyman v. Brigden, 4 Mass. 150, the estate conveyed by the defendant to the plaintiff with covenants, was rightfully levied upon as the estate of Moses Gill, deceased, for $1,800. Before the year expired, the defendant (it should be plaintiff, as the case shows), never having been put out of actual possession, redeemed by paying the $1,800, it being found that the estate was worth $3,000. It was held that the plain- tiff having derived from the defend- ant all his estate in the land, includ- ing the right to redeem, at a less sum than the actual value of the land, for which he might have been liable on eviction, the difference should enure to the benefit of the covenantor, and that, therefore, the sum paid for such redemption should be the measure of the plaintiff's damages. We are then to apply this rule to the present case, and the result will be, that if the sum of $602.89, paid by the plaintiff to extinguish the right of redeeming, was less than the defend- ant would have been liable for, had the plaintiff permitted Phelps to re- deem, then that is the measure of damages for which the defendant is now liable. If it exceeds that amount, then he is liable only for the smaller amount. " Had the plaintiff declined the offer to pay, what would have been the amount of damages ? As the estate granted by the defendant to the plaintiff actually passed by the conveyance, the defendant being seized, and having good right to con- vey, subject only to redemption by his creditor, the amount of damages he would have been liable for on his covenants, was the value of the land at the time of the eviction. Gore v. Brazier, 3 Mass. 543. The value of the land, independent of the improve- ments, was then $1,200, and the value of the improvements $500 ; making in round numbers $1,700. By improve- ments, we here understand buildings or betterments, other than repairs, made by the defendant or the plain- tiff after the levy, and before the ex- piration of the year allowed by law for the redemption. The great difficulty probably arises from the fact of these expensive betterments made upon a defeasible estate. We are of opin- ion, that if they were made by the creditor after the levy, the debtor could not be charged with them on redemption, for the reasons above stated. And being annexed to the realty, and having become part of THE COVENANT AGAINST INCUMBRANCES. 151 extinguish the incumbrance, may be referred to as equally applying to this covenant.-' It may be asked, is there no case in which one entitled to the benefit of a covenant against incumbrances may recover substantial damages by reason of an incumbrance, which, although it has not yet inflicted actual loss, is yet morally certain to do so ^ For it is not always convenient for a pur- chaser to pay off an incumbrance, so as to entitle himself to recover back from his vendor the amount thus paid ; nor, on the other hand, is it in his power to compel the holder of the incumbrance to evict him, or the latter may not have the power to do so, as in the case of a mortgage not yet due. In these cases if there were no other remedy, it seems hard to say that if the purchaser do not pay off the incum- the freehold, they would have consti- tuted a part of the actual value at the time of redemption. Suppose them made by the plaintiff, they were made by him after he had ac- quired a title purporting to be abso- lute and indefeasible under the de- fendant's deed of warranty ; and we are of opinion, that as between the plaintiff and defendant, the loss must fall on the latter. It arises from want of caution in giving such a deed, when in fact he had only a de- feasible estate. It follows, that if the plaintiff instead of paying the sum he did, to extinguish this right of redemption, had yielded to it, and given up the estate, his right on the defendant's covenant would have been to recover to the value at the time of the redemption, enhanced by the value of the betterments which he made upon it, deducting the sum he would have received on redemp- tion. " We think there must be a more exact statement of the account, and assessment of the damages, upon these principles. If the sum paid by the plaintiff for a release of the right of redemption, was less than the de- fendant would have been liable for on redemption, then the sum thus paid by the plaintiff would give him a complete indemnity, and would be the measure of his damages ; but if he paid more, in order to redeem the estate, than the defendant would have been liable to him for, upon an actual redemption, then the damage on this breach of covenant cannot exceed the last mentioned sum." The difference between this case and that of Tufts V. Adams, 8 Pickering, 447, supra, p. 145, is, that in the for- mer the plaintiff had the legal estate temporarily suspended, and in the latter only an option of purchase. 1 See supra, p. 93 et seq. 152 THE COVENANT AGAINST INCUMBRANCES. brance or be not evicted under it, his damages shall be but nominal ; ■" for his improvements on the property will, of course, cease, and during the time he is waiting for the period of eviction to come round, he may perceive the estate of the party bound by the covenant becoming less able to meet the demand upon it. Yet, to allow the purchaser, under such circumstances, to recover the amount of the in- cumbrance, would seem to be at variance with the construc- tion which we have already seen has been given to this cov- enant, in treating it, so far as the measure of damages is concerned, as a covenant of indemnity.^ If indeed the covenant be treated for all purposes as one of indemnity, it would seem to follow, in accordance with the familiar principle which governs such covenants, that a recovery of nominal damages at one time would be no bar to a subsequent recovery for an actual loss.^ But, although 1 Where, indeed, tlie incumbrance has become an indefeasible title so as to extend to and defeat the entire estate conveyed, it has been seen that the damages may be measured by the consideration-money, {supra, p. 142,) but there may be many cases where the incumbrance fSlls short of this effect. 2 Supra, p. 134. 3 Thus, in Halsey u. Keed, 9 Paige, (N. Y.) 446, one who pur- chased land subject to a mortgage, by a clause in the deed assumed, as a part of the consideration, the pay- ment of the principal and interest due on it. On this covenant the vendor sued, and recovered but nom- inal damages, as no evidence was given of his having been compelled to pay anything on the mortgage since the sale. He afterwards was compelled to pay interest on it, and having again sought to render the estate of his vendor liable, it was ob- jected that the former judgment was an estoppel. The Chancellor held that if the agreement was intended as an absolute and unconditional promise to pay to the vendor the principal and interest on the mort- gage, so as to enable the latter to sue and recover upon that promise in his own name, even although he had not been compelled or required to pay anything thereon to the holders of the mortgage, then the whole con- tract was merged in the judgment upon that contract, although the dam- ages had been but nominal. But if, as the Court held, the true construc- tion of the agreement was, that the purchaser should assume the pay- ment of the mortgage to the then holders, it was a mere contract of indemnity, on which the vendor could recover nothing till he had himself been compelled to pay some- THE COVENANT AGAINST INCUMBRANCES. 153 the course of decision has certainly treated the covenant as one of indemnity so far as the damages are measured, yet it cannot be said, at least on this side of the Atlantic, that there is authority to sanction more than one recoverv for a breach of the ordinary covenant against incumbrances, even although but nominal damages were then recovered, the breach being held to be " single, entire and perfect in the first instance." ^ A distinction, however, must here be noticed between the covenant against incumbrances, in the signification thus given to it, and a covenant to discharge of incumbrances, or one similarly framed, whose object is the accomplishment of a thing certain at a certain time. Thus, in Lethbridge V. Mytton,^ which was an action by the trustees of the de- fendant's wife, on a covenant to pay ofi", within a twelve- month, certain incumbrances to the amount of £19,000, no special damage was laid or proved, and judgment having gone by default, the sheriff's jury gave nominal damages ; but this was set aside by the Court of King's Bench, Lord Tenterden saying, " if the plaintiffs are only to recover a shilling damages, the covenant becomes of no value ; " and Patterson, J., added, " the trustees were entitled to have this estate unincumbered at the end of a year from the mar- riage ; how could that be enforced, unless they could recover the whole amount of the incumbrance, in an action on the covenant X " and the same principle has been recognized and enforced in many other cases.^ thing on the mortgage, and that he of this covenant for running with could recover as often as he should the land, as to which the difference be compelled to make payment on between the English and American that account. authorities is noticed in the 8th 1 Per Chancellor Kent, 4 Com- chapter of this treatise, mentaries, 472. This expression is ^2 Barn. & Adolph. 772. used with reference to the capacity 3 Carr o. Roberts, 5 Barn. & 154i THE COVENANT AGAINST INCUMBRANCES. Such a course of decision, however, obviously depends upon the peculiar construction of the covenant. But, upon the ordinary covenant against incumbrances, it would seem that no more than nominal damages can, under the circum- stances referred to, be recovered in a court of law. By the old common law, indeed, as has been seen, a purchaser could, upon suspicion of anything wrong in his title, bring a warrantia chartce quia timet, in which, if his doubts proved to be well founded, the judgment pro loco et tempore bound all the lands of the warrantor from the date of the writ.^ But in modern times, such a course of proceeding is unknown in common-law courts. The quia timet jurisdiction of equity is, however, a very familiar one.^ Although its exercise is perhaps most gen- erally invoked in cases of anticipated waste or loss, in the preservation of property for the benefit of those in remain- der, and the like,^ or in the enforcement of a covenant that Adolph. 78 ; Booth v. Starr, 1 Con- ton, but apparently without sufficient nect. 249 ; Churchill v. Hunt, 3 De- reference to the pecuhar nature of nio, (N. y.) 321 ; Gardner v. Niles, the covenant. 16 Maine, 280 ; Jennings v. Norton, t Supra, p. 8 ; Fitzh. Nat. Brev. 134; 35 Id. 309 ; Lathrop v. Atwood, 21 Co. Litt. 100 ; Crookhey v. Wood- Connect. 123 ; Dorsey v. Dashill, 1 ward, Hobart, 217 ; and see the re- Maryland, 204 ; Hogan's Executors v. marks of Duncan, J., in Funk v. Vo- Calvert, 21 Alabama, 199 ; and see neida, 11 Serg. & Rawle, (Pa.) 116. Mr. Hare's note to Smith'''w. Howell, 2 See, passim, Story's Eq. Jurisp. 6 Exchequer, 739. Fisher v. Wor- chap. 21 ; Redd v. Wood, 2 Georgia rail, 5 Watts & Serg. (Pa.) 4 78, is an Deeis. 174; Green v. Hankinson, obvious exception to these cases, it Walker, (Miss.) 487 ; Gates v. Loftus, being there held that although a 4 Monroe, (Ken.) 439 ; Peebles v. joint owner who covenanted to pro- Estill, 7 J. J. Marshall, (Ken.) 408 ; cure the joinder of the other owner Lewen v. Stone, 3 Alabama, 485 ; in a deed conveying the land, was Patterson v. Smith, 4 Dana, (Ken.) liable in damages for a failure to do 153 ; Bradley v. Commissioners, 2 so, yet their amount was not neces- Humphreys, (Tenn.) 428. sarily measured by the consideration. 3 Chisholme v. Starke, 3 Call, Mr. Sedgwick, in his Treatise on (Va.) 25 ; Yancey v. HoUaday, 7 the Measure of Damages, p. 190, has Dana, (Ken.) 230 ; Lewis v. Hudson, seriously questioned the correctness 6 Alabama, 463; Henderson u. Vaux, of the decision in Lethbridge v. Myt- 10 Yerger, (Tenn.) 30. THE COVENANT AGAINST INCUMBRANCES. 155 the purchaser shall use or abstain from using- it in a par- ticular way,^ yet it has, in particular cases, also enforced the specific performance of covenants to indemnify. Thus in Ranelagh v. Hayes,^ one who received the assignment, of several shares of the excise, covenanted to save the assignor harmless touching the payments to the king, and afterwards the king sued the latter for money which the assignee ought to have paid, and the Lord Keeper decreed that the agreement should be specifically performed, " it being un- reasonable that a man should always have a cloud hanging over him," and referred the case to a Master, with direc- tions that tottes qtioties a breach should happen, he should report the same to the Court, which, if necessary, would direct issues of quantum damnificatiis ; and the same prin- ciple has been since recognized on both sides of the Atlan- tic.^ These cases must not, however, be deemed as having a general and broad application. It has been said of the quia timet jurisdiction of equity, that though it is one " which this Court has often exercised, yet it will be ex- tremely tender in so doing, because it materially varies the agreement of the parties at the time of the transaction."* It will be hereafter seen that a numerous and well-considered class of cases refuse to suffer a purchaser to withhold the purchase-money, by reason of an incumbrance or defect of title which comes within the scope of his covenants, unless there has been a substantial breach of the latter ; but he is left to his remedy at law, except perhaps in cases where the insolvency of the vendor has, at times, been considered as 1 Tulk V. Moxhay, 2 Phillips, 774 Cole V. Sims, 23 Eng. Law & Eq. K. 584. 2 1 Vernon, 189 ; S. C. 2 Chano, Cas. 146. 3 Lee V. Book, Moseley, 318 Pember v. Mathers, 1 Brown's Ch, K. 52 ; Gibson v. Goldsmid, 27 Eng. Law & Eq. E. 588; Champion v. Brown, 6 Johns. Ch. 406 ; Burroughs V. McNeil, 2 Dev. & Bat. Ch. (N. Car.) 297. 4 Flight V. Cook, 2 Vesey, Sr. 320, per Sir Thomas Clarke, M. K. 156 THE COVENANT AGAINST INCUMBRANCES. creating or fortifying the equity of the purchaser,-^ or where the rehef sought is incidental to the administration of assets. A fortiori, therefore, it would seem that, as a general rule, equity will not decree the specific performance of any of the covenants for title, except, as will be hereafter shown, of the covenant for further assurance.^ Thus in a case in New York,^ the complainant's bill set forth the existence of a quit rent upon the land which had been conveyed to him with all the covenants for title, and prayed that the defendant might be decreed to pay and satisfy it and have the same cancelled of record, and hold the plaintiff harmless therefrom, to which the defendant demurred, on the ground that the purchaser's remedy was at law upon the covenants ; and the Court dismissed the bill, saying, " It is said, however, that a court of equity will decree the performance of a general covenant of indemnity, though it sounds only in damages, upon the principle on which they entertain bills quia timet. Whether this be so or not, the difficulty is, that there is here no covenant of indemnity in the proper sense of the term. In one sense, all the usual covenants in a deed may be termed covenants of indemnity; that is, they are de- signed to protect the purchaser to a certain extent against the failure of title, or an eviction, or against incumbrances ; but they afford an indemnity in no other way than every other contract or agreement does, viz., by the right to re- cover damages for the breach or non-performance, and this deed contains no other than the usual covenants." So, in a case in Ohio,* where the defendant conveyed to the com- plainant with covenants that he was the lawful owner, had good right to sell, and of warranty, hnd the latter filed a bill setting forth that a widow had obtained an assignment of 1 See infra, the last chapter. 3 Talhnan v. Green, 3 Sandford's 2 See infra, Chapter VI. S. C. (N. Y.) 437. i Tuite V. Miller, 10 Ohio, 382. THE COVENANT AGAINST INCUMBRANCES. 157 dower in the premises for the payment of which a certain annual charge had been imposed upon the land, and prayed a specific performance of the covenants, the bill was dis- missed, the Court saying, " There is a well-established chancery jurisdiction over certain covenants. The Chan- cellor will exercise a restraining power where the cove- nantor, contrary to his stipulation, disturbs the tenant by his own act, and he will enforce the specific performance of the covenant for further assurance. But we find no case of interference on this side the Court in relation to the cov- enant of warranty," and other cases have proceeded upon the same principle.^ 1 In Watkins v. Owens, 2 J. J. Mar- stall, (Ken.) 142, the complainant had received a deed with covenant of warranty, and filed his bill setting forth that a suit was threatened by adverse claimants, and praying that their titles be examined and dam- ages assessed against his covenantor should his title fail, which was dis- missed by the Court, as not showing any fraud or mistake, or that his remedy on the covenant would be ineffectual. The same decision was made in Bradford v. Long, 4 Bibb, (Ken.) 225. In Barnett v. Montgomery, 6 Mon- roe, (Ken.) 327, the covenant was pe- culiarly framed. There had been an exchange of land, with a covenant giving to either party, in case of evic- tion, the election either to restore the land received as the consideration or to pay the value thereof. " It did not, therefore," the Court said, " leave the amount of the liability of the warrantor to the conclusions of law upon the general expressions of the covenant, but fixed the nature and extent of his liability." There were 14 also other circumstances in the case which rendered the interposition of equity necessary. Barnett and Wil- liam Montgomery agreed to exchange certain tracts of land, and in case either should be taken by a prior claim, the other should revert to the former owner. Montgomery died without having completed the con- tract, leaving several children, of whom Thomas Montgomery entered into an agi-eement with Barnett, covenanting, on behalf of the other heirs, to convey to him the one tract as soon as all of them should be of age, while Barnett conveyed to him and another brother the other tract, with the covenant that if they were evicted, he, Barnett, would either recohvey the first tract to them, or pay its value with interest. Adverse claimants to the land thus conveyed by Barnett established their claims in a suit which Montgomery brought against them, and he then filed a bill against his brothers and sisters and Barnett, whose object was, as re- spects the former, to obtain from them a conveyance of the tract 158 THE COVENANT AGAINST INCUMBRANCES. There are cases, however, in virhich a specific perform- ance of these covenants can, in substance, be decreed, when incidental or necessary to the administration or marshalling of assets.^ Thus in a recent case in England,^ a testator by each party, it was therefore proper for Montgomery to exhibit his bill in equity, shaped, as it is, with an aspect to finally settle the whole matter of contest." 1 Williamson v. Codrington, 1 Ve- sey, 5U ; Averall v. Wade, Lloyd & Goold, (Irish Ch.) 252, per SirE. Sug- den, Chanc. ; Calvert v. Sebright, 15 Beavan, 156 ; S. C. 15 Eng. Law & Eq. R. 125, (and see this case infra, p. 17 7) ; Haffey'a Heirs v. Birchetts, 11 Leigh, (Va.) 88 ; Kyle's Adm'r V. Pauntleroy's Adm'r, 9 B. Monroe, (Ken.) 620 ; Higgins v. Johnson, 14 Arkansas, 309. In Averall v. Wade, a party seized of several estates, and indebted by judgment, settled one of them for a valuable consideration, with a covenant against incum- brances, and subsequently acknowl- edged other judgments ; and it was held that the prior judgments must be thrown altogether upon the un- settled estates, (as to this doctrine generally, see the note to Aldrich v. Cooper, 2 Leading Cases in Equity, and infra. Chapter XII.,) and that the subsequent judgment creditors had no right to make the settled estate contribute. In HaflTey's Heirs v. Birchetts, 1 1 Leigh, (Va.) 88, land which had been conveyed with covenants for seizin and of warranty in trust to pay the grantor's note to the Bank of Virginia, of which the complain- ants were indorsers, was sold under which, on their behalf, he had cov- enanted to convey to Barnett, and as respects the latter, to compel him to comply with his covenant. " Un- der these circumstances," said the Court, " and especially as the title to the land which was to be con- veyed by Montgomery is in the heirs of his father, we can have no doubt as to the propriety of his applying to a court of equity for the purpose of obtaining the title from the heirs of his father, so as to enable him to comply with his covenant to Barnett, and for the purpose of compelling Barnett, under his covenant of war- ranty, to surrender his claim to the land which Montgomery bound him- self to cause to be conveyed, or to pay therefor according to the import of the warranty contained in this deed. The propriety of such an ap- plication will be the more striking when it is recollected that if, instead of bringing his bill in equity, Mont- gomery had brought suit at law upon the covenant of warranty and re- covered compensation for the lost land in damages, the judgment might have been enjoined by bill in equity by Barnett, upon the grounds of de- fects and difficulties in Montgom- ery's title, thereby drawing part of the same matter now in contest be- fore a court of equity for its consid- eration and decision. To avoid this circuity of action, and to enforce a specific execution of the covenants 2 Cox V. Bernard, 8 Hare, 310. THE COVENANT AGAINST INCUMBRANCES. 159 had, before his death, made several voluntary assignments of annuities, mortgage debts, &c., (of which no notice was given to the grantors of the annuities, or mortgagees, dur- ing the testator's lifetime,) in trust for himself for life, with remainder to the plaintiff. These assignments contained covenants for further assurance, and the bill, alleging .that it was doubtful whether the assignments were valid, charged that, if invalid, the property comprised in them ought to be administered as part of the personal estate of the testator. The Vice-Chancellor, after remarking that the covenant created a debt, and that if the testator died solvent the cove- nant must be performed, said that the court of chancery un- dertook to administer the estates of deceased persons, and it was the duty of the Court to do so, if practicable, with- out sending parties to courts of law, of which there was no necessity in this case. He did not say the Court would spe- a prior deed of trust, whicli had been made to secure a previous debt. The grantor died, and the complain- ants, being forced to pay the note, filed a bill against his heirs, claiming to be subrogated to the bank, and to charge the heirs to the extent of the assets descended to them for a breach of their ancestor's covenant, and a de- cree was made accordingly. " It is said, hovpever," said the Court, " that the right of the parties to damages for breach of this covenant could only be asserted at law, and that a court of equity could not properly estimate them. As a general prin- ciple this is true, but here the plain- tiffs having no rights but by the equitable principle of substitution, could assert no remedy at law. They could only get relief in equity. Moreover, although it is generally true that damages should be inquired of by an issue at law, yet here that could not be necessary, since the damages were fixed and already cer- tain . The 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 incum- brancers to the full value of what had been paid for him to their preju- dice. In this view of the matter an issue must have been superfluous." Higgins V. Johnson, supra, seems to have been decided mainly upon the ground that in that State, " where the creditor is compelled to resort to the heir for payment of the debts of the ancestor, his remedy is in chan- cery rather than at law." 160 THE COVENANT AGAINST INCUMBRANCES. cifically perform the covenant, but all the covenantee required was damages, and those damages the court of chancery could, in such a case, estimate and give better than a court of law.^ It was not necessary for him to decide, and he did not decide whether, without the covenant for further assurance, the voluntary instrument would prevail ; but the covenant being there, the Court would fasten upon it and hold that the assignment operated to bind the estate. In a recent case in New York, however, it was decided that equity would not enforce the specific performance of a covenant against incumbrances, when contained in a volun- tary conveyance.^ A testator, in consideration of natural affection, made a conveyance of certain land to the plaintiiFs, his grandchildren, and covenanted that they were free from all incumbrance. It, turned out, however, that there was a mortgage on the premises, and the plaintiiF brought suit against the executors, to compel them to pay it off out of the assets of the estate, " being," the report says, " in the nature of a bill in equity for a specific performance of the cove- nants in the deed." On a reference, the report was in favor of the plaintiffs, but this was set aside by the Court, on the ground that although equity would sustain voluntary con- veyances so far as they were executed, yet that it would not enforce executory agreements or covenants, and much reli- ance was placed upon the case of Jeffreys v. Jeffreys' (one of the class that had overruled the well-known case of Ellis V. Nimmo,* decided by Sir E. Sugden, while Chancellor of Ireland), in which a father had conveyed, by voluntary set- tlement, certain freehold estates to trustees for the benefit of his daughters, and by the same instrument had covenanted to surrender certain copyhold estates, subject to the same 1 See, as to this, Williamson v. Cod- S. C. R. 48 7, and see Hervey v. Aud- rington, and Haffey's Heirs v. Bir- land, 14 Simons, 531. chetts, supra, p. 158. 3 i Craig & Phillips, 138. 3 DuToll V. Wilson, 9 Barbour's * Lloyd & Goold, 333. In that THE COVENANT AGAINST INCUMBRANCES. 161 trusts. Upon his death, on a bill to compel specific execu- tion of the trusts, it was decreed that the settlement was valid as to the freeholds, but void as the copyholds for want of a consideration. " This decision," said the Court, " if law, fully sustains the position of the defendants here, who admit the validity of the deed as a conveyance, but deny the obligation of the covenants which it contains." ^ It may, however, be doubted whether the rule laid down in this case did not go beyond that enforced in the authori- ties which have overruled Ellis v. Nimmo. In all of them, the subject of the executory part of the conveyance was sep- arate from and independent of the subject of that which was executed. As to the former, the deeds were intended to as- sure the, future transfer of estates^ and specific performance was refused because the instruments were no more than ex- ecutory agreements to convey. But with respect to cove- nants for title, which are intended to protect the enjoyment of that part of the contract which is already executed, it is conceived that they are but incidental and necessary to it ; case a post-nuptial agreement in ton, 8 Simons, 324 ; Jeffreys w. Jef- writing (not under seal), by which a freys, 1 Craig & Phil. 138; Dillon v. father undertook to make a provis- Coppin, 4 Mylne & Craig, 64 7; but ion for his child, was specifically ex- see the more recent case of Keke- ecuted, being founded on a meritori- witch v. Manning, 1 De Gex, Mac. ous consideration. The Chancellor &Gord. 176; S. C. 12 Eng. Law & argued, with great force, that inas- Eq. K. 120. much as equity did, before the stat- l This expression must not, of ute of uses, enforce a covenant to course, be taken as broadly as its stand seized, based upon natural terms would seem to imply. The affection, which w£is at that time as " obligation of the covenants " was, much a contract in fieri as any exec- in a court of law, as complete as if utory contract at the present day, it the consideration had been a valuable was impossible to refuse to decree one ; see Hervey v. Audland, 14 Si- performance of such an agreement as mons, 531 ; for a consideration was thai before the Court, because of the imported by the seal, and it will be lack of a valuable consideration, remembered that it was only in The cases which have overruled this equity that such a technical effect decision, are Holloway v. Heading- was disregarded. 14* 162 THE COVENANT AGAINST INCUMBRANCES. and that if equity will deem to be valid an executed volun- tary conveyance, it will also lend its jurisdiction, in cases otherwise proper for its exercise, to enforce the protection of the party claiming under it. It should also be observed that, in a very recent case^ the English decisions upon whose authority that in New York was based, have received so decided a qualification as almost to amount to their re- versal. The cases in which a covenantor has invoked the aid of equity, will be considered in a subsequent part of this trea- tise,^ while for a fuller consideration of the jurisdiction of equity in enforcing the performance of covenants on behalf of the purchaser, the student is referred to the last chapter.^ 1 Kekewitch v. Manning, 1 De Gex, which, however, approves the deci- Mac. & Gord. 176; S. C. 12 Eng. sions which have been shaken by this Law & Eq. K. 120. The student recent case, will find an able review of this case, ^ Chapter XU. and of those which have preceded it, 3 Chapter XIU. For the specific in an article on " Voluntary Assign- performance of the covenant for fur- ments " in the American Law Reg- ther assurance, see infra, Chapter ister, Vol.'l, p. 38d ; the author of VI. THE COVENANT FOR QUIET ENJOYMENT. 163 CHAPTER V. THE COVENANT FOR QUIET ENJOYMENT. This covenant, which differs materially from those we have been considering", has been defined to be an assurance against disturbance consequent upon a defective title.^ While in England it is sometimes called the sweeping covenant, its place has been here, to a great extent, supplied by the covenant of warranty, which seems to be considered the principal or sweeping covenant in American convey- ances. It is, however, on both sides of the Atlantic, the only covenant generally inserted in a lease,'' and, in Penn- sylvania at least, and perhaps elsewhere, in ground rent deeds. Its form, when set forth at length, is usually in these words : " And that it shall be lawful for the said 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 hereby conveyed or intended so to be, with their and every of their appurtenances, and to have, receive and take the rents, issues and profits thereof, to and for his and their use and benefit, without any let, suit, trouble, denial, eviction, 1 Howell V. Richards, 11 East, 641. quiet enjoyment ; this is considered 2 The word " demise " in a lease, in the chapter on " Implied Cove- is generally held in this country, as nants ; " infra, Chapter X. in England, to imply a covenant for 164i THE COVENANT FOR QUIET ENJOYMENT. interruption, claim or demand whatsoever, of, from or by him, the said grantor, or his heirs, or any other person or persons whomsoever." ^ The covenant, as generally expressed in ground-rent deeds in Pennsylvania, is, " that the said (grantee), his heirs and assigns, paying the said yearly rent and taxes or extinguishing the same by purchase, and performing the covenants and agreements aforesaid, shall and may at all times hereafter forever, freely, peaceably and quietly have, hold and enjoy all and singular the premises, &c., and re- ceive and take the rents and profits thereof, without any molestation, interruption or eviction of him, the said (grant- or), or his heirs, or any other person or persons whom- soever. When, however, as is usual, it is intended that the cove- nant is to be limited to the acts of the grantor, instead of the words " or any other person or persons whomsoever," should be inserted, " or by or with his or their acts, means, consent, default, privity or procurement." ^ It is obvious, however, that any apt words showing the intent of the parties, will create such a covenant ; and on I The form of this covenant is 2 It is also customary in leases, as taken from the statute 8 & 9 Vict, well as in ground-rent deeds, to pre- c. 119, already referred to, and may cede the covenant with the phrase, be deemed to be the most approved that "he, the said (lessee or grantee), and modern form. It differs slightly paying the said rent hereby reserved, from that given by Mr. Piatt. Piatt shall, at all times, quietly enjoy ; " on Covenants, 312. A very good but it has been held that this does short form is as follows : " And that not amount to a condition precedent, the said hereditaments and premises and that the covenantor will be held shall be held and enjoyed accord- liable on the covenant, even although ingly, without let, suit, eviction or the rent should be in arrear. Daw- disturbance by the said vendor, or son v. Dyer, 5 Barn. & Adolph. 584 • his heirs, or any other person whom- Hayes v. Bickerstaff, 2 Modern, 35. soever." Hughes' Practice of Sales 3 Por the construction which has of Real Property, Vol. 2, p. 9, Ap- been given to these concluding words, pendix. see infra, p. 172. THE COVENANT FOR QUIET ENJOYMENT. 165 this side of the Atlantic, it is often, if not usually, expressed in the briefest manner.^ Although the words of the covenant may purport to in- demnify the purchaser from any interruption on the part of the grantor, or any other person, yet this must be under- stood to mean such interruption only as may take place under paramount title.^ There were several old authorities which held that a covenant thus expressed extended to all interruptions and disturbances whatsoever, whether lawful or tortious ; ^ and although authority was not wanting in opposition to this doctrine,* the law seems not to have been settled until the case of Hayes v. Bickerstaff.® That case decided that the covenant, however generally expressed, must be understood as applying merely to the acts of those claiming by title ; because, in the first place, the grantor does not expressly covenant against tortious acts of stran- gers ; secondly, it would be unreasonable that he should do so, as he could neither foresee nor prevent, them ; thirdly, the law gives the covenantee a remedy against the wrong- doer ; fourthly, the covenantee might thus have a double remedy and satisfaction, one against his covenantor, and the 1 Thus, " to hold free and clear title," citing Year Book 26 Hen. from me, my heirs, &c., and from all VIII. 3, a miscitation for 26 Hen. other persons whatsoever," was in ATII. p. 11. So in Year Book 22 the recent case of Mldgett v. Brooks, Hen. VI. (Pasoh.) pi. 26, "If a lease 12 Iredell, (N. Car.) 147, held to be be made for a term of years by deed, a covenant for quiet enjoyment. so that the lessor is chargeable by 2 Howell V. Richards, 11 East, 641. writ of covenant, if a stranger who 3 See Mountford v. Catesby, 3 has no right oust the termor, yet he Dyer, 328, and the cases therein shall not have a writ of covenant referred to. against his lessor. But if he to 4 Brooke's Ab. Garranties, pi. 1. whom the right belongs oust the " If one lease for years and covenant termor, then he shall have writ of to warrant the land, and the lessee be covenant against his lessor." ousted by wrong, he shall not have ^ Vaughan, 118; S. C. but not covenant ; otherwise if it be by elder S. P., 2 Modern, 34. 166 THE COVENANT FOR QUIET ENJOYMENT. other against the wrong-doer ; fifthly, it would enable him to injure the covenantor by colluding with a stranger to make a tortious entry ; and lastly, because the express words of the covenant were that the covenantee should lawfully enjoy the premises without the let or hindrance of the covenantor or any other person. These unanswerable reasons have since been consistently acquiesced in, and this case has long been recognized as settled law on both sides of the Atlantic.^ 1 Tisdale v. Essex,^ Hobart, 85 ; Wotten V. Hele, 2 Saunders, 178, n. ; Nokes V. James, Cro. Eliz. 675; Lewis V. Smith, 9 Mann. Gr. & Scott, 610; Greenby u. Wilcoelis, 2 Johnson, 1 ; Folliard v. Wallace, Id. 402 ; Kelly V. Dutch Church, 2 Hill, (N. Y.) HI; Brick V. Coster, 4 Watts & Serg. (Pa.) 499 ; Spear v. Allison, 8 Har- ris, (20 Penn. State E.) 200 ; Yancy V. Lewis, 4 Hen. & Munf. 395 ; Rantin X). Robertson, 2 Strobhart, (S. Car.) 366 ; Beebe v. Swartwout, 3 Gilman, (111.) 180, (see a very elaborate argu- ment of counsel and opinion in that case as to the nature of the covenant for quiet enjoyment generally) ; Da-- vis V. Smith, 5 Georgia, 2 74 ; Sur- get V. Arighi, 11 Smedes & Marsh. (Miss.) 96. Dudley v. Folliott, 3 Term, 584, was a peculiar case. Land which had been conveyed with covenants for seizin and of quiet enjoyment " against all and every person or persons whomsoever," had been con- fiscated by the State of New York during the Revolution. The plain- tiffs argued, first, that the defendant had no title to the premises, they having been lawfully confiscated by the State of New York, whose inde- pendence, as a part of the Union, had subsequently been recogaized ; and secondly, that under the author- ity of Mountford v. Catesby, (supra, p. 165,) the covenant extended not only to acts done by persons having or claiming title, but to an eviction even by a wrong-doer ; but the Court " having no doubt about the law as it respected the first question, and thinking it would lead to the discus- sion of improper topics, would not permit it to be argued. And as to the second question, they thought it equally clear ; for even a general war- ranty, which is conceived in terms more general than the present cove- nant, has been restrained to lawful interruptions," anfl judgment was given for the defendant. In Frost v. Earnest, 4 Wharton, (Pa.) 86, a lease had been made with a covenant for quiet enjoyment with- out the molestation or interruption of the lessor or any other person whom- soever, upon which the lessee, on be- ing evicted by the municipal corpo- ration who opened a street through the demised premises, brought cove- nant against his lessor. But the Court held that this was not such an interruption as should properly come within the scope of the covenant. " The covenant for quiet enjoyment THE COVENANT FOR QUIET ENJOYMENT. 167 The rule, however, is subject to three exceptions : — In the first place, the covenant extends to all acts of the covenantor himself, whether tortious or otherwise.^ Thus in a case in Maine,^ premises were conveyed in mortgage with a covenant of warranty to one who neglected to record his mortgage until after the same premises had been con- is designed to indemnify the vendee for a lawful eviction by reason of de- fect of title in the vendor and any disturbance thereupon. . . But if the vendee lose the premises, not because of defect of title in the vendor, but on the very ground that the vendee has a good title from the vendor, which the State, by virtue of its sov- ereign power, authorizes to be taken from him, stipulating to pay him for it, on what principle can he have re- course to the vendor on such a cove- nant ? If the covenant is broken, the vendor is liable upon it, though he may neither have received, nor been entitled to receive anything ; for the vendee's remedy in that case, does not depend on the vendor's having received any compensation ; it arises by the mere fact of the evic- tion and loss of the property. The case then would present the aspect of a vendee, who on eviction, is enti- tled to be paid the value of his loss by the party evicting him, and at the same time may recover from the ven- dor for breach of covenant. This cannot be ; the covenant never was designed for such an event, and is not applicable to it. It resembles the case of eviction of the vendee by a third person who is a tort-feasor. He may have his action against such tort- feasor ; and therefore it has been de- cided that the vendor is not liable on this covenant. The same reason ap- plies when the vendee is ousted by the sovereign power of the State under its right of eminent domain, or under reservations in the first settlement of the country, exercised according to the constitutional in- junction of compensating every man whose property is taken for the pub- lic use. The remedy of the vendee is to look to the legislative provisions made for his indemnity, and not to the covenant for quiet enjoyment which was introduced into convey- ances for purposes entirely differ- ent." The same point had also been previously decided in Ellis v. Welch, 6 Mass. 250. 1 Cave V. Brookesby, W. Jones, 360 ; Andrews's case, Cro. Eliz. 214 ; Corus V. , Id. 544 ; Crosse v. Young, 2 Shower, 425 ; Lloyd v. Tomkies, 1 Term, 671; Wotten v. Hele, 2 Saund. 180, n. ; Sedgwick v. HoUenback, 7 Johns. 376 ; Seaman & Browning's case, 1 Leonard, 157; Mayor of New York v. Mabie, 3 Ker- nan, (N. Y.) 156 ; O'Keefe v. Ken- nedy, 3 Cushing, (Mass.) 325. In Crosse v. Young, Shower reports a long argument of his own on this point, "which I had prepared to urge, but was prevented by a ready judgment for the plaintiff by the whole Court." 2 Curtis V. Deering, 12 Maine, 499. 168 THE COVENANT FOR QUIET ENJOYMENT. veyed in fee by the mortgagor to a purchaser, who, by recording his deed, took the title clear of the mortgage. Upon covenant brought against the mortgagor, it was urged that the covenant extended only to elder and better titles, to those then existing and not to those subsequently acquired,^ but the Court held that a general covenant against all claims was limited by construction of law to lawful claims, because the law is a sufficient protection against wrong-doers. But all lawful claims, except such as are derived from the plaintiff, were within the terms and should be within the operation of the covenant. There was no propriety in applying the rule that there should be proof of elder title, to evictions founded upon the subsequent acts of the covenantor which could not be resisted.^ It is obvious, that the acts of the servants or agents of the covenantor are, if committed at his command, as much within the scope of the covenant as if they were his own acts.^ > Such is undoubtedly the law. " All the Judges agreed that when a man bound himself and his heirs to warranty, they are not bound to warrant new titles of action accruing through the feoffee, or any other, after the warranty made, but only such titles as are in esse at the time of the warranty made." Greenleaf 's Executor y. W -, Dyer, 42 a. 2 This decision was cited in the re- cent case of Maeder v. City of Caron- delet, 26 Missouri, 114, where the facts were somewhat similar, but there was an express provision in the lease that nothing therein con- tained should be construed to imply a covenant for quiet enjoyment. 3 Seaman v. Browning, 1 Leonard, 157. In the recent case in Missis- sippi of Surget V. Arighi, 11 Smedes & Marsh. 96, the breach laid in an action on a covenant for quiet en- joyment, brought by a lessee against his lessor, was the destruction of the premises and expulsion of the tenant by a mob, " moved by exasperation and excitement by them entertained towards the defendant." It was urged for the plaintiff that this was equiva- lent to an eviction by the lessor him- self; but the Court held that it was not sufficient that the mob were in- duced to do the act, but that the les- sor must do the act or excite others to do it, not indirectly but directly. He must be the agent who acts with a view to that particular result. This was the necessary consequence of the principles stated in the authorities in THE COVENANT FOR QUIET ENJOYMENT. 169 It is said, however, that the acts of the covenantor must be done under assumption of right, as distinguished from mere trespasses.-^ Thus it seems to have been thought, that if a landlord should enter upon the demised premises for the purpose of sporting, the tenant could not maintain cove- nant for such an act ; ^ but where one sold a house with a covenant that the purchaser should enjoy it without the lawful let of the grantor, and the latter locked up a pew ap- pertaining to the house, it was held that this was as strong an assertion of right as could well be imagined.^ So in a recent case in New York, where the corporation had leased a certain wharf, it was held that the entry upon the premises by the agents of the corporation, and the as- sumption by them of the control of the berths and locations which ships were to occupy thereat, was a breach of the implied covenant for quiet enjoyment in the lease, — that if the character of the act were such as reasonably to show that the corporation acted under an assumption of title, the action could be sustained.* regard to covenants for quiet enjoy- Hele, 2 Saunders, 180, n. ; Sedgwick ment. The language employed in y. HoUenbeck, 7 Johns. 3 76 ; O'Keefe the covenant in Dudley v. Foliott, v. Kennedy, 3 Gushing, (Mass.) 325. (supra, p. 166,) was even broader 2 Per Ashurst, J., in Lloyd w. Tom- than in the present case ; and yet it kies, 1 Term, 673, and per Ld. Ellen- was held only to be a covenant for borough in Seddouu. Senate, 13 East, quiet enjoyment. It was not suffi- 72. oient that the mob were actuated by 3 Lloyd v. Tomkies, 1 Term, 671. feelings of malice or revenge against * Mayor of New York v. Mabie, 3 the defendant ; and unless, therefore, Kernan, 151. The question whether it should appear that the acts of the the acts complained of as a disturb- mob were constructively those of the anoe of the rights of the lessee were lessor himself, the case would fall done in the lawful exercise of a power within the rule that the covenant to regulate the disposition of vessels did not extend to the tortious acts in the public docks, under any ordi- of others. nances upon the subject, did not arise 1 Corus's case, Cro.Eliz. 544; Crosse upon the evidence in this case, and V. Young, 2 Shower, 425 ; Lloyd v. was expressly reserved. Tomkies, 1 Term, 671 ; Wotten v. The law upon this point is thus 15 170 THE COVENANT FOR QUIET ENJOYMENT. Secondly, if the covenant be expressly against the acts of a particularly named person, it will not be restrained to his laivful acts, since the covenantor is presumed to know the party against whose acts he covenants, and may therefore be reasonably expected to stipulate against all of them.-^ stated by the late Baron Piatt in his treatise on Covenants. " In a case in RoUe's Abridgment (Davie v. Sa- cheverell, p. 429, pi. 7,) it is laid down that a covenant by I. S. that his les- see shall enjoy the lands peaceably and quietly, without any lawful let, disturbance, ejectment or molester tion of the said I. S., is not broken by his entry on the lessee as a mere trespasser, and without any lawful title. Subsequent decisions, however, have taken a distinction between a tortious entry by a stranger and by the covenantor himself; and it is now admitted law that although the cove- nant only stipulates for quiet enjoy- ment without the lawful interruption of the covenantor, his heirs, or assigns, yet he cannot avail himself of the subterfuge that his entry was unlaw- ful, and he, therefore, a trespasser, to avoid the consequences of his own wrong ; for, as against the party him- self, the Court will not consider the word lawful, nor drive the covenantee to an action of trespass, when by the general implied covenant in law, the vendor had engaged not to annul his own deed, either by a rightful or an illegal entry." 1 Foster v. Mapes, Cro. Eliz. 212 ; Perry v. Edwards, 1 Strange, 400 ; Nash V. Palmer, 5 Maule & Selw. 374; Fowle v. Welsh, 1 Barn. & Cress. 29; Patton u. Kennedy, 1 A.K. Marshall, (Ken.) 389 ; Pence v. Du- val, 9 B. Monroe, (Ken.) 49. In Nash V. Palmer, Lord EUenborough said : " The rule has been correctly stated at the bar, that where a man cove- nants to indemnify against all per- sons, this is but a covenant to indem- nify against lawful title. And the reason is, as it regards such acts as may arise from rightful claim, a man may well be supposed to covenant against all the world ; but it would be an extravagant extension of such a covenant, if it were good against all the acts which the folly or malice of strangers might suggest, and there- fore the law has properly restrained it within its reasonable import, that is, to rightful title. It is, however, dif- ferent where an individual is named, for there the covenantor is presumed to know the person against whose acts he is conte^it to covenant, and may therefore reasonably be expected to stipulate against any disturbance from him, whether from lawful title or otherwise." And where in a cove- nant for quiet enjoyment, an excep- tion as to the acts of certain specified persons is introduced, the covenant will apply to the acts of all others not included in the exception ; as in Woodruff V. Greenwood, Cro. Eliz. 517, where a tenant in tail with re- version to the Queen in fee, leased for twenty-one years, covenanting that the lessee should enjoy it against all persons without the interruption of any besides the Queen, her heirs and successors, existentibus regibus THE COVENANT FOR QUIET ENJOYMENT. I7I Thirdly, where the plain intention of the covenant, mani- fested by express words, is to protect the covenantee against claims of every description, as where it is against all claim- ing ov pretending to claim.-' At one time there seems to have been some doubt as to whether a disturbance or interruption by reason of a suit in equity came within the scope of a covenant for quiet enjoy- ment against disturbances generally.^ This question is now well settled in the affirmative,^ but Lord St. Leonards has remarked, " It is customary to expressly extend covenants for title to equitable charges, disturbances, &c."* With like caution, Mr. Preston has observed,^ that it is also usual to insert the words, " without any lawful let," Sec, so as to preclude the possibility of question as to the extent of the covenant. The law is now, however, so well settled as to both these points, as to render these precautions apparently unnecessary, and in the more modern conveyances they are not observed. The covenant as expressed by the words, " without any let, interruption, &c., of the vendor or any person or per- sons whomsoever," is what is termed a general, absolute or unlimited one. But when it is intended that the covenantor is to be responsible only for the acts of himself and those vel reginis Anglim, and the Queen Hunt v. Danvers, T. Raymond, 371, granted the reversion to another, as to the report of this case ; and in who, upon the death of the tenant in Winch's Entries, 118, will be found tail without issue, evicted the lessee, a declaration in which a disturbance who brought covenant and obtained by a chancery suit is assigned for judgment, " for none are excepted breach, and Winch was himself one besides the Queen and her succes- of the Judges at the time when Selby sors, and not her patentee." v. Chute was decided. 1 Chaplain v. Southgate, 10 Mod- 3 Calthorp v. Heyton, 2 Modern, ern, 383. 54 ; Hunt v. Danvers, T. Raym. 370. 2 Selby «. Chute, l^rownlow, 23 ; * 2 Sugden on Vendors, 512. see, however, the remark made in ^ Shep. Touch. 166, Preston's ed. 172 THE COVENANT FOR QUIET ENJOYMENT. claiming under him, the following clause is added, " or any person or persons whomsoever claiming, or to claim the same by, from, through or under him, them or any of them, or by or with his or their acts, means, consent, default, privity or procurement."^ These words have been made the subject of several de- cisions which it is proper here to refer to. It has been held that the words " acts and means," im- port something actually done by the person against whose acts the covenant is made. Thus, where one holding under a lease which reserved a power of re-entry in case of the exercise of any trade or calling on the demised premises, made an under lease, in which he covenanted against inter- ruption by him, or " by or through his acts and means," and the under lessee let the premises again to one, who, in alleged ignorance of the condition, commenced the business of an auctioneer, and the original landlord re-entered, it was held that the eviction was not vdthin the words of the covenant ; the word " acts " meant something done by the person against whose acts the covenant was made, and the word " means " had a similar meaning, something proceed- ing from the person covenanting. The eviction was not produced by anything proceeding from the covenantor, but from the person in possession of the premises, and judg- ment was given for the defendant.^ The word " default " was once held to extend to an 1 It must be observed, that in Eng- the covenant against incumbrances land, the words " by or through his generally precedes that for quiet en- or their acts,'' &c., are not usually joyment, and the words referred to inserted after the covenant for quiet are, when employed, generally in- enjoyment, but at the close of the serted at the end of the latter cov- covenant against incumbrances,which enant. is there, as it were, annexed or sup- 2 Spencer u. Harriot, 1 Barn. & plemental to the former ; see supra, Cress. 45 7. p. 109. This is not the case here, — THE COVENANT FOR QUIET ENJOYMENT. 178 arrear of quit-rent which the purchaser was obliged to dis- charge, although not accruing while the covenantor was owner of the premises. It was said that if it happened to be in arrear in his lifetime, it was a consequence of law that it was of his default in respect of the party with whom he covenanted.^ But this decision seems open to much observation.^ 1 Howes V. BrusMeld, 3 East, 491, per Lord EUenborough. 2 Lord St. Leonards has said of it : " It was argued by the counsel for the vendor, and apparently on very solid grounds, that to make the ven- dor liable to the arrear of this rent under his covenant would be tanta- mount to a decision tBat the cove- nant, although limited, should extend to the acts of all the world. The clear intention of the parties was that the vendor should covenant against his own acts only, and yet it should seem that the argument of the Court would apply as well to a mortgage or any other incumbrance created by a prior owner, as to an arrear of quit-rent in payment of which a former occupier made de- fault. The reader should be cautious how he applies this decision to cases arising in practice, as it may lead him to draw conclusions not author- ized by prior decisions." 2 Sugden on Vendors, 518. It certainly never was imagined in Pennsylvania, where ground-rents are and quit-rents were formerly common, that a vendor was ever held liable to his purchaser under a limited covenant against in- cumbrances, by reason of arrears of ground-rent, accruing for a longer period than he himself possessed the premises, — though if the covenant were a general one, it would, of 15 » course, be otherwise. Hamond v. Hill, 1 Comyn, 180. The same author remarks, that care must be taken to distinguish this case from Cavan v. Pulteney, 2 Vesey, Jr. 644, where the covenan- tees were evicted by reason of their covenantor not having suffered a common recovery, which would have given him a fee-simple, of which in the deed he recited that he was seized ; and the consequent eviction by the remainder-man was therefore by the covenantor's " default ; " since " the act required to make good the title was within the compass of his own estate, and within his own pow- er ; therefore the omission to do it was a default by him within the limit of a covenant strictly restrained to his own acts, and he assumed, as far as his own acts or defaults extended, to be seized in fee. In Howes v. Brushfield the seller assumed in like manner to be seized free from in- cumbrances, but he did not assume to be entitled free from incumbran- ces by whomsoever created ; the two cases would have been similar, had it not been in the seller's own power to have suffered the common recov- ery in Cavan u. Pulteney. If a third party's concurrence had been neces- sary, which the seller must have pur- chased, and that had been deemed obligatory upon him within his cove- 174< THE COVENANT FOR QUIET ENJOYMENT. In a subsequent case,^ one who had received from a ten- ant for life and his son, remainder-man in tail, a lease for ninety-nine years, underlet the premises with a covenant for quiet enjoyment against himself and his heirs and all per- sons lawfully claiming under them, "or by or with his or their acts, means, consent, neglect, default, privity or pro- curement." The tenant in tail and his son both died, and the next remainder-man evicted the underlessee, who there- upon brought his action on the covenant. The Court said that the eviction being by a paramount title could not be brought within the covenant unless by means of the words " neglect or default " of the covenantor, who cer- tainly might have required his lessors, the tenant in tail and his son, to have suffered a common recovery ; but that before a breach could be assigned on these words, it must be averred that the covenantor had the power or means of procuring such common recovery, and that he neglected or omitted to do so. " With such an alle- gation made and proved, an action of covenant might possi- bly be maintainable, but not without it. It may, indeed, show a want of discretion in the covenantor that he took leases under such a defeasible title, but a neglect and a de- fault seem to imply something more than the mere want of discretion with respect to his own interests — something like the breach of a duty or legal obligation existing at the time ; these words, in their proper sense implying the not doing some act which he ought to havp done, and which he had the power to do, and the not preventing or avoid- ing some danger to the title, which he might have pre- vented or avoided." So, in a recent case,^ where a lessor covenanted against nant, then the case would have been ham, 431, and 2 Moore & Scott the same as Howes v. Brushfield." 599. 2 Sugden on Vendors, 618. 3 Stanley v. Hayes, 3 Queen's I Woodhouse v. Jenkins, 9 Bing- Bench, 1015. THE COVENANT FOR QUIET ENJOYMENT. 175 any interruption of or by himself, " or any other person or persons lawfully claiming or to claim by, from or under liim, them or any of them," and the premises were dis- trained upon for arrears of land-tax, due by the defendant before the making of the lease. But the Court held that " this distress was certainly not a proceeding within the term of the covenant. Let, suit, disturbance or interruption by the defendant, or others claiming by, from or under him are different things from the injury here complained of, those words implying a claim of title from the lessor. Her6 the claim was against him." ^ So, in a case in Massachusetts, where the defendant covenanted " against the lawful claims and demands of all persons claiming by, through or under him, and against no other claims and demands," it was held that a prior claim for taxes, assessed against the property before it came to the defendant, did not come within the covenant ; it was not a claim " by or under" him.^ 1 In Ireland v. Bircham, 2 Scott, the lessors should already have con- 207, the eviction was by the original tracted with, or should thereafter con- grantor of a lease for non-payment tract to supply, provided that such a of rent by the lessee, who had as- quantity should be left as would be signed the term to the plaintiff, cove- sufficient to supply the mill for twelve nanting for quiet enjoyment. The hours a day, with a covenant that question whether this was a disturb- the lessee should enjoy without inter- ance " by, from or under them," ruption of the lessors, or any persons although argued by counsel, was not claiming by their acts, means, con- decided, as the case went off upon an- sent, default, privity or procurement, other ground ; see infra, Chapter X. The breach assigned was that the 2 West V. Spaulding, 11 Metcalf, defendants, at divers times between 556. The case of Blatchford v. The the execution of the lease and the Mayor of Plymouth, 3 Bingham, N. C. bringing of suit, caused and procured 691, seems to have been principally to be drawn off large quantities of decided upon the insufficiency of the water, &c. But on the trial it ap- breach assigned, though, from ex- peared that nothing had been done pressions used by the Court, it may since the making of the lease, but be doubted whether they thought the that there were outlets to the stream, covenant was broken at all. The de- granted to the parties many years fendants demised a mill stream, ex- before by Acts of Parliament. It cept so much water as should be suf- was held that upon this evidence the fioient for the supply of persons whom breach was badly assigned. The evi- l76 THE COVENANT FOR QUIET ENJOYMENT. Where, however,^ a fine was levied of a wife's estate, with a joint power to husband and wife to declare the uses, which they did by reserving a power of leasing and ap- pointing a remainder, and the husband then made a lease not warranted by the power, covenanting against interrup- tions by him, or any one claiming by, from' or mider him, and the lessee was afterwards evicted by the remainder-man on account of the defective execution of the lease, it was contended that the declaration of appointment and the fine were to be considered as one instrument ; that the husband only joined in the fine for conformity, and the latter being considered as the act of the wife (since persons taking un- der a power claim under the one who creates, and not under the one who executes it), the remainder-man took his estate 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 was limited, and the remainder-man " certainly claimed under him, within the meaning of this covenant. Undoubtedly the husband had covenanted against his own acts, and the new limitations were created by one of his acts." So, in a later case, where one, upon his marriage, set- tled an estate upon himself for life, with remainder to his first and other sons in tail, with a power to the tenant for life to grant leases for years, determinable on three lives, dence might have suited a breach that the covenant, the terms of which persons having rights under prior were made to guard against acts of grants had diminished the quantity of the defendants individually, acts of water. If the plaintiff meant that he persons claiming under them, and was injured by contracts entered into acts occasioned by their means and by the defendants, previously to the default. See Dexter i>. Manley, 4 demise, the breach should have been Gushing, 14, cited supra, p. 142. framed accordingly; andTiudal, Ch. Swasey v. Brooks, 30 Vermont, 692. J., remarked, that the evidence did i Hurd v. Fletcher, Douglas, 43. not fall within the triple condition of THE COVENANT FOR QUIET ENJOYMENT. 177 and afterwards granted a lease of part of the estate for the lives of three persons, and covenanted that the lessee should quietly enjoy during the said term without the interruption of the lessor, his heirs or assigns, or any other person claim- ing any estate, right, or interest by, from or under him or any of his ancestors, the lease not being in conformity to the power, on the death of the lessor, his eldest son brought an ejectment and evicted the lessee; it was urged in an action brought by the heirs of the latter against the former as heir of the lessor, that the defendant could not be said to claim under his father, but in his own right as tenant in tail under the marriage settlement ; but the Court were clearly of opinion,^ that the defendant was a person claiming under the lessor, within the meaning of the covenant for quiet en- joyment.^ 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 tJ-ust to convey to his father for life, remainder to himself for life, with remainder to his first and other sons in tail, with power of leasing for twenty-one years. The lessor subsequently°demised part of the premises for three lives, and covenanted for quiet enjoyment during that time, " without any let, suit, denial, interruption or disturbance of or by him, his heirs or assigns, or any other person or per- sons claiming by, from or under him or them," On the death of the lessor, his eldest son brought an 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 was not subject to any liability by reason of 1 Upon the authority of Hurd v. term which the lessor purported to Fletcher, supra. grant by his deed, and not, as con- 2 Evans w.Vaughan, 4 Barn. & Cress, tended for the defendant, a term con- 261; S. C. Dowl. &Eyl. 349. It was tinuing only for the life of the lessor. also held that by the words " during 3 Calvert v. Seabright, 15 Beavan, the said term," was understood the 156 ; 15 Eng. Law & Eq. K. 125. 178 THE COVENANT FOR QUIET ENJOYMENT. the covenants. On exception to his report, it was urged on behalf of the estate, that the eldest son did not claim under the lessor, but under the creator of the power, viz., his father.^ But the Master of the Rolls asked, was it not the intention that the estate should be continued to the lessee during the whole term for which it was granted, and did not the covenant affirm that the grantor had neither done nor would do anything to prejudice the title of the lessee to that term 1 If he held that the covenant only affected such estate as the lessor had, or was confined to the persons claiming under him any interest he might then have in the land, he should be giving a qualification to an unrestricted covenant. In many cases such a covenant was a great security for the title, and he was of opinion that those words ought to be construed in their largest possible terms, and that when a person having a power to appoint, executes that power, the appointee does, in fact, obtain the estate " by, from or under " the appointor, and consequeiitlj, that any eviction by the appointee comes within the terms of a cove- nant for quiet enjoyment as against all persons claiming " by, from or under " the grantor. So in another very recent case,^ the defendant assigned a term of 1,000 years to trustees in trust to raise by way of mortgage a sum of money for the payment of his debts. The trustees accordingly- assigned the term on mortgage, and the defendant subse- quently granted a lease of part of the lands, covenanting with the lessee for quiet enjoyment during the term, without the ' There was also another ground Bench, (New Ser.) 206. The Court ef defence. Sir John had covenant- seemed to entertain some doubt ed " so far as in his power lay, or he whether the facts in this case amount- lawfully might or could," and it was ed to an eviction, (see infra, Chapter urged that the covenant was then VII.), but none whatever that they qualified by this clause. See the case constituted a molestation and disturb- noticed on this point and classified ance within the words of the cove- with others, infra, Chapter X. nant. 2 Carpenter v. Parker, 3 Common THE COVENANT FOR QUIET ENJOYMENT. 179 let, suit, trouble, denial, eviction, molestation or disturbance of the lessor or any person claiming by, from or under him. The lessee was afterwards compelled to give up pos- session to the mortgagee, and the Court had no hesitation in deciding that there was a disturbance by one claiming through and under the defendant within the meaning of the covenant for quiet enjoyment. As to the words " means, title or procurement," in an old case, a fine having been levied of certain lands to the husband and wife and his heirs, the husband made a lease, covenanting against interruption or disturbance " by him or his assigns, or by any other person or persons by his means, title or procurement." After, the death of the hus- band, the wife ousted the lessee, who brought covenant against her as his executrix. On demurrer it was objected that the. title which the wife claimed was not by any title or means derived from the lessor, but from the cognuzor of the fine. But the Court said, " The question is if these words of the covenant (by any person or persons by his means, title or procurement) are to be referred to the act, viz., the disturbance, or to the title under color of which the disturb- ance is made ; for if it is to be referred to the disturbance and not to the title, the entry of the wife cannot be a breach of the covenant, for the disturbance is not by means of the husband, for he is dead, nor by liis title, for the wife is in by survivorship, nor by his procurement ; but I hold that the words do not refer to the act of disturbance only, but to the title under color of which the disturbance was made, and they are to be construed as if it had been said that no disturbance should be made by any person by force of any title acquired by his means, and so it is a breach of the covenant."-^ 1 Butler V. Swinerton, 2 Kolle, The report in Cro. Jac. is less clear 286 ; Palmer, 339 ; Cro. Jac. 657. and full than in either Rolle pr Pal- 180 THE COVENANT FOR QUIET ENJOYMENT. So a. recovery of dower by the wife of the covenantor is within the covenant for quiet enjoyment against all claim- ing frona or under him.-' As it thus appears that the scope of the covenant for quiet enjoyment depends, in many cases, upon the particular words employed in its expression, it will be perceived that we cannot lay down a universal rule as to what will cause its breach. It has been constantly confounded with the covenant of warranty ; so much so, that in some cases a covenant has been spoken of as a covenant for quiet enjoy- ment, while it was in fact a covenant to warrant and defend.^ It is somewhat generally said in the United States, that " the covenants for quiet enjoyment and of warranty are mer, and of these the report in the former is the better. Lord St. Leon- ards has said of this case : " It may be proper to mention, that the case of Butler V. Swinerton which (to borrow an expression of Lord Ken- yon's) is the magna cliarta of the liberal construction of covenants for title, is also stated in Sheppard's Touch. 171, which goes on to state, " and so it is also if A purchase land of B, to have and to hold to A -for life, the remainder to C the son of A in tail, and after A doth make a lease of this land to D for years, and doth covenant for the quiet enjoying, as in the last case, and then he dieth ; and then C doth oust the lessee, in this case this was held no breach of the covenant," and for this posi- tion Swan's case, M. 7 and 8 Eliz. is cited, and no reference is made to any other report of the case. Now this case is in direct opposition to the case of Butler v. Swinerton ; but from other reports of Swan's case. Mo. 74, pi. 204; Dy. 257, pi. 13; Bendl. 138, pi. 208 ; and And. 12, pi. 25, it appears that there was no actual covenant in the lease, but merely a covenant in law on the words " concessit et demisit" and, therefore, the Judges thought the action did not lie because the cove- nant determined with the estate of the lessee." 2 Sugdeu on Vendors, 517. As to the covenants implied from the words concessit et demisit, see infra. Chapter X. 1 Anonymous, Godbolt, 333 ; Shep- pard's Touch. 171. " Otherwise," it was said, "if the woman who de- manded dower had been the mother of the lessor ; the action would not then have lain against the heir be- cause she did not claim by, from or under the lessor.'' '■i Martin v. Martin, 1 Devereux, (N. Car.) 413 ; Coble v. Wellborn, 2 Id. 388. THE COVENANT FOR QUIET ENJOYMENT. 181 broken only by an eviction,"-' but in order to show this not to be universally true of the former, it is only necessary to refer to its form, as constantly used, stipulating against " any let, suit, interruption, disturbance," 8cc? There would seem, however, to be little doubt that wher- ever a plaintiff could recover for a breach of the covenant of warranty, he could, under the same circumstances, recover for a breach of the covenant for quiet enjoyment, in cases where both covenants were extended or restricted to the acts of the same person. A reference to the law upon the subject of eviction, which is attempted to be treated in the chapter on the covenant of warranty,^ will, it is hoped, show what is considered in this country a breach of that cov- enant. The covenant for quiet enjoyment, like that for further assurance and of warranty, is capable of being taken ad- vantage of by the heir, the devisee or the assignee of the land to which it relates, an attribute of considerable im- portance, which is treated in considering the extent to which covenants for title run with the land.* As respects the pleading in an action for a breach of this covenant, it is not sufficient that the plaintiff should merely 1 See Chapter YII. held to be a breach of a covenant 2 Such a distinction was noticed by that the defendant would do nothing the late Ch. J. Gibson, in a recent to molest, hinder or prevent him in case. " A covenant for quiet enjoy- the quiet possession or enjoyment of ment," said he, " which resembles the the lands, Andrews v. Paradise, 8 modern covenant of warranty, differs Modern, 318; so of an interruption from it in this, that the former is of a way of necessity through a broken by the very commencement house, Morris v. Edgington, 3 Taun- of an action on the better title ; " ton, 24 ; the building of a house on Stewart v. West, 2 Harris, (14 Penn. part of the premises, Kidder v. West, State R.) 338. So the erection of a 3 Levinz, 167, &c. gate in a lane through which the ^ Chapter VII. plaintiff had a right of way, was * Infra, Chapter Vni. 16 182 THE CfOVENANT FOR QUIET ENJOYMENT. negative the words of the covenant,'' and the case of Hayes V. BickerstafF, already cited,^ sufficiently illustrates the im- portance of averring- that the disturbance was under lawful title, as otherwise there would be nothing to show that the defendant was not a mere trespasser, and the declaration would be bad on demurrer.^ It is also well-settled that the declaration must state the paramount title to have existed before and at the time of the execution of the conveyance,* otherwise non constat that the interruption was not under title derived from the plaintiff' himself.^ Of course, how- ever, these rules do not apply to an interruption made by the covenantor himself or those claiming under him,^ nor to a case in which the covenant is against the acts of a particu- larly named person. But having averred that the interruption was made under lawful title existing before and at the time of the convey- ance to the covenantee, it is not necessary that that title should be set forth particularly,^ for although it is in gen- 1 Blanchard v. Hoxie, 34 Maine, 6 Supra, p. 167, &c. 37S ; Wait v. Maxwell, 4 Pickering, ' Proctor v. Newton, 2 Levinz, 37 ; 87, and see passim all the cases re- Buckley v. Williams, 3 Id. 325 ; Jor- ferred to infra, under this head. dan v. Twells, Cas. Temp. Hardw. 2 Vaughan, 118 ; see supra, p. 165. 161. It was earnestly contended in 3 Claiming title is not sufficient; Foster v. Pierson, 4 Term, 617, and Norman v. Foster, 1 Modern, 101; Hodgson «. The East India Company, " Habens titulum would have done 8 Id. 278, that the plaintiff should your business," said Hale, Ch. J. have set forth the adverse title under 4 Frost V. Earnest, 4 Wharton, which he was expelled ; but Kenyon, (Pa.) 86 ; Naglee w. IngersoU, 7 Barr, Ch. J., said, in the latter of these (Pa.) 205, 206. cases, "I do not know how it was 5 Kirby v. Hansaker, Cro. Jac. possible for him to set forth the par- 315 ; Skinner v. Kilbys, 1 Shower, ticulars of the titles of the persons 70 ; Jordan v. Twells, Cas. Temp, who entered upon him ; such knowl- Hardw. 1 72 ; Wotton v. Hele, 2 edge could only be acquired by an Saunders, 181, and see the authorities inspection of title deeds to which he collected in the note ; Eraser v. Skey, could have no access." See also note 2 Chitty, 647 ; Kelly v. The Dutch to Browning v. Wright, 2 Bos. & Church, 4 Hill, (N. Y.) 105 ; Naglee Pull. 14. V. Ingersoll, 7 Barr, (Pa.) 205. THE COVENANT FOR QUIET ENJOYMENT. 183 eral necessary for the plaintiff to examine the title under which the interruption was made, so far as to satisfy him- self that it was not tortious, and that his remedy must be, not against the party making it but against the covenantor, yet if he were to attempt to set out the particulars of this title, it might, if not correctly pleaded, be successfully trav- ersed by the defendant.^ On the trial the burden of proof is obviously thrown directly upon the plaintiff, in the first instance. There is some conflict of authority in this country as to the measure of damages upon a breach of . this covenant, as respects improvements and increased value of the subject of 1 A form of a breach of the cove- nant for quiet enjoyment is thus giv- en in 2 Greenleaf s Evidence, § 243. " After reciting the execution of the deed and the covenant in its very words, ' Now the said plaintiff in fact says, that he has not been permitted so to possess and enjoy the said prem- ises ; but on the contrary he avers, that, after the making of the said deed, to wit, on the day of , one E. F. who at the time of making said deed had, and ever since, until the molestation of the plaintiif hereinafter mentioned, con- tinued to have lawful right and title to said premises, did enter into the same, and did thence eject, expel, and remove the plaintiff, and hold him out of the possession of the same, contrary to the form and effect of the covenant aforesaid, etc.'" This form is concise in the extreme. One more full and precise will be found in 2 Chitty's Pleading, 545, 546, containing also an averment of costs incurred in defending an eject- ment, and also of expenses in im- provements, (see as to the latter, Lewis V. Campbell, 3 J. B. Moore, 35, and infra, Chapter VII.) Another still more full, in which the breach assigned is an interruption by per- sons claiming common of pasture, will be found in 5 Wentworth's Pleading, 56, 60. Another, in 5 Wentworth's Pleading, ^3, where, on a covenant for quiet enjoyment and against incumbrances, the breach assigned was that the defendant suf- fered the ground rent to fall in arrear, per quod the plaintiff was obliged to pay it to avoid distress. A good form will also be found in Lewis v. Camp- bell, 3 J. B. Moore, 35 ; S. C. 8 Taunton, 715. See also Dexter v. Manley, 4 Gushing, 14 ; Evans v. Vaughan, 4 Barn. & Cress. 261, and the cases to which reference has been made on p. 172, &c. Some old forms may also be found in 2 Ven- tris, 60; Robinson's Entries, 171; Winch's Entries, 112-118; Hobart, 34. As to what will constitute an eviction and how it may be set forth, see infra, Chapter VIL 184 THE COVENANT FOR QUIET ENJOYMENT. the purchase ; and as there is no distinction taken and per- haps none exists, as to this point, between the covenant for quiet enjoyment and that of warranty, the authorities upon the subject will be found in the chapter which treats of the latter covenant.^ The measure of damages, where the disturbance does not extend to the enjoyment of the whole estate, and, therefore, partakes rather of the character of an incumbrance, has al- ready, for greater convenience, been considered in the pre- ceding chapter.^ 1 Chapter VH. a Supra, pp. 134, 142, &e. THE COVENANT FOR FURTHER ASSURANCE. 185 CHAPTER VI. THE COVENANT FOR FURTHER ASSURANCE. The covenant for further assurance is, perhaps, less extensively used in the United States than- most of the other covenants for title, and it would seem that this must be attributed rather to custom, based upon the inartificial char- acter of early conveyances, than to any want of usefulness in the covenant itself or difficulty as to its application.^ In the more modern conveyances in England, this cove- nant is generally expressed in the following form : " And also that he, the said (vendor), and his heirs, and all per- sons rightfully claiming any estate or interest in the said premises, &c. or any part thereof under or in trust for him, will, from time to time and at all times hereafter, at the request and costs of the said (purchaser), his appointees, heirs or assigns, make, do, acknowledge, enter into, execute and perfect, or cause or procure to be made, done, acknowl- edged, entered into, executed and perfected, all such further acts, deeds, conveyances and assurances whatsoever, for the 1 In Piatt on Covenants, p. 340, it to the sufficiency and security of the is said, " This covenant is deemed latter."' It would seem, however, that of great importance, since it relates this proposition is rather broadly both to the title of the vendor and to stated ; as, if such were the case, the the instrument of conveyance to the covenant for further assurance would vendee, and operates as well to se- supersede most or all of the other cure the performance of all acts covenants for title. See as to this, necessary for supplying any defect in . infra, p. 188. the former, as to remove all objections 16* 186 THE COVENANT FOR FURTHER ASSURANCE, further, better, more perfectly or satisfactorily granting, releasing and confirming or otherwise assuring the said hereditaments and premises and every or any of the same, with their appurtenances, to the use and in manner afore- said, according to the true intent and meaning of these presents, as by the said purchaser, his heirs, appointees or assigns, or his or their counsel in the law, shall require, and as shall be tendered to be done and executed." ^ The use of such a covenant is obvious, particularly as respects the remedy in a court of equity upon a bill for its specific performance, to which, indeed, it would seem, recourse is more frequently had than to an action for dam- ages in a court of law. In considering the scope of this covenant, it must first be observed that by the term "all such further acts,"^ &c. ' Hughes's Practice of Sales of Real Property, Vol. 2, p. 4, Appen. The form given in Piatt on Cove- nants, p. 341, is, as were all the cove- nants until recently, much longer. In this country, the covenant when employed is not unfrequently in the following form : " And further, that the said party of the first part and his heirs, shall and will, at any and at all times here- after, at the request and costs of the said party of the second part, his heirs and assigns, make and execute any and every other deed or assur- ance in the law, for the more sure and effectual conveyance of the said premises hereby conveyed with the appurtenances, to the said party of the second part, his heirs and assigns, that the said party of the second part, his heirs or assigns, or his, their, or her counsel, shall or may devise, advise or require." It is evident, however, as has been said with respect to the other cove- nants, that any apt words showing the intent of the parties will be con- strued as a covenant, as in Davis v. Tarwater, 15 Arkansas, 288, where a deed, which was sufficiently formal as a conveyance, with an habendum clause declaring that the grantee should hold the premises to his heirs and assigns forever, but containing a covenant to make a good and suffi- cient deed with a warranty of title when required, was held to be a present conveyance of the fee with a covenant for further assurance, and not a mere agreement to con- vey. 2 In the older and more verbose form in which this covenant used to be expressed, the words generally were, " all such further lawful and reasonable acts," &c. THE COVENANT FOR FURTHER ASSURANCE. 187 is meant such acts as the law deems necessary and practi- cable ; if it be 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 assigned was that the defendants had not directed trustees to do a certain act, the Court of Exchequer held that the direction not being either necessary to be made on the part of the defendant, or obligatory on the trustees, if made, was not an act within the meaning of the covenant.-' So, where in a case in Maryland, a bill was filed to compel a vendor to execute, by virtue of his covenant for further assurance, another deed to be prepared under the direction of the Court, merely alleging that the deed already executed did not con- vey a clear title to the land in question with all its advan- tages as they might be enjoyed under the original patent, the bill was dismissed with costs, as neither in it, nor at the hearing, had the complainant shown any specific defect or ambiguity in the deed he had already accepted.^ So the act required must be practicable. Thus where in debt on a bond for the performance of a covenant to make such reasonable assurances as the purchaser should devise, and the plaintiff required that a married woman should levy a fine, the defendant pleaded that the Justices of the Assize refused to take the cognizance of the fine because she was not compos mentis, and the Court held that the condition was not broken.^ Nor will the covenant be deemed to be broken if its per- 1 Warn v. Bickford, 9 Price, 4.3 ; sic ut lahorare non potuit. Et tout le S. C. 7 Price, 550. Court sembleront que malady excusera 2 Gwynu V. Thomas, 2 Gill & Johns, cest obligation, car ne fail reasonable (Md.) 420. request en temps quant la feme nefuit 3 Pet and Callys' case, 1 Leonard, able de traveller, et issint si la feme 304. So in an anonymous case, Moore, soit grossement enseini sic ut ne poit 124, where " le verity fuit que al traveller." temps del request, la feme fuit egrotant 188 THE COVENANT FOR FURTHER ASSURANCE, formance be prevented by the neglect of the covenantee ; and in a case where husband and wife, seized in right of the latter, covenanted that they had good right to convey the lands and to make further assurance within seven years, and the wife died within that time and her right descended to an infant, so as to render performance impossible, the Court held that it was the plaintiif's own fault ; that the assurance should have been demanded in the lifetime of the wife, and that her decease, which prevented the perform- ance of the covenant, was the act of God.^ In considering what acts may be reasonably required under this covenant, we find that it has been said in Eng- land, that a purchaser may, as of course, require a fine to be levied,^ or a judgment or other incumbrance to be re- moved.^ It is conceived, however, that this proposition must be taken with some qualification, depending either, first, on the scope of the other covenants in the deed, or, secondly, on the nature of the estate conveyed. It has been seen that all the other covenants for title are either general, that is, extending to all paramount titles and incumbrances, or limited, extending only to defects of title 1 Nash V. Ashton, T. Jones, 195 ; of modern authority, equity will not Skinner, 42. " But PoUexfen, of decree a specific performance by a the same side with Williams, showed husband, of a covenant made by him another breach, viz. -. that the wife to procure his wife to levy a fine or was under age at the time of the otherwise execute any lawful con- covenant, as appears by the verdict ; veyance to bar her right in his estate she then had no power to convey the or in her own estate, nor consequent- estate according to the covenant, ly will it decree specific performance And this was held a manifest breach, of a covenant for further assurance, and therefore judgment given for the where the wife has not properly joined plaintiff, nisi." in the deed. See passim, 2 Story's 2 Middlemore v. Goodale, Cro, Car. Eq. Jur. § 731 to 735. 503 ; Boulney v. Curteys, Cro. Jao. 3 2 Sugden on Vendors, 542 ; Piatt 251 ; Innes v. Jackson, 16 Vesey, on Covenants, 344, citing Heath, J. 366. It should, however, be here ob- in King u. Jones, 5 Taunton, 427. served, that, according to the weight THE COVENANT FOR FURTHER ASSURANCE. 189 or incumbrances created by the vendor. But the covenant for further assurance has the same form of expression, whether the other covenants which accompany it are general or lim- ited ; — it is an undertaking that the vendor will execute such further assurances as may be deemed necessary by the purchaser. If the other covenants in the deed are general, — if their breach will be caused by reason of an incum- brance not created by the vendor, — then it is conceived that the proposition above stated must be taken to be cor- rect, and that the purchaser may, instead of suing at law upon his other covenants, invoke the aid of equity to re- move the incumbrance. But if the other covenants are limited, and the purchaser would therefore be without remedy at law upon them by reason of the incumbrance not having been created by the vendor, it is apprehended that it would be contrary to principle and to the meaning of the contract between the parties, that the vendor should be compelled to remove an incumbrance which he had been unwilling to covenant against. Secondly, the purchaser's right may depend on the nature of the estate conveyed. There is a class of cases hereafter to be noticed, which decide that although the covenants for title may be general, yet when it plainly appears that the conveyance is but of a limited estate or interest, the covenants will be restrained and limited by the subject-matter conveyed.^ Under such circumstances, it would be inequitable that the purchaser should, by virtue of a covenant for further assurance, require the conveyance to himself of any greater estate or interest. It is believed that upon examination of the authorities, none will be found to contradict these positions. Thus in the old case of Taylor v. Debar, " a purchaser of the crown lands in the time of the late wars, sells part to the plaintiff, 1 See infra, Chapter X. 190 THE COVENANT FOR FURTHER ASSURANCE. and covenants to make further assurance. He, on the king's restitution, for £300, had a lease for years made to him under the king's title. The decree was, he should assign his term in the part he sold." •* Here the original contract obviously appears to have been that any confirma- tion which might thereafter be made of this then doubtful title, should enure to the benefit of the purchaser. So in the recent case of Smith v. Baker,^ where one believing that he, had the fee-simple, subject to his mother's life estate, conveyed it to trustees for the benefit of creditors, covenanting for title and for further assurance, and it turned out that the mother had the fee-simple, which on her death descended to him, it was clearly held that he must be compelled to convey the after-acquired estate.^ " It may be," said Vice-Chancellor Bruce, ■' that he did not know what his interest was at the time, but upon the mere cir- cumstances which appear here, he cannot be allowed to deprive his creditors of an estate which he disposed to them for valuable consideration. It is not sufficient for him to say that he had no interest then ; — that he acquired sub- sequently the estate which he said he had, and which he may or may not have supposed himself to have had at the time of the execution of the deed. . . I see enough to sat- isfy me that there was a contract for value, by deed, fo7' the sale of this specific estate to the creditors, and I cannot re- lieve the party from the effect of that contract."* 1 Taylor v. Debar, 1 Chanc. Cas. Edwards v. Applebee, 2 Brown's Ch. 274. This is the entire report of the R. 652, note; Pye v. Daubuz, 3 Id. case, which is also reported in 2 595. Chanc. Cas. 212, in the same words. * The case of Bensley v. Burdon, 2 1 Young & Collier's Ch. 222. 2 Sim. & Stuart, 519, will be found 3 And where the estate is bound on examination to harmonize with by a specific covenant for further as- this principle. One reciting that he surance, a purchaser may, in case of was entitled to an estate in remainder^ the bankruptcy of the vendor require charged it with an annuity, and to further assurance from his assignees, secure the same conveyed it to trus- THE COVENANT FOR FURTHER ASSURANCE. 191 . Upon this subject Lord St. Leonards has remarked, " If the title prove bad, and the defect can he supplied ly the vendor, the purchaser may file a bill in equity for a specific performance of the covenant for further assurance.^ And a vendor who has sold a bad title, will, under such a cove- tees by deed of lease and release, covenanting for further assurance. He subsequently charged it with an- other annuity, and conveyed the es- tate to another set of trustees, reciting the former deed. It turned out that he had, at the time of these convey- ances, no estate whatever, but sub- sequently, a life estate descended to him, which he conveyed to the sec- ond annuitant. The first annuitant having become bankrupt, his assign- ees filed a bill against the second annuitant and both sets of trustees, praying that a deed might be exe- cuted by all necessary parties, for charging the life estate with the pay- ment of the first annuity ; and it was argued (by Sir E. Sugden) that it was quite clear that if a person as- sumes to sell an estate in which he had no interest and he afterwards acquired an interest, the Court would, on a bill filed against him by the pur- chaser, compel him to execute a con- veyance, and that a purchaser from him with notice would stand in the same situation as the vendor. But the bill was dismissed by Vice-Chan- cellor Leach, (though without costs, considering the nature of the defend- ant's title, and that, upon the ground on which the Court proceeded, the bill might have been demurred to,) on the ground that the law had already given the complainants all that they asked hy their bill, the first deed oper- ating by way of estoppel as against the grantor and those claiming under him with notice. This decision, it will be perceived, went beyond the position claimed by the complain- ants ; and although it was affirmed on appeal, yet the Chancellor (8 Law Jour. Ch. 85, and not 5 Russell,) " put it on this solely, that it was an allegation of a particular fact by which the party making it was con- cluded ; " per Ld. Tenterden in Eight V. Bucknell, 2 Barn. & Adolph. 278. The case has, on the point of legal estoppel, been since corrected by Bight D. Bucknell, and Lloyd v. Lloyd, 2 Connor & Lawson, 592, the lat- ter of which cases was decided by Sir E. Sugden when Chancellor of Ireland, who had himself, in Bensley V. Burdon, argued in favor of the equitable estoppel. The student will find two articles in the London Jurist on this subject. Vol. 5, p. 859, and 1170, and see also infra, Chapter IX. It has, however, been also held, that a contra'ct which carries an equity to have it decreed in specie, ought to be free from all objection, and specific performance of a cove- nant for further assurance was there- fore refused where the estate, being a reversion, was bought of an expect- ant heir, at an undervalue, in the lifetime of his father, and the purr chaser was left to his remedy at law. Johnson v. Nott, 1 Vernon, 271. 1 See Gibson v. Goldsmid, 27 Eng. Law & Eq. R. 588. 192 THE COVENANT FOR FURTHER ASSURANCE. nant, be compelled to convey any title which he may have acquired since the conveyance, although he actually pur- chased such title for a valuable consideration."^ These propositions are undoubtedly correct, if the cove- nant for further assurance is the only one in the deed, or if the other covenants are unlimited, or general. But if the covenant for further assurance is either expressly or by im- plication limited or restrained by other covenants or by the grant itself, then they would seem to have rather too broad an application.^ It is conceived, therefore, that the true view to be taken of the purchaser's right to obtain in equity a conveyance of an after-acquired estate or the removal of an incumbrance by virtue of his covenant for further assurance is, that 1 2 Sugden on Vendors, 541. In support of this, tlie learned author cites Taylor v. Debar, which, as we have already seen, was clearly a case in which the conveyance of the after- acquired title was properly compella- ble, and refers to Seaboum v. Pow- ell, 2 Vernon, 11, in which there was no covenant for further assurance at all. The case was, that Austin and his wife being assignees of a term of years, mortgaged it. Austin became insolvent and ran away, and Haynes, who had the real title,- in compassion for Austin's wife, made a lease in trust for her, whereupon the plain- tiffs, who were sureties on the bond which accompanied the mortgage, filed a bill, alleging " that the mort- gagee had a plain equity to have the benefit of that title which was but a graft into that stock from which he derived, and that the defendant had, since the taking of the estate, (and so it appeared on proof,) paid the interest to the mortgagee, and that therefore the plaintiffs, being but sureties in the bond, had an equity to have the benefit of the mortgage, and of that new-acquired title, to save them harmless against the bond, or else the trustees ought to be de- creed to make a new mortgage to the mortgage'e ; " and the Master of the Rolls deeming the estate made by Haynes to be a graft into the old stock, decreed the trustees to make a new mortgage to the mortgagee. 2 That the efi"ect of procuring the vesting of the after-acquired estate is not a peculiar attribute of the cove- nant for further assurance, is shown by that class of cases which in many of the United States has decided that where an estate is conveyed with a covenant of warranty, an after-ac- quired estate absolutely vests in the purchaser by estoppel, and that this result must in general be denied to any other covenant than that of war- ranty. See infra, Chapter IX. THE COVENANT FOR FURTHER ASSURANCE. 193 where the covenants for title are not limited or restrained either by the acts of the vendor or by the particular estate conveyed, the purchaser has a right, under the covenant for further assurance, to require in equity the conveyance of a paramount title or the removal of an incumbrance ; but where the other covenants are limited to the acts of the . vendor or restrained by any particular estate, the purchaser will have no right, under this covenant, to require the con- veyance of any other estate, or the removal of an incum- brance not created by the vendor. This question was in part presented in a late case in Missouri, where the plaintiff sold certain lands by a deed containing the words " grant, bargain and sell," which in that State implies, by force of a local statute, covenants for seizin, against incumbrances done or suffered by the grantor, and for further assurance.^ In a suit on the last of these covenants, the breach assigned was that a mortgage upon the premises, which had been created hy the defendant's "grantor, had been foreclosed, that the defendant was there- upon requested to pay off" and discharge the incumbrance, which he refused to 'do, and that the plaintiff' had been obliged to pay it off in order to protect his title and possession. To this the defendant demurred, and the demurrer was sustained, on the ground that the covenant must be taken to embrace such incumbrances only as were created by the grantor.^ • See infra, Chapter X. Thfe opinion, " is whether our statutory covenants thus implied are, first, covenant for further assurance obliges that the grantor is seized of an in- the vendor to remove an outstanding defeasible estate in fee-simple ; sec- incumbrance. This covenant is sub- ond, that it is free from incumbrance stantially a covenant that the vendor done or suffered by him ; and, third, will, at the request and cost of the for further assurance by the grantor vendee, perform all acts, deeds, con- and his heirs to the grantee and his veyanoes and assurances," either by heirs and assigns. fine, recovery or other form of assur- 8 Armstrong v. Darby, 26 Missouri, ance, which may be wanting to the 517. "The question in this case," confirmation of the vendee's title, said Napton, J., who delivered the (Piatt on Covenants, p. 341 ; Rawle, 17 194 THE COVENANT FOR FURTHER ASSURANCE. It seems that, where in England a purchaser having taken his conveyance vi'ithout the transfer of the custody 203). In King v. Jones, 5 Taunton, 418, Mr. Justice Heath said: "Un- der this covenant the heir might call for further assurances, even to levy a fine ; he certainly might have called for the removal of a judgment or other incumbrance." The commen- tators seem to have adopted this ob- servation in King v. Jones. Piatt says : " The levying a fine is included under a covenant to do all lawful and reasonable acts for further as- surance. The removal of a judg- ment or other incumbrance may likewise be called for.'' (Piatt on Covenants, 344). Rawle says : " In considering what acts may be rea- sonably required under this cove- nant, the purchaser may, as of course, require a fine to be levied, or a judgment or other incumbrance to be removed." Sugden says : " Un- der a covenant for further assurance, a purchaser may, of course, require the removal of a judgment or other incumbrance." All these writers re- fer to King V. Jones as the author- ity on which these remarks are based. It is further stated by Piatt in his treatise, that this covenant operates as well to secure the performance of all acts for supplying any defect in the title of the vendor as'to remove all objections to the sufficiency and security of the instrument of con- veyance to the vendee. Such lan- guage as this is very comprehen- sive. Sir Edward Sugden says, in the same chapter we have quoted from above, in speaking of the cove- nant for further assurance, "If the title prove bad, and the defoct can be supplied by the vendor, the pur- chaser may file a bill in equity for a specific performance of the covenant for further assurance ; and a vendor who has sold a bad title will, under a covenant for further assurance, be compellable to convey any title which he may have acquired since the conveyance, although he actually purchased such title for a valuable consideration." This expression of Sugden, to which he gives stress by italicizing the words, may furnish an explanation to Mr. Justice Heath's declaration of the law in King v. Jones, and which has been adopted without explanation by the text writ- ers. If the defect in the vendor's title can be supplied by a convey- ance from him, the covenant for fur- ther assurance would clearly protect the vendee. But if the covenant for further assurance, as intimated by Piatt, applies to any defect of title in the vendor, whether such defect can be supplied by the vendor or not, it is greatly more comprehensive than any other covenant for title, and may be said to render most of them totally superfluous. Why insert a covenant against incumbrances, if the cove- nant for further assurance requires the vendor to buy up an outstanding mortgage or judgment and convey to the purchaser ? Of what avail is ■ the covenant of indefeasible- seizin, if all incumbrances must be removed under the covenant for further assur- ance ? The protection furnished a purchaser by the covenants of seizin and against incumbrances are known to be imperfect, and insuflB.eient in many cases to secure him against the actual damage resulting from their THE COVENANT FOR FURTHER ASSURANCE. 195 of the title-deeds, afterwards parts with his own deed to a subsequent purchaser of part of the property, he may, un- der the covenant for further assurance, require his original vendor who retains the title-deeds, to execute a duplicate of the conveyance to himself for his security, as he might otherwise be without any deed whatever ; ^ but whether a purchaser who has neglected to take with his conveyance a covenant from his vendor to produce the title-deeds, can afterwards compel the latter to enter into such a covenant, by virtue of the common covenant for further assurance, seems at least doubtful. He could compel the production of the title-deeds themselves, but not, it would seem, of any papers not strictly within that category.^ Of course, on breach, by reason of the restrictions which courts have imposed upon the measure of damages. "Why should these covenants ever have been re- sorted to, if the covenant for further assurance Tvould furnish an equally satisfactory remedy at law for its breach and a greatly more efBoient protection in equity by an action for its specific performance ? The doc- trine of Mr. Justice Heath and the writers who have followed him must be understood in a qualified sense to reconcile it with the practice and un- derstanding of the profession. The judgments and other incumbrances to which they allude, must be under- stood to be such as the vendor has control of." The reasoning in this case seems obviously just, and has induced the alteration in the text presented in this edition. 1 Napper v. Arlington, 1 Eq. Cas. Abr. 166, pi. 4. 2 Where in Fain v. Ayers, 2 Sim. & Stuart, 533, a bill stated that the plaintiff had resold the proper- ty which he had purchased with a covenant for further assurance, and prayed in the alternative, a new cove- nant to produce title-deeds, or the actual production of the deeds them- selves, a demurrer to the bill for want of equity was overruled. Vice- Chancellor Leach said, " I do not think that there has been a judicial decision upon the particular point whether under a covenant for fur- ther assurance in a conveyance, a new deed of covenant to produce title-deeds may be required. But whatever doubt there may be upon that point, this bill, stating that the plaintiff has resold the property, prays alternately either a new deed of covenant to produce, or the actual production of the title-deeds, to ena- ble the plaintiff to show a marketable title upon his resale. The defend- ant's title-deeds being the root of the plaintiff's title, and in that sense a sort of common property, (see Bar- clay V. Raine, 1 Sim. & Stuart, 449,) I strongly incline to think that the plaintiff has an equity to that ex- tent ; and I am informed that the 196 THE COVENANT FOR FURTHER ASSURANCE. this side of the Atlantic, the registry acts leave no scope for such questions. When the purchaser conceives himself entitled to require further assurance from his vendor, it is usual, at least in England, to submit to the latter a draft of the intended assurance, with the opinion of counsel as to its necessity and propriety.^ A distinction, however, is to be observed between mere agreements to convey by reasonable assur- ance, which are held to carry with them a right to cove- nants for the title in the deed of conveyance,^ and a right Lord Chancellor has expressed an opinion to that effect." But in Hal- lett V. Middletou, 1 Russell, 249, a case which occurred about the same time, where one had conveyed to trustees to sell, if the debts of a part- nership in which he had been en- gaged should exceed a certain sum, and the trustees, reciting that the debts did exceed that amount, con- veyed to a purchaser by a deed in which the heir of this partner joined with a covenant for further assur- ance, and the purchaser filed a bill praying either for the production of the accounts to show that the debts did exceed that amount, or for a covenant for their production, the bill was dismissed by Gitfbrd, M. R., who said, " it was one of the most extraordinary attempts at relief that a court of equity has witnessed. The covenant creates no obligations in respect of which the documents should either be delivered to him or deposited in a place of security, inas- much as they are not part of his title." The precise point stated in the text was not, it will be observed, settled in either of these cases. 1 Some old authorities held that if the covenant be to make such as- surance as the purchaser's counsel should devise, the assurance must not be devised by the purchaser himself, though he be learned in the law ; (Rose wel's case, 5 Rep. 19b; Bennett's case, Cro. Eliz. 9 ; Baker V. Bulstrode, 2 Levinz, 95,) but by the form of the covenant, as usually expressed in modern times, the as- surance may be either devised by the purchaser or his counsel. The resolution in Manser's case, accord- ing to Coke's report, (2 Rep. 3 a,) that " if the vendor is literate he is bound by law to seal and deliver the assurance presently upon recjuest," and without time to consult with his counsel, seems by the report in Moore, 182, pi. 326, to be rather broadly laid down ; and in Bennett's case, Cro. Eliz. 9, it is said that "B. is not only to show him the assur- ance that he is to make, but is to permit him to read it and go to his own counsel to consider it." See Wotton V. Cooke, 3 Dyer, 337 b; Symmes v. Smith, W. Jones, 314 ; S. C. Cro. Car. 299 ; Andrews u. Eddon, 1 Anderson, 122; Heron v. Treyue, 2 Ld. Raymond, 750 ; Mil- ler V. Parsons, 9 Johnson, 336. 2 See infra, Chapter XI. THE COVENANT FOR FURTHER ASSURANCE. 197 to the insertion of those covenants in the deed of further assurance itself. " AYhere the agreement," says Lord St. Leonards, " is to convey an estate upon sale, it admits of no doubt that the purchaser, both at law and in equity, would have a right to a conveyance with usual covenants, although nothing was expressed about covenants in the agreement ; that would be supplied. But where the conveyance is really a further assurance, the purchaser must be supposed to have already obtained all such covenants for title as he was entitled to, and therefore could not require any new ones from the seller in the further assurance." ^ And however this may be, it is clear that the vendor is not, in the absence of an express agreement to the contrary, bound to covenant further than against his own acts ; but it would seem that out of abundant caution a stipulation to this effect is some- times inserted by way of qualification to the covenant.^ It would seem that in suing upon this covenant at law, the constant course of pleading is to assign the breach in ' 2 Sugden on Vendors, 545. It fied is thus given in Piatt on Cove- seems at one time to have been nants, 347. " So as such further as- thought that upon an agreement to surances, or any of them, shall not convey by reasonable assurance, the contain or imply any other or more vendor was not bound to insert any general covenants or warranty on covenants, " although they be ordi- the part of the person or persons nary and reasonable ; j-et the agree- who shall be requested to make or ment not being to make it with rea- execute the same, than for the acts, sonable covenants, but only reason- deeds and defaults of himself, her- able assurance, he is not bound to self and themselves, respectively, seal it, for it is not any part of the and his, her and their heirs, exec- assurjince, and the assurance may utors and administrators ; and so as be without any covenants ; " Coles v. the person or persons who shall be Kinder, Cro. Jac. 571 ; Sheppard's requested to do such acts, or make Touch. 168; Wye & Throgmorton's such further assurances, shall not be case, 2 Leonard, 130; Pudsey v. compelled or compellable, for the pur- Newsam, Yelverton, 44 ; Lassels v. pose of making or doing the same, to Catterton, 1 Modern, 67, but such go or travel from his, her or their then is not the law at the present day. dwelling or place of abode or respec- 2 The form of a covenant so quali- tive dwellings or places of abode." 17* 198 THE COVENANT FOR FURTHER ASSURANCE. the words of the covenant.^ Some particularity is, how- ever, to be observed as to the form of the declaration. Thus where the defendant covenanted upon request by the testator to make further assurance to him, his heirs and assigns, and the breach assigned was that the plaintiff, as executrix, requested the execution of a release between the defendant and the plaintiff, and one S. A. for the further assurance of the premises, on special demurrer the breach was considered badly assigned, as it was not shown what right the plaintiff' had, or to whose use the release was to enure, or why S. A. was to be a party to it.^ So in a case in New York, where upon a covenant that the defendant would, upon the reasonable request of the plaintiff', do and execute such further and other lawful assurances for the better and more effectually vesting and confirming the premises as by the plaintiff' or his counsel should be reason- ably devised, advised or required, the declaration averred that the defendant's wife would, on her husband's death, have a right of dower in the premises, and that the defend- ant had been requested by the plaintiff to execute a reason- able conveyance and assurance of the said right of dower, according to the true intent and meaning of the covenant. On demurrer, the Court held the breach badly assigned ; that the plaintiff' having devised the assurance, was bound to give notice of it to the defendant and allow him a rea- sonable time to consider of it. As no particular assurance was specified in the covenant and none specified by the plaintiff, the defendant could not know what assurance was required.^ 1 Per Burrough, J., in Blicke v. 284 ; King v. Jones, 5 Taunton, Dymoke, 2 Bingham, 105. A pre- 418. cedent for a declaration on ttiis cove- ^ King v. Jones, suprn. nant will be found in 2 Chitty's ^ Miller u. Parsons, O.Johnson, 336. Pleading, 543 ; see also 1 Lutwyche, See also Warn v. Bickford, 7 Price, THE COVENANT FOR FURTHER ASSURANCE. 199 The technical breach of this covenant occurs, it would seem, upon the neglect or refusal of the covenantor to exe- 550 ; S. C. 9 Price, 43 ; and Gwynn u. Thomas, 2 Gill & Johns. (Md.) 420, cited supra, p. 1S7. In Blicke «. Dy- moke, 2 Bingham, 105, one purchased a house which was the subject of a ten- ancy for life with remainder to first and other sons in tail, and the tenant for life covenanted that the first son who should attain the age of twenty- one years should, at the request of the purchaser, well and effectually convey and assure the premises by such common recovery, fine or fines, and other assurance as counsel sJiould advise. In an action on this cove- nant, the declaration averred the seizin and death of the covenantee, and the descent on and seizing of the plaintiff as his* heir, the attain- ment of the majority of the son, the request of the plaintiff that a com- mon recovery should be suffered, and the neglect and refusal of the defend- ant so to do. On demurrer, it was objected that there should have been an averment that the defendant had notice of the title having devolved upon the plaintifl", and also that it should appear that the suffering of the recovery was advised by counsel, of which the defendant had notice. But the Court of Common Pleas held, upon the authority of Reynolds u. Davies, 1 Bos. & Pull. 625 ; Skip I'. Hook, Comyns, 625 ; Bristow and Bristowe's 6ase, Godbolt, 161; Hin- gen u. Payn, Cro. Jac. 475 ; Alfrey V. Blackamore, 3 Bulst. 326, &c., that the first averment was unnecessary ; that the plaintiff need only show all that might bring him within the words of the covenant, and that any grounds of exemption must be shown by the covenantor. " I confess," said Best, Ch. J., " that unaided by the light of former ages, I should have thought a perfect stranger to the defendant ought to have given him notice that he was become possessed of such an interest in the property as would au- thorize him to call upon the defend- ant for the performance of his cove- nant ; but by a series of cases it has been decided that it is not necessary to show any such notice ; and in two of the cases, the reason assigned is this : that giving notice is no part of the provision ; by which I understand that it is only. necessary for the plain- tiff to show all that brings him within the covenant ; any ground of exemp- tion must be shown by the covenant." As to the second objection, it was held that it was admitted by the deed that a common recovery was neces- sary at all events, and' that the words " as counsel should advise,'' only re- ferred to assurances other than a recovery. " If a covenant be that a party shall execute such assurances as counsel shall advise, the plaintiff must show what has been advised ; but that is not the covenant the breach of which is complained of here. In the first instance the de- fendant only engages to cause a re- covery to be suffered, and he did not want to be told by counsel that such a proceeding was necessary, because, in the language of the deed, it is admitted to be necessary. The recovery he was to cause to be suf- fered at all events, but not to do more unless counsel should advise : 200 THE COVENANT FOR FURTHER ASSURANCE. cute the further assurance. Until such refusal, there can 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.^ For the reason that redress is usually sought on this covenant in equity, there is little authority to guide us in considering the question of the measure of damages. In King V. Jones,^ a woman being seized of certain premises, mortgaged them for ,£300. She subsequently married, and her husband and herself, in consideration of £800 paid to the mortgagee and of £855 paid to themselves, joined with the mortgagee in the conveyance of the premises by deed of lease and release to the plaintiff's ancestor, the hus- band covenanting for himself and his wife for further assur- ance. This conveyance was of course inoperative to pass the title of the wife by reason of no fine being levied for that purpose.^ After the death of the wife, her devisee filed a bill against the plaintiff", who was the heir of the grantee under this conveyance, praying to be let into possession, and that the plaintiff' should be decreed to convey the same to him on payment of what might remain due of tlie £300 after accounting for the rents and profits, and a decree and this is the strict meaning of the Ian- 3 It is scarcely necessary to men- guageof the covenant, and the words tion that until the statute 3 and 4 " as counsel shall adoise" do not over- Wm. IV. c. 74, the only mode in Eng- rule the whole of the preceding sen- land by which a married woman's es- tence, but only the stipulation for tate in land could be passed was by assurances other than a recovery, levying a fine, the simple process of Therefore, strictly collecting the acknowledgment upon separate ex- meaning of the deed from the Ian- amination which prevailed in this guage of the deed itself, our judg- country almost from its settlement, ment must be for the plaintiff." not having been there adopted until 1 See infra, Chapter VIII. the statute referred to. 2 5 Taunton, 418. THE COVENANT FOR FURTHER ASSURANCE, 201 reconveyance were made accordingly, upon which the plain- tiff brought suit against the executor of the husband, who had been the covenantor in the deed. On the trial it appeared that the grantee had in his Hfetime and in that of the wife, requested the husband to procure the fine to be levied, which the latter during a course of eighteen months assured him was being done. A verdict was found for £955, consisting of ^£855, — so much of the purchase-money as the plaintiff had not been repaid as assignee of the mortgage under the decree, — and ^£100 interest; upon which the defendant moved, first, in arrest of judgment on the ground that the breach having been in the lifetime of the ancestor the dam- ages belonged not to the heir but to the executor ; and secondly, in reduction of damages, that the plaintiff was not entitled to the iGlOO interest, for it was the plaintiff's own laches that he did not sue instantly on the eviction, in which case no interest would have accrued. Upon the last point, the Court observed that the plaintiff was entitled upon this same declaration to recover damages for all the time past during which he had been kept out of the possession of the estate, and, therefore, as he would be entitled to an equiva- lent or greater sum under another name, it would be use- less to grant a rule upon that ground,' and upon the motion in arrest of judgment, it was decided that the ultimate dam- age not having been sustained in the time of the ancestor, the action remained to the heir (who represented the ances- 1 In the course of the argument, his purchase-money, relying on the Mansfield, Ch. J., said: "In the vendor's covenant ; he required him present case the ancestor might have to perform it, but gave him time and sued and could have recovered the did not sue him instantaneously for whole value of the estate ; at this time his neglect, but waited for the ac- of day there could have been no count. He was to do so until the difficulty upon that point," but in ultimate damage was sustained, for delivering the opinion of the Court, otherwise he could not have recov- Heath, J., said : " The ancestor paid ered the whole value." 202 THE COVENANT FOR FURTHER ASSURANCE. tor in respect of land as the executor did in respect of per- sonalty) in preference to the executor.^ It is presumed that, on this side of the Atlantic, if the analogy to the rules which govern the measure of damages on the other covenants for title were observed, the mere refusal to execute the further assurance would not of itself entitle the plaintiff to more than nominal damages, unless it should appear that by such refusal the plaintiff had sustained the ultimate damage that might ever occur to him by reason of that refusal. ' This part of the case — the ques- covenant for title is considered, infra, tion whether the heir or the executor Chapter VIII. is the party entitled to sue upon the THE COVENANT OF WARRANTY. 20S CHAPTER VIL THE COVENANT OF WARRANTY. The constant use of this covenant in conveyances on this side of the Atlantic, gives to it an importance which deserves careful inquiry,^ as although it is sometimes used in addi- tion to some or all of the covenants which we have been considering, yet it is not unfrequently, and in some States it is almost invariably the only express covenant employed.^ The origin and eS'ect of the ancient common-law war- ranty havg already formed the subject of the first chapter, where a sketch of its general character and incidents was attempted. It was there seen that warranty was, in its 1 It has been said from the bench that " few subjects were so badly- understood by courts and lawyers, as the action of covenant upon clauses of warranty." Randolph v. Meeks, Martin & Yerger, (Tenn.) 62, per Catron, J. But it may be doubted if, practically, the severity of this censure is deserved ; as although the subject has never, since its application to modern conveyancing, received a connected and separate examination, yet the authorities exhibit far less want of harmony than might reason- ably have been expected. 2 As an illustration of this, it was said by Lumpkin, J., in Leary v. Durham, 4 Georgia, 601, " I can say with truth, after a practice of more than a quarter of a century, that I never saw a deed containing, in so many words, definite and precise cov- enants of seizin — right to convey — for quiet enjoyment — against incum- brances, and for further assurance. These are all designed to be included in the general covenant of warranty of title against all claims." Such too appears to be the course of convey- ancing generally in the Southern and Western States, as it is in Pennsyl- vania ; see Stewart v. West, 2 Har- ris, (14 Penn. State E.) 336 ; Cald- well V. Kirkpatrick, 6 Alabama, 61 ; and infra, Chapter XI. 204 THE COVENANT OF WARRANTY. origin, one of the incidents of the feudal relation between the lord and vassal, and enured to the latter as a necessary consequence of or return for the homage by which the land was held, and its operation was twofold, first, in giving to the vassal the right to demand another fief in case of the loss of that which he had before enjoyed, and secondly, in repelling the lord from claiming the land itself or any of its profits, except those which, under the feudal contract, were justly due to him.-^ During the two centuries that elapsed between the pas- sage of the statute de donis^ and the decision in Taltarum's case^ — from the reign of Edward I. to that of Edward IV. — the whole subject of warranty was perplexed and entan- gled, and it was during this period that collateral warran- ties were introduced as a means of barring estates tail, and the original and natural effect of a warranty as an assur- 1 When warranty was thus implied in the creation of every fief, the right to its benefit was co-existent with the estate itself, and passed with it to the heirs of the feoiFee. Co. Litt. 384 b. But when, by the introduction of deeds or charters, a warranty was thus expressed in them in words, although the estate might be given to the feoffee and his heirs, yet if there were " warranty to the feoffee only, %vithout mentioning his heirs, there the warranty shall enure for life only, because it is taken strictly ; " Executors of Grenelife i). W , 1 Dyer, 42 b. ; Co. Litt. 47 a. ; and while this was the rule as to the ben- efit of the warranty, it was equally so as to its burden, since if it were expressed merely by the word wax- raniizo, without adding el Jierides mei, the warranty would endure only for the life of the warrantor, as says Coke, " an express warrantie shall never bind the heirs of him that mak- eth the warrantie, unless (as hath been said) they be named." Co. Litt. 384 b. ; Fitz. Nat. Br. 312 a. Hence it appears, that during the period when warranties were implied as incidents of tenure, their burden bound the warrantor and his heirs, and their benefit enured to the war- rantee and his heirs, so long as the feudal relation between lord and vas- sal demanded fi-om the latter the ob- ligation of homage ; but when war- ranties were " expressed by deed " (as distinguished from " warranties in law,") their burden or benefit passed no further than the words of the deed strictly authorized. 2 13 Ed. I c. 1. 3 Year Book, 12 Ed. IV. Mich. 19, case 25 ; see supra, p. 6. THE COVENANT OF WARRANTY. 205 ance to the purchaser was almost lost sight of in compari- son with its operation by way of rebutter. Hence it is that we find the pages of Littleton, who wrote shortly after Tal- tarum's case, filled with matter which is not only unprofit- able at the present day, but which, even at the time when Lord Vaughan wrote, seems to have been but little appre- ciated,-^ and it has been owing to this unfortunate distortion of what seems to have been comparatively a plain subject, that some misconception has, in later times, prevailed as to the operation of warranty as a remedy to the purchaser. ' The practical means by which a warranty was enforced, were in fact simple.^ There were certain of the old common- law forms of action, in which if one who had received a warranty were impleaded, he had the power by virtue of a " summoneas ad tvarrantizandum" of bringing in his war- rantor as the real party to the action, and thus make him de- fend the title ; and the process itself was called " voucher." But there were also many actions by which a title might be assailed, in which the warrantee had not the benefit of voucher,^ and in these cases he had a right to bring a writ of warrantia chartce, whereby in effect he gained the same end. The effect of thus bringing in the warrantor was that the same judgment which deprived the warrantee of a part or the whole of that which had been conveyed to him, also oper- ated as a judgment in his favor against the warrantor, giv- ing him a right to other lands of equal value to those which had been lost. Whether, in case the warrantor had no other lands, the warrantee could recover damages, as in case of a personal action, seems not to have' been very uniformly under- 1 See supra, p. 7. 3 Such as a writ of dower, a writ of 2 Such as mortdancester, writ of assize, a writ of entry in the nature right of an advowson, writ of admeas- of an assize, a quare impedit, &c, urement of pasture, &o. Viner's Viner's Abridg. supra, Fitz. Nat. Abridg. tit. Voucher, Q. Brev. 134. 18 £06 THE COVENANT OF WARRANTY. Stood in later times. By the feudal law, as it existed on the continent, the warrantor was obliged to give his evicted vas- sal another fief of equal value, or if he had none, to pay him the value in money.^ Dr. Sullivan, however, goes to the extent of saying that " our law went no further than to give a recompense of equal value in other lands. "^ But the writ of warraniia chartce was also very frequently employed before the warrantee was impleaded in any action. In such case he brought his writ quia timet implacitarif 1 Butler's note to Co. Litt. 365 b. S Sullivan's Lectures, 119, but no authority is cited for this position. In Fitzherbert's Nat. Brev. 135, it is said, " If a man be impleaded in assize, and he brings a writ of war- rantia chartte, and counts that he is impleaded by assize, &c., and that he hath lost, &c., if the plaintiff recover his warranty, he shall recover his damages, and also to have the value of the land lost." In the margin is, " 4 Ed. II. Gar. Charters, 29 ; it is but a personal action in the nature of a covenant, therefore he shall recover damages ; 2 H. 6, 31." (This is a mis- reference, as is also the preceding one.) " It is holden that in this case he shall recover damages only. But it seemeth by Br. War. Char. 31, that if he hath no land to be recovered in value, that he shall not recover dam- ages lantuvi, nor more than in vouch- er." The passage thus cited from Brooke is as follows : " Judgment and recovery in warrantia chartse is to have land in value and damages, and not all in damages, and where the plaintiff in this action recovers pro loco et tempore, and has not lost any land, query, there, if he shall have any damages ; and it would seem not, for he is not yet damnified ; but if he lose the land, then he shall have execu- tion of land in value and damages, and where no land is to be recov- ered in value, there he shall lose his warranty, as upon recovery upon voucher." 3 Year Book, 24 Ed. IH. 35. " And a man may sue forth this writ of warrantia chartaB before he be im- pleaded in any action, but yet the writ doth suppose that he is implead- ed ; and if the defendant appear and say that he is not impleaded, by that plea he confesseth the warranty, and the plaintiff shall have judgment to recover his warranty, so as if the de- fendant be after impleaded and vouch him to warranty, and he entereth into the warranty and pleadeth and loseth, and that the defendant re- cover in value, the defendant shall have in value of tie lands against the vouchee, which he had at the time of the purchase of his warrantia chartae ; and therefore it is good pol- icy to bring his warrantia charts against him before he be sued, to bind the lands of the vouchee which he had at that time," etc. Fitz. Nat. Br. 134. In the first sentence of this passage, the defendant first referred to, means the warrantor, that is, the defendant in the warrantia chartas. THE COVENANT OF WARRANTY. 207 and if it were found that his apprehensions were not ground- less, he was assured from future loss hy means of a judg- ment pro loco et tempore. The effect of this judgment was, until the subsequent eviction of the warrantee, no more than a lien on the lands of his warrantor. It has been, probably, from this circumstance, that some contrariety of opinion may have prevailed as to the damages on a ivarrantia chartce, as all the authorities say that by a judgment pro loco et tem- pore the warrantee shall recover no damages,^ because as yet he has lost nothing. But when the loss actually did occur, then, by means of a scire facias on this judgment, the warrantee was entitled to have execution of all the lands and tenements which the defendant had at the time of the judgment given,^ provided, however, that in case of a suit brought after the judgment pro loco et tempore, the war- Afterwards it means the warrantee, the defendant in the action brought to recover the laud. 1 Year Books, 24 Ed. III. 35 ; 2 Hen. IV. 14; 8 Ed. IV. 11 ; Br. Warr. Ch. 31. The following case from 2 Hen. IV. pi. 14, shows that a mere warranty did not bind the other lands of the warrantor, but that a judgment pro loco et tempore did. " A question was moved between the Justices of the Common Bench, of what effect judgment in warranlia chartce pro loco et tempore is, and it was moved that a warranty was no more than a covenant, and that by such covenant a man should not bind land to be bound in value afterwards in whosoever hands they might come by purchase or otherwise, without judgment in any action, for this would be too great a mischief . . . but oth- erwise it seems by the special judg- ment above." See also 12 Hen. IV. 12. The case is not quite correctly copied into Brooke (Warr. Ch. pi. 8), and is therefore somewhat differ- ently rendered in the translation in Viner, War. Ch. M. pi. 3. It is much to be regretted that some patient industry has not as yet achieved a translation of the Year Books, as they are, even at this late day, not unfrequently quoted, and not always with entire accuracy, and any one who has sought to trace in them a principle to its foundation, will be struck with the apparent con- trarieties which they present, which would doubtless be to some extent ex- plained, could the contents of these volumes be presented in a more famil- iar shape. 2 Viner's Abidg. War. Ch. M. 4 ; Roll V. Oshorn, Hobart, 25 ; Fitz. Nat. Brfv. 135. 208 THE COVENANT OF WARRANTY. rantee had, as by analogy to voucher, notified the warrantor and requested him to defend it.^ But the machinery, both of voucher and of warrantia chartce, was only capable of being employed when the adverse title was one that affected a freehold interest in the lands which the warrantee had received ; as, for instance, where a right of dower was sought to be recovered. But there were, of course, many instances in which the incum- brance or defect did not amount to the dignity of a freehold ; as, for example, where a prior lessee for years should enter upon the lands warranted. Here the warrantee could nei- ther have voucher nor warrantia cliartce, for there was no loss of a freehold estate out of his land ; it was merely a chattel interest, to recover which those actions would not lie. But, as it would be hard to leave the warrantee reme- diless in such case, the common law allowed him to use his warranty as a mere personal covenant, on which he could recover damages to the extent of his loss.^ The only class 1 Per Markham, Ch. J., in Year of years. The lessee entered upon Book, 8 Ed. IV. 11. " If I recover the grantees, who brought an action from my warrantor a judgment pro of covenant on the warranty, in which loco et tempore, and then am im- the warrantor pleaded a warrantia pleaded in an action in which I can- chartse brought against him by them, not vouch, as for example, an assize which was still undetermined. Upon or scire facias, it is proper for me to demurrer, the question arose, whether request him from whom I have thus upon the warranty annexed to a free- recovered, to put in a plea for me, hold, an action of covenant would and thus give him notice of the ac- lie, and " it was agreed by all the tion that is pending, as otherwise I Judges in the Exchequer Chamber shall not be allowed to have exeou- that this action of covenant will lie ■ tion on my judgment." because that though the warranty 2 This was decided in the case of was annexed to a freehold, yet the Pincombe v. Rudge, reported in Ho- breach and impeaching was not of a bart, 3 ; Noy, 131 ; Yelverton, 139, freehold, but of a chattel (that is to and affirmed on error, 1 EoUe, 25. say), of a Isase for years, for which The defendant had granted a free- there could neither be a voucher, re- hold with warranty, having previ- butter, or warrantia chartse ; so that ously demised the premises for a term though there had been a judgment in THE COVENANT OF WARRANTY. 209 of cases, however, in which warranty was thus employed as a personal covenant was where the loss did not draw away a freehold. In every other case the remedy was by voucher or warrantia chartce, in which the primary judgment was that the warrantee should recover in value lands equal to those which he had lost. Both the warranty and the covenant of warranty are sometimes spoken of as " a covenant real," hut this must not be understood as confounding them with each other. Where warranty was alluded to as a covenant real, it was meant that lands instead of damages were, in the first in- stance, recoverable.^ Where the covenant of warranty was warrantia chartte in the case, yet neither upon entry, nor upon recov- ery in eject, firmce upon this lease, there could be neither voucher, nor rebutter, nor value upon the war- rantia charts ; and therefore a real "warranty is a covenant real, when the freehold is brought in question. But when a lease is in question, or any other loss that doth not draw away the freehold, it may be used as a personal covenant, whereupon dam- ages may be recovered ; so it is both a real and personal covenant to several ends and respects. And so it was adjudged for the defendant upon the writ of error." So, where the war- ranty was contained in a lease for years. " If a man lease for years with warranty, and the lessee is ousted by title, action of covenant lies against the lessor and against his heir also, if the ancestor had bound the heir to warranty." Brooke, Descent, 50 (cit- ing 32 Hen. VI. 32), Covenant, 38. 1 " There is a diversity," says Coke, " between a warranty that is a cove- nant real which bindeth the party to yield lands and tenements in recom- 18* pense and a covenant annexed to the land which is to yield but dam- ages.'' Co. Litt. 384 h. In Jacook's Lessee v. Gilliam, 1 Murphey, (N. Car.) 47; S. C. 4 Hawks, 310, a tenant in tail aliened with covenant of warranty, and it was argued that a discontinuance had been thus caused, and the issue in tail barred. " But," said Taylor, Ch. J., " the law has made a clear distinction between a covenant real and a covenant per- sonal ; and to a warranty alone in the original and proper sense of the term, has it imparted the effect of intercepting the descent to the heir, because he, and not the executor, is bound to warrant and secure the land to the covenantee (warrantee) and his heirs. The use and adoption of the form in which the ancient war- ranty is expressed, would indicate the intention of the parties to avail themselves of such remedies as ap- pertain to the warranty only, and the change of that form will justify the reasonable inference that they de- signed to abide by the security which is afforded by covenant." In this 210 THE COVENANT OF WARRANTY. spoken of as a covenant real, it was so termed as distin- guished from covenants which did not run with the land ; in ether words, the old distinction seems to have been, that warranty, which did not bind executors, whose effect was that of a specific performance, or at least a restitution in kind, and which yielded lands and not damages (at least in the first instance) as a recompense, was a covenant real, as distinguished from those which bound executors, on which damages alone were recovered, and which were, therefore, termed personal covenants. Then, as the ancient warranty fell into disuse, the covenant of warranty (which was how- ever, by no means frequently used in England) was classed with covenants to repair, to levy a fine, &c., which ran with the land, and which, though yielding damages, were sometimes called real covenants, as distinguished from those which had not the capacity of running with the land.-^ From the comparative want of authority on the subject, it is difficult to trace vvith precision the introduction and use of the covenant of warranty, as distinguished from the old warranty itself. The earlier settlors of America left their mother country about the time when the modern sys- tem of law, which may be said to have had its rise at the end of the reign of Henry the Seventh, had, towards the latter part of that of Charles the Second, assumed some- case it seems to have been doubted says, " the issues are not barred un- ■whether a discontinuance did not less there is a common recovery, or necessarily bar the issue in tail, fine with proclamation, or in some Such, however, was not the case, special cases, a warranty." Preston's Although the issue might be obliged Law Tracts, 29. See further as to to bring an action in order to get the effect of a warranty by way of possession, yet in that action there rebutter or estoppel when used in was nothing in the warranty of the modern conveyances, Chapter IX. ancestor, since the statute de donis, ' For the consideration of the to prevent a recovery ; Butler's note doctrine of covenants running with to Co. Litt. 330. So, in the able land, so far as connected with cove- tract of Mr. Preston " On the effect nants for title, see infra, Chapter of fines, &c., by tenant in tail," he VIII. THE COVENANT OP WARRANTY. Sll thing of a regular form.^ Of the changes which marked this period, the discontinuance of real actions was one, and the emigration to America occurred about the time when their use had ceased to be frequent, and yet before the in- troduction into general practice of the covenants for title, which had been devised or at least arranged by Sir Orlando Brigman during his retirement in the time of the Protec- torate. The ancient warranty was nearly out of use, and the modern covenants were not fully in use, and, at this period, if we may judge from the scanty authority on the subject, the covenant of warranty was introduced, and seemed to hold a middle ground between the old warranty on the one hand, and the more modern covenants on the other ; and although superseded in England by the latter, was brought to this country by our ancestors, and has since, throughout its breadth, been extensively used, and become, perhaps, the principal covenant for title.^ But its precise nature and attributes seem not to have 1 " The principal features of tWs accurate note to the case of Foote v. alteration were the introduction of Burnet, 10 Ohio, 322, Mr. Wilcox, recoveries, — conveyances to uses, — the reporter, seems to think that both the testamentary disposition by wills, the old warranty and the modern cov- — the aboUtion of military tenures, — euants were used in our early con- the statute of frauds and perjuries, — veyances. His language is: "Our the establishment of a regular system ancestors, who emigrated just about of equitable jurisdiction, — the dis- the time the modern covenants for continuance of real actions, — and title were coming into use in the the mode of trying titles to landed mother country, and before the war- property by ejectment. There is no ranty had been entirely abandoned, doubt that these have produced a seem to have brought with them both material alteration in the jurispru- the modern covenants and the war- dence of this country ; but they have ranty, and while the former alone effected it not so much by supersed- were soon found to be a competent ing, as by giving a new direction to assurance of title in England, both the principles of the old law, and the warranty and the modern cove- applying them to new subjects." — nants continued to be used in our Charles Butler's Reminiscences, 116. early conveyances and to have both 2 In a learned, and, in general, come down together to our own time." £l!2 THE COVENANT OF WARRANTY. been very consistently agreed upon. On the one hand, it appears to have been very generally thought that the mod- ern covenant of warranty is neither more nor less than the old common-law warranty stripped of its voucher and war- rantia chartoe, and turned into a personal covenant ; and, on the other, that it is synonymous with the modern cove- nant for quiet enjoyment. But the first of these conclusions is far from correct ; and the second must be taken with some qualification. The origin of the former may be traced to an expression in an early case in Massachusetts,^ where it was remarked, " The remedy to recover a recompense in other lands to the value existed very anciently, when the principal consideration received on the alienation was the services to be performed by the tenant. The remedy might then be proper, as any improvements of the land thus paid for in services, must redound wholly to the advantage of the tenant, as his services to the lord remained the same. But when lands were aliened for money, when improve- ments in agriculture became an important object of public policy, and when the alienor might have no other lands to render a recompense in value, it became expedient that another remedy for the purchaser on eviction should be allowed. And it is certain that, before the emigration of our ancestors, the tenant, on being lawfully ousted by a title paramount, might maintain a personal action of covenant broken on a real covenant of warranty." The last sentence is, indeed, correct according to the letter, and might have been said to be true at any time previously ; but if, as the whole context would seem to imply, the idea is meant to be con- veyed that with the change of the times and the frequent alienation of land for money, the recovery on a warranty was optionally either money or land, and that the warrantee I Gore V. Brazier, 3 Mass. 544, per Parsons, Ch. J. THE COVENANT OF WARRANTY. 213 might either bring covenant of warrantia chartce at his pleas- ure, the position will be found to be unsupported by authority.-^ 1 This has been very clearly shown in a note to the case of Pincombe V. Rudge, in Mr. Justice Williams's American edition of Hobart's Re- port, 3, " from the pen of a distin- guished jurist, whom the editor is not at liberty to name ; " (by whom, how- ever, is meant the late Judge Story,) which has been thus inserted, some- what abridged, in the 10th volume of the American Jurist, 119. " But Chief Justice Parsons, in Gore v. Brazier, 3 Mass. R. 523-545, held that a personal action would have lain in England upon a covenant of warranty annexed to a fee, and where the ouster was of the freehold by title paramount. And he cited 1 Brownlow, 21 ; 2 Id. 164, 165, as in point. The ease cited, I suppose, is Waters v. The Dean of Norwich, 1 Brownlow, 21 ; S. C. 2 Id. 158, &c. But there the plaintiflf sued on a covenant to save harmless, &o., during the term, which was for life ; and the breach assigned was a dis- turbance by an antecedent lease to one T. for years. So that the case was not different from that in Ho- bart, 3 ; the freehold not being brought in question. It is true that Lord Coke, who was chief justice, in giving his opinion, said, among other things, ' that covenant in law extends to lawful evictions, and to estates in being, and not where an estate is determined. So, also, he supposed, to express real covenants, which extend to freehold or inherit- ance, as warrant and defend, upon which a man cannot have an action if he be not ousted by one which hath title.' This last sentence is that upon which Chief Justice Parsons seems to have relied ; but it is manifest that Lord Coke was referring to the dif- ference between a covenant in law and an express covenant, and not to the cases in which coveflant would lie on a warranty. According to the case of Pincombe v. Rudge (Hob. 3), there is no doubt that covenant would lie, if the ouster by title paramount was not of the freehold, but for a term of years only. For is it to be presumed that Lord Coke had any notion in his mind, that if the ouster was in fee, covenant would lie on a warranty ? And the covenant in the case before the Court was not a warranty, but a covenant to save harmless and acquit. In short, equiv- alent to a covenant for quiet enjoy- ment. Besides, the case in Brown- low was decided in 10 Jac. 1 ; and that of Pincombe v. Budge, was finally decided in the Exchequer Chamber, by all the Judges, in 11 Jac. 1. And therefore, if there be any discrepancy between them, the principle estabhshed by all the Judges in the last case, is the true one. And it seems to me that there is a neces- sary implication in this last case against the doctrine of Chief Justice Parsons. At all events, the authority- he relies on does not support his dic- tum." The remainder of the note to the case of Pincombe v. Rudge, is from the pen of Mr. Justice Williams, and is, with the exception of the note by Mr. Wilcox to Foote v. Burnet, 10 Ohio, 322, the only instance in which the subjects of covenants for 214i THE COVENANT OF WARRANTY. The expression referred to has, however, been often quoted as if settled law, and in several cases it has been held that a personal action can, at the present day, be sup- ported upon a warranty as expressed in its ancient form ; ^ and although such a course of decision can certainly now do no harm, and would "no doubt correspond with the intention of the parties," ^ yet when it is sought to be based upon old and well-settled authority, it seems proper, in discussing the nature of the subject-matter, to refer to the discrepancy. Indeed, the distinction between a covenant of warranty and warranty itself, has been at times so overlooked, that it has been seriously urged that upon the former, even at the present day, nothing but a warrantia chartce can be brought.^ There is another and more important distinction between the 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 title has been treated in a con- erwise able argument, insisting that nected form on this side of the At because voucher and warrantia char- lantic. tse were the ancient remedies on the 1 Allison V. Allison, 1 Terger, former, they must still be so on the (Tenn.) 24 ; Booker v. Bell, 3 Bibb, latter. In Townsend v. Morris, 6 (Ken.) 173; Townsend v. Morris, Cowen, 123, there was more room 6 Cowen, (N. Y.) 127 ; Rickets v. ■ for such an argument, for there was Dickens, 1 Murphey, (N. Car.) 343. no covenant m /iCEcuerJa, but the form 2 Townsend v. Morris, supra. was as in the old charters, and the 3 Stout V. Jackson, 2 Randolph, Court, in deciding the obvious point (Va.) 148, (see three elaborate opin- that the assignee of a vendee could ions in that case) ; Tabb u. Binford, sue upon a covenant of warranty, 4 Leigh, (Va.) 132; Chapman v. intimated that the tenant of the free- Hoknes, 5 Halsted, (N. J.) 23 ; see hold always had his option to bring the remarks of Tilghman, Ch. J., in covenant, or resort to the real action. Jourdan v. Jourdan, 9 Serg. & Rawle, A passage in Bac. Ab. Covenant, C, (Pa.) 276. In Chapman v. Holmes, that, " in the eviction of a freehold, both the counsel and the Court seem no action of covenant will lie upon a to have overlooked the distinction warranty," was misquoted in Pitcher between a warranty and a covenant ; v. Livingstone, 4 Johns. 1 1 , by the ad- the counsel, in an elaborate and oth- dition of " a covwiant of warranty." THE COVENANT OF WARRANTY. 215 as a personal covenant (and such it will be remembered was always the case when the warranty was annexed to an estate less than freehold), yet, as respects the breach, there was an obvious distinction between the warranty when thus applied as a personal covenant, and a modern covenant of warranty itself. The former had a much wider scope than has been given to the latter. We have no reason to sup- pose that there was a difierent rule as to ther breach of a warranty when annexed to a leasehold, and when annexed to a freehold. Now, as respects the former, the covenant implied by the word demisi carried with it not only a cove- nant for quiet enjoyment but also that of a power to demise, and an eviction was not always necessary to its breach.^ The case of Holder v. Taylor,^ indeed, seems to make a differ- ence between the breach of the covenant of warranty and that for quiet enjoyment, while the law seems to have recog- nized no difference between a covenant of warranty of a leasehold and of a freehold.^ " The word demisi imports a power of letting, as dedi a power of giving," and although 1 Pomfret v. Ricroft, 1 Saunders, whereupon it was objected that no 322, note; Holder v. Taylor, Hobart, action of covenant would lie, because 12; Line !). Stephenson, 5 Bingham, there was no expulsion. But the N. C. 183; Crouch v. Fowle, 9 N. whole Court was of opinion that an Hamp. 219 ; Grannis v. Clark, 8 Cow- action did lie ; for the breach of the en, (N.Y.) 36 ; see infra, Chapter X. covenant was in that the lessor had 2 Hobart, 12. taken upon himself to demise that 3 Holder v. Taylor, Hobart, 12. which he could not; for the word " Holder brought an action of cove- demisi imports a power of letting as nant against Taylor and declared for dedi a power of giving, and it is not a lease for years made by the defend- reasonable to enforce the lessee to aut by the word demisi, which im- enter upon the land and so to commit ports a covenant ; and then shows a trespass. But if it were an express that at the time of the lease made, covenant for quiet enjoying, there, the lessor was not seized of the land, perhaps, it were otherwise." In the but a stranger, and so the cove- previous case of Pincombe v. Eudge, nant in law broken. But he did Hobart, 3, the action was on the war- not lay any actual entry by force of ranty implied by the word dedi. See his lease, nor any ejectment of the supra, p. 208. stranger, nor any claiming under him ; 216 THE COVENANT OF WARRANTY. on the warranty implied by the latter word a warrantia chartce was the proper remedy, and on the former an action of covenant, yet this makes no difference in the principle. Warranty, when annexed to a freehold, clearly possessed some of the properties of a covenant for seizin or for right to convey, as the provisions of the common law as to the judgment pro loco et tempore abundantly testify. And even when used as a personal covenant by reason of being an- nexed to a leasehold, it seems still to have preserved these properties, though the means of enforcing them were dif- ferent. But at the present day a covenant of warranty does not contain these properties. It will be found to be universally held that a breach of this covenant will be caused only by an eviction, actual or constructive, and, as has been said, " If a recovery could be supported upon it, without either allegation or proof of an eviction, it would, in effect, be de- ciding that the covenant of warranty contains within it, each of the five covenants for title, which would be a novel idea for conveyancers and professional men."^ 1 Patten v. McFarlane, 3 Penn. see infra, p. 219. A sti-iking illus- R. 422, per Kennedy, J. In Jeter tration of the text was shown in the u. Glenn, 9 Richardson's Law K. recent case of Dobbins v. Brown, (S. Car.) 378, the Court seemed to 2 Jones, (12 Penn. State R.) 75, consider that it was " advancing the where one released ' to the Com- purpose of the legislature, promot- monwealth of Pennsylvania all darn- ing the usual intention of parties and ages which might accrue from its answering the ends of justice, to say opening a canal through his land, that it contains all the five cove- and many years after conveyed the nants which English conveyancers land with a covenant of warranty, usually insert in conveyances in and the canal being subsequently fee-simple,'' except, perhaps, it was opened, the purchaser brought a suit doubted, of the covenant for fur- on the covenant, and obtained a ver- ther assurance. The construction, diet for a large sum. But the judg- however, which was from an early ment was reversed by the Supreme day given to the covenant of war- Court, who held that the mere dis- ranty in South Carolina was peculiar, turbance on the part of the Common- and has not been elsewhere followed, wealth, beingin the exercise of its right THE COVENANT OF WARRANTY. 217 Although, therefore, it has been often urged, in cases of hardship, that the modern covenant of warranty should, in of eminent domain, was no breach of the covenant, and that the prior re- lease of the damages, if an eviction of any right, was an eviction of the grantor's right, as the grantee could not be evicted of what he had not received ; that " the claim to com- pensation, being no more than the benefit of a chance, was an ideal thing, and though of appreciable value, it would not have fallen with- in the ancient warranty, which \ia,A regard to things corporeal, and dif- fered from its successor chiefly in regard to the voucher to warranty and the recompense m value ; it could not therefore fall within the modern covenant." It is evident that if the conveyance had contained a covenant for quiet enjoyment, in the form heretofore expressed, supra, the purchaser must have been enti- tled to recover. " The modern covenant of war- ranty," said Gibson, Ch. J., in the recent case of Stewart v. West, 2 Harris, (14 Penn. State R.) 338, "dif- fers from the ancient warranty, not because the latter bound the feoffor to defend the land, but because it bound him to render, not damages, but a recompense in kind for a breach of it. The form of the writ, as well as the nature of the recom- pense in value, was different, but the measure of the obligation was the same. The feoffor was bound by his warranty to defend the land ; the grantor is bound by his covenant to do as much, and no more, by defend- ing the grantee from eviction on a superior title. By reason of its strait- 19 ness, even this modern covenant of warranty has given place, in English conveyances to the common cove- nants for title against particular de- fects, which it does not reach. In Pennsylvania, it has been retained by unprofessed scriveners as a nos- trum supposed to contain the virtues of the whole five ; but its potency has not been recognized by the bench. The writ of warrantia chartEe was founded on an assize, or a writ of entry in the nature of an assize, brought against the feoffee ; and the covenant of the feoffor was to war- rant the land by defending the action — the modern writ of covenant is brought against the grantor to re- cover damages for a failure to do so. The gravamen, therefore, is not the defect of title, but the eviction con- sequent on it." In a note to the case of Paxton V. Lefferts, 3 Rawle, (Pa.) 68, from the pen of the father of the re- porter, the difference between the warranty and the covenant is thus adverted to : " Warranty, in its orig- inal form, has long been abohshed, both here and in England. The more plain and pliable form of cov- enant has been substituted. The grantor, for himself, his heirs, &c., covenants with the grantee, his heirs and assigns, that he and his heirs, executors and administrators, will warrant and defend the premises conveyed, against himself, his heirs, &c., either generally, or specially as the parties agree. This is prima facie a covenant to do what in the old form was expressly done, and it might 218 THE COVENANT OF WARRANTY. its application, do more than protect against a mere ouster of the possession, and should be made to partake of the nature of a covenant for seizin or of right to convey, yet such a construction lias heen almost universally denied, and admit of a curious construction. If by the warranty in its original na- ture, the warrantor was obliged to render land only, the covenantor might, perhaps, be entitled to tender land as a compliance with his cove- nant, and might also avail himself of all the niceties and subtleties which characterized the ancient doctrine. " It is true, that in some cases, damages were also recoverable by the warrantee. If a man be im- pleaded in assize, &c., and he brings a writ of warrantia chartaB, if the plaintiff recover his warranty, he shall recover his damages, and also to have the value of the land lost. Fitz. Nat. Brev. 315. But it would seem that the same rule did not take place, if the warrantor was vouched, and not sued by warrantia chartas. Br. Warr. Chart. 31. " We have no reason to believe, that, in this State, a covenantor ever attempted to discharge himself of the covenant to warrant and defend, by pleading that he was always ready to convey lands of equal value, or by showing that he had no notice of the eviction, and no demand of other land, &c. On the contrary, the cov- enant like all other covenants, has always been held to sound in dam- ages merely, which, after judgment, may be recovered out of the personal or real estate, as in other cases. If, indeed, the covenant admitted of such a construction, little advantage would be gained by it. In the case of Williamson v. Codrlngton, 1 Vesey, 510, which was a voluntary settle- ment on illegitimate children, of real and personal estate, with a covenant to warrant and defend, Lord Hard- wicke held, that the word warrant must be construed in a larger sense than warranty in its strict legal sense ; ' as large as defend.' There being personal property included in the covenant was adverted to by his lord- ship, but in reference to the real estate, the distinction was also taken. And the course of decision may, we think, be considered as now settled, that although the word warrant be introduced, yet the emphatical part of the covenant is to defend.* See Kent's Commentaries on American Law, Vol. 4, p. 457 ; in which the ' learned opinion ' of Judge Duncan, 11 Serg. & Eawle, 109, is cited with the praise it deserves. " The result on the whole seems to be, that a covenant to warrant and defend is to be construed a covenant running with the land, to defend the covenantee, his heirs and assigns ; and that it precludes the grantor and all his heirs and assigns, (not merely the heir at common law,) from claim- ing it; and it binds all his estate, real and personal, in case of eviction by a stranger, to the amount of the damages sustained." See passim the remarks in Hector v. Waugh, 17 Missouri, 24. * It was otherwise, however, by the old law, as Littleton says, (§ 733): "It seemeth that this word (defend), hath not the effect of warrantie nor comprehendetli the cause of warrantie." Seein/ra,p. 225, and note. THE COVENANT OF WARRANTY. 219 it is well settled that a covenant of warranty cannot at the present day he so construed as to import a covenant for seizin or of right to convey.^ In South Carolina, indeed, a course of decision, which does not seem to have been recognized or applied beyond the limits of that State, has enforced a different rule,^ and 1 Blydenburgh v. Cotheal, 1 Duer, (N.Y.) 195; Caldwell w. Kirkpatrick, 6 Alabama, 62 ; Allison v. Allison, 1 Terger, (Tenn.) 25, ; Crutcher v. Stump, 5 Haywood, (Tenn.) 100; overrruling, (said 'Catron, J., in Ran- dolph V. Meeks, Mart. & Yerg. 61,) the case of Talbot v. Bedford's Heirs, Cooke, 447, where Overton, J., had said, " the modern covenant to warrant and defend is inclusive of a covenant of seizin of an indefeasible estate, and of a right to convey, and as to the mode of redress, of quiet enjoy- ment;" Witty V. High tower, 12 Smedes & Marsh. (Miss.) 478 ; Griffin V. Falrbrother, 1 Fairfield, (Me.) 96 ; Vanderkarr v. Vanderkarr, 11 Johns. 122 ; Greenvault v. Davis, 4 Hill, (N. Y.) 643 ; Clark v. McAnulty, 3 Serg. & Rawle, (Pa.) 364. In Drury v. Shumway, D. Chip- man, (Verm.) 110, and Williams V. Weatherbee, 1 Aikens, (Verm.) 240, it seems to have been thought sufficient that a judgment had been recovered under the paramount title in an ejectment of which the cove- nantor had notice — in other words that the mere omission to " warrant and defend" the land was a final breach. " The last objection sup- poses," said the Court in the latter case, " that a final recovery in eject- ment, by a title adverse and para- mount, is not a breach of this cove- nant, but that the plaintlfif must have been actually turned out by writ of possession. In support of this, it is said that a covenant of warranty is the same in effect as a covenant for quiet en- joyment. But we regard a covenant of this description as somethino- more than one for quiet enjoyment. It is a covenant to defend, not the pos- session merely, but the land and the estate in it. Upon this occasion, we are to suppose the title derived from the defendant to have been fairly litigated and adjudged insufficient. The after ceremony of turning the plaintiff out of possession, being an act beyond the control of either of these parties, and depending wholly upon the pleasure of a stranger, ought not to affect the present rem- edy of the plaintiff". He has the stip- ulation of the defendant that he shall forever hold this land, in the character .in which he purchased it, as a free- holder in fee-simple, and this stipula- tion must not be violated, when the plaintiff" is devested of all estate and left in a precarious occupancy, as a trespasser to a third person." 2 The rule was thus stated in South Carolina, by Earle, J., in Moore v. Lanham, 3 Hill, 304 : " The covenant of warranty has always been consid- ered as broken, whenever a para- mount title could be shown in an- other ; and it has been uniformly held that the vendee might bring covenant on the warranty, or resist an action 220 THE COVENANT OF WARRANTY. give to a covenant of warranty the effect of a covenant for seizin ; and in Ohio, statutory provisions on the subject for- merly existed which have since been repealed.^ The peculiarities then of a warranty as distinguished from a covenant, may be thus summed up : First, as respects the process, which was either by voucher, commencing by a summons to warranty, and followed by a train of other writs,^ or, vi^here voucher was not admissi- ble, by a writ of warrantia chartce? Secondly, as respects the judgment ; this, in case of a voucher, or warrantia chartce after suit brought on the adverse title, was that the warrantee should recover other lands of equal value, and the judgment in the adverse suit became also the judgment in favor of the warrantee against the warrantor. If the warrantee chose to proceed before adverse suit brought, and obtained judgment on the ivar- for the price, wHliout actual eviction ; Pringle v. Whitten, 1 Bay, 254 ; JBell V. Higgins, Id. 32e ; Sumter v. Welch, 2 Id. 558 ; Champness v. Johnson, 1809 ; Johnson v. Viscon, 1811 ; Fur- man V. Elmore, 1812; Mackey v. Collins, 2 Nott&McCord, 186." See also Faries v. Smith, 11 Richardson's Law R. 82. The rule as to the cov- enant for quiet enjoyment seems to- be different; Singleton u., Allen, 2 Strobhart's Eq. E. 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. 1 " The insecurity of title to real estate in the Virginia military dis- trict," says Mr. Wilcox the reporter, in a note to Foote v. Burnett, 10 Ohio, 328, " is said to have given rise to a common practice there, of using no other covenant than the general warranty, on the ground that the grantor cannot be made liable on that covenant till actual eviction. The occupants of some large surveys in that district, who found themselves in quiet possession, but without any title, and so could neither improve the lands nor sell them, made appli- cation to the Legislature of Ohio, and in 1815 a statute was passed, under- taking to give a grantee (with a cov- enant of warranty) a remedy before eviction. The Act is said to have been so inartificiaUy penned as to be incapable of any reasonable con- struction. It was repealed in 1831 ; Chase's Laws, 855, 1906 ; see 1 Ohio Rep. 389 ; 2 Id. 346 ; 3 Id. 525." 2 The student will find a reference to these in a note to Careswell v. Vaughan, 2 Saunders, 32. ■5 A form of this writ is given ia Fitz. Nat. Brev. 134. THE COVENANT OF WARRANTY. 221 rantia chartce, this judgment, becoming a lien on all the lands of the warrantor, remained a security to the war- rantee until he should lose the lands warranted, when, and not before, he was entitled to execution upon the judg- ment. Thirdly, warranty, when expressed, bound only heirs when they were named, and being a covenant real, could not, in its strict sense, when applied to a freehold, by any possibility bind executors or administrators. But the cove- nant of warranty bound the latter, even when they were not named in the deed, on the famiHar principle that whenever a testator is himself bound by a covenant, his executor shall always be.^ Fourthly, warranty, whether annexed to a leasehold or a freehold, whether used as a personal covenant or otherwise, imported a right and power of granting which is denied to the covenant of warranty now in use. These, then, were the principal differences between a warranty and a covenant. Their points of resemblance were, First, that in case the warrantor had no other lands to ren- der in value, it seems that the warrantee was allowed dam- ages which could be levied from the personal property, and. Secondly, where the estate conveyed to the warrantee, or the estate sought to be recovered from him, was less than a freehold, the warranty was used as if it had been a personal covenant. On the other hand, it cannot be said that the modern covenant of warranty is synonymous with the covenant for quiet enjoyment in cases where the latter covenant is ex- pressed in the full form in which it is usually set forth in 1 Brooke's Ab. Covenants, pi. 12; is a covenant to be performed by the Viner's Ab. Covenant, D. ; Touch- person of the testator ; Hyde v. Dean stone, 178, 482 ; unless, of course, it of Windsor, Cro. Eliz. 553. 19* 22£ THE COVENANT OF WARRANTY. English conveyances, for, as was said in a late case, " A covenant for quiet enjoyment, which resembles the modern covenant of warranty, differs from it in this, that the former is broken by the very commencement of an action in the better title." ^ There is another distinction to be observed between the covenant of warranty and that for quiet enjoyment, growing from the peculiar property attributed in many States to the former covenant of passing an after-acquired estate by oper- ation of the doctrine of estoppel.^ As a general rule, such an efficacy does not seem to be attributed to the latter cov- enant. But, with these exceptions, it may be generally said that in the United States, the covenants of warranty and for quiet enjoyment are treated as synonymous. The same concur- rence of circumstances seems necessary to their breach, they equally possess the capacity for running with the land, and the rules by which their damages are measured is the same as to both. In this place may be noticed a covenant sometimes em- ployed on this side of the Atlantic, but rarely, if ever, in England, called the covenant of non-claim.^ It is inserted immediately after the habendum, and without the usual words of covenant being prefixed, and its form is generally 1 Stewai-t V. West, 2 Harris, (14 the premises," &c., the remark would iPenn. State R.) 338, per Gibson, lose its application, as the weight of man, 3 Metcalf, (Mass.) 121 ; Gibbs V. Thayer, 6 Gushing, (Mass.) 33 ; Miller V. Ewing, Id. 40. 2 Claunch v. Allen, 12 Alabama, 163 ; Trull v- Eastman, supra ; New- comb V. Presbrey, 8 Metcalf, 406, where Wilde, J., in delivering the opinion of the Court, said " It is not stated in the report of the case, that the deed to the demandant contained any covenant of warranty, and it has bpen argued by counsel on the as- sumption that it was a mere quit- claim deed ; but on looking into that deed, we find that it contains an ex- press covenant of warranty against all persons claiming from or under the said S. Presbrey. The words of the habendum are, ' to have and to hold the aforementioned premises to the said Newcomb, his heirs, and as- signs, forever, so that neither I, the said Simeon Presbrey, nor my heirs, nor any other person or persons claiming from or under me, shall or will by any way or means, have, claim or demand any right or title to the aforesaid premises.' That this clause in the deed amounts to a cov- enant of warranty, or of quiet enjoy- ment, against all persons claiming title under or from Simeon Presbrey cannot admit of a doubt. To consti- tute a covenant, it is not necessary that the word covenant, or any other particular word or words should be made use of; for any words in a deed, in what part soever found, from which the intent of the parties to enter into an engagement can be collected, are sufficient for that pur- pose." So, where in Gibbs v. Thayer, 6 Gushing, (Mass.) 32, the cove- 2:24 THE COVENANT OF WARRANTY. rights as to a recovery in damages. A contrary opinion has been, however, recently expressed in Maine, in a case whose peciiHar circumstances were such that the enforce- ment, under such a covenant, of the doctrine of estoppel, as that doctrine is generally supposed to exist throughout the New England States, would have rendered the decision one of great hardship, and it was held that the covenant of non-claim did not operate by way of estoppel or rebutter, and that it did not pass with the land to an assignee, and the same doctrine has been since recognized and applied in the same State.^ The principle upon which these decisions are supposed to rest will be considered in a subsequent part of this treatise.^ The covenant of warranty, as generally expressed, is in the following form : " That he the said (grantor) and his heirs, all and singu- lar the messuages and tenements, &c., hereby granted and mentioned or intended so to be, with the appurtenances, unto the said (grantee) his heirs and assigns, against him the said (grantor) and his heirs, and against all and every other person or persons lawfully claiming or to claim the same or anj?^ part thereof shall and will by these presents warrant and forever defend." And when the covenant is nant of non-claim was limited to the l Pike v. Galvin, 29 Maine, 187, grantor and his heirs, it was said : overruling Fairbanks v. Williamson, " This clause constitutes a covenant and White v. Erskine, supra ; and of warranty, to the extent of its im- see the dissenting opinion of Mr. port. It diifers from a general war- Justice Wells in 30 Maine, 539. ranty in this ; that one is a warranty ^ Partridge v. Patten, 33 Maine, against any and all paramount titles, 483. In the case of Cole v. Lee, 30 the other against the grantor himself, Maine, 396-7, however, no distinc- and all persons claiming under him," tion was observed between the cov- and in the very recent cases of Lo- enants of non-claim and of war- throp V. Snell, 11 Gushing, 453, ranty. (where the text was cited,) and Per- ^ Jnfra, Chapter IX. ter V. Sullivan, 7 Gray, (Mass.) 441, the same view was taken. . THE COVENANT OF WARRANTY. 225 a limited one, the words " by, from or under him, them or any of them," are inserted after the words " or any part thereof." The resemblance of this covenant to ancient form will at once be perceived. From what is said by Littleton, we may infer that these words, " warrant and forever defend," were those generally inserted in a warranty ; ^ although it does not appear that the word " defend " added any addi- tional force, as "it seemeth that it hath not the effect of warrantie, nor comprehendeth the cause of warrantie."^ The form, however, " warrant and forever defend," seems to have got into general use, and to have descended to the present time. Apart from the important word " warrant," the covenant. 1 " Also where it is contained in divers deeds these words in Latin, Ego el hcerides mei warrantizabimus et imperpetuum defendemus, it is to be seen what eiTect this word (defend- emus) hath in such deeds ; and it seemeth that it hath not the effect of warranty, nor comprehendeth in it the cause of warranty ; for if it should be so that it took the effect or cause of warranty, then it should be put into some fines levied in the King's Court ; and a man never saw that this word (defendemus) was in any fine, but only this word {warrantiza- bimus'), by which it seemeth that this word and verb (warrantizo) maketh the warranty, and is the cause of warranty, and no other word in our law ; " Litt. § 733. 2 " Of this," says, Coke (Co. Litt. 382 b), " Bracton writeth in this manner : Et ego et hmredes mei war- rantizabimus tali et hceredibus suis tantum vel tali et Timribus et assignatis et hceredibus assignatorum et eorum hceredibus, et acquietahimus et defen- demus eos totam terram illam cumper- tinentiis contra omnes gentes, Sfc. Per hoc autem quod dicit (ego et Jiceredes mei) obligat se et hceredes ad warran- tiam propinquos, et remotos, prcefentes et futures, et succedentes in infinitum. Per hoc autem quod dicit (warranti- zabimus) suscipit in se obligationem ad defendendum suum tenementum in possessione rei date et assignalos suos et eorum hceredes et omnes alios, ^c. Per hoc autem quod dicit (acquieta- bimus) obligat se et hceredes suos ad acquietandum si quis plus petierit ser- vilii vel aliud servitium quam in carta donationis continetur. Per hoc autem quod dicit (defendemus) obligat se et hceredes suos ad defendendum si quis relit servitutem ponere rei da- tce contra formam suce donationis." "Hereby"' (continues Coke), "it appears that neither defendere nor acquietare doth create a warrantie, but warrantizare only. And as ' Ego et hceredes mei warrantizabimus,' &c., in Latin, do create a warrantie, so ' I and my heirs shall warrant,' &c., in English doth create a warrantie 226 THE COVENANT OF WARRANTY. as expressed above, would seem to be no more tban an en- gagement that it should bar the covenantor and his heirs from ever claiming the estate, and that he and they should undertake to defend it when assailed by paramount title.-' The latter was, indeed, one of the consequences of a war- ranty, and its effect in this respect has been continued, though with modifications, down to the present time. Be- fore proceeding, then, to inquire into what will occasion a breach of this covenant by what is generally termed an " eviction," it seems proper to consider, in the first place, the right of the covenantee to cast the labor and responsi- bility of the defence upon his covenantor. The ancient practice of vouching to warranty has already been referred to. Partly, perhaps, from analogy to that practice, it is well settled in most, if not all of the United States, that, in general, upon suit being brought upon a paramount claim against one who is entitled to the benefit of a covenant of warranty, the latter can, by giving proper notice of this action to the party bound by that covenant and requiring him to defend it, relieve himself from the burden of being obliged afterwards to prove, in the action on the covenant, the validity of the title of the adverse claimant.^ 1 Stewart v. West, 2 Harris, (Pa.) son, 10 Wendell, (N. Y.) 205 ; Mi- 338. ner v. Clark, 15 Id. 427 ; Kelly v. 2 Swenk v. Stout, 2 Yeates, (Pa.) The Dutch Church, 2 Hill, (N. Y.) 470; Bender v. Fromberger, 4 Dal- 105; Morris v. Rowan, 2 Harrison, las, (Pa.) 436 ; Leather v. Poulteny, (N. J.) 307 ; Chapman v. Holmes, 5 4 Binney, (Pa.) 356; CoUingwood Halsted, (N. J.) 20 ; AVilson «. McEl- V. Irwin, 3 Watts, (Pa.) 310 ; Ives wee, 1 Strobhart, (S. Car.) 65 ; King V. Niles, 5 Id. 323 ; Paul v. Witman, 3 v. Kerr, 5 Ohio, 158 ; Booker v. Bell, Watts & Serg. (Pa.) 409 ; Williams 3 Bibb, (Ken.) 173 ; Prewit v. Ken- V. Weatherbee, 2 Aikens, (Verm.) ton, Id. 282 ; Cox v. Strode, 4 Id. 4 ; 337; Park v. Bates, 12 Vermont, Jones k. Waggoner, 7 J. J. Marshall, 381 ; Pitkin v. Leavitt, 13 Id. 379 ; (Ken.) 144 ; Davis v. Wilbourne, 1 Brown D. Taylor, Id. 631 ; Turner Hill, (S. Car.) 28 ; Middleton v. V. Goodrich, 26 Id. 708 ; Hamilton v. Thompson, 1 Spears, (S. Car.) 67 ; Cutts, 4 Mass. 353 ; Cooper v. Wat- Graham v. Tankerly, 15 Alabama, THE COVENANT OF WARRANTY. £^7 A similar course of decision has also been adopted in England, resting, however, rather upon general principles than any analogy to the old common-law practice of voucher, and notice of an adverse suit is obviously proper in all cases where one having the benefit of a covenant of indemnity, seeks to fix the liability of the covenantor by the same suit which decides his own.-' Cases have, at times, been presented in which the cov- enantee having, in the first instance, failed to acquire the possession of the subject of the purchase, and having brought suit upon the title conveyed by his vendor, has notified the latter to appear and prosecute that suit, and in the event of his failure to do so, has sought to make the judgment con- clusive upon him. In a recent case in Tennessee,^ the right of the covenantee thus to bind his covenantor was denied. It was said that provision was made by law for making the covenantor the defendant in the adverse action, but that no precedent could be found in which the converse of the rule was applied in making the covenantor a plaintiff. The question of title was therefore considered still an open one in the action on the covenant. But in Vermont the law has been differently decided, and it has been held, with more 645 ; Fields v. Hunter, 8 Missouri, ranting title " in a lease. In a note 128 ; Boyd v. Whitfield, 19 Arkan- to page 668, the reporter says, " a sas, 469; see Duffield v. Scott, 3 preliminaryobjectionwas taken, viz. : Term, 374, and 2 American Lead- that the defendants -were estopped ing Cases, 343, note to United States from insisting on the title of M. G., V. Howell. A covenantor has, how- because he had notice of the eject- ever, no right to insist upon being ment brought against the plaintifif", placed upon the record as a defend- and neglected to defend his title ; ant in the suit under the adverse ti- but as the judgment of the Court tie ; Linderman v. Berg, 2 Jones, was founded on the principal ques- (12 Penn. State E.) 301. tion only, it is thought unnecessary 1 Duffield u. Scott, 3 Term, 376 ; to enter into this and other minute Smith V. Compton, 3 Barn. & Adolph. points which were stated in the course 407, and see supra, p. 99. Pome- of the argument." roy V. Partington, 3 Term, 665, was 2 Ferrell o. Alder, 8 Humphreys, an action upon " a covenant war- (Tenn.) 44. g28 THE COVENANT OF WARRANTY. apparent reason, that upon a suit brought by the covenantee to recover the possession, a notice duly given by him to the covenantor would have the efiect of making the result of that suit conclusive upon the latter,^ and in recent^ cases in Georgia and Texas, the same view has been taken.^ The question now arises in the first place, what will con- stitute a proper notice of the suit brought under the adverse title. By the common law there was a regular writ, a sum- moneas ad warrantisandum, " whereupon if the sheriff returned that the vouchee is summoned, and he make de- fault, then a magne cape ad valentiam is awarded," &c. ; " but these writs have long become obsolete.* 1 In Park v. Bates, 12 Vermont, 361, the question was passed over witbout particular notice by the Court ; but it was settled in Pitkin V. Leavitt, 13 Vermont, 379, and Brown v. Taylor, Id. 637. So, by the Louisiana Code, " When the purchaser is himself obliged to com- mence judicial proceedings against a person disturbing his possession, he ought to notify his vendor, of the action which he is commencing, and the vendor, whether he undertake to conduct the suit for him or not, is obliged to indemnify fully, in case of condemnation." Art. 2495. 2 Gragg V. Richardson, 25 Georgia, 570 ; White v. Williams, 13 Texas, 258. " Li the ordinary case," said the Court in Gragg v. Richardson, " the purchaser after getting posses- sion is turned out of it by a writ against him, of which his warrantor has notice ; in the present case, the purchaser can never get possession, not even by the aid of a writ of which his warrantor has notice, and in the prosecution of which he takes part. The chance which the war- rantor in the one case has of assert- ing his title is as good as the chance which the warrantor in the other case has of asserting his title ; the purchaser who is prevented from ever getting the possession is at least as badly off as the purchaser who having got the possession is turned out of it; a judgment against the purchaser when he brings the eject- ment and vouches his warrantor is as much evidence of an adverse title paramount to the warrantor's, as is the judgment when the ejectment is brought against the purchaser, and he vouches the warrantor. There is therefore no substantial difference between the ordinary case and the present case." ^ Co. Litt. 101. ■* In actions where voucher was not admissible, the practice was not unlike our own, for, says Markham, Ch. J., in Year Book, 8 Ed. IV. 11, "If I recover from my warrantor a judgment 'pro loco et tempore, and then am impleaded in an action in which I cannot vouch, as an assize or scire facias, it is competent for me to THE COVENANT OF WARRANTY. In Pennsylvania, it has been held that " to have the efiect of depriving the warrantor of the right to show title, the notice should be unequivocal, certain and explicit; a knowledge of the actioti, and a notice to attend the trial will not do, unless it is attended with express notice that he will be required to defend the title ; " ^ and the same view seems to have been taken in a recent case in Arkansas.^ From this, and the expression also used, " the notices here were not produced," &c., it would hence not be un- reasonable to infer that the notice to be thus given should be in writing, but this has been decided in a case in New York ^ not to be necessary. " A parol notice," it was said, " gives the information to the grantor quite as well as a written one, and as there is no technical rule requiring such a notice to be in writing, no writing is necessary." From this, however, Bronson, J., dissented, saying, " This is not like a notice which will sometimes afiect the title of a party by showing it tainted with fraud. In these cases notice means only knowledge of a particular fact, and in general it is a matter of no moment in what form the information was received, or from what source it was derived. But here the notice, if it is to have any effect, is in itself a legal proceeding. It advises the warrantor that the title which he professed to grant is called in question; " and after referring to the old practice of voucher by a writ of summons he proceeded to say, '' as, in the one case, the right could only be asserted by means of a writ served by request iim from whom I have thus 470, where the passage in the text is recovered, to put in a plea for me, cited. and thus give him notice of the ao- 3 Miner t). Clark, 15 Wendell, 427, tion that is pending, as otherwise I notwithstanding it had been gener- shall not be allowed to have exe- ally said in Gilbert v. The Turnpike cution on my judgment." Company, 3 Johns. Cas. 108, and In 1 Paul V. Witman, 3 Watts & Serg. re Cooper, 15 Johns. 533, " A notice 410. in legal proceedings means a written 2 Boyd V. Whitfield, 19 Arkansas, notice." 20 £30 THE COVENANT OF WARRANTY. a public officer, he ought not, in the other, to be prejudiced by anything less definite and formal than a writing which will advise him of what has been done, and what he is required to do." The view thus expressed, is not only clear- ly supported by analogy to the former practice, but has the merit of being conducive to certainty in a proceeding whose effect is conclusive upon a question of title ; and as it has been recently decided in Vermont that in case of the death of the covenantor no further notice need be given to his representatives,^ some hardship might ensue if a verbal notice were suffered to bind the former in the first instance, as such a message, resting in parol, may leave no trace be- hind it, while, if written, something might still be in exist- ence to warn or notify them. In considering, in the next place, the effect of a notice, it seems to be settled that when the plaintiff in the action of covenant has produced evidence sufficient to satisfy the Court that the notice was properly given in all respects, the validity of the adverse title cannot be inquired into by the defendant (except under the authority of a case to be pres- ently referred to,^ to show that it may have been derived from the covenantee himself). It would seem, however, that the question of notice is, to some extent, a matter for . the jury. Although it is the province of the Court to de- 1 Brown n. Taylor, 13 Vermont, 631. conveyed. On serving that notice, " We are of opinion," said the Court, it became the duty of McDaniel to " that the plaintiff having commenc- make proof of his title in that action. ed an action of ejectment against a and this duty devolved upon his legal person in possession of the lands representatives without any further deeded and warranted to them by notice from the plaintiffs." In this McDaniel, and having given notice case, however, not only was the no- thereof to McDaniel in his lifetime, tice written, but thS covenantor had were not required to do anything appeared by counsel in the cause, further in order eventually to charge 2 Kelly v. The Dutch Church of him or his legal representatives with Schenectady, 2 Hill, 105. See in/ra, the consequences of a failure to es- p. 234 and note, tablish a title in them to the lands THE COVENANT OF WARRANTY. SSI termiiie what is and what is not a proper and sufficient notice as to time,^ and certainty, yet the fact of its reception seems to be within the province of the jury,^ except in the 1 It is hardly necessary to observe, that the judgment would not be con- clusive upon the party bound by the covenant, if the notice was not giv- en in reasonable time. The follow- ing remarks of Johnson, J., in Davis y. Wilbourne, 1 Hill, (S. Car.) 28, as to the local rules on this sub- ject in South Carolina, were approv- ingly quoted in Middleton v. Thomp- son, 1 Spears, (S. Car.) 69. "No- tice in cases within the summary jurisdiction, should be given at or before the return of the process. In cases within the general jurisdiction, notice at any time before the expira- tion of the rule to plead. The ob- ject is to enable the warrantor to come in and defend his title. He ought, therefore, to have reasonable time to prepare for it, and the time which the law allows to a defendant, furnishes perhaps the safest rule. In the first class of cases, however, the process might be served on the last hour of the last day before the return, so as to render the service of the notice impracticable before the return. In these cases, notice within a reasonable time afterwards, would be all that could be expected. So, where the warrantee has entered an appearance, and put in his plea to the merits, I should think that notice even after the continuance, if the warrantor had time to prepare evi- dence for the trial, would be suffi- cient. 2 Such at least was the determina- tion in Collingwood v. Irwin, 3 Watts, (Pa.) 310, where the former had con- veyed to the latter with covenant of warranty, and the latter had been dispossessed, under a judgment in ejectment, obtained against him by one Robinson. " The third proposi- tion," said Kennedy, J., who deliv- ered the opinion of the Court, " of- fered to be proved was, that the title of Irwin to the land under the deed of conveyance, made to him by the plaintiff in error, was better than that of Robinson's under which he was evicted from the land. The testi- mony was clearly admissible ; for the plaintiff in error was no party on the record to the judgment in eject- ment, under which Irwin was turned out of possession of the land. The judgment in ejectment was therefore only prima facie evidence, as against the plaintiff in error, of Robinson's title to the land being better than that of Irwin's ; but it is alleged that the plaintiff in error had notice of the commencement and pendency of the action of ejectment, and it is, therefore, concluded by the judgment rendered in it in favor of Robinson's title. Supposing this to be so, how does it appear that he had such no- tice ? Certainly not by any exhibi- tion of the record of the action of ejectment, and the judgment given in it ; because, as already observed, he is not a party on the record of it ; neither does it appear by any admis- sion of his, placed upon the record of this suit. Whether he had such notice or not, was then a matter in pais, and became a question of fact, to be decided by the juiy, and not 232 THE COA-ENANT OF WARRANTY. single case where the party bound by the covenant is made a party to, or has placed himself upon the record of the adverse suit. Indeed, unless the party bound by the cove- nant is so notified or vouched that he becomes, either actu- ally, or constructively, the party to the suit by which the land is sought to be recovered from the covenantee, there is no room for the application of the rule that the judgment of a Court of competent jurisdiction cannot be inquired into collaterally ; for the exception is as well settled as the rule itself, that the rule applies only to those who are said to be parties or privies to the action. Where the covenan- tor is properly notified, he becomes the latter, if not the former.^ Where he is not thus notified, the rule loses its application. But the mere fact of making a notice of an adverse suit by the Court ; but the Court, by re- jecting the evidence on this ground, must necessarily have decided on the fact, that the plaintiff in error had such notice. Under this point of view, I apprehend the Court erred ; for even in case evidence of a regu- lar notice from Irwin to Collingwood of the action of ejectment being brought against him, with a request to appear and defend against it, had been given by Irwin, still as long as such notice and request were not ad- mitted by Collingwood, it was the duty of the Court below to have ad- mitted the evidence in regard to the title to the land, and afterwards to have directed the jury that if, from the evidence, they believed that Col- lingwood was notified by Irwin or his attorney, of the action of the eject- ment being brought, and was re- quested likewise to appear and de- fend against it, they were to consider him bound and concluded by the judgment rendered in it; and wheth- er Irwin had a better title to the land than Robinson or not, was a question which they could not decide accord- ing to any opinion of their own, which they might form by an examination of their respective titles, but were bound to decide it according to the judgment given upon it in the action of ejectment." As, therefore, it did not appear that the notice in this case was as unequivocal, certain and explicit, as it was afterwards said in Paul V. Witman, 3 Watts & Serg. 410, that a notice ought to be, but was in some degree calculated to mislead, it was held that the question of title was fairly open to be decided according to the whole evidence which might have been given at the trial by both parties. 1 Paul V. Witman, 3 Watts & Serg. (Pa.) 410. THE COVENANT OF WAKRANTY. i^3S conclusive upon a covenantor in a subsequent action against him, might, in many cases, work extreme injustice. Evi- dence of the title under which the recovery was had might not, and in most cases it is presumed would not appear upon the record, and yet that title might be one derived from the covenantee himself subsequent to the purchase. To exclude evidence of this, notwithstanding a notice, would be obviously improper.^ The only question which therefore 1 Booker v. Bell, 3 Bibb, (Ken.) 175 ; Pitkin v. Leavitt, 13 Vermont, ' 384; Wilson v. MoElwee, 1 Strob- hart, (S. Car.) 66. The following remarks of Wardlaw, J., in Middle- ton u. Thompson, 1 Spears, (S. Car.) 73, are of general application, though contained in a dissenting opinion. " In many cases, where a record of judgment is not proof of the truth of the matters recorded, it is evidence of its own existence, and of the le- gal consequences thence deducible. Hence, in cases of indemnity, the judgment showing a recovery against the indemnified, has been admitted as evidence of his loss, both as to the extent and as to his legal liability ; but notice to the person bound to indemnify, is usually referred to as strengthening the evidence as to com- petency as Well as effect. See Duf- field V. Scott, 3 Term, 374; Clark V. Carrington, 7 Cranch, 322 ; Kip V. Brigham, 7 Johns. 1 70. By anal- ogy to such cases, and in imitation of the voucher under the ancient warranty, the modern practice of giving notice to one who is bound in a covenant running with the land, seems to have grown up, and to have been gradually extended to all cases of covenants to warrant either land or personalty, and to all cases where 20* recovery ever will be sought by one who has been sued, in the event of recovery against him. The cases on the subject are mostly American, be- cause of the much more frequent oc- casion for the practice in this country. The principal cases I have consulted, to some of which I will hereafter re- fer, are, Bender v. Fromberger, 4 Dallas, 436, note; Leather v. Poulte- ney, 4 Binney, 352 ; Hamilton v. Cutts, 4 Mass. 352 ; Blasdale v. Babcock, 1 Johns. R. 517; Waldo v. Long, 7 Id. 174; Sanders v. Hamiltoii, 2 Haywood, 236-282 ; and in our own State, Goodwyn v. Taylor, 2 Brev. 171 ; Whitmore u. Casey, 2 Id. 424 ; Bond's Adms. v. Ward, 1 N. & M'C. 201 ; Davis v. Wilbourne, 1 Hill, 29 ; and the MSS. case of Allen v. Round- tree, Columbia, May Term, 1882, Book 5, p. 393. To give the vendee the advantage of the warrantor's in- formation about the title, and to save as well the trouble and expense of two trials of the same matter, as the confusion and injustice which would result from conflicting verdicts on the same evidence, the recovery against the vendee is admitted as evidence for him in his action against the vendor with warranty, if the vendor had reasonable notice of the suit, and the validity of the title con- £S4i THE COVENANT OF WARRANTY. arises is as to the burden of proof. On whom is this to be thrown, when the record does not on its face set forth the title 1 So far as the plaintiff, in his action on the covenant, must, notwithstanding a notice given by him, affirmatively show by evidence, dehors the record, that the recovery against him was under a title not derived from himself, the question admits of easy solution. It will be remembered that in a declaration for a breach of the covenant for quiet enjoyment it is not merely necessary to allege that the eviction was made under paramount title, but that it was " existing before and at the time of the conveyance to the plaintiff," as the eviction might indeed be under a paramount title, but one which had been derived from the plaintifi' himself, for which, of course, his covenantor would not be responsible.^ The same principle is applied to the doctrine of notice. Beyond this point, it does not seem necessary for the plaintiff to go. Where he has given a sufficient notice, it is believed to be enough if he show that the title under which the adverse judgment was obtained was not one derived subsequent to the execution of the deed to himself.^ veyed by Mm was tried ; more espe- proof of the notice to the warrantor, cially if the vendor assisted in the and proof that (as said in Davis v. defence. The failure of the war- Wilbourne) his title was in issue, rantor's eiforts to defend the suit, is will be conclusive that the plaintiff's evidence of a breach of his under- title was better than the one which taking to warrant and defend the was warranted." title conveyed by him, as perhaps is l See supra, p. 182. his neglect of notice to defend. Ac- 2 Phelps v. Sawyer, 1 Aikens, cording to our own decisions, by the (Verm.) 157 ; Booker v. Bell, 3 Bibb, proper notice, the warrantor has (Ken.) 375 ; Swenk v. Stout, 2 been made privy to the suit, and is Yeates, 470, (though judgment was in concluded by a judgment for the that case given for the plaintiff on the plaintiff, from disputing what such ground that all the facts averred in judgment ascertains, that the plain- the declaration must, on demurrer, be tiff had a title better than the de- taken as true). Thus in Kelly v. The fendant ; .and this judgment, with Dutch Church of Schenectady, 2 THE COVENANT OF WARRANTY. 285 The next question to be considered in this connection is as to the effect of a judgment where there has been no Hill, (N. T.) 113, Bronson, J., held the following language : " But it is^ said that as the defendants had no- tice, and were requested to defend the ejectment suits, they are now es- topped from setting up their title, and that question remains to be con- sidered. Whether the defendants took part and aided the plaintiff in the defence of the suits brought against him, does not appear, but they must at least have furnished him with the means of setting up their title, for it was given in evi- dence on the trial. And this case is, I think, plainly distinguishable from those to which we have been referred in relation to the effect of notice, for the reason that the defendant's title was not only in evidence in the for- mer suits, but it was virtually admits ted to be a good title. The plaintiffs in those actions did not recover on the ground that their right was supe- rior to that of the Dutch Church, but on the ground that the defendant in those suits was precluded by the acts and declarations of his immediate grantors from sheltering himself un- der the good title of the church. If the defendants, on receiving notice of a suit upon a title apparently su- perior to theirs, had neglected to ap- pear and defend, and their title had not been given in evidence, or if, when in evidence, it had been ad- judged defective, they would proba- bly be estopped from setting it up in answer to an action on the covenants. But that is not this case. " There is a. short, and, I think, conclusive view of this question. The plaintiff had necessarily averred that he was evicted by persons having a title paramount to that of the defend- ants. Upon that averment issue has been joined. The plaintiff holds the affirmative, mid the burden of proof lies upon him. He has not only failed to prove the averment true, but in attempting to do so, he has proved it false. It was not enough for the plaintiff to show that he gave the defendants notice of the suits brought against him, for the obvious reason that the claimants may have recov- ered on a right or title subordinate to that of the defendants. It was necessary, therefore, for the plaintiff to go further, and show on what ground the claimants succeeded. He did so ; and the evidence has proved fatal to his cause." The decision in Buckels V. Mouzon, 1 Strobhart, (S. Car.) 448, proceeded in effect upon the same grounds. It has, however, been decided that when judgment has been once recov- ered against the covenantor, equity will not enjoin that judgment on the ground of the eviction not having been by title paramount, that be- ing a fact exclusively cognizable by the common-law courts. Yelton v. Hawkins, 2 J. J. Marshall, (Ken.) 1. There is indeed a suggestion, towards the latter part of the decision, that " the utmost the Chancellor could have done was to have decreed a new trial, on the establishment of facts sufficient for that purpose," but this, it is conceived, must not be un- derstood as weakening the point cited in the text as actually decided, as the Chancellor had enjoined the judg- ment, which decree the Court of Ap- 286 THE COVENANT OF WARRANTY. notice to the party bound by the covenant, of the suit upon which that judgment is founded. It seems to have been thought, on the one hand, that on the presumption of omnia rite acta the record of the adverse suit is of itself prima facie evidence that the title on which the judgment therein is based, is a paramount one, it being, however, perfectly competent for the defendant to inquire into the merits of that judgment.-' But the weight of authority inclines to the position that although the record of the adverse proceeding may be evidence of eviction,^ yet that is not even prima facie evidence that such eviction was under title paramount. peals reversed, and the injunction could scarcely have proceeded on the ground alleged in the bill that the trial came on unexpectedly to the covenantor, his counsel having as- sured him that it could not be reach- ed that day. 1 CoUingwood v. Irwin, 3 Watts, (Pa.) 310, supra, p. 231 ; Paul v. Witn man, 3 Watts & Serg. (Pa.) 409. See passim City of Lowell v. Parker, 10 Metcalf, (Mass.) 315. " If no such no- tice," said Williams, Ch. J., in Pitkin w. Leavitt, 13 Vermont, 384, " be given of the pendency of the action of eject- ment, the recovery may be evidence of an eviction, but according to the decision in Williams v. Weather- bee, 2 Aikens, (Verm.) 329, it must be accompanied with other evidence that it was not on the strength of an older and better title. Possibly it would have been better in that case to have considered the record as prima facie evidence of all the material al- legations, turning the burden of proof on the party who was bound to make a good title, and who was supposed to know what title he had when he gave the deed." 2 It is presumed that the record would or would not be evidence of eviction, according as there did or did not appear upon its face, evidence of the execution of a writ of possession, as in Fields v. Hunter, 8 Missouri, 128; Sisk v. AVoodrufif, 15 Illinois, 15, unless indeed, the record of the judgment would, according to the course of the decision in the State, be itself deemed sufficient evidence, in most cases, of an eviction, as seems to have been thought in Kentucky, in Booker v. Bell, 3 Bibb, 1 75 ; Han- son V. Buokner, 4 Dana, 254 ; (Davis V. Logan, 5 B. Monroe, 341, was in equity, and there was a general ad- justment of title and damages) ; but such a coarse of decision has been frequently denied by cases which hold that a judgment itself, unaccom- panied by evidence of an actual or constructive change of possession, is no evidence of an eviction ; McDon- nell V. Hunter, Dudley, (Geo.) 4 ; Paul V. Witman, 3 Watts & Sero-. 410 ; Webb v. Alexander, 7 Wendell, 286 ; Feriss v. Harshea, Mart. & Yerg. (Tenn.) 55 ; Hoy v. Taliafer- ro, 8 Smedes & Marsh. (Miss.) 741 ; THE COVENANT OF WARRANTY. 237 as against one who has been neither a party nor a privy to the proceeding.'^ But however prudent it may be for a purchaser, when sued under an adverse title, to give notice to the party bound by the covenant and require him to defend the suit, it Dennis v. Heath, 11 Id. 218 ; Miller V. Avery, 2 Barb. Ch. (N. Y.) 582. 1 Booker v. Bell, 3 Bibb, 175; Pre-wit V. Kenton, Id. 282 ; Devour V. Johnson, Id. 410 ; Cox v. Strode, 4 Id. 4 ; Hanson v. Buckner, 4 Dana, 262; Graham u. Tankersley, 1 5 Alar bama, 645, (see also King v. Norman, 4 Com. Bench, 883 ; note to U. States V. Howell, 2 Amer. Lead. Cases, 446); Stevens v. Jack, 3 Yerger, (Tenn.) 403 ; Fields v. Hunter, 8 Missouri, 128 ; Sisk v. Woodruff, 15 Illinois, 15. In Somerville v. Hamilton, 4 Wheatou, 230, the question was left undecided, the Court being divided in opinion. In Sisk v. Woodruff, supra, the point was carefully con- sidered. " On wTiom," said Treat, Ch. J., who delivered the opinion, " does the law cast the burden of proof, where the warrantor had no notice of the pendency of the action of ejectment ? Some Courts hold that the record furnishes prima facie evidence of an eviction under valid title, and thereby compel the war- rantor to prove affirmatively that he has not bi-oken his covenant. Other Courts require the plaintiff to prove by evidence dehors the record, that the judgment was founded upon an adverse and superior title. . . The weight of authority in this coun- try seems to favor this conclusion. We regard it as much the best rule. It is a familiar principle of law, that a man shall not be bound by a judg- ment pronounced in a proceeding to which he is not a party, actually or constructively. He should be allowed to appear in the case and adduce evidence in support of his rights, be- fore he is concluded by the judgment. If a warrantor has no notice of the action against his grantee, and no op- portunity of showing therein that he transferred a good title, he cannot in any sense be considered a party to the action, and therefore ought not to be bound by any adjudication of the question of title. But if he has no- tice, he may become a party to the suit, and it is his own fault, if his title is not fully presented and in- vestigated. He then has an opportu- nity of sustaining the title he has warranted, and defeating a recovery by the plaintiff in ejectment. If he fails to do this successfully, he is con- cluded from afterwards asserting the superiority of that title, and compel- led to refund the purchase-money, with interest. By giving the war- rantor notice, the defendant in eject- ment may relieve himself from the burden of afterwards proving the validity of the title under which he is evicted. But if he neglects to give the notice, he must come pre- pared to prove on the trial of the action of covenant, that he was evict- ed by force of an adverse and supe- rior title; in other words, he must show that the warrantor, by appear- ing and defending the action of eject- ment, could not have prevented a recovery. This rule imposes no hard- 288 THE COVENANT OF WARRANTY. does not seem necessary to a support of the former's rights in the action on the covenant that such notice he given.^ This was otherwise at the common law in case of war- ranty. Although it was only in real actions that the war- rantee was permitted to vouch his warrantor, yet there were many of these in which voucher was not admissible,^ and if he were impleaded in any action in which voucher was ad- missible, it then became his duty to vouch his grantor to warranty; " and if he will not vouch him, he shall not after- wards have a writ of warrantia chartce."^ Although un- der the more modern covenant of warranty, the substitute for ship upon a party. The giving of notice subjects him to but little in- convenience. It by no means fol- lows that a judgment in ejectment against a grantee is founded upon the invalidity of the title derived from the grantor. It may be obtained by collusion, by a failure of the de- fendant to make proof of the title under which he entered, or upon a conveyance from him, or under a tax title originating in his own default. There is no good reason for requir- ing, a warrantor to show in the first instance, that his covenant has not been broken. In this case, Sisk had no notice of the pendency of the action of ejectment ; and the record of the proceedings had therein was only evidence of the eviction of Woodruff. It was incumbent on the latter to prove in addition, that the eviction was under title paramount." 1 King V. Kerr, 5 Ohio, 158 ; Duf- field V. Scott, 3 Term, 376; Smith V. Compton, 3 Barn. & Adolph. 408. Sir E. Sugden says positively, " A purchaser is not bound to give notice of an adverse suit to the covenantor." 2 Sugden on Vendors, 540. So, by the Scotch law, " Regularly, the disponee, when the eviction is threatened, ought to intimate his dis- tress to the disponer, that he may de- fend the right granted by himself; but though such intimation should not be made, the disponee does not lose his right of recourse, unless it should appear that in the process of eviction, he has omitted a relevant defence or subjected himself to an incompetent means of proof" Erskine's Insti- tutes, Vol. 1, p. 132. 2 Supra, p. 205. 3 Fitz. Nat. Brev. 134 ; Co. Litt. 101 b ; 8 Ed. IV. 11, per Markham, Ch. J. So, by the Spanish law, a vendor, if not " cited to warranty," is not liable at all, and the vendee loses all recourse to him. By the Code of Louisiana, " the purchaser threatened with eviction, who wishes to preserve his right of warranty against the vendor, should notify the latter in time, of the interference which he has experienced. This no- tification is usually given by calling in the vendor to defend the action which has been instituted against the purchaser. In the absence of this notification, or if it has not been made in due time, that is, in time for THE COVENANT OF WARRANTY. 239 voucher, notice, seems not necessary to be given, yet its ad- vantage is, as has been seen, to enable the covenantee to re- cover on less testimony, since he is then not obliged to show under what title the recovery was had, except that it was not a title derived since the purchase from the covenantor. In reviewing then what has been said on the subject of notice to the covenantor of the adverse proceedings, the following points appear to be settled by the weight of authority : First. The notice must be distinct and unequivocal, and expressly require the party bound by the covenant to appear and defend the adverse suit. Secondly. If such notice appear upon the record of that suit, or if the covenantor be made a party to it, the Court will, in the action on the covenant, be authorized to instruct the jury that the recovery in that suit is conclusive upon and binds the defendant in the action on the covenant. Thirdly. If the notice do not thus appear on the record, the question of conclusiveness of the judgment will depend upon the belief of the jury as to the reception of the notice. Fourthly. If the record of the adverse suit does not exhibit on its face the title under which the recovery was had, the the vendor to defend himself, the question as to the costs had ever been warranty is lost; provided, however, made to depend upon the fact of no- that the vendor shall show that he tice." See Duffield w. Scott, 3 Term, possessed proofs which would have 3 76; Smith a. Compton, 3 Barn. & occasioned the rejection of the de- Adolph. 408, and supra, pp. 99, 227. mand, and which have not been em- There are several States in which ployed, because he was not summon- provision seems to be made by stat- ed in time." Art. 2493-4. By the ute, or perhaps local custom, for civil law the vendor is not liable for vouching the covenantor. Where his vendee's costs in defending the such is the case, I am not aware action, unless cited to warranty. In whether the old common-law rule is Morris v. Eowan, 2 Harrison, (N. J.) or is not enforced in the event of his 307, the Court, " after looking at all not being thus vouched, ■the authorities, did not find that the 240 THE COVENANT OF WARRANTY. plaintiff in the action on the covenant must, notwithstanding proper notice has been given, prove that such title did not accrue subsequently to the deed to himself. Fifthly. If no notice has been given, the record of such adverse suit is not even prima facie evidence that the title was a paramount one, though it may under some circum- stances, be evidence of eviction, and Sixthly. It is not indispensable to the recovery on the covenant, that notice of the adverse suit shall have been in any way given. Except where there is some peculiar local construction of the covenant of warranty, such as prevails in South Carolina, and formerly did in Ohio,^ it is laid down as a technical rule in every case in which the question has been raised, that " the covenants of warranty and for quiet enjoyment are broken only by an eviction." ^ But owing to an unwilling- ness on the one hand to subject the covenantee to the trouble, delay, expense, and sometimes idle form which a narrow interpretation of the term eviction would frequently impose, and, on the other hand, to a fear of the encourage- ment to negligence, looseness of practice and perhaps fraud, to which an enlarged interpretation is supposed to give rise, 1 See supra, p. 219. It is not surprising that in deciding 3 " The great difficalty arising in what shall be considered, not as acts this as in many other cases," said of eviction, but as acts equivalent in Koerner, J., in Beebe v. Swartwout, lavp to actual eviction, and what shall 3 Gilman, (111.) 179, " consists in this, not be so considered, some conflict of that Courts have departed — and I views has occurred ; so much so, that think not improperly — from the stern it may almost be said that when no technical rules of requiring actual actual legal eviction has taken place, ouster and eviction in cases both of no general rule applicable to all cases breach of warranty and covenant for can be laid down, and each particu- quiet enjoyment, and have held many lar case must be decided upon its own acts, or rather the concurrence of merits." It is believed, however, that certain acts, as being equivalent to at the present day, the cases admit of actual eviction by due process of law. a tolerably harmonious classification. THE COVENANT OF WARRANTY. 24*1 while the cases are thus unanimous as to the general prin- ciple, its application has not been unattended with diffi- culty.^ The cases upon this subject may perhaps be classed under two principal heads, — ■ first, those where the dispossession is actual ; and secondly, where there is a virtual or construc- tive eviction. Under the first of these heads may be classed. First. Cases where the actual dispossession is by process of law, consequent upon a judgment. Second. Where the actual dispossession is caused by the exercise of the common-law right of entry ; and, Third. Where the possession is voluntarily, though act- ually abandoned or surrendered to the adverse title ; these constituting the three subdivisions under the head of act- ual eviction. Under the head of constructive eviction, the cases may be ranked in four classes ; First. Where the covenantee has never had any actual possession, having never been able to obtain it, by reason of the adverse title. Second. Where, after the establishment of the adverse title by a judgment, the covenantee accepts a lease or other conveyance under it, and remains in possession. Third. Where he does so even although no judgment has established the adverse title ; and. Fourth. Where the eviction is not of the land itself, but of something which represents the land, or of some incident to its enjoyment. 1 For the rules of the Civil Law on melle, par M. Barthelot. By the Lou- the subject of eviction, reference may isiana Code, " The eviction is the be had to Pothier, Cont. de Vente, n. loss, suflFered by the buyer, of the to- 82, 86, 100, 102, 166 to 183 ; Trop- tality of the thing sold, or of -a part long, Ch. VI. n. 415-463; Trdite thereof, occasioned by the right or des Evictions et de la Garrantie For- claim of a third person.'' Art. 2476. 21 24l2 THE COVENANT OF WARRANTY. First. There can hardly be said to be a class of cases, now- entitled to rank as authorrty, which hold that an actual dis- possession by process of law consequent upon a judgment is necessary to a breach of the covenant of warranty.-^ In an early case in Massachusetts ^ the Court said, " We are all of opinion that to form an eviction, according to its strict and technical meaning, a judgment of Court is necessary. But we are inclined to give to the term, a more extended signification, and to understand it in this case as synonymous with ouster." In the case of Lansing v. Van Alstyne, however, decided in New York before 1829,^ it was con- sidered that " the previous cases in that State, taken together, show that to constitute an eviction by a stranger there must be a disturbance of the possession under a paramount title by due process of law," and although in the case before the Court, the dispossession had been an actual one, and made under a paramount and not a tortious title, a plea was held bad " for not showing process of law to war- rant the expulsion," and in a subsequent case in the same State, a similar position was taken.* But in the cases thus referred to,^ the term " lawful eviction," when used, was so employed as distinguished from tortious eviction, to which, as we have seen, the covenant for quiet enjoyment does not extend,® nor, by analogy, does the covenant of warranty ; and as those cases went very far in support of the doctrine of actual dispossession, no more was meant when they used 1 This passage of the text was * See Webb v. Alexander, 7 Wen- cited and approved in the late case dell, (N. Y.) 285. of Funk V. Cresswell, 5 Clarke, 5 Greenby v. Wilcocks, 2 Johns. (Iowa,) 86. (N. y.) 1 ; Waldron v. McCarty, 3 Id. 2 Hamilton v. Cutt«, 4 Mass. 352, 473 ; Kortz v. Carpenter, 5 Id. 120 ; per Parsons, Ch. J. Vanderkarr v. Vanderkarr, H Id. 3 Cited in a note to 2 Wendell, 563. 122; and Kerr v. Shaw, 13 Id. The date of the case is not given, but 238. that in which it is cited was decided 6 See supra, p. 165. in 1829. THE COVENANT OF WARRANTY. 243 the term " by legal process," than that " the covenantee ought not to stop short of an actual ouster ; if he naeans to rely upon his covenant, he has no right to make any com- promise until an actual eviction has been shown." ^ It was never intended by those cases to deny a remedy upon the covenant where the purchaser was ousted by virtue of a com- mon law or a statutory right of entry under the better title ;^ and in a more recent case in New York,^ as well as else- where, the authority of Lansing v. Van Alstyne has been virtually denied,* while in England, where, in a case before the King's Bench, in 1792, a declaration on a covenant for quiet enjoyment was demurred to because it did not show an ouster " under any legal process of law," the report says that " this was abandoned, the precedents being against it."^ Second. Indeed, to give such an interpretation to the term 1 Kerr v. Shaw, 13 Johns. 238. 2 Kerr c. Shaw seems to have meant that, after judgment, the cove- nantee could not retire, but must wait until actually turned out, which in such case could only be by an ex- ecution ; but not to have gone to the extent that in no case could there be an eviction unless by an execution. 3 Greenvault v. Davis, 4 Hill, (N. Y.) 645. "Upon principle," said Bronson, J., " I can see no rea- son for requiring an eviction by legal process. Whenever the grantee is ousted of the possession by one hav- ing a lawful title to the property, par- amount to the title of the grantor, the covenant of warranty and for quiet enjoyment are broken and the grantee may sue." * Cobb V. Wellborn, 2 Devereux, (N. Car.) 390 ; Grist d. Hodges, 3 Id. 200 ; Hagler v. Simpson, Busbee's Law R. (N. Car.) 386; Parker u. Dunn, 2 Jones's Law K. (N. Car.) 204 ; Leary v. Durham, 4 Georgia, 593 ; Booth V. Starr, 5 Day, (Conn.) 282. In fact, all the cases cited under the en- suing heads virtually overrule such a position. In Stewart v. Drake, 4 Hal- sted, (N. J.) 141, the Court said that " the cases cited in the argument from Johnson's Reports, as a whole, decide that there must be a disturb- ance in, or deprivation or cessation of the possession, by the prosecution and operation of legal measures ; " but the point decided in the case was that where land, subject to a mort- gage, had been sold with a covenant against incumbrances, the mortgage foreclosed, and the property bought by the tenant of the vendee, these circumstances amounted to a legal eviction. See infra, p. 269 et seq. 5 Foster V. Pierson, 4 Term, 617. 244 THE COVENANT OF WARRANTY. eviction, would be to deny the benefit of the covenant to one whose dispossession has been caused by the exercise of a right of entry on the part of the holder of the paramount title ; which brings us to the second class of cases under the head of actual dispossession. Entry is a common-law remedy, which the holder of the paramount title had a right to exercise in three of the five species of ouster, viz., abatement, intrusion, and disseizin ; but it was not allowed upon a discontinuance or deforcement, where the original entry being lawful and an apparent right of possession thereby gained, that right was not allowed to be defeated by the mere act or entry of the claimant.-' Where such a right exists,^ it would seem absurd to hold that its exercise was no eviction, merely because the holder of the better title had not first invoked the aid of a Court to do that which the law allowed him to do without putting any of its more complicated machinery in op'eration. The entry under these circumstances would clearly have all the force and effect of a writ of possession,^ and this seems so clear, that, had it not been for the cases referred to under the preceding head, no distinction would have been taken between them.* 1 3 Black. Com. 175. And even Hampshire, after publication of the in the three cases named, the right notice of entry. N. Hamp. Kev. St. of entry (which was never assignable 1842, c. 131. at law, Co. Litt. 314 a,) might be 3 Gore v. Brazier, 3 Mass. 540 ; tolled or taken away by descent cast. Sprague v. Baker, 17 Id. 590 ; Smith Litt. § 385, 413. This has been al- v. Shepard, 15 Pickering, (Mass.) tered by statute 3 and 4 Will. IV. c. 147 ; Rickert v. Snyder, 9 Wendell, 27, § 39. (N. Y.) 422. 2 In Massachusetts, as also in Maine 4 The authorities under the head and Rhode Island, a mortgagee has of actual dispossession appear to be given him, by statute, a right of en- based upon the authority of some old try, in presence of two witnesses, cases which seemed to require the Smith u. Shepard, 15 Pickering, 147; doing of some positive act, as in Mass. Rev. St. 1836, u. 107; Maine Fraunces' case, 8 Rep. 91; Com. Kep. Rev. St. 1840, c. 125; R. Island 228. It seems always necessary that if Rev. St. 1844, p. 197. So in New the eviction be actual, it be complete ; THE COVENANT OF WARRANTY. 24<5 Thirdly. The cases which decide that the dispossession may be voluntary on the part of the covenantee, who may surrender or abandon it to the holder of the paramount title, might, at first, seem to be more properly classed under the head of constructive eviction, since it may be said that the term eviction forbids the idea of voluntary dispos- session. It is difficult, however, to determine precisely in every case how far a yielding up of possession to an irre- sistible title (or as it is sometimes termed an ouster in pais) is voluntary, or the result of necessity, and as some of the cases in this class seem to insist upon the actual yielding up of possession — the change of possession — they are dis- for in Hunt v. Cope, Cowper, 242, where a 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 deprived of the use thereof," Lord Mansfield said, " the plea states mere- ly a trespass, and no eviction." So in Reynolds v. Buckle, Hobart, 326 a, " a plea that the plaintiff did enter upon him, but did not say that he did expel him or hold him out," was said to be insufficient as a plea in bar. As to what acts of annoyance will amount to an eviction, see the case of Pendleton v. Dyott, 4 Cowen, (N. Y.) 581, overruled by the Court of Errors in Dyott v. Pendleton, 8 Id. 727 ; and see Palmer v. Wetmore, 2 Sandf S. C. R. (N. Y.) 316. In the recent case of Upton v. Townend, 1 7 Com. Bench, 64, Jarvis, Ch. J., said, " It is extremely difficult at the pres- ent day to define with technical accu- racy what is an eviction. Latterly the word has been used to denote that which formerly it was not intended to express. In the language of plead- 21 * ing, the party evicted was said to be expelled, amoved, and put out. The word eviction — from evincere to evict, to dispossess by ajudicial course, was formerly used to denote an ex- pulsion by the assertion of a title paramount, and by process of law. But that sort of eviction is not neces- sary to constitute a suspension of the rent, because it is now well settled that if the tenant loses the benefit of the enjoyment of any portion of the demised premises, by the act of the landlord, the rent is thereby sus- pended. The term " eviction " is now popularly applied to every class of expulsion or amotion. Getting rid thus of the old notion of eviction, I think it may now be taken to mean this — not a mere trespass and noth- ing more, but something of a grave and permanent character done by the landlord with an intention of de- priving the tenant of the enjoyment of the demised premises. If that may in law amount to an eviction, the jury would very naturally cut the knot by finding whether or not the act done by the landlord is of 24<6 THE COVENANT OF WARRANTY. tinguishable from those where there is no such actual change. Hamilton v. Cutts ^ is generally cited as the leading case on this side of the Atlantic as to voluntary dispossession, or ouster in pais, where it was said : " It was contended that here there was no legal evidence of an ouster, because the dispossession took place with the consent of the tenant in possession. It is true, that if the tenant consents to an unlawful ouster, he cannot afterwards be entitled to a remedy for such ouster. But an ouster may be lawful, and in that case the tenant may yield to a dispossession without losing his remedy on the covenant of warranty. . . There is no necessity for him to involve himself in a lawsuit to defend himself against a title which he is satisfied must ultimately prevail." ^ " The defendant had an undoubted right," it was said in a recent case, " upon being satisfied of the invalidity of his title, to abandon the possession of the premises and thereby to avoid the necessity of litigation, and its attendant per- plexities and expenses. He owed the plaintiff no duty to that character, and done with that the expense of an action against the intention.'' grantor to recover the possession." 1 4 Mass. 350, per Parsons, Ch. J. Again, in Kadcliff v. Ship, Hardin, 2 So in Clark v. McAnulty, 3 Serg. (Ken.) 292, it was said, " Had the & Kawle, (Pa.) 372, it was said by plaintiff refused to yield that just re- Gibson, J., " The law does not re- spect and due obedience to the Court quire the idle and expensive cere- which every good and well-disposed mony of being turned out by legal citizen ought to render, then it would process where that result would be have been necessary, in order to inevitable." And in Greenvault v. effectuate the justice of the case and Davis, 4 Hill, (N. T.) 646, it was said, to complete the right of the plaintiff " There is no reason why such sur- in ejectment, to have executed the render without the trouble and ex- writs of possession ; but surely there pense of a lawsuit should deprive can be no objection to his acquiescing him of a remedy upon the covenant, in and submitting to the judgment, The grantor is not injured by such thereby rendering compulsion unne- an amicable ouster — on the contrary, cessary, and preventing the further it is a benefit to him, for it thus saves accumulation of costs." THE COVENANT OF WARRANTY. 247 remain in possession and sustain the burden of the defence when the title was invahd. . . The right of the defend- ant was at any period to give up the possession to the right- ful owner upon claim made. He was under no obligation, either of duty or contract, to withhold it. He was not bound to seek redress through a litigation that might turn out to be fruitless with the party having the title," ^ and the law as thus stated has been recognized and applied in many cases. 1 Drew V. Towle, 10 Foster, (N. H.) 537, per Woods, Ch. J. 2 Woodward v. Allen, 3 Dana, (Ken.) 164 ; Hanson w. Buekner's Exr. 4 Id. 254 ; Slater v. Eawson, 1 Metcalf, (Mass.) 455 ; Loomis v. Bedel, UN. Hamp. 83 ; Sterling v. Peet, 14 Connect. 254 ; Patton v. McFarlane, 3 Penn. State R. 425; Poyntell v. Spencer, 6 Barr, (Pa.) 254 ; Steiner v. Baughmau, 2 Jones, (12 Penn. State K.) 106 ; Stone v. Hooker, 9 Cowen, (N. Y.) 157 ; Fowler v. Poling, 6 Barb. S. C. (N.T.) 168 ; Blydenburgh v. Cotheal, 1 Duer, (N. Y.) 196 ; Haffey's Heirs v. Birch- etts, 11 Leigh, (Va.) 88 ; McDowell V. Hunter, 4 Dudley, (Ga.) 4 ; Leary V. Durham, 4 Georgia, 606 ; Ferris v. Harshea, Mart. & Yerg. (Tenn.) 50, commenting on Radclifi'u. Ship, supra, p. 246. " An eviction by legal proc- ess," it was said in Fowler v. Poling, supra, " is not necessary, but the gran- tee may surrender possession to the rightful owner, and that will be a suffi- cient ouster to entitle him to his ac- tion in the covenant of warranty. It is true the Chancellor said in Hunt V. Amidon, 4 Hill, 345, in the Court of Errors, that the grantee had no right to give up voluntarily to a stranger claiming by title paramount, but his remark was obiter and he was evidently mistaken. In Hamilton v. Cutts, 4 Mass. 349, Stone v. Hooker, 9 Cowen, 154, and Green vault o. Davis, 4 Hill, 646, the opposite doc- trine was clearly laid down, with this restriction, that when the grantee surrenders or suffers the possession to pass from him without a legal con- test, he takes upon himself the bur- den of showing that the person who entered had a title paramount to that of his grantor." The expressions in Beebe v. Swartwout, 8 Gilman, (111.) 182, 183, which at first sight appear to conflict with this train of authority, refer entirely to the outstanding pos- sesion being one under a paramount title, in distinction to a mere adverse possession in its narrow and techni- cal signification. See infra, p. 259. Although in Mississippi there are expressions in the cases of Hoy v. Taliaferro, 8 Smedes & Marsh. 741, and Dennis v. Heath, 11 Id. 218, which seem to advocate a more rigid rule, yet the cases were not ac- tions on the covenant of warranty, but the breach of the covenant was attempted to be set up as a defence to the payment of the purchase- money, (see infra, Chapter XIH.) and the Court seemed unwilling to try the question of title in that action. In Hoy V. Taliaferro it was said, 248 THE COVENANT OF WARRANTY. But, in practice, the rule, as stated now generally to exist, must be adopted with care. The covenantee must, of course, first examine whether the adverse title be tortious or not ; for, if it be so, he will not in any event have a 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- cess, and if he choose to retire before it, it is at his own peril, and in the suit against his covenantor he must assume the burden of proof and make out the adverse title to which 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 en- tirely removed, according to the circumstances of the case. Where the adverse right of possession has been estab- lished by a judgment in any action of which the covenantor has been properly notified, the burden will be altogether " We have not been furnished with sel of the plaintiff go, is that an ac- any authority to show that a sale tual eviction under judgment of either by a marshal or a sheriff, is Court is not always necessary. An equivalent to an eviction. Manifestly ouster may be sufficient, but then it is not so, since the original vendor the burden of proof is upon the may stiU protect his vendee by pur- party who has yielded the possession ; chasing from the marshal's vendee. Hamilton v. Cutts, 4 Mass. 350 ; Stone Or it may happen that the title ac- v. Hooker, 9 Cowen, (N. Y.) 157. quired from the marshal would not But these cases do not establish, that be sufficient to effect an eviction, there can be a breach of the cove- The voluntary abandonment in this nant of warranty without an eviction, instance gives no strength whatever an ouster, or a surrender, or holdino- to the defence. A court of law, al- out under a paramount, outstanding though the proper tribunal for the title." trial of titles to land, will not try i See supra, p. 165. such titles collaterally.'' See these 8 Hamilton v. Cutts, 4 Mass. 350 • cases more particularly noticed, infra, George v. Putney, 4 Gushing, (Mass.") Chapter XIH. In the more recent 355 ; Stone v. Hooker, 9 Cowen, (N. case,however, of Witty y.Hightower, Y.) 157; Greenvault v. Davis, 4 12 Smedes & Marsh. 481, 482, Clay- Hill, (N. Y.) 643; Witty v. High- ton, J., remarked, "The utmost limit tower, 12 Smedes & Marsh. (Miss.) to which the cases cited by the coun- 481. THE COVENANT OF WARRANTY. 24>9 removed, and the judgment will be conclusive evidence of the paramount title.^ But where there is no such judg- ment, the burden of proof rests upon the covenantee, who will be compelled to make out the adverse title with as much particularity as if he were suing upon it in eject- ment. Moreover, it is believed that it is necessary that the par- amount title shall have been hostilely asserted. For although there is a class of cases to be presently considered,'* which recognize the right of the purchaser to buy in the para- mount title and in an action on the covenant recover the amount thus paid, yet it will be found that they refuse to sanction such a recovery unless there has been a prosecu- tion or distinct assertion of such title. When such has been the case, its purchase is considered as equivalent to an eviction, as the idle form of abandoning the premises under one title in order to re-enter under another is deemed unnecessary. But if, in the one case, it be con- sidered as indispensable that there shall have been a pre- vious assertion of the paramount title, it would seem that it would be equally indispensable in the other.^ The result of the authorities would, therefore, seem to be, 1 Miner v. Clark, 15 Wendell, 427 ; and such an ouster would have enti- Middleton v. Thompson, 1 Spears, tied him to his remedy on the cov- (S. Car.) 67 ; Wilson v. McElwee, enant of warranty, as was decided in 1 Strobhart, (S. Car.) 65. See su- Hamilton u. Cutts." SoinDupuyti. pra, p. 239. Roebuck, 7 Alabama, 488, it was said: 2 See infra, p. 269 et seq. " It was necessary that some particu- 3 Thus in Sprague v. Baker, 1 7 lar act should be shown by which the Mass. 590, it was said: "If the plain- plaintiif was interrupted, otherwise tiff had voluntarily discharged the the breach of covenant for quiet en- mortgage without any previous de- joyment would not be well assigned. mand made, his only remedy would If a demand was made, the plaintiff, have been on the covenant against it was said, might yield to the dis- incumbrances. But a demand hav- possession ; " while in Hagler v. Simp- ing been made, the plaintiff might son, 1 Busbee, (N. Car.) 386, where have yielded to the dispossession, the'Jplaiutiff gave up the possession 250 THE COVENANT OF WARRANTY. that wlifere the holder of the adverse title has the right sum- marily to obtain possession under it, and adversarily asserts of the premises soon after tteir re- covery from him in ejectment, this was held to be no eviction. " Non constat that he would have been dis- turbed in his possession had he re- mained upon the premises." In the recent case of Moore v. Vail, 1 7 Illi- nois, 190, the law was thus well stated by Eaton, J., who delivered the opinion. " The older authorities undoubtedly hold, that there could be no breach of a common warranty of title, or warranty for quiet enjoy- ment, until the covenantee had been actually evicted or turned out of the premises. The spirit of such a cov- enant, and the manifest justice of the matter, soon began to prevail over such an extremely literal interpre- tation of the intention of the parties. And it was held that, where, at the time of the execution of the cove- nantee, the premises were in the act- ual possession of another, who held them under a paramount or perfect title, then the covenant was broken as soon as it was made ; for the party should not be put to the useless ex- pense, delay and trouble to bring ejectment to get the possession, when it would certainly prove unavaiUng ; nor should he be required to com- mit an actual trespass upon the real owner in order to get possession, that he might himself be turned out of possession. But this is not the only case of constructive eviction which may now be considered as well settled by authority, and sus- tained by sound principles of moral- ity and justice. If the covenantee be in the actual possession of the estate, he has the right to yield that possession to one who claims it under a paramount title, without resisting him by force or by litigation ; and this is sustained by the same rea- sons of justice and good government which are applicable to the first ex- ception. This, however, is not to be understood - as holding that the mere existence of a paramount title constitutes a breach of the covenant, or that it will authorize the cov- enantee to refuse to take possession when it is quietly tendered to him, or when he can do so peaceably, and then claim that by reason of such paramount title and his want of pos- session the covenant is broken ; nor will it justify him in abandoning the possession without demand or claim by the one holding the real title. His possession under the title ac- quired with the covenant is not dis- turbed by the mere existence of that title ; and he has no right to assume that it ever will be, until he actually feels its pressure upon him. He must act in good faith towards his covenantor, and make the most of whatever title he has acquired, until resistance to the paramount title ceases to be a duty to himself or his covenantor. While he is not bound to contest, where the contest would be hopeless, or resist where resistance would be a wrong, yet always where he yields without a contest or resist- ance he must take upon himself the burden of showing that the title was paramount, and that he yielded the possession to the pressure of that title. Whenever he does yield qui- etly, he does so at his peril." THE COVENANT OF WARRANTY. 251 or prosecutes that right, the covenantee may anticipate its actual exercise, and voluntarily surrender the possession, by which ouster in pais a sufficient eviction will be caused to support an action on the covenant, in which, however, he will be obliged to prove that the results which he thus antici- pated were inevitable.^ The three foregoing classes of cases are comprehended under the head of actual eviction. II. Under the head of constructive eviction we will con- sider. First. Whether in case the covenantee has, by reason of the paramount title, never been able to obtain the posses- sion at all, such inability to obtain possession will be an eviction. In the old case of Holder v. Taylor,^ the plaintiff having brought covenant upon the warranty implied by the word demise in a lease, proved a prior lease to a stranger, and possession by him. Upon objection that the plaintiff showed no actual entry on his part and expulsion of the stranger, it was held that the word demise implied a power of leasing, which, if it did not exist, was broken as soon as made,^ and also that it was not reasonable to force the lessee to enter upon the land, and so commit a trespass ; " but," the Court added, " if it were an express covenant for quiet enjoying, then perhaps it were otherwise." This supposition is, however, met by the case of Cloake V. Hooper,* where the lands, having been previously con- veyed by the King, to whom they rightfully belonged, a demurrer by the defendant that the plaintiff did not allege 1 The statement in the text of the 2 Hobart's Eep. 12. result of the authorities was cited and 3 As to this, see infra, Chapter X. approved in the recent case of Funk ^ Freeman's Kep. 122. V. Cresswell, 5 Clarke, (Iowa,) 86. 252 THE COVENANT OF WARRANTY. an entry, and so could not be disturbed, was held bad ; the Court saying, " The declaration is good enough ; for having set forth a title in the patentee of the King, the plaintiff shall not be enforced to enter, and subject himself to an action by a tortious act." So, in a more recent case in the King's Bench, the plaintiff declared on a covenant for quiet enjoyment in a lease for years determinable on lives, alleg- ing that he was never in possession, that he had been refused attornment by the tenant, and subsequently defeated by him in an ejectment, on the ground of a prior lease granted by the defendant. The latter pleaded that for the first half year after the date of his lease the plaintiff might have entered and enjoyed, but that for non-payment of the rent for twenty-one days after that time, the defendant had a right of re-entry which he exercised, and upon demurrer the Court held that the defendant's covenant for quiet en- joyment meant a legal entry and enjoyment without the permission of any other person, which could not have taken place here on account of the prior lease granted and which was averred to be then subsisting, and judgment was accord- ingly given for the plaintiff.-' On this side of the Atlantic, however, there have been at one time dicta, and even decisions in favor of a narrower rule. Thus, in a case before the Supreme Court of the United States in 1825,^ it was said, that "the allegation that possession has never been obtained is immaterial, be- cause not a breach of the covenant, and a majority of the Court are disposed to think may be disregarded on a gen- 1 Ludwell V. Newman, 6 Term, to have thought that a refusal to give 458. In the case of Hawkes v. Or- possession might, if properly averred, ton, 5 Adolph. & Ellis, 367, judg- be a breach of the covenant for quiet ment was rendered for the defend- enjoyment. ant by reason of there being no ^ p^y v. Chism, 10 Wheaton, 452, evidence of the breach as stated in per Marshall, Ch. J. the declaration. But the Court seem THE COVENANT OF WARRANTY. 258 eral demurrer ; " and such was the actual decision in New York in the case of Kortz v. Carpenter,' where the hreach of the covenant being that at the date of the deed to the plaintiff and long before, the premises were adversely, by lawful title and right, held, possessed and enjoyed by the proprietors of the Hardenbergh patent, this was held bad, on general demurrer, as not showing an eviction. So, in a subsequent case in the same State,^ it was said that if the covenantee never had had the possession, however hard the case might be, no action would lie on the covenant for quiet enjoyment — that the grantee should have protected himself by other covenants. But such a view of the law, which seems to have been supported by no other authority than the dictum already re- ferred to in the case of Holder v. Taylor,^ has failed to re- ceive judicial sanction in the other States of the Union, and the reasons upon which these decisions are based have been nowhere stated more forcibly than in a case in North Caro- lina,* where Ruffin, J., in delivering the opinion of the Court, said, " The existence of an incumbrance or the mere recovery in a possessory action under which the bargainee has not been actually disturbed, are held, for technical rea- sons, not to be breaches of a covenant for quiet possession, or in other words of our warranties. But that is a very different case from this, in which the bargainee never in fact was in possession, but was kept out by the possession of another, under better title existing at the time of sale and deed, and ever since. The case of Kortz v. Carpenter is of the same character. But it is distinguishable from the present, for there had been no attempt in that case to get 1 5 Jolins. 120. 3 Supra, p. 251. 2 St. John V. Palmer, 5 Hill, (N. * Grist v. Hodges, 3 Devereux, r.) 601. (N. Car.) 200. 22 254 THE COVENANT OF WARRANTY. possession. Here there was by ejectment.' I do not how- ever think that was necessary, but the existence of a better title, with an actual possession under it in another, is of it- self a breach of the covenant. It is manifestly just that it should be so considered ; for otherwise the covenantee would have no redress but by making himself a trespasser by an actual entry, which the law requires of nobody, or by bring- ing an unnecessary suit ; for the event of that suit proves nothing in the action on the covenant. But upon purely legal grounds it is so. For as between the bargainor and bargainee, the latter is in by force of the statute of uses. It is upon that idea that the legal estate is acquired by a deed of bargain and sale. It passes the use, and the stat- ute carries the possession. It is so in the conveyance by lease and release. There must be a possession for the lat- ter to operate on. But it is not an actual possession — at least, the actual entry need not be proved. The statute transfers the possession, and the lessor cannot say it was not actual, for the purpose of defeating his subsequent re- lease. As between the parties, then, the bargainee is, on . strict principles, in ; but if there be in reality an adverse possession, he can only be held to be in for an instant ; for there will be no implication against the truth further than is necessary to make the deed efiectual for its purposes. If such adverse possession be upon title paramount, then there is an eviction of the bargainee eo instanti that the posses- sion conferred by the statute takes place, or the eviction need not be by process." The general principle thus ably explained has been recognized and applied in many other cases,^ and an analogy may be found in the old common J- The breach assigned in the case an ejectment against him and failed was an eviction by one Wingfield and therein by reason of Wingfield's par- the evidence was that Wingfield was amount title. in actual possession of the property, a Duval v. Craig, 2 Wheaton, 62; and that the covenantee had brought Curtis v. Deering, 12 Maine, 501- THE COVENANT OF WARRANTY. 0,55 law, which, although strictly requiring livery of seizin to accompany every feofiment, allowed the feoffee, where he dare not enter through fear of his life or of bodily harm, to make a yearly continual claim, as near the land as possi- ble, which would be " a good entry in law." ^ The rule, therefore, as best supported by reason and au- thority, would seem to be this — where, at the time of the conveyance, the grantee finds the premises in possession of one claiming under a paramount title, the covenant for quiet enjoyment or of warranty will be held to be broken, with- out any other act on the part of either the grantee or the claimant ; for the latter can do no more towards the asser- tion of his title, and, as to the former, the law will compel no one to commit a trespass, in order to establish a lawful right in another action. It remains to inquire how far such a rule would apply to cases where, as is often the case in this country, the land is without actual occupation or possession by any one. With respect to wild and uncultivated lands it has long been settled on this side of the Atlantic, that the owner is to be deemed in possession so as to enable him to bring trespass against a wrong-doer, on the ground that the legal seizin draws with it the possession, unless there is at the time an actual adverse possession.^ When such land is, Phelps V. Sawyer, 1 Aikens, (Verm.) gomery, 6 Monroe, (Ken.) 628. In 158 ; Park v. Bates, 12 Vermont, 287 ; the recent case of Moore v. Vail, 17 University of Vermont v. Joslyn, 21 Illinois, the Court said, " We admit Id. 52 ; Loomis v. Bedel, 11 N. the principle of law claimed, that if Hamp. 74 ; Miller v. Halsey, 2 Green, at the time this conveyance was exe- (N. J.) 59 ; Kandolph v. Meeks, cuted, the premises were actually in Mart. & Yerg. (Tenn.) 58 ; Cald- possession of a third party claiming well V. Kirkpatrick, 6 Alabama, 60 ; under a paramount title, that of Banks v. Whitehead, 7 Id. 83 ; Den- itself amounted to an eviction eo nis II. Heath, 11 Smedes & Marsh, instanti. Kawle on Covenants for (Miss.) 206 ; Witty v. Hightower, 12 Title." See this case infra, p. 259. Id. 473; Cummins v. Kennedy, 3 l Co. Litt. 253, n. Littell, (Ken.) 1 23 ; Barnett v. Mont- 2 Proprietors of Kennebeok v. Call, 256 THE COVENANT OF WARRANTY. through the medium of the statute of uses, conveyed with a covenant of warranty, there is, in the absence of a better title, a constructive possession given to the grantee, and this, where the land is thus wholly unoccupied, seems to be con- sidered as equivalent to an actual entry and possession by the latter. Hence it was held in New York that when a mort- gagee of wholly unoccupied land foreclosed his mortgage and obtained a decree that he shovdd be let into the posses- sion, this was an eviction amounting to a breach of the covenant.-' " In the cases which have been cited," ^ said the I Mass. 484 ; Van Brunt v. Schenck, II Johns. 385; Mather v. Trinity Church, 3 Serg. & Rawle, (Pa.) 514 ; Bush V. Bradley, 4 Day, (Conn.) 306. When the cases say that this rule ap- plies only when there is no adverse possession, this is principally intended to preserve the eiTects of the statutes of limitation, as those statutes would be totally useless in case an actual, visible and notorious possession for the prescribed length of time could be defeated by the constructive pos- session given to the true owner. As between parties claiming by title, the possession would of course follow the better title. The principle of adverse possession was thus stated by Story, J., in Clarke's Lessee v. Courtney, 5 Peters, 354 : " If a mere trespasser, without any claim or pretence of ti- tle, enters into land, and holds the same adversely by the title of the true owner, it is an ouster or disseiz- in of the latter. But in such case the possession of the trespasser is bounded by his occupancy ; and con- sequently the true owner is not dis- seized except as to the portion so oc- cupied. But where a person enters into land under a deed or title, his possession is so construed to be co- extensive with his deed or title, and although the deed or title may turn out to be defective or void, yet the true owner will be deemed disseized to the extent of the boundaries of such deed or title. This, however, is subject to some qualification. For if the true owner be at the same time in possession of a part of the land, claiming title to the whole, then his seizin extends by construction of law to all the land which is not in the actual possession or occupancy, by enclosure or otherwise, of the party so claiming under a defective deed or title. The reason is plain ; both parties cannot be seized at the same time of the same land under different titles, and the law therefore adjudges the seizin of all which is not in the actual occupancy of the ad- verse party, to him who has the bet- ter title." In Mr. Wallace's note to Taylor v. Horde, 2 Smith's Leading Cases, "469, 5th Amer. ed.,the student will find the numerous cases upon this subject classified. 1 St. John ('. Palmer, 5 Hill, (N. Y.) 599. ^ AValdron v. McCarty, 3 Johns. THE COVENANT OF WARRANTY. 257 Court, " the covenantee either remained in possession with- out any actual ouster before suit brought, or else he never had any possession, either actual or constructive. In the case before us, as the premises were wholly unoccupied, the legal seizin followed the title. The plaintiffs had the con- structive possession the moment they received the deed, and could have maintained trespass against any one who should enter on the land without title. They were in such a con- dition that an ouster or disseizin might follow. Now have the plaintiffs been evicted ^ When the mortgagee acquired a paramount title under the mortgage, the legal seizin — the premises still being unoccupied — immediately passed from the plaintiffs to him. He then had the constructive possession, and could maintain trespass against the plaintiffs, as well as any one else who should enter on the land. This would not be enough without showing that the mort- gagee had asserted his title to the land. The mere fact of a superior title in a third person can never amount to a breach of the covenant for quiet enjoyment. The posses- sion of the covenantee must be disturbed — he must be evicted — by the person having the better title. It is not necessary, however, that he should be evicted by legal proc- ess ; it is enough that he has yielded the possession to the rightful owner, or that such owner has entered — the prem- ises being vacant — and taken possession.-' The mortga- gee has asserted his right. He filed a bill in chancery for the purpose of perfecting his title under the mortgage, and made the defendants as well as the plaintiffs, parties to the suit. And he not only acquired a perfect paper title by the foreclosure and the sale, but there was a decree against all the parties to the present action that he should be let into 471 ; Kortz v. Carpenter, 5 Id. 120; l Citing Green vault v. Davis, 4 Kerr v. Shaw, 13 Id. 236 ; Webb v. Hill, (N. Y.) 643. Alexander, 7 Wendell, 281. 22* 258 THE COVENANT OF WARRANTY. the possession of the property, and that possession should be dehvered to him. All parties have acquiesced in the decree. As there was no actual possession in the plaintiffs or any one else, no formal act was necessary for the purpose of giving the mortgagee the complete enjoyment of his legal rights. It would have been an idle ceremony to issue a writ of assistance or any other execution on the decree. The decree was executed the moment the mortgagee re- ceived the Master's deed. And thus the constructive pos- session, or legal seizin, which was in the plaintiffs, was, by the acts of the parties and the operation of law transferred to the mortgagee. He has since exercised acts of ownership over the property and no one has questioned his right to do so. I think there has been such an eviction of the plain- tiff's as amounts to a breach of the covenant." -^ So in a recent case in Illinois it was said, " In this coun- try where so much of the land which is the subject of sale and transfer is actually wild and unoccupied, rules on the subject of eviction as well as of possession must be deter- mined in reference to such a state of things. Although in this case it does not appear that the covenantee was ever in the actual possession of the premises, yet he certainly 1 " Although this is,'' the Court 236, a, person having the paramount went on to say, " in several particu- title had recovered ejectment against lars like the case of Waldron v. Mo- the covenantee ; but as no execution Carty, 3 Johns. 471, there is still a had been issued on the jxidgment and plain distinction between the two the possession had not been changed, cases. There the averment was that it was held that there was no evic- the plaintiflF was obliged to purchase tion. There again, the covenantee the premises under the decree of was in the actual possession of the foreclosure ' in order to prevent his land and continued to hold it when being deprived and ousted of the the action was brought on the cove- same ; ' and on demurrer it was held nant. But here, as there was no ac- that this did not amount to a breach tual possession in the plaintiffs or any of the covenant. But the plaintiff one else, no execution or other for- was in actual possession of the land, mal proceeding was necessary for the and the possession never had been purpose of giving full effect to the changed. In Kerr u. Shaw, 1 3 Johns, decree." THE COVENANT OF WARRANTY. 259 once held the legal title ; and the lands bebg then actually vacant, such legal title drew after it the constructive posses- sion. Before dismissing the class of cases upon the subject of an eviction being caused by the grantee's inability to obtain the possession, it should be observed that such possession must be 'Moore !/. Vail, 17 Illinois, 185. In this case the question arose with respect to the statute of limitations. In an action on the covenant of war- ranty it was proved that at the time of the sale to the plaintiff the prem- ises were in the actual possession of one Lynch, who however did not claim to he in possession under color of title, and who soon after left them vacant, in which state they continued for sev- eral years, when Mrs. Lynch who then held the paramount title took possession. " The defence now in- sisted upon," said the Court, " is the statute of limitations. It is not de- nied that the title has failed, and that there has been in contemplation of law an eviction so as to give the right of action on the covenants ; but it is insisted that the title failed and that a technical eviction accrued on the first day of September, 1836, the moment the deed was executed which was more than sixteen years before this action was brought. We admit the principle of law as claimed, that if, at the time this conveyance was executed, the premises were actually in the possession of a third party claiming under a paramount title, that of itself amounted to a convic- tion, eo instanti. Rawle on Cove- nants for Title. Prom the facts al- ready stated, does it appear that on the first of September, 1836, Lynch held possession of the premises under an adverse paramount title ? The presumption is that he held in subor- dination to the title which he had conveyed to Collins, and there can be no doubt that he might have been dispossessed, under the deed of con- veyance on which this suit is brought by an action of ejectment. The con- tinued possession of Lynch not being under paramount title nor even ad- verse to the plaintifl''s title did not constitute an eviction so as to give the plaintiff a cause of action on his covenant of warranty. The plain- tiff's constructive possession contin- ued until it was actually interfered with by the owner of the paramount title. Until that time he might peace- ably have entered upon and enjoyed the premises without resistance or molestation which was all his grant- ors covenanted he should do. They did not guarantee to him a perfect title, but the possession and enjoy- ment of the premises. There was no interference with this till Mrs. Lynch entered and took possession of the property in 1842. This entry being by paramount title, although peacea^ ble and without opposition from the covenantee, was at least a construc- tive ouster and a breach of the cove- nant. Then for the first time an ac- tion accrued upon this covenant, and not till then did the statute of limi- tations begin to run." £60 THE COVENANT OF WARRANTY. under a title actually paramount, and not an adverse posses- sion such as would ripen by lapse of time under the limita- tion acts, into a perfect title. Such a possession might, according to some authorities, cause a breach of the cov- enant for seizin,^ but there appear to be none which decide that it vs^ould cause a breach of the covenant of warranty or for quiet enjoyment. On the contrary, in an early case in Vermont,^ and very recently in Illinois, it has been held that such a possession was no breach of these covenants.^ Secondly. In approaching the next two classes of cases upon the subject of constructive eviction, more difficulty is experienced than in those which have been considered. The first of them involves the question whether, after the estab- lishment of the adverse title by a judgment or decree, an eviction will be caused by the covenantee having purchased or taken a lease under such title, without any actual change of possession. In support of the affirmative of this question, it may be said, that it cannot be doubted that by an eviction under a paramount title, the relations between the covenantor and the covenantee, growing out of the title which passed from the one to the other, are dissolved, and hence after such an eviction (whether caused by legal process, by entry or by a voluntary retirement is immaterial, as the reason applies equally to all), there is nothing in the law to prevent the formation of a new relation between the dispossessed cov- 1 Supra, p. 20 et seq. possession and occupation, and pay- 2 Phelps V. Sawyer, 1 Aikens, 157. ment of taxes by several persons, but 3 Beebe v. Swartwout, 3 Gilman, there is no legal evidence of their 183, where the subject was elabo- title. . . . The fact of possession, rately examined both by counsel and as proved by the witnesses, stands the Court ; Moore v. Vail, 1 7 Illinois, disconnected from any title, and 185,siyj?-a, p. 259. In Jenkins u. Hop- therefore we cannot know that it kins, 8 Pickering, 350, the law was was not unlawful, and if it was so, incidentally considered as so settled : it is no breach of the covenant of " The depositions show an actual warranty." THE COVENANT OF WARRANTY. 261 enantee and the holder of the better title. In an action on the covenant of warranty, a plea that a year after the evic- tion of the covenantee he had taken a conveyance under the better title by virtue of which he had regained the posses- sion, would clearly be held bad on demurrer. This would have been a subsequent and new contract, growing out of a different set of relations, which could not afiect the rights which had been previously acquired under the covenant. Hence, there would seem to be no reason why any interval of time should elapse between the cessation of the old rela- tions and the formation of the new ones, and if the cov- enantee can be ousted of possession under one title in the forenoon, and regain possession under the other in the after- noon of the same day, or at any less interval of time, it would seem idle to hold a mere ceremony absolutely neces- sary for the purpose of giving a party substantial rights under his covenant.^ As for the allegation that a door might be opened to fraud, it may be answered that the question of fraud or collusion will always he open for the benefit of the covenantor, and he may have greater difficulty in establishing it in proportion as the transaction is cloaked with technical formalities. On the other hand,, it has been urged that, in the first place, such a doctrine tends to sweep away all distinction between a covenant for seizin and a covenant of warranty. By degrees, an eviction, which has always been held essen- tial to a breach of the latter, is frittered away to a mere name. In the next place it holds out at least an encourage- ment to fraud, and the temptation to it will increase in pro- portion as the requirements of the law are relaxed. It has also been argued that the case is analogous to that between landlord and tenant, with reference to the rule that a tenant 1 SeePoyntell v. Spencer, 6 Barr, (Pa.) 257. 262 THE COVENANT OF WARRANTY. is prohibited from disputing his landlord's title unless there has been an actual eviction under a paramount claim. If, indeed, there be such an analogy as is lastly suggested, it might perhaps be difficult to deny the superior weight of the argument of the latter side of the question. The point, therefore, assumes an importance which may justify a di- gression which would not otherwise be made. Some difierence of opinion appears to exist with respect to the source of this rule, and it seems to have been often, if not generally, supposed to have been feudal in its origin, forming part of the doctrine of disclaimer. It appears, however, that none of the older cases mention the rule. Littleton, in commencing the subject of " Tenant for term of years," says, " And where the lessee entereth by force of the lease, then he is tenant for term of years, and if the lessor reserve to him a yearly rent upon such a lease, he may choose for to distrain for the rent. . . . But in such case it behooveth that the lessor be seized in the same tene- ments at the time of his lease ; for it is a good plea for the lessee to say that the lessor had nothing in the tenements at the time of the lease, except the lease be made by deed in- dented, in which case such plea lieth not for the lessee to plead." -^ And Coke, in referring to this section says, " The reason of this is, for that in every contract there 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."^ Hence it appears that unless where the lease were by indenture, (in which case the doctrine of 1 Littleton, § 58. And in Brooke's the lessor had nothing in the land at Abridgment, Estoppel, pi. 8, it is time of the demise ; contrary, if the said " Nota, in Littleton's Tenures, lease be by indenture, for that is an title, ' Tenant for Years,' if one lease estoppel, which note." by deed poll for years or by parol, 2 Cq. Litt. 47 b. he can avoid the lease by saying that THE COVENANT OF WARRANTY. 263 estoppel by deed applied,)^ the rule in question formed no part of the common law. V7e find then no trace of it until we come to the later reports. " It has been ruled often," said Dampier, J., in the year 1815,^ " that neither the ten- ant, nor any one claiming by him, can dispute the landlord's title. This I beheve to have been the rule for the last twenty-five years, and I remember was so laid down by Buller, J., upon the Western circuit." It was referred to by Lord Kenyon, in a case decided in 179^,^ but in connec- tion with a different principle ; * and Tilghman, Ch. J., has remarked, " The principle was certainly a departure from the strict rule of law." ^ This rule, then, having no foundation in the old common law, it has been well suggested that " its origin must be sought in the general principle that where a party has kept or obtained the possession of land which he otherwise would not have had, by means of an agreement or understanding, he shall be estopped from setting forth anything in oppo- sition to its terms or intent in a suit brought in order to recover such possession. The principle was, of necessity, called into being by that feature of the action of ejectment which requires an absolute possessory title in the plaintiff", and makes, in its absence, the mere fact of possession de- cisive in favor of the defendant."^ It never could be pre- tended that, in general, the acceptance by the grantee of a conveyance of an estate from the grantor precluded the former from denying the title of the latter, since, if such 1 Jordan v. Twells, Rep. temp, be raised by the question of title was Hardwicke, 161 ; Palmer v. Ekins, immaterial; Lewis v. Willis, 1 Wil- 2 Raymond, 1 551. son, 314 ; Cobb v. Arnold, 8 Metoalf, 2 Doe V. Smythe, 4 Maule & Selw. (Mass.) 398. 347. 5 Hamilton's Lessee v. Marsden, 6 3 Cooke V. Loxley, 5 Term, 5. Binney, 47. See also Vernam v. 4 It being beld there, as elsewhere, Smith, 1 Smith, (N. Y.) 329. that in an action of assumpsit for use 6 Note to Doe v. Oliver, 2 Smith's and occupation, the issue sought to Leading Cases, 4th Amer. ed. 264i THE COVENANT OF WARRANTY. were the rule, all the covenants for title would he at once useless, as the essence of a breach of these covenants is the existence of a title or a possession paramount to that of the grantor.-^ It will further cleaily appear from examining- the statute 11 Geo. II. c. 19, that it was deemed no more than just that, in cases of conflicting titles, a tenant should be pro- tected against his landlord by payments to the holder of the paramount title where such title appears by matter of rec- ord, and even in one case where it did not so appear. The 11th section of that statute, after reciting that the posses- sion of estates was rendered very precarious by reason of the fraudulent practices of tenants in attorning to strangers who claim title to the estate of their landlords, who by that means are kept out of possession and put to the difficulty and expense of recovering the possession by suit, declared that all such attornments should be void to all intents and purposes, with, however, this proviso : " Nothing herein contained shall extend to vacate or affect any attornment made pursuant to and in consequence of some judgment at law, or decree or order of a court of equity, or made with the privity and consent of the landlord or landlords, lessor or lessors, or to any mortgagee after the mortgage is be- come forfeited." The fairness of this proviso is sufficiently manifest, and the rule it contains has been observed both where such a statute is,^ and where it is not of binding authority, and it has been repeatedly held that a payment of 1 And even in cases arising un- Scott, 767 ; Doe u. Seaton, 2 Crompt. der tlie relation of landlord and Mees. & Rose. 728 ; Jackson v. Row- tenant, many limits have been set land, 6 Wendell, (N. Y.) 666; Ran- to the estoppel of the latter. One dolph v. Carlton, 8 Alabama, 606 • of the most familiar of these is, that Doe d. Howell v. Ashmore, 2 Zabris- he is permitted to show that, his les- kie, (N. J.) 265. sor's title is expired ; Walton v. 2 Lunsford v. Turner, 5 J. J. Waterhouse, 2 Wms. Saund. 418, Marshall, (Ken.) 104. note ; Hopcroft v. Keys, 2 Moore & THE COVENANT OF WARRANTY. 265 rent by the tenant to a mortgagee claiming under a mort- gage prior to the lease, and who has, at that time, a right of entry, is a sufficient defence in an action brought to recover this rent by the landlord.^ It must be observed, with respect to these cases, that in reality they seem to proceed upon the ground of construc- tive eviction.^ There is an entire cessation of tenure be- 1 Jones V. Clark, 20 Johns. 61 ; Magill V. Hinsdale, 6 Connect. 469 ; Smitli V. Shepard, 15 Pickering, (Mass.) 147 ; Stone v. Patterson, 19 Id. 476 ; Weld v. Adams, 1 Metcalf, (Mass.) 494 ; George v. Pntuey, 4 Gushing, (Mass.) 355 ; Greeno v. Munson, 9 Vermont, 37; Simers v. Saltus, 3 Denio, (N. Y.) 216 ; Cham- bers V. Pleak, 6 Dana, (Ken.) 428 ; Pope V. Biggs, 9 Barn. & Cress. 245. See Mayor of Poole v. Whitt, 15 Mees. & Welsby, 577 ; "VVaddilove v. Barnett, 2 Bingham's N. C. 538 ; Franklin u. Carter, 1 Com. Bench, 760 ; Graham v. Alsopp, 3 Exchequer, 198; note to Moss v. GalHmore, 2 Smith's Lead. Cases, 604, (5th Am. ed.) passim, 697. In Doe v. Barton, 1 1 Adolph. & Ellis, 314, Denman, Ch. J., said, " The tenant may be said to satisfy the rule when he admits that at the time when he was let into pos- session, the person who so let him in was mortgagor in possession, not treated as a trespasser, and so had title to confer on him, the tenant, the legal possession, and yet may go on to show that subsequently he has been treated as a trespasser, where- by his (the mortgagor's) title, and the tenant's rightful possession under him, have been determined. . . . It is conceded on all hands that where a lease is made by a mort- gagor subsequently to the mortgage, 23 and the mortgagee afterwards re- quires the rent to be paid to him, and it is paid accordingly, as here, the relation of landlord and tenant may arise between the parties. Or, at all events, the mortgagee may be entitled to sue the tenant for use and occupation. Therefore, under the circumstances of this case, it is plain that the mortgagee was entitled to the profits of the land, and the de- fendants were right in paying him those profits, whether strictly called rent or not. He might have ejected them, and afterwards let to them ; and it seems absurd to require him to go through the form of an eject- ment, in order to put them into the very position in which they now stand." 2 In Ross V. Dysart, 9 Casey, (33 Penn. State K.) 454, it was said: " Nor is it necessary for the tenant to be actually removed from the premises to give him a good defence against rent. Writs of habere facias possessionem are well executed when the tenant attorns to the plaintiif therein. And the taking of a lease or contract of purchase under pres- sure of such writ where there is no fraud or collusion, is an actual evic- tion in law, which dissolves the re- lation between the tenant and his original landlord." In 5 VVent- worth's Pleading, 63, will be found 266 THE COVENANT OF WARRANTY. tween the tenant and the original landlord,^ and there is a creation of an entirely new tenure between the former and the mortgagee. The mortgagee does not step into the shoes of the landlord, and under no circumstances can there be a continuation of his rights. When, therefore, it was said, in Pope v. Biggs,^ " the mortgagee, by giving notice to the tenant, of the mortgage, may thereby make him his tenant, and entitle himself to receive the rents ; " this, which was not necessary to the decision of the case, was properly, denied in subsequent cases. ^ It is evident, that the mortgagee has no legal power to compel the tenant to remain in possession. Clearly, if the tenant, upon re- ceiving the notice, retire from the premises, no action could be maintained against him by the niortgagee, for the rent accruing subsequently to the notice ; while, if the relation between the landlord and tenant pass, as such, to the mort- gagee, the tenant would, notwithstanding he quit the pos- session, be liable for the rent until the expiration of his term. All the effect, then, of a notice, and a continuing in possession is, as has been said,* to raise a presumption that the tenant consented to hold under his new landlord upon the old terms, and this is viewed in law as if there had been a declaration on a covenant for quiet less and indemnify the said plaintiff enjoyment in whicli the breach as- for the same. Yet the said plaintiff signed is for letting ground-rent go in fact says that the said defendant, in arrear, " by means of which he, not regarding, &c., did not, when he the said plaintiff, was called upon was so requested as aforesaid, save, and forced and obliged to pay, and defend, &c." ' did then and there pay the same, in l Fitzgerald v. Beebe, 2 English, order to prevent his goods and chat- (Ark.) 320; Gore v. Stevens, 1 tels then being on the said premises Dana, (Ken.) 203. from being distrained upon for the 2 9 Barn. & Cress. 245, per Bay- same, to wit : one A. B. to whom the ley. J. same then and there of right was 3 Evans v. Elliott, 9 Ad. & Ell. due and payable, wliereof .the said 342 ; Brown u. Storey, 1 Scott's N. defendant afterwards then and there Kep. 9; S. C. 1 Man. & Gran. 117. had notice, and was then and there * In Brown v. Storey, supra. required to save, defend, keep harm- THE COVENANT OF WARRANTY. 267 an actual eviction by the mortgagee, and a repossession given by him to the tenant. This is stated in plain terms by Chief Baron Pollock : ' "If a party, having a good right to eject the occupier of demised premises, goes there and demands to exercise that right, and the tenant says, ' I will change the title under which I now hold, and will con- sent to hold under you,' that, according to good sense, is' capable of being well pleaded as an expulsion."^ If a contrary doctrine to this prevailed, the situation of a tenant who originally derived his possession under a lease subsequent in date to a mortgage, would be hard in the extreme, since on the one hand the mortgagee might threaten him with an ejectment and hold him liable for mesne profits unless he consent to pay the rent to him, while, on the other, such payment would be no defence as against his original landlord when sued by him for the rent. It is true that the mortgagee cannot distrain for the rent, nor bring an action to recover it,^ there being no privity between the tenant and himself,* but he may obtain the same results indirectly by a threat of ejectment and an action for mesne profits. From these remarks it will be perceived that the rule 1 Mayor of Poole v. Whitt, 15 ■'It seems to have been on this Mees. & Welsby, 577. ground that in Souders v. Vansickel, 2 See accord. Clapp v. Coble, 1 8 Halsted, (N. J.) 313, the tenant Dev. & Battle, Ch. (N. Car.) 177; -was denied the defence of having Morse v. Goddard, 13 Metcalf, made payments to the mortgagee. (Mass.) 177; George v. Putney, 4 Evidence in support of this, though Gushing, (Mass.) 354 ; Ross v. Dy- inadmissible under a plea of nil sart, 9 Casey, (33 Penn. State K.) habuit, seems, however, proper as 454. To render the eviction a valid being equivalent to a constructive defence against the landlord's claim eviction. The student may profit- for rent, it must take place before ably refer, for a more ample consid- the rent falls due ; Giles v. Com- eration of the subject here casually stock, 4 Comstock, (N. Y.) 275. noticed, to Mr. Hare's note to Moss 3 McKircher v. Hawley, 16 John- v. Gallimore, and the Duchess of son, 289 ; Mayo v. Shattuck, 14 Pick- Kingston's case, in 2 Smith's Lead, ering, (Mass.) 525. Cas. (5th Am. ed.) 268 THE COVENANT OF WARRANTY. has by no means the universal application which has been attributed to it. It has been said, " As it is a rational rule, it will not be extended beyond the principle on which it is founded. Allegiance and protection are correlative and co- extensive. Whenever it is ascertained, by a competent judgment or decree, that the landlord's title is insufficient ■for the security of the tenant, the relation between them may be renounced, and the tenant may protect himself under the paramount title." ^ In the application of these remarks to the subject of eviction as connected with the covenants of warranty and for quiet enjoyment, it seems clear that the reasons in favor of a somewhat rigid adherence to the rule that a tenant shall not dispute his landlord's title, lose their force when applied to a conveyance purporting to pass the whole estate of the grantor and to leave no reversion in him. For the relation of landlord and tenant imposes upon both parties greater rights and obligations than that of vendor and pur- chaser.^ There seems no obligation of allegiance and loy- alty on the part of the latter towards the title he has received. The mischief to which, as between landlord and tenant, the absence of such a rule must lead, would evi- dently be that a tenant having obtained the possession from his landlord, could betray it to another, and thus drive the former to an ejectment to regain the possession, and thus no landlord would ever be safe from the prospect of litiga- tion. Hence the tenant's obligation to restore to him the possession.^ But as between vendor and purchaser, there 1 Lunsford v. Turner, 5 J. J. Mar- Gardner, 3 Barb. S. C. (N. Y.) 589 ; shall, (Ken.) 104. Averill v. Wilson, 4 Id. 180 ; Bige- 2 Blight's Lessee v. Koohester, 7 low v. Finch, 11 Id. 500; James v. Wheaton, 548 ; Walden v. Bodley, Patterson's Lessee, 1 Swan, (Tenn.) 14 Peters, 156 ; Watkins v. Hoi- 311 ; Winterbottom v. Ingham, 7 man, 16 Id. 54 ; Page v. Hill, 11 Mis- Queen's Bench, 611. souri, 149 ; Osterhout v. Shoemaker, 3 Or, as has been well expressed 3 Hill, (N. Y.) 518 ; Kenada v. in Mr. Hare's note to the Duchess of THE COVENANT OF WARRANTY. £69 can be no such danger. With the execution of the con- veyance, as a general rule, all the relations between the parties cease, except those arising from the purchaser's obligations with respect to the unpaid purchase-money and his rights upon the covenants which he has received. By the contract as intended to be fulfilled, the title and posses- sion have left the vendor, never to return to him. There appears, therefore, far less room for the application of the rule than as between landlord and tenant.' Hence it may be safely said that in those courts which hold that a constructive eviction is caused by a tenant being obliged, on pain of dispossession, to accept a lease under a paramount title, either based upon a mortgage or a judg- ment of a court of competent jurisdiction, it would, a fortiori, be held that a constructive eviction, amounting to a breach of the covenants of warranty or for quiet en- Kingston's case, " It is well known that a recovery cannot be had in ejectnaent without proof of title, and that it may be defeated by proving an outstanding title in a third pei-- son. The result of allowing a tenant to deny the right of the landlord, in an ejectment for the land, would therefore be to take the estate from the latter and confer it on the former whenever there was a defect either in the title itself or the proof brought forward to sustain it. This would obviously be equally inconsistent Tvith public policy and private faith, and would prevent men from letting their property even when they were unable to use it themselves ; when, therefore, possession is obtained under a lease, the lessee is estopped from keeping the land in violation of the agreement under which it was ac- quired." 2 Smith's Lead. Cas. (5th Am. ed.) 23* 1 Thus the rule would never be ajDplied to the case of one who had received a conveyance in fee contain- ing a reservation of a ground-rent to the grantor; Brown u. Dickerson, 2 Jones, (12 Penn. State E.) 372. The case of Naglee v. Ingersoll, 7 Barr, (Penn. State K.) 185, will, on exam- ination, be found not to contradict this. " The fourth plea," said Bell, J., " is either a nil habuit in tene- mentis, which in covenant is bad on demurrer, or it is tantamount to a plea of eviction. But neither of the latter pleas set out the name of the eviotor or allege that he entered upon the defendant's possession by virtue of a lawful title acquired before or at the time of the grant to the defendant. This averment is ab- solutely essential to the sufficiency of such plea." 270 THE COVENANT OF WARRANTY. joyment, would be caused by the purchase of such a title by whoever might be entitled to the benefit of the covenant ; and such would appear to be now the general course of decision. In the early case in New York, however, of Waldron v. McCarty,^ the plaintiff, in an action on the covenant of war- ranty, averred that at the execution of the deed to himself, the premises were incumbered with a mortgage, that they were afterwards sold under a decree of the Court of Chan- cery for the principal and interest due on the mortgage, and that he had been obliged to purchase them in order to prevent his being deprived and ousted of the same, to which the defendant demurred, and the demurrer was sustained, Spencer, J., who delivered the opinion, saying, " In good sense, the covenant for quiet enjoyment has reference merely to the undisturbed possession, and not to the grantor's title. In the present case, judging from the deed, it was never the intention of the grantor to covenant that the lands were free from incumbrance. From precedents, and as no au- thority has been shown that the covenant for quiet enjoy- ment is broken by any other acts than an entry and eviction or a disturbance of a possession itself, we are of opinion that the demurrer is well taken." It is, however, believed that this decision is no longer recognized as authority in New York, nor sustained by the weight of authority else- where. Thus, in the case of Sprague v. Baker,^ where one who having received land with covenants for quiet enjoyment and of warranty, paid the amount of a mortgage upon being threatened by the mortgagee to sue for possession of the premises under it, it was held that there was " nothing to distinguish this case from that of Hamilton v. Cutts,^ but a 1 3 Johnson, 471. 2 17 Mass. 590. 3 4 Mass. 350 ; Supra, p. 246. THE COVENANT OF WARRANTY. Q'^l point of form, which does not affect the merits of the ques- tion. The plaintiff has heen disturbed in the enjoyment of his possession, and he has been compelled to purchase in another title for his own security, which we think very clearly has been a lawful interruption and a breach of the covenant of quiet enjoyment." The existence of a mort- gage seems placed upon the same footing as a paramount title established by a judgment of a court of record, as appears both by the statute of Geo. 11.^ and in the cases generally, on the ground that a mortgagee (except in New York, since the revised statutes,) has always a right of pos- session,^ and where a paramount title has been established by a court of competent jurisdiction, it has been repeat- edly held, in accordance with this decision, that there is no objection to a purchase or lease of such title being made by the covenantee, and that the idle ceremony of actually and formally leaving the possession, in order formally to return to it under the new title is unnecessary. Thus in a recent case in Pennsylvania, a mortgagor con- veyed the premises bound by the mortgage, reserving to himself a ground-rent, and covenanting that the purchaser should at all times thereafter freely, peaceably and quietly have, hold and enjoy the premises, without any molestation, interruption or eviction of the grantor or his heirs or any one claiming under him or them, or by or with his or their acts, means, consent or procurement. The purchaser sold to the plaintiSs, who, upon the premises being advertised at sheriff's sale under proceedings on the mortgage, purchased them and took a deed therefor,^ and this was held a suffi- cient eviction to entitle the plaintiffs to recover.'* 1 Supra, p. 264. ■with those presented in Waldron v. 2 Notes to Keeoh v. Hall, 1 Smith's McCarty, supra. Lead. Cas. (5th Am. ed.) * Brown v. Dickerson, 2 Jones, 3 It will be observed that the facts (12 Penn. State B.) 372. "It is in this Ccise were almost identical true," said Burnside, J., who deliv- 272 THE COVENANT OF WARRANTY. So, in a late case in Massachusetts where the facts were almost similar, the Court said, " The premises were offered ered the opinion of tlie Court, " that the covenant for quiet enjoyment goes more particularly to the posses- sion than to the title. Hence to have a breach of it, ordinarily, it is necessary to give evidence of an entry upon the grantee, or of expul- sion from the premises, or some ac- tual disturbance of the possession (2 Sugden on Vendors, 10th ed. 514- 522), by reason of some adverse right existing at the making of the covenant, not of one subsequently acquired. Ellis v. Welch, 6 Mass. 246. Proof of the demand of pos- session on a superior right, will not be deemed sufficient on which to found the action ; to maintain it, the plaintiff must exhibit an assertion and proceeding on that title, an ous- ter or disturbance by means of it ; but a technical ouster on a judgment at law, is not absolutely necessary ; 2 Greenleaf 's Ev. § 243. Here, one of the plaintiffs was out of possession ; and the other, in order to retain the possession, was forced to purchase at the sheriff's sale, and that to prevent such an ouster as would have kept him out forever. The rule as set- tled in Waldron v. McCarty, 3 Johns. 464, has not met the approbation of the profession, in many States of this Union. It is too technical, and puts a grantee to unnecessary expense and trouble, and has been properly overruled in many of the Courts. We particularly refer to the learned and able opinion of Parker, Chief Justice of the Supreme Court of New Hampshire, in Loomis v. Bedel, H N. Hamp. 74, (see this case more particularly noticed, infra,') where it is held that where there is a convey- ance with a covenant of warranty, and there is in fact a superior title, which is asserted by offering the premises for sale at public auction, and the grantee under the subse- quent conveyance yields to the supe- rior title and purchases it, this as- sertion of title and purchase is a sufficient ouster or disturbance to sustain an action on the covenant of warranty, notwithstanding ?here was no actual dispossession. It is further ruled that if one of several grantees under the subsequent conveyance, make the purchase and remain in possession, all may have their action on the covenant. These principles are directly in point, and if respected, rule this case. The weight of modern authority is in accordance with them. King u. Kerr, 5 Ohio, 158, decides that if the vendor, in possession (after a judgment in ejectment against him), buys in the claimant's title, that is equivalent to an execution, and an actual ouster is not necessary. See, also, Foote v. Burnett, 10 Ohio, 330. The same good sense is found in New Jersey ; Stewart v. Drake, 4 Halsted, 139, 140. A mortgaged premises to B, and then sold them to C, with a covenant of quiet en- joyment; the premises were after- wards sold under B's mortgage to D, who was C's son-in-law and ten- ant in possession ; D sold and gave possession to C; held, an eviction, and in the opinion of the Court there was an eviction when the premises were bought in by D. They have substantially adopted the same principle in Alabama; Dav- THE COVENANT OF WARRANTY. 27s for sale at public auction, and if the plaintiff had not become a purchaser, he had a right to presume that he should be dispossessed by the purchaser, and he was justified in act- ing upon that presumption, and the defendant could not be thereby injured, for undoubtedly if the plaintiff had not become a purchaser he would have been evicted if he had refused to yield possession, and in such case the defendant would be responsible for the costs of suit in the action against the plaintiflt" as well as for the value of the land, if duly notified of the pendency of the action." ^ The same principle has been recognized and applied in many other States, and is supported by the weight both of reason and authority.^ enport v. Bartlett, 9 Alabama, 179. We therefore think the weight of authority is with the plaintiff, and the nonsuit ought to be taken off." 1 Whitney v. Dinsmore, 6 Gush- ing, (Mass.) 124. The early New York cases of Waldron v. McCarty, Kortz V. Carpenter, &o. were relied on by the defendant, but the Court said, " However this may be, we con- sider the law well settled in this Com- monwealth, and we see no reason for adopting the doctrine laid down in the cases cited from the New York reports. The question is whether, in all cases, a party must wait until he is actually evicted or ousted, before he can have the benefit of the cove- nant of warranty. We hold that there may be other acts of the party having a paramount title, which may be equivalent to an eviction. In the case of Duvall v. Craig, 2 Wheaton, 45, it was held, that if a grantee is una- ble to obtain possession, in conse- quence of an existing possession or seizin by a person claiming or hold- ing under an elder title, it is equiva- lent to an eviction. And so we think if the grantee is in possession, and a claim is made on him by a party hav- ing a title, against which he is unable to defend himself, he may yield to a dispossession or purchase in the para- mount title ; and the present case, we are of opinion, depends on a sim- ilar principle." 2 White V. Whitney, 3 Metoalf, (Mass.) 81 ; Bevis v. Smith, 10 Id. 194 ; Eastabrook v. Smith, 6 Gray, (Mass.) 572; Donnell v. Thompson, 1 Fair- field, (Me.) 170; Kelly v. Low, 18 Maine, 244 ; Cole v. Lee, 30 Id. 392, see this case noticed, infra; Stewart v. Drake, 4 Halsted, (N. J.) 139 ; Haf- fey's Heirs v. Birchetts, 11 Leigh, (Va.) 88 ; Dupuy v. Roebuck, 7 Ala- bama, 488, (see this case noticed more particularly, infra) ; Tuite v. Miller, (Ohio,) 5 West. Law Journal, 413 ; (and see King v. Kerr, 5 Ohio, 154, whose decision, it was said in John- son V. Nj'ce's Exr., 17 Ohio, 69, in- fra, was controlled by the local " occupying claimant law.") In Leary 2!74< THE COVENANT OF WARRANTY. There are, it is true, some decisions which, at first sight, do not appear to be in accordance with this proposition, V. Durham, 4 Georgia, 593, after land had been conveyed with a general covenant of warranty, the widow of a former owner made application, under the local statutes, for an ad- measurement and assignment of dower, upon which commissioners were regularly appointed, and their return was made the judgment of the Court, which directed a writ of possession to be issued upon applica- tion of the demandant. The plain- tiff (the assignee of the covenantee) rested his case here, with proof that the injury to the land was four or five hundred dollars, and that his covenantor had notice of the pen- dency of these proceedings. On the trial the Court ordered a nonsuit, on the ground (among others) that there had been no eviction. But the judg- ment was reversed by the Supreme Court, and Lumpkin, J., in deliver- ing the opinion of the Court, after referring to the local provisions as to assignment of dower, held the follow- ing language : " All of this has been done in the present case, except that the record furnishes no evidence that a writ of possession has ever issued. The legal presumption is that none was needed, and that the tenant sur- rendered voluntarily. The witnesses testify that Leary, the plaintifiF, has been injured some four or five hun- dred dollars. We think thai the case should have been submitted to the jury. After the judgment of confir- mation by the Court, not only the actual, but the market value of the premises has diminished to the extent of the worth of the dower. The ten- ant would have subjected himself to the payment of rent, by holding over. The judgment of the Coxirt had set- tled the fact that there was an oul^ standing and better title than Dur- ham's, to a portion of this land. The existence of this claim was an incum- brance, ascertained and fixed by law, and was, in our opinion, such a breach of the warranty as to author- ize a suit; not to recover nominal damages only, but indemnity for the actual injury incurred. If the formal entry of a mortgagee for foreclosure, though made under a statute which does not require that the possession of the mortgagee should be contin- ued, is a breach, (9 Mass. Kep. 495 ; 16 Pickering, 56,) the conclusion is irresistible that the proceeding in this claim of dower would sustain the present suit." But it may be doubted whether the judgment of nonsuit in this case was not properly entered. If, indeed, the plaintiff had proved that he " had surrendered volunta- rily," the above remarks would have been perfectly correct. So, if there had been evidence that he had paid four or five hundred dollars, (as in Donnell v. Thompson, 1 Fairfield, (Me.) 170, and Tuite v. Miller, 5 West. Law Journal, 413 ; the case of Davis v. Logan, 8 B. Monroe, 342, was a, suit in equity, where all the parties to the title being before the Court, there was a general adjust- ment of tide and settlement of dam- ages) ; but the testimony of the wit- nesses seems to have merely been that by the proceedings the market- value of the land was diminished by that amount, that is to say, the cove- nantee would, before a resale of the THE COVENANT OF WARRANTY. 275. and some dicta which are not quite reconcilable to it, but it is believed to be supported by the weight of modern authority.^ premises by himself, be obliged to discharge the incumbrance or have its price deducted from the purchase- money he would receive, and, until these events had actually happened, it would seem that he had no right to more than nominal damages ; supra, p. 134. The case is worthy of con- sideration as evincing a strong desire in that State to make the covenant of warranty as comprehensive as pos- sible, and the course of decision in South Carolina, where an eviction is held unnecessary to a breach of this covenant, was cited with approba- tion. Indeed the precise point de- cided in Leary v. Durham arose in a very recent case in that State, where it was held that the mere assign- ment or assessment of dower consti- tutes a breach of the covenant of warranty; Lewis v. Lewis, 5 Rich- ardson's Law (S. Car.) K. 12. But it will be remembered that in South Carolina, the covenant of warranty is, in obedience to a long course of decision there, treated as a covenant for seizin ; see Mackey v. CoUins, 2 Nott & McCord, (S. Car.) 186, and supra, p. 219 ; and see also Williams V. Weatherbee, 1 Aikens, (Verm.) 240, supra, p. 219. 1 In W^itty V. Hightowor, 12 Sm. & Marsh. (Miss.) 478, the facts averred in the declaration were nearly the same as those in Waldron v. McCarty, supra, p. 270, and the declaration was held bad on demurrer. So in the more recent case of Burrus v. Wilkinson, 31 Mississippi, 537, where it was said, " until the purchaser has yielded possession to the superior title and been dispossessed thereof, the contract of purchase must be considered as in existence, and any outstanding title acquired by him cannot amount to an eviction, but will be treated as a purchase of an outstanding title, which cannot be used in disparagement of the title derived from the original purchaser." In Hannah v. Henderson, 4 Indiana, 174, the facts were much the same, and the Court considered that "the mere existence of the better title could not have constituted an evic- tion of the plaintiff. If he had yield- ed to it by giving up possession, or bought it in and continued his pos- session under it, the action might have been sustained," but it was de- cided that " the mere payment of the judgment to avoid a sacrifice of the land on execution and even a consequent eviction, will not author- ize a suit against the grantor on the covenant." In Reasoner v. Edmund- son, 5 Indiana, 393, although the mortgage had been foreclosed and the premises bought in by the mort- gagee, yet no sheriff's deed had been made to him, and there was no evi- dence that the plaintiff had either yielded up the possession or pur- chased the mortgagee's title, and it was hence properly held that there had been no eviction. " The case,'' said the Court, " is clearly distinguish- able from Hunt v. Amidon, 4 Hill, QS. Y.) 345, a case that goes farther in inferring an eviction from facts than any other we have met with." In .£76 THE COVENANT OF WARRANTY. It may, perhaps, be said, that there should be a distinc- tion taken between a lease and a purchase of the paramount Hunt V. Amidon, (1 Hill, 147; S. C. undoubtedly contained the usual di- 4 Id. 345,) the defendant had, for the rections as provided for in the 135th consideration of $1,200, sold to the rule of the Court of Chancery, that plaintiff's grantor, with a covenant of the purchaser should be let into pos- ■warranty, premises which were then session upon production of the Mas- encumbered by a mortgage, under foreclosure of which the premises were afterwards sold and bought for $470 by the plaintiff, who then brought an action of assumpsit for money paid to the vendor's use ; and Walworth, Ch. J., in delivering the opinion of the Court, said : — ter's deed and the actual sale under that decree, were not of themselves equivalent in equity at least to an actual eviction of Hunt by an action at law foimded upon a title para- mount to that which Amidon con- veyed to Babcock with warranty. " It is at least doubtful whether an "It is perfectly evident that if action at law could have been sus- Hunt, instead of purchasing in the tained upon this covenant for quiet premises himself under the decree of enjoyment without showing an actual foreclosure, had suffered them to be eviction. And I admit that under sold to a third person, and had de- such a covenant the grantee of the livered up the possession to the pur- land has no right to give it up volun- chaser as directed by the decree of tarily to a stranger who claims by foreclosure, he could immediately title pai-amount, or even to pay off have brought an action at law against Amidon, as assignee of the covenant, for quiet enjoyment contained in the deed from Amidon to Babcock, in which action he would have recov- ered the whole $1,200 mentioned in that deed as the consideration for the premises. The defendant therefore has been clearly benefited by the plaintiff's bidding in the premises himself at the Master's sale for the $470 which was due upon the decree for the debt and costs on the mort- gage foreclosure. The question then arises whether upon equitable prin- ciples, the plaintiff was bound to stand aside and suffer his land to be sacrificed to a stranger for this smaller sum, and then to resort to his action at law upon the covenant in the deed to Babcock ; or whether the decree of foreclosure and sale, which an alleged incumbrance without suit, and then resort to his action upon the covenant in the deed." The remark that the grantee has no right to give up voluntarily to a stranger who claims by title para- mount, is entirely justified by the authorities (see infra) ; and the ex- pression, " or even to pay off an alleged incumbrance without suit," must, it is apprehended, be referred to the same meaning, for it is gener- ally held that although it is absolute- ly necessary that the adverse claim should be hostilely asserted, yet that it is not necessary that the assertion should be made by a judgment, or even a suit, any more than it is ne- cessary that an eviction, when actual, should be under legal process and the effect of a judgment, a decree or a suit is, in this relation, no more THE COVENANT OF WARRANTY. 277' title by the covenantee, inasmuch as in case of a lease it is, in legal construction, the holder of the paramount title who than an unequivocal assertion of the right by the paramount claimant, (see infra, p. 288). In the recent case of Fowler V. Poling, 6 Barbour's S. C. (N. Y.) 1 68, Edmonds, J., said, in de- livering the opinion, " The grantee may surrender possession to the right- ful owner and that will be a sufSeient ouster to entitle him to his action on the covenant of warranty. It is true the Chancellor said in Hunt u. Ami- don, in the Court of Errors, that the grantee had no right to give up vol- untarily to a stranger claiming by title paramount ; but his remark was ohiter, and he was evidently mis- taken." It would seem, however, that if the Chancellor meant that a grantor had no right to abandon the possession until at least a demand made by the paramount owner or something done by the grantee, his language is fully justified by author- ity. After a rapid review of some of the authorities, it was added, " From these conflicting authorities, I deduce the true rule in this State to be, that there must be an actual disturbance of the possession, and that where the covenantee is actually out of posses- sion, either by due process of law or by an entry of the rightful owner or by a surrender to one having the paramount title, there is an eviction ; the covenant is broken and an action will lie." In this case the purchaser had, at the instance and request of his vendor, instituted proceedings in partition between himself and the holders of the paramount title (the latter having a title to an undivided part of the land), and had their share set off to them in severalty and sur- 24 rendered possession to them. Under these circumstances it was obviously held that there was an eviction 2'i'o tanto, and the remarks as to the pur- chaser being " actually out of posses- sion" would seem not to be necessary to the decision. In Paul V. Witman, 3 Watts & Serg. (Pa.) 357, however, Rogers, J., observed, " There must be a change of possession," which is unquestionably correct ; but the change of possession may be a constructive one — there must be a cessation of enjoyment under the bad title, but it would seem an unnecessary prelude to the acqui- sition of a new enjoyment under the good title, to go through a form of ouster and reentry. In Paul u. VP^it- man there was neither averment nor proof of anything to support even a constructive eviction, and hence the Court correctly said, " A judgment in ejectment, without more, is not an eviction ; there must be a change of possession. But if the declaration had averred an eviction, and the proof had been that the covenantee had actually retired before the judg- ment, or had been compelled to take a lease under, or to purchase the good title, it is possible that he might have been held entitled to recover." In the case of Poyntell v. Spencer, 6 Barr, (Pa.) 257, Gibson, Ch. J., re- marked, " Though a covenantee must actually go out of possession to bring himself within the words of the cov- enant, he need not wait till he is thrust out." If, however, the pre- ceding sentences are carefully read, it will be seen that this expression must not bo construed too literally. 278 THE COVENANT OF WARRANTY. is in possession, the possession of the tenant being that of the landlord, while in case of a purchase the possession re- mains in the covenantee. To this it may be answered, that although in the latter case the covenantee in reality remains in possession, yet he is supposed to have been actually ousted, whereby all connection with his former title is dissolved, and then to have been reinstated under the paramount title.^ Secondly. The next question under the head of construc- tive eviction is whether if the covenantee purchase or ac- cept a lease under the paramount title, with no actual change of possession, and when the title has never been established by a judgment or decree, a breach of the covenant will be caused. It will be remembered that in considering the third class of cases under the head of actual eviction, no distinction was made between a voluntary retirement when the paramount title was, or when it was not established by a judgment, it being sufficient that its holder had either the right to obtain possession himself, or to deprive the purchaser of it ; the only difference being, that when there was no such judg- These are, " If they (the holders of of possession to bring himself within the better title) had actually turned the words of the covenant, he need him out, his relation to the vendor not wait till he is thrust out." The would have been dissolved, and he law in Pennsylvania may be said to would then have unquestionably been be now settled by the case of Brown at liberty to form a new one by leas- v. Dickerson, supra, p. 271, in ac- ing or purchasing from them. But cordance with modern authority, for what purpose execute a writ of ^ Poyntell v. Spencer, 6 Barr, (Pa.) possession, and bring him back at the 257. It seems hardly necessary to next moment as a lessee or a pur- remark, that in every case in which chaser ? The ceremony would have an eviction would be held to be been a ridiculous one. A forcible caused by the purchase of the para- eviction on a recovery by title is not mount title, the damages would be an indispensable ingredient in the measured by the amount which had breach of a warranty. The defend- been fairly and 6ona_^rfe paid for this ant may give way to such a recovery, purpose, and could never exceed that and though he must actually go out amount. THE COVENANT OF WARRANTY. ^79 ment, the covenantee retired at his peril, with the burden of proving that the adverse title was one to which he would have been compelled to yield.^ Where there was a judaf- ment, it was held by some authorities to be prima facie evi- dence, and when the covenantor had proper notice of the ac- tion, it was conclusive evidence of the better title.^ I should not, therefore, class by itself the question now to be consid- ered, were it not that when there is no judgment or decree of a court of competent jurisdiction, it may be objected that every door seems open to fraud — that a party may receive the possession of land with a covenant of warranty, and may, without ever having left that possession, collusively purchase in any title, and then sue upon his covenant. To this it may briefly be replied, that when fraud is intended, it is easy to hide it behind a judgment or decree of a court. It is impossible for courts to give a severe scrutiny to every decree or judgment which they pronounce, where there is a primti facie right to such a j udgment on one side, and no denial of that right on the other ; nor, even if they had the power, would it be proper to do so. But this very circum- stance has given rise to the familiar rule, that although the judgment of a court of competent jurisdiction, acting within the scope of its authority, cannot be inquired into collaterally but binds parties and privies to it, yet that it may always be impeached on the ground of fraud.^ There would seem to be no means by which a covenantor could possibly be in- jured 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 cove- nant, the whole question of title cannot be gone into, and that is where the party bound by the covenant refuses, upon 1 Supra, p. 248. applies to actions on the covenants 2 Supra, pp. 236, 248, 249. for title ; Wilson v. McElwee, 1 Strob- 3 And, of course, the rule equally hart, (S. Car.) 66. 280 THE COVENANT OF WARRANTY. proper notice, to come in and defend. Having thus, by his own laches^ lost the advantage of trying the question of title then, he must suffer for his neglect afterwards ; and even under these circumstances, the plaintiff is obliged to prove that the adverse title is not one derived from himself.' Indeed, in proportion as the conclusiveness of the judg- ment is increased, the temptation to fraud will increase also, and it is, therefore, most for the interest of the covenantor that as little effect as possible be given to a judgment to which he has not been a party or privy. But the advantage to be obtained by the covenantee from a collusive judgment can always be counteracted. Such an advantage must be sought to be gained, if at all, by enabling him to purchase in the paramount title at a low price, and then recover from the covenantor the full consideration paid for the premises. But by limiting the damages, as is done in the case of the covenant against incumbrances, to the actual amount thus paid,^ every temptation to fraud is precluded, and the covenantor is always allowed, in mitigation of dam- ages, to give evidence of what the plaintiff has paid to buy in the outstanding title,^ and if the amount which he has thus paid be a nominal one, his damages will be nominal also.* In accordance with these principles, it has been held that a purchase by a covenantee, of an outstanding paramount 1 Supra, p. 230. to protect his title, takes up an out- 2 Supra, ^. 138. standing incumbrance, he is entitled 3 Tufts V. Adams,8 Pickering, (Mass.) only to be refunded the amount paid. 550; Colev. Lee, 30 Maine, 392. But when th'e property is bond Jide 4 Leffingwell ti. Elliot, 8 Pickering, sold under a mortgage or judi-ment 457 ; S. C. 10 Id. 204 ; Loomis v. Be- lien, existing at the time of the con- del, 11 N. Hamp. 87. There are dicta tract, -without fraud or connivance to a contrary effect in Martin v. At- on the part of the vendee, and the kinson, 7 Georgia, 237, where Lump- vendee re-purchases it, the price kin, J., in delivering the opinion, which he pays is no criterion what- said, " Whenever a vendee, in order ever of the damage sustained." THE COVENANT OF WARRANTY. 281 title, when that title is actually asserted, will constitute such an eviction as will entitle him to damages upon his cove- nants for quiet enjoyment or of warranty, measured by the amount he has thus paid. Thus in Loomis v. Bedel, the plaintiff, in his action on the covenant of warranty, proved a prior conveyance, by his covenantor, of part of the premises to other parties. The land was wild and uncultivated, and there was no actual possession by any one. Upon the death of one of the prior grantees, his interest in the land was sold by his administra- tor at public sale and purchased by the plaintiff, and it was held that these facts constituted an eviction.^ So in a re- cent case in Vermont, the purchaser having been sued by the 1 11 N. Hamp. 74. " It seems to be generally settled," said Parker, Ch. J., who delivered the opinion of the Court, " that in order to sup- port an action upon a covenant of warranty, there must be something more than evidence of an outstand- ing paramount title. There must be an assertion of that title, and an ous- ter or disturbance by means of it. But no technical eviction by a judg- ment at law is necessary, nor is any resistance of the paramount title, legal or otherwise, required, to the maintenance of an action upon the covenant. It is well settled, that an entry under the paramount title amounts to a breach of a covenant of warranty. And the grantee may upon demand surrender the land to a claimant having a good title, and re- sort to his action. Hamilton v. Cutts, 4 Mass. Kep. 349. But in Waldron ». McCarty, 3 Johnson, 464, where there was an outstanding mortgage at the time of the conveyance to the plaintiff, and the premises were after- wards sold upon the mortgage in pur- 24* suance of a decree of the Court of Chancery, and purchased by the plaintiff, who then brought his action upon the covenant of warranty in his deed, the Court held that an en- try and expulsion were necessary, and that there was no sufficient evic- tion or disturbance of the possession. In our opinion, this is carrying the principle too far. If the claimant holding the paramount title should enter upon the land, and the grantee should thereupon yield up the pos- session, he would immediately have a right of action upon the covenant of warranty in his deed ; and this right would not be barred or forfeited should he forthwith purchase the premises from the claimant, to whose superior title he had thus yielded the possession. He might, on such pur- chase, immediately re-enter into the possession, and still maintain his ac- tion on the covenant. If, instead of this formality, he yieIds,to the claims of a paramount title, and purchases without any actual entry of the claim- ant under it, where is the substantial 282 THE COVENANT OF WARRANTY. holder of the paramount title, bought in that title before final judgment and in order to prevent being dispossessed of the land, and it was held that this was an eviction.^ difference ? For all practical pur- poses, his title under the grant to which the covenant is attached and under which he originally entered, is as much defeated in the one case aa in the other. He is in fact dispos- sessed, so far as that title is con- cerned. He is still in possession, but he is so under another title, ad- verse and paramount to his former one ; and his purchase is, therefore, equivalent to an entry of the claim- ant. It is an ouster by his consent, and a re-entry by himself, under the superior title, without going through with what would be at best a mere formality, where, conscious of the de- fect of the title under which he orig- inally entered, he chooses to yield peaceably to the assertion of a better title, and to purchase it. The gran- tor who conveys a defective title, with a covenant of warranty, has no rea- son to complain of this. No action can be maintained against him upon his covenant, in such case, except upon proof of the actual existence of a title superior to the one he con- veyed, and which his grantee could not withstand at law ; and if that proof is made out, with evidence that the title was asserted and yielded to, why should he be permitted to insist there must be a formal surrender of the possession, or actual entry, and that if this was not done there could be no breach of his covenant? How would his interests be benefited by the aoins out and going back again ? The ouster, so far as holding under his title is concerned, is as effectual by a purchase without actually leav- ing the premises, as it could be by peaceably leaving them, or even by an expulsion through the operation of legal process. Sprague v. Baker, 17 Mass. 590." The judgment be- low, in this case was, however, prop- erly set aside on the ground of the measure of damages, the Court say- ing that there was no evidence of the amount which had been paid by the plaintiff for the purchase of the property, and that his damages must be measured by that amount unless it exceed the value of the land. 1 Turner v. Goodrich, 3 Deane, (Verm.) 709. " We have now the case," said Redfield, Ch. J., who de- livered the opinion, " of a suit brought by one having an elder and better title, and before final judgment the covenantee, to prevent being dispossessed of the land, purchases in the title at a fair rate. This, no doubt, in justice and moral equity is the same thing as eviction. As the covenant is intended to bind the covenantor to defend not only the title but the possession, and the rule of damages adopted in this State is also intended to indemnify the pur- chaser for the loss of both, it is highly just and proper that he should re- cover such indemnity under the cove- nants of warranty. If the cove- nantee never takes possession, or if having taken possession the outstand- ing title is not asserted against him, he may have fuU indemnity by action upon the covenants of seizin. But when he is in possession of the land, THE COVENANT OF WARRANTY. 283 There are a few cases whose language might admit of misconstruction, and which, .therefore, it seems proper to notice here. Thus in a case in Kentucky,^ it was broadly said, " It could not be disputed that if a vendee, before evic- tion, purchase in an outstanding paramount title, he cannot continue in possession under his first purchase, and claim damages as for a breach of warranty, on account of the and the suit is brought, or the title asserted in any way, perhaps, where- by it becomes impossible for the cove- nantee longer to maintain his posses- sion, it is the same thing whether he yields without suit or after judgment, to a writ of seizin and possession, or buys in the outstanding title at a fair rate. Of course, if he yields to a claim of title, without suit or with- out judgment or notice to the cove- nantor to defend his title, he assumes the burden: of showing' the title to which he yields, good, and so also if he purchases in the outstanding title ; and in either case, he must rebut all possible implication of collusion. But this is matter of evidence, and when established, it should, and as we regard the recent decisions, does con- stitute a breach of the covenants of warranty, and entitles the party to recover the amount paid to obtain the title, and all expenses necessary in the premises, which must extend to the costs of the suit, while pending, and counsel fees ; Pitkins v. Leavitt, 13 Vermont, 379. " A summary of the cases upon this point will be found in Eawle on Covenants, 234 et seq. The author assumes that the American law is fully settled to this extent. The cases in which the law is so decided or so declared are as follows : Clapp v. Coble, 1 Dev. & Bat. Chan. R. 177 ; Sprague v. Baker, 17 Mass. 590. In this case, the outstanding title was in fact a mere incumbrance, and should have been so regarded probably ; but the Court held it a breach of the covenant of warranty, as a perfect title would have been, if asserted and bought in by the covenantee to save being dispossessed under it. Patten v. McFarlane, 3 Penn. 425. Dickinson v. Vorhees, 7 Watts & Serg. 409 ; Loomis v. Bedel, 11 N. Hamp. 74; Brown u. Dickerson, 12 Penn. State E. 372. " The conclusion of the author, which seems to be fully justified by the cases, is, ' That the weight of authority is in favor of the position that the purchase by the covenantee, of an outstanding paramount title, when that title is actually asserted, will constitute such an eviction as will entitle him to damages upon his covenants for quiet enjoyment or of warranty, measured by the amount he has thus paid,' and necessary ex- penses of course, according to the decisions in this State and at common law. This rule,' as applied to one who has entered into possession un- der his deed, is no doubt the true rule, and I have no doubt is fully sus- tained by the latest and best English decisions upon this subject." 1 Vanmetre v. Gritfith, 4 Dana, (Ken.) 92 ; see this case, infra, p. 284. 284< THE COVENANT OF WARRANTY. title he has acquired." In a previous case,^ it had been laid down by the Court that " If a vendee acquire a paramount title under such circumstances, the most he can do in equity is to show the advances made, and claim to be considered as the agent and trustee of the vendor in acquiring the adverse title, or (if the vendor refuse so to consider him) to surren- der the possession acquired from him and use the newly purchased title in warfare. He cannot continue in posses- sion, and set up the new title in hostility to the old." But this language proceeds upon a misapplication of the familiar principle in equity that if a mortgagee, executor, trustee, tenant for life, &c., tvho have a limited interest, get an ad- vantage by being in possession, or " behind the back " of the party interested in the subject-matter, he shall not retain it for his own benefit, but hold it in trust.^ This, however, it is believed, was never applied to the case of a purchaser, with reference to his remedy on the covenants for title, as he can have no interest in setting up or procuring an adverse title except for the simple purpose of his own protection, and this protection the vendor has expressly covenanted to aflford. The mistake has arisen from forgetting that the measure of damages is not, in such cases of purchase, the consideration- money and interest (which would open every door to fraud), but simply the amount which has been paid to purchase the paramount title.^ 1 Morgan's Heirs v. Boone's Heirs, puroliase in an outstanding title to 4 Monroe, (Ken.) 297. the prejudice of his co-tenant, but s Nesbitt V. Tredennick, 1 Ball & that the purchase must enure jointly Beatty, 46 ; Holeridge v. Gillespie, to both. Vanmetre i;. Griffith, 4 2 Johns. Ch. 33 ; Burhans v. Van Dana, 92, was quite correctly de- Zandt, 7 Barbour, S. C. (N. Y.) 102. cided. One who had received land 3 The cases of Venable v. Beau- with covenant of warranty, con- champ, 3 Dana, (Ken.) 323, and tracted with the paramount owner to Coleman v. Coleman, Id. 403, de- buy in his title, in case it should cided no more than that one tenant prove, on legal investigation, to be in common could not, before eviction, the better one. Suit was brought THE COVENANT OF WARRANTY. 285 It may also be observed that cases sometimes occur where courts of equity have brought before them the whole ques- against the covenantee, and notice given to the covenantor. Judgment was entered in favor of the para- mount title by confession, and on a writ of possession the sheriff indors- ed that he had delivered the pos- session to the plaintiff's agent, who then delivered it to the covenantee, held, and rendering the original ven- dor liable upon his warranty as for an eviction, whereby the vendee, be- side the advantage of continuing in possession, may gain the diiferenoe between the amount recoverable up- on the warranty, and the sum which he has given for the paramount title, and the latter then sued the repre- it is obvious that he will have gained sentatives of his covenantor, who had died in the mean time, and judgment was confessed for the amount of the original purchase-money, with inter- est. For part of this judgment one of the administrators gave his own note and paid the balance, and then upon discovering the contract which had been made between the covenan- tee and the paramount owner, and that the amount paid by the former for the paramount title was less titan his advantage at the expense of his vendor, by a contract made while he was certainly in possession under the vendor's title, and while the obliga- tions of fidelity and good faith be- longing to the condition of a vendee in possession under warranty, were resting upon him in their full force and vigor. To establish such a con- sequence would be to admit that a vendee in possession may, by a con- tract made for his exclusive benefit, the judgment wliicJi he had recovered place himself in hostility to the title against the estate of the covenantor, filed a bill to restrain the collection of the balance of the judgment and to refund the excess over the amount thus paid by the covenantee. The Chancellor, under these circumstan- ces, most properly decreed for the complainant, and the Court of Ap- peals affirmed the decree. With under which he acquired and holds possession ; and that he may, by means of the title and possession de- rived from his vendor, obtain an ad- vantage at the expense and by the loss of the vendor." The results thus deprecated are, as has been said, pre- vented, or, as in this case, cured, not by denying a covenantee any remedy these facts in view, the remarks of upon his covenant, but by strictly Marshall, J., in the latter court, are limiting his damages to the amount perfectly appropriate : " If a judg- paid by him for the better title. The ment obtained," said he, " under case of Woodward v. Allen, 3 Dana, such circumstances, and the effect of 164, though perhaps more properly which, by operation of a previous classified under the preceding head, contract made by the vendee, is to confirm the existing possession by uniting the paramount title to it, shall be allowed to have the further effect of severing the possession from the title under which it was originally may be referred to as showing that the law in Kentucky is in harmony with the more modern authorities elsewhere. In that case, there was a covenant for restitution of the con- sideration money if the land should 286 THE COVENANT OF WARRANTY. tion of title, and all the parties are before the court! This perhaps most frequently happens in the marshalling or ad- be lost " If it be admitted," said Robertson, Ch. J., " that a covenant to be responsible if the land is lost, is tantamount to a covenant of gene- ral warranty, and that, therefore, an eviction would be indispensable to the plaintifl''s right to maintain this action, still we are clearly of the opinion that he proved on the trial every fact that was necessary to en- title him to a judgment. He exhib- ited a judgment of eviction in an action of ejectment, and proved that the defendant as well as himself was a party to the ejectment, that the judgment was for the land embraced by the covenant, and that he had, after the judgment, surrendered to one of the lessors and leased the land of him." In Johnson v. Nyce's Executor, 1 7 Ohio, 66, the declaration averred a right of dower in the widow of a prior owner of the property, and upon her petition for dower being filed, the covenantee took defence, " and such proceedings were had therein that afterwards, in Novem- ber Term, dower in all of said lands and premises was duly assigned and confirmed unto the said J. M. at the gross sum of $137.50, which the plaintiff was thereby ordered to pay to the said J. M., in full for her dower, &c., in sixty days after said November Term, and in default thereof that execution issue as upon judgments at law, by means whereof the plaintiff has paid and been liable to pay a large sum of money," &c. On demurrer, it was held that this was no eviction. " We do not doubt," said Hitchcock, J., " that the cove- nant in the deed is sufficient to cover a claim for dower, provided the same be prosecuted to such a result that the covenantee is thereby deprived of even the temporary possession of the whole or any part of the land conveyed. It may be thought that a covenant against incumbrances is the appropriate covenant to meet such a case, but it is equally well met by the covenant of warranty. In order, however, to maintain an action upon the latter covenant, there must, as a general rule, have been an eviction, and this fact should appear from the declaration. There are exceptions, it is ti'ue, to this general rule, and in particular cases other matters have been held equivalent to an eviction. In the case of King v. Kerr's Ad- ministrators, 5 Ohio, 154, the Court say, in speaking of the covenant of warranty, ' this covenant is not broken until the grantee, his heirs or assignee, is evicted from or disturbed in the enjoyment of the premises or a part of them, by the setting up of a supe- rior or paramount title.' Still, in that case it was determined that where, after a judgment in eject- ment, the tenant remains in posses- sion, claiiping payment for improve- ments under the occupying claimant law, and while so remaining in pos- session purchases in the paramount title, the tenant may have an action upon the covenant of warranty against his grantor, although not ac- tually evicted. In niaking this de- cision the Court was controlled by the principles of the occupying claimant law. Under that law, the occupant cannot be dispossessed un- THE COVENANT OF WARRANTY, 287 ministration of assets, some of the instances of which have already been referred to.-^ In these cases, where an equi- table adjustment of all conflicting claims can be made and compensation awarded, either by reference to a Master, or if necessary, by issues of qumitum damnificatus, the rule as to eviction is more relaxed, and it seems not necessary that even a payment to purchase the better title should have been made, but the paramount right having been estab- til paid for his improvements. And if the claimant should neglect to make payment, the occupant must either lose the benefit of his im- provements, or be delayed in the proceeding under his covenant. The Court held that this case might be well considered as an exception to the general rule that no action could be sustained until actual evic- tion." The case of Tuite w. Miller, 5 West. Law Journal, 413, (not Tuite V. Miller, 10 Ohio, 383,) was then mentioned and approved. In that case, one third of the rents and profits of the land had been set off to the widow for her dower and made a charge upon it, and it was ordered that unless payment was made, the land should be sold. This was held equivalent to an eviction. But, it was said in Johnson !'. Nyce's Exr., that in the case then before the Court there had been no assignment of dower by metes and bounds, nor, according to the local statute, of one third of the rents. " The statute seems to have been entirely disre- garded. True, a decree was made in the widow's favor against the plaintiff for $137.50, which was to be in full of dower. This, however, was not made a charge upon the laud, and could in no shape act as an incumbrance upon it. It was a mere personal debt to be enforced by execution. ... It had no opera- tion to incumber the land. Had the one third part of the land been set off by metes and bounds, and the widow put in possession, or had dower been assigned according to the statute, as in Tuite v. Miller, then the plaintiff might have had redress on the covenant of warranty. But as the case is now presented, he can have no such redress.'' This case should be read in connection with the one next reported, viz., Nyce's Exr. v. Obertz, 17 Ohio, 71. The circumstances were the same as in the previous case, except that the covenant sued upon was that against incumbrances, which was held not to be broken. See supra, p. 122. It is evident, from an examination of these two authorities, that they were decided under special circumstances. The Supreme Court seem to have determined, owing to the apparent disregard of the provisions of the local statute as to dower, by the Court which had pronounced the de- cree, that no recovery should be had under these circumstances upon any of the covenants for title. With this end, the case of Nyce v. Obertz went very far. 1 Supra, p. 158. 288 THE COVENANT OF WARRANTY. lished, the amount of damages is equitably adjusted with- out making this essential.^ Such cases, however, it must be observed, are exceptional, and occur, perhaps, only when all the parties to the title are before the court, and their respective rights are capable of equitable adjustment. But, it may be asked, what then is the practical distinc- tion between a covenant of warranty, and a covenant for seizin or against incumbrances ] The answer to this is, that, under the latter covenants, the purchase of the adverse claim has nothing to do with their breach. If the title be defective, or if an incumbrance exist, these covenants are broken as soon as made, and the purchaser has then a right of action which, as such, is not affected, either beneficially or injuriously, by the purchase of the paramount claim. Such a purchase merely affects the question of damages. The question whether the claim is or is not asserted, and if asserted, to what extent, has noth- ing to do with the right of action — it is sufficient that such claim exists. But under the covenant of warranty, as usually ex- pressed, it must not be supposed that a' purchaser can, as a general rule, buy in any paramount claim, and elect to consider himself evicted to the extent of the purchase- money of such claim. However far the doctrine of con- structive "eviction may be supposed to have been carried, it is believed to be still absolutely necessary that the adverse claim should have been hostilely asserted. It is not neces- sary that the assertion should be made by a judgment or even a suit, any more than it is necessary that an eviction, when actual, should be under legal process.^ The effect of a judgment, a decree or a suit is, in this relation, no more than an unequivocal assertion of the right by the paramount claimant. According, therefore, to the weight of authority 1 See supra, p. 158, and infra, Chapter XIII. 2 gge supra, pp. 242, 249. THE COVENANT OF WARRANTY. 289 at the present day, the distinction is not whether there has or has not been a judgment in favor of the paramount claim, but whether such claim has or has not been adver- sarily asserted.^ This is well illustrated by a case in Pennsylvania, where a covenantor having neglected to pay the purchase-money due to the Commonwealth, it was voluntarily, and without claim being made by the latter, paid by the covenantee, who, it was held, was not, under these circumstances, en- titled to recover upon his covenant of warranty, as the possession had never been disturbed or threatened.^ So, 1 The difference thus sketched be- tween these covenants was approved in the late case of Funk v. Cress- well, 5 Clarke, (Iowa,) 89. 2 Fatten V. McFarlane, 3 Penn. 419. "If a recovery in this case upon the covenant of general war- ranty," said Kennedy, J., who de- livered the opinion of the Court, " can be supported without either allegation or proof of an eviction, it would, in effect, be deciding that the covenant of general warranty con- tains within it each of these five cov- enants for title, which would be a novel idea to conveyancers and pro- fessional men. Because I cannot conceive of any defect or objection that can be discovered which may affect either the possession or the sufficiency of the title to invest the vendee completely with the estate professed to be conveyed, that may not, with as much propriety as the present case, be embraced in and considered as provided against by the covenant of general warranty, and an action supported for a breach of it, without either averring or proving an eviction. . It comes to this, that the covenant of general 25 warranty may either be considered as a covenant for seizin, of good right to convey, of quiet enjoyment, of indemnity against incumbrance, or for further assurance, as may best suit the wishes of the vendee. But it has been decided by the Supreme Court of the State of New York, when composed of Judges alike dis- tinguished for their talents and legal intelligence, that a general warranty contained no covenant of seizin, either express or imphed. Vander- karr v, Vanderkarr, 11 Johns. 122. It was the inaptitude of the cove- nant of general warranty to accom- modate itself to the various inten- tions of the parties, as well as the circumstances connected with the titles to the land, that first gave rise to these special covenants, and rec- ommended them to general use, which repudiates the idea of their being contained within it Although the Commonwealth had a claim against the land in the case under consideration, yet she had taken no step whatever, after the conveyance of it to McFarlane, to enforce the payment of the money Whether she would have done so, 290 THE COVENANT OF WARRANTY. in a later case, the same Court held that " until an eviction of the grantee or a demand made of the land from him by one having a better title for it, the covenant of warranty could not be said to be broken," ^ and, more recently, that was uncertain, and Patton had a right under his covenant of warranty with McFarlane, to avail himself of all the indulgence that might be given by delay on the part of the Commonwealth to proceed against the land, to have the money collected by a sale of it. Although it may be considered certain that the payment of the money would have been com- pelled some day or other, yet it might make some difference to Pat- ton whether he was to be called upon immediately, at the will of McFarlane, for payment, or to have it postponed to a distant day by for- bearance on the part of the Com- monwealth to proceed to collect it." So far, however, as this case ap- proved Waldron v. McCarty, 3 Johns. 417, it should be observed that that case has been since dis- tinctly overruled in Pennsylvania, (Brown v. Dickerson, 2 Jones, 372,) as well as elsewhere, (see supra, p. 270,) and would not be recognized as law at the present day in New York ; Hunt v. Amidon, 4 Hill, 349 ; Fowler v. Poling, 6 Barbour's S. C. 168. So in a recent case in Mis- souri, Shelton v. Pease, 10 Missouri, 482, it was said, " The covenant de- clared on is to warrant and defend the title and possession against all liens, and especially against the in- cumbrance specified in the deed. There is no covenant that the grantor will pay off the mortgage, nor is any such covenant implied by the cove- nant of general warranty. Nor is the payment of the mortgage by the grantee any breach of the covenant of general warranty or of the cove- nant of quiet enjoyment. It seems to be well settled that a disturbance of the possession is necessary to con- stitute a breach of these covenants. Among the numerous cases which are to be met with on this subject, both in the United States and in England, I have met with none in which a mere payment of money for the purpose of buying in a para- mount title or extinguishing a mort- gage, has been held to be a breach of the covenant of warranty. The case of Sprague v. Baker, 17 Mass. 586, seems to countenance this idea to some extent, but even in that case, whose authority has been much questioned, the payment of the mort- gage was made under threats of a suit for possession." The decision in Caldwell v. Bower, 17 Missouri, 568, is to the same effect. It was not, however, necessary to deny the authority of Sprague v. Baker, which, on examination, will, it is thought, be found to have been cor- rectly decided; (see supra, p. 270,) nor am I aware that the authority of that case has on this point been questioned. It has been virtually overruled in Massachusetts on an- other and totally different point, viz., the capacity of the covenant against incumbrances for running with the land ; see infra. Chapter VIH. 1 Dickerson v. Voorhees, 7 Watts & Serg. (Pa.) 409. THE COVENANT OF WARRANTY. 291 " there must be proof at least of an involuntary loss of possession." ^ So, in a recent case in New York, land, of which a part had been returned to the comptroller and sold by him for unpaid taxes, was subsequently conveyed,' with a covenant for quiet enjoyment, to a purchaser, who, on the last day for the redemption of the land, paid the amount of taxes, with charges, &c., and thereby redeemed the land, and then brought suit on his covenant. It was held, however, by the Court below, that the action could not be maintained, there having been no payment of money at the request of the defendant, and no eviction, and this ruling was sustained by the Supreme Court, which held that as there was no covenant against incumbrances, the plaintiff had no right to pay voluntarily and without any request on the part of the defendant, and charge him with such payment.^ A different 1 Dobbins v. Brown, 2 Jones, (12 Penn. State R.) 79. See this case noticed infra, p. 295. 2 McCoy V. Lord, 19 Barbour's S. C. (N. Y.) 18. " Upon principle," said Greene, J., who delivered the opinion, " this seems a very clear case. The plaintiffs purchased a piece of land of the defendant, and in the conveyance which they took, provided for their own security by such a covenant as they thought proper to exact and the defendant was willing to execute. The rights of the parties under that covenant are well settled and understood, and there is no pretence that it has been broken. But it is supposed that there is something in the peculiar circumstances of this case from which the plaintiffs derived a right to pay the money in question, aad charge the defendant with it in this action. And the cases of Hunt v. Amidon, 4 Hill, 345, McCrea v. Purmort, 16 Wendell, 460, S. C. 5 Paige, 620, and Exall v. Partridge, 8 Durn. & East, 308, are cited. These cases are all distinguishable from the case under consideration by peculiar facts existing in each case upon which the judgment of the Court was clearly founded. This fact renders criticism, which is precluded by the authority of the last two oases, unnecessary in all. It is sufficient tliat none of them afford any " authority for this action. The plaintiffs' covenant for quiet enjoyment has never been broken, for the reason that there never was any eviction. They were not compelled by legal process to pay, as was the case in Hunt v. Ami- don and Exall v. Partridge. And as they had no covenant against in- cumbrances, they had no right to pay them voluntarily and without any request on the part of the de- fendant, and charge him with such payment. It is no answer to say THE COVENANT OF WARRANTY. rule might, however, apply in the case of a covenant for quiet enjoyment, expressed as is usual in English convey- ances,^ and in a recent case in Maine, it has been held that where the covenant was one of non-claim,^ " the purchaser was not bound to wait until such measures were taken to deprive him of possession, when his remedy against the de- fendant might be fruitless." ^ So, where in Iowa there is a statutory form of a covenant of warranty which is consid- that it would be a hardship for the plaintiffs to be compelled to wait un- til they were evicted, and then sue for the purchase-money and lose the enhanced value of the land and im- provements. But for the covenant for quiet enjoyment they could not even recover the purchase-money in a case free from fraud ; and if they desired a remedy adequate to other contingencies, they should have pro- vided for it by appropriate cove- nants. These covenants have been long in use, and the rights and reme- dies of parties under them have been long and well settled ; and it is a sufficient answer to this action, under such circumstances, that there is no precedent for it." 1 That is 'to say, that the pur- chaser shall enjoy without any let, suit, &c., and that free from all in- cumbrances, &c., supra, p. 109, &c. Such was the form of the covenant in Hall v. Dean, 13 Johns. 105, where it was held that the purchaser was entitled to recover the amount he had voluntarily paid to extin- ,guish the incumbrance. 2 See supra, p. 222. 3 Cole V. Lee, 30 Maine, 392. " But," continued the Court, " as under a deed containing the com- mon covenant of warranty against incumbrances, he, as grantee, might remove them, and resort to the cov- enant of his warrantor in -an action for indemnification." If " the com- mon covenant " here referred to be the ordinary covenant of warranty as expressed supra, p. 224; then these remarks are apparently incon-- sistent with the course of decision in Pennsylvania and New York, no- ticed in the text. But if the cove- nant be indeed a warranty against incumhrances, the case would, it is apprehended, fall within the distinc- tion noticed supra, in note 1. The case itself was simply one of a mort- gage given by the defendant to one Nickerson, and a subsequent mort- gage by the former to the plaintiff with a covenant of warranty, which latter mortgage was afterwards ex- tinguished by a quitclaim deed from the defendant to the plaintiff, con- taining the covenant that neither he nor his heirs nor any one claim- ing under him or them should, by any way or means, claim or demand any right or title to the premises. The plaintiff bought in the Nieker- son mortgage and took an assign- ment of it, and it was held, in a suit upon the covenant, that he was enti- tled to recover the amount paid by him. THE COVENANT OF WARRANTY. 293 ered " to include and imply every lesser covenant for title," it was held that where a grantor refused to pay off' a tax which was a lien upon the land conveyed, his grantee might pay the same, and recover the amount so paid, in an action on the covenant.^ Fourth. In the preceding classes of cases which have thus been attempted to be considered, the loss for which the benefit of the covenant was invoked, has been that of the land itself, or of some corporeal right incident to its enjoy- ment. But in case the subject of the loss has been an in- corporeal right annexed or incident to the land, or some- thing which represented, or stood in the place of the land, there have been at least two decisions to the effect that such a loss is not within the scope of a covenant of warranty. In the case of Mitchell v. Warner, decided in Connect- icut, in 1825,^ 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 title, diverted from the land, it was held that the covenant was not broken, either by the existence of the paramount right, or by the actual entry and diversion of the water in pursuance of it. But it may be observed of this decision, that although authorities were cited to show that, at com- mon law, warranty extended to rents, commons, " and all things issuing out of the land," and to incorporeal heredita- ments, yet the Court proceeded upon the distinction that these authorities could not have meant to include incorpo- real hereditaments which were not tenements, and it was said that water, and a right to draw water, were indeed in- corporeal hereditaments, but not tenements, as not being of a permanent nature. Such a distinction was -not, however, 1 Funk V. Cresswell, 5 Clarke, (Iowa,) 91. ^ 5 Connect. 497. 25 * 29* THE COVENANT OF WARRANTY. taken in the authorities thus cited,^ and seems open to much objection ; for it is elementary law that " if a man grants all his lands, he grants thereby all his mines of metals and other fossils, his woods, Ms tvaters and his houses, as well as his fields and meadows, and by the ilame of land, which is nomen generalissinium, everything terrestrial shall pass, and it would seem natural to suppose that when a warranty accompanied such a grant, its scope was co-extensive with the subject-matter.^ Hence in a recent case in Pennsylvania, a covenant for quiet enjoyment in the lease of a furnace and grist-mill was held to be broken by the diversion, under par- amount right, of the water of the stream.* So where the plaintiff, in an action on his grantor's covenant of warranty, 1 Co. Litt. 46, 48, 388, 389 ; Touch- stone, 184; 2 Blatik. Comm. 18; Pomfret v. Ricroft, 1 Saunders, 322 ; Bally V. Wells, 3 AVilson, 26. "If he that hath a rent, common, or any profit out of the land in tail, disseize the tenant of the land and make a feoffment of the land, and warrant the land to the feofi'ee and his heirs, regularly the warranty doth extend to all things issuing out of the land, that is to say, to warrant the land in such plight and manner as it was at the hand of the feoffor at the time of the feoffment with warrantie, and the feoffee shall vouch as of lands discharged of the rent, &c., at the time of the feoffment made ; " Co. Litt. 388 b. The passage in the Touchstone is, " A warranty indeed may be annexed to estates of inher- itance or freehold, and that not only of corporeal things which pass by livery, as houses, lands and the like, but also of incorporeal things which lie in grant, as advowsons, rents, commons, estovers and tlie like, which issue out of lands or tene- ments." 2 2 Black. Comm. 18. 3 It was likewise decided in Whee- lock V. Thayer, 1 5 Pickering, (jVIa^s.) 70, that the benefit of a covenant of warranty contained in a grant of a right of drawing water fi'om a pond would not enure to a subsequent pur- chaser 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 of and concerning land." Such a distinction is very technical, and un- supported by authority, and this case and that of Mitchell v. Warner, have been questioned in the note to Spen- cer's case, 1 Smith's Leading Cases, (5th ed.) 161. The subsequent case ., in Connecticut of Griswold u. Allen, 22 Connect. 89, was decided merely on the ground that the grant was of a limited privilege, and the covenant coextensive with the grant. 4 Peters v. Grubb, 9 Harris, (21 Penn. State R.) 455. THE COVENANT OF WARRANTY. S95 offered to prove that at the date of the deed there had been a house on the premises, which had been since removed by a former tenant, under a prior agreement between the ten- ant and the grantor, by which the former was to be at lib- erty to remove the building whenever his term expired, it was held that the mere statement of the case was the strongest argument that the removal was a breach of the covenant. " What," it was said, " is a more thorough eviction than the absolute removal or destruction of the property con- veyed, if the act is done in pursuance of a title superior to that of the grantor at the date of the deed, and what would constitute a more complete breach of the covenant against the grantor and his heirs, than the removal of the house by a title derived from him, anterior to his deed to the plaintifFI " ^ In the case of Dobbins v. Brown, decided in Pennsyl- vania in 1849,^ it appeared that the defendant, being the owner of certain lots, executed a sealed instrument by which, in consideration of the benefit to be derived to him from the opening of the Pennsylvania Canal through the lots, he agreed that the agents of the Commonwealth might enter upon, occupy and keep so much of them as should be neces- sary for a canal, and released all claims for damages for land so taken. Ten years afterwards, he sold these lots to the plaintiffs with a general covenant of warranty, and in the following year, the canal was, notwithstanding the plaintiff's prohibition, laid out and constructed across those lots, by the authority of the Commonwealth, occupying nearly one third their surface, whereupon the plaintiffs brought suit on the covenant, and at the trial obtained, under the charge of the 1 West V. Stewart, 7 Barr, (Penn.) and see accord. Mott u. Palmer, 1 123 ; there had been a prior decision Comstock, (N. Y.) 527, cited supra, to the same eiFect in Kentucky, with p. 53. respect to the removal of a log cabin, 2 2 Jones, (12 Penn. State R.) 75. Combes v. Fisher, 3 Bibb, (Ken.) 51, 296 THE COVENANT OP WARRANTY. Court below, a verdict for about one third of the consid- eration money.^ But the judgment was reversed by the Supreme Court, on the grounds, first, that a covenant of warranty does not extend to an entry by the Commonwealth in the exercise of her right of eminent domain ; secondly, that there had been no eviction of the land, but at most an interruption of the enjoyment of an easement ; thirdly, that the defendant's release to the Commonwealth was no eviction, being merely a release of a claim to compensation, which could not have fallen within the ancient warranty, which had regard to things corporeal, and therefore could not fall within the modern covenant ; and fourthly, that the 1 The charge of the Court as to the right to recover, was as follows : " The alleged breach of warranty is the eviction by the Commonwealth under a prior authority or license given by defendant. This eviction, it seems, is but a partial one in point of fact, thus far. Was the eviction to the prejudice of plaintiff, and one warranted against by defendant ? Certainly, but not absolutely and without qualification. It is true, the Commonwealth have the right, ex- ercised under certain conditions, pro- vided for in the Constitution (§ X., Bill of Rights) ; for without it makes just compensation, it is not easy to find in it even any other rights than has any private citizen, except it be that it may exercise the right and then make compensation, whereas a private citizen must precede it with the compensation and consent of the owner. The consent may be already considered as given to the Common- wealth by every citizen owning prop- erty, yet it must be understood upon the express stipulations of the Con- stitution. That right itself may be considered inherent in the govern- ment ; so is the right to compensa- tion in the citizen. This general warranty in the deed is not broken by the mere exercise of this right on the part of the Commonwealth. But then this right of the citizen to re- quire damages or compensation there- for, is so complete and extensive that it cannot be abridged by statute. The right is reserved to the citizen by the Constitution, and there is no legislative authority to take it away or diminish it. This right, then, is warranted to plaintiffs by this deed. And if this right was released or con- veyed and so destroyed by the war- rantor prior to his warranty to plain- tiffs, it is very clear that upon the eviction under it the covenant is broken, and the warrantee or cove- nantee is entitled to recover from his warrantor. This is most certainly right and just, and nothing more. Upon this principle we charge you the plaintiffs are entitled to recover, if such a state of facts is shown.'' THE COVENANT OF WARRANTY. 297 release could not pass a right of entry to the Common- wealth, inasmuch as that right was in her from the begin- nmg.- 1 " In England," said the Court, " the feudal warranty was super- seded by a covenant of warranty, which, in turn, seems to have giv- en place in that country, but in few of the American States, to what conveyancers call the five common covenants of title ; namely, a covenant of seizin, a covenant that the grantor had a right to con- vey, a covenant for quiet enjoyment, and a covenant for further assur- ance ; for the last of which Chancel- lor Kent substitutes the covenant of warranty, still retained by us, and on which this action is brought. It has been thought by country scriveners, and even by members of the profes- sion, to contain the elements of all the rest ; but the terms of it are too specific to secure the grantee against every disturbance by those who may have a better title. It binds the grantor to defend the possession against every claimant of it by right; and it is consequently a covenant against rightful eviction. To main- tain an action for a breach of it, as may be seen in Clark v. McAnulty, 3 S. & R. 364, Paul v. Witman, 3 W. & S. 407, and in the cases col- lected in a note to 4 Kent, 471, an eviction must be laid and proved ; not necessarily by process or the application of physical force, but by the legal force of an irresistible title. There must be proof at least of an involuntary loss of the possession. "It would scarce be thought that a covenant of warranty extends to an entry by the authority of the State, in the exercise of its eminent domain. Like any other covenant, it must be restrained to what was sup- posed to be the matter in view ; and no grantor, who warrants the pos- session, dreams that he covenants against the entry of the State to make a railroad or a canal ; nor can it be a sound interpretation of the contract that would make him liable for it. An explicit covenant against all the world would bind him ; but the law is not so unreasonable as to imply it. The entry of the public agents, and the occupancy of the ground, were not a breach of the warranty. " Nor was it an eviction even of the ground taken for public use ; cer- tainly it was not a di?seisin. The entry was on the enjoyment of an easement, which was, at most, a dis- turbance that left the seizin, and a qualified use of the possession, in the grantee. If the subject-matter were, in other respects, within a covenant for quiet enjoyment, the public in- vasion of it might have been a breach of it ; but it was not an eviction. In contemplation of law, the grantee was still the owner and possessor, and might have gained an indefeasible title to the property, by the statute of limitations, against an adverse claimant by superior right. He might continue to do any act of ownership consistent with the pub- lic franchise, reserved from the be- ginning. He might lay pipes or open a quarry under the canal ; or enter on any other enjoyment of the soil, that would not interfere with the works, or impede the navigation. 298 THE COVENANT OF WARRANTY. But it may be observed of this decision, which was based upon most technical grounds, that although the Common- wealth's right of eminent domain is an incidental right par- amount to the enjoyment of all the land within her borders, 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 right to compensation which the Constitution assures to him, which, being also an incident to the land, passes with it through successive ownerships. It would, therefore, seem that any release of that right in consequence of which the land is subsequently taken by the Commonwealth without liability on her part to make compensation to the owner, has the same effect as if his vendor had granted a similar right to a stranger. Although the entry of the Com- monwealth might not have been of itself an eviction, yet when taken in connection with the prior release, it would seem that the loss of the land without compensation was " Was the antecedent release of things corporeal, and diiFered from ultimate compensation an eviction ? its s'uccessor chiefly in regard to the An eviction of what V Of a right to voucher to warranty and the recom- clalm. Strange subject of an evic- pense in value. It, therefore, cannot tion ! Having been executed before fall within the modern covenant, the conveyance, the release, if an " A part of the argument has been, eviction of any right, was an evic- that the release passed a right of en- tion of the grantor's right, for the try to the State, as well as extin- grantee could not be evicted of what guished the compensation for it. But he had not received. The construe- the releasor could not convey a right tion of the canal was subsequent to that was in the State from the begin- the conveyance ; and if there was ning, and one that could be exer- an eviction at all, it was not by the cised without his consent, on the sin- sealing of the release, but by the en- gle condition of compensating the try of the State, which, we have seen, owner. The release forestalled the was not a disseizin within the war- compensation, and it did no more. ranty. The release was, if possible, It was not a breach of a subsequent still less so. The claim to compen- and prospective covenant, not even sation being no more than the bene- against incumbrances ; and running fit of a chance, was an ideal thing ; as it did, with the land, it could not, and, though of appreciable value, it by any construction, be more than a would not have fallen within the an- clog on the enjoyment." cient warranty, which had regard to THE COVENANT OF WARRANTY. 299 but the consummation or accomplishment of the vendor's previous act, to which his covenant might reasonably be sup- posed to have extended.^ The objection that the release 1 The decision in the recent case in New York, of Murray v. Jayne, 8 Barb. S. C. 612, may be referred to as corroborative of the objection thus submitted to the decision made in Dobbins v. Brown. The defendants were commissioners under an act of tbe legislature to raise money to drain the drowned lands in Orange County, and had power ' to enter upon and occupy such lands as were necessary for the purposes of the act, upon purchase being made from the owners, or by an appraisement and payment of damages in the manner therein provided ; and in order to raise funds for the payment of such purchase-money, or damages, the commissioners had authority to levy and collect taxes for the lands, and to sell them in default of payment. By a subsequent act, they were au- thorized to open a canal or ditch, and for that purpose, to acquire the right to the necessary land by purchase or appraisement as before. Some years after, the commissioners made a parol agreement with the two tenants in common of a farm at the outlet of the drowned lands, by which the com- missioners obtained the permission to enter upon the farm and open the canarthrough it. No damages were appraised or ascertained, but it was agreed that they should be, and that the taxes which the commissioners should thereafter assess upon the farm from time to time should be de- ducted therefrom, and the balance of damages paid by the commissioners. The latter entered upon the land and continued in possession for more than twenty years, but omitted to have the damages ascertained, though re- quested to do so. The plaintifi" sub- sequently purchased the farm from the tenants in common, and the com- missioners having advertised it for sale for nonpayment of taxes, the plaintiff filed his bill for an injunc- tion, on the ground that the agree- ment was one which, had it been under seal, would have been a cove- nant running with the land, and as it was one which a court of equity would enforce, it must be regarded as having passed to the plaintiff under his deed ; and the Court held that the plaintiff was entitled to an in- junction, and that the true construc- tion of the agreement was that the commissioners were to collect no tax- es till the damages were ascertained. " It was said upon the argument," said Brown, J., who delivered the opinion, " that the damages were personal and not real property, and therefore did not pass to the plain- tiff by force of the deeds of convey- ance. This argument would have had more force if the damages had been ascertained and declared be- fore the execution of the deeds. There would then have been a fixed and definite sum due and payable from the commissioners to the owner, which might have been recovered in an action at law. The severance of the damages for the lands in respect to which they accrued would have been, in a measure, complete, and they would then have assumed the 800 THE COVENANT OF WARRANTY. would not have fallen within the ancient warranty, which had regard to things corporeal, and therefore could not fall within the modern covenant, would seem to be incorrect both in its premises and deduction, as the ancient warranty- did extend to many incorporeal hereditaments.-^ And it has been recently held that where the subject of a conveyance lay in grant and not in livery, and was therefore insuscep- tible of any other than a constructive seizin, any eviction which might happen must consequently be of the same nature as the possession.^ aspect and the attributes of personal lie on the grant of an advo-wson -with estate. The entry upon the lands -warranty, and see swpra, p. 294, note, and the opening of the canal, -were The ancient warranty was, moreover, not tortious acts creating a right of before its disuse, extended to many action -which died with the person, things -which it would not formerly or survived to the representative ; but the entry -was under an agree- ment and license to purchase, pay for and acquire the title at a future pe- riod. Until the title -was thus ac- quired, there -was no such severance of the damages from the lands as converted them into personal estate, and they consequently passed -with the deeds as part and parcel of the thing granted. . . . The agreement to exempt the lands from taxation to the extent of the amount of the dam- ages, -would, had the contract been under seal, be a covenant running ■with the land. "V-yvyan v. Arthur, 1 Barn. & Cress. 410; Vernon v. Smith, 5 Barn. & Aid. 1 ; Bally v. Wells, 3 Wilson, 25. And if the agreement be such as courts of equity •will enforce, for that purpose and to that extent it must be regarded as having passed to the plaintiff under the deed." 1 Thus it -will be found in the Year Book 43 Ed. lU. 25, and 9 Hen. VI. 56, that a -warrantia chartse will have been held to embrace. Thus Coke says " a -warrantie does not ex- tend to any lease, though it be for many thousand years, or to estates of tenant by statute staple or merchant, or elegit or any other chattel, but only to freehold or inheritance." Co. Litt. 389. But the case of Pincombe V. Rudge, Hobart, 3, shows that in the seventeenth century, -warranty -when annexed to the assignment of a leasehold -was used as a personal covenant ; supra, p. 208. 2 Lukens v. Nicholson, decided in January, 1860, in the District Court for the city and county of Philadel- phia, (17 Legal Intelligencer, 36,) ■where Hare, J., -who delivered the opinion, said : " This case turfls in substance on the question -whether the assignee of a rent reserved on a conveyance in fee, -whose estate is defeated by his own failure to put the deed of assignment on record, and the subsequent execution of a mortgage by the assignor, can re- cover compensation from the latter THE COVENANT OF WARRANTY. 801 In a subsequent case in Pennsylvania/ the owner of a furnace and grist-mill had made an ofier to the Common- by an action on a covenant of spe- cial warranty contained in tlie as- signment, witliout any other allega- tion or proof of an eviction, than that arising from a suit on the mort- gage, followed by a judgment and the sale of the rent by the sheriff undet a levari facias. It is undoubt- edly true that such a sale is not an actual dispossession, and that no one can be said to be evicted, under or- dinary circumstances, until he is ac- tually dispossessed. But it is equally true, that when dispossession is im- possible, as when the plaintiff has not been and could not be possessed, proof of an actual ouster will be dispensed with, and it will be enough to show that he has been deprived of all power or possibility of enjoyment, by a default on the part of the de- fendant, which is, in other respects, such as to amount to a breach of the warrant}'. Thus when the warrantor grants land which is at the time held adversely by third persons, under a paramount title, the grantee will not be bound to go on the land at the risk of an action, merely for the pur- pose of being turned off again, be- cause the law will not make the per- formance of a vain or impossible act, a condition precedent to the vindi- cation of a right in other respects perfect ; Rawle on Covenants for Title, 262, 266, (2d ed.) The law was so held in Curtis v. Deering, 12 IVIaine, 449, and the entry of a gran- tee under a deed duly recorded, held to be a breach of a warranty contained in a prior unrecorded mortgage, although the mortgagee had never entered, and consequently could not be actually dispossessed. This decision was cited and followed in Maeder v. The City of Caronde- let, 26 Missouri, 112, and these cases also show that a warranty could not be the less broken by an eviction re- sulting from the subsequent acts of the grantor, because the title was good when originally granted. " Applying these principles to the present case, we find that the estate warranted lying in grant, and not in livery, was insusceptible of an actual or of any other than a constructive seizin, and that any eviction which might happen, must consequently be of the same nature as the possession. And it is equally plain that the sher- iff's sale stripped the plaintiff of the whole right and title to the rent, and by taking away the right to possess, necessarily took with it the only pos- session wh'ch can exist in the case of an incorporeal hereditament. An attornment by the tenant of the land, to the purchaser, might perhaps have been requisite had the question arisen on a grant at common law, but no attornment is necessary under the statute of uses, and, besides, the sale was the act of the law, to which the law will presume that every man, and consequently the tenant, assented. It has indeed been said that it was the plaintiff''s duty to wait until some act was done or claim made adverse- ly by the purchaser, and then, and not till then, proceed on the war- ranty. But those who urge this ar- 1 Peters v. Gubb, 9 Harris, (21 Penn. State E.) 455. 26 302 THE COVENANT OF WARRANTY. wealth, that if the canal commissioners would raise the height of his dam, he would allow them a sufficient supply gument forget, that tlie sale left the plaintiff "witbout any right to the rent, or means of redress against the tenant of the land out of which the rent issued ; that any payment to him would have been a mispayment; that any suit which he might have brought, or distress which he could have levied, would have been desti- tute of legal validity, and would nec- essarily have exposed him to costs and damages. Unless, therefore, it can be said that he was bound to lie out of the rent for an indefinite pe- riod, without compensation, in attend- ance upon the pleasure of others, he was necessarily entitled to sue as soon as the sale was made, and we consequently discharge the rule to show cause why there should not be a new trial." The case of Kinney v. McCuUough, recently decided in New York, (1 Sandford's Ch. R. 370,) may be here noticed. The defendant and one Halsey, being the owners, as copart- ners, of certain valuable stores, Avhich were subject to two mortgages, the former, at the dissolution of the part- nership, sold his undivided interest to the latter, who assumed as part of the consideration, the payment of the mortgages which were exempted from the covenants for quiet enjoyment which the deed contained. The pur- chaser then executed another mort- gage to the complainant, who fore- closed it, and at the sale bought the stores himself The lien of the prior mortgages was not devested by this sale, and they were subsequently foreclosed and the property sold again while in the hands of the complain- ant, and the money brought into court for distribution, when it ap- peared that at the time of the sale of the stores by the defendant, he had agreed to assume the payment of another mortgage to one Phillipon, which they had jointly given for a debt of the firm, but which had not been then placed on record. He did not, however, pay the mortgage, but, with the intention of throwing the debt upon the stores, caused it to be recorded just before the execution of the mortgage under which the complainant pm-chased. The mort/ gagee was, therefore, entitled to pay- ment out of the surplus remaining after the two oldest mortgages had been satisfied, and this consumed the whole fund leaving nothing for the complainant, who thereupon filed a bill against the defendant for pay- ment of the amount thus lost. His right to a decree was sufficiently ob- vious, but it was objected, on behalf of the defendant, that the complain- ant had a sufficient remedj' at law upon the defendant's covenants on the sale to his late partner, the bene- fit of which had passed to the com- plainant; but the Court said, "This would have been the case unques- tionably, if Phillipon's mortgage had been foreclosed while the complain- ant remained in possession, and the complainant had been ousted there- by. But no such eviction has occur- red. The complainant was turned out by a title paramount to both, but which left to him a surplus in money, not a portion of the land. He has THE COVENANT OP WARRANTY. 303 of water to feed the canal. The commissioners, without taking any notice of this offer, erected a gate at the head of the race leading to the mill and furnace, and in spite of objection from the owner directed the water therefrom whenever the low state of water in the canal rendered this necessary. The premises were afterwards leased, with a covenant "to warrant and defend the same to the lessees against the claims, interruption or molestation of any person whomsoever, so that the lessee should suffer no loss from any defect of title of the lessor to the premises." Soon after the execution of the lease, the agents of the Common- wealth notified the lessees that unless there was a rise of water before a certain day, they would be obliged to shut off" the water from the furnace, and shortly after the gate was closed entirely. It was contended that the lessors were not liable on the covenants in the lease — that the case was less strong than that of Dobbins v. Brown, as the vendor there been evicted from that surplus by merit of these damages, haye any Phillipon's mortgage. This is not right to resort to the covenants of such a legal eviction as will sustain those prior to himself in the chain of an action at law upon the covenants title, because he had not been evicted in the conveyance to Halsey.'' from the land, but from the consider- In support of this point, however, ation money he had received at its the learned Vice-Chancellor relied sale by him. Such a result is, how- on the earlier New York cases, which ever, met by a numerous class of have been already referred to as hav- cases, which decide that each ven- ing been overruled, sujtira, p. 242,270; dor, on payment of the damages re- and if, indeed, the broad position be covered against himself, is entitled to taken that an eviction, in order to recover them back, from any of the come within the scope of a covenant previous vendors within whose cove- of warranty must be of the land it- nants the loss may be comprised ; self, it would seem to follow that if a and although these cases may per- series of conveyances should be made, haps be more properly referred tp each containing a general covenant the principle that the first covenantor of warranty, and the last purchaser has engaged not only to warrant and should be evicted by reason of a title defend the covenantee, but also his paramount to all of them, and should assigns, yet the application of the recover damages from his immediate strict rule referred to would prevent vendor, the latter would not, on pay- so obvious a course of decision. 304< THE COVENANT OF WARRANTY. had released his claim for damages, while in the present case the lessees enjoyed the premises in subordination to the rights of the Commonwealth ; ^ but the Supreme Court held that the covenant must be held to embrace all existing antagonistical claims, whether on the part of the Common- wealth or of private persons — that if the original entry of the State under the right of eminent domain had been 1 The charge of the Court below, as to this, was : " The covenant of course extended only to lawful inter- ruptions. No man is presumed to covenant against lawless ones, as the tenant can protect himself against them by actions 'of trespass, which the landlord could not sustain, he having parted with the possession. Nor would it be presumed that the landlord covenanted against any orig- inal entry by the State to make roads, take and use the water, or exercise other acts of prerogative. No man is presumed to contract against bare possibilities without ex- press words. Besides, for such in- juries the tenant has his redress by claiming damages, which it is to be presumed the public will accord and pay. If, then, the State had entered for the first time and drawn off the water after the lease was executed, we should hold that it did not come within the covenant for quiet enjoy- ment, although the same is expressed in strong and broad terms. The tenant would have to seek his re- dress by asking for damages under the internal improvement laws. But in the present case the entry had been made some thirteen or fourteen years before the dam was built, water drawn off" when required for the ca- nal, and the damage if any, was done to John Gamber, the then owner. and paid or presumed to be settled with him. The right to exclude him entirely from the use of the water had been claimed by the State agents but never exercised, had been a subject of dispute between him and them, and also with the plaintiffs after their purchase. Shippen in taking his lease would very naturally appre- hend difficulty about the use of the water, and as the defendants denied the right of the State to stop their works, it is no more than probable that they would guarantee against it. Have they done so ? We consider the words quite broad enough to cover the case and applicable to it, more especially as there does not appear to have been any other dis- puted right, no defect or appre- hended defect in the title, or pre- tence of right in any other person to interrupt the tenant in the enjoy- ment of his lease. . . If you believe these parties had in view the claim of the State to inten-upt the occu- pant in the use of the water, and made the contract with a view to that, we instruct you that the cove- nant for quiet enjoyment in the lease is broad enough to protect the ten- ant or his assignees, and render the lessors responsible for the damages sustained by reason of such interrup- tion." THE COVENANT OF WARRANTY. 305 subsequent to the date of the lease, the case of Dobbins v. Brown so much rehed on by the defendants, might have ruled the case in their favor, but that the works of the Com- monwealth having- been erected for some years prior to the date of the lease, and the right to use the water when nec- essary, claimed, and to some extent exercised, under objec- tion by the owner, who claimed that his was the better right to the exclusive use of the water, it could not be doubted that the covenant for quiet enjoyment was intended by the parties to protect against this claim on the part of the Com- monwealth.^ It will be perceived that this decision was based upon the construction to be given to the covenant under the peculiar circumstances of the case, as it cannot be doubted that as a general rule the exercise of the right of eminent domain subsequent to the execution of a conveyance or lease is no breach of the covenants for title contained therein.^ 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 seems proper to recur to the remark, which has elsewhere been made in the course of this treatise, that covenants for title should not and cannot be regulated in all, or even in most cases, by the artificial and technical rules which prop- erly govern the law of real estate. Reference may be had, therefore, not only to the intention of the parties as ex- pressed in the conveyance which contains the covenants, 1 "If there was error," said the have been inferred as matter of Court, " in submitting to the jury the law." question of the intent of the parties, 2 This was expressly decided in the defendants have no just cause the recent case in Pennsylvania, of of complaint, as, in the opinion Bailey v. Miltenberger, 7 Casey, (31 of this Court, the intent might Penn. State R.) 37. 26* SOS THE COVENANT OF WARRANTY. but also to the local practice of conveyancing itself. In those parts of this country, if any such should exist, where the refinements of English conveyancing prevail, and the covenants for title are inserted with exactness and fullness, the inference would be strong that the omission of a cove- nant for seizin or against incumbrances, was a proof that it was not within the terms of the contract that the purchaser should enjoy the peculiar benefit which such a covenant strictly confers ; and the more exactly and particularly the covenants were expressed, the more rigid would be their construction. So far, however, from such being the prac- tice of conveyancing in this country, it is rarely, if ever, the case that the covenants for title which are inserted, are ex- pressed otherwise than very briefly. So, in some of the States, long-settled usage has caused the omission of all the covenants for title, except that of warranty, which, by com- mon practice at least, is looked upon as containing all that is necessary to assure the title to the purchaser.^ Such is the case in Pennsylvania, even in the larger towns, where, except as to the form of the deed, so much of the practice of English conveyancing as is suitable to local laws prevails. The title is, in a case of any importance, sub- mitted with an abstract, or at least a brief, for the opinion of counsel, and carefully examined. Since equity jurisdiction has been to a great extent conferred upon its Courts, the law as to specific performance applies more closely, and, in general, the rules which govern the relation of vendor and purchaser, before the execution of the conveyance, are accu- rately defined, and are or can be readily understood. Yet, with all this, the covenant of warranty is, except in very rare and particular instances, the common and the only ' These remarks were quoted and recent case of Funk v. Cresswell, 5 approved by Stockton, J., in deliver- Clarke, (lovfa,) 93. ing the opinion of the Court in the THE COVENANT OF WARRANTY. 307 covenant for title which the deed contains. The same is believed to be true of many other States. Where such has become the settled practice of a State, it is suggested, with great deference, that technical rules, based ujjon a different custom of conveyancing as respects these covenants, lose to some extent their application, and to say that " the pur- chaser should have protected himself by other covenants," is to apply a hard rule in States where those other cove- nants are never employed. Nor do such decisions reform the practice, and bring into use those other covenants. It generally happens that eventually it is the course of decision, and not the usage of the community which changes, and in the mean time the position of purchasers is unenviable. That the course of decision in a State, and the practice of the community or legal profession of that State should be at variance, is a condition of things productive of great harm. It can seldom last long. The former generally yields either to legislation, or to the practical difficulties to which such a course of decision leads. It is not meant in the application of these remarks to advocate a general departure from established and technical rules as to the construction of covenants for title. On the contrary, these rules can, in most instances, be applied with entire propriety. All that it is intended to suggest is, sub- ject to correction, that where the covenant of warranty is habitually the Only covenant for title contained in convey- ances, such a construction should be given to that covenant as will rather tend to indemnify the purchaser than to pro- tect the vendor.-^ 1 This may be done -without giv- the usage of the country interprets ing to the covenant of warranty the the covenant) that he will indemnify attributes of a covenant for seizin, the purchaser against any loss conse- But it is suggested that where a ven- quent thereupon, it seems hard to dor has sold land with a defective decide that the latter may not, upon title, and covenanted (according as the hostile assertion of the adverse 808 THE COVENANT OF WARRANTY. The question whether a covenant of warranty is to be so construed relatively to the quantity of land conveyed, as to be deemed an assurance to the purchaser of the existence of that quantity, will, in many cases, depend upon the manner in which the particular deed is expressed. This subject is considered in a subsequent chapter.-' It may be here men- tioned, however, that as a general rule, unless where the enumeration of quantity is of the essence of the contract, and not matter of description merely, the covenant of warranty is not broken by a deficiency in the quantity of land con- veyed. It has been repeatedly said that " in an action on the covenant of warranty, an eviction must be averred and proved."^ As respects the proof, it has just been seen that the eviction may be either actual or constructive ; and the question then arises whether, in the pleadings, the decla- claim, quiet his title, and then be indemnified to the extent of the amount reasonably and bond fide paid for that purpose, or that in every case in which the very corpus of the land has not been the subject of the eviction, no remedy can be had upon such a covenant A branch of this subject of evic- tion is that of the purchaser's right to detain the unpaid purchase-money by reason of a defect of title. Such a right depends (except in Pennsyl- vania), upon the defect in question coming within the covenants for title he has received, and is, according to the weight of modern authority, sanc- tioned to the extent to which the purchaser would be, at that time, en- titled to damages upon the covenants. This subject is attempted to be fully considered in a subsequent part of this worli, (see Chap. XIII.) where it will be seen that although there are many cases which profess to lay down a strict rule, and to deny this right " unless there has been fraud, or an eviction,'' yet, there are few, if any, which deny to the purchaser the right to set off the amount honafide, reasonably and necessarily paid by him to buy in the paramount title, even where the only covenants are those for quiet enjoyment or of war- ranty. 1 See Chapter X. ~ Thus an assignment of the breach " that the defendant had not war- ranted and defended the premises," without more, is bad on general demurrer ; Sedgwick v. Hollenback, 7 Johns. 376. When, however, the defendant pleads only non est fac- tum, an eviction need not be shown ; Cooper V. Watson, 10 Wendell, (N. Y.) 205. THE COVENANT OF WARRANTY. 309 ration should set forth the facts intended to be relied on as constituting the eviction, or whether an eviction itself should he averred. In Pennsylvania, there have been several dicta in favor of the latter proposition. Thus, in an early case, it was said, " there can be no breach of the covenant of warranty assigned, without alleging ^n actual eviction. It is true that evidence of a paramount title, and that the war- rantee, in consequence, yielded up the possession, will sup- port such an allegation Still, however, an actual ouster must be set out." ^ So it was subsequently said, " I consider that an eviction must be alleged in all cases, although it may be supported by the proof of particular cir- cumstances ; but it will not do to state the circumstances themselves ; the averment must be according to their legal effect. For instance, an eviction might be alleged in the declaration, but on trial, may be shown by proof of an elder and better title than that which was transferred by the ven- dor, and that the vendee voluntarily, upon the demand of him who had such better title, gave up the possession of the land to him," ^ and in a later case it was observed, "the averment of an eviction is one thing, the evidence of it another."^ In a somewhat recent case in the King's Bench, how- ever, the plaintiff, in suing upon a covenant in a lease that he " should and might have, occupy and enjoy the said demised premises from the said sixth day of April for and during the term aforesaid," averred that he " had not been able to, and could not have, occupy and enjoy the said de- 1 Clark V. McAnulty, 3 Serg. & to be averred is the eviction by par- Kawle, 372. amount title — the manner of evie- 2 In Patton v. McFarlane, 3 Penn. tion is matter of evidence, and need R. 419. not be alleged." Keese y. McQuillan, 3 Paul V. Witman, 3 Watts & 7 Indiana, 450 ; and see Hannah v. Serg. 410. So, in a late case in In- Henderson, 4 Indiana, 174. diana, it was said : "The main thing 310 THE COVENANT OF WARRANTY. mised premises, &c., during the term aforesaid, in this, to wit, that he, the said plaintitf, 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 removed him the said plaintiff from his possession thereof, and kept him out . . . from thence hitherto ; by means of which," &c. The plea traversed this breach, and on the trial the evidence was that the plaintiff had never been able to obtain the possession of part of the premises, but had been kept out of them by the defendant. The Chief Baron was of opinion that a nonsuit should be entered, but finally left it to the jury whether the plaintiff had gone to the premises with a lond fide intention of taking possession, and whether the defendant had seriously expressed, and shown by his conduct, an intention that he should not have it; and a ver- dict having been found for the defendant, a rule for a new trial was discharged, the Court saying that the plaintiff should have alleged in his declaration the facts as they really existed, and that a nonsuit might properly have been or- dered.^ In one of the Pennsylvania cases just cited,^ an analogy was suggested from the rules of pleading as to the aver- 1 Hawks I'. Orton, 5 Adolph. & might have been alleged so as to Ellis, 367. " The plaintiff," said Lord make out a breach of covenant ; the Denman, " here declares in cove- statement here is shown by the evi- nant, and states, as a breach, that dence to be untrue. I think that the defendant entered upon his pos- there was no expulsion in law or in session, and expelled and removed fact, and that the Lord Chief Baron him. This is a perfectly intelligible even went out of his way in putting breach ; and other modes of breaking the case to the jury. He did so the covenant might have been stated however, indulgently to the plaintiff; with equal clearness if the plaintiff and the jury have found for the de- had thought proper to allege them, fendant. The plaintiff has no right There is no evidence of the breach to ask for a new trial." as stated. It is not necessary to say 2 Patton v. McFarlane, 3 Penu. in what mode the facts of this case 425. THE COVENANT OF WARRANTY. Sll ment in an action against the maker of a neg-otiable note, of notice to the indorser, as to which it was said to be " indis- pensably necessary to aver the demand upon the drawer and notice given of non-payment to the indorser, and this may be proved^by showing that the indorser, before the note became payable, accepted from the drawer an assignment of his estate for the purpose, inter alia., of indemnifying him against his indorsement, which, in fact, is neither a demand, nor yet notice of non-payment, but in law has the same effect." It may, however be observed of the analogy thus suggested, that although there certainly have been some decisions to the effect that under an averment of notice, evidence may be given of its dispensation or of due dili- gence,^ yet that the law has also been held the other way ; and there are many cases which decide that, under an aver- ment of notice, nothing but actual notice can be proved, and that a dispensation of it, due diligence or the like, must, if intended to be relied on, be set forth in the pleadings according to the facts. ^ The analogy, therefore, cannot be said to be entirely sus- tained, 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 it was caused by a failure to obtain possession.^ 1 Shirley v. Fellows, 9 Porter, 3 Jn Witty v. Hightower, 1 2 Smedes (Alab.) 300; Taunton Bank i>. Rich- & Marsh. 478, it was said that an ardson, 5 Piekeriug, (iMass.) 436 ; averment of " an actual ouster or Stewart u. Eden, 2 Caines, (N. Y.) eviction, or a holding out under par- 121 ; Williams v. Matthew, 3 Cowen, amount title," was necessary. In (N. Y.) 252. Day v. Chism, 10 Wheaton, 449, the 2 Burgh V. Legge, 5 Meeson & Court said, per Marshall, Ch. J., "In Welsh. 418; Carter v. Flower, 16 an action on such a covenant it is Id. 743 ; Frazier v. Harvie, 2 Littell, undoubtedly necessary to allege sub- (Ken.) 183; Hill w. Varrell, 3 Green- stantially an eviction by title para- leaf, (Me.) 233; Blakely v. Grant, 6 mount, but we do not think that any Mass. 388. formal words are prescribed with 312 THE COVENANT OF WARRANTY. Upon the subject of the measure of damages for a breach which this allegation is to be made. It is not necessary to say in terms that the plaintiff has been evicted by a title paramount to that of the defendant." In Banks v. White- head, 7 Alabama, 85, where the breach assigned was a failure to obtain the possession, it was said, " Although the strictly formal course would have been to allege an evic- tion, we feel constrained to decide that the averments here are equiva- lent to an actual ouster," and this was approved in the recent case of Reese v. McQullkin, 7 Indiana, 4,'51. In Grannis u. Clark, 8 Cowen, (N. Y.) 36, the breach was similarly laid, and held defective only " be- cause it did not state the particulars of the plaintiff's being prevented, that is, as to the person or persons who thus prevented him, and by what right," &c. (that is, whether by paramount right or not ; the expres- sion must not be construed to mean that the plaintiff must set forth the particulars of the adversary title ; see supra, p. 183). A precedent for a declaration when the breach is caused by u, failure to obtain the possession, will be found in 5 Wentworth's Pleading, 53. The following form of a decla- ration on a, covenant of warranty is given by Professor Greenleaf (1 Greenleaf's Evidence, § 244). , It will be observed that the suit is brought by the assignee of the covenantee : — ■' For that the said defendant, here- tofore, to wit, on the • day of , by his deed, by him duly executed, acknowledged and re- corded, which deed, not being in the possession, custody or control of the plaintiff, he is unable to produce in court, for a valuable consideration therein mentioned, bargained, sold and conveyed to one J. S. a certain parcel of land, (describing it,) to hold the same with the appurte- nances, to him the said J. S., and his heirs and assigns, forever ; and in and by the same, the said defendant, among other things, covenanted with the said J. S., and his heirs and as- signs, to warrant and defend the same premises to the said J. S., and his heirs and assigns forever, against the lawful claims and demands of all persons. And the said J. S. after- wards, on the same day, lawfully entered into said premises, and by virtue of said deed became lawfully seized of the same ; and being so seized, the said J. S. afterwards, to wit, on the ■ day of , by his deed, by him duly executed, ac- knowledged and recorded " — (it is, in general, necessary that these as- signments should be specially aver- red ; Williams v. Weatherbee, 1 Aik- ens, (Verm.) 233 ; see Beardsley v. Knight, 4 Vermont, 471 ; and see infra, Chapter VIII.) — " and now here by the plaintiff produced in court, for a valuable consideration therein mentioned, bargained, sold and conveyed the said premises to the plaintiff, to hold the same with the appurtenances to the plaintiff, and his heirs and assigns forever ; by force of which deed the plaintiff, afterwards and the same day, law- fully entered into the same prem- ises, and became lawfully seized thereof accordingly. But the plain- THE COVENANT OF WARRANTY. 818 of the covenants for quiet enjoyment and of warranty,^ there is a great conflict of authority and practice in the different States. In many of them, these covenants are treated as a substitute for the old warranty, upon which, in an action of tvarranUa chartce or upon voucher, the warrantee recovered of his warrantor lands whose value was computed as at the time of the warranty, and the compensation upon the mod- ern covenants is still measured by the same standard. But in other States, they are regarded as covenants of indemni- fication, whose object, therefore, is to compensate the party for his actual loss at the time of their breach. It is scarcely necessary to repeat what was the common- law rule. When the obligation of warranty was implied by tenure, the lord gave to his vassal, in case of eviction, other lands of equal value, whose measure was computed as at the time of donation.^ Nor was the rule altered by the introduction of express warranties,^ as they went no farther than the warranty whose place they supplied, and from the tiff in fact says, that the said defend- Of course the above assignment of ant has not warranted and defended the breach is adapted only to the the said jDremises to the plaintiff, as first of the classes of eviction referred by his said covenant he was bound to supra, p. 242. Another elabo- to do, but, on the contrary, the plain- rately drawn declaration will be tiff avers that one E. F., lawfully found in Carter v. Denman, 3 Za- claiming the same premises by an briskie, (N. J.) 260. In Georgia, elder and better title, afterwards, by there is a statutory form, the decla- the consideration of the Justices of ration being in the form of a petition. the Court, begun and holden Digest of 1851, p. 492 ; Act of Dec. (here describe the term, &c.,) recov- 27, 1847. ered judgment against the plaintiff l As respects this subject, there is for his seizin and possession of said no difference in principle between premises, and for his costs ; and after- these covenants, nor does it seem wards, to wit, on the day of that any has ever been taken. , under and by virtue of a ^ Godbolt, 151 ; 1 Keeves's His- writ of execution duly issued upon tory of the Common Law, 448, said judgment, the said E. E. law- supra, p. 59. fully entered into said premises, and 3 Gilbert's Tenures, 124. See thereof evicted the plaintiff, and still supra, p. 59, lawfully holds him out of the same." 27 SI 4 THE COVENANT OF WARRANTY. absence of authority at the close of the seventeenth centuiy and since that time, it may fairly be inferred that in Eng- land the introduction of the covenants now in use worked no change in this rule.^ In this country, however, the rapid advance of improve- ment and the comparative insecurity of titles gave the question importance at an early day, and it will be found discussed among the very first of our reported cases. In some States, it was held that the damages should be measured by the value of the land at the time of the con- veyance, and, in others, by its value at the time of the eviction. The first position was supported by analogy to the common law, and the danger of introducing a less sim- ple rule, and the latter by the usage of the particular prov- ince or State, and sometimes, by reference to the civil law. The cases in support of the last position, being less numer- ous, will be the first referred to. The earliest authority appears to be Horsford v. Wright, the second case reported in Connecticut,^ where Law, Ch. J., said, " The constant rule of this Court has been to ascertain damages by the value of the land at the time of the eviction, though the British rule is to give the consideration of the deed. The diversity in this respect is undoubtedly founded in the permanent worth of their lands as an old country, and the increasing worth of ours as a new country, and it is sup- posed that the purchaser goes on, improves, and makes the land better till he is evicted," and " immemorial usage in 1 It would appear from the case of case a plaintiff can recover for the Lewis V. Campbell, 8 Taunton, 728, improvements and buildings he may which was an action brought upon choose to make and erect upon the a covenant for quiet enjoyment, lands ; . . but I am of opinion that that no cases in point had been de- they cannot be recovered in this cided, since none were cited by the ease, as the declaration is insufS- counsel, and Dallas, Ch. J., said : " I cient." very much doubt whether in any 2 Kirb/s Rep. 3, decided in 1786. THE COVENANT OF WARRANTY. 315 Connecticut " was afterwards said to be the foundation of this rule, which has always been adhered to there.^ So in Vermont, " this rule of damages was established at an early day."^ In Maine, " the same principles are established." ^ In Massachusetts, the leading- case upon the subject is Gore V. Brazier,* decided in 1807, in which Parsons, Ch. J., endeavored to found the practice upon English author- ity, saying, that however convenient and proper the feudal rule might have been, yet " when lands were aliened for money, when improvements and agriculture became an im- portant object of public policy, and when the alienor might have no other lands to render a recompense in value, it be- came expedient that another remedy for the purchaser on eviction should be allowed. And it is certain that before the emigration of our ancestors, the tenant, on being law- fully ousted by a title paramount, might maintain a per- sonal action of covenant broken on a real covenant of war- ranty."^ The authorities, however, cited in support of these remarks," give no different rule of damages from that which existed before at the common law. The decision in Massachusetts, was, however, said to be " conformable to principles of law applied to personal covenants broken, to the ancient usages of the State, and the decision of our predecessors supported by the practice of the legislature," ^ and its authority has been consistently followed in that State.* t Sterling v. Peet, 14 Connect. ^ But see supra, p. 212. 245. S 1 Brownlow, 21 ; 2 Id. 164. 2 Drury v. Shumway, D. Chip- ' Some of these decisions are re- man's Rep. Ill ; Park v. Bates, 12 ferred to in the opinion, but are not Vermont, 387. to be found reported. 3 Cushman v. Blanchard, 2 Green- 8 Caswell v. Wendell, 4 Mass. 108 ; leaf, 268 ; Swett v. Patrick, 12 Maine, Bigelow v. Jones, Id. 512 ; (and, not- 1 ; Hardy v. Nelson, 27 Id. 525. withstanding an apparent decision to 1 3 Mass. 523. the contrary, in Sumner v. Williams, 316 THE COVENANT OF WARRANTY. In Louisiana, the principle of the civil law is of course adopted.^ 8 Id. 221, by) Norton v. Babcock, 2 Metcalf, 516, White v. Whitney, 3 Id. 89. In Sumner v. "Williams the action was on the covenants for seizin, of right to convey, against incumbrances, and of war- ranty. The Court refused to assess the damages by the value of the land at the time of eviction, as contended for by the plaintiffs, but at the same time treated the case as if brought upon " covenants broken at the time of the execution of the deed ; " though, immediately after, it is said, " More- over, if the action had been com- menced on covenants which respect the title, there is no doubt the meas- ure of damages would have been the purchase-money with interest." 1 Bissell V. Erwin, 13 Louis. 148. " The District Court erred," said Kost, J., who delivered the opinion, " in rejecting the evidence oifered by the plaintiffs to prove the in- crease in value of the property, at the time of eviction. In doing so, it assumed that no part of that increase could be taken into consideration, in assessing damages on a warranty. This is an error into which many members of the bar have fallen, and it arises from some inaccuracies in the printing of the opinion of this Court, in the case of Morris v. Abat et al., 9 Louis. Eep. 552. The Court there held that a bond Jide vendor is not bound to indemnify his vendee for profits not made, and that to make him answerable for profits not made and for the augmentation of the value of the thing sold, at the time of the eviction, beyond the price of the original sale, would be to re- store and carry into effect the entire provisions of the article of the Code of 1808, which the legislature in- tended to suppress and repeal. But the Court never had a doubt that the damages, intended by the law, in cases of eviction, are something over and above the original price, nor did it mean to say that such increase in value as the parties could reasonably have anticipated at the time of the contract, was a profit not made when the eviction took place. It is,'Dn the contrarj', a profit made by the buyer, propter rem ipsam, and ought in all cases, to form a part of the damages. The article of the old Code, referred to in the former decision, provided that the increase of value was in all cases to be paid to the person evict- ed ; and it was generally believed, justly or not we do not pretend to say, that there was no exception to that rule, however enormous the in- crease might be, and from whatever causes it arose. Such is the inter- pretation given by TouUier to a simi- lar provision in the French Code. TouUier on Obligations. " The jurisconsults who prepared the Code of 1825, have adopted Toullier's opinion, and the article was suppressed at their recommen- dation, on account of the ruinous consequences to which it might lead. The law now stands here as it did in France before the adoption of the Code, and there the increased value of the property invariably formed part of the damages assessed on a warranty, but such increase only as THE COVENANT OF WARRANTY. 317 The cases which support the opposite rule are much more numerous. the parties could have in contempla- tion at the time of the contract, ought to be taken into account, and the vendor should not be made to pay the increase which results from un- foreseen events, or from accidental or transient causes. Dumoulin, de eo quod, interest. No. 57, and fol- lowing. Pothier on Obligations, No. 104 ; Ibid., Vente, No. 133 ; 6 Toul- lier on Obligations, 285 ; Troplong de la Veute, No. 506." The Revised Code of 1838, which, as to this, has adopted the provisions of the Code of 1825, is as follows : — • Art. 2481. — Even in case of stip- ulation of no warranty, the seller, in case of eviction, is liable to a restitu- tion of the price, unless the buyer was aware at the time of the sale of the danger of the eviction and pur- chased at his peril and risk. Art. , 2482. — When there is a promise of warranty or when no stipulation was made on that subject, if the buyer be evicted he has a right to claim against the seller, 1. The restitution of the price ; 2. That of the fruits of revenues, when he is obliged to return them to the owner who evicts him ; 3. All the costs occasioned either by the suit of warranty on the part of the buyer, or by that brought by the original plaintiflf ; 4. In fine, the damages, when he has sufiered any, besides the price that he has paid. Art. 2483. — When, at the time of eviction, the thing sold has lost any of its value, or is considerably impaired, either through the neg- 27 « lect of the buyer, or by any provi- dential acts, or unforeseen accidents, the seller is still bound to the res- titution of the full price. Art. 2484. — If, however, the thing sold was impaired by the buy- er, and he has reaped some benefit therefrom, the seller has a right to retain on the price the amount to which such damages may be esti- mated in favor of the owner who evicts him. Art. 2485. — The seller is bound to reimburse, or cause to be reim- bursed to the buyer, by the person who evicts him, all useful improve- ments made by him on the premises. Art. 2486. — If the seller know- ingly and dishonestly has sold the property of another person, he shall be obliged to reimburse to .the buyer all expenses, even those of the em- bellishments of luxury that the buyer has been at in improving the prem- ises. Art. 2487. — If only a part of the thing sold be evicted, and it be of such consequence relatively to the whole that the buyer would not have purchased it without the part which is evicted, he may have the sale can- celled. Art. 2488. — Not only eviction from part of the thing sold, but evic- tion from that which proceeds from it, is included in the warranty. Such would be the eviction from the child of a slave, after the death of the mother. Art. 2489. — But if the thing sold be succession rights, the eviction which the buyer might suffer from 318 THE COVENANT OF WARRANTY. In South Carolina, the law was at first unsettled. Some early cases adopted the rule which has just been referred to,^ but this was soon after departed from, and the meas- ure of damages limited by the consideration-money.^ By a statute, moreover, it is declared,^ that, " in any action or suit at law or in equity for a reimbursement or damages upon covenant or otherwise, the true measure of damages any particular thing found among the property of the succession, does not give rise to the warranty, be- cause in this case the thing sold is only the succession right, which in- cludes only such things as belong really to the succession. Akt. 2490. — If in case of evic- tion of a part of the thing, the sale is not cancelled, the value of the evic- ted part is to be reimbursed to the buyer according to its estimate, pro- portionably to the total price of the sale." The rule of the civil law (which, in its endeavor to afibrd in every case a full compensation to the party injured, necessarily was in many in- stances arbitrary and unsettled, and which as to warranty recognized no distinction between real and personal property,) may be found in the Digest, lib. xix. tit. 1, § 45 ; " lUud expedi- tius videbatur ; si mihi alienam aream vendideris, et in eam ego £edifii.avero. atque ita eam dominus evincit : nam, quia possum petentem (dominum) nisi impensam asdificiorum solvat doli mali exceptione summovere, magis est ut ea res ad periculum venditoris non pertlueat. Quod et in servo dicendum est, si in servitu- tem, non in libertatem evinceretur, ut dominus mercedes et impensas priEstare debeat. Quod si emptor non possideat asdificium vel servum, ex empto habebit actionem ; in om- nibus tamen his casibus, si sciens quis alienum vendiderit, omnimodo teneri debet." See also 1 Domat, part 1, book 1, tit. 2, §§ 15, 16, 17; 1 Cushing's Dom. 233. For the Scotch law, see 1 Erskine's Law of Scotland, book 2, tit. 3, § 13. " Absolute warrandice in case of eviction affords an action to the dis- ponee against the disponor, for mak- ing up to him all that he shall have suffered through the defect of the right, and not simply for bis indem- nification by the dispouor's return- ing the price to him," &c. Also Dic- tionary of Scotch Law, tit. " War- randice." See passim, Sedgwick on Damages, Ch. VI. 1 Liber v. Parsons, 1 Bay, (S. Car.) 19 ; Guerard v. Rivers, Id. 265 ; and see Witherspoon v. Ander- son's Exrs. 3 Desaussure, 245*. 2 See an elaborate opinion of Bre- vard, J., in Furman v. Elmore, cited in the note to Mackey v. Collins, 2 Nott & McCord, 189 ; as also Ken- ning V. Withers, 3 Brevard, 458 ; Wallace v. Talbot, 1 McCord, 468 ; Ware v. Weathnall, 2 Id. 413 ; Earle V. Middleton, Cheves's Rep. 127 ; and Piersou v. Davis, 1 McMullen, 37. 3 Stat. 17th December, 1824, § 4. THE COVENANT OF WARRANTY. SI 9 shall be the amount of the purchase-money at the time of the alienation with legal interest," but it has been said ^ that the rule of law was settled long before its enactment. So, in New Jersey, a decision at Nisi Prius,^ allowed the plaintiff to give evidence of his improvements, in order to increase his damages, but in subsequent cases ^ every allow- ance for improvements has been rejected. So, in Virginia, there was an early case* to the same effect as those in New England, but it was subsequently departed from.^ In Stout v. Jackson,^ the subject was elaborately examined, and it was held that the safer rule of damages was to measure them by the value at the time of the conveyance, and this was considered as finally settled by the subsequent case of Threlkeld v. Fitzhugh.' So, in Tennessee, an early case ^ left this question unde- termined ; but by recent authorities ' it may be said to be now settled. The rule that the measure of damages on the covenants for quiet enjoyment and of warranty is limited by the con- sideration money and interest, may be said to be now settled law in the States of New Hampshire,^" New York,^^ New 1 Earle v. Middleton, Cheves's Rep. 9 Elliot xi. Thompson, 4 Humpli- 127. ries, 101 ; Shaw v. Wilkins, 8 Id. 2 Hulse V. White, Coxe's Kep. 647. 173. 10 InLoomis y. Bedel,ll N. Hamp. 3 Stewart v. Drake, 4 Halsted, 87, the rule was considered to be as 142 ; Holmes v. Sinnickson, 2 Green, yet unsettled, and in Wilson v. Coch- 313 ; Morris v. Kowan, 2 Harrison, ran, 14 Id. 399, the Court said, "We 304 ; and see supra, p. 103. are not aware of any decision which 4 Mills V. Bell, 3 Call, 277. settles the matter authoritatively in 5 Nelson v. Matthews, 2 Hen. & this State." But in the more recent Munf. 164. case of Willson v. Willson, 5 Foster, 6 2 Randolph, 132; Coalter, J., 236, the subject was carefully con- dissented, sidered, and the damages fixed by the 7 2 Leigh, 463. See also Jackson consideration-money. V. Turner, 5 Leigh, 119; Hafi'ert's H Bennett v. Jenkins, 13 Johns. Heirs V. Burchetts, 11 Id. 88. 50 ; Kelly v. The Dutch Church of 8 May V. Wrights, 1 Overton, 385. Schenectady, 2 Hill, 116 ; Kinney v. 820 THE COVENANT OF WARRANTY. Jersey, Pennsylvania,^ Virginia, Ohio,'' North Carolina,^ Watts, 14 V\''endell, 40; Peters v. McKeon, 4 Denio, 550. Mr. Sedg- wick (Damages, 168,) mentions that the revisers of the New York stat- utes proposed to fix the measure of damages by the value at the time of eviction, with interest, costs, &c., but that the provision was not finally adopted. 1 Brown v. Dickerson, 2 Jones, 372; Bender v. Fromberger, 4 Dallas, 441 ; King v. Pyle, 8 Serg. & Rawle, 166 ; McClure v. Gamble, 3 Casey, (27 Penn. State R.) 288; Cox v. Henry, 8 Casey, (32 Penn. State R.) 19. See an elaborate argument in McClowry v. Croghan, 1 Grant, (Penn.) 307, as to the measm-e of damages for a breach of contract to lease, which the Court held could not be measured by the value of the contract, but must be limited to the consideration agreed to be paid. 2 King V. Kerr, 5 Ohio, 154 ; Foote V. Burnett, 10 Id. 317 ; Clark v. Parr, 14 Id. 118. In this State a statute, passed 10th March, 1831, called " The occupying claimant act," provides that occupying claimants, being in quiet possession of lands under title from some public office, or deed duly authenticated and recorded, or under a tax title, or sale by order of Court, &c., shall not be evicted or turned out of possession by any person who shall set up and prove an adverse and better title, until the occupying claimant shall be paid the value of all lasting and permanent improve- ments made, &c. ; unless the occupy- ing claimant shall refuse to pay the value of the land without the im- provements, if demanded by the suc- cessful claimant. Statutes of Ohio, 607, edition of 1841. There were former statutes on this subject which this supplied. If improvements are to be paid for at all, it certainly seems most rational that the expense should be borne by the party who reaps their benefit, and this rule may have the effect of forcing the real owner to a speedy assertion and proof of his superior title, since few men would be willing to pay for improvements which they did not themselves direct. The rule in equity, where its aid is invoked by the real owner, is in ac- cordance with the principle of this statute, but is not entirely free from inconvenience in its application. See Tomlinson v. Smith, Finch, 378; Bright V. Boyd, 1 Story, 478,494; 2 Story's Eq. Jur. § 799 a, § 779 b, § 1237 to § 1239 ; Green v. Biddle, 8 VS'heaton, 77 ; Patrick v. Marshalls, 2 Bibb, (Ken.) 45 ; Craig v. Martin, 3 J. J. Marshall, (Ken.) 55 ; Morton V. Ridgway, Id. 257 ; Barlow v. Bell, 1 A. K. Marshall, (Ken.) 246; Grimes v. Shrieve, 6 Monroe, (Ken.) 557; Richardson v. McKinson, Litt. Sel. Ca. (Ken.) 320 ; Moore v. Cable, 1 Johns. Ch. 385 ; Green v. Winter, Id. 26 ; Putnam v. Ritchie, 6 Paige, (N. Y.) 390. For these authorities I am indebted to the note to page 1029 of Mr. Perkins's edition of Sugden on Vendors.) It was once said at the bar of the Irish Court of Chancery to be " a common equity to improve the right owner out of the possession of his estate." 3 Philips V. Smith, 1 Car. Law Ee- pos. 475 ; Williams v. Beeman, 2 Devereux, 483 ; Nesbit v. Brown, 1 Devereux, Ch. 30. This case went so far in support of the principle, that THE COVENANT OF WARRANTY. 321 South Carolina, Georgia/ Kentucky,^ Indiana,^ Tennessee, Arkansas,^ Missouri,^ Iowa,® and Wisconsin ; ^ and such a rule has also been adopted by the Supreme Court of the United States.® Some of the reasons which support these authorities have already been given in treating of the measure of damages on a breach of the covenant for seizin, on which, as we have seen, it is conclusively settled in every State in the Union in which the subject has been discussed, that the damages are to be measured by the value of the land at the time of its alienation, which is established prima facie by the consideration named in the conveyance. We may then inquire why, if this rule be so generally and rigidly adhered to as to one of the covenants for title, has a differ- ent one been anywhere established as to another ; since all the arguments drawn from the civil law in favor of recom- on an agreement that in case of evic- tion the covenantee should recover twice the consideration-money and all costs, the Court held this a penalty, and that only the purchase-money could be recovered. 1 Davis V. Smith, 5 Georgia, 285, where is an elaborate opinion by Nesbit, J. In Martin v. Atkinson, 7 Georgia, the contract was execu- tory as to one of the lots, a " bond for titles " only having been given. There were also express representa- tions made by the vendor that he would pay for improvements. 2 Strode's Heirs v. Cox's Heirs, 2 Bibb, 279 ; Booker v. Bell, 3 Id. 175 ; Hanson v. Buckner's Executor, 4 Dana, 453 ; Pence w. Duval, 9 B. Monroe, 49. 3 Reese v. McQuilkin, 7 Indiana, 450. 4 Logan V. Moulder, 1 Pike, 323. 5 Dickson v. Desire, 23 Missouri, 166 ; Young v. Matthew, Id. 437. 6 Stewart v. Noble, 1 G. Greene, 28 ; Swafford v. Whipple, 3 Id. 263. 7 Blossom V. Knox, 3 Chandler, 295. 8 Hopkins v. Lee, 6 Wheaton, 118. There are many other authorities cited in 2 Greenleaf's Evidence, § 269, 4 Kent's Commentaries, 471, and Sedgwick on Damages, 175, as supporting this position ; but many of these (as well as some cited in Davis V. Smith, 5 Georgia, 274,) are not based upon covenants for quiet en- joyment or of warranty, but upon the covenant for seizin, respecting which there has not been for many years the least conflict of authority in the United States as to the measure of damages. Some of the authorities cited in Davis v. Smith, are, ijiore- over, cases of executory contracts. 822 THE COVENANT OF WARRANTY. pensiiig an innocent party for improvements made upon the land which he had supposed was his, apply with equal force to both 1 The only answer to this is a technical one. It is said that the damages are to be estimated by the value of the land at the time of the breach of the covenant. The covenant for seizin is broken as soon as it is made — that for quiet enjoyment or of warranty is not broken until evic- tion ; hence, it is said, the difference of the rule. There are many reasons why this should be an unsatis- factory answer. In the first place, technically speaking, the covenants are no more than an expression of the inten- tion of the parties, and, within certain well-defined rules, are to be construed according to this intention. It is very evident that the vendor when making them never dreams of such an enlarged liability by reason of his purchaser's improvements ; and, on the other hand, the latter takes the title for what it is worth at the time; he makes, by his contract, the purchase-money the measure of the value of the title, and takes security by means of covenants, in that amount and no more.^ If then we turn to what some of the decisions call the equitable view of the case, the anom- aly seems striking. It is hard, they say, that a purchaser, acting in good faith, should lose the valuable improvements wherewith his honest labor has enriched the land. This is indeed true, but it affords no reason why a vendor, acting also in good faith, should pay for them. Here are three parties, all acting bond fide. The vendor, with the honest belief that an estate is his, sells it to a purchaser, who, with the same conviction, improves it and enhances its value, perhaps tenfold. The real owner, immediately on discover- ing his title, sues for and recovers his estate. How shall the profit and loss be adjusted"? By taking, say those de- cisions, from the vendor ten times the consideration-money 1 Kinney v. Watts, 14 Wendell, (N. Y.) 41. THE COVENANT OF WARRANTY. 323 he received, paying it to the purchaser, who will thereby be put in the same position he was in before, and letting the real owner retain and reap the benefit of all the improved value of the estate.'' It is difficult to perceive the equity of this rule, and courts of equity have not followed it. It is a familiar principle in equity that if the real owner of an estate invoke its aid for the recovery of the estate from one who, acting in good faith, has put improvements upon it, that aid shall be given to him only upon the terms that he will make due compensation to such innocent person to the extent of the benefits which will be received from those improvements, since the party who seeks equity must first be willing to do what is equitable.^ There is another light in which this matter may be viewed. The cases referred to speak always of improve- ments and increased value of the property. But after a certain advance of civilization, property does not always increase. In the larger cities, streets that were at one time the most desirable, either for business or pleasure, yield 1 These remarks were approved pays for the improvement, and the by Woodward, J., in delivering the owner alone profits by the transac- opinion of the Court in the very tion. Now there may be no mata_/frfes recent case in Pennsylvania of Hert- in any one of the parties, and the case zog V. Hertzog (MSS. Jan.' 3, 1860). supposed is not an extreme one. It The following remarks were con- will happen where the parties act in tained in the opinion delivered in the good faith, and the owner happens case of Willson v. Willson, 5 Foster, for a time to be ignorant of his legal (N. H.) 236, about the same time as rights. The other rule which makes the text above was first written : the consideration paid the measure " Let us suppose that after a sale of damages, has at least the recom- the land increases in value, either by mendation of dividing the loss be- a rise in its price or by the improve- tween the buyer and the seller ; for ments made upon it by the pur- the seller loses the consideration, and chaser, a third person recovers the the buyer loses the value of the im- land by a paramount title, and the provements." buyer sues the seller on the covenant s Story's Eq. Jurisp. §§ 799, 1237, in his deed. He recovers the value &o.; Sugden on Vendors, c. 22, sects. of the land at the time of the evic- 51, 52, 53, &c. See the remarks in tion. He loses nothing, the seller Davis u. Smith, 5 , Georgia, 2 74. S£4i THE COVENANT OF WARRANTY. their attractions in those respects to others, and real estate there depreciates in value ; while in the country, the tide of emigration is not unfrequently capricious and not to be depended upon. Improvements of the most lasting and permanent character may sometimes be more than counter- balanced by depreciation from other causes ; or, what is a much stronger case, the purchaser's own neglect or care- lessness may have reduced a flourishing farm to a compara- tive wilderness.-' Suppose the purchaser to have received a covenant for seizin and one for quiet enjoyment. He can sue upon either, or he is allowed, it is said,^ if he sue upon both, to have judgment entered upon either. If the prop- erty is less valuable than when he purchased it, he elects to enter judgment upon the covenant for seizin and receives the consideration-money, which is far more than the prop- erty is then worth. If, however, it has increased in value, judgment is entered on the covenant for quiet enjoyment or of warranty. The impossibility of adapting laws to suit all emergen- cies has been lamented by jurists of every age and country, and it is obvious that the common-law rule as to the measure of damages on these covenants will often afford an imper- fect remedy. Still it is a certain remedy. The rules of the civil law have been felt to be arbitrary and in many instances conflicting ; and as Chancellor Kent has well remarked, " On a subject of such general concern and of such momentary interest as the usual covenants in a con- veyance of land, the standard for the computation of dam- ages (whatever that standard may be), ought, at least, to be 1 By the Louisiana Code, however, by any providential acts or unfore- " When at the time of eviction, the seen accidents, the seller is still bound thing sold has lost any of its value to the restitution of the full price." or is considerably impaired, either Art. 2483. Supra, p. 317. through the neglect of the buyer or ^ Sterling v. Peet, 14 Connect. 245. THE COVENANT OF WARRANTY. S25 certain and notorious. The seller and the purchaser are equally interested in having the rule fixed.^ But the rule of the common law is capable of being mod- ified by circumstances in a court of law, or by a court of equity. If the vendor has made use of fraud or conceal- ment, an action on the case in the nature of a writ of deceit may restore to the purchaser the value of all he has lost.^ If the purchaser had, with knowledge of the defect, gone on with his improvements, his claim for their allowance will seem to rest upon less strong grounds than if he were ignorant, notwithstanding he has taken the covenants for his protection against the defect. And if the real owner has lain by and seen these improvements go on without asserting his claim to the estate, if it be doubtful whether this can, in a court of law, be set up as an equitable' defence to an action for th§ mesne profits, it is very certain that it would be recognized in a court of equity.^ If there is any class of cases in which an allowance for improvements could properly be made, it would seem to be where the land is leased with building covenants, or where it is sold in fee, reserving to the vendor an annual ground rent which represents the value of the land, and the pur- chaser covenants that he will, for the purpose of securing to the vendor the rent so reserved, erect certain stipulated im- provements upon the land conveyed.* In such cases, the improvement to be erected being a thing within the mean- ing of the parties and one of the inducements to the con- tract, it would seem that if the land thus improved were subsequently lost by reason of a defect of title or incum- 1 Pitcher v. Livingston, 4 Johns. Coll. Exoh. 427 ; Bright v. Boyd, 1 21. Story's R. 478-493. 2 Supra, p. 64 ; Lee v. Dean, 3 * As is the case in many parts Wharton, 316. of Pennsylvania, particularly in the 3 Green v. Biddle, 8 Wheaton, 77 ; cities of Philadelphia, Lancaster and Lord Cawdor v. Lewis, 1 Young & Pittsburg. 28 8B6 THE COVENANT OF WARRANTY. brance created by the vendor, the damages should not be hmited by the consideration,^ but might with propriety be increased by the value of the improvements thus made, and if there could be any doubt as to the liability of the vendor to this extent in case the defect or incumbrance were not created by himself, although within the covenants he might have given, there would seem to be none where the loss was the consequence of his own act. There may be a distinction, which, although it has been called "a nice and speculative one,"^ has been repeatedly applied to the somewhat analogous rule of damages upon admeasurement of a writ of dower, and this is between a rise in value owing to improvements made by the pur- chaser, and an increase from other and adventitious cir- cumstances. By the common law, as stated by Coke,^ it seems that the wife was entitled to admeasurement of dower as against the heir, according to the value of the land at the time of the dower being assigned to her, whether that value was greater or less than " in the time of the husband," and whether occasioned by improvements or not. But as re- spects a purchaser, the rule was different ; and we find in Mr. Hargrave's note, that " if feoffee improve by buildings, yet dower shall be as it was in the seizin of the husband."* 1 The consideration in such case not bound to warrant except accord- being merely tlie rent reserved, the ing to 'the value as it was at the time loss of the land by paramount title of the feoffment, and so the wife would would be, of course, a suspension of recover more against the feoffee than the rent, as in the case of landlord he could recover in value, which is and tenant. not reasonable." The cases cited 2 Pitcher V. Livingston, 4 Johns. 1. from the Year Books appear to sus- 3 Co. Litt. 32 a. tain this distinction, though not for 4 Year Book, Mich. 17 Hen. m. the reason given by Lord Hale. The (cited Fitz. Ab. Dower, 192) ; Pasch. cases are these : " E., who was the 31 Ed. I. (cited Fitz. Ab. Voucher, wife of R., demands one third part of 288) ; for which this reason is quoted three acres of land with the appur- fromthe Hale MSS.: "For the heir is tonances in E., as her dower, against THE COVENANT OF WARRANTY. 3^7 In America, a further distinction is taken in many of the States as regards the purchaser ; and though in none of them is the wife allowed to receive any advantage by rea- son of improvements, yet there are many cases which give her the benefit of the increase in value exclusive of im- provements, such as would arise from improvements near the property, or the general prosperity of that section of country. The leading case in support of this doctrine may be said to be Thompson v. Morrow,^ where the land had received a twofold increase of value, first by reason of the purchaser's improvements, and secondly, by the rapid ad- vance of the city of Pittsburg. The case was twice elab- orately argued, and Tilghman, Ch. J., who delivered the opinion of the Court, after premising that dower was a claim founded in law and favored by courts both of law and equity, referred to the cases cited by Mr. Hargrave from W. And W. comes and says that he bought the land of her husband naked and unbuilt upon, and he built upon it; and he willingly allows to her her third part, saving the build- ings to himself. And, therefore, she had her seizin, saving the said W. the houses built by him," &c. Mich. .17 Hen. III. " Dower, and demand of the third part of a mill, and the tenant vouches, and the vouchee comes and demands what he had to bind him, and the tenant shows a charter conveying a certain place, upon which the vouchee demands judgment if he ought to warrant ; the tenant says, that after the gift he built the mill ; judgment if of such he ought to be warranted ; and the case was, that in the seizin of the husband the place was but a vacant place. Herle : He might have abated the writ. Hingham : You ought to have discovered the matter when you vouched, and it was not done, for which award," &o. Pasoh. 31 Ed. I. See also Perkins, Dower, 328. ' 5 Serg. & Eawle, 289. It is true that Parsons, Ch. J., had, in the prior case in Massachusetts, of Gore V. Brazier, 3 Mass. 523, used the fol- lowing language : " If the husband during coverture had aliened real estate in a commercial town, and at his death the rents are trebled from causes unconnected with any im- provement in the estate, and the widow should then sue for her dower, perhaps it might be difficult for the purchaser to maintain that one ninth only, and not one third, should be assigned to her ;" but this was intro- duced for the sake of illustration merely, and did not form part of the case. 328 THE COVENANT OF WARRANTY. the Year Books,^ and observed that such of them as limited the wife to the value of the land at the time of its aliena- tion were all cases where the purchaser had made improve- ments, and then remarked: " I have found no adjudged case in the Year Books confining the widow to the value at the time of the alienation by her husband, where the question did not arise on improvements made after the alienation. In our own State, it does not appear that the point now in question has been decided, though I have certainly consid- ered the general understanding to be, that the widow should have the advantage of all increase of value not arising from improvements made after the alienation. Having considered all the authorities which bear upon this question, I feel my- self at liberty to decide according to what appears to me to be the reason and the justice of the case, which is, that the widow shall take no advantage of improvements of any kind made by the purchaser, but throwing those out of the ques- tion, she shall be endowed according to the value at the time her dower shall be assigned to her." The distinction thus taken has not only been adhered to in Pennsylvania,^ but has been followed almost wherever it has been noticed.^ 1 Supra, note 4 to p. 326. Dunseth v. The Bank of the United 2 In the subsequent cases of Ben- States, 6 Ohio, 76. In New York, ner v. Evans, 3 Penn. R. 456 ; and the cases of Dorchester v. Coventry, Shirtz V. Shirtz, 5 Watts, 258. 11 Johns. 510, and Shaw v. White, 3 In Massachusetts, in the case of 13 Id. 179, were decided before Powell V. The Monson and Brimfield Thompson v. Morrow, and Chancel- Manufacturing Co. 3 Mason, 365, lor Kent, though leaving the point will be found an elaborate opinion of undecided in Hale v. James, 6 Johns. Judge Story, fully adopting the rule Ch. 258, has said in his Commen- in Thompson u. Morrow, which has taries, " The better and more rea- also been sustained in the States of sonable American doctrine upon this Maine, Delaware, Indiana, Kentucky subject I apprehend to be, that the and Ohio ;Misheri;.Misher, 15 Maine, improved value of the land from 372; Greer D.'Tenant, 2 Harrington, which the widow is to be excluded (Del.) 386; Smith and Wife v. Addle- in the assignment of dower, as against man, 5 Blackford, (Ind.) 406 ; Tay- a purchaser of her husband, is that lor t;. Brodrick, 1 Dana, (Ken.) 348 ; which has arisen from the actual la- THE COVENANT OF WARRANTY, 829 In considering the reason of the distinction thus taken between an increased value arising from improvements, and bor and money of the owner, and not from that which has arisen from ex- trinsic or general causes." 4 Com". 68. This language, however, was not fully concurred with in Walker V. Schuyler, 10 Wendell, 485, Sav- age, Ch. J., saying : " Whether the Chancellor is correct or not in this conclusion, I am not to inquire. It is sufficient for my purpose that in this State the widow's rights have been frequently adjudicated under a stat- ute like the present statute (which had formerly been held in Hum- phrey V. Phiuney, 2 Johns. 484, not to establish a rule different from that of the common law), and we are not at liberty to depart from the con- struction which has been given to it." This construction, it should be ob- served, was given, as has been above stated, before the case of Thompson V. Morrow was decided. In Virginia, though the point was strongly pressed in the argument of Tod v. Baylor, 4 Leigh, 509, the Court were unani- mously of opinion that " this doctrine seems to rest on ground similar to that of the recovery of land against the vendor on eviction, which on great consideration we have fixed at the purchase-money with interest, in Stout V. Jackson, and Threlkeld v. Fitzhugh." See supra, p. 319. Mr. Sedgwick, in his work on the " Measure of Damages," says (p. 132), that as to the point of admeas- urement of dower, " some perplexity exists, and the greatest authorities of American law, Chancellor Kent and Judge Story, are divided," since, he 28* remarks, " the latter holds that the widow shall have the benefit of im- provements made by the heir, but not those made by the purchaser ; " while, " on the other hand, the for- mer declares it to be the ancient and settled rule of the common law that the widow takes her dower according to the value of the land at the time of its alienation, and not according to its subsequent or improved value, though he assented to the right of the dowress to be allowed for in- creased value arising from extrinsic or general causes." On examina- tion, however, it may be doubted whether there is any conflict of au- thority as to the rule itself Each cites the opinion of the other with approbation, and the only difference of opinion seems to be as to its source. Judge Story, in Powell v. The Man- ufacturing Co., after reviewing and approving the cases which deny to the widow the value of improvements made by a purchaser, comes to the case of Hale v. James, decided by Chancellor Kent, and says, " That learned Judge went there again elab- orately into the doctrine, and adhered to the rule already laid down, viz., the value of the land at the time of the alienation, acting upon it as a clear rule of the common law." And it is here (as to the source of the rule, and not its correctness) that the difference of opinion exists. " With the most profound respect for so great a Judge, I must be permitted to doubt if there be any such doctrine in the common law," continues Judge 330 THE COVENANT OF WARRANTY. one owing to extrinsic circumstances, in its application to the subject of damages on the covenants for title, we find that Thompson v. Morrow, which is the leading case, gives no other reason than that because dower is favored both by courts of law and equity, " it would be hard indeed upon the widow if she was precluded from taking her share of the gradually increasing prosperity of the country ; " and the learned Chief Justice finding the cases in the Year Books all to turn upon improvements, " 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 in the law in favor of such a particular class, it may be remarked, that, in strictness of law, what is hardship to a widow is hardship to a purchaser ; and there seems no rea- son why an evicted purchaser should not equally recover the value to which the generally increasing prosperity of the country has raised the estate he has lost. It might be urged that although the rule is a just one which refuses to burden the warrantor with the value of improvements, as they are the purchaser's own act, yet that as respects in- creased value from other causes, the principles that prevail Story, who then remarks that the rule, its reason or its application, but quotation from Perkins and the Hale merely as to its .source ; one learned MSS. were both susceptible of mis- Judge being of opinion that it is de- interpretation. In defence of him- rived from the common law, and the self, Chancellor Kent, in a note to the other that the common-law authori- 4th Com. p. 68, says : " I am rather ties do not recognize it. From the of the opinion that they (the au- quotations from the Year Books just thorities) do warrant the doctrine to cited, it would appear that they cer- the extent the Chancellor meant to tainly are in harmony with our own go, viz., that the widow was not to be cases denying to the widow any in- benefited by improvements made by crease in case of an alienation, aind the alienee. That position does not we" have the authority of Coke for seem to be denied," &c. There is saying that in case of a descent the then no conflict of authority as to the rule was otherwise ; Co. Litt. 32 a. THE COVENANT OF WARRANTY. 331 in other cases of contract should, if possible, be applied, and as in most instances the value of real estate consists in its individuality, a purchaser should, as nearly as possible, be placed in such a position as to enable him to go into the market and supply his loss. There would be, however, one practical difficulty in the way of allowing for increased value which would occur in many cases, viz., that if improve- ments are to be excluded from the measure of damages, while increase of value from other causes is to be included, it would be often difficult to distinguish between these, since improvements on one place are frequently the cause of im- provements on others in the neighborhood, and it would be difficult to say, after the lapse of years, whether the rise in value was caused by the improvements in the vicinity, or by those on the estate itself ; and Story, J., even while recognizing the distinction in the case of the widow's dower, admits that " for practical purposes it is impossible to make any distinction between the value of the improvements ; between improvements which operate on a portion of the land and those which operate on the whole." ^ It must also be distinctly observed, that although the cases upon covenants for title do not seem to refer particu- larly to this distinction, yet their decision has almost neces- sarily denied its application to that subject. But the same remark that has been made, as to the meas- ure of damages, in two former chapters,^ will apply here, viz., when the cases speak of the measure of damages being the consideration-money, or the value of the land at the time of eviction, they mean that this is the extent to which damages can be recovered upon the covenants for quiet en- joyment or of warranty, under any circumstances. Within 1 Powell V. Manufacturing Co. 3 « Chapters III. and V. Mason, 375. 332 THE. COVENANT OF WARRANTY. this limit there are various rules, and those which apply in the case of the latter covenants have, for greater simplicity of arrangement, been already noticed in treating of the damages upon the covenants for seizin and against incum- brances.^ 1 See supra, pp. 72, 134 et seq. &c. EXTENT TO WHICH COTENANTS, ETC. 888 CHAPTER VIII. THE EXTENT TO WHICH COVENANTS FOR TITLE RUN WITH LAND, AND HEREIN OF THEIR RELEASE. It has been somewhat generally said, on this side of the Atlantic, that covenants for title are divided into two dis- tinct and separate classes, those which run with the land, and those which do not possess this capacity ; that, in the former class, are comprised the covenants for quiet enjoy- ment, of warranty, and for further assurance ; in the latter, the covenants for seizin, for right to convey, and against incumbrances.^ The common-law doctrine of covenants running with land, being itself an exception to another common-law rule^ is attended with many niceties of distinction which it would be needless here to dwell upon. I will only attempt, there- fore, to notice such of its principles as are applicable to the subject of covenants for title.^ 1 This is not, however, the exact of warranty are prospective, and no form in which the proposition should breach occurs till an eviction, actual be stated, as all the covenants for or constructive. That for further title run with the land until breach, assurance seems to hold somewhat of and the difference taken by Ameri- a middle position, can authority between them is, as 2 it Jg impossible to examine the will be hereafter shown, that the cov- subject of covenants running with enants for seizin, for right to convey, land without experiencing the benefit and, it would seem, against incnm- to be derived from the very able note brances, are broken as soon as made ; to Spencer's case in the American ■while those for quiet enjoyment and edition of Smith's Leading Cases. 884< EXTENT TO WHICH COVENANTS Unless where covenants are to be performed on or about land to which they relate, they form no exception to the old common-law rule which prohibited the assignment of clioses in action, " lest there should be multiplying of contention and suits."^ But it was not in every case where the cove- nant was to be performed on or about land, that its burden or benefit passed to an assignee ; but its capacity in this respect depended upon the tenure between the covenantor and covenantee, the nature of the estate, the nature of the covenant, and the relation of the covenant to the estate. When the tenure between the covenantor and covenantee was such as to create a privity of estate between them, as was very anciently the case upon every conveyance, both the benefit and the burden of covenants which might be entered into by either passed to his assignee, not by direct operation of assignment, but as an incident to the land to which the covenant was annexed. When the statute of quia em-ptores abolished subinfeuda- tion, privity of tenure and estate no longer existed upon conveyances which passed the fee and left no reversion in the donor ; and it became a rule that covenants which im- posed any charge, burden or obligation upon the land were held not to be incident to it, and therefore incapable of pass- ing with it to an assignee; thus, if the owner of land granted it in fee, reserving to himself a rent which the grantee cov- enanted to pay, here, though the covenant was to be per- formed out of the land, yet the assignee of the covenantor would hold the land discharged from its liabiHty.^ But on Mucli advantage may also be had Sugdeu on Vendors, Vol. 2, chap, from the remarks in the third Real 14. Property Report of the British i Lampet's case, 10 Coke, 48. Commissioners, in 1832, which are ^-Xhiis the liability of an assio-nee somewhat freely commented on in to pay ground-rent can only be en- the tenth and eleventh editions of forced, on strict principles, where FOR TITLE RUN WITH LAND, ETC. S35 the other hand, if the covenant were one intended to benefit the land, it was held to be incident to it even if made by a 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 benefit of the land, have been held to run with it to the assignee ; that is to say, the owner of the land for the time being is entitled to the benefit of all the warranties and cov- enants which the prior owners in the chain of title may have given. There was, however, this important difference tliere is some privity between the covenantee and the assignee of the covenantor. See Milnes v. Branch, 5 Maule & Selwyn, 411. Until the statute of quia emptores abolished subinfeudation, such a privity grew, at common law, out of every con- veyance into which no contrary stip- ulation was introduced. In Penn- sylvania, before it was decisively an- nounced from the bench, in the case of IngersoU v. Sergeant, 1 Wharton, 337, that this statute never was in force in that State, the rights of the ground landlord against the assignee of his grantee could only have been supported upon the common law of that State, though attempts had, before that decision, been made to found them. on authority; see Streaper v. Fisher, 1 Rawle, (Pa.) 155 ; Scott V. Lunt's Admrs, 7 Peters, 605. 1 Such at least is the conclusion of the English Real Property Commis- sioners, 3d Rep. p. 52 ; and such J, appears to be the view taken by Mr. Hare. Lord St. Leonards, however, has questioned the accuracy of this conclusion, and seems to think that Pakenham's case has been misunder stood. 2 Sugden on Vendors, 472, &c. See Mr. Hare's note to Spencer's case, 1 Smith's Leading Cases, (4th Am. ed.) and the comments on the oases of Brewster v. Kitchell, 1 Lord Raym. 817; Taylor v. Owen, 2 Blackford, (Ind.) 301. 2 This is illustrated by the early authority of Pakenham's case, 42 Ed- ward HI., cited in Spencer's case, 3 Coke, 16, where a Prior and Con- vent 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 owner and his servants, the assignee of the manor was held entitled to the benefit of the covenant. In this case the covenantors were strangers to the land, there was no privity of estate between them and its owner, yet as the covenant was one supposed to benefit the land, it passed to whom- soever might be the owner, although, as between him and them, there was neither privity of estate nor con- tract. 336 EXTENT TO WHICH COVENANTS between warranty, and the covenants which superseded it. The former was, in the strict sense of the word, a covenant real, and its benefit descended upon the heir in every in- stance, whether it had or had not been broken in the Ufe- time of the ancestor. It was a right to which an executor could never succeed.'^ But with respect to covenants, although until breach, they, equally with the warranty, passed to the heir with the land they were intended to pro- tect, yet if a breach had occurred in the lifetime of the tes- tator, they then became choses in action, incapable of trans- mission or descent, and whose right survived to the executor alone.^ Nor is there any difference, as to principle, between Eng- lish and American authority in this respect. It is a settled rule, on both sides of the Atlantic, that until breach, the covenants for title, without distinction between them, run with the land to heirs and assigns. But, while this is well settled, a strong current of American authority has set in favor of the position that the covenants for seizin, for right to convey, and perhaps, against incumbrances, are what are called covenants in preseiiti — if broken at all, their breach occurs at the moment of their creation ; the covenant is, that a particular state of things exists at that 1 Touchstone, 175. 53, and King v. Jones, 5 Taunton, 2 Com. Dig. Covenant, B. 1 Wentworth's Office of Exec. 160 Lucy V. Levington, 2 Levinz, 26 Morley v. Polhill, 2 Ventris, 56 ; S, C. 3 Salkeld, 109, pi. 10 ; Smith v. 418 ; Jones v. King, 4 Maule & Sel- wyn, 188, though sound as to the decision, contain some dicta which would seem to justify the conclusion that modern covenants for title, like Simonds, Comberbach, 64 ; Ray- the warranty, passed to the heir or mond V. Fitch, 2 Crompt. Mees. & devisee, whether the breach did or Rose. 588 ; S. C. 4 Tyrwhitt, 985 ; did not happen in the testator's life- Ricketts v. Weaver, 12 Mees. & time. This was going too far, and Welsh. 718 ; Young v. Raincock, 7 has since been corrected by the cases Com. Bench, 310. The much con- of Raymond v. Fitch, Ricketts v. troverted cases of Kingdon v. Not- Weaver, and Young v. Raincock, tie, 1 Maule & Selwyn, 355 ; 4 Id. supra. FOR TITLE RUN WITH LAND, ETC. SS7 time, and if this be not true, the dehvery of the deed which contains such a covenant causes an instantaneous breach ; these covenants are then, it is held, turned into a mere right of action, which is not assignable at law, which can be taken advantage of only by the covenantee or his personal repre- sentatives, and can neither pass to an heir, a devisee, nor a subsequent purchaser. A distinction, therefore, exists, in this respect, between the covenant just named, and those for quiet enjoyment, of warranty, and for further assurance, which are held to be prospective in their character. On the other hand, it is held in England that no such distinction exists between the different covenants. That for seizin, it has been said, is not like a covenant to do an act of solitary performance, which not being done, the covenant is broken once for all, but it is rather in the nature of a covenant to do a thing toties quoties as the exigencies of the case may require, and that the want of seizin is therefore a continuing breach — that even although, according to the letter, there should be a breach on the instant of the crea- tion of the covenant, (when its words are in the present tense,) yet that according to its spirit, the right of action should pass to and vest in the party in whose time the sub- stantial breach occurs and who ultimately sustains damage ; the covenant not being intended merely for the benefit of the covenantee, but for the protection of all who derive their title to the land throusrh him. Such are the principal grounds on which the Enghsh decisions have been based.-' In the case of Kingdon v. Not- tle, when first presented,^ the plaintiff as executrix sued the defendant for a breach of the covenant for seizin, and, as is 1 Kingdon v. Nottle, 1 Mauls & Jones, 5 Taunton, 418; Jones u. Selw. 355 ; S. C. 4 Id. 53 ; King v. King, 4 Maule & Selw. 188. 2 1 Maule & Selw. 355. 29 S88 EXTENT TO WHICH COVENANTS usual in declarations on this covenant, assigned for breach that the defendant was not seized, &c., which on special demurrer was held bad, on the ground that there was no other damage than such as arose from a breach of the de- fendant's covenant that he had a good title — that that breach was not shown to have been a damage to the testa- tor — that it was not alleged that the estate was thereby prejudiced during the lifetime of the testator, and if after his decease any damage occurred, that would be a matter which concerned the heir. Judgment was, therefore, en- tered in that action for the defendant. But when the case was again presented,-' the same plaintiff' sued as devisee of the covenantee, setting forth in the declaration that the estate had been prejudiced by reason of the defect of title, and its sale prevented. On demurrer, it was argued for the defendant, that the covenant was broken as soon as made and therefore no right of action passed to the devise^ ; but it was held that so long as the defendant had not a good title there was a continuing breach, and although according to the letter, there was a breach in the testator's lifetime, yet that, according to the spirit, the substantial breach was in the time of the devisee, for she thereby lost the fruit of the covenant in not being able to dispose of the estate. The case of King v. Jones^ proceeded much on the same ground, though the covenant was for further assurance, which, although its breach occurs technically by the refusal to execute a further assurance,^ may present the same ques- tion as that arising on the covenant for seizin. In that case, the refusal to make further assurance occurred durinar the Ufetime of the covenantee, while the real damage was felt by his heir who was the party evicted. " The cove- nantee," it was said by the Court, " paid his purchase-money, 1 Kingdon o. Nottle, 4 Maule & 25 Taunton, 418. Selw. 53. 3 See supra, p. 199. FOR TITLE RUN WITH LAND, ETC. 889 relying on the vendor's covenant ; he required him to perform it, but gave him time, and did not sue him instantaneously for his neglect, but vs^aited for the event. It was wise so to do, until the ultimate damage was sustained, for otherwise he could not have recovered the whole value ; the ultimate damage, then, not having been sustained in the time of the ancestor, the action remained to the heir (who represents the ancestor in respect of land, as the executor does in respect of personalty,) in preference to the executor," and this judgment was affirmed on writ of error to the King's Bench.' On this side of the Atlantic, the State of Indiana is the only one in which the doctrine held in these cases^ has been fully recognized and enforced,^ although there are some in which no opposite opinion has been expressed. In Maine, however, recent statutory provisions have es- tablished the law in accordance with this doctrine.^ The Supreme Court of Ohio, though professing not to go quite to the extent of the modern English cases, yet has not in reality stopped far short of them. Backus's Admin- istrators V. M'Coy * is the leading case, and although the 1 Jones V. King, 4 Maule & Selw. ities agree with tlie first of these 188. In considering these cases, propositions, but, in general, dissent care must be taken to distinguish from the second, between their actual decision and 2 ggg Martin v. Baker, 5 Blackford, the dicta which they contain. The 232. In Keasouer v. Edmundson, 5 oases themselves decide no more Indiana, 393, the suit was brought than that in the first place, until by an assignee, and although in the breach, the covenants for title run very recent case of Bottorf v. Smith, with the land, and that, secondly, 7 Indiana, 674, the Court said "If the covenant for seizin, though nom- the vendor had no title, the covenant inally broken at the instant of its was broken immediately after it was creation, has in reality a continuing executed," yet the decision does not breach, not consummated until some touch the point ruled in Martin v. actual damage has taken place. In Baker, other words, it is not so much a cov- 3 gee infra, p. 343, note, enant in praseriti, as a covenant of i 3 Ohio, 216. indemnity. The American author- SiO EXTENT TO WHICH COVENANTS pleadings did not perhaps strictly call for the doctrine there laid down, yet it has since been adhered to and become the law of that State. Sherman, J., in delivering the opinion of the Court, after referring to the English decisions just cited, considered that they settled that " when the heir or assignee acquires any interest in the land, however small, by even an imperfect or defective title, he shall be entitled to the benefit of all those covenants that concern the realty ; and where he has been evicted by paramount title, he is the party damnified by the non-performance of the grantor's covenants, and, for such breach, may sustain an action. This seems to be reasonable in itself, as well as in accord- ance with the terms of the covenant. By considering the covenant of seizin as a real covenant, attendant upon the inheritance, it will form a part of every grantee's security, and make that which otherwise must be either a dead letter or a means of injustice, a most useful and beneficial cove- nant. A dead letter, when an intermediate conveyance has taken place between the making of the covenant and the discovery of the defect of title, and the covenantee refuses to bring suit. A means of injustice, when after the cove- nantee has sold and conveyed without covenants, he brings and sustains an action on the ground that the covenant was broken the moment it was entered into, and could not, thereafter, be assigned. When lands are granted in fee, by such a conveyance as will pass a fee, and the grantor covenants that he is seized in fee, we can perceive no objec- tion, legal or equitable, to this covenant, as well as the cov- enant of warranty, passing with the land, so long as the pur- chaser and the successive grantees under him remain in the undisturbed possession and enjoyment of the land." ^ The doctrine thus held, though strenuously assailed in the argu- ment of a subsequent case,^ was nevertheless there adopted 1 See supra, p. 22, note. 2 Foote v. Burnett, 10 Ohio, 327. FOR TITLE RUN WITH LAND, ETC. 841 by the Court, and may be said to be the settled law in the State of Ohio ; ^ and recent cases in Missouri have ap- proved and followed this same course of decision.^ 1 Devore v. Sunderland, 17 Ohio, 60. 2 Dickson v. Desire, 23 Missouri, 162. After referring to the English authorities, Leonard, J., in delivering the opinion of the Court said, " It is thus seen that the real point of dif- ference is that in England the ooTe- nant of seizin is, under some circum- stances, a mere covenant of indem- nity ; but in some of the United States it is always a present cove- nant, which if ever broken, must be broken as soon as made, and upon which of course only one recovery can be had, the right to which ac- crues as soon as the covenant is en- tered into. The true question would then seem to be, at what time the right of substantial recovery accrues ; whether at the moment of the deliv- ery of the deed, or is it postponed under any circumstances until the actual damage is sustained ? It would seem quite impossible to hold, as we were asked to do in a case before us at the present term, that the cause of action accrues immediately, so as to set the statute of limitations in motion against the party, if we are to hold that during the whole period of its running, the party could not have recovered anything more than nomi- nal damages ; and it would seem quite unreasonable to say that the party could not have a real recovery upon the mere formal breach, because no actual damage has resulted to him from the want of title, and yet after- wards to allow him to recover, not on account of any damage that had ac- 29* crued to himself but in respect to the loss that had fallen upon his grantee." After referring to the Ohio decisions, it was then said, " We are disposed to take a similar view of our statute covenant. It proceeded no doubt from an instinctive feeling of the moral propriety of requiring a party who sells land, and not merely his own interest in it whatever that may be, and conveys it by words of transfer appropriate to such a trans- action, to secure to the purchaser and those who succeed him in his rights, the enjoyment of the property sold, and to indemnify them if it should be lost by reason of any defect of title. This construction we think will best promote the object the leg- islature had in view, and subserve the purposes of justice, in transac- tions of this kind ; and we may re- mark here historically that the State of Maine, in the recent revision of her laws, has expressly provided that the right of action upon a covenant of seizin shall vest in the assignee of the land, so as to enable him to sue and recover in his own right after an eviction by a title paramount. When, therefore, a defeasible title, or the pos- session without any title, has passed under the deed, we shall consider the statute obhgation in respect to the ti- tle rather as one of indemnity, which, running with the land until the dam- age 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 which the warranty 34.2 EXTENT TO WHICH COVENANTS The weight of American authority is, nevertheless, un- doubtedly in favor of the position, that the covenant for 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 but the covenantee or his personal representatives.^ can be annexed, the benefit of it does not run to a subsequent assignee, admitting it to be applicable to the modern covenants of title, is obviated in cases like the present by the Amer- ican decisions that the conveyance by a grantor in possession under a claim of title passes an estate to the grantee sufficient to carry the cove- nants to any subsequent assignee." As to this see infra. In the subse- quent case of Chambers v. Smith, 23 Missouri, 179, it was said, "If there be a total defect of title, de- feasible and indefeasible, and the pos- session 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 transfer of the supposed right of the original grantee. In such case the breach is final and complete ; the covenant is broken immediately, once for all, and the party recovers all the damages that can ever result from it. If however the possession pass, al- though without right — if an estate in fact, although not in law, be trans- ferred by the deed, and the grantee have the enjoyment of the property according to the terms of the sale, the covenant runs with the land, and ■passes from party to party until the paramount title results in some dam- age to the actual possessor, and then the right of action upon the covenant vests in the party upon whom the loss falls." ' Hacker v. Storer, 8 Greenleaf, 228 ; Heath v. Whidden, 24 Maine, 383 ; but see the recent statute in Maine, cited in the note to the next page ; Williams v. Weatherbee, 1 Aikens, (Verm.) 233 ; Garfield v. Williams, 2 Vermont, 327 ; Rich- ardson V. Dorr, 5 Id. 9 ; Potter u. Taylor, 6 Id. 676; Pierce v. John- son, 4 Id. 253 ; Mitchell u. War- ner, 5 Connect. 497; Davis v. Ly man, 6 Id. 249 ; Biokford v. Page, 2 Mass. 455 ; Prescott v. Trueman, 4 Id. 627 ; Wheelock v. Thayer, 16 Pickering, (Mass.) 68 ; Thayer v. Clemence, 22 Id. 490 ; Clark i'. Swift, 8 Metcalf, 390 ; Greenby v. Wilcooks, 2 Johnson, 1 ; Hamilton v. Wilson, 4 Id. 72 ; Townsend v. Morris, 6 Cohen, (N. Y.) 123 ; Beddoe's Exr. v. Wads- worth, 21 Wendell, (N. Y.) 120; McCarty v. Leggett, 3 Hill, (N. Y.) 134 ; Blydenburgh v. Cotheal, 1 Duer, (N. Y.) 197 ; Lot v. Thomas, 1 Pen- nington, (N. J.) 407 ; Chapman v. Holmes, 5 Halsted, (N. J.) 20 ; Gar- rison V. Sandford, 7 Id. 261 ; Carter V. Denman, S Zabriskie, (N. J.) 270 ; Wilson V. Forbes, 2 Devereux, (N. Car.) 30 ; Grist w. Hodges, 3 Id. 200 ; South's Heirs v. Hoy's Heirs, 3 Mon- roe, (Ken.) 94 ; Rice v. Spottiswood, 6 Id. 40 ; Pence v. Duval, 9 B. Mon- roe, (Ken.) 48 ; Logan v. Moulder, 1 FOR TITLE RUN WITH LAND, ETC. 8i8 This rule has not, however, heen applied to the covenant against incumbrances, without a struggle. The original Pike, (Ark.) 313 ; Ross v. Turner, 2 English, (Ark.) 132; Pillsbury v. Mitchell, 5 Wisconsin, 21. In Mitch- ell V. Warner, especially, was the English doctrine severely criticized. From the opinion of Lord Ellenbor- ough in Kingdon v. Nottle, said Hos- mer, Ch. J., "I am compelled to dis- sent in omnibus. First, I affirm, that the novel idea attending the breach in the testator's lifetime, by calling it a continuing breach, and therefore a breach to the heir or devisee at a subsequent time, is an ingenious sug- gestion, but of no substantial import. Every breach of contract is a contin- uing breach, until it is in some man- ner healed ; but the great question is, to whom does it continue as a breach ? The only answer is, to the person who had the title to the contract when it was broken. It remains, as it was, a breach to the same person who first had a cause of action upon it. If it be anything more, it is not a continuing breach, but a new exist- ence. In the next place, I assert, that it is like a covenant to do an act of solitary performance ; and for this plain reason, that it is, in its nature, a covenant for a solitary act, and not a successive one. If the covenant is broken, that is, if the grantor was not seized, it is infracted to the core, and a second supposed breach is as futile, as the imaginary unbroken ex- istence of a thing dashed in pieces. It has no analogy to a covenant to do a future act, at different times, which may undergo repeated breaches. It has no futurition, and cannot be partly broken and partly sound ; but the grantor is seized, or not seized, and, therefore, the covenant is invio- late, or violated wholly. Not further to pursue the subject, I remark, that, in my judgment, the case of Kingdon V. Nottle may justly be said to au- thorize the assignment of a chose in action by devise ; a supposition . as unfounded as it is novel. I therefore conclude, that the determination in the above-mentioned cases of King- don V. Nottle are against the ancient, uniform and established law of West- minster Hall, against well-settled principles and decided cases in the surrounding States, and that the Judges pronouncing them would have been of an opinion different from the one expressed, had they recognized the principle here well established, that the breach of the covenant of seizin is, in its nature, total, and the measure of damages the whole con- sideration money paid for the land." In Maine, however, the rule which denies the benefit of a covenant for seizin or against incumbrances to an assignee has been thus altered by the Revised Statutes (1841), Title X. Chap. 115, § 16. "In all cases where real estate has been or may be con- veyed to any person, his heirs or as- signs, with a covenant that the grant- or was seized in fee of the same, and that it was free of all incumbrances at the time of such conveyance, the same estate being then under mort- gage or other incumbrance, or the grantor not being thus seized of the same, the assignee of such grantee, his executors or administrators, after having been evicted of said estate by 8U EXTENT TO WHICH COVENANTS object of the introduction of this covenant — it being" often connected with the covenant for quiet enjoyment, and there- by rendered equally prospective with it ^ — it being- often the elder and better title of the mort- gagee, his heirs, or assigns, may main- tain an action of covenant broken against the first grantor on any of the covenants in such absolute deed, in his or their own names, and recover such damages as the grantee might, if he had been evicted and had brought the action in his own name ; provided, he shall file in court, at the first term, for the use of the grantee, a release of the covenants in said grantee's deed, to said assignee, and all causes of action on any of such covenants. "§ 17. When a person has con- veyed, or shall convey real estate to another, covenanting in his deed that he is seized in fee of the prem- ises, and that they are free from all incumbrance at the time of the con- veyance, and such grantee shall after- wards convey the said premises to a third person In fee, such grantor shall have no power to release the said covenants contained in the deed first mentioned, so as to bar or any way aiFect the right of such third person to maintain an action a,gainst the first grantor for breach of said covenants of seizin and freedom of the prem- ises from incumbrance." The following observations upon these provisions were made in the recent case of Prescott v. Hobbs, 30 Maine, 346. " The 16th sect, of chap. 11.5, R. S., indicates," said Wells, J., " that a right of action shall pass to the assignee of the grantee for a breach of the covenant of seizin, but the language necessary to perfect such an intention is not used through- out the whole section. It subse- quently limits the enactment to cases of incumbrances arising from mort- gages. But sect. 17 dispels the ob- scurity of the prior one. It takes from the grantee, after he ' has as- signed to a third person, the power to release the covenants of seizin and freedom froni incumbrances, so as to bar or any way affect the right of such third person to maintain an action against the first grantor for breach of said covenants of seizin, and freedom of the premises from in- cumbrances. This section deprives the grantee, after assignment, of the power of releasing such covenants, and recognizes the right of the as- signee to maintain an action to re- cover damages for a breach of them. Taking both sections together, the meaning and purpose of the legis- lature is too plain to be disregarded. It is manifest that a right of action for a breach of the covenant of seizin, as well as that against incum- brances, is intended to be given to the assignee of the grantee." See also Stowell v. Bennett, 34 Maine, 422 ; Allen v. Little, 36 Id. 175. In Georgia, moreover, it has been said in a recent case, " I would sug- gest the inquiry, does the reason for not allowing the covenantee to sue for a breach of personal covenants apply in this State, where our leg- islature is so literal in favor of the assignability of choses in action ? " Redwine v. Brown, 10 Georgia, 318. 1 See supra, p. 109. FOR TITLE RUN WITH LAND, ETC. 34.5 called a covenant of indemnity, and the obvious policy of insuring its benefit to the owner for the time being, have all conspired to militate against the supposed technical rule which has confined the covenant for seizin within such a narrow sphere of usefulness. Accordingly, we find that, in South Carolina, it has been held that the benefit of this covenant passes with the land to its assignee,^ while in some earlier cases in Massachusetts,^ the assignee of one who had received a covenant against incumbrances was, without objection or comment, allowed to recover, and in a subse- quent case the language of the Court in favor of the rights of the assignee was direct and explicit.^ But a few years 1 McCrady v. Brisbane, 1 Nott & McCord, (S. Car.) 104. The author- ities, however, cited in support of this, were not appUcable to this cov- enant, since they were cases arising under covenants for further assur- ance, eminently prospective in their operation ; and indeed the distinc- tion between their several natures seems not to have been very closely observed. The following authority from Co. Litt. 384 b, would appear to have been principally relied upon : " It hath been adjudged (42 Ed. III.) that where two coparceners made partition of land, and the one made a covenant with the other to acquit her and her heirs of a suit that is- sued out of the land, the covenantee aliened. In that case, the assignee shall have an action of covenant, and yet he was a stranger to the cov- enant, because the acquittal did run with the land." " This seems," said Cheves, J., " almost precisely the case before us, and authorizes me to say, that where the covenant runs with the land, the assignee of the fee may have the benefit of the cove- nant against incumbrances in a case like the present." This is of course obvious, provided it be not held that the covenant is broken once and for all, at the instant of its creation. In the quotation from the Year Book, the covenant was a prospective one, and the decision would, it is believed, have been the same at the present day in any court. See infra. 8 Stinson u. Sumner, 9 Mass. 143, and Estabrook v. Hapgood, 10 Id. 313. 3 Sprague V. Baker, 17 Mass. 588. " The objection is," said Wilde, J., who delivered the opinion, "not that the covenant has been kept, but that it was broken previous to the assign- ment of the plaintiff, and being a chose in action it was not assignable by the common law. The ground of this objection has been frequently held valid by this Court ; Bickford v. Page, 2 Mass. Rep. 455 ; Wyman v. Ballard, 12 Id. 304. The same point was determined in the case of Lewis V. Ridge, Cro. Eliz. 863 ; and by a majority of the Court in the case of Greenby et al. v. Wilcocks, 2 John- 34-6 EXTENT TO WHfCH COVENANTS after,^ the technical rule was adhered to in so few words as to induce the impression that it had never been doubted, and although in one case the question seems to have been thought an open one,^ yet when the point was directly presented within a few years past, the authority of the earlier cases which proceeded upon the English doctrine was distinctly repudi- ated,^ and the question may be considered as finally settled in favor of the technical rule, not only in Massachusetts, son, 1. A similar doctrine is laid down by Comyn's Dig. Covenant, B. 3. It, however, depends upon a rule of the common law, for the avoidance of maintenance, the good sense of which Judge BuUer, in the case of Master v. Miller, 4 Durn. & East, 340, thought very questionable. He even pronounces it not only a quaint maxim, but a, bad one ; which, he says, the courts of equity, from the earliest times, thought too absurd for them to adopt. However this may be, it ia a rule of the common law, and must be held binding. But we are not disposed to apply it to cases not coming within the reason of the rule ; and we are inclined to the opinion, that the present is a case of that description. There was a breach of the covenant, it is true, before the assignment ; but for this breach Hitchings could only have recovered nominal damages. The actual dam- ages accrued after the assignment. These were sustained by the plaintiff, and not by Hitchings, who has no in- terest in them except what arises from his covenants with the plaintiff. But suppose there had been no such covenants, or suppose Hitchings to be insolvent; then, unless the plaintiff can maintain the present action, he is without remedy. This certainly would not be right, nor do I think that such is the law. It seems to me that, if the present case required a decision upon this point, we might be well warranted in saying that the covenant against incumbrances, not- withstanding the breach, passed to the assignee, so as to entitle him to an action for any damages he might sustain after the assignment, because the breach continued, and the ground of damages has been materially en- larged since that time ; so that the plaintiff's title does not depend upon the assignment of a mere chose in action. He is principally interested in the covenant, and those covenants run with the land, in which the own- er is solely or principal!}' interested, and which are necessary for the main- tenance of his rights. Covenant lies by an assignee, on every covenant which concerus the land. Com. Dig. Covenant, B. 3." 1 Tufts V. Adams, 8 Pickering, 549. 2 Pettee v. Hawes, 13 Pickering, 327. 3 Thayer v. Clemence, 22 Picker- ing, 494 ; Clark v. Swift, 3 Metcalf, (Mass.) 394 ; Whitney v. Dinsmore, 6 Cushing, (Mass.) 128 ; Osborne v. Atkins, 6 Gray, (Mass.) 424. FOR TITLE RUN WITH LAND, ETC. S47 but probably in most of the other States, with the exception as has been said, of Indiana, Ohio, Missouri and Maine. According, therefore, to the weight of American author- ity, the benefit of the covenant against incumbrances is denied to an assignee, unless where it is either so ex- pressed in itself, or so linked to another covenant as to have a prospective operation, and not be a covenant in pre- sent i} In examining the American cases which have thus es- tablished the rule referred to, it will be observed that the 1 As where tlie covenant is that the purchaser " shall enjoy, &c., and that free of all incumbrances," &c., see Jeter u. Glenn, 9 Richardson's Law, (S. Car.) 376, and supra, p. 109. Chancellor Kent, in referring in his Commentaries to the doctrine as settled by the American cases, has remarked, " that it is to be regretted that the technical scruple that a chose in action was not assignable, does necessarily prevent the assignee from availing himself of any or all of the covenants. He is the most inter- ested, and the most fit person to claim the indemnity secured by them, for the compensation belongs to him, as the last purchaser and the first sufferer." 4 Kent's Commentaries, 472. Lord Ellenborough got over the difficulty in Kingdon i'. JSTottle, when the case came before him the second time, by holding that the want of seizin was a continuing breach ; " but this," said Chancellor Kent, " is too refined to be sound. The breach is single, entire, and pertiect in the first instance." Nom- inally, indeed, this is so, yet in many instances, it may be that the breach is but nominal for a long time, un- discovered, perhaps, and in point of fact injuring no one ; and the want of title may be at length, for the first time, felt by one, who, removed from the original grantee by many con- veyances, has directly to bear the whole burden of the loss. In such case, if the injured party has not re- ceived a general covenant from his immediate grantor, and the cove- nants for seizin or against incum- brances are the only ones in the deed, he may be, according to the current of American decision, with- out remedy ; for a covenant limited to the acts of the grantor would not, of course, be broken by any want of seizin in those prior to himself in the chain of title. In those pai-ts of this country where, as in England, a ven- dor does not, in general, covenant beyond his own acts, it becomes im- portant that each vendee should have the benefit of all the covenants en- tered into by the prior owners, so that although each vendor may only have covenanted against his own acts, yet in the last vendee will be vested the right to take advantage of each and all of these covenants ; and this can only be on the principle that their tecimfcal and their actual breach occur at the same time. 34^8 EXTENT TO WHICH COVENANTS decision is often given with reluctance, and only in obedi- ence to what is supposed to be the strict technical common- law rule, as illustrated and enforced by the cases of Lucy v. Levington^ and Lewis v. Ridge.^ It is, however, some- what remarkable that these cases do not at all appear to support the position for which their authority is relied upon. The case of Lucy v. Levington decided no more than that where a testator, who had received a covenant for quiet enjoyment, was evicted, his executor was the proper party to take advantage of the covenant, the whole and ultimate damage having accrued to the testator by the eviction in his lifetime ; in other words, after the covenant is broken, its capacity for running with the land of course ceases ; a prop- osition too obvious to need the support of authority, and 1 This case is reported 2 Levinz, 26, 1 Ventris, 175, 2 Iveble, 831. The report in Levinz, is, as to the point now under inquiry, the most full, and is as follows : " Covenant : and declares that Levington sold to Luke Lucy, the plaintiff's testator, certain lands, and covenanted with him, his heirs and assigns, that he should enjoy the same against him and Sir Peter Vanlore, their heirs and assigns, and all claiming un- der them ; and assigns for breach, that Croke, claiming under Vanlore, ejected him. The defendant pleaded, that at the time of the covenant, he was seized of an indefeasible title, and that, by a subsequent Act of Parliament, reciting that Sir Peter Vanlore had settled his estate upon the Lady Mary Powell, and that cer- tain persons had unduly procured her to levy a fine, it was enacted that this fine should be void, and that all persons might enter as if no fine had been levied ; and that by force of this fine, non aliter, the de- fendant was seized, and sold and made this covenant ; and that after the act, Croke, claiming by title de- rived from the Lady Mary Powell by the settlement of Vanlore, by virtue of the said Act of Parliament entered and ousted him ; upon which the plaintiff demurred ; and for the defendant it was argued, first, that the covenant was with Lucy, his heirs and assigns, touching an estate of inheritance ; therefore the action ought to be brought by the heir or assignee, whose loss it is, and not by the executors. To which it was an- swered and resolved by the Court, thai the eviction being to the testator, he cannot have an heir or assignee of this land ; and so the damages belong to the executors, though not named in the covenant, for they rep- resent the person of the testator." The rest of the report is not mate- rial. 2 Cro. Eliz. 863. ETC. 84-9 which applies equally to a covenant for seizin or for quiet enjoyment.^ The case of Lewis v. Ridge is, however, the authority which, in this country, is deemed to he conclusive of the point that a covenant for seizin or against incumbrances is broken as soon as made, and is immediately incapable of assignment. The decision seems to have been somewhat misunderstood. " The case was such : the defendant, be- ing seized of land in fee, let it for life, remainder for life, rendering rent, and afterwards acknowledged a statute, and after that, by indenture bargained and sold the reversion, and covenanted with the bargainee, his heirs and assigns, that it should be discharged, within two years, of all statutes, charges and incumbrances, excepting the estates for life. The statute is extended, and thereupon this reversion and rent was extended. The bargainee grants this reversion to the plaintiff, who, for not discharging of this statute, brings covenant. And, all this matter being disclosed to the Court, it was thereupon demurred. The question principally moved was, whether the plaintiff, as assignee, shall have benefit of this covenant made to the bargainee by the common law, or by the statute of Si2 Hen. VIII. % But because the cove- nant was broken before the plaintiff's purchase, the land being then in extent, and so a thing in action, which could not be transferred over, it was adjudged for the defendant that the action was not maintainable against him." There are two obvious points of view from which the authority of this case will be found in no degree opposed to that of the more recent English decisions. In the first place, there can be no doubt that a covenant to discharge of incumbrances within two years, being a covenant to do a thing certain at or within a certain time, is finally and 1 Shelton u. Codman, 3 Gushing, 509 ; Tillotson v. Boyd, 4 Sandf. S. (Mass.) 321 ; Fields v. Snell, 4 Id. C. (N. Y.) 521. 30 S50 EXTENT TO WHICH COYENANTS actually broken at the expiration of that time, although no special damage whatever may have occurred to the cove- nantee. This was expressly decided in the case of Leth- bridge v. Mytton/ where, in an action by the trustees of the defendant's wife, on a covenant to pay off, within a twelvemonth, certain incumbrances to the amount of d£ 19,000, no special damage having been laid or proved, and judgment having gone by default, the sheriff's jury gave nominal damages ; but this was set aside by the Court, on the ground that, as the object of the covenant was that the estate should be unincumbered within a year, it would be valueless, unless upon it the plaintiffs could recover the whole amount of the incumbrance ; and such a distinction, arising from the peculiar nature of the covenant, has been distinctly recognized and applied in many cases on this side of the Atlantic,^ while under the ordinary covenant against incumbrances, as we have heretofore seen, although it may be held to be broken as soon as made, yet no more than nominal damages can, as a general rule, be recovered by reason of such a mere technical breach.^ But, in addition to this, it seems not to have been ob- served 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 it could be,* 1 2 Barn. & Adolph. 772. liable from the nature of the contract, 2 See them cited supra, p. 153, though the plaiutifif has not paid, note. " There is a difference," said But if it be to discharge and acquit Swift, J., in the course of an able opin- the plaintiff from any damage by ioninthecaseof Booth U.Starr, 1 Con- reason of such bond or particular nect. 249, " between a contract to dis- thing, then it is a condition to indem- charge or acquit from a debt, and one nify and save harmless ; 1 Saund. to discharge or acquit from the dam- 117, n." ages by reason of it. Where the 3 Supra, p. 134. condition of the contract is to dis- 4 in tjjjg p^se, the word extent charge or acquit the plaintiff from a seems to have been used in its o-eneral bond or other particular thing, then, sense, as synonymous with execution unless this be done, the defendant is upon a statute or recognizance. This FOR TITLE RUN WITH LAND, ETC. 851 " the land being then in extent, and so (that is the covenant) a chose in action ; " and, if we substitute the assignment by the covenantee in the one case, for the death of the cove- nantee in the other, the case of Lewis v. Ridge seems to become exactly that of Lucy v. Levington ; both perfectly consistent with each other, and both deciding no more than that after total breach the covenant becomes a chose in action, and therefore incapable of transmission or descent. It may not be improper to observe that in deciding such questions upon covenants for title, some regard should be had to the original purpose of their introduction, the inten- tion of the parties making and receiving them, and the object which they were intended to fulfil. They succeeded the ancient warranty, which was exclusively a covenant real, and could never in any event be taken advantage of by per- sonal representatives ; and it seems that the introduction of covenants in place of the warranty, was intended rather to ex- tend 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 in the older books, used will be found in Bac. Ab. Exe- for although, upon a statute staple the cution, B. And see the Stat, de conusee could not, after the appraise- Merc. 13 Ed. I., stat. 3, u. 1. This con- ment or extent of the lands, immedi- struotion seems also to have been put ately take possession of them, but upon the case of Lewis v. Ridge in was obliged to sue out a liberate, the recent case of Tillotson v. Boyd, (Fitz. Nat. Brev. 132,) in which case 4 Sandford's S. C. (N. Y.) 621 ; the extent was not the consummation where it is said : " As long ago as the of the execution but only one of its time of Queen Elizabeth, it was held parts, yet upon a statute merchant, if that a purchaser of land could not the sheriff returned to the capias that sue the person who had conveyed to the party was dead or not in his bail- his immediate grantor, on a covenant iwick, the lands were extended and which was broken before the plaintiff forthwith delivered to the conusee, had acqtiired right. Lewis v. Kidge, without the delay or expense of a Cro. EHz. 863." liberate; Fitz. Nat. Brev. 130. In- l See supra, pp. 12, 59, note, stances of the word extent being thus 832 EXTENT TO WHICH COVENANTS It was probably not supposed, at the period of its intro- duction, that the covenant for seizin could never be taken advantage of by any one to whom the land bad come by assignment or by inheritance, and that the remedy upon it was restrained to the covenantee himself, or to his executor, if the actual damage had happened in his lifetime. Such a doctrine, if practically enforced, might have materially les- sened the value of this covenant.-' The extent to which this doctrine is susceptible of modifi- cation, by allowing the assignee to sue in the name of the original covenantee, will be presently considered. But whatever difference of opinion may exist as to the right of an assignee to take advantage of the covenants for seizin or against incumbrances, there is none as regards the covenants for quiet enjoyment and of warranty. These are, 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 by descent or by purchase, by voluntary or by involuntary alienation.2 They may, therefore, be enforced not only by 1 Nor, perhaps, can an authority 2 Thus, it has been repeatedly held be found in the English books to that the benefit of covenants for title support such a doctrine. The case of will pass to a purchaser at sheriff's Lewis V. Kidge, it has already been sale, of a debtor's estate ; Carter v. observed, seems to have been misun- Denman, 3 Zabriskie, (N. J.) 270 ; derstood. The decisions in Kingdon MoCrady v. Brisbane, 1 Nott & Me- w.Nottle, and King V.Jones, appear to Cord, (S. Car.) 104; Lewis i: Cook, have laid down no new law ; and in 13 Iredell's Law, (N. Car.) 196 ; Town 3 Wentworth's Pleading, 440, will be v. Needham, 3 Paige, (N. Y.) 546 ; found an elaborate declaration, drawn Markland v. Crump, 1 Dev. & Batt. by Mr. Lawes, (author of the well- (N. CaV.) 94 ; Redwine v. Brown, known work on Pleadings in Assump- 10 Georgia, 320; White v. Whit- sit,) in an action brought by the ney, 3 Metcalf, (Mass.) 81 ; see assignee of pne who had received this case more particularly noticed, covenants, that a lease was a valid infra, p. 362. and subsisting one, and that the cov- enantor had full power to assign it. FOR TITLE RUN WITH LAND, ETC. 853 the covenantee and his representatives, but by heirs, devi- sees and alienees, who claim under the seizin vested in the original covenantee.^ Thus, in England, it is the theory of conveyancers to vest in every purchaser the benefit of all the prior covenants which have been entered into by the former vendors, and this, though each vendor may only have covenanted against his own acts. Thus, if A, B, C and D, were successively purchasers and vendors of an estate, each covenanting only against his own acts, on the conveyance to C, he would ac- quire the same rights under A's covenant to B, as B had himself done, and by a conveyance to D, the latter would acquire all the benefit of the prior covenants of A to B, in addition to those which he had personally received from C.^ 1 " For instance, if A convey land to B and his heirs, to certain speci- fied uses, or to such uses as C shall appoint, and covenant for title with B and his heirs, the right to sue upon the covenants will go with the seizin to the persons from time to time claiming under the uses limited by the conveyance, or under any appointment, by C under his power; so, if the conveyance were to B and his heirs, to such uses as C shall ap- point, and, in default of appointment to the use of C in fee, and A cove- nant with C and his heirs, and C (instead of exercising his power of appointment) convey the estate lim- ited to him in default of appointment, his alienee, it appears, can sue upon A's covenants ; so, if C, in the exer- cise of his power, appoint the land to the use of D, and covenant with 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 upon A's covenants, and 30* in the last case the right to sue upon C's covenants, will go with the land to all successive owners ; and the heir or assignee, although not named in the covenants for title, may nev- ertheless sue thereupon." ©art on Vendors, 363-4 ; and see 2 Sugden on Vendors, 489, &c. 2 At one time doubt was expressed in New York, in the case of Kane V. Sanger, 14 Johns. 89, whether an assignee was not, by the receipt of a covenant from his vendor, precluded from suing upon those made by the prior vendors, and consequently lim- ited to the covenants which he had himself received ; but this was, in the subsequent case of Withy v. Mum- ford, 5 Cowen, 137, shown to have proceeded upon a misapprehension of the language of Parsons, Ch. J., in Bickford v. Page, 2 Mass. 460, upon which the dictum in Kane v. Sanger was founded, and the doubt thus suggested has been frequently and decisively repudiated ; Booth 854< EXTENT TO WHICH COVENANTS It is evident, however, that if the defect of title were caused by A, D would have no remedy upon the covenants of B or C ; so if the defect were caused by C, he could sue neither A nor B. If the covenants were general, that is, not limited to the acts of the party covenanting, it would be otherwise ; as for a defect caused by A, D could sue either A, B, or C ; but it is apprehended that if the defect were the consequence of C's acts, neither A nor B could be held liable, as it would be unreasonable that a man should be held responsible for the acts of future owners of the estate. Mr. Preston was of opinion that covenants for title were incapable of being divided as to the benefit to be derived from them, and that if a vendor sold two farms, and cove- 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 sub- ject the covenantor to several actions ; ^ but this has been denied by Lord St. Leonards, who observes, " The better opinion seems to be, that an alienee of one of the estates could maintain covenant against the covenantor where the covenants run with the land, and as such, an action would lie either for damages, which would be measured by the loss of the assignee, as far as he might be entitled to recover it under the covenant, or for an act to be done, e. g. further assurance, which might properly be confined to the particu- V. Starr, 1 Connect. 241 ; Chase v. pressed with his usual ability) ; Her- Weston, 12 N. Hamp. 413 ; Williams rin u. McEntyre, 1 Hawks, (N. Car.) V. Wetherbee, 1 Aikens, (Verm.) 410 ; Thompson v. Sanders, 5 Mon- 239 ; Thompson v. Shattuck, 2 Met- roe, (Ken.) 358 ; Redwine v. Brown, calf, (Mass.) 615 ; Wheeler v. Sohier, 10 Georgia, 311. 3 Cushing, (Mass.) 222 ; Suydam v. l 3 Preston on Abstracts of Title, Jones, 10 Wendell, (N. Y.) 184; Le 57, 58. It seems to have been in Kay de Chaumont v. Forsyth, 2 Penn- great part owing to this reason that sylvania, 507 ; Markland v. Crump, he stated that purchasers in general 1 Dev. & Bat. (N. Car.) 94, (where attached more importance to cove- is an opinion of Kuifin, Ch. J., ex- nants for title than was deserved. FOR TITLE RUN WITH LAND, ETC. 855 lar proportion of the property. It does not seem that any injustice would arise by suffering several covenants to lie, although it might expose the covenantor to inconvenience ; whereas the denial of the right to each assignee might lead to positive injustice, or if not, to greater inconvenience on their part ; " ^ and this view of the law has been adopted in this country.^ So it seems to be considered in England, that where the estate is divided, as where it becomes vested in a tenant for life, with remainder in fee, and the breach of covenant affects the entire inheritance, the owner of each portion of the inheritance can sue for damages proportioned to the extent of his estate,^ but in a recent case in Penn- 1 2 Sugden on Vendors, 508, cit- ing Hare v. Cator, Cowper, 766 ; Stevenson v. Lambard, 2 East, 575; Twynam v. Pickard, 2 Barn. & Aid. 105 ; Merceron v. Dowson, 5 Barn. & Cress. 481 ; Curtis v. Spitty, 1 Bing. N. C 756 ; and see 9 Jarman's Con- veyancing, 366. All these cases, how- ever, except Twynam v. Pickard, were actions against assignees of a covena7itor. 2 White V. Whitney, 3 Metcalf, (Mass.) 87 ; Hunt v. Amidon, 4 Hill, (N. Y.) 345 ; Van Home v. Crane, 1 Paige, (N. Y.) 455 ; Aster v. Mil- ' ler, 2 Id. 68 ; McClure v. Gamble, 3 Casey, (27 Penn. State R.) 290 ; Dougherty v. Duvall's Heirs, 9 B. Monroe, (Ken.) 58 ; Dickenson v. Hoomes's Admr. 8 Grattan, (Va.) 406. 3 At least the proposition is so stated in Dart on Vendors, 366, re- ferring to 9 Jarman's Conveyancing, by Sweet, 404, and Noble v. Cass, 2 Simons, 343. In that case a house had been devised in trust for a daugh- ter for life, remainder to another for life, remainder over. .The house had been previously demised for a long term, in the middle of which the trustees brought an ejectment for and recovered possession of the prem- ises, and also recovered from the tenant £500 damages in an action on the covenants contained in the lease, for dilapidation of the premises, which sum they invested in their own name. After the death of the tenants for life, the remainder-men filed a bill against the trustees for the transfer to themselves of the sum thus invested, but it was dismissed by the Vice-ChanceUor, on the ground that the damages had been recovered for the use of the tenant for life only, and that for any injury done to the inheritance those in remainder might have their separate action. " It was urged," said the Vice-Chancelldr, "that the damages were something accruing to the inheritance, but no authority was produced to show that a court of equity has ever held that damages were anything but the per- sonal estate of the person who re- covered them ; and it appears to me that I should be introducing a new 356 EXTENT TO WHICH COVENANTS sylvania, it has been held that all the parties entitled to the benefit of the covenants for title must join in the action.^ It is evident, however, that the doctrine which gives to subsequent alienees the right to sue upon the covenants of a prior vendor must be susceptible of considerable qualification, in order to prevent the obvious injustice which would arise from making the latter liable to all the subsequent owners in turn, and thus pay damages more than once for the same breach of covenant. equity if I were to hold that dam- ages recovered in an action for a breach of a covenant running with the land, are to be considered as part of the inheritance. . . . Where a case is at all doubtful, the best way is to - follow the law. Now Littleton says, section 315, "Also as to actions per- sonals, tenants in common may have such actions personals jointly in all their names, as of trespass or of offen- ces which concern their tenements in common, as for breaking their houses, breaking their closes, &o. In this case tenants in common shall have one action jointly and shall recover jointly their damages, because the action is in the personalty and not in the realty.'' And Lord Coke, in commenting on this section, says " If an aunt and niece join in an action of waste for waste done in the life of the other sister, the aunt shall re- cover the damages only, because the same belongs not by law to the niece ; '' Co. Litt. 198 a. Therefore it is plain that the spirit of the law is, that with respect to injuries to land for which damages are to be recovered by per- sonal action, the person who brings the action is entitled to the dam- ages. 1 McClure v. Gamble, 3 Casey, (27 Penn. State K.) 288. " The title which the covenant was intended to assure," said Lowrie, J., who deliv- ered the opinion, " became vested by devise in Gamble for life with remainder to his children ; and it is objected that the title and the cove- nant are single, and that all those enti- tled to the remedy upon it must join in the action. We i-egard this objec- tion as sound, and as receiving sup- port by the reasoning of Mr. Justice Rogers in the case of Paul v. Whit- man, 3 W. & S. 409 ; though in that case it was decided only that different owners may properly join. Regard- ing the tenant for life and the re- mainder men as entitled, as against the covenantor, to one seizin and property divided as among them- selves into different periods, we think that the action on the covenant given to secure that seizin ought to be sin- gle, otherwise the covenantor, not being able to set up the judgment of one against the other claimants, might have to pay to all much more than is required by his covenant, and might be sijbjected to innumer- able actions for a single breach of the same covenant." FOR TITLE RUN WITH LAND, ETC. 857 To obviate such a result, a decision was made in one of the earlier cases in New York, which has, however, been subsequently departed from. In the case of Kane v. San- ger,^ the defendant conveyed, with covenants of warranty, certain lots to the plaintiff', who in turn conveyed them, with similar covenants; to different purchasers who were subse- quently evicted, when the plaintiiF brought suit on his cove- nant. It was objected that by his assignment to the different purchasers from himself, the plaintiff" had devested himself of all right of action on his vendor's covenants, but the Court held that as the plaintiff" was bound to indemnify these pur- chasers, that liability entitled him to support his action, and, to avoid the obvious objection that the original vendor might still be liable to these purchasers (on the- covenants which had passed with the land to them), it was suggested that the latter were, by their acceptance of the covenants made to themselves by the plaintiff", precluded from suing upon those of the original vendor.^ 1 14 Johnson, 89. however, the only ones relied on by 2 In the very recent case of Whee- the Conrt, nor perhaps would they ler V. Sohier, 3 Gushing, (Mass.) 222, be considered as available at the the Court, in commenting upon Kane present day in Massachusetts, since V. Sanger, said, " The grounds of the it has there been held that although a recovery were, that the plaintiff's mortgage technically vests the legal grantees had mortgaged the premises title in the mortgagee, yet the benefit to him for the purchase-money, so of covenants will, notwithstanding, that the plaintiff had the legal estate remain with the ecjuity of redemp- when the covenant was broken, and tion, and pass with it to successive the defendant had obtained releases purchasers ; White v. Whitney, 3 from the plaintiff's grantees of all Metcalf, (Mass.) 81 ; see infra, p. claims and damages sustained in con- 362, and if it were held that m the sequence of the covenant, so that the case of a mortgage, the benefit of a defendant was under no liability to covenant for seizin should attend the them ; and the Court held that these legal title in the mortgagee, it would releases could not bar the plaintiff's follow that one who had given a recovery; as, by the mortgage, the mortgage for the purchase-money seizin of the premises was in the could never sue upon his vendor's plaintiff, and the mortgage was un- covenant, because, by the mortgage, satisfied." These grounds were not, the right of action had become vestr 358 EXTENT TO WHICH COVENANTS This decision has, however, been since overruled on both these points, and another means adopted of meeting the dif- ficulty referred to. In the case of Booth v. Starr,^ decided in Connecticut in 1814, it was held that the right of action of an intermediate purchaser who had himself parted with all interest in the land, did not depend merely upon his prospective liability to the purchasers from himself, but that it could not be enforced until that liability should have been fixed by the recovery of damages by them, and their actual payment by him,^ and in the subsequent case in New York ed in the covenantor himself, and so merged. The law as to the benefit of covenants following the legal title in the mortgagee is considered more fully infra, p. 360. J 1 Connect. 244. 2 " In the present case," said Swift, J., in delivering the opinion of the Court, " the grantee or covenantee of the plaintiff has been evicted, but the plaintiff has never been sued, nor has he paid the damages. The question is, whether under these cir- cumstances he can maintain this ac- tion against the defendant, who is his immediate covenantor. The last assignee can never maintain an ac- tion on the covenant of warranty till he has been evicted. Though the title may be defective, though he may be constantly liable to be evict- ed, though his warrantor may be in doubtful circumstances, yet he can bring no action on the covenant till he is actually evicted ; for till then, there has been no breach of the covenant, no damage sustained. By parity of reason, the intermediate covenantees can have no right of action against their covenantors, till something has been done equivalent to an eviction ; for till then they have sustained no damage. As the last assignee has his election to sue all or any of the covenantoi-s, as a recovery and satisfaction by an inter- mediate covenantee against a prior covenantor, would not bar a suit by a subsequent assignee, such inter- mediate assignee ought not to be allowed to sustain his action till he has satisfied • his subsequent assign- ees, for otherwise every intermediate covenantee might sue the first cove- nantor ; one suit would be no bar to another ; they might all recover judgment and obtain satisfaction, so that a man might be liable to sun- dry suits for the same thing, and be compelled to pay damages to sundry different covenantees, for the same breach of covenant. In the present case, the plaintiff cannot know that his covenantee who has been evicted, will ever sue him ; he may bring his action directly against the defend- ant ; a recovery in this suit, and pay- ment of the damages, would be no bar ; the defendant could then have no remedy but by petition for a new trial, and if the plaintiff in the mean time should become unable to refund the money, the defendant would, by operation of law, be compelled to FOR TITLE RUN WITH LAND, ETC, S59 of Withy V. Mumford •' this decision was quoted with appro- hation, and it was moreover held that the acceptance by a purchaser, of covenants from his own vendor, had no effect whatever upon his rights on the covenants given by the prior vendors in the chain of title ; and on both these points many subsequent decisions have been to the same effect.^ It may therefore be considered as settled, in accordance with principle and authority, that where one has parted with all his interest in the land, he parts also with all right to or control over the covenants which run with it, and he can only regain that right over them by being made liable upon his own covenants and satisfying that liability ; ^ and when the conveyance has been of part of the land only, the same doctriae will, it is apprehended, apply proportionally. pay the same demand twice, Tvith- out redress. But if the principle is adopted that the intermediate cove- nantee can never sue till he has sat- isfied the damages, no such injustice can ensue. The subject may be con- sidered in another view. In all these cases it is the duty of the first cove- nantor to make good the damages for a breach of the covenant, and to indemnify all the subsequent cove- nantees. Each subsequent cove- nantor is liable to all the subsequent covenantees, and, on paying the damages, will have a claim for in- demnity against a prior covenantor. The nature, then, of the engagement of the first covenantor is to indem- nify all the subsequent covenantees from all damages arising from his breach of the covenant." 1 5 Cowen, 137. 2 Chase v. Weston, 12 N. Hamp. 413 ; Williams v. Wetherbee, 1 Aikens, (Verm.) 239 ; Thompson V. Shattuck, 2 Metcalf, (Mass.) 615 ; Wheeler v. Sohier, 3 Gush- ing, (Mass.) 222 ; Suydam v. Jones, 10 Wendell, (N. Y.) 184; Baxter. V. Ryerss, 13 Barbour's S. C. (N. Y.) 283 ; Le Ray de Chaumont u. For- syth, 2 Penn. 574 ; Markland v. Crump, 1 Dev. & Bat. (N. Car.) 94 ; Herrin v. McEntyre, 1 Hawks, (N. Car.) 410 ; Thompson v. San- ders, 5 Monroe, (Ken.) 358 ; Ked- wine V. Brown, 10 Georgia, 311. In Grifiin v. Fairbrother, 1 Fairfield, (Me.) 91, the plaintiff brought suit on a covenant of warranty broken after he had aliened the land, and although the action was brought for the benefit of the plaintiff's grantee, so that a judgment in that action would be a bar to any action which the latter might bring against the defendant, who could not therefore be twice charged, it was held that the action could not be maintained. 3 Allen V. Little, 36 Maine, 170; Vancourt v. Moore, 26 Missouri, 98, in which cases the passage in the text was cited and approved. S60 EXTENT TO WHICH COVENANTS But from the doctrine that the benefit of covenants for title passes, with the legal estate, through successive aliena- tions, and vests in and is divisible among its owners for the time being, it would seem in strictness to follow that where a mortgage of the land is given, the benefit of the cove- nants must, in a court of law, be regarded as passing with the legal estate to the mortgagee. It would be, indeed, obvious that to the extent of his interest in the land, he would be entitled to the protection of the covenants,^ but it would seem that wherever the common-law relation of the mortgagee as the holder of the legal title is recognized, as is the case in England and some of our States, he must, on strict principles, absorb the whole benefit of the covenants, to the exclusion, in a court of law, of any subsequent pur- chaser of the equity of redemption. Thus, it has been decided in England that an equity of redemption is neither such an estate as can render an assignee liable for a breach of a covenant for quiet enjoyment of an easement granted out of it,^ or such as will carry to an assignee the benefit of 1 MoMurphy v. Minot, 4 N. liamp. not assignees of all the estate, &c., of 251 ; Cavis <;. McClary, 5 Id. 529 ; Denton, and upon this an issue was Tufts p. Adams, 8 Pickering, (Mass.) joined, and at the trial it appeared 550 ; White v. Whitney, 3 Metcalf, that long before the breach of cove- (Mass.) 87. See this case, ivfra, p. nant one Wilson was mortgagee of 362. the property, and the defendants were 2 The Mayor of Carlisle v. Bla- seized only of the equity of redemp- mire, 8 East, 487. In this oase, one tion as devisees of Denton's heir-at- Denton granted to the Corporation law. They were therefore nonsuited, of Carlisle so much of the river Cal- and, as the Court in bane held, prop- dew as should be sufficient for their erly. " It is impossible," said Lord mills, and covenanted that neither he Ellenborough, " to say that the de- nor his heirs nor assigns should ever fendants were assignees of the estate divert its course. The defendants of Denton within the sense and mean- were sued as assignees of all the es- ing of the terms in which this issue tate, right, title and interest of Den- was framed, and which terms respect ton, and the breach alleged was the that description and quality of estate erection of a wear or dam by them alone, namely legal estate, in virtue across the river. They pleaded whereof parties are at all liable to among other things that they were actions of covenant as assignees." FOR TITLE RUN WITH LAND, ETC. 361 a covenant for the payment of rent ; ^ and in a very recent case, where a purchaser having mortgaged the premises was afterwards evicted by a paramount title, and sued his vendor, at law, upon the covenants he had received from him, a plea that at the time of the eviction the plaintiff had no estate or interest in the land, was held to be a bar to the action.^ So in a recent case in Kentucky, where the facts were similar, it was held that so long as the mortgage remained unpaid, the covenants for title vested with the legal estate in the mortgagee.^ Such a course of decision would obviously lead to the embarrassing result that where land was sold with covenants for title, and the purchaser had given to his vendor a mort- gage for any part of the purchase-money, no matter how small, the benefit of the covenants, passing with the legal estate, would vest, therefore, in the same party who was also bound by them, and hence the purchaser could not, even upon an eviction of the whole estate, have any remedy in a court of law if, at the time of his eviction, the mort- gage remained unpaid, but his only remedy would be in a court of equity.* It is, however, familiar, that in many of our States the 1 Pargeter v. Harris, 7 Queen's his rights stand on a different footing. Bench, 708; Whenever the money spec- 2 Thornton v. Court, 17 Jurist, ified in the mortgage has been paid, (March, 1853,) 151; 17 Eng. Law the mortgage is fully satisfied, and & Eq. R. 231 ; see this ease noticed even ■without a formal release, the more fully, infra, p. 365. title, by the act of payment, reverts 3 McGoodwin v. Stephenson, 11 B. to the mortgagor, and of course, in Monroe, (Ken.) 22. "Thecovenantin such case he could maintain the ac- the deed," said the Court, "is the usual tion having been thus reinvested covenant of title, and runs -with the with the legal title ; but so long as land. It is well settled that a mort- the debt remains unpaid and the gagor, even after forfeiture, is con- mortgage is in full force unsatisfied sldered in equity, as still having the he is deprived of the legal estate, ownership of the estate, the land be- and cannot sue for a breach of the ino' only a pledge or security for the warranty of title.'' mortgage-money. At law, however, * But see infra, Chapter IX. 31 36^ EXTENT TO WHICH COVENANTS doctrine that "■ a court of law knows nothing about mort- gagor and mortgagee,"^ has been much relaxed, and it is not necessary to have recourse to equity to establish the consequences of considering the mortgage as a mere secur- ity for the payment of the debt. This has been carried so far in New York that an assignee of the mortgage takes it not only subject to the state of accounts between the mort- gagor and mortgagee, but, according to the recent decisions, subject even to equities of third persons,^ and hence in that State, the rule enforced in the cases just cited would meet with little favor, and it has been there decided that where land is conveyed with a covenant of warranty, and a mort- gage given to secure the unpaid purchase-money, and the mortgage is afterwards foreclosed and the premises sold, the benefit of the covenants passes to the purchaser, not- withstanding the mortgage.^ In a recent case in Massachusetts,* moreover, the doc- trine that the covenants for title would pass with an equity of redemption was distinctly announced. The owner of cer- tain premises, after having mortgaged them, conveyed them with a covenant of general warranty, to a purchaser whose estate was afterwards levied upon by a creditor and sold to the plaintiff, who after having been evicted by the mort- gagee, brought suit upon the covenant, when it was objected that all the benefit of the covenants for title had passed with the legal estate to the mortgagee, and hence that the plain- tiff could not recover. But the Court held that although a mortgagee was certainly entitled to the benefit of the cove- 1 Per Bayley, J., in Partridge v. 316 ; Poillon v. Martin, 1 Sandford's Bere, 5 Barn. & Aid. 604, 1 Dowl. Ch. (N. Y.) 569 ; see the note to & Ryl. 273; cited in McGoodwin v. Row v. Dawson, 2 Leading Cases in Stephenson,su/)?-a, p. 361. See Cross Equity. V. Robinson, 21 Connect. 387, cited 3 Town u. Needham, 3 Paige, (N. infra. Y.) 645 ; see also Andrews v. Wol- 2 Van Rensselaer v. Stafford, Hop- cott, 16 Barb. S. C. (N. Y.) 21. kins' Ch. (N. Y.) 569 ; Stafford v. * White v. Whitney, 3 Metcalf, Van Rensselaer, 9 Cowen, (N. Y.) (Mass.) 81. FOR TITLE RUN WITH LAND, ETC. S6S nants so far as necessary to protect his interest, yet that, subject to this, their benefit would remain with the equity of redemption, and pass with it, whether by voluntary or involuntary alienation, to its purchaser.^ Such a course of 1 " By our laws," said Shaw, Ch. J., who delivered the opinion of the Court, "a mortgage is considered, as between the mortgagor and mort- gagee, and so far as it is necessary to give full effect to the mortgage as a security for the performance of the condition, as a conveyance in fee; but for all other purposes it is con- sidered, especially until entry for condition broken, as a mere charge or incumbrance, which does not de- vest the estate of the mortgagor. He is deemed seized so far that he can convey it, subject to the mort- gage ; he may make a second mort- gage ; it may be attached for his debts ; he is considered as having all the rights and power of an owner, except so far as it may be necessary to hold otherwise, in order to give effect to the mortgage. The interest of the mortgagor is thereby regarded as an estate, though in legal strictness, and as against th'e- mort- gagee, it is an equity of redemption. .... These principles are so familiar that it is hardly necessary to multi- ply authorities in support of them. In the case of Sumner v. Williams, 8 Mass. 162, in which there was a great diversity of opinion on some points, the conveyance upon which •the covenants were made was, upon the face of it, the conveyance of an equity of redemption, because it was described as subject to one mortgage, which was excepted in the covenants against incumbrances ; but it was not doubted that the conveyance of an equity of redemption was that of an estate to which covenants real could be annexed. Were it otherwise, in case of the conveyance of an estate with the usual covenants of seizin and warranty, but described to be subject to a mortgage which the grantor stipulates to pay off and dis- charge, and which he accordingly does pay off and discharge, still the covenants in futuro and all cove- nants running with the land would be inoperative. No ; the general result of the rules of law upon this subject seems to us to be, that a mort- gage, though an estate in fee to the mortgagee, to the extent necessary for his security, is, to all other pur- poses, an estate in the mortgagor ; and the mortgage, except so far as the rights and security of the mort- gagee are concerned, is regarded as a burden or charge only upon the estate, and when removed or dis- charged, it leaves the estate in the hands of the mortgagor or his gran- tees, attaching creditor or assignees in fact or in law, in the same condi- tion as if such mortgage had not ex- isted. We are therefore of opinion, that the conveyance from the de- fendant was the conveyance of an estate to which covenants real would attach, and which covenants might pass with the estate to a grantee or assignee. ..... Suppose A, holding an estate protected by covenants of seizin and warranty against all in- cumbrances, but subject in fact to an outstanding mortgage, or to some de- 864< EXTENT TO WHICH COVENANTS decision is certainly supported by strong reasons of conven- ience, and where, as in most of our States, the mortgagor is invested with most, if not all the incidents of legal as well as of equitable ownership, it would probably be fol- lowed. So where premises are conveyed in mortgage, with covenants for title, and the mortgagor afterwards releases to the mortgagee, although this may operate as a merger of the lesser estate in the greater, yet it has been held that it will not extinguish the covenants contained in the mort- gage/ feet of title, should make a mortgage to B, afterwards his equity of re- demption is attached by C, his cred- 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 ; •would the benefit of the covenants under which ♦A held, pass by his mortgage to B, or by the sheriff's deed to D ? We think the question is answered by saying to both, ac- cording to their respective rights in the estate. It is incident to the es- tate, and inseparably annexed to it. B, the mortgagee, being first in time, would be first in right, so far as nec- essary to his security as mortgagee ; he is deemed seized of the estate, and of course to the same extent that he holds the estate, he is the assignee of the covenant. But D the purchaser at the officer's sale, purchases the whole estate, subject to B's mortgage ; to the same extent and under the same limitations that he takes the estate, he is assignee of the covenant. Should B enter to hold under his mortgage and actu- ally foreclose, he would hold the whole benefit of the covenant; but if D should pay off B's mortgage, as he would have a right to do, this would extinguish the mortgage ; he would hold the whole estate, and of course, the whole interest in the cove- nant, as assignee in law. In such case, if suit were to be brought on the covenant, before either foreclos- ure or redemption, there might be a question who would have a right to sue, or what damages the plaintiff would have a right to recover. But no such question can arise here, be-, cause the covenant of the defendant was incident to the estate conveyed by him to Adams, being an equity of redemption in its terms, and the whole of that estate came to the plaintiff by the sheriff's deed ; and he alone now has an interest. It may be added, by way of further illustration, that the purchaser at the sheriff's sale takes a defeasible estate only ; the debtor has a right to redeem within a year, and rein- vest himself with the estate ; and should he do so, he would be rein- stated in his right to the covenant of warranty attending it." 1 Lockwood V. Sturdevant, 6 Con- nect. 373. "Mortgage deeds,'' said Hosmer, Ch. J., who delivered the opinion, " generally, if not univer- FOR TITLE RUN WITH LAND, ETC. 865 And even where the mortgagee is considered in a court of law as the holder of the legal estate, so as to become entitled to the benefit of all the covenants which pass with it, to the exclusion of the owner of the equity of redemption, yet the right of the latter to the interposition of equity is sufficiently obvious upon general principles. This was well exemphfied in the recent case in England of Thornton v. Court,^ where the plaintiff having purchased of the defend- ant certain freehold property, with a covenant for quiet enjoyment, afterwards mortgaged it, and was subsequently evicted under a paramount title, when he brought suit against the defendant upon the covenant. The latter pleaded that at the time of the eviction, the plaintiff had conveyed the legal estate to the mortgagee, and had no estate nor interest in the premises remaining in him. This was a bar to the plaintifi's action at law, and the defendant subsequently paid off" the mortgage, and received from the mortgagee an indorsed acknowledgment of the receipt of the mortgage-money and that it was in full satisfaction of the mortgage debt and of all demand which the mortgagee might have against the defendant under the covenant con- sally, are secured by covenants of mortgage title, guarded by covenants, title, and the equity of redemption is the plaintiff's only security, and it is extinguished by release or fore- would be flagrantly unjust and in closure. In the event of a release opposition to general convenience to from the mortgagor, it cannot be hold that the title by mortgage presumed to have been the intention should merge and the plaintiff be of the parties to extinguish the mort- remediless. Upon the same princi- gage title, and in both events, of pie, upon decree of foreclosure, the release and foreclosure, it would be mortgagee would be without remedy unjust and inconvenient to hold this if his title should prove defective," as legal doctrine. The title to the and this decision was approved and estate may be found fatally defec- followed in the late case of Lloyd v. tive, and of this the case under dis- Quimby, 5 Ohio State K. 264. See cussion is a full illustration. That also Andrews v. Wolcott, 16 Barb, the debts secured by the mortgage S. C. (N. Y.) 21. should faithfully be paid was the 117 Jurist, (March, 1853,) 151; intention of both parties, and to this 17 Eng. Law & Eq. R. 231. end the release was executed. The 31* 366 EXTENT TO WHICH COVENANTS tained in the deed to the plaintiff". The latter then filed a bill, praying that he might be declared entitled to the benefit of the covenant for quiet enjoyment as against the defend- ant — for a reference to a Master to assess the damages, — and for payment by the defendant of such sum as might be awarded therefor, deducting what should be found to have been properly paid by the defendant in satisfaction of the mortgage, and the Court were clearly of the opinion that the plaintiff" was entitled in equity to the benefit of the cove- nant, and directed an action at law to be brought by the plaintiff", in which the defendant should be restrained from setting up in his defence, by pleading, evidence or otherwise, the mortgage executed by the plaintiff", or the indorsed re- lease of the covenant.^ 1 " The defendant in this case," said Sir Knight Bruce, L. J., " en- tered into a covenant for the peace- able enjoyment, by the plaintiff, of an estate which the defendant sold to him. The plaintiff having paid his purchase-money, entered into possession accordingly. The plain- tiff then mortgages his property once or twice, as he was entitled to do, so parting with the legal estate and with it the legal right to bring an action of damages ; but he became entitled to redeem the property, and to reinstate himself in the fullness of his original right. In this state of things, an adverse or paramount title is asserted, and the plaintiff, being in possession, defends himself at law unsuccessfully. The paramount claim, which was adverse to all the plaintiff's rights, succeeds, and the plaintiff is evicted. No man can doubt, that, in that state of circum- stances, the plaintiff has a right to recover some damages, some sub- stantial damages, from the cove- nantor whose covenant has thus been broken. The defendant, the covenantor, being aware of this, applies to the mortgagee, in whom was the legal estate, as I have said — a legal estate carrying with it, of course, the whole right to sue on the covenant — and pays liim off, ac- quiring thereby the right the mort- gagee had, and takes at the same time an acknowledgment from the mortgagee that the payment is in full of all demands upon the cove- nant, thereby creating, according to my present opinion, a case of accord and satisfaction, rendering it impos- sible for him ever to be sued on the covenant. The plaintiff, therefore, is left entirely without remedy in a court of law by the act of the de- fendant, and he comes to the Court asking (whether in a perfect form or not is a matter unimportant) for an assessment of damages either here or in a court of law, which he would have plainly had a right to have eis- sessed in a court of law, but for the FOR TITLE RUN WITH LAND, ETC. 367 It has been already stated that where one has parted with all his interest in the land, he parts also with all right to or control over the covenants which run with it,^ and it necessarily follows that a release of those covenants made after such conveyance^ will be as wholly ineffectual against the purchaser as a second conveyance of the laud itself would be.^ right acquired by the defendant. I confess, if that be as I believe it is, the true state of things, there appears to be only one course to be taken. There is a right in the mortgagee, or the person to whom the mortgage has been transferred, to payment of every shilling of his advance, with interest ; and there must also be as- sured to the plaintiff a right to ascer- tain the amount of damages to which he is entitled at law. The amount of damages cannot, I think, — and that seems to be the opinion of my learn- ed brother, also, — be ascertained by us without the consent of both par- ties to the litigation. Perhaps, even if both parties consented, we might decline to take upon ourselves such a jurisdiction ; but I am rather dis- posed to think, that, upon the request of both parties, we might take upon ourselves the burden of so doing." The following was the order made in the case : " The plaintiff, by his counsel, undertaking to bring, in his own name, such action at law as he shall be advised, on the covenants in the pleadings mentioned, and to de- liver the declaration in such action within three weeks from the date of this decree, and to proceed to the trial of the said action at Chester with due diligence, it is ordered that the defendant be restrained from setting up, in his defence to such action, by pleading, or in evidence or other- wise, the deed or deeds of mortgage executed by the plaintiff, or the memorandum indorsed on the mort- gage deed of the 25th of April, 1842, in the pleadings mentioned ; and it is ordered that execution in the said action do not issue without the leave of this Court. Reserve further direc- tions and costs till after the trial of the said action. Liberty to apply.' 1 Supra, p. 359. 2 For the effect of a release of the covenants made by one who is at the time the owner of the land, see infra, p. 371. 8 Middlemore v. Goodale, Cro. Car. 503, infra, p. 372 ; Chase v. Weston, 12 N. Hamp. 413 ; Crooker v. Jew- ell, 29 Maine, 527 ; Prescott v. Hobbs, 30 Id. 346, and see the provisions of the Revised Statutes of Maine, cited supra, p. 343 ; Alexander v. Sohrie- ber, 13 Missouri, 271 ; Cunningham V. Knight, 1 Barb. S. C. (N. Y.) 405. The recent case of Lewis v. Cook, 13 Iredell's Law, (N. Car.) 193, was decided upon an anal- ogous principle. A man and his wife, seized in her right, sold land to Harrison by a conveyance deficient as to the private examination of the wife, and which, therefore, only pass- ed the husband's life estate. The purchaser resold, with a general cove- nant of warranty to Howerton, who 868 EXTENT TO WHICH COVENANTS So long, however, as the covenantee remains the owner of the land, a release by him to his covenantor of the cove- nants given by the latter, will of course be binding as between themselves,^ and it would seem that in England, sold again to Green, in April, 1842, by a deed which contained a clause, assigning " all the covenants in the deed of Harrison warranting the title of said land, and all other covenants in said deed contained." In March, 1842, however, the land had been levied upon under execution against Howerton, and some months after was sold at sheriff's sale and purchased by the plaintiff, who continued in possession until the death of the first vendor, when he was evicted by the heirs of the wife, and brought cove- nant against the executor of Harri- son. It was objected to his recovery that the deed from Howerton to Green not only professed to pass the estate, but expressly passed the cove- nant of warranty ; and that although it was overreached in regard to the estate, by the sheriff's sale and deed, yet that this could not affect the as- signment of the covenant, the benefit of which had passed to Green. " But," said the Court, " this cannot be so. The incident cannot be pass- ed without the principal. If the principal does not pass, how can the incident pass ? They are insepara- ble. Can the substance pass without the shadow, or the shadow without the substanre ? There is no author- ity or reason to support the proposi- tion, that a covenant annexed to an estate and running with it, can be severed and assigned so as to be pass- ed by itself and restrained by itself, and thereby give an independent cause of action. To show the ab- surdity of the idea, take this very case. The plaintiff, under the deed of the sheriff, goes into possession, and is evicted by title paramount ; he has a cause of action, but the ar- gument is, he has no covenant to sue on ; and Green has a covenant, but no cause of action, for he has not been evicted. So the covenantor es- capes from his obligation, and cannot be sued by either. Again, is it rea- sonable or right, that a debtor finding his estate bound by executions of prior teste, should have the power to sever from the estate, covenants an- nexed thereto for its protection, and assign them to a third person, where- by the estate, thus " stripped naked," would sell for nothing, and his credit- ors be defrauded ? " 1 Thus it has been frequently held that a vendor may be a competent witness in support of the title of his vendee, upon being released from the covenants for title given by him ; Paul V. Frost, 40 Maine, 293 ; Sar- gent V. Gutterson, 13 N. Hamp. 4*67; Clark U.Johnson, 5 Day, (Conn.) 373, (overruling Abby v. Goodrich, 3 Id. 433) ; Van Hoesen v. Benham, 15 Wendell, (N. Y.) 165 ; Ford v. Wals- worth, 19 ih. 334 ; Cunningham v. Knight, 1 Barbour, (N. Y.) 405 ; Littlefield v. Getchell, 32 Maine, 392; Field v. Snell, 4 Gushing, (Mass.) 504 ; Lawrence v. Senter, 4 Sneed, (Tenn.) 52 ; Arnold v. Mc- Neill, 17 Arkansas, 185 ; Cooper v. Granberry, 33 Mississippi, 117; of course, without such a release a FOR TITLE RUN WITH LAND, ETC. 369 the burden of a covenant cannot be removed otherwise than by an instrument of equal solemnity with that creating it, upon the application of the maxim, quo modo ligatur, eodem modo dissolvitur} On this side of the Atlantic, however, there have been many decisions to the effect that a parol dispensation with the performance of a sealed contract is valid ; upon the ground that although the contract itself cannot be dissolved unless by a specialty, yet that the rights proceeding from it may be varied or released by parol? But whatever may have been the agreement between the covenantor and the covenantee as respects the dispensation of the covenants or alteration of the rights which they con- fer, it has been decided in New York that an assignee of the land, and consequently of the covenants which run with it, cannot be affected by any equities created at the time the latter were entered into, of which he had no notice. In vendor would not be a competent ■witness, Elliott v. Boreu, 2 Sneed, (Tenn.) 663, unless his interest were equally balanced, Eobb v. Lefevre, 7 Clarke, (Iowa,) 150, or unless be had conveyed without covenants ; Doe v. Cassiday, 9 Indiana, 66. 1 Rogers v. Payne, 2 Wilson, 376 ; Kaye v. Waghorn, 1 Taunton, 428 ; Cordwent v. Hunt, 8 Id. 596 ; Harris V. Goodwyn, 2 Man. & Grang. 405, note (a) of Sergeant Manning to May V. Taylor, 6 Id. 262 ; West v. Blake- way, 2 Id. 729. 2 United States v. Howell, 3 Wash. C. C. K. 620 ; Fleming u. Gilbert, 3 Johnson, 528 ; Langworthy v. Smith, 2 Wendell, (N. Y.) 587 ; Dearborn V. Cross, 7 Cowen, (N. Y.) 48 ; Leavitt V. Savage, 16 Maine, 72; Marshall u. Craig, 1 Bibb, (Ken.) 379. Many of the cases suggest the analogy between such a parol dispensation and a license to exercise dominion over land, which, while unrevoked, is a justification for any acts done under its authority, and some of the earlier English cases were in harmony with thosejust cited ; 1 Roll. Abr. 433, pi. 5, Id. 455, pi. 1 ; Blackwell v. Nash, 1 Strange, 535 ; and in Jones v. Barkley, 2 Douglass, 684, it was held that a tender of per- formance and waiver of it (the evi- dence of which must always rest in parol), were equivalent to actual performance. The later English cases however, enforce a more tech- nical rule. It must also be observed that to render a parol dispensation of performance of a covenant valid, it must have occurred before breach, as, after the covenant is broken nothing short of an accord and satisfaction will be a bar to an action. United States V. Howell, supra ; Shaw v. Hurd, 3 Bibb, (Ken.) 371 ; Note on " License " in 2 Am. Leading Cases ; Note to Cumber v. Wane, in 1 Smith's Leading Cases. 370 EXTENT TO WHICH COVENANTS Suydam v. Jones,^ premises which were subject to a mort- gage were conveyed with covenants of warranty and for quiet enjoyment, and in a suit on these covenants by an assignee of the purchaser, a plea that at the time of the execution of the defendant's deed it had been agreed that the purchaser should assume and pay the mortgage as part of the consideration, was held bad on a general demurrer, 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 itself," and that " to allow a secret agreement in oppo- sition to the plain import of a covenant running with the land, to control and annul it in the hands of a bona fide assignee, would be a fraud upon such assignee which the law would not tolerate," and in the subsequent case of Greenvault v. Davis,^ this decision was approved, and it was held that although as between covenantor and 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.^ So, too, in a case before the New York Court of Chancery, where a certain bond was determined to be, in equity, a re- lease of a covenant of warranty, it was held that as there was nothing in the case to show that the purchaser from the covenantee was apprised of that equitable release, he and those claiming under him could not be deprived of the bene- fit of the covenant,* and the doctrine of these cases has been very recently recognized and applied in others.^ 1 10 Wendell, (N. Y.) 180. Hunt v. Orwig, 1 7'B. Monroe, (Ken.) 24 Hill, (N.Y.) 643. 84. In Alexander v. Schrieber, 13 3 But see Martin v. Gordon, 24 Missouri, 271, L'Esperance,theowner Georgia, 636, infra. of a large tract, gave a deed of trust ■* Kellog V. Wood, 4 Paige's Ch. R. (in effect a mortgage), to Chouteau, 578, 616. and then sold several lots to Alexan- * Brown v. Staples, 28 Maine, 583 ; der, who subsequently conveyed to FOR TITLE RUN WITH LAND, ETC. 871 But, although a purchaser may not be affected by equities existing between the covenantor and covenantee of vi^hich he has no notice, yet it would seem that a release of such cove- nants as run with the land, given by the covenantee while still the owner of the land would, at common law, be a bar to an action brought upon those covenants by a subsequent pur- chaser from him.^ It has, however, been suggested in a Schrieber, by deed containing im- plied covenants from the words " grant, bargain, and sell." (See as to this, the case of Alexander v. Schrieber, , 10 Missouri, 460, and infra, Chapter X.) Schrieber mort- gaged the property by deed of trust, under which it was sold and pur- chased by Heisterhagen, who after- wards commenced a suit at law in the name of Schrieber against Alexan- der, pending which, Alexander ob- tained from Chouteau a release of the mortgage. Judgment was however recovered against him for the amount of the consideration-money, and af- firmed by the Supreme Court (see 10 Missouri, 460). After the affirm- ance, Alexander having applied to Schrieber (the nominal plaintiff and original covenantee), " and obtained a paper from him professing to re- lease the damages recovered, so far as he rightfully could release them,'' (see as to the effect of such a release infra), filed a bill in equity to enjoin the judgment, alleging the above facts, and that at the time of Schrie- ber's purchase from him, the former was aware of the mortgage, and it was agreed between them that Alex- ander should, at a convenient time, procure its release, and in that case should not be liable on bis covenant. The Court in dismissing the bill, said : " We are of opinion that un- der the purchase of Heisterhagen, he acceded to all the rights imparted in the conveyance of Alexander to Schrieber, including the use of his name in the suit at law, and that if any private understanding between the latter had been ever proven, it would not have been binding upon the conscience of the former, unless brought home to him at or before the period of his purchase. What the rights imparted by that conveyance were, has been previously decided by this Court, in a suit at law between the same parties, concerning the same transaction (10 Missouri, 460), and although the release by Chouteau might perhaps have been admissible enough in that suit, under proper pleadings, to have reduced the dam- ages to a sum merely nominal, that consideration furnishes to our minds but an additional reason why it can- not be availed here. It may not be amiss to add that in the applicar- tion (as above) of the general prin- ciples by which this case must be governed, any suggestion of seeming hardship or inequality between the parties is, to our minds, sufficiently answered and repelled by the prompt and continuous ofier of Heisterhagen to reconvey the land to Alexander, upon payment of the judgment at law." As to this, see supra^ p. 76. 1 Thus, in the early case of Mid- 372 EXTENT TO WHICH COVENANTS very recent case in Massachusetts, that there are " peculiar reasons why such a release might be held to be so closely connected with the conveyance of real estate as to become a proper subject of record in the registry of deeds ;"^ and if dleraore v. Goodale, Cro. Car. 503, " the defendant, by indenture, en- feoffed J. S. of siicli lands, and cove- nanted for himself and his heirs with the feoffee his heirs and assigns to make furtlier assurance upon request, which lands J. S. conveyed to the plaintiff, who brings this action, be- cause the defendant did not levy a fine upon the plaintiff's request. The defendant pleaded release from J. S., with whom the first covenant was made, and it was dated after the commencement of this suit ; and thereupon the plaintiff demurred, and all the Court agreed, that the covenant goes with the land, and that the assignee at the common law, or at leastwise by the stat- ute, shall have the benefit thereof; secondly, they held that although the breach was in the time of the assignee, yet if the release had been by the covenantee (who is a party to the deed, and from whom the plain- tiff derives) before any breach, or before the suit commenced, it had been a good bar to the assignee from bringing this writ of covenant. But the breach of the covenant being in the time of the assignee, for not levy- ing a fine, and the action brought by him, and so attached in his person, the covenantee cannot release this action wherein the assignee is inter- ested : whereupon, rule was given that judgment should be entered for the plaintiff." This case was cited with approbation in the recent case of Brown v. Staples, 28 Maine, 503, as deciding that a covenantee, while owner of the land, might release or annul the covenant, and that the land would pass to his grantee dis- charged of its benefit; but the case of Brown v. Staples itself decided no more than that when, after the cov- enant had been annulled, the pur- chaser bought " tvith a knowleilge of the facts, he could not acquire more extensive rights than the covenantee had," but in a very recent case in Georgia it was said, " If the bond had been a release, it would, accord- ing to Middlemore u. Goodale, Cro. Car. 503, have extinguished the cov- nant, and therefore would have pre- vented it from passing to the pur- chaser, and this whether she pur- chased with or without notice of such release;" Martin v. Gordon, 24 Geoi'gia, 536 ; see this case infra. 1 Field V. Snell, 4 Gushing, (Mass.) 50. The Court, in deciding that before agrantee had Incumbered orconveyed the land, he could release his grantor from the covenants for title, so as to make him a competent witness (the same point as was decided in the case just cited), thus considered the ques- tion arising as to the effect upon a subsequent purchase, of recording such a release. " Treating the release as a mere release of an ordinary kind, or writing obligatory," said Dewey, J., who delivered the opin- ion, " it would not be a proper sub- ject for record in the registry of deeds. But as a release of a cove- nant running with the land and at- FOR TITLE RUN WITH LAND, ETC. 373 SO, it would seem to follow that an unrecorded release would be inoperative as against a purchaser without notice ; but in a recent case in Maine, the Court seemed to be of opinion that a release of covenants for title did not come within the registry acts.^ But in 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 seizin, for right to convey and against incumbrances, are, in most of our States, practically deprived of this capacity by being held to be broken, if at all, as soon as made. Hence, the foregoing remarks must be limited in their ap- taohed to a deed already the subject of record, tliere are peculiar reasons why such a release might be held to be so closely connected with the con- veyance of real estate, as to become a proper subject for record in the registry of deeds. If the release ma- terially affects the title and interest in real estate, or any incidents there- with connected, then such instru- ment, thus qualifying or releasing an interest in the estate, or in any covenants connected therewith, that might be a subject of sale and trans- fer as incident to a conveyance of the land, would, by being duly re- corded, give an effectual notice to a subsequent purchaser, as a release or quitclaim of some portion of the land, or of some undivided interest in the estate, or a grant of an easement on the same, of all which latter instru- ments the record would be effectual notice to a subsequent purchaser. These considerations will have their proper weight, whenever a case arises upon such covenant of warranty, by 32 an action instituted in favor of a pur- chaser taking a conveyance after his grantor has executed such release, and after the release is recorded. It will, in such case, become necessary to decide the question, whether such release, duly executed and recorded in the registry of deeds, will effectu- ally discharge the grantor from the covenant of warranty, as respects an assignee of the land taking the same subsequently." 1 Littlefield v. Getchell, 32 Maine, 392. The Court expressed the opin- ion that " purchasers are not entitled to regard the registry as affording information respecting the rights of action on covenants contained in the deeds recorded," though the decision itself was limited to the point that a release to a covenantor, by a pur- chaser from him, would be good as between themselves, so as to render the former a competent witness for the latter. 2 Supra, p. 336. 374' EXTENT TO WHICH COVENANTS plication to the covenants for quiet enjoyment, for further assurance and of warranty. But as respects the three covenants first named, there still remains to he considered the effect of their release, or of a conveyance of the land, upon the liabilities and rights of the parties, and as the same principles apply equally to each of these covenants, it will be understood, in order to avoid repetition, that when the covenant for seizin is spoken of, the same remark applies to the covenant of right to con- vey and against incumbrances. As the breach of the covenant for seizin is, in many of our States, held to occur at the moment of its creation, it follows that in those States a subsequent assignment of the land conveys to the purchaser no legal right to sue upon the broken covenant. That right remains in the covenantee and his personal representatives.-* But in case he has parted with the land, if, notwithstanding such conveyance, he can, irrespective of the condition of things between his purchaser and himself, recover damages measured by the considera- tion money, it would follow that the possession of a cove- nant for seizin gave much greater rights than the posses- sion of a covenant of warranty, and that one who had sold the land and received the consideration therefor, could, in addition, recover back the consideration he had himself paid; and that, in case he had sold without covenants, without any liability over on his part.^ And if, on the other hand, 1 The provisions of the Revised ing mortgage, pleaded that the plain- Statutes of Maine, cited supra, p. 343, tiff had conveyed the land to a third of course except that State from these party who had before the suit was remarks. brought released the defendant from 2 Thus in Davis v. Lyman, 6 Con- all liability on his covenant ; but the necticut, 249, the defendant, who had Court held that the covenant beint' sold land with a covenant against broken as soon as made did not pass incumbrances, upon being sued by with the land to the purchaser, and his covenantee who averred as a that he, therefore, had no rin-ht to breach the existence of an outstand- release it, and, moreover, that the FOR TITLE RUN WITH LAND, ETC. 875 his technical right of action be allowed to yield him no more than nominal damages, it would seem that for all practical covenantor's right to recover dam- ages could not be affected by his having parted with the land. It would seem, however, that as the plaintiff had in this case paid nothing towards the extinguishment of the mortgage his damages should, accord- ing to the weight of authority, (su- pra, p. 134,) have been but nomi- nal. In the recent case, however, in Massachusetts, of Cornell v. Jack- son, 3 Gushing, 509, where one who had received a covenant for seizin, brought suit upon it after he had parted with the land to which it related, " The defendant's counsel maintained," said Wilde, J., who delivered the opinion of the Court, " that the plaintiff is entitled to nom- inal damages only, because, as it is said, he has suffered no actual dam- age, as he has conveyed, by a deed of release to Jackson, all his right and title to the land in dispute without any covenant of warranty, except as to any person claiming from, by, or under him. But we are of opinion that such a,rule of damages cannot be maintained on principle or author- ity. In the case of Medbury v. Wat- son, 6 Metcalf, 246, it was proved that one of the plaintiffs had sold out his share of the property in dispute for the same amount which he gave ; and it was objected that he, having sustained no loss, could not maintain the action for the defendant's fraud- ulent misrepresentations, by which the plaintiffs were induced to pur- chase of him the property in ques- tion, at a price much exceeding its value. But it was decided that he was entitled to recover for the injury occasioned by such fraud, whatever disposition he afterwards made of the property, whether he sold it, or gave it away. So, in the present case, the plaintiff had a right of action on the breach of the covenant of seizin, im- mediately after the . delivery of the deed ; and his release or sale of the property, years after, could not affect the amount of damages he was before entitled to recover. The plaintiff has a most just right to recover of the defendant, for the purpose of giving the amount recovered to Jackson or not, at his pleasure." It would seem, however, that the grounds of this decision must rest rather upon their own intrinsic merit than upon any analogy to the case of Medbury c. Watson. That was an action for fraudulent representations, and the Court held that " what the party sold the property for, is not the rule by which to measure the dam- ages I otherwise, it might make the question of fraud to depend upon the rise or fall of the property in the market, upon fluctuations in the value, arising from causes in no way connected with the fraud complained of. As well might an underwriter contend that the insured has sus- tained no injury, because his goods, though partially damaged by a peril insured against, have sold, even in their damaged state, for more than their actual cost." In the case of Keith V. Day, 15 Vermont, 668, moreover, a purchaser took from his vendor a covenant against a previous incumbrance, being a rent payable 8J6 EXTENT TO WHICH COVENANTS purposes, the covenant for seizin is as useless to one who has parted with the land to which it related as a covenant of warranty,-'^ and as the assignee of the land is, by the operation of the technical rule referred to, disabled from suing on the covenant, it becomes useless for all purposes, except so far as the assignee may be allowed to sue upon it in the name of the covenantee or his personal representa- tives. Such a dilemma seems, however, necessarily to result as a consequence of separating the nominal from the substantial breach of the covenant for seizin. It becomes necessary, therefore, in this connection, to consider the extent to which the assignee may obtain the benefit of these covenants, by a suit in the name of his assignor. It is familiar that although, by the common law, choses in action were incapable of assignment, yet that such assign- ments were from an early day recognized and enforced by courts of equity, who adopted in this particular the rule of the civil law,^ and, in modern times, the common-law courts have, to a great extent, acted upon the same principle,^ and to the University of Vermont. He covenant against incumbrances. It then resold part of the land with a was held that the covenant being covenant against all claims, " except broken as soon as made, he was indeed a yearly rent to the University," and entitled to damages, but they could be it was held that he could not recover no more than nominal, as the defend- from his vendor damages measured ant would be still liable on the cove- by the whole value of the incum- nant of warranty to the evicted pur- brance, as he was under no liability chaser. to his own vendee by reason of it, 2 See passim, Story's Eq. Juris, having excepted it from the opera- §1047, &c.; 2 Spence's Id. 850, &c. ; tion of his covenants. note to Row v. Dawson, 3 Leadincr 1 Such was the decision in Wyman Cases in Equity, 332. V. Ballard, 12 Mass. 304, where land 3 Master v. Miller, 4 Term, 340; which was subject to a mortgage vfas Welch v. Mandeville, 1 Wheaton, sold with covenants against incum- 235, and note, S. C. 5 Id. 277; brances and of warranty. The pur- Wheeler v. Wheeler, 9 Cowen, (N. chaser, having resold the property to Y.) 34. one who was evicted, sued on the FOR TITLE RUN WITH LAND, ETC. 377 although they still hold it necessary that the original party shall appear upon the record as the plaintiff", yet they permit his name to be used by the party actually damnified and protect the latter from any fraud upon his rights committed by the former,^ and hence (as in the cases just referred to),^ a release from the party originally entitled to the benefit of a contract, to the party originally bound by it, made after notice to the latter of its assignment to a third person, is not, at the present day, either in a court of law or equity suffered to defeat the rights of the assignee in an action brought by him against the original debtor.^ And, as the obstacle which prevents an assignee from suing on these covenants is merely technical, it may be pre- sumed that if the American courts deem themselves re- strained by authority from getting over it, and adopting the English rule, they will at least be prepared to sustain a suit in the name of the original covenantee, for the benefit of those claiming under him by purchase.* This must be the case if an assignee of the land be held to be an equitable assignee of the covenant, and as such must certainly be his position when the covenant is expressly assigned at the time of the conveyance, it would seem that the mere conveyance 1 Legh V. Legh, 1 Bos. & Pul. Pickering, (Mass.) 316 ; Andrews v. 447 ; Manning v. Cox, 7 Moore, 617 Eiddell v. Riddell, 7 Simons, 529 Crooker ^. Jewell, 29 Maine, 530 Beecker, 1 Johns. Cas. 411 ; Ray- mond V. Squire, 11 Johns. 47 ; Suy- dam V. Jones, 10 Wendell, (N. Y.) Blin w. Pierce, 20 Vermont, 25 ; John- 180; Phillips v. Clagget, 11 Mees. son V. Irby, 8 Humphrey, (Tenn.) & Welsh. 84; Thornton v. Court, 654 ; Dickinson u. Hoomes's Admrs. supra, p. 365. 8 Grattan, (Va.) 407; Statute of 4 As was done in the cases of Col- Maine, Rev. Stats, c. 115, supra, Tp. lier v. Gamble, 10 Missouri, 467; 343 ; note to Row v. Dawson, supra, Lawless v. Collier, 19 Id. 480, supra, p. 376. p. 71; Alexander v. Schreiber, 13 2 Supra, p. 367. Id. 271, supra, p. 370 ; and see the 3 Cowan V. Shields, 1 Overton, remarks to this effect in Clark v. (Tenn.) 314 ; Dunn v. Snell, 15 Swift, 3 Metcalf, (Mass.) 395. Mass. 485 ; Eastman v. Wright, 6 32* 378 EXTENT TO WHICH COVENANTS of the land may be thought to imply a transfer of the cove- nant, on the general rule that the assignment of the prin- cipal draws with it the accessory. So far, therefore, as the covenants for seizin and for right to convey are concerned, these principles may, perhaps, serve to obviate the inconveniences occasioned by the American rule that these covenants are incapable of being taken ad- vantage of by an assignee. The name of the original cove- nantee might appear as plaintiff' on the record, and the injury to the party actually damnified be regarded as form- ing the measure of damages.-^ But as respects the covenant against incumbrances, a difficulty might, it is apprehended, be presented as to the pleadings. In declaring upon a breach of the two former covenants, it is sufficient to negative their words generally,^ but, upon the latter, it is necessary to set forth the particu- lar manner in which the incumbrance has been the occasion 1 The exercise of equitable juris- vendor, it was referred to a Master diction in sustaining tlie riglits of an to inquire whether the testator had assignee, when a technical difficulty executed any indemnity against the stood in his way, has already been claim of dower, and if so, whether well exemplified by the case in Thorn- the indemnities were an existing ton V. Court, cited supra, p. 365. In charge capable of being enforced by Kiddell v. Kiddell, 7 Simons, 529, a any and what persons against the testator covenanted, before his death, testator's estate ; and it was objected for valuable consideration, to surren- that the covenants for title of the der certain copyhold land to the lord latter were covenants in gross, by of the manor for the use of the pur- reason of not being annexed to any chaser, and covenanted with the lat- estate at the time they were made, ter that he should quietly enjoy, and and therefore incapable of passing that free from all incumbrance. (The to an assignee ; but the Court held student will, of course remember that that even if this were so, yet equity this was the usual form of alienation would compel the covenantee to al- of copyhold lands.) The next day low his name to be used in an action the surrender was made, and some to be brought by a purchaser from months afterwards the purchaser re- him. See also Murray v. Jayne, 8 sold, covenanting to surrender in Barbour's S. C. (N. Y.) 612, cited similar manner. Dower having been supra, p. 299. claimed by the widow of the first 2 See supra, p. 53. FOR TITLE RUN WITH LAND, ETC. 879 of damage to the purchaser, and where, therefore, this dam- age has not heen suffered hy the plaintiff" on the record, but by one claiming under him by assignment, and to whose use the action is brought, it is conceived that it might be difficult to frame the declaration so as to come within the rule referred to.^ As the right to sue in the name of the original cove- nantor is, moreover, a mere equity, the consequences of a release of a covenant for seizin by the original covenantee while still the owner of the land, would seem to be more serious in their effect upon a subsequent purchaser from the latter, than in the case of a covenant of warranty, whose benefit passes, if at all, as a strictly legal right, and not as a mere equity. For the former covenant, being broken as soon as made, is at once a chose in action, and as such, even if transmissible at all to an assignee, must be taken by him subject to all the equities between the original parties ; and it would, therefore, seem to follow, that a release of a cove- nant for seizin, made by the covenantee, honil fide and for a valuable consideration, and before the covenantor has notice of the conveyance of the land, will protect the latter against all claiming under the covenantee, whether with or without notice of such release.^ It is suggested, however, that, 1 Thus in the case of Thornton v. plaintiff in this suit is entitled to such Court, cited supra, p. 365, the plain- costs, and would have recovered them tiif's counsel, in arguing that his at law if he could have sued in his client had no remedy, at law, under own name." the circumstances of the case, urged, 2 Hence it was held, in the recent that " in an action at law in the name case of Proctor v. Thrall, 22 Ver- of the mortgagee, the remedy would mont, 262, that where a covenantee, be inadequate ; for in such aotipn, by reason of having received a re- the mortgagee (the nominal plain- lease from the holder of the para- tiff",) could not allege in his declara- mount incumbrance, was thereby dis- tion and therefore could not prove abled from suing on the covenant that he had sustained any costs in against incumbrances, his assignee defending the action of ejectment, to could have no greater rights, and which he was no party. But the hence that equity would not enforce 380 EXTENT TO WHICH COVENANTS upon general principles, such would not be the case, unless the release were for a valuable consideration,^ nor if the covenantee had notice of the conveyance of the land.^ An- an agreement by which, in consider- ation of such release, the releasor should succeed to the rights of the covenantee. 1 The following extract from the notes to the case of Row v. Dawson, 3 Leading Cases in Equity, 376, may be referred to as illustrative of this. " ' Courts of law,' said Story, J., in Welch V. Mandeville, 1 Wheaton, 233, ' take cognizance of the assign- ments of choses in action, and afford the assignee every protection, not in- consistent with the established prin- ciples and modes of procedure, which govern tribunals proceeding accord- ing to the course of common law. They will not, therefore, give effect to a release, procured by a covinous combination with the assignor, to in- "terfere injuriously with the conduct of any suit brought to enforce the right passed under it.' In accord- ance with this doctrine, it is thor- oughly well established, both in this country and in England, that a re- lease given by an assignee after the assignment of a debt, is fraudulent on his part, and will be void on that of the debtor, if accepted by him after notice of the assignment. John- son V. Holdsworth, 4 Dow's P. C. 63 ; Payne v. Rogers, 1 Douglass, 407; Legh v. Legh, 1 Bos. & Pul. 447 ; 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 U.Richardson, 1 Younge & Jervis, 362; Phillips v. Claggett, 11 Mees. & Wels. 84; Chesnut HiU Reservoir Co. v. Chase, 14 Connect. 123; Bulkley v. Landon, 3 Id. 83; Strong V. Strong, 2 Aikens, 373 ; Bartlett v. Pearson, 29 Maine, 9 ; Parker v. Kelly, 10 Smedes & Marsh. 84; Webb v. Steele, 13 N. Hamp. 230 ; Anderson v. Miller, 7 Smedes & Marsh. 586 ; Andrews c. Beecker, 1 Johns. Cases, 411 ; Blake v. Bu- chanan, 22 Vermont, 548." 2 The above remarks would, of course, apply to any covenant, re- leased after breach ; and the lan- guage of the Court, in Cunningham V. Knight, 1 Barbour's S. C. (N. Y.) 405, would seem to agree with the position taken in the text. The de- fendant, in an action on a covenant of warranty given by him, offered as a witness, a prior vendor who had also conveyed the land with a similar covenant and to render him compe- tent, executed to him a release of the covenant ; and the Court, in holding the witness competent, said, " At the time of giving the release, the de- fendant had a contingent right of action against the witness. If he should be evicted by the result of this suit, that right would become absolute, and would be forever dis- charged by this release. The cove- nant could never pass to any subse- quent purchaser. If, however, the recovery should be in favor of the defendant in this suit, then, the witness 'would probably remain liable on his covenant to subsequent owners, but that very liability would rather tend to interest him against the defendant, inasmuch as a recovery against the FOR TITLE RUN WITH LAND, ETC. 881 other consequence of holding the covenant for seizin to be broken as soon as made would seem to be that after the lapse of twenty years from the execution of the deed, the common-law presumption that the covenant had been satis- fied or released would arise,^ even if the covenant did not come within the letter of any local statutory enactment.^ While with respect to such covenants as run with the land, the limitation would not commence to run until there had been an actual breach.^ There is not room for the same conflict of authority as respects the right to take advantage of the covenant for further assurance, as exists between the English and Amer- ican cases with regard to the covenant for seizin, as although it is sometimes said that the former covenant is broken by a demand and refusal to execute the deed of further assurance, yet it seems more proper to say that such a demand and refusal are necessary to the support of the action, but that the breach is a continuing one, even after that time, until the determinate damage has been suffered. In King v. Jones,* the Court held, that if the ultimate damage had been sus- defendant, after the giving of the tive that it was not even mentioned release, could not" affect the witness in the opinion of the Court, injuriously, but would forever ter- i Stewart v. West, 2 Harris, (14 minate his liability.'' In this case, Penn. State R.) 338, 339 ; Heath v. apart from the probable fact that the Whidden, 24 Maine, 383 ; Jenkins release was not for value, it will be v. Hopkins, 9 Pickering, (Mass.) 544. perceived that it was executed after 2 Clark v. Swift, 3 Metcalf, (Mass.) the releasee had notice of the convey- 390; Rev. Stats, of Massachusetts, ance of the land by his releasor. So, c. 120, § 7 ; Webber v. Webber, 6 in Alexander v. Schreiber, 13 Mis- Greepleaf, (Me.) 138; Pierce v. souri, 271, cited swpra, p. 370, it will Johnson, 4 Vermont, 255; Bird v. be observed, that when the release Smith, 3 English, (Ark.) 368. was given, the covenantor had notice • 3 Stewart v. West, Heath v. Whid- that his covenantee had parted with den, supra ; 9 Jarman's Conveyanc- all his interest in the land, and the re- ing, 402. lease itself was, therefore, so inopera- "' 5 Taunton, 418, supra, p. 338. 38^ EXTENT TO WHICH COVENANTS tained by the ancestor, that is, if he had lost the estate for want of the further assurance, he alone, or his executor after his death, would have the right to sue ; but that " the ulti- mate damage not having been sustained in the time of the ancestor, the action remained in the heir (who represents the ancestor in respect of land, as the executor does in re- spect of personalty,) in preference to the executor," and there seem to be no American cases which have denied to an assignee of the land the benefit of a covenant for further assurance, even although the refusal may have been made before the assignment. But as the remedy under the cove- nant is usually sought in a court of equity, it is probable that no difficulty would arise upon this point. The covenant of non-claim has already been noticed in a previous chapter.^ It was there seen, that no distinction has, as a general rule, been taken between that covenant and a covenant of warranty. In a recent case in Maine,^ however, the application of the general rule that this cove- nant 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 opposed to legal principle, that it was deemed necessary to deny to an assignee the benefit of the covenant of non-claim, and previous decisions,^ opposed to such a conclusion, were, therefore, overruled, and the law as thus held hjs been recognized by the later authorities in that State.* It has been already said that covenants which possess the capacity of running with the land do not pass by direct 1 Supra, p. 222. . leaf, 99 ; White u.Erskine, 1 Fairfield, 2 Pike V. Galvin, 29 Maine, 187 ; 306. the dissenting opinion of Wells, J., is ^ Partridge v. Patten, 33 Maine, reported in 30 Maine, 539. 483. See these cases more partiou- 3 Fairbanks v. Williamson, 7 Green- larly considered iu the next chapter. 383 operation of assignment, but as annexed and incident to the land to which they relate, and one of the most constant arguments made use of in the cases cited in a former part of this chapter,^ in order to prove a want of capacity of the covenant for seizin for running with the laifd, has been that if no land passes to the assignee, the covenant, which only passes as an incident to the land, must alike fail of assignment. However forcible this argument may be as applied to the covenant for seizin, it will be observed that it possesses equal force when applied to the covenants for quiet enjoyment and of warranty, and must lead to the alarming consequence that when a purchaser, by reason of the total loss of the land, most needed the help of his covenants for title, he would be utterly without aid from them. The question thus presented deserves con- sideration. The argument is not wanting in authority to support it. In the early case of Noke v. Awder,^ John King had made a lease for years to Awder, the defendant, who conveyed it to one Abel, and covenanted that he and his assigns should peaceably enjoy it without interruption. From Abel, the lease came by assignment to the plaintiff, who, being ousted by one Robert King, brought an action upon the covenant. The case was on the point of being adjudged for the plain- tiff, when Sir E. Coke, who was counsel for the defendant, raised this dilemma : in order to entitle the plaintiff to re- cover, he must show that he was ousted by a lawful and paramount title, it being well settled that the covenant is not broken by a mere tortious entry of a stranger ; ^ and if he show the eviction to be under paramount title, then nothing passed from the covenantor but a lease by estoppel, and as no estate passed, the subsequent assignee, who took nothing, of course lost the benefit of the covenant, which 1 5^«pra, p. 336. 2 Cro. Eliz. 417. ^ Supra,^.\^b. S84 EXTENT TO WHICH COVENANTS could only pass as an incident of the estate ; this argu- ment was successful, and the judgment for the plaintiff was arrested. So, in the more recent case of Andrew v. Pearce,-* a tenant in tail made a lease for ninety-nine years, with a covenant for quiet enjoyment. After his death, the lessee, being still in possession, assigned the lease to the plaintiff, who, being evicted by the party entitled to the estate after the death of the tenant in tail, brought his action on the covenant against the executor of the original lessor ; and the Court of Common Pleas held that the lease having become absolutely void by the death of the tenant in tail, its assignment by the lessee to the plaintiff had no operation whatever. " He could neither assign the lease," said Mans- field, Ch. J., " nor any interest under it, because the lease was gone. What right of any sort had the assignee 1 If anything, it could only be a right of action on the covenant, and that could not be assigned by law. As the person who made the assignment had no interest in the premises, the assignment itself could have no operation. Consequently, there is no ground upon which the present action can be maintained." ^ The remarks of Mr. Hare upon the doctrine of these cases are eminently correct.^ " The consequences of this doc- trine are very important at the present day. No inconven- ience could arise from it under the old common law, except in the case of terms for years, where we have seen its 1 4 Bos. & Pull. 162. latter, the estate of the assignee did 2 The distinction between this case not become void until after the as- and the recent one of Williams v. signment, and, consequently, there Burrell, 1 Com. Bench, 402, is, that was a chattel interest which passed in the former the decision was ex- to the assignee and which was suffi- pressly put upon the ground that the cient to support the covenant ; Lewis lease had become absolutely void by i-. Campbell, 8 Taunton, 715. the death of the lessor before the 3 1 Smith's Lead. Cases ; Note to assignment to the plaintiff. In the Spencer's case. FOR TITLE RUN WITH LAND, ETC. 385 effects in defeating a recovery in Noke v. Awder. But it did not apply to conveyances of freeholds ; for as they were conveyed by livery of seizin, an actual estate, although com- mencing by tort, was, in all cases, transferred to the first feof- fee, 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 feoSee, and carrying with it all war- ranties and covenants made by the original feoffor. But in conveyances taking effect under the statute of uses, as must all those which are intended to pass an estate of freehold, and are unaccompanied by livery, nothing passes to the ven- dee, save only the estate actually and legally possessed by the vendor. Of course, therefore, in the very case in which the title to an estate totally fails, and in which the pur- chaser who has taken it on the security of the covenants for title entered into by a previous vendor most requires the assistance of the principle which gives to an assignee the right to sue on the engagements for indemnity given to his assignor, he is left, under the operation of the doctrine of Noke V. Awder as applied to our modern system of con- veyancing, wholly without remedy." ^ 1 Such was the decision in North quiet enjoyment without hindrance Carolina, in the case of Nesbit v. from Mary the daughter, and that if Monto-omery, 1 Taylor, 86, where she should at any time enter into the Cranston had, in consideration of premises so as to dispossess McCon- £10 paid by Hugh Montgomery, nell, or in any way nullify the sale, father of Mary Montgomery, then they would repay double the pur- under age and the wife of Arthur chase money with interest. There Newman, conveyed a lot of ground was also a covenant for further as- to the said Mary. Some years after, surance to be executed by the said Hugh Montgomery and wife, in con- Mary when she should arrive at age. sideration of £60 paid to them for McConnell afterwards conveyed one the use of Ihe daughter, conveyed half of the land to Nesbit, who, being the premises by deed of bargain and evicted by Anthony and Mary New- sale to McConnell, covenanting for man, sued the executors of Hugh 33 • 386 EXTENT TO WHICH COVENANTS Nor is it possible to meet this difficulty by the sugges- tion that the covenantor is estopped from saying that no Montgomery. A verdict having been found for tlie plaintiff, a motion was made in arrest of judgment, on the ground that the covenants in the deed from Hugh Montgomery to Mc- Connell were covenants in gross and therefore not assignable. And Tay- lor, J., in delivering the opinion of the Court arresting the judgment said, " It may be laid down as a rule without any exception, that a cove- nant to run with the land and bind the assignee must respect the thing granted or demised, and that the act covenanted to be done or omitted must concern the land or estate con- veyed. But where it appears on the face of the declaration that the de- fendant's testator, who sold this lot, neither -had nor pretended to have any title to it, that, on the contrary, Mary his daughter had the complete seizin under the deed from Cranston, that the testator having conveyed no title to McConnell, the plaintiff could, consequently, derive none from him, it may be asked what is there to cre- ate any privity between the parties ? The maxim transit terra cum onere presupposes a transfer of the land, and when that actually takes place it forms the medium of a privity be- tween the assignees. Unless, there- fore, we make a presumption against the plain statements in the declara- tion, the title of the lot never ceased in the daughter Mary, from the time Cranston conveyed to her. Suppose the father and mother had entered into the covenants contained in the deed, by a separate instrument, un- accompanied with any conveyance of the land, no one would pretend that an assignee should take the ben- efit of such a contract. Then, can the case be materially altered by an- nexing these covenants to a deed of bargain and sale, which being a con- veyance under the statute of uses, transfers only what the bargainor might rightfully convey ? For the declaration shows that rightfully he could convey nothing. If one man covenants that another shall quietly enjoy, or obtain a conveyance for an estate which is owned by a third, this binds the covenantor and his executors and administrators to the covenantee, but cannot extend to the assignee of the latter. Nor can I conceive that the law is different when a man sells an estate and makes the same covenants, provided it ap- pears upon the declaration that he had no right. In both cases the priv- ity is wanting, which forms the basia of reciprocal remedies to the par- ties.'' The plaintiff, however, subse- quently filed a bill in equity, upon which the Court referred the case to a Master to take an account of assets and of damages, to be measured by the consideration-money, the clause in the deed as to this being regarded as a penalty merely ; Nesbit v. Brown, 1 Devereux's Eq. (N. Car.) 30. The doctrine upon which the cases which have been cited are based, was recognized in Whittin v. Peacock, 3 Bing. N. C. 41 1 ; Pargeter v. Harris, 7 Common Bench, 708; Green D.James, 6 Mees. & Welsby, 656.' In Allen v. WooUey, 1 Blackford, (Ind.) 149, one leased a fulling mill for a year, cove- FOR TITLE RUN WITH LAND, ETC. 387 estate passed by his deed ; for it will be remembered that the plaintiff must, in his declaration for a breach of the covenants for quiet enjoyment or of warranty, aver the eviction to have been caused by one lawfully claiming under paramount title,^ and he cannot therefore contradict his own nanting for quiet enjoyment, and the lessee covenanting to pay the rent and to keep it in repair, and on the same . day the lessee assigned the lease to the plaintiff, who brought suit against the lessee for not repairing, and it was held that if the lessor had assigned the reversion, the covenants would have passed with it to the assignee, but as he only assigned the lease it- self, there was no land to which the covenants could be attached. And in Beardsley v. Knight, 4 Vermont, 471, it was held that in order to give to an assignee the right of suit on the covenants in the deed to his assignor, the conveyance by the latter must be sufficient to pass the legal title, and that the covenants would not pass, if the deed, by reason of con- taining a scroll instead of a seal, was insufficient for that purpose. Notwithstanding some expressions in Randolph v. Kinney, 3 Randolph, (Va.) 396, the case itself must not be deemed to be an authority against the exercise of equitable jurisdiction under such circumstances. The bill was filed by a covenantor against his covenantee and the heirs of a prior covenantor, as a bill of peace and quia timet, and was dismissed by the Court because no grounds had been laid for relief under either head. The fact, also, of there having been an "ad- verse possession " seems to have been, to some extent, relied on by the Court, who observed, " A disseizor may convey and warrant the land, for there may be a fee simple in a disseizin. But a person against whom there is an adversary possession can- not make a warranty which will pass to an assignee, because he cannot convey.'' In the recent case of Dick- inson V. Hoome's Admrs., 8 Grattan, (Va.) 363-441, the Court seemed to be of opinion (p. 403), that it was not necessary that any estate should pass from the covenantor to the cove- nantee in order that the covenant should pass to an assignee. The case was one of a devise to six children, and should any die without issue liv- ing at his death, his estate should be divided equally among the survivors. One of these devisees conveyed to a purchaser, the others joining in a cov- enant in the deed to warrant and de- fend the land against themselves, as contingent devisees under their father's will, and all claiming under them. The purchaser resold the land to one against whom the children of one of these devisees recovered an undivided share under proceedings in partition (1 Grattan, 302), and it was held that the covenant of their father would pass to the second pur- chaser, so as to entitle him to an in- junction restraining them from pro- ceeding with their partition. 1 Noke tt. Awder, supra, &c. ; see the cases cited, supra, p. 182. 388 EXTENT TO WHICH COVENANTS averment in order to avail himself of the defendant's es- toppel. In order, therefore, to avoid these consequences, a decis- ion was made in New York in the case of Beddoe's Exec- utors V. Wadsworth,^ which, though it may be unsustained by previous authority, is yet supported by strong grounds of convenience, and has been followed by subsequent de- cisions. That case determined that although the title itself might wholly fail, yet if a possession under claim of title had passed to the assignee, he took a sufficient estate to carry with it the covenants for quiet enjoyment and of war- ranty. It was said by the Court that no case in that State had been produced " which denies that these covenants pass where the possession merely goes from one to another by deed, and there is afterwards a total failure of title ; but there are several to the contrary.^ Nor when we take the word estate in its most comprehensive meaning, can it be said there is none, in such a case, to which the covenant may attach. It is said by Blackstone to signify the condi- tion or circumstance in which the owner stands with re- spect to his property ; ^ and a mere naked possession is an imperfect degree of title, which may ripen into a fee by neglect of the real owner. It is, in short, an inchoate ownership or estate, with which the covenants run, to secure it against a title paramount ; and, in that sense, is assign- able within the restriction insisted upon. It is said, in sev- 121 Wendell, (N. Y.) 120, per incidentally. Their point is that an Cowen, J. intermediate vendor cannot, in re- 2 Those cited by the learned Judge spect of his liability upon the cove- were Withy u. Mumford, 5 Cowen, nant which he himself has given, re- (N. Y.) 137; Garloek v.- Gloss, Id. cover of a prior vendor, without first 143 ; Markland v. Crump, 1 Dev. & making good the damages of the party Batt. (N. Car.) 94 ; Booth v. Starr, evicted. See supra, p. 359. 1 Connect. 244, 248. These eases, ^ 2 Blacks. Comm. 103. however, do not decide this, unless FOR TITLE RUN WITH LAND, ETC. 389 eral cases, that the covenants of warranty and quiet enjoy- ment refer emphatically to the possession, and not to the title} The meaning is that however defective the title may be, these covenants are not broken till the possession is dis- turbed. When the latter event transpires, an action lies to recover damages for the failure, both of possession and title, according to the extent of such failure." In Massachusetts, the case of Slater v. Rawson^ was decided nearly at the same time as Beddoe's Executors v. Wadsvvorth. A conveyance had been made with covenants of good right to convey and of warranty, to one under whom the plaintiffs claimed as assignees, through several mesne conveyances. They yielded to an ouster under title para- mount, which they clearly showed, but failed, in an action against the original covenantor, to prove any actual occu- pancy or seizin of the land by him at the time of his enter- ing into the covenants. On this ground the verdict for the plaintiffs was set aside and a new trial ordered. " To sup- port 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 such seizin the grantee acquires no estate and has no power to transfer to a subsequent purchaser the covenants in his deed, because, as no estate passes, there is no land to which the covenants can attach. If, therefore, the defendant, at the time of the making of his deed, was not seized, then the covenant of warranty did not pass to the plaintiffs as assignees, and the only liability of the defendant is upon his covenant of seizin, which covenant, for the reasons already stated,^ is wholly unavailable to the plaintiffs." On a sub- 1 Waldron v. McCarty, 3 Johnson, 3 That is, because the plaintiffs 471, per Spencer, J.; Kortz v. Car- sued as assignees of the original cov- penter, 6 Id. 120. ■ enantee. 2 1 Metcalf, (Mass.) 456. 33* 390 EXTENT TO WHICH COVENANTS sequent trial, however/ the plaintiffs gave evidence that both the covenantor and his father had exercised acts of owner- ship over the property, had claimed it as their own, been upon it, cut timber, &c. Although at nisi prius the Court seemed to be of opinion that these acts, being mere acts of trespass upon uninclosed wild land, would not operate as a disseizin of the true owner, yet a verdict was taken for the plaintiffs, and, upon a motion for a new trial, the Supreme Court held that whatever might be the distinction between disseizin and dispossession, there was, according to modern authority, no legal difference between seizin and possession, nor was it necessary, it was said, to decide this question, " for if the defendant was in possession, when he conveyed, claiming to hold the whole land conveyed, he had a good right to convey his title, whatever it was.^ His estate passed by his deed to the grantees, and all his covenants were binding ; " and upon the familiar doctrine, that, al- though an actual possession may not amount to a disseizin as against the lawful owner, yet it will be good as against a mere stranger, it was held that " the defendant had ac- quired, by possession and occupation, a legal though not an indefeasible title to the land in question. He was lawfully seized and possessed of it against all the world, the lawful owner only excepted. His title, therefore, by his grant passed to his grantees, and from them and intermediate conveyances to the plaintiffs, with the covenant of warranty annexed, and for the breach of that covenant the plaintiflts are well entitled to damages," and judgment was therefore entered upon the verdict.^ In very recent cases in Mis- 1 Slater v. Rawson, 6 Metcalf, 3 The recent decision in New York (Mass.) 439. of Fowler v. Poling, 2 Barb. S. C. 2 See this doctrine, which is almost Rep. 306, professed to follow that peculiar to some of the New England of Beddoe's Exrs. v. Wadsworth, States, attempted to be explained, but virtually did not. The case was, supra, p. 24 et seq. however, overruled on appeal, 6 FOR TITLE RUN WITH LAND, ETC. S91 souri, moreover, this doctrine has been approved and fol- Barb. S. C. Rep. 166, and the grounds of decision of the cases cited in the text approved, as they were also in the recent case of Dick- inson V. Hoome's Admrs., 8 Grat- tan, (Va.) 399 ; and in the recent case' of Lewis v. Cook, *\.3 firede'll's Law, (N. Car.) 194, the Court, after referring to the facts (which have been already cited, supra, p. 367, in connection with another part of this subject,) said, " The defendant's counsel laid down the position, that a warranty, being a covenant an- nexed to an estate, could not con- tinue longer than the estate, and consequently that when the estate of the plaintiff was put an end to by the heirs of Mrs. Jones at the death of Jones, the warranty was gone. . We admit the position that the war- ranty is gone whenever the estate to which it is annexed determines ; for it is a mere incident of the estate, and the incident cannot continue longer than the principal ; as if there be an estate to A, for life, with war- ranty to him and his heirs and assigns, at the death of A, his estate deter- mines, and the warranty is at an end. This case is put by Lord Coke, and the principle is contained in all the books. The error of the defendant's counsel is in reference to the mean- ing and application of the principle. When does an estate determine ? When it is ' spent' — expires by Hlie terms of its own limitations.' If there is an eviction by title paramount, the estate is, in one sense, at an end, but has not determined, so as to deprive the party of the benefit of his war- ranty; for if so, a warranty would never be of any force or effect. Until the eviction, the party has no use for it, and after that, it is gone. This proposition, certainly, cannot be maintained. " It is not true, that Howerton had only an estate for the life of Jones ; he was seized of an estate in fee. ' The term of its limi- tations,' was to him, ' Ais heirs and assigns ; ' and, notwithstanding the fact that it had an ' infirmity,' and might be put an end to by reason of a defect in the title, still it was a fee simple. It was good until the death of Jones, and then it was only wrong- ful as to the heirs of Mrs. Jones. As to the rest of the world, it was a good fee simple estate. Suppose Hower- ton 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 good against every one except the heirs of Mrs. Jones. Or, suppose Howerton had continued in posses- sion for more than seven years after the death of Jones, can there be a question that he would not then have held a good estate in fee ? This is not consistent with his having an es- tate only for the life of Jones. The truth is (possibly his Honor fell into error by not adverting to it,) Jones purported to convey a fee to Har- rison, and he purported to convey a fee to Howerton, and for the purpose of propping and fortifying this fee- simple estate he binds himself and his heirs in a covenant to Howerton, ' his heirs and assigns,' which is an- nexed to the estate and ' runs with it ' for its protection against an eviction by title paramount." See also the dissenting opinion of Pearson, J., Spruill V. Leary, 13 Iredell, (N. Car.) 892 EXTENT TO WHICH COVENANTS lowed,^ and from the course of decision in Ohio, heretofore noticed, it must, it would seem, be taken to be the law in that State.^ The reasons which, from convenience, may support these cases will readily appear when we consider that it has by no means been settled by that^clas5. of cases of which Noke v. " was o^sidered so entirely an ac- cessory obligation that it could sub- sist only as an incident to some estate in the land, this produced no incon- venience in the ancient system of conveyancing by feoffment and other similar assurances, which operating upon the possession, created by their own force estates de facto (tortious estates as they were called) sufficient to support the warranty and carry it along with the land to all the subse- •quent successors. In the process of time, however, other modes of trans- fer were introduced under the statute of uses, which operated upon the right only, and the personal covenants of title superseded in English convey- ancing the ancient warranty of the common law, which, yielding a re- covery in money instead of land, were for that reason deemed personal cov- enants. . . . The general doctrine of the old law as to the real warranty, that where no estate passes to which the warranty can be annexed the benefit of it does not pass to a subse- quent assignee, admitting it to be ap- phcable to the modern covenants for title, is obviated in cases like the present by the American decisions, that a conveyance by a grantor in possession under a claim of title passes an estate to the grantee suifi- cient to carry the covenants to any subsequent assignee." 2 See supra, p. 339. 419. In the recent case in Georgia of Martin v. Gordon, 24 Georgia, 536, Benning, J., after quoting in full the case of Noke v. Awder, said, " This case has been repeatedly followed by the English Courts down to this day. It has not been followed by the Courts of New York, or those of Massachusetts, or those of some of the other States of the United States, but those Courts, if one may judge from the face of their decisions, seem rather to make the law yield to the case, than the case to the law. Rawle on Covenants, 394 et seq. The power to do this is not given to any Court of this State. The English cases, I think, speak the law of Georgia." The decision, however, sustained the right of the assignee to recover on the covenant of warranty but ap- proved the admission of evidence to show that the real consideration paid to the original covenantor was much less than that mentioned in the deed, Lumpkin, J., in the opinion delivered by him considering that " the result of a careful examination of the authori- ties established that subsequent pur- chasers were affected by the equities between previous parties." See, how- ever, as to this, supra, p. 369. 1 Pickson V. Desire, 23 Missouri, 151 ; Vancourt v. Moore, 26 Id. 92. " Although the conventional warran- ty of the common law," said Leon- ard, J., in the first of these cases, FOR TITLE RUN WITH LAND, ETC. S93 Awder is at the head, what exact amount of interest is suffi- cient to carry with it covenants for title to an assignee ; ^ in other words, how small the estate may be which, passing to an assignee, will vest in him the benefit of these covenants.^ Every liberal construction which can be reasonably adopted should therefore be given in order to avoid the consequences, at the present day, of the technical doctrine of these cases. This doctrine, as has been before said, worked no evil at the period when freeholds were conveyed by feoffment with liv- ery, except with respect to leases. But at the present day it is far different, and when, as is always the case now, a conveyance passes no greater estate than the grantor him- self had, it seems the height of hardship to deny to a subse- quent assignee the benefit of that grantor's covenants, be- cause 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 ; when no estate has passed from him, he is protected y)n this very ground. ^Jf S5^f ^ When, therefore, a grantor has receive^ by virtue of his deed, a possession under color of title, which, if it endure for the length of time required by the limitation acts, will be valid as against all the world, and which possesses all the qualities of an estate as respects capability of passing by assignment, descent or devise, it can scarcely be thought inconsistent with principle to hold that such a possession is sufficient to convey to subsequent assignees the benefit of the covenants for title of the original grantor. 1 Thus in Dickinson v. Hoome's the covenant to an assignee, and the Admrs., 8 Grattan, 374 (cited supra. Court went even further, and seemed p. 391,) it was argued, for the plain- to be of opinion that it was not nec- tiflf, that the contingent interest of essary that any estate should pass one of several covenantors, dependent from the covenantor, upon another of them dying without 2 See note to Spencer's case, 1 issue, was a sufficient estate to carry Smith's Leading Cases, passim. 394< THE OPERATION OF COVENANTS FOR TITLE CHAPTER IX. THE OPERATION OF COVENANTS FOR TITLE BY WAY OF ESTOPPEL OR REBUTTER.-^ The operation of the feudal vrarranty by way of rebutter, was far more efficacious, in every-day use, than by the reno- edy it afforded by means of voucher or a tvarrantia chartce, and upon the effect of this rebutter in its descent upon heirs, the doctrines of lineal and collateral warranty depended. In a former chapter,^ an attempt has been made to sketch the probable origin of collateral .warranty, and to refer to the successive restrifct-ions^ which^ai^liament^ imposed upon it, " until its effect and operation were reduced to so narrow a compass as to become, in most respects, a matter of spec- ulation rather than of use." ^ The obligation of the heir to render to the evicted vassal or donee of his ancestor an estate equal in value to that which the latter had lost, depended upon the condition that he had other sufficient lands by descent from the war- ranting ancestor.* " But, though without assets, he was 1 The student may be profitably 2 ggg supra, Chapter I. p. 6. referred, on the subject of estoppel 3 Charles Butler's note to Co. Litt. generally, to the very able and satis- p. 365 a ; see also his note to p. factory note of Mr. Hare to the S73, for almost the only clear expo- Duchess of Kingston's case, 2 Smith's sitiou to be found of the law of war- Leading Cases, from which many ranty. of the remarks and opinions ventur- 4 Co. Litt- 374 b. ed in this chapter have been sug- gested. BY WAY OF ESTOPPEL OR REBUTTER. 895 not bound to insure the title of another, yet in case of lineal warranty, whether assets descended or not, the heir was per- petually barred from claiming the land himself ; for, if he could succeed in such claim, he would then gain assets by descent (if he had not them before), and must fulfil the warranty of his ancestor ; and the same rule was, \vith less justice, adopted also in respect of collateral warranty, which hkewise, (though no assets descended,) barred the heir of the warrantor from claiming the land by any collat- eral title, upon the presumption of law, that he might thereafter have assets by descent either from or through the same ancestor." ^ To prevent the injustice, however, which would flow from the warranty of a tenant by the courtesy barring the children of the marriage after their father's death, the statute of Gloucester^ provided that "if a man alien a tenement that he holdeth by the law of England, his son shall not be bar- red by the deed of his father (from whom no heritage to him descended) to demand and recover, by writ of mort dancestor, of the seizin of his mother, although the deed of his father doth mention that he and his heirs be bound to warrant." ^ The statute of 11 Hen. VII. c. 20, invahdated all war- 1 2 Blacks. Comm. 302. See pas- cent case (Todd's Heirs u. Todd's sim, Butler's note to Co. Litt. 373 b. Heirs,18 B.Monroe, 144,) arose under Keport of the Pennsylvania Commis- that statute. A husband seized in right sioners, 119. of his wife joined with her in the con- 2 6 Ed. I. c. 3. veyance of her land by a deed which 3 In Kentucky, a statute passed in contained a covenant of warranty, 1 798, provided that "if the deed of the but which, by reason of defective ac- alienor doth mention that he and his knowledgment, was inoperative to heirs be bound to warrant, and if any pass her estate. After her death heritage descend to the demandant on the husband married again and died the side of the alienor, then he shall intestate ; there were children of beboundforthe value of the heritage the second marriage, and his estate that is to him descended." A very re- descended equally to both sets of 396 THE OPERATIO>^ OF COVENANTS FOR TITLE rauties made by a tenant in dower, a tenant for life, or in children. The children of the first marriage brought ejectment to re- cover 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 full value of the land which he had conveyed with warranty. They then brought suit against the personal representative of their father for pay- ment, out of the whole of his estate, of the loss which his breach of warranty had caused to fall upon them alone. In answer to this, it was urged that the covenant of warranty had not been broken, and consequently no charge upon the estate had been cre- ated ; that there was no example in any of the books for such an action, although occasion for it must fre- quently have arisen, especially be- tween the heir and the executor. But the Supreme Court, (per Simp- son, J.) said, " It is true that there has been no actual breach of the war- ranty, because it has been satisfied and a breach prevented by operation of law, by the application of the assets in the hands of the heirs in satisfac- tion of the covenant of their ances- tor. This effect is produced by way of rebutter, and the principle upon which it is founded is the desire to prevent the circuity of action which would arise if the heirs, having assets by descent, were allowed to regain possession of the land, as they would immediately be obliged, by means of the covenant of warranty, to recom- pense the purchaser for the injury he had sustained by the eviction. Look- ing then to the reason of the law and the object it was designed to ac- comphsh, it is evident that this de- fence allowed the purchaser, and which operated by way of rebutter, should in equity be regarded as a substantial breach of the warranty, and as a satisfaction thereof made by the plaintiffs. And as they have dis- charged a liability which was by law a charge upon the whole estate, they have a right to have it thus applied, so that the loss will devolve equally upon all the heirs. With respect to the argument drawn from the ab- sence in the books of any analogous cases, it is only necessary to remark that the doctrine of the common law on the subject of warranty and of descents was of such a character as to prevent cases like the present from arising ; and in nearly all the other States of the Union the ancestor's warranty, in cases like this one, does not have the effect of precluding a recovery of the land by the heirs of his wife, and consequently no such question as the one here presented can arise in those States. " The extent of the plaintiff''s right, however, under their ancestor's cove- nant of warranty cannot exceed the amount of the liability which was im- posed on his estate by a breach of it. The value of the land at the time of the sale, and not at the time of the eviction, is the amount of that liabil- ity. That value, with interest there- on from the death of their father, is all that the plaintiflTs have a right to, as they were not entitled to the pos- session of the land until that time. BY WAY OF ESTOPPEL OR REBUTTER. 397 tail jointly with her husband of lands derived from his an- cestors, made either by herself while a widow, or with any after-taken husband; and the 21st section of the statute of 4 Anne, c. 16, declared that all warranties made by any tenant for life, of any lands coming to any person in rever- sion or remainder, should be void, and that all collateral warranties of any lands by any ancestor who had no estate of inheritance in possession in the same should be void as against his heir.^ This statute of Anne has, in some of our States, been declared to be in force ; ^ in some, it has been re-enacted ■ Their right of action is founded alone upon the warranty of their ancestor ; it cannot be maintained upon any other ground, and consequently the right of recovery upon a breach of the warranty regulates and deter- mines the extent of the relief to which they are entitled. " It is not necessary to decide in this action what amount of assets is required by the statute to bar a re- covery by the heir ; it may, however, be remarked that by the common law the value of the land at the time it was conveyed was the criterion of the damages to which the vendee was en- titled for a breach of the warranty ; our law fixes the same criterion, and as the statute does not specify the value of the heritage that must de- scend to the demandant in order, to create the bar, it would seem that it would have to be determined by reference to the law regulating the liability of the warrantor." In the late case of Chauvln v. Wagner, 18 Missouri, 553, a husband and wife seized in her right, con- veyed the land with a covenant for further assurance. By reason of 34 its defective acknowledgment, the deed did not pass the wife's estate, and it was held that the children were not estopped by their father's covenant, unless it were shown that they had assets by descent from him of equal value. 1 The section as to collateral war- ranty is the 21st of the well-known statute of 4 Anne, e. 16, "for the amendment of the law and the better administration of justice.'' 2 In Rhode Island, the 21st section of the statute of Anne was declared by Story, J., in Sisson v. Seabury, 1 Sumner, 259, to have been included in the report made, in 1749, of the English statutes in force in that State ; and hence it was held that where one who in fact was tenant for life with remainder to his children, supposing himself to be tenant in tail, made a conveyance with warranty for the purpose of barring the entail accord- ing to a local statute, the remainder- men were not barred by the war- ranty contained in that deed, as it came directly within the provisions of the statute of Anne. In Pennsylvania, however, al- 398 THE OPERATION OF COVENANTS FOR TITI,E either literally, or in substance/ while in others, the whole ttough the report of the Judges in 1808, (3 Binney, 625,) declared that the first thirteen sections and the twentieth and twenty-seventh of the statute of Anne were in force in that State, yet the twenty-first was not so considered, and in the year 1799, where in Eshelman's Lessee v. Hoke, 2 Yeates, 509, a tenant by the cour- tesy, in fulfilment of articles entered into in the lifetime of his wife, con- veyed his interest to his eldest son, who conveyed to the purchaser with a covenant of warranty against him- self and his brothers and sisters, and the father also gavg a covenant in- dorsed on the deed against himself and his heirs, who afterwards brought an ejectment for their share, it was held that the latter were barred by the collateral warranty of their father, as the statute of Anne had never been considered as in force in Penn- sylvania. (The reason why this case did not come within the statute of Gloucester was because real assets had descended to the heirs from the father.) In the subsequent case of Jourdan v. Jourdan, 9 Serg. & Rawle, 268, it was also held that a collateral warranty barred the heirs of the war- rantor ; but, apparently to escape from the hardship of the decision, it was also determined that such war- ranty descended only upon the eld- est son, as heir at common law, and hence did not rebut his brothers and sisters. In a note, however, to the case of Paxson v. Lefferts, 3 Rawle, 6 7 (of which the remainder has been quoted supra, p. 217), it was said: " In this country, where descents are partible, great inconvenience and in- justice would ensue from applying the rule that a warranty bound only the heir at common law, in the oper- ation of a warranty by way of re- butter. The analogy between the custom of gavelkind and our system of descents affords an exception which we cannot but adopt. It is true that the text of Littleton is express, that a warranty of lands held in gavelkind descends only to the heir at common law, and shall not bind ' the heirs that are heirs according to the cus- tom;' Litt. § 736. The same rule applies to land held in borough Eng- lish ; lb. § 735. In the latter in- • stance, the case as put by Littleton appears extremely hard on the pur- chaser. The youngest son of the tenant in tail, who discontinued with warranty, was not barred, although land to an equal or greater amount in value had descended to him from his father. But the subtle notion of the descent of the warranty on the heir at common law alone, produc- tive of such injurious effects, was got rid of by an ingenious contrivance for the promotion of justice. Althouo-h the customary heir was not considered directly liable on the warranty, yet he was held so by reason of the in- heritance ; see Coke on Litt. 376 a; and either by being directly vouched by the warrantee, or by being vouched by the heir at commo-i law, in case the latter alone had been vouched (either of which courses was at the election of the warrantee), the cus- tomary heir could be rendered liable. See Robinson on Gavelkind, 127 ; 1 Leonard, 112; Cro. Jac. 218; Co. Litt. 12 a; Mr. Hargrave's Notes, (1). The principle applies with double force in the case of a rebut- BY WAY OF ESTOPPEL OR REBUTTER. 399 common-law doctrine of lineal and collateral warranty is deemed inapplicable to our system of jurisprudence.^ ter. It cannot be conceived that a gavelkind heir, or the youngest son in the case of borough Enghsh, who would thus be made responsible if the warrantee were evicted by a stranger, should not be rebutted in case he claimed the land himself, when the warrantee could thus cir- cuitously recover the same land from him afterwards. In the case of Jour- dan V. Jourdan, 9 Serg. & Rawle, 268, the attention of the Court was drawn only to the general rule, with- out its qualification. That decision is the chief source of the present note. It is believed that if the coun- sel for the plaintiff in error had pur- sued his researches a little further, and laid the authorities before the Court, the result of the case would have been different." In the case of Bates v. Norcross, 17 Pickering, (Mass.) 14, the plain- tiff' in an action of ejectment deduced a perfect title to himself in the prem- ises in question, but the defendant proved that the plaintiff's wife was the sole heiress of one who, though without title, had purported to sell the same land by a deed which con- tained a covenant of warranty, and urged that as this warranty would descend upon the plaintiff's wife, who had received assets by descent out of which she would be obliged to make good the warranty of her father, it should rebut or preclude the plaintiff from recovering, in answer to which the latter contended that inasmuch as he could not derive a title to the premises from the ancestor of his wife, he was a purchaser for valuable consideration, so that so far as he was concerned it was a collateral war- ranty without assets, and therefore by virtue of the statute of Anno, he was not rebutted. But the Court said : " We do not consider the doc- trine of collateral warranty as appli- cable to the case. If Davison were living and demanding the land, he would be estopped by his deed. So if his sole heir were suing for it, sh-e would be estopped, being privy both in blood and estate. The warranty of her ancestor has descended upon her, and (as the case finds) with as- sets of greater value than the land. This is a case of lineal warranty with assets, so far as the daughter, sole heir, and wife of the demandant is concerned. She at the time of her marriage was undoubtedly liable, and her liability devolved upon the hus- band and wife. If he was to be con- sidered a purchaser for the valuable consideration of marriage of all that came to the wife, it was cum onere. He and his wife became and were seized of the real estate in her right, and he took the personal estate ab- solutely, but subject to all the liabil- ity to respond to the warranty of the ancestor. If the demandant were to recover, the tenant would have an action to recover back the value, and the judgment and execution would be against the husband and the wife, and might be levied upon the body or estate of the husband. So that if the husband should recover in this action, he himself would be liable eventually to refund the value. . . It was contended for the demandant that circuity of action would not be prevented where there were a num- 400 THE OPERATION OF COVENANTS FOR TITLE Unless where the effect of warranty was thus restrained by statute, its benefit enured to him who had received it, ber of heirs of the warrantor ; that the rule of rebutter would not apply to estates held in gavelkind and bo- rough English, but only to cases of descent according to the English common law, to one heir. We are riot called upon to decide what the law would be if there were more heirs of the warrantor than one. Accord- ing to 4 Dane's Abridgment, 493, § 7, it would seem that no one can claim an interest against his own warranty, or against one descended upon liim and others, where the prin- ciple of rebutter, or circuity of ac- tion prevails. But the case at bar is clear of all difficulty on that point, for the report finds that the wife of the demandant is the sole heir of the warrantor." In Potter v. Potter, 1 Rhode Is- land, 43, a widow entitled to dower in the estate of her deceased husband married a second time. The real estate of the first husband was sold by his administrator for the pa)'ment of his debts, she not joining in the deed. The title afterwards came to the second husband, who afterwards conveyed the same with a covenant of warranty. In an action of dower brought by the husband and wife against the purchaser from the for- mer, it was held that they were estop- ped by his covenants from claiming dower during the continuance of their marriage. It was urged that this was not a covenant between the same parties — that the wife had made no covenants with her husband which estopped her. " That is true," said the Court, " but the husband by the marriage gains a right to the possession and use of the estate ; such an inter- est and title during the marriage as enables him to control it. He has a freehold interest in her dower, deter- minable upon the dissolution of the marriage. There is no equity in the claim of the wife, for she has partici- pated in the consideration received by her husband for the estate." 1 The statute of Anne was re- enacted in New York in 1788, but the Revised Statutes have abolished both lineal and collateral warranties, and all their incidents ; 4 Kent's Com. 469. In the Delaware Revised Statutes of 1852, it is declared (tit. xii. § 28), that " a warranty made by a tenant for life shall not, by descend- ing or coming to a person in remain- der or reversion, bar or affect his title, and a collateral warranty shall not, in any case, bar or affect a title not derived from the person making the warranty.'' This was modified from the Rev. Stat, of 1847. In North Carolina, the statute of Anne was re-enacted by the Revised Stat- utes of 1836, ch. 43, § 8 ; see Moore V. Parker, 12 Iredell, 129. In Flynn V. Williams, 1 Id. 509, it was held that where one to whom an estate had been devised with an executory devise over in case of his death with- out issue, should sell the same with a covenant of general warranty, his heirs would be barred either with or without assets, and whether the war- ranty was lineal or collateral. In the subsequent case of Spruill v. Leary, 13 Iredell, 225, a testator de- vised his estate to his four sons and their heirs, and at the death of any of them without issue his share was BY WAY OF ESTOPPEL OR REBUTTER. 401 both as a means of redress and as a defence asainst the warrantor and his heirs, and its principle in this respect was no doubt originally founded upon the desire to prevent the circuity of action which would arise if the warrantor or his heirs were allowed to regain possession of the land ; as they would immediately be obliged, by means of a ivarran- to go to tlie survivors. The sons made partition, and afterwards one of them conveyed his share to a pur- chaser with a covenant of general warranty, and afterwards died with- out issue ; and it was held upon the authority of Flynn v. Williams, that . the collateral warranty which de- scended upon his brothers who were his heirs, barred them. " It is an ar- tificial and hard rule," said Ruffin, Ch. J., "the practical operation of which at this day is to enable one man to sell another's land without compensation, directly or indirectly, which is not agreeable to the reason and justice of modern law. But it is nevertheless the law because it was undoubtedly so' anciently, and the legislature has not seen fit to alter it. For it is not within the statute of Anne . . because AVilliam Jones was not simply tenant for life, nor enti- tled to the bare right to the inheri- tance, but had the fee simple in pos- session at the time he entered into the warranty. . . He had an estate to him and his heirs in possession with an executory devise over in fee, and consequently his warranty is not one of those made void by the act, as the warranty of an ancestor who had no estate of inheritance in pos- session of the land." But from this opinion Pearson, J., dissented in an able opinion (13 Iredell, 408), and showed that in Flynn v. Williams, the estate had been devised to one 34* brother subject to a condition in favor of another brother who died first without issue, leaving the first taker his heir, whereby the latter had both the estate and the condition to which it was subject ; and in the recent case of Myers v. Craig, 1 Busbee, 169, SpruiU v. Leary was distinctly overruled, and it was held that the taker of the first fee, under a con- ditional limitation or executory de- vise, by which a fee is limited after a fee, could not by bargain and sale with warranty bar the taker of the second fee without assets descended. For a reference to the Virginia Statutes on this subject, the student may refer to Urquhart v. Clark, 2 Randolph, 549 ; Norman v. Cunning- ham, 5 Grattan, 63; Acts of 1785, (1 Rev. Code, c. 99, § 21) ; Code of 1849, tit. 33, c. 116, § 7, by which it is enacted that ." when the deed of the alienor mentions that he and his heirs will warrant what it purports to pass or assume, if anything descends from him, his heirs shall be barred for the value of what is so descended or liable for such value." 2 " The statute of Anne,'' says Chancellor Kent, " does not appear to have been generally or formally re-enacted in our American statute laws, because the law of lineal and collateral warranty never has been generally adopted in our American jurisprudence." 4 Commentaries, 469. 402 THE OPERATION OF COVENANTS FOR TITLE tta cJiartce, to restore its value to the party from vi^hom it had thus been taken. But while such was the operation of a warranty by means of rebutter, the doctrine of estoppel was in its principle far different,' and while the former was dependent upon the presence of a warranty, such was not the case with the latter, which had a wider scope, and might either be caused by matter of record, by matter of deed, or by matter in pais, and was called an estoppel or conclusion, " because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth." ^ This was the ordinary and personal effect of an estoppel by deed. But it had also a much higher operation, which was, in certain cases, actually to transfer and pass an estate ; so that if a man conveyed to another, land to which he had no title, any after-acquired title would enure to the latter by direct operation of law, and become vested in him in the same manner as if it had originally passed to him by the conveyance. There were two classes of cases in which an estate thus actually passed by estoppel. The first was where the mode of assurance was a feoffment, a fine or a common recovery. Such was their solemnity and high character, that they always passed an actual estate, and devested the feoffor or conusor not only of what he then had, but of every estate 1 Though as regards the efFect just therefore he ought not to contradict referred to, there was a similarity be- it. Secondly, as the law cannot be tween them, a rebutter being in this known till the facts are ascertained, respect " a kind of estoppel ; " Co. so neither can the truth of them be Litt. 35-2 b. found out by e%'idence ; and therefore 2 Co. Litt. 352 a. " The reason it is reasonable that some evidence why estoppels are allowed," says Mr. should be allowed of so high and con- Butler, in his note to this passage, elusive a nature as to admit of no " seems to be these : No man ought contradictory proof." An illustra- te allege anything but the truth for tiou of this is shown in the late case his defence, and what he has alleged ' of Temple v. Partridge, 42 Maine, once is to be presumed true, and 56, infra. BY WAY OF ESTOPPEL OR REBUTTER. 403 wliich he might thereafter, by any possibility, acquire,^ and this principle has been applied in modern times.^ The second class of assurances which passed an after-acquired estate by way of estoppel, were leases, which, it will be remembered, were susceptible of taking effect in futuro ; and the estoppel seems to have been put upon the ground of such having been the contract or agreement between the parties — the same contract which implied a covenant for quiet enjoyment from the word demise on the part of the lessor, and a covenant for payment of the rent from the words yielding and paying on the part of the lessee.^ 1 Sheppard's Touch. 204-210 ; Co. Litt. 9 a, 49 a; Plowden, 423. 2 Doe d. Christmas u. Oliver, 5 Man. & Ryl. 202 ; S. C. 10 Barn. & Cress. 181 ; Helps u. Hereford, 2 Barn. & Aid. 242 ; Doe d. Thomas v. Jones, 1 Crompt. & Jerv. S28. See the examination of Messrs. Humph- ries, Coote, &c., before the Real Property Commissioners, 1 Real Prop. Report. 3 Bac. Abr. tit. Leases, 296-441 ; Rawlyns* case, 4 Coke, 53 ; Weale v. Lower, PoUexfen, 60 ; Smith v. Low, 1 Atkyns, 490 ; Trevivan u. Law- rence, 1 Salkeld, 276 ; Wells v. Aus- tin, 7 Manning & Granger, 701 ; Mc- Kensie v. The City of Lexington, 4 Dana, (Ken ) 129. The doctrine of these cases is, indeed, one which nat- urally arises from the peculiarity of the relation between landlord and tenant, to which also other branches of the law of estoppel apply. The estoppel in pais which prevents the tenant from denying the landlord's title, depends upon the tenant's obli- gation,- express or implied, that he ■will at some time or in some event surrender the possession. The dis- tinction between the relation of land- lord and tenant and that of vendor and vendee is clearly recognized in the cases cited supra, p. 268. In Williams on Real Property, 329, the law on this subject is thus noticed : " The circumstance that a lease for years was anciently nothing more that a mere contract, explains a curious point of law relating to the creation of leases for years which does not hold with respect to the crea- tion of any greater interest in land. If a man should by indenture lease lands in which he has no legal inter- est, for a term of years, both lessor and lessee will be estopped during the term or forbidden to deny the validity of the lease. This might have been expected. But the law goes further, and holds that if the lessor should at any time during the lease acquire the lands he has so let, the lease which before operated only by estoppel, shall now take effect out of the newly acquired estate of the lessor, and shall become for all pur- poses a regular estate for a term of years." 404i THE OPERATION OF COVENANTS FOR TITLE These modes of assurance seem to have been the only- ones by which an after-acquired title vi^as actually passed by direct operation of law under the doctrine of estoppel. Thus a grant or a release had not this effect. They only operated upon the estate which the grantor or releasor actu- ally had, " and therefore if a man grant a rent-charge out of the manor of Dale, and in truth he hath nothing in that manor, and after he purchases the manor, yet he shall hold it discharged," ^ and this applied equally to a release.^ And 1 Perkins, tit. " Grant," § 65 ; Wivel's case, Hobart, 45 ; Touch. 240 ; Lampet's case, 10 Coke, 48. 2 Brooke's Abr. tit. " Estoppel," pi. 146 ; Doe d. Lumley v. Scarbo- rough, 3 Adolph. & Ellis, 2. Thus in the case of Right d. Jefferys v.. Bucknell, 2 Barn. & Adolph. 278, Thomas Jarvis the elder, having con- tracted to purchase certain premises, was let into possession by order of the Court of Chancery, and after- wards, without having received a conveyance, devised them to his son, Thomas Jarvis the younger, who en- tered and mortgaged them by inden- tures of lease and release to the les- sors of the plaintiff, reciting that he was legally or equitably entitled there- to, and covenanting that he was le- gally or equitably, rightfully, abso- lutely, and solely seized, &c. Some years after, the legal title was con- veyed to Thomas Jarvis the younger, whereby he became seized of the legal estate, which he afterwards conveyed by mortgage for a valuable consideration, to Bucknell, the de- fendant, who had no notice of the prior mortgage, and to whom all the title deeds were delivered, and upon ejectment being brought by the first mortgagee against the second, it was held that at law the plaintiff was not entitled to recover. " The question on which the Court took time to con- sider," said Lord Tenterden, who delivered the opinion, " was, whether the defendant, claiming under the mortgagor, Thomas Jarvis the young- er, could set up as a defence against the lessors of the plaintiff, the legal estate acquired by him since their mortgage ; and it has been argued for them, that he, as representing the mortgagor, Thomas Jarvis, is estopped from doing so ; and for this purpose, Co. Litt. 352 a, Litt. sect. 693, and the cases of Bensley v. Burdon, 2 Sim. & Stu. 519 ; Helps v. Hereford, 2 B. & Aid. 242 ; Goodtitle v. Morse and others, 3 Term, 365 ; Goodtitle V. Bailey, Cowper, 597 ; Goodtitle v. Morgan, 1 Term, 755 ; Doe d. Christ- mas V. Oliver, 10 B. & C. 181 ; Tre- vivan v. Lawrence, 1 Salk. 276 ; S. C. 2 Lord Raym. 1048, and Taylor V. Needham, 2 Taunton, 278, were cited. Of these cases, none are ap- plicable to the point in question ex- cept Goodtitle u. Morgan, and Bens- ley V. Burdon (of which more pres- ently) and Helps u. Hereford, and Doe V. Oliver. The last two are cases of estoppels arising out of fines levied before any interest vested, and BY WAY OF ESTOPPEL OR REBUTTER. 405 as the conveyances in use at the present day, which derive their efficacy by virtue of the statute of uses, viz. : deeds there is no doubt that a fine may op- erate by way of estoppel, but the present is not the case of a fine. In sect. 693, Littleton, speakinp; with reference to the doctrine of remitter, says, ' This is a remitter to him, if such taking of the estate be not by deed indehted, or by matter of record, which shall conclude or estop him ; ' and in Lord Coke's commentary upon this passage, a deed indented is dis- tinguished from a deed poll in this particular of remitter, for the deed poll is only the deed of the feofibr, donor, and lessor, but the deed in- dented is the deed of both parties, and therefore as well the taker as the giver is concluded. In 352 a. Lord Coke divides estoppels into three sorts, the second of which he thus defines : ' By matter in writing as by deed indented, by making of an ac- quittance by deed indented or deed poll, by defeasancy by deed indented or deed poll.' And there are many other authorities to show that estop- pel may be by any indenture or deed poll. But upon this rule there are many qualifications and exceptions engrafted. It is a rule that an es- toppel should be certain to every in- tent, and therefore, if the thing be not precisely and directly alleged, or be mere matter of supposal, it shall not be an estoppel ; nor shall a man be estopped where the truth appears by the same instrument, or that the grantor had nothing to grant, or only a possibility ; Co. Litt. 352 b, where the case is put ; ' An impropriation is made after the death of an incum- bent to- a bishop and his successors. The bishop, by indenture, demiseth the parsonage for forty years, to be- gin after the death of the incumbent. The dean and chapter confirmeth it ; the incumbent dieth. This demise shall not conclude, for it appeareth that he had nothing in the impropri- ation till after the death of the in- cumbent.' This passage from Co. Litt. is adopted by Ch. B. Comyns in his Digest, Estoppel (E. 2.) Now in the case at bar, the very truth that the mortgagor, Thomas Jarvis, the younger, had only an equitable in- terest, is partly admitted ; for the re- cital states, in the alternative, that he is lawfully or equitably entitled, and the covenant for title is to the same effect. At all events, there is in this recital a want of that certainty of allegation which is necessary to make it an estoppel. Lord Holt lays it down in Salter i'. Kidley, 1 Shower, 59, that a general recital is not an estop- pel, though a recital of a particular fact is. And upon this, the judgment of the Lord Chancellor in the recent case of Bensley v. Burdon, which was relied upon by the counsel for the lessors of the plaintiff, proceeded. The deed of release in that case recited, that Francis Tweedie, the younger, was, subject to his father's life estate, seized 6r possessed of, or well entitled to, the lands and tene- ments thereinafter mentioned in re- version 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. The present Master of the Rolls, then Vice-Chan- 406 THE OPERATION OF COVENANTS FOR TITLE of bargain and sale, lease and release, &c., pass no more than the actual estate of the party, it naturally follows that cellor, by whom this case was first decided, according to the report in 2 Sim. & Stu. 519, held that this was an estoppel, upon the general ground that it was a deed indented, and that the nature of the conveyance, namely lease and release, made no difference. The Lord Chancellor confirmed this judgment (5 Russel's Ch. Rep.) but put it on this solely, that it was an allegation of a particular fact by which the party making it was con- cluded (see this case supra, p. 190, and infra). That case, therefore, greatly differed from the present, in which there is no certain precise aver- ment in the deed of release of any seizin in T. Jarvis the younger, but a recital only, that he was legally or equitably entitled. We think, there- fore, that this recital does not operate by way of estoppel. "We are of opinion, also, that the release whereby T. Jarvis granted, bargained, sold, aliened, remised, re- leased, &c., the premises, does not, by mere force of these words, amount to an estoppel. Littleton lays it down, sect. 446, that ' no right pas- seth by a release, but the right which the releasor hath at the time of the release made. For if there be a father and a son, and the father be disseized, and the son (living his father) releaseth by his deed to the disseizor, all the right which he hath or may have in the same tenements without clause of warranty, &c., and after his father dieth, &c., the son may lawfully enter upon the posses- sion of the disseizor.' To the same effect is Wivel's case, Hob. 45, and Perk. § 65, that where a son and heir joins in a grant in the lifetime of his father, while he has neither possession nor right in the matter granted, the grant is utterly void, and nothing passes. So here, if the release pass nothing but what the releasor lawfully had, and he had no legal title in the premises at the time of the release made, those who claim under him by a subsequent good title are at liberty to show this ; and there is no implied estoppel, as appears from the authorities just cited, and the Year Books, 49 Ed. III. 14, 15 ; 45 Ass. 5 ; 46 Ass. 6, and Brooke's construction of these books in his Abr. tit. Estoppel, pi. 146 ; 10 Vin. Abr. Estoppel, M. " The case was put, in argument, on another ground for the lessors of the plaintiff, namely, that it was within the common rule that a mort- gagor cannot dispute the title of his mortgagee. Such a rule, without reference to the technical doctrine of estoppel, undoubtedly is to be met with as laid down by Lord Holt in Salkeld, and has been often recog- nized in modern times. But we are of opinion that it does not apply to the present case. Here the defend- ant Bucknell claims as the purchaser for a valuable consideration without notice, a legal interest which was not in T. Jarvis at the time of his mort- gage to the lessors of the plaintiff, and T. Jarvis had then an equitable interest which passed to them, and which is not questioned, nor sought to be disturbed by the defence which Bucknell sets up. This case much BY WAY OF ESTOPPEL OR REBUTTER. 407 they have no greater efficacy by way of estoppel, than the common-law grant or release.^ Where, however, it has distinctly appeared, in such con- veyance, either by a recital, an admission, a covenant, or otherwise, that the parties actually intended to convey and receive, reciprocally, a certain estate, they have been held to be estopped from denying the operation of the deed accord- ing to this intent.^ resembles that of Goodtitle v. Mor- gan, 1 Term, 755, where a second mortgagee, without notice, who got in the legal title by taking an assign- ment, from a trustee and the mort- gagor, of an outstanding term as- signed to attend the Inheritance, was holden entitled to a legal preference against the first mortgagee. There, as, here, it might be said that he was bound by the same conclusion as the mortgagor, and should not question the right of the prior mortgagee. But the legal title pre- vailed there, and so we think it ought here." The student will observe that this argument was based solely on the rights of the parties as presented in a court of law, and that it is ex- pressly said that the equitable inter- est which passed to the lessors of the plaintiff was " not questioned nor sought to be disturbed by the de- fence which Buoknell set up." The case is, therefore, distinguishable from that class in which, in equity, the ac- quisition of a subsequent estate will be held to operate in favor of a prior mortgagee or purchaser, as an ex- ecutory agreement to convey, when- ever the intention of the parties is apparent, and sustained by a sufficient consideration ; Seaborne v. Powell, 2 Vernon, 11 ; supra,-p. 192; Lamar V. Simpson, 1 Richardson's Eq. (S. Car.) 71, and see infra. Doe v. Pott, Douglas, 720, decided by Lord Mansfield in 1781, was a case where a lord of a manor having mortgaged the manor, afterwards purchased copyhold lands held of this manor, and took surrenders of them ; and it was held that by the mortgage of the " manor," all its consequences and incidents passed ; that the manor be- ing mortgaged in fee, the mortgai'or could not afterwards sever the copy- holds, because that would have dimin- ished the security, " for the mortgagee had a right to the services, quitrents, escheats, forfeitures and other casual- ties." 1 Kennedy v. Skeer, 3 Watts, (Pa.) 98. 2 Goodtitle V. Bailey, Cowper, 559 ; Doe V. Errington, 8 Scott, 210 ; Bow- man V. Taylor, 2 Adolph. & Ellis, 278 ; Carver v. Astor, 4 Peters, 86 ; Kearney v. Van Rensellaer, 11 How- ard, 325; Smith v. Pendleton, 19 Connect. 107; McBurney v. Cutler, 18 Barbour, (N. Y.) 208 ; Root v. Crock, 7 Barr, (Pa.) 380 ; Kinsman V. Loomis, 11 Ohio, 478 ; Williams v. Presbyterian Society, 1 Ohio State R. 478; Den v. Brewer, Coxe, (N. J.) 172 ; Decker v. Caskey, 2 Green's Ch. (N. J.) 449; Fitzhugh's Heirs V. Tyler, 9 B. Monroe, (Ken.) 561 ; 408 THE OPERATION OF COVENANTS FOR TITLE There was then an ordinary and an extraordinary effect attached to an estoppel. The one was personal in its char- acter, like the rebutter in a wawanty, and estopped the grantor and his heirs from doing or alleging anything con- trary to the tenor and effect of his sealed instrument. The other, besides this quality, possessed the high function of actually transferring every estate, present or future, vested or contingent, to the feofi'ee, con usee, or lessee, according as the mode of assurance employed was a feoffment, a fine or a lease ; and this effect was peculiar to them alone, there being no authority ^ in any of the English books to show that it was produced by any other species of conveyance.^ This brief sketch of some of the principal features of the doctrine of estoppel by deed has been here presented as introductory to an important class of cases, on this side of the Atlantic, which have given to the modern covenant of warranty the sweeping operation just referred to as prop- erly attributable only to the efiect of an estoppel in its highest sense. It was decided in some early cases in the State of New York, that where one, by deed of bargain and sale or lease or release, conveyed land to which he had no title, he was estopped by his deed from claiming any after-acquired estate in it.^ Williams v. Claiborne, 1 Smedes & 81 ; Jackson v. Murray, 12 Johns. Marsh. Ch. (Miss.) 365. 201. Jackson v. Bull was decided 1 Except the case of Bensley v. by Kent, J., upon the following au- Burdon, 2 Sim. & Stu. 519; which thorities: Ischam v. Morrice, Cro. has since been overruled. See infra. Car. 110; Co. Litt. 45 a, 47 b, 352 3 See Doe v. Oliver, 5 Man. & a, b; Rawlyns' case, 4 Coke, 53 a; Ryl. 102; S. C. 10 Barn. & Cress. 181 ; Piggot v. Earl of Salisbury, 2 Mod. 2 Smith's Leading Cases, 417. The 115; Trevivan v. Lawrence, 6 Id. quotation from Littleton, § 446, will 258; S. C. 1 Salk. 276; Palmer v. be presently referred to. Ekins, 2 Raymond, 1551 ; Nick v. 3 Jackson v. Bull, 1 Johns. Cases, Edwards, 3 P. Wms. 373, wliioh in- BY WAY OF ESTOPPEL OR REBUTTER. 409 But whatever may have been the grounds of these decis- ions, 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 ivitJwut a covenant of ivarranty, a subsequently acquired title would not enure to the benefit of the bargainee even as against the bargainor and his heirs,^ and in subsequent and recent cases, both there and elsewhere, the same doctrine has been adopted and may now be considered as well settled.^ deed justify the conclusion arrived at by that learned Judge, that " if a man make a lease of land by inden- ture -which is not his, or levy a fine of an estate not vested, and after- wards purchases the land, he shall notwithstanding be bound by his deed, and not be permitted to aver he had nothing, and the stranger to whom he sells will equally be es- topped," but the difference between the modes of assurance here referred to, and conveyances under the stat- ute of uses has already been noticed. Nelson, J., in speaking (in Pelle- treau v. Jackson, 1 1 Wendell, 1 1 9,) of Jackson v. Bull, and Jackson v. Murray, said, " It does not appear in either of them whether there was a covenant of warranty or not. . . If not, though the doctrine of them may be sound, I apprehend there would be difficulty in reconciling them with the rule in Littleton ; " &c. The rule thus referred to will be presently noticed. 1 Jackson d. McCrackin v. Wright, 14 Johns. 193. The facts were these : Peter Boise by deed poll in 1794, granted, bargained, sold and quit- claimed to the lessor of the plaintiff, in fee, " all that military right or parcel of land granted to him as 35 bounty lands, for his services during the late war." The deed contained no covenants for title. In 1806, an act of the legislature was passed, authorizing letters-patent to be granted to Boise " for the quantity of two hundred acres of land in the tract set apart for the use of the line of this State, serving in the army of the United States," and the land was accordingly patented to him. The Judge ruled that the deed from Boise to the lessor of the plaintiff, being prior in date to the patent, did not entitle him to recover, and a verdict having passed for the defendant, the case was submitted, on a motion for a new trial, without argument, when it was said, " The deed from Boise to McCrackin is a bargain and sale and quitclaim, and he had then no title to convey in the premises ; and no title not then in esse, would pass unless there was a warranty in the deed, in which last case it would operate as an estoppel, for avoiding circuity of action." 2 Jackson v. Hubble, 1 Cowen, (N. Y.) 613; Jackson v. Winslow, 9 Id. 18; Jackson v. Bradford, 4 Wendell, (N. Y.) 622; Pelletreau V. Jackson, 11 Id. 110; Jackson v. Waldron, 13 Id. 178 ; Varick v. Ed- 410 THE OPERATION OF COVENANTS FOR TITLE A diifereiit result is, however, caused by the presence in the deed of a covenant of warranty, and it has been decided wards, 1 Hoffman's Cli. R. (N. Y.) 382; 11 Paige, (S. Y.) 290; Ed- wards V. Varick, 5 Denio, (N. Y.) 665 ; (these five cases were, in fact, the same controversy which arose under the will of Medcef Eden, re- ferred to below) ; Sparrow v. King- man, 1 Comstock, (N. Y.) 247 ; Comstock V. Smith, 13 Pickering, (IVIass.) 116; Blanchardt). Brooks, 12 Id. 47, 66 ; Taft v. Stevens, 3 Gray, (IMass.) 604 ; Fox v. Widgery, 4 Greenleaf, (Me.) 218 ; Ham v. Ham, 2 Shepley, (Me.) 351 ; (thus, in cases of involuntary alienation, as where a creditor levies upon land of his debtor, the latter is not estopped to assert a subsequently acquired title ; Freeman i. Thayer, 29 Maine, 369) ; Dart ;;. Dart, 7 Connect. 256 ; Dodswell 1'. Buchanan, 3 Leigh, (Va.) 365; Kinsman v. Loomis, 11 Ohio, 475 ; Bell v. TwiUght, 6 Foster, (N". H.) 401 ; TiUotson u. Kennedy, 5 Alabama, 413 ; Frink u. Darst, 14 Illinois, 308, overruling Frisby v. Bal- lance, 2 Gilman, (111.) 141. " This is strikingly illustrated," says Mr. Hare, in his note to the Duchess of Kings- ton's case, 2 Smith's Leading Cases, (5th Am. ed.) " by the case of Pel- letreau v. Jackson, 11 Wendell, 110, 13 Id. 178, where it was finally and authoritatively decided, after long and protracted litigation, that the grant of an executory or contingent estate is devoid of all effect, both as a conveyance and as an estoppel. The controversy originated in the will of Medcef Eden, by which he appointed his sons Joseph and Med- cef his executors, and devised the land in question to Joseph, and other land to Medcef, with a proviso that if either died without issue, his share should go to the survivor. Subse- quently to his death, the executors assigned a mortgage on the land de- vised to Joseph, which the testator had purchased in his lifetime as a protection against an adverse title, to the lessor of the plaintiff, and re- leased and conveyed all their right, title, and interest iu the land, to him in fee. Joseph Eden died shortly after the execution of this assign- ment, and the question was whether the executory devise over to the sur- vivor, took effect in his favor, or in that of the plaintiff, which necessarily depended on whether it passed by the assignment, while yet contingent. It was contended on behalf of the assignee, that contingent interests might be released although they could not be granted, and that the assignment should be construed as a grant, or bargain and sale, for the ptfrpose of passing the estate which was vested in Joseph, and as a re- lease for that of extinguishing the executory interest of Medcef. But it was held by the Court, on the au- thority of Lampet's case, 10 Coke, 48, that the rule which permits con- tingent interests to be released, does not apply when the uncertainty ex- tends to the person as well as to the estate, and that as it was necessa- rily uncertain which of the devisees would be the survivor until the event, neither could extinguish his interest by a release, before the death of the other. This decision BY WAY OF ESTOPPEL OR REBUTTER. 411 by a numerous class of cases that, as a general rule, any after-acquired estate will enure, by virtue of the warranty, to the party claiming under such conveyance, with the same was subsequently confirmed by the Court of Errors, in Jackson v. Wal- dron, and again in another fortti on an appeal from Chancery, in Ed- wards V. Varick, 5 Denio, 665. This case, when taken in connection with those already cited, fully establishes that no estate can pass by deed, either at common law, or under the statute, which is not vested in inter- est at the time of the grant, and that a deed which fails as a conveyance cannot be set up as an estoppel, even as against the grantor and those claiming under him by descent or purchase." The Kevised Statutes of Arkansas, however, provide that " If any per- son shall convey any real estate, by deed purporting to convey the same, }fy fee simple absolute, or any less estate, and shall not, at the time of such conveyance, have the legal es- tate in such lands, but shall after- wards acquire the same, the legal or equitable estate afterwards acquired shall immediately pass to the gran- tee, and such conveyance shall be as valid as if such legal or equitable estate had been in the grantee at the time of the conveyance." Kev. Stats. c. 37, § 4 ; Cocke v. Brogan, 6 Pike, 699. So, in Missouri, the Revised Stat^ utesof 1825 declared, "If any per- son shall sell and convey to another by deed or conveyance purporting to convey an estate in fee simple abso- lute, in any tract of land or real estate, lying and being in this State, and not then being possessed of the legal estate or interest therein, at the time of the sale and conveyance, but after such sale and conveyance, the vendor shall become possessed of, and confirmed in the legal estate to the land or real estate, so sold and con- veyed, it shall be taken and held to be in trust, and for the use of the grantee or vendee, and the convey- ance aforesaid shall be held and taken, and shall be as valid as if the grantor or vendor had the legal estate or interest at the time of said sale or conveyance." The Revised Statutes of 1845 provide that " If any person shall convey any real estate, by con- veyance purporting to convey the same in fee simple libsolute, and shall not, at the time of such conveyance, have the legal estate in such real estate, but shall afterwards acquire the same, the legal estate subse- quently acquired shall immediately pass to the grantee, and such con- veyance shall be as valid as if such legal estate had been in the grantor at the time of the conveyance." Rev. Stats. 1845, c. 32, § 3, p. 219. See Bogy V. Shoab, 13 Missouri, 379; Valle V. Clemens, 18 Id. 490 ; Geyer V. Girard, 22 Id. 120. In Illinois, the Revised Statutes of 1833, p. 131, are expressed in precisely similar lan- guage ; Frink v. Darst, 14 Illinois, 308. In the late case in Missouri of Norcum v. Gaty, 19 Missouri, 65, it is said, " No principle of the Span- ish law is known, making an after- acquired title enure to the benefit of a former grantee." 412 THE OPERATION OF COVENANTS FOR TITLE effect as if it had been originally passed by it. Thus where one having granted land to his father, afterwards mortgaged the same land with a covenant of warranty, it was held that upon the death of the father, and the descent of the moiety of the estate upon himself as one of his father's heirs, the mortgagee took that moiety by estoppel.^ So where an heir gave a release of his expectant estate, with a covenant that neither he nor those claiming under him should ever claim any right to the same, it was held that when the estate devolved upon him, it immediately enured by estop- pel to the grantee,^ and the same doctrine has been often recognized and applied.^ 1 Somes V. Skinner, 3 Pickering, (Mass.) 52. 2 Trull V. Eastman, 3 Metcalf, (Mass.) 121. 3 Jackson v. Winslow, 9 Cowen, (N. Y.) 18 ; Kellog v. Wood, 4 Paige, (N. Y.) 578; Sparrow v. Kingman, I Comstock, (N. Y.) 247; Ratlibun V. Kathbun, 6 Barbour, S. C. (N. Y.) 107; Hoyt v. Dimon, 5 Day, (Conn.) 479; Dudley i). Cadwell, 19 Connect. 226 ; Sherwood v. Barlow, Id. 476; Lawry v. Williams, 13 Maine, 281 ; Baxter v. Bradbury, 20 Id. 260; Pike v. Galvin, 29 Id. 183, (overruling as to the operation of the particular covenant there employed, Fairbanks v. Wilhamson, 7 Green- leaf, 96) ; Williams v. Thurlow, 31 Maine, 395 ; Kimball n. Blaisdell, 5 N. Hamp. 533 ; Wark v. Willard, 13 Id. 389 ; Thorndike o. Norris, 4 Fos- ter, (N. H.) 454 ; Jewell v. Porter, II Id. 39; Middlebury College v. Cheney, 1 Vermont, 349 ; Blake u. Tucker, 12 Id. 44 ; Blanchard v. Brooks, 12 Pickering, (Mass.) 47; Wade V. Linsley, 6 Metcalf, (Mass.) 413; Gibbs v. Thayer, 6 Gushing, (Mass.) 30 ; (see Potter v. Potter, 1 Rhode Island, 44, svpra, p. 400) ; Gough V. Bell, 1 Zabriskie, (N. J.) 156 ; Moore v. Rake, 2 Dutcher, (N. J.) 574; Funk v. Newcomer, 10 Maryland, 316; Patterson v. Pease, 5 Ohio, 190; Scott v. Doug- lass, 7 Id. 227 ; Barton v. Morris, 15 Id. 408 ; Doswell v. Buchanan, 3 Leigh, (Va.) 376 ; Davis v. Keller, 5 Rich. Eq. (S. Car.) 434 ; Massie V. Sebastian, 4 Bibb, (Ken.) 436; Logan V. Moore, 7 Dana, (Ken.) 76 ; Logan V. Steel, 4 B. Monroe, (Ken.) 433 ; Dickerson v. Talbot, 14 Id. 64; Perry d. Kline, 13 Id. 124 ; Rigg v. Cook, 4 Gilman, (111.) 348 ; Robert- son V. Gaines, 2 Humphrey, (Tenn.) 383 ; Kennedy v. McCartney, 4 Por- ter, (Alab.) 141 ; TlUotson v. Ken- nedy, 5 Alabama,413; Bean w. Welsh, 17 Id. 772; O'Bannon v. Paramour, 24 Georgia, 493 ; Terret v. Taylor, 9 Cranch, 52 ; Mason v. Muncaster, 9 Wheaton, 455. In Recder v. Craig, 3 McCord, (S. Car.) 411, and Har- mer's Lessee v. Morris, 1 McLean, 44, it does not appear whether there was a warranty or not, but it was BY WAY OF ESTOPPEL OR REBUTTER. 413 The ground upon which many of these decisions are based, is said to be that of preventing circuity of action.' held that the after-acquired estate passed. The conclusion to which these cases tend was thus stated by Wal- worth, Ch., in the recent case of the Bank of Utica u. Mersereau, 3 Bar- bour's Ch. (N. Y-) 567. "By the common law, if a grantor who had no interest, or only a defeasible in- terest in the premises granted, con- veyed the premises with warranty, and afterwards obtained an absolute title to the property, such title imme- diately became vested in the grantee or his heirs or assigns, by estoppel ; Co. Litt. 265 a. And if the grantor, or any one claiming title from him subsequent to such grant, sought to recover the premises by virtue of such after-acquired title, the original grantee or his heirs or assigns, by virtue of the warranty which ran with the title to the land, might plead such warranty, by way of rebutter or estoppel, as an absolute bar to the claim; Co. Litt. 365 a; Termes de la Ley, tit. Guaranty, Toml. Law Diet. art. Kebutter. This principle ■ has been applied to all suits brought by persons bound by the warranty or estoppel, against the grantee or his heirs or assigns, so as to give the grantee and those claiming under him, the same right to the premises as if the subsequently-acquired title or interest therein had been actually vested in the grantor at the time of the original conveyance from him with warranty, where the covenant of warranty was in full force at the time when such subsequent title was acquired by the grantor ; Jackson v. 35* Wright, 14 Johns. 193; Brown v. M'Cormick, 6 Watts, 64 ; Comstock V. Smith, 13 Pickering, 119. And where an estoppel runs with the land, it operates upon the title, so as actually to alter the interest in it, in the hands of the heir or assigns of the person bound by the estoppel as well as in the hands of such person himself Thus, if a man by deed in- dented make a lease of land, reserv- ing rent, which implies a warranty on the part of the lessor, and the landlord has no interest in the land at the time of the execution of the lease, if he afterwards purchases the land, and then sells it to a stranger, the latter will hold it subject to the lease ; and coming in as the assignee, or grantee, of the person who made the lease, will be estopped from show- ing that the lessor had no interest in the land at the time he made such lease; 1 Co. Litt. (19th Lend, ed.) 47, note 11 ; 7 Bac. Abr., Warranty, L.; Bull V. Wiott, 1 Kolle's Abr. 868 ; Somes v. Skinner, 3 Pickering, 52 ; Trevivan v. Lawrence, 5 Mod- ern, 268. For, as a covenant of war- ranty runs with the lands, so as to give the heirs and assigns of the grantee the benefit of the estoppel as against the warrantor, it runs with the subsequently-acquired interest of the warrantor, in the hands of the heirs and assigns of the latter, so as to bind that interest by the estoppel, as against any person claiming the same under him in the post." 1 In Bush V. Cooper, 26 Mississippi, 613, it was held that the after-ac- quired estate would pass, although 414 THE OPERATION OF COVENANTS FOR TITLE This has been exemphfied in a striking manner in recent cases in Maine, which have decided that a covenant of non- claim (that is to say, a covenant that neither the grantor nor any other person shall or will have, claim or demand any right or title to the premises), is not such a covenant as will support an action against the party making it, and hence that it will create no estoppel.^ Such a construction the covenantor had, since the con- veyance, been discharged as a bank- rupt, the breach of the covenant hav- ing happened after such discharge. 1 Pike V. Galvin, 29 Maine, 185, (overruling Fairbanks v. Williamson, 7 Greenleaf, 97; see the dissenting opinion of Mr. Justice Wells, 30 Maine, 539 ; and see Ham u. Ham, 14 Maine, 355, where Fairbanks v. Williamson was virtually denied) ; Partridge v. Patten, 33 Maine, 483 ; Loomis V. Pingree, 43 Id. 314. Pike V. Galvin was a very striking illus- tration of the extent to which the doctrine of estoppel may lead. Ward, being the owner of certain premises, agreed, in 1820, by articles, to con- vey them to Jellison, who entered into possession, but who did not, it seems, comply with the condition of the articles, and in 1823 assigned tire contract to the plaintiff, and on the same day executed to him a release of the premises, containing a, cove- nant of non-claim. In 1825, Ward conveyed the premises, inter alia', to Dyer, who, in 1829, conveyed them to Jellison. Jellison, in 1833, con- veyed them to the landlord of the defendants. All these conveyances were on record. Jellison, and those claiming under him, had always been in possession, the plaintiff never hav- ing had the possession. Under these circumstances, the plaintiff claimed that, by virtue of the release with covenant of non-claim, from Jellison to himself, in 1823, the title acquired in 1829 enured to his benefit; but the Court held (Wells, J., dissent- ing), that inasmuch as the release contained no covenant of warranty, but only a covenant of non-claim, the doctrine of estoppel could not apply. The covenant could not operate in favor of the plaintiff, it was said, " by ■way of estoppel, to prevent circuity of action, for he could maintain no action on that covenant. Nor could it so operate in any other mode, un- less there had been found some alle- gation in the deed, by which the re- leasor had asserted some matter to be true, which he must necessarily con- tradict, and deny to have been true, if he would claim to be the owner of the land. In such case, he would have been estopped, because the law will not permit one who has, in such a solemn manner, admitted a matter to be true, to allege it to be false. ' This,' says Kent, ' is the reason and foundation of the doctrine of estop- pels;' 4 Kent's Comm. 261, note d, where he also says, ' a release or other deed, when the releasor or grantor has no right at the time, passes nothing, and will not carry a title subsequently acquired, unless it contains a clause of warranty; and then it operates by way of estoppel BY WAY OF ESTOPPEL OR REBUTTER. 415 given to this covenant has not, however, been elsewhere and not otherwise.' The covenant of non-claim asserts nothing respecting the past or the present. It is only an engagement respecting future con- duct." It is difficult, however, to imagine how a more solemn assertion could have been made than was contained in the covenant referred to, which was, " so that neither I, the said Jel- lison, nor my heirs, or any other per- son claiming from or under me or them, or in the name, right and stead of me or them, shall, or will by any way or means, have, claim or demand any right or title to the aforesaid premises or to any part or parcel thereof forever." The decision of the case was perfectly correct upon the facts, as under the registry acts, Jellison's grantee in 1833 was not bound to search the record for con- veyances by him prior to 1829, when Dyer had conveyed to him; and the application of the doctriae of estop- pel would have been opposed to the theory of these statutes. At the same time, it is difficult to support the au- thority of the case upon the princi- ples so well settled in 2Sfew England ; and it even became necessary to overrule some prior decisions in the same State with respect to the cove- nant of non-claim, which had been recognized as law for nearly twenty . years, and had been elsewhere ap- proved. Wells, J., in his dissenting opinion (published in 30 Maine, 539), adhered, however, to the law as adopted generally in the Northern States, and was of opinion that the plaintiff was entitled to recover. In the subsequent case of Curtis v. Cur- tis, 40 Maine, 24, the facts were, how- ever, much the same as those in Trull V. Eastman, 3 Metcalf, supra, p. 412. One of several sons released in his father's lifetime all his present and future claim in his estate, with a cov- enant that neither he nor any one through him should ever claim any right to the same, and it was held that this precluded him from bring- ing proceedings for partition after his father's death. In the recent case of Loomis V. Pingree, 43 Maine, 314, it was said that " the decision in Pike V. Galvin having been made more than nine years, whatever may be said on the one side or the other, the interest and peace of the community require that we should abide by it." It is somewhat singular that in the case of Pike v. Galvin, neither the counsel nor the Court should have noticed the decision in Jackson v. Bradford, 4 Wendell, (N. Y.) 622, where the Supreme Court of New York had, in order to avoid an em- barrassing result necessarily follow- ing from the application of the doc- trine of estoppel as held in the class of cases just cited, been also obliged to make the same decision as was pronounced in Pike v. Galvin. An heir conveyed property with a cove- nant of non-claim, and afterwards the estate which he had purported to con- vey, devolved upon him and was levied upon and sold by a judgment creditor, and it was held that the estate passed to the sheriff's vendee, and not, by estoppel, to the prior grantee, as the covenant was not one on which an action would lie. 416 THE OPERATION OF COVENANTS FOR TITLE adopted, it being generally considered as synonymous with a covenant of warranty.^ So it has been held that where the covenant for seizin is satisfied by the transfer to the purchaser, of an actual though a tortious seizin (as is the case in several of the New England States),^ no estoppel will be created by that covenant.^ So, too, where the covenant of warranty is lim- ited to the acts of the grantor, and the purchaser would not be entitled to sustain an action upon it, by reason of the defect of title not being of the grantor's own creation, and therefore not coming within the scope of the covenant, there will be no estoppel, and an after-acquired estate will not pass to the purchaser.* 1 See Trull v. Eastman, 3 Metcalf, 121 ; Miller v. Ewing, 6 Gushing, (Mass.) 34 ; cited infra. 3 See supra, p. 20 et seq. 3 Fox V. Widgery, 4 Greenleaf, (Me.) 218 ; Allen v. Sayward, 5 Id. 231 ; Doane v. Willcutt, 6 Gray, (Mass.) 333. And in Missouri, it has been held that the statutory cove- nants 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 op- erate as a rebutter against the grantor in respect to their obligation as cov- enants." Chauvin v. Wagner, 19 Missouri, 531. 4 Thus in Comstock v. Smith, 13 Pickering, (Mass.) 116, the tenant of one Waters purchased the prem- ises by parol, and paid part of the purchase-money. He was afterwards disseized by the demandants, who, ing that the demandants had no title, reconveyed to them all his " right, claim and demand in and to the premises," and covenanted to .war- rant and defend them " against the lawful claims and demands of all per- sons claiming by or under him," and the demandant thereupon refunded the consideration-money. The ten- ant subsequently, in pursuance of the parol contract, received a convey- ance from Waters, who was the true owner, when the demandants brought a writ of entry against him, on the ground that the after-acquired title under the deed from Waters enured, by virtue of the covenant of warranty, to their benefit. But Wilde, J., in delivering the opinion of the Court, said : " It is a well-settled principle of the common law, that if one con- veys lands or other real estate, with a general covenant of warranty against all lawful claims and demands, he pretending that they had a lawful cannot be allowed to set up against title to the premises, subsequently his grantee or those claiming under sold them to the tenant. At the him, any title subsequently acquired, expiration of a year, the latter, find- either by purchase or otherwise. BY WAY OF ESTOPPEL OR REBUTTER. 417 There is still another qualification to the doctrine of estop- pel being caused by a covenant of warranty, which is that Such new title will enure, by way of estoppel, to the use and benefit of his grantee, his heirs and assigns. This principle is founded in equity and justice, as well as the policy of the law. It is just that a party should not be permitted to hold or recover an estate in violation of his own cov- enant ; and it is wise policy to repress litigation and to prevent a circuity of actions, when better or equal justice may be administered in a single suit. By such a grant with general war- • ranty, nothing passes, nor indeed can possibly pass, e.xcepting the title which the grantor has at the time of the grant ; but he is estopped to set up a title subsequently obtained by him, because if he should recover against his grantee, the grantee in his turn would be entitled to an ac- tion against the grantor, to recover the value of the land. The principle of estoppel, therefore, not only pre- vents multiplicity of suits, but is sure to administer strict and exact justice ; whereas, if the grantee were driven to his action to recover the value of the land, exact justice might not be obtained, because the land might possibly not be estimated at its just value. If, however, the grantee were not entitled to recover the value of the land on the grantor's covenant of warranty, then in such a case it is obvious that this species of estoppel would not be applicable. And such appears to be the law in regard to the covenant in question, by which the demandants attempt to estop the tenant to set up or plead the title of Waters. The tenant's covenant is a restricted covenant, and is co-exten- sive with the grant or release. He agrees to warrant the title granted or released, and nothing more. That title only he undertook to assert and defend. To extend the covenant further would be to reject or do away the restrictive words of it, and to en- large it to a general covenant of war- ranty, against the manifest intention of both parties. The tenant, in cov- enanting to warrant and defend the granted or released premises, must be understood to refer to the estate or title sold or released, and not to the land, because he did not certainly intend to warrant any estate or title not intended to be conveyed. Now if Waters, after the tenant's quit- claim deed, had evicted the demand- ants, this would have been no breach of the tenant's covenant. Or if the tenant now held under Waters with- out having obtained the fee from him, he might pray Waters in aid, and thus defend himself against the title of the demandants, the title of Waters being, as the plea avers, the elder and better title, and this also, would be no breach of the tenant's covenant. He did not undertake to convey to de- mandants an indefeasible estate, but only his own title ; nor did he agree to warrant and defend it against all claims and demands, but only against those derived from himself, by which he must be understood to refer to existing claims or incumbrances, and not to any title which he might after- wards acquire by purchase or other- wise from a stranger ; Ellis v. Welch, 6 Mass. 250. There is, therefore, no reason to be assigned why the tenant should not purchase the title tl8 THE OPERATION OF COVENANTS FOR TITLE where the deed does not, on its face, purport to convey an indefeasible estate, but only " the right, title, and interest" of the grantor, even although the deed may contain a gen- eral covenant of warranty, yet, in cases where that cove- nant is held to be limited and restrained by the estate con- veyed and not to warrant a perfect title, the doctrine of estoppel has been held not to apply; in other words, although a warranty is invested with the highest functions of an of Waters. The demandants can- not thereby be prejudiced, nor ought they therefrom to derive any ben- efit. " It was then contended by the demandants' counsel, that, admitting the tenant is not estopped by his covenant of warranty, he is never- theless estopped by his conveyance to deny that he had any title in the land at the time of the conveyance. This also is a well-established princi- ple of common law ; Co. Litt. 45, 47 ; Jackson v. Murray, 12 Johns. 201 ; Jackson v. Bull, 1 Johns. Cases, 91 ; Isehamu.Morrice,Cro.Car. 110. But the tenant, in his plea, does not deny that he had, any title to the land ; on the contrary he avers that, before the time of his conveyance, he was in possession of the land under Waters, that afterwards the demand- ants disseized Waters, and being seized by disseizin, they conveyed to the tenant all their right and title, with a covenant of warranty, similar to the one contained in his convey- ance to them. The demandants, in their turn, would be estopped to aver that they had no title in the land, nor is there any such averment in the pleadings. The tenant, at the time of his reconveyance, might have had a valuable interest in the land by possession and improvements, al- though Waters had a paramount title. This interest, whatever it was, passed to the demandants by the ten- ant's deed, and it was all the title he had to convey, or was expected to convey. If under these circumstances the demandants could now acquire, without any consideration, another title by estoppel, we should be com- pelled to admit that estoppels are as odious as they are sometimes said to be. But the doctrine of estoppel aids much in the administration of jus- tice ; it becomes odious only when misunderstood and misapplied. Noth- ing can be more just than the doc- trine of estoppel urged by the de- mandants' counsel, when applied to a conveyance with the general cove- nant of warranty ; but to apply the doctrine to the tenant's restricted conveyance and covenant, would be a manifest perversion of the principle upon which the doctrine is founded." This decision was approved in Trull V. Eastman, 3 Metoalf, (Mass.) 121, and similar decisions were made in Loomis V. Pingree, 43 Maine, 314 ; Bell b. Twilight, 6 Foster, (N. H.) 401, (where there is an elaborate opinion) ; Tillotson u. Kennedy, 5 Alabama, 413; Chauvin u. Wagner, 19 Missouri, 553. BY WAY OF ESTOPPEL OR REBUTTER. 419 estoppel in passing, by mere operation of law, an after- acquired estate, yet it will lose that attribute when it ap- pears that the grantor intended to convey no greater estate than he was possessed of. Thus where in a case in Massa- chusetts, a devisee, being entitled to a vested remainder in one moiety, and a contingent remainder in another moiety of certain real estate held in common with other devisees, con- veyed " all his right, title, and interest in and to the undi- vided real estate devised," with unlimited covenants of war- ranty and for quiet enjoyment, it was held that the deed conveyed only his vested interest, and the warranty being only co-extensive with the grant, he was not thereby estop- ped to claim the contingent interest when it became vested by the happening of the contingency,^ and this doctrine has 1 Blanchard i\ Brooks, 12 Picker- ing, (Mass.) 67. " The grant in the deed," said Shaw, Ch. J., in deliver- ing the opinion, " is of all his right, title, and interest in the land, and not of the land itself, or any particu- lar estate in the land. The warranty is of the premises, that is, of the estate granted, and must be confined to estate vested. A conveyance of all the right, title, and interest in land is certainly sufficient to pass the land itself, if the party conveying has an estate therein, at the time of the conveyance, but it passes no estate which is not then possessed by the party; Brown v. Jackson, 9 VVheatou, 452. The grant in legal effect oper- ated only to pass the vested interest, and not the contingent interest, and the warranty being co-extensive with the grant, did not extend to the con- tingent interest, and, of course, did not operate upon it by way of estop- pel." So in Miller v. Ewing, 6 Gush- ing, (Mass.) 34, it was said : " The principle is that if any person who in terms conveys land or any specific interest in land with warranty, and does not own it, afterwards acquires that same land or specific interest, such acquisition enures to the benefit of the grantee, because the grantor and those who are privy in estate with him are estopped to deny against the terms of the warranty that he had the title in question. The war- ranty is co-extensive with the estate, right, or interest, which the deed purports to pass. But such warranty does not apply to the prese\it case. John Miller and his brothers, when they conveyed to Ball and Day with warranty against themselves and their heirs, had an estate and interest de- rived by descent from their father, and to this, and this alone, both the grant and the warranty applied. So of Ball and wife, when they conveyed to Day. But they did not purport to grant or warrant an estate, which they might, at a future time, derive 420 THE OPERATION OF COVENANTS FOR TITLE been repeatedly and recently confirmed not only in that State but in others.^ by descent from their sister Hepzi- bah Day. They are therefore not es- topped by that warranty from claim- ing this estate by a new and distinct title; Blanchard v. Brooks, 12 Pick- ering, 47 ; Comstock v. Smith, 13 Id. 116. The case of Trull v. Eastman, cited by the defendant, is no author- ity for a contrary doctrine. The deed in that case was a conveyance, in terms, from one brother to another, of all the estate or interest which the grantor had or which might come to him by will or heirship, with the clause, ' so that neither I,' &c. There the premises or interest conveyed ■was a mere possibility, an expect- ancy ; nothing passed by the convey- ance, but it purported to convey a future interest to be acquired ; and the warranty was held co extensive with the grant, and estopped the grantor after the estate accrued, from demanding it. These grants did bind all the grantor's own four fifths of the reversion, but did not extend to the undivided fifth of Hepzibah, who never conveyed to anybody her orig- inal one fifth, which descended to her from her father." 1 Derby v. Jones, 27 Maine, 361 ; Coe V. Persons unknown, 43 Maine, 436; Hall v. Chaffee, 14 N. Hamp. 326 ; Wight v. Shaw, 5 Gushing, (Mass.) 56 ; Wyman v. Harman's Devisees, 5 Grattan, (Va.) 162 ; Lewis V. Baird, 3 M'Lean, 78 ; Valle U.Clemens, 18 Missouri, 490. Where, however, the deed also contains or refers to a recital of any particular estate or interest intended to be con- veyed, the case will be taken out of this exception to the general rule ; Fitzhugh's Heirs v. Tyler, 9 B. Mon- roe, 561. In the late case of Brigham V. Smith, 4 Gray, (Mass.) 297, it was obviously held that the covenant of warranty in a conveyance did not estop the grantor from claiming a way of necessity over the land con- veyed. There are some further qualifica- tions to the doctrine that the estop- pel created by the warranty passes an after-acquired estate. Thus, it has been held that when a deed, by reason of its imperfect execution, is insufficient to pass the estate and therefore to support the warrant}', there will be no estoppel ; Patterson's Lessee v. Pease, 5 Ohio, 193. So, too, the estoppel was held not to ap- ply in Wheelock v. Henshaw, 19 Pickering, 34.5, where, in a case stated, it was agreed by the party en- titled to the benefit of the covenant that the covenantor had no title, so that nothing passed by his deed, as it was said there was estoppel against estoppel. So it was said in Kennedy V. M'Cartney, 4 Porter, (Alab.) 158, '' This rule only applies where the vendor had no valid title at the time of executing the deed, and not where he is inhibited from selling, by the letter, spirit or policy of a legislative act." See as to this, supra, p. 31. In Dominick v. Michael, 4 Sandford's S. C. (N. Y.) 417, it was left unde- cided whether a covenant for further assurance in a void marriage settle- ment, would estop a husband from a title as tenant by the courtesy, acquir- ed by reason of the settlement being BY WAY OF ESTOPPEL OR REBUTTER. 421 There are two grounds upon which most, if not all, of the above cases can be founded, with entire accuracy. One is, that the covenant of warranty operates as a per- void. So in Burohard v. Hubbard, 11 Ohio, 316, where one without title conveyed with warranty, and after- wards received a title from the right- ful owner, but merely as trustee for the purpose of transmitting it to the bond fide purchaser from such right- ful owner, it was held that the doc- trine of estoppel would not be suf- fered to defeat the trust ; see also Buckingham's Lessee v. Hanna, 22 Ohio, (2 Ohio State R.) 555, infra, p. 427. So in Stokes v. Jones,-21 Alabama, 738, (and see S. C. 18 Id. 734,) it was held that a covinous deed from father to son, with warranty, would not pass to the son the after- acquired title by estoppel, as against creditors. In Rector v. Waugh, 17 Missouri, 13, the application of the doctrine of estoppel to cases of war- ranty in a partition, was said to be " very harsh in its operation. A number of proprietors of a town, sup- posing that they have a title to the land on which the town is laid off, make an equal partition of the lots amongst themselves, and mutually convey with warranty. The entire title to the land, which is the subject of partition, afterwards fails. If the matter ended here, it would not be maintained that any one of the pro- prietors had a cause of action against the others, as what he recovered on his warranty he in turn would be com- pelled to refund to him from whom he had recovered on the warranty ho had given. The different warranties would compensate each other, and it would be useless to sue, as each party in the end would be in the situation 36 in which he was before suit was brought. The parties would be all even, and there would be no obliira- tion in law or morality resting on one to indemnify another. After the failure of the first title, one or more of the proprietors acquire a new and distinct title to the land on which the town was laid off, and a former pro- prietor, who has neither contributed, nor offered to contribute anything towards the acquisition of the new title, lays claim to all the lots con- veyed to him by the deed of parti- tion. The common law implied no warranty when partition was made between joint tenants and tenants in common. Indeed, by the common law, partition was not compellable among them. The warranty was only implied on partition among co- parceners, and only extended to the land which was the subject of the partition. The doctrifie which makes an outstanding title, bought in by one joint tenant or tenant in common, en- ure to the benefit of his co-tenants, it seems is one of equitable cognizance, and courts of equity would mould and apply it so as to do justice among the tenants ; Van Home v. Fonda, 5 Johnson's Ch. 388." The case it- self was decided on the ground that the conveyance having omitted the word Jie.irs, a life estate only passed to the -grantee, and that the war- ranty was only co-extensive with the estate to which it was annexed, (see infra, p. 437,) the Court saying, " We feel no reluctance in answering a technical action with a technicall objection.'' 422 THE OPERATION OF COVENANTS FOR TITLE sonal rebutter merely, and, for the purpose of avoiding cir- cuity of action, prevents the grantor and his heirs from setting up the after-acquired estate, which equity would unquestionably compel them to convey to the prior grantee.-^ The other is, that the efiect of the covenant of warranty is as if a particular recital or averment had been introduced, and that the grantor was therefore estopped by his deed from denying its efficacy.^ Neither of these grounds, however, would give to the re- butter or estoppel the high efficacy of actually transferring the after-acquired estate. The practical difference between these two effects, between a covenant of warranty operating as a rebutter, by placing the grantor and his heirs under a disability to claim the after-acquired estate, and operating as an actual transfer of that estate itself, is felt in two important connections : first, as between the purchaser and his heirs and assignees, on the one side, and the grantor and his heirs on the other ; and, secondly, as between the purchaser and a subsequent pur- chaser from the grantor. First, then, as between the purchaser and the grantor and J Lewis V. Baird, 3 M'Lean, 80 ; had paid the purchase-money. Such Henderson v. Overton, 3 Yerger, being the intention, the consequence (Tenn.) 397; Chew v. Barnet, 11 would be that if Nims should after- Serg. & Rawle, 389 ; Reese v. Smith, wards acquire the title, he would be 12 Missouri, 361 ; Steiner v. Baugh- bound to convey it to Beacham, as man, 2 Jones, (12 Penn. State R.) much so as if the contract were one 108, and see infra, p. 447. standing in the form of a bond for 2 Thus in the recent case of Gordon title. Perhaps this would be the con- V. Beacham, 24 Georgia, 150, it was sequence even without the warranty ; said, " Nims, when he made the deed Taylor v. Debar, 2 Cases in Oh. 212 ; to Beacham, had no title, but his deed Wright v. Wright, 1 Ves. 409 ; Noel was an attempt to convey the fee, v. Bewley, 3 Simons, 403 ; Smith v. and it was a deed with a warranty. Baker, 1 Young & Coll. Ch. 223 ; This shows, first, that it was the in- Jones v. Kearney, 1 Drury & Walsh, tendon that the land, the wlwle inter- 159, cited in Eawle on Covenants est in the land, should be conveyed for Tide, 428." to Beacham ; secondly, that Beacham BY WAY OF ESTOPPEL OR REBUTTER. 423 his heirs. It would, at first sight, appear to make Httle dif- ference whether, as between these parties, the after-acquired estate actually passes to the purchaser by direct operation of law, or the latter is secured in his possession from the fact that the grantor and his heirs are not allowed to claim it — • whether the purchaser has the valid title vested in him, or the only person who has a better title is under a disabil- ity that prevents him from setting it up.^ The practical difference would seem to be this : where by the high operation of an estoppel, the after-acquired estate actually vests, by virtue of the covenant of warranty, in the purchaser by mere operation of law, it would probably be held that this estate related back, and took effect as if it had passed by the conveyance to him ; and hence in an action to recover damages for a breach of the covenant of warranty, a verdict would be ordered for the defendant; or if the action were on the covenant for seizin (if one had accom- panied the covenant of warranty), the plaintiff" would be en- titled to nominal damages only,^ and thus, if the land had 1 It was said in a recent case in 3 Gushing, (Mass.) 510 ; Reese v. Oliio, decided since tliese remarks Smith, 12 Missouri, 344, supra, p. 81. were first written, " Whether a con- " If, indeed," said the Court, in Bean veyance executed by one having no v. Welsh, 1 7 Alabama, 7 73, " an estop- title, and subsequently acquiring it, pel could not operateas a conveyance, thus passes to the grantee, or remains or as a medium through which the with the grantor, under a total dis- title would pass to him in whose favor ability to use it to the prejudice of the estoppel works, we might fre- his gi-ant, is in almost all cases quently lock up the title in him and entirely immaterial ; and, therefore, his heirs, against whom the estoppel much looseness of expression is to be operated ; and the party for whose found in the language used in the benefit it was intended, might find adjudged cases which relate to the himself without title, and unable to subject ; " Buckingham's Lessee i'. recover from a mere intruder ; for if Hanna, 22 Ohio, (2 Ohio State R.) the title to the after-acquired estate 556, iiifra, p. 427. did not pass to the grantee by means 2 M'Carthy v. Legget, 3 Hill, of the estoppel, but it only precluded (N. Y.) 134 ; Baxter t>. Bradbury, the grantor from asserting an after- 20 Maine, 260 ; Cornell v. Jackson, acquired title, it would be difficult to ■i€4i THE OPERATION OF COVENANTS FOR TITLE diminished in price, the purchaser would not have the option either to retain it, or to offer to re-convey it and recover its consideration. Such a course of decision, as has been said in a former part of this treatise,^ obviously fastens upon the purchaser the subsequently acquired title nolens volens, de- jjriving him of the right of election whether to accept it, or to fall back upon the covenants ; in other words, it has vir- tually the same effect as an injunction restraining him from I proceeding at law upon the covenants. Thus in a case in Maine, in an action " on the covenant for seizin in a deed ■of warranty," the Court below having rejected evidence of- fered by the defendant to prove that after his conveyance 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 enured to the benefit of the plaintiff by way of estoppel, and the Supreme Court sustained this i position, and held that the plaintiff' by taking a general cove- >nant of warranty, not only assented to, but secured and made available to himself all the legal consequences resulting fr.om that covenant, and that having before the commence- iment of the action acquired the seizin which it was the ob- see how he could recover in eject- Leading Cases, to which reference raent from one who had no title. To has been so frequently made, " There show title in another would not en- can be no doubt of the validity of the able him to recover, and he, having conveyances in question in these none, could not maintain the suit, cases, in equity, nor perhaps that the To give, therefore, the full effect to grantors were estopped from disput- an estoppel, it is clear, that it must ing them at law, but it would seem frequently operate to pass the title." very "doubtful whether they should The mistake, however, seems to be in have been regarded as transferrin" supposing tliat the purchaser's rem- the legal title itself, or as doing any- edy is necessarily at law instead of thing more than entitling the gran- being in a court of equity, or, as was tees to come into equity for a con- said by Mr. Hare, in his note to the veyance. Duchess of Kingston's case, 2 Smith's i Supra, p. 81 et seq. BY WAY OF ESTOPPEL OR REBUTTER. 4>25 ject of both covenants to secure, he could be entitled only to nominal damages.^ 1 Baxter v. Bradbury, 20 Maine, 260. "If," said the Court, "Whit- ney and Whitten were seized imme- diately upon the execution of their deeds, which were executed a few days after that upon which the plain- tiff declares, their seizin at once en- ured and passed to him in virtue of the covenant of general warranty in his deed ; Somes v. Skinner, 3 Pick- ering, 52. It has been insisted by the counsel for the plaintiff that this effect depends upon the election of the grantee, and that the plaintiff here would reject the title arising by estoppel. But we are aware of no legal principle which can sustain this position. In the last case cited the Court says, ' that the general principle to be deduced from all the authorities is that an instrument which legally creates 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 title from the mo- ment such estate comes to the grant- or.' The plaintiff by taking a gen- eral covenant of warranty, not only assented to, but secured and made available to himself all the legal con- sequences resulting from that cove- nant. Having, therefore, under his deed, before the commencement of the action, acquired the seizinVhich it was the object of both covenants to secure, he could be entitled only to nominal damages, and in our judg- ment the evidence was legally admis- sible." But in the recent case in New York 36 * of Tucker v. Clarke, 2 Sandford's Ch. 96, the purchaser refused to receive a valid title which his vendors tendered to him, together with the costs of an action which he had instituted for a breach of his covenants. The ven- dors having tiled a bill to compel him to accept this title, it was dismissed by Sandford, Vice-Ch., who said, " The complainants do not ask the Court to compel a specific perform- ance of an open agreement. They seek to compel the defendant to give up his claims under a deed executed seven years before the bill was filed. The executed contract was, that the complainants were seized of these lots, and, if they are not, that they should repay the consideration-money. This is sought to be reconsidered and turned into a contract, by which, if it should ever turn out that they were not seized, they might either repay the consideration or procure a good title to be conveyed. It would have been a little more plausible if there were a semblance of mutuality about it, so that the defendants might have caused them to procure a good title on discovering the defect. But there is no pretence that the defendant had any such equity. The complainants' ground amounts to this : If the lots had become worth two or three times the price which the defendant paid for them, then they could set up the out^ standing title, deprive the defendant of his speculation, and throw him upon the covenants in his deed, which would restore him to the con- sideration paid. If, on the other hand, the lots should depreciate very much, the complainants would pro- 426 THE OPERATION OF COVENANTS FOR TITLE But if, on the other hand, the acquisition of the after- acquired estate operates merely as a personal rebutter, giv- ing to the covenantee a right to come into equity for its conveyance to him,^ he would have the option of either do- ing this, or of recovering damages on his covenant, and the covenantor could not compel him to do the one in prefer- ence to the other. This point was directly presented in a recent case in Massachusetts, where it was decided, upon great apparent soundness of principle, that the after ac- quired title could not, without the consent of the grantee, cure the outstanding title for him, and retain the price which he paid. There is no equity or fairness in this, and the Court cannot grant the re- hef prayed by the bill without first making such a contract for the pai'- ties ; a contract which they never did make, and, I presume, never would have made, if any failure of title had been supposed probable when the conveyance was executed." And to the same effect was the decision in Bingham v. Weiderwax, 1 Comstock, 513 ; see supra, p. 85. In Woods v. North, 6 Humph. (Tenn.) 310, an ex- ecutor sold with a covenant that, as executor, he was seized, and had good right to convey property which, in fact, belonged to himself in common with other devisees of the testator, and which the will gave him no authority to sell. The purchaser filed a bill to rescind the contract on the ground of imposition, and pending this, the premises were sold by the devisees, and purchased by the defendant, who •then tendered a deed in his individual capacity. But the Court held, that this offer presented no good reason for denying the relief prayed by the bill. " If the complainant were com- pelled to take this title, the price he aTeed to give for the land would enure to the individual benefit of the defendant. He has purchased the land, and is bound to his co-heirs only for the price he bid at the sale, under the decree before mentioned, while he would get all the benefit of the exorbitant prite, it may be, which the complainant was to give. But if a party fraudulently sell and convey an estate to which there was no title, the vendee who comes into equity to rescind the contract, will not be com- pelled to take an after-acquired title from the vendor." (This case is not affected by Blackmore v. Shelby, 8 Humph. (Tenn.) 449, for there the contract had not been consummated by execution of the deed ; and it is familiar that the vendee will be com- pelled to take the title, if acquired by his vendor at any time before final decree.) It may be remarked of Woods V. North that the presence of fraud in the case was only material in giving the plaintiff a standing in equity to rescind the contract, and the principle of the case applies equally in any case where, from other cir- cumstances, the plaintiff would be entitled to relief in equity, or to damages on his covenants in a court of law. 1 See infra, 448. BY WAY OF ESTOPPEL OR REBUTTER. 427 be made to enure to the latter by way of estoppel, so as to defeat his right to a recovery in an action on the covenants for title.^ Secondly, as between the purchaser, and a subsequent purchaser from the grantor. The practical results of this doctrine of estoppel, when applied as between the purchaser and the grantor, yield in importance to those which arise in the connection we are now to consider. It has been already said, that the class of cases which have been cited, hold that the estoppel ' created by a warranty operates actually to transfer the after-acquired title, by mere operation of law. " The obligation created by estoppel," it was said in a 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 sub- jected to all the consequences which accrue to him. It adheres to the land, is transmitted with tlie estate, it be- comes a muniment of title, and all who afterwards acquire the title take it subject to the burden which the existence of the fact imposes on it," and the same doctrine has been recognized in many other cases.^ Such a course of de- 1 Blanchardii. Ellis, 1 Gray, (Mass.) and in the recent case of Jarvis v. 193. See the opinion of the Court, Aikens, 22 Vermont, 639, it was supra, p. 87, et seq. said: "The estoppel, when it runs 2 Douglass V. Scott, 5 Ohio, 198. with the land, operates upon the 3 Wark V. Willard, 13 N. Hamp. title, so as actually to alter the inter- 389 ; White v. Patten, 24 Pickering, est in it in the hands of the heir or 324; Dudley v. Cadwell, 19 Con- assigns of the person bound by the nect. 226 ; Pike v. Galvln, 29 Maine, estoppel, as well as in the hands of 185; Bank of Utica v. Merjereau, such person himself;" see this case, 3 Barbour's Ch. (N. Y.) 567; Massie infra, p. 431. In the late case in V. Sebastian, 4 Bibb, (Ken.) 436. Ohio, of Buckingham's Lessee v. In Dickerson v. Talbot, 14 B. Mou- Hanna, the application of the doc- roe, (Ken.) 64, it was said that the trineof estoppel, to the extentclaimed estoppel passed not the equitable but by some of the New England cases, the legal title to the prior grantee; would have been unjust in the ex- 4.28 THE OPERATION OF COVENANTS FOR TITLE cision leads to the result that the after-acquired title vests treme, and was properly limited by the Court. One Ramey, -who had no title whatever to certain land, mortgaged it in 1830 to the plaintiff, and in 1839, the land was patented to him by the government. The equitable title to the land was in Eveland, who, in 1817, had conveyed it to the defendant. In 1 84 1 , Eveland filed a bill against Ramey, setting up his equitable ownership, and that the patent to the latter was made as trustee for him, and praying for a conveyance of the legal title, which, in 1842, was decreed to be made. These proceedings in equity were offered in evidence in an ejectment by the plaintiff (the mortgagee of Ramey) against the defendant, (the grantee of Eveland,) and were ad- mitted by the Court. " Upon this state of facts," said Ranney, J., who delivered the opinion in the Supreme Court, "it is claimed by the plain- tiff's counsel that when Ramey be- came invested with the legal title in 1839, by patent from the government, it instantly passed to his grantees in the mortgage by force of the cove- nant of warranty, and that there was, consequently, no title remaining in Ramey upon which the decree subsequently made in favor of Eve- land could operate. The legal title having passed to the mortgagee, could only be diverted in favor of para- mount equity, in a proceeding to which they were parties, and by de- cree against them. Whether a con- veyance executed by one having no title and subsequently acquiring it, thus passes to the grantee, or remains with the grantor under a total disa- bility to use it to the prejudice of his grant is, in almost all cases, entirely immaterial ; and, therefore, much looseness of expression is to be found in the language used in the adjudged cases which relate to the subject. Indeed, we think it is not very ma- terial in this case ; but as it has been particularly adverted to in the argu- ment, we shall express our views upon it. " It is universally agreed, that the subsequently acquired title enures to the benefit of the grantee by way of estoppel, and binds not only the grantor, but all persons claiming under or through him, and passes with the land to any and all persons holding under the grantee, (citing Douglass V. Scott, 5 Ohio, 198, supra, p. 427, &c.) .... The import of the language used in these cases is cer- tainly unmistakable. It supposes the after-acquired title to pass from the grantor to his heirs or assigns, but still conclusively bound by the es- toppel, creating a total disability in their hands to use it to the prejudice of the former grant with warranty. Indeed, it seems very clear that the doctrine of estoppel could have no possible application in such an event unless this were the case. If the title did not remain in the grantor, but immediately passed to the gran- tee, it would be impossible that any interest or title could descend, upon the death of the grantor, to his heir, or pass by any subsequent deed to his assignee. If it did not, neither could have any title to assert, and consequently could not be said to be estopped from asserting what they had not ; since the veiy idea of an estoppel is a denial of the right of a BY WAY OF ESTOPPEL OR REBUTTEU. 429 in the grantee, not only as against the grantor and his heirs, party to assert the truth, or set up an interest or title he has, when it would conflict with his own previous acknowledgment or undertaking un- der seal, or operate a fraud on others to do so. " The ground upon which the doc- trine of estoppel has always been applied to deeds is, that it avoids circuity of action ; Jackson v. Wal- dron, 13 Wendell, 206. It had its origin in the ancient law when the grantor by his covenant of wai'ranty was bound, upon the eviction of the grantee, to restore him lands of equal yalue. This has been to this day no further changed than to allow a pe- cuniary equivalent to be awarded in place of lands. But for the applica- tion of this doctrine, the grantor might, with his subsequently acquired title, oust his grantee ; and the mo- ment this was done, the right of the grantee would be perfect to compel the grantor to restore him the same or other lands of equal value ; thus attaining in two suits precisely what is now attained by disabling the grantor in the first instance from using the after-acquired title to the prejudice of his grant. " But if the title passed from the grantor, as soon as it came to him, to his grantee, it is evident the former could not recover the possession, and the latter would have no right to re- cover on his covenant. The grantee would have the title, with perfect ability to depend upon it, and of course perfect ability to prevent a breach of the covenant, without the necessity of calling to his aid the doctrine of estoppel, and, indeed, without any possibility of applying it. The remedy afforded to the gran- tee in a court of equity is entirely inconsistent with the idea that the title passes. Sugden on Vendors, voh 3, p. 430, (see supra, p. 191, and infra, p. 448,) lays down the doctrine in that court thus: 'And if a man sell an estate to which he has no title, and after the conveyance, ac- quire the title, he will be compelled to convey it to the purchaser.' How convey a title which the grantor no longer has? Or what necessity or propriety of decreeing a conveyance to a purchaser, who already has the title in advance of making the de- cree ? . . . But it is, perhaps, not very material, in the decision of this case, whether the view we have taken, or that of the plaintiff's coun- sel, is adopted. Whether the estop- pel works upon the estate and binds an after-acquired title as between parties and privies, or immediately passes the title to the grantee, in ordi- nary cases it is clear there is a limit to its operation which controls it in the present case, and deprives the lessors of the plaintiff of all benefit from the doctrine in either point of view. .... In this case, the defendant claims by an equitable title para- mount to Kamey, and long anterior to the date of the mortgage to the lessors of the plaintiff. When the legal title came to Ramey, he held it as a mere trustee for Eveland, and when it was taken from him by the decree, it went entirely unencum- bered with any estoppel arising from the covenant in the mortgage. In- deed, if the legal title still remained in Ramey or the lessors of the plain- tiff, it is by no means certain that 430 THE OPERATION OF COVENANTS FOR TITLE but as against a subsequent purchaser from the latter of the after-acquired title.^ This result, if applied to the case of a hond fide pur- chaser 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 must search the registry of deeds, not only from the time when his grantor acquired title, but also for a series of years before that time, in order to discover whether he had previously made any conveyance (though without title), to any other person ; for if he have, that person will, according to this doctrine, hold the estate as against this purchaser ; and if the property has passed through several hands, a similar search must be made with respect to every one through whose hands the title has thus passed.^ either would be permitted to disturb the possession of the cestui que trust even in an action of ejectment. . . . Upon the whole case, we are of opin- ion that the legal title conveyed to Kamey by patent from the govern- ment, remained in him in trust for Eveland until it was devested by the decree and transferred to him ; that the record was admissible to establish this fact ; and further, to show, that Eveland obtained, claimed, and pos- sessed the land by a right paramount to Ramey and anterior to the mort- gage, and he is, therefore, not prima facie estopped to assert the legal title thus derived by the covenant of war- ranty which Kamey made with the lessors of the plaintiff." 1 In the case of the Great Falls Co. V. Worster, 15 N. Hamp. 452, it seems to have been taken for granted • that this doctrine would apply only to the case of a purchaser with no- tice, but in other cases the rule has been enforced even against pur- chasers without notice of the prior conveyance. See the ensuing note. 2 This argument was pressed upon the Supreme Court of Massachusetts in White v. Patten, 24 Pickering, 324, and disregarded. The facts of that case afford a striking illustration of the result referred to in the text. On the 30th of December, 1833, Thayer, who had no title whatever to certain land, but who was in pos- session, mortgaged it with a covenant of warranty to White, who put his mortgage on record on the 13 th of February following. On the 20th of July, 1834, Perry, the father-in- law of Thayer, conveyed this land to the latter, who the next day mort- gaged it to Patten. This mortgage, and the deed from Perry to Thaj-er, were recorded on the 2d of August fol- lowing. Thayer continued in posses- BY WAY OF ESTOPPEL OR REBUTTER. 431 If this doctrine in question were limited in its application to cases where it was capable of being put upon the ground sion until 1835, ■when he was dispos- sessed by Patten, under an execution upon a judgment obtained against him. A ■writ of entry ■was then brought by White against Patten. Under these circumstances. Patten's counsel urged, ■with great force, that under the registry acts. Patten had done enough to search the record back to the time ■when Thayer ac- quired title, that is, from July 20th, 1834 ; and that any search before that time should properly be directed to conveyances or mortgages given by Perry, the real owner, and not by Thayer, ■who had no shadow of title. Nevertheless, the Court held, upon the authority of cases arising under leases (see them cited and explained infra, p. 440) that the estoppel created by the mortgage in 1833, bound the subsequent mortgagee of the after- acquired title, and the case was de- cided in favor of the demandant. Such an application of the principle of estoppel obviously strikes a deci- sive blow at the protection intended to be afforded by our registry acts. It is moreover, curious, that the case was perhaps rightly decided upon the facts, but the point was overlooked in the decision. Thayer, the mortgagor, was in possession, which might have been enough to put the subsequent mortgagor upon inquiry, and thus deprive him of the protection otherwise afforded by the registry acts, as these acts are only intended to protect a purchaser who is without actual or constructive no- tice. It is evident, however, that many cases might occur in which there is no actual possession, and where, therefore, the element of no- tice could not be introduced to the prejudice of the subsequent pur- chaser. The argument derived from the registry acts was also urged in the recent case of Jarvis v. Aikens, 25 Vermont, 635, but the Court said, "It is not seriously claimed by the counsel for Catherine Murphy, but that the subsequent title acquired by Aikens would enure to the ben- efit of Jarvis, so as to estop Aikens and his heirs from claiming title against him and his assignees ; but it is said that the principle should not be applied as between the pur- chaser and a subsequent purchaser from the grantor, and that to so apply it would be at war with our registry system. This is a point of some im- portance, and well deserves consider- ation." After then quoting the lan- guage used in Douglass v. Scott, supra, p. 427, the opinion continued : " In this view of the case, our registry system can have no control of the question. There was no title in Aikens when he deeded to Murphy ; it had before passed to Jarvis, and was vested in him. In the case from 24 Pickering, 324, (White v. Patten, supra,') the point was specially made by counsel that this doctrine was in conflict with their registry system, but the Court did not regard the objection. The same objection has been made in other cases, but with- out effect." In recent cases in Georgia, how- ever, the law is differently consid- 432 THE OPERATION OF COVENANTS FOR TITLE of personal rebutter, for avoiding' circuity of action, then such a result could not in any event occur, for although there would be a circuity of action if the heir of the cove- nantor were allowed to reclaim the estate in opposition to his ancestor's deed, inasmuch as he would be immediately compelled to restore its value by an action on the covenant, yet such would not be the case as regards the assignee of ered. In Bivins v. Vinzant, 15 Geor- gia, 521, one wlio had drawn a tract of land in a lottery, conveyed it by deed, containing a covenant of war- ranty, to a purchaser ; the tract was subsequently granted by the State to the drawer, who then conveyed it to another purchaser, and it was held that the title did not enure to the prior purchaser by estoppel ; and in the subsequent case of Way v. Arnold, 18 Georgia, 181, the Court "strongly inclined to the opinion that our reg- istry acts, under the modern form of conveyancing, were a. virtual re- peal of the doctrine of estoppel." In Linsey v. Ramsey, 22 Georgia, 627, the warranty was held to rebut (not to estop) the grantor who had made the deed before he acquired title ; " and after he had acquired title, he himself, in the face of his warranty, sued his warrantee for the land," and was, of course, held not to be entitled to recover. While the sheets of the first edi- tion of this treatise were going through the press, a case occurred in practice which further illustrates the doctrine here referred to. A house and lot which were subject to a ground-rent, were sold to a purchaser " under and subject to the payment of the said ground- rent," but at the end of the haben- dum was inserted, "freed, exoner- ated, discharged, and forever indem- nified and saved harmless against him, the said (vendor) and his heirs, of and from the said ground-rent, and every part thereof." A year after this deed was executed, the ground-rent was conveyed to this vendor. This was not, of course, an extinguishment of the ground- rent, as the title to the ground and the rent was never united in the same person at one time ; Charnley V. Hansbury, 1 Harris, (l.S Penn. State 11.) 16. Upon a sale made by the original purchaser, it was ob- jected to the title, that although by the words in the habendum, the ven- dor and his heirs were estopped, yet that in case the ground-rent should be conveyed to a subsequent pur- chaser, he would not be bound to search the record for conveyances by his vendor prior to the time when he acquired title to the ground-rent, and a release was therefore insisted upon and obtained from the original vendor. Such a release would have been needless, if the doctrine of White V. Patten be sound, as the estoppel created by the covenant would have operated even upon a subsequent purchaser from the orig- inal vendor. BY WAY OF ESTOPPEL OR REBUTTER. 433 the covenantor. He would be under no obligation to the covenantee or any one claiming under him ; there would be no risk of liability to circuity of action, and consequently no rebutter. There are, moreover, two classes of cases which appear to show that the doctrire of estoppel, as applied in many of our States, to passing an after-acquired estate, is not based, as many authorities would seem to found it, solely on the principle of preventing circuity of action. One of these is, as has just been seen, where the ques- tion has arisen between the assignees of the original title, and the assignees of that subsequently acquired; the former having, of course, no right of action against the latter, there can be no circuity of action. The other class of cases Is where It has been held that although, by a married woman's joinder with her husband In a covenant of warranty, she cannot be held liable In dam- ages after his death, yet that the covenant will estop her,, and those claiming under her, from setting up any claim t(>> an after-acquired tltle.-^ The rule, however, adopted by this- class of cases as to the estoppel of a married woman, has- 1 Hill's Lessee w. West, 8 Ohio, 226; takes, in conjunction with her hus- Massie v. Sebastian, 4 Bibb, (Ken.) band, to convey his land with cove- 436 ; Fowler v. Shearer, 7 Mass. 21 ; nants of warranty, it is sufficient to. Colcord V. Swan, Id. 291 ; Nash v. protect her from the payment ot Spofford, 10 Metcalf, ^Mass.) 192, but damages for the breach of those cov- see the later cases in Massachusetts, enants ; for all other purposes they infra, p. 434. " These decisions," it should be held operative. If, then,, was said in Hill's Lessee v. West, after the execution of the deed to the " may not seem to be founded upon lessor of the plaintiff, Hildah and' the reasons which are usually assigned Mary Wilcox acquired title to the why the covenants in a deed should premises in controversy, that title operate by way of estoppel, that is, to enured to the benefit of the lessor ot prevent circuity of actions ; still they the plaintiff, and neither they or seem to us to be reasonable, and such those claiming under them shall be as tend to the furtherance of justice; permitted to defeat the plaintiff by and when a married woman under- setting up this after-acquired title."" 37 4S-fc THE OPERATION OF COVEXANTS FOR TITLE been by no means universally recognized ; ■* and, in some States, the operation of such a rule is prevented by statutory enactment.^ It is believed, and so, indeed, most of the authorities ad- mit, that the doctrine which has been adopted in giving to the covenant of warranty all the high operation of an estop- pel in passing an after-acquired estate by mere operation of law, and connecting it with the principle of preventing cir- cuity of action, has arisen from a peculiar view which has been taken of a single section of Littleton, and the commen- tary of Lord Coke upon that section. The passages re- ferred to are these : In section 446 of Littleton he says, " No right passeth by a release but the right which the releasor hath at the time of tlie release made. For if there he father and son, and the father be disseized, and the son (living his father) releaseth by his deed to the disseizor all 1 Jackson v. Vanderheydeu, 17 Johns. 1G7 ; Martin v. Dwelly, 6 Wendell, (N. Y.) 14 ; Carpenter v. Schermerliorn, 2 Barb. Ch. (N. Y.) 314 ; Domlnick v. Micliael, 4 Sand- ford, S. C. (N. Y.) 424 ; WadleigU v. Glines, 6 N. Hamp. 18; Den v. Des- marest, 1 Zabriskie, (N. J.) 541. In "Wjglit V. Sliaw, 6 Cusliing, (Mass.) 65, 66, the question ivas left unde- cided, but in the recent case of Lowell V. Daniels, 2 Gray, (Mass.) 168, it ■was distinctly held that a married Tvoman who executed a deed of her real estate with covenants of wai-- ranty, bearing date previously to the marriage, by the name which she then bore, with the fraudulent pur- pose of imposing upon some person to be affected by it, and without dis- closing the fact of her marriage, did not thereby estop herself and her heirs to set up her title in the land as against her grantee, or against a purchaser from him without no- tice. - Thus, in Virginia, the Eevised Code of 1849 declares, that a privy examination of the wife shall operate to pass the right of dower, and all right and interest of every nature which, at the dale of such writing, she may have, but such writing shaU not operate any further upon the wife, or her representatives, by means of any covenant of warranty con- tained therein. This was taken in substance for a prior act re-enacted in 1819 (and was, perhaps, called into being by the case of Nelson v. Harwood, 3 Call, 342 ; see supra, ch. xii.,) and similar enactments pre- vail in the States of Delaware, Illi- nois, Indiana, Michigan, and Mis- souri; see in the latter State, Chau- viu V. Wagner, 18 Missouri, 542. BY WAY OF ESTOPPEL OR REBUTTER. 4^85 the right which he hath or may have in the same tenements, without clause of warranty, &c,, and after the father dieth, &c., the son may lawfully enter upor the possession of the disseizor, for that he had no right in his father's life, but the right descended to him after the release made by the death of his father; " to which Lord Coke adds, "If there be a warranty annexed to the release, then the son shall be barred, for albeit the release cannot bar the right for the cause aforesaid, yet the warranty may rebut and bar him and his heirs of a future right which was not in him at that time, and the reason, (which is in all cases to be sought out,) wherefore a warranty, being a covenant real, should bar a future right, is for avoiding a circuity of action, which is not favored in law, as he that made the warranty should recover the land against the terre-tenant, and he, by force of the warranty, to have as much in value against the same person." ^ It will be observed that, in the above passages, the word " estoppel " is not employed.^ The doctrine seems not to be thought a branch of the law of estoppel — the warranty operates by way of rebutter, to avoid circuity of action — an effect far different from that of estoppel, for, although Coke, in another part of his Commentary,^ speaks of rebut- ter as being " a kind of estoppel," yet, as has been said, this has reference merely to the ordinary and personal effect of an estoppel, and not to its extraordinary effect of actually passing an estate. If such had really been the case, the 1 Co. Litt. 265 a. toppel ; " but it is believed that no 2 The followinrr sentence from Co. authority can be cited to show that a Litt. 352 a, is often quoted in con- warranty, unaccompanied by a feoff- nection with them : " Privies in blood, ment or fine, made by one who had as the heir, privies in estate, as the no estate, to another who^ had no feoffee, lessee, &c., privies in law, previous estate, possessed this quality comprehending those who came in of an estoppel. by act of law or in the post, shall be 3 Co. Litt. 352 b. bound by and take advantage of es- 436 THE OPERATION OF COVENANTS FOR TITLE whole system of feudal conveyances would have been de- ranged. All distinction between the common-law modes of assurance would have been confounded, and a grant or a release with warranty would have been as effectual in the transfer of a future estate as a feoffment or fine.^ The passages in Littleton and Coke may perhaps be bet- ter applied to the law at the present day, by a single refer- ence to one of the principles upon which warranty was based. It was one of the peculiar attributes of a warranty that it required an estate to support it.^ Such an estate was created by a feoffment or a fine, the solemnity of which was such as to create and pass an estate, whether rightfully or wrongfully.^ To a feoffment, livery of seizin was neces- sary ; but livery of seizin could not be given unless the feoffor had the actual possession ; and when this was the case, the delivery of the possession (of which the charter of feoffment was merely the authentication) was an act of such notoriety as to pass an actual estate to the feoffee — an es- tate of fee simple if the feoSbr so willed it. Such an estate could support a warranty. The same doctrine applied to a ifine, which was of equal solemnity and notoriety as a feoff- ment, and indeed always presupposed one, and which, more- over, 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 ob- tain the possession, and when this was done, although the feudal law declared that his feoffment should pass an estate, yet it was an estate subject to be devested by the lawful owner, and which was not assisted by the warranty, either by way of estoppel or otherwise. Nor, in fact, had the 1 See the able note to the Duchess v. Triplett, 1 A. K. Marshall, (Ken.) of Kingston's case, 2 Smith's Leading 495. Cases. 3 Litt. § 599-Gll ; Co. Litt. 387 a, 2 Seymor's ease, 10 Coke, 96 ; Piatt 367 a. I!. Oliver, 3 McLean, 39 ; Keroheval BY WAY OF ESTOPPEL OR REBUTTER. 4S7 warranty any operation whatever when the possession was wrongfully obtained, it being an inflexible rule that a war- ranty commencing by disseizin, and made for the purpose of giving effect to that disseizin, was void.' Now a grant or release did not possess the high qualities of a feoffment or fine.^ A grant, as applied to corporeal hereditaments, passed estates in reversion or remainder ^ — a release operated to relinquish an interest or claim to one already in possession. Neither of them possessed the power to create and transfer an actual estate, where none previously existed. It was a familiar principle that a warranty could not enlarge an estate,* and consequently it could not make 1 " Warranty that commences by disseizin," says Littleton, § 698, " is in this manner ; as where there is father and son, and the son purchases the lands and letteth the same land to his father for term of years, and the father by his deed infeoffeth another in fee, and binds him and his heirs to warranty, and the father dies, whereby the warranty descends to the son, this warranty shall not bar the sou, for notwithstanding this warranty, the son may well enter in- to the land, or have an assize against the alienee if he will, because the warranty commenced by disseizm , for when the father, who had but an estate for a term of years, made a feolfment in fee, this was a disseizin to the son, of the freehold which was then in the son. In the same man- ner it is, if the son letteth to the father the land to hold at will, and after the father maketh a feoifment with warranty. And as it is said of the father, so it may be said of every other ancestor. In the same manner is it, if tenant by elegit, tenant by statute merchant, or tenant by stat- 37« ute staple, make a feoffment in fee with warranty, this shall not bar the heir who ought to have the land, be- cause such warranties commence by disseizin.'' See also Co. Litt. 357, 368, &c. 2 See the celebrated argument of Mr. Knowler in Doe v. Whitehead, 2 Burrow, 704. 3 Touchstone, 227, 228 ; 2 Pres- ton's Conveyancing, 209. 1 Year Book, 41 Ass. 35 ; Co. Litt. 385 b ; Seymor's case, 10 Coke, 97; nor consequently can the mod- ern covenants for title ; Hurd v. Gushing, 7 Pickering, (Mass.) 169 ; Corbin v. Healy, 20 Id. 614 ; Ken- dall V. Brown, 7 Gray, (Mass.) 212; Wright V. Henon, 5 Klch. Eq. (S. Car.) 448; Patterson v. Moore, 15 Arkansas, 225 ; Rector v. Waugh, 1 7 Missouri, 27 ; Den d. Roberts v. For- syth, 3 Devereux, (N. Car.) 26; Den d. SncU V. Toung, 3 Iredell, (N. Car.) 379 ; and hence it has been held that a conveyance which for want of the word heirs passes only a life estate, can neither be enlarged into a fee by the presence of a 438 THE OPERATION OF COVENANTS FOR TITLE valid that which would otherwise be invalid. Hence it fol- lows that a grant or a release with warranty, of a defeasi- ble estate, or no estate at all, to one having no previous in- terest, was as ineffectual as if there had been no warranty. Had this been otherwise — had the effect of a warranty been to convey to a grantee or releasee any subsequently- acquired estate, there would have been an end of the com- mon law rule that a future estate could not be barred by a mere deed to a stranger.'^ I f^ however, the grantee or re- leasee had a previous interest or estate in the land, the war- ranty would knit itself to that, and, having then something to support it, would rebut the warrantor and his heirs in the same manner as if the supporting estate had been cre- ated by a feoffment or fine. By the application of these principles to the case put by Littleton, it will be seen that the release would, of itself, have had no operation whatever, and indeed he says as much in the first sentence. The son having no estate, the release of course passed none. The reason why the war- iranty was efficacious in the case he puts, is that the releasee •had an estate to which the warranty could attach itself, and that the ancestor's estate had been put to a right of entry before the warranty was made. Had this not been so — had the father's estate still continued in him, the warranty would have been utterly void. Of the ten requisites .Hsually mentioned as necessary to give effect to a warranty, tliere are two which are here essentially applicable. First, ithat the estate to be barred should have been devested and covenant of warranty to the grantee 1 " Warranties do bind only rights .and his heirs, nor will such a cove- and actions which are t;i esse at the nant operate upon the latter by way time of the warranty made, and not ■ of rebutter ; Register v. Rowell, 3 rights and actions which are to ac- . Jones' Law, (N. Car.) 312. In Shaw crue after the waiTanty created;" V. Galbraith, 7 Barr, (Pa.) Ill, this Holland v. Jackson, J. Bridgman's ilatter point was however differently Rep. 77. considered, see infra, p. 445. BY WAY OF ESTOPPEL OR REBUTTER. 4S9 put to a right of entry before, or at the time when the war- ranty was made ; and secondly, that the estate of the war- rantee should have had a substantial existence before or at that time.^ Both of these requisites were present in the case referred to. The estate of the father had been devested and put to a right of entry before the warranty made by the son, and also the warrantee had a substantial interest or estate at the time he received the warranty. If the war- rantee had been a total stranger, he would have had no pre- vious estate to which the warranty could be attached, and as the release only passed what estate the releasor had (^ which was no estate at all) and did not, like a feoffment, create an actual estate, the warranty Avould have been wholly inoperative.^ If the mere addition of a warranty 1 " To every good warrant^' in deed that must bar and bind, these things are requisite. First, that the per- son that doth warrant be a person able. Second, that the warranty be made by deed. Third, that there be some estate to which the warranty is annexed that may support it. Fourth, that the estate to which the warranty is annexed be such an es- tate as is able to support it. Fifth, that the warranty descend upon him that is heir of the whole blood by the common law to him that made the warranty. Sixth, that he that is heir do continue to be so, and that neither the descent of the title nor the warranty be interrupted. Sev- enth, that the estate of freehold that is to be barred be put to a right of entry or action before or at the time of the warranty made, and that he to whom the warranty doth descend have then but a right to the land, for a warranty will not bar any estate of freehold or inheritance in esse, in possession, reversion or remainder, that is not displaced and put to a right before or at the time of the warranty made, though after and at the time of the descent of the war- ranty, the estate of freehold or in- heritance be displaced and devested. Eighth, that warranty take effect in the lifetime of the ancestor, and that he be bound by it, for the heir shall never be bound by an express war- ranty, but where the ancestor was bound by the same warranty. Ninth, that the heir claim in the same right that the ancestor does. Tenth, that the heir that is to be barred by the warranty be of full age at the time of the fall of the warranty." Touch- stone, 186. 2 This line of argument was adopt- ed by the counsel for the defendant in the very recent case of Rector v. Waugh, 17 Missouri, 13, as to which the Court said, "The strong views presented by the counsel for the de- fendant, are supported by a great 440 THE OPERATION OF COVENANTS FOR TITLE could have produced the effect supposed to have been attrib- uted to it — if estoppel and warranty had been as identical as they are supposed to be, and if the interest, when it accrued, fed the warranty, the introduction of conveyances under the statute of uses, would have been needless,^ and future estates could have been transferred to a mere stran- ger, without the notoriety of a feoffment or fiue.^ It is not meant by these remarks to deny that the pres- ence of a covenant of warranty may not properly operate as a personal rebutter, which will prevent the grantor and his heirs from getting possession of the land when he or they subsequently acquire a title to it. Such a principle seems to be correct, but it is, with great deference, submit- ted, that it is not strictly a branch of the law of estoppel, in the absolute and technical sense in which that word has in some cases been used.^ ■weight of authority, but the reason- ing on which they are founded has been insensibly undermined, and principles which stood out in bold relief when the feudal policy was the idol of the law, have gradually lost their force." The Court how- ever decided the case on another gi-ound against the estoppel ; see su- pra, p. 421. i A bargain and sale with war- ranty by a tenant ibr life, would, according to this doctrine, have pro- duced a discontinuance — a result not properly attributable to such a mode of conveyance as a general rule; Gilbert's Tenures, 119; Sey- mor's case, 10 Coke, 96; McKee v. Pfout, 3 Dallas, 48G ; Preston's Law Tracts, Tract 2. 2 So, to render effectual a cove- nant to stand seized to uses, it was necessary that the covenantor should have a vested estate ; and therefore a covenant to stand seized of land which the covenantor should after- wards purchase, was void ; 2 San- ders on Uses, 83 ; Preston's note to the Touchstone, p. 165. "A man cannot by a covenant raise a use out of land which he hath not ; " Yelver- ton V. Yelverton, Cro. Eliz. 401 ; S. C. Moore, 342, although at the pres- ent day, a covenant to charge or dis- pose of lands hereafter to be ac- quired, will be enforced in equity ; Wright V. Wright, 1 Voscy, Sen. 409 ; Metcalfe v. Archbishop of York, 1 JMylne & Craig, 547 ; Lyde v. Mynn, 1 JMylne & Keen, 683 ; S. C. 4 Si- mons, 505 ; Wcllesley v. Wellesley, 4 Mylne & Craig, 57i). 3 A class of cases is often quoted to support the corinection between a covenant of warranty and estoppel. These are cases of leases, where the lessor's subsequently-acquired estate enures to the benefit of the lessee, BY WAY OF ESTOPPEL OR REBUTTER. 441 It is evident, however, that in this country a peculiar effect has, at least in many cases, been given to the cove- nant of warranty, which is deemed to possess, as respects this doctrine of estoppel, an efficacy denied to the other personal covenants for title. It seems to have been thought that a covenant that the vendor was seized, or that the pur- chaser should quietly enjoy, was less powerful in this re- spect than a covenant to warrant and defend the land itself. As such a covenant is seldom or never employed in Eng- lish conveyancing, the doctrine of estoppel, which is based upon its presence, may be said to be, at the present day, exclusively an American one. According to this doctrine, a deed with a covenant of warranty on this side of the At- lantic may, perhaps, be likened to a deed to lead the future uses of a fine or a recovery in England.^ In Pennsylvania, it cannot be said that the doctrine adopted by the New England cases has been recognized to its full extent, viz., that when a conveyance contains a covenant and a subsequent purchaser takes there is room for the operation of the land subject to the lease : Kaw- estoppel in its highest function, lyns' case, 4 Coke, 52 ; Trevivan v. l The doctrine held by the English Lawrence, 1 Salkeld, 276 ; Weale v. Courts at the present day on the sub- Lower, PoUexfen, 66. But these ject of estoppel, will be found in- cases proceed upon a diiferent prin- fra, p. 447. It may perhaps be ciple. In the first place, the absence argued, in favor of the doctrine of or presence of a warranty formed no estoppel, as held in many parts of this part of them, and we have no rea- country, that the effect of a covenant son to suppose, as was suggested in of warranty is to raise a use in favor Pelletreau v. Jackson, 11 Wendell, of the purchaser, which the statute (N. y.) 119, that the decision in would at once execute; but the an- Kawlyns' case turned upon the im- swer to this may perhaps be, that it plied covenant for quiet enjoyment, was requisite to the execution of a Secondly, the relation between the use under the statute, that there landlord and tenant is, in every de- should be an estate or seizin out of gree, more peculiar than that of ven- which the use was to arise, and there- dor and purchaser. There is always fore contingent uses, during the Sus- an understood contract between them pension of the contingency, could that the lessor is conveying an estate not be executed by the statute ; 1 which will support the lease, and Sanders on Uses, 231/ 44£ THE OPERATION OP COVENANTS FOR TITLE of general warranty, an after-acquired title actually passes by estoppel — at least it cannot be said to depend entirely upon the presence or absence of a covenant of warranty. In an early case,^ Tilghman, Ch. J., in delivering the opin- ion of the Court said : " J. M. sells and conveys land to which he has no title, but afterwards acquires title. Can his heirs recover against his grantees 1 It appears to me that in such case they would be estopped by their father's deed from denying his title, and if there were occasion for further assurance, equity would compel them to make it ; " and Yeates, J., added : " In equity, a grantor conveying land for which he has no title at the time, shall be considered a trustee for the grantee, in case at any time afterwards he should acquire title." So, in a very able opinion by Gibson, Ch. J., in Chew v. Barnet,^ he held that the acquisition of the subsequent title enabled the prior purchaser to demand in equity a conveyance from the grantor, but, " not as vest- ing the title in him of itself, as contended for, by estoppel. . . In the case of a conveyance before the grantor has acquired the title, the legal estate is not transferred by the statute of uses, but the conveyance operates, as I have said, as an agreement which the grantee is entitled to have 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 vendor subsequently purchased the part of it in question, a chancellor would have compelled him to convey it over again, in order to make good his former deed ; and this, 1 McWilliams v. Nisly, 2 Serg. & Smith i: Baker, 1 Young & Collier's Eawle, 515. Ch. 223, supra, p. 190; Jones v. 2 11 Serg. & Eawle, 389. Kearney, 1 Drury and Walsh, 159 ; 3 See accordingly Taylor v. Dabar, Goodson v. Beacham, 24 Georgia, 2 Gas. in Ch. 212, supra, p. 189; 154, where this note was cited. Wright v. Wright, 1 Vesey, Sen. 409; ■* Steiner v. Baughman, 2 Jones, ^'ocl c. Bewley, 3 Simons, 103; (12 Penn. State R.) 108. BY WAY OF ESTOPPEL OR REBUTTER. 443 on an equity from the fact that he had received value for it." In Brown v. McCormick, however, it was held, that an after-acquired estate " by operation of law immediately passed to the grantee."^ In Kennedy v. Skeer,^ there was 1 6 Watts, 610. This -was a strong case. McConnel, claiming to own the premises under a survey, con- veyed in 1788 to Harvey, by deed containing covenants for seizin and general warranty. Nine years after, the real owners, Uriah, David and JUercer Brown conveyed to McCon- nel, who, to secui-e the payment of the consideration-money, on the same day gave his bonds with a warrant of attorney to enter judgment, and judgments were entered upon them six days after. Under these judg- ments, the premises were sold by the sherilf, whose vendee brought eject- ment against those claiming under Harvey ; and Rogers, J., who deliv- ered the opinion of the Court, said : " The first question is as to the legal effect of the deeds, which the Couit below decided was to pass immedi- ately to Harvey all the right which Kobert M'Connel acquired in the land by virtue of the deed from the Browns to him. And this is a prin- ciple too well settled to admit of dis- pute. When a person conveys land, in which he has no interest at the time, but afterwards acquires a title to the same land, he will not be per- mitted to claim in opposition to his deed, from the grantee, or any per- son claiming title from 'the grantee ; 12 Johns. Rep. 207 ; 11 Johns. Rep. 91 ; Co. Litt. 265. The operation of the principle is, that immediately on the execution of the deed of the 10th of November, 1797, from David Brown and othei-s to Robert M'Con- nel, it enured to the benefit of Wil- liam Harvey, the grantee of the land, by virtue of the previous deed of the 2d of January, 1788. At that period, therefore, by operation of law, Wil- liam Harvey was the owner of the premises in question. And the legal effect will be the same, whatever may have been the intention of M'Connel in making the purchase from Brown, although the presumption undoubt- edly is, that it was intended, in good faith, to carry into effect his sale to William Harvey. But it is alleged, that the judgment on which the plaintiffs' claim, being for the pur- chase-money, although not entered until six days after the conveyance, is a lien on the property conveyed by Brown to M'Connel. But bonds, with a warrant of attorney to confess judgment, although given to secure the purchase-money, are but a per- sonal security until judgment en- tered, and consequently after the delivery of the deed and before the judgment had, the grantor had no lien. In the intermediate time, it was in the power of M'Connel to make any disposition of the land he pleased, either by sale or by subject- ing the premises to the lien of other incumbrances. And this conveyance the vendor can only avoid by enter- 2 3 Watts, 98. 444 THE OPERATION OF COVENANTS FOR TITLE a mere assignment of the title acquired under a treasurer's deed, which it was held did not estop the grantor himself from afterwards claiming the land under a subsequently- acquired title. But in McCall v. Coover,^ the principle that an after-acquired title enured to a prior vendee, was acted upon entirely irrespective of any covenant of war- ranty, as it was held that the titles to donation land granted by the Commonwealth to soldiers of the Revolution, prior to its acquisition by the State, were confirmed by the sub- sequent purchase by the latter. In this case there was, of course, no warranty of the title, and if there had been, it could not have been enforced against the Commonwealth. And in a recent case,^ where a survey was made for the purpose of a partition, and the heirs conveyed according to the lines of that survey, and a reconveyance was made to one of them of his purpart, it was held that they were estopped ing liis judgment the same day the deed is delivered, or by taking a mortgage on the property sold, for security of the purchase-money. The counsel for the plaintiff in error relies on Chew y. Barnet, 11 Serg. & Rawle, 399 ; but that case merely decides the general principle that the pur- chaser of an equitable title takes it subject to all tne countervailing equi- ties to which it was subject in the hands of the person from whom he purchased. But here, by the con- veyance from Brown to M'Connel, M'Connel acquires a legal title to the premises, without the lien of any in- cumbrance whatever, whether legal or equitable, which, by operation of law, immediately passes to his grantee." In the subsequent case of Bellas u. M'Carty, 10 Watts, 26, it was said by the same learned Judge, that Chew V. Barnet " must be vie^yed with ref- erence to the case decided." In the previous case in New York, of Jack- son V. Bradford, 4 Wendell, 462, the facts were almost identical, and the decision different. An heir conveyed certain land with a covenant of non- claim. Afterwards the estate de- scended upon him, and was levied upon under a judgment against him, and sold, and the Court held that the sheriff's vendee took, to the ex- clusion of the prior grantee, and it escaped from the application of the doctrine of estoppel by holding, as has been recently done in Maine, (supra, p. 224, 414,) that no action would lie upon a covenant of non- claim, and hence there would be no estoppel. 1 4 Watts & Serg. 161. 2 Root V. Crock, 7 Barr, 380, per Burnside, J. BY WAY OF ESTOPPEL OR REBUTTER, 44<0 to deny the correctness of the boundaries, and the husband of one of the heirs, who had also been a party to the deed, having purchased adjoining land, part of which was included in the survey and deed, it was held that he was estopped from claiming so much as was included. It was argued on his behalf that there could be no estoppel without a war- ranty, but the Court said, " There is no principle in our law better or more plainly settled than that on which the Judge instructed the jury — that if a man sells and conveys land to which he has no right or title, and afterwards buys or acquires the title to the same land, he cannot claim it as agahist his grantee." In a recent case, it was decided that as between the grantor and grantee in a conveyance with general warranty of land bound by a judgment, the grantor was bound to discharge the judgment, and the title subsequently acquired by the grantor at a sheriff's sale un- der such judgment, enured to the benefit of the grantee or those claiming under him, but that if the grantee, before the sheriQ"'s sale, conveyed to a third person expressly subject to all incumhrances, his vendee was not placed in his position, and had no equitable right to demand a conveyance of the title subsequently acquired by the original vendor at the sheriff''s sale.-^ In Shaw v. Galbraith,^ there was a conveyance to a grantee without the addition of the word hews, but the covenant of warranty was made from the grantor and his heirs to the grantee and his heirs and assigns, and the Court held that although it was a technical rule that a war- ranty could not enlarge an estate,^ yet that it might operate by way of equitable rebutter to avoid circuity of action : " In this case, it matters but little whether the estoppel operates by the ordinary effect, whereby the parties are debarred 1 Skinner v. Starner, 12 Harris, 2 ^ Barr, 111. (24 Penn. State K.) 123. 3 See supra, note to p. 437. 38 U6 THE OPERATION OF COVENANTS FOR TITLE from denying the passage of the estate, or as a transfer of the estate. On this point there is much learning in the hooks somewhat difficult to understand, hut which we are relieved from examining, as, take it as you may, if an estoppel, it is an answer to the action of the grantor or those claiming under him, even although the fee may not have heen transferred so as to enable the grantor to sup- port an action against a stranger." The principle of the cases which depend upon the presence of a warranty ,•* seems then to have heen approved, and it was added, " Without then undertaking to determine whether the fee simple is transferred, we are of opinion that the grantor, and the plaintiff who claims under him, are estopped from denying the title." ^ A contrary decision was, however, made in a 1 McCracken v. Wright, 14 Johns. 194; Jackson v. Bradford, 4 Wend. (N. Y.) 622 ; Somes v. Skinner, 3 Pickering, (Mass.) 61 ; Mc Williams V. Nisly, 2 Serg. & Rawle, (Pa.) 516. The Court then said : " Where there is a warranty in the deed, the war- ranty will rebut and bar the grantor and his heirs of a future right. This is not, as is there said, because the title ever passes by such grant, but the principle of avoiding circuity of action interposes, and stops the grant- or from impeaching a title to the soundness of which he must answer on his warranty." 2 " It must be admitted," said the Court, in the recent case in Mis- souri, of Bogy V. Shoab, 13 Missouri, 378, as introductory to the remarks upon the local statute on this sub- ject (see supra, p. 411), "that a very great diversity of opinion has existed, both in adjudged cases, and in the treatises of law writers as to what description of conveyance will pass an after-acquired title. Nor are they much better agreed as to the principles upon which such a trans- mission of title is effected, in cases where all acknowledge the subse- quently acquired title passes. By some it is contended, that no con- veyance except the common law feoffments, or fine and recovery, could have the effect of passing a legal estate which the grantor had not at the time, and that neither a general warranty nor any mere estoppel could affect the legal title. On the other hand, it is maintained by the decisions in New York and Pennsylvania, and in all the New England States, that a conveyance under the statute of uses, a bar- gain and sale, if accompanied with a covenant of general warranty, will operate upon a title which the bar- gainor did not have at the time of the conveyance. The new title is supposed to enure by way of estop- pel, to the use of the grantee and his assigns. Although nothing passes by the deed, as the grantor had nothing, BY WAY OF ESTOPPEL OR REBUTTER. U7 very recent case in North Carolina, upon precisely similar facts, where it was considered that the objection that the heirs of the grantor were rebutted from claiming- the land by the warranty of their ancestor, was met by the decisive answer that the warranty ceased when the estate to which it was annexed determined.^ As respects the law in England upon this subject at the present day, it was said by Lord St. Leonards, while Chancellor of Ireland,^ " The cases seem to me to establish this, — that if a man sells an estate (and the principle is the same, if he grants his lands in mortgage,^ or creates an annuity issuing out of them), and the title is afterwards de- feated, but subsequently he acquires the same lands under another title, there is an equity arising out of the contract to fasten it upon the new title," * And in his treatise on yet as the grantee may recover the value of the land upon his covenants, he is estopped from using his subse- quently acquired title. At the same time it is conceded, that where the covenant is restricted to a mere war- ranty of the title granted or released, no such consequence follows. Where the grantor does not undertake to convey an indefeasible estate, but only such title as he has, and agrees to warrant it only against all claims derived from himself, he is under- stood to refer to existing claims and incumbrances, and not to any title he might afterwards derive from a stranger." 1 Register ». Rowell, 3 Jones' Law, (N. C.) 312, citing Seymor's case, 10 Coke, 96. Rector v. Waugh, 1 7 Mis- souri, 27, was decided upon the same ground. In Patterson v. Moore, 15 Arkansas, 222, where also the grant omitted the word heirs, the grantor covenanted to warrant and defend from himself, his heirs, executors and assigns forever. It was contended, supra, on the authority of Shaw v. Gal- braith, that the deed operated to pass the fee by way of estoppel, but the Court said that in that case "the spe- cial clause of warranty was from the grantor and his heirs, to the grantee, his heirs and Eissigns. Here, whether from ignorance or design, the clause of warranty is only against the grant- or and his heirs, and that being in- consistent 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." 2 Jones V. Kearney, 1 Drury & Warren, 159. 3 See accord. Pierce v. Emery, 32 N. Hamp. 484. * The case of Fausset v. Carpenter, in the House of Lords, 2 Dow & Clark, 232, S. C. 5 Bligh's New Rep. 75, should not be here passed by without 448 THE OPERATION OF COVENANTS FOR TITLE Vendors, it is said, " If a man sell an estate to which he has no title, and, after the conveyance, acquire the title, he notice. The report is thus abridged in Lord St. Leonards' treatise " On the Law of Property as administered in the House of Lords," and as much reliance iras placed upon the form of the covenants for title, it will not bear a more succinct statement. " The estate in question had vested in three daughters in fee, as co- heiresses : Catharine, Anna Maria, and Elinor. Catharine, on her first marriage, conveyed her third to two trustees in fee, of whom Henry Pal- mer was one, for her husband for life, then for herself for life, and then for the issue of the marriage. There were several children of this marriage, and Catharine married a second husband. Anna Maria mar- ried, and made no settlement of her one third ; and Elinor married Hen- ry Palmer (the trustee under Catha- rine's settlement), and she made no settlement of her one third, and afterwards died, leaving her hus- band and one son surviving her. Pausset contracted to buy the es- tate for £4,000, and was ignorant of Catharine's settlement. The real interests of the seller stood thus : Catharine's one third was vested in fee in Plenry Palmer and the other trustees, in trust for Catharine for life, and her husband was of course interested in her life estate in his marital right. Anna Maria's one third was vested in fee in her and her husband, and Elinor's one third was vested in her husband as tenant by the courtesy, and the fee was vest- ed in the son, subject to the father's estate. Catharine and her second husband, and Anna Maria and her husband, levied fines of their several one thirds ; and by lease and release, they and Henry Palmer, in consid- eration of £4,000 paid by Fausset, viz. £1,333 6s. Sd. to Catharine and her husband, £1,333 6s. 8d. to Anna Maria and her husband, and £1,333 6s. 8d. to Henry Palmer, did, and each of them did, grant and release to Fausset, in fee, all the lands and estate in question, and all the estate, right, title, interest, use, trust, inher- itance, property, claim and demand whatsoever, either at law or in equi- ty, of them the grantors and each and every of them, of, in and to the said lands, &c., and every part and parcel thereof, together with all docu- ments of title relating to the same. And the husband of Anna Maria, for himself and Anna Maria his wife, and for his and her heirs, executors and administrators, and the husband of Cathai-ine for himself and Catha- rine his wife, and for his and her heirs, executors and administrators, and Henry Palmer for himself, his heirs, executors and administrators, and for the heirs of Elinor his wife, deceased, covenanted with Fausset and his heirs and assigns, that not- withstanding any act, &c., by them or by the father of the three ladies, they, the two husbands and wives, and Henry Palmer, or some or one of them, were or was seized in fee of the lauds 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 BY WAY OF ESTOPPEL OR REBUTTER. U9 will be compelled to convey it to the purchaser. But it seems to have been considered, that this is a personal equity- Henry Palmer or any of them, their or any of their heirs and assigns, or any other person or persons lawfully claiming or to claim any estate, right, title, trust or interest, either at law or in equity, of, in, to or out of the lands conveyed or any part thereof, from, by or under or in trust for them or any of them, or Elinor Pal- mer, or the father, their or any of their heirs or assigns ; and that free from, or otherwise by the two hus- bands and wives, and Henry Pal- mer, their heirs or assigns, indem- nified against all grants, estates, &c. &c. (in very full words), made or to be made by them or by any of them, their heirs or assigns, or by any per- sons lawfully claiming or to obtain any estate, &c., at law or in equity in the lands or any part thereof, from, or by, or under, or in trust for them or any of them ; and for fur- ther assurance by the two husbands and wives, and Henry Palmer, and the issue of Henry by Elinor his late wife, and her heirs, and all persons claiming any estate, right, title, or interest, either at law or in equity, in the lands or any part thereof, from, by or under, or in trust for them or any of them. And it was declared that the fines should enure to Eausset in fee. Upon an eject- ment by the surviving trustee (Hen- ry Palmer having died first) under Catharine's settlement, after her death, it was insisted that the deed to Eausset operated as a conveyance by Palmer of one moiety of the fee in Catharine's one third. The Judge at nisi prius in Ireland held other- 38 * wise, and upon a bill of exceptions his opinion was supported by the Court of King's Bench in Ireland, and their judgment was affirmed by the House of Lords, without taking time to consider. The Law Lords who advised the House were Lord Wynford and Lord Tenterden, C. J. Lord Wynford said, as to the con- struction of the deed, he took it on the principle stated by Sir E. Sug- den, the counsel for the appellant. He stated that the purchaser takes what the parties conveying assume to sell, and buys that and no more. [?] Then look at the deed, and see what is the scope and effect of it. Palmer and the other parties interested agree to sell, and they were to collect from the whole of the instrument taken together, whether it was the inten- tion of Palmer to convey only that estate in the premises which belonged to him in right of his wife, and which he was entitled to convey,*or whether it was his intention to convey also the legal estate in which he had no ben- eficial interest, but which he had merely as a trustee. The only dif- ficulty in this case arose from the double character held by Palmer with respect to these estates, and then in what he conveyed. Mr. Ab- bot put the principle in the strongest possible way, that in judging of the design and object of a deed, you will not presume that a party executing * It does not appear that Henry Palmer had acquired the fee m his wife's one third, and yet he assumed to convey it as a portion of the fee in the entire estate. See the covenant for further assurance. 450 THE OPERATION OF COVENANTS FOR TITLE attaching on the conscience of the party, and not descending with the land ; and, therefore, that if the vendor do not in the deed meant to do and did what he was wrong in doing, when a con- struction may be put on the instru- ment perfectly consistent with his doing only what he has a right to do. He had a right to convey his own estate, but ho did wrong if he con- veyed more. The parties to the deed were the two married daughters and their husbands, and Henry Palmer, who, as his wife was dead, was prob- ably tenant by the courtesy, and they conveyed the estate to Fausset in consideration of £4,000. If the in- strument had stopped there, one might say that each meant to convey the en- tirety ; but mark what follows; in 'three equal proportions of £1,333 •6s. 8d., stated to be severally paid to each of the said grantors respec- tively. Each, therefore, takes his proportion of the price, and the fair presumption is, that each sells his proportion only. By the covenants for title and quiet enjoyment, Pal- ■mer appears to be dealing only with the interest which he had in right of ■his wife, and covenants for himself and for her heirs. Sir E. Sugden ■said that the covenants were strong in his favor, since they went to the •entirety of the estate. 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 •of the instrument together, and then •it appeared that each covenants for what he sells, and then the whole three covenant for the entirety of their in- terests. The plain meaning therefore was, that Palmer does not here con- vey the estate which he had as a trustee, and which he would have done wrong in conveying ; but that he conveys only the estate which belonged to him in right of his wife, and which he had a right to convey. Lord Tenterden replied upon pre- cisely the same grounds. The ques- tion was, whether the deed operated as a conveyance by Palmer only of that in which he was beneficially in- terested, or extended to that estate of which he was a trustee. The question here was not as to whether a person having two estates, both of which he might innocently convey, but as to a person having two estates, one of which he might innocently and properly convey, and the other of which he could not convey with- out fraud and a breach of trust. He (Lord Tenterden) was satisfied that all the parties convej-ing meant to convey only what belonged to them- selves, and that Palmer meant to convey only that part which be- longed to him in right of his wife. He then stated how the considera- tion was paid. That, he said, stand- ing alone, would intimate that the parties meant to convey only what properly belonged to them, and that supposition was confirmed by the covenants. The form of the cove- nants showed that Palmer looked only at the right of his wife, and to what it was lawful for him to con- vey, and the Court was not bound to extend the scope of the instrument further, where that was sufficient to satisfy its meaning, and so the judgment was affirmed with £lOO costs." BY WAY OF ESTOPPEL OR REBUTTER. 451 his lifetime confirm the title, and the estate descend to the heir-at-law, he will not he bound by his ancestor's con- Lord St. Leonards, in his treatise on Vendors (3 Vend. 428,) has con- sidered this case to be " a dangerous precedent," and remarks of it in his " Law of Property," above referred to, "I do not remember any decision, which was so generally condemned as this in Westminster Hall. The rights of the purchaser were entirely disregarded. He was ignorant of the settlement by Catharine ; and her eldest son, one of the cestuis que trust under it, witnessed the execu- tion of the conveyance to the pur- chaser by his mother. All the par- ties to that conveyance conveyed the whole estate to the purchaser in fee. How, in the face of that conveyance, could any of those parties claim any interest as still remaining vested in them, although they were capable of conveying them ? Palmer was, no doubt, a trustee of Catharine's third ; but he did not disclose that circum- stance to the purchaser. How, then, could he protect himself in that char- acter by confining the operation of the conveyance to his own wife's third ? He might have so confined it if he had chosen, but, no doubt, such a desire would have raised sus- picion in the purchaser's mind, and he would not have completed the purchase. ... If Palmer's convey- ance operated to convey Catharine's life interest, that is, the legal estate for her life, of course the fee passed, for the fee was expressed, and was intended to be conveyed. The deed was cut down in its operation at law, not from anything which appeared on the face of it, but from the real state of the title, proved by extrinsic evidence, but which was not commu- nicated to the purchaser. If the de- cision is capable of being supported, it must be considered as a case in which three parties, claiming the fee in thirds, conveyed the whole estate to a purchaser, and the deed was construed to convey only one third by each ; so that any estate which any of them had in the other two thirds still remained in them. The circumstance that one of the sellers had an estate as trustee in another third, for another of the sellers and others, never could be made a ground for controlling the legal operation of the conveyance, where the trustee did not disclose the trust, but joined with the cestuis que trust, having a limited estate, and allowed them to convey as if the fee were vested in them. The question is not simply what the sellers intended to convey, we must consider also what the pur- chaser supposed they had conveyed, and what the words imported. Who- ever conveys to a purchaser without restraining the operation of his con- veyance, should be deemed to convey in every character which enabled him to give effect to his deed. This is a rule which has always been acted upon. The Lords relied upon two grounds : 1. That the consideration was paid in thirds — but surely that was entitled to no weight ; the pay- ment was a correct one, but the par- ties conveyed the whole, and no pru- dent purchaser would be content with a conveyance in a more limited form ; if such had been the intention, each 453 THE OPERATION OF COVENANTS FOR TITLE tract. This opinion, however, deserves great considera- tion." Morse v. Faulkner,^ is the authority cited, in which, however. Chief Baron Eyre spoke by no means positively as to this doctrine of mere personal equity, and expressly said, " I shall not determine the case upon this ground without further consideration." ^ partj would have confined his con- veyance to the one third to which he claimed to be entitled. 2. That the intention was shown by the covenants — whereas, on the contrary, although each confined himself to the acts of the persons claiming his own third, yet each covenanted for the title to the whole. And even if the cove- nants had been confined by each party to his own third, for • which there is an established form often used, yet that would have formed no ground for cutting down the convey- ance by each of the whole. Nothing can be more consistent than, in such a case, taking a conveyance from all parties of the whole estate, and yet confining the covenants of every seller to the share which he claims, and the acts of the parties under whom he claims his share." Accord- ingly, while Chancellor of Ireland, Lord St. Leonards observed, in the case of Drew v. Lord Norbury, 3 Jones & La Touche, 284, " that he took it to be clear that where a per- son having several estates and inter- ests in lands, joins in conveying all his estate and interest in them to a purchaser, every estate or interest vested in him will pass by that con- veyance, although not vested in him in the character in which he became a party to the conveyance. It is true that in Fausset v. Carpenter, the House of Lords took a different view. At the time when that cause was de- cided, it was thought to be impossible to maintain the decision ; and it was a subject of consideration among the profession, whether it would not be advisable to bring in a short act of Parliament to revise it. That case could not operate to weaken the rule of law. Nothing could be more mis- chievous or contrary to law than to hold that where a party professes to convey all his estate and interest in particular lands, the operation of his conveyance should be limited to the estate which was vested in him in the character in which he purported to join in the conveyance." 1 1 Anstruther, 11. 2 In Doe d. Hutchinson u. Prest- widge, 4 Maule & Selw. 178, one of three tenants in common in tail re- leased to the others with a covenant of wai-ranty. By the death of one of the latter, the releasor became his heir, and conveyed his interest in the premises to the plaintiff, who brought suit for the same against the children of the other tenant in common, who had also died, for whom it was contend- ed that whether this warranty passed the right or might be used only by way of rebutter, was immaterial to the defendants ; in either case the plain- tiffs were not entitled, for they could not stand in a better position than the releasor himself, " and the Court having intimated an opinion that the BY WAY OF ESTOPPEL OR REBUTTER. 453 On the other hand, Vice-Chancellor Leach went to the opposite extreme in Bensley v. Burden,-' and treated an es- toppel, caused by a deed of lease and release, as possessing the high efficacy of actually transferring the estate. But the authority of this case was soon after indirectly, if not positively, denied by the Court of King's Bench, in Right V. Bucknell ; ^ and Lord St. Leonards, who had himself, in Bensley v. Burdou, argued in favor of the estoppel, after- wards said, from the bench,^ that it was now clearly settled lessors of the plaintiiF were barred by the release in respect of so much of the releasor's interest as the plain- tiffs took under the release," the defendant's counsel " made another point, viz., that whatever interest passed by the release, passed to the relezisee as joint tenants and not as tenants in common," but this -was subsequently abandoned, "wherefore judgment passed for the defendants." 1 2 Sim. & Stu. 524 ; see this case cited supra, p. 191. 2 2 Barn. & Adolph. 273. See supra, p. 191. 3 Lloyd V. Lloyd, 4 Drury & War- ren, 369 ; 2 Connor & Lawson, 598. The report in the first of these books is the more full. The Chancellor is there reported to have said : " This conveyance, being an innocent con- veyance by lease and release, could not operate by way of estoppel. It is true that Sir John Leach, in Bens- ley V. Burden, 2 Sim. & Stu. 519, did hold the contrary, and decided that an estoppel could be worked by lease and release. The point was subse- quently ruled the other way in the Court of King's Bench, in Right v. Bucknell, 2 Barn. & Adolph. 278, and it is now clearly settled, that a conveyance of this nature has no eifect upon the legal estate, which the party subsequently acquires." In 2 Connor & Lawson, the report is : " Speaking from recollection, I think Sir John Leach decided in Bensley V. Burdon, though I pressed him very much upon the point, that a lease and release would operate by estop- pel, but the Court of King's Bench afterwards held otherwise, and the current of authorities has established the point." The Chancellor's recol- lection, however, was not exactly ac- curate as to his own position in the case of Bensley v. Burdon, as he seems to have thought that Sir John Leach had held in favor of the es- toppel, notwithstanding the pressing remarks in opposition to it. But, in fact. Lord St. Leonards had argued in favor of the estoppel, and, it would seem, in the first argument, not very earnestly, as the report of it is, " To the extent of securing the annuity, the deeds of 1803 operate by way of estoppel. But whatever be their op- eration at law, it is quite clear, that if a person assumes to sell an estate in which he has no interest, and he afterwards acquires an interest, this Court would, upon a bill being filed against him, compel him to execute a conveyance. And it is equally 454 THE OPERATION OF COVENANTS FOR TITLE that a conveyance of this nature has no effect upon the legal estate which the party subsequently acquires.^ But, it may be asked, if an estoppel is not created by a deed taking effect under the statute of uses, and if a war- ranty in that deed does not of itself create an estoppel, how is an estoppel created, and what is the true principle that appears to be properly deducible frotn the many authorities cited 1 The answer to this question may perhaps be, that the principle of the cases seems to be referable to a familiar rule in equity, that if a man contracts for the sale of an es- tate, which he has not at the time such contract is entered into, and he afterwards acquires such an interest as will en- clear, that a purchaser from him with notice would stand in the same situa- tion as the vendor ; " and the Vice- Chancellor, in delivering his opinion, said : " It is said that estoppel can- not be worked by lease and release, and, therefore, it was necessary to come into equity, and this point was treated at the bar as too clear for ar- gument. My impression was other- wise, and I requested that the case might be argued a second time upon that point alone ; and, after hearing that second argument, I am confirmed in my opinion, that estoppel is as well worked by an indenture of release as by any other indenture ; " but, as has been stated in the text, this has since been overruled. In Cornish on Purchase-Deeds, p. 7, it is said, " The true proposition is that a release does not estop as a release, not that the instrument by which it is made may not estop if sufficiently solemn. It will not, like a feoffment, work an estop- pel by matter in pais, but it undoubt- edly may produce that effect by matter in writing; and therefore as a release by enlargement must be by deed, and always is by indenture, a lease and release will estop when it cannot operate as a conveyance. The writer in his essay on Uses, 179, citing Co. Litt. 352, advanced this opinion, in the face however of the general opinion of the profession, which he conceived to be inaccurate from not discriminating between an estoppel produced by the nature of the assurance, and an estoppel eiFect- ed by the nature of the instrument by which that assurance is made. He conceives therefore that the late decision of the Vice-Chancellor, which is built on this principle, is in perfect unison with the established distinc- tions of our ancient law." The dis- tinction thus taken is, however, very refined. 1 In England, at the present day, since fines have been abolished, and feoffments shorn of their high eflSca- cy (Statute of 8 & 9 Vict. c. 106,) it may be said that the only cases in which after-acquired titles actually pass by a former conveyance, so as to exclude a subsequent purchaser, are those of leases. BY WAY OF ESTOPPEL OR REBUTTER, 455 able him to make good his contract, equity will compel him to perform it and make good the title, and that the presence of a warranty in a deed purporting to convey an estate, has, it would seem, upon strict principle, no greater effect than an averment that the contract between the vendor and pur- chaser is, that that identical estate shall be actually trans- ferred from the former to the latter ; and such an effect can be produced by other covenants than that of warranty,^ and by other parts of the deed than the covenants. In a recent case in the Supreme Court of the United States,^ reported since these remarks were first written, the whole of this doctrine was carefully considered, and put upon the ground alike supported by reason and authority.' " The general principle is admitted," said Mr. Justice Nel- son, who delivered the opinion, " that a grantor conveying by deed of bargain and sale, by way of release, or quitclaim of all his right and title to a tract of land, if made in good faith and without any fraudulent representations, is not responsible for the goodness of the title beyond the cove- nants in his deed. A deed of this character purports to convey, and is understood to convey, nothing more than the interest or estate of which the grantor is seized or possessed at the time ; and does not operate to pass or bind an inter- est not then in existence. The bargain between the parties proceeds upon this view ; and the consideration is regulated in conformity with it. If otherwise, and the vendee has contracted for a particular estate, or for an estate in fee, he must take the precaution to secure himself by the proper covenants of title. But this principle is applicable to a deed of bargain and sale by release or quitclaim, in the strict and proper sense of that species of conveyance. And, there- fore, if the deed bears on its face evidence that the grantors I WigMman v. Keynolds, 24 Mis- 2 Yan Rensselaer v. Kearney, 11 sissippi, 680. Howard, 297. 456 THE OPERATION OF COVENANTS FOR TITLE intended to convey, and the grantee expected to become in- vested with an estate of a particular description or quahty, and that the bargain had proceeded upon that footing be- tween the parties, then, akhough it may not contain any covenants of title in the technical sense of the term, still the legal operation and effect of the instrument wiW be as bind- ing upon the grantor and those claiming under him, in respect to the estate thus described, as if a formal covenant to that effect had been inserted ; at least so far as to estop them from ever afterwards denying that he was seized of the particular estate at the time of the conveyance."^ 1 After referring to the authorities of Doe d. Marchant v. Errington, 8 Scott, 210 ; Bowman v. Taylor, 2 Ad. & Elhs, 278 ; Fairbanks v. William- son, 7 Greenleaf, (Me.) 96 ; and Eight V. Bueknell, 2 Barn. & Adolph. 281 (supra, p. 191), the opinion thus continues : " The principle deducible from these authorities seems to be, that -whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seized or possessed of a particu- lar estate in the premises, and which estate the deed purports to convey, or, what is the same thing, if the seizin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary im- plication, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seized and possessed at the time he made the conveyance. The estoppel works upon the estate, and binds an after-acquired title as be- tween parties and privies. The rea- son is, that the estate thus affirmed to be in the party at the time of the conveyance must necessarily have in- fluenced the grantee in making the purchase, and hence the grantor and those in privity with him, in good faith and fair deahng, should be for- ever thereafter precluded from gain- saying it. The doctrine is founded, when properly applied, upon the highest principles of morality, and recommends itself to the common sense and justice of every one. And although it debars the truth in the particular case, and therefore is not unfrequently characterized as odious, and not to be favored, still it should be remembered that it debare only in the case where its utterance would convict the party of a previous false- hood, would be the denial of a pre- vious affirmation upon the faith of which persons had dealt, and pledged their credit or expended their money. It is a doctrine, therefore, when prop- erly understood and applied, that concludes the truth in order to pre- vent fraud and falsehood, and im- poses silence on a party only when in conscience and honesty he should not be allowed to speak." BY WAY OF ESTOPPEL OR REBUTTER. 457 But whatever may be the means by which the eifect is produced, it is submitted that the effect itself should not, at least upon strict principle, be that of an estoppel in its tech- nical meaning, for as has been well said,^ such a result " necessarily tends to give to a vendee who has been care- less enough to buy what the vendor has not got to sell, a preference over subsequent purchasers who have expended their money in good faith, and without being guilty of necr- ligence," and the inconsistency of the doctrine referred to with the recording acts in force on this side of the Atlantic has already been noticed.^ It sometimes happens that a purchaser, in giving to his vendor a niortgage for the purchase-money, is required to insert in it general covenants for the title, and it has been often urged that in the event of a failure of title or eviction of the mortgagor, he is estopped by these covenants from availing himself of any indemnity or relief to which he would otherwise be entitled by virtue of his vendor's cove- nants to himself. This doctrine is sought to be based upon the principle that " estoppels should be reciprocal,"^ but has An illustration of this doctrine is nants which he had given from show- found in the very recent case of Tern- ing that they were untrue, pie V. Partridge, 42 Maine, 56, where l Mr. Plare's note to Duchess of in an action on the case (in the nat\ire Kingston's case, 2 Smith's Leading of a writ of deceit,) the plaintiff Cases. proved that the defendant was her 2 Supra, p. 430. agent, and by false representation as ^ Jn the recent case of Cross v. to the value of the land, induced her Robinson, 21 Connect. 387, where to sell it to him at an under-value. the assignee of a mortgagee brought The defendant had subsequently re- ejectment on a satisfied mortgage, it sold the land at an advanced price was held that not only was the plain- with covenant of warranty, and offer- tiff entitled to recover because the ed to prove that the price he paid the payment was not made till " after plaintiff was a full one, by reason of the law-day," but that the mortgagor a prior incumbrance in the chain of was estopped by the covenants for her title ; but the Court held that the seizin and of warranty contained in defendant was estopped by the cove- the mortgage, from denying the title 39 458 THE OPERATION OF COVENANTS FOR TITLE no foundation whatever either in reason or authority.^ Although the question was left undecided in a late case in Massachusetts,^ yet, in one still more recent,^ it was held that the law of estoppel was inapplicable to such a case. The principle was stated with clearness in a case in New Hampshire,* where, in a suit brought by a mortgagor, upon covenants contained in a deed made to him on the same day by the mortgagee, Gilchrist, J.^ in delivering the opinion of the Court, said : " The plaintiff's covenant is a direct alle- gation that there was no incumbrance when he made his deed, but it is no adniission that there was no incumbrance when the defendant made his deed. How does the cove- nant estop him from showing that there was no incum- brance at the date of his own deed, in a suit against him on his covenant "? The defendant's deed must have preceded the plaintiif's deed. A warranty of title by the plaintiff does not prove that the defendant had title when he con- veyed, for the plaintiff might then, or immediately after, have purchased in an opposing title, or removed an incum- brance. The fact that the plaintiff had a title when he thus reconveyed, is perfectly consistent with the fact that the defendant had not a title when he conveyed to the plaintiff. Could it be said, if the defendants had mortgaged the land, and then conveyed to the plaintiff, who mortgaged to the defendant, and then the plaintiff had extinguished the first mortgage, that the plaintiff should not recover of the de- fendants the sum he had thus paid, because his mortgage contained a covenant against incumbrances \ True, he of his mortgagee. Care should per- estoppels were odious in law, but he haps be taken in the application of might have gone further and added this case in practice. that they were detestable." lln Lot V. Thomas, Pennington, 2 pitch r. Seymour, 9 Metcalf, 468. (N. J.) 300, the Court said: "If 3 Sumner u. Barnard, 12 Id. 461. this doctrine were true, Lord Coke ■* Haynes v. Stevens, 11 N. Hamp. was not only justified in saying that 32. BY WAY OF ESTOPPEL OR REBUTTER. 4*59 covenants against incumbrances, but it is against those of his own creation, and not such as the defendants may. have charged upon the land." So, in a recent case in Maine,^ one sold land with a general covenant of warranty, taking a mortgage for the purchase-money which contained a simi- lar covenant. The mortgage was subsequently assigned, and afterwards foreclosed. The mortgagee died insolvent, when his widow, who had not joined in the original convey- ance, recovered her dower, which was paid by the owner of the land, who then sued on the covenant in the mortgage. But the Court in giving judgment for the defendant, said that when both a deed and the mortgage for the purchase- money " contain covenants of warranty, the covenants are not considered to be mutually acted upon each by the other ; those in the mortgage do not estop the party claiming to recover upon those in the absolute deed.^ The grantor in the absolute deed had sold the land ; the mortgagee had pledged it only, for the security of the purchase-money. ' By the sale, the grantor received a consideration, and is bound by his covenants to indemnify the grantee for all defects in the title, and for incumbrances existing at the time of the conveyance.^ As between these parties, the purchaser really pledges nothing but the interest which he obtained under the deed to him, and is answerable to him for no im- perfection in the title existing before the conveyance. If the mortgage is redeemed, it has discharged its office as security, and ceases to be operative. If it is foreclosed, the title which passes by the absolute deed is restored to the grantor or those who claim under him. And the one hav- ing the mortgagee's right after foreclosure of the mortgage, cannot be allowed to recover damages for a breach of the 1 Smith V. Cannell, 32 Maine, 125. » Citing Hayues v. Stevens, UN. 2 Citing Brown v. Staples, 28 Hamp. 28. Maine, 497. 460 THE OPERATION OF COVENANTS FOR TITLE covenants therein made by the mortgagee, or existing at the time of his conveyance ; for the effect of such recovery would be, to obtain all that he parted with in the convey- ance, and the value of the incumbrance, which he is relieved from removing by the foreclosure. Such consequence would be unjust." And the law as thus stated is supported both by reason and authority.^ Where, however, in a recent case in Massachusetts, the mortgagor had given his mortgagee possession under the mortgage for a breach of its condition, becoming his tenant, and was evicted by an elder title, it was held that he was not entitled to sue upon the covenants in the deed to him- self while such a relation between the parties continued unchanged ; the eviction had not been of his possession, but of that of his grantor and mortgagee.^ The rule which, in this country, sanctions the admission of evidence to show that the consideration of a purchase 1 Hubbard I'. Norton, 10 Connect. 4 Leonard, 251. So, in Co. Litt. 390, 433 ; (but see and consider Cross v. it is said, "If a man make a feoffment Kobinson, 21 Connect. 387, cited su- in fee, with warranty to the feoffee pra, p. 457) ; Hardy r. Nelson, 27 his heirs and assigns, and tlie feoffee Maine, 528 ; Brown v. Staples, 28 re-enfeoffeth the feoffor and his wife, Id. 497 ; Sumner v. Bernard, 12 Met- or the feoffor and any other stranger, calf, (Mass.) 461 ; Hancock v. Carl- the warranty remaineth still; or if ton, 6 Gray, (Mass.) Gl ; Lot v. two make a feoffment with warranty Thomas, Pennington, (N. J.) 300 ; to one and his heirs and assigns, and Oeyer u. Girard, 22 Missouri, 120; the feoffee re-enfeoffeth one of the Connor v. Eddy, 25 Id. 72, where feoffors, the warranty doth also re- the text was cited, and it was said main." So, it was held in the case that " the law of estoppel has no ap- of Kellog v. Wood, 4 Paige, (N. Y.) plication in such cases." So, "if a 77, that a general warranty in a re- man makes a feoffment with warranty, conveyance made by a vendee to his who enfeoffs the first feoffor, upon vendor will extend only to incum- condition that that warranty remains, brances suffered by the former while and he shall vouch by reason of the he held the estate, first warranty." Bointon & Chester's 2 Gilman v. Haven, 11 Gushing, case, cited in Rolls & Osborn's case, (Mass.) 330. BY WAY OF ESTOPPEL OR REBUTTER. 461 was, in reality, greater or less than that expressed in the deed, has already been adverted to.-^ But in a recent case in New Jersey,^ the rule has been carried somewhat farther than merely to sanction the admission of evidence to increase or diminish the consideration as to amount. The plaintiff con- veyed land which he had previously mortgaged ; and hav- ing, after the sale, discharged the incumbrance, sued the purchaser for its amount, on the ground that by an agree- ment between them, the latter expressly agreed to pay off" the mortgage. It was urged for the defendant, that the plaintiff' was estopped by his covenant against incumbrances from proving the existence of the mortgage, or that the defendant undertook to pay it ; but the Court held (the Chancellor and thi:ee Justices dissenting), that in the first place the evidence offered was merely to show the nature and extent of the payment of the consideration, and there- fore came within the doctrine of the American authorities ; and secondly, that the law of estoppel could not apply, as it was said that the question was one merely collateral to the deed, the action not being founded directly upon it. So, in a very recent case in Massachusetts,^ where one having con- veyed land with a covenant against incumbrances, sued his purchaser in assumpsit for taxes in arrear prior to the date of the deed, on the ground that, by the terms of sale, the latter had agreed to pay them. The Court below rejected the evidence as inadmissible to contradict the covenant, but the judgment was reversed by the Supreme Court, which held that the tendency of the evidence was to prove either that there was no incumbrance on the estate conveyed at the time of the promise, or, if there were, that the incum- brance was not within the true meaning of the covenant, 1 Supra, p. 65 et seq. 3 Preble v. Baldwin, 6 Gushing, 2 Bolles V. Beach, 2 Zabriskie, (N. (Mass.) 549. J.) 680. 39* 4:62 THE OPERATION OF COVENANTS FOR TITLE as the defendant had previously become bound to pay the taxes. In neither case, therefore, did the evidence vary or contradict the terms of the covenant. If, however, it were not so, the objection would not be applicable to the present case, in which the question as to the construction and eiiect of the covenant was not raised. It was not, therefore, it was said, necessary for the Court to give a decided opinion upon the question whether in an action for the breach of the covenant, the evidence rejected in this case would be admis- sible or not.^ But the law was more strictly held in an early case in Massachusetts, of some apparent hardship.^ A testatrix sold land to one whom she afterwards appointed her exec- utor, covenanting that she was lawfully seized, had good right to convey, and that the premises were free from in- cumbrances. The purchaser being evicted after her death, credited himself, in the settlement of the estate, with ^1,000 as damages arising from a breach of these covenants, and in reply to proof that he had himself formerly conveyed the same premises to the testatrix, with similar covenants, and that the adverse title was paramount to his own originally, and was covered by the covenants he gave, offered to prove that when he originally purchased, it was merely as agent for the testatrix, — that the consideration was paid by her, — that he bought in pursuance of an agreement with her, and conveyed to her without receiving any consideration Avhatever. It was, however, held by the Court, that " to admit the evidence offered would be to permit him directly to contradict his deed, in that he declared himself to be the owner of the land, and to have lawful right to convey it, and his express and unequivocal covenants would be de- feated by verbal declarations. ... If the appellant suffers, 1 For tte cases upon this point, see 2 Eveleth i;. Crouch, 15 Mass. 307. supra, p. 128. BY WAY OF ESTOPPEL OR REBUTTER. 463 it is because he was incautious in the mode of conducting his business." So in a case in New York/ it was held that where one had conveyed in fee with a covenant of warranty, he was estopped from alleging that he had such an interest in the consideration-money as would raise a resulting trust in his favor. The preceding classes of cases have all turned upon the estoppel of the grantor. A few, however, may here be noticed respecting the estoppel of the purchaser, caused by his acceptance of the conveyance. In some early cases in New York, it was held that the acceptance of a grant was a conclusive admission of the title of the grantor, and therefore, that in an action of dower brought by the widow of the latter, the defendant was estopped from showing that the husband's' title was defective,^ and the same rule has, in some instances, been elsewhere applied.^ In Massachusetts, it was, however, said,* that " the gran tee may be permitted to show that his grantor was not seized, as is every day allowed in actions of covenant ; " and in England, in the case of Gaunt v. Wainman,^ it was held that the acceptance of a conveyance did not estop the grantee in an action of dower brought by his grantor's 1 Squire v. Harder, 1 Paige, (N. Bank, 28 Id. 259, where it was held Y.) 495. that where two grantors conveyed 2 Hitchcock V. Harrington, 6 John- land, with a covenant that they were son, 290; Collins v. Torry, 7 Id. 278; lawfully seized thereof and would de- Davis V. Darrow, 12 Wendell, (N. fend the same, the grantee was held Y.) 65 ; Bowne v. Potter, 1 7 Id. 1 G4 ; to be estopped, in an action of dower Sherwood v. Vandenburgh, 2 Hill, by the widow of one of them, from (N. Y.) 308. showing that the surviving grantor 3 Gayle v. Price, 5 Richardson's was seized of a greater proportion, Law K. (S. Car.) ,525 ; Hains v. and the deceased of a less one than Gardner, 1 Fairfield, (Me.) 383 ; an undivided moiety thereof. Hamblin v. Bank of Cumberland, 19 ■* Small v. Proctor, 15 Mass. 499. Maine, 69 ; Stimpson v. Thomastou 5 3 Bingham's N. C. 69. 4^64} THE OPERATION OF COVENANTS FOR TITLE widow, from showing that the premises were leasehold, instead of freehold, as described in the deed. In New York, moreover, very soon after the later of the decisions above referred to, their rule was followed in one case with reluctance, and solely on the ground of adherence to precedent.^ Soon after, it was held,^ that whatever might be the rule where possession had accompanied the deed, yet that where there was no such possession, there would be no estoppel. In the recent case, however, of Sparrow v. King- man,^ the whole doctrine was reconsidered on the grounds both of principle and authority, and the prior decisions over- ruled. The doctrine, as given by Coke,* that an estoppel was caused " by the acceptance of an estate," was referred, in its application, to the system of common-law assurances by feofi'ment, " which operated on the possession, and if cor- rectly pursued, always passed a freehold or fee simple to the feoS'ee. But in the case of a conveyance by grant, bar- gain and sale, or release, the very point is whether an estate existed in the grantor, and has passed, to be accepted." The same subject was soon after again elaborately reviewed in two cases,^ and the law held the same way, and very re- cently the case of Sparrow v. Kingman has been affirmed on error,® so that the law may now be considered as settled in New York, in accordance with principle, that the mere acceptance of a deed, whether with or without covenants, will not estop the grantor from controverting his grantor's title, either as against himself, or any one claiming under him.^ So in a very recent case in Massachusetts, it was » Sherwood v. Vandenburgh, 2 S. C. (N. Y.) 180 ; Finn u. Sleight, Hill, (N. Y.) 307. 8 Id. 406. 2 Osterhout v. Shoemaker, 3 Hill, ^ Kingman v. Sparrow, 12 Barb. (N. Y.) 518. S. C. 208. 3 1 Comstock, (N. Y.) 245. 7 Of course, however, such a rule * Co. Litt. 352 a. does not apply in the case where a 5 Averill V. Wilson, 4 Barbour's vendee obtains and keeps possession BY WAY OF ESTOPPEL OR REBUTTER. 465 held that the acceptance from the same grantor of a deed with covenant of general warranty of upland bounding on the sea-shore, and of a deed with limited warranty of the flats in front thereof, did not estop the grantee to claim title to the flats.^ It has, however, been held that where at the time of the conveyance, the purchaser has already vested in himself the valid title to the premises, he is estopped by his acceptance of the conveyance, from suing on the covenants it contains,^ for " they only extend to a title existing in a third person, which may defeat the estate granted by the covenantor, — they do not embrace a title already vested in him, and it never can be permitted in a person to accept a deed with covenants of seizin, and then turn round upon his grantor, and allege that his covenant is broken, for that, at the time he accepted the deed, he himself was seized of the premises." ^ The question how far a recital in a deed operates as an estoppel to the grantor, is one which has already been noticed.* In a late English case,^ it seems to have been doubted whether, when a deed contained a recital of title, the purchaser, upon being evicted, was not estopped from denying the accuracy of such recital in an action on his covenants for title ; such a doctrine, however, might operate with injustice, and in a subsequent case it was expressly of land under a contract of sale which l Porter v. Sullivan, 7 Gray, (Mass.) is not fulfilled ; as he ■will, of course, 441. under such circumstances, be estop- 2 Fitch v. Baldwin, 1 7 Johnson, ped from setting up a defect in the 166 ; Beebe v. Swartwout, 3 Gilman, title, either as a defence to an eject- (111.) 179 ; Furness v. Williams, 11 ment or in a suit for the purchase- Illinois, 229. money. This, however, obviously de- 3 Fitch v. Baldwin, supra. pends upon different principles. See * Supra, p. 463, note. the note to Duchess of Kingston's ^ Young v. Kaincock, 7 Com. case, 2 Smith's Leading Cases. Bench, 310. 466 THE OPERATION OF COVENANTS FOR TITLE, ETC. denied.^ So, in a recent case in Mississippi,^ it was held that a purchaser who had received a deed with covenant of warranty, "excepting only the widow's right of dower," was not estopped by such exception from controverting the fact of the marriage. 1 Stroughill 1;. Buck, 14 Queen's 2 Stevenson's Heirs v. McReary, Bench K. 781. 12 Smedes & Marsh. (Miss.) 57. IMPLIED COVENANTS, ETC. 467 CHAPTER X. IMPLIED COVENANTS, AND HOW COVENANTS FOR TITLE MAY BE LIMITED OR QUALIFIED. Long before the introduction of deeds, the feudal system demanded that the vassal should pay homage to his lord for the fief received at his hands, and that the lord should protect the vassal in the enjoyment of his fief, or give him another in case of its loss. The earliest implied covenant for title was, then, this warranty, which, being an incident of the peculiar tenure by which lands were then held, was implied from homage.^ When it became usual to authenticate the transfer of land by charters or deeds, a warranty was implied from the word of feoffment, dedi. The effect of the statute de higamis'^ and of the statute of quia emptores^ which have already been referred to,* was, however, to restrict the warranty thus implied, to the life of the donor, and to this effect is doubtless to be attributed the introduction of express war- ranties by the word ivarrantizo^ and which were termed 1 Supra, p. 2 ; Fitzh. Nat. Brev. whatsoever is implied ; they bearing 311; Gilbert's Tenures, 139. no sort of analogy to the original 2 4 Ed. I. c. 6. feudal donation. And therefore in 3 18 Ed. I. c. 1. such cases it became necessary to add * Supra, p. 2. an express clause of warranty, to 5 Indeed, says Blackstone ( 2 Comm. bind the grantor and his heirs, which 300), "In other forms of aUenation, is a kind of covenant real, and can gradually introduced since that stat- only be created by the verb war- ute (quia emptores), no warranty rantizo, or warrant." So in thij reign 468 IMPLIED COVENANTS, AND HOW COVENANTS warranties in deed, as distinguished from implied warranties, which were termed warranties in lavv.^ In many cases, however, in which privity of estate and tenure still subsisted, the warranty remained as at common law, and therefore, " if a man make a gift in tail, or a lease for life of land by deed, or without deed, reserving a rent, or of a rent service by deed, this is a warranty in law, and the donee or lessee being impleaded, shall vouch and recover in value." ^ The warranty implied from dedi, which extended to the acts of all persons claiming by title, and was not limited to those of the warrantor himself,^ was, however, unrestrained by any express warranty which the deed might contain.* of Elizabeth, it was said, " If a man make a feoffment in fee without war- ranty, tlie purchaser is entitled to the charters, etc., for as the feojfor is not hound to loarrant the land, he cannot be vouched ; " Co. Litt. 6 a ; Buck- hurst's case, 1 Coke, 1. So that in a conveyance of the freehold there was, at that time, no warranty im- plied as a consequence of tenure, the only implied warranty being derived from the word dedi, and that was limited to the life of the grantor. No warranty of a freehold was im- plied from the word concessi ; (Co. Litt. 384 a, and see Mr. Butler's note) ; Nokes's case, 4 Coke, 81, for although in the statute de higamis, " dedi et concessi are coupled to- gether, yet these words, ratione doni proprii, do appropriate the warranty to dedi only ; and agreeable to this exposition in our books, is the com- mon and constant opinion of learned men at this day," 2 Institutes, 276. And from the cases cited from the Year Books in Spencer's case, 5 Coke, 16, it is probable that but for that statute, which recognized and partially altered the common-law signification given to dedi, its power of raising a warranty would gradually have been lost. 1 " Because in judgment of law, they (that is the words from which warranty is implied), amount to a warranty without this verb war- rantizo." Co. Litt. 384 a. 2 Co. Litt. 384 b ; Fitzh. Nat. Brev. 134, and the burden of this warranty bound the heirs of the grantor and the assignees of the re- version, and its benefit enured to the assignees of the grantee. 3 Touchstone, 166, 167. 4 " For if a man make a feoffment in deed by dedi, and in the deed doth warrant the land against J. S. and his heirs, yet dedi is a general war- ranty during the life of the feoffor ; " Co. Litt. 384 ; and so says Coke, in Nokes's case, 4 Coke, 81, "I heard the Lord Dyer and the whole Court of C. P. (Hil. 14 Reg. Eliz.) resolve FOR TITLE MAY BE LIMITED OR QUALIFIED. 469 The remedy upon an implied warranty of a freehold was the same as that upon an express warranty, viz., by voucher and ivarraniia chartce} As, however, since the statutes de higamis and quia emptores^ the warranty implied by the word dedi endured no longer than for the life of the war- rantor, its burden did not, of course, descend upon his heir. The benefit of the warranty did, however, descend upon the heir of the warrantee if the latter died in the lifetime of his warrantor ; ^ and here there was a difference between the effect of the implied and that of the express warranty, since under the latter, neither its burden nor its benefit descended upon an heir unless expressly named.^ But although the benefit of the implied warranty descended to an heir, it that if a man make a feoffment by this word dedi, and with express war- ranty in the deed, he may use the one or the other at his election." So in Rant V. Cook, Cro.Eliz. 864 ; Trench- ard u. Hoskins, Littleton's Rep. 64 ; Johnson v. Procter, 1 Bulstrode, 3 ; Butler's note to Co. Litt. 3,84 a. It was nevertheless held in Kent v. Welch, 7 Johnson, 259, that the cove- nant implied by the word " give," was restrained by any express cove- nant for title which the deed might contain, and the decision was based upon Nokes's case, and a similar de- cision was made in Morris v. Harris, 9 Gill, (Md.) 27. Nokes's case, how- ever, decided that implied covenants in a leaseliold were, as will be pres- ently seen (■infra, p. 483), restrained by express covenants, but this doc- trine was never applied, at common law, to the implied warranty of a free- hold. In the late case of Dow ii. Lewis, 4 Gray, (Mass.) 473, it was said " That in a feoffment at common law the word dedi, 'give,' implied, in the absence of express covenants, 40 a warranty during the life of the grantor, is well settled ; Co. Litt. 384 a, 2 Inst. 275. But we know of no authority or sound reason for ex- tending this technical rule to an in- strument which purports to be and is but the execution of a power given by statute, and in which the grantor neither assumes to have nor to con- vey any estate, title or interest of his own,'' and hence it was held that no warranty could be implied from the use of this word in a deed from a sheriff or other ofKcer of the law. J Fitzh. Nat. Brev. 312; so, im- plied covenants in a leasehold are de- clared upon as if express covenants ; Grannis v. Clark, 8 Cowen, (N. Y.) 36 ; Barney v. Keith, 4 Wendell, (N. Y.) 5Q2. 2 Co. Litt. 384 a. 3 " If a man doth warrant land to another without this word (heirs), his heirs shall not vouch ; " Co. Litt. 384 b. This must not be thought to be in conflict with an equally true position, viz., " that though in the clause of warranty it be not men- 470 IMPLIED COVENANTS, AND HOW COVENANTS seems that it did not pass to an assignee ; for in Spencer's case,^ it was resolved that if a man make a feoffment by this word dedi, which implies a warranty, the assignee of the feoffee shall not vouch ; in other words, the implied war- ranty did not run with the land. By the common law, moreover, a warranty was implied in every exchange, "for," says Coke,^ "this word excam- hiuM doth imply a warranty," and such is the rule at the present day, unless where altered by statute.^ So also in the case of a partition, and in both these species of assur- ance there was not only an implied warranty, but a condi- tion, which, in case of the eviction of either party, gave a implied warranty, which engendered the right of entry in case of eviction (Shep. Touch. 290; Finch L. 27; Shep. Prac. Couns. 2). In the sec- ond instance, because the allotted lands became liable to the uses of the estates in respect of which they were allotted. The statute of 4 & 5 Will. IV.c.30,§§ 24,25, has, however, made some important alterations in the law in the latter case ; as that statute, by expressly changing the uses, takes away any right of eviction after an exchange made of lands in common fields under the powers of that act ; and by a still more recent enactment (8 & 9 Vict. c. 106), deeds of ex- change have no longer the effect of creating any warranty or right of re- entry, or implied covenant, by impli- cation. But this statute is only pro- spective, and will not affect assur- ances made previously. As to these, therefore, a double abstract will still be necessary.'' See also, passim, I Preston on Abstracts of Title, 303, and the comments upon that passage in AUnatt on Partition, 162. In Barton's MSS. Points of Conveyanc- ing (Barton's Conveyancing, London, tioned to whom, yet it shall be in- tended to the feoffee ; " Co. Litt. 383 b ; Herrin u. McEntyre, 1 Hawks, (N. Car.) 410. The benefit of the warranty enured to the person to whom the land was conveyed, but not to his heir unless the latter was named. 1 3 Coke, 16, 4th resolution. 2 Co. Litt. 384. 3 Grimes v. Redmond, 14 B. Mon- roe, (Ken.) 237. "In some instan- ces," says Mr. Hughes, in his recent Practice of Sales of Real Property, Vol. 1, p. 246, " an abstract relating only to the property intended to be conveyed, will not alone suffice ; as where lands have been taken in exchange (4 Rep. 121 ; Prest. Abst. 87), or allotted under inclosure acts, in both of which instances an abstract must not only be furnished of docu- ments of title relating to the estate sold or allotted, but of those also of the estates given in exchange, or of the original estates in respect of which the lands were allotted. The reason why a double title is required, in the first instance, is because the foundation of an exchange was an FOR TITLE MAY BE LIMITED OR QUALIFIED. 4/^1 right of re-entry upon the other portion.^ There was, how- ever, this difference between the warranty and the condition. When a coparcener took advantage of the condition, she defeated the partition in the whole, but when she vouched by force of the warranty in law, the partition was not de- feated in the whole, but she recovered recompense for the part that was lost.^ This condition and implied warranty only held, however, in privity of estate, and hence when one parcener aliened, and thus severed the connection between herself and her coparcener, the condition and warranty were lost.^ This, however, obviously did not deprive of these rights the par- cener who still retained her share, nor were the warranty and condition lost if the alienation were not total, and the privity thus wholly destroyed. By the statute of 31 Hen. VIII. c. 1, which gave to joint tenants and tenants in common the right of partition by writ, it was provided " that every of the said joint ten- ants or tenants in common and their heirs, after such parti- tion made, shall and may have aid of the other or of their heirs, to the intent to deraign the warranty paramount, and 1831), it is said (p. 107), "As the Miller on Partition, 245, passim; word exchange implies a mutual war- Feather v. Strohoecker, 3 Penn. 508. ranty, it would seem that the usual At common law, there was no war- covenants for title, quiet enjoyment, ranty implied when partition was and further assurance, might be safe- made between joint tenants and ten- ly omitted in a deed of exchange at ants in common, who before the stat- the common law, as those covenants, ute of Hen. VIII. were not compel- it is said, are implied by the word ex- lable to make partition. If a partition change; but express covenants are was made between them, it would be more extensive, and better to be re- voluntary, and the law would no more lied on than implied ones." Of imply a warranty than in a convey- course, under such covenants, the ance between any other vendor and common-law right of re-entry in case vendee ; Rector v. Waugh, 1 7 Mis- of eviction does not exist ; Bartramu. souri, 26 ; Picot v. Page, 26 Id. 420. Whichcote, 6 Simons, 92. 2 Bustard's case, st/^^ra. 1 Bustard's case, 4 Coke, 121 ; Co. ^ Allnatt on Partition, 161; see Litt. 174 a ; Allnatt on Partition, 158 ; Smith v. Sweringen, 26 Missouri, 567. 472 IMPLIED COVENANTS, AND HOW COVENANTS to recover for the rate as is used between coparceners after partition made by order of the common law." This statute, it will be perceived, gave the right to the warranty only ; and as between joint tenants and tenants in common, the condition neither exists by common law or by statute. Unless, however, the partition were by writ, it would seem that neither warranty nor condition were implied, and it was held in a very elaborate opinion in Pennsylvania, in the case of Weiser v. 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 contained, and not upon any warranty in law.^ In the subsequent case, however, of Patterson v. Lanning,^ tenants in common hy descent were put upon the same foot- ing as coparceners, and it was said that " seeing that they were created tenants in common by the act of the law, with- out any act whatever of their own, and that the same law also rendered them liable to make partition at the will or pleasure of any one or more of their co-tenants, it would seem therefore to be right, not only on the ground of anal- ogy, that a partition having been made between them by deed, the same warranty and condition should be considered as annexed by law thereto as if they had been parceners, but likewise on the ground of reason it would seem to be requisite that they, as also tenants in common, created in this State by our law of descents, should be regarded as coparceners, in order that their partition by deed of the ' 5 Watts, 279. 3 10 Watts, 135 ; and see Stro- 2 So in Morris v. Harris, 9 Gill, hecker v. Hansel, 5 Penn. Law Jour. (Md.) 26, it was considered that in 327; Seaton !>. Barry, 4 Watts & partition by deed between copar- Serg;. 184; Allen v. Gault, 3 Casey, ceners, the warranty implied by law (27 Penn. State R.) 475. was superseded by the express cove- nants in the deed. FOR TITLE MAY BE LIMITED OR QUALIFIED. 473 lands held in common by them shall not have the effect of destroying- any previous warranty made, securing the lands to their ancestor, as might, perhaps, be the case, were they to be considered in the light of tenants in common created by purchase." As respects the practical effect at the present day of a warranty implied from a partition, it was recently held in Tennessee, where the subject was elaborately examined in a case where one tenant in common filed a bill for contribution and reimbursement against his co-tenant and their alienees, that a bill in equity was the proper and most convenient remedy ; ^ and in Weiser v. Weiser,'"' it was thought to be at least doubtful if a personal action of covenant could be maintained upon a breach of the implied warranty. ^ Sawyer v. Cator, 8 Humphreys, (Tenn.) 256, 287. "The right of entry does not exist, because there is no implied condition given by the statute, and because the right to make actual entry upon unoccupied land is not congenial with our mode of doing business, and has never been in force and use in this State. The implied covenant given by the statute cannot be vouched upon, because that mode of proceeding has never been used in this State, and is even now obso- lete in England. We have been able to find no precedent for an action of covenant upon such implied war- ranty. It then necessarily follows, that such relief must be given by bill in a court of chancery, or it must be altogether denied, a thing that justice and equity will not permit. It seems to us, that a court of chan- cery is peculiarly adapted to give the relief, which is, upon the princi- ple of contribution, a subject over which such courts have so long had almost exclusive jurisdiction. The 40* account can be better taken, the value of the land better ascertained, and the loss more equally distributed between the parties ; and, moreover, the court of chancery is one of the forums for making the partition ; and surely no court can better rectify the mistake of a partition than that which has decreed it. We, therefore, think the remedy in a court of chancery, either by setting aside the partition when improperly made, and it can be done without injustice to others, or by contribution, when it is most proper. In this case contribution is asked, and it seems to us to be the most practicable and just mode of compensating the injured parties, and it seems to us that they are en- titled to this against the co-tenants, and their assignees, because the par- tition is made, not by deed, but under the statute, and because the com- plainants have lost a portion of land allotted them by paramount title." 2 5 Watts, (Pa.) 279. 474i IMPLIED COVENANTS, AND HOW COVENANTS It has, however, been suggested by very distinguished legal authority, that in the creation of a freehold there were other words besides those already mentioned, which implied a warranty. Lord Hardwicke is reported to have said : ^ " When a man has granted and conveyed, be the right real or pretended, the very words grant and convey, iii^pty a warranty and a covenant for quiet enjoyment ; " and, some years after, the same distinguished Judge again remarked : " It is said the word grant of itself imports a covenant ; which it does at law, but that is where there is no particu- lar covenant, which there is here ; " ^ and Lord Eldon, moreover, when Chief Justice of the Common Pleas, ob- served in the case of Browning v. Wright : " Now these words granted, bargained, sold, enfeoffed and confirmed cer- tainly import a covenant in law, the effect and meaning of which would be affected by the subsequent words of the indenture." ^ 1 JMann v. Ward, 2 Atkyns, 228. 2 Clarke u. Samson, 1 Ves. Sen. 100. 3 2 Bos. & Pull. 13. BuUer, J., added : " According to the ancient mode of conveyance, deeds were con- fined to a very narrow compass. The words grant and enfeoff amount to a general warranty in law, and have the same force and etTect. The cov- enants, therefore, which have been introduced in more modern times, are intended for the protection of the party conveying, and are introduced for the purpose of qualifying the gen- eral warranty which the old common law implied ; " and this, he added, has been settled since Nokes's case. Of these e.xpressions, it should be observed, all were dicla — none of them were essential to the case before the Court, and no authority whatever was cited in support of them, except by Mr. Justice Buller. But Nokes's case was not a conveyance of a free- bold, but " a demise of a term ; " and when it is there said, that '■ for this covenant in law upon these words, demise, grant, &c., the assignee shall have a writ of covenant," this is ap- plied only to the case of a lease. The question whether the words grant and en/eo^ created either a covenant or a warranty in the case of a freehold, was presented in Brown v. Haywood, 3 Keble, 617, S. C. 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- ceasi or demisi), in case of a freehold of inheritance, does not import any warranty." See also Yiner's Abr. Covenant, C. 19. Mr. Evans, in a note to Stat. 4 Ed. I. (1 Coll. of Statutes, 192), observes, " that it is FOR TITLE MAY BE LIMITED OR QUALIFIED. 475 It should, however, be remarked that none of these ex- pressions were necessary to the decision of the case before the Court. In the year ISO^, however, tlie question was directly presented in New York, in the case of Frost v. Raymond,^ where it was examined by Kent, Ch. J., with his usual research, and explained with his usual clearness, and it was conclusively shown that the words grant, har- gain, sell, alien and confirm imply no warranty whatever by the common law in the creation of a freehold, a war- ranty being implied only from the word do or dedi. After referring to the warranty implied by the word grant in case of a leasehold, the learned Chief Justice remarks : " We are not able to assign a very solid reason for this distinc- tion between the force and effect of the words ' give ' and 'grant.' It arose from artificial reasons derived from the feudal law. The distinction is now become merely techni- cal, but it is sufficient that it clearly exists, and we are cer- tainly not at liberty to confound the words, or change their established operation. The- other words in the deed, ' bar- gain, sell, alien and confirm,' have never been considered as implying any covenant whatever in any case.^ The only 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 view of the law, consistent assent has been singular that a Judge of such emi- Browning v. Wright was, indeed, di- nence as Mr. J. BuUer should have rectly approved by Huston, J., in stated that the words grant and en- Christine v. Whitehill, 16 Serg. & /eryf amount to a general warranty Kawle, (Pa.) Ill, but the case was in law, and have the same force and decided by a bare majority of the efl'ect, and should refer to Nolces's Court, Gibson, C. J., dissenting, and case as settling that point, as Nokes's was overruled when it came again case relates to the demise of a term, before the Supreme Court (Whitehill in which the words demise and grant v. Gotwalt, 3 Penn. R. 326), in an operate as a covenant." able opinion delivered by Kennedy, 1 2 Caines, (N. Y.) 188. J. 2 The dictum of Lord Eldon in 476 IMPLIED COVENANTS, AND HOW COVENANTS given in this countiy,^ and it may be safely said that in the creation or transfer of an estate of freehold, no covenant for title is implied at the present day by the common law, unless in the cases of an exchange or partition, or, perhaps, where the word give may happen to be employed, and it may be doubted whether such an effect would be given even to this word.^ On the creation of an estate less than freehold, however, a covenant for title has been from the earliest times implied from the words of leasing,^ " such as demisi, concessi, &c." 1 Young V. Hargrave's Adminis- trator, 7 Ohio (Part 2), 63 ; Black V. Gilmore, 9 Leigh, (Va.) 449 ; Gee V. Pharr, 5 Alabama, 588 ; Allen v. Sayward, 5 Greenleaf, (Me.) 230 ; Kickets v. Dickens, I Murphy, (N. Car.) 346 ; Deakins v. HoUis, 7 Gill & Johns. (Md.) 311; Huntly u. Waddell, 12 Iredell's Law, (N. Car.) 33. 2 The cases of Allen v, Sayward, Rickets v. Dickens, and Deakins v. HoUis, 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- plies no warranty, in conveyances taking effect under that statute. In Roebuck v. Dupuy, 2 Alabama, 538, this last question was left undecided. By the recent English statute of 8 & 9 Vict. c. 196, § 4, it is declared " that the word ' give ' or the word ' grant ' in a deed executed after the first day of October, 1845, shall not imply any covenant in law, in respect of any tenements or hereditaments, except so far as the word ' give ' or the word ' grant ' may, by force of an Act of Parliament, imply a cove- nant." In the recent case, however, of Doe d. Starling v. Prince, 15 Ju- rist, 632, 5 Eng. Law & Eq. E. 420, it was held that the statute did not so entirely take away the effect of the word grant as to render in- effectual a conveyance which other- wise would operate as a covenant to stand seized to uses. 3 Co. Litt. 45 b ; Andrew's case, Cro. Eliz. 214 ; Nokes's case, 4 Coke, 81 ; Spencer's case, 5 Coke, 16 ; Touchstone, 160, 165. In Style v. Hearing, Cro. Jac. 73, it was " Re- solved, by all the Justices, that upon the words demise and grant, without other words which comprehend any warranty in them, this action well lies.'' On the other hand, the words yielding and paying implied also a covenant on the part of the lessee to pay the rent reserved ; Butler's note to Co. Litt. 384 a; Bac. Abr. Covenant B. ; Eoyer v. Ake, 3 Penn. R. 465. Some old authorities are to be found which decide that these words have a still larger signification, and that they make an express' cove- nant, Hellier v. Gaspard, 1 Siderfin, FOR TITLE MAY BE LIMITED OR QUALIFIED. 477 and such is still the law at the present day,^ and the cove- 266 ; Newton v. Osborn, Styles, 387 ; Porter v. Swetnam, Id. 406-431 ; but even at tliat day the authority of these cases was not uncontradicted, Anon, 1 Siderfin, 447 ; 1 Saunders, 241, note; Harper w. Burgh, 2 Lev- inz, 206 ; and the later authorities have since consistently held that the covenant thus created is not express, but implied ; Webb v. Eussel, 3 Term, 402 ; Mills v. Auriol, 4 Id. 98 ; Vyv- yan v. Arthur, 1 Barn. & Cress. 410 ; Iggulden V. May, 9 Ves. 330 ; Church V. Brown, 16 Id. 264 ; Kunckle v. Wynick, 1 Dallas, (Pa.) 307 ; Kimp- ton V. Walker, 9 Vermont, 191. This question has practically some impor- tance, as, if the covenant is to be deemed an express one, the lessee is still bound to his lessor for the rent, notwithstanding an assignment of the terra, and acceptance of the rent by the lessee from the assignee ; Mills v. . Auriol, supra ; Ghegan v. Young, 11 Harris, (23 Penn. State E.) 18 ; while if the covenant is merely implied, the liability for rent is but co-extensive with the occupation, and the lessee is not liable for the rent accruing after his assignment to an- other, and the acceptance of the rent by his lessor from the latter ; Walker v. Physick, 6 Barr, (Pa.) 202. The remarks of Mr. Baron Piatt, in his work on Covenants, p. 10-18, in opposition to the generally received opinion that covenant will lie against a grantee by deed poll, by reason of his acceptance of the estate, have been acted upon in Pennsylvania, where it has been held that covenant will not lie against a grantee by deed poll ; Maule v. Weaver, 7 Barr, (Pa.) 329 ; Irish ;;. Johnston, 1 Jones, (11 Peim. State R.) 488 ; and see Jen- kins V. Robertson, 1 9 Eng. Law & Eq. R. 550. In a recent case in New Jersey, however, will be found an able examination by counsel of the authorities in opposition to such a conclusion, and a decision accord- ingly ; Finley u. Simpson, 2 Zabris- kie, (N. J.) 331, and a recent statute in Pennsylvania has provided that "in all cases now pending or here- after to be brought in any court of record in this Commonwealth to en- force the payment of ground-rent due and owing upon lands or tene- ments held by virtue of any lease for life, or a term of years, or in fee, the lessor, his heirs and assigns, shall . have a full and complete remedy therefor by action of covenant against the lessee or lessees, his, her or their heirs, executors, adminis- trators or assigns, whether the said premises out of which the rent issues be held by deed poll or otherwise." Act of 25th April, 1850, § 8. 1 Merrill v. Frame, 4 Taunton, 329 ; Baber v. Harris, 9 Adolph. & Ellis, 532 ; Williams v. Burrell, 1 Com. Bench, 402 ; Frost v. Raymond, 2 Caines, (N. Y.) 1 94 ; Grannis v. Clark, 8Cowen,(N. Y.) 3R; Barney y. Keith, 4 Wendell, (N. Y.) 502; Tone v. Brace, 11 Paige, (N. Y.) 569 ; Sum- ner V. Williams, 8 Mass. 201 ; Dex- ter V. Manly, 4 Gushing, (Mass.) 14; Knapp V. Marlboro, 3 Williams, (Vt.) 282 ; Maeder v. City of Carondelet, 26 Missouri, 115. It has been re- cently denied in New Hampshire, that any such effect can be implied from the words " let and lease," Lovering v. Lovering, 13 N. Hamp. 517; and the decision is sought to 478 IMPLIED COVENANTS, AND HOW COVENANTS nant thus implied is not merely for quiet enjoyment, but also that the lessor had the power to demise.-'^ be based upon the absence of these ■words in the older authorities. The only difference would seem to be that they use the Latin word demisi, of which " lease " seems certainly a fair translation ; and, apart from this, the cases use the expressions " grant, de- mise, etc.," or " grant, demise, and the like" which would seem to infer that they meant a covenant to be implied from any words of leasing. In Blacli; V. Gihnore, 9 Leigh, (Va.) 448, the Court took it for granted that in a lease the words " rent and lease " would imply a covenant ; " for a lease for years is looked upon in the law less as a conveyance of an es- tate than as a contract for the pos- session." The words " grant and demise " do not, however, it would seem, cre- ate a covenant in the assignment of a lease ; Landydale v. Cheyney, Cro. Eliz. 157. " Although the word grant or demise" it was said in the recent case of Blair v. Eankin, 11 Missouri, 442, " create an implied covenant against the lessor, yet it is nowhere said that the same words will, in an assignment, create an im- plied covenant against the assignor. The object and intent of the parties in making an assignment is to put the assignee in place of the lessee, and when that is done the assignor ceases to have any further concern with the contract unless he has bound him- self by express covenants." So, in Waldo V. Hall, 14 Mass. 486, one " granted, bargained and sold " a lease, and the assignee was evicted by a title paramount to that of his assignor, and it was held that the latter was not liable — that these words cre- ated no covenant in an assignment. The New York Revised Statutes (Part 2, c. 1, art. 4, § 140), de- clared that " no covenant shall be implied in any conveyance of real estate, whether such conveyance con- tain special covenants or not," which in Kinney v. V7atts, 14 Wend. 39, was held by the Supreme Court to extend to leases, but in Tone v. Brace, when before the Vice-Chan- cellor (1 Clark's Ch. Rep. 609), this was denied, and the statute was held not to extend i to leases, they not be- ing " conveyances of real estate," within the meaning of the statute, and this, on appeal, was affirmed by the Chancellor, 8 Paige, 597 ; 11 Id. 569. In the recent case, however, in the Supreme Court, of Baxter v. Kyerss, 13 Barbour's S. C. K. 284, Johnson, J., said in the course of the opinion, " Since the Revised Stat- utes, no covenant can be implied in any conveyance of real estate (1 R. S. 738, § 140). This has been held to apply to leases for years ; Kinney V. Watts, 14 Wendell, 38. Chancel- lor Walworth, in Tone v. Brace, 8 Paige, 597, remarks, that but for the authority of Kinney v. Watts, he should be of opinion that the statute did not apply to leases for years, which were mere chattel interests. But I am of opinion that the Su- preme Court were clearly right, and that leases of this description are directly within the letter and spirit of section 140. By 1 R. 8. 762, § 86, the term real estate is declared to embrace all chattels real except leases for a term not exceeding FOR TITLE MAY BE LIMITED OR QUALIFIED. 479 In the absence, however, of such words, as for Instance where the lease is by parol, although it is well settled that the law will imply a covenant for quiet enjoyment,^ yet it seems to be at least doubtful whether a contract, amounting to a covenant that the lessor has the power to demise, is created or implied from the mere relation of landlord and tenant. three years, and by 2 R. S. 186, § 6, no estate or interest in lands other than leases for one year, can be created, unless by act or operation by law, or by deed, or conveyance in writing, subscribed by the party creating the same. The conveyance in this sec- tion mentioned need not be under Seal. .It is sufficient that it is in writ- ing and subscribed by the party cre- ating the estate. The statute there- fore applies to all leases in writing for a term exceeding three years, whether under seal or not." But in the subsequent case of the Mayor of New York v. Mabie, 3 Kernan, 160, the Court of Appeals, after citing Tone V. Brace, was " satisfied that the con- struction adopted by the Chancellor is the true one, and that there is nothing in the provision of the Re- vised Statutes under examination which prohibits us from finding in the grant in question an implied cov- enant against the acts of the grantor and others claiming by lawful title. The result would be the same if the question had arisen upon a lease for years of land," and in the recent case of Vernam v. Smith, 1 Smith, 333, this decision was approved. 1 Holder v. Taylor, Hobart's R. 12; Cloak v. Harper, Freem. 121; Note to 1 Saunders, 329 ; Frazer v. Skey, 2 Chitty, 646 ; Line v. Steven- son, 5 Bing. N. C. 183 ; Burnett v. Lynch, 5 Barn. & Cress. 609, per Littledale, J. ; Grannis v. Clark, 8 Cowen, (N. Y.) 36 ; Croiiche v. Fowle, 9 N. Hamp. 219. The words of leasing, however, cannot, it would seem, be made to imply a cove- nant of greater scope than for title. In Hinde v. Gray, 1 Manning & Granger, 413, the defendant demised to the plaintiff a brewery, " and also the exclusive and such other privi- lege as the defendant then enjoyed • of supplying ale," &c., to certain pub- lic houses then the defendant's prop- erty, or under his control, " that is to say, the Punch Bowl," &c. The declaration averred, in covenant, that the defendant leased the Punch Bowl to another, who bought his ale elsewhere. On special demurrer, the Court held that the declaration should have shown loliat the privilege of the defendant was, and it was doubted if the word demise had ever been held to amount to a covenant except when connected with land. And to the same effect are Howard v. Doolittle, 3 Duer, (N. Y.) 474 ; Banks v. White, 1 Sneed, (Tenn.) 614 ; Car- son V. Godley, 2 Casey, (26 Penn. State R.) 117. 2 Bandy v. Cartwright, 8 Excheq. 913; Carson v. Godley, 2 Casey, (26 Penn. State R.) 117; Ross v. Dysart, 9 Casey, (33 Penn. State R.) 453 ; Dexter y. Manley, 4 Gushing, (Mass.) 14 ; and see the other cases hereafter cited in this connection. 480 IMPLIED COVENANTS, AND HOW COVENANTS Tims, in a case in tlie Exchequer,^ where, in assumpsit, the declaration stated that before and at the time of making- the agreement thereinafter mentioned, the defendant held certain premises for the residue of a term of years, and agreed to let the same to the plaintiff' who then agreed to take them at a certain rent, and in consideration of the premises the defendant promised the plaintiff that he should quietly hold and enjoy during the said term, nevertheless he was evicted by the party entitled to the reversion, it was held, on demurrer, that the declaration was bad, as, said Lord Abinger, " If the plaintiff originally became tenant to the defendant without any agreement as to the eviction, the law would not afterwards impose such a liability on the defendant as is here stated.^ No such liability arose from the simple relation of landlord and tenant,^ and that we think, is the relation on which the plaintiff has declared. The promise is laid more largely than the law will imply from such a relation." ^ So, in a more recent case in the 1 Granger v. Collins, 6 Mees. & mon Pleas, Messent v. Reynolds, 3 Welsby, 460. Com. Bench, 194, there was a writ- 2 That is to say, there must be an ten agreement to let, followed by executory consideration to sustain possession taken under it, and the such a promise, as a, warranty of a tenant having been evicted by the chattel made after its sale cannot be reversioner, sued in assumpsit on a enforced, unless some new considei-a- promise that in consideration of the tion arise at the time of giving the agreement audits performance by the warranty; Roscorla v. Thomas, 3 plaintiff, the latter might quietly use, Queen's Bench, 234 ; Hogins u. occupy, possess and enjoy the prem- Plympton, 11 Pickering, (Mass.) 97 ; ises for the term. On a case stated, Williams v. Hathaway, 19 Id. 387; judgment was entered for the defend- Bloss V. Kittridge, 5 Vermont, 28. ant, principally, it would seem, on 3 This was cited and approved in the ground that the agreement was the late case of Maeder v. City of not an absolute one, as it contained Carondelet, 26 Missouri, 115 ; but a reference to certain " conditions there was there an express stipula- mentioned in a memorandum," and tion in the lease that nothing therein which were not set forth in the dec- contained should be construed to im- laration, though it was thought to be ply a covenant for quiet enj,oyment. ' at least doubtful whether, apart from 4 In a subsequent case in the Com- this, a contract for quiet enjoyment FOR TITLE MAY BE LIMITED OR QUALIFIED. 481 same court,-^ the plaintiff declared in assumpsit, upon a demise alleged to have been made on the terms that the defendants had good title to the premises, and that the plaintiff should quietly enjoy them during the term, and alleged that the premises having been distrained upon for non-payment of a paramount rent charge, the plaintiff had been obliged to pay the same, by reason whereof he had not had the quiet enjoyment of the premises, nor held the same free from incumbrances, nor had the defendants good title at the time of the demise. On the trial, it appeared that the demise was by parol, and a verdict was entered for the plaintiff", with leave to set it aside if the Court should be of opinion that a covenant for quiet enjoyment could not be implied by law from a parol demise, and the Court in banc were all of opinion that there was not a covenant for good title, but only for quiet enjoyment during the term ; the plaintiff' had, therefore, misdescribed the covenant arising ■would be iinpUed from a mere agree- ment to let. " We are asked to im- ply," said Tindal, Ch. J., " from the agreement set out in the case, a cov- enant on the part of the defendant that the plaintiff should and might quietly use, occupy, possess and en- joy the premises for the term for which the defendant had agreed to let them. It may be t^at a covenant for quiet enjoyment may be implied from a mutual agreement to let and take. But passing that by, it ought at all events to appear that there is an absolute agreement to demise for a term ; whereas, if this agreement be looked at, it will be seen that the defendant does not agree to demise to the plaintiff absolutely for eight years and a quarter, but ' subject to the same conditions as are mentioned in the memorandum to him from Mr. Flight.' How are we to say that the 41 conditions to which reference is thus made do not apply to the term ; and, that it might not be legally deter- mined, or that it was not avoided by some breach of the conditions ? The inference, therefore, which the plain- tiff seeks to draw in his declaration, is one that is not supported by law ; " and Cresswell, J., added, " There is no evidence of an express contract for quiet enjoyment ; but it is said that the law will imply it from the agreement set out. . . Even assum- ing that the word ' let' in an agree- ment is equivalent to 'demise' in a lease under seal (which I am not pre- pared to admit), that would only raise an implied covenant co-extensive, ac- cording to Adams v. Gibney, (infrct^ p. 484,) only with the estate out of which the lease is granted." 1 Bandy v. Cartwright, 8 Excheq. 913. 482 IMPLIED COVENANTS, AND HOW COVENANTS out of the relation of the parties. Leave was however granted, on payment of costs, to have a new trial, but it afterwards appearing that the only point reserved having been whether a covenant for quiet enjoyment could be im- plied by law from a parol demise, the Court discharged the rule for a new trial and entered judgment upon the verdict. So, in a recent case in New York, it was held that where premises were occupied under an agreement to let, not un- der seal, without any express covenant, or the words grant or demise, no covenant for title could be implied, as it was said that " it never was held that a mere sale or lease im- ported a warranty of title iii the grantor or lessor of real estate, as in the case of personal property,"-' though it is at the same time considered that an agreement that the tenant shall quietly enjoy the premises is implied in the fact of a demise.^ In a recent case in Pennsylvania, the widow of an intes- tate 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, under which proceeding the tenant was evicted by the purchaser, and brought assumpsit against the adminis- tratrix for not having permitted him to enjoy the posses- sion. The Court below nonsuited the plaintiff', but this was reversed on error, after the case had been twice argued, and it was held that the plaintiff" was entitled to recover.^ 1 Baxter v. Ryerss, 13 Barbour's Ch. J.: "A farm was leased for five S. C. 284, supra, p. 478. years. The tenant went into posses- 2 Vernam v. Smith, 1 Smith, (N. sion, and improved the property at a y.) 332 ; and see Mayor of New great expense of money and labor, York V. Mabie, 3 Kernan, (N. Y.) so that its produce, for the last two 160, where, however, there were years, would have been worth much words of leasing used. more than it was at any time pre- 3 Maule V. Ashmead, 8 Harris, (20 vious. But at the end of three years ' Penn. State R.) 482. The following he was turned out, and he brings this was the opinion delivered by Black, action to recover compensation for FOR TITLE MAY BE LIMITED OR QUALIFIED. 483 Some expressions in recent cases, however, seem to favor the conclusion that the relation of landlord and tenant implies also a covenant that the former has the power to demise.^ The covenant implied from the words of leasinsf, differed from that implied from dedi, both as to source and effect. The former arose from contract — the latter from tenure. The warranty was a real covenant in its strict sense, while on the former the tenant recovered damages as a recom- pense for the term lost, and not another term in its place. The warranty implied from dedi was, moreover, unre- strained by any express warranty which the deed might contain,^ while the covenants implied from the words demise and grant, fell within the maxim expressum facit cessari taciturn, and were modified or restrained by express cove- nants. Thus, in Nokes's case,^ the lessor, after employing the words demise and grant, added a covenant for quiet enjoyment, " without eviction by the lessor, or any claiming his loss. This is one of those hard defendant, and it is somewhat curious cases, which, sometimes, are said to that the Supreme Court had, at one malse bad precedents. But every time, determined to affirm the judg- member of the Court is clearly of ment, and an opinion to that effect opinion that the law of the case, as was actually written, and is now be- well as its merits, is with the plaintiff, fore me. and that his technical right to recover i Thus in Banks v. White, 1 Sneed, is not less plain than the justice of (Tenn.) 614, it was said; "The law his demand. It is not denied that does not imply any warranty as to the word tJemisl, in a lease, implies a the continuing condition of the prop- covenant for quiet enjoyment during erty demised. The only implied war- the term. That word was not used ranty is as to the title, and any acts here, for the lease was made by parol, by or under the defendant which and the parties did not understand would affect the use of the property." Latin. But the word lease is a fair So in Wade v. Halligan, IG Illinois, translation of riemisi, and ought to be 511, it was said : " There were no ex- and is interpreted in the same way press covenants in the lease for quiet by the Courts ; Bawle on Covenants possession or enjoyment. Still the for Title, 3G2; 5 Bacon's Abr 601; law will imply covenants against par- Cro. Eliz. 3'?." In the argument of amount title, and against such acts of this case, the English cases cited nu- the landlord as destroy the beneficial pra, of Granger v. Collins, and Mes- enjoyment of the lease.'' sent K. Reynolds, were relied on by the ^ Supra, t^. i68. 3 4 Coke, 81. 484 IMPLIED COVENANTS, AND HOW COVENANTS under- Mm" and it was held that " the said express cove- nant qualified the generality of the covenant in law, and restrained it by the mutual consent of both parties, that it should not extend further than the express covenant," and this has been recognized as settled law at the present day.^ Nor, it would seem, can the implied covenant in the crea- tion of a leasehold endure longer than during the continu- ance of the estate out of which it was granted. Thus in an old case,^ a tenant for life having made a lease by the word demisi, the lessee was evicted by the remainder-man after the death of the tenant for life and before the effluxion of the term, and brought covenant against the executors of the latter, but it was held that " the covenant in law ends and determines with the estate and interest of the lessor ; " and in a somewhat recent case in the Common Pleas, a decision was made to the same effect,^ which was cited and approved 1 Frontin i). Small, 2 Lord Raym. 1419 ; Merrill u. Frame, 4 Taunton, 329 ; Suhlencker v. Moxsy, 3 Barn. & Cress. 789 ; Line v. Stephenson, 5 Bing. N. C. 183. In other words, when a lessor means to limit his lia- bility by binding himself to protect the tenant only against disturbances or defects of title arising from the lessor's own acts and ihe acts of those ■who represent or claim under him, and employs a special covenant for this purpose, the law will not render it useless, and defeat his intention by overriding it with the more enlarged general covenant, which the law oth- erwise implies from the very words of leasing ; Deering v. Farrington, 1 Modern, 113 ; S. C. 1 Freeman, 368; 8 Keble, 304. 2 Swan V. Searles, Dyer, 257 a; S. C. Benloe & Dalison, 150 ; see also Cheiny v. Langley, 1 Leonard, 179. 3 Adams v. Gibney, 6 Bingham, 656. " That the word demise in a lease for years," said Tindal, Ch. J., who delivered the opinion, " imports and makes a covenant in law for quiet enjoyment by the lessee, at least during the continuance of the estate out of which the lease is granted, is clear from all the author- ities, and is admitted by the defend- ant ; but it is contended on his part, that such implied covenant ceases with his estate, as well upon the ground that it is rather in the nature of an implied warranty than of an implied covenant, as upon the direct authority of decided cases. If it had been necessary to determine this case upon the ground of distinctions above referred to, considerable doubt would be thrown upon such distinction in the case of a chattel real, by the au- thority of Co. Litt. 389 a, where it is laid down ' that a warranty cannot be annexed to chattels real or per-, sonal ; but if a man warrant them, FOR TITLE MAY BE LIMITED OR QUALIFIED, 485 in a late case in Pennsylvania.-' The implied covenant is therefore obviously more restricted in this respect than express covenant for quiet enjoyment.^ an the party shall have covenant.' We think, however, it is sufficient to say that the cases which have been de- cided on the precise point now raised, are too strong to get over. Such is the case in Dyer, 257 a, determined in Michaelmas Term, 8 & 9 Eliz. The lease in that case, as in the present, was by indenture made by tenant for life, by the word demise. The ouster in that case, as in this, was by the remainder-man after the death of the tenant for life, and be- fore the effluxion of the term. The action in that case also, as in this, was an action against the executors of the lessor, to recover damages for the breach of covenant, (see the form of the declaration in Bedloe's Rep. 150). And after two arguments it was held in that case by three of the Justices ' That the executors should not be charged by this covenant in law ; because the covenant in law ends and determines with the estate and interest of the lessor ; ' also ' that no cause of action is given against the testator in his lifetime.' And, although one of the Justices differed from the rest, yet he admitted, if the lease had been by deed poll, in- stead of by indenture, he should have agreed with his companions ; a dis- tinction which is not assented to by the learned rejjorter. The same principle is laid down in Hj'de v. The Canons of Windsor, Cro. Eliz. 553, and in the case of Bragg o. Wiseman, 1 Brownlow, 23, where covenant is brought against the ex- ecutor of the husband upon a lease 41* by husband and wife, and it is laid down ' that a covenant in law shall not be extended to make one do more than he can, which was to warrant it as long as he lived, and no longer.' Unless, therefore, some very strong and insuperable objec- tion had been raised to the princi- ple of those decisions, which has not been done in the present case, we think it safer to adhere to them, the doctrine of which has been adopted in books of high authority ; amongst others, see Sheppard's Touchstone, 160, and Com. Dig. Covenant, C. And no injustice can be occasioned to the lessee by this decision, who must have known, from the form of the reservation in the lease, that his lessor was no more than a tenant for life, but was contented to accept a lease without an express covenant for quiet enjoyment." ' McClowry v. Croghan, 1 Grant's Cases, (Pa.) 311. 2 The distinction between an ex- press and an implied covenant was very recently laid down with great clearness in the case of Williams V. Burrell, 1 Com. Bench, 402. A lease which was invalid by reason of an excessive execution of a power, contained a clause that the said les- sor "for himself, his heirs, and as- signs, the said demised premises, etc., against himself and all other persons, etc., shall and will during the said term warrant and defend." On the death of the lessor, who was but ten- ant for life, the lessees were evicted by the remainder-man, and brought 486 IMPLIED COVENANTS, AND HOW COVENANTS It has, however, in another respect a greater scope, since it will be remembered that an eviction is not necessary to covenant against the executors of the lessor, who contended that this clause was not an express, but an implied covenant, so as to bring the case within the rule that upon im- plied covenants broken after the covenantor's death, his executor is not liable, and Tindal, Ch. J., held the following language : "It was ad- mitted, on the argument before us, both on the part of the plaintiff and the defendant, that the clause above set forth, being found in a demise not of a freehold interest, but of a term for years only, was not strictly and properly a warranty. Indeed, all the authorities agree upon the point, that the warrantee in such case can neither vouch nor bring war- rantia chartce, nor use it by way of re- butter, the ordinary modes by which a warranty is made available when annexed to an estate of freehold of inheritance, Co. Litt. 389 a ; Hob. :i. It was also admitted on the part of the defendants that although such clause of warranty, when annexed to the demise of a chattel interest, was not strictly and properly a warranty, yet that it amounted to a covenant in law for quiet enjoyment ; but it was at the same time contended by them that it amounted to a covenant in law only ; and that, being a cove- nant in law, it would extend no fur- ther than to protect the estate which the lessor could lawfully grant ; that is, in this case, a term of years deter- minable with his own life; whereas, on the part of the plaintiff, it was insisted that the clause in question amounted to an express covenant for quiet enjoyment, and that, being an express covenant, it extended to protect the whole term which was purported to be granted by the lease. And, after hearing the argu- ment, we are of opinion that the construction contended for on the part of the plaintiff, is the just and proper construction, and that the clause now under consideration op- erates as a covenant for quiet enjoy- ment during the whole of the term granted by the lease. For, looking at the words of the warranty, we hold that they do, in their plain and literal meaning, import an agree- ment on the part of the lessor that the lessee shall enjoy the land de- mised during the term mentioned in the lease ; and that such words do consequently amount to an express covenant to that effect, upon the principle laid down by Chief Baron Comyn, in his Digest, tit. Covenant (A. 2), that 'any words in a deed which show an agreement to do a thing, make a covenant.' " The distinction between cove- nants, and the only distinction (so far as relates to the present inquiry), we take to be this, they are either covenants by express words, or cove- nants in law. ' There are two kinds of covenants,' says Lord Coke, Co. Litt. 139 b, ' a covenant in deed and a covenant in law ;' or as it is put in Vaughan's Reports, page 118, 'AH covenants between a lessor and his lessee are either covenants in law, or express covenants.' And that the covenant now before us does not fall within the class of covenants in law, FOR TITLE MAY BE LIMITED OR QUALIFIED. 487 the breach of an implied covenant in a lease, the words demise, or grant, implying, as we have seen, not only a is clear from considering the nature of such covenants. A covenant in law, properly speaking, is an agree- ment which the law infers or inaphes from the use of certain words having a known legal operation in the crea- tion of an estate ; so that, after they have had their primary operation in creating the estate, the law gives them a secondary force, by imply- ing an agreement on the part of the grantor to prote<;t and preserve the estate, so by those words already created ; as, if a man by deed de- mise land for years, covenant lies upon the word ' demise,' which im- ports or makes a covenant in law for quiet enjoyment ; or, if he grant land by feolTnient, covenant will lie upon the word ' dedi' But the argu- ment in the present case is not founded upon the legal eifect or conse']uence of any words of de- mise, but on that which is alleged to be the necessary construction of the words employed in the express clause of warranty. The covenant, therefore, has not any of the prop- erties or the character of a covenant in law. " The argument on the part of the defendants has proceeded, through- out, on the ground, that, as the clause in the lease is not in its form and terms an express covenant for quiet enjoyment, but as such covenant can only be gathered and collected from the clause of warranty, so it must of necessity be ranked amongst implied covenants; and that being an implied covenant only, it must be considered as a covenant in law ; as if there were some rule or principle that all implied covenants were covenants in law. But we think there is fallacy in this argument, from the use of the terra ' implied covenant ' in a sense which does not properly belong to it. In every case, it is always matter of construction to discover what is the sense and meaning of the words em- ployed by the parties in the deed. In some cases, that meaning is more clearly expressed, and therefore more easily discovered ; in others, it is ex- pressed with more obscurity, and dis- covered with a greater difficulty. In some cases, it is discovered from one single clause ; in others it is only to be made out by the comparison of different and perhaps distant parts of the same instrument. But, after the intention and- meaning of the parties is once ascertained, after the agreement is once inferred from the words employed in the instrument, all difficulty which has been encoun- tered in arriving at such meaning is to be entirely disregarded ; the legal effect and operation of the covenant, whether framed in express terms, that is, whether it be an express covenant, or whether the covenant be matter of inference and argument, is precisely the same ; and an implied covenant, in this sense of the term, differs nothing in its operation or legal consequences from an express covenant. Now it is in this sense that the counsel on the part of the defendants appear to have used the term ' implied covenants.' The cove- nant for quiet enjoyment, they con- tend, is an implied covenant, because 488 IMPLIED COVENANTS, AND HOW COVENANTS covenant for quiet enjoyment, but also a power to demise, • — which would therefore at times avoid the questions which present themselves under the former covenant as to what constitutes an eviction, since the lessee may, it would seem, at his option, sue at any time, the covenant being broken as soon as made. It might be doubtful whether the American Courts would, on this ground, deny to an assignee of the land, the right to take advantage of the implied covenant.^ Owing to a misapprehension of one or two older cases, the dangerous doctrine has more than once been broached, that a covenant for title may be implied from a recital. In the early case of Severn v. Clerk,^ in an action of debt on a bond conditioned to perform certain articles contained in a deed, \^■he^eby the obligor had assigned a term of years, reciting that he was possessed of them, it was held, that if the party had not that interest by a good and lawful convey- ance, his obligation was forfeited. It was said that the recital of itself was nothing, but being joined and consid- ered with the rest of the deed, it was material. It has, however, been chiefly owing to the misapprehension ^ of the case of Johnson v. Procter,* that such an opinion has been it is found in the deed in tlie form of ter and description which, as we have a warrantjr, and not in that of an ex- already seen, does not belong to the press covenant for quiet enjoyment; covenant now under discussion. And and they then further contend, that, upon considering the several author- being an implied covenant, it must ities referred to, they will be found of necessity be a covenant in law ; to in accordance with this view of the which it appears to us to be a suffi- case." cient answer that an implied cove- i Supra, p. 337 et seq. nant, in the sense in which the phrase 2 \ Leonard, 122. is used in the argument, is to all in- 3 In Browning v. Wright, 2 Bos. & tents and purposes the same as an Pull. 13, per Lord Eldon, then Chief express covenant; and that it is only Justice of the Common Pleas, those covenants which the law itself ^ Yelverton, 175; 1 Bulstrode, 3, implies, that can be properly consid- in which the report is more full, ered as covenants in law — a charac- FOR TITLE MAY BE LIMITED OR QUALIFIED. 489 entertained as to tlie effect of a recital. In that case, A and B being joint tenants for years of a mill, A assigned all his interest to C, without the assent of B, and died. B afterwards, by indenture reciting the lease and that it came to him by survivorship, granted the residue of the term to J. S., and covenanted for quiet enjoyment, notwithstanding any act done by him. He also gave the purchaser a bond conditioned to perform the covenants, grants, articles, and agreements in the assignment ; and the purchaser, having been evicted by C of the moiety assigned to him, brought an action on the bond, and judgment was given in his favor. Lord Eldon seemed to consider the judgment as having turned on the recital, and that the recital itself amounted to a warranty. But the decision seems to have turned upon the word grant, and not at all upon the recital, and Lord St. Leonards, in noticing this case,^ says : " It seems mate- rial to refer the case of Johnson v. Procter to the true ground of the decision, because, if the case turned solely on the recital, it might, perhaps, be thought that a general recital in a conveyance of the inheritance of an estate, that the vendor is seized in fee, would amount to a general war- ranty, and would not be controlled by limited covenants for the title — a proposition which certainly cannot be sup- ported." Huston, J., took up the same misapprehension in Christine v. 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., strongly dissented at the time, and which, when the same case came up again, some years after, was overruled in a very accurate and lucid opinion.^ In a late case,* it was correctly said that " a grantor, and in some instances, even 1 2 Sugden on Vendors, 524. ^ Ferguson v. Dent, 8 Missouri, 2 16 Serg. & Rawle, (Penn.) 112. 673. 3 Whitehill v. Gotvvalt, 3 Penn. Rep. 327, per Kennedy, J. 490 IMPLIED COVENANTS, AND HOW COVENANTS strangers,^ may be estopped by mere recitals in a deed,^ and yet it does not follow that such recitals are covenants, either express or implied." So, it has often been made a question whether a covenant for title can be so construed, relatively to the quantity of land conveyed, as to be deemed an assurance to the pur- chaser of the existence of that quantity. For greater con- venience, this subject will be considered in a subsequent part of this chapter. In this connection may be considered one of the most important, and at the same time, difficult questions con- nected with the law of covenants for title, which is, how far these covenants (whether express or implied) may be limited or enlarged by the operation of otber covenants contained in the same conveyance. The subject is here introduced because in many States such questions have arisen between the different covenants implied by local statutes — between express covenants — and sometimes between express and implied covenants. Before referring, then, to these local statutes, it has been thought better to advert to the decisions which have arisen as to express covenants, and then apply them to those arising by implication. Such an arrange- ment will, it is hoped, avoid repetition. It has been already shown, that covenants for title are either general and absolute, — that is, covenants against the acts of all persons whomsoever claiming by title, or special and limited — that is, covenants extending only and restrained to the acts of the covenantor, or some other par- ticularly named person ; ^ and that, where the latter cove- ' Carver v. Jackson, 4 Peters, 1. pra, in the chapters treating of the re- 2 See supra, p. 407. spective covenants ; but, as Lord St. 3 The form by which the cove- Leonards observes, " although this is nants are thus restricted is given su- the usual and technical manner of FOR TITLE MAY BE LIMITED OR QUALIFIED. 491 nants are those employed, they are not broken by a defect of title caused by any other persons than those thus named.^ And when all the covenants in the deed are either general, or all are thus limited, the liabilities and rights of the re- spective parties admit of comparatively easy interpretation. But it sometinles happens that, through accident, inatten- tion or carelessness, one or more limited covenants are to be found with one or more general covenants in the same conveyance, hence presenting the apparent contradiction of a vendor being only willing to covenant against his own acts, while at the same time he covenants against those of all other persons. Whether, under such circumstances, the general covenants are to enlarge those which are limited, or whether they are to be restrained by them, is, then, when they are incapable of being reconciled with each other, a question of considerable perplexity and importance, ^ — for, on the on,e hand, as has been said,^ " however general the words of a covenant may be, if standing alone, yet, if from other covenants in the same deed, it is plainly and irresisti- bly to be inferred, that the. party could not have intended to use the words in the general sense which they import, the Courts will limit the operation of the general words ; " and, on the other, the application of the maxim, verba cartarwn fortius accipiuntur contra proferentem would forbid the limitation of absolute covenants, unless the intention, of which these covenants are no more than the expression, clearly appears on the face of the instrument. restraining covenants, yet au agree- 1 Supra, pp.. 19, 111, 171. ment in any part of a deed, that the ^ " Every case must depend upon covenants shall be restrained to the the particular words used in the in- acts of particular persons, will be strument before the Court, and the good, notwithstanding that the cove- distinctions will be found to be very nants themselves are general and nice and difficult ; " note to Gains- unlimited;" 2 Sugden on Vendors, ford v. Griffith, 1 Saunders, 59. 524 ; Brown v. Brown, 1 Levinz, 57 ; ^ Per Lord Alvanley in Hesse v. see infra. Stevenson, 3 Bos. & Pull. 575. 492 IMPLIED COVENANTS, AND HOW COVENANTS Lord St. Leonards has considered that four propositions can be deduced from the autl)orities, viz. : First. Where restrictive words are inserted in the first of several covenants having the same object, they will be con- strued as extending to all the covenants, although they are distinct. Second. Where the first covenant is general, a subse- quent limited covenant will not restrain the generality of the preceding covenant ; unless an express intention to do so appear, or the covenants be inconsistent. Third. As, on the one hand, a subsequent limited cove- nant does not restrain a preceding general one, so, on the other hand, a preceding general covenant will not enlarge a subsequent limited covenant. Fourth. Where the covenants are of divers natures, and concern different things, restrictive words added to one shall not control the generality of the others.-^ 1 2 Sugden on Vendors, 527. Mr. authorities; the second proposition Piatt 1ms arrana;ed the oases under (which together, or rather as eon- two heads : 1. Cases in which words nected with the first, is disputed by of qualification in the first part of a the learned editor, Mr. Sweet, of deed will apply to and limit covenants Mr. Jariuan's work on Conveyanc- in general terms, in a subsequent ing), is perhaps, hardly accurate ; ■part of the deed; and 2. Cases in for although a prior general covenant which a qualification in the latter will not, it appears, be restrained by part of the instrument will narrow a a subsequent limited covenant hav- preceding covenant expressed in ing a different object, yet where two general language ; Piatt on Cove- covenants relate to the same object, nants, 358. Many of the cases, how- restrictive words in the second may, ever, cited by Mr. Piatt under the it seems, control the generality of the second head, are placed by Lord St. first ; the third and fourth proposl- Leonards under the first. Mr. Part, tions seem to be unimpeachable." It in his late treatise on Vendors and may be proper here to notice that Purchasers, 372, in quoting the above some of the authorities do not appear classification of Lord St. Leonards, to take any distinction between cases observes : " Of the above proposi- where a general or unlimited cove- tions, the first, if read in connection nant precedes a special or limited with the above classification of the one, and where it /uWoms it ; in other covenants, and of their separate ob- words, the mere priority of position jects, seems to be warranted by the in the conveyance, of one over the FOR TITLE MAY BE LIMITED OR QUALIFIED. 493 First. The case of Browning v. Wright^ is constantly quoted as a leading authority upon the subject of one cove- nant being restrained by another, and has been generally classed under the first of these heads. In that case, in a deed purporting to convey an estate of fee simple, there was, first, a warranty ^ by the covenantor against himself and his heirs, followed by a covenant that notwithstanding any act done by him, he was seized, &c., without any manner of condition or restraint to alter or defeat the estate granted, "a«c? that he had good right and full power to convey the same in manner aforesaid." Then followed limited covenants for quiet enjoyment and for further assurance. The covenantee was evicted ^ by a title not within the lim- other, seems very often to be thought a matter of little or no moment. Thus, in Iggulden v. May, 9 Vesey, 325, it was said the exposition must be both ex antecedentibus et ex con- sequentibus, and in a note to Gains- ford V. Griffith, 1 Saund. 60 a, where some distinctions are noticed with re- spect to this matter of priority, Ser- jeant Williams observes, " It is ques- tionable whether much regard would now be paid to this mode of construc- tion. The chief object of courts of law at present is to discover the true meaning of the parties, and to con- strue the covenants accordingly. As far as the difference above laid down would tend to find out the intention of the parties, so far would it now be adopted, and no further. The pro- per rule seems to be that which Lord Mansfield laid down in a case where the question was, whether certain words in a covenant amounted to a condition precedent or not, ' that the dependence or independence of cove- nants was to be collected from the sense and meaning of the parties, 42 and that however transposed this might be in a deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance.'" Kings- ton u. Preston, cited in Jones v. Barkley, Douglas, 684. So it was said by Dallas, Ch. J., in Foord v. Wilson, 8 Taunton, 643, cited infra, p. 498, " The order in which the cov- enants stand, however transposed, is comparatively unimportant." 1 had attempted a difi'erent classi- fication of the cases from that adopted by the learned authors referred to, but finding it also prove unsatisfac- tory, have, for the most part, adhered to the arrangement of Lord St. Leonards. 1 2 Bos. &Pull. 13. 3 Expressed as in Williams v. Bur- rell, supra, p. 485, note. •' It was a constructive eviction. The covenantee became a tenant un- der the superior title. The reporters doubt, in a note to the case, whether this would be an eviction, but see supra, p. 269 et seq,' 494i IMPLIED COVENANTS, AND HOW COVENANTS ited covenants, and on a demurrer to his declaration it was argued on his belialf, that to adopt the rule contended for by the defendant — that the restriction of the prior special cove- nants must be eng-rafted on the subsequent general one — would be to establish the doctrine that whenever a special covenant was inserted, all general covenants must be re- strained thereby. It was, however, said by the Court, that if the doctrine did indeed necessarily follow, the demurrer could not be sustained, but the question was not whether a special covenant will restrain a general one, but whether the particular covenant on which the action was brought was general or special, and Lord Eldon ^ (after premising that in conveyances of a fee-simple estate, the purchaser was, according to the general practice, entitled to limited covenants only),^ said, " My opinion upon considering the whole deed is that it is a special one. What would be the use of the other covenants, if this were general] It would be of little service to the grantor to insist that the warranty, and the covenants for quiet enjoyment and further assur- ance were specially confined to himself and his heirs, if the grantee were at liberty to say, ' I cannot sue you on these covenants, but I have a cause of action arising upon a general covenant which supersedes them all.' It appears to me, from the words and context of the deed, that in such case we should be driven to say, that the grantor intended at the same time to give a limited and an unlimited warran- ty. The true meaning, therefore, of the covenant is, that the grantor has power to convey and assure according to the terms used, to which terms he refers by the words, ' in man- ner aforesaid,' namely, ' for and notwithstanding anything by him done to the contrary.' " ^ 1 Then Chief Justice of the Com- speet to the cases which have been mon Pleas. cited, it is to be observed that when 2 As to this, see infra. Chapter XI. a ger.eral principle for the construc- 3 Lord Eldon added, " With re- tion of an instrument is once laid FOR TITLE MAY BE LIMITED OR QUALIFIED. 495 An early case in New York ^ was somewhat similar to Browning v. Wright, and was decided upon its authority. down, the Court will not be restrain- ed from making their own application of that principle, because there are cases in which it may have been ap- plied in a different manner. The principle being once acknowledged, the only difficulty consists in making the most accurate application of it." In the early case of Nervin v. Munns, 3 Levinz, 46, the vendor covenanted that notwithstanding any act done by him to the contrary, he was seized in fee — that he had good right to convey — that the lands were clear of all incumbrances made by him, his father or grandfather, and that the vendee should quietly enjoy the estate against all persons claim- ing under the vendor, his father or grandfather ; and it was held that the second covenant, though general, was restrained by the first, to acts done by the vendor. So in Gervis v. Peade, Cro. Eliz. 615, tenant pur autre vie made a lease for twenty-one years, and covenanted that he had not done any act to prejudice the said lease, but that the lessee should enjoy it against all persons. The cestui que vie died, and the lessee, being evicted, brought covenant against his executor, "and it was ad- judged that it lay not, for the last words ' but that he shall enjoy it against all persons,' refer to the first words, viz., 'for any act done by him,' and so the covenant is not brok- en." So in Clanrickard v. Sidney, Hobart, 273, where in a grant of the third part of certain lands, there was a covenant for quiet enjoyment of such third part, and a general cove- nant 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, under the same line and covenant, as depending upon it ; which was ex- pressly only of the third part." So, in a recent case in the Irish Chan- cery, Martyn v. M'Namara, 4 Drury & Warren, 424, certain fee-simple estates and also lands held under leases for life renewable forever, were conveyed to trustees under a mar- ringe settlement, with a covenant by the settlor with the lady's father, that the property was of a given value, fol- lowed by a general covenant for good title, and then a particular covenant by the settlor during his life to renew these leases ; then succeeded limited covenants for quiet enjoyment and for further assurance. " The first and third of these covenants," said Sir E. Sugden, Chancellor, " are limited, the first relating to value, and the third to acts to be done by the covenantor during his own life ; but the second covenant for good title, considered by itself, would appear to be general, and the question would be whether, looking at the rest of the deed, at the subsequent covenants for title by the settlor and his son, the covenants for quiet enjoyment and for further assurance, which are strictly limited to the acts of the cove- nanting parties themselves and those claiming under them, it would not be inconsistent with the general tenor of the deed to hold that this second 1 Whallon V. Kauffman, 19 Johns. 97. 496 IMPLIED COA'ENANTS, AND HOW COVENANTS An undivided moiety of land was conveyed, " containing, by estimation, six hundred acres, and the same is hereby covenanted and warranted to contain at least five hundred acres." There was a limited covenant that in case of evic- tion from all or any part of the granted premises, the grantor should not only refund a proportional part of the consideration-money, but should pay the value of the im- provements, etc. Then followed a covenant for seizin and right to convey " in manner and form aforesaid." " There were also," the report says, " covenants for quiet enjoyment, against incumbrances, for further assurance, and a war- ranty," but whether these were general or limited is not mentioned. In the course of the prior conveyances from the original patentee to the defendant, there had been some reservations of certain parcels of the land, amounting alto- gether to several hundred acres, and although the plaintiff had actually received, under his deed from the defendant, over seven hundred acres exclusive of these reservations, he contended that the covenant for seizin, being general, was broken as to these parts — that by warranting that there should be five hundred acres at least,.the inference was that there might be more, and if more, that the covenants were to extend to it. As the principle has been repeatedly set- tled, that covenants for title shall not extend to the quantity covenant should be construed as un- cause, prove defective, and that, not limited, so as to bind the parties in to the party who would be the proper an absolute and unrestricted manner, hand to receive the money for the The subsequent covenants are not benefit of the wife and issue of the covenants by wholly different per- marriage. . . . The settlor meant to sons, but covenants by the former covenant only for what he had, for covenantor and an additional person, what might be in his power to settle." It would be absurd for a party in the It should be observed, however, that same deed, in relation to the same these remarks did not form any part property, to enter into the usual lim- of the decision, the Chancellor say- ited covenants, and yet bind himself ing expressly, " I am not now to de- absolutely to pay damages in case the cide the question as to the legal ex- title to the lands should, from any tent of this covenant." FOR TITLE MAY BE LIMITED OR QUALIFIED. 497 of land conveyed, unless such clearly appear to be the in- tention, it is difficult to perceive how there could, on this ground, have been a doubt as to the decision. The case vras, hovt^ever, considered by the Court without reference to this principle, and it was held that the first warranty, being only to the extent of five hundred acres, the other covenants went no further — the words " in manner and form afore- said," being sufficient to connect them with this limited covenant.^ 1 Davis V. Lyman, 6 Connect. 252, was a very clear case. In a conveyance of a fee-simple estate, the vendor covenanted that he had done no act to affect the title, and that the premises were clear of all mortgages, judgments or liens of the said parties of the first part of any nature or kind whatsoever, followed by a limited covenant of warranty, and it was held that all the covenants were limited ; which was unquestion- ably correct, not only on account of the intimate connection between the first and second covenant, but from the very words themselves of the latter. The case of Miller v. Heller, 7 Serg. & Rawle, (Pa.) 32, may be here noticed. Miller had, in June, 1 789, purchased land at sheriif 's sale, as the estate of Mounce Jones. In November of that year, and while Jones was still in possession. Mil- ler assigned his estate in the land to Heller, giving him a bond with this recital and condition : " Where- as, George Miller abovesaid, by a certain assignment, on a deed exe- cuted by the sheriif of Northumber- land County, to him, the said George Miller, for certain premises therein described, did grant, bargain, sell and convey the said premises by a 42* warranty, in said assignment men- tioned, unto him, the said John Die- ter Heller, and to his heirs and as- signs forever, now, the condition of the above obligation is such, that if the above bounden George Miller or his heirs, shall and do deliver peace- able possession of said premises to said John Dieter Heller or his heirs, at or before the fifteenth day of April now next, and warrant and defend the said premises against the present possessor, Mounce Jones, and all and every person attempting to hinder said John Dieter Heller or his assigns, from taking possession thereof as is aforesaid, and against said Georgp Miller and his heirs and assigns, then , the obligation to be null," &o. Miller brought an ejectment against Jones, in which he recovered possession, and delivered it to Heller; but the latter, being afterwards evicted by Nicholas Jones, who claimed under Mounce Jones, brought debt on the bond. The Court held, however, that the condition in the bond was evidently limited in its application to Mounce Jones himself, and not only did not extend to any one claiming under him, but was confined to the single act of putting the plaintiff in possession, at or before a certain 498 IMPLIED COVENANTS, AND HOW COVENANTS Browning v. Wright was followed in England by Foord V. Wilson ,1 where the assignor of a term for years cove- nanted that he had done no act to incumber — that, not- withstanding any such act, the lease was a good and sub- sisting one — and that he had good right to assign in manner aforesaid. Notwithstanding it was urged, with plausibility, that in the conveyance of a leasehold estate, where the title could not be so easily examined as in the case of a freehold, the purchaser must expect greater secu- rity from the covenants, it was clearly held by the Court that the intention of the parties was too plain to be gotten over — that the words " and that " connected the general covenant with the preceding limited one, and that the case was not distinguishable from Browning v. Wright, the time, and this having been done, the condition of tlie bond was satisfied. So, on the other hand, in Ireland V. Biruham, 2 Scott, 207, 2 Bing. N. C. 90, it was held that a covenant for quiet enjoyment was tied up until the lease to which it related should be a lease in possession. The de- fendant and another leased to the plaintiff the residue of a term of thirty years, granted in August, 1815, to commence on the expiration of a lease for twenty-one years granted in November, 1815 ; that is to say, the residue then demised, was to com- mence in 1836. The lessor cove- nanted, severally, but not jointly nor the one for the other, that the plaintiff paying the rent reserved, and performing the other covenants in the lease contained, should, during the term demised, quietly enjoy the premises without disturbance of the defendant or his co-lessor, or of any person claiming by, from or under them or any of thom. This co-les- sor having failed in payment of the rent due to the original grantor of the lease, the latter, in 1827, evicted the plaintiff, who had been previously in possession under the lease of No- vember, 1815, who then brought covenant, and it was held by the Court (Tindal, C. J.,) that the cove- nant in question was tied up to a covenant for quiet enjoyment during the term — that the words, the plain- tiff paging the said rent, &c., should, during the term thereby demised, quietly enjoy, was a conditional cov- enant, and the condition was only to be performed when the lessee should be in possession of the premises un- der the lease — it was, therefore, only a prospective covenant for quiet en- joyment for a term to commence in 1836, and as the condition could not take effect till that period should have arrived, so neither could the obligatory part of the covenant. 1 8 Taunton, 543 ; S. C. 2 J. B. Moore, 592. FOR TITLE MAY BE LIMITED OR QUALIFIED. 499 only difference being as to the natnre of the estate trans- ferred. Stannard v. Forbes^ was a stronger case than these. The vendor of a terra for eleven years if S. C. should so long live, covenanted that notwithstanding any act done by him, the lease was valid, and that the same and the term of eleven years therein expressed, were respectively in full effect, and in no wise determined or prejudicially affected otherwise than by effluxion of time ; and also that notwith- standing any such act the vendor had full power to sell for the residue unexpired by effluxion of time ; then followed limited covenants for quiet enjoyment and for further assur- ance. The life, however, on which the lease depended, had dropped before this assignment, and the covenantee was evicted by the remainder-man. It was urged for the plain- tiff' that the words in the second covenant, " otherwise than by effluxion of time," rendered the idea of its restriction nonsensical, as effluxion of time could have been no act of the covenantor, but it was nevertheless held,^ that these 1 6 Ad. & Ell. 572, 634 ; S. C. 1 wliere these occur, the authorities Nev. & Perry, 033. fully warrant us in comparing the 2 " In performing this task on any clause under immediate considera- particular occasion," said Lord Den- tion with all which pi-ecedes and fol- man, "we are not Hkely to derive lows it, even though not forming much assistance from the former de- parts of the same sentence, and with cisions that may be cited, as every the nature of the obligations entered instrument varies in some respects into, for the purpose of discovering from all others, and must be inter- and effectuating the intention really prated according to its own language, expressed by the parties.'' It should seem that the true gram- In all these English cases, it will matical sense of the words employed, be observed that the words of con- when that can be ascertained; must nectiou between the covenants, were prevail ; and no case can be quoted copulative conjunctions. But in in which our Courts have thought Broughton v. Conway, Dyer, 240, themselves at liberty to act in direct (see this case approved by Lord El- contravention of it. Such a, course lenborough in Gale v. Keed, 8 East, might indeed become necessary, for a 89, and applied to covenants con- deed may contain repugnant clauses; tained in an agreement for the disso- 500 IMPLIED COVENANTS, AND HOW COVENANTS words were indeed unnecessary, but that too strong infer- ences could not be safely drawn from that quality in legal documents ; that on the other hand, the absurdity of guard- ing himself from covenanting against any acts but his own, and in the same breath covenanting that the term was not affected by the acts of any person whatever, was glaring, and was rendered still more so by the repetition of the qual- ifying words in the succeeding covenants, and it was held that the case came within the authority of Browning v. Wright. The class of cases, then, which may be said to be based upon Browning v. Wright, appear to decide that where the instrument contains one or more general or unlimited cove- nants, which are connected with or refer to, and have the same object as one or more preceding limited covenants so as to join the latter with the former, it will be inferred that lution of a partnership,) a covenant that the vendor had not done any act whereby the grant might be in any manner impaired, but that the latter might enjoy without the disturbance of him or any other person, was held to be confined to acts done by the vendor, though of this case. Lord St. Leonards remarks that, " Certainly there were express words to get over, namely, ' or any other person,' which circumstance does not occur in any other of this line of cases, in all of which the reader will perceive that no word was rendered inoperative (ex- cept perhaps in Stannard v. Forbes, where the words, ' otherwise than by effluxion of time ' were rendered in- operative or useless by the construc- tion adopted by the Court). But the introductory clause was merely held to extend over all the distinct cove- nants, in the same manner as a gen- eral introduction to a will frequently influences the whole will." In Petes & Jervies's case, cited in the note to Broughton v. Conway, Dyer, 240, " tenant pur autre vie leases for twenty-one year's, and cov- enants that he has not done any act, but the lessee shall or may enjoy it during the years. Afterwards within the twenty-one years cestui que vie dies ; adjudged that the action of covenant does not lie, for but refers the words subsequent to the words preceding." Serjeant Williams, in referring to the case in a note to Gainsford v. Griffiths, 1 Saunders, 60, says, the cases inserted in the margin of Dyer are of great author- ity, being collected by Lord Chief Justice Treby. This case is, proba- bly, the same as that called Gervis v. Peade, reported Cro. Eliz. 615; see supra, p. 495. FOR TITLE MAY BE LIMITED OR QUALIFIED. 501 the covenantor intended that all the covenants should be restricted to his own acts or the acts of those claiming under him, and the preceding limited covenants will qualify and restrain the general ones ; in other words, when it clearly appears that the covenants are to be, as it were, cast in one mould, all having the same extent, Courts will not pick out one of them in which the limitation is less strongly or distinctly expressed than in the others, and upon it, fasten on the covenantor a general liability. In the absence, however, of any such direct connection with or reference to each other, as would irresistibly lead to the above conclusion, when the limited covenants belong to a different class, or rather have a different object from the unlimited ones, they will be held to produce no effect upon each other, and the former will not qualify the latter. This distinction between the different covenants was briefly recogtiized in an early case,-* and was subsequently adopted to its full extent by Lord Ellenborough in Howell V. Richards.^ The defendant covenanted that notwithstand- ing any act done by him he was seized and had good right to convey, " and likewise," that the plaintiff" should quietly enjoy without the interruption of the defendant or his heirs or any other persons whatsoever, followed by a similar general covenant against incumbrances, " excepting only a chief rent." It was contended (partially on the authority of Browning v. Wright), that these two last general cove- nants were restrained by the former, limited ones, but Lord Ellenborough held that there was no connection whatever between them. Not only were there no such copulative 1 Norman v. Foster, 1 Mo.^ern, enants, and the first is general, and 101, where Chief Justice Hale said, not qualified by the second," to which "If 1 covenant that I have a lawful Wylde, J., agreed, and said that one right to grant, and that you shall covenant went to the title, and the enjoy notwithstanding any claiming other to the possession, under me, these are two several cov- ^ n East, 633. 502 IMPLIED COVENANTS, AND HOW COVENANTS words as to lead to the conclusion that they were all to be considered together, but great stress was laid upon the dif- ferent character and object of the limited and of the general covenants. " It is perfectly consistent with reason and good sense, that a cautious grantor should stipulate in a more restrained and limited manner for the particular de- scription of title which he purports to convey, than for quiet enjoyment.^ He may suspect or even know that his tit|e is, in strictness of law, in some degree imperfect ; but he may at the same time know that it has not become so by an act of his own ; and he may likewise know that the imperfection is not of such a nature as to afford any rea- sonable chance of disturbance whatever to those who should take under it ; he may therefore very readily take upon him an indemnity against an event which he considers as next to impossible, whilst he chooses to avoid a responsi- bility for the strict legal perfection of his title to the estate, in case it should be found at any future period to have been liable to some exception at the time of his conveyance. He may have a moral certainty that the existing imperfections will be effectually removed by the lapse of a short period of time, or by the happening of certain immediately then im- pending or expected events of death, or the like ; but these imperfections, though cured so as to obviate any risk of disturbance to the grantee, could never be cured by any subsequent event, so as to save the breach of his covenant for an originally absolute and indefeasible title. The same prudence, therefore, which might require the qualification of one of these covenants, might not require the same qual- ification in the other of them, affected, as it is, by differ- ent considerations and addressed to a different oliject;" and he added, that he did not find any case In which the 1 See the remarks of TilgKman, J., in Bender v. Fromberger, 4 Dallas, 441, cited infra, p. 515. FOR TITLE MAY BE LIMITED OR QUALIFIED. 603 covenant for quiet enjoyment was all one with the covenant for title, or parcel of that covenant,^ or in necessary con- struction to be governed by it otherwise than, as accord- ing to the general rules for the construction of deeds, every deed was to be construed, — that is, according to the inten- tion of the parties. In this decision, little stress appears to have been laid on the presumption that the covenant against incumbrances was meant to extend beyond the acts of the covenantor, from the fact that there zvas expressly excepted " the chief rent issu- ing to the lord of the fee, if any such should be due ; " and on the maxim that expressio uniiis est exclusio alteiHiis, it might be fairly inferred that this was to be the only excep- tion. So, in the case of Duval v. Craig,^ the vendors cove- nanted that the premises were free of all incumbrances created or suffered by them or either of them, and that they would, against themselves and all and every person whomsoever, warrant and defend the premises, " with this warranty and no other, to wit, that if the said land or any part thereof, shall at any time be taken by a prior legal claim or claims, that then and in such case " they would make good the part so lost with other land of equal quality and quantity to be adjudged of by two impartial men, &c. " It is contended," said Story, J., who delivered the opinion, "that the two covenants in the deed are so knit together, that they are to be construed in connection, so that the 1 This distinction between the dif- nants respecting the seizin, the power ferent natures of the covenants was to convey, and the general title, may also observed in the opinion deliv- well consist with a restrictive cove- ered by Sewall, J., in Sumner v. nant against incumbrances, 2 Eol. Williams, 8 Mass. 162, already re- 250, 1. 5. And, taken together, the ferred to. " The covenants preced- several covenants stand unconnected ing and the covenants subsequent to in sense and expression, and uncon- the covenant against incumbrances, trolled the one by the other." are not of the same import. Cove- ^ 2 Wheaton, 45. 504) IMPLIED COVENANTS, AND HOW COVENANTS clause as to an indemnity with other lands, in case of an eviction by a prior legal claim, is to be applied as a restric- tion to both covenants, and if so, then the action cannot be sustained, for the declaration does not allege any eviction, or any demand or refusal to indemnify with other lands. There is certainly considerable weight in the argument. It is not unreasonable to suppose that when the parties had provided a specific indemnity for a prior claim, they mean to apply the same indemnity to all the other cases enume- rated in the first covenant. But something more than the mere reasonableness of such a supposition must exist to authorize a Court to adopt such a construction; The cove- nants stand distinct in the deed, and there is no incongruity or repugnancy in considering them as independent of each other. The first covenant being only against the acts and incumbrances under the parties to the deed, which, they could not but know, they might be willing to become re- sponsible to secure its performance by a pecuniary indem- nity ; the second, including a warranty against the prior claims of strangers also, of which the parties might be igno- rant, they might well stipulate for an indemnity only in lands of an equivalent value. The case ought to be a very strong one, which should authorize a Court to create, by implication, a restriction which the order of the language does not necessarily import or justify. It ought to be one in which no judicial doubt could exist of the real intention of the parties to create such a restriction. It cannot be pronounced that such is the present case." So in a very recent case in Massachusetts,^ the deed contained a covenant 1 Eastabrook v. Smith, 6 Gray, tended to other covenants therein, 572. " The question," said the Court, was discussed by Parker, J., in Sum- "how far and in what instances words ner v. Williams, 8 Mass. 214, and the of restriction and qualification an- adjudged cases have since been fully nexed to one covenant in a deed collected and compared in Sugden on conveying real estate are to be ex- Vendors, c. 14, § 3, Piatt on Cove- FOR TITLE MAY BE LIMITED OR QUALIFIED. 505 against all incumbrances except a certain mortgage, followed by a general covenant of warranty, and it was claimed for the defendant that the exception of the mortgage in the covenant against incumbrances extended to the covenant of warranty, but the Court conceived that as the two cove- nants were not connected covenants, of the same import and directed to one and the same object, the one was not quali- fied by the other. The defendant might well covenant to warrant against the eviction of the plaintiflF by the holder of the mortgage, though he could not covenant against all in- cumbrances without rendering himself forthwith liable to an action for nominal damages at least, for breach of such covenant. In the case of Nind v. Marshall,^ however, the covenants in the assignment of a leasehold were, that notwithstanding any act done by the seller, the lease was a valid one, and further, that the purchaser might peaceably enjoy without interruption from the seller, his executors, &c., or any other person or persons whomsoever having or lawfully claiming, any estate in the premises, and that free from incum- brances by the seller, concluding with a limited covenant for further assurance. Here, then, were three limited cov- enants, and one — the covenant for quiet enjoyment — un- limited, if it were to be construed as standing alone. The plaintifi' having been evicted by a title paramount to that of the defendant, it was strongly urged that this case was iden- tical 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 EUenborough was, therefore, directly applicable, and further, that a different construction would render inoperative the nants, u. 1 1 , § 7, and Eawle on Gov- merous decisions and the distinctions enants for Title, u. 1 0. It would between them." therefore be a superfluous labor in ' 1 Brod. & Bing. 319 ; S. C. 3 this case to comment on those nu- Moore, 702. 43 506 IMPLIED COVENANTS, AND HOW COVENANTS words, " or any other person or persons whomsoever." It was, however, held by the Court,^ that the case was distin- guishable from Howell v. Richards, which, it was said, pro- ceeded mainly upon the exception of a chief rent from the covenant against incumbrances, which, thereby, indicated that with that exception, the covenant was to be a general one ; but that in this case the covenant against incum- brances, which was unquestionably limited, was intimately connected with that for quiet enjoyment ; so much so, that there would be no use of superadding that no judgment suffered by the covenantor should operate to the cove- nantee's disturbance, if the covenant for quiet enjoyment were to stand absolute and unqualified, that no lawful claim whatever should operate to his disturbance. With respect to the generality of the expression, " all persons whomso- ever," " I think," said Dallas, Ch. J., " that those must be construed to mean persons of the description in the other covenants, that is, persons claiming under the covenantor, or persons claiming under them." But Park, J., in dis- senting from these opinions, correctly observed that the circumstance of the chief rent in Howell v. Richards, formed no ingredient in the judgment in that case; "it was not even hinted at, and was only mentioned by Lord Ellenborough in stating the record ; " and indeed, the distinction taken by that learned Judge (which Lord St. Leonards has observed to be a very just one), between the different natures of the covenants, seems not to have been observed in Nind v. Marshall.^ ^ Dallas, Ch. J., Eichardson and William, Richard, and Armistead, to Burrough, Js., (Park, J., dissenting.) his daughter Sophia, and to bis grand- 2 In the recent case in Virginia, son John, certain lands, and directed of Dickinson v. Hoomes's Admr., 8 that if any should die, -without issue Grattan, 353, the authority of Nind living at his death, his estate should V. Marshall was relied upon, but not be equally divided between the sur- sustained by the Court. A testator vivors. All these devisees survived had devised to each of his sons, John, the testator, and took possession of FOR TITLE MAY BE LIMITED OR QUALIFIED. 507 In attentively considering these two cases, their differ- ence seems to be this. In Howell v. Richards, it was by- no means clear that the covenantor did not mean the cove- nants 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 jn the opinion, that a covenantor might not the estates respectively devised to them. Soipe years after, John sold the estate devised to him, and Rich- ard and the other children of the testator joined in the covenants in the deed as follows : " And the said John Hoomes for himself and his heirs, and the said William, Richard, Armistead, and Wilson Allen, and Sophia his wife, for themselves and their heirs, as contingent devisees or legatees, under the will of Col. John Hoomes, deceased, by whom said land was devised to John Hoomes, do hereby covenant and agree to and with the said (purchaser) that they will warrant and defend the fee- simple estate and complete right and title to the said two tracts of land, to him, his heirs and assigns forever, against themselves and their heirs, and against the claim and demand of any person or persons claiming from, by or under them, in virtue of the will aforesaid, and do relinquish and fully confirm to the said (purchaser), all the right they or their heirs now have, or might or may hereafter have, to said land or any part thereof, to him and his heirs and assigns forever, free from the said John, William, Richard, Armistead, Wilson Allen and Sophia his wife, and their heirs, and of all other persons in the whole world." John, the vendor, and Wil- liam, his brother, subsequently died without issue, and Richard also died, leaving several children, who, claim- ing to be entitled under their grand- father's will to an undivided fourth of the land devised to John (the vendor) filed a bill for a partition which was sustained, (see Dickinson V. Hoomes, 1 Grattan, 302,) when the purchaser filed a bill to restrain these proceedings, on the ground of other estates having come by descent to the children of Richard, who, it was claimed, were liable on the cove- nants of their father. It was con- tended for the defendants that the covenant of warranty was obviously restricted to the claims of Richard, "as contingent devisee," only, and not in any other character, and that the expression, " of all other persons in the world," introduced at the end of the clause, could not enlarge the covenant. It was briefly held, how- ever, by the Court, that the covenant of the father did extend to the pres- ent claim of his children. In this case, the student must be careful not to mistake the dissenting opinion of Moncure, J., which is fifty-five pages long (pp. 383-438), for the opinion of the majority of the Court, which was delivered by Allen, J., (p. 438), and occupies but a single page, as the former opinion is printed first, immediately after the arguments of counsel. 508 feel safe in warranting- the absolute perfection of his title, though he would feel justified in warranting against the improbable consequences of a flaw in it. Here, then, the apparent intention of the covenantor, and the rule of law verba cartarum fortius accipiuntur contra proferentem, went together, and the two covenants were accordingly- held to be unlimited. But in Nind v. Marshall, if the intention of the covenantor had been that one of the cove- nants should be unlimited, as it might seem on the one hand to be from the use of the words " and all persons whomsoever," the direct words of connection with the other limited covenants would have to be disregarded ; while on the other hand, if the intention were that all the covenants should be limited to his own acts, the words " and all per- sons whomsoever," would either have to be disregarded, or receive a somewhat forced construction. There can be little doubt that the latter was the intention of the cove- nantor (or rather of his conveyancer), who, evidently, had not in his mind the train of reasoning noticed by Lord Ellenborough, and inadvertently did not express his inten- tion to limit all his covenants with sufficient distinctness as to one of them ; and in this dilemma the maxim referred to was not followed, and the intention of the covenantor was construed with much liberality.^ 1 Indeed, the rule of law which he intended that such should be the requires a strict construction put on case ; but as was said by Bayley, J., the words of the party using them, in Barton v. Fitzgerald, 15 East, is as to this subject seldom or never 546, " I admit that the words of a applied, except where the intention covenant may be restrained by other of the covenantor evidently harmo- words in the deed, if we can see a nizes with the rule, and its applica- clear intention to restrain them from tion is therefore useless. It is cer- the other parts of the deed. But it tainly hard on the one hand that the would be a very dangerous rule if it use of a certain form of expression were to be applied to every case should fasten upon a party a liability where ingenuity can show that by where there are other expressions giving the natural meaning to the which raise a doubt as to whether words of the general covenant, other FOR TITLE MAY BE LIMITED OR QUALIFIED. 509 In the recent case of Young- v. Ralncock,^ a house, which had been the property of one Ann Hopley, was, after her death, sold by her daughter, whose husband covenanted with the purchaser, that notwithstanding any act or default of him, his wife, or Ann Hopley, the grantors were seized — that notwithstanding any such act or default, they, or one of them, had good right to convey — that the covenantee should quietly enjoy without interruption from them or either of them, or any one claiming under Ann Hopley, and that the grantors, and every one claiming under them, or under Ann Hopley, should make further assurance upon reasonable request. It turned out that the daughter was illegitimate, and the purchaser was evicted by the rightful heir. It was clear that the only covenant upon which the plaintifi" 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 u. Fitzgerald, de- pended, as Lord St. Leonards says of it, on very particular circum- stances. In an assignment of a lease, reciting the lease to be for the term of ten years, there was a covenant that the vendor had done no act to incumber, except an underlease, " and also," that the lease was sub- sisting, and not void or voidable, together with limited covenants for quiet enjoyment and for further as- surance. It turned out, though there was no mention of it in the recital, that the lease was for ten years, if another should so long live, and, upon the death of the cestui que vie, the term expired, when the purchaser brought covenant. It was held by Lord Ellenborough, the other Judges concurring, that the second covenant was general and unlimited, 43* and could not be restrained by the limited ones. The opinions pro- ceeded mainly on the recital, which was, that the premises were demised for a term of ten years, and that by assignment in the following year, they had become vested in the then assignor for the remainder of the term. " Then, when he covenants," said Le Blanc, J., " that the lease is valid in law for the premises thereby assigned, is not that a covenant that it is a lease valid for the whole term for which it is before expressed that it had to run ? " and Lord Ellen- borough said, " If the rest of the covenants had imported a contrary intent to the general words then ap- pearing to have been improvidently introduced into one part of a deed, the case would have admitted of a different consideration." 1 7 Com. Bench, 310. 510 IMPLIED COVENANTS, AND HOW COVENANTS defendant, therefore, contended, on the authority of Brown- ing V. Wright and Nind v. Marshall, that the restrictive words must be drawn down from the first two covenants and embodied in the third ; but Coltman, J., who delivered the opinion of the Court, said : " It cannot be disputed that the general introductory words of one of the usual covenants for title may be drawn down in this way and applied to others in which they are not to be found, where, from what is found in other parts of the deed, it appears that such must have been the intention of the parties. But, admitting this principle, the question will remain, what rea- son there is for introducing into the present covenant, by implication, a restrictive clause which is not found in it. The covenant, read without the restrictive clause, seems to be a reasonable and usual one. The estate in question is recited to have been purchased by Mrs. Hopley, and is sold by one purporting to represent her as heir. On such a conveyance, it would be reasonable to expect that the estate should be cleared from any charges from Mrs. Hopley downwards to the present purchaser, and, accordingly, the covenant, as it stands, is a covenant for quiet enjoyment against any lawful let, &c., by Raincock and wife, or by any other person lawfully or equitably claiming from or under Raincock and wife, or either of them, or the said Ann Hopley. The covenant, as it stands, without the re- strictive words, is quite consistent with the covenant for further assurance, by which it is covenanted that Raincock and wife, and every other person claiming under them or either of them, or under Ann Hopley, shall make further assurance on every reasonable request. But, if the restric- tive words which it is sought to introduce into the covenant for quiet enjoyment, are to be considered as introduced into it, and have the effect contended for, — that the entry by Peter Hopley, not being occasioned by any act or default of FOR TITLE MAY BE LIMITED OR QUALIFIED. 511 Mrs. Hopley, is not a breach of the covenant for quiet en- joyment, — this inconsistency will result from it, that the covenant for quiet enjoyment will not extend to protect the purchaser from a disturbance by Peter Hopley but the covenant for further assurance will entitle the purchaser to a conveyance from Peter Hopley of his right to the estate, or in case of refusal, entitle him to maintain an action against the present defendant for such refusal." So, in the recent case of Crossfield v. Morrison ,•* where in the assignment of a lease from the plaintiff to the de- fendant, the latter covenanted that he would, during so long as he should be in possession of the rents and profits, pay to the original lessors the rent reserved, and perform the covenants contained in the lease from them to the plaintiff, and keep him harmless and indemnified of and from the rents and covenants. The breach assigned was that certain rents became due to the owners of the reversion, which the plaintiflf was obliged to pay, and the jury having found that the defendant was not in possession of the rents and profits at that time, the latter contended that the covenant to indem- nify was restricted to such time as he should be in posses- sion. But 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 be entered into by the purchaser to perform the covenants of the original lease, but the purchaser might make default in performing them, and it was therefore reasonable the plaintifi' should require from the defendant a covenant to indemnify him against any breach of those covenants. It was, therefore, held, that the covenant to indemnify was not restricted, and judgment was entered for the plaintifi' non obstante veredicto? 1 7 Com. Bench, 286. Cress. 185, on the dissolution of a 2 In Belcher v. Sikes, 8 Barn. & copartnership for supplying the navy 512 IMPLIED COVENANTS, AND HOW COA'ENANTS Second. But where the first covenant is general, a sub- sequent Hmited covenant will not restrain the generality of the preceding covenant,^ unless an express intention to do so appear, or unless the covenants be inconsistent. In the early case of Gainsforth v. Griffith,^ on an assign- ment of a lease, the vendor covenanted that it was a valid lease, and should so endure during the remainder of the term, which was followed by limited covenants for quiet enjoyment and against incumbrances ; and it was held that the generality of the preceding covenant was not restrained by the latter.^ So where, in Hesse v. Stevenson,* on an with provisions, it was covenanted by one of the partners, that notwith- standing any act done by him, it should be lawful for the other part- ner to receive the money, debts and premises thereby assigned, without any let, suit, interruption or denial of the assignor, his executors or admin- istrators, or any person claiming un- der him or them, and it was held that a receipt of money by the executor of the assignor was a breach of the covenant, the words of limitation be- ing inconsistent with the subsequent part of the covenant. 1 This was cited in the late case of Peters v. Grubb, 9 Harris, (21 Penn. State R.) 460. See supra, p. 301. 2 1 Saunders, 58. 3 Lord Eldon said of this case (in Browning v. Wright,) that the as- signor seemed to have said, " I not only covenant for the goodness of my title, but that you shall enjoy under that title, without any interruption from me." In the elaborately rea- soned case of Sumner v. Williams, 8 Mass. 162, the members of the Court differed as to the effect pro- duced by the insertion of a limited covenant against incumbrances be- tween preceding and subsequent un- limited covenants for seizin and of warranty ; Parker, J., being of opin- ion that the limited covenant quali- fied the others, which might be con- sldei-ed " as limited and restrained in their operation by the whole context of the deed." There were special circumstances connected with these covenants, which might tend to lead to this conclusion. They were made by .administrators, and although a majority of the Court held them personally liable on their covenants, yet the circumstance of their acting en autre droit, did certainly, as the learned Judge remarked, aid the con- struction. It was, however, said by Sewall, J., that " covenants respect- ing the seizin, the power to convey, and the general title, made without restriction, may well consist with a restrictive covenant against incum- brances. And taken together, the several covenants recited stand un- connected in sense and expression, and uncontrolled the one by the other.'' , 4 3 Bos. & Pull. 565. FOR TITLE MAY BE LIMITED OR QUALIFIED. 51S assignment of certain shares in a patent for paper making, there was a covenant of full power and authority to make the assignment, and that the covenantor had not done any- thing to forfeit any right or authority he ever had, &c., Lord Alvanley held, that unless it irresistibly appeared that the parties could not intend to make a general covenant, the Court ought not to indulge them in leaving out words which are ordinarily introduced, and hy which the real meaning of the parties might be plainly understood ; and as the words, " notwithstanding any act done by him," were omitted from the first covenant, the omission of these words was of itself decisive, as the attention of the purchaser was not called by any words to the intent of the vendor to confine his cove- nant to bis own acts,^ and it was well added, that the rule of construction in Browning v. Wright had never been carried to such a length as to decide that because some clauses are introduced into a deed which do not add to the security provided by the other clauses, the security so pro- vided is to be restrained.^ 1 It should, howeyer, be noticed of writing of the grantor, who was an this case, that there are many reasons attorney, at the end of the covenants, why the covenants in the assignment which were printed ; and it was urged of such a patent should be interpre- that the grantor intended by this ted with the greatest strictness against clause to restrain and qualify all his the party making them. prior covenants for title, and, there- 2 In the Attorney-General v. Pur- fore, fraudulently delivered the deed mort, 5 Paige, (N. Y.) 620, there was as containing a general warranty. a general warranty to the grantee But Walworth, Chan., said, "I think and his heirs, " and if he or they it very evident from the whole trans- shall be legally evicted, to pay the action, that the written clause was value of the premises with the ira- inserted in the deed by him for a provements at the time of such evic- different and much more honest pur- tion, with the legal and necessary pose. The printed blank used upon charges of defending the same, if hy that occasion was from a form which reason of any incumbrance of the I had myself prepared and had print- said party of the first part, his heirs ed, to be used only in special cases. or assigns." This deed was delivered And the concluding clause, making as a general warranty deed, the clause the grantor liable in case of eviction in italics being inserted in the hand- for the full value of the premises, 514 IMPLTED COVENANTS, AND HOW COVENANTS But in an early case in New York, the vendor cove- nanted that he was well seized of the premises, and had good right to convey them, to which was added a covenant of warranty " against all claims and demands whatever, except the lord of the soil," and it was held that these words expressly declared to the grantee that there was a lord of the soil, and it could not be supposed that the grantor could, in one line, covenant absolutely that he was seized, when he admitted, and it was so understood by both parties, that there was a lord of the soil, who, in the next covenant, was excepted from its operation. The exception was, it was said, manifestly intended to apply to both cov- enants.^ So, in Milner v. Horton,^ the first two covenants, viz., for good title and for right to convey, were unlimited ; the last two, for quiet enjoyment and against incumbrances, were limited to the acts of the covenantor, but the Court of Exchequer held that it was the intention of the cove- •with the improvements at the time of (cited supra, p. 41, as to another such eviction, without reference to point), after the description of the the amount of the consideration ex- premises, it was said, " the above is pressed in the conveyance, was not warranted from all claims and de- usually inserted in full covenant war- mands whatsoever, as far as the Con- ranty deeds. The defendant had a necticut and Susquehanna Company right to the written qualification of Purchase extends, and is regularly this extraordinary and unusual cove- made ; " then followed general cove- nant to the case of an eviction, on nants for seizin, of right to convey, account of an incumbrance created for quiet enjoyment, and of warranty, by himself. I am satisfied, therefore. The defendant pleaded that all the that he inserted the written clause estate of the Susquehanna Company for this purpose only, and not to came to, and was vested in the plain- qualify or alter the legal effect of tiff, which, on demurrer, was held the other covenants in the convey- bad, the Court being clearly of the ance." opinion that the general covenants 1 Cole u. Hawes, 2 Johns. Cases, were not restrained by the alleged 203. The student should be careful limitation as to the title of the Sus- not to rely too strongly on this case quehanna Company, in practice. 2 M'Clelland's R. 647. In Phelps i: Decker, 10 Mass. 267, FOR TITLE MAY BE LIMITED OR QUALIFIED. 515 nantors by the first two covenants to bind themselves that the vendees should have a good estate so far as rested in them, and therefore considered them as qualified by the subsequent covenants. But soon after, this case was overruled by the Court of 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 enjoyment, and for further assurance, and the Court said, that looking at all the cases which were cited for the defendants, there was only one (Milner V. Horton), where a general covenant had been held to be qualified in the manner here contended for, unless there ap- peared something to connect it with a restrictive covenant, or unless there were words in the covenant itself amount- ing to a qualification ; and it was further said that having considered Milner v. Horton again since the argument, the Court could not feel itself bound by its authority, and therefore concluded that the covenant declared upon, being unqualified in itself, and unconnected with any words in the qualified covenant, must, in a court of law, be considered as an absolute covenant for title.^ 1 3 Barn. & Adolph. 189. a special warranty was intended, it 2 So, in an early case in Pennsyl- shall be so construed, although the vania. Bender v. Fromberger, 4 Dal- deed in one part contains words of las, 440, which was decided three covenant of more general import, years after Hesse v. Stevenson, To this rule I add the two following though without referring to that ones : That in construing a deed, no case, Tilgliman, Ch. J., thus intro- part shall be rejected unless it pro- duced the statement of the covenants duces contradiction or absurdity, and contained in the deed : " I subscribe that in doubtful cases, a deed is to be to the principle laid down by Lord construed in favor of the grantee. Eldon in the case of Browning v. The deed in question contains a con- Wright, cited on the part of the de- veyance by the words grant, har- fendant, that where it manifestly ap- gain and sell ; a covenant that the pears from a consideration of every grantor is seized of a good estate in part of the deed, that no more than fee-simple, subject to no incum- 516 IMPLIED COVENANTS, AND HOW COVENANTS So, in a recent case in Massachusetts, a vendor cove- nanted that he was lawfully seized in fee of the premises, brances but a certain ground-rent, and a covenant of special warranty. " It has been the prevailing opin- ion, that by virtue of an Act of As- sembly passed in the year 1715, the words grant, bargain and sell, have the force of a general warranty, un- less restrained by subsequent expres- sions. To qualify the general war- ranty, it has been the custom of scriv- eners to insert a clause of special warranty. And I believe it is in- serted pretty much as a matter of course, unless in cases where the par- ties agree on a general warranty. . . The defendant contends that his in- tent was to give no more than a spe- cial warranty, because the clause of special warranty is inconsistent with, and contradictory to a general war- ranty. Now, in this, I cannot agree with him. It is certain that the spe- cial warranty, and more, is included in the general one. It is an inaccu- rate mode of conveyancing ; but there is no absurdity or contradic- tion, in making one covenant against yourself and your heirs, and another against all mankind. The special warranty was unnecessary, and it is to be attributed to the ignorance of the scrivener, who probably thought it was a matter of course, without Intending to affect the more general preceding covenant; or perhaps he might think it necessary to guard against the effect of the words, grant, bargain and sell, used in the first part of the deed, because the estate was subject to a ground-rent, as ap- pears from the general covenant, in which it is said that the estate is free from all incumbrances except the said ground-rent. It has been urged, that it is all one covenant, because the special warranty is connected with the preceding general covenant, by the words and that. It is very common to connect a covenant of warranty and a covenant for further assurance by these expressions. But what I may rely on, is the intent of the parties manifested in the deed considered altogether. I do not con- ceive it is possible for a man of com- mon sense to declare that he en- gages that he had a perfect estate in fee-simple, and had a good right to convey such perfect estate, without intending to warrant to a greater ex- tent, than against himself and his heirs. These are no technical expres- sions, but such as every man under- stands, which is not the case with a special warranty. To a common man, it is not very intelligible that there should ever be occasion to war- rant and defend against himself and all persons claiming under him, for it is very natural to suppose, that when a man has used words sufficient to convey his estate to a third person, he has necessarily done enough to bar himself and all persons claiming under him, without calling in the aid of a special warranty. In short, the insertion of the clause of spe- cial warranty is generally the act of scrivenei-s ; but I presume, that no scrivener could be so stupid as to in- sert a covenant that ' the grantor was seized of an indefeasible estate in fee,' unless he had been told by the parties that a general warranty FOR TITLE MAY BE LIMITED OR QUALIFIED, 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 incum- brances, and he would warrant and defend it against the lawful claims of all persons.^ " It was contended by the defendant's counsel," said the Court, " that the covenant of seizin was to be considered as limited in the same manner as the other covenants. If the parties had so intended, they would have so expressed their intention in the restrict- ing clause. We cannot add to the language, unless it can be made clearly to appear that a word was omitted by mere mistake. Nothing of this kind appears in any part of the deed, but quite to the contrary ; for if the intention of the parties was to limit all the covenants alike, it would, un- doubtedly, have been so expressed. There was a good reason, probably, why a distinction was made between the covenant of seizin and the other covenant ; for if the plain- tiff should have been evicted by a paramount title, it would have been a breach of the covenant of warranty and against incumbrances ; a paramount title being an incum- brance. But such a title does not affect the covenant of seizin.^ Most decidedly, therefore, the construction of the deed contended for by defendant's counsel on this point, cannot be maintained." ^ was intended. I am, therefore, of to in Hesse v. Stevenson and Smith opinion that the special warranty in v. Compton. this deed has not the effect of con- l Cornell v. Jackson, 3 Gushing, trolling the precedent general cov- (Mass.) 506. enant." Although the decision in 2 Xhis expression refers to a pecu- this case is no longer law, as applied liar view taken of the covenant for to the statute to which it refers (it seizin in some of the Northern States, having been soon after held that the which has been explained supra, ■p. covenants implied by it were all lim- 20 et seq. ited, and none of them general cove- 3 Jn the very recent case in the nants), yet it explains very clearly Exchequer, of Rigby v. The Great the general rule which was referred Western Railway Company, 4 Exch. 44 518 IMPLIED COVENANTS, AND HOW COVENANTS Third. As, on the one hand, a subsequent limited cove- nant does not restrain a preceding general covenant, so on 220, the latter leased to the former certain refreshment rooms, with a covenant (inter alia) that certain trains should stop there at certain times. The Messrs. Rigby leased the rooms to Griffith, and covenanted that they would, during the continu- ance of the term, do all such acts as should be necessary and proper for enforcing the fulfilment and perform- ance of the covenants, as fully as if the latter were the assignee of them, and that it should be lawful for him to commence, in their name, any ac- tion or other proceeding for enforcing their fulfilment and performance, or for recovering damages for their non- performance, Griffith indemnifying them from all costs and expenses to be incurred in such action or other proceeding. Some time after this, by order of the Comjiany, certain trains passed without stopping at the rooms, whereby Griffith sustained a loss, of which he notified the Messrs. Kigby, and requested them to file a bill in their own name, and at their own cost, to enjoin the Company from directing the trains to pass the refreshment rooms without stopping ; and it was held in a case sent to the E.xchequer by the Chancellor, that, assuming the filing such bill to be " a necessary and proper act," the Messrs. Rigby were bound to do so, and that the latter stipulation, empowering Griffith to sue in his name, and at his own cost, did not limit or qualify the general covenant. " It is con- tended on the part of the plaintiff," said Baron Parke, who delivered the judgment of the Court, " that the latter stipulation provides for all cases of action and suits ; and that if at any time an . action or suit be ' necessary and proper,' in order to enforce the recited covenant, it must be brought by Mr. Griffith in the name of the Messrs. Rigby, and at his own expense ; and that, as the latter stipvilation amounted to a power of attorney to sue in the name of the Messrs. Rigby, so that Griffith himself could sue, it could not be necessary for Messrs. Rigby to do so themselves. We are all of opinion that these arguments are unfounded. The first part of the covenant is gen- eral, and extends to all necessary and proper acts for the purposes mentioned, whatever they may be, and includes a bill in equity when that act is necessary and proper. The latter part contains no express qualification or limitation of the cov- enant ; nor is there any implied one, which there would be if the two parts were inconsistent with each other. They are not so ; but full effect may be given to every part without alter- ing or modifying either. The second part is in effect a power to sue, and no more. It is expressly given as an additional benefit to Mr. Griffith, by the words 'and also it shall be lawful.' It extends to all suits, whether they are ' necessary and proper ' or not ; whereas the gen- eral covenant is confined to those, so that Griffith has an unlimited power of using the names of the plaintiSs in any suit whatsoever. Even if this authority had been confined to ' nec- essary and proper suits,' it would not FOR TITLE MAY BE LIMITED OR QUALIFIED. 5\Q the other hand, a preceding general covenant will not en- large a subsequent limited covenant. In an early case,^ one seized of an estate under a grant from the Crown, in conveying it to a purchaser, recited the letters-patent and the conveyances from thence down to him- self, and covenanted that he was seized in fee, that he had good power to convey, and that there was no reversion in the Crown, notwithstanding any act done by him. The Court below held that these last words restrained the generality of the first two covenants ; but this was reversed on writ of error,^ and it was held that the restrictive words did not extend to the preceding covenants, " and the only ground on which I supposed the Court to have proceeded," said Lord Eldon, in speaking of the case, in Browning v. Wright, " is this, that they considered it to have been the intention of the parties that the vendor should enter into an absolute covenant for his seizin in fee, in all cases but one, namely, that he should not be liable on the objection of a reversion existing in the Crown,^ unless that reversion appeared to have been vested in the Crown by his own acts." Fourth. Where the covenants are of divers natures, and concern different things, restrictive words added to one shall not control the generality of others, though they all relate to the same land. Thus, in Crayford v. Crayford,* where a vendor cove- have been inconsistent, because it is l Trenchard v. Hoskins, Winch, an advantage to a party to have the 91 ; S. C. Littleton's R. 62, 65, 203. power of conducting a suit himself, 2 gee 1 Siderfin, 328, and 1 Saun- instead of relying on the covenant ders, 60. of another party to conduct it; and 3 "In grants of land by the Crown,'' lastly, the latter stipulation applies to says Lord St. Leonards, 2 Sugden on all covenant'! in the lease, the general Vendors, 535, " it is usual to reserve covenant applying only to the recited a reversion, which the grantee can- covenants, as to stopping at the sta- not bar." tion, &c." * Cro. Car. 106. 520 IMPLIED COVENANTS, AND HOW COVENANTS nanted that he was seized in fee, notwithstanding any act done by him or his ancestors ; that there was no reversion in the Crown ; that the estate was of a certain annual value, and that the plaintiff should enjoy the same discharged from all incumbrances made by him or his ancestors, it was held that " the covenant for value was an absolute and dis- tinct covenant, and had no dependence upon the first part of the covenant ; " and in a subsequent similar case ^ the con- struction was the same. The cases which have thus been cited will give some idea of the difficulties which present themselves, where, under a highly artificial and refined system of conveyancing, the occasional unskilfulness of the draughtsman has caused lim- ited and unlimited covenants for title to come, as it were, into collision with each other. The comparative absence of American authority on this subject must have been observed by the reader. It is owing to two causes. In the first place, a very cursory examination of American reports will show, what has been frequently referred to, that the niceties of English conveyancing (which are in no respect carried to a greater extent than in the covenants for title), were neither brought by our forefathers to this country, nor adopted by their descendants. These covenants were gen- erally, or frequently inserted in the most primitive manner, and very often, as is the case at the present day, the only 1 Huglies?;. Bennet, Cro. Car. 495; yearly value of £1,000, but it was S. C.W.Jones, 403. In Rich w. Rich, adjudged against the plaintiff; for Cro. Eliz. 43, however. Lord Rich the words ' notwithstanding any act ' Covenanted that certain lands con- extend as well to the time of the veyed to the plaintiff for her jointure covenant made, as to the time future, were of the yearly value of £1,000, and though they were not then of and should so continue, notwithstand- that value, the covenant was not ing any act done or to be done by broken, except some act done by him, " and the action was brought him was the cause of it." for that the lands were not of the FOR TITLE MAY BE LIMITED OR QUALIFIED. 521 express covenant employed was that of warranty. Hence there was little room for the complexities which attend the introduction of many and elaborate covenants. In the second place, in many of the States, some or all of these covenants have been implied by statutory enactment from the use of certain words employed to pass the estate, and all the covenants, when thus implied, have generally been cast in the same mould, so that there was no distinction between them as to one being more general or more limited than another. Sometimes, from the inadvertent penning 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 to.' Covenants for title may also be limited and restrained by any express agreement in the instrument which contains them. Thus, although in an old case,^ it was urged that the agreement was a remote one at the end of the deed, and far distant from the covenants, it was nevertheless held to qualify them. So where there is a cotemporaneous sealed agreement, as in a late case in Texas,^ where the deed con- tained a general covenant of warranty, and the condition of a bond executed at the same time was that if the land should be recovered by any one claiming the same within three years thereafter, the purchaser was to recover back the amount he had paid the vendor, the Court held that the bond was merely a limitation of the amount of damages to be recovered by the vendee in case of eviction within the three years,* and that after the expiration of that time the • /n/ra, p. 537 e< se J. warrantor for more than the pur- S Brown v. Brown, 1 Levinz, 57; chase-money without interest, where- S. C. 1 Keble, 234. as the general warranty would hold 3 Black V. Barton, 13 Texas, 82. him liable for the purchase-money * That is to say, " in that event and interest." there should be no claim upon the 44* 522 IMPLIED COVENANTS, AND HOW COVENANTS general warranty was in force for the full amount which might be recoverable at law. It would also seem that whatever may be the rule which prohibits the interpretation of written instruments by the introduction of parol evidence, equity will receive such evidence when corroborated by other circumstances, in granting relief, where covenants for title have been entered into contrary to the intention of the parties.^ Thus in the early case of Coldcot v. Hill,^ Dr. Coldcot having purchased church lands in fee under the title of Cromwell, sold them to the defendant's testator with gen- eral covenants for the title. Upon the Restoration, the estate was avoided, and the defendant, in an action on the covenants, recovered back his purchase-money, upon which the vendor filed a bill to enjoin the collection of the judg- ment, " which did suggest a surprise upon the plaintiff in getting him into that covenant, and that it was declared by Dr. Coldcot, when he sealed, and the defendant's testator, that it was intended Dr. Coldcot should not undertake any further than against himself ; and there being proof of this,^ the purchaser was decreed to enter satisfaction on the judg- ment, and pay costs.* A few years after this decision,^ a bill was filed to en- 1 See as to this, supra, p. 1 29. is intended lawfully. But some proof 2 1 Cases in Chancery, 15 ; S. C. being that it was declared upon seal- Freeman, 173. ing, that the plaintiff should under- 3 " Upon the hearing, it was proved take for his own act only, it was that the matter of the covenant upon decreed that the defendant should which the judgment was had against acknowledge satisfaction on the judg- the plaintiff was controverted in the ment and pay costs." paper draught, and put out by the * The report also says, that a like plaintiff's counsel, and in again by case to this between Farrar and Far- the defendant's counsel, with the al- rer was heard and decreed after the ^ration only that whereas the cove- same manner, about sl."i months be- nant was that the plaintiff was law- fore. fully seized, &c., the plaintiff's coun- 5 Fielder v. Studley, Hep. Temp, sel put out (lawfully) , which signified Finch, 90. nothing ; for to covenant one is seized, FOR TITLE MAY BE LIMITED OR QUALIFIED. 523 join a judgment obtained upon a general covenant that the grantor had lawful power to convey, "which being contrary to tlie true intent and meaning of the said parties, and it appearing so in the conveyance, where the rest of the cove- 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,^ .... the Court decreed that the general words in this covenant ought not to oblige the plaintiff"; being contradicted by all the subsequent covenants, and the plaintiff' selling only such an estate which he had," and the defendant was therefore enjoined from proceeding upon his judgment.^ Nothing is better settled as a general rule in the con- struction of deeds, than that in case of a discrepancy in the 1 " And never took any advantage or questioned the plaintiff in any of the covenants in the deed, but con- tinued In the possession, and received the profits thereof for ten years and upwards, and after the Restoration, he or his son took a new lease of the Dean and Chapter of Sarum for three lives, and had a considerable abate- ment of the fine, in respect of the purchase made by the plaintiff'." 2 "This last case," says Lord St. Leonards * (1 Sugden on Vendors, 263), " was quoted in a, case in the Common Pleas before Lord Eldon (Browning v. Wright, 2 Bos. & Pull. 26), who thought the decision must have been made on the ground of the intent of the parties appearing on the instrument, since that intent, and the consequent legal effect of the instrument, could only be col- lected from the instrument itself, and not from anything dehors. In a still later case in the same court, (Hesse V. Stevenson, 3 Bos. & Pull. 575,) Lord Alvanley thought, under the circumstances of the case, that the application was made to the Court of Chancery to correct the mistake, in the same manner as applications are made to that court to correct marriage articles, where clauses are inserted contrary to the intent of the parties. It seems clear, however, that the relief in this case was founded on parol evidence that the vendor sold only such estate as he had, corrobo- rated as it was by the form of the deed and the subject of the contract. Such evidence was received in the prior case of Dr. Coldcot and Ser- jeant Hide, and is still clearly admis- sible." 524< IMPLIED COVENANTS, AND HOW COVENANTS description of the premises between the distances and the boundaries, the former are to be controlled by the latter, on the ground that the lesser must yield to the greater certainty.^ And where land is conveyed by a particular description, and with an enumeration of the quantity of acres, the latter is held to be matter of description merely, and cannot be deemed an implied covenant for quantity.^ As, therefore, the descriptive boundaries control the quan- tity, it has been 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,^ where the defendant was sued upon a cove- nant for seizin contained in a conveyance of one hundred and ten acres of land, with certain boundaries, it appeared that the title was good to all the land within the boundaries, but that there were only ninety acres ; and the Court held that the deed granted nothing but the lands lying within the bounds described, and gave judgment for the defend- ant ; and in a numerous class of cases the same principle has been recognized.* Of course, however, this rule will not apply where, on the face of the instrument, it appears 1 Howe u. Bass, 2 Mass. 380 ; Pow- Whallon v. Kauffman, 19 Id. 101; ell V. Clarke, 5 Id. 355 ; Jackson «. Davis u. Atkins, 9 Gushing, (Mass.) Defendorf, 1 Caines, 493; Jackson w. 13; Roat v. Puff, 3 Barb. S. C. Barringer, 15 Johns. 471 ; Jackson K. (N. Y.) 353, (where most of the M'Connell, 19 Wendell, 175; Smith cases' are collected) ; Belden v. Sey- V. Evans, 6 Binney, 107 ; Petts v. mour, 8 Connect. 19, (Bissell, J., dis- Gaw, 3 Harris, (15 Penn. State R.) senting); Rickets v. Dickens, 1 Mur- 222 ; Kruse v. Scripps, 11 Illinois, phey, (N. Car.) 243 ; Huntley e. 103. Waddell, 12 Iredell, (N. Car.) 33; 2 Perkins v. Webster, 2 N. Hamp. Bauskett v. Jones, 2 Spears, (S. Car.) 287; Large w. Penn, 6 Serg.& Rawle, 68; Lorick v. Hawkins, 1 Richard- (Pa.) 488 ; Whitehill v. Gotwalt, 3 son, (S. Car.) 417; Tucker v. Cocke, Penn. 327, overruling Christine v. 2 Randolph, (Va.) 51, (overruling Whitehill, 16 Serg. & Rawle, 112. Quesnell v. Woodlief, 2 Hen. & 3 Snow I'. Chapman, 1 Root, (Cou- Munf. 173); Ferguson v. Dent 8 nect.) 528. Missouri, 667. * Mann v. Pearson, 4 Johns. 41 ; FOR TITLE MAY BE LIMITED OR QUALIFIED, 50,5 that the covenants were directly intended to assure a partic- ular quantity to the purchaser.^ These classes of cases obviously proceed upon the ground that the covenants for title apply to what is conceived to be the subject-matter of the conveyance, according to the in- tention of the parties, and it has been carried so far, that it has been held in many cases, that where the conveyance is of a limited estate or interest, gentjral covenants for title will be restrained by the extent of that interest.^ Thus, in 1 Thus, in the recent case of Mor- ris V. Owens, 3 Strobhart, (S. Car.) 199, the release was of " all that plan- tation or parcel off land situate in said district, on the waters of Jackson's Branch, near Coden's Mills, adjoin- ing lands of Joseph Allen, estate of K. Goode, Elizabeth Thomas and others. Said lands were granted to John A. Owens, the 5th day of De- cember, 1825, for two hundred and seventy acres, but a part thereof is claimed by the estate of Robert Goode ; the said W. A. Owens, only conveys two hundred acres ; that part claimed by the estate of Goode is not conveyed ; and if it should be found that there is more than two hundred acres, besides that claimed by Goode's estate, the said John R. Morris is to be entitled to it, together with all and singular," &c. And it was held, after a review of the authorities, (O'Neall, J., dissenting,) that the covenant of general warranty which the deed contained was broken by there being but one hundred and forty-two acres, exclusive of the part claimed by Goode's estate. " The declaration,'' said Wardlaw, J., who delivered the opinion, " that the grantor conveys only two hundred acres, is equivalent to a declaration that he does convey two hundred acres ; the reference to the claim of Goode, as a thing whose extent is to be found coupled with the convey- ance of two hundred acres, is a rep- resentation that at least two hundred acres will remain after satisfaction of that claim ; and the provision for the grantee's right, in case that more than two hundred acres should re- main, with entire silence as to the case of less remaining, and the omis- sion of the words ' more or less,' or any words expressive of uncertainty, show that quantity was in the contempla- tion of the parties, and that the num- ber of acres was an essential part of the contract, and not a mere circum- stance added to a description already precise. The intention from the whole appears to have been to cre- ate a stipulation that the part con- veyed should be at least two hun- dred acres.'' To the same effect are the recent cases of Steiner v. Baughman, 2 Jones, (12 Penn. State R.) 106, and Pecare y. Chouteau, 13 Missouri, 527. 3 One instance in which general covenants for title are limited by the estate conveyed, has already been noticed (supra, p. 457), viz : that in case of a reconveyance to the vendor, 526 IMPLIED COVENANTS, AND HOW COVENANTS the old case pf Clanrickard v. 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 the conveyance by further assurance and for well enjoying that which was conveyed, and it was held that the covenants could not be taken to assure a greater estate than the third part thus conveyed, during the life of the grantor.^ So, in an early case in New York,^ where a lessee assigned the lease " in as ample a manner to all intents and purposes as I might or could hold or enjoy the same, and I covenant with the said P. K. that I have good and lawful right to bargain and transfer the said premises, as is above written, and that the same are clear of all arrearages* of rent and other incumbrances," it was held that the words, " as is above written," quahfied the covenants, and that it could not be supposed that the assignor meant to warrant his land- lord's title. So, in a case in Massachusetts, where the con- veyance was of all the grantor's " right, title and interest in and to the undivided estate devised," it was held that a general warranty which the deed contained, was limited to be an assurance of that particular estate only, and, therefore could not be held to operate by way of estoppel, in passing an after-acquired estate.* So, in a subsequent case in the the purchaser's general covenants are whereunto they are said to be but nevertheless limited to defects or in- handmaids." See also, supra, p. 437. cumbrances erected by himself, and 3 Knickerbacker v. Killmore, 9 not to those of the vendor or any one Johns. 106; and see Calvert v. Se- prior to him in the chain of title ; bright, 15 Beavan, 156 ; S. C. 15 Kellog V. Wood, 4 Paige, (N. Y.) Eng. Law & Eq. R. 125, cited infra, 614 ; Cole t'. Lee, 30 Maine, 392. p. 532. 1 I-Iobart, 273. ■» Blanchard v. Brooks, 12 Picker- 2 '• The office of these covenants, ing, (Mass.) 67 ; see the language of ■when they follow in express grant, the Court, cited supra, p. 419. So, is not to give anything, but to assist, in the late case in Kentucky, of further and support, being as a wall Grimes v. Redmon, 14 B. Monroe, or monument about it, and therefore 236, where there was an exchange cannot be understood to exceed that of laud, the Court said, " Althouo-h FOR TITLE MAY BE LIMITED OR QUALIFIED. 5^7 same State, the conveyance was of " all my right, title and interest in and to Tiffany's Ferry, and the boat which I built the last season, and now use in carrying on the f'efry, and all the estate, land and buildings standing thereon, sit- uate and being in Northfield, as the same is now occupied and improved by me, and I do covenant that I am the law- ful owner and possessor of the before-granted premises, and have in me good right, &c., to give, grant and confirm the same," followed by a general warranty of " the before- it is true that the deed of Bates con- tains a warranty purporting to bind his heirs, and which, to the extent of the value of any heritage descended from him to them, would bar them from recovering merely on the ground that a better title than that which passed by his deed had descended to them from another ancestor, yet as this deed shows explicitly that it is made in consequence and in consid- eration of an exchange of lands, of which it is a part, and in fact the consummation, as it is not only the implied law of such a transaction, but upon comparison of the reciprocal deeds by which it was consummated, and which must be taken together as one transaction, it is found to be the express law of this particular trans- action that if either party shall lose by a better claim the land which he has received in exchange, he becomes thereby immediately entitled to the land which he has given in exchange ; and as by the implied law of an ex- change, the party thus losing may immediately enter upon the land given in exchange for it, while 'by the express stipulations of these par- ties he who has not lost is bound to restore and re-convey the land which he has received, to the party who has lost, quantity for quantity, we per- ceive at once that the general war- ranty contained in each deed is qual- ified an d restricted, both by the n a ture of the transaction as an exchange, and by the express stipulation of the other deed, so as to make the lawful eviction of either party from the land received by him an exception to the general terms of the warranty, and thus to free him in such case from the estop- pel which might otherwise prevent him from reclaiming the land which he had conveyed with warranty." In Hurd v. Gushing, 7 Pickering, (Mass.) 169, where a tenant for life conveyed " all his right, title and in- terest" in the land with a covenant that he was seized in fee, it was held that only the life estate passed, for the covenant could not enlarge the estate (Seymor's case, 10 Coke, 97, and see supra, p. 437.) So, where in Corbin v. Healy , 20 Pickering,(Mass.) 514, one granted land to his daugh- ter " and the heirs of her body, to have and hold the same to her and her heirs forever," and covenanted to warrant and defend the same to her and her heirs, it was held that neither the habendum nor the war- ranty could make the estate other than an estate tail. 528 IMPLIED COVENANTS, AND HOW COVENANTS granted premises." The grantor in this conveyance being offered as a witness in support of the title in favor of an alienee, was objected to, on the ground of his liability on these covenants, but the Court held that the covenant was restrained by the previous context of the deed, and conse- quently, that the witness was competent.^ So, in a more 1 Allen V. Holton, 20 Pickering, (Mass.) 463. " The objection would be well maintained," said Wilde, J., who delivered the opinion of the Court, " if a literal construction of the covenant of warranty could be allowed without reference to the other parts of the deed. But every deed is to be construed according to the intention of the parties, as mani- fested by the entire instrument, al- though it may not comport with the language of a particular part of it. Thus a recital or a preamble in a deed may qualify the generality of the words of a covenant or other parts of a deed. 4 Cruise's Dig. tit. 32, Deed, c. 23, § 8. The case of Moore v. Magrath, Cow- per, 9, is a strong case to show to what extent a Court may go in quali- fying and even in rejecting a particu- lar clause in a deed, in order to effec- tuate the intention of the parties. In that case, the lands intended to be granted by a deed of settlement, were particularly named in the pre- amble, and were afterwards minutely described in the premises, and then followed a sweeping clause purport- ing to convey, ' all other the donor's land, tenements, and hereditaments in Ireland.' And the Court held that nothing passed by this sweeping clause ; the Court being of opinion, from the words of the preamble, that the donor did not intend to include his paternal estate (which was situ- ate in a different county from those in which the lands intended to be conveyed lyere situate,) and that it was more than probable, that the drawer, by mistake, omitted some words in the sweeping clause. What- ever may be thought of the intention of the parties in that case, we think the intention as to the extent of the grant in the present case, is suffi- ciently plain. The grantor conveys his own title only, and all the subse- quent covenants have reference to the grant, and are qualified and limited by it. That this was the intention of the parties cannot, we think, be reasonably doubted, and the words of the covenants are to be so construed as to efl'ectuate that in- tention." So, where the obvious meaning of the covenants renders it necessary, Courts will construe one word to mean another, as is constantly done in wills, as where, in Sanders ». Belts, 7 Wendell, (N. Y.) 287, the party of the first part in a deed covenanted to warrant and defend the premises from all persons claiming " by, from or under him, the said party of the second part," the plaintiff urged that all these words must be rejected as bemg repugnant to the preceding matter. But the Court held that second had been inadvertently used instead of jfirst, and construed the covenant as being a limited one only. FOR TITLE MAY BE LIMITED OR QUALIFIED. 529 recent case, where the grant was of " all my right, title and interest in and to that parcel of real estate situate in Green Street, in Marblehead, and is bounded," &c., followed by unlimited covenants for seizin, good right to convey, against incumbrances, and of warranty, it was held that these cov- enants were limited merely to the right and title of the grantor, whatever that might be.^ It may, however, be observed, that inasmuch as all con- veyances taking effect under the statute of uses transfer no more than the estate of the party, such a course of decision, if strictly carried out, would seem to restrain all general covenants for title, in such conveyances, to the acts of the vendor. This, however, would of course render such cov- enants comparatively useless at the present day, and it is conceived that the class of authorities referred to should therefore be limited, in their application, to cases where the intention to convey and receive but a limited estate, most plainly and irresistibly appears on the face of the instru- 1 Sweet V. Brown, 12 Metcalf, and the cases of Blanchard w. Brooks (Mass.) 1 75. " The warranty is of and Allen v. Holton, supra, were thea the premises which were granted and cited and approved, conveyed by the deed. But that was Wymau v. Harman's Devisees, 5 'all my right, title and interest in Grattan, (Va.) 157, was a very clear and to that parcel of real estate situ- case. The conveyance was of " all ate,' etc. It was not a grant of cer- claims in and to the Curran Place, tain land, in general terms, but of his which was conveyed to Curran by title and interest in such land, and Daniel Harman, senior," and the this, particularly and fully expressed, covenant was " the said Harman and The warranty must be taken in a wife, for themselves and their heirs, limited sense. It must be restricted the said right as it was invested in to his title and interest. The cove- Daniel Harman, to the said John and nant here attaches to the estate and his heirs, against themselves and their interest conveyed, and is not a gen- heirs will warrant and defend ; it is eral covenant of warranty of the fully understood if said title should whole parcel, particularly described prove insufficient in law or equity, by metes and bounds. Such con- the said Wyman and heirs is to have struction will reconcile all parts of no* recourse, he knowing the whole the deed, and give eifeet to each," circumstance." 43 5S0 IMPLIED COVENANTS, AND HOW COVENANTS ment.^ And in a very recent case in Massachusetts, where the conveyance was of " the following described water lots," and, appended to the description by metes and bounds, these words, " meaning and intending by this deed to convey all my right, title and interest in and to lots numbered three and six, and my undivided portion of the aforementioned flats," it was held that the general covenants for title which the deed contained were not restricted merely to the interest of the grantor.^ So in a late case in Vermont, where the 1 See and consider Jackson v. Hoffman, 9 Cowen, (N. Y.) 271. That case decided that where a deed contained a recital of the premises being incumbered by a mortgage, fol- lowed by unlimited covenants, the mortgage was excepted from their operation. Such a doctrine seems very questionable (see Keith v. Day, 15 Verm. 660, and supra, p. 128,) and it is always in the power of the vendor to except the mortgage from the operation of the covenants, as in Potter V. Taylor, 6 Verm. 676, where, after a covenant against incumbran- ces there was inserted, " except the amount of a mortgage held by B. E., on which is due about eighteen tons of hay," and it was held that the covenant was broken only as to any excess there might be due over the eighteen tons. 2 Hubbard et al. v. Althorp, 3 Gushing, (Mass.) 419. " The effect of covenants of warranty," said Dew- ey, J., who delivered the opinion, " attached to a conveyance merely of the right, title and interest of the grantor, was somewhat considered in the cases of Blanchard v. Brooks, 12 Pickering, 47, and Allen v. Holton, 20 Id. 458 ; and the cases cited for the plaintiffs do, to some extent, sanction the views contended for by their counsel as to the limitation of the covenants in such cases. It seems to us, however, that it is unnecessary to consider particularly the effect of a covenant of warranty in a deed, where the only thing described in the premises as the subject of the grant, is ' the right, title and inter- est ' ■ of the grantor, as was the case of Allen V. Holton, above cited. The construction of a deed is to be such, if possible, as to give effect to the in- tention of the parties, and therefore where it is a mere conveyance ' of all the title of the grantor,' it may be held that the covenants have no ap- plication beyond the words of the grant itself But the present deed is one purporting to convey by partic- ular and definite boundaries, various tracts of land described in the prem- ises of the deed, adding, however, to the description of the lands, the words ' meaning and intending by this deed to convey all my right, title and interest in and to lots numbered three and six, &c., and my undivided portion of the aforementioned flats ; ' — ' the same being subject to each and all the conditions, covenants and FOK TITLE MAY BE LIMITED OR QUALIFIED. 531 grant was of " the following described land in Colchester, all the land which I own by virtue of a deed, &c., being all my right and title to the land comprising fifty acres oif of the east of lot No. 7-5 in said town," it was held that the covenants were not qualified by the grantor's interest.-^ So restrictions contained in the deed of Jabez Hatch, J. P. Davis, and the division deed.' As it seems to us, this second description was added rather for fulness and certainty, than with the view of any limitations as to the tracts of land conveyed ; the first description setting forth lots numbered three and six, and the parcel of flats by their boundaries ; and the second being adapted to em- brace all the interest of the grantor in lots numbered three and six, and the flats, however bounded. There might have been also the further purpose of introducing the limitation upon the conveyance, of the condi- tions and restrictions contained in the deeds therein referred to ; which restrictions or conditions do not, however, affect the question, whether the covenants are applicable solely to the actual title of the grantor. It is true, as was suggested by the coun- sel for the plaintiff, that explanatory words may restrain the general words, and limit their effect. But it must clearly appear, that such was the purpose intended by them. If the explanatory words are consistent with the general words, and not apparent- ly restricted, but added rather for greater caution, and to guard against any misrecital, we give effect to the general description, rather than to the explanatory words if there be any discrepancy, and the general description be perfect in itself, and easily susceptible of a practical ap- plication." In Whiting u. Dewey, 15 Pickering, (Mass.) 434, it seems to have been thought that if the words " being all the same lands which the said Bene- dict Dewey, deceased, lately owned," had been the only words of descrip- tion used, they would have limited the general covenants which followed, but as the premises were, in the grant,'particularly described by metes and bounds, the description was held not to limit the covenants. 1 Mills V. Catlin, 22 Vermont, 98. " Upon the principle that the con- struction is to be upon the entire deed, and that one part is to help expound another, and that every word, if pos- sible, is to have effect and none be rejected, and all the parts thereof agree and stand together, we think it must be held to have been the in- tention of the parties to grant the land, and that the habendum in the deed is to hold the land, and the cov- enants are, as they import to be, un- limited, and relate to the land and insure title to it- But if, after all, we consider the intention of the par- ties ambiguous, the rule would be in- terposed that the construction in such case is to be most strongly against the grantor and in favor of the grantee, and this to prevent an eva- sion by the grantor by his use of ob- scure and equivocal words." So in Steiner v. Baughman, 2 Jones, (12 583. IMPLIED COVENANTS, AND HOW COVENANTS in a very recent case in England,^ on a reference to a Mas- ter, it appeared that a testator, " as far as in his power lay, or he lawfully might or could," demised part of certain premises as to which he had a power of leasing for three lives, and covenanted for quiet enjoyment, during the three lives without interruption by himself or his heirs, or any one claiming under him. There had, however, been a prior appointment, and, after the testator's death, the lessee was evicted by the eldest son of the former, and the Master to whom it was referred to determine the liability of his estate 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 compen- sation for her eviction, and that for two reasons ; first, be- cause it is clear on the face of the deed itself, that the tes- tator did not mean to assert that he was entitled to grant such an interest as he purported to give. This made me inquire whether there was any evidence of the lessee's hav- ing notice that the lessor had no title to grant this lease. If she had, a different consideration would arise ; ^ and it Penn. State K.) 106, is to the same i Calvert v. Sebright, 15 Beavan, effect. In Cooke v. Founds, 1 Lev- 156, and see this case cited as to inz, 40, S. C. 1 Keble, 95, the vendor another point, supra, p. 526. covenanted that he was seized of a 2 Jt Jg^ however, well settled on this good estate in fee, according to the side of the Atlantic, that notice of an indenture made to him by W., of incumbrance is no defence to an ac- whom he had purchased, and pleaded tion on general covenants, because if in an action, in which it was assigned it had been the intention of the par- for breach, that he was not seized of ties to have excepted it from their a good estate in fee, but he was seized operation, that intention should have ofas good an estate as W. conveyed to been expressed in terms (see supra, him, this was held bad on demurrer, p. 128 et seg.), and by analogy it " for the covenant is absolute, and would seem that the same rule should reference to the conveyance by W., apply to cases of a defective title or serves only to denote the limitation limited interest. Possibly, however, and quality of the estate, and not the a distinction may exist in the case of defeasibleness or indefeasibleness of a lease, and it may be observed that of the title.'' in England the question of the pur- FOR TITLE MAY BE LIMITED OR QUALIFIED. 533 might then he properly said that she could only take such title as she knew could he granted to her. On the one hand, we know that, in practice, a lessee is never allowed to look into the lessor's title ; and, on the other hand, a person granting a term must be taken to know his own title, and to assert that he has power to grant that which he purports to grant. The words ' as far as he lawfully can,' are im- plied without their being used. A man can only be taken to grant that which he lawfully can ; and by such words as these, he cannot mean to assert that he is not entitled law- fully to grant such a lease. To induce me to construe these words to be an intimation to the lessee that the lessor is not entitled to do what he professes to do, I should require either some express authority, or some expression of doubt, upon the face of the lease, that there was a defect as to the title. In the absence of any such authority or expression, I am of opinion that the defect was not disclosed by these words." We now enter upon the consideration of the covenants for title, implied by statutory enactment. Although the common law gave no effect of implied war- ranty in the case of a freehold, to any other word than dedi, yet such an effect was, in the year 1707) given to the words grant, hargain and sell, by the statute of 6 Anne, c. 35^ the 30th section of which enacted " that in all deeds of bar- gain and sale hereafter enrolled in pursuance of this act, whereby any estate of inheritance in fee simple is limited to the bargainee and his heirs, the words grant, hargain and sell shall amount to, and be construed and adjudged in all courts of judicature, to be express covenants to the bar- chaser's notice is not deemed so East Riding of the County of York entirely immaterial. See supra, p. and in Kingston-upon-Hull, and for 133. rendering more complete similar 1 An act which provided for a gen- prior provisions for the West Riding eral registering of deeds, etc., in the of York. 45* 534i IMPLIED COVENANTS, AND HOW COVENANTS gai'nee, his heirs and assigns, from the bargainor for himself, his heirs, executors and administrators, that the bargainor, notwithstanding any act done by him, was at the time of the execution of such deed, seized of the heredita- ments and premises thereby granted, bargained and sold, of an indefeasible estate in fee-simple, free from all incum- brances (rent and services due to the lord of the fee only excepted), and for quiet enjoyment thereof against the bar- gainor, his heirs and assigns, and all claiming under him, and also for further assurance thereof to be made by the bargainor, his heirs and assigns, and all claiming under him ; unless the same shall be restrained and limited by ex- press particular words contained in such deed ; and that the bargainee, his heirs, executors, administrators and assigns respectively, shall and may, in any action to be brought, assign a breach or breaches thereupon, as they might do in case such covenants were expressly inserted in such bargain and sale." This language is so clear as probably to account for the absence of all authority as to its judicial interpreta- tion.^ But the statute was of very limited local application, and probably even in those parts of the country over which it extended, was but of little practical use, as the modes of conveyance there employed were generally deeds of lease 1 It -will be perceived that the supra, p. 164. It is difficult to per- ■covenants, so created, are carefully ceive how the covenants for title limited to the acts of the grantor and should be more limited, and yet to those claiming under him. The prevent the possibility of misconcep- ■words " notwithstanding any act done tion as to a covenantor bein^ bound by him," are the proper restraining even to this limited extent against words of the covenants for seizin and his will, it is provided that even these against incumbrances ; see supra, pp. covenants can be restrained and lim- 19,111. Those for quiet enjoyment ited by express particular words in and for further assurance are also ex- the deed, pressly limited in the usual manner; FOR TITLE MAY BE LIMITED OR QUALIFIED, 535 and release, and might not, therefore, come within the letter of the enactment ; and the covenants for title continued to increase in luxuriance of growth, until their length, which brought with them a corresponding increase of expense, was found to be oppressively severe.^ But until 1845, Parliament did not interfere. In that year was passed the statute of 8 & 9 Vict. c. 113, one of the series of those important enactments which are gen- erally known by the name of " The Real Property Acts." Its object was more extensive than merely to curtail the length of the covenants for title, though, as these generally occupied more than half the conveyance, it was doubtless to a great extent intended for this purpose.^ 1 See the interesting evidence given by Mr. John Tyrrell, before the Real Property Commissioners in 1829 (1 Keal Property Report, 507, etc.). 2 The act of 8 & 9 Vict. c. 119, is too long to be here inserted at length. Its substance, however, may be thus given. Its first section declares that " whenever any party to any deed made according to the forms set forth in the first schedule to this act, or to any other deed which shall be ex- pressed to be made in pursuance of this act, or referring thereto, shall em- ploy in any such deed respectively any of the forms of words contahied in Column I. of the second schedule hereto annexed, and distinguished by any number therein, such deed shall be taken to have the same effect and be construed as if such party had in- serted in such deed the form of words contained in Column II. of the same schedule, and distinguished by the same number as is annexed to the form of words employed by such party ; but it shall not be necessary in any such deed to insert any such number." The second section declares that every such deed shall, unless excep- tion be specially made, be construed to include all houses, out-houses, edi- fices, barns, stables, etc., etc., as well as all reversions, remainders, rents, profits, etc. The subsequent sections provide for the stamp duty — that in taxing any bill for preparing such a deed, remuneration is to be estimated not according to its length, but the skill, labor and responsibility incurred — ■ that a deed failing to take effect un- der this act, shall as far as possible be held valid and effectual — that the word lands shall extend to all free- holds, corporeal and incorporeal hereditaments and copyholds capa- ble of passing by deed ; and that every word importing the singular number only, shall extend and be ap- plied to several persons or things as well as one, and the converse, and 536 IMPLIED COVENANTS, AND HOW COVENANTS But the effect intended by Parliament has not been pro- duced. " The use of these forms in preference to the ordinary instrument of assurance," says a recent text wri- ter,^ " is not obligatory or usual, nor does it appear to be expedient. Such enactments are either unnecessary or mis- chievous ; unnecessary, if the parliamentary form would, if unauthorized bv Parliament, merely express in fewer words the meaning of the forms in ordinary use ; and mischievous, that the schedules are to be part of the act, which was to take eflfect on the 1st of October, 1845, and not to extend to Scotland. The first sched- ule referred to comprises merely a short form of a deed, not unlike the ordinary deeds of bargain and sale used in this country — the word of conveyance is simply " grant." The second schedule is divided into two columns, of which a speci- men is here given — Column I. 1. The said (covenantor) covenants with (covenantee.) the said 2. That he has the right to convey the said lands to the said (covenantee) notwithstanding any act of the said covenantor. Then follow similar forms for ex- pressing the covenants for quiet en- joyment, against incumbrances, and for further assurance, for the pro- duction of title deeds, and that the grantor has done no act to incum- ber. The Revised Statutes of Virginia have concisely adopted this statute. See infra, p. 543. Column II. 1. And the said covenantor doth hereby for himself, his heirs, executors, and administra- tors, covenant, promise and agree with and to the said covenantee, his heirs and assigns, in manner following, (that is to say.) 2. That for and notwithstanding any act, deed, matter or thing, by the said covenantor done, executed, committed, or knowingly or wilfully permitted or suffered to the contrary, he the said covenantor now hath in himself good right, full power and absolute authority to convey the said lands and other the premises hereby conveyed, or intended so to be, with their and every of their appurtenances, unto the said covenantee, in manner aforesaid, and according to the true intent and meaning of these presents. ' Dart on Vendors and Purchasers, 247. Lord St. Leonards, too, in his late abridgment of his former work on Vendors, as well as in his last edi- tion of the complete work, passes over the statute of 8 & 9 Vict, with the most casual notice. See also a severe criticism on this statute in 9 Jurist, Part IL 333, 334. FOR TITLE MAY BE LIMITED OR QUALIFIED. 537 if an unnatural and secondary meaning is given by statute to words which are prima facie clear and intelligible ; for the effect is to increase the difficulty of legal documents to the unprofessional reader." But although statutes giving to the granting words of a conveyance the effect of certain covenants for the title are but little regarded in England, yet similar statutes, for the most part copied from the statute of Anne, have been passed in many parts of this country, and are considered as of practical importance. Within eight years after the statute of Anne, when Pennsylvania was still an infant province, " an Act for acknowledging and recording of deeds "^ was passed, the sixth section of which was evidently copied from the English statute, though the attempt at greater brevity has caused it to be less clear. It declared that^ " all deeds to be recorded in pursuance of this act, whereby any estate of inheritance in fee simple shall hereai'ter be limited to the grantee and his heirs, the words grant, hargain, sell, shall be adjudged an express covenant to the grantee, his heirs and assigns, to wit : that the grantee was seized of an indefeasible estate in fee-sim- ple, freed from incumbrances done or suffered from the grantor (excepting the rents and services due to the lord of the fee), as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed, and that the grantee, his heirs, executors, administrators and assigns, may in any action, assign breaches, as if such covenants were expressly inserted."^ 1 Act of 28th of May, 1715. to leases at rack-rent, or to leases^ 2 The word " in " was probably not exceeding one-and-twenty years, omitted accidentally in transcribing where the actual possession goes with this section. the lease." This proviso has no par- 's The following proviso is at the ticular connection with this section — end of this section : " Provided al- if it had, it would be insensible, as the ways, that this act shall not extend section is limited in application to 538 IMPLIED COVENANTS, AND HOW COVENANTS It will be observed, that apart from mere verbal altera- tions, there are two very perceptible points of difference between the English and the Pennsylvania statute ; the covenant for seizin in the latter not being introduced by restrictive words ; and the former implying a covenant for further assurance, which the latter omits. Why this cove- nant was omitted, it is not easy to perceive, since it is often of great use to a purchaser. It might at first be supposed to be owing to the absence of a court of chancery in Pennsylvania, since a remedy upon this covenant is usually sought in equity, but it will be found that on the same day on which this Act was passed, there was also passed one of the Acts for erecting a supreme or provincial court of law and equity, which (although repealed in Council four years after,^ would seem to negative this ground for the omis- sion. No doubt whatever could have arisen that all the cove- nants implied under the statute of Anne were limited to the acts of the grantor and those claiming under him, and did not extend to defects of title anterior to the conveyance to him. But in the wording of the Pennsylvania statute, it will be perceived that its author has made the first cove- nant, that for seizin, an unlimited one, while the subsequent covenants are restrained to the acts of the grantor. The question would hence arise as to whether the latter cove- nants restrained the former. Were it to arise upon express covenants introduced in a deed, there might, perhaps, be deeds " whereby any estate of inlior- as appears from looking at the 29th itance in fee-simple "is conveyed, and section of the statute of Anne, from the proviso would, according to this which the clause is copied. It is, construction, exempt leases at rack- however, a little remarkable, that in rent, &c., to which the section never many States in which this particular was intended to extend. The pro- section of the Pennsylvania statute viso is, therefore, awkwardly intro- has been adopted, the proviso has duced. It refers, however, to the been also inserted, prior recording provisions of the act, FOR TITLE MAY BE LIMITED OR QUALIFIED. 539 little difficulty in holding, under the authority of cases which have been already referred to,^ that the covenant for seizin stood by itself, an unlimited covenant, and unqualified by those which followed it. But where the question is upon the construction of a statute, there is every reason why the most limited interpretation should be given to covenants which every man is, as it were, obliged to enter into, when the words of implication are, as in Pennsylvania, those gen- erally employed in conveyancing.^ The case of Bender v. Fromberger has been already referred to.^ Tilghman, Ch. J., there mentioned that it had been the general understanding of the profession, that the words " grant, bargain and sell" imported a general war- ranty, and, acting on this ground, he held that this general ' See supra, p. 512. 2 In the first place, the covenants are implied, and the danger arising from such covenanta has been often referred to by Courts in strong terms. In the second place, there is a differ- ent technical rule of construction called in to the interpretation of such a statute ; and -while, with respect to deeds, the rule is, that the words are to be taken most strongly against the party using them, in the construction of statutes the rale is equally famil- liar, that statutes in derogation of the common law are to be construed strictly. Now the common law gave no effect of warranty to the words, " grant, bargain and sell," and it may not unreasonably be said that a stat- ute altering the common law in this respect should, when it is doubtfully expressed, be so construed as to give to the warranty the most limited extent. I have heard it doubted, from the bench, whether the statute could be held to apply to the case of a con- veyance made in execution of a power, on the ground that such ven- dors might not be grantors within the meaning of the statute ; and in the late case of Shontz v. Brown, 3 Ca- sey, (27 Penn. State R.) 134, it was expressly decided that the words " grant, bargain and sell " when used by executors in a deed conveying the real estate of a decedent, " imply no' personal undertaking, for they are used in the necessary execution of their trust and are limited by the occasion." See the ensuing chapter ; and see and consider the remarks of Mr. Charles Butler, in Co. Litt. 384 a, upon the subject of the un- soundness of the objection sometimes made by trustees to conveying by the word " grant." The greater part of this able note is, in some of the edi- tions of the First Institutes, printed at the end of the volume. 3 See supra, p. 515. 540 IMPLIED COVENANTS, AND HOW COVENANTS warranty could not be restrained by a subsequent special warranty ; and this, as a general proposition, was unques- tionably correct. But in the subsequent case of Gratz v. Ewalt,^ the construction of this statute was carefully con- sidered, and it was held that the first covenant, which, standing by itself, would be unlimited, must be taken in connection with the subsequent one against incumbrances, which is limited, and, consequently, that none of the cove- nants implied by the statute were to be construed as extend- ing beyond the acts of the covenantor ; "^ and the construc- 1 2 Binney, 98. 2 " The meaning," said Tilghman, Ch. J., Tvlio delivered the opinion of the Court, " is not clearly expressed ; but I take it to be a covenant that the grantor had done no act, nor created any incumbrance, whereby the estate granted by him might be defeated ; that the estate was inde- feasible as to any act of the grantor. For if it was intended that the cove- nant should be, that the grantor was seized of an estate absolutely inde- feasible, it was improper to add the subsequent words, ' freed from incum- brance done or suffered by him,' these words, instead of adding strength, would only serve to weaken what went before. The words, ' seized of an indefeasible estate in fee-simple,' are to be considered, therefore, as not standing alone, but in connection with the words next following, ' freed from incumbrances done or suffered from the grantor.' I am the more convinced that this was the intention of the legislature, by comparing the expressions in this act, with the 30th section of the statute of 6th Anne, c. 35, which contains a provision on the same subject, and was evidently in the eye of the persons who framed our law. The British statute makes use of more words, and the intention is more clearly expressed. It de- clares that the words, grant, hargain and sell, shall amount to a covenant that the bargainor, notwithstanding any act done by Mm, was, at the time of the execution of the deed, seized of an indefeasible estate in fee-sim- ple, &o. Our law seems intended to express the substance of the British statute in fewer words, and has fallen into a degree of obscurity which is often the consequence of attempting brevity. I can conceive no good reason why our legislature should have wished to carry this implied warranty further than the British statute did, because it has bad effects to annex to words an arbitrary mean- ing far more extensive than their usual import, and which must be un- known to all but professional men. It might be very well to guard against secret acts of the grantor, with which none but himself and those interested in keeping the secret, could be ac- quainted. As for any further war- ranty, if it was intended by the par- ties, it was best to leave them to the usual manner of expressing it in plain terms." Had the case of Bender v. FOR TITLE MAY BE LIMITED OR QUALIFIED. 541 tion'thus given has never been departed from in Pennsyl- vania ; ^ and it is said by Chancellor Kent,^ that " by the decision in Gratz v. Ewalt, the words of the statute are divested of all dangerous tendency, and that it will equally apply to the same statutory language in other States." We are now to consider in what States there are simi- lar provisions, and the construction which they have there received. In none of the New England States does there appear to have been any such implied covenant created by statute. None such ever existed in New York, and the Revised Statutes declare that no " covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not," ^ but it is held in that State that this provision does not extend to leases.* Fromberger, 4 Dallas, 43S, been pre- sented after this determination, its decision would have been different, in case the deed had not contained express general covenants for seizin and of right to convey, as it was taken for granted, in that case, that the statutory covenants were gen- eral ; see supra, p. 515. 1 Funk V. Voneida, 11 Serg. & Kawle, 111 ; Whitehill v. Gotwalt, 3 Penn. K. 323 ; Seitzinger v. Wea- ver, 1 Eawle, 377. In this last case it was held that the statute applied not only to deeds executed, but to articles of agreement for the sale of real estate. " It is insisted," said Gibson, Ch. J., who delivered the opinion of the Court, " that the act of Assembly, by force of which such a covenant can be implied, is appli- cable only to conveyances executed. No express provision to that effect is found in the act itself; and there certainly is nothing in the nature of an executory contract to call for such 46 a construction. AVhere the vendee has done everything on his part to entitle him to the estate, the articles are an equitable conveyance of the title, and, therefore, fall within the letter, as well as the spirit of the en- acting clause. He sometimes obtains no other title, and for that reason alone, the law ought to be construed liberally for his protection. Where a sound price has been paid for an unsound title, I see no objection, on this ground, to its being recovered back." The covenant against incum- brances was included here in the covenant for seizin, since the next sentence is, "But this special cove- nant of seizin is broken by the exist- ence -of an incumbrance created by the vendor, the instant it is sealed and delivered." 2 4 Com. 474. 3 Part 2, art. 4, § 140 ; 2 Rev. Stats. 22. 4 Supra, Tp. 478. 54-2 IMPLIED COVENANTS, AND HOW COVENANTS The provision of the New York Revised Statutes has also been copied into those of Indiana,^ and Michigan, though in the former, while a territory, an act passed in 1804i was exactly copied from the Pennsylvania statute. Nor do any covenants for title seem to be implied by statute at the present day in the States of New Jersey, Maryland, North Carolina,'^ South Carolina,* Georgia, Florida, Louisiana, Ohio,^ Kentucky, Tennessee, Texas, and Wisconsin. In Delaware, " an act for acknowledging and recording of deeds," similar in many of its provisions to the Pennsyl- vania statute of lyi-^, was passed, in the year 1742, and its fifth section is identical with that statute.^ The fifth section of the more recent act of February 7? 1829, was, however, much more concise, viz. : " Where there is no express cove- nant in a deed, the words ' grant, bargain and sell, shall, 1 Eev. Stats, of 1843, c. 28, § 21. 2 Rev. Stats, of 1846, c. 65, § 5. 3 Rickets v. Dickens, 1 Murphey, 343 ; Powell v. Lyles, Id. 348. 4 In South Carolina, an act passed on the 12th of December, 1795, (5 Stat. 256,) gave a short form of a deed of lease and release, in which was a general covenant of warranty- expressed in the usual form ; but a proviso declared that the act should noi be so construed as to oblige per- sons to insert the clause of warranty, nor to prevent them from inserting such clauses as should be agreed upon ; see, as to the construction of this statute, Jeter v. Glenn, 9 Rich- ardson's Law, 374, Faries v. Smith, 11 Id. 81 . In Texas, the act of Feb- ruary 5, 1840, is to the same effect. ^ In Ohio, an act passed August 1, 1795, called "A law establishing the Recorder's Office," was nearly or ex- actly copied from the Pennsylvania statute. It was afterwards repealed. Another act, passed January 2, 1815, gave a right of action in all cases where a deed contained a covenant of general warranty, in like manner as if the deed contained a covenant of seizin, and the same evidence to support the action, and the same damages might be recovered as in an action on the covenant of seizin. This law was repealed and re-enacted in substance on the 3d of February, 1824, and was entirely repealed by the act of March 12, 1831. The de- cisions under these statutes while in force, are Innes v. Agnew, 1 Ohio, 389 ; Day v. Brown, 2 Id. 346 ; Rob- inson V. Neal, 3 Id. 525. The stat- ute of 1815 seems not to have teen very clearly expressed or distinctly understood; Day v. Brown, supra. See note to p. 274 of statute of 1841. 6 1 Booth's Edition of Delaware Laws, 222. FOR TITLE MAY BE LIMITED OR QUALIFIED. 54^S unless specially restrained, imply a special warranty against a grantor and his heirs, and all claiming under him ; " and in the Revised Statutes of 1852,^ the same phraseology has been adopted. In Virginia, the Revised Statutes of 1849, have been, as to this subject, abridged and adapted from the statute of 8 &9 Vict. c. 119.' 1 Chap. 83, § 3, p. 266. 2 Rev. Stats, of Virginia, (1849,) tit. 33, c. 11 7. " § 9. When a deed uses the words ' the said covenants,' such cove- nant shall have the same efi'ect as if it was expressed to be by the cove- nantor, for himself, his heirs, personal representatives and assigns, and shall be deemed to be with the covenantee, his heirs, personal representatives and assigns. " § 10. A covenant by the grantor in a deed, ' that he will warrant gen- erally the property hereby conveyed,' shall have the same effect as if the grantor had covenanted that he, his heirs and personal representatives, will forever warrant and defend the said property unto the grantee, his heirs, personal representatives and assigns, against the claims and de- mands of all persons whomsoever. "§11. A covenant by any such grantor, ' that he will warrant spe- cially the property hereby conveyed,' shall have the same effect as if the grantor had covenanted that he, his heirs and personal representatives, will forever warrant and defend the said property unto the grantee, his heirs, personal representatives and assigns, against the claims and de- mands of the grantor, and all per- sons claiming or to claim by, through, or under him. "§12. The words 'with general warranty,' in the granting part of any deed, shall be deemed to be a covenant by the grantor ' that he will warrant generally the property hereby conveyed.' The words ' with special warranty,' in the granting part of any deed, shall be deemed to be a covenant by the grantor ' that he will warrant specially the property hereby conveyed.' "§13. A covenant by the grant- or in a deed for laud, 'that he has the right to convey. the same to the grantee,' shall have the same effect as if the grantor had covenanted that he has good right, full power, and absolute authoi-ity to convey the said land, with all the buildings thereon, ^nd the privileges and appurtenances thereto belonging, unto the grantee, in the manner in which the same is conveyed or intended so to be by the deed, and according to its true intent. "§14. A covenant by any such grantor, ' that the grantee shall have quiet possession of the said land,' shall have as much effect as if he covenanted that the grantee, his heirs and assigns, might, at any and all times thereafter, peaceably and quietly enter upon and have, hold and enjoy, the land conveyed by the deed or intended so to be, with all the buildings thereon, and the privi- leges and appurtenances thereto be- 54 IMPLIED COVENANTS, AND HOW COVENANTS In Illinois, the provision in the Revised Statutes of 1 8S9 was copied literally from the section of the Pennsylvania statute, and it was re-enacted in the Revised Statutes of 1845, c. tii} In Alabama, the 29th section of the act of 4th March, 1805, was copied exactly from the Pennsylvania statute, and adopted in the Revised Statutes of 1823,^ and in Roe- buck V. Dupuy,^ the decision in Gratz v. Ewalt was ap- proved and applied to it. In a subsequent case,* the words of the conveyance were " bargained, sold, released, aliened and confirmed," and upon a demurrer to the declaration, it was held that these words did not come within the act, in- asmuch as there could be no question that they imported no warranty at common law, and the statute, which altered the longing, and receive and take the rent and profits thereof to and for his and their use and benefit, with- out any eviction, interruption, suit, claim or demand whatever. If to such covenant there be added ' free from all incumbrances,' these words shall have as much effect as the words ' and that freely and absolutely ac- quitted, exonerated, and forever dis- charged, or otherwise by the said grantor or his heirs saved harmless and indemnified of, from and against any and every charge and incum- brance whatever.' "§15. A covenant by any such grantor ' that he will execute such fur- ther assurances of the said lands as may be requisite,' shall have the same effect as if he covenanted that he, the grantor, his heirs or personal represen- tatives, will at any time, upon any rea- sonable request, at the charge of the grantee, his heirs or assigns, do, exe- cute, or cause to be done or executed, aU such further acts, deeds and things, for the better, more perfectly and ab- solutely conveying and assuring the said lands and premises, hereby con- veyed or intended so to be unto the grantee, his heirs and assigns, in manner aforesaid, as by the grantee, his heirs or assigns, his or their coun- sel in the law, shall be reasonably- devised, advised or required. "§ 16. A covenant by any such grantor, ' that he has done no act to incumber the said lands,' shall have the same effect as if he covenanted that he had not done or executed, or knowingly suffered, any act, deed or thing whereby the lands and premi- ses conveyed or intended so to be, or any part thereof, are, or will be, charged, affected or incumbered in title, estate or otherwise.'' Rev. Stats. of Virginia, 1849. 1 For the effect of this statute see Mosely v. Hunter, 15 Missouri, 322. ■^ Tit. 18, c. 1, § 20. 3 2 Alabama, 541. ^ Gee V. Pharr, 5 Alabama, 187. FOR TITLE MAY BE LIMITED OR QUALIFIED. 54^5 common law, should not have its meaning stretched beyond its letter, except in cases of public utility, when the object of the act appeared larger than the enacting words, which, it was said, was not then the case. The statute not only altered the common law, but, inasmuch as it created cove- nants for the party conveying, by mere impHcation, its ten- dency might be regarded as somewhat dangerous, and as calculated to entrap the ignorant and unwary ; and the same principle was applied in a more recent case.^ In Mississippi, the section of the Pennsylvania statute was copied in the statutes of 183^,^ and re-enacted in the Revised Statutes of 184<0.^ In a late case,* the Court gave no opinion as to the first of these implied covenants being limited to the acts of the grantor (though Gratz v. Ewalt was cited in the argument), but decided the case on the ground that the express covenant of warranty which the deed contained did away with the implied covenants.^ " The covenants raised by law from the use of particular words in 1 Clanoh V. Allen, 12 Alabama, soon as made," but no case will be 164. When it is said in. Andrews v. found in which this has been said of McOay, 8 Id. 928, that " the statute the implied covenant for quiet enjoy- covenant was broken when the deed ment, when that covenant was the was made, and the general cove- one sued upon, nant of warranty (which was also in ^ jstji June, 1832, c. 24, § 32. the deed) by the eviction under the 3 Chap. 34, § 32. sale," it is presumed the Court did 4 Weemsu. McGaughan, 7 Smedes not mean to say that the implied & Marsh. 427, see also Bush i'. Cooper, covenant for quiet enjoyment was .26 Mississippi, 599. broken as soon as made, so as (in the 5 This is correct when applied to absence of a covenant of warranty) the case of covenants contained in a to deprive an assignee of a remedy conveyance for a term of years. In on the statutory covenants, on the such cases, the covenant implied from ground of its being a chose in action, the words of leasing is annulled by and therefore not assignable, see the insertion of an express cove- supra, p. 342 et seq. This is here nant; Nokes's case, 4 Coke, 80 ; Line mentioned because many of the cases v. Stephenson, 5 Bing. N. C, see say, generally, in actions on the im- supra, p. 483 ; but this was not the plied covenant for seizin, and against law as to the conveyance of a free- incumbrances, " this was brobfen as hold. 46* 5i6 IMPLIED COVENANTS, AND HOW COVENANTS the deed, are only intended to be operative when the parties themselves have omitted to insert covenants. But when the party declares how far he will be bound to warrant, that is the extent of his covenant." The effect of this is, of course, to deny to a purchaser the benefit of any covenant for seizin which the statute gives him, when he has also received an express covenant of warranty, and under such circumstances it would seem that there could never be a recovery without an eviction. In Missouri, the Revised Statutes of 1845,^ 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 convey- ances, be construed to be the following express covenants on the part of the grantor for himself and his heirs to the gran- tee, his heirs and assigns. First, that the grantor was at the time of the execution of such conveyance seized of an indefea- sible estate in fee-simple in the real estate thereby granted. Second, that such real estate was, at the time of the execution of such conveyance, free from incumbrances done or suffered by the grantor, or any person claiming under him. Third, for further assurance of such real estate to be made by the grantor and his heirs to the grantee and his heirs and as- signs, and may be sued upon in the same manner as if such .covenants were expressly inserted in the conveyance." There were former acts passed in 1804< and 1825,^ from 1 Page 221 . seized of an indefeasible estate in fee- 2 In the act of 1825, it was de- simple, in and to the lands, tenements clared that " the words grant, bargain and hereditaments thereby granted, and sell, shall be adjudged express bargained and sold, and that the covenants for the bargainee or the sanie was then free from incumbran- grantee, his heirs and assigns, for the ces done or suffered from the bar- bargainor or grantor for himself, his gainor or grantor, his heirs and as- heirs, assigns and administrators, that signs, and all claiming under him; the bargainor or grantor was, at the and also for further assurance there- time of the execution of such deed, of, to*be made by the bargainor or FOR TITLE MAY BE LIMITED OR QUALIFIED. 5^7 which this was altered. The second of these covenants is a limited one. The first and third are general. In a re- cent case,^ the Court, after a careful review of the English and Pennsylvania authorities, held that these three covenants were distinct and independent. The second may be super- fluous, but it does not therefore limit the first, which is in- dependent of, and not inconsistent with it.^ Of these, the covenant for further assurance was, at one time, held to be the only one which could be taken advantage of by an as- signee of the land,^ but very recent decisions have gone so far as to hold that all the covenants thus implied run with the land to the successive owners thereof.* So in Iowa, the Revised Statutes ° declare that the words " grant, bargain and sell," in all conveyances, shall, unless re- strained by express words, " be construed to be the following express covenants : First, that the grantor was, at the time of the execution of such conveyance, seized of an indefeasi- ble estate iu fee-simple, in the real estate thereby granted. Second, that such real estate was, at the time of the execu- tion of such conveyance, free from incumbrance done or suffered by the grantor, or any person claiming under him. Third, for further assurance of such real estate to be made grantor, his heirs and assigns, unless his covenants. It was, however, held the same be restrained," &c. The by the Court that there was no breach act of 1804 was identical with the of the covenant of warranty, and Pennsylvania statute. that the mortgage could not come 1 Alexander v. Schreiber, 10 Mis- within the scope of the statutory souri, 461. covenant against incumbrances, be- s^ See accordingly. Collier v. Gam- cause the grantor having covenanted ble, 10 Missouri, 471. to warrant and defend against the i* Collier v. Gamble. In Shelton v. mortgage, he could not be supposed Pease, 10 Missouri, 473, a purchaser to mean to covenant against its ex- took an express general covenant to istence. warrant and defend against all titles, * Dickson v. Desire, 23 Missouri, and particularly against a certain 151, (supra, p. 341) ; Chambers v. mortgage which had been executed Smith, Id. 1 74 ; Armstrong v. Darby, by his grantor. He paid off this 26 Id. 520, supra, p. 193. mortgage and then brought suJt upon ^ Page 204. 548 IMPLIED COVENANTS, ETC. by the grantor and his heirs to the grantee, his heirs and assigns, and may be sued upon in the same manner as if such covenants were expressly inserted in the conveyance." In a recent case,^ it was considered as beyond question, that the covenants thus implied were general or absolute, and it was moreover held,^ that when the deed contained also a covenant of warranty limited to the covenants of the grantor, it would not control the generality of the statutory cove- nants. In Arkansas, it is declared that " the words, grant, bar- gain, and sell, shall be an express covenant to the grantee, his heirs and assigns, that the^ grantor is seized of an inde- feasible estate in fee-simple, free from incumbrances done or suffered from the grantor, except rents or services that may be expressly reserved by such deed, as also for the quiet en- joyment thereof against the grantor, his heirs and assigns, and from the claim or demand of all other persons whatso- ever, unless limited by express words in such deed. The grantee, his heirs or assigns, may in such action assign breaches as if such covenants were expressly inserted." ^ 1 Brown v. Tomlinson, 2 Greene, Richards, cited supra, p. 501 et seq. 525, see also Funk v. Cresswell, 5 and of Alexander v. Schreiber, Clarke, 84. supra, p. 547. 2 Upon the authority of Hesse v. 3 s.ev. Stat, of 1848, p. 264 ; Davis Stevenson, Gainsforth v. Griffith, v. Tarwater, 15 Arkansas, 289. Smith V. Compton, and Howell v. WHAT COVENANTS FOR TITLE, ETC. 549 CHAPTER XI. WHAT COVENANTS FOR TITLE A PURCHASER HAS A RIGHT TO EXPECT.^ It was not until towards the close of the seventeenth century in England, that with the comparative cessation of civil warfare, and the steady improvement and consequent increase in value of real estate, the law of vendor and pur- chaser began to assume that form which it has since sub- stantially preserved ; and as land became more the subject of transfer, its muniments of title were more readily yielded to the examination of the purchaser. But, however rigid this examination, and however willing courts of law and equity might be to carry out the principle, which, before the consummation of the contract, protects the purchaser's right to a title clear of defects and incumbrances, yet, while so doing, they also continued to recognize and enforce his right to covenants for the title.^ The form and extent of these covenants were, however, changed. Before that time, it 1 In England it has been held, that Bing. 491 ; so it is said, an attorney if the attorney of a vendor allow him for a vendee will be liable for not se- to enter into an unusual covenant, curing to him the covenants to which ■without explaining the liability there- he would be entitled from the other by incurred, he is responsible for party, Dart on Vendors, 258. consequent loss, notwithstanding the 2 " if^" gays Lord Eldon in Church vendor may, at the time, have been v. Brown, 15 Ves. Jr. 263, " a man aware of the fact in respect of which covenants to sell a fee-simple estate, the liability on the covenant is in- free from all incumbrances, and says curred, Stannard v. UUithorne, 10 no more, it is clear that covenant car- 550 WHAT COVENANTS FOR TITLE had not, in general, been thought too much for a purchaser to demand and receive covenants against the acts of all those claiming by title, that is, against the acts of all but mere trespassers.^ But when the examination of the title became a matter of course, and vendors who brought their estates into the market were forced to comply with certain rules, which it was held the purchaser had a right to exact, it was naturally thought unreasonable that he should receive covenants of so wide a scope, and the extent of the covenants which a purchaser had a right to expect, soon became matter of regulation in England, and is now well settled. Vendors of real estate may be divided into three classes. First. Those who sell estates of which they are seized in their own right. Second. Fiduciary vendors, such as trustees, executors, (whether selling in exercise of a povver or under authority of a decree,) mortgagees, assignees of bankrupts, insolvents, and the like. Third. Ministerial vendors, such as sheriffs, marshals, tax-collectors, &c. A manifest and proper difference, which it is believed is well settled on both sides of the Atlantic, exists between the covenants for title which a purchaser has a right to expect from each of these classes of vendors. First. Vendors who sell estates of which they are seized in their own right. As a general rule nothing is better settled in England, ries in gremio, and in the bosom of it, most materially, substantially and the right to proper covenants. Why ? importantly, the effect of the mere Because that sort of engagement has conveyance." in all times been carried into execu- i See supra, p. 165. tion in a form and mode which alter A PURCHASER HAS A RIGHT TO EXPECT. 551 both in point of authority and practice, than that a purchaser has no right to demand from his vendor covenants of greater scope than against his own acts. " If a man purchase an estate of inheritance," said Lord Eldon,^ " and afterwards sell it, it is to be understood prima facie, that he sells the estate as he receives it, and the purchaser takes the premises granted by him, with covenants against his acts. This seems at first to involve a degree of injustice, but it all depends on the fact whether the vendor be really putting the purchaser into the same situation in which he stood himself. If he has bought an estate in fee, and, at the time of the re-sale, has but an estate for life, it must have been reduced to that estate by his own act, and in that case the purchaser will be protected by the vendor's covenants against an act done by himself. But if the defect in his title depend upon the acts of those who had the estate before him, and he honestly but ignorantly proposed to another person to stand in his situa- tion, neither hardship nor injustice can ensue. What is the common course of business in such case "? An abstract is laid before the purchaser's counsel, and though to a certain extent he relies on the vendor's covenants, still his chief attention is directed to ascertaining what is the estate, and how far it is supported by the title. The purchaser, there- fore, not being misled by the vendor, makes up his mind whether he shall complete his bargain or not ; and, if any doubt arise on the title, it rests with the vendor to determine whether he will satisfy these doubts by covenants more or less extensive. Prima facie, therefore, in the conveyance of an estate of inheritance, we are led to expect no other covenants than those which guard against the acts of the vendor and his heirs. "^ 1 Browning v. Wright, 2 Bos. & ^ See, in accordance with this Pull. 23 ; for the copnection in which view, Church v. Brown, supra, and these remarks were made, see supra, two opinions in 2 Powell's Gonvey- p. 493. ancing, 206-209. The following re- 552 WHAT COVENANTS FOR TITLE There is, however, an exception to the rule which in England denies to the purchaser unlimited covenants, and that is in the case of a mortgage, in which, it would seem, a mortgagor always gives unlimited covenants for the title, as those who lend money are accustomed to require every possible security for its repayment,^ and to some extent, such would also seem to be the practice on this side of the At- lantic.^ It has, moreover, been said that in common leases, as the title is not inspected, the lessor should covenant against all persons whomsoever.^ Where, however, the vendor does not claim by purchase, in the popular signification of the term, that is, by way of sale for a valuable consideration, a purchaser is entitled, as a general rule, to require covenants extending to the acts of the last person who thus claimed by purchase,* " and this," mark of Mr. Fearne is taken from his Posthumous Works : " A vendor who purchased the estate himself should covenant only against his own acts, and the acts of all claiming un- der him, where the title is well de- duced, and the identity of the lands conveyed to him, and those sold by him, is apparent ; but if the title of the vendor is questionable, he should covenant generally ; and if the lands conveyed, owing to any alteration in them or otherwise, do not evidently appear by the description of them in the purchaser's deed of conveyance to be the same conveyed to the ven- dor, the vendor should further cove- nant that they are part of the estate conveyed to him by his vendor." 1 Williams on Keal Property, 348 ; Cripps V. Keade, 6 Term, 606 ; 2 Sugden on Vendors, 427. '^ Lookwood V. Sturdevant, 6 Con- nect. 384 ; Lloyd v. Quimby, 5 Ohio State R. 262. 3 Barton's Conveyancing, 75. See Calvert v. Sebright, 15 Beavan, 156, S. C. 15 Eng. Law & Eq. R. 125, supra, p. 532. ■1 In the old case of Pool v. Pool, 1 Chancery Reports, 1 8, " the plain- tiff being ordered to perform his father's covenants refused, insisting that he is not chargeable with his father's covenants as heir, the land being conveyed to him — nor as ex- ecutor, having no assets. This court ordered that the said plaintiff shall seal the said covenant according to the said articles of his father, and thei-eby covenant to free the prem- ises from leases and incumbrances, or stand committed to the Fleet." In referring to this case in Hill v. Ressegieu, 17 Barbour, S. C. (N. Y.) 167, the Court said, "no doubt the son had notice, and I suppose these covenants were against his own acts.'' A PURCHASER HAS A RIGHT TO EXPECT. 553 says Lord St. Leonards,^ " is the universal and settled prac- tice of conveyancers.^ For instance, if I sell an estate which was devised to me, and the devisor's father originally purchased the estate, the covenants for title are extended to the acts of the father," ^ and on this side of the Atlantic the same practice has been often recognized.^ The object of English conveyancers, in thus obtaining covenants against the acts of all those not actually claiming by purchase, is, that there may be no one in the chain of title against whose acts there is not a covenant.® 1 2 Sugden on Vendors, 453; Dart on Vendors, 260. 2 This rule has not, however, been always adopted by the Court of Chan- cery. Lord Hardwicke once said that he had never heard nor did he know of such a rule ; " it would be unreasonable to extend the cove- nants to the first purchaser, when a family have been for several gene- rations in possession of the estate, for they may have had the benefit of the statute of limitations and other bars in their favor, and, therefore, carrying it no further back than the person under whom the present ven- dor claims, is sufficient." Loyd v. Griffith, 3 Atkyns, 267, but see this case, infra, p. 568. 3 So, it is said, where one claims under a voluntary settlement or con- veyance, the covenants, when he sells, should be as e.xtensive as in the case of descents ; but if any of the family purchased the estate, then the covenants should only e.xtend to the acts of such purchaser and those claiming under him. Barton's Con- veyancing, 72. 4 Hill u. Ressegieu, supra ; Hyatt V. Seeley, 1 Kernan, (N. Y.) 56 ; Hol- man u. Criswell, 15 Texas, 399. 47 5 See passim, supra, p. 325. "Al- though in theory," says Lord St. Leonards (2 Sugden on Vendors, 453), "a purchaser is entitled to a regular chain of covenants for title running with the land, and e.xtend- ing to the acts of the successive own- ers of the property, yet practically, he is entitled to no such thing, but must rest content with the covenants ob- tained by former owners, whether they run with the land or are col- lateral to it, and whether they keep up the chain of liabilitj', or leave it altogether broken and disconnected. This observation does not apply to the covenants for title to wliich a purchaser is entitled from his imme- diate seller." In "Humphreys on Real Property," a work not more remarkable for the concise and clear view of the actual law which it con- tains, than for the deficiency of the code by which the learned author proposed to remedy the evils he so pointedly showed to exist, he re- marks : " The professed rule is, that there should be a chain of cove- nants throughout the title, connect- ing those of the alienor wilh those of the preceding owner who has last covenanted. To this rule, however, 554i WHAT COVENANTS FOR TITLE But it will be found difficult and perhaps impossible to determine, by general and precise rule, what, on this side of the Atlantic, are the covenants which a vendor is obliged to give, and which a purchaser has a right to expect,^ as, owing to various causes, the practice of conveyancing differs widely in the two countries.^ It is obvious, moreover, that many of the usages of conveyancing which prevail where the state of society has for a long time been permanent, the titles old, and to a greater or less extent carefully examined at every there are the following several objec- tions of expediency and of precedent. First, such a qualified warranty never actually enters the contemplation of the contracting parties. Whoever acquires land at its full value, ex- pects an equally complete or inde- feasible title to it. The notion of concatenated fractions of an entire oblin'ation, rendering the alienor an- swerable for the faults of the first link only, and then referring the alienee, for all prior defects, to the exhausted assets of long-deceased strangers, is too revolting to suppose it would be accepted, as a guarantee, by any purchaser to whom it was once explained. Should it be urged — you have the title to inspect — he would reply, such are the complica- tions of real property, and the in- adequate means of search, that with all reasonable .diligence, defects must often remain undiscovered, and a purchaser is not concluded hy latent faults. Under the Roman law, the seller, on the eviction of the pur- chaser, was answerable to him for the loss, under certain qualifications, interposed for the protection of the former. The Code Napoleon (1626 -1840), in framing which both pre- cedent and principle were fully dis- cussed (and the subject is a general one), imposes an absolute warranty on a seller, in case of eviction, to be answered in damages, the amount of which is chiefly regulated by the price, and by subsequent permanent improvements." Humphreys on Real Property, 77. 1 It was held by Lord Tenterden at Nisi Prius, Bennett v. Womack, 3 Car. & Payne, 96, and subsequently by the Court of King's Bench, on a motion for a new trial, 1 Barn. & Cress. 627, that the question of what were the " usual covenants " which a lessor might exact of his lessee as to payment of the rent, &c., was one for the jury upon the evidence ; (and see the note to Henderson v. Hay, 3 Bro. Ch. K. 632,) and it is appre- hended that the same rule would be applied on both sides of the Atlantic, to the question of what are the usual covenants for title. 2 The absence of a general system of registration may be said to be one of the principal of these causes. The vexatious questions which hence arise in England as to tlie purchaser's right to a production of the vendor's prior title deeds, are unknown in this coun- try. A PURCHASER HAS A RIGHT TO EXPECT. 555 purchase, lose their application in a comparatively new coun- try. The same covenants which might satisfy a purchaser in England or Massachusetts, might not satisfy a purchaser in Texas or California. As precision of conveyancing in- creases with the steady rise of property, and as the titles become better known, a purchaser is less anxious for gen- eral covenants than where he buys in comparative ignorance of the title, and relies upon such covenants for his protec- tion.^ Hence, the greatest difference will be found to exist between the law and practice on this point, not only on the different sides of the Atlantic, and between different States, but even between different parts of the same State.^ Thus, in Pennsylvania, it has been held by the Supreme Court that, as a general rule, a purchaser has no right to expect covenants of greater scope than against the acts of the vendor and his heirs, and that an agreement to convey by a warranty deed, means in popular phrase, a deed with special warranty,^ while at the same time it is held that no suspicion of the title can properly arise in case the deed should con- tain general covenants.* In the larger towns of that State, 1 See the remarks of Huston, J., reason to suspect that the title was in Whitehead v. Carr, 5 Watts, (Pa.) defective. A purchaser taking a 369, and Spencer, J., in Pitcher u. deed with a general warranty, forms Livingston, 4 Johns. (N. Y.) 14. not the slightest presumption that the 2 These remarks in the text were title he received was doubtful, or that cited and approved in the late case he knew it to be such. The idea of Dwight V. Cutler, 3 Michigan, 577, seems to be, that if he fails to recover infra, p. 558. the land, he has his remedy over 3 Withers v. Baird, 7 Watts, (Pa.) against the vendor ; and that, there- 229 ; Espy v. Anderson, 2 Harris, (14 fore, he can be in no better situation Penn. State R.) 312. than the vendor. It is apparent, * Cresson v. Miller, 2 Watts, (Pa.) however, that in a great majority of 276 ; Forster's Executors v. Gillam, instances, a vendee cannot obtain 1 Harris, (13 Penn. State R.) 343. adequate relief. Without insisting " General warranties," said Gibson, upon the occasional insolvency of the Ch. J., in Cresson v. Miller, "are vendor, he cannot be compensated taken ex abundante caulela, and not for the increased value of the land, because the purchaser had the least arising from his industry and skill, or 556 WHAT COVENANTS FOR TITLE and certainly in Philadelphia, it is believed that in ordinary cases, a covenant of warranty, limited to the acts of the ven- dor and his heirs, and, in some instances, carried back to the last person claiming by purchase,^ is the only express cove- nant for title inserted in the conveyance, and this coincides with the rule of the Supreme Court, while a fiduciary ven- dor usually enters into only the ordinary trustee covenant.^ In many of the counties, however, it is believed that a pur- chaser generally expects, and a vendor rarely hesitates to- give a covenant of general warranty, as it seems to be some- times thought, that if the latter is only willing to covenant against his own acts, he must know there is something defective about the prior title. In a somewhat recent case in the Supreme Court of the United States,® Story, J., referred to a deed with special warranty only, as being " a significant circumstance," in affecting a purchaser with notice of a paramount title.* But there would seem to be equal reason for the opposite argument that a deed with general warranty was as significant a circumstance — that unless there had been something wrong about the title, the purchaser would not have demanded a general covenant, and that he intended to run the risk of the defect, and rely on the covenant for his protection. It is apprehended, how- ever, that neither of these positions is tenable, and that no presumption of notice can properly arise, either from' the presence or the absence of general covenants. In Virginia, it has been repeatedly and recently held that from the employment of his capital they are carried back to the last per- in erecting valuable improvements on son claiming by purchase in its popu- the premises." lar sense ; see supra, p. 552. 1 Thus, in case of a conveyance by a Infra, p. 556. heirs or devisees, it is believed to be 3 Oliver v. Piatt, 3 Howard, 410. customary to extend (he covenant to ^ Such also seems to have been the acts of the intestate or testator, thought in Woodfold v. Blount 3 and sometimes, as stated in the text, Hey wood, (Tenn.) 147. A PURCHASER HAS A RIGHT TO EXPECT. 557 the practice there was different from that in England, and that a covenant for general warranty is usually required and given.^ So in Kentucky, it was held, at an early day, to be both the settled rule and practice in that State, that unless there were a special contract to the contrary, a cove- nant of general warranty must be given ; ^ and such is still the rule.* So in a late case in Michigan, it was held that 1 Eucker v. Lowther, 6 Leigh, (Va.) 259, where it was said to be " admitted in the argument, and rightly, I think, that, upon an agree- ment for the sale of lands, the ven- dor is to be considered as contracting for a general warranty, unless the contrary is expressly provided." See Dickinson v. Hoomes's Admrs. 8 Grattan, 394, where the language of Lord Eldon, in Browning v. Wright, supra, p. 551, was quoted and con- trasted with the Virginia practice. 2 Steele v. Mitchell, Kentucky De- cisions, 47. As this volume of reports is believed to be rare, the following extract is inserted from the opinion of the Court in this case. " Where a conveyance is to be made, for a valuable consideration of a general nature, a warranty is universally held to be an essential part of the deed or assurance ; and unless in those cases where it is otherwise provided by special contract, a general warranty is as universally expected. It need not be observed, that this opinion and expectation is certainly author- ized by the general principles of justice, as well as by the universal custom of this country, and that from which we derive most of our legal precepts. The appellee was only willing to convey with special war- ranty, and the appellant refused to 47* accept a conveyance without general warranty. Then the only question of consequence which arises in the suit is, what is the rational import of the words of this bond (which was conditioned to make a deed for the premises), relative to the matter in dispute. . . . This Court is of opinion, that to comply with the legal intent of the bond in question, such a deed as is customary in like cases should be made ; that is to say, a deed with general warranty ; and consequent!}', that the District Court erred in de- creeing a deed with only special war- ranty. This opinion is supported by the doctrine on warranties, which has been suggested ; and is further con- firmed by the maxim, that the words of every one's obligation shall be taken most strongly against himself. To which may be added, that reason seems to dictate, that when any per- son seems to limit his contract in the sale of lands, it is his business to have it expressed ; otherwise the presump- tion ought to be that he undertakes to make a good title, or a deed which will insure the land, or its value, to the purchaser." 3 Fleming v. Harrison, 2 Bibb, 171; Vanada v. Hopkins, 1 J. J. Marshall, 293 (see Bodley v. M'Cord, 4 Id. 475) ; Hedges v. Kerr, 4 B. Monroe, 528 ; Andrews v. Word, 17 Id. 520, .558 WHAT COVENANTS FOR TITLE the tender of a deed containing covenants against the acts of the vendor only, was not a compliance with a contract of sale.^ So in Indiana, a bond conditioned " for making a lawful title" was held to require a general warranty,^ and al- though in a case in the Circuit Court of the United States for that district, McLean, J., considered that a bond conditioned to make " a good and general warranty deed with the fee- simple annexed," did not require the insertion of a covenant of seizin ; ^ yet in a late case, the Supreme Court of that State have held that an agreement to convey " by a good and indefeasible inheritance in fee-simple," is not comphed with by the tender of a deed with a general covenant of war- ranty merely, but that " a fair construction of the language of the bond makes it demand a deed with full covenants."* So, where, in an early case in Ohio, it was said that a con- tract for a good and sufficient deed is a contract "to convey the fee-simple with covenant of warranty," ® it is presumed that a general warranty was meant ; ® and in a later case, it In Slack v. Thompson, 4 B. Monroe, 2 Clark v. Redman, 1 Blackford, (Ken.) 462, the express agreement (Md.) 379. was to give a covenant of quiet en- 3 Kirkendale v. Mitchell, 3 M'Lean, joyment, " without any trouble or 146. molestation whatever,'' and the terms * Linn v. Barkey, 7 Indiana, "0. of the agreement would of themselves 5 Tremain v. Lining, "Wrin-ht, 644. have been sufficient to prevail even 6 So it is presumed that general against an opposite usage to the con- covenants are intended by the ex- trary. pression in a late case in Vermont, 1 Dwight V. Cutler, 3 Michigan, " The several covenants of seizin and 579, where, after citing the remarks against incumbrances are covenants in the text, supra, the Court added, which, under the form of convey- " No doubt it is the general usage in ances in this State, are usually in- this State, and probably in most of serted in deeds of that character, the Western States, to convey land and when an agreement is made by deeds containing the covenant of for a warranty deed, a deed with general warranty, upon the principle these covenants would be intended," that an agreement to convey, where Bowen v. Thrall, 2 Williams, (Verm.) there is nothing to show a contrary 385, and the covenant of warranty in intention, gives a right to the usual the deed in question was a general or covenants for title." absolute one. A PURCHASER HAS A RIGHT TO EXPECT. 559 was held that a bond to make a lawful title, bound the obligor " for a good and perfect title with a general warranty deed, containing the usual covenants." ^ It is presumed that the same rule prevails in the States more recently admitted into the Union, and where the titles are comparatively nevver.^ But it is probable, that with the increase of care in the ex- amination of titles, the purchaser's right to unlimited cove- nants will be narrowed. It is scarcely necessary to say, that whatever may be the local usage on this point, it will be always subject to be con- trolled by the express terms of the articles of sale. Owing to the looseness of manner in which these articles are often expressed, questions have even arisen whether the contract was not substantially complied with by the tender of a deed containing covenants for the title, although the title itself might be defective. Thus, in Gazeley v. Price,^ the Supreme Court of New York held that an agreement " to give a good and sufficient deed for the premises," re- lated merely to the validity and sufficiency of the convey- ance in point of law, to pass whatever estate the vendor had ; and in the subsequent case of Parker v. Parmelee,* a similar construction was given to a contract to give "a good warranty deed of conveyance of the land." ^ i Clark V. Redman, 11 Ohio, 380. before the adoption or repudiation of 2 There the remark of Spencer, J., it." in Pitcher v. Livingston, 4 Johns. 14, 3 jg Johns. 267, per Spencer, J. may apply, that it was rare for the 'l 20 Johns. 132. purchaser to investigate the seller's 5 go in a case in Massachusetts, title, and that he mostly relied upon where the agreement was to give a his covenants. In Gilchrist v. Buie, good and sufficient warranty deed of 1 Dev. & Batt. Eq. (N. Car.) 357, the premises, it was held that "the the Court, in adverting to the Eng- words 'good and sufficient' relate lish rule of limiting the covenants to only to the validity of the deed, and the act of the vendor, said, " That do not imply that the title was valid position has never yet been laid down or that it was free from incumbrance, by us or our predecessors, and would To guard against any defect of title, require very deliberate consideration a covenant of warranty was provided 560 WHAT COVENANTS FOR TITLE But these decisions in New York are opposed both to prior and to subsequent authorities in the same State, based upon articles substantially similar, and cannot be considered as law at the present day, either there or elsewhere. Thus, in the early case of Clute v. Robinson,^ it was held by Kent, Ch. J., that au agreement to execute a good and sufficient deed for the premises, did not mean merely a conveyance good in point of form. That would be a conveyance with- out substance ; but it meant an operative conveyance, one that carried with it a good and sufficient title to the land conveyed;^ and in a subsequent case,^ Chancellor Walworth was clearly of opinion that " an agreement to convey land by a good and sufficient warranty deed, was not complied with by the mere giving of a warranty deed, where the grantor had no title to the land, or when his title was im- perfect. It must be a deed good and sufficient, both in form and substance, to convey a valid title to the land which the covenantor has agreed should be conveyed."* These principles are sustained by a great weight of authority,^ and for, -which shows clearly that the agree- ingly quoted by Van Ness, J., in de- ment was so understood by the par- livering the opinion of the Court, in ties.'' Tinney I'. Ashley, 15 Pickering, Judson v. Wass, 11 Johns. 528. 552, approving Gazeley U.Price. The 3 Everson v. Kirtland, 4 Paii^e, same Court seemed disposed to take (N. Y.) 638. the same view of the law in an early 4 So in Carpenter v. Baily, 1 7 case, Aiken v. Sanford, 5 Mass. 499, Wendell, (N. Y.) 244 ; Traver v. Hal- though it was said in that case, as in stead, 23 Id. 66 ; see Winne v. Rey- Swan V. Drury, 22 Pickering, 489, nolds, 6 Paige, (N. Y.) 411. and Tharin v. Fickling, 2 Richardson, 5 Dearth v. Williamson, 2 Sers;. & (S. Car.) 364, " that if the money Rawle, (Pa.) 498 ; Romig v. Romig, was to be paid on receiving the deed, 2 Rawle, (Pa.) 249 ; Eby v. Eby, 5 it might be a reasonable construction Barr, (Pa.) 466 ; (see Moore v. Plarris- that a good and sufficient title should burg Bank, 8 Watts, (Pa.) 149) ; Col- be conveyed." See also Mead v. well U.Hamilton, 10 Id. 415; Porter u. Fox, 6 Cushing, (Mass.) 202. Noyes, 2 Greenleaf, (Me.) 22; Brown 1 2 Johns. 413. v. Gammon, 14 Maine, 276 ; Hill v. 2 So in Jones v. Gardiner, 10 Johns. Hobart, 16 Id. 164 ; Stow v. Stevens, 266, and these remarks were approv- 7 Vermont, 27; Lawrence v. Dole A PURCHASER HAS A RIGHT TO EXPECT. 561 in the recent case in New York of Pomeroy v. Drury, all the authorities were considered, and Gazeley v. Price and Parker v. Parmelee were directly overruled,-'^ and the latest authorities in that State have adhered to this course of de- ll Id. 549; Little u. Paddleford, 13 N. Hamp. 167 (settling the doubt sug- gested in Beach r. Steele, 12 Id. 8,^) ; Mitchell V. Hazen, 4 Connect. 495 ; Dodd c. Seymour, 21 Id. 480; Swan V. Drury, 22 Pickering, (Mass.) 488 ; Mead v._ Fox, 6 Gushing, (Mass.) 202 ; Brown v. Starke, 3 Dana, (Ken.) 318 ; Andrews v. Word, 17 B. Mon- roe, (Ken.) 520 ; Tarwater v. Davis, 2 English, (Ark.) 153 ; Dwight v. Cutler, 3 Michigan, 575 ; Clark v. Redman, 1 Blackford, (Md.) 379 ; Pugh V. Chesseldme, 11 Ohio, 109; Hunter v. O'Neil, 12 Alabama, 39 ; Greenwood v. Ligon, 10 Smedes & Marsh. (Miss.) 615 ; Feemster v. May, 13 Id. 275 ; Mobley v. Keys, Id. 677; Gilchrist i>. Buie, 1 Dev. & Bat. Eq. (N. Car.) 346 ; Lee v. Foard, 1 Jones' Eq. (N. Car.) 127; Watts V. Waddle, 1 M'Lean, 200; Morgan v. Smith, 11 Illinois, 199; Brown v. Cannon, 5 Gilman, (III.) 174; Cunningham v. Sharp, 11 Humphreys, (Tenn.) 120; Shreck V. Pierce, 3 Clarke, (Iowa), 360; Vardeman v. Lawson, 17 Texas, 16 ; Thayer o. White, 3 California, 229. In New Jersey, the early case of Johnson u. Smock, Coxe, 106, was decided in accordance with the ear- lier case in New York of Clute v. llobinson, but in Barrow v. Bispham, 6 Halsted, 119, the Court approved of the decisions in Gazeley v. Price and Parker v. Parmelee. AVhen the question was again presented in the recent case of Tindall v. Conover, 1 'Spencer, 214, Nevius, J., after say- ing that the Court took a rational and correct view of the question in Barrow v. Bispham, by holding that unless there was something else in the instrument or attendant circum- stances to show that the parties by the deed meant tide, the Court had no right to say the former word meant the latter, added, " If this were entirely an open question in this Court, I confess I should strong- ly incline to adopt the construction given by Judge Kent and the Court of Errors in Clute v. Kobinson 1 undertake to say, that in a written contract for the sale and purchase of lands, the expression, ' a good and sufficient warranty deed,' will be un- derstood by more than nine tenths of mankind, not excepting the legal profession, to mean a good and suf- ficient title ; " and ' when this case came again before the Court in Tin- dall I). Conover, 1 Zabriskie, (N. J.) 654, the question was decided in ac- cordance with the weight of author- ity just referred to. See also New Barbadoes Toll Bridge Co. v. Vree- land, 3 Green's Ch. (N. J.) 157. 1 14 Barbour's S. C. (N. Y.) 424, the Court saying " I think it may be safely said that Gazeley v. Price and Parker v. Parmelee are no longer au- thorities for holding that a covenant to convey lands by warranty deed on a sale, refers only to the form and suffi- ciency of the deed and not to the title conveyed." The decisions in question had also been virtually overruled in Fletcher v. Button, 4 Comstock, 400. 662 WHAT COVENANTS FOR TITLE cision.^ It is possible that some cases wPjich seem to be not in harmony with others, may be reconciled by reason of the express and peculiar words of the contract.* There is, indeed, a guiding principle to the construction of all these cases, which may be briefly referred to. It is familiar law that the general principles of the contract of sale, both in this country and in England, recognize and enforce, while it is still executory, the right of the pur- chaser to a title clear of defects and incumbrances. This right is one, not growing out of the agreement of the par- ties, but which is given by the law,^ and it naturally fol- lows, that a court of equity will not decree the specific per- formance of a contract, where the title is bad, or even, as it has been said in modern times, where it is doubtful.* 1 Hill V. Ressegieu, 17 Barbour's S. C. 164 ; Atkins v. Bahrett, 19 Id. 653 ; Burwell v. Jackson, 5 Selden, 643. 2 Thus, an agreement to convey all the vendor's interest in a certain lot, " meaning the same interest which was deeded to him by P.," was held to bind the vendor only to a convey- ance of that interest ; Babcock v. Wilson, 17 Maine, 372. 3 Souter V. Drake, 5 Barn. & Adolph. 999, per Denman, Ch. J. ; Doe V. Stanion, 1 Mees. & Welsb. 701 ; Burwell u. Jackson, 5 Selden, (N. y.) 543 ; Shreck v. Pierce, 3 Clarke, (Iowa) 360 ; 2 Sugden on Vendors, 2. 4 The rule in equity as to not com- pelling a purchaser to take " a doubts ful title,'' was said in Marlow v. Smith, 2 Peere Wms. 201, to be as old as Sir Joseph Jelcyl's time, and in Slope t!. Fish, 2 Vesey & Beamcs, 149, it was said to have been repeatedly acted on by Lord Hardwicke. Shap- land «!. Smith, 1 Brown's Ch. E. 75, is, however, generally cited as the leading case, although there was there but an expression of Lord Thurlow, that " if the title was only doubtful, he would not oblige the purchaser to take it." Of that case, Mr. Chief Baron Eyre (before whom, while sitting for the Chancellor, it had been originally heard), remarked, in Gale I'. Gale, 2 Coxe, 145, that "there could be no such thing as a doubtful title in a court of justice — it must either be right or wrong, and the thickness of the medium through which the point was to be seen, made no difference in the end. The Court might have some difficulty in clear- ing it, but at last the point must be taken as equally certain as if no such difficulty had existed, for which rea- son, in the case of Shapland v. Smith, he had not felt the force of these cases, in which it had been said that a purchaser should not be compelled to take a doubtful title.'' See the A PURCHASER HAS A RIGHT TO EXPECT. 563 Hence, when an incumbrance exists, which it was not agreed upon should enter into and form part of the consid- remarks of the same Judge in Cooper V. Denne, 4 Brown's Ch. R. 88 ; also reported in 1 Vesey, Jr. 665. Lord Eldon said also, in Vancouver «. Bliss, 11 Vesey, 465, that he " recol- lected the period when it was the office of the Court to decide whether the title was good or not, and it was thought better that the dry rule should prevail that, if the title was good, the purchaser should take it, than that the Court should speculate upon the point, whether there was more or less difficulty in the title ; and say in one case, he should take it ; in another, he should not. The old course was, that if the parties were afraid of the decision, they ap- pealed, and had not a title absolutely indefeasible, but as good a warranty as could be procured. The depart- ure from that course has been at- tended with great mischief. The first instance is the case of Shapland V. Smith, in which the single ques- tion between Baron Eyre and Mr. Hett was, whether there was a use executed or not ; and the case sunk down into this state, that with so much difficulty upon the title, a pur- chaser should not be compelled to take it. That case has been followed since. What is the consequence ? It is scarcely possible to represent the difficulties that have arisen from it ; especially in a period, when per- sons, under the description of land- jobbers, are going about looking for these things, and persons improvi- dently enter into contracts with them. Whenever a contract is made for the purchase of land, though no doubt has ever been entertained upon the title, no one thinking of disputing it, if the purchaser has a good bargain, he overlooks all these objections ; but, if he finds he cannot sell the estate as well as he wished, or cannot enjoy it to his satisfaction, the first thing is, that the abstract goes to some one for the express purpose of finding out objections, and opinions are given on both sides. I feel great concern for the owners of this sort of property. The consequence is, not only the misery arising from the uncertainty, whether that, which they have been enjoying with happiness, and upon which their families are to subsist, is their property ; but it is an invitation to all, who may fancy they have an interest in it, to make an attack. There cannot be much doubt, therefore, which is the best rule, but the course which now pre- vails has been established so long, that I have not authority to alter it." See Stapylton v. Scott, 16 Vesey, 274 ; Biseoe v. Perkins, 1 Vesey & Beames, 493 ; Sloper d. Fish, 2 Id. 149. A valuable note on this sub- ject by Mr. Hovenden, will be found appended to the case of Cooper v. Denne, 1 Vesey, Jr. 567. In Dalzell v. Crawford, 1 Parsons's Equity Cases, (Pa.) 45, the following language of King, P. J., is character- ized by his usual clearness and force : " The specific execution of a contract in equity is not of absolute right in the party asking it, but of sound dis- cretion in the Court. Hence it re- quires a much less strength of case on the part of the defendant to resist WHAT COVENANTS FOR TITLE eration, the vendor must discharge it before he can call for a completion of the sale.' a bill to perform a contract, than it does on the part of the plaintiff to maintain a bill to enforce a specific performance : 2 Story, 78, 79 ; White V. Damon, 7 Vesey, 85. In Clows v. Higginson, 1 Vesey & Beames, 526, it is said by the Vice-Chancellor to be a plain and obvious principle, that a court of equily is not hound to in- terpose by specifically performing the contract. And although the subject and import of the -written contract are clear, so that there is no neces- sity to resort to evidence for its con- struction, yet if the defendant can show any circumstances, dehors, in- dependent of the writing, making it inequitable to interpose for the pur- pose of a specific performance, a court of equity having satisfactory information on the subject, will not interpose. This discretion is not, however, arbitrary, but exercised in a judicial manner according to estab- lished rules: 3 Atkyns, 187; 18 Ve- sey, 111. " As a natural result of this doc- trine, has arisen that of marketable titles. A marketable title in equity is one in which there is no doubt in- volved, either as to matter of law or fact ; and such a title will a purcha- ser be compelled to accept : Atkin- son, 3. It seems that a court of equity has no power in suits for spe- cific performance, except on the ap- plication and consent of all parties to direct an issue for the determination of a matter of fact ; nor can it, with- out such an application or consent, direct a case or an action for the pur- pose of satisfying itself on a matter of law : Eoake v. Kidd, 5 Ve.sey, 64 7 ; Prebble v. Boghurst, 1 Swanst. 320 ; Sharp v. Adcoek, 4 Russell, 375. Hence, if doubts arise, either as to fact or law, involved in the title, and the purchaser be an un- willing one, as bis consent cannot, of course, be had to an issue on the case, the Court is deprived of the only competent means of informing its conscience, and is placed in the dilemma, either to take upon itself the decision of the fact or the law, which it would do at the hazard of what might be afterwards determined in a court of law, or to refuse to in- terfere on behalf of the vendor ; an alternative it is entitled to choose on the principle that a bill for specific performance of a contract, is an ap- plication to the discretion of the Court, and a decree, therefore, can- not be claimed ,as a matter of right : Atkinson, 9. In illustration of this doctrine, Lord Eldon, in Stapleton v. Scott, 16 Vesey, 272, remarks, that ' It has been held repeatedly that though, in the judgment of the Court, the better opinion is, that a title can be made, yet if there is a considera- ble, rational douhi, the Court has not attached so much credit to its own opinion as to compel a purchaser to take the title, but leaves the parties to law.' The distinction between good and marketable titles seems pe- culiar to courts of equity, being un- known in courts of law, where the question is simply, is the title good or bad : Romilly u. James, 6 Taunton, 1 2 Sugden on Vendors, 419. A PURCHASER HAS A RIGHT TO EXPECT. 565 The law then, recognizing, primd facie, a necessary im- plication of a good title in every contract for the sale of real estate, it follows that an agreement by whicli such a settled rule is to be disregarded should be couched in the most express terms, and as the law further recognizes the purchaser's rights to covenants for the title, it is difficult to perceive how an agreement to convey " by a sufficient war- ranty deed," or words of similar import, can weaken the agreement which the law implies from the mere relation of vendor and purchaser.^ Second. Fiduciary vendors, such as trustees, executors, (whether selling in exercise of a power, or under authority of a decree) mortgagees, assignees of bankrupts, insolvents, and the like. A manifest and proper difference exists between this class of vendors and that which we have just considered, as. to the covenants to be exacted from them, and the rules and « 274; 1 Marshall, 592. The equity plaintifif's rights, if any he can estab- doctrine seems to involve this result, lish. It only denies to him an extra- that no title will be forced on a pur- ordinary remedy, properly applicable chaser which is not so free from dif- only to cases in no respect equivocal, ficulty as to law and fact, that on a The doubts, however, which will op- re-sale an unwilling purchaser shall erate on a, court of equity, are not be unable to raise any question which doubts made up for the occasion ; may appear to a Judge sitting in not based on captious, frivolous, and equity, so doubtful that a title involv- astute niceties ; but such as produce- ing it ought not to be enforced, real honaf.de hesitation in the mind These are settled doctrines of English of the Chancellor. The doubts must, equity, and seem to necessarily arise in the language of Lord Eldon, be from the constitution of strictly equit- 'considerable and rational,' such as able tribunals. The urgent powers would and ought to induce a prudent of these tribunals ought never to be man to pause and hesitate in the applied in the exercise of any discre- acceptance of a title affected by tionary jurisdiction, where doubts them." prevail as to the perfect soundness 1 The remarks in the text were of the plaintiff's claim, or apparent cited at length and approved in the justice characterizes the defendant's late case of Vardeman v. Lawson, 17 objections. The refusal to interfere Texas, 16. does not absolutely repudiate the 48 566 WHAT COVENANTS FOR TITLE practice upon this subject, are, perhaps, equally well settled on both sides of the Atlantic. The rule may be said to be a general one with respect to fiduciary vendors, who have either no interest in the subject of the sale, or have a naked legal title, that the purchaser is entitled to no covenants but that the vendor has done no act to incumber the estate, which is very generally called " the usual trustee covenant ; " it being evident that few persons could be found to act in a fiduciary or representative capacity if they were compellable to enter into covenants of greater scope.^ This covenant is generally expressed in the following words : " that he, the said (trustee) hath not, at any time heretofore, made, done, permitted or suffered, or been party or privy to any act, matter or thing whatsoever, wherewith ' The rule with respect to trustees and executors may be found in Staines v. Morris, 1 Ves. & Beames, 10 ; AVorley v. Frampton, 5 Hare, 560 ; Dwinel v. Veazie, 36 Maine, 509 ; Sumner v. AVilliams, 8 Mass. 201 ; Hodges v. Saunders, 17 Picker- ing, 476 ; Shontz v. Brown, 3 Casey, (27 Penn. State R.) 13-t; Grantland U.Wight, 5 Munford, (Va.) 295; Al- len V. Winslow's Admr. 1 Randolph, (Va.) 71 ; Ennis v. Leach, 1 Iredell's Eq. (N. Car.) 416 ; Brackenridge v. Dawson, 7 Indiana, 387 ; Worthy v. Johnson, 8 Georgia, 236 ; Redwine V. Brown, 10 Id. 311 ; Aven v. Beckom, 11 Id. 1 ; Chastaine v. Staley, 23 Id. 26 ; and with regard to assignees, in W^ilkins v. Fry, 1 Merivale, 208 ; White v. Foljambe, 11 Ves. 345, and see, passim, the cases cited infra, p. 572, and where, in Atty.-Gen. v. Morgan,' 2 Russell, 306, the Court cancelled a lease as having been improperly granted by trustees of a charity, it refused, on the application of the lessee, to suffer the covenants of the trustees to re- main. It is presumed, however, that where the vendor had an interest, as well as a power, he would always be obliged to covenant personally to the extent of that interest ; Barton's Con- veyancing, 73. It might be thought reasonable that fiduciary vendors should covenant for further assur- ance, but the practice has been oth- erwise, Barton's Conveyancing, 70, and it has been recently settled that this cannot be exacted of them; Wor- ley V. Frampton, 5 Hare, 560. It has, however, been held that if trus- tees under a will come into equity to compel specific performance by the vendee of a contract made with their testator as vendor, they will be com- pelled to covenant for the title in the same manner as he was to have done ; Page u.Broom, 3 Beavan, 36. A PURCHASER HAS A RIGHT TO EXPECT. 567 or by means whereof the premises hereby granted, or any part or parcel thereof, now, or at any time hereafter shall be impeached, charged or incumbered in title, estate or oth- erwise howsoever.^ But although further covenants cannot be demanded from a fiduciary vendor, yet it has been the practice in England for the purchaser to insist on covenants from the parties beneficially interested in the purchase-money, at least in the case of cestui que trusts? The practice of the profession, however, as to this point, seems not to have been for many years enforced or even recognized by the Court of Chancery,^ 1 The importance of the words " being party or privy to," is exem- plified by the case of Hobson v. Mid- dleton, 6 Barn. & Cress. 295, where it was held that the covenantor hav- ing assented to an act which he could not prevent, was no breach of a covenant that he had not " permit- ted or suffered any act, matter or thing," &c. 2 "It always has been, and still is the practice of the profession," says Lord St. Leonards, " to make all the cestui que trusts whoso shares of the purchase-money are in any wise con- siderable, join in covenants for the title, according to their respective interest." " A bankrupt," he con- tinues, " is always made a party to the conveyance of his estate, to meet the difficulty which the purchaser might otherwise be put to in main- taining and proving the title, and the bankrupt is generally made to enter into covenants for title, and in the same manner as he would have done had he sold the estate while solvent," 2 Sugden on Vendors, 454. It seems, however, that the bankrupt cannot be compelled to do this, and his con- currence is rather matter of favor than of right ; Ex parte Crowder, 2 Kose, 327 ; Waugh v. Land, Cooper, 134 ; Sugd. Concise View, 433 ; and it is apprehended that this would equally apply to conveyances made by assignees for the benefit of cred- itors, under insolvent laws. 3 The practice was condemned by Lord Loughborough in Wakeman v. The Duchess of Rutland, 3 Vesey, 233, 504, affirmed on appeal, 8 Brown's Par. Cas.' 145. The decision was, however, against the opinion of the most experienced conveyancers of that period, and is, says Lord St. Leonards, " by no means an author- ity that cestui que trusts of money to be produced by the sale of estates devised to trustees to sell, cannot in any instance be required to covenant for the title. Where the money to arise by sale of the estate is abso- lutely given to two or more persons, they are substantially owners of the estate, and must accordingly cove- nant for the title. So even where the money is in the first place to be applied in payment of debts, yet if they are all paid previously to the 568 WHAT COVENANTS FOR TITLE and it has not been until recently that it has received judi- cial approbation.^ It would seem that the correct test of the application of such a rule would be the extent of the purchaser's liability to see to the application of the purchase- money. sale, the cestui que trusts must, it is conceived, covenant for the title." It may, moreover, be observed that Wakeman v. The Duchess of Rut- land, Tvas, to some extent, against the views expressed by Lord Hard- wicke in Loyd v. Griffith, 3 Atkyns, 264, which case is, however, criti- cized by Mr. Piatt, who says it ap- pears to have been decided " rather ■with reference to particular circum- stances than from any general prin- ciple ; " Piatt on Covenants, 392. 1 In the case of the London Bridge Acts, 13 Simons, 176, lands were devised to A for life, remainder to B for life, remainder to his sons suc- cessively in tail male. A and B during the infancy of B's eldest son obtained an act of Parliament vest- ing the estate in trustees in trust to sell, and the Vice-Chancellor " ap- prehended that where the only per- sons 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 life in this case stood in the same situation as if there had been a power to sell the estates with their consent, in which case it would be a matter of course for them to enter into the covenants." See also Page V. Broom, 3 Beavan, 35. 2 Lord St. Leonards says, " Where an estate is sold by trustees under a will, and the money is to be applied in payment of debts, etc., and the residue is given over, a purchaser is not entitled to any covenants for the title, because no line can well be drawn as to the quantum which would make a person liable to covenant ; and therefore, if this rule were not settled, a person who only took £5 might as well be required to cove- nant, as one who took a large sum. The same rule applies ex necessitate where an estate is sold for similar purposes under an order of a court of equity. If a different rule pre- vailed, the consequence would be, that the estate could never be sold by decree, till the account was taken of all the debts ; because, before that account was taken, it could not ap- pear who were to join in the convey- ance, what was the number, and in what proportions they were benefi- cially entitled ; but it is the constant practice to sell the estate in the first instance ; of course the title can be made only by the trustees for sale, without calling on the parties who are presumptively beneficially inter- ested." There would seem to be some reason why, in America, cestui que trusts should not be compellable to enter into covenants for title, which is, that the English doctrine which in many cases obliges the pur- chaser to see to the application of the purchase-money, is less regarded here (see the late Mr. Wallace's note to the case of Elliot v. Merry man, 1 Leading Cases in Equity,) and the A PURCHASER HAS A RIGHT TO EXPECT. 569 The question of the purchaser's right to covenants for the title from an agent, acting under a power of attorney from his principal, has often arisen in cases where, in a suit against the latter, upon covenants made on his behalf by the agent, the right so to bind the principal has been denied. In the early case in 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 had no right to demand these covenants, and hence it was said that a power of attorney to sell and convey land, expressed in the usual form, implied no power to covenant for the title ; ^ and in a subsequent case,^ the same rule was purchaser is therefore in less need of these covenants as a protection against the future claims of the par- ties beneficially interested ; though as regards claims under an adverse paramount title, it is obvious that this reason cannot apply. The passage in the text was cited in the late case in New York of Hill t'. Ressegieu, 17 Barbour's S. C. 167, where it is said, " That liabiUty (to see to the application of the pur- chase money,) does not now extend to payments to the trustees made in good faith; 1 Rev. Stats. 730, 10 Paige, 282," and it was held that where a vendor having covenanted to convey land free of all incumbrance died, leaving a widow and three heirs, one of whom was an infant, the in- fant was decreed to convey, but with- out covenants, and the adult heirs were decreed to convey with cove- nants against their own acts. The same point as to covenants by infant heirs was decided in Hyatt v. Seeley, 1 Kernan, (N. Y.) 56. 1 5 Johnson, 58. 48 » 2 " The attorney was authorized," said the Court, " to sell and to exe- cute conveyances and assurances in the law, of the land sold, but no authority was given to bind the prin- cipal by covenants. A conveyance or assurance is good and perfect with- out either warranty or personal cov- enants, and therefore they are not necessarily implied in an authority to convey ; an authority is to be strictly pursued, and an act varying in sub- stance from it is void." 3 Gibson V. Colt, 7 Johnson, 390. In Van Eps v. Schenectady, 12 Id. 436, Nixon v. Hyserott was approved, and it was held that a conveyance was perfect without any covenants for the title, and this was also the de- cision in Fuller v. Hubbard, 6 Cowen, 22, and Willis v. Aston, 4 Edwards' Ch. 595, and these cases have been approved in Connecticut ; Mead v. Johnson, 3 Connect. 592 ; Dodd v. Seymour, 21 Id. 480. Such a con- veyance is certainly sufficient to pass the estate of the grantor, but is not, it is conceived, all that the purchaser 570 WHAT COVENANTS FOR TITLE applied to the warranty of a chattel. It has, however, been held in England that an authority to sell a horse carries with it an authority to warrant him sound, as the warranty is, in general, a natural incident of the contract.^ This has been approved and followed on this side of the Atlantic, and in many cases the correctness of the New York decision has been denied, and it seems to be established by the weight of authority, that as the law recognizes the right of a pur- chaser 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 consummate the contract.^ Where, however, that authority is restricted in terms so express as to control that which the law otherwise implies, the rights of the purchaser will, of course, be limited by the letter of .the instrument. It is, however, a familiar rule that, in general, when par- ties contract en autre droits and bind themselves personally, and fail to bind their principals, they are to be held person- ally responsible,^ and the rule applies a fortiori to contracts under seal. This general principle M'as applied in England, in the case of Appleton v. Binks,* where one having cove- nanted, on behalf of another, to pay the purchase-money of certain property, he was held personally liable ; the Court holding that it was impossible to contend that where one covenants for another he is not to be bound for it, and the has a right to expect; "The title is J. Marshall, (Ken.) 293; Hedges v. one thing, the covenants are other Kerr, 4 B. Monroe, (Ken.) 528 ; things, intended as a support of the Peter v. Farnsworth, ] 5 Vermont, title;" Osborne v. McMillan, 5 Jones' 155 ; Ward u. Bartholomew, 6 Pick- Law, (N. Car.) 109. See supra, p. ering, (Mass.) 410 ; Taggertu. Stans- 560. bery, 2 McLean, 543 ; Rucker v. ' Alexander u. Gibson, 2 Camp- Lowther, 6 Leigh, (Va.) 259. bell, 555. See also Pickering v. 3 See passim, Story on Agency, Busk, 15 East, 45. § 263, &c. 2 Hunter v. Jameson, 6 Iredell, (N. 4 5 East, 148. Car.) 252 ; Vanada v. Hopkins, 1 J. A PURCHASER HAS A RIGHT TO EXPECT. 571 covenantee might prefer the security of the covenantor to that of his principal.^ In this country it has frequently happened that fiduciary vendors have, either from inadvertence or design, entered into covenants for title of greater scope than we have seen the law exacts of them, and in such cases it is well settled that the covenants are personally binding upon them. Thus where, in Sumner v. Williams,^ the grantors " in their ca- pacity as administrators," covenanted that they, administra- tors as aforesaid, were lawfully seized of the premises, that they were clear from all incumbrances except a certain mort- gage and a right of dower, that they had, in their said capacity, good right to sell, and that, as administrators as aforesaid, they would warrant and defend the premises, it was held that the covenantors were personally bound to pay, out of their private estates, damages arising from an evic- tion 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 pecu- liar caution to avoid any idea of personal liability ; and fur- ther, that the nature of the transaction, the character in which the grantors contracted, and the language of the in- strument, concurred in proving that such was the intention of both parties ; while at the same time it must be con- fessed equally clear that both parties believed that the cove- nants were to be effectual in case of an interruption of the estate supposed to be granted, though probably neither of them contemplated the happening of such a contingency. On the occurrence of that contingency, however, the Court was reduced to the alternative of pronouncing the covenants 1 See to the same effect, Burrell v. 2 g Mass. 162. There had been Jones, 3 Barn. & Aid. 47 ; Kennedy previous eases in Massachusetts to the V. Gouveia, 3 Dowh & Ry. 503; same effect; Thacher v. Dinsmore, Norton v. Herron, 1 Car. & Payne, 5 Mass. 299 ; Forster v. Fuller, 6 Id. 648. 59. 57^ WHAT COVENANTS FOR TITLE to be void and wholly ineffectual,^ or of giving them opera- tion against the defendants in their personal and individual capacity, and however hard the alternative might be, in sub- jecting the administrators to the payment of damages con- trary to their intention, still it was said that the principle was one too deeply rooted to be unsettled. It was, more- over, vcell remarked, that while an administrator was not required by any duty of his office or trust, to enter into a personal covenant for the perfection of the title or for the validity of the conveyance, beyond his own acts, yet it would be admitted that he was at liberty to do so if he chose thus to excite the confidence of purchasers and to enlarge the proceeds of the sale, and that he might be competent to en- gage his own credit collaterally in the conveyance. The rule thus stated is supported by a current of authorities, and by well-established principle.^ 1 That a covenant for title made by an administrator will not bind the estate is well settled ; Mason i'. Ham, 36 Maine, 573 ; Shontz v. Brown, 3 Casey, (27 Penn. State R.) 134; Osborne u. BIcMillan, 5 Jones' Law, (N. Car.) 109 ; Worthy v. Johnson, 8 Georgia, 236. 2 Duval V. Craig, 2 Wheaton, 56 ; Stinchfield v. Little, 1 Greenleaf, (Me.) 231; Coe v. Talcott, 5 Day, (Conn.) 92 ; Mitchell v. Haven, 4 Con- nect. 485 ; Belden v. Seymour, 8 Id. 24 ; Whiting v. Dewey, 15 Pickering, (Mass.) 433 ; Donahoe v. Emory, 9 Metcalf, (Mass.) 66 ; Godley k. Taylor, 3 Devereux, (N. Car.) 178 ; (and see Osborne v. McMillan, 5 Jones' Law, (N. Car.) 109) ; Mason v. Caldwell, 5 Gilman, (111.) 196 ; Mellen v. Boar- man, 13 Smedes & Marsh. (Miss.) 100; Aven v. Beckom, 11 Georgia, 1, where the subject is elaborately considered; Craddock v. Stewart's Admr. 6 Alabama, 77. Thus, where an administratrix of her deceased husband conveys the land of the estate under order of court and cove- nants for the title, although she is not bound so to covenant, yet havinc done so the covenants will estop her from claiming dower in the land; Megee v. Mellon, 23 Mississippi, 586. It has, however, been held that where the covenantor expressly de- clares that his liability shall be no more than co-extensive with his fidu- ciary capacity, he will not be per- sonally bound, even although the covenants carry with them no pro- tection whatever to the covenantee. Thus in Thayer v. Wendell, 1 Galli- son, 16, Story, J., held that a cove- nant by an executor in his " capacity of executor and not otherwise," cre- ated no personal liability, and that A PURCHASER HAS A RIGHT TO EXPECT. 573 Third. Ministerial vendors, such as sheriffs, marshals, tax-collectors and the like. It is sufficiently apparent from what has been already said, that no covenants for the title of any kind can be demanded from this class of vendors.^ no man acting fairly and openly in alieno jure, and not otherwise, can be made answerable in his private capacity upon the contract. So where in Ohio, in the case of Day v. Browne, 2 Ohio, 347, the covenant was that the grantors would warrant and defend " as executors are bound by law to do," the distinction was taken that in the cases above referred to, the word executor, trustee, &c., amounted only to matter of descrip- tion, but that as executors were not bound in that State to warrant at all, the words were used to qualify their responsibility. So, in Kentucky, in Manafee v. Morrison, 1 Dana, 208, where executors covenanted to war- rant " to the extent of their assets," it was held that the covenant imposed no obligation on them individually, nor beyond the assets in their hands at the time of the eviction, and the previous case of Nicholas v. Jones, 8 A. K. Marshall, 385, was to the same effect. The distinction between these two classes of eases may, perhaps, be that in the former, although the in- tention of the covenantor may appli- edly appear to be that he intends his covenant not to bind himself person- ally, yet that unless this intention be manifested by the most express and unequivocal language, a false confi. dence of security may be excited on the part of the purchaser, and the rule applies that the words of the in- strument are to be taken most strong- ly against the party using them ; but when the covenantor expressly limits this liability, no such confidence is or ought to be raised, and the cove- nantee by acceptance of such a cove- nant cannot draw from it a greater protection than its express terms per- mit. A covenant by a part owner, to the extent of his share, obviously binds him no further than to that ex- tent ; Coster v. Manufacturing Co. 1 Green's Ch. (N. J.) 467. In Wil- son V. Cochran, 14 N. Hamp. 397, where a tax collector had, in pursu- ance of a statutory form for deeds to be created by these officers, entered into personal covenants for the title, it was held that they were not binding on him, as he was obliged to follow the statutory precedent. 2 The Monte Allegro, 9 Wheaton, 616 ; Friedly v. Scheetz, 9 Serg. & Eawle, (Penn.) 156; Lowden v. Robertson, 5 Blackford, (Ind.) 276; Rocksell V. Allen, 3 McLean, 357 ; Rogers v. Horn, 6 Richardson, (S. Car.) 361 ; Wilson u. Cochran, 14 N. Hamp. 397. 3^4) WHO ARE BOUND BY, AND WHO MAY TAKE CHAPTER XII. WHO ARE BOUND BY, AND WHO MAY TAKE ADVANTAGE OF COVENANTS FOR TITLE. It is proposed in this Chapter to consider, in the first place, who are bound by the covenants for title ; or, in other words, the liabilities arising under them of the cove- nantor (and herein also of the rights of the latter in equity), of the heir, the devisee, the executor or admin- istrator, and the assignee ; and secondly, who may take advantage of them, or the rights of the covenantee, the heir, the devisee, the executor or administrator, and the assignee. 1 . Of the Covenantor. — The liability of a covenantor depends, of course, to so great an extent upon the nature of the covenant into which he has entered, and the cir- cumstances which have caused its breach, that it has there- fore already, for the most part, received consideration in pre- ceding chapters.' 1 The liability created by cove- out of either of which he can satisfy nants for title has in some instances, his claim, he shall not be permitted been deemed a material circum- so to exercise that right as to disap- stance in determining the rights of point another creditor who has re- parties in the marshalling of assets, course to but one of them. In En -- It is a general and familiar princi- land, this principle is perhapi m. o pie of equity, that where a creditor frequently called into oper- tuin as has a right to elect between two funds, between creditors of the * l'-^'""! ADVANTAGE OF COVENANTS FOR TITLE. 575 Whenever the action of covenant is founded on privity of contract, it is transitory in its nature, and the covenantor personal estate of a decedent. But as on this side of the Atlantic, lands are in most of the States made assets for the payment of all debts, whether due by specialty or simple contract, this class of cases is comparatively a small one, and tlie principle is ap- plied in favor of sureties, purchasers, devisees and legatees, &c. It is only as respects purchasers that the sub- ject 'may need consideration here. Where a vendor sells land which is covered by an incumbrance, for ■whose payment he is personally lia- ble, and the contract between himself and the purchaser has been that the latter is not to take the land cum onere, it is sufficiently obvious that the purchaser is not only entitled to an indemnity, upon payment of the incumbrance by him, but also to a substitution to all the rights of the holder of the incumbrance; and if the incumbrance bind other land of the vendor, the purchaser should, of course, not only be subrogated to such rights as are personal to the vendor, but also to those of subject- ing that land to payment of the in- cumbrance. Thus, in the case of Eddy V. Travers, 6 Paige, (N. Y.) 521, where one of four heirs sold to the complainant his undivided fourth part of his ancestor's estate with a covenant of warranty, which part was afterwards sold by the surrogate for payment of the debts of the decedent, it was held that the complainant had an equitable lien upon the unsold petiion of the estate, and had a right Lfe{ftpn^ in upon the fund raised by the ss' of that portion under pro- in partition. As this right on the part of the purchaser depends, however, wholly on the nature of the contract between his vendor and himself, the presence of covenants for title in the convey- ance to him is deemed a material cir- cumstance as evidence of this. Thus, in Averall v. Wade, Lloyd Goold's K. temp. Sugd. 259, Sir E. Sugden, then Chancellor of Ireland, said, " A man seized of estates A and B, both subject to a judgment debt, settles A for valuable consideration, without noticing the judgment, the judgment creditor would be compelled to go against estate B, and the persons claiming under the settlement would be entitled to have the settled estate exonerated, at the expense of the unsettled estate ; the judgment binds both, and where there is a settlement of part of an estate, as if free from incumbrance, equity will throw the whole on the unsettled part, which still belongs to the original owner. Here there is a covenant that the es- tate is free from incumbrances ; as- suming that there was no such cove- nant, but a mere declaration tliat the estate was free from incumbrances, there can be no doubt that that decla- ration would throw the incumbrance on the unsettled estates." So, in the case in New York of Guion v. Knapp, 6 Paige, 35, it was said, " If a mort- gage is a lien upon two hundred acres of land, and the mortgagor con- veys one hundred acres thereof to A, the one hundred acres which remains in the hands of the mortgagor, is to be first charged with the payment of the debt, and, if that is not sufficient, the other one hundred acres is next 576 WHO ARE BOUND BY, AND WHO MAY TAKE may be liable to suit wherever process may 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 upon a covenant which runs with the land, the action is local, and cannot be sustained unless the land is within the juris- diction of the Court in which the action is brought. This has long been settled law,^ and in a recent case in Massa- chusetts where the plaintiff brought an action on a covenant of warranty given by the defendant upon the sale of land in Illinois to one under whom the plaintiff claimed through several mesne conveyances, the plaintiff was nonsuited on the ground of want of jurisdiction, although both he and the defendant were residents of Massachusetts, and the former was, it was urged, without remedy unless the Court should sustain the action.*' to be resorted to. But if A has sub- sequently conveyed one half of his one hundred acres to B with ■war- ranty, the fifty acres remaining in the hands of A is, in equity, first chargeable with the payment of the balance of the debt which cannot be raised by a sale of the one hundred acres that still belong to the mortga- gor or his subsequent grantee, before resort can be had to the fifty acres which A has conveyed with warranty. And if A conveys his remaining fifty acres to C, either with or without warranty, that portion of the prem- ises is still liable for the balance of the mortgage debt, and must first be sold before a resort can be had to the fifty acres previously conveyed with warranty to B ; " and in Gumming v. Camming, 3 Kelly (Geo.) 482, these remarks were quoted with approval. But the presence of the covenant of warranty is, as has been before said, and as appears from the case of Averall v. Wade, material only by way of evidence of the original con- tract, and the, principle is equally susceptible of application in any case where, from other evidence than that afforded by the covenants, it can be seen that the purchaser was to take the land free from the particular in- cumbrance, Cowden's Estate, 1 Barr, (Penn.) 266 ; Notes to Aldrich v. Cooper, 2 Leading Cases in Equity, where the whole doctrine of marshall- ing of assets is carefully considered. 1 1 Chitty's Pleading, 270 ; Mostyn V. Fabrigas, Cowper, 161, 1 Smith's Leading Cases ; Lienow v. Ellis, 6 Mass. 331 ; White v. Sanborn, 6 N. Hamp. 220; Birney v. Haim, 2 Lit- tell, (Ken.) 262. 2 Clark V. Scudder, 6 Gray, (Mass.) 122. It is obvious, moreover, that a judgment once recovered upon one of the covenants for title, may be pleaded in bar of any subsequent suit brought upon the same cause of action ; Osborne v. Atkins, 6 Gray, 423. ADVANTAGE OF COVENANTS FOR TITLE. 577 The liability of a covenantor will not be discharged by his bankruptcy, \\ith respect to such covenants as were not broken at that time. Thus in a late case in Maine, where the defendant, who had sold land with covenants against in- cumbrances and of warranty, pleaded his discharge as a bankrupt after the execution of the deed, it was held that the covenant against incumbrances, being broken as soon as made, the damages, whether nominal or otherwise, were ascertainable at that time and therefore provable before the commissioner, but that the eviction which constituted the breach of the covenant of warranty having taken place since the discharge in bankruptcy, the latter was no bar to the liability of the covenantor,^ and in a late case in Mississippi the law was held the same way.^ Where, however, the breach occurs before the defendant is actually discharged as a bankrupt, even although it may have happened after peti- tion filed, the bankruptcy may be pleaded in bar of the action.^ 1 Reed v. Pierce, 36 Maine, 460. unadjusted till all possibility of a In this case, it was urged that the breach should be barred by the statute claim upon the covenants came with- of limitations, for it could not before in that clause of the bankrupt law such time be known that they might which permitted persons having un- not arise. Such a position would be certain and contingent demands to entirely at variance with the provis- prove the same, but the Court held ion of § 10, which requires that all that the distinction between a con- proceedings in bankruptcy shall be tingent demand, and a contingency brought to a close within two years whether there ever would be a de- after the decree declaring the bank- mand, was well settled by both Eng- ruptcy, if practicable, for it would lish and American authority. " If lead to an indefinite postponement of the unbroken covenants in a deed, or the settlement of estates." the possible breach of the implied ^ Bush v. Cooper, 26 Mississippi, warranty of title in sales of personal 612. property were to be deemed claims ^ Jemison v. Blowers, 5 Barb. S. C. within the statute, then every grantee (N. Y.) 686 ;, and see the notes to or vendee might present his claim Mills v. Auriol, 1 Smith's Leading against the commissioner, and the es- Cases, tate of the bankrupt would remain 49 578 WHO ARE BOUND BY, AND WHO MAY TAKE Whether, the liability created by the covenant be joint, or several, or joint and several, obviously depends upon the terms in which it is expressed. Where an obligation is created by two or more, the general presumption is that it is joint,' and words of severance are required in order to con- fine the liability of the covenantor to his own acts.^ Cove- nants implied by operation of law, as from the word demi- serunt, are co-extensive with the interest granted, that is, joint, if a joint estate, and several if a several interest.^ Questions have at times arisen as to the liability of a married woman under covenants for title entered into by 1 Touoiistone, 375 ; Carleton v. Tyler, 16 Maine, 392; Donohoe v. Emery, 9 Metcalf, (Mass.) 67; Piatt on Covenants, 117, passim. Thus in Comings v. Little, 24 Pickering, (Mass.) 265, one of two tenants in common mortgaged his moiety there- of, and subsequently both joined in a conveyance of the whole estate to the plaintiff, with a covenant that it was free from all incumbrances, and the plaintiff having redeemed the mortgage, it was held that he could maintain his action against both cov- enantors. " It is objected," said the Court, " that the covenants of the defendants are to be taken distribu- tively, and that the action should have been brought against the mortgagor alone. But this objection cannot be sustained. The distinction is this. Where a man covenants with two or more jointly, and the interest and cause of action of the covenantees is several, each of the covenantees may bring an action for his par- ticular damage, notwithstanding the words of the covanant are joint. But where two persons covenant jointly with another, a joint action lies for the covenantee on a breach of the covenant by one of the cov- enantors only, because they are sure- ties for each other for the due per- formance of the covenant ; 1 Wms. Saunders, 154, note." 2 Thus, in the recent case of Evans V. Sanders, 10 B. Monroe, (Ken.) 291, where four heirs, "in considera- tion of $60, that is, $15 per share," conveyed certain land with a cove- nant " 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 Coleman v. Sherwin, 1 Shower, 79 ; S. C. 1 Salk. 137. Mr. Piatt, in his treatise on Covenants, remarks that " very few questions have been agitated whether covenants on the part of the covenanl(yrs have been joint, several, or joint and several ; the language has generally been suffi- cient to indicate the intention of the parties, and the nature of the cove- nant in this respect." The question as to the rights of joint covenantees, is, however, considered infra. ADVANTAGE OF COVENANTS FOR TITLE. ^79 her, jointly with her husband, in a conveyance of her estate. The general principle undoubtedly is, that a woman shall not be bound to answer in damages for any contracts made by her during coverture. But there was, it would appear, a distinction observed as to her covenants for title in a fine, it having been held in an early case, that if a husband and wife grant land belonging to the wife, by fine, with a cove- nant of warranty, an action will lie against her after the husband's death in case of the grantee's eviction.^ This decision may be accounted for by the high and solemn nature of a fine, being a proceeding of record, in the face of a court, whose Judges were supposed to watch over the rights of the wife.^ But on this side of the At- lantic, where the wife's interest is in general passed by a less solemn form of assurance, and even in England, since a recent statute has abolished fines, and substituted the more simple acknowledgment upon private examination which prevails in this country,^ the opinion seems to prevail that no rule of law exists by which a married woman can be bound to answer in damages by reason of the covenants for title entered into by her jointly with her husband, although I Wotton V. Hele, 2 Saunders, 180 ; by them ; " though in this case it may S. C. 1 Mod. 291. Although the be said that inasmuch as the wife case was stated to be one of the first was at liberty after her husband's impression, the Judges " all thought death to disaffirm the lease if she had that the action will lay against the thought proper to do so, yet that she defendant on her warranty in the reafiirmed it by her acceptance of fine, although she was covert baron, rent, and this point was, in the argu- and they did not make any scruple ment in Wotton v. Hele, " agreed by of it." In Greenwood v. Tiber, Cro. the counsel on both sides," so that Jac. 563, " all the reservations, cov- this ease can hardly be said to be an enants, and warranties," comprised authority for the broad assertion that in a lease made by husband and a wife will be bound by her cove- wife, of lands of the latter, were held nants for title, good after the death of the husband, ^ 2 Inst. 515» and acceptance of rent by the wife, 3 3 & 4 William IV. c. 74. " and the lessees and lessors bound 580 WHO ARE BOUND BY, AND WHO MAY TAKE her estate may have passed by a proper acknowledg ment 1 " The doctrine," says Chancellor Kent (2 Comm. 167), "that a wife can be held bound to answer in dam- ages after her husband's death, on her covenant of warranty, entered into during coverture, is not consid- ered by the Courts in this country to be law ; and it is certainly contrary to the settled principle of the com- mon law, that the wife was incapable of binding herself by contract ; " Sumner v. Wentworth, 1 Tyler, (Verm.) 43 ; Sawyer u. Little, 4 Vermont, 414 ; Wadleigh v. Gaines, 6 N. Hamp. 1 7 ; Fowler v. Shearer, Id. 21 ; Colcord v. Swan, 7 Mass. 291 ; (see Chambers v. Spence, 5 Watts, (Penn.) 406 ) ; Whitbeck v. Cook, 15 Johns. (N. Y.) 546 ; Nash V. Spofford, 10 Metcalf, (Mass.) 192; Aldridge v. Burlinson, 3 Blackford, (Ind.) 201. " She may be influenced or persuaded," said Parsons, Ch. J., in Fowler u. Shearer, " by her hus- band to execute the deed with him, knowing its effect as an alienation ; but she may not know the nature or effect of the covenants contained in it. And to hold her liable on the covenants cannot be necessary to the conveyance nor be beneficial to her family ; but may be greatly to her prejudice." The rule, therefore, has never extended to make her liable on the covenants in the deed, except, perhaps, so far as they may operate by way of estoppel, and even this latter effect has been frequently denied ; Wadleigh v. Glines, 6 N. Hamp. 18 ; Lowell v. Daniels, 2 Gray, (Mass.) 1 G8 ; Jackson v. Vanderhey- den, 17 Johns. (N. Y.) 167 ; Martin V. Dwelly, 6 Wendell, (N. Y.) 9 ; Dominick v. Michael, 4 Sandford's Ch. (N. Y.) 424 ; Carpenters. Scher- merhorn, 2 Barb. Ch. (N. Y.) 314 ; Griffin v. Reynolds, 17 Howard, (U. S.) 611 ; Den v. Desmarest, 1 Za- briskie, (N. J.) 541 ; Schaffner v. Grutzmacher, 6 Clarke, (Iowa,) 187; see supra, p. 433. In the early case in Virginia, however, of Nelson v. Harwood, 3 Call, 394, the specific performance of a wife's covenant for further assurance was decreed, on the ground that as all objections arising from supposed want of free- dom of will on the part of the wife are removed by her private examina- tion, her deeds are as binding upon her as if she were a feme sole. But it seems not to have been generally considered, even supposing the case of Wotton V. Hele to be sound law (which we have no right to doubt when we consider the solemn nature and the peculiar effect of a fine at common law,) that a similar effect was to be given to the more modern acknowledgments. The local statutes regulating these in the different States generally, allow, it is believed, such acknowledgments to have the same force and effect as to passing the estate as a fine, but not the same force and effect generally. If in any States these acknowledgments are en- dued with this sweeping efficacj', the doctrine held in Wotton v. Hcle would appear to give effect to the wife's cov- enants for title. The effect of Nel- son V. Harwood was, however, sub- sequently completely destroj-ed by a legislative enactment in that State to the effect " that no covenant or war- ranty contained in any deed executed ADVANTAGE OF COVENANTS FOR TITLE. 581 It has been mentioned, in a preceding chapter, that although, as a general rule, equity will refuse, on behalf of a covenantee, to decree the specific performance of covenants for title, and will leave him to his remedy at law, yet that, in exceptional cases, relief will be granted upon principles of quia timet} On the other hand, there have been cases in which, upon the application of a covenantor, a somewhat similar jurisdiction has been invoked with suc- cess.' Thus, in a recent case in Connecticut,^ the complainants had sold a large lot of ground in the city of Hartford, with covenants for the title. The purchaser had, however, in hereafter by any feme covert stall in any manner operate upon her or her heirs further than to convey effectu- ally from such feme covert any right of dower or other interest in real es- tate, which the said feme covert may he entitled to at the date of such deed," Act of Dec. 20, 1814 ; re- enacted in 1819, and in substance in 18i9, c. 99, § 7 ; Code of Virginia, 514 ; and similar statutory provisions exist in the States of Illinois, Indi- ana, Michigan and Missouri. In Delaware, the' statute of conveyan- ces (Revised Laws of 1829,) declared that "such deed shall not bind her to any warranty except a special warranty against herself and her heirs, and all persons claiming by or under' her ; " and in the revision of 1852, these words have been re-en- acted, with the addition, " and no covenant on her part, of a more ex- tensive or different effect in such deed, shall be valid against her." It may be proper that such covenants should enure by way of estoppel, and it is possible, the Delaware statute may have meant no more ; but by 49* thus placing a restriction upon the covenants of a, feme covert, the infer- ence would seem to arise that the covenants were deemed of some va- lidity, which seems to be denied in most of the States. 1 Supra p. 154 et seq. 2 In McKinney v. Watts, 3 Mar- shall (Ken.) 268, a covenantor filed a bill for relief against a judgment obtained against him, at law, upon his covenants, and for the quieting of the title, which was sustained, prin- cipally, it would seem, on the ground of the purchaser having received, on his eviction by the holder of the par- amount title, allowance, under the occupying claimant law, for improve- ments, for which allowance the com- plainant had received no credit in the judgment recovered against him. In the subsequent case of Field v. Snell, 3 B. Monroe, (Ken.) 217, this case was approved, but the vendor having failed in his proof, the decree entered below in his favor, was re- versed. 3 Chipman v. City of Hartford, 21 Connect. 488. 58£ WHO ARE BOUND BY, AND WHO MAY TAKE addition to the covenants, required from the vendor security to save him harmless from a lien, which the city claimed to have against the property, for paving done in front of it, some years before, and the vendors then filed a hill against the city, praying that it disclose the grounds of the claim and the amount of the lien, if it existed, and upon payment thereof, release the premises therefrom ; or, if invalid, that the city be enjoined from prosecuting it. Upon reference to a Master, he reported that the lien was invalid ; where- upon it was urged, on behalf of the city, that if the lien were void on its face, equity would neither interfere to set it aside, nor enjoin an attempt to enforce it ^ — that the com- jilainants had an adequate remedy at law for the contract price, to which, if the lien were invalid, there could be no defence — and that the plaintiffs, having sold and conveyed the property, had no longer any interest in it, which equity could protect. But these objections were overruled by the Court, and a decree entered for the complainants.^ 1 See passim, 2 Story's Eq. Jurisp. the plaintiflfs had a right to suppose § 700 a, for the distinction between from some other cause or reason, than voidable instruments whose existence the records here produced, disclosed, has a tendency to cast a cloud upon This claim, whether legally existing a title, and those of which the illegal- or not, worked an injury to the plain- ity appears upon their face, and can titFs, by creating such a doubt as in admit of no doubt. fact to cause purchasers under them 2 In answer to the first objection, to withhold payment. In this state the Court held, that although it had of things, the plaintiffs could, indeed, been decided in some cases, that have sued Smith and Brainard, and where the mere object of the bill was have been met with some defence, or the cancellation of an instrument by an application for an injunction void on its face, equity had refused against their further proceedings, and to interfere, yet that this case was dis- thus become involved in an expen- tinguishable from those. " This bill sive litigation in the dark ; or they does not ask for the bare cancellation could ask, as they have done, to have of a deed. The city of Hartford had this cloud cleared away. . . . Aside instituted certain proceedings, which, from any discovery sought, this bill they claimed, had resulted in fixing is not merely quia timet, but the a lien upon the property of the plain- claim of the defendants is working a tiffs ; it insisted upon the lien, and present injury, by actually prevent- ADVANTAGE OF COVENANTS FOR TITLE. 583 So, in a late case in Georgia, the complainant, having sold land with a covenant of warranty, averred in his bill, that the defendant was combining with a prior vendor of the land, whose deed had contained no covenants, to set up a claim by reason of the defective probate of that deed, had pur- chased the claim for a nominal consideration, and had brought an ejectment for the land in the name of the assignor, and prayed that the assignment of the claim might be declared fraudulent and be cancelled, or that the defendant be decreed a trustee for the purchaser, and quiet his title by conveying ing purotasers from making payment of the stipulated price to the plain- tiffs, by reason of the cloud upon their title ; 2 Story's Eq. § 700. In the case of Simpson v. Lord Howden, 3 Mylne & Craig, 99, an action at law ■was pending, to try the same ques- tion ; and in the case of PiersoU v. Elliot, 6 Peters, 98, the same ques- tion had been already determined; but here the plaintiffs were left in the dark and in doubt ; because the defendants still insisted upon their lien, and yet instituted no means to enforce it. They have left the plain- tiffs to the expense of determining their rights, only in this way, and by this bill ; and now, not until the county court, upon this hearing, has decided that no such incumbrance exists, the defendants very ungra- ciously say, yes, this is true, and so obviously true that the plaintiffs have never been in danger, and have had no just occasion to bring us into a court of equity. Indeed, the defence is, that as, after an expensive and long-defended application in equity, the plaintiffs have succeeded in es- tablishing their claim, this is the very reason why they are not entitled to relief. If the defendants had demur- red to the bill at first, acknowledging their want of a lien, their defence would have appeared better." In answer to the objection that the plain- tiffs had a remedy, at law, against their purchasers, it was said, that apart from the ground, that such an objection, being one to the jurisdic- tion, should have been made at an earlier stage, yet that it had no foun- dation in this case. " Besides, the plaintiffs had no remedy, at law, against these defendants. We are not aware of any case, which decides, that, if the plaintiff has an equity against the defendant, a court of equity loses its jurisdiction, because there may be a remedy, at law, at the election of the party, against a stranger or some other person.'' And in answer to the objection, that the plaintiffs, having conveyed the land, had no interest which equity could protect, it was said, that although they did not own the land itself, still they had an essential interest in the question of the title, by which the purchasers under them held the land, by reason of the covenants for title in their deeds. It was obvious, that their interest was as direct, as if they then held the land. 584i WHO ARE BOUND BY, AND WHO MAY TAKE to him, and that the ejectment be enjoined. Upon demur- rer, the Court below dismissed the bill, but this was reversed on error, and it was held that the complainant was entitled to the relief prayed for.-^ In a recent case in New 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 his covenants, could, singly, maintain a bill which sought to quiet the possession by an injunction merely, yet it was held that where other relief was sought, and an account was to be stated between the covenantor and the defendant, the bill could be sustained. So, in a late case in Mississippi, the complainant had bought at sheriff's sale certain land which had been entered by the debtor at the land-office. He subsequently sold this land with covenants for title to one 1 Redwine v. Brown, 10 Georgia, 311. The argument, in behalf of the defendant, was chiefly directed to the point that the purchaser from the complainant could maintain no action on the covenants of any but his own immediate vendor, as to which, how- ever, the law has long been well set- tled, see supra, p. 357, and the Court said, in conclusion, " We are well satisfied, that in case the present owner should lose this land, he would be entitled to go back upon the com- plainants, upon the covenant of war- ranty to Dominick, and that, conse- quently, he is rectus in curia, as complainant in the bill, seeking to have the incumbrance on the title removed." In the recent case of Bush V. Keller, 2 Carter, (Ind.) 79, a bill was filed by a vendor, to pre- vent his vendee from suing on the covenants for title, or from setting them up by way of defence to pay- ment of the purchase-money, on the ground of mistake in the original pre- paration of the deed, which, it was alleged, was to be only a quitclaim deed, but in which a warranty had been inserted by mistake. The Court below decreed for the complainant, but this was reversed on error, on the ground that the evidence had by no means substantiated the charge of mistake. In Taylor v. Gilman, 25 Vermont, 411, the Court sustained a bill filed by a covenantor to restrain his covenantee from suing on the cov- enants for title, not on the ground of accident or mistake in the insertion of the covenants themselves, but of fraud on the part of the latter in seeking to enforce them in opposi- tion to a distinct agreement between the covenantor and himself; see su- pra, p. 130. See as to the reforma- tion in equity of the covenants for title, supra, p. 129. i 2 Brooks V. Fowle, 14 N. Hamp. 248. ADVANTAGE OF COVENANTS FOR TITLE. 585 against whom an ejectment was brought by parties claim- ing under patents from the Government issued to them by- virtue of alleged prior assignments to them by the debtor, and the complainant filed a bill against these parties for a discovery of the date of the alleged assignments, and for an injunction to restrain their further proceeding in their suits against his vendee. On demurrer, the Court below dis- missed the bill, but this was reversed on appeal, the Court being of opinion that the complainant, being bound to pro- tect the title of his vendee, could avail himself of any remedy of which the latter could avail himself; that it being settled in that State, that if the lands had been validly sold under execution before the patent had been issued, the complainant had acquired a good title, he was entitled to a discovery of the date of the alleged assignment, and coming into equity for one purpose, he could maintain his bill for complete relief.^ But a court of equity will not draw to itself a jurisdic- tion of which courts of law have cognizance, unless there be some mistake, accident or fraud, which would deprive the party of a defence in that tribunal ; and in a recent case in Wisconsin, a vendor who had sold land with covenants for title, filed a bill against his vendee, (who had sued him upon those covenants,) and the heirs of a prior vendor of the land, alleging the loss of the deed from that vendor, and praying that the latter might be perpetually enjoined from setting up any title to the premises — that the purchaser be decreed to have no cause of action against the complainant by reason of the supposed defect of title — and that he be en- joined from prosecuting his suit at law. But this bill was dismissed, the Court considering that in effect it was asked to decree a nonsuit in a suit at law ; that there had been no fraud, accident or mistake which would make it against con 1 Huntingdon v. Grantland, 33 Mississippi, 454. 586 WHO ARE BOUND BY, AND WHO MAY TAKE science for the purchaser to maintain his action ; that it was not asserted that the loss of the deed endangered the com- plainant's defence to that suit, and that proof of that loss could be as well supplied in a court of .law as in equity.^ Second. Of the Heir. — The liability (whether immedi- ate or ultimate) of the heir by reason of his ancestor's cove- nants for title, depends, in this country, to a great extent, upon the statutory provisions adopted in the different States, for making the real estate of a decedent liable for the pay- ment of his debts, although as respects the source of this liability, there is now no difference either in England or here, between the covenants for title and any other specialty con- tracts. The examination of this subject strictly forms no part of the province of this work, but a general reference to its doctrines may at least put the student upon the track of more satisfactory information. In order to fasten a liability on an heir, there were two requisites necessary at common law. First, that he be ex- pressly named ; ^ so that in an action against him as heir, it ' Rogers v. Cross, 3 Chandler, no party in esse who could be called (Wise.) 34. on to avouch the title. It was an 2 Co. Litt. 209 a. In the recent unusual covenant, but that could not case of Rufner v. M'Connel, 14 lUi- help the plaintiff. The presumption nois, 169, the vendors covenanted was that the grantors refused to be- that their heirs and executors would come personally responsible for the warrant and defend the premises, and failure of the title, but were willing it was held that no action of cove- to charge their estates in the hands nant would lie against the cove- of their legal representatives, and nantors themselves. The covenant, that the grantee preferred to accept it was said, exempted the grantors such a covenant rather than have from personal liability, but bound none at all. It might be, however, their descendants in respect of the that it was the real intention of the estate that might be cast upon them, parties that the grantors should war- It postponed the remedy for a failure rant and defend the title, and that a of the title until the decease of the mistake was made in the preparation grantors or one of them, and until of the deed, but that could only be such an event transpired, there was verified in a court of equity, {svpra, ADVANTAGE OF COVENANTS FOR TITLE. 587 was necessary that it should be averred that he was named m and bound by the obligation ; and this, as we have seen, was the rule as to the ancient warranty.^ In the second place, it was necessary that the heir should have assets by descent sufficient to meet the demand, and he was bound by the warranties, covenants, or other specialties of his ances- tor, only to the extent of these assets.^ A specialty creditor acquired, however, additional means of recompense by the death of his debtor ; for although, by the old rule of the common law, during his lifetime no recourse whatever could be had to his lands by means of execution, and the statute of Westminster the Second,^ gave but a right to have one half of them extended or delivered under a writ of elegit, yet after the death of the debtor, an action would lie against the heir upon the specialty debts, by means of which all the assets by descent were liable to be taken in execution,* p. 129), which being done, the action might be brought against the grantors, and breaches assigned on the cove- nant. 1 Brooke's Abr. " Garranties," pi. 89; supra, p. 469. 2 Buckley «. Nightingale, 1 Strange, 665, 2 Blacks. Comm. 243. Thus it was obviously held in Hart v. Thomp- son, 3 B. Monroe, (Ken.) 485, that heirs of their mother's estate could not be made to pay, out of it, dama- ges caused by a breach of their father's covenants for title, and the law was held the same way in Urqu- hart V. Clark, 2 Randolph, (Va.) 549. See also Piatt on Covenants, 450, and supra, p. 395 et seq. In the recent case of Dickinson v. Hoomes's Admr. 8 Grattan, (Va.) 410 (noticed as to another point, supra, p. 506), the Court admitted that assets which had descended to the heir in Kentucky could not be noticed in an action against that heir in Virginia, on a bond of his ancestor, but decided (on the authority of that familiar class of cases of which Penu V. Lord Baltimore, 1 Vesey, Sen. is at the head), that a court of equity would, upon proof of such assets, in the exercise of its jurisdiction in per- sonam, and where the case was already before the Court for another pur- pose, on proof of such assets, decree an account thereof by the heir, to- wards the satisfaction of a covenant of warranty made by the ancestor. In Beall v. Taylor, 2 Grattan, (Va.) 532, it was held that a judgment against heirs in another State, where there were no assets, did not merge the covenants, and that the plaintiff might sue the heirs in Virginia, where the assets were. 3 13 Edward I.e. 18. 4 Sir Wm. Harbert's case ; 3 Coke, 12 a; Davy v. Pepys, Plowden, 441. 588 WHO ARE BOUND BY, AND WHO MAY TAKE The result was, that the bond creditor ha^, after his debtor's death, a greater security than the judgment cred- itor ; for the latter, by reason of his judgment, charged the heir only as tenant of the land. No personal action would lie against the heir on such judgment, and the only remedy of the creditor was by scire facias, to have execution of the lands, which, as has been seen, under the statute of West- minster he could have but to a limited extent,^ as the death of the ancestor did not alter the nature of the execution any more than it did the nature of the debt,^ while on the bond debts, the creditor could, at his election, by a special judg- ment, have execution upon all the lands in the possession of the heir. A zvarrantia chartce or a voucher, being essentially real actions, could of course be brought only against the heir, but upon covenants, as upon other specialties, the creditor might sue either heir or executor at his option, or bring separate actions against them at the same time,^ so that an heir could not plead in an action brought against him, that there was an executor who had assets.* -Nor was there, at common law, any distinction between bond debts and covenants, either as to the liability of the heir to be sued upon them, or the right of the covenantee, to come in upon the assets as a specality creditor ; ^ nor, consequently, between covenants for title and other special- 1 Harbert's ease, supra ; Bowyer 5 Plumer v. Marchant, 3 Burr, V. Rivitt, W. Jones, 87. 1384; Godolp. Orp. Leg. part 2, c. a Stileman v. Ashdown, 2 Atkyns, 28 ; Went. Ex. 146 ; Dyke v. Sweet- 608. in7, which expressly includes covenants as well as debts, and also gives an action against the devisee alone where there is no heir.^ In the recent case of Morse v. Tucker,^ the question presented was of general application. A testator cove- nanted with his lessee for quiet enjoyment, and afterwards devised his real estate, subject to and charged with the pay- ment of his debts. After the death of the lessor the lessee was evicted, and brought his action against the executors of the lessor, who having pleaded j»feHe admiriisiravit, the plain- tiff took judgment of assets quando acciderunt, and had his damages assessed upon writ of inquiry, and then filed a bill against the devisees of the lessor for satisfaction of these damages out of the real estate devised. It was contended, on behalf of the devisees, that as the damages were entirely liquidated at the death of the testator, they could not, under the decisions in Wilson v. Knubley and Farley v. Briant,* constitute a debt within the meaning of the will, but Vice- Chancellor Wigram declared that he would be inclined, in the absence of authority, strongly to lean against that con- struction of the will vv^hich would exclude the claim in ques- tion. He did not agree in the observation made at the bar, that claims such as these, were, in a moral point of view, 1 An enactment caused by the de- and the Vice-Chancellor held that cision in Wilson v. Knubley. the devisees were liable to pay it, on 2 A convenient reference to these the ground that the sums to be re- statutes may be had in the notes to covered were fixed and certain, Jefferson v. Morton, 2 Saunders, 8 a, which, it was said, distinguished the and in those to Silk «. Prime, 2 Lead- case from Wilson v. Knubley, and ing Cases in Equity. Farley v. Briant. It was, therefore, 3 5 Hare, 79. urged on behalf of the devisees in * As also the case of Jenkins v. Morse v. Tucker, that when the Briant, 6 Simons, 603, where the amount was not thud fixedj beinf testator granted an annuity, and unliquidated damages, it could not bound himself by covenant to pay be said to be a debt, it. It fell into arrear after his death, ADVANTAGE OF COVENANTS FOR TITLE. 599 distinguishable from debts due at the death of the testator. If a person sells an estate for its full value, and, in consid- eration of that value being paid to him by the purchaser, by covenant guarantees the title, he could not agree that such vendor was justified in enriching his personal estate at the expense of the purchaser, and afterwards disposing of his property by will so as to make his guarantee valueless, though the title to the property should turn out good for nothing. He thought, moreover, that the case was ruled by the authority of the Earl of Bath v. the Earl of Brad- ford,^ and also by that of Lomas v. Wright,^ where Vice- Chancellor Leach had held, that persons entitled to damages for a breach of the covenant for quiet enjoyment had a right to come in as creditors upon the proceeds of property sold, under direction in a will, for the payment of debts ; and the case was referred to a Master to inquire into the amount of damage sustained by their eviction.^ Fourth. Of the Executor or Administrator. — The lia- bility of an executor differs from that of the heir, in that while the latter is not bound by his ancestor's covenants, unless named in them, a contrary rule prevails as to the former.* Nor does any distinction prevail between the lia- 1 2 Vesey, Sen. 587, supra, p. 589, provided by tlie testator for the pay- note, ment of debts. 2 2 Mylne & Keen, 775. * " And therefore if a man bind 3 The plaintiffs, however, being himself by obligation or covenant to volunteers (claiming under a volun- pay money, or to do any such like tary settlement for illegitimate chil- thing, and do not bind his executors dren, see supra, p. 159), were held or administrators by name, in this not entitled to compete with simple case the executor or administrator contract creditors for valuable con- may be sued and may be charged as sideration, but, as against the devi- far forth as if they were named ; " sees of the debtor, they were held Touchstone,482 ; Brooke's Abr., Cov- entitled to stand in the place of mort- enant, pi. 12; Wentworth's Execu- gagoes who had exhausted the fund tor, c. 11, pp. 239, 243, &c. Nor is 600 WHO ARE BOUND BY, AND WHO MAY TAKE bility of an executor upon covenants broken after the testa- tor's death, and those broken before that event.^ this liability of the executor confined, as the above quotation might seem to imply, to mere obligations to pay money, but it extends to any " obli- gation, contract, debt, covenant or other duty," Wheatley v. Lane, 1 Saunders, 216, note; Com. Dig. Cov- enant, C. 1 ; Plumer v. Marchant, 3 Burrow, 1380; Siboni u. Kirkman, 1 Mees. & Welsby, 419, except such as are of a particular personal charac- ter. Instances of these may be found in 2 Williams on Executors, 1469, and Wentworth v. Cocke, 10 Adolph. & Ellis, 42. It is sufficient to say that covenants for title are not in- cluded in these exceptions. 1 In Perrot v. Austin, Cro. Eliz. 232, it is said to have been resolved that if one covenant that his execu- tors shall pay ten pounds, no action •will lie against them, for it was no debt of the testator, and therefore could not survive. But Lord Mans- field said, in Plumer v. Marchant, 3 Burrow, 1880, that this was an ex- traordinary case ; and the contrary has been recently held, in Randall v. Rigby, 4 Mees. & Welsby, 130, and Ex parte Tindall, 8 Bing. 402. So with respect to the covenants for title ; in Wells V. Fydell, 10 East, 315, one who had received a covenant for quiet enjoyment was evicted after the death of the covenantor, and no Pull. 158, which might be thought authorities against this position, will, on examination, be found to have been decided upon another ground ; supra, p. 384. In the very re- cent case of Williams v. Burrell, 1 Com. Bench, 401, which was well and elaborately argued, an action of covenant was brought against exec- utors, for a, breach, after the testa- tor's death, of a warranty entered into by him, and no question was made, on the argument, of the lia- bility of the executor depending upon the breach happening before or after the testator's death ; and from a remark made by Maule, J., in the course of the argument, the point seems not to have been over- looked, as he said : " Here the heir being named and the executors not, it may be contended that the latter were intended to be excluded." The case, however, was argued and de- cided upon other grounds, and Tin- dal, Ch. J., said, " Upon principle and authority we think this an ex- press covenant for quiet enjoyment, and consequently that the defendants are liable thereon as executors of the covenantor ; " see this case, supra, p. 485, note. In the recent case of Mc- Clure V. Gamble, 3 Casey, (27 Penn. State R.) 290, the Court said, " This is an action on a covenant of war- question seems to have been made of ranty in whicli the grantor cove- the liability of his executor, although the covenant had not been broken in the lifetime of the testator. The cases of Swan v. Stranshan, Dyer, 257 a. Proctor v. Johnson, 2 Brown- low, 214, Adams v. Gibney, 6 Bing. 656, and Andrew u. Pierce, 1 Bos. & n anted ' for himself and his heirs,' and it is argued that under such a covenant the executors are not bound, but the heir only. It is thought be- cause the grantor expressly included his heirs in the covenant, he has im- pliedly excluded his executors, but ADVANTAGE OF COVENANTS FOR TITLE. 601 Fifth. Of the Assignee. — The liability of an assignee upon covenants for title entered into by his assignor, is one which can never arise where the deed which contains the covenants conveys an estate in fee-simple ; as in such case the land passes at once, and entirely, from the possession of the vendor, who has, therefore, no estate to transfer to a subse- quent purchaser. But the question of an assignee's liabil- ity may arise where the conveyance is of a leasehold estate, and the covenants are then held binding upon the assignee of the reversion.-' ttis does not follow, for by binding himself he binds his estate, so far as it is represented by his executors, whereas the heir could not be bound ■without express terms, and this ac- cords with Williams v. Burrell, 1 Com. Bench, 402. And if the heir at common law is the only one found as heir by such a covenant, the law would lean in favor of equality of contribution by preferring the action against the executors or administra- tors." In Hovey v. Newton, 11 Pick- ering, (Mass.) 421, it was held that damages for a breach of the cove- nant for quiet enjoyment, which had accrued both before and after the covenantor's death, could be recov- ered in one and the same action against his administrator, the Court saying, " The whole damage sus- tained by the plaintiffs from the breach of the covenant of the intes- tate becomes a debt against his es- tate, for which the defendant is an- swerable." And it is well settled that, in the absence of local statutes to the contrary, a covenant for quiet enjoyment, for further assurance, or of warranty, is in no respect differ- ent, as to the liability which it im- poses, from any other specialty debt, 51 as for instance, a covenant to pay a certain sum of money, which though the time of payment might be subse- quent to the death of the covenantor, yet would create a valid claim against his executor. MHiere, however, in the recent case of Collins v. Crouch, 13 Queen's Bench, 542, an action was brought against an executrix of an assignee upon a covenant to perform certain covenants in a lease and indemnify the assignor for the breach of any of them, the defendant pleaded plena- adminisiravit, and showed at the triai that the entire assets, including ,the- consideration-money, had, before the breach complained of, been applied to the payment of simple contract debts, and it was held that the e.xec- utri.x was not bound to retain the proceeds of such sale for the pur- pose of indemnifying against future breaches of covenant. See also Wyse V. Snow, 5 Irish Jur. 87 ; Wild- ridge V. McKane, 1 Molloy, 122. 1 SeeThursby v. Plant, 1 Saunders, 237, and notes. It has been held other- wise, however, where the covenant is one of indemnity merely, and assigns not named in it; Doughty v. Bowman, 11 Queen's Bench, 452. In the re- 602 WHO ARE BOUND BY, AND WHO MAY TAKE Having thus considered the liahilities, we next approach the subject of the rights arising under the covenants for title. First. Of the Covenantee. As the covenants for seizin, for right to convey, and against incumbrances, are, in this country, as a general rule, held to be broken as soon as they are made,^ it follows that immediately upon the ex- ecution of the deed which purports to convey the estate, a right of action upon these covenants enures to the party who has received them, upon which his damages will be real or nominal, according to the injury which the defective title has visited upon him.'"' It would also seem to follow, that after the lapse of twenty years from the execution of the deed, the common- law presumption that these covenants had been satisfied or released would arise,^ even if they should not come within any local statutory enactment upon the subject.* With re- spect, however, to the covenants for quiet enjoyment, for further assurance, and of warranty, a statute of limitation, cent case in New York of Buck u. in which last case it was held that Bininger, 3 Barbour's S. C. 403, it accord and satisfaction was the was obviously held that the purcha- proper plea upon which to found ser of a remainder, expectant upon such a defence, the determination of a lease for life, 4 Clark v. Swift, 3 Metcalf, (Mass.) in which was a covenant for quiet 390 ; Rev. Stats, of Massachusetts, c. enjoyment, could do nothing to inter- 120, § 7; Bird v. Smith, 3 English, fere with the enjoyment of the life (Ark.) 368; Webber v. Webber, 6 estate by the tenant, and the case Greenleaf, (Me.) 138; Pierce u. John- seems to have been put on the ground son, 4 Vermont, 255. In the late of preventing circuity of action ; but case in Missouri, however, of Cham- the more natural reason would seem bers v. Smith, 23 Missouri, 174, it to be that the purchaser simply took was held that the statutory covenant the estate subject to the tenancy. for seizin implied from the words 1 See supra, p. 342 et seq. " grant, bargain and sell " was not 2 Svpra, pp. 73, 134 et seq. barred by reason of not having been 3 Stewart v. West, 2 Harris, (14 presented within three years from Penn. State R.) 338, 339 ; Heath v. the death of the covenantor, as that Whidden, 24 Maine, 383 ; Jenkins covenant was, in that State, held to V. Hopkins, 9 Pickering, (Mass.) 544, run with the land. See supra, p. 341. ADVANTAGE OF COVENANTS FOR TITLE. 603 expressed as such statutes usually are, would not begin to run until there had been an actual breach, and of course the presumption would not arise until twenty years from that period.^ The questions arising as to covenants being joint or sev- eral, have already been noticed as respects the liabilities of the covenantors.'^ It remains, however, to consider them with respect to the rights of the covenantees. It has been settled from an early day that covenants for title (and the same rule applies equally to all covenants), are to be construed as joint or several, according to the interest taken by the parties to whom they are made, or in whom the right to take advantage of them has vested. Thus in Slingsby's case,^ which is generally cited as the leading authority, where the defendant granted to four, although he covenanted " with each and every of them " that he was seized in fee, yet it was held that all must join in an action on the covenant,* and this 1 Heath v. Whidden, 24 Maine, the covenant several in respect of 383 ; Stewart v. West, 2 Harris, their several interests. As if a man (14 Penn. State K.) 338 ; 9 Jarman's by indenture demises to Ablackacre, Conveyancing, 402. to B whiteacre, to C greenacre, and 2 Supra, p. 578. covenants with them et quolibet eorum 3 5 Coke, 18. that he is lawful owner of all the said 4 " It appeared by the plaintiff's acres, in that case, in respect of the own showing in his declaration, that said several interests, by the said the plaintiffs only cannot maintain words et cum quolibet eorum, the cove- an action of covenant, but the other nant is made several ; but if he de- covenantees ought to have joined in mises to them the acres jointly, then the action with them, notwithstanding these words cum quolibet eorum are these words et ad et cum quolibet et void, for a man by his covenant, (uu- qudlibet eorum, for as to these words less in respect of several interests,) this difference was agreed, when it cannot make it first joint and then to appears by the declaration that every make it several by the same or the of the covenantees hath, or is to have like words cum quolibet eorum, for al- a several interest or estate, there, though sundiy persons may bind when the covenant is made with the themselves et quemlibet eorum, and so covenantees, et cum quolibet eorum, the obligation shall be joint or several these words cum quolibet eorum, make at the election of the obligee, yet a 604i WHO ARE BOUND BY, AND WHO MAY TAKE principle has been since recognized in many other cases. -^ Mr. Preston, however, expressed an opinion that by express words, clearly indicative of the intention, a covenant might be joint or several, notwithstanding the nature of the inter- est,^ and some dicta in recent cases in the Exchequer, in approval of this,^ have been sometimes considered as caus- ing a difference of decision between that tribunal and the Queen's Bench.* On examination of the cases themselves, covenant in language purport to be joint and several.' With great defer- ence, however, the correct rule is, that, by express words, clearly indi- cative of the intention, a covenant Dfiay be joint, or joint and several, to or with the covenantors or covenan- tees, notwithstanding the interest is several ; so they may be several, al- though the interests are joint. But the implication or construction of law, when the words are ambiguous, or are left to the interpretation of law, will be, that the words have an import corresponding to the interest, so as to be joint when the interest is joint, and several when the interest is several, notwithstanding language which, under different circumstances, would give to the covenant a diiferent effect. The general rule proposed by Sir Vicary Gibbs, and to be found in several books, would establish that there was a rule of law too powerful to be controlled by any intention, 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 opin- ion expressed by Mr. Preston. The covenant was to and with Jonathan Hopkinson, his heirs, &e., " and also a man cannot bind himself to three and to each of them, to make it joint or several at the election of several persons, for one and the same cause, for the Court would be in doubt for which of them to give judgment, which the law would not suffer." 1 Eccleston v. Clipsam, 1 Saunders, 153 ; Spencer v. Durant, Comber- bach, 115; Saunders v. Johnson, Skin- ner, 401 ; Scott V. Godwin, 1 Bos. & Pull. 67 ; Anderson v. Martindale, 1 East, 497; Lane v. Drinkwater, 1 Crompt. Mees. & Rose. 599 ; Brad- burne v. Botfield, 14 Mees. & Wels- by, 559 ; Foley v. Addenbrooke, 4 Queen's Bench, 197 ; Hopkinson v. Leo, 6 Id. 964; Carthrae v. Browne, 3 Leigh, (Va.) 98 ; Comings v. Little, 24 Pickering, (Mass.) 266 ; supra, p. 578. 2 Touchstone, 166 (Preston's ed.) The opinion thus expressed is as fol- lows : " On the subject of joint and several covenants, that eminent law- yer, Sir Vicary Gibbs, assumed that covenants must necessarily be joint or several, according to the interests. The language was, ' Wherever the interest of parties is separate, the action may be several, notwithstand- ing the terms of the covenants on which it is founded may be joint ; and where the interest is joint, the action must be joint, although the ADVANTAGE OF COVENANTS FOR TITLE. 605 however, it will be found that there is no real conflict of authority,^ and the result of all the cases may perhaps be thus stated : where the interest is joint, the covenant can never be joint and several, that is, the covenantees can never have the option whether they shall sue jointly or severally, distinct covenant with and to Ann Caroline Hogg, her heirs," &c., and Lord Denman, after referring to the often-affirmed case of Anderson v. Martindale, 1 East,49 7, (where there was a covenant with J. Anderson to pay him an annuity, and also to and with E. Wyatt to pay the said an- nuity to Anderson, which Lord Ken- yon held, on the authority of Slings- by's case, to be a joint covenant, say- ing, " the covenant to both was for the same thing, and though the benefit was onlj' to one of them, yet both had a legal interest in the performance of it, and therefore the legal interest be- ing joint during the lives of both, on the death of one, it survived to the other,") said, " The language in An- derson V. Martindale, as entirely con- fines the covenant to the plaintiff, and makes another separate covenant with E. Wyatt, as any words not directly exclusive can make it. In Slingsby's case, the covenant was with certain persons named ' ei ad et cum quolibet et qualibet eorum.' No words can be stronger to give the plaintiff an op- tion to sue all jointly or each sepa- rately. Yet in both, the Court held that by reason of the joint interest in the subject-matter of the suit, as disclosed in the deed itself, the action must be joint. We think it would be waste of time to argue that the words ' as a distinct covenant ' do not furnish any stronger inference of the intention to exclude, than those just cited from those well-known 51* cases. If they are still law, the pres- ent case must be decided against the plaintiff. We see no ground for doubting whether they are." 1 Indeed, in the case of Bradburne V. Botfield, 14 Mees. & Welsby, 659, Mr. Baron Parke thus refers to the strictures by Lord Denman, in Hop- kinson v. Lee, supra, of the remarks made by Lord Abinger and himself in Sorsbie v. Park. " The Court of Queen's Bench," said the learned Baron, " in the case of Hopkinson v. Lee, have supposed that Lord Abin- ger and myself had sanctioned some doctrine at variance with the case of Anderson v. Martindale, and Slings- by's case, which it was far from my intention, and I have, no doubt from Lord Abinger's, to do ; it being fully established, I conceive, by those cases, that one and the same covenant can- not be made both joint and several with the covenantees. It may be fit to observe, that a part of Mr. Pres- ton's explanation, that, by express words, a covenant may be joint and several with the covenantors and covenantees, notwithstanding the in- terests are several, is inaccurately expressed ; it is true only of covenant- ors, and the cases cited from Salkeld, p. 393, relates to them; probably Mr. Preston intended no more, and never meant to assent to the doctrine that the same covenant might be made by any words, however strong, joint and several, where the interest was joint ; and it is this part, I apprehend, of 606 WHO ARE BOUND BY, AND WHO MAY TAKE but they must sue jointly, if they can ; where, however, the deed discloses an interest in the covenantees which is several, a covenant which is joint in form may be sued upon by one covenantee alone.^ Where the benefit of a covenant of warranty has de- scended upon coparceners, all must join in suing upon it ; ^ if it has vested in tenants in common, all may join in respect of their joint possession,^ or each may, it seems, sue sepa- rately, at his election.* Mr. Preston's doctrine, to which the Court of Queen's Bench objects. I think it right to give this e.Kplanation, that it may not be supposed that there is any difference on this point with the Court of Queen's Bench." In Keightley v. Watson, supra, more- over, it expressly appeared on the face of the instrument that the par- ties had a separate interest, so that the Court decided it to be a sepa- rate covenant, both in accordance ■with the words and the interest. 1 James v. Emery, 8 Taunton, 245 ; Withers v. Bircham, 3 Barn. & Cress. 254; Servants v. James, 10 Id. 410; Story V. Kichardson, 6 Bing. N. C. 129 ; Poole v. Hill, 6 Mees. & Welsby, 835 ; Palmer v. Sparshott, 4 Scott's New K. 743 ; Mills v. Ladbroke, 7 Man. & Grang. 218; Harrold v. Whittaker, 11 Queen's Bench, 161 ; Sharp V. Conkling, 16 Vermont, 355. 2 Ueoharms v. Horwood, 10 Bing. 526 ; Tapsoott v. Williams, 10 Ohio, 443. 3 Midgley v. Lovelace, Carthew, 289 ; Powis v. Smith, 5 Barn. & Aid. 850 ; Henniker v. Turner, 4 Barn. & Cress. 157 ; Paul v. Witman, 3 Watts & Serg. (Pa.) 407. 4 Midgley !;.Lovelace,supra; Swett V. Patrick, 2 Pairfield, (Mc.) 181; Walford on Parties to Actions, 423, passim ; Broom on Parties to Actions, 27. The right of tenants in common in general to sue jointly or severally depends upon the subject of the ac- tion and the interest they have in it, and the student must distinguish be- tween cases where it is said tenants in common may, and where they must join or sever. In Paul v. Witman, 3 Watts & Serg. (Pa.) 409, it was said, " Whether the plaintiffs can sustain a joint suit is a point not without dif- ficulty. The contract was made with the testator ; and it was unreasonable that he should be at liberty by devis- ing the land in separate parcels, to subject the warrantor to as many ac- tions as there were devisees. Sup- pose the warrantor, on eviction of the warrantee, is ready and willing to pay, how is he to ascertain the pro- portion to which each of the devisees is entitlSd, wben the portions of the real estate devised are of unequal value ? Is the warrantor to be liable to as many suits as there are heirs ? Although, as between themselves, their interests are several, yet as respects the warrantor, they hold a joint interest, and as such may sue jointly. Of this, as it Is for his bene- fit, the warrantor could not complain. ADVANTAGE OF COVENANTS FOR TITLE. 607 Second and Third. Of the Heir and Devisee. It has been seen that the liahility of an heir depended, among other things, upon his being named in the covenant.^ In the case of the ancient warranty, the same rule was applied as respects the right of the heir to sue. Unless named in the warranty, he could not take advantage of it.^ But with respect to covenants, this rule has been sought to be altered, and the conclusion seems to have been arrived at, that where, from the instrument, the intention appears that a covenant, in its nature capable of running with land, should continue in operation longer than for the life of the covenantee, advantage may be taken of it by the heir, although not named in terms ; ^ and it has been further suggested that such covenants might, in general, be con- strued to run with an estate of inheritance to the heir, un- When a joint interest is created, either by the parties or by act of law, the covenantees cannot sever in the action. And the reason assigned is, that if several were permitted to bring distinct actions for one and the same cause when the interest is joint, the Court would be in doubt for which of them to give judgment ; Slingsby's case, 5 Co. 19; 1 East, 500. That all the heirs should join in the suit, is but justice to them as well as the covenantor, for they are equally en- titled to the money. Devisees may apportion the money between them- selves, and why compel them to bring separate suits when it is to their advantage, as well as the warrant- ors, that the suit should be joint ? Whether separate suits will not lie, may, perhaps, be doubtful, since the decision of Twynam v. Pickard, 2 Barn. & Aid. 105. In that case it is ruled that covenant will lie by the assignee of the reversion of part of the demised premises, against the lessor for not repairing." In the sub- sequent case of McClure v. Gamble, 3 Casey, (27 Penn. State R.) 288, it was held that where the title which the covenant was intended to assure became vested in a tenant for life, with remainder over, all those who were entitled to the remedy, must join in the action, (as to this, see supra, p. 356). " We regard this objection as sound," said the Court, " and as receiving support from the reasoning of Mr. Justice Rogers in the case of Paul v. Witman, though, in that case, it was decided only that different owners may properly join." 1 Supra, p. 586. 2 Co. Litt. 384 b; supra, p. 587. 3 Lougher v. Williams, 2 Levinz, 92 ; Saoheverell v. Froggatt, 2 Saund. 367; Piatt on Covenants, 517. See the able argument of Mr. Gifford, in Kingdon v. Nottle, 1 Maule & Selw. 357; 4 Id. 53. 608 WHO ARE BOUND BY, AND WHO MAY TAKE less an evident intention be manifested to confine them to the covenantee.^ The right, however, of an heir to take advantage of the covenants for title which his ancestor has received, depends, throughout the greater part of this country, upon the nature of those covenants ; as it has been seen in a former chap- ter, that the covenants for seizin, for right to convey, and against incumbrances, are held to be broken as soon as made,^ and thereby turned into choses in action, incapable of transmission or assignment. A suit upon these cove- nants can, therefore, only be maintained by the personal representative of the covenantee. Hence it has been some- what generally said that these covenants do not run with the land ; but as thus stated the proposition is scarcely ac- curate, as all the covenants for title run with the land until breach, and the difference between the American and the English authorities is, that according to the former, the covenants for seizin, for right to convey, and against incum- brances, are held to be broken as soon as made ; while ac- cording to the latter, no distinction is taken between these covenants, and those for quiet enjoyment and of warranty, which, on both sides of the Atlantic, are held to be prospec- tive in their operation, and not to be broken until an evic- tion, actual or constructive. , But the right of the heir or devisee to take advantage of these last-named covenants depends entirely upon whether their breach did or did not occur in the lifetime of the an- cestor or testator. Although from some expressions in the cases of Kingdon v. Nottle,^ and King v. Jones,* it would seem to have been thought that the modern covenants for title, like the ancient warranty, descended as to their benefit, 1 Roe V. Hayley, 1 2 East, 464. 3 i Maule & Selw. 355 ; see supra, ^ Supra, f.Sii etseq. p. 337. * 5 Taunton, 418 ; supra, p. 338. ADVANTAGE OF COVENANTS FOR TITLE. 609 upon the heir, irrespective of the time at which the breach took place, yet such a doctrine has been since corrected,-' and it is now well settled that where the breach occurs in the lifetime of the ancestor or testator, the right to recover the consequent damages vests in his personal representative ; and where a covenant of warranty was made to two tenants in common, both of whom were evicted, and one of them afterwards died, it was held that the right survived, and that the action was rightly brought by the other covenantee for the whole damage sustained.^ Where, however, the breach occurs after the death of the ancestor or testator, the right of action must be exercised by the heir or devisee, on whom the damage has fallen.^ If, however, the heir or devisee be at that time dead, the right of action vests in his personal representatives, the damages being, of course, per- sonal estate.* Fourth. The foregoing remarks, and those that have been made in a former chapter, may be also referred to in considering the rights of the executor or administrator. They are entitled to the benefit of the covenants for title which could have been taken advantage of by the testator 1 See Raymond v. Fitch, 2 Crompt. have been made. See this case, su- Mees. & Rose. 588 ; Ricketts v. Wea- pra, p. 509. ver, 12 Mees. & Welsby, 718; Wal- 2 Townsend v. Morris, 6 Cowen, ford on Parties to Actions, 368. In (N. Y.) 123. the recent case of Young u. Raineock, ^ ^apscott v. WiUiams, 10 Ohio, 7 Com, Bench, 310, which was elab- 442; Grist v. Hodges, 3 Devereux, orately argued, the eviction having (N. Car.) 201 ; South a. Hoy, 3 Mon- taken place during the lifetime of the roe, (Ken.) 95 ; Pence's Heirs v. Du- purchaser, no objection was taken to vall's Heirs, 9 B. Monroe, (Ken.) 48 ; the action having been brought by Williams v. Hogan, Meigs, (Tenn.) his executor. If the point had been 187. considered as at all an open one, it * Beddoe's Exrs. v. Wadsworth, 21 is probable that the objection would Wendell, (N. Y.) 120. 610 WHO ARE BOUND BY, AND WHO MAY TAKE, ETC. or intestate during his lifetime, and which were broken be- fore his death.^ Fifth. As respects the rights of the assignee, a distinction always existed between the ancient warranty and covenants. Thus, the warranty implied by the word dedi could not be taken advantage of by the assignee of him who had received it ; ^ but " if a man make a lease for years by the vs'ord concessi or demisi (which implies a covenant), if the assignee of the lessee be evicted, he shall have a writ of covenant." ^ So with respect to the warranty and the covenant when expressed in words : " Regularly," says Coke,* " if a man warrant land to another, and his heirs, without naming as- signs, his assignee shall not vouch; " but with respect to a covenant the rule was different, and the assignee could take advantage of it though not named.^ The right, however, of an assignee to take advantage of covenants entered into with one prior to himself in the chain of title, depends upon many circumstances, which have been attempted to be ex- plained in a former chapter.^ 1 Unless in such a case as that of his labor, and employed his cost upon Townsend v. Morris, supra. the laud, and be evicted (whereby 2 "If a man make a feoffment by he loses all), that he shall take such this word dedi, which implies a war- benefit of the demise and grant as ranty, the assignee of the feoffee shall the first lessee might, and the lessor not vouch." Spencer's case, 5 Coke, hath no other prejudice than what 16. his especial contract with the first 3 Spencer's case, 4th resolution : lessee hath bound him to." " For the lessee and his assignee hath 4 Co. Litt. 384 b. the yearly profits of the land, which 5 Spencer's case, 3 Coke, 16. shall grow by his labor and industry, 6 See supra, Chapter VIII. p. 352 for an annual rent ; and therefore it et seq. is reasonable, when he hath applied THE purchaser's RIGHT TO RECOVER, ETC. 611 CHAPTER XIII. THE purchaser's RIGHT TO RECOVER BACK OR DETAIN THE PURCHASE-MONEY AFTER THE EXECUTION OF THE DEED. The distinction between the rules which govern the re- lation of vendor and purchaser before and after the execu- tion of the deed — while the contract is still executory, and after it is executed — is a broad and familiar one. Al- though the general principles of the contract of sale of real estate, both in this country and in England, exact less from the vendor than the rules of the civil law demand,-^ yet. 1 Much objection is made by the admirers of the civil law to the doc- trine of caveat emptor, as applied to real estate | Cooper's Justinian, 610, 620, &c., but, as was well remarked by Lord Eldon in Hiern v. Mill, 1 3 Ves. 114, " no one in his senses would take an offer of a purchase from a man merely because he stood upon the ground." " In contracts of pur- chase," as has been well expressed, " the vendor and vendee in the ab- sence of special circumstances, are to be considered as acting at arm's length ; and hence, although the vendor will not be allowed to prac- tice any artifice for the purpose of concealing defects, or to make such representations as may have the effect of throwing the purchaser off his guard, yet, on the other hand, where the means of information as to the facts and circumstances affecting the value of the subject of sale, are equally accessible to both parties, and neither of them does or says anything to impose upon the other, the disclos- ure of any superior knowledge which one party may have over the other, is not requisite to the validity of the contract ; there being no breach of any implied confidence that either party will not avail himself of his superior knowledge, because neither party reposes such confidence, un- less specially tendered or required." Atkinson on Marketable Titles, 134. 612 THE PURCHASER S EIGHT while the contract is still executory, they recognize and en- force the right of the purchaser to a title clear of defects and incumbrances,^ and this right, it has been often said, is one not depending for its origin upon the terms of the con- tract, but is given by the law ; ^ nor, except in particular cases, is it affected by the nature and extent of the covenants for title which the purchaser is to receive.^ But when the deed of conveyance has been delivered, a different rule applies.* The contract is then executed, and any inconsistencies between its original terms and those of the deed, are, in general, to be explained and governed solely by the latter, into which the former is merged, and by which the parties are thereafter to be bound,^ and the 1 See supra, p. 562. 2 Throughton v. Throughton, 1 Ves. Sen. 86 ; 2 Sugden on Vendors, 419 ; Johnson v. Johnson, 3 Bos. & Pull. 162 ; Cripps v. Reed, 6 Term, 606 ; Koffey v. Shallcross, 4 Mad- dock, 227 ; Dalby v. PuUen, 3 Simons, 29 ; Ward v. Trathen, 14 Id. 82 ; Judson V. Wass, 11 Johns. 525 ; Burwell v. Jackson, 5 Selden, (N. Y.) 545; Davis v. M'Vicker, 11 Illinois, 829 ; Minor v. Edwards, 12 Missouri, 137 ; Kent v. Allen, 24 Id. 98 ; and see supra, p. 562. 3 The exceptions to this proposition are, perhaps, peculiar ones, as where a purchaser makes a chancing bar- gain and relies on the covenants he is to receive for his protection ; Lord St. Leonards says, " If a purchaser, before executing the articles, has no- tice of an incumbrance, which is con- tingent, and it is by the articles agreed that the vendor shall covenant against incumbrances, the purchaser has en- tered into them with his eyes open, has chosen his own remedy, and equity will not assist Mm ; and he cannot, therefore, detain any part of the purchase-money." 2 Sugden on Vendors, 420. Vane v. Lord Bar- nard, Gilbert's Eq. R. 5, which is the authority cited, was not strictly a case of vendor and purchaser ; it arose under a marriage settlement. See Clarke v. Faux, 3 Russell, 320. 4 The distinction is a familiar one, that there are many cases in which equity would have refused to decree a specific performance of the con- tract, yet which, being executed, it will refuse lo distui-b ; Twining v. Morrice, 2 Brown's Ch. 326 ; Mort- lock V. Buller, 10 Ves. 308 ; Cadman V. Horner, 18 Id. 10 ; Brocksopp u. Lucas, Id. 335 ; Clermont v. Tas- burgh, 1 Jac. & Walk. 120; Vigers V. Pike, 2 Drury & Walsh, 1 ; S. C. on appeal, 8 CI. & Fin. 562 ; Sey- mour V. Delancey, 6 Johns. Ch. 230 ; Gans V. Renshaw, 2 Bai-r, (Penu.) 37 ; Story's Eq. Jurisp. § 206. 5 Howes V. Barker, 3 Johns. 506 ; Houghtaling v. Lewis, 10 Id. 297 ; Griffith V. Kempshall, 1 Clark's Ch. (N. Y.) 571 ; Bull v. Willard, 9 TO DETAIN PURCHASE-MONEY, ETC. 613 purchaser's only right to relief, either at law or in equity, from defects or incumbrances, depends, in the absence of fraud, solely upon the covenants for title which he has received. The connection, therefore, between covenants for title and a purchaser's right to relief, whether administered by a court of law or equity, is, on both sides of the Atlantic, a necessary and intimate one.^ This has been settled by a series of decisions from an early period. In Buckhurst's case,^ it was held that if one seized in fee convey without warranty, " the title papers pass to the grantee, because he is to defend the land at his peril." ^ The case, however, generally cited as the early leading authority on this point, is Maynard's case,* where Lord Nottingham is reported to have said, " He that purchases lands without any covenants or warranties against prior titles, if the lands be afterwards evicted by an eigne title, can never exhibit a bill in equity to have his purchase-money again upon that account ; pos- sibly there may be equity to stop the payment of such pur- chase money as is behind, but never to recover what is paid; for the chancery mends no man's bargain." But even this supposed right of the purchaser to detain the purchase-money has long since been denied ; and it is one Barb. S. C. (N. Y.) 642 ; Seitzinger after the execution of the deed, the V. Weaver, 1 Rawle, (Pa.) 377; contract is still executory as to such Ludwick v. Huntzinger, 5 Watts & part of the purchase-money as is un- Serg. (Pa.) 51; Shontz v. Brown, paid, and the absence or presence of 3 Casey, (27 Penn. State R.) 131, covenants which include the defect except in some cases, certain coUat- is immaterial, eral and incidental covenants which ^ \ Coke, 1. are not merged in the deed ; Colvin •' Hodges v. Saunders, 1 7 Picker- V. Schell, 1 Grant's Cases, (Penn.) ing, (Mass.) 475 ; Redwine w. Brown, 226 ; Cox V. Henry, 8 Casey, (32 10 Georgia, 311. Penn. State R.) 20 ; Carr u. Roach, ^ 2 Freeman, 1 ; S. C. Rep. temp. 2 Duer, (N. Y.) 25. Finch, 288, and Appendix to 3 Swan- 1 Except in Pennsylvania, where, ston, 651. as will be hereafter shown, even 52 614 THE PURCHASER S RIGHT of the most settled principles of the law of vendor and pur- chaser, that a purchaser who has received no covenants which cover the defect or incumbrance, can neither detain the purchase-money, nor recover it back, if already paid. Unless there has been fraud, he is absolutely without relief, as against his vendor, either at law or in equity.^ 1 Urmston v. Pate, (1794,) re- ported in 4 Cruise, 394 (4th edit.) and 2 Sugden on Vendors, 425, cited by Lord Lougtborough in Wakeman v. Duchess of Rutland, 3 Ves. 235 ; Craig V. Hopkins, 2 Coll. of Decis. 517; Butler's note to Co. Litt. 384 a ; Thomas v. Powell, 2 Cox's Ch. 394 ; Bree v. Holbeck, Douglas, 665. [This was a very strong case. An administrator with the will annexed, found a mortgage among the pa- pers of his testator, and assigned it for full value, covenanting that neither the testator nor himself had done any act to encumber the mort- gaged estate. The mortgage turned out to be forged ; but as there was no evidence that the administrator knew of this. Lord Mansfield held that the purchaser could not recover back what he had paid. The admin- istrator " did not covenant for the goodness of the title, but only that neither he nor the testator had en- cumbered the estate. It was incum- bent on the plaintiff to look to the goodness of it." This case, though recognized as correct in this applica- tion, must be considered as confined to this application alone ; see Price v. Neale, 3 Burrow, 1355; Cripps v. Read, 6 Term, 606 ; Jones v. Ryde, 5 Taunton, 488 ; Smith v. Mercer, 6 Id. 76 ; Young v. Adams, 6 Mass. 182; U. S. Bank v. Bank of Geor- gia, 10 Wheaton, 333] ; Johnson v. Johnson, 3 Bos. & Pull. 162; Soper u. Stevens, 14 Maine, 133; Butman V. Hussey, 30 Id. 266 ; Frost v. Ray- mond, 2 Caines, (N. Y.) 192; Ab- bot V. Allen, 2 Johns. Ch. 519 ; Gov- erneur v. Elmendorf, 5 Id. 79 ; Can- V. Roach, 2 Duer, (N. Y.) 20 ; Bur- well V. Jackson, 5 Selden, (N. Y.) 36 ; Miles v. Williamson, 12 Harris, (24 Penn. State R.) 142 ; Middle- kauff V. Barrick, 4 Gill, (Md.) 300 ; Falconer v. Clark, 3 Maryland Ch. Dec. 151 ; 7 Maryland, 178 ; Harris V. Morris, 4 Maryland Ch. Deo. 533 ; Earle v. Earle, Spencer, (N. J.) 363 ; Doyle V. Knapp, 3 Scammon, (111.) 334 ; Condrey u. West, 1 1 Illinois, 146 ; Beale v. Sieveley, 8 Leigh, (Va.) 658 ; Commonwealth v. McClana- chan, 4 Randolph, (Va.) 482 ; Sut- ton V. Sutton, 7 Grattan, (Va.) 238 ; Butler u. Miller, 15 B. Monroe, (Ken.) 627 ; Allen v. Hopson, Free- man's Ch. (Miss.) 276 ; Nance v. El- liot, 3 Iredell's Ch. (N. Car.) 408 ; Ma- ney v. Porter, 3 Humphrey, (Tenn.) 347; WiUiamsont'. Raney, Freeman's Ch. (Miss.) 114; Brandt v. Foster, 5 Clarke, (Iowa,) 293, where the text was cited. " Courts of equity do not," said Mason, J., in the recent case of Piatt V. Gilchrist, 3 Sandford's S. C. (N. Y.) 118, "make new contracts for parties, or relieve them from the effects of those which they have fairly and deliberately made. They will interfere in cases of fraud, of accident. TO DETAIN PURCHASE-MONEY, ETC. 615 To this rule there is a single exception, and that is where fraud, or what is equivalent to it has been practised upon or mistake ; but then it is on the ground, either that there was no valid contract, or that the contract actually made, by reason of accident or mistake, is different from the real intentions of the parties. In the one case, they declare the contract abso- lutely void ; in the other, they make it what the parties originally intended it to be, if it can possibly be carried into effect according to their intent. But they never introduce a new stipulation into the agreement, and especially one which the parties themselves might have introduced, had they thought proper. A strik- ing illustration of this doctrine is to be found in the refusal to interfere in the case of an express covenant to pay rent, after the premises, in con- sideration of which the rent is agreed to be paid, have been destroyed by fire ; it is well settled, that a tenant can have no relief in such a case — that a court of equity is bound to put the same construction on such a cov- enant, and give it the same effect that a court of law should do. In the ordinary case of a sale of land, the possibility that the title may fail, is a consideration that enters into the views of both purchaser and seller. If the purchaser does not wish to assume the risk of the title, he pro- tects himself by covenants. If he assumes the risk, he accepts the deed without covenants, and receives his equivalent in the diminution of the price. When the very thing occurs, the hazard of which he has taken on himself, and for which ho has received an equivalent, it would be anything but equitable to restrain the collec- tion of the unpaid purchase-money. It would be throwing upon the seller the very loss which he had declined to assume, and be making him, con- trary to the intention of the parties, the guarantor of the title, at least to the extent of the sum due.'' See this case, infra. There is a single case, said to have been decided by Lord Nottingham, which has laid down a different prin- ciple. In an anonymous case, in 2 Cas. in Ch. 19, the Chancellor is said to have relieved from . payment of the purchase-money, when the pur- chaser was evicted by a title to which his covenants did not extend. But the case was not only not taken down by the reporter, but he questions its accuracy and soundness in three very pertinent notes : "1. If declaration, at the time of the purchase treated on, that there was an agreement to extend against all incumbrances, not only special, it could not have been admitted. " 2. The affirmative covenant is negative to what is not affirmed, and all one as if expressly declared that the vendor was not to warrant but against himself, and the vendee to pay, because absolute without condition. "3. Qucere. If this may not be made use of to a general inconvenience, if the vendee, having all the writings and purchase, is weary of the bar- gain, or in other respects sets up a title to a stranger by collusion ? " Noia. In many cases it may be easily done," &c. " These remarks," says Lord St. 616 THE purcpiaser's right the purchaser. In such case, the mere fact of the contract having been executed by the delivery of the deed, does not deprive him of his right to relief, nor is it material whether the covenants for title do or do not extend to the particular defect or incumbrance. But while this, as a general principle, is well settled, con- siderable difficulty has been somewhat recently experienced in England, as to what degree of concealment or misrepre- sentation on the part of the seller, will, in particular cases, amount to fraud, within the above rule, and, in a series of important cases, the subject has received elaborate exam- ination. The leading case there may be said to be Edwards v. McLeay,' where the principle just referred to was distinctly laid down. In that case, the purchaser discovered, after the receipt of his conveyance, that the ground of his stables, and also of a driving way leading up to the house, were part of a common, and filed a bill to rescind the contract, and recover back the purchase-money, with interest, and all the sums spent in repairs. He proved that the defendants were aware of these facts at the time of making the contract, that they were not disclosed by the abstract, and that they repre- sented themselves to be seized in fee of the whole estate. Sir William Grant,^ in delivering his opinion, said : " This is a bill of rather an unusual description. It is brought by the purchaser of an estate, who has had a conveyance made to him, for the purpose of setting aside the sale and getting back his purchase-money, on the ground of an alleged mis- representation with regard to the title of a part of such Leonards, " are unanswerable, and if ble to lose it, supposing the estate to the doctrine in this case were law, be recovered by a person against the consequences would be serious, whose acts he had not covenanted? " for what vendor would permit part 2 Sugden on Vendors, 427. of the purchase-money to remain on l Cooper, 308. mortgage of the estate, if he were lia- ^ Master of the Eolls. TO DETAIN PURCHASE-MONEY, ETC, 617 estate. It cannot certainly be contended that, by the law of this country, the insufficiency of a title, even when pro- ducing actual eviction, necessarily furnishes a ground for claiming restitution of the purchase-money. By the civil law it was otherwise. By our law, a vendor is in general liable only to the extent of his covenants ; but it has never been laid down that on the subject of title, there can be no such misrepresentation as will give the purchaser a right to claim a relief to which the covenants do not extend. In the case of Urmston v. Pate,^ there was no ingredient of fraud. Both parties misapprehended the law. The vendor had no knowledge of any fact which he withheld from the purchaser. In the case of Bree v. Holbeck,^ it did not at all appear that the administrator knew that the mortgage which he assigned was a forgery. Lord Mansfield says, ' if he had discovered the forgery, and had then got rid of the deed as a true security, the case would have been very dif- ferent.' And the purchaser had leave to amend his repli- cation if, upon inquiry, the case would support a charge of fraud. Whether it would be a fraud to offer, as good, a title which the vendor knows to be defective in point of law, it is not necessary to determine. But if he knows and con- ceals a fact material to the validity of the title, I am not aware of any principle on which relief can be refused to the purchaser. . . . The only other objection which the defendants make to the relief sought by the bill is, that the purchaser is premature in his application, inasmuch as he has not yet been evicted, and may perhaps never be evicted. But I apprehend that a court of equity has quite ground enough to act upon, and that it ought -now to relieve the plaintiff" from the consequences of the fraud practised upon him." 1 Supra, p. 614, note. 2 Douglas, 654. See this case supra, p. 614. 52* 618 THE PURCHASER S RIGHT Upon appeal to this decision,^ Lord Eldon observed that the case resolved itself into the question whether the rep- resentation made to the plaintiff was not, in the sense in which we use the term, fraudulent. 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 knew to be false, but the falsehood of which the other party had no means of knowing, a court of equity will rescind the contract ; the decree was therefore affirmed.^ 1 2 Swanston, 308. 2 The Earl of Devon said of this remark in the great case of Small v, Attwood, when in the House of Lords (see infra, p. 619), " The expression of Lord Eldon, that he was not ap- prised of any such decision, is not immaterial. I do not refer to it as implying any doubt whatever of the jurisdiction, but when a Judge of Lord Eldon's experience states him- self not to be aware of any case in which that jurisdiction had been practically applied, we may find an additional reason for the principle that nothing but the most clear and decisive proof of fraudulent repre- sentations, made under such circum- stances as show that the contract was based upon them — such a case in- deed as Lord Eldon in his experience had not known to occur — will jus- tify the interference of a court of equity." 3 Though with some modification as to its extent, "as," said the Chan- cellor, "it seems to ha'vfe gone too far on the subject of repairs and improvements. Its terms must be made conformable to the terms of the bill ; striking out the word im- provements, and leaving the word repairs. I give the plaintiiT all that be asked by his bill, and I cannot give him less." In Lord St. Leonards' " Law of Property as administered in the House of Lords," p. 653, he says, in speaking of this case, " Lord El- don's statement of what he consid- ered to be the principle of the de- cree, cannot alter the facts of the case, and his own previous observa- tion shows that he did not consider it a case of moral fraud, but one where, in the sense in which a court of equity uses the term, the represen- tation was fraudulent. And such appears to be the real nature of the case. . . . The evidence of knowl- edge was, I think, quite sufficient to support the decree ; but it also proved that the sellers bond fide believed themselves to have a good title after so long a possession ; and indeed the title was one which it was highly im- probable would ever be impeached. Sir W. Grant's position was, that if a vendor knows and conceals a fact material to the validity of the title, relief is to be afforded to the pur- chaser. That is the true rule. If the title is fairly before the pur- chaser, he must rely on his cove- nants. This rule does not require any representation. If the seller TO DETAIN PURCHASE-MONEY, ETC. 619 This was followed by the great case of Small v. Attwood,^ originally decided on the equity side of the Court of Ex- chequer, in 1832,^ and, on appeal, in the House of Lords, in 1838.^ There was little difference of opinion as to the rule of law, either in the Exchequer or in the House of Lords, although the decree in the former, rescinding the contract, was reversed in the latter, the facts * not being knows a material fact and conceals it, that is, does not divulge it, he is responsible ; his motive is unimpor- tant ; he is bound to give the pur- chaser the means of forming a judg- ment on the title, and is not to decide ■what he deems it necessary to dis- close. Sir W. Grant did not, like the bill, put the case as one of gross fraud, although evidently, in the sense referred to by Lord Eldon, he declared the contract and con- veyance to be fraudulent and void." This case of Edwards v. McLeay has been constantly cited as of the highest authority ; Attwood v. Small, infra ; Gibson v. D'Este, 2 Younge & Col. N. S. 542 ; Wilde v. Gibson, 1 Clark & Fin. N. S. 605, where Lord Campbell said there was no case of higher authority in the books ; Young V. Harris's Admr. 2 Alabama, 111 ; Van Lew v. Parr, 2 Richardson's Eq. (N. Car.) 338 ; Gans v. Ren- shaw, 2 Barr, (Pa.) 34. 1 In this case the amount of the purchase-money was £600,000, and the costs, before the appeal was heard in the House of Lords, had amounted to £10,000. "The case," said Lord Brougham, in delivering his judgment, " was without any ex- ample within the experience of the oldest man in the profession, in point of length and of complexity of detail, or of the mass of matter with which it stands encumbered, and it is hardly exceeded by any cause of which there is any report in respect of the importance of the stake at issue." 2 1 Younge, 461. 3 6 Clark & Pinnelly, 232, 531. 4 The facts in this case are so numerous and dependent, that it is diflicult to do justice to them by an abridged statement. Indeed, in cases of this class, the question of misrepresentation on the one side, and diligence on the other, is so fre- quently a very delicate one, depend- ing sometimes upon slight circum- stances and sometimes upon a combi nation of many circumstances, as to call for an examination of each case upon its own peculiar facts, and the utmost that can be done in a work like the present, is to refer to the principles of law which are generally conceded to prevail. The general features of the case were these : Attwood was the owner of certain iron works, and Small and others represented the British Iron Com- pany. Upon a proposition of sale being made to the latter, Taylor, an agent and large shareholder, viewed the works while Attwood was there, and upon his report three of the directors wrote to Attwood, propos- ing to buy the property for £600,000, payable by instalments, upon the un- derstanding that every facility should 620 THE purchaser's right thought sufficient to support the charge of fraud. Lord Brougham, in deUvering his opinion in the House of Lords for a reversal of the decree, said, " If two parties enter into a contract, and if one of them, for the purpose of inducing the other to contract with him, shall state that which is not true in point of fact, which he knew at the time that he stated it not to be true, and if upon that statement of what is not true, and what is known by the party making it to be false, the contract is entered into by the other party, then, generally speaking, and unless there is more than that in the case, there will be at law an action open to the party entering into such contract — an action of damages grounded upon the deceit, and there will be a relief in equity to the same party to escape from the contract which he has so been inveigled into making by the false represen- tation of the other contracting party. In one case it is not necessary that all those three circumstances should con- be given to Taylor to ascertain the close to estimate profits upon with correctness of the representations safety, still that they proved the data that had been made to him. These given by Attwood to be more favor directors subsequently examined for able to the buyer than the seller, themselves, and then reported to the the directors reported that Attwood Company that they had concluded had redeemed his pledge, and the the treaty of purchase after the na- contract was executed with some ture and capacity of the works had abatement in the price. Six months been fully investigated. Soon after, after, the Company filed a bill to re- Taylor went there to reside as man- scind the contract, on the ground of ager, and sent favorable reports to false statements made in papers sub- the Company. Some negotiations mitted to Taylor, misrepresentations ensued respecting the completion of to the deputation, and concealment the title, pending which, the price of of faults. All these were denied by iron fell, and the Company then pro- the answer, which declared that the posed, as a new term, that a deputa- representations were upon certain tion should go to the works to exam- assumptions, and were general aver- ine whether certain data given by ages. The plaintiffs then amended Attwood to Taylor, were correct, their bill by striking out Taylor as a The visit was paid ; and after com- plaintiff, and making him defendant, munication with Taylor, who stated In his answer, he denied all fraud that although the calculations sub- and collusion with Attwood. mitted to him by Attwood were too TO DETAIN PURCHASE-MONEY, ETC. 621 cur in order to ground an action for damages at law, or a claim for relief in a court of equity ; I mean in the case of warranty given, in which the party undertakes that it shall in point of fact he so, and in which case, therefore, no question can be raised upon the scienter, upon the fraud or wilful misrepresentation. In this case that is clearly out of the question ; therefore all these circumstances must com- bine : first, that the representation was contrary to the fact ; secondly, that the party making it knew it to be contrary to the fact ; ^ and thirdly and chiefly, in my view of the case. 1 This proposition, though perfectly correct as stated in this application, must not be too broadly construed, as there will appear to be a conflict of authority which does not really exist. There can be no doubt that in most cases in which an action in the nature of a writ of deceit would lie at law, equity will lend its juris- diction to rescind the contract, but the converse by no means univer- sally holds, for the heads of fraud and mistake are, both in courts of law and equity, as distinct as those of tort and contract. An innocent misrepresentation by mistake can never be made the ground of a per- sonal action for fraud, however it may operate upon the contract itself. It may annul the contract, on the ground that " a substantial error be- tween the parties, concerning the subject-matter of the contract, de- stroys the consent necessary to its validity;" 2 Kent's Com. 471; and this principle has been frequently applied in equity in the rescission of executed contracts for the sale of real estate ; 1 Story's Eq. § 142 Hitchcock D. Giddings,4 Price, 135 Mead v. Johnson, 3 Connect. 597 Bradley v. Chase, 22 Maine, 511 Armstead i;. Hundley, 7 Grattan, (Va.) 64 ; (see Sutton v. Sutton, Id. 239 ;) Smith v. Mitchell, 6 Georgia, 458 ; Dale v. Rosevelt, 5 Johns. Ch. 182 ; Champlin v. Laytin, 6 Paige, (N. Y.) 197 ; Daniel v. Mitchell, 1 Story, 172; Mason v. Crosby, 1 Woodbury & Minot, 342. After some conflict of opinion be- tween the Courts of Exchequer and Queen's Bench, it is now decisively settled in England, that in order to support an action on the case for fraudulent representations, it is not sufficient to show that a party made statements which he did not know to be true, and which were in fact false — there must be fraud, as distin- guished from mere mistake ; Collins V. Evans, 5 Queen's Bench, 804 ; Barley u. Walford, 9 Id. 197; Moens V. Hey worth, 10 Mees. & Welsby, 147; Taylor o. Ashton, 11 Id. 401; Ormrod v. Huth, 14 Id. 651, and the weight of American authority is to the same effect ; Russell v. Clark, 7 Cranch, (U. S.) 69; Young v. Covell, 8 Johns. 25 ; Hammatt v. Emerson, 27 Maine, 309; Weeks v. Burton, 7 Vermont, 6 7 ; Ewins v. Calhoun, Id. 79 ; Lord v. Colley, 6 N. Hamp. 99 ; Allen V. Addington, 7 Wendell, (N. 622 THE PURCHASER S RIGHT that It should be this false representation which gave rise to the contracting of the other party." ^ Y.) 10; S. C. 11 Id. 375 ; Tryou v. Whitmarsh, 1 Metcalf, (Mass.) 1 ; Smith V. Babcock, 2 Woodbury & Minot, 246 ; Lord v. Goddard, 13 Howard, (U. S.) 211. Without, however, the utterance of an actual falsehood, a party may still be liable in an action for deceit ; as where he states material facts as of his own knowledge (and not as mere matter of opinion or general assertion) about which he has no knowledge what- ever ; as this direct wilful statement, in ignorance of the truth, is the same as the statement of a known false- hood, and will constitute a scienter ; Hazard v. Irwin, 18 Pickering, (Mass.) 96 ; Lobdell v. Baker, 1 Met- calf, (Mass.) 193 ; S. C. 3 Id. 469 ; Stone V. Denny, 4 Id. 158; Medley v. Watson, 6 Id. 245 ; Hammatt v. Em- erson, 27 Maine, 309 ; Gough v. St. John, 16 Wendell, (N. Y.) 646 ; Munroe v. Pritchett, 16 Alabama, 785 ; Waters v. Mattingley, 1 Bibb, (Ken.) 244 ; Thomas v. M'Cann,4 B. Mon- roe, (Ken.) 601 ; M'Ferran v. Tay- lor, 3 Cranch, 281 ; and the same circumstances will, of course, induce equity to rescind the contract ; Joice V. Taylor, 6 Gill & Johnson, (Md.) 58; Smith v. Babcock, 2 Woodbury & Minot, 246 ; Tuthill v. Babcock, Id. 298 ; Shackelford v. Handley, 1 Mar- shall, (Ken.) 500 ; Lockridge v. Foster, 4 Scammon, (111.) 570; Turn- bull V. Gadsden, 2 Strobhart's Eq. (S. Gar.) 14; Lanier y. Hill, 25 Alabama, 558 ; Smith v. Richards, 13 Peters, (U. S.) 26. 1 This has been often recognized by American authority ; Concord Bank v. Gregg, 14 N. Hamp. 331 ; Warner v. Daniels, 1 Woodbury & Minot, 90 ; Mason v. Crosby, Id. 342; Tuthill V. Babcock, 2 Id. 298; Turn- bull V. Gadsden, 2 Strobhart's Eq. (S. Car.) 14 ; Crittenden v. Craig, 2 Bibb, (Ken.) 474 ; Shackelford v. Handley, 1 Marshall, (Ken.) 500 ; Parham v. Randolph, 4 Howard, (Miss.) 435 ; affirmed in English v. Benedict, 25 Miss. 167 ; Oswald u. M'Gehee, 28 Id. 340 ; and see the remarks of Ch. J. Marshall, at the close of the decision in M'Ferran u. Taylor, 3 Cranch, 282. Thus, in Winston v. Gwathmy's Heirs, 8 B. Monroe, (Ken.) 23, the subject of misrepresentation, though a spring of some value, was not a material element in the purchase, and relief was therefore denied. In the absence, however, of evidence on this point, it is presumed that a court of equity would be apt to conclude that if the misrepresentation were made, it had its effect to lead on the pur- chaser to complete the contract. Lord Brougham, in his opinion, added that the inference he drew from the authorities was, that " gen- eral fraudulent conduct signifies noth- ing — that general dishonesty of pur- pose signifies nothing — that attempts to overreach go for nothing — that an intention and design to deceive may go for nothing ; — unless all this dis- honesty of purpose, all this fraud, all this intention and design, can be con- nected with the particular transac- tion, and not only connected with the particular transaction, but must be made to be the very ground upon which this transaction took place, and TO DETAIN PURCHASE-MONEY, ETC. 62S Although the decision in this case in the Court below must have given rise to this contract. If a mere general intention to over- reach were enough, I hardly know a contract, even between persons of very strict morality, that could stand. [See the remarks of Lord Thurlow in the familiar case of Fox v. Mack- reth, 2 Bro. Ch. 420 ; and of Lord Eldon in Turner v. Harvey, 1 Jacob's Ch. 178; Pothier de Vente, n. 295, 334.] We generally find the case to be, that there has been an attempt of the one party to overreach the other, and of the other to overreach the first, but that does not make void the contract. It must be shown that the attempt was made, and made with success, cumfructu. The party must not only have been minded to overreach, but he must actually have overreached. He must not only have given instructions to the agent to deceive, but the agent must, in the fulfilment of his directions, have made a representation ; and, more- over, the representation so made must have had the effect of deceiving the purchaser ; and, moreover, the pur- chaser must have trusted to that rep- resentation, and not to his own acu- men, not to his own perspicuity, and not to inquiries of his own. I will not say that the two might not be mixed up together, the false repre- sentation of the seller, and the in- quiries of the buyer, in such a way as even then to give a right to re- lief." These remarks are amply illus- trated by American authority. Thus, in Donelson v. Weakley, 3 Yerger, (Tenn.) 1 78, it was held that mere statements by the seller of what the property would thereafter be worth, afforded no ground for rescission, it being no part of the contract, and the matter being one fully within the vendor's own calculation ; and the law was held the same way in Strong V. Peters, 2 Root, (Conn.) 93 ; Bell V. Henderson, 6 Howard, (Miss.) 311 ; Tindall v. Harkinson, 19 Georgia, 448. So of vague general repre- sentations as to matters open to the examination of all ; Davis v. Sims, Hill & Denio, (N. Y.) 234 ; Ander- son V. Burnett, 5 Howard, (Miss.) 165 ; Bell v. Henderson, supra; Anderson v. Hill, 12 Smedes & Marsh. (Miss.) 683 ; Foley v. Cow- gill, 5 Blackf. (Ind.) 18. It is, in fact, no more than the application of the maxim, simplex commendatio non ohligat. " Ordinary mistakes of the purchaser," as was said in Taylor v. Fleet, 4 Barb. S. C. (N. Y.) 95, " re- lative to the qualities of the property, caused by the commendations of the seller — and that which I am con- sidering is but little more — by no means call for the interposition of a court of equity. Such commenda- tions are so common and natural, that they are generally expected, and duly estimated. The proprietor forms an exaggerated opinion of his land, and particularly of its comparative good qualities. He may therefore sincerely and honestly praise them. Common prudence requires that a purchaser should guard against this propensity by personal examination and inquiry. He is excusable for not doing so when such examination or inquiry would be difficult, or when they are prevented by the artifice of the seller It would be im- politic, and often unjust, to set aside 62i THE PURCHASER S RIGHT was reversed,^ yet, as has been said, there was little or no difference of opinion as to the law which should govern it, a sale merely because the seller had warmly commended the qualities of the property, and the buyer had been consequently disappointed. The rule in such case is simplex commendatio non ohligat. Purchasers are often, perhaps generally, disappointed in reference to some supposed quality of what they obtain. To allow them to escape from their bargains for such causes would generate great careless- ness on their part, and would consti- tute a fruitful source of litigation. It would create an uncertainty in our sales which, particularly as to those which relate to real estate, would be most mischievous. These considera- tions should of course apply only to cases free from fraud. Where that exists, the perpetrator should bear all the consequent losses, and the Courts should not hesitate to encounter any labor which may be requisite to de- tect and punish it." It is obvious, however, that the maxim referred to must meet with a strict construction where the land which is the subject of the purchase is at a distance, and the purchaser relies wholly upon its description as given by the vendor ; Bean v. Her- rick, 12 Maine, 262 ; Smith v. Rich- ards, 13 Peters, 26 ; Sandford v. Handy, 23 Wendell, (N. Y.) 260; Van Epps V. Harrison, 5 Hill, (N. T.) 63 ; see Clark v. Baird, 7 Barb. S. C. (N. Y.) 65, where it was held that if the purchaser had the oppor- tunity of ascertaining the true boun- dary line, and neglected to inform himself, he could not recover dam- ages for a misrepresentation of that boundary by the vendor. 1 The Earl of Devon, in delivering his opinion, in Small v. Attwood, con- sidered that there was no proof suffi- cient to fix Attwood with any defi- nite statement of facts, so as to found thereon a charge of fraud and mis- representation, and that the purchas- ei-s did not rely upon the statements made to them, but investigated for themselves. Lord Cottenham was of opinion that the representations made were not intended to show the cost of producing iron at that particular time, but the average results of for- mer years. The first point, there- fore, he thought was, were the repre- sentations matters of fact, or only speculative calculations for the fu- ture ? secondly, were they, whatever they were, acted on by the Com- pany ? thirdly, were they true or false ? and lastly, had anything hap- pened to deprive the Company of the right of insisting upon any inac- curacies in them ? And he concluded that the purchasers considered the representations as averages for the time past, and not as definite state- ments of cost at that particular pe- riod ; that they did not rely upon the representations, but having free ac- cess to all the books, satisfied them- selves of the accuracy of the repre- sentations, and that with full knowl- edge of all the facts complained of, they for several months acted on the contract, and asked and obtained additional time for payment. He was unable, therefore, to perceive that fraud had been made out. Lord Lyndhurst, with whom agreed Lord Wynford, in defending the opinion he had delivered below, TO DETAIN PUKCHASE-MONEY, ETC. 623 and Lord St. Leonards remarks,^ that to the rule of law, as qualified and explained in the House of Lords, no exception considered the law to be clearly set- tled, that where representations are made with respect to the nature and character of the property which is to become the subject of purchase, af- fecting the value of that property, and those representations afterwards turn out to be incorrect and false, to the knowledge of the party making them, a foundation is laid for main- taining an action in a court of com- mon law to recover damages for the deceit so practised, and in a court of equity a foundation is laid for setting aside the contract, which was founded upon a fraudulent basis. " I do not understand," said he, " that that proposition is disputed by either of my noble and learned friends ; it was distinctly laid down and decided in the case referred to in the judgment below, and which has been referred to at your Lordships' bar ; I mean Dobell V. Stevens, 3 Barn. & Cress. 623. That was one of those ordinary cases which frequently come before the courts of common law. It was a case of the purchase of a public house ; a false representation — false to the knowledge of the party making it — was made by the vendor with respect to the extent of the custom as to the quantity of beer that was drawn dur- ing a certain period. The books were in the house ; it was part of the case that the purchaser might have had access to them if he thought proper ; but, notwithstanding that circumstance, it being proved that the representation was false, the Court of King's Bench were of opin- ion that an action for damages might, under such circumstances, be sus- tained." This case, however, was much more distinguishable from Attwood v. Small than Lord Lyndhurst seemed to sup- pose, as the vendor made a definite statement, which was intended to prevent the purchaser from mak- ing investigations which would have shown that statement to be false. Dobell V. Stevens is fully supported by the recent case of Hunt v. Moore, 2 Barr, (Pa.) 107, where the repre- sentation was made that the incum- brances on the property were far less than they really were. " If the facts be as stated," said Rogers, J., with great propriety, " can a court of equity hold this to be a valid ex- change ? And why should it be so ? Because, says the Court (below), it was her folly. The liens were of re- cord, and she ought to have searched) for incumbrances. Can it be the law that we are to repose no confi- dence in each other, without being branded with the charge of folly and losing the earnings of a lifetime. True, says the defendant, I told you a deliberate falsehood, but you ought not to have believed one word I said. Had you searched the records, you would have discovered it was all un- true. ... I never can, and never will consent that any person shall be permitted in this court to take ad- vantage of his own wrong. Had he been silent merely, perhaps this plea would have availed him ; although even in that case a court of equity 1 Sugden's Law of Property, 598. 53 626 THE PURCHASER S RIGHT can be taken, and he adds, with great propriety, " there is no part of the jurisdiction of a court of equity which requires ■would lay hold of slight circumstances to release a victim to such duplicity ; " and the same principle was applied in Napier v. Elam, 6 Yerger, (Tenn.) 108 ; Young v. Hopkins, 6 B. Monroe, (Ken.) 23 ; Campbell u. Whitting- ham, 5 J. J. Marshall, (Ken.) 96 ; Par- ham V. Randolph, 4 Howard, (Miss.) 451 ; Burwell v. Jackson, 5 Selden, (N. Y.) 545 ; see, however, and con- sider Griffith V. Kempshall, Clark's Ch. (N. Y.) K.571,and Tallman w. Green, 3 Sandford's S. C. (N.Y.) 526. The distinction between the al- legaiio falsi and the suppressio veri ■would seem 1;o be that the non-dis- closure, in order to constitute fraud, must be of facts which the seller was under an obligation to disclose. " I make no distinction,'' said Bayley, J., in Early v. Garret, 9 Barn. & Cress. 928, "between an active and a passive communication, for a fraudulent concealment is as bad as a wilful misrepresentation. A fraudu- lent concealment by the seller, of a fact which he ought to communicate, would undoubtedly vitiate the sale ; " see also Pearson v. Morgan, 2 Brown's Ch. 390. So it was said by Mr. Jus- tice Story that " the true definition of undue concealment which amounts to a fraud in the sense of a court of equity, and from which it will grant relief, is the non-disclosure of those facts and circumstances which one party is under some legal or equitable obligation to communicate to the other ;" 1 Story's £q. § 207 ; Young V. Bumpass, 1 Freeman's Ch. (Miss.) 241 ; The State v. Hollo way, 8 Black- ford, (Ind.) 47. The question, however, of what the vendor ought to inform the pur- chaser, and what he is under no such obligation to do, will sometimes be a difficult one, and as was well said in Bean v. Herrick, 12 Maine, 262, " the maxim caveat emptor, is a suf- ficient answer to mere silence in re- gard to defects open to observation, but the line which separates cases where this maxim applies, from others which call for relief, is not defined with precision ; each case rests upon its peculiar circumstances." The ques- tion will often depend much upon the basis of dealing between the parties. " The Court, in many cases," said Lord Eldon in Turner v. Harvey, Jacob, 178, " has been in the habit of saying, that where parties deal for an estate, they may put each other at arm's length, and where incum- brances are matter of record or are patent, and the purchaser views for himself, it is apprehended that equity will not rescind on the ground of mere silence on the part of the ven- dor." This distinction between the allegatio and the suppressio, -^^as ob- served in Richardson v. Bright, 9 Vermont, 368, where the' incum- brance was of record, and it was said that if the vendor had notice, and used no means to prevent knowledoe to the purchaser, who had the means of informing himself within his power, it was no fraud — he was not bound to inform him. See also Griffith v. Kempshall, 1 Clark's Ch. (N. Y ) 576. Of course, however, this principle will be much relaxed, or entirely lose its application, where any such con- TO DETAIN PURCHASE-MONEY, ETC. 6£7 to be executed with more caution than that of rescinding- a contract. This we shall see powerfully exemplified in this very case of Small v. Attwood. If there be fraud, the remedy is clear of difficulty. But the Court ought to be quite sure of the grounds upon which it decides, for by rescinding the contract it may do irreparable damage to one party, whilst, by refusing to interfere, it does not deprive the other party of his remedy, by an action of deceit, if he really have been deceived." ^ fidential relation exists between the vendor and purchaser as to put them upon unequal terms ; Brice v. Brice, 5 Barb. S. C. (N. Y.) 540 ; notes to Fox V. Maokreth, 1 Leading Cases in Equity. The converse of the position stat- ed above is equally true, for, as was .said by Lord Eldon, in the case just cited, in referring to the remarks of Lord Thurlow in Fox v. Mackreth, 2 Bro. Ch. K. 420, " If an estate is offered for sale, and I treat for it, knowing that there is a mine under it, and the other party makes no inquiry, I am not bound to give him any in- formation of it. [Harris v. Tyson, 12 Harris, (24 Penn. State E.) 360.] He acts for himself, and exercises his own senses and knowledge. But a very little is sufficient to affect the appli- cation of the principle. If a single word is dropped which tends to mis- lead the vendor, that principle will not be allowed to operate ; " and, in general, it may be said that any course of dealing calculated to create a false impression on the purchaser will amount to a fraud; Misner v. Granger, 4 Gilman, (111.) 69 ; Young V. Bumpass, 1 Freem. Ch. (Miss.) 241 ; Bean v. Herrick, 12 Maine, 262; Early v. Garrett, 9 Barn. & Cress. 928, as where the seller should state facts, which were true in them- selves, but so expressed as to give the idea that they conveyed the whole trust, while a material fact is kept back; Allen v. Addington, 7 Wendell, (N. Y.) 10, 11; Id. 75; Kidney u. Stoddart, 7 Metcalf, (Mass.) 252. 1 The insertion of the following remarks of that learned author, after an able condensation and review of the facts in the case, seems to be ap- propriate. " I thought at one time, from its complicated facts, that it could hardly, perhaps, be cited as an authority for anything beyond the general principle : but I felt bound to put the reader in possession of a general view of the ease, and my present calm review of it has satisfi- ed me that it is a precedent of much importance. It affords an excellent commentary on the rule of law, and exemplifies the process by which we are to arrive at a just conclusion. The opposite views taken of the particular evidence is not important, but the principles by which the House of Lords were guided, are, indeed, im- portant. Previously to this case, the instances were rare in which a pur- chaser, on the ground of misrepresen- tations prior to a written contract. 6£8 THE PURCHASER S RIGHT In the subsequent case of Vigers v. Pike,^ the plaintiffs having filed a bill to compel payment of a residue of the purchase-money, the defendants filed a cross-bill for relief on the ground of misrepresentation and fraud. The sub- ject of the contract was a lease of mines, which the defend- ants had entered upon and worked for three years. The cross-bill was dismissed in the Irish Court of Chancery, and upon appeal taken to the House of Lords, the decree was affirmed, the Chancellor observing, that in a case depending upon alleged misrepresentations as to the nature and value which was silent on that head, and, after inquiry, and with means of knowledge, and possession, had ap- plied to a court of equity to rescind the contract. If the decree had re- mained undisturhed, followed as it was by an injunction operating on the funded property into which the purchase-money had been invested, no doubt many such experiments would have been made. But the decision of the Lords placed the doc- trine on the right foundation. Fraud is a sufficient ground for relief, but it is not to be made out from ambiguous papers where the parties investigated the books and accounts, and inquired for themselves, and with possession and full means of knowledge, delayed for some months to apply for relief. Indeed, it is manifest that the same conclusion would have been arrived at, if the application had been made at an earlier period. The danger of resting upon such evidence as was produced in this case to impeach the written contract, is proved by the opposite views of the very learned persons who gave judicial opinions upon the force and effect of it ; but the Lords in effect decided, that where there are ample means of forming a judgment from written papers and correspondence, much credit is not to be attached to alleged conversations 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 the learned author's work on Vendors and Purchasers (vol. i. p. 383), he had remarked, that " it was not too much to expect, that if, in a contract of such magnitude, in which, of course, there was previous inquiry, the pur- chasers bought on the representation of the seller as to the cost of produc- ing pig iron, they should have requir- ed him to bind himself hy the contract to those representations, and to agree to reduce the purchase-money if they proved to be incorrect. Such a sim- ple precaution would have prevented the vast litigation in that case ; but it is clear, that if such a demand had been made, it would not have been acceded to, and that if it had been refused, the purchasers would have executed the contract without it." ' 2 Drury & Walsh, 1 ; on appeal to the House of Lords, 8 Clark & Fiu. 562. TO DETAIN PURCHASE-MONEY, ETC. 629 of the thing purchased, the defendant could not adduce more conclusive evidence or raise a more effectual har to the plaintiff's case, than by showing that the plaintiff vras, from the beginning, cognizant of all the matters complained of, or, after full information concerning them, continued to deal w^ith the property, and even to exhaust it in the enjoy- ment, as by working mines.'^ In the recent case of Gibson v. D'Este,^ the question was whether a purchaser was entitled to rescind an executed contract because of the omission to mention to him the existence of a right of way over part of the grounds in front of the house. The former owner of the property having complained of this right of way as a nuisance, had obtained permission from the parish to enclose it in, acknowledging 1 See accordingly, Pintard v. Mar- tin, 1 Smedes & Marsb. Ch. (Miss.) 126 ; 1 Story's Equity, § 203 a ; Cun- ningham V. Fithian, 2 GUman, (111.) 650 ; Masson v. Bovet, 1 Denio, (N. y.) 69; Tindall v. Harkinson, 19 Georgia, 448 ; GJasscock v. Minor, 1 1 Missouri, 655 ; Lookridge v. Foster, 4 Scammon, (III.) 570. Length of time, however, will of course be no element to bar the plaintiff from re- lief, if he has acted promptly upon the discovery of the fraud ; McLean v. Barton, Harrington's Ch. (Del.) 3 79; Concord Bank v. Gregg, 14 N. Hamp. 331. In the much litigated case in New York of Whitney v. Allaire, 4 Hill, 484, 4 Denio, 554, 1 Comstock, 313, it was held that although the purchaser would not be suffered to re- scind the contract, if, after the dis- covery of fraudulent representations as to its territorial extent, he had gone on to afiirm it, yet that such affirm- ance of the contract only made it bind- ing as such, and did not destroy the 53* right to recover damages for the tort, as a distinct and separate transaction, " and it is obviously just, that the vendee should be able to insist on the performance of a contract, which may be essential to his interests, without waiving his right of compensation to the full extent to which he has been led to make a worse bargain, by the misrepresentations of the vendor;" Notes to Chandelor v. Lopus, 1 Smith's Leading Cases. 3 2 Younge & Collier, N. S. 542 ; on appeal to the House of Lords, 1 Clark & Fin. N. S. 605 ; reported there under the name of Wilde v. Gibson. 'Mademoiselle D'Este, the appellant, having married Sir Thom- as Wilde, who was afterwards Chan- cellor, under the title of Lord Truro. This case is well condensed in Sug- den's " Law of Property as admin- istered in the House of Lords," p. 615, and the reversal of the decree of the Vice-Chancellor, severely criti- cized by him at great length. 630 THE purchaser's right by a deed that the enclosure was made by consent of the parish — agreeing that a walk should be reopened by her on seven days' notice — that its hue should be designated by proper mark-stones — • that she- would keep open another road in a different direction, and would pay five shillings annually to the parish, by way of acknowledgment. A pale fence was then erected, enclosing in two places so much of the way as traversed the grounds, and shortly after, three mark-stones were placed in a direction supposed to desig- nate the original line of way. These stones were outside of the pale fence, and in fact, on the line which divided the parish from an adjoining town. The substituted road was kept open, and the rent regularly paid by her, and after her death by her daughter, who became the owner. The latter employed a surveyor to lay out the property in- to building-lots, and her solicitor and agent informed the surveyor of the claim of the parish to the way, and that its line was marked with stones. The surveyor, among other things, planned a road, which was to comprise the line of this way, and the whole property was then laid out into lots, with this road running through, and thus sold. The abstract did not refer to the agreement with the parish, as the road was supposed to have included the way, nor was the purchaser informed, by the agent, of these circum- stances. The parish soon after claimed their half-yearly rent, which the purchaser refused to pay, and filed a bill to rescind the contract on the ground of fraudulent conceal- ment. No charge of personal fraud whatever was made on the argument against the defendant, nor was there any evidence that she knew of the deed which her mother had executed, or of the existence of the way, or that she knew particularly of the payments of the rent, except that they appeared in the accounts rendered to her by her agent.^ 1 It should be observed that these payments did not so specifically appear TO DETAIN PURCHASE-MONEY, ETC. 631 Under these circumstances, the Vice-Chancellor decreed that the sale should he rescinded with costs, being of opinion that the contract and its completion took place under con- cealment from the purchaser, and substantially under mis- representation to him of material facts within the knowledge of the defendant or her agent, whose knowledge for the present purpose was to be held equivalent to her knowledge, but not within the knowledge of the plaintiff, he being with- out the means of knowing the true state of these facts. But this decree was reversed in the House of Lords,-* principally, as it was said, on the ground that the doctrine of constructive notice to the defendant, from the knowledge of her solicitor, could not be applied to the case. " The effect of constructive notice," said Lord Cottenham, in deliv- ering his opinion, " in cases where it is applicable, as in contests between equities of innocent parties, is sufficiently severe, and is only resorted to from the necessity of finding some ground for giving preference between equities other- wise equal ; but this is the first time I ever knew it apphed in support of an imputation of direct personal fraud and misrepresentation. The two things cannot exist together — there can be no direct personal fraud without intention, and there can be no intention without knowledge of the fact con- cealed or misrepresented ; and if there be knowledge, the case of constructive notice cannot arise ; it would be ab- sorbed in the proof of knowledge."^ With this opinion, in the accounts as to convey definite vendor and a false representation, information to the owner as to the both of which are wanting in the ground of their payment. present case. A case much more in 1 Wilde V. Gibson, 1 Clark & Fin. point is that of Legge v. Croker, 1 N. S. 605. .Ball & Beat. 506, in which the lessor 2 Lord Cottenham further said, had assured the lessee that there was that the decree could not be support- no right of way over the ground ; ed on the authority of Edwards v. that there had been formerly, but McLeay, (supra, p. 616), "for in that it had been legally stopped by a that case there was knowledge in the grand jury presentment forty years 632 THE purchaser's right Lord Brougham entirely concurred, and Lord Campbell thought it was necessary to observe strictly the diSerence between the rules which apply to a contract still executory, and one actually executed. " If there be in any way what- ever," said he, " misrepresentation or concealment, which is material to the purchaser, a court of equity will not compel him to complete the purchase ; but where the conveyance has been executed, I apprehend that a court of equity will set aside the conveyance only on the ground of actual fraud. And there would be no safety for the transactions of man- kind, if, upon a discovery being made at any distance of time, of a material fact not disclosed to the purchaser, of which the vendor had merely constructive notice, a convey- ance which had been executed could be set aside." He en- tirely dissented from the position that an action of deceit could be maintained without positive fraud, and said that there was no evidence that the solicitor of the vendor re- ceived any knowledge of the direction of the road, or of the deed of the vendor's mother, in the course of his agency. " The knowledge, then, amounts to nothing. He had no knowledge which would show that he was guilty of a fraudulent misrepresentation." ^ before. It turned out that there was ^ The strictures of Lord St. Leon- a foot-way, the presentment applying ards in " The Law of Property as only to a carriage-way, and the les- administered in the House of Lords," see was convicted for obstructing it, p. 637, upon the reversal of the de- whereupon he filed his bill to be re- cree of the Vice-Chancellor, are very lieved from the lease ; but Lord severe : " It does not seem to be cor- Manners dismissed his bill, saying, rect," said he, " to compare this with ' If there were a wilful misrepresen- the common case of constructive no- tation, the plaintiff might be entitled tice. If I honestly buy an estate to relief, but the lessor conceived without notice of an incumbrance, himself entitled in point of law in yet if my agent know of it, or there asserting that there existed no right were sufEcient circumstances to lead of way ; it cannot be called a mis- me to inquire, I am bound by this representation.' That was a much constructive notice. This is, no stronger case against the lessor than doubt, very hard ; for I am bound the present is against the vendor." by an incumbrance of which I really TO DETAIN PURCHASE-MONEY, ETC, 68S The foregoing cases in the House-ef Lords have been re- ferred to at some length, both on account of their intrinsic had not notice. But does this apply to a case, where an owner of an es- tate in possession pays interest or rent, under a charge created by the person under whom he claims as a volunteer — a charge which he can- not displace, and which he must sat- isfy ? The notice runs, as it were, with the charge. The payment by an agent cannot weaken the case where the agent knows why he pays, and the receiver knows why he is en- titled to receive. The owner does not think fit to inquire why the pay- ment is made, although marks to sup- port the right are set up on the es- tate, and the deed creating the charge is in the custody of a person in the town who holds out for his benefit, and the right is a public one, and publicly claimed at intervals. The neglect to inquire does not impeach the charge or weaken the effect of the payments. The question does not appear to be whether the perusal of the deed or the entry of the pay- ments would show the precise line of road, but whether the deed and pay- ments which bind the owner to the actual line of road, are not as, be- tween him and a purchaser without notice, conclusive evidence that the seller knew, as he was bound to know, the exact rights which were secured by the deed and acknowl- edged by the payments. On the one hand, to fix an owner under such cir- cumstances, with that which he is bound to know, inflicts no injury. It renders him neither more nor less liable. But to consider these circum- stances as conveying to him no notice of the real nature of the charge, is to enable him upon a sale to throw the burden off from his own shoulders, and to cast it upon those of an inno- cent purchaser, who was in no man- ner liable to it. . . Very slight evi- dence, if any were required, ought to be sufficient to fix the owner of an estate with the knowledge of an ac- tual charge on his estate, his liability to which admits of no dispute. The charge of personal fraud not sustain- ed, where not essential to the relief, may properly have an effect upon the costs, but not upon the merits. The case in the Lords seems to have been decided solely on the absence of deceit, on the absence of personal fraud on the part of the vendor, and on the want of sufficient knowledge on the part of her and her agents ; and upon these grounds it is submit- ted that thejudgment cannot be sup- ported." " It is also worthy of no- tice, and seems," says the learned author (p. 650)," to have escaped all attention, that the defendant cove- nanted that notwithstanding any act done by herself or her mother, the former owner, she was seized of (all and singular the lands, hereditaments, mansion-house, and premises convey- ed, of a perfect and indefeasible es- tate of inheritance in fee-simple in possession, without any manner of condition, qualification, restriction, matter or thing whatsoever, expres- sed or implied, and which could re- voke, determine, abridge, qualify, al- ter, charge, incumber or prejudic- ially affect the same -in any manner aforesaid) with the other usual cove- 6S4i THE purchaser's right importance, as decisions in the court of last resort in Eng- land, and because they show, as conveniently as any other class of cases, the principles by which the rescission of exe- cuted contracts are to be governed in cases of improper concealment or misrepresentation. It will have been per- ceived that the difficulty which such cases present, consists not so much in the principles themselves, as in their appli- cation. The exception, however, recognized by this class of cases, seems to be the only one to the well-settled rule that the purchaser's right to relief, after the execution of his deed, depends solely on the covenants for title which that deed contains,^ and hence the question arises how far the pur- chaser is allowed to detain the unpaid purchase-money, or recover it back, if already paid, or to have the aid of a court of equity in furtherance of these ends, where there is a defect or incumbrance which is covered by the covenants for title which he has received ; in other words, as, in the absence of covenants, the purchaser can have no relief as to the purchase-money, how far the presence of covenants en- titles him to relief.^ nants following. Now, can a more of this work I may be permitted to distinct representation of a seizin in recall the words of Lord Eldon, that fee, not controlled by any deed exe- " fewer cases turn upon greater nice- cuted by;the mother of the vendor, ties than those which involve the be framed ? " But it is probable that question whether a contract ought to instead of this fact having escaped the be delivered up to be cancelled, or attention of the able counsel in this whether the parties should be left carefully argued case, it was not to their legal remedies," Turner v. deemed a proper subject of attention, Harvey, Jacob's Ch. R. 169, and as it is believed that covenants for the the expression of Chancellor Kent, title are not properly to be regarded that on this subject " the law does not as representations, in the sense in seem to be clearly and precisely set- which that word is used in this con- tied, and it is difficult to reconcile nection. the cases, or make the law harmonize 1 Supra, p. 614. on this vexatious question ; " 2 Kent's 2 Upon this branch of the subject Com. 471. TO DETAIN PUnCHASE-MONEY, ETC. 635 The cases upon this subject will be found far more nu- merous in this country than in England, for which there are obvious reasons. The almost universal practice there of limiting the covenants for title to the acts of the vendor, his ancestor, or the last person claiming by purchase in its proper sense, necessarily confines such questions between much fewer parties, than where, as in parts of this country, it is not unusual for purchasers to demand and receive gen- eral covenants for the title.^ Where the covenants are gen- eral, the whole previous question of title is thrown open. The vendor covenants that he is seized of an indefeasible estate — that it is free from all incumbrance — or that he will warrant and defend it to the purchaser against all persons whomsoever. Hence, any defect or incumbrance, no mat- ter by whom caused, or how far back in the chain of title, can raise a question which, in England, could only arise where the defect was created by a single person, that is, the vendor, or perhaps his ancestor or testator. The cases which are to be found in the English books as to payment of the purchase-money depend almost entirely on questions which arise before the execution of the deed, and are most frequently presented upon a bill filed for spe- cific performance of the contract ; ^ and even where ques- tions arise after its consummation, the subjects of contro- versy are much more restricted than in American cases ; for in England, wnere the covenants are limited to the acts of the vendor, he is very apt to be aware of any defects or in- cumbrances of his own creation, and hence questions as to the purchase-money, after the execution of the deed, chiefly turn, as has been just seen, upon the point of knowledge 1 See supra, p. 551. treatise on Vendors and Purchasers, 2 The Enghsh cases as to specific pp. 457, 458, and in the note to Seton performance of contracts of sale of v. Slade, 2 Leading Cases in Equity, real estate are very well collected the American authorities will also be and arransed in Mr. Dart's recent found. 686 THE purchaser's right and concealment by him, or the neglect of provident vigi- lance 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 the title, many cases must arise where the question of con- cealment is not presented, as the vendor cannot be aware of every defect which any previous owner may have caused. Before considering particularly the cases which allow a purchaser to detain his purchase-money by reason of defects or incumbrances, it may be proper briefly to advert to the principles on which such a right is based. It is familiar that the system of the common law did not recognize the propriety of settling cross demands in the same suit. The object of each action was to determine the rights of the plaintiff as to the particular subject of his de- mand, without regard to any claim which the defendant might have, growing out of the transaction ; and it was not until comparatively modern times, that courts of law were enabled by the statutes of bankruptcy,^ and the statutes of set-off,^ to give to a defendant any redress except by means of a cross action ; and although courts of equity had, before this time, been in possession of the more liberal doctrine (which was famihar to the civil law by the term compensation), their jurisdiction seems to have been little defined.^ It was some time before the spirit which led to these statutes infused itself into cases which did not come within the letter of their enactment. Thus with respect to per- sonal estate, the purchaser of a chattel was not allowe.d, in 1 4 Anne, c. 17; 5 Geo. I. c. 11 ; 3 See 2 Story's Eq. Jurisp. c. 38, 5 Geo. II. c. 30; 46 Geo. III. c. 135; on Set-off; Freeman v. Lomas, 9 6 Geo. IV. c. 16. Hare, 109, 5 Eng. Law & Eq. R. 2 2 Geo. II. 0.22; 8 Geo. II. c. 1 20. 24. TO DETAIN PURCHASE-MONEY, ETC. 687 an action for its price, to set up, as a defence, a breach of warranty either as to quality or title, but was forced to pay the amount, and driven to a cross action by which to estab- lish his own claim.^ It is not necessary here to analyze the train of decisions which have departed from this severity of rule, and have finally estabhshed the principle, both in En^-- land and in most parts of this country, that a purchaser may, in a suit brought for the purchase-money of a chattel, take advantage of the breach of warranty, as a defence, not as a technical set-off", but as evidence of failure of consider- ation, and in mitigation of damages. Such a doctrine was at first totally denied — then a distinction was taken, as to its admissibility as a defence, between actions brought to recover the contract price, and actions brought on securities given for that price ^ — then the defence was admitted when it went to the whole consideration, but rejected when it touched only a part ^ — until finally the principle seems well settled as has been stated.* 1 See the cases cited in Basten v. Butter, 7 East, 479 ; and per Lord Ellenborough in Farnsworth v. Gar- rard, 1 Campbell, 39 ; Crowninshield u. B,obinson, 1 Mason, 93 ; Thornton u. Wynn, 12Wheaton, 183. In Mog- gridge v. Jones, 3 Campbell, 38, and 14 East, 486, Lord Ellenborough applied the old rule to a case where the con- sideration of a bill of exchange was the execution of a lease. The de- fendant was let into possession, and the plaintiif then refused to execute the lease. It was held that this was no defence to the bill — that the de- fendant had his remedy upon the agreement. ^ Morgan v. Richardson, 1 Camp- bell, 40 ; Tye v. Gwynne, 2 Id. 346 ; per Denison, J., in Eobinson v. Bland, 2 Burrow, 1082; Mann v. Lent, 10 54 Barn. & Cress. 877, and it would seem that this distinction still exists in the Court of Exchequer; War- wick V. Nairn, 10 Excheq. 761 ; 32 Eng. Law & Eq. E. 493. 3 Templer v. McLaehlan, 5 Bos. & Pull. 136 ; approved by Shaw v. Ar- den, 9 Bingham, 287 ; Day v. Nix, 9 Moore, 159; Pulcifer v. Hotchkiss, 12 Connect. 234; see MoAlpin v. Lee, Id. 129. 4 Allen V. Cameron, 3 Tyrwhitt, 907; Poulton v. Lattimore, 9 Barn. & Cress. 259 ; Street v. Blay, 2 Barn. & Adolph. 456 ; Mondell v. Steel, 8 Mees. & Welsby, 858 ; Herbert v. Fgrd, 29 Maine, 546 ; Keed v. Prentiss, 1 N. Hamp. 1 74 ; Shepherd v. Temple, 3 Id. 458 ; Britton v. Turner, 6 Id. 481 ; Elliott V. Heath, 14 Id. 131 ; Dodge V. Tileston, 12 Pickering. 6S8 THE purchaser's eight It is difficult, however, to say under what precise head such a defence is to be classed. It could not, in strictness, come under the head of set-off", for the purchaser's rights, in general, sound in unliquidated damages, which do not come within the scope of the statutes of set-off. It has been admitted, moreover, in cases where failure of consider- ation was not in point.-^ In England, it has very lately been held, that such a defence is not by way of a cross action, but by showing how much less the subject-matter of the contract was worth, by reason of the breach of the war- ranty,^ while in New York it has somewhat recently received the name of recoupment.^ But by whatever technical term such a defence may be called — whether it be compensation, set-ofi', failure of con- sideration, or recoupment — the principle on which it is based is the same as that which led to the statutes of set-ofF, viz., that of preventing circuity of action; and to whatever extent the common-law rules of pleading may have rejected (Mass.) 328 ; Harrington I'. Stratton, Tvick on Damages, c. 17, and the 22 Id. 510; Perly v. Balch, 23 Id. notes to Chandelor v. Lopus, 1 284 ; Goodwin v. Morse, 9 Metcalf, Smith's Leading Cases, and Cutter (Mass.) 279 ; Dorr v. Fisher, 1 Cush- v. Powell, 2 Id. ing, (Mass.) 272 ; McAllister?). Reab, l Ives v. Van Epps, 22 Wendell, 4 Wendell, (N. Y.) 489 ; S. C. 8 Id. (N. Y.) 155. 109 ; Batterman v. Pierce, 3 Hill, (N. a Mondell v. Steel, 8 Mees. & Wels- Y.) 171 ; Whitney v. AUair, 4 Denio, by, 858. (N. Y.) 557 ; S. C. 1 Comstock, 306 ; 3 The subject here so briefly and Steigleman v. Jeffries, 1 Serg. & incidentally touched upon, will be Kawle, (Pa.) 478 ; Patterson v. Hul- found very fully and ably considered ings, 10 Barr, (Pa.) 507 ; Peden v. in the American notes to the cases of Moore, 1 Stew. & Porter, (Ala.) 71 ; Chandelor v. Lopus and Cutter v. Robinson v. Wilson, 19 Georgia, Powell, 1 and 2 Smith's Leading 507 •, Mercer v. Hall, 2 Texas, 284; Cases, and in a chapter on Recoup- Deshaw. Robinson, 17 Arkansas, 244; ment, in Sedgwick on Damages ; see Brandt v. Foster, 5 Clarke, (Iowa,) also passim, 2 Kent's Com. 470, &c. ; 291 ; Withers v. Green, 9 Howard, Withers v. Green, 9 Howard, (U. S.) (U. S.) 214 ; Van Buren v. Digges, 214, and Wheat v. Dotson, 7 Arkan- 11 Id. 461, overruling Thornton v. sas, 699. Wynn, 12Wheaton, 183. See Sedg- TO DETAIN PURCHASE-MONEY, ETC. 639 those defences which militated against singleness of issue, it has been found, in modern times, less inconvenient to deter- mine, in the same action, as well the rights of the defend- ant as those of the plaintiff, than to oppress courts and par- ties with different suits, springing from the same subject- matter. In considering the rights of the purchaser, at law, it may also be remarked, that according to the rules of the common law, if the purchase-money of real estate were secured by a bond, or any other sealed instrument, no defence whatever could, in the absence of illegality of consideration,^ be ad- mitted to its payment, even where the title to the land had utterly failed, and the purchaser been evicted from its pos- session. There could be no defence on the ground of fail- ure of consideration, for the seal imported a consideration, which the purchaser was estopped from gainsaying ; ^ nor could there be a defence by way of set-off, because the pur- chaser's rights sounded in unliquidated damages. Hence, there could be no defence, at common law, to the payment of purchase-money, when secured by a specialty, unless where illegality had, in some way, entered into the contract.^ 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 statutory provisions, so far as to entitle the obligor of a bond, under some restrictions, to show, by way of defence, its failure, as he formerly could have done its illegality of consideration ; * and where such is the case, it is immaterial, 1 Fraud would be no defence, un- 3 See, as to illegality, the notes to less the fraud related to the execu- CoUins v. Blantern, 1 Smith's Lead- tion of the instrument ; Rogers v. ing Cases. Colt, 1 Zabriskie (N. J.) 704; see < Case v. Boughton, 11 Wendell, infra. (N. Y.) 107 ; Wilson v. Baptist Soci- 2 Collins V. Blantern, 2 Wilson, ety, 10 Barb. S. C. (N. Y.) 312; 347 ; Vrooman u. Phelps, 2 Johns. M'Knight v. Kellet, 9 Georgia, 1 78 ; Rogers v. Colt, supra. 534. 640 THE PURCHASER S RIGHT SO far as this question is concerned, whether the purchase- money be secured by a specialty, or by a bill or note. Apart from the form in which the contract is expressed, it would seem immaterial whether the position assumed by the purchaser be that of a defendant resisting payment of the purchase-money, or that of a plaintiff seeking to recover it back in an action for money had and received ; as there would seem to be no reason on principle, why, if the pur- chaser have a right to permanently detain unpaid purchase- money on the ground of a defect of title, he should be pre- vented from recovering back that for which he has received no value. But the position of the purchaser of real estate, as a plaintiif, must, at law, necessarily be confined to a suit upon the covenants in his deed, which suit (though the same end may be obtained by means of it) depends, to some ex- tent, upon different principles and machinery from an action which seeks to rescind the contract, and recover back its consideration. Hence it may be safely said, that at law, a purchaser has no right, after the execution of his deed, to recover back his consideration-money on the ground of a defect or failure of title. His remedy in such case is by an action of covenant, and not by an action of assumpsit.' But when the position of the purchaser is that of a defendant, although " the technical rule remits him back to his cove- 1 Toussaint v. Martinnant, 2 Term, tiff, the promise was -without consid- 104 ; Hunt v. Amidon, 4 Hill, (N. Y.) eration, and that the plaintiff's only 345 ; Tillotson v. Grapes, 4 N. Hamp. remedy was on the covenants in his 448 ; (see Lea o. Dean, 3 Wharton, deed. And in Moyer v. Shoemaker, (Pa.) 329, which is not opposed to 5 Barb. S. C. (N. Y.) 319, it was these cases). In Miller v. Watson, held, that apart from this ground, 5 Cowen, (N. Y.) 195, the plaintiff before an action of assumpsit could proved a promise on the part of his be maintained by a purchaser, to re- vendor, who had sold to him with a cover the consideration paid by him covenant of warranty, to repay the for land sold with covenants, he must consideration-money, as the title had reconvey the land to the vendor. See failed, but the Court held that there supra, p. 76. having been no eviction of the plain- TO DETAIN PURCHASE-MONEY, ETC. 641 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, to prevent circuity of action, the defence at law of a failure of title, has been in some cases al- lowed. It is not strange that where there has been no uniform legal principle under which such defences as those now treated of have been classed, there, should have been some discrepancy in the various cases as to the grounds of their decision. As the authorities generally seem to treat the question, in a court of law, as one arising from failure of consideration, it becomes necessary to inquire what the con- sideration for the purchase-money of real estate actually is. Although the mere receipt of the deed, comprising certain covenants for title, does not, unless in peculiar cases, of itself form a consideration,^ yet, as has been mentioned, the 1 2 Kent's Commentaries, 473. 2 In the early case in Maine of Lloyd V. Jewell, 1 Greenleaf, 352, the defendants were sued on one of several notes given by them for the purchase-money of real estate, -which the plaintiff had conveyed with cov- enants for seizin, against incumbran- ces, and of warranty, with a condi- tion that the grantees should not re- cover of the grantor for the breach of those covenants any greater or further sum than the consideration with interest, payable in cash to the amount received on said notes, and the residue by delivering up to be cancelled such of the notes as should remain unpaid. The defendants proved that the plaintiff had no title to a specific part of this land, which was in the actual adverse possession of the lawful owner, and that the 54* value of this part exceeded the amount of the note in suit. A ver- dict having been found for the de- fendants, it was argued for them, on a motion for a new trial, that both on general principles, and from the con- struction of the deed, which seemed framed to meet such a case, the ver- dict should be allowed to stand ; but Mellen, Ch. J., who delivered the opinion of the Court, said that the Supreme Court of Massachusetts had a long series of years proceeded upon the principle, that the covenants in a deed of conveyance (or if no deed had been given, but only a bond or covenant to give a deed, then such bond or covenant) constituted a val- uable consideration for the note (and such seems to have been thought in Gridley v. Tucker, 1 Freem. Ch. (Miss.) 211), and that the want or. 642 THE PURCHASER S RIGHT absence or presence of these covenants, or- of some of them, has a very material bearing upon the question. Thus, failure of title would be no legal de- fence ; and acting upon this sup- posed train of decision, -whicli, it was said, laid down the true principle of law, it was held that the defendants, having received such covenants, could haye no defence to the pay- ment of the notes. It was further said, that whatever claim the defend- ants might have was upon their cov- enants, and that to allow them in that action of assunapslt thus to de- fend themselves, would be to give them a greater right as defendants than they could have as plaintiffs. It was further suggested that a diffi- culty might arise in the way of such a defence from the measure of dam- ages, which, in that State were fixed, on a covenant of warranty, by the value of the land at the time of evic- tion, which might be much greater or less than the purchase-money ; and lastly, it was said, that if such a de- fence were allowed in that action, not only would there be nothing on the record to prevent the recovery of dam- ages upon the covenant for the very defects for which an allowance had thus been made, but nothing on which the payee of the note could found an action against his own warrantor. It has, however, been since denied in Massachusetts, that any such course of decision as that referred to by the Court in Lloyd v. Jewell, ever pre- vailed in that State. The cases of Fowler v. Shearer, 7 Mass. 19, and Phelps V. Decker, 10 Id. 279, merely contained loose dicta, and the doc- trine that the covenants in an exe- cuted deed, or the articles themselves in an executory contract, formed so valuable and conclusive a considera- tion as to preclude all question as to the title, seems opposed to principle and authority; Knapp u.Lee, 3 Pick- ering, (Mass.) 459 ; Kice v. Goddard, 14 Id. 293 ; Frank v. Vinson, 20 Id. 110 ; TiUotson v. Grapes, 4 N. Hamp. 448 ; Cook v. Mix, 11 Connect. 432. With respect to the other grounds of the decision in the case of Lloyd V. Jewell, it may be observed that the objection as to the measure of dam- ages seems wanting in application, since, if circuity of action is to be avoided, it is as competent and as convenient for the jury to assess the damages by any standard in that action, as in one in which the ven- dee were the plaintiff; Tillotson v. Grapes, 4 N. Hamp. 448. The ob- jection on the ground of there being nothing to prevent the defendant, after having received a reduction of damages, by reason of the defect, from turning round and suing upon the covenants, and thus obtaining a double compensation, would equally well apply to every other case of set- off, especially where its subject was not embodied in a Special plea, but, as is usual in American practice (and as was also not unfrequent in Eng- land before the new rules), contained in a notice and given in evidence un- der the general issue. It is obvious, as was said in Tallmadge v. Wallis, 25 Wendell, (N. Y.) 116, that the eflfect of setting up such a defence would operate as an estoppel to the pur- chaser, if he should attempt to bring an action for a breach of warranty, TO DETAIN PURCHASE-MONEY, ETC. 643 where the deed contains no covenants, the purchaser is wholly without remedy ; for the consideration was the mere transfer to him of the estate of the vendor, who was to be in no way responsible for the title, and if the deed be deliv- ered to the purchaser, he has received the entire considera- tion for which he bargained, entirely irrespective of any future events, and the question of good or bad title is irrel- ative.'^ Where the covenants are limited to the acts of the vendor, the consideration would seem to be the present trans- fer of his estate, in the same condition as that in which he himself received it, and the future performance by himself and his heirs, when necessary, of the undertaking that the purchaser and those claiming under him shall not suSer from any of his or their acts.^ The consideration is thus twofold : one which moves from the vendor at the time of the execution of the deed, and the other, which is executory, or, as it may be called, a continuing consideration. Where a defect has been caused by any one in the chain of title prior to the vendor, this can form no defence to the pur- after he had been once satisfied for of action, was recognized with ap- his damages in this manner; or if the probation, and the principle applied, jury found a verdict which, in terms, although with respect to real estate or by necessary implication, nega- it is said to be the settled law of the tived the existence of the facts set State that a partial failure alone of up in this plea. The later cases in title to land conveyed, constitutes no Maine do not appear to support the defence to a note given in payment reasoning adopted by the Court in of it ; Morrison v. Jewell, 34 Maine, Lloyd V. Jewell, but treat the case 146; Thompson u. Mansfield, Id. 490. as having decided merely that a, par- ' Supra, p. 614. iial failure of consideration was no ^ Xhe analogy between the sale of defence to an action on the contract real estate with covenants, and the price ; Wentworth v. Goodwin, 21 sale of chattels with warranty, has Maine, 154; Jenness u. Parker, 24 already been noticed, and Lord Ten- Id. 294 ; Herbert v. Ford, 29 Id. terden, in Street v. Blay, 2 Barn. & 554 ; and in the last of these cases, Adolph. 456, said that the plaintiff's the tendency of modern decisions to compliance with his warranty was allow a broader latitude of defence part of the consideration for the con- for the purpose of avoiding circuity tract price. 64<4< THE purchaser's right chaser from payment of the purchase-money, for the consid- eration between himself and his vendor is not affected. Where the covenants are unlimited or general, the con- sideration seems to be the present transfer of the vendor's estate, and the future performance by himself and his heirs, when necessary, of the undertaking, that the purchaser and those claiming under him shall not suffer from any of his or their acts, or from the acts of any one prior to him in the chain of title. Hence it may be possible for any defect or incumbrance whatever, whether caused by the vendor or his predecessors, to touch the consideration between himself and the purchaser. In the application of these principles, it follows that where the only covenants in the deed are of warranty or for quiet enjoyment, which are broken only by an eviction, actual or constructive, the only difficulty will be in determining whether there has or has not been an eviction, within what is conceived to be the true meaning of the term.^ If there has, the purchaser would be at that time entitled to recover damages upon these covenants, and circuity of action is clearly prevented by permitting him, when sued for the pur- chase money, to call upon the plaintiff to perform his cove- nant in that action ; in other words, by allowing the former to defend himself to the extent of the measure of damages ; or, if the opportunity to do so has not been presented in a court of law, he can have recourse to equity, which, in the exercise of a familiar jurisdiction, can, by its varied machin- ery, 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 means and under such equitable conditions, &c., as the exi- gencies of the case may require.^ 1 Supra, p. 241. ministeriug relief, supra, pp. 154, 365, 2 See passim as to the modes of ad- &c. ; Morgan v. Smith, 1 1 Illinois, 201 . TO DETAIN PURCHASE-MONEY, ETC. 64<5 If, however, there has been no such eviction as would entitle the purchaser at that time to damages, it is appre- hended that where the covenants of warranty or for quiet enjoyment are the only ones in the deed, no such defence can he permitted at law, and no ground exists on which to found an equitable jurisdiction. Where the deed contains a covenant for seizin, cases of difficulty may often arise, except in those States in which this covenant is held to be fully satisfied by the transfer to the purchaser of a present possession.^ It has been said, in a former chapter, that in suing upon this cove- nant, cases may occur in which, although the purchaser may have paid nothing to buy in the paramount title, and may still be in possession, yet the failure of title, is so complete as to authorize the assessment of the damages by the consideration-money or a proportionate part of it, and that in such cases it might be proper and even necessary for the plaintiff to offer to reconvey the interest or title actually vested in him, and that although it would be no bar to his recovery that he had not done so, yet that the Court might stay the execution, or reserve the actual entry of the judg- ment till such conveyance were made.^ It is difficult to say how far these principles can be made to apply to actions where the defendant seeks to detain purchase-money under similar circumstances. On the one hand, there are reasons 1 See supra, p. 20 et seq. resentatives, and the personal rep- 2 Supra, pp. 73-78. Where there resentatives of the vendee ; and, in is a covenant for seizin, there can be, such case, the latter, who are the as to this question, no difficulty by proper defendants in an action for reason of its want of capacity for the purchase-money, are also the being taken advantage of by an as- parties in whom alone the right of signee. The question of detention action on the covenant has vested, of the purchase-money can never and are therefore capable of setting arise between a vendor and the heir up the breach of this covenant as a or the assignee of a vendee. It may defence. arise between the vendor or his rep- 64^6 THE purchaser's right growing from the desire to prevent circuity of action, and the injustice that may often arise by reason of the delay, expense, and risk of the vendor's insolvency, to which the purchaser may be put by turning him round to his action on the covenant. On the other, the temptation offered to purchasers, when pressed for the contract price, to ferret out defects in the title of their vendor, and clothe them with every imposing circumstance, is such as may cause a pre- ponderance in favor of the rule that unless there has been a bond fide eviction, actual or constructive, the parties must be respectively left to pursue the remedies which they have originally provided for themselves. It is hoped that these introductory remarks may to some extent help to simplify the arrangement of the numerous cases upon this branch of law, which seems a perplexed and intricate one, rather from the fact that the grounds of the decisions have not always been referred to the same principles, than from any difficulty as to the principles themselves. It is proposed to consider, in the first place, the rights of the purchaser as they have been considered in courts of law, and secondly, in courts of equity. The earliest prominent case in this country, as to the purchaser's right in a court of law to detain the pur- chase money of real estate by reason of a defect of title, seems to have been Frisbee v. Hoffnagle,-^ decided in New York in 1814<, where in an action on two notes given for the purchase-money of land sold with a covenant of war- ranty, the defendant proved that the land had subsequently been sold under a judgment against the plaintiff, and a sheriff"'s deed made to the purchaser, and although it was also in evidence that the defendant had not been evicted or 1 11 Johns. 50. TO DETAIN PURCHASE-MONEY, ETC. 647 disturbed in his possession, the Court ordered a nonsuit. On a motion for a new trial, the case was submitted with- out argument, and in refusing the new trial, it was held, per curiam, " The consideration for the note has entirely failed, for the defendant has no title, it having been extin- guished by the sale under the judgment. Here is a total, not a partial, failure of consideration ; for although the de- fendant has not yet been evicted by the purchaser under the sheriff's sale, he is liable to be so, and will be responsible for the mesne profits.^ Tq allow a recovery in this case would lead to a circuity of action ; for the defendant, on this failure of title, would be entitled immediately to recover back the money. The motion to set aside the nonsuit must, therefore, be denied." The objection to the soundness of this decision (which has since been repeatedly overruled),^ appears upon principle to 1 Citing Morgan v. Richardson, 1 Campbell, 40, note ; Tye v. Gwynne, 2 Id. 346 ; Barber v. Backus, Peake's Cases, 61 ; Phoenix Ins, Co. v. Pi- quet, 7 Johns. 383. These cases can hardly be said to be authority for the length to which this decision goes. The case of Morgan v. Richardson is merely to the point that a total fail- ure of consideration as to the quality of goods, for which a bill of exchange had been given, was a good defence to an action on that bill, though a partial failure would not be. Tye v. Gwynne was the case in which Lord EUenborough, took the distinction between want of consideration and failure of consideration, and recog- nized that taken by Denison, J., in Robinson v. Bland, 2 Burrow, 1082, between an action brought on the contract, and on the security given for the price. In Barber v. Backus, Lord Kenyon held that where there was no consideration for part of a bill, the jury might apportion and find damages for part (also accord. Ledger v. Ewer, Peake, 216.) Ex- cept Robinson v. Bland, these were all Nisi Prius decisions. In PhoBnix Ins. Co. V. Piquet, the note on which suit was brought was given for a pre- mium of insurance, and it was ad- mitted that the plaintiffs were not entitled to as much premium as the note was given for. The difference was therefore deducted from the amount of the verdict. Since this comment on these oases was first written, the same exposition of them has been substantially given in the case of Lamerson v. Marvin, 8 Barb. S. C. (N. Y.) 9, infra. 2 Vibbard v. Johnson, 19 Johns. 77; Lattin v. Vail, 17 Wendell, (N. Y.) 188; Whitney v. Lewis, 21 Id. 131; Tallmadge v. Wallis, 25 Id. 116 ; Batterman v. Pierce, 3 Hill, 648 THE PURCHASER S RIGHT be, that as the only covenant was that of warranty, there had been no eviction whatever, either actual or constructive, so <\s to give to the purchaser a right at that time to call upon the vendor to perform the covenant, and so prevent circuity of action. Hence the consideration was not touched. In Greenleaf v. Cook,-' decided in the Supreme Court of the United States, in 1817, the defence of a failure of title, to a note given for the purchase-money of land, seems to have been excluded with entire propriety, as nothing in the report of the case shows that the deed contained any cove- nants whatever, and, from what was said in the decision as to the alleged defectiveness of the deed,^ it is possible that the absence of covenants was referred to. There M^as a prior mortgage on the premises, under which a decree of foreclosure had been pronounced, but the possession had (N. Y.) 171 ; 2 Kent's Com. 472; Lamerson v. Marvin, 8 Barb. S. C. (N. Y.) 14. " Few cases," said Sharkey, Cli. J., in Hoy v. Taliferro, 8 Smedes & Marsh. (Miss.) 739, " have been more frequently referred to, and but few have been less regarded than the case of Frisbee v. Hoffnagle.'' The case was, however, approvingly re- ferred to in James v. The Lawrence- burg Insurance Co. 6 Blackford, (Ind.) 525 (though the decision it- self was based upon another ground), and in Cook v. Mix, 11 Connect. 438, which decided that the fact of the deed to the defendant being void, by reason of being made by administra- tors who had no power of sale, was a sufficient defence without more (see accord, in equity, Woods v. North, 6 Humphreys, (Tenn.) 309 ; cited and commented on, infra), though the decision seems to have been directed principally to controverting the doc- trine in Lloyd v. Jewell, supra, p. 641, that the covenants themselves were a sufficient consideration. Tarpley V. Poage's Adm'rs. 2 Texas, 139, was decided upon the authority of the Pennsylvania and early South Caro- lina decisions, {infra,') which must be regarded as local in their application, though the decision itself was per- fectly correct upon the facts, and subsequent cases in this State have adhered to the course of decision which is elsewhere observed ; Brock V. Southwick, 10 Texas, 65 ; Cooper V. Singleton, 19 Id. 260. 1 2 Wheaton, 13. 2 " It has also been said that the deed is defective. If it be, the de- fendant may require a proper deed ; and it is not impossible but there may be circumstances which would in- duce a court of equity to enjoin the judgment until a proper deed be made. But the objection to the deed cannot be examined in this action." TO DETAIN PURCHASE-MONEY, ETC. 64<9 never been disturbed. " It has been argued," said Mr. Chief Justice Marshall, who delivered the opinion of the Court, " that there is a failure of consideration which con- stitutes a good defence in this action. Without deciding whether, after receiving a deed, the defendant could avail himself of even a total failure of consideration, the Court is of opinion, that to make it a good defence in any case, the failure must be total. The prior mortgage of the premises, and the decree of foreclosure, do not produce a total failure of consideration. The equity of redemption may be worth something, the Court cannot say how much ; nor is the in- quiry a proper one in a court of law, in an action on the note. If the defendant be entitled to any relief, it is not in this action." It may be observed of this case, which, upon the facts presented, was most correctly decided,^ that at that time the law was far from being settled as to the right of the pur- chaser thus to defend himself,^ and the true basis of the decision seems to rest not so much upon any distinction between a total and a partial failure of consideration, as on the ground that there being no covenants in the deed^ the purchaser had already obtained what, from the absence- of these covenants, a court of law must presume he bar"- gained for, viz., the mere transfer of the vendor's title, such, as it was, without any recourse to him in the event of its turning out defective, and hence the question of consider- ation was not touched — nor if the deed had contained 1 The recent decision in Vermont sale were absolute, and there was no of Hussams v. Dampier, 2 Williams, subsequent agreement on the part of 32, was to the same effect. the vendor, to take back the article ; 2 Thus, ten years after the decis- but very recently, in the case of ion in Greenleaf v. Cook, it was held Withers v. Green, 9 Howard, (U. S.) by the same tribunal, in Thornton w. 213, and Van Buren v. Digges, 1.1 Wynn,12 Wheaton,183, thatabreach Id. 461, this doctrine has been much of warranty of a chattel was no de- modified, if not overruled. fence to payment of its price if the 55 650 THE purchaser's RIGHT a covenant of warranty or for quiet enjoyment, could the result have been diSerent, for, as there had been no eviction, the purchaser would not have been entitled at that time to damages. ■* Frisbee v. Hoffhagle was followed in New York by Lat- 1 la Soudder v. Andrews, 2 McLean, 464, the facts were very similar to those presented in Green- leaf V. Cook, but the decision was the other way. In an action brought on a note given for the purchase-money of land in Wisconsin, the defendant pleaded that the land was part of the public domain, and had never been parted with by the United States. To this there was a demurrer. There was no evidence whatever of any covenants in the deed, but this seems to have been treated by the Court as being of no consequence. " Nor is it perceived," said M'Lean, J., "in such a case, that it can be important whether the instrument given by the plaintiff to the defendant as evidence of title, was a deed of conveyance, or an agreement to convey. If the plaintiff had no title or claim to the land, which is asserted by the plea and admitted by the demurrer, the defendant has a right to set up that fact as a defence for an action on the note. Why should he be driven to his action on the warranty, if a warranty deed were given, of which, however, there is no evidence ? ... If the de- fendant had entered into the posses- sion of the premises and enjoyed them, it would be clear that this defence could not be set up, for then there would only be a partial failure of consid- eration, which would not be a mat- ter of defence.'' The demurrer was therefore overruled. In this case, the Court, after reviewing the authori- ties, held that their weight inclined in favor of the position, that a partial failure of consideration could not be set up as a defence. The cases cited, however, to prove this, were by no means very modern ones, relatively to this doctrine. Morgan v. Kichard- son, 1 Campbell, 40 ; Solomon v. Tur- ner, 1 Starkie, 51; Tye v. Gwynne, 2 Campbell, 346 ; Basten v. Butter, 7 East, 479 ; Obbard v. Betham,Mood. & Malk. 483 ; Gray v. Cox, 4 Barn. & Cress. 108 ; Laing v. Fidgeon, 6 Taunton, 108 ; Washburn ,;. Picot, 3 Devereux, (N. Car.) 390; but see the later cases, cited supra, p. 637, note. It may be further observed of this case, that in a court of law, the pre- sumption, from the absence of cov- enants, must be that the purchaser was to run the risk of the title, and (as in the case of Greenleaf v. Cook,) the question of consideration could not afterwards arise in an action for the purchase-money. The expres- sion, too, that it was immaterial whether the instrument was a deed of conveyance or an agreement to convey, seems to be somewhat at va- riance with the distinction between the respective rights of the parties while the contract is still executory, and after it is executed, which has already been somewhat fully referred to as a well-settled one ; see supra, p. 611. TO DETAIN PURCHASE-MONEY, ETC. 651 tin V. Vail/ and substantially overruled by it. The defend- ant, on being sued for the purchase-money of real estate which had been conveyed with a general covenant against incumbrances, pleaded the existence of a prior mortgage, which he averred was a lien upon the property. On demur- rer, Bronson, J., who delivered the opinion of the Court, held that although the covenant was broken as soon as made, yet, as the defendant had not paid oft" the mortgage, or averred any special damage by reason of its existence, he would be at that time entitled to no more than nominal damages,^ and hence the defence set up by the plea, could not be made available to hijn. So in the subsequent case of Whitney v. Lewis,^ in an action of debt brought on a bond^ given for the purchase- money of real estate, which had been conveyed to the defendants with a covenant to warrant and defend them in its quiet and peaceable enjoyment, they pleaded that tlie plaintiff' was not seized in fee, but that another was the real owner, and was then claiming adversely.® On demurrer, however, judgment was given for the plaintiff', principally 1 17 Wendell, (N. Y.) 188. (N. Y.) 506. The only remedy was 2 See swpra, pp. 127, 134. inequity. In Pennsylvania, the equi- 3 21 Wendell, (N. Y.) 131. table principles administered in that ^ It is hardly necessary to mention. State, through the medium of com- that by statute in New York, as in mon law forms, established a differ- some other of our States, the consid- ent rule ; Swift v. Hawkins, 1 Dallas, eration of a bond can, under some (Pa.) 17; Stubbs v. King, 14 Serg. restrictions as to pleading, be inquired & Kawle, (Pa.) 208. into to the same extent as the consid- 5 The plea also averred that the eration of a simple contract ; 2 Kev. plaintiff knew of his want of title. Stats. 406, § 77. At common law, and concluded "and so the defend- such a defence was, of course, inad- ants say they have been defrauded." missible, the obligor not being enti- There were, however, no distinct tied to avoid a specialty, even on the allegations of any false representa- ground of fraudulent representations; tions, and the conclusion of the plea Edwards v. Brown, 1 Tyrwhitt, 196 ; did not, as the Court held, follow from Wyche v. Macklin, 2 Randolph, ( Va.) the facts alleged in it. 426 : Franchot v. Leach, 5 Cowen, 652 THE PURCHASERS RIGHT on the ground that the plea, being- in bar, did not go to the whole consideration.^ Soon after, came the case of Tallmadge v. Wallis,^ where in an action of debt on a bond, the defendant pleaded that it was executed in consideration of the conveyance by the plaintiff" to himself of certain lots in the city of New York, by a deed, in which the former covenanted that he was law- fully seized of an absolute and indefeasible estate of inherit- 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 consid- eration had wholly failed. To this the plaintiff" demurred. There was also a plea of non est factum, upon which the issue was found for the pkintiff", and damages assessed to depend upon the issue of law. The demurrer was sus- tained by the Court below, whose judgment was affirmed 1 Frisbee v. Hoffnagle was in this case cited and relied on for the defendants, but its authority was re- jected by Bronson, J., who, in deUv- ering the opinion of the Court, based his decision on several grounds. In the first place, it was said that " the consideration on both sides was exe- cuted — not executory. Nothing was to be done in future. Although a right of action might afterwards ac- crue to both parties — to the one on the covenant for quiet enjoyment, and to the other on the bond — yet no subsequent event could make it strictly accurate to say that an exe- cuted consideration had failed; . . . and in this action on their obli- gation, I do not see how a breach (if it had been alleged) of the plain- tiff's covenant could be a defence. It would bo allowing a set-oif of one action ajjainst another." It was fur- ther said, that the plea furnished no ground for saying that the considera- tion of the bond had failed ; the plea did not go to the niknle consideration as it alleged that the plaintiff had not a fee, whereas it might be that he had a life estate, or a term for years. It was not alleged that there had been an eviction from the land, or, indeed, that anything whatever had happened since the contract was made. This made the case fall short, it was said, of Frisbee u. Hoffnagle, where the title had been defeated by a sale under a judgment against the vendor, though even then it was thought that that case had gone too far. The third ground of the decision was, like that taken in Lloyd v. Jew- ell {supra, p. 641, note), that the cov- enant was a sufficient consideration for the purchase-money. 2 25 Wendell, 113. TO DETAIN PURCHASE-MONEY, ETC. 653 by the Supreme Court ;^ and on the case being removed to the Court of Errors, Chancellor Walworth, who delivered the opinion of the majority of that Court, held that the plea was bad upon two grounds. In the first place, if it was to be considered as going to the whole consideration, it was bad, as not dverring that the grantor had no estate or interest whatever ; as the consideration had not wholly failed if the defendant had acquired any estate or interest under the deed, however small ; and in the second place, if intended as a plea of a partial failure of consideration, it was bad, because such a defence could not be pleaded in bar,^ but should, under the Revised Statutes, be embodied in a notice, and given in evidence under the general issue.^ 1 The report of the case in 25 Wendell, says, " The Supreme Court, on writ of error, affirmed the judg- ment, and in deciding the case ad- verted to the opinion delivered in Whitney v. Lewis." 2 S. P. McCuUough V. Cox, 6 Barb. S. C. (N.Y.)391. ^ " If there is a total want of consid- eration,'' said Chancellor Walworth, " the defendant may either plead that defence in bar of the action, or give it in evidence under a notice, upon a plea denying the execution of the instrument declared on. A partial failure of consideration, however, can- not be pleaded in bar under these statutory provisions, for the presump- tion of a sufficient consideration can only be rebutted in the same manner and to the same extent as if the in- strument declared on was not sealed. In an action upon a promissory note, or other unsealed instrument, a par- tial failure of consideration would not be a full defence, but could only be given in evidence in reduction of the 65* amount to be recovered. Burton v. Stewart, 3 Wendell, 326 ; Reab v. M'AlIister, 8 Id. 109. In the present case, the consideration of this bond had not wholly failed, if the defend- ant acquired any estate or interest whatever in the premises, or in any part thereof, or any benefit by virtue of the conveyance. The defendant, therefore, instead of pleading in bar of the action, should have pleaded the general issue of non est factum, and given notice with said plea of the partial failure of title, for the purpose of reducing the amount to be recov- ered upon the bond." The following general remarks were then made upon the subject now under consideration : — " The question whether a total failure of title, upon a conveyance with war- ranty, is a good defence to a suit up- on the notes given for the purchase- money, is one upon which Judges have entertained different opinions. Where there is a covenant of war- ranty merely, which covenant is not 65 1 THE PURCHASER S RIGHT If it be objected to this decision that the plea followed tlie usual form of a declaration on a covenant for seizin, broken until there has been an evic- tion, or something equivalent to an eviction, there appears to be great difficulty in permitting the purchaser to show a total or a partial failure of title, either in bar of the suit or to reduce the amount of the recovery. It is a well-known fact that land is frequently conveyed with general warranty, which is warranty against eviction only, when both parties to the sale perfectly understand that the title is doubtful, or that there is some outstanding contingent interest, whicli may, perhaps, at a future pe- riod be the means of evicting the purchaser ; and to protect the pur- chaser and enable him to recover against the vendor in case of eviction, the covenant of warranty is inserted in the deed. And yet in many cases of this kind, the purchaser continues to hold and enjoy the land until all question as to the title is removed, by lapse of time or otherwise. Now, In such cases, if the purchaser were permitted to set up an outstanding title in the original patentees or their heirs, or in some one who had re- ceived a title directly or indirectly from them, it might be very difficult, if not impossible, for the vendor to trace a perfect claim of title from the original patentee to himself, although he was in fact the legal owner of the premises at the time of the sale. Permitting the purchaser to set up such a defence before eviction, would, as a general rule, be making a new contract for the parties, which they never intended to make for them- selves. But where there has been an actual eviction of the purchaser within six years after the conveyance, and by a title or claim which entitles the party recovering the property to mesne profits as against such vendee from the time of his purchase, so that the amount of damages which he would be entitled to recover upon the covenant of warranty thus broken, would be to the full extent of the purchase-money of the premises, with the interest thereon, there is a virtual failure of the whole consideration of the note or bond given for the pur- chase money. In such a case, I can see no good reason why the defend- ant, to avoid circuity of action, should not be permitted to plead such total failure of consideration as an absolute bar to the suit, in the same manner as if the note or bond had been given upon the sale of a horse warranted sound, which turned out to be unsound and entirely valueless. . In the case now under con- sideration, the vendor having cove- nanted that he was seized of the premises absolutely in fee, if the plea had shown that at the time of the conveyance, he had no estate or in- terest whatever in the premises, or in any part thereof, it would have gone to the whole consideration, and in my opinion would have been a valid bar to the suit upon the bond ; and the Court, in the absence of any allega- tion in the pleadings to that effect, would not presume that the purchaser ever was in possession of land in which he had acquired no right what- ever under the conveyance. But the plea is clearly defective in rot show- TO DETAIN PURCHASE-MONEY, ETC. 6b5 and that the breach of that covenant being admitted by the demurrer, the defendant had a right to set off" the damages against the contract price, it may be answered, that in the first place it seems by no means definitely settled that the damages for a breach of the covenant for seizin are, as a matter of c6urse, necessarily measured by the consideration- money. Such a result, where the purchaser has paid noth- ing to extinguish the paramount title, and may be still in possession, can, in many cases, only occur where, from the evidence, the failure of title is so complete, and the loss so morally certain to happen, that a Court might feel justified in directing the jury to assess the damages by the consider- ation money ; ^ and, however this may be, it seems well set- tled, that where the failure is partial, although the purchaser may recover damages pro tanto, yet he cannot make use of the action on the covenant to rescind the entire contract.^ Hence such a defence is bad, if set up in a plea which is intended to be in bar of the action. In the second place, the technical rule which allows the breach of a covenant for seizin to be assigned by negativing its words generally, cannot, it is apprehended, for obvious reasons, apply to cases where the breach is to be used as a defence in another action.^ ing an absolute failure of the title, as i See supra, p. 73. the bond was presumptive evidence 2 See supra, p. 92. of a good consideration for the whole 3 Jt ig^ in general, said that a plea amount of the purchase-money for of set-off should be as particular as a which it was given. The onus, there- declaration- in another action, and fore, of showing that the considera- where notice of special matter is tion has wholly failed, lies upon the given under a general issue plea, as defendant. He might probably have a substitute for a regular plea of set- reduced the amount of the recovery off, Courts are, in general, very par- by proving, uuder a notice, a partial ticular in requiring that it shall be failure of title, but having neglected full and precise. Although, there- to do so, he must be left to his remedy fore, a technical rule allows a breach by a cross suit upon the covenants in of a covenant for seizin to be assigned his deed." by merely negativing its words, and 656 THE purchaser's right In the recent case of Lamerson v. Marvin,^ the defend- ant, being sued on his bond given for purchase-money, proved that the premises had been, before the execution of his deed, which contained general covenants of warranty and for quiet enjoyment, sold under a foreclosure of a mortgage given by a prior grantor, though the possession still re- mained with the defendant. The right of the defendant to recoup as for a partial failure of consideration, or for dam- ages for fraud, or breach of the covenants in the deed, was not, the Court observed, claimed in the answer, and was expressly disclaimed on the trial ; and the defence rested upon the ground that the facts established a flat bar to the action, the case of Frisbee v. Hoffnagle (which, it was con- tended, had never been directly overruled in New York,) being relied on in support of this position ; but the Court, after looking at all the authorities in that State, was of opinion that a failure of consideration had not been shown. If Frisbee v. Hoffnagle had never been questioned or doubted, the Court would feel bound to follow it without question. But it had not been regarded as good authority, or at least as unquestionable, either in their own courts or those of other States. The defendant received the posses- sion from his grantor, and still retained it, and until he had been evicted or compelled in some way to recognize the title of the mortgagee, he should not be permitted to draw in question the title of his grantor. with no averment of special damage the more so, because such a defence (as is required in suing on the other is not admissible, in general, under covenants for title) it is apprehended the statutes of set-off, but is admitted that it would be held, as was substan- either to show how much the contract tially the case in Tallmadge v. Wallis, price should be reduced by reason of that the plea should set forth particu- the non-compliance with the cove- larly the breach of the covenant and nant, as in Mondel v. Steel, 8 Mees. the damage which had been sustained & Welsby, 858, or, as in New York, (and this was the decision in Furness by way of recoupment. V. Williams, 11 Illinois, 238) ; and 18 Barbour's S. C. (N. Y.) U. TO DETAIN PURCHASE-MONEY, ETC. 657 From the foregoing cases, it would seem to be settled in New York, that unless there has been an eviction, actual or constructive, of the whole subject of the contract, no de- fence to payment of the contract price can be set up in a plea in bar,^ and that such a defence, when allowed at all, 1 So in the case of Boone v. Eyre, plaintiff had Ucensed the defendant 1 H. Blaclis. 273, note, the plaintiff conveyed to the defendant the equity of redemption of a plantation in the West Indies, together with the stock of negroes thereon, in consideration of £500, and an annuity of £lGO, and covenanted that he had a good title to the plantation, was lawfully pos- sessed of the negroes, and that the defendant should quietly enjoy ; and the defendant covenanted that the plaintiff well and truly performing all and everything therein contained on his part to be performed, he, the de- fendant, would pay the annuity. The plaintiff having declared in covenant for its non-payment, the defendant pleaded that the plaintiff was not, at the time of making the deed, legally possessed of the negroes, and so had not a good title to convey, and on demurrer. Lord Mansfield said, " The distinction is very clear, where mutual covenants go to the whole of the con- sideration on both sides, they are mu- tual conditions, the one precedent to the other. But where they go only to a part, where a breach may be paid for in damages, there the de- fendant has a remedy on his cove- nant, and shall not plead it as a con- dition precedent (see also M'CuUough V. Cox, 6 Barb. S. C. (N. Y.) 390). If this plea were to be allowed, any one negro not being the property of the plaintiff, would bar the action.'' So, in the recent case of Cutler v. Bower, 11 Queen's Bench, 973, the to use his patent during a term, pay- ing a stated royalty. By a subsequent deed, reciting the former and a sub- sequent contract of the defendant with the plaintiff, for the purchase of half the patent subject to the former deed, but with the benefit to the de- fendant of half the royalty, the plain- tiff, in consideration of £2,200 to be paid in instalments, assigned the pat- ent to a trustee for the purpose of carrying out this arrangement, and covenanted that, notwithstanding any act done by him, the patent was valid, and should be held and enforced by •the trustee without lawful let, &c., by the plaintiff, or any claiming under him, or by his act or default. To a declaration in covenant for non-pay- ment of the instalments, the defend- ant pleaded that the plaintiff was not the first inventor, by reason whereof the patent, before the supposed breach of covenant, was void, but the Court said, " The defence proposed to be set up by the pleas is failure of consider- ation : that the patent is invalid, and that he is not bound by his covenant to pay the money, which appears by the deed to be the purchase-money for a patent which, it is said, turns out to be worthless. But it appears to us that there are two decisive ob- jections to this defence. The first is, that, there not having been any evic- tion, the consideration does not wholly fail ; for the defendant was at all events bound by the first indenture 658 THE purchaser's right under such circumstances, must be by way of recoupment, or in mitigation of damages, the circumstances themselves being contained in a notice of special matter, and given under a general issue plea.^ What will be sufficient to enti- tle the defendant thus to recoup his damages, will of course depend upon various circumstances. Where the only cove- nants are for quiet enjoyment or of warranty, nothing short of an eviction, actual or constructive, will enable him to do so.^ If the eviction be from a specific part of the subject of the purchase, it is apprehended that the damages pro tanto can be successfully set off" or recouped against the contract price. And where the eviction is a constructive one, and the paramount title has been purchased by the de- fendant, the same rules which are enforced as to limiting a plaintiff's recovery to the amount thus paid by him,^ will, it is conceived, be equally applied where the position of the purchaser is that of a defendant. The general principle established by this class of cases in New York, that the mere absence of title will not, of itself, to pay the monthly royalty to the the other for a breach of their respeo- plaintiff, whether the patent wero tive covenants. There is no plea of valid or not, as he would be estopped fraud or eviction ; and it appears to in an action upon that deed from de- us that, upon this deed and these nying the validity of the patent ; and pleadings, the invalidity of the patent, by the deed upon which the action is as stated in the pleas, affords no brought, he becomes entitled to half ground of defence at law, to an action that royalty. And, in the next place, upon the covenant in question, which the proposed defence could only be may be considered in effect as a mere available in case the covenant upon covenant in gross for the payment of which the action was brought was a money." dependent covenant, to be performed l And where no notice is given, only if some condition is observed by nothing short of a total failure of the other party ; but in this case the consideration is admissible under the covenants of the plaintiff relating to general issue ; Tibbets v. Ayer, Hill the patent, and that of the defendant & Denio, (N. Y.) 176. for payment of the purchase-money, 2 Lamerson v. Marvin, 8 Barb. S. are wholly independent of each other; C. (N. Y.) 11. and each party may recover against 3 See supra, pp. 138, 280, &c. TO DETAIN PURCHASE-MONEY, ETC. 659 constitute a valid defence to the payment of securities given for the purchase-money, has been very generally recognized throughout the Union. Thus where the defendant ofiered to prove that the premises which had been conveyed to him with covenants for seizin and of warranty, were levied upon under judgments previously obtained against his grantor, it was held by the Supreme Court of Maine that the evidence was rightly excluded.-* So, where in the same State the land, which had been conveyed with " the usual covenants of warranty," was subject to a mortgage, which the mort- gagee had announced by advertisement his intention of fore- closing, 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 mort- gagee, or the defendant been dispossessed of the premises.^ 1 Wentwortli v. Goodwin, 21 Maine, 150. "The attachment and subse- quent levies on the land conveyed," said Shepley, J., who delivered the opinion of the Court, " were incum- brances upon the title which was con- veyed to the grantee, subject to them. The grantee had acquired the legal right to pay off these incumbrances, and by so doing, his title would have become perfect. If the effect may have been, that through neglect to re- deem, 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 at the time of conveyance. It did not appear from the testimony pro- posed to be introduced, whether the lands were, or were not, appraised at their full value. A legal presump- tion does not arise, that the appraisal was for the full value, for the statute contemplates a still subsisting value in the right to redeem, ■which may be the subject of attachment and sale. Nor did the proposed testimony show, whether the grantee had, or had not, received the rents and profits of the land from the time of conveyance to the periods of levy. And if any were received, he was entitled to re- tain them ; for no other person could call upon him to account for them. The burden of proof was upon him. The ruling of the presiding Judge was therefore correct, ' That the facts aforesaid, offered to be proved by the defendant, were insufficient to show a total failure of the considera- tion of said note.' " 2 Jenness v. Parker, 24 Maine, 289. The case seems not to have been de- cided so much upon this ground, as on the ground that the failure of con- sideration was not total, there being no evidence that the defendant had not received the rents and profits of the land. " If anything valuable does pass to the grantee," said the 660 THE PURCHASER S RIGHT So, where in a case in Indiana, the defendant pleaded an outstanding right of dower, it was held that unless he had extinguished this right, he could not avail himself of it as a defence, and, even if he had, it would only be a defence pro tanto} So, in two late cases in the same State, where the 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 incumbran- ces existed upon the property, which were still outstanding, the pleas were held bad on general demurrer.^ Decisions Court, " short of an absolute interest, in conformity to tlie terms of the dee'd, it becomes a case of unliquidated damages, the remedy for which should be sought by an action of covenant broken." This strictness, however, is not in accordance with the more modern decisions, and in a subse- quent case (Herbert v. Ford, 29 Maine, 546), where the consideration of a note was the transfer of the practice and good- will of a physician, the Supreme Court of Maine held that the plaintiff was responsible in damages if there had been a breach of his contract, but it did not appear from the current of authorities that the defendant was to be limited to that remedy alone, and it was said that the tendency of decisions had been to allow a broader latitude of defence than was permitted by the common law to bills of exchange and promissory notes, where the justice of the case required it, and a circuity of action could be avoided. 1 Whisler v. Hicks, 5 Blackford, (Ind.) 100 ; see also to the same effect Smith v. Ackerman, Id. 541 ; Buell V. Tate, 7 Id. 55 ; Pomeroy v. Burnett, 8 Id. 142 ; Hooker v. Fol- som, 4 Ind. 90 ; Major v. Brush, 7 Id. 232. In James y. The Lawrensburg Insurance Co. 3 Id. 525, the case of Frisbee . South- wick, 1 Texas, 65 ; Connor v. Eddy,, 10 Missouri, 72 ; Wheat v. Dotson, 7 Arkansas, 699 ; Eobards v. Cooper, 16 Id. 290, (where the text was cit- ed) ; Key V. Henson, 17 Id. 254;, Martin !>. Foreman, 18 Id. 249 ; Sal- mon u. Hoffman, 2 California, 138.. 2 8 Smedes & Marsh. 727. 662 THE purchaser's right a strong case as to enforcing the rights of the vendor. The defendants, who had purchased land with covenants of gen- eral warranty, proved a judgment recovered against their vendor in the Federal Court shortly before the execution of the deed, and a levy and sale under it by the marshal of the district about ten years after, when the property was pur- chased by a stranger, and the defendants then voluntarily abandoned the possession. It was, however, held that these facts did not constitute a defence to the payment of a note given for the contract price. The covenants of warranty had not, the Court said, been broken. There had been no eviction.^ It had been insisted that the title was devested by the marshal's sale as completely as it could have been by eviction, but the Court had not been furnished with any au- thority to show that a sale either by a marshal or sheriff was equivalent to eviction. Manifestly, it was not so, since the original vendor might still 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. The voluntary abandonment in this instance gave, it was said, no strength whatever to the defence. A court of law, though the proper tribunal for the trial of titles to land, would not try such titles collaterally. The proceedings must be direct, otherwise the title cannot be questioned. Where there had been an eviction, the defence of failure of consideration might be let in, because the supe- riority of the outstanding title would then be established by a judicial determination. The inquiry would then be nar- rowed down to a single matter of fact, susceptible of being proved by record evidence.^ ' See passim, supra, p. 245 et seq. perhaps quite two years before the 2 " There was not," said Sharkey, marshal's sale. They were not ac- Ch. J., " a total failure, for another countable for the rents and profits reason ; the defendants held posses- during that time to any one. This sion under their deed for nearly or brings the case completely within the TO DETAIN PURCHASE-MONEY, ETC. 663 In the subsequent case in the same State of Duncan v. Lane,^ the defence relied on was that the vendor's title being derived under a sale made by himself as administrator, was invalid, while in Heath v. Newman,^ the premises had been sold under a judgment against the vendor, but the defend- ant was still in possession. In both these cases, the cov- enants being of general warranty, the Court held that there having been no eviction, the defence could not be set up. Dennis v. Heath,^ was somewhat similar in its circum- stances to Hoy V. Taliaferro. The land, which had been conveyed to the defendant with " full covenants of war- ranty," was levied upon and sold under a judgment ob- reasoning of the Chancellor, in Tall- madge v. Wallis, 25 Wendell, (N. Y.) 197,(st(pro,p. 652). On this ground^ too, it falls within the decision in Greenleaf v. Cook, 2 Wheaton, 13, {supra, p. 648), where it was said the failure was not total, because the equity of redemption might be worth something. The possession of the land for two years must have been worth something. This fact, how- ever, in the present case, is not very material when the case is considered under the general warranty ; the absence of an eviction is conclusive upon the defendants." It is, how- ever, apprehended that the receipt of the rents and profits, and the absence of accountability for them to the paramount owner, would not have defeated the right of the covenantees to recover by suing upon their cove- nants, but would merely have pre- vented the recovery of interest on the consideration-money. See supra, p. 93. It was further said, as in Duncan v. Lane, 8 Smedes & Marsh. 753, that the defendants could not avail themselves of the statutory covenants implied by the words " grant, bargain and sell," as the ex- press covenants of warranty did away the effect of all implied cove- nants. This, however, which is cor- rect law as to the covenants arising from the words of leasing, never was applied, at common law, to the case of a freehold. See supra, p. 468. 1 8 Smedes & Marsh. (Miss.) 744. 2 11 Id. 201. 3 11 Id. 206. These cases were also cited and approved in Feemster v. May, 13 Id. 277, where it was con- sidered to be settled that " a ven- dee who has been put in posses- sion of land and who has accepted a deed with covenants of general warranty of title, cannot defend a suit brought for purchase-money, up- on the ground of failure of consid- eration from defect of title, until he is actually evicted." The case itself was, however, one of an executory contract. 664) THE purchaser's right tained against the plaintiff, its vendor, and purchased by one who, having previously been the tenant of the vendor, had, since the sale by him, attorned to the father of the vendee, supposed by him to be the purchaser, and after the purchase at the sheriff's sale, held the land as his own. In an action brought upon a note given for the purchase-money of the land, the Court before whom the cause was tried in- structed the jury that these facts constituted an eviction so as to entitle the defendant to a verdict, but the Supreme Court reversed the judgment, holding that there had been no eviction. " There has been no action of ejectment, no judgment, no turning out of possession, nothing but a voluntary surrender of possession, and yielding of the right without an effort to maintain it. . , If at the time of the sale there be a paramount title and an adverse possession under it, the holding out of the purchaser is equivalent to eviction. But this case is not within this principle. The record shows that the plaintiff sold to the defendant and put him in possession under a deed with covenants of gen- eral warranty, and that the defendant voluntarily surren- dered to another, likewise claiming title under the vendor by a subsequent purchase under a prior incumbrance. To hold that this satisfied the requirements of the law would, in this, and in many other instances, cause the trial of titles to land in an action of debt or assumpsit. We are not disposed thus to change the established rules of law." ^ It may be observed of this case, and of Hoy v. Taliaferro, 1 In Dennis u. Heath, the note was no direct proof of fraud or con- sued on was one of four, each for nivance in Dennis v. Heath, but the $1500. The whole subject of the plaintiiF's counsel urged that these purchase seems to have been levied circumstances savored strongly of it, upon, and was sold for $325 to one and the Court in delivering their Perkins, who was connected by mar- opinion alluded to the price and riage with the defendant. There the connection of the parties. TO DETAIN PURCHASE-MONEY, ETC. 665 that the objection to trying the title to land in an action for its contract price, must equally apply in every case where the paramount title had not been established by a judgment of a court of record. Yet to give to such a judgment a conclusive effect would be, where the vendor had not been vouched or notified, contrary to well-established principle,-' and it is apprehended that in every such case the purchaser would be bound to make out the adverse title under which he had been evicted, or to which he had yielded, with as much particularity as if suing on the covenants ; and there seems no greater objection to the question of title being brought before the Court in the one form of action rather than the other. In the recent case, moreover, of Glenn v. Thistle,^ which was an action on a promissory note for a balance of pur- chase money of land sold to the defendant's testator with covenants of warranty, the defendant proved that soon after the purchase it was discovered that the vendor had no title whatever to the land, except to a very small extent by pre- emption right, but that the land belonged to the United States, and the defendant, after a heavy loss had been sus- tained by the transaction, had succeeded in purchasing part of the land again from the government at the public sales, part from purchasers from the government, and pre-emption rights as to the remainder. A verdict having been found for the defendant, it was urged, on writ of error, on behalf of the plaintiff, that as the vendor had a title by pre-emp- tion right to part of the land, the failure of consideration had not been total, and hence that the defence was inadmis- sible at law, and further, that there had been no eviction. The Court held, however, that apart from the fact that the act of Congress expressly invalidated any transfer of a pre- 1 See supra, p. 239 et seq. 2 i Cushman, (Miss.) 42. 56* 666 THE PURCHASER S RIGHT emption right before the issuing of a patent,^ there was evi- dence in the case sufficient to justify the belief that the parties had on discovering the defect, considered the con- tract as rescinded,^ and that, as to the eviction, as the government need not resort to a suit in order to establish its title, but could obtain the possession summarily, a sale of the land by the latter carried with it such a constructive possession as amounted to an eviction.^ 1 See supra, ip. 43, note. 2 The land had been orirrinally sold by Hyde to Leonard, the defendant's testator, who had paid part of the purchase-money In casb, and given his note at twelve months for the balance. The note in suit had been also indorsed by Thistle, the defend- ant, who was afterwards Leonard's executor. AVhen the defect of title was discovered, Hyde returned to Thistle (Leonard having died in the mean time) all the notes which he had not parted with, and afterwards exerted himself to procure for This- 'tle the title to as much of the land as could be bought, to furnish him with a consideration for the payments re- ceived. It is presumed that the note on which suit was brought had been ■taken by the plaintiiF after its matu- rity, as there was evidence of his hav- ing made inquiry whether any set-off existed against its payment. 3 " As the title has failed," said Sharkey, Ch. J., who delivered the opinion, " we come next to inquire whether the defence is made com- plete by eviction. The deed con- tains but a general covenant of warranty, and it has often been de- cided that there is not a total failure of consideration without eviction, or something equivalent ; Hoy v. Ta- liaferro, 8 Smedes & Marsh. 727 ; Heath v. Newman, 11 Id. 201 ; Den- nis V. Heath, Id. 206; DuvaU v. Craig, 2 'Wheaton, 45, and notes. But this is a rule which may be sub- ject to exceptions ; or, at all events, a sufficient eviction may be accom- plished by various means. Delivery of seizin by the sheriff to the creditor in satisfaction of the execution, is an eviction of the tenant, and consti- tutes a breach of the covenant of warranty ; Gore v. Brazier, 3 Mass. 523 ; Wyman v. Brigden, 4 Id. 150. And if one having a paramount title, enter and hold adversely, it is equiv- alent to eviction ; Curtis v. Deering, 3 Fairfield, (Me.) 499. And entry and legal possession taken under a mortgage, to which the estate was subject when conveyed to the tenant, constitute an eviction ; Tufts i-. Ad- ams, 8 Pickering, 547. The foregoing seem to have been regarded as cases of legal eviction without actual ouster. But this case stands upon even more favorable ground for the defence. The land belonged to the United States, which does not resort to a suit to evict the possessor ; he may be turned off in a summary way. It was not necessary that the govern- ment should resort to a suit to estab- lish title. Any one in possession of TO DETAIN PURCHASE-MONEY, ETC. 667 In an early case in Alabama,^ the Supreme Court, while approving the course of decision which suffered a partial failure of consideration of personal property to be given in evidence as a defence to the contract price, intimated a doubt whether the same principle could be applied to the sale of real estate so long as the contract remained unrescinded. In a subsequent case,^ where the premises which were the public land is either a trespasser, or holds by permission of some act of Congress. And a sale of the land by the government carries with it a constructive possession ; and such sale constitutes, therefore, a legal eviction, or certainly what is equiva- lent to it. But, further, if any one had possession, it must have been Thistle, as executor, his wife being a joint legatee of all the real estate ; and if he has entered under a parar mount title,, this is equivalent to an eviction, as an actual ouster was im- possible under the circumstances ; and such title we have said it was competent for him to acquire. But, what is perhaps no less conclusive, nothing was said as to the possession. It does not appear from the record whether Leonard ever had posses- sion. The point seems to have been overlooked." In the late case of Wailes v. Coo- per, 24 Mississippi, 232, the Court, upon examination of the various de- cisions in relation to the relief which a vendee of lands was entitled to re- ceive in that State on account of a failure or defect of title, considered the following rules to be very clearly and explicitly established : " First. Where a contract for the sale of real estate has been executed, and the vendee has received a deed with covenants of warranty and taken possession of the land, he cannot, in a case free from fraud or misrepre- sentation, avoid a judgment for the purchase-money, either at law or in equity, on account of a defect or failure of title, unless he has been evicted. " Second. If there has been fraud or misrepresentation in relation to the validity of the title or the ab- sence of incumbrance on it, a court of law or equity, if the title be de- fective or incumbered, will relieve from payment of the purchase-money without eviction, notwithstanding a party may have received a deed with covenants of general warranty, and gone into possession of the land. " Third. Where the vendee at the time of his purchase knew of the de- fect of title, or the existence of in- cumbrances on the estate, and took a deed with covenants of warranty, he cannot at law avoid a recovery, even after eviction, but must rely upon the covenants. Nor will a court of chancery in such a case, as a general rule, grant any relief; but will remit the party to his covenants, such be- ing the remedy provided for himself." See as to relief in equity, infra, p. 676, et seq. 1 Peden v. Moore, 1 Stewart & Porter, (Alab.) 81. 2 Wilson V. Jordan, 3 Stewart & Porter, (Alab.) 92. 668 THE PURCHASER S RIGHT subject of the contract had been sold under a judgment against a prior ovvner,^ but the defendant still remained in possession, it was held that evidence of these facts was pro- perly rejected. " If a failure of consideration arise from the conveyance of a land title, which is defective by reason of a paramount title in another, or other incumbrance, the inva- lidity of the title must be ascertained by an eviction, or something tantamount thereto, before the relief can be sought." So in a later case,^ where the circumstances were similar, such a defence was refused on the ground that the damages, if any, being unliquidated, could not come within the statute of set-oflf,^ and that the failure of consideration was but partial.* These decisions were followed by the case of Cullum v. 1 The Court said that they took it for granted that this incumbrance was covered by covenants for title which the vendor had given, as other- wise the defence would of course be wholly inadmissible on familiar prin- ciples. The case of Frisbee v. Hoff- nagle was commented upon in the decision in this case, and disapproved of, and the authorities in South Car- olina and Pennsylvania were also re- ferred to, and correctly placed upon the ground of local practice in the former State and the absence of a court of equity in the latter. See infra, p. 700, et seq. 2 Dunn V. White, 1 Alabama, 645. 3 The Alabama statutes of set-off, it was said, were copied exactly from the statutes of Geo. II. * The Court went so far as to say, that it did not think that, on princi- ple, the right to reduce the amount agreed to be given for the purchase of land by proof of a partial or total failure of the consideration, could be sustained when the contract had been executed by deed with war- ranty. " Not only is there a security of a higher nature, the covenant against incumbrances, but it would involve the jury in the investigation of matters either foreign to the ques- tion before them, or not proper for this investigation. Thus, if the de- fendant seeks to reduce the amount of a note given for the purchase of land, either in whole or in part, by proving that he had paid off an out- standing incumbrance, it would cer- tainly be open for the plaintiff to show that he was not bound to dis- charge the incumbrance, from some illegality of consideration, or that he had himself discharged it — such an inquiry might involve an examina- tion of intricate accounts between the plaintiff and the incumbrancer, such as a court of equity could alone with propriety adjust." TO DETAIN PURCHASE-MONEY, ETC. 669 The Branch Bank at Mobile,^ which seems to have gone to a greater length in restricting the rights of a purchaser, at law, than any other modern decision. In an action on a promissory note for a large sum, the defendant proved that it was one of several given for the purchase-money of a lot in Mobile, conveyed with a general covenant of warranty ; that after the sale the defendant discovered a mortgage exe- cuted by the vendor a short time previously ; that the latter " had concealed the existence of the mortgage (though it was on record), and did not disclose its existence to the de- fendant when he purchased the lot," and that when the latter discovered it, he offered to cancel the deed and notes ; that soon after, the vendor became insolvent and absconded, hav- ing first transferred the note in suit, with the others, to the Bank, as collateral security for antecedent debts ; that the lot was a vacant one, the defendant never having taken posses- sion of it; that the mortgagee " took the control of it, paid the taxes, and made the pavement in front of it ; " that the mortgage was then assigned to the Bank, who obtained a decree of foreclosure under which the lot was sold for less than the mortgage debt — purchased by the Bank — and held by it at the time of their bringing suit on the note.^ The Court, in delivering their opinion, did not consider it important to ascertain the period when the purchaser aban- doned the lot to the mortgagee, or whether he was author- ized so to do without suit, because it considered the sale and possession under the decree of foreclosure as equivalent to a legal eviction, and the only question therefore was whether the defence could be sustained without overstepping the boundary which divided the jurisdiction between law and 1 4 Alabama, 21. ing debt, was held to be subject, in 2 It may here be observed, that the their hands, to all the defences which, note being held by the Bank merely could have been made to it by the as collateral security for a pre-exist- original payee. 670 THE PURCHASER S RIGHT equity ; and that it was immaterial whether the defence went to the whole consideration or only a part ; and the broad proposition was laid down, that neither on the ground of fraud nor of eviction, could a purchaser defend himself at law from payment of the purchase-money.^ 1 It is due to the Court to state the reasons on which its decision was based. " Without now stopping to inquire," said Goldthwait, J., who de- livered the opinion, " whether these circumstances afford a reason for equitable interposition and relief, we think it clear that they do not make out a legal defence, even in the case where the recovery on the covenant of warranty ought to be equal, or larger, than the sum sued for. The reasons which induce this conclusion are these : In the first place, the damages to be recovered on a cove- nant of wai-ranty are, in their nature, unliquidated, and therefore are not the subject of a set-off, according to our judgment in the case of Dunn v. White and McCurdy,! Alabama,645. Secondly, the covenant of warranty would not be extinguished by this defence. Thirdly, the covenant it- self operates as an estoppel to the grantor, and would have the effect to transfer to the purchaser or his as- signs, any subsequently acquired title, which should be vested in the grantor. Fourthly, by the convey- ance, all covenants running with the land are ipso faclo assigned to the purchaser. This last reason, it is ap- parent, does not apply to this case, because the breach of the covenant is a consequence of the vendor's own act, but it must so frequently apply to the cases, that it is decisive against the adoption of a practice which would be more like an exception than a general rule. There are many dis- tinctions between the rules which af- fect real and personal estates, which are distinctive features of the com- mon law, and their ramifications ex- tend so far that no one can clearly foresee the consequences of overturn- ing them. Among these not the least important are the different modes of succession after the death of the last possessor, and the different effect of covenants respecting each species of estate. If the defence of fraud was permitted in this case, to avoid a recovery at law, there is nothing in the record to show that the contract has ever been rescinded, and there- fore the vendor hereafter might be liable to an action on his warranty ; or in the case of a title subsequently acquired by him, be estopped by his covenant from asserting it. Many other difficulties may be supposed which do not indeed apply to this particular case, as it is presented on the record, but which are con- clusive against the admission of this defence as a general rule. Take for instance the case of an eviction after the receipt of large rents or profits, for which the purchaser is not responsible to the evictor : are these to remain unaccounted for, or must not the defence be denied under the inference of our previous judgment in Dunn v. White and McCurdy. " Again, a case may be stated which seems to furnish an absolute TO DETAIN PURCHASE-MONEY, ETC. 671 The authority of this case has been repeatedly and re- cently affirmed in that State; and it is there said to be settled that if a purchaser accept a deed with covenants for the title, he cannot, at law, set up either fraud or failure of consideration as a defence to the contract , 1 jrice. test of the unsoundness of this de- fence at law. In the event of the death of the purchaser before evic- tion, and previous to payment of the purchase-money, the estate would de- scend to the heir, whilst the personal representative would be answerable for the debt. Which is entitled, the personal representative to defeat the action against him on the notes, or the heir to his action on the covenant of warranty '/ " This examination of principles and authorities leads us to the conclu- sion that the defendant has no avail- able defence at law ; but it is asked, ■whether it can be supposed that he is remediless, in a case where injury is so apparent? We answer that no such consequence flows from the as- sertion of these rules. Assuming that the warranty was entered into in the most perfect good faith, we think relief must be given in chancery, on the ground of the ven- dor's insolvency. . . . When the de- fendant accepted of the covenant of warranty, it was doubtless considered as an effective security, and if he had been evicted before the payment of the purchase-money, our impressions tend strongly to the propriety of not permitting the vendor himself, if in- solvent, to receive that portion of the purchase-money which he would be compelled to refund in an action on the warranty, though we are aware of decisions to the contrary ; but however this may be, his insolvency furnishes k ground of equitable relief, entirely within the influence of the case of Pharr v. Reynolds,3 Alabama, 529. It is useless to pursue an insol- vent indorsement, but it is quite too injurious to be allowed to pay him money which he will never refund." In the case of Pharr v. Reynolds re- ferred to in this opinion, the Court held that although equity would not, after judgment on a plea in abatement, grant relief in the nature of a new trial, yet that where the bill also prayed for an account, and set forth the insolvency and absence from the State, of the opposite party, the Court would enjoin proceedings on the judgment, letting it stand, however, as a security, while the account was being taken by the Master. 1 Starke v. Hill, 6 Alabama, 785 ; Knight V. Turner, 11 Id. 639 ; Pat- ton V. England, 15 Id. 71 ; McLe- more v. Mabson, 20 Id. 139 ; Homer V. Purser, Id. 575 ; Thompson v. Christian, 28 Id. 558. Thus, in Cole V. Justice, 8 Alabama, 793, it was held that although the purchaser of land, with whom the vendor has covenanted that the estate is free from incumbrance, has a right to ex- tinguish outstanding incumbrances in order to perfect his title, yet that the amount thus paid will not be 67!2 THE purchaser's RIGHT The cases, therefore, of Frisbee v. Hoffnagle, and Cul- lum V. The Branch Bank at Mobile, may justly be con- sidered as standing at the opposite extremes of this branch of law, and the great current of authority seems to flow be- tween the doctrines advanced by these cases. But while on the one hand courts of law seem unwilling to recognize the right of the purchaser to detain the pur- chase money, unless there has been an eviction of the sub- ject of his purchase; either actual or constructive, they do not hesitate to allow such defences in case such an eviction has taken place. Thus where, in Massachusetts,^ the de- fendant on being sued on one of several notes given for the purchase-money of land which had been conveyed " with the usual covenants of seizin and warranty," proved that his vendor's title had been defeated by a judgment recovered against him, under which, shortly before the trial, the de- fendant had been evicted, the Court, without determining the general question whether, when other sufficient reme- dies existed, a mere failure of title, when there were cove- nants of seizin and warranty, would constitute a defence against an action for the consideration, held that in the pres- ent case it was consistent with every sound principle to al- low the defence which was offered. The plaintiff might meet it by showing that the title was good, or that the land, at the time of the eviction, was worth less than the con- sideration, and thereby entitle himself to recover the differ- ence, but without evidence to this effect, he ought to be en- tirely barred of his action.^ So, in a later case, in the allowed as a set-off in an action for Andrews v. McCoy, 8 Alabama, 920 ; the purchase-money, nor avail the Walton v. Bonham, 24 Id. 513. vendee at law under the plea of fail- l Knapp v. Lee, 3 Pickering, ure of consideration. The princi- 459. pies upon which courts of equity 2 Xhe decision in this case seems administer relief in that State, seem to have been to some extent based to be the same as elsewhere ; see upon the insolvency of tlie party lia- TO DETAIN PURCHASE-MONEY, ETC. 673 same State,^ where the defendant in an action biought to recover unpaid purchase-money, had been evicted under a title paramount to that of the plaintiff', it was held that the failure of title was total, and that the former was entitled to a verdict, and decisions to the same effiect have been made in many recent cases. ^ So, in cases where the purchaser has been obliged to buy in the outstanding title, Courts have not hesitated to sanction his right to deduct from the purchase-money the amount necessarily and bond fide paid for that purpose,^ provided ble on the covenants. See as to this, infra. 1 Kice u. Goddard, 14 Pickering, (Mass.) 293. In this case as in Knapp V. Lee, supra, the argument for the plaintiff was chiefly based upon the assumption that the covenants them- selves were a sufficient consideration for the payment of the purchase- money, but this the Court repudiated, and denied the authority of Lloyd v. Jewell, 1 Greenleaf, (JVIe.) 353, which had been decided on that ground, see supra, p. 641. Dickinson v. Hall, 14 Pickering, (Mass ) 217, was a case of a sale of personal property. In Trask i). "Vinson, 20 Pickering, (Mass.) 105, (which, however, was a case of an executory contract), it was said that the cases of Dickinson v. Hall and Kice V. Goddard held that where the consideration of a note was the con- veyance of property, real or personal, and the title failed so that nothing passed by the conveyance, the note was nudum pactum. " Those oases were well considered, and are found- ed on sound principles and sup- ported by an irresistible current of authorities. With the exception of a few obiter dicta in our own reports, 67 and the case of Lloyd v. Jewell, in Maine, scarcely a dictum to the con- trary can be found ; while there is a remarkable coincidence in all the other American and English decis- ions upon the subject." ■a Tibbets v. Ayer, Hill & Denio, (N. Y.) 174; Blair v. Claxton, 4 New York, 529 ; Dodds v. Toner, 3. Indiana, 427 ; Stack v. McLagan, 15. Illinois, 242; Hobein v. Drewell, 20' Missouri, 450 ; McDaniel v. Graoe,. 15 Arkansas, 489, where the text was cited ; Fisher v. Salmon, 1 Cali- fornia, 413, S. C. 2 Id. 128 ; Brandt V. Foster, 5 Clarke, (Iowa,) 298, cit- ing the text. ii Thus it is observed in the most recent English treatise on the law of vendors : " After the conveyance has been executed, the purchaser may discharge out of any purchase-money which remains unpaid (although se- cured) any incumbrances, which either have been created by the ven- dor himself, or are covered by his covenants for title ; but not incum- brances paramount to his title and; not covered by his covenants ; " Dart, on Vendors, 881. 67* THE PURCHASER S RIGHT the covenants were such that these circumstances would en- title him to damages upon them. Thus, in a late case, the defendant being sued on a note for the purchase-money of land conveyed with general warranty, proved that the plaintiff had previously conveyed the land to another, who was about to sue upon his claim, when the defend- ant purchased it for a sum exceeding that of the unpaid purchase-money, and the Court had no doubt that these facts constituted a substantial defence to the action.' 1 Pence v. Huston's Exrs. G Grat- tan, (Va.)304. It seemed to be doubt- ed in this case whether the plea filed came within the statute of 16th April, 1831, authorizing a defendant to file a special plea in bar, setting forth any such failure of considera- tion as would entitle him to damages at law, or relief in equity ; but the Court held, that if the plaintiff sought to take advantage of the insufficiency of the plea, he should have demur- red to it, instead of taking issue. In the later case of Shifflett v. Orange Humane Society, 7 Grattan, (Va.) 297, it was held that this act did not authorize a plea of failure of consid- eration upon equitable grounds, which would require a rescission of the contract out of which the bond given for the purchase-money origi- nated, and a re-investment of the obligee with the interest in the land alleged to have been sold to the obligor, and this was approved in the recent case of Watkins v. Hopkins, 13 Id. 745. It may save the student some waste of time to observe that many cases are cited in the reports and occasional notes in text-books as bearing upon the subject of this chapter, which, in fact, have no con- nection with it. Thus Stone v. Fowle, 22 Pickering, 166; Tillotson V. Grapes, 4 N. Hamp. 448 ; Chandler 0. Marsh, 3 Vermont, 162 ; Long v. Allen, 2 Florida, 404 ; Peques v. Mosby, 7 Smedes & Marsh. (Miss.) 340; Liddell v. Sims, 9 Id. 696; Feemster v. May, 13 Id. 275; Wig- gins V. M'Gimpsey, Id. 532 ; Mobley V. Keys, Id. 677; Leonard ii. Bates, 1 Blackford, (Ind.) 172 ; Tyler u. Young, 2 Scammon, (111 ) 445 ; Greg- ory V. Scott, 4 Id. 392; Condrey u. West, 11 Mnois, 146; Morgan v. Smith, Id. 194; Davis u. M'Vickers, Id. 327; M'Kay v. Carrington, 1 McLean, 50, were all cases of execu- tory contracts, and of course gov- erned 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- fered to rescind the contract. Law- rence V. Stonington Bank, 6 Con- nect. 526, merely decides that be- tween the original parties to a nego- tiable note, its consideration may be inquired into, while Hesom v. Smyth, 16 Maine, 177, holds the equally TO DETAIN PURCHASE-MONEY, ETC. 675 So in a recent case in Indiana/ in an action brought by the indorsee of a promissory note, the defendant pleaded that its consideration was the balance of the purchase-money of certain land conveyed by the payee to the defendant with " covenants of clear title and of war- ranty," and that part of the land was incumbered by judgments and mortgages, which the defendant, in order to prevent a sale, had been obliged to pay off, wherefore the consideration of the note had failed. The plaintiff familiar proposition, that if the note is in the hands of a bona fide indorsee before maturity, and taken in the usual course of business, its original consideration cannot be in- quired into. The student must be careful to class by themselves the cases in Pennsylvania, and the earlier author- ities in South Carolina, which will be presently referred to. 1 Doremus u. Bond, 8 Blackford, (Inti.) 368. " The plea states," said Perkins, J., who delivered the opin- ion, " that the defendant purchased of the assignors of the note sued on, real estate for the consideration of $30,000, which purchase was evi- denced by a, fee-simple deed, con- taining covenants of clear title and undisturbed possession. Such a title, then, at least, as should secure to the purchaser and his assigns perpetual quiet enjoyment, was the considera- tion for the purchase-money stipu- lated to be paid. Did the vendors give, in this case, and continue, according to the iaiport of their covenants, to maintain to the pur- chaser such a title ? According to the allegation in the plea, they did not, but the purchaser was compelled to and did pay incumbrances to a greater amount than the note sued on — it being for the only unpaid portion of the consideration — but for the payment of which incum- brances, he would have lost the pos- session and title to the property purchased, or a part thereof. In just the amount, then, that the vendors have suffered the purchaser to pay by compulsion, to secure the benefit of their covenants of title and pos- session, have those covenants failed as a consideration, and that failure being perfected before the payment of all the purchase-money, it may be recouped out of the original consider- ation. The defendant is not bound to plead the matter by way of set-off, springing, as it does, out of the default of the vendors in relation to the original contract, and not from any new or subsequent dealing on his part." In the late case of Champlin v. Dotson, 13 Smedes & Marsh. (Miss.) 553, the Court sustained a bill to enjoin the purchaser from setting up a defence at law to payment of the purchase-money, to a greater extent than the amount paid by him to pur- chase the land from one who had bought it at sheriff's sale under a paramount incumbrance ; see, also, Morgan v. Smith, 11 Illinois, 201. 676 THE purchaser's right replied that these payments had been made by the defend- ant after notice of the assignment of the note. But this was obviously held bad on demurrer, and judgment given for the defendant.^ Other cases have recognized and ap- plied the same principle.^ We now approach the examination of the cases in which a purchaser has sought the jurisdiction of equity either to enjoin the collection of the purchase-money, or to rescind the contract. It has been before observed, that although the machinery of a court of equity seems better adapted to the regulation of the respective rights of the parties in such cases as are likely to arise in this connection, yet that unless the purchaser has a present right to damages upon his cove- nants, no grounds exist, as a general rule, on which to found an equitable jurisdiction. Where such a right exists, the jurisdiction rests on famihar principles. Where it does not, although exceptional cases may occur, where all the parties to the title are before the Court, and their respective rights, therefore, capable of equitable adjustment,^ yet, as a general rule, the quia ^«me^ jurisdiction seems to be one but rarely exercised. The cases of Bumpus v. Platner, and Abbot v. Allen, are generally referred to as leading authorities on the sub- ject of equitable relief from payment of the purchase- 1 It is presumed that the plaintiff the vendor sues for the purchase- was not a holder for value, before money, the purchaser may avail him- maturlty, and without notice. self of the plea of failure of eon- 2 Brandt v. Foster, 5 Clarke, sideration, and will not be forced to (Iowa,) 298 ; McDaniel v. Grace, 15 pay the money and then resort to Arkansas, 487, where it was con- a cross action upon the covenants of ceived to be settled that " where a his deed to recover it back ; Rawle purchaser has taken a deed with on Covenants for Title, 604 to 732.'' general covenants of warranty, and 3 See these cases referred to there is a total failure of title, or an infra. eviction, or its legal equivalent, and TO DETAIN PURCHASE-MONEY, ETC. 677 money, in the absence of fraud. In the first of these cases, decided in New York, in the year 1814,^ where the bill prayed an injunction to restrain proceedings on a mortgage given for the purchase-money, on the ground that the title had been previously conveyed to another, all of whose estate had become forfeited to the Common- wealth, the Chancellor, admitting that it was difficult to extract from the books what was the rule of equity on this point of failure of consideration, still apprehended that it might be safely said that there was no case for relief where possession had passed, and continued without any ■interruption under a paramount title. He considered an eviction at law an indispensable part of the plaintiff's claim to relief. The defendant conveyed to the plaintiffs with covenants of warranty, and he was bound to defend their title, and non constat that he was not able to do it. If the title failed, the plaintiff's could resort to the covenants in their deed for their indemnity. Hence it was said to be without precedent, and dangerous in principle, to arrest the collection of the purchase-money on the mere allegation of a failure of title, without more. In Abbot V. Allen,^ which was substantially similar in its features to the case just cited, a doubt having been cast in the argument over the correctness of these principles, the Chancellor reviewed his decision, and was satisfied of its soundness. " It would," said he, " lead to the greatest inconvenience, and perhaps abuse, if a purchaser in the actual enjoyment of land, and when no third person asserts or takes any measures to assert a hostile claim, can be permitted, on suggestion of a defect or failure of title, and on the principle of quia timet, to stop the payment of the purchase-money and of all proceedings at law to recover it. 1 1 Johns. Ch. K. 213. 2 2 Johns. Ch. R. 519— decided in 1817. 57 * 678 THE purchaser's right Can this Court proceed to try the validity of the outstand- ing claim in the absence of the party in whom it is supposed to reside, or must he be brought into court against his will, to assert or renounce a title which he never asserted, and perhaps never thought of 1 The only plausible argument for the injunction is, that as the plaintiff" has covenants to secure his title, the interference of this Court is necessary to prevent circuity of action, and that the plaintiff ought not to be compelled to pay the purchase- money, when, by a suit on his covenants, he might, almost concurrently, be enabled to recover it back again. This argument would apply to every case of mutual and inde-- pendent covenants, and would prove too much ; but the proper answer here is, that to sustain the injunction would be assuming the fact of a failure of title before eviction, or trial at law, and which this Court, as not possessing any direct jurisdiction over legal titles, is not bound or author- ized to assume. This Court may, perhaps, try title to land when it arises incidentally; but it is understood not to be within its province, when the case depends on a simple legal title, and is brought up directly by the bill. The power is only to be exercised in difficult and complicated cases, affording peculiar grounds for equitable interference." The question that might be presented, if there had been a previous eviction, or an existing incumbrance which .appeared to admit of no dispute, was here left undecided. It would be hazardous, it was said, to define the limits of equitable relief in supposable cases of the like kind.-' 1 It may, however, be observed, nearly every case of specific per- that when a. question of title is pre- formance, and come clearly within sented, the detei-mination of which is the concurrent jurisdiction of equity, incidental and necessary to the relief It is, moreover, impossible, in prac- prayed, equity will not deny that tice, for a Court to refuse to examine relief merely because the question of the adverse title in cases where the title is involved. Such questions purchaser has a present right to must be necessarily determined in actual damages, and the relief is TO DETAIN PURCHASE-MONEY, ETC. 679 Within a few weeks, however, of this decision, the case of Johnson v. Gere ^ was presented before the same Court, upon an ex 'parte apphcation for aii injunction to restrain proceedings on a mortgage, given for the purchase-money of land, which had been conveyed with covenants for title, on the ground of an ejectment having been brought to recover the possession. The bill prayed for an injunction until answer and the further order of the Court. " The Chancellor granted the injunction, and distinguished this case from those wherein there was only an allegation of an outstanding title, and no disturbance, prosecution, or evic- tion thereon. Here the party was actually prosecuted by an action of ejectment, on the ground that the title derived from the defendant was defective. The defendant is entitled, and it will be his duty to defend the ejectment suit, and until that suit is disposed of, he ought not to recover the remaining moneys due on the bond." This decision, however, is not now generally regarded as a precedent. Although in occasional cases in New York, there have been intimations that equity will not relieve, unless there has been an eviction, " or a suit actually commenced to recover the land;"^ yet in none of these cases did that circumstance occur,^ and the general course based solely upon the ground of pre- Gere, takes no notice of the case in venting circuity of action. For in his Commentaries (2 Com. 4 7 2), while such cases it must determine that the he quotes with approbation the case right to damages exists, and it by no of Abbot v. Allen, and those which means universally happens that it is have followed it. The authority of relieved as to this by a previous Johnson w. Gere was denied in the judgment of a common-law court. recent case of Piatt v. Gilchrist, 3 1 2 Johns. Ch. 546. Sandf. S. C. K. 118, and in Miller w. 2 Leggett V. M'Carty, 3 Edwards' Avery, 2 Barb. Ch. 594, where Ch. 126; Edwards v. Bodine, 26 Chancellor Walworth held the fol- Wendell, 114. lowing language : " I think it evident 3 It is also worthy of remark, that that the reporter was under a mis- Chancellor Kent, who had himself take in the statement of the case, or granted the injunction in Johnson v. that the Chancellor overlooked the 680 THE PURCHASERS RIGHT of decision in that State has not only repudiated the doctrine of Johnson v. Gere, but has restrained the appli- fact that it was not alleged in the bill that the complainants ever be- lieved their title to the land was defective. For it cannot be possible that he intended to decide that a mere claim of a paramount title by a third person, and the bringing of a suit upon that claim against the pur- chaser, was sufficient to authorize the Court to stay the vendor, who had warranted the title, from proceeding at law or in equity to collect the un- paid purchase-monej'. If the law was so, any vendee who was not ready to pay his purchase-money when it be- came due, might make a secret arrangement with some third person to claim the premises and bring an ejectment suit therefor, and thus tie up the vendor from collecting his debt indefinitely. For, if the vendor should be allowed by the Court at law to interfere with the defence of the ejectment suit so as to get it out of court in a reasonable time, the plain- tifi' might submit to a nonsuit and then bring a new action. And such new action, either by the original plaintiff or by a new claimant, would entitle the vendee to a new decree, staying the collection of the pur- chase money until the final termina- tion of that suit." The authority of Johnson v. Gere, has, however, been supported by a few cases. In the case in New Jer- sey of Shannon v. Marselis, Saxton, 413, all the parties to the title were before the Court, and there could therefore be with propriety an equi- table settlement of mutual claims, and the case did not need the author- ity of Johnson v. Gere, which was cited with approbation, nor the ex- pression, " Where there is a mere allegation upon an outstanding title or incumbrance, the Court will not interfere, but leave the party to his remedy on the covenant, but where there is an eviction, or even an eject- ment brought, it will interpose." In Van Riper o. Williams, 1 Green's Ch. (N. J.) 407, to a bill for a fore- closure of a mortgage, the defend- ant answered that it was given for the purchase-money of land convey- ed with covenants for seizin and against incumbrances, excepting a specified mortgage, but that the premises were subject to another mortgage, " still outstanding, unsatis- fied and uncancelled." The case being submitted on the pleadings and proofs, the Chancellor held that the mortgage must be first removed before a decree for foreclosure and sale in equity could be made, or so much of the proceeds of sale as might be necessary for that purpose must, by the decree, be directed to be applied to payment of the incum- brance, and the amount thus applied deducted from the mortgage debt. In Van Waggoner u. M'Ewen, Id. 412, a defence to a bill for fore- closure of a mortgage was denied, because the defendant made a mere allegation of an outstanding title, but the Court expressly declared, that " if a suit were pending to try the title, or the defendant had been dispossessed, there would be propriety in resisting the foreclosure of the morts;a2e. This distinction is recognized in the TO DETAIN PURCHASE-MONEY, ETC, 681 cation of the quia timet jurisdiction of equity, in this case of Johnson v. Gere, and Shan- non V. Marselis." And in the recent case of Jaques v. Esler, 3 Id. 462, the same doctrine rule was applied, and an injunction was held to have been properly granted for the purpose of restraining proceedings by an as- signee of a bond given for purchase- money of land, on the ground that an ejectment had been brought by persons claiming a paramount title, who had also filed a bill to set aside the conveyance to the complainant. " For it is well settled, that the pur- chaser of real estate by deed of warranty has a right to relief in equity against the vendor, who seeks to enforce the payment of a bond and mortgage given for the purchase- money, until a suit actually brought to recover the premises by a person claiming the paramount title shall have been determined. He is not obliged to look merely to the cove- nants in the deed ; he is not to be driven to such circuity of action, nor to rely upon that as his only security. The fund in his hands is a security, of which it would be inequitable to deprive him." The injunction was dissolved upon another ground, viz.: that upon the assignment of the bond, which was after these suits had been brought, the complainant had stated that he had no defence what- ever to make to its payment, and the Court held that he had thus waived an equity to which he would otherwise have been entitled. See, as to this point, Morrison v. Beck- with, 4 Monroe, (Ken.) 73. In Puck- ett V. M'Donald, 6 Howard, (Miss.) 269, the purchasers filed a bill to enjoin a judgment obtained by administrators, for the purchase- money of lots sold by them with covenant of general warranty, and of which the purchasers were in possession, on the ground that the requisitions of the law, as to giving the proper notice, &c., had not been complied with by the administrators, and the (Jourt, while freely admitting the doctrine that when the vendor is let into possession under a deed with full covenants, and there has been no eviction nor any fraud, he cannot resist the payment of the purchase- money on the ground of a defect in title, but must be driven to his cove- nants, yet held that in the present case, the sale was virtually made by the Court, and the administrators acted only as commissioners to exe- cute the order of sale, and that their covenants could not furnish a foun- dation upon which an action could be maintained against them personally (but see supra, p. 571), nor could the vendee be supposed to place any reliance upon such assurance. In Woods V. North, 6 Humphreys, (Tenn.) 309, the circumstances were similar and the decision the same way, though it was put upon the ground that a covenant for seizin which the administrator had given, was such a representation by him as amounted to fraud, and the contract was rescinded on the ground of mis- representation. The student will be careful not to rely too strongly upon either of these cases in practice. In Virginia, a practice was intro- duced at an early period for the pur- pose of enabling a mortgagee to ob- tain the money lent without the de- lay and expense attending a bill of 682 THE PURCHASER S RIGHT connection, within such narrow limits as almost to amount foreclosure. The lands were con- veyed by way of mortgage to a third person, agreed on by the mortgagor and mortgagee, in trust, upon non- payment of the money at the ap- pointed time, to sell, mortgage, or lease the premises. (See 1 Lomax's Dig. 324). Under such deeds of trust, courts of equity in that State were very liberal as to enjoining sales where the defect of title, cov- ered by the defendant's covenants, could be shown to exist. In Gay v. Hancock, 1 Randolph, 72, where the pxirchaser proved an outstanding claim embraced within his covenants, and a suit then actually pending un- der it, the Court of Appeals held, that the sale should be enjoined until the cloud resting on the title, in con- sequence of the claim, should be re- moved. This decision was approved and followed in subsequent cases ; Kalston v. Miller, 3 Id. 49 ; Miller v. Argyle, 5 Leigh, 467 ; Koger v. Kane, Id. 606 ; Long ,-. Israel, 9 Id. 569 ; and it was admitted that the Court had, in favor of purchasers, gone far beyond anything which had been sanctioned by the courts of chancery in England, or elsewhere, in enjoin- ing the payment of the purchase- money after the purchaser had taken possession under a conveyance, es- pecially with general warranty ; but it was said that it had never gone so far as to interfere, unless the title were questioned by a suit, either prosecuted or threatened, or unless the purchaser could show clearly that the title was defective ; Kalston v. Miller, supra. In Miller v. Argyle, it was said that a distinction had al- ways been strongly drawn between an injunction in the case of a deed of trust, and in the ease of a judg- ment at law, " for it never can be equitable to permit a sacrifice by sale under a doubtful title, though it may be but just that the vendor should be suffered to enforce a judgment for his purchase-money, when the vendee is in possession, since the doubt about the title may eventually turn out to be frivolous and groundless." In the case of Beale v. Seiveley, 8 Leigh, (Va.) 675, the Court after referring to the CEises in New York of Abbott V. Allen, &o., (supra, p. 676,) said, " With us it cannot be denied that the practice has been more lax. But even with us, relief is only given to a purchaser who has obtained his deed where there has been an actual evic- tion, or where a suit is depending or threatened, or where the vendee, placing himself in the attitude of the superior claimant, can show a clear outstanding title or incumbrance. A still greater liberality has prevailed, it is true, in enjoining proceedings under deeds of trust, but this rests upon peculiar principles." This dis- tinction, however, seems not to have been always clearly observed, and the practice sanctioned with respect to deeds of trust, seems to have in- sinuated itself into all securities given for purchase-money ; see Yancey v. Lewis, 4 Hen. &Munf 390 ; Long v. Israel, 9 Leigh, 569 ; Clark v. Hard- grove, 7 Grattan, 399. Grantland v. Wight, 5 Munford, 295, was a case of an executory contract. In the recent caseof Price u.Ayres, 10 Grattan, 5 75, there were no covenants for title as to one purchaser, and no assertion of the paramount title as to the other, TO DETAIN PURCHASE-MONEY, ETC. 683 to its virtual denial.^ Thus, in one of the most recent cases,^ on a bill to foreclose a mortgage given for the pur- chase money of land conveyed with warranty, the answer alleged that a suit had been brought by persons claiming the premises by paramount title, and prayed that the fore- closure and sale might be deferred until this should have been determined ; but it was held that although after evic- tion, relief would be extended in order to prevent circuity of action, yet until that event the Court had no authority to interfere. " The purchaser in this case promised to pay the purchase-money at stipulated periods, and the seller covenanted that if at any time the title should fail, and the purchaser be evicted by a paramount title, he would refund the purchase-money with interest. The possibility that the title might fail, and the purchaser be evicted, was in the minds of the parties. They might also have provided that in case of a claim being made by title paramount before actual payment of the consideration-money, the right of the vendor to call for its payment should be suspended. But this they have not thought proper to do, and this Court can with no more propriety add such a clause to the con- tract, and suspend the collection of the purchase-money, than it can suspend the collection of rent expressly cov- enanted to be paid, upon the destruction of the build- ings, where the parties have not themselves provided against it." ^ and relief was, therefore, denied to 344 ; Miller v. Avery, 2 Barb. Ch. both of them. 594 ; see Tone u. Brace, 1 Clarke's 1 Bates V. Delavan, 5 Paige, 299 ; Ch. 291 ; S. C. Id. 509 ; 8 Paige, Hoag V. Rathbun, 1 Clark's Ch. 12; 597; 11 Id. 569. See, also, passim, Griffith V. Kempshall, Id. 571 ; Den- Chesterman v. Gardiner, 5 Johns, ston U.Morris, 2 Edwards' Ch. 37; Ch. 29; Gouverneur v. Elmendorf, Leggett V. McCarty, 3 Id. 124 ; Id. 79. Withers v. Morrell, Id. 560 ; Ed- 2 Piatt v. Gilchrist, 3 Sandf. S. C. ■wards v. Bodine, 26 Wendell, 109; 118. Woodruff V. Bunce, 9 Paige, 443 ; 3 piatt v. Gilchrist, 3 Sandf. S. C. Banks v. Walker, 2 Sandford's Ch. R. 118. " The Court, moreover," 68* THE PURCHASER S RIGHT The general principle recognized by this class of cases has been approved and enforced in most of the other States ; and it seems to be well settled that where the only covenants in the deed are those for quiet enjoyment or of warranty, and so long as there has been no eviction, actual or constructive, equity will, as a general rule, refuse to entertain a bill for relief, either to enjoin the purchase-money,^ or, a fortiori, to rescind the contract ; ^ and although it has been at times continued Mason, J., who delivered the opinion, "if it interfere at all, must do so upon the simple fact of the claim having been made by suit, without reference at all to the char- acter of the claim. . . . This Court cannot try the title. Nor can it speculate upon the probabilities of the result of a suit, and grant or re- fuse relief according to a crude no- tion it might entertain as to the valid- ity or invalidity of the adverse title. It is easy to see how dangerous the adoption of such a principle would be ; what a temptation it would hold out to the bringing of actions by col- lusion in order to stay foreclosures, and how greatly it would affect the value of mortgage securities of this character. . . . This decision may operate severely on the defend- ant in this case, and especially if the adverse claim shall turn out to be well founded ; but the contrary de- cision would operate with severity on the plaintiff, if the title shall prove good. He is, moreover, only pursu- ing his legal remedy for a debt ad- mitted to be due, while the defendant has all the protection for which she stipulated in the event of the title proving defective." 1 Barkhamsted v. Case, 5 Connect. 528 ; Whitworth v. Stuckey, 1 Rich- ardson's Eq. (S. Car.) 408 ; Beale v. Seiveley, 8 Leigh, (Va.) 658, (and see the Virginia cases, supra, p. 682) ; Clanton v. Burges, 2 Dev. Eq. 15; Merritt v. Hunt, 4 Iredell's Eq. (N. Car.) 406 ; Wilkins v. Hogue, 2 Jones' Eq. (N. Car.) 4 79; Miller c. Long, 3 Marshall, (Ken.) 334 ; Rawlins v. Timberlake, 6 Id. 233; Percival v. Hurd, 5 J. J. Marshall, (Ken.) 670 ; Simpson v. Hawkins, 1 Dana, (Ken.) 305 ; Elliott v. Thompson, 4 Hum- phreys, (Tenn.) 99 ; Miller v. Owen, Walker, (Miss.) 244 ; Anderson v. Lincoln, 5 Howard, (Miss.) 279 ; Coleman v. Rowe, Id. 460 ; Vick u. Percy, 7 Smedes & Marsh. (Miss.) 256 ; Walker v. Gilbert, Id. 456 ; McDonald v. Green, 9 Id. 138 ; Green v. McDonald, 1 3 Id. 445 ; Johnson v. Jones, Id. 580 ; Latham V. Morgan, 1 Smedes & Marsh. Chanc. (Miss.) 618 ; Gartman v. Jones, 24 Mississippi, 234 ; Wailes v. Cooper, Id. 208 ; Harris v. Ransom, Id. 504 ; Edwards v. Morris, 1 Ohio, 532; Stone u. Buckner, 12 Id. 73. 2 Prevost V. Gratz, 3 Washington's C. C. R. 439 ; Beach v. Waddell, 4 Halstead, Ch. (N. J.) 299 ; Green- leaf u. Queen, 1 Peters, (U. S.) 138; Patterson v. Taylor, 7 Howard, (U. S.) 132 ; Leggett v. M'Carty, 3 Ed- wards' Ch. (N. Y.) 324; Woodruff TO DETAIN PURCHASE-MONEY, ETC. 685 intimated that the presence of a covenant for seizin may in some cases fortify the position of the purchaser,^ yet it does not appear that the cases generally draw much distinction between the different covenants for title.* It frequently happens that a purchaser accepts his deed with full knowl- edge of the defect or incumbrance, and with the intention of relying upon the covenants in that deed for his protection.^ In such case, to enjoin the collection of the purchase-money because of the presence of a covenant for seizin or against incumbrances, would be to make for the parties a contract they did not make for themselves ; and it would seem to be a proper rule that the interference of equity should be re- fused wherever the purchaser's knowledge and the state of facts continue to be the same as they were at the time of the conveyance.* In many of the cases upon this subject, V. Bimoe, 9 Paige, (N. Y:) 443; Whitwortli V. Stuckey, 1 Kich. Eq. (S. Car.) 4C9, (see the able remarks of Harper, Ch., in that case) ; Van Lew V. Parr, 2 Id. 321 ; Maner v. Washington, 3 Strobhart, Eq. (S. Car.) 1 71 ; Long v. Israel, 9 Leigh, (Va.) 556 ; Young v. M'Clung, 9 Grattan, (Va.) 336 ; Lewis v. Mor- ton, 5 B. Monroe, (Ken.) 1 ; Percival V. Hurd, 5 J. J. Marshall, 670; Vance V. House, 5 B. Monroe, (Ken.) 537; Buchanan v. Alwell, 8 Humphreys, (Tenn.) 518 ; Roberts v. Wool- bright, 1 Geo. Decis. 98; M'Gehee V. Jones, 10 Georgia, 135 ; Beck v. Simmons, 7 Alabama, 76 ; Witty v. Hightower, 6 Smedes & Marsh. (Miss.) 345 ; McDonald v. Green, fl Id. 138 ; S. C. 13 Id. 445 ; Cooley v. Rankin, 11 Missouri, 647 ; Beebe v. Swartwout, 3 Gilman, (lU.) 162. The full and separate examination of the cases thus referred to, would demand 58 more space than can be allotted to them here, and I have, therefore, only attempted to refer the student to the principles by which these cases are governed. 1 Long V. Israel, 9 Leigh, (Va.) 569 ; Simpson v. Hawkins, 1 Dana, (Ken.) 305 ; Ward v. Grayson, 9 Id. 267. 2 Beach v. Waddell, 4 Halstead's Ch. (N. J.) 308. In Woods v. North, 6 Humphreys, (Tenn.) 309, a cove- nant for seizin given by an executor who had no power of sale was put upon the ground of a representation made by him, and the contract was therefore rescinded on the ground of misrepresentation. See Ingram v. Morgan, 4 Id. 66, cited infra, p. 692. 3 See supra, p. 131 et seg. * The able opinion of Mr. Chief Justice Gibson in Lighty v. Shorb, 3 Penn. R. 447, may be read with great profit in this connection, though. 686 THE purchaser's right the fact of this knowledge on the part of the purchaser wa:s strongly relied on by the Court as a ground for refusing relief ; and although it is well settled that such knowledge is no bar to his recovery upon the covenants themselves in a court of law,^ yet it is obvious that it should operate strongly, if not conclusively, against his right to equitable relief, where these covenants are not yet so broken as to give a present right to actual damages.^ Where, however, a purchaser would be entitled, at law, to defend himself from payment of the purchase-money, either wholly or partially, and has had no opportunity of doing so, a court of equity will not hesitate to grant relief according to the peculiar circumstances of the case. This may be done in various ways ; by enjoining the collection of the purchase-money, either temporarily or permanently — by awarding issues o^ quantum daniiiificatus^ — or even, in some cases where the eviction has been total, by decreeing a rescission of the contract, and a return of the purchase- money already paid. Thus, in a case M'here judgment was obtained upon a bond given for the payment of the residue of purchase- money, the vendor had, before the execution of the deed, which contained covenants for right to convey and of war- ■the student must be careful not to sarily incident to the relief and in- consider the Pennsylvania cases gen- separable from it ; see 2 Story's Eq. erally on this subject as having more Jur. § 796, where most of the au- than a local application. thorities are collected ; Thornton v. 1 Supra, p. 128. Court, supi-a, p. 366 ; Sainsbury v. 2 See the remark in Wailes v. Jones, 5 Mylne & Craig, 1, per Lord Cooper, 24 Mississippi, 232 ; Supra, Cottenham; Hatch v. Cobb, 4 John- p- 666. son's Ch. 560 ; Kempshall v. Stone, 3 The right to assess damages 5 Id. 194; Coster v. The Monroe through the machinery of a court of Manufacturing Co. 1 Green's Ch. equity cannot be doubted in cases in (N. J.) 476, and Hopper v. Lutkins, ■which the claim for damages is neces- 3 Id. 149, cited infra, p. 688, note. TO DETAIN PURCHASE-MONEY, ETC. 687 ranty, become surety upon a judgment, under which, after the execution of the deed, the use of the property for seven years was levied on and sold, and possession recovered by the sheriff's vendee, " the Court, upon bill, answer and ex- hibits, having ascertained, by a writ of inquiry, the damages which the complainant had sustained on account of the in- cumbrance, decreed a perpetual injunction against the judg- ment to the amount of the assessment and costs." ^ So, where after a bill had been dismissed in which the purchaser had sought to enjoin a judgment obtained for purchase-money, on the ground of an anticipated eviction, another bill was filed setting forth that since the former decree the purchaser had been actually evicted under an action of ejectment, in which his vendor and himself had been co-defendants, it was held that the judgment should be perpetually enjoined.^ 1 Shelby v. Marshall, 1 Blackford, (Ind.) 385. 2 Luckett V. Triplett, 2 B. Monroe, (Ken.) 39. In the very recent case in Vermont, of Bowen v. Thrall, 2 Williams, 382, the bill was filed to restrain the proceeding at law upon a note given for the purchase-money of land which had been agreed to be conveyed by a warranty deed con- taining covenants for seizin and against incumbrances. The deed, however, was only of the grantor's right, title and interest, with a cove- nant of general warranty, and the premises were incumbered with a mortgage previously given by the grantor, which it was proved the lat- ter assumed to pay, but under which the mortgagee afterwards took pos- session of the premises. The Court considered that if the deed had been drawn according to the contract be- tween the parties, the vendor would have been obliged to pay the mort- gage. As it was, the legal effect of the deed was to throw the burden of this debt upon the purchaser ; (see Mills V. Cathn, 22 Vermont, 104, and supra, p. 525, for cases where a cov- enant of general warranty is held to be restrained by a limited estate con- veyed.) At law, therefore, the latter was without adequate remedy, as the deed must there be enforced as it was drawn, and as it contained no cove- nant against incumbrances, the pur- chaser had no defence at law to the note. A court of equity would, how- ever, protect the rights of the parties under the contract, and enforce it in the same manner and to the same intent as if the deed had been drawn as it should have been, and whatever might be the rule at law, a court of equity would not permit a grantor to 688 THE PURCHASER S RIGHT So, where on a bill to foreclose a mortgage given for the purchase-money of land sold with covenants for quiet enjoy- ment, for further assurance and of warranty, the defendants proved that the title was defective — that an ejectment had been brought, of which the complainants were notified and required to defend — that judgment had been entered in favor of the paramount title, and execution issued — and that the defendants, to avoid a dispossession, purchased this title, the Court held that the amount thus paid should be deducted from the mortgage debt, and referred the case to a master to ascertain the damages thus due for a breach of the covenants.^ recover the entire purchase-money, and leave unpaid Incumbrances upon the land which he vpas under obhga- tions to discharge. The purchaser had a right to retain so much of the purchase-money as was sufficient to secure him against the incumbrances, particularly where the grantor was insolvent, and no adequate remedy could be had on his covenants. The suit at law was therefore enjoined until the incumbrances should be re- moved. 1 Coster V. The JSlonroe Manufac- turing Co. 1 Green's Ch. (N J.) 476. " I confess," said the Chancellor, " I have not been able to find this sub- ject considered in the cases as I had expected, and yet it appears to me so obviously correct in principle, that I cannot doubt its propriety. The great objection is the difficulty in this court undertaking to settle un- liquidated damages. I know this is a difficulty, and yet in some cases a court of equity will, to effectuate justice, settle damages which are un- Mquidated. But if this obstacle should be deemed insuperable, still it would constitute no sound objection to the Court staying the complainant's re- covery on his mortgage until a rea- sonable opportunity be afforded the defendant to ascertain his damages at law, and then allow that amount to be offset. Which of these courses to ascertain the damages under the covenant, should be pursued, might depend on the peculiar circumstances attending the case ; but • it would seem to me, it should, as a general rule, be referred to a master, unless the complainant requires a trial at law. If the defendant claims the allowance here, he should be content with the forms of proceeding in this court, which is by reference to a master. To settle the damages, and thus close the whole controversy in one action, accords well with the fa- miliar principles of a court of equity, of preventing a multiplicity of suits." But in the subsequent case of Hop- per V. Lutkins, 3 Id. 149, a purchaser filed a bill for an injunction, setting forth that the defendant had sold to him certain mills and water rights with covenants for seizin, for right to TO DETAIN PURCHASE-MONEY, ETC. 689 So, in a late case in New York, where on a similar bill, the defendant proved that under proceedings in partition convey, against incumbrances, and of warranty — that soon after, the defendant executed to him a bond to indemnify the complainant against an adverse suit brought by an adjoining owner to recover damages for an overflow of the dam by reason of its being at a greater height than the defendant had had a right to keep it — that the defendant was suing for the consideration-money, and was speedily becoming impoverished. It was a part of the complainant's case, that the covenants were to have been so drawn as expressly to include the right to keep the dam at this height, but this was denied by the answer. The Court held that the only equity in the bill was the charge of mistake, which was wholly denied ; but that giving the complainant the full bene- fit of the covenants, the case was clearly distinguishable from those in which a mortgagee was seeking the aid of that court to foreclose. " To carry out the relief sought, the in- junction must continue until all the damages which the complainant can be put to (and which the covenants are designed to protect him against), are ascertained and settled. This would be a very uncertain period, and proves to my mind, that a rule of this kind would be productive of great injustice. Whether these suits will ever be brought, or, if brought, will be repeated, is all beyond the power of this court to know, as the action of the parties is beyond its power to control. How can this court, from the very course of its proceedings, ascertain, in any satis- 58* factory manner, the damages sus- tained by the flow of this water ? Even at law, it is often difficult to come to a result. I have been fur- nished with no case that goes the length here desired. The complain- ant's counsel has referred me to the case of Johnson v. Gere, 2 John. Ch. R. 546, but that is by no means like the present. There, the title to a part of the property sold was defec- tive, and an ejectment was com- menced for recovery of the posses- sion. The Chancellor enjoined the suit at law on the bond for the pur- chase money, and also proceedings on the mortgage, until the ejectment should be determined. This is widely different from settling damages aris- ing from the overflow of lands. If a mortgagor is deprived, by a trial at law, of the half or other share of the land which he purchased, a computa- tion may be made by a master of the value of that share, and it can be deducted from the amount of the mortgage ; but how he would ascer- tain and adjust all the damages which this complainant may sustain, by maintaining the dam in question at its present height, is more than I am able to discover. It would be im- practicable, in my view of the case, to do so with any certainty. It is true that the same principle pervades both cases, that of preventing circu- ity of actions, and allowing a set-off of damages under covenants against the purchase-money. The difference is that in the one case it is practica- ble to do so, and in the other it is not. In the recent case in this court 690 THE PURCHASER S RIGHT between himself and the holders of a paramount title to an undivided part of the land, their purpart had been allotted to them, and possession surrendered by him, the Court held that the defendant was entitled to a credit, to the amount of the damages sustained by reason of the breach of the ven- dor's covenant.-^ In the State of Missouri, moreover, provision is made by statute, for the cases in which the jurisdiction of equity may be exerted in this behalf.^ of Coster v. Monroe Manufacturing Co, 1 Green's Ch. E. 467, I went upon the force of authority so far, after a judgment had been obtained in ejectment against the mortgagor for a part of the premises, for which he gave the mortgage, and after a repurchase made by liim of that part from the plaintiff in ejectment, to refuse a decree for sale on the •mortgage, until the damages the •defendant had sustained under his covenants were ascertained by a master and credited on the mortgage. I stiU think that view of the case correct and attainable, but I do not see how it can be pressed further, so as to reach every possible case of damages arising under covenants." 1 Fowler v. Poling, 6 Barb. S. C. 165, (see supra, p. 277,) overruling Fowler v. Poling, 2 Id. 300. 2 The Revised Statutes, (1845, c. 82), provide, Sec. 1. "That in all cases where there shall be a sale and ■transfer of any lands or real estate, • or a sale or transfer of any interest to any lands or real estate, and any part or the whole of the purchase- ; money thereof shall not be paid at the time of such transfer and sale, .the purchaser of any such lands or .real estate, shall be entitled to an injunction against all persons inter- ested therein, in any of the following cases : — First, where the grantor has covenanted a title to the lands or real estate sold in fee-simple, and the same has failed, or was wholly defec- tive at the time of such sale ; second, where the grantor has a title as cov- enanted to a part only of the lands or real estate sold ; third, where there is a failure of title to the whole or any part of the lands or real estate sold by such grantor, and continues to be defective at the time of making the application for said injunction. " Sec. 2. Any court now author- ized by law to grant injunctions, shall have power to grant injunctions under this act ; but no such injunc- tion shall be granted in any case, nor shall any relief be extended in any case where the purchaser has notice of the defect of title complained of by him, before the purchase thereof. " Sec. 3. In all cases arising under the provisions of this act, it shall be the duty of the Circuit Court, sitting as a court of chancery, to hear all facts relative to such case, and to make a final decree therein, accord- ing to such failure, as may be shown to exist in the title to said lands or real estate sold. TO DETAIN PURCHASE-MONEY, ETC. 691 There have been exceptional cases which seem to deter- mine that although an assertion and prosecution of an adverse title may not, of itself, be a sufficient ground to entitle a purchaser to equitable relief, yet that such an asser- tion and prosecution, when coupled with the insolvency or non-residence of the party bound by the covenants, form, together, an equity sufficient to bring the case within the quia timet jurisdiction which, in extraordinary cases, courts of equity have exercised.^ Thus, in an early case in Virginia,^ an injunction was held to have been properly granted to restrain proceedings on a bond given for the purchase-money of land, conveyed with a covenant of warranty, upon the allegation that a suit was actually being prosecuted under a paramount title, and that the vendor was insolvent. So 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 their intestate, on the ground that a judgment had been " Sec. 4. The amount to be en- l Besides the oases cited infra, the joined by such court, shall be in pro- student will find dicta to this effect portion to the amount of failure of in Percival i". Hurd, 5 J. J. Marshall, such title in the grantor, with reason- (Ken.) 672; Vance v. House, 6 B. able damages to the purchaser, if Monroe, (Ken.) 540 ; MoLemore v. any shall be sustained by such failure Mabson, 20 Alabama, 139 ; McGehee of title. V. Jones, 10 Georgia, 1S5 ; Beebe v, " Sec. 5. This act shall not extend Swartwout, 3 Oilman, (111.) 17 7, and to any case where the grantor does Vick v. Percy, 7 Smedes & Marsh, not covenant a title in fee-simple to (Miss.) 268 ; see alsoBowen v. Thrall, the lands or real estate sold. 2 Williams, (Verm.) 382, supra, p. " Sec. 6. This act shall extend to 687. cases where the grantor has executed This quia timet jurisdiction has al- bond for title to the lands or real ready been, to some extent, consid- estate sold, in the same manner as ered, in connection with the subject though such grantor had executed a of covenants for title, in a preceding deed for the same." chapter. See supra, Chapter IV. p. The case of Jones v. Stanton, 11 154 et seq. Missouri, 433, infra, p. 695, was not ^ Stockton v. Cook, 3 Munford, decided under this statute. (Va.) 68. THE PURCHASER S RIGHT recovered against them by a subsequent alienee on the cov- enants of their intestate, and that the vendor was insolvent, the Court were clearly of the opinion that the complainants were entitled to the relief prayed for.^ So, in a late case in Tennessee, the purchaser filed a bill to enjoin a judgment obtained on a note given for the purchase-money of land, conveyed with covenants for seizin and of warranty, on the ground that his vendors had but an equitable title, and that a bill had been filed to subject the land to sale for a balance of purchase-money still remaining unpaid by them, and it was held that the complainant would be without relief, but that his vendors were admitted to be utterly insolvent, and a judgment against them would be worthless,^ and a similar view has been taken in recent cases in Alabama.^ So, in a recent case in Georgia, it was held that an in- junction had been properly granted upon a bill setting forth that the complainant feared a loss of the land under prior incumbrances covered by his covenants, and that the vendor was a non-resident, and had no property within the State,* 1 Jones V. Waggoner, 7 J. J. Mar- the covenant for seizin, the vendor shall, (Ken.) 144. " If the appel- would have been without relief, as it lees," said the Court, " had a legal was said, " This (covenant) differs right to the damages for which re- from a covenant of warranty where lief is sought by them, the admitted there is no present right of action, insolvency of the appellant gave and can never be till eviction, which jurisdiction to the Chancellor, who, may never take place; and where, when he had possession of the case therefore, a court of chancery will by injunction, had a right to retain grant no relief against the payment it, and give full and final redress by of the consideration, on the joint decreeing a set-off and any other ground of a defect of title and the relief that was proper, and who for insolvency of the vendor." that purpose had a right to assess the 3 Walton v. Bonham, 24 Alabama, damages for a breach of the covenant 513; Wray v. Fui-niss, 27 Id. 471 • without the intervention of a jury, see also the remarks in CuUum v. the criterion being fixed by the con- The Branch Bank, 4 Id. 21, supra, tract and the law." p. 668. 2 Ingram v. Morgan, 4 Humphreys, ■* Clark v. Cleghorn, 6 Georgia, (Tenn.) 66. The Court, however, 225. In Vance v. House, 6 B. Mon- seemed to be of opinion, that but for roe, (Ken.) 540, it is said, " A bill TO DETAIN PURCHASE-MONEY, ETC. 693 and in a recent case in North Carolina, it was held that the complainant's bill could not be sustained, were the de- fendants within the jurisdiction of the courts of law of that State, for the reason that the law could give complete relief in an action of co.venant on the warranty contained in the deed of the defendants, but as they were non-residents, the Court would not permit the defendants to recover the pur- chase money for the land, the title to which was admitted to be defective, leaving to the plaintiff' the precarious remedy of suing in the courts of another State for the purpose of getting back the same by way of damages in an action for the breach of the covenant of warranty.^ But where there is no actual prosecution of the para- for the dissolution of the contract can- not be sustained, and tlie payment of the consideration enjoined, except in the case of fraud, insolvency, or non-residency of the vendor, and a palpable and threatening danger of immediate or ultimate loss, without legal remedy,' by reason of the de- fects in the title conveyed, and the inability of the vendee to protect himself against eviction under it. And to sustain such a bill after the vendee has accepted the conveyance, the onus lies on him to establish, to the satisfaction of the Chancellor, that the defect of title and imminent dan- ger of eviction and loss exist." See also the remarks in Woodruff y. Bunce, 9 Paige, (N. Y.) 444. In the recent case of Ingalls v. Morgan, 12 Barb. S. C. (N. Y.) 578, the purchaser filed a bill to restrain the holder of a paramount judgment from selling the land under it, on the ground that at the time of the pur- chase it had been agreed between the vendor and the judgment cred- itor, that the notes to be given for the purchase-money by the complain- ant, who was then ignorant of this judgment, should be applied by the vendor to its payment ; that the first note was so applied, but that the vendor afterwards became insolvent, and the judgment creditor, in knowl- edge of this fact, re-delivered the remaining notes to the vendor, who passed them to third persons, to whom their amount was paid by the com- plainant. The Court were clearly of the opinion that the arrangement referred to must be regarded as an application of the notes to the pay- ment of the judgment, in satisfaction and discharge of its lien upon the land ; that the purchaser therefore took the land freed from its lien, and that the re-transfer of the notes to the vendor, when he was known to be utterly unable to respond in dam- ages for a breach of the covenants in his deed, was an act of bad faith tow- ards the purchaser, and a perpetual injunction was therefore decreed. 1 Green v. Campbell, 2 Jones' Eq. (N. Car.) 446. 69ii THE purchaser's RIGHT mount title or incumbrance, it seems that the insolvency or non-residence of the vendor will not, when coupled with the mere existence of such title or incumbrance, give to the purchaser a right to equitable relief. Thus, in a late case in Mississippi,-^ where there was no eviction, actual or threatened, it was held, that under the repeated decisions in that State,^ under such a state of facts, the insolvency of the vendor could not alter the position of the purchaser. So in a recent case in South Carolina, where the purchaser, after having been ten years in possession, was advised by his counsel that there was an outstanding title in minor children, and filed a bill for a rescission of the contract, alleging the insolvency of his vendor ; upon the facts in the bill being admitted in the answer, the Court held that it was impossible to assimilate the case to a bill quia timet? So in a case in Kentucky,* it was held that if the insolvency of the vendor were to be a ground for equity to interfere, still a chancellor ought not to go further than to the extent to which a court of law would do in assessing damages for the part lost. If equity could interfere by reason of the insolvency of the warrantor to arrest the payment of the 1 Latliam v. Morgan, 1 Smedes & being unable to pay tlie damages at Marsh. Ch. 618. a future time, could not create such 2 The decisions referred to, how- an equity in favor of the plaintiff as ever, are not given. There are die- to bring his case Tvithin the principles ta to that effect in Vick v. Percy, 7 of a bill quia timet. Wherever the Smedes & Marsh. 268, and Wailes purchaser anticipated the insolvency V. Cooper, 24 Miss. 233. of his vendor, he might stipulate for 3 Maner v. Washington, 3 Strob- sureties to the warranty, but when hart's Eq. (S. Car.) 171. " The pur- he had taken possession of the land, chaser," said the Chancellor, " had paid the purchase-money, accepted a the legal enjoyment of the land, in deedof conveyance, and executed the which he might never be interrupt- contract, he could not call upon equi- ed ; but if that contingency should ty, except upon the ground of fraud, occur, he had a plain and adequate to rescind it, but must rely upon the remedy against the vendor for the covenants of his deed for redress." breach of his covenant, and the pos- * Rawlins v, Timberlake, 6 B. sibility or even probability of his Monroe, (Ken.) 232. TO DETAIN PURCHASE-MONEY, ETC. 695 purchase-money, or any part of it, it would be only by clear evidence of eviction or undoubted defect of title, so as to show the covenant of warranty broken,^ and by stop- ping payment of so much of the purchase-money as was equal to the damages incurred by the breach. So in the same State, it was held that the admitted insolvency of the vendor was no ground for an injunction where one of the paramount owners, all of whom were minors, declared his intention of suing for the part belonging to him.^ So, in a recent caSe in the Supreme Court of the United States, where a purchaser bought with a covenant of general war- ranty, and finding after the execution of his deed, that a complete chain of title could not be deduced, filed a bill for the rescission of the contract, on the ground of the defective title, and in a subsequent bill of revivor against the heirs of the vendor, alleged that he had died insolvent, the court below had rescinded the contract, but the Supreme Court were clearly of the opinion that unless the ground of insolvency alone was sufficient to sustain it, the decree of that court could not be upheld, and that it was not suf- ficient, the Court had no doubt.^ 1 It -will be of course remembered 1 Johns. Ch. 213, Abbott v. Allen, 2 that this covenant is only broken by Id. 219, Gouverneur v. Elmendorf, an eviction, or something equivalent 5 Id. 79, Simpson v. Hawkins, 1 to it ; supra, p. 241 et seq. And in Dana, 305, and James u. McKernon, Kentucky it seems to have been held, 6 Johns. 543, said that these cases in some cases, that a judgment of a showed " that a purchaser in the un- court of record in favor of the para- disturbed possession of the land will mount title, was sufficient to consti- not be relieved against the payment tute an eviction. Such a doctrine, of the purchase-money on the mere however, does not generally prevail, ground of defect of title, there being See supra, p. 236. no fraud or misrepresentation ; and 2 Wiley V. Fitzpatrick, 3 J. J. that in such a case he must seek his Marshall, 583. See this case, infra, remedy at law on the covenants in p. 699. Ws deed." 3 Patton V. Taylor et al. 7 Howard, In the late case, however, in Mis- 132. Mr. Justice Nelson, after cit- souri, of Jones v. Stanton, 11 Mis- ing the cases of Bumpus v. Platner, souri, 433, a purchaser filed a bill to 696 THE PURCHASER S RIGHT In cases, however, where all the parties to the title are before the Court — the vendor, the purchaser, and the para- mount claimant — and an equitable adjustment can there- fore be made of their mutual rights, the fact of insolvency or non-residence seems to have been admitted to be a material circumstance. Thus, where in a case in Ken- tucky,^ upon a bill praying rehef against a judgment^ for enjoin a judgment recovered by his vendor for a balance of purchase- money of certain land sold with stat- utory covenants for the title, alleging that the vendor's title extended to but one-half of the land, and that he ■was insolvent. It appeared by the proofs, that the defect of title was undoubted, and that the purchaser was still in possession, but the proof as to the vendor's solvency was some- what contradictory, and the Court held, that upon the whole, taking into consideration the admitted de- fect in the vendor's title, and the just doubt existing in relation to his abil- ity to pay his debts, they were war- ranted in requiring a stay of the col- lection of the debt, until the vendor should give a bond with security in- demnifying the purchaser against any loss he might sustain, in consequence of the defect of title. The facts in this case occurred before the passage of the Missouri statute, cited supra, p. 690. The strongest modern case upon the subject of insolvency creating a distinct equity, seems to be the Tus- cumbia Railroad Co. v. Rhodes, 8 Al- abama, 206, where many authorities are collected and examined. The complainant, being indebted to the company on an open account, the latter assigned it to a third party, who commenced suit and obtained judgment thereon. Pending the suit, the complainant paid for the com- pany a large debt as surety for a claim existing before the assignment, and filed a bill to set off the amount thus paid, against the amount of the judg- ment ; and it was held (reversing, after , a re-argument, their former opinion), that although independent- ly of the insolvency of the company, the complainant had no right of set- off whatever, either in law or equity, yet that the existence of that fact introduced new relations between them, whereby the complainant was entitled to retain the debt due by him, independent of the manner in which it was created, until the company either relieved him from or indem- nified him against his obligation. See also Hupp V. Hupp, 6 Grattan, (Va.) 310. 1 Morrison v. Beckwith, 4 B. Mon- roe, (Ken.) 78. 2 There were, in fact, two judg- ments, but as to one of them it was held that the complainant had barred his equity, by representations made by him at the time of the transfer of the security on which the judgment was founded. A similar decision was made in Jaques v. Esler, 3 Green's Ch. (N. J.) 461. ETC. 697 the purchase-money of land, sold with a general covenant of warranty, it appeared that a prior mortgage had heen given by a former owner of a large tract, of which this was part — that the greater part of the mortgage debt had been paid, and the mortgagor was willing to pay the balance, but the mortgagee refused to receive it till a certain suit had been determined — and the bill made both the mort- gagee and mortgagor parties, together with the vendor, who it appeared was insolvent, it was held, that although equity would not, in general, grant relief where a contract was executed, but would leave the purchaser to his action on the covenants, yet that in the case of the insolvency of the vendor, it was competent for a vendee to go into equity, without intending to rescind the contract, to procure the appropriation of the purchase-money to the removal of the incumbrance, and that upon this ground alone could the bill be held tenable.^ So, in a subsequent case, where a 1 The following portion of the (the holder of the judgment), will be opinion of the Court, will show the entitled to a dissolution of the in- manner in which, when all the junction; but if a part of this money parties are before the Court, their is necessary to remove the burden, respective rights can be mutually then the complainants^an be entitled adjusted. "As the complainants to relief as to such part only, not by h&ye. prima facie shown a ground for being discharged from the payment coming into a court of equity, the of it, but by directing its payment question remains, what relief is to for their security. JBy inspecting be granted ? Is a perpetual injunc- the mortgage, it will be seen that the tion the proper redress ? We con- estate mortgaged is a large one, and ceive not. If that is granted, the the price considerable, and all but a. complainants may forever keep the small sum is now paid. It is a well- estate and also this part of the pur- known principle that a mortgage- chase money. The proper redress binds every part of the land it covers, must be to awaken the mortgage and each spot is subject to its opera- from Cosby (the prior mortgagor), tion, and when it is made to bear on to Sarah Beard (the mortgagee), purchasers of different parcels from and to remove its etfects from the the mortgagor, they are bound to estate in controversy. If that can contribute only in proportion to the be done, without the application of value of the share, that each holds, the money in contest, then Churchill fixing that value at the date of the-. 59 698 THE PURCHASER S RIGHT purchaser filed his bill to enjoin a judgment given for the purchase-money of land sold with general warranty, on the mortgage ; Stevens v. Cooper, 2 Johns. Ch. Rep. 430. It is, also, a correct doctrine that as between these pur- chasers and the mortgagor, if he holds a proportion of the estate himself, such portion must first be subjected entire. If it discharges the demand, the purchasers are clear ; if it does not, then they must contribute proportionably to make up the resi- due. " Now it seems more than proba- ble, even if Cosby has sold the whole estate mortgaged by him, so that the balance due from him must fall on every part equally, that the propor- tion of that balance which will fall to the share of the complainants, will upt be nearly equal to the sum which they have in their hands, now claim- ed by Churchill. But if Cosby has not parted with the whole estate, but still retains a portion thereof, that portion may be more than equal to the discharge ^f the balance due on the mortgage ; and these facts must be ascertained before it can be clearly perceived what redress is to be given to the complainants. " The proper mode to ascertain this, is to direct an account to be taken by a commissioner, of the sums paid and balance due on the mort- gage, between Cosby and Mrs. Beard's representatives, showing the true balance ; also of the value of the whole estate mortgaged, at the date of the mortgage, and of the part sold by Morrison (the vendor), to the complainants, so that the proportion of the mortgage-money chargeable thereon may be clearly seen. By the same proceeding it must be ascer- tained whether Cosby has sold the whole of the estate mortgaged by him, and to whom, or whether he still retains a portion thereof, and of what value. By the same commis- sioner it may be ascertained whether Sarah Beard's representatives still refuse to receive the money from Cosby, or Cosby declines paying it. If he receive, and he shall pay or secure it, then there will be no fur- ther obstacle to the dissolution of the injunction. If the obstruction is not thus removed, and Cosby shall re- tain at this time a portion of the estate amply sufficient to discharge the balance due, and he will not otherwise indemnify the complain- ants, then he must be compelled to execute to the complainants a mort- gage on the estate so retained by him, defeasible on his paying the balance to Sarah Beard's represent- atives, and keeping them indemni- fied from that incumbrance, and in either of these events the injunction against Churchill must be dissolved. But if it shall be ascertained that Cosby has sold the whole of the estate mortgaged by him, then the proportion of the balance due, which is chargeable to the estate now in contest, must be decreed to Sarah Beard's representatives, and the in- junction of the complainants must be dissolved as to the residue. It naight be equitable to decree the amount for which the injunction shall be perpetuated in this event, in favor of Churchill against Cosby, as he would be entitled to stand by substitution TO DETAIN PURCHASE-MONEY, ETC. 699 ground that by a prior partition, the more valuable portion of the land had been conveyed to one whose heirs he made co-defendants with the vendor, who it was admitted was insolvent, and the Court below granted an injunction, the decree was reversed by the Court of Appeals, on the express ground that no decree had been prayed for against those heirs, and that all of them had not been served with process.^ So, in a later case, it was held, after much consid- eration, that where the vendor was alleged to be insolvent, and there were just grounds for fearing an eviction,, the Chancellor might interpose and suspend the payment of the purchase-money, although the contract had been executed by a conveyance. But the Court regarded it as indispen- sable, that if there had been no eviction, all the parties interested should be brought before the Court, -which could then settle their respective rights ; and for want of this precaution, the decree of the Court below, enjoining the judgment given for the purchase-money, was reversed.^ in the place of a purchaser from But the contract should, as to that Cosby. But this cannot be granted part, be rescinded, if the vendor had to him in this suit, as he has not conveyed no title to it, as it would interpleaded with Cosby, or shaped be unjust to permit the purchaser to his defence in such a manner as to hold the deed for it, and yet have entitle him to decree against his co- the injunction for the price of that defendants. His claim in this respect part perpetuated, and leave was giv- must, therefore, be left to some fu- en to the complainant to amend his ture mode of redress.'' bill if he thought proper, so as to 1 Wiley V. Fitzpatriek, 3 J. J. bring all the proper parties before Marshall, (Ken.) 582. The Court the Court. held that had the complainant ^ Simpson v. Hawkins, 1 Dana, brought the proper parties before the (Ken.) 303. The complainants had Court, and by a prayer in his bill leave granted to amend their bill, as 'compelled these heirs either to insist in the case last cited. The following upon and exhibit their title to the language was held by Underwood, J., part in question, or yield it to him, as to the complainant's equity to the decree of the Court below would rescind the contract. " Regarding have been correct, unless it should the protection which time had thrown appear that their title was invalid, round the vendors, perceiving no 700 THE PURCHASER S RIGHT The principle of these cases is one of general application, and has been elsewhere recoernized.i Having- thus attempted to examine the grounds upon which equitable jurisdiction has been exercised over the rights of vendors and purchasers after their contract has been executed, there remain to be considered the principles which, from an early period of the judicial history of the States of South Carolina and Pennsylvania, have been there recognized and applied. In South Carolina, her courts of equity have adopted the same principles as respects this subject which have been actual fraud on their part witli the purchasers, and seeing that the con- tract has been fully executed by a formal conveyance with warranty of title against all the world, which warranty has not been broken by an eviction from the premises, and for aught that appears to us, never will be, we cannot concur with the Cir- cuit Court in a total rescission of the contract. Indeed, where contracts are executed by conveyances, we are of opinion that there can be no rescission of a contract in any case, unless it has been tainted by actual fraud. If the warranty of title has been broken, so as to entitle the vendee to damages, or if the vendee be entitled to damages upon a cove- nant of seizin, he may apply to the Chancellor, where the vendee is in- solvent, to set off those damages against the unpaid portion of the purchase-money. The ground upon which the Chancellor interferes in such eases, is the prevention of the irreparable mischief which otherwise might result from the insolvency. He ought not to act upon the prin- ciple of rescinding the contract. On the contrary, he should affirm the contract, and secure to the party such damages as he might be entitled to, for a partial or total violation thereof by the obligor. If a deed of conveyance be executed, for any quantity of land, and the vendee is put into possession thereafter, in case he loses half or three fourths of the land, the law only authorizes a recov- ery, upon the warranty, of damages commensurate with the loss. The Chancellor must follow the law, and not lay hold of such a partial loss, and require the vendor to take back the portion of the land saved, and return the purchase-money for that, under the idea of rescinding con- tracts." I Davis V. Logan, 5 B. Monroe, (Ken.) 341; Denny v. Wicklifie, 1 Metcalfe, (Ken.) 22G ; Shannon v. Marselis, Saxton, (IST. J.) 413 ; At- wood V. Vincent, 17 Connect. 575. TO DETAIN PURCHASE-MONEY, ETC. 7^1 enforced elsewhere/ but in the common-law courts, the rights of the purchaser were for a long period protected, upon what was thought to be equitable principles, at the expense of the vendor. Since the case of Furman v. Elmore,^ it became the settled law of South Carolina, that a covenant of warranty possessed also the properties of a covenant for seizin, and an eviction was not, therefore, considered to be necessary to its breach. Hence it was 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 fiad a verdict for the de- fendant, not on the ground that the failure of title was a rescission of the contract, but because the damages on the covenants were exactly equal to the purchase-money and interest ; ^ and it followed that when a portion of the land was covered by a paramount title, which might, and in the opinion of the jury would, so far deprive the party of the benefit of his purchase, the damages could be assessed pro tanto ;^ and such is still the law at the present day. But there was another class of cases, which, beginning with Gray v. Handkinson, in 179^,^ established the doctrine that where the object of the purchase was defeated, either by a failure of part of the title, or of some incident to the pur- chase, the purchaser could be relieved at law by a rescis- sion of the contract, although he might be still in posses- sion. Such a doctrine, which, it was held, was a sort of 1 Whitworth v. Stuckey, 1 Rich. 3 Farrow v. Maya, 1 Nott & Mc- Eq. 407; Van Lew v. Parr, 2 Id. Cord, 312 ; Hunter u. Graham, 1 Hill, 337 ; Maner v. Washington, 3 Strob- 370 ; see Van Lew v. Parr, 2 Rich, hart's Eq. 171; Kibler v. Cureton, Eq. 349, cited m/ra, p. 702. Richardson's Eq. Cases, 143 ; Gillam ^ Farrow v. Mays, Furman v. El- u. Briggs, Id. 432. more, Van Lew v. Parr, Jeter v. 2 Reported in a note to Mackey Glenn, 9 Rich. Law, 378, supra. V. Collins, 2 Nott & McCord, 189. 5 i Bay, 278. 59* 702 THE PURCHASER S RIGHT equitable defence, cognizable as well at law as in equity on the ground of fraud, continued to prevail until the year 1829, when the Courts began to retrace their steps, and by a series of decisions^ established the position that if the purchaser had not been evicted, the contract would not be rescinded in a court of law, principally on the ground that such a court has not the power to do full and adequate jus- tice to the parties ; and the result of the cases is said at the present day to be, " that in actions brought for the pur- chase money, the purchaser may make a clear subsisting outstandina- title the ground of abatement for the contract value of such part of the premises as it may cover." ^ Such a proposition must, it is apprehended, be understood only as applying to cases in which there are covenants which include the- adverse title.^ 1 Carter v. Carter, 1 Bailey, 217; Bordeaux v. Cave, Id. 250 ; West- brook V. McMillan, Id. 259 ; Johnson V. Purvis, 1 Hill, 326, where it was said that the case of Gray v. Hand- kinson was an interpretation un- known to the common law. ^ Per Johnson, Ch., in the recent case of Van Lew v. Parr, 2 Rich. Eq. 241. In the late case of Hodges V. Connor, 1 Spears, 120, where it appeared that the purchaser, who was sued .for his purchase-money, had received from his vendor a good equitable title, and had the means of compelling the conveyance of the legal estate, it was held that there was no defence to the plaintiff's claim. 3 Thus, in Evans v. Dendy, 2 Spears, 10, and Rogers o. Horn, 6 Rich. Eq. 362, such a defence was refused, because, in case of a sale by an ordinary or a commissioner in equity, no warranty of the title could be exacted. The current of authority in South Carolina having been fully explained in a recent case (Van Lew v. Parr, 2 Rich. Eq. 347,) by O'Neall, J. I have, of course, preferred his state- ment of the result of the cases to any which would' otherwise have been attempted. " My present pur- pose," said the learned Judge, in de- livering his opinion in that case, " is more to explain the various cases decided in the courts of law on the question how far an outstanding title can be set up as a defence at law, than for anything else. " The de- fence at law, before eviction, pro- ceeds upon the ground that the cov- enant of seizin is broken by a want of title in the seller, and damages for this bi'each are allowed, as a dis- count. In the case of Mackey v. Collins, 2 Nott & McCord, 186, it TO DETAIN PURCHASE-MONEY, ETC. 703 The doctrines which, from an early day, have prevailed in the State of Pennsylvania, with respect to the right of was held, that the warranty, in our deeds, drawn according to the act of 1795 (see this statute referred to, supra, p. 542,) is both a covenant of seizin and for quiet enjoyment, and that an action might be brought before the eviction, on showing an existing paramount title in another. This was in conformity to the pre- viously adjudged and well-consid- ered case of Turman v. Elmore, then unpublished, and apparently un- known to the bench or bar, but which was most fortunately brought to light and published in a note to Mackey t'. Collins, 2 Nott & McCord, 189. The same principle was af- firmed in Biggus v. Bradly, 1 McCord, 500, with this qualification, that a purchaser in possession should not be allowed to purchase an outstanding title, and sue for a breach of the covenant of seizin. In that case, and many others, there is a good deal said about an implied warranty arising from a full price, in the sale of lands, as well as in the sale of chattels ; but it is manifest such a doctrine has no foundation in law, and was not necessary for the de- cision of the cases at law, when they rested on the covenant of seizin in the deed. The principle ruled in Mackey v. Collins was reaffirmed in Johnson v. Veal, 3 McCord, 449. But in that case, another very im- portant principle, and safeguard to the application of the doctrine, was settled and fixed, — that as the ac- tion lay for a breach of the covenant of seizin, before eviction, by showing that the grantor had not title at the execution of his deed, the statute of limitations began to run from the execution of the deed, and that in such a case, four years would bar his remedy by action of covenant. " At law there formerly were three classes of cases, in which a purchaser could be relieved, in part or in whole, from the payment of the purchase- money. 1st. Where there was a par- tial failure of consideration, as where part of the land sold and conveyed was covered by a paramount title, which might, and in the opinion of the jury would, so far deprive the party of the benefit of his purchase. This is essentially matter of discount, and, as is decided in Farrow v. Mays, 1 Nott & McCord, 312, can be given in evidence only under a notice of discount filed, and served on the opposite party. In such case the measure of damages to be allowed to the party on his covenant of seizin, is the pro rata value of the land covered by the paramount title, esti- mated by the purchase-money and interest, and the relative value of the land thus taken off in the pur- chase, to the land remaining. Fur- man V. Elmore, 2 Nott & McCord, 199 to 204. The 2d class is where the grantor when he sold, had, or at the trial has, no title to the land. In such case, the vendee, having acquired no title, has. of course no consideration for his promise, and hence if the action be on a parol contract, it may be regarded as a nudum pactum, and the vendee thus relieved at law. In such a case, as is said in Farrow v. Mays, the de- 704< THE PURCHASER S RIGHT the purchaser to detain the purchase-money after the execu- tion of his deed, by reason of an incumbrance or defect of fence may be given in evidence under the general issue. But in an action on a specialty, as is explained in Hunter u. Graham, 1 Hill, 370, before the act of 1831, the failure of consideration must have been spe- cially pleaded, or set up by way of discount. The act merely lets the party into his defence under a notice instead of a plea. In a suit on a specialty, therefore, it would seem the more prudent course for a de- fendant (and the most consistent with legal rules,) to regard his cove- nant of seizin as broken to the whole extent of his purchase-money and interest, and to claim damages ac- cordingly by way of discount. In such a case, if the jury should be satisfied, that in fact as well as in law the purchaser took nothing by his title, and that he will be ousted by the paramount title, they may find a verdict for the defendant, not on the ground that the failure of title is a rescission of the contract, but that the damages, on the covenant of seizin, are exactly equal to the pur- chase money and interest. In such a case there is no necessity for an appeal to equity to put the parties in statu quo. For the vendor's deed conveys no title to the vendee. Neither can the vendor claim an account for rents and profits. For his vendee is liable to the owner of the paramount title for the rent of the land during the time he may be in possession. Taylor v. Fulmore, 1 Rich. 52. Both of these classes of cases have always been, and still are, regarded as constituting legal defences examinable and relievable in a law court. The third class of cases, where there was a good title in part and in whole conveyed by the vendor to the vendee, and the object of the vendee's purchase was defeated, either by a part failure of the title, or the failure of some inci- dent to the purchase, represented by the vendor, or shown by the title, as resulting from the purchase, the purchaser formerly was held to be relievable at law, although he might be in possession, hy a rescission of the contract. The case of Gray v. Hand- kinson, 1 Bay, 278, which seems to have been the beginning of this doc- trine, held that a mill-seat was the principal inducement to the pur- chase, and that being taken away by an older title, entitled the vendee to a rescission of the contract. In that case the Judges speak of the defence as a kind of equitable one, which was allowed now in a court of law as well as in equity, on the ground of fraud. So far as fraud is concerned, I have no doubt the de- fence is good anywliere. But there is no fraud, where both vendor and vendee are alike ignorant of the defect : and that was the case in Gray V. Handkinson. In a note to that case, the rule of the decision is ascrib- ed to the doctrine that a sound price warrants a s.ound commodity. It was followed by the case of The State V. Gaillard, 2 Bay, 11. In that case, the defence rested upon the ground, that when the land was sold, a plat was presented, which represented a fine copious stream of water running TO DETAIN PURCHASE-MONEY, ETC. 705 title, are believed to be peculiar to that State, though as respects his right to recover lack what has been already nearly througli the centre of the tract, with a mill-seat upon it; and that these advantages were the prin- cipal inducements to the purchase: that they had failed, inasmuch as- the supposed stream was a dry gully three fourths of the year. In that case, the doctrine that a sound price warrants a sound commodity, was applied to land as well as to person- alty, and that by the general terms of our discount law, a defence pre- dicated of it could be set up. In that case, the verdict of the jury rescinded the contract, notwithstand- ing the contract was executed both by the execution of deeds and the delivery of possession to the vendee. It is possible that that case might stand upon the fraud resulting from the misrepresentation at the sale, without resorting to the wild doc- trine, that there was an implied war- ranty from the price paid, in addi- tion to the legal covenants of seizin and quiet enjoyment. These two cases were followed by many others, where from misrepresentation, or a failure of consideration, in part, which defeated the purchaser's object, in making the purchase, the contract was rescinded. The extravagant re- sults to which we were conducted, may be illustrated by the case of the Commissioner in Equity v. Robert R. Pearson et al. In that case the land had been sold under a decree in equity in the case of Delilah Per- ry, by her committee, v. The Exec- utors of Aaron Cotes, dec'd, and purchased by the defendant, Pear- son, at a great price. He received titles, — was in possession for years. He made several payments on his bond. At last, when sued, he suc- ceeded in showing that there was an outstanding title to an undivided share, of about one eighth of the land, in persons who were not par- ties to the case under the decree in which the land had been sold. The constitutional court, against the find- ing of a jury, allowed the defence ; and the vendee was permitted to re- scind the contract. At length, how- ever, the Court awoke to the mis- chievous consequences of allowing such defences, and in the cases of Carter v. Carter, 1 Bailey, 217, Bor- deaux V. Cave, Id. 250, and West- brook V. M'Millan, Id. 259, under- took to retrace their steps. In those cases, they declared that where the contract of sale was executed by the delivery of titles and possession to the purchaser, and he had not been evicted, that for a failure of title to part of his purchase, although it might defeat its object, (lie contract would not be rescinded in a court of law ; and that the party must seek relief in a court of equity. The rea- sons assigned, that a court of law could not restore the parties to their original condition by compelling the vendee to convey the title, which, as far as the vendor had title, conveyed a good legal estate to him, and to account for rents and profits to the extent of the vendor's title, were cer- tainly true, and showed tiiat in such a case a rescission at law could not take place. The rule of these cases was admirably explained by the only 706 THE PURCHASER S RIGHT paid, the law that has been referred to as prevailing elsewhere^ is there fully recognized and enforced. In early cases in that State,^ the maxim of caveat emptor, in the sale of real estate, was adverted to ; and in Dor- sey V. Jackman,^ the plaintitF, on paying his purchase- money, took from the defendant, his vendor, a mere assign- ment of a commissioner's deed under a tax sale, and, on discovering that it conveyed no title, brought suit to recover the amount of the purchase-money,* and, under the charge of the Court below, obtained a verdict. The judgment was, however, reversed by the Supreme Court, on the ground that there being no implied warranty in the sale of real estate, a purchaser who had neglected to protect himself by proper covenants, could not, in an action for money had and received, recover what he had already paid ; and this rule, which is in accordance with all the decisions elsewhere, has surviving member" of tbe excellent court which pronounced the decis- ions in Carter u. Carter, Bordeaux V. Cave and Westbrook v. M'MiUan, in the case of Johnson v. Purvis, 1 Hill, 326. In that case, Johnston, J., said : ' The first ground of this motion is founded on a misconception of the cases of Carter v. Carter, 1 Bailey, 217, Bordeaux v. Cave, Id. 250, and Hext v. Morgan, decided in 1829, and from what has occasion- ally fallen from the bar in reference to these cases, I am led to conclude, that the impression is not unusual that want of title in the vendor of land, either in whole or in part, is not a good defence to an action brought at law to recover the pur- chase money. Bui these cases incul- cate no such rule ; they maintain, however, that a court of law cannot rescind a contract for the sale of land, on account of a partial failure of con- sideration, on the ground, principally, that a court of law has not the full power to do full and adequate justice to the parties' When these observa- tions are understood as applying to an executed contract accompanied by possession of the land, they give a perfect exposition of the rule as settled by the Court of Appeals in 1829, and ever since inflexibly maintained by the law court." See also the cases noticed in Means v. Brickell, 2 Hill, 143, and Abercrom- bie V. Owings, 2 Rich. 127. 1 See supra, p. 614. 2 Boyd u. Bopst, 2 Dallas, 91 ; Caines' Lessee v. Henderson, 2 Bin- ney, 108. 3 1 Serg. & Eawle, 42. ■* The plaintiff having found out the true owner, purchased the title of him, but this in the case of a deed without covenants, is an immaterial point; see infra, p. 716. TO DETAIN PURCHASE-MONEY, ETC. 707 been consistently adhered to.^ In delivering their opinions, however, two of the learned members of the court^ adverted to a distinction that might exist as to the purchaser's right under such circumstances, to detain so much of the pur- chase money as should remain unpaid, but a definite expres- sion of opinion on this point was, it was said, reserved until the determination of a case that had already been argued. That case was Steinhauer v. Witman,^ decided in 1815 — the leading authority in Pennsylvania upon the point of deten- tion of the purchase-money. The defendant's intestate having received a deed with a covenant of warranty limited to the acts of the vendor, gave a mortgage for the purchase-money, and in an action on this mortgage, evidence was admitted by the Court to prove that the purchaser had been evicted from part of the mortgaged premises, under a title para- mount to that of the plaintiff', and of course not covered by his covenants. The admission of this evidence was assigned for error by the plaintiff", on whose behalf it Avas urged in the Supreme Court, that to make him liable beyond the extent of his covenants, would be to confound all distinction between limited and unlimited covenants, and be a violation of the agreement of the parties ;* and Tilghman, Ch. J., in delivering the opinion of the Court, admitted that this argu- ment was not wanting in plausibility and even in strength, and that if the question were entirely a new one, it would be difficult to give it a satisfactory answer. " But," he con- tinued, " principles have been established, which are adverse to the plaintiff's reasoning and must be considered as the 1 Light}' V. Shorb, 3 Penn. R. 447 ; ^ Tilghman, Ch. J., and Yeates, J. Kerr t-. Kitchen, 7 Barr, 486. It 3 1 Serg. & Rawle, 438. may be proper to repeat, that even 4 Sugdeu on Vendors, 313, and where there are covenants, the pur- Bree v. Holbeck, Douglas, 654, supra, chaser's rights must be asserted in an p. 614, were the authorities relied on action of covenant, and not in an ac- for the plaintiff, tion of assumpsit. See supra, p. 640. 708 THE purchaser's RIGHT law of the land. The plaintiff does not deny that the matter offered by the defendant would have been a good defence, if the contract had rested on articles by which the plaintiff had agreed to convey, and the defendant had covenanted to pay the purchase-money : and yet if these articles had only bound the plaintiff to convey with covenant of special war- ranty, it would have been as much against the spirit of the contract, to make him responsible for an eviction under a title paramount, as it is now, after he has conveyed with a covenant of special warranty. A distinction has been estab- lished between purchasers who have paid, and who have not paid, the purchase-money. Those who have paid, have no relief, but those who have not paid, are relieved, in case of an eviction or manifest failure of title. There is a dictum to this purpose by Lord Commissioner Rawlinson,-^ and the point was directly decided in an anonymous case, 2 Cases in Chancery, 19.^ The case of Tourville v. Nash,^ is also worthy of consideration, although not directly in point. There the purchaser paid part of the money, and gave bond for the residue. After giving bond, and before payment, he received notice of an equitable lien on the land which he had purchased, and it was held that he should be subject to the lien, although he contended that the notice came too 1 The dictum thus referred to is in money in his hands, that this Court an anonymous case in 2 Freeman, would have helped him, but not after 106. A bill filed to relieve a pur- he had paid his money." chaser, on the ground of a fraudulent 2 This case (which has been al- representation of value, was dismissed ready cited at length, su/ira, p. 615, because of his laches, " and a case has always been deemed as of doubt- was cited by the Lord Keck. A pur- ful authenticity and authority, and chaser brought his bill to be relieved even in Pennsylvania has been said where incumbrances were concealed, to be " not worthy of a moment's but was dismissed, for he ought to consideration ; " Lighty v. Shorb, 3 have provided against it by covenant; Penn. R. 451. but it was said by Rawlinson, that if 83 Peere Williams, 307. the purchaser had in that case had TO DETAIN PURCHASE-MONEY, ETC. 709 late, because he had no defence against the bond. But the Lord Chancellor answered, that though there was no defence at law, yet equity would, in such a case, stop payment of the money due on the bond.'^ I have reason to believe, that the Courts of this State have been governed by the princi- ples of the case in 2 Cases in Chancery, 19, so that to set up a different rule now would create confusion."^ The judgment was therefore affirmed. It is familiar that the absence of a court of equity in Pennsylvania gave rise to the practice of exercising equita- ble jurisdiction through the medium of common-law forms. ^ Such a practice would fully account for the application, in Steinhauer v. Witman, of such equitable principles as regulated the rights of the parties to contracts when exe- cuted, but it would not account for the application, in that case, of such equitable principles as govern executory con- 1 It must, however, be observed of this case of Tourville v. Nash, that the contract was not executed, but executory. If it had been executed by a coaveyance containing no cove- nant which included the lien in ques- tion, equity could not have reheved the purchaser ; see supra, p. 614. 2 Mr. Justice Yeates, io delivering his opinion said : " During the argii- ment, I expressed my ideas fully of the general practice and usage which had uniformly prevailed in Pennsyl- vania on this subject, both before and since the American Revolution. I asserted the general understanding to have been that in all cases, unless where it plainly appeared that the purchaser agreed to run the risk of the title (either by special contract, or where it might fairly be inferred, from the consideration-money being highly inadequate to the value of the premises at the time of the contract), 60 he might defend himself in a suit for the consideration-money, by showing that the title was defective, either in the whole or in part, whether there was a covenant of general warranty, or other engagement on the part of the vendor, that he had a good title, or a right to convey, or of quiet en- joyment by the vendee, or the like covenants, or not; and that, as to this point, it had never been deemed of the least moment, whether the vendor has executed a deed for the premises or not. ... In my sense of the Penn- sylvania system of law, there is a locus penitentice until the money is paid." 3 For a sketch of the system which' there prevailed, the student is refer- red to Mr. Laussat's brief Treatise' on Equity in Pennsylvania, which,, although written before he was admit- ted to the bar, has been always justly regarded as not less remarkable for- its accuracy than its elegance. 710 THE purchaser's RIGHT tracts. The difference between these two principles has already been referred to as a broad one :^ before the con- summation of the contract, the criterion of which event is the execution of the deed, the right of the purchaser to a title clear of defects and incumbrances, is an undoubted one ; after that time, his rights are regulated, both at law and in equity, solely by the covenants he has received. The effect, therefore, of the doctrine of Steinhauer v. Witman, was, as will have been perceived, to blend these sets of principles together, and when taken in connection with the previous case of Dorsey v. Jackman, to give to a purchaser greater rights as a defendant, than he could have as a plaintiff. In the case of Hart v. Porter's Executors,^ which followed in the year 1819, Tilghman, Ch. J., in referring to the decision in Steinhauer v. Witman said: " As the opinion of the Court in that case was unanimous, the law must be considered as settled. I will freely confess that it was not without considerable reluctance I agreed to the principle established in that case, nor did I make up my mind, until I had taken pains to ascertain what had been the under- standing and practice in this State, for a great length of time. Being at length satisfied that the prevailing opinion among lawyers, judges, and men of business had been that until payment of the purchase-money, the vendee might avail himself of a defence founded on defect of title, even where he had accepted of a conveyance with special war- ranty only, I thought it incumbent on me not to oppose a principle in which there was nothing contrary to equity. Indeed the objections to this principle are not founded so much on equity, as on policy and convenience. For where one party intended to convey, and the other expected to receive a good title, it is but equity that the purchaser should have relief in case of any defect of title, although 1 See swpm, p. 611. 2 5 Serg. & Rawle, 201. TO DETAIN PURCHASE-MONEY, ETC. 711 there was no express agreement to that purpose. Where the intent was that the purchaser should run the risk of title, there is not a word to be said for him. And such intent may be fairly inferred, where he knew of the defect at the time of purchase, and made no provision against it in his agreement."' ^ ' In HartM. Porter's Executors, the plaintiffs having brought suit in the court below, on three notes given for the purchase-money of land sold to the defendant with special warranty, the latter proved an outstanding title of dower in the wife of a former owner, to rebut which the plaintifi's offered in evidence a release from her hus- band and herself, subsequent to the commencement of the suit ; which the Court, under objection, admitted, and then charged the jury, that as there had been no previous agreement to convey the land free from incum- brances — as the incumbrance exist- ed at the time of the purchase made by the defendant — as he had a full opportunity of making himself ac- quainted with the circumstances of the title, and accepted a conveyance without general warranty, he could not then avail himself of any defect of title, as a defence to the action, and was answerable for the whole of the purchase-money. Upon writ of error to the Supreme Court, it was there held that the evidence had been properly admitted, but the judg- ment was reversed, upon the ground of the charge. " It does not clearly appear to us," it was said, " why this charge was given, if the release of dower given in evidence by the plain- tiffs was feffectual. Perhaps, there were other incumbrances not appear- ing on the record. At all events, it might mislead the jury, if it was er- roneous, and we ought not to suppose that it was given without object or meaning. We are bound, therefore, to consider whether it be erroneous." After using the language quoted in the text, the learned Chief Justice continued : " I hold myself bound, therefore, by the decision in Stein- hauer v. Witman, from which the case' now before us differs in nothing but the circumstance of there having been no eviction by the party who had the right of dower. But here again, I consider the practice in the courts of this State as firmly established. We have no chancery. Matters of law and equity, must, therefore, be de- cided in the same court, and on the same trial. What is to be done in a case like the present ? The out- standing title of dower is notorious, although no suit has been brought on it. What can the defendant do ? He has no means of compelling a suit ; must he then pay his whole purchase- money to-day, without a possibility of having it refunded, when he can make it appear that he is liable to be turned out of one third of his pos- session to-morrow V Is there either reason, justice, or equity, in such a proceeding ? I know that this mat- ter is not without difEculty ; because there may be other cases, in which it may be uncertain, whether an evic- tion will ever take place, although 712 THE PURCHASER S RIGHT The principle announced in Steinhauer v. Witman has been qualified and explained in many subsequent cases,i and the title be defective. But it is bet- ter to encounter difficulties, and en- deavor to do equity as well as we can in each case, than adopt a sweep- ing principle, which may put it out of our power to do it in any case. The circumstances of every country must be considered by its courts of justice. What is good for one, may be ruinous for another. In this State, land may be considered almost as an article of commerce. Rapid trans- fers are made, and great quantities are held by persons who never saw their possessions. Titles, which by inspection of papers, appear perfectly good, may be defective in conse- quence of circumstances attending the original survey, which can only be known by going on the ground. Purchases are made of unsettled lands, with a view of selling again to profit. In the course of this business, many suits are brought for the recov- ery of purchase-money, and discov- eries are made from time to time of defect of title, although no eviction has taken place. Under such cir- cumstances, to adopt it as a principle, that there shall be no relief because there has been no eviction, would be doing incalculable mischief. I am confident that the general sense and feeling of the country is against it ; and although the very point may not have been solemnly decided by this court, yet in practice, a defence founded on defect of title, without eviction, has been often admitted without opposition. AVhen another state of things shall take place ; when the lands now lying in a state of na- ture shall be cultivated, it may be necessary to alter the law, and it is always in the power of the legislature to do it. Considering then that it was decided in the case of Steinhauer V. Witman, that a purchaser not hav- ing paid his money may defend him- self under a defect of title, where part of his purchase has been evict- ed, although he has accepted a con- veyance with no more than special warranty, and considering that where there has been no eviction, it would be against equity to compel payment of the whole purchase-money, for a defective title, I am of opinion that the charge of the Court of Common Pleas was erroneous. The judgment, therefore, should be reversed. It is to be understood that this opinion is confined to the case of a purchaser who has no covenants on which he can have recourse to the seller. Where such covenants exist, it is not meant now to say at what time, or in what manner the purchaser is to have his remedy on them." It is difficult to perceive why the judgment was reversed in this case, since, by the evidence, which the Supreme Court held to have been properly admitted, it appeared that at the time of the trial, the only out- standing title which was relied on by the defendant had been extinguished, and for anything that appeared upon the record, a second trial must, there- fore, have resulted similarly to the first. This case should be read in connection with Ludwick v. Hunt- zinger, infra, pp. 717, 724. 1 Thus, in Friedly v. Scheetz, 9 TO DETAIN PURCHASE-MONEY, ETC. 713 their result may be stated in general terms, to be, that in Pennsylvania, a purchaser may defend himself from pay- Serg. & Kawle, 161, where (as also in Auwerter v. Mathiot, Id. 403, and Wiedler v. Farmer's Bank of Lancas- ter, 11 Id. 134,) the doctrine was held not to apply to purchasers at a sher- iff's sale, Mr. Justice Duncan said : " Steinhauer v, Witman is not well understood. It does not go to the wild length, as some have supposed, that a man who purchases a title with all its defects and imperfections, and whose conveyance contains no cove- nants of warranty, is not bound to pay the bonds he has given for it. For BIr. Justice Yeates, the great advocate for the departure from the general rule, both of law and equity, of caveat emptor in the sale of lands, yet restrains its operations, for he puts it on a very rational principle. The obvious and plain rule he says, is what was the true meaning of the contracting parties ; was it contem- plated mutually, that the purchaser should hold the land under a good title, or that he should run his chance of getting a title, and be exposed to all hazards." So, too, in the case of a sale by authority of the Orphans' Court, the rule of caveat emptor is held to ap- ply. "I do not understand that the plaintiff denies the general principle,'' said Rogers, J., in delivering the opin- ion in Bashore v. Whisler, 3 Watts, 493, " as applicable to a sale by a sheriff, but he argues that there is a difference between a sale by an ad- ministrator, and a sheriff's sale ; be- tween creditors, and the defendant in an execution, and the heirs of an intestate. The law ' recognizes no 60* such distinction. The reasons on which the Court proceeded, in a sher- iff's sale, are fully stated in Friedly V. Scheetz, and are as applicable to the defendant in the execution, as to the creditors. It would be manifestly unjust, as is there said, to release the purchaser from his bid, on account of a defective title, the very cloud which obscured its value, and not to relieve the defendant in the execution, when he was able to dissipate that cloud which sacrificed his property. The duties of both are plain. The pur- chaser must examine the title before he buys, and it is the interest of the defendant, as far as he can, to clear up any objections which may be made as to its validity. If the purchaser will not inquire, he must suffer for his con- fidence ; and if the defendant in the execution will be silent, and not show his title, he must suffer for his ob- stinacy. When the sale is a fair one, it binds both the defendant and the purchaser. But it is said, that a sale by the administrator is not a judicial sale. But we conceive that a sale by an administrator, under an order of the Orphans' Court for payment of debt, is a judicial sale ; and that the principles which govern the one are applicable to the other. As in the case of a sheriff's sale, the purchaser takes only the interest of the heirs ; the administrator who makes the sale is but the officer of the court. The land is sold in pursuance of their order ; it must be returned to them and receive their confirmation before the title is vested in the purchaser. The administrator makes no war- 71-^ THE purchaser's RIGHT ment of the purchase-money, hy reason of a clear outstand- ing defect or incumbrance, unless the intention was that he was to run the risk of it. Such an intention may be either shown by direct evidence, or be implied by circumstances ; of which the most material are, in general, notice on the part of the purchaser, combined with the absence or pres- ence of covenants which include the defect or incumbrance. The cases seem to be susceptible of division into three classes. First. Where the defect or incumbrance is unknown. Second. Where there is a known defect or incumbrance, and no covenant. Third, Where there is a covenant against a known defect or incumbrance. First. Where the defect or incumbrance is unknown to the purchaser, it is of course impossible that he could have intended or expected to run the risk of it, and hence, under this head, two questions arise : first, what defects or in- cumbrances will entitle the purchaser to detain the pur- chase money ; and secondly, what will be deemed an ab- sence of notice on his part. With respect to the character of the defect or incum- brance,^ although it is generally said that the contract is still ranty of title, either for himself per- greatest practical evil of the doctrine sonally or the heirs ; and it is under- (of Steinhauer v. Witman) is that it stood that the one sells, and the other subjects the contract to the control of buys the title as it is, and as it was a jury, prone to forget that to cut a vested in the intestate." The same man loose from his bargain from mo- principle was also enforced in the tives of humanity, is the rankest in- subsequent cases of Fox v. Mensch, justice ; and from this, it would seem 3 Watts & Serg. 446, King v. Gun- sound policy to extend it no further nison, 4 Barr, 171, and Kennedy's than it has been already carried;" Appeal, Id. 149, 153. Eighty v. Shorb, 3 Penn. R. 451. But it has been well said by the i It is scarcely necessary to say late Chief Justice Gibson, that " the that the character of the defect or TO DETAIN PURCHASE-MONEY, ETC. 715 executory as to the unpaid purchase-money, yet this expres- sion must not be understood to mean that a purchaser will, after the execution of his deed, have a right to detain the purchase-money in every case in which equity would refuse to decree a specific performance by him. While on the one hand, it is not necessary that an eviction should have taken place,^ or the incumbrance have been paid off by the pur- incumbrance must be lawful, as distinguished from a tortious inter- ruption, supra, p. 165; Spear v. Allison, 8 Harris, (20 Penn. State K.) 200. 1 Carnahan v. Hall, Addison, 127; Gouoher v. Helmbold, 1 Miles, 407; Hart V. Porter, 5 Serg. & Eawle, 201;-Share v. Anderson, 7 Id. 61. " The effect of incumbrances," it was said in the latter case, " as showing failure of consideration, or a defect in the title, is certainly different , in Pennsylvania from what it is in Eng- land ; there, an eviction at law is an indispensable ingredient of a claim for relief against payment of the pur- chase money. Here, it is sufficient that eviction may take place," and this was repeated in the recent case of Beaupland v. McKeen, 4 Casey, (28 Penn. State R.) 130, but it was added with great correctness by Woodward, J., who delivered the opinion, " This is a very delicate ground on which to administer jus- tice to vendors and vendees, for in determining the possibility of an eviction we have not before us the paramount claimant on whose will and rights the liability to eviction depends. Possibly he has no rights, as would appear the moment he attempted to assert them — or if he have rights it is possible he may never attempt to assert them — and in either case it would be against conscience and equity to allow the purchaser to keep the land, on which so unsubstantial a cloud rests, and the price also which he agreed to pay to the party who put him into possession." The purchaser may, of course, by his own acts deprive himself of his defence from payment of the pur- chase money, as in Gilkeson v. Snyder, 8 Watts & Serg. 200, where a third person having advanced money to the vendor in part pay- ment of the purchase-money, upon the representations of the purchaser that he would be safe in so doing, it was held that the latter could not, in an action on a bond given for the amount thus advanced, defend him- self by reason of a defect of title. So, in Harper K.Jeffries, 5 Wharton, 26, the defendants gave ten bonds, each to secure $500, for the pur- chase money of a house, which they soon after discovered had been pre- viously mortgaged by the vendor to the Bank of Pennsylvania for $2,470. The vendor thereupon con- veyed to the defendants other prem- ises, in order to indemnify them from this mortgage, and the defen- dants at different times thereafter paid off the respective amounts of several of the bonds to the persons to whom they had been assigned by 716 THE PURCHASER S RIGHT chaser,^ yet on the other, it will not be sufficient, if the title the Tendor. The premises which had been conveyed by way of in- demnity were afterwards sold, under prior incumbrances, for less than the amount required to satisfy them, and the house was soon afterwards sold by the Bank under its mortgage for less than the amount due upon it. Under these circumstances it was held by the Supreme Court, revers- ing the judgment below, that the defendants were not entitled to any defence from payment of the pur- chase money. " The failure of the consideration," said Mr. Justice Ken- nedy, who delivered the opinion, " that is, the loss of the land for which the bond in suit was given, is relied on as a defence [against the payment of it ; this defence, it must be observed, is merely equitable, and to entitle the defendants to avail themselves of it, they ought to have shown that they had no means of preventing it, without being the losers, or giving up that which of right belonged to themselves, for the purpose of satisfying the mortgage- debt owing to the Pennsylvania Bank, which occasioned the sale and the loss of the land to them. But in May, 1826, the time when the land was sold to pay this mortgage-debt, then amounting to $2,612.36, besides interest thereon from the first of June, 1823, the defendants owed upon their bonds, outstanding and unpaid, $2,500 of the principal of the purchase-money of the land; $2,000 whereof, with a large amount of interest for many years back upon the whole of it, had become payable, making a sum more than sufficient to have satisfied the mort- gage debt of the Bank. The money, thus owing by them upon their bonds, may with great propriety be consid- ered as money in their hands belong- ing to the obHgee, whose debt to the Bank incumbered the land, which they might have applied, and would have been perfectly justified therein, to the discharge of the Bank debt, so as to prevent the land from being sold 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, which, properly speaking, could have been regarded as paid out of their own pockets. If the amount of the money, owing by them at that time, was not sufficient to have paid oflf both the mortgage-debt to the Bank, and the amount of the bond in suit, they ought to have applied as much of it as would have either dis- charged the one or the other; and then admitting that they had the right to elect to which it should be so appropriated, which seems to be con- ceding to them the most that they can ask in this respect, but not hav- ing applied it to the discharge of the Bank debt, it is no more than fair to intend that they elected to pay it in discharge of their bonds, and have therefore precluded themselves from setting up the defence that was relied on at the trial of the cause. 1 Thus in Poke v. Kelly, 13 Serg. & Rawle, 165, although the purchaser TO DETAIN PURCHASE-MONEY, ETC. 717 can merely be shown to be doubtful, or the incumbrance merely contingent,-' and unless its character is such as to had actually paid off an outstanding mortgage, it was held by the Court that its payment was not necessary in order to enable the defendant to deduct its amount from the purchase- money. So in Roland v. Miller, 3 Watts & Serg. 390, where the title of the vendor was subject to charges in favor of the heirs of the former owner, a conditional verdict was found for the plaintiff, with stay of execution until releases from these heirs should have been obtained. 1 Culler V. Motzer, 13 Serg. & Eawle, 356 ; Penn v. Preston, 2 Kawle, 1 9 : " I do not wish," said Mr. Justice Kennedy, in Ludwick v. Huntzinger, 5 Watts & Serg. 58, " to be understood as saying that a supe- rior title outstanding in a third per- son, when shown clearly to exist, and that he claims the land by virtue of it, will not be a good defence against payment of the purchase-money or any portion thereof, though a deed of conveyance has been executed by the vendor to the vendee, unless it was explicitly agreed and understood between them, at the time, that the vendee was to take the title of the vendor, such as it was, at his own risk ; on the contrary, I admit, that, according to the authorities, it will be a good defence. But I wish to be distinctly understood as laying down the principle that in order to make such outstanding title a good defence in such cases it must be clearly shown to be indubitably good, and that the land is actually claimed un- der it. It is proper, however, to observe that a different principle governs, where the contract for the purchase of the land remains in fieri, and the action is brought on the con- tract itself with a view to enforce the payment of the purchase-money ac- cording to its terms. There if it should appear that the title of the vendor to the land is anywise doubt- ful, the vendee will not be held bound to pay the purchase-money for it : Stoddart v. Smith, 5 Binney, 365 (and see supra, p. 612), unless it should also appear that he had ex- pressly agreed to do so : Dorsey v. Jackman, 1 Serg. & Rawle, 42 ; Pennsylvania v. Simms, Addison, 9 ;" (for the point actually decided in this case, see supra, p. 706), and these views were cited and approved in the late cases of Crawford v. Murphy, 10 Harris, (22 Peun. State K.) 87, and Beaupland v. McKeen, 4 Casey, (28 Penn. State E.) 131. In Brick v. Coster, 4 Watts & Serg. 494, the Court held an affidavit of defence insuffi- cient, because it did not allege the validity of the adverse claim, or at least the defendant's belief in their validity. The remarks of Mr. Jus- tice Yeates in Stoddart v. Smith, that " a. man will not be compelled to pay for lands which he has pur- chased, though even with general warranty, where it plainly appears that he cannot obtain a good right therefor," were obiter dicta in the case, which was one where no deed had been executed, and they must be considered as limited to the appli- cation pointed out in Ludwick v, Huntzinger. The distinction noticed in that 718 THE PURCHASER S RIGHT defeat the purchase, as, for example, by requiring the whole of the unpaid purchase-money for its removal, the purchaser not allowed on this ground to rescind the contract,-^ IS case as to the rights of the parties while the contract is still executory, and after it has been consummated by the execution of the deed, al- though by no means so broad a one as exists elsewhere (see supra, p. 612 et seq.), yet still is recognized to a greater extent in Pennsylvania than the language of some of the earlier cases would" seem to imply. " If the vendee discovers," said Mr. Justice Kennedy in Moore v. Shelly, 2 Watts, 259, in speaking of an exe- cutory contract, " before he has paid the consideration or any part of it, that the property is under incum- brances which the vendor cannot discharge, he has a right to insist upon rescinding the contract, and may therefore refuse to pay for it, or to do anything on his part towards carrying it into execution." So in Withers v. Baird, 7 Watts, 229 ; Col- well V. Hamilton, 10 Id. 16 ; Gans v. Kenshaw, 2 Barr, 34, (unless the purchaser retain possession of the land, and buy in the outstanding claims, in which case he will of course be compelled to pay the price agreed on, with a deduction for the amount thus paid by him, Renshaw V. Gans, 7 Barr, 171, infra, p. 720), and this is the general principle which is everywhere observed ; su- pra, p. 123. But, as was said by Mr. Justice Sergeant in Magaw v. Lo- throp, 4 Watts & Sei-g. 321, " if he accept a deed under the contract, the vendor may sue for the purchase- money on bond or otherwise, though I if it should turn out that there was a defect of title or outstanding in- cumbrance, he would be entitled to recover, the jury allowing to the defendant a deduction equivalent to the value. It would be no absolute bar to the action, to say that at the time the action was brought, the plaintiff had not conveyed a good and sufficient title, and this was the case of Hart v. Porter, 5 Serg. & Eawle, 201." Magaw v. Lothrop proceeded upon the principle in equity, that in a suit for specific per- formance, the vendor may perfect his title at any time before final de- cree. Where, however, the incum- brances are not removed until after suit is brought, the purchaser is en- titled to costs ; Poke v. Kelly, 13 Serg. & Eawle, 165 ; Withers v. Atkinson, 1 Watts, 248. 1 Thus in Harper v. Jeffries, 5 Wharton, 26, of which the facts have been stated supra, p. 715, the Court said, " It would seem to have been claimed for the defendants, that they, at the time the land was sold on account of the mortgage-debt owing to the Pennsylvania Bank, had a right to rescind their contract for the purchase of the land, so far at least, as to give it up to be sold for the debt, and to claim to be released from the payment of any more of the purchase-money, than what they had previously thereto paid of it. This ground does not appear to have been repudiated by the Court below, but rather to have been submitted to TO DETAIN PURCHASE-MONEY, ETC. 719 but can only defend pro tanto, and the measure of damages tte jury as tenable, in connection ■with tte evidence of the value of the improvements made on the property by the defendants ; ■which could only have been admitted ■with a vie^w to make the impression upon the minds of the jury, that the defendants ■were great losers instead of gainers, by giving up the property and suffering it to be sold ; and therefore it ■would not only be hard, but cruel as well as unjust, to require them to pay any portion of the residue of the pur- chase money. This ground, ho^w- ever, is a mistaken one, and ■wholly untenable. If there ■was any time, after the contract for the purchase ■was carried into execution, ■when the defendants could, with any degree of plausibility, have claimed to be re- leased from their purchase, it was when they were first- told of the in- cumbrance in favor of the Pennsyl- vania Bank. But it is clear that the vendor might have removed all color for such claim then, by an immediate discharge of the incumbrance ; and even if he had declined to do this, the defendants could not have insist- ed upon a. rescission of their pur- chase, without reconveying or qfl'er- inor to reconvey the property to their vendor, upon their being reimbursed by him any expenses necessarily in- curred on account of the purchase. Instead, however, of claiming to have the purchase rescinded, or taking any step to bring about such an event, the defendants go on to ratify and confirm it to the fullest extent of their power, by taking security of the vendor to indemnify them against the incumbrance, and from time to time, as they were able, by paying the principal and interest upon some of their bonds, given to secure the payment of the purchase-money, and in the mean time holding on to and enjoying the property ; so that at no time did the defendants ever inti- mate, by either ■word or deed, that they had even the slightest wish, upon their part, to give up the purchase, before the sale of the property under the incumbrance in 1826. But then it was entirely too late and out of all time to attempt such a thing. The defendants had thus been in the full, free, and uninterrupted enjoyment of the property, until they had become delinquent in paying a portion of the purchase-money more than sufficient to have met and paid off the incum- brance. This, as has been shown above, they might have done with perfect safety to themselves ; and considering it as the money of the vendor, it was inequitable in them to withhold it. If then they have sus- tained a damage or loss by suffering the property to be sold from them, they have no right to claim redress. It must be considered damnum sine injuria; for the maxim of law in such case is, volenti nonjit injuria." The rule here enforced, viz., that if the purchaser have, at the time of the sale of the premises under the paramount incumbrance, enough of the unpaid consideration-money still in his hands wherewith to discharge the incumbrance, he is bound to do so, and cannot set up the loss of the property as a defence in tola, was also recognized and enforced in M'Ginnis v. Noble, 7 Watts & Serg. 720 THE PURCHASERS RIGHT which he will be entitled to defalk against the unpaid purchase-money is the same as that which has been hereto- 454; Renshaw v. Gans, 7 Barr, 117; Dentler v. Brown, 1 Jones, 298 ; Gar- rard V. Lantz, 2 Id. 192 ; Mellon's Appeal, 8 Casey, (32 Penn. State B.) 127. In M'Ginnis v. Noble, supra, the defendant was sued on two bonds, amounting to $3,000, giv- en for the purchase-money of land, which was subject to a judgment against the vendor, under which an execution afterwards issued, and the land sold, and purchased by the de- fendant for $750, and it was con- tended on his behalf that there was a total failure of consideration, but the Court said, " The defence, it must be remembered, is purely equitable, and the inquiry is what would a Chancel- lor do under such circumstances ; on what terms and to what extent would he afford equitable relief? It strikes me most forcibly that all the vendee has a right to require is to be placed ' in the same situation he would be in had he paid the incumbrances with- out suit ; and in that case, it must be admitted, the measure of equitable relief would be precisely the money paid, and the necessary expenses, and no more. The vendee, it is true, is in no default, because no part of the purchase-money was then due, and consequently, he was not bound to pay the incumbrances, as he had nothing in hand to pay them with. He might, therefore, it is ad- mitted, have suffered the land to be sold with a clear conscience, and if at the sale by a judicial process a stranger had purchased, no blame would be imputable to him; the de- fence would go to the whole conside- ration, for a man is not bound to pay for what he has not received. The bonds are given for the purchase- money of the land, and having lost the land, without any default of his own, it would be inequitable and un- just that he should be compelled to pay any part of the purchase-money. But will equity interpose further than for the purpose of protecting him against any loss he may have actually sustained ? We think not. The vendee cannot justly complain that he is not permitted to obtain title to land for $750, for which he agreed to give $3,000. In both cases a court of equity relieves to the ex- tent of the vendee's losses, viz., to the amount of $750, in one case, and for the whole consideration in the other. The failure of considera- tion is total in the one case, and pro lanto in the other. Evenhanded justice requires, that while on the one hand he is not suffered to lose, on the other, he shall not be allowed to gain anything by the sale. He was, I repeat, not bound to purchase, but as he has chosen to do so, he must^ be content with a deduction from the purchase-money, of the amount actually paid, with a reason- able allowance for expenses incurred in the extinguishment of the incum- brances, for to that extent he is in- jured and no more." In the recent case of Garrard v. Lantz, supra, the' Court, after refer- ring to the authoritiesjust cited, said that they " establish the distinction that where the vendee himself be- comes the purchaser at the judicial TO DETAIN PURCHASE-MONEY, ETC. 721 fore referred to as recoverable upon breaches of the cove- nants for title. ^ With respect to what will be deemed to be notice on the part of the purchaser, it would seem that mere constructive notice will not be sufficient to deprive a purchaser of relief sale, he remains liable to the ven- dor for the residue of the purchase money unpaid, but if the land be sold to a stranger, this liability de- pends on the inquiry whether at the period of the last sale, the vendee had in his hands, of the consideration of his purchase, a sum sufficient to ex- tinguish the incumbrance." Where, however, the incumbrance on the land is greater in amount than the unpaid purchase-money, the vendee has an obvious right to treat the contract as rescinded, Garrett v. Cresson, 8 Ca- sey, (32 Penn. State K.) 375. 1 Supra, p. 88, 673. Thus in Steh- ley V. Irvin, 8 Barr, 500, the owner of a mill and of a tavern constructed a pipe to carry water from the for- mer to the latter. He then sold ihe tavern to one purchaser, and subse- quently sold the mill property to an- other. The latter had no notice of the easement, and in an action for the purchase-money, it being proved that the existence of the easement would lessen the benefit of his pur- chase, the jury was instructed that the valub of the easement might be deducted from the amount of the purchase-money, and this instruction was affirmed on error. So in the re- cent case of Beaupland v. McKeen, 4 Casey, (28 Penn. State K.) 134, it was said by Woodward, J., in delivering the opinion of the Court, " The rule that applies to damages on breaches of 61 covenants for title is applicable here, and according to that, either party may produce evidence to show the relative value which the part taken away bears to the whole, and this, as was said by Kent, C. J., in Mor- ris V. Phelps, 5 Johns. 56, operates with equal justice as to all the par- ties to the conveyance. In Lee v. Dean, 3 Wharton, 331, Judge Ken- nedy reasserted the rule with great emphasis as applicable to a case un- tainted with fraud. The relative value of the part to the whole is to be estimated with regard to the price fixed by the parties for the whole. S. P. in White v. Lowry, 3 Casey, (27 Penn. State E.) 255. The whole purchase being assumed to be worth the price agreed on, what part of the price would fairly be represented by the part taken away '? This was the question in Stehley v. Irvin, 8 Barr, 600, though the case is so defectively reported that the point ruled is scarcely discernible. It was compe- tent for either party, under this rule with its limitation, to give evidence of the peculiar advantages or disad- vantages of the part lost; and the inquiry should not be unduly re- strained whilst it is confined to the- proper point, but undue latitude was allowed to it when the cost of erect- ing a saw-mill on an adjoining tract was gone into." 722 THE purchaser's RIGHT under the doctrine we are now considering.-" In Roland v. Miller,^ where the land was subject, under a decree of the Orphans' Court, to a charge in favor of the vendor's co- hejrs, it was argued that the purchaser had notice by the records of that court of the existence of the incumbrance, but the Supreme Court held that it was not pretended that the defendant had any actual knowledge of the incumbrance at the time of the agreement for the purchase, or even at the time that he received the deeds from the plaintiff. Indeed, neither of the parties seemed to have had a knowl- edge of the same, until some time afterwards. This being the case, it could not be supposed that any covenant con- tained in the deeds, was taken or inserted specially with a view to protect the defendant against the effect of it. The case then fell, it was said, within the authority of Stein- hauer v. Witman. So in a very recent case,^ it was held that the fact that the old deeds, which contained a ref- erence to the incumbrance, were on record and lay in the channel of the title, was constructive notice, but was not conclusive of such actual knowledge as would imply the consent of the purchaser and his intention to take the risk of the title. Had he taken a covenant that would have covered the defect, the implication, of actual knowledge would have been irresistible.* 1 Banks u. Ammon, 3 Casey, (27 ly referred by recital to a trust deed, Penn. State R.) 172. giving its date and record, and which 2 3 Watts & Serg. 390. contained a covenant which included 3 Murphy v. Richardson, 4 Casey, the defect, and it was held that in the (23 Penn. State R.) 293. A dis- absence of evidence to the contrary, senting opinion in this case will be the purchaser must be considered to found in 2 Phila. R. 419. have had notice of the trusts in the 4 Citing Fuhrman v. Loudon, 1 3 deed, and to have protected himself Serg. & kawle, 86. See m/ra,p. 735. against them by taking the covenant Thus in Kerr v. Kitchen, 5 Harris, for quiet enjoyment. See as to this (17 Penn. State R.) 433, the pur- in/ra, p. 723. chaser accepted a deed which express- TO DETAIN PURCHASE-MONEY, ETC. 723 Second. Where there is a known defect or Incumbrance, and no covenant, it has been already shown ^ that the rule as generally settled elsewhere than in Pennsylvania with respect to a purchaser's right to detain the purchase-monfy, is, that if the defect or incumbrance be not covered by his covenants for title, the presumption that he intended to run the risk of it, is so strong as to admit of no evidence to the contrary,'* and the purchase-money cannot be detained under any circumstances into which fraud has not entered ; and in the enforcement of these principles, equity follows the law.^ It would seem, however, that while such a principle has not been recognized in Pennsylvania to its full extent with respect to a defect of title, its application has been altogether 1 Supra, p. 613. 2 In cases of sales by sheriffs, com- missioners, and the like, the purchas- er, from the very nature of the trans- action, necessarily buys at his own risk, and cannot detain the purchase- money under any circumstances, by reason of incumbrances or defects of title ; Friedly i\ Scheetz, 9 Serg. & Rawie, 161, and supra, p. 573. The converse of this rule applies in cases of a partition and exchange, in. both of which a warrant}' is implied ; Sea- ton r. Barry, 4 Watts & Serg. 184, supra, p. 470. Where there is a de- ficiency in the quantity of the land conveyed, and there is no covenant that there shall be such a quantity, the purchaser cannot of course detain the purchase-money ; Dickinson o. Voorhees, 7 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 damages, his notice cannot prejudice that right ; supra, p. 128. But un- der what have been styled the equi- table principles of this doctrine in Pennsylvania, it has been shown that while with respect to so much of the purchase-money as has been already paid, the contract is deemed an exe- cuted one, and the money cannot be recovered back unless by force of a covenant, yet that with respect to the unpaid purchase-money it is still ex- ecutory ; or, as has been said by Mr. Justice Yeates in Steinhauer v. Wit- man, there is a locus penilenlias until the money is paid. Hence must arise the question as to the real na- ture of the contract between the parties, and whether the purchaser agreed to run the risk of the title. In such a question, the fact of the purchaser's notice must necessarily be a principal ingredient, and the absence of a covenant does not pos- sess the conclusive and binding effect that would elsewhere be given to it. 7^4 THE PURCHASER S RIGHT denied with respect to an incumbrance. In Hart v. Porter, it was said in the course of the decision,^ that the intent that the purchaser was to run the risk of the title, might he fairly inferred wlien he knew of the defect at the time of the purchase, and made no provision against it,^ and in a subsequent case, Gibson, Ch. J., referring to this expression, emphatically repeated that where there was a known defect, but no covenant or fraud, the vendee could avail himself of nothing, being presumed to have been compensated for the risk in the collateral advantages of the bargain.^ 1 5 Serg. & Kawle, 204, cited supra, p. 710, and see the remarks on this ruling by Woodward, J., in Murphy V. Richardson, 4 Casey, (28 Penn. State E.) 293. 2 So in Ludwick v. Huntzinger, 5 Watts & Serg. 58, the defendant in an action on his bond, given for the purchase-money of land conveyed to him with special warranty, offered to prove an informality in a prior tax sale, and a want of identity of the subject of the contract with the land purported to be conveyed. The Su- preme Court held this evidence was properly rejected by the Court be- low ; that the evidence of a defect of title must be such as entirely to overcome that violent presumption which arises in favor of the defend- ant's having received a good title for the land, from the circumstance of his having, after inspecting it, ap- proved it by accepting the deed con- veying it to him, and thereupon giv- ing his bond for the purchase-money ; and if the purchaser took no cove- nant for his protection, " it goes strongly to prove that he agreed, and was satisfied to take the title of the vendor pretty much at his own risk. This he unquestionably had the right and power of doing, if he pleased, and if it should happen to turn out differently from what he expected, he has but little, if any reason to blame the vendor for it. It might be said with truth that he bargained for the vendor's title merely such as it was, and that he obtained all he bar- gained for, even if he should after- wards lose the land by reason of a superior title to it in a third person." So in Koss's Appeal, 9 Barr, 497, it was said, quoting the language used in Smith u. Sillyman, 3 Wharton, 589, that where the defect is known and not provided for, the presump- tion is irresistible, in the absence of express stipulation, that the vendee relied on his own judgment as to the soundness of the title. 3 Lighty V. Shorb, 3 Penn. R. 451. " In Hart v. Porter," said the learned Chief Justice, " it was said that where a purchaser knows of a de- fect or incumbrance at the time of the bargain, without stipulating for a covenant or other security against it, he necessarily consents to take the risk of it on himself. An intend- ment to that effect is consistent not TO DETAIN PURCHASE-MONEY, ETC, 7£5 The case of Drinker v. Byers,^ however, sufficiently shows that the absence of a covenant and the presence only with the reality of the transac- ,tion,but with the analogous principle of Vane v. Lord Barnard, Gilb. Eq. Rep. 6, in which the purchaser, hav- ing taken an agreement for a special covenant against a contingency that might never happen, was not allowed to detain the purchase-money as an additional security, because his con- sent to rely on the covenant alone, was thought to be deducible from the very nature of the transaction. Is not his consent to bear a risk, known to him at the time, and not provided against, equally deducible from the nature of the transaction ? Not only every scrivener, but every purchaser is aware of the value of a covenant, when a defect is known or suspected." Vane v. Lord Barnard, was a case of a marriage settlement, by which the defendant had, on the marriage of his son, conveyed, with a covenant against incumbrances, a part of his estate which he had previously made subject to a charge in the event of his daughter's marriage ; and Lord Cowper said, " Notice or no notice of this incumbrance, was very material in this case ; for where a covenant is in this manner, if any incumbrance is discovered between the executing the articles, and the sealing the deed of settlement, whereof the party had no notice, that incumbrance shall be discharged, even before sealing the deed of settlement, both on account of the fraud in concealing such in- cumbrance, and because it would be needless to enter into a covenant, which before entering into, is already known to be broken ; but against all other incumbrances discovered after- wards, there is the party's covenant only. Now, where you have notice of an incumbrance before executing the articles, it is a stronger case than the last, for you consent with your eyes open, to accept the party's cov- enant against an incumbrance you were aware of; and when you have chosen your method of security your- self, this Court will give no other, nor make the party do a further act, than by the articles he has agreed to do ; and the rather in this case, for that the portion is not a certain in- cumbrance, but a contingent one ; and therefore, it is reasonable to sup- pose, that my Lord Barnard would not be compelled to charge his re* maining estate, at all hazards, to se- cure against an incumbrance that was but contingent, to the prejudice of his eldest son.'' In Beidelman v. Foulk, 5 Watts, 308, the question arose incidentally upon a point of evidence. Land which had been the property of an intestate was, after his death, sold with a covenant of special warranty by five of his heirs, to the husband of the sixth, who brought an ejectment for a part of the premises against one who, being in possession, claimed to hold it un- der a prior deed from the intestate, which he alleged was meant to in- clude that part, but which, on the face of the deed did not. One of the heirs being offered as a witness for the plaintiff, was rejected by the Court below, on the ground that as 1 2 Penn. R. 528. 61 » 726 THE PURCHASER S RIGHT of notice do not together form a conclusive presumption that the title was to be at the purchaser's risk. The de- fendant, in an action on a mortgage given for the purchase- money of land sold with special warranty, oSered in evi- dence a paper signed by the vendor some weeks before the execution of the deed, which stated that it had been repre- sented to him by the defendant that a third party made pre- tensions to part of the land — that he, the vendor, beheved such pretensions to be groundless, yet for the satisfaction of the purchaser he engaged to save him harmless, if it should appear that there was any justice in the adverse claim. The defendant then proved a loss of part of the land by ejectments under this claim, and the expenditure of various sums in their defence. Notwithstanding it was objected the latter had given bonds to his vendors for the purchase-money, he would, if he failed to recover the part in controversy, be entitled to a deduction for its value, and that the witness was, therefore, directly in- terested in the event of the suit. But on writ of error, Mr. Justice Kennedy, who delivered the opinion of the Court, held that under the circumstances, the witness would be entitled to recover his full proportion of the purchase-money, without any deduction whatever, notwithstanding the plaintiff should fail to recover, on the ground that the purchaser having notice of the defect, had made no provision against it. " The claim of the defendant and his occupation of the ground," said the learned Judge, " being thus visible and known to them all, and the plaintiff buying with his eyes open, seeing the defendant in possession and en- joyment of the privilege of which he now seeks to deprive him, yet requir- ing no provision in his contract for a deduction from or return of any por- tion of the purchase-money in case he should be unable to recover the disputed ground from the defendant, but on the contrary, paying two thirds of the purchase-money in hand, and agreeing positively to pay the remain- ing third on the death of the widow, which might be on the next day for aught he knew, and during the in- terim, the interest on it annually to her, leads inevitably to the conclusion that he was to pay the whole of the purchase-money, whether the land in dispute was recovered or not." And this is in accordance with the princi- ple laid down in Fuhrman v. Loudon, 13 Serg. & Rawle, 386, and affirmed in Lighty v. Shorb, 3 Penn. Rep. 452, that " when the purchaser is aware of a flaw, and provides not against it, he takes the risk of it on himself;" see these cases cited infra, p. 730. TO DETAIN PURCHASE-MONEY, ETC. 7^7 that the execution of the deed, which contained no covenant including the defect, merged all prior articles, it was held by the Supreme Court, that the evidence was properly ad- mitted. Such a decision could not have been made if the purchaser's notice and the absence of a covenant were to be deemed conclusive evidence that he was to run the risk of the title.^ The result, therefore, would seem to be, that where there is a known defect of title, and no covenant which includes it, the presumption is that the purchaser agreed to run the risk of the title, but this presumption is not so conclusive as to exclude evidence to the contrary. But it would seem to have been also held that where there is an incumbrance, of an amount less than that of the purchase-money, and payable before or at the time when the purchase-money ought to be paid, no such presumption arises, and the burden of proof rests upon the vendor to show that the incumbrance was intended to be in addition to the consideration named in the deed, and that the pur- chaser took the land cum onere. 1 That the learned Chief Justice may be cases (and Drinker u. Byers did not mean by the expression in comes within this class) where the Lighty V. Shorb, to say that where acceptance of a conveyance will be there was notice and no covenants, but part execution of the articles, as the purchaser was estopped from in Colvin v. Schell, 1 Grant's Cases, producing evidence to show that he 226, where it was said, " It is argued did not mean to run the risk of the that the conveyance showing no war- title, is clearly shown by the previous ranty against this injury, there is case of Seitzinger v. Weaver, 1 none. Generally, we presume that Rawle, 384, where he said, " The the contract to convey is merged in presumption of law is that the accept- the conveyance, but there may be ance of a deed in pursuance of arti- incidental covenants that are not so cles is a satisfaction of all previous merged. In this contract to convey, covenants, and where the conveyance there is a covenant against this very contains none of the usual covenants, injury, and it is found that the the law supposes that the grantee grantee in accepting the deed, did agreed to take the title at his risk, or not intend to relinquish it, and it is else that he would have rejected it al- not merged." together." It is then said that there 7^8 THE purchaser's RIGHT This was the decision in the recent case of Wolbert v. Lucas/ where the plaintiff having issued a scire facias to recover the balance due on a mortgage given by the defend- ant for the purchase-money of land conveyed to her with special warranty, the latter proved a mortgage given by a former owner of the land, which had been compulsorily paid off by her, in instalments, since the execution of the deed ; and produced a witness, who swore that at the time of making the contract, it proceeded upon the basis that the mortgage to be given by her to the plaintiff", was for the full value of the land, and formed the whole consideration of the purchase. On the other hand, the plaintiff" produced a witness who swore that the contract was, that the defendant would pay the paramount mortgage — that she would be responsible for it, and would take it on herself.^ The Court below charged the jury, that the only question was, whether the defendant knew of the paramount mortgage at the time she purchased ; for if she did, she could not claim allowance for payments made by her on that account, there being no fraud or covenant. The jury having of course found for the plaintiff", the Supreme Court reversed the judgment, and held that if the defendant bought the premises for the amount of the mortgage given by her to the plaintiff", and that was the whole consideration, she ought not to pay more than she contracted for; and if there was more to pay than her deed called for, the plaintiff was bound to show it satisfactorily to the jury. ' 1 10 Barr, 73. humanity is the rankest injustice." 2 The student may, very naturally, Supra, p. 724. , here recall the words of Mr. Chief 3 Xhe Court then went further, and Justice Gibson, heretofore cited, that added that under the evidence, the "the greatest practical evil of the defendant should have had the in- doctrine is that it subjects the con- struction of the Court in her favor, tract to the control of a jury, prone and a credit for all payments made to forget that to cut a man loose by her under the paramount mort- from his bargain from motives of gage. As this decision has been TO DETAIN PURCHASE-MONEY, ETC. 729 The charge of the Court below doubtless proceeded upon the language used in Eighty v. Shorb, that " if there was made the subject of some comment among the profession, I have thought it advisable to present the facts which appeared upon the record somewhat more fully than has been done in the report of the case. Moliere, the former owner, gave a mortgage to the Bank of North America for $3,867, and after his death the mort- gaged premises descended to the plaintiff and defendant, as two of three heirs in intestacy. On the 26th of August, 1839, the plaintiff sold to the defendant his undivided third part of the premises by a deed whose consideration was ex- pressed to be $3,000, and which con- tained a special covenant of war- ranty, and on the same day the defendant gave a mortgage to the plaintiff of two undivided third parts (viz. that which had descended to her, and that which she had just purchased,) for the same amount, of which $500 was to be paid Nov. 20th, 1839; $1,000 on Nov. 20th, 1840; $1,000 on Nov. 20th, 1841 ; and the balance of $500 on Nov. 20th, 1842. At the time of this purchase, the mortgage to the Bank had been re- duced to $1,667. The first instalment was regularly paid. Afterwards the payments were — To the Plaintiff, To the Bank, Nov. 20, 1840, .... $800.00 Deo. 24, 1839, . . . $100.00 Feb. 11, 1841, .... . 15.10 Feb. 12, 1840, . . . . 200.00 Nov. 20, 1841, .... 805.00 Aug. 5, 1840, .... Jan. 15, 1841, . . . Oct. 16, 1841, . . . Aug. 19, 1842, in full, . . 400.00 . 400.00 . 500.00 . 80.00 One third of these payments to the Bank, the defendant claimed to deduct from the balance due on the plaintiff's mortgage, and called a wit- ness, who swore that he went with her to make the purchase — that she took the plaintiff's offer to sell his share for $3,000 ; — the witness thought that $2,500 was its value. The plaintiff then called a witness, who swore that she was present when the contract was made — the plain- tiff asked $3,000, and the defendant insisted on his taking less, saying there was a claim of the Bank. She finally agreed to give $3,000, in four different payments, and to take the business of the Bank on herself. Af- ter the bargain was made, she spoke of the amount to be paid to the plain- tiff' and the Bank. On cross-exami- nation, the witness stated that the defendant came three times — • she said she would pay the claim of the Bank — she would be responsible — she would take It on herself what Mr. Moliere owed the Bank — she said the plaintiff was to have $3,000 paid to him in lawful money. The defendant's witness being recalled, then swore that he could not be mis- taken about the contract, the defend- 780 THE PURCHASERS RIGHT a known defect, but no covenant or fraud, the vendee could avail himself of nothing; " and if the Supreme Court had modified this direction by holding that these circumstances cast upon the purchaser the burden of proving that he did not intend to run the risk of the incumbrance, the decision would perhaps have followed the cases which have just been cited. But it is obvious that it went beyond these cases, and it would seem to establish the rule that where there is notice of an incumbrance, and no covenant, these circum- stances, which elsewhere would be conclusive against the purchaser, do not in Pennsylvania even raise a prima facie presumption against his right to detain the purchase-money; and where the evidence is contradictory, the question as to ant .thought she bought the plaintiflTs share for $3,000 ; that was a full price for it ; it might have beeu agreed that the defendant was to pay the Bank mortgage as part of the consideration, but she felt sure she was not to pay any amount beyond the $3,000. Upon this evidence the Court below charged that if the jury believed the defendant had notice, the plaintiff was entitled to recover ; while on the other hand the Supreme Court held that the defendant should have had a positive instruction in her favor. The cases, however, cited in the opinion, were not similar in their circumstances to Wolbert u. Lucas. In Christy v. Reynolds, 16 Serg. & Rawle, 258, and Tod v. Gallagher, Id. 261, the incumbrances were cov- ered by the covenants. In Poke ». Kelly, 13 Id. 165, no deed seems to have been executed ; and if there were one, it must under the terms of the contract have contained a general warranty. In Withers v. Atkinson, 1 Watts, 236, the purchaser was igno- rant of the incumbrances, relying on the vendor's statement that "there was not a judgment against him under the canopy of heaven ; " the incumbrances, moreover, in that case were all removed by the vendor be- fore the trial. The late case of Fors- ter's Exrs. v. Gillam, 1 Harris, 340, turned upon misrepresentation by the vendor. There was a, defect of title, and Burnside, J., who had also delivered the opinion of the Court in Wolbert v. Lucas, said, " A special warranty does not prevent a vendee from setting up a defence to the unpaid portion of the purchase- money, and in such a case the onus lies on the vendor to show he bought at his own risk." This, it is appre- hended, he can in general do, by merely proving notice on the part of the purchaser ; and if the latter has taken no covenant, the presumption arising from the presence of notice, and the absence of a covenant, is such as to throw, in turn, on the pur- chaser the burden of proving that he did not intend to run the risk of the title. TO DETAIN PURCHASE-MONEY, ETC. JSl the terms of tlie contract is not to be left to the jury as a question of fact, but the purchaser is, in every case, entitled to detain unless his vendor can show satisfactorily that he agreed not to do so. The decision must, therefore, be put upop the ground that a distinction exists between a defect of title and an in- cumbrance ; and as, in an executory contract, the purchaser has an undoubted right either to have incumbrances paid off by his vendor, or to discharge them himself and deduct the amount thus paid from that of the purchase-money, so these principles must, it would seem, be appHed to an executed contract, irrespectively of the terms in which it is expressed; and although the purchaser's right, while the contract is ex- ecutory, applies equally with respect to known defects of title and incumbrances, yet that the former, being insuscept- ible of definite valuation, are not thus to be presumed to have been excepted from the consideration.^ 1 Such a distinction was expressly tion named in the deed was eonclu- taken by the Court. " This is not sive evidence of its amount, as such is like the case of Lighty v. Shorb, so neither the law of Pennsylvania, nor much relied on. There the defect does it generally prevail in this coun- was on the face of the title, purchas- try. See the cases cited supra, p. 65. ed by the defendant, and the maxim The case of Koss's Appeal, 9 Barr, of caveat emptor entered. Equity 491, which was decided but a few would not interfere, because it weeks before Wolbert v. Lucas, may would have been changing the terms also be referred to in this connection, of the bargain. This case is very Patterson having agreed to purchase different. Here, the plaintiff sold a tract of land, entered upon it and one third of the premises for the con- partially built a furnace. He after- sideration of $3,000, the price he wards agreed to transfer his interest asked for the estate, and for which to Lyman, who was to succeed to all she gave her mortgage." It ought to his liabilities for the purchase-money, be distinctly observed that in Lighty and who subsequently, by a verbal V. Shorb, the defect was covered by arrangement, transferred to Marshall the covenants. See infra, p. 736. & Kellog all his interest in the land, It seems impossible that the deci- and made a bill of sale to them of sion of the Court in Wolbert v. Lucas, the fixtures. Lyman and Marshall could in any way have proceeded & Kellog, both having subsequently upon the ground that the considera- made assignments for benefit of cred- 732 THE PURCHASER S RIGHT It has, however, heen very recently decided, upon great apparent soundness of principle, that the doctrine of this case will not apply where the security for the purchase-money upon which the suit is brought, is given by the purchaser after he acquires notice of the existence of the incumbrance.^ itors, the assignee of tte former claimed a dividend out of the estate of the latter, which was resisted on the ground that there were judg- ments against Patterson, which were liens on the fixtures sold by Lyman. But it was also proved that at the time of the purchase, Marshall & Kellog knew of these judgments and consulted counsel, who advised they were not liens ; and Mr. Justice Bell who delivered the opinion of the Court said, " Marshall means that at the time of their contract with Ly- man, his firm had notice of the judg- ments 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 imagined that Lyman had engaged to warrant his vendee's title, either to the land or the fixtures. Marshall & Kellog undertook to de- cide for themselves whether the judgments were or were not incum- brances; and never dreamed of look- ing to Lyman to guarantee them against a mistake in this particular. But apart from the direct proof, the nature of the transaction shows this to have been so. The case presents the uncontradicted fact that jMarshall and Kellog were to take the place of Lyman. As already said, Lyman intended to do nothing more than to transfer to them his interest, what- ever it was, in the contract. Why, then, should he be made answerable for incumbrances not suffered by him, any more than for a defect of title ? The very character of the agreement repels such an idea, as is shown authoritatively in Smith j). Sil- lyman, 3 Wharton, 598. In that case, where there was a similar arrange- ment, it is truly said that the pre- sumption is irresistible, in the ab- sence of express stipulation, that the vendee relied on his own judgment as to the soundness of the title. The same presumption is applicable io are incumbrance. Such an agreement amounts to a declaration by the vendee, that he takes the property just as his vendor received and held it, and subject to all defects or hin- drances not created by the latter." See Smith v. Sillyman, infra, p. 736. It may be difficult to reconcile some of the expressions in the cases ; but in these, as in many other instances, the student may recur to the apt lan- guage of Mr. Chief Justice Gibson in a recent case : " From a series of cases, the law has become a series of principles ; and to keep them in har- mony with each other will conduce more to safety and certainty, than would an implicit obedience in every case to precedent ; " Good v. Mylin, 8 Barr, 55. 1 Lukens v. Jones, decided by the District Court of Philadelphia Coun- ty in December, 1 859, 1 7 Legal In- telligencer, 36. " The action in this case," said Hare, J., who delivered TO DETAIN PURCHASE-MONEY, ETC. 783 Third. While, on the one hand, the absence of a cove- nant, including a defect of which the purchaser has notice, the opinion, " was on a note given for the purchase-money of land ; the defence an outstanding ground-rent, alleged, and so far as the testimony of the witnesses examined for the defendant went, proved not to have been known at the time of the pur- chase. The defendant requested the Judge before whom the cause was tried, to instruct the jury that the verdict must be for the defendant, in consequence of this defect of title. This request was granted, but with ■the proviso, that the jury might look at the note which had been given for the purchase-money, and take its date, which was subsequent to the period at which the knowledge of the ground-rent came to the defend- ant, into consideration in finding their verdict ; and the only question now before us is, whether there was error in the instruction thus given. " Looking at the matter on prin- ciple, and apart from precedent, it would seem very obvious that a promise by a purchaser to pay a sum certain, after a defect in or charge upon the thing purchased brought to his notice, is evidence that he bought subject to the de- fect, or had no right to set it up as a reason for not fulfilling his prom- ise. In speaking of it as evidence, I use the word as distinguished from absolute proof, and mean to speak of it as that which, though far from conclusive, cannot be with- drawn without error from the con- sideration of the jury. It is, how- ever, said that the case of Wolbert V. Lucas, 10 Barr, 73, establishes the 62 opposite doctrine, that knowledge of an incumbrance at the time of re- ceiving a deed for land which has been purchased, and agreeing to pay the price, is no reason why it should not be set up as a defence subse- quently to a suit for the purchase- money. If we look at the decision in that case, apart from the language of the Judge who delivered the opin- ion, we shall find that the only point actually before the Supreme Court was, whether the Court below were right in the position that notice of an incumbrance at the time of buy- ing, precludes the right to deduct it afterwards from the purchase-money, and that everything in the opinion which goes beyond this, and to the point that the jury should have been told peremptorily to find for the pur- chaser, may be regarded as having, more or less, the character of a dic- tum. But even if this be not so, and if Wolbert v. Lucas is to be regarded as establishing the general proposi- tion that a man who agrees to give $10,000 for a house, and consum- mates the agreement by accepting a deed, with full knowledge that he is buying it subject to a mortgage for $8,000, can afterwards plead the mortgage as a defence to a suit for the purchase-money, it can only be because the law will, under these circumstances, imply a promise by the vendor to pay olT or satisfy the mortgage within a reasonable period, and consequently, regards the ven- dee as entitled to treat its continued existence as a breach of contract, which may be set up by way of re- 734 THE PURCHASER S RIGHT raises a presumption that he intended to run* the risk of it, so, on the other, where the purchaser has notice of either a coupment or defalcation. Seen in this aspect, the extreme position as- sumed in Wolbert v. Lucas may be reconciled with logic, if not with reason ; but it ceases to be applica- ble to a case like the present, where the note was given for the whole amount of the purchase-money long after the sale, and consequently, tended to negative the idea that the purchaser was entitled to rely on the failure of the seller to extinguish the incumbrance as a default, or as giving any right to an abatement of the price. " 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 evi- dence that the promisor believed himself, and might, therefore, rea- sonably be presumed by others, to be without right to rely on the de- fect as a reason for not performing his promise, there is another ground on which such a promise cannot be withheld from the jury, without er- ror, at all events, when it is, as in the present instance, put in the form of a promissory note payable in fu- turo, and consequently, carries with it a new consideration, in the shape of a postponement of the antecedent liability. For nothing is, as a gen- eral rule, better settled than that every ground of defence or objection to the performance of a contract, is within the dominion of the party who is entitled to make it, and may be released or abandoned by him at pleasure, in obedience to the well- known maxim, quisquis potest renun- ciare juri pro se introduclo. It is, in- deed, said in Summerville v. Jackson, 1 Harris, 359, that actual fraud forms an exception to the operation of this principle, and cannot be cured, nor the right of avoidance given by it waived or extinguished by any sub- sequent act or agreement on the part of the party defrauded. How this is to be reconciled with the proposition, of which the books are full, that sales vitiated by fraud are voidable only, not void ; that the fraud cannot be set up cis against an innocent pur- chaser, nor even as between the orig- inal parties without restoring the consideration ; and that no grossness of falsehood on the part of the seller will authorize the buyer to recover back the price on any other terms than those of restoring the property for which it is an equivalent, falls beyond the sphere of my functions to determine ; nor need I inquire whether it was meant to assert that a man who has been injured by a fraud, cannot put an end to his right to sue by executing a release under seal or accepting satisfaction in pais. For the case now before us is not a case of fraud, but of failure of con- sideration, and the cases of Duncan V. McCuUough, 4 Serg. & Kawle, 485, and Chamberlain «. McLurg, 8 Watts & Serg. 36, expressly distin- guish between such cases, and those where the fraud is actual, and hold that the former may be confirmed subsequently, whatever may be the rule with regard to the latter. The objection that the waiver was with- out any new consideration has al- TO DETAIN PURCHASE-MONEY, ETC, '^85 defect or incumbrance, and there is a covenant which in- cludes it, the presumption arises that the covenant was expressly taken for protection against it, and the purchase- money cannot be detained unless the covenant has been broken ; in other words, as has been clearly stated, " the purchaser shall he hound to perform his engagement ivher- ever his knowledge and the state of facts continue to he the same as they were at the time of the conveijance.'' ^ Thus, where ^ the plaintiff had conveyed to the defendant a tract of land devised to him by his father, with a covenant of war- ranty 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 a deduction for the amount of them ; but the Court charged that where the incumbrances, with all the circumstances attending them, were known both by vendor and vendee, and the latter took from the former a deed warranting par- ticularly against those incumbrances, it was no defence to payment of the purchase-money to say that the incumbrance was still subsisting ; and the Court left it to the jury to determine whether both parties knew of these legacies charged upon the land, and whether any circumstances had occurred rendering the situation of the defendant more per- ilous than at the time of giving his bonds for the purchase- ready been answered, and the result State R.) 293, to be "the best sum- of the whole is, that the rule which mary of the cases that has been has been granted for a new trial given ; " and see Horback v. Gray, must be discharged." 8 Watts, 497, and the remarks 'of 1 JPer Gibson, Ch. J., in Lighty v. Kennedy, J., in Ives v. Niles, 5 Shorb, 3 Penn. R. 447 ; which was Watts, 328. said in the recent case of Murphy 2 Fuhrman v. Loudon, 13 Serg. &. V. Richardson, 4 Casey, (28 Penn. Rawle, 386. 786 THE PURCHASER S RIGHT money, and this direction the Suprenne Court held to have been perfectly correct.^ So in a case^ where a recital showed that the title to the land was in the wife of the patentee, who after her death conveyed it to two of his daughters and their husbands, who in turn conveyed to the vendor, giving the bond of the patentee as a security for the title, which bond was handed to the defendant when he purchased and took a deed with general warranty, it was held that it was impossible to doubt^ that the mutual under- standing was that the purchase-money was not to be de- tained as a security for the title.* So, where, in a recent 1 So in Strohecker v. Housel, 5 Penn. Law Journ. 327, Lewis, J., (afterwards Chief Justice of the Su- preme Court,) charged at Nisi Prius, " If the jury believe that the eviction and all the facts connected with it, were known to Housel before he bought of Strohecker, and that he took the warranty in his deed for the purpose of protecting himself 'against any eviction in consequence of the right of entry arising to Garber's heirs by virtue of that eviction, and believe farther, that nothing has oc- curred since the purchase to render the condition of Housel more peril- ous than it was before and at the time he purchased, then his defence is not sustained upon equitable prin- ciples." 2 Lighty V. Shorb, 3 Penn. R. 447. 3 In the absence, it is presumed, of evidence to the contrary. 4 It was said, moreover, that the mercantile character of the security given for the purchase-money, a draft of one of the partner vendees in the firm, at twenty-two days, sufficiently attested that nothing but punctual and prompt payment was considered to stand with the contract. So, in Smith V. Sillyman, 3 Wharton, 589, a vendor entered into articles to sell certain land to one who assigned the articles to the plaintiff, who entered into ar- ticles with the defendants, in which it was provided that the first payment of the purchase-money was not to be made to the plaintiff until they were fully satisfied as to the title. A deed was afterwards executed, with gen- eral warranty, by the original vendor to one of the defendants, who, it was held could not in an action brought by the plaintiS to recover the pur- chase money due him, set up as a de- fence that the title was defective, in consequence of which they failed in an attempt to recover the land by ejectment. " From the very nature of the agreement, in the absence of any express stipulation to the con- trary, it would seem that the vendor (of the articles) did not intend to warrant the title to the premises, but that the vendees took the risk, rely- ing on their own judgment as to the soundness of the title and for indem- nity on the original vendor. That this was the understanding, is further TO DETAIN PURCHASE-MONEY, ETC. 737 case, the vendee accepted a conveyance which referred, hy a recital, to a trust deed, giving its date and record, it was held that in the absence of evidence to the contrary, the purchaser must be considered to have had notice of the trusts in the deed, and to have protected himself against them by the covenant for quiet enjoyment.-^ So, where it appeared that the defendant, on making the purchase, was informed of an outstanding claim, and then took a deed with general warranty, it was held that his remedy, if dis- turbed, must be upon his covenant, and that he could not detain the purchascTmoney.^ So, in a recent case,^ it was said that a vendee who takes a covenant against a known defect in the title shall not detain the purchase-money as a further security against it, for the reason that the covenant would be nugatory if he did.* shown from the agreement and the conduct of the parties. It is express- ly agreed (and the security of the vendees is said to be the object), that the first payment shall not be made until the vendees are fully satisfied as to the title to the land. This shows that for this purpose they depended on their own judgment. When the title is fully established to their satis- faction (for so I read the contract), the vendees bind themselves to take the deed. By the agreement, a rea- sonable time is allowed to investigate the title for themselves. Until then a defect of title would undoubtedly be a good defence ; but after having examined it for themselves, and ac- cepted the title, they are foreclosed from taking any defence, on the ground of a failure of consideration, so far as the present plaintiff is con- cerned. This construction is neces- sary for the protection of the plain- tiffs, as they would have no remedy 62* on the covenant against the original vendor." 1 Kerr v. Kitchen, 5 Harris, (17 Penn. State R.) 433. See the case of Murphy v. Richardson, 4 Casey, (23 Penn. State R.) 293, supra, p. 722. 2 Bradford 0. Potts, 9 Barr, 37. 3 Juvenal v. Jackson, 2 Harris, (14 Penn. State R.) 519. 4 In Share v. Anderson's Ex'rs, 7 Serg. & Rawie, 43, the vendor's title was subject to a charge in favor of his mother and sisters. At the time of making the contract of sale, he promised the purchaser that he would procure releases of these charges, but not being able to do so, the deed was executed with a covenant to in- demnify against all estates, charges, incumbrances, &o., and a covenant of general warranty. Releases were afterwards obtained from all but two of the parties, and in an action to recover the purchase-money, the de- fendant set up (besides an allega- 7S8 THE purchaser's RIGHT Where, however, the covenant is actually broken at the time of the suit brought to recover the purchase-money, the purchaser will, on the general principles already referred to,^ for the purpose of preventing circuity of action, be entitled to detain the purchase-money to the extent to which he would be at that time entitled to recover damages upon the covenant,^ and he is not in such case obliged to restore the possession to his vendor, before or at the time of availing himself of such a defence.^ But when the purchaser's covenant is not thus actually broken, — in other words, when he seeks to resist the pay- ment of the purchase-money upon the Pennsylvania equita- ble 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 makes no personal demand against the purchaser, but merely asks, in default of payment of the consideration-money, the restoration of the property conveyed, the purchaser must tion of fraud) the existence of these Ives v. Niles, 5 Watts, 323 ; Poyn- charges and a quit-rent, which he tell v. Spencer, 6 Barr, 257. Morris contended had prevented him from v. Buckley was said by the Court to reseUing, which was the special ob- come within the principle of Stein- ject of his purchase. Under the hauer w. Witman, but the case would charge of the Court, whose judgment probably have been similarly decided was affirmed on error, the jury made in any court, as the deed contained a deduction for the amount of the a general warranty, and the pur- outstanding charges, and also such chaser had never been able to get arrearages of quit-rent as should be the possession which is in general then due. " These, as being a pres- held to be a constructive eviction, ent charge, were properly a subject supra, p. 251. So in Poyntell v. of defence, on the same ground as Spencer, supra, the purchaser had, the liens created by the proceedings to prevent an actual eviction, taken in the Orphans' Court were allowed, a lease under the paramount title, but the vendee could not retain to which had been established by a meet charges accruing afterwards." judgment, of which his vendor, who 1 Sujira, p. 672 e( seq. had sold with general warranty, had 2 Morris v. Buckley, 1 1 Serg. & notice. Rawle, 158 ; Christy v. Reynolds, 16 3 Poyntell v. Spencer, 6 Barr, 256. Id. 258 ; Todd i>. Gallagher, Id. 261 ; TO DETAIN PURCHASE-MONEY, ETC. 739 either pay the purchase-money or restore the possession to the person from whom he received it.^ And it is appre- hended that this result would not be affected by the fact that the purchaser had already paid a portion of the consideration- money, for it will be remembered that as respects so much of the purchase-money as has been already paid, the law of Pennsylvania is the same as it is elsewhere,^ — there is merely a locus penitentice as to so much as is unpaid. Such a course of decision would not, however, apply either in cases where the covenant was actually broken, or where the 1 Hersey v. Turbett, 3 Casey, (27 Penu. State R.) 424 ; « The de- fence," said Lewis, Ch. J., who de- livered the opinion, rests upon a defect in the title to the premises which will be noticed hereafter. The general rule is that whenever a de- fendant enters into possession of land under a contract with the plaintifi for the purchase of it, he will not be permitted to set up an independent title to protect a hostile possession. He must either pay the purchase- money or restore the possession to the person from whom he received it. . . This principle applies with pecu- liar force in an action in which the plaintiff makes no personal demand upon the defendant, but merely asks, in default of payment of the consid- eration money, the restoration of the property conveyed. A scire facias on a mortgage is an action of this character. It makes no personal de- mand on the mortgagor. He is not even liable for the costs of the suit. The judgment is de terris. It is to be levied exclusively on the mort- gaged premises, and the sale conveys " no further term or estate to the purchaser than the lands shall appear to be mortgaged for ; " see act of 1705, § 8, 1 Sra. 61. If neither ven- dor nor vendee had any title at the time of the mortgage, the latter could by no possibility pledge any title to the mortgagee. It is true that equit- able circumstances might exist which would call for the application of the principle that a title subsequently acquired by a vendor enures to the benefit of the vendee. This princi- ple might apply in the case of a loan of money obtained on the faith of a representation that the mortgagor had an indefeasible estate in the premises granted in mortgage as a security for the money. But it can have no place where the mortgage is given merely as security for the purchase- money, to be paid for the premises mortgaged. The purchaser at the sheriff's sale under such a mortgage gets no better or other estate than the mortgagor had in the premises at the execution of the mortgage. It would therefore be unjust as a gen- eral rule, to involve the mortgagee in a dispute about the title, in a pro- ceeding which only gives him or the purchaser under his judgment a right to try the title in a subsequent action for the land." 2 Supra, p. 706. 740 THE purchaser's RIGHT purchase-money was secured by a bond or note, upon which the recovery would fasten upon the purchaser a personal liability. Before leaving this subject, it seems proper to consider the rights of the purchaser, in this connection, in cases where the consideration of the purchase is an annual ground- rent, instead of a gross sum.'^ It is sufficiently evident that the different form which the consideration-money assumes should not deprive the purchaser of a defence in cases in which he would otherwise be entitled to it, for, as has been said, " the continuance of the rent, and the payment of it, depend entirely upon the right of the grantee , to the future enjoyment of the land under the title conveyed to him by the grantor, to whom and whose assigns the rent is to be paid," ^ and as has been recently said,^ " a sale on ground- rent differs from an ordinary sale only in this, that the con- sideration in the first is an annual sum perpetually charged on the land, instead of a gross sum paid or secured, as in the second." In the class of cases lastly referred to, viz., where the defect or incumbrance is covered by the covenants for title which the purchaser has received, and they are broken at the time of suit brought, it has been seen that the latter can, upon general principles, detain the purchase-money to the extent of the damages to which he would be then enti- ' The number of reported cases as was also the case in Spear v. Allison, to this, is, it will be seen, very small. 8 Harris, (20 Penn. State R.) 200. Brown v. Diokerson, 2 Jones, (12 3 Franciscus v. Eeigart, 4 Watts, Penn. State R.) 372, supra, p. 271, IIG, per Kennedy, J., and see also seems to have been an action on the IngersoU v. Sergeant, 1 Wharton, 357, covenants for title. In Juvenal v. to which the student may be referred Jackson, 2 Harris, (14 Penn. State as to the nature of ground-rents in R.) 519, the question turned princi- Pennsylvania, pally upon whether the purchaser 3 In Juvenal v. Jackson, supra, per was entitled to the defence at all, as Gibson, Ch. J. TO DETAIN PURCHASE-MONEY, ETC. 74" 1 tied if he were suing as plaintiff for a breach of the cove- nants. Where, however, the consideration is a ground-rent, the amount of these damages would probably, in most cases, exceed that of the annual rent, and under these circum- stances it is apprehended that unless the defect of title or incumbrance went so far as totally to defeat the entire estate conveyed, the defendant would be entitled, under the Penn- sylvania statute of set-off,-' to a certificate in his favor for the excess of these damages over the amount of ground- rent claimed by the plaintiff. Where, however, the defect of title or incumbrance had totally defeated the entire estate, it is conceived that such a result would simply work a com- plete extinguishment of the ground-rent. These results, however, it should be again observed, must, it is conceived, be confined to cases where the defect or incumbrance is covered by the covenants, and the latter are actually broken.^ Where, however, such is not the case, and the defence is, under the Pennsylvania decisions which have just been quoted,^ an equitable one, resting upon failure of considera- tion, although there can be no certificate found in favor of the defendant, yet he will, it is apprehended, be entitled to 1 The statute of 1 705, Dunlop's under the grantor. Purchase-money Dip;est, 56 ; Purdon's Dig. 237. cannot be recovered back for defect 2 Thus, in the case of Garrison v. in the title, unless there was fraud Moore, in the District Court of Phil- or warranty. The same principles adelphia County (January, 1852, re- which govern an action must apply ported 9 Legal Intelligencer, 2), one' to a set-off, and as neither fraud nor of the defendant's pleas " alleged warranty is alleged, the matter con- that he had been oblige'd to pay a tained in the plea cannot be availa- large sum of money for the prior and ble to the defendant as a set-off to better title, as well as the costs of the the plaintiff's claim in this action." ejectment," which was held bad on See also the distinction between a demurrer, for the Court said " there cross demand and failure of consider- was here no covenant of general ation, noticed in Good v. Good, 9 warranty nor for quiet enjoyment Watts, 572; m/ra, p. 742. except as against persons claiming 3 Supra, p. 709. 742 THE PURCHASER S RIGHT defend himself from payment of the ground-rent, within the limits defined in the classes of cases heretofore referred to on this subject,^ so long as the defect or hicumbrance re- mains. " If," said Kennedy, J., " the grantor of the land, his heirs or assigns, be evicted and deprived of the enjoy- ment of the land by any one having a title paramount, the rent ceases and becomes extinct." ^ So, where there is an eviction of a specific part of the premises, the rent will be apportioned pro tanto? And if the purchaser have re- moved the defect or incumbrance, or be otherwise entitled to the equitable defence referred to, it is conceived that he would be entitled to detain the ground-rent for successive years, until its arrearages should be equal to the amount of his loss.* 1 Su-pra, p. 715. 2 Franciscus v. Eeigart, supra, p. 740. 3 Garrison v. Moore, supra. " We are of opinion," said the Court, " that the second plea, of an eviction by a prior and better title from three tenths of the demised premises is, pro tanto, a defence to an action for the rent, which, in such case, ought to be apportioned." 4 See, passim, as to this, the case of Good V. Good, 9 Watts, 567, ex- plained in 3 Watts & Sergeant, 472. The purchase-money was there se- cured by seven bonds and a promis- sory note. In an action on the first of the bonds, the purchaser estab- lished a failure of consideration as to part of the land, and also claimed a set-oflF for services rendered to the vendor to an extent exceeding the amount of the bond, and the jury found a general verdict for him. In a subsequent action on another of the bonds and the note the defendant rested upon the same grounds, and the plaintiff urged that the evidence of the recovery by the defendant in the previous suit, and the grounds on which it was based, was a bar to the allowance of the same defence in a subsequent suit, but the Court below decided otherwise, and the jury found for the defendant, and certi- fied that there was due him from the plaintiff $2,500, over and above the amount claimed by the latter. The judgment was, however, reversed by the Supreme Court, which held that as respects the set-ofF, that must be presumed to have been passed upon by the former jury, " who must be deemed to have sustained the bond in the first instance, holding it to be satisfied by the set-off and no more. As to what was properly cross de- mand, therefore, the defendant was concluded ; but we must be careful to distinguish it from what was pro- perly failure of consideration. As a ground of demand, the one is legal TO DETAIN PURCHASE-MONEY, ETC. 743 It is, perhaps, hardly necessary to repeat that the pre- ceding cases in Pennsylvania must, with the exception of this last class, be regarded as exclusively local in their ap- plication. and independent of the plaintiff's cause of action ; tlie other is equita- ble, inherent in all the securities founded on the same consideration, and therefore applicable to succes- sive actions on any of them, till the defendant is compensated by defalca- tion to the extent of the loss. In this instance the defendant claimed the promise of his compensation for personal services and damages, for a breach of a covenant that a particu- lar estate of dower in the land had been released, and they were settled in the previous action at what they were worth. But for failure of con- sideration the defendant is entitled, on the whole, to a deduction equal to the average value of the acres lost, determined by the price originally stipulated, . . . and he is entitled to an allowance in this action for any part of it which has not been allowed him before." When the case went down again for trial, the Court below conceived that in the proper application of these remarks, the failure of consid- eration must be apportioned among the securities ratably, and directed the jury accordingly, but this judg- ment was reversed on error (3 Watts & Sergeant, 472), and it was said, per curiam, that the effort of the Judge who delivered the former opinion was " merely to distinguish between the remedy for want of con- sideration, and the remedy for cross demand — not to establish a principle of apportionment, in a case involv- ing the latter, between distinct secu- rities for different parts of the origi- nal debt. The case did not call for it. It was indeed said that want of consideration furnishes a defence which is inherent in all the securi- ties till full compensation for it be attained by defalcation ; and so, in- deed, it is, so far as to dispense with a certificate of balance where the amount to be defalcated exceeds the sum sued for. . . . The principle of pro rata distribution of defalcation for failure of consideration among all the securities, is one which this Court did not mean to establish." INDEX ABSTRACTS OF TITLE, incumbrances excepted from covenants, how noticed in, .... 132 ACCORD AND SATISFACTION, ■when a bar to action on covenants, . 369, 370 presumption of payment to be given under plea of, ... . 602 ACRES, covenant not to be implied from enumeration of, . 523, 524 ACTION, CIRCUITY OF, how prevented by doctrine of estoppel, . . 413 to 435 by allowing purchaser to detain purchase-money, . . . 638, 639 ACTS, what a breach of covenant for quiet enjoyment, . . 164 to 181 what may be required under covenant for further assur- ance, 186 to 190 And see Further Assurance. construction of words acte and mean«, .... 172 ACTUAL SEIZIN. See Seizin. ADVERSE POSSESSION, when a breach of the covenant for seizin, 24, 25, 45 to 49 connection of doctrine of, with the Champerty Acts, 35 to 38 ADVERSE SUIT, notice of, not necessary to be given to cove- nantor, 237, 238 ^ And see Notice. AFTER-ACQUIRED ESTATE, notice of, when it will deprive purchaser of his remedy upon covenants for title, . . . 38 to 44 effect of covenant of warranty in passing, . . 402 to 457 And see Estoppel. 63 74-6 INDEX. AGENT, act of, when the act of the covenantor, within the cove- nants of the latter, . . . . ' . 168 power of sale by, implies power to give proper cove- nants, 570 ANCESTOKS. 5ee Vendok. APPOINTMENT, power of, how dower formerly barred in England by, . . . . 105, 106 consistent with a fee, ... 128 APPORTIONMENT, of damages, when breach partial, . . 89 to 93 And see Damages. AEREAES OF EENT, when breach of covenant for quiet enjoyment, 172, 173 And see Ground-Eent and Pukchase-Money. AETICLES, right of purchaser, while contract rests under, 549, 562, 611, 612 AETIEICIAL WATEECOURSE, breach of covenant against incumbrances, 113, 114 ASSETS, what are, 587 to 599 heir only responsible to amount of, on the old warranty, .... 394 upon the covenants for title, . . . 395, 587 effect of assets in another State, . . 586 administration of, right of covenantee to come in upon assets cis a specialty creditor, .... 588 specific performance of covenants decreed, when incidental to, . . . . 158 to 161 marshalling, as between purchasers, how affected by covenants for title, 286,574,575 ASSIGNMENT, vendor claiming under voluntary, what cove- nants demandable from, . . . 553 specific performance of covenants contained in voluntary, when decreed, . . . . 160 to 162 of lease, no covenants arising by implication from, 477, 473 ASSIGNEE, liability of, in conveyance of leasehold, covenants bind- ing on assignee of reversion, . . . 601 INDEX. 74'7 ASSIGNEE, right of, to benefit of covenant for title, on covenants for seizin, right to convey, and against incumbrances, 336 to 352, 369 to 382, 607 to 609 for quiet enjoyment, further assurance, and of -warranty, 352 to 356, 369 to 382, 607 to 609 And see Covenants for Title, extent to which they run with land. on implied warranty, 470, 610 ASSIGNEES, for creditors, what covenants demandable from, . 565 ASSUMPSIT, not maintainable to reclaim purchase-money, . 640 ASSURANCE. See Pukthee Assurance. ATTORNEY, when responsible for improper omission or inser- tion of covenants, 549 ATTORNMENT, when forbidden by Stat. 11 Geo. II., . . 264 And see Tenant. AVERAGE VALUE, of laud, when to be taken in estimating damages, 90 to 93 BANKRUPT, usually joins with assignee in conveyance of his estate, 567 reason for this, 567 assignees of, what covenants demandable from, . 56 7 BANKRUPTCY, when a bar to recovery on covenants for title, 577 BARGAIN AND SALE, deeds of, usual in United States, . 18 BIGAMIS, statute De, effect of, upon warranty, .... 2, 3 BOND, for performance of covenants, ..... 590,591 reasons for and use of in England, . . . . 591 heir, when liable on bond of ancestor. See Heir. BOROUGH ENGLISH, warranty by ancestor did not descend upon heir by custom of, 11, 398 except by way of rebutter, . . 398,399 BREACH, what amounts to. See the several particular express covenants. 748 INDEX. BREACH, assignment of, on covenant for seizin, . . . 52 to 54 good right to convey, 52 to 54, 107, 108 against incumbrances, . 125 for quiet enjoyment, . 182,184 for further assurance, . 197,198 of warranty, . . . 308 to 311 BUILDING COVENANTS, damages recovered on covenants for title sold or conveyance with, . 325 BUEDEN OF PKOOF, where it lies in suit on covenant for seizin, . . . 55 to 57 against incumbrances, 125 for quiet enjoyment, . 183 for further assurance, 198 of warranty, . . 308 to 311 BY, FROM, OR UNDER, construction of these words in limited covenants, 174, 175 CAVEAT EMPTOR, rule of, how far applicable, . . 611, 616 to 633 And see Purchasbr. CESTUI QUE TRUSTS, when bound to covenant for the title, 567 to 569 test of application of rule, . . . 568 CHAMPERTY, what is, 32 to 37 doctrine of, how connected with that of actual seizin, 80 to 45 effect of statutes of, upon covenants for title, . 38 to 45 CHOSES IN ACTION, not assignable at law, .... 334 when covenants for title are turned into, 337 to 347 See Covenants for Title, extent to which they run with land. COLLATERAL WARRANTY. See Warranty. COMMENDATIONS, of estate by vendor, how far allowable, 623 CONCEALMENT, by purchaser, how far allowable, . . 627 by vendor, 626, 627 CONSIDERATION-MONEY, the ultimate measure of damages on the covenant for seizin, 57, 58 and against incumbrances, . . . 138 to 141 INDEX. 749 CONSIDERATION-MONEY, clause as to, may be explained by parol, in order to affect the damages, 65 to 69 but not to defeat the conveyance, ... 66 or to create a resulting trust, .... 462 to 483 right of purchaser to detain. See Purchase- Money. CONSTRUCTIVE EVICTION. See Eviction. CONTINGENT LIABILITY, when a breach of covenant against incumbrances, . 113 executor, not bound to retain assets to meet future, . . 601 CONVEYANCE, rights of vendor and purchaser, how affected by, 611 to 614 COPARCENERS, implied warranty in partition between, . 471 to 473 must join in actions of covenant, . . 606 COSTS, of defending covenantor's title recoverable, ... 98 counsel fees and other expenses, how far in- cluded, 98 to 103 notice to covenantor not necessary to recovery of, . 99 except as to reasonableness of amount, . . 99 COUNSEL, draft of further assurance submitted to, . . 196 fees of, when recoverable, 98 to 103 COVENANT TO STAND SEIZED TO USES, vested estate necessary to validity of, . . 439 to 441 COVENANTEE, equitable jurisdiction, when exercised on be- half of, 155 to 162, 191, 192 how affected by lapse of time, . . . 602, 603 under statute as to decedent's estates, 594, 595 rights of, whether joint or several, . . 603 to 606 And see Covenants fok Title, extent to which they run with land. COVENAIJTOR, liability of, when material in administration of assets, 574 when joint or several, . . . 578 equitable jurisdiction, when exercised on be- half of, 581 to 586 63* 750 INDEX. COVENANTS FOR TITLE, introduction of, . . . . ■ . their number, ....... elaborately expressed in England, . rules as to their construction, .... extent to ■which they run with land, common-law rule as to choses in action, how modified when covenants concern the realty, in equity, .... distinction between their benefit and their burden, all covenants for title run with the land until breach, . . . but covenants for seizin, right to con- vey, and against incumbrances, held in United States to be broken as soon as made, .... contrary doctrine in England, and in Indiana, statutory provision in Maine, doctrine in Ohio and Missouri, reasons on which American cases are based, but covenants for quiet enjoyment and of warranty held, on both sides of the Atlantic, to be prospective, covenant of non-claim, capacity for run- ning with land, denied in Maine, how benefit of covenants for title vests in successive owners, Mr. Preston's opinion against their divisibility, Sir E. Sugden's, contra, divisibility of, between tenant for life and remainder-man, . limitations to the doctrine, . rights of an intermediate cove- nantee, conveyance of the land carries with it the covenants for title which run with it, whether by voluntary or involun- tary alienation, application to the case of a mort- gage 1,11 11 12 49 334 334, 335 376 334, 335 336 336 337 to 339 339 343 339, 340 347 to 352 352 414 352, 353 354 354 355 356 to 359 357, 358 360 352 360 to 366 INDEX. 7'51 COVENANTS FOE TITLE, extent to which they run with land, covenants will not at law run ■ with equity of redemption in England, 365 nor in Kentucky, 361 general contrary doctrine in ■ United States, . 362 mortgagor, how relieved in equity, .... 365, 366 assignee of land, not affected by equities as to the covenants, .... 369 to 371 release and discharge of covenants. 369 to 373 release by covenantee, after con- veyance, of no effect. 369 but if made while still the owner, will bind as be- tween covenantor and covenantee, . 368,369 how may be made by parol in United States, . 369 contra, in England, 369 at law, will bind subse- quent purchaser, . 371, 379 whether within the regis- try acts. 372, 373 but conveyance of land does not carry the covenants which are broken as soon as made, 374 effect of doctrine. 374 to 376 susceptibility of modification, with respect to covenants for seizin and right to convey, by allow- ing purchaser to sue in name of covenantee, .... 377 to 380 as to covenant against in- cumbrances, . 378, 379 rights of assignee of covenant for further assurance, 381, 382 rights of assignee of covenant of non- claim, 382 of covenants generally, how affected by want of estate to support the covenant, . 382 to 393 effect of doctrine under mod- ern conveyancing, 384, 385 752 INDEX. COVENANTS FOR TITLE, extent to which they run with land, not reUeved by operation of estoppel, . . . • 386 doctrine, how modified in New York and Massachusetts, 388 to 393 operation of, by way of estoppel or rebutter. See Estoppel. how hmited or restrained, by other covenants, when preceding restrictive words ex- tend to all the covenants, . . 492 to 511 exceptions, . . • . 501 to 511 when subsequent limited covenant will not restrain preceding general one, 512 to 517 when preceding general covenant will not enlarge subsequent limited one, 518, 519 when restrictive words do not operate, the covenants being of different na- tures, 519 by express agreement, 521 to 523 jurisdiction of equity in reforming cov- enants, 129,522,523 by descriptive context, 523 to 529 exceptions, .... 529 to 533 what covenants a purchaser has a right to expect. See Vendor. presence of, when material in marshalling of assets, 574 to 576 liabilities of covenantor, .... 574 married women, .... 578 to 580 heir, 433, 434 devisee, 594 to 599 executor or administrator, . 592, 599 to 600 assignee, 601 rights of covenantee, ..... 602 to 606 heir and devisee, .... 607 to 609 executor or administrator, . . 609 assignee, . . . . . . 610 purchaser's right to detain or reclaim purchase- money, depends upon presence of, . . 613, 614 joint and several, as to liability of covenantors, . . 578 rights of covenantees, . . 603 to 606 for further assurance. See Fukther Assur- ance. for right to convey. See Right to Convey. INDEX. '^58 COVENANTS FOR TITLE, against incumbrances. See Incumbrances. of non-claim. See Non-Claim. for quiet enjoyment. See Quiet Enjoyment. for seizin. See Seizin. of warranty. See Warranty. CUSTOMARY HEIR, warranty of ancestor did not bind, . . . 11,398 except by way of rebutter, . . 399 DAMAGES, measure of, on the ancient warranty, . . . . 2, 58, 59 on covenants for seizin and right to convey, ultimate extent is the consideration- money and interest, . . . 58 to 63 evidence admissible to explain consid- eration 65 improvements or increased value not recoverable, 58, 63 limited by amount paid to purchase the valid title, 71 but plaintiflf must afBrmatively show this amount to be rea- sonable, .... 71 refusal to purchase, no bar to recovery, .... 71 how regulated when purchaser still in undisturbed possession, . . . 73 to 80 if possession ripened into valid title, only nominal damages, . 74 recovery of nominal damages a bar to a subsequent action, . 75 unless where covenant treated as a continuing one, .... 75 recovery of substantial damages, how far it revests the title in the covenantor, . . . 76 to 80 reconveyance not necessary to be made, 76 though perhaps prudent, . 78 and entry of judgment might be reserved, or execution stayed, until made, .... 78 when outstanding title enuring by es- toppel, reduces the damages to nominal, 80 754 INDEX. DAMAGES, measure of, if tendered by covenan- tor, whether equity will compel him to accept it, .... 81 to 87 where breach partial, purchaser may recover joro tanto, . . ■ 88 but cannot rescind the contract, 92 relative value of the land, when to be considered, 90 interest on consideration-money recov- erable, 93 but only to extent to which pur- chaser liable for mesne profits, 93 to 97 costs, counsel fees, and other expenses incurred in adverse suit, when re- coverable, 98 to 104 and independently of notice to covenantor, .... 100 except as to reasonable- ness of amount, . . 100 but counsel fees and expenses in suit on covenants not re- coverable, .... 103 on covenant against incumbrances, when nominal, 134, 135 general rule as to, 136 difficulty in its application, . . 137 when incumbrance is an estate for life or years, 137 when estimated by amount paid for re- moval of incumbrance, . . . 138 provided it do not exceed the consideration-money, when limited, in case of an intermediate covenantee, to damages recovered from him, ....... measure of, in cases of leases, measured by consideration-money, when incumbrance has totally defeated the estate, but not when purchaser has still a legal right of redemption, as in cases of mortgages, but purchaser under no obliga- tion to redeem, . . . 148 138 to 141 375 143 142 to 144 146 to 148 INDEX. 755 DAMAGES, measure of, and when no such right exists, refusal to purchase will not re- duce the damages, . . . 145 on covenant for further assurance, . . 200 to 202 on covenants for quiet enjoyment and of war- ranty, measure of, as to improvements and in- creased value different in different States, 312 where measured by value at time of eviction, .... 314 to 316 rule of the civil law, . . 316 to 318 where limited by consideration- money and interest, . . 317 to 321 by amount paid to purchase adverse title, . . 138 to 141, 270 in case of an intermediate covenantee, to amount re- covered from him, . . 375 in case of sale upon building covenants, . 325 how regulated by occupying claimant laws, . . . 320 improvements, when allowed by party seeking aid of equity, 323 distinction in actions of dower, between improvements and increased value, . DEBT, damages, when a, DEBTS, 326 to 331 588, 589 liability of land for payment of, 591,592 damages come within a demise for payment of, . . 598, 599 DEDI, warranty created by, 2,467,468 DE DONIS, ' effect of statute of, upon warranty, . . ,. 5 DEEDS, of lease and release, advantage of, in England, . . 18 what covenants should be contained in. See Purchaser. poll, whether covenant can be maintained against lessee under, 477 DEFAULT, what a breach of covenant for quiet enjoyment, . 172 to 175 DEFECT, notice of, on the part of purchaser, no defence to action on the covenants, 128 to 134 756 DEFECT, INDEX. 611, 612 612, 613 478 right of purchaser to title clear of, . how affected by execution of the deed, . And see Purchaser. DEMISE, covenant implied by the word, its effect, And see Implied Covenants. DESCENT, what covenants demandable when vendor takes by, 552, 553 DEVISE, what covenants demandable when vendor takes by, 552, 553 DEVISEE, liability of, at common law, ^4 to 596 by statute in England, 596 to 598 in United States, . . . . 593 to 596 real estate of devisee, how liable on cove- nants in England under devise for pay- ment of debts, 598,599 rights of, generally, ..... on covenants for seizin, right to convey and against incumbrances, for quiet enjoyment, further assurance and of warranty, must sue if breach be after testator's death DISCONTINUANCE, when produced by warranty, DISSEIZIN, different opinions as to, warranty commencing by, was void, importance of this doctrine, DISTURBANCE, what a, within covenants for title. See Eviction. DIVISIBILITY OP COVENANTS POR TITLE, opinion of Mr. Preston against, . . . 335,336 Lord St. Leonards, contra, as respects tenant for life and remainder- man, DOUBLE TITLE, when necessary in cases of exchange, . DOUBTFUL TITLE, purchaser not compellable to accept, what is, DOWER, no breach of covenant for seizin, whether an incumbrance within covenants, 607 to 609 336 to 347 352 to 356 609 210 16 437 438 335 335, 336 470 562 to 565 562 to 565 51 121 to 125 INDEX. y-^T DOWER, how formerly barred in England, 105 106 hus- . 463 to 466 . 326 to 331 altered by recent statute. in action of, defendant not estopped to deny band's title, . damages in, DOWER USES, object of, in English conveyancing, . . 105 EASEMENT, no breach of covenant for seizin, ... 51 breach of covenant against incumbrances, . . 113,114 See Incumbrances. ELEGIT, only execution on lands by statute of Westminster, . 58^7 EMINENT DOMAIN, right of, no breach of covenants for title, 117,166 release of damages for exercise of right, held no breach, . . . . 293 to 305 ENJOYMENT. See Quiet Enjoyment. ENROLMENT, when required by statute 27 Henry VIII., . 18 ENTRY, exercise of right of, when breach of covenant of war- ranty, ... 244 EQUITABLE ESTATE, owner of, when compellable to cove- nant for the title, .... 567, 568 EQUITY, jurisdiction of, in specific performance of covenants, not exercised as a general rule, . . . 155, 156 exceptional cases on principle of quia timet, 154 to 157, 387 and when incidental to administer- ing of assets, .... 158 to marshalling of assets, . 574 to 578 in case of covenant for further assurance, . 183 to 193 when covenants are contained in voluntary conveyance, 160 to 162 in reforming covenants, . . 129, 522, 523, 585 in rescinding contracts or detaining purchase- money. See Purchase-Money. in declaring mortgagee entitled to benefit of covenants, 365, 366 exercised on behalf of covenantor, . . 581 to 586 covenantee, 155 to 162, 191, 192 64 758 INDEX. EQUITY, rule of, as to allowance for improvements, . . . 320 EQUITY OF EEDEMPTION, covenants for title will pass with, in United States, generally 362 contra in England and Kentucky, . . 361, 365 relief granted to mortgagor in equity . . 365, 366 EQUITIES, when assignee of covenants not bound by prior, . 369 to 371 ESTATE, privity of, when necessary to enable covenants to run with land, 334 of mortgagor, whether sufficient to carry covenants with it, 360 to 366 what sufficient to support covenants, after-acquired. See Estoppel. ESTATE FOR LIFE, existence of, a breach of the covenant for seizin, measure of damages, how estimated, life tables admissible to show value of, . ESTATE FOR YEARS, breach of covenant against incumbrances, . damages how estimated, ...... ESTATE TAIL, existence of outstanding, a breach of covenant for seizin, ...... collateral warranty first introduced to defeat, . ESTOPPEL, generally, of tenant, from denying landlord's title, . origin of doctrine, statute of George II., qualifications to doctrine, not appUcable as between vendor and purchaser, of vendor, how created by a recital, but no estoppel therefrom to a purchaser, nor from, acceptance of an estate, defendant in action of dower, not estopped to deny husband's title, . none caused by consideration clause, . . 65 to 69, 460 to 463 extent to which doctrine is carried by recent cases, 461, 462 how created by former recovery, 76,77 operation of covenants for title by way of, definition of estoppel, 402 its ordinary effect, ...... 402 as to passing an after-acquired estate, . . . 402 where conveyance was feoffment, fine or recovery, 402 382 to 393 52 89 90 137 137 52 5, 204 262 to 268 263 264 264 to 267 268 407 465 466 464 465 463, 466 INDEX. 7'59 ESTOPPEL, operation of covenants for title by way of, or in cases of leases, . . . 403 but not by a grant or release, . . . 404 or by conveyances under statute of uses, 405-407 difference between ordinary and extraordinary effect of estoppel, 408 latter effect given in United States to cove- nant of warranty, 409 said to be based on tbe preventing circuity of action, 413 early cases did not require presence of covenants, .... 408 contrary doctrine at present time, 409 no estoppel where alienation is involuntary, . . . 411 statutory provision in Arkansas and Missouri, 411 no estoppel created in Maine by covenant of non-claim, . . 414, 415 contra elsewhere, . 415 nor by covenants for seizin when satisfied by tortious seizin, . 416 nor where an after-ac- quired estate is not in- cluded within the cove- nant, .... 416 nor where the covenant is limited by the estate conveyed, . . . 418 principle of the cases, . . . 421, 422 distinction between operation of cov- enants by way of estoppel, and re- butter, 422 as between the purchaser, and the grantor and his heirs, . . . . 422 to 427 estoppel fastens after- acquired estate on the former, nolens volens, ... 424 as between the purchaser and subsequent purcha- sers from the grantor, . 427 to 433 760 INDEX, ESTOPPEL, operation of covenants for title by way of, effect of doctrine on registry acts, may affect a pur- chaser without notice, doctrine not wholly based on preventing circuity of action, exception in cases of different sets of purchasers, .... estoppel of married women, although not liable for damages on their cove- nants, .... supposed origin of doctrine a passage from Co. Litt., probable mistake in its application, its explanation, rules of common law as to operation of warranty, it required an estate to support it, such an estate created by feoffment or fine, but not by grant or release, and when commencing by disseizin was void application of these principles, doctrine in Pennsylvania, . in England, .... true principle of estoppel in connection with covenants, .... no estoppel by covenants in a purchase- money mortgage, .... estoppel of grantor to contradict considera- tion 65, 460 to 463 of purchaser, not caused by accep- tance of estate, . . . 463 to 465 nor by recital, . . 466, 467 EVICTION, breach of covenants for quiet enjoyment, and of warranty by 240 to 308 actual, dispossession by process of law, . . 242, 243 by entry, .... 244 by voluntary abandonment, . 245 to 251 430 430 433 433 433 434 435 436 436 to 438 436 436 437 437 438 to 441 441 to 447 447 to 454 454 to 457 457 to 460 INDEX. 761 EVICTION, constructive, by inability to get possession, . . 251 to 260 by lease or purchase of adverse title, . 260 to 293 when established by a judgment, . 260 to 278 ■when not thus established, . . 278 to 293 where eviction of something which represents the land, . . . 293 to 305 a defence to payment of rent by tenant, . . . 265 how pleaded, 308 to 311 EVIDENCE, when admissible to vary consideration clause, . 65 to 69 what, necessary to support action on covenants for title. See the several Covenants. EXCEPTED INCUMBRANCES, should be set forth in abstract of title, 128 to 134 covenantor not liable for, 128 to 132, 526, 530 EXCHANGE, warranty and condition of re-entry implied in cases of, 8, 470 inconvenience of, at present day, in requiring a double title, 470 abolished by statute in England, .... 470 EXECUTED AND EXECUTORY CONTRACTS, different doctrines that govern, 549, 565, 611, 612 EXECUTION, under process, not necessary to eviction, . . . 242, 243 assignee under, may take advantage of covenants, . 352 by extent under statute of Westminster, . . 350,351,588 EXECUTOR, liability of, covenantee might, at common law, sue either heir or executor, . . • i ■ 588 how altered in United States, . . 592 to 596 not affected by breach being before or after death of testator, 599, 600 real estate of testator, when assets in hands of, 592 to 596 not bound to retain assets to meet future contingent breaches of covenant, . . 601 rights of, none on the old warranty, .... 336 dependent on breach occurring in lifetime of testator, 336, 609 64* 762 INDEX. EXECUTOR, on covenants for seizin, right to convey and against incumbrances, . . . 336 to 347, 599 for quiet enjoyment, further assur- ance and of warranty, . 352 to 356, 599 And see Covenants fok Title, extent to which they run with land. on sales by, what covenants to be expected from, 565 rule when they enter into covenants of greater scope, . . . • . 570 to 572 EXPENDITURE. See Impkovements and Costs. EXPENSES. See Costs. EXTENT, remedy, by execution, under statute of Westminster, 350, 351, 588 when a breach of covenants for title, . . . 350 FAILURE OF TITLE, right to reclaim or detain purchase-money by reason of. See Purchase-Monet. FEMES COVERTS. See Married Women. FEOFFMENT, requisites to and effects of, . . . when disseizin created by, FIDUCIARY VENDORS, covenants demandable from, . liability of, on covenants of greater scope, FINE, married women bound by warranty in, . effect of, in divesting future rights, .... covenant for further assurance whether it extends to levy- ing a, FIRE, rent must be paid, though premises be burned by, . FOOTWAY, existence of, whether breach of covenant against incumbrances, 117, 118 FORGERY, where no breach of a covenant that party had done no act to incumber, 614 FORMER RECOVERY, how far a bar to a subsequent action on covenants, 152 FRAUD, damages not increased by, in actions of covenant, . 65 but by action of deceit, . 325 remedy of purchaser in case of fraud or concealment, 615 to 632 16, 436 16 565, 566 570 to 572 578, 579 408 436 188 615 INDEX. 'J68 FRAUD, distinction between mistake and, 621 jurisdiction of equity in reforming covenants on ground of, 139, 522, 523 FRAUDULENT DEVISES, statute of, 589 to 591 FURTHER ASSURANCE, covenant for, form of, 185 what acts may be required under, depend upon the scope of the other cove- nants in the deed, ..... 189 or the nature of the estate con- veyed, 190 to 193 must be necessary and practicable, . . 186, 187 as to production of title-deeds, . . . 194,195 covenants not demandable in deed of further as- surance, 197 usual course to obtain performance of the cove- nant, 196 pleadings, declaration must state the particular assur- ance required, and the right to demand it 198 breach of, when it occurs, 199 when may be taken advantage of by assignee, . 200 damages upon, 200 to 202 FUTURE ESTATES, operation of warranty upon, . . . 409 to 457 And see Estoppel. GATE, erection of, a disturbance within covenant for quiet en- joyment, 181 GAVELKIND, warranty by ancestor did not descend upon heir by custom of, 11,398 except by way of rebutter, . . . 398 GENERAL WORDS, in covenants, how limited, . . . 492 to 519 And see Covenants for Title. GIVE, warranty implied from the word, .... 2,467,468,483 GOOD RIGHT TO CONVEY. See Right to Convey. GRANT, operation of, at common law, 404 after-acquired estate did not pass by, .... 404 76* INDEX. 474 533 to 548 335 173, 183 164 729 to 732 164 GKANT, covenant implied from the word grant in creation of a leasehold, but not in its assignment, nor in creation or transfer of a freehold, 474 to 476 " GRANT, BARGAIN AND SELL," no covenant created by, at common law, 474 to 476 covenants created by statute from these words, ...... GROUND-RENT, liability of assignee of land to pay, how sup- ported, ....... arrears of, when breach of covenants, . payment of, not necessary to recovery on covenant for quiet enjoyment, right to detain purchase-money when se- cured by, And see Puechase-Money. GROUND-RENT DEEDS, covenant for quiet enjoyment usually inserted in, And see Ground-Rent. GUARDIAN. See Fiduciary Vendor. HEIR, by customs of Gavelkind and Borough English, not bound by warranty of ancestor, 11,398 except by way of rebutter, 398 liability of, on the old warranty, on covenants for title, must be named, and have assets by descent, common-law rules as to liability of, could be sued jointly with executor, . immaterial whether covenant broken be- fore, or after death of ancestor, but not liable if he had aliened the lands, remedy by statute of fraudulent devises, . trust estates not assets before statute of frauds, .... lands how liable at present day, in hands of, in England, . in United States, rights of, on the old warranty, on covenants for seizin, right to convey and against incumbrances, 336 to 347 . 3,469, 587 586 587 588 588 589 689 589 589 592, 593 591 592 336 INDEX. 765 HEIR, right of, on covenants, for quiet enjoyment, further assurance and of warranty, ...... 352 to 356 must sue if breach be after death of ances- tor 609 And see Covenants fob Title, extent to wJdch they run with land. HIGHWAY, no breach of covenant for seizin, .... 51 whether breach of covenant against incumbrances, 115 to 119 HOMAGE, warranty implied from, 2,467 how affected by statute of quia emptores, . . 3 HOUSE, . right of occupancy of, a breach of covenant against incumbrances, 113 buildings, removal or destruction of, a breach of cove- nant for quiet enjoyment or of warranty, . . 181,295 HUSBAND AND WIFE, lease made by husband, of wife's estate, within covenants limited to those claiming hy,from, or under hrax, . . .... 176 so when made under defective execution of a power, 176, 177 And see Dower and Married Women. ILLEGAL CONTRACTS, how far void, 38 to 44 IMPLIED COVENANTS, none exist at present day at common law, in creation or transfer of a freehold, . . 476 or from the word grant, or the like, . 474 to 476 but implied from the words of leasing, . . 476 from the words yielding and paying, 476 but not in the assignment of a lease, 478 nor from a mere agreement to let, . 480 effect of impHed covenant, . . . . 477,478 restrained by express covenants, . 483 lasts no longer than the estate out of which it is granted, .... 484 what covenant implied from mere relation of landlord and tenant, . . ._ . . 479 to 483 distinction between express and implied cov- enants, 485 to 488 covenants not to be implied from recitals, . 488 to 490 rights of assignees under, .... 488 766 INDEX. 469 2 467 2,3, 467 2, 467, 468 470 470 to 473 IMPLIED COVENANTS, implied by statute from the words grant, bar- gain and sell, 533 to 548 are joint or several, according to interest granted, 578 IMPLIED WARRANTY, heir not bound by, ...... from homage, ....... how affected by statutes de iigamis and guia emptores, ..... from the word dedi in cases of exchange, . . . ^ . . of partition, inconvenience of doctrine at present day in requiring a double title, . 470 but the implied warranty only ex- tended to coparceners, . . . 471 how affected by alienation, . . 471 how altered by statute of Henry VIII 471 and in cases of partition by writ, 472 different in Pennsylvania, in cases of tenants in common by descent, . . . 472 remedy upon, at pres- ent day, . . 473 IMPROVEMENTS, not allowed to purchaser as damages on covenants for seizin and against incumbrances, . . . 57 to 65 where allowed on covenants for quiet enjoyment and of warranty, 312 to 324 in cases of sale with building covenant, . . . 325 when allowed by party seeking aid of equity, . 323 how allowed by occupying claimant laws, . . 320 recoverable in cases of fraud, .... 65,325 INCREASE, in value, how allowed for in admeasurement of dower, 326 to 330 when not recoverable in action on the covenants. See Damages. INCUMBER, iiducidry vendors, only covenant that they have done no act to, 565,566 INCUMBRANCES, known, should be expressly excepted from covenants 128, 133 INDEX. 767 INCUMBRANCES, otherwise, notice of, no defence to cove- nantor, ..... exception of, how introduced in cove' nants, covenant against, ' form of, when limited to acts^of grantor, when given by trustee, in England, usually supplementary to covenant for quiet enjoyment, ..... and, therefore, prospective in its operation, . how expressed in America, .... distinction between, and covenant to discharge of incumbrances, . . . . ' . what a breach of, taxes, judgments, mortgages, &c., contingent liability, .... easements, distinction between natural and arti- ficial watercourse, public roads, .... right of eminent domain, ... as to right of dower, .... 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 oases on principles of quia timet, ...... and when incidental to administra- tion of assets, when covenants are contained in voluntary conveyance, known incumbrances should be excepted from the covenant, .... notice of incumbrance no defence to action on the covenant, .... jurisdiction of equity in reformation of cov- enants, ...... rights of assignee of. See Covenants fok Title, extent to which they run with land. 128 to 129 133 109 111 112 110 110 111 ■ 153 113 113 113 to 119 114 115 to 119 117 119 to 125 125 127, 378 126 154 154 158 160 128 128 129 768 INDBX. INDEMNITY, covenant against incumbrances partakes of char- acter of covenant of, . . . . . 173 INFANTS, covenants from, 559 conveyance by infant grantor, no breach of covenants for seizin, .... ... 52 but of covenant for good right to convey, . 107 INJUNCTION, when granted to restrain collection of purchase- money. See Purchase-Money. INSOLVENCY, when a basis of equitable jurisdiction in re- lieving from payment of purchase-money, 691 to 700 INSOLVENT, trustees of, what covenants demandable from, . 567 INTEREST, after-acquired. See Estoppel. on consideration-money, recoverable as damages, 93 to 97 but only to extent to which purchaser liable for mesne profits, . INTERRUPTION. See Eviction. INVOLUNTARY ALIENATION, covenants for title will pass by, no estoppel created by, JOINT AND SEVERAL COVENANTS, as to liability of covenantors, . rights of covenantee, JUDGMENT, no breach of covenant for seizin, whether removal of, may be required i enant for further assurance, . LAND, covenants running with. See Covenants for Title. LANDLORD AND TENANT, what implied covenant for title arises from simple relation of (anrf See Tenant), . . . 479 to 483 LATENT DEFECTS, when must be disclosed by vendor, .... 626 LEASE, when an incumbrance within covenants, . . 52,113,140 usual covenants contained in, .... . 163 measure of damages upon covenants contained in, 142, 325 effect of, in passing an after-acquired estate, . 403, 440, 441 • • 93 to 97 352 410 578 603 to 606 51 under cov- 188 INDEX. 769 LEASE, covenants implied in creation of, 476 to 483 but not in assignment of, 478 LEASE FOR LIFE OR YEARS, measure of damages upon incumbrances caused by, 89, 137 LEASE AND RELEASE, deeds of, why generally employed in England, . 18 LEASEHOLD, ancient warranty used as personal covenant with respect to, 9, 208 implied covenants in, restrained by express cov- enants, 483 LET, covenant implied from the word, 476 LEX LOCI REI SIT^, covenants for title, how far to be governed by, . 43 LIABILITY, of covenantor. See Covenantor, and the several Covenants. of married women. See Married Women. of heir. See Heir. of devisee. See Devisee. of executor. See Executor. of assignee. See Assignee. LIEN, debts, how far a lien on real estate of decedent, . . 591,592 LIFE ESTATE, existence of, a breach of covenant for seizin, . . 52 measure of damages, how estimated, . . 89 value of, how proved, 137 . LIMITATION, of time, effect of, in freeing lands from lien of debts, 594 to 596^ when presumption of satisfaction of cove- nants arises from, 602, 603. LIVERY OF SEIZIN, necessary to feudal transfer of freehold, ... 15, LOCAL, action on covenants for title are local when plaintiff claims by privity of estate, 575, 576. MAINTENANCE. See Champerty. MARRIED WOMEN, dower of, whether an incumbrance within cove- nants, 119 to 125 how formerly barred in England, . . 105,579 altered by recent statutes, . . 105, 579 65 770 INDEX. MAKRIED WOMEN, estoppel of, by covenants, .... 433, 434, 580 denied in some States .... 434 but not liable in damages, ..... 573 to 580 except in case of a fine, . . . • 579 MARSHALLING OF ASSETS, presence of covenants for title, when material in, . 574 to 576 MEANS, construction of words, means, privity and procurement, . 172 MESNE PROFITS, interest on consideration-money recoverable as equiva- lent to loss of, 93 but limited to extent of purchaser's liability for, 93 to 97 METES AND BOUNDS, covenants when extended to, 524 to 531 MINOR. See Infant. MISREPRESENTATION, remedy of purchaser in case of fraud or, . . 615 to 632 MISTAKE, how distinguished from fraud, ..... 621 in framing covenants not remediable at law, . . 18,129 jurisdiction of equity in refusing covenants on ground of, 129, 522, 523 MORTGAGE, no breach of covenant for seizin, . . 51 breach of covenant against incumbrances, 113, 135, 146 to 148 measure of damages by reason of, while purchaser's right of redemption open, limited to amount necessary to purchase it, 146, 147 but purchaser under no obligation to redeem, 145, 148 and if evicted by, and redemption be past, damages will be measured by the considera- tion money, ...... 148 where no redemption exists, refusal to pur- chase will not reduce the damages, . . 145 equity of redemption, whether covenants run with {and see Moetgagok), . . . 362 to 366 unlimited covenants inserted in, ... . 552 mortgagor when not estopped by his covenants in, . 457 to 460 when retirement before, an eviction, . . . 249 MORTGAGOR, estate of, whether sufficient to carry covenants to purchaser from, 360 to 366 doctrine in United States, generally, . . 361 to 364 contra in England and Kentucky, . . 360, 361 relief afforded by equit)', .... 366,366 INDEX. 771 MORTGAGOR, unlimited covenants usually given by, . . 552 but in case of purchase-money mortgages these are restrained to acts of mortgagor, . 457 to 460 MORTMAIN, fines and recoveries used to evade statutes of, . . 6 NEGLECT, covenant for further assurance not broken when act prevented by neglect of covenantee, . . . 187, 188 when a breach of covenant for quiet enjoyment, . 172 to 176 NOMINAL DAMAGES. See Damages. NON-CLAIM, Covenant of, its nature, 222 form of, 222 when limited, 223 capacity for running with land, denied in Maine, 415 to 417 NOTICE, under averment of, in pleading, whether proof may be given of dispensation, 311 no presumption of notice of defect of title arises from presence or absence of covenants, .... 556 of incumbrance, no defence to action on the cove- nants, 128, 134 to warrantor of adverse suit, necessary to recovery on warrantia chartce, 238 to covenantor, not necessary to recovery on cove- nants, 237, 238 nor to recovery of costs and expenses of ad- verse suit, 100 except as to reasonableness of amount, . 100 advantage to covenantee from giving notice, . . 238, 239 manner in which it should be given, .... 228 to 230 whether parol notice is sufficient, . . . 229, 230 payment by debtor after notice of assignment invalid as against assignee, 377 application to covenants for title, . . . 377 to 381 purchaser without, how aifected by doctrine of estop- pel, 430 character of, in Pennsylvania, to deprive purchaser of right to detain purchase-money, .... 721,722 OCCUPATION, right of, in house, when a breach of covenant, 113 OCCUPYING CLAIMANT LAW, nature of, 64 allowance for improvements, how regulated by . 320 OUSTER. See Eviction. 77^ INDEX. PARAMOUNT TITLE. See Eviction. PAROL EVIj)ENCE 129, 150 PAROL LEASE, what covenants for title implied in, . . 479 to 483 PARTIES, covenants when defeated by neglect of, . . . 187, 188 to action on covenants. See Assignee, Cove- nantor, Covenantee, Devisee, Heik, Exec- UTOK. PARTITION, warranty implied in, at common law, . . 470 to 473 inconvenience of, at present day, in requiring a double title, . 470 only extended to coparceners, . . 471 how affected by alienation, . . 471 how altered by statute of Hen. vin., 471 and to cases of partition by writ, . . 472 different in Pennsylvania in oases of ten- ants in common by descent, . . 472 remedy upon at present day, ... 473 PARTY OR PRIVY, effect of the words, . . . . 112 PERSONAL COVENANT. See Covenants for Title. PERSONAL PROPERTY, warranty of title, how far implied on sale of, 50 PERSONAL WRONG, covenants for title do not extend to, . 169 PEWS, liability of, for assessments, when breach of covenant against incumbrances, 113 PLEADING. See the different covenants. POSSESSION, when covenants for title wil! pass with, . . 388 to 393 nature of, to enable them to do so, . . . 393 doctrine that covenant for seizin is satisfied by transfer of, . . . . . . 20 to 47 And see Seizin. necessary to feudal transfer, . . . .15, 33, 436 how altered by conveyance under statute of uses, 33, 34, 436 abandonment of, when an eviction, . . 245 to 251 when sale under, covenant for seizin omitted, . . 105 person taking under execution of, is within covenant for quiet enjoyment against all claiming under ven- dor 179,180 INDEX. 77^ POWER, covenant arising from words of leasing implies power to demise, 478 PRESENTI, Covenant IN. See Covenants for Title. PRESUMPTION, of satisfaction of covenants from lapse of time, . 381,595 PRICE. See Damages. PRIVITY, definition of, when contained in limited covenants, 172 to 179 of estate, when necessary to enable covenants to run with land, 334, 335 PRIVY, effect of the word, 112,567 effect of adverse judgment on, . • . . . . 230 to 234 when within operation of estoppel, .... 427,435 PROCUREMENT, signification of the word within covenant for quiet enjoyment, 179 PRODUCTION, of title deeds, when may be called for under covenant for further assurance, . . 195 PURCHASE-MONEY, when the measure of damages on covenants. See Dam- ages. right to reclaim, must be by action of covenant, and not of assumpsit, 640 right to detain, depends solely on the covenants received, 613, 614, 634 except in cases of fraud or concealment, . 615 to 632 grounds upon which it has been based, set-off, 636, 638 638, 657 638 638 to 646 646 to 676 646 to 672 recoupment, preventing circuity of action, failure of consideration, doctrine, how applied in courts of law, mere absence of title, when no defence, but purchaser may detain when an eviction, actual or constructive, . . . 672, 673 or to the amount properly paid to supply defects, 673 to 676 doctrine, how applied in courts of equity, . . 676 to 700 mere absence of title, or adverse suit brought, no ground to restrain collection of, . 676 to 684 or to rescind the contract, . . . 684 relief, how afforded when present right to damages, 686 to 690 65 * 77i INDEX. PURCHASE-MONEY, quia timet jurisdiction, how exercised, . 691 to 700 insolvency or non-residence, . . 691 to 700 jurisdiction, when all parties to title are be- fore the Court, 6^6 to 700 principles enforced in South Carolina, . . . 700 to 706 early cases departed from, . . . 705 rule at present day, .... 706 principles enforced in Pennsylvania, . . . 703 to 743 case of Steinhauer t). Witman, ... 707 its correct application, . . . 710 to 714 purchaser's right to detain, depends on whether he agreed to run risk of title, . 714 when defect or incumbrance is unknown, 714 to 722 what must be character of defect, . 716 to 721 what will constitute notice, . . 721, 722 where known defect and no covenant, . 723 to 727 where known incumbrance and no cove- nant, 727 to 732 where covenant against a known defect or incumbrance, 733 to 740 where purchase-money secured by ground- rent, 740 to 743 when purchaser may set oflF his deimages, . 741 when defence an equitable one, . . 741 manner in which it is made avail- able, 742 PURCHASER, right of, to clear title, while contract exec- utory, 549, 565, 612 how aflFected by execution of convey- ance, 612, 613 rule of caweai emptor, how applied, . 614, 616 to 632 rights of, as respects purchase-money. See Purchase-Monet. what covenants demandable by. See Ven- dor. notice by, of incumbrance, no defence to ac- tion on covenants, 128 to 134 QUALIFIED COVENANTS. See Covenants for Title. QUANTITY, covenants for title do not extend to, . . . 524 QUIA EMPTORES, effect of statute of, upon warranty, . 467 QUIA TIMET, jurisdiction of equity in specific performance of covenants, 154 to 157, 387 INDEX. 775 691 to 700 163 163 164 164 163 163 164 165 168 169 170 171 171 172 QUIA TIMET, in detaining purchase-money, And see Purchase-Money. QUIET ENJOYMENT, covenant for, definition of, .... form of, .... in gronnd-rent deeds, when limited, usual covenant in a lease, and in ground-rent deeds, . but payment of rent not a condition precedent to recovery on cove- nant, .... does not extend to tortious interruptions, except those of the covenantor, . but not to mere trespassers, or of a particularly named person, or vf here so expressed in the deed words by which it is restrained to acts of ven- dor, construction of words acts and means, act of agent, when the act of the cov- enantor, default, . means, tide, or pro- curement, hy,from, or under, . distinction between, and covenant of warranty, . breach of, in general, And see Eviction. runs with the land. See Covenants for Title. pleadings upon, declaration must aver interruption to have been under lawful title, existing before conveyance, but adverse title need not be particularly set forth, i . form of declaration, measure of damages. See Damages. QUIT CLAIM. See Non-Claim. REAL COVENANTS, what are, 334, 336 assignee, when entitled to benefit of, . . . 336 to 393 And see Covenants for Title. 190 172 to 175 179 175 to 179 180 181 182 182 183 776 INDEX. REASONABLE ACTS, signification of the term, 188 to 193 REBUTTER, operation of the old warranty by way of, . . 4, 400 to 402 And see Estoppel. RECITAL, operation of, in passing an after-acquired estate, . . 407 covenants not to be impUed from, .... 488 to 490 no estoppel to purchaser caused by, .... 46S, 467 RE-CONVEYANCE, not necessary to recovery on covenants for title, 76 when prudent to offer it, ... . 78 when necessary in Pennsylvania in order to detain purchase-money, . . . 739 covenants contained in, restrained to acts of grantor only, . . . • . 457 to 460 RECOUPMENT, doctrine of, 632 REDDENDUM, implied covenants raised by, .... 476 REDEMPTION, equity of, when covenants will run with, . 360 to 366 RE-ENTRY, condition of, implied in partition and exchange, . 470 to 473 abolished by statute in England, ... 470 and does not exist under express covenants, . 472 REFORMATION, in equity of covenants, 129, 520 REFUSAL, to purchase paramount title no bar to purchaser's re- covery on covenants, 82, 145 REGISTRY ACTS, whether release of covenants for title comes within, 371, 372 effect of doctrine of estoppel upon, . . . 430 RELATIVE VALUE, of land, when to be considered in measuring damages, 90, 91 RELEASE, by nominal plaintiff, will not defeat rights of party actually interested, 377 by covenantee, after conveyance, of no effect, . . 369 but if made while still the owner, it will bind as between himself and covenantor, 868, 369 may be made by parol in United States, 369 INDEX. 777 RELEASE, by covenantee, contra, in England, . 369 at law, will bind subsequent pur- chaser, 371, S1i> whether within the registry acts, . 372, 873 RELIEF. See Equity and Pcjeohase-Money. RENT, in arrear, payment of, by covenantee, not necessary to hisreoavery on covenants, .... 164 when a breach of covenants for title, ... 173 eviction suspends payment of (and see Grotjnd-Rent and Purchase-Money.) RESCISSION, of contract, jurisdiction of equity as to, . . 616 to 632 not to be effected when partial failure of title, . 92 RESTRICTIVE WORDS, what, used in limited covenant for seizin, ... 19 against incumbrances, . Ill for quiet enjoyment, . 171,172 of warranty, . . 223 RESULTING TRUST, grantor estopped by covenants from setting up such an interest in consideration-money, as to cause, 463 REVERSION, covenants for title will pass with, .... 363, 387 RIGHT OP WAY, existence of, no breach of covenant for seizin, . . 51 but a breach of covenant against incum- brances, 113, 114 interruption of, a disturbance within covenant for quiet enjoyment, 181 concealment of, how far a fraud, .... 616,631 RIGHT TO CONVEY, covenant of, when synonymous with covenant for seizin, 105 when omitted, 105 when satisfied by transfer of actual seizin, 24 to 49, 106, 107 doctrine how connected with cham- perty acts, 30 form of, ...... . 107 breach of by infancy of grantor, . . 52, 107 pleadings on. See Seizin, Covenant of. damages on. See Damages. 778 INDEX. RIGHTS, of covenantee. See the several Covenants. when joint or several. See Joint and Several Covenants. of heir. See Heik. of devisee. See Devisee. of executor or administrator. See Executor. of assignee. See Assignee. KOADS, existence of, no breach of covenant for seizin, . . 51 whether breach of covenant against incum- brances, ....... 141 to 146 SEIZIN, one of the parts of title, ....... 15 livery of, necessary to feudal transfer of freehold, . . 15 when synonymous with possession, ..... 15 signification how modified, 17 seizin and disseizin, 16 covenant for, when synonymous with covenant of right to con- vey, 17 when omitted, . 17 seldom used in England at the present day, . 18 form of, 18 how qualified, ....... 19 definition of, ....... 19 original construction given to, ... . 20 how modified in parts of United States, . . 20 doctrine of actual seizin sufficient to support the covenant, 20 to 47 nature of the seizin, 23, 24 not a mere trespass, ... 20 origin of the doctrine, .... 20 distinction taken in Ohio, . . 22 applied also to covenant of right to convey, 24 denied in many States . . . . 26 to 29, 48 probable reasons for, .... 30 connected with champerty acts, ... 30 no estoppel caused by, under this doctrine, 417 breach of, by adverse possession . . 24,, 44 to 47, 271 easements, 51 incumbrances, ...... 51 removal of appurtenances to freehold, . 52 in pleading on, sufiioient to negative the words of the covenant, 53, 54 INDEX. 779 SEIZIN, covenant for, unnecessary to aver special damage, . . 54 or to set forth particulars of paramount title, . 54 burden of proof, on whom it lies, . . . 55 to 57 measure of damages. SET-OFF. See Purchase-Money. SEVERAL COVENANTS, See Joint and Several Covenants. SHARES, of a corporation, liability of, to assessments, when a breach of covenant for incumbrances, SHERIFF'S SALE, covenants for title will pass by, . SPECIALTY CREDITORS, rights of, at common law, . how enlarged by statute in Eng- land, in United States, . SPECIFIC PERFORMANCE, generally, when decreed, . not compellable when outstanding right of dower, of covenants for title, not decreed as a general rule, . exceptional cases on principles of quia timet, .... 154 to 157, 387 and when incidental to ad- ministration of assets, . 158 to 162 when covenants are contained in voluntary conveyance, . . 160 to 162 STATUTE, covenants implied by. See Grant, Bargain and Sell. STRANGER, adverse possession by, when breach of covenant for seizin, ....... not of covenant of warranty, interruption by, no breach of covenant for quiet enjoyment, SUIT, interruption by, when a breach of covenant for quiet en- joyment, TAXES, when breach of covenant for quiet enjoyment, . . 1 75 against incumbrances, . . 113 113 352 586 to 589 589 to 599 592 to 602 562 123 154 23, 24 259, 260 165 171, 222 780 INDEX. TENANT, what implied covenant arises from simple relation of landlord and, 479 to 483 payment of rent in arrear by, not condition prece- dent to recovery by, on covenants for title, . . 164 may not deny title of landlord, .... 261 to 268 origin of the rule, 262 exceptions to, 264 has no application to relations between ven- dor and purchaser, 268 TENANTS IN COMMON, by descent, warranty implied in Pennsyl- vania, in partition by deed between, . 472, 473 may join or sever, in actions on covenants, 606 right of action on covenants given to sur- vivor, when breach in lifetime of both, . 609 TENURE, warranty, an incident of, ... . 2, 204, 467, 468 TIMBER, right to cut, a breach of covenant against incum- brances, 114 TIME, effect of, in freeing land from lien of debts, . . . 594 to 596 presumption of satisfaction of covenants from lapse of, 602, 603 TITLE, definition of, 15, 25 TITLE PAPERS, whether production of, can be compelled un- der covenant for further assurance, . . 195 TORTIOUS ACTS, covenants for title do not extend to, . 165 except those of the covenantor him- self, 167 but not to personal wrongs commit- ted by him, of a particularly named person, when so expressed in the deed, TORTIOUS SEIZIN. See Seizin, Covenant for. TRESPASS, no breach of covenant for seizin, nor for quiet enjoyment, .... TRUSTEE, form of covenants usually given by, what covenants demandable from, . liability of, on those of greater scope. 169 170 171 20 165 112, ,566 565, 566 570 to 572 353 550 to 568 554 549 549 INDEX. 781 USES, operation by estoppel, of conveyance taking effect under statute of. See Estoppel. conveyances to, with whom covenants for title should be entered into, USUAL COVENANTS, what are, And see Vendor. in a lease, a question for ^he jury, attorney liable for not inserting, VENDOR, attorney of, responsible for unusual covenants, what covenants demandable from, general rules in England, what are usual covenants, a question for jury, vendor claiming by purchase, covenants against his own acts only, by descent, devise, or voluntary convey- ance, covenants against acts of ances- tor, testator, or grantor, . unqualified covenants demandable in mortgages though, when given for purchase-money, these covenants restrained to acts of mortgagor, and in common leases, difi'erence of practice in the United States, as to the covenants demandable from, subject to be controlled by terms of contract, 559 no presumption of notice of defect of title arises from presence or absence of covenants, .... 656 agreement by, to give sufficient deed not fulfilled by mere delivery of deed with covenants, . . 659 to 565 principle of construction of such agreements, 562 rule in equity as to doubtful title, . . 562 fiduciary vendors, ordinarily merely covenant that they have done no act to incumber, .... 565, 566 unless where they have also an interest, 567 or ask for specific performance by vendee, of contract made with tes- tator, I 566 cestui que trusts covenant to extent of their interest, 567, 568 test of application of rule, . . 568 66 549 to 553 554 550 to 653 552, 553 552 457 to 460 552 554 to 559 782 INDEX. VENDOR, fiduciary vendors, agents, power to sell given to, implies power to bind principal by covenants, . 569,570 fiduciary vendors personally liable on cov- enants of greater scope than are properly demandable from, 570 to 572 possible exceptions, . . . 572 .sheriffs, tax-collectors, &c., no covenants demandable from, . . . . 573 VOLUNTARY CONVEYANCE, vendor claiming under, what covenants demand- able from, 553 specific performance of covenapts contained in, when decreed, 160 to 162 VOLUNTARY DISPOSSESSION, when it constitutes an eviction 245 to 251, 288 to 293 VOUCHER, how employed, 8, 205, 228 when necessary to recover on warranty, . . 238 rule of the civil law, 238,239 WARRANTY, implied as incident of tenure, .... 2 from partition and exchange, . . 8 from the word dedi, .... 2 how limited by statute de bigamis, . . 2 quia emptores, . 3 express, when introduced, .... 4, 204 did not restrain eifect of implied warranty, 3 efiect of, as a means of redress, . . 4, 205 by way of rebutter, . . . 4,394 descended on heir at common law, 4, 11 but as to rebutter, it operated on the customary heir, . . . 399 depended on receipt of other lands by the heir, . . . . . 394 by tenant by the curtesy, how restrained by statute of Gloucester, ... 4, 395 by tenant for life, how restrained by statute of Hen. VII. and of Anne, . 7, 395, 396 statute of Anne, how far in force in the United States, . . • . 397, 398 collateral, when and why introduced, . . 5, 7, 204 barred the heir without assets, . . 395 how restrained by statute of Anne, . 7, 395 where re-enacted in United States, . 397, 398 remedy upon by warrantia chartce, ... 8, 206 INDEX. 783 WARRANTY, remedy upon by voucher, .... 8, 205 recovery on, whether limited to other lands, . 205, 206 used as a personal covenant as to leaseholds, . 9, 223 distinction between, and personal covenants, 12, 16, 219 to 232 of chattels, 50 covenant of, principal covenant for title in United States, . 203 distinction between, and ancient warranty, . 204 to 216 covenant for quiet en- joyment, . . 221 covenants for seizin and against incumbrances, 288 form of, 224 when limited, 225 covenantee may give notice of adverse suit to covenantor, 226 what constitutes proper notice, . . 228 whether parol or written, . . 229 time within which ]^ should be given, 231 effect of notice, when conclusive on covenantor, . 230 when not, ..... 233 notice not essential to recovery on cove- nant, 237 breach of, generally, covenant does not extend to warrant quantity of land, .... 524 *' nor, it seems, to water which covers it, . 293 nor to release to State of damages from exercise of right of eminent domain, 166, 295 to 305 by eviction, actual eviction, dispossession by process of law, . 242 by entry, . . 244 voluntary abandonment, . . 245 to 251 constructive eviction, by inability to get possession, . 251 to 260 by lease or purchase of adverse title when established by a judg- ment, 260 to 278 when not thus estabhshed, 278 to 282 where eviction is of something which represents the land, . 293 to 305 784i INDEX. WARRANTY, pleadings on, form of declaration, .... 308 measure of damages. WANT OF ESTATE, effect of, on rights of assignee of cove- nants, 382 to 393 WARRANTIA CHARTJi;, writ of, one of the remedies on warranty, 8 in what actions allowed, . . 205 nature of the remedy by means of, 206 quia timet implacitari, . . . 206 notice to warrantor, of adverse ac- tion necessary to recovery upon, 238 recovery on, whether limited to other lands,' .... 205 WATER, covenant of warranty does not, it seems, extend to . 293 WATERCOURSE, right to draw water from, no breach of covenant for seizin, .... 51 breach of covenant against incum- brances 113, 114 distinction between natural and artificial watercourse, 116 WAY, right of, how far a breach of covenants, . . 51,113,118 concealment of existence of, how far a fraud, . . 616, 631 WIDOW. See Dower and Married Women. WILL, vendor claiming under, what covenants demandable from, 553 WITNESS, covenantor, when made competent, by release of covenants, 41, 380 WORDS, signification of, acts, means, 172 . 172 to 179 179 . 112, 567 . 188 to 193 consent, default, means, title or procurement, party or privy, . reasonable act, . YIELDING AND PAYING, implied covenants arising from these words, . . . . 476 KF 661 R25 i860 Author Vol. Rawlw, William Heniy Title Copy A practical treatise on the Isw or cov< inaiius lor oj.i,xt! Date Borrower's Name j